OTR v The State of Western Australia [No 2]
[2022] WASCA 123
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: OTR -v- THE STATE OF WESTERN AUSTRALIA [No 2] [2022] WASCA 123
CORAM: BUSS P
MAZZA JA
VAUGHAN JA
HEARD: 25 MARCH 2022
DELIVERED : 27 SEPTEMBER 2022
FILE NO/S: CACR 74 of 2020
BETWEEN: OTR
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram: DAVIS DCJ
File Number : IND 667 of 2018
Catchwords:
Criminal law - Sentence appeal - Various sexual offences against children - Total effective sentence of 9 years' imprisonment ordered to be served cumulatively on existing 5 year sentence - Individual sentences not challenged - Whether total effective sentence of 14 years' imprisonment bears a proper relationship to the criminality involved in the offending - Whether length of sentence manifestly excessive and amounts to a crushing sentence
Legislation:
Nil
Result:
Leave to appeal on ground 2 refused
Appeal dismissed
Category: D
Representation:
Counsel:
| Appellant | : | In person |
| Respondent | : | R G Wilson |
Solicitors:
| Appellant | : | In person |
| Respondent | : | Director of Public Prosecutions (WA) |
Case(s) referred to in decision(s):
ARK v The State of Western Australia [2014] WASCA 45
Bell v The Queen [2001] WASCA 40
CAND v The State of Western Australia [2018] WASCA 101
CJF v The State of Western Australia [2012] WASCA 69
ERA v The State of Western Australia [2013] WASCA 163
EXF v The State of Western Australia [2015] WASCA 118
FWB v The State of Western Australia [2016] WASCA 118
Gaskell v The State of Western Australia [2018] WASCA 8
GHK v The State of Western Australia [2014] WASCA 19
GMS v The State of Western Australia [2009] WASCA 107
Gulyas v The State of Western Australia [2007] WASCA 263
JJR v The State of Western Australia [2018] WASCA 51
Kabambi v The State of Western Australia [2019] WASCA 44
KMB v The State of Western Australia [2010] WASCA 212
KSN v The State of Western Australia [2017] WASCA 156
LFG v The State of Western Australia [2015] WASCA 88; (2015) 48 WAR 178
LJH v The State of Western Australia [2016] WASCA 155; (2016) 261 A Crim R 355
LWD v The State of Western Australia [2017] WASCA 174
LYN v The State of Western Australia [2019] WASCA 45
MHE v The State of Western Australia [2019] WASCA 133
Mills v The State of Western Australia [No 2] [2017] WASCA 52; (2017) 265 A Crim R 484
MRW v The State of Western Australia [2022] WASCA 98
NDY v The State of Western Australia [2020] WASCA 172
OTR v The State of Western Australia [2021] WASCA 200
Pennetta v The State of Western Australia [2013] WASCA 234
RDC v The State of Western Australia [2012] WASCA 16
Roffey v The State of Western Australia [2007] WASCA 246
The State of Western Australia v FJG [2012] WASCA 206
The State of Western Australia v GT [2020] WADC 65
The State of Western Australia v PJW [2015] WASCA 113
UGN v The State of Western Australia [2021] WASCA 10
VIM v The State of Western Australia [2005] WASCA 233; (2005) 31 WAR 1
WRT v The State of Western Australia [2020] WASCA 68
YDN v The State of Western Australia [2018] WASCA 62
JUDGMENT OF THE COURT:
Introduction
This is an appeal against sentences imposed by Davis DCJ. It follows an earlier unsuccessful conviction appeal.[1] The circumstances of the offending are recounted in detail in the court's reasons for decision on the conviction appeal. These reasons should be read with the court's reasons in OTR [No 1].
[1] OTR v The State of Western Australia [2021] WASCA 200 (OTR [No 1]).
In proceeding IND/667/2018 the appellant was convicted of 15 counts after trial before Davis DCJ sitting alone without a jury. The convictions are summarised in pt B of the appendix to these reasons. In substance, however, the appellant was convicted of sexual offending in relation to three complainants. First, as to GN - a boy - one count of indecently dealing with a child under the age of 14 years. Second, as to JP - the appellant's nephew - four counts of indecently dealing with a child of or over the age of 13 years and under the age of 16 years. Third, as to CT - the appellant's daughter - 10 counts. Nine of these concerned sexual penetration of a child under the age of 13 years. The remaining count was an offence of procuring a child under the age of 13 years to engage in sexual behaviour.
On 15 May 2020 Davis DCJ sentenced the appellant to a total effective sentence of 9 years' imprisonment (the individual sentences for each count are summarised in pt B of the appendix to these reasons).
The appellant was a sentenced prisoner at the time of the sentencing by Davis DCJ.
On 10 September 2019, in proceeding IND/666/2018, the appellant was sentenced by Vernon DCJ to a total effective sentence of 5 years' immediate imprisonment, backdated to 26 July 2017. The sentence followed pleas of guilty with respect to 10 offences committed during 2016 and 2017. The offences concerned sexual offending against two boys (AB and LW) under the age of 13 years.
The convictions and sentences the subject of the 5 year total effective sentence imposed by Vernon DCJ are summarised in pt A of the appendix to these reasons. In relation to AB the offending consisted of six counts of indecent dealings, one count of sexual penetration by engaging in fellatio and one count of attempted sexual penetration. In relation to LW the offending consisted of two counts of indecent dealings. The appellant has not appealed against the sentences imposed by Vernon DCJ.
Davis DCJ ordered that the 9 year total effective sentence the subject of the 15 counts in proceeding IND/667/2018 was to be served cumulatively on the existing 5 year sentence imposed by Vernon DCJ. Accordingly, having regard to the two sentencing outcomes, the appellant is to serve an overall total effective sentence of 14 years' imprisonment as and from 26 July 2017. Both Vernon DCJ and Davis DCJ ordered that the appellant be eligible for parole.
There are two grounds of appeal. There is no challenge to any of the individual sentences. Rather, the appellant contends that:
1.The length of the sentence (ie the 14 year overall total effective sentence) infringes the first limb of the totality principle in that the sentence imposed does not bear a proper relationship to the criminality involved in all of the offences (ground 1).
2.The length of the sentence (ie the 14 year overall total effective sentence) infringes the second limb of the totality principle in that it is manifestly excessive and amounts to a crushing sentence (ground 2).
Leave to appeal has been granted in relation to ground 1. The question of leave to appeal on ground 2 was referred to the appeal hearing.[2]
[2] Order of Buss P made 20 May 2021 WAB 79.
For the reasons that follow we would refuse leave to appeal on ground 2 and dismiss the appeal.
The circumstances of the offending
It is necessary to refer to the offending the subject of IND/666/2018 (for which the appellant was sentenced by Vernon DCJ) and the offending the subject of IND/667/2018 (for which the appellant was sentenced by Davis DCJ).
The sexual offending for which the appellant was sentenced by Vernon DCJ
The offending the subject of IND/666/2018 involved two victims, both young boys. The first victim, AB, was aged 11 to 12 years old at the time of the offending and the second victim, LW, was 11 years old. The offending against AB and LW occurred between August 2016 and July 2017. The appellant had developed a friendship with AB's mother and used that friendship to gain access to AB and to groom him. LW visited the appellant's home as a friend of one of the appellant's daughters.
In relation to the first victim, AB, the appellant pleaded guilty to six counts of indecent dealings with a child under 13 years, one count of sexual penetration of a child under 13 years and one count of attempted sexual penetration of a child under 13 years.
The first three offences of indecent dealings involved the appellant showering with AB, washing AB and hugging him in the shower on three different occasions (counts 1, 2 and 3). On another occasion in July 2017 the appellant committed the sexual penetration, three further indecent dealings and an attempted sexual penetration against AB (counts 4 to 8), one after the other. This offending started with the appellant lying on a mattress with AB watching a movie. The appellant was drinking alcohol and provided an alcoholic drink to AB. After AB undressed himself, intending to change into his pyjamas, the appellant told him to stay undressed and then the appellant undressed himself. The appellant performed fellatio on AB, then took hold of AB's hand, placed it on the appellant's penis and encouraged AB to masturbate him. The appellant then placed his hand on AB's buttocks. AB pulled away and went and had a shower. The appellant got into the shower, naked, with AB, rubbed his buttocks and then attempted to insert his penis into AB's anus. He then washed AB, hugging him tightly.
