The State of Western Australia v ABM
[2004] WASCA 90
•11 MAY 2004
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : COURT OF CRIMINAL APPEAL
CITATION: STATE OF WESTERN AUSTRALIA -v- ABM [2004] WASCA 90
CORAM: MALCOLM CJ
WHEELER J
MILLER J
HEARD: 2 MARCH 2004
DELIVERED : 11 MAY 2004
FILE NO/S: CCA 133 of 2003
BETWEEN: STATE OF WESTERN AUSTRALIA
Appellant
AND
ABM
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram :KENNEDY DCJ
File Number : IND 1709 OF 2002
Catchwords:
Criminal law and procedure - Sentencing - Sexual penetration of a child between the ages of 13 and 16 years - State appeals; principles governing - Turns on own facts
Legislation:
Nil
Result:
Appeal dismissed
Category: B
Representation:
Counsel:
Appellant: Mr R E Cock QC
Respondent: Mr M R Hall
Solicitors:
Appellant: State Director of Public Prosecutions
Respondent: Malcolm Hall
Case(s) referred to in judgment(s):
Everett v The Queen (1994) 181 CLR 295
Marris v The Queen [2003] WASCA 171
R v Avery [2002] WASCA 136
R v Chilvers [2003] WASCA 87
R v Clarke [1996] 2 VR 520
R v GP (1997) 18 WAR 196
R v Grein [1989] WAR 178
R v Leucus (1995) 78 A Crim R 40
R v Osenkowski (1982) 30 SASR 212
R v Suarez‑Mejia (2002) 131 A Crim R 577
R v Wilkinson, unreported; CCA SCt of WA; Library No 8143; 12 March 1990
Woods v R (1994) 14 WAR 341
Case(s) also cited:
Nil
MALCOLM CJ: This is a State appeal against sentence pursuant to s 688(2)(d) of the Criminal Code against the sentences imposed in the District Court on 14 August 2003. The details of the offences of which the respondent was convicted are set out in the reasons to be published by Wheeler J.
The principles applicable to an appeal by the State are well settled in the context of what were previously Crown appeals: see for example R v Grein [1989] WAR 178 at 180 per Malcolm CJ. In Everett v The Queen (1994) 181 CLR 295 at 299, Brennan, Deane, Dawson and Gaudron JJ said that:
"An appeal by the Crown against sentence has long been accepted in this country as cutting across the time‑honoured concepts of criminal administration by putting in jeopardy for the second time the freedom beyond the sentence imposed … That being so, a 'court entrusted with the jurisdiction to grant or refuse such leave should give careful and distinct consideration to the question whether the Attorney‑General has discharged the onus of persuading it that the circumstances are such as to bring the particular case within the rare category in which a grant of leave to the Attorney‑General to appeal against sentence is justified' (Malvaso v The Queen (1989) 168 CLR 227 at pp 234 – 235). In determining whether that question should be answered in the affirmative, a Court of Criminal Appeal should be guided by the following comment of Barwick CJ in Griffiths v The Queen (1977) 137 CLR 293 at p.310. See, to the same effect, p.327 per Jacobs J, with whom Stephen J agreed, and pp 329 – 330 per Murphy J:
'an appeal by the Attorney‑General should be a rarity, brought only to establish some matter of principle and to afford an opportunity for the Court of Criminal Appeal to perform its proper function in this respect, namely, to lay down principles for the governance and guidance of Courts having the duty of sentencing convicted persons.'
The reference to 'matter of principle' in that passage must be understood as encompassing what is necessary to avoid the kind of manifest inadequacy or inconsistency in sentencing standards which Barwick CJ saw as constituting 'error in point of principle' (ibid, at p.310)."
Of course, the position in this State under s 688(2)(d), an appeal may be made to the Court of Criminal Appeal on the part of the prosecution:
"Against any punishment imposed or order made in respect of a person convicted on indictment or convicted by a court of summary jurisdiction and committed for sentence."
