The State of Western Australia v Shephard
[2018] WASCA 140
•10 AUGUST 2018
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: THE STATE OF WESTERN AUSTRALIA -v- SHEPHARD [2018] WASCA 140
CORAM: BUSS P
MAZZA JA
BEECH JA
HEARD: 23 JULY 2018
DELIVERED : 27 JULY 2018
PUBLISHED : 10 AUGUST 2018
FILE NO/S: CACR 105 of 2018
BETWEEN: THE STATE OF WESTERN AUSTRALIA
Appellant
AND
NEAL MICHAEL SHEPHARD
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram: BRADDOCK DCJ
File Number : IND 1211 of 2017
Catchwords:
Criminal law and sentencing - Offences of indecently dealing with a child under the age of 13 - Whether sentences of 8 months' imprisonment conditionally suspended for 18 months manifestly inadequate as to type
Legislation:
Criminal Code (WA), s 320(4)
Result:
Appeal allowed
Primary judge's sentencing decision set aside
Respondent resentenced to 16 months' immediate imprisonment
Category: D
Representation:
Counsel:
| Appellant | : | Ms A S Forrester SC |
| Respondent | : | Mr M R Gunning |
Solicitors:
| Appellant | : | Director of Public Prosecutions (WA) |
| Respondent | : | Gunning Young |
Case(s) referred to:
BGR v The State of Western Australia [2014] WASCA 82
Cartwright v The State of Western Australia [2010] WASCA 4
CMB v Attorney‑General for New South Wales [2015] HCA 9; (2015) 256 CLR 346
Collins v The State of Western Australia [2007] WASCA 108
Cross v The State of Western Australia [2018] WASCA 86
GJT v The State of Western Australia [2011] WASCA 263; (2011) 214 A Crim R 272
JD v The State of Western Australia [2008] WASCA 147
REASONS OF THE COURT:
Introduction
The State appeals against the conditional suspension of terms of imprisonment imposed on the respondent following his conviction of five counts of indecent dealing with a child under the age of 13.
The respondent was tried on an indictment containing 10 counts. Following trial before a jury, the respondent was convicted of counts 6, 8, 9 and 10. The jury were hung as to the other counts. Subsequently, the respondent pleaded guilty to count 3, with the State discontinuing the remaining counts.
The respondent was convicted of the following offences for which the penalties set out in the table below were imposed.
Count & Child
Offence details
Maximum penalty
Penalty imposed
(3)
BA
Indecent dealing - s 320(4)
10 years' imprisonment
8 months (head sentence)
(6)
JA
Indecent dealing - s 320(4)
10 years' imprisonment
8 months (cumulative)
(8)
VL
Indecent dealing - s 320(4)
10 years' imprisonment
8 months (concurrent)
(9)
VL
Indecent dealing - s 320(4)
10 years' imprisonment
8 months (concurrent)
(10)
VL
Indecent dealing - s 320(4)
10 years' imprisonment
8 months (concurrent)
TES:
16 months' imprisonment conditionally suspended for 18 months
Counts 3 and 6 occurred between 1 November 2015 and 9 June 2016; count 8 between 1 March 2015 and 30 November 2015; count 9 on 11 October 2015; and count 10 on 1 May 2016.
The State contends that the decision to suspend the terms of imprisonment reveals implied error.
On 27 July 2018, we upheld the appeal and resentenced the respondent to a total effective sentence of 16 months' immediate imprisonment. We stated that we would publish our reasons later. These are our reasons.
The facts
There were three victims of the respondent's offending. We will refer to them by the initials BA, JA and VL. The three girls were part of a family arising from the relationship between BA and JA's mother and the father of VL.
The respondent was a family friend of the victims' parents.[1] He frequently visited the family house and spent a lot of time with the family, including the children.[2]
[1] ts 294.
[2] ts 295.
