R v CW - [2000] WASCA 81

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : COURT OF CRIMINAL APPEAL

CITATION: R -v- CW [2000] WASCA 81

CORAM: PIDGEON J
WALLWORK J
MURRAY J

HEARD: 2 FEBRUARY 2000

DELIVERED : 3 APRIL 2000

FILE NO/S: CCA 202 of 1999

BETWEEN: THE QUEEN
Appellant
AND
CW
Respondent

Catchwords:

Criminal law and procedure - Sentencing - Sexual offences against daughter - Offender's low intellect provided no reason for leniency - Aggregate term increased - Turns on own facts

Legislation:

Nil

Result:

Appeal allowed
Sentences varied to increase aggregate term of imprisonment from 7 to 10 years

Representation:

Counsel:

Appellant: Mr R E Cock QC
Respondent: Ms L Boston

Solicitors:

Appellant: State Director of Public Prosecutions
Respondent: Director of Legal Aid

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

Cooksley [1982] Qd R 405
H (1980) 3 A Crim R 53
Hurd v The Queen (1988) 38 A Crim R 454
James (1985) 14 A Crim R 364
Lowndes v R (1999) 195 CLR 665
Man v The Queen (1990) 50 A Crim R 79
Poole (1999) 106 A Crim R 459
R v Attard (1999) 105 A Crim R 431
R v Champion (1992) 64 A Crim R 244
R v Clarke [1996] 2 VR 520
R v Dalgety [2000] WASCA 10
R v Grein [1989] WAR 178
R v Halliday, unreported; CCA SCt of WA; Library No 980143; 3 April 1998
R v Kiltie (1974) 9 SASR 452
R v Leucus (1995) 78 A Crim R 40
R v Lippiatt, unreported; CCA SCt of WA; Library No 980065; 17 February 1998
R v Tsiaras [1996] 1 VR 398
Symonds v The Queen, unreported; CCA SCt of WA; Library No 980616; 28 October 1998
The Queen v Masolatti [1976] 14 SASR 124
Trescuri v The Queen [1999] WASCA 172
Woods v The Queen (1994) 14 WAR 341

Case(s) also cited:

Dempsey v R, unreported; CCA SCt of WA; Library No 960059; 9 February 1996
Jarvis v R (1998) 20 WAR 201
Johnston v R, unreported; CCA SCt of WA; Library No 960153; 22 March 1996
Mill v R (1988) 166 CLR 59
Pearce v R (1998) 72 ALJR 1416
Podirsky (1989) 43 A Crim R 404
R v Richards [1999] WASCA 105
R v Ward [1999] WASCA 157
R v Wozencroft, unreported; CCA SCt of WA; Library No 6606; 25 February 1987
Shaw v R (1989) 39 A Crim R 343
Smedley v R; R v Smedley, unreported; CCA SCt of WA; Library No 990146; 23 March 1999

PIDGEON J: In this matter I would allow the appeal and substitute the sentences proposed by Murray J with whose reasons I agree.
There was in the indictment a count of indecent dealing followed by six counts of incest. They were between the respondent and his daughter. The daughter was born in 1969. The first count of indecent dealing charged would have occurred when she was 13‑years‑old. The six counts of incest actually charged commenced in 1984 when she was 14 years of age and concluded in 1987 when she was 17 to 18 years of age. Both on his account to the police and on the daughter's account, inappropriate behaviour had commenced at a much earlier age. It is also common ground between the two accounts that the acts actually charged were samples of the misconduct. In all these circumstances I consider a sentence as low as 7 years is an indication that the sentencing discretion miscarried. There is the extremely serious nature of the actual acts themselves. There is the aggravating feature of her being beaten when she did tell another person of what was occurring. The only mitigating feature was that the applicant at a late stage surrendered to the police, made a full confession, and pleaded guilty on the fast track. This is mitigation that could not be a reason for the sentence becoming as low as it did. The fact that the acts occurred on such a regular basis excludes mitigation on the basis of good character and means the acts cannot be looked at in isolation.
I would see this as a case where very little credit could be given for the respondent's intellectual incapacity. The effect of a psychiatric condition in respect of offences of this type was considered by Steytler J in Symonds v The Queen, unreported; CCA SCt of WA; Library No 980616; 28 October 1998. In that case the offender was suffering a severe psychiatric disorder in the form of a major depression. Steytler J referred to an earlier decision of this Court in R v Lippiatt, unreported; CCA SCt of WA; Library No 980065; 17 February 1998, where it was said that while mental illness has been held to have a limited mitigatory effect in cases in which imprisonment will be harder to bear because of that illness, it was open to argument whether the wider approach adopted by the Full Court in Victoria in R v Tsiaras [1996] 1 VR 398 should be followed in this State.
In the present case there is not a psychiatric illness, but merely an intellectual incapacity. This could not affect his moral culpability in a case of this type. He knew right from wrong and a person with a lower capacity still knows how wrong behaviour of this type is. It could not be said that an intellectual incapacity of this type would put the respondent in

a position where he is not "an appropriate medium for making an example to others".

