The State of Western Australia v FJG - [2012] WASCA 206

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE COURT OF APPEAL (WA)

CITATION: THE STATE OF WESTERN AUSTRALIA -v- FJG [2012] WASCA 206

CORAM: McLURE P
BUSS JA
MAZZA JA

HEARD: 23 APRIL 2012

DELIVERED : 17 OCTOBER 2012

FILE NO/S: CACR 142 of 2011

BETWEEN: THE STATE OF WESTERN AUSTRALIA
Appellant
AND
FJG
Respondent

ON APPEAL FROM:
Jurisdiction              :  DISTRICT COURT OF WESTERN AUSTRALIA
Coram  :DERRICK DCJ
File No  :IND BRO 31 of 2010

Catchwords:

Criminal law - Appeal against sentence - Whether total effective sentence breached the totality principle - Whether sentence was manifestly inadequate

Legislation:

Nil

Result:

Appeal allowed

Category: B

Representation:

Counsel:

Appellant: Mr J McGrath SC
Respondent: Mr A L Troy

Solicitors:

Appellant: Director of Public Prosecutions (WA)
Respondent: Julia Barber & Co (Legal) Pty Ltd

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

Bell v The Queen [2001] WASCA 40
Bishop v The Queen [2003] WASCA 79
BPR v The State of Western Australia [No 2] [2007] WASCA 200
Carroll v The Queen [2009] HCA 13; (2009) 254 ALR 379
CJF v The State of Western Australia [2012] WASCA 69
Eriha v The State of Western Australia [2011] WASCA 167
FGC v The State of Western Australia [2008] WASCA 47
Gulyas v The State of Western Australia [2007] WASCA 263; (2007) 178 A Crim R 539
House v The King (1936) 55 CLR 499
KMB v The State of Western Australia [2010] WASCA 212
MAS v The State of Western Australia [2012] WASCA 36
MMC v The State of Western Australia [2012] WASCA 187
MPD v The State of Western Australia [2008] WASCA 57
R v E, AD [2005] SASC 332; (2005) 93 SASR 20
R v Petchell (Unreported, WASCA, Library No 930346, 16 June 1993)
Roffey v The State of Western Australia [2007] WASCA 246
Schriever v The State of Western Australia [2008] WASCA 133
Scook v The Queen [2008] WASCA 114; (2008) 185 A Crim R 164
Smith v The State of Western Australia [2010] WASCA 176
Stubley v The State of Western Australia [2010] WASCA 36
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 Munda [2012] WASCA 164
The State of Western Australia v Prince [2011] WASCA 22
The State of Western Australia v Viskari [2008] WASCA 143
VIM v The State of Western Australia [2005] WASCA 233; (2005) 31 WAR 1
Woods v The Queen (1994) 14 WAR 341
Zande v The State of Western Australia [2012] WASCA 100

McLURE P: I agree with Mazza JA.
BUSS JA: I agree with Mazza JA.
MAZZA JA: The respondent was charged by indictment with 15 offences of a sexual nature against his two natural daughters, K and J. The offences were alleged to have occurred between 1977 and 1982. The respondent pleaded guilty to, or was convicted after trial of, 14 offences. On 26 August 2011, the respondent was sentenced to a total effective term of immediate imprisonment of 8 years and 6 months with eligibility for parole.
The details of the offences, including the individual sentences that were imposed, are as follows:

Offence	Victim/Age	Plea Entered	Maximum Penalty	Sentence imposed
Ct I	Indecently dealt with child under 14 years: s l83 Criminal Code (WA) ('Code')	J - 10 years	Guilty	7 years'	20 months' concurrent
Ct 2	Carnal knowledge of daughter: s 197 Code,	J- 10 years	Guilty	20 years'	4 years', cumulative on count 14, concurrent on other counts
Ct 3	Indecently dealt with child under 14 years: s 183 Code.	K - 8 years	Not guilty	7 years'	2 years' concurrent
Ct 4	Indecently dealt. with child under 14 years: s 183 Code.	K - 10 years	Not guilty	7 years'	4 years' concurrent
Ct 5	Indecently dealt with child under 14 years: s 183 Code	K - 10 years	Not guilty	7 years'	3 years' concurrent
Ct 6	Indecently dealt with child under 14 years s 183 Code.	J - 13 years	Guilty	7 years'	20 months' concurrent
Ct 7	Indecently dealt with child under 14 years: s 183 Code.	K - 11 years	Guilty	7 years'	20 months' concurrent
Ct 8	Indecently dealt with child under 14 years: s.183 Code.	K - 11 years	Not guilty	7 years'	3 years 9 months' concurrent
Ct 9	Carnal knowledge of daughter: s 197 Code.	J - 14 years	Guilty	20 years'	12 months' concurrent
Ct 10	Carnal knowledge of daughter: s 197 Code.	K - 12 years	Not guilty	20 years'	5 years 8 months'
Ct 11	Carnal knowledge of daughter: s 197 Code.	J -14 years	Not guilty	20 years'	5 years' concurrent

Ct 12	Indecently dealt with child under 14 years: s 183 Code.	K - 12 years	Not guilty	7 years'	3 years' concurrent
Ct 13	Carnal knowledge of daughter: s 197 Code.	K - 12 or 13 years	Not guilty	20 years'	5 years 8 months' concurrent
Ct 14	Carnal knowledge of daughter: s 197 Code.	K - 14 years	Not guilty	20 years'	4 years 6 months', cumulative on count 2, concurrent with other sentences
Ct 15	Indecently dealt with child under 14 years: s 183 Code.	K	Not guilty	7 years'	Not Guilty
Total Effective Sentence 8 years 6 months' imprisonment

