Walters v The State of Western Australia

[2018] WASCA 3

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT :   THE COURT OF APPEAL (WA)

CITATION:   WALTERS -v- THE STATE OF WESTERN AUSTRALIA [2018] WASCA 3

CORAM:   MAZZA JA

BEECH JA
CHANEY J

HEARD:   14 DECEMBER 2017

DELIVERED          :   9 JANUARY 2018

FILE NO/S:   CACR 66 of 2017

BETWEEN:   ROBERT WALTERS

Appellant

AND

THE STATE OF WESTERN AUSTRALIA
Respondent

ON APPEAL FROM:

Jurisdiction              :  DISTRICT COURT OF WESTERN AUSTRALIA

Coram  :PETRUSA DCJ

File No  :IND DER 29 of 2016

Catchwords:

Criminal law - Appeal - Sentencing - First and second limbs of the totality principle - Relevance of advanced age and age-related illness - Sexual offences against a child over 13 and under 16 years - Pregnancy and birth of a child resulted

Legislation:

Nil

Result:

Leave to appeal on ground 1 refused
Appeal dismissed

Category:    B

Representation:

Counsel:

Appellant:     Ms N R Sinton

Respondent:     Mr J A Scholz

Solicitors:

Appellant:     Legal Aid (WA)

Respondent:     Director of Public Prosecutions (WA)

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

FGC v The State of Western Australia [2008] WASCA 47; (2008) 183 A Crim R 313

Greenland v The State of Western Australia [2017] WASCA 83

Gulyas v The State of Western Australia [2007] WASCA 263; (2007) 178 A Crim R 539

JAF v The State of Western Australia [2008] WASCA 231; (2008) 190 A Crim R 124

Tapper v The State of Western Australia [2016] WASCA 140

The State of Western Australia v FJG [2012] WASCA 206

The State of Western Australia v PJW [2015] WASCA 113

1. JUDGMENT OF THE COURT:    This is an appeal against sentence.

2. The appellant was charged on indictment in the District Court with two offences contrary to s 321(2) of the Criminal Code (WA). As amended, the appellant was charged that:[1]

   (1)On a date unknown between 11 June 1998 and about 7 January 2000 at Derby [the appellant] sexually penetrated [the victim] a child of or over the age of 13 years and under the age of 16 years by penetrating her vagina.

   (2)On a date unknown between 11 June 1998 and about 7 January 2000 at Derby [the appellant] sexually penetrated [the victim] a child of or over the age of 13 years and under the age of 16 years by penetrating her vagina with his penis.

   [1] Appeal book, 26, 31.

3. On 13 February 2017, the appellant, who by then was aged 86 years of age, pleaded guilty to these offences and was duly convicted of them.  The pleas were entered at the first reasonable opportunity.  Petrusa DCJ sentenced the appellant on count 1 to 1 year 6 months' immediate imprisonment (reduced from 2 years for totality) and, on count 2, to 3 years' immediate imprisonment.  She ordered that the sentences be served cumulatively.  Thus, the total effective sentence she imposed was 4 years 6 months' immediate imprisonment.  The appellant was made eligible for parole and the sentence was backdated to commence on 22 January 2017.[2]

   [2] ts 14.

4. The appellant does not challenge the individual sentences.  The two grounds of appeal focus upon the length of the total effective sentence.  In substance, ground 1 alleges that the sentence infringes the first limb of the totality principle, while ground 2 alleges that the sentence infringes the second limb of that principle.[3]  Leave to appeal has been granted on ground 2, while the question of leave to appeal on ground 1 was referred to the hearing of the appeal.[4]

   [3] Appeal book, 7.

   [4] Order of Mazza JA, 19 May 2017; appeal book, 4.

5. For the reasons that follow, we are of the view that neither ground has been made out and that the appeal should be dismissed.

The facts of the offending

1. The facts of the appellant's offending are, in summary, as follows.[5]

   [5] This summary is taken mostly from ts 4 ‑ 5.

2. The victim is an indigenous female who, at all relevant times, was between the ages of 13 and 14 years of age.  She was vulnerable to the predations of the appellant by reason of her young age and her social circumstances.  The appellant was almost 70 years old.  On a number of occasions between 11 June 1998 and about 7 January 2000, the victim attended at the appellant's home in Derby, where she engaged in sexual behaviour with the appellant in exchange for money.  It is accepted by the appellant that the offences were committed against the background that he had, on other occasions, paid the victim for sexual favours.  In other words, the offences were not isolated.

3. In respect of count 1, the State initially alleged that the appellant strapped on a rubber dildo and inserted it into the victim's vagina.  The appellant disputed that he penetrated the victim with a dildo, but accepted that he penetrated her with his penis.  In the end, the appellant was sentenced on the basis that count 1 was constituted by a penile penetration of the victim's vagina.  When the appellant had finished penetrating the victim, he provided her with money, and she left his house. 

