Steele v The State of Western Australia
[2018] WASCA 133
•3 AUGUST 2018
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: STEELE -v- THE STATE OF WESTERN AUSTRALIA [2018] WASCA 133
CORAM: MAZZA JA
MITCHELL JA
BEECH JA
HEARD: 13 JUNE 2018
DELIVERED : 3 AUGUST 2018
FILE NO/S: CACR 152 of 2017
BETWEEN: WILLIAM EDWIN STEELE
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
FILE NO/S: CACR 153 of 2017
BETWEEN: WILLIAM EDWIN STEELE
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram: EATON DCJ
BIRMINGHAM DCJ
File Number : IND 622 of 2016
Catchwords:
Criminal Law - Appeal against conviction - Historical sexual offences - Indecent assault - Whether there was a miscarriage of justice when the primary judge failed to order a trial by judge alone
Criminal Law - Appeal against sentence - Historical sexual offences - Indecent assault - Victims were boys known to the appellant aged between 11 and 18 years - Whether sentencing judge erred by taking account of the prevalence of the offences and the heightened need to protect the community from the commission of such offences - Whether the total effective sentence infringed the first limb of the totality principle - Whether individual sentences imposed were manifestly excessive
Legislation:
Nil
Result:
Appeal against conviction dismissed
Appeal against sentence allowed in relation to counts 4, 5 and 7
Appellant re-sentenced to a total effective sentence of 3 years 6 months' immediate imprisonment
Category: B
Representation:
CACR 152 of 2017
Counsel:
| Appellant | : | Mr TF Percy QC and Mr CM Townsend |
| Respondent | : | Mr RG Wilson |
Solicitors:
| Appellant | : | Lewis Blyth & Hooper (Gosnells) |
| Respondent | : | The Director of Public Prosecutions for the State of Western Australia |
CACR 153 of 2017
Counsel:
| Appellant | : | Mr TF Percy QC and Mr CM Townsend |
| Respondent | : | Mr RG Wilson |
Solicitors:
| Appellant | : | Lewis Blyth & Hooper (Gosnells) |
| Respondent | : | The Director of Public Prosecutions for the State of Western Australia |
Case(s) referred to in decision(s):
Arthurs v The State of Western Australia [2007] WASC 182
House v The King (1936) 55 CLR 499
Huggins v The State of Western Australia [2018] WASCA 61
LFG v The State of Western Australia [2015] WASCA 88; (2015) 48 WAR 178
Powell v Tickner [2010] WASCA 224
R v Peterson [1984] WAR 329
Salkilld v The State of Western Australia [2017] WASCA 168
YDN v The State of Western Australia [2018] WASCA 62
JUDGMENT OF THE COURT:
Summary
The appellant was convicted after trial of the following 8 counts of sexual offences against boys aged between 11 and 18 years, for which he was sentenced to a total effective sentence of 3 years 6 months' immediate imprisonment.
| Count | Date of offence | Offence | Max Penalty | Penalty |
| Complainant: RF (aged approximately 11) | ||||
| 1 | Unknown b/n 30/6/63 and 1/1/64 | Code s 183: Indecent dealing with a child under 14 years Placing hand of complainant onto appellant's penis | 7 years' imprisonment | 1 year Concurrent |
| 2 | Unknown b/n 30/6/63 and 1/1/64 | Code s 183: Indecent dealing with a child under 14 years Introducing appellant's penis into complainant's mouth | 7 years' imprisonment | 2 years Cumulative |
| Complainant: GF (aged 15) | ||||
| 3 | 25/8/80 | Code s 184: Attempted procuring of an act of gross indecently with a male in private Attempted procurement of complainant to suck the appellant's penis | 3 years' imprisonment | 6 months Concurrent |
| Complainant: PM (aged 17 - 18) | ||||
| 4 | Unknown b/n 31/8/83 and 31/3/84 | Code s 315: Indecent assault on a male Kissing male complainant on lips | 3 years' imprisonment | 1 year Cumulative |
| 5 | Unknown b/n 31/8/83 and 31/3/84 | Code s 315: Indecent assault on a male Kissing male complainant on lips | 3 years' imprisonment | 1 year Concurrent |
| Complainant: MB (aged 18) | ||||
| 6 | Unknown b/n 1/2/85 and 1/4/85 | Code s 315: Indecent assault on a male Holding male complainant's testicles | 3 years' imprisonment | 1 year Concurrent |
| Complainant: GM (aged 16) | ||||
| 7 | Unknown b/n 19/12/89 and 9/1/90 | Code s 324B: Indecent assault Kissing complainant on lips | 4 years' imprisonment | 1 year Concurrent |
| 8 | Unknown b/n 19/12/89 and 9/1/90 | Code s 324B: Indecent assault Rubbing the groin of complainant | 4 years' imprisonment | 6 months Cumulative[1] |
Total effective sentence: | 3 years 6 months' imprisonment | |||
[1] Reduced from 12 months' imprisonment for the purposes of totality.
The appellant now appeals against his convictions and sentences for those offences.
The appeal against conviction is on the single ground that there was a miscarriage of justice when Eaton DCJ (the primary judge) failed to order a trial by judge alone.
The appellant's case advanced 8 grounds of appeal against the sentences imposed by Birmingham DCJ (the sentencing judge). Leave to appeal was refused on ground 1, which the appellant's written submissions indicated would not be argued. Ground 3 was abandoned at the hearing of the appeal.[2] As explained by the appellant's counsel, the balance of the grounds raised three contentions:
(1)The sentencing judge erred by taking account of the prevalence of the offences which were the subject of counts 1 and 2, and the heightened need to protect the community from the commission of such offences;[3]
(2)The individual sentences imposed for counts 4 - 8 were manifestly excessive.
(3) The total effective sentence of 3 years 6 months' immediate imprisonment infringed the first limb of the totality principle.[4]
[2] Appeal ts 30 - 31.
[3] Appeal ts 34-35.
[4] Appeal ts 29, 37-38.
For the following reasons, the appeal against conviction must be dismissed. The appeal against sentence must be allowed, on the ground that the sentence imposed for count 4 was manifestly excessive. However, while the sentences for some offences should be reduced on re-sentencing, in our view 3 years 6 months' immediate imprisonment is the appropriate total effective sentence.
Appeal against conviction: trial by judge alone
Prior to the identity of the trial judge being known to the parties, the appellant applied for a trial by judge alone. On 20 February 2017, the primary judge dismissed that application for written reasons which his Honour published.[5]
[5] The State of Western Australia v Steele [2017] WADC 23 (Primary decision).
