R v EPR - [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

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."
This passage is taken from the judgment of the Victorian Full Court in R v Williscroft & Ors [1975] VR 292 at 300.
Sometimes, however, expressions of community concern in the media can be based on a misunderstanding of the true facts; or on a view of the facts which is markedly different from the facts which the Judge must accept because of the way the case is presented in court.
For this reason, it is not generally helpful to tell the Court that an appeal has been brought because of public disquiet about the sentence. The sentence is either within the right parameters or it is not. That question must be answered by reference to all of the various considerations that go to make up the purposes of punishment, including those stated by Sir John Barry.
One of the vital ingredients amongst the range of factors that go to make up a judgment on sentence is a proper understanding of what the offender actually did, the circumstances in which he did it and, in sexual cases, how that has affected the complainant physically and emotionally.
The complainant gave a deposition in which she stated that there were many other sexual encounters between herself and her father in addition to those the subject of the seven counts on the indictment. Her deposition contains the following statement:
"Between the ages of 11 and 12 dad did many more things to me. He did sexual things to me. I don't remember the exact details or times but I know he did things like masturbating in front of me and putting his penis inside of me."
The complainant made her first disclosure to her mother in 1996, but this disclosure was only partial. She told her mother only that "dad was masturbating in front of me. I told her I was frightened of him". The mother confronted the respondent, and the day after the disclosure the respondent apologised to the complainant saying, "the devil made me do it". He did not molest her again and has not done so since.
The matter seems to have come to the attention of the authorities in mid‑2000 in a manner that, to the criminal courts is, sadly, all too familiar. The complainant's deposition, which is dated 1 September 2000, contains the following account of how and why it came out into the open:
"I haven't told anyone what has happened since then except my boyfriend …
I told [him] dad had raped me. I told him this a few weeks ago.
[He] has been very supportive of me.
I then told a teacher Mrs G that I had been raped by my dad. I told her at school about two weeks ago.
I wanted to tell someone because I couldn't take it any more. I am having nightmares and flashbacks. It has been interfering with my studies at school.
The reason I am telling the police is I want my dad to get help."
The respondent was interviewed by police on 1 September 2000 and confessed he had sexually assaulted his daughter "about five years ago". The interview was videotaped and a transcript of it is included in the appeal book. It is plain that the respondent was remorseful, but it must be said that he appeared reluctant to fully acknowledge the extent and frequency of his conduct. He at first denied that he had ever sexually penetrated the complainant. When pressed as to whether the incident of sexual penetration charged in count 2 had occurred, he at first denied it, saying he was, "just lying on top of her like playing" and that "it was with clothes on".
As the full details of the complainant's allegations continued to be put to him, his denials became less and less complete. His initial insistence that he had never penetrated the complainant eventually became a denial of "full penetration".
At the time of the offending, the complainant was only 11 and at an extremely vulnerable age in her progress towards puberty and womanhood. The respondent was her natural father and the dominant member of the household in a position to exercise complete control over her. The totality of the offending occurred over some 15 or 18 months. On the depositional evidence of the complainant the specific acts charged in the counts are representative of a persistent course of conduct during that period in gross breach of trust. On her deposition, the conduct included multiple acts of penile penetration. From the complainant's deposition dealing with the circumstances under which she came to make her disclosures to her school teacher some four years after the conduct ceased and her express reasons for making that disclosure, it can safely be inferred that the respondent's conduct caused serious emotional and psychological injury to the complainant.
The seriousness with which the community regards this kind of offending is reflected in the maximum penalties imposed in the Criminal Code. At the time when the offences were committed, for each of the offences of indecent dealing with a lineal relative, the maximum penalty was 10 years' imprisonment. For each of the offences of sexual penetration, the maximum penalty was 20 years' imprisonment. Whilst one of the offences of indecent dealing and two of the offences of sexual penetration by fellatio occurred in the same encounter, the offences were otherwise quite separate with respect to which cumulative sentences would have been appropriate. After allowing for concurrency with respect to the three offences mentioned, the respondent was facing a maximum aggregate term of some 70 years' imprisonment. Of course, such a sentence would never have been imposed if only due to the requirement to apply the totality principle. It is mentioned only to attempt to give some practical dimension to the enormity of the conduct with which the sentencing court was required to deal.
Prima facie, it was not a case in which anything other than a sentence of immediate imprisonment was appropriate. This is for all of the reasons that have so often been stated by this Court regarding offending of this type. As Anderson J said in Trescuri v The Queen [1999] WASCA 172 at par 21:
"Cases of intra-family sexual assaults on young children generally attract heavy sentences. The reasons for this have been stated in this Court many times. Sexual assaults by an adult upon young children within the family environment involving the taking advantage of a position of trust and authority is very serious and the law demands the protection of young children from it. The dominant sentencing considerations are punishment and general and personal deterrence, as well as retribution for the victims who are invariably grossly traumatised. The maximum penalties, to which reference has already been made, disclose a broad policy decision by the legislature which the courts are bound to give effect to - R v Wozencroft, unreported; CCA SCt of WA; Library No 6606; 25 February 1987; Johnston v R, unreported; CCA SCt of WA; Library No 960153; 22 March 1996."
