R v Millar

[2001] WASCA 54

R -v- MILLAR [2001] WASCA 54

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2001] WASCA 54
Court:	COURT OF CRIMINAL APPEAL
Case No:	CCA:154/2000	Heard:	23 OCTOBER 2000
Coram:	KENNEDY J PIDGEON J MURRAY J	Delivered:	7/03/01
No of pages:	14	Judgment Part:	1 of 1
Result:	Appeal allowed Sentences increased
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Parties:	THE QUEEN ADAM DAVID MILLAR
Catchwords:	Criminal law and procedure Sentencing Two counts of sexual penetration of a child and one count of aggravated sexual penetration without consent Complainant aged 13 years, respondent aged 23 Crown appeal Effective head sentence of 3 years' imprisonment, directed to be served concurrently with a prior sentence Sentences inadequate Effective head sentence of 5 years substituted
Legislation:	Nil
Case References:	Dempsey v The Queen, unreported; CCA SCt of WA; Library No 960059; 9 February 1996 Everett v The Queen (1994) 181 CLR 295 Lowndes v The Queen (1999) 195 CLR 665 R v Allpass (1993) 72 A Crim R 561 R v Clarke [1996] 2 VR 520 Attorney-General v Tichy (1982) 30 SASR 84 Dinsdale v The Queen (2000) 74 ALJR 1538 House v The King (1936) 55 CLR 499 Ling v The Queen [2000] WASCA 129 R v B (1993) 68 A Crim R 547 R v Clark [2000] WASCA 229 R v Grein [1989] WAR 178 R v Podirsky (1989) 43 A Crim R 404 R v Tait (1979) 46 FLR 386

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : COURT OF CRIMINAL APPEAL CITATION : R -v- MILLAR [2001] WASCA 54 CORAM : KENNEDY J

PIDGEON J
MURRAY J

HEARD : 23 OCTOBER 2000 DELIVERED : 7 MARCH 2001 FILE NO/S : CCA 154 of 2000 BETWEEN : THE QUEEN

Appellant

AND

ADAM DAVID MILLAR
Respondent

Catchwords:

Criminal law and procedure - Sentencing - Two counts of sexual penetration of a child and one count of aggravated sexual penetration without consent - Complainant aged 13 years, respondent aged 23 - Crown appeal - Effective head sentence of 3 years' imprisonment, directed to be served concurrently with a prior sentence - Sentences inadequate - Effective head sentence of 5 years substituted

Legislation:

Nil

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Result:

Appeal allowed

Sentences increased

Representation:

Counsel:

Appellant : Ms J A Girdham
Respondent : Mr A E Monisse

Solicitors:

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

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

Dempsey v The Queen, unreported; CCA SCt of WA; Library No 960059; 9 February 1996
Everett v The Queen (1994) 181 CLR 295
Lowndes v The Queen (1999) 195 CLR 665
R v Allpass (1993) 72 A Crim R 561
R v Clarke [1996] 2 VR 520

Case(s) also cited:

Attorney-General v Tichy (1982) 30 SASR 84
Dinsdale v The Queen (2000) 74 ALJR 1538
House v The King (1936) 55 CLR 499
Ling v The Queen [2000] WASCA 129
R v B (1993) 68 A Crim R 547
R v Clark [2000] WASCA 229
R v Grein [1989] WAR 178
R v Podirsky (1989) 43 A Crim R 404
R v Tait (1979) 46 FLR 386



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1 KENNEDY J: On 28 April 2000, the respondent was convicted in the District Court on two counts of having sexually penetrated a girl of 13 years and one count of aggravated sexual penetration of the same girl without her consent. These offences had all been committed on 31 May 1998. The respondent was sentenced on 9 June 2000 to an effective head sentence of 3 years' imprisonment. Her Honour directed that this term should be served concurrently with sentences of imprisonment which the respondent was already serving. She ordered that the respondent be eligible for parole.

