Stickland v The State of Western Australia
[2005] WASCA 115
•23 JUNE 2005
STICKLAND -v- THE STATE OF WESTERN AUSTRALIA [2005] WASCA 115
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2005] WASCA 115 | |
| THE COURT OF APPEAL (WA) | |||
| Case No: | CCA:191/2004 | 20 MAY 2005 | |
| Coram: | WHEELER JA ROBERTS-SMITH JA PULLIN JA | 23/06/05 | |
| 16 | Judgment Part: | 1 of 1 | |
| Result: | Application for leave to appeal dismissed in respect of IND 438 of 2004, IND 437 of 2004 and IND 618 of 2004 Application for extension of time dismissed in respect of IND 434 of 2004 | ||
| B | |||
| PDF Version |
| Parties: | DELVILLE JAMES STICKLAND THE STATE OF WESTERN AUSTRALIA |
Catchwords: | Appeal Criminal law Application for leave to appeal against sentence Application for extension of time in which to appeal Whether inadequate account taken of plea of guilty Whether infringement of totality principle Whether unjust for sentence imposed after retrial to exceed that imposed at first trial Rule of restraint Whether aggregate sentence of 10 years manifestly excessive |
Legislation: | Nil |
Case References: | Campbell v The Queen, unreported; FCA; 11 September 1996 Dempsey v The Queen, unreported; CCA SCt of WA; Library No 960059; 9 February 1996 Gilmore (1979) 1 A Crim R 416 R H McL v The Queen (2000) 203 CLR 452 R v Bedford (1986) 5 NSWLR 711 R v Chen [1993] 2 VR 139 Williams v The Queen (No 2) [1982] WAR 281 De Luce v The Queen, unreported; CCA SCt of WA; Library No 960375; 19 July 1996 Germain v The State of Western Australia [2004] WASCA 293 Indich v The Queen [1999] WASCA 146 Jarvis v The Queen (1998) 20 WAR 201 Jones v The Queen [2003] WASCA 255 Mill v The Queen (1988) 166 CLR 59 Pearce v The Queen (1998) 194 CLR 610 Postiglione v The Queen (1997) 189 CLR 295 R v Dickens (2004) 147 A Crim R 343 R v Everett (1994) 73 A Crim R 550 R v Hannes (2002) 173 FLR 1 R v Hough [2002] WASCA 42 R v Krakouer (1999) 107 A Crim R 408 R v MM (2002) 135 A Crim R 216 Rogers v The Queen [2004] WASCA 147 Trescuri v The Queen [1999] WASCA 172 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : STICKLAND -v- THE STATE OF WESTERN AUSTRALIA [2005] WASCA 115 CORAM : WHEELER JA
- ROBERTS-SMITH JA
PULLIN JA
- Applicant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram : EATON DCJ
File No : IND 434 of 2004
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram : H H JACKSON DCJ
File No : IND 438 of 2004, IND 437 of 2004, IND 618 of 2004
(Page 2)
Catchwords:
Appeal - Criminal law - Application for leave to appeal against sentence - Application for extension of time in which to appeal - Whether inadequate account taken of plea of guilty - Whether infringement of totality principle - Whether unjust for sentence imposed after retrial to exceed that imposed at first trial - Rule of restraint - Whether aggregate sentence of 10 years manifestly excessive
Legislation:
Nil
Result:
Application for leave to appeal dismissed in respect of IND 438 of 2004, IND 437 of 2004 and IND 618 of 2004
Application for extension of time dismissed in respect of IND 434 of 2004
Category: B
Representation:
Counsel:
Applicant : Mr S D Freitag
Respondent : Mr L P Rayney & Mr B M Hollingworth
Solicitors:
Applicant : D G Price & Co
Respondent : State Director of Public Prosecutions
(Page 3)
Case(s) referred to in judgment(s):
Campbell v The Queen, unreported; FCA; 11 September 1996
Dempsey v The Queen, unreported; CCA SCt of WA; Library No 960059; 9 February 1996
Gilmore (1979) 1 A Crim R 416
R H McL v The Queen (2000) 203 CLR 452
R v Bedford (1986) 5 NSWLR 711
R v Chen [1993] 2 VR 139
Williams v The Queen (No 2) [1982] WAR 281
Case(s) also cited:
De Luce v The Queen, unreported; CCA SCt of WA; Library No 960375; 19 July 1996
Germain v The State of Western Australia [2004] WASCA 293
Indich v The Queen [1999] WASCA 146
Jarvis v The Queen (1998) 20 WAR 201
Jones v The Queen [2003] WASCA 255
Mill v The Queen (1988) 166 CLR 59
Pearce v The Queen (1998) 194 CLR 610
Postiglione v The Queen (1997) 189 CLR 295
R v Dickens (2004) 147 A Crim R 343
R v Everett (1994) 73 A Crim R 550
R v Hannes (2002) 173 FLR 1
R v Hough [2002] WASCA 42
R v Krakouer (1999) 107 A Crim R 408
R v MM (2002) 135 A Crim R 216
Rogers v The Queen [2004] WASCA 147
Trescuri v The Queen [1999] WASCA 172
(Page 4)
1 WHEELER JA: I have had the advantage of reading in draft the reasons for decision of Pullin JA. I agree with those reasons and have nothing to add.