Thus, the position in Western Australia is distinguishable from that in other States as in this State the State (formerly the Crown) has an appeal as of right. However, given the special status of appeals by the prosecution and the discretionary character of sentencing decisions means that where an error of sentencing principle has not been demonstrated and it is contended that a sentence imposed by the primary Judge was manifestly inadequate, it must be shown that the sentence is clearly outside the appropriate range or some other appealable error can be identified before a prosecution appeal will be upheld. The reason for this is that on an appeal by the Crown, the offender is brought before the Court again so that the issue of his or her liberty is put at risk for a second time, bringing into play the principle of "double jeopardy".
As Murray J said in R v Leucus (1995) 78 A Crim R 40 at 51:
"It seems clear, therefore, that the rationale behind the operation of the principle as to double jeopardy is that it directs the Court of Criminal Appeal to bear in mind that the essential purpose of a Crown appeal against sentence ought to be to expose serious error of principle in the sentencing Court, to correct that, and by the reinforcement of a proper statement of principle, to aid the consistency and certainty of the sentencing process and to avoid undue disparity. Upon that basis a Crown appeal ought to be a relative rarity, and it should only be in a clear case that the appellate court is persuaded to interfere with the sentencing disposition of the Judge at first instance."
In R v Clarke [1996] 2 VR 520 at 522, Charles JA (with whom Winneke P and Hayne JA agreed) said:
"Occasions may arise for the bringing of a Crown appeal (a) where a sentence reveals such manifest inadequacy or inconsistency in sentencing standards as to constitute error in principle (Everett at 300 [supra]); (b) where it is necessary for a court of criminal appeal to lay down principles for the governance and guidance of courts having the duty of sentencing convicted persons (Griffiths at 310 [Griffiths v The
Queen (1976) 137 CLR 293]); (c) to enable the courts to establish and maintain adequate standards of punishment for crime; (d) to enable idiosyncratic views of individual judges as to particular crimes or types of crimes to be corrected; (e) to correct a sentence which is so disproportionate to the seriousness of the Crime as to shock the public conscience (Osenkowski at 213 [R v Osenkowski (1982) 30 SASR 212]); (f) to ensure, so far as the subject matter permits, that there will be uniformity in sentencing (Everett at 306 [supra])."
So far as the application of the principle of double jeopardy is concerned, Murray J also said in R v Leucus (supra) at 52:
"The task imposed upon this Court by the Code s 698(3), however, must remain the substitution of the sentence which, in the opinion of this Court, ought to have been passed at first instance. That must always be the sentence properly proportionate to the gravity of the crime in the circumstances of its commission, but the fact that one is dealing with a discretionary judgment must always be borne in mind. In choosing the sentence to be substituted, this Court may have regard to the principle of double jeopardy to somewhat modify the result towards the bottom or more lenient end of the range of proportionate sentences."
Bearing these principles in mind, albeit with some hesitation, I am of the opinion that this is very much a borderline case in which the very experienced Chief Judge of the District Court has been persuaded to impose a suspended sentence which has resulted in a merciful disposition. In this respect, I agree with Wheeler J for the reasons her Honour has expressed that this State appeal against sentence should be dismissed.
WHEELER J:
The appeal
This is a State appeal against sentence. On 6 May 2003 the respondent pleaded guilty to one count of sexual penetration of a child between the ages of 13 and 16 years. On 11 August 2003 the respondent was convicted, after trial, of two further counts of sexual penetration of a child between the ages of 13 and 16 years. The respondent was sentenced in relation to all three offences on 14 August 2003. In relation to the offence to which he pleaded guilty, the respondent was sentenced to 18 months' imprisonment, suspended for 18 months, and in respect of the
further two offences he was sentenced to an 18 month Intensive Supervision Order with programme and supervision requirements.
The offences
These offences were of a relatively serious nature. The complainant was aged between 14 and 15 years at the time of the offences and was attending a school for people with intellectual disabilities. The respondent is nine years older than the complainant and is in a de facto relationship with the complainant’s cousin. The respondent and his partner have three young children who are aged 5, 4 and 2 years. It seems that the complainant was fond of the children and had gone over to the respondent's house to visit. The offences occurred on two occasions when the complainant was staying overnight at the respondent's house. On each occasion the respondent's partner was in the house and on the second occasion one of the respondent's daughters was asleep in the same room.
