SMO v The State of Western Australia
[2022] WASCA 70
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: SMO -v- THE STATE OF WESTERN AUSTRALIA [2022] WASCA 70
CORAM: BUSS P
MAZZA JA
MITCHELL JA
HEARD: 21 MARCH 2022
DELIVERED : 23 JUNE 2022
FILE NO/S: CACR 95 of 2021
BETWEEN: SMO
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram: HERRON DCJ
File Number : IND 1812 of 2019
Catchwords:
Criminal law - Appeal against sentence - Conviction after trial of six counts of historical child sex offending - Total effective sentence of 6 years 6 months' imprisonment - Whether sentencing judge breached first and second limb of totality principle
Legislation:
Criminal Code (WA), s 185 (repealed), s 189 (repealed)
Sentencing Act 1995 (WA), s 10
Result:
Leave to appeal granted on grounds 1 and 2
Appeal dismissed
Category: B
Representation:
Counsel:
| Appellant | : | Mr A O Karstaedt |
| Respondent | : | Mr R G Wilson & Mr S D Packham |
Solicitors:
| Appellant | : | NR Barber Legal |
| Respondent | : | Director of Public Prosecutions (WA) |
Case(s) referred to in decision(s):
Cooper v The State of Western Australia [2020] WASCA 199
FCG v The State of Western Australia [2008] WASCA 47
Gulyas v The State of Western Australia [2007] WASCA 263; (2007) 178 A Crim R 539
HFM v The State of Western Australia [2012] WASCA 217
Hughes v The State of Western Australia [2014] WASCA 78
LFG v The State of Western Australia [2015] WASCA 88; (2015) 48 WAR 178
Mills v The State of Western Australia [No 2] [2017] WASCA 52
R v E, AD [2005] SASC 332; (2005) 93 SASR 20
Roffey v The State of Western Australia [2007] WASCA 246
The State of Western Australia v CGT [2018] WASCA 226
Van Zyl v The State of Western Australia [2017] WASCA 1
JUDGMENT OF THE COURT:
This is an appeal against sentence.
On 15 June 2021 the appellant was convicted after trial of five counts of unlawful and indecent dealing with a girl under the age of 13 years contrary to s 189(2) (repealed) of the Criminal Code (WA) (the Code) (counts 1 to 5) and one count of unlawful carnal knowledge of a girl under the age of 13 years contrary to s 185(1) (repealed) of the Code.
On 16 June 2021 he was sentenced by Herron DCJ as follows:
Count 1 - 12 months' imprisonment.
Count 2 - 15 months' imprisonment.
Count 3 - 18 months' imprisonment.
Count 4 - 13 months' imprisonment.
Count 5 - 16 months' imprisonment;
Count 6 - 5 years' imprisonment.
His Honour ordered that the sentences on counts 3 and 6 be served cumulatively and the other sentences be served concurrently. Thus, the total effective sentence was 6 years 6 months' imprisonment. The appellant was made eligible for parole. The total effective sentence was ordered to commence on 16 June 2021.
The appellant appeals to this court on two grounds which, in substance, allege that the total effective sentence infringed both limbs of the totality principle. No complaint is made about the individual sentences. The grounds of appeal have not been made out. We would grant leave to appeal on each ground. However, the appeal should be dismissed. Our reasons are as follows.
The facts
The facts of the offending are set out in the sentencing remarks.[1] The appellant does not challenge them.
[1] ts 203 - 207.
The offences occurred between 28 July 1980 and 29 July 1981 when the victim, N, was 11 or 12 years of age. The appellant was N's uncle by marriage. He was aged between 34 and 35 years. All of the offences were committed in N's home on occasions when the appellant was a visitor.
Counts 1 and 2 were committed in these circumstances. N was standing by herself near the window in the lounge room. The appellant approached her and put his hand on her left breast and fondled it beneath her top (count 1). He then moved his hand down her leg and touched her vagina, first over her underwear and then beneath it (count 2).
Count 3 occurred about a month later. On this occasion N walked out of the toilet pulling up her underwear. The appellant, who had been standing outside the toilet, rubbed the inside of her vagina while her underpants were still halfway up. He then walked away.
