The State of Western Australia v Staniforth-Smith - [2014] WASCA 170

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE COURT OF APPEAL (WA)

CITATION: THE STATE OF WESTERN AUSTRALIA -v- STANIFORTH-SMITH [2014] WASCA 170

CORAM: McLURE P
MAZZA JA
HALL J

HEARD: 12 AUGUST 2014

DELIVERED : 5 SEPTEMBER 2014

FILE NO/S: CACR 1 of 2014

BETWEEN: THE STATE OF WESTERN AUSTRALIA
Appellant
AND
ALISDAIR JOHN STANIFORTH-SMITH
Respondent

ON APPEAL FROM:
Jurisdiction              :  DISTRICT COURT OF WESTERN AUSTRALIA
Coram  :BRADDOCK DCJ
File No  :IND BUN 58 of 2013

Catchwords:

Criminal law - State appeal against sentence - Sexual offences against a child - Whether sentence manifestly inadequate - Voluntary report to police - Admissions - Rehabilitation - Low risk of re-offending - Whether unusual combination of mitigating factors justified sentence imposed

Legislation:

Criminal Code (WA), s 321(4), s 324, s 326

Result:

Appeal dismissed

Category: B

Representation:

Counsel:

Appellant: Mr J McGrath SC
Respondent: Mr S Vandongen SC

Solicitors:

Appellant: Director of Public Prosecutions (WA)
Respondent: David Manera

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

House v The King (1936) 55 CLR 499
KS v The State of Western Australia [2011] WASCA 85
Le v The State of Western Australia [2014] WASCA 120
LJP v The State of Western Australia [2010] WASCA 85
Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665
Munda v The State of Western Australia [2013] HCA 38
Murphy v The State of Western Australia [2013] WASCA 178
RFS v The State of Western Australia [2012] WASCA 58
Schriever v The State of Western Australia [2008] WASCA 133
The State of Western Australia v Akizuki [2008] WASCA 267
The State of Western Australia v Munda [2012] WASCA 164; (2012) 43 WAR 137
The State of Western Australia v Rock [2007] WASCA 121
TJD v The State of Western Australia [2004] WASCA 310

McLURE P: I agree with Hall J.
MAZZA JA: I agree with Hall J, generally for the reasons that he gives, that this State appeal against sentence should be dismissed. I wish to make the following additional comments.
With respect to the sentence imposed on count 3, having regard to the fact the victim was asleep at the time it was committed, the impact that it had on him and the absence of any mitigation for the plea, the sentence of 14 months' imprisonment was very lenient. However, all things considered, it was open to her Honour to impose the sentence that she did. The appellant has not demonstrated that the sentence was unreasonable or plainly unjust. Ground 1 must be dismissed. Given that the success of ground 2 relied upon ground 1, that ground must also be dismissed.
HALL J: This is a State appeal against sentence.
The respondent was convicted after a trial of one count of indecently dealing with a child over the age of 13 years and under 16 years contrary to s 321(4) of the Criminal Code (WA) and one count of aggravated sexual penetration contrary to s 326 of the Code (counts 1 and 3 respectively). Prior to the trial he pleaded guilty to a further count of aggravated indecent assault contrary to s 324 of the Code (count 2). The complainant in each case was the appellant's step‑son who was aged between 15 and 17 years at the time of the offences. In the two counts that alleged a circumstance of aggravation that circumstance was that the respondent was in a family and domestic relationship with the complainant.
On 12 December 2013 the respondent was sentenced to 14 months' imprisonment for the most serious offence, aggravated sexual penetration (count 3), 4 months' imprisonment cumulative for the indecent dealing offence (count 1) and 6 months' imprisonment concurrent for the aggravated indecent assault (count 2). The total effective sentence was 18 months' imprisonment. An order that the respondent be eligible for parole was made.
There are two grounds of appeal. The first ground is that the sentence of 14 months' imprisonment imposed for the aggravated sexual penetration offence was manifestly inadequate. The second ground is that the total effective sentence of 18 months' imprisonment infringed the totality principle in that it failed to reflect the overall criminality of the

offending conduct. It was conceded in argument that the sentences on the indecent dealing and aggravated indecent assault offences could not be impugned and that ground 2 depended upon the success of ground 1.

