SGT v The State of Western Australia
[2017] WASCA 136
•20 JULY 2017
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: SGT -v- THE STATE OF WESTERN AUSTRALIA [2017] WASCA 136
CORAM: BUSS P
MAZZA JA
HALL J
HEARD: 22 MAY 2017
DELIVERED : 20 JULY 2017
FILE NO/S: CACR 19 of 2017
CACR 20 of 2017
BETWEEN: SGT
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram :PARRY DCJ
File No :IND 357 of 2016
Catchwords:
Criminal law - Sexual offences - Indecent dealing with lineal relative - Appeal against conviction - Longman warning - Whether adequate - Appeal against sentence - Whether aggregate sentence infringed first limb of totality principle - Whether two individual sentences manifestly excessive
Legislation:
Nil
Result:
Appeals dismissed
Category: B
Representation:
Counsel:
Appellant: Mr S B Watters
Respondent: No appearance
Solicitors:
Appellant: Morris Law Pty Ltd
Respondent: Director of Public Prosecutions (WA)
Case(s) referred to in judgment(s):
BGR v The State of Western Australia [2014] WASCA 82
GHK v The State of Western Australia [2014] WASCA 19; (2014) 238 A Crim R 178
Giglia v The State of Western Australia [2010] WASCA 9
HFM v The State of Western Australia [2012] WASCA 217
JAW v The State of Western Australia [2016] WASCA 40
Longman v The Queen [1989] HCA 60; (1989) 168 CLR 79
MB v The State of Western Australia [2016] WASCA 160
MPD v The State of Western Australia [2008] WASCA 57
PNS v The State of Western Australia [2016] WASCA 174
RMD v The State of Western Australia [2017] WASCA 70
Woods v The Queen (1994) 14 WAR 341
REASONS OF THE COURT: The appellant was convicted after trial of four counts of indecently dealing with a child who he knew to be his lineal relative contrary to s 329(4) of the Criminal Code and one count of encouraging a child who he knew to be his lineal relative to engage in sexual behaviour contrary to s 329(5) of the Criminal Code. He was acquitted of a number of other charges. He was sentenced to a total effective sentence of 4 years and 6 months' imprisonment.
Appeal notices seeking leave to appeal against both conviction and sentence were filed on 31 January 2017. Those notices were over one month out of time and extensions are required. An affidavit filed by the appellant's solicitor does not adequately explain the delay. Whether an extension is granted depends upon the merits of the appeal.
The appeal against conviction asserts that the trial judge failed to give an adequate Longman warning. The appeal against sentence asserts that the aggregate sentence infringed the first limb of the totality principle and that two of the individual sentences were manifestly excessive. For the reasons that follow, none of the grounds against either conviction or sentence has a reasonable prospect of succeeding. Leave to appeal in respect of each of the grounds should be refused with the consequence that the appeals are dismissed.
Prosecution case
The complainant is the appellant's daughter. She was aged between 7 and 12 years old at the time the offences were committed.
The appellant and the complainant's mother had a relationship for approximately four years. They separated when the complainant was about 2 1/2 years old. The complainant remained in the full‑time custody of her mother who moved to a country town when the complainant was about 4 years old. An arrangement was reached that the complainant would stay with the appellant every second weekend in Perth. The complainant's mother would drive her to a meeting point about halfway between the town where they lived and the city. The appellant would collect the complainant and return with her to Perth. By this time the appellant had remarried and the complainant would stay with him and his wife. Sometimes the appellant would be accompanied by his wife or younger children when he drove to collect the complainant and sometimes he was alone.
The first incident occurred on an occasion when the appellant had collected the complainant and was driving her back to Perth. She was aged 7 at the time. He stopped the car in a parking bay that was in a heavily treed area. He told the complainant that he would give her $50 if she let him touch her. She said no, but the appellant proceeded to touch her vagina with two fingers, both under and on top of her pants. She tried to move his hand away and started to cry. This incident relates to count 1.
