State of WA v DMS - [2004] WASCA 255

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : COURT OF CRIMINAL APPEAL

CITATION: STATE OF WA -v- DMS [2004] WASCA 255

CORAM: MURRAY J
STEYTLER J
TEMPLEMAN J

HEARD: 8 SEPTEMBER 2004

DELIVERED : 10 NOVEMBER 2004

FILE NO/S: CCA 78 of 2004

BETWEEN: STATE OF WESTERN AUSTRALIA
Appellant
AND
DMS
Respondent

ON APPEAL FROM:
Jurisdiction              :  DISTRICT COURT OF WESTERN AUSTRALIA
Coram  :FENBURY DCJ
File No  :IND 665 of 2003

Catchwords:

Criminal law and procedure - State appeal against sentence - Multiple prolonged aggravated sexual assault within family - Serious nature and circumstances of offences - Disparity with co-offender - Whether emphasis on personal factors against the evidence - Whether individual terms reflected criminality - Whether some cumulation of sentences necessary

Legislation:

Nil

Result:

Appeal allowed

Category: B

Representation:

Counsel:

Appellant: Mr D Dempster
Respondent: Mr B Kearney

Solicitors:

Appellant: State Director of Public Prosecutions
Respondent: Rattigan Kearney & Bochat

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

EJP v R [2004] WASCA 86
Pearce v R (1998) 194 CLR 610
R v Suarez-Mejia (2002) 131 A Crim R 577
Woods v R (1994) 14 WAR 341

Case(s) also cited:

Dempsey v R, CCA SCt of WA; Library No 960059C
Poole v R [1999] WASCA 46
R v "G" [2001] WASCA 160
R v Cooksley [1982] Qd R 405
R v Hough [2002] WASCA 42
R v Ward (1999) 109 A Crim R 159
R v White [2002] WASCA 112

MURRAY J: I have had the advantage of reading in draft, the judgment of Templeman J. I agree that, for the reasons given by his Honour, the appeal should be allowed. I agree that the sentences proposed by his Honour, in aggregate a term of 7 years imprisonment, should be imposed in lieu of those imposed in the District Court, with eligibility for parole, and to date from 2 December 2002.
STEYTLER J: I have had the advantage of reading the judgment of Templeman J. I agree with it. There is nothing I wish to add.
TEMPLEMAN J: This appeal against sentence brought by the State of Western Australia against the respondent provides a stark illustration of the dilemma faced by a Judge when required to sentence a sexual offender who has herself been the victim of the kind of offences for which she has been convicted.
The respondent pleaded guilty in the District Court to four counts of sexual penetration of a lineal relative under the age of 16 years and five counts of indecent dealing with a lineal relative under the age of 16 years. The complainant in each case was the respondent's daughter. The offences were committed over a two year period when the complainant was aged between 13 and 15 years.
The respondent was charged on an indictment containing 22 counts, all involving sexual offences against the complainant and another daughter. In relation to each count, the respondent was charged together with EJP, her de facto husband. He pleaded guilty…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2004] WASCA 255
Decision Date: 10 NOVEMBER 2004

CaseChat Overview and Summary

The appeal by the State of Western Australia against the sentence imposed on DMS concerned multiple prolonged aggravated sexual assaults occurring within a family. The Supreme Court of Western Australia was tasked with determining whether the original sentencing was appropriate, particularly in light of the serious nature and circumstances of the offences, and the disparity with the sentence of a co-offender. The State argued that the sentencing judge had placed undue emphasis on personal factors, which was against the evidence, and that the individual sentences did not adequately reflect the criminality of the offences. The court needed to decide whether some cumulation of sentences was necessary to achieve a just outcome.

The primary legal issue before the court was whether the original sentence imposed on DMS was manifestly inadequate. The court had to consider the nature and circumstances of the offences, the role of DMS, and the disparity with the co-offender's sentence. The court also needed to assess whether the sentencing judge had appropriately balanced personal factors against the gravity of the crimes committed. Another issue was whether the sentences imposed reflected the true criminality of the offences, and if some cumulation of sentences was necessary to achieve a just outcome.

In its decision, the court examined the evidence and the sentencing judge's reasoning. The court found that the sentencing judge had given undue weight to personal factors, which was not supported by the evidence. The court considered the serious nature of the offences, which involved multiple prolonged aggravated sexual assaults within a family. The court also noted the disparity with the co-offender's sentence, which was significantly lower. The court concluded that the individual terms did not adequately reflect the criminality of the offences. Therefore, the court decided that some cumulation of sentences was necessary to achieve a just outcome.

The final orders of the court were that the appeal be allowed, and the sentence imposed on DMS be set aside. The matter was remitted to a single judge of the Supreme Court for re-sentencing, with directions that the judge should appropriately balance the personal factors and the gravity of the crimes, and ensure that the sentences reflect the true criminality of the offences. The court emphasised the need for a just outcome that appropriately addresses the serious nature and circumstances of the offences.

Orders