In relation to the second victim, LW, the appellant was convicted of two counts of indecent dealings with a child under 13 years (counts 9 and 10), both of which occurred on two different occasions between 1 June and 30 July 2017. The first incident of indecent dealing involved the appellant getting LW to sit on his lap, placing his hands over LW's groin area and using his thumbs to stimulate LW's penis. The second incident also involved the appellant making LW sit on his lap, shifting his hands close to LW's groin area, resting his hands on LW's penis (over his clothes) and moving his thumbs over LW's penis.
The sexual offending for which the appellant was sentenced by Davis DCJ
Davis DCJ made detailed findings as to the appellant's offending against GN, JP and CT in a schedule to her written reasons.[3] Her Honour incorporated those findings in her sentencing remarks (ts 1182 - 1186). It is convenient to reproduce those findings at this point:[4]
[3] The State of Western Australia v GT [2020] WADC 65, sch. See also ts 1180 - 1181 as to additional observations that Davis DCJ made as to the circumstances of the appellant's relationship with GN and JP.
[4] The descriptors of the complainants have been amended to coincide with the descriptors adopted in these reasons, ie GN, JP and CT.
Offending against GN
Count 1
1.The offender and the victim, GN are second cousins. They met through their mothers when GN was aged 10 and the offender aged 19. The offender and GN began spending time together doing activities including going to the beach (the offender being a member of a local surf club) and water parks.
2.At the time of count 1, in mid 1983, GN was 11 years old and the offender was 20 years … It was around the time of GN's birthday and the offender suggested that they could celebrate his birthday and could have a few drinks. The offender took GN to the beach during the afternoon to a local surf club, going for a paddle on the club boards there. The offender drove back to his parents' home, where he then lived, with GN in the passenger seat. The offender stopped and bought some beer on the way back to his parents' home. The offender told GN that his parents were away for the weekend and they could have a few drinks. GN had never drunk alcohol before. In the living room of the house the offender poured drinks into small glasses and he and GN played a game where they had to drink as much as possible in a short period of time. GN was drunk, feeling dizzy and a little bit ill.
3.The offender pulled out a mattress from the bedroom and put that on the floor in front of the television and the two of them sat or laid on the mattress to watch a movie. While GN lay on his left hand side facing the television, the offender lay behind GN 'spooning' him. Somehow, although GN could not remember how, both he and the offender were only wearing briefs. The offender put his hand on GN's penis and started stroking it, over his briefs, moving it up and down.
Offending against JP
4.JP is the nephew of the offender. At the time of these offences JP was aged between 13 and 14 and the offender was aged between 36 and 38.
Count 4
5.JP and the offender were in the living room of the offender's house watching TV. JP and the offender would often talk about sexual things. On this occasion, JP asked the offender whether his penis was the right size or too small. The offender suggested that they measure it and find out. The offender got up to get a ruler and came back to the couch. Both the offender and JP both pulled their pants down and measured each other's penises. As this occurred both JP's and the offender's penises were erect. Each stroked their own and each other's penises to get them hard in order to measure them. The offender masturbated to ejaculation.
Count 5
6.JP was at the offender's home, in the living room sitting on a couch watching tv when 'one thing led to another' and his hand was on the offender's penis. JP started to masturbate the offender on top of his clothes. The offender remained seated until he ejaculated - he told JP that he had ejaculated. The offender then got up to get tissues.
Count 6
7.Count 6 occurred when the offender and JP travelled to a farm owned by the offender's wife's brothers (also JP's uncles, JP's father's brothers). JP, his father and the offender drove to the farm together in JP's father's car, with JP's father driving.
8.JP had taken a pornographic magazine on that trip which he had placed under the driver's seat. This was a magazine which JP had obtained from a friend's father's garage and which the offender had asked him to bring on the trip.
9.At lunchtime, the offender and JP went together to get lunch from a lunch bar down the road. The offender drove. Before reaching the lunch bar, he pulled the car over to a side street or gravel track and asked JP to get the magazine. JP got the magazine out. The offender then pulled down his pants and while looking at the magazine masturbated to ejaculation, calling out the name of one of the girls in the magazine. The offender grabbed some tissues from his pocket, ejaculated into the tissues, then pulled his pants back up, threw the tissues out the window and drove off.
Count 7
10.JP, the offender, JP's grandmother and grandfather and also the offender's wife, P were at JP's grandparents' house. They all went out and left JP and the offender at the house. The two of them were in the tv room. JP had the same pornographic magazine as count 6, which the offender had told him to bring with him. JP had put this magazine inside another magazine so no one could tell what they were looking at it [sic].
11.JP sat next to the offender, on the offender's right. Together they looked at the magazine which was an X-rated magazine. One of the photos in the magazine was of a man with red testicles having sex with a woman. JP asked the offender why the man in the photo had red balls. The offender told JP that this was because the man was about to ejaculate. The offender, who had pulled his pants down once everyone had left and started playing with his penis, then ejaculated. The offender went and cleaned himself up and JP then hid the magazine. The two of them returned to watching TV. There was no discussion about what had happened.
Offending against CT
12.CT is the offender's biological daughter. At the time of these offences CT was aged between 4 and 7 and the offender was aged between 37 and 43.
Count 8
13.At the time of count 8, CT was 6 years old. She was inside the shower of the ensuite bathroom in the family home and the offender was standing outside the shower. The shower had a detachable showerhead which could be removed from its fitting and be hand-held. The offender took the showerhead and moved it down CT's back, asking her if it felt nice. He then moved the showerhead onto her vagina and held it there. The part of the showerhead on her vagina was the shower rose. The offender then put his index finger in her mouth and then put his finger inside her vagina and moved it in and out. The detachable showerhead remained on her vagina.
Counts 9, 10 and 11
14.Counts 9, 10 and 11 occurred on the same day, although counts 10 and 11 occurred some hours after count 9. CT was 7 years old.
15.Count 9 occurred in the ensuite bathroom of the family home. CT was inside the shower and the offender stood on the outside of the shower, with the door open. The offender had a bottle of conditioner and first rubbed some onto his hands, then rubbed it on CT's body and then on her vagina. He then put his finger in her mouth and then into her vagina. As the offender's finger went into CT's vagina, it stung and hurt her because as she explained it, 'it felt like it went all the way in and was held there for quite some time'. After the offender removed his finger from her vagina it was stinging a lot.
16.Counts 10 and 11 followed count 9, on the same day. After shower [sic], when CT was in bed, her vagina was stinging. She got out of bed and told her mother and father, the offender, who were both in the kitchen/living area of the family home, that her vagina was stinging. They told her to go back to bed and they would bring something in, so she went back to bed. The offender came back with some Savlon cream. When he came into her bedroom she had a stick of lip gloss. She did not know why she was doing it, but she was moving this in and out of her vagina. The offender did not say anything, but just left. He came back and she was not doing this anymore. He got onto the bed next to CT and asked her to show him what she was doing before, and said he wanted to show her how to do it. He inserted his index finger into her vagina and moved his finger in and out of her vagina. This is the conduct the subject of count 10.
17.After a while the offender asked CT to show him again what she had done with the stick of lip gloss. She used the lip gloss as he asked and moved it in and out of her vagina. This is the conduct which is the subject of count 11. He then told her to feel his penis. He was wearing boxers. She felt his penis, it was hard and the offender told her it was good that it was hard.
Count 12
18.Count 12 occurred in the toilet at the back of the house when CT was 5 years old. She and the offender were in the back toilet - she went into the toilet first and the offender followed her. The offender wanted to show her how to go to the toilet like a boy. He called it the 'boy dance'. He showed her how to stand up and lean over the toilet. He stood next to her on her right and he went to the toilet and said 'like this'. Then she tried to do it but not much of it went into the toilet bowl. The offender cupped his hands underneath her vagina and splashed her urine back up onto her vagina. Once the splashing stopped, the offender, took his penis out of his boxer shorts. He held it in his hand, moving his hand up and down and then inserted his penis into her mouth. He pushed her head onto his penis. He had one hand on her head and one hand still on his penis, moving her head. She felt what she thought was urine in her mouth. She did not want to swallow it but she did.
