Pool v The State of Western Australia
[2013] WASCA 274
•2 DECEMBER 2013
POOL -v- THE STATE OF WESTERN AUSTRALIA [2013] WASCA 274
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2013] WASCA 274 | |
| THE COURT OF APPEAL (WA) | |||
| Case No: | CACR:4/2013 | 11 OCTOBER 2013 | |
| Coram: | McLURE P BUSS JA MAZZA JA | 2/12/13 | |
| 19 | Judgment Part: | 1 of 1 | |
| Result: | Appeal dismissed | ||
| D | |||
| PDF Version |
| Parties: | JASON BRADLEY POOL THE STATE OF WESTERN AUSTRALIA |
Catchwords: | Criminal law Appeal against sentence Appellant convicted of sex offences (13 counts), burglary offences (2 counts) and a deprivation of liberty offence Five victims Some victims children and some victims adults Lengthy period of offending High risk of future sexual violence Pleas of guilty Total effective sentence of 11 years 9 months' imprisonment with parole eligibility -Totality principle |
Legislation: | Criminal Code (WA), s 320, s 321, s 323, s 325, s 326, s 333, s 401, s 552 |
Case References: | Ackley v The State of Western Australia [2013] WASCA 199 Clarke v The State of Western Australia [2013] WASCA 67 Cooper v The State of Western Australia [2009] WASCA 37 Ferry v The Queen [2003] WASCA 207 GJT v The State of Western Australia [2011] WASCA 263; (2011) 214 A Crim R 272 Hine v The State of Western Australia [2010] WASCA 216 Hodder v The State of Western Australia [2005] WASCA 257 JD v The State of Western Australia [2008] WASCA 147 KJW v The State of Western Australia [2012] WASCA 162 M v The State of Western Australia [2010] WASCA 77 Murphy v The State of Western Australia [2013] WASCA 178 Narkle v Hamilton [2008] WASCA 31 P v The State of Western Australia [2007] WASCA 220; (2007) 177 A Crim R 69 Prempeh v The State of Western Australia [2013] WASCA 150 RFS v The State of Western Australia [2012] WASCA 58 Rigby v The State of Western Australia [2005] WASCA 134 RNN v The State of Western Australia [2010] WASCA 26 The State of Western Australia v Cheeseman [2011] WASCA 15 The State of Western Australia v Tik [2009] WASCA 122 Thorn v The State of Western Australia [2008] WASCA 36 Ugle v The State of Western Australia [2012] WASCA 104; (2012) 223 A Crim R 115 Warburton v The State of Western Australia [2009] WASCA 113; (2009) 196 A Crim R 361 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : POOL -v- THE STATE OF WESTERN AUSTRALIA [2013] WASCA 274 CORAM : McLURE P
- BUSS JA
MAZZA JA
- Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram : GOETZE DCJ
File No : IND BUN 66 of 2012
Catchwords:
Criminal law - Appeal against sentence - Appellant convicted of sex offences (13 counts), burglary offences (2 counts) and a deprivation of liberty offence - Five victims - Some victims children and some victims adults - Lengthy period of offending - High risk of future sexual violence - Pleas of guilty - Total effective sentence of 11 years 9 months' imprisonment with parole eligibility -Totality principle
Legislation:
Criminal Code (WA), s 320, s 321, s 323, s 325, s 326, s 333, s 401, s 552
Result:
Appeal dismissed
Category: D
Representation:
Counsel:
Appellant : Mr J A Davies
Respondent : Ms S H Linton
Solicitors:
Appellant : Lumlan & Associates
Respondent : Director of Public Prosecutions (WA)
Case(s) referred to in judgment(s):
Ackley v The State of Western Australia [2013] WASCA 199
Clarke v The State of Western Australia [2013] WASCA 67
Cooper v The State of Western Australia [2009] WASCA 37
Ferry v The Queen [2003] WASCA 207
GJT v The State of Western Australia [2011] WASCA 263; (2011) 214 A Crim R 272
Hine v The State of Western Australia [2010] WASCA 216
Hodder v The State of Western Australia [2005] WASCA 257
JD v The State of Western Australia [2008] WASCA 147
KJW v The State of Western Australia [2012] WASCA 162
M v The State of Western Australia [2010] WASCA 77
Murphy v The State of Western Australia [2013] WASCA 178
Narkle v Hamilton [2008] WASCA 31
P v The State of Western Australia [2007] WASCA 220; (2007) 177 A Crim R 69
Prempeh v The State of Western Australia [2013] WASCA 150
RFS v The State of Western Australia [2012] WASCA 58
Rigby v The State of Western Australia [2005] WASCA 134
RNN v The State of Western Australia [2010] WASCA 26
The State of Western Australia v Cheeseman [2011] WASCA 15
The State of Western Australia v Tik [2009] WASCA 122
Thorn v The State of Western Australia [2008] WASCA 36
Ugle v The State of Western Australia [2012] WASCA 104; (2012) 223 A Crim R 115
Warburton v The State of Western Australia [2009] WASCA 113; (2009) 196 A Crim R 361
1 McLURE P: I have had the advantage of reading the reasons for judgment of Buss JA, with whom Mazza JA agrees. I have come to the view that the total sentence does infringe the first limb of the totality principle. I would allow the appeal, set aside the total sentence of 11 years 9 months and in lieu thereof impose a total sentence of 9 years' imprisonment. As I am in dissent, I can briefly explain my reasons, relying on the factual background detailed by Buss JA.