The facts

The respondent and the complainant's mother married in 1999 and separated in 2003. The complainant's mother had three children at the time the marriage commenced. The complainant, the youngest of these children, was 5 years of age at that time. Though not the biological father of the children the respondent assumed that role until the marriage ended, when the complainant was 8 or 9 years old.
Following the breakdown in the marriage the respondent continued to have contact with all of the children, including a biological son who had been born during the marriage. The respondent continued to live at and operate the family farm. The children, and in particular the complainant, would visit him there.
Sometime in 2010, when the complainant was 15 years old and his mother was overseas, he went to stay with the respondent. During this time the complainant confided to the respondent that he was concerned about the presence of hair on his buttocks. The respondent gave the complainant some hair removal cream and the complainant went to the bathroom to apply it. Despite the complainant stating that he did not wish assistance, the respondent insisted and applied the cream to the complainant's buttocks, anal and genital areas. This incident was the subject of count 1 on the indictment, the charge of indecent dealing.
Though the respondent pleaded not guilty to this charge he did not dispute that the incident had happened. The dispute was whether the incident was indecent. The sentencing judge found that the incident was clearly indecent and that the complainant did not require assistance. However, she concluded that neither the respondent nor the complainant fully understood the import of what had occurred at the time and that the respondent was not fully cognisant of his own sexual motivations. Nonetheless, her Honour accepted that the offence involved an invasion of the complainant's privacy and autonomy.
The other two offences occurred on the same day about a year later. Between late 2011 and 2012 the complainant lived with the respondent on the farm for a period of approximately 12 months. At this time the complainant was between 16 and 17 years of age. One evening after both the respondent and the complainant had consumed alcohol and cannabis the complainant fell asleep on a bed in the living area of the house. Sometime later he woke to find the respondent using a sex toy to masturbate his (the complainant's) penis. This act constituted count 2 on the indictment, the offence of aggravated indecent assault, to which the respondent pleaded guilty. In pleading guilty the respondent accepted that masturbation had occurred, although he denied using a sex toy. The sentencing judge accepted the evidence of the complainant that a sex toy was used.
The respondent then placed the complainant's penis in his mouth. The trial judge referred to this as having occurred for 'a matter of seconds'. The complainant then got up and left the room. This act constitutes count 3 on the indictment, the offence of aggravated sexual penetration. The respondent denied that this act had occurred but was found guilty following the trial.
The trial judge found that at the time of this incident both the complainant and the respondent had consumed intoxicating substances and that the complainant, at least initially, was asleep. Her Honour described this as 'furtive behaviour' in that the respondent took advantage of the complainant whilst he was intoxicated and asleep. Her Honour said that this did not minimise the effect of the conduct but it was significant that the respondent did not seek to persuade the complainant to engage in the conduct. There was also no attempt to overbear the complainant's will. Her Honour found that the respondent probably had a somewhat suppressed and unacknowledged sexual interest in the complainant.
At trial the prosecution also led evidence of an uncharged act that took place in Queensland when the complainant was 15 years old. The complainant travelled to Queensland with the respondent for the wedding of a family friend. Both the complainant and the respondent became intoxicated. The complainant went to bed in a bed they were sharing in a campervan. Sometime later the complainant awoke to find the respondent masturbating his (the complainant's) penis with his hand. The complainant turned over and the respondent stopped. The trial judge was satisfied that this incident had occurred sometime after the events the subject of count 1 and before the events the subject of counts 2 and 3. Whilst the respondent could not be punished for this uncharged act her Honour took it into account as indicating the existence of a sexual interest.

