The State of Western Australia v PJW
[2015] WASCA 113
•3 JUNE 2015
THE STATE OF WESTERN AUSTRALIA -v- PJW [2015] WASCA 113
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2015] WASCA 113 | |
| THE COURT OF APPEAL (WA) | |||
| Case No: | CACR:78/2014 | 16 FEBRUARY 2015 | |
| Coram: | MARTIN CJ BUSS JA MAZZA JA | 3/06/15 | |
| 13 | Judgment Part: | 1 of 1 | |
| Result: | Appeal allowed Total effective sentence imposed by the trial judge set aside Respondent resentenced | ||
| B | |||
| PDF Version |
| Parties: | THE STATE OF WESTERN AUSTRALIA PJW |
Catchwords: | Criminal law State appeal against sentence Respondent convicted after trial on 9 counts of child sex offending Total effective sentence of 6 years 6 months' imprisonment Totality principle |
Legislation: | Criminal Appeals Act 2004 (WA), s 31(4) Criminal Code (WA), s 329(2), s 329(4), s 329(9), s 329(10) |
Case References: | ARK v The State of Western Australia [2014] WASCA 45 CJF v The State of Western Australia [2012] WASCA 69 Downie v The State of Western Australia [2013] WASCA 244 GMS v The State of Western Australia [2009] WASCA 107 Juma v The State of Western Australia [2011] WASCA 54 LFG v The State of Western Australia [2015] WASCA 88 Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665 M v The State of Western Australia [2006] WASCA 256 MPD v The State of Western Australia [2008] WASCA 57 PP v The State of Western Australia [2004] WASCA 144 RFS v The State of Western Australia [2012] WASCA 58 Rogers v The Queen [2004] WASCA 147 Rowan v The State of Western Australia [2009] WASCA 185 The State of Western Australia v Akizuki [2008] WASCA 267; (2008) 192 A Crim R 373 The State of Western Australia v FJG [2012] WASCA 206 The State of Western Australia v Prince [2011] WASCA 22 Truscott v The State of Western Australia [2007] WASCA 62 Woods v The Queen (1994) 14 WAR 341 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : THE STATE OF WESTERN AUSTRALIA -v- PJW [2015] WASCA 113 CORAM : MARTIN CJ
- BUSS JA
MAZZA JA
- Appellant
AND
PJW
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram : WISBEY ADCJ
File No : IND 953 of 2013
Catchwords:
Criminal law - State appeal against sentence - Respondent convicted after trial on 9 counts of child sex offending - Total effective sentence of 6 years 6 months' imprisonment - Totality principle
Legislation:
Criminal Appeals Act 2004 (WA), s 31(4)
Criminal Code (WA), s 329(2), s 329(4), s 329(9), s 329(10)
Result:
Appeal allowed
Total effective sentence imposed by the trial judge set aside
Respondent resentenced
Category: B
Representation:
Counsel:
Appellant : Mr J McGrath SC
Respondent : Mr M A Perrella
Solicitors:
Appellant : Director of Public Prosecutions (WA)
Respondent : Perrella Legal
Case(s) referred to in judgment(s):
ARK v The State of Western Australia [2014] WASCA 45
CJF v The State of Western Australia [2012] WASCA 69
Downie v The State of Western Australia [2013] WASCA 244
GMS v The State of Western Australia [2009] WASCA 107
Juma v The State of Western Australia [2011] WASCA 54
LFG v The State of Western Australia [2015] WASCA 88
Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665
M v The State of Western Australia [2006] WASCA 256
MPD v The State of Western Australia [2008] WASCA 57
PP v The State of Western Australia [2004] WASCA 144
RFS v The State of Western Australia [2012] WASCA 58
Rogers v The Queen [2004] WASCA 147
Rowan v The State of Western Australia [2009] WASCA 185
The State of Western Australia v Akizuki [2008] WASCA 267; (2008) 192 A Crim R 373
The State of Western Australia v FJG [2012] WASCA 206
The State of Western Australia v Prince [2011] WASCA 22
Truscott v The State of Western Australia [2007] WASCA 62
Woods v The Queen (1994) 14 WAR 341
1 MARTIN CJ: This appeal should be allowed and the respondent resentenced in the manner proposed by Buss JA, for the reasons which he gives and with which I agree.
