The State of Western Australia v AHD
[2021] WASCA 13
•29 JANUARY 2021
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: THE STATE OF WESTERN AUSTRALIA -v- AHD [2021] WASCA 13
CORAM: QUINLAN CJ
BUSS P
MITCHELL JA
HEARD: 13 NOVEMBER 2020
DELIVERED : 29 JANUARY 2021
FILE NO/S: CACR 31 of 2020
BETWEEN: THE STATE OF WESTERN AUSTRALIA
Appellant
AND
AHD
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram: VERNON DCJ
File Number : IND X of 2018
Catchwords:
Criminal law - State appeal against sentence - Respondent convicted on his pleas of guilty of four counts of sexual penetration and two counts of indecent dealing in relation to his de facto child - Manifest inadequacy - Totality
Legislation:
Criminal Appeals Act 2004 (WA), s 31(4)(a)
Criminal Code (WA), s 329(2), s 329(4), s 329(9), s 329(10)
Result:
Appeal allowed
Sentencing decision of the primary judge set aside
Respondent resentenced
Category: D
Representation:
Counsel:
| Appellant | : | Ms A L Forrester SC & Mr B M Murray |
| Respondent | : | Ms H E Prince |
Solicitors:
| Appellant | : | Director of Public Prosecutions (WA) |
| Respondent | : | In person |
Case(s) referred to in decision(s):
ARK v The State of Western Australia [2014] WASCA 45
Barbaro v The Queen [2014] HCA 2; (2014) 253 CLR 58
CJF v The State of Western Australia [2012] WASCA 69
CMB v Attorney-General (NSW) [2015] HCA 9; (2015) 256 CLR 346
DKA v The State of Western Australia [2015] WASCA 112
ERA v The State of Western Australia [2013] WASCA 163
FWB v The State of Western Australia [2016] WASCA 118
Gaskell v The State of Western Australia [2018] WASCA 8
GHK v The State of Western Australia [2014] WASCA 19; (2014) 238 A Crim R 178
Giglia v The State of Western Australia [2010] WASCA 9
Hili v The Queen [2010] HCA 45; (2010) 242 CLR 520
Impicciatore v The State of Western Australia [2020] WASCA 33
JJR v The State of Western Australia [2018] WASCA 51; (2018) 272 A Crim R 209
Johnson v The Queen [2004] HCA 15; (2004) 78 ALJR 616
Juma v The State of Western Australia [2011] WASCA 54
KMB v The State of Western Australia [2010] WASCA 212
KSN v The State of Western Australia [2017] WASCA 156
Law v The Queen [2019] WASCA 81
LJH v The State of Western Australia [2016] WASCA 155; (2016) 261 A Crim R 355
Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665
LSC v The Queen [2003] WASCA 303
LYN v The State of Western Australia [2019] WASCA 45
M v The State of Western Australia [2006] WASCA 256
McAlpine v The State of Western Australia [2018] WASCA 195
McGarry v The Queen [2001] HCA 62; (2001) 207 CLR 121
MHE v The State of Western Australia [2019] WASCA 133
Mill v The Queen [1988] HCA 70; (1988) 166 CLR 59
Mills v The State of Western Australia [No 2] [2017] WASCA 52; (2017) 265 A Crim R 484
Moore v The State of Western Australia [2019] WASCA 35
MPD v The State of Western Australia [2008] WASCA 57
Munda v The State of Western Australia [2013] HCA 38; (2013) 249 CLR 600
Nguyen v The Queen [2016] HCA 17; (2016) 256 CLR 656
NPA v The State of Western Australia [2018] WASCA 131
Pearce v The Queen [1998] HCA 57; (1998) 194 CLR 610
Pomana v The State of Western Australia [2020] WASCA 204
PP v The State of Western Australia [2004] WASCA 144
Roffey v The State of Western Australia [2007] WASCA 246
Samson v The State of Western Australia [2011] WASCA 173
Sathitpittayayudh v The State of Western Australia [2015] WASCA 152
SWD v The State of Western Australia [2012] WASCA 76
The State of Western Australia v Akizuki [2008] WASCA 267; (2008) 192 A Crim R 373
The State of Western Australia v BKJ [2018] WASCA 136
The State of Western Australia v Cairns [2006] WASCA 178
The State of Western Australia v CGT [2018] WASCA 226
The State of Western Australia v Doyle [2017] WASCA 207
The State of Western Australia v Fyffe [2018] WASCA 173
The State of Western Australia v Hussian [2020] WASCA 186
The State of Western Australia v PJW [2015] WASCA 113
The State of Western Australia v Prince [2011] WASCA 22
Woods v The Queen (1994) 14 WAR 341
Wright v The State of Western Australia [2019] WASCA 183
YDN v The State of Western Australia [2018] WASCA 62
TABLE OF CONTENTS
QUINLAN CJ & MITCHELL JA:
BUSS P:
The facts and circumstances of the offending and the sentencing judge's sentencing remarks
Counsel for the State's submissions
Counsel for the respondent's submissions
The merits of ground 1
The merits of ground 2
The residual discretion, the outcome of the appeal and the resentencing of the respondent
QUINLAN CJ & MITCHELL JA:
We have had the considerable advantage of reading the reasons of Buss P. We agree with his Honour's statement of the general principles. For the reasons which his Honour gives, we agree that the individual sentences imposed for counts 4, 5, 6 and 7, being the charges of sexual penetration of the victim, are manifestly inadequate. Ground 1 is established. As there is no basis for exercising the court's residual discretion, the appeal must be allowed and the respondent resentenced. We agree with Buss P as to the individual sentences which should be imposed by this court on resentencing.
We also agree that ground 2, which contends that the total effective sentence of 9 years' imprisonment infringed the first limb of the totality principle, is established. We will give our own reasons for reaching that conclusion, and as to the total effective sentence which this court should impose when resentencing the respondent.
The customary sentencing standards for the most serious cases of child sexual abuse were recently reviewed by this court in MHE v The State of Western Australia.[1] As Quinlan CJ observed in that case:[2]
As with many discretionary decisions, the sentencing of an offender for sexual offences against children is a difficult exercise. All such offending is inherently serious and engenders moral revulsion.
It may seem strange to some, in those circumstances, for the court to embark on a process of placing a particular offender's conduct within a scale of severity of such conduct generally, all of which is deplorable. But that is what the law requires the court to do, both at first instance and, where necessary, on appeal. The court's duty, in that regard, requires a careful consideration of all relevant sentencing principles, together with whatever guidance may be afforded by consideration of comparable cases.
[1] MHE v The State of Western Australia [2019] WASCA 133.
[2] MHE [3] - [4].
The review of previous decisions in MHE shows that total effective sentences in excess of 10 years' imprisonment are relatively uncommon in cases involving a single victim in circumstances where the offender has pleaded guilty at an early stage of the proceedings.[3]
[3] MHE [82] - [92].
In the present case, however, there were a number of aggravating features which elevated the overall seriousness of the respondent's offending. Some of those features, while significantly aggravating, are commonly found in cases of intra-familial child sexual abuse. These include the breach of trust involved in the offending, the sustained nature of the sexual abuse represented by the counts on the indictment over a period of years, and the respondent's instructions to the victim not to tell anyone about the offending.
Other aggravating features, although tragically not uncommon in cases of child sexual abuse, make this a particularly serious case of child sexual offending. The victim was very young - only 6 - 8 years old - at the time of the offending. The nature of the sexual abuse - including penile/vaginal penetration and penile/anal penetration - was seriously aggravating, particularly given the young age of the victim. The overall criminality involved in the respondent's offending was also elevated by the fact that the sexual violence, inherent in child sexual abuse, was initially accompanied by non-sexual violence which demonstrated to the victim the futility of resistance.
Further, there are four exceptional features which very significantly aggravate the overall seriousness of the respondent's offending.
