Playle v The Queen
[2004] WASCA 86
•30 APRIL 2004
PLAYLE -v- THE QUEEN [2004] WASCA 86
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2004] WASCA 86 | |
| COURT OF CRIMINAL APPEAL | |||
| Case No: | CCA:203/2003 | 6 APRIL 2004 | |
| Coram: | STEYTLER J WHEELER J MILLER J | 30/04/04 | |
| 14 | Judgment Part: | 1 of 1 | |
| Result: | Leave to appeal refused | ||
| B | |||
| PDF Version |
| Parties: | ERNEST JAMES PLAYLE THE QUEEN |
Catchwords: | Criminal law Sentencing Six counts of sexual penetration of a de facto child Nine counts of indecent dealing with a de facto child 15 offences involving conduct on eight separate occasions Offences committed in company with applicant's de facto wife Whether sentence of 10 years' imprisonment excessive |
Legislation: | Nil |
Case References: | "B" v The Queen [2002] WASCA 236 Bensegger v R [1979] WAR 65 Cameron v The Queen (2002) 209 CLR 339 Cameron v The Queen [2002] WASCA 81 Dempsey v The Queen, unreported; CCA SCt of WA; Library No 960059; 9 February 1996 Jarvis v R (1993) 20 WAR 201 Woods v R (1994) 14 WAR 341 Bishop v The Queen [2003] WASCA 79 Boudville v The Queen [2001] WASCA 133 Broome v The Queen [1999] WASCA 202 Carter v The Queen [2003] WASCA 159 Dinsdale v The Queen (2000) 202 CLR 321 Fullgrabe v The Queen [2002] WASCA 58 LSC v The Queen [2003] WASCA 303 Merino v The Queen [2003] WASCA 18 Morley v The Queen [2001] WASCA 49 R v Breuer & Chaney (1986) 32 A Crim R 1 R v Chilvers [2003] WASCA 87 R v Podirsky (1989) 43 A Crim R 404 R v Wong, unreported; CCA SCt of WA; Library No 980218; 2 April 1998 Trescuri v The Queen [1999] WASCA 172 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : COURT OF CRIMINAL APPEAL CITATION : PLAYLE -v- THE QUEEN [2004] WASCA 86 CORAM : STEYTLER J
- WHEELER J
MILLER J
- Applicant
AND
THE QUEEN
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram : VIOL DCJ
File No : IND 665 of 2003
Catchwords:
Criminal law - Sentencing - Six counts of sexual penetration of a de facto child - Nine counts of indecent dealing with a de facto child - 15 offences involving conduct on eight separate occasions - Offences committed in company with
(Page 2)
applicant's de facto wife - Whether sentence of 10 years' imprisonment excessive
Legislation:
Nil
Result:
Leave to appeal refused
Category: B
Representation:
Counsel:
Applicant : Mr M R Gunning
Respondent : Mr D Dempster
Solicitors:
Applicant : Gunning Young
Respondent : State Director of Public Prosecutions
Case(s) referred to in judgment(s):
"B" v The Queen [2002] WASCA 236
Bensegger v R [1979] WAR 65
Cameron v The Queen (2002) 209 CLR 339
Cameron v The Queen [2002] WASCA 81
Dempsey v The Queen, unreported; CCA SCt of WA; Library No 960059; 9 February 1996
Jarvis v R (1993) 20 WAR 201
Woods v R (1994) 14 WAR 341
Case(s) also cited:
Bishop v The Queen [2003] WASCA 79
(Page 3)
Boudville v The Queen [2001] WASCA 133
Broome v The Queen [1999] WASCA 202
Carter v The Queen [2003] WASCA 159
Dinsdale v The Queen (2000) 202 CLR 321
Fullgrabe v The Queen [2002] WASCA 58
LSC v The Queen [2003] WASCA 303
Merino v The Queen [2003] WASCA 18
Morley v The Queen [2001] WASCA 49
R v Breuer & Chaney (1986) 32 A Crim R 1
R v Chilvers [2003] WASCA 87
R v Podirsky (1989) 43 A Crim R 404
R v Wong, unreported; CCA SCt of WA; Library No 980218; 2 April 1998
Trescuri v The Queen [1999] WASCA 172
(Page 4)
1 STEYTLER J: I have had the advantage of reading the judgment of Miller J. I agree with it and with his Honour's conclusion that leave to appeal should be refused.
