R v Western
[2001] WASCA 194
•27 JUNE 2001
R -v- WESTERN [2001] WASCA 194
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2001] WASCA 194 | |
| COURT OF CRIMINAL APPEAL | |||
| Case No: | CCA:31/2001 | 14 JUNE 2001 | |
| Coram: | WALLWORK J STEYTLER J MILLER J | 27/06/01 | |
| 22 | Judgment Part: | 1 of 1 | |
| Result: | Appeal allowed Sentence increased to 4-1/2 years' imprisonment | ||
| PDF Version |
| Parties: | THE QUEEN HAROLD WESTERN |
Catchwords: | Sentence Crown appeal Having a sexual relationship with a girl under the age of 16 years Offender 66 years of age Sexual relationship extending over 18 months Child aged 11 to 12 years at time of offences Offender suffering brain damage with significant cognitive impairment Whether sentence of 2 years' imprisonment manifestly inadequate |
Legislation: | Criminal Code, s 321A Criminal Law (Mentally Impaired Defendants) Act 1996, s 9 |
Case References: | Dempsey v The Queen, unreported; CCA SCt of WA; Library No 960059; 9 February 1996 Kakai v The Queen, unreported; CCA SCt of WA; Library No 990082; 23 February 1999 Lowndes v The Queen (1999) 195 CLR 665 Miller v R [1999] WASCA 66 R v Dinsdale (2000) 115 A Crim R 558 R v Grein [1989] WAR 178 R v H (1993) 66 A Crim R 505 R v Kiltie (1974) 9 SASR 452 R v Lauritson (2000) 114 A Crim R 333 R v Leucus (1995) 78 A Crim R 40 R v Tait (1979) 46 FLR 386 R v The Queen, unreported; CCA SCt of WA; Library No 970625; 21 November 1997 R v Wright (1997) 93 A Crim R 48 The Queen v Masolatti [1976] 14 SASR 124 Watson v The Queen [2000] WASCA 119 Britten v The Queen, unreported; CCA SCt of WA; Library No 940079; 21 February 1994 R v GP (1997) 93 A Crim R 351 Hogermeer v The Queen, unreported; CCA SCt of WA; Library No 970385; 8 August 1997 Indich v The Queen [1999] WASCA 146 Kirk v The Queen, unreported; CCA SCt of WA; Library No 980067; 17 February 1998 Leslie v The Queen, unreported; CCA SCt of WA; Library No 940080; 21 February 1994 Lowndes v The Queen (1999) 195 CLR 665 M v The Queen [1999] WASCA 52 Mooney [1978] 2 Crim LJ 351 R v Engert (1995) 84 A Crim R 67 R v Munro [2000] WASCA 285 R v Pinder (1992) 8 WAR 19 R v Westall, unreported; CCA SCt of WA; Library No 980287; 27 May 1998 R v Wozencroft, unreported; CCA SCt of WA; Library No 6606; 25 February 1987 Steuart v The Queen, unreported; CCA SCt of WA; Library No 950486; 15 September 1995 Symonds v The Queen, unreported; CCA SCt of WA; Library No 980616; 28 October 1998 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : COURT OF CRIMINAL APPEAL CITATION : R -v- WESTERN [2001] WASCA 194 CORAM : WALLWORK J
- STEYTLER J
MILLER J
- Appellant
AND
HAROLD WESTERN
Respondent
Catchwords:
Sentence - Crown appeal - Having a sexual relationship with a girl under the age of 16 years - Offender 66 years of age - Sexual relationship extending over 18 months - Child aged 11 to 12 years at time of offences - Offender suffering brain damage with significant cognitive impairment - Whether sentence of 2 years' imprisonment manifestly inadequate
Legislation:
Criminal Code, s 321A
Criminal Law (Mentally Impaired Defendants) Act 1996, s 9
(Page 2)
Result:
Appeal allowed
Sentence increased to 4-1/2 years' imprisonment
Representation:
Counsel:
Appellant : Mr D Dempster
Respondent : Mr K F Sleight
Solicitors:
Appellant : State Director of Public Prosecutions
Respondent : Mayberry Hammond and Co
Case(s) referred to in judgment(s):
Dempsey v The Queen, unreported; CCA SCt of WA; Library No 960059; 9 February 1996
Kakai v The Queen, unreported; CCA SCt of WA; Library No 990082; 23 February 1999
Lowndes v The Queen (1999) 195 CLR 665
Miller v The Queen [1999] WASCA 66
R v Dinsdale (2000) 115 A Crim R 558
R v Grein [1989] WAR 178
R v H (1993) 66 A Crim R 505
R v Kiltie (1974) 9 SASR 452
R v Lauritson (2000) 114 A Crim R 333
R v Leucus (1995) 78 A Crim R 40
R v Masolatti [1976] 14 SASR 124
R v Tait (1979) 46 FLR 386
R v The Queen, unreported; CCA SCt of WA; Library No 970625; 21 November 1997
R v Wright (1997) 93 A Crim R 48
Watson v The Queen [2000] WASCA 119
(Page 3)
Case(s) also cited:
Britten v The Queen, unreported; CCA SCt of WA; Library No 940079; 21 February 1994
R v GP (1997) 93 A Crim R 351