The primary judge indicated that the application was founded on the proposition that it was in the interests of justice for there to be a trial by judge alone, having regard to:[6]
(1) A significant amount of pre-trial publicity following the appellant's arrest;
(2)The appellant's affiliation with The Salvation Army and its recent involvement in the Royal Commission into Institutional Responses to Child Sexual Abuse (Royal Commission); and
(3)The number of complainants and charges faced by the appellant which, the appellant contended, may overwhelm a jury.
[6] Primary decision [17] - [18].
The primary judge dismissed the application on the basis that his Honour was not affirmatively satisfied that it was in the interests of justice to order that the appellant's trial be by judge alone.[7]
Statutory provision
[7] Primary decision [58].
The power of the primary judge to order a trial by judge alone was conferred by s 118 of the Criminal Procedure Act 2004 (WA), which provides:
(1)If an accused is committed on a charge to a superior court or indicted in a superior court on a charge, the prosecutor or the accused may apply to the court for an order that the trial of the charge be by a judge alone without a jury.
(2)Any such application must be made before the identity of the trial judge is known to the parties.
(3)On such an application, the court may inform itself in any way it thinks fit.
(4)On such an application the court may make the order if it considers it is in the interests of justice to do so but, on an application by the prosecutor, must not do so unless the accused consents.
(5)Without limiting subsection (4), the court may make the order if it considers -
(a)that the trial, due to its complexity or length or both, is likely to be unreasonably burdensome to a jury; or
(b)that it is likely that acts that may constitute an offence under The Criminal Code section 123 would be committed in respect of a member of a jury.
(6)Without limiting subsection (4), the court may refuse to make the order if it considers the trial will involve a factual issue that requires the application of objective community standards such as an issue of reasonableness, negligence, indecency, obscenity or dangerousness.
(7)If an accused is charged with 2 or more charges that are to be tried together, the court must not make such an order in respect of one of the charges unless the court also makes such an order in respect of each other charge.
(8)If 2 or more accused are to be tried together, the court must not make such an order in respect of one of the accused unless the court also makes such an order in respect of each other accused.
(9)If such an order is made, the court cannot cancel the order after the identity of the trial judge is known to the parties.
In the present case, the appellant relies on s 118(4), contending that it was in the interests of justice to order that the trial of the charge be by a judge alone without a jury.
General principles
The general principles to be applied in the exercise of the power to order a trial by judge alone were identified by Buss JA, with whom Mazza JA agreed, in LFG v The State of Western Australia.[8] The following presently relevant general principles were identified:
[8] LFG v The State of Western Australia [2015] WASCA 88; (2015) 48 WAR 178.
(1)Neither the accused nor the prosecutor has a right to elect a trial by a judge alone.[9]
[9] LFG [317].
(2)The court's power to make an order for a trial by a judge alone will not be enlivened unless the court is affirmatively satisfied that, in the particular case, it is in the interests of justice to do so.[10]
[10] LFG [318], [325].
(3)The phrase 'in the interests of justice' has a broad connotation, which includes not only the interests of the accused but also the public interest. The public interest in this context includes the proper functioning, and the protection of the integrity, of the criminal justice system as administered by the courts.[11]
[11] LFG [319] - [320].
(4)It is in the interests of the accused, and also in the public interest, that the accused receive a fair trial according to law. This is a fundamental (but not the only) issue with which s 118 is concerned. It will be 'in the interests of justice' to order a trial by a judge alone if that is necessary to ensure the accused receives a fair trial according to law. That will be necessary if there is a real and substantial (as distinct from a remote) doubt as to whether, in the particular case, the accused will receive a fair trial according to law by or before a jury.[12]
[12] LFG [321].
(5)It is not possible, generally or in the abstract, to state exhaustively the factors which will be relevant in determining, in a particular case or in a particular kind of case, whether it is 'in the interests of justice' to order that there be a trial by a judge alone.[13]
[13] LFG [323].
(6)The phrase 'in the interests of justice', in s 118, contemplates the analysis and weighing of a group of factors. The specific factors which are relevant, and the weight to be given to each of those factors, will depend on the matters in issue in the specific application under s 118(1). They will vary from case to case and must be determined on a case‑by‑case basis. The relevant factors in each case will be those which bear upon why it is or is not in the interests of justice, in the particular case, to order a trial by a judge alone. No one factor will necessarily be paramount or superior to any other factor. Each must be given its appropriate weight in light of the particular facts and circumstances.[14]
[14] LFG [324].
(7)In enacting s 118, Parliament must be taken to have known of the following well-established and long-standing principles in relation to criminal trials by or before juries:[15]
[15] LFG [332] - [335].
(a)The experience and wisdom of the law is that, almost universally, jurors approach their tasks conscientiously.
(b)The criminal justice system, as administered by appellate courts, assumes that, as a general rule, juries understand, and follow, the directions which trial judges give them. The assumed efficacy of the jury system, whereby the law proceeds on the basis that juries act only on the admissible evidence and in accordance with the directions of the trial judge, represents the policy of the common law. Although the criminal justice system assumes the efficacy of juries, it is not assumed that the decision‑making of juries is unaffected by matters of possible prejudice.
(c)The possibility that a juror might acquire irrelevant and prejudicial information is inherent in a criminal trial. However, what is vital to the criminal justice system is the capacity of jurors, when properly directed by trial judges, to decide cases in accordance with the law, that is, by reference only to admissible evidence led in court and relevant submissions, uninfluenced by extraneous considerations.
(8)It may be in the interests of justice to order a trial by a judge alone instead of a trial by or before a jury if, for example, there is a real and substantial (as distinct from a remote) risk that:[16]
(a)Pre‑trial publicity has created a public climate of hostility or prejudice to the accused which a jury may be unable to put aside;
(b)The nature of some of the evidence to be adduced by the State is so graphic and disturbing that the jury may be unable properly to consider its relevance and significance; and
(c)The jury may have difficulty in properly understanding intricate and disputed expert evidence to be adduced at the trial or in properly applying difficult legal principles in the context of complicated questions of fact.
These examples are not exhaustive.
[16] LFG [337] - [338].
The appellant refers to the observations of Martin CJ in LFG.[17] The Chief Justice observed that the requirement for the consent of the accused reflects legislative recognition of the fact that a right to trial by jury on an indictable offence is generally regarded as a right of the accused. His Honour said that it is consistent with the implicit legislative recognition of that right to give at least some weight to the views of the accused which are not fanciful or irrational in the exercise of the discretion conferred by s 118.
[17] LFG [116].
