SWD v The State of Western Australia

[2012] WASCA 76

SWD -v- THE STATE OF WESTERN AUSTRALIA [2012] WASCA 76

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2012] WASCA 76
Court:	THE COURT OF APPEAL (WA)
Case No:	CACR:137/2011	Heard:	7 MARCH 2012
Coram:	McLURE P MURPHY JA MAZZA JA	Delivered:	3/04/12
No of pages:	22	Judgment Part:	1 of 1
Result:	Application for leave to appeal on ground 1 dismissed Appeal dismissed on ground 2
Category:	B
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Parties:	SWD THE STATE OF WESTERN AUSTRALIA
Catchwords:	Criminal law and procedure Appeal against sentence Sexual offences against son and daughter Six counts of sexual penetration without consent Individual sentence of 8 years' imprisonment Aggregate sentence of 14 years' imprisonment Whether sentence manifestly excessive Whether total effective sentence infringed the totality principle Turns on own facts
Legislation:	Criminal Code (WA), s 329(2)
Case References:	Chan v The Queen (1989) 38 A Crim R 337 Deering v The State of Western Australia [2007] WASCA 212 GGM v The State of Western Australia (No 2) [2011] WASCA 259 GHS v The State of Western Australia [2006] WASCA 42 Giglia v The State of Western Australia [2010] WASCA 9 GMS v The State of Western Australia [2009] WASCA 107 KMB v The State of Western Australia [2010] WASCA 212 Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665 M v The State of Western Australia [2007] WASCA 238 MAS v The State of Western Australia [2012] WASCA 36 PDS v The State of Western Australia [2006] WASCA 20 Pindan v The Queen (Unreported, WASCA, Library No 970530, 2 October 1997) RDC v The State of Western Australia [2012] WASCA 16 RMS v The State of Western Australia [2010] WASCA 76 Roffey v The State of Western Australia [2007] WASCA 246 Samson v The State of Western Australia [2011] WASCA 173 The State of Western Australia v Prince [2011] WASCA 22 Victor v The State of Western Australia [2011] WASCA 94 VIM v The State of Western Australia [2005] WASCA 233; (2005) 31 WAR 1 Wilson v The State of Western Australia [2010] WASCA 82 Wimbridge v The State of Western Australia [2009] WASCA 196

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : SWD -v- THE STATE OF WESTERN AUSTRALIA [2012] WASCA 76 CORAM : McLURE P

MURPHY JA
MAZZA JA

HEARD : 7 MARCH 2012 DELIVERED : 3 APRIL 2012 FILE NO/S : CACR 137 of 2011 BETWEEN : SWD

Appellant

AND

THE STATE OF WESTERN AUSTRALIA
Respondent

ON APPEAL FROM:

Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA

Coram : GOETZE DCJ

File No : IND 1105 of 2010

Catchwords:

Criminal law and procedure - Appeal against sentence - Sexual offences against son and daughter - Six counts of sexual penetration without consent - Individual sentence of 8 years' imprisonment - Aggregate sentence of 14 years'

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imprisonment - Whether sentence manifestly excessive - Whether total effective sentence infringed the totality principle - Turns on own facts

Legislation:

Criminal Code (WA), s 329(2)

Result:

Application for leave to appeal on ground 1 dismissed

Appeal dismissed on ground 2

Category: B

Representation:

Counsel:

Appellant : Mr S Vandongen SC
Respondent : Mr J A Scholz

Solicitors:

Appellant : Legal Aid (WA)
Respondent : Director of Public Prosecutions (WA)

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

Chan v The Queen (1989) 38 A Crim R 337
Deering v The State of Western Australia [2007] WASCA 212
GGM v The State of Western Australia (No 2) [2011] WASCA 259
GHS v The State of Western Australia [2006] WASCA 42
Giglia v The State of Western Australia [2010] WASCA 9
GMS v The State of Western Australia [2009] WASCA 107
KMB v The State of Western Australia [2010] WASCA 212
Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665
M v The State of Western Australia [2007] WASCA 238
MAS v The State of Western Australia [2012] WASCA 36
PDS v The State of Western Australia [2006] WASCA 20

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Pindan v The Queen (Unreported, WASCA, Library No 970530, 2 October 1997)
RDC v The State of Western Australia [2012] WASCA 16
RMS v The State of Western Australia [2010] WASCA 76
Roffey v The State of Western Australia [2007] WASCA 246
Samson v The State of Western Australia [2011] WASCA 173
The State of Western Australia v Prince [2011] WASCA 22
Victor v The State of Western Australia [2011] WASCA 94
VIM v The State of Western Australia [2005] WASCA 233; (2005) 31 WAR 1
Wilson v The State of Western Australia [2010] WASCA 82
Wimbridge v The State of Western Australia [2009] WASCA 196


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1 McLURE P: I agree with Murphy JA.

MURPHY JA:

Introduction

2 This case involves an appeal against sentence in respect of a total of six counts of the sexual penetration of two children. One was the appellant's son, aged 10, and the other was his daughter, aged 7 to 8 years. The appellant received a total effective sentence in respect of all six offences of 14 years with eligibility for parole. The appellant was aged 47 to 50 years at the time of the offences.

