WRT v The State of Western Australia
[2020] WASCA 68
•1 MAY 2020
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: WRT -v- THE STATE OF WESTERN AUSTRALIA [2020] WASCA 68
CORAM: BUSS P
BEECH JA
HEARD: 14 APRIL 2020
DELIVERED : 1 MAY 2020
FILE NO/S: CACR 179 of 2019
BETWEEN: WRT
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram: GILLAN DCJ
File Number : IND 1713 of 2018
Catchwords:
Criminal law and sentencing - Inferred error - Five counts of sexual offending against a child under 13 years and one count of deprivation of liberty - Whether sentence of 3 years' imprisonment for deprivation of liberty manifestly excessive - Whether total effective sentence of 8 years' imprisonment breaches both limbs of the totality principle - Whether COVID-19 virus relevant to grant of leave to appeal against sentence when sentence was imposed prior to emergence of virus
Legislation:
Criminal Appeals Act 2004 (WA), s 39(1), s 40(1)(e)
Criminal Code (WA), s 333
Result:
Leave to appeal on all grounds refused
Appeal dismissed
Category: D
Representation:
Counsel:
| Appellant | : | T F Percy QC & J M P Byrne |
| Respondent | : | No appearance |
Solicitors:
| Appellant | : | Equitas Lawyers |
| Respondent | : | Director of Public Prosecutions (WA) |
Case(s) referred to in decision(s):
Abbott v The Queen [2019] WASCA 90
Baynah v The State of Western Australia [No 2] [2019] WASCA 103
Brown (aka Davis) v The Queen [2020] VSCA 60
Colwell v The State of Western Australia [No 2] [2012] WASCA 196
Cook v The Queen [2001] WASCA 16
CYD v The State of Western Australia [2018] WASCA 66
Director of Public Prosecutions (Cth) v Politopoulos [2020] VCC 338
Director of Public Prosecutions (Vic) v Morey (a pseudonym) [2020] VCC 320
Director of Public Prosecutions (Vic) v Tennison [2020] VCC 343
DKA v The State of Western Australia [2015] WASCA 112
Free v The State of Western Australia [2006] WASCA 259
FWB v The State of Western Australia [2016] WASCA 118
Gulyas v The State of Western Australia [2007] WASCA 263; (2007) 178 A Crim R 539
Henderson v The State of Western Australia [2007] WASCA 198
JDF v The State of Western Australia [2016] WASCA 221
JKL v The State of Western Australia [2012] WASCA 215
Kabambi v The State of Western Australia [2019] WASCA 44
KMT v The State of Western Australia [No 2] [2018] WASCA 49
LAT v The State of Western Australia [2018] WASCA 215; [2019] ALMD 2253
LWD v The State of Western Australia [2017] WASCA 174
MacCauley v The State of Western Australia [No 2] [2017] WASCA 65
R v Madex [2020] VSC 145
The State of Western Australia v CGT [2018] WASCA 226
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 TIK [2009] WASCA 122
Van Zyl v The State of Western Australia [2017] WASCA 1
VIM v The State of Western Australia [2005] WASCA 233; (2005) 31 WAR 1
Walters v The State of Western Australia [2018] WASCA 3
Wellstead v The State of Western Australia [2019] WASCA 130
JUDGMENT OF THE COURT:
Summary
On 23 September 2019, the appellant was convicted after trial of two counts of indecently dealing with a child under 13 years, two counts of sexual penetration of a child under 13 years, one count of attempted sexual penetration of a child under 13 years and one count of deprivation of liberty. The complainant in relation to all of the offences was the appellant's daughter. The offending occurred over a period of about 10 years, when the complainant was between 4 and 14 years old.
On 12 November 2019, the appellant was sentenced to a total effective sentence of 8 years' imprisonment, arising from the following sentences for the individual offences:
Count
Date
Offence
Max. penalty
Sentence
1
Unknown date between 5 July 2002 and 1 June 2003
Indecently dealing with a child under 13 years (s 320(4))
10 years
2 years
Concurrent
2
Unknown date between 5 July 2006 and 5 July 2007
Attempted sexual penetration of a child under 13 years (s 320(2), s 552)
10 years
2 years
Concurrent
3
Unknown date between 5 July 2006 and 5 July 2008
Sexual penetration of a child under 13 years (cunnilingus) (s 320(2))
20 years
3 years
Head sentence
4
Unknown date between 5 July 2003 and 5 July 2004
Sexual penetration of a child under 13 years (fellatio) (s 320(2))
20 years
3 years
Concurrent
5
Unknown date between 1 December 2010 and 31 January 2011
Indecently dealing with a child under 13 years (s 320(4))
10 years
2 years
Cumulative
6
From 10 to 11 November 2012
Deprivation of liberty (s 333)
10 years
3 years
Cumulative
The appellant applies for leave to appeal against his sentence on three grounds. Ground 1 contends that the sentence of 3 years' imprisonment imposed on count 6 - the offence of deprivation of liberty - was manifestly excessive. Ground 3 contends that the total effective sentence of 8 years' imprisonment infringes both limbs of the totality principle. Ground 2, which is in effect a particular of ground 3, contends that the judge erred by making the sentence on count 6 fully cumulative.
For the following reasons, in our opinion, none of these grounds has any merit. Consequently, leave to appeal must be refused and the appeal dismissed.