The second incident occurred in similar circumstances. The appellant stopped the car at a different car parking bay and then told the complainant to touch his penis. He grabbed the complainant's hand and moved it towards his penis, saying, 'All little girls do it to their dads'. The complainant saw the appellant's penis and believes that she touched it for a short while. It is the appellant's conduct in encouraging the complainant to touch his penis that relates to count 2.
Sometime later when the complainant was aged between 8 and 9 the complainant was attending a school program in Perth. At around this time she stayed at the house of the appellant's wife on a weekend visit. The appellant was no longer living with his wife at this time, though he was a frequent visitor. Whilst at the house that weekend the appellant showed the complainant a pornographic video on a computer in which a young girl who appeared to be a little older than the complainant was sucking on the penis of an adult man. This conduct relates to count 3.
Sometime later when the complainant was aged between 9 and 10 years old she was again staying at the appellant's wife's home. Early one morning the appellant went into the room where the complainant was sleeping. He held down her arms and moved her pyjama pants and underwear to her knees. He touched her vagina with two fingers of one hand and moved his fingers around. The complainant was squirming and the appellant told her that if she did not let him do it he would kill her mother. This conduct relates to count 4.
At a later time when the complainant was aged between 11 and 12 she was again at the appellant's wife's home. One early morning, the appellant went into the room where the complainant was sleeping. He touched her vagina over her clothes and moved his hand around. The complainant moved but the appellant continued to touch her. This conduct relates to count 5.
The complainant first spoke about the incidents in May 2015. She told friends at school without giving details. She then spoke to a youth coordinator at the school. Due to mandatory reporting requirements the school notified the police. The complainant was then interviewed on 14 May 2015. The appellant was interviewed on 9 June 2015 and charged the same day. His recorded interview was not tendered in evidence at the trial.
Longman warning
The offences were alleged to have occurred between 11 July 2008 and 13 July 2013. The complainant first reported the incidents in May 2015. The appellant was informed of the allegations when interviewed on 9 June 2015. Accordingly, between two and seven years elapsed between the date of the incidents and the appellant being informed of them by the police.
The trial judge gave the jury directions in this regard. First, he summarised for the jury the evidence as to when the complainant had first told anyone. His Honour identified that there was a delay of between six to seven years in relation to count 1, four to seven years in relation to count 2, five to six years in relation to count 3, and two to three years in relation to counts 4 and 5. He then told the jury that the complainant's evidence was fundamental to the State's case and that they must be satisfied beyond reasonable doubt as to her truthfulness, accuracy and reliability before they could convict the appellant of any of the charges. His Honour told the jury that because of the crucial nature of that evidence and the seriousness of the allegations they should scrutinise the complainant's evidence with special care.
His Honour told the jury that human memory is fallible and that the longer the delay the more opportunity there is for error. He said that was particularly the case in relation to events occurring in childhood. He said that it was a matter of common experience that the longer a person believes something to have happened the more convinced they are that it did happen. This can be so even if the person is mistaken as to their recollection. His Honour then reminded the jury that the defence position was that the complainant had a strong motivation to make up allegations against the appellant because she wanted to live with her mother rather than the appellant's wife. He also pointed out that the complainant had been interviewed as part of a Department for Child Protection inquiry in October 2013 and had not taken the opportunity to complain about the conduct.
His Honour then gave the following direction:
Also, ladies and gentlemen, bear in mind that because of the delay, the evidence of [the complainant] cannot be fully tested. By reason of delay [the appellant] has lost the opportunity to bring forward matters of defence that might go to test the evidence of [the complainant] and has therefore been disadvantaged.
And by 'disadvantaged' I suggest that the usual way of testing a complainant's evidence is very often by reference to surrounding circumstances as to details which, while not necessarily significant in themselves, may help to indicate whether a complainant is truthful, accurate and reliable.
And so you should bear in mind forensic disadvantage suffered by [the appellant] not being able to challenge [the complainant] or what [the complainant] says because the incidents giving rise to the charges are alleged to have occurred some time ago, in July 2008 to July 2009 in relation to two counts, 1 and 2, July 2009 to July 2011 in relation to count 3 and July 2012 to July 2013, counts 4, 5 and 6.
