PDT v The State of Western Australia

[2012] WASCA 134

PDT -v- THE STATE OF WESTERN AUSTRALIA [2012] WASCA 134

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2012] WASCA 134
Court:	THE COURT OF APPEAL (WA)	Published:	06/07/2012
Case No:	CACR:10/2012	Heard:	20 JUNE 2012
Coram:	BUSS JA MURPHY JA MAZZA JA	Delivered:	20/06/12
No of pages:	8	Judgment Part:	1 of 1
Result:	Appeal allowed
Category:	D
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Parties:	PDT THE STATE OF WESTERN AUSTRALIA
Catchwords:	Criminal law Appeal against sentence Indecent dealing with a lineal relative under the age of 16 years Whether trial judge erred by imposing a manifestly excessive sentence
Legislation:	Criminal Code (WA), s 329(4), s 329(10)(a) Sentencing Act 1995 (WA), s 6(1)
Case References:	GJT v The State of Western Australia [2011] WASCA 263 JD v The State of Western Australia [2008] WASCA 147 McDougall v The State of Western Australia [2009] WASCA 232 Wilson v The State of Western Australia [2010] WASCA 82

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : PDT -v- THE STATE OF WESTERN AUSTRALIA [2012] WASCA 134 CORAM : BUSS JA

MURPHY JA
MAZZA JA

HEARD : 20 JUNE 2012 DELIVERED : 20 JUNE 2012 PUBLISHED : 6 JULY 2012 FILE NO/S : CACR 10 of 2012 BETWEEN : PDT

Appellant

AND

THE STATE OF WESTERN AUSTRALIA
Respondent

ON APPEAL FROM:

Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA

Coram : STAVRIANOU DCJ

File No : IND 1148 of 2011

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Catchwords:

Criminal law - Appeal against sentence - Indecent dealing with a lineal relative under the age of 16 years - Whether trial judge erred by imposing a manifestly excessive sentence

Legislation:

Criminal Code (WA), s 329(4), s 329(10)(a)

Sentencing Act 1995 (WA), s 6(1)

Result:

Appeal allowed

Category: D

Representation:

Counsel:

Appellant : Ms K J Farley
Respondent : Ms S H Linton

Solicitors:

Appellant : Legal Aid (WA)
Respondent : Director of Public Prosecutions (WA)

Case(s) referred to in judgment(s):

GJT v The State of Western Australia [2011] WASCA 263
JD v The State of Western Australia [2008] WASCA 147
McDougall v The State of Western Australia [2009] WASCA 232
Wilson v The State of Western Australia [2010] WASCA 82


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1 BUSS JA: I joined in the orders made by the court on 20 June 2012 for the reasons given by Mazza JA.

2 MURPHY JA: I joined in the orders made by the court on 20 June 2012, for the reasons given by Mazza JA.

3 MAZZA JA: On 20 June 2012, at the conclusion of the hearing of this appeal against sentence, the following orders were made:

1. Appeal allowed.

2. The sentencing decision of the primary judge is set aside.

3. The appellant is resentenced to 12 months' immediate imprisonment.

4. The new sentence is to be taken to have taken effect on 8 December 2011.

5. The appellant is eligible for parole.

4 What follows are my reasons for joining with the other members of the court in making these orders.

Background

5 The appellant was charged with one offence of indecently dealing with a lineal relative under the age of 16 years, contrary to s 329(4), read with s 329(10)(a) of the Criminal Code (WA). The maximum penalty for this offence is 10 years' imprisonment.

6 On 8 December 2011, he entered a fast-track plea of guilty and on the same day the learned sentencing judge sentenced the appellant to 2 years' immediate imprisonment with eligibility for parole.

