SAL v The State of Western Australia
[2021] WASCA 192
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: SAL -v- THE STATE OF WESTERN AUSTRALIA [2021] WASCA 192
CORAM: MAZZA JA
MITCHELL JA
VAUGHAN JA
HEARD: 22 MARCH 2021
DELIVERED : 16 NOVEMBER 2021
PUBLISHED : 16 NOVEMBER 2021
FILE NO/S: CACR 73 of 2020
BETWEEN: SAL
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram: GOETZE DCJ
File Number : IND 673 of 2018, IND 469 of 2019, IND 625 of 2019
Catchwords:
Criminal law - Appeal against sentence - Appellant convicted on her pleas of guilty of 71 sexual offences against three children and sentenced to a total effective sentence of 28 years' imprisonment - Some of the offending was filmed - Whether the sentencing judge erred by failing to take into account the fact the appellant was herself a victim of childhood sexual abuse as a mitigating factor - Whether the discounts applied for the appellant's pleas of guilty were manifestly inadequate - Whether the total effective sentence infringed both limbs of the totality principle
Legislation:
Children and Community Services Act 2004 (WA), s 101(1)(a)
Criminal Code (WA), s 293, s 320, s 321
Sentencing Act 1995 (WA), s 9AA
Result:
Appeal dismissed
Category: B
Representation:
Counsel:
| Appellant | : | S B Watters & S A Auburn |
| Respondent | : | L M Fox SC |
Solicitors:
| Appellant | : | Robertson Hayles Lawyers |
| Respondent | : | Director of Public Prosecutions (WA) |
Case(s) referred to in decision(s):
Abraham v The State of Western Australia [2014] WASCA 151; (2014) 244 A Crim R 1
Beins v The State of Western Australia [No 2] [2014] WASCA 54
Bugmy v The Queen [2013] HCA 37; (2013) 249 CLR 571
Coulter v The State of Western Australia [2019] WASCA 215
Dungay v The Queen [2020] NSWCCA 209
Gulyas v The State of Western Australia [2007] WASCA 263; (2007) 178 A Crim R 539
Hoskins v The Queen [2021] NSWCCA 169
House v The King [1936] HCA 40; (1936) 55 CLR 499
Mather v The State of Western Australia [2017] WASCA 148
Mill v The Queen [1988] HCA 70; (1988) 166 CLR 59
Munda v The State of Western Australia [2013] HCA 38; (2013) 249 CLR 600
Nasrallah v The Queen [2021] NSWCCA 207
Peterson v The State of Western Australia [2019] WASCA 207
R H McL v The Queen [2000] HCA 46; (2000) 203 CLR 452
R v AWF [2000] VSCA 172; (2000) 2 VR 1
R v Dunne [2003] VSCA 150
R v Gavel [2014] NSWCCA 56; (2014) 239 A Crim R 469
R v Irwin [2019] NSWCCA 133
R v Kilic [2016] HCA 48; (2016) 259 CLR 256
R v LFJ [2009] VSCA 134
R v MJB [2014] NSWCCA 195
R v Van Gelder [2003] SASC 98; (2003) 142 A Crim R 1
RGT v The State of Western Australia [2017] WASCA 120
SCN v The State of Western Australia [2017] WASCA 138
The State of Western Australia v BKJ [2018] WASCA 136
REASONS OF THE COURT:
This is an appeal against sentence.
The appellant was convicted, upon her pleas of guilty, of a total of 71 sexual offences against three child complainants: EJF, OF and DMC. EJF and OF are the appellant's natural daughter and son. At all relevant times, they were under the age of 13 years. DMC is not related to the appellant. At the time of the offending against her, she was 13 or 14 years of age. The offences are contained in three indictments: 17 counts in IND 673 of 2018 (IND 673), 43 counts on IND 469 of 2019 (IND 469) and 11 counts on IND 625 of 2019 (IND 625). IND 673 concerned EJF, IND 469 concerned both EJF and OF, and IND 625 concerned DMC.
On 3 March 2020, the appellant (and her partner W) was sentenced by Goetze DCJ. She was sentenced to a total of 9 years' imprisonment on IND 673, 13 years' imprisonment on IND 469 and 6 years' imprisonment on IND 625, to be served cumulatively. Thus, the total effective sentence imposed upon the appellant for all her offending was 28 years' imprisonment. The appellant was made eligible for parole and her sentence was backdated to commence on 10 April 2018, to reflect the time the appellant had spent in custody prior to her sentencing.
The details of the individual sentences on each indictment are contained in the table set out below:
Charge Description Plea Max Sentence IND 673 of 2018 Count 1 On 28 December 2014 at Mullaloo, W, the appellant and Tracy Coulter indecently recorded EJF, a child under the age of 13 years (s 320(6) Criminal Code (WA) (Code)). Guilty 10 years' imprisonment 4 years 6 months' imprisonment Count 2 On the same date at the same place, W, the appellant and Tracy Coulter sexually penetrated EJF, a child under the age of 13 years, by penetrating her anus with the penis of W (s 320(2) Code). Guilty 20 years' imprisonment 9 years' imprisonment Count 3 On the same date at the same place, W, the appellant and Tracy Coulter indecently dealt with EJF, a child under the age of 13 years, by kissing her with an open mouth (s 320(4) Code). Guilty 10 years' imprisonment 2 years 6 months' imprisonment Count 4 On the same date at the same place, W, the appellant and Tracy Coulter sexually penetrated EJF, a child under the age of 13 years, by introducing the penis of Tracy Coulter into her mouth (s 320(2) Code). Guilty 20 years' imprisonment 9 years' imprisonment Count 5 On the same date and at the same place, W, the appellant and Tracy Coulter sexually penetrated EJF, a child under the age of 13 years, by penetrating her vagina with the tongue of the appellant (s 320(2) Code). Guilty 20 years' imprisonment 9 years' imprisonment Count 6 On the same date and at the same place, W, the appellant and Tracy Coulter sexually penetrated EJF, a child under the age of 13 years, by rubbing her clitoris with her fingers (s 320(2) Code). Guilty 20 years' imprisonment 9 years' imprisonment Count 7 On the same date and at the same place, W, the appellant and Tracy Coulter indecently dealt with EJF, a child under the age of 13 years, by the appellant performing fellatio on Tracy Coulter in the presence of EJF (s 320(4) Code). Guilty 10 years' imprisonment 4 years' imprisonment Count 8 On the same date and at the same place, W, the appellant and Tracy Coulter sexually penetrated EJF, a child under the age of 13 years, by introducing the penis of Tracy Coulter into her mouth (s 320(2) Code). Guilty 20 years' imprisonment 9 years' imprisonment Count 9 On the same date and at the same place, W, the appellant and Tracy Coulter sexually penetrated EJF, a child under the age of 13 years, penetrating her anus with the penis of W (s 320(2) Code). Guilty 20 years' imprisonment 9 years' imprisonment (head sentence)
(cumulative)Count 10 On the same date and at the same place, W, the appellant and Tracy Coulter indecently recorded EJF, a child under the age of 13 years (s 320(6) Code). Guilty 10 years' imprisonment 4 years 6 months' imprisonment Count 11 On the same date and at the same place, W, the appellant and Tracy Coulter sexually penetrated EJF, a child under the age of 13 years, by introducing the penis of Tracy Coulter into her mouth (s 320(2) Code). Guilty 20 years' imprisonment 9 years' imprisonment Count 12 On the same date and at the same place, W, the appellant and Tracy Coulter sexually penetrated EJF, a child under the age of 13 years, by penetrating her anus with the penis of W (s 320(2) Code). Guilty 20 years' imprisonment 9 years' imprisonment Count 13 On the same date and at the same place, W, the appellant and Tracy Coulter sexually penetrated EJF, a child under the age of 13 years, by rubbing her vagina with a vibrator (s 320(2) Code). Guilty 20 years' imprisonment 9 years' imprisonment Count 14 On the same date and at the same place, W, the appellant and Tracy Coulter sexually penetrated EJF, a child under the age of 13 years, by introducing the penis of Tracy Coulter into her mouth (s 320(2) Code). Guilty 20 years' imprisonment 9 years' imprisonment Count 15 On the same date and at the same place, W, the appellant and Tracy Coulter sexually penetrated EJF, a child under the age of 13 years, by introducing the penis of Tracy Coulter into her mouth (s 320(2) Code). Guilty 20 years' imprisonment 9 years' imprisonment Count 16 On the same date and at the same place, W, the appellant and Tracy Coulter indecently dealt with EJF, a child under the age of 13 years, by the appellant performing fellatio on Tracy Coulter in the presence of EJF (s 320(4) Code). Guilty 10 years' imprisonment 4 years 6 months' imprisonment Count 17 On the same date and at the same place, W, the appellant and Tracy Coulter sexually penetrated EJF, a child under the age of 13 years, by penetrating her anus with the penis of W (s 320(2) Code). Guilty 20 years' imprisonment 9 years' imprisonment Total sentence 9 years' imprisonment IND 469 of 2019 Count 1 On an unknown date between 30 November 2011 and 1 December 2012 at Mullaloo, W and the appellant indecently dealt with EJF, a child under the age of 13 years, by showing her a pornographic film (s 320(4) Code). Guilty 10 years' imprisonment 1 year imprisonment Count 2 On the same date and at the same place as in count 1, W and the appellant sexually penetrated EJF, a child under the age of 13 years, by introducing the penis of W into her mouth (s 320(2) Code). Guilty 20 years' imprisonment 6 years' imprisonment Count 3
On the same date and at the same place as in count 1, W and the appellant procured EJF, a child under the age of 13 years, to do an indecent act, by procuring her to use a vibrator on the genitals of the appellant (s 320(5) Code). Guilty 10 years' imprisonment 4 years' imprisonment Count 4
On another unknown date between 30 November 2011 and 1 December 2012 at Mullaloo, W and the appellant indecently dealt with EJF, a child under the age of 13 years, by showing her a pornographic film (s 320(4) Code). Guilty 10 years' imprisonment 1 year imprisonment Count 5
On the same date and at the same place as in count 4, W and the appellant sexually penetrated EJF, a child under the age of 13 years, by introducing the penis of W into her mouth (s 320(2) Code). Guilty 20 years' imprisonment 6 years' imprisonment Count 6
On the same date and at the same place as in count 4, W and the appellant indecently dealt with EJF, a child under the age of 13 years, by engaging in sexual activity in her presence (s 320(4) Code). Guilty 10 years' imprisonment 3 years' imprisonment Count 7
On the same date and at the same place as in count 4, W and the appellant procured EJF, a child under the age of 13 years, to do an indecent act, by procuring her to use a vibrator on the genitals of the appellant (s 320(5) Code). Guilty 10 years' imprisonment 4 years' imprisonment Count 8
On another unknown date between 30 November 2011 and 1 December 2013 at Mullaloo, W and the appellant indecently dealt with OF, a child under the age of 13 years, by showing him a pornographic film (s 320(4) Code). Guilty 10 years' imprisonment 1 year imprisonment Count 9
On the same date and at the same place as in count 8, W and the appellant indecently dealt with EJF, a child under the age of 13 years, by showing her a pornographic film (s 320(4) Code). Guilty 10 years' imprisonment 1 year imprisonment Count 10
On the same date and at the same place as in count 8, W and the appellant sexually penetrated OF, a child under the age of 13 years, by the appellant engaging in fellatio with him (s 320(2) Code). Guilty 20 years' imprisonment 9 years' imprisonment Count 11
On the same date and at the same place as in count 8, W and the appellant sexually penetrated OF, a child under the age of 13 years, by W engaging in fellatio with him (s 320(2) Code). Guilty 20 years' imprisonment 9 years' imprisonment Count 12
On the same date and at the same place as in count 8, W and the appellant encouraged OF, a child under the age of 13 years, to engage in sexual behaviour by encouraging him to engage in cunnilingus with the appellant (s 320(3) Code). Guilty 20 years' imprisonment 9 years' imprisonment (head sentence)
(cumulative)Count 13
On the same date and at the same place as in count 8, W and the appellant sexually penetrated OF, a child under the age of 13 years, by W introducing his penis into his mouth (s 320(2) Code). Guilty 20 years' imprisonment 9 years' imprisonment Count 14