Hogermeer v The Queen, unreported; CCA SCt of WA; Library No 970385; 8 August 1997
Indich v The Queen [1999] WASCA 146
Kirk v The Queen, unreported; CCA SCt of WA; Library No 980067; 17 February 1998
Leslie v The Queen, unreported; CCA SCt of WA; Library No 940080; 21 February 1994
Lowndes v The Queen (1999) 195 CLR 665
M v The Queen [1999] WASCA 52
Mooney [1978] 2 Crim LJ 351
R v Engert (1995) 84 A Crim R 67
R v Munro [2000] WASCA 285
R v Pinder (1992) 8 WAR 19
R v Westall, unreported; CCA SCt of WA; Library No 980287; 27 May 1998
R v Wozencroft, unreported; CCA SCt of WA; Library No 6606; 25 February 1987
Steuart v The Queen, unreported; CCA SCt of WA; Library No 950486; 15 September 1995
Symonds v The Queen, unreported; CCA SCt of WA; Library No 980616; 28 October 1998
(Page 4)
1 WALLWORK J: The facts of this matter and the grounds of appeal are fully set out in the reasons for judgment of Miller J, and I will not repeat them except as is necessary.
2 As his Honour has pointed out, counsel for the respondent had told the learned Judge that the respondent was a "sad, lonely, single male person" who was inarticulate and vague in speech and recollection and who had achieved limited education …"; that the report of two psychologists had revealed that the respondent had reported that he had only completed three years of schooling, having left school at the age of 14 years. Counsel for the respondent also informed the court that the respondent had early signs of brain damage. Earlier, the respondent had worked with the Main Roads Department, in the mining industry and as a farm labourer for a number of years. At the time of his plea of guilty he was living in single men's quarters at Wongan Hills, where he had cheap accommodation.
3 The psychiatrist reported that the respondent's understanding and logic were impaired to a degree in the way which is typical of people with borderline intellectual function. He had difficulty in understanding the complexities of human interaction and the ethics involved in social structures.
4 The psychiatrist said:
"An additional factor to be considered is whether a dementing process is occurring that will make his understanding of logic and social responsibility progressively poorer. The main thinking processes cause this not merely by impulsivity but also by increasing failure to perceive that in complex issues the capacity to control one's fundamental drives becomes progressively reduced. Both these factors are well illustrated by the way that Mr Western talks about his relationship with the girl concerned."
- The psychiatrist said that the respondent was not able to generalise the particular case to the responsibility of an adult person to an 11-year-old girl.
5 The psychiatrist reported that the brain scan reported on by the visiting radiologist to Northam Hospital is significant. It shows "mild to moderate generalised cerebral atrophy". The doctor said that while this does not sound very serious, in fact the form of the atrophy is typical of a
(Page 5)
- dementing process which affects the thought processes and judgment of an individual.
6 The psychiatrist concluded that the applicant had a borderline mental capacity as defined by the psychologist's report and also limited social training. He also has a dementia which may be progressive and for which there may be no specific treatment. He concluded that the three contributing factors together were very relevant to his offence.
7 In a later report, the same psychiatrist advised:
"Nonetheless, his ability to understand the significance of his interaction with the complainant is diminished because of his low intellectual ability, his dementia, and the social environment in which he has lived. These factors reduce his capacity to be responsible for his actions."
8 A psychologist also reported:
"…., however in terms of general functioning this man is likely to demonstrate poor judgment, be unable to comprehend complex information and be disorganised in his thinking."
9 The learned sentencing Judge said:
"At the end of the day a measure of mercy is called for here, in my view, "quite plainly", having regard to your personal difficulties."
