Rogers v The Queen - [2004] WASCA 147

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : COURT OF CRIMINAL APPEAL

CITATION: ROGERS -v- THE QUEEN [2004] WASCA 147

CORAM: MALCOLM CJ
TEMPLEMAN J
MILLER J

HEARD: 1 APRIL 2004

DELIVERED : 2 JULY 2004

FILE NO/S: CCA 61 of 2003

BETWEEN: STEPHEN ALEXANDER ROGERS
Applicant
AND
THE QUEEN
Respondent

ON APPEAL FROM:
Jurisdiction              :  DISTRICT COURT OF WESTERN AUSTRALIA
Coram   :VIOL DCJ
File Number             :  IND 1208 of 2002

Catchwords:

Criminal law - Sentencing - Sexual penetration of a de facto child - Criminal Code, s 329(2) - Plea of guilty - Whether sentence of 8 years excessive - Turns on own facts

Legislation:

Criminal Code, s 329(2), s 689(3)

Result:

Appeal dismissed

Category: B

Representation:

Counsel:

Applicant: In person
Respondent: Mr R E Cock QC & Mr D N Ryan

Solicitors:

Applicant: In person
Respondent: State Director of Public Prosecutions

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

"B" v The Queen [2002] WASCA 236
Bosworth v The Queen [2004] WASCA 43
BRS v The Queen (1997) 191 CLR 275
Cameron v The Queen (2002) 209 CLR 339
Dempsey v The Queen, unreported; CCA SCt of WA; Library No 960059; 9 February 1996
Hoch v The Queen (1988) 165 CLR 292
Podirsky v R (1990) 3 WAR 128
R v Chilvers [2003] WASCA 87
R v Hough [2002] WASCA 42
S v The Queen [2001] WASCA 245
Varney v Parole Board of Western Australia (2000) 23 WAR 187
Woods v The Queen (1994) 14 WAR 341

Case(s) also cited:

Nil

MALCOLM CJ: In my opinion, this application for leave to appeal against sentence should be refused for the reasons to be published by Miller J. These were serious offences of their kind in which the applicant grossly abused his parental responsibility by sexually penetrating the vagina of his stepdaughter in the context of a sexual relationship which he established with the complainant. In my opinion, while the sentences of 8 years imposed for each of the offences to be served concurrently were substantial, they were fully justified by their nature and the circumstances in which they were committed, making due allowance for the applicant's pleas of guilty.
TEMPLEMAN J: The applicant was charged with five sexual offences alleged to have been committed against a child "who he then knew to be his de facto child" and who was at the material time, under the age of 16 years. The offences were all alleged to have been committed at Rangeway, near Geraldton. It was alleged that the offences the subject of counts 1, 2 and 3 had been committed on dates unknown between 13 January 2000 and 31 May 2000. The offences the subject of counts 4 and 5 were alleged to have been committed on dates unknown between 8 February 2000 and 9 February 2001.
The offences alleged against the applicant were as follows:
1.The penetration of the complainant's vagina with his finger.
2.The penetration of the complainant's vagina with his penis.
3.The introduction of the applicant's penis into the complainant's mouth.
4.The penetration of the complainant's vagina with the applicant's penis.
5.The penetration of the complainant's vagina with the applicant's penis.
On 26 February 2003 the applicant was arraigned in the District Court on counts 4 and 5 only. The applicant pleaded guilty to both counts. The prosecution accepted the pleas of guilty to counts 4 and 5 in full satisfaction of the indictment.
The applicant was later sentenced to 8 years' imprisonment on each count, to be served concurrently. He was made eligible for parole. The applicant now seeks leave to appeal against these sentences.

