RDC v The State of Western Australia
[2012] WASCA 16
•25 JANUARY 2012
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: RDC -v- THE STATE OF WESTERN AUSTRALIA [2012] WASCA 16
CORAM: McLURE P
BUSS JA
MAZZA JA
HEARD: 3 NOVEMBER 2011
DELIVERED : 25 JANUARY 2012
FILE NO/S: CACR 54 of 2011
BETWEEN: RDC
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram :O'NEAL DCJ
File No :IND 791 of 2010
Catchwords:
Criminal law - Appeal against sentence - Appellant convicted after trial of 11 counts of sexual abuse against his de facto child - Complainant aged between 16 and 18 years during the period of the offending - Total effective sentence of 9 years 6 months' imprisonment - Whether the total effective sentence infringed the first limb of the totality principle
Legislation:
Criminal Code (WA), s 326, s 329(2), s 329(4)
Sentencing Act 1995 (WA), s 6(2)(b)
Result:
Appeal dismissed
Category: D
Representation:
Counsel:
Appellant: Mr S K Shepherd
Respondent: Mr J McGrath
Solicitors:
Appellant: Legal Aid (WA)
Respondent: Director of Public Prosecutions (WA)
Case(s) referred to in judgment(s):
FGC v The State of Western Australia [2008] WASCA 47; (2008) 183 A Crim R 313
GHS v The State of Western Australia [2006] WASCA 42
Giglia v The State of Western Australia [2010] WASCA 9
GMS v The State of Western Australia [2009] WASCA 107
KC v The State of Western Australia [2008] WASCA 216
KMB v The State of Western Australia [2010] WASCA 212
Ly v The Queen [2007] NSWCCA 28
M v The State of Western Australia [2006] WASCA 256
MPD v The State of Western Australia [2008] WASCA 57
Porter v The Queen [2008] NSWCCA 145
PP v The State of Western Australia [2004] WASCA 144
R v Baldock [2010] WASCA 170; (2010) 243 FLR 120
R v Webb [1971] VR 147
Rowan v The State of Western Australia [2009] WASCA 185
The State of Western Australia v Akizuki [2008] WASCA 267; (2008) 192 A Crim R 373
The State of Western Australia v Prince [2011] WASCA 22
Truscott v The State of Western Australia [2007] WASCA 62
VIM v The State of Western Australia [2005] WASCA 233; (2005) 31 WAR 1
Warburton v The State of Western Australia [2009] WASCA 113; (2009) 196 A Crim R 361
Woods v The Queen (1994) 14 WAR 341
McLURE P: I agree with Buss JA.
BUSS JA: On 22 November 2010, the trial of the appellant commenced in the District Court before O'Neal DCJ and a jury on an indictment containing 17 counts of alleged sexual abuse against his de‑facto child.
Upon arraignment, the appellant pleaded guilty to counts 1, 3, 5, 7 and 9. The pleas to counts 3, 5, 7 and 9, being alternative counts, were not accepted by the State in full satisfaction of the alleged conduct. On 26 November 2010, the appellant was convicted after trial on counts 4, 6, 8, 10, 12 and 14 ‑ 17.
Although the pleas of guilty were entered very late (at the commencement of the trial), they were consistent with admissions made by the appellant to police in a video‑recorded interview before he was charged.
On 24 March 2011, the trial judge sentenced the appellant in relation to the counts for which judgments of conviction were entered, being counts 1, 3, 4, 6, 8, 10, 12 and 14 ‑ 17. His Honour imposed a total effective term of 9 years 6 months' immediate imprisonment. The total effective sentence was backdated to commence on 26 November 2010, being the date on which the appellant was taken into custody for the offences. A parole eligibility order was made.
The total effective sentence was structured as follows.
Count
Offence
Criminal
Code Section
Maximum Penalty
Term of Imprisonment
1
Indecent dealing (masturbating and touching of victim) with a de facto child over 16 years
329(4)
5 years
6 months
3
Sexual penetration (digital) of a de facto child over 16 years
329(2)
10 years
2 years 6 months concurrent
4
Aggravated sexual penetration (fellatio) without consent
326
20 years
4 years cumulative on the sentence for count 1
6
Aggravated sexual penetration (digital) without consent
326
20 years
4 years concurrent
8
Aggravated sexual penetration (cunnilingus) without consent
326
20 years
4 years concurrent
10
Aggravated sexual penetration (penile‑vaginal) without consent
326
20 years
5 years concurrent
12
Aggravated sexual penetration (penile‑vaginal) without consent
326
20 years
5 years concurrent
14
Aggravated sexual penetration (digital) without consent
326
20 years
4 years concurrent
15
Aggravated sexual penetration (penile‑vaginal) without consent
326
20 years
5 years concurrent
16
Aggravated sexual penetration (digital) without consent
326
20 years
4 years concurrent
17
Aggravated sexual penetration (penile‑vaginal) without consent
326
20 years
5 years cumulative on the sentence for counts 1 and 4
The appellant appeals to this court against sentence.
