WNO v The State of Western Australia
[2021] WASCA 141
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: WNO -v- THE STATE OF WESTERN AUSTRALIA [2021] WASCA 141
CORAM: BUSS P
MAZZA JA
HEARD: 2 AUGUST 2021
DELIVERED : 12 AUGUST 2021
FILE NO/S: CACR 42 of 2021
BETWEEN: WNO
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram: MACLEAN DCJ
File Number : IND 2096 of 2019
Catchwords:
Criminal law - Application for extension of time to appeal - Application for leave to appeal against sentence - Appellant convicted of nine counts of indecently dealing with his niece, a child aged between 13 and 16 years old, contrary to s 321(4) of the Criminal Code (WA), and three counts of sexually penetrating his niece, a child aged between 13 and 16 years old, contrary to s 321(2) of the Criminal Code (WA) - Whether the total effective sentence of 6 years 9 months' imprisonment infringed the first limb of the totality principle
Legislation:
Criminal Code (WA), s 321(2), s 321(4), s 321(7)(a), s 321(8)(a)
Result:
Leave to appeal refused
Appeal dismissed
Representation:
Counsel:
| Appellant | : | T R Stephenson |
| Respondent | : | No appearance |
Solicitors:
| Appellant | : | T R Stephenson |
| Respondent | : | Director of Public Prosecutions (WA) |
Case(s) referred to in decision(s):
JDF v The State of Western Australia [2016] WASCA 221
LFG v The State of Western Australia [2015] WASCA 88; (2015) 250 A Crim R 252
JUDGMENT OF THE COURT:
The appellant seeks leave to appeal against a total effective sentence of 6 years 9 months' imprisonment imposed after he was found guilty by a jury of 12 sexual offences against his niece, who was, at the relevant time, 14 years old. The appeal was filed about 3 weeks out of time. In view of this short delay, we would grant an extension of time.
The appellant relies on a single ground of appeal which alleges, in substance, that the total effective sentence infringed the first limb of the totality principle. For the reasons that follow, the ground has no reasonable prospect of succeeding. Leave to appeal should be refused and the appeal must be dismissed.
The charges
The appellant was charged on indictment in the District Court with 12 offences, all of which were alleged to have occurred during a five‑day period between 5 October 2018 and 10 October 2018, in four suburbs of Perth. The victim, who we will describe as J, was, at the time of the commission of the offences, approximately 14 years and 11 months old.
The indictment alleged nine counts of indecently dealing with J, a child of or over the age of 13 years and under the age of 16 years (counts 1, 2, 4, 5, 6, 8, 9, 10 and 12), and three counts of sexually penetrating J, a child of or over the age of 13 years and under the age of 16 years (counts 3, 7 and 11).
On 18 March 2021, Maclean DCJ imposed the following individual sentences:
| Count 1 | On 5 October 2018 at Swan View, the appellant indecently dealt with J, a child of or over the age of 13 years and under the age of 16 years by kissing her on the lips. | 6 months' immediate imprisonment | Concurrent |
| Count 2 | On 5 October 2018 at Caversham, the appellant indecently dealt with J, a child of or over the age of 13 years and under the age of 16 years, by kissing her on the lips. | 6 months' immediate imprisonment | Concurrent |
| Count 3 | On 5 October 2018 at Caversham, the appellant sexually penetrated J, a child of or over the age of 13 years and under the age of 16 years, by penetrating her vagina with his fingers. | 3 years' immediate imprisonment | Head sentence |
| Count 4 | On 6 October 2018 at Caversham, the appellant indecently dealt with J, a child of or over the age of 13 years and under the age of 16 years, by kissing her on the lips. | 6 months' immediate imprisonment | Concurrent |
| Count 5 | On 6 October 2018 at Caversham, the appellant indecently dealt with J, a child of or over the age of 13 years and under the age of 16 years, by kissing her on the lips. | 6 months' immediate imprisonment | Concurrent |
| Count 6 | On 6 October 2018 at Midland, the appellant indecently dealt with J, a child of or over the age of 13 years and under the age of 16 years, by touching her breasts. | 9 months' immediate imprisonment | Cumulative |