If the allegations had been made earlier, if complaints had been made earlier, and [the appellant] had been informed earlier and been given the opportunity to undertake investigations he could perhaps have called evidence at the trial to contradict or throw doubt on [the complainant's] evidence.
And because of the delay [the appellant] has a diminished ability to test the truthfulness, accuracy and reliability of [the complainant's] evidence by reference to surrounding circumstances.
The passage of time is a factor in people's recollection of events, and memory and recollection often dims with the passage of time. The passage of years between the alleged events and the matter coming to court for hearing raises the question that you must consider, which is the truthfulness, accuracy and reliability of [the complainant's] recollection and whether or not you can safely rely on what she said.
Now, that's a specific issue which you must address when considering whether or not you accept her evidence because as I've explained, the passage of time and the way the matter has unfolded and passed means that [the appellant] has, to a degree, lost the means of testing certain aspects of the evidence against him.
And so having regard to all of those matters, the direction which I give you is one that's based on the particular experience of courts in cases such as this. Because of the long delay I direct that it is particularly important that you scrutinise the evidence of [the complainant] with special care. The direction that I give you is given to you because of the real danger or risk of a miscarriage of justice which arises from convicting on [the complainant's] evidence alone.
Now, you are at liberty to act on the evidence of [the complainant] if you are satisfied of the truth and accuracy of it but it would be dangerous to convict [the appellant] on the uncorroborated evidence of [the complainant] unless, having scrutinised her evidence with great care, having considered the circumstances relevant to that evidence that I have referred to and taking full account of the warning that I have given you, you are satisfied beyond reasonable doubt of its truth, reliability and accuracy (ts 390 ‑ 392).
Ground of appeal - conviction
The ground of appeal is as follows:
There was a miscarriage of justice occasioned by the learned trial judge failing to give the jury an adequate 'Longman warning' in relation to counts 1 to 5 on indictment 357 of 2016;
Particulars
1.1the relevant parts of the summing up were expressed as a comment to the jury on their approach to the evidence rather than a warning that was required;
1.2the 'Longman warning' was not adequate crafted by reference to the facts and circumstances of the particular case.
Merits of the appeal against conviction
The principles in relation to Longman warnings are well known. They derive from Longman v The Queen [1989] HCA 60; (1989) 168 CLR 79 and the many other cases that have followed it. A Longman warning is required where there has been a substantial delay between the occurrence of the alleged offence and the accused being informed of the complaint. In such circumstances, the accused will have suffered forensic disadvantage by losing the chance adequately to test the complainant's evidence and the chance adequately to marshal a defence. The warning is given because a jury is unlikely to be familiar with the particular difficulty experienced by the accused as a result of a substantial delay.
As to the content of a Longman warning, in RMD v The State of Western Australia [2017] WASCA 70, Buss JA said:
When a Longman warning is necessary, the trial judge must direct the jury to the effect that, as a result of the substantial delay, the accused has lost the chance adequately to test the complainant's evidence and the chance adequately to marshal a defence. The jury must be instructed to the effect that, although it can convict solely on the complainant's evidence if satisfied beyond reasonable doubt as to the truth and accuracy of his or her evidence, it must scrutinise the complainant's evidence with great care and take into account any facts and circumstances (including the forensic disadvantage suffered by the accused as a result of the substantial delay) which have a logical bearing on the truth and accuracy of that evidence. It is essential that the warning be given as a direction which the jury is bound to follow. A mere comment will not suffice. See Crampton [142] (Hayne J); AM v The State of Western Australia [2008] WASCA 196; (2008) 188 A Crim R 457 [17] (Steytler P); FJL [20] ‑ [28] (Wheeler JA, Pullin JA agreeing); MAS v The State of Western Australia [2012] WASCA 36 [18] ‑ [20] (Martin CJ, Pullin & Mazza JJA agreeing).