Count 13
19.Count 13 was another incident in the back toilet, when CT was 5 years old, when the offender inserted his penis in her mouth. This time the offender was angry. CT had to bend over a little bit and saw that her brother's stool, that he used when using the toilet, was still in the toilet. The offender pulled her head and hair hard, holding her mouth onto his penis. His penis was inside her mouth; he had his other hand on his penis. She could not breathe. She felt like she was going to be sick, but she was not sick. When he took his penis out of her mouth, he did not let go of her hair but kept his hands on her head, holding it tightly, over the toilet bowl, and he then flushed the toilet close to her face. She could not remember how this incident ended, however, she felt what she thought was urine in her mouth.
Counts 15 and 16
20.Counts 15 and 16 occurred during the same incident in CT's bedroom. At the time CT was 7 years old. She was in her bed, meant to be asleep. She was upset about something and distracted, and was peeling nail polish off her nails. The offender came in and CT pretended to be asleep, on her back. The offender got into bed with her, under the covers, then started rubbing his hand on the outside of her vagina in a circular motion. He pulled her underwear down and rubbed her vagina again, in circles and then he put his finger in and out of her vagina. He then moved on top of her, with his body on top of hers. She felt like she was being pinned down. The offender then inserted his penis into her vagina. She felt it go in, but not very far, and it hurt.
Count 17
21.Count 17 was another incident in the ensuite bathroom when CT was 4 years old. The offender was in the shower with her, both of them were naked. The offender put his finger in her mouth. His penis was hard. He held her head and put his penis in her mouth. He moved her head. While this was happening the shower was still on.
Count 18
22.Count 18 was another occasion in the ensuite bathroom when she was in pre-primary, about 5 or 6 years old. She had an old towel around her, which was stained. A heat lamp had just been installed in the bathroom. The offender was standing in the bathroom with her and told her that the heat lamp would help her dry, so she stood under the heat lamp. The offender had an electric toothbrush, which he placed on the outside of CT's vagina. He used the end of the toothbrush which had bristles, but flipped it over to place the plastic non bristle side against what she now knows is her clitoris. She felt the bristles from the toothbrush touching the surrounding areas. She felt what she thought of at the time were shivers and tingles.
In addition, Davis DCJ found that the offences against JP (the appellant's nephew) and CT (the appellant's daughter) were representative of an overall pattern of conduct towards each of them over time. In the case of JP this was a period of about 2 years. In the case of CT this occurred over a period of about 3 or 4 years (starting very soon after the offending against JP ended) which stopped when she was about 8 years old (ts 1186 - 1187).
The appellant's personal circumstances
The appellant was 56 years old at the time of being sentenced by Vernon DCJ and 57 years old at the time of being sentenced by Davis DCJ.
The offending was committed between the early 1980s and mid‑2017. The appellant was 20 or 21 years of age at the time of the offence involving GN, 36 to 38 years of age at the time of the offences involving JP and 38 to 43 years of age at the time of the offences involving CT. The appellant was 53 to 54 years of age at the time of the offences involving AB and LW. By the time the appellant was sentenced by Vernon DCJ, he had spent a little over two years in custody on remand.
The appellant was the youngest of three children. His father died when he was two years old. The appellant's mother remarried. The appellant described a volatile relationship between his mother and step‑father which resulted in him spending time with his grandparents. The appellant was bullied throughout primary school by his peers and a teacher. The appellant suffered some physical injuries and attended a psychologist because he exhibited the potential for self-harm.
In his early twenties the appellant completed a Bachelor of Education and became qualified as a schoolteacher. He was posted to a country town. While there he met a female teacher who became his wife. The appellant married at 23 and had three children - CT (born mid-1998), a son (born 1999) and a daughter (born 2005). In 2010 the appellant was acquitted of a charge alleging sexual offending against a child. Although the appellant was successful in his defence of the charge, his 27-year career as a teacher ended. Thereafter the appellant started a roof plumbing and handyman business. The appellant was described by Vernon DCJ as having a strong employment history. The appellant and his wife separated in 2017 following the appellant's arrest on 26 July 2017 in relation to the charges of sexual offending against AB.
The appellant had a limited prior criminal history - a conviction for careless driving in 1988.
As at the time of his sentencing by Vernon DCJ the appellant was receiving treatment in custody for anxiety, depression, hypertension and gastric ulcers.
A psychological report was prepared for the sentencing before Vernon DCJ. The psychologist reported that the appellant had a strong suppressed attraction to young boys - an interest that had existed since the appellant was a child. The appellant's deviant sexual arousal triggered pleasure and then self-loathing. Times of stress could trigger thoughts about young boys. The appellant was fully aware of his deviant sexual interest but had never explored options for treatment. The appellant informed the psychologist that when deviant sexual fantasies surfaced he thought about his victims, immediately felt horrified, and arousal stopped. The psychologist observed that more appropriate strategies were required. The appellant required intervention to explore his sexual behaviour and develop strategies to better manage deviant sexual arousal.
Vernon DCJ accepted that the appellant was ashamed of his deviant sexual interests and wanted to seek treatment to help resist the impulse to act on those feelings.
The appellant had done a number of courses while incarcerated. He was also the subject of a number of references in support from family members (his mother, sister and brother) and a friend and former colleague. These references spoke to the appellant's remorse in respect of the offending to which he had pleaded guilty and his qualities, work ethic and abilities as a teacher. The appellant wrote to Vernon DCJ to express his remorse for his offending the subject of IND/666/2018.
The sentencing disposition
Again, although the appeal concerns the sentence imposed by Davis DCJ in relation to the offending the subject of IND/667/2018, it is necessary to refer to the sentencing dispositions of both Vernon DCJ and Davis DCJ given that the appellant's grounds of appeal challenge the overall total effective sentence of 14 years' imprisonment.
The sentencing disposition before Vernon DCJ
Vernon DCJ characterised the appellant's offending in relation to AB as being part of a persistent course of conduct involving grooming and planning - the appellant was said to have 'emotionally manipulated' a vulnerable young boy (ts 64 - 65). By contrast, the offending concerning LW was 'more opportunistic' (ts 65). In respect of both victims the appellant was in a position of trust and authority, an aggravating circumstance (ts 65).
The sentencing judge referred to a victim impact statement provided by AB. AB had been significantly affected by what the appellant did to him. Vernon DCJ observed that it was likely that AB would remain significantly affected for some time (ts 65).
In terms of mitigation, Vernon DCJ referred to:
1.The appellant's pleas of guilty - for which her Honour determined to discount the appellant's sentence by 20% (ts 68).
2.The appellant having a very limited criminal record with no prior criminal convictions of the type for which he was being sentenced (ts 68).
3.The appellant being genuinely remorseful (ts 69).
Vernon DCJ said that the appellant had various protective factors against reoffending. However, in light of the psychologist's report - which her Honour accepted - Vernon DCJ concluded that the appellant was an above average risk of reoffending. Thus personal deterrence was a significant factor in the sentencing disposition (ts 68 - 69).
After referring to relevant sentencing factors, in orthodox terms, Vernon DCJ imposed terms of imprisonment for the individual counts and then dealt with the issue of totality (ts 69 - 70). As previously mentioned, her Honour imposed a total effective sentence of 5 years' immediate imprisonment.
The sentencing disposition before Davis DCJ
Davis DCJ had read and referred to Vernon DCJ's sentencing remarks (ts 1181 - 1182, 1187 - 1188).
Her Honour identified a number of aggravating factors. They were:
1.The nature of the conduct in question in terms of the degree of perversion or deviance demonstrated - in this respect Davis DCJ referred in particular to the offending by the appellant against his daughter (CT). The counts relating to digital penetration, penetration by fellatio and penile penetration elevated the seriousness of the offending to a 'very high level' (ts 1188).
