RLB v The State of Western Australia

[2021] WASCA 82

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT  :   THE COURT OF APPEAL (WA)

CITATION:   RLB -v- THE STATE OF WESTERN AUSTRALIA [2021] WASCA 82

CORAM:   BUSS P

MAZZA JA

BEECH JA

HEARD:   7 APRIL 2021

DELIVERED          :   11 MAY 2021

FILE NO/S:   CACR 181 of 2019

BETWEEN:   RLB

Appellant

AND

THE STATE OF WESTERN AUSTRALIA

Respondent

ON APPEAL FROM:

Jurisdiction              :   DISTRICT COURT OF WESTERN AUSTRALIA

Coram:   SCOTT DCJ

File Number            :   IND 2030 of 2018

Catchwords:

Criminal law - Appeal against sentence - Seven counts of indecent dealing with a child over the age of 13 years and under the age of 16 years - Whether total effective sentence of 6 years' imprisonment breached the first limb of the totality principle

Legislation:

Criminal Code (WA), s 321(4), s 321(8)(a)

Result:

Time within which to appeal extended to 19 November 2019
Leave to appeal on sole ground of appeal granted
Appeal upheld
Appellant resentenced

Category:    D

Representation:

Counsel:

Appellant	:	In person
Respondent	:	R G Wilson

Solicitors:

Appellant	:	In person
Respondent	:	Director of Public Prosecutions (WA)

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

AIM v The State of Western Australia [2014] WASCA 155

BGE v The State of Western Australia [2013] WASCA 136

Cross v The State of Western Australia [2018] WASCA 86; (2018) 272 A Crim R 549

DKA v The State of Western Australia [2015] WASCA 112

EPD v The State of Western Australia [2011] WASCA 264

Ferry v The Queen [2003] WASCA 207

Giglia v The State of Western Australia [2010] WASCA 9

GJT v The State of Western Australia [2011] WASCA 263; (2011) 214 A Crim R 272

HFM v The State of Western Australia [2012] WASCA 217

Hodder v The State of Western Australia [2005] WASCA 257

HTD v The State of Western Australia [2018] WASCA 202

JD v The State of Western Australia [2008] WASCA 147

JS v The State of Western Australia [2012] WASCA 198

KJW v The State of Western Australia [2012] WASCA 162

KMT v The State of Western Australia [No 2] [2018] WASCA 49

L v The State of Western Australia [2007] WASCA 186; (2007) 176 A Crim R 135

LFG v The State of Western Australia [2015] WASCA 88; (2015) 48 WAR 178

LJP v The State of Western Australia [2010] WASCA 85

LWJR v The State of Western Australia [2009] WASCA 200

MHE v The State of Western Australia [2019] WASCA 133

NN v The State of Western Australia [2018] WASCA 92

P v The State of Western Australia [2007] WASCA 220; (2007) 177 A Crim R 69

PDT v The State of Western Australia [2012] WASCA 134

PJB v The State of Western Australia [2018] WASCA 150

PNS v The State of Western Australia [2016] WASCA 174

R v Haynes [2002] WASCA 219

RGT v The State of Western Australia [2017] WASCA 120

RNN v The State of Western Australia [2010] WASCA 26

SAP v The State of Western Australia [2011] WASCA 155

Schriever v The State of Western Australia [2008] WASCA 133

SCN v The State of Western Australia [2017] WASCA 138

Scrutton v The Queen [2000] WASCA 360

SGT v The State of Western Australia [2017] WASCA 136

Stephenson v The Queen [2001] WASCA 98

The State of Western Australia v BKJ [2018] WASCA 136

The State of Western Australia v Hassell [2014] WASCA 158

The State of Western Australia v PJW [2015] WASCA 113

The State of Western Australia v Prince [2011] WASCA 22

The State of Western Australia v Shephard [2018] WASCA 140

The State of Western Australia v Staniforth-Smith [2014] WASCA 170

Underwood v The State of Western Australia [2018] WASCA 189

Williams v The State of Western Australia [2018] WASCA 161

JUDGMENT OF THE COURT:

Introduction

1. The appellant was convicted, after a trial before a judge and jury, of seven counts of indecently dealing with a child of or over the age of 13 years and under the age of 16 years, contrary to s 321(4) of the Criminal Code (WA) (the Code).[1]  He was sentenced to terms of immediate imprisonment of either 18 months or 2 years on each count.  The sentences were structured so that his total effective sentence was 6 years' imprisonment.