The circumstances of the offences are as follows. The first offence in time occurred late one evening after the respondent's partner and their children had gone to bed. The complainant was on the couch when the respondent asked her to lay her head on his lap. The complainant did this, at which point the respondent put his hand on the complainant's breast and subsequently penetrated her vagina with his finger. The further two offences occurred some six months later when the complainant again stayed over at the respondent's house. The complainant was sleeping in one of the children's bedrooms when the respondent came into the room and climbed into bed with her. The respondent performed cunnilingus on the complainant before sexually penetrating her vagina with his penis. He then ejaculated on the complainant's stomach before leaving the room. It was to the last of the offences, being the sexual penetration with his penis, that he pleaded guilty. The complainant initially did not tell anyone about these events. It seems that the offences only came to light when the complainant approached her teacher a few days later because she was concerned about unusual bleeding after intercourse. It was the complainant's teacher who reported the matter to the police.
Comments of the learned sentencing Judge
The learned sentencing Judge noted that the complainant was a consenting participant in these activities; indeed, she had invited the respondent into her bed. That did not, as the learned sentencing Judge noted, excuse his conduct, but it was a relevant factor in assessing the degree of his culpability. Apart from these offences, the respondent had only a spent conviction for a minor fraud matter and traffic offences on his record. At the time of his sentencing the respondent was 24 years of age. Her Honour noted that the respondent and his partner had formed their relationship and had three children when they were both at a very young age. Her Honour also acknowledged that caring for three young children was clearly exhausting and suggested that some assistance was required in respect of the relationship between the respondent and his partner. He was assessed as at a "low to medium" risk of re-offending.
The respondent is now 26 years of age. Despite an inability to read, he has a good work history, was employed at the time of his trial and is still employed, and financially supports his partner and their children. The respondent is also about to begin attending a sex offender's programme, in compliance with the conditions of the Intensive Supervision Order imposed by the learned sentencing Judge.
On a number of occasions during the course of sentencing submissions, the learned sentencing Judge who, of course, had also been the trial Judge, expressed the view that the respondent "needs to go to jail"; her Honour was plainly of the view that the offences called for terms of immediate imprisonment. It was submitted on behalf of the respondent that notwithstanding the seriousness of the offences, there were circumstances suggesting that it was not necessary that any term of imprisonment imposed be served immediately: they being primarily the absence of any apparent premeditation, persuasion or coercion; the respondent's good record and work history; and the fact that he was the financial support of three very young children. In relation to the first of those factors, her Honour accepted the submission as far as it went, but pointed, in my respectful view correctly, to factors detracting from its significance, including the de facto family relationship and the complainant's intellectual handicap. It appears that her Honour took the view that, even if the respondent was not specifically aware of that intellectual handicap, it should have been obvious to him that the complainant lacked maturity for a girl of her age. Her Honour adjourned sentencing for a few days in order to consider the matter further, in the meantime remanding the respondent in custody.
When she came to sentence the respondent, her Honour took the view that the offences did warrant a sentence of imprisonment. However, she determined to suspend that sentence because of her concern for the three young children of the respondent and his de facto partner. Her Honour also referred in that context to the respondent's work history, good references which had been tendered on his behalf, and the absence of any relevant prior convictions.
Principles governing State appeals
The principles governing State appeals are well established. The State should only bring an appeal in "rare and exceptional" cases: Everett v The Queen (1994) 181 CLR 295 at 305 per Brennan, Deane, Dawson and Gaudron JJ. Disagreement about the adequacy of the sentence is not sufficient: Everett at 306-7 per McHugh J. Even where an appellate court is of the view that a sentence imposed demonstrates some error of principle, or some manifest inadequacy, it does not follow that, in relation to a State appeal, it will necessarily allow the appeal. It will do so only where it appears that it is necessary to lay down principles for the guidance of the exercise of sentencing discretion, or to correct idiosyncratic views of individual Judges, or to correct a sentence which is so disproportionate as to shock the public conscience, or otherwise where it is necessary in order to ensure that appropriate sentencing standards are maintained and there is public confidence in the administration of justice (cf R v Osenkowski (1982) 30 SASR 212 at 212-3).
