XMB v The State of Western Australia
[2023] WASCA 4
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: XMB -v- THE STATE OF WESTERN AUSTRALIA [2023] WASCA 4
CORAM: QUINLAN CJ
BEECH JA
HALL JA
HEARD: 7 DECEMBER 2022
DELIVERED : 5 JANUARY 2023
FILE NO/S: CACR 16 of 2022
BETWEEN: XMB
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram: STEVENSON DCJ
File Number : IND 1561 of 2019
Catchwords:
Criminal law - Appeal against sentence - Where appellant convicted of sexual offences after a retrial - Where total effective sentence imposed on retrial greater than that imposed after first trial - Whether the principle of restraint required that the same sentence be imposed - Where principle of restraint has no application where first sentence manifestly inadequate - Whether the first sentence was manifestly inadequate - Whether the principle of restraint has any residual effect on moderating or tempering the sentence imposed on a retrial
Legislation:
Criminal Code (WA)
Sentencing Act 1995 (WA)
Result:
Leave to appeal granted
Appeal dismissed
Category: B
Representation:
Counsel:
| Appellant | : | Ms K J Farley SC |
| Respondent | : | Mr L M Fox SC |
Solicitors:
| Appellant | : | Legal Aid (WA) |
| Respondent | : | Director of Public Prosecutions (WA) |
Case(s) referred to in decision(s):
Gilmore v The Queen (1979) 1 A Crim R 416.
Headley v The State of Western Australia [2018] WASCA 37.
JHL v The State of Western Australia [2021] WASCA 222.
LNE v The State of Western Australia [2021] WASCA 146.
LTT v The State of Western Australia [2022] WASCA 31.
Pollock v The State of Western Australia v Pollock [2011] WASCA 133.
R v Doan [2000] NSWCCA 317; (2000) 51 NSWLR 115.
RH McL v The Queen [2000] HCA 46; (2000) 203 CLR 452.
The State of Western Australia v AHD [2021] WASCA 13.
The State of Western Australia v CGT [2018] WASCA 226.
UGN v The State of Western Australia [2021] WASCA 10.
VRE v The State of Western Australia [2021] WASCA 185.
Walters v The State of Western Australia [2018] WASCA 3.
Williams v The Queen (No 2) (1982) WAR 281.
YNT v The State of Western Australia [2021] WASCA 89. ,
JUDGMENT OF THE COURT:
The appellant was convicted of 13 child sex offences following a trial in the District Court. He was sentenced to a total effective sentence of 6 years and 6 months' imprisonment. His convictions were set aside on appeal and a retrial was ordered. On the retrial, he was again convicted of the same 13 offences, but, on this occasion, he was sentenced to a total effective sentence of 9 years' imprisonment. He seeks leave to appeal against that sentence.
There is one ground of appeal. In essence, the appellant contends that the learned sentencing judge erred in imposing a higher sentence because the 'rule of restraint' that applies in sentencing an offender convicted on a retrial required that the same sentence be imposed after the retrial. The appellant submits that the evidence at the retrial was substantially the same as at the original trial and that the original sentence was an appropriate one for this offending. In contrast, the respondent says that there were some differences in the evidence at the retrial and that the first sentence was manifestly inadequate, and thus the rule of restraint had no application.
For the reasons that follow, the appellant has not made out that the rule of restraint applied in the circumstances of this case. That is because the original sentence of 6 years and 6 months' imprisonment was manifestly inadequate and, therefore, did not act to restrain the discretion of the learned sentencing judge on the retrial. There is no ground alleging, and otherwise no suggestion, that the sentence of 9 years' imprisonment is in error for any other reason. In these circumstances, whilst leave to appeal should be granted, the appeal must be dismissed.
Factual circumstances
The factual circumstances on which the learned sentencing judge sentenced the appellant following the retrial were not in dispute. They can be summarised as follows.
For many years the appellant lived in New Zealand. In about May 2011, he moved back to Western Australia to live with his son. His son had two children by a former relationship, a daughter, C, and a son, X. C and X are, therefore, the appellant's biological grandchildren.[1]
[1] ts 416.
C normally resided with her mother, though she had regular contact visits with her father. In 2009, C's mother formed a relationship with another man who had a daughter, M, who was of a similar age to C. C and M were, therefore, in effect stepsisters.[2]
[2] ts 416.
At about the time the appellant returned to Western Australia, an arrangement was made whereby C would go to stay at her father's house on weekends. This included weekends when her father was away for work. The expectation was that this would provide an opportunity for C to get to know the appellant, her grandfather, with whom she had not had much involvement prior to this time. X also went on these weekend visits. M also often went to keep C company. These visits continued for about 18 months.[3]
[3] ts 416.
The offences all occurred during the weekend visits on numerous occasions between May 2011 and January 2013. At this time, C was between 8 and 9 years of age and M was between 8 and 10 years of age.[4]
Count 1
[4] ts 417.
On one occasion when C and her brother, X, stayed overnight at the appellant's son's house, the appellant entered her bedroom and cuddled her. X was asleep in the bed next to her. The appellant sat with her as she was going to sleep. He rubbed her hand, then moved to her arm, then over her breast area, before putting his hand inside her pyjama shorts. He then rubbed her vagina over her underwear, put his hand inside her underwear, rubbed her clitoris, and then inserted his fingers into her vagina, moving them in and out for a short time.[5]
[5] ts 717 - 718.