Counts 4, 5 and 6 occurred on N's 12th birthday in 1981. A special dinner had been prepared by N's parents to celebrate the occasion, which coincided with the wedding of Prince Charles and Lady Diana Spencer. After N's routine evening shower, she put on her pyjama bottoms and finished dressing as she walked into her bedroom. The appellant entered the bedroom and said, 'Haven't you grown'. He then touched her breasts under her top for a short period (count 4) following which he took his penis out of his pants, pulled down her pyjama bottoms and made N touch his penis with her hand by guiding her hand with his hand (count 5). N withdrew her hand. The appellant then pulled her towards him while he was sitting on her bed. He sat N on his erect penis so that it penetrated her vagina (count 6). N found the penetration painful and reacted by making a sound of some description. The appellant pushed her off him. N put her clothes back on. As the appellant left the bedroom he said to N, 'This is just between you and I'. All of this offending occurred over a few minutes.
After the incident, the appellant returned to the family room. Shortly afterwards he and his wife left N's house. As the appellant was being shown out of the house N's mother heard N crying. She observed N in a state of extreme distress. N was sobbing, crying and vomiting.
The victim impact statement
The sentencing judge was provided with a victim impact statement.[2] His Honour observed that it was clear that the appellant's offending had affected N's relationships with her family, extended family, partners and friends. His Honour noted that N's mental and physical health had been severely impacted. N had suffered severe mental health issues, the consequences of which led to physical illness. Throughout her adult life, N has had difficulty trusting people. She continues to receive psychological and psychiatric help some 40 to 41 years after the offending.
The appellant's personal circumstances[3]
[2] ts 207 - 208.
[3] ts 207 - 208.
The appellant was 75 years of age at the time he was sentenced. He was born in the United Kingdom and emigrated to Australia when he was 21 years of age, having already completed an apprenticeship as a chef. He was married to N's aunt until 2004. The appellant has one adult child from that relationship and two grandchildren.
The appellant worked as a catering manager for an international company, but is now retired and lives alone.
The appellant is in what his Honour described as 'poor physical health', the details of which are set out below.
The appellant has no prior criminal or road traffic history.
Evidence as to the appellant's health[4]
[4] WB 60 - 64; ts 208.
The sentencing judge was provided with the following information in respect of the appellant's health:
(a)a report written by the appellant's general practitioner, Dr Albert Quo, dated 12 April 2021;
(b)a letter written by Dr Benjamin Levy, an orthopaedic registrar at the Fremantle Hospital and Health Service, addressed to Dr Quo, dated 21 January 2020; and
(c)a report written by Dr Thornton Abbott of the Perth Radiological Clinic, dated 14 September 2018.
Dr Quo's report, in substance, summarises the appellant's past medical history. Among the conditions noted by Dr Quo are mild renal impairment, osteoarthritis of the lumbar spine and bilateral shoulder osteoarthritis. Perhaps the most significant conditions suffered by the appellant as noted by Dr Quo are carotid artery disease and prostate cancer. In respect of the appellant's carotid artery disease, Dr Quo noted, 'PRC: no significant flow obstruction', and, in respect of the appellant's prostate cancer, 'Gleason 6 on [biopsy]. Monitoring only. RPH. Refer if PSA reaches 20'.
Dr Levy diagnosed the appellant as suffering a bilateral shoulder cuff tear arthropathy. Dr Levy noted that the appellant did not wish to proceed with surgical intervention 'largely because he is still quite active, especially in relation to caring for his grandchildren'. Dr Levy expressed his treatment plan as, 'Continued conservative management and review in 12 months' time'.
Dr Abbott reported that the appellant complained of 'bilateral shoulder pain and loss of range of motion'. Ultrasound and x‑ray examinations revealed tendon tears in each shoulder.
The sentencing remarks[5]
[5] ts 205 - 210.
His Honour found that the offending the subject of counts 1 to 3 involved brief touching of N's breast and vagina. As a result of the commission of these offences, his Honour said that the appellant was emboldened to offend again in the way that he did in counts 4 to 6. His Honour described this offending as culminating in the brief but clearly traumatic penetration of N's vagina with his penis on her 12th birthday, which caused her pain.