The offences

3 In or about September 1997, the appellant's wife was in hospital for an operation. The appellant had the care of his son, then aged 10, at home. The appellant went into the bedroom where his son was sleeping and sexually penetrated him. There were two related events. The first was forceful digital penetration of his son's anus (count 1). The second was forceful penile penetration of his son's anus (count 2). Severe pain was inflicted. In the course of committing the offences, the appellant held his hand over his son's mouth to stop him from crying out. The appellant told his son that 'big boys don't cry'. After the offences, the appellant told his son not to tell anyone about what had happened and added that if his son did tell anyone, he (the appellant) would kill the mother. The son believed the threat to be credible. He knew that the appellant kept a gun and had witnessed the appellant being violent towards his mother and had been the subject of other violence from the appellant himself. In the ensuing days, the son was sufficiently distraught that he made plans to leave home, although those plans were never put into effect. The offences had not been isolated. There had been other uncharged instances of sexual conduct towards the son by the appellant prior to the commission of these offences in September 1997.

4 By 1999, the appellant had separated from his wife. His children, including his daughters from the marriage, stayed with him overnight for a period of time on access visits. In or about mid-1999, the appellant sexually penetrated his elder daughter, 'S', on four separate occasions when she stayed at his home. She was 7 to 8 years old at the time. The four occasions were not isolated, and represented a course of sexual conduct over a six-month period.

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5 On one occasion (count 3), when S was sleeping, the appellant picked her up and took her to his bed and forcefully penetrated her vagina with his penis. He told her that she 'wanted this' and 'deserved this'. He used his body weight whilst on top of her to stop any physical resistance. He put a pillow on her head to stop her from calling for help. The child felt that she was suffocating. The appellant's youngest daughter 'K', who at that time was about 6 years old, was disturbed by the noise and came to investigate. She had heard this noise before, but had not previously attempted to investigate its source. K saw what was happening, and despite her age, comprehended to some extent the seriousness of the appellant's conduct. She smashed the bedside lamp over the appellant's head to stop the assault, and took S by the hand and pulled her to safety in the bathroom, where they locked themselves in. The appellant yelled at them to unlock the door for some time before eventually tiring of waiting for them to come out. The two girls took that opportunity to run next door to hide.

6 On another occasion (count 4), S and K had fallen asleep together on the appellant's bed. The appellant removed K to the lounge room, and then went back to where S was sleeping. He placed a pillow over S's head and forcefully penetrated her vagina with his penis.

7 On the next occasion (count 5), S was staying alone with the appellant. The other children were elsewhere. She was asleep in a spare bedroom when the appellant came into her room and forcefully penetrated her vagina with his penis. He did not place a pillow over her head on this occasion - there was no-one else at home to hear her cries.

8 The next occasion (count 6) occurred after the appellant, his children and another family had returned home from a day trip to Fremantle. S and K were sleeping together on the couch. The appellant removed K to the spare bedroom. He returned to the lounge room, where S was sleeping on the couch and forcefully penetrated her vagina with his penis. S thought that he had placed a pillow over her face on this occasion, too.

9 The four episodes referred to above were not isolated, and as I have indicated, were representative of sexual conduct by the appellant towards his daughter over a period of approximately six months. There was no voluntary cessation of the conduct. The abuse only ended when the daughter refused to attend overnight visitations with her father.

10 In order to cover up his conduct, the appellant threatened to come after S, her brothers and sister, and to kill them, if she told anyone.

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S knew that the appellant had a gun and believed his threats. K was not threatened by the appellant, but for some time did not tell anyone what she had seen as she had promised S not to tell anyone.

11 The forceful penetration of his son's anus caused tearing, severe pain and discomfort for some days. The appellant's forceful penetration of his daughter's vagina caused her immense pain. She also suffered very serious injury. Although the precise occasion or occasions could not be pinpointed, the appellant had, by his penetration of her vagina, torn through the skin between the vagina and anus. The injury was so severe it had torn through the muscle layers in this area as well, including the pelvic floor muscles. The daughter's vagina is now classed as very abnormal and requires reconstructive surgery. The surgery would require a general anaesthetic, and may need to be delayed until after she has finished having children.

The effect on the children

12 The son declined to prepare a victim impact statement. However, the sentencing judge noted that the negative impact of the appellant's offending was painfully obvious during the course of his evidence. The son felt deep shame, embarrassment, hurt and disgust about the offending and found it very difficult to give evidence.

13 The daughter S provided a powerful and compelling victim impact statement. She described, amongst other things, that:

(a) she was terrified that she would fall pregnant: 'I didn't know any better, and I thought how horrible it would be to go to the toilet and a baby might come out, I was only 8 at the time';

(b) she was now very afraid of most older men;

(c) she spent her life in constant physical and emotional pain: 'When I was little I couldn't go horse riding, ride my bike, I even struggled at times to walk because the pain was so severe. Now the emotional pain, over takes the physical pain';

(d) she has very limited control over her bladder now;

(e) she has no feeling in her vagina during sex;

(f) she has a horrible sense that she is 'unloveable';

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(g) she has an abiding sense of unhappiness and she has 'always had this feeling of being dirty';

(h) she lacks confidence and has a feeling of detachment with her 'own body and life' and is 'totally void of feelings'.

