Van Doorn v The State of Western Australia

[2008] WASCA 177

VAN DOORN -v- THE STATE OF WESTERN AUSTRALIA [2008] WASCA 177

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2008] WASCA 177
Court:	THE COURT OF APPEAL (WA)
Case No:	CACR:13/2008	Heard:	7 AUGUST 2008
Coram:	STEYTLER P WHEELER JA MILLER JA	Delivered:	25/08/08
No of pages:	9	Judgment Part:	1 of 1
Result:	Appeal allowed
Category:	D
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Parties:	MARCEL ANTONIUS JOHAN VAN DOORN THE STATE OF WESTERN AUSTRALIA
Catchwords:	Criminal law Sentencing Appeal against sentence Whether particular sentences manifestly excessive Whether total term of imprisonment infringed totality principle Turns on own facts
Legislation:	Sentencing Legislation Amendment and Repeal Act 2003 (WA)
Case References:	Deering v The State of Western Australia [2007] WASCA 212 Woods v The Queen (1994) 14 WAR 341

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

IN CRIMINAL

TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : VAN DOORN -v- THE STATE OF WESTERN AUSTRALIA [2008] WASCA 177 CORAM : STEYTLER P

WHEELER JA
MILLER JA

HEARD : 7 AUGUST 2008 DELIVERED : 25 AUGUST 2008 FILE NO/S : CACR 13 of 2008 BETWEEN : MARCEL ANTONIUS JOHAN VAN DOORN

Appellant

AND

THE STATE OF WESTERN AUSTRALIA
Respondent

ON APPEAL FROM:

Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA

Coram : KENNEDY CJDC

File No : IND 1502 of 2007

Catchwords:

Criminal law - Sentencing - Appeal against sentence - Whether particular sentences manifestly excessive - Whether total term of imprisonment infringed totality principle - Turns on own facts

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Legislation:

Sentencing Legislation Amendment and Repeal Act 2003 (WA)

Result:

Appeal allowed

Category: D

Representation:

Counsel:

Appellant : Mr T F Percy QC & Ms A N Blackburn
Respondent : Mr R E Cock QC

Solicitors:

Appellant : D G Price & Co
Respondent : Director of Public Prosecutions (WA)

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

Deering v The State of Western Australia [2007] WASCA 212
Woods v The Queen (1994) 14 WAR 341


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1 STEYTLER P: The appellant was convicted, after pleading guilty, on three counts of indecently dealing with a child aged between 13 and 16, one of attempting to sexually penetrate a child of that age, two of sexually penetrating a child of that age and one of using electronic communications to expose a person under 16 years to indecent material. He was sentenced to terms of 3 months' imprisonment on each of the three counts of indecent dealing, to a term of 3 years' imprisonment on the count of attempted sexual penetration (count 3), to a term of 3 years' and 6 months' imprisonment on the first of the sexual penetration charges (count 4), to a term of 3 years and 6 months' imprisonment on the second sexual penetration charge (count 5) and to a term of 6 months' imprisonment on the charge of using electronic communication to expose a person aged under 16 years to indecent material (count 6). The terms imposed in respect of counts 4 and 6 were ordered to be served cumulatively. The remaining terms were ordered to be served concurrently with each other and with the terms imposed on counts 4 and 6. This gave rise to a total sentence of 4 years' imprisonment. The appellant was made eligible for parole. He appeals against the sentences imposed on counts 3, 4 and 6 and also against the total period of imprisonment imposed.

The offending behaviour

2 The appellant and the complainant were neighbours. He was 29 years old. She was 13 when the offending started and 14 when it ended. Notwithstanding the age difference, the two of them were attracted to each other.

3 At some unidentified date towards the end of 2006, the appellant and the complainant met at a place known as Turtle Bridge in Hazelmere. The appellant kissed the complainant on her mouth for about three seconds. This gave rise to count 1. They walked back towards their respective homes. As they were doing so, the appellant grabbed the complainant on the buttock with his hand. This gave rise to count 2.

4 On 22 December 2006 the appellant and the complainant met near the bank of the Swan River in Woodbridge. The appellant removed the complainant's underwear and, after making use of a condom, attempted to penetrate her vagina with his penis. His attempt was unsuccessful. This gave rise to count 3.

5 On the following day the two met at Turtle Bridge. They went to the place near the river where they had been on the previous day. They had sexual intercourse. This gave rise to count 4. At some stage, the appellant's penis fell out of the complainant's vagina. He reinserted it and

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continued having intercourse with her until she started to bleed from the vagina. This gave rise to count 5.

6 Between 1 September 2006 and 24 February 2007 the appellant and the complainant went to a cinema to watch a film. While in the cinema, the appellant kissed the complainant on the lips for about three seconds. This gave rise to count 7.

7 So far as count 6 is concerned, the statement of material facts prepared on behalf of the State alleges that, between 1 September 2006 and 24 February 2007, the appellant used his mobile telephone camera to film himself masturbating and then sent this footage to the complainant's mobile telephone.

8 On 23 March 2007 the complainant told the police what had taken place. A search warrant was subsequently executed at the appellant's home. He was interviewed and made a number of admissions before being charged with these offences.