4. In respect of count 2, on another occasion the appellant inserted his penis into the victim's vagina and engaged in unprotected sexual intercourse with her to ejaculation.  When the appellant finished, he again paid her money.  About nine months later, on 7 October 2000, the victim gave birth to a son.  She was, at the time her baby was born, 15 years of age.

5. In about 2014, an issue arose concerning the identity of the child's father.  A DNA test confirmed that the appellant was the father.

6. On 13 July 2016, the appellant was interviewed by the police.  In the course of that interview he admitted having sexual intercourse with the victim and ejaculating inside her.  He was asked how old he thought the victim was, to which he replied:[6]

   I just - I just thought she was just the same age as the others, you know.

   He went on to say that he was not aware of the victim's age.  The appellant was sentenced on the basis that, while he did not positively know the victim's age, he was careless as to that fact.

   [6] ts 5.

The appellant's personal circumstances

1. The appellant was born in early 1931.  He grew up, in part, during the Great Depression.  He left school in grade 6.  He was gainfully employed from that time until his 70s in a variety of occupations, including in businesses he owned.  For a good deal of his adult life he has lived and worked in the Kimberley.  In that time, as her Honour put it, the appellant has 'had a lot to do', in a positive sense, with indigenous people.  At the time he was sentenced, the appellant was the primary caregiver for an indigenous man with a physical disability, who was aged about 20.

2. The appellant has five children.

3. The appellant has a criminal history.  The most serious offence he committed was an offence of cattle stealing in 1993, for which he was sentenced to 2 years' immediate imprisonment.  He has no record of committing sexual offences. 

The appellant's relevant medical history

1. The medical evidence provided to the court was sparse.  A medical certificate revealed that the appellant has suffered from broken bones, and that he has prostate cancer.  There is no suggestion that the prostate cancer is a serious threat to his immediate health, and the sentencing judge was provided with no information as to its prognosis.  In his police interview, it was pointed out that the appellant has some hearing loss and wears hearing aids.  This court was told that the appellant walks with the aid of a stick.  In all, there is nothing which shows that the appellant's health is atypical for a man of his advanced years and that he cannot be properly cared for in prison.

The sentencing remarks

1. The appellant took no issue with anything said by her Honour in her sentencing remarks.  The remarks concisely dealt with all relevant facts and sentencing considerations.

2. Her Honour took into account as mitigating factors:

   1.The appellant's pleas of guilty for which a reduction of 25% was given pursuant to s 9AA of the Sentencing Act 1995 (WA).

   2.The appellant's advanced age and state of health.

   3.Although it could not be said that the appellant had the advantage of good character, his prior criminal history did not include any sexual offending.

   4.The appellant's admissions to the police.

3. Her Honour identified the following aggravating factors:

   1.The victim was young and vulnerable.

   2.The appellant exploited the victim, having regard to the fact that the appellant paid the victim money in return for sexual services.

   3.The appellant sexually offended against the victim on more than one occasion, meaning this was not an isolated event.

   4.In respect of count 2, the appellant engaged in unprotected sexual intercourse with the victim, as a result of which the victim became pregnant and gave birth at the age of 15.

   5.There was a very considerable age gap between the appellant and the victim.

   6.The adverse impact of the offending, particularly count 2, has been significant for the victim.

Appellate sentencing principles

1. The proposed grounds of appeal assert an inferred error.  The general principles governing appeals of this nature are well established.  This court can intervene only if the appellant demonstrates that the end result is so unreasonable or unjust that we conclude that a substantial wrong has occurred.  In other words, this court cannot substitute its own opinion for that of the sentencing court merely because we would have exercised the sentencing discretion differently. 

2. The totality principle has two limbs.  The first limb requires that the total effective sentence imposed on an offender who has committed multiple offences bears a proper relationship to the overall criminality involved in all of the offences, viewed in their entirety and having regard to all relevant facts and circumstances including those referable to the offender personally. 

3. The second limb of the totality principle requires that the total effective sentence not be crushing, in the sense that it should not destroy any reasonable expectation of a useful life after release.  This limb is not an absolute principle.  There will be cases where an offender's offending is so serious that he or she has forfeited the right to any expectation of being released from prison at a time which would permit them some useful period of life left over to enjoy.[7]

   [7] Gulyas v The State of Western Australia [2007] WASCA 263; (2007) 178 A Crim R 539 [49].

