Regan v The State of Western Australia

[2005] WASCA 240

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT :   THE COURT OF APPEAL (WA)

CITATION:   REGAN -v- THE STATE OF WESTERN AUSTRALIA [2005] WASCA 240

CORAM:   STEYTLER P

WHEELER JA
MCLURE JA

HEARD:   10 OCTOBER 2005

DELIVERED          :   14 DECEMBER 2005

FILE NO/S:   CCA 215 of 2004

BETWEEN:   VINCENT THOMAS REGAN

Appellant

AND

THE STATE OF WESTERN AUSTRALIA
Respondent

ON APPEAL FROM:

Jurisdiction              :  DISTRICT COURT OF WESTERN AUSTRALIA

Coram  :EATON  DCJ

File No  :IND 1788 of 2001

Catchwords:

Criminal law and procedure - Appeal against sentence - Whether sentence manifestly excessive - Application of totality principle - Turns on own facts

Legislation:

Acts Amendment (Sexual Assaults) Act 1985 (WA)

Acts Amendment (Sexual Offences) Act 1992 (WA)
Criminal Code (WA), s 183, s 184, s 319

Sentencing Legislation Amendment and Repeal Act 2003 (WA)

Result:

Appeal allowed
Orders as to concurrency and cumulation set aside
Total sentence of 4 years' imprisonment imposed

Category:    D

Representation:

Counsel:

Appellant:     Mr T F Percy QC & Mr J A Davies

Respondent:     Mr B Fiannaca

Solicitors:

Appellant:     E N Stamatiou & Co

Respondent:     State Director of Public Prosecutions

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

Bell v The Queen [2001] WASCA 40

Bishop v The Queen [2003] WASCA 79

Dinsdale v The Queen (2000) 202 CLR 321

Herbert v The Queen [2003] WASCA 61

House v The King (1936) 55 CLR 499

Jarvis v The Queen (1993) 20 WAR 201

Johnson v The Queen [2004] HCA 15

Lawrence v The State of Western Australia [2005] WASCA 14

Lowndes v The Queen (1999) 195 CLR 665

Postiglione v The Queen (1997) 189 CLR 295

PP v The State of Western Australia [2004] WASCA 144

R v Chan (1989) 38 A Crim R 337

R v Dick (1994) 75 A Crim R 303

R v Gozenton, unreported; CCA SCt of WA; Library No 8977; 5 August 1991

R v Leggett [2000] WASCA 327

R v Liddy (No 2) (2002) 84 SASR 231

R v Lippiatt, unreported; CCA SCt of WA; Library No 980065; 17 February 1998

S v The Queen [2001] WASCA 245

Sherwood v R, unreported; CCA SCt of WA; Library No 980534; 16 July 1998

VIM v The State of Western Australia [2005] WASCA 233

Wagenaar v The Queen [2000] WASCA 325

Woods v The Queen (1994) 14 WAR 341

Case(s) also cited:

Bowman v R (1993) 69 A Crim R 530

Dickens v The Queen [2004] WASCA 179

Director of Public Prosecutions v Kien (2000) 116 A Crim R 339

E v The Queen, unreported; CCA SCt of WA; Library No 960032; 23 January 1996

Mill v The Queen (1988) 166 CLR 59

R v Hunter (1984) 36 SASR 101

R v Petchell, unreported; CCA SCt of WA; Library No 930346; 16 June 1993

Sullivan v R, unreported; CCA SCt of WA; Library No 8626; 11 December 1990

The State of Western Australia v JPR [2004] WASCA 183

1. STEYTLER P:  I have read the judgment of McLure JA.  I agree with it and with her conclusion that the appeal should be allowed and the orders made by the sentencing Judge in relation to concurrency and cumulation set aside and that, in lieu, the sentences on counts 1 and 3 should be ordered to be served cumulatively and those for the remaining counts should be ordered to be served concurrently, resulting in a total sentence of 4 years' imprisonment, to commence from 25 November 2004, with the appellant remaining eligible for parole.

2. WHEELER JA:  I have had the advantage of reading in draft the reasons for decision of McLure JA.  I agree with those reasons and have nothing to add.

3. MCLURE JA: The appellant was convicted after trial in the District Court of Western Australia of 3 counts of unlawfully and indecently dealing with a child under the age of 14 years contrary to s 183 of the Criminal Code (WA) (counts 1, 2 and 3) and 5 counts of committing acts of gross indecency with a male contrary to s 184 of the Criminal Code (counts 4 to 8).