The appellant's convictions and sentences

14 The appellant denied the offences.

15 On 25 February 2011, the appellant was convicted after trial in the District Court in relation to the above six offences. In relation to each count, he was charged and convicted of sexually penetrating a child known to be his lineal relative under s 329(2) of the Criminal Code (WA). As the offences were committed against his son and his daughter when they were under the age of 16 years, by s 329(9)(a) of the Criminal Code, he was liable to imprisonment for up to 20 years for each offence.

16 In relation to the offences against his son, he received a sentence of 4 years for the first count of digital-anal penetration and 6 years for the second count of penile-anal penetration. Those two sentences were ordered to be served concurrently. In relation to the offences against his daughter, he was sentenced to 8 years for each count, with each to be served concurrently. The sentences in respect of each victim were ordered to be served cumulatively. The total effective sentence for the offences against his son and his daughter was, accordingly, 14 years' imprisonment. There was eligibility for parole and the sentences were backdated to 1 February 2010.

17 The appellant showed no insight or remorse.

18 As to the appellant's denial of the offences, the judge said:

Now, your defence was really a litany of lies. The jury had no trouble in seeing through it. My own view is that much of your evidence was made up as you gave it.

To suggest that you didn't have a problem with drink or violence is quite ludicrous. There were Family Court orders preventing you from drinking during periods of access. There were violence restraining orders against you.

You also suggested that the family had gotten together and concocted their evidence. Now, that's really quite amazing in the circumstances of this case.

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You returned to Victoria in 2001. It wasn't until 2006 that [K] revealed her secret to her mother and it was much later before [S] went to the police. The family were advised to not discuss the case amongst themselves. They did not.

...

Your evidence reveals a total denial by you of your offending.

19 The judge also said, in relation to pre-sentencing and psychological reports, that:

I've had a pre-sentence report dated 27 April this year in which I'm told you remain in denial of your offending. The psychological report dated 4 April this year also denies any family violence which might have required your wife to call the police when she separated from you. Now, the evidence was that she did.

The psychological report tells me that you are not able to account for the reason why supervised access was required to the children when you returned to Perth. Well, clearly, you had a violence problem, you had a drinking problem, and there were Family Court orders.

You deny unsupervised access overnight save for about three occasions and we know that you had the children basically through the winter of 1999 when the offending against [S] was said to have occurred.

The report also says that you're of medium to low risk of re-offending, with a one in 10 chance of doing so in the next five years, but a thorough review was not possible given your denial of the present offending for which you've been convicted.

Grounds of appeal

20 The appellant appeals against sentence on two grounds. The first alleges that each of the sentences imposed was manifestly excessive. The second alleges a breach of the first limb of the totality principle.

21 Both grounds allege inferred, rather than express, error: KMB v The State of Western Australia [2010] WASCA 212 [87]; RDC v The State of Western Australia [2012] WASCA 16 [19].

22 The arguments with respect to each ground overlapped to a considerable extent. The appellant contended, in effect, that error is disclosed when regard is had to the sentencing authorities reviewed by the Court of Appeal in VIM v The State of Western Australia [2005] WASCA 233; (2005) 31 WAR 1 and in The State of Western Australia v Prince [2011] WASCA 22. Reference was made in particular to KMB v The State of Western Australia, PDS v The State of Western Australia

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[2006] WASCA 20 and GHS v The State of Western Australia [2006] WASCA 42. The appellant emphasised that, unlike cases such as GMS v The State of Western Australia [2009] WASCA 107 and KMB v The State of Western Australia, here it was accepted that the sexual contact was not a 'highly regular' occurrence in the sense that sexual contact did not occur daily or on every other day. The appellant also referred to the more recent authorities of GGM v The State of Western Australia (No 2) [2011] WASCA 259, MAS v The State of Western Australia [2012] WASCA 36 and RDC v The State of Western Australia. The appellant also drew attention to the judge's finding that the offences did not take place over an extended or extremely long period of time. Attention was also drawn to the personal circumstances of the appellant, namely, that he was 61 years of age at the time of sentencing and had no prior relevant criminal history; that at the time of sentencing, he was in a de facto relationship that had been ongoing for about four years; that he had not worked for about 10 years; that the majority of the appellant's family lived in Victoria; and that he was assessed as being at a medium to low risk of reoffending, although that assessment was qualified because a thorough review had not been possible due to the appellant's ongoing denials.

23 The appellant contended that:

(a) in none of the cases mentioned were sentences imposed for individual offences that are comparable to the individual sentences that were imposed on the appellant, particularly in relation to counts 2 to 6;

(b) although aggregate sentences have been imposed in other cases that are comparable to the 14-year term imposed on the appellant, when the offending behaviour and personal circumstances in each of the cases are considered, it can be seen that the overall sentence that was imposed on the appellant was outside the range of sentences customarily imposed for such offending.

24 On 31 October 2011, the appellant was given leave to appeal on ground 2. The question of leave in respect of ground 1 was referred to the hearing of the appeal. The appellant also requires an extension of time in which to apply for leave to appeal on ground 1, in relation to which, it was common ground, the principles outlined in Wimbridge v The State of Western Australia [2009] WASCA 196 [19] - [25], apply.