2 The learned sentencing Judge had the advantage of an extensive pre-sentence report, together with a psychological report and a psychiatric report. She provided very detailed sentencing remarks, on which the following summary is based, augmented by material taken from the reports just referred to.

3 The complainant, who was then living with her father, in May 1998, visited her mother for a weekend at her home in Waroona. The respondent there met the complainant At this time, the complainant was 13 years of age and the respondent was aged 23. During the weekend, a number of young people, some of whom were in their early teens, were socialising together. The respondent was participating in these activities. There was said to be general "larking" about, which included some play fighting. During this time, according to some of the witnesses, the respondent appeared to target the complainant.

4 On the Sunday evening, the respondent, the complainant, and a young friend of the complainant, were sitting on a tarpaulin in the back yard of the mother's house. The complainant's mother called to both her and her friend to come inside the house, telling them that they had to go to bed. They both went inside; but it appears that the complainant told her friend that she wanted to go outside again for a minute when the others had gone to bed, because she did not want to seem rude. The respondent and the complainant ended up sitting together on the tarpaulin. After a while the respondent started kissing the complainant and he then put his hand down her pants and penetrated her vagina with a finger. This gave rise to the first count in the indictment. Shortly afterwards, he penetrated her vagina with his penis. This gave rise to the second count in the indictment. These activities ceased when a light was switched on in the house, illuminating to some extent the area where the respondent and the complainant were. Clearly, the jury were not satisfied that the complainant had not consented to the digital and to the penile penetration.

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However, equally clearly, they rejected the respondent's defence that he believed the complainant to be 16 years of age at the time.

5 After this interruption, the complainant's evidence was that she was trying to put on her shorts when the respondent asked her to stay with him. She declined, and she claimed that he then took hold of her wrist and forced her back onto the ground. He penetrated her vagina once again with his penis to the stage of ejaculation. Her Honour, on the basis of the jury's verdict, found that the complainant had made it clear to the respondent that she did not wish to have sex with him on this occasion, but that he had ignored her wishes. After this incident, the complainant went back inside the house again and told her friend what had happened.

6 Her Honour considered in detail the matters personal to the respondent. His developmental milestones were significantly delayed after what was accepted as being a difficult birth. He did not walk until he was three or four years of age. His parents separated when he was four, and his mother had then entered into another relationship. His step-father became emotionally and physically abusive towards the respondent and his mother, and it appears that each of them was hospitalised on occasions as a result of this abuse. His mother left the relationship after about 12 years, and she then went to live with her own mother. It appears that, thereafter, the step-father emotionally blackmailed the respondent, causing him to return to live with the step-father on occasions. The step-father, the respondent claimed, introduced him to a life of crime and in fact schooled him in that life, teaching him, for example, how to cut glass and to break into premises. He also introduced the respondent to illicit substances. His step-father subsequently served a term of imprisonment.

7 At school, the respondent experienced academic difficulties. It is apparent that he suffered from attention deficit hyperactivity disorder, for which he received treatment at the Selby and Warwick Child and Adolescent Clinics. He was admitted to Graylands Hospital overnight on three occasions, with a diagnosis of anti-social personality disorder and situational crisis. Her Honour, it should be noted, regarded the respondent as being immature for his age.

8 The respondent has been involved in two serious relationships, both of which have broken up, resulting in the respondent suffering depression and engaging in self destructive behaviour. The second relationship produced two children.

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9 The respondent's mother has now remarried, but he has felt that he was not permitted to go to live in Hall's Creek with his mother and her husband. This is said to have left him with feelings of abandonment and resentfulness. However, since he has been in custody on this occasion, his relationship with his mother has strengthened, and both his mother and his grandmother have been very supportive of him.

10 A psychological report refers to an incident of sexual molestation when, at the age of 13, the respondent was sexually abused by a social worker who worked with "street kids". His substance abuse began after this event. He has used cannabis and, on some occasions, heroin. He became heavily involved with amphetamines when he was about 18 years of age. It appears that his present psychological condition could be the result of his abuse of drugs over the years. The psychological report indicates that he has little insight into his own behaviour, although he does concede that the complainant was too young to have sex with him. He was assessed in this report as being at medium risk of re-offending, although the pre-sentence report assessed him as being at high risk of re-offending. He was, nevertheless, regarded as being suitable to undertake the sexual offenders' treatment programme, and the learned sentencing Judge regarded him as suitable for parole.