We agree that the views of the accused are not an irrelevant consideration. However, the views of the accused, even if not fanciful or irrational, are not controlling. The crucial consideration will be the court's view of whether it is in the interests of justice to order a trial by judge alone, and other matters relevant to an assessment of where the interests of justice lie. The court's view is formed having regard to the public interest and legal policy considerations referred to above, as well as the subjective views of the accused.
It follows that we would not go so far as Martin CJ did in Arthurs v The State of Western Australia,[18] where his Honour observed:
Thus, in my opinion an apprehension by an accused person, which is not fanciful or irrational, that he or she may not get a fair trial by jury because, for example, of pre-trial publicity or because of their ethnic, religious, cultural or other peculiar circumstances, may be entitled to significant weight.
Therefore, in some cases the fact that an accused person has made an application for trial without jury and has an apprehension, which is not fanciful or irrational, that his or her trial by a jury may be prejudiced by any circumstance may of itself be sufficient to produce the conclusion that it is in the interests of justice for the application to be granted if there are no countervailing considerations in favour of trial by jury.
[18] Arthurs v The State of Western Australia [2007] WASC 182 [79] - [80].
Counsel for the appellant also rely on the following passage of Martin CJ's reasons in LFG:[19]
In this case, it is apparent from the reasons of the Chief Judge that he placed considerable reliance upon observations made in earlier cases to the effect that juries, properly directed, are capable of ignoring prejudice and sympathy, and deliver verdicts on the facts in a dispassionate manner. However, with respect, observations of that kind are customarily made in the context of an application to stay or abort a trial on the basis of unfairness. Considerations of the kind to which the Chief Judge referred were of the utmost relevance to the decision made by Stevenson DCJ to admit the evidence pursuant to s 31A of the Evidence Act. However, the fact that a jury is capable of returning a true verdict despite the risk of prejudice is of much less significance to the exercise of the discretion under s 118 of the Act, which requires attention to be directed to the enhancement or advancement of the interests of justice. For the reasons I have enunciated, that question is more concerned with the steps that might be taken to reduce the risk of unfairness or injustice without it necessarily being established that an order is necessary to avoid injustice or unfairness which would otherwise result. (emphasis added)
[19] LFG [143].
This passage reflects the difference of approach between the dissenting judgment of Martin CJ and the reasons of the majority in LFG. On the majority's view, the question is not merely whether a trial by judge alone would reduce the risk of unfairness or injustice. A conclusion that trial by judge alone would have that effect does not determine whether an order for trial by judge alone should be made. It is rather necessary to consider whether the court is affirmatively satisfied that, in the particular case, in all the circumstances, it is in the interests of justice to order a trial by judge alone, having regard to the public interest, general principles and matters of legal policy referred to in the majority's decision. We respectfully endorse the majority's approach, which we apply in this appeal.
Criteria for appellate review
Senior counsel for the appellant accepted that two steps were required before this court could conclude that the failure to order a trial by judge alone resulted in a miscarriage of justice. First, counsel accepted that it was necessary for the appellant to show that the primary judge made an error of the kind referred to in House v The King[20] in the exercise of the discretion conferred by s 118.[21] Secondly, this court must consider afresh and for itself the manner in which the discretion should have been exercised, and conclude that it was in the interests of justice for there to be a trial by judge alone.[22]
[20] House v The King (1936) 55 CLR 499, 504 - 505.
[21] Appeal ts 3, 5, 12.
[22] Appeal ts 3, 6, 12 - 13.
Counsel for the respondent contended that there was a third requirement which must also be satisfied before a miscarriage of justice would be established. He submitted that it was also necessary to look at the record of the trial that was had and determine that there had been a departure from a fair trial according to law. Implicit in that submission is the contention that an erroneous exercise of the discretion under s 118 is not itself a departure from a fair trial according to law.[23]
[23] Appeal ts 13 - 14.
It is unnecessary to determine whether the third requirement identified by the respondent must be satisfied before this court can conclude that the refusal to order a trial by judge alone results in a miscarriage of justice. It is also unnecessary to determine whether the primary judge made an error of the kind referred to in House v The King. That is because, considering the matter afresh and for ourselves, we are not satisfied that it was in the interests of justice for the appellant's trial to be by judge alone. In our view, the ultimate conclusion reached by primary judge was correct, even if one or more of the appellant's criticisms of his Honour's reasoning were to be made out. As senior counsel for the appellant accepted, this conclusion means that a miscarriage of justice has not been established and the appeal must fail.
The interests of justice in this case
Nature of the prosecution case
The general nature of the charges is summarised in the table at [1] of these reasons. The circumstances in which the offences were alleged by the statements of material facts to have been committed were broadly consistent with the findings by the sentencing judge noted at [45] - [57] below. The offences involved the appellant engaging or seeking to engage in sexual activity with boys aged between 11 and 18 years who he met either by reason of his association with The Salvation Army or his employment as a manager of United Fruit and Vegetable Markets.
Appellant's submissions
The appellant's oral and written submissions in the appeal did not rely on the third of the matters referred to at [7] above. That was a correct approach. There was no substance in that contention when it was made before the primary judge. The number and nature of the charges in the indictment were not such as to overwhelm a jury. It is not unusual for juries to deal with multiple counts on an indictment involving different victims, where the evidence on each count is cross-admissible as evidence of the appellant's tendency to engage in sexual activity of the relevant kind. For examples of cases involving more counts and more complainants than in the present case, see Huggins v The State of Western Australia.[24] There was no reason to apprehend that the jury would not be able to consider the evidence on each count and follow the trial judge's directions in doing so.
[24] Huggins v The State of Western Australia [2018] WASCA 61 [769] ‑ [771].
Rather, the appellant's submissions on appeal focus on the pre-trial publicity concerning the appellant's particular case, as well as material associated with the inquiry by the Royal Commission.
The appellant submits that his trial was about to take place at the height of the Royal Commission hearings which were in the news every day. The appellant had a history with The Salvation Army. The Salvation Army had made some comments about his case. The media publicity meant that the appellant gained a degree of notoriety quite apart from anyone else who was charged with historical sexual offences. The appellant was on TV, was named and his background was articulated both in electronic and tabloid media. The appellant says that he then found himself in a position where he genuinely felt that, against the background of all that was going on in the public domain, he was unlikely to get a fair trial. The appellant says that there was a high level of publicity and contempt for persons charged with child sexual offences, and for him personally. The appellant submits that The Salvation Army was the subject of a great deal of contempt in the public domain at the time, which was being fed on by the media, and the appellant himself was named and singled out.[25]
Evidence of publicity about the appellant's case
[25] Appeal ts 7 - 9.
The following is a summary of the evidence adduced before the primary judge as to pre-trial publicity concerning the appellant's case.