I summarise the material facts, as related by the prosecutor to the sentencing Judge.
The complainant, then 11 years old, had been 8 years old when the offences were committed. The applicant was said to have been the complainant's stepfather, he having commenced a relationship with her mother in 1997. The complainant and her three siblings moved from Perth to Adelaide in 1997 to live with the applicant. In December 1999, the family returned to Western Australia: initially in Perth but moving to Geraldton in January 2000. In February 2000 the complainant's mother became unwell and she was hospitalised regularly.
While the complainant's mother was in hospital, the complainant and her siblings were left in the applicant's sole care. He had some limited assistance from the members of his family, who lived in Perth.
It was said that the complainant's mother was in hospital when the applicant committed the offence the subject of count 4. Two of the complainant's siblings were at a friend's house. The complainant's brother, who was at home, had been locked out of the house by the applicant. Only the applicant and the complainant were in the house.
The applicant called the complainant into his bedroom where she lay down on the bed next to him. Both were fully clothed. The applicant told the complainant to take off her underpants, which she did. The applicant then rolled the complainant onto her side and manoeuvred her so that he could insert his penis into her vagina, which he did. The complainant was unable to recall the duration of the act of penetration but did recall trying to push the applicant away. The applicant told the complainant that it was their "little secret".
On the day the offence charged in count 5 was committed, the complainant's mother was again in hospital. The complainant's siblings were at school but the applicant had kept the complainant home from school on that day.
The applicant called the complainant into his bedroom and onto the bed. They were initially fully clothed and it was not clear to what extent the complainant's clothing was removed. The applicant rolled the complainant onto her side and manoeuvred himself into a position, in which he held the complainant, so as to enable him to insert his penis into her vagina.
The complainant could not recall the duration of this offence either: but she recalled trying to push the applicant away with her hand, unsuccessfully. The applicant told the complainant it was their secret and she was not to tell anyone.
The prosecutor then informed the sentencing Judge about the circumstances in which the matter came to the attention of the authorities. Following that, the prosecutor told his Honour about an interview between the applicant and police officers on 27 December 2001. The interview was recorded on videotape. The prosecutor said the applicant consistently denied the allegations:
" … in fact, he went to some, one might think, extraordinary lengths in that interview. He, on not less than seven occasions in an interview that went for some 50 minutes, claimed that it was impossible for him to have penetrated the complainant due to her size.
He described on a number of occasions her size and commented on the impossibility of that."
The prosecutor then referred to other exculpatory statements made by the applicant in the course of the interview.
Pausing there, we were told by the applicant both at the hearing (where he represented himself), and in his detailed written submissions, that his protestations of innocence were in fact true, as were the various exculpatory statements he made during the course of the interview. In his written submissions to this Court, the applicant said:
"Even today I still maintain my innocence and still state that the ONLY reason that I pleaded guilty was to avoid putting my step-daughter on the stand, to be cross-examined. My barrister … told me 'in the strongest terms, I urge you NOT to go down this path'. 'I am looking forward to getting that little liar in the stand and tearing strips off her'."
The Court pointed out to the applicant that it could not deal with his application on the basis that he was innocent. By pleading guilty (however ill‑considered that course was) the applicant must be taken to have admitted each element of the relevant charge.
As to the impossibility of the applicant engaging in full vaginal penetration of the complainant, it is as well to explain that in the present context, the offence of sexual penetration is committed if there is any degree of penile penetration of the female genitalia.
The indictment refers to penetration of the vagina. This may well not have occurred. It is inconsistent with the medical evidence which was to the effect that the complainant's hymen was intact, albeit with a "v-shaped defect".
However, the offences would have been committed even if there had been only labial penetration or separation.
The applicant's protestations of innocence are inconsistent with the submission made in the course of a plea in mitigation by counsel (who was not the applicant's original counsel). Counsel said his client's instructions were:
" … that he is most sincerely and most genuinely remorseful albeit that the plea of guilty was at a late stage."
A little later, counsel told the sentencing Judge:
" … my instructions are that (the applicant) was intoxicated when these offences were committed by way of the consumption of cannabis and alcohol."