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Relevant principles

Principles of appellate review

25 The relevant principles governing an appellate court's review of sentencing were outlined by McLure P and Owen JA in Wilson v The State of Western Australia [2010] WASCA 82 [2]:

The relevant principles on which an appellate court operates are dictated by the Criminal Appeals Act 2004 (WA) and by previous decisions of the High Court and of this court that we are bound to follow or that represent persuasive authority. Those principles include the following.

1. The imposition of a sentence involves the exercise of a discretion. An appellate court can only intervene if the appellant demonstrates that the judge erred in exercising the discretion in one of two ways. The first is called express error and it involves acting on a wrong principle, for example, by mistaking the law, mistaking the facts, taking into account an irrelevant matter or failing to take into account a relevant consideration. The second is referred to as implied or inferred error. It arises where, although it is not possible to discover the exact nature of the error, the end result is so unreasonable or unjust that the court must conclude that a substantial wrong has occurred: House v The King (1936) 55 CLR 499, 505. In most instances a challenge based on implied error will involve the contention that an individual sentence is manifestly excessive (or inadequate) and (or) that the total effective term imposed for all charges offends the totality principle.

2. It follows that the appeal court will not intervene simply because the members of the court, had they been sentencing the offender at the original hearing, might have imposed a different sentence: House, 505.

3. Even if error is demonstrated the appellate court can intervene only if it is satisfied that a different sentence should have been imposed at the original hearing: Criminal Appeals Act s 31(4)(a).

4. An appellant must obtain leave to appeal on each ground that she or he wishes to advance in support of the appeal and the court must not grant leave unless it is satisfied that the ground has a reasonable prospect of succeeding: Criminal Appeals Act s 27(1) and (2).

5. To have a reasonable prospect of succeeding, a ground must have a rational and logical prospect of succeeding, or a real prospect of success: Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473 [25] - [61], especially [56].

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26 In Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665, the full bench of the High Court said [15]:

[A] court of criminal appeal may not substitute its own opinion for that of the sentencing judge merely because the appellate court would have exercised its discretion in a manner different from the manner in which the sentencing judge exercised his or her discretion. This is basic. The discretion which the law commits to sentencing judges is of vital importance in the administration of our system of criminal justice. (footnotes omitted)

Sexual offences against children - sentencing

27 The general principles were outlined by Buss JA, McLure P and Mazza JA agreeing, in RDC v The State of Western Australia [22] - [26]:

The primary sentencing considerations for offences of the kind in question are punishment of the offender, specific and general deterrence, and the protection of vulnerable children. See Woods v The Queen (1994) 14 WAR 341, 345 - 346 (Anderson J, Malcolm CJ & Seaman J agreeing); PP v The State of Western Australia [2004] WASCA 144 [14] (McLure J, Malcolm CJ & Murray J agreeing); M v The State of Western Australia [2006] WASCA 256 [30] (Wheeler JA, Steytler P & McLure JA agreeing).

It is well-established that in cases of intra-familial sexual abuse, matters personal to the offender are of less mitigatory weight than might otherwise be the case. The fact that an offender is otherwise of good character has only little weight because the offences are of a kind that, until revealed, generally do not impact on other people or upon their perception of the offender. See MPD v The State of Western Australia [2008] WASCA 57 [58] (Miller JA, Wheeler & Buss JJA agreeing).

There is no 'tariff' for offences of the kind in question (or for sex offences generally) because of the great variation that is possible in the circumstances of the offending and the offenders. The sentence to be imposed in a particular case depends on its individual facts and circumstances, having regard to the maximum available penalty and all relevant sentencing considerations. It is important, however, to appreciate what sentences are customarily imposed in cases involving similar offending, for the purpose of avoiding the risk of sentencing becoming idiosyncratic and arbitrary. See The State of Western Australia v Akizuki [2008] WASCA 267; (2008) 192 A Crim R 373 [68] - [69] (Steytler P, McLure JA agreeing).

The guidance afforded by comparable cases is flexible rather than rigid. They do not fix an upper or lower limit. The mere fact that a sentence is within the range of other sentences imposed for similar offences does not necessarily establish that there was an appropriate exercise of the sentencing discretion in the particular case. Similarly, the mere fact that a sentence is outside that range does not necessarily establish that the

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exercise of the sentencing discretion in the particular case miscarried. See Ly vThe Queen [2007] NSWCCA 28 [20] (Adams J, Howie & Price JJ agreeing); R v Baldock [2010] WASCA 170; (2010) 243 FLR 120 [147] (Buss JA).

In recent years, there has been a 'firming up' of sentences imposed for sexual offences against children, especially cases involving intra-familial sexual abuse. See VIM v The State of Western Australia [2005] WASCA 233; (2005) 31 WAR 1 [288] (Wheeler & Roberts-Smith JJA and Miller AJA).