2 WHEELER J: I have had the advantage of reading in draft the reasons for decision of Miller J. I agree with those reasons and have nothing to add.
3 MILLER J: This is an application for leave to appeal against a sentence of 10 years' imprisonment imposed upon the applicant by Viol DCJ in the District Court at Perth on 28 November 2003, following the applicant's plea of guilty on 1 October 2003 to 15 counts of sexual offences against his step-daughter. They were six counts of sexual penetration of a de facto child, contrary to the provisions of s 329(2) of the Criminal Code (WA) ("the Code") and nine counts of indecent dealing with a de facto child, contrary to s 329(4) of the Code. The maximum penalty for the offences of sexual penetration was 20 years' imprisonment and for indecent dealing, 10 years' imprisonment. There were four counts of penile penetration of the vagina; two counts of penetration of the vagina with the finger; three counts of indecent dealing by engaging in sexual activity in front of the complainant; two counts of indecent dealing by licking the complainant's vagina; one count of indecent dealing by the applicant placing his penis between the complainant's legs; one count of indecent dealing by the applicant attempting to procure the complainant to suck his penis and two counts of indecent dealing by the applicant touching the complainant's breast.
4 The total of 15 offences to which the applicant pleaded guilty involved conduct on eight separate occasions, although there was evidence that there was a general background of a sexual relationship between the applicant and the complainant. This background of sexual conduct was denied by the applicant when he was interviewed by a psychologist in the course of preparation of a report for the Court. However, when counsel for the applicant made submissions in mitigation of penalty, he took no issue with the Crown's contention that there was a general background of sexual conduct between the complainant and the applicant. A most aggravating aspect of the commission of the offences was the fact that during the commission of eight of the offences to which the applicant pleaded guilty, he was in company with his de facto wife, the natural mother of the complainant.
(Page 5)
(Page 6)
5 The sentences imposed upon the applicant were 2 years' imprisonment for each of the offences of indecent dealing; 3 years' imprisonment for each of the offences of digital penetration and 6 years' imprisonment for each of the offences of penile penetration. There was a sentence of 3 years' imprisonment for the offence of engaging in sexual activity in the presence of the complainant. The sentences on counts 2, 4 and 9 on the indictment (one count involving digital penetration and two counts involving penile penetration) were made cumulative on each other to produce a total sentence of 15 years' imprisonment. That sentence was in turn reduced to one of 10 years' imprisonment by reason of the provisions of the Sentencing Legislation Amendment and Repeal Act 2003 (WA) and the Sentence Administration Act 2003 (WA).
Appeal
6 The applicant seeks leave to appeal the sentence imposed by the learned sentencing Judge on three grounds. As particularised in the notice of appeal they are:
"The learned Sentencing Judge erred in that:
(a) the sentence of 10 years imprisonment was manifestly excessive having regard to the Applicant's plea of guilty, promise of co-operation and lack of any prior record.
(b) The learned Sentencing Judge erred in failing to specify any discount for the Applicants plea of guilty
PARTICULARS
(i) The learned Sentencing Judge found that an appropriate sentence was fifteen years imprisonment, to be reduced to ten years imprisonment having regard to the new sentencing laws.
(ii) If the sentence of fifteen years was one that reflected the Applicants' plea of guilty, then the starting point must have been in excess of twenty years imprisonment. Notwithstanding the seriousness of the offences, a starting point of over twenty years was unwarranted.
(c) The learned sentencing Judge erred in not specifying any discount for the Applicants' promise of co-operation with the authorities in relation to his co-accused.
(Page 7)
- PARTICULARS
(i) The co-accused, Debbie Smith, continued to maintain a plea of not guilty. The Applicant, through counsel, wrote to the DPP advising that he would be prepared to give evidence against the co-accused at trial.
(ii) The learned sentencing Judge did not adopt the procedure under s37A of the Sentencing Act and did not specify any discount for the Applicant's promise of co-operation.
