The State of Western Australia v Mojana
[2023] WASCA 189
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: THE STATE OF WESTERN AUSTRALIA -v- MOJANA [2023] WASCA 189
CORAM: MAZZA JA
VAUGHAN JA
HALL JA
HEARD: 20 NOVEMBER 2023
DELIVERED : 28 NOVEMBER 2023
PUBLISHED : 5 JANUARY 2024
FILE NO/S: CACR 34 of 2023
BETWEEN: THE STATE OF WESTERN AUSTRALIA
Appellant
AND
MARK CHILET ANTHONY MOJANA
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram: LONSDALE DCJ
File Number : IND 872 of 2021
Catchwords:
Criminal law - State appeal against sentence - Respondent convicted after trial of five counts of indecently dealing with a child under 13 years and two counts of indecently dealing with a child over 13 years and under the age of 16 years - Whether individual sentences manifestly inadequate - Whether total effective sentence infringed first limb of totality principle
Legislation:
Criminal Appeals Act 2004 (WA), s 31(4)(a)
Criminal Code (WA), s 320(4), s 321(4)
Result:
Appeal allowed
Respondent resentenced
Category: B
Representation:
Counsel:
| Appellant | : | K C Cook |
| Respondent | : | A G Elliott |
Solicitors:
| Appellant | : | Director of Public Prosecutions (WA) |
| Respondent | : | William Gerard Legal Pty Ltd |
Case(s) referred to in decision(s):
CAND v The State of Western Australia [2018] WASCA 101
CMB v Attorney-General (NSW) [2015] HCA 9; (2015) 256 CLR 346
Green v The Queen [2011] HCA 49; (2011) 244 CLR 462
MHE v The State of Western Australia [2019] WASCA 133
NTH v The State of Western Australia [2020] WASCA 22
RLB v The State of Western Australia [2021] WASCA 82
The State of Western Australia v HNU [2023] WASCA 6
The State of Western Australia v Hussian [2020] WASCA 186
The State of Western Australia v Pereira [2023] WASCA 162
The State of Western Australia v THN [2023] WASCA 18
VIM v The State of Western Australia [2005] WASCA 233; (2005) 31 WAR 1
REASONS OF THE COURT:
Introduction
This is a State appeal against sentence.
The respondent was found guilty after trial of seven counts of indecently dealing with a child. Five of the seven counts occurred on various dates between 20 February 2017 and 25 December 2019 in respect of a boy, A, who was, at the time, aged between 6 and 8 years.[1] The other two counts concerned A's brother, B, who was, relevantly, aged about 14 years. These counts occurred on separate dates between 31 August 2019 and 1 December 2019.
[1] The jury found the respondent not guilty of one count of indecent dealing with respect to A (count 3); ts 437.
On 16 March 2023, the respondent was sentenced to terms of immediate imprisonment totalling 2 years, with parole eligibility. The details of the offences and the sentences imposed, including orders for concurrency and cumulacy, are contained in the table below.