First, the complicity of the victim's mother in the respondent's offending meant that she was in an extraordinarily vulnerable position. The mother disbelieved the victim when she complained to her mother, she facilitated the respondent living with the family where he could continue to offend after the victim complained to police and she pressured the victim into withdrawing her initial complaint to police. The respondent is not criminally responsible for the mother's conduct. However the seriousness of his own criminal conduct is aggravated by the fact that he took advantage of the situation and by the fact that he escalated his sexual abuse of the victim after she told police about the respondent's earlier offending and he was charged by police.
Secondly, the respondent committed the offences charged in counts 4, 5 and 6 in breach of protective bail conditions imposed for the purpose of protecting the victim against further sexual abuse by the respondent. Such a breach of protective bail conditions is of the utmost seriousness. While general deterrence is a major sentencing consideration in any case of child sexual abuse, it is particularly important that offenders are deterred from acting in defiance of court orders designed to protect complainants. It is important that the total effective sentence reflects the aggravating feature of offending against a victim protected by a protective bail condition or a violence restraining order.
Thirdly, while psychological trauma is the inevitable product of sustained child sexual abuse, the psychological impact on the victim in the present case was particularly severe. The victim has been diagnosed by a child psychologist as suffering from severe and entrenched psychiatric conditions which have resulted in major psychopathology that has exerted a negative effect upon all arenas of her function. The severity of that effect is described in detail in the statement of the victim's grandmother.
Fourthly, the offending charged in count 7 was seriously aggravated by the resulting infection of the victim with gonorrhoea, the severe physical effects which that infection has already had on the victim (leading to 9 days' hospitalisation) and the risk of future impacts on the victim's health and prospects of having her own children. While the respondent did not know he had gonorrhoea, he was reckless as to the risk of transmission of venereal diseases. These physical consequences of the respondent's offending must be reflected in the total effective sentence imposed.
In our view, all of the above aggravating features of the respondent's overall offending combine to make this an exceptionally serious case of child sexual offending against a single victim.
The only significant mitigating factors were the respondent's pleas of guilty to the offences. The pleas of guilty do require that there be a reduction in the total effective sentence that would otherwise have been imposed absent a plea of guilty. It is important to recognise that a particularly vulnerable young victim has been spared the additional trauma of having to give evidence in the respondent's trial. As this court noted in LYN v The State of Western Australia:[4]
It was important that the mitigating effect of the pleas of guilty be reflected, not only in the individual sentences, but in the total effective sentence. That is particularly so in a case involving sexual offending against child complainants. The process of giving evidence of such offences is often re-traumatising and damaging for the victims. Unless the benefits to the victims and the State resulting from pleas of guilty are properly reflected in the total effective sentence, there will be little
incentive for an offender to plead guilty. The absence of such an incentive will increase the number of victims who are exposed to the risk of further psychological harm through the requirement for them to participate in the trial process. This court has previously recognised the appropriateness of a substantial discount for a plea of guilty in cases of sexual offending against children. (footnotes omitted)
[4] LYN v The State of Western Australia [2019] WASCA 45 [51], approved in MHE [6], [83].
However, notwithstanding the mitigating effect of the pleas of guilty, the total effective sentence imposed by the sentencing judge failed to reflect the overall criminality involved in all of the offences viewed in their entirety, having regard to all relevant facts and circumstances including those referable to the respondent personally. Given the aggravating features noted above, and recognising the pleas of guilty, the total effective sentence of 9 years' imprisonment was unreasonable or plainly unjust. Ground 2 is established.
In our view, absent the mitigating effect of the pleas of guilty, a total effective sentence of 15 years' imprisonment would have been appropriate in the present case. Having regard to the pleas of guilty, and all relevant circumstances and sentencing considerations, the appropriate total effective sentence is 12 years' imprisonment. We would achieve that result by ordering the new sentences on counts 4 and 5 to be served cumulatively upon each other, and all other sentences to be served concurrently. We agree with Buss P that the respondent should be made eligible for parole, and the sentence backdated to 22 August 2018.
BUSS P:
This is a State appeal against sentence.
The respondent was charged on indictment with nine counts of sex offending against his de facto child.
On 21 November 2019, the respondent pleaded guilty in the District Court to counts 1, 2, 4, 5, 6 and 7. The State accepted those pleas in full discharge of the indictment.
Count 1 alleged that on an unknown date between 29 January 2016 and 5 October 2016, the respondent indecently dealt with the complainant, a child who he then knew to be his de facto child, by procuring the complainant to lick his breast and that the complainant was a child under the age of 16 years, contrary to s 329(4) read with s 329(10)(a) of the Criminal Code (WA) (the Code).
Count 2 alleged that on the same date and at the same place as in count 1, the respondent indecently dealt with the complainant, a child who he then knew to be his de facto child, by touching her buttocks with his hands, and that the complainant was a child under the age of 16 years, contrary to s 329(4) read with s 329(10)(a) of the Code.
Count 4 alleged that on an unknown date between 29 January 2016 and 28 January 2018, the respondent sexually penetrated the complainant, a child who he then knew to be his de facto child, by penetrating her vagina with his penis, and that the complainant was a child under the age of 16 years, contrary to s 329(2) read with s 329(9)(a) of the Code.
Count 5 alleged that on the same date and at the same place as in count 4, the respondent sexually penetrated the complainant, a child who he then knew to be his de facto child, by penetrating her anus with his penis, and that the complainant was a child under the age of 16 years, contrary to s 329(2) read with s 329(9)(a) of the Code.
Count 6 alleged that on an unknown date between 29 January 2016 and 28 January 2018, the respondent sexually penetrated the complainant, a child who he then knew to be his de facto child, by penetrating her mouth with his penis, and that the complainant was a child under the age of 16 years, contrary to s 329(2) read with s 329(9)(a) of the Code.
Count 7 alleged that on an unknown date between 1 August 2018 and 18 August 2018, the respondent sexually penetrated the complainant, a child who he then knew to be his de facto child, by penetrating her anus with his penis, and that the complainant was a child under the age of 16 years, contrary to s 329(2) read with s 329(9)(a) of the Code.
The maximum penalty for each of counts 4, 5, 6 and 7 is 20 years' imprisonment and the maximum for each of counts 1 and 2 is 10 years' imprisonment.
On 7 February 2020, Vernon DCJ imposed individual terms of immediate imprisonment as follows:
(a)count 1: 9 months;
(b)count 2: 9 months;
(c)count 4: 3 years 9 months;
(d)count 5: 3 years 9 months;
(e)count 6: 3 years; and
(f)count 7: 4 years 6 months.
On 7 February 2020, her Honour also imposed on the respondent a sentence of 3 months' immediate imprisonment for breach of a community based order. The community based order had been imposed on 17 August 2018 in the Magistrates Court for an offence of aggravated common assault. The facts of that offence were that the respondent had punched his partner to the right side of the head, causing her mouth to bleed, and he had then struck her on the head with an aluminium mop handle, causing her to become disoriented.
The sentencing judge ordered that the individual sentences for counts 2 and 4 be served cumulatively upon each other and cumulatively upon the individual sentence for count 7. Her Honour ordered that the individual sentences for counts 1, 5 and 6 be served concurrently with each other and concurrently with the individual sentence for count 7. The total effective sentence was therefore 9 years' imprisonment. The total effective sentence was backdated to 22 August 2018 to take account of time the respondent had spent in custody. A parole eligibility order was made.
Her Honour also ordered that the sentence of 3 months' immediate imprisonment for breach of the community based order commence on 7 February 2020.
The State relies upon two grounds of appeal. Ground 1 alleges that each of the individual sentences imposed for counts 4, 5, 6 and 7 was manifestly inadequate. Ground 2 alleges that the total effective sentence of 9 years' imprisonment infringed the first limb of the totality principle. On 17 April 2020, I granted leave to appeal on each of the grounds of appeal.
I would allow the appeal. The sentencing judge's sentencing decision should be set aside. This court should resentence the respondent.
The facts and circumstances of the offending and the sentencing judge's sentencing remarks
The facts and circumstances of the offending were not in dispute before the sentencing judge and are not in contest on the appeal.
During her sentencing remarks, her Honour made findings as follows:
(a)The six counts on the indictment were representative of an ongoing course of conduct over a period of two and a half years.