2 This case presents an unusual sentencing exercise. Unusual because, having regard to the very broad sweep of sexual offending that regularly comes before this court, the sexual aspects of the appellant's offending vary from conduct at the low end of the range of seriousness to conduct that, whilst more serious, involves no penile penetration of any complainant. The seriousness of the offending as a whole stems from its predatory, compulsive and unusual nature, which is particularly evident in the later offending. However, that conduct needs to be seen against the backdrop of the findings that the appellant suffered significant depression during the period of the offending and was dependent on and addicted to illicit drugs. His heavy drug use stemmed from around the time of the traumatic birth of his second child who suffers from cerebral palsy.
3 The experts assessed the appellant as being at a high risk of future sexual offending, having regard to, among other things, his existing mental health and drug dependence problems. However, there is no suggestion that those problems are unlikely to be responsive to remedial treatment and programmes.
4 The appellant pleaded guilty to the offences, albeit not at the first reasonable opportunity. He had a prior record of convictions of relatively minor offences none of which had attracted a penalty of imprisonment.
5 Having regard to all sentencing considerations, it is clear that the appellant's offending as a whole requires a lengthy term of imprisonment. However, in my assessment, a total sentence of 11 years 9 months is more than is fairly necessary to achieve all of the recognised sentencing objectives including punishment, retribution and deterrence. All the relevant sentencing objectives could be achieved in this case by a sentence of 9 years' immediate imprisonment with eligibility for parole.
6 BUSS JA: The appellant appeals against sentence.
7 The appellant was charged on indictment with 19 counts. On 29 August 2012, after negotiations with the State, he entered pleas of guilty to 16 counts and the State discontinued three counts.
8 The 16 counts to which the appellant pleaded guilty concerned five victims. Thirteen of the counts were sex offences. Two were burglary offences and one was a deprivation of liberty offence, but they were connected to some of the sex offences.
9 On 13 November 2012, Goetze DCJ imposed a total effective sentence of 11 years 9 months' imprisonment. A parole eligibility order was made. The sentence was backdated to 31 January 2012, when the appellant was taken into custody for the offences.
10 Details of the 16 counts, the relevant provisions of the Criminal Code (WA) (the Code), the maximum penalties, the individual sentences of imprisonment and the orders for accumulation and concurrency are set out in the schedule to these reasons.
The facts and circumstances of the offending
11 The facts and circumstances of the offending were, in summary, as follows.
Count 2 (victim CLT - 7 years)
12 The appellant and his wife were friends of the victim's mother and regularly babysat the victim. One night between 17 February 2005 and 16 February 2006, when the victim was 7 years old, she stayed at the appellant's home. The appellant, his wife and the victim were sitting on a mattress in the lounge room playing a videogame. At some stage, the appellant's wife fell asleep. The appellant and the victim continued to play the videogame. The appellant leaned across the victim, placed his hand down her top and rubbed her breasts with his hand.