The report to police

The complainant did not report the conduct to anyone until 2012. At that time he was working on a fishing boat with a man his mother was dating. The complainant attempted to commit suicide and then disclosed the events the subject of counts 2 and 3 and the uncharged act. The man then sent text messages to the respondent. The respondent replied by text admitting that he had touched the complainant twice and had felt disgusted with himself. He apologised for what had occurred, described himself as a 'freak', said that he deserved whatever happened and that he intended to go to the police the following day to tell them what he had done.
In fact the respondent called the police on the same day, 25 November 2012. He called 000 and was put through to the police assistance centre. He told the officer who answered that he had done 'something really bad' and that he needed to 'come in tomorrow and report it'. When asked what he had done he said 'molested my son'. The respondent gave his name, address and contact details. The respondent referred to having considered killing himself. The officer who took the call expressed concern about the respondent's wellbeing and said that police officers would be sent to speak to him immediately. The respondent gave directions to the farm. Later that day the respondent participated in a video recorded interview with the police. I will refer to that interview in more detail later in these reasons.
It was accepted by the prosecution at the sentencing hearing that at the time the respondent called the police he was aware that the complainant had spoken to his family about the offences but was not aware that any formal complaint had been made to the police. The sentencing judge accepted that the respondent had contacted the police of his own volition and that he had made an unreserved confession to what he believed he had done in respect of the complainant. Her Honour accepted that the respondent was stressed at the time and had concluded that going to the police was more appropriate than killing himself. She accepted that the respondent was remorseful and had genuine concern for the complainant and the consequences suffered by him. She also accepted that one of the reasons the respondent went to the police was to prevent any risk of the conduct recurring.

The police interview

When interviewed by police on 25 November 2012 the respondent admitted to two sexual incidents involving the complainant. He said that his ex‑wife had telephoned him and abused him for molesting the complainant and he had then realised how much he had hurt the complainant. This caused him to contact the police to 'get it off my conscience'.
The respondent told police that the first incident had occurred six months earlier. He said that he had been giving the complainant a back massage whilst the complainant was lying face down on the bed in his living room watching television. He said the massage continued for about 20 minutes. Towards the end of that period it went 'too far' when he tried to pull down the complainant's shorts. The complainant responded in a negative way and the respondent stopped. The respondent said that he apologised and did not think anything more of the incident. This incident was not the subject of any charge.
When asked whether there was anything sexual about the incident the respondent said that he did not know what he was thinking at the time. He did not know why he had done it. He said that he believed that he was heterosexual but now felt confused. He said he loved the complainant as a son and a mate but had not wanted more than that. He said that the complainant continued to stay with him from time to time after this incident. He said that he had not thought that the first incident had a sexual nature at the time. However the way he thought about that incident had changed following the second incident.
The respondent told police that the second incident had occurred about three months later when the complainant was again staying with him. It was very late and they had both been smoking cannabis. He said that the complainant had fallen asleep on the bed in the living area. He said he had fondled the complainant. He was initially reluctant to provide details because he said he did not wish to embarrass or hurt the complainant any more than he had already. However, when told by the police that they had already spoken to the complainant the respondent admitted to holding the complainant's erect penis with his hand and rubbing it a few times. He said the complainant woke up and 'freaked out'. He said that he apologised to the complainant who then left the room and went to his own bed. He accepted that the complainant did not want the touching to occur. There was a conversation the following morning in which the respondent again apologised and the complainant told him that what he had done was wrong.
The respondent said that what he had done was 'really bad' and 'just wrong' and that the reason he had contacted the police was that he was scared that if he did not do something it might not have been the last time. He said that he just hated to think that he would do it again.
The respondent denied performing oral sex on the complainant. He also denied using a sex toy on the complainant though he admitted that he possessed such an item. He said that he did get the sex toy out at the time of the second incident but did not use it. He accepted that the complainant could have seen it at the time.
The respondent agreed that he had travelled to Queensland for a wedding with the complainant and his younger son. However, he denied that any incident of a sexual nature occurred during that trip. When pressed he said he had no recollection of doing anything of the type but accepted that he was very drunk at the time in question.

The respondent's personal circumstances

The respondent was 50 years old at the time of sentencing and between 46 and 49 at the time of the offending. He has no previous criminal record of any significance.
The respondent had lived his whole life on the family farm, other than when attending boarding school in his youth and a brief period working in the north‑west of the State. He had been hardworking and successful as a farmer. References from members of his family attest to the high regard in which he was held and the support that he continued to enjoy.
After the breakdown in the marriage in 2003 the respondent had led an isolated life. He suffered depression, for which he was treated. He also became a habitual user of cannabis.