(b)The complainant was born in 2010. She was aged between 6 and 7 when counts 1 and 2 were committed; she was aged 6 or 7 when counts 4, 5 and 6 were committed; and she was aged 8 when count 7 was committed.
(c)The respondent was 39 years older than the complainant.
(d)The complainant was the respondent's de facto daughter. At all material times, the complainant was in the care of her mother and the respondent. The complainant was subject to the respondent's power and authority and was therefore vulnerable.
(e)The respondent sexually abused the complainant in her home.
(f)The respondent's offending constituted a gross breach of trust.
(g)When the complainant made a complaint to her mother about the offending charged in counts 1 and 2, her mother believed the respondent's denials. The respondent and the complainant therefore knew that the mother would provide no assistance to the complainant. That circumstance increased the complainant's vulnerability.
(h)Later, the complainant made a complaint to her grandmother. This resulted in the respondent's arrest on 11 October 2016. He was then charged with the offences pleaded in counts 1 and 2.
(i)After being charged with the offences pleaded in counts 1 and 2, the respondent was released on bail, subject to conditions designed to protect the complainant. However, with the assistance of the mother, the respondent breached the protective bail conditions by returning to the family home and continuing to live with the mother and the complainant. His offending against the complainant escalated.
(j)The offences charged in counts 4, 5 and 6 were committed while the respondent was on bail and subject to the protective bail conditions.
(k)The charges pleaded in counts 1 and 2 were discontinued in February 2018 because the complainant withdrew her complaint. It appears that the complaint was withdrawn as a result of pressure exerted on the complainant by her mother. Consequent upon the withdrawal of the complaint, the respondent was not on bail when he committed count 7.
(l)The complainant was able to escape from the family home occasionally by visiting her paternal relatives. However, she was always returned to her mother and the respondent. The respondent's sexual abuse continued despite the complainant's paternal relatives having made complaints to the Department of Child Protection.
(m)The respondent used coercion to secure the complainant's submission to the offending charged in count 1, by kicking the complainant when she said 'no'. The respondent also used coercion to secure the complainant's submission to the offending charged in count 2, by squeezing the complainant's buttocks and causing bleeding.
(n)As the offending progressed, it became a normal part of the complainant's life, to be tolerated as best as she could manage, and it was unnecessary for the respondent to coerce her.
(o)The offending in count 4 involved penile‑vaginal penetration. The offending in counts 5 and 7 involved penile‑anal penetration. The offending in count 6 involved penile‑oral penetration.
(p)When he was committing the offences charged in counts 4, 5 and 7, the respondent covered the complainant's face. This increased the complainant's vulnerability.
(q)After he committed count 7, the respondent told the complainant not to tell anyone what had happened.
(r)The sexual abuse the subject of counts 4, 5, 6 and 7 was premeditated and planned.
(s)When he committed count 7, the respondent had a venereal disease (gonorrhoea) which he transmitted to the complainant. As a result, the complainant presented at the emergency department of the Perth Children's Hospital on 18 August 2018 with abdominal pain, vaginal discharge, a fever and other symptoms. The complainant suffered from severe pelvic inflammatory disease, which is a bacterial infection of the upper genital tract. Complications of that disease include ongoing pelvic pain, scarring of the genital tract and increased risk of infertility.
(t)The severe pelvic inflammatory disease spread to the complainant's peritoneal cavity. She developed peritonitis and required surgery. There may be long‑term consequences for the complainant in light of the known complications of pelvic inflammatory disease. However, whether the complainant will suffer from any of those complications is as yet unknown.
(u)The complainant spent nine days in hospital. She continues to experience abdominal pain and has difficulty controlling her bowels.
(v)Her Honour was not satisfied that the respondent knew that he had gonorrhoea when he committed count 7. However, the respondent was reckless about the possible risk of disease as he did not use any form of protection when he committed counts 4, 5, 6 and 7.
(w)The diagnosis of gonorrhoea, when the complainant was admitted to the emergency department of the Perth Children's Hospital, brought an end to the respondent's sexual abuse. He did not cease offending voluntarily.
(x)The complainant has suffered and continues to suffer greatly. She is highly disturbed and traumatised.
(y)The respondent's motive in offending against the complainant was, most likely, sexual gratification. He abused the child because she was available. She was so young and became so accustomed to the abuse that she was compliant. The respondent thought that he could avoid responsibility for the offending, which he did for a long time.
(z)The respondent was aged 49 when sentenced. His childhood was mostly stable, apart from some alcohol abuse by his parents and some violence between them. The respondent has no formal qualifications, but has a consistent work history. He suffers from diabetes and depression, but there was no suggestion that those conditions could not be treated adequately in custody. The respondent occasionally used methylamphetamine, but that did not appear to be related to the offending. The respondent had no previous convictions for sexual offending. However, his criminal history included convictions for serious driving offences and convictions for assault.
The pleas of guilty were the only significant mitigating factor. The sentencing judge accepted that the plea on count 7 was made at the first reasonable opportunity; the pleas on counts 4, 5 and 6 were early pleas; and the pleas on counts 1 and 2 were not early but were made well before trial. Pursuant to s 9AA of the Sentencing Act 1995 (WA), her Honour allowed discounts of 25% on count 7; 20% on each of counts 4, 5 and 6; and 15% on each of counts 1 and 2.
The information before her Honour included a report dated 6 December 2019 from Dr Danny Shub, a child, adolescent and adult psychiatrist; a report dated 29 September 2018 from a psychologist, Erin Sweeny; a pre‑sentence report dated 16 December 2019; and a victim impact statement dated 11 December 2019 from the complainant's paternal grandmother and guardian.
Dr Shub stated in his report that the complainant's clinical profile met the diagnostic criteria for complex post‑traumatic stress disorder. The complainant's disorder is of significant severity and is characterised by sustained re‑experiencing phenomena, dissociative episodes, avoidant behaviours, emotional lability and entrenched negative conditions. The complainant also exhibits significant co‑morbid generalised anxiety‑based and depressive symptoms. Dr Shub was of the view that the sexual abuse experienced by the complainant was 'at the very severe end of the spectrum, and has resulted in major psychopathology which has exerted a negative effect upon all arenas of her functioning'. Dr Shub said that the complainant's condition is 'severe and entrenched' and is likely to continue to generate 'major difficulties for her for the foreseeable future'. She will require extensive ongoing treatment.
Ms Sweeny interviewed and assessed the respondent. She said that he presented as highly ashamed of his actions and concerned about the wellbeing of the complainant. The respondent displayed some awareness of the impact his offending has had upon the complainant and other people. Ms Sweeny considered that the respondent was of average risk of reoffending in a sexual way. However, Ms Sweeny was only informed of the offending the subject of count 7. Her Honour was satisfied that the respondent was at a high risk of reoffending. The respondent could address that risk, if he wished to do so, by undergoing treatment in prison.
The author of the pre‑sentence report stated:
(a)Despite his reported expression of remorse for his criminal conduct, the respondent had not demonstrated any insight.
(b)The respondent's explanations for his offending appeared to be 'justifications for the breach of trust in his role as step‑father to the victim'. The respondent 'attempted to promote himself as the more favourable parent … whilst his "drug addicted" partner left [the children] alone with him'.
The victim impact statement revealed that since August 2018 the complainant has been in the full‑time care of her grandmother. The grandmother said that the impact on the complainant of the respondent's sexual abuse had been profound and pervasive. The complainant is highly disturbed and traumatised. The sexual abuse has affected every aspect of the complainant's life and functioning. When the complainant first came into the grandmother's care in August 2018, the complainant's psychological state was profoundly disturbed. She displayed extreme regressive behaviours, including 'rocking and curling up into a ball, chronic self‑soothing masturbatory behaviours and faecal smearing'. She displayed 'sustained dissociative phenomena'. Although some of the more extreme symptoms have been addressed with intensive psychotherapy, the complainant remains highly disturbed. The complainant cannot regulate her emotions. She often sobs for hours and cannot be comforted. She is angry and aggressive. This has seriously affected her social functioning and peer relationships. She has experienced major difficulties at school, including victimisation and bullying. The complainant is frequently despondent and withdrawn, and has chronic low self‑esteem. She binge eats to comfort herself when she is distressed. With intensive tutoring and assistance in the classroom, the complainant has been able to make some progress at school. However, she continues to find academic engagement extremely challenging. The complainant demonstrates sexualised behaviours, indiscriminate affection to men, and her sense of boundaries is highly inappropriate.