On the same date and at the same place as in count 8, W and the appellant indecently dealt with EJF, a child under the age of 13 years, by engaging in sexual activity in her presence (s 320(4) Code). Guilty 10 years' imprisonment 4 years' imprisonment Count 15
On another unknown date between 30 November 2011 and 1 December 2014 at Mullaloo, W and the appellant indecently dealt with OF, a child under the age of 13 years, by showing him a pornographic film (s 320(4) Code). Guilty 10 years' imprisonment 1 year imprisonment Count 16
On the same date and at the same place as in count 15, W and the appellant indecently dealt with EJF, a child under the age of 13 years, by showing her a pornographic film (s 320(4) Code). Guilty 10 years' imprisonment 1 year imprisonment Count 17
On the same date and at the same place as in count 15, W and the appellant, with intent to commit an indictable offence, administered a stupefying drug to OF (s 293 Code). Guilty 20 years' imprisonment 3 years' imprisonment Count 18
On the same date and at the same place as in count 15, W and the appellant sexually penetrated OF, a child under the age of 13 years, by the appellant engaging in fellatio with him (s 320(2) Code). Guilty 20 years' imprisonment 9 years' imprisonment Count 19
On the same date and at the same place as in count 15, W and the appellant procured OF, a child under the age of 13 years, to do an indecent act, by procuring him to use a vibrator on the genitals of the appellant (s 320(5) Code). Guilty 10 years' imprisonment 3 years' imprisonment Count 20
On the same date and at the same place as in count 15, W and the appellant sexually penetrated OF, a child under the age of 13 years, by introducing the penis of W into his mouth (s 320(2) Code). Guilty 20 years' imprisonment 9 years' imprisonment Count 21
On the same date and at the same place as in count 15, W and the appellant indecently dealt with EJF, a child under the age of 13 years, by engaging in sexual activity in her presence (s 320(4) Code). Guilty 10 years' imprisonment 3 years' imprisonment Count 27
On another unknown date between 30 November 2012 and 1 December 2013 at Beckenham, the appellant, with intent to commit an indictable offence, administered a stupefying drug to EJF (s 293 Code). Guilty 20 years' imprisonment 3 years' imprisonment Count 28
On the same date and at the same place as in count 27, the appellant indecently dealt with EJF, a child under the age of 13 years, by showing her a pornographic film (s 320(4) Code). Guilty 10 years' imprisonment 1 year imprisonment Count 29
On the same date and at the same place as in count 27, the appellant sexually penetrated EJF, a child under the age of 13 years, by introducing the penis of Tracy Coulter into her mouth (s 320(2) Code). Guilty 20 years' imprisonment 9 years' imprisonment Count 30
On the same date and at the same place as in count 27, the appellant indecently dealt with EJF, a child under the age of 13 years, by using a vibrator on her genitals (s 320(4) Code). Guilty 10 years' imprisonment 3 years' imprisonment Count 31
On the same date and at the same place as in count 27, the appellant sexually penetrated EJF, a child under the age of 13 years, by introducing the penis of Tracy Coulter into her mouth (s 320(2) Code). Guilty 20 years' imprisonment 9 years' imprisonment Count 32
On the same date and at the same place as in count 27, the appellant indecently dealt with EJF, a child under the age of 13 years, by engaging in sexual activity in her presence (s 320(4) Code). Guilty 10 years' imprisonment 3 years' imprisonment Count 33
On the same date and at the same place as in count 27, the appellant indecently dealt with EJF, a child under the age of 13 years, by using a vibrator on her genitals (s 320(4) Code). Guilty 10 years' imprisonment 3 years' imprisonment Count 45
On another unknown date between 1 November 2013 and 1 January 2015 at Beckenham, W and the appellant, with intent to commit an indictable offence, administered a stupefying drug to EJF (s 293 Code). Guilty 20 years' imprisonment 3 years' imprisonment Count 46
On another unknown date between 1 November 2013 and 1 January 2015 at Beckenham, W, the appellant and [another man] encouraged EJF, a child under the age of 13 years, to engage in sexual behaviour, by encouraging her to sexually penetrate Tracy Coulter by penetrating his anus with her fist (s 320(3) Code). Guilty 20 years' imprisonment 9 years' imprisonment Count 47
On the same date and at the same place as in count 46, W, the appellant and [another man] encouraged EJF, a child under the age of 13 years, to engage in sexual behaviour, by encouraging her to sexually penetrate [another man] by penetrating his anus with her fist (s 320(3) Code). Guilty 20 years' imprisonment 9 years' imprisonment Count 48
On the same date and at the same place as in count 46, W, the appellant and [another man] procured EJF, a child under the age of 13 years, to engage in sexual behaviour, by encouraging her to sexually penetrate W by penetrating his anus with her fist (s 320(3) Code). Guilty 20 years' imprisonment 9 years' imprisonment Count 49
On the same date and at the same place as in count 46, W, the appellant and [another man] sexually penetrated EJF, a child under the age of 13 years, by introducing the penis of W into her mouth (s 320(2) Code). Guilty 20 years' imprisonment 9 years' imprisonment Count 50
On the same date and at the same place as in count 46, W, the appellant and [another man] sexually penetrated EJF, a child under the age of 13 years, by introducing the penis of Tracy Coulter into her mouth (s 320(2) Code). Guilty 20 years' imprisonment 9 years' imprisonment Count 51
On the same date and at the same place as in count 46, W, the appellant and [another man] sexually penetrated EJF, a child under the age of 13 years, by introducing the penis of [another man] into her mouth (s 320(2) Code). Guilty 20 years' imprisonment 9 years' imprisonment Count 52
On the same date and at the same place as in count 46, W, the appellant and [another man] procured EJF, a child under the age of 13 years, to do an indecent act, by procuring her to use a vibrator on the genitals of the appellant (s 320(5) Code). Guilty 10 years' imprisonment 3 years' imprisonment Count 53
On the same date and at the same place as in count 46, W, the appellant and [another man] indecently dealt with EJF, a child under the age of 13 years, by engaging in sexual activity in her presence (s 320(4) Code). Guilty 10 years' imprisonment 3 years' imprisonment Count 54
On another unknown date between 1 September 2014 and 1 February 2015 at Scarborough, W and the appellant indecently dealt with EJF, a child under the age of 13 years, by engaging in sexual activity in her presence (s 320(4) Code). Guilty 10 years' imprisonment 3 years' imprisonment Count 55
On another unknown date between 16 March 2015 and 12 June 2015 at Applecross, W and the appellant indecently dealt with EJF, a child under the age of 13 years, by playing a pornographic movie in her presence (s 320(4) Code). Guilty 10 years' imprisonment 1 year imprisonment Count 56
On the same date and at the same place as in count 55, W and the appellant indecently dealt with EJF, a child under the age of 13 years, by engaging in sexual activity in her presence (s 320(4) Code). Guilty 10 years' imprisonment 3 years' imprisonment Count 57
On the same date and at the same place as in count 55, W and the appellant sexually penetrated EJF, a child under the age of 13 years, by introducing the penis of W into her mouth (s 320(2) Code). Guilty 20 years' imprisonment 9 years' imprisonment Count 61
Between 2011 and 2015 in Western Australia, W and the appellant, having the care or control of EJF, a child, engaged in conduct knowing that the conduct may result in EJF suffering harm as a result of sexual abuse (s 101(1)(a) Children and Community Services Act 2004 (WA) (CCSA)). Guilty 10 years' imprisonment 4 years' imprisonment (cumulative) Count 62
Between 2011 and 2015 in Western Australia, W and the appellant, having the care or control of OF, a child, engaged in conduct knowing that the conduct may result in OF suffering harm as a result of sexual abuse (s 101(1)(a) CCSA). Guilty 10 years' imprisonment 4 years' imprisonment Total sentence 13 years' imprisonment IND 625 of 2019 Count 1
On a date unknown in 2011 at Mullaloo, W and the appellant, with intent to commit an indictable offence, administered a stupefying drug to DMC (s 293 Code). Guilty 20 years' imprisonment 3 years' imprisonment Count 2
On the same date and at the same place, W and the appellant sexually penetrated DMC, a child of or over the age of 13 years and under the age of 16 years, by penetrating her vagina with a hose (s 321(2) Code). Guilty 14 years' imprisonment 6 years' imprisonment Count 3
On the same date and at the same place, W and the appellant sexually penetrated DMC, a child of or over the age of 13 years and under the age of 16 years, by penetrating her anus with a hose (s 321(2) Code). Guilty 14 years' imprisonment 6 years' imprisonment Count 4
On the same date and at the same place, W and the appellant sexually penetrated DMC, a child of or over the age of 13 years and under the age of 16 years, by penetrating her anus with the penis of W (s 321(2) Code). Guilty 14 years' imprisonment 6 years' imprisonment Count 5
On the same date and at the same place, W and the appellant sexually penetrated DMC, a child of or over the age of 13 years and under the age of 16 years, by engaging in cunnilingus with DMC (s 321(2) Code). Guilty 14 years' imprisonment 6 years' imprisonment Count 6
On the same date and at the same place, W and the appellant encouraged DMC, a child of or over the age of 13 years and under the age of 16 years, to engage in sexual behaviour by encouraging her to penetrate the appellant's anus with her fist (s 321(3) Code). Guilty 14 years' imprisonment 6 years' imprisonment Count 8
On the same date and at the same place, W and the appellant encouraged DMC, a child of or over the age of 13 years and under the age of 16 years, to engage in sexual behaviour by encouraging her to penetrate W's anus with her fist (s 321(3) Code). Guilty 14 years' imprisonment 6 years' imprisonment Count 9
On the same date and at the same place, W and the appellant sexually penetrated DMC, a child of or over the age of 13 years and under the age of 16 years, by penetrating her vagina with the penis of W (s 321(2) Code). Guilty 14 years' imprisonment 6 years' imprisonment (head sentence)
(cumulative)Count 11
On the same date and at the same place, W and the appellant sexually penetrated DMC, a child of or over the age of 13 years and under the age of 16 years, by penetrating her anus with the finger of the appellant (s 321(2) Code). Guilty 14 years' imprisonment 5 years' imprisonment Count 12
On the same date and at the same place, W and the appellant sexually penetrated DMC, a child of or over the age of 13 years and under the age of 16 years, by penetrating her anus with the penis of W (s 321(2) Code). Guilty 14 years' imprisonment 6 years' imprisonment Count 13
On a date unknown in 2011 in Mullaloo, W and the appellant, with intent to commit an indictable offence, administered a stupefying drug to DMC (s 293 Code). Guilty 20 years' imprisonment 3 years' imprisonment Total sentence 6 years' imprisonment
W was sentenced to a total effective sentence of 26 years' imprisonment. He was sentenced in respect of offences in IND 469 (not all of which concerned him), IND 673 and another indictment that did not involve the appellant. He was charged with, and did not plead guilty to, IND 625. Mr Coulter was sentenced by Goetze DCJ, on 1 March 2019, to a total effective sentence of 21 years' imprisonment for IND 673 and another indictment that did not involve the appellant or W. On 10 December 2019, this court allowed Mr Coulter's appeal against sentence. He was resentenced by this court to a total effective sentence of 17 years' imprisonment.[1]
[1] Coulter v The State of Western Australia [2019] WASCA 215.