Counsel then referred to the fact that the prosecution's sentencing submissions "speak of the fact that there was a strong prosecution case". Counsel said he assumed the sentencing submissions were directed to the lateness of the plea of guilty or the question of remorse. However, counsel said, there were a number of discrepancies within the prosecution case and there was question of the credibility of one of the principal prosecution witnesses – the applicant's sister.
In submissions in reply, the prosecutor referred to a number of what were said to be very severe aggravating features. These included the young age of the complainant and the disparity between her age and that of the applicant, who was 37 years old at the material time. The prosecutor referred also to the gross breach of trust and the extent of the deviance in the applicant's behaviour which involved penile vaginal penetration against a background of similar conduct and other kinds of sexual conduct; "oral sex and the like". All these matters were said to have been premeditated.
A little later in her submissions, the prosecutor referred to the applicant's plea of guilty. The prosecutor submitted that the applicant would be entitled to very little credit for that plea, in essence, because the applicant had consistently denied the sexual offending.
The Judge did not sentence the applicant immediately after hearing submissions. The proceedings were adjourned to 15 April 2003.
The Judge's sentencing remarks were relatively brief. His Honour first referred to the applicant's plea of guilty to the two counts referred to above. He went on to say:
"It was agreed, and it's the case that you had a sexual relationship with the complainant for the year concerned in the indictment, that is, from February 2000 and (sic to) February 2001, and as well therefore as the acts of penetration involved in the offences to which you have pleaded guilty, there were acts of digital penetration of the complainant and instances of you having the complainant perform oral sex on you."
That passage in the Judge's remarks appears to relate to a statement made by the prosecutor when outlining the material facts that:
"The relationship involves such acts as digital penetration and the offender having the complainant perform oral sex on him."
In relation to that matter, the applicant's counsel had informed the Judge:
"The plea of guilty, as I understand it, your Honour, was on the basis that these offences were certainly committed and that there was (sic) ongoing acts …. The ongoing acts are certainly conceded …."
The Judge then referred to the gross breach of trust involved in the offences and the "course of sexual conduct" and "the vast disparity of ages" between the complainant and the applicant.
His Honour then spoke of the fact that despite the applicant's plea of guilty, he had attempted to avoid blame for his conduct. His Honour said:
"I accept that you told the community corrections people that the girl had attempted to initiate some of the conduct …."
However, this was a matter which the applicant's counsel told the Judge his client did not accept. Counsel had said:
"There are a couple of aspects in the pre-sentence report that my client denies, or does not accept, and one aspect is that the comment that (the applicant) believed the complainant was the instigator or the initiator. (The applicant) has said to me that that his not view. She did not instigate or initiate the sexual conduct nor did he advise the community corrections officer, so it came as some surprise to him that that comment was in there."
With all respect to the Judge, given that denial, his Honour ought not to have accepted the statement in the pre-sentence report that the applicant had said the complainant initiated some of the conduct. That being a matter which his Honour clearly regarded as being of sufficient gravity to take into account in the sentencing process, it ought not to have been accepted, unless established beyond reasonable doubt by a trial of the issue.
In a similar context, the Judge also referred to the fact that:
"The pre-sentence report and the psychological report are not particularly helpful to you."
The pre-sentence report referred to the applicant's view that the consumption of cannabis was "a legitimate coping strategy". However, that was disputed. Counsel for the applicant told the Judge:
"That may be the conclusion of the author; however, that's not (the applicant's) view …."
Again, it is not clear what aspects of the pre-sentence report were regarded by the Judge as being "not particularly helpful" to the applicant: his Honour made no other reference to that report. However, in my view, it is of concern that his Honour did not deal specifically with the applicant's denial that he used cannabis as a coping strategy.
In relation to the applicant's plea of guilty, his Honour said:
"The plea of guilty was not early and involved facing a case that was not weak by any means. It could be classed as a case of moderate to reasonable strength. There was corroborative evidence available."
It is true that the plea of guilty was not early, in the sense that it was not a fast-track plea. It was given on the day the Court convened to record the complainant's evidence in advance of the trial. But by pleading guilty, the applicant avoided the necessity for a trial with the attendant trauma which the complainant may well have suffered. I infer from the complainant's victim impact statement that she was particularly pleased by the guilty plea. She said:
"I was so glad when he plead (sic) guilty that I went home and burnt all the posters I had made … saying that I hate you so much …. It was a good fire, we all had a swim afterward (sic) to celebrate him going to jail for a long time."
I take the Judge's statement that "there was corroborative evidence available", to be a reference to the evidence of the applicant's sister. In reciting the material facts to the Judge, the prosecutor referred to an occasion in January 2002 when the complainant was visiting the applicant's sister. The prosecutor said:
"The (applicant) was present at the time when (the complainant) blurted out that she had slept with the (applicant) the night before. This evoked a response from the (applicant) that caused him to jump up, grab her by the arm and begin yelling at her, saying things like, 'I told you not to fucking tell anyone. That was our fucking secret', as he propelled her by the arm out of the house."
Later in the course of submissions the Judge asked whether the evidence of the applicant's sister would have corroborated the evidence of the complainant as to the commission of the offence. The prosecutor said it would.
In my view, however, had the matter gone to trial, it is likely there would have been considerable debate over the admissibility of that evidence: and if it was admitted, as to the extent to which it could corroborate the complainant's evidence.
If the complainant said only that she had slept in the same bed as the applicant, that would have been highly prejudicial evidence: but it would have had no probative effect in relation to the offences to which the applicant pleaded guilty. They were said to have been committed during the daytime. And it by no means follows that because the complainant had shared the applicant's bed, he must have committed the offences in question.
In BRS v The Queen (1997) 191 CLR 275 at p 299, Gaudron J citing Hoch v The Queen (1988) 165 CLR 292 at 294 said:
"Evidence of criminal or reprehensible conduct on other occasions is admissible because, when considered in conjunction with other evidence in the case, it supports an inference of guilt, in the sense that that is the only reasonable inference available."
In the present case, if the complainant's evidence was simply that she had slept in the same bed as the applicant, I do not think it could be said that the only reasonable inference available from that fact was that the applicant had committed the offences as charged.
Having regard to the matters to which I have referred. I do not think it can be said that the Judge exercised the sentencing discretion properly. His Honour took into account facts which should not have been accepted without proof: and in my view, he placed too much weight on the so-called corroborative evidence.
But that is not the end of the matter. In applications of this kind, the question which must be answered by this Court is that raised by s 689(3) of the Criminal Code. The Court will interfere only:
"if they think that a different sentence should have been passed."
In relation to that question, it is relevant to note the way in which the Judge concluded his sentencing remarks. He said:
"I have read the authorities referred to by the Crown prosecutor and most of them are distinguishable on their individual circumstances although a general tariff emerges from them. I am of the view that a sentence commencing with a period of 9 years will have been appropriate but I will give you credit for one year for the plea of guilty and the other matters making a term of 8 years. Therefore on count 4, you will be sentenced to 8 years' imprisonment. You are eligible for parole. On count 5, you are sentenced to 8 years' imprisonment, you are eligible for parole and that is concurrent with the other term …."
The applicant seeks leave to appeal against his sentence on the basis that it was manifestly excessive. In the particulars of his grounds of appeal, the applicant contends that the sentence was excessive because:
"1.Applicant had no relevant prior criminal record.
2.Absence of any threats or physical violence to complainant.
3.Plea of guilty."
In my view, there is no merit in par 1 and par 2 above. The sentencing Judge accepted that the applicant had no relevant criminal record: and his Honour sentenced on the basis that there was no violence or threat of violence.
As to par 3, the discount of one year on a sentence of 9 years represented a reduction of 12 per cent. In my view, this was appropriate, given that the guilty plea was made at a relatively late stage, albeit before the start of the trial proper.
The question is, therefore, whether in all the circumstances a starting point of 9 years' imprisonment was within the range of a sound discretion. It could be said that it was, because even if the Judge had not made the errors identified above, a sentence of 9 years' imprisonment, although severe, for a first offender, is within the appropriate range in a case such as this. That is to say, a case involving multiple offences of penile penetration of a very young child, by a much older person in a position of trust, set against a background of an admitted ongoing relationship.
The applicant referred us to two decisions of this Court in support of his submission that the sentence imposed on him was manifestly excessive. The first was Podirsky v R (1990) 3 WAR 128. There, the applicant had been convicted on two counts of rape and was sentenced to four and a half years imprisonment on each. The conviction on the second count was quashed and a judgment of acquittal entered.