Counsel for the State's submissions
As to ground 1, counsel for the State submitted that error should be inferred from each of the individual sentences imposed on counts 4, 5, 6 and 7. It was submitted that when each of those sentences is measured against the yardstick of the maximum penalty and customary sentencing standards, having regard to the significant aggravating features of the offending, the limited available mitigation and the importance of personal and general deterrence, each individual sentence was manifestly inadequate.
As to ground 2, counsel for the State submitted that the total effective sentence of 9 years' imprisonment on counts 1, 2, 4, 5, 6 and 7 did not adequately reflect the overall criminality of the respondent's offending conduct. It was submitted that the aggravating and mitigating factors referred to by counsel in the context of ground 1 apply equally to the total effective sentence. In addition, there were aggravating factors in relation to the indecent dealing offences charged in counts 1 and 2. The sentencing judge found that those offences were towards the upper end of offending of that type (ts 95). The respondent had used coercion against the complainant when she resisted the count 1 offending and the respondent caused the complainant to bleed when he committed count 2. Counsel argued that each individual sentence for counts 1 and 2 was lenient.
Counsel for the respondent's submissions
As to ground 1, counsel for the respondent submitted that having regard to:
(a)the maximum penalty for counts 4, 5, 6 and 7;
(b)the facts and circumstances of each of those offences;
(c)the physical and psychological trauma suffered by the complainant which may have affected her ability to give evidence;
(d)the comparable sentencing cases; and
(e)all relevant sentencing factors, including the respondent's personal circumstances and the 'substantial value' of the respondent's pleas of guilty,
none of the individual sentences imposed for counts 4, 5, 6 and 7 were so inadequate as to manifest error.
As to ground 2, counsel for the respondent submitted that the total effective sentence of 9 years' imprisonment imposed by the sentencing judge was not unreasonable or plainly unjust. Her Honour imposed a substantial term of imprisonment, having regard to all the aggravating and mitigating factors, the relevant case law and all relevant sentencing considerations.
It was argued on behalf of the respondent that the individual sentences and the total effective sentence were consistent with sentences customarily imposed for comparable offending.
The merits of ground 1
A ground of appeal which asserts that a sentence is manifestly inadequate asserts the existence of an implied error. It is necessary, in determining whether a sentence is manifestly inadequate, to examine it from the perspective of the maximum sentence prescribed by law for the relevant offence, the standards of sentencing customarily observed with respect to that offence, the place which the criminal conduct occupies on the scale of seriousness of offences of the kind in question, and the offender's personal circumstances.
The guidance afforded by comparable cases is flexible rather than rigid. The mere fact a sentence is within the range of other sentences imposed for similar offending does not necessarily establish that there was an appropriate exercise of the sentencing discretion in the particular case. Similarly, the mere fact a sentence is outside the range does not necessarily establish that the exercise of the sentencing discretion in the particular case miscarried. A sentencing range for comparable offending is merely one of the factors to be taken into account in deciding whether a sentence is manifestly inadequate. A range of sentences customarily imposed is of significance for the purpose of ensuring broad consistency in the sentencing of offenders in broadly comparable cases. However, a sentencing range for comparable cases does not fix the range of a sound exercise of the sentencing discretion in a particular case.
When an appellate court dismisses an appeal against sentence, and when it allows an appeal against sentence and resentences the offender, the court's decision on the sentencing outcome does not, of itself, fix the upper or lower limit of the range.
If, in a particular case where manifest inadequacy is alleged, there are no directly comparable cases, this court is not precluded from deciding that an individual sentence is manifestly inadequate. It merely has the consequence that this court has no directly comparable cases to provide a yardstick against which to assess the sentence. Previous sentencing ranges are only one pointer to the inadequacy of a sentence.[5]
[5] Munda v The State of Western Australia [2013] HCA 38; (2013) 249 CLR 600 [38] ‑ [39] (French CJ, Hayne, Crennan, Kiefel, Gageler & Keane JJ); The State of Western Australia v Doyle [2017] WASCA 207 [36] (Buss P, Mazza JA & Hall J); McAlpine v The State of Western Australia [2018] WASCA 195 [54] (Buss P & Mazza JA).
Except where a mandatory sentence is prescribed, a sentencing judge exercises a discretionary judgment which is subject to applicable statutory provisions and judge-made law.[6]
[6] Barbaro v The Queen [2014] HCA 2; (2014) 253 CLR 58 [25] (French CJ, Hayne, Kiefel & Bell JJ).
The discretion conferred on sentencing judges is, of course, of fundamental importance and, as the respondent correctly identified, this court may not substitute its opinion as to sentencing for that of the sentencing judge merely because it would have exercised the discretion in a different manner.[7]
[7] Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665 [15] (Gleeson CJ, Gaudron, McHugh, Gummow, Kirby, Hayne & Callinan JJ).
A sentencing judge is obliged to sentence an offender in accordance with the sentencing principles set out in pt 2 div 1 of the Sentencing Act. Part 2 div 1 comprises s 6 to s 9AA.
It is well established that:
(a)a judge sentencing an offender for multiple offences must fix an appropriate sentence for each offence and then consider questions of cumulation or concurrence as well as questions of totality;
(b)if, in fixing the appropriate sentence for each offence, proper principle is not applied, orders made for cumulation or concurrence will be made on an imperfect foundation; and
(c)if an appropriate sentence is not fixed for each offence, the failure to do so may give rise to artificial claims of disparity between co‑offenders or otherwise distort general sentencing practices in relation to particular offences.
See Pearce v The Queen;[8] Nguyen v The Queen.[9]
[8] Pearce v The Queen [1998] HCA 57; (1998) 194 CLR 610 [45] ‑ [48] (McHugh, Hayne & Callinan JJ).
[9] Nguyen v The Queen [2016] HCA 17; (2016) 256 CLR 656 [37] (Bell & Keane JJ).
However, a sentencing judge may, in the application of the totality principle, achieve an appropriate total effective sentence either by ordering one or more of the individual sentences to be served wholly or partly concurrently or by reducing the otherwise appropriate length of one or more of the individual sentences. See Mill v The Queen;[10] Johnson v The Queen;[11] Nguyen [64]. Although the joint judgment in Mill expressed a preference for achieving an appropriate total effective sentence by, where practicable, making one or more of the individual sentences wholly or partly concurrent, it is not erroneous for a sentencing judge to lower one or more of the individual sentences below what would otherwise be appropriate.
[10] Mill v The Queen [1988] HCA 70; (1988) 166 CLR 59, 63 (Wilson, Deane, Dawson, Toohey & Gaudron JJ).
[11] Johnson v The Queen [2004] HCA 15; (2004) 78 ALJR 616 [26] (Gummow, Callinan & Heydon JJ).
If a sentencing judge decides, in the application of the totality principle, to achieve an appropriate total effective sentence by lowering one or more of the individual sentences below what would otherwise be appropriate, the judge should expressly state that fact in his or her sentencing remarks.
In the present case, the sentencing judge did not state that she had reduced any of the individual sentences in the application of the totality principle. Nothing in her Honour's sentencing remarks indicates that she may have done so. Her Honour did not refer to totality until she considered whether the individual sentences for each count should be served concurrently or cumulatively. By that stage she had already imposed the individual sentences.
The primary sentencing considerations for offences of the kind committed by the respondent are appropriate punishment of the offender and personal and general deterrence, having regard to the need to protect vulnerable children. See Woods v The Queen;[12] PP v The State of Western Australia;[13] and M v The State of Western Australia.[14]
[12] Woods v The Queen (1994) 14 WAR 341, 345 ‑ 346 (Anderson J; Malcolm CJ & Seaman J agreeing).