2 ROBERTS-SMITH JA: I have read the draft reasons prepared by Pullin JA. I agree with the reasons and conclusions reached by his Honour and have nothing further to add.
3 PULLIN JA: This is an application for leave to appeal against the sentences imposed by their Honours Judge H H Jackson and Judge Eaton in the District Court for sex offences committed by the applicant against six boys. The application for leave to appeal against Judge Eaton's sentences is almost 7 months out of time and so the applicant seeks an extension of time.
4 The applicant is 59 years old. In the period between 31 December 1979 and 4 December 1986 the applicant lived in a country town in the south-west. He was a manager of a local supermarket and was a prominent member of the local community being involved in sport, a group leader of local scouts and a deputy rescue officer with the State Emergency Service. His activity as a leader of the local scouting movement brought him into contact with a number of boys. The applicant and his wife were close friends of the parents of some of the boys. I will give an example of how the applicant gained access to his victims. One of those boys, whom I will call "complainant 1", was 12 years old and in his first year of high school when the applicant offered him a job at the store as a "box boy", a casual employment for children working after school. He took the job and worked after school each Friday and on Saturday. The boy was then subjected to sexual dealings over a number of years. The first indictment in the series was Indictment 433 of 2004. I will set out the terms of the indictment which resulted in a trial before Martino DCJ and a jury on 3 September 2004. It read:
"(1) On a date unknown between 31 December 1979 and 1 January 1982 … DELVILLE JAMES STICKLAND unlawfully and indecently assaulted [complainant 1] a male person by fondling his penis.
(2) AND FURTHER THAT on a date unknown between 31 December 1979 and 1 January 1982 … and on the same occasion as in count (1) DELVILLE JAMES
(Page 5)
- STICKLAND unlawfully and indecently assaulted [complainant 1] a male person by sucking his penis.
- (4) AND FURTHER THAT on a date unknown between 28 June 1980 and 1 January 1982 … DELVILLE JAMES STICKLAND unlawfully and indecent assaulted [complainant 1] a male person by sucking his penis.
(6) AND FURTHER THAT on a date unknown between 3 December 1981 and 3 December 1984 … DELVILLE JAMES STICKLAND unlawfully and indecently dealt with [complainant 2] a child under the age of 14 years by sucking his penis.
(7) AND FURTHER THAT on a date unknown between 3 December 1981 and 3 December 1984 … DELVILLE JAMES STICKLAND unlawfully and indecently dealt with [complainant 2] a child under the age of 14 years by sucking his penis.
(8) AND FURTHER THAT on a date unknown between 3 September 1983 and 4 September 1985 … DELVILLE JAMES STICKLAND unlawfully and indecently dealt with [complainant 3] a child under the age of 14 years by sucking his penis."