2.The relative ages of each child and the appellant at the time of the offending (ts 1188 - 1189). Relevantly:
(a)GN was 11 years old and the appellant was 20 or 21 years of age;
(b)JP was 13 to 14 years old and the appellant was 36 to 38 years of age;
(c)CT was 4 to 7 years old and the appellant was 38 to 43 years of age.
3.The appellant was in a position of trust or authority with each of the victims. All three had a familial connection and close relationship with the appellant. The offences involved a significant abuse of trust. The appellant took advantage of his position of trust to deprive each child of his or her innocence for his own sexual gratification (ts 1189).
4.There was an element of coercive or forceful behaviour in the offending involving GN and CT (ts 1189 - 1190).
5.All three victims were corrupted by the commission of the offences (ts 1189 - 1190).
6.In relation to JP and CT the offending was repeated. In this respect Davis DCJ repeated her finding that these offences were representative of a pattern of behaviour by the appellant towards JP and CT. Her Honour said that the offending was not out of character or an aberration (ts 1190).
As an additional factor the sentencing judge had regard to the impact of the offending on the three victims. Her Honour referred to victim impact statements provided by GN and CT. GN described problems of depression, drug use and despair consequent on the offending. In addition to CT's victim impact statement, Davis DCJ referred to CT's evidence. CT described mental health issues such as depression, self-harming and eating disorders. CT had relationship and trust issues, issues with self-esteem and issues with her sense of self‑worth. Davis DCJ concluded that the appellant's offending had done considerable harm to both GN and CT and the psychological consequences of the appellant's offending were said to be likely to affect them for the rest of their lives (ts 1190 - 1191).
There was little in terms of mitigation (ts 1191). The appellant was given some discount for youth in relation to the offending against GN (ts 1189, 1191). There was no plea of guilty (ts 1191). There was no remorse or contrition. Nor had the appellant shown any insight into the offending or made any effort to achieve rehabilitation (ts 1190, 1191). The appellant had not accepted responsibility for his criminal conduct (ts 1191).
Davis DCJ referred to the appellant's limited criminal record but said, correctly, that the fact that the appellant was otherwise of good character carried little weight in sexual offending against children of the type before the court (ts 1191). Her Honour also referred to the delay between the offending and the trial and subsequent convictions. Davis DCJ said, however, that delay was not a significant mitigating factor unless there had been some rehabilitation. That was not the case given the offending against AB and LW (ts 1191).
Davis DCJ imposed sentences for each count. Then her Honour turned to issues of totality. Davis DCJ said that the offending for which she was sentencing involved different offending, and different victims, from the offending and the victims in the sentencing before Vernon DCJ. So, in theory, the term of imprisonment being imposed was to be served cumulatively with the sentence the appellant was already serving for his offending against AB and LW (although acknowledging that this circumstance raised the issue of totality) (ts 1192).
Davis DCJ stated:
The total effective sentence I impose must bear a proper relationship to the overall criminality involved in all of the offences, not just the multiple offences for which I'm sentencing you today but also the other offences for which you are serving your current term of five years. I need to take into account that in imposing additional time which you must serve in prison, the sentence is considered to increase considerably in severity. So the longer a sentence is, the more severe it is. In addition, there is not the same demand for retribution or the same requirement for personal deterrence in the sentence I'm imposing today because that most likely will have already been achieved in large measure by the sentence imposed by [Vernon DCJ] last year. I have to look at all your offending in its entirety and the total effective sentence needs to take into account the five years that you're serving.
The second limb of the totality principle is that the total effective sentence I impose should not constitute a crushing sentence. That is, it should not destroy any reasonable expectation of a useful life after your release from custody.[5]
[5] ts 1192 - 1193.
Davis DCJ addressed the issue of totality in this way. First, her Honour made the sentence on count 16 the head sentence. Second, her Honour reduced the term for count 1 (as to GN) from 10 months' imprisonment to 6 months' imprisonment. Third, her Honour reduced the term for count 5 (as to JP) from 2 years' imprisonment to 18 months' imprisonment. Fourth, her Honour ordered that counts 1, 5 and 11 be served cumulatively on count 16 and all remaining counts be served concurrently. Finally, her Honour ordered that the 9 year total effective sentence on the 15 counts before her be served cumulatively on the appellant's existing 5 year sentence (ts 1193).
Her Honour then stated:
Having one last look, I believe that this sentence results in a total effective sentence which bears a proper relationship to the overall criminality involved in the offences viewed in their entirety having regard to the circumstances of this case, including those personal to you.
I consider that the total term of 14 years is required in order to properly reflect the very serious nature of your offending as a whole, the fact that there is a total of five victims, that the offending against two of these victims, [AB] and [CT], involved sexual penetration, which is of course the most serious of offending, and to give effect to the sentencing considerations of appropriate punishment and general deterrence and the need to protect vulnerable children.[6]
[6] ts 1193 - 1194.
The parties' submissions
In support of ground 1, the appellant, who appeared for himself, contended that the totality of the 14 years' imprisonment imposed by the two sentences was disproportionate to and did not bear a proper relationship with the overall criminality involved in the offences for which he had been convicted. He submitted, in particular, that the initial period of imprisonment of 5 years as imposed by Vernon DCJ would lead to rehabilitation and the need for retribution following this sentence would be significantly reduced. The appellant argued that the offending relating to GN, JP and LW was at the lower end and, in this respect, that the sentence imposed in relation to AB sufficed to meet the objectives of retribution and rehabilitation.[7]
[7] WAB 81.
While not, in terms, alleging any express error as to Davis DCJ's findings regarding the impact of the offending on GN, JP and CT, the appellant claimed that there was much evidence of a continuation of 'very positive relationships' between himself and the parties up to his incarceration in 2017.[8] The appellant then referred to the delay between the offending and the sentences. He argued that this delay, coupled with the earlier 5 year sentence, meant that personal deterrence and progress towards rehabilitation were positive mitigating factors.[9]
[8] WAB 82.
[9] WAB 82.
The appellant referred to JJR v The State of Western Australia,[10] LYN v The State of Western Australia[11] and various authorities mentioned in LYN[12] in submitting that the 14 years was 'very high' when compared with other cases.[13] He submitted that the offending in the other cases was more egregious than his offending but said that those offenders had received a lesser total effective sentence.[14] The appellant submitted that this demonstrated, when all factors were examined more closely, that the 14 year total effective sentence was unreasonable or plainly unjust and there must have been some misapplication of the principle of totality.[15]
[10] JJR v The State of Western Australia [2018] WASCA 51.
[11] LYN v The State of Western Australia [2019] WASCA 45.
[12] Appeal ts 90 - 93. In oral submissions the appellant referred to: CAND v The State of Western Australia [2018] WASCA 101; ERA v The State of Western Australia [2013] WASCA 163; GMS v The State of Western Australia [2009] WASCA 107; KMB v The State of Western Australia [2010] WASCA 212; LJH v The State of Western Australia [2016] WASCA 155; (2016) 261 A Crim R 355; and YDN v The State of Western Australia [2018] WASCA 62.
[13] WAB 82.
[14] Appeal ts 92 - 93.
[15] Appeal ts 90 - 93; WAB 82.
As to ground 2, the appellant characterised the 14 year term of imprisonment as a 'near whole of life' sentence which was 'extremely' excessive and crushing for a man of his age who had no criminal history.[16]
[16] WAB 81. See also Appeal ts 95.
The appellant referred to the average life expectancy for a person born in the year of his birth (said to be 70 years) and the circumstance that, if the whole of the sentence was served, he would be released shortly before he was 69 years of age - something that was said to remove any reasonable expectation of a useful life following release. This too was 'manifestly excessive and crushing'. All the more so as it was to be served in the appellant's remaining 'prime' years (also described as his 'golden years') leaving a poor expectation of quality of life and limited lifespan on release. Moreover, on release the appellant would have little or no support mechanisms which also contributed to the crushing nature of the sentence as imposed by Davis DCJ.[17]
[17] Appeal ts 90, 93 - 96; WAB 83.