   [1] His appeal against conviction was dismissed - see RLB v The State of Western Australia [2021] WASCA 73.

2. The appellant challenges his sentence on the sole ground that the total effective sentence breaches the first limb of the totality principle.

3. For the reasons that follow, we would uphold the appeal and resentence the appellant to a total effective sentence of 4 years 6 months' immediate imprisonment.

The facts

1. The judge's findings as to the facts of the appellant's offending, which are not challenged on appeal, may be summarised as follows.[2]

   [2] His Honour's findings of fact are set out at ts 322 - 323.

2. The seven offences occurred on three separate occasions in the two‑month period of February to March 2009 while the victim was 13 years of age.  The victim's mother is the appellant's half-sister.  The appellant was in an incestuous sexual relationship with the victim's mother at the time of the offending.

3. Counts 1 - 3 occurred while the victim and her mother were at the appellant's house.  They all fell asleep on an L-shaped couch in the lounge room.  The appellant was lying next to the victim and started cuddling her from behind, touching her breasts over her clothes, before putting his hands under her top and squeezing her breasts and nipples (count 1).

4. The appellant then pushed the victim's shoulder down so that she was lying on her back and then pulled her over so that she was facing him.  She pretended to be asleep.  He took her hand and put it down his board shorts, using her hand to rub his penis (count 2).  She told the appellant to leave her alone and turned onto her back.  The appellant let go of her hand.

5. The appellant then woke the victim's mother and they went into the bedroom.  About an hour later the victim went into the bedroom and got into the bed between the appellant and her mother.  The appellant then cuddled the victim from behind and thrust his penis against her bottom (count 3).  Both parties were clothed when count 3 was committed.

6. On another occasion, not long after the first incident, the victim, her mother and the appellant were again in the appellant's bed.  The appellant was lying between the victim and her mother.  The victim's mother was asleep.  The appellant grabbed the victim's hand, put it under his pants and used it to rub his penis (count 4).  The victim fell asleep with her hand on his penis, waking up when she felt her mother's hand on her hand.

7. On a further occasion, the victim and the appellant went to bed alone.  The appellant cuddled the victim from behind, while she was lying on her side.  He felt her breasts under her top, lifted her bra above her breasts and squeezed her breasts and nipples (count 5).  He then put his hand down her pants, inside her underwear and touched the top of her vagina (count 6).  The appellant then pulled the victim on top of him, grabbed her bottom and thighs and pushed her bottom against his penis, and then grinded his penis on her vagina (count 7).  Both parties were clothed when count 7 was committed.

The appellant's personal circumstances

1. The appellant was aged 30 at the time of the offending and was 41 years old when he was sentenced.  He is single, never having married or had children.

2. The appellant has had a reasonably consistent employment history, having worked as a plasterer, a delivery driver and, in more recent years, having gained some work in mining.

3. He did not have any substance abuse issues.

4. The appellant had a limited criminal record, which included some cannabis related offences in about 2009 and the conviction for the incest offence with the victim's mother.  The judge observed that nothing in the record suggested that the appellant had a disregard for the law or any specific risk of reoffending.[3]

   [3] ts 323 - 324.

Sentencing remarks

1. The judge referred to the profound effect of the appellant's offending on the victim, as was apparent from her victim impact statement.  The judge observed that it was not surprising that a girl of her age had found it difficult to live a normal life, her innocence having been taken.  The judge observed that the victim's life would be adversely affected for a long time to come.

2. The judge identified that the appellant's offending had several aggravating features:[4]

   (1)There was a significant disparity in the age of the appellant and the victim.

   (2)As a young teenager, the victim was vulnerable to the appellant's sexual approaches.

