Van Zyl v The State of Western Australia

[2017] WASCA 1

VAN ZYL -v- THE STATE OF WESTERN AUSTRALIA [2017] WASCA 1

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2017] WASCA 1
Court:	THE COURT OF APPEAL (WA)
Case No:	CACR:129/2016	Heard:	18 NOVEMBER 2016
Coram:	BUSS P MAZZA JA	Delivered:	10/01/17
No of pages:	13	Judgment Part:	1 of 1
Result:	Leave to appeal refused Appeal dismissed
Category:	D
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Parties:	LOUIS CASPER WILLIAM VAN ZYL THE STATE OF WESTERN AUSTRALIA
Catchwords:	Criminal law Appeal against sentence Totality principle Advanced age of offender
Legislation:	Criminal Code (WA), s 183, s 324E
Case References:	Bishop v The Queen [2003] WASCA 79 DKA v The State of Western Australia [2015] WASCA 112 ERA v The State of Western Australia [2013] WASCA 163 F v The State of Western Australia [2008] WASCA 100; (2008) 184 A Crim R 125 FWB v The State of Western Australia [2016] WASCA 118 GHK v The State of Western Australia [2014] WASCA 19; (2014) 238 A Crim R 178 Gulyas v The State of Western Australia [2007] WASCA 263; (2007) 178 A Crim R 539 Hili v The Queen [2010] HCA 45; (2010) 242 CLR 520 House v The King (1936) 55 CLR 499 Hughes v The State of Western Australia [2014] WASCA 78 KC v The State of Western Australia [2008] WASCA 216 LFG v The State of Western Australia [2015] WASCA 88; (2015) 48 WAR 178 M v The State of Western Australia [2007] WASCA 238 NHT v The State of Western Australia [2016] WASCA 167 RJB v The State of Western Australia [2009] WASCA 49 RNN v The State of Western Australia [2010] WASCA 26 Roffey v The State of Western Australia [2007] WASCA 246 Rowan v The State of Western Australia [2009] WASCA 185 Smith v The State of Western Australia [2010] WASCA 176 Stubley v The State of Western Australia [2010] WASCA 36 The Queen v Kilic [2016] HCA 48 The State of Western Australia v FJG [2012] WASCA 206 The State of Western Australia v PJW [2015] WASCA 113 The State of Western Australia v Prince [2011] WASCA 22 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 : VAN ZYL -v- THE STATE OF WESTERN AUSTRALIA [2017] WASCA 1 CORAM : BUSS P

MAZZA JA

HEARD : 18 NOVEMBER 2016 DELIVERED : 10 JANUARY 2017 FILE NO/S : CACR 129 of 2016 BETWEEN : LOUIS CASPER WILLIAM VAN ZYL

Appellant

AND

THE STATE OF WESTERN AUSTRALIA
Respondent

ON APPEAL FROM:

Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA

Coram : TROY DCJ

File No : IND 400 of 2016

Catchwords:

Criminal law - Appeal against sentence - Totality principle - Advanced age of offender

Legislation:

Criminal Code (WA), s 183, s 324E

Result:

Leave to appeal refused

Appeal dismissed

Category: D

Representation:

Counsel:

Appellant : In person
Respondent : No appearance

Solicitors:

Appellant : In person
Respondent : Director of Public Prosecutions (WA)

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

Bishop v The Queen [2003] WASCA 79
DKA v The State of Western Australia [2015] WASCA 112
ERA v The State of Western Australia [2013] WASCA 163
F v The State of Western Australia [2008] WASCA 100; (2008) 184 A Crim R 125
FWB v The State of Western Australia [2016] WASCA 118
GHK v The State of Western Australia [2014] WASCA 19; (2014) 238 A Crim R 178
Gulyas v The State of Western Australia [2007] WASCA 263; (2007) 178 A Crim R 539
Hili v The Queen [2010] HCA 45; (2010) 242 CLR 520
House v The King (1936) 55 CLR 499
Hughes v The State of Western Australia [2014] WASCA 78
KC v The State of Western Australia [2008] WASCA 216
LFG v The State of Western Australia [2015] WASCA 88; (2015) 48 WAR 178
M v The State of Western Australia [2007] WASCA 238
NHT v The State of Western Australia [2016] WASCA 167
RJB v The State of Western Australia [2009] WASCA 49
RNN v The State of Western Australia [2010] WASCA 26
Roffey v The State of Western Australia [2007] WASCA 246
Rowan v The State of Western Australia [2009] WASCA 185
Smith v The State of Western Australia [2010] WASCA 176
Stubley v The State of Western Australia [2010] WASCA 36
The Queen v Kilic [2016] HCA 48
The State of Western Australia v FJG [2012] WASCA 206
The State of Western Australia v PJW [2015] WASCA 113
The State of Western Australia v Prince [2011] WASCA 22
Truscott v The State of Western Australia [2007] WASCA 62



1 REASONS OF THE COURT: Before the court is the appellant's application for leave to appeal against sentence. The appellant was charged on indictment in the District Court with 13 sexual offences against a child whom we will refer to in these reasons as A. The offences were alleged to have occurred in a period of approximately 11 months between 15 March 1989 and 1 March 1990.