Examples of appellate restraint in relation to State appeals against sentence are numerous. In the context of digital sexual penetration, for example, Wallace, Kennedy and Walsh JJ in R v Wilkinson, unreported; CCA SCt of WA; Library No 8143; 12 March 1990, dismissed a State appeal against sentence, notwithstanding that all of their Honours were of the view that the non-custodial sentence imposed was inadequate and that the serious and unusual circumstances of the offence warranted custodial punishment.
Sentencing principles
There are many cases on sentencing offenders guilty of child sexual assault within a family or closed community. The principles applicable to such offences generally have recently been summarised in R v Chilvers [2003] WASCA 87 by McKechnie J with whom Anderson and Parker JJ agreed. As set out in par [25] of that decision, relevant principles include:-
"• There is no tariff for sexual offences.
•Sexual offences are very serious.
•They involve a breach of trust.
•Crimes against more than one child aggravate the offending conduct especially if one child becomes aware that a sibling has also been a victim.
•Offences repeated over a period are aggravating circumstances.
•The dominant sentencing considerations are punishment and general deterrence.
•Disparity in age can be an aggravating feature.
•Vulnerable victims should be properly protected by the imposition of deterrent sentences.
•Mitigating factors do not have as much weight as they might do in other cases.
•Exceptional circumstances must be shown to justify a sentence other than immediate imprisonment.
•However, maintaining the family unit and the prospects of success in adopting a welfare approach are powerful mitigating factors.
•The desire of a family for a father not to be imprisoned is significant but by no means conclusive.
•Forgiveness by a victim is significant but not conclusive.
•Ordinarily, sexual offences of this type would merit immediate imprisonment for a significant period but this is not an invariable rule.
•The decision to suspend a sentence depends on consideration of all factors relevant to the offender whether aggravating or mitigating, including the objective features of the offence."
Where his Honour refers to sexual offences "of this type" he is referring to digital penetration, which was the offence in question in that case. As a general rule, penetration of a child with the offender's penis has been more seriously regarded.
Application of principles to the present case
In my view, this is not a State appeal in which this Court should disturb the sentence imposed by her Honour. There are a number of reasons for this conclusion.
I accept that ordinarily the offences committed by the respondent, and in particular the third count, notwithstanding the plea of guilty to it, called for terms of imprisonment to be served immediately. I accept also that, although there were substantial mitigating factors, there was nothing so unusual about them as to suggest to this Court that it would be appropriate to suspend any term which was imposed.
However, in all the circumstances of the case, it is my view that the disproportion between what would have been appropriate sentences for these offences and the sentences actually imposed is not so great as to "shock the public conscience". There is no question arising in this case as to the need to correct any idiosyncratic views, since her Honour the learned sentencing Judge is a very experienced sentencing Judge, and her observations both during the course of submissions and during her sentencing remarks indicated an awareness of all relevant principles. It does not seem necessary to allow the appeal in order to establish or maintain appropriate standards of sentencing for offences of this kind; her Honour was well aware that a sentence of immediate imprisonment was apparently called for in the circumstances of the present case.
The principal criticism of the sentence which her Honour ultimately imposed, was that she apparently gave disproportionate weight to considerations of the welfare of the respondent's three small children. The flavour of her sentencing remarks suggests that she may also have given disproportionate weight to the respondent's relatively good antecedents and to his inexplicable lack of insight into the circumstances of his offending, coupled with his apparently good prospects for rehabilitation.
As to those matters, however, it must be remembered that her Honour had also been the trial Judge. She had had the opportunity to observe the complainant giving evidence, and to observe the respondent and other family members. A trial Judge, when coming to sentence, particularly in a case such as the present, will have obtained impressions of the character of the offender and other relevant parties, and of family dynamics, which may well be difficult to articulate and to convey to an appellate court. Without abandoning its responsibility for ensuring that sentences imposed are proportionate to the objective circumstances of the offending and the offender, some weight must be given by an appellate court to intangible factors of this kind. Finally, to adopt the passage from R v Osenkowski (supra) at 212-3 (per King CJ) which has been cited in many cases subsequently:
"It is important that prosecution appeals should not be allowed to circumscribe unduly the sentencing discretion of judges. There must always be a place for the exercise of mercy where a judge's sympathies are reasonably excited by the circumstances of the case. There must always be a place for the leniency which has traditionally been extended … when the judge forms the view, almost intuitively in the case of experienced judges, that leniency at that particular stage of the offender's life might lead to reform."