| Count | Offence | Description | Maximum penalty | Sentence imposed |
| 1 | s 320(4) of the Criminal Code (WA) (the Code) | On a date unknown between 20 February 2017 and 21 February 2019, at a suburb of Perth, the respondent indecently dealt with A, a child under the age of 13 years, by touching his crotch | 10 years' imprisonment | 6 months' imprisonment (cumulative) |
| 2 | s 320(4) of the Code | On a date unknown between 20 February 2018 and 21 February 2019, at a suburb of Perth, the respondent indecently dealt with A, a child under the age of 13 years, by touching his crotch | 10 years' imprisonment | 6 months' imprisonment (concurrent) |
| 4 | s 320(4) of the Code | On another date unknown between 20 February 2018 and 21 February 2019, in a suburb of Perth, the respondent indecently dealt with A, a child under the age of 13 years, by touching his crotch | 10 years' imprisonment | 6 months' imprisonment (concurrent) |
| 5 | s 320(4) of the Code | On 1 June 2019, at a suburb of Perth, the respondent indecently dealt with A, a child under 13 years, by touching his crotch | 10 years' imprisonment | 6 months' imprisonment (concurrent) |
| 6 | s 320(4) of the Code | On a date unknown between 1 June 2019 and 25 December 2019, at a suburb of Perth, the respondent indecently dealt with A, a child under the age of 13 years, by touching his crotch | 10 years' imprisonment | 6 months' imprisonment (concurrent) |
| 7 | s 321(4) of the Code | On a date unknown between 31 August 2019 and 1 December 2019, at a suburb of Perth, the respondent indecently dealt with B, a child over the age of 13 years and under the age of 16 years, by touching his penis | 7 years' imprisonment | 12 months' imprisonment (concurrent) |
| 8 | s 321(4) of the Code | On another date unknown between 31 August 2019 and 1 December 2019, at a suburb of Perth, the respondent indecently dealt with B, a child over the age of 13 years and under the age of 16 years, by rubbing his penis | 7 years' imprisonment | 18 months' imprisonment (head sentence) |
The appellant relied on three grounds of appeal, in respect of which leave to appeal was granted.[2] Ground 1 alleged that the individual sentences of 6 months' immediate imprisonment on counts 1, 2, 4, 5 and 6 were manifestly inadequate. Ground 2 alleged that the individual sentences imposed on counts 7 and 8 were manifestly inadequate. Ground 3 alleged that the total effective sentence of 2 years' immediate imprisonment infringed the first limb of the totality principle.
[2] Order, 1 June 2023, Mazza JA.
On 28 November 2023, this court unanimously made these orders:
1.The appeal is allowed.
2.The sentences imposed upon the respondent in indictment 872 of 2021 on 16 March 2023 are set aside.
3.The respondent is resentenced as follows:
Count 1: 12 months' immediate imprisonment
Count 2: 12 months' immediate imprisonment
Count 4: 12 months' immediate imprisonment
Count 5: 12 months' immediate imprisonment
Count 6: 9 months' immediate imprisonment
Count 7: 12 months' immediate imprisonment
Count 8: 18 months' immediate imprisonment.
4.The sentences on counts 1, 6 and 8 are to be served cumulatively and the sentences on counts 2, 4, 5 and 7 are to be served concurrently with each other and concurrently with the sentence imposed on count 8.
5.For the avoidance of doubt, the total effective sentence now imposed upon the respondent is 3 years 3 months' immediate imprisonment. The respondent remains eligible for parole and the sentence is backdated to commence on 16 March 2023.
The court said it would publish its reasons for making these orders at a later date. These are our reasons for making the orders.
The facts
The learned sentencing judge summarised the facts of the offending in her sentencing remarks. The appellant has not challenged the facts as found by her Honour, which may be stated as follows.
As mentioned, A and B are brothers. At the time of the offending, A was aged between 6 and 8 years. B was, at the time of the offending against him, around 14 years old. Their parents were living at separate addresses. The victims' father owned a restaurant in a suburb of Perth. The respondent's wife worked at the restaurant and, from time to time, the respondent worked there as well. Over time, the respondent became good friends with the victims' parents, who regarded him as a member of their family. It was through this relationship that the respondent became acquainted with the victims.
At trial, A testified that the respondent, on occasions, touched him on the area of his crotch, over his pants. While A could not recall every instance that this occurred, he was able to recall a number of specific instances that formed the basis of each of the charged offences. Count 1 occurred at the restaurant, near the cashier area. At the time, the respondent's wife was serving a customer and A's other family members were in the back of the restaurant.
Count 2 occurred on another occasion, again near the cashier area. The respondent placed his hand under A's arm, reached for A's crotch area and touched it. A's father was in the back of the restaurant.
Count 4 occurred on an occasion when A and the respondent were together in a multi‑storey car park. As they walked out of the car park, the respondent touched A on the crotch, over his clothes with the palm of his hand.