4. The offences were committed sometime between October 1981 and October 1987.  The complainant in each case was the son of the appellant's cousin.  The complainant was born on 29 October 1971 and was aged 9 years to 16 years during the relevant period.  At the material times, the complainant lived in Kalgoorlie and the appellant in Perth.  The offences were committed during three visits by the appellant to Kalgoorlie over the relevant period.  Three of the offences were committed as part of one incident on the appellant's first visit (counts 1, 2 and 3); two offences were committed on separate days during a second visit (counts 4 and 5) and three offences were committed as part of one incident on the third visit (counts 6, 7 and 8).

5. The conduct involved oral (counts 1, 2, 4, 5 and 6) and manual (3, 7 and 8) stimulation of the complainant's penis.

6. The appellant was sentenced by Eaton DCJ on 21 December 2004.  He was sentenced to terms of imprisonment of 2 years, 16 months and 2 years on counts 1, 2 and 3 respectively.  Each of the sentences were made concurrent.

7. For each of counts 4 to 8, the appellant was sentenced to 16 months' imprisonment.  The sentence for count 4 was ordered to be served cumulatively with counts 1 to 3; the sentence for count 5 was ordered to

be served cumulatively with counts 1 to 4; and the sentences for counts 6, 7 and 8 were ordered to be served concurrently with each other but cumulatively with counts 1 to 5.  That resulted in a total effective sentence of 6 years' imprisonment.

1. The appellant contends in his grounds of appeal that the total sentence of 6 years is manifestly excessive and that the learned sentencing Judge failed to properly apply the totality principle.

2. The legal principles are not in dispute.  An appellate court is not entitled to intervene merely because it would have exercised the sentencing discretion in a manner different than the sentencing judge:  Lowndes v The Queen (1999) 195 CLR 665. It is entitled to intervene if a material error of fact or law is discerned in the sentencing judge's reasons. Alternatively, error may be inferred if the result is unreasonable or unjust, commonly referred to in this jurisdiction as either manifestly inadequate or excessive, depending on the circumstances: Dinsdale v The Queen (2000) 202 CLR 321 at 324 - 325.

3. To determine whether a sentence is manifestly excessive, it is necessary to view it in the perspective of the maximum sentence prescribed by the law for the crime, the standards of sentencing customarily observed with respect to the crime, the place which the criminal conduct occupies on a scale of seriousness of crimes of that type and the personal circumstances of the offender:  R v Chan (1989) 38 A Crim R 337 at 342.

4. The totality principle requires a judge who is sentencing an offender for a number of offences to ensure that the aggregation of the sentences appropriate for each offence is a just and appropriate measure of the total criminality involved:  Postiglione v The Queen (1997) 189 CLR 295 at 307 - 308. The total sentence imposed on an offender must bear a proper relationship to the overall criminality involved in various offences, viewed in their entirety and having regard to the circumstances of the case, including those referrable to the offender personally: Woods v The Queen (1994) 14 WAR 341 at 352 per Anderson J. In assessing whether the aggregate of all the sentences is appropriate for the criminal conduct being punished, the aggregate may be seen to be inappropriately long even if the total sentence cannot be described as "crushing": Jarvis v The Queen (1993) 20 WAR 201 at 216 per Anderson J; Johnson v The Queen [2004] HCA 15 at [22].

5. The practical effect of the totality rule may be to arrive at a total sentence that is less than that which would be arrived at by simply adding up the terms appropriate for each offence.  Thus, in the context of totality, the issue is whether the total sentence of 6 years is too long, notwithstanding that the individual sentences, when considered separately, are appropriate.

6. In a case such as the present, there is little to distinguish the analysis required to determine whether the total sentence is manifestly excessive or infringes the totality principle:  see Woods v The Queen.

Whether sentence manifestly excessive

1. The maximum penalty for a breach of s 183 of the Criminal Code is 7 years. The maximum penalty for a breach of s 184 is 3 years. These sections of the Criminal Code were repealed in 1989.

2. In 1986 a new set of sexual assault provisions came into effect following the passage of the Acts Amendment (Sexual Assaults) Act 1985 (WA). These provisions contained the expression "to sexually penetrate" which was defined to include, inter alia, the introduction of any part of the penis of one person into the mouth of another (s 324F).  A new offence of sexual penetration without consent was introduced which had a maximum penalty of 20 years (s 324E).  On 1 August 1992 wholesale amendments were made to the sexual offence provisions of the Criminal Code by the Acts Amendment (Sexual Offences) Act 1992 (WA). The definition of sexual penetration was extended to include fellatio (s 319).

