"S" v The Queen
[2001] WASCA 245
•21 AUGUST 2001
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : COURT OF CRIMINAL APPEAL
CITATION: "S" -v- THE QUEEN [2001] WASCA 245
CORAM: MALCOLM CJ
WALLWORK J
TEMPLEMAN J
HEARD: 15 JUNE 2001
DELIVERED : 21 AUGUST 2001
FILE NO/S: CCA 23 of 2000
BETWEEN: "S"
Applicant
AND
THE QUEEN
Respondent
Catchwords:
Criminal law - Sentencing - Sexual intercourse by father with child 17 years earlier - Rehabilitation of offender - He returned voluntarily from Italy to face trial - Effective sentence of 11 years' imprisonment imposed for all offences - On appeal
Legislation:
Nil
Result:
Appeal allowed
Total effective sentence reduced to 8 years' imprisonment
Category: A
Representation:
Counsel:
Applicant: Mr T F Percy QC & Mr W J Chesnutt
Respondent: Mr J Mactaggart
Solicitors:
Applicant: G A Lacerenza & Associates
Respondent: State Director of Public Prosecutions
Case(s) referred to in judgment(s):
Duncan v The Queen (1983) 47 ALR 746
Pearce v The Queen (1998) 72 ALJR 1416
R v GP (1997) 18 WAR 196
R v Olbrich (1999) 199 CLR 270
R v Ware, unreported; CCA SCt of NSW; No 60115/97; 9 July 1997
Sell v The Queen (1995) 15 WAR 240
Wagenaar v The Queen, [2000] WASCA 325
Case(s) also cited:
Bell v The Queen (1981) 5 A Crim R 347
CW (2000) 111 A Crim R 287
Johnson v The Queen, unreported; CCA SCt of WA; Library No 920112; 5 March 1992
Langridge v The Queen (1996) 17 WAR 346
Mitchell (1998) 104 A Crim R 523
Podirsky v The Queen (1989) 43 A Crim R
R v Boult, unreported; CCA SCt of Qld; Library No 458 of 93
R v CW [2000] WASCA 81
Spargo, unreported; CCA SCt of WA; Library No 940082; 21 February 1994
Trescuri v The Queen [1999] WASCA 172
Wood v The Queen, unreported; CCA SCt of WA; Library No 940388; 28 July 1994
Woods v The Queen (1995) 14 WAR 341
MALCOLM CJ: In my opinion this application for leave to appeal against sentence should be granted, the appeal allowed and the sentences of imprisonment for 11 years imposed on counts 6, 7 and 11 reduced to sentences of imprisonment for 8 years in each case. The result is that the total effective sentence of imprisonment of the applicant is reduced from 11 years to 8 years. The order for eligibility for parole will stand.
WALLWORK J: On 17 December 1999 the applicant was sentenced to an effective total of 11 years' imprisonment for three offences of carnal knowledge of his daughter, six offences of indecent dealing with the same child when she was under the age of 17 years and a further three offences of indecent assault upon the same person when she was either 17 or 18 years of age. The applicant now applies for leave to appeal against the length of the total sentence on a number of grounds involving alleged errors made by the learned sentencing Judge; also on the ground that the overall sentence was too severe in all the circumstances.
Although the application was lodged late, the respondent did not oppose an extension of time and that was granted. Leave was also granted to amend the original grounds of appeal.
The background to the offences was that between the ages of 6 and 18 years of age the complainant was sexually abused in various ways by her father, the applicant. When sentencing the applicant the Judge said that the applicant had always been a violent and aggressive father but that it was with the seriousness of the offences with which he was concerned.
His Honour said that the offences were all committed under a constant threat of physical abuse to the complainant, the applicant's wife and the complainant's younger sister. His Honour said that the complainant had been told by the applicant that that sort of conduct was a natural thing that fathers did to daughters: He said:
"You threatened, should she not comply with your wishes, to do the same thing to a younger sister, who was five years younger. I agree with the Crown that that is a significant factor making this more serious than might otherwise have been the case."