The facts and circumstances of the offending
The complainant was born on 19 November 1989. The appellant was born on 15 September 1969. In 1997 the appellant met the complainant's mother, and in 2003 they were married. The offences were committed between July 2006 (when the complainant was 16 and the appellant was 36) and early 2008 (when the complainant was 18 and the appellant was 38).
The offending involved six incidents which occurred over a period of about 18 months. During this period the complainant did not live with the appellant and her mother. She had left school and commenced an apprenticeship.
The complainant resided with the appellant and her mother for two periods, totalling about five years, between 1997 ‑ 2001 and between 2004 ‑ 2005. However, the complainant maintained a close relationship with her mother when she did not reside with them. She would stay with the appellant and her mother every second weekend.
The first incident occurred in July 2006. The complainant was 16 and the appellant was 36. The complainant was visiting the appellant and her mother at their home in rural Western Australia. The appellant masturbated in the complainant's presence. Also, he attempted to touch the complainant and put his hand down her pants. When the complainant realised what was happening, she left the room.
The second incident occurred six or seven months later at the home of the appellant's sister and brother‑in‑law in a Perth suburb. The complainant was 17 and the appellant was 37. The offending took place at night in a swimming pool, about 10 m from a table at which a number of adults (including the complainant's mother) were seated. Two acts of sexual penetration occurred. The first involved digital penetration by the appellant of the complainant's vagina. The jury did not find that this penetration occurred without the complainant's consent. The appellant had pleaded guilty to the alternative charge of sexual penetration of a de facto child over the age of 16 years, contrary to s 329(2) of the Criminal Code (WA) (the Code). The second involved the appellant penetrating the complainant's mouth with his penis. The jury found that this penetration was non‑consensual. The appellant had pleaded guilty to the lesser alternative charge. The trial judge said, in his sentencing remarks, that there was some force involved in the appellant's sexual penetration of the complainant's mouth without her consent. The incident was brief and the adults seated at the table were unaware of the conduct.
The third incident occurred some time in 2007 at the home of the appellant's sister and brother‑in‑law. The complainant was 17 and the appellant was 37 or 38. The incident occurred in the early hours of the morning in the lounge room of the house. The offending conduct involved digital, oral and penile penetration of the complainant's vagina. This conduct was the subject of three pairs of alternative counts. The appellant pleaded guilty to the lesser alternative counts in respect of the digital and oral penetration. However, he was convicted of digital, oral and penile penetration of the complainant's vagina without her consent. During the third incident, the complainant attempted to push the appellant away from her; the appellant forced her legs apart; the complainant turned her head away several times to prevent the appellant from kissing her; the complainant told the appellant several times to stop and get off her; the complainant began to cry when the appellant commenced having sex with her; and the complainant put her hands over her face. The complainant said that she thought the sexual intercourse went on for 'about five minutes or so' (ts 78, 79).
The fourth incident occurred some time before November 2007 at the home of the appellant's sister and brother‑in‑law. The complainant was 17 and the appellant was 37 or 38. The appellant was convicted of sexually penetrating the complainant's vagina with his penis without her consent. During the fourth incident, the complainant turned her head away when the appellant attempted to kiss her; she thought the appellant pulled her from a recliner chair onto the floor; she could not recall whether the incident ended by the appellant getting up and leaving or by her walking off; and she was affected by alcohol at the time of the offending, the alcohol having been supplied by the appellant.
The fifth incident occurred shortly after November 2007 at the home of the appellant's sister and brother‑in‑law. The complainant was 18 and the appellant was 38. The offending conduct involved digital and penile penetration of the complainant's vagina without her consent. The appellant entered a bathroom in the home while the complainant was showering. The complainant asked the appellant to leave. He ignored her request. During the fifth incident, the complainant told the appellant to 'get out and leave me alone'; the appellant pulled a tampon out of the complainant's vagina; the appellant removed the complainant from the shower and pushed her down so that she was sitting on the bath; the appellant forced himself between the complainant's legs; and the appellant would not allow the complainant to leave. The appellant used some force to move and restrain the complainant before the act of penile penetration. The complainant admitted that some limited consensual sexual activity occurred in the shower.
