R v Chilvers
[2003] WASCA 87
•28 APRIL 2003
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : COURT OF CRIMINAL APPEAL
CITATION: R -v- CHILVERS [2003] WASCA 87
CORAM: ANDERSON J
PARKER J
MCKECHNIE J
HEARD: 20 MARCH 2003
DELIVERED : 28 APRIL 2003
FILE NO/S: CCA 182 of 2002
BETWEEN: THE QUEEN
Appellant
AND
DAVID CHILVERS
Respondent
Catchwords:
Criminal law and procedure - Sentencing - Sexual offences involving children - General principles - Crown appeals - Principles
Legislation:
Nil
Result:
Appeal dismissed
Category: A
Representation:
Counsel:
Appellant: Mr D Dempster
Respondent: Mr T F Percy QC & Mr N J Mullany
Solicitors:
Appellant: State Director of Public Prosecutions
Respondent: Lewis Blyth & Hooper
Case(s) referred to in judgment(s):
Dauphin v The Queen [2002] WASCA 104
De Luce v The Queen, unreported; CCA SCt of WA; Library No 960375; 19 July 1996
Dinsdale v The Queen (2000) 202 CLR 321
Hodder v The Queen (1995) 15 WAR 264
Keding v The Queen, unreported; CCA SCt of WA; Library No 940522; 22 September 1994
Lowndes v The Queen (1999) 195 CLR 665
Pihema v The Queen, unreported, CCA SCt of WA; Library No 940137, 17 March 1994
Podirsky v The Queen (1990) 3 WAR 128
R v Boyd [1984] WAR 236
R v EPR [2001] WASCA 214
R v GP (1997) 18 WAR 196
R v Hough [2002] WASCA 42
R v Johnson, unreported; CCA SCt of WA; Library No 920112; 5 March 1992
R v N [1998] 2 NZLR 272
R v Suarez-Mejia [2002] WASC 187
R v Wilson, unreported CCA SCt of WA; Library No 950258; 26 May 1995
Trescuri v The Queen [1999] WASCA 172
Woods v The Queen (1994) 14 WAR 341
Case(s) also cited:
Boudville v The Queen [2001] WASCA 133
Chinnery v The Queen [2000] WASCA 295
Goundar (2001) 127 A Crim R 331
Lowe v The Queen (1984) 154 CLR 606
Pearce v The Queen (1998) 194 CLR 610
Price (1988) 33 A Crim R 359
R v Black [2002] WASCA 26
R v Grein [1989] WAR 178
R v Herbert [2003] WASCA 27
R v Teare-Williams, unreported; CCA SCt of WA; Library No 970562; 28 October 1997
R v Valentine [2003] WASCA 7
Ryan v The Queen (2001) 206 CLR 267
Wong v The Queen (2002) 76 ALJR 79
ANDERSON J: I have read in draft the judgment of McKechnie J and agree with it. I would dismiss this appeal.
PARKER J: I have had the advantage of reading in draft the judgment now published by McKechnie J.
I agree that in the particular circumstances of this case it was open to the sentencing Judge in the proper exercise of discretion, to impose the sentences from which this appeal is brought.
Essentially for the reasons published by McKechnie J this appeal must be dismissed.
MCKECHNIE J:
Introduction
The respondent, then aged about 40, had been in a de facto relationship for some four to five years, when, in late 2000, he indecently dealt with "D" the 12 year old daughter of his partner desisting only when he heard a knock at the door. Later in the same year he again indecently dealt with her and shortly thereafter indecently dealt with her one more time. "D" complained to her mother who confronted the respondent about his behaviour on one occasion. Ultimately, the attitude of her mother caused "D" to leave home for a time. When she returned, the respondent called her "dobber" saying:
"I had to earn Mum's trust back for you telling what happened."
Although there were no more indecent dealings on "D", in early 2001 the respondent sexually penetrated her older sister "A" who was then 14 by inserting the tip of his finger into her vagina.
Sometime later in 2001 he indecently dealt with "A", and in December 2001 again sexually penetrated her as on the first occasion. "D" entered the room and observed part of this sexual assault.