The appellant contended that the appropriate sentence was one where the total effective sentence was 10 years' imprisonment. He said that the sentences for the offending against GN and JP should be served concurrently with the 5 year sentence imposed by Vernon DCJ in relation to AB and LW. The appellant further submitted that the sentence in relation to his offending concerning CT should be reduced to 5 years and accumulated with the sentence imposed by Vernon DCJ so that the overall total effective sentence was 10 years' imprisonment.[18]
[18] Appeal ts 90, 93; WAB 83.
The respondent emphasised that the overall total effective sentence of 14 years' imprisonment comprised sentences for 25 offences against five child victims.[19]
[19] Respondent's submissions pars 4, 25 WAB 86, 91.
On ground 1, the respondent repeated well-established sentencing principles relevant to sexual offending against children.[20] The respondent then addressed the objective seriousness of the appellant's offending[21] (which appears readily from the circumstances of the offending) and the comparative cases.[22] The respondent answered the appellant's delay point by contending that the appellant had not led a blameless life since the offending the subject of the appeal.[23] Ground 1 was said to be without merit.
[20] Respondent's submissions pars 7 - 10 WAB 87 - 88.
[21] Respondent's submissions pars 11 - 21 WAB 88 - 90.
[22] Respondent's submissions pars 22 - 35 WAB 90 - 93.
[23] Respondent's submissions pars 36 - 37 WAB 93 - 94.
On ground 2, the respondent referred to UGN v The State of Western Australia[24] and Gulyas v The State of Western Australia.[25] By reference to LFG v The State of Western Australia[26] and The State of Western Australia v FJG[27] the respondent said that the appellant was not a person of 'very advanced age' for the purpose of the second limb of the totality principle. More generally the respondent disputed the evidentiary basis for the appellant's contentions as to lack of available support mechanisms on release and average life expectancies for a person of the appellant's age. The appellant was said to be without any significant health issues likely to impact on life expectancy and to not be of an age or state of health such that the second limb of the totality principle had any application.[28]
[24] UGN v The State of Western Australia [2021] WASCA 10.
[25] Gulyas v The State of Western Australia [2007] WASCA 263.
[26] LFG v The State of Western Australia [2015] WASCA 88; (2015) 48 WAR 178.
[27] The State of Western Australia v FJG [2012] WASCA 206.
[28] Respondent's submissions pars 39 - 48 WAB 94 - 96.
Applicable legal principles
The totality principle
In Roffey v The State of Western Australia, McLure JA (Steytler P & Miller JA agreeing) described the first and second limb of the totality principle in these terms:
The first limb is that the total effective sentence must bear a proper relationship to the overall criminality involved in all the offences, viewed in their entirety and having regard to the circumstances of the case, including those referable to the offender personally.
The second limb is that the court should not impose a 'crushing' sentence. The word crushing in this context connotes the destruction of any reasonable expectation of a useful life after release. An aggregate sentence may be inappropriately long under the first limb even if it cannot be described as crushing.[29] (citations omitted)
[29] Roffey v The State of Western Australia [2007] WASCA 246 [24] - [25].
The practical effect of the totality principle is ordinarily to arrive at an aggregate sentence that is less than that which would be arrived at by simply adding up all the terms appropriate for the individual offences. A rationale for the totality principle is that there is assumed rehabilitation and reduced demand for retribution after the initial sentence has been served.[30]
[30] Roffey v The State of Western Australia [26].
The general principles governing appeals against sentence contending that error should be inferred on the basis that the total effective sentence infringes the totality principle are well established. See for example Gaskell v The State of Western Australia[31] and Kabambi v The State of Western Australia.[32] A matter of primary importance to those principles is that sentencing is a discretionary exercise. An appellate court can only intervene if the appellant demonstrates either an express or implied material error. An appellate court cannot substitute its own opinion for that of the sentencing judge merely because the appellate court would have exercised a sentencing discretion differently.
[31] Gaskell v The State of Western Australia [2018] WASCA 8 [127] (esp. [127(3)]).
[32] Kabambi v The State of Western Australia [2019] WASCA 44 [21].
For present purposes, so far as the contention is one of implied error, it suffices to state that the real question is whether the overall total effective sentence of 14 years' imprisonment is so unreasonable or plainly unjust that the court must conclude that a substantial wrong has occurred.
Sentencing for sexual offending against children
The authorities establish the following propositions in relation to sentencing for sexual offending against children:[33]
1.There is no tariff for sexual offences against children. That is due to the great variation that can occur in the circumstances of the offending and the offenders themselves.
2.The primary sentencing considerations for sexual offending against children are appropriate punishment of the offender and general and personal deterrence - these considerations being informed by the need to protect vulnerable children.
3.Matters personal to an offender will ordinarily carry less weight.
4.In particular, the circumstance that an offender is otherwise of prior good character has little weight in cases of sexual offending against children. The offending is of such a nature that, until revealed, it generally will not impinge on others and will not affect their perception of the offender. Such offending can exist conformably with an otherwise apparent good character.
[33] See eg: VIM v The State of Western Australia [2005] WASCA 233; (2005) 31 WAR 1 [320] - [321]; RDC v The State of Western Australia [2012] WASCA 16 [22] - [24]; The State of Western Australia v FJG [2012] WASCA 206 [56] - [57]; GHK v The State of Western Australia [2014] WASCA 19 [12] - [13], [16]; LFG v The State of Western Australia [395] - [396]; The State of Western Australia v PJW [2015] WASCA 113 [34] - [35], [39], [51]; FWB v The State of Western Australia [2016] WASCA 118 [52] - [53], [57] (referred to with approval in LYN [46]); Mills v The State of Western Australia [No 2] [2017] WASCA 52; (2017) 265 A Crim R 484 [29], [31]; MHE v The State of Western Australia [2019] WASCA 133 [60]; WRT v The State of Western Australia [2020] WASCA 68 [65]; NDY v The State of Western Australia [2020] WASCA 172 [100]; UGN v The State of Western Australia [2021] WASCA 10 [42].
It was observed in 2012 that, in recent years, there had been a firming up of sentences imposed for sexual offences against children - particularly in cases involving intra-familial sexual abuse.[34]
[34] RDC v The State of Western Australia [26]. See also Mills v The State of Western Australia [No 2] [32].
Some cumulation of sentences is to be expected to reflect the fact that an offender's sexual offending against children involves multiple victims.[35] Also, some cumulation of individual sentences is to be expected where there is repetitive and prolonged sexual offending against an individual child. This reflects the increased likelihood of significant and enduring harm that comes with such repetitive and prolonged sexual abuse, as well as to reflect the fact that the offender has not simply given way to impulse on an occasion.[36]
[35] VIM v The State of Western Australia [295]; EXF v The State of Western Australia [2015] WASCA 118 [69], [84].
[36] VIM v The State of Western Australia [294]; WRT v The State of Western Australia [66]; UGN v The State of Western Australia [42].
Consideration and disposition
There is no complaint as to any of the individual sentences. Nor is there any complaint as to the 5 year total effective sentence imposed by Vernon DCJ in relation to IND/666/2018. This is only an appeal against the sentence imposed by Davis DCJ. The appellant's essential contention is that the effect of the sentences imposed by Davis DCJ was to produce an overall total effective sentence of 14 years' imprisonment in relation to the offending as a whole (ie all 25 counts on which the appellant had been convicted) which infringed one or both of the first and second limbs of the totality principle.
Ground 1: Does the total effective sentence of 14 years' imprisonment infringe the first limb of the totality principle?
A ground of appeal that asserts that a sentencing judge has infringed the totality principle involves an allegation of implied error.
The critical question is whether the length of the 14 year total effective sentence is disproportionate to the overall criminality involved in all the offences, viewed in their entirety, having regard to all relevant facts and circumstances (including those referable to the offender personally, all relevant sentencing factors and the total effective sentences imposed in comparable cases), so as to be unreasonable or plainly unjust.