2 At the time, A was 9 or 10 years of age. The appellant was in his late forties.

3 The appellant pleaded guilty to all 13 counts and was duly convicted of them. On 29 July 2016, he was sentenced by Troy DCJ as follows:

Count	Offence	Maximum penalty	Penalty imposed
1	Sexual penetration of a child under the age of 16 years without consent (by placing A's penis in the appellant's mouth) Section 324E of the Criminal Code	20 years' imprisonment	2 years' imprisonment
2	Indecent dealing of a child under the age of 14 years (by the appellant rubbing his penis on A's penis) Section 183 of the Criminal Code	7 years' imprisonment	1 year's imprisonment
3	Indecent dealing of a child under the age of 14 years (by the appellant rubbing his penis on A's penis) Section 183 of the Criminal Code	7 years' imprisonment	1 year's imprisonment
4	Sexual penetration of a child under the age of 16 years without consent (by placing A's penis in the appellant's mouth) Section 324E of the Criminal Code	20 years' imprisonment	2 years' imprisonment
5	Sexual penetration of a child under the age of 16 years without consent (by placing the appellant's penis in A's mouth) Section 324E of the Criminal Code	20 years' imprisonment	2 years' imprisonment
6	Sexual penetration of a child under the age of 16 years without consent (by placing A's penis in the appellant's mouth) Section 324E of the Criminal Code	20 years' imprisonment	2 years' imprisonment
7	Indecent dealing of a child under the age of 14 years (by the appellant masturbating A's penis) Section 183 of the Criminal Code	7 years' imprisonment	18 months' imprisonment
8	Indecent dealing of a child under the age of 14 years (by the appellant masturbating A's penis) Section 183 of the Criminal Code	7 years' imprisonment	18 months' imprisonment
9	Sexual penetration of a child under the age of 16 years without consent (by placing A's penis in the appellant's mouth) Section 324E of the Criminal Code	20 years' imprisonment	2 years' imprisonment
10	Sexual penetration of a child under the age of 16 years without consent (by placing A's penis in the appellant's mouth) Section 324E of the Criminal Code	20 years' imprisonment	2 years' imprisonment
11	Sexual penetration of a child under the age of 16 years without consent (by placing the appellant's penis in A's mouth) Section 324E of the Criminal Code	20 years' imprisonment	15 months' imprisonment
12	Indecent dealing of a child under the age of 14 years (by the appellant putting A's penis in a vacuum cleaner) Section 183 of the Criminal Code	7 years' imprisonment	15 months' imprisonment
13	Sexual penetration of a child under the age of 16 years without consent (by placing A's penis in the appellant's anus) Section 324E of the Criminal Code	20 years' imprisonment	27 months' imprisonment

4 The learned sentencing judge ordered that the sentences on counts 1, 5, 11 and 13 be served cumulatively. He ordered that the sentences on all of the other counts be served concurrently. Thus, the total effective sentence was 7 years and 6 months' imprisonment. The appellant was made eligible for parole. The sentences were ordered to commence on 29 July 2016.

5 The appellant does not allege that his Honour made any express error, nor does he take issue with the individual sentences that were imposed. The two grounds of appeal upon which he relies, in substance, allege that the total effective sentence infringes both limbs of the totality principle.

6 For the following reasons, we have concluded that the proposed grounds have no reasonable prospects of success. We would refuse leave to appeal on each ground, with the consequence that the appeal is taken to have been dismissed: s 27(1), (2) and (3) of the Criminal Appeals Act 2004 (WA).

The facts

7 A's parents owned a Chinese restaurant. One of their employees was the appellant's wife. Over time, the appellant and his family became friends with A's parents, to the point where they invited the appellant and his wife to live with them while their house was being built. Some of the offences occurred while the appellant and his wife were living at A's family home. The other offences occurred at the appellant's home on occasions when the appellant babysat A.

8 The learned sentencing judge described the offending in these terms:

As I indicated I will sentence you on the basis that your criminality in respect of your victim is confined to the counts that are specified and set out in the indictment. What they show is that on one occasion you placed the penis of a nine-year-old boy into your mouth.