I regard the sentence of 10 years proposed by Murray J as being a discounted sentence for what conduct of this type would normally attract and takes into account the fact that the applicant did surrender and plead guilty on the fast track.
WALLWORK J: These are reasons for judgment in a Crown appeal against sentence.
On 14 September 1999, in the District Court at Perth, the respondent was sentenced to an effective total of 7 years imprisonment after he had pleaded guilty to one count of unlawful and indecent dealing with a child under the age of 14 years and six counts of carnal knowledge of the child. The child was his natural daughter.
It should be said straight away that there is an unusual aspect to this case. That is because in about September 1997, when the complainant was 28 years of age, she had spoken to the respondent and asked him why he had committed the relevant offences against her when she was a child. Amongst other things the respondent said: "I'm just a sick man. Why don't you put me in gaol." Later, in 1999, without prompting from the complainant or anyone else, the respondent had gone to the police, who did not know anything concerning the offences, and confessed to them. It was conceded for the appellant at the hearing of this appeal that if the respondent had not done that, there is no reason to think that offences would ever have been prosecuted.
According to Dr Watts, who is a highly qualified clinical and forensic psychologist, the respondent, who is now 54 years of age, has a full score IQ of 63. Dr Watts says:
"This is below 70 which is the cut‑off point for intellectual retardation. Mr Wood would be classed as being in the first percentile, in other words, the bottom 1% of the population. His overall intellectual ability would be classed as mild intellectual retardation. Mr Wood said he could read simple and write simple words and that he could add numbers together but could not do other maths problems. This is in keeping with what I found when I administered the abovementioned psychological tests."