Facts of offending
The judge made the following unchallenged findings as to the facts of the offending.[1]
[1] ts 717 - 721.
The complainant is the appellant's biological daughter. She was born on 5 July 1998. During the complainant's childhood, the appellant worked overseas in the oil industry, usually on a five-days-on, five‑days‑off roster. When he was not working, he lived with the complainant and her mother (his wife at the time) at a house in Perth, first in Kewdale and later in Waterford.
It was a feature of the appellant's parenting of the complainant that he would engage in harsh discipline of her. For example, when she was 6 or 7 years old and got a poor result at school, he shut her in the bathroom and kept her there for a period of time. If she was ill-behaved at a restaurant, he would make her stand in the corner of the restaurant with her nose to the wall for a period of time. He would hit her with objects, including a wooden broom and wooden spoon. On at least one occasion, he broke the spoon on her. On occasions, he also threw her and her electronic devices into the swimming pool.
Count 1 occurred when the complainant was 4 years old. The complainant was naked in her room. The appellant went into the room wearing a shirt and underpants and lay on the bed next to her. He pulled aside his underpants and put her on top of him, rubbing her vagina against his penis. He treated this as a game, which he called 'riding the horsey'.
Count 4 occurred next in time, when the complainant was 5 years old. The appellant had his own bedroom at the house in Waterford, which was known to the complainant as the kip room. On this occasion, the appellant was lying in his bedroom pretending to take a nap. This was a common feature of his sexual offending against the complainant. While he was lying on the bed, the complainant came into the room and got onto the bed. The appellant proceeded to push her head down so that his penis penetrated her mouth. He made her continue until he ejaculated, at which point she ran out of the room and spat the ejaculate into the corner of her room. Her evidence, which the judge accepted, was that he made her perform oral sex in this way on other occasions.
Count 2 occurred when the complainant was 8 or 9 years old. The appellant and the complainant were in the kip room. The complainant was lying on top of the bed facing the appellant, who had his eyes closed. He tried to penetrate her vagina with his penis, but was unsuccessful in the attempt. This was the only time the appellant attempted to penetrate the complainant's vagina with his penis.
Count 3 also occurred when the complainant was 8 or 9 years old. Once again, the appellant and the complainant were lying on the bed in the kip room. The appellant had the complainant sit on his face while he performed cunnilingus on her. He did this on a number of other occasions too.
Count 5 occurred when the complainant was 12 years old. The appellant took the complainant to Busselton on his motorbike and checked into a motel with her. The appellant was with the complainant in the bed in the motel room. He rubbed her vagina with his hand. After rubbing her vagina for a period of time, he got a cramp. The complainant laughed at the face he pulled and he punished her by making her sit outside the motel room in the cold.
The judge found that, for much of the sexual offending against the complainant, the complainant believed that the appellant was asleep and that she had instigated the sexual contact. The appellant would maintain that fiction with her by asking her after the events: 'did you touch me while I was asleep'?
The final occasion of sexual abuse that the complainant could remember, not the subject of a charge, occurred in 2011, while she, the appellant, family and friends were staying in a villa on holiday in Thailand. On one of the days, the appellant stayed at home with the complainant while the rest of the group went out for the day. The appellant called the complainant into the room he was sharing with her and her mother and sought to rub her on the vagina with his hand. The complainant felt coerced by the appellant on that occasion and thereafter the sexual contact between them ceased.
Count 6 - the charge of deprivation of liberty - occurred when the complainant was 14 years old. Towards the end of 2012, the complainant was acting up at school and getting into trouble. At the time, her mother was working in a FIFO position outside of Kalgoorlie.
On Friday, 9 November 2012, the complainant was suspended from school. She came home after school and told the appellant. In response, he took her mobile phone away from her and told her that she was grounded. She hid in her room for a time, but then left the house without the appellant's knowledge or permission. She caught the bus to attend a youth group and stayed overnight with friends from the youth group without telling the appellant where she was.
At 8.00 am on Saturday, 10 November 2012, the appellant reported the complainant missing to police and handed in her mobile phone. The police contacted the complainant fairly promptly and she agreed to go to the police station. After hearing of this, the appellant went to a hardware store and purchased 2 m of galvanised chain, a D shackle, cable ties and duct tape. He already had a set of handcuffs at home. He took those materials home, drilled into the concrete floor of the complainant's bedroom, inserted a DynaBolt and removed from her bedroom most of her belongings and clothes.
At about 12.00 pm, the complainant arrived at the police station. The appellant went to collect her at some point between 1.00 pm and 1.30 pm. Upon returning home, the appellant made her change into the school uniform she had worn the previous day. He then used the handcuffs on her and chained her to the floor of the bedroom. She complained that the handcuffs were uncomfortable, so the appellant used cable ties around her ankles to keep her chained in her bedroom. He gave her water, some bread to eat and a bucket in which to toilet. She cried herself to sleep. At one stage, she was allowed to have a shower, but the appellant kept the door ajar while she was in the shower. She wore underpants in the shower because the chain was still attached to her legs, and she therefore had to dry her underpants with the hair dryer. The appellant again made her dress into her school uniform. She was left chained in her bedroom overnight.