Count 5 occurred on an occasion when the respondent and his wife were at A's father's house. A recalled being next to the kitchen area when the respondent approached him and touched him on the crotch.
Count 6 occurred on an occasion when the respondent was at A's mother's house. A had been at a neighbour's house, playing with a friend. He returned to his mother's house to collect some toys. He entered the bedroom occupied by B. He saw the respondent and B playing a computer game. The respondent briefly kissed A on the lips and touched him on the crotch.
The facts of the respondent's offending against B are as follows. As to count 7, the respondent and B were in the games room at B's mother's house. The respondent kissed B on the lips and tried to get him onto a mattress. Once they were on the mattress, the respondent put his hand down the front of B's pants and touched his penis and testicles.
Count 8 occurred on another occasion in the games room at B's mother's house. B complied with a request by the respondent to give him a hug and lay down next to him. The respondent then showed B a pornographic video on his mobile telephone in which a male was engaging in penetrative sexual intercourse with a female, who looked to be underage. The respondent asked B whether he ever masturbated. He also put his hand down B's shorts, grabbed the shaft of B's penis and testicles, and rubbed up and down.
The sentencing judge found that the respondent had sent text messages to B, including multiple text messages in which the respondent said that he loved B, which her Honour found indicated that the respondent had a distorted view of the relationship between him and B.
On 7 April 2020, the respondent was arrested in relation to the offences. He admitted to police that he knew the victims and their parents, and provided an account of his relationship with them. He denied the offending.
The respondent's personal circumstances
The respondent was born in the Philippines in 1989. At the time he was sentenced, he was 33 years old. The respondent had an unremarkable childhood. He immigrated to Australia in 2007. He is married and has a young child with his wife. She remains committed to him.
The respondent has a consistent record of employment since his arrival in Australia, and, as the character references show, is well regarded within a large portion of the Filipino community, who have expressed support for him. There is no evidence of substance abuse or poor mental health. The respondent has no prior criminal convictions.
The sentencing remarks
Her Honour found that the seriousness of the offending was aggravated by the following factors:
(1)The respondent was considerably older than the victims.
(2)The offences were a breach of the trust reposed in the respondent by the victims' parents. Her Honour noted that the respondent was a trusted family friend and that the victims' parents had allowed the respondent to take the victims on holiday on one occasion.
(3)The offending was against two brothers in the same family.
(4)The offending was part of an ongoing course of conduct and could not be said to be isolated behaviour.
(5)Both victims were vulnerable. In this regard, the sentencing judge noted A's very young age, and that B was, at the time of the commission of the offences, struggling with poor self‑esteem.
Her Honour had regard to the victim impact statements written by A and B. In each of their respective statements, the victims explained how their life has changed for the worse. Each suffers from anxiety, depression and sleep difficulties. Their schooling has been adversely affected. So, too, have their relationships.
Her Honour characterised the offending against A as falling towards the lower end of the scale of seriousness, as it involved momentary touching on the outside of the victim's clothing. However, due to its repeated nature, the offending was still serious. With respect to B, her Honour said that the offending was objectively more serious because it involved touching of the skin of the victim's penis on two occasions. Her Honour noted that, in count 8, the respondent showed B pornography. Her Honour found that the respondent took advantage of B, who was, at the time, feeling very vulnerable.
Her Honour acknowledged that the respondent's offending did not involve force, threats or intimidation.
The sentencing judge stated that the respondent had shown no remorse. She accepted that the respondent had, to some extent, acknowledged the effect of the offending on A and B, and thought that 'deep down [he had] some insight into what [he had] done. Although plainly, [he was] not able to admit it'.[3]
[3] ts 452.
Her Honour said that she took into account that the respondent was generally cooperative with police during the course of their investigation, noting that he provided police with the PIN to his mobile telephone, which enabled the text messages referred to above to be obtained from the mobile telephone and for it to be forensically examined.