[13] PP v The State of Western Australia [2004] WASCA 144 [14] (McLure J; Malcolm CJ & Murray J agreeing).
[14] 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.[15]
[15] 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 committed by the respondent (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 penalty and all relevant sentencing factors. See The State of Western Australia v Akizuki;[16] and Juma v The State of Western Australia.[17]
[16] The State of Western Australia v Akizuki [2008] WASCA 267; (2008) 192 A Crim R 373 [3], [67] ‑ [69] (Steytler P).
[17] Juma v The State of Western Australia [2011] WASCA 54 [37] - [38] (McLure P; Newnes JA & Mazza J).
I have reviewed numerous cases involving appeals against sentence for child sex offences, where the offending included an offence or offences contrary to s 329(2) read with s 329(9)(a) of the Code. Those cases include KMB v The State of Western Australia;[18] The State of Western Australia v Prince;[19] CJF v The State of Western Australia;[20] SWD v The State of Western Australia;[21] ERA v The State of Western Australia;[22] GHK v The State of Western Australia;[23] ARK v The State of Western Australia;[24] DKA v The State of Western Australia;[25] The State of Western Australia v PJW;[26] FWB v The State of Western Australia;[27] LJH v The State of Western Australia;[28] KSN v The State of Western Australia;[29] JJR v The State of Western Australia;[30] and LYN v The State of Western Australia.[31]
[18] KMB v The State of Western Australia [2010] WASCA 212.
[19] The State of Western Australia v Prince [2011] WASCA 22.
[20] CJF v The State of Western Australia [2012] WASCA 69.
[21] SWD v The State of Western Australia [2012] WASCA 76.
[22] ERA v The State of Western Australia [2013] WASCA 163.
[23] GHK v The State of Western Australia [2014] WASCA 19; (2014) 238 A Crim R 178.
[24] ARK v The State of Western Australia [2014] WASCA 45.
[25] DKA v The State of Western Australia [2015] WASCA 112.
[26] The State of Western Australia v PJW [2015] WASCA 113.
[27] FWB v The State of Western Australia [2016] WASCA 118.
[28] LJH v The State of Western Australia [2016] WASCA 155; (2016) 261 A Crim R 355.
[29] KSN v The State of Western Australia [2017] WASCA 156.
[30] JJR v The State of Western Australia [2018] WASCA 51; (2018) 272 A Crim R 209.
[31] LYN v The State of Western Australia [2019] WASCA 45.
However, of the cases I have listed at [59] above, only three, namely KMB, SWD and DKA included a ground of appeal which alleged that individual sentences were manifestly excessive. The cases I have listed at [59] above were primarily concerned with whether the total effective sentences infringed the totality principle. See also, in this context, the comments in The State of Western Australia v BKJ.[32]
[32] The State of Western Australia v BKJ [2018] WASCA 136 [104] (Buss P, Mazza & Mitchell JJA).
In KMB, the appellant was charged with numerous child sex offences. He was convicted after trial. Count 1 alleged that between 1 January 1997 and 14 June 2005, the appellant engaged in a sexual relationship with a child under the age of 16 years, contrary to s 321A of the Code. The maximum penalty for that offence is 20 years' imprisonment. The appellant was sentenced to 10 years 6 months' imprisonment on count 1. He received a total effective sentence of 14 years 6 months' imprisonment. The appellant appealed against sentence on three grounds. Ground 1 alleged that the sentence for count 1 was manifestly excessive. The other grounds were concerned with the application of the totality principle. The appellant's appeal against sentence was dismissed. The sentencing outcome in relation to count 1 is not comparable for the purposes of this appeal because count 1 concerned a different offence with different factual elements.
In SWD, the appellant was charged with six child sex offences. He was convicted after trial. There were two complainants, namely the appellant's son (who was aged 10 at the material time) and his daughter (who was aged 7 to 8 at the material time). Each count charged that the appellant sexually penetrated the complainant, a child who he then knew to be his lineal relative, and that the complainant was a child under the age of 16 years, contrary to s 329(2) read with s 329(9)(a) of the Code. The maximum penalty for each offence is 20 years' imprisonment. The counts relating to the appellant's son comprised forceful digital penetration of the son's anus (count 1) and forceful penile penetration of the son's anus (count 2). Counts 3, 4, 5 and 6 relating to the appellant's daughter all comprised forceful penile penetration of the daughter's vagina. The charged offences were representative of a broader history of sexual offending by the appellant towards his daughter over a period of six months. The abuse of the daughter did not cease voluntarily. The appellant had threatened the son and the daughter with violent retribution against members of their family if they revealed his offending. The forceful penetration of the 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. The injury was so severe that her vagina was classified as very abnormal and required reconstructive surgery. The appellant showed no insight or remorse. The sentencing judge sentenced the appellant to 4 years' imprisonment for count 1 and 6 years' imprisonment for count 2 involving his son. The sentencing judge sentenced the appellant to 8 years' imprisonment for each count involving his daughter. The total effective sentence was 14 years' imprisonment. The appellant appealed against sentence on two grounds. Ground 1 alleged that each of the individual sentences was manifestly excessive. Ground 2 alleged that the total effective sentence infringed the first limb of the totality principle. The appellant's appeal against sentence was dismissed. As to ground 1 and the allegation of manifest excess in relation to the individual sentences, Murphy JA (McLure P & Mazza JA agreeing) said [48] ‑ [51]:
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.
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 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.
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.
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.
In DKA, the appellant was charged with 20 child sex offences. After trial, he was convicted of nine counts. The counts on which the appellant was convicted included one count of digital/penile penetration (count 10) and one count of penile/vaginal penetration (count 20), contrary to s 329(2) read with s 329(9)(a) of the Code. The appellant was sentenced to 4 years' imprisonment on count 10 and 5 years 8 months' imprisonment on count 20. The total effective sentence was 7 years 8 months' imprisonment. The appellant appealed on five grounds including a ground that alleged the sentence of 5 years 8 months' imprisonment for count 20 was manifestly excessive and a ground which alleged that the total effective sentence infringed the first limb of the totality principle. At the time of the offending, the appellant was aged between 47 and 49 and the complainant was aged between 10 and 12. The penile/vaginal penetration the subject of count 20 caused the complainant significant pain and discomfort. The appellant persisted in penetrating the complainant's vagina with his penis, despite the complainant calling out and moving her body to try and avoid the appellant's actions. The offence occurred while the complainant was in her own home and under the appellant's care and supervision. She was extremely vulnerable. The offence involved some premeditation and planning. Later, the appellant endeavoured to buy the complainant's silence by giving her money. All of the offending, including count 20, caused the complainant to suffer significant long-term harm. The appellant's personal circumstances and antecedents were favourable. Otherwise, there was little by way of mitigation. The appellant did not plead guilty. He continued to deny that any of the offending had occurred and he showed no remorse or acceptance of responsibility. This court refused leave to appeal and dismissed the appellant's appeal.
In Samson v The State of Western Australia,[33] the appellant was convicted, on his plea of guilty, of one count of sexually penetrating a child under the age of 13 years, contrary to s 320(2) of the Code. The maximum penalty for that offence is 20 years' imprisonment. The appellant was sentenced to 7 years' imprisonment. The appellant appealed on two grounds. Ground 1 alleged that the sentence was manifestly excessive. The appellant was an indigenous man from a remote area. At the time of the offending, the appellant was aged 19 and the complainant was aged 5. The complainant was playing with some other children near her home. The appellant was in a vacant house a short distance from where the children were playing. The appellant called out to the complainant. She followed him to the house. He took her to a bedroom where he removed her pants and penetrated her anus with his penis. The complainant escaped and ran home crying. She suffered serious injuries including five radial lacerations, each about 1 cm in length, outside her anal orifice. The sentencing judge gave the appellant credit for his plea of guilty (which was made at an early stage) and his expression of remorse. He had cooperated with police. Her Honour noted the appellant's youth and that he had a very significant mental illness. The offending appeared to be opportunistic. However, the objective circumstances of the offence were very serious. This court dismissed the appellant's appeal.
