The State of Western Australia v Henderson
[2005] WASCA 89
•20 MAY 2005
THE STATE OF WESTERN AUSTRALIA -v- HENDERSON [2005] WASCA 89
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2005] WASCA 89 | |
| THE COURT OF APPEAL (WA) | |||
| Case No: | CCA:1/2005 | 19 APRIL 2005 | |
| Coram: | WHEELER JA MCLURE JA PULLIN JA | 20/05/05 | |
| 11 | Judgment Part: | 1 of 1 | |
| Result: | Appeal allowed Respondent resentenced | ||
| B | |||
| PDF Version |
| Parties: | THE STATE OF WESTERN AUSTRALIA GORDON JAMES HENDERSON |
Catchwords: | Appeal Criminal law Sentence State appeal Whether manifest inadequacy Respondent 75 years of age Serious permanent health problems Reduced life expectancy |
Legislation: | Nil |
Case References: | Austin v The Queen (1996) 87 A Crim R 570 Bell v The Queen [2001] WASCA 40 Bishop v The Queen [2003] WASCA 79 Bosworth v The Queen [2004] WASCA 43 Dempsey v The Queen, unreported; CCA SCt of WA; Library No 960059; 9 February 1996 Dinsdale v The Queen (2000) 202 CLR 321 Liddington v The State of Western Australia [2005] WASCA 60 Mill v The Queen (1988) 166 CLR 59 R v Chilvers [2003] WASCA 87 R v Miceli [1998] 4 VR 588 R v Petchell, unreported; CCA SCt of WA; Library No 930346; 16 June 1993 R v Tiso (1990) 12 Cr App Rep (S) 122 R v Todd [1982] 2 NSWLR 517 Sell v The Queen (1995) 15 WAR 240 Smith v The Queen, unreported; CCA SCt of WA; Library No 940285; 2 June 1994 State of Western Australia v Cameron [2004] WASCA 299 State of Western Australia v JPR [2004] WASCA 183 Dick v The Queen (1994) 75 A Crim R 303 Herbert v The Queen (2003) 27 WAR 330 House v The King (1936) 55 CLR 499 James v The Queen [2000] WASCA 100 Longley v The Queen (2001) 121 A Crim R 78 Lowndes v The Queen (1999) 195 CLR 665 Mitchell v The Queen (1998) 20 WAR 257 Poole v The Queen (1999) 106 A Crim R 459 R v Patrick, unreported; CCA SCt of WA; Library No 980157; 6 April 1998 R v Wright (1997) 93 A Crim R 48 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : THE STATE OF WESTERN AUSTRALIA -v- HENDERSON [2005] WASCA 89 CORAM : WHEELER JA
- MCLURE JA
PULLIN JA
- Appellant
AND
GORDON JAMES HENDERSON
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram : GROVES DCJ
File No : BUN 96 of 2003
Catchwords:
Appeal - Criminal law - Sentence - State appeal - Whether manifest inadequacy - Respondent 75 years of age - Serious permanent health problems - Reduced life expectancy
(Page 2)
Legislation:
Nil
Result:
Appeal allowed
Respondent resentenced
Category: B
Representation:
Counsel:
Appellant : Mr D Dempster
Respondent : Mr S B Watters
Solicitors:
Appellant : State Director of Public Prosecutions
Respondent : Shaddicks Lawyers
Case(s) referred to in judgment(s):
Austin v The Queen (1996) 87 A Crim R 570
Bell v The Queen [2001] WASCA 40
Bishop v The Queen [2003] WASCA 79
Bosworth v The Queen [2004] WASCA 43
Dempsey v The Queen, unreported; CCA SCt of WA; Library No 960059; 9 February 1996
Dinsdale v The Queen (2000) 202 CLR 321
Liddington v The State of Western Australia [2005] WASCA 60
Mill v The Queen (1988) 166 CLR 59
R v Chilvers [2003] WASCA 87
R v Miceli [1998] 4 VR 588
R v Petchell, unreported; CCA SCt of WA; Library No 930346; 16 June 1993
R v Tiso (1990) 12 Cr App Rep (S) 122
R v Todd [1982] 2 NSWLR 517
Sell v The Queen (1995) 15 WAR 240
(Page 3)
Smith v The Queen, unreported; CCA SCt of WA; Library No 940285; 2 June 1994
State of Western Australia v Cameron [2004] WASCA 299
State of Western Australia v JPR [2004] WASCA 183
Case(s) also cited:
Dick v The Queen (1994) 75 A Crim R 303
Herbert v The Queen (2003) 27 WAR 330
House v The King (1936) 55 CLR 499
James v The Queen [2000] WASCA 100
Longley v The Queen (2001) 121 A Crim R 78
Lowndes v The Queen (1999) 195 CLR 665
Mitchell v The Queen (1998) 20 WAR 257
Poole v The Queen (1999) 106 A Crim R 459