That's count 1. That occurred when his parents and your wife were at work and you were left in charge. You bathed him and then took him back to your bedroom where you performed fellatio on him for a number of minutes.

On two other separate occasions whilst in a bath with him you rubbed your penis against his penis. You were both naked at the time. That gives rise to count 2 and also count 3 and on the second of those two occasions, count 3, you ejaculated into a sink.

On a further occasion while babysitting you first placed your victim's penis into your mouth, count 4, then you placed your penis into his mouth, count 5. That caused the victim to gag. On that same occasion you then for a second time placed his penis into your mouth, count 6.

On a further occasion you on two separate episodes masturbated your victim. That gives rise to count 7 and 8. By this time your victim was 10 and your offending had become increasingly brazen in that your wife was in the house, but had gone to bed.

Your victim had been left in your care overnight because his parents trusted you. You placed your hands down the back of your victim's pyjamas and then began to masturbate him. That gives rise to count 7.

You stopped when your wife came back into the room asking why you were still awake, but remarkably resumed what you were doing when she went to bed, count 8. Count 9 is another occasion when you placed your victim's penis into your mouth.

On another occasion you placed your victim's penis into your mouth, count 10, and on that same occasion you also placed your penis into his mouth, count 11, again causing him to gag.

Finally on the last specified occasion on the indictment you placed your victim's penis into a vacuum cleaner causing obvious discomfort to him and on that same occasion you firstly it seems unsuccessfully attempted to anally penetrate him which is not a count you are charged with, but then using a condom that had been on your penis at that time you caused him to wear that condom and to penetrate your anus with his penis. That's count 13, the episode with the vacuum cleaner being count 12 (ts 21 - 22).

9 His Honour found that the appellant was in a position of trust and that he took advantage of the relationship he had with A's parents to gain access to him. His Honour also found that the offending was neither momentary nor impulsive. He described it as sustained and repetitive. Although the appellant did not use threats, physical coercion or violence, he groomed A to facilitate the sexual abuse. His Honour noted that there were elements of perversion in the manner that counts 12 and 13 were committed.

10 His Honour referred to A's victim impact statement. He remarked that the appellant's actions have had a profound impact upon A's life.

The appellant's antecedents

11 His Honour had the benefit of a number of documents, including a pre-sentence report, a psychological report written by Ms Wendy Wager, a psychiatric report written by Dr Mark Hall, and a medical report by Dr Li, the appellant's general practitioner.

12 The appellant was almost 74 years of age when he was sentenced. He worked until he was 70 and has a supportive wife and daughter. His early life was marked by what his Honour described as 'appalling childhood experiences'. The appellant suffers from no recognisable mental disorder and has no outstanding psychiatric treatment needs. His Honour noted the medical report from Dr Li which describes some physical health problems from which the appellant suffers. However, his Honour found that the appellant's health relative to his age was 'more favourable than other offenders of advanced age who have come before the Court of Appeal in recent years'. His Honour observed that there was nothing to suggest that any of the appellant's health issues could not be adequately managed in a prison setting.

13 On 8 December 2000, the appellant was sentenced to 3 years' immediate imprisonment with respect to sexual offences committed against a girl aged about 10. While serving that term of imprisonment, the appellant completed a sex offender treatment program. Since completing that sentence, the appellant has not committed any further sexual offence. His Honour considered that, by reason of the convictions in 2000, the appellant could not 'claim the benefit of good character', but he accepted that the appellant's risk of reoffending was low and that personal deterrence did not 'loom as large as it does in some cases'.

14 His Honour noted the substantial delay between the commission of the offences and their prosecution by the authorities. He did not find the delay to be mitigatory. He observed the delay was explicable, given the fact that A was only a child at the time of the offences and that, for many years, he coped with them by pretending they had never happened. His Honour said that in the 'intervening period' there was no evidence of any serious attempt to make amends to A or to rehabilitate.

The sentencing remarks

15 Given that the grounds of appeal do not allege any express error on the part of the sentencing judge, it is unnecessary to refer to the sentencing remarks at length. His Honour took into account as mitigating factors the pleas of guilty for which he gave a reduction of 25%, pursuant to s 9AA of the Sentencing Act 1995 (WA). His Honour found that the appellant regretted his criminal conduct. He characterised the appellant's culpability as being 'at the higher end of the scale of seriousness' of offences of the type committed by the appellant. He noted that the appellant cooperated with the police during their inquiries. His Honour expressly had regard to the appellant's age. It is clear that he regarded the appellant's age and health as relevant sentencing factors.

