R v Hough
[2002] WASCA 42
•1 MARCH 2002
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : COURT OF CRIMINAL APPEAL
CITATION: R -v- HOUGH [2002] WASCA 42
CORAM: MALCOLM CJ
ANDERSON J
SCOTT J
HEARD: 22 FEBRUARY 2002
DELIVERED : 1 MARCH 2002
FILE NO/S: CCA 21 of 2002
BETWEEN: THE QUEEN
Appellant
AND
STEPHEN RAY HOUGH
Respondent
Catchwords:
Criminal law - Sentencing - Multiple offences by juvenile involving three different children - Further offences committed on two of the children when offender aged 18 and 19 - Sentenced by District Court Judge to several concurrent terms of imprisonment of 2 years suspended for 2 years together with an intensive supervision order for 2 years for remaining offences - Crown appeal against sentence - Sentences involved penile oral and anal penetration - Principles to be applied - Suspended sentences substituted by immediate sentence of imprisonment for a total of 8 years with eligibility for parole
Legislation:
Criminal Code, ch XXXI, s 319(1), s 320(2), (4)
Sentencing Act 1995, s 76
Young Offenders Act1994, s 46
Result:
Appeal allowed, sentences set aside and substituted by a total sentence of 8 years with eligibility for parole
Category: A
Representation:
Counsel:
Appellant: Mr R E Cock QC & Ms J A Girdham
Respondent: Mr T F Percy QC & Mr N J Mullany
Solicitors:
Appellant: State Director of Public Prosecutions
Respondent: Max Crispe
Case(s) referred to in judgment(s):
Broome v R [1999] WASCA 202
Byrne v The Queen (1998) 104 A Crim R 456
De Luce v The Queen, unreported; CCA SCt of WA; Library No 960375; 19 July 1996
Dick v The Queen (1994) 75 A Crim R 303
Dinsdale v The Queen (1999) 202 CLR 321
Ginder (1987) 23 A Crim R 1
Hinckley, unreported; CCA SCt of WA; Library No 7746; 21 July 1989
Hughes (1983) 10 A Crim R 125
Isaacs (1997) 90 A Crim R 587
Laposte v The Queen [1970] WAR 87
Liu (1989) 40 A Crim R 468
Longley v The Queen [2001] WASCA 71
Macey v The Queen, unreported; CCA SCt of WA; Library No 930298; 27 May 1993
Mordecai (1985) 18 A Crim R 149
O'Malley v French (1971) 2 SASR 110
Podirsky (1989) 43 A Crim R 404
Price (1988) 33 A Crim R 539
R v McDonald [2000] WASCA 336
R v N [1998] 2 NZLR 272
R v Patrick, unreported; CCA SCt of WA; Library No 980157; 6 April 1998
R v Stehbens (1976) 14 SASR 240
R v Wozencroft, unreported; CCA SCt of WA; Library No 6606; 25 February 1987
Ryan v The Queen [2001] HCA 21; (2001) 75 ALJR 815
Sandford (1994) 72 A Crim R 160
Woods v The Queen (1995) 14 WAR 341
Case(s) also cited:
AB v The Crown (1999) 198 CLR 111
Astill v The Queen (No 2) (1992) 64 A Crim R 289
Byrne v R (1998) 104 A Crim R 456
Dick v R (1994) 75 A Crim R 303
Dinsdale v R (2000) 202 CLR 321
House v R (1936) 55 CLR 499
Indich v R [1999] WASCA 146
James v R [2000] WASCA 100
Leggett v R [2000] WASCA 327
Little v R [2000] WASCA 87
Longley v R [2001] WASCA 71
Lowndes v R (1999) 195 CLR 665
Macey v R, unreported; CCA SCt of WA; Library No 930298; 27 May 1993
Mitchell v R (1998) 20 WAR 257
Poole v R (1999) 106 A Crim R 459
R v AB (No 2) (2000) 117 A Crim R 473
R v AJW [2001] SASC 308
R v Burchell (1987) 34 A Crim R 148
R v Cartright (1989) 17 NSWLR 243
R v Davies and Gorman (1978) 68 Cr App R 319
R v EPR [2001] WASCA 214
R v Estreich, unreported; CCA SCt of WA; Library No 950500
R v Everett (1994) 73 A Crim R 550
R v Ferrer-Esis (1991) 55 A Crim R 231
R v Gooley (1996) 66 SASR 380
R v GP (1997) 18 WAR 196
R v Hayes [1981] WAR 252
R v King (1985) 82 Cr App R 120
R v Liddington (1997) 18 WAR 394
R v Lowe (1978) 66 Cr App R 122
R v McAndrew [1999] WASCA 124
R v Millar [2001] WASCA 54
R v N [1998] 2 NZLR 272
R v Patrick, unreported; CCA SCt of WA; Library No 980157; 6 April 1998
R v Pereira (1991) 57 A Crim R 46
R v Perez-Vargas (1986) 8 NSWLR 559
R v Rostom [1996] 2 VR 97
R v Todd [1976] Qd R 21
R v Vachalec [1981] 1 NSWLR 351
Roadley (1990) 51 A Crim R 336
MALCOLM CJ: This is an expedited appeal by the Crown against sentence. On 3 December 2001 the respondent was convicted on his plea of guilty to six counts in an indictment containing 15 counts of sexual penetration of a child under the age of 13 years contrary to s 320(2) of the Criminal Code and one count of indecent dealing with a child under the age of 13 years contrary to s 320(4) of the Code. On 5 December 2001 the respondent was convicted after trial upon the remaining counts on the indictment save for count (10) with respect to which the respondent was acquitted by direction of the trial Judge.
On 23 January 2002 the respondent was convicted on his plea of guilty to one count of sexual penetration of a child under the age of 13 years contrary to s 320(2) of the Code and one count of indecent dealing with a child under the age of 13 years contrary to s 320(4) of the Code. The respondent was then remanded in custody for sentence. The maximum penalty for each offence under s 320(2) of the Code is imprisonment for 20 years. The maximum penalty for each offence under s 320(4) of the Code is imprisonment for 10 years.
The offences involved three different complainants all under the age of 13, who I will refer to as "JAR", "LJD" and "JRD". The relevant offences were committed in the period between 30 January 1994 and 26 October 2000. The respondent was born on 2 August 1981 and attained the age of 19 years on 2 August 2000. Seven of the relevant offences were committed in the period after he became an adult.
On 5 February 2002 a District Court Judge sentenced the respondent to concurrent effective terms of imprisonment of 3 years, reduced to 2 years on account of time spent in custody, and time spent in home detention under curfew while on bail. The sentences were imposed for a number of sexual offences involving three children. The terms of imprisonment were suspended for 2 years and in relation to other offences the respondent was made subject to an intensive supervision order for a period of 18 months with a programme requirement to undertake counselling to address the issues relating to his offending as well as sexual abuse he had himself experienced. In essence the Crown contends that, first, the intensive supervision order and the terms of imprisonment imposed were so inadequate as to manifest error. Secondly, it was contended that the learned Judge erred in suspending the terms of imprisonment imposed.
The notice of appeal was filed on 8 February 2002 together with a request that the hearing of the appeal be expedited and the earliest possible hearing date be fixed. On the same day I directed that the appeal be heard at the earliest possible date. By a fax dated 11 February 2002 the Office of the Director of Public Prosecutions indicated, among other things, that continued uncertainty about the matter was causing anxiety among the mothers of the children and having an adverse effect on the child complainants. By letter dated 13 February 2002 from my Associate to the Office of the Director and copied to the respondent's solicitor, it was indicated that the appeal could be heard on any one of 15, 21, 22, 25, 26 or 27 February 2002. The first available date on which both parties would be available was 22 February 2002.
Offences involving JAR
In the case of JAR, 12 of the counts on indictment 360 of 2001 were counts of sexual penetration contrary to s 320(2) of the Code. On 3 December 2001 the respondent pleaded guilty to counts (1), (2), (5), (6), (8) and (9) on that indictment. Each of these counts also involved sexual penetration of the complainant by the introduction of the respondent's penis into JAR's mouth. As to counts (1), (2), (5), (6), (8) and (9), there was no preliminary hearing. There was a video record of interview with the respondent. The offences were committed on specific dates unknown in the period between 30 January 1994 and 1 May 1999. The offences were committed on JAR, a young boy, during the period when he was between 4 and 8 years of age. The respondent was then aged between 13 and 16 years.
JAR lived with his family in a small country community close to Perth and across the road from the respondent and his family. JAR became friends with the respondent and often visited the respondent's house, both during the week and at weekends.
When counts (1) and (2) on the indictment were committed, JAR was aged 4 and the respondent was aged between 13 and 14. When returning home from pre‑school one day, JAR went to the respondent's house. The respondent was at home alone and asked JAR if he wanted to watch a movie. The respondent then put on a video of a movie which, according to JAR, was pornographic. It depicted men and women engaged in sexual intercourse. The respondent asked JAR if he wanted to do what the people were doing in the movie. He said "yes". The respondent pulled JAR's shorts and underpants down and began playing with his penis. The respondent then introduced JAR's penis into his mouth. This constituted the offence the subject of count (1). The respondent sucked on JAR's penis for quite a long time. When he stopped, he told JAR to suck his penis. The respondent pulled his own pants down to the knees. His penis was erect. The respondent introduced his penis into JAR's mouth and JAR proceeded to suck the respondent's penis. JAR stopped after a little while because, as he said, he did not like doing it but the respondent told him to continue. JAR stopped. The respondent told him to keep going a further two times. He eventually stopped once he heard his mother arrive home. This conduct constituted the offence the subject of count (2). How the respondent came to be in possession of the video was never explained.
JAR said that there were other days when he went to the respondent's house after pre‑school and on those occasions the respondent would suck his penis and he would suck the respondent's penis. The offences the subject of the plea of guilty to counts (5) and (6) occurred the day after counts (3) and (4) which were the subject of conviction after trial. The day after those offences were committed JAR returned to the respondent's house. The two of them were watching television. After the respondent's mother left the house the respondent sucked the complainant's penis by putting it into his mouth. This incident was the subject of count (5). The respondent then introduced his penis into JAR's mouth and had JAR suck his penis. That was count (6).
On the same day that counts (5) and (6) were committed, the anal penetration the subject of count (7) was committed. The respondent positioned the complainant in a kneeling position on the couch and penetrated the complainant's anus with his penis. The complainant told him to stop but the respondent continued the act of penetration for an appreciable time. The respondent was convicted of that offence by the jury after the trial in December 2001.