The respondent pleaded guilty to the charges at the first opportunity thus saving his daughter, the complainant, the distress of having to take part in court proceedings. Additionally he saved the State the considerable expense of a criminal trial.
The seven offences concerned commenced in 1982 with an offence of unlawfully and indecently assaulting the complainant, who was then a child under the age of 14 years. Thereafter there were six offences of unlawful carnal knowledge of his daughter, which were committed in 1984, 1986, 1986, 1986, February 1987 and on a date unknown in 1987.
It was common ground that the charges against the respondent were what are sometimes called representative charges. However, the respondent was only to be punished for the seven offences charged in the indictment and not for other offences with which he was not charged. The relevance of there having been other incidents which the respondent admitted, is that the respondent could not claim in mitigation that the offences charged were isolated offences: Cooksley [1982] Qd R 405; H (1980) 3 A Crim R 53; Poole (1999) 106 A Crim R 459. The other incidents if not charged, were part of the background to the charged offences.
It was contended for the Crown (appellant) that the effective total sentence of 7 years imprisonment was manifestly inadequate in all the circumstances and that the learned sentencing Judge had erred when he said:
"The crimes of which you stand convicted call for a starting point of 12 years' imprisonment. That is the gravity of these crimes. They are very serious indeed. Nevertheless, because of all the matters that have been put on your behalf, notably your low intellect, the fact that you went to the police, made a full confession during your interview with the police, you went to the police of your own volition, knowing or believing that you would not in any event be reported, having regard to your own antecedents, history of a dreadful upbringing, I'm going to reduce the sentence from the starting point of 12 years to a term of 7 years imprisonment …."
There are two questions which arise from his Honour's remarks and they are whether the starting point of 12 years imprisonment was manifestly inadequate and whether in any event that term should have been reduced to an effective 7 years imprisonment in consideration of the mitigatory aspects.
The aggregate sentence of 7 years imprisonment was structured by the learned sentencing Judge imposing concurrent sentences of 7 years imprisonment for the offences which had involved sexual intercourse with the child and a concurrent sentence of 3 years imprisonment for the offence of unlawfully and indecently dealing with the child when she was under the age of 14 years. That last‑mentioned offence occurred when the respondent had the child suck his penis.
The appellant relied in its argument on the recent decision of this Court in Trescuri v The Queen [1999] WASCA 172 which was delivered on 10 September 1999. That decision was concerned with 13 offences against two young girls, including unlawful and indecent dealing, sexual penetration without consent and attempted sexual penetration. Those offences also were said to have been representative of a course of conduct over approximately three years. In that case the applicant had pleaded guilty at the earliest opportunity and there was evidence of remorse. On appeal, an effective sentence of 14 years was set aside and a sentence of 10 years imprisonment was substituted.
The reasons for judgment in Trescuri were given by Anderson J, with whose reasons Ipp and White JJ agreed. Because the matters raised by this present application have some similar features to those in Trescuri and because the questions involved are of general importance to the community, I will set out what Anderson J said in Trescuri at par 22 to par 25 of his reasons. That was as follows:
"The Court has also said on many occasions that there is no tariff for sexual offences and that it is neither feasible nor desirable to attempt to establish one. Each case must be judged on its merits. As it was put in Leslie v R, unreported; CCA SCt of WA; Library No 940080; 21 February 1994:
'Exhaustive reference to previous authority, other than to establish general principles and to demonstrate a consistency in approach or the identification of a range of options, will rarely be of assistance.'
Nevertheless, I think it must be said by reference to a long line of sentencing cases in this area of the criminal law that, if his Honour did start at 18 years, he started too high. Without for one moment seeking to diminish the enormity of the criminal conduct engaged in by the applicant and the lasting harm which it probably has done to the complainants, as appears from the victim impact statements and other material presented to the Court, an aggregate term of 18 years' imprisonment is a sentence not usually imposed except in the worst cases.
This case did have bad features. The procuring by a mature adult of children to engage in sexual activity with him in the presence of each other is, of course, extremely serious criminal conduct. When there is added the length of time over which the conduct took place, and the young age and the physical immaturity of the victims, the fact that they were in the applicant's care and the immeasurable trauma experienced by both of the victims, a heavy sentence was inevitable. However, putting the case in context with other cases, as to which see Woods v The Queen (1994) 14 WAR 341, at 354 et seq, the appropriate starting point was 14 years. See also De Luce v R, unreported; CCA SCt of WA; Library No 960375; 19 July 1996. The latter is a case which is not dissimilar to this case.
The applicant pleaded guilty to each of the charges at an early date. It would be fair to say that he pleaded guilty at the first available opportunity. This is a powerful mitigating factor in cases such as this. Not only does it save the State the costs of maintaining the prosecution as a fully defended prosecution, preparing for a complex jury trial and conducting that trial, it also saves the victims from the anguish and lasting trauma of the trial process. That an early plea of guilty is a mitigating factor is expressly recognised in the Sentencing Act 1995 (WA), s 8(2), which provides:
'A plea of guilty by an offender is a mitigating factor and the earlier in proceedings that it is made, or indication is given that it will be made, the greater the mitigation.'