In the District Court, at Perth, on 17 September 2002 the respondent pleaded guilty to two indictments. He was sentenced on 24 September 2002. In respect of "D" indictment No 1655/02 he received the following sentences:
•Count 1: indecent dealing with a de facto child under the age of 16 years - 18 months imprisonment suspended for two years;
•Counts 2 and 3: indecent dealing with a de facto child under the age of 16 years - ISO for 2 years with program and supervision requirement and a condition that the respondent continue the Safecare Program until completion.
In respect of "A" Indictment No 1362/02 he received the following sentences:
•Count 1: sexual penetration of a de facto child - 18 months imprisonment cumulative on the sentence imposed on count 1 of indictment 1655/02; suspended for 2 years;
•Count 2: indecent dealing with a de facto child; and Count 3, sexual penetration of a de facto child: ISO for 2 years.
From those sentences the Crown appeals on the grounds that the ISO imposed was so inadequate as to manifest error in the exercise of the sentencing discretion and that the Judge erred in suspending the terms of imprisonment imposed. The total period of imprisonment totalled 3 years. The Crown does not contend that such a sentence is itself manifestly inadequate if ordered to be served forthwith.
The Judge's Sentencing Reasons
The sentencing Judge noted that the offences were serious and that the offences against "A" occurred while the respondent was earning his wife's trust. She concluded her sentencing remarks as follows:
"You are 42 years of age. You have an excellent work record despite this behaviour which I think I have made clear is deserving of social condemnation. The fact is that otherwise you have been a good citizen and you have many fine qualities I'm sure. You have an excellent work record and what affects me is, of course, that you are contributing financially to this family. These offences are serious: it is the combination more than each individual act, because each individual act in itself is not at the higher end of the scale.
But given your excellent work record; that you are contributing financially to the family; that the acts are not at the higher end of the scale, and given all the work that you are doing with Safecare, and the family is doing with Safecare, have led me to the conclusion that it would be in the best interests of the family and the community if I imposed a penalty other than immediate imprisonment. So, in relation to [D] on count 1, you are sentenced to 18 months' imprisonment but that is suspended for 2 years.
In relation to counts 2 and 3 there is an intensive supervision order for 2 years with program and supervision and you are to continue to completion the Safecare program. In relation to [A] on count 1 you are sentenced to 18 months' imprisonment and that is cumulative, but that again is suspended for 2 years. In relation to counts 2 and 3 they are also covered by the intensive supervision order for the period of 2 years.
So far as the suspended term of imprisonment is concerned, you have to understand that it is much more difficult, in a sense, than intensive supervision. If you get into any trouble at all in the next 18 months - and that is even traffic - the suspended term - you will be brought back on that and it may be put into operation. …"
The Safecare Program
It is necessary to say a little more about the Safecare program.
The Judge had obtained a pre‑sentence report and a psychological report. The psychological report of 31 July 2002 was hardly favourable.
However, the Judge was given a report from Safecare Inc dated 13 September 2002. The report stated, and the Judge noted, that the respondent's attendance had been exemplary and that he had paid $1,000 in fees. His wife had attended some sessions and all four children had been seen as part of the children's program.
The report noted that the respondent had made a good beginning in addressing his sexual offending and was a good group participant. He reported ceasing cannabis use and was strongly motivated to continue with Safecare. The report recommended that, from a therapeutic and rehabilitation perspective, the respondent be permitted to continue the Safecare program to completion in the community. This would reduce his risk of re‑offending and would assist him to consolidate the insights that he had already made and to increase his understanding of the childhood origins of his offending. A non‑custodial penalty which allowed for continued treatment and protection from re‑offending would also be much better for him and for his family.
The Scale of the Offences
The Judge twice made reference to the acts being not at the high end of the scale, having adopted this characterisation from a submission made on behalf of the respondent. It is an unfortunate reference because it may tend to focus the Judge's mind only upon the actual acts and not upon the surrounding circumstances. The actual acts of indecent dealing in respect of "D" were respectively touching the vagina on the outside of her underpants until at one point his fingers went into the elastic, running his hands up the outside of the legs of "D" towards her hips and inside the sides of her bather's bottom, then attempting to kiss her and trying to insert his tongue into her mouth.