The offences the subject of counts (8) and (9) occurred the following day. On that occasion, while he was at the respondent's house, the respondent put JAR's penis into his mouth. That offence was the subject of count (8). The offence the subject of count (9) was committed when JAR sucked the respondent's penis when it was introduced into his mouth by the respondent. As has been noted the respondent was acquitted of the offence the subject of count (10) by direction of the trial Judge.
As to count (11), an arrangement was made for the respondent's younger brother and sister, the complainant JAR and the respondent to spend the night in a tent in the garden of the respondent's home. In the end, only the complainant spent the night in the tent with the respondent. During the night, the respondent pulled down the trousers of the complainant's pyjamas and sucked his penis. The respondent admitted this offence and was convicted on his plea of guilty. As to count (12), on an occasion when the complainant JAR was about 7, and the respondent was about 16 or 17, the complainant was present in the home of the respondent and they went into the respondent's bedroom to listen to music. The respondent pulled down his trousers, laid the complainant on the respondent's bed and made the complainant suck the respondent's penis. The respondent pleaded not guilty to this offence, but was convicted.
Offences involving LJD
The respondent was also convicted on 5 December 2001 of offences involving the complainant LJD between 18 December 1997 and 26 October 2000. These were comprised in counts (13) to (16) in indictment 360 of 2001. Count (13) on the first indictment occurred on the same date and at the same place as count (12) involving JAR. At that time LJD was aged between 5 and 6 and the respondent was aged 16. The offence involved penetration by the respondent inserting his penis into LJD's anus. As will appear, the inference is open that JAR was present at the time.
Counts (14), (15) and (16) were alleged to have occurred between 22 September 2000 and 26 October 2000 when LJD was aged 7 and the respondent was aged 19. Count (14) was that the respondent indecently dealt with LJD, a child under the age of 13 years, by rubbing his penis.
So far as the facts of these offences were concerned, the learned Judge commented at p 110 of the transcript:
"It is necessary for me to find the circumstances in which the offences were committed insofar as those charges to which you entered pleas of guilty in accordance with the facts which the Crown read to the Court in relation to those matters and the facts which were agreed by your counsel so they are the material facts as I find them for the purpose of sentencing and it doesn't need me to repeat those facts for the purpose of sentencing now.
In relation to the charges on which you were found guilty by the jury, it's necessary for me to find the circumstances in which those offences were committed in conformity with the findings that the jury made of guilt. Again, it's not necessary for me in the circumstances to relate the facts emanating from the evidence of the complainants in relation to those offences save to say that there was a similar pattern insofar as those offences were concerned as there was in relation to those offences to which you entered pleas of guilty."
With due respect to his Honour, this is not an appropriate or proper way of proceeding. In particular, where there has been a trial and evidence of particular offences has been given, it is necessary for the Judge who is called upon to sentence the offender to make findings of fact for the purposes of sentencing. It is not enough simply to say that, for the purposes of sentencing, the evidence of the complainant is accepted. As Jackson CJ, Neville and Lavan JJ said in Laposte v The Queen [1970] WAR 87 at 89:
"Once the jury have convicted an accused person, it is solely for the judge to decide what sentence to impose. For this purpose he must form his own view of the facts providing he does not form a view which conflicts with the verdict."
See also Hughes (1983) 10 A Crim R 125; and Mordecai (1985) 18 A Crim R 149. Where the jury's view of a particular issue relevant to sentencing is unknown, the Judge is entitled to make his own finding: R v Stehbens (1976) 14 SASR 240. In such a case the finding must be one of which the Judge is satisfied beyond a reasonable doubt: Stehbens at 245 – 246; O'Malley v French (1971) 2 SASR 110; and see Liu (1989) 40 A Crim R 468 at 474 per Franklyn J. In Sandford (1994) 72 A Crim R 160 at 194, Hunt CJ at CL said:
"The trial judge, when called upon to sentence the prisoner, is bound only by those facts necessarily found by the jury in reaching their verdict of guilty. All other facts against the prisoner must be found by the judge, provided that they do not conflict with the jury's verdict, and they must be found beyond reasonable doubt, but that does not mean that the judge is bound to take the most lenient view of the facts in favour of the prisoner; the judge must make his or her own judgment upon the evidence: Harris [1961] VR 236 at 237; Webb [1971] VR 147 at 152-153; Stehbens (1976) 14 SASR 240 at 245; O'Neill [1979] 2 NSWLR 582 at 588; (1979) 1 A Crim R 59 at 62-63; Martin [1981] 2 NSWLR 640 at 642-643; Mills (1985) 17 A Crim R 411 at 416; Savvas (No 2) (1991) 58 A Crim R 174 at 177, 188."
In Isaacs (1997) 90 A Crim R 587 in a joint judgment, Gleeson CJ, Mason P, Hunt CJ at CL, Simpson and Hidden JJ said at 591 – 592:
"The following principles concerning the law and practice of sentencing in this State are well-established:
1.Where, following a trial by jury, a person has been convicted of a criminal offence, the power and responsibility of determining the punishment to be inflicted upon the offender rest with the judge, and not with the jury: Harris [1961] VR 236; see also Kingswell (1985) 159 CLR 264 at 283; 19 A Crim R 65 at 76, per Mason J.
2.Subject to certain constraints, it is the duty of the judge to determine the facts relevant to sentencing. Some of these facts will have emerged in evidence at the trial; others may only emerge in the course of the sentencing proceedings. The fixing of an appropriate sentence ordinarily involves an exercise of judicial discretion, and it is for the judge to find the facts which are material to that exercise of discretion: Savvas (1995) 183 CLR 1; 78 A Crim R 538.
3.The primary constraint upon the power and duty of decising-making referred to above is that the view of the facts adopted by the judge for purposes of sentencing must be consistent with the verdict of the jury. This may produce the result that, in a particular case, the view of the facts which the judge is obliged to take is different from the view which the judge would have taken if unconstrained by the verdict: cf Maxwell (1996) 184 CLR 501; 87 A Crim R 180. In the present case, for example, a trial judge might have considered that the facts supported a verdict of murder, not manslaughter; nevertheless, the judge would be obliged to sentence on the basis that the case was one of manslaughter. The fact that a judge may not agree with a jury's verdict, and thus may be required to sentence on a basis different from the judge's personal view of the case, is an inevitable consequence of the division of functions inherent in trial by jury.
4.A second constraint is that findings of fact made against an offender by a sentencing judge must be arrived at beyond reasonable doubt.
5.There is no general requirement that a sentencing judge must sentence an offender upon the basis of the view of the facts, consistent with the verdict, which is most favourable to the offender: Harris. However, the practical effect of 4 above, in a given case, may be that, because the judge is required to resolve any reasonable doubt in favour of the accused, then the judge will be obliged, for that reason, to sentence upon a view of the facts which is most favourable to the offender. When that occurs, it will be because of the application of the principle referred to in 4 to the facts of the particular case, and not because of some principle requiring sentencing on the basis of leniency: Lupoi (1984) 15 A Crim R 183 at 184."
LJD gave evidence that he lived with his mother and his brother and the respondent's family were neighbours. It is apparent that he was a regular visitor to the respondent's house. He also knew JAR. LJD's mother was working at Coles. When he was in Grade 3 his father used to visit sometimes to look after him when his mother was at work. From time to time he would visit the respondent's house and play with him or other members of his family and LJD. LJD gave evidence that on one occasion at this time he was in the respondent's bedroom on his bed when the respondent "put his willie in my bum". Before this happened he saw the respondent put his penis in JAR's mouth. He also saw the respondent, whose pants were down, lying on top of JAR's shoulders, although he could not remember what he was doing. He did say that, after the respondent stopped, he "threw" JAR off the bed. It was then that the respondent committed the offence the subject of count (13) which LJD described in the following detail.
"Okay. When Stephen grabbed you and put you on the bed what happened next?---He pulled down my pants.
Do you remember what type of pants you were wearing that day? Whether they were long pants or short pants?---No.
No. Do you remember anything about what else you were wearing besides your pants?---T-shirt and jocks.
After Stephen pulled down your pants what happened?---He put his willie inside my bum.
Now, I'll get you to describe a little bit about that. First of all when you were put onto the bed by Stephen can you describe how you were on the bed? Were you sitting, lying - - - ?---I was on my tummy.
All right. You were on your tummy. Do you remember if anything happened to your jocks?---Yeah, they got pulled down.
When they were pulled down what happened?---Then he pulled my bum cheeks apart.
Who is 'he'?---Stephen.
After Stephen pulled your bum cheeks apart what happened?---He put his willie inside my bum.
When that happened were you able to tell what Stephen was doing, after he put his willie - - - ?---Yeah. He was pulling it in and out.
How long did that happen for?---I don't know.
Was it a long time or a short time?---It was a short time.
When he was doing that can you tell us how you felt?---Sore."
The respondent denied this offence, but was convicted.
When penetration of his anus stopped he was pushed off the bed by the respondent. LJD then ran out of the room. JAR also ran out just before LJD ran out. LJD did not tell anyone because JAR told him not to and he was scared that the respondent would do something to him. In my view it is apparent from the evidence that JAR was present when the offence against LJD was committed. This is an aspect of the offence of anal penetration which makes it more serious than it would otherwise have been.
Subsequently, for some period, LJD lived at Rockingham. When he was in Grade 4 he returned to the house near the respondent's house. He used to play with two of the younger children in the respondent's family. They watched videos together. Some weeks after they moved back, LJD and his brother helped fix a bicycle belonging to the respondent's younger brother. The next day he was at the respondent's house again with the respondent and the respondent's brother and sister. He was sitting on the respondent's bed. The respondent came in and said, "I'm going to touch you". He then started to pull down LJD's pants. LJD said he tried to leave the room but he could not because the respondent was holding on to him. On this occasion he could not remember where he was holding on to him. Nothing further happened on that occasion.
LJD then said he remembered two or three things being done to him by the respondent after he moved back to live nearby. These related to counts (14), (15) and (16) which were said to have occurred between 22 September 2000 and 26 October 2000.
The first thing LJD could remember was that the respondent got him into the respondent's bedroom, placed him on the bed, pulled down his pants to his knees and "rubbed my willie". This event was the subject of count (14). LJD tried to get away but the respondent rubbed him for about two minutes. He says that the respondent then pushed him off the bed. He pulled up his pants and went back to his house.
LJD said that the next day the respondent put his "willie" in his mouth. This was the subject of count (15). LJD had gone to the respondent's house to paint with the respondent's sister. At one point all of the children in the house left except for the respondent and LJD. LJD was then watching a television programme in the respondent's room. On this occasion the respondent put his penis into LJD's mouth while he was on his back on the bed. The respondent was on his shoulders. The respondent's pants were down past his knees. LJD described how the respondent was "pulling" his penis backwards and forwards. This went on for a short time. The respondent then got off him and pulled up his pants. LJD then went home.