The following day, the appellant took his mother home. He removed the complainant from her bedroom and took her, together with his mother, with him in the car. The appellant used cable ties to restrain the complainant's feet and used handcuffs to attach her to the car seat, to prevent her from leaving the car. He also cable-tied her lunchbox lid around her neck and wrote on it her name, his phone number, the phone number of the police and that she was a runaway. When they got to his mother's house, the appellant left the complainant restrained in the car while he went inside for about an hour. During that time, his sister and brother‑in‑law went out to the car and spoke with the complainant in order to tell her how poorly she had been behaving. The appellant then returned with the complainant to the Waterford house and again restrained her in her bedroom by way of the chain and cable ties.
Over the period that the appellant detained the complainant, he spoke with her mother by telephone and told her that he had tethered the complainant in her room. The complainant's mother was unsure whether he was telling her the truth, and he would not let her speak with the complainant. Eventually, the complainant's mother had her own mother go to the house on the pretext of collecting a cardigan. The complainant's maternal grandmother saw the complainant and then left, informing the complainant's mother that the complainant was indeed chained in her bedroom. The complainant's mother rang a friend who was associated with a crisis hotline and the friend informed the police.
At about 6.15 pm on Sunday, 11 November 2012, the police arrived at the house. They arrived at about the same time as the appellant, who had gone out of the house to buy beer from the shop and to call past the rugby club to have a couple of beers. The police found the complainant still chained to her bedroom floor. At that stage, she had been restrained for at least 26 hours. The police took the complainant to hospital, where she was placed on a drip and then taken to stay with her maternal grandmother.
Timing of the charges
The appellant was charged with deprivation of liberty in November 2012. That charge was dropped in 2013 because the complainant did not feel able to give evidence against the appellant at that stage. In July 2014, the appellant disclosed the sexual offending to her headmistress, but no further action was taken at that time. In 2016, when the complainant was 18 years old, she approached the police and sought to reinstate the charge of deprivation of liberty. Over a period thereafter, she disclosed the sexual offending.[2] The appellant was re-arrested on the deprivation of liberty offence in mid-2017 and charged with the sexual offences in April 2018.
Personal circumstances[3]
[2] ts 721 - 722.
[3] ts 722 - 724.
The appellant was 69 years old at the time of his sentencing, and between 51 and 62 years old at the time of the offending.
At the time of his sentencing, the appellant was a single man. He had no contact with the complainant, the complainant's mother (from whom he had separated) or an older child he had not known about until that child was an adult. He maintained relationships with his mother and sister, although it appeared to the judge that they were unaware of his convictions.
The appellant's mother was, at the time he was sentenced, 91 years old. She was being cared for by the appellant and his older sister.
The judge accepted that the appellant had always been a hardworking man; he had left school at a young age, achieved a very well paid and skilled job in the oil industry, been a constant worker and worked for many years around the world.
The judge also accepted that the appellant did not enjoy good health. He suffered from diabetes, cardiovascular disease, gout, degenerative changes in his lumbar spine and carpal tunnel syndrome. He also suffered from anxiety and depression, which appeared from the reports to be largely connected with the legal proceedings and his convictions.
The appellant was not of prior good character, having been sentenced to a term of imprisonment for the importation of cannabis into Australia in 1981.
Four character references were provided to the judge. They attested to the appellant's skill and generosity, and expressed the view that the offending was out of character for the appellant. The judge accepted that the appellant had the qualities the character references ascribed to him.
Sentencing remarks
The judge made the following observations and findings based on the two psychological reports and the pre-sentence report prepared concerning the appellant:[4]
(1)The reports did not suggest any strongly mitigating factors, or any factors that explained the appellant's offending.
(2)One factor evident from the reports was that the appellant strongly maintained his denial of the sexual offending.
(3)The appellant lacked insight into the deprivation of liberty offence, and minimised the effect that the offending may have had on the complainant. He maintained that his actions were, to some extent, justified.
(4)There was a continued element of victim blaming in each of the reports.
[4] ts 723.
The judge identified the following aggravating features of the sexual offending the subject of counts 1 to 5:[5]
(1)The offending was an abuse of trust; the complainant was entitled to be kept safe from sexual abuse by her father.
(2)The offending started when the complainant was a very young child and the appellant was significantly older.
(3)The offending occurred over a long period of time and involved such a normalisation of the behaviour that the complainant came to believe that she was the instigator of it.
[5] ts 724.
With respect to the deprivation of liberty offence (count 6), the judge identified the following aggravating factors:[6]
(1)The offending was over a period of more than 26 hours.
(2)The appellant used physical restraints on the complainant.
(3)The appellant humiliated the complainant by removing her belongings from her room, requiring her to wear her school uniform, feeding her bread and water, providing her with a bucket for toileting and requiring her to shower with a chain on her leg and the door open.
[6] ts 724.
The judge noted that there were some mitigating factors.[7] The principal mitigating factors were the appellant's age and ill health. The judge accepted that the appellant's physical and mental health conditions would make a term of imprisonment more onerous for the appellant than for a person who was younger or in better health.[8] Further, there was a substantial delay in the prosecution of the matter. Although giving the appellant some benefit for that, her Honour considered that the delay was, in part, a direct consequence of the deprivation of liberty offence; that offence had the effect of rendering the complainant incapable of pursuing the matter until she had spent time apart from the appellant and regained a proper sense of herself.
[7] ts 724.
[8] ts 723.