The appellant requires an extension of time to appeal. Her appeal notice was filed just over one month out of time. Having regard to the matters contained in the affidavit of the appellant's solicitor sworn 29 May 2020, we would grant the extension of time.
The appellant advances three grounds of appeal. Ground 1 alleges that the sentencing judge erred by failing to take into account as a mitigating factor that the appellant had herself, as a child, been the victim of significant sexual abuse. Ground 2 alleges, in effect, that the discount given by the sentencing judge for the appellant's pleas of guilty, pursuant to s 9AA of the Sentencing Act1995 (WA), was manifestly inadequate. Ground 3 as amended at the appeal hearing[2] alleges, in effect, that the total effective sentence of 28 years' imprisonment infringes both limbs of the totality principle.
[2] Appeal ts 2.
The question of leave to appeal in respect of these grounds was referred to the hearing of the appeal.[3]
[3] Order of Buss P, 11 August 2020; WAB 17.
For the reasons which follow, we would dismiss the appeal.
The facts of the offending
At the sentencing hearing, the prosecutor read to the sentencing judge an amended statement of material facts in respect of each indictment. The facts were not contested and the statements were incorporated by his Honour into his sentencing remarks.[4] What follows is derived mostly from his Honour's summary of the facts, as contained in his sentencing remarks. The appellant took no issue with his Honour's factual summary.[5]
[4] ts 446.
[5] Appeal ts 7.
The appellant and W began living together in 2011, when EJF was nearly 5 years of age and OF was 3 years of age. The two children referred to W as 'dad'.[6]
[6] ts 447.
The appellant and W lived together in a house with EJF and OF over a period of three years, between December 2011 and December 2014.
Tracy Coulter was a friend of both the appellant and W and was well‑known to the appellant's children.
The offending came to light in this way. On or about 20 January 2018, an SD memory card containing video footage of three adults, later identified as the appellant, W and Mr Coulter, was found by a woman cleaning out her short‑term rental in Nedlands after a tenant had left. She handed the SD memory card to police. The appellant, W and Mr Coulter were interviewed by police.[7] Each identified themselves in stills taken from the video footage. The footage showed the offending against EJF, the subject of IND 673. EJF, OF and DMC were subsequently interviewed and disclosed the offending the subject of IND 469 and IND 625. We will describe the facts of IND 469 first, followed by the facts of IND 673 and IND 625.
[7] The appellant was interviewed on 26 January 2018.
IND 469
Counts 1 - 3: EJF aged 5 to 6
These offences occurred on an occasion in the period between December 2011 and December 2012, when EJF went to the bedroom occupied by the appellant and W after having a nightmare. The appellant and W were watching a pornographic movie and were having sex. The appellant and W showered EJF, after which she watched the pornographic movie with them (count 1). The appellant removed EJF's clothing and said to her that she should 'suck dad's doodle'. EJF then performed an act of fellatio upon W (count 2). The appellant then gave EJF a vibrator and instructed her daughter to tickle her own vagina with it, which she did (count 3).[8]
Counts 4 - 7: EJF aged 5 to 6
[8] ts 447 - 448.
During the same period, December 2011 to December 2012, EJF woke up one night in the bedroom occupied by the appellant and W. The appellant and W asked EJF to take her clothes off, but she refused. The appellant and W then removed EJF's clothing, put her in the shower, and then had her watch a pornographic movie (count 4). The appellant then asked EJF to 'suck dad's cock'. EJF then performed an act of fellatio on W (count 5). The appellant then had EJF touch her vagina with a vibrator (count 7). The appellant and W then performed cunnilingus and fellatio upon each other in EJF's presence and encouraged the child to record that activity (count 6). The sexual activity stopped when OF, who was about 3 or 4 years old, came into the bedroom.[9]
Counts 8 - 14: EJF aged about 5 to 6 and OF aged about 4 to 5
[9] ts 448.
The incident which constituted counts 8 ‑ 14 occurred on an unknown date between November 2011 and December 2013, and was the first occasion in which the appellant's two children were abused together. The appellant, W, EJF and OF together watched a pornographic movie (counts 8 and 9). EJF was then told to record what was going on. The appellant performed fellatio on OF, followed by W (counts 10 and 11). OF was then encouraged to perform cunnilingus on the appellant, which he did (count 12). W then introduced his penis into OF's mouth (count 13).W performed an act of cunnilingus on the appellant in the presence of EJF (count 14).[10]
Counts 15 - 21: EJF aged 5 to 6 and OF aged 4 to 5
[10] ts 448 - 449.
Counts 15 - 21 involved the second occasion on which the appellant and W abused EJF and OF together. It occurred on an unknown date between November 2011 and December 2014, when EJF was 5 to 6 years old and OF was 4 to 5 years old. The appellant, W and OF had a shower. W smoked methylamphetamine and gave the pipe to OF to smoke (count 17). The two children were then shown a pornographic movie (counts 15 and 16). The appellant performed an act of fellatio on W and then on OF (count 18). The appellant then posed naked and had EJF take photographs of her and record the sexual activity that was going on. The appellant then procured OF to use a vibrator on her vagina (count 19). W then introduced his penis into OF's mouth (count 20). The sexual abuse of OF and the sexual activity engaged in by the appellant and W took place in the presence of EJF (count 21).[11]
Counts 27 - 33: EJF aged 5 to 6
[11] ts 449.
Counts 27 - 33 occurred in one incident on an unknown date between 30 November 2012 and 1 December 2013, and involved the appellant, Mr Coulter and EJF. It began with the appellant, Mr Coulter and EJF having a shower. The appellant and Mr Coulter smoked some methylamphetamine. The appellant and Mr Coulter administered the drug to EJF by having her smoke a pipe (count 27). They then watched a pornographic movie which EJF described as showing a mum, a dad and a kid (count 28). The appellant then performed an act of fellatio on Mr Coulter and then asked her daughter to do the same, which EJF did (count 29). Mr Coulter then used a vibrator, first on the appellant and then on EJF's vagina (count 30). Following this, the appellant once more engaged in fellatio with Mr Coulter and then EJF was again asked to suck Mr Coulter's penis, which she did (count 31). Mr Coulter again used the vibrator, first on the appellant and then on EJF's vagina (count 32). After this, the appellant and Mr Coulter engaged in sexual intercourse in front of EJF (count 33).[12]
Counts 45 - 53: EJF aged 7
[12] ts 449 - 450.
Counts 45 ‑ 53 were committed by the appellant, W, Mr Coulter and another man. They occurred on EJF's seventh birthday at the other man's house. W told EJF that there was a surprise for her birthday. The four adults and EJF had a shower. They all then went into a bedroom. There, the four adults and EJF smoked a stupefying substance from a pipe (count 45). They then all watched a pornographic movie. The four adults then engaged in sexual activity with each other in the presence of EJF (count 53). This included acts of fellatio, cunnilingus and the use of a vibrator. W then shoved EJF's fist into Mr Coulter's anus (count 46). EJF was then encouraged to, and did in fact, insert her fist into the anus of each of the third man and W (counts 47 and 48). W, the third man and Mr Coulter then separately introduced their penises into EJF's mouth (counts 49, 50 and 51). EJF was then procured to use the vibrator on the appellant's vagina (count 52).[13]
Count 54 - EJF aged 7 to 8
[13] ts 450 - 451.
Count 54 occurred on an unknown date between 1 September 2014 and 1 February 2015, when EJF was 7 or 8 years old. On this occasion, the appellant, W and a third adult, a woman, engaged in sexual intercourse in EJF's presence. EJF was told to film parts of the sexual activity.[14]
Counts 55 - 57: EJF aged 8
[14] ts 451.
Counts 55 - 57 occurred on an occasion between March 2015 and June 2015, when EJF was 8 years old. The appellant, W and another adult woman (different from the adult woman involved in count 54) all showered. W then had sexual intercourse with the adult woman and the appellant. They then watched a pornographic movie in EJF's presence (count 55). After this, W, the appellant and the adult woman engaged in various kinds of sexual activity in EJF's presence (count 56). W then introduced his penis into the appellant's mouth (count 57). EJF was then procured to use a vibrator on the vaginas of the appellant and the other woman.[15]
Counts 61 - 62: EJF aged 5 to 9 years and OF aged 3 to 7
[15] ts 451 - 452.
Counts 61 ‑ 62 occurred between 2011 and 2015. Both the appellant and W had care and control of EJF and OF. They both failed to protect the children from harm, knowing that the two children might suffer harm as a result of being sexually abused by others (counts 61 and 62).[16]
[16] ts 452.
It may be noted that not all counts on IND 469 have been referred to. Some involved W only and not the appellant, others were discontinued.
IND 673
All of the offending in IND 673 occurred on 28 December 2014, at Scarborough, and involved EJF, who had just turned 8 years old. The offences the subject of this indictment were committed by the appellant, together with W and Mr Coulter.
The appellant made two indecent recordings of the offences (counts 1 and 10). The two recordings show the sexual offences which we are about to detail. W continuously penetrated EJF's anus with his penis. This was captured on four occasions in the videos taken by the appellant (counts 2, 9, 12 and 17). At the same time, Mr Coulter sexually penetrated EJF on five occasions by introducing his penis into the child's mouth (counts 4, 8, 11, 14 and 15).[17]
[17] ts 453.
The appellant tongue‑kissed EJF (count 3) and masturbated Mr Coulter in EJF's presence. She sexually penetrated EJF's vagina with her tongue and by rubbing the child's clitoris with her fingers (counts 5 and 6). The appellant twice performed fellatio on Mr Coulter while positioned immediately above EJF's head (counts 7 and 16). The appellant also rubbed EJF's vagina with a vibrator for an extended period of time (count 13).[18]
[18] ts 453 - 454.
At various stages during the offending, the appellant said and did things which were clearly designed to secure the child's cooperation and normalise the behaviour. At points during the offending, the appellant spat on EJF's vagina, apparently for lubrication, asked her if what W was doing made her feel good; asked EJF if being touched with a vibrator felt nice; verbally encouraged the child when Mr Coulter introduced his penis into her mouth; and asked EJF, 'What do you like most?'.[19]
[19] ts 453, 454.
In his sentencing remarks, his Honour rejected claims that the appellant had been drugged by W and was, at the time of the offending, affected by methylamphetamine.[20] His Honour observed from the videos that the appellant and W were ready and willing participants. They were alert, coordinated and speaking normally.
[20] ts 454.
The SD memory card containing the recordings of the offences in IND 673, which was located in a short‑stay rental accommodation in Nedlands, had no known connection with the appellant, W or Mr Coulter.[21] His Honour commented that the appellant and her co‑accused could all be readily identified from the videos and that the appellant and W had no choice but to plead guilty to the offending.[22]
[21] ts 454.
[22] ts 454 - 455.
IND 625
IND 625 concerns DMC, who was born in July 1997. W met DMC as a very young child in about 2000. Until the age of about 9, DMC saw W frequently. Her contact with W ceased for some time, but resumed after she turned 13, when DMC became good friends with one of W's children.[23] DMC was aware that W had separated from his wife and children. She contacted W and went to the home he shared with the appellant, EJF and OF. DMC visited the appellant and W's home regularly and became close with the appellant. The appellant and W permitted DMC to drink alcohol at their house. When DMC's father found out about this, he told the appellant and W not to go near his daughter. Nevertheless, the appellant and W permitted DMC to continue visiting their house.