His Honour entered a verdict of not guilty on count 15 after K's unequivocal evidence that the act the subject of that count occurred when she was 14 years of age: AB 56.
The appellant does not challenge any of the individual sentences imposed upon the respondent. Nor does the appellant allege any express error on the part of the learned sentencing judge. The appellant's single ground of appeal alleges a breach of the first limb of the totality principle in that it is said that a total effective sentence of 8 years 6 months was a manifestly inadequate reflection of the total criminality of the respondent's offending. Leave to appeal was granted on 5 November 2011.
The facts of the respondent's offending were detailed by his Honour in his sentencing reasons and are not in dispute.
By way of background, J and K are the natural daughters of the respondent and his wife. Their family lived at two residential addresses in a regional part of Western Australia. J was born in 1967 and K was born in 1969. The offending in relation to both complainants was representative of persistent sexual conduct engaged in by the respondent. In respect of J, the conduct occurred between the ages of 10 to 14 years. J described it as occurring at every opportunity when she was alone with her father: ts 123. In respect of K, the conduct occurred between the ages of 8 to 14 years. She described it as occurring hundreds of times: ts 150.
The facts of the individual offences are as follows.
On an unknown date between 7 May 1977 and 8 May 1978, when J was 10 years of age, the respondent, who was sitting in the lounge, called J to sit on his knee, which she did. The respondent put his hand up her skirt and inserted his finger into her vagina: count 1. The respondent then took J to her bedroom, locked the bedroom door, removed her pants and inserted his penis into J's vagina, engaging in sexual intercourse until he ejaculated: count 2.
Count 3 involved K. The respondent, while watching television, asked K to sit on his knee. While on his knee, the respondent kissed her and had her masturbate him until he ejaculated. While doing so, the respondent told K that all little girls that love their daddy do this and that she was not to tell anybody. In respect of count 4, when K was 10 years old, the respondent held her head against his crotch area and forced his penis into her mouth, to a point where he made her choke. K accidentally bit the respondent's penis, who responded by hitting her to the head. The respondent continued until ejaculation and made her swallow the ejaculate. K then vomited. The respondent made her clean up the vomit.
Count 5 occurred when K was wearing braces on her teeth. Despite the fact that the braces were sharp, the respondent made her perform an act of fellatio upon him.
Count 6 occurred when J was about 13 years of age, and she was being driven with the respondent to a local hardware store. While he was driving, he pulled J across the seat towards him, put his hand in her pants and inserted his finger into her vagina.
Count 7 occurred on K's 11th birthday. The respondent entered her bedroom, naked from the waist down, lay on top of her, putting his penis between her legs. He then simulated having sexual intercourse with her, ejaculating on her sheets.
Count 8 occurred when K was 11 years old. On this occasion, the respondent inserted into K's vagina an unknown object which she described in her evidence as 'long, sharp, pointy and cold'. The object hurt K badly. K told the respondent to stop, and he refused. During the process of inserting the object into K's vagina, the respondent touched her 'everywhere'. The respondent was aroused to the point where he ejaculated. The insertion of the sharp object into K's vagina caused her to bleed onto her sheets. The respondent made her scrub the sheets to get the blood out.
Count 9 was the last occasion on which the respondent offended against J. At the time J was 14 years old. The respondent had sexual intercourse with J, ejaculating into her vagina. The respondent wiped the end of his penis and asked J to lick some semen off his finger, but J refused.
Count 10 was the first time the respondent had sexual intercourse with K. At that time, K was about 12 1/2 years old. The respondent discovered that K had begun menstruating. On the occasion in question, the respondent entered K's bedroom and said to her that she was 'now a woman' and could 'handle this'. He proceeded to engage in sexual intercourse with K, ejaculating inside her vagina. K asked him to stop because the respondent was hurting her, but he refused. After the incident, the respondent saw blood on K's sheets. He then made her wash the sheets. K was so frightened by what had occurred that she slept the night in a cupboard.
Count 11 concerns an incident involving J. The respondent and others went on a fishing trip. J was 14 years old. On the last night of the trip, the respondent went to J's room and engaged in sexual intercourse with her.
Count 12 occurred when K was 12 1/2 years old and after her braces had been removed. The respondent made her perform an act of fellatio on him.
Count 13 occurred when K was 12 or 13 years of age. The respondent took her into his bedroom and forced her to have sexual intercourse with him in his bed, ejaculating inside her vagina. The respondent made K have a shower with him, in which she had to wash the respondent and the respondent washed her. Throughout this incident, K was crying and asked the respondent to stop what he was doing, without avail. The respondent told K that 'all good little girls do this with their daddy' and that it was normal.
Count 14 occurred in 1983, when K was 14 years of age. On this occasion, the respondent engaged in sexual intercourse with K.
Within a short time of committing this offence, K disclosed to a school guidance officer that the respondent had been sexually interfering with her. The matter was drawn to the attention of the Department for Community Welfare. Officers of that department spoke to the respondent. A child welfare worker, who testified at the trial, said that the respondent's response to the allegations was 'if anything at all happened, it would have happened when I was drinking'.
The respondent's wife stood by him. It appears the police were not notified of the allegations at this time and nothing more happened. The sexual conduct with respect to J was not revealed at this time.

The respondent's pleas

On 20 October 2010, the respondent pleaded guilty, before a District Court judge, to an earlier version of the indictment which contained 13 alleged offences against K and J. On 7 February 2011, he was permitted to change his pleas to not guilty on eight charges. The pleas of guilty which were maintained (and entered on the first day of trial), and for which he was sentenced, are counts 1, 2, 6, 7 and 9 of the indictment which was ultimately presented to the court and which is relevant to this appeal.
Thus in relation to J, the respondent pleaded guilty to four out of the five offences that related to her (counts 1, 2, 6 and 9), in relation to K, the respondent pleaded guilty to only one out of the 10 offences that related to her (count 7).
The respondent's pleas of guilty were entered on the basis that they were the extent of his offending against his daughters. He denied that they were representative of a continuing course of misconduct against each of them.
Each complainant gave evidence at trial of the respondent's conduct towards them. Each was cross‑examined, albeit fairly briefly.