The judge referred to the observations of this court in VIM v The State of Western Australia[9] as to the insidious and enduring effects of offending of this kind on children. Her Honour stated that she was left in no doubt from the complainant's evidence at the trial, as confirmed by the contents of her victim impact statement, that the appellant's offending against her had a significant and substantial effect on her and continued to have that effect. Her Honour stated that that was particularly the case with this offending because the appellant let the complainant believe for a very long time that she was somehow responsible for the sexual contact with him.[10]
[9] VIM v The State of Western Australia [2005] WASCA 233; (2005) 31 WAR 1. See especially [289] ‑ [294].
[10] ts 725.
The judge noted that the primary sentencing considerations for offences of this kind are appropriate punishment and general and specific deterrence.[11] Her Honour considered that specific deterrence was less of a factor in the appellant's case, primarily because of the appellant's engagement in treatment sessions with a clinical and forensic psychologist and the lack of evidence of other sexual offending against children.[12]
[11] ts 725.
[12] ts 723, 725.
As to remorse, the judge made the following comments:[13]
I also take into account the fact that given the matters that have been dealt with in all of the reports and indeed the way in which the trial was conducted and your assertions against [the complainant] … I can't find that you are remorseful in any way for your offending in counts 1 to 5, and any remorse that you've expressed since is of limited utility because it's - you still seek to justify your actions.
[13] ts 726.
Having come to the conclusion that a term of immediate imprisonment was required, the judge imposed the sentences set out at [2] above.[14] In doing so, her Honour said as follows concerning the fixing of the length of the term:[15]
I do consider that a term of immediate imprisonment is required but in reaching the term I have taken into account your ill health, the need to not - not to sentence you to a crushing sentence given your age and those matters in weighing up the extent of any sentence but I do have to take into account the abhorrent nature of your offending and the effect that it has had on your daughter.
[14] ts 725 - 726.
[15] ts 725.
The appellant was made eligible for parole.[16]
[16] ts 726.
Grounds of appeal
The appellant appeals on three grounds, in the following terms:
1.The individual sentence imposed by the learned sentencing Judge on Count 6 was, in all the circumstances, manifestly excessive.
Particulars:
1.1The appellant's antecedents;
1.2The criminality involved;
1.3Sentences imposed in, broadly, comparable cases.
2.The learned sentencing Judge erred by imposing a fully cumulative sentence in respect of Count 6.
3.The total effective sentence imposed by the learned sentencing Judge infringed the totality principle, having regard to the circumstances of the case, including the Appellant's age and state of health.
Appeals against sentence: general principles
The following general principles governing appeals contending that error should be inferred on the basis that an individual sentence is manifestly excessive, or that a total effective sentence infringes the totality principle, are well established:[17]
(1)Sentencing is a discretionary exercise. An appellate court can intervene only if the appellant demonstrates either an express or implied material error. Express error involves acting on a wrong principle, for example by mistaking the law or facts or taking into account an irrelevant matter. Implied error arises where the end result is so unreasonable or unjust that the court must conclude that a substantial wrong has occurred. Thus, an appellate court cannot substitute its own opinion for that of the sentencing court merely because the appellate court would have exercised a sentencing discretion differently.
(2)In order to determine whether a sentence for an individual offence is manifestly excessive or inadequate, the offence should be viewed in light of the maximum sentence prescribed by law for the crime, the standards of sentencing customarily imposed with respect to it, the place that the criminal conduct occupies in the scale of seriousness of crimes of that type, and the offender's personal circumstances.
(3)The first limb of the totality principle 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 (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), all relevant sentencing factors and the total effective sentences imposed in comparable cases.
(4)The range of sentences customarily imposed for a crime does not establish the range of a sound exercise of the sentencing discretion. Sentences customarily imposed in comparable cases provide a yardstick or reference point for ensuring broad consistency in sentencing, bearing in mind the scope for significant variations in relevant sentencing factors, and that there is no single correct sentence. What is important is the unifying principles which sentences imposed in comparable cases reveal and reflect.
(5)When this court dismisses an appeal against sentence and when it resentences on a successful appeal, its decision does not fix the upper or lower limit of the range.
(6)Where there is a challenge on totality grounds, the severity of a sentence imposed on an individual count generally falls to be assessed in light of the sentences imposed in respect of the other counts and its contribution to the total effective sentence. A heavy individual sentence (which is not manifestly excessive) may be softened by an order that it be served concurrently with sentences imposed in relation to the other counts. A relatively light sentence (which is not manifestly inadequate) may, as a practical matter, have increased severity if it is ordered to be served cumulatively. The real question is whether the total effective sentence is unreasonable or plainly unjust.
[17] See, for example, Kabambi v The State of Western Australia [2019] WASCA 44 [21].
We begin with ground 1.
Ground 1: manifest excess on count 6
Appellant's submissions
The appellant submits that, taking into account his remorse for the offending constituting count 6, his personal circumstances, the circumstances of the offending and the comparable cases, the sentence of 3 years' imprisonment imposed on count 6 was manifestly excessive.[18]
[18] Appellant's submissions [40].
The appellant draws attention to some aspects of his personal circumstances that were not expressly referred to by the judge. He submits that, at the time of sentencing, he had an elderly mother (aged 91 years) who was cared for by him and his sister.[19] Further, as submitted at the sentencing hearing, he planned to continue work in his field as a consultant when released from custody.[20] Also, at the time of sentencing, he did not have any drug or alcohol issues.[21]
[19] Appellant's submissions [23].
[20] Appellant's submissions [24].
[21] Appellant's submissions [25].
