SG v The State of Western Australia

[2013] WASCA 236

SG -v- THE STATE OF WESTERN AUSTRALIA [2013] WASCA 236

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2013] WASCA 236
Court:	THE COURT OF APPEAL (WA)
Case No:	CACR:238/2012	Heard:	5 SEPTEMBER 2013
Coram:	NEWNES JA MAZZA JA	Delivered:	15/10/13
No of pages:	11	Judgment Part:	1 of 1
Result:	Leave to appeal refused Appeal dismissed
Category:	B
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Parties:	SG THE STATE OF WESTERN AUSTRALIA
Catchwords:	Criminal law Sentencing Appeal against total effective sentence of 12 years' imprisonment Sexual offences against de facto child Offending commenced when child was 11 years old Multiple offences of sexual penetration Child became pregnant at 15 years of age Offender at moderate to high risk of reoffending No remorse Lengthy criminal record of other offending
Legislation:	Nil
Case References:	CJF v The State of Western Australia [2012] WASCA 69 GMS v The State of Western Australia [2009] WASCA 107 House v The King [1936] HCA 40; (1936) 55 CLR 499 MAS v The State of Western Australia [2012] WASCA 36 MMC v The State of Western Australia [2012] WASCA 187 PDS v The State of Western Australia [2006] WASCA 20 Roffey v The State of Western Australia [2007] WASCA 246 SWD v The State of Western Australia [2012] WASCA 76 The State of Western Australia v Prince [2011] WASCA 22 Wilson v The State of Western Australia [2010] WASCA 82 Woods v The Queen (1994) 14 WAR 341

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : SG -v- THE STATE OF WESTERN AUSTRALIA [2013] WASCA 236 CORAM : NEWNES JA

MAZZA JA

HEARD : 5 SEPTEMBER 2013 DELIVERED : 15 OCTOBER 2013 FILE NO/S : CACR 238 of 2012 BETWEEN : SG

Appellant

AND

THE STATE OF WESTERN AUSTRALIA
Respondent

ON APPEAL FROM:

Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA

Coram : SWEENEY DCJ

File No : IND 1288 of 2011

Catchwords:

Criminal law - Sentencing - Appeal against total effective sentence of 12 years' imprisonment - Sexual offences against de facto child - Offending commenced when child was 11 years old - Multiple offences of sexual penetration - Child became pregnant at 15 years of age - Offender at moderate to high risk of reoffending - No remorse - Lengthy criminal record of other offending

Legislation:

Nil

Result:

Leave to appeal refused

Appeal dismissed

Category: B

Representation:

Counsel:

Appellant : Mr C Miocevich
Respondent : No appearance

Solicitors:

Appellant : C & G Miocevich Law Offices Pty Ltd
Respondent : No appearance

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

CJF v The State of Western Australia [2012] WASCA 69
GMS v The State of Western Australia [2009] WASCA 107
House v The King [1936] HCA 40; (1936) 55 CLR 499
MAS v The State of Western Australia [2012] WASCA 36
MMC v The State of Western Australia [2012] WASCA 187
PDS v The State of Western Australia [2006] WASCA 20
Roffey v The State of Western Australia [2007] WASCA 246
SWD v The State of Western Australia [2012] WASCA 76
The State of Western Australia v Prince [2011] WASCA 22
Wilson v The State of Western Australia [2010] WASCA 82
Woods v The Queen (1994) 14 WAR 341



1 NEWNES JA: This is an application for leave to appeal against sentence.

2 After trial by jury in the District Court, the appellant was found guilty of two counts of indecently dealing with a child under 13 years, one count of sexual penetration of a child under 13, six counts of aggravated sexual penetration of a de facto child and four counts of sexual penetration of a de facto child. The appellant was acquitted of two counts (counts 3 and 5). The complainant was the appellant's defacto daughter, who was aged between 11 and 16 at the times of the offences.

3 The appellant was sentenced to a total of 12 years' imprisonment, with eligibility for parole. He seeks leave to appeal against the sentence on the ground that it infringes the totality principle.

The facts

4 The offending occurred while the appellant was living in a de facto relationship with the complainant's mother, having resumed that relationship in Western Australia some eight years after an earlier relationship between them had ended in Queensland. The complainant was about 11 years old when the relationship resumed.

Count 1

5 This offence occurred when the complainant was about 11 years old. The appellant told her to go to her mother’s room and bend over on the bed on her knees. He said told her to put her bottom in the air and her head on the bed so he could look. He also promised her $50 so she could go shopping. The appellant then stood behind her and masturbated until he ejaculated.

