Truscott v The State of Western Australia - [2007] WASCA 62

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE COURT OF APPEAL (WA)

CITATION: TRUSCOTT -v- THE STATE OF WESTERN AUSTRALIA [2007] WASCA 62

CORAM: ROBERTS-SMITH JA

HEARD: 2 MARCH 2007

DELIVERED : 2 MARCH 2007

FILE NO/S: CACR 156 of 2006

BETWEEN: DAVID JOHN TRUSCOTT
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent

ON APPEAL FROM:
Jurisdiction              :  DISTRICT COURT OF WESTERN AUSTRALIA
Coram  :CRISFORD DCJ
File No  :IND 691 of 2005

Catchwords:

Criminal law and procedure - Appeal - Application for extension of time - Leave to appeal - Multiple sexual offences against child - Aggregate sentence of 10 years' imprisonment - Whether sentence manifestly excessive - Totality - Whether reasonable prospect of succeeding on appeal

Legislation:

Nil

Result:

Application for extension of time dismissed

Category: B

Representation:

Counsel:

Appellant: Ms J Pepe
Respondent: No appearance

Solicitors:

Appellant: Legal Aid WA
Respondent: State Director of Public Prosecutions

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

BPR v The State of Western Australia [2007] WASCA 41
Buckland v The Queen, unreported; CCA SCt of WA; Library No 980144; 3 April 1998
Dempsey v The Queen, unreported; CCA SCt of WA; Library No 960059, 9 February 1996
Hapke v The State of Western Australia [2006] WASCA 188
Jarvis v The Queen (1993) 20 WAR 201
Johnson v The Queen [2004] HCA 15; (2004) 78 ALJR 616
N v The State of Western Australia [2006] WASCA 276
Postiglione v The Queen (1997) 189 CLR 295
R v Crofts [1999] 1 Qd R 386
R v Major [2001] WASCA 46
Samuels v Western Australia [2005] WASCA 193; (2005) 30 WAR 473
VIM v Western Australia [2005] WASCA 233; (2005) 31 WAR 1
Vlek v The Queen, unreported; CCA SCt of WA; Library No 990153; 29 March 1999

