R v "G" - [2001] WASCA 160

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : COURT OF CRIMINAL APPEAL

CITATION: R -v- "G" [2001] WASCA 160

CORAM: WALLWORK J
MURRAY J
ANDERSON J

HEARD: 18 APRIL 2001

DELIVERED : 23 MAY 2001

FILE NO/S: CCA 283 of 2000

BETWEEN: THE QUEEN
Appellant
AND
"G"
Respondent

Catchwords:

Criminal law - Sentencing - Crown appeal - Discretion of sentencing Judge - Sexual offences by mother of victim - Father committed more offences - Received heavier penalty - Disclosure of offences resulted from mother's attempt to protect children - Mother's capacity grossly diminished

Legislation:

Nil

Result:

Appeal dismissed

Representation:

Counsel:

Appellant: Mr D Dempster
Respondent: Mr R D Young

Solicitors:

Appellant: State Director of Public Prosecutions
Respondent: Gunning

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

Lowndes v The Queen (1999) 195 CLR 665
R v GP (1997) 18 WAR 196
R v Grein [1989] WAR 178
R v Osenkowski (1982) 30 SASR 212

Case(s) also cited:

Podirsky (1989) 43 A Crim R 404
R v CW [2000] 111 A Crim R 287
Woods v R (1995) 14 WAR 341