R v Patrick, unreported; CCA SCt of WA; Library No 980157; 6 April 1998
R v Wright (1997) 93 A Crim R 48
(Page 4)
1 WHEELER JA: I have had the advantage of reading in draft the reasons for decision of Pullin JA. It is not necessary for me to summarise the facts giving rise to this appeal, which his Honour has accurately done. Nor is it necessary for me to refer in any detail to the relevant principles, since his Honour has clearly summarised the principles applicable in a case such as the present.
2 I am in agreement with most of what his Honour has written. In particular, I agree that this is an exceptional case and that the learned sentencing Judge was correct in taking into account the significant ill health and very poor prognosis of the respondent. However, I would nevertheless depart from the views which his Honour expressed, in a way which means that I would allow this appeal and would substitute a sentence which, while still inadequate when compared with the circumstances of the offence, is somewhat more severe than that imposed by the learned sentencing Judge.
3 Two considerations interact in leading me to the view that the learned sentencing Judge was in error in making all of the terms imposed concurrent. The first is that the offences were objectively serious. If one looks to the factors which will generally be considered in order to establish how serious an offence of this kind may be, it may be seen that the child in question was very young, being just 9 years of age when the offending commenced; that the offences were committed over a significant period of time, of at least three years; that there was an abuse of trust; and, that the offending seems to have escalated in gravity as time went on (Dempsey v The Queen, unreported; CCA SCt of WA; Library No 960059; 9 February 1996).
4 The sentences actually imposed in respect of each individual offence by the learned sentencing Judge, while not outside the appropriate range of sentences for such offences, were relatively lenient. The reflection of the total criminality of the offending, then, would have called for at least some of those terms to have been served cumulatively upon each other. Counts 1 to 3, 5, and 6 are all offences of the same kind. Counts 4, 7 and 9 all involve acts different in kind from those counts I have mentioned and different in kind from each other. A sentence proportionate to the criminality of the respondent would, in my view, have involved cumulative sentences in respect of counts 1, 4, 7 and 9.
5 Against that background, while in my view his Honour was correct in expressing the view that it was inappropriate, having regard to the respondent's very reduced life expectancy, to impose that degree of
(Page 5)
- accumulation of sentence which would otherwise be called for, his Honour erred in failing to consider whether there was some degree of accumulation which would more closely reflect the seriousness of the offending, while being appropriate in the light of the respondent's life expectancy.
6 It appears from his Honour's sentencing remarks, the relevant portion of which is quoted by Pullin JA (at [20]) that his Honour moved immediately from the conclusion that the totality of the sentences would be crushing, to the view that all sentences should be served concurrently. His Honour did not explain why that was appropriate. In reaching that conclusion, his Honour failed to have regard, as is appropriate in such exceptional cases, to the period the offender would be required to serve before being eligible for parole, in the light of his predicted life expectancy (Smith v The Queen, unreported; CCA SCt of WA; Library No 940285; 2 June 1994, p 14 per Malcolm CJ, Pidgeon and Anderson JJ; Bishop v The Queen [2003] WASCA 79 at [75] per Parker J, Malcolm CJ and Murray J agreeing).