Offences involving JRD
The pleas of guilty by the respondent on 23 January 2002 to counts (1) and (2) in indictment 403 of 2000 were accepted by the Crown in full satisfaction of the indictment. Count (1) was that between 22 September 2000 and 26 October 2000 the respondent indecently dealt with a third child, JRD, who was a younger brother of LJD. Count (2) was that between the same dates the respondent sexually penetrated JRD by penetrating JRD's anus with his penis. Those pleas were accepted in full satisfaction of that indictment which had contained a further two counts of indecent dealing with JRD.
At the time these two offences were committed on JRD, the complainant was 7 years of age and the respondent was aged 19. After the school holidays in September 2000, JRD was playing with the respondent's sister at the respondent's house one afternoon between 22 September and 26 October 2000. The respondent told JRD to go into the respondent's bedroom. The respondent then showed JRD what he described as "rude videos". The respondent then gave JRD what he described as a "willie massage" using some cream. The respondent also put cream over JRD's bottom and his penis. These actions constituted the indecent dealing the subject of count (1). Once again, there was no explanation given of how the respondent came to be in possession of the videos.
The offence the subject of count (2) on the same indictment was that the next day, in the respondent's bedroom, the respondent penetrated JRD's anus with his penis. JRD complained that it hurt and did not feel nice. These offences were disclosed to the police by JRD the following day, which was 25 October 2000.
The respondent participated in a video record of interview on 27 October 2000 during which he admitted having oral sex with JAR on more than one occasion on which he sucked JAR's penis and JAR sucked his penis. He said he could not remember the further incidents of oral penetration alleged by JAR. Eventually he said it only happened "a couple of times".
Indictment 403 of 2001 originally contained two further counts, but the pleas of guilty to counts (1) and (2) were accepted in full satisfaction of the indictment. A nolle prosequi was tendered in respect of the remaining two counts.
Medical evidence
There was medical evidence given at the respondent's trial for the offences of anal penetration to which he pleaded not guilty. Dr Winterton is a medical practitioner who is, in addition to the standard qualifications in medicine and surgery, the holder of a Diploma of the Royal Australian College of Obstetricians and Gynaecologists and a Fellow of the Royal Australian College of General Practitioners. As at December 2001 he had been practising as a medical practitioner for some 25 years. He was the Medical Director of the Child Protection Unit, a position he had held for the past 3 years. His experience in the Child Protection Unit has extended over some 25 years.
On 27 October 2001 he conducted a general examination of JAR, including his genital area and anus. No abnormality was detected. A similar examination of LJD on 31 October 2001 detected no abnormality.
Dr Winterton's evidence was that in the case of anal penetration of a child by a penis, the absence, on subsequent examination, of any physical findings does not negate or refute the complaint, although it depends "how soon after the event that you hypothetically speculate occurred". Dr Winterton said that when the examination is conducted several years after the relevant event, one may well see "absolutely no physical findings". Where the event is said to have taken place two to three weeks prior to the examination, Dr Winterton said that one may well find no abnormality, depending on the vigour, the force and the degree of penetration, but generally "relatively minor anal injuries and even relatively major anal injuries heal relatively quickly". For example, where there has been surgery for the removal of haemorrhoids, it is very unpleasant, but within 10 days most of the discomfort will have passed and recovery will be complete in a fortnight.
When cross‑examined Dr Winterton said that when he examined the complainants JAR and LJD, he was looking for old scarring in the nature of "fissuring". This is a form of tear in the anal margin which can be superficial or quite deep. It is an interruption of the normal continuity of the anal skin, particularly in the area of the anal sphincter. As Dr Winterton put it:
"In short, one does not get a scar unless there is trauma, but there may be trauma and no scar."
It is also possible to get anal fissuring in the normal passage of a stool which is very hard.
It is apparent from the verdicts of the jury that the evidence of the two complainants and that of Dr Winterton was accepted by the jury. The learned sentencing Judge made it clear that he accepted that evidence for the purposes of sentencing in respect of counts (3), (4), (7), (11), (12), (13), (14), (15) and (16) in the relevant indictment.
As at 5 December 2001 the position was that 23 January 2002 was the earliest date on which the respondent could be sentenced for the offences of which he had at that stage been convicted. There were also the offences the subject of the second indictment to be dealt with. At that stage the respondent had been convicted by his own plea of guilty on six of the counts contained in the first indictment, acquitted by direction of the trial Judge in respect of count (10) and convicted of the remaining nine counts by verdict of the jury.
At that stage, as appears from p 87 of the transcript, it was accepted by both counsel and the trial Judge that the offences were serious and in the normal course would warrant an immediate custodial sentence. The respondent was remanded in custody for sentence on 23 January 2002. As the learned Judge put it, however:
"It would only be in exceptional circumstances that I could grant bail pending sentence and it has not been indicated to me in our circumstances that there are exceptional circumstances, and whilst it's not been indicated to me as your counsel has indicated really there is nothing now that can be said which would warrant bail being granted. Of course in not granting bail now and remanding you in custody does not mean that ultimately a custodial sentence will be imposed. It simply means that the options which are available to me under the Sentencing Act are all available to me."
So far as the counts the subject of indictment 403 were concerned, the respondent was also remanded for sentence to 23 January 2002.
Plea in mitigation
Counsel for the Crown informed the learned sentencing Judge on 23 January 2002 that the respondent had been in custody between 30 October 2000 and 18 December 2000, a period of 50 days. Subsequent to his convictions he had been in custody from 5 December 2001 until 23 January 2002, a further period of 49 days. Counsel for the Crown calculated that any sentence could be backdated to 16 October 2001.
At that stage the learned sentencing Judge had received a pre‑sentence report dated 22 January 2002, a specialist report by a psychologist dated 18 January 2002 and a psychiatrist's report which was undated together with a large number of character references by way of letters on behalf of the respondent. The respondent was remanded in custody for a further 14 days until 5 February 2002. On that date his Honour heard a plea in mitigation on the respondent's behalf by his counsel who first submitted that an allowance should be made for the fact that the respondent was in custody from 27 October 2000 until 18 December 2000. In addition, it was submitted that account should be taken of the fact that, while he was on bail from 18 December until 1 May 2001, a period of approximately four months, he was subject to a 24 hour curfew which meant that he was unable to leave his home, unless he was in the company of a parent. That arrangement was in place for 134 days.
From 2 May 2001 until 16 July 2001, a further period of 76 days, the 24 hour curfew remained, but on Mondays, Wednesdays and Thursday the respondent was permitted to attend TAFE on his own.
On 16 July 2001 the curfew was changed to be from 8.00 pm to 6.00 am. From that date he was allowed to go about his own affairs during the day but from 8.00 pm until 6.00 am the following morning he was required to remain at home although, it would appear that he remained free to go out if accompanied by a parent. Finally, the respondent was in custody from 5 December 2001 until 5 February 2002, a further period of 61 days.
Counsel for the respondent pointed out that counts (1) to (9) on indictment 360 occurred when the respondent was aged between 13 and 14, having turned 14 on 2 August 1995. It was submitted that in respect of these offences the respondent should be sentenced as a child. The offences the subject of counts (11), (12) and (13) occurred in a period between 1997 and 1999 when the respondent was aged between 16 and 18. The offences in counts (12) and (13) involving both JAR and LJD respectively occurred at the same place and on the same date. The offences the subject of counts (14) and (15) on the first indictment both involved the complainant LJD, as well as counts (1) and (2) on the second indictment in relation to the complainant JRD, all occurred in September or October 2000 when the respondent was 19 years of age.
Pre-sentence report
The pre‑sentence report indicated that the respondent was the eldest of three children. His childhood was described as a normal upbringing in a happy and close family environment. He was described by his parents as having been a normal happy child who did well at school, until his second year at high school. At that time his academic performance declined, but his parents had no idea of the reason for this. They were shocked when he disclosed that he had been subject to sexual abuse by an older relative when he was aged between 7 and 9. He had not disclosed this for fear of rejection. As at January 2002 the respondent indicated that he had maintained a normal heterosexual relationship with a young woman over a period of 3 years, that is to say, dating back to 1999. Apparently he was first able to disclose his offending and his own experience of sexual abuse to his girlfriend.
Academically he completed Year 12 and was an average student. He commenced a carpentry course at TAFE but discontinued this to take up work on a farm for nine months. He subsequently re‑enrolled at TAFE to complete a course in horticulture with the aim of becoming a landscape designer.
While his physical health was good he suffered from depression and was under medication. At his girlfriend's instigation he sought counselling after he had disclosed his offending. He sought assistance through the Sexual Assault Referral Centre, but did not continue with this. He did, however, engage in counselling with a psychologist in Midland for almost a year prior to his remand in custody. This appears to have related to his own experience of sexual abuse, rather than involving any treatment element for the abuse which he had perpetrated. The respondent has been an active participant in a number of sports.
The pre‑sentence report concludes that the respondent's failure to fully acknowledge his offending remains a concern. He has, however, shown some insight into his offending behaviour and appears to be remorseful for the harm he has caused to both his family and his victims. He says he is prepared to undertake whatever programmes are necessary for him to reduce the risk of re‑offending. The pre‑sentence report commends his attempt to address his behaviour prior to his remand in custody but, in the light of all of the information, the report seems to attach somewhat more credit than was due as the treatment sought related primarily to other issues. It is clear, however, that both his offending and his needs in relation to his own sexual abuse are issues requiring to be addressed.
Psychologist's report
The psychologist's report refers to the sexual abuse he suffered at the hands of a cousin between the ages of 7 to 9 years old. The cousin was allegedly 16 years old at the time. The respondent claimed that this experience in some way "normalised" such behaviour. He also reported that he had been confused about his sexuality as he entered high school, finding himself attracted to both males and females of his own age. It was in the context that he was eager for some sexual contact and reluctance to approach his peers that he offended against the boys in question. He was aware that his behaviour was inappropriate at the time he offended but he did not appreciate the likely impact of his behaviour, although he understood the potential consequences for victims in the light of his own experience.
He is still in denial in relation to some of the offences and, in particular, the anal penetration. At the same time he had been in a relationship with a female partner for some 3 years from 1999. He informed the psychologist that he had, during 2001, undertaken counselling in relation to depression with some focus both on his abuse and his offending behaviour. His parents remain supportive as do significant others. He was, however, described as having limited motivation to engage in treatment. The report points out that, while he acknowledges his offending when he was approximately 13 years of age, he continues to deny offending against one of the victims and the full course of behaviour of which he was found guilty in relation to another of the victims. He is assessed as at the medium‑low risk of re‑offending, particularly because of his limited acceptance of responsibility and his denial of some of the offences. He does, however, acknowledge the potential effects of his behaviour on victims. It is in his favour that his support network of family, partner and friends is positive. His motivation to engage in treatment is, however, said to be limited.