   (3)As the victim's uncle, the appellant was in a position of trust; his offending involved an abuse of that trust.  Further, the appellant knew that the victim had a crush on him, which enabled him to commit these offences.

   (4)The appellant's offending was not isolated.  There were seven offences committed in three incidents albeit over a relatively short period of two months.

   (5)The offending had a significant effect on the victim.

   [4] ts 324 - 325.

3. After referring to a number of well-known sentencing principles, the judge imposed the following sentences:

   Count 1 - 18 months' imprisonment.

   Count 2 - 2 years' imprisonment.

   Count 3 - 18 months' imprisonment.

   Count 4 - 2 years' imprisonment.

   Count 5 - 18 months' imprisonment.

   Count 6 - 2 years' imprisonment.

   Count 7 - 2 years' imprisonment.

4. The judge considered that there was a need for some accumulation of the sentences.  His Honour considered it appropriate to accumulate the sentences on counts 2, 4 and 6, to produce a term of 6 years, which he considered properly reflected the appellant's criminality in all of the circumstances

Extension of time to appeal

1. The appellant requires an extension of time to appeal.  The delay in the appeal, which was less than three months, arose from the appellant's attempts to get legal assistance for an appeal against his sentence.[5]  Taking into account the length of the delay, the appellant's explanation, the merits of the appeal and the fact that the respondent does not oppose an extension, we would grant an extension of time to appeal.

   [5] WAB 78 - 79.

The appellant's ground of appeal and submissions

1. As already noted, the sole ground of appeal alleges that the total effective sentence infringed the first limb of the totality principle.

2. The appellant refers to a large number of cases involving a wide range of offending, suggesting that they establish the relevant sentencing standards.[6]  The appellant refers to:  MHE v The State of Western Australia;[7] Underwood v The State of Western Australia;[8] HTD v The State of Western Australia;[9] Williams v The State of Western Australia;[10] PJB v The State of Western Australia;[11] The State of Western Australia v BKJ;[12] NN v The State of Western Australia;[13] Cross v The State of Western Australia;[14] KMT v The State of Western Australia [No 2];[15] SCN v The State of Western Australia;[16] SGT v The State of Western Australia;[17] RGT v The State of Western Australia;[18] PNS v The State of Western Australia;[19] The State of Western Australia v PJW;[20] DKA v The State of Western Australia;[21] LFG v The State of Western Australia;[22] The State of Western Australia v Staniforth-Smith;[23] AIM v The State of Western Australia;[24] The State of Western Australia v Hassell;[25] BGE v The State of Western Australia;[26] PDT v The State of Western Australia;[27] JS v The State of Western Australia;[28] KJW v The State of Western Australia;[29] HFM v The State of Western Australia;[30] EPD v The State of Western Australia;[31] GJT v The State of Western Australia;[32] SAP v The State of Western Australia;[33] LJP v The State of Western Australia;[34] RNN v The State of Western Australia;[35] LWJR v The State of Western Australia;[36] JD v The State of Western Australia;[37] Schriever v The State of Western Australia;[38] P v The State of Western Australia;[39] L v The State of Western Australia;[40] Hodder v The State of Western Australia;[41] Ferry v The Queen;[42] Stephenson v The Queen;[43] R v Haynes;[44] and Scrutton v The Queen.[45]

   [6] Appellant's submissions [2].

   [7] MHE v The State of Western Australia [2019] WASCA 133.

   [8] Underwood v The State of Western Australia [2018] WASCA 189.

   [9] HTD v The State of Western Australia [2018] WASCA 202.

   [10] Williams v The State of Western Australia [2018] WASCA 161.

   [11] PJB v The State of Western Australia [2018] WASCA 150.

   [12] The State of Western Australia v BKJ [2018] WASCA 136.

   [13] NN v The State of Western Australia [2018] WASCA 92.

   [14] Cross v The State of Western Australia [2018] WASCA 86; (2018) 272 A Crim R 549.

   [15] KMT v The State of Western Australia [No 2] [2018] WASCA 49.

   [16] SCN v The State of Western Australia [2017] WASCA 138.

   [17] SGT v The State of Western Australia [2017] WASCA 136.