Count 2

6 This offence also occurred the complainant was aged about 11. The appellant told her to shower in her mother's bathroom, which she did. The appellant then came into the bathroom naked and got in the shower with her. The complainant tried to leave but the appellant insisted she wash him with the soap and said he would then wash her. The complainant agreed to wash the appellant's back but was unwilling to continue and returned to her bedroom quickly. While she was looking for clothes, the appellant walked into her bedroom and asked her to drop the towel. She refused, and the appellant left the room when a younger child called out.

Count 4

7 This offence too occurred when the complainant was aged about 11. The appellant and complainant went for a drive to a delicatessen. The appellant stopped in an empty carpark. The appellant told the complainant to get in the back seat of the vehicle and lie down, which she did, and he then joined her, pulling her pants down. He told her to get on her hands and knees and then he put his finger inside her vagina. The complainant found it painful and was upset. She tried to move away by crawling up the seat but the appellant held her still.

Count 6 and 7

8 These offences occurred when the complainant was aged about 14 and the appellant was working in Newman on a fly-in fly-out basis. The offences took place when the complainant was visiting the appellant alone. The complainant was told by the appellant that she could not go anywhere or have cigarettes unless she acceded to his sexual demands. The appellant then told her to sit down and he put his penis in her mouth. She pushed him away and told him that her jaw was hurting (count 6).

9 The appellant then told the complainant to roll over on the bed. He pulled her pants down and lifted her bottom. He then penetrated her from behind with his penis, causing the complainant pain and discomfort. She tried to move out of the position but the appellant held her there until he ejaculated (count 7).

Count 8

10 This offence occurred around the time that the appellant and the complainant's mother's baby, Bella, was born. The baby was stillborn and the appellant was spending time both in hospital with the mother and at home. One night while the other children were asleep, the appellant sat down next to the complainant on the couch and pressed her for sexual favours, pulling at her pants. The complainant ended up on the floor on all fours and the appellant penetrated her with his penis from behind. The penetration was painful. The complainant was particularly upset by the incident because it occurred at a time when she was grieving and her mother was in hospital.

Count 9

11 This offence occurred on the complainant's 15^th birthday when a friend was staying over for the night. The appellant told the complainant to come back after the friend had gone to bed. When she returned the appellant demanded that she suck his penis. She told him that she did not want to but he grabbed her hair and pushed his penis into her mouth. He kept her there by holding her hair until he ejaculated into her mouth.

Count 10

12 This offending involved sexual penetration, as a result of which the complainant became pregnant. The complainant had no precise recollection of the occasion that led to her becoming pregnant. She was fifteen at the time. The appellant told her to say that the father of the baby was a boy she had sex with at a party after she had been drinking.

Count 11

13 This offending occurred while the complainant was pregnant. It is likely she was under the influence of cannabis at the time and she was not alert enough to physically resist the appellant. The appellant rubbed his hands on her and she told him to leave her alone. She stood up and the appellant put his hand down her pyjamas and inserted his fingers into her vagina. The penetration was painful and caused her to bleed.

Count 12 and 13

14 These offences occurred after the complainant turned 16. The appellant entered the complainant's bedroom, which she shared with her baby son. He told her to lie on the ground, pushed her legs open and put his fingers inside her vagina (count 12). The appellant then penetrated her vagina with his penis. He did so roughly and it was painful for the complainant (count 13). The appellant only stopped when the complainant's mother turned on a light in the hallway.

Counts 14 and 15

15 This offending took place the night after counts 12 and 13. The complainant was standing at the bathroom mirror. The appellant entered the bathroom and started rubbing his hands on the outside of her clothes. He told her to take her pants off and he masturbated while she did so. He told her to bend over the bath and he put his fingers inside her vagina (count 14). He then put his penis inside her vagina and had intercourse until he ejaculated (count 15).

The sentencing remarks

16 The sentencing judge noted that the appellant was 35 years of age. He had a lengthy criminal record both in Queensland and in this state after he moved here in 2006. Her Honour observed that while the appellant had no prior convictions for sexual offences, his criminal record included offences for which he had received a sentence of more than 11 years' imprisonment in Queensland and revealed an utter disrespect for the law.

17 Following the appellant's arrival in this state he resumed a relationship with the complainant's mother, some eight years after their relationship in Queensland had ended. At the time the complainant was about 11 years old. Over the ensuing years, the appellant and the complainant's mother had three more children together and the appellant became a father figure to the complainant.

18 Her Honour found that the appellant began grooming the complainant within months or even weeks of moving in with the family. The appellant used bribery and promises together with intimidation and physical coercion to obtain sexual favours. Her Honour noted that the offences had occurred in the context of an ongoing abusive sexual relationship where sexual activity between the appellant and the complainant occurred frequently, often causing the complainant significant pain and discomfort. The appellant did not use contraception, which resulted in the complainant becoming pregnant when she was fifteen.