13 The appellant removed his hand from the victim's top and placed his hand down the front of her shorts. He rubbed the victim's vagina on the outside of her underwear. The victim tried to pull away, but the appellant pulled her towards him and gestured to her to be quiet by placing his finger to her lips. He removed his hand from the victim's shorts and a short time later his wife awoke. The appellant and his wife then went to sleep in the master bedroom, leaving the victim to sleep on the mattress in the lounge room.
Count 5 (victim TJC - 13 years)
14 The victim was aged 13 when the offences were committed. She was a neighbour of the appellant and his family and was often at his home to play with his children.
15 Between October and December 2007, the victim and others stayed the night at the appellant's home. At about 9.00 pm, the victim went to the bathroom to have a shower. Shortly after, the appellant entered the rear yard to hang clothing on a washing line. He positioned his mobile telephone in a gap between the outside of the bathroom window and the wall in an attempt to record the victim in the shower.
16 The victim undressed and started to shower before noticing the appellant's telephone. She yelled out and covered herself with the shower curtain. The appellant then removed the telephone from the window ledge. The victim finished her shower before getting dressed and entering the children's bedroom. She told the appellant's wife what had occurred.
Counts 6 to 10 (victim TJC - 13 years)
17 Counts 6 to 10 deal with an episode between 24 and 25 August 2007 when the victim slept the night on a mattress in the lounge room of the appellant's home.
18 During the night, the appellant approached the victim and, while she slept, pulled down her pyjama top and bra and touched her breast for a few seconds (count 6).
19 While the victim continued to sleep, the appellant masturbated with his penis close to the victim's face. This produced some ejaculate fluid which he wiped on the victim's lips (count 7). While the victim continued to sleep, the appellant held his erect penis against her lips for a few seconds (count 8).
20 The appellant pulled down the victim's pyjama top and bra again and touched her breast for about 10 seconds (count 9).
21 The appellant used a video camera to record counts 6 to 9 (count 10).
Counts 11 to 13 (victim MJR - 17 years)
22 Between 4.15 am and 4.20 am on 20 November 2010, the 17-year-old victim was at her boyfriend's residence. She lay on a bed fully clothed. Earlier that night, the victim and her boyfriend had visited his father's house where she consumed some alcohol. She was slightly intoxicated. During the night the appellant entered the residence through an unlocked carport/kitchen door (count 11).
23 Once inside, the appellant took a pair of scissors from the kitchen and cut the victim's outer clothing as she slept, exposing various parts of her body (count 12). After cutting her clothing the appellant rubbed her exposed vagina with his hand for about five seconds (count 13).
24 The victim awoke after hearing a loud bang. The appellant ran from the house. He was chased by the victim's boyfriend, who was unable to catch him. A forensic examination was conducted and cellular material recovered from the scissors matched the appellant's DNA profile.
25 Some months after the incident the victim noticed some videos on her mobile telephone. She gave the telephone to the police. The videos had been taken by the appellant during the burglary and they included a depiction of his hand rubbing the victim's vagina, being the conduct the subject of count 13. The victim and the appellant were unknown to each other.
Count 14 (victim TFA - 14 years)
26 The victim was aged 14 at the time of the offence and unknown to the appellant.
27 Between 22 and 24 November 2010, at about midnight, the appellant went to the victim's house and entered the grounds. He used a video camera to film the victim through her bedroom window, without her knowledge, for about 14 minutes (count 14). During that time the victim changed from her school uniform into her night clothes. She was filmed while in her underwear.
28 The victim noticed that a person (the appellant) was looking at her through the window. He left the area on foot. The victim's mother called the police.
29 On 31 January 2012, the appellant was arrested and three video cassettes were found hidden in the bodywork of his motor vehicle. Police examined the video cassettes, found the footage of the victim and were able to identify her.
Counts 15 to 19 (victim MT)
30 The victim was a 37-year-old woman who lived with her partner. At the time of the incident the partner was away. The victim and the appellant were unknown to each other.
31 Between 3.00 am and 4.00 am on 27 September 2011, the appellant entered the victim's residence through an unsecured rear sliding door (count 15). While inside, the appellant searched the garage and found a pair of the victim's motorcycle gloves. The appellant put the gloves on and entered a bedroom where the victim was sleeping. Inside the bedroom, the appellant removed the cord of the victim's dressing gown and picked up her cardigan and underwear, all of which were on the floor, before moving toward the bed. He knelt beside the victim as she slept.