However, a Longman warning has not been reduced to an immutable formula or a ritual incantation, divorced from the facts and circumstances of the particular case. When the warning is necessary it must be crafted, by reference to the facts and circumstances of the particular case, with the object of ensuring a fair trial and avoiding the perceptible risk of a miscarriage of justice. See Christophers v The Queen [2000] WASCA 308; (2000) 23 WAR 106 [37] (Owen J, Pidgeon & Ipp JJ agreeing); Crisafio v The Queen [2003] WASCA 104; (2003) 27 WAR 169 [17] ‑ [18] (Murray J, Malcolm CJ agreeing), [63] ‑ [66] (Parker J); FJL [24] (Wheeler JA, Pullin JA agreeing); MAS [28] (Martin CJ, Pullin & Mazza JJA agreeing) [132] ‑ [133].
The appellant submits that the trial judge's direction was inadequate because it was not in sufficiently imperative terms. It is submitted that because the trial judge used the terms 'bear in mind' and 'suggested', what was said could have been understood as mere comment rather than a direction of law that the jury were obliged to apply.
It was also submitted that the issue of delay was not linked by the trial judge to prejudice suffered by the appellant. It was suggested that the direction was not tailored to the specific circumstances of the case because the trial judge did not refer to particular matters that the appellant had lost the opportunity of inquiring into because of the delay. These were described in oral submissions, though in very general terms, as follows:
1.The inability to identify the parking bay in relation to count 1 and to test the way it was described by the complainant.
2.The inability to swab the complainant's hand (presumably to determine if the appellant's DNA was on it) in relation to count 2.
3.The inability to search the appellant's wife's house to determine whether there was a pornographic video there or a computer capable of displaying such a video.
4.In relation to counts 4 and 5, the loss of the opportunity to question anyone at the time as to whether they had heard or seen anything.
Some of these are highly speculative and it would likely have been detrimental to the appellant to have focused attention on them. For example, if the complainant's hands had been swabbed soon after the event the subject of count 2 and the appellant's DNA was not found, there would be so many other possible explanations that such a negative result could not have assisted the appellant. In any event, the complainant could not recall whether she actually touched the appellant's penis and it was the encouragement to do so that was alleged to constitute the offence. In relation to item 3, it is difficult to see what value a search for the video would have had, given that the appellant was not residing at the house at that time. In relation to count 1, the description of the car parking area given by the complainant was in such general terms that it would have been difficult to identify it regardless of any delay.
Furthermore, prior to summing up the trial judge discussed with counsel the directions he intended to give (ts 323). He read out the Longman warning that he later gave and that is reproduced in these reasons. Experienced trial counsel who appeared for the appellant made no adverse comments about that direction, either then or after the summing up. Nor did trial counsel suggest that the particular matters referred to above should have been incorporated in the direction.
The appellant placed some reliance on MB v The State of Western Australia [2016] WASCA 160. In that case the Longman warning was found to be inadequate because it did not convey to the jury the risk of a miscarriage of justice arising from a combination of delay in bringing the matter to trial and the fact that the complainant's account was the only evidence of the commission of the charged offence. In particular, the direction did not link the delay with the danger of miscarriage. Mitchell JA (with whom Mazza JA agreed) noted that there was a difference between a warning as to the danger or risk of a miscarriage of justice and direction about the importance of looking at the complainant's evidence and being satisfied about its truthfulness and reliability.
In MB, the Chief Justice noted that on a number of occasions the trial judge had used the word 'should' and had told the jury that they should 'bear in mind' certain matters when they 'approached' the issue of delay. His Honour concluded that the terminology used by the judge, when considered in combination, compelled the conclusion that the direction that was given was properly characterised as a comment. However, the difficulty with those phrases very much depended upon the particular context.
As to the adequacy of the words used in a direction, Mitchell JA said in MB that [66]:
The warning contemplated by the decisions of the High Court in Longman and Crampton is a warning that it would be dangerous to convict on the complainant's evidence alone without the closest scrutiny of the complainant's evidence. However, as has been recognised by a number of decisions of this court, no particular form of words is required in every case, and the sufficiency of a Longman direction does not depend on the use of the word 'dangerous'. Rather, as this court recognised in MAS:
[t]he question is whether the direction given, read as a whole, conveyed, with appropriate emphasis, the forensic disadvantage suffered by the appellant, and the risk of a miscarriage of justice arising from that prejudice, particularly if the uncorroborated testimony of the complainant provided the only basis for conviction, notwithstanding that the trial judge failed to use the expression 'dangerous to convict' [29].