7 As his Honour informed the respondent, he would be eligible for parole after one-half of the 15 months term imposed upon him. That is a mere 7½ months, and although Dr Terren, not unreasonably, was not prepared to put a precise figure upon the respondent's projected life expectancy, it is my view that the accumulation of a further term, in respect of one of the other counts, could not, in the circumstances, be considered to lead to the result that it would be inevitable that the respondent would die in prison. The accumulation of one further term would still lead to a sentence which was about half that appropriate to the circumstances of the offences and of the offender (leaving aside the question of the offender's health).
8 It is therefore my view that, although his Honour was correct to take the respondent's poor prognosis into account, he erred in failing to consider, having regard to the non-parole period which the respondent would be required to serve, what degree of leniency should be extended having regard to the respondent's medical condition. In doing so, he imposed a term which was not only manifestly inadequate in the light of all the circumstances other than the respondent's health, but which was also manifestly inadequate even when those circumstances are taken into account.
9 I would vary the sentence imposed by his Honour, by ordering that the sentences in respect of counts 1, 2, 3, 4, 5 and 6 (that is, all the
(Page 6)
- sentences of 12 months) be served concurrently, and that the sentences in respect of counts 7 and 9 (the sentences of 15 months) be served concurrently with each other but cumulatively upon the first set of sentences mentioned. That would give a total of 27 months, with a non-parole period of 13½ months.
10 MCLURE JA: I agree with the orders proposed by Wheeler JA for the reasons she gives.
11 PULLIN JA: This is an appeal by the State against an alleged inadequacy of sentence.
12 State appeals against sentence are likely to be rare for the reasons stated in State of Western Australia v Cameron [2004] WASCA 299 and Liddington v The State of Western Australia [2005] WASCA 60, but the principles which apply to determine whether an error occurred in sentencing when the State alleges inadequacy are the same as the principles which apply in an appeal by an offender who alleges that a sentence is excessive: Dinsdale v The Queen (2000) 202 CLR 321 at [4].
13 The single ground of appeal in this case is that the learned sentencing Judge erred in ordering that each of the terms of imprisonment be served concurrently.
14 The respondent was found guilty by a jury on 18 November 2004 of seven counts of unlawfully and indecently dealing with a child under the age of 14 years contrary to s 183 of the Criminal Code (WA) and one count of having attempted to have carnal knowledge of a person against the order of nature, contrary to s 182 of the Criminal Code. These offences took place over a four year period between August 1974 and August 1978. The Criminal Code provisions at the time provided inter alia for a maximum sentence of 7 years' imprisonment. The maximum sentence for equivalent offences has been increased since that time.
15 In or about 1969 or 1970, the respondent entered into a relationship with a woman who had two children, one of whom was the complainant. The respondent became a publican and licensee of a hotel in the country, and all of the offences occurred while the respondent was at the hotel working as the publican and licensee of the hotel. When the first offence was committed, the boy was just 9 years of age. The particulars of the offences are all set out in the learned sentencing Judge's sentencing remarks.
(Page 7)
16 At the time when the respondent was sentenced on 22 December 2004, he was 75 years of age. He was an old age pensioner and had been so for 10 years. The respondent suffered from a number of medical conditions which may be summarised as heart disease, renal impairment, gout, restless leg syndrome and vertigo. Dr Peter Terren, in a report dated 30 November 2004, which was made available to the sentencing Judge, said:
"He was extremely unwell on his first presentation with quite severe cardiac failure. This has been developing gradually over some time and he had become quite debilitated with this. He has quite poor kidney function which is somewhat limiting in terms of medications. There are other significant diagnoses including gout, probable obstructive sleep apnoea (he does not feel up to further investigation prior to his court case), rectal bleeding and some restless leg syndrome. It is also becoming complicated by the developing depressive illness. …
With his renal impairment I would expect irreversible decline and progressive deterioration over a number of years. Estimates here are a little harder to judge without serial readings but I would estimate 50% 5 year survival from the renal impairment.