The appellant submits that the prosecution conceded that there was some remorse in relation to the offending the subject of count 6.[22] That is not so. The prosecutor submitted at the sentencing hearing that '[s]o far as count 6 is concerned, the State would invite the court to find that there's no relevant remorse on the part of [the appellant]'.[23] Remorse can be put to one side, given the judge's unchallenged findings in [30] and [36] above.
[22] Appellant's submissions [41].
[23] ts 713.
Otherwise, the appellant's submissions on this ground compare the sentence imposed for count 6 with sentences imposed in what are said to be comparable cases, namely Cook v The Queen,[24] Free v The State of Western Australia,[25] FWB v The State of Western Australia[26] and CYD v The State of Western Australia.[27]
[24] Cook v The Queen [2001] WASCA 16.
[25] Free v The State of Western Australia [2006] WASCA 259.
[26] FWB v The State of Western Australia [2016] WASCA 118.
[27] CYD v The State of Western Australia [2018] WASCA 66.
The appellant says that an examination of deprivation of liberty cases in The State of Western Australia v TIK[28] reveals a range of sentences from 1 year 4 months to 3 years 4 months.[29] He submits that the deprivation of liberty offences in the comparable cases were significantly more serious than count 6 because:[30]
(1)those deprivation of liberty offences were committed for the purpose of committing a more serious crime, generally violent sexual offending, rather than for the sole purpose of detaining the victim; and
(2)in two of the comparable cases, the deprivation of liberty took place while the offender was on bail for previous offences.
Disposition
[28] The State of Western Australia v TIK [2009] WASCA 122 [45].
[29] Appellant's submissions [45].
[30] Appellant's submissions [69] ‑ [70].
The maximum penalty for the offence of deprivation of liberty is 10 years' imprisonment.
The appellant's submissions overlook, or fail to adequately recognise, the many serious features of his offence of deprivation of liberty. His offending conduct was appalling. The appellant's victim was his daughter. She was vulnerable and was entitled to expect that her father would protect her from harm, not inflict it upon her. The appellant used handcuffs, a chain and cable ties to restrain his daughter. He purchased the chain and cable ties for the purpose of using them in this way. He detained and restrained his daughter in a manner and in circumstances calculated to humiliate her and that involved an element of cruelty. He fed her bread and water; made her use a bucket to go to the toilet; made her shower with a chain on her leg and the door open; and required her to wear her school uniform through most of her ordeal. The appellant's offence of deprivation of liberty was sustained - he detained his daughter for a period of 26 hours.
These features of the appellant's offence amply justify the sentence of 3 years' imprisonment, even after giving full weight to the mitigating factors in his favour, including his age and ill health and the matters referred to at [43] above.
Having been convicted after trial, the appellant did not have the mitigatory benefit of a plea of guilty.
The cases on which the appellant relies provide no support for his assertion that his sentence on count 6 was manifestly excessive. In addition to cases referred to by the appellant, including the review of cases in The State of Western Australia v TIK,[31] we have had regard to the cases reviewed in CYD.[32] The appellant's submission summarised in [46] above inappropriately singles out particular features of the cases said to be comparable, without any recognition of the different serious elements of the appellant's offending. The cases demonstrate that the offence of deprivation of liberty can be committed in a wide range of circumstances involving a range of different serious features. The difficulty of comparing cases of deprivation of liberty, given their factual diversity, has been previously remarked upon in this court.[33] Where, as here, there is little in common in the circumstances of two offences of deprivation of liberty, comparison of the sentences imposed will be consequently more difficult and of limited utility. None of the cases on which the appellant relies has features which substantially mirror, or overlap with, the serious features of the appellant's offending, as already outlined.
[31] The State of Western Australia v TIK [45].
[32] CYD [80].
[33] Henderson v The State of Western Australia [2007] WASCA 198 [61].
Viewed from the perspective of the maximum penalty of 10 years' imprisonment, and taking into account all relevant facts and circumstances and all relevant sentencing factors, including:
(1)the facts and circumstances of the offence;
(2)the aggravating factors outlined in [48] above;
(3)the complainant's vulnerability;
(4)all relevant mitigating factors;
(5)the appellant's personal circumstances and antecedents; and
(6)the general sentencing patterns, to the extent they may be discerned, revealed by comparable cases,
we are satisfied that it is not reasonably arguable that the sentence for count 6 is unreasonable or plainly unjust.
For the above reasons, we would refuse leave to appeal on ground 1.
Grounds 2 and 3: accumulation of count 6 and both limbs of the totality principle
Appellant's submissions
Grounds 2 and 3 can be dealt with together. The appellant puts ground 2 as an aspect of, or in the alternative to, ground 3.[34] He submits that 'in making Count 6 fully cumulative, the resultant total effective sentence breached the totality principle',[35] relying on his submissions on ground 3 to make good this point.[36]
[34] Appellant's submissions [71].
[35] Appellant's submissions [72].
[36] Appellant's submissions [73].
The appellant submits that the total effective sentence breaches both limbs of the totality principle. He submits that 'less weight was accorded to mitigatory factors than would ordinarily be expected or appropriate in order to reflect the seriousness of the total conduct'.[37]
[37] Appellant's submissions [74].
The appellant points to the following matters in support of ground 3:[38]
(1)his advanced age and ill health;
(2)the reduced need for personal deterrence;
(3)the sentences generally imposed for this type of offending; and
(4)the overall criminality of the offending.