Psychiatrist's report
The learned Judge also had the benefit of a psychiatrist's report from a Consultant Forensic Psychiatrist which confirmed that, while the respondent acknowledged his guilt of a number of oral sexual penetrations with one complainant, he continued to deny anal penetration with any complainant. He has acknowledged that from age 15 to 18 he was confused about his sexuality and experienced significant depression with some self‑harm. For several months he had been prescribed with anti‑depressant medication. He disclosed multiple episodes of sexual abuse by a homosexual teenage relative at the ages of 7 to 9, which included anal penetration which he said "turned me right off". He did not disclose this abuse. He regarded his homosexual behaviour with the victims in this case as experimenting during a confused phase. He maintained that he experienced some significant resolution of his "confused sexuality" when he met his present girlfriend when he was aged 16 or 17.
According to the psychiatrist, the child sexual abuse he experienced has been the "major determinant" for the present offending behaviours. I must say I find this difficult to reconcile with his stated distaste for or rejection of the anal penetration which was inflicted upon him. He also maintained that he was less interested in sexual encounters with young males and pursued heterosexual encounters after the age of 15 or 16. However, the offending the subject of this case continued until after he was 19 years of age and even after he had formed a heterosexual relationship with his girlfriend. It is possible that he has not been truthful and is endeavouring to maintain a heterosexual view of himself. The psychiatrist's report was unable to distinguish between these possibilities. There are apparently some positive indications of the benefits of counselling and therapy in the context of his rehabilitation.
Victim impact statements
The learned Judge also had before him a victim impact statement by JAR's mother both on JAR's behalf and her own behalf. There was also a victim impact statement on behalf of LJD and JRD by their mother and also on her own behalf.
Sentencing
In sentencing the respondent the learned Judge noted that the offences of which he had been convicted covered three separate periods of time. The earliest offences involving JAR were counts (1) to (9) which comprised offences in the period 30 January 1994 to 21 December 1995 involving JAR who was aged between 3½ and 4½ years. At that time the respondent was aged between 12 and 14. Count (11) was alleged to have occurred between 17 December 1997 and 28 January 1998 and count (12) between 18 December 1997 and 1 May 1999. At that time JAR was aged between 7½ and 8 and the respondent was 16 to 17.
The offence involving LJD the subject of count (13) occurred on the same date and place as the offence against JAR between 18 December 1997 and 1 May 1999 when LJD was aged between 5 and 6 and the respondent was 16. The offences the subject of counts (14), (15) and (16) occurred between 22 September and 26 October 2000 when LJD was aged 7 and the respondent aged 19. The two counts on the second indictment involving the complainant JRD occurred during the same period. At that time JRD was aged 7 and the respondent was aged 19.
Sentencing remarks
In his sentencing remarks the learned sentencing Judge referred to the various character references which he had received, together with the pre‑sentence report and the other reports to which I have referred, as well as the victim impact statements which, his Honour said:
"… show the adverse effects that these incidents have had upon each of the complainants' emotional condition, their education and their general state of wellbeing."
His Honour went on to say:
"Unsworn testimony of this kind cannot be used to increase a sentence which would otherwise have been imposed but it may tend to negate mitigating factors. I do have some difficulty, however, in accepting at face value that the matters said to be impacting on the lives of each of the complainants are wholly attributable as consequences of the offences committed upon them. I say that by way of observation without detracting from anything which is said in those statements but I must necessarily be cautious in, as I said, accepting at face value what is there said. That doesn't lessen in any way the adverse effect which understandably may have flowed from the offences which have been committed. Furthermore the Crown says and there was evidence to the effect that these charges were not isolated but they were representative of a course of conduct over a period of time and that those charges which you have been convicted of are representative of that course of conduct."
The learned Judge had before him a significant number of personal references regarding the respondent including references from former teachers, family friends, neighbours, the family doctor, his counsellor, his godmother and his parents. These references were commented upon by the learned Judge as follows:
"The personal references which have been provided to me I have read each one. They include a letter from your parents; clearly this has been a traumatic time for them and probably the greatest punishment which might be imposed in these circumstances is the distress, the worry, the concern which your parents and your siblings have had to bear. In that sense you brought the family into a degree of shame and embarrassment and that is understandable as a consequence of your offending behaviour. It's apparent to me that you have enjoyed and continue to enjoy the support of a close and loving family who are prepared to stand by you. You are fortunate to have that support. Many who we see through these courts don't have that support and it's fortunate for you that you do and with that support, both of your parents, your siblings and those friends who have provided references that will assist you and assist your family in getting through this period of time. Each of those who have provided testimonials speak well of you. As a young man at school, at sport and in the community.
You have participated in the community and in sport in various ways. You have not sat idle, you have not been one who has been a cause of mischief or otherwise a cause of mischief or worry. You have worked when work has been available. You have undertaken study and you seemingly wish to proceed to qualify yourself to become a landscape gardener or something in that line and to have that goal and that interest is to be commended. I do take into account, as necessarily I must, all that has been said about you. It's not necessary that I should detail each of those reports or that which is said and I think that suffice to say that they all speak well of you."
His Honour then went on to refer to the pre‑sentence report the summary of which his Honour read into the transcript, namely:
"Mr Hough's failure to fully acknowledge his offending remains a concern however he has shown some insight into his offending behaviour and appears to be remorseful for the harm he has caused to both his family and victims. He has indicated that he is prepared to undertake whatever programmes are necessary for him to reduce the risk of re‑offending. His attempt to address his behaviour prior to his remand in custody is commendable and is also indication of his amenability to further treatment. Mr Hough's offending and needs in relation to his own sexual abuse are recognised as issues to be addressed. Should the court wish to use a community based sentencing option a management regime involving weekly reporting and a referral to the Sex Offender Treatment Programme would be applied.
In the event of a custodial sentence Mr Hough's eligibility for parole is supported."
His Honour then referred to the psychologist's report as providing some insight into the offending behaviour commenting that the report noted that:
"… in relation to issues of empathy Mr Hough indicated that he had been aware that his behaviour had been inappropriate at the time of his offending."
His Honour noted that the report also dealt more fully than his counsel had done with the respondent's social history and personal relationships. His Honour also noted that it indicated that the respondent had undertaken approximately a year of counselling in relation to his depression leading up to the time he was remanded in custody. His Honour then noted that both that report and a report of a consultant psychiatrist indicated there was a limited acceptance of responsibility, so far as the offending was concerned, which was consistent with the respondent's pleas and maintaining a denial of acceptance of responsibility in respect of the offences of which he was convicted by the jury. Both these reports had been prepared prior to the pleas of guilty in relation to the second indictment. The conclusion in the psychologist's report classifying the respondent at a medium‑low risk of re‑offending was noted. His Honour then went on to say:
"Your counsel in his submissions to me indicated those matters as I have referred to from the reports and touched upon a number of other mitigating factors, they being your age at the time when the offences were committed, commencing from the age of 13 through to 16 or so and then 16 through to 19 years of age, your age now, which I understand is 20 years of age and also the time which you have spent in custody and also the time which you have been subjected to pretty strict curfew demands."
His Honour then recounted the time in custody and the time on curfew which he indicated he would take into account in considering sentence. His Honour went on to refer to the episode of depression; the departure of the respondent's girlfriend overseas; the complaints by the respondent of prior sexual abuse between ages 7 and 9; and also an incident which occurred when the respondent was sexually abused in the city by others when aged 14. As to this last point the learned Judge commented that this occurred:
"… at about the time or following, immediately following the commencement of the commission of offences by you."
His Honour went on to say:
"The reports, as I have said, indicate your recognition of the inappropriate sexual contact which did take place. You have continually denied or maintained a denial as to the anal penetration charges but of course the verdict of the jury is to a different effect. The report suggests that in relation to those matters that there could be an avoidance syndrome in the sense that you maintained denial of those matters so that you didn't – or that you didn't want your parents to know the extent of your wrongdoing.
On the other hands [sic], these offences are serious offences and they cannot be underestimated so far as the impact which they have had on your victims is concerned. The Crown says that your plea of guilty to some of the offences and not other of the offences was perhaps an attempt to minimise the extent of your wrongdoing. Clearly, it is relevant the fact that the victims or the complainants were so young at the time when these offences were committed upon them. They are at a vulnerable age, as young children are. The Crown claims that there was a breach of trust in the sense that as a neighbour and a member of the community, you were an older boy and one whom these younger people would look up to in the community and at that level at least there has been a breach of trust.
I must also have regard to deterrence, both personal and general. In imposing sentence I must impose a sentence which reflects the opprobrium which the community has with regard to this type of offending and the sentence must be such that it sends a message to others who might be like-minded to commit similar offences that the community and the courts simply won't tolerate this type of offending. The sentence must be one which will deter others from committing similar offences and likewise there must be a deterrence personal to you so as to ensure that you don't offend in this way again in the future.
The reports indicate that there is a level of remorse and contrition and again my sentence must reflect that. It is the case that you have no prior record for offending. Again, that is a positive factor which I must take into account. Having regard to all those factors, it's necessary for me to undertake the task of balancing and weighing up those factors to arrive at a sentence appropriate in these circumstances.
Offences involving sexual penetration and in circumstances where it involves children under the age of 13 and particularly in this case where it involves, some of the offences involve, a child in the order of 4 and a half to 5 years of age inevitably will bring a custodial sentence; that is a sentence of a term of imprisonment.
It would only be in very exceptional circumstances where a sentence of imprisonment would not be imposed. In the circumstances at hand there are not any of the exceptional circumstances which would warrant my consideration of anything less than a sentence of imprisonment. I am required to consider all of the alternatives available to me under the Sentencing Act and in my consideration none other than a sentence of imprisonment is appropriate.
Having come to that view you[r] counsel in his submissions to me proposed that if a custodial sentence were to be imposed that I might consider suspending the sentence of imprisonment. Having come firstly to the view that a sentence of imprisonment is appropriate I must look at and consider again all the factors giving rise to these offences: the offending behaviour and the mitigating and the aggravating factors. Weigh them up and balance them and have regard also to the prospects of rehabilitation, your rehabilitation, insofar as the future is concerned.
Weighing those matters up again it is relevant your age at the time of commission of these offences and also your age now, they are matters which are on one side of the scales. It is also relevant the time which you have spent in custody and under curfew for this period of time. To date you have spent approximately 4 months in custody which, when calculated up, would equate to a sentence of 12 months imprisonment eligible for parole. So effectively you have served a third of a sentence of 12 months' imprisonment; that's without having regard to the strict curfew requirements.