In respect of "A", the indecent dealing consisted of touching her vagina on the outside of her pyjama shorts. The two sexual penetrations occurred when he kissed "A" on the outside of her vagina while at the same time inserting the tip of his finger into her vagina. True it is that the physical acts of indecent dealing involved no force and only a minor interference to the person. The acts of sexual penetration did not cause pain but, necessarily, did involve slight penetration.
However, to focus solely on the physical acts without taking account of the surrounding circumstances is to invite error. The circumstances are all important. The Crown particularised each ground of appeal in the same way:
"The sentence failed adequately to reflect the seriousness of the offences and the circumstances in which they were committed, including:
(ii)the relationship of the victims to the accused;
(ii)the breach of trust involved in the commission of the offences;
(iii)the disparity of age between the complainants and the Respondent;
(iv)the youth and vulnerability of the victims;
(v)the fact that there were two victims who were siblings;
(vi)the conduct of the Respondent towards the complainant the subject of (the other indictment).
(vii)the conduct of the Respondent towards the complainant the subject of (the other indictment).
(viii)the period of the offending behaviour."
These particulars set out the objective circumstances against which the physical acts must be seen. Mr Percy did not disagree with the existence of any of the matters particularised.
Expressions about the "end of the scale", whichever end is referred to, may mask error for a number of reasons. The maximum penalty for sexual penetration of a de facto child is imprisonment for 20 years. The maximum penalty for indecently dealing with a de facto child is imprisonment for 10 years. These maxima set the upper limits of the "scale". There is no established tariff for sexual offences but, as the authorities to which I will shortly refer indicate, intra‑familial sexual offences are all serious and generally attract a range of sentences above 4 years.
Where there is no tariff, the talk of a "scale" may cause confusion. It is of course always possible to imagine worse cases. For such cases, the maximum penalty, or something close to it, may be reserved. Every case is serious. It is cold comfort to a victim, especially a child victim, to hear the offence is "not at the higher end of the scale". Such an expression, unless carefully explained, may give the false impression that the law regards the affronts to their person as not high.
Before this Court can interfere it must identify error by the sentencing Judge. The Crown points to the use of this expression as indicating the Judge acted on a wrong principle or a misunderstanding on the facts. While I think that the reference was unfortunate, the full text of the sentencing remarks shows that the Judge clearly regarded the offences as serious. She did impose sentences of imprisonment on each indictment and indicated that but for the matters of mitigation the respondent "would now be going straight to gaol". I do not consider the Judge has made an error.
Principles in Relation to Crown Appeal
The principles are oft stated and set out in many authorities of the High Court and this and other courts. The most recent comprehensive re‑statement of principle is R v Suarez-Mejia [2002] WASC 187. Relevant in particular to the disposition of this appeal are two principles. The first is that this Court must identify specific error of fact or principle in the sentence under appeal. The second is that this Court cannot substitute its own opinion for that of the sentencing Judge merely because it considers the sentence inadequate or excessive. Lowndes v The Queen (1999) 195 CLR 665.
Sentencing Principles
I turn to the general appeal ground of inadequacy of sentence made manifest by a non‑immediate custodial disposition.
There are many cases on sentencing offenders guilty of child sexual abuse within a family or in a closed community. Most cases are applications of settled principle. The principles relevant to this appeal are:
•There is no tariff for sexual offences.
•Sexual offences are very serious.
•They involve a breach of trust.
•Crimes against more than one child aggravate the offending conduct especially if one child becomes aware that a sibling has also been a victim.
•Offences repeated over a period are aggravating circumstances.
•The dominant sentencing considerations are punishment and general deterrence.
•Disparity in age can be an aggravating feature.
•Vulnerable victims should be properly protected by the imposition of deterrent sentences.