(a) If the sentence of fifteen years imprisonment was one that reflected discount both for a plea of guilty and for co-operation, then the starting point must have been somewhere in the region of twenty five years, which would be plainly unjustified."
The facts
7 The facts of the case revealed a series of horrifying sexual offences committed by the applicant upon the daughter of his de facto wife. The complainant had lived with the applicant in a suburb of Perth from about the age of 4 or 5 years. Between June 1999 and June 2000, at a time when the complainant was 13 years of age, she was at home with her brothers and sisters when she observed her mother and the applicant having sexual intercourse together on the hallway floor. They continued to do this in full view of the children, well knowing that they were watching. This conduct constituted count 1 on the indictment.
8 Count 2 on the indictment involved conduct between 1 and 31 January 2000. The complainant was asleep in her bed when she was awoken by her mother, who told her to go into the parental bedroom. When she refused her mother made her go into the bedroom. There the complainant's mother removed the complainant's pants and sat her on the bed and the applicant told her to lie next to him whilst the mother lay on the other side of the bed. The applicant inserted his finger into the complainant's vagina where he left it for a short time. He then (count 3) asked the complainant to spread her legs apart and when she did so he licked her vagina. At this time the complainant's mother was still lying on the bed, although it is said that she was facing away. After this the applicant got between the complainant's legs and pushed his penis into her vagina and commenced sexual intercourse with her. He continued for some minutes until her screams for help were heard by her younger sister
(Page 8)
- who entered the room and told the applicant to stop. The complainant then ran from the room.
9 Count 5 on the indictment related to a period between June 2000 and June 2001. By then the complainant was 14 years of age. She was at home with the family and her grandmother was also present. The complainant's mother left the kitchen where the family was seated, went to the bedroom and returned with a sexual aid (a vibrator) which the applicant then inserted into the anus of the complainant's mother whilst she was beneath the table. This was done in full view of the complainant.
10 Count 9 involved an offence which occurred between June 2001 and October 2001. The complainant was by then 15 years of age. She was asleep in the lounge when she awoke to find the applicant pulling down her pants. He placed his penis inside her vagina and had sexual intercourse with her for a short period. The complainant's mother was present, urging him on. The applicant then (count 10) removed his penis from the complainant's vagina and rubbed it up and down her inside leg.
11 Count 12 on the indictment involved an offence which occurred between June and December 2001 when the complainant was 15 years of age. She was asleep in her bed when awoken by her mother and told to come into the parental bedroom. She protested but went and there found the applicant on the bed holding his erect penis, which the complainant's mother told her to suck. She refused but was forced by her mother to do so for a short period.
12 Count 13 on the indictment relates to conduct between June and December 2001 when the complainant was 15 years of age. The applicant took her to a location where he was training horses and in the stables he asked her to lie on the floor and when she did so he pulled down her pants and placed his penis inside her vagina. He had intercourse with her for a period before ejaculating.
13 Count 14 on the indictment again involved conduct between June and December 2001. The complainant was 15 years of age and was asleep in bed when she awoke to find the applicant touching her breasts. He then (count 15) pushed her onto her back, removed her pants and asked her to open her legs, which she did. He licked her vagina.
14 Count 16 again involved conduct between June and December 2001. On a particular evening when the complainant was 15 years of age and about to go to sleep, the applicant entered her room. He sat next to her on the bed and put his finger inside her vagina. He then (count 17) pulled
(Page 9)
- down her pants and penetrated her with his penis. He continued to do so for a short period of time. He then (count 18) removed his penis and lay on the bed next to the complainant masturbating. He then (count 19) touched her breasts before ejaculating on the bed and leaving the room.
15 After stating these facts the prosecutor told the learned sentencing Judge that they were a sample of the continuous course of conduct by the offender against the complainant.
16 Counsel for the applicant admitted the facts and stated that the course of conduct (thus accepting that the conduct was representative of a continuous course of conduct) was instigated by the complainant's mother. This, it was said, was not put forward as a significant mitigatory factor but as part of the background.
17 Counsel for the applicant was unable to give any explanation for the commission of the offences, save that sexual abuse of the complainant's mother as a child may have an influence in what occurred. There were few mitigating factors put forward on behalf of the applicant, save that he had entered an early plea of guilty to the offences and he had undertaken to cooperate with the authorities by giving evidence against the complainant's mother, who was charged with a number of the offences faced by the applicant.