A DVD of a Channel 9 News segment of 9 June 2015, is introduced by the newsreader indicating that a former Salvation Army soldier will deny child sex charges dating back to the 1960's. The presenter states that the 71‑year‑old appellant is accused of assaulting four boys aged between 11 and 18 years between 1963 and 1989. The newsreader indicates that the appellant was working for numerous Salvation Army churches at the time, and that the charity says that it is disturbed by the allegations. Video of the appellant shows him leaving a court. A Dr Bruce Redman, in Salvation Army uniform, is shown saying that:
The Salvation Army is, quite frankly, shocked and really concerned that these charges have been brought against this man.
The newsreader then reports that the Salvation Army says it is supporting the alleged victims and is urging any others to come forward.
There are a number of news articles published in June or July 2015 which indicated that the appellant had been charged with assaulting boys, that he was associated with the Salvation Army and that the appellant denied the charges. Some of the articles also indicate that the appellant was a band member, worked in a fruit and vegetable auction house and used a rented flat in South Perth to encourage boys to engage in sexual behaviour with him. A number of the articles also quote statements of Dr Redman to the general effect noted above.[26] A website 'REAL for women' also refers to the appellant, a former Salvation Army church member, appearing in the Magistrates Court, a general description of the charges faced and an indication that the appellant intended to plead 'not guilty' to the charges.[27]
[26] Affidavit of William Edwin Steele sworn 23 January 2017, annexures WES 1 - WES 18.
[27] Affidavit of William Edwin Steele sworn 23 January 2017, annexure WES 19, page 58.
Results of a 'Google' search of the appellant's full name undertaken on 23 January 2017, either alone or in conjunction with a reference to the Salvation Army, produced links to a number of the above news articles.[28]
[28] Affidavit of Christopher Michael Townsend sworn 23 January 2017, par 4 - 5, annexure CMT 1 ‑ CMT 2.
The appellant also produced a Facebook post by WA Police which referred to the charges which had been laid against the appellant without naming him. Members of the public made a large number of comments on the Facebook post, one of which names the appellant. Many of those comments indicate a hatred of child sex offenders, propose the execution or torture of persons who commit such offences and proceed on the presumption that the appellant must be guilty of the offences with which he has been charged.[29]
Evidence as to the activities of the Royal Commission
[29] Affidavit of William Edwin Steele sworn 23 January 2017, annexure WES 6.
The following is a summary of the evidence adduced before the primary judge as to the involvement of The Salvation Army in the Royal Commission.
As at 23 January 2017, the Facebook page of the Salvation Army included a post, made on 27 January 2014, which indicated that the Royal Commission was commencing a public hearing into four boys homes operated by The Salvation Army in New South Wales, Queensland and the Australian Capital Territory prior to 1980. The statement expressed deep regret for every instance of child sexual abuse inflicted on children in The Salvation Army's care. Also included on the Facebook page are a number of comments made by members of the public, many of which express criticism of the organisation and its response to allegations of child sexual abuse in forceful and scathing terms.[30]
[30] Affidavit of Christopher Michael Townsend sworn 23 January 2017, par 6, annexure CMT 3.
A webpage of the Royal Commission accessed on 23 January 2017 identifies the public hearings, which involve particular case studies.[31] The list of case studies refers to institutions operated by a variety of religious, government and community bodies. Four case studies relate specifically to The Salvation Army. Case study 49, for which hearings were held in December 2016 in Sydney, inquired into the current policies and procedures of The Salvation Army in relation to child-protection and child-safety standards, including responding to allegations of child sexual abuse. Case study 33, for which hearings were held in Adelaide in October 2015, inquired into the experiences of former child residents at institutions operated by The Salvation Army (Southern Territory) between 1940 and 1990. Case study 10, for which hearings were held in Sydney in March 2014, examined the responses of The Salvation Army (Eastern Territory) to claims of child sexual abuse between 1993 and 2014. Case study 5, for which hearings were held in January 2014 in Sydney, examined the response of the Salvation Army to child sexual abuse at boys' homes in Indooroopilly, Riverview, Bexley and Goulburn.
[31] Affidavit of Christopher Michael Townsend sworn 23 January 2017, annexure CMT 4.
A 'Google' search on 23 January 2017 using the terms 'royal commission salvation army' produced a number of results of links relating to the inquiry by the Royal Commission. The headings to a number of the links indicated criticism of the organisation's response to allegations of child sexual abuse.[32]
[32] Affidavit of Christopher Michael Townsend sworn 23 January 2017, annexure CMT 5.
On 17 February 2017, a cover article on the West Australian Newspaper was published under the headlines 'Catholic Child Sex Abuse', 'Church Shame' and 'Shocking New Data Reveals Extent of Evil'. The text of the article reported that evidence before the Royal Commission indicated that 8.3% (described as 'almost one in 10') Catholic priests who served in the Archdiocese of Perth between 1950 and 2010 were accused of sexually abusing children.[33]
[33] Affidavit of Christopher Michael Townsend sworn 8 February 2017, annexure CMT 1.
The State referred to The Salvation Army's webpage, accessed on 24 January 2017, which contained a broad description of the nature and scope of the social welfare activities of the organisation. [34] The State also referred to a media release issued by The Salvation Army on 29 May 2016, reporting the results of its Red Shield Appeal which raised about $4.7 million in donations across Australia.
Disposition
[34] State's outline of submissions on application for trial by judge alone filed 31 January 2017 [18]
We do not accept that pre-trial publicity about the appellant or the activities of the Royal Commission, considered in isolation or combination, produced any real and substantial (as distinct from a remote) doubt as to whether the appellant would receive a fair trial according to law before a jury.
The media reports to which the appellant refers mostly concern a report of the appellant's first appearance in the Magistrates Court on the charged offences in the indictment. The reports indicated that the appellant was charged with and denied the offences. The reports were made in June and July 2015, over 18 months prior to the appellant's trial. The appellant had not gained a degree of public notoriety which made it likely that any of the jury members would recall, in detail or at all, anything that was said about the appellant in the media. While the reports remained available upon a search of the internet, a jury would be instructed not to undertake its own research.
The activities of The Salvation Army were not the sole or primary focus of the inquiry by the Royal Commission. A number of governmental, religious and other bodies were the subject of various case studies by the Royal Commission. The case studies involving The Salvation Army were not concerned with alleged activities which the appellant had been involved, but rather concerned the current practices and policies of The Salvation Army and experiences of children in institutional care in other Australian States. The offences with which the appellant was charged were not alleged to have been committed in a setting of institutional care.