[33] Samson v The State of Western Australia [2011] WASCA 173.
In Samson, McLure P (Newnes JA agreeing) made these observations [18]:
By any measure, a term of imprisonment of 7 years for a single offence of sexual penetration is very high, particularly when regard is had to the appellant's youth, plea of guilty and cooperation with police. However, the sentencing judge was correct to describe the circumstances of the appellant's offending as being at the highest end of the scale of seriousness of crimes of its type. By analogy with the reasoning in Victor v The State of Western Australia [2011] WASCA 94 [19], assessing the relative gravity of the sexual offence by reference to the 'Dempsey factors' is misconceived in the circumstances of this case. Further, the medical evidence establishes that this is a case where significant weight must be given to the protection of the public. The appellant is a tragic figure who is severely mentally ill. However, he has no insight into the fact or extent of his mental condition, which requires that he be on medication indefinitely. He continues to refuse medication and has expressed an intention to continue to engage in other conduct that places him at significant risk of reoffending. This unusual combination of sentencing factors justifies an unusually high sentence.
In Samson [42], Hall J noted that in LSC v The Queen[34] it was stated that a review of sentencing cases involving anal penetration of a child indicated that sentences for that kind of offending ranged between 6 and 8 years' imprisonment (equivalent to between 4 and 5 years 4 months' post‑transitional). Hall J made these comments about the range referred to in LSC:
The assistance that can be derived from LSC … is limited. The range of 6 to 8 years referred to in LSC corresponds to the range referred to by Malcolm CJ in R v Podirsky (1989) 43 A Crim R 404, 411. In VIM v The State of Western Australia [2005] WASCA 233; (2005) 31 WAR 1 [307] the Court of Appeal noted that sentences for sexual offending had significantly 'firmed up' since Podirsky. In this regard, the court referred to the better understanding of the long‑term effects such offences may have on the victim. In that case, the court was concerned with prolonged sexual offending against a child or children, but there is no reason to think that the 'firming‑up' of sentences would not equally apply to single offences. This suggests that the range referred to in LSC is no longer reliable [44].
[34] LSC v The Queen [2003] WASCA 303 [94] (Hasluck J; Murray ACJ & McKechnie J agreeing generally).
In The State of Western Australia v Fyffe,[35] the respondent was convicted, on his plea of guilty, of one count of sexually penetrating a child of or over the age of 13 years and under the age of 16 years, contrary to s 321(2) read with s 321(7)(a) of the Code. The maximum penalty for that offence is 14 years' imprisonment. The respondent was sentenced at first instance to 15 months' immediate imprisonment. The State appealed on the ground that the sentence was manifestly inadequate. At the time of the offending, the respondent was aged 22 and the complainant was aged 13. The complainant was intending to stay overnight at her family home while her parents were away. A female friend, who was about the complainant's age, was staying with the complainant. During the evening, the complainant contacted the respondent and asked him to obtain alcohol for a party she and her friend had decided to hold. The respondent and the complainant had met previously, but they knew each other primarily through Facebook Messenger. The respondent agreed to obtain alcohol. The respondent met the complainant and they walked to a bottle shop where the respondent purchased alcohol. The respondent returned with the complainant to her family home. The complainant's female friend went to meet some of the people who would be attending the party. The complainant remained at her home with the respondent. In the complainant's bedroom, the respondent put on a condom and penetrated the complainant's vagina with his penis. The sentencing judge found that there was a 'short sexual encounter involving sexual penetration'. Her Honour accepted that the complainant told the respondent she wanted him to stop. Nevertheless, the respondent continued. Her Honour accepted that the complainant could not deal with the situation and it was likely that the complainant 'froze'. Her Honour was not able to find that any element of non‑sexual violence was involved. However, her Honour was satisfied that the complainant did not in fact consent to the sexual penetration. The complainant had not had sex previously and the incident had a very significant impact upon her. The respondent was youthful, immature and had limited insight. There was no finding that he was remorseful. The respondent had a prior criminal record including a previous conviction for aggravated burglary. However, he had not been convicted of any prior offences of a sexual nature, apart from one conviction for possessing an indecent or obscene article. The respondent had not previously been in prison. Her Honour gave the respondent a 12.5% discount for his plea of guilty, pursuant to s 9AA of the Sentencing Act. This court allowed the State's appeal. Like the sentencing judge, the court allowed a discount of 12.5% for the plea of guilty. The court resentenced the respondent to 3 years 6 months' immediate imprisonment.
[35] The State of Western Australia v Fyffe [2018] WASCA 173.
Recently, in The State of Western Australia v Hussian,[36] this court considered the sentencing pattern for the offence of non‑aggravated sexual penetration without consent, contrary to s 325(1) of the Code, where the victim is an adult. The maximum penalty for an offence against s 325(1) is 14 years' imprisonment.
[36] The State of Western Australia v Hussian [2020] WASCA 186.
In Hussian, the court allowed the State's appeals against sentence and resentenced the offenders, who were convicted after trial. The victims were adults.
One of the offenders (Mr Pyu) had been convicted of, relevantly, three counts of offending against s 325(1) of the Code. He was resentenced by this court on those counts to 6 years' imprisonment (for penile/vaginal penetration), 5 years 6 months' imprisonment (for penile/oral penetration) and 6 years 6 months' imprisonment (for penile/vaginal penetration). Mr Pyu's offending on those counts involved two victims.
The other offender (Mr Hussian) had been convicted of, relevantly, three counts of aggravated sexual penetration without consent, contrary to s 326(1) of the Code. The maximum penalty for an offence against s 326(1) is 20 years' imprisonment. The circumstance of aggravation in relation to Mr Hussian's offending was that he was armed with an offensive weapon, namely a knife. He was resentenced by this court on the three counts of offending against s 326(1) to 7 years' imprisonment (for penile/oral penetration), 8 years 6 months' imprisonment (for penile/vaginal penetration) and 8 years' imprisonment (for penile/vaginal penetration). Mr Hussian's offending on those counts involved two victims.
I have had regard to other sentencing decisions cited by counsel for the State and counsel for the respondent.
Intermediate appellate courts have regard to comparable cases to ensure consistency in the application of relevant legal principles and to ensure broad consistency in outcome. In the case of offences against the law of Western Australia, this is done through the work of this court and its predecessor, the Court of Criminal Appeal, and not by reference to sentences passed at first instance. See Hili v The Queen;[37] Wright v The State of Western Australia;[38] Impicciatore v The State of Western Australia;[39] Pomana v The State of Western Australia.[40]
[37] Hili v The Queen [2010] HCA 45; (2010) 242 CLR 520 [56] (French CJ, Gummow, Hayne, Crennan, Kiefel & Bell JJ).
[38] Wright v The State of Western Australia [2019] WASCA 183 [29] (Buss P & Mazza JA).
[39] Impicciatore v The State of Western Australia [2020] WASCA 33 [279] (Buss P & Mazza JA).
[40] Pomana v The State of Western Australia [2020] WASCA 204 [67] (Buss P, Mitchell & Vaughan JJA).
I agree with the comments of Hall J in Samson [42] and [44] to the effect that the range of sentences identified in LSC for anal penetration of a child is no longer reliable.
As I have mentioned, it appears that there are only three decisions of this court (namely KMB, SWD and DKA) in appeals against sentence, where the offending included an offence or offences contrary to s 329(2) read with s 329(9)(a) of the Code, where the grounds of appeal included a ground alleging that the individual sentences were manifestly excessive. Three decisions of this court do not establish a sentencing range for a single offence.
However, even if a currently relevant sentencing range for a single offence contrary to s 329(2) read with s 329(9)(a) of the Code is able to be discerned from previous decisions of this court and its predecessor, it must be emphasised that the existence of such a sentencing range does not mean that a sentence outside that range is thereby manifestly excessive (or inadequate). The circumstances of offending and the personal circumstances of offenders are significantly variable. The maximum penalty is plainly of importance. An individual sentence well beyond any currently relevant sentencing range may be justified by the circumstances of a particular case. See, generally, NPA v The State of Western Australia.[41]
[41] NPA v The State of Western Australia [2018] WASCA 131 [51] (Buss P, Mitchell & Beech JJA).