16 His Honour had regard to both limbs of the totality principle. He considered that some accumulation of the individual sentences was required in order to mark 'the very serious nature of [the appellant's] overall offending and to reflect the important sentencing consideration of general deterrence'. His Honour acknowledged that the sentences he imposed meant that the appellant would potentially serve in custody 'a very significant proportion of [his] remaining life'. He said that this was a consequence of 'the very serious nature of [the appellant's] offending, including the impact that the offending has had and will have on the victim and the need for general deterrence'. His Honour said that he reduced the individual terms to accommodate totality.

The appellant's submissions

17 The appellant represented himself in this appeal. He did not challenge his Honour's characterisation of the seriousness of his offending. In his oral submissions, he described the offences as 'terrible and despicable' (appeal ts 2). With respect to his claim that the first limb of the totality principle has been infringed, the appellant argued that the total effective sentence that was imposed upon him was inconsistent with the outcomes in these cases: FWB v The State of Western Australia [2016] WASCA 118; DKA v The State of Western Australia [2015] WASCA 112; LFG v The State of Western Australia [2015] WASCA 88; (2015) 48 WAR 178; Rowan v The State of Western Australia [2009] WASCA 185; RJB v The State of Western Australia [2009] WASCA 49; KC v The State of Western Australia [2008] WASCA 216; F v The State of Western Australia [2008] WASCA 100; (2008) 184 A Crim R 125; M v The State of Western Australia [2007] WASCA 238 and Truscott v The State of Western Australia [2007] WASCA 62.

18 In support of the submission that the total effective sentence infringed the second limb of the totality principle, the appellant pointed to the fact that he will be 79 by the time he will be eligible for release on parole, and 81 when he has served the entirety of the sentence imposed by his Honour. He asserted that he would, in all likelihood, die in prison.

Legal principles relevant to this appeal

19 An appellate court may only intervene when material error is established. An appellate court is not entitled to intervene merely because it disagrees with the sentence actually imposed. In the present case, the appellant relies upon implied error, being that type of case identified in House v The King (1936) 55 CLR 499, 505, as follows:

It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred.

20 A generally accepted statement of the totality principle was made by McLure JA in Roffey v The State of Western Australia [2007] WASCA 246 [24] - [26]:

The appellant relies on the totality principle which comprises two limbs. The first limb is that the total effective sentence must bear a proper relationship to the overall criminality involved in 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.

The second limb is that the court should not impose a 'crushing' sentence. The word crushing in this context connotes the destruction of any reasonable expectation of a useful life after release: Martino v The State of Western Australia [2006] WASCA 78 [16]. An aggregate sentence may be inappropriately long under the first limb even if it cannot be described as crushing: Jarvis v The Queen (1998) 20 WAR 201, 216 (Anderson J).

The practical effect of the totality principle is ordinarily to arrive at an aggregate sentence that is less than that which would be arrived at by simply adding up all the terms appropriate for the individual offences: R v Holder [1983] 3 NSWLR 245, 260 (Street CJ). A rationale for the totality principle is that there is assumed rehabilitation and reduced demand for retribution after the initial sentences have been served. Where the principle of totality comes into effect, it is of little importance how the ultimate aggregate is made up: R v Holder (260).

21 It is unusual, as a matter of fact, for a total effective sentence to be reduced on appeal because it infringed the second limb of the totality principle. In the majority of cases where the totality principle is invoked, it is as a result of the application of the first limb. That said, there are examples where advanced age has led to a conclusion that the total effective sentence was crushing (Stubley v The State of Western Australia [2010] WASCA 36), the rationale being that each year of a sentence represents a substantial proportion of the period of life which is left to an offender of advanced age: Stubley [411]. The concept underpinning this rationale is essentially mercy: Bishop v The Queen [2003] WASCA 79 [75].

22 The effect of age in sentencing was analysed by Steytler P (with whom McLure & Miller JJA agreed) in Gulyas v The State of Western Australia [2007] WASCA 263; (2007) 178 A Crim R 539 [33] - [54]. We respectfully adopt that analysis. Advanced age is only one of the factors which a sentencer must take into account in order to arrive at a just sentence. Whether, and, if so, to what extent, leniency should be given to an offender of advanced age depends on all the facts and circumstances of the particular case. An offence may be so serious that humanitarian considerations cannot be accommodated.