The psychologist's report

A report from a clinical psychologist, Ms Helen Fowler, was provided to the sentencing judge.
In that report Ms Fowler said that the respondent had voluntarily attended regular counselling sessions from January 2013. He was initially highly anxious but was frank and forthcoming regarding his history and the offending behaviour. In Ms Fowler's opinion the respondent had responded well to treatment and was motivated to develop greater understanding as to why he had offended in the manner he did. She said that he showed genuine concern for the emotional wellbeing of the complainant. He consistently expressed remorse for his offending behaviour. He also expressed his understanding that he had abused the complainant's trust.
The respondent told Ms Fowler that he had found the trial distressing and that he was concerned for the complainant. He became psychologically vulnerable after the trial and his thoughts of self‑harm increased. He said that he was glad that the police had attended at the farm after he telephoned them in November 2012 because 'otherwise he would have shot' himself.
Ms Fowler identified two risk factors related to the respondent's offending. The first was that he had sexualised a familial relationship. A likely contributing factor to this was the respondent's early adolescent sexual experiences. This had caused him to have a tendency to perceive sex as a natural extension of intimacy and an indicator of a strong relationship.
The second risk factor was the respondent's cannabis use. He reported long term regular use of cannabis and this was associated with the offending. This suggested that cannabis had acted as a disinhibitor, weakening already poor psychological boundaries.
Through treatment the respondent had developed an understanding of the risk factors and his need to cease cannabis and excessive alcohol use. He had developed an appropriate risk management plan that included not allowing any underage males or females to work with him on his farm and abstaining from illicit substance use. The report noted that the respondent had a number of protective factors including acceptance of responsibility, the absence of coercion, a supportive family, insight into the causes of his conduct and motivation to continue to manage risk factors. Ms Fowler considered that the respondent's treatment over the almost 12 month period preceding sentencing had been successful and that he did not have any outstanding forensic treatment needs. She assessed the risk of his reoffending as being low.

The impact on the victim

The impact of the offences on the complainant was significant. He described them in his victim impact statement as 'catastrophic'. He referred to becoming very reserved and depressed and to having difficulties with personal relationships. He had attempted suicide and self‑harm. He said that he felt betrayed, sad and angry. He had lost weight, suffered nightmares and was constantly tired.

The sentencing remarks

One of the challenges for her Honour was to reconcile the claims of remorse and acceptance of responsibility with the fact that the respondent had pleaded not guilty to two of the charges. This needs to be understood in light of the concessions made by the respondent. He conceded that the first incident had occurred and only disputed that it had a sexual connotation. He also accepted that there had been a second incident though he denied that a sex toy had been involved or that he had engaged in oral sex. His concession that there had been masturbation accounts for the plea of guilty to count 2.
Her Honour took the view that the respondent's efforts to cooperate with the police and his expressions of remorse were genuine. She said that differences as to the detail of what had occurred could be explained by the respondent not yet accepting how far he went for psychological reasons. Those differences could also have been caused by the effect of intoxication on memory.
Her Honour considered that the fact that the respondent had voluntarily engaged in psychological counselling for almost 12 months prior to sentencing was a significant factor. She noted that the psychologist's report spoke of positive progress and a low risk of reoffending.

Her Honour said that it was important that children are protected from conduct of this kind. She said that even older teenage children are often not in a position to protect themselves, particularly in circumstances where the behaviour occurs whilst they are sleeping. She noted the importance of general deterrence. However, she did not consider that there was a need for personal deterrence bearing in mind what the respondent had done in going voluntarily to the police, accepting responsibility and undertaking counselling.
Her Honour concluded that sentences of imprisonment were the only appropriate way to deal with the offences. However, she considered that the length of the terms imposed could be moderated having regard to factors favourable to the respondent.
Her Honour said:
As you are aware, this is serious criminal offending. It has devastating consequences and has had in this circumstance particularly devastating consequences on the development, happiness and life of [the complainant]. But the personal factors that I have mentioned that are personal to you: your good character, your admissions and your rehabilitation, are relevant and I do take them into consideration, particularly your concern for [the complainant's] wellbeing and your remorse.
You have accepted now the enormity of what you did in context, even if you do not fully recall and accept the entirety of what you did. You accept that the effects on [the complainant] have been devastating.
I believe looking into your background and taking into consideration Ms Fowler's report, that there may well have been an element of self‑deception or denial in your own ability to compute what it was you wanted to do and what you did, and coupled with the disinhibition brought about by intoxicants, enabled you to commit the offences that you did.