Pleas of guilty are especially to be encouraged in cases of this kind, for obvious reasons. One means of encouraging early pleas of guilty is to reward them - really reward them - with sentencing discounts. In this case, the applicant's intention to plead guilty was made evident in the Court of Petty Sessions at the earliest possible stage, enabling him to be dealt with under the fast track system. Sentencing discounts for pleas of guilty under the fast track system range between 20 per cent and 35 per cent, and are commonly around 30 per cent - Stretton v R, unreported; CCA SCt of WA; Library No 950282; 1 June 1995, per Malcolm CJ, at 5. Whilst the extent of the discount for early pleas of guilty is a matter of discretion, in respect of which there is no hard and fast rule, I think that public policy considerations in obtaining immediate pleas of guilty in cases of this kind would usually result in a larger, rather than a smaller, discount. In my opinion, a proper exercise of sentencing discretion called for a discount of at least 25 per cent in this case, which would reduce the starting-point from 14 years to 10-1/2 years."
In the present case counsel for the appellant submitted that the most obvious error was that the learned Judge made all the sentences concurrent. It was submitted that although 12 years imprisonment may have been a good "finishing point", there had been other cases where 16 or so years had been the appropriate starting point. It was said that in this case there had been a lengthy period over which the offences had been committed and the offences had involved a gross abuse of trust, with evidence of threats to induce the complainant not to complain. It followed that the 12 year starting point was too low.
The appellant conceded that the respondent had voluntarily gone to the police station and confessed to the crimes in circumstances where but for his confession, the police at least, would probably have never known about the offences. However, it was said that the need for general deterrence overrode considerations of leniency in such a case as this. It was submitted that to assess the criminal conduct involved as having a global disposition of 12 years imprisonment before having regard to mitigation, was so inadequate as to be the wrong starting point.
Applying the reasoning in Trescuri to this case, and having regard to the facts in both cases and in similar cases, I do not think that the 12 year starting point which the learned Judge adopted in this case was so manifestly inadequate that this Court should interfere. I say this having regard to the considerations which arise in a Crown appeal concerning which, Malcolm CJ said in R v Grein (1989) WAR 178 at 179‑180:
"The principles applicable to an appeal by the Crown against sentence under s 688(2)(d) of the Criminal Code are well‑settled. In R v Peterson [1984] WAR 329 at 330, they were said by Burt CJ to be identical to those stated by Brennan, Deane, Gallop JJ in R v Tait (1979) 46 FLR 386 at 387‑388. After referring to Harris v The Queen(1954) 90 CLR 652; Kovac v The Queen (1977) 15 ALR 637 and Cranssen v The King(1936) 55 CLR 509 at 519‑520 their Honours said:
'An appellate court does not interfere with the sentence imposed merely because it is of the view that that sentence is insufficient or excessive. It interferes only if it be shown that the sentencing judge was in error in acting on a wrong principle or in misunderstanding or in wrongly assessing some salient feature of the evidence. The error may appear in what the sentencing judge said in the proceedings, or the sentence itself may be so excessive or inadequate as to manifest such error (see generally Skinner v The King (1913) 16 CLR 336 at 339‑340; R v Withers (1925) 25 SR (NSW) 382 at 394; Whittaker v The King (1928) 41 CLR 230 at 249; Griffiths v The Queen (1977) 137 CLR 293).
Although an error affecting the sentence must appear before the appellate court will intervene in an appeal either by the Crown or by a defendant, a Crown appeal raises considerations which are not present in an appeal by a defendant seeking a reduction in his sentence. Crown appeals have been described as cutting across "time‑honoured concepts of criminal administration": per Barwick CJ, Peel v The Queen (1971) 125 CLR 447 at 452. A Crown appeal puts in jeopardy "the vested interests that a man has to the freedom which is his, subject to the sentence of the primary tribunal": per Isaacs J, Whittaker v The King at 248. The freedom beyond the sentence imposed is, for the second time, in jeopardy on a Crown appeal against sentence. It was first in jeopardy before the sentencing court'."
In my view, in the present case, the "starting point" could have been higher than 12 years imprisonment but not significantly higher. Error is therefore not established in this aspect of the process.
His Honour reduced the 12 year "starting point" to an effective term of 7 years imprisonment because of the matters which I have set out above.
It was suggested for the appellant amongst other things, that the fact that the counts on the indictment were representative of a persistent and continuing course of sexual abuse occurring at times, by the respondent's own admission, five times a week, made the circumstances "so grave, so grotesque, that a sentence of only 7 years with parole offends the community conscience so as of itself to identify and disclose error." I repeat that the respondent pleaded guilty to seven offences and not to offences occurring five times a week.
The appellant also submitted that the respondent had persistently threatened the complainant not to tell anyone and had assaulted her when she did so.
It is true that the respondent had told the complainant many times not to tell anybody about what he was doing. The assault referred to occurred when the complainant told a lady who was living in the same flats, what her father was doing. The complainant told the police that when that person told her father what the complainant had told her:
"Dad hit me all over my body except my face. I had a lot of bruises all over me but none where you could see them when I was clothed. Dad warned me not to tell anybody about the sex again. I was about 15 years old when we lived [there]."
The complainant said that after that assault she was too scared to tell anyone. However, years later she told her de facto husband that her father had sexually abused her from when she was a six‑year‑old girl. It was about that time that the complainant asked her father why he had done those things to her and was told by him that he was a sick person.