| Count 7 | On 7 October 2018 at Caversham, the appellant sexually penetrated J, a child of or over the age of 13 years and under the age of 16 years, by penetrating her vagina with his fingers. | 2 years' immediate imprisonment (reduced from 3 years' immediate imprisonment for totality) | Cumulative |
| Count 8 | On 9 October 2018 at Aubin Grove, the appellant indecently dealt with J, a child of or over the age of 13 years and under the age of 16 years, by kissing her on the lips. | 9 months' immediate imprisonment | Concurrent |
| Count 9 | On 9 October 2018 at Aubin Grove, the appellant indecently dealt with J, a child of or over the age of 13 years and under the age of 16 years, by touching her breasts. | 9 months' immediate imprisonment | Concurrent |
| Count 10 | On 9 October 2018 at Aubin Grove, the appellant indecently dealt with J, a child of or over the age of 13 years and under the age of 16 years, by kissing her on the lips. | 6 months' immediate imprisonment (reduced from 9 months' immediate imprisonment for totality) | Cumulative |
| Count 11 | On 10 October 2018 at Caversham, the appellant sexually penetrated J, a child of or over the age of 13 years and under the age of 16 years, by penetrating her vagina with his fingers. | 6 months' immediate imprisonment (reduced from 3 years' immediate imprisonment for totality) | Cumulative |
| Count 12 | On 10 October 2018 at Caversham, the appellant indecently dealt with J, a child of or over the age of 13 years and under the age of 16 years, by masturbating in her presence. | 18 months' immediate imprisonment | Concurrent |
As can be seen from the table above, the total effective sentence imposed upon the appellant was 6 years 9 months' imprisonment. The appellant was made eligible for parole and the sentence was backdated to commence on 4 September 2020.
The facts
By the time of the appellant's sentencing, there was no real dispute as to the facts of the offending. In large part, the sentencing judge accepted the summary of facts in the appellant's written sentencing submissions.[1] The facts may be summarised as follows.[2]
[1] Sentencing ts 2.
[2] Sentencing ts 2 - 5.
At the material time, the appellant was 27 years of age. He lived with his stepfather in a Perth suburb. J lived with her parents and siblings in a nearby suburb. Being the victim's paternal uncle, the appellant was well‑known to her.
On 4 October 2018, J's parents flew from Perth to Bali for a week‑long holiday. J and her 17 -year‑old brother stayed at the family home by themselves. J's five younger siblings stayed at different houses with relatives.
At the time of the offending, the appellant was using methylamphetamine on a daily basis.[3]
[3] Sentencing ts 2.
On the morning of 5 October 2018, the appellant rang J and asked her if she wanted to go out with him. She declined. The appellant got upset by this refusal and asked if she wanted to come over to his house instead. J again declined and said that she had to stay at home with her brother. The appellant became upset. The appellant travelled to J's house and, upon entering, began yelling at her. He then apologised and asked J if she wanted to go to some nearby shops with him. J agreed. As they drove to the shops, the appellant pulled his vehicle over, pulled J closer to him, then held her tightly and kissed her on the lips. As he did so, he put his hand inside her pants and touched her buttocks (count 1). Later that day, when the appellant and J were in the appellant's vehicle, parked at J's house, the appellant pulled her onto his lap and asked her to give him 'a proper kiss', to which J said, 'No'.[4] The appellant responded, 'Yes, we're together', and then kissed J on the lips (count 2).
[4] Sentencing ts 3.
Later, on the evening of 5 October 2018, the appellant drove to J's house again, bringing a movie with him. The appellant entered J's bedroom, shut and locked the door, and put the movie on. The appellant then lay next to J on her bed. J told him that he was not meant to be in her bedroom. J then attempted to leave the room, but, before she could, the appellant grabbed her, pulled her onto the bed, put his hand under her pyjama top and squeezed her breast. He then put his hand down her pyjama pants and, with two fingers, rubbed the outside and inside of J's vagina (count 3).