10 In R v Masolatti [1976] 14 SASR 124, at 129, Mitchell J quoted the words of Chief Justice Bray in an earlier decision of R v Kiltie (1974) 9 SASR 452, in which his Honour had discussed the sentencing of a person with retarded intelligence and who had been assessed by a psychiatrist as having "diminished responsibility". Mitchell J said:
"During the course of his remarks the learned Chief Justice said:
'Just as we recognise insanity within the meaning of the M'Naghten Rules as completely exculpatory so we should regard low intelligence and diminished responsibility falling short of such insanity, as mitigatory.' "
- Mitchell J continued:
"I respectfully agree with those remarks and although they were made in the course of a dissenting judgment, I do not find
(Page 6)
- anything in the reasons for judgment of the other members of the court to indicate a dissent from them."
11 In the decision of Kiltie (supra), Chief Justice Bray had said at 453:
"I think these must be mitigating factors. There are several purposes of punishment and several principles to be observed in sentencing, but it would be a bad day for the criminal law if the degree of moral guilt of the particular defendant in the dock were to be treated as irrelevant. The law, and above all the criminal law, should not get too far out of touch with the general feelings of the community and punishment should bear some relation to dessert. The purpose of the law is to give every man his due, says the celebrated maxim of Roman law, and Salmond adds that the civil law gives to the plaintiff, the criminal law to the defendant, what he deserves. (Salmond on Juris prudence (8th ed) (1930) p117)."
12 In his paper "Sentencing the Mentally Disordered Offender in Australia" (International Journal of Law and Psychiatry, vol 4, at 107-122, 1981), Mr Ivan Potas wrote:
"Society is more likely to understand and excuse, and therefore less likely to blame, a mentally disordered person who has committed a proscribed act than if that act were to be committed by a 'normal person'."
13 Having referred to the philosophies of Beccaria, Bentham and Montesquieu, Mr Potas quoted Sir Rupert Cross, who said:
"The infliction of punishment although tending towards crime reduction is unjustified if it is not also morally deserved." R Cross 'The English Sentencing System' 1975, 118.
- Mr Potas said, at 122:
"Modern sentencing practice has allowed into this scheme of things an individualised approach enabling factors personal to the offender as well as factors relating to the circumstances of the particular offence to be taken into account. This individualisation has been imported into the system of sentencing for reasons of justice and humanity."
(Page 7)
- "Sentencers reserve the right to mitigate a sentence as an act of mercy or compassion. They also insist that mercy be granted in a principled way and not randomly. One justification for mitigation is that general deterrence needs to be given little weight because the mentally disordered offender is not 'an appropriate medium for making an example to others'." Mooney, Full Court of Victoria, unreported, 21 June 1978.
- Professor Fox continued:
"Sir George Lush, whilst on the Victorian Supreme Court, emphasised the moral basis of this approach when he said:
'A sentence imposed with deterrence in view will not be acceptable if its retributive effect on the offender is felt to be inappropriate to his situation and to the needs of the community.' " Mooney, op. cit. see also Anderson (1981) VR 155, 160-161.
16 I cannot see any error in the approach taken by the sentencing Judge in this case.
17 I also refer to R v Grein [1989] WAR 178, where Malcolm CJ (at 180) referred to the dicta of Brennan, Deane and Gallop JJ in R v Tait (1979) 46 FLR 386 at 387 - 388, in which their Honours said:
"Although an error affecting the sentence must appear before the appellate court will intervene in an appeal either by the Crown or by a defendant, a Crown appeal raises considerations which are not present in an appeal by a defendant seeking a reduction in his sentence. Crown appeals have been described as cutting across 'time honoured concepts of criminal administration': per Barwick CJ, Peel v The Queen (1971) 125 CLR 447 at 452. A Crown appeal puts in jeopardy 'the vested interest that a man has to the freedom which is his, Whittaker v The King at 248. The freedom beyond the sentence imposed is,
(Page 8)
- for the second time, in jeopardy on a Crown appeal against sentence. It was first in jeopardy before the sentencing court."
18 I refer to the reasons of Gleeson CJ, Gaudron, McHugh, Gummow, Kirby, Hayne and Callaghan JJ in Lowndes v The Queen (1999) 195 CLR 665, at 672, where their Honours said:
"The discretion which the law commits to sentencing Judges is of vital importance in the administration of our system of criminal justice."
19 Having regard to the abovementioned reasons, even if the aggregate sentence in this case could be said to be lenient, I would dismiss the appeal as, in my view, the learned Judge took all the correct matters into account, including "a measure of mercy" and the respondent's personal difficulties.
20 STEYTLER J: I have had the advantage of reading the reasons for decision proposed to be published by Miller J. Essentially for the reasons given by his Honour, I agree that the appeal should be allowed.