Another factor which is relevant is also that you have undertaken and participated in counselling over the past 12 months. That's indicated in the pre-sentence report and the other reports which I have referred to. It indicates to me that there has been a positive step forward to address your offending behaviour and that weighs heavily in my consideration along with the remorse and the contrition which has been demonstrated.
At the end of the day, as I indicated, it's a balancing act. On one side of the scales there are those matters I have referred to and on the other side of the scales is the seriousness of these offences which I said earlier cannot be underestimated particularly having regard to the age of the victims. Having said that I will proceed to sentence.
It's necessary that I impose a sentence in respect of each of the counts of which you have been found guilty and to have regard to the overall effect of those sentences. It's also necessary for me to have regard not just the matter of deterrence but also the community interest so far as your rehabilitation is concerned."
The learned Judge then proceeded to sentence for the counts of anal penetration being counts (4), (7), (13) and (16) on indictment 360 and count (2) in indictment 403. His Honour took the view that an appropriate sentence for any one of those offences would be a term of imprisonment for 3 years. This was reduced to 2 years having regard to the time that the respondent had spent in custody. His Honour then directed those sentences to be served concurrently and that the respondent be eligible for parole with respect to each of them. His Honour then proceeded to suspend the sentence for a period of 2 years. In respect of the other counts contained in the indictments his Honour imposed "an omnibus sentence" by way of an intensive supervision order for a term of 18 months. His Honour also imposed a programme requirement that the respondent undertake counselling relevant to his offending behaviour and address the issues in relation to his own sexual abuse. The learned Judge concluded his sentencing remarks as follows:
"In conclusion, I have come to the view that the community's interests and your interests while reflecting the seriousness of these offence[s] is best served not by sending you to an immediate term of imprisonment but rather so that you can in your family environment continue to participate, with the support of community corrections, with the counselling that you are having and your own personal development so far as future work and occupation is concerned so that you can be a good and committed member of the community."
The Crown appeals against the sentences so imposed on two grounds, namely:
"1.The intensive supervision order and the terms of imprisonment imposed were so inadequate as to manifest error in the exercise of the sentencing discretion.
PARTICULARS
(a)The sentences failed adequately to reflect the seriousness of the offences and the circumstances in which they were committed, including:
(i)the youth and vulnerability of the victims;
(ii)the number of victims;
(iii)the seriousness of the harm done to the victims;
(iv)the period of the offending behaviour;
(v)the absence of any significant remorse from the offender;
(vi)the disparity in age between the complainants and the respondent; and
(vii)the breach of trust involved in the commission of the offences.
(b)The sentences failed to take sufficient account of the need for personal and general deterrence.
2.The learned sentencing Judge erred in suspending the terms of imprisonment imposed."
In support of ground 2 the Crown repeated the same particulars as have been set out with respect to ground 1.
In the result, the respondent was sentenced to concurrent terms of imprisonment of 2 years with eligibility for parole, to be suspended for 2 years on each of the five separate counts of anal penetration with his penis, involving three different children. Upon each of the remaining counts he was sentenced to an intensive supervision order for a period of 18 months with programme requirements.
In my opinion, it needs to be steadily borne in mind that the respondent was an adult when he committed five of the offences. These were first, the indecent dealing with LJD; secondly, the sexual penetration of LJD's mouth; thirdly, the sexual penetration of LJD's anus with the respondent's penis in the period September – October 2000; fourthly, the indecent dealing with JRD; and finally, the penetration of JRD's anus with the respondent's penis in the same period.
The seriousness of sexual offences and, in particular, those involving children, was reflected in the amendments to relevant provisions of the Criminal Code by the Acts Amendment (Sexual Assaults) Act 1985 by the introduction of a new set of sexual assault provisions. The maximum penalty for unlawful and indecent assault was fixed at imprisonment for 4 years by s 324B of the Code. Where the indecent assault was aggravated, the maximum was 6 years: s 324C. The offence of sexual penetration without consent, including the former offence of rape, carried a maximum of 14 years under s 324D. Where the penetration was without consent and in circumstances of aggravation, the maximum penalty was imprisonment for 20 years.
By s 324F the expression "to sexually penetrate" was defined to include penetration of the vagina or anus of any person with any part of the body of another person or any object manipulated by another person, except for medical purposes, as well as the introduction of any part of the penis of one person into the mouth of another; or to engage in cunnilingus. There was a statutory definition of "consent" inserted in s 324G(1) together with a provision in s 324G(2) that a failure to offer physical resistance to a sexual assault did not of itself constitute consent to a sexual assault. There was also an extended definition of "circumstances of aggravation" including as a circumstance of aggravation that the person assaulted or sexually penetrated was under the age of 16 years.
In Ginder (1987) 23 A Crim R 1 at 4 Burt CJ said:
"… it must be accepted that sexual penetration by one person of another without the consent of that person is a serious crime and that if the person so penetrated is under the age of 16 years it is even more serious. The law is, I think, clearly saying that a person who commits such a crime if he is to be sentenced should be punished and that he should be seen to have been punished … Having said that, a significant area for the exercise of judicial discretion remains. There are no doubt many degrees of culpability within the circumstances of each act of sexual penetration and within each generally stated circumstance of aggravation. They should not be ignored. And the personal antecedents of the offender must remain of considerable significance. They, too, cannot be ignored. Hence a 'tariff' for offences against s 324D or s 324E of the Code will remain as elusive as ever. But having said that I think it must remain the case that all mitigating circumstances within any particular case must be seen to be operating upon a sentence which gives proper expression to the general value judgment of the parliament so recently expressed."
In Podirsky (1989) 43 A Crim R 404 at 410 – 411 I quoted that passage in Ginder and said that while I agreed with Burt CJ that a "tariff" for sentences in relation to sexual offences was as elusive as ever, a sentence for sexual penetration in the form of aggravated assault still commonly referred to as "rape", a sentence of about 6 years was commonly imposed. Where the offence was aggravated because the victim was under 16 years of age, a sentence of about 8 years was commonly imposed.
In Podirsky at 411 I referred to Price (1988) 33 A Crim R 539 in which this Court imposed an effective sentence of 6 years in respect of three counts of indecent assault by the offender on the daughter of his de facto wife and one count of sexual penetration without consent. Only a slight digital penetration was involved. The offences were committed when the girl was aged between 11 and 12. In Hinckley, unreported; CCA SCt of WA; Library No 7746; 21 July 1989 the offender pleaded guilty to five counts of unlawfully and indecently dealing with a child under the age of 14 years, six counts of inciting a child under the age of 14 years to unlawfully and indecently deal with him and one count of inciting to unlawful and indecent dealing with a girl under the age of 16 years. The offences occurred over a 7 year period and involved the offender's two step‑daughters. One was aged under 14 and the other under 16. The total sentence in that case was effectively 6 years.
While, as it was pointed out in Podirsky at 411, none of those sentences were regarded as having the characteristics of "tariff sentences" because there was so much room for individual variation in terms of the kinds of sexual penetration and other sexual acts as well as circumstances of aggravation, quite apart from person and other factors of mitigation.
The sexual offence provisions in the Criminal Code were further amended by the Acts Amendment (Sexual Offences) Act 1992 (WA) by the introduction of an entirely new Chapter XXXI. The provisions introduced included the provision in s 320(2) that a person who sexually penetrates a child under the age of 13 years is guilty of a crime and liable to imprisonment for 20 years. Section 320(4) provides that any person who indecently deals with a child under the age of 13 years is guilty of a crime and liable to imprisonment for 10 years.
In Woods v The Queen (1995) 14 WAR 341 this Court held that a total cumulative sentence of 10 years and 10 months for 21 counts of sexual assaults committed over 3 years by a brother‑in‑law on two young females in the family was not manifestly excessive, notwithstanding that the offender himself was quite young, pleaded guilty, had voluntarily taken steps towards rehabilitation and had otherwise shown remorse and contrition. After a review of sentences and sentencing considerations in sexual assault cases, it was laid down that the dominant sentencing considerations in such cases are general and personal deterrence and the protection of vulnerable young children and thus, mitigatory factors do not have as much weight as they might in other cases. In that case the applicant had been convicted on his plea of guilty to 21 counts of sexual assaults on two young girls. The girls were the two younger sisters of his wife referred to as "T" and "S". There were 14 counts relating to T, covering the period 20 February 1988 to 20 February 1992 when T was aged between 12 and 15. The seven offences relating to S were committed between 1 August 1992 and 9 April 1993 after his offending against T had ceased. S attained the age of 10 on 25 January 1993 so that the offences against her occurred in the last part of her 9th year and the early part of her 10th year. For the 14 offences against T, the learned Judge passed an effective sentence of 6 years taking account time spent in custody. For the offences against S there was an aggregate sentence of 5 years to be served cumulatively upon the sentence imposed for the offences against T.
Importantly, in R v Wozencroft, unreported; CCA SCt of WA; Library No 6606; 25 February 1987, Burt CJ said that:
"… in my opinion the general intention of the Act (the Acts Amendment (Sexual Assaults) Act 1985 (WA)) is that an act of sexual penetration as that expression is defined, if achieved without consent, is now to be regarded as a serious crime and the more so where, as here, it is committed with a circumstance of aggravation, one such circumstance being that the person sexually penetrated is under the age of 16 years. Once the decision has properly been taken to impose a sentence for such an offence (unlawful sexual penetration of a person under the age of 16 years) it is not then to the point to contend that the sentence should be structured upon the assumption that the offender requires treatment or counselling or both and that accordingly it should be a sentence which is designed to facilitate a 'cure' to be achieved in that way. As I read the Act the general approach must be that the primary purpose of a sentence for such an offence is to protect members of the community from such assaults, and that that protection is to be achieved by a sentence which is and which is seen to be imposed as a punishment, its purpose being to deter. The idea of rehabilitation of a particular offender, although it cannot be ignored, must find its accommodation within such a sentence. The Act discloses a broad policy decision which the court should give effect to. To that extent it has for the courts closed the debate."
In Woods v The Queen at 346 Anderson J commented upon that passage as follows:
"The policy is reflected in the maximum penalty that might have been imposed on each of these counts which is 6 years for each of the aggravated indecent assaults and 20 years for aggravated sexual penetration. In the case of a single act of aggravated sexual assault by penile penetration, where the circumstance of aggravation is that the complainant is under the age of 16 years, it is not unusual for the courts to impose sentences of 7 years or thereabouts and a sentence of 6 years is quite common. Where there is a series of offences, the criminality is regarded as being much higher. See the discussion in R v Podirsky (1989) 43 A Crim R 404 at 411. As a review of the cases will show, an effective sentence of 6 years' imprisonment for this series of offences by this man in these circumstances against this complainant is, on the face of it, well within the range. It is at the lower end of the range, in my opinion, and the matters put forward in mitigation do not affect that conclusion."