The sixth incident occurred some time in early 2008 at the home of the appellant's sister and brother‑in‑law. The complainant was 18 and the appellant was 38. The offending conduct involved digital and penile penetration of the complainant's vagina without her consent. The appellant commenced touching the complainant's breasts and vagina when she was asleep. During the penile penetration the appellant was on top of the complainant and held her down by putting his hands on her breasts. She asked him to stop because he was hurting her. The appellant desisted when the complainant's mother entered an adjoining room.
Apart from the use of some force in the commission of some of the offences, the appellant did not employ violence or threats of violence against the complainant. There was, however, evidence of emotional manipulation and threats as to what the appellant would say to the complainant's mother in the event of disclosure. The appellant threatened, in effect, to destroy the complainant's close relationship with her mother if she should disclose the offending.
The ground of appeal
The sole ground of appeal alleges that the total effective sentence infringed the first limb of the totality principle. On 14 July 2011, McLure P granted leave to appeal on this ground.
The merits of the ground of appeal
A complaint that a sentencing judge has infringed the totality principle involves an allegation of inferred error. The first limb of this principle requires that the total effective sentence imposed on an offender who has committed multiple offences must bear a proper relationship to the overall criminality involved in all of the offences (including those, if any, in respect of which the offender is still serving a term of imprisonment). The offences must be viewed in their entirety, having regard to all relevant circumstances including those referable to the offender personally (and including, for example, the desirability of accommodating any wish to rehabilitate).
The severity or leniency of an individual sentence is relevant in evaluating whether the total effective sentence infringes the first limb of the totality principle. See Giglia v The State of Western Australia [2010] WASCA 9, where Owen JA (McLure P & Pullin JA agreeing) said:
[G]enerally speaking where there is a challenge on totality grounds, the severity of a sentence imposed on an individual count will usually fall to be assessed in light of the sentences imposed in respect of the other counts and its contribution to the total effective sentence. A heavy individual sentence, for example, may be softened by an order that it be served concurrently with sentences imposed in relation to the other counts. On the other hand, a relatively light sentence may, as a practical matter, have increased severity if it is ordered to be served cumulatively. The real question is whether the total effective sentence is excessive [40].
At the material time, the maximum penalty for the offence of:
(a)sexually penetrating another person, without that person's consent and in circumstances of aggravation, contrary to s 326 of the Code, was imprisonment for 20 years;
(b)sexually penetrating a child of or over the age of 16 years who the offender knows is his or her lineal relative or a de facto child, contrary to s 329(2) of the Code, was imprisonment for 10 years; and
(c)indecently dealing with a child of or over the age of 16 years who the offender knows is his or her lineal relative or a de facto child, contrary to s 329(4) of the Code, was imprisonment for 5 years.
The primary sentencing considerations for offences of the kind in question are punishment of the offender, specific and general deterrence, and the protection of vulnerable children. See Woods v The Queen (1994) 14 WAR 341, 345 ‑ 346 (Anderson J, Malcolm CJ & Seaman J agreeing); PP v The State of Western Australia [2004] WASCA 144 [14] (McLure J, Malcolm CJ & Murray J agreeing); M v The State of Western Australia [2006] WASCA 256 [30] (Wheeler JA, Steytler P & McLure JA agreeing).
It is well-established that in cases of intra-familial sexual abuse, matters personal to the offender are of less mitigatory weight than might otherwise be the case. The fact that an offender is otherwise of good character has only little weight because the offences are of a kind that, until revealed, generally do not impact on other people or upon their perception of the offender. See MPD v The State of Western Australia [2008] WASCA 57 [58] (Miller JA, Wheeler & Buss JJA agreeing).
There is no 'tariff' for offences of the kind in question (or for sex offences generally) because of the great variation that is possible in the circumstances of the offending and the offenders. The sentence to be imposed in a particular case depends on its individual facts and circumstances, having regard to the maximum available penalty and all relevant sentencing considerations. It is important, however, to appreciate what sentences are customarily imposed in cases involving similar offending, for the purpose of avoiding the risk of sentencing becoming idiosyncratic and arbitrary. See The State of Western Australia v Akizuki [2008] WASCA 267; (2008) 192 A Crim R 373 [68] ‑ [69] (Steytler P, McLure JA agreeing).
The guidance afforded by comparable cases is flexible rather than rigid. They do not fix an upper or lower limit. The mere fact that a sentence is within the range of other sentences imposed for similar offences does not necessarily establish that there was an appropriate exercise of the sentencing discretion in the particular case. Similarly, the mere fact that a sentence is outside that range does not necessarily establish that the exercise of the sentencing discretion in the particular case miscarried. See Ly vThe Queen [2007] NSWCCA 28 [20] (Adams J, Howie & Price JJ agreeing); R v Baldock [2010] WASCA 170; (2010) 243 FLR 120 [147] (Buss JA).