His Honour noted that the offending the subject of counts 4 to 6, and particularly count 6, caused N immediate physical and mental distress. His Honour accepted that the offending has left N with severe mental health issues.
The sentencing judge found that, by virtue of the appellant's relationship with N as her uncle by marriage, the offending involved a gross abuse of trust. His Honour observed that the offending occurred in N's family home, when family members were nearby, in an environment in which she was entitled to feel safe.
His Honour also observed that the offending against N was repeated and involved a degree of persistence. His Honour acknowledged the appellant's 'relatively advanced age' and his poor general health. He found that the appellant's age and ill health meant that imprisonment would be more onerous for him than for a younger person in good health. His Honour also acknowledged that the appellant had no prior criminal or road traffic record and had led a law-abiding life. However, bearing in mind the nature of the offending and when it occurred 40 to 41 years ago, it could not be said that the appellant was a person of good character.
His Honour said that because of the appellant's advanced age and poor health he accepted that personal deterrence was a matter of limited relevance, although general deterrence was 'one of the most important sentencing factors I need to take into account'. His Honour said that, because of the need to provide general deterrence, matters personal to the appellant, although not irrelevant, assume less weight than might otherwise be the case.
After indicating the appropriate individual sentences for the counts, his Honour considered the application of both limbs of the totality principle. His Honour said that the appropriate total effective sentence was 6 years 6 months' imprisonment. He achieved this outcome by ordering that the sentences on counts 3 and 6 be served cumulatively and the other sentences be served concurrently.
The appellant's submissions[6]
[6] WB 7 - 18.
The appellant submitted that the total effective sentence infringed both limbs of the totality principle.
As to the first limb, while acknowledging that the offences committed by the appellant were very serious, it was submitted on his behalf that there were aspects which differentiated his offending from some of the more serious instances of offending of its type including:
(1)the counts were not representative charges and were committed in three separate incidents;
(2)the offending was opportunistic and not planned;
(3)count 6 involved penetration of N's vagina which was short in duration and the other offending was also of short duration;
(4)N was not a lineal relative or a de facto child;
(5)the offending did not involve violence or aggression;
(6)the offending occurred 'over a relatively confined period'; and
(7)the offending involved a single victim and fewer incidents of offending when compared to other cases.
The appellant submitted that while general deterrence was the primary sentencing consideration, by virtue of his advanced age and ill health, personal deterrence and the protection of the public were not important sentencing considerations.
The appellant's sentencing submissions noted the discussion of comparable cases in The State of Western Australia v CGT.[7] Of the cases referred in CGT it was submitted that the outcomes in Mills v The State of Western Australia [No 2],[8] Hughes v The State of Western Australia,[9] FCG v The State of Western Australia[10] and HFM v The State of Western Australia,[11] all of which involved offenders who at the time of sentence were of advanced age, indicate the total effective sentence in the present case infringed the totality principle.
[7] The State of Western Australia v CGT [2018] WASCA 226 [51] - [75].
[8] Mills v The State of Western Australia [No 2] [2017] WASCA 52.
[9] Hughes v The State of Western Australia [2014] WASCA 78.
[10] FCG v The State of Western Australia [2008] WASCA 47; (2008) 183 A Crim R 313.
[11] HFM v The State of Western Australia [2012] WASCA 217.
With respect to the second limb of the totality principle, the appellant submitted that at the time of his earliest release date he would be 80 years of age and in poor health. It was asserted that there would be at that time no reasonable expectation of a useful life after his release from custody. It was further submitted, in effect, that the offences committed by the appellant were not in the category of case which was so serious that the considerations of mercy which underpin the second limb of the totality principle did not apply.
The respondent's submissions[12]
[12] WB 22 - 34.
On behalf of the respondent, it was submitted that although the total effective sentence was 'perhaps at the higher end of the available sentencing [range]', having regard to the aggravating factors the total effective sentence did not infringe either limb of the totality principle.