2 BUSS JA: This is a State appeal against sentence.
3 The respondent was charged on indictment with 11 counts of sexual offending against his young stepdaughter.
4 On 27 February 2014, after a trial in the District Court before Wisbey ADCJ and a jury, the respondent was convicted on nine counts and acquitted on two counts.
5 On 17 April 2014, the trial judge sentenced the respondent. His Honour imposed a total effective sentence of 6 years 6 months' imprisonment. A parole eligibility order was made. The total effective sentence was backdated to 8 March 2013, when the respondent was taken into custody for the offences.
6 A summary of the counts on which the respondent was convicted, and the sentences imposed for those offences, is as follows.
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The ground of appeal
7 Initially, there were four grounds of appeal.
8 However, at the hearing of the appeal, counsel for the State abandoned grounds 1, 2 and 3.
9 The remaining ground alleges that the total effective sentence infringed the first limb of the totality principle. On 20 June 2014, Mazza JA granted leave to appeal on that ground.
The facts and circumstances of the offending
10 The nine counts of offending were committed during six different incidents over a period of 10 months.
11 At the relevant time the victim was aged between 7 and 8 years. She was the biological daughter of the respondent's then partner. All of the offending occurred while the respondent was residing with the victim's mother, the victim and the victim's brother.
12 Counts 1, 2 and 3 related to an incident that occurred between February and August 2012 at the family home. The victim was asleep in a bedroom. The respondent entered the room, removed his underpants and twice inserted his finger in the victim's anus before inserting his penis in her anus.
13 Count 4 relates to an incident that occurred between 21 August 2012 and 18 January 2013 at the family home. The respondent ejaculated in the victim's mouth.
14 Counts 6 and 7 relate to an incident that occurred between 21 August 2012 and 18 January 2013 at a location in rural Western Australia. The respondent showed the victim a pornographic film. He then rubbed his penis against her anus on the outside of her underwear.
15 Count 8 relates to an incident that occurred between 30 June 2012 and 23 August 2012 at a house in rural Western Australia. The respondent invited the victim to enter a garden shed where he removed some of her clothes, lowered his pants and penetrated her anus with his penis.
16 Count 9 relates to an incident that occurred between 21 August 2012 and 18 January 2013 at the family home. The respondent entered the victim's bedroom, removed some of her clothes, removed his shorts and inserted his penis in her vagina.
17 Count 11 relates to an incident that occurred between 21 August 2012 and 18 January 2013 at a location in rural Western Australia. The respondent performed cunnilingus on the victim.
The trial judge's sentencing remarks
18 The trial judge's sentencing remarks were brief.
19 After recounting the facts and circumstances of 10 counts in the indictment (including one on which the respondent was acquitted), his Honour said the aggravating factors in relation to the offending were the victim's age, her relationship to the respondent, the victim's vulnerability, the respondent's significant breach of trust and the period of time over which the offences were committed.
20 The trial judge noted that he had received a psychological report and a pre-sentence report.
21 His Honour referred to the respondent's personal circumstances and antecedents. At the time of the offending he was aged between 32 and 33. He had significant health difficulties at a very young age. He was disadvantaged by his upbringing. His Honour's impression was that the respondent is emotionally immature and has limited self-awareness. He has been engaged in rudimentary employment. He has two previous convictions for sex offending against a child.
22 The trial judge then imposed the individual sentences of imprisonment and the total effective sentence. The individual sentences his Honour imposed included, erroneously, a concurrent sentence for a count on which the respondent was acquitted. On 22 April 2014, his Honour recalled the orders and corrected the error.