   [18] RGT v The State of Western Australia [2017] WASCA 120.

   [19] PNS v The State of Western Australia [2016] WASCA 174.

   [20] The State of Western Australia v PJW [2015] WASCA 113.

   [21] DKA v The State of Western Australia [2015] WASCA 112.

   [22] LFG v The State of Western Australia [2015] WASCA 88; (2015) 48 WAR 178.

   [23] The State of Western Australia v Staniforth-Smith [2014] WASCA 170.

   [24] AIM v The State of Western Australia [2014] WASCA 155.

   [25] The State of Western Australia v Hassell [2014] WASCA 158.

   [26] BGE v The State of Western Australia [2013] WASCA 136.

   [27] PDT v The State of Western Australia [2012] WASCA 134.

   [28] JS v The State of Western Australia [2012] WASCA 198.

   [29] KJW v The State of Western Australia [2012] WASCA 162.

   [30] HFM v The State of Western Australia [2012] WASCA 217.

   [31] EPD v The State of Western Australia [2011] WASCA 264.

   [32] GJT v The State of Western Australia [2011] WASCA 263; (2011) 214 A Crim R 272.

   [33] SAP v The State of Western Australia [2011] WASCA 155.

   [34] LJP v The State of Western Australia [2010] WASCA 85.

   [35] RNN v The State of Western Australia [2010] WASCA 26.

   [36] LWJR v The State of Western Australia [2009] WASCA 200.

   [37] JD v The State of Western Australia [2008] WASCA 147.

   [38] Schriever v The State of Western Australia [2008] WASCA 133.

   [39] P v The State of Western Australia [2007] WASCA 220; (2007) 177 A Crim R 69.

   [40] L v The State of Western Australia [2007] WASCA 186; (2007) 176 A Crim R 135.

   [41] Hodder v The State of Western Australia [2005] WASCA 257.

   [42] Ferry v The Queen [2003] WASCA 207.

   [43] Stephenson v The Queen [2001] WASCA 98.

   [44] R v Haynes [2002] WASCA 219.

   [45] Scrutton v The Queen [2000] WASCA 360.

3. He submits that the total sentence of 6 years' imprisonment was disproportionate to his total criminality and was longer than was required to satisfy all relevant sentencing purposes.[46]

   [46] Appellant's submissions [12].

The respondent's submissions

1. The respondent emphasises the following serious features of the appellant's offending:[47]

   (1)Five of the appellant's offences involved skin-on-skin contact; two involving touching and squeezing the victim's breasts and nipples; one involving the appellant touching the victim's vagina with his hand; and two involving the appellant using the victim's hand to masturbate himself.  The other two counts involved the appellant simulating sex while both parties were clothed.

   (2)The offences were not momentary in nature, but involved a degree of persistence.

   (3)The victim was vulnerable by reason of her age and the circumstances, including that the appellant was in a sexual relationship with her mother.

   (4)The appellant was significantly older than the victim.

   (5)As an uncle to the victim, the appellant was in a position of trust and authority.  Further he knew that the victim had a crush on him.  His offending abused that trust.

   (6)As the offending occurred over three separate occasions it was not a single isolated incident and could not be seen as an aberration.

   (7)The appellant's offending had a profound effect upon the victim.

   [47] Respondent's submissions [16] - [21].

2. The respondent canvasses substantially all of the cases relied on by the appellant, submitting that none are properly seen as reasonably comparable to the present case.[48]

   [48] Respondent's submissions [33] - [52].

3. The respondent accepts that the total effective sentence of 6 years' imprisonment may fairly be regarded as towards the upper end of the range of sentences, but submits that it could not be said to be unreasonable or plainly unjust.  It submits that some accumulation of the sentences was required to properly reflect the serious nature of the appellant's overall offending, on three separate occasions, and to give effect to the primary sentencing considerations of personal and general deterrence and the need to protect vulnerable children.[49]

   [49] Appellant's submissions [53] - [54].

4. In oral submissions, the respondent submits that the terms of 5 years' imprisonment following pleas of guilty imposed in RNN and in LWJR, in which the pleas were fast-tracked, support the conclusion that the sentence in the present case was not unreasonable or plainly unjust.[50] 

   [50] Appeal ts 10 - 11.