There was a cross‑appeal by the Crown in relation to the sentence imposed in respect of the first count. However, it became unnecessary for that to be pursued, because the Court was required to re-sentence the applicant in respect of count 1, then standing alone.
In so doing, the Court noted the extremely serious nature of the incestuous relationship between the applicant and his teenage daughter, on whom he had forced himself. The complainant had become pregnant. She had two abortions and a third pregnancy which went full term, the baby being given up for adoption.
The case was therefore much more serious than the present case. However, the maximum penalty was then life imprisonment. The Court said:
"In all the circumstances, in our opinion, subject to the application of the totality principle, an appropriate sentence proportionate to the gravity of the offence of rape committed by (the applicant) on his 14-year-old adopted daughter would be 10 years. Having regard to the totality principle, however, we consider that the sentence which should be imposed is a sentence of 8 years. This means that the aggregate of the sentences imposed in respect of the offences committed by the (applicant) on his adopted and his stepdaughter will be 18 years, bearing in mind that the total of the sentences previously imposed of 9½ years reflected a credit for 6 months spent in custody and was, therefore, the equivalent of a sentence of imprisonment of 10 years." (at p 142)
It is therefore clear that the application of the totality principle played a significant part in the decision that the appropriate sentence in Podirsky was 8 years' imprisonment.
In any event, sentences for these kinds of offences have firmed up in more recent years as the courts have gained a better understanding of the long term effects which conduct of this kind may have on a victim, especially a young child.
The second case on which the applicant relied was S v The Queen [2001] WASCA 245. There, the applicant was convicted after trial on 12 counts involving sexual offences against his daughter over a 12 year period from the age of 6 – 18 years. The offences had all been committed under a constant threat of physical abuse to the complainant, the applicant's wife and the complainant's younger sister.
The applicant had been sentenced after trial to 11 years' imprisonment. That was reduced on appeal to 8 years' imprisonment. However, the circumstances were quite unusual. The applicant had committed the last of the offences some 17 years before the trial. He had returned to Italy and had returned voluntarily to stand his trial. Furthermore, it was conceded by the Crown that the applicant had led "what would appear to be a blameless life" in the intervening period.
The Court was of the view that some allowance should have been made by the learned sentencing Judge for the long delay in bringing the matter to trial and the fact that the applicant had apparently rehabilitated himself.
In my view, therefore, there is nothing in Podirsky v The Queen or S v The Queen which casts doubt on the appropriateness of a sentence of 9 years imprisonment (as a starting point) for offences of the kind to which the present applicant pleaded guilty.
Having said that, I am left with the feeling that if the sentence was not reduced, the applicant would be justifiably aggrieved. That is because the starting point of 9 years, albeit within the range, was nevertheless based, at least in part, on considerations which ought not to have been taken into account. That being so, I would reduce the sentence by one year.
Having regard to the changes in the sentencing legislation, which require the Court to impose sentences which are two-thirds of those which would have been imposed previously, I would now impose a sentence of 4 years 8 months imprisonment on each count, to be served concurrently. This represents two-thirds of a sentence of 7 years' imprisonment I would have imposed under the previous sentencing regime.
There are three further matters I wish to mention. The first is the comprehensive analysis of the prosecution brief which the applicant handed to us on the hearing of the appeal. This analysis is a substantial submission, in which the applicant has highlighted weaknesses in the prosecution case.
Having reviewed that submission, I think it fair to say that there were inconsistencies in the statements made by prosecution witnesses: and there is a good deal of evidence in the prosecution's brief which is clearly inadmissible. Furthermore, there were grounds for attacking the credibility of some of the prosecution witnesses, given that the charges against the applicant were brought against the background of Family Court proceedings for the custody of the complainant's older siblings.
There is evidence from the prosecution witnesses that the complainant was a sexually precocious and difficult child. Her father, who helped her to write a victim impact statement said "(the complainant) lies if she thinks she is going to get into trouble". And in her own statement the complainant said "Telling the truth means when everyone believes you …". Further, according to the complainant's stepmother, she made the complaint about the appellant well after the events, and when she was in trouble: she was being questioned by her father and stepmother about an incident at a school disco, where, according to her stepbrother and a friend she had been "dirty dancing".
It is, of course, impossible on the material before us to say where the truth lies: and it would be inappropriate to attempt to do so. Putting the applicant's case at its highest, it may be that had he gone to trial and given evidence, a competent defence counsel who exposed the weaknesses in the prosecution case would have persuaded the jury that they could not be satisfied beyond reasonable doubt of the applicant's guilt. However, those considerations are now irrelevant, because the applicant chose to plead guilty. They cannot be taken into account in this application.
The second matter arises from a letter sent by the applicant to the Court, after the application had been heard.
At the hearing of his application, the applicant asked the Court to impose an intensive supervision order in place of the balance of the term of imprisonment he is required to serve. His reason for making that request, as appears from his letter, is that he has been denied access to the Sexual Offenders' Treatment Programme because he is regarded as unsuitable having continued to maintain his innocence.
In these circumstances, the applicant is concerned that, although he has been made eligible for parole, he will not in fact be granted parole – despite his good behaviour in prison – because he remains in denial.
It would be wholly inappropriate for this Court to anticipate any decision the Parole Board might make in respect of the applicant, or to attempt to influence that decision in any way. I would simply direct the applicant's attention to the decision of this Court in Varney v Parole Board of Western Australia (2000) 23 WAR 187.
There, Ipp J with whom Malcolm CJ and Wallwork J agreed referred to "a not insignificant number of sex offenders in Western Australian prisons who are not eligible for the Sex Offender Treatment Programmes presently available solely because they deny that they are guilty of the crimes of which they have been convicted.
Ipp J continued (at [57-8]):
When regard is had to the variety of reasons why a prisoner might deny his guilt, it would be wrong to infer that merely because a prisoner asserts that he is not guilty (and therefore has not participated in a SOTP) he would be more than a minimum risk to the personal safety of people or particular individuals in the community. The denial of guilt and non-participation in the SOTP may well be relevant to this question and may tend to render the applicant unsuitable for parole, but alone they are not conclusive: R v Secretary of State for the Home Department, Ex parte Zulfikar at 442 per Stuart-Smith LJ; R v Parole Board, Ex parte Zulfikar, unreported; UKCA; 28 April 1997; Webster v Corrective Services Commission (Q) (1998) 103 A Crim R 63 at 68 per White J.
Accordingly, it would not be appropriate to make decisions dependent on a view of the risk a prisoner would present to the community by focussing solely or principally on the prisoner's failure to admit guilt. As the present regime in the Bunbury system does not allow those who deny their guilt to participate in the SOTP, it would similarly not be appropriate to take such decisions by reference solely or principally by reference to whether the prisoner concerned has participated in a SOTP. Such an approach would preclude due attention being given to other factors that might have an important bearing on the question."
The final matter was raised by the applicant in his submissions to the Court. It is a request that his residential address be suppressed "from all agencies except the police, courts and Parole Board … (and) Victim Mediation Unit".
The reason advanced by the applicant is that he fears for his personal safety on his release.
The applicant says that:
" … the last time I stated my address in the District Court, the Judge agreed that it should be suppressed, then the Crown read out my address in the Court, causing my support people to have to relocate because of harassment from people who previously did not know where I was residing."
While the Court is able to make orders suppressing the publication of statements made or evidence given in proceedings, it would be inappropriate to make orders of the kind sought by the applicant in the absence of a proper application directed to the relevant agencies. The question might well arise whether the Court has jurisdiction to make orders of the kind sought in any event.