C held the covers over her face whilst the appellant did this and closed her legs to make it clear she did not like it. At one point he said to her, 'You little bitch', and that he was going to 'fuck' her. He eventually stopped and told C not to tell anyone or he would move back to New Zealand and he would not love her any more.[6]
Count 2
[6] ts 718.
On another night, the appellant went into C's bedroom whilst she was getting ready to go to sleep. He asked her to give him a 'blow job' and persisted in encouraging her to do so. He stood by her bedside, took hold of her head, pulled his pants down and told her to open her mouth.[7]
[7] ts 718.
C kept shaking her head, but eventually did what the appellant asked because she thought he was going to hurt her. He put his penis into her mouth, then he pushed her head back and forth with his penis in her mouth until she began to gag and cough. She told him she did not want to do that again. After he stopped, he told her that if she told anyone he would go back to New Zealand, and that he would kill himself.[8]
Count 3
[8] ts 719.
On another night a few weeks later, C was in her bed at the house, with X asleep next to her. The appellant entered the room and began touching C's breast area over her clothing. He brought up the previous occasion and encouraged her to try it again. She said she did not want to do it, but the appellant insisted.[9]
[9] ts 719.
The appellant stood next to C, pulled his pants down, grabbed her head with his hand and pushed his penis into her mouth, moving it back and forth. On this occasion, a small amount of ejaculate went into C's mouth. She spat it back at him and said she would not do it again. He left the room and she went to sleep.[10]
Count 4
[10] ts 719.
The next incident occurred on another night when M was also staying at the house. C and M were both in the appellant's bed and C was half asleep. The appellant lay next to C and hugged her from behind. He had his arms wrapped around her and rubbed her breast area over her clothing.[11]
[11] ts 719.
The appellant then moved his hand down to the waistband of C's shorts and put his hand inside her underwear. He rubbed her clitoris for a couple of minutes before putting his fingers inside her vagina, moving them back and forth for a while before she told him she wanted to go to sleep. He stopped and they went to sleep.[12]
Count 5
[12] ts 719.
On another occasion, C was in the kitchen of the house, leaning on the island bench, while M and X were in the lounge watching TV. The appellant came up behind C and hugged her. He took hold of her waist and put his hands inside her pants and underwear and rubbed her vagina. He whispered to her that it was more fun because there was a risk he could get caught. After a while she told him she needed to go to the bathroom and left.[13]
Count 6
[13] ts 719 - 720.
On another occasion, when C was staying at the house, she was asleep in the appellant's bed next to M. She woke up to find the appellant's head under the covers and between her thighs. He was licking her vagina with his tongue. He had pulled her pants part way down. She quickly moved away from him and moved her body towards the head of the bed. He pulled his head out and laughed and said to her that he thought it would be fun.[14]
Count 7
[14] ts 720.
On another occasion in the evening, C had finished showering and the appellant was helping her to get dressed. As he was about to help her put her underwear on, he pulled his penis out of his pants and used his other hand to rub his penis against the outside of her vagina. He began rubbing his penis with his hand and then asked her to hold his penis and instructed her to masturbate him which she did for a short time before stopping because she felt uncomfortable.[15]
Count 8
[15] ts 720.
On another occasion during the day C was sitting on the appellant's bed while he talked to her about masturbating. She asked him a question about whether she could get pregnant and he told her that he had had his tubes tied. He then pulled his pants down and asked her if she wanted to see it. She said, 'No', but he began using his hand to masturbate for a short time before ejaculating into a tissue which he showed to her.[16]
Count 9
[16] ts 720.
On another day C, X and M were at the appellant's house watching TV in the lounge room. M was sitting on a couch next to the appellant when he put a blanket over her lap and across his body. He then moved his hand under her underwear and put his fingers inside her vagina and moved them inside her.[17]
Count 10
[17] ts 720.
On another occasion, M and the appellant were again sitting on the couch watching TV. C and X were in another part of the house. The appellant again put a blanket over them before putting his hand inside her underwear and placing his fingers inside her vagina and moving them inside her.[18]
Count 11
[18] ts 720.
On another occasion at the house, M was in the kitchen and C was nearby talking to her. The appellant came towards them and said something before pulling his pants down and exposing his penis. M looked away. He invited M to touch it, but she refused.[19]
Count 12
[19] ts 721.
On another occasion, when M and C were in the bath together at the house the appellant washed them with a bar of soap. He washed M's body, including all over her breasts, before washing the outside of her vagina with the soap and his hand.[20]
Count 13
[20] ts 721.
On another occasion M and C were lying on the appellant's bed. He came in to the room, knelt alongside the bed and rubbed M's body. He rubbed his hands along her body, under the clothing and over her breast area, for a short time.[21]
[21] ts 721.
The details of the offending as between the first trial and the second trial did not vary. The only differences of any significance were that at the first trial the trial judge found that the period over which the offending had occurred was about 12 months, whereas at the second trial the finding was that the offending had occurred over a period of 18 months. The other difference was that at the first trial no victim impact statements were available, whereas at the second trial victim impact statements from both C and M were available and spelled out the significant impact that the offences had had on both victims.
At both trials there was evidence of other uncharged acts and, whilst these acts could not be the subject of punishment, they placed the offending into a broader context and showed that the offences were part of a continuing course of conduct by the appellant.