The previous convictions for sex offending against a child
23 In 2001 the respondent was convicted of indecent dealing with a child under the age of 13 and indecently recording a child under the age of 13. These offences were committed against his niece (his sister's daughter). The victim was aged 4. The offending involved the respondent taking a photograph of the victim's vagina, which he kept in his wallet, and removing the victim's underwear and touching her vagina. When the offending occurred the respondent was living with his sister. A total effective sentence of 18 months' immediate imprisonment was imposed.
The psychological report and the pre-sentence report
24 The information before the trial judge included a psychological report dated 7 April 2014 prepared by Ms Jane Sampson, a clinical and forensic psychologist, and a pre-sentence report dated 7 April 2014.
25 Ms Sampson set out in detail the respondent's personal circumstances and antecedents.
26 The respondent denied having any problems with drugs or alcohol. He described himself as a moderate social drinker. He said he had never been diagnosed with or treated for any mental illness.
27 The respondent denied having committed any of the nine offences in question. His only explanation was that 'my ex is trying to use something against me to keep me away from my daughter'. He said he believed the victim had been manipulated, for that purpose, by her mother. He minimised his responsibility for the 2001 offences by stating that he was 'drunk at the time'.
28 Ms Sampson said in her report that the respondent's 'stance of denial' made it difficult to assess what had driven the offending. She added, however, that the explanation appeared to be 'deviant sexual arousal, sexual gratification, opportunity and access to a vulnerable minor'. She noted that it had been impossible to ascertain whether the offending had involved any physical coercion, but she was of the view that psychological coercion had been present in the respondent's 'misuse of [the] trusted position of de facto stepfather'.
29 According to Ms Sampson, there is a major concern, in the 'psychological adjustment realm', with the respondent's denial of responsibility for his offending. It was therefore impossible to explore his attitudes and beliefs in relation to sexual victimisation. Also, it was difficult, as a consequence of his denial, to assess any escalation in his sexual offending behaviour, but the current offending had 'moved through indecent dealings, digital, then oral to penile penetration'. There was no apparent personality disorder and there was no evidence of any violent or suicidal ideation.
30 Ms Sampson said the respondent's defensiveness, when interviewed, made it 'more challenging' confidently to assess the risk of his reoffending. She noted that the 'actuarial tool on currently available information' suggests he is at a low-moderate risk of similar reoffending, but Ms Sampson was of the view that this 'under-represents his risk to children'.
The merits of the ground of appeal
31 The first limb of the totality principle requires that the total effective sentence imposed on an offender who has committed multiple offences must bear a proper relationship to the overall criminality involved in all of the offences (including those, if any, in respect of which the offender is still serving or is yet to serve a term of imprisonment), viewed in their entirety, having regard to all relevant facts and circumstances including those referable to the offender personally (and including, for example, the desirability of accommodating any wish to rehabilitate), all relevant sentencing factors and the total effective sentences imposed in comparable cases.
32 The maximum penalty for the offence of sexually penetrating a child who the offender knows is his or her de facto child, where the child is under the age of 16 years, is 20 years' imprisonment. See s 329(2) read with s 329(9)(a) of the Code. The respondent was convicted of seven of these offences.
33 The maximum penalty for the offence of indecently dealing with a child who the offender knows is his or her de facto child, where the child is under the age of 16 years, is 10 years' imprisonment. See s 329(4) read with s 329(10)(a) of the Code. The respondent was convicted of two of these offences.
34 The primary sentencing considerations for offences of the kind committed by the respondent are appropriate punishment of the offender and personal and general deterrence, having regard to the need to protect vulnerable children. See Woods v The Queen (1994) 14 WAR 341, 345 - 346 (Anderson J, Malcolm CJ & Seaman J agreeing); PP v The State of Western Australia [2004] WASCA 144 [14] (McLure J, Malcolm CJ & Murray J agreeing); M v The State of Western Australia [2006] WASCA 256 [30] (Wheeler JA, Steytler P & McLure JA agreeing).