His Honour told the applicant that with respect to the three counts of incest the maximum penalty was 20 years' imprisonment. In the circumstances he considered that the proper penalty with respect to each of those counts, should be a sentence of 11 years' imprisonment. He said that with respect to the six counts of indecent dealing the maximum
penalty for those offences was a penalty of 4 years' imprisonment. With respect to five of those offences his Honour sentenced the applicant to 12 months imprisonment, 2 years' imprisonment, 2 years' imprisonment, 2 years' imprisonment, and 2 years' imprisonment respectively. His Honour said that count 8 which had involved a kissing on the mouth would normally not warrant a custodial sentence, but in the circumstances the easiest way to dispose of that was to impose a sentence of 6 months imprisonment. For the three offences of indecent assault, his Honour sentenced the applicant to 12 months imprisonment for each of those offences.
His Honour said that he considered that the law would not permit him to impose more than a total effective term of 11 years' imprisonment for all of the offences. Accordingly, he ordered that each of the sentences he had imposed be served concurrently with one another; also that the applicant should be eligible for parole.
The first ground of appeal is that the learned Judge erred in giving no weight, or insufficient weight, to the time which had passed between when the offences occurred and the applicant was convicted.
The facts were that between the time the offences ceased in 1982 and the time of the applicant's trial in 1999, being approximately 17 years, the applicant had not offended in any way. It was contended by his counsel that he had rehabilitated himself. His Honour referred to that period and said that the reason the complainant had not complained earlier was due to the threats that the applicant had made to her and the concern she had had about embarrassment to the family should the matter get out. His Honour said: "so to suggest that in any way the delay in complaining is a matter that should either favour your client or be held against the complainant, I have some difficulty with, because of the reason for it." Counsel then suggested that the delay in the hearing of the charges could be a mitigating factor.
On this application counsel for the applicant relied upon the decision in Wagenaar v The Queen, [2000] WASCA 325, which was concerned with a sentence for two counts of rape and two counts of indecent assault. In that case there had been a period of 27 years between the offences and the sentencing. The accused had rehabilitated himself during that time. He had initially received an effective 11 years' imprisonment with some of the sentences being ordered to be served concurrently. Kennedy and Pidgeon JJ agreed with the reasons of Justice Ipp who discussed previous relevant decisions.
In Wagenaar, Ipp J stated that the applicant had lived a blameless and socially constructive life for a period of some 27 years after the offences had ceased. During that time the applicant had shown signs of genuine rehabilitation and had been "a loving dutiful husband, a father of five children, a diligent employee, a committed member of his church and has contributed in other ways to the general welfare of the community." His Honour said that they were matters to which the sentencing Judge had not attached significance. His Honour referred to previous decisions where there had been a delay in sentencing accompanied by rehabilitation, including that of Duncan v The Queen (1983) 47 ALR 746, in which three members of this Court had said, at 749:
"The case is authority for the proposition that where, prior to sentence, there has been a lengthy process of rehabilitation and the evidence does not indicate a need to protect society from the applicant, the punitive and deterrent aspects of the sentencing process should not be allowed to prevail so as to possibly destroy the results of that rehabilitation."
Ipp J also referred to the words of Malcom CJ, with whom Kennedy and Ipp JJ had agreed, in Sell v The Queen (1995) 15 WAR 240 at 261 where the Chief Justice said:
"It may be accepted that where there has been a lengthy and unexplained delay in bringing a prosecution and prior to sentence there has been a successful attempt over that period by the offender at rehabilitation, so that the protection of society need not be considered, deterrent and punitive aspects should not prevail over rehabilitative aspects of the sentencing process – see Duncan v The Queen (supra) …"
Ipp J referred to R v Ware, unreported; CCA SCt of NSW; No 60115/97; 9 July 1997 in which Gleeson CJ (with whom James and Sperling JJ agreed) said:
"Delay does not of itself warrant leniency towards an offender. Many cases particularly cases of sexual abuse, only come to the notice of the authorities many years after the offences have occurred. On the other hand, depending upon the circumstances of the individual case, the fact that there has been delay may require close consideration to be given to rehabilitation that may have occurred over the period between the date of the offences and the date when the proceedings are brought before the court."
In Wagenaar Ipp J said that it has to be borne in mind that in cases where there has been an abuse of trust much less weight is given to mitigating factors: R v GP (1997) 18 WAR 196 at 207. However, his Honour went on to say:
"Nevertheless, the matters to which I have referred are of significance in arriving at an appropriate overall sentence. In my view once regard is had to these matters the sentence has to be seen as excessive. I would accordingly allow the application for leave to appeal against sentence, uphold the appeal, set aside the sentence of 8 years imprisonment imposed on the two counts of rape and substitute therefor a sentence of 6 years imprisonment…the overall effect is that the aggregate sentences amount to 9 years imprisonment."