It was submitted for the appellant that a 40 per cent discount for the factors in mitigation, combined with a very low starting point, manifested error sufficient for this Court to intervene. That there had really been no basis to make all the sentences concurrent.
It was not submitted for the appellant that the learned Judge had made any mistake of fact in his sentencing remarks, but it was said that the outcome itself was so erroneous as to demonstrate error.
It was submitted for the respondent that it was in the public interest to encourage offenders like the respondent to walk into police stations and inform the police of what they had done. If offenders did this and then received only a minimal discount for doing so, there was no encouragement to do it. The burden would then fall on the victims to make complaints.
It was further submitted that the respondent was intellectually handicapped and that there were a considerable number of decided cases to the effect that cases of this type were not good vehicles to demonstrate general deterrence.
In his report Dr Watts had said that the respondent had been born with limited intellectual resources and so far as he knew, the respondent had been raised in a family of violence and poverty.
When commenting on the respondent's appreciation of the wrongness of his acts, Dr Watts said:
"Unfortunately this level of distortion probably blurs from him the reality of the major impact he has made in his daughter's life. Like most other social relationships in his life, he is unlikely to ever fully comprehend the damage he has caused and the impact of his behaviour."
Dr Watts was of the opinion that it seemed plausible that the respondent's relationship with his daughter had been the result of a very distorted perception of relationships rather than a predominantly sexual motivation.
In The Queen v Masolatti [1976] 14 SASR 124 at 129 Mitchell J quoted the words of Chief Justice Bray in an earlier case of R v Kiltie (1974) 9 SASR 452, where his Honour had discussed the sentencing of a person who had retarded intelligence and who was stated by a psychiatrist to have "diminished responsibility". Her Honour said:
"During the course of his remarks the learned Chief Justice said:
'Just as we recognise insanity within the meaning of the M'Naghten Rules as completely exculpatory so we should regard low intelligence and diminished responsibility falling short of such insanity, as mitigatory.' "
Her Honour continued:
"I respectfully agree with those remarks and although they were made in the course of a dissenting judgment I do not find anything in the reasons for judgment of the other members of the court to indicate a dissent from them."
In the decision of Kiltie (supra) Chief Justice Bray had said at 453 of his reasons:
"I think these must be mitigating factors. There are several purposes of punishment and several principles to be observed in sentencing, but it would be a bad day for the criminal law if the degree of moral guilty of the particular defendant in the dock were to be treated as irrelevant. The law, and above all the criminal law, should not get too far out of touch with the general feelings of the community and punishment should bear some relation to dessert. The purpose of the law is to give every man his due says the celebrated maxim of Roman law, and Salmond adds that the civil law gives to the plaintiff, the criminal law to the defendant, what he deserves. (Salmond on Juris prudence (8th ed) (1930) p117)."
In Hurd v The Queen (1988) 38 A Crim R 454 where the offender had suffered from a combination of brain damage, paranoia and intoxication from Valium and alcohol, Cox J said at 465:
"The dilemma in a case like this is to determine how much responsibility the mentally disordered applicant should bear. Ex hypothesi he is responsible for his actions - he has not reached that state where he is afflicted with mental disease to such an extent as to render him incapable of knowing that his act is one which he ought not to do and his acts are voluntary and intentional. In respect of the third count his plea acknowledged that they were in addition wilful. Nevertheless, the medical evidence clearly demonstrates that he had far less perception of the wrongness of his actions and less capacity to control his behaviour generally than a person unafflicted with any kind of mental disease. For that reason he should have been treated as far less morally responsible and deserving of less punishment."
In Man v The Queen (1990) 50 A Crim R 79 the Court of Criminal Appeal of Victoria considered a sentence for armed robbery of a bank by a person who suffered from chronic paranoid schizophrenia. In that case Fullagar and Hampel JJ agreed with the reasons of Mr Justice Crockett who at p 83 said:
"Well, of course, the offence was conducted with considerable efficiency and with total awareness on the part of the perpetrator as to what he was doing. And clearly enough it was carried out in the context of careful plans being laid both for the perpetration of the offence and the offender's later get-away. But none of that, however, is inconsistent with the fact that at the time the applicant was suffering from a condition of paranoid schizophrenia. It is in the area of motivation for the commission of the crime that it seems to me the Judge was also required to have regard to the question of the applicant's mental stability. This he appears to have completely failed to have done. The applicant's motive was not greed in the usual way. It is true that he did what he did to get money and he wished to have money to serve his own personal purposes. But the motive to get the money and to get it by the means he employed, so that he might then spend it for the purposes that he had in mind, all sprang from his mental illness. He needed the money to further some bizarre ends connected with his view about the inadequacies of society which he thought required him to take steps to remedy or eradicate. The Judge was required to consider whether the applicant's being so moved to act as he did reduced the applicant's culpability. If so, this could serve to mitigate the offence."
In his paper "Sentencing the Mentally Disordered Offender in Australia" in the International Journal of Law and Psychiatry, vol 4, at 107-122, 1981 Mr Ivan Potas wrote:
"Society is more likely to understand and excuse, and therefore less likely to blame a mentally disordered person who has committed a proscribed act than if that act were to be committed by a 'normal person'."
Having referred to the philosophies of Beccaria, Bentham and Montesquieu, Mr Potas quoted Sir Rupert Cross as saying:
"The infliction of punishment although tending towards crime reduction is unjustified if it is not also morally deserved." R Cross 'The English Sentencing System' 1975, 118. Mr Potas said at 122:
"Modern sentencing practice has allowed into this scheme of things an individualised approach enabling factors personal to the offender as well as factors relating to the circumstances of the particular offence to be taken into account. This individualisation has been imported into the system of sentencing for reasons of justice and humanity."
Those remarks are consistent with the reasons of Burt CJ in James (1985) 14 A Crim R 364, a case which was not concerned with mental illness, where at 366 his Honour referred to some sentencing criteria proposed by the Law Reform Commission of Australia, and said:
"I would adopt those criteria at least to indicate the correct approach and to indicate in general terms the matters relevant to the question to be decided but I would add, and I think it to be important, that in the application of those criteria one must always have regard to the character and physical and mental condition of the person to be sentenced and, indeed, to all things personal to him. Compare s20(1) of the Powers of Criminal Courts Act 1973 (Imp)."
In an article "Sentencing the Mentally Disordered Offender" in the Law Institute Journal, Professor Fox stated:
"Sentencers reserve the right to mitigate a sentence as an act of mercy or compassion. They also insist that mercy be granted in a principled way and not randomly. One justification for mitigation is that general deterrence needs to be given little weight because the mentally disordered offender is not 'an appropriate medium for making an example to others.' " Mooney, Full Court of Victoria, unreported, 21 June 1978.
Professor Fox continued:
"Sir George Lush, whilst on the Victorian Supreme Court, emphasised the moral basis of this approach when he said:
'A sentence imposed with deterrence in view will not be acceptable if its retributive effect on the offender is felt to be inappropriate to his situation and to the needs of the community.' " Mooney, op. cit. see also Anderson (1981) VR 155, 160-161.
In R v Champion (1992) 64 A Crim R 244, Kirby P considered the relevance of deterrence in the case of a person with an intellectual handicap. At 254, his Honour said:
"In Letteri [unreported, Court of Criminal Appeal, NSW, 18 March 1992], Badgery-Parker J (with the concurrence of Gleeson CJ and Sheller JA) said at p 14:
'The principle … is clear enough. It is correctly stated as follows – that whereas general deterrence is a relevant consideration in every sentencing exercise, it is a consideration to which less weight should be given in the case of an offender suffering from a mental disorder or severe intellectual handicap. In an extreme case, the proper application of this principle may produce the result [that] considerations of general deterrence are totally outweighed by other factors.'
The reason for this variation on the usual theme is not hard to find. It is imputed to the general community that it will understand that a person with the intellectual capacities of a child will need to be deterred but may need special attention in order that the deterrence will be effective. Moreover, the full understanding of the authority and requirements of the law, which may be attributed to the ordinary individual of adult intellectual capacities, cannot be expected of a person who, although adult in bodily form, retains the intellectual capacities of a child. Because the constraints which may be demanded of a person with ordinary adult intellectual capacities may not operate, or operate as effectively, in the case of a person with significant mental handicaps, the community (reflected by the Judges) applies to such people the principles of general deterrence in a way that is sensibly moderated to the particular circumstances of their case. General deterrence still operates: see Roadley (at 343). It is in place for the protection of the community and the victims of offences which the community rightly takes most seriously. But as that principle falls upon a person such as this applicant, it is necessarily a consideration to which less weight can, and therefore should, be given."
See also R v Tsiaras [1996] 1 VR 398 per Charles, Callaway JJA and Vincent AJA at 400.
In R v Attard (1999) 105 A Crim R 431 at 434, Charles JA cited with approval the passage in the judgment of Kirby P quoted above, which, he noted, had been approved in Victoria. He went on to indicate that, whether in a particular case, a psychiatric condition should reduce or eliminate general deterrence as an appropriate purpose in sentencing will depend on the nature and severity of its symptoms and its effect on the mental capacity of the offender.
In their recent work "Sentencing - State and Federal Law in Victoria" 2nd ed (1999), Professors Fox and Freiberg say at 293‑294:
"There are a number of aspects to the mitigatory effects of mental disorder or intellectual incapacity. First, mental disorder may reduce the moral culpability of the offender to the extent that it warrants a lesser penalty. In this case, it affects the punishment that is just in all the circumstances of the case and the relevance of denunciation. Second, it affects the weight to be accorded to deterrence. The question to be answered is whether the interests of society permit, or the interests of the offender require, that the sentence to be passed be reduced from what would otherwise be appropriate. General deterrence is given little weight, because the mentally disordered offender is not considered to be 'an appropriate medium for making an example to others'. Lush J emphasised the moral basis of this approach: 'A sentence imposed with deterrence in view will not be acceptable if its retributive effect on the offender is felt to be inappropriate to his situation and to the needs of the community'. The idea of deterrence implies some degree of rational judgment on the part of the potential offender. The person must be able to weigh the potential advantages and disadvantages of any particular course of conduct; a mentally disordered person may not possess this reasoning capacity, and to that extent, the deterrence rationale may be untenable." (My emphasis)
In the present case in my view his Honour was correct in taking into account the respondent's mental condition as a mitigatory factor. In Dr Watts' view the respondent did not fully appreciate the wrongness of his acts.
It was further submitted for the respondent that the victim in this case had benefited to some extent by the respondent's action in admitting the offences and also that the admissions had reflected the remorse of the respondent.
In all the circumstances, and particularly bearing in mind that this is a Crown appeal, in my view the appellant has not established that the effective 7 year sentence of imprisonment was so lenient as to manifest error.
In my opinion the learned Judge had regard to all the relevant circumstances and arrived at a just sentence. I would dismiss the appeal.