The respondent's personal circumstances

The respondent was between the age of 34 and 40 years of age when the offences occurred. At the time he was sentenced, he was 69 years old. Thus the gap between the offending and sentence was between 28 and 34 years.
The respondent had no convictions prior to or after the offending.
After leaving school, the respondent worked for many years in the fishing industry. Upon his retirement from that work he moved to a regional town where he obtained employment as a taxi driver. He was working in that occupation until, as a result of the charges brought against him, his taxi driver's licence was suspended.
The respondent's wife of 40 years remains supportive of him. The learned trial judge was provided with character references which spoke well of the respondent.
In terms of his health, his Honour found that the respondent had no mental health issues. Evidence presented to his Honour identified various health problems, the most significant of which were high blood pressure, high cholesterol, asthma, generalized pain in the shoulders and legs due to osteoarthritis and moderate to severe noise‑induced hearing loss. The learned trial judge described them as of 'the type of health problems that are not uncommon in men of your age': ts 356. The respondent described his own state of health in evidence as 'reasonable': ts 228.
A court‑ordered psychological assessment revealed no evidence of mental illness or psychological abnormality. The author of the report noted that the respondent was not very forthcoming about his sexual development or relationships with women. She said that the respondent denied having a sexual interest in children. The respondent told the psychologist that he could not understand why his relationship with his children had broken down after his offending had come to light. The psychologist noted that the respondent unequivocally admitted only one incident of penile penetration of his daughters and that admission came only after being pressed on the point. She assessed the respondent as being a low risk of re‑offending, in part because there had been no incident in the time since the offences were committed and because of the respondent's age.

The victim impact statements

Each complainant provided a victim impact statement for the learned trial judge's consideration. These speak eloquently of the deep and long‑lasting psychological damage the respondent inflicted upon his daughters.

His Honour's sentencing remarks

His Honour's sentencing remarks are comprehensive.
His Honour found that the offences against each complainant were representative of 'long term' and 'systematic sexual abuse' by the respondent of his daughters: AB 56 ‑ 57.
He characterised the offending as 'extremely serious' and demonstrated 'a very high degree of culpability': AB 57, 60. He cited ten reasons for arriving at these conclusions being:
1.The ages of each of the victims at the time of the offending. In respect of J, the offences occurred to her between the ages of 10 and 14 years. With respect to K, the offending occurred between the ages of 8 and 14 years.
2.The offending constituted 'a horrendous breach of trust'. His Honour said that it was 'difficult to imagine a worse breach of trust': AB 58.
3.Each victim was, because of their age and the control the respondent exerted over the family, 'particularly vulnerable': AB 58.
4.The nature of the sexual activities in which the respondent engaged with both complainants was 'at the upper end of the scale of seriousness of sexual offending': AB 58.
5.The respondent's initial acts of sexual penetration with each complainant caused them pain and that it was obvious to the respondent that his other offences caused each of them distress and discomfort: AB 59.
6.In respect of count 4, which concerned K, the indecent dealing was accompanied by an act of violence, namely a blow to the head: AB 59.
7.In respect of K, there were occasions when the respondent compounded her humiliation by making her wash her sheets, either when he had ejaculated on them or when his conduct caused K to bleed on them: AB 59.
8.The offending against each complainant occurred over a lengthy period of time, about four years in the case of J and between five and six years in the case of K: AB 59.
9.The offending occurred as part of an ongoing course of sexual offending against both victims: AB 59.
10.The long‑term impact on both complainants has been significant. He said that the respondent had 'traumatised and corrupted' both of the victims and that he had 'robbed them of their childhood innocence': AB 60.
His Honour observed that the delay between the offending and sentencing was between 28 and 34 years. He did not attribute it to the conduct of the Department of Community Welfare. He found that the delay was not in itself mitigatory. However, he said that the fact of the respondent's good behaviour since committing the offences was 'of some mitigatory value': AB 61.
With respect to the respondent's health problems, his Honour concluded that, in combination with his age, they would make imprisonment 'slightly more onerous and were, to this extent, mitigatory': AB 64.
After referring to the psychological report, his Honour found that the respondent was a low risk of committing further sexual offences against children: AB 65.
His Honour found that the respondent had only 'partial remorse' in respect of J and no remorse in respect of K: AB 66.
His Honour said that he was not convinced that the respondent truly appreciated the long‑term impact his offending had upon the complainants: AB 66.
He expressly gave mitigatory weight to the respondent's pleas of guilty in respect of counts 1, 2, 6, 7 and 9, and did so on the basis that they were entered at an early opportunity: AB 67. His Honour took into account general deterrence. However, he said that because of the respondent's age, the emphasis he placed on this factor was 'somewhat less than would ordinarily be appropriate in cases of this type': AB 67.
After fixing the individual sentences for each count on the indictment, his Honour then turned to the issue of totality. His Honour referred to both limbs of the totality principle. As to the second limb of the totality principle, his Honour said:
It follows, from the need to avoid imposing a sentence on you that is crushing, that I must take account of your age.
However, it is clear from the authorities that advanced age can never be a justification for a sentence which is not otherwise fairly proportionate to the relevant offences or otherwise inappropriate. It is also clear from the authorities that there will be some cases where the circumstances are such that the offender has forfeited his or her right to an expectation of useful life after release from custody. Given the mitigatory factors that I have identified in your case, I don't think that point has yet been reached, so I do take into account your age in determining the sentence in order to avoid imposing a crushing sentence.
In my view, a total sentence of 8 years and 6 months' imprisonment appropriately reflects your overall criminality in committing the offences, having regard to all of the circumstances, including, of course, your guilty pleas and the need to avoid imposing a crushing sentence.
This sentence, in my view, appropriately reflects the balance which needs to be struck between imposing a total sentence that is proportionate to your overall criminality and the need to avoid imposing a sentence which destroys any reasonable expectation of useful life after release from custody. Were it not for your age, I would have imposed a significantly longer total sentence: AB 69 - 70.