For those reasons, while I agree with the State's submission that, objectively, this case does not appear to have been one of those exceptional cases which would justify a sentence other than immediate imprisonment, I would dismiss the appeal.
MILLER J: The respondent was presented in the District Court at Perth on two indictments dated, respectively, 20 January and 6 May 2003. On the first of the indictments he was charged that on 3 February 2002 at Cooloongup he sexually penetrated one SCF, a child between the ages of 13 and 16 years by penetrating her vagina with his penis, contrary to s 321(2) of the Criminal Code. On the second indictment he was charged with two offences:
(1)that between 12 February 2001 and 2 February 2002 at Hillman he sexually penetrated SCF, a child between the ages of 13 and 16 years by penetrating her vagina with his finger;
(2)that on 3 February 2002 at Cooloongup he sexually penetrated SCF, a child between the ages of 13 and 16 years by engaging in cunnilingus with SCF.
Both of these offences were alleged to be in contravention of s 321(2) of the Code.
The respondent pleaded guilty on the "fast track" in relation to the first indictment, pleading guilty to the offence on 6 May 2003 at the District Court at Perth. He pleaded not guilty to the two counts the subject of the second indictment and was convicted after trial on 11 August 2003 in the District Court at Perth of both offences.
The respondent was sentenced on all offences on 14 August 2003. On the first indictment he was sentenced to 18 months' imprisonment, suspended for a period of 18 months, and on the second, was given in
relation to each count an 18 month intensive supervision order with programme and supervision requirements.
By notice of appeal dated 4 September 2003 the appellant appeals against all sentences. The grounds are that the learned sentencing Judge erred in ordering that the term of imprisonment imposed in relation to the first offence be suspended and erred in imposing intensive supervision orders in relation to the offences the subject of the second indictment. There are three grounds of appeal and particulars are given in relation to each of the grounds. In relation to the first ground (which relates to the first indictment), it is contended that the offence was extremely serious and was aggravated by a number of features; that the learned sentencing Judge placed undue emphasis upon the respondent's family commitments; and that there were no matters in the respondent's antecedents of such a nature as to warrant suspension of the term of imprisonment.
In relation to the second ground (which relates to the second indictment), the particulars assert that the offences were so serious as to warrant immediate imprisonment, the pleas of not guilty entered by the respondent put the complainant through the trauma of giving evidence; there was no evidence of remorse or acknowledgement in relation to these offences; and in evidence the respondent suggested the complainant was a liar motivated by profit.
The third ground of appeal contends that the sentences imposed by the learned sentencing Judge in relation to all offences were out of line with other sentences imposed for similar offences. Particulars in relation to that ground assert (in addition to those particulars raised in relation to grounds 1 and 2) that the respondent took advantage of the complainant who was intellectually impaired and had previously been a victim of sexual abuse; the offences indicated pursuit of the complainant; and the respondent continually claimed that the complainant had seduced him.
The appeal is an appeal by the prosecution in relation to which the principles are well established. They were stated in Everett v The Queen (1994) 181 CLR 295 by McHugh J at 306 ‑ 307 as follows:
"The approach of a court to a jurisdiction that specifically authorizes a Crown appeal against sentence must necessarily be different from the approach that this Court takes on an application for special leave to appeal against an order setting aside a conviction. The jurisdiction to hear a Crown appeal against sentence is conferred on a court of criminal appeal so that that court can ensure that, so far as the subject matter permits, there will be uniformity of sentencing. Uniformity of sentencing is a matter of great importance in maintaining confidence in the administration of justice in any jurisdiction. Sentences that are higher than usual create justifiable grievances in those who receive them. But inadequate sentences also give rise to a sense of injustice, not only in those who are the victims of the crimes in question but also in the general public. Inadequate sentences are also likely to undermine public confidence in the ability of the courts to play their part in deterring the commission of crimes. To permit the Crown, as well as convicted persons, to appeal against sentences assists in maintaining confidence in the administration of justice.