MURRAY J: I regret that in this matter I take a different view from that expressed by Wallwork J. I have had regard to the fact that this a Crown appeal, which therefore imports into the approach to be taken by an appellate court the principle of double jeopardy which may cause the court to decline to intervene, even if an error in the original sentencing has occurred, unless intervention is considered to be necessary to correct manifest inadequacy of such a kind as to demonstrate an error in principle. Where intervention is thought to be required, the court will exercise such restraint as is thought to be possible in the resentencing process, modifying the outcome towards the bottom or more lenient end of the range of proportionate sentences: R v Grein [1989] WAR 178, 180; R v Leucus (1995) 78 A Crim R 40, 51 ‑ 52; R v Clarke [1996] 2 VR 520, 522. It is axiomatic that intervention should not be contemplated merely because the appellate court would have exercised the sentencing discretion in a manner different from that of the sentencing Judge: Lowndes v R (1999) 195 CLR 665, 671 ‑ 672 [15].
The learned sentencing Judge did not dwell on the facts of the case, but he was clearly conscious of them. In passing sentence he told the respondent that the crimes of which he had been convicted "are very serious indeed and they certainly call for a long term of imprisonment." One can but agree, particularly having regard to the fact that the offences were representative of a course of conduct which the respondent accepted had occurred, making no attempt to suggest that the offences before the court were in any way isolated or represented the totality of the offending: Poole (1999) 106 A Crim R 459. That is not to say of course that the court would do other than sentence only for those offences the subject of the indictment before the court.
Nonetheless, as the learned sentencing Judge found, sexual offences had been committed by the respondent upon his daughter over a period of some five years, commencing when the child was aged 13 and upon the respondent's own admission involving sexual contact with his daughter about twice a week over the period. On her account, sexual offences were committed when she was as young as 10 years of age and penile penetration, of which there were many instances, would have commenced when she was 14. During the period in question the complainant lived with her father without other parental support, her father and mother being separated. The offences only stopped when, at the age of 18, she was finally able to leave and move to live with her mother.
It should be said that the papers before the sentencing court included a record of a very long interview conducted with the respondent by investigating police, which was recorded on video and which contains his admission that over a period of some seven or eight years, he had sexual intercourse with his daughter an average of four or five times a week. He was indeed very frank about the full extent of his offending behaviour, but of course the accuracy of such estimates, recalling in March and April of 1999 events which occurred at least 12 years earlier, is a matter about which the court would have some reservations.
However that may be, there is no denying the gross abuse of trust involved, particularly when the respondent persistently threatened the complainant with harm if she should tell anyone what was occurring. Although there was no suggestion that the offences themselves involved the use of any physical violence, he told her the police would take him away if they were discovered. When she did finally tell a woman of her plight, the respondent beat her. She said he "hit me all over my body except my face. I had a lot of bruises all over me but none where you could see them when I was clothed." The respondent warned her never again to tell anyone. She was then about 15 and thereafter she kept the secret until she finally told her defacto husband.
Even so, she never made any official complaint of what had occurred. In about September 1997 at the age of 28, she went to see her father and they had the following brief conversation. She asked him:
"'Why did you do it to me?'
He said 'Because I didn't get love from your mum.'
I asked 'Didn't you know that it was wrong?'
He said 'I'm just a sick man.'
He asked me 'Why don't you put me in jail?'
I said 'You're living in your own jail'."
It is against that background that the respondent approached the police in early March 1999 to confess what he had done because, as he put it to the investigating officers, "It was driving me crazy". Quite why that was so in early 1999 the respondent did not then make clear, but the learned sentencing Judge accepted that he had finally been brought to the point where he was remorseful for the offending which had occurred so many years ago. That contrition was carried forward into early pleas of guilty and all of that was to be reflected in a substantial discounting of the sentences ultimately to be imposed, as the learned sentencing Judge recognised: Trescuri v The Queen [1999] WASCA 172. On the other hand it remained necessary that the sentences should reflect the court's view of the seriousness of the offences, and they were of the utmost gravity, doing immeasurable and probably permanent harm to the complainant, causing recurrent episodes of serious depression and causing her to attempt suicide on more than one occasion.
So far as the respondent himself is concerned, he had what the learned sentencing Judge described as a "dreadful upbringing". The broad elements of that were before his Honour and they reveal a childhood and youth of substantial deprivation, foster placements, sexual abuse by the respondent's own father and others, and treatment well calculated to brutalise and cause serious psychological harm to the respondent, making it difficult for him to empathise with others. However, it should be noted that the respondent was aged nearly 54 years when he came before the learned sentencing Judge and, despite his dreadful background, he had no previous convictions whatsoever.