11 The respondent has an extensive record of convictions. It contains no other sexual offences, but it does contain a number of convictions for breaking and entering, for burglaries, for stealing and for minor drug offences. Her Honour took the view that the respondent's previous record of convictions was more readily explained by the influence of his step-father than were the present offences, but she considered that it may be the case that the sexual abuse to which the respondent was subjected when he was a young boy has impacted upon his ability to relate in a mature and thoughtful way when it came to sexual relationships.

12 Her Honour indicated that there had been minimal force used by the respondent in the perpetration of the offences and she was of the view that it was more an assertion of his will over hers that prevailed, particularly, she said, in relation to the third count. It would seem that her Honour did not accept the evidence of the complainant on this issue. This must have influenced the penalty she imposed. However, it must not be overlooked that the third count involved sexual penetration without the consent of the complainant.

13 A victim impact statement outlined the considerable effect that the complainant claimed the respondent's behaviour had on her. She now

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finds it difficult to trust boys, she has nightmares and flashbacks to the time when the applicant took advantage of her, and she has suffered from an eating disorder. Although her Honour referred to the impact of the offences upon the complainant, she suggested that there was "no real injury" caused to her, although the respondent did cause her some discomfort, and the third act of penetration had resulted in some bruising to her vagina. There were no threats made to the complainant, however, and there was no emotional blackmail of the sort that sometimes accompanies these offences. Nor, her Honour said, was there any evidence of the corruption of a young child. It was difficult to see, she indicated, whether there will be any lasting trauma to the complainant, although her memories of this very unfortunate sexual experience are likely to remain for some time. A particularly aggravating feature of the offences was the difference in ages of the complainant and the respondent. Nevertheless, it was her Honour's assessment of the respondent that the complainant was somewhat attracted to him, and perhaps flattered by the attention that he was showing her, although she added that in no way diminished the gravity of the offences, and in particular the gravity of the third offence.

14 Her Honour sentenced the respondent to 12 months' imprisonment for the digital penetration, to 18 months' imprisonment for the first count of penile penetration and to 3 years' imprisonment for the count of sexual penetration without consent. Taking into account all of the factors to which her Honour had referred, including the existing sentences being served by the respondent, she was of the view that the sentences imposed by her should be served concurrently with one another and concurrently with the existing sentences. Her Honour directed that the respondent be eligible for release on parole.

15 It should be noted that the offences now under consideration predated the imposition of the sentences which the respondent was already serving at the time of his sentencing. It appears that those sentences amounted to an effective sentence of 16 months which he commenced to serve on 26 August 1999 and which was augmented by a further sentence of 1 month imposed on 10 December 1999. The respondent would have been eligible for parole early in February 2000. He was not, however, granted parole on the previous sentences, although he was initially granted bail in anticipation of his being paroled. He would have served two-thirds of his sentence early in August 2000. The consequence of the learned sentencing Judge directing that the sentences be served concurrently rather than that they be served cumulatively was that the respondent benefited to the extent of almost 2 months. On the

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other hand, he did not receive the benefit of parole in respect of the earlier sentences. His earliest release date now is 8 June 2001, although whether he will be released at that time will depend upon the decision of the Parole Board.

16 The appellant has appealed against the sentences upon the following grounds:

"1. The learned sentencing Judge erred in failing to have regard to the need for specific or general deterrence in respect of such offences.

2. The learned sentencing Judge erred in imposing a sentence which was manifestly inadequate in all the circumstances of the offence.


Particulars
(a) The sentences failed to adequately reflect the seriousness of the offences and the circumstances in which they were committed, including:

(i) the significant age difference between the complainant and the respondent;

(ii) the element of coercive or forceful behaviour on the part of the respondent; and

(iii) the distress and humiliation suffered by the complainant as a result of the offences.