[23] ts 455.
DMC confided in the appellant about trouble she was experiencing. The appellant told her about her own troubled upbringing as a teenager, including disclosing to DMC that she had been sexually abused when she was young. The appellant told DMC that she could visit at any time, which she did.[24]
[24] ts 455 - 456.
On one occasion, sometime in 2011 when DMC was 13 or 14 years old, she was told by the appellant and W that they had a surprise for her. The surprise was methylamphetamine, which the appellant and W injected into DMC's vein (count 1).[25]
[25] ts 456.
The appellant and W took DMC to the appellant's 'workroom', which DMC knew to be the room in which the appellant engaged in sex work. The appellant and W helped DMC to undress. The sentencing judge found that the appellant, W and DMC then had a shower.[26] Defence counsel did not accept that this occurred, but the sentencing judge told counsel that it did not matter for sentencing purposes and the matter was not pursued further.
[26] ts 456.
In the presence of the appellant and W, DMC inserted a shower hose into her vagina (count 2). W then inserted the shower house into DMC's anus (count 3). It was accepted that the appellant was a party to these penetrations.
W then inserted his penis into DMC's anus, which caused her extreme pain. This act of penetration lasted two or three minutes and was accompanied by threats, until eventually W stopped (count 4).
The appellant, W and DMC then went into the appellant's workroom where the appellant encouraged DMC to dress in 'sexy clothes', which she did. All of them then watched pornography in the appellant's bedroom. W was naked. He injected himself and the appellant with a substance. DMC performed cunnilingus on the appellant (count 5). The appellant and W then encouraged DMC to insert her fist into the appellant's anus and then W's anus, which she did (counts 6 and 8). W then inserted his penis into DMC's vagina, adopting a number of different positions (count 9). The appellant then penetrated DMC's anus with her finger (count 11). W penetrated DMC's anus with his penis, inflicting pain upon her (count 12).
The sexual activity we have described continued over an extended period of time until the morning. After it concluded, DMC spent the day with the appellant and W. That night, an unknown man came to the house. DMC showered and put on clothing and heels. She went to the main bedroom where the man, the appellant and W were naked. W injected DMC with what she believed to be methylamphetamine (count 13). The man said that this substance was Fantasy. DMC has no memory of what next occurred, but she woke up the following day around midday, with a sore vagina, anus, mouth and arm. She spent the rest of the day at the house and left the following morning.[27]
[27] ts 456 - 457.
In speaking generally about all the offences committed by the appellant, the sentencing judge observed that, in some cases, she had been charged with an offence of sexual penetration when the actual penetration had been committed by another. His Honour explained that in such cases the appellant was 'jointly liable for that penetration, in that [she was] encouraging and aiding him to commit that penetration. So, as a matter of law, [the appellant is] … liable for those penetrations or other offences'.[28]
[28] ts 457.
The reports
The sentencing judge was provided with a psychological report dated 3 September 2018 by Jane Sampson, a clinical and forensic psychologist (the psychological report), and a pre‑sentence report dated 14 September 2018 (PSR). It will be necessary only to refer in detail to the psychological report, the relevant portions of which will be described when we deal with ground 1 below. However, it is relevant to note at the outset that the reports were written almost 18 months before the appellant was sentenced and only in respect of the offending the subject of IND 673. The authors of each report noted that the appellant denied responsibility for the offending the subject of IND 673, claiming that she was drugged by W. The reports provide much of the basis for his Honour's description of the appellant's personal circumstances which follows.
The appellant's personal circumstances
His Honour's description of the appellant's personal circumstances included:
(1)The appellant was born in December 1978 and was 41 years old when she was sentenced.
(2)The appellant had 'a dysfunctional and traumatic background'.[29] This included, but was not restricted to, being sexually abused as a child by two men who were close to her.
(3)The appellant left school when she was 14 years old, having reached year 9. At about this time she became a ward of the State. After leaving school, she worked as a shop assistant and in other unskilled occupations. Later, she commenced 'skimpy bar work and sex work'.[30] The appellant had worked intermittently as a sex worker and had been encouraged or pressured to do so by W.
(4)The appellant began using cannabis at the age of 10 years and alcohol at the age of 12 years. She commenced using amphetamines when she was 28 and continued using them until she was remanded in custody in April 2018. His Honour observed that the appellant had not been able to achieve abstinence from illicit drugs prior to her incarceration 'for any significant period of time'.[31] She had little insight as to her illicit drug use and, at the time she was interviewed by the report writers, no plan to change.
(5)The appellant has been in three long‑term relationships. The first of these began when the appellant was 14 or 15, when she formed a relationship with the son of her foster parents. He was convicted of sexual abuse against EJF. He was also convicted of unlawful wounding and doing grievous bodily harm to the appellant. His Honour described this relationship as 'dysfunctional', and acknowledged that 'there was physical and sexual violence'.[32]
(6)The appellant's second relationship lasted four years with a man described as 'an alcoholic who was financially exploitative of [the appellant]'. Her third relationship was with W. His Honour observed that W 'encouraged [the appellant] to work as a sex worker. He administered [her] drugs intravenously and [the appellant says] that he was sexually and physically abusive'.[33]
(7)The appellant had prior convictions for minor offences of breach of bail, common assault and driving offences. His Honour did not regard them as being 'of any interest to this offending'.[34]
(8)The appellant had satisfactory physical health, but has a history of self‑harm with suicidal thoughts and chronic symptoms of severe depression and anxiety, for which she is medicated.
(9)The appellant's children, EJF and OF, were taken into care by the Department of Child Protection in October 2015 because of 'drug abuse and domestic violence'.[35]
[29] ts 459.
[30] ts 458.
[31] ts 458.
[32] ts 459.
[33] ts 459.
[34] ts 458.
[35] ts 458.
Victim impact statements
The sentencing judge received two victim impact statements from EJF, dated 18 December 2018 and 30 October 2019, respectively. His Honour noted that OF and DMC were 'not yet ready' to give victim impact statements.[36]
[36] ts 465.
His Honour noted how EFJ had described the adverse effect the offending has had on her relationships, her behaviour and her school performance. She experiences nightmares and feels unsafe and unprotected. She perceives (without any justification) what happened to her as her fault.
EJF expressed worry about giving evidence and that she had to take time off for court‑related appointments which, in turn, caused rumours to spread at school. In the course of preparation for giving evidence, EJF had to view the videos of the offending, which caused her to feel ashamed of herself and disgusted. EJF said that she felt that her life was not worth living.
The sentencing remarks
His Honour noted that the appellant and W each claimed that a contributing factor to their offending was the use of methylamphetamine. His Honour found that, while the use of methylamphetamine may explain the offending, 'it by no means excuses it'.[37]
[37] ts 457.
Relevantly to ground 1, after describing the appellant's personal circumstances, his Honour then considered the submission put on behalf of the appellant by her counsel that the sexual abuse she had suffered in the past was mitigating. His Honour found that it was not a mitigating factor because:[38]
As the victim of sex offending you knew the consequences and yet you still engaged in your offending against your two biological children and a family friend.
You also knew that EJF had been previously offended against. And you would think that you would have been more alert to protect your children after that. But you engaged in the offending that I've outlined, and you've done so for your own sexual gratification.
In the absence of any expert evidence, I can't accept that your childhood sexual abuse is mitigatory.
[38] ts 459.
After dealing with the psychological report, his Honour observed that up until August 2018 (by which time, the appellant had been charged with the offences that are largely reflected in the three indictments), the appellant denied any involvement in the commission of the offences. Subsequently, these denials were not maintained.[39]
[39] ts 460.
The sentencing judge addressed the impact of the offending upon the victims. He said that the appellant and W had stolen the victims' innocence.[40]
[40] ts 466.
His Honour emphasised the need to impose penalties that would punish the appellant for what she had done and deter her and others from offending in this way, with the object of protecting vulnerable children.[41]
[41] ts 466.
The sentencing judge identified the following aggravating factors:
(1)The appellant was the biological mother of EJF and OF.[42]
[42] ts 467.
(2)The offending was an abuse of her maternal relationship with her children. Her duty was to protect and nurture them.
(3)In order to commit the offences, the appellant administered a stupefying drug, methylamphetamine.
(4)The offences constituted 'enormous breaches' of the mother/child relationship which existed between the appellant and her children.
(5)The appellant delivered EJF and OF into the hands of other adult offenders.[43]
[43] ts 468.
(6)There was a complete and overwhelming physical and psychological imbalance between the appellant and the child victims.
(7)In some instances, the offending occurred in circumstances where EJF and OF were present together.
(8)The offences were 'quite depraved and perverted'.
(9)Some of the offences were carried out by the appellant and W, jointly, and with other adults.
(10)EJF and OF were shown pornographic movies of sexual activity involving children and adults as if it they were family films in order to normalise the offending.[44]
[44] ts 469.
(11)The appellant groomed EJF by performing fellatio and then asking or directing EJF to do the same.
(12)The appellant also encouraged EJF to perform various sex acts by offering her snacks.
(13)The offending was repeated in respect of EJF, OF and DMC.
(14)Some of the offending involved the use of a vibrator.
(15)EJF was 'wholly corrupted' by the offending to the extent it became normalised.
(16)In IND 673, EJF was sexually penetrated, both orally and anally, without the use of a condom to protect her against any possible infection with a sexually transmitted disease. His Honour noted that, in this respect, it was relevant that the appellant admitted being involved in the 'swinging scene'.
(17)The penetrative offending in respect of EJF and OF gave rise to a risk of physical harm.[45]
(18)The offending the subject of IND 673 had been filmed and somehow disseminated. While it was not known how the footage had been disseminated, EJF would have to live with the fear that there may be other copies of it which may, in the future, be shown.[46]
(19)Some of the sexual activity in IND 469 was filmed, but the footage has not been recovered by the police.
(20)The adverse psychological impact that the offending had on the victims. His Honour observed that EJF and OF do not fully appreciate what has happened to them and that the ramifications of the abuse will become more apparent as they get older.[47]
[45] ts 469 - 470, 478.
[46] ts 470.
[47] ts 478.
His Honour said that the only real mitigating factor was the appellant's pleas of guilty.[48] Because the pleas of guilty were entered or indicated at different stages in the proceedings, and having regard to the strength of the State's case in each indictment, the reductions the sentencing judge gave pursuant to s 9AA of the Sentencing Act varied. In respect of the offences in IND 673, the reduction was 15%.[49] For the offences in IND 469, the reduction was 10%.[50] In respect of IND 625, the reduction was 5%.[51] His Honour noted in relation to IND 625 that the pleas were made less than two months before the scheduled trial and only after DMC's evidence, including her cross‑examination, had been pre‑recorded.[52]
[48] ts 470.
[49] ts 472.
[50] ts 473.
[51] ts 474.
[52] ts 474.
His Honour acknowledged receiving two letters from the appellant expressing her remorse, dated 1 March 2019 and 5 December 2019 respectively.[53] His Honour said that any remorse she expressed was, in effect, the appellant feeling sorry for herself.[54]
[53] ts 474 - 475.
[54] ts 475.
Her Honour noted that, while in custody, the appellant had become a self‑care prisoner and had taken on the roles of a church assistant and acolyte.[55] She had also completed a number of self‑improvement courses, for which she had been awarded a number of certificates.
[55] ts 475 - 476.