The facts of count 3, to which the respondent pleaded guilty, were as follows. At a time when BA was about 8 years old, the respondent attended a family meal with BA's family at a café. After the meal, BA rode in the respondent's car on the way back to the family home. While the respondent was driving, he reached over to BA with his left hand. He rubbed her thigh and then moved his hand further up, inside her pants, touching her briefly on the vaginal area.[3]
[3] ts 295.
Count 6 related to the child JA. She was aged between 6 and 7 years at the time of the offence. The jury convicted the respondent of count 6 as an alternative to a count of sexual penetration. The judge found the facts to be as follows.
The respondent had been at a family event at a park with the family. When the respondent got to the children's front door, he picked JA up and put his hand through her clothing, touching her in the vaginal area.[4] This was also a very brief incident, as other people were also returning to the house.[5]
[4] ts 295.
[5] ts 295.
Counts 8, 9 and 10 related to the child VL.
Count 8 occurred when VL was 6 years old. During an engagement party at the children's home, VL was playing on exercise bars in the backyard. The respondent grabbed VL and placed her so that she was sitting on his knee. While VL was sitting there, the respondent pinched her shoulder, touched her in her vaginal area over her underwear, and touched her breast area. VL elbowed the respondent away and he then left her alone.[6]
[6] ts 295.
Count 9 also occurred while VL was about 6 years of age. While at her father's house, the respondent touched her on her vagina and 'sort of scratched her [there]… "like a cat"'.[7]
[7] ts 296.
Count 10 occurred when VL was 7 years old. It took place during a birthday party for BA. In the course of playing games with the children, including VL, the respondent put her on his knee.[8] While she was sitting there, the respondent pinched her on various parts of her body, including her vaginal area. She said, 'Ouch, that hurt me.' However, the respondent continued doing it.[9]
[8] ts 296.
[9] ts 296.
The respondent's personal circumstances
The respondent was the younger of two children. His family moved from the UK to Australia when the respondent was about 6 years old. A year or two after that, his parents separated and he and his brother lived with their mother.[10] The respondent's parents reconciled when he was about 12.[11] The respondent faced both social and academic challenges in the course of his schooling. For example, he experienced some bullying.[12]
[10] ts 298.
[11] Report of Dr Lynn [3].
[12] ts 298; Report of Dr Hall [9].
The respondent left school having completed year 10, but not year 11.[13]
[13] Report of Dr Lynn [4]; Report of Dr Hall [10].
The respondent has had regular employment since he was aged about 17.[14] By the time of sentencing, he had been in employment with the same employer as a salesperson for about five years, enjoying strong support from that employer.[15]
[14] Report of Dr Lynn [4].
[15] ts 298; Report of Dr Lynn [4]; Report of Dr Hall [10].
There were a number of reports before the sentencing judge, including a psychiatric report, a psychological report and two pre‑sentence reports.
The respondent continued to deny his guilt of the offences relating to JA and VL in his communications with the authors of the psychiatric, psychological and pre‑sentence reports.[16] He told Dr Hall, the author of the psychiatric report, that he had been wrongly convicted and that he was 'careful never to touch them'.[17]
[16] Report of Dr Hall [14], [19]; report of Ms Henshall dated 11 May 2018, p 2; report of Ms Lynn [12]; report of Ms Henshell dated 2 March 2018, p 2;
[17] Report of Dr Hall [14], [19].
Dr Hall's report included the following:
(1)the respondent has a long history of anxiety and feeling easily overwhelmed;[18]
(2)the respondent has never been formally diagnosed with any anxiety disorder or other mental illness and has not received any psychiatric treatment;[19]
(3)the respondent suffers from an adjustment disorder with anxiety and depressed mood;[20]
(4)there was no evidence to indicate that the respondent suffers from a serious or medically treatable mental illness, but has a long history of chronic anxiety associated with low self‑esteem, a fear of rejection and avoidant behaviour;[21] and
(5)the respondent appears to be of below average intellectual functioning with limited adaptive capacity.[22]
Dr Hall concluded, and the sentencing judge accepted, that the respondent was of low to moderate risk of reoffending.[23]
[18] ts 298; report of Dr Hall [5].