The media reports did identify the appellant as a member of The Salvation Army. However, the evidence to be led at trial would describe his connection with that organisation.
The appellant and the respondent make competing contentions about general public attitudes to members of religious organisations in general and The Salvation Army in particular. The appellant contends that there was a climate of public hostility and prejudice toward members of religious groups, including the Salvation Army. The respondent submits that the Salvation Army is generally held in high regard. Neither submission is supported by evidence demonstrating a general community attitude which is likely to be held by a substantial number of potential jurors.
It is unnecessary to attempt to reach any conclusion as to current general community attitudes toward members of religious organisations in general, or members of The Salvation Army in particular. There is no reason to apprehend that the jury, after being directed by the trial judge, would decide the case by reference to personal prejudice or by reference to their general attitude to the Salvation Army. It was to be expected that the jury would be directed that they must decide the case only by reference to the evidence, in a manner which puts aside emotion and prejudice. Consistently with that common practice, the jury at the appellant's trial were given such a direction both during the course of the trial and in the trial judge's charge.[35] Those directions require the jury to put aside any prejudices that individual members of the jury, or the jury members as a whole, may hold in favour of or against members of religious organisations in general or The Salvation Army in particular. There is nothing about the nature or extent of the publicity about The Salvation Army or the appellant which gives rise to any reasonable apprehension that the jury might be incapable of following such a direction. We note that the appellant makes no complaint about the directions which were actually given at his trial.[36]
[35] Trial ts 66 - 68, 171, 275, 330, 404, 450, 452, 484 - 485.
[36] Appeal ts 12.
It may be accepted that the appellant subjectively held a concern about whether he would receive a fair trial. While not an irrelevant consideration, the court must give predominant weight to its own assessment as to the absence of any real and substantial (as distinct from a remote) doubt as to whether the appellant would receive a fair trial according to law before a jury and, more generally, as to where the interests of justice lie.
It may also be noted that the charges which the appellant faced required the court to consider whether the relevant acts were indecent. This was a factual issue that requires the application of objective community standards, which under s 118(6) may itself be a ground for refusing to make an order for trial by judge alone. Before the primary judge, the appellant indicated that the appellant would formally admit that the acts in question were indecent, so the issue would not need to be resolved at trial.[37] However, no such admission was actually made at the appellant's trial, and the jury were directed as to elements of indecency of which they were required to be satisfied.[38] This is a further factor counting against the making of an order for trial by judge alone. It also illustrates why a court may properly be reluctant to act on a non-binding indication of a future admission in a trial for an offence the elements of which involve the application of community standards.
[37] Trial ts 23 - 24.
[38] Trial ts 462, 466 - 467, 469, 471.
In all the circumstances of this case, we do not consider that it was in the interests of justice to order a trial by judge alone. Regardless of whether the primary judge made the errors alleged by the appellant in the course of reaching that conclusion, his Honour's ultimate conclusion was correct. In those circumstances, no miscarriage of justice is established and the appellant's appeal against conviction must be dismissed.
Appeal against sentence
Circumstances of offending
In sentencing the appellant, the sentencing judge made the following findings as to the circumstances of the appellant's offending.[39]
Counts 1 and 2.
[39] Trial ts 546 - 548.
These offences occurred on a date unknown between 30 June 1963 and 1 January 1964. The victim, RF, was approximately 11 years old and the appellant was 19 years old. The appellant knew RF through the Subiaco chapter of The Salvation Army. Both the appellant and RF were members of the church band.
As a precursor to the offending, the appellant took RF to or near a room at the rear of the church on two occasions. On each occasion, the appellant removed his penis from his pants and masturbated until he ejaculated into a handkerchief in front of RF. On the second occasion, the appellant invited RF to place the appellant's penis in his mouth, which RF declined. Neither of these incidents were the subject of charges.
About a week after the second of those incidents, the appellant again asked RF to come to that area of the church. On this occasion the door to the room was unlocked, and the pair entered the room. The appellant removed his erect penis from his pants, and began to masturbate. The appellant grabbed hold of RF's hand and placed it on the appellant's penis, encouraging RF to help the appellant to masturbate. This is the subject of count 1 on the indictment.
The appellant then asked RF if he could put the appellant's penis in his mouth and suck it. The appellant told RF that it was nice and that it was what people did. The appellant placed his penis into RF's mouth. RF started to gag. The appellant then removed his penis from RF's mouth and continued to masturbate. This conduct is the subject of count 2 on the indictment.
Count 3
Count 3 concerned an occasion in August 1980, when the appellant was a manager at the United Fruit and Vegetable Markets in West Perth. The victim, GF, was a 15‑year‑old boy, who had recently started working with his uncle at the markets.[40] The appellant was 36 years old.
[40] Although the sentencing judge referred to GF as being 14 years old at trial ts 547, the evidence of GF at trial ts 176 indicated that he was 15 years old in August 1980.
GF was sent to get some coffee from the kitchen in the office. When he attended that area, GF came upon the appellant who had his penis out and was masturbating. The appellant advanced towards GF and said words to the effect 'come on, touch me and suck this'. GF was frightened, left the office and informed his uncle what had occurred.
Counts 4 and 5
Counts 4 and 5 occurred on unknown dates between 31 August 1983 and 31 March 1984. The victim, PM, was then about 17 years of age. PM knew the appellant through the church band. The appellant took PM to a unit he had in South Perth. There the appellant leaned forward, and kissed PM on the lips and told PM that he was special. PM was troubled and did not understand what the appellant was doing. This incident is the subject of count 4 on the indictment.
Approximately two weeks later, the appellant took PM to a suit shop, where PM was measured for a tailor-made suit. The kissing incident was not discussed.
About another two weeks later, the appellant conveyed PM back to the South Perth unit. The appellant told PM that he was expecting to meet a business partner. PM was apprehensive but went into the flat. The sentencing judge inferred that PM did so principally because of the appellant's position and standing in relation to him. The appellant again kissed PM on the lips. This incident is the subject of count 5 on the indictment.
Count 6
Count 6 involved conduct during a period in early 1985 when the appellant was still a manager at the United Fruit and Vegetable Markets. The appellant took MB, a young employee, to lunch and permitted him to drive the appellant's motor vehicle. Although the sentencing judge did not make a specific finding, it seems clear that MB would have been 18 years old at this time.[41] When MB was driving the vehicle, the appellant placed his hand on MB's leg above the knee and ran his hand up to touch MB's genitalia on the outside of MB's clothes. MB indicated that if the appellant did not stop what he was doing, MB would crash the car. The appellant then removed his hand.