28 In RDC v The State of Western Australia, the offender was convicted of 11 offences against his de facto child. The offences involved six incidents over a period of 18 months. The child was aged between 16 to 18 years, had left school and was serving an apprenticeship. She did not reside with her mother or the offender at the time of the offences in question. The offender was aged between 36 to 38 years. Certain offences were admitted. Of those which were not admitted, the sentence imposed for each of the four counts of penile-vaginal penetration was 5 years and the sentence imposed for each of the three counts of digital penetration was 4 years. A number of sentences were ordered to be served concurrently. The total effective sentence was 9 years 6 months. An appeal against sentence was dismissed.

29 In VIM v The State of Western Australia, the court examined a number of cases selected on the basis that they involved more than five sexual offences against a child, or against a number of children, or involved a charge of maintaining a sexual relationship with a child, in circumstances where there had been multiple offending. In the majority of cases, there had been at least one count of sexual penetration of a child's vagina or anus by the offender's penis. The court said that in relation to offences of that kind following a plea of guilty, the 'lower end' of cases would involve a sentence of 2 years 8 months, the most common sentence one would expect to see would be approximately 6 years 8 months, and that about two-thirds of sentences in such cases would fall within the range of 6 years 8 months to 12 years 8 months. The cases were summarised in schedule A to the reasons for judgment. The court also observed that the discount for a plea of guilty would be towards the higher end of the scale. The court said that the sample was too small and diverse to undertake successfully a similar exercise in relation to sentences imposed after trial. The court suggested a more reliable guide would be to rely on the cases in schedule A, scaling them up by about one-third to reflect the absence of a plea of guilty (see VIM [298], [300], [309] - [311]).

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30 In VIM, the court also made specific reference to the totality principle in connection with sentencing for sexual offences against children. The court referred to the insidious effects of offending of this kind on children and said (reasons [294] - [295]):

The effects to which we have referred are particularly evident in cases where sexual offending against the child has been frequent and/or has occurred over a long period. It hardly needs to be said that all sexual offending against a child is reprehensible. However, where there is an isolated occurrence, then, depending upon the circumstances, it may well be that, with support, a child will be able to overcome the experience, in the way that other adverse events can be largely overcome. The difference in cases of prolonged offending against a child is that the whole of the victim's childhood and potential for normal development is taken from him or her. When one comes to consider totality considerations, then, a relevant factor is that, as the amount of offending increases, so the likelihood of very significant harm to the victim or victims of the offending is dramatically increased. In the majority of such cases, cumulation of sentences is therefore to be expected, to reflect the increasing severity of effect upon the victim; as well as to reflect the fact that the offender has not simply given way to an impulse on an occasion, but has chosen repeatedly to commit serious offences.

Cumulation of sentence is also to be expected where there is more than one victim. That is consistent with patterns of sentencing in relation to other types of offences. In such cases, we note, however, the frequently cited observation that totality is of marginal importance 'particularly where each victim is aware of the offending conduct perpetrated on the other' (DeLuce v The Queen, unreported; CCA SCt of WA; Library No 960375; 19 July 1996, per Ipp J). One can imagine that there will be cases in which one child's awareness of the offending against another will be of significance (eg, where, as is not unusual in such cases, there is particular deviance, or violence in order to dominate more than one child at a time, or where an older child has the additional burden of feeling himself or herself helpless to protect the younger). However, it is difficult to regard such awareness, or lack of it, as necessarily making one case more or less serious than another, since where each child believes that he or she is the only victim, there may be an increased sense of isolation and shame felt by each.

31 In Deering v The State of Western Australia [2007] WASCA 212, Wheeler JA observed [18] that the greater the element of abuse, as evidenced by matters such as disparity of age, the use of force or other types of pressure, or a betrayal of trust, the greater the culpability.

32 In The State of Western Australia v Prince, McLure P reviewed many of the comparable cases decided after VIM [20]. In that review, her Honour found that in cases involving a plea of guilty, a sentence of

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4 years 2 months was the lowest sentence, that 12 years 6 months was the highest sentence, and that a number of sentences were in the order of 8 years. In relation to sentences after trial, the sentences reviewed were, in ascending order of severity, 6 years, 8 years 4 months, 10 years, 12 years, 14 years and 14 years 6 months.

33 Amongst the cases referred to by McLure P in Prince,was RMS v The State of Western Australia [2010] WASCA 76 which itself contains a review (at [27] - [35]) of sentences in various cases involving sexual offences against children. In RMS, reference was made to M v The State of Western Australia [2007] WASCA 238. In that case, the offender was convicted of four offences of indecent dealing and two offences of sexual penetration committed against his stepdaughter. The stepdaughter was aged 14 to 15 years. Three offences occurred at one time and the other three occurred on distinct and separate occasions, and the offending took place over the course of a two-year period. The sexual penetration counts involved one incident of fellatio and one incident of vaginal intercourse. The offender was of previously good character. He entered late pleas of guilty. The complainant had lost a year of university education because of the stress suffered and she was estranged from her family because her mother had supported the offender. The offender had tried to distance himself from the offences and to minimise his own conduct. He was sentenced to a total effective sentence of 7 years 9 months' imprisonment, which included 3 years for the fellatio count and 4 years 9 months for the vaginal intercourse. The application for leave to appeal against sentence was dismissed.