[19] ts 299; report of Dr Hall [5].
[20] ts 298; report of Dr Hall [22].
[21] ts 299; report of Dr Hall [23].
[22] ts 299; report of Dr Hall [23].
[23] ts 298; report of Dr Hall [27].
Dr Hall expressed the view that the respondent would be more vulnerable and would experience a greater burden from imprisonment than others who do not suffer from his anxiety and social difficulties. Further, the respondent is a vulnerable individual likely to be bullied and exploited in the complex social environment of a prison.[24]
[24] ts 299; report of Dr Hall [29].
Sentencing remarks
Evaluation of the seriousness of the respondent's offending
The sentencing judge observed that the respondent's offences were serious in that they involved three very young children aged between 6 and 9 years old.[25] The respondent took an opportunity to touch the children in a way that was indecent, utterly inappropriate and risky because, in respect of most offences, there were other people in the vicinity.[26] The respondent took advantage of his position as a family friend and trusted person.[27] Viewed as a whole, the respondent's offending demonstrated a pattern of behaviour in which he took opportunities, when they arose, to offend against the children.[28]
[25] ts 296.
[26] ts 296.
[27] ts 296.
[28] ts 296.
The judge recognised that the respondent did not place the children under pressure or attempt to get them to cover up for him or tell lies, and did not bribe or threaten them to remain silent.[29]
[29] ts 296 ‑ 297.
The judge observed that while it was to be hoped that the children would not suffer unduly from what had occurred, the respondent's offences were a gross affront to the physical integrity of the little girls.[30]
[30] ts 297.
In determining the appropriate penalty, the judge considered it was important to bear in mind that offending of this kind can be committed in a secretive way that is difficult to detect. Consequently, others must be deterred from behaving in the manner in which the respondent behaved.[31]
[31] ts 297.
The judge recognised that the respondent's offending was by no means the most serious offending of its kind.[32]
Mitigating factors
[32] ts 297.
The judge outlined the respondent's personal circumstances. Her Honour referred to the respondent's prior good character and his prospects of rehabilitation to the extent that he was living a prosocial lifestyle and had indicated a willingness to cooperate. Her Honour observed that there was little else that mitigated the offending.[33]
Sentencing disposition
[33] ts 299.
The judge found that the only appropriate disposition was one of imprisonment.[34]
[34] ts 299.
Her Honour described the question of whether the term of imprisonment should be suspended as 'very finely balanced'.[35] In that respect, her Honour observed that the respondent's repetitive offending was of great concern. Her Honour balanced that against the fact that the offending was opportunistic and did not involve any grooming or exploitation of the children in an ongoing manner. Further, the offending did not involve anything other than very brief touching.[36]
[35] ts 300.
[36] ts 300.
The judge concluded that, 'by a very close decision', the term of imprisonment should be suspended. Her Honour's reasons for that conclusion were the respondent's absence of any previous offending of a similar kind, strong support, and willingness to undergo counselling.[37] Her Honour also referred to the respondent's plea of guilty in relation to count 3, observing that the respondent could not be said to have exhibited a great deal of remorse, given that he went to trial on the other counts.[38] Nevertheless, her Honour found that 'there may be a prospect that [the respondent] may come to understand [his] behaviour in the future'.[39]
[37] ts 300.
[38] ts 300.
[39] ts 300.
After passing sentence, her Honour added that the other reason she made the order for suspension was that she considered, in the long term, that it provided a benefit to the community and greater potential for protection of the community.[40]
[40] ts 302.
Ground of appeal
The State appeals on the single ground that the decision to suspend the terms of imprisonment reveals implied error. In other words, the State contends that the sentence for each offence was manifestly inadequate in kind.
The State does not challenge the length of the sentences imposed, although it observes that the individual sentences can fairly be described as 'somewhat lenient'.[41]
[41] Appellant's submissions [19]; appeal ts 2.