On the morning of 6 October 2018, after sleeping the night in J's bedroom, the appellant went outside. He then called for J to join him there. J came outside and, while they were standing on the driveway, the appellant gave her a hug and a kiss on the lips. In response, J wiped her lips. The appellant told her not to do that and kissed her again. The appellant then left J's house (count 4). Later that day, J left her house and walked towards some shops. The appellant came across her and stopped to talk with her. He grabbed J, pulled her close and kissed her on the lips (count 5).
Following this incident, they drove to a local shopping centre. While at the shops, the appellant held J's hand and behaved as if they were in an intimate relationship, rather than an uncle and his niece. After doing some shopping, the appellant drove J to her home. While doing so, the appellant squeezed one of J's breasts over her clothing (count 6).
On the evening of 7 October 2018, the appellant put on a movie in J's bedroom and closed the door. During the movie, the appellant squeezed J's breasts under her bra, put his hand down her underwear, touched the top of her vagina and then placed his fingers inside her vagina (count 7).
On the morning of 9 October 2018, the appellant returned to J's house. He told J that she was not going to school that day. J ignored him and continued to get ready for school. The appellant walked into J's bedroom and screamed that she was not going to school. He then slapped her hard across the cheek. The appellant continued to prevent J from going to school. By 9.00 am, J gave up attempting to go to school and changed out of her uniform. The appellant then drove J to another family member's house and, on the way, held her hand and kissed her again on the lips (count 8). On the way back from the family member's house, the appellant again hugged and kissed J in the car and, on one occasion, touched her breasts (count 9). Back at J's house, in the driveway, the appellant gave J another kiss on the lips, while holding her around the waist (count 10).
On 10 October 2018, the appellant picked up J while she was walking home from school and took her to her home. That night, the appellant again stayed in J's bedroom. While lying on J's bed, the appellant squeezed her breasts on top of her bra. He then put his hand underneath J's pants, but over her underwear, and pushed his fingers inside her vagina as far as he could. J told him to stop and she pulled his hand out of her pants (count 11). Later that night, J woke up to find the appellant still next to her in her bed. The appellant had his hand on J's buttocks and was masturbating at the same time (count 12).
J disclosed the offending on or about 12 October 2018 as a result of inquiries made at her school about why she had been absent earlier in the week.[5]
[5] Sentencing ts 5.
Although not the subject of charges, the appellant had, on previous occasions, in particular in 2016, slept in J's bed and touched her 'on her boobs, her bum and her vagina'.[6]
[6] Sentencing ts 13.
The appellant's personal circumstances
At the time the appellant was sentenced, he was 29 years of age. His upbringing was marked by a degree of deprivation and disadvantage.[7] He was very close to his mother and was grief‑stricken by her death.
[7] Sentencing ts 10.
The appellant left school after year 9. After leaving school he worked in IT with his older brother and has prospects of further employment with him upon his release from prison. The appellant has a prior criminal history, including for offences of stealing, being armed or pretending to be armed to cause fear, possession of cannabis, criminal damage and a small number of road traffic offences. For all of this offending, he has been dealt with in the Magistrates Court and fined. He has no prior convictions of a sexual nature.
The sentencing remarks
It is unnecessary to repeat his Honour's description of the facts of the offending and the appellant's personal circumstances.
His Honour found that the appellant's offending was, to a degree, premeditated.[8] He also found that the offending was persistent, and the various acts were committed without J's consent.[9] He characterised the appellant's offending behaviour as 'overbearing and oppressive conduct' and 'a gross breach of trust'.[10]
[8] Sentencing ts 2.
[9] Sentencing ts 6.
[10] Sentencing ts 6 - 7.