Counts 7 and 8
[41] Trial ts 254
Counts 7 and 8 occurred on the same occasion and involved the victim, GM, who was then some 16 years old.[42] The appellant said that he had a gift for GM, who was moving away with the church. The appellant took GM in a motor vehicle and parked at a previous premises of the church. There the appellant gave GM a gift.
[42] Although the sentencing judge referred to GM as being 15 years old at trial ts 548, the evidence of GM at trial ts 285 indicated that he was 16 years old in December 1989 and January 1990.
The appellant then leaned over and placed his hands on GM's face. The appellant kissed GM, inserting his tongue into GM's mouth. GM froze. The appellant continued to kiss him. This is the conduct the subject of count 7 on the indictment.
The appellant then placed his right hand on GM's genitalia through the outside of his clothing, and touched GM as the appellant kissed him. This is the conduct the subject of count 8 on the indictment.
Personal Circumstances
The appellant was born in Perth in February 1944. He was 73 years of age at the time of sentencing, and between 19 and 46 years of age at the time of committing the offences.
The appellant had a difficult upbringing, being raised with an abusive alcoholic stepfather and a mother who he described as helpless to protect him. In 1955, the appellant and his siblings were made wards of the State. He stayed in a boys' home and with different foster families, until being placed in the care of his aunt at the age of 15 or 16. The appellant remained with his aunt, where he enjoyed a secure upbringing, until he married at age 20.
After about 3 years working for a grocer, the appellant began employment a junior in United Fruit and Vegetable markets. He worked his way up to the position of General Manager. In 1987, the appellant was convicted of stealing as a servant and was sentenced to 4 years' immediate imprisonment. The appellant was released on parole in September 1988. The offending in respect of counts 1 to 6 occurred prior to the appellant's term of imprisonment, while the offending in respect of counts 7 and 8 occurred afterwards.
The appellant was always a member of The Salvation Army and drew great strength from that, and particularly as a teenager and growing into an adult. After his release from prison in 1988, the appellant was engaged in a paid position with The Salvation Army and moved to their Karratha office. The appellant remained with The Salvation Army until charged with the indicted offences. The appellant also worked in a family business, retiring somewhere between the ages of 60 and 65.
The appellant had been with his wife since their marriage, and has four adult children and 12 grandchildren. He continued to have the support of his immediate family,
The appellant denied using alcohol or illicit drugs. The appellant suffers a number of health complaints, mostly associated with age.
The appellant continued to deny the offending after conviction.
Sentencing judge's approach
The sentencing judge made the above findings of fact and noted the appellant's personal circumstances. The sentencing judge noted the victim impact statements, which had been received from GM, RF and GF. Those statements indicated the significant psychological impact which the appellant's offending had on those victims. In relation to the victim impact statements, the sentencing judge observed:[43]
But what does come through is that even when it's the conduct of kissing - the assault by kissing, the incredible impact that that has had upon them. The inability to cope in one instance has led to a deterioration in mental health, inability to cope with work.
[43] Trial ts 551.
The sentencing judge observed that the appellant demonstrated no victim empathy, remorse or contrition at all, and denied the offending which limited the assistance offered by the pre-sentence report and psychological report.[44] Due to his age, the appellant was a below average risk of sexually re-offending.[45]
[44] Trial ts 551 - 552, 553.
[45] Trial ts 552 - 553.
The sentencing judge took account of the appellant's age and health issues as mitigating factors, as well as the 27 years between the last of the offending and the date of sentence. The sentencing judge also observed that, although personal deterrence was not a significant factor, matters of appropriate punishment and general deterrence remained important.[46] The sentencing judge said:[47]
It's not uncommon for sexual offending committed by persons in trusted positions to remain secret for a long time. You've been able to get on with your life without having to face any adverse consequences. You've enjoyed the benefits of reputation that you were not otherwise entitled to.
However, for the victims the story is altogether different. You and others who offend in this way must realise such wrongdoing can and will lead to terms of imprisonment, even if they're if in their advanced years, when they come before the court to answer for their abuse of young children.
Your age is plainly irrelevant for sentencing factors to be taken into account by me. However, when weighed against the seriousness of the offending and the need to provide general deterrence, such factors don't justify the imposition of a sentence other than a term of imprisonment.
[46] Trial ts 553 - 554.
[47] Trial ts 554.
The sentencing judge identified a number of aggravating features of the offending: the degree of perversion and deviance demonstrated by the offences, the disparity in ages between the appellant and the victims, the fact that the appellant was in a position of trust or authority in respect of the victims and that the offences were not isolated. The sentencing judge also noted the absence of any sign of remorse, contrition or victim empathy, and the appellant's tendency to blame others when convicted of an offence.[48]
[48] Trial ts 555.
The sentencing judge then made the following observations before imposing the sentences described at [1] above:[49]
[49] Trial ts 555 - 556 (emphasis added).
I do take into account, however, your youth at the time of offending, particularly in relation to counts 1 and 2, which were committed in - back in I think 1963 or '64. At that time you were then 19 years of age, indeed the age of majority that came into force in 1972. You were at that stage under the age of 21, which was then the age of majority.
That said, however, you were still a mature man. You became engaged shortly after this incident … and you married when you were 20. In the '60s, people who were 20 were going - being conscripted and going to war. I do take account of the fact that you were a young man, however, and your youth is a factor that does - must be taken into account for the nature of the offending.
I also take into account the impact of the commission of your offending against the victims, as identified in the victim impact statements. I also have regard to the prevalence of offences such as this in the community at the time, and the degree to which particular circumstances indicate a heightened need to achieve protection of the community, and particularly young people, from the commission of offences such as this.
I have regard to the matters raised in mitigation by your counsel and the matters set out in the pre-sentence report, and also the matters set out in the psychological report and in the written submissions.
Clearly the only appropriate disposition is a term of imprisonment. I'm obliged to fix a sentence in respect of each of the offences and then determine the total effective sentence that you'll be required to serve. When I announce the sentence, I'll take into account the factors to which I have referred already and the mitigating circumstances that have been identified.
Clearly a significant mitigating factor is that you have, since the last of these offences, not reoffended and conducted yourself within the church and seemingly applied yourself within the court consistent with the church values. That said, however, these are serious offences for which an appropriate penalty must be imposed. (emphasis added)
Ground 2: finding as to prevalence of offending
Ground 2 of the sentence appeal contends that the sentencing judge erred by taking into account the prevalence of the types of offences of which the appellant was convicted, there being no evidence before the court as to the extent to which those types of offences were prevalent at the time they were committed. The ground contends that the sentencing judge erred in dealing with the appellant on the basis that there was, as a result, a heightened need to protect the community from offences such as this.