His Honour acknowledged that the appellant had provided the State with a witness statement relevant to W (and possibly another). However, parts of it were inconsistent with her pleas of guilty and her acceptance of the material facts as alleged by the State. The State indicated that it was not going to call the appellant as a witness. His Honour found that there was little or no mitigation in the provision of the witness statement.[56]
[56] ts 476.
His Honour acknowledged that the psychological report stated that the appellant has 'psychological issues', including anxiety and depression.[57]
[57] ts 476.
His Honour said that the conduct engaged in by the appellant and W 'was both perverted and born out of a warped sense of desire for carnal lust without any regard whatever to these complainants'.[58]
[58] ts 479 - 480.
His Honour described the circumstances of the offending as being 'truly unique'. He said that they are almost the worst imaginable and were in a class of their own. He described the circumstances of the offending as 'shocking' and 'one of the most serious examples of sex offending within a family to have come before a court in this State'.[59]
[59] ts 481.
His Honour had regard to the need for parity between the appellant, W and Mr Coulter. His Honour differentiated between Mr Coulter, on the one hand, and the appellant and W, on the other, noting that the former did not have parental responsibility of the victims and that the appellant (and W) committed more offences over 'a much longer period of time'.[60] His Honour also observed that the offending engaged in by the appellant and W involved other adults who were not always involved with the offending committed by Mr Coulter.[61]
[60] ts 482.
[61] ts 482.
His Honour had regard to the totality principle and referred to the well‑known passage in Mill v The Queen,[62] quoted with approval in R H McL v The Queen,[63] which permits the totality principle to be applied by making sentences wholly or partially concurrent, or by lowering the individual sentences below what would otherwise be appropriate, in order to reflect the fact that a number of sentences have been imposed by a single court at the same time. His Honour said:[64]
I propose to order lower sentences on an individual basis than might otherwise be appropriate in order to reflect what the State says about a number of your offences as being of a kind that might attract something towards the higher end of the range, or close to the maximum penalty.
[62] Mill v The Queen [1988] HCA 70; (1988) 166 CLR 59, 63.
[63] R H McL v The Queen [2000] HCA 46; (2000) 203 CLR 452 [16].
[64] ts 483.
His Honour acknowledged that he was required to apply both limbs of the totality principle.
The offences committed by W were, in some respects, different to those committed by the appellant. He was sentenced to a total effective sentence of 26 years' imprisonment, with eligibility for parole.[65] As we have already mentioned, the appellant was sentenced to a total effective sentence of 28 years' imprisonment with eligibility for parole, commencing on 10 April 2018.
[65] ts 484 - 486.
Ground 1
Ground 1 alleges:[66]
The learned sentencing judge erred by failing to take into account as a mitigating factor that the appellant had herself as a child, been the victim of significant sexual abuse.
Background
[66] WAB 22.
Ground 1 is to be decided against the following background.
There was evidence before the sentencing judge, which he accepted, that the appellant had been the victim of sexual abuse as a child. This finding was made having regard to the appellant's overall dysfunctional and traumatic background. In the written and oral sentencing submissions, defence counsel submitted that the appellant's childhood victimisation was mitigatory. In his written sentencing submissions, defence counsel stated:[67]
It is submitted that her own victimisation and early sexualisation is therefore one of the factors that has contributed to [the appellant] being so damaged in terms of her personality and parenting ability as to be capable of being involved in this offending.
[67] Defence sentencing submissions [28]; WAB 212.
However, defence counsel accepted that the appellant's victimisation had limited mitigatory weight and was, as he acknowledged in his oral submissions, a 'double‑edged sword',[68] because the appellant appreciated the impact that this type of offending could have upon the victim. In the written submissions made on behalf of the appellant, defence counsel said:[69]
This factor is accepted to be limited in terms of its mitigatory value in that [the appellant] dishonestly presents her own victimisation in her first EROI as support for her denials of this offending. In addition, she's obviously aware of the harm that this sort of offending causes and yet offended in the same way herself.
The mitigatory value of this factor is also undermined by the fact that [the appellant] was aware that the victim's biological father had sexually offended against [EJF] when she was very young.
[68] ts 438.
[69] Defence sentencing submissions [29], [30].
The reference in the above quotation to the appellant's first EROI concerns the appellant's interview with police on 26 January 2018, about the allegations that formed the charges in IND 673. In the interview, the appellant vehemently denied being involved in any sexual activity in respect of EJF, at one point invoking her own childhood sexual abuse as a reason why she was not involved:[70]
DETECTIVE CASEY: Have you ever been involved in any sex acts [in relation to EJF]?
APPELLANT: No, fuck no. I'd never do that. I know what it's like. I've been there. I've had it done to me. Why would I do that to my kid? Are you for real? (emphasis added)
[70] EROI, 26 January 2018, ts 9.
Defence counsel did not submit that the appellant's sexual victimisation as a child was causative of her offending.
In her sentencing submissions, the Director of Public Prosecutions referred to the psychological report. She acknowledged that, insofar as it recounted the appellant's background, the sentencing judge could rely upon it. However, the Director submitted that it did not 'produce much of an explanation'.[71]
The appellant's submissions in support of ground 1
[71] ts 421.
In support of ground 1, counsel for the appellant described his submissions as having two limbs.[72] The first limb was that his Honour erred by not finding that the appellant's childhood sexual abuse was causative of the offending. The second limb was that his Honour should have found that the appellant's sexual victimisation as a child came 'within the parameters of social deprivation as referred to by the High Court in Bugmy v The Queen,[73] referred to as the Bugmy principle'.[74]
[72] Appeal ts 3.
[73] Bugmy v The Queen [2013] HCA 37; (2013) 249 CLR 571.
[74] Appeal ts 4.
The appellant's submissions in respect of the first limb changed as the oral argument proceeded. In his written submissions, the appellant conceded that there was no evidence before the sentencing judge to support the contention that the appellant's childhood sexual abuse was causative of her offending.[75] In support of the proposition that his Honour erred by failing to find that the appellant's sexual victimisation as a child was causative of the offending, the appellant put before this court, and sought to rely upon, an article written by Professor Mirko Bagaric and Associate Professor Gabrielle Wolf.[76]
[75] Appellant's reply to respondent's answer, filed 11 March 2021, pars 1, 2.
[76] Bagaric M and Wolf G, 'An argument for recognising childhood sexual abuse and physical abuse as a mitigating factor in sentencing' (2020) 49(2) Australian Bar Review 1.
In oral submissions, counsel for the appellant submitted that, based on some of the studies referred to in the article, his Honour should have inferred that the appellant's sexual victimisation as a child was causative of the offending.[77] After accepting the obvious proposition that the studies were not evidence, counsel then modified his submissions, contending that, on the material before the sentencing judge, his Honour should have inferred that the appellant's childhood sexual abuse was causative of her offending.[78]
[77] Appeal ts 8.
[78] Appeal ts 9.
Ultimately, counsel for the appellant said that he did not press the first limb of his submission, although he did not abandon it.[79]
[79] Appeal ts 20.
Counsel for the appellant then submitted that the second limb of his submissions in support of ground 1 constituted 'a stronger argument'.[80] Counsel for the appellant submitted that the appellant's childhood sexual abuse, as well as other adverse events in her childhood, should have led his Honour to conclude that the appellant's dysfunctional background was such as to bring her within the Bugmy principles, and that this should have been recognised as a mitigating factor.
Ground 1 - legal principles
[80] Appeal ts 27.
The appellant's dysfunctional upbringing and, in particular, her experience of childhood sexual abuse, is plainly a relevant sentencing consideration, being part of her personal background. The adverse psychological effects of childhood sexual abuse upon victims is all too well known and may be assumed.[81]
[81] R v Gavel [2014] NSWCCA 56; (2014) 239 A Crim R 469 [110]; R v MJB [2014] NSWCCA 195 [49].
In volume 3 of its final report entitled, 'Impacts', the Royal Commission into Institutional Responses to Child Sexual Abuse set out how such abuse can affect a victim's life:[82]
[82] Royal Commission into Institutional Responses to Child Sexual Abuse, final report (2017), volume 3, pages 10, 11.
Child sexual abuse can affect many areas of a person's life, including their:
• mental health
• interpersonal relationships
• physical health
• sexual identity, gender identity and sexual behaviour
• connection to culture
• spirituality and religious involvement
• interactions with society
• education, employment and economic security.
For some victims, child sexual abuse results in them taking their own lives.
The impacts of child sexual abuse most commonly described in research and in our private sessions and public hearings were mental health impacts. Of the survivors who provided information in private sessions about the impacts of being sexually abused, 94.9 per cent told us about mental health impacts. These impacts included depression, anxiety and post-traumatic stress disorder (PTSD); other symptoms of mental distress such as nightmares and sleeping difficulties; and emotional issues such as feelings of shame, guilt and low self-esteem. Notably, mental health issues were often described as occurring simultaneously, rather than as isolated problems or disorders.
After mental health, relationship difficulties were the impacts most frequently raised by survivors in private sessions, including difficulties with trust and intimacy, lack of confidence with parenting, and relationship problems. Education and economic impacts were also frequently raised.
For many people, these diverse impacts are interconnected in complex ways, making it difficult to isolate the specific impacts of child sexual abuse. These interconnected impacts can be experienced at the same time or consecutively, as a cascade of effects over a lifetime. For instance, we heard from many survivors that they developed addictions after using alcohol or other drugs to manage the psychological trauma of abuse, which in turn affected their physical and mental health, sometimes leading to criminal behaviour and relationship difficulties.
Part of the explanation for the profound and broad-ranging impacts of child sexual abuse lies in the detrimental impacts that trauma can have on the biological, social and psychological development of a child. Child sexual abuse can result in profound trauma, affecting the chemistry, structure and function of the developing brain and potentially interrupting normal psychosocial development at every critical stage of a child's formative years.
Whether an offender's childhood sexual abuse is a mitigating factor and, if it is, the weight to be given to it, depends upon a consideration of all of the particular facts and circumstances of the individual case. It does not automatically follow that in every set of circumstances an offender's childhood sexual abuse will lead to a reduction in their sentence.
In order to be relevant to sentencing, an offender's childhood sexual abuse does not have to be causative of the offending. However, where a causal link is established, this will generally be a mitigating factor because it will reduce an offender's moral culpability.[83]
[83] See R v AWF [2000] VSCA 172; (2000) 2 VR 1 (Ormiston JA [3] - [7]) and R v Dunne [2003] VSCA 150 [31].
However, it remains the case that an offender's moral culpability must be balanced (as with all mitigating factors) against the seriousness of the offending.[84]
[84] Munda v The State of Western Australia [2013] HCA 38; (2013) 249 CLR 600 [57].
Some of the cases concerning offenders who have committed child sexual offences and were themselves sexually abused as children, have referred to its 'two‑edged' nature in the sentencing process.
In R v Dunne, Batt JA (Vincent JA & Cummins AJA agreeing) said:[85]
As Vincent, JA pointed out during argument, if in truth the appellant himself was sexually abused as a child, he could not say (or it could not be said of him, as Professor Ogloff did) that he did not have the appreciation at the time of offending of how much harm he was causing the victim. Although his Honour accepted Professor Ogloff’s evidence on this point, he qualified it substantially by pointing out that the appellant must as a teacher have had at least a reasonable idea of the damage that such behaviour can cause. It may be that his Honour should not have accepted this piece of evidence. So, in this case sexual abuse in childhood may be a two-edged sword.
[85] Dunne [33].
Comments to similar effect were made by Maxwell P and Kellam JA in R v LFJ.[86]
[86] R v LFJ [2009] VSCA 134 [27].