I turn to the sentence of 4 years 6 months' immediate imprisonment for count 7.
The respondent's offending in relation to count 7 was extremely serious. The offending was not isolated. The sexual abuse against the complainant was ongoing. It is true that the respondent did not use force or threats in relation to this count. However, force or threats were unnecessary having regard to the age of the complainant and the respondent having normalised the sexual abuse because of its regularity and frequency. The respondent was the complainant's step-father and therefore was in a position of authority and power in relation to her. His offending constituted a gross breach of trust. The complainant was especially vulnerable because of her very young age, the respondent's status as her step-father and her mother's ongoing failure or refusal to protect her. When he was committing the offence charged in count 7, the respondent covered the complainant's face. The offending on count 7 was premeditated and planned. The respondent was not deterred by his arrest and prosecution for the offending the subject of counts 1 and 2. He indulged his sexual preoccupation with the complainant and cared nothing for her welfare and well‑being. The offending on count 7 involved unprotected sex. The respondent transmitted to the complainant a serious sexual disease. After he committed count 7, the respondent told the complainant not to tell anyone what had happened.
Count 7 was the final instance of sexual abuse by the respondent against the complainant. His offending against her was brought to an end when she was admitted to the emergency department of the Perth Children's Hospital after she had contracted gonorrhoea. Although the respondent was on bail for the offences charged in counts 1 and 2, and he deliberately breached the protective conditions of the grant of bail, when he committed counts 4, 5 and 6, the respondent was not on bail when he committed count 7. The respondent was no longer on bail because the charges pleaded in counts 1 and 2 were discontinued in February 2018 as a result of the complainant withdrawing her complaint. As I have mentioned, it appears that the complaint was withdrawn consequent upon pressure exerted on the complainant by her mother.
The respondent's conduct in relation to count 7 (and the other instances of sexual abuse) has had a devastating impact upon the complainant. Her life has been blighted.
The gonorrhoea contracted by the complainant resulted in her spending nine days in hospital. The gonorrhoea caused severe pelvic inflammatory disease. The complainant developed peritonitis and required surgery. There may be long term consequences for the complainant arising from the pelvic inflammatory disease, including the risk of scarring of the genital tract and infertility. The respondent was reckless about the possible risk of disease in that he did not use any form of protection when he committed count 7.
As explained in Dr Shub's report and the victim impact statement, the complainant is highly disturbed and traumatised as a result of the commission of count 7 (and the other sexual abuse). She has very serious psychological problems. The complainant's condition is severe and entrenched and she is likely to suffer major psychological difficulties for the foreseeable future. She will require extensive ongoing treatment.
The respondent had a prior criminal record. He was not a person of otherwise good character. The sentencing judge found that there was a high risk of the respondent reoffending. Personal deterrence was therefore an important sentencing factor.
The mitigation available to the respondent comprised, principally, his plea of guilty. He had a consistent work history. The respondent did not have any previous convictions for sexual offending, but that is not unusual in cases of this nature. The respondent had some medical conditions but they could be treated adequately in custody.
I turn to the sentence of 3 years 9 months' immediate imprisonment for each of count 4 (penile/vaginal penetration) and count 5 (penile/anal penetration).
I have already recounted the facts and circumstances of each of those offences and the sentencing judge's findings in relation to them and generally.
The extremely serious features of the respondent's offending, set out at [78] above in the context of count 7, apply to each of counts 4 and 5, apart from:
(a)the respondent transmitting to the complainant a serious sexual disease; and
(b)the respondent telling the complainant not to tell anyone what had happened.
In addition, however, the offending in relation to each of count 4 and count 5 was significantly aggravated by the offending having occurred while the respondent was on bail for the offences charged in counts 1 and 2. The respondent deliberately breached the protective conditions of the grant of bail. Those conditions had been imposed for the complainant's benefit. The respondent's behaviour in reoffending while on bail and in deliberately breaching the protective conditions demonstrated an attitude of defiance of the law and a determination not only to continue, but indeed to escalate, his offending in the knowledge that the complainant's mother would not protect her.
I turn to the sentence of 3 years' immediate imprisonment for count 6.
I have already recounted the facts and circumstances of that offence and the sentencing judge's findings in relation to that offence and generally.
The extremely serious features of the respondent's offending, set out at [78] above in the context of count 7, apply to count 6, apart from:
(a)the respondent transmitting to the complainant a serious sexual disease; and
(b)the respondent telling the complainant not to tell anyone what had happened.
In addition, however, the offending in relation to count 6 was significantly aggravated by the offending having occurred while the respondent was on bail for the offences charged in counts 1 and 2 and by the respondent having ejaculated into the complainant's mouth.
The nature of the sexual penetration in relation to count 4 (penile/vaginal), count 5 (penile/anal) and count 7 (penile/anal) was an extremely serious feature of the respondent's offending, having regard to the complainant's very young age.
In my opinion, each of the individual sentences of imprisonment for counts 4, 5, 6 and 7 was not commensurate with the seriousness of the offence. I am satisfied, having regard to all relevant facts and circumstances and all relevant sentencing factors (including the mitigation), that the length of each of the individual sentences was unreasonable or plainly unjust.
I consider that, when each of the individual sentences for counts 4, 5, 6 and 7 is viewed from the perspective of:
(a)the maximum penalty;
(b)the facts and circumstances of the offence;
(c)the vulnerability of the complainant;
(d)the general pattern of sentences for offences of this kind;
(e)the importance of denunciation and personal and general deterrence; and
(f)all aggravating and mitigating factors,
the sentence was not merely 'lenient' or 'at the lower end of the available range'.
Each of the sentences for counts 4, 5, 6 and 7 was substantially less than the sentence that was open to her Honour on a proper exercise of her discretion. Each of the sentences was manifestly inadequate.
Ground 1 has been made out.
The merits of ground 2
The first limb of the totality principle requires that the total effective sentence imposed on an offender who has committed multiple offences must bear a proper relationship to the overall criminality involved in all of the offences (including those, if any, in respect of which the offender is still serving a term of imprisonment), viewed in their entirety, and after having regard to all relevant circumstances, including those referable to the offender personally (and including, for example, the desirability of accommodating any wish to rehabilitate), and the total effective sentences imposed in comparable cases.
The practical effect of the totality principle is, ordinarily, to arrive at an aggregate sentence which is less than that which would have been arrived at merely by adding up all of the terms appropriate for the individual offences.[42] Also, the severity or leniency of an individual sentence (which is not manifestly excessive or manifestly inadequate) is relevant in evaluating whether the total effective sentence infringes the first limb of the totality principle.[43]
[42] Roffey v The State of Western Australia [2007] WASCA 246 [26] (McLure JA; Steytler P & Miller JA agreeing).
[43] Giglia v The State of Western Australia [2010] WASCA 9 [40] (Owen JA; McLure P & Pullin JA agreeing) and Gaskell v The State of Western Australia [2018] WASCA 8 [52] ‑ [60] (Buss P), [150] ‑ [151] (Mazza & Beech JJA).
If, in a particular case where an infringement of the first limb of the totality principle is alleged, there are no directly comparable cases, this court is not precluded from deciding that a total effective sentence does infringe the first limb of the totality principle. It merely has the consequence that this court has no directly comparable cases to provide a yardstick against which to judge the adequacy of the total effective sentence imposed at first instance.[44]
[44] Moore v The State of Western Australia [2019] WASCA 35 [51] (Buss P & Mazza JA).
It is well established that where a sentencing judge's discretion has miscarried in respect of one component of a sentence including, as in the present case, a number of the individual sentences forming part of the total effective sentence, the whole of the sentencing judge's sentencing decision (including all of the sentences) must be set aside, and the offender resentenced. See, for example, McGarry v The Queen;[45] The State of Western Australia v Cairns;[46] Sathitpittayayudh v The State of Western Australia;[47] YDN v The State of Western Australia;[48] Law v The Queen.[49]
[45] McGarry v The Queen [2001] HCA 62; (2001) 207 CLR 121 [9] (Gleeson CJ, Gaudron, McHugh, Gummow & Hayne JJ).