If a sentencing judge imposes a sentence that is definitely below the range of sentences appropriate for the particular offence, the case can be regarded as falling within the rationale for conferring jurisdiction in respect of Crown appeals. It can be regarded as sufficiently exceptional to warrant a grant of leave to appeal to the Crown even if no question of general principle is involved. Such cases, however, are likely to be rare. Defining the limits of the range of appropriate sentences with respect to a particular offence is a difficult task. What is the range in a particular case is a question on which reasonable minds may differ. It is only when a court of criminal appeal is convinced that the sentence is definitely outside the appropriate range that it is ever justified in granting leave to the Crown to appeal against the inadequacy of a sentence. Disagreement about the inadequacy of the sentence is not enough to warrant the grant of leave. Sentencing is too inexact a science to make mere disagreement the criterion for the grant of leave to appeal against the inadequacy of a sentence. The requirement of leave gives rise to the inference that Parliament intended that something more than mere error was to be the criterion of the grant of leave."
A recent statement of this Court of the relevant principles is to be found in R v Suarez‑Mejia (2002) 131 A Crim R 577 in the judgment of Parker J (with whom Murray and Miller JJ agreed) at [64]:
"There are clearly established principles which apply to Crown appeals of this nature. A convenient statement of them may be found in the decision of Charles JA in R v Clarke [1996] 2 VR 520 at 522 – 523. In particular, it is established that an appeal by the Crown should only be brought in a rare and exceptional case and to establish a point of principle. Occasions may arise for the bringing of a Crown appeal (a) where a sentence reveals such manifest inadequacy or inconsistency in sentencing standards as to constitute error in principle, (b) where it is necessary to lay down principles for the governance and guidance of the exercise of the sentencing discretion, (c) to establish and maintain adequate standards of punishment, (d) to correct idiosyncratic views of individual judges, (e) to correct a sentence which is so disproportionate as to shock the public conscience, and (f) to ensure uniformity. A Court of Criminal Appeal is not entitled to substitute its own opinion for that of the sentencing judge merely because it considers the sentence inadequate or excessive; it may only interfere if there is manifest inadequacy or the sentencing judge fell into material error of law or fact."
When the learned sentencing Judge dealt with the respondent she summarised the facts of each offence. The first offence occurred when the complainant was just approaching or had just achieved the age of 15 years. She was still 15 at the time of the second or third offences. She was attending a school for people with intellectual disabilities. The learned sentenced Judge thought that when she appeared before her at the age of 17 years she looked more like a 14‑year‑old.
The respondent was married with three children. His wife was the cousin of the complainant and the complainant stayed overnight at the respondent's home on two occasions. The offences occurred on these occasions. On each occasion the respondent's wife was in the house and on the second occasion, one of respondent's daughters was in the same room where the offences occurred.
It is unnecessary to go into the detail of the offences committed by the respondent, save to point out that the first offence involved penile penetration, the second digital penetration and the third, cunnilingus. The respondent contended at his trial that the complainant was the instigator of what had occurred on the second and third occasions and the learned sentencing Judge found as a fact that in his defence, the respondent had not confined his case to denials of the matters in question but had put as much blame as he could upon the complainant. A pre‑sentence report made available to this Court reveals the same attitude on the part of the respondent. There, he stated that it was the complainant who had approached him, grabbing him in the crotch area and leading him into his daughter's bedroom where he had sex with her on the first occasion. He described the complainant as mature looking and repeated that she had offered sexual provocation to him. He accused her of bragging of her sexual exploits and constantly approaching him and tempting him into sexual relations.