The respondent emphasised the serious features of the offending, including that:
(1)All the offending took place in the victim's house where she was entitled to feel and be safe.
(2)After the appellant committed counts 1 to 3 and was not caught he was emboldened to again offend by committing counts 4 to 6 which involved a greater degree of seriousness.
(3)After committing count 6, the appellant impressed secrecy upon his victim by telling her as he left her bedroom 'this is just between you and I'. This added to the trauma and distress N experienced such that she was fearful to tell her parents what had happened.
(4)There was a significant age disparity between the appellant and the victim.
(5)The offending was repeated and involved a degree of persistence.
With respect to the cases relied upon by the appellant, the respondent submitted that none of them demonstrated that the total effective sentence imposed upon the appellant was erroneous and that a review of other authorities referred to in CGT, but not referred to in the appellant's submissions, showed that the total effective sentence was broadly consistent with the relevant comparable cases.
As to the second limb of the totality principle, it was submitted that the total effective sentence was not crushing. Furthermore, there was no evidence to support the assertion made on behalf of the appellant that the total effective sentence would destroy any reasonable expectation of a useful life after release.
General appellate principles
The general principles applicable to appeals of the type brought by the appellant in this case are well established and have been described in many cases decided by this court. It is enough to say that this court may only intervene when material error is established. It is not enough that this court disagrees with the sentence actually imposed. Where, as in this case, the appellant relies upon implied error, it must be demonstrated, after a consideration of all of the relevant facts and circumstances, that the outcome was unreasonable or plainly unjust.
The totality principle comprises two limbs. A generally accepted statement of the totality principle was made by McLure JA in Roffey v The State of Western Australia:[13]
The appellant relies on the totality principle which comprises two limbs. The first limb is that the total effective sentence must bear a proper relationship to the overall criminality involved in all the offences, viewed in their entirety and having regard to the circumstances of the case, including those referable to the offender personally: Woods v The Queen (1994) 14 WAR 341.
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: Martino v The State of Western Australia [2006] WASCA 78 [16]. An aggregate sentence may be inappropriately long under the first limb even if it cannot be described as crushing: Jarvis v The Queen (1998) 20 WAR 201, 216 (Anderson J).
The practical effect of the totality principle is ordinarily to arrive at an aggregate sentence that is less than that which would be arrived at by simply adding up all the terms appropriate for the individual offences: R v Holder [1983] 3 NSWLR 245, 260 (Street CJ). A rationale for the totality principle is that there is assumed rehabilitation and reduced demand for retribution after the initial sentences have been served. Where the principle of totality comes into effect, it is of little importance how the ultimate aggregate is made up: R v Holder (260).
[13] Roffey v The State of Western Australia [2007] WASCA 246 [24] - [26].
As this court observed in Van Zyl v The State of Western Australia,[14] it is unusual, as a matter of fact for a total effective sentence to be reduced on appeal because it infringed the second limb of the totality principle. This said, the second limb has been invoked in cases where an offender is of advanced age, the rationale being that each year of a sentence represents a substantial proportion of the period of life which is left to an offender of advanced age. The concept underpinning this rationale is essentially mercy.
[14] Van Zyl v The State of Western Australia [2017] WASCA 1 [21].
The effect of advanced age in sentencing was analysed by Steytler P (with whom McLure & Miller JJA agreed) in Gulyas v The State of Western Australia.[15] It is unnecessary to repeat this analysis. We note that advanced age is only one of the factors to be taken into account in order to arrive at a just sentence. Whether, and if so, to what extent, lenience should be given to an offender of advanced age depends on all the facts and circumstances of the particular case. An offence may be so serious that humanitarian considerations cannot be accommodated.[16]
[15] Gulyas v The State of Western Australia [2007] WASCA 263; (2007) 178 A Crim R 539 [33] - [54].
[16] See Van Zyl [22] and Cooper v The State of Western Australia [2020] WASCA 199 [168].
Sentencing principles for sexual offences against children
It is well established that in sentencing offenders who have committed sexual offences against children the primary sentencing considerations are the imposition of appropriate punishment having regard to personal and general deterrence and the need to protect vulnerable children.[17]
[17] See LFG v The State of Western Australia [2015] WASCA 88; (2015) 48 WAR 178 [395].