In the present case it was submitted for the applicant that the approach adopted in Wagenaar should have been adopted in this case. It was said that Wagenaar had been a case where there had been a gross abuse of trust, but in that case the delay, in terms of a mitigating factor, had reduced the sentence by 2 years.
In answer to that proposition counsel for the respondent submitted that the rehabilitation aspects "will dissipate where there has been, what is clearly the case in this case, a gross abuse of trust." Counsel submitted that "whilst it is acknowledged that after this unfortunate chapter of offending the applicant led what would appear to be a blameless life, that factor dissipates in comparison with the seriousness of the offences."
In my opinion, in view of the Crown concession that the applicant had led "what would appear to be a blameless life" in the intervening period, there should have been some allowance made in the sentence for the delay and his rehabilitation.
In any event, in my view in this case, the three sentences of 11 years for the individual offences involving sexual intercourse with the applicant's daughter were longer sentences than would normally be imposed in cases such as this. That is not in any way to underestimate the seriousness of the offences or to overlook the question of totality. However, it is clear that the total sentence should be made up of appropriate sentences for each of the individual offences - Pearce v The Queen (1998) 72 ALJR 1416.
The second ground of appeal is concerned with the fact that the applicant had voluntarily returned from Italy to Australia to face the charges. It was conceded that he had not pleaded guilty but had contested them at a trial. However, it was submitted that by his return of his own volition the applicant had saved the State the expense and inconvenience of extradition proceedings. Further that the finalisation of the charges had enabled the matter to be put to rest, which must be regarded as being of benefit to the complainant and to her mother and sister.
It was conceded for the applicant that he had not come back to the State "full of remorse." However, it was said he had come back to resolve the matter one way or the other.
When sentencing the applicant the learned Judge said:
"I also accept that you returned to Australia of your own accord and were not brought back. I am a little puzzled about why that should have happened. Either it is simply part of a sufficient degree of confidence in yourself that nobody was actually going to go ahead with any of these matters or indeed it might indicate some degree of remorse, although I think not the latter, because in the video record of interview with the police, in substance you denied the indecent dealing that was alleged, although the jury has clearly had no difficulty at all in finding that you committed those offences."
In the plea in mitigation it had been put to the learned Judge that the applicant had come back to Australia of his own accord and that there were not any extradition proceedings that were known of. It was said that the consequences of coming back to Australia had previously been explained to him "as being consequences that he would go to jail. Of course that was told to him by his daughter S and his wife at the time."
The learned prosecutor had told the Judge that the complainant's sister and her mother had actually been pleading with the applicant not to return to Australia when he was residing in Italy in 1996, 1997 and the first part of 1998 "because they did not want to have to go through a trial of this nature."
This Court was told that after the applicant had separated from his wife, he had gone back to Italy to live with his family for a time. It was after he had left Australia for Italy that the complaint of the offences had first been made. The applicant knew he would be prosecuted if he came back and it had been possible for him to have remained in Italy. Apparently no extradition proceedings had been taken or contemplated. If he had stayed in Italy the applicant would not have been sentenced to imprisonment at all.
In answer to those propositions the counsel for the respondent conceded that for all practical purposes extradition would not have occurred. However, it was said that the factor of his returning voluntarily would not have "so much weight where, if I can put it as bluntly as this, there has been a fully contested trial." It was submitted that if he had pleaded guilty, that factor would have been entitled to be given great weight. What had happened, however, was that the complainant had been forced to re‑live her ordeal before a jury.
In my view some credit in the sentence should have been given to the applicant arising from his voluntary return to the jurisdiction.
The third ground of appeal is that the learned sentencing Judge erred in accepting that the illnesses and other personal problems of the complainant were aggravating factors relevant to sentence and that they were a direct result of the offences. The matters which are referred to in that ground are the complainant's health problems, a suicide attempt and bulimia at the time when the offences were being committed against her.
In his opening at the trial the learned prosecutor had said:
"The abuse by her father over the years did take its toll upon this woman. She sought various pain‑killing drugs from a doctor. She became bulimic during this period of the sexual abuse, that is, she would eat all her food then she would go into the bathroom and throw it all up again. On two occasions she overdosed on drugs that had been prescribed for her and she was admitted to hospital on those occasions. She even tried to commit suicide on one occasion by drowning herself in the family home's bath but her mother found her in time. Indeed her father inflicted so much emotional and physical pain upon her that on the occasions when he threatened to kill her, she would tell him to do it."