3. The jury found that all of the gross indecency offences (4 to 8) were committed when the complainant was "between the ages of 13 years and 16 years". According to the sentencing Judge that was to "facilitate [the appellant's] punishment pursuant to the current provisions of the Criminal Code".  The maximum penalties under the current law for sexual penetration of a child under 13 is 20 years; indecent dealing with a child under 13, 10 years; sexual penetration of a child over 13 and under 16, 14 years (and 20 years if the child is under the care, supervision or authority of the offender); and indecent dealing with a child between 13 and 16, 7 years (and 10 years if the child is under the care etc of the offender).  Thus, there have been significant increases in the maximum penalties for the conduct the subject of the appellant's convictions.  However, the penalties imposed on the appellant must be determined by reference to the maxima applicable at the time of the offences, although within that framework, regard can be had to contemporary understanding of the seriousness of the behaviour:  R  v Leggett [2000] WASCA 327 at [22] per Wheeler J.

4. The object of the Parliament in increasing a maximum penalty is to bring about an increase in the sentences imposed for the offence in question:  Herbert v The Queen [2003] WASCA 61 at [133] per Anderson J. Accordingly, when considering the standards of sentencing customarily observed special care is required when considering sentences imposed for breaching the current law, which sentences will generally reflect a component for the increase in maximum penalty. A further complication in the identification of sentencing ranges is that sentences imposed from 31 August 2003 have been reduced by one third pursuant to the Sentencing Legislation Amendment and Repeal Act 2003 (WA) ("Sentencing Amendment Act"). For comparative purposes it is necessary to have regard to the pre-Sentencing Amendment Act sentence, which in the appellant's case is 9 years.

5. As to the appellant's personal circumstances, he was born on 6 December 1931 and was 73 years of age at the time of sentencing.  The last of the offences for which he was convicted took place over 17 years before sentencing.  He has no prior record of offending and the sentencing Judge accepted that for all practical purposes, he was not likely to be a risk to the community.

6. It was contended that the appellant suffered "significant" health problems.  The medical reports refer to mild cognitive impairment, anxiety and a bladder complaint which neither individually nor cumulatively can be regarded as significant from a sentencing perspective.

7. The appellant devoted considerable attention in the appeal to the weight to be given to the appellant's age and the delay between the commission of the offences and sentencing.  Different views, or differences in emphasis, can be seen in the case law on the subject:  see Bishop v The Queen [2003] WASCA 79 at [75]; R v Liddy (No 2) (2002) 84 SASR 231 at 242 - 246; Bell v The Queen [2001] WASCA 40 at [9]; Wagenaar v The Queen [2000] WASCA 325. However, as I have been able to determine the appeal on other factors, it is unnecessary to address these issues.

8. The other relevant factors are the related questions of the standards of sentencing customarily observed with respect to the crime and where the conduct fits on a scale of seriousness of crimes of that nature.  The analysis is not straightforward when what is alleged to be excessive is the total effective sentence for multiple offences rather than a sentence for a single offence.  However, it is very often the case that sexual offences against children involve multiple offending with the result that consistency is assessed by reference to broad categories of conduct.  Anderson J in Woods v The Queen reviewed the sentences imposed in sexual assault cases.  He concluded that cases of intra‑family sexual assaults of young children attracting sentences of 8 years or more in total, were often cases where there had been multiple offending over an extended period and the offending has included sexual penetration in one form or another, or where some degree of violence, cruelty, aggression or threats had been employed. In fact, cases in this category usually involve multiple counts of penile penetration.  In VIM v The State of Western Australia [2005] WASCA 233 this Court undertook a detailed analysis of recent patterns of sentencing for offences of a sexual nature against children. I have had regard to that analysis.

9. There are a number of recent cases in which pre-Sentencing Amendment Act sentences of 6 to 8 years have been imposed for intra-familial sexual assaults.  In PP v The State of Western Australia [2004] WASCA 144, the Court of Criminal Appeal dismissed an appeal against a total sentence of 8 years' imprisonment for convictions after trial of 3 counts of sexual penetration and 5 counts of indecent dealing. There were four discrete incidents over a year. The complainant was aged between 5 and 6 years at the time of the offences. The offender was his grandfather. The maximum penalty for the counts of sexual penetration (which involved the offender placing his penis in the complainant's month) was 20 years.

10. In Lawrence v The State of Western Australia [2005] WASCA 14, the appellant was convicted after trial of one count of indecently dealing with a child between the ages of 13 and 16 years, contrary to s 321(4) of the Criminal Code and 9 counts of sexually penetrating a child between 13 and 16 years of age contrary to s 321(2) of the Criminal Code. The offender lived with the complainant's family. Although the offending took place over a period of approximately one week, it involved penile penetration of the vagina. The offender was sentenced to a total term of 8 years' imprisonment. The Court of Appeal concluded that the sentencing Judge had not reduced the sentence in accordance with the Sentencing Amendment Act and accordingly reduced it to an aggregate sentence of 5 years' 4 months' imprisonment.