His Honour had available to him a number of pre‑sentence reports; one by a Community Corrections officer, one by a psychiatrist and two by psychologists, one of which was commissioned by the solicitors for the respondent and upon which the learned sentencing Judge placed considerable reliance. The report of the psychiatrist, Dr Pullela, could not be relied upon because the respondent's history as set out in that report was completely different from that drawn from other sources upon which the learned sentencing Judge based his findings. There appears to be no satisfactory explanation for the completely different accounts of the respondent's history, all of which are said to have come from him.
However that may be, the reports did tend to confirm that the respondent gave as the reason for the commission of the offences that he was involved in a loveless marriage. As has been seen, that was the reason he gave his daughter. That may explain, but it does not excuse, the offences. In addition, the respondent's wish to receive the love of his family seems to have been linked to his decision ultimately to confess the crimes to the police. He told them that he was cut off from contact, not only with his daughter, but with her children. He was depressed and overcome by guilt to the extent that his sleep was disturbed.
The psychologist attached to the Sex Offender Treatment Unit of the Ministry of Justice did not carry out a programme of psychometric testing because the respondent told her that such tests had been performed by another psychologist. Her observation, however, was that the respondent "probably functions within the low average range of intellectual functioning." Nonetheless she thought that the respondent was "able to fully understand the seriousness of his behaviour, although during interview he adopted a minimising and justifying stance." She expressed concern about the risk of re‑offending, particularly against children.
The psychologist engaged by the defence, Dr Watts, did carry out tests from which he concluded that the respondent's overall intellectual ability would be classified as "mild intellectual retardation". Again, he noted that the respondent seemed to have a confused understanding of the significance of his offending. He reported, "He could tell me that it was wrong to have sex with his daughter, but he could not understand why there was a fuss, because she wanted to do it too. He said that he never forced her, threatened her, or blackmailed her into doing it." Dr Watt thought that this distorted reasoning process made it unlikely that he would ever fully comprehend the damage he had done and the impact of his behaviour upon his daughter. As to the risk of future offending, Dr Watt said, "The inability to perceive the severity of his actions unfortunately means that risk cannot be fully eliminated, as without insight there is no need to change behaviour."
The learned sentencing Judge had regard to what he described as the respondent's low intellect among the matters of mitigation to which his Honour referred. Of course an intellectual deficit of this kind may properly mitigate punishment where it can be seen to reduce the moral culpability of the offender, as opposed to his criminal responsibility, but of course if that is to be the case there must be some causal relationship between the offending and the intellectual deficit, at least in the sense that as a result of the intellectual deficit the offender was not inhibited from committing the offence or offences in question. On the other hand, as the authorities also make clear, if it should be the case that the intellectual deficit may increase the likelihood of re‑offending, the intractability of the offender may prevent any reduction of what would otherwise be an appropriately proportionate sentence having regard to the criminality involved. I discussed a number of the principal authorities for those propositions in R v Halliday, unreported; CCA SCt of WA; Library No 980143; 3 April 1998 at 11 ‑ 14 in reasons with which Franklyn and Anderson JJ agreed.
This, I think, was a case where it was suggested that by reason of the respondent's intellectual deficit his moral culpability was reduced. He did not understand why it was so wrong to do what he did, so it is said, but in truth, as it seems to me, when one considers the psychologists' reports, there was little to support the proposition that the respondent's moral culpability was significantly lessened. Neither expert had any doubt that the respondent appreciated the wrongness of his conduct. In truth, it seems to me, his limited intellectual capacity enabled him to persist in a process of denial of responsibility and self‑justification in the belief that it would be accepted by others when, in truth, the justification he offered for his offending was simply unacceptable. In those circumstances, it seems to me that if there was any mitigation to be found in the respondent's personal circumstances, it was of a very limited character, only to be achieved by means of placing less weight than might ordinarily have been the case upon considerations of general and personal deterrence: cf R v Dalgety [2000] WASCA 10 (3 February 2000) per Kennedy J with whom Wallwork and Murray JJ agreed at [19] ‑ [22].
In the end this remained a case where the seriousness of the offending required appropriate recognition by the court and where matters advanced in mitigation could only be accorded reduced weight: Woods v The Queen (1994) 14 WAR 341. In that case Anderson J, with whom Malcolm CJ and Seaman J agreed, said at 54:
"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 or threats have been employed. In some cases … all of those features are involved and these will generally attract very heavy sentences."
Here, as I have indicated, in my view the substantial mitigatory factor was the remorseful confession to the police and early pleas of guilty to which the respondent finally came. His personal circumstances were much less mitigatory, although of significance in that regard was the complete lack of previous convictions. Otherwise, the case was one where the offending was of a serious and repetitive kind over many years, committed against a vulnerable child during her teenage years, having the capacity to completely distort the proper development of the victim's own sexuality and which did, in fact, have a devastating effect upon the complainant's life and well being. Whilst there were no particularly violent features of the sexual acts committed, there was threatening behaviour and one instance of violence to persuade the complainant to keep the matter secret. The respondent was reported to be fully aware of the wrongness of his behaviour, but to have the capacity to indulge in specious self‑justification. He lacked empathy for his daughter and gave attention only to his own interests and need for affection, obtained by means of the complete violation of the relationship of trust and dependence which existed between him and his daughter.
In those circumstances I am driven to the conclusion that the exercise of discretion by the learned sentencing Judge miscarried. Concurrent sentences of 7 years imprisonment for the six offences of penile penetration and a concurrent sentence of 3 years imprisonment for the offence of indecently dealing with his daughter (an act of fellatio) were in my respectful opinion manifestly inadequate.
Having regard to the principles involved in the determination of Crown appeals to which I have referred, I would conclude that an aggregate term of imprisonment of at least 10 years was required. I would allow the appeal and vary the sentences imposed by ordering the sentences of 7 years imprisonment to be served concurrently with each other but cumulatively upon the sentence of 3 years imprisonment, thereby achieving an aggregate term of 10 years. I would not, of course, interfere with the orders of eligibility for parole and that the sentences should commence to be served on 16 June 1999.