In his submissions on sentencing the learned prosecutor said:
"It is clear that this woman suffered from bulimia during the course of this sexual abuse. She overdosed on prescription drugs twice, such that it required hospitalisation, and all three female members of the family gave evidence about the time she attempted suicide by drowning when she was just 18 years of age, and that took place in the weeks after she confessed to her mother. It is clear that she regretted what she did. She became so depressed and that is what she says prompted her to make the suicide attempt."
At this appeal counsel for the applicant said that the Crown had led evidence on those matters and "I am not sure that, had it been challenged, it would have been allowed in, but that is the sort of thing that you would expect in the victim impact report, and if the Crown rely on that and relied on it at sentencing, which they did, then it ought to have been a matter that had to be proved to the standard of being beyond a reasonable doubt."
Counsel for the applicant said that in his evidence the applicant had said that the sexual activity was all consensual and that there was nothing traumatic about it; that he could not accept how his daughter came to suffer those things, and implicitly it was denied. It was submitted that although the jury had rejected the consensual aspects of the conduct, there should have been a psychiatrist, or someone with qualifications called, who could establish that the illnesses were the direct result of the conduct.
It had been submitted by the Crown prosecutor that the psychological and physical intimidation the applicant had brought to bear had aggravated the circumstances of the crimes. It was said for the applicant at this application, that the question was one of causation.
In sentencing the applicant the learned Judge said:
"The offences had a significant effect upon the complainant. The evidence is that she had considerable health problems, that she had attempted to commit suicide, that she suffered from bulimia, that she overdosed on drugs. Those other matters of course could have been been caused for some other reason, but the time connection between the commission of these offences and those attempts lead me to the conclusion that in all likelihood they were the result of the matters that you were doing to her. In any event, of course, they would not be matters of great significance. Some people would have reacted that way to the offences, some people might not have. It is the seriousness of the offences with which I particularly need to be concerned."
In R v Olbrich (1999) 199 CLR 270 at 281, Gleeson CJ, Gaudron, Hayne and Callinan JJ said:
"Nonetheless, it may be accepted that if the prosecution seeks to have the sentencing Judge take a matter into account in passing sentence it will be for the prosecution to bring that matter to the attention of the Judge and, if necessary, call evidence about it."
Their Honours went on to say:
"As to the standard of proof that should be applied, we would adopt what was said by the majority in R v Storey [1998] 1 VR 359 at 369 – that a sentencing Judge 'may not take facts into account in a way that is adverse to the interests of the accused unless those facts have been established beyond reasonable doubt. On the other hand, if there are circumstances which the Judge proposes to take into account in favour of the accused, it is enough if those circumstances are proved on the balance of probabilities.'"
In my view, the learned Judge in saying that "in all likelihood they (the adverse health effects) were as a result of the matters that you were doing to her", did not apply the correct standard of proof. However, his Honour went on to say, "In any event, of course, they would not be matters of great significance."
I have stated earlier in these reasons that in my view the individual sentences of 11 years were too long in any event. However there remains the question of totality.
Ground 4 of the application is that the learned sentencing Judge erred in adopting the incorrect standard of proof for the purposes of determining whether illnesses and general problems suffered by the complainant following the commission of the offences were directly related to the offences. I have dealt with that matter under ground 3. It raises the same issues.
Ground 5 is that the total effective sentence of 11 years was manifestly excessive in all the circumstances of the case and outside a broad discretionary range for the offences in question. That ground is connected to the first two grounds.
In my view, for the reasons stated above, grounds one and two have been established. Sufficient credit was not given by the learned Judge for the applicant's rehabilitation and his voluntary return to the country. Also in my opinion his Honour applied the incorrect standard of proof with
respect to the adverse effects on the complainant's health. This Court should therefore consider the sentences anew – Criminal Code, s 689(3).
Looking at the matter overall and having in mind the question of totality, I would reduce the three sentences of 11 years' imprisonment on counts 6, 7 and 11 to sentences of 8 years' imprisonment for each of those offences. I would not interfere with any of the other orders.
The result would be that leave would be granted, the appeal would be allowed and the three relevant sentences varied. The total effective sentence of the applicant would be reduced to one of 8 years' imprisonment. He would be eligible for parole.
TEMPLEMAN J: I agree with the reasons to be published by Wallwork J and with the orders which his Honour proposes.
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