18 The question of the plea of guilty and when it was entered, was the subject of submissions to the learned sentencing Judge. Counsel for the applicant conceded that the plea of guilty was not a fast-track plea but was one which followed negotiations between counsel for the applicant and the Crown, leading to pleas of guilty to those counts which ultimately constituted the first 19 counts on the indictment. The cooperation was noted by the Crown prosector, who specifically requested counsel for the applicant to indicate whether or not it was the case that cooperation would continue. Counsel for the applicant did not suggest that it would not continue. It was thus "noted and confirmed" by the prosecutor.
Sentence
19 The learned sentencing Judge reviewed the facts of the case, pointing out that the applicant had pleaded guilty to a number of very serious charges of a sexual nature involving his step-daughter who, at the relevant time, was between 13 and 15 years of age. His Honour described the acts as constituting a series of acts of perversion and cruelty in the physical and mental sense. He considered that the evidence established that the applicant's conduct had had an extremely detrimental psychological and
(Page 10)
- psychiatric effect on the complainant. He mentioned the fact that the complainant had displayed suicidal tendencies and engaged in self-harm. His Honour considered she would have long-term effects from the applicant's conduct and described her victim impact statement as "harrowing reading".
20 The learned sentencing Judge considered that such mitigating factors as had been suggested on behalf of the applicant did not amount to much and were to be viewed against the strong need for punishment and deterrence. His Honour considered the fact that the complainant's mother was involved and was the suggested instigator of some of the conduct was a "weak explanation".
21 The learned sentencing Judge turned to the plea of guilty. He pointed out that it was not the earliest opportunity. His Honour then dealt with cooperation. He pointed out that cooperation with the DPP had been offered in relation to the prosecution of the co-accused.
22 His Honour then indicated that a very lengthy gaol term to be served immediately was indicated. That term was to be a total of 15 years' imprisonment in accordance with the "old law". The sentence was structured so as to take into account the totality principle, leading to the imposition of certain cumulative and certain concurrent terms, the details of which I have set out.
23 From the sentence of 15 years' imprisonment, his Honour deducted one-third to take account of the new legislation, thus leaving an ultimate sentence of 10 years' imprisonment with an order for eligibility for parole.
Grounds of appeal
Ground (b) - Failure to specify any discount for plea of guilty
24 This ground of appeal contends that if the sentence of 15 years' imprisonment under the old law reflected the applicant's plea of guilty, the starting point for the sentence must have been in excess of 20 years, a sentence which was unwarranted.
25 The learned sentencing Judge did not specify any "starting point" for the sentence imposed, nor was he obliged to do so. The question is whether the individual sentences which were imposed upon the applicant and the totality of the sentences ultimately imposed were excessive.
26 When one looks at the structure of the sentences, the higher sentences were 6 years' imprisonment imposed for the offences of penile
(Page 11)
- penetration. In each case the sentence was 6 years' imprisonment and there were four of those counts.
27 The transcript of the learned sentencing Judge's sentencing comments reveals that his Honour actually confused the numbers of the counts in relation to the sentences imposed. For example, his Honour nominated count 3 twice, where it should have been count 2 and then count 3, and nominated count 5 where it should have been count 4 and then came back to count 5. Despite this confusion, it is clear that the sentences of 2 years' imprisonment were imposed on each of counts 1, 3, 10, 12, 14, 15, 18 and 19 (indecent dealing), 3 years on counts 2 and 16 (digital penetration) and 6 years on counts 4, 9, 13 and 17 (penile penetration). Count 5, which stood apart to some extent, brought a sentence of 3 years.
28 In my view, all sentences, but particularly the sentences of 6 years' imprisonment, clearly reflected an allowance for the applicant's plea of guilty and his offered cooperation.
29 I have already mentioned that the pleas of guilty came after negotiations between defence counsel and the prosecution. This led to an acceptance by the prosecution of the pleas of guilty entered by the applicant on the first 19 counts in full satisfaction of the indictment, which contained 22 counts. The pleas of guilty were entered as soon as the negotiations between the prosecution and defence had been resolved and it could fairly be said that the pleas indicated a degree of remorse, an acceptance of responsibility and a willingness to facilitate the course of justice: Cameron v The Queen (2002) 209 CLR 339 per Gaudron, Gummow and Callinan JJ at 343.