7 The sole ground of appeal is that this sentence is manifestly excessive.

Facts of the offending

8 The unchallenged facts of the offending are as follows. The offence occurred at approximately 8 pm on 18 June 2011 in a suburb of Perth. The victim is the appellant's natural daughter, who was then aged 2 years. She was standing at the end of her bed, naked from the waist down, having removed her nappy, watching a cartoon being played on a

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computer. While in this position, the appellant knelt behind her, took his penis from his tracksuit pants and rubbed it, in a backwards and forwards motion, between his daughter's upper thighs for a short time. The appellant, in his video record of interview, accepted that his penis probably rubbed 'a little' against her vaginal area: AB 82.

9 As this occurred, the appellant's wife walked into the bedroom and saw what was going on. She called the police. The appellant waited for them to arrive. He was taken to the Child Abuse Squad where he voluntarily participated in a video recorded interview in which he freely admitted, in a remorseful way, what he had done.

The appellant's personal circumstances

10 At the time of his offending, the appellant was 33 years of age. He had no prior convictions and a constant work record. As a child, the appellant had a severely dysfunctional and unsettled lifestyle. He was subjected, on occasions, to domestic violence. He has difficulties with literacy and it has been hypothesised that he suffers from dyslexia.

11 In the period leading up to the offending, the relationship between the appellant and his wife had deteriorated. His wife was unwell and had been for some time. He was depressed. On the day in question, he had been drinking and had taken a pill of an unknown nature which had been given to him by a stranger, which may have disinhibited him.

12 After his arrest, the appellant separated from his wife and the rest of his family. On 2 July 2011, he was admitted into the Bentley Hospital 'in crisis with suicidal ideation' precipitated by his offending. He remained there for three weeks. Subsequently, he sought psychological counselling from Mr Ian Ballantine. Mr Ballantine and a court-appointed psychologist, Ms Jane Samson, both assessed the appellant to be a low risk of reoffending in the future.

13 Ms Samson said that the offending behaviour occurred 'in the context of relationship deterioration which he was unable to cope with and resorted to substance use, leading to disinhibition'. She noted that the appellant appeared willing to seek further professional assistance. Mr Ballantine stated that the appellant was intending to do so with his help.

His Honour's sentencing remarks

14 As no allegation of express error has been made in respect of his Honour's sentencing remarks, it is unnecessary to refer to them in

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detail. His Honour found that the appellant's offending was 'an impulsive act which involved no coercive or forceful behaviour'. He took into account the appellant's severely dysfunctional background and other matters such as the fast-track plea of guilty, his remorse, his lack of prior convictions, his desire to address his offending behaviour and his low risk of reoffending in the future in a similar manner.

15 His Honour, however, noted that the act which constituted the offence was a serious one involving the rubbing of the appellant's penis on or near the complainant's vaginal area. He found that the appellant did so seeking sexual gratification, albeit absent actual penetration: AB 51. He emphasised the abuse of trust that was involved in the offending and the vulnerability of the complainant, who was extremely young. He correctly referred to the need to provide general and specific deterrence.

16 His Honour said that the offending was too serious to allow the imposition of a suspended term of imprisonment despite the mitigating factors: AB 51.

The appellant's submissions

17 Ms Farley, on behalf of the appellant, submitted that the term of 2 years' immediate imprisonment was manifestly excessive in that the appellant should have been sentenced to a suspended term of imprisonment or, alternatively, a lesser term of immediate imprisonment.

18 The appellant's counsel submitted that although the offending was serious, the mitigating factors were such that his Honour should have imposed a suspended term of imprisonment or a lesser term of immediate imprisonment.

The respondent's submissions

19 Ms Linton, on behalf of the respondent, accepted that the sentence imposed upon the appellant was severe, but argued that it was nevertheless proportionate, having regard to all of the circumstances of the case. She submitted that the act which constituted the indecent dealing was serious conduct of its kind. She emphasised the vulnerability of the victim as a result of her extremely young age and that the appellant's conduct was a gross breach of trust.

The victim impact statement

20 The victim's mother provided a victim impact statement in which she said that as a result of the offending the family separated. The

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complainant's behaviour deteriorated once she realised that the appellant was no longer at home. The financial consequences of the separation meant that new rental accommodation had to be found. In turn, that had an impact upon the complainant who was required to adjust to her new surroundings.