His Honour accepted that J was particularly vulnerable because her parents were overseas and because of the limited ability of her grandfather to travel to her house to check on her welfare.[11]
[11] Sentencing ts 8.
His Honour accepted that the offending had had a profound and adverse effect upon J, as borne out by her victim impact statement.[12]
[12] Sentencing ts 8 - 9.
His Honour found that while the appellant had expressed some contrition for what he had done, he was not truly remorseful for his criminal conduct.[13] He observed that the appellant did not have the mitigation of youth or prior good character.[14] His Honour acknowledged that the appellant was a user of methylamphetamine during the relevant period, but (correctly) stated that the appellant's methylamphetamine use was not a mitigating factor.[15]
[13] Sentencing ts 11.
[14] Sentencing ts 10.
[15] Sentencing ts 10.
In addressing the appellant's risk of reoffending, his Honour said that the degree of risk depends upon his methylamphetamine use in the future.[16]
[16] Sentencing ts 14.
His Honour concluded that the appellant's offending was so serious that no penalty other than immediate imprisonment was appropriate. In coming to this conclusion, he noted that the offending was 'serious and sustained' over a period of five days, and involved some violence.[17] He observed:[18]
The offences commenced very shortly after the victim's parents left, and they persisted until they returned. Each offence involved a breach of trust against a completely defenceless child. Her only oversight was potentially from her brother and her grandfather and, again, neither of those people, and I mean no disrespect to them, were really capable of providing care. …
You did use your status in the family … to advance your offending. Your offending was persistent. You were relentless, even though the victim did what she did to demonstrate that your attention was not welcome. You were prepared, as I said, to use force to assert your own wishes over her and demonstrated an entire disregard for her.
[17] Sentencing ts 14.
[18] Sentencing ts 15.
After imposing individual sentences for each of the 12 counts, his Honour took into account totality and made the reductions referred to in the table set out at [5] above.
The appellant's submissions
The appellant submitted that there was no discernible difference between the seriousness of counts 1, 2, 4, 5 and 6, which he said were the subject of sentences of 6 months' immediate imprisonment (in fact, on count 6, the appellant was sentenced to 9 months' immediate imprisonment), and counts 8, 9 and 10, which attracted sentences of 9 months' immediate imprisonment before adjustments for totality. The appellant contended that the sentences on counts 9 and 10 'appear to exceed an appropriate range of sentences for the criminal conduct involved and are therefore erroneous'.[19] The appellant argued that as the sentencing judge's discretion miscarried in respect of one component of the total effective sentence, the whole of the sentencing decision must be set aside and the offender resentenced.
[19] Appellant's case 8 [36].
The appellant also drew attention to the outcomes in two cases decided by this court: JDF v The State of Western Australia[20] and LFG v The State of Western Australia.[21] It was submitted that the outcomes are 'pointers' to implied error in the present case.[22]
[20] JDF v The State of Western Australia [2016] WASCA 221.
[21] LFG v The State of Western Australia [2015] WASCA 88; (2015) 250 A Crim R 252.
[22] Appellant's case 10 - 11 [50] - [55].
Ground of appeal - disposition
The maximum penalty for the offence of indecently dealing with a child of or over the age of 13 years and under the age of 16 years, is 7 years' imprisonment (see s 321(4), read with s 321(8)(a) of the Criminal Code (WA) (the Code)). The maximum penalty for the offence of sexually penetrating a child of or over the age of 13 years and under the age of 16 years, is 14 years' imprisonment (see s 321(2), read with s 321(7)(a) of the Code).
The first limb of the totality principle requires that the total effective sentence imposed on an offender who has committed multiple offences, must bear a proper relationship to the overall criminality involved in all of the offences (including those, if any, in respect of which the offender is still serving or is yet to serve a term of imprisonment), viewed in their entirety, having regard to all relevant facts and circumstances, including those referable to the offender personally (and including, for example, the desirability of accommodating any wish to rehabilitate), and relevant sentencing factors and the total effective sentences imposed in comparable cases.