As to the respondent's risk of reoffending, her Honour said:[4]
There is no evidence before me that you are an elevated risk [of] reoffending. However, plainly you have certain tendencies … which require treatment, and I'm not suggesting that treatment is going to cure you of those tendencies, but what treatment will do is ensure that in the future you [do] not offend against young children again.
There are a number of protective factors in play here, first there is the support of your wife, there are the many character references from people that know you. The fact that you have been honest with other people in the community about the charges which you have been convicted of, I think is to your credit.
And the fact that people in your community know about it I think will tend to reduce the risk of your reoffending, because everybody would be aware of what you've been convicted of and will be on the lookout for any behaviour which might suggest that you're going to reoffend. I note that you will also be on a sex offender's register, so that will limit your access to children.
[4] ts 454.
After announcing the individual sentences, her Honour addressed the question of totality. She said that some accumulation was required to reflect the repeated nature of the offending, and that the respondent had committed offences against more than one victim.[5] Her Honour dealt with totality by making the orders she did for concurrency and cumulacy. She did not reduce any individual sentences for this reason.
[5] ts 455.
Legal principles
The relevant legal principles applicable to this appeal are well established and have been stated on many occasions. In the context of a State appeal against sentence, the relevant legal principles were comprehensively summarised in the recent cases of The State of Western Australia v Hussian;[6] The State of Western Australia v HNU;[7] and The State of Western Australia v Pereira.[8]
[6] The State of Western Australia v Hussian [2020] WASCA 186 [88] ‑ [97], [132] ‑ [134].
[7] The State of Western Australia v HNU [2023] WASCA 6 [59] ‑ [64].
[8] The State of Western Australia v Pereira [2023] WASCA 162 [42] - [43].
Whether an individual sentence is manifestly inadequate requires the appellate court to examine the sentence in light of the prescribed maximum penalty, the standards of sentencing customarily observed in relation to the relevant offence, the place that the offending occupies on the scale of seriousness of offences of the type in question and the offender's personal circumstances. As observed in Pereira, these considerations are not dissimilar to the factors that must be taken into account in determining whether a total effective sentence imposed on an offender who has committed multiple offences infringes the first limb of the totality principle.[9]
[9] Pereira [42].
The question for this court when considering an allegation that a total effective sentence infringes the first limb of the totality principle is whether the total effective sentence bears a proper relationship to the overall criminality involved in all the offences and after having regard to all relevant circumstances, including those referrable to the offender personally, as well as the total effective sentences imposed in comparable cases.
The critical question is whether an individual sentence, or a total effective sentence, is unreasonable or plainly unjust. Additionally, in the context of a State appeal against sentence, it should be borne in mind that the main purpose of such an appeal is to lay down principles for the governance and guidance of courts in sentencing convicted persons.[10]
[10] See Green v The Queen [2011] HCA 49; (2011) 244 CLR 462 [1].
The primary sentencing considerations in cases of sexual abuse against children are personal deterrence, general deterrence, the punishment of the offender and the protection of vulnerable children. Generally speaking, in cases involving offences of a sexual nature committed against children, the fact that an offender is otherwise of good character carries little weight.[11]
[11] VIM v The State of Western Australia [2005] WASCA 233; (2005) 31 WAR 1 [321].
It is well established that there is no tariff for cases involving sexual offences against children. While the outcomes in comparable cases are not irrelevant, they are of limited utility. As the court observed in CAND v The State of Western Australia:[12]
[B]ecause the range of circumstances of sexual offending and sexual offenders are infinitely variable, there is no established tariff for sexual offences involving children and the total effective sentence imposed in one case can only provide very limited guidance in assessing whether the total effective sentence imposed in the case under appeal is manifestly excessive, in the sense that error can be implied from the exercise of the sentencing discretion.
[12] CAND v The State of Western Australia [2018] WASCA 101 [48].
The appellant's submissions
By grounds 1 and 2, the appellant submitted that each of the individual sentences imposed on the respondent was manifestly inadequate. The appellant submitted by ground 3 that the total effective sentence infringed the first limb of the totality principle.