The appellant's personal circumstances

9 The appellant was a person of prior good character who was in full-time employment at the time of sentencing. His pleas of guilty were all made on the fast-track system. He accepted some degree of responsibility and showed remorse for the offences although, in comments subsequently made to police officers, the author of the pre-sentence report and a psychologist employed by the Department of Corrective Services, he tended to place some of the responsibility for his offending behaviour on the complainant. He said that he had sympathised with her because she had told him (untruly) that her biological father was dying and that her step-father was abusing her. The appellant terminated the relationship once he learned that the complainant had been lying to him. He said that he had believed that he was in love with the complainant.

10 It is not in doubt that the appellant was aware of the complainant's age and that he knew that his conduct was criminal. By way of example, he had written a note to the complainant in which he said that it was not her age that was 'holding [him] back' but that it was 'what your parents or police would do to me'. The complaint to police was made only after the complainant's mother and step-father had learned of the nature of the relationship between the complainant and the appellant.

11 The appellant was seen by a psychologist, Dr Phil Watts, at the request of the appellant's solicitors. Dr Watts subsequently provided a

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report dated 24 September 2007. In it, he said that the appellant was suffering from attention deficit hyperactivity disorder. He described the appellant as immature and lacking judgment. Dr Watts said that there appeared to be no evidence that the appellant had a sexual attraction to, or preoccupation with, prepubescent girls. The appellant presents a relatively low risk of reoffending. He has taken steps to address his abuse of alcohol and cannabis.

Sentencing remarks

12 The sentencing remarks were very brief. The sentencing judge mentioned that the relationship between the appellant and the complainant had stretched over a period, with some breaks, from about September 2006 to February 2007 and that the appellant had known that what he was doing was wrong. She quoted Dr Watts' comment that the appellant was emotionally immature and that this was common of people with attention deficit disorder. She also accepted Dr Watts' assertion that there was nothing to suggest that the appellant had any particular attraction to prepubescent girls and that his attraction to the complainant was based largely on his level of maturity. She said that, although the appellant had neither pressured the complainant nor been unkind to her, he had had an obligation to protect her from her own 'vulnerability and stupidity'. She referred to references that had been prepared in respect of the appellant and accepted that he appeared to be genuinely remorseful. Finally, she accepted that the appellant's antecedents were good and that he was unlikely to reoffend.

Grounds of appeal

13 There are three grounds of appeal.

14 The first is that the sentence imposed on count 6 was manifestly excessive. This is said to be because the appellant was sentenced upon a factual basis that differed from his instructions to his counsel. The appellant contends that he had instructed his counsel that he had used his mobile telephone to send the complainant a photograph of his penis, but that he had not sent her a video of himself masturbating. He says that, notwithstanding this, his counsel took no issue with the State's version of events in respect of count 6.

15 Ground 2 contends that the sentences imposed on counts 3 and 4 were each manifestly excessive. Ground 3 challenges the total term of 4 years' imprisonment upon the basis that it infringes the totality principle.

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Ground 1 - failure to take instructions

16 The appellant has sworn an affidavit dated 23 March 2008 in which he deposes to the fact that he told his then counsel that he had not sent the complainant a video of himself masturbating. That affidavit, supported by an affidavit from the appellant's mother, gives a good deal of detail concerning the timing, nature and content of the appellant's instructions to his counsel. The appellant's then counsel has sworn an answering affidavit in which he takes issue with some of what is said by the appellant, but says that he cannot now be confident that the appellant's instructions were not as the appellant now asserts. It is unnecessary to give further attention to this evidence as the respondent, very properly, accepts that the appellant's instructions to his counsel were that, so far as count 6 is concerned, he had done no more than submit a photograph of his penis to the complainant and that these instructions were misunderstood or overlooked by the appellant's then counsel.

17 Ground 1 should consequently be upheld. A sentence of 6 months' imprisonment, after applying the mandatory reduction required by the transitional provisions of the Sentencing Legislation Amendment and Repeal Act 2003 (WA), is manifestly excessive for an offence of the kind in fact admitted to by the appellant. Ordinarily, I would have considered a fine to be appropriate for an offence of that kind. However, because a sentence of imprisonment is anyway required in respect of the other offending, I would impose a term of 2 months' imprisonment, to be served concurrently with the other terms.

Ground 2 - counts 3 and 4

18 I have said that the appellant was sentenced to a term of 3 years' imprisonment (4 1/2 years prior to the operation of the transitional provisions) on count 3 and to a term of 3 years and 6 months' imprisonment (5 years and 3 months' imprisonment prior to the required statutory reduction) on count 4. The offences charged in these two counts are serious, given the age differential. However, the sentences were very severe. It is instructive to compare them with those imposed in Deering v The State of Western Australia [2007] WASCA 212, decided at about the time at which the appellant was sentenced.