35 It is well-established that in cases of intra-familial sexual abuse, matters personal to the offender are of less mitigatory weight than might otherwise be the case. The fact that an offender is otherwise of good character has only little weight because the offences are of a kind that, until revealed, generally do not impact on other people or upon their perception of the offender. See MPD v The State of Western Australia [2008] WASCA 57 [58] (Miller JA, Wheeler & Buss JJA agreeing).
36 The guidance afforded by comparable cases is flexible rather than rigid. The mere fact a sentence is within the range of other sentences imposed for similar offending does not necessarily establish that there was an appropriate exercise of the sentencing discretion in the particular case. Similarly, the mere fact a sentence is outside the range does not necessarily establish that the exercise of the sentencing discretion in the particular case miscarried.
37 A sentencing range for comparable offences is merely one of the factors to be taken into account in deciding whether an individual sentence is manifestly inadequate or a total effective sentence infringes the first limb of the totality principle. A range of sentences customarily imposed is of significance for the purpose of ensuring broad consistency in the sentencing of offenders in broadly comparable cases. However, a sentencing range for comparable cases does not fix the range of a sound exercise of the sentencing discretion in a particular case.
38 When this court dismisses an appeal against sentence, and when it allows an appeal against sentence and resentences the offender, this court's decision on the sentencing outcome does not, of itself, fix the upper or lower limit of the range.
39 There is no 'tariff' for offences of the kind committed by the respondent (or for sex offences generally) because of the great variation that is possible in the circumstances of the offending and the offenders. The sentence to be imposed in a particular case depends on its individual facts and circumstances, having regard to the maximum penalty and all relevant sentencing factors. See The State of Western Australia v Akizuki [2008] WASCA 267; (2008) 192 A Crim R 373 [3], [67] - [69] (Steytler P); Juma v The State of Western Australia [2011] WASCA 54 [37] - [38] (McLure P, Newnes JA & Mazza J).
40 The discretion conferred on sentencing judges is, of course, of fundamental importance and this court may not substitute its opinion as to sentencing for that of the sentencing judge merely because it would have exercised the discretion in a different manner. See Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665 [15] (Gleeson CJ, Gaudron, McHugh, Gummow, Kirby, Hayne & Callinan JJ).
41 I have read and considered a number of cases involving appeals against sentence for child sex offences. In particular, I have reviewed the facts and circumstances, and the sentencing dispositions, in Rogers v The Queen [2004] WASCA 147; Truscott v The State of Western Australia [2007] WASCA 62; GMS v The State of Western Australia [2009] WASCA 107; Rowan v The State of Western Australia [2009] WASCA 185; The State of Western Australia v Prince [2011] WASCA 22; RFS v The State of Western Australia [2012] WASCA 58; CJF v The State of Western Australia [2012] WASCA 69; The State of Western Australia v FJG [2012] WASCA 206; Downie v The State of Western Australia [2013] WASCA 244; ARK v The State of Western Australia [2014] WASCA 45; LFG v The State of Western Australia [2015] WASCA 88; and the cases referred to in those decisions. I have also considered the facts and circumstances, and the sentencing dispositions, in other cases cited by counsel for the respondent and counsel for the State.
42 It is unnecessary to reproduce the relevant facts and circumstances or the sentences imposed in the previous cases. There are some comparable features between some of those cases, on the one hand, and the present case, on the other, but there are also distinguishing features.
43 In the present case, the respondent's offending was very serious. His offending was not momentary or impulsive. It was sustained and repetitive. There was a marked disparity between the age of the victim (7 - 8 years) and the age of the respondent (32 - 33 years) at the time of the offending. The respondent engaged in some deliberate grooming of the victim to facilitate his abuse of her for his sexual gratification. He subjected the victim to various forms of sexual penetration. There is no mitigation in the fact that the respondent's penetration of her anus and vagina may have been 'partial'. When the victim was examined by a medical practitioner no injuries to her genitals were found. However, there is no doubt that the sexual abuse caused her physical pain. The victim's mother gave evidence at trial to the effect that the victim had complained to her repeatedly, at the time of the offending, about pain in her anal region. The emotional consequences for the victim were damaging. She has experienced nightmares, anxiety and sadness. Counts 1, 2, 3 and 9 were committed while the victim was sleeping in her own bed. She was especially vulnerable and defenceless.