The learned sentencing Judge pointed out that the respondent was nine years older than the complainant and that by his behaviour he had fallen well below the standard that the community expected of him. Her Honour made reference to the fact that the offence the subject of the first indictment called for a sentence of imprisonment, but she decided that the sentence should be suspended because of her concern for the respondent's children. Her Honour pointed out that the respondent had children aged 5, 3 and 2 years respectively and a wife who did not work. Reference was then made to the respondent's work history and to his character generally.
After pointing out that the complainant had been a consenting party to what had occurred, the learned sentencing Judge stated that the respondent should have had a greater understanding of what it was that he had done. Reference was made to the respondent's relationship with his family and the possibility that some assistance was required in relation to that relationship. Her Honour then determined that intensive supervision orders would be appropriate for the two matters the subject of the second indictment. The programming order which was set was to include psychological and relationship counselling and counselling in relation to sexual responsibilities.
Ground 1
The appellant contends that the suspension of the sentence of imprisonment was inappropriate in this case, as imposition of a non‑custodial sentence in cases of sexual abuse of children is only appropriate in rare and exceptional circumstances: R v GP (1997) 18 WAR 196 per Malcolm CJ at 217. Although there is no tariff in relation to sexual offences, cases of intrafamilial sexual abuse are said to be of a kind which should typically attract significant sentences of imprisonment. Reliance is placed upon Woods v R (1994) 14 WAR 341 where Anderson J (at 354) said:
"Cases of intra family sexual assaults of young children that have attracted heavy sentences, that is, sentences of eight years or more in total, often, but not always, are cases where more than one child has been victimised or where there has been multiple offending over an extended period and the offending has included sexual penetration in one form or another, or where some degree of violence, cruelty or aggression or threats have been employed. In some cases, such as the Podirsky cases, all of those features are involved and these will generally attract very heavy sentences. In other cases not all of the features are present."
The judgment of Anderson J in Woods v R (with whom Malcolm CJ and Seaman J agreed) is a comprehensive analysis of sentencing in Western Australia for cases of intrafamilial sexual assault and it can fairly be said that an analysis of all the cases reveals that generally speaking, cases of intrafamilial sexual assault or abuse on young children will necessitate that the offender is sentenced to a term of imprisonment to be served immediately.
In the present case it is submitted by the appellant that the learned trial Judge placed too much emphasis upon matters personal to the respondent, particularly his family commitments. In my opinion this submission is well made. Although her Honour was naturally concerned about the respondent's wife and three children, there was no suggestion that the respondent's wife was unable to care for those children and it has to be acknowledged that in many cases in which offenders are sentenced for intrafamilial sexual assault or abuse, there will be hardship to the wife and children of the offender by reason of a sentence of imprisonment being imposed. There was nothing in this case that marked out the family relationship as anything unusual or different from the norm.
Although the respondent had been in employment and others spoke well of him, the fact remained that this was a case in which he had sexually penetrated a girl nine years younger than him, in circumstances in which he took advantage of her presence in his house and when (as the trial Judge concluded) he knew that she was suffering intellectual disability. In such a case it would be extremely rare and exceptional to suspend a term of imprisonment and, in my view, no exceptional circumstances were shown which would justify that outcome in this case.
Ground 2
The respondent submits that although the offences the subject of the second indictment were not as serious as those on the first indictment, they were nevertheless serious enough to warrant a term of immediate imprisonment. They constituted the sexual abuse of a child and (it is submitted) were not of such a rare and exceptional character that the imposition of a non‑custodial sentence was appropriate.
It is submitted by the respondent that the learned sentencing Judge placed insufficient emphasis upon the fact that the two offences had occurred on two separate occasions and that by pleas of not guilty the respondent had put the complainant through the trauma of giving evidence, as well as causing expense to the criminal justice system.
I have already pointed out that the learned sentencing Judge was critical of the respondent's conduct of his defence, particularly his attempt to place as much blame as he could upon the complainant. It appears from the transcript of the proceedings that the respondent suggested the complainant was a liar motivated by profit and contended that she had pestered him and was the instigator of the sexual contact that had occurred. As the learned sentencing Judge held, he "managed to get in a few extra pieces of denigration of her".