5 On each of counts 1, 2 and 4 he was convicted and sentenced by Judge Martino to 15 months' imprisonment, those sentences to be served concurrently. In relation to counts 6 and 7 he was convicted and sentenced to 32 months' imprisonment to be served concurrently on each other but cumulative on counts 1, 2 and 4 and on count 8 he was sentenced to 32 months' imprisonment cumulative on the other charges, this making a total of 6 years and 7 months backdated to commence on 14 July 2003. The applicant was acquitted of the other counts. No complaint is made about the sentences imposed by Judge Martino.
6 On 10 September 2004 after a trial before Judge Eaton and a jury, the applicant was convicted of seven counts on Indictment 434 of 2004, details of which are as follows:
"(1) On a date unknown between 14 September 1980 and 1 January 1982 … DELVILLE JAMES STICKLAND unlawfully and indecently assaulted [complainant 1] a male person by fondling his penis.
(Page 6)
- (2) AND FURTHER THAT on the same date and at the same place as in count (1) DELVILLE JAMES STICKLAND committed an act of gross indecency with [complainant 1] a male person between the ages of 13 and 16 years by sucking his penis.
(3) AND FURTHER THAT on a date unknown between 31 December 1980 and 4 September 1984 … DELVILLE JAMES STICKLAND unlawfully and indecently dealt with [complainant 3] a child under the age of 14 years by fondling his penis.
(4) AND FURTHER THAT on the same date and at the same place as in count (3) DELVILLE JAMES STICKLAND unlawfully and indecently dealt with [complainant 3] a child under the age of 14 years by sucking his penis.
(5) AND FURTHER THAT on a date unknown between 8 November 1981 and 9 November 1983 … DELVILLE JAMES STICKLAND committed an act of gross indecency with [complainant 4] a male person between the ages of 13 and 16 years by sucking his penis.
(6) AND FURTHER THAT on the same date and at the same place as in count (5) DELVILLE JAMES STICKLAND committed an act of gross indecency with [complainant 4] a male person between the ages of 13 and 16 years by sucking his penis.
(7) AND FURTHER THAT on the same date and at the same place as in count (5) DELVILLE JAMES STICKLAND committed an act of gross indecency with [complainant 4] a male person between the ages of 13 and 16 years by sucking his penis."
7 He was sentenced by Judge Eaton to 16 months and 20 months on counts 1 and 2 respectively. They were to be served concurrently. On counts 3 and 4 he was sentenced to 32 months on each count, to be served concurrently with each other, but cumulatively on counts 1 and 2; on counts 5, 6 and 7 he was sentenced to 20 months on each, those sentences to be served concurrently, but cumulatively on the other two sets of cumulative sentences, that making a total of 6 years' imprisonment. Eaton DCJ made this partly concurrent and partly cumulative on the sentences imposed by Martino DCJ. He did this by directing that the
(Page 7)
- sentences commence on 14 July 2005. This has the effect of adding 1 year and 5 months to the sentence imposed by Martino DCJ. In other words, 4 years and 7 months of the sentence imposed by Martino DCJ will be served concurrently with the sentence imposed by Eaton DCJ.
8 The next trial was on indictment 438 which was heard before H H Jackson DCJ and a jury on 28 September 2004. It read as follows:
"(1) On a date unknown between 27 November 1978 and 28 November 1981 … DELVILLE JAMES STICKLAND unlawfully and indecently dealt with [complainant 5] a child under the age of 14 years by fondling his penis.
(2) AND FURTHER that on a date unknown between 27 November 1980 and 28 November 1983 … DELVILLE JAMES STICKLAND unlawfully and indecently assaulted [complainant 5] a male person by fondling his penis.
(3) AND FURTHER that on a date unknown between 27 November 1981 and 28 November 1983 … DELVILLE JAMES STICKLAND unlawfully and indecently assaulted [complainant 5] a male person by fondling his penis.
(4) AND FURTHER that on a date unknown between 27 November 1981 and 28 November 1983 … and on the same occasion as count (3) DELVILLE JAMES STICKLAND committed an act of gross indecency with [complainant 5] a male person by sucking his penis."
