RJB v The State of Western Australia
[2009] WASCA 49
•27 FEBRUARY 2009
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: RJB -v- THE STATE OF WESTERN AUSTRALIA [2009] WASCA 49
CORAM: OWEN JA
WHEELER JA
MILLER JA
HEARD: 10 FEBRUARY 2009
DELIVERED : 27 FEBRUARY 2009
FILE NO/S: CACR 129 of 2008
BETWEEN: RJB
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram :O'SULLIVAN DCJ
File No :IND 773 of 2008
Catchwords:
Criminal law and procedure - Sentencing - Appeal against severity of sentencing - Voluntary disclosure of some offences - Four counts of sexual penetration and four counts of indecent dealing of de facto child under 16 - Sentence of 8 years not disturbed
Legislation:
Nil
Result:
Appeal dismissed
Category: B
Representation:
Counsel:
Appellant: Mr C L J Miocevich
Respondent: Mr A G Elliott
Solicitors:
Appellant: Aboriginal Legal Service (WA)
Respondent: Director of Public Prosecutions (WA)
Case(s) referred to in judgment(s):
BPR v The State of Western Australia [2007] WASCA 200
Casbolt v The State of Western Australia [2005] WASCA 41
Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357
MPD v The State of Western Australia [2008] WASCA 57
Rock v The State of Western Australia [2007] WASCA 121
Schriever v The State of Western Australia [2008] WASCA 133
VIM v The State of Western Australia [2005] WASCA 233; (2005) 31 WAR 1
Webb v The Queen [2003] WASCA 266
JUDGMENT OF THE COURT: This is an appeal against sentences imposed on the appellant in the District Court on 24 July 2008. The appellant was charged and convicted, on his own plea, of offences of a sexual nature against a young girl.
In October 2008 a single judge of this court made an order extending time within which to appeal. The appellant also obtained an order granting leave to appeal on the grounds set out in the notice of appeal.
Background
In the middle of 2005 the female complainant (JC) was 8 years of age and by the end of 2007 she was 10. During this period the appellant was between 43 and 46 years of age. At the time, JC's mother and the appellant had been living in a de facto relationship for a period of about six years. JC lived with them and was accustomed to call the appellant 'dad'. JC's mother has another daughter from a prior relationship and there are four other children from her relationship with the appellant.
On two occasions, one in May or June 2005 and another between October 2005 and January 2006, similar incidents of a sexual nature took place between the appellant and JC. At some time after the second incident, the appellant told JC's mother what had happened but no report was made to the authorities. There were two separate occasions (in May 2007 and October or November 2007) on which the appellant again subjected JC to similar sexual activity.
On the night of 15 December 2007 the appellant threatened and assaulted JC's mother causing her some injuries. On 16 December 2007, JC's mother reported the assault to police and was interviewed. Also on 16 December 2007, JC was interviewed by police and told them about the last incident of sexual activity. She said that there had been other incidents but she could not recall any details. Later on the same day, the appellant was interviewed by police about his conduct towards both JC and her mother. The appellant admitted that he had threatened and assaulted JC's mother. He also told the police about the four incidents of a sexual nature involving JC.
The appellant was charged on indictment with eight counts of sexual misbehaviour, two each arising from each of the four incidents that we have mentioned. Counts 1 and 2 are in these terms:
(1)On a date unknown between 1 May 2005 and 30 June 2005 at [a regional town] [the appellant] indecently dealt with [JC], a child he then knew to be his de facto child, by rubbing her chest area.
(2)On the same date and at the same place [the appellant] sexually penetrated [JC], a child he then knew to be his de facto child, by inserting his penis into her mouth.
Count 1 is the offence stipulated in Criminal Code s 329(4) and count 2 follows s 329(2). Save for the date, counts 3, 5 and 7 are in identical terms to count 1. Again save for the dates, counts 4, 6 and 8 are the same as count 2.
The appellant entered a plea of guilty on the fast track system. When he came before the District Court for sentence he made a request under Sentencing Act 1995 (WA) s 32 that he also be dealt with for one count on aggravated assault occasioning bodily harm and one count of making a threat to injure, both arising from the 15 December 2007 altercation with JC's mother. The appellant was sentenced to an effective term of 8 years' imprisonment for the eight counts on the indictment and a further 1 year for the offences in the s 32 notice.