In R v Van Gelder,[87] Perry J (Nyland & Bleby JJ agreeing) said:
[I]f an offender was abused as a child, this should serve to bring home to the offender the terrible consequences this can have for the victim. That consideration might reasonably be taken as an aggravating, rather than a mitigating, circumstance.
[87] R v Van Gelder [2003] SASC 98; (2003) 142 A Crim R 1 [33].
We now turn to the High Court's decision in Bugmy v The Queen.
In Bugmy, the appellant, a 29‑year‑old Aboriginal man, was convicted on his pleas of guilty of three offences, including one of causing grievous bodily harm. The appellant, who was being held on remand in a correctional centre in New South Wales, threw a ball from a pool table at a correctional officer, striking him in the left eye, causing him to lose the sight in that eye.
The plurality (French CJ, Hayne, Crennan, Kiefel, Bell & Keane JJ) held that social disadvantage may reduce an offender's moral culpability. The plurality stated:[88]
The experience of growing up in an environment surrounded by alcohol abuse and violence may leave its mark on a person throughout life. Among other things, a background of that kind may compromise the person's capacity to mature and to learn from experience. It is a feature of the person's make-up and remains relevant to the determination of the appropriate sentence, notwithstanding that the person has a long history of offending.
Because the effects of profound childhood deprivation do not diminish with the passage of time and repeated offending, it is right to speak of giving 'full weight' to an offender's deprived background in every sentencing decision. However, this is not to suggest, as the appellant's submissions were apt to do, that an offender's deprived background has the same (mitigatory) relevance for all of the purposes of punishment. Giving weight to the conflicting purposes of punishment is what makes the exercise of the discretion so difficult. An offender's childhood exposure to extreme violence and alcohol abuse may explain the offender's recourse to violence when frustrated such that the offender's moral culpability for the inability to control that impulse may be substantially reduced. However, the inability to control the violent response to frustration may increase the importance of protecting the community from the offender.
[88] Bugmy [43] - [44].
The principles which derive from the plurality's statement, referred to as 'the Bugmy principles', are:[89]
(a)The effects of an offender's profound childhood deprivation do not diminish with the passage of time or repeated offending.
(b)The effects of an offender's profound childhood deprivation are to be given 'full weight' in every sentencing decision relating to the offender.
(c)However, the effects of an offender's profound childhood deprivation may point in different directions in relation to relevant sentencing factors; for example, those effects may diminish the offender's moral culpability for the offending, but may also increase the importance of protecting the community from the offender's criminal behaviour.
(d)Those conflicting purposes of punishment, in a sentencing context, must be weighed in the balance.
[89] Peterson v The State of Western Australia [2019] WASCA 207 [54].
Where the Bugmy principles are engaged, their application is not discretionary,[90] nor is it necessary to establish a causal link between the offender's social disadvantage and the offending.[91] However, as already stated, where a causal link is established, there will usually be a reduction in an offender's moral culpability.
[90] R v Irwin [2019] NSWCCA 133 [3].
[91] Dungay v The Queen [2020] NSWCCA 209 [153].
The plurality's reasons in Bugmy speak of 'profound childhood deprivation'. We observe that the significance of the word 'profound' has recently been discussed in the New South Wales Court of Criminal Appeal in Hoskins v The Queen.[92] See also Hamill J in Nasrallah v The Queen.[93] It is unnecessary, in the present case, to engage in this discussion.
[92] Hoskins v The Queen [2021] NSWCCA 169 [57].
[93] Nasrallah v The Queen [2021] NSWCCA 207 [86].
While Bugmy itself was a case involving an Aboriginal offender who grew up in an environment surrounded by alcohol abuse and violence, the Bugmy principles are not restricted to such circumstances. The principles are broad enough to apply to an offender whose childhood deprivation is affected by, or includes, childhood sexual abuse.
Ground 1 - disposition of the first limb of the appellant's submissions
The first limb of the appellant's submissions in support of ground 1 is without merit.
There was no evidence before the sentencing judge which would have enabled him to conclude that the appellant's childhood sexual abuse was causative of the offending. Indeed, as we have already noted, defence counsel did not submit that such a link existed. While childhood sexual abuse may be assumed to cause psychological harm, there is no basis to assume without evidence that it causes a victim to become a perpetrator.
The psychological report forms no basis upon which to find a causal connection between the appellant's childhood sexual abuse and the offending.
As mentioned earlier, the psychological report was written almost 18 months before the appellant was sentenced and only concerned the offending the subject of IND 673. At the time the report was written, the appellant had not admitted any of her alleged offending, that is, she had not admitted the offending in IND 673 and the other two indictments.
In the psychological report, Ms Sampson said it was 'difficult to analyse [the appellant's] involvement in the offending [the subject of IND 673] due to her denial of responsibility and claims that she had blacked out due to substances administered by her partner'.[94] Ms Sampson wrote that she was unable to explore whether the appellant was motivated by any deviant sexual arousal because of the appellant's claimed lack of recollection of the offending.[95] It does not appear Ms Sampson viewed the recordings which gave rise to the offending in IND 673.
[94] Ms Sampson's report, par 16.
[95] Ms Sampson's report, par 17.
Ms Sampson observed that 'there is very little information available in the literature about the characteristics of female sex offenders' and that 'it is advisable not to apply male sex offender models to the female population'.[96] Ms Sampson identified a number of typologies. However, it was difficult for her to determine which, if any, of the stated typologies, best fitted the appellant.[97] Ms Sampson said that the appellant appeared to be best categorised in the male‑coerced/male‑accompanied group. Ms Sampson described this group in these terms:[98]
In relation to this group, the male-coerced are compelled or forced into sexual offending, generally against their daughters. The coercion usually involve threats, punishment or physical abuse. [The appellant] did not take responsibility for this offending and her claimed lack of consciousness prevented exploration of this, although the relationship with her co‑offender was apparently violent and controlling. In the male‑accompanied category, offenders participate more actively in the abuse and may be motivated by anger or sexual gratification. This cannot be ruled out in this case. There is reported to be a subcategory of this group, 'the psychologically disturbed', who have exaggerated self‑esteem and dependency issues and this also appears relevant to [the appellant]. Females with strong dependency needs may abuse their children to maintain the relationship with their male partner, and they may also want to establish a personal sense of power and control.
[96] Ms Sampson's report, par 17.
[97] Ms Sampson's report, par 18.
[98] Ms Sampson's report, par 18.
Ms Sampson's statement that the appellant 'appears to be best categorised in the male‑coerced/male‑accompanied group' is plainly not a concluded statement of opinion as to the basis of the appellant's offending. Even if it could be construed in that way, its factual basis was, having regard to his Honour's findings as to the appellant's participation in IND 673, not established. In particular, his Honour did not find that the appellant offended because she was threatened, compelled or forced to do so by W.
In the article by Professor Bagaric and Associate Professor Wolf referred to in [70] above, reference is made to some research regarding the connection between childhood sexual and physical abuse and criminal offending generally. In doing so, the learned authors refer to studies which specifically concern female offenders. Of course, the literature and the learned authors' summary of the various studies referred to in the article are not evidence. Further, although Professor Bagaric and Associate Professor Wolf note studies to the effect that women who have experienced childhood sexual abuse are at risk of committing particular types of crime, there is nothing in the studies referred to that suggests that women who are the victims of childhood sexual abuse are more likely to themselves commit child sexual offences. Indeed, one of the studies referred to[99] in the article found that women who were the victims of childhood sexual abuse had an increased risk of committing property, drug and order (for instance, disorderly conduct) crimes later in life, but not of committing violent or sexual offences.
[99] Widom CS, Child abuse, neglect, and violent criminal behaviour (1989) 27(2) Criminology 251, 265-6.
For these reasons, his Honour did not err by failing to find a causal link between the appellant's childhood sexual abuse and her offending.
Ground 1 - disposition of the second limb of the appellant's submissions
His Honour found that the appellant had a dysfunctional and traumatic background, including that she had been sexually abused as a child. In our opinion, the appellant's childhood circumstances are of a kind as contemplated in Bugmy. But it is insufficient to make out ground 1 to merely show that the appellant's deprived background gave rise to the application of the Bugmy principles. The appellant must also demonstrate that what the sentencing judge did contravened them.
His Honour did not expressly refer to the Bugmy principles. He was not asked to invoke them. However, his approach to the appellant's childhood deprivation, including the appellant's sexual abuse, was consistent with the principles referred to in [74] to [82] above and consistent with the Bugmy principles. There is no reason to believe that the issue would have been resolved differently had his Honour been asked to invoke those principles and done so expressly.
The sentencing judge said nothing to indicate that he thought that the appellant's childhood deprivation diminished with the passage of time or repeated offending. He acknowledged the lifelong harm caused by childhood sexual abuse. Nor is there any indication that he did not give the appellant's childhood deprivation 'full weight'. Although it may be accepted that the appellant's childhood deprivation and, in particular, the sexual abuse she suffered, has had an adverse psychological effect upon her and, perhaps, as the appellant's counsel at first instance submitted, damaged her personality and her ability to properly parent her children, it did not diminish her ability to know that to perpetrate childhood sexual abuse upon the victims in this case was morally wrong, and thus did not diminish her moral culpability for the offending.
The appellant's appreciation that what she did was morally wrong is illustrated by her answers in the EROI referred to in [66] above and in the statements she made to DMC, where she reprehensibly used her own childhood experiences of sexual abuse to gain the trust of DMC.
In any event, any diminution in the appellant's moral culpability is well and truly outweighed by the prodigious, deliberate, planned and systematic offending she engaged in.
We acknowledge that his Honour found that there was no expert evidence which established a causal connection between the appellant's childhood sexual abuse and the offending. We do not understand his Honour to be, in effect, stating that the lack of a causal link precluded him giving mitigating weight to the appellant's childhood sexual abuse. In its context, we understand his Honour to be saying no more than that expert evidence in the form of the psychological report did not establish such a link. So understood his Honour's observation was correct.
For these reasons, the second limb of the appellant's submissions in support of ground 1 fails.
Ground 1 has not been made out.
Ground 2
Ground 2 is formulated in these terms:[100]
The learned sentencing judge failed to adequately allow for the pleas of guilty to the various offences for which the appellant was sentenced.
[100] WAB 22.
The background leading to the pleas of guilty is as follows.
In respect of IND 673, the appellant was originally charged in the Magistrates Court with 12 offences in respect of EJF. On 20 July 2018, those charges were substituted with the 17 offences set out in IND 673. On 10 August 2018, the appellant entered pleas of guilty to all 17 offences. There was a substantial delay in the sentencing of the appellant for these offences. The appellant (and W) sought to establish, in mitigation, that the offending was isolated. The State disputed this. In due course, the appellant was charged with the offences the subject of IND 469 and IND 625. By the time the appellant was sentenced in respect of all three indictments, it was clear that the offending in IND 673 was not isolated and, indeed, the submission was not maintained.
In the sentencing process on IND 673, the State contended that the appellant's pleas of guilty had not been entered at the first reasonable opportunity, but they were entered at an early stage.[101] In his plea in mitigation, senior counsel for the appellant submitted to the sentencing judge that the pleas of guilty on IND 673 had been entered 'comparatively early'.[102]
[101] State outline of sentencing submissions, 4 January 2019, par 15; WAB 177.
[102] ts 433.
In his sentencing remarks, his Honour said:[103]
As a matter of fact, [the appellant] didn't plead guilty at the earliest opportunity, although [the appellant] did so at an early or the earliest reasonable opportunity.
[103] ts 472.