Disposition

1. The following principles concerning the totality principle are well‑established.

2. The first limb of the totality 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), viewed in their entirety, and after 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), and the total effective sentences imposed in comparable cases.

3. The practical effect of the totality principle is ordinarily to arrive at a total effective sentence which is less than that which would have been arrived at merely by adding up all of the individual sentences imposed for each offence.  The severity or leniency of an individual sentence (which is not manifestly excessive or manifestly inadequate) is relevant in evaluating whether the total effective sentence infringes the first limb of the totality principle.[51] 

   [51] See Giglia v The State of Western Australia [2010] WASCA 9 [40].

4. The guidance afforded by comparable cases is flexible rather than rigid.  The mere fact that a sentence is within the range of sentences imposed for similar offending 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 the range does not necessarily establish that the exercise of the sentencing discretion in the particular case miscarried.

5. A sentencing range for comparable offences is merely one of the factors to be taken into account in deciding whether an individual sentence is manifestly excessive or a total effective sentence infringes the first limb of the totality principle.  A range of sentences customarily imposed is of significance for the purpose of ensuring broad consistency in the sentencing of offenders in broadly comparable cases.  However, a sentencing range for comparable cases does not fix the range of a sound exercise of the sentencing discretion in a particular case.

6. When this court dismisses an appeal against sentence, and when it allows an appeal against sentence and resentences the offender, this court's decision on the sentencing outcome does not, of itself, fix the upper or lower limit of the range.

7. If, in a particular case where an infringement of the first limb of the totality principle is alleged, there are no directly comparable cases, this court is not precluded from deciding that a total effective sentence does or does not infringe the first limb of the totality principle.  It merely has the consequence that this court has no directly comparable cases to provide a yardstick against which to judge the adequacy of the total effective sentence imposed at first instance.

1. The primary sentencing considerations for sexual offending against children are punishment of the offender, specific and general deterrence and the protection of vulnerable children.  Consequently, matters personal to the offender are of less weight than might otherwise be the case.  There is no tariff for sexual offences against children, including, specifically, for indecent dealing with a child.[52]

   [52] GJT [72]; The State of Western Australia v Shephard [2018] WASCA 140 [41].

2. The appellant's offending was undoubtedly serious.  It included the features outlined in [16] and [23] above.  Five of the appellant's offences involved skin-on-skin contact with the appellant's penis, the victim's genitalia or the victim's breasts.  The appellant's offences were committed against a 13-year-old victim who was vulnerable by reason of her age, her relationship as the appellant's niece and the fact that she had a crush on the appellant.  The offences have had a profound effect on her.

3. On the other hand, evaluation of the total effective sentence imposed on the appellant must take account of the following features (which to some degree overlap) of the appellant's offending:

   (1)None of the appellant's offences involved sexual penetration.

   (2)The maximum penalty for each of the appellant's offences was 7 years' imprisonment. See s 321(8)(a) of the Code.

   (3)Unlike a number of the cases to which the parties referred, the appellant's offences were committed against a single victim.

   (4)The appellant's offences were committed on three occasions.

   (5)The victim of the appellant's offending was a 13-year-old.  Many of the cases to which the parties referred involved younger, and often considerably younger, victims.

4. We have had regard to the cases referred to by the parties and the cases analysed by Buss JA in GJT.[53]

   [53] GJT [85] - [119]. That analysis was adopted in Shephard [43].

5. Bearing in mind the features of the appellant's offending outlined in [36] above, we accept the respondent's submission that none of the cases is reasonably comparable to the present case.

6. In our respectful opinion, the total effective sentence of 6 years' imprisonment exceeds a sentence that bears a proper relationship to the appellant's overall criminality, in all of the circumstances (including the appellant's personal circumstances).  The sentence is not merely high; it is unreasonable or plainly unjust.  Implied error has been demonstrated.

