R v Wilson
[2000] WASCA 209
•1 AUGUST 2000
R -v- WILSON [2000] WASCA 209
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2000] WASCA 209 | |
| Case No: | CCA:74/2000 | 1 AUGUST 2000 | |
| Coram: | IPP J WALLWORK J PARKER J | 1/08/00 | |
| 10 | Judgment Part: | 1 of 1 | |
| Result: | Appeal dismissed | ||
| PDF Version |
| Parties: | THE QUEEN GRAHAM WILSON |
Catchwords: | Criminal law Crown appeal against sentence Respondent pleaded guilty to two counts of unlawful detention and three counts of assault occasioning bodily harm committed against his sons Sentence, in effect, of 3 years' imprisonment and $300 fine imposed Whether totality principle correctly applied Whether due consideration given to general and personal deterrence in sentencing A number of mitigatory factors relevant to sentence exist Sentence appropriate in the circumstances Turns on own facts |
Legislation: | Nil |
Case References: | Bowman (1993) 69 A Crim R 530 Leucas (1995) 78 A Crim R 51 Nil |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA CITATION : R -v- WILSON [2000] WASCA 209 CORAM : IPP J
- WALLWORK J
PARKER J
- Appellant
AND
GRAHAM WILSON
Respondent
Catchwords:
Criminal law - Crown appeal against sentence - Respondent pleaded guilty to two counts of unlawful detention and three counts of assault occasioning bodily harm committed against his sons - Sentence, in effect, of 3 years' imprisonment and $300 fine imposed - Whether totality principle correctly applied - Whether due consideration given to general and personal deterrence in sentencing - A number of mitigatory factors relevant to sentence exist - Sentence appropriate in the circumstances - Turns on own facts
Legislation:
Nil
Result:
Appeal dismissed
(Page 2)
Representation:
Counsel:
Appellant : Mr R E Cock QC & Mr J R N Rowe
Respondent : Mr M T Trowell QC & Mr T M Andrews
Solicitors:
Appellant : State Director of Public Prosecutions
Respondent : Mark Andrews & Associates
Case(s) referred to in judgment(s):
Bowman (1993) 69 A Crim R 530
Leucas (1995) 78 A Crim R 51
Case(s) also cited:
Nil
(Page 3)
1 IPP J: This is a Crown appeal against sentence.
2 The respondent was convicted on his own pleas of guilty of three counts of assault occasioning bodily harm and two counts of unlawful detention.
3 The first count concerned the respondent's son, Matthew. In 1987, when Matthew was about 13 years of age, the respondent struck him three times on the hands. The respondent, who was then a serving police officer, used his police-issue belt. Excessive force was used and Matthew's nails bled afterwards.
4 The remaining four counts concerned the respondent's second son, Aaron. Count 2 was a count of unlawful detention. When Aaron was 11, or just turned 12 years of age, the respondent handcuffed him to his bed for an extended period of time, deprived him of food and forced him to urinate in his bedroom with the use of a bag in the wardrobe. Count 3 was the second count of unlawful detention. In 1987, as punishment for leaving the house at night with his younger sister, the respondent gave Aaron a beating and handcuffed him. The beating involved the boy's back and legs. The handcuffing involved handcuffing him to a tap in the backyard with both hands behind him. When the boy cried out and screamed the respondent put an aluminium bucket over his head. He then took him to a clothesline and handcuffed him again with both hands above his head and wound up the clothesline so that Aaron's feet were only just able to grip the ground. The respondent then hosed him with hard water pressure for about 5 minutes. The terrifying aspect of this conduct was exacerbated by reason of the fact that this occurred in the early hours of the morning.
5 Count 4 involved a severe beating given by the respondent to Aaron, also in 1987. The respondent was then out of control. He used excessive force and deliberately tried to hurt his son. He hit Aaron with a belt until the boy wet himself in fear. Aaron estimated that he was struck approximately 20 times including being kicked in the testicles by the respondent.