Sentencing at the first trial
In sentencing remarks following the first trial, the sentencing judge said that the offences were serious and this was reflected in the maximum penalties. She also noted the vulnerability of the victims and that the appellant had taken advantage of a position of trust. She said that while the exact period of the offending was difficult to determine, it occurred over a period of about 12 months and was therefore 'somewhat protracted'. Her Honour said that this showed that the appellant was prepared to exploit the fact that he was getting away with what he was doing.[22]
[22] ts 352.
Her Honour took into account the age of the victims at the time of the offending. She said that the offences had forced premature sexual experiences upon the victims and that this would no doubt leave psychological scarring in their minds for the rest of their lives.[23]
[23] ts 353.
Her Honour referred to the fact that the appellant was 58 years old at the time of the offending and 67 years old at the time he came to be sentenced. He had experienced tragedy in his early life when he witnessed his father's suicide. The appellant had a very strong work history and had been in employment since the age of 13. He had two significant relationships. After the second of these broke down, he turned to alcohol.[24]
[24] ts 353.
Her Honour noted that after his mother died in 2011 the appellant was able to make significant changes in his life. It was at that time he decided to return to Australia, with the intention of meeting his grandchildren. He had the support of his family at that time.[25]
[25] ts 354.
The appellant had used his time in custody productively and had become a trusted prisoner. However, that time had been more difficult because he had been under protection. Her Honour noted that the appellant had a medical condition which he described as a gagging condition and that this had presented some difficulty in prison. However, she said that the mitigation that was afforded by that condition was minimal. She also noted that for a period the prisons were locked down as a result of the COVID pandemic. She accepted that the appellant's period of time on remand had been made more onerous as a result of that.[26]
[26] ts 354 - 355.
Her Honour noted that the appellant had been found guilty after a trial and that there was no evidence of remorse. However, he had no relevant prior criminal record. This had to be balanced against the fact that there were 13 offences which showed that his conduct was not an aberration or out of character. Her Honour said that having regard to the appellant's personal history, including finding his father after his suicide, and the fact that he had no prior criminal history, she intended to reduce the sentences she would otherwise have imposed.[27]
[27] ts 355.
Her Honour referred to the fact that the main sentencing considerations for offences of this kind are general and personal deterrence. Personal circumstances are usually accorded less weight than is the case for other offences. Protection of vulnerable children was also an important consideration.[28]
[28] ts 356.
Her Honour noted that there was no tariff for sexual offences against children, but that the ordinary disposition is a term of immediate imprisonment.[29] She then imposed the following sentences:[30]
[29] ts 356.
[30] ts 357.
Count No
Offence type
Maximum penalty
Penalty imposed
Count 1
Sexual penetration of a child under 13 years contrary to s 320(2) of the Criminal Code (WA).
20 years' imprisonment
3 years 3 months' imprisonment (concurrent)
Count 2
Sexual penetration of a child under 13 years contrary to s 320(2) of the Criminal Code (WA).
20 years' imprisonment
3 years 3 months' imprisonment (concurrent)
Count 3
Sexual penetration of a child under 13 years contrary to s 320(2) of the Criminal Code (WA).
20 years' imprisonment
3 years 6 months' imprisonment (head sentence)
Count 4
Sexual penetration of a child under 13 years contrary to s 320(2) of the Criminal Code (WA).
20 years' imprisonment
3 years 3 months' imprisonment (concurrent)
Count 5
Indecent dealing with a child under the age of 13 years contrary to s 320(4) of the Criminal Code (WA).
10 years' imprisonment
2 years 6 months' imprisonment (concurrent)
Count 6
Sexual penetration of a child under 13 years contrary to s 320(2) of the Criminal Code (WA).
20 years' imprisonment
3 years' imprisonment (concurrent)
Count 7
Indecent dealing with a child under the age of 13 years contrary to s 320(4) of the Criminal Code (WA).
10 years' imprisonment
2 years 6 months' imprisonment (concurrent)
Count 8
Indecent dealing with a child under the age of 13 years contrary to s 320(4) of the Criminal Code (WA).
10 years' imprisonment
2 years 3 months' imprisonment (concurrent)
Count 9
Sexual penetration of a child under the age of 13 years contrary to s 320(2) of the Criminal Code (WA).
20 years' imprisonment
3 years' imprisonment (cumulative upon the sentence for count 3)
Count 10
Sexual penetration of a child under the age of 13 years contrary to s 320(2) of the Criminal Code (WA).
20 years' imprisonment
3 years' imprisonment (concurrent)
Count 11
Indecent dealing with a child under the age of 13 years contrary to s 320(4) of the Criminal Code (WA).
10 years' imprisonment
2 years' imprisonment (concurrent)
Count 12
Indecent dealing with a child under the age of 13 years contrary to s 320(4) of the Criminal Code (WA).
10 years' imprisonment
2 years 6 months' imprisonment (concurrent)
Count 13
Indecent dealing with a child under the age of 13 years contrary to s 320(4) of the Criminal Code (WA).
10 years' imprisonment
2 years' imprisonment (concurrent)
Her Honour said that, having regard to totality considerations, a sentence of 6 years and 6 months' imprisonment was the appropriate total effective sentence. She achieved that sentence by making the term of 3 years and 6 months imposed on count 3 the head sentence and the term on count 9 cumulative. All other sentences were ordered to be served concurrently.[31]
[31] ts 358.