Advanced age and ill health
[38] Appellant's submissions [77].
The appellant submits that the total effective sentence is crushing upon him (and thereby breaches the second limb of the totality principle), having regard to the following factors:
(1)he will be 77 years old by the time his full sentence is served;
(2)he has significant health problems; and
(3)the judge accepted that his physical and mental health conditions would make custody more onerous for him than for someone who was younger or in better health.[39]
Reduced need for personal deterrence
[39] Appellant's submissions [78] - [85].
The appellant submits that, in accordance with the approach of the judge, there was minimal requirement for personal deterrence, which should have been, but was not, reflected in the overall sentence imposed.[40]
Comparable cases
[40] Appellant's submissions [86] - [88].
The appellant refers to what he submits are five comparable cases, namely DKA v The State of Western Australia,[41] JDF v The State of Western Australia,[42] Van Zyl v The State of Western Australia,[43] KMT v The State of Western Australia [No 2][44] and The State of Western Australia v CGT.[45]
Overall criminality of the offending
[41] DKA v The State of Western Australia [2015] WASCA 112.
[42] JDF v The State of Western Australia [2016] WASCA 221.
[43] Van Zyl v The State of Western Australia [2017] WASCA 1.
[44] KMT v The State of Western Australia [No 2] [2018] WASCA 49.
[45] The State of Western Australia v CGT [2018] WASCA 226.
The appellant submits that, having regard to the comparable cases, the total effective sentence of 8 years' imprisonment is excessive.[46] He points out that the sexual offending was devoid of any penile penetration (while acknowledging that there was an offence of attempted penile penetration) and that no physical force was used against the complainant in relation to the sexual offending.[47]
[46] Appellant's submissions [129]. See also [131].
[47] Appellant's submissions [129].
The appellant acknowledges that there are no cases analogous to the mixed nature of the offending (sexual offending on counts 1 ‑ 5 and deprivation of liberty on count 6). Nevertheless, he submits that the total effective sentence of 8 years' imprisonment does not properly reflect the personal circumstances and overall criminality of the offending.[48]
Supplementary submissions: the COVID-19 virus
[48] Appellant's submissions [130].
In supplementary submissions filed, without any application for leave,[49] shortly before the hearing of his application for leave to appeal, the appellant submits that the advent of the COVID-19 virus 'might be relevant to an assessment of the sentence imposed [upon him]'.[50]
Disposition
[49]At the hearing, the appellant was ordered to file an application for leave to rely on his supplementary submissions by no later than 16 April 2020. Such submissions were filed on 17 April 2020.
[50] Appellant's supplementary submissions dated 9 April 2020 [7].
For the following reasons, the appellant has fallen well short of demonstrating that his total effective sentence of 8 years' imprisonment infringes either limb of the totality principle.
The maximum penalties for the appellant's offences, set out in the table at [2] above, reflect the seriousness of his offending. The appellant committed two offences with a maximum penalty of 20 years' imprisonment and four offences with a maximum penalty of 10 years' imprisonment.
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.[51] As a result, matters personal to an offender will ordinarily carry less weight.
[51] See, for example, The State of Western Australia v PJW [2015] WASCA 113 [34] and cases there cited.
The increased likelihood of significant and enduring harm that comes with repetitive and prolonged sexual abuse against a child is one of the reasons that accumulation of the sentences for the individual offences is to be expected.[52]
[52] VIM [294].
In this case, as the judge recognised, personal deterrence had little or no role to play. That did not diminish the significance of punishment and general deterrence in determining the appropriate sentence in this case.
The appellant's offending had a number of very serious features, overlooked or unappreciated in his submissions. As to count 6, we refer to what is said in [48] above. The serious features of his sexual offending against his daughter included the following. The offending was an abuse of what is perhaps the ultimate position of trust, namely the relationship between parent and child. The offending commenced when the complainant was very young, aged 4 years old and, as a result, highly vulnerable. It continued over many years. While the offending did not include penile penetration of the complainant's vagina, it included an attempt to do so and offences of both fellatio and cunnilingus. Those latter counts, namely counts 3 and 4, did not reflect isolated conduct. They were both representative offences and therefore there was no room for any contention that counts 3 and 4 were aberrations or out of character. It is true, as the appellant emphasises, that his offending did not involve violence. But it had other insidious effects on its victim. The appellant's offending against his daughter so normalised his depraved conduct that his daughter came to believe, with the appellant's encouragement, that she was the instigator of it.
Had the appellant's sexual offending stood alone, its serious features outlined above, after taking into account the mitigation, might properly have resulted in a sentence that exceeded the 5-year total effective sentence imposed on the appellant in relation to counts 1 - 5.
The judge gave little mitigatory weight to the long gap between when the offences were committed and when the appellant was charged. In our respectful view, the judge was right to do so. The judge found, without challenge on appeal, that the delay in the making of a complaint was likely to have been caused in part by the appellant's conduct the subject of count 6. Moreover, the observations of Mazza JA (with whom McLure P and Buss JA agreed) in The State of Western Australia v FJG apply with equal force here:[53]
Against his age and the other factors I have mentioned in this analysis favourable to the [appellant] must be weighed the sheer seriousness of his offending and the need to provide proper punishment and general deterrence. General deterrence remained a very important sentencing consideration in this case. 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.