6 Count 5 involved another severe beating to Aaron, as a result of which he was given into care. The respondent was in a rage and again tried to hurt the boy by using a strap or belt while he lay curled up in a bed during the assault. The respondent also punched his son in the eye and the lip and kicked him in the testicles.
(Page 4)
7 In sentencing the respondent the learned sentencing Judge stated that before any consideration of factors of totality and concurrency would apply he was of the view that appropriate sentences for the offences against Aaron would be as follows: a sentence of 2 years' imprisonment in relation to count 2; a sentence of 2 years' imprisonment in relation to count 3; a sentence of 12 months' imprisonment in relation to count 4 and a sentence of 12 months' imprisonment in relation to count 5.
8 As I understood his Honour's sentencing remarks, these notional sentences took into account the matters personal to the respondent and his pleas of guilty. His Honour then applied the totality principle to these notional sentences by utilising his powers to make some of the sentences concurrent. He directed that the sentences for counts 2 and 4 be served cumulatively, with count 2 as the first sentence, that is he sentenced the respondent to 2 years' imprisonment in relation to count 2 and to 12 months' imprisonment in relation to count 4 and directed that those sentences be served cumulatively. In relation to count 3 he sentenced the respondent to 2 years' imprisonment but directed that that be served concurrently with count 2. In relation to count 5 his Honour sentenced the respondent to 12 months' imprisonment and directed that that be served concurrently with count 2.
9 As his Honour observed, the total effect of all the sentences was then one of 3 years' imprisonment in relation to counts 2, 3, 4 and 5. In relation to count 1 he fined the respondent $300. He directed that the respondent be eligible for parole.
10 The Crown appeals on three grounds. Firstly, it is said that his Honour incorrectly applied or failed to apply the correct principles relating to cumulative and concurrent sentences. Secondly, it is said that the sentence failed to reflect adequately the need for general deterrence. Thirdly, it is said that the sentence imposed was manifestly inadequate in all of the circumstances.
11 In my view there is no substance whatever in the first ground of appeal. The proper application of the totality principle arises once the Court has determined the sentences which should be imposed for the individual offences of which the offender has been convicted; Bowman (1993) 69 A Crim R 530. That having been done, as Malcolm CJ observed in that case (at 537):
"The court must then examine the cumulative effect of such sentences and 'ask itself what is the appropriate sentence for all
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- the offences' … [I]t was then the final duty of the sentencer to make sure that the totality of the consecutive sentences was not excessive."
12 It is true that where offences are of a different character and involve different circumstances in their commission, they will usually be regarded as separate transactions and will attract cumulative sentences, but in determining whether cumulative sentences are to be imposed, the sentencing Judge must bear in mind the totality principle.
13 This is precisely what his Honour did in this case. After taking a final view of all the circumstances, the learned Judge determined that while some of the sentences should be served cumulatively, others should be served concurrently. In so doing, he applied the totality principle in an unexceptionable manner. His Honour's approach was strictly in accord with proper sentencing principles.
14 The remaining two grounds are in reality one; namely, that the sentence imposed was manifestly inadequate. The submission that the sentence failed to reflect adequately the need for general deterrence is in reality a particular of this ground.
15 The learned sentencing Judge referred expressly to certain aggravating features of the respondent's offences. The very harsh treatment of Aaron must have had a significant effect on the boy. It was plain from the victim impact statements from the two complainants that each of them had had "significant troubles" to date. His Honour observed that, particularly in relation to Aaron, the seriousness and the level of violence that occurred would be likely to have a not insignificant effect on him. It is difficult to be more precise than that, there being no further evidence on this issue. Undoubtedly, however, there would have to be some consequences, not only physical but emotional, which would be likely to endure for some considerable period.