WALLWORK J: On 27 October 2000 in the District Court the respondent was convicted after a trial of three offences of a sexual nature against her daughter. On 8 December she was sentenced to an effective term of 6 years' imprisonment being comprised of 1 year's imprisonment for an offence of indecently dealing with the child when she was under the age of 16 years, a term of 3 years' imprisonment for sexually penetrating the child while she was under the age of 16 years and a term of 6 years' imprisonment for sexually penetrating the child by inserting an object into her vagina. The first two sentences were ordered to be served at the same time as the 6 year sentence with all the sentences to commence from 27 October 2000 when the applicant had been taken into custody after her conviction. The applicant was made eligible for parole.
The Crown now appeals against the sentences on the basis that they were manifestly inadequate and failed to reflect sufficiently the serious nature of the offences. The Crown also contends that the sentence of 3 years' imprisonment for the second offence was inconsistent with the sentence of 7 years' imprisonment which was imposed upon the respondent's husband for the same offence at the same time. The husband was a joint offender with respect to that offence.
The essential basis of the Crown appeal is that at the time of the offences the child was only 8 or 9 years of age and that the offences involved an exploitation and corruption of the child by both the respondent who was the child's mother and her co‑offender, who was the child's father. The child's father, who was convicted of offences involving two indecent dealings against the child and four sexual penetrations, was sentenced to a total effective term of 13 years' imprisonment.
It is apparent from the learned Judge's sentencing remarks that the respondent had brought the matters to light when she became concerned for the welfare of the children after their father had taken them to South Australia. It was in the course of proceedings in the Family Court that the respondent deposed that her husband had sexually abused the complainant from a young age, commencing when she was only a matter of months old.
The complainant's father had a history of offences of dishonesty, assault and numerous drug related offences, dating back to 1988. The learned Judge considered that the father of the child had an anti‑social personality disorder and problems with both alcohol and other illicit hard drugs. He said that the father's conduct had amounted to an absolute breach of parental trust and responsibility. He said:
"You are a predator of the worst kind. You manipulated your family. You exercised a total domination over your daughter. You warned her against telling anyone what you were doing; all of this in order to achieve your own sexual gratification … you corrupted your daughter at a young age. The nature of the offending progressed along a path of steadily worsening abuse from initial rubbing of the vagina through to full penile penetration. No remorse has been indicated."
It is against that background that, in my view, the appeal in this case should be considered.
The offence of indecent dealing committed by the respondent carried a maximum penalty of 10 years' imprisonment and the other two offences involving sexual penetration carried a maximum of 20 years' imprisonment.
The learned trial Judge in his sentencing remarks said that the first of the offences in the indictment occurred when the child was approximately 8 years of age and the offences continued until she was about 10 years of age. The first offence in the indictment was committed by the child's father when he rubbed the child on the vagina with two fingers. The second count which involved the respondent was that she and her husband had sexual intercourse within the view of the child. It was alleged that the male offender had called the child into the bedroom.
The third count on the indictment was that of the father inserting his penis into the child's vagina. It was alleged that the respondent was present on that occasion and was alleged to have said to the child "Pretend I'm not here". The respondent adamantly denied that in her evidence. The fourth count was that the respondent sexually penetrated the child by inserting an object into her vagina when the co‑offender was at work. The fifth count was that the father inserted the same object into the child's vagina. On that occasion, he told her not to tell her mother.
Later, after the couple had separated, the father sexually penetrated the child by inserting his finger into her vagina. That was count 6 on the indictment. Again he told her not to tell anyone. The final count on the indictment was that the father inserted his penis into the child's vagina.
It was following that last offence that the father took the children by train to South Australia without the knowledge of the respondent. Being concerned for the children, the respondent commenced Family Court proceedings in the an endeavour to compel the return of the children from South Australia. It was in the course of those proceedings that the relevant offences were disclosed.
The learned trial Judge came to the conclusion that the use of illicit drugs and abuse of alcohol might account for the respondent's inability to recall relevant events which his Honour accepted had occurred. When he sentenced the respondent, the Judge had the advantage of psychiatric and psychologist reports. The respondent was then 30 years of age. The reports indicated that her own childhood had involved her being sexually abused from a young age, until she was 13 or 14 years of age. She had married the co‑offender after she had become pregnant at 17 years of age. She had never been in employment outside the home environment. She had claimed she was powerless to prevent her husband from interfering with the child. She gave evidence that she had been physically and sexually abused by her husband. She claimed that she was not able to remove herself or the two children from the situation by reason of the threats which her husband had made to her. She claimed that her husband had controlled and manipulated her as he did the young children. She did admit to having resorted to the consumption of alcohol and illicit drugs, allegedly to cope with the problems within the relationship.
The learned trial Judge said:
"You were, however, in a dysfunctional relationship fraught with domestic violence and did nothing about it at that time. You have for some time and continue to be receiving medical treatment for depression for which you were taking anti‑depressant medication. A pre‑sentence report indicates that in the last two years since your separation from your husband you have stabilised your lifestyle, including moderation of your alcohol and drug abuse. Your two children are in the care of Family and Children's Services, something for which as you said in your evidence to the jury, you were grateful for."
The learned trial Judge also said:
"It is apparent from your evidence and from the reports which I have received that there has been great emotional stress for you throughout your married life and through to the hearing of these charges. … The psychologist's report indicates that there has been significant disruption to your emotional development and that overall your personality structure reflects a passive‑avoidant style of relating to your world. That is consistent with the fact that you took no steps to prevent the abuse of your daughter. It is considered that you require intensive psychological treatment to address your own issues of abuse and your own perpetration of abuse and neglect. Your offending and your own experience of sexual abuse are regarded as being inextricably linked. The testing indicates that you are at a low risk of re‑offending."
The learned Judge noted that the respondent had no prior history of offending in any way. He said that when she had offended she had acquiesced in her husband's conduct. He said that the jury had been satisfied that she was not simply a passive observer but that she had positively offended. He said:
"The sentences which I impose now are not reflective of the general abhorrence which might be ascribed to the overall conduct of you and your husband in respect of your daughter. I make it clear that I am only sentencing you for the offences of which you have been convicted."
At the hearing of this appeal, counsel for the Crown made the point that the child at the relevant time had been vulnerable and physically immature. The offending had not occurred on one occasion only. It was submitted that the dominant sentencing considerations for such offending were issues of general deterrence and personal deterrence. It was pointed out that the co‑offender had been sentenced to an effective term of 13 years' imprisonment and that even though he had committed more offences than the respondent, there was an obvious disparity when he had been sentenced to 7 years' imprisonment with respect to count 3, for which the respondent had been sentenced to a term of 3 years' imprisonment. That was the occasion on which the respondent had allegedly watched while he had inserted his penis into the child's vagina. It was submitted for the Crown that:
"… respectfully the approach which his Honour, we feel, must have taken on sentencing is that the respondent was compelled. She was something of a passenger. She was coerced. She was a bystander, if one likes a passive participant, but the verdicts are different. The verdicts reflect an active participation, particularly in count 4, for example, which is an act of penetration by the respondent on her own."
It was contended that the learned Judge had erred when he had said:
"The sentences which I impose now are not reflective of the general abhorrence which might be ascribed to the overall conduct of you and your husband in respect of your daughter. I make it clear that I am only sentencing you for the offences of which you have been convicted."
It was submitted for the Crown that there had been no suggestion that the respondent did not know right from wrong, or that she had been suffering from some illness which would have rendered her less culpable in that sense. However, one of the psychiatrist's reports which his Honour had before him said:
"[G's] childhood and marriage have had a profound effect on her functioning. Her presentation is characteristic of what is described of persons who are victims of long term abuse. She described herself as being terrified during her marriage, of being very much under the sway of her former husband. Her capacity to act autonomously and appropriately under those circumstances would have been grossly diminished, particularly given her history and lack of appropriate social supports. In other words, she was effectively under the total control of her husband and did what he told her to do, bearing the consequences of non‑compliance and not having the emotional resources to be able to leave. [G's] history is distressing, the product not only of a grossly abusive marriage but also a deprived and abusive childhood. She has little insight into her functioning and in my opinion has a need for long‑term supervision and intensive psychotherapy."
Counsel for the Crown said it was not contended that the psychiatrist's report should not be accepted. "It was clearly accepted. There was no objection to it." However, it was submitted that even accepting that, the seriousness of the offending had resulted in an inadequate prison term.
In answer to the propositions for the Crown, it was submitted for the respondent (amongst other things) that she had given evidence that she had been threatened with a gun on occasions and had been subjected to acts of humiliation and degradation and physical violence, resulting in her going to hospital on occasions. It was submitted that the victim had given evidence that she had witnessed her mother being physically abused by the co‑offender and that she was of the opinion that the respondent had been scared of the co‑offender. It was pointed out that the first offence of which the respondent had been convicted had involved the husband calling the child into the room for the purpose of witnessing an act of sexual intercourse and that the second offence committed by her, being count 3, had involved the husband having sexual intercourse with the child while the respondent stood by and allegedly said "Pretend I'm not here". It was said that in both those cases the respondent's involvement had been at the lower level for the particular offence.
With respect to the alleged lack of parity between the effective 13 year sentence for the co‑offender and the 6 year sentence of the respondent, it was submitted that the co‑offender's record had revealed a history of offending whereas the respondent had had no history whatsoever. Further, the co‑offender had been convicted of more offences and more serious offences.
Further, the co‑offender had continued to abuse the child after the respondent had taken the children away from the marriage. Also, the offences had come to light because of the actions of the respondent who had been concerned that further offences would be committed against the children in South Australia.
A psychologist's report dated 23 November 2000, which was before the learned sentencing Judge, refers to the fact that the respondent had apparently reported her estranged husband's sexually abusive behaviour to ensure that the children were returned to Western Australia for their protection and that the respondent had not minimised her role in the offending to that psychologist. The psychologist reported that "overall, the personality profile from testing suggested there has been significant disruption to this woman's emotional development and that overall her personality structure reflects a passive, avoidant style of relating to her world … her description of the offences suggested that she avoided confronting her husband about his sexual deviancy, despite knowing its effect on her daughter. The fact that she has never worked meant that she is likely to have been very isolated and dependant upon her former husband and this may have contributed to feelings of powerlessness to change the situation."
In my view, it is significant that the sentencing Judge presided over the trial and was in a good position to observe both the offenders and to understand the facts. The respondent had shown concern for her children and had taken action in the Family Court to ensure their safety. The