The parties' submissions
The State submits that, when proper weight was given to the following, it was not open to the sentencing judge to suspend the term of imprisonment:
(1)the maximum penalty for the respondent's offences;
(2)the serious features of the offending, in particular its repetitive nature, the youth of the multiple victims and the abuse of trust involved;
(3)the need to give primacy to general and personal deterrence;
(4)the respondent's plea of not guilty on most offences; and
(5)the respondent's absence of remorse.[42]
[42] Appellant's submissions [22], [23], [30] - [33], [35], [47], [61] - [63]; appeal ts 2 - 4.
The respondent submits that the circumstances of the case can fairly be described as 'unique'.[43] The respondent submits that his offending was towards the lower end of the scale of seriousness of offences of indecent dealing, given that:
(1) it was opportunistic and brief in duration;
(2) there was no grooming, pressure or attempt to bribe or threaten the children to stay silent; and
(3) the offences occurred when the children were clothed, and through underwear.[44]
[43] Respondent's submissions [35]; appeal ts 4, 6.
[44] Respondent's submissions [35]; appeal ts 6 - 7.
The respondent highlights the following mitigating factors:
(1)the respondent's low to moderate risk of reoffending;
(2)the absence of any relevant record;
(3)his low average intellectual functioning;
(4)his adjustment disorder, anxiety and depressed mood;
(5)his willingness to undergo counselling;
(6)his vulnerability to being bullied and exploited in a prison environment;
(7)his full‑time employment and the support of his employer; and
(8)the strong support of his family.[45]
[45] Respondent's submissions [35]; appeal ts 8 - 9.
Appeals against sentence - general principles
The following general principles are well established.
(1)Sentencing is a discretionary exercise. An appellate court can intervene only if the appellant demonstrates either an express or implied material error. Express error involves acting on a wrong principle, for example by mistaking the law or facts or taking into account an irrelevant matter. Implied error arises where the end result is so unreasonable or unjust that the court must conclude that a substantial wrong has occurred. Thus, an appellate court cannot substitute its own opinion for that of the sentencing court merely because the appellate court would have exercised a sentencing discretion differently.
(2)When considering the sentencing standards that are usually observed in relation to offences of the kind committed by the offender, it is necessary to have regard to a range of comparable cases. Nevertheless, each case turns on its own particular facts and circumstances. Sentencing ranges can provide only general guidance. The limits of the guidance afforded by comparable cases are flexible rather than rigid. The mere fact that a sentence is within the range of other sentences imposed for similar offences does not necessarily establish that there was an appropriate exercise of the sentencing discretion in the particular case. Similarly, the mere fact that a sentence is outside that range does not necessarily establish that the exercise of the sentencing discretion in the particular case miscarried.
(3)When this court dismisses an appeal against sentence and when it resentences on a successful appeal, its decision does not fix the upper or lower limit of the range.
Suspended or immediate imprisonment - general principles
The principles relevant to the decision whether to impose a term of immediate imprisonment, or whether to suspend the term, are outlined in Cross v The State of Western Australia,[46] as follows:
A court must not impose a term of immediate imprisonment unless satisfied, having regard to the sentencing principles in div 1 of pt 2 of the Sentencing Act 1995 (WA), that it is not appropriate to impose suspended imprisonment. In other words, a court is not permitted to impose a term of immediate imprisonment unless that is the only appropriate sentencing option.
In determining whether or not to exercise the power to suspend a term of imprisonment, the court must look again at all matters relevant to the circumstances of the offence and the personal circumstances of the offender.
The discretion to suspend or conditionally suspend a term of imprisonment is not confined by considerations relating to rehabilitation. The objective features of an offence may, in a particular case, outweigh the personal considerations of rehabilitation. Even if a term of imprisonment is generally the appropriate penalty, the sentencing judge must determine the appropriate penalty for the particular case, having regard to all relevant sentencing factors.