The merits of the appeal

The State takes no issue with her Honour's findings of fact. Nor does it suggest that there were any express errors in the sentencing remarks. Rather it submits that the sentence imposed on the respondent on count 3 was so clearly inadequate as to manifest an implied error in the exercise of sentencing discretion. The considerations relevant to determining whether a sentence is manifestly inadequate are the same as those relevant where a claim of manifest excess is made.
As with any appeal against sentence which is based on implied error the task of the Appeal Court is not to decide what sentence it would have imposed. Rather the task is to determine whether the sentence that was imposed was one that was open to the sentencing judge: Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665, 671 ‑ 672. What must be demonstrated by the appellant is that the sentence was unreasonable or plainly unjust: House v The King (1936) 55 CLR 499, 505.
The exercise of discretion allows for a range of possible sentences; there is no single correct penalty. The discretion entrusted to sentencing judges must be afforded appropriate respect and appeals allowed only where it is clear that the discretion has miscarried. The exercise of sentencing discretion will be informed by the findings made by the sentencing judge as to the facts, the personal circumstances of the offender and any mitigating or aggravating circumstances.
In determining whether or not a sentence is manifestly inadequate the sentence must be viewed in the perspective of the maximum sentence prescribed by law for the offence, the standards of sentencing customarily observed with respect to the offence, the place which the criminal conduct occupies on a scale of seriousness of offences of that type and the personal circumstances of the offender.
The maximum penalty for the offences of indecent dealing and aggravated indecent assault is 7 years' imprisonment. The maximum penalty for the offence of aggravated sexual penetration is 20 years' imprisonment.
As to the seriousness of this offending, there were some aggravating features. The most significant of these was the fact that the respondent had played a significant paternal role in the life of the complainant. At the time of the offending he was no longer the complainant's step‑father but the historical relationship and the trust that came with it persisted. The offences clearly involved a breach of that trust.
As to the offences themselves, it is always difficult to characterise particular sexual offences and the use of adjectives is generally unhelpful. To each victim the offences committed against them will be significant and may have lasting consequences. Nonetheless it is relevant to note that the offence the subject of count 3 was of very brief duration and involved no physical or emotional coercion. It was not suggested that there had been any other penetration offences or that this was a representative count, although there were other offences and evidence indicating a sexual interest.
As to the standards of sentencing customarily observed, there is no established range for sexual offending involving children: RFS v The State of Western Australia [2012] WASCA 58. The circumstances of sexual offending and sexual offenders vary so widely that the sentence imposed in one case can only provide very limited guidance in deciding what sentence should be imposed for a similar offence in another case: The State of Western Australia v Akizuki [2008] WASCA 267. However, even though a range of sentences customarily imposed cannot be discerned it is relevant to consider sentences imposed in comparable cases to ensure as far as possible that there is consistency in sentencing.
The appellant referred to three cases which were suggested as being comparable. In LJP v The State of Western Australia [2010] WASCA 85 a sentence of 2½ year's imprisonment for a brief act of felatio by the 27‑year‑old offender on his 11‑year‑old cousin was reduced to 18 months' imprisonment on appeal. The offender in that case had entered pleas of guilty to the six counts on the indictment. He had made a voluntary disclosure of the most serious offence and had been voluntarily participating in a sex offender's programme for eight months prior to sentencing.
It was suggested by the appellant that the 18 month sentence substituted by the court in LJP demonstrates that the 14 months' imprisonment imposed on count 3 in this case is manifestly inadequate. The difference however is not great, even taking into account that the offender in LJP pleaded guilty. Furthermore, comparison with a single case cannot in itself establish error. When an appeal against sentence is dismissed or when an appeal is allowed and the offender resentenced, the decision on the sentencing outcome does not, of itself, fix the upper or lower limit of the range of sentences for that type of offence: Le v The State of Western Australia [2014] WASCA 120 [39]. In any event in LJP the offence in question occurred in the context of a larger number of other offences, the offences had occurred at times when the offender was acting in the role of babysitter and the victim was significantly younger.