(b) The learned sentencing Judge failed to have adequate regard to factors relevant to the respondent, in particular:

(i) his lack of remorse; and

(ii) his attitude of continuing disobedience to the law.

(c) The learned sentencing Judge failed to have sufficient regard to the maximum penalty available for the offences under sections 326 and 321 of the Criminal Code.

(Page 8)

3. The learned sentencing Judge erred in making the sentences imposed concurrent with the sentence already being served in that the offences for which the respondent was being sentenced on 9 June 2000 involved the invasion of a different legally protected interest."

17 In Lowndes v The Queen (1999) 195 CLR 665, at 671 - 672, the High Court said:

"The principles according to which an appellate court may interfere with …. 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 a 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."

See also R v Allpass (1993) 72 A Crim R 561, at 562 - 563, and R v Clarke [1996] 2 VR 520, at 522.

18 In my opinion, this is a case where the sentences reveal "such manifest inadequacy or inconsistency in sentencing standards as to constitute error in principle" - see Everett v The Queen (1994) 181 CLR 295, at 300, 306.

19 In relation to ground 1 of the Crown's appeal, the mere fact that a sentencing Judge does not refer expressly to a particular factor in the sentencing process does not necessarily mean that that factor has been ignored. In this case, her Honour had the benefit of presiding at the trial of the respondent, which enabled her to see and hear the respondent give his evidence and to make her own assessment of him. The fact that her Honour clearly preferred the evidence of the applicant to that of the complainant in a number of important respects is of significance in considering the terms of imprisonment which her Honour imposed. However, her concentration upon the background and antecedents of the respondent appears to have resulted in her overlooking the purposes underlying the provisions of the Criminal Code making it a circumstance

(Page 9)

of aggravation, and increasing the maximum penalty, where the victim is of or over the age of 13 years and under the age of 16 years - see the definition of "circumstances of aggravation" in s 319(1) and s 321. It must be stressed once again that the first two counts on which the applicant was convicted were offences designed to protect juveniles, not only from those who might seek to take advantage of them, but also from themselves. This was a case in which there was an age difference of 10 years, and the fact that the complainant was, as her Honour found, somewhat attracted to the applicant and perhaps flattered by the attention he was showing her, demonstrated a need to protect the complainant from herself. Here, what were, on the basis of the verdicts of the jury, possibly consensual acts led on to the act of sexual penetration without consent. There was, in my view, a need to impose deterrent sentences and, in particular, in relation to the third count.

20 The Crown sought to emphasise the element of coercion or forceful behaviour on the part of the respondent. As I have already indicated, however, it does not appear that the learned sentencing Judge accepted in its entirety the evidence of the complainant on this point. She did, however, refer to the respondent's asserting his will over hers, so that forceful behaviour on his part was not necessary. The verdict of guilty on the third count makes it clear that the final act was done without the consent of the complainant.

21 In my opinion, the sentences imposed upon the respondent being manifestly inadequate, I would quash those sentences and substitute the sentences which Murray J proposes, for the reasons which his Honour gives.

22 PIDGEON J: I agree with the reasons of Kennedy and Murray JJ and the orders proposed.

23 MURRAY J: In this matter I have had the considerable advantage of reading in draft the judgment published by Kennedy J. His Honour has carefully analysed the various facts and circumstances relevant to the passing of sentence for the three offences of which the respondent was convicted. There is nothing which I think needs to be added to that analysis and there is nothing in it with which I would wish to take issue.

24 However, as to the third offence, the aggravated sexual assault involving vaginal penetration of the child without her consent, while her Honour the sentencing Judge commented that the child had suffered

(Page 10)

no real physical injury and it was difficult to see whether the emotional and psychological trauma she had suffered would be lasting, she did accept that such harm had been done and expressed the hope that the planned continuation of counselling would cause the child "hopefully in time" to "come to terms with what you have done with her and hopefully be able to have a decent equal sort of relationship with a boy or a man in due course." That seems to me to constitute a significant finding in relation to the nature of the third offence and its impact upon the victim which should have a bearing upon the sentence to be imposed. It is an expression of the nature of the offence in the particular circumstances of its commission that it had that result.