This ground related to the italicised portion of the sentencing judge's remarks reproduced at [69] above. The appellant's argument proceeded from the premise that these remarks were directed only to the offending which was the subject of counts 1 and 2 on the indictment, which occurred in 1963, in a church setting.[50] Senior counsel for the appellant properly conceded that if the italicised portion of the sentencing judge's remarks were read as being no more than a broad statement about sexual offences against young people from the 1960's to the 1980's, there would be nothing wrong with it.[51]
[50] Appeal ts 34 - 36.
[51] Appeal ts 36 - 37.
We do not accept that the passage complained of is focussed on the offending which is the subject of counts 1 and 2 of the indictment. In the first two paragraphs quoted at [69] above, the sentencing judge is dealing with the mitigating effect of the appellant's youth at the time of the commission of the offences in 1963. His Honour then moves onto different topics, addressing the impact of the offending on the appellant's victims, as identified in the victim impact statements. The use of the plural indicates that the sentencing judge is not only concerned with RF, the victim in relation to counts 1 and 2. Immediately after the impugned passage, the sentencing judge moved to refer to matters of mitigation generally. That context does not suggest that, in the italicised passage quoted at [69] above, the sentencing judge is confining his remarks to the circumstances of counts 1 and 2. Nor does the context, which includes a number of offences committed by the appellant when he was a manager at the United Fruit and Vegetable Markets, suggest that the remarks were focussed on offending in a church setting.
In our view, the sentencing judge was doing no more than indicating that, having regard to the ongoing prevalence of child sexual offending (both historic and current) with which the District Court so regularly deals, general deterrence was a significant sentencing consideration. As senior counsel for the appellant correctly recognised, there is nothing impermissible in that approach.[52] Nor is there anything impermissible in a judge making an assessment of prevalence by reference to the experience of his or her court in regularly dealing with offences of the relevant type.[53]
[52] See R v Peterson [1984] WAR 329, 332, 334.
[53] Powell v Tickner [2010] WASCA 224 [10] - [11].
For these reasons, ground 2 of the sentence appeal is not established.
Other grounds: manifest excess and totality
As explained in oral submissions, the balance of the grounds in the sentence appeal allege implied error, both in relation to the individual sentences for counts 4 - 8 and the total effective sentence.
The applicable principles are well established, and were summarised in Salkilld v The State of Western Australia:[54]
(1)Sentencing is a discretionary exercise. An appellate court can intervene only if the appellant demonstrates either an express or implied material error. Express error involves acting on a wrong principle, for example by mistaking the law or facts or taking into account an irrelevant matter. Implied error arises where the end result is so unreasonable or unjust that the court must conclude that a substantial wrong has occurred. Thus, an appellate court cannot substitute its own opinion for that of the sentencing court merely because the appellate court would have exercised a sentencing discretion differently.
(2)In order to determine whether a sentence for an individual offence is manifestly excessive, the offence should be viewed in light of the maximum sentence prescribed by law for the crime, the standards of sentencing customarily imposed with respect to it, the place that the criminal conduct occupies in the scale of seriousness of crimes of that type, and the offender's personal circumstances.
(3)The first limb of the totality principle requires that the total effective sentence imposed on an offender who has committed multiple offences bears a proper relationship to the overall criminality involved in all of the offences (including those, if any, in respect of which the offender is still serving or is yet to serve a term of imprisonment), viewed in their entirety, having regard to all relevant facts and circumstances including those referable to the offender personally (and including, for example, the desirability of accommodating any wish to rehabilitate), all relevant sentencing factors and the total effective sentences imposed in comparable cases.
(4)The range of sentences customarily imposed for a crime does not establish the range of a sound exercise of the sentencing discretion. Sentences customarily imposed in comparable cases provide a yardstick or reference point for ensuring broad consistency in sentencing, bearing in mind the scope for significant variations in relevant sentencing factors, and that there is no single correct sentence. What is important is the unifying principles which sentences imposed in comparable cases reveal and reflect.
(5)When this court dismisses an appeal against sentence and when it resentences on a successful appeal, its decision does not fix the upper or lower limit of the range.
(6)Where there is a challenge on totality grounds, the severity of a sentence imposed on an individual count generally falls to be assessed in light of the sentences imposed in respect of the other counts and its contribution to the total effective sentence. A heavy individual sentence may be softened by an order that it be served concurrently with sentences imposed in relation to the other counts. A relatively light sentence may, as a practical matter, have increased severity if it is ordered to be served cumulatively. The real question is whether the total effective sentence is outside the available sentencing range.
[54] Salkilld v The State of Western Australia [2017] WASCA 168 [48].
The sixth of these points is significant in the present case. The only cumulative sentences imposed for counts 4 - 8 were the sentences of 12 months' imprisonment imposed for count 4 and 6 months' imprisonment imposed for count 8. We do not regard it as arguable that the sentence imposed for count 8, which concerned the appellant rubbing the groin of the 16‑year‑old victim, was manifestly excessive in all the circumstances. Indeed, as will be seen, upon a re‑exercise of the sentencing discretion that is the sentence we impose. To the extent that the other concurrent sentences may be regarded as high, the severity of those sentences is reduced by the order that they be served concurrently with other sentences. In any event, it is unnecessary to determine whether the individual sentences for counts 5 and 7 were manifestly excessive because we are satisfied the sentence for count 4 was manifestly excessive. That requires this court to resentence the appellant on all counts.
We turn to the allegation of manifest excess in relation to count 4, which concerned the appellant kissing the 17‑year‑old victim PM. The 12 month sentence imposed on the appellant for that offence represents one third of the 3 year maximum penalty for the offence of unlawfully and indecent assaulting a male person under the former s 315 of the Code.
The facts found by the sentencing judge in relation to count 4 are noted at [51] above. Further context is provided by the evidence of PM, which the sentencing judge evidently accepted.
PM said that the offending occurred when he was 17 years old, 'going on very close to 18, maybe even 18'.[55] PM was friends with the appellant's son, and knew the appellant through the Gosnells corps of The Salvation Army.[56] PM was not sure of what position the appellant held in The Salvation Army at that stage, but knew that he was playing in the band.[57] PM spoke to the appellant after meetings, and would go the appellant's house to visit his son or for youth group activities. Their relationship grew because the appellant showed more interest in PM than anyone else, and became the person to whom PM spoke the most about what was going on in his personal life.[58]
[55] Trial ts 228.
[56] Trial ts 225,
[57] Trial ts 226.
[58] Trial ts 226 - 228.