The events
We will describe in some detail the incident from which counts 1 and 2 arise. JC was asleep with one of her siblings in her bedroom. The appellant went into the room and woke her. He lifted her up by the shoulders so she was in a seated position on the side of the bed. He exposed his penis and, taking hold of JC's head, made her open her mouth. He told her to suck his penis. He placed his penis in her mouth and manipulated her head while he thrust the penis in and out of her mouth. The complainant tried to pull her head away on several occasions but he prevented her from doing so. After approximately 10 to 20 minutes he removed his penis from her mouth and ejaculated into his hand. This is the sexual penetration charged in count 2.
While this was going on, and in order further to arouse himself, the appellant rubbed his hands on JC's chest area, outside her pyjamas. This was the subject of count 1.
The conduct complained of in counts 3, 5 and 7 is, on each occasion virtually identical to that described for count 1. The offences the subject of counts 4, 6 and 8 are identical to that in count 2 save that:
(a)for count 4 the incident occurred on a sofa in the lounge area of the home;
(b)for count 6 the appellant squeezed JC's ears hard until she opened her mouth; and
(c)on each of these occasions he ejaculated in her mouth.
In his interview with police, the appellant said that after these incidents he told JC not to tell anyone what had happened.
In the plea in mitigation, counsel for the appellant said that after the second occasion the appellant told JC's mother what he had done. His motivation was to have JC removed from the environment in which she was living. For whatever reason, and we make no criticism of anyone in this regard, it did not happen. During 2006 and in the first half of 2007 the relationship between the appellant and JC's mother deteriorated. The appellant's offending behaviour recurred.
In her interview with the police, JC said that some time after the incident the subject of counts 7 and 8 she told her mother about what had happened to her. She could not remember when or where the conversation took place or exactly what she had said. We think the disclosure must have been made some time before 15 December 2007.
On the night of 15 December 2007 the appellant, JC's mother and other relatives were drinking at their home. It seems a lot of alcohol was consumed. The appellant and JC's mother were arguing. The appellant punched her to the face and head causing swelling and bleeding from the mouth. JC's mother retaliated and the fight continued. The appellant obtained a knife and threatened to cut her unless she desisted. This is the subject of the offences in the s 32 notice.
The appellant has not put forward much by way of explanation for his offending behaviour. He said that on each occasion he was very drunk. He also said that before the third and fourth incidents his relationship with JC's mother deteriorated. She had been pregnant but the baby was stillborn. The appellant blamed JC's mother's heavy drinking for this tragedy and he lost interest in her as a sexual partner. The appellant also referred to the fact that at around the time of the most recent offences he lost some close family members.
The sentence and the sentencing remarks
The sentencing remarks are short. The sentencing judge noted that the facts were not in issue. He recited them in summary form in a little less detail than we have done in these reasons. But it is not contended in this appeal that his Honour misapprehended the facts. He referred to the pre-sentence and psychological reports and noted that the appellant was 47 years of age and had a long and successful history of employment in the mining industry. He came from a large family and had been educated to Year 10 standard. His Honour also noted that the appellant had four children with JC's mother, from whom he was then estranged.
The sentencing judge then turned to mitigating factors, which he said were to be taken into account in the appellant's favour. He mentioned:
(a)the appellant had pleaded guilty at an early stage and should be treated accordingly;
(b)he had expressed remorse in an appropriate way; and
(c)he had cooperated with police and that had 'resulted in the child and others connected with this case being spared the ordeal of a trial'.
His Honour then said that, despite these mitigating factors, imprisonment was the only option. He noted these matters:
(a)this was serious offending;
(b)there was a breach of trust - his responsibility as de facto father was to protect her and he did the exact opposite;
(c)there was a degree of force towards the child;
(d)the offending was opportunistic and driven by alcohol (although this was no excuse);
(e)there was an element of persistency in the conduct;
(f)the child was young and vulnerable and could well be scarred emotionally and psychologically.