21 It must be accepted that the disabilities suffered by the respondent in this case significantly reduced his culpability and warranted a sentence which was considerably more lenient than that which might otherwise have been imposed upon him for a crime so serious as this. (See R v Lauritson v The Queen (2000) 114 A Crim R 333 at 349.) However it seems to me, for the reasons enunciated by Miller J, that the sentence imposed by the sentencing Judge failed adequately to reflect that culpability which the respondent had in this case.
22 It is true that the evidence established that the respondent's ability to understand the significance of, and the complexities and ethical considerations inherent in, his interaction with the complainant was diminished, that his judgment was poor and that his general comprehension was limited. However the fact remains that he undoubtedly knew that what he was doing was wrong and he was able, if he chose, to abstain or desist from conduct of that kind. He acknowledged, in the course of his interview by the police, that he knew that the complainant was "about 13", that she was still a child and that what he had done was wrong. The record of interview discloses nothing which casts any doubt in regard to his understanding of these things. The psychiatric and psychological evidence, while pointing to factors which are undoubtedly indicative of reduced mental capability (and culpability), does not go so far as to suggest that the respondent did not understand the
(Page 9)
- nature of his wrongdoing (even if he did not fully understand its seriousness and probable consequences for the complainant) or that he was unable to abstain or desist from his conduct which, as Miller J has pointed out, endured over a very considerable period of time.
23 In these circumstances, and taking into account the other factors referred to by Miller J, I agree that there should be substituted, for the sentence imposed by the sentencing Judge, a sentence of 4-1/2 years' imprisonment, with eligibility for parole, commencing on 14 February 2001.
24 MILLER J: The respondent was charged on indictment that between 31 December 1998 and 29 May 2000 at Wongan Hills he had a sexual relationship with "T", a child under the age of 16 years. "T" was between 11 and 12 years of age during the period in question.
25 The respondent was charged under the provisions of s 321A of the Criminal Code. Section 321A(1) - (5) is in the following terms:
"(1) For the purposes of this section a person has a sexual relationship with a child under the age of 16 years if that person, on 3 or more occasions each of which is on a different day, does an act in relation to the child which would constitute a prescribed offence.
(2) In subsection (1) the act referred to need not be the same act, or constitute the same offence on each of the 3 or more occasions.
(3) A person who has a sexual relationship with a child under the age of 16 years is guilty of a crime and is liable to imprisonment for 20 years.
(4) An indictment under subsection (3) shall specify the period during which it is alleged that the sexual relationship occurred and the accused shall not be charged in the same indictment with any other offence under this chapter alleged to have been committed against the child during that period.
(5) In proceedings on an indictment charging an offence under subsection (3) it is not necessary to specify the dates, or in any other way to particularize the circumstances, of the alleged acts."
(Page 10)
26 Although the respondent was alleged to have sexually penetrated "T", he was not charged with the offence of aggravated sexual penetration without consent under s 326 of the Code. That offence also carries a maximum sentence of imprisonment of 20 years. It is relevant to note that the provisions of s 319(2)(c) of the Code provide that a child under the age of 13 years is incapable of consenting to an act which constitutes an offence against the child.
27 In the present case the respondent was clearly charged under the provisions of s 321A, not because "T" could be said to have consented to the sexual acts that occurred, but because the provisions of s 321A(5) relieve the prosecution of the obligation to specify dates or in any other way to particularise the circumstances of the acts alleged against the offender. Although in the present case "T" indicated in her statement to investigating police that she had no objection to what occurred between her and the respondent, she was deemed by the provisions of s 319(2)(c) of the Code to be incapable of consenting to the acts. The offence alleged against the respondent was however simply that of having a sexual relationship with "T" over a period of approximately 18 months. It is clear from the provisions of s 321A and s 326 of the Code that Parliament has equated the offence of having a sexual relationship with a child under the age of 16 years with that of aggravated sexual penetration without consent. Each carries a maximum term of imprisonment of 20 years.
28 In R v The Queen, unreported; CCA SCt of WA; Library No 970625; 21 November 1997, Ipp J stressed the seriousness of an offence committed agianst the provisions of s 321A of the Code. His Honour said (at 2):
"The applicant was charged with having had a sexual relationship with a female child under the age 16 years. The seriousness with which this offence is viewed by Parliament can be seen from s321A of the Criminal Code which provides that the offence carries a maximum punishment of imprisonment for 20 years. It follows that the offence is regarded as more serious than sexual penetration without consent (for which the maximum period of imprisonment is 14 years) and is considered to be the equivalent of aggravated sexual penetration without consent (for which the maximum penalty is imprisonment for 20 years).