Reference may also be made to the report of the Wolfenden Committee on Homosexual Offences and Prostitution (Cmnd 247 (1957)) in which the function of the criminal law in the field of sexual offences was defined as follows:
"To preserve public order and decency, to protect the citizen from what is offensive and injurious and to provide sufficient safeguards against exploitation and corruption of others, particularly those who are specially vulnerable because they are young, weak in body or mind, inexperienced or in a state of special physical, official or economic dependence."
This reference is taken from the judgment of the Court of Appeal Criminal Division in Attorney‑General's Reference (No 1 of 1989) [1989] 3 All ER 571 per Lord Lane CJ, Rose J and Sir Bernard Caulfield at 573.
As we understand the sentencing remarks of the learned sentencing Judge, he was led to impose what on any view is a most lenient sentence by certain particular matters. In the first place, concerning the act of penile vaginal penetration charged in count 2, he expressed his finding of fact in the following terms:
" … having considered the matter, I accept that there was a partial penetration only and not a full penetration."
This finding is entirely at odds with the complainant's deposition in which she describes the incident as follows:
"Dad then put his penis inside my vagina. I could feel him inside me. He started to have sex with me. He pulled his penis half out of my vagina and then pushed it back in again. By the third time he did this it became very painful. My vagina started to really hurt.
At first he was pushing inside me fast. I didn't say anything, I was frozen. I groaned in pain and he slowed down.
After about 10 - 15 minutes he stopped and pulled his penis outside of me. I'm not sure how long he did this for but it felt that long.
I felt him get off me completely and I felt the jeans move from my legs. Dad said, 'Ok pull your pants back up and go inside.'
…
I felt my knickers were wet so I felt myself. There was blood on my fingers. I thought I had got my period for the first time.
…
I bled for two days. I know now it wasn't my period because I got it in the beginning of year 8."
What is here described (some of which we have deliberately omitted) is a prolonged act of full sexual intercourse by a father with his 11‑year‑old child in which he took away her virginity, leaving her to cope with the physical consequences as best she could.
Seen in that light, this offence was a serious offence of its kind and, bearing in mind the maximum penalty of 20 years' imprisonment, it was an offence which, on its own, called for condign punishment involving an immediate term of imprisonment.
On the other hand, if the facts were not those related in the deposition and there was only a single, brief and partial penetration of the vagina involving only the labia majora a sentence of immediate imprisonment might not be called for, depending upon all of the other circumstances of the case.
And so the question of what actually happened was of the utmost importance.
The material facts of the case were required to be stated aloud to the court by the Crown: Criminal Code s 617A. In this case, all that was said by the prosecutor in relation to the act of penetration itself was:
"The offender then removed the complainant's pyjama pants and underwear. He removed his jeans to his ankles and positioned himself, lying on top of the complainant. The offender then put his penis into the complainant's vagina."
Nothing more was said. On its own, it is plainly inadequate to inform the sentencing court of the criminality involved in this particular act of sexual penetration. However, the tendering of the depositions meant that the material contained within them was incorporated into the statement of material facts. The depositions therefore became part of the factual material which could be acted on for sentencing purposes: R v Aloia [1983] WAR 133; Langridge v The Queen (1996) 17 WAR 346 per Murray J at 382.
From this it followed that the complainant's detailed account of the incident could be acted upon by the sentencing court. Without more, it most certainly should have been acted upon by the sentencing court. However, during the course of his submissions on behalf of the respondent, counsel for the respondent made the following exculpatory statement:
"With respect to count 2 on the indictment - and that's an incident which my learned friend described as having occurred on a blanket outside the house on a pile of sand and that incident can be seen at page 7 of the deposition - my client accepts that there was penetration of the labia majora but not deep penetration of the vagina proper.
That matter is canvassed in the videotaped record of interview and, in my respectful submission, it doesn't take the matter very far but it is a discrepancy in the facts as between the complainant and my client."
No issue was taken by the prosecutor with this exculpatory statement.
The level of criminality involved in the description of the respondent's conduct in the complainant's deposition is a world apart from that which is conveyed by the limited admission made on behalf of the respondent by his counsel and in his video interview. Speaking generally, when a statement is made from the bar table which tends to mitigate the offence and it is not challenged by the Crown, it may be accepted by the trial Judge. The Judge is not bound to accept assertions made by counsel on behalf of an offender, but he or she is entitled to do so and if the prosecution wishes to controvert any such statement, the prosecution should say so and, if necessary, call evidence: R v Olbrich (1999) 199 CLR 270 at 281. If it was the view of the Crown that the case should be disposed of on the basis of the facts in the depositions, the prosecutor should have made it clear to the court that the Crown did not accept the mitigatory statements made on behalf of the respondent and, if necessary, the prosecutor should have called evidence. The prosecutor made no protest and, as things stood, it was open to the sentencing Judge to treat this as a case of a single partial penetration involving only the labia majora and not an act of full intercourse involving loss of virginity, which he did. The Crown is not now in a position to contend that he should not have done so, however unlikely it may seem to this Court that the complainant's deposition is untrue. It seems to us we are bound to approach the determination of this appeal on the basis that, as to count 2, there was not an act of full penetration, but partial penetration involving only the labia majora.