It follows that if the applicant wishes to pursue this matter, he should approach the relevant authorities.
MILLER J: This is an application for leave to appeal against a sentence of 8 years' imprisonment imposed upon the applicant by Viol DCJ in the District Court at Perth on 15 April 2003.
The applicant was originally charged on an indictment which contained five offences against s 329(2) of the Criminal Code (WA), namely sexual penetration of a child whom he knew to be his de facto child. In the end the applicant pleaded guilty to two of those counts, each being a count that between 8 February 2000 and 9 February 2001 at Rangeway he sexually penetrated F, a child that he then knew to be his de facto child, by penetrating her vagina with his penis and that F was a child under the age of 16 years. The Crown accepted pleas of guilty to those two counts (counts 4 and 5 on the indictment) in full satisfaction of the indictment. The maximum penalty applicable for each offence was imprisonment for 20 years. The learned sentencing Judge sentenced the applicant to imprisonment for 8 years on each count, to be served concurrently.
From the sentence of 8 years' imprisonment the applicant seeks leave to appeal on the ground that the sentence was manifestly excessive. The particulars filed by the applicant (who appeared in person) particularised the ground in this way:
"1.Applicant had no relevant prior criminal record
2.Absence of any threats or physical violence to complainant.
3.Plea of guilty."
At the hearing of the application for leave to appeal the applicant sought to raise many matters which went to the question of his conviction. However, he had clearly and unequivocally pleaded guilty to counts 4 and 5 on the indictment in the District Court at Perth on 26 February 2003 and the applicant's application for leave to appeal to this Court is solely an application for leave to appeal against the severity of the sentence imposed upon him. It is not open to the Court to go behind the plea of guilty and consider the many matters outlined by the applicant in his written submissions to the Court. This point was made clear to the applicant by Malcolm CJ during the hearing of the application. It was apparently accepted by him.