9 The applicant was convicted after a trial on all four of these counts and on 10 November 2004 Judge H H Jackson imposed a sentence of 2 years' imprisonment in relation to each count. These were ordered to be served concurrently with each other but cumulatively on the earlier sentences.
10 There were two other indictments. Indictment 437 of 2004 read:
"(1) On a date unknown between 31 December 1980 and 24 December 1983 … DELVILLE JAMES STICKLAND unlawfully and indecently dealt with [complainant 6] a child under the age of 14 years by sucking his penis.
(Page 8)
- (2) AND FURTHER that on a date unknown between 23 December 1980 and 1 January 1983 … DELVILLE JAMES STICKLAND unlawfully and indecently dealt with [complainant 6] a child under the age of 14 years by sucking his penis."
11 Indictment 618 of 2004 read:
"(1) On a date unknown between 31 December 1979 and 1 January 1981 … DELVILLE JAMES STICKLAND unlawfully and indecently dealt with [complainant 2] a child under the age of 14 years by fondling his penis.
(2) AND FURTHER THAT on a date unknown between 31 December 1979 and 1 January 1981 … and on the same occasion as in count (2) DELVILLE JAMES STICKLAND unlawfully and indecently dealt with [complainant 2] a child under the age of 14 years by sucking his penis.
(3) AND FURTHER THAT on a date unknown between 31 December 1979 and 1 January 1981 … DELVILLE JAMES STICKLAND unlawfully and indecently dealt with [complainant 2] a child under the age of 14 years by sucking his penis.
(4) AND FURTHER THAT on a date unknown between 31 December 1984 and 4 December 1986 … DELVILLE JAMES STICKLAND committed an act of gross indecency with [complainant 2] a male person by sucking his penis."
12 In relation to these last two indictments, the applicant pleaded guilty before Chief Judge Kennedy but was sentenced by Judge H H Jackson on 10 November 2004. He was sentenced to 2 years' imprisonment in relation to each of the counts on those two indictments, to be served concurrently with the 2 year aggregate sentence imposed in relation to Indictment 438.
13 The end result was that he was sentenced on all of these indictments to 10 years' imprisonment. The counts involved offences on six complainants. He was made eligible for parole.
(Page 9)
Earlier trial
14 It is of significance to the applicant's submissions that the applicant was originally indicted and tried in 2001 on one indictment, containing 63 counts including indecent dealing, indecent assault and gross indecency, there being a total of eight complainants, six of whom were the complainants referred to above. After the trial in 2001 before O'Sullivan DCJ and a jury the applicant was convicted on this indictment of 20 counts of indecent dealing, six counts of indecent assault and 15 counts of gross indecency against the eight complainants. He was acquitted of 22 counts. He was sentenced under the old sentencing provisions on 21 December 2001 to 12 years' imprisonment. However, those sentences did not include sentences for the 15 acts of gross indecency.
15 He appealed against his convictions, and the appeal was allowed on the ground that it was unfair to have tried all charges together. This is why he was then charged on five separate indictments. In fact there were indictments other than the five listed above but they were the subject of nolle prosequi.
16 In relation to the 2001 convictions and sentences the prosecution filed a notice of appeal alleging that Judge O'Sullivan erred in failing to impose sentences in respect of the 15 gross indecency offences. The appeal was not dealt with because the appellant's appeal against conviction succeeded. The reasons why Judge O'Sullivan declined to sentence on the gross indecency convictions are not important for present purposes. What is important is that he has now been convicted and sentenced for some of those gross indecency offences.
17 The applicant seeks leave to appeal against the sentences imposed by his Honour Judge H H Jackson and his Honour Judge Eaton. The combined grounds of appeal read:
"Ground One
His Honour Judge Jackson, the final Learned Sentencing Judge, erred by making the sentences he imposed for the offences contained in Indictments 438 of 2004, 437 of 2004 and 618 of 2004 cumulative upon the Applicant's existing sentences, previously handed down by their Honours Judge Martino and Judge Eaton.