In Fogg v The State of Western Australia, McLure P explained the approach to an appeal against the refusal to suspend a term of imprisonment on the ground of implied error. A court must not order immediate imprisonment unless positively satisfied that suspension of the term of imprisonment is not appropriate. Whether suspension is appropriate involves a discretionary value judgment which, by its nature, gives some latitude to the decision‑maker. In borderline cases, different types of sentence may be reasonably open. In such cases, the decision to decline to suspend the term of imprisonment would not be unreasonable or unjust, and would reveal no implied error. (citations omitted)
[46] Cross v The State of Western Australia [2018] WASCA 86 [33] ‑ [36].
So, in a borderline case in which suspended and immediate imprisonment were reasonably open, a decision to suspend would not reveal implied error.
Thus, in this case it is for the State to demonstrate that the primary court's judgment, that suspension was appropriate, was a conclusion that was not reasonably open.
Disposition
The primary sentencing considerations for sexual offending against children are punishment of the offender, specific and general deterrence and the protection of vulnerable children. Matters personal to the offender are of less mitigatory weight than might otherwise be the case.[47] There is no tariff for sexual offences against children, including, specifically, for indecent dealing with a child.[48] Ordinarily, as the respondent accepts,[49] a sentence of immediate imprisonment is imposed for sexual offending against children.[50] However, that fact does not relieve a sentencing judge of the obligation to assess whether, having regard to all the facts and circumstances and all the sentencing factors in the particular case, it is appropriate to suspend the term of imprisonment.[51]
[47] GJT v The State of Western Australia [2011] WASCA 263; (2011) 214 A Crim R 272 [72]; BGR v The State of Western Australia [2014] WASCA 82 [45], [101].
[48] See, for example, GJT [74].
[49] Respondent's submissions [28].
[50] GJT [5]; BGR [45].
[51] Collins v The State of Western Australia [2007] WASCA 108 [21]; Cartwright v The State of Western Australia [2010] WASCA 4 [10]; Cross [51].
Non‑custodial sentences are not extraordinary for a single incident of indecent dealing with a child, particularly those cases involving the touching of the breasts of a young girl.[52] When custodial sentences have been imposed, they have ranged from 9 months to 18 months (pre‑transitional), with sentences at the higher end of the range involving the fondling of the girl's genitalia.[53]
[52] JD v The State of Western Australia [2008] WASCA 147 [18]; GJT [77].
[53] JD [18]; GJT [77].
In GJT v The State of Western Australia, Buss JA analysed a large number of sentencing cases involving offences of indecent dealing with a child, including cases where more than one offence was committed.[54] We adopt that analysis, without repeating it.
[54] GJT [85] - [119].
There are cases in which suspended imprisonment has been imposed for non‑penetrative sexual offending against children. However, each involved unusual and exceptional combinations of mitigating factors which justified the suspension of the terms of imprisonment. For the reasons explained below in [50], the same cannot be said in the present appeal.
In JD v The State of Western Australia, this court upheld an appeal by the offender against a term of 10 months' immediate imprisonment imposed for one count of indecent dealing with his stepchild. The court suspended the term for 2 years. The court outlined the exceptional and 'overwhelming' mitigatory factors as follows:[55]
This is an exceptional case because of the overwhelming list of mitigatory factors. This was a single incident carried out by a person under the influence of alcohol, who immediately realised the seriousness of what he had done and then in the immediate aftermath, contemplated committing suicide, made admissions to the victim's mother the next morning, went to the police the next day and made full admissions to them. The offence did not involve any threat, coercion or violence. There was no pre planning or premeditation; the victim was fully clothed when the offence occurred; the offending behaviour was of a short duration; when the victim indicated discomfort the appellant immediately desisted; the appellant entered a plea of guilty to the offence of which he was convicted at the earliest possible opportunity; as an indication of his remorse he spent 101 days in custody before applying for bail; he then enrolled in and committed himself to the conditions of a SafeCare programme; he revealed himself as highly motivated to understand the origins of his offending behaviour and to ensure that it did not reoccur; he continued to express his deep remorse; he accepted full responsibility for the offence; he had no criminal record; he was in full time employment when sentenced and as a result of the offence, he lost his business, his house, his marriage and lost contact with the victim and the children of the marriage.
