State of Western Australia v JPR
[2004] WASCA 183
•18 AUGUST 2004
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : COURT OF CRIMINAL APPEAL
CITATION: STATE OF WESTERN AUSTRALIA -v- JPR [2004] WASCA 183
CORAM: MURRAY J
MCLURE J
JENKINS J
HEARD: 1 JUNE 2004
DELIVERED : 1 JUNE 2004
PUBLISHED : 18 AUGUST 2004
FILE NO/S: CCA 17 of 2004
BETWEEN: STATE OF WESTERN AUSTRALIA
Appellant
AND
JPR
Respondent
ON APPEAL FROM:
Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA
Coram :TEMPLEMAN J
File Number : INS 76 of 2002 & INS 212 of 2002
Catchwords:
Criminal law and procedure - Sentencing - Sexual offences against child - Evaluation of seriousness of offences - Purposes of punishment - Whether ill health of offender provided significant mitigation - Sentences imposed cumulatively on previous terms - Application of totality principle - Sentences manifestly inadequate
Legislation:
Nil
Result:
Appeal allowed
Sentences quashed
Sentences of 2 years and 8 months imposed concurrently but cumulatively upon previous terms
Category: B
Representation:
Counsel:
Appellant: Mr K M Tavener & Mr T P L Scutt
Respondent: Ms S S Chelvanayagam
Solicitors:
Appellant: State Director of Public Prosecutions
Respondent: George Giudice
Case(s) referred to in judgment(s):
Bell v The Queen [2001] WASCA 40
Bosworth v The Queen [2004] WASCA 43
R v Chilvers [2003] WASCA 87
R v Herbert [2003] WASCA 27
R v Suarez‑Mejia [2002] WASCA 187
Woods v The Queen (1994) 14 WAR 341
Case(s) also cited:
Bishop v The Queen [2003] WASCA 79
D v The Queen [2003] WASCA 33
Dixon v Scott [2002] WASCA 280
Griffiths v The Queen (1977) 137 CLR 293
Lowndes v The Queen (1999) 195 CLR 665
R v Catts (1996) 85 A Crim R 171
R v Cumberbatch [2004] VSCA 37
R v Leggett [2000] WASCA 327
Smith v The Queen, unreported; SCt of WA; Library No 940285; 2 May 1994
JUDGMENT OF THE COURT: This was a State appeal against sentence. We therefore had regard to the special approach the Court will take to such cases, which should rarely come before the Court. Such appeals should be concerned to amend errors of law, to redress idiosyncratic decisions of sentencing Judges, to maintain proper standards of sentencing and ensure uniformity. Such appeals may succeed where it is necessary for the Court to lay down applicable principles governing the exercise of sentencing discretion generally, or in particular types of cases. Finally, such appeals may be directed towards correcting manifest inadequacy in sentence. This, we thought, was a case of the last‑mentioned type.
The Court, in dealing with appeals by the State against sentence, will bear firmly in mind that there is an element of double jeopardy inherent in such appeals. The offender's liability to punishment is placed in issue for a second time. The Court will therefore hesitate long before allowing such an appeal and where it does feel impelled to intervene it will do so by the imposition of a sentence which is as lenient as is reasonably supportable. The principles involved were recently conveniently collected by Parker J, with whom Murray and Miller JJ agreed, in R v Suarez‑Mejia [2002] WASCA 187, at [64] – [67].
The respondent first came before the Court to be sentenced upon his conviction after trial of three offences, all committed upon the one complainant, a child who was a member of the respondent's household. The respondent was effectively in the position of her father, although she was formally in the care of the respondent's de facto wife.
The three offences were an offence of indecent dealing with the child, then under the age of 13 years, committed between 13 April 1969 and 15 April 1971, an offence of unlawful carnal knowledge of the child, then under the age of 13 years, committed between 1 January 1971 and 15 April 1973, and a second offence of indecent dealing with the child, then under the age of 14 years, committed between 1 January 1977 and 15 April 1979.
For those offences, on 23 January 2004, the respondent was sentenced by Miller J to 2 years imprisonment concurrent for the two offences of indecent dealing and 3 years 4 months imprisonment cumulative for the offence of unlawful carnal knowledge. That resulted in an aggregate term of 5 years and 4 months. A parole eligibility order was made. The sentences were to date from 27 November 2003.
Very shortly after that, the respondent was again presented for trial by jury and he was convicted of two further offences, again committed against the same complainant, but a different person from the complainant in the first three offences of which the respondent was convicted. The offences of which he was convicted on this occasion were both offences of unlawful carnal knowledge. They were committed between 1 July 1979 and 31 December 1979, and between 1 July 1979 and 30 June 1980. The complainant was then aged about 10 years.