ROBERTS-SMITH JA: The appeal notice in this case was filed on 28 November 2006. The appellant had been convicted on 24 May 2006 and sentenced on 19 July 2006. The last date for appeal was, accordingly, 9 August 2006. The appeal is therefore more than three months out of time. Such a delay has been described as gross (Buckland v The Queen, unreported; CCA SCt of WA; Library No 980144; 3 April 1998 at 3 and 4). Where there has been lengthy delay, exceptional circumstances must be shown before an extension of time will be granted unless it is demonstrated that there will be a miscarriage of justice if the extension is not granted (Buckland and BPR v The State of Western Australia [2007] WASCA 41).
The appellant was convicted after trial before Crisford DCJ and a jury in the District Court at Perth. He was convicted of six offences. They were four offences of sexual penetration of a child under the age of 13 contrary to s 320(2) of the Criminal Code (WA) ("the Code"), one offence of indecent dealing with a child under the age of 13 contrary to s 320(4) of the Code and one of indecently recording a child under the age of 16 contrary to s 320(6) of the Code.
He was sentenced to an aggregate of 10 years' imprisonment with an order that he be eligible for parole. There are two grounds of appeal. They are as follows:
"Ground 1 - Sentence manifestly excessive - The Judge erred in law in imposing a sentence that was manifestly excessive in all the circumstances
Particulars
On 19 July 2006 the Appellant received the following sentences:
Count 1:5 years imprisonment;
Count 2:3½ years imprisonment to be served concurrently with count 1;
Count 3:5 years imprisonment to be served cumulatively;
Count 4:5 years imprisonment to be served concurrently with count 1;
Count 5:12 months imprisonment to be served concurrently with count 1.
Count 6:16 months imprisonment to be served concurrently with count 1.
Therefore, a head sentence of 10 years imprisonment was imposed with parole eligibility.
Ground 2 - Totality - The Judge erred in not appropriately implementing the totality principle to calculate the sentence.
Particulars
The sentences imposed on counts 1 and 3 were ordered to be served concurrently with each other."
What, of course, Ms Pepe means by that is "cumulatively" not "concurrently". The particular is incorrect in that respect.
It will be immediately apparent that what are described as "particulars" are nothing of the kind. The particulars required by r 32(4)(b) of the Supreme Court (Court of Appeal) Rules 2005 (WA) are particulars of the ground; that is to say, specific details expressed concisely of what the appellant relies upon to make out the ground. What are described as "particulars" here say nothing at all about that. Furthermore, both grounds are, in effect, the same.
It is apparent from the submissions advanced on behalf of the appellant that the complaint is against the aggregate term of 10 years' imprisonment. No complaint is made about the individual sentences. The sole point sought to be argued therefore is that the aggregate sentence offended the principle of totality, as to which see Postiglione v The Queen (1997) 189 CLR 295 per McHugh J at 307 to 308; R v Crofts [1999] 1 Qd R 386; Jarvis v The Queen (1993) 20 WAR 201 at 216; Johnson v The Queen [2004] HCA 15; (2004) 78 ALJR 616 at [22]; Vlek v The Queen, unreported; CCA SCt of WA; Library No 990153; 29 March 1999 and Hapke v The State of Western Australia [2006] WASCA 188 at [93] to [98].
It is convenient at this point to turn to her Honour's reasons for sentence. Her Honour began by pointing out that the offences ranged from 30 September 2002 to 6 January 2005. She said that at least those were the dates set out in the indictment, although the evidence would suggest the offences were contained to a greater extent than that. She then referred to the statutory penalties which she quite rightly recognised indicate the seriousness of offences of this kind.
She then turned to the victim and the victim's relationship with the appellant. The victim was born on 15 August 1997 and her mother and the appellant formed a relationship in about 2002. The victim called the appellant dad and during the course of the relationship believed him to be her father and indeed, as her Honour observed, that appeared to have been the way the relationship between them was conducted.
She turned then to the various counts on the indictment. In relation to the first two counts, the offences took place on the same day. That was the first occasion, it was said, that matters of this nature happened between the appellant and the complainant and at that time they were living as a family unit in Belmont. The balance of the counts on the indictment took place in Balga after the appellant and the complainant's mother separated and essentially were committed on contact or access visits over a weekend or a holiday period.
Her Honour reiterated that there were four counts of sexual penetration, three of penile penetration of the child's anus and one act of fellatio. When the first two offences occurred, the complainant was five or six years of age. The mother gave evidence at trial. In respect of the first two offences, at that stage the mother was in her bedroom doing something and the complainant was in the lounge room watching Foxtel. The appellant asked the complainant to go into the bedroom for a hug and told her to lie on her tummy and put her bottom in the air. He held onto her hips with his hands and, in the complainant's words, "put his willy in [her] bum" and was moving up and down. Her Honour observed that the complainant's evidence as to that occasion was that she felt sad and it hurt a lot. An act of fellatio took place on the same day. The appellant told her to suck his penis and ejaculated in her mouth. The complainant's evidence was that she drank copious amounts of water to get the taste out of her mouth.