[53] The State of Western Australia v FJG [2012] WASCA 206 [71].
We accept that the appellant's advanced age and ill health are relevant to the consideration of both limbs of the totality principle. However, whether and to what extent advanced age and ill health mitigate depends upon the facts and circumstances of the case. As this court has previously observed, it may be that, having regard to the seriousness of the offending, advanced age can be given little or no mitigatory weight.[54] Age is only one factor in the sentencing process, and advanced age can never be a justification for a sentence which is not fairly proportionate to the offence or is otherwise inappropriate.[55] The same is true of ill health.[56] In this case, appropriate punishment of the appellant's serious and sustained offending against his daughter, and general deterrence of such offending, required that the appellant be sentenced to a very substantial term of immediate imprisonment, notwithstanding his age and ill health.
[54] See, for example, Walters v The State of Western Australia [2018] WASCA 3 [23].
[55] Gulyas v The State of Western Australia [2007] WASCA 263; (2007) 178 A Crim R 539 [35]; The State of Western Australia v CGT [79].
[56] The State of Western Australia v CGT [80].
The cases upon which the appellant relies as being reasonably comparable provide no support for his contention that the totality principle has been infringed. None of those cases involved an offence of deprivation of liberty. Yet, the tenor of the appellant's submissions is to compare the appellant's sexual offending with the offenders' respective sexual offending in the allegedly comparable case.[57] To the extent that comparison of the sentences imposed in the allegedly comparable cases with the appellant's sentence is apposite, the more relevant comparison is with the 5‑year total effective sentence imposed on the appellant for his sexual offending, not with his overall sentence of 8 years. But, in the end, the cases upon which the appellant relies provide little assistance in the evaluation of the appellant's total effective sentence because the comparable cases lack what was a significant and distinct component of the appellant's criminality - his deprivation of liberty, for 26 hours, of his daughter.
[57] Appellant's submissions [97], [103], [111], [117], [127].
In our opinion, the total effective sentence of 8 years' imprisonment did not, even arguably, infringe the first limb of the totality principle. It was well within the range of sentences that bear a proper relationship to the overall criminality involved in all of the appellant's offences, having regard to all relevant circumstances and all relevant sentencing factors, including those referable to the appellant personally.
Further, the total effective sentence does not infringe the second limb of the totality principle. First, it is not crushing in the relevant sense; it has not destroyed any reasonable expectation of the appellant having a useful life after release. Secondly, in any event, as explained in [71] above, the very serious nature of his offending considered as a whole, the necessity for appropriate punishment and the demands of general deterrence significantly reduced the extent to which humanitarian considerations, based on the appellant's advanced age and ill health, could be accommodated in the overall sentencing disposition. The seriousness of his offending meant that a materially more lenient total effective sentence was not appropriate.
For these reasons, it is not reasonably arguable that error by her Honour in the exercise of her discretion should be inferred, based on the first or second limb of the totality principle, from the sentencing outcome. The total effective sentence of 8 years' imprisonment was not unreasonable or plainly unjust.
That brings us to the appellant's supplementary submissions. In his supplementary submissions, the appellant points to a number of cases in other Australian jurisdictions in which the potential relevance of the COVID-19 virus to the determination of an appropriate sentence has been acknowledged.[58] He submits that the subsequent advent of the COVID-19 virus, and its potential consequences for the appellant, 'might be relevant to an assessment of the sentence imposed [upon him]'.[59] He submits that this 'should be considered … in determining the question of leave'.[60] Nothing in the supplementary submissions identified how these matters justified appellate interference with a sentence imposed before COVD-19 emerged.
[58] Appellant's supplementary submissions dated 9 April 2020 [6], referring to Brown (aka Davis) v The Queen [2020] VSCA 60 [48]; R v Madex [2020] VSC 145 [51] - [52]; Director of Public Prosecutions (Vic) v Tennison [2020] VCC 343 [36] - [37]; Director of Public Prosecutions (Cth) v Politopoulos [2020] VCC 338 [75] - [77]; Director of Public Prosecutions (Vic) v Morey (a pseudonym) [2020] VCC 320 [82] - [86].
[59] Appellant's supplementary submissions dated 9 April 2020 [7].
[60] Appellant's supplementary submissions dated 9 April 2020 [8]; see also appeal ts 5.
In response to an enquiry from the bench seeking identification of the ground of appeal to which the supplementary submissions are said to relate, senior counsel for the appellant contended that the matters raised relate to the question of totality encompassed by ground 3.[61] Senior counsel did not explain how, consistently with established principles concerning the limits of this court's appellate function, the emergence of COVID-19 after the appellant's sentencing gave rise to any ground for appellate interference with the sentences imposed upon him. Senior counsel accepted those principles, and merely asserted that COVID-19 is 'an extraordinary problem'.[62] As explained below, the limits of this court's function mean that, subject to narrow exceptions not applicable to the present case, it is not entitled to interfere with a sentence, appropriate when passed, on the basis of events which have occurred since sentence was imposed.
[61] Appeal ts 6.
[62] Appeal ts 4.
There are many cases in which this court has explained the limits of its function and the consequent obstacle for a ground of appeal which relies on events that occur after an offender is sentenced and which do not show facts relevant to the sentencing process that were in existence at the time of sentence but either not known to the sentencing judge or not properly appreciated at the time. The following outline draws heavily upon what was said by this court in Abbott v The Queen.[63]
[63] Abbott v The Queen [2019] WASCA 90 [44] - [47].