He has ischaemic heart disease with previous angioplasty and stent. I don't have access to all the details with this but again with his cardiac failure the outlook for ischaemic heart disease is significantly worse and I would estimate that his survival from that point of view again would be <50% 5 year survival. …
Overall therefore I feel that his estimated survival over a 5 year period would be approximately 25-30% or less with optimal medical treatment."
17 His Honour in his sentencing remarks observed that these were serious offences and accompanied by threats to ensure that the complainant did not say anything about the respondent's conduct. His Honour also noted that the offences occurred over a four year period, that he betrayed the trust of a young person in his care, that good character references carried little weight by way of mitigation, and that the respondent showed no remorse for his conduct. His Honour considered each of the factors which were identified by the Court of Criminal Appeal in Dempsey v The Queen, unreported; CCA SCt of WA; Library
(Page 8)
- No 960059; 9 February 1996. On the other hand, his Honour noted a number of mitigating factors, including the fact that there was no previous record, there was a good work history and the health matters to which I have already referred. The first two of the factors I have just mentioned must be given very little weight in a case of this kind. His Honour noted the opinion about the respondent's life expectancy. There was no victim impact statement.
18 His Honour then sentenced the respondent to 12 months' imprisonment on counts 1 to 6 inclusive, 15 months on count 7 and 15 months on count 9 (the respondent was acquitted by direction on count 8).
19 The State makes no complaint about the adequacy of those individual sentences.
20 His Honour then said:
"As I said, I have imposed those sentences after consideration of all the mitigating factors which include your age, your health and the provisions of the amendments to the sentencing legislation. Clearly the totality of those sentences would be crushing and on the medical evidence would see that you died in gaol. It is not the object of sentencing to be vengeful or for there to be revenge, but in some cases some mercy has to be shown.
I would propose that all of the sentences be served concurrently with the sentence on count 9, so effectively the sentence of imprisonment would be 15 months. The sentence is 15 months, and under the sentencing legislation you would actually serve one-half of that term before being eligible for parole."
21 The State submits that the order that the terms all run concurrently has reduced the effective term to a level of inadequacy, considering the seriousness and totality of the offending behaviour, particularly bearing in mind the more serious counts 7 and 9 and the need for general deterrence. The State further submits that the totality principle did not justify the order for complete concurrency. The State also submits that the learned sentencing Judge "spent some time in addressing the issue of the ill-health of the offender and, given the effective term imposed, must have given too much weight to that factor", and in doing so referred to State of Western Australia v JPR [2004] WASCA 183. The State also refers to Bosworth v The Queen [2004] WASCA 43 per Malcolm CJ at [23] - [24]
(Page 9)
- where reference was made to R v Chilvers [2003] WASCA 87 at [25] - [26]. In those paragraphs, McKechnie J, with whom Anderson and Parker JJ agreed, pointed out that there are many cases dealing with sentencing offenders guilty of child sexual abuse within a family and listed the factors to be taken into account. The first listed factor is that there is "no tariff" for sexual offences.
22 It is quite obvious in this case that his Honour took substantial account of the fact that the respondent was 75 years of age with serious health problems and a short life expectancy. In my opinion he was correct to do so.
23 In Smith v The Queen, unreported; CCA SCt of WA; Library No 940285; 2 June 1994 the Court in a joint judgment said:
"In our opinion, the significance of old age is a mitigating factor, but particularly when combined with ill-health, is that it constitutes a basis on which the Court, in the exercise of mercy, may impose a sentence significantly shorter than might otherwise be the case. To that extent the need for general deterrence may be required to surrender some ground to the need to exercise mercy to take account of the possibility that the offender may not live to be released.