co‑offender had initiated two of the three offences of which the respondent was convicted. The respondent had removed the children from the co‑offender's reach in 1995, although the co‑offender had later continued to offend when he came to Perth. There was also the fact of her "grossly diminished" capacity to act autonomously and appropriately in all the circumstances which was reported by a psychiatrist in a report dated 30 November 1999.

For my part, I cannot see any error in the approach taken by the sentencing Judge in this case.
In R v Grein [1989] WAR 178 Malcolm CJ (at 180) referred to the dicta of Brennan, Deane and Gallop JJ in R v Tait (1979) 46 FLR 386 at 387 ‑ 388, where their Honour's said:
"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 interest 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."
I would also refer to the remarks of Gleeson CJ, Gaudron, McHugh, Gummow, Kirby, Haine and Callaghan JJ in Lowndes v The Queen (1999) 195 CLR 665 at 672 where their Honours said:
"The discretion which the law commits to sentencing judges is of vital importance in the administration of our system of criminal justice."
Having regard to the two abovementioned decisions, even if the sentences in this case could be said to be lenient, I would dismiss the appeal.
MURRAY J: I have had the advantage in this case of reading in draft the judgment delivered by Wallwork J with which I am in general agreement, but I wish to add a few observations of my own.

This is a case I think which requires the appellate court to remind itself firmly of the approach to be taken to such an appeal as laid down in the authorities. I need do no more in that regard I think than to repeat my attempt to summarise the principles applicable in R v GP (1997) 18 WAR 196 at 231 where I referred to the "double jeopardy" element attendant upon an appeal against sentence by the Crown, having regard to which:
"It would be understood that this Court would deal with the appeal upon the basis that the freedom of the respondent was placed in jeopardy for a second time by the appeal, and therefore the Court would be most circumspect to ensure that it only upset the discretionary sentencing judgment of the court below in a clear case where … that result is required to correct a substantive error of principle of general application, so as to aid the consistency and certainty of the sentencing process and to avoid undue disparity."
Of course it is right to say that, as argued by the Crown in this case, such an error of principle may be revealed simply by the manifest inadequacy of the sentences the subject of the appeal and, for example, as is particularly argued in this case, if there is a substantial lack of consistency between the sentence under review and one imposed upon a co‑offender, a type of reverse disparity argument.
And yet, particularly in a case which depends, as does this, upon the proposition that error is revealed by the manifest inadequacy of the sentences imposed, I think it is apposite to recall the words of King CJ in R v Osenkowski (1982) 30 SASR 212 at 212‑213:
"It is important that prosecution appeals should not be allowed to circumscribe unduly the sentencing discretion of judges. There must always be a place for the exercise of mercy where a judge's sympathies are reasonably excited by the circumstances of the case. There must always be a place for the leniency which has traditionally been extended even to offenders with bad records when the judge forms the view, almost intuitively in the case of experienced judges, that leniency at that particular stage of the offender's life might lead to reform. The proper role for prosecution appeals, in my view, is to enable the courts to establish and maintain adequate standards of punishment for crime, to enable idiosyncratic views of individual judges as to particular crimes or types of crime to be corrected, and occasionally to correct a sentence which is so disproportionate to the seriousness of the crime as to shock the public conscience."