In Abbott, the offender sought to rely on events which had occurred after he was sentenced and which did not relate to facts in existence at the time of sentencing. The court adopted the following passage from the reasons in LAT v The State of Western Australia, in which the sole ground of appeal suffered from the same flaw:[64]
The sole ground of appeal is fundamentally flawed, as it relies on events occurring after the completion of the sentencing process. An appeal to this court is not an opportunity to revisit the question of the appropriate sentence in light of all material now available. The essential role of this court on an appeal against sentence is to discern whether there was error or a miscarriage of justice in the sentencing. Only if there was error or a miscarriage of justice does this court proceed to the second stage of re‑exercising the sentencing discretion and deciding whether a different sentence should have been imposed. Consequently, with limited exceptions referred to below, it is only at the second stage - once error or a miscarriage of justice is demonstrated - that this court takes account of post‑sentencing events in exercising afresh the sentencing discretion and deciding whether a different sentence should have been imposed. Because there is no ground of appeal asserting error or a miscarriage of justice in the sentence imposed as at the time it was imposed, no occasion arises to receive information concerning events post‑sentencing.
[64] LAT v The State of Western Australia [2018] WASCA 215; [2019] ALMD 2253 [39].
In Colwell v The State of Western Australia [No 2],[65] this court held that, as a general rule, an appeal court decides an appeal on the evidence and material before the court below: see s 39(1) of the Criminal Appeals Act 2004 (WA).[66] While this court has a broad discretion to admit other evidence on appeal pursuant to s 40(1)(e) of the Criminal Appeals Act, in the context of an appeal against sentence, ordinarily at least, a distinction is drawn between matters which existed at the time of sentencing, but were not known, and matters which have come into existence since the time of sentence. An appellate court is not entitled to intervene upon the basis of events which have occurred since the sentence was imposed and which are unrelated to facts in existence at the time of sentencing. The reasons for this are grounded in the role of an appellate court and were explained by Newnes JA (with whom Pullin and Mazza JJA agreed) in Colwell:[67]
It is accepted that an appellate court is not entitled to intervene upon the basis of events which have occurred since the sentence was imposed. Where a sentence, appropriate when passed, has by reason of subsequent events turned out to be excessive, that is a matter for executive government, not an appellate court. It is not the function of the court to fulfil a continuing supervisory role over the effect of imprisonment upon an individual.
Ordinarily, therefore, evidence will not be admitted of events which have occurred since the sentence was imposed. However, evidence of subsequent events may be received to show facts relevant to the sentencing process which were in existence at the time of sentence but either not known to the sentencing judge or not properly appreciated at the time. (citations omitted)
[65] Colwell v The State of Western Australia [No 2] [2012] WASCA 196.
[66] Colwell [28].
[67] Colwell [29] ‑ [30].
This passage has been adopted and applied in a number of decisions of this court, including JKL v The State of Western Australia;[68] MacCauley v The State of Western Australia [No 2];[69] LWD v The State of Western Australia;[70] LAT;[71] Abbott;[72] Baynah v The State of Western Australia [No 2];[73] and Wellstead v The State of Western Australia.[74]
[68] JKL v The State of Western Australia [2012] WASCA 215 [173].
[69] MacCauley v The State of Western Australia [No 2] [2017] WASCA 65 [46].
[70] LWD v The State of Western Australia [2017] WASCA 174 [84].
[71] LAT [39] ‑ [43].
[72] Abbott [45].
[73] Baynah v The State of Western Australia [No 2] [2019] WASCA 103 [49].
[74] Wellstead v The State of Western Australia [2019] WASCA 130 [92] - [93].
The extraordinary nature of the problems created by the COVID‑19 virus does not detract from these fundamental principles. The court cannot intervene, whether in the exercise of mercy or otherwise, on the basis of subsequent events.[75]
[75] Abbott [47].
The appellant's submission that the subsequent emergence of the COVID‑19 virus is (somehow) relevant to the question of totality fundamentally misunderstands the nature of a totality ground. As explained in Abbott, whether a sentence infringes the totality principle depends upon whether, at the time it was imposed, the sentence bears 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; there is no concept of a retrospective infringement of the totality principle.[76]
[76] Abbott [52] - [55].
None of the cases on which the appellant relies in his supplementary submissions detracts from these principles. They all involve having regard to COVID-19 in determining the appropriate sentence, not in discerning appellable error or a miscarriage of justice. Only one of those cases is an appellate decision. In that case, error was identified independently of COVID-19; only in the re-exercise of the sentencing discretion was reference made to COVID-19.[77]
[77] Brown (aka Davis) [48].
Of course, if error in the sentencing process were established, the court may have regard to matters arising after the original sentence was imposed in determining the appropriate sentence.[78] However, in this case, for the reasons already given, the appellant has failed to demonstrate any error in the sentencing process.
[78] See Wellstead [94] and cases there cited.
For these reasons, the appellant's supplementary submissions concerning the COVID‑19 virus do not assist him.
Thus, ground 3 does not have a reasonable prospect of succeeding. That conclusion is fatal to ground 2.
Conclusion
For the above reasons, none of the grounds of appeal has any merit. Consequently, we would refuse leave to appeal on each ground, and dismiss the appeal.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
SL
Associate to the Honourable Justice Beech1 MAY 2020
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