Analysis of the ground of appeal

21 An appellate court is not entitled to intervene simply because, had it been sentencing the appellant at first instance, it would have imposed a different sentence. The appellant must establish an express or implied error on the part of the sentencing judge. Here, the appellant relies on implied error. The appellant alleges that the sentence of 2 years' immediate imprisonment is so unjust or unreasonable as to demonstrate that an error has occurred somewhere in his Honour's reasoning process: Wilson v The State of Western Australia [2010] WASCA 82 [2].

22 In determining whether a sentence is manifestly excessive, the sentence must be viewed from the perspective of the maximum sentence prescribed by law for the offence, the standards of sentence customarily observed with respect to the offence, the place which the criminal conduct occupies in the scale of seriousness of offences of that type and the personal circumstances of the offender: McDougall v The State of Western Australia [2009] WASCA 232 [13] (McLure P).

23 As I have already noted, the maximum penalty for the offence committed by the appellant is 10 years' imprisonment.

24 I accept that the offending behaviour, although short in duration, was serious because the complainant at the time was 2 years old and, as a result, was particularly vulnerable. Further, the offence was a gross breach of trust. The act itself involved skin on skin contact and, to some extent, genital on genital contact. The offending led to the breakdown of the family unit, with the adverse effects on the victim described by her mother in the victim impact statement.

25 The appellant admitted his wrongdoing from the outset, was genuinely remorseful and entered a fast-track plea of guilty. The personal circumstances of the appellant were, beyond question, favourable and in combination unusual. They were as follows:

(a) At the time of the offence, the appellant was struggling to cope with his wife's ill health and his own depression.

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(b) While self-induced intoxication cannot be an excuse, it would appear that it disinhibited him to a point where he behaved in an atypical way.

(c) The appellant's severely dysfunctional childhood.

(d) The appellant's good employment history.

(e) The appellant had no prior convictions.

(f) Upon discovery, he immediately admitted his wrongdoing and cooperated fully with the police.

(g) He was hospitalised after the offence with depression and suicidal ideation caused by the feelings of guilt he had for his offending.

(h) The appellant has undertaken counselling and is prepared to do so in the future to address the issues surrounding his offending.

(i) The appellant has been assessed as having a low risk of reoffending.

26 Although matters personal to an offender convicted of this kind of offending carry less weight that does not mean that they carry no weight at all: JD v The State of Western Australia [2008] WASCA 147 [19].

27 There is no tariff for cases involving sexual offences against children. However, acts of indecent dealing by adults with young children, particularly where there is a breach of trust, will ordinarily, as a matter of fact, result in the imposition of a term of immediate imprisonment: GJT v The State of Western Australia [2011] WASCA 263 [5] (McLure P). In JD v The State of Western Australia [18] an analysis was undertaken of cases which suggested that custodial terms for single incidents of indecent dealing at the higher end, that is, involving fondling of genitalia, did not exceed 18 months' imprisonment pre-transitional.

28 I will not repeat what I have said about the seriousness of the offending. In order to reflect the seriousness of the offending, particularly having regard to the very young age of the victim and the need to provide denunciation and deterrence, a term of immediate imprisonment was the only appropriate sentence to impose upon the appellant. However, the appellant's fast-track plea of guilty, his genuine remorse and his personal circumstances, provided powerful mitigation of punishment. While these factors could not justify the imposition of suspended imprisonment, they

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required the imposition of a term of immediate imprisonment towards the lower end of the range of a sound sentencing discretion. As the State conceded in this case, the sentence imposed by his Honour was beyond the customary range. Implied error has been demonstrated. With great respect to his Honour, the sentence was in all of the particular circumstances, manifestly excessive.

29 It now falls to this court to resentence the appellant. In my opinion, a term of 12 months' immediate imprisonment with eligibility for parole properly reflects the sentencing objectives for this type of offending and is commensurate with the seriousness of the offence: s 6(1) of the Sentencing Act 1995 (WA).