In recent years, there has been a 'firming up' of sentences imposed for sexual offences against children, especially cases involving intra-familial sexual abuse. See VIM v The State of Western Australia [2005] WASCA 233; (2005) 31 WAR 1 [288] (Wheeler & Roberts-Smith JJA and Miller AJA).
The appellant's personal circumstances, and those matters favourable to him for sentencing purposes, included:
(a)the absence of a prior criminal record;
(b)his satisfactory employment history, despite having left school before completing year 9;
(c)his chaotic upbringing, and the significant difficulties and disadvantages (including problems with learning and speech) he suffered as a child;
(d)strong family support, which might assist with his rehabilitation;
(e)his being assessed by a psychologist, Mr Bart Wszola, as at a low risk of reoffending in a similar manner, this assessment having been accepted by his Honour (ts 15 ‑ 16); and
(f)written references which indicated that a number of people thought well of him.
Most of the matters to which I have referred are mentioned in a psychological report dated 20 March 2011 from Mr Wszola and a pre‑sentence report dated 23 March 2011.
The entering of pleas of guilty is ordinarily a significant mitigating factor. However, in the present case, the trial judge concluded that the pleas entered by the appellant were of little mitigatory value (ts 16). These pleas related to the less serious offences in which consent was not an element. The appellant advanced a version of events, in his evidence at the trial, that diminished the egregiousness of his conduct and portrayed the complainant in a negative light. His Honour found that the appellant demonstrated no remorse or contrition, continued to protest his innocence of the more serious offences, and persisted in blaming the complainant for what had occurred between them (ts 5, 16 and 17).
Consistently with the trial judge's observations, Mr Wszola noted that although the appellant acknowledged having behaved inappropriately, he had a tendency to minimise the degree of his responsibility and to blame the complainant. The appellant denied ever having engaged in penile‑vaginal intercourse with the complainant, and he displayed no apparent empathy for her. Mr Wszola expressed the view that the appellant had 'a large degree of cognitive distortions', and that these distortions were used by the appellant in explaining and justifying his behaviour.
The appellant's attitude towards the complainant is illustrated by his remarks during a telephone conversation between them on 14 March 2008 that was covertly recorded by the police. For example, the appellant said, in response to the complainant's question as to why he had sex with her:
Why did I have sex with you? Because that's the way I thought that you would ‑ you wouldn't hit my kids any more … You were fucking psycho man and when I knew you were sleeping around, that's where I thought fuck it, I've got nothing to lose here (AB 166).
His Honour was entitled to conclude that, in the circumstances, the appellant's pleas were of little mitigatory value. They merely constituted an admission of a material element of the offences in question, that is, that the relevant sexual activity had occurred.
The appellant was, of course, entitled to plead not guilty (in particular, to the most serious counts) and proceed to trial. However, he did not have the benefit of the mitigation that pleas of guilty, and genuine remorse and contrition, would have brought.
The objective seriousness of the appellant's offending is apparent from the following:
(a)the number of offences;
(b)the nature of his offending, being ongoing over a period of about 18 months and including numerous offences of sexual penetration without consent;
(c)the gravity of the offending escalated and became increasingly brazen;
(d)although there was no evidence that the appellant had ejaculated in the complainant's vagina (and the complainant gave evidence in relation to some of the offences that she thought ejaculation did not occur), there was no suggestion that the appellant had used condoms;
(e)the complainant's age during the period of the offending (between 16 and 18 years), and the disparity between the appellant's age and the complainant's age (about 20 years);
(f)the use of some force in the course of committing some of the offences;
(g)the obvious distress of the complainant while the appellant was committing some of the offences;
(h)that at the material time the complainant was inclined to experiment with alcohol, and his Honour's finding that the appellant encouraged this behaviour in order to take advantage of her (ts 11); and
(i)the use by the appellant of emotional manipulation and threats to deter the complainant from disclosing his conduct.
The trial judge referred, in his sentencing remarks, to the emotional manipulation and threats employed by the appellant. His Honour said:
At one point, [the complainant] did threaten you with disclosure. She said, and I accept, that you told her that no one would believe her. You told her that you would tell her mother that it was [the complainant], in fact, who was coming on to you and you told [the complainant] that her mother would believe you over her. That was the dilemma that you placed a 17‑year‑old girl in, to either resign herself to your occasional attention or destroy her relationship with her mother (ts 9).
