Whalley v The State of Western Australia
[2005] WASCA 213
•20 OCTOBER 2005
WHALLEY -v- THE STATE OF WESTERN AUSTRALIA [2005] WASCA 213
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2005] WASCA 213 | |
| THE COURT OF APPEAL (WA) | |||
| Case No: | CACR:66/2005 | 20 OCTOBER 2005 | |
| Coram: | MALCOLM CJ PULLIN JA MURRAY AJA | 20/10/05 | |
| 5 | Judgment Part: | 1 of 1 | |
| Result: | Application for leave to appeal dismissed | ||
| B | |||
| PDF Version |
| Parties: | ALAN WHALLEY THE STATE OF WESTERN AUSTRALIA |
Catchwords: | Appeal Criminal law Application for leave to appeal against sentence Whether inadequate account taken of plea of guilty Whether infringement of totality principle Turns on own facts |
Legislation: | Nil |
Case References: | Miles v The Queen (1997) 17 WAR 518 Nelson v The Queen, unreported, CCA SCt of WA; Library No 950376; 1 June 1995 Postiglione v The Queen (1997) 198 CLR 295 Verschuren v The Queen (1996) 17 WAR 667 Woods v The Queen (1994) 14 WAR 341 Nil |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : WHALLEY -v- THE STATE OF WESTERN AUSTRALIA [2005] WASCA 213 CORAM : MALCOLM CJ
- PULLIN JA
MURRAY AJA
- Applicant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram : H H JACKSON DCJ
File No : IND 1577 of 2004
Catchwords:
Appeal - Criminal law - Application for leave to appeal against sentence - Whether inadequate account taken of plea of guilty - Whether infringement of totality principle - Turns on own facts
(Page 2)
Legislation:
Nil
Result:
Application for leave to appeal dismissed
Category: B
Representation:
Counsel:
Applicant : Mr J I Brash
Respondent : Mr M Mischin
Solicitors:
Applicant : Legal Aid of Western Australia
Respondent : State Director of Public Prosecutions
Case(s) referred to in judgment(s):
Miles v The Queen (1997) 17 WAR 518
Nelson v The Queen, unreported, CCA SCt of WA; Library No 950376; 1 June 1995
Postiglione v The Queen (1997) 198 CLR 295
Verschuren v The Queen (1996) 17 WAR 667
Woods v The Queen (1994) 14 WAR 341
Case(s) also cited:
Nil
(Page 3)
1 MALCOLM CJ: I agree with the reasons which are to be published by Pullin JA and have nothing to add.
2 PULLIN JA: The applicant applies for leave to appeal against the sentences imposed by H H Jackson DCJ on 8 April 2005. The applicant pleaded guilty to the offences set out in the indictment, being three counts of sexual penetration of a child aged 13 and two counts of indecent dealing with the same child. He was sentenced to 4 years' imprisonment in relation to the first count of penetration and 1 year each in relation to the indecent dealing charges, which sentences were made concurrent with the first penetration charge. He was sentenced to 2 years' imprisonment on the other two penetration charges, each sentence being concurrent with each other but cumulative on the sentence for count 1. The applicant was made eligible for parole.
3 The facts are set out in the sentencing Judge's remarks. His Honour made two pertinent points in relation to sentencing considerations - first that the offences occurred when the victim's mother, who was living in a de facto relationship with the applicant, went overseas, leaving the applicant to care for the victim and her siblings and, secondly, that the applicant was 51 years old at the time of the offences.
4 The applicant seeks leave to appeal on the grounds set out in the amended grounds of appeal which are:
"1. The Learned Sentencing Judge erred at law by imposing a sentence in relation to the charge of sexually penetrating a child between the age of 13 and 16 with his penis, that was manifestly excessive.
PARTICULARS
- The Learned Sentencing Judge failed to give sufficient discount in the sentence to take into account the following:
a. The Appellant's early pea of guilty,
b. The Appellant's admissions and co-operation with police,
2. The Learned Sentencing Judge erred at law by failing to give sufficient weight to the 'totality principle', when considering the total effect of the sentences."
(Page 4)
5 The applicant contends that a sufficient discount was not given for the early plea of guilty. In my opinion, the applicant has not demonstrated that to be so. The sentencing Judge said that he took the early plea of guilty into account and, as will appear from what I say later, it can be demonstrated that the sentencing judge must have allowed an appropriate discount for the plea of guilty. The range of discounts for a plea of guilty is discussed in various cases. See, for example, Miles v The Queen (1997) 17 WAR 518 and Verschuren v The Queen (1996) 17 WAR 667.
6 The applicant's cooperation and admissions to the police are relevant facts, but they finally manifest themselves in the plea of guilty which attracts a discount to the sentence which would otherwise have been imposed. As the applicant points out, it was not unusual, under the law before the 2003 amendments to the Sentencing Act 1995 (WA), for courts to impose a sentence of between 6 and 8 years for a single act of assault by penile penetration where the circumstance of aggravation was that the complainant was under the age of 16. See Woods v The Queen (1994) 14 WAR 341 and Nelson v The Queen, unreported, CCA SCt of WA; Library No 950376; 1 June 1995. That would convert under the present Sentencing Act to a sentence of somewhere between 4 years and about 5 years and 4 months' imprisonment.
7 In this case, the added aggravating features were the disparity in age between the applicant and the victim, the fact that applicant was acting as guardian and was therefore supposed to be looking after the welfare of the victim, the time at which the offences occurred and that the offence was one of a series. The adverse ongoing effect of the applicant's conduct is reflected in the victim impact statement.
8 If the sentencing Judge had commenced his reasoning by taking the top of the range mentioned in Wood's case and had given a 25 per cent discount for the guilty plea, then the four-year sentence in relation to count 1 reflects no error. In my opinion, the sentence in relation to count 1 is not manifestly excessive.
9 Ground 2 refers to the totality principle. The totality principle has a dual aspect. The first is to require a sentencing Judge who passes a series of sentences to consider whether the aggregate sentence is just and appropriate and a reflection of the culpability of the offender. The second is to ensure that the effect of the aggregate sentence is not to impose a crushing sentence, not in keeping with the record and prospects of the offender. In other words, the sentence must not be one which would not
(Page 5)
- hold out a proper measure of hope for and encouragement to rehabilitation and reform of the offender. See Postiglione v The Queen (1997) 198 CLR 295.
10 The method of setting an appropriate aggregate sentence is achieved by employing a combination of concurrency and cumulation. In this case, the sentencing Judge did that by making the concurrency and cumulation orders referred to already. By this ground the applicant contends that the aggregate sentence of six years was excessive. He argues this by starting with the fact that the sentence would have been 12 years under the pre-2003 sentencing regime if there had been no plea of guilty. It is then submitted that such a sentence would have been excessive and would not have reflected the criminality of what was involved in these offences. I see no value in examining a sentence under the old sentencing regime in a case where there had been no plea of guilty.
11 In my opinion, the aggregate sentence of 6 years which was imposed was not manifestly excessive, and properly reflected the criminality of these offences, which occurred over a period of time between 2 May 1998 and 29 June 1998, showing that after the first offence the applicant continued to take advantage of the victim while the victim's mother was away. For those reasons, I would dismiss the application for leave to appeal.
12 MURRAY AJA: I agree and I have nothing to add.
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