Particulars
(Page 10)
- a. His Honour took inadequate account of the totality principle in sentencing the Applicant.
b. Public policy considerations indicate that the end sentence should not exceed that imposed at the first trial for the following reasons:
i. The Applicant successfully appealed the original convictions (see Stickland v the Queen [2002] WASCA 339);
ii. The original convictions resulted in a sentence of 12 years with eligibility for parole after 6 years; and
iii. The end result of the new proceedings was that the Applicant was convicted of 18 less charges and offences against two fewer complainants."
c. His Honour took inadequate account of the Applicant's plea of guilty to two Indictments containing six charges and scheduled to occupy four days of court time.
Ground Two
His Honour Judge Eaton, the second Learned Sentencing Judge erred by imposing a sentence which, whilst not manifestly excessive in isolation, did not take sufficient account of the effect of the totality principle. The Court should exercise its discretion to reduce that sentence, or to make it concurrent to a greater extent with the sentence imposed by His Honour Judge Martino, for the reasons referred to in Ground One.
Ground Three
The overall sentence the Applicant is now required to serve should be amended to reflect the circumstances and principles referred to in Ground One, and should involve the imposition of a non-parole period that is less than that imposed following the original convictions."
Inadequate account taken of plea of guilty
18 I will deal first with ground 1(c). This alleges that Judge H H Jackson took inadequate account of the applicant's plea of guilty in
(Page 11)
- relation to Indictment 437 of 2004 and Indictment 618 of 2004. This allegation can be disposed of very quickly. His Honour when sentencing said:
"… in the circumstances, the main, perhaps the only, issue before me comes down to that of totality, combined with the questions of the discount for the pleas of guilty on the two matters that I have mentioned and the reduction in sentence as a result of the changes made by Parliament to the sentencing laws …"
"… given the matters that I have referred to, in particular the totality and the plea of guilty issues, those terms can be served concurrently with the terms that I have just handed down in respect of indictment 437 [sic]of 2004."
20 It is clear therefore that his Honour did take account of the applicant's plea of guilty in relation to the two indictments. In any event, by making the sentences on these two indictments concurrent with the other sentences there was no further reduction which could be given. This ground must therefore fail.
Totality
21 I now turn to ground 1(a). The charges on which the applicant was sentenced were, in relation to each count, representative of a course of conduct over a long period of time. The point was made and noted by his Honour Judge Jackson that there were no inducements made, nor bribes made to the boys and no violence or threats were made to them. However, the relationship of trust which had been established either between the applicant and the complainants or the applicant and the families of the complainants overwhelmed those considerations. As his Honour Judge Jackson said, the offences were very serious and he noted the relationships of trust which the applicant had with them as employer, as their scout master and as a friend of their parents. Judge Jackson said:
"You gained the trust of the boys and their family and then preyed on them, given their young age and their immaturity, for your own gratification."
(Page 12)
22 His Honour also noted a number of mitigating facts including the early tragedy of the applicant's brother's death, the abuse that the applicant he said he himself suffered as a boy, his experiences in Vietnam as a soldier where he was wounded on two occasions, his marriage break-up subsequent to the first trial, the fact that he had no other record and the lack of any convictions since the mid-1980s, along with his work and community involvement and the diagnosis of post-traumatic stress disorder. As I have already noted, his Honour also took into account the fact that there had been a plea of guilty in relation to the charges on the other indictments.
23 Judge H H Jackson (and Judge Eaton) were acutely conscious of the need to consider totality and expressly mentioned totality during their sentencing remarks. The orders of concurrency (and partial concurrency in the case of Judge Eaton) were employed to effect a reduction in the total of the sentences which would otherwise have been served. Thus it cannot be shown that the Judges erred by not taking into account the totality principle. I will deal with the argument that "inadequate" account was taken of the totality principle below.
Re-sentencing after successful appeal
24 The main point pursued in the appeal was the applicant's argument that he should not have received a greater aggregate sentence than was imposed after the 2001 trial. The aggregate sentence imposed after the 2001 trial before O'Sullivan DCJ and a jury was 12 years' imprisonment.