As those offences were then defined by the Criminal Code (WA), s 185, they were punishable by 20 years imprisonment. They remain so today under the Code, s 320(2). Although the offences charged were within the jurisdiction of the District Court, the indictments were presented in this Court, and on the second occasion the trial Judge was Templeman J.
His Honour passed sentence on 30 January 2004, a week after the respondent had been sentenced by Miller J, and so over 24 years after the offences had been committed. His Honour imposed two sentences of imprisonment for 1 year, to be served concurrently, but cumulatively upon the terms imposed by Miller J, again with parole eligibility. Under the Sentencing Act1995 (WA), s 94(4), the terms imposed were to be aggregated with those imposed by Miller J for the purpose of determining eligibility for release on parole. The aggregate term was therefore one of 6 years and 4 months imprisonment from 27 November 2003, resulting in a non‑parole period of 4 years and 4 months imprisonment.
We concluded that the terms of imprisonment for 1 year were manifestly inadequate and we therefore allowed the appeal against those sentences, quashed them, and in lieu thereof imposed sentences of 2 years and 8 months imprisonment. We did not interfere with their concurrency or with the order that those terms be served cumulatively upon those previously imposed by Miller J; nor did we vary the order of eligibility for parole. In the result, therefore, we substituted an effective aggregate term of 8 years imprisonment, resulting in a non‑parole period of 6 years. Our reasons follow.
As Templeman J found, the total offending took place over a period of in excess of 10 years. The offences for which his Honour was to pass sentence effectively followed on after the cessation of the offences against the first complainant, which ceased when she was able to leave home. This complainant also was a young girl of about 10 years of age, one of a number in the care of the respondent and his partner. His Honour described the complainant as the respondent's foster daughter and said that he appreciated that that made serious offences even more serious.
His Honour accepted that, apart from the two offences of which the respondent was convicted, there were other similar sexual offences committed against the complainant. They were representative of a course of conduct and Templeman J noted that the complainant's evidence was that the commission of the offences was aided by violence by the respondent which caused the complainant to submit to his sexual advances in fear. There was a victim impact statement before his Honour which revealed the grave harm sustained by the complainant as a result of the commission of the offences.
His Honour found that the respondent exhibited no remorse. A pre‑sentence report and associated psychological report placed before the Court revealed that the respondent tended to minimise the seriousness of his behaviour, leading his Honour to conclude that, "although you are now sorry, I think your sorrow stems more from the predicament in which you find yourself than from remorse for your conduct, which you appear not to have regarded as inappropriate at the time".
Turning to matters personal to the respondent, Templeman J observed that he was aged 61 years and, apart from these offences, he had no significant previous convictions. Such record as he had was itself old and in the over 24 years which had elapsed he had not been before a court. He was aged 37 years when he committed the offences against this complainant. The respondent provided numerous references from persons in his local community who testified to the value of his participation in the life of his community, of which he was regarded as a valuable member.
The respondent has major health problems. The information before Templeman J in that regard was the same as that presented to Miller J. The most valuable report was that dated 26 June 2003 by the respondent's general practitioner, who reported that he has ischaemic heart disease with obstruction of a coronary artery. This problem was being managed by medication. He has a recurrent small bowel obstruction for which, on one occasion, he had surgery. He suffers from diabetes and hypertension, both of which conditions are again controlled by medication. His doctor concluded by advising that, "his medical problems are major and his prognosis is poor."
Templeman J noted what Miller J had to say about that evidence:
"You do have a number of health problems. They include diabetes and angina and, as one of the doctors has said in his report, you are not a well man. I accept that in every respect. However, although your counsel has suggested that if sentenced to a long term of imprisonment you are likely to die in gaol, there is no evidence to suggest that is so. I simply conclude from the medical reports that you are unwell, you have a lot of health problems, but they are being controlled by medication and treatment in prison, where the service available to you is excellent."
There is a convenient discussion of the principles generally governing sentences to be imposed in respect of offences which are manifestations of child abuse within a family or closed community in Bosworth v The Queen [2004] WASCA 43, per Malcolm CJ, with whom Scott and McKechnie JJ agreed, at [23] – [24]. That case draws upon the collection of the principles, distilled from a number of earlier authorities, by McKechnie J in R v Chilvers [2003] WASCA 87 at [25] – [26]. We need not set out that material, but attention should be focused upon one matter, the age of these offences.