7. We do not accept the respondent's submission that the decisions of this court in RNN and in LWJR suggest that the total effective sentence of 6 years' imprisonment imposed on the appellant is not unreasonable or plainly unjust.  It is true, as the respondent emphasises, that in both RNN and LWJR, the offender was sentenced after a plea of guilty, and in the case of LWJR, a fast-track plea of guilty, whereas in the present case the appellant did not have the mitigatory benefit of pleas of guilty.  Nevertheless, both of these cases involved offending with aggravating features not applicable to the present case.

8. RNN involved 11 offences, each committed on a separate occasion, against three victims.  The dates of the offences spanned about 10 years.  Some of the offences, which occurred in the 1970s, involved oral sex which at that time, unlike the present time, did not constitute sexual penetration.  The charged offences were representative.

9. In LWJR, the appellant committed offences against two victims, both of whom were his daughters.  The offences occurred at a time when the victims were very young, one being 3 years of age and the other 5 years of age.  Some of the offences involved the appellant penetrating his older daughter's vagina with his finger and one involved the appellant placing his penis into her mouth.

10. In oral submissions, the respondent also points to the statement of this court in KMT,[54] referring to The State of Western Australia v Prince,[55] that in cases involving multiple counts of sexual offences against children and involving pleas of not guilty, sentences of between 6 years and 14 years 6 months' imprisonment have been imposed.[56]

    [54] KMT [129].

    [55] The State of Western Australia v Prince [2011] WASCA 22.

    [56] Appeal ts 12 - 13.  The respondent qualified the submission by a letter sent the day after the hearing of the appeal.

11. What was said in KMT was a summary of a survey of cases by McLure P in Prince.  All of the cases referred to by McLure P in Prince that resulted in sentences between 6 years and 14 years 6 months' imprisonment included one or more offences of sexual penetration.  That was true in Prince itself, and in KMT.  In those circumstances, contrary to the respondent's submission, what was said in KMT as to a range of sentences imposed in cases involving multiple counts of sexual offences involving children is to be taken as referring to offending that includes sexual penetration.  Consequently, the statement in KMT provides no support for the respondent's position in the present case.

12. For the above reasons, the ground of appeal is established.  We would uphold the appeal and resentence the appellant.

Resentencing

1. Neither party complained as to any of the individual sentences, which seem to us to be appropriate.  However, as explained below, we would reduce the sentence on count 5 from 18 months' imprisonment to a term of 6 months, on totality grounds.

2. In our view, some degree of accumulation is necessary to reflect the seriousness of the appellant's offending and his overall criminality.  We consider that a total effective sentence of 4 years 6 months' immediate imprisonment bears a proper relationship to the appellant's overall criminality in all of the circumstances, including the appellant's personal circumstances.  Consequently, we would reduce the sentence on count 5 to 6 months' imprisonment for totality reasons and order that the sentences on counts 4 and 5 be served cumulatively on the sentence on count 2, and on each other, with all other sentences to be served concurrently with the sentence on count 2.

3. Like the sentencing judge, we would order that the appellant be eligible for parole.  The sentence should be taken to have commenced on 8 July 2019.

Conclusion

1. For the above reasons, we would make the following orders:

   (1)The time within which to appeal is extended to 19 November 2019.

   (2)Leave to appeal on the sole ground of appeal is granted.

   (3)The appeal is upheld.

   (4)The sentences imposed by the sentencing judge on 7 August 2019 are set aside and in substitution, the appellant is sentenced as follows:

   (a)Count 1 - 18 months' imprisonment.

   (b)Count 2 - 2 years' imprisonment.

   (c)Count 3 - 18 months' imprisonment.

   (d)Count 4 - 2 years' imprisonment.

   (e)Count 5 - 6 months' imprisonment.

   (f)Count 6 - 2 years' imprisonment.

   (g)Count 7 - 2 years' imprisonment.

   (h)The sentences on counts 4 and 5 be served cumulatively upon the sentence on count 2 and upon each other.

   (i)The remaining sentences be served concurrently with the sentence on count 2.

   (j)The sentences are taken to have commenced on 8 July 2019.

   (k)The appellant is eligible for parole.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.

JR
Research Associate to the Honourable Justice Beech

11 MAY 2021