The facts

The facts before the learned sentencing Judge revealed that the complainant was at the time of the commission of the two offences, 8 years of age. She was one of four children, being the third eldest in the family, and she was effectively the step‑daughter of the applicant. The applicant had commenced a relationship with the complainant's mother in or about 1997 and he and the complainant's mother had lived together between 1997 and 2001.
During the period 8 February 2000 ‑ February 2001, the applicant engaged in a sexual relationship with the complainant. The two counts on the indictment to which the applicant pleaded guilty were the most serious incidents of the sexual relationship and of course the only matters in relation to which he could be sentenced. It is sufficient to say that there was put before the learned sentencing Judge the fact that there was a background of a sexual relationship which led to the commission of the two offences.
The first offence occurred on an occasion when the complainant's mother was in hospital and the applicant had the sole care of the complainant and her siblings. He was alone with the complainant in the house on the day in question and he called her into the bedroom. She lay on the bed next to him and he told her to take her pants off, which she did. He then penetrated her vagina with his penis, although the complainant was unable to say for how long this had occurred.
The second offence occurred on another occasions when the complainant's mother was in hospital. The complainant's siblings were at school but the applicant had kept the complainant home from school on the day in question. He again called her into the bedroom and onto the bed. He again had penile penetration of her. On each occasion the applicant told the complainant to tell nobody about what had happened and that it would be a secret between the two of them.
The complainant later told her aunt what had happened. The applicant was present at the time. This caused the applicant to grab the complainant and push her out of the house. As he did so he said words to the effect "I told you not to f… tell anyone. That was our f… secret".
The applicant was interviewed by police in relation to the matter and consistently denied the allegations that were put to him, contending that it would have been impossible for him to have penetrated the applicant due to her size. He contended that persons who had provided statements against him were vindictive against him and even asserted that any physical injury to the complainant was due to a chronic masturbation problem that she had. At one point he went so far as to suggest that she had engaged in some sort of encounter with a dog.
It will be seen from all of this that the applicant was devoid of any remorse whatever. Indeed, he seemed unable to accept that he was responsible for the crimes to which he ultimately pleaded guilty. This was apparent in a psychological report put before the learned sentencing Judge. The writer of this report recounted that the applicant had appeared to attempt to justify the offences he had committed. She considered that the applicant had an elevated risk of reoffending in a similar manner.

Sentence

When the learned trial Judge sentenced the applicant he made reference to the facts of the case and concluded that there had been a very gross breach of trust on the part of the applicant. His Honour was concerned that the sexual conduct in question took place over a period of around one year and concluded that the breach of trust and the vast disparity in ages and the very young age of the complainant were the most aggravating circumstances of the case.
The learned sentencing Judge made reference to the applicant's attempt to avoid blame for his conduct, referring to the video record of interview, of which I have made mention. His Honour then noted that the applicant had pleaded guilty but pointed out that the plea was not an early one. His Honour turned to the mitigating factors which he described as limited. He noted previous criminal convictions, although not related to sexual offences, and concluded that in all the circumstances a sentence of 9 years' imprisonment on each count would have been appropriate but with a reduction of 1 year for the plea of guilty and other relevant matters, leading to a sentence of 8 years on each count to be served concurrently.

Appeal

The question before the Court is whether the sentences imposed by the learned sentencing Judge (and the ultimate sentence of 8 years' imprisonment) were manifestly excessive in the circumstances.
There is, of course, no tariff applicable in sentencing for sexual offences. No two cases are the same: "B" v The Queen [2002] WASCA 236 per Miller J at [31]. Repeated sexual offences over a substantial period of time necessarily mean that the offender's level of culpability is carried to a higher level on the scale. This was made clear in Woods v The Queen (1994) 14 WAR 341 per Anderson J at 345 ‑ 346. There his Honour said (at 345):
"Multiple prolonged aggravated sexual assault by an adult upon a young child within the family environment involving the taking advantage of a position of trust is, of course, very serious and the law demands the protection of young children from it. The dominant sentencing considerations are punishment and general and personal deterrence: see R v Wozencroft (unreported, Court of Criminal Appeal, WA, Library No 6606, 25 February 1987)."
His Honour added (at 346):
"The policy is reflected in the maximum penalty that might have been imposed on each of these counts which is six years for each of the aggravated indecent assaults and 20 years for aggravated sexual penetration. In the case of a single act of aggravated sexual assault by penial penetration, where the circumstance of aggravation is that the complainant is under the age of 16 years, it is not unusual for the courts to impose sentences of seven years or thereabouts and a sentence of six years is quite common. Where there is a series of offences, the criminality is regarded as being much higher. See the discussion in R v Podirsky (1989) 43 A Crim R 404 at 411."
In cases in which the offender has committed sexual offences in an intrafamilial setting, the principles set out by Murray J in Dempsey v The Queen, unreported; CCA SCt of WA; Library No 960059; 9 February 1996 at 6 ‑ 7, are particularly important. It is unnecessary to again enumerate the 12 factors referred to by his Honour, but they include the nature of the conduct in question; the relative ages of the offender and the victim; whether the offender was in a position of trust or authority with respect to the victim; whether the offence was repeated and if so, over what period; the degree of remorse displayed; the actual impact of the commission of the offence upon the child and; the prevalence of such offences in the community at the relevant time.
It seems to me that each of these factors is highly relevant to the sentencing exercise in the present case. In each of those I have identified the evidence tells strongly against the applicant.
In Woods v The Queen (supra), Anderson J reviewed comprehensively sentences prior to 1994 in cases of intrafamily sexual assaults. His Honour concluded at 354:
"Cases of intra family sexual assaults of young children that have attracted heavy sentences, that is, sentences of eight years or more in total, often, but not always, are cases where more than one child has been victimised or where there has 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 or aggression in one form or another, or where some degree of violence, cruelty or aggression or threats have been employed. In some cases, such as the Podirsky cases, all of those features are involved and these will generally attract very heavy sentences. In other cases not all of the features are present."

