R v EPR

Case [2001] WASCA 214

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT  :   COURT OF CRIMINAL APPEAL

CITATION:   R -v- "EPR" [2001] WASCA 214

CORAM:   WALLWORK J

MURRAY J
ANDERSON J

HEARD:   18 APRIL 2001

DELIVERED          :   25 JULY 2001

FILE NO/S:   CCA 14 of 2001

BETWEEN:   THE QUEEN

Appellant

AND

"EPR"
Respondent

Catchwords:

Criminal law - Sexual offences - Lineal relative - Complainant the 11-year-old daughter of offender - Four counts of indecent dealing, three counts of sexual penetration - Forgiveness and remorse - Pleas of guilty - Aggregate sentence of 5 years suspended for 2 years - Crown appeal - Sentence manifestly inadequate - Aggregate sentence of 4 years' immediate imprisonment substituted

Legislation:

Criminal Code, s 617A

Result:

Appeal allowed

Representation:

Counsel:

Appellant:     Mr D Dempster

Respondent:     Mr R A Mazza

Solicitors:

Appellant:     State Director of Public Prosecutions

Respondent:     Mazza & Mazza

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

Attorney‑General's Reference (No 1 of 1989) [1989] 3 All ER 571

Hodder v The Queen (1995) 15 WAR 264

Langridge vThe Queen (1996) 17 WAR 346

R v Aloia [1983] WAR 133

R v Olbrich (1999) 199 CLR 270

R v Williscroft & Ors [1975] VR 292

Trescuri v The Queen [1999] WASCA 172

Case(s) also cited:

Dinsdale v The Queen [2000] HCA 54; (2000) 175 ALR 315

R v Boyd [1984] WAR 236

R v Grein [1989] WAR 178

  1. JUDGMENT OF THE COURT:  This is a Crown appeal against sentence.  The respondent came before Blaxell DCJ in the District Court on 18 January last on an indictment containing four counts of indecently dealing with a lineal relative and three counts of sexually penetrating the same lineal relative who was the respondent's daughter aged between 11 and 12 years. 

  2. The offences occurred in 1995 and 1996 and a brief account of them is as follows.  In August 1995, when the complainant was 11, the respondent called the complainant into his bedroom in the family home and masturbated in front of her to ejaculation.  In November 1995, when the complainant was still 11, the respondent took the complainant outside at night, undressed her and whilst lying on top of her placed his penis into her vagina.  We will come later to how far this act went.

  3. On an unspecified date in the same year, that is, 1995, whilst the complainant was still 11 years of age, the respondent got her into his bedroom, removed her clothing and kissed her vagina.  In January 1996, by which time the complainant was 12, the respondent got the complainant into his room, instructed her to lie on his bed, massaged her bare breasts, played with her nipples, instructed her to commit fellatio upon him (which she did for a time) and later forced her again to do so by pushing her mouth onto his penis demanding that she suck it, which she did until he told her she could stop.  On an unspecified date in 1996, when the complainant was still 12, he again masturbated…

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R v EPR [2001] WASCA 214
Case
[2001] WASCA 214
Decision Date

CaseChat Overview and Summary

The Crown appeals against the sentence of the District Court in which the respondent was convicted on seven counts of sexual offences against his 11-12 year old daughter. The respondent pleaded guilty to four counts of indecently dealing with a lineal relative and three counts of sexual penetration of a lineal relative. The District Court imposed sentences of imprisonment on each count, but suspended all sentences of imprisonment for two years. The Crown appeals against the decision to suspend the sentences of imprisonment. The court must consider whether the sentence imposed by the District Court is manifestly inadequate. The court noted that the offences were of a serious nature and that the community's concern about the adequacy of punishment for such crimes is a relevant consideration in the sentencing process. The court held that the sentence of the District Court was manifestly inadequate and substituted an aggregate sentence of four years' imprisonment. The court emphasised the importance of reflecting and corresponding with the community's generally accepted standards of what is fair and just in the imposition of punishment.

The court substituted an aggregate sentence of four years' imprisonment in place of the sentence of the District Court. The sentences were to run concurrently. The court ordered that the sentences were to commence immediately.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

MURRAY J
JUDGMENT OF THE COURT: This is a Crown appeal against sentence. The respondent came before Blaxell DCJ in the District Court on 18 January last on an indictment containing four counts of indecently dealing with a lineal relative and three counts of sexually penetrating the same lineal relative who was the respondent's daughter aged between 11 and 12 years. The offences occurred in 1995 and 1996 and a brief account of them is as follows. In August 1995, when the complainant was 11, the respondent called the complainant into his bedroom in the family home and masturbated in front of her to ejaculation. In November 1995, when the complainant was still 11, the respondent took the complainant outside at night, undressed her and whilst lying on top of her placed his penis into her vagina. We will come later to how far this act went. On an unspecified date in the same year, that is, 1995, whilst the complainant was still 11 years of age, the respondent got her into his bedroom, removed her clothing and kissed her vagina. In January 1996, by which time the complainant was 12, the respondent got the complainant into his room, instructed her to lie on his bed, massaged her bare breasts, played with her nipples, instructed her to commit fellatio upon him (which she did for a time) and later forced her again to do so by pushing her mouth onto his penis demanding that she suck it, which she did until he told her she could stop. On an unspecified date in 1996, when the complainant was still 12, he again masturbated in front of her. The sentences ranged from an intensive supervision order with respect to the first offence of indecent dealing up to a sentence of 5 years' imprisonment in respect of the offence of penile penetration of the vagina. In brief summary, the sentences were as follows:Count 1, indecent dealing (masturbation) - 2 years' intensive supervision.Count 2, penile penetration of the vagina - 5 years' imprisonment.Count 3, indecent dealing (kissing vagina) - 2 years' imprisonment.Count 4, indecent dealing (massaging breasts) - 2 years' imprisonment.Count 5, sexual penetration (fellatio) - 4 years' imprisonment.Count 6, sexual penetration (fellatio) - 4 years' imprisonment.Count 7, indecent dealing (masturbation) - 2 years' imprisonment. The learned sentencing Judge ordered all of the sentences of imprisonment to be suspended for 2 years. It is the suspension of the sentences about which the Crown complains. Counsel for the Director of Public Prosecutions commenced his submissions with the statement that the appeal was brought "following community concern" and that the Director of Public Prosecutions "seeks the authoritative guidance of this court as to the appropriateness of a non‑custodial disposition" in such a case. Community standards and the concerns of the community as to the adequacy of punishment administered by the courts to the people who offend those standards by criminal conduct are highly relevant considerations in the sentencing process. There are many authoritative pronouncements to this effect, but none more eloquent than those of Sir John Barry in his lectures on The Courts and Criminal Punishment (1969) in which he said:"It [the criminal law] must be operated within society as a going concern. To achieve even a minimal degree of effectiveness, it should avoid excessive subtleties and refinements. It must be administered publicly in such a fashion that its activities can be understood by ordinary citizens and regarded by them as conforming with the community's generally accepted standards of what is fair and just. Thus it is a fundamental requirement of a sound legal system that it should reflect and correspond with the sensible ideas about right and wrong of the society it controls, and this requirement has an important influence on the way in which the judges discharge the function of imposing punishments upon persons convicted of crime."

Ratio Decidendi

Legal Principle Established

Established by: MURRAY J

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