In claiming that a total effective sentence infringes the first limb of the totality principle it is relevant to refer to broadly comparable cases. It must, however, be recognised that the utility of the comparable cases is limited. While providing broad guidance there will often be significant differences in the circumstances of the offending and the offenders. For example, there will often be a different mix of offences, rendering the comparison of limited utility. As was said in Pennetta v The State of Western Australia:
[T]he total effective sentence is not one imposed for a single offence. It is often difficult enough to compare sentences imposed in different cases with different factual circumstances and different personal circumstances where the offences relates only to a single offence. The fact that different offenders may have received different total effective sentences in respect of different groupings of sentences adds a level of complexity that makes comparisons difficult. Nonetheless it is important to ensure that there is broad consistency in sentences.[37]
[37] Pennetta v The State of Western Australia [2013] WASCA 234 [39].
It is particularly the case that there is limited utility in comparing total effective sentences in the context of sexual offending against children. The total effective sentence in another case can only provide very limited guidance as to whether the total effective sentence imposed in the case under appeal infringes the first limb of the totality principle where: (1) there is no established tariff for sexual offences involving children; and (2) the range of sexual offending and sexual offenders are infinitely variable.[38] Moreover, often, given the wide variety of combinations of offending conduct, offenders and victims involved in sexual offences against children, different views may reasonably be taken as to whether the overall criminality involved in a group of offences in one case is greater or lesser than that involved in a group of offences in a different case. That variety makes it difficult to identify direct comparators and complicates any attempt to analyse whether the total effective sentence imposed in a particular case reveals a comparatively more severe or lenient approach than that adopted in a different case.[39]
[38] CAND v The State of Western Australia [48].
[39] JJR v The State of Western Australia [168].
The objective seriousness of the appellant's offending, viewed in its entirety, appears from the earlier discussion as to the circumstances of the offending. Each of the victims was a vulnerable child. In the case of the appellant's daughter, CT, she was a very young child who should have been able to look to her father (the appellant) for guidance, care, support and protection.
It may be accepted that the offences in relation to GN and LW were less serious than the other offences. The offending in relation to GN occurred when the appellant still had the benefit of youth. This is also the offence with the lowest maximum penalty (7 years' imprisonment). The offending in relation to LW attracted a maximum penalty of 10 years' imprisonment for each count. Unlike the other offending it was opportunistic. It involved a touching of LW's penis through his clothes while fully dressed and in that sense was less serious offending than the other offending. There was mitigation in the form of the appellant's pleas of guilty and genuine remorse. But, in the case of both GN and LW, the appellant abused his position of trust and authority for his own sexual gratification. There was also a disparity between the age of GN and the appellant and a marked disparity between the age of LW and the appellant. And, in the case of GN, there was an element of coercion so far as the appellant plied an 11‑year-old boy with alcoholic drinks.
The indecent dealings offences in relation to JP each had a maximum penalty of 10 years' imprisonment. These too were characterised by an abuse of trust and authority as well as a marked disparity as to age. The offending was repeated over a two-year period; it was not out of character or anomalous. The appellant interacted with JP as to the usage of adult pornography for sexual gratification. The appellant masturbated in JP's presence. By its nature the offending was likely to corrupt a young teenage boy who would look up to the appellant as his uncle. There was no significant mitigation. While, in substance, the appellant was otherwise of prior good character, that carried little weight. There was no plea of guilty and no remorse or insight into the offending.
It is convenient, at this stage, to deal with the appellant's argument as to delay insofar as that fed into the appellant's contention that this was a 'positive mitigating factor'. The appellant relied on the passage of time between the offending the subject of IND/667/2018 and his sentencing as demonstrating rehabilitation and a lesser need for personal deterrence. The contention is misconceived. By itself delay is not mitigatory.[40] As a sentencing factor, delay will attract a significant discount only where there has been real progress towards rehabilitation or where other favourable factors have emerged in the time between the offending and the sentencing.[41] That is not this case. The appellant's offending against AB and LW in 2016 and 2017 demonstrated that rehabilitation was yet to take place. The appellant represented an above average risk of reoffending. The necessity for personal deterrence remained a highly relevant sentencing factor.
[40] The State of Western Australia v FJG [54].
[41] Bell v The Queen [2001] WASCA 40 [8].
The offending against AB and CT was the most serious of the appellant's offending.
The offending against AB persisted over close to an 11-month period. The appellant groomed and emotionally manipulated AB. In relation to counts 4 - 8 the appellant coerced AB by supplying him with alcohol. The offending consisted of sexual penetration by fellatio (maximum penalty 20 years), attempted anal penile penetration (maximum penalty 10 years) and six counts of indecent dealings (maximum penalty 10 years for each count). AB was 11 or 12 years old at the time of the various offences. There was a marked disparity in age between AB and the appellant. The appellant abused his position of trust and authority having been left in charge of AB by AB's mother. A significant degree of planning was evident in relation to counts 4 - 8 concerning AB. However, there was some mitigation. The appellant had pleaded guilty and was found to be genuinely remorseful.
There were no significant mitigating circumstances in relation to the offending involving CT. This was serious and persistent sexual offending by a father against his very young prepubescent daughter. The appellant's abuse of his position of trust and authority for his sexual gratification is especially flagrant. The offending involved repeated sexual abuse over four years. While representative in nature the offending for which the appellant was sentenced comprised nine counts of sexual penetration of a child under the age of 13 years (maximum penalty 20 years for each count) and one count of encouraging a child under the age of 13 years to engage in sexual behaviour (maximum penalty 20 years). Some of the offending was particularly perverse and deviant. There was penile vaginal penetration, digital vaginal penetration and sexual penetration by requiring CT to perform fellatio. The offending occurred in CT's home, where she was entitled to feel safe. Some of the offending was accompanied by force. The offending has had a material detrimental effect on CT's physical and mental wellbeing. The psychological consequences of the appellant's offending are likely to affect CT for the rest of her life.
In terms of comparable cases involving appeals against sentence for sexual offending against children, we have considered the cases referred to by the parties and the cases referred to in those decisions. We have also considered more recent decisions such as MHE v The State of Western Australia, NDY v The State of Western Australia and MRW v The State of Western Australia.[42]
[42] MRW v The State of Western Australia [2022] WASCA 98.
It is not necessary to recount the relevant facts and circumstances and the sentencing dispositions of those previous decisions. While we have referred to the cases as being 'comparable' that is a reference to the kind of offending. There is, in every case, some comparable features with the present case. But there are also distinguishing features. Differences emerge as to the degree of physical interference, its duration and frequency, the number of victims and the age of the victims (the victim's age often affecting the maximum penalty for each individual offence). Of particular importance to the various sentencing dispositions is the absence or presence of pleas of guilty and when any such pleas were entered - it being recognised that early pleas of guilty will commonly justify substantial discounts given the public interest in avoiding the risk of further trauma and psychological harm to the victims of sexual offending against children.[43]
[43] LYN v The State of Western Australia [51]; MHE v The State of Western Australia [6], [83], [89].
There is, in any event, a detailed survey of the previous cases in JJR v The State of Western Australia[44] and to a lesser extent in LYN v The State of Western Australia.[45] Also, in MHE v The State of Western Australia Mitchell & Beech JJA noted by way of broad summary the ranges that had been identified in earlier cases[46] and canvassed numerous sentencing dispositions in child sexual offending cases between 2009 and 2019 (focussing separately on cases in which the offender had pleaded guilty and those where the offender was convicted after trial).[47] We adopt what was said in those passages in JJR, LYN and MHE.
[44] JJR v The State of Western Australia [112] - [159].
[45] LYN v The State of Western Australia [42] - [45].
[46] MHE v The State of Western Australia [82].
[47] MHE v The State of Western Australia [85] - [92].
In oral submissions the appellant relied most heavily on LYN v The State of Western Australia. In LYN an overall total effective sentence of 14 years and 3 months' imprisonment was found to infringe the first limb of the totality principle.[48] The offending against the offender's young daughters included eight counts comprising digital and penile vaginal sexual penetration and sexual penetration by cunnilingus and fellatio as well as six counts of indecent dealings. The offender was resentenced on appeal on the basis that an overall total effective sentence of 12 years' imprisonment was commensurate with the total criminality of the offending. However, there were three child victims in LYN rather than five as in the present case. Also, having already served his sentence in respect of the offending against his eldest daughter, the offender pleaded guilty in respect of the offences against his two younger daughters and was afforded a 17% discount (this offending including seven of the eight sexual penetration offences). This court was satisfied that the overall total effective sentence of 14 years and 3 months' imprisonment failed to properly reflect the mitigating effect of the pleas of guilty and the rehabilitative effect of the offender's prior incarceration (the significance of personal deterrence being reduced in any event as the offender had not reoffended since 2005).