The reasons for the gravity with which the offence of having a sexual relationship with a child under the age of 16 years is
(Page 11)
- regarded, are not difficult to discern. Children under the age of 16 years are vulnerable to seduction. They do not have the emotional maturity, experience and knowledge of life to be able properly to consent to a sexual relationship. By reason of their vulnerability they can be readily abused by unscrupulous persons. The emotional and psychological harm that a child under the age of 16 years may suffer through a sexual relationship is potentially devastating. Accordingly, the so-called consent of a child under the age of 16 years to a sexual relationship is immaterial. It is of the nature of the offence that the child will purport to consent to the relationship. Further, the absence of evidence as to the prejudicial consequences to the child of the relationship concerned, will not necessarily be regarded as reductive of the seriousness of the offence. That is because of the inherently harmful consequences of the conduct giving rise to the offence."
29 The respondent appeared before the District Court at Perth on 3 October 2000 and was dealt with by means of a fast-track plea of guilty. He was then remanded on bail for a psychological report and next came before the Court on 7 November 2000. On that day the matter was further adjourned to 20 December in order that a psychiatric report be obtained.
30 On 20 December 2000 the learned trial Judge considered it appropriate to determine whether under the provisions of s 9 of the Criminal Law (Mentally Impaired Defendants) Act 1996 the respondent was mentally fit to stand trial. That investigation was adjourned until 14 February 2001, at which time it had become clear from psychiatric reports that the respondent was fit to plead and the learned Judge so found. The indictment was then put to the respondent who pleaded guilty to it.
31 The prosecution's statement of facts indicated that the respondent was a 66-year-old male who resided in pensioner units in Wongan Hills. The complainant "T" was referred to as a "12-year-old, later a 13-year-old female child born on 16 September 1987 in Wongan Hills" but she was in fact an 11 - 12-year-old child at the relevant time. "T" had met the respondent because she regularly walked past his premises to attend school or Sunday school. Between 1 January 1999 and 28 May 2000 she visited him at his home on numerous occasions and on at least 15 occasions when so visiting, the respondent had sexual intercourse with the complainant. On about 30 occasions the respondent had kissed the complainant, sometimes coupled with other sexual conduct. On about 10
(Page 12)
- or 11 occasions the respondent had fondled or kissed the complainant on the breasts and on about 17 occasions had fondled the complainant on her vagina and inserted his finger into it.
32 The respondent had been interviewed on video on 24 June 2000 and admitted sexual contact with the complainant on numerous occasions, although denied that he was to blame for what had occurred. He indicated to investigating police that he thought the complainant to be about 13 years of age. In the course of that video record of interview the respondent was asked whether he thought what he had done was right:
"Q. What -- what do you think you've done, being a 67-year-old man and having intercourse with a young girl under the age of 13?
A. I didn't know how old she was.
Q. Yeah, but you said she was about 13.
A. Yeah.
Q. And she was just developing.
A. Yeah.
Q. So -- so if she's a child --
A. She's on the threshold of womanhood.
Q. Okay, she's on the threshold but she's still a child?
A. Yeah.
Q. Okay. So what --- you know, what do you think you've done by, as a 67-year-old, having sexual intercourse with a 13-year-old? Do you think that was the right thing to do?
A. No.
Q. Well, why did you do it?
A. I don't know why I done it."
- When asked whether there was anything in relation to the matter that he would want to say, the respondent replied as follows:
(Page 13)
- "Q. -- is there anything that you would like to say in relation to what we've discussed today? Is there anything that you'd like to say to us about ---
A. Tell her mother to keep her away from there. It's not me to blame. Don't blame me. Blame her."
33 A detailed plea in mitigation was put before the Court by counsel for the respondent. He pointed out that the respondent was a "sad, lonely, single male person" who was inarticulate and vague in speech and recollection and who had achieved limited education, leaving school at the age of 14 years. Although the submission made by counsel was that the respondent had achieved an education level of only year 3, the report of the psychologists Tina Marley and Cinzia Zuin dated 31 October 2000 reveals that in fact the respondent had reported that he only completed three years of schooling, although having left school at the age of 14 years. I take this to mean that he attended school for three years between the ages of 6 and 14 years.
34 Counsel for the respondent informed the court that the respondent had early signs of brain damage, but he had apparently worked with the Main Roads Department in the mining industry and as a farm labourer for a number of years. He was at the time of his plea living in single men's quarters in Wongan Hills, where he had cheap accommodation and a measure of support in the town.
35 The psychologists' report revealed the respondent to be in the borderline category for full scale and performance ability and the low-average category for verbal ability. The report of the psychiatrist, Dr William Walker, dated 19 December 2000, revealed that the respondent had a borderline mental capacity and limited social training. He has a dementia which may be progressive and for which there is no specific treatment available.