His Honour went on:[104]
But indictment 673 was all filmed. [The appellant] really had no choice. It was a very strong State case. So I'm going to give [the appellant] a discount of 15% on that indictment.
[104] ts 472.
The appellant was charged with the offences in IND 469 sometime in 2018. On 8 January 2019, the offences which were largely reflected in IND 469 were listed for committal mention in the Perth Magistrates Court. On 29 March 2019, these charges were committed for trial to the District Court. On 20 June 2019, the District Court made various procedural orders, including listing IND 469 for a 20‑day trial commencing on 5 March 2020. On 1 August 2019, a plea agreement was reached between the State and the appellant. On 5 August 2019, the appellant entered pleas of guilty.
In respect of IND 469, the State submitted that the appellant had not entered her pleas of guilty at the earliest reasonable opportunity. Rather, the pleas had been entered after the appellant had been committed to trial to the District Court and the matter had been programmed for pre‑recording and trial. The State submitted that any reduction under s 9AA of the Sentencing Act 'should be limited'.[105]
[105] State sentencing submissions, 25 February 2020, [30]; WAB 201 - 202.
Defence counsel submitted that the s 9AA reduction for IND 469 should be higher than that in respect of IND 625 because the pleas in respect of IND 469 were entered before EJF had been proofed.[106] Defence counsel did not submit that the appellant entered her guilty pleas at the first reasonable opportunity, or at an early stage in the proceedings.
[106] ts 434.
In his sentencing remarks, his Honour the sentencing judge allowed a reduction of 10% on IND 469.[107]
[107] ts 473.
In respect of IND 625, the appellant entered pleas of guilty shortly after the complainant, DMC, had given pre‑recorded evidence and been subject to cross‑examination, and two months before the scheduled trial in the District Court.[108] His Honour found that the pleas of guilty only came after the appellant 'had seen the strength of the State's case'.[109] His Honour allowed a reduction of 5% pursuant to s 9AA of the Sentencing Act.
Ground 2 - submissions in the appeal
[108] ts 474.
[109] ts 474.
Counsel for the appellant did not submit that the sentencing judge had made any express error in his assessment of the s 9AA discounts. He submitted that, on each indictment, the discount was, in effect, manifestly inadequate.[110]
[110] Appeal ts 33.
In respect of the charges the subject of IND 673, counsel for the appellant accepted that, the offences having been videoed, the State's case against the appellant was 'overwhelmingly strong'[111] and did not require the State to call EJF.
[111] Appeal ts 34.
As we understand the appellant's submissions in respect of the discounts given on IND 469 and IND 625 for the pleas of guilty, the appellant contends that the discounts should have been greater because the pleas of guilty would have given comfort to the victims and those close to them.[112]
Ground 2 - disposition
[112] Appeal ts 35.
Section 9AA of the Sentencing Act is as follows:
9AA. Plea of guilty, sentence may be reduced in case of
(1)In this section -
fixed term has the meaning given in section 85(1);
head sentence, for an offence, means the sentence that a court would have imposed for the offence if —
(a)the offender had been found guilty after a plea of not guilty; and
(b)there were no mitigating factors;
victim has the meaning given in section 13.
(2)If a person pleads guilty to a charge for an offence, the court may reduce the head sentence for the offence in order to recognise the benefits to the State, and to any victim of or witness to the offence, resulting from the plea.
(3)The earlier in the proceedings the plea is made, the greater the reduction in the sentence may be.
(4)If the head sentence for an offence is or includes a fixed term, the court must not reduce the fixed term under subsection (2) -
(a)by more than 25%; or
(b) by 25%, unless the offender pleaded guilty, or indicated that he or she would plead guilty, at the first reasonable opportunity.
(5)If a court reduces the head sentence for an offence under subsection (2), the court must state that fact and the extent of the reduction in open court.
(6)This section does not prevent the court from reducing the head sentence for an offence because of any mitigating factor other than a plea of guilty.
As the statutory text makes clear, the maximum reduction for a plea of guilty is 25%. A reduction of 25% must not be allowed unless the offender pleaded guilty or indicated that he or she would plead guilty at the 'first reasonable opportunity'. The quantum of any reduction is informed by the considerations set out in subsections (2) and (3). A sentencing judge has a discretion as to the quantum of a discount that is informed by those considerations.[113]
[113] Mather v The State of Western Australia [2017] WASCA 148 [33].
The first opportunity is not necessarily the first reasonable opportunity to enter a plea of guilty. Whether or not it is requires an objective assessment, having regard to all relevant circumstances in the particular case, as to whether it would have been reasonable for the accused to have pleaded guilty on an earlier occasion. With respect to IND 673, it is not entirely clear from the sentencing remarks whether his Honour found that the pleas were entered at the first reasonable opportunity, or early in the proceedings. It is not alleged that the sentencing judge fell into error by failing to precisely identify the point of the proceedings when the pleas of guilty had been entered. We will assume, in the appellant's favour, that the pleas were entered at the first reasonable opportunity.
This court has held that the strength of the State case can be taken into account in assessing the factors in s 9AA(2).[114]
[114] Beins v The State of Western Australia [No 2] [2014] WASCA 54; Abraham v The State of Western Australia [2014] WASCA 151; (2014) 244 A Crim R 1.
In respect of the 15% reduction applied to IND 673, it is clear from the sentencing judge's remarks that the most significant factor leading to his assessment of the reduction was the strength of the State's case against the appellant. As counsel for the appellant accepted, the State's case against her was extremely strong. The offending the subject of the indictment was recorded and the identities of the appellant and the victim were not disputed. The prospect of the State securing a conviction was extremely high, if not inevitable. The timing of the pleas meant that there was a saving to the community of the costs associated with the prosecution and defence of the charges and their resolution. Weighing up all relevant matters, and on the assumption that the pleas were entered at the first reasonable opportunity, we are not persuaded that the reduction of 15% on IND 673 was unreasonable or plainly unjust. It was not manifestly inadequate.
We now turn to the 10% reduction made on the offences on IND 469. The appellant did not submit that the pleas of guilty were entered at the first reasonable opportunity. The appellant did not plead guilty until after she had been committed for trial in the District Court and after the matter had been listed for trial. While it is true that the pleas of guilty were entered well before the scheduled commencement of the trial and before EJF's evidence was pre‑recorded, the complainant was left in considerable suspense for a long period of time about whether she would be required to give evidence. The complainant was aware that the appellant had alleged that the offending the subject of IND 673 was isolated and that, in respect of IND 469, her credibility would be tested.
The State's case in IND 469 was not as strong as in IND 673. However, it is likely that the offending the subject of IND 673 would have been admissible in the trial of the charges in IND 469, insofar as they concerned EJF. This would have considerably strengthened the State's case.
Having regard to all of the abovementioned circumstances relevant to IND 469, we have not been persuaded that a reduction of 10% was unreasonable or plainly unjust. It was not manifestly inadequate.
Finally, there is the 5% reduction given in respect of IND 625. The appellant entered her pleas of guilty at a late stage in the proceedings, after the matter had been set down for trial and DMC's evidence had been pre‑recorded. By the time the appellant pleaded guilty, considerable resources had been spent by the State preparing for trial, and the victim had been made to endure the traumatic experience of giving evidence and being cross‑examined. We accept that there was some small saving in the trial not proceeding. It may be inferred, given the timing of the pleas of guilty, that they were entered because DMC was seen as a credible witness and that the case against the appellant was so strong as to make conviction highly likely.
Having regard to all of the circumstances, the reduction of 5% was not unreasonable or plainly unjust. It was not manifestly inadequate.
The appellant emphasised that 'even a minor increase in the discount' would 'result in a not insignificant decrease in the total effective sentence due to the sheer length of that sentence'.[115] The effect of this submission is that this court could, in effect, 'tinker' with his Honour's discretionary s 9AA reductions, because even a small variation in the reduction would give rise to a significant and meaningful reduction of the sentences. As a matter of sentencing principle, this submission cannot be sustained.
[115] Appellant's submissions [76]; WAB 37; appeal ts 31.
Ground 2 is an attack on his Honour's discretionary decision as to the appropriate reduction under s 9AA of the Sentencing Act. Such a decision is governed by the well‑known principles in House v The King.[116] This court is not entitled to simply substitute its decision for that of the sentencing judge on the basis that if this court had been sentencing the appellant it might have given a slightly greater s 9AA reduction. As with the imposition of the sentence itself, there is not one correct reduction for a plea of guilty. There is a range of outcomes which could properly be imposed. An appellate court cannot set aside a s 9AA reduction given at first instance unless it reaches the conclusion that it is unreasonable or plainly unjust. As we have already explained, we have not reached this conclusion in respect of any of the indictments.
[116] House v The King [1936] HCA 40; (1936) 55 CLR 499.
Ground 2 has not been made out.
Ground 3
Ground 3, in effect, alleges that the total effective sentence that was imposed on the appellant of 28 years' imprisonment infringed both limbs of the totality principle.
The legal principles applicable to the totality principle are uncontroversial and well‑established.
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.
The second limb is that the court should not impose a 'crushing' sentence. The word 'crushing' in this context connotes the destruction of any reasonable expectation of a useful life after release. An aggregate sentence may be inappropriately long under the first limb, even if it cannot be described as crushing.
The second limb of the totality principle is 'not an absolute principle'.[117] It has been recognised that there are cases in which the offender, by the very nature of their criminal acts, has forfeited the right to any expectation of being released from prison at a time which would permit them to enjoy the life left to them.[118]
[117] Gulyas v The State of Western Australia [2007] WASCA 263; (2007) 178 A Crim R 539 [49].
[118] Gulyas [49].
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.
A rationale for the totality principle is that there is assumed rehabilitation and reduced demand for retribution after the initial sentences have been served.
A sentencing range for comparable offences is merely one of the factors to be taken into account in deciding whether there has been any infringement 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. If there are no directly comparable cases, this court is not precluded from deciding that a total effective sentence does or does not infringe 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. In the end, each case must be decided on its own particular facts and circumstances.
There is no established tariff for sexual offences involving children because the range of circumstances of sexual offending and sexual offenders is infinitely variable. Accordingly, when examining cases said to be comparable, there are limitations to this exercise, particularly when, as in the present case, there are a very large number of offences of varying types in respect of multiple victims.
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.
Ground 3 - submissions
Counsel for the appellant, while not abandoning the claim that the total effective sentence infringed the second limb of the totality principle, said that he appreciated 'the weakness' of contention.[119] He said the primary argument in respect of ground 3 was in relation to the first limb of the totality principle.[120]
[119] Appeal ts 35.
[120] Appeal ts 35.
Counsel for the appellant accepted, in effect, that the comparable cases provided little assistance, having regard to the 'difficult' exercise of comparing the present case with other cases.[121]
[121] Appeal ts 35.
Counsel for the appellant argued that, having regard to the pleas of guilty and to the appellant's personal circumstances, most notably her deprived upbringing and the abuse that she suffered as a child, the total effective sentence of 28 years' imprisonment infringed the first limb of the totality principle.[122]
[122] Appeal ts 35 - 36.
The appellant's written submissions state that the sentence imposed on the appellant 'is one of the highest imposed in Western Australia for sexual offences' and submitted (despite stating that the comparable cases provide little assistance) that it was 'beyond the tariff for these kinds of offences'.[123] In support of the proposition that the total effective sentence in the present case was 'beyond the tariff', the appellant cited the cases of RGT v The State of Western Australia;[124] SCN v The State of Western Australia;[125] The State of Western Australia v BKJ;[126] and Coulter v The State of Western Australia.[127]
[123] Appellant's submissions [82]; WAB 37.