The effect of parole is not normally relevant in assessing the appropriate sentence to be imposed in any particular case. In our opinion, however, proper account cannot be taken of old age as a mitigating factor by assessing the possibility that the offender might not live to be released, without taking into account the period the offender would be required to serve before being eligible for release on parole."
24 This passage in Smith's case was referred to with approval by Malcolm CJ in Austin v The Queen (1996) 87 A Crim R 570 (with whom Franklyn and Murray JJ agreed). The case has also been cited with approval more recently in Bishop v The Queen [2003] WASCA 79 by Parker J at [75], Malcolm CJ and Murray J agreeing. Mercy is a permissible basis for reducing the length of a sentence. See Bell v The Queen [2001] WASCA 40 at [6] per Anderson J who cited R v Todd [1982] 2 NSWLR 517 at 519 - 520 which case was in turn cited with approval in Mill v The Queen (1988) 166 CLR 59 at 64.
25 In my opinion his Honour was correct to take into account the very advanced age of the respondent, his ill-health and poor prognosis. Had it
(Page 10)
- not been for these factors the total sentence would have been manifestly inadequate. However, in my opinion those factors properly weighed very heavily in the sentencing process. As a result, it is my opinion that the total sentence was not manifestly inadequate and his Honour was correct to structure the sentences as he did. Mercy should be shown in an appropriate case and this is such a case. Having said that, it would be remiss of me not to stress that this is an exceptional case and to repeat what was said by Anderson J in Bell's case (supra). His Honour there referred to the fact that there is Australian authority including R v Todd (supra); Mill v The Queen (supra) and R v Miceli [1998] 4 VR 588 which state that where offences are "stale", considerations of simple fairness and mercy may require leniency to be extended to the offender. His Honour however noted that there are other cases in England and Australia which say that lapse of time between the commission of the offence and its detection and punishment in cases of offences involving sexual abuse within the family, is not of itself, a significant mitigating factor. See R v Tiso (1990) 12 Cr App Rep (S) 122; R v Petchell, unreported; CCA SCt of WA; Library No 930346; 16 June 1993; Sell v The Queen (1995) 15 WAR 240. Anderson J then went on to say in Bell's case (supra) at [8]:
"8 It is not altogether easy to reconcile the cases. However, I think it reasonably clearly appears from the authorities referred to that in the general run of cases, delay will attract a significant discount only where the sentencing court concludes that there has been real progress towards rehabilitation as such or where other favourable factors have positively emerged in the time between the offences and the passing of sentence.
9 Where nothing more than mere lapse of time without any conviction is relied on for the exercise of clemency, the sentencing court could properly take the view that it was always open to the offender to give himself or herself up and accept his or her just deserts. Failure to do so and success in keeping guilt hidden ought not to be rewarded by sentencing discounts.
…
12 The point is that in cases of intra-familial sexual abuse, the offending often goes undetected for a long time, the offender will often be a person who has led an otherwise blameless life, will often be of no danger to anyone
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- except children in the family and will usually be most unlikely to reoffend once the offending in question is disclosed, or the opportunity to commit offences against the particular complainant has gone. Because these are common features in cases of this kind, they are not of much mitigatory weight. Other sentencing considerations overwhelm them. Sentencing objectives in this kind of case focus on the need to protect young, defenceless children from abuse at the hands of adults who are in a position of trust and authority over them in the family setting and who are in a position to conceal their offending."
26 When his Honour referred to "other favourable factors" in [8], his Honour was clearly referring to other mitigating factors.
27 I agree with Anderson J's comments. Having said that, I repeat that this is an exceptional case. The respondent is not only very old but he has some serious permanent health problems and, more importantly, there is uncontradicted medical opinion that these problems substantially reduce his expectation of life in the manner indicated above, with the result that if the sentence which would usually be imposed were imposed, the respondent would probably die in gaol.
28 For those reasons I would dismiss the appeal.
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