In that case I agreed with the judgment of Anderson J as did Seaman J.
So far as the youth of the offender was concerned, Anderson J said in Woods at 346 – 347:
"I do not think much weight can be given to this, in this case. It is true that when his offending against T began he was only 18 and she was 12, so that there was not a great disparity in age between them. However, whilst disparity in age can sometimes be an aggravating feature (Pihema v The Queen (unreported, Court of Criminal Appeal, WA, Library No 940137, 17 March 1994), absence of disparity is not necessarily a mitigating feature. The applicant was an adult and T was a child and the applicant's standing in the family at that time as the de facto husband of T's elder sister placed him in a situation of trust and, in virtue of that trust, he was provided with opportunities to deal with T in the way that he did and he did so in breach of that trust against the definite wishes of T, as he knew. His offending continued for the next 4 years. In my opinion, absence of age disparity in those circumstances had little mitigatory value."
Woods was also a case in which the applicant displayed "a marked tendency to justify his sexually deviant behaviour in terms of his own sexual victimisation as a child, suggesting that he views himself as a victim implying a lack of accountability". There is a significant element of a similar justification in the present case. Woods was a case in which sentence was passed on the basis that the acts of sexual penetration of the victim S involved putting his finger in her vagina and penetration by his penis in her vagina limited to the outer lips of the vagina. After detailed review of the cases, Anderson J concluded that cases of intra‑family sexual assaults on young children have attracted heavy sentences of 8 years or more in total and were often, but not always, cases where more than one child had been victimised or where there had been multiple offending over an extended period and the offending has included some sexual penetration in one form or another. While the present case was not a case of intra‑family sexual assaults, it was of a similar nature given the close knit character of the neighbourhood and the almost daily interaction between the respondent and the three children who were his victims. While this did not put the respondent in a position of trust in the accepted sense that the children were in the respondent's care, the relationship became very much like that of a child minder or baby sitter in relation to the three children who became his victims. There was clearly a degree of trust involved in relation to the three victims. However, so far as the offences which were committed by the respondent before reaching the age of 18 years are concerned, the respondent is required to be dealt with under the Young Offenders Act 1994 (WA) as required by s 4 of that Act.
Consequently, he can only be sentenced as an adult for those offences which he committed as an adult. Where an offender who committed offences as a child is 18 years of age or older at the time of sentence, the court dealing with the offender must dispose of the matter by sentencing the offender under the Sentencing Act 1995 (WA) and the Sentence Administration Act 1999 (WA) applies to and in respect of the sentence imposed by virtue of s 50B(2) of the Sentencing Act. Notwithstanding s 50B(2), however, s 46 of the Young Offenders Act applies to the court dealing with such an offence: s 50B(5) of the Act. Section 46 sets out the principles and considerations to be applied to young offenders, so far as they are presently relevant, as follows:
"(1)When dealing with a young person who has been found guilty of an offence, the court, in disposing of the matter, is to apply —
(a)the principles applying generally for disposing of charges of offences, except as those principles are modified by this Act; and
(b)the general principles of juvenile justice.
(2)The court is to consider any information about the offender or the offence that may assist the court to decide how to dispose of the matter, and in particular —
(a)the nature and seriousness of the offence;
(b)any history of offences previously committed by the offender;
(c)the cultural background of the offender;
(d)any order previously made by a court when disposing of a charge of an offence that still applies to the offender, and any further order that is liable to be imposed if the offender does not comply with the terms of any such order; and
(e)the extent, if any, to which any person was affected as a victim of the offence.
(3)The court is to dispose of the matter in a way that is in proportion to the seriousness of the offence and is consistent with the treatment of other young persons who commit offences.
(4)In deciding how to dispose of the matter, which includes deciding the appropriate degree of severity to be used, the court is to consider how young the offender is as a mitigating factor.
(5)The court is to have regard to the fact that the rehabilitation of an offender is facilitated by —
(a)the participation of the offender’s family; and
(b)giving the offender opportunities to engage in educational programmes and in employment,
but the absence of such participation or opportunities is not to result in the offender being dealt with more severely for the offence.
…
(6)The operation of this section is affected by section 125."
Section 125 is within Division 9 of the Young Offenders Act, which deals with young persons who repeatedly commit serious offences and provides that:
"If this Division applies to the offender the court, in disposing of the matter, is to give primary consideration to the protection of the community ahead of all the other principles and matters referred to in section 46."
In my opinion the Division has no application to the present case.
The principles applicable to a Crown appeal against sentence are well‑settled. They were recently restated by this Court in R v McDonald [2000] WASCA 336 at [11] – [13] in the joint judgment of Pidgeon, Wallwork and Parker JJ as follows:
"It is necessary on any appeal in respect of sentence, whether by a sentenced prisoner or the prosecution, to show that the sentencing Judge acted on a wrong principle or misunderstood or wrongly assessed some salient feature of the evidence. The error may appear in what the sentencing Judge said or from the sentence itself which may be so excessive or inadequate as to manifest error; R v Grein [1989] WAR 178 at 180 and R v Peterson [1984] WAR 329.
As the High Court said in Lowndes v The Queen (1999) 195 CLR 665 at 671 - 72:
'The principles according to which an appellate court may interfere with such a discretionary judgment by a sentencing Judge are well established. In their application to a Crown appeal against sentence they were summarised in R v Allpass (1993) 72 A Crim R 561 and R v Clarke [1996] 2 VR 520. Of particular importance in the present case is the principle that a Court of Criminal Appeal may not substitute its own opinion for that of the sentencing Judge merely because the appellate court would have exercised its discretion in a manner different from the manner in which the sentencing Judge exercised his or her discretion. This is basic; House v The King (1936) 55 CLR 499. The discretion which the law commits to sentencing Judges is of vital importance in the administration of our system of criminal justice.'
In addition, where the Crown appeals, particular considerations apply which were considered extensively in R v Clarke [1966] 2 VR 520 at 522 and R v Allpass (1993) 72 A Crim R 561 at 562 - 3. There is no reason to explore further these well known principles in these reasons as they are accepted by both sides and are settled. Their application in this State has recently been reaffirmed by the decision in R v Churchill [2000] WASCA 230 at [23] and [24]. In addition, reference may be made to the decision of the High Court in Dinsdale v The Queen [2000] HCA 54 at [61] and [62]. In particular, it should be noted that an appellate court has an overriding discretion which may lead it to decline to intervene even if it comes to the conclusion that error has been shown in the original sentencing process. In this connection, the conduct of the Crown in the course of the original sentencing proceedings may be a matter of significance; Allpass (supra) at 562 - 3."
The range of sentences commonly imposed in intra‑familial sexual abuse cases was recently reviewed by this Court in Broome v R [1999] WASCA 202 at [9] – [16] by Miller J (with whom Ipp and Anderson JJ agreed). In that case there were numerous counts of indecent dealing with a child under the age of 16 years combined with one count of indecent assault involving three complainants. These offences were regarded as justifying a sentence of 7 to 9 years which was discounted to an effective sentence of 5 years on account of plea of guilty.
In the present case the offences against JAR included three counts of penetration of JAR's anus by the respondent's penis (counts (4), (7) and (9)) all of which occurred in the period between 30 January 1994 and 21 December 1995. The offences against LJD included two counts of penetration of LJD's anus by the respondent's penis between 18 December 1997 and 1 May 1999 (counts (13) and (16)). Finally, the same offence was committed against JRD between 22 September and 26 October 2000. While all of the offences except the last were committed by the respondent while he was a child, the last was committed by him as an adult. In my opinion this last offence would ordinarily merit a sentence in the range of 6 to 8 years.
In my opinion the offences which the respondent committed as an adult were particularly serious sexual offences. The first question to be addressed is whether the conduct involved was such that, having regard to the comparative youth of the offender the concurrent sentences of 2 years, regarded as an effective sentence of 3 years fixed by the learned sentencing Judge were commensurate with the seriousness of the offences and, in particular, an adequate judicial response to the offences which the respondent committed as an adult. This question arises with respect to five of the relevant offences.
A similar question arose in De Luce v The Queen, unreported; CCA SCt of WA; Library No 960375; 19 July 1996 in which an effective sentence of 10 years was upheld in respect of multiple offences of digital penetration, cunnilingus and indecent dealing by the offender with two step‑daughters under the age of 16 years. In that case, allowing for a plea of guilty on the fast track, an effective sentence of imprisonment for 10 years was upheld on appeal. Ipp J (with whom Wallwork and Owen JJ agreed) held that a series of sexual offences against one child alone were capable of attracting sentences totalling in the vicinity of 6 years' imprisonment. While the offender in that case was in a much greater position of trust than the respondent in this case and the respondent may be entitled to a significant discount or reduction of the sentence because of his youth at the time when many of the offences were committed, his youth is a much less relevant factor in respect of the offences he committed as an adult.
It is significant that both LJD and JRD were required to give evidence and submit to cross‑examination.
Further, LJD and JRD were siblings. In De Luce at 11 Ipp J, with whom Wallwork and Owen JJ agreed, referred to the following passage in the judgment of Anderson J in Woods v The Queen, supra, at 354 where his Honour pointed out that:
"Cases of intra family sexual assaults of young children that have attracted heavy sentences, that is, sentences of 8 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, such as the Podirsky case ((1989) 43 A Crim R 404), all of those features are involved and these will generally attract very heavy sentences. In other cases not all of the features are present."
As Ipp J (with whom Wallwork and Owen JJ agreed) pointed out in De Luce at 11 – 12, it is apparent from the cases referred to by Anderson J in Woods that a series of sexual offences, committed over a period of some years, involving digital penetration of the vagina and indecent assaults of various kinds on a single child under the age of 16 years by a person in a position of trust can lead to an overall sentence of between 6 and 8 years' imprisonment. In my opinion, it follows that if sexual penetration of the vagina of a girl or of the anus of a boy is committed or other offences with a tendency to corrupt are committed, the sentence could well be longer than 8 years.