44 It is apparent from my examination of previous cases involving appeals against sentence for child sex offences that the total effective sentence of 6 years 6 months' imprisonment, imposed by the trial judge in the present case, is significantly more lenient than the pattern of sentencing in prior cases with at least some features comparable to the respondent's offending. Nevertheless, as I have mentioned, each case turns on its own particular facts and circumstances. Sentencing patterns can provide only general guidance.
45 There was little by way of mitigation.
46 The respondent was not youthful or inexperienced for sentencing purposes.
47 The respondent did not have the mitigation of being otherwise of good character. As I have mentioned, he had previous convictions for sex offences against a child. Although the prior offending and imprisonment did not aggravate the current offending, it underscored the importance of personal deterrence as a sentencing factor.
48 The respondent was, of course, entitled to proceed to trial. However, he was unable to claim the mitigation that pleas of guilty would have brought.
49 The respondent's continuing denial of the current offending, as well as his minimisation of his responsibility for the 2001 offending, gives rise to considerable concern. His stance is an impediment to his rehabilitation. He has not explained, and has refused to accept responsibility for, his criminal conduct. In the circumstances, the risk that he may reoffend in a similar manner was an important sentencing factor.
50 The respondent has shown no remorse or victim empathy.
51 In my opinion, the total effective sentence of 6 years 6 months' imprisonment was not commensurate with the overall seriousness of the offending. I am satisfied that the total effective sentence did not bear a proper relationship to the criminality involved in all of the offences, viewed together, and having regard to all relevant facts and circumstances and all relevant sentencing factors, including the seriousness of the offending as a whole, the pattern of sentencing in reasonably comparable cases and the limited mitigation. The proper exercise of the sentencing discretion required greater accumulation of the individual sentences in order to mark the very serious nature of the respondent's overall offending and to reflect the primary sentencing considerations of appropriate punishment and personal and general deterrence, having regard to the need to protect vulnerable children. Error by his Honour should be implied or inferred, based on the first limb of the totality principle, from the sentencing outcome.
52 The ground of appeal has been made out.
The result of the appeal and the resentencing of the respondent
53 I would allow the appeal.
54 Counsel for the respondent did not submit that the discretion under s 31(4) of the Criminal Appeals Act 2004 (WA) should be exercised. There is no basis, in my opinion, for invoking the discretion. The trial judge imposed a sentence that was substantially less than the sentence open on a proper exercise of the sentencing discretion. Appealable error has been very clearly established. This court's intervention is necessary to ensure the preservation of proper sentencing standards for the serious offences created by s 329(2) and s 329(4) of the Code.
55 This court has the material necessary to resentence the respondent.
56 The individual sentences imposed by his Honour should not be disturbed. However, his Honour's orders for concurrency and cumulacy must be set aside.
57 After taking into account the maximum penalties, the facts and circumstances of the offences and all other relevant sentencing factors (including the limited mitigation), I would impose a total effective sentence of 9 years' imprisonment. The individual sentences for count 1 (2 years), count 6 (18 months) and count 7 (18 months) should be served cumulatively on each other and cumulatively on the sentence for count 9 (4 years). The individual sentences for counts 2, 3, 4, 8 and 11 should be served concurrently with each other and concurrently with the individual sentence for count 9.
58 The new total effective sentence of 9 years' imprisonment should be taken to have taken effect on 8 March 2013. The respondent remains eligible for parole. He will be eligible to be considered for release on parole when he has served 7 years calculated from 8 March 2013.
59 MAZZA JA: I agree with Buss JA.
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