Sentencing at the second trial
After the first trial, the appellant appealed his convictions. The appeal was conceded by the State: see LNE v The State of Western Australia.[32] The appeal was allowed, the judgments of conviction set aside, and a retrial ordered. The State did not appeal against the sentence imposed at the first trial. The appellant was then retried and convicted of the same 13 offences.
[32] LNE v The State of Western Australia [2021] WASCA 146.
In sentencing submissions, the sentencing judge was referred to the decision of this court in Pollock v The State of Western Australia[33] and the general principle that ordinarily a successful appellant should not receive a heavier sentence at a retrial than he or she received at the original trial.[34] This principle is subject to a qualification that a sentencing judge may impose a heavier sentence if the facts disclosed at the retrial are materially different or the sentence originally imposed was manifestly inadequate.[35]
[33] Pollock v The State of Western Australia [2011] WASCA 133.
[34] ts 700.
[35] Pollock v The State of Western Australia [37], [39].
In the course of submissions, the sentencing judge said that, in his view, the sentence of 6 years and 6 months imposed following the first trial was too low. In particular, he said:[36]
And I can say to you that I am satisfied, having considered appropriate sentences, based on the evidence and all the relevant considerations that we'll come to in due course, that, as I've said, 6 years 6 months does not reflect, in my view, the criminality involved in this offending. It might for one of the victims, but not two.
[36] WAB 59.
His Honour noted that the appeal against conviction was conceded by the State and that there was no need for the State to give any consideration to whether the first sentence may have been manifestly inadequate. In response, counsel for the appellant said that the appellant had conducted the appeal himself and did not have the benefit of legal advice that if his appeal was successful and he was convicted at a retrial, he may face a higher sentence.[37]
[37] ts 705.
His Honour said that having reached the conclusion that the original total sentence was insufficient, he considered that the case fell within one of the exceptions to the principle of restraint. He then said:[38]
Having said all that, I'm going to indicate now to you and the State that the sentences I'm going to impose today, subject to further submissions, have been tempered by the principles referred to by Mazza J in Pollock and do not reflect the full sentence that I would have imposed if this had been a first instance trial.
So I'm indicating to [the appellant] that the sentence would have been higher than he will receive today, subject to further submissions from counsel, if he had been sentenced by me as a judge of this court for the first time. … And I say that having regard again to the sentencing considerations which apply by reference to a number of decisions of the Court of Appeal as to what is and what is not appropriate in relation to this type of offending. So in a sense, the sentence today will reflect the principle in Pollock to that extent … But I, as a judge of this court, am not prepared to resentence at a level which I think is not appropriate, having regard to the duty that I have as a judge. … And I should just add that I am not departing lightly from the first sentence. I have reflected upon it and will give full reasons for the position I come to in a moment.
[38] ts 706 - 707.
His Honour said that on any view this was serious offending involving a high level of criminality. He said the offences were aggravated by the young age of the victims and the large age disparity between the appellant and the victims. He said the offending was also serious because it occurred over an extended period of time, just short of 19 months. During this period of time the appellant groomed each of the victims and engaged in increasingly more serious offences against them. He said that the grooming included providing the victims with treats, consistent with masking what he was doing. He said that the offending became increasingly brazen, and the appellant was not deterred by the risk of discovery. He referred to the fact that the appellant was in a position of trust in respect of the victims and abused that trust by committing the offences. He said that the fact that C was a biological granddaughter was a further aggravating factor. He said that the offences were not isolated instances but occurred in the course of an abusive relationship that became normalised such that neither victim could disclose what was occurring. He noted that there were other uncharged acts and that this placed the offending into context.[39]
[39] ts 721 - 722.
His Honour noted that the appellant was aged 68 at the time he was sentenced. He also referred to the appellant's personal circumstances, including his work ethic and lack of a prior criminal record. However, he found no particular mitigation in relation to that material. He did accept that the appellant's health and age were mitigating factors. He also accepted that the appellant cooperated with police by participating in an interview, although he took the opportunity to distance himself from the allegations and did so in a way that showed no respect for the victims or their parents.[40]
[40] ts 724.
His Honour referred to the victim impact statements and read each of those statements out in full. He said that the victim impact statements were consistent with the experience of the court in relation to people who have been sexually abused as children. He acknowledged that the offending had had a substantial impact on both victims and that they would be required to deal with that impact into the future. He referred to the need for a very strong denunciation of the offending conduct and for the sentences to incorporate both personal and general deterrence.[41]
[41] ts 725 - 730.
His Honour referred to a number of decisions regarding sentencing for offences of this nature, including YNT v The State of Western Australia;[42] The State of Western Australia v AHD;[43] JHL v The State of Western Australia[44] and VRE v The State of Western Australia.[45] He also referred to The State of Western Australia v CGT[46] in regard to the consideration of advanced age of an offender. He also referred to Headley v The State of Western Australia[47] and Walters v The State of Western Australia.[48]
[42] YNT v The State of Western Australia [2021] WASCA 89.
[43] The State of Western Australia v AHD [2021] WASCA 13.
[44] JHL v The State of Western Australia [2021] WASCA 222.
[45] VRE v The State of Western Australia [2021] WASCA 185.
[46] The State of Western Australia v CGT [2018] WASCA 226.