It can be appreciated from this that in deciding whether a direction is adequate it is necessary to look at it as a whole. To extract individual words or phrases that may have been problematic in another context is unhelpful and inappropriate. The meaning and significance of words will invariably depend upon the context in which they are used.
In the present case, whilst the trial judge did use the phrase 'bear in mind' it was clear that he was doing so not to signify that he was making a comment to the jury but rather, to introduce a topic on which he was giving them a direction. He then reminded the jury of the delay and of the forensic disadvantage which flowed from it. Contrary to the appellant's submissions, his Honour made a very clear link between the delay and the prejudice. He referred both to the disadvantage in marshalling a defence and the disadvantage in cross‑examining the complainant. He then gave the jury a warning using the words 'a specific issue which you must address', 'I direct' and 'the direction which I give you', making it unmistakeably clear that what he was saying was not a mere comment but a direction of law that the jury was obliged to follow. Though it was not strictly obligatory to do so, his Honour also used the words 'dangerous to convict'.
There is no merit in the suggestion that the Longman warning given in this case was inadequate. The ground of appeal has no reasonable prospect of success.
Grounds of appeal - sentence
The grounds of appeal against sentence are as follows:
1.The sentence of 2 years' immediate imprisonment that was imposed for each of count 1 and count 5 were in all the circumstances individually manifestly excessive.
Particulars of circumstances
1.1the appellant's antecedents;
1.2the relevant touching was on top of the clothing;
1.3the criminality otherwise involved; and
1.4sentences imposed in broadly comparable cases.
2.The learned sentencing judge erred in imposing a total effective sentence that infringed the first limb of the principle of totality having regard to the overall criminality involved in the various offences when viewed in their entirety and in all the circumstances of the case including those referable to the appellant.
Particulars
2.1the appellant's antecedents;
2.2the totality criminality involved; and
2.3sentences imposed in broadly comparable cases.
Personal circumstances
The appellant's personal circumstances are as follows. He was born in Greece in 1976 and moved to Australia with his family when he was 7 years old. He has two sisters and a brother and had a stable upbringing with nothing untoward in his childhood. His family remains supportive of him.
He was 40 years of age at the time of sentencing and between the ages of 32 and 37 at the time of the offending. He has been married to his wife for the last 13 years, although they have lived separately for the last six or seven years. The appellant and his wife have three children together.
The appellant left school after completing year 10 and worked in his parents' business until he was 17. Since that time he has worked consistently, originally as a cleaner and then subsequently as a forklift operator and in fitting car spoilers. He is in good physical and mental health. He has no relevant criminal convictions.
Sentencing remarks
The grounds of appeal do not suggest that there were any express errors in the judge's sentencing remarks. In these circumstances, the remarks can be summarised briefly.
His Honour said that it was well established that in cases of intrafamilial sexual abuse, matters personal to offenders are of less mitigatory weight than might otherwise be the case. His Honour said that for this reason little weight could be accorded to the fact that the appellant had no prior convictions and retained the support of his wife.
His Honour said that there were a number of significant aggravating factors, namely:
1.That the appellant was in a position of trust and authority in relation to the complainant as her biological father and because she was visiting him as part of custody arrangements, or was living with his wife at a time when he was also at the house from time to time.
2.The complainant was highly vulnerable and defenceless. In regard to the first two counts, the complainant was completely at the mercy of the appellant as he had driven off the road in a remote location.
3.The offending was not an isolated incident but was committed over a period of four or five years.
4.The complainant was aged between 7 and 12 years old at the time the offences were committed. The appellant had robbed his own daughter of a normal childhood for the sake of his own sexual gratification.