The second matter which seems to have influenced his Honour was the view which he appears to have taken of the effect which the respondent's offending had on the family unit and on the complainant, in particular. He seems to have got the impression that, bad though these events were, they had all passed into history; that the family unit was undamaged and intact and that everyone had long since returned to living a normal life. What his Honour said was:
"The offending came to an end in 1996 because your daughter made a complaint to your wife about what you had been doing. Your wife confronted you about it and you admitted that you had been guilty of sexual wrongdoing towards your daughter. Now, obviously, the revelation of what had occurred required some adjustment within the family. However, you promised your wife that you wouldn't do it again. Your wife accepted that promise, then she and the complainant consequently forgave you for the offences. Thereafter, through until last year, you and your family lived a normal family life."
With great respect, these remarks reflect a mistaken view not only of the severity of the conduct engaged in by the respondent, but also of its consequences.

Even on the favourable view of the facts which was taken with respect to the charge of sexual penetration, the phrase "sexual wrongdoing" in the context of the Judge's remarks as a whole is not apt to describe the grave crimes committed by the respondent. Whilst it does seem to be true that the respondent's wife forgave him (although how much she knew is in question), we think that to say that the complainant forgave him is only true in a very limited sense. The depositional evidence most certainly does not show that the complainant "thereafter … lived a normal family life". There is no need to do more than refer to the complainant's deposition concerning the circumstances under which the disclosures were made to the complainant's school teacher four years after the last act; and to the unchallenged and uncontradicted reasons which, according to her depositional evidence, compelled the complainant to make those disclosures. We have set out that part of the deposition earlier in this judgment. The inescapable inference that is to be drawn from that material is that the respondent's behaviour has significantly harmed the complainant - that the complainant was profoundly affected by what had happened to her and wanted support. There is not really any other explanation for why, after four years, the complainant would tell her teacher "that I had been raped by my dad". Her depositional evidence that she made this report "because I couldn't take it any more", and because it was "interfering with my studies at school" and because "I was having nightmares and flashbacks" and because "I want my dad to get help" leaves no other conclusion open than that the disclosure was deliberately made to someone in authority outside the family as a cry for help. We do not suggest she wanted her father punished. But it is not, we do not think, a case of letting the cat out of the bag by accident after the whole affair had faded from significance in the mind of the complainant.
The final matter goes to the general family circumstances and the consideration, present in all cases such as these, of the harm that will be done to the family unit and to the financial wellbeing of the individual members of the family should a sentence of imprisonment be imposed. It is apparent that his Honour was greatly influenced by this; in our respectful opinion, unduly so. It is a relevant consideration, of course. However, it cannot be decisive. In this case, the family, that is, the respondent's wife and their four children, including the complainant who was the eldest, now 18, appear to be wholly dependent on the respondent. He is the bread winner. There seems to be no doubt that, at the personal level, they are devoted to him and he to them. To all outward appearances, this is a close, tight‑knit family unit and in one sense the family will suffer devastating consequences should the respondent be required to serve a term of imprisonment. It is obvious from the letter written by the complainant to the sentencing Judge that she was desperately concerned about that and did not want it to happen.
Unfortunately, it is the experience of the courts that this is often the case. It is not by any means an exceptional circumstance calling for a non‑custodial disposition in a case otherwise requiring a tariff sentence: cfHodder v The Queen (1995) 15 WAR 264. The emotion quite commonly expressed by children who have been sexually abused and who have disclosed the fact is that they are devastated by the trouble they have caused and irrationally blame themselves. It is the explanation for why offending of this kind so often does not come to light until long after the event when the child concerned has reached a stage of maturity and has become independent of the family unit. No‑one can know to what extent pleas for mercy by child victims reflect true forgiveness and the true state of affairs within the family.
So, although protection of the family unit and the appearance of forgiveness of the offender by the family are matters to be taken into account, they cannot dominate sentencing considerations.
In our opinion, non‑custodial sentences should not have been imposed. They were imposed because the learned sentencing Judge undervalued the nature and circumstances and gravity of these sexual offences and their effect on the complainant.
In that respect, the sentencing discretion miscarried. It is, however, a case in which a shorter than usual term of imprisonment was appropriate. Obviously, the most serious offence was that charged in count 2. For this offence, even on the favourable view of the facts accepted below and after having regard for the plea of guilty, contrition, good conduct in recent years and to the respondent's antecedents generally, a sentence of about 6 years would have been called for. Because the family has not been broken up and it will obviously be of benefit to the family and to the respondent for the sentence to be as short as possible and because of the very strong and, so far as can be judged, genuine pleas for leniency from the complainant and her mother, a shorter term than usual may be imposed. An additional discount is also warranted because this is a Crown appeal. It is the second time the respondent has had to suffer the prospect that he might be sent to prison.
We would quash the sentence of 5 years on count 2 and quash the order for suspension and instead impose a sentence of 4 years' imprisonment.
We would quash the order for suspension in respect to each of the other sentences. We would not interfere with the other sentences, nor with the order for eligibility for parole.