As Wallwork J has pointed out, the respondent's husband was convicted of six offences, two of indecently dealing with his daughter and four of sexually penetrating her. There were acts of penile penetration, penetration by finger and penetration by inserting a dildo in the child's vagina. The offences the subject of the indictment were representative of a course of conduct. They occurred over a period of 2 years when the child was probably 8 and 9 years old. She was their eldest child. The other child was also a daughter about a year younger. When the offences were committed the marriage was of about 8 years duration. The respondent was just short of her 18th birthday and pregnant when she and her husband were married.
The respondent's husband was found by the sentencing Judge to be very much the driving force in the offending behaviour. He had a criminal history, particularly of drug offences, but nothing of the order of seriousness of the offences of which he was convicted in the District Court after a trial by jury jointly with the respondent. The trial Judge described him as "a predator of the worst kind" who had manipulated his family, exercised total domination over the other members of the family and had been guilty of what his Honour described as "an absolute breach of parental trust and responsibility". For the two offences of indecent dealing he was sentenced to 2 years' imprisonment and 1 year's imprisonment respectively. For the acts of penile penetration of his daughter he was sentenced to 7 years' imprisonment and for penetrating her by dildo and finger, to 6 years' imprisonment. Two of those sentences were ordered to be served cumulatively, resulting in an aggregate term of 13 years' imprisonment with eligibility for parole.
The respondent was tried and convicted of three offences. One was indecent dealing jointly with her husband by having sexual intercourse with him within view of the child. Wallwork J has referred to the circumstances in which that occurred. The respondent's defence appears to have been that she was acting under the compulsion of her husband, presumably within the meaning of the Criminal Code, s 32, a defence which the jury obviously rejected. A concurrent sentence of 1 year's imprisonment was imposed upon her husband.
The respondent was convicted of an offence committed jointly with her husband of penile penetration of her daughter. This was the occasion, to which Wallwork J has again referred, when the respondent's husband had sexual intercourse with the child in her mother's presence and, as the jury must have found, aided by the respondent who encouraged her daughter's submission by telling her daughter to pretend that the respondent was not present. In that way she participated in perverted conduct of the worst kind. Again, her defence appears to have been that she was no more than a passive observer, having no power to remove herself from the room while the act was performed by reason of her husband's total domination of her. She denied making the above remark to the child. This was an offence for which the husband was sentenced to a term of 7 years' imprisonment.
Finally, the respondent was convicted of an offence committed on her own, indeed while her husband was away from home. She sexually penetrated the child by inserting a dildo into her vagina, an offence of the type for which the respondent's husband was sentenced to a term of 6 years' imprisonment. In her evidence given in her defence the respondent denied that any such incident occurred. Again, the jury clearly did not accept that that evidence might be true.
However, the trial Judge appears to have accepted that the respondent's denials of her implication in the offences of sexual penetration with which she was charged were not lies but that she genuinely had no recollection of the events. His Honour attributed that to the respondent's use of illicit drugs and abuse of alcohol at that time. In this appeal the Crown does not challenge that view of the facts. His Honour was the trial Judge who had the advantage of seeing and hearing the evidence given and this Court must accept that those conclusions were fairly open to his Honour.
In sentencing the appellant, as Wallwork J has observed, the trial Judge accepted that the sentences he proposed to impose would not reflect the general abhorrence in which offending behaviour of this kind is held in the community. His Honour imposed a sentence of 1 year's imprisonment for the offence of indecent dealing, the same as that imposed upon the respondent's husband. He imposed a sentence of 6 years' imprisonment for the offence of penetration of the child by the dildo, again a sentence of the same length as that imposed upon her husband for an offence of the same kind. But for the offence of aiding in the way described, the penile penetration of the child by the husband, his Honour imposed a sentence of 3 years' imprisonment in lieu of the 7 years imposed on the husband. He did not say specifically with respect to that sentence why he took that course. All the sentences imposed were to be served concurrently and so the aggregate term was one of 6 years' imprisonment with eligibility for parole.