[48] In LYN v The State of Western Australiaall the offending occurred before 2005. In 2005 the offender was sentenced after trial to a total effective sentence of 4 years' immediate imprisonment in respect of sexual offending against one of his daughters. The offender was not charged with the further offending against two younger daughters until 2016. In 2017 the offender pleaded guilty to that offending and was sentenced to a further total effective sentence of 10 years and 3 months' imprisonment. Consistently with the common position of the parties this court approached the appeal and resentencing on the basis of the offender's overall total effective sentence for all the offending: [12] - [13].
Whether a total effective sentence bears a proper relationship to the overall criminality involved in all of a person's offending cannot be gauged by comparison with a single case. Viewed in the broad, however, the 14 year overall total effective sentence in the present case is generally consistent with the resentencing in LYN. The 2‑year differential reflects the additional victims in the present case, the pleas of guilty as to the bulk of the more serious offending in LYN (the appellant's pleas of guilty in the present case being limited to the offending against AB and LW and not including the offending against GN, JP and CT) and the acceptance in LYN that the offender's prior incarceration had been of rehabilitative effect.
We will not review all of the remaining sentencing dispositions described in JJR v The State of Western Australia, LYN v The State of Western Australia and MHE v The State of Western Australia. It is true that, as the appellant submitted, there are a number of cases where the offending involved more substantial physical interference than his case but the total effective sentence was less than or similar to the appellant's overall total effective sentence. That, however, fails to take into account the additional victims in the present case (and the cumulacy that thereby results in accordance with principle) and whether or not there were pleas of guilty in the comparable case. But there are also many cases with serious sexual offending against children akin to that committed by the appellant against CT and AB where - taking into account the appellant's further offending against multiple additional child victims - the appellant's overall total effective sentence is, viewed in the broad, generally consistent with the sentencing in those comparable cases. JJR is one such a case. So too are CJF v The State of Western Australia,[49] ARK v The State of Western Australia,[50] KSN v The State of Western Australia[51] and LWD v The State of Western Australia.[52]
[49] CJF v The State of Western Australia [2012] WASCA 69.
[50] ARK v The State of Western Australia [2014] WASCA 45.
[51] KSN v The State of Western Australia [2017] WASCA 156.
[52] LWD v The State of Western Australia [2017] WASCA 174.
There should, however, be specific mention of GHK v The State of Western Australia. GHK has more comparable features to the present case than any of the other cases.
In GHK there were six victims of historic child sexual offences (the offences being committed between about 1966 and 1981 and the appellant being sentenced in 2013). The victims ranged in age from 4 to 13 years at the time of the offending . The offender, who was aged 73 at the time of sentencing, pleaded guilty with late pleas and received a discount of 15%. The 24 counts ranged from indecent dealing (many of which involved masturbation in the presence of a complainant) to multiple offences of sexual penetration including digital vaginal penetration, cunnilingus, fellatio, penile vaginal penetration and attempted penile anal penetration of one of the male complainants. An appeal against sentence was upheld taking into account the offender's pleas of guilty. On the resentencing this court imposed a total effective sentence of 14 years' imprisonment.
While, viewed as a whole, the offending in GHK was objectively more serious than the appellant's offending (there were acts of sexual penetration against more victims) the total effective sentences in GHK and the present case are broadly consistent when the additional pleas of guilty by the offender in GHK are taken into account. Also, in GHK personal deterrence was not an important sentencing factor given the offender's advanced age.
The comparable cases demonstrate that the 14 year overall total effective sentence imposed on the appellant was consistent with a sound exercise of the sentencing discretion. It is inevitable that there will be variations between sentences for similar offending and all the more so between total effective sentences for similar offending. The question is not whether there is mathematical equivalence between the appellant's overall total effective sentence and the comparable cases. The range of sentences customarily imposed is of significance for the purpose of ensuring broad consistency in the sentencing of offenders in broadly comparable cases. The consistency sought is consistency in the application of relevant legal principles. In that respect the comparable cases do not bespeak any misapplication of principle by the sentencing judge once proper regard is had to the multiple child victims the appellant offended against and the circumstance that the convictions in relation to GN, JP and CT were convictions after trial.
We are satisfied that the total effective sentence of 14 years' imprisonment bears a proper relationship to the overall criminality involved in the 25 offences the subject of the sentencing by Vernon DCJ and Davis DCJ, viewed together, after having regard to all relevant facts and circumstances and all relevant sentencing factors, including the total effective sentences imposed in comparable cases.
It was necessary, in our view, in order to properly mark the appellant's overall criminality, to order some accumulation of the sentences concerning CT. CT was subjected to repeated and prolonged sexual offending which has had severe consequences for CT's mental and physical wellbeing. The sentencing judge made an unchallenged finding that the psychological consequences of the appellant's offending were likely to affect CT for the rest of her life. In all the circumstances it was appropriate to order that the 5 year term for the penile vaginal penetration (count 16) and the 2 year term for procuring CT to engage in sexual behaviour (count 11) be served cumulatively. So too it was necessary to provide for accumulation of the sentence concerning GN and some accumulation of the sentences concerning JP. A degree of accumulation is to be expected where there are multiple victims. As to the offending against GN and JP, the sentencing judge reduced the individual sentence for count 1 (as to GN) from 10 months to 6 months and count 5 (as to JP) from 2 years to 18 months in the application of the totality principle. That was an appropriate means to give effect to concerns as to totality on the accumulation of the sentences.
In addition, in order to properly mark the seriousness of the overall offending, Davis DCJ was correct to order that the total effective sentence in relation to the offending the subject of IND/667/2018 should be served cumulatively upon the total effective sentence of 5 years' imprisonment in relation to the offending the subject of IND/666/2018. This was not a case where rehabilitation could be assumed. The appellant was an above average risk of reoffending and personal deterrence remained a significant factor. The objective seriousness of the offending against GN, JP and CT as a whole - and in particular the offending against CT - demanded condign punishment.
In all the circumstances we are satisfied that the overall total effective sentence of 14 years' imprisonment was within the range open on a proper exercise of the sentencing discretion. We are of that opinion having taken into account: (1) the maximum penalties for the 25 offences; (2) the objective circumstances of the offending as a whole (including that there were five victims and each was vulnerable as regards the appellant); (3) the impact of the offending on the victims; (4) the total effective sentences imposed in prior cases with some features comparable to the appellant's offending; (5) the place which the appellant's overall criminal conduct occupies on the scale of seriousness of offences of this kind; (6) the significance of general and personal deterrence and the need for community protection - in particular the need to protect vulnerable children; (7) the appellant's pleas of guilty to the offences concerning AB and LW; and (8) the appellant's personal antecedents and circumstances and all other relevant sentencing factors.
The total effective sentence of 14 years' imprisonment bears a proper relationship to the overall criminality involved in all of the offences, viewed in their entirety, having regard to all relevant facts and circumstances and all relevant sentencing factors. Error should not be implied or inferred from the sentencing outcome in relation to the overall total effective sentence. The first limb of the totality principle was not infringed.
Ground 1 fails.
Ground 2: Does the total effective sentence of 14 years' imprisonment infringe the second limb of the totality principle?
In substance the appellant relied on his age as the basis on which he sought to invoke the second limb of the totality principle.
This court recently considered the second limb of the totality principle in UGN v The State of Western Australia. The court stated:
The second limb [of the totality principle] is that the court should not impose a 'crushing' sentence. The word 'crushing' in this context connotes the destruction of any reasonable expectation of a useful life after release. Advanced age is a relevant consideration in determining whether an aggregate sentence is 'crushing'. However, whether and, if so, to what extent, leniency should be given to an offender by reason of his or her advanced age depends on all the facts and circumstances of the particular case. For example, offences may be so serious that humanitarian considerations relating to advanced age cannot be accommodated.[53]
[53] UGN v The State of Western Australia [39].