The sentencing judge imposed terms of imprisonment of 4 years on each of the sexual penetration counts and 1 year for each indecent dealing. He also imposed 1 year for the assault occasioning grievous bodily harm and 8 months for the threat to injure. He then said that there should be some degree of accumulation, bearing in mind the degree of criminality of the behaviour, and also bearing in mind the principles relating to totality. To achieve this his Honour made the 4 year terms for count 2 and count 6 cumulatively on one another but concurrently with the terms for the other counts on the indictment.
The terms for the counts in the s 32 notice were ordered to be served concurrently with one another but cumulative upon the terms imposed for the counts in the indictment. The result was a total term of 9 years commencing on 17 December 2007, the date on which the appellant had been taken into custody. The appellant was made eligible for parole.
The grounds of appeal
In his notice of appeal the appellant advanced three grounds. First, that his Honour had failed to apply the transitional provisions to the sentence of 9 years. Secondly, that his Honour had overlooked or underestimated the plea of guilty in circumstances where the appellant voluntarily disclosed his guilt on counts 1 to 6 when the offences would not have come to light and (or) been prosecuted but for such disclosure.
In the third ground of appeal the appellant contends that the sentence was manifestly excessive, particularly having regard to:
(a)the plea of guilty;
(b)the standards of sentencing imposed for multiple offending against children;
(c)the principle of totality; and
(d)the voluntary disclosure of guilt on all counts but in particular counts 1 to 6 where, but for such disclosure, these offences would not have come to light and (or) been prosecuted.
Ground 1 was abandoned shortly before the hearing of the appeal. Counsel for the appellant acknowledged that, in the light of amendments to Sentencing Act 1995 sch 1, which came into force on 14 January 2009, the contention (even if successful) would have no practical effect.
Ground 2 - the appellant's voluntary disclosures
The gravamen of the second ground of appeal is that the appellant was entitled to a greater discount for the plea of guilty that would ordinarily be given because it was his disclosure of the offences which enabled the State to launch the prosecution.
Counsel for the appellant submitted that, based on what JC said in her interview, the State could only advance a case on counts 7 and 8. She had not been able to give any particular of the wrongdoing alleged in counts 1 to 6. All of that information had come from the appellant. Counsel referred to Schriever v The State of Western Australia [2008] WASCA 133 . There, the offender had been charged with a series of sexual offences involving children. One of the offences was an act of cunnilingus performed while the child was asleep. It was not part of the initial complaint made to police. But when he was interviewed by police he admitted all offences and voluntarily disclosed the additional offence we have mentioned. Because the child was asleep it would not otherwise have come to light. Steytler P said, [22]:
What sets this case apart is the fact that the offence only came to light as a result of the appellant's voluntary disclosure, in circumstances in which it could not otherwise have come to light. It is well recognised that, when a conviction follows upon a plea of guilty that is itself the result of a voluntary disclosure of guilt by the offender, a further element of leniency enters into the sentencing decision: R v Ellis (1986) 6 NSWLR 603, 604 (Street CJ, Hunt & Allen JJ concurring); and see also Cameron v The Queen [2002] HCA 6; (2002) 209 CLR 339 [65] (Kirby J); Webb v The Queen [2003] WASCA 266 [38] (Malcolm CJ); R v Brazel (2005) 153 A Crim R 152 [21] (Callaway JA, Batt JA & Williams AJA concurring); and H v The State of Western Australia [2006] WASCA 53 [13] ‑ [14].
We have no difficulty with the statement of principle set out in this passage. But it seems to us that the circumstances of this case are quite different.
JC and her mother were interviewed before the police spoke to the appellant. JC described the incident that is the subject of counts 7 and 8. She told the police officers that there were other incidents in which the appellant had interfered with her. In the initial part of her interview she was unable to give any details but towards the end she described a second incident in which the appellant came into her bedroom through a window and, during the incident, the appellant had 'pulled [her] ears until [she] opened [her] mouth, he was pulling on [her] ears'. This has some of the factual elements of counts 5 and 6. On the last page of the record of interview the interviewer noted that JC had referred to two occasions on which she had been interfered with. In other words, we do not think it is correct to say, as the appellant contends, that the State's case on all counts (except counts 7 and 8) was made possible solely because of the appellant's disclosures.