The conduct which was the subject of count 4 occurred when the appellant invited PM to go for a drive with him, and said he needed to call past a place. The appellant took PM to a unit in the South Perth or Victoria Park area.[59]
[59] Trial ts 229 - 230.
They went inside and PM took a seat at the kitchen table. The appellant got a glass of water and sat down at the table in front of PM. The appellant told PM that he was special, that he was a good lad and that the appellant liked him. The appellant slid his chair forward to the point when his knees were touching PM's knees. PM was doing nothing and was frozen at this time.[60]
[60] Trial ts 230 - 231.
PM described the offence in the following terms in his evidence in chief:[61]
So [the appellant] continued to get closer, and now he’s - he had his knee in between my legs, and he’s basically as close as he could get in - in the chair that he was in. And then he moved as far forward as he could, and now his face was directly right in front of my face. And so I’m a little bit - you know, tentative here. I’m pushing back in the chair. And then when he was as close as he could get, he proceeded to kiss me, like, give me a little peck. At first it was a little peck, like you would probably give your partner when you’re saying goodbye to them in the morning. There was nothing overly passionate about it. And then a couple of little pecks turned into something a little bit - you know, more passionate, more like you would maybe do with your girlfriend on a first date, or you know, you would - he was trying to - look, I - sorry, I’ll be - he - the kissing definitely got more passionate, more like open-mouth kissing. And by this time I was pushed right back as far as I could go.
[61] Trial ts 232.
PM said that he kept his mouth closed during this time. The appellant's hands were on PM's thighs, just above his knees. PM said that the kissing continued for about 2 - 3 minutes and the whole incident would have taken about 5 - 6 minutes. PM said that he was non-responsive and the appellant just stopped. The appellant got up and they left the unit.[62]
[62] Trial ts 232 - 233.
At this time, the appellant would have been about 40 years old.
The parties have not referred to, and we have not been able to locate, any comparable sentencing cases under the former s 315 of the Code.
Having regard to all of the circumstances and all relevant sentencing principles, we are of the view that the sentence of 12 months' immediate imprisonment to be served cumulatively was manifestly excessive. The appellant's offending was far from the most serious kind of offending under the former s 315. The level of intrusion was limited to kissing, and there was no threat of further physical violence if PM did not comply. That is not to deny the seriousness of the offending, but to recognise the place of the offending on the scale of seriousness of offences of indecent assault.
Counsel for the respondent points to the sentencing judge's finding as to the serious impact which the offending had on the victims. However, that finding was expressed by reference to the victim impact statements.[63] There was no victim impact statement from PM. The only indication which PM gave during the course of his evidence as to the impact of the first offending on him was when explaining why he went with the appellant to the unit on the second occasion:[64]
But he'd tried to kiss you and that was something that was really disgusting, wasn't it?---I wouldn't say disgusting. It freaked me a little bit. Yeah, it was uncomfortable but, you know, it wasn't like he - he grabbed me by the throat and, you know, squeezed me by the arm and - and made me do something that I didn't want to - I mean, I didn't really want to partake but I - I didn't feel threatened. I felt safe with [the appellant] the whole time.
[63] Trial ts 551.
[64] Trial ts 241.
The offence was also aggravated by the evident grooming behaviour of the appellant, by the significant age difference between the appellant and PM and by the fact that the appellant had gained and abused PM's trust. It may also be noted that the offending was not an isolated incident, but was part of a pattern of offending by the appellant. The appellant did not have the mitigating benefit of a plea of guilty or remorse. However, even having regard to these features of the case, we do not consider that a sentence of one third of the maximum available penalty could be justified. In our view, a cumulative sentence of one third of the maximum penalty was unreasonable or plainly unjust in these circumstances.
As the sentencing judge's discretion miscarried in relation to one of the individual sentences forming part of the total effective sentence, the total effective sentence should be set aside and this court must exercise the sentencing discretion, afresh and for itself, on all aspects of the sentences imposed.[65]
[65] YDN v The State of Western Australia [2018] WASCA 62 [53] and cases there cited.
In our view the seriousness of the appellant's offending was such that a sentence of imprisonment was the only appropriate sentence in respect of each of the offences. The conduct in respect of counts 1 and 2 was so serious that it would not be appropriate to suspend or conditionally suspend the sentences of imprisonment for those counts. It follows that suspension or conditional suspension was not available for other counts on the indictment.[66] In assessing the overall criminality of the appellant's offending, the aggravating features identified by the sentencing judge and summarised in [68] above must be given appropriate weight. Like the sentencing judge, we consider that a sentence of 3 years 6 months' imprisonment properly reflects the overall criminality involved in all of the offences viewed in their entirety, having regard to all relevant facts and circumstances, including those referable to the offender personally. It follows that we see no merit in the grounds of appeal which contend that the total effective sentence infringed the first limb of the totality principle.
[66] Section 76(3)(b) and s 81(3)(b) of the Sentencing Act 1995 (WA).
We would reduce the sentence imposed for each of counts 4 and 5 to 4 months' immediate imprisonment, and the sentence for count 7 to 6 months' immediate imprisonment. We would not interfere with the other sentences. We would order that the sentences for counts 6 and 8 be served cumulatively upon each other and the sentence imposed for count 2. The sentences for counts 1, 3 - 5 and 7 should be served concurrently with each other and with the sentence imposed for count 2. The total effective sentence therefore remains 3 years 6 months' imprisonment. The appellant should remain eligible for parole, and the sentence backdated to 30 June 2017.
Orders
For the above reasons, the following orders should be made in the appeals:
CACR 153 of 2017: Appeal against convictions
(1)Leave to appeal on the sole ground of appeal is refused.
(2)The appeal is dismissed.
CACR 152 of 2017: Appeal against sentences
(1)Leave to appeal is granted on ground 6.
(2)The appeal is allowed.
(3)The sentences imposed in respect of counts 4, 5 and 7 of District Court indictment 622 of 2016 are set aside, and the following sentences are substituted:
(a)4 months' immediate imprisonment in respect of each of counts 4 and 5; and
(b)6 months' immediate imprisonment in respect of count 7.
(4)The orders for accumulation and concurrency of sentences made by the sentencing judge are set aside, and the following orders are substituted:
(a)The sentences for counts 6 and 8 are to be served cumulatively upon each other and the sentence imposed for count 2.
(b)The sentences for counts 1, 3 - 5 and 7 are to be served concurrently with each other and with the sentence imposed for count 2.
(5) The sentences for counts 1 - 5 and 7 are taken to have commenced on 30 June 2017.
(6)The appellant remains eligible for parole.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
CR
ASSOCIATE TO THE HONOURABLE JUSTICE MITCHELL3 AUGUST 2018
16
6
1