[124] RGT v The State of Western Australia [2017] WASCA 120.
[125] SCN v The State of Western Australia [2017] WASCA 138.
[126] The State of Western Australia v BKJ [2018] WASCA 136.
[127] Coulter v The State of Western Australia [2019] WASCA 215.
Consistently with the submissions made on behalf of the State before the sentencing judge, senior counsel for the respondent in this court submitted that all of the offending the subject of IND 673 and counts 12, 17, 27, 29 and 45 ‑ 51 of IND 469 fell into the 'worst category' of cases, that is, that each offence is an instance so grave that it warranted the imposition of the maximum prescribed penalty.[128]
[128] See R v Kilic [2016] HCA 48; (2016) 259 CLR 256 [18]; appeal ts 49 - 50.
Senior counsel submitted that the individual sentences imposed upon those offences identified by the respondent as being in the 'worst category' were 'considerably lower than what they ought to be', although it was acknowledged that the individual sentences may be explicable on the basis of totality.[129] Further, it was submitted that his Honour's approach to accumulation and concurrency was 'very generous'.[130] Senior counsel described the reductions on individual sentences and his Honour's approach to concurrency and cumulacy as 'double counting'.[131]
[129] Appeal ts 58.
[130] Appeal ts 58.
[131] Appeal ts 58.
Senior counsel for the respondent submitted that there was no useful comparable case. He submitted that the appellant's offending was 'the worst offending that has come before this court of its type' and that 'there is nothing in this league'.[132] While the total effective sentence imposed upon the appellant was said to be 'heavy', it was submitted that it properly reflected the overall seriousness of the offending and did not infringe the first limb of the totality principle.[133]
[132] Appeal ts 60.
[133] Appeal ts 59.
Senior counsel for the respondent submitted that the sentence did not infringe the second limb of the totality principle. He observed that the appellant will be 65 years old when she becomes eligible for parole and 67 at the end of the service of the full term. He contended that there was nothing to suggest a loss of an expectation of a useful life upon release. Senior counsel also observed that there was no evidence that the appellant suffers from any health condition which might adversely impact on the appellant's expectation of a useful life upon release. It was submitted that even if the total effective sentence could be said to be crushing, the offending was so 'grave and horrific' that the appellant has forfeited the right to be released at an age where she can enjoy what remains of her life.[134]
Ground 3 - disposition
[134] Appeal ts 60.
We have already set out the maximum penalty for each of the offences committed by the appellant and their factual circumstances.
The seriousness of the appellant's offending is self‑evident. It involves such a high level of overall criminality that its seriousness can hardly be overstated. The offending taken as a whole is, having regard to other cases that have come before this court, the worst we have seen.
The appellant's role in the offending was as an active participant, a facilitator and an aider of her co‑offenders. The appellant was not an unwilling or unwitting participant. To the contrary, she actively encouraged her own children to participate in their abuse and normalised it. EJF and OF were completely and utterly vulnerable. They were made available to other adults, both men and women, to sexually abuse. The offences were in no way isolated. They were repeated. In relation to EJF and OF, they were committed over a period spanning between 2011 and 2015. The offences in respect of DMC were committed in one prolonged incident in 2011.
None of the circumstances of aggravation found by the sentencing judge have been challenged in this court. We note the appellant's use of stupefying substances and the high degree of perversion and deviancy frequently employed in the commission of the offences. Some of the offences the subject of IND 673 and IND 469 were recorded. The SD memory card, which was discovered some years after the offending, gives rise to the legitimate fear in EJF that the recording has been distributed to others. The possibility of her being re‑victimised in the future by the distribution of the recording remains.
The seriousness of the offending against DMC must not be overlooked. The appellant groomed DMC. When DMC confided in the appellant about the trouble she was experiencing, the appellant, to foster a false atmosphere of trust, empathy and understanding, told her about her own troubled upbringing, including telling DMC of her sexual abuse as a child. DMC was provided with methylamphetamine and sexually penetrated on multiple occasions by the appellant and W over an extended period of time.
No complaint is made of the individual sentences that were imposed upon the appellant, nor could any complaint be legitimately made. The State did submit in the sentencing proceedings that the offences the subject of IND 673 and some of the offences the subject of IND 469 were in the worst category of cases.[135] While his Honour said these offences were close to being in the worst category, he did not accept the submission that they met this threshold. Towards the end of his Honour's sentencing remarks, his Honour said:[136]
I propose to order lower sentences on an individual basis than might otherwise be appropriate in order to reflect what the State says about a number of your offences as being of a kind that might attract something towards the higher end of the range or close to the maximum penalty. (emphasis added)
[135] In Kilic, the High Court explained at [18] that for an offence to fall into the 'worst category', it would have to warrant the maximum penalty prescribed for that offence.
[136] ts 483.
His Honour described the circumstances of the offending as 'truly unique' and as being 'in a class of their own'.[137] This characterisation has not been disputed in this appeal. The characterisation that the facts were 'in a class of their own' echoes a similar one made in SCN.[138] As reprehensible as the offending was in SCN, the offending in this case is worse.
[137] ts 481.
[138] SCN [6].
While the facts and circumstances of the present case are not truly comparable with the cases cited by the appellant or indeed any case decided by this court, we will briefly refer to their facts and circumstances to see how the outcome in the present case compares with those cases.
In SCN, the offender pleaded guilty to 61 sexual offences relating to his daughter who, over the two‑year period in which the offending took place, was aged between 11 and 13 years. He was sentenced to a total effective term of 22 years 6 months' imprisonment. The principal issue in the appeal was whether the total effective sentence infringed the first limb of the totality principle. The offender engaged in a sexual relationship with his daughter and he also arranged for her to be provided to other men for their sexual gratification. This court dismissed the offender's appeal against sentence, describing the aggregate sentence as 'high', but justified by the very serious circumstances of the case. As serious as SCN undoubtedly was, the offending in that case involved one complainant and involved offending which occurred over a somewhat shorter period of time than the present case.
In RGT, the offender pleaded guilty to sexual offences against children contained in two indictments. The first indictment alleged a total of five offences relating to two victims, the offender's de facto child, a boy named K who, at the relevant times, was aged between 7 and 9 years, and a girl named F who was aged 13 years. The second indictment charged the offender with 22 child sex offences against his 2‑year‑old daughter, A. In respect of the offences against A, the offender entered a fast‑track plea of guilty and the sentencing judge imposed a total effective sentence of 16 years' imprisonment. At a later date, the offender pleaded guilty to the offences against A and F and was sentenced to 9 years' imprisonment to be served partially concurrently with the earlier sentence, with the effect that, for all of the offences in the two indictments, the offender received a total effective sentence of 19 years' imprisonment. In respect of the indictment concerning the offences relating to A, the sentencing judge gave a 15% reduction pursuant to s 9AA of the Sentencing Act. On the other indictment, he gave a 12.5% reduction for the pleas of guilty.
This court upheld a claim that the total effective sentence infringed the first limb of the totality principle and imposed a new total effective sentence of 16 years' imprisonment. It is accepted by the appellant in this court that there were aggravating features present in the appellant's case that were not present in RGT.[139]
[139] Appellant's submissions [96]; WAB 39.
In BKJ, the respondent pleaded guilty on the fast‑track system to 61 offences, the vast majority of which were committed against his daughter, C, who was, at the relevant time, aged between 2 and 12 years. Counts 1 ‑ 7 would not have come to light had the respondent not admitted to them during a lengthy interview with the police. The sentencing judge accorded the respondent a discount of 25%, pursuant to s 9AA of the Sentencing Act, and found that, in addition to the voluntary disclosure on counts 1 ‑ 7, the respondent had made full and frank disclosure of his overall offending. The respondent was sentenced to a total effective sentence of 14 years' imprisonment. The State's appeal against some of the individual sentences and the total effective sentence was dismissed. In doing so, this court found the offending to be at least as serious as the offending in RGT, but more mitigation was available to him. The offending in the present case was substantially more serious than in BKJ and there was less mitigation available to the appellant than for the offender in that case.
Finally, we turn to Coulter. It will be recalled that Mr Coulter and the appellant were co‑accused in IND 673. He was also the subject of a further indictment containing a single charge of persistent sexual conduct concerning EJF, which was limited to three incidents. Mr Coulter pleaded guilty to all the offences in the two indictments. On the first indictment, Mr Coulter was sentenced to 8 years' imprisonment and, on the other indictment, 13 years' imprisonment. Thus, the total effective sentence imposed upon him was 21 years' imprisonment with eligibility for parole. On IND 673, Mr Coulter received a reduction of 15%, pursuant to s 9AA of the Sentencing Act, and, for the offence the subject of the other indictment, a reduction of 25% for the plea of guilty. Mr Coulter's appeal was upheld on the basis of an express error made by the sentencing judge. Mr Coulter was resentenced by this court to a total effective sentence of 17 years' imprisonment.
The present case involves more offending than that committed by Mr Coulter. All of Mr Coulter's offending involved EJF, whereas the appellant also committed offences against OF and DMC. Mr Coulter's offending against EJF, unlike the appellant's offending, did not involve a breach of trust.
Apart from the pleas of guilty, there was very little to be said in mitigation for the appellant. We recognise the appellant had a dysfunctional upbringing, including the childhood sexual abuse discussed earlier in these reasons. However, having regard to the sheer magnitude and seriousness of the crimes committed by the appellant and the need for proper punishment, denunciation and general and specific deterrence, very little weight can be given to those personal circumstances. As explained earlier, the appellant was well aware of the adverse consequences of such offending upon her and yet she offended in the manner she did against her own children and DMC. Her offending in respect of EJF is difficult to comprehend, given that she was aware that EJF had already been the subject of sexual abuse.
The total effective sentence of 28 years' imprisonment is, without question, grave and, to our mind, at the outer limit of the appropriate discretionary range, but having regard to all the circumstances and the relevant sentencing factors we have come to the conclusion that it does not infringe the first limb of the totality principle. The offending the subject of the three indictments was so serious and the mitigating factors so few, that, in the end, we remain unpersuaded that the first limb of the totality principle has been infringed.
We now turn to consideration of whether the second limb of the totality principle has been infringed. In this regard, we accept the submissions made on behalf of the respondent. By the time the appellant is eligible for parole or has fully served the sentence, she will still have some capacity to live a useful life. Further, and in any event, the circumstances of the offending are just so grave that the second limb of the totality principle cannot be applied.
For these reasons, while we would grant leave to appeal on ground 3, the ground has not been made out.
Should this court have viewed the video of the offences in IND 673?
An issue arose in the hearing of the appeal as to whether this court should view the recording of the offences the subject of IND 673. Counsel for the respondent submitted that this court should view the material in order to appreciate its gravity and the appellant's apparent enjoyment. In our opinion, it was unnecessary to view the material, having regard to the detail in which the offending was described in the sentencing proceedings, including in the sentencing remarks. It is also clear from the sentencing proceedings that the appellant did not exhibit any hesitation or reluctance in the commission of the offences. We are also mindful that further viewing of the material would tend to revictimise EJF. While there will be cases where it is necessary for appeal judges to view the kind of material that led to the charges in IND 673, this is not such a case.
Conclusion and orders
None of the grounds of appeal have been made out. The appeal must be dismissed. The orders we would make are as follows:
(1)Leave to appeal on ground 3 is granted.
(2)Leave to appeal on grounds 1 and 2 is refused.
(3)The appeal is dismissed.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
TW
Associate to the Honourable Justice Mazza
16 NOVEMBER 2021
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