•Mitigating factors do not have as much weight as they might do in other cases.
•Exceptional circumstances must be shown to justify a sentence other than immediate imprisonment
•However, maintaining the family unit and the prospects of success in adopting a welfare approach are powerful mitigating factors.
•The desire of a family for a father not to be imprisoned is significant but by no means conclusive.
•Forgiveness by a victim is significant but not conclusive.
•Ordinarily, sexual offences of this type would merit immediate imprisonment for a significant period but this is not an invariable rule.
•The decision to suspend a sentence depends on consideration of all factors relevant to the offender whether aggravating or mitigating, including the objective features of the offence.
These principles are distilled from a series of cases: Podirsky v The Queen (1990) 3 WAR 128; Woods v The Queen (1994) 14 WAR 341; R v GP (1997) 18 WAR 196; Trescuri v The Queen [1999] WASCA 172; De Luce v The Queen, unreported; CCA SCt of WA; Library No 960375; 19 July 1996; Dauphin v The Queen [2002] WASCA 104; Pihema v The Queen, unreported, CCA SCt of WA; Library No 940137, 17 March 1994; Hodder v The Queen (1995) 15 WAR 264; R v N [1998] 2 NZLR 272; R v Hough [2002] WASCA 42; Keding v The Queen, unreported; CCA SCt of WA; Library No 940522; 22 September 1994; R v Boyd [1984] WAR 236; R v Johnson, unreported; CCA SCt of WA; Library No 920112; 5 March 1992; R v EPR [2001] WASCA 214; R v Wilson, unreported CCA SCt of WA; Library No 950258; 26 May 1995; Dinsdale v The Queen (2000) 202 CLR 321.
Application of the Principles to the Sentence
The reason why the Judge did not impose immediate imprisonment was because of the respondent's attendance at the Safecare program. She noted that the respondent had moved out of the family home before he went to Safecare and committed himself to the conditions of the Safecare contract which preclude him from any unsupervised contact with any child under the age of 18 years for a significant period.
A sentence may be inadequate or excessive because the wrong type of sentence has been imposed (for example, custodial rather than non‑custodial): Dinsdale at [6.] That is the essence of the Crown's submission. The offences were so serious that only an immediate term of imprisonment was appropriate. In order for the Crown to make good its appeal it must also establish the corollary; namely, that a suspended sentence or an ISO was so inappropriate as to manifest error. I am unable to accept the corollary. It seems to me that this is a case where, paying proper weight to the discretion entrusted to the Judge, it is not possible to say that a suspended sentence and an ISO were inappropriate. As Boyd and Hodder illustrate, even in cases of sexual assault, sometimes the community's interests are best served by a sentencing disposition which maximises the possibility of rehabilitation for the offender at the expense of a lengthy or, in this case, any term of imprisonment to be immediately served. To hold otherwise would effectively deny any operation of the provisions of the Sentencing Act relating to suspended sentences and ISOs in cases of intra‑familial sexual offences. Whilst I acknowledge that such cases are likely to be rare, I do not consider the sentencing principles I have outlined above, when applied to all the circumstances of this case, compel the conclusion that only an immediate sentence of imprisonment is appropriate.
There could have been no valid complaint if the Judge had concluded that a sentence of immediate imprisonment was required. However, the Judge exercised a sentencing discretion within the parameters open to her and therefore this appeal must be dismissed.
A Subsequent Report from Safecare
At the hearing of the appeal the respondent tendered a further report from Safecare dated 13 March 2003. Six months have elapsed since the sentence and the hearing of the appeal. During that time, the report indicates, the respondent has progressed satisfactorily and he and the family members are benefiting considerably from the opportunity which has been provided by his non‑custodial penalty. The delay is one to which no fault can be attributable to the Crown. Nevertheless, it is a fact to be weighed. It will not in all cases be decisive.
If the Crown had made good its grounds of appeal this Court would have been called upon to re‑sentence the respondent. This new Safecare report would be then considered. Having regard to its content, and to the delay in re‑sentencing the respondent, I would not have imposed a different sentence.
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