25 The aggregate sentence imposed in respect of the indictments dealt with by Martino DCJ, Eaton DCJ and H H Jackson DCJ was 10 years' imprisonment. To compare the two it is necessary to bear in mind that the 2001 sentence was imposed under the "old provisions" and the new sentences were imposed under the "new provisions". (See Sch 1 to the Sentencing Act). That means that the aggregate 10 year sentence imposed by Martino DCJ, Eaton DCJ and H H Jackson DCJ equates to a 15 year sentence under the old provisions.
26 It is true usually a successful appellant will not receive a longer sentence after conviction on re-trial than he or she has received at the original trial: See R H McL v The Queen (2000) 203 CLR 452 where McHugh, Gummow and Hayne JJ said at [72]:
"Ordinarily but not invariably, a successful appellant should not receive a longer sentence after conviction on re-trial than he or she has received at the original trial. If the sentencing judge
(Page 13)
- at the re-trial thinks that the original sentence was manifestly inadequate, it is open to that judge in the exercise of the sentencing discretion to give a sentence higher than that imposed on the first occasion. But an exercise of discretion by a sentencing judge that increases the original sentence given to the accused is necessarily rare. That is because such an increase may be perceived, by the public and the accused, as containing a retributive element imposed because the accused had successfully appealed against his or her earlier conviction or sentence. If the raising of a sentence after a successful appeal became common, it might discourage appeals. Such a result would be contrary to the public interest, for an organised society has a vital interest in the proper administration of its criminal justice system. Rights of appeal are an important means of preventing the perpetuation of error in criminal trials."
27 Their Honours cited the following cases as support for that proposition: Gilmore (1979) 1 A Crim R 416; Williams v The Queen (No 2) [1982] WAR 281; R v Bedford (1986) 5 NSWLR 711; R v Chen [1993] 2 VR 139; Campbell v The Queen, unreported; FCA; 11 September 1996. To similar effect, Gleeson CJ, Gaudron and Callinan JJ at [23] in R H McL's case said, that in the absence of countervailing considerations, the sentences imposed following the first trial should be regarded as the upper limit of the sentence to be imposed following the second trial, otherwise an offender will be seen to have been worse off as a result of having brought a successful appeal against a conviction.
28 See also Kirby J at [140] in R H McL who referred to the "rule of restraint". Like the other members of the Court he acknowledged that it was not "a rigid rule".
29 It is relevant to know whether the Crown appealed against the sentence passed following the first conviction. The re-sentencing Judge may ask himself or herself whether the sentence was one which would have survived an appeal. See Williams' case (supra) at 283 per Burt CJ.
30 The applicant submits that the circumstances at the time of re-sentencing was more "mitigatory" than those on which the first sentence was based because:
(a) there were less convictions following the retrials;
(b) those convictions related to two less complainants;
(Page 14)
- (c) there had been pleas of guilty by the applicant to some 6 counts on the retrials compared with no pleas of guilty on the original trial;
(d) there had been significant further legal cost to the applicant to conduct the retrials and his financial position had deteriorated;
(e) the applicant's medical situation had, if anything, become worse since the original trial.
31 The applicant accepts that there were no sentences imposed by O'Sullivan DCJ after the 2001 trial in relation to the convictions for gross indecency. The applicant also acknowledges that following the retrial, six of those convictions were sustained and sentences were then imposed. The applicant submits that if there had been sentences for the gross indecency matters in 2001, there would not have been additional time added to the sentence for the applicant. The applicant submits that the gross indecency convictions were of the same nature as other offences for which the applicant was being sentenced, and the gross indecency occurred during the same time period and at the same place as the other offences and would have been considered part of the same course of offending.
32 Those submissions do not persuade me that there was any error. Because of the unfolding of circumstances, it is difficult to compare the sentences imposed in 2001 and those which have now been imposed. It is clear that this is not a straight-forward case of a person being convicted of X number of offences, successfully appealing and then being retried, convicted and sentenced on the same X offences.