[55] JD [16].
In GJT, the offender successfully appealed against a total effective sentence of 2 years 4 months' immediate imprisonment imposed in relation to four offences of indecent dealing with his de facto child. By majority, this court found that there was an 'unusual combination of sentencing factors' which required a departure from the ordinary rule that immediate imprisonment is imposed for sexual offending against children.[56] Those circumstances included the following:[57]
(1)The offences were at the very low level of offending.
(2)The offender made fast‑track pleas of guilty, had no relevant prior convictions, was otherwise of good character and was remorseful.
(3)The offender admitted his guilt to his wife, who was the complainant's mother, shortly after committing the offences.
(4)The offender attended counselling with a psychologist for a period of four years. The court‑ordered psychological report found that the offender demonstrated insight. In the lengthy intervening period between the commission of the offences and sentencing, the offender had substantially rehabilitated himself.
[56] GJT [5].
[57] GJT [6] - [7], [11] (McLure P; Mazza J agreeing).
In BGR v The State of Western Australia, the offender committed offences that were undoubtedly more serious than those committed by the respondent in this case. By majority, this court ordered the suspension of the sentences of imprisonment imposed because of the 'very unusual combination of mitigating factors'. McLure P outlined the position as follows:[58]
There is a very unusual combination of mitigating factors in this case, in both nature and extent. The appellant: (1) made fast-track pleas of guilty; (2) stopped offending prior to the complainant's first disclosure of his conduct; (3) had no relevant prior or post offending convictions; (4) admitted to offending against the complainant shortly after she first disclosed his conduct to her mother; (5) informed his family and his Church of his offending; (6) undertook an intensive two year SafeCare sex offender treatment programme; (7) ceased consuming alcohol and remained abstinent in the lengthy period before being charged at a relatively advanced age; (8) demonstrated remorse, shame, insight and accepted responsibility for his offending; (9) is a changed man and at low risk of reoffending; (10) regained the support of his wife and his Church; and (11) some 10 years after the offending when the complainant complained to police, made full admissions and voluntarily disclosed details of the offending which went well beyond what the complainant was able to remember.
[58] BGR [48] (Pullin JA agreeing).
The majority decision in BGR is fairly characterised in the State's submissions as 'merciful'. It is of limited utility as a comparator for this and other cases.
Turning to the present case, we accept that, viewed individually, each of the respondent's offences was by no means at or towards the higher end of the scale of the seriousness of offences under s 320(4). Many of the respondent's offences were brief in duration. Viewed in isolation, each could fairly be viewed as opportunistic and without premeditation. However, when the respondent's offending is, as it must be, looked at as a whole, it is not without serious elements. The respondent committed five offences, involving three different victims. His victims were very young, being aged between 6 and 9 years old. The respondent touched the genitals of these young girls, under their clothing, through their underwear. The respondent took advantage of his position as a family friend and trusted person to commit these offences. It was because he was a family friend that he was allowed to drive one of the girls home, and to put one of the girls on his knee. The number of victims, the number of offences committed and the period of the offending puts the characterisation of his offending as opportunistic into a different light. Moreover, the number of offences, in itself, reveals a degree of persistence. Further, the respondent's offending against VL, in particular, exhibited persistence. Even when VL complained that the respondent was hurting her, he continued committing count 10.
There were very limited mitigating factors in this case. The respondent is not youthful. The respondent pleaded not guilty to counts 6, 8, 9 and 10. While that does not aggravate his sentence, the respondent did not have the mitigating benefit of a plea of guilty. Moreover, the respondent continues to deny his guilt in relation to these offences; thus, he does not have the mitigatory benefit of acceptance of responsibility and remorse. We have taken account of the mitigating factors set out in [36] above. Such matters personal to the respondent are of less mitigatory weight than might otherwise be the case, given the principles we have outlined in [41] above.