23 In Smith v The State of Western Australia [2010] WASCA 176, Buss JA (with whom McLure P & Mazza J agreed) reviewed various provisions of the Prisons Act 1981 (WA) (and the Prisons Regulations 1982 (WA)) in relation to the provision of medical treatment for prisoners. At [68], Buss JA noted the following:

Several points of relevance to the present case may be made about this review of the Prisons Act and any period in which the appellant is held in prison. First, the chief executive officer of the department of the Government principally assisting the Minister in the administration of the Prisons Act (the Department) is under a duty to ensure that medical care and treatment is provided to the appellant in prison. Secondly, a medical officer is bound, on the request of the chief executive officer, to examine and treat the appellant if he requires medical care and treatment. Thirdly, the chief executive officer is empowered to give written permission for the appellant to be absent from prison for a period specified, and for a reason described, in an absence permit. An absence permit may be given by the chief executive officer for the appellant to be admitted to the Frankland Centre at Graylands Hospital or to any other authorised hospital for the purpose of the treatment of his psychiatric illness. Fourthly, if the chief executive officer were to give an absence permit in relation to the appellant, the chief executive officer may give the permit subject to conditions or restrictions for the purpose of protecting the safety and interests of the public.

24 The primary sentencing considerations for offences of the kind committed by the appellant are appropriate punishment of the offender and personal and general deterrence, having regard to the need to protect vulnerable children: LFG v The State of Western Australia [395].

25 There is no tariff for offences of the kind committed by the appellant, nor indeed for sex offences generally, because of the great variation that is possible in the circumstances of the offending and the offenders. Nevertheless, in considering whether there has been an infringement of the totality principle, it is relevant to examine comparative cases. The purpose of such an examination is to provide a yardstick with the object of achieving broad consistency in sentencing, both as to outcome and the application of relevant sentencing principles. However, care must be taken in considering sentences imposed in other cases. The range of sentences imposed in previous cases does not fix the range of an appropriate exercise of the sentencing discretion: Hili v The Queen [2010] HCA 45; (2010) 242 CLR 520 [53] and The Queen v Kilic [2016] HCA 48 [22]. Ultimately, what is important is that each case is decided upon its own facts and circumstances.

Disposition of the proposed grounds of appeal

26 The proposed grounds of appeal may be considered together. Without question, the appellant's offending against A was very serious. His Honour was correct to characterise the appellant's culpability as being 'at the higher end of the scale of seriousness'. As his Honour observed, the appellant took advantage of the relationship that he had with A's parents to gain access to him. Having done so, he proceeded to abuse the trust that had been reposed in him. The appellant's offending was sustained and repetitive. He first groomed A and then engaged in conduct which culminated in the commission of counts 12 and 13, both of which had added elements of perversion. The appellant's conduct has had a profound impact upon A's life. While the offending did not involve threats, physical coercion or acts of violence, the absence of these factors only shows that the offending could have been worse. It does not diminish the seriousness of what the appellant actually did to A.

27 The most significant mitigating factor was the appellant's pleas of guilty, for which the maximum discount under s 9AA of the Sentencing Act was given. While the appellant has a number of health issues consistent with his age, there is nothing to suggest that they cannot be managed properly within the prison system.

28 Although personal deterrence was not a matter of significance in this case, general deterrence remained important. As with intrafamilial sexual offending, it is not uncommon for sexual offending committed by trusted family friends to remain a secret for a long time. Often, offenders get on with their lives without adverse consequences. However, for victims, like A, the story is often altogether different. Those who offend in this way must realise that their wrongdoing can lead to long terms of imprisonment even when they are old.

29 In addition to the cases cited by the appellant, we have had regard to such cases as RNN v The State of Western Australia [2010] WASCA 26; The State of Western Australia v Prince [2011] WASCA 22; The State of Western Australia v FJG [2012] WASCA 206; ERA v The State of Western Australia [2013] WASCA 163; GHK v The State of Western Australia [2014] WASCA 19; (2014) 238 A Crim R 178; Hughes v The State of Western Australia [2014] WASCA 78; The State of Western Australia v PJW [2015] WASCA 113 and NHT v The State of Western Australia [2016] WASCA 167. It is unnecessary to describe the facts and circumstances of each of these cases. It is sufficient to say that we have not been persuaded that, when the present case is compared to these cases, the outcome is inconsistent.

30 The appellant's advanced age is plainly a relevant sentencing factor and was taken into account by his Honour. While there was no evidence before the primary judge or in this court as to the appellant's life expectancy, there is a real possibility that the appellant will die in prison. However, when weighed against the seriousness of the offending and the need to provide general deterrence, this factor does not justify the imposition of a lesser total effective sentence.

31 Having regard to all relevant circumstances, it cannot reasonably be said that the total effective sentence imposed upon the appellant infringed either limb of the totality principle. Leave to appeal must be refused on each ground of appeal.

32 The orders that we would make are:

1. Leave to appeal is refused on each ground of appeal.

2. The appeal is dismissed.