The guidance afforded by comparable cases is flexible rather than rigid. A sentencing range is merely one of the factors to be taken into account in deciding whether an individual sentence is manifestly excessive or a total effective sentence infringes the totality principle. The mere fact that a sentence is within the range of other sentences imposed for similar offences does not necessarily establish that there was an appropriate exercise of the sentencing discretion in the particular case. Similarly, the mere fact that a sentence is outside that range does not necessarily establish that the exercise of the sentencing discretion in the particular case miscarried.
When this court dismisses an appeal against sentence, or when it allows an appeal against sentence and resentences the appellant, this court's decision on the sentencing outcome does not, of itself, fix the upper or lower limit of the range.
There is no tariff for offences of the kind in question (or for sex offences generally) because of the great variation that is possible in the circumstances of the offending and the offenders. The sentence to be imposed in a particular case depends upon its individual facts and circumstances, having regard to the maximum penalty and all relevant sentencing considerations. It is important to appreciate what sentences are customarily imposed in cases involving similar offending, for the purpose of avoiding the risk of sentencing becoming idiosyncratic and arbitrary.
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 for the need to protect vulnerable children.
His Honour rightly regarded the offences committed by the appellant as serious. The serious features of the offending were:
(a)The gross breach of trust.
(b)The offending was persistent, overbearing and oppressive.
(c)The offending was, at least to some degree, premeditated.
(d)The offending was non‑consensual and involved, in some instances, verbal and physical aggression.
(e)The victim was vulnerable, given the absence of her parents and the inability of her grandfather and older brother to offer protection.
(f)The offending has had a profound and adverse effect upon the welfare of the victim.
(g)The offences were representative of a pattern of sexual abuse against J.
There was little that could be said in mitigation. The appellant did not have the mitigation of youth, pleas of guilty, remorse, or the absence of a prior criminal record. The appellant's methylamphetamine use was, as we have already mentioned, not mitigating. The appellant was entitled to some mitigation, having regard to his somewhat deprived and disadvantaged upbringing, his work record and the grief he suffered as a result of his mother's passing, but, having regard to the sentencing considerations referred to at [37] above, these could not be accorded much weight.
All of the appellant's offending was serious. The appellant treated J not as his niece, but as his girlfriend. He did so in a controlling and sometimes forceful way. Without in any way minimising the seriousness of the unwelcome kissing, some of which was accompanied by behaviour which could be described as 'groping', the acts of digital penetration were particularly serious. The act of masturbating while touching the appellant's buttocks in her bed was also highly offensive.
In our opinion, the total effective sentence imposed by his Honour did not infringe the totality principle. The appellant's offending, considered as a whole, exhibited a high degree of criminality. There was very little to be said in mitigation. Some accumulation of the sentences was required, given that the offending occurred on different days in separate incidents. In our opinion, the total effective sentence bears a proper relationship to the criminality involved in all of the offences, viewed together, and having regard to all relevant facts and circumstances and all relevant sentencing factors, including the need to provide appropriate punishment and general deterrence in order to protect vulnerable children. We have considered the cases cited by the appellant and, contrary to the submissions made on behalf of the appellant, they do not point towards error.
The appellant's submission set out in [30] of these reasons is without merit. The appellant does not allege that the individual sentences on counts 9 and 10 were manifestly excessive. Had such a contention been made, it would, having regard to all of the relevant circumstances, fail. In any event, His Honour was entitled to impose higher sentences for counts 9 and 10, having regard to the persistent nature of the appellant's acts against J.
In our opinion, it is not reasonably arguable that the total effective sentence imposed by his Honour infringed the first limb of the totality principle. The ground of appeal is without merit.
Orders
The orders we would make are as follows:
(1)An extension of time to appeal is granted.
(2)Leave to appeal is refused.
(3)The appeal is dismissed.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
NF
Research Associate to the Honourable Justice Murphy and the Honourable Justice Mazza
12 AUGUST 2021
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