There is no tariff for offences of the kind committed by the appellant, nor indeed for sex offences generally, because of the great variation that is possible in the circumstances of the offending and the offenders. This is not to say that comparable cases are irrelevant. Comparable cases provide guidance as to the application of relevant sentencing principles and are a yardstick against which the sentence under consideration may be compared in order to ensure broad consistency of sentences. However, the range of sentences imposed in previous cases does not fix the range of an appropriate exercise of the sentencing discretion in any particular case. Ultimately, what is important is that each case is decided upon its own facts and circumstances.[18]
[18] Van Zyl [25].
Disposition
We will deal first with the appellant's contention that the total effective sentence infringed the first limb of the totality principle. The maximum penalty for an offence contrary to s 189(2) (repealed) of the Code was 7 years' imprisonment and for an offence contrary to s 185(1) (repealed) of the Code was 20 years' imprisonment.[19]
[19] At the time of the commission of count 6, 29 July 1981, the maximum penalty for an offence contrary to s 185(1) (repealed) of the Code was life imprisonment. However, the maximum penalty was amended as a result of s 8 of the Law Reform (Decriminalization of Sodomy) Act 1989 (WA) to 20 years' imprisonment. By operation of s 10 of the Sentencing Act, the appellant was liable as at the date of the sentence to the lesser maximum penalty being 20 years' imprisonment.
The appellant's overall offending was plainly serious. The appellant was a trusted figure in N's life. The offending involved a gross abuse of that trust. The offending was not isolated but occurred in three separate incidents over a period of approximately one year. It appears that the appellant was emboldened by N's (understandable having regard to her age) failure to complain about the appellant's earlier conduct to commit counts 4 to 6. The offending occurred in N's own home with family members nearby. It is obvious that the appellant felt some sexual attraction to N and acted upon that attraction for his gratification without any regard to N's wellbeing. He sought to secure N's silence in respect of counts 4 to 6 by telling her 'this is just between you and I'. It may be inferred from this that the appellant knew what he had done was morally reprehensible. There is a degree of callousness about the appellant committing serious sexual offences on the occasion of the victim's 12th birthday.
A significant aggravating feature of this case is the adverse impact that the offending has had on the victim. N immediately experienced pain as a result of the appellant's penetration of her vagina with his penis. She was also greatly distressed to the point where, shortly after the commission of counts 4 to 6, she was sobbing, crying and physically ill. The offending has had a lifelong effect upon her. N continues to receive psychological and psychiatric help as a result of the offending. While the appellant has led an apparently normal and satisfying life up until his conviction for the offences, N has had to deal with decades of suffering. The matters relied upon by the appellant and summarised in [28] above do not detract from the fact that the appellant's overall offending against N involved significant criminality on his part.
We have had regard to the outcome in The State of Western Australia v CGT and to the cases analysed therein. Having regard to the differences in those cases when compared with the present case, they are of limited utility. Accordingly, it is unnecessary to engage in a detailed analysis of those cases. It is enough to say that in our opinion the total effective sentence imposed in the present case is broadly consistent with the outcomes in other cases and that a consideration of those cases does not point to implied error on the part of the sentencing judge.
The primary mitigating factors are the appellant's advanced age and his ill health. Although the appellant did not have the mitigation that pleas of guilty would have provided nor can it be said that he is genuinely remorseful for what he did, it must be acknowledged, as his Honour did, that the appellant has not offended since the commission of these offences and that personal deterrence is not a significant sentencing consideration. Further, as his Honour found, the appellant is of advanced age, in poor health and will find prison more onerous as a consequence. We will say more about the appellant's health when we deal with the appellant's claim that the total effective sentence infringes the second limb of the totality principle below, but it is sufficient for us to observe that there was no evidence before the sentencing judge and no argument was put to him to the effect that the various conditions from which the appellant suffered could not be adequately treated within the prison system.
As we observed earlier, the appellant does not challenge any of the individual sentences that were imposed upon him. In particular, he does not challenge the term of 5 years' imprisonment imposed in respect of count 6.