36 After hearing submissions the learned trial Judge remanded the respondent to 16 February 2001 when he pronounced sentence. After reciting the facts his Honour referred to the offence as a very serious one, pointing out that the girl involved was of a young age and there was a great disparity between the age of the complainant and the respondent. His Honour said:
"This is a very serious offence. The girl involved was of a young age and there was, of course, a very great disparity between your ages. Clearly, sexual activity of this kind when it
(Page 14)
- involves a young girl is likely to have some significant effect on the girl in terms commencing with a loss of innocence."
37 His Honour took the view that the seriousness of the offence was such that only a sentence of imprisonment to be served immediately could be justified. His Honour added:
"When the length of the sentence is arrived at the matters personal to you, as I have said, are plainly of very significant relevance as is your plea of guilty on the fast-track system and you're entitled to credit for that. As is apparent from the authorities the question of general deterrence becomes of less significance with somebody in a position like yours and also the sentencing aims of personal deterrence and retribution must also be given lesser weight in my view.
In relation to personal deterrence it is of course the case that in the specialist's report it is said that although from an actuarial point of view you would be categorised as being at a low medium risk of reoffending that risk ought be further reduced by taking into account your age, health and likely lack of opportunity, and it seems to me that for those reasons personal deterrence is not a matter that would be to the fore.
At the end of the day a measure of mercy is called for here in my view quite plainly having regard to your personal difficulties. In the circumstances I consider a sentence of 2 years' imprisonment would be appropriate."
38 The appellant appeals from the sentence pronounced by the learned trial Judge on the following grounds:
"The learned Judge erred in that:
1. The order made by him failed to reflect sufficiently the serious nature and circumstances of the offence and in particular:
(a) the age of the Complainant at the time the offence occurred;
(b) the age of the Respondent at the time the offence occurred;
(Page 15)
- (c) the number of occasions on which the Respondent sexually penetrated the Complainant by penetrating her vagina with his penis during the period of the sexual relationship;
(d) the number of occasions on which the Respondent sexually penetrated the Complainant by penetrating her vagina with his finger during the period of the sexual relationship;
(e) the number of occasions on which the Respondent indecently dealt with the Complainant during the period of the sexual relationship;
(f) the fact that the sexual relationship lasted for a period of almost 17 months;
(g) the lack of remorse shown by the Respondent.
- 2. The order made by him placed undue emphasis on matters personal to the Respondent and in particular the Respondent's mental disorder.
3. The order failed to sufficiently take account of the need for both general and personal deterrence.
4. The order failed to adequately punish the Respondent.
5. The sentence imposed was manifestly inadequate in all the circumstances."
39 The appellant accepts the well-established principles relating to Crown appeals against sentence, particularly those principles set out in R v Grein [1989] WAR 178 per Malcolm CJ at 179 - 180. The submission of the appellant is that the learned trial Judge failed to recognise the seriousness of the offence committed by the respondent, the seriousness of it being demonstrated by the following matters:
(a) the multiplicity of sexual acts including penile penetration;
(b) the significant age disparity between the respondent and the child;
(c) the very tender age of the child and the potential of the sexual contact to do her significant harm;
(Page 16)
- (d) the long period of time over which the sexual relationship extended;
(e) the way in which the respondent took advantage of the friendship which he had developed with the child;
(f) the respondent's knowledge that what he was doing was wrong;
(g) the absence of any remorse, evidenced by the respondent's assertion that the child was to blame;
(h) the opportunistic nature of the offence;
(i) the distress which the offence had occasioned to the child;
(j) the fact that it was only when the child complained of what had happened that the relationship ended.
40 This list of contentions was effectively taken from the factors considered in Dempsey v The Queen, unreported; CCA SCt of WA; Library No 960059; 9 February 1996, where Murray J (at 6 - 7), in dealing with an offence under s 321 of the Code, set out the relevant considerations to which attention would generally need to be given in deciding upon the imposition of a sentence in cases of this nature. His Honour said:
"Without purporting to state the relevant considerations in an exhaustive way, the following would seem to me, having regard to the terms of the Code itself and to the general law, to be factors to which attention would need generally to be given in deciding upon the imposition of sentence -
1. The nature of the conduct in question, the degree of perversion or deviance demonstrated.
2. The relative ages of the offender and the victim.
3. Whether the offender was in a position of trust or authority with respect to the victim, thus better enabling the commission of the offence.
4. Whether there was, apart from such position of trust or authority, any element of coercive or forceful behaviour on the part of the offender.
5. The circumstances of the victim and the degree to which that person was not only taken advantage of, but his or
(Page 17)
- her corruption was contributed to by the commission of the offence.