25 It is certainly right, as her Honour found, particularly in the context of the commission of the two offences of sexual penetration of a child between the ages of 13 and 16, given that the jury did not find those acts of penetration to be without the child's consent and that she had placed herself in the situation where the offences might be committed by returning to the place outside the house where the respondent was, that "there is no evidence of corruption of a young child". However, her Honour did note the difference in the ages of the child and the respondent and she concluded that the child "was somewhat attracted to [the respondent] and perhaps flattered by the attention that you were showing her". Her Honour added, rightly in my respectful opinion, "that in no way diminishes the gravity of these offences, particularly the third offence."

26 As to the circumstances of the commission of that offence, whilst her Honour, I agree, does not appear to have accepted fully the evidence of the child, an observation prompted by her Honour's remark that "there was minimal force used and it seems that it was more an exertion of your will over hers that prevailed, particularly in relation to count 3", her Honour did find the facts to be as follows:

"Christine's evidence was that she was trying to put pants and her tracksuit pants back on and you asked her to stay. She said no and you took hold of her wrist and got her back onto the ground. You then penetrated her again to the point of ejaculation. that is count 3 on the charge sheet or indictment. Christine made it perfectly clear to you that she did not want to have sex with you on this third occasion. However, you ignored her wishes, which on the evidence I find were made plain to you, and went ahead. You did this for your own sexual gratification.

(Page 11)

Now, even if Christine had been a willing party to having sex with you before the interruption, that doesn't mean that you were entitled to have your way with her after she had told you that she didn't want to continue. By continuing you showed a total lack of respect for her and for her wishes. After the third penetration Christine went back inside and told her friend Trudy, and it seems the next day her older sister found out and eventually the police were told."

It would appear that her Honour has accepted that what she described as the "minimal force used" constituted forcing the complainant back onto the ground, despite the child's refusal to stay with the respondent, and then sexual intercourse to ejaculation, an act which her Honour found hurt the child and caused bruising to her vagina.

27 The alternative offence of sexually penetrating a child between the ages of 13 and 16 of which the jury convicted the respondent upon the first two counts in the indictment, in the circumstances of this case, by s 321(7)(a) of the Code, attracts a maximum penalty of 14 years imprisonment. Also, as her Honour noted, the offence of sexual penetration without consent aggravated by the age of the child was punishable under s 326 of the Code by imprisonment for up to 20 years. As Kennedy J has noted, the concurrent sentences imposed were, for the offence of digital penetration of the child's vagina, 12 months imprisonment, for the offence of penile penetration of the child's vagina, 18 months imprisonment and for the third offence, the aggravated sexual assault, 3 years imprisonment.

28 Kennedy J has set out the grounds of appeal. In my opinion, with respect for the contrary view, the first and second grounds of appeal are made out. I would therefore allow the appeal, although I would not uphold the third ground in relation to concurrency with the sentences already being served. In my opinion this was a case where the miscarriage of the sentencing discretion is demonstrated, not by the omission of the sentencing Judge to give consideration to the various relevant factors, both aggravating and mitigating in their effect, but by the manifest inadequacy of each of the sentences imposed.

29 In the first place the personal circumstances of the respondent and his history, while they no doubt attracted sympathy, carried little power to mitigate punishment. While it was no doubt the case that the respondent might be a suitable subject for remedial and rehabilitative programmes in a prison setting, in my respectful opinion it remained the responsibility of

(Page 12)

the court in this case to impose punishments which were properly proportionate to the seriousness of the offences committed and therefore carried in them an appropriate element of both particular and general deterrence. Apart from the general deterrence of this unfortunately all too prevalent offence, there is no doubt, I think, in the circumstances outlined by Kennedy J and found by the sentencing Judge, that the respondent needed to have brought home to him that his behaviour was not only unlawful, but criminally inappropriate and unacceptable and harmful to the victim.