[47] Headley v The State of Western Australia [2018] WASCA 37.
[48] Walters v The State of Western Australia [2018] WASCA 3.
His Honour then imposed the following sentences:
Count 1
3 years 6 months' imprisonment
Count 2
3 years 6 months' imprisonment
Count 3
3 years 6 months' imprisonment
Count 4
3 years 6 months' imprisonment
Count 5
18 months' imprisonment
Count 6
3 years 6 months' imprisonment
Count 7
12 months' imprisonment
Count 8
18 months' imprisonment
Count 9
3 years 6 months' imprisonment
Count 10
3 years 6 months' imprisonment
Count 11
12 months' imprisonment
Count 12
18 months' imprisonment
Count 13
12 months' imprisonment
His Honour referred to the totality principle and said that, in his view, having regard to the relevant considerations, the total effective sentence should be a term of 9 years' imprisonment. That was achieved by ordering the sentence of imprisonment on count 1 to be the head sentence and the sentences on counts 7, 9 and 11 to be cumulative. All other sentences were ordered to be served concurrently. The sentence was backdated to take into account time spent in custody.[49]
[49] ts 733 - 735.
Ground of appeal
There is one ground of appeal. It is as follows:[50]
The learned sentencing judge erred in sentencing the appellant to a total effective sentence of 9 years' imprisonment following a retrial, infringing the 'rule of restraint' when regard is had to the sentence of 6 years and 6 months imposed for the same offending following the appellant's first trial.
[50] AB 6.
Appellant's submissions
The appellant submitted that whilst there were some differences between the factual findings on sentence on the first occasion and on the second occasion, they were not such as to justify a different sentence being imposed. Those differences were confined to the period of time over which the offending occurred and the availability of victim impact statements. The period of time over which the offending occurred was not significantly different and it was not suggested that it encompassed any greater quantity of offending conduct. As to the availability of the victim impact statements, the appellant acknowledged that such statements are relevant in sentencing, but noted that the first judge had anticipated the likelihood of impact of the nature described in those statements.[51]
[51] Appeal ts 3 - 4.
The appellant submitted that the total effective sentence imposed following the first trial, though possibly lenient, was within the discretionary range. In these circumstances, it was contended that the principle of restraint required the judge on the retrial not to impose a higher sentence. The appellant submitted that to impose a higher sentence created the perception that the appellant was being punished for pursuing his right to appeal.[52]
[52] AB 12.
During the hearing of the appeal, the question was raised as to whether the principle of restraint only operates as a fetter in circumstances where the original sentence was not manifestly inadequate, or whether it had some broader moderating effect even where the original sentence was manifestly inadequate. In response, senior counsel for the appellant suggested that the policy considerations underlying the principle of restraint meant that the principle should always operate to temper the sentence. Senior counsel accepted that the sentencing judge had referred to this possible aspect of the principle but suggested that it was not reflected in the outcome.[53]
[53] Appeal ts 15.
Senior counsel also submitted that the fact that the State had not appealed the first sentence was an important consideration. She said that even if it was the intention of the State to concede the conviction appeal, the lodging of an appeal against sentence by the State would have put the appellant on notice that the State considered that the original sentence was inadequate. This would have acted as a warning to the appellant that the State did not accept that the original sentence should be imposed after a retrial. The absence of such a warning was relevant to the fairness of the later sentencing proceedings.[54]
[54] Appeal ts 10.
Respondent's submissions
The respondent submits that the factual findings on the second trial were not identical. However, ultimately, senior counsel for the respondent conceded that the differences were not so significant that, in themselves, they would have justified the second sentencing judge imposing a different sentence.[55]
[55] Appeal ts 19 - 20.
The respondent's principal argument was that the sentencing judge was correct in finding that the original sentence of 6 years and 6 months' imprisonment was manifestly inadequate and was not commensurate with the seriousness of the offences. Having regard to the nature of the offences, the age of the victims, the number of offences, the period of time over which they were committed, the age disparity, the breach of trust and the fact that the appellant was convicted after trial, it was submitted that a total effective sentence of 6 years and 6 months’ imprisonment did not adequately reflect the total criminal conduct.[56] In this regard, the State relied on three cases which it suggested were comparable: YNT v The State of Western Australia;[57] UGN v The State of Western Australia[58] and LTT v The State of Western Australia.[59]
[56] AB 23 - 24.
[57] YNT v The State of Western Australia [2021] WASCA 89.
[58] UGN v The State of Western Australia [2021] WASCA 10.
[59] LTT v The State of Western Australia [2022] WASCA 31.
The respondent submitted that if, as contended, the first sentence was manifestly inadequate, the principle of restraint had no application. In these circumstances, the first sentence was irrelevant to the exercise of proper sentencing discretion by the second sentencing judge.[60]
[60] Appeal ts 19.
As to the suggestion that the principle of restraint may have some operation even in circumstances where the original sentence was manifestly inadequate, the respondent submitted that this would be tantamount to the application of a double jeopardy principle to sentencing on retrials. It would be analogous to the double jeopardy principle that formerly applied in State appeals against sentence, but was abolished by statute. No such principle has been recognised in the context of retrials and the respondent submitted that it would be contrary to the statutory requirement under s 6 of the Sentencing Act1995 (WA) to impose a sentence that was commensurate with the seriousness of the offence. To allow a previously imposed, but inadequate, sentence to act as a fetter on discretion would be to take into account an irrelevant consideration.[61]
[61] Appeal ts 16 - 17.