A little later in his remarks, his Honour found that, after the appellant's offending was discovered, the appellant told the complainant's mother that the complainant had initiated the sexual contact (ts 13). This resulted in a disruption to the relationship between the complainant and her mother for a period of almost two months. Ultimately, they were reconciled.
The trial judge was satisfied beyond reasonable doubt that the six incidents in which the offending occurred were not isolated, in the sense that the appellant engaged in other uncharged sexual offending against the complainant (ts 17). The uncharged acts appear to have been similar in character to the offending the subject of count 1. The complainant, in her evidence‑in‑chief, said that the appellant would 'hide around corners and masturbate and things like that' (trial ts 62). The 'things like that' involved attempting to touch her breasts and her vagina (trial ts 62). The complainant's evidence about the uncharged acts relates to a period of about seven months before count 2 was committed (trial ts 62). As his Honour rightly appreciated, the appellant is not to be punished for these other incidents, but their occurrence demonstrates that the offences for which he was convicted were not momentary aberrations or out of character (ts 17).
The trial judge found that during the period of the offending the complainant was 'very young and emotionally immature', and that the appellant exploited these characteristics for his sexual gratification (ts 12).
The victim impact statement dated 4 February 2011 reveals that, as a result of the offending, the complainant has suffered a loss of confidence and self‑esteem. This has had an impact on her social and personal relationships and on her interaction with people in her working environment. She also says, unsurprisingly:
During the years of abuse, my relationship with my mother suffered significantly, I didn't feel like I could confide in her and I found myself avoiding her for fear of ruining our relationship, it was a very lonely, depressing, and highly distressing time of my life.
By s 6(2)(b) of the Sentencing Act 1995 (WA), the seriousness of an offence must be determined by taking into account, amongst other things, the circumstances of the commission of the offence, including 'the vulnerability of any victim of the offence'.
At common law, a sentencing judge may take into account, in determining sentence, any detrimental, prejudicial or deleterious effect that may have been produced on the victim by the commission of the offence. See R v Webb [1971] VR 147, 151 (Winneke CJ, Pape & Lush JJ); Porter v The Queen [2008] NSWCCA 145 [54] (Johnson J, Bell JA & McCallum J agreeing). See also, in relation to victim impact statements, s 24 to s 26 of the Sentencing Act.
I have perused the decisions of this court in Akizuki; Warburton v The State of Western Australia [2009] WASCA 113; (2009) 196 A Crim R 361; KMB v The State of Western Australia [2010] WASCA 212; and The State of Western Australia v Prince [2011] WASCA 22, and the case law reviewed in those decisions. I have also perused various other decisions cited by counsel for the appellant, namely GHS v The State of Western Australia [2006] WASCA 42; Truscott v The State of Western Australia [2007] WASCA 62; FGC v The State of Western Australia [2008] WASCA 47; (2008) 183 A Crim R 313; MPD; KC v The State of Western Australia [2008] WASCA 216; GMS v The State of Western Australia [2009] WASCA 107; and Rowan v The State of Western Australia [2009] WASCA 185.
Each case turns, of course, on its own particular facts and circumstances. Most of the decisions I have perused are not truly comparable. Generally, the complainants were younger, and the absence of consent was not an element of the offences. In the present case, the absence of consent was an element of all but two of the 11 counts on which the appellant was convicted. In these nine counts there was a proven absence of consent. The essence of the appellant's criminality derives from this proven absence of consent and not from a relationship of trust with the complainant. However, the decisions in the other cases provide some limited and general guidance as to the available sentencing range. There is some degree of similarity between VIM and the present case.
In my opinion, the total effective sentence of 9 years 6 months' imprisonment (with 7 years 6 months to be served before eligibility for parole) was high, but it properly reflected all relevant sentencing considerations including the appellant's personal circumstances and matters favourable to him. None of the individual sentences is challenged. Some accumulation of the individual sentences was necessary to recognise the number of offences, the seriousness of them and the period of the offending (about 18 months). The objective seriousness of the offending, and the importance of punishment and general deterrence for this kind of offending, required the imposition of a total effective sentence of the order imposed by his Honour.
The total effective sentence bears a proper relationship to the overall criminality involved in all of the offences, viewed in their entirety, and after having regard to all relevant circumstances including those referable to the appellant personally. The sentence was within the range of a sound exercise by his Honour of the sentencing discretion. There is no proper basis for inferring error.
The sole ground of appeal fails.
Conclusion
I would dismiss the appeal.
MAZZA JA: I agree that this appeal should be dismissed, generally for the reasons given by Buss JA.
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