19 The sentencing judge observed that there were few mitigating circumstances. Her Honour described the appellant's childhood as 'appalling', involving exposure to domestic violence and abuse, and being introduced to illicit substances by his stepmother at the age of 11. Ultimately the appellant became a street kid and he began using amphetamines at the age of 15. The appellant had a fractured education and spent many years in juvenile detention and subsequently in prison. Much of the appellant's offending behaviour was attributable to drug abuse. The appellant's drug use and heavy drinking increased after his baby daughter died, and he suffered from depression.

20 Her Honour considered that a psychological report did not indicate any real acceptance of responsibility or any remorse by the appellant, and noted that the author of the report considered the appellant to be at a moderate to high risk of reoffending.

21 Her Honour sentenced the appellant as follows:

Count	Offence	Maximum penalty	Penalty imposed
1	Indecently dealing with a child under 13 years – s 320(4).	10 years	12 months' (concurrent)
2	Indecently dealing with a child under 13 years – s 320(4).	10 years	12 months' (concurrent)
4	Sexual penetration of a child under 13 years – s 320(2).	20 years	3 years 6 months' (head sentence)
6	Sexually penetrated a child aged under 16 years known to be a de facto relative – s 329(2).	20 years	3 years' (concurrent)
7	Sexually penetrated a child aged under 16 years known to be a de facto relative – s 329(2).	20 years	3 years 6 months' (cumulative)
8	Sexually penetrated a child aged under 16 years known to be a de facto relative – s 329(2).	20 years	3 years 6 months' (cumulative)
9	Sexually penetrated a child aged under 16 years known to be a de facto relative – s 329(2).	20 years	3 years' (concurrent)
10	Sexually penetrated a child aged under 16 years known to be a de facto relative – s 329(2).	20 years	18 months' (cumulative)
11	Sexually penetrated a child aged under 16 years known to be a de facto relative – s 329(2).	20 years	3 years' (concurrent)
12	Sexually penetrated a child known to be a de facto relative – s 329(2).	10 years	2 years' (concurrent)
13	Sexually penetrated a child known to be a de facto relative – s 329(2).	10 years	2 years 6 months' (concurrent)
14	Sexually penetrated a child known to be a de facto relative – s 329(2).	10 years	2 years' (concurrent)
15	Sexually penetrated a child known to be a de facto relative – s 329(2).	10 years	2 years 6 months' (concurrent)
Total term	12 years' imprisonment

Ground of appeal

22 The appellant's sole ground of appeal was that the total effective sentence infringed the first limb of the totality principle.

Disposition

23 The first limb of the totality principle requires a judge who is sentencing an offender for multiple offences to ensure that the total effective sentence bears a proper relationship to the overall criminality involved in all of the offences, viewed in their entirety and having regard to all the circumstances of the case, including those referable to the offender personally: Roffey v The State of Western Australia[2007] WASCA 246 [24].

24 The appellant did not challenge any of the individual sentences but his counsel submitted that the sentencing judge should have made the sentence on count 10 concurrent with the head sentence, resulting in a total effective sentence of 10 years and 6 months. Such a sentence, it was submitted, would have properly reflected the overall criminality involved in all of the offences. It was not suggested that there was any other basis upon which such an order for concurrency should have been made.

25 The principles to be applied on an appeal of this kind are well known. This court cannot interfere with a sentence merely because it would have exercised the sentencing discretion differently to the sentencing judge. It can only do so if a material error on the part of the sentencing judge is shown. A contention that a sentencing judge infringed the totality principle involves an allegation that error is to be inferred from the result. In such a case, it is necessary to show that the sentence was so unreasonable or unjust that the appellate court is compelled to the conclusion that, although it is not possible to discover the exact nature of the error, a substantial wrong has nevertheless occurred: House v The King [1936] HCA 40; (1936) 55 CLR 499, 505; Wilson v The State of Western Australia [2010] WASCA 82 [2].

26 In considering whether a total effective sentence is unjust or unreasonable, regard is had to sentences customarily imposed for offences of that type in an endeavour to achieve broad consistency in sentencing.

27 For offences of the kind in this case, the primary sentencing considerations are general and specific deterrence, and the need to protect vulnerable children, with reduced weight being given to matters referable to the offender personally: Woods v The Queen (1994) 14 WAR 341; MMC v The State of Western Australia [2012] WASCA 187 [48]. While there is no tariff for sexual offences involving children, it is well-established that cases of intra-familial sexual abuse typically attract significant sentences of imprisonment: The State of Western Australia v Prince [2011] WASCA 22 [18].

28 A consideration of other cases involving offending of this nature does not assist the appellant. I have had regard to a number of cases. It is unnecessary to canvass all of them. It is sufficient to refer to the following.