Count 3 was an offence which occurred when the child was seven years of age. She was in the bath. The appellant made her kneel with him behind her. Her hands were holding onto the sides of the bath. Despite gripping the edges she slipped around a lot and again gave evidence that it hurt her. The whole episode went on for a few minutes. It was punctuated with the appellant's penis slipping out and then being put back in again.
Count 4 was an offence which occurred over a Christmas period when the child was seven years of age. A sheet was put on the floor and the appellant, again in the complainant's words, put one hand on his willy to wake it up and moved up and down and then put his penis in her anus. She said she felt it and she felt very sad on that occasion because she had formed the view that dads did not do that sort of thing.
In relation to count 5, that concerned an indecent dealing by the playing of a pornographic video in the complainant's presence. That was entitled "Bendovers Bummed Out in Britain" and showed male and female adults engaged in sexual activity. The final count on the indictment related to an indecent recording of the complainant by the appellant which was found on his computer in his home.
Her Honour noted that the appellant's rather lame explanation, as she described it in relation to that last, was that the child indecently recorded herself. Her Honour referred to a victim impact statement. Contrary to a submission which had been put to her by the appellant's counsel prior to sentencing, her Honour said she did not accept that the child had coped well and if she did appear to, then it was through the assistance of counselling and her mother and it seemed to her Honour that, given the victim impact statement, the complainant had a long way to go.
She also referred to a pre‑sentence report and a report from a forensic psychologist in relation to the appellant. As to the appellant's personal circumstances, she noted that he was 41 years of age and a single man who had a harsh early life at the hands of his father. He had done two stints in the services and was honourably discharged on both occasions. He had been involved in telemarketing since 1994. He had three children between three and 16 years of age.
Her Honour said that she had been told by the appellant's counsel that in 1996 he was diagnosed with bipolar disorder and that when on medication he did not exhibit any difficulties. However, the psychiatric report indicated that the appellant did not fit the criteria for diagnosis of bipolar disorder but rather suffered from recurrent depressive episodes. Her Honour noted that in the past he had had significant problems with the abuse of illicit substances and he had also abused alcohol and had a problem in that regard.
She then adverted to what had been said by the appellant's counsel. She said she accepted what had been said by counsel that there was really nothing to be said in mitigation. The appellant did have prior convictions but they were relatively minor and her Honour took no particular regard to those. She did note that he had not pleaded guilty and, as a consequence, she was not in a position to give any credit at all for a plea of guilty. That patently was clearly correct.
She went on to say that, of course, she would only sentence the appellant for the matters on the indictment but it seemed to her, having heard the evidence at trial, that there was fairly clear evidence that the offences were representative of a course of conduct over a period of time. There appeared to be a continual denial of the offences and that illustrated to her Honour a desire to avoid the consequences and it did indicate a lack of remorse and a lack of empathy for the victim. She went on a little later to say that there was a lack of motivation to accept the obvious problems and to address them and that the appellant continued to blame the victim's mother.
She said that it was clear the appellant was in a position of great trust in relation to the child and standing in relation to her as stepfather and the trust was clearly abused. Furthermore, her Honour observed that, given the acts performed, it seemed to her the appellant had displayed a degree of perversion and deviance. There was a considerable age difference between him and the victim of well over 30 years.
She accepted there was no physical violence, but there was an element of coercion. She gave an example of that, namely, when he showed the child the pornographic movie, according to the evidence given by the complainant, he pointed out to her that the female in the movie was enjoying the sexual acts and queried why she did not enjoy the sexual acts that he committed upon her. Her Honour noted that he was persistent in his endeavours with the child.
The complainant's evidence was that she was frightened to tell anyone for fear she would lose her mother and she said in evidence that she was told by the appellant close to the time of the first offending that that in fact was what would happen if she said anything to her mother. Her Honour then made the comment again that the appellant had showed no remorse and at that stage rehabilitation was unlikely. She said young and vulnerable victims need protection from sexual predators.
The conduct took place over a number of years. It was not an impulsive act on one occasion. Her Honour considered that the dominant sentencing considerations were punishment and general deterrence and that she saw these offences as being extremely serious matters. She expressly, in imposing sentence, adverted to the need to take into account the issue of totality.
The appellant's submissions are essentially cast around what Ms Pepe described as 12 points of reference established by Dempsey v The Queen, unreported; CCA SCt of WA; Library No 960059, 9 February 1996. Ms Pepe submits, having referred to Dempsey, that the appellant's behaviour was of a high degree of criminality and perversion as he did have full sexual intercourse with the victim by penetrating her anus with his penis and ejaculating and that admittedly the relative age of the offender to the victim was high, but submitted this did not warrant the severity of the sentence imposed. She refers to R v Major [2001] WASCA 46 in which the victim was 13 years of age with an accused aged 57 years. She says the offence was aggravated, repeated and premeditated, yet only attracted a penalty of 6 years. She goes on to say:
"The relative age of the offender in R v Major was higher than that of the appellant and his victim and in my view the acts of the offender in R v Major were also of a higher degree of criminality due to the persistence and force used against the victim."
In similar vein in respect of ground 2, the totality principle, towards the end of her submissions Ms Pepe states in her submissions that, given the comparisons to which she refers, it appears that the sentence given for the individual offences was excessive in proportion to the criminality of the offences, giving the overall result of a manifestly excessive sentence. She says:
"It is on this basis that I believe the individual sentences should be reduced to give the effect of a lower cumulative sentence."
It is necessary to repeat what I have said previously about the expression of personal views by counsel. I do so because it is unfortunately an increasingly common practice and it is completely inappropriate and unhelpful. The personal views of counsel or of a party's solicitor about the merits of their client's case cannot possibly assist the Court. They ought not to be expressed. I reiterate what I said about that in N v The State of Western Australia [2006] WASCA 276. That was a bail application, but in her affidavit in support counsel had said that based on the information which she had been given she was of the view that there were exceptional reasons why the applicant should not be kept in custody pending her appeal. As to that, I said at [14]:
"With all due respect to counsel, it is neither appropriate nor relevant for a lawyer to put her or his personal views or beliefs to the court even in the form of submissions, much less an affidavit of evidence of facts bearing on the application before the court. The personal or professional views of a party's legal advisors or representatives are simply irrelevant. What the law requires is proof (in whatever form and of whatever weight) of facts which will go for or against the matters the court has to decide. It is the view or opinion of the court or judge about the facts and the law which must be the determining factor. Were it otherwise, a view by the lawyer for one party that their client's case has merit would be met simply with an assertion by the lawyer for the other party that in their view it does not."
So it is in this case that counsel's personal view about whether the acts of another offender were of a higher or lower order of criminality than those of the appellant is simply irrelevant.
As it happens, I hold a different view to Ms Pepe about R v Major as a comparator with the present case. That was a Crown appeal. The respondent had originally been sentenced to an aggregate of 2 years' imprisonment for nine offences of indecent dealing with a child under 16 and one of unlawful detention and one of aggravated sexual penetration without consent. That last offence involved digital penetration of the 13‑year old complainant's vagina. The respondent was a friend of the complainant's family. He was not a relative, although known to her as Uncle Arthur. The offences occurred on two separate occasions but on the same day. The respondent forced himself on the complainant in her own home while her parents were out.
The offences in the present case were far more serious. They were committed over a period of years, commencing when the complainant was only five or six years old. The appellant was her stepfather. They involved penile penetration of the complainant's anus, fellatio to ejaculation and the making of a pornographic image of the complainant. I also note that in Major the Court of Criminal Appeal increased the sentence to 4 years' imprisonment. That, of course, was a Crown appeal so in accordance with the restraint applicable to such appeals the resultant sentence was appreciably lower than it would have been had it been imposed at first instance.
I need elaborate on the differences no further to make the point that comparisons of cases on the basis of their factual circumstances afford little practical utility when an appellate court is being asked to form a view that a particular aggregate sentence is so disproportionate to the offender's overall criminality or is crushing so as to offend the principle of totality in sentencing.
I have read and considered all the submissions put on behalf of the appellant. They are generally put in the same way, that is, on the basis of comparison with other individual cases. No point of principle is argued.
In VIM v Western Australia [2005] WASCA 233; (2005) 31 WAR 1 (which is not referred to in the appellant's submissions), the Court of Appeal considered in considerable detail the sentencing regime and the standards of sentencing for sexual offences. It is not necessary to say more about that now than to refer to what the Court said at [312]:
"The most that can be said, perhaps, is that, after the transitional provisions the authorities reviewed suggest an aggregate sentence of 10 to 19 years would be imposed after trial in most cases of very serious repeated sexual offending where the offences are representative of a course of conduct."
The present case certainly falls within the category of very serious repeated sexual offending where the offences are representative of a course of conduct. I do not take that reference to "representative" to be limited to cases only where offences are specifically charged as representative counts. On that view the aggregate term here is at the very bottom of the range. I am not persuaded the Court of Appeal would take a different view. I am not persuaded either ground of appeal has that reasonable prospect of success which s 27(2) of the Criminal Appeals Act 2004 (WA) requires (see Samuels v Western Australia [2005] WASCA 193; (2005) 30 WAR 473).

As I would refuse leave to appeal on each ground, the application for extension of time must be refused. The order will be: application for extension of time within which to file the appeal notice is dismissed.