Furthermore, Ipp J said in De Luce at 12 that:
"Anderson J's exposition also demonstrates that where more than one child is involved as a victim, the totality principle may have only a marginal effect in reduction of the overall sentence, particularly where each victim is aware of the degrading and corrupting conduct being perpetrated upon the other. As is explained in Jarvis v R, unreported; CCA SCt of WA; Library No 930341; 14 June 1993 the sentence should be proportionate to the degree of criminality involved and the severity of a term of imprisonment increases exponentially as it increases in length. Where, however, more than one child is subjected to corrupting and degrading criminal behaviour by a person in a position of trust it may well be that the criminality of the conduct increases exponentially by the very fact that serious and long term harm has been caused to more than one child. Further, the corruption of one child and the emotional trauma suffered by her or him may be exacerbated by that child becoming aware that a sibling has been seduced into participating or required to participate in similar unlawful sexual conduct."
These comments are particularly relevant to the present case, especially in the context of counts (12) and (13) when JAR and LJD were both present.
On the basis of an examination of the various authorities to which I have referred and making full allowance for the youth of the respondent when most of the offences were committed, the offences which he committed as an adult in the period between 22 September 2000 and 26 October 2000 were particularly serious offences when set against the background of the earlier offending. In my view, count (16), the penetration of LJD's anus by the respondent with his penis, was a particularly serious offence which, standing on its own, would warrant the imposition of a sentence in the range of 6 to 8 years. This is particularly so because it was a repetition of an earlier offence of the same nature the subject of count (13) also involving LJD and committed in the presence of A. In my opinion, that offence would also warrant the imposition of a sentence of 6 to 8 years.
The Crown has appealed against that disposition on two grounds:
(1)The intensive supervision order and the terms of imprisonment imposed were so inadequate as to manifest error in the exercise of the sentencing discretion.
PARTICULARS
(a)The sentences failed adequately to reflect the seriousness of the offences and the circumstances in which they were committed, including:
(i)the youth and vulnerability of the victims;
(ii) the number of victims;
(iii)the seriousness of the harm done to the victims;
(iv)the period of the offending behaviour;
(v)the absence of any significant remorse from the offender;
(vi)the disparity in age between the complainants and the respondent; and
(vii)the breach of trust involved in the commission of the offences.
(b)The sentences failed to take sufficient account of the need for personal and general deterrence.
(2)The learned sentencing Judge erred in suspending the terms of imprisonment imposed.
PARTICULARS
(a)The sentences failed adequately to reflect the seriousness of the offences and the circumstances in which they were committed, including:
(i)the youth and vulnerability of the victims;
(ii)the number of victims;
(iii)the seriousness of the harm done to the victims;
(iv)the period of the offending behaviour;
(v)the absence of any significant remorse from the offender;
(vi)the disparity in age between the complainants and the respondent; and
(vii)the breach of trust involved in the commission of the offences.
(b)The sentences failed to take sufficient account of the need for personal and general deterrence.
The appellant seeks orders that the sentences imposed be quashed and that the respondent be sentenced to such term of imprisonment as the Court thinks fit. The counts on the indictments have been separated in the notice of appeal distinguishing between anal penetrations and other offences (including oral penetrations and indecent dealing).
It is not necessary to set out in detail each of the counts in the indictments, but the history of the indictments and the way the matters have been dealt with in the District Court are of some significance.
Counsel for the appellant indicated at the hearing of this appeal that originally there was one indictment alleging offences against three complainants. By order of the District Court the indictment was severed into two separate indictments. The first indictment, 360/01, contained 16 counts. 12 counts alleged sexual offences in relation to a complainant, JAR (counts 1 to 12 inclusive), and the remaining four counts alleged offences in relation to LJD (counts 13 to 16 inclusive).
The second indictment, 403/01, alleged four counts of sexual offences in relation to a complainant, JRD.
In relation to indictment 360/01, the respondent pleaded guilty to counts 1, 2, 5, 6, 8 and 9. The respondent pleaded not guilty and went to trial on the balance of the counts. At the end of the trial the learned trial Judge directed that there was no evidence to support count 10 and there was a directed acquittal. The respondent was convicted by a jury following trial on the balance of the counts.
On the second indictment, 403/01, the Crown accepted pleas of guilty on counts 1 and 2 in full discharge of that indictment so that counts 3 and 4 were discharged.
The respondent was a juvenile when he committed all but five counts of which he was convicted. Those counts were counts 14, 15 and 16 on indictment 360/01 and counts 1 and 2 on indictment 403/01.
The facts in relation to the offences are appropriately described in the sentencing remarks of the learned trial Judge as follows:
"The offences of which you have been convicted cover three separate periods of time. The earliest offences, being counts 1 to 9, were during the period 30 January 1995 through to 21 December 1995. The complainant in respect to those charges is one (JAR), who at that time or during that time was aged between 3 and a half years and 4 and a half years. Your age at the time was between 13 and a half years and 14 and a half years.
Count 11 was alleged to have occurred between 17 December 1997 and 28 January 1998 and count 12 between 18 December 1997 and 1 May 1999.
At that time the complainant (JAR) was aged between 7 and a half and 8 years and you were then 16 to 17 years of age. Likewise count 18 involving the complainant (LJD), that offence - count 13, sorry. Count 13 is alleged to have occurred between 18 December 1997 and 1 May 1998 when that complainant was between the age of 5 and 6 years and you were then 16 years.
In relation to counts 14 and to 15 and 16, they were alleged to have occurred between 22 September 2000 and 26 October 2000 when the complainant (LJD) was 7 years of age and you were then 19 years of age and the counts 1 and 2 on the second indictment involving the complainant (JRD), they are alleged to have happened during the same period of time. At that time the complainant was in the order of 7 years of age and you were 19 years of age."
The learned trial Judge did not make any findings as to the facts upon which the charges were based, except to say that the facts in relation to the pleas of guilty were in accordance with the facts as read by the Crown and in relation to the charges, the subject of verdict by the jury, his Honour said:
"In relation to the charges on which you were found guilty by the jury, it's necessary for me to find the circumstances in which those offences were committed in conformity with the findings that the jury made of guilt. Again it's not necessary for me in the circumstances to relate the facts emanating from the evidence of the complainants in relation to those offences save to say that there was a similar pattern insofar as those offences were concerned as there was in relation to those offences to which you entered pleas of guilty."
The circumstances in relation to all offences in summary were that the respondent lived in the same street as each of the complainants and although there was a substantial age difference, the respondent used to play with the complainants in the backyard of his house. It seems that on some occasions the respondent showed these children pornographic videos, following which the incidents occurred. The indictment indicates that the respondent in some cases rubbed the penis of the child concerned and in other cases had the child rub his penis. In addition, there were a series of oral penetrations either by the respondent placing his mouth on the complainant's penis or in some cases having the complainant place his mouth on the respondent's penis. There were also a number of counts of anal penetration.
Following the trial and in his plea of mitigation counsel for the respondent invited the trial Judge to consider an intensive supervision order with a programme requirement to enable the respondent to be referred to the sex offenders treatment programme or, alternatively, to impose a short sentence so that the respondent could be returned to the community as soon as possible. It is common ground that whilst on remand the respondent had spent a total of 115 days in custody.
Counsel for the prosecution pointed out to the trial Judge that the offending against JAR ceased only when that complainant moved interstate and in relation to LJD the offending behaviour ceased only when a complaint was made to the police. The Crown submitted that only a significant custodial sentence was appropriate for the conduct involved, but that the Crown would not oppose an order for eligibility for parole.
It is important to note that whilst the bulk of the offending occurred at a time when the respondent was a juvenile, counts 14, 15 and 16 on indictment 360/01 and counts 1 and 2 on indictment 403/01 occurred at a time when the respondent was an adult.
In sentencing, his Honour, after referring to the facts, dealt with the pre‑sentence, psychiatric and psychological reports which he had commissioned. His Honour then referred to the seriousness of the conduct concerned and said:
"Offences involving sexual penetration and in circumstances where it involves children under the age of 13 and particularly in this case where it involves, some of the offences involve, a child in the order of 4 and a half to 5 years of age inevitably will bring a custodial sentence; that is a sentence of a term of imprisonment.
It would only be in very exceptional circumstances where a sentence of imprisonment would not be imposed. In the circumstances at hand there are not any of the exceptional circumstances which would warrant my consideration of anything less than a sentence of imprisonment. I am required to consider all of the alternatives available to me under the Sentencing Act and in my consideration none other than a sentence of imprisonment is appropriate.
Having come to that view your [sic] counsel in his submissions to me proposed that if a custodial sentence were to be imposed that I might consider suspending the sentence of imprisonment."
His Honour then referred to aspects favourable to the respondent and, in particular, the fact that the respondent had already participated in some counselling over the previous 12 months. He came to the conclusion that a term of 2 years' imprisonment suspended for a period of 2 years was the appropriate disposition of the matter. In addition, his Honour placed the respondent on an intensive supervision order for a term of 18 months, as I have indicated earlier in these reasons.
Having dealt with the factual circumstances surrounding the offences and the history of the two indictments, it is then necessary to turn to the legal principles surrounding the sentencing of the respondent in all of those circumstances.
The power to suspend a sentence of imprisonment is to be found in s 76 of the Sentencing Act 1995:
"76Imprisonment may be suspended
(1)A court that sentences an offender to a term of imprisonment, or to an aggregate of terms of imprisonment, of 60 months or less may order that the whole of the term or terms be suspended for a period set by the Court; but not more than 24 months.
(2)Suspended imprisonment is not to be imposed unless imprisonment for a term or terms equal to that suspended would, if it were not possible to suspend imprisonment, be appropriate in all the circumstances.
(3) Suspended imprisonment is not to be imposed if -
(a)the offence was committed when the offender was subject to an early release order (as defined in Part 13); or
(b)the offender is serving or is yet to serve a term of imprisonment that is not suspended."
It is apparent from s 76 that in this case before the Court considered the question of suspension of a term of imprisonment two decisions had to be made, namely:
(1)whether the aggregate of the terms of imprisonment will exceed 60 months; and
(2)whether a term of imprisonment equivalent to that which it is proposed to suspend is appropriate in all the circumstances -
cfDinsdale v The Queen (1999) 202 CLR 321.
In my opinion, in this case the error by the learned trial Judge occurred when his Honour decided that the provisions of s 76 of the Sentencing Act had application to this case. For reasons which will be discussed shortly, in all the circumstances of this case a prison term of 60 months or less was not appropriate. Once that conclusion was reached, the issue of suspension of the sentence did not arise.
In considering those issues it is necessary to turn to some of the history surrounding the introduction into the Criminal Code of Western Australia of the offence of aggravated sexual penetration. In Ginder v The Queen (1987) 23 A Crim R 1 Burt CJ said at 4:
"Hence it must be accepted that sexual penetration by one person of another without the consent of that person is a serious crime and that if the person so penetrated is under the age of 16 years it is even more serious. The law is, I think, clearly saying that a person who commits such a crime if he is to be sentenced should be punished and that he should be seen to have been punished. That is the general framework within which a sentence in any particular case is to be fixed."