32 The appellant placed his hand over the victim's mouth. This caused her to wake up and offer some resistance. The appellant wrapped his hands around the victim's throat. He said, 'Okay, just relax'. This caused the victim to stop resisting. The appellant loosened his grip. He then used the dressing gown cord to tie the victim's hands together and to the top of the bed, as he positioned himself on top of her (count 16).
33 The appellant removed the doona from the victim, exposing her naked body, before using the cardigan to tie her left leg to the base of the bed and placing her underwear over her face and head. The appellant positioned himself between the victim's legs as he rubbed her breasts, stomach and body for about 30 seconds (count 17).
34 The appellant placed his hand between the victim's legs and rubbed the outside of her vagina. The victim pleaded with him to stop. The appellant placed one of his fingers inside the victim's vagina and moved it in and out before inserting a second finger and moving both fingers in and out (count 18). He continued this motion for a couple of minutes. His breathing became heavy and he made moaning noises. As the appellant continued moving his fingers in and out of the victim's vagina, he used his mobile telephone with his other hand to record and take photographs of the victim. The appellant attempted to use the victim's mobile telephone to take more photographs, but was thwarted by a PIN lock.
35 The appellant opened one of the bedside drawers and removed a vibrator. He used it to rub the outside of the victim's vagina. The appellant turned on the vibrator and continued to rub it on the outside of her vagina. He then inserted the vibrator inside her vagina and rubbed her vagina with it for a short period. The appellant removed the vibrator and rubbed it on the outside of her vagina before inserting it inside her vagina again. He rubbed her vagina with it for about three minutes. The appellant then removed the vibrator (count 19).
36 The appellant took the victim's underwear from her face and began to leave the room. He told her not to call anyone. He left the victim's house with the vibrator and the gloves. The appellant's DNA was found on the dressing gown cord he used to tie the victim's hands.
The sentencing judge's sentencing remarks and the appellant's personal circumstances and antecedents
37 The sentencing judge recited the facts and circumstances of the offending.
38 The appellant was born on 18 May 1970. When the offending occurred he was aged between 34 and 41.
39 The appellant has been married since 2005. His wife suffers from type 1 diabetes. They have two sons, one born in 2004 and the other in 2006. The younger son suffers from mild cerebral palsy and frequently has seizures.
40 The appellant ceased his schooling at age 17. He has had little difficulty in obtaining employment in a variety of occupations. He worked as a tree lopper for six months before his arrest for the offences in question.
41 In his early 30s, the appellant commenced using cannabis frequently and methylamphetamines occasionally. Later, his use of cannabis ceased but his use of methylamphetamines increased.
42 The information before his Honour included a report from Dr SD Febbo, a consultant psychiatrist, a report from Mr Steve Jobson, a psychologist, and a pre-sentence report. The reports indicate the appellant committed the offences in the context of marked amphetamine abuse and considerable psychosocial instability.
43 Dr Febbo expressed the following views:
(a) Although aspects of the appellant's account of the offences suggested 'a degree of minimisation', he expressed some regret and remorse and an awareness of the harm he had caused to the victims.
(b) The dominant aspect of the appellant's presentation, from a psychiatric perspective, was his marked abuse of and dependence on illicit substances.
(c) The appellant has suffered from significant depression at various times, including while he was offending, and he has used illicit substances to 'self-medicate'.
(d) The appellant's sexual offending suggests the presence of a paraphilia. The relatively diverse nature of this offending indicates a paraphilia not otherwise specified according to the DSM-IV-R. Dr Febbo explained:
In this condition there are recurrent, intense sexually arousing fantasies, sexual urges, or behaviours that can involve non-consenting persons and this can cause clinically significant stress or impairment in social, occupational or other important areas of functioning.
(e) The appellant has traits falling within the category of a borderline personality disorder, but Dr Febbo was unable to identify the presence of a specific personality disorder.
(f) The appellant has a number of risk factors in relation to future sexual violence. In particular, Dr Febbo said:
I note the presence of physical coercion in sexual violence, problems with stress or coping, major mental illness, problems with substance use, diversity of sexual violence, problems with intimate relationships, problems with self-awareness, and problems with planning. I also note the possible presence of chronicity in sexual violence, psychological coercion in sexual violence, minimisation of sexual violence, escalation of sexual violence, sexual deviance, in addition to suicidal ideation.