34 Since then, this court has also considered sentencing in relation to sexual offences against children in GGM v The State of Western Australia (No 2) and MAS v The State of Western Australia. In MAS, the accused was convicted of 25 offences of sexual abuse of his de facto daughter. Each sexual encounter occurred without the consent of the complainant, in fact, irrespective of whether consent could legally be given. The offences commenced when she was aged 11 or 12. Seven of the counts concerned the sexual penetration of a de facto child under the age of 16 years. Two of those involved penile-vaginal penetration and the sentence for each was 6 years. One involved penile-anal penetration. The sentence for this was 7 years. The other four of these seven counts involved oral sex or digital-vaginal penetration. In total, the offender was sentenced, for the 25 offences, to an effective sentence of 12 years, with eligibility for parole. The relevant circumstances included the fact that the victim fell pregnant at aged 16 and was obliged by the offender to have an abortion. An appeal against sentence was dismissed.

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35 In GGM, there were two complainants, neither of whom were related to the offender. The offender was convicted of a total of five counts of sexual penetration of a child under the age of 13 years. Four involved cunnilingus. The fifth involved digital-vaginal penetration. There were four offences against the first complainant and one offence against the second complainant. The sentence for each of the offences against the first complainant was 3 years 6 months, ordered to be served concurrently. The sentence with respect to the offence against the second complainant was also 3 years 6 months, ordered to be served cumulatively. The total effective sentence was, accordingly, 7 years' imprisonment. The application for leave to appeal against sentence was dismissed.

36 The other cases referred to by the appellant were KMB, PDS, GHS and GMS. In KMB, there were seven counts. The first offence concerned the offender having a sexual relationship with a child under the age of 16 years, where the offence carried a maximum penalty of 20 years' imprisonment. The child was his stepdaughter. The other sexual offences, which occurred after the victim was 16 years of age, carried maximum sentences of between 10 and 14 years. The complainant's evidence was that from the age of 8, sexual acts were committed against her on almost a daily basis. She fell pregnant to the offender at 12 years of age and was required to have an abortion. The sentence imposed for the first count was 10 years 6 months, and the total effective sentence was 14 years 6 months. The appeal against sentence was disallowed. The facts and circumstances underpinning ground 1 were described as 'shocking' and the offender was described as a 'predator of the worst kind' [124].

37 In PDS, the appellant was convicted of six counts of sexual penetration of a child, who was his natural daughter. She was aged between 12 and 16 years at the time of the incidents. The offences were not isolated and occurred against a background of repeated uncharged sexual offending. Count 1 involved sexual penetration of the vagina with his penis to which the complainant agreed after 'some persuasion'. Counts 2 and 3 related to another specific incident in which the offender asked to have anal intercourse with her and he placed a finger in her anus and then inserted his penis. Count 4 related to fellatio. Counts 5 and 6 also related to oral sex. Count 1 carried a maximum penalty of 20 years' imprisonment. Counts 2 to 6 inclusive attracted a maximum penalty of 10 years' imprisonment. The offender was sentenced to a term of 5 years' imprisonment in respect of the first count. There was a total head term for the six offences of 15 years, which was reduced by ordering counts 5 and 6 to be served concurrently with other sentences, resulting in an overall

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effective sentence of 12 years' imprisonment. An appeal against sentence was dismissed. It is to be noted that in that case, there was only one victim, she was older than the appellant's children here and significantly older than the appellant's daughter at the time the offences occurred in this case, and there was no suggestion of forcible, violent penetration of the kind in this case.

38 In GHS, the offender had abused two of his stepdaughters. There were separate trials in relation to each of his stepdaughters. In relation to one stepdaughter, five of the offences were committed on the same occasion, shortly after her twelfth birthday. The other two offences were committed some two years later. They were representative of a course of offending until the complainant was aged 20 or 21. The trial judge sentenced the offender to a total of 8 years' imprisonment for the offences against the first complainant. The offences against the second complainant occurred on five separate occasions from when the complainant was aged 13 until she was 21. Again, the offences were representative of a sustained course of sexual conduct toward the complainant. Again, the total effective sentence for the offences against the second complainant was 8 years. The result of the two different sentences was that the offender was effectively sentenced to 16 years' imprisonment. Both sentences were considered together on appeal to this court, where the total term of imprisonment was held to contravene the totality principle, and the court substituted a total effective sentence of 14 years. In GHS, it is to be noted that the offender was a stepfather and not the natural father of the children involved, that whilst the sexual conduct occurred over a long period of time, the children there were older than the appellant's children in this case, and it does not appear that the offending was carried out with the brutality associated with this case.

39 In GMS, there were 13 counts of sexual offences involving the offender's natural daughters, who were respectively aged between 9 and 17 years and 5 and 11 years at the time of the commission of the offences. Three of the offences involved indecent dealing. Nine offences concerned sexual penetration of a child whom the offender knew to be his lineal relative and there was one offence of attempting to sexually penetrate a child whom the offender knew to be his lineal relative. The offences included indecent dealing by the offender touching the victim on the vagina with his penis, sexual penetration by the offender penetrating the victim's vagina with his penis, indecent dealing by the offender pinching the lip of the victim's vagina, attempted penetration by the offender of the vagina of the victim with his penis, anal penetration by the offender of the victim with his penis, and indecent dealing by the offender of the victim

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in circumstances where he had got into the bath with the victim whilst naked. One of the daughters fell pregnant at the age of 17 and was required to undergo an abortion. In that case, the offender had pleaded guilty. An aggregate sentence of 12 years 6 months' imprisonment was imposed. The application for leave to appeal against sentence was dismissed.