In The State of Western Australia v Rock [2007] WASCA 121 the offender was convicted after trial of three counts of aggravated sexual penetration and 10 counts of sexual penetration. He was 31 years old at the time. The offences related to three female victims aged 14 or 15. The offender had initiated contact with two of the victims using a chat room on the internet. Two of the offences involved acts of cunnilingus for which the offender was sentenced to 2 years' concurrent imprisonment in each case following a successful State appeal. Those sentences were imposed in the context of persistent offending involving multiple victims. There was no acceptance of responsibility by the offender and a specialist report stated that he lacked empathy for his victims and did not appear motivated to undertake treatment. The obvious differences with the present case mean that Rock is not a useful comparator.
In Schriever v The State of Western Australia [2008] WASCA 133 the offender pleaded guilty to seven counts of indecent dealing and two counts of sexual penetration. The offences were committed against two children, a sister who was aged between 5 and 8 and her brother who was aged 10 or 11 at the time of the offences. The offender was aged between 23 and 26 years old at the time. The total effective sentence in that case was 4 years 8 months' imprisonment. That sentence included sentences of 2 years' imprisonment imposed on each of two counts of sexual penetration by performing oral sex on the two victims. The sentence for one of those offences was reduced to 18 months on appeal because it had been voluntarily disclosed to police and that factor had not been taken into account by the sentencing judge. Again there are significant differences between that case and the present case. The offending in Schriever involved more offences and two victims. The offences occurred against very young victims who had been put in the care of the offender whilst their parents were working. There were conflicting psychological reports regarding whether the offender had empathy for the victims and was truly remorseful.
The respondent referred to some other cases, including Murphy v The State of Western Australia [2013] WASCA 178, RFS v The State of Western Australia [2012] WASCA 58, KS v The State of Western Australia [2011] WASCA 85 and TJD v The State of Western Australia [2004] WASCA 310. It is unnecessary to refer to the facts of those cases. It is sufficient to say that there is no established range for offences of this nature and that the sentence imposed on count 3 is not so clearly inconsistent with other sentences as to indicate an error. That is particularly so when account is taken of the personal circumstances of the respondent.
Although an offender's personal circumstances in the case of sexual abuse of children do not generally carry as much weight as they might do in other cases, they are not irrelevant. In the respondent's case there were a number of mitigating factors that could, in combination, properly be characterised as unusual. In particular:
(a)the respondent had voluntarily reported the matter to the police. Whilst aware that the complainant had reported the abuse to his family, the respondent was not aware that any report had been made to the police. His actions in going to the police were indicative of his willingness to accept responsibility for his actions and were consistent with genuine remorse;
(b)the respondent participated in a police interview in which he made significant admissions. Whilst he did not admit all of the details that were subsequently proved against him, the sentencing judge did not consider that this involved any denial of responsibility but rather reflected poor memory, the impact of substance abuse and psychological impediments to accepting everything he did. In these circumstances the fact that there was a trial on two of the counts did not detract from the genuineness of the respondent's remorse;
(c)the respondent had voluntarily engaged in counselling for approximately 12 months prior to being sentenced. His motivation, engagement and response to that counselling was assessed as having been positive and successful;
(d)the respondent was assessed as being at low risk of reoffending.
The positive findings made by the sentencing judge in regard to remorse and rehabilitation were clearly open on the available evidence. The State does not suggest otherwise. In these circumstances the sentence on count 3 was one that was properly open to her Honour. In my view, it has not been established that the sentence was so inadequate as to imply error.
The respondent submitted that even if error was established the appeal should be dismissed in the exercise of the court's residuary discretion referred to in The State of Western Australia v Munda [2012] WASCA 164; (2012) 43 WAR 137 and Munda v The State of Western Australia [2013] HCA 38 [72] ‑ [73]. The respondent relied in this regard on the fact that the State did not seek an expedited appeal in circumstances where by the time the appeal was heard a substantial portion of the sentence had been served and parole was imminent. Given that, in my view, an error in sentencing discretion has not been established, it is unnecessary to consider the residual discretion or whether factors of the type referred to could justify the exercise of that discretion.
For the above reasons I would dismiss the appeal.