(g) Dr Febbo concluded it is 'fair to say' the appellant is at significant risk of engaging in further sexual violence.
44 Mr Jobson was of the view, based on tests he administered, that the appellant was at a high risk of future sexual offending.
45 The author of the pre-sentence report noted the appellant appears to target adult women who are incapacitated, to some extent, either by alcohol intoxication or by being asleep. Also, he targets children whom he has had the opportunity to groom.
46 Although the appellant expressed regret to the author of the pre-sentence report for his criminal behaviour, he attempted to justify and minimise the severity of his offending:
[F]or example he mentioned that one of the victims (13 years old) was wearing a low cut top, which he believed was provocative and 'flirtatious', therefore he 'surrendered' to her. [The appellant] appeared to lack any insight by claiming that this particular victim, also a friend of the family, would often stay over 'to spend time with him'.
47 Also, the appellant told Dr Febbo that 'he has visual impairment and one of the reasons why he was using a camera [to indecently record TFA] was so he could see clearly'.
48 The sentencing judge referred to victim impact statements from the victims. Each of them has suffered significant and ongoing psychological trauma as a result of the offending. Their sense of security and personal integrity was violated. TJC felt betrayed. She has become very wary of other people and anxious when she is at home alone. MJR has become obsessive about her personal security when she is at home, especially at night. She is taking prescribed medication for anxiety and depression. After the offending, she was absent from work for six months. When the appellant restrained MT she thought he intended to kill her. After the offending, MT's sense of insecurity was so great she went and lived with her mother for about four months. She has become hyper-vigilant at night, suffers from insomnia and has undergone counselling.
49 His Honour mentioned the appellant's pleas of guilty and said he would get credit for them in the sentencing process. The pleas were entered after the State brief was prepared and after the committal to the District Court, but before the State filed an indictment.
50 The sentencing judge found that the appellant, by his pleas of guilty, had facilitated the administration of justice. His Honour also found that the appellant had accepted responsibility for his offending and had demonstrated remorse.
51 The appellant has a prior criminal record but he has not previously been imprisoned. The prior offences were committed between 1988 and 2003. They included being unlawfully on premises (two convictions), the unlawful use of an optical surveillance device, being on premises without lawful excuse, possession of prohibited drugs and smoking implements (several convictions), stealing (two convictions) and disorderly conduct.
52 His Honour said the appellant was a danger to females who were entrusted to his care. Also, the appellant had no respect for the personal rights and sexual integrity of others. His Honour described the appellant's attitude as 'predatory' and said his offending called for condign punishment.
The sole ground of appeal
53 The sole ground of appeal alleges the total effective sentence of 11 years 9 months' imprisonment infringed the first limb of the totality principle.
54 On 8 May 2013, leave to appeal was granted on this ground.
The appellant's submissions
55 Counsel for the appellant emphasised:
(a) The appellant had pleaded guilty and this had avoided the expense of a trial and the need for the victims, three of whom were under the age of 16, to give evidence.
(b) None of the offences involved penile penetration and 'the degree of violence was comprised in the force used in perpetration of the elements of the various offences'.
(c) The appellant's offending was not in the most serious category.
56 According to counsel, the total effective sentence was 'above and outside the range of sentences usually imposed in comparable cases'.
The merits of the appeal
57 The first limb of the totality principle requires that the total effective sentence imposed on an offender who has committed multiple offences must bear a proper relationship to the overall criminality involved in all of the offences (including those, if any, in respect of which the offender is still serving or is yet to serve a term of imprisonment), viewed in their entirety, having regard to all relevant circumstances including those referable to the offender personally (and including, for example, the desirability of accommodating any wish to rehabilitate), and the total effective sentences imposed in comparable cases.
58 The maximum penalties for the sex, burglary and deprivation of liberty offences committed by the appellant are set out in the schedule to these reasons.
59 It is well-established that:
(a) The primary sentencing considerations for sex offences of the kind committed by the appellant are punishment of the offender and personal and general deterrence.
(b) There is no tariff for offences of this kind because of the great variation that is possible in the circumstances of the offending and the offenders.