40 As noted in VIM, generally a plea of guilty will attract a discount at the higher end of the scale.

41 Finally, reference should be made to two cases of single offences where the offending sexual conduct had caused severe physical injury to the victim.

42 In Pindan v The Queen (Unreported, WASCA, Library No 970530, 2 October 1997), the accused had pleaded guilty to the charge of sexually penetrating a child under the age of 13 years. He had taken the victim to a toilet where he sexually penetrated her vagina with his penis, causing her significant injuries, including the tearing of the vagina mucosa inwards along the vaginal floor for about one-third to one-half of the vagina, the tearing of the perineal skin and underlying perineal muscle, with the tear revealing the anal sphincter muscle. Without treatment, the opening of the vagina may have been left irregular and permanently longer. The child was the offender's niece. She was aged 5 years 8 months at the time. The accused pleaded guilty on the fast-track system. The accused had a criminal record spanning approximately 11 years prior to the time that he was sentenced for these offences. He was sentenced to 10 years' imprisonment in respect of the sexual penetration offence. He was also sentenced on a count of grievous bodily harm arising from the same incident, and the sentences were ordered to be served concurrently. Parole was refused. There was an appeal against sentence on the sole basis that the judge erred in denying parole. The court held that the judge's exercise of discretion in denying parole had not miscarried, and dismissed the application for leave to appeal.

43 In Samson v The State of Western Australia [2011] WASCA 173, there was a single offence of penile-anal penetration of a 5-year-old girl which caused her significant injuries. The victim was unknown to the offender and was chosen at random. The offender had pleaded guilty at an early stage, which was indicative of genuine remorse. He was 19 years old at the time and was suffering from a serious mental illness. The primary judge imposed a sentence of 7 years. An appeal against sentence was dismissed. McLure P, Newnes JA agreeing, said (at [16] - [18]) that

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7 years was very high for a single offence, particularly having regard to the appellant's youth, plea of guilty and co-operation with the police. Nevertheless, the sentencing judge was correct to describe the circumstances of the offending as being at the highest end of the scale of seriousness and that, by analogy with the reasoning in Victor v The State of Western Australia [2011] WASCA 94 [19], it would be incorrect to assess the relevant gravity of the sexual offence by reference to the 'Dempsey factors'. Other factors included the protection of the public, the fact that the offender was mentally ill and lacked insight into his condition, and that his refusal to take medication and his expressed intention to continue to engage in other conduct placed him at significant risk of reoffending. The conclusion was that the unusual combination of sentencing factors justified the high sentence in that case.

Manifest excess

44 In order to determine whether a sentence is manifestly excessive, it is necessary to consider the maximum penalty for the offence, the standards of sentencing customarily observed with respect to that offence, the place that the criminal conduct occupies in the scale of seriousness of offences of that type, and the personal circumstances of the appellant: Chan v The Queen (1989) 38 A Crim R 337, 342.

Totality principle

45 In Giglia v The State of Western Australia [2010] WASCA 9, Owen JA said [40], [43] - [44] (McLure P & Pullin JA agreeing):

[G]enerally speaking where there is a challenge on totality grounds, the severity of a sentence imposed on an individual count will usually fall 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, for example, may be softened by an order that it be served concurrently with sentences imposed in relation to the other counts. On the other hand, 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 excessive.

...

The totality principle and the authorities in which it has been explained are well known. The principle has been described as having two limbs. First, a judicial officer sentencing an offender for a number of offences must ensure that the aggregation of the sentences appropriate for each offence is a just and appropriate measure of the total criminality involved. Secondly, the overall sentence should not be 'crushing' in the sense that it would destroy any reasonable expectation of a useful life after release: see the

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authorities collected in Pollock v The State of Western Australia [2009] WASCA 121 [24] - [25].

A phrase often used to describe the practical application of the totality principle is that the judge, having fixed terms for the individual offences, should stand back and 'take a last look' to ensure that the aggregate term properly measures the overall criminality involved and that it is not crushing. In my view this is an apt description of the process and is a prudent step that a judicial officer should take in finalising the task of sentencing for multiple offences.

46 It is only the first limb of the totality principle which is sought to be invoked in this case. In Roffey v The State of Western Australia [2007] WASCA 246, McLure JA (Steytler P & Miller JA agreeing) said [25] - [26]:

An aggregate sentence may be inappropriately long under the first limb even if it cannot be described as crushing: Jarvis v The Queen (1998) 20 WAR 201, 216 (Anderson J).

The practical effect of the totality principle is ordinarily to arrive at an aggregate sentence that is less than that which would be arrived at by simply adding up all the terms appropriate for the individual offences: R v Holder [1983] 3 NSWLR 245, 260 (Street CJ). A rationale for the totality principle is that there is assumed rehabilitation and reduced demand for retribution after the initial sentences have been served. Where the principle of totality comes into effect, it is of little importance how the ultimate aggregate is made up: R v Holder (260).