Consideration of the grounds

1. The two grounds may be dealt with together as they allege an infringement of one or other limb of the totality principle.  The issue at the heart of the grounds is the effect of the appellant's advanced age on the total effective sentence.  In essence, it is the appellant's contention that, having regard to this fact, the total effective sentence was too long, either because it did not appropriately reflect the appellant's overall criminality (first limb) or it was crushing (second limb).  With respect to the second limb, the appellant's counsel pointed out that if the total effective sentence stands, the appellant will be approximately 88 years of age when he is first eligible for release on parole and if he serves the whole of the sentence, he will be 90 years old upon his release from prison.  Counsel also pointed out that the offences were committed approximately 16 years before the appellant was charged and that the appellant had not committed any further offence of a like nature in that time.

2. We accept that advanced age is relevant to the consideration of both limbs of the totality principle.  It is a matter referable to the offender personally, which must be considered, when it is alleged that the first limb of the totality principle has been infringed.  In respect of the second limb, the rationale is that each year of the sentence represents a substantial portion of the life that remains to be lived by the offender.  However, whether and to what extent advanced age mitigates depends upon the particular facts and circumstances of the case being considered.  It may be, having regard to the seriousness of the offending, that advanced age can be given little or no mitigatory weight.

3. Because of the need to protect vulnerable children, the primary sentencing considerations for offences of the type committed by the appellant are punishment of the offender and personal and general deterrence.[8]  As a result, matters personal to an offender will ordinarily carry less weight.  Her Honour sentenced the appellant according to these principles, although by reason of the appellant's age, she found that personal deterrence had no real role to play in the case. 

   [8] See The State of Western Australia v PJW [2015] WASCA 113 [34] (Buss JA) and the citations therein.

4. The maximum penalty for the offences is 14 years' imprisonment.[9]  Each offence was a serious example of its type.  The victim, who was vulnerable for the reasons stated earlier, was exploited by the appellant purely for his sexual gratification.  In effect, the appellant prostituted a vulnerable child.

   [9] See s 321(7)(a).

5. Count 2 was particularly egregious because, as a consequence, the victim became pregnant.  As her victim impact statement made clear, being a mother at the age of 15 has had a devastating effect upon her, as has the offending as a whole.  The adverse consequences of the offences continue to mar the victim's life.

6. There is no tariff for offending of this kind and, although the parties cited a number of cases, including Greenland v The State of Western Australia;[10] Tapper v The State of Western Australia;[11] JAF v The State of Western Australia[12] and FGC v The State of Western Australia,[13] it was accepted at the hearing that none of them was truly comparable.  It is therefore unnecessary to analyse them. 

   [10] Greenland v The State of Western Australia [2017] WASCA 83.

   [11] Tapper v The State of Western Australia [2016] WASCA 140.

   [12] JAF v The State of Western Australia [2008] WASCA 231; (2008) 190 A Crim R 124.

   [13] FGC v The State of Western Australia [2008] WASCA 47; (2008) 183 A Crim R 313.

7. The mitigating factors were those recognised by the sentencing judge, including the pleas of guilty, the appellant's advanced age and his health.  In this appeal it was not suggested that her Honour failed to take them into account.  As to the appellant's health, as we have said, it was not given any particular emphasis in this case.  The conditions that the appellant suffers from are all typical for his age and do not appear to be immediately life‑threatening.  There was no evidence at first instance, nor before this court, that they cannot be properly treated in prison or that they make his incarceration more onerous. 

8. It was suggested in the appellant's written submissions that this court should regard the two offences as being discrete but isolated incidents.[14]  This submission was expressly not pursued at the hearing of the appeal.[15]  While the two offences were separate, they were not isolated offences.  Cumulative sentences were appropriate.

   [14] Appellant's submissions, par 13.

   [15] Appeal ts 5.

9. We acknowledge the gap of approximately 16 years from the time the appellant committed the offences to his being charged.  We do not regard this as a matter of significance in this case.  In The State of Western Australia v FJG,[16] Mazza JA observed:

   It is not uncommon in cases of serious intra-familial sexual offending for it to remain a secret for a long time.  Often the offenders have gone on with their lives in a way which has not adversely affected them.  Frequently for the victims, the story is 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 and believe that what was in the past will stay there.

   [16] The State of Western Australia v FJG [2012] WASCA 206 [71].

10. Although this is not a case of intrafamilial sexual offending, what was said in that case applies with equal force to this case.

11. Having regard to the very serious nature of the offences and all of the relevant facts and circumstances, we have not been persuaded that the total effective sentence infringed either limb of the totality principle.  This is one of those cases where the appellant's offending was so serious that it would be inappropriate to interfere with the total effective sentence imposed, despite the appellant's advanced age and notwithstanding that it is possible that the appellant may die in gaol or that, whenever he is released, he may have no prospects of enjoying some useful life that remains to him. 

12. Neither ground of appeal has been made out and ground 1 does not have sufficient merit to warrant a grant of leave.  The orders we would make are:

    1.Leave to appeal on ground 1 is refused.

    2.The appeal is dismissed.