11. In "S" v The Queen [2001] WASCA 245, the offender was sentenced after trial to a total sentence of 11 years' imprisonment for 3 offences of carnal knowledge of his daughter, 6 offences of indecent dealing with her when she was under the age of 17 years and a further 3 offences of indecent assault upon her when she was 17 or 18. The offences had taken place over a very extended period, the last of which occurred some 17 years prior to trial. The offending commenced when the complainant was aged 6. The Court of Criminal Appeal reduced the total sentence from 11 years to 8 years' imprisonment.

12. Liddington v State of Western Australia (2005) 152 A Crim R 502 was a State appeal against sentence. The offender had been convicted of 4 counts of indecently dealing with a child under the age of 13 years and 1 count of sexual penetration of a child under the age of 13 years contrary to s 320(4) and s 320(2) of the Criminal Code respectively.  He was sentenced at first instance to 18 months' imprisonment on each of the counts of indecent dealing and 2 years' imprisonment on the count of sexual penetration which sentences were suspended for a period of 2 years.  The offender was the appellant's de facto grandfather.  The offences took place over a period of approximately 18 months to 2 years.  The State appeal against sentence was upheld and the Court of Appeal imposed a total aggregate sentence of 3 years and 8 months' imprisonment (corresponding to a pre‑Sentence Amendment Act term of 5 years and 6 months).  Of course, as it was a State appeal, the sentence was less than would ordinarily be expected.

13. In R v Lippiatt, unreported; CCA SCt of WA; Library No 980065; 17 February 1998, the offender pleaded guilty to 3 counts of indecently dealing with his nephew, 1 count of attempted sexual penetration of a child under 16 without consent and 1 charge of sexual penetration (anal) of a child under 16 without consent.  These offences occurred over a period of 2 years.  The Court at first instance imposed a total sentence of 4 years' imprisonment.  On appeal, the sentence was increased to a total sentence of 6 years' imprisonment.

14. In R vDick (1994) 75 A Crim R 303, the offender pleaded guilty to 10 offences of indecent dealing with at least five boys under his care at a boys' home. Some 30 years after the offences had been committed, the offender voluntarily admitted to the offences. An appeal against a total sentence of 3½ years' imprisonment was dismissed. Significant weight was given to the offender's remorse, a factor that is absent in this case.

15. In R v Gozenton, unreported; CCA SCt of WA; Library No 8977; 5 August 1991, the offender pleaded guilty to 22 offences, being mainly indecent dealings with at least three boys aged between 12 and 15 over an extended period whilst he was their scout leader.  The offender was aged about 18 when these offences occurred which involved primarily touching.  Upholding a Crown appeal, the Court imposed a total term of 2 years and 9 months' imprisonment.

16. In Sherwood v R, unreported; CCA SCt of WA; Library No 980534; 16 July 1998, the offender was convicted of 2 counts of committing an act of gross indecency and 1 count of procuring a male to perform an indecent act.  The complainant was aged 15 and the offender was aged 39 at the time of the offences which had occurred on a single occasion many years before trial.  The offender was sentenced to 2 years' imprisonment.

17. The appellant's offending is in a significantly more serious category than Gozenton and Sherwood.  On the other hand, the appellant's offences and their circumstances are in a less serious category than PP, Lawrence, S v The Queen and Lippiatt (although in the last case the offender pleaded guilty). It is significant in this case that the family connection was not such as to itself give rise to a relationship of trust in the accepted sense.  Further, this is not a case where the offences charged were a representative sample of a wider course of conduct.  That is not to minimise the seriousness and gravity of the offences that were committed intermittently over a lengthy period and involved "grooming".  However, having regard to the circumstances of the offences, the standards of sentencing customarily observed in relation to more serious offences with significantly higher penalties and the appellant's personal circumstances, I am satisfied that the sentence of 9 years (reduced to 6 years) is significantly above the range of a sound sentencing discretion. Accordingly, there being an error, the appellant is entitled to have this Court exercise its own sentencing discretion:  House v The King (1936) 55 CLR 499 at 505.

18. In my view, a just and appropriate measure of the criminality of the conduct is a total sentence of 4 years, being 6 years less one third in accordance with the Sentencing Amendment Act. I would achieve that result by ordering that the sentences on counts 1 and 3 be served cumulatively and the balance of the sentences be served concurrently. Accordingly, I would allow the appeal, set aside the orders made by the sentencing Judge in relation to concurrency and cumulation and in place thereof order that the sentence on counts 1 and 3 be served cumulatively and the sentences for the remaining counts be served concurrently, resulting in a total sentence of 4 years, to commence from 25 November 2004. The appellant will remain eligible for parole.