30 More particularly as to the offences committed, in Dempsey v The Queen, unreported; CCA SCt of WA; Library No 960059; 9 February 1996 this Court, particularly in the judgment of Kennedy J, with which Wallwork J and I agreed, endeavoured to give some general guidance in respect of those matters or circumstances which would be generally significant in approaching the task of passing sentence for offences of sexual penetration or attempted sexual penetration of children. In my judgment in that case, I set out a series of matters which would be among those which might have a significant impact on the sentence to be imposed. What was written in that case need not be repeated here.

31 I need only say, I think, that to my mind the significant elements of this case to which I think it is apparent her Honour paid insufficient regard, were the youth of the complainant, the significant 10 year age difference between the respondent and her, the fact that the respondent appreciated that the child was too young to be able to lawfully give her consent to what occurred, and the fact that in her early teenage years she was, as the sentencing Judge noted, no doubt impressed by the interest in her and attention paid to her by a person she undoubtedly regarded as a mature man of 23 years of age. It must not be overlooked that a central purpose of making sexual activity a punishable criminal offence in circumstances such as these is to protect from misjudgment which may be productive of serious harm, young persons who lack the maturity in the eyes of the law to give an effective consent to what occurs. It has been said often enough that such offences are concerned to protect the victim against himself or herself by placing the onus upon those who might offend in this way not to take advantage of the immaturity and apparent acquiescence of the child concerned.

32 As to the third offence, the aggravated sexual assault by the penile penetration of the child without her consent, there was in my opinion, little in the circumstances described by the sentencing Judge and discussed above, and little in the circumstances personal to the

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respondent, to in any way mitigate punishment. The respondent maintained at trial that he had the consent of the child, a proposition rejected by the jury. When the opportunity presented itself he simply persisted with his desire to have sexual intercourse with the child for his own gratification when, as he well knew, she wished to have no further contact with him. There was little to mitigate punishment in the fact that it required relatively little force for him to succeed in achieving his object. It was the commission of this offence, in particular, which caused significant psychological harm to the complainant and yet the respondent displayed no concern or empathy for the victim and no contrition for the offending, such that his lack of insight into his offending behaviour caused concern on the part of those who reported to the court upon him that he might offend in a like manner in future.

33 I have said that in my opinion each of the sentences imposed was manifestly inadequate. I perceive no error in the decision of the sentencing Judge to impose the sentences concurrently and, although in my opinion it is strictly correct that, as the appellant argues, there was no justification for imposing the sentences to be served concurrently with the unexpired portion of previous sentences, I would not allow the appeal on this ground. When these sentences were imposed on 9 June 2000 merely about two months remained to be served of the previous term. It would, in my view, be wrong for this Court on a Crown appeal to conclude that her Honour's order in respect of concurrency of service of sentences revealed appellable error.

34 However, having concluded that the three sentences her Honour imposed were in themselves and collectively manifestly inadequate, it would fall to me to pass those sentences which, in my view, her Honour should have fixed. I approach that task bearing firmly in mind that this is a Crown appeal and that what has come to be called the principle of double jeopardy inherent in such appeals should cause an appellate court embarking upon the task of resentencing to modify the punishment to the lower end of the scale of proportionality so far as it may do so.

35 I would quash the sentences imposed by the sentencing Judge and for the offence of digital penetration, which was that found in respect of count 1 on the indictment, I would substitute a sentence of 18 months imprisonment. For the second offence, the act of penile penetration, I think it right that it should be regarded more seriously and I would impose a sentence of 2-1/2 years imprisonment. For the aggravated sexual penetration without consent I would substitute a sentence of 5 years' imprisonment. As I have said I would not interfere with her Honour's

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orders that those sentences be served concurrently, treating the whole incident as the one transaction, and that as they would commence to be served on 9 June 2000, to some extent they would be served concurrently with the unexpired portion of a previous term.