(c) Each case depends on its individual facts and circumstances, but it is important to appreciate what sentences are customarily imposed for similar offending.
60 The primary sentencing considerations for aggravated burglary are punishment of the offender and personal and general deterrence. Aggravated burglaries can be and are committed in a wide range of circumstances. In general, home burglaries which involve violence, including sexual violence, will be punished more severely. Each case depends on its individual facts and circumstances but, as with sex offences, it is important to understand the range of sentences customarily imposed for similar offending.
61 No tariff exists for the offence of deprivation of liberty because of the great variation that attends the commission of this offence. The sentence to be imposed in a particular case depends on the individual facts and circumstances.
62 As to the offences of indecent dealing against CLT and TJC (counts 2, 6, 7, 8 and 9), I have considered the sentencing dispositions for this kind of offence in Ferry v The Queen [2003] WASCA 207; Hodder v The State of Western Australia [2005] WASCA 257; P v The State of Western Australia [2007] WASCA 220; (2007) 177 A Crim R 69; JD v The State of Western Australia [2008] WASCA 147; GJT v The State of Western Australia [2011] WASCA 263; (2011) 214 A Crim R 272; KJW v The State of Western Australia [2012] WASCA 162 and Murphy v The State of Western Australia [2013] WASCA 178 and the decisions referred to in those cases.
63 As to the offence of attempted indecently recording TJC (count 5) and the offences of indecently recording TJC and TFA (counts 10 and 14), I have considered the sentencing dispositions for this kind of offence in M v The State of Western Australia [2010] WASCA 77 and Hine v The State of Western Australia [2010] WASCA 216.
64 As to the offence of deprivation of liberty against MT (count 16), I have considered the sentencing dispositions for this kind of offence in The State of Western Australia v Tik [2009] WASCA 122; The State of Western Australia v Cheeseman [2011] WASCA 15 and Ackley v The State of Western Australia [2013] WASCA 199 and the decisions referred to in those cases.
65 As to the offences of indecent assault against MJR and MT (counts 12, 13 and 17), I have considered the sentencing dispositions for this kind of offence in Narkle v Hamilton [2008] WASCA 31; RNN v The State of Western Australia [2010] WASCA 26 and RFS v The State of Western Australia [2012] WASCA 58.
66 As to the offences of aggravated burglary involving MJR and MT (counts 11 and 15), I have considered the sentencing dispositions for this kind of offence, and for the similar offence in s 401(2) of the Code, in Rigby v The State of Western Australia [2005] WASCA 134; Thorn v The State of Western Australia [2008] WASCA 36; Cooper v The State of Western Australia [2009] WASCA 37; Ugle v The State of Western Australia [2012] WASCA 104; (2012) 223 A Crim R 115 and Prempeh v The State of Western Australia [2013] WASCA 150 and the decisions referred to in those cases.
67 As to the offences of aggravated sexual penetration without consent and sexual penetration without consent against MT (counts 18 and 19), I have considered the sentencing dispositions for these kinds of offences in Rigby; Thorn; Cooper; Warburton v The State of Western Australia [2009] WASCA 113; (2009) 196 A Crim R 361; Ugle; Clarke v The State of Western Australia [2013] WASCA 67 and Ackley and the decisions referred to in those cases.
68 It is unnecessary to reproduce the relevant facts and circumstances or the sentences imposed in the previous cases I have considered. There are some comparable features between some of those cases, on the one hand, and the present case, on the other, but there are also distinguishing factors.
69 In the present case, it is very difficult, for the purposes of comparison, to rely on any previous total effective sentences imposed in this State for sex, burglary and deprivation of liberty offences because the nature and extent of the appellant's overall offending is very unusual. No previous case is truly comparable. In particular:
(a) the appellant offended over a period of about seven years from 2005 to 2011;
(b) his offending involved numerous acts of sexual violation against five victims;
(c) two of the victims were young children, aged 7 and 13, who were known to the appellant; two other victims were older children, aged 14 and 17, who were unknown to him; and the remaining victim was an adult woman, aged 37, who was unknown to him;
(d) all of the victims were especially vulnerable by virtue of youth, the clandestine nature of the offending or being asleep or incapacitated;
(e) the offences against CLT and TJC were committed at night while they were in the care of the appellant and his wife; and
(f) the appellant's offending escalated over the seven-year period: all of the offences were serious but counts 15 to 19, which were committed against MT on 27 September 2011 and involved a combination of burglary, sex and deprivation of liberty offences, were especially egregious.