The appellant, in its written submissions, submitted that the inadequacy of the individual sentences contributed to the infringement of the first limb of the totality principle. However, it was submitted that ground 3 was made out regardless of whether any of the individual sentences were found to be manifestly inadequate.[13]
[13] Appellant's case, par 18.
The central contention in the grounds of appeal is that the individual and aggregate sentences failed to properly reflect the serious features of the offending.[14] The features emphasised by the appellant largely reflect the aggravating circumstances identified by the sentencing judge and set out at [20] above.
[14] Appellant's case, par 41.
In support of the grounds, the appellant cited MHE v The State of Western Australia;[15] NTH v The State of Western Australia;[16] RLB v The State of Western Australia;[17] and The State of Western Australia v THN.[18]
[15] MHE v The State of Western Australia [2019] WASCA 133.
[16] NTH v The State of Western Australia [2020] WASCA 22.
[17] RLB v The State of Western Australia [2021] WASCA 82.
[18] The State of Western Australia v THN [2023] WASCA 18.
Relevantly to grounds 1 and 2, the appellant noted the statement made in MHE,[19] that custodial sentences for a single incident of indecent dealing with a child have tended to range from 9 months to 18 months (pre‑transitional), with sentences at the high end of the range involving the fondling of genitalia.
[19] MHE [61].
As to ground 1, the appellant observed that the individual sentences of 6 months' imprisonment imposed on the respondent for the offences against A were below the range referred to in MHE. Further, the offending against A did not involve a single incident.
As to ground 2, the appellant submitted that while the individual sentences the subject of this ground came within the range referred to in MHE, the sentences failed to reflect the very serious nature of the offending in counts 7 and 8.
As to ground 3, the appellant submitted, in effect, that the offending in RLB and THN was broadly comparable to the present case. In each of these cases, a substantially higher total effective sentence was imposed. This, it was said, demonstrated that the total effective sentence of 2 years' imprisonment was 'plainly inadequate'.
The respondent's submissions
The respondent submitted, in effect, that the individual sentences and the total effective sentence were 'on the lenient side'[20] but were not erroneous. In respect of the offences against A, it was contended that because each offence involved the momentary touching of the victim's genitals over his clothing, the criminality was at the bottom end of the range of offending of this type, and the individual sentences of 6 months' imprisonment were not inadequate.[21] Nor were the individual sentences the subject of ground 2 inadequate, particularly as they came within the range of sentences referred to in MHE.
[20] Appeal ts 10, 16.
[21] Appeal ts 11, 16.
The respondent submitted that the real question in the appeal was raised by ground 3.[22] It was submitted, in substance, that the total effective sentence did not infringe the first limb of the totality principle because it properly reflected the respondent's overall criminality and all of the other circumstances of the case.
[22] Respondent's answer, par 6.
As to the comparable cases cited by the appellant, it was submitted on behalf of the respondent that they were not comparable and, thus, had no utility.
Finally, the respondent contended that in the event this court came to the conclusion that a ground or grounds had been made out, the residual discretion should be invoked in his favour to dismiss the appeal.
Disposition
As each ground of appeal alleges implied error, it is convenient to deal with them together.
The respondent was convicted of offences which carry maximum sentences of 10 years' imprisonment (counts 1, 2, 4, 5 and 6) and 7 years' imprisonment (counts 7 and 8).
A and B were brothers. Each was a child. At the relevant time, A was aged between 6 and 8 years, while B was around 14 years old. Both were vulnerable by reason of their age.
The respondent was a trusted friend of the victims' family. The victims referred to him as 'uncle'. All of the offending constituted a serious breach of this trust.
The offending in respect of A was far from a 'one‑off' event. It is plain from the sentencing judge's findings that it occurred over a period of about two years and was persistent. The offending was representative of a lengthy course of sexually abusive conduct. The offending against A was also brazen, occurring in the victim's father's restaurant and at A's parents' residences, where others were in the vicinity. The offending against B was also not a 'one‑off' event.