Relevant legal principles
In Williams v The Queen (No 2),[62] Burt CJ (Wickham & Kennedy JJ agreeing) said that when a trial judge comes to sentence following a re-trial the judge must exercise their own judgment and their own discretion. The judge must do so having regard to the offence committed, the circumstances of the offence, the antecedents of the convicted person and all other relevant facts personal to the offender. In addition, the sentencing judge should have regard to the sentence imposed upon the first conviction and be conscious 'of the principle, so-called' that, unless there is some strong ground for not doing so, the sentence passed should not exceed that imposed on the first occasion.
[62] Williams v The Queen (No 2) (1982) WAR 281.
Burt CJ said that this principle was based upon policy and adopted what was said in this regard by Street CJ in Gilmore v The Queen:[63]
The policy consideration underlying the specification of the upper limit on the sentence is twofold. In the first place, a person whose conviction is tainted in that the first trial was defective to an extent not capable of being saved by the proviso, should not, in fairness, be required to run any risk of suffering a heavier sentence on a new trial as a consequence of exposing on appeal the defective nature of the first trial. It is in the public interest in ensuring orderly and proper administration of the criminal law that defects in trials should be challenged and laid bare on appeal. As a corollary to this, it is wrong that any person should suffer ill-founded criminal judgment in consequence of a defective trial, and feel constrained to avoid exposing that defect lest on a new trial a heavier sentence be passed.
In the second place, the passing of a heavier sentence on a new trial could be seen by the convicted person, as well, perhaps, by others in the community at large, as possibly importing some element of retribution by the machinery of criminal justice in consequence of the conviction on the first trial having been successfully overthrown. Any such impression would, of course, be groundless. But, at the same time, it is highly desirable to avoid any possible basis for permitting the operation of the system to be exposed to criticism of such a nature.
[63] Gilmore v The Queen (1979) 1 A Crim R 416, 419.
As important as the principle and the policy considerations underpinning it are, they are based upon assumptions that the facts at both trials are essentially the same and that the first sentence was an appropriate one. It has been recognised that the principle does not apply where the facts are materially different or the first sentence was manifestly inadequate. As to the latter, Burt CJ in Williams (No 2) observed:[64]
But if having regard to the first sentence and the policy considerations to which I have referred, as the trial judge in this case did, and to all other facts relevant to sentence, the sentencing judge is of the opinion that the sentence passed following upon the first conviction was inadequate or inappropriate, then he must act upon that opinion because it is at that point his judgment which is decisive; and it is a judgment which he must make and act upon. It would, I think, be wrong for him to say: 'In my judgment the first sentence was altogether inadequate or inappropriate but nevertheless it was a sentence imposed and therefore I will impose it again'.
[64] Williams v The Queen (No 2) (284).
Burt CJ went on to say that on an appeal the court must look at all the circumstances of the case. It may be relevant to know whether the prosecution appealed against the first sentence. The appeal court may ask itself whether that sentence was one that would have survived a prosecution appeal. His Honour went on to say:[65]
But having done that, if this court is of the opinion that the first sentence was one which had it been ruled upon would have been set aside as being inadequate or inappropriate, and if it be of the opinion that the second sentence was both appropriate and within the range of discretion exercised by the sentencing judge, then it is a sentence that this court should not and indeed cannot set aside.
[65] Williams v The Queen (No 2) (285).
The reasons for the inapplicability of the rule of restraint when the first sentence was manifestly inadequate are readily apparent. Apart from anything else, the requirement to impose a sentence commensurate with the seriousness of the offence excludes any discretion to impose a sentence that is manifestly inadequate.[66]
[66] Green v The Queen [2011] HCA 49; (2011) 244 CLR 462 [33] approving Goddard v The Queen [1999] WASCA 281; (1999) 21 WAR 541 [61].
The policy considerations referred to by Burt CJ in Williams (No 2) were also referred to in the High Court in RH McL v The Queen.[67]In that case McHugh, Gummow and Hayne JJ said:[68]
If the appellant is convicted on any count at the re-trial, the sentencing judge will also have to take into account another important factor in the sentencing process. Ordinarily but not invariably, a successful appellant should not receive a longer sentence after conviction on a re‑trial than he or she received at the original trial. If the sentencing judge at the re-trial thinks that the original sentence was manifestly inadequate, it is open to that judge in the exercise of the sentencing discretion to give a sentence higher than that imposed on the first occasion. But an exercise of discretion by a sentencing judge that increases the original sentence given to the accused is necessarily rare. That is because such an increase may be perceived, by the public and the accused, as containing a retributive element imposed because the accused had successfully appealed against his or her earlier conviction or sentence. If the raising of a sentence after a successful appeal became common, it might discourage appeals. Such a result would be contrary to the public interest, for an organised society has a vital interest in the proper administration of its criminal justice system. Rights of appeal are an important means of preventing the perpetuation of error in criminal trials.
[67] RH McL v The Queen [2000] HCA 46; (2000) 203 CLR 452.
[68] RH McL v The Queen [72].