16 The Crown points out that there were other factors which are also of an aggravating nature that were not expressly referred to by the learned Judge. Firstly, the respondent's actions were a gross violation of the relationship of trust between the respondent as father and his young sons. Secondly, when viewed as a whole, the offences should not be seen as being in the nature of isolated impulsive acts committed during moments of weakness and out of character. The counts in the indictment indicate repeated acts of violence and deprivation over a period of time. Thirdly,
(Page 6)
- the offending behaviour degraded Aaron and was humiliating, violent and cruel.
17 I pause to note that the mere fact that his Honour did not expressly mention these matters does not mean that he did not bear them in mind. They were factors that were obvious to an experienced sentencing Judge such as his Honour, and were mentioned and indeed stressed in the course of submissions. It is obvious from general remarks made by the learned Judge that they were not overlooked by him.
18 I accept that considerations of general and personal deterrence necessarily arise in sentencing for offences against children relating to deprivation of liberty and assault occasioning bodily harm. I accept too that there is a need to demonstrate the unacceptability of the respondent's behaviour in an attempt to deter others. General deterrence is important to protect children within the family, particularly in circumstances where there has been severe domestic violence.
19 I also accept the submission of the Crown that in the case of these offences involving violence and harm to the person as they do, it is necessary to give weight to the public need to see appropriate punishment being meted out. On the other hand, there are a number of mitigatory circumstances which have to be taken into account. The respondent pleaded guilty. In this regard his Honour observed:
"You did plead guilty, albeit with a denial of many of the particulars alleged by the Crown. It is, however, the case that the Crown were unable to sustain all of those particulars, so there was some justification in the stance that you took."
20 As a consequence of the pleas of guilty, there was a saving in Court time and in the administration of justice. There was some reduction in the emotional hardship to be endured on the part of the complainants. In consequence, the respondent was entitled to some discount in the sentences but not to the same degree as that to which he would have been entitled had he pleaded guilty on a fast-track basis.
21 The learned Judge found that the respondent had displayed remorse. In this regard he said:
"I accept that you have taken the blame for your treatment of your sons, particularly your son Aaron, and that you have expressed remorse and that you do have remorse. That remorse is conditioned by an inability on your part to understand the
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- seriousness of your own behaviour and the effect on your sons, but I think that is really something that is due to your personality rather than to the lack of a proper attempt to arrive at a position of remorse."
22 In regard to the respondent's personality and personal circumstances, the learned Judge had considerable material before him. I shall first deal with his personal circumstances.
23 The respondent was born in 1953. He married at age 20 and remains married. He has five children, and there is no evidence of wrongful behaviour committed by him against the three who are not complainants in the charges against him. Indeed, he claimed that he had a good relationship with them. The psychiatric report referred to the good relationship which the respondent has with his third son. According to this psychiatrist, the third son is devoted to his father and is very disturbed by the current circumstances.
24 The respondent was in continuous employment for some 30 years. He properly supported his family during this time. He was employed as a shop assistant for 7 years and was then in the police force for 21 years, reaching the rank of senior constable. He resigned from this post in mid-1998 as he was medically unfit. That medical unfitness apparently concerned his predilection to violence and his personal difficulties as revealed by his attitude to the complainants in this case.
25 Thereafter the respondent was employed by the Town of Bayswater as a ranger. That employment has of course been interrupted by his imprisonment, and whether he will recover that employment on release from prison must be open to serious question.
26 According to a psychiatrist whose report was tendered, the respondent is a man who comes from a background where physical violence was regularly used against him. He described the respondent as a suspicious and resentful personality with a short fuse. According to a report from another psychiatrist, the respondent does not suffer from a formal psychiatric disorder, but nevertheless demonstrates paranoid and obsessional personality traits. A third psychiatrist noted that the respondent's childhood was influenced by the violence of his father who punished him physically on several occasions. This psychiatrist was of the opinion that the respondent has multiple symptoms of depression and was close to breaking point for a number of years. He pointed out that the respondent has skills that have allowed him to function within the work
(Page 8)
- situation at a high level, yet at the same time he has had a family life of turmoil that he has not been able to control.