More generally the court referred, with approval, to what had been said by Steytler P in Gulyas v The State of Western Australia[54] as to the effect of age on sentencing.[55] It is not necessary to repeat or apply those principles. This is not a case where the appellant is of an advanced age (or in ill health) such that the principles discussed in Gulyas arise for application.
[54] Gulyas v The State of Western Australia [33] - [54].
[55] UGN v The State of Western Australia [63].
In UGN the court stated that it could not be said that the offender in that case - who was 68 years of age at the time of sentencing - was at a very advanced age.[56] There are other cases in which this court has held that an offender aged 68 or 69 at the time of sentencing could not be said to be of a very advanced age.[57] In the present case the appellant was 57 years old at the time he was sentenced by Davis DCJ. He will be 68 years old when the overall total effective sentence expires. While the appellant had some health issues (see [23] above) his conditions are not uncommon for a man of his age. There was no evidence that the appellant's health issues would be likely to deteriorate rapidly during his incarceration. Nor was there anything which might mean there is a likelihood that the appellant will die in gaol or leave gaol in such a state that he would have no reasonable expectation of a useful life after release.
[56] UGN v The State of Western Australia [64].
[57] The State of Western Australia v FJG [69]; LFG v The State of Western Australia [417].
The appellant focussed on his life expectancy at the time of his birth.[58] There was no evidentiary foundation for the appellant's assertion that the average life expectancy for an Australian male born in the 1960s was 70 years. But, in any event, this was not the correct inquiry. The relevant inquiry was the appellant's life expectancy at the time of his sentencing. No evidence was adduced on that subject. There was no basis for the appellant's submission that he was likely to have a lifespan of less than 10 years following his release.
[58] WAB 83.
Separately, the appellant misstated the position in contending that on his release he would have little or no support mechanisms - a prospect he described as 'certainly crushing'. Before Vernon DCJ it was the appellant's contention that he was a person with very strong family support and that his family would need to support him once he was released from custody.[59] Vernon DCJ accepted that the appellant had the support of his family.[60]
[59] ts 46.
[60] ts 67, 68.
We are satisfied that the overall total effective sentence of 14 years' imprisonment did not breach the second limb of the totality principle. The appellant will be aged 68 upon discharge of his 14 year sentence. It cannot reasonably be said that the appellant has been left without any reasonable expectation of useful life after his release from custody.
Ground 2 is without merit. Leave to appeal on ground 2 should be refused.
Conclusion and orders
We would order that:
1.Leave to appeal on ground 2 is refused.
2.The appeal is dismissed.
Appendix
Part A: Convictions and sentences in IND/666/2018 (by Vernon DCJ)
| Description | Code | Max. Penalty | Sentence | |
| 1. | Between 31 December 2016 and 1 April 2017 the appellant indecently dealt with AB, a child under 13, by washing his body. | s 320(4) | 10 years | 15 months |
| 2. | Between 31 August 2016 and 1 August 2017 the appellant indecently dealt with AB, a child under 13, by washing his body. | s 320(4) | 10 years | 15 months |
| 3. | On another date between 31 August 2016 and 1 August 2017 the appellant indecently dealt with AB, a child under 13, by washing his body. | s 320(4) | 10 years | 15 months |
| 4. | On 26 July 2017 the appellant sexually penetrated AB, a child under 13, by engaging in fellatio. | s 320(2) | 20 years | 3 years |
| 5. | At the same time and place as count 4, the appellant indecently dealt with AB, a child under 13, by placing AB's hand on his (ie the appellant's) penis. | s 320(4) | 10 years | 2 years |
| 6. | At the same time and place as count 4, the appellant indecently dealt with AB, a child under 13, by placing his (ie the appellant's) hand on AB's bottom. | s 320(4) | 10 years | 3 months |
| 7. | At the same time and place as count 4, the appellant attempted to sexually penetrate AB, a child under 13, by attempting to penetrate AB's anus with his (ie the appellant's) penis. | s 320(2) | 10 years | 2 years |
| 8. | At the same time and place as count 4, the appellant indecently dealt with AB, a child under 13, by washing his body. | s 320(4) | 10 years | 15 months |
| 9. | Between 31 May 2017 and 31 July 2017 the appellant indecently dealt with LW, a child under 13, by touching LW's penis with his (ie the appellant's) hand. | s 320(4) | 10 years | 9 months |
| 10. | On another date between 31 May 2017 and 31 July 2017 the appellant indecently dealt with LW, a child under 13, by touching LW's penis with his (ie the appellant's) hand. | s 320(4) | 10 years | 9 months |
Part B: Convictions and sentences in IND/667/2018 (by Davis DCJ)
| Description | Code | Max. Penalty | Sentence | |
| 1. | Between 30 April 1982 and 1 July 1982 the appellant indecently dealt with GN, a child under 14, by touching GN's penis with his (ie the appellant's) hand. | s 183[61] | 7 years | 6 months |
| 4. | Between 11 May 1999 and 13 May 2001 the appellant indecently dealt with JP, a child over 13 and under 16, by doing an indecent act in JP's presence, namely masturbating. | s 321(4) | 7 years | 2 years |
| 5. | On another date between 11 May 1999 and 13 May 2001 the appellant indecently dealt with JP, a child over 13 and under 16, by placing JP's hand on his (ie the appellant's) penis. | s 321(4) | 7 years | 1 year 6 months |
| 6. | On another date between 11 May 1999 and 13 May 2001 the appellant indecently dealt with JP, a child over 13 and under 16, by doing an indecent act in JP's presence, namely masturbating. | s 321(4) | 7 years | 2 years |
| 7. | On another date between 11 May 1999 and 13 May 2001 the appellant indecently dealt with JP, a child over 13 and under 16, by doing an indecent act in JP's presence, namely masturbating. | s 321(4) | 7 years | 2 years |
| 8. | Between 30 July 2005 and 1 August 2006 the appellant sexually penetrated CT, a child under 13, by penetrating her vagina with his finger. | s 320(2) | 20 years | 3 years 6 months |
| 9. | Between 30 July 2002 and 1 August 2004 the appellant sexually penetrated CT, a child under 13, by penetrating her vagina with his finger. | s 320(2) | 20 years | 3 years 6 months |
| 10 | Between 30 July 2002 and 1 August 2004 (on the same date as count 9) the appellant sexually penetrated CT, a child under 13, by penetrating her vagina with his finger. | s 320(2) | 20 years | 3 years 6 months |
| 11. | Between 30 July 2002 and 1 August 2004 (on the same date as counts 9 and 10) the appellant procured CT, a child under 13, to engage in sexual behaviour. | s 320(3) | 20 years | 2 years |
| 12. | Between 30 July 2005 and 1 August 2006 the appellant sexually penetrated CT, a child under 13, by introducing his penis into her mouth. | s 320(2) | 20 years | 4 years |
| 13. | Between 30 July 2001 and 1 August 2004 the appellant sexually penetrated CT, a child under 13, by introducing his penis into her mouth. | s 320(2) | 20 years | 4 years 6 months |
| 15. | Between 1 January 2003 and 1 August 2005 the appellant sexually penetrated CT, a child under 13, by penetrating her vagina with his finger. | s 320(2) | 20 years | 3 years 6 months |
| 16. | Between 1 January 2003 and 1 August 2005 (on the same day as count 15) the appellant sexually penetrated CT, a child under 13, by penetrating her vagina with his penis. | s 320(2) | 20 years | 5 years |
| 17. | Between 30 July 2004 and 1 August 2006 the appellant sexually penetrated CT, a child under 13, by introducing his penis into her mouth. | s 320(2) | 20 years | 4 years |
| 18. | On another date between 30 July 2004 and 1 August 2006 the appellant sexually penetrated CT, a child under 13, by penetrating her vagina with a toothbrush. | s 320(2) | 20 years | 2 years |
[61] The relevant provision of the Criminal Code as in force at the time of the offence.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
AT
Associate to the Honourable Justice Vaughan
27 SEPTEMBER 2022
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