In Bell v The Queen [2001] WASCA 40, Anderson J, with whom Kennedy J and Stein AJ agreed, at [4] – [7] discussed the impact of the fact that the offences were "stale" upon the sentences to be imposed. His Honour made the point that the sentencing objective of personal deterrence is diminished in significance in cases of this kind where many years have elapsed since the last offence. Additionally, he noted that in such cases the court may be able to conclude that rehabilitation has already taken place. However we note that in this case the sentencing Judge found that he was unable to accept that the respondent was remorseful for his offending. Lack of remorse or, in other words, a feeling of regret for one's offending behaviour, is in our view one of the first steps towards rehabilitation.
Anderson J in Bell discussed the approaches of different courts to the sentencing of offenders for "stale" offences. He concluded at [8] that although it was not easy to reconcile the cases, it is reasonably clear that "delay will attract a significant discount only where the sentencing court concludes that there has been real progress towards rehabilitation as such or where other favourable factors have positively emerged in the time between the offences and the passing of sentence".
Where, as in this case, there is an absence of remorse and only the passing of time without conviction there is no justification on the basis of delay between offending and sentence to significantly reduce what would otherwise be appropriate sentences. The sentences imposed must still meet the objectives of appropriate denunciation of the seriousness of the offending and punishment for what has been done. By that means the courts seek to achieve general deterrence and a degree of protection for vulnerable children.
As Anderson J said in Bell, at [12]:
"The point is that in cases of intra‑familial sexual abuse, the offending often goes undetected for a long time, the offender will often be a person who has led an otherwise blameless life, will often be of no danger to anyone except children in the family and will usually be most unlikely to reoffend once the offending in question is disclosed, or the opportunity to commit offences against the particular complainant has gone. Because these are common features in cases of this kind, they are not of much mitigatory weight. Other sentencing considerations overwhelm them. Sentencing objectives in this kind of case focus on the need to protect young, defenceless children from abuse at the hands of adults who are in a position of trust and authority over them in the family setting and who are in a position to conceal their offending."
In our opinion, those observations are apposite in this case.
Here the major features of the offences committed are those identified in the first particular of the appellant's ground of appeal. The complainant was very young. She and the respondent were in the position of being child and foster parent. The breach of trust involved in the commission of the offences is manifest. The respondent used his position, the disparity in age between him and the child, and an element of violent behaviour, to achieve his way with her. The offending was repeated on a number of occasions beyond the two offences of which the respondent was convicted, although, of course, as his Honour observed, the respondent was not to be sentenced more severely on account of any other uncharged offences. The complainant suffered very serious, possibly permanent, damage psychologically and to her personal relationships as an adult. The respondent displayed no remorse, but only self‑pity.
Against that, there was little by way of significant mitigation. Certainly the respondent had no relevant previous convictions and he was highly regarded in his local community, in which he had participated well for a great number of years. He had an accepted record of community service and the offences were very old by the time the respondent came to be sentenced. His medical problems were not without significance, but the appropriate conclusion was that, although they were serious, there was no suggestion that they could not be managed effectively in prison; nor was there any suggestion that imprisonment would exacerbate the severity of those problems.
The dominant considerations for sentencing purposes remained the need to impose sentences which provided properly proportionate punishment and effectively promoted the principle of general deterrence for the purpose of achieving a degree of protection for children in the position of this complainant. Such power as the identified matters of mitigation had was not to be overlooked, but their force was relatively slight: Woods v The Queen (1994) 14 WAR 341, 349‑59.
The sentencing Judge gave considerable weight to the totality principle, saying that had it not been for the sentences imposed by Miller J, his Honour would himself have imposed sentences of that order. We agree that the operation of that principle was not to be overlooked, but its proper application is part of the process of fixing a punishment proportionate to the overall criminality of the offender's conduct, including that for which he was punished by Miller J. The totality principle reflects the proposition that the greater the aggregate term of imprisonment is, whether it is made up of sentences imposed by one judge on one occasion or more than one judge on different occasions, the more severe the punishment is to be regarded: R v Herbert [2003] WASCA 27. In this case, in our opinion, the application of that principle did not justify the reduction of the terms to the sentences imposed by his Honour.
It was for these reasons that we quashed those sentences and substituted the greater terms to which we have referred. They in their turn were imposed having regard to the restraint attendant upon resentencing on an appeal by the State, considerations of totality, and having regard to the substantial amendment to the sentencing regime inherent in recent amendments to the Sentencing Act and the transitional provisions applicable thereto.
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