5.The appellant was not immature in age or intellect and had formed significant lengthy adult relationships in the past.
6.The appellant had sought to normalise his conduct and groom his victim. His Honour referred to the 'truly disturbing and vile statement' to the complainant in relation to count 3 that 'all little girls do this to their dads'. His Honour also found that showing the pornographic video to the complainant was an effort on his part to normalise the sexual abuse.
7.In relation to the first offence, the appellant had sought to use bribery to induce the complainant to comply with his wishes, though no money was ever paid.
8.In relation to the second offence, the appellant had not only asked the complainant to touch his penis but had physically grabbed her hand and moved it towards his penis.
9.In relation to count 4, the appellant had used physical force by holding the complainant's hands down while he molested her. He had also made a threat that if she did not comply he would kill her mother.
His Honour took the totality principle into account by reducing the sentence he would have imposed on count 3 from 18 months' imprisonment to 6 months. The sentences imposed on the individual counts were 2 years' imprisonment on each of counts 1, 2 and 5, 6 months' imprisonment on count 3 and 2 years 6 months' imprisonment on count 4. The sentences on counts 1, 2 and 3 were ordered to be served cumulatively and the remaining sentences were ordered to be served concurrently. This produced a total effective sentence of 4 years and 6 months.
Ground 1 - manifest excess, counts 1 and 5
A sentence is manifestly excessive if it is unreasonable or plainly unjust. To determine whether a sentence is manifestly excessive it is necessary to view it in the perspective of the maximum penalty prescribed by law for the offence, the standard of sentences customarily observed with respect to that offence, the place that the criminal conduct occupies in the scale of seriousness of offences of the type and the personal circumstances of the offender.
Where an individual sentence forms part of a larger sentencing exercise it is often artificial to look at it in isolation. This ground seeks to engage in such an artificial exercise. Where there is a challenge on totality grounds the severity of a sentence imposed on an individual count will usually fall to be assessed in light of the sentences imposed in respect of the other counts and its contribution to the total effective sentence: Giglia v The State of Western Australia [2010] WASCA 9. In this case each sentence on count 4 and count 5 was made wholly concurrent.
The ground relates only to counts 1 and 5. Those were offences of indecent dealing with a child known to be a lineal relative. That is an offence contrary to s 329(4) of the Criminal Code for which the maximum penalty is 10 years' imprisonment where the child is under the age of 16: s 329(10).
As to the seriousness of these two offences, the appellant sought to distinguish them on the basis that they involved touching over clothing. It was suggested that this made them less serious than other offences of the type. In fact, the evidence in that regard on count 1 was unclear. In any event, that is but one consideration. There were other factors in relation to both of the counts that were aggravating. Those other factors were set out by the trial judge.
The appellant referred to a small number of cases which were said to be comparable. They were BGR v The State of Western Australia [2014] WASCA 82; JAW v The State of Western Australia [2016] WASCA 40 and HFM v The State of Western Australia [2012] WASCA 217. Such a small sample is insufficient to establish that sentences in respect of offences of this nature have an established range. In any event, none of the cases was meaningfully comparable to that of the appellant.
In BGR, the offender, who was aged 72 at the time of sentencing, pleaded guilty on the fast‑track system to six counts of indecent dealing with a lineal relative, being his granddaughter. The complainant in that case was aged between 4 and 7 years at the time of the offences. The offender made full admissions to the police when interviewed and voluntarily disclosed details of offending that went beyond what the complainant had told police. He had successfully completed a two‑year sex offender treatment program, demonstrated remorse, shame and insight and regained the support of his wife and church. He was considered to be at a low risk of reoffending. On appeal, the total effective sentence of 15 months' imprisonment was suspended due to what were described as 'the unusual circumstances of this case'. Those unusual circumstances are not present in the case of the appellant.