It was said on behalf of the respondent, in his written submissions both in the court below and in this court, that the offending against A was at a low level of criminality, involving momentary touching of A's genitals over his clothing.
In the context of sexual offending against children, the task of placing the particular deplorable conduct the subject of the offending within a scale of severity is often difficult but it is something courts are frequently required to do, both at first instance and in the appellate process.[23] If offending is said to be at a low level, it does not necessarily mean that it was not serious. Nor does it detract from the effect the conduct may have had on the victim.
[23] As to which see, Quinlan CJ's observations in MHE [4].
Unlike the offending against B, the offending against A did not involve skin on skin contact or the touching of the victim's genitals underneath his clothing in a manner that simulated masturbation. Based on the experience of this court, the acts constituting the respondent's offending against A were not as serious as in other cases. However, this is not to say that the offending against A was not serious and did not have a substantial and ongoing negative impact upon him.
A was a vulnerable young boy. The respondent was a mature adult who, as a trusted family friend, was obliged to protect A from harm. Instead, the respondent abused this friendship and, for what could only be his own sexual gratification, regularly touched the victim on his genitals, albeit on the outside of his clothing. It was a serious and persistent affront to A's bodily integrity, which should not be regarded as minor. As mentioned, the offending occurred at A's house or at his father's restaurant and was brazen. Moreover, the offending was not a momentary aberration on the respondent's part. It happened on the five occasions the subject of counts 1, 2, 4, 5 and 6, over a lengthy period of time. It was also representative of other uncharged behaviour of a similar nature towards A.
For all of these reasons, in our opinion, each offence against A involved a significant degree of criminality and was not, as contended for by the respondent, at the bottom of the scale.
Turning to counts 7 and 8 against B. The acts committed by the respondent on B were plainly very serious. Count 8 was rightly regarded by the sentencing judge as being the most serious individual offence committed by the respondent, having regard to the nature of the sexual acts and that its commission was preceded by the respondent showing B the pornographic video.
We will not repeat what we have already written about the respondent's personal circumstances. In essence, the sentencing judge held them to be favourable. However, the weight that could be given to this consideration is limited when the principles referred to at [32] above are taken into account. The respondent was able to commit the offences because he was regarded as a person of good character and could thus be trusted with the child victims. The respondent's status as a person of prior good character must also be tempered by the fact that for a period of more than two years, he committed the offences against A and B.
The respondent did not have the mitigation that would have been afforded to him if he had pleaded guilty or had been remorseful. He has acknowledged the effect the proceedings have had on A and B, but he has not taken responsibility for his conduct. The respondent does not appear to be able to admit that he has a sexual attraction towards children. He is yet to embark upon any formal treatment, which the sentencing judge observed he requires. Although 'protective factors' were found by the sentencing judge to exist that would tend to reduce the respondent's risk of reoffending, it was not said, and cannot be said, that the respondent poses no or a reduced risk of reoffending. In all, the mitigating factors available to the respondent were few and of limited weight in the sentencing process.
We have considered the small number of comparable cases cited in this appeal. It is unnecessary to repeat the facts and circumstances of each case. Apart from noting the range of sentences referred to in MHE, the cases are too small in number and their circumstances are too varied to afford any meaningful assistance in this case.
The range of sentences between 9 and 18 months' imprisonment referred to in MHE points favourably towards intervention on ground 1 and against intervention on ground 2. However, the range of sentences customarily imposed is only one factor in deciding whether an individual sentence or a total effective sentence is infected by implied error. It is important to bear in mind that the range of sentences imposed in past cases does not set the floor below or the ceiling beyond which a sentence must not go. Nor does an established range determine whether a sentence is manifestly excessive or inadequate or infringes the first limb of the totality principle.
As to ground 1, in our opinion, having regard to all of the circumstances relevant to it and mentioned above, the appellant has established that the ground has been made out. The individual sentences of 6 months' immediate imprisonment are not merely lenient; each is manifestly inadequate. In essence, this is because the individual sentences failed to reflect the aggravating circumstances of the offending against A.