The parties' submissions

The appellant submitted that in light of the very serious nature of the respondent's offending, as detailed by his Honour, the total effective sentence of 8 years and 6 months' imprisonment was not a proper reflection of his overall criminality and thus breached the first limb of the totality principle. The respondent submitted, in effect, that a sentence of more than 8 years and 6 months would not have been crushing: appeal ts 12 ‑ 13.
The appellant's argument relied substantially upon a comparison of the total effective sentence against the range of sentences imposed in other similar cases. It was submitted that this comparison showed that the sentence under appeal was 'at odds' with sentences imposed on other offenders and demonstrated that it was erroneously low.
The appellant submitted that the very substantial delay between the occurrence of the offences and the respondent's sentencing, his age and health, could not properly justify the total effective sentence imposed by his Honour.
Counsel for the respondent acknowledged the very serious nature of the respondent's criminal conduct and that the total effective sentence was lenient and departed from the length of sentence that was customarily imposed. However, because of the delay between the commission of the offences and the sentencing and the age and health of the respondent, along with other mitigating factors including the respondent's otherwise good character and pleas of guilty, the total effective sentence should not be disturbed.

Appellate sentencing principles

This is a State appeal against sentence pursuant to s 24(1)(a) of the Criminal Appeals Act 2004 (WA).
In Carroll v The Queen [2009] HCA 13; (2009) 254 ALR 379, Gummow, Hayne, Crennan, Kiefel and Bell JJ, in a joint judgment, confirmed that before an appellate court can intervene, error must first be established. An appellate court is not entitled to intervene where it merely disagrees with the sentence actually imposed. The High Court reaffirmed the well‑known principles in House v The King (1936) 55 CLR 499, 504 ‑ 505. In the present case, the appellant relies upon implied error, being that type of case identified in House as follows:
It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure to properly exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred.
The principle of double jeopardy no longer applies to State appeals: s 41(4) Criminal Appeals Act.

