Rowan v The State of Western Australia

[2009] WASCA 185

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT :   THE COURT OF APPEAL (WA)

CITATION:   ROWAN -v- THE STATE OF WESTERN AUSTRALIA [2009] WASCA 185

CORAM:   OWEN JA

McLURE JA
NEWNES JA

HEARD:   6 OCTOBER 2009

DELIVERED          :   28 OCTOBER 2009

FILE NO/S:   CACR 19 of 2009

BETWEEN:   MATHEW DESMOND ROWAN

Appellant

AND

THE STATE OF WESTERN AUSTRALIA
Respondent

ON APPEAL FROM:

Jurisdiction              :  DISTRICT COURT OF WESTERN AUSTRALIA

Coram  :O'SULLIVAN DCJ

File No  :IND 112 of 2008

Catchwords:

Criminal law - Sentence - Multiple sexual offences committed against four complainants aged under 16 years - Appellant aged between 74 and 75 years at the time of the offences - No relevant prior convictions - Fast-track plea of guilty - Turns on own facts

Legislation:

Nil

Result:

Appeal allowed
Total sentence of 15 years' imprisonment set aside
Total sentence of 8 years' imprisonment imposed

Category:    D

Representation:

Counsel:

Appellant:     Ms K J Farley

Respondent:     Mr D Dempster

Solicitors:

Appellant:     Legal Aid (WA)

Respondent:     Director of Public Prosecutions (WA)

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

Gulyas v The State of Western Australia [2007] WASCA 263

Roffey v The State of Western Australia [2007] WASCA 246

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

1. JUDGMENT OF THE COURT:    The appellant seeks an extension of time to appeal and to appeal against a total effective sentence of 15 years' imprisonment for one count of sexual penetration of a child between the ages of 13 and 16 years (complainant 1); six counts of sexual penetration of a child under the age of 13 years (complainants 2, 3 and 4); three counts of indecent dealing with a child under the age of 13 years (complainants 2 and 3); one count of procuring a child under the age of 13 years to do an indecent act (complainant 3); one count of encouraging a child under the age of 13 years to engage in sexual behaviour (complainant 3); and one count of indecent dealing with a child between the ages of 13 and 16 years (complainant 1).  At the time of the offences, complainant 1 was aged 14 ‑ 15 years, complainant 2 was aged 11 ‑ 12 years, complainant 3 was aged 11 years and complainant 4 was aged 8 ‑ 9 years.  Complainants 3 and 4 were sisters.

2. The offending occurred in the period between 31 December 2006 and 1 January 2008 when the appellant was aged between 74 and 75 years.  All of the sexual penetration offences involved cunnilingus.

3. The appellant was a widowed pensioner at the time of the offending.  His wife, whom he married when he was 20, died in 1990 and he had lived alone since her death.  The appellant entered a fast‑track plea of guilty and had no relevant prior convictions.

4. The sentences were imposed on 21 October 2008.  A total sentence of 15 years equates to a sentence of 22 years and 6 months under the law as it stood prior to the commencement of the Sentencing Legislation Amendment and Repeal Act 2003 (WA).

5. The state conceded that the total effective sentence of 15 years infringes the first limb of the totality principle.  The first limb of the totality principle requires that the total effective sentence bear a proper relationship to the overall criminality involved in all the offences, viewed in their entirety and having regard to the circumstances of the case, including those referable to the offender personally:  Roffey v The State of Western Australia [2007] WASCA 246 [24]. The state's concession of error by the sentencing judge is correct. There is no objection to an extension of time, the delay being adequately explained. In the circumstances, the orders made by the sentencing judge for cumulation and concurrence must be set aside. There is no challenge to the separate sentences imposed for each offence. Relevant details are as follows:

Count	Conviction	Sentence	Maximum
1	Sexual penetration (cunnilingus) of a child over 13 and under 16 years (complainant 1)	5 years	14 years
2, 3, 6, 9, 10, 11	Sexual penetration (cunnilingus) of a child under 13 years (complainants 2, 3 and 4)	6 x 5 years	20 years
5, 8, 13	Indecent dealing with a child under 13 years (complainants 2 and 3)	3 x 2 years	10 years
12	Indecent dealing with a child over 13 and under 16 years (complainant 1)	2 years	7 years
4	Procuring a child under 13 years to do indecent act (complainant 3)	3 years	10 years
7	Encouraging a child under 13 years to engage in sexual behaviour (complainant 3)	3 years	20 years

1. The procuring offence involved the appellant procuring complainant 3 to dance naked in his presence (count 4).  The indecent dealing offences involved the appellant touching complainant 3's breasts (count 5), touching complainant 3's breasts and vagina (count 8), fondling complainant 2's breasts and pubic area (count 13) and fondling and kissing complainant 1's breasts (count 12).  The encouraging offence involved a request by the appellant to put his penis in complainant 3's vagina.

2. The appellant's offending was not associated with the use of violence, intimidation or threatening behaviour and there was no evidence of any grooming.  The appellant secured the complainants' agreement to participate in the conduct by offering and paying money.  On one occasion one complainant received money and alcohol.