30 Just what specific allowance was made for the pleas of guilty it is not possible in this case to say. It does not at all follow that the "starting point" for the sentence must have been 20 years as suggested by counsel for the applicant. Counsel for the applicant was under the mistaken impression that the plea of guilty must automatically have attracted a discount of the order of 30 per cent, but it has been pointed out that not even every fast-track plea will attract a discount of 30 per cent: Cameron v The Queen [2002] WASCA 81 per Miller J at [19].
31 In my view the question is whether the ultimate sentence properly reflected the degree of criminality of the applicant's conduct, having regard to the pleas of guilty and to the cooperation which was offered. In
(Page 12)
- my view, an appropriate allowance was made for the pleas of guilty and to this extent I am unable to accede to ground (b).
Ground (c) - Failure to specify a discount for the promise of cooperation
33 The cooperation offered was to give evidence against the co-offender, should that be necessary. As events have transpired, the co-offender pleaded guilty and it is no longer necessary for the applicant to give such evidence. Indeed, it would appear from a copy of a letter written by the applicant's solicitors to the learned sentencing Judge on 1 October 2003, that even at that date the DPP had advised that the applicant would no longer be required to give evidence. This is puzzling, because on the same day when the learned sentencing Judge was dealing with submissions in relation to sentence, the Crown prosecutor stated that the offer to cooperate was "noted and confirmed".
34 The extent to which the applicant's offer of cooperation assisted or was instrumental in the co-accused pleading guilty is unknown. Whether the case against the co-accused would have been sufficient without the applicant's cooperation is also another factor. Certainly the complainant and her siblings were in a position to give evidence against the co-accused, but presumably it would have been open to the co-accused to have pleaded not guilty and contended that whilst she was present she was not a willing party to what occurred. In that sense, the applicant's evidence may have been relevant and important.
35 However, the question is whether the combination of the applicant's plea of guilty and offer to cooperate with the authorities was sufficiently recognised in the ultimate sentence which was imposed. In this sense it is necessary to consider the totality of the applicant's conduct and after taking into account his plea of guilty and offer to cooperate, determine whether the aggregate sentence fairly and justly reflected the total criminality of the applicant's conduct: Jarvis v R (1993) 20 WAR 201 per
(Page 13)
- Ipp J at 207. Consideration of this question necessarily involves ground (a) of the grounds of appeal.
36 The starting point in considering the ultimate sentence imposed upon the applicant is Woods v R (1994) 14 WAR 341. Although there is undoubtedly no tariff applicable for sentencing in sexual offences ("B" v The Queen [2002] WASCA 236 at [31]), the fact remains that cases of intrafamily sexual assault or abuse, although different from case to case, do often attract heavy sentences. In Woods v R (supra), Anderson J (at 345 - 346) said:
"Multiple prolonged aggravated sexual assault by an adult upon a young child within the family environment involving the taking advantage of a position of trust is, of course, very serious and the law demands the protection of young children from it. The dominant sentencing considerations are punishment and general and personal deterrence: see R v Wozencroft (unreported, Court of Criminal Appeal, WA, Library No 6606, 25 February 1987)
…
The policy is reflected in the maximum penalty that might have been imposed on each of these counts which is six years for each of the aggravated indecent assaults and 20 years for aggravated sexual penetration. In the case of a single act of aggravated sexual assault by penial penetration, where the circumstance of aggravation is that the complainant is under the age of 16 years, it is not unusual for the courts to impose sentences of seven years or thereabouts and a sentence of six years is quite common. Where there is a series of offences, the criminality is regarded as being much higher. See the discussion in R v Podirsky (1989) 43 A Crim R 404 at 411."