The sentencing principles relevant to this appeal

The totality principle

In this State, a generally accepted statement of the totality principle was made by McLure JA in Roffey v The State of Western Australia [2007] WASCA 246 [24] ‑ [26]:
The appellant relies on the totality principle which comprises two limbs. The first limb is that the total effective sentence must bear a proper relationship to the overall criminality involved in all the offences, viewed in their entirety and having regard to the circumstances of the case, including those referable to the offender personally: Woods v The Queen (1994) 14 WAR 341.
The second limb is that the court should not impose a 'crushing' sentence. The word crushing in this context connotes the destruction of any reasonable expectation of a useful life after release: Martino v The State of Western Australia [2006] WASCA 78 [16]. An aggregate sentence may be inappropriately long under the first limb even if it cannot be described as crushing: Jarvis v The Queen (1998) 20 WAR 201, 216 (Anderson J).
The practical effect of the totality principle is ordinarily to arrive at an aggregate sentence that is less than that which would be arrived at by simply adding up all the terms appropriate for the individual offences: R v Holder [1983] 3 NSWLR 245, 260 (Street CJ). A rationale for the totality principle is that there is assumed rehabilitation and reduced demand for retribution after the initial sentences have been served. Where the principle of totality comes into effect, it is of little importance how the ultimate aggregate is made up: R v Holder (260).
See Schriever v The State of Western Australia [2008] WASCA 133; The State of Western Australia v Viskari [2008] WASCA 143; Eriha v The State of Western Australia [2011] WASCA 167; Zande v The State of Western Australia [2012] WASCA 100.
It is unusual, as a matter of fact, for a total sentence to be reduced because it infringed the second limb of the totality principle. In the vast majority of cases where the totality principle is invoked, it is as a result of the application of the first limb. That said, there are examples where advanced age has led to a conclusion that the total effect of sentence was crushing: Stubley v The State of Western Australia [2010] WASCA 36. The rationale being that each year of a sentence represents a substantial proportion of the period of life which is left to an offender of advanced age: Stubley [411]. The concept underpinning this rationale is essentially mercy: Bishop v The Queen [2003] WASCA 79 [75]; R v E, AD [2005] SASC 332; (2005) 93 SASR 20 [38] (Doyle CJ).

Delay

By itself delay is not mitigatory: Scook v The Queen [2008] WASCA 114; (2008) 185 A Crim R 164. This has been made clear in the context of sexual offences committed against children where there has been a delay between the commission of the offences and sentencing in such cases as R v Petchell (Unreported, WASCA, Library No 930346, 16 June 1993); and Bell v The Queen [2001] WASCA 40. However, if because of the delay between the offences and sentencing it appears that personal deterrence is no longer required or real progress has been made towards an offenders rehabilitation, or other mitigating factors positively emerge such matters may be taken into account: Bell [5], [8] (Anderson J); Scook [27] (McLure JA).

The effect of advanced age

The effect of age in sentencing was analysed by Steytler P (with whom McLure & Miller JJA agreed) in Gulyas v The State of Western Australia [2007] WASCA 263; (2007) 178 A Crim R 539 [33] ‑ [54]. I respectfully adopt that analysis. Advanced age is only one of the factors which a sentencer must take into account in order to arrive at a just sentence. It does not justify the imposition of an unacceptably low sentence. Advanced age intersects with a number of issues in this case: appropriate punishment, general deterrence, health and the second limb of the totality principle.