In the same case Pidgeon J referred to the parliamentary debates when the legislation was passed and cited an extract from Hansard at 5 ‑ 6:
"The new offence provides for the maximum penalty when there are circumstances of aggravation of 20 years as distinct from life imprisonment in respect of rape and this may be an indication that the newly defined offence is not as serious. However, a reading of the Parliamentary debate shows very clearly that that was not in the mind of those moving the enactment and voting on it. I would refer to the following extract from Hansard:
'The Government expects that the new penalties will be taken by the courts to indicate Parliament's view that sexual assaults are extremely serious offences and that should be reflected in the penalties imposed.
That particularly applies to the worst cases of sexual assault, where the proposed maximum of 20 years will establish new and clear guidelines. At present, the maximum penalty for rape is life imprisonment. Actual sentencing practice, however, has deprived this maximum of any relevance or reality. It is no longer an effective maximum. Indeed, the highest penalty imposed in recent years for the worst type of rape has been 14 years.
The Government believes that although sentencing is a matter which must ultimately be left to the discretion of the courts, it is appropriate that the worst types of sexual assault, previously punished by a maximum of, effectively, up to 14 years, should be subject to a term of imprisonment towards the top end of the 20‑year range.'"
In this case, whilst many of the offences committed by the respondent were committed at a time when he was a juvenile, it remains the case that a number of them, identified earlier in these reasons, were committed when the respondent was an adult. In those cases, in my view, a substantial term of imprisonment was called for, particularly because of the age of the complainants concerned. In my opinion, the criminal law has a particular responsibility to ensure that vulnerable victims are properly protected by the imposition of deterrent sentences. No doubt that is why part of the definition of "circumstances of aggravation" in ch XXXI of the Criminal Code includes circumstances where the victim is of or over the age of 13 years and under the age of 16 years or is of or over the age of 60 years.
Where the victim is under the age of 13 years the legislation recognises that the absence of consent is not a relevant factor and, therefore, not an element of the offence, although the penalty remains the same, that is, imprisonment for 20 years.
This Court has long recognised that the offence of sexual penetration is a serious offence warranting, under normal circumstances, a substantial custodial penalty. In R v Podirsky (1989) 43 A Crim R 404 Malcolm CJ said at 411:
"While I agree with the comments of Burt CJ (in Ginder (supra)) that a 'tariff' in relation to sexual offences remains as elusive as ever, it is the case that for a single act of sexual assault under section 324D of the Code by penile [sic] penetration (still commonly called 'rape') a sentence of about 6 years is commonly imposed. It is possible that such a sentence could be reduced by mitigating factors. In the case of a single act of aggravated sexual assault by penile [sic] penetration much depends on the circumstances of aggravation, but where the relevant circumstance is that the complainant is under the age of 16 years, a sentence of about 8 years is commonly imposed. Again this could be reduced by particular mitigating factors. Where there is a series of offences of aggravated sexual assault involving a girl under 16 years there is more room for variation, but sentences within the range of 9 to 11 years are commonly imposed."
The respondent turned 18 on 2 August 1999. It is to be noted that at a time when the respondent was an adult he indecently dealt with LJD by rubbing his penis, sexually penetrated LJD by introducing his penis into the mouth of LJD and sexually penetrated LJD by inserting his penis into the anus of LJD. In addition, on indictment 403, the respondent indecently dealt with JRD by rubbing the penis of JRD and sexually penetrated JRD by penetrating his anus with his penis. Each of those offences was extremely serious, and each warranted a term of condign punishment.
In assessing the appropriate penalty, allowance had to be made for the fact that the respondent had spent 115 days in custody and, whilst on bail, had been subject to a home detention curfew.
Counsel for the respondent pointed out that the 115 days which the respondent spent in prison occurred in two different periods so that the respondent had been placed into a prison setting on two separate occasions. A further term of imprisonment would mean that the respondent will be placed into custody for yet a third time.
Counsel for the appellant brought to our attention the New Zealand case of R v N [1998] 2 NZLR 272 where a coram of five Judges considered a similar case. In that case, however, the respondent to the Crown appeal was aged 14 to 15 when the offences occurred. In addition, the respondent in that case (as was also the case here) had himself been abused as a child. The trial Judge in R v N had imposed a suspended sentence which was held by the Full Court to be inappropriate. In that case Thomas J, delivering the judgment of the Court, said at 284:
"But, again, the desirability of rehabilitation would be common to a great number, if not most, youthful sexual offenders. The 'rehabilitative imperative', to adopt the Crown Counsel's phrase, could be applied to the great majority of crimes of a sexual nature, especially those committed by younger offenders. A more specific reason would be required as to why the rehabilitation of an offender renders a custodial sentence as otherwise stipulated by Parliament inapplicable. Similarly, the view that a suitable counselling programme would be the best means of ensuring the offending did not re‑occur could apply to a wide range of young people. Such a view may be a reason to prefer a non‑custodial sentence, but it is difficult to see how it can be construed as, or expanded into, a special circumstance and the statutory presumption in favour of imprisonment displaced."
In the case presently under consideration it is important to note that whilst the respondent pleaded guilty to some charges, on other charges pleaded not guilty. The complainants JAR and LJD were required to give evidence before a Judge and jury in the District Court.
It is also important to note that in this case there were three victims, each of whom, as I have said, was very young when the offences occurred. In De Luce v The Queen, unreported; CCA SCt of WA; Library No 960375; 19 July 1996 Ipp J said at 12:
"Where, however, more than one child is subjected to corrupting and degrading criminal behaviour by a person in a position of trust it may well be that the criminality of the conduct increased exponentially by the very fact that serious and long term harm has been caused to more than one child. Further, the corruption of one child and the emotional trauma suffered by her or him may be exacerbated by that child becoming aware that a sibling has been seduced into participating or required to participate in similar unlawful sexual conduct."
Senior counsel for the respondent properly pointed out that the respondent was an older person who played with the complainants at his house, but that he was not in a position of responsibility in relation to them, in the sense of that term used in such cases as Longley v The Queen [2001] WASCA 71; R v Patrick, unreported; CCA SCt of WA; Library No 980157; 6 April 1998; Ryan v The Queen (2001) 75 ALJR 815; [2001] HCA 21. Whilst I accept that the respondent was not in the same position of trust as the offenders in each of those cases, it nonetheless remains the fact that the respondent in this case was an older person who committed the offences upon very young children in relation to whom he should have demonstrated some responsibility.
Counsel for the respondent has also brought to our attention the nature and extent of the publicity to which the respondent has been subjected since the sentence was imposed. That publicity has been both extensive and widespread and, of its nature, condemnatory of the respondent. The affidavit of Maxwell Ian Crispe sworn 21 February 2002 and the exhibits thereto, reveal the nature and extent of the adverse publicity that has surrounded this matter since the respondent was sentenced. The extent to which the Court should take cognisance of that publicity was the subject of comment by two of the Judges in Ryan v The Queen (supra). In particular, Kirby J said at [123]:
"I agree with Callinan J that in sentencing a prisoner such as the appellant, account might properly be taken of the particular features to which such a prisoner is exposed, including the additional opprobrium, adverse publicity, public humiliation and personal, social and family stress which he suffered. Thus, in resentencing the present appellant, it might be appropriate to fix a custodial sentence proper to his case taking into consideration, in a general way, the extent to which the appellant is now publicly identified as a paedophile as a result of the criminal proceedings taken against him. Where this occurs, the stigma will commonly add a significant element of shame and isolation to the prisoner and the prisoner's family. This may comprise a special burden that is incidental to the punishment imposed and connected with it. If properly based on evidence, it could, in a particular case, be just to take such considerations into account in fixing the judicial punishment required."
Callinan J expressed a similar view at [177]. Other members of the Court, however, did not express a view on the issue.
Senior counsel for the respondent contended that the sentences imposed in this case were not outside the range of sentences imposed in the Court of Criminal Appeal in recent times and referred to Dick v The Queen (1994) 75 A Crim R 303; Longley v The Queen [2001] WASCA 71 and R v Patrick, unreported; CCA SCt of WA; Library No 980157; 6 April 1998. Those cases, however, reveal very different circumstances to the case presently under consideration. In Dick's case the appellant was a member of the Christian Brothers who pleaded guilty to a number of counts involving sexual offences occurring almost 30 years earlier. None of the offences involved sexual penetration and the appellant had an unblemished character since the offending ceased. That case, of course, involved a gross and flagrant breach of trust. In that case the appellant who pleaded guilty under the fast‑track system was sentenced to a total term of 3 and a half years' imprisonment with a parole eligibility order.
In Longley v R (supra) the appellant, a teacher at a boarding school, pleaded guilty to 23 counts of unlawful and indecent dealing with young males under the age of 14 years involving six complainants. There was no allegation of sexual penetration.
The Court of Criminal Appeal dismissed an appeal against a sentence of 6 years' imprisonment with a parole order.
In R v Patrick the Court of Criminal Appeal allowed a Crown appeal against a sentence of 16 months' imprisonment, substituting a term of 3 and a half years' imprisonment in a case where the respondent was convicted of offences involving anal penetration and fellatio. The offences were committed on a complainant who suffered intellectual and physical disabilities by the respondent, a co‑worker at Paraquad Industries where the complainant worked. The respondent had taken advantage of the complainant's intellectual handicap.
An examination of each of those cases reveals the different factual circumstances in which they occurred. It is difficult to accept the respondent's contention that the sentence imposed in this case by the learned trial Judge was in conformity with earlier decisions of this Court.
Senior counsel for the respondent contends that the appellant is entitled to a discount from what would be the appropriate sentence by reason of the fact that he spent 115 days in custody, as I have said. In addition, when he was released on bail, there was a curfew condition which required him to remain at his place of residence 24 hours a day. In my view, whilst some allowance should be made for the curfew period, it does not follow that it equates to a term in custody, nor should the respondent be entitled to a scaled‑up allowance, as contended for in the course of argument, cf Macey v The Queen, unreported; CCA SCt of WA; Library No 930298; 27 May 1993; Byrne v The Queen (1998) 104 A Crim R 456 and 465.
In all of the circumstances, I am of the view that the appropriate term of imprisonment was one of 10 years. After allowing for matters in mitigation, the fact that this is a Crown appeal and the period of home detention bail, that term should be reduced to 8 years. A parole order should be made.
As to the structure of each of the sentences to achieve that result, I agree with the reasons of the Chief Justice.
The sentence should run from 7 November 2001 to allow for the period of 115 days the respondent spent in custody.
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