33 The correct analysis is as follows. The applicant was convicted on 41 charges at his initial 2001 trial but was sentenced on only 26 of the charges. After the retrials and subsequent pleas of guilty, he was sentenced for 23 offences rather than 26 offences. Judge O'Sullivan in 2001 sentenced the applicant in relation to 13 offences involving oral sex and 13 offences involving touching. In total their Honours Judge Martino, Judge Eaton and Judge H H Jackson sentenced the applicant on 16 offences involving oral sex and seven involving touching. After his 2001 convictions, he was sentenced for offences he had committed against eight victims. After the retrials and pleas of guilty he was sentenced in relation to offences concerning six victims. (The offences against the two other complainants in 2001 were in relation to isolated incidents and there was no continuing offending). Of the six victims the subject of the post-2001 indictments, five were dealt with by the applicant over a period of years.
(Page 15)
34 The applicant's submission that the gross indecency charges would not have attracted any additional sentence in 2001 is a submission that I cannot accept. The gross indecency counts all involved oral sex being committed upon the complainants. These were more serious than those offences involving the applicant merely touching the penis of the complainant. It is also important to note that the Crown appealed against Judge O'Sullivan's decision not to sentence on the gross indecency convictions. I have mentioned that this appeal did not continue because of the successful appeal against conviction. I have already mentioned that it is not necessary to assess the likely prospects of the Crown appeal because there have now been convictions for those offences and there is no appeal against those convictions.
35 For all of those reasons, an effective comparison of the 2001 aggregate sentence and the post-2001 sentences becomes almost impossible. The applicant has now been sentenced for a different combination of offences in a different combination of circumstances from those for which he was originally sentenced. The bulk of offences dealt with by Judges Martino, Eaton and H H Jackson were offences involving oral sex, whereas before Judge O'Sullivan, there was an equal number of oral sex offences and touching offences. The oral sex offences dealt with in 2001 were also less in number. In my opinion therefore, it was impossible to say that the "rule of restraint" should be applied in this case.
36 Having said that, I observe that both Judge Eaton and Judge H H Jackson were well aware of the fact that Judge O'Sullivan had imposed an aggregate sentence of 12 years' imprisonment. The "rule of restraint" requires no more than that the re-sentencing Judges have regard to the earlier sentences and both Judges did have regard to them.
37 In my opinion, if this appeal is to succeed, it will be on the basis that the aggregate sentence was manifestly excessive. This contention appears under the guise of the ground of appeal alleging that "inadequate" account was taken of the totality principle. In my opinion, the aggregate sentence of 10 years (under the new provisions) was not manifestly excessive. In Dempsey v The Queen, unreported; CCA SCt of WA; Library No 960059; 9 February 1996 at 6 - 7 a list of factors ordinarily to be taken into account when sentencing for offences of this kind was set out by Murray J. By considering those factors, it can be seen that the conduct in this case demonstrated a significant degree of perversion and deviance. The majority of the offences involved the applicant using the victims for his own sexual gratification. The applicant was approximately 20 years older than the victims. He preyed on their youth and innocence. The
(Page 16)
- applicant was the employer, scout leader or (in some cases, and) a family friend of some victims. He was a trusted member of the community and it was this trust that enabled him to perpetrate these crimes without detection over a long period of time and on a number of victims. The applicant's conduct was predatory. He surrounded himself with young boys to facilitate the commission of the offences. The offences were committed over a period of seven years and the boys were in their pre-teens or early teens. Some of the victims were particularly vulnerable, one of them being a boy whose father had died the same year when the boy was not then 10. The applicant did not plead guilty to any charges until after the final trial before Judge H H Jackson. There has been an on-going impact on some of the victims. The applicant did not display any concern for the victims at the time of committing the offences and continued to deny commission of the offences up until October 2004. This type of offence continues to be prevalent in the community and there is a need for general deterrence and recognition of the seriousness of the offences must be reflected in appropriate sentences.
38 Having regard to the circumstances set out above, the points made in mitigation, and the fact that no complaint is made about the sentence of 6 years 7 months imposed by Judge Martino, 10 years' imprisonment is within the range of the exercise of a sound sentencing discretion. In my opinion the aggregate term of 10 years' imprisonment is not manifestly excessive.
39 For those reasons I would refuse the application for leave in relation to the sentences imposed by Judge H H Jackson, and I would dismiss the application for an extension of time to apply for leave to appeal against the sentences imposed by Judge Eaton.
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