6. Whether the offence was repeated and if so over what period or periods of time so as to enable the court to consider whether it was of an isolated character or displayed recidivism on the part of the offender.
7. The degree of remorse displayed and whether any such contrition has been effectively followed up by determined efforts to achieve the offender's rehabilitation.
8. The youth of the offender.
9. The extent to which the victim's co-operation in the commission of the offences was secured by friendship or by the offer of some reward.
10. The actual impact of the commission of the offence upon the child established by a victim impact statement or otherwise.
11. Whether the offender has a prior relevant criminal history.
12. The prevalence of such offences in the community at the time and the degree to which particular circumstances indicate a heightened need to seek to achieve the protection of the community and particularly of young persons from the commission of such offences, whether with or without their consent."
- It was complained by counsel for the appellant that the learned sentencing Judge had made no reference to at least six of the factors considered by the appellant to have been relevant in this case. That complaint is borne out by his Honour's limited sentencing comments.
41 It was also submitted by the appellant that the learned sentencing Judge had placed undue emphasis upon matters personal to the respondent. Whilst it was conceded that the respondent suffered an impairment of cognitive functions and intellectual judgment, it was correctly argued that for significant mitigatory weight to be attached to that condition it must be shown to have contributed to the commission of the offence or at least reduced the moral culpability of the offender: Watson v The Queen [2000] WASCA 119 per Malcolm CJ at [88]; Miller
(Page 18)
- v The Queen [1999] WASCA 66 per Pidgeon J at [23]. It was argued that in this case there was not a particularly strong nexus between the offending behaviour and the mental condition of the respondent.
42 It was further argued that the learned sentencing Judge had failed to take account of the need for both general and personal deterrence, reference being made to R v H (1993) 66 A Crim R 505 per Davies and MacPherson JJA and Thomas J at 507, where their Honours said in relation to a case of unlawful and indecent assault which involved penetration of the vagina of a young child by a 28 year old man:
"It was a very serious attack upon an innocent child and nothing can be said in defence of it. It is a type of activity which the community views with revulsion. There is no doubt that aggression and sexual interference with young children is prevalent and it comes frequently before the courts. Such conduct has always been thought abhorrent, but community consciousness and disapproval of it has undoubtedly increased over the last decade.
...
In a case of this kind the deterrence of others from like conduct is a very important factor. This has been repeatedly emphasised: Adams and Hayward; Ex parte A-G (unreported, Court of Appeal, Qld, 18 August 1992); Davies (unreported, Court of Criminal Appeal, 28 July 1987); Thompson (unreported, Court of Appeal, 13 May 1992). The following statement is worthy of citation:
' ... the fear of severe punishment does, and will, prevent the commission of many that would have been committed if it was thought that the offender could escape without punishment, or with only a light punishment. If a court is weakly merciful, and does not impose a sentence commensurate with the seriousness of the crime, it fails in its duty to see that the sentences are such as to operate as a powerful factor to prevent the commission of such offences. On the other hand, justice and humanity both require that the previous character and conduct, and probably future life and conduct of the individual offender, and the effect of the sentence on these, should also be given the most careful consideration, although this factor is necessarily subsidiary
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- to the main considerations that determine the appropriate amount of punishment' (Cuthbert (1967) 86 WN (Pt 1) (NSW) 272 at 277-278, approving a passage in Radich [1954] NZLR 86 at 87)."
- In my view, the learned Judge did fail to stress the need for such general and (to a lesser extent in this case), personal deterrence.
43 The appellant further submitted that, given the overriding principle of proportionality and the maximum penalty for the offence, the sentence imposed by the learned sentencing Judge:
(a) failed adequately to punish the respondent; and
(b) failed to recognise that penalties for offences under s 321A(3) should be increased on a graduating scale having regard to the increasing age of the offender, whilst at the same time taking into account the disparity in age between the complainant and the offender.
- In relation to the last proposition, reliance was placed upon the decision in Kakai v The Queen, unreported; CCA SCt of WA; Library No 990082; 23 February 1999 per Malcolm CJ at 12, where his Honour said:
"I also consider that simply because the maximum penalty is doubled to 14 years upon an offender being 18 or over compared with an offender under 18, it does not follow that the sentence imposed upon an offender just 18 years old should be twice that which would be appropriate for an offender just under that age. The penalty should be increased on a graduated scale having regard to the increasing age of the offender while at the same time taking into account the disparity in age between the complainant and the offender and any other relevant circumstances."
It is true that in the present case (save for reference to age disparity) the learned Judge failed to advert to this issue.