29 In SWD v The State of Western Australia [2012] WASCA 76, the appellant was convicted after trial of six counts of sexually penetrating a child known to be a lineal relative. Two counts involved the digital and penile penetration of the anus of his 10-year-old son and the other four counts involved penile penetration of his daughter who was then 7 to 8 years old. Much of the offending was violent, involving physical restraint, and very painful. The offences against the appellant's daughter were representative of sexual conduct towards his daughter over a six month period. As a result of the offending, the daughter required reconstructive surgery. The appellant showed no insight or remorse. An appeal against a total effective sentence of 14 years' imprisonment was dismissed.

30 In CJF v The State of Western Australia [2012] WASCA 69, the appellant was convicted after trial of two counts of indecently dealing with, and four counts of sexually penetrating, a girl under the age of 16 years whom he knew to be his de facto child. The counts for which the appellant was sentenced were representative of ongoing sexual abuse which commenced when the complainant was nine years old. The offending involved both digital-vaginal and painful penile-vaginal penetration, accompanied by actual violence or threats of violence, committed when the complainant was 12 or 13 years old. A total effective sentence of 14 years' imprisonment was set aside on appeal and a sentence of 12 years' imprisonment imposed.

31 In GMS v The State of Western Australia [2009] WASCA 107, the appellant pleaded guilty to 13 counts of sexual offences involving his two daughters, aged between 5 and 11 years and 9 and 17 years respectively at the time of the offending. There were three counts of indecent dealing with a child known to be a lineal relative, nine counts of sexually penetrating a child known to be a lineal relative and one count of attempting to sexually penetrate a child known to be a lineal relative. The counts of sexual penetration involved penile-vaginal and penile-anal penetration. One of the complainants became pregnant as a result at age 17 and underwent an abortion. Despite his guilty plea, the appellant denied responsibility for the offences, claiming he was unaware if they had occurred because he was on drugs or intoxicated over that period. He had no insight into how his daughters may have been affected by the abuse. He had one prior conviction for a child sexual offence. An appeal against a total effective sentence of 12 years and 6 months' imprisonment was dismissed.

32 In PDS v The State of Western Australia [2006] WASCA 20, the applicant was found guilty after trial of six counts of sexual offences against his natural daughter, who was aged between 12 and 16 years old at the time of the offences. The offending included penile-vaginal, digital-anal and penile-anal penetration and oral sex. The counts on the indictment were described as particularised events occurring against the background of repeated sexual abuse of the complainant by the applicant. The only mitigating factors were the applicant's lack of relevant convictions and childhood experience of domestic violence. He showed no remorse and was in denial about offending. An appeal, against a total effective sentence of 12 years' imprisonment was dismissed.

33 In MAS v The State of Western Australia [2012] WASCA 36, the appellant was convicted after trial of 25 offences of sexual abuse of the daughter of his de facto wife. The first offence occurred when the complainant was 11 or 12 years old. The offending included penile-vaginal, digital-vaginal, penile-anal penetration, and oral sex, and was against a background of repeated sexual abuse of the complainant by the offender over a period of about seven years. The offending was accompanied by threats to kill the complainant, humiliation and violence. The complainant was a vulnerable child. She had a mild physical disorder, was bullied at school and had limited access to other people outside school hours. She became pregnant to the appellant at the age of 16 and underwent an abortion. An appeal against a total effective sentence of 12 years' imprisonment was dismissed.

34 The offending in the present case was very serious. It involved continual offending over a number of years, from the time the complainant was 11 years old, facilitated by a combination of inducements, intimidation and physical coercion. The offending was calculated and persistent. The appellant, who was a father figure to the complainant, set about exploiting the complainant in an utterly callous way to satisfy his own sexual desires. He engaged in the sexual abuse without regard to the physical pain it obviously caused the complainant and without using any contraception. The appellant was quite indifferent to the risks involved in unprotected sexual intercourse, as a result of which the complainant became pregnant at the age of 15. The appellant's complete lack of concern about the effect of his conduct on the complainant is exemplified by the fact that he persisted in it even while she was grieving for the death of her mother's baby.

35 There is, as the sentencing judge observed, little by way of mitigation beyond the appellant's dysfunctional upbringing. No remorse is evident and the psychological report indicates that there is no real acceptance of responsibility by the appellant, who is at a moderate to high risk of reoffending. While the appellant has no prior convictions for sexual offending, his long criminal record indicates that he has little respect for the law.

36 In the circumstances of this case, the total effective sentence of 12 years' imprisonment imposed by the sentencing judge is clearly not disproportionate to the overall criminality involved in all the offences. The appeal has no reasonable prospect of success.

Conclusion

37 I would refuse leave to appeal and dismiss the appeal.

38 MAZZA JA: I agree with Newnes JA.