But there is another, broader, reason why we think the circumstances of this case are different from Schriever and why the principle for which that case stands does not apply with as much force here. Early in the appellant's record of interview the interviewer said to the appellant 'you've been advised of what we intend to talk about'. He went on to say that it would first be necessary to ascertain information about the appellant's family and general history. No questions were asked, at that stage, about particular offences or offending conduct. The interviewer then said this:
[JC]'s spoken to us, okay, and also [JC's mother] in regards to some things that's been happening with her. … [W]e're here to talk to you about that, all right. So what I am going to do is leave it open to you, at this point, to tell us what you wish to about what's been happening with [JC].
It was from this point that the appellant made the admissions about the extent of his misconduct towards JC. Towards the end of the record of interview, the police officers indicated that there was another matter that would be dealt with separately. Although the 'other matter' is not identified we think it is a reasonable inference that it involves the 15 December 2007 assault on JC's mother.
The objective circumstances in which these exchanges occurred are as follows. First, JC's mother knew about some episodes of sexual misconduct by the appellant towards JC. This is because at some time after the incident the subject of counts 3 and 4 the appellant told her about the misconduct. Secondly, on the evening before the police interview there had been a serious altercation between the appellant and JC's mother and the latter reported it to the police. Thirdly, prior to the interview between the police and the appellant, the interviewing officers had spoken both to JC and her mother about the complaints of sexual misconduct. These are all matters of which the appellant would have been aware at the time he was interviewed. It is true that he did not know, at the time he made the admissions, exactly what JC and (or) her mother had said to the police. But he knew that JC's mother was aware that sexual misconduct had occurred and he must have been aware of the prospect that she had passed on this information.
This, it seems to me, detracts from the contention that, but for the voluntary disclosures made by the appellant, the offences would never have come to light. Certainly, if all that the prosecution had to rely on was what JC said in the interview, it would have been difficult to indict on all of the counts. But that is a different matter. It reflects on the more general question of the mitigating effect of the guilty plea and the avoidance of a trial. But those considerations can be accommodated within the confines of ground 3.
In our view, ground 2, as a discrete challenge to the efficacy of the sentence, has not been made out.
Ground 3 - is the sentence manifestly excessive?
The appellant did not appeal against the sentences handed down in respect of the s 32 notice. Accordingly, the real question is whether the aggregate sentence of 8 years imposed in respect of the eight counts in the indictment is manifestly excessive.
The maximum penalty for the sexual penetration offences is 20 years, while that for the indecent dealings is 10 years. All sexual offences against children are serious. The dominant sentencing principles are punishment, general and personal deterrence and the protection of vulnerable children: Rock v The State of Western Australia [2007] WASCA 121.
One of the bases on which the appellant challenges the sentences is that they are excessive having regard to the standards of sentencing imposed for multiple offending against children. On numerous occasions the court has warned that there is no tariff for sexual offences against children and reference in 'micro‑detail' to other cases of sexual offending which have some similarities to the case under consideration is of very limited value. Each case depends on its own facts. Nonetheless, where the point in issue is whether a term of imprisonment is within or outside an appropriate range, it is useful to consider what are the usual sentences imposed: VIM v The State of Western Australia [2005] WASCA 233; (2005) 31 WAR 1 [301]; MPD v The State of Western Australia [2008] WASCA 57 [77].
Such an exercise was carried out in VIM. The court examined a number of decisions handed down between 1999 and 2005 involving multiple offences against children (five or more counts) and in which there had been a guilty plea. For comparison purposes, some of the terms were adjusted to reflect what would have been imposed after the coming into operation of the Sentencing Legislation Amendment and Repeal Act 2003 (WA). The court concluded [309] that 'lower end' offending incurred terms of 2 years and 8 months; the most common sentences were 6 years and 8 months; and about two‑thirds of the sentences would fall within the range 6 years and 8 months to 12 years and 8 months. If that exercise reflects the appropriate range, it is difficult to see how the aggregate sentence of 8 years in this case can be said to be outside the range.
Counsel for the appellant referred to two decisions in support of the contention that this sentence was out of kilter with comparable cases. In Schriever the offender (S) pleaded guilty to 9 counts involving two children aged between 5 and 8 and 10 and 11 years respectively. The offences took place over a period of about three years. There were five counts of indecent dealing (touching the girls vagina), one of sexual penetration (cunnilingus), two of indecent dealing (touching or masturbating a boy's penis) and one of sexual penetration (fellatio). S was between 23 and 26 years of age at the time of the offences. He had no prior convictions and the psychological reports were favourable. On appeal a total sentence of 4 years and 8 months was not disturbed, save for a reduction of 6 months on the cunnilingus count to accommodate the factor discussed under ground 2 in this appeal.