3. The appellant was born on 19 February 1932 and was aged 76 at the time of sentencing.  He suffers from no significant (for sentencing purposes) physical or mental disorder.  He was socially isolated and experiencing loneliness at the time of the offending. 

4. The principles to be applied when sentencing a person of advanced years are comprehensively examined by Steytler P (with whom the other members of the court agreed) in Gulyas v The State of Western Australia [2007] WASCA 263. Steytler P summarised the broad general principles as follows:

   (1)Where moral culpability is reduced by reason of advanced age (which will inevitably mean that the advanced age is coupled with some other factor that is a consequence of it, for example when there is an age related mental impairment), allowance should be made for that factor.

   (2)Where there is evidence sufficient to justify the conclusion that circumstances associated with advanced age (for example, continuous ill health, or ill health coupled with physical or mental frailty) will make imprisonment more arduous for the offender than is normal, allowance should be made for this.

   (3)Account may also be taken of hardship for the offender arising out of his or her knowledge that a lengthy sentence of imprisonment is likely to destroy any reasonable expectation of useful life after release.  However, the punishment must still reflect the crime and the seriousness of the offending behaviour may be such that the offender has forfeited the right to any reasonable expectation of useful life after release.

   (4)Deterrence and denunciation are important even in the case of an offender of advanced age. However, where there are factors associated with age that justify a more lenient sentence, the general public will understand why the sentence is less severe than might otherwise have been the case and the purposes of deterrence and denunciation will still be served. However, if this is to be achieved, the punishment must still reflect the seriousness of the crime [54].

5. One factor in this case which is likely to be age‑related is the appellant's understanding that cunnilingus is different in nature (and seriousness) from penetration by penis.  That belief is reflected in the legislative history.  Cunnilingus was first included in the definition of sexual penetration in the Criminal Code (WA) by the Acts Amendment (Sexual Assaults) Act 1985 (WA). Moreover, prior to the commencement of the Acts Amendment (Sexual Offences) Act 1992 (WA) the cunnilingus offences committed by the appellant would have fallen within less serious categories of offences, such as indecent dealing or indecent assault.

6. It is now accepted that the seriousness of the offence of sexual penetration depends upon the circumstances of the offending as a whole, not just the nature of the penetration.  However, other things being equal, the sentences imposed for penetration by penis are ordinarily somewhat higher than for other types of sexual penetration.

7. The appellant's fast‑track plea of guilty is a mitigatory factor that should attract a significant discount.  It demonstrates a willingness to facilitate the course of justice.  Further, it saved the complainants from the trauma associated with giving evidence at trial and being cross‑examined.  At the sentencing hearing, the appellant resiled from statements reported in the pre‑sentence report which might be interpreted as attributing some blame to the complainants.  The appellant's counsel advised the court that his client had come to fully appreciate they should carry none of the blame for what had occurred.  We are satisfied that the plea of guilty also shows the appellant to be remorseful.

8. As previously noted, the appellant's offending did not involve actual or threatened violence, aggression, intimidation or any grooming.  Further, the appellant was not in a position or in a relationship of trust with the complainants.  He was able to secure their participation by the offer of money.  Although consent is not an element of any of the appellant's offences, absence of consent seriously aggravates the offending.

9. This court in VIM v The State of Western Australia [2005] WASCA 233, undertook a detailed analysis of sentencing patterns for offences of a sexual nature against children. In that case the appellant was found guilty after trial of 11 counts of rape, 13 counts of indecent assault and seven counts of sexual penetration without consent against his two stepdaughters. The rape and most of the sexual offences involved penetration by penis. The indecent assault offences were of such a nature that they would be classified under the current law as sexual penetration. The sexual abuse commenced when the girls were aged 14 and continued against each for four years. The offences were representative of a continuing course of sexual abuse. Upon completion of a detailed review of sentences customarily imposed, the court in VIM upheld the state appeal against sentence and in re‑sentencing imposed a total effective sentence of 10 years' imprisonment.  It being a state appeal, the total term of 10 years reflected a reduction because of the double jeopardy principle that then applied.  On the other hand, the appellant in VIM had pleaded not guilty, was in a position of trust and the offending included multiple counts of rape and sexual penetration without consent.  Notwithstanding that the offences committed by the appellant in this case were against four complainants who were younger than the victims in VIM, the totality of the offending in VIM is substantially more serious than in this case.  Further, the case review in VIM demonstrates that the term of 5 years' imprisonment for the individual sexual penetration offences in the present case is at the high end of the customary sentencing range.

10. Having regard to all relevant sentencing factors, we would impose a total effective sentence of 8 years' imprisonment.  By any measure, that is a very significant penalty which adequately reflects the serious nature of the appellant's offending.  To give effect to that outcome, we would make the sentence of 5 years' imprisonment on count 1 cumulative with the sentence of 3 years' imprisonment on count 4 with the balance of the sentences to be served concurrently.

11. Thus, we would order that the appellant have an extension of time within which to appeal, the appeal be allowed and the orders for cumulation and concurrence made by the sentencing judge be set aside.  In lieu thereof we would order that the sentence on count 1 be served cumulatively with the sentence on count 4 with the balance of the sentences to be served concurrently, resulting in a total effective sentence of 8 years' imprisonment.