General sentencing principles applicable to sexual offences against children

It is well established that in cases of sexual offences committed against children, the primary sentencing considerations are punishment of the offender, specific and general deterrence and the protection of vulnerable children: Woods v The Queen (1994) 14 WAR 341, 345 ‑ 346; and KMB v The State of Western Australia [2010] WASCA 212 [89] ‑ [90]. Matters personal to the offender carry less mitigatory weight: MPD v The State of Western Australia [2008] WASCA 57 [58].
There is no tariff for sexual offences because of the great variation that can occur in the circumstances of the offending and the offenders themselves. The range of sentences customarily imposed is only one factor to be considered. Further, it does not indicate the range of a sound sentencing discretion. In the end, each case must be decided having regard to its own circumstances. When considering whether a total effective sentence offends the totality principle it is appropriate to have regard to the range of sentences customarily imposed to ensure broad consistency so that sentencing does not become idiosyncratic and arbitrary: The State of Western Australia v Akizuki [2008] WASCA 267; (2008) 192 A Crim R 373 [3] (Steytler P).
The respondent's counsel's acknowledgement that the total effective sentence departed from the length of sentence customarily imposed was properly made. In VIM v The State of Western Australia [2005] WASCA 233; (2005) 31 WAR 1, the court undertook a comprehensive analysis of the range of sentences in cases of sexual offending against children decided after Woods v The Queen. That analysis revealed that sentences for multiple counts of sexual offending against children had significantly 'firmed‑up' [307]. The court examined a large number of cases set out in sch A of the reasons where the offender had committed more than five sexual offences and had pleaded guilty. The court observed that the most common sentence was approximately 6 years and 8 months and about two‑thirds of the sentences in such cases fell between a range of 6 years 8 months to 12 years 8 months. In respect of sentences imposed after trial the sample was too small and too diverse to be reliable. The court considered that it was more appropriate to scale‑up the sentences imposed after a plea of guilty by approximately one‑third to arrive at a range of sentences of between 10 ‑ 19 years 'in most cases of very serious repeated sexual offending where the offences are representative of a course of conduct' [312].
In The State of Western Australia v Prince [2011] WASCA 22, McLure P (with whom Newnes JA and I agreed) noted at [20] six comparable cases which had been decided since VIM. The outcome of those cases ranged from 6 years imprisonment to 14 years 6 months imprisonment. Four of the cases concerned sentences of 10 years imprisonment or more. The cases which were towards the lower end of the range, FGC v The State of Western Australia [2008] WASCA 47 and BPR v The State of Western Australia [No 2] [2007] WASCA 200 concern offending considerably less serious than the offending in the present case.
Since Prince three comparable cases concerning sentences imposed after trial have been decided - MAS v The State of Western Australia [2012] WASCA 36; CJF v The State of Western Australia [2012] WASCA 69; and SWD v The State of Western Australia [2012] WASCA 76. In MAS and SWD sentences of 12 years imprisonment and 14 years imprisonment were upheld while in CJF the sentence of 14 years imposed at first instance was reduced to 12 years imprisonment. See also MMC v The State of Western Australia [2012] WASCA 187 where this court refused an offender leave to appeal against a sentence of 11 years' imprisonment imposed after fast‑track pleas of guilty.