[46] The State of Western Australia v Cairns [2006] WASCA 178 [42] (McLure JA; Buss JA agreeing).
[47] Sathitpittayayudh v The State of Western Australia [2015] WASCA 152 [28] ‑ [29] (Hall J; McLure P & Mazza JA agreeing).
[48] YDN v The State of Western Australia [2018] WASCA 62 [53] (Mazza, Mitchell & Beech JJA).
[49] Law v The Queen [2019] WASCA 81 [134] (Buss P, Beech & Pritchard JJA).
Ground 1 having been made out in relation to each of the individual sentences for counts 4, 5, 6 and 7, it is strictly unnecessary to consider ground 2 in relation to the total effective sentence. However, having regard to the extensive submissions made by the parties in relation to ground 2, I will give separate consideration to the totality issue raised by that ground.
In the present case, the respondent's overall offending comprised multiple very serious child sex offences.
I have already recounted the extremely serious features of the respondent's offending, especially in relation to counts 4, 5, 6 and 7, and the extremely serious impact of his offending upon the complainant. It is unnecessary to repeat those features. See [78] ‑ [82], [87] ‑ [88] and [91] ‑ [93] above.
I add, in relation to counts 1 and 2, the sentencing judge's findings that the respondent used coercion to secure the complainant's submission to the offending charged in count 1, by kicking the complainant when she said 'no', and that the respondent also used coercion to secure the complainant's submission to the offending charged in count 2, by squeezing the complainant's buttocks and causing bleeding. Her Honour characterised the offending on counts 1 and 2 as 'towards the upper end of offending of that type given the coercion' (ts 95). However, despite that characterisation and notwithstanding the maximum penalty of 10 years' imprisonment, her Honour imposed a lenient sentence of 9 months' immediate imprisonment for each of those counts.
I also add, in relation to the counts generally, that, as I have mentioned, the respondent's offending against the complainant was brought to an end when the complainant was admitted to the emergency department of the Perth Children's Hospital after she had contracted gonorrhoea. The respondent did not cease offending voluntarily.
As I have mentioned, in the context of ground 1, the pleas of guilty were the only significant mitigating factor.
I have taken into account, in evaluating ground 2, the total effective sentences imposed in the cases I have listed at [59] above and in other cases cited by counsel for the State and counsel for the respondent. There are some comparable features between some of those cases and the present case but there are also distinguishing features. For example:
(a)some of the cases involved a single victim and others involved multiple victims;
(b)some of the offenders pleaded guilty and others pleaded not guilty;
(c)there are no reasonably comparable cases in which the offender committed serious child sex offences while the offender was on bail and in breach of protective conditions made for the benefit of the victim;
(d)the nature and extent of the physical injuries combined with the potential long term physical consequences for the complainant in the present case are unusual; and
(e)the psychiatric report from Dr Shub as to the complainant's very serious psychological problems in the present case was highly probative, and reports of that kind are not usually available to a sentencing judge.
I note the following:
(a)I have had regard to the extensive review of the total effective sentences imposed for child sex offences carried out by this court in JJR and MHE v The State of Western Australia.[50]
(b)The total effective sentence imposed on appeal in Prince was lenient. The decision is of limited utility as a comparable case because it would have been open to the court on appeal to have imposed a substantially higher sentence. Prince is an outlier. See Mills v The State of Western Australia [No 2];[51] The State of Western Australia v CGT.[52]
[50] MHE v The State of Western Australia [2019] WASCA 133.
[51] Mills v The State of Western Australia [No 2] [2017] WASCA 52; (2017) 265 A Crim R 484 [52] (Buss P, Mazza JA & Beech J).
[52] The State of Western Australia v CGT [2018] WASCA 226 [65] (Buss P, Beech JA & Hall J).
In my opinion, the total effective sentence of 9 years' imprisonment imposed on the respondent in the present case did not bear a proper relationship to the overall criminality involved in all of his offences, viewed together, and having regard to all relevant facts and circumstances and all relevant sentencing factors (including all the aggravating and mitigating factors which I have mentioned). As I have mentioned, in the course of considering ground 1, significant weight had to be given to the denunciation of the respondent's criminal conduct and to personal and general deterrence. The objective facts and circumstances of the offending, viewed as a whole, were extremely serious. The total effective sentence was unreasonable or plainly unjust. It was not merely 'lenient' or 'at the lower end of the available range'. The total effective sentence was substantially less than the total effective sentence that was open to the sentencing judge on a proper exercise of her discretion.
Ground 2 has been made out.
The residual discretion, the outcome of the appeal and the resentencing of the respondent
Counsel for the respondent did not submit that the residual discretion under s 31(4)(a) of the Criminal Appeals Act 2004 (WA) should be exercised.
The residual discretion is a discretion not to interfere with a primary judge's exercise of the sentencing discretion, in the context of a State appeal, notwithstanding that appellable error has been established.
A respondent to a State appeal against sentence does not, of course, bear an onus to establish that the residual discretion should be exercised in his or her favour. Rather, it is incumbent on the State to negative any reason why the residual discretion of this court not to interfere should be exercised. See CMB v Attorney-General (NSW).[53]
[53] CMB v Attorney-General (NSW) [2015] HCA 9; (2015) 256 CLR 346 [33] ‑ [34] (French CJ & Gageler J) [66] (Kiefel, Bell & Keane JJ).
In my opinion, the intervention of this court on the State's appeal is necessary to maintain adequate standards of sentencing. In particular, the individual sentences for counts 4, 5, 6 and 7 and the total effective sentence were substantially less than the sentences open on a proper exercise of the sentencing discretion. Appellable error has been very clearly established. The public interest in the maintenance of appropriate sentencing standards for extremely serious offending of the kind that occurred in the present case decisively outweighs those matters.
I would allow the appeal.
The sentencing judge's sentencing decision, including the sentences imposed by her Honour, should be set aside.
This court has the material necessary to resentence the respondent.
On 7 December 2020, after the completion of the hearing, counsel for the respondent informed the court that there were no additional materials, apart from those before her Honour, that the respondent relied upon in connection with any resentencing by this court.
I have reduced each sentence that I would otherwise have imposed for each offence to reflect the mitigating factors referred to by the sentencing judge in her sentencing remarks. In particular, like her Honour, I have allowed discounts of 25% on count 7; 20% on each of counts 4, 5 and 6; and 15% on each of counts 1 and 2, pursuant to s 9AA of the Sentencing Act.
I would exercise the sentencing discretion afresh by imposing sentences of immediate imprisonment as follows:
(a)count 1: 9 months;
(b)count 2: 9 months;
(c)count 4: 6 years;
(d)count 5: 6 years;
(e)count 6: 5 years 6 months; and
(f)count 7: 7 years.
Although, as I have mentioned, I consider the sentences of 9 months' immediate imprisonment imposed by her Honour for counts 1 and 2 to have been lenient, those sentences were not challenged by the State in this appeal. In the circumstances, I have decided to impose the same sentences for those counts.
I would order that the new sentence for count 5 be served cumulatively upon the new sentence for count 7 and that all of the other new sentences be served concurrently with each other and concurrently with the new sentence for count 7. The new total effective sentence is therefore 13 years' imprisonment. I consider that this total effective sentence properly reflects the overall criminality of the respondent's offending, viewed in its entirety and having regard to all relevant facts and circumstances and all relevant sentencing factors (including all of the aggravating and mitigating factors which I have mentioned).
Like the sentencing judge, I would sentence the respondent to 3 months' immediate imprisonment for breach of the community based order. That sentence should be taken to have taken effect on 7 February 2020.
The new total effective sentence of 13 years' imprisonment should be taken to have taken effect on 22 August 2018. I would make a parole eligibility order. The respondent will be eligible to be considered for release on parole when he has served 11 years in custody calculated from 22 August 2018.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
TW
Associate to the Honourable Justice Buss
29 JANUARY 2021
19
57
2