Having regard to the analysis of the cases by Anderson J in Woods v R (supra), I am firmly of the view that the matters the subject of the second indictment called for a sentence of imprisonment to be served immediately. They were cases of intrafamilial sexual abuse by the respondent on a child and one who suffered a degree of intellectual impairment. Although there was no penile penetration, there was digital penetration and cunnilingus. Whatever mitigatory circumstances there may have been in relation to the respondent (and they appear to be only the fact that he had minimal criminal record, a history of work and family responsibilities) they did not, in my view, justify the imposition of intensive supervision orders rather than a sentence of imprisonment to be served immediately.
Ground 3
The third ground of appeal really repeats the essence of the first and second grounds. It contends that the sentences imposed were disproportionate to those usually imposed for sexual penetration and/or abuse of a child between the ages of 13 and 16 years, and with that submission I agree. I am of the view that the sentences imposed upon the respondent by the learned sentencing Judge were disproportionate to those usually imposed in cases of intrafamilial sexual abuse. The sentences were, in my view, manifestly inadequate and inconsistent in sentencing standards to such an extent as to constitute error in principle.
Recent cases before this Court dealing with offences under s 321 of the Code are R v Avery [2002] WASCA 136 and Marris v The Queen [2003] WASCA 171. In the first of these cases a sentence of 4 years' imprisonment was imposed for multiple offences of sexual assault within the meaning of s 321 of the Criminal Code in circumstances where the offender was a 20‑year‑old man who had committed offences against a 13‑year‑old girl whom he had met on an internet chat line. The Court considered the case to be one of corruption of a much younger person and with the commission of a series of offences of increasing seriousness over a period of time.
The sentence which had been imposed upon the offender was one of 2 years' imprisonment and this the Court (Wallwork, Murray and McKechnie JJ) considered to be manifestly inadequate. Despite the double jeopardy involved in the fact that it was a Crown appeal, the sentence was doubled to one of 4 years' imprisonment.
In Marris v The Queen a sentence of 3 years' imprisonment had been imposed upon an offender who had committed two counts of indecent dealing with a child between the ages of 13 and 16 years, and four counts of sexual penetration of a child between the ages of 13 and 16 years. The offences had occurred within a short space of time on the one occasion and in circumstances where the offender had met the complainant at the York show earlier in the day and then met up with her later in the evening. It appears that the age difference was not great and in her judgment, Wheeler J made the point that the offender had made no lengthy attempts at persuasion and that there was no pressure or blackmail or force of any kind. A clinical psychologist's report had assessed the offender as being at a low risk of re‑offending. In this case the Court (Murray, Templeman and Wheeler JJ) allowed an appeal by the offender and ordered suspension of the service of the sentences imposed for a period of 18 months from the hearing of the appeal.
The case of Marris v The Queen was referred to by the learned sentencing Judge in this case. She made the point that she had been referred to it by counsel but said that in her view it was "not a similar situation" and that a sentence of imprisonment was warranted. Her Honour then proceeded to suspend the sentence of imprisonment. This was a puzzling decision, because in Marris a sentence of imprisonment was imposed, but suspended by the Court of Criminal Appeal on appeal. If her Honour was saying that the respondent's case was different from that of Marris, it is difficult to see why her Honour decided that the sentence of imprisonment which she thought appropriate on the first indictment, should be suspended.
Conclusion
In my view, the sentences imposed upon the respondent were so manifestly inadequate and disproportionate to those which could be expected for offences of the type committed by the respondent, as to necessitate that the appeal be allowed and the respondent be resentenced according to law. Granted that it is a case in which there is an element of double jeopardy present, it is my view that an appropriate sentence of imprisonment under the law as it stood in August 2003 would have been 3 years on the first count and 18 months on each of the second and third counts, those sentences to be served concurrently. By reason of the provisions of the Sentencing Legislation Amendment and Repeal Act 2003 and the Sentence Administration Act 2003, those sentences should now be 2 years' imprisonment on the first indictment and 12 months' imprisonment on each of the two counts on the second indictment. The sentences should be served concurrently and the respondent should be eligible for parole with the result that he would serve 12 months' imprisonment before eligibility for release on parole. The sentences should date from today.
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