In my opinion, with respect to the offence for which the respondent was sentenced to 3 years' imprisonment, there are clear differences between the conduct of the respondent and that of her husband. She did not initiate what occurred, but she acquiesced in it and apparently assisted to overcome her daughter's disquiet that such a thing should take place in the presence of her mother by making the remark in question. Those facts would in my view justify some disparity in the sentencing disposition but of course it may be arguable whether that would justify a sentence of less than half the severity of that imposed upon the co‑offender.
However, the matter does not end there, as Wallwork J has explained. The respondent herself had been the victim of abusive behaviour throughout her childhood. Having no experience of the world, at a young age she fell pregnant and was married to her husband. It was accepted that she then came under his total domination and, for what were reported to the sentencing court to be good psychological reasons, her capacity to prevent her husband's behaviour or to remove herself and the children from him was, as the reporting psychiatrist put it, "grossly diminished" although obviously not to the point of interfering with her criminal responsibility. It was said of her that she was terrified of her husband, and indeed her daughter, the complainant, in her evidence at the trial confirmed that that was so, apparently with good reason, having regard to her husband's violent behaviour towards her and the children.
Ultimately she did gather the strength and resources to leave and take the children with her. That, however, did not end the behaviour of her husband who sought opportunities to continue to offend against the complainant for some years. Finally, when her husband took the complainant and the other child to Adelaide, in fear of what might happen to the children, the respondent reported to the authorities not only her husband's abduction of the children, but what had been occurring in the way of offences committed against them. At trial she gave evidence which, although it was evidence in her own defence, implicated her husband and so was evidence given against him.
The respondent has no criminal history. The reports made to the Court about her were those of a psychiatrist, a psychologist and a community corrections officer. They establish that, sadly, the two children had been placed in the care of the appropriate Government agency. But despite that having occurred and in the period since the respondent's separation from her husband, she had, the trial Judge found, stabilised her lifestyle, moderated her alcohol and drug abuse and undergone treatment for depression and psychological disorder. The pre‑sentence report suggested that, although the respondent continued to deny being an active participant in the offences committed by her husband, sufficient progress had been made with her that she could be effectively managed in the community or, if imprisonment was to be imposed, on parole. The trial Judge accepted that there was a low risk only that she might re‑offend.
In the particular circumstances of this case, I do not think that it is right to say that there is a lack of remorse on the part of the respondent, despite her continued denials that she was an active participant, given the finding of the trial Judge about her degree of recollection. Nonetheless, the reports make it clear that the respondent is accepting responsibility for exposing her daughter to the abuse which occurred and for failing to end it long before she ultimately did. She has expressed immense relief that the children are now in safe hands and that their upbringing may be a normal one, albeit not with her.
Apart from that it is clearly right, as the Crown argues, that in cases of intra‑familial sexual offending of this kind and seriousness, the reaction of the court is normally that its abhorrence of the offending and the seriousness of such cases must be marked by condign punishment. That is required not only for the purpose of punishing the offender but for the purpose, if required, of deterring him or her from further offending. In any event, such a response by the court will be thought to be required for the purpose of deterring persons generally from the commission of such offences and in that way it is hoped that a degree of protection may be secured for the generally helpless victims of such crimes. In such circumstances it is often observed that mitigatory circumstances will generally carry little weight.
And yet such cases are not, in my opinion, to be quarantined from the sort of response to which King CJ referred in Osenkowski. The sentencing judgment remains a discretionary judgment, perhaps of the most difficult kind, and the court retains its capacity to ameliorate its response where that may be seen to be the approach best calculated to prevent further offending and aid the reformation of the offender. There appear to be grounds to support the view of the sentencing Judge, in effect, that this was such a case.

I think the sentences imposed upon the respondent were lenient, but in the context of a Crown appeal I find myself unable to conclude that they were so disproportionate to the response required of the sentencing court as to compel this Court to interfere. I would dismiss the appeal.
ANDERSON J: I have had the advantage of reading in draft the reasons for judgment of Wallwork J and Murray J in which they conclude that the appeal should be dismissed. I am also of the opinion that the appeal should be dismissed for the reasons given in the judgments referred to.