This, in my view, remains the benchmark in sentencing policy for intrafamilial sexual offence cases. Ten years have passed since Anderson J made the analysis in Woods v The Queen, and if anything, sentences in cases of intrafamilial sexual assault and/or sexual abuse have firmed up, particularly in the District Court where those sentences are first imposed. That, in my view, reflects the fact that in the last decade there has been a new awareness of the great damage done to young children who are the victims of such sexual assault or abuse.

Grounds of appeal

The grounds of appeal contend that the sentence was manifestly excessive by reason of the absence of any prior record, absence of any threats or physical violence to the complainant and the plea of guilty of the applicant.
It is true that the applicant had no criminal convictions for sexual offences but that is but one of the factors relevant to the sentencing exercise. Mitigatory factors such as this are of diminished weight in sexual assault cases. This has been clearly established in a number of cases: R v Hough [2002] WASCA 42, R v Chilvers [2003] WASCA 87, Bosworth v The Queen [2004] WASCA 43.
It is true that there were no threats or physical violence to the complainant, but that again is only one of the factors in the "Dempsey list" enumerated by Murray J in the case of that name. Very often, the age difference between the offender and the complainant is such that the offences are able to be committed by reason of that factor alone. Threats and/or physical violence are often unnecessary to enable the offender to commit the offences in question.
The plea of guilty was undoubtedly a factor to be taken into account. In this case it would seem that the advantage of the plea was that it facilitated the course of justice in the sense that the community was spared the expense of a contested trial and the complainant was not forced to give evidence. To this extent it was one of the three factors which may be involved in a plea of guilty. They are evidence of remorse, acceptance of responsibility and facilitation of the course of justice: Cameron v The Queen (2002) 209 CLR 339 per Gaudron, Gummow and Callinan JJ at 343. In this case I can see no evidence of any acceptance of responsibility or remorse.
The learned sentencing Judge considered that a discount of 1 year for the plea of guilty and other relevant matters was appropriate. That was 1 year from the 9 year head sentence with which he would have started. It does represent only a small discount, but as the learned sentencing Judge observed, the plea was not an early one and the case against the applicant was of "moderate to reasonable strength".
I have had the opportunity of reading in draft the reasons for judgment of Templeman J in which his Honour questions the extent of corroborative evidence available for the testimony of the complainant. His Honour expresses concern as to whether the evidence of the applicant's sister that the complainant stated that she had "slept with the applicant the night before" would have been admissible.
In my view, the question of whether there was or was not corroborative evidence is not to the point, as corroboration is no longer necessary in sexual assault cases. Further, it was the applicant's response to what the complainant said to his sister that was in issue. On no view of it could the complainant's statement to her aunt be evidence of complaint. What the applicant said in response about the matter being "their secret" was in my opinion clearly admissible against him as an admission against interest. Once admitted, it was a powerful piece of evidence against him as it was clearly capable of supporting the prosecution case that there had been intimacy between the complainant and the applicant. His reaction was capable of being construed as the reaction of a guilty mind. The learned sentencing Judge was, in my view, entitled to regard the prosecution case as being of "moderate to reasonable strength".
In all the circumstances I consider the sentence of 8 years' imprisonment imposed in relation to each count was squarely within the range of sentences that might have been imposed for offences of this nature and I would refuse application for leave to appeal.