47 I have mentioned in [30] above consideration given to totality in VIM concerning sexual offences against children.

Disposition - ground 1

48 The individual sentences of 6 years for penile-anal penetration of the son and 8 years for penile-vaginal penetration of the daughter are undoubtedly high. Having regard to all the circumstances, however, it could not be inferred, in my view, that the judge erred in the exercise of his discretion.

49 Each offence carried a maximum term of 20 years' imprisonment. The individual sentences imposed on the appellant do not appear to be manifestly excessive when regard is had to the standards of sentencing customarily imposed with respect to the forcible sexual penetration of a child. For example, in MAS, the offender was sentenced after trial to 12 years' imprisonment, with an individual sentence of 7 years for the count of, in effect, anal rape of his de facto daughter. A parole eligibility

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order was made. In Samson,the offender was sentenced, after pleading guilty, to 7 years for an individual count of, in effect, vaginal rape. The offender was made eligible for parole. In Pindan, the offender was sentenced, after pleading guilty, to 10 years (pre-transitional) for an individual count of, in effect, vaginal rape. The offender was not made eligible for parole.

50 Here, there was no plea of guilty. There was no remorse. There is no insight. No real weight can be given to his personal circumstances by way of mitigation. Having regard to the qualified psychological report, there can be no confidence that there is no real risk of reoffending. As explained later in more detail in these reasons, the offences were, in the scale of crimes of this nature, extremely serious and at the higher end of the scale.

51 Accordingly, there is no arguable error in imposing a sentence of 6 years in respect of penile-anal penetration of the son and 8 years in respect of penile-vaginal penetration of the daughter. No error has been disclosed and there is no point in granting an extension of time. I would dismiss the application to extend time and dismiss the application for leave to appeal in respect of ground 1.

Disposition - ground 2

52 The essential question is whether the total effective sentence of 14 years is a just and appropriate measure of the criminality involved.

53 It is to be accepted that a total effective sentence of 14 years is very high, particularly in comparison with the total effective sentence of 14 years 6 months which was given in the KMB case, although in that case there was only one victim and there is, generally speaking, an expectation that sentences will be cumulated where there is more than one victim (VIM [295]).

54 The question remains whether the judge's exercise of discretion has miscarried in the particular circumstances of this case. I am not persuaded that it has.

55 An important distinguishing feature of this case from other cases is the violence used by the appellant against his young children. Senior counsel for the appellant contended in oral submissions, in effect, that the force used by the appellant was no more than was necessary to achieve his purpose and that it is possible to imagine worse violence than that which occurred in these incidents. In my view, it is unhelpful to consider

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imaginary circumstances. The focus must be on the actual events in question. Moreover, to describe the violence as merely commensurate with the end sought to be achieved is to assume an abstraction of proportionality foreign to an offence of this kind involving young children, and, in any event, understates the level of force actually used in this case.

56 The following considerations lead me to conclude that there is no implied error in the total effective sentence of 14 years, with eligibility for parole.

57 There were two victims. Both of them were the appellant's natural children. They were young children. Indeed, the daughter was very young at the time.

58 The offences were violent in their execution, as indicated by the injury and pain inflicted, the use of physical force and restraint, and (in the case of the daughter, S), the use of a pillow to suppress the cries of the victim, which led to a feeling of suffocation in the victim.

59 The offences were representative of a wider pattern of conduct and were, accordingly, not mere aberrations or out of character. Although the sexual conduct did not take place daily, or over a period of many years, it occurred on those occasions when the appellant was, in effect, the sole carer of his children and, in the case of the daughter, it only stopped when the opportunity ceased to present itself.

60 The fact that the appellant preyed on his children whilst they were sleeping and defenceless is itself a malignant feature of these offences.

61 Count 3 was more egregious than the other counts against the daughter, as it also involved verbal as well as physical degradation. The statement, by her natural father, that she 'deserved this' could only serve to reinforce a sense of shame and worthlessness in her impressionable, juvenile (7-year-old) mind. The offence in count 3 also involved the corruption of the innocence of the younger daughter, K, and led to S and her younger sister K fleeing to the bathroom in fear of the appellant, and locking themselves in before eventually fleeing the house to the safety of the neighbouring property. The statement made by the appellant to his 10-year-old son, as he, in effect, anally raped him, that 'big boys don't cry', also underscores the pitiless brutality of those offences.

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62 The offences in counts 4 and 6 at least were calculated and planned, as indicated by the appellant separating his daughters when they were together, to give him privacy to carry out his assaults on S.

63 In addition to the enduring emotional trauma that has resulted, the female victim has, through the appellant's sexual conduct, been left with significant gynaecological injury which has also affected her continence. The injuries were correctly described by the trial judge as 'horrific'.

64 There was also the calculated menace of threats to kill members of the family if the victims revealed what had happened to them, in circumstances where the threats were made against a known history of domestic violence by the appellant.

65 There were no mitigating circumstances that could be given any real weight.

66 As indicated earlier, there can be no confidence that there is no real risk of reoffending in this case.

67 I would dismiss ground 2 of the appeal.

68 MAZZA JA: I agree with Murphy JA.