19 The appellant in Deering was convicted, after pleading guilty, on one count of digital penetration of a child aged 13 and four counts of penile penetration of the same child. He had worked with the complainant's mother and, when he was 23 years old, she had invited him to live in her home. A month or two later, the appellant commenced a relationship with

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the complainant. This lasted for a little less than a year. During the course of it, the complainant's mother learned of the relationship and asked the appellant to move out of the house. He did so, but continued the relationship for some months thereafter. When the complainant's mother found out that the relationship was ongoing, she required the complainant to contact the police and she did so. The appellant made prompt admissions and pleaded guilty at an early stage. Although there were only four counts of penile penetration, it was not in dispute that there had been around 10 such instances. He had no prior convictions for offences of that nature. He was regarded as 'cognitively and emotionally immature with low self confidence'. After a successful appeal, he was sentenced to a total term of 2 years and 6 months' imprisonment with eligibility for parole.

20 The total sentence imposed in Deering was made up of a term of 8 months' imprisonment in respect of the digital penetration and terms of 1 year and 10 months' imprisonment in respect of each of the penile penetrations. The sentences imposed in respect of counts 2 to 5 (the penile penetrations) were ordered to be served concurrently with each other, but cumulatively upon that imposed in respect of the digital penetration.

21 In the present appeal there was no suggestion, from either side, that the sentences imposed in Deering were not reflective of the range for offending of that kind (so far as there is one). Nor is it suggested (and nor do my researches reveal) that the total sentence in that case was inadequate or excessive when compared with cases involving similar offending. There is little to distinguish the offending, or the offender, in this case from that in Deering. The appellant in the present case is somewhat older than the appellant in Deering. However, the difference is not particularly significant, given the immaturity of both men. Also, the offending in Deering lasted a good deal longer than that in the present case.

22 In these circumstances, it seems to me that the terms of 3 years' imprisonment imposed on count 3 and 3 years and 6 months' imprisonment imposed on count 4 were manifestly excessive. More appropriate sentences in all of the circumstances of this case would, in my respectful opinion, have been terms of 14 months' imprisonment on count 3 and 2 years and 4 months' imprisonment on count 4 (after making the one-third reduction mandated by the transitional provisions). I would accordingly set aside the sentences imposed by the sentencing judge on those counts and substitute, in lieu, the sentences to which I have referred.

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23 Before leaving these grounds, I should mention that counsel for the appellant argued the appeal upon the assumption that a term of 6 months' imprisonment was imposed on count 5. In fact, a term of 3 years and 6 months' imprisonment was imposed on that count, as I have mentioned. It necessarily follows from what I have said concerning counts 3 and 4 that I would regard this term, too, as manifestly excessive. However, no doubt because of counsel's error, there has been no appeal in respect of it. Fortunately, nothing turns on this issue because ground 3, to which I am about to turn, raises the issue of totality and, for the reasons given below, that ground succeeds, requiring the re-sentencing of the appellant on count 5 in any event.

Ground 3 - totality

24 In my respectful opinion, an appropriate total sentence in the circumstances of this case is one of 2 years and 6 months' imprisonment. As I have said, the appellant is an emotionally immature man (in common with others who suffer from his disorder) who believed himself to be in love with the complainant. The sentencing judge found that he had neither pressured nor been unkind to the complainant. His antecedents were good and he has demonstrated some remorse. He is unlikely to re-offend. He pleaded guilty on the fast-track. The offences charged in counts 1 and 7 were trivial, at best. The offending charged in count 2 was minor. Had the sentences imposed on those counts been appealed (and they were not, I assume, only because they made no difference to the total sentence imposed), I would have reduced them. Also, the offences charged in counts 4 and 5 were essentially one episode and the bringing of two charges strikes me as artificial. In the circumstances, a total effective sentence of 2 years and 6 months' imprisonment seems to me to bear a proper relationship to the overall criminality of all the offences, viewed in their entirety and having regard to the circumstances of the case, including those referable to the offender personally: Woods v The Queen (1994) 14 WAR 341.

25 In order to achieve this, I would set aside the sentence imposed on count 5 (which is longer than the total sentence that I regard as appropriate) and substitute, in lieu a sentence of 12 months' imprisonment. I would direct that the term of 2 years and 4 months' imprisonment that I would impose on count 4 commence after the appellant has served 2 months of the term that I would impose on count 3. All other terms should be served concurrently with each other and with the terms imposed in respect of counts 3 and 4.

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Conclusion

26 I would allow the appeal and set aside the sentences imposed by the sentencing judge on counts 3, 4, 5 and 6 and the orders made by him for cumulation and concurrency. In lieu, I would impose terms of 14 months' imprisonment on count 3, 2 years and 4 months' imprisonment on count 4, 12 months' imprisonment on count 5 and 2 months' imprisonment on count 6. I would order that the term of 2 years and 4 months' imprisonment imposed on count 4 be served partially concurrently with the term imposed on count 3, in that it is to commence after the appellant has served 2 months of the sentence imposed on count 3. I would order that the other sentences be served concurrently with each other and with the terms imposed on counts 3 and 4. The appellant will remain eligible for parole. He will consequently be eligible for parole after serving 1 year and 3 months of his sentence.

27 WHEELER JA: I agree with Steytler P.

28 MILLER JA: I agree with Steytler P.