It is apparent from this that the 'rule of restraint' is, in truth, not a rigid rule, nor is it absolute. It is qualified, and where the qualifications apply it may be appropriate for a sentencing judge on a retrial to impose a different sentence. In Williams (No 2), the appellant was fined after the first trial and sentenced to a term of imprisonment after the retrial, the judge on the retrial being satisfied that that was the appropriate penalty. His appeal against that sentence was dismissed. Similarly, in Pollock the appellant was unsuccessful in an appeal against a significantly more severe sentence imposed on him following his retrial on the basis that the original sentence was manifestly inadequate and the second sentence was within the range of the sentencing judge's discretion.
In Pollock, Mazza JA, with whom Martin CJ and McLure P agreed, referred to Williams (No 2) and RH McL and said:[69]
Where a successful appellant is convicted after retrial, the judicial officer resentencing the offender must exercise his or her own sentencing judgment and discretion. In doing so, the sentencer must have regard to what is sometimes called 'the rule of restraint' (although it is in truth not a rigid rule) that ordinarily a successful appellant should not receive a heavier sentence than he or she received at the original trial. A sentencer may impose a heavier sentence if the facts disclosed at the retrial are different or the sentence originally imposed was manifestly inadequate. Where it is said that the sentence imposed at the original trial was manifestly inadequate, it may be relevant that the sentence imposed at that trial was the subject of a prosecution appeal which was 'derailed' by the successful appeal against conviction.
The policy underlying this approach is not difficult to see. If an offender ended up worse off after a successful appeal, the perception might arise that the offender was being punished for pursuing his right to appeal. Further, if sentences were commonly increased after a successful appeal, appeals would be stifled. This would not be in the public interest because the appellate process is an important means of exposing, remedying and preventing, in the future, errors in criminal proceedings.
On the other hand, if, at the retrial, facts came to light that were not before the court at first instance, which exposed the offending as more serious, there should be no reason why the original sentence should stand. Moreover, if the original sentence was demonstrated to be manifestly inadequate, it would be wrong to allow it to remain.
[69] Pollock v The State of Western Australia [37].
Merits of the appeal
Whilst there were some differences between the first and second trials, those being the finding as to the length of time over which the offending continued and the availability of victim impact statements, those differences were not so significant as to justify a departure from the general rule regarding sentencing on a retrial. The concession by the State in that regard was properly made.
The critical question is whether the sentencing judge was correct in concluding that the original sentence of 6 years and 6 months' imprisonment was manifestly inadequate. In sentencing after a retrial, it is necessary for the judge to make their own assessment of the appropriate sentence having regard to all of the relevant factors. In conducting that exercise, the judge will necessarily come to a view that the first sentence either is or is not consistent with the proper exercise of that judge's discretion. It is in this sense that the sentencing judge may reach a conclusion that the original sentence was manifestly inadequate and, thus, does not act as a fetter upon their discretion.
The offending in this case had a number of significant aggravating features, including the age disparity, the breach of trust, the persistence of the offending and the use of grooming and threats to ensure compliance and silence. As the sentencing judge correctly recognised, the fact that there were two victims was also an important consideration.
Bearing in mind the maximum penalties for the offences referred to at [35] above, there can be no doubt that the individual immediate terms of imprisonment that were imposed were not more than was appropriate. Some accumulation of sentences was required, subject to totality considerations. The total effective sentence should properly reflect the full extent of the offending, including the number of offences committed and the fact that there were two victims.
Whilst there is no tariff for sexual offences, comparable cases may provide an indication of whether the sentence originally imposed was manifestly inadequate. In LTT the offender was convicted on his pleas of guilty of 17 sexual offences against his granddaughter when she was aged between 7 and 11. The offences related to five occasions spanning a period of about four years and were representative of a course of abuse. The offender in that case was given a 25% discount for his early pleas of guilty. A total sentence of 8 years and 11 months' imprisonment was imposed. An appeal against that sentence on totality grounds was dismissed.
In YNT the offender was convicted after trial of two counts of sexually penetrating a child under the age of 13. The counts were representative of a broader course of conduct that occurred over a seven‑month period. One of the offences involved the use of force and the offences had a severe psychological impact on the victim. A total sentence of 6 years' imprisonment was imposed. An appeal against both the individual sentences and the total sentence was dismissed.
In UGN the offender was convicted after trial of two counts of sexually penetrating a child under the age of 13. The offender was a trusted family friend. The offences were representative a broader course of conduct that continued over about five years, beginning when the child was aged 7. The offender groomed the victim by buying her treats and clothes and giving her money. The offending had a profound effect on the victim. A total sentence of 8 years and 6 months' imprisonment was imposed. An appeal against that sentence on totality grounds was dismissed.
As has often been observed, comparison with a few cases can provide only limited assistance in discerning whether a total effective sentence for a series of sexual offences breaches the first limb of the totality principle. Among the reasons this is so are the variations in the circumstances of the respective offending and offenders, and recognition of the discretionary nature of each sentencing exercise. Nevertheless, the following broad observations may be made. The offending in this case was at least as serious as that in LTT, with the additional factors that here there were two victims and the appellant was convicted after trial. It was arguably more serious than either YNT or UGN, having regard to the fact that here there were two victims and there were more offences. The cases referred to are reasonably comparable and provide some support for the conclusion that the first sentence was manifestly inadequate.