The sentencing judge found, with respect correctly, that it could not be said that the respondent had exhibited a great deal of remorse.[59] However, her Honour went on to observe that 'there may be a prospect that [the respondent] may come to understand [his] behaviour in the future'.[60] In our respectful opinion, in the circumstances of this case, the mere prospect of future rehabilitation, as distinct from demonstrated steps to rehabilitation, could not reasonably justify the suspension of the respondent's sentences of imprisonment.
[59] ts 300.
[60] ts 300.
In our view, in all the circumstances of this case, the primary sentencing considerations of punishment, general and specific deterrence, and protection of children could only be satisfied by the imposition of a term of immediate imprisonment. The matters of mitigation in favour of the respondent were appropriately and fully recognised in the length of the sentences. In our respectful opinion, it was not open to the sentencing judge to conclude that the suspension of the terms of imprisonment was appropriate.
For these reasons, implied error has been demonstrated.
Under s 31(4)(a) of the Criminal Appeals Act 2004 (WA), this court has a residual discretion not to allow an appeal by the prosecutor under s 24(1) even if, in its opinion, a different sentence should have been imposed. Counsel for the respondent did not submit that this discretion should be exercised. Of course, the respondent does not bear an onus to establish that the residual discretion should be exercised in its 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.[61]
[61] CMB v Attorney‑General for New South Wales [2015] HCA 9; (2015) 256 CLR 346 [33] ‑ [34], [66].
In our opinion, there is no basis in the present case for invoking the discretion. The sentences imposed by the sentencing judge were of a kind not open on a proper exercise of the sentencing discretion. This court's intervention is necessary to ensure the preservation of proper sentencing standards.
Consequently, we concluded that the appeal must be upheld and the respondent resentenced.
Resentence
As we have said at [33] above, the State did not challenge the length of the terms of imprisonment imposed by the sentencing judge. While the sentences of 8 months' imprisonment may be seen as toward the lower end of the range as regards counts 9 and 10, we would impose sentences of 8 months' immediate imprisonment in relation to each offence, subject to one qualification. The qualification relates to count 3, in respect of which the respondent pleaded guilty. We would discount the 'head sentence' we would otherwise have imposed in relation to count 3 by 10% pursuant to s 9AA of the Sentencing Act 1995 (WA). The sentence for count 3 is 7 months' immediate imprisonment.
In our view, it is appropriate that the sentences for counts 6 and 8 be served cumulatively, so as to produce a total effective sentence of 16 months' immediate imprisonment.
Conclusion
For the reasons we have given, on 27 July 2018, we made the following orders:
(1)The appeal be allowed.
(2)The sentencing decision of Braddock DCJ is set aside.
(3)The respondent is resentenced in respect of counts 3, 6, 8, 9 and 10 in indictment IND 1211 of 2017 as follows:
(a)count 3: 7 months' immediate imprisonment;
(b)count 6: 8 months' immediate imprisonment;
(c)count 8: 8 months' immediate imprisonment;
(d)count 9: 8 months' immediate imprisonment; and
(e)count 10: 8 months' immediate imprisonment.
(4)The new individual sentence for count 8 is to be served cumulatively upon the new individual sentence for count 6. The other new individual sentences are to be served concurrently with each other and concurrently with the new individual sentence for count 6. The new total effective sentence is therefore 16 months' immediate imprisonment.
(5)The new individual sentence for counts 3, 6, 9 and 10 and the new total effective sentence are to commence on the date on which the respondent is taken into custody for the offences.
(6)The respondent is eligible for parole.
The respondent will be eligible for release on parole when he has served one half of the new total effective sentence of 16 months' immediate imprisonment.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
LW
RESEARCH ASSOCIATE/ORDERLY TO THE HONOURABLE JUSTICE BEECH10 AUGUST 2018
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