44 Counsel for the respondent rightly pointed out that it will only be in a clear case that the court will be persuaded on a Crown appeal to intervene with the sentencing disposition of the Judge at first instance: R v Leucus (1995) 78 A Crim R 40 per Murray J at 51. Emphasis was placed upon the content of the psychological and psychiatric reports and it was submitted that general deterrence should be given little weight in the case of an offender suffering from a mental disorder or abnormality.
(Page 20)
45 In R v Lauritson (2000) 114 A Crim R 333 Malcolm CJ (at 346 - 349) analysed in detail the special way in which considerations of deterrence in punishment are approached in relation to mentally ill or impaired offenders. His Honour pointed out that mental illness is not only relevant to assessing culpability, but is also relevant to assessing the level of danger the offender presents and the appropriate way in which the offender is to be rehabilitated. His Honour accepted (at 349) that mental disorder may reduce culpability so as to affect punishment and may affect the weight to be accorded to deterrence, whether general or personal.
46 This principle can be fully accepted and is, of course, relevant to the present case. The question is whether the learned sentencing Judge took undue account of the respondent's mental impairment and imposed a sentence which was, in all the circumstances, manifestly inadequate. In my opinion that is exactly what his Honour did. There was in my view a failure to appreciate the seriousness of the nature and circumstances of the offence and inadequate recognition given to the requirement for an appropriate deterrent sentence, notwithstanding the matters personal to the respondent. Whilst it is true that mercy always has a place in the sentencing process (see R v Dinsdale (2000) 115 A Crim R 558 per Kirby J at [68]), the learned sentencing Judge appears to have adopted, in this case, a measure of mercy which was out of all proportion to the appropriate sentence which was called for.
47 What was required of the learned Judge in this case was an appreciation of the seriousness of the offence committed by the respondent in the light of the following factors set out in R v The Queen (supra) by Ipp J (at 3):
"I have elsewhere referred to the infinite variety of circumstances that may apply in cases involving sexual offences, and the offence of having a sexual relationship with a child under the age of 16 years is no exception to this rule. At the one end of the scale of severity may be the instance where the female child is almost 16 years of age and the offender is himself relatively very youthful. At the other end of the scale is the case where the female child is very young and the offender is relatively old so that there is a marked disparity in their ages. The difference in the criminal culpability of the offender in each instance is manifest. In the first example the female child would be more mature and the offender less able to appreciate the consequences of his behaviour and less able to control his own impulses. Moreover, in cases of this kind the offender
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- would not ordinarily be able to exercise the domination over the child which would readily occur when the offender is an adult of mature years, sophistication and experience (and perhaps of relative wealth). In the first example, the individuals concerned might well believe that their relationship could lead, eventually, to an appropriate permanent relationship between them, countenanced by the law, when the child reached the age of 16. On the other hand, in the second example, where the offender is a man in his late 50's and married (such as the applicant in the present case), there would be no prospect of any ongoing relationship and the inference would arise that the offender would be taking advantage of the child purely for his own pleasure and self-indulgence. Other factors bearing on the potential seriousness of the offence are the length of the relationship, the manner in which it is carried on, the nature of the sexual acts performed, and the degree of care and consideration for the child demonstrated by the offender."
48 Having regard to the maximum sentence applicable to this offence there should, in my view, have been a very substantial starting point for the sentence. Unfortunately the learned sentencing Judge did not indicate a starting point but dealt only with the ultimate sentence. The starting point should in my view have been imprisonment for 10 years. Given the substantial mitigatory factors present in the case, which included the respondent's plea of guilty and (more importantly) age and degree of mental impairment, a very substantial discount was required to reflect those factors. That discount should in my view have been 50 per cent, resulting in an effective sentence of 5 years' imprisonment. However, it is necessary to take into account the double jeopardy involved in a Crown appeal. As Gleeson CJ put it in R v Wright (1997) 93 A Crim R 48 at 54:
"Whenever a Crown appeal against sentence is allowed, the new sentence imposed must take into account the double jeopardy involved in a Crown appeal - the distress occasioned to the respondent by twice being put in jeopardy of his freedom - and accordingly the new sentence is usually discounted. The extent of the discount varies according to the individual circumstances of the particular case, generally by reference to the respondent's own subjective circumstances."
- To accommodate this requirement I would further reduce the effective sentence to 4-1/2 years' imprisonment.
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49 Accordingly, I would allow the appeal, set aside the sentence imposed by the learned sentencing Judge and substitute for it a sentence of 4-1/2 years' imprisonment with eligibility for parole. That sentence I would date from 14 February 2001.
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