The real issue here is whether and to what extent accumulation with the sentence on count 6 was appropriate. In our opinion, having regard to the two separate and earlier incidents of sexual offending which were the subject of counts 1 to 3, some accumulation of the sentences imposed by his Honour for those offences was appropriate. The offending the subject of count 3 was serious offending involving as it did the touching of N's vagina after she had gone to the toilet and was pulling up her underwear. In doing so, the appellant took advantage of her obvious vulnerability. Separate and additional punishment over and above the sentence the subject of count 6 was well justified.
We are not persuaded that the total effective sentence imposed upon the appellant of 6 years 6 months' imprisonment infringed the first limb of the totality principle. In our opinion, 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 relevant facts and circumstances including those referrable to the appellant personally (including, most importantly, his age and ill health), all relevant sentencing factors and the total effective sentences imposed in the comparable cases referred to by the parties.
We now turn to the question of whether the total effective sentence infringed the second limb of the totality principle. Of course, to conclude that the total effective sentence did not infringe the first limb of the totality principle does not preclude a finding that it infringed the second limb. However, in our opinion it has not been demonstrated that the total effective sentence infringed the second limb.
The medical evidence that was provided to the sentencing judge did not address the question of whether the conditions referred to would have any adverse effect upon the appellant's life expectancy and, if so, its extent. The principal health problems highlighted in the sentencing proceedings were the appellant's carotid artery disease and his prostate cancer. The former condition did not give rise to significant flow obstruction, the latter was being monitored. The medical report prepared by the appellant's general practitioner does not state, nor can it be inferred, that either or both conditions will reduce the appellant's life expectancy.
In oral submissions, counsel for the appellant, Mr Karstaedt, noted that the respondent had accepted that the total effective sentence imposed upon the appellant was 'at the higher end of the sentencing discretion'.[20] He submitted that this being so, as a matter of logic, there had to be an infringement of the second limb of the totality principle.[21] We understand Mr Karstaedt's argument to assert that where the second limb of the totality principle comes into play, the range of sentences that a judge might impose should be in the low to mid‑range and not towards the high end of the range.[22] We do not accept this submission, which finds no support in principle or precedent.
[20] Appeal ts 5, referring to respondent's submissions pars 20, 21, 27; WB 29 - 31.
[21] Appeal ts 5.
[22] Appeal ts 7.
Where the second limb of the totality principle is sought to be invoked, the question is whether the total effective sentence is 'crushing' as that expression is understood. The evaluation of whether a sentence is 'crushing' is not answered by where in the discretionary range properly open to a sentencer the sentence in question should be characterised. Ultimately, it is for this court to evaluate whether a sentence is 'crushing' having regard to all of the circumstances of the case.
In R v E, AD,[23] Doyle CJ observed that care must be taken in using the concept of a crushing sentence. He observed, correctly in our view:
Not uncommonly, for particularly serious crimes, a sentence that is crushing in its effect must be imposed. The use of that term does not imply that when a very heavy sentence is called for, it is appropriate for the court to reduce it simply because to the offender the sentence may be crushing. At the end of the day if that is what is called for, that is the sentence that must be imposed.
[23] R v E, AD [2005] SASC 332; (2005) 93 SASR 20 [38].
The appellant will be approximately 80 years of age when he is first eligible for release on parole. Notwithstanding this, we have not been persuaded that the sentence of 6 years 6 months' imprisonment was crushing in the sense that it would destroy any reasonable expectation of a useful life after release. Moreover, we would not, having regard to the seriousness of the appellant's offending, reduce the total effective sentence imposed by his Honour in the exercise of mercy.
For the above reasons, neither ground of appeal has been made out.
Conclusion and orders
While we would grant leave to appeal on grounds 1 and 2, the grounds have not been made out and the appeal must be dismissed. The orders that we would make are as follows:
1.Leave to appeal is granted on grounds 1 and 2.
2.The appeal is dismissed.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
RK
Research Associate to the Honourable Justice Murphy and the Honourable Justice Mazza
23 JUNE 2022
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