There are significant points of departure between Schriever and this case. Whatever leniency S might have been afforded because of his clean record and prospects for the future would not have been available to the appellant. The psychological report indicated that S was aware of the impact of the sexual assaults on the victims and had sound awareness of victim empathy. The author of the pre‑sentence report in this case said that, while expressing remorse, the appellant showed little real insight into the effect of his actions on his young victim.
There is a further matter which illustrates the difficulty of making comparisons between cases. All offences of sexual penetration are serious and it is not appropriate to say that one form of penetration is necessarily or inherently more serious than any other. So much will depend on the circumstances of and surrounding the impugned conduct in a particular case. In the appellant's case there were four counts of sexual penetration while in Schriever there were two. One of the acts in Schriever was performed while the child was asleep. The victim was unaware of it. We do know what happened to JC. On one view of it, what happened to the victim in that count in Schriever may have been less traumatic to her than the impugned acts were on JC. It is very difficult to make a comparison between the acts perpetrated against JC and those on the victims in Schriever.
The other case referred to by counsel for the appellant is Webb v The Queen [2003] WASCA 266. The offender (W) was charged with five counts of indecent dealing and two counts of sexual penetration and was sentenced to a total of 8 years which, in post‑transitional terms, equates to a term of 5 years and 4 months. Neither of the penetration counts was of the same type as those perpetrated against JC. The offences occurred over a three or four month period when the child was 14 and W was 38. Again, it is difficult to draw a comparison between W's offences and those of the appellant.
In our view it has not been demonstrated that the effective term of 8 years for the eight counts on the indictment is manifestly excessive having regard to the standards of sentencing imposed for multiple offending against children.
In the particulars for ground 3 the appellant also draws attention to the plea of guilty and the voluntary disclosure of some of the offences. We would not want it to be thought that what we have said in relation to ground 2 indicates a view that the appellant is not entitled to any allowance or leniency on account of those matters. He clearly is. The child was spared the trauma of further interviews with police and prosecutors before trial and of the trial process itself. That is to the appellant's credit. But it cannot be said that the sentencing judge overlooked those matters. His Honour referred specifically to the plea of guilty, the appellant's remorse and his cooperation with police.
The sentencing judge did not specify a starting point or indicate the percentage deduction for the guilty plea but he was not obliged to do so: Casbolt v The State of Western Australia [2005] WASCA 41 [3] ‑ [5]; Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357 [27]. The real question is whether the actual sentence ultimately imposed is excessive. The appellant has not convinced us that it was.
The final point raised by the appellant is that the overall sentence offends the totality principle. The principle and the authorities in which it has been explained are well known. A sentencing authority imposing a series of sentences must calculate the sentence for each offence for which it is imposed but must then review the aggregate sentence and consider whether the resulting term is just and appropriate. It is often expressed in this way: 'when a number of offences are being dealt with and specific punishments in respect of them are being totted up to make a total, it is always necessary for the court to take a last look at the total just to see whether it looks wrong': BPR v The State of Western Australia [2007] WASCA 200 [28].
This means that the sentence initially arrived at for an individual offence or offences must sometimes be adjusted so that the overall result of the combined sentences is just and appropriate. This can be done either by making sentences wholly or partially concurrent or by lowering the individual sentences below what would otherwise be appropriate.
This is what the sentencing judge did. He took into account the overall criminality of the appellant's behaviour and referred expressly to the totality principle. In terms of criminality, given the six factors mentioned by his Honour (set out above) it is difficult to cavil with the view that these were serious offences of their type. There were four separate incidents and the appellant could not contend (not that he does) that all terms should have been concurrent. The sentencing judge adjusted the resulting terms by treating some sentences as concurrent and some as cumulative. We are satisfied that he took the totality principle properly into account.
Conclusion
It has not been demonstrated that any error in principle occurred during the sentencing process. Nor has it been demonstrated that his Honour erred in the way he exercised the sentencing discretion. We would dismiss the appeal.
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