Our conclusion is different in respect of ground 2. While the individual sentences on counts 7 and 8 were lenient, we have not been persuaded that they were so lenient as to be manifestly inadequate.
As to ground 3, we have been persuaded that the total effective sentence of 2 years' immediate imprisonment infringed the first limb of the totality principle. As a result of the orders for concurrency, the sentencing judge imposed an effective sentence of 6 months' immediate imprisonment for all of the offences committed by the respondent against A. To our minds, this falls a long way short of properly reflecting the respondent's total criminality for these offences. It fails to reflect, at all, the repetitive nature of the offending against A.
For these reasons, grounds 1 and 3 but not ground 2 are made out. However, before allowing the appeal, it is necessary to consider whether the residual discretion should be invoked.
The residual discretion
The legal principles with respect to the residual discretion were recently explained in THN at [52] ‑ [53] in these terms:
This court has a residual discretion under s 31(4)(a) of the Criminal Appeals Act 2004 (WA) 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 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 negate any reason why the residual discretion of this court not to interfere should be exercised.[24]
The difference in the approach of this court between offender appeals against sentence and State appeals against sentence is explicable by the purpose underpinning each category of appeals. Offender appeals are concerned with the correction of error in the particular case. State appeals are concerned with establishing principles for the guidance of sentencing judges.[25]
[24] CMB v Attorney-General (NSW) [2015] HCA 9; (2015) 256 CLR 346 [33] ‑ [34].
[25] Green v The Queen [1]; CMB [55].
In his written submissions, the respondent accepted that if ground 3 was made out, there was no basis upon which this court should exercise the residual discretion to dismiss the appeal.[26] However, in oral argument, counsel for the respondent withdrew this concession. The position of the respondent at the hearing was that the court should exercise the residual discretion because, in effect, any increase in the sentence would be relatively short.[27]
[26] Respondent's answer, par 6.
[27] Appeal ts 18.
In our opinion, intervention in the present case is necessary for five reasons. First, appellable error has been established. Secondly, appellate intervention is necessary to establish and reinforce the sentencing principles relevant to the sentencing of offenders who commit sexual offences against young children. Thirdly, intervention is required to maintain proper sentencing standards for offences of the nature committed by the respondent. Fourthly, the appeal was filed within time and heard promptly. The respondent is still to serve a portion of his non‑parole period. Fifthly, the increase in the sentences is, in the context of the original sentences that were imposed, significant.
In our view, the residual discretion to dismiss the appeal should not be invoked.
Resentencing
The court had all the materials it needed to resentence the respondent. We will not repeat the facts of the offending or the details of the respondent's personal circumstances.
In our opinion, the appropriate individual sentence for each of counts 1, 2, 4, 5 and 6 is 12 months' immediate imprisonment. While the sentences imposed in respect of counts 7 and 8 are lenient, we would not interfere with those sentences given that ground 2 has not been made out.
Some accumulation of the sentences is required in this case. There must be some accumulation of the sentences imposed in respect of the offending against A in order to reflect the persistence of that offending. There must be further accumulation of the sentences to reflect the fact that the respondent committed separate offences against B.
In our view, a total effective sentence of 3 years 3 months' immediate imprisonment is an appropriate reflection of the respondent's overall offending. In order to achieve this, and for totality reasons only, the sentence on count 6 is reduced from 12 months' immediate imprisonment to 9 months' immediate imprisonment. The total effective sentence of 3 years 3 months' immediate imprisonment is achieved by ordering the sentences on counts 1, 6 and 8 to be served cumulatively and the sentences on counts 2, 4, 5 and 7 to be served concurrently with each other and concurrently with the sentence imposed on count 8. The respondent remains eligible for parole and the new total effective sentence is backdated to commence on 16 March 2023.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
ST
Associate to the Honourable Justice Mazza
5 JANUARY 2024
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