In JAW, the offender was convicted after trial of eight counts of indecent dealing and five counts of sexual penetration of a child under the age of 13 years. He was sentenced to a total effective sentence of 7 years' imprisonment which was upheld on appeal. Clearly the offending in that case was of a different nature to that of the appellant. The appellant seeks to extract from the total effective sentence in that case sentences imposed for individual counts which are said to be similar to those of the appellant. For reasons that we have earlier stated, that exercise is inappropriate. To suggest that individual sentences of 18 months' imprisonment for indecent dealing in that case are inconsistent with the sentences on counts 1 and 5 fails to take into account the effect which totality considerations may have had upon those individual sentences. In any event, the difference does not amount to an inconsistency.
In HFM, the offender, who was aged 75 when sentenced, was convicted on fast‑track pleas of guilty of 10 counts of sexual offending against a child who was aged between 5 and 12 years old. There were eight counts of indecent dealing and two counts of non‑penile penetration. The child in that case was not a lineal relative; rather, she was the stepdaughter of the offender's son. Again the appellant seeks to extract, from the total effective sentence, individual sentences of 18 months' imprisonment imposed on counts of indecent dealing where the offender rubbed the complainant's vagina, some of which occurred over clothes and some of which did not. For reasons that are earlier stated, that comparison is inappropriate.
The offences in relation to counts 1 and 5 were serious for the reasons stated by the trial judge. There is no basis for suggesting that the sentences imposed were plainly unreasonable or unjust. This ground of appeal has no reasonable prospect of success.
Ground 2 - totality
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 the circumstances of the case, including those referable to the offender personally.
The maximum penalty for each of the offences was 10 years' imprisonment. It is well established that in cases of intrafamilial sexual abuse matters personal to the offender are of less mitigatory weight than might otherwise be the case. Sentencing considerations in such cases focus on the need to protect young, defenceless children from abuse at the hands of those who are in a position of trust and authority over them and who are in a position to conceal their offending. The dominant sentencing considerations are punishment, general deterrence and specific deterrence: Woods v The Queen (1994) 14 WAR 341, 345 ‑ 346 and GHK v The State of Western Australia [2014] WASCA 19; (2014) 238 A Crim R 178 [12]. A sentence of imprisonment to be served is the usual sentencing disposition.
There is no tariff for offences of this type. Sentences imposed in other cases are relevant to ensure broad consistency. However, each case must be determined on its own facts and circumstances.
The appellant did not refer to any comparable cases in respect of this ground. Rather, reliance was simply placed on the facts of the case. They do not suggest that the total effective sentence here was plainly unreasonable or unjust. The offences involved a course of conduct over several years by which the appellant sexually abused his daughter in circumstances where she was clearly vulnerable. He did not plead guilty and there was nothing mitigating in his personal circumstances, other than his lack of a criminal record, which is a matter that carries little weight in cases of this nature: MPD v The State of Western Australia [2008] WASCA 57 [58].
The conduct in HFM bears some similarities to the present case. Whilst it was inappropriate to extract sentences on individual counts in that case for the purpose of comparison, the total effective sentence is more useful. The aggregate sentence in that case was 6 years' imprisonment. That sentence was reduced on appeal to 4 years' imprisonment. There were mitigating factors present in that case that were not present here, including fast‑track pleas of guilty and the advanced age of the offender.
Another case which has some similarities is PNS v The State of Western Australia [2016] WASCA 174. In that case, the offender entered fast‑track pleas of guilty to six sexual offences, including two of indecent dealing with a child and two of making indecent recordings. There were also two offences of possession of child exploitation material. The first indecent dealing charge involved removing clothing from a sleeping 14‑year‑old child and filming whilst pulling apart the child's buttocks. The second such charge involved pressing his fingers into the buttocks of an 8‑year‑old child as he pressed past her in a supermarket.
The total sentence in this case is not inconsistent with sentences imposed in comparable cases and is not disproportionate to the total offending conduct. There is no merit in this ground of appeal.
Conclusion
We would make the following orders:
CACR 19 of 2017 (conviction)
1.Extension of time to appeal refused.
2.Leave to appeal refused.
3.Appeal dismissed
CACR 20 of 2017 (sentence)
1.Extension of time to appeal refused.
2.Leave to appeal refused.
3.Appeal dismissed.
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