Having regard to all relevant circumstances and sentencing factors, including the number and circumstances of the offences, involving two victims, taken together with the maximum penalties and the sentences imposed in comparable cases, in our respectful view, even giving full weight to the mitigating factors in the appellant's favour, the first sentence was manifestly inadequate. We are satisfied that the sentencing judge was correct to conclude that the original sentence of 6 years and 6 months' imprisonment was manifestly inadequate in that it was not a proper reflection of the total criminal conduct, notwithstanding the appellant's personal circumstances.
Once it is concluded that the first sentence was inadequate, the rule of restraint has no work to do. To allow an inadequate sentence to act as a fetter, or even to influence, the determination of a sentence following a retrial would be to compound the original error. If the original sentence was erroneously lenient, then it could not properly be a relevant consideration when the appellant came to be resentenced. To take into account the earlier sentence in such circumstances would be inconsistent with the requirement to impose a sentence that is commensurate with the seriousness of the offence.[70]
[70] Sentencing Act s 6.
Nor do the policy considerations justify the general rule having any application where the first sentence was manifestly inadequate. The purpose of the rule is to ensure that convicted offenders are not deterred from appealing and that there is no perception that a successful appellant has been punished for bringing an appeal. That perception could not reasonably arise where the sentence originally imposed was manifestly inadequate and the sentencing judge has stated that that is the reason for imposing a different sentence.
As to the deterrent effect, a convicted person who has received a manifestly inadequate sentence may be deterred from bringing an appeal against conviction for fear a higher sentence may be imposed on a retrial. However, that risk must be viewed in the context of the right of the State to appeal against a sentence. That right would reduce the likelihood of the risk arising. In any event, the interest that a convicted person has in the original sentence could only be a legitimate consideration if that sentence was imposed in the proper exercise of sentencing discretion. The policy objective of not deterring possible conviction appeals operates in the framework of the assumption that the original sentencing discretion was properly exercised. It does not incorporate an element of compensating a successful appellant for being exposed to the risk of being resentenced regardless of whether the original sentence was an appropriate one. No question of fairness to the appellant arises in circumstances where the first sentence was so inadequate as not to justify a reasonable expectation that it would be imposed again. In such a case, insofar as a successful appellant's expectations are disappointed by the imposition of a higher sentence after a retrial, that disappointment is outweighed, and justified, by the overarching need to ensure that the sentence imposed is within the bounds of a proper exercise of discretion in imposing a sentence commensurate with the seriousness of the offence(s).
We recognise that it has been observed that the parity principle operates to moderate a sentence even where the sentence imposed on the co-offender is adjudged to be manifestly inadequate. In such cases, some authorities have suggested that the court sentencing the second offender should impose a sentence at or near the bottom of the range of appropriate sentences, so as to minimise the second offender's sense of grievance.[71] However, the policy considerations underpinning the parity principle - namely the norm of equal justice and the avoidance of an objectively justified sense of grievance in relation to sentences as between co‑offenders - have no application to, or analogy with, the context in which the rule of restraint falls to be considered.
[71] See for example Green v The Queen [33]; Capper v The Queen (1993) 69 A Crim R 69, 74; Goddard v The Queen [30] - [31]; R v Doan [2000] NSWCCA 317; (2000) 50 NSWLR 115 [43], [51].
In RH McL, Kirby J, who was in dissent, expressed the view that the rule of restraint was a species of the double jeopardy principle that formerly applied in State appeals against sentence, but was abolished by statute.[72] However, that view did not command the support of those in the majority and, with respect, we would not adopt it. Rather, in our view, the 'rule' of restraint is properly seen as a distinct set of principles operating in the specific context of sentencing after a successful appeal by the offender.
[72] RH McL v The Queen [141] - [142].
For these reasons there is no merit in the suggestion that the rule of restraint may continue to operate to moderate a sentence, notwithstanding the inadequacy of the original sentence. There is no proper foundation for such a suggestion in the authorities. Insofar as the learned sentencing judge considered that the principle did have a continuing moderating effect (see [41] above) he was in error, but it was an error that favoured the appellant.
We do not accept the appellant's suggestion that it was incumbent on the State to lodge an appeal against the first sentence if it believed it to be inadequate in order to put the appellant on notice of the risk of a higher sentence being imposed on a retrial. The purpose of an appeal by the State is not to act as notice to a convicted person of the State's view of that sentence. State appeals are brought to ensure the proper application of sentencing principle. The failure of the State to bring an appeal against sentence does not indicate that it accepts that the sentence imposed at first instance was correct and within the range of appropriate discretion. In any event, where a conviction appeal is to be conceded, it cannot necessarily be expected that the State would bring an appeal against sentence. Furthermore, whilst the appellant was not represented on the conviction appeal, that will often not be the case. It would be expected that competent counsel would advise an appellant of the possible risk. The reference in Williams (No 2) to it being a relevant consideration whether the State had appealed the first sentence was made in the context of the task of the appeal court; it was not a suggestion that a State appeal was necessary to put the appellant on notice of the risk of an increased sentence. That is clear from Burt CJ's reference to whether the sentence was one that would have survived a prosecution appeal.[73]
[73] Williams v The Queen (No 2) (283).
Conclusion
Whilst we would grant leave to appeal, the ground has not been made out. The appeal must be dismissed.
Orders
1.Leave to appeal granted.
2.Appeal dismissed.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
JS
Associate to the Honourable Justice Hall
5 JANUARY 2023
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