37 His Honour (at 354) summed up the situation in cases of intrafamily sexual assault as follows:
"Cases of intra family sexual assaults of young children that have attracted heavy sentences, that is, sentences of eight years or more in total, often, but not always, are cases where more than one child has been victimised or where there has been multiple offending over an extended period and the offending has included sexual penetration in one form or another, or where some degree of violence, cruelty or aggression in one
(Page 14)
- form or another, or where some degree of violence, cruelty or aggression or threats have been employed. In some cases, such as the Podirsky cases, all of those features are involved and these will generally attract very heavy sentences. In other cases not all of the features are present."
38 In the 10 years since Woods v R was decided, sentences in cases of intrafamilial sexual assault or abuse have generally been firmed up. Nevertheless, what Anderson J said in Woods v R remains entirely applicable to a case such as the present. Further, consideration of the principles enunciated by Murray J in Dempsey v The Queen, unreported; CCA SCt of WA; Library No 960059; 9 February 1996 (at page 6 - 7), are particularly applicable to a case such as the present. Without quoting the well-known passage from the judgment of his Honour, it is sufficient to say that this case reveals from his Honour's list of 12 factors that the following were of particular relevance: the nature of the conduct in question, the degree of perversion or deviance; the relative ages of the offender and the victim; the fact that the offender was in a position of trust in relation to the victim, thus better enabling the commission of the offence; the presence of coercive behaviour; the corruption of the complainant caused by the commission of the offence; the repetition of the offence; the length of time over which the offences occurred (two years); the impact of the commission of the offence upon the child and the prevalence of such offences in the community. From Murray J's list, factors which told in favour of the applicant included the fact that there was a degree of remorse present and there was no prior relevant criminal history.
39 A psychiatric report prepared for the Court revealed that the applicant may have suffered from some cognitive impairment as a result of alcohol dependence at any early age. This in turn was thought possible to have affected his judgement and ability to cope with complex issues. Psychological testing confirmed the presence of this cognitive disorder, but it was of minor importance in consideration of the applicant's conduct. The applicant understood what he was doing to the complainant, although he contended that his partner had urged him on to do it.
40 When one considers the nature and conduct of the offences committed by the applicant, it is, in my view, correct (as the respondent submitted) to say that the offences committed by him are at the top end of the scale of seriousness for sexual offending. The fact that the complainant, between the ages of 13 and 15 years, was as an effective step-daughter of the applicant, and was sexually abused in a depraved way that involved the presence of the complainant's own mother during the commission of a number of the offences, puts the conduct in the worst category of offences. That is not to say it is the worst possible offence of its kind that can be imagined, because, as Burt CJ observed in Bensegger v R [1979] WAR 65 at 68, "the addition of further non-existing but aggravating circumstances would never be beyond the reach of imagination". Nevertheless, this is, in my view, one of the worst examples of intrafamilial sexual abuse that could come before the Court. The fact that a number of counts involved penile penetration of such a young girl is a highly aggravating factor and such that leaving aside any other aspect of the case, a very substantial sentence of imprisonment would necessarily be imposed to accord with the principles enunciated by Anderson J in Woods v R.
41 A sentence of 15 years' imprisonment under the old law properly reflected, in my view, the seriousness of the offences, the various factors enumerated by Murray J in Dempsey v The Queen, and the combination of plea of guilty and willingness to cooperate. Had the learned sentencing Judge properly complied with the provisions of s 8(5) of the Sentencing Act, his Honour should, in my view, have indicated that the sentence of 15 years' imprisonment contained within it a discount of 3 years' imprisonment for the offer to cooperate. That is, had the applicant failed to assist authorities as promised, he would, under s 37(a) of the Sentencing Act, be liable to be recalled for sentence and to have had a further 3 years' imprisonment added to the term imposed by the learned sentencing Judge. The discount of 3 years should, in my view, have been achieved by discounting each of counts 4, 9, 13 and 17 (the counts of penile penetration) by 18 months. In the event that the sentence had to be increased, each of those counts would then have carried a sentence of 7 ½ years, to be served cumulatively in relation to counts 4 and 9, but otherwise concurrently.
42 As it happened, the plea of guilty of the co-accused meant that the applicant was never called upon to testify and although the learned sentencing Judge erred in failing to nominate the period by which the sentence had been discounted by reason of the offer to cooperate, no injustice has been occasioned.
43 I can see no substance in any of the grounds of appeal and I would refuse leave to appeal.
6
16
1