27 The psychiatrist expressed the view, in effect, that there are good prospects for the respondent being rehabilitated. With treatment, according to the psychiatrist, the respondent would be able to make the necessary adaptations and break the cycle of violence. The psychiatrist recounted various family difficulties that the respondent had experienced and said:
"I do believe that many who would have had the difficulties that he has had over the last 6 years would be brought to their knees and have either physical or mental difficulties as a result of what has happened. I don't think that punishment would be of any assistance to the family that has already suffered so much."
28 It also has to be borne in mind that these offences took place not later than 1988, and that Aaron was taken into care some years before.
29 An important factor in this case is that it is a Crown appeal. In Leucas (1995) 78 A Crim R 51 Murray J noted:
"The essential purpose of a Crown appeal against sentence ought to be to expose serious error of principle in the sentencing court, to correct that, and by the reinforcement of a proper statement of principle, to aid the consistency and certainty of the sentencing process, and to avoid undue disparity.
Upon that basis a Crown appeal ought to be a relative rarity and it should only be in a clear case that the appellate court is persuaded to intervene with the sentencing disposition of the Judge at first instance."
30 Taking all the foregoing matters into consideration, I am not persuaded that the learned sentencing Judge erred, and I do not think that this is a clear case for an appellate court to intervene.
31 I have indicated that I accept generally the validity of the submissions made on behalf of the Crown in regard to the seriousness of the offences and the need for general and personal deterrence. In my view, the overall sentence of 3 years' imprisonment in the particular circumstances of this case complies with the requirements for an appropriate sentence.
(Page 9)
32 It is to be borne in mind that, to all intents and purposes, the respondent has lived an exemplary life and these offences are the first of any seriousness that he has committed. By saying, of course, that he has lived an exemplary life, that is other than committing the offences in question, which can correctly be described as appalling.
33 This will be the first time that he will have to undergo imprisonment, and this will be at a mature age. His incarceration will not be made easier by reason of the fact that he was a police officer. It is plain that the respondent is not a man who has no feelings for his family. It is apparent from the psychiatrist to whom I have referred that there have long been serious difficulties in the respondent's family, which led him to behave in what may be described as a cruel, harsh and destructive manner. His criminal conduct has to be weighed against the family circumstances that I have described, his personal circumstances, his plea of guilty, the remorse that he has displayed, the prospects of rehabilitation, and the punishment that he would have suffered, in any event, by being prosecuted and convicted of these most serious offences.
34 There is another important factor to bear in mind. In passing the overall sentence, the learned sentencing Judge was entitled to take into account his personal impression and understanding of the personality and character of the offender. The trial of the issues followed the respondent's pleas of guilty, and the sentencing process in that connection endured for more than two days. It is apparent from his Honour's reasons for decision on the trial of issues following the pleas of guilty that the learned Judge examined the relevant facts with considerable care and attention and was particularly familiar with all the relevant circumstances relating to the offences, including the respondent's personal circumstances. I may say that he was also in a position to assess to some degree the personalities of the complainants and the consequences of the assaults perpetrated upon them.
35 It is apparent that his Honour attempted to impose sentences which achieved an appropriate balance between a recognition of the real gravity of the offences, together with a need for general and personal deterrence on the one hand and the mitigating factors to which I have referred on the other.
36 While I accept that the sentence might have been higher, in my opinion it cannot be said that the learned Judge did not achieve that balance within an appropriate sentencing discretion. I do not think that
(Page 10)
- there is any warrant to interfere with the sentences imposed by his Honour. I would dismiss the appeal.
37 WALLWORK J: I agree with the reasons for judgment of Ipp J and to the order proposed by his Honour. I would only add that in my view a sentence of 3 years' imprisonment for a man of 46 years of age, who as a result loses his employment, as this respondent did, is a very serious punishment indeed. He has in no way escaped without appropriate punishment for these offences.
38 PARKER J: I agree that the appeal should be dismissed and respectfully concur with the reasons given by Ipp J.
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