Analysis of the ground of appeal

The case that the appellant must make is that the total effective sentence of 8 years and 6 months was plainly unjust or unreasonable.
The offending, as described by the learned sentencing judge, was truly appalling. The respondent engaged in the sexual abuse of his daughters over a long period of time on a regular and frequent basis. The offending occurred when the victims were young and constituted a gross breach of parental trust. Some of the acts were accompanied by violence and humiliation. The insertion of a 'long sharp, pointy and cold' object into K's vagina which caused her to bleed was criminal conduct of the utmost seriousness. The respondent persisted with the abuse of his daughters despite the distress they were suffering. He was preoccupied with his own deviant sexual gratification and showed them no mercy. The effect on the victims has been profound. Their lives have been seriously affected on an ongoing basis. Although the overall conduct was not in the worst category of offending of its type, it was, to my mind, very close to it.
The counts in the indictment were representative offences. Although the respondent is only to be sentenced and punished for these counts, the representative nature of his offending demonstrates that the charged offences were not isolated incidents. His offending was not uncharacteristic or an aberration.
There were a few matters in mitigation. Although the long delay between the commission of the offences and sentencing is not in itself mitigatory, the respondent has been of good behaviour and is now considered a low risk of reoffending. It follows that the emphasis usually given to personal deterrence must be substantially moderated, although I do not think it can be completely eliminated having regard to the respondent's limited remorse in respect of J and the absence of remorse in respect of K as well as his lack of insight into the effects of his offending.
The respondent's partial pleas of guilty must be accorded mitigatory weight. But the weight to be given is limited. The pleas did not obviate the need for the complaints to testify and were entered on the basis that they were the extent of the respondent's offending, a basis which, in the light of his convictions on the other charges, was untrue.
The partial pleas facilitated the course of justice. However, as I have mentioned, the respondent was only partly remorseful in relation to J and had no remorse in relation to K.
There remains to be considered the respondent's age. It is this factor which, having regard to his Honour's sentencing remarks, caused him to impose a total effective sentence which he acknowledged was significantly less than would otherwise have been appropriate. His Honour found, in effect, that a sentence in excess of 8 years 6 months would have been crushing.
I accept that some leniency had to be afforded to the respondent on account of his age. His Honour found that the respondent's ailments (not all of which were necessarily age related) were such as to make imprisonment only slightly more onerous. His Honour said that the respondent's age ameliorated the effect of general deterrence 'somewhat'. In context, the use of that word connotes only a small reduction in the emphasis to be given to this factor.
However, the respondent was not of very advanced years. He was not as old as the appellants in Stubley (80 years), FGC (approximately 77 years) or Gulyas (79 years). He was in reasonable health. There was no evidence which indicated that his ailments would rapidly worsen during his incarceration. Further, there was no evidence of the respondent's predicted life expectancy or anything to indicate that he was likely to die in jail if given a longer sentence or that he would leave jail in such a state as to have no reasonable expectation of a useful life after release.
In any event, the chief executive officer of the department of the Government principally assisting the Minister in the administration of the Prisons Act 1981 (WA) is under a duty to ensure that medical care and treatment is provided to the appellant in prison. A medical officer is bound, on the request of the chief executive officer, to examine and treat the respondent if he requires medical care and treatment. See: Smith v The State of Western Australia [2010] WASCA 176 [62] ‑ [68].
Against his age and the other factors I have mentioned in this analysis favourable to the respondent must be weighed the sheer seriousness of his offending and the need to provide proper punishment and general deterrence. General deterrence remained a very important sentencing consideration in this case. It is not uncommon in cases of serious intra‑familial sexual offending for it to remain a secret for a long time. Often the offenders have gone on with their lives in a way which has not adversely affected them. Frequently for the victims, the story is altogether different. Those who offend in this way must realise that their wrongdoing can lead to long terms of imprisonment even when they are old and believe that what was in the past will stay there.
There was no information before his Honour to the effect that at any material time the respondent was suffering from any mental illness or psychological difficulty.
With great respect to his Honour the ground of appeal has been made out. Having regard to all of the circumstances of the case, the total effective sentence of 8 years and 6 months imprisonment was not a proper reflection of the respondent's overall criminality. It was not crushing as that term is understood. It was disproportionate to the seriousness of the respondent's overall offending. It was plainly unjust and unreasonable. The total effective sentence imposed by his Honour must be set aside.
In the present case, no proper basis exists for applying the discretion under s 31(4) of the Criminal Appeals Act. See The State of Western Australia v Munda [2012] WASCA 164. Counsel for the respondent did not submit that the discretion should be invoked. The total effective sentence imposed by the trial judge (8 years 6 months) was substantially less than the sentencing range open on a proper exercise of the sentencing discretion. The appellant has established very clearly the error alleged in the ground of appeal. This court's intervention is necessary to ensure that appropriate standards of sentencing are observed for very serious offences of intra-familial sex abuse against vulnerable children, despite the passage of a substantial interval since the offending.
I would substitute a total effective sentence of 10 years 6 months. In my opinion such a sentence properly reflects the respondent's total criminality having regard to all the circumstances. I would achieve this by ordering that the sentences in respect of counts 2, 3 and 14 be served cumulatively. The effect of the resentencing is that the respondent will now serve 8 years 6 months, instead of 6 years 6 months, before he becomes eligible to be considered for release on parole.