70 It is readily apparent, from the features of the appellant's offending I have just enumerated, that his overall offending was very serious.
71 The offences against MJR and MT were alarming. Both involved home invasions in the early hours of the morning and sex offences against victims who were unknown to the appellant. Each of the victims awoke to discover the appellant sexually assaulting them. The appellant, in the course of offending against MT, wore gloves with a view, no doubt, to guarding against forensic evidence that might incriminate him; he placed his hand over the victim's mouth and wrapped his hands around her throat for the purpose of overcoming any resistance; he restrained the victim by tying her arms and left leg; he in effect blindfolded the victim by placing her underwear over her face and head; and he used his fingers and the victim's vibrator to sexually penetrate her. The humiliation and degradation of MJR and MT was made worse by the appellant's use of a mobile telephone to record visual images of his assaults upon them.
72 I accept, however, that the appellant's individual offences against CLT and TJC were at the lower end of the scale of seriousness in child sex cases and that his individual offences against MJR and MT were not in the worst category of home invasion cases involving sexual violence.
73 The appellant is at a high risk of engaging in future sexual offending. Although the appellant has expressed regret for his criminal behaviour, he has attempted to justify and minimise its severity. The reports from Dr Febbo and Mr Jobson paint a bleak picture.
74 Unsurprisingly, the appellant's offending has caused each of the victims significant and ongoing psychological trauma. They were highly vulnerable in the circumstances in which the offences were committed.
75 None of the appellant's offending was impulsive. There was planning and premeditation. He was persistent.
76 The appellant was aged between 34 and 41 at the time of the offending and was 42 when sentenced. He was not youthful or inexperienced for sentencing purposes. The principal sentencing considerations were appropriate punishment, personal and general deterrence, and the protection of vulnerable girls and women.
77 The number of victims, the duration of the offending, the planning, premeditation and persistence, the escalation in the seriousness of the criminal conduct, the appellant's lack of insight and his high risk of recidivism required the imposition of a very lengthy term of imprisonment.
78 The appellant did not have the mitigation of being otherwise of good character. He had a prior criminal record including convictions for being unlawfully on premises and for the use of an optical surveillance device. I acknowledge, however, that he had not previously been sentenced to a term of imprisonment.
79 The principal mitigating feature was the appellant's pleas of guilty. However, the pleas were not entered at the earliest reasonable opportunity. They were made after the State brief, including witness statements from the five victims, had been prepared and the appellant had been committed to the District Court for trial. Nevertheless, the pleas facilitated the administration of justice and spared the victims the ordeal of giving evidence. The trial judge also found the pleas indicated an acceptance of responsibility and remorse.
80 In my opinion, the total effective sentence of 11 years 9 months' imprisonment was high. If I had been sentencing the appellant at first instance I would probably have imposed a lower total effective sentence. However, after taking into account the maximum penalties, the circumstances of the offending (including the vulnerability of the victims) viewed as a whole, the total effective sentences imposed in previous cases with at least some features comparable to the appellant's offending, the place which the appellant's overall criminal conduct occupies on the scale of seriousness of offences of this kind, the appellant's personal circumstances and antecedents, and all other relevant sentencing factors including the pleas of guilty, I am not persuaded that the total effective sentence was beyond the range open on a proper exercise of the sentencing discretion. The appellant has not established that the total effective sentence does not bear 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. I am not satisfied that the first limb of the totality principle was infringed.
81 The ground of appeal fails.
Conclusion
82 I would dismiss the appeal.
83 MAZZA JA: I agree with Buss JA.
Schedule
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Penalty |
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15 months concurrent |
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s 321(8)(a) s 552 |
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9 months cumulative |
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12 months concurrent |
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24 months cumulative |
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15 months concurrent |
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12 months concurrent |
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15 months concurrent |
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24 months cumulative |
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12 months concurrent |
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18 months cumulative |
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s 321(8)(a) |
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15 months concurrent |
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24 months cumulative |
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18 months concurrent |
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20 months concurrent |
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head sentence |
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4
22
1