YDN v The State of Western Australia

[2018] WASCA 62

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT :   THE COURT OF APPEAL (WA)

CITATION:   YDN -v- THE STATE OF WESTERN AUSTRALIA [2018] WASCA 62

CORAM:   MAZZA JA

MITCHELL JA

BEECH JA

HEARD:   9 APRIL 2018

DELIVERED          :   4 MAY 2018

FILE NO/S:   CACR 169 of 2017

BETWEEN:   YDN

Appellant

AND

THE STATE OF WESTERN AUSTRALIA

Respondent

ON APPEAL FROM:

Jurisdiction              :   DISTRICT COURT OF WESTERN AUSTRALIA

Coram:   Eaton DCJ

File Number            :   KUN 57 of 2016

Catchwords:

Criminal law - Appeal against sentence - Indecent dealing with lineal relative under the age of 16 years - sexual penetration of lineal relative under the age of 16 years - sexual penetration of lineal relative who is 18 or more years old - possession of child exploitation material - supply a prohibited drug namely methamphetamine - possess prohibited drug namely cannabis with intent to sell of supply - possess or copy an indecent or obscene article - possess a prohibited drug namely methamphetamine - possess drug paraphernalia on which there was a prohibited drug or plant - Whether primary judge erred in application of s 9AA of Sentencing Act 1995 (WA) - Whether individual sentences manifestly excessive - whether total effective sentence infringed totality principle

Legislation:

Criminal Code (WA) s 329
Misuse of Drugs Act 1981 (WA) s 6
Sentencing Act 1995 (WA) s 9AA

Result:

Appeal allowed
Appellant resentenced

Category:    B

Representation:

Counsel:

Appellant	:	Mr A J Robson
Respondent	:	Mr R G Wilson

Solicitors:

Appellant	:	Legal Aid Commission of WA
Respondent	:	State Director of Public Prosecutions

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

Apkarian v The State of Western Australia [2015] WASCA 67

Burnes v The State of Western Australia [2017] WASCA 77

FWB v The State of Western Australia [2016] WASCA 118

Gaskell v The State of Western Australia [2018] WASCA 8

Hill v The State of Western Australia [2014] WASCA 150

KAT v The State of Western Australia [2017] WASCA 11

LJH v The State of Western Australia [2016] WASCA 155

McGarry v the Queen [2001] HCA 62; (2001) 207 CLR 121

Ness v The State of Western Australia (No 2) [2013] WASCA 56

Salkilld v The State of Western Australia [2017] WASCA 168

Sathipittayayudh v The State of Western Australia [2015] WASCA 152

SCN v The State of Western Australia [2017] WASCA 138

The State of Western Australia v Baldini [2015] WASCA 39; (2015) 249 A Crim R 198

Tirkot v The State of Western Australia [2018] WASCA 41

Tran v The State of Western Australia [2013] WASCA 77

REASONS OF THE COURT:

Summary

1. On 4 August 2017, the appellant received a total effective sentence of 13 years 6 months' imprisonment in respect of a number of offences.  In general terms, the charges concerned sexual offences committed by the appellant against his daughter when she was between 15 and 18 years old, possession of child exploitation material and drug offences.  The appellant now appeals against the sentences imposed for those offences. 

2. The sentencing judge indicated that he applied a discount of 25% for a plea of guilty at the earliest reasonable opportunity under s 9AA of the Sentencing Act 1995 (WA). Despite that indication, the sentencing judge imposed the maximum available penalty of 3 years' immediate imprisonment for three offences of sexual penetration of a lineal relative who was over the age of 18 years. Ground 1 alleges that the sentencing judge erred in law in failing to apply the stated reduction under s 9AA, while ground 2 alleges that the individual sentences imposed for those offences are manifestly excessive. As the State properly concedes, these grounds are established. The sentences of 3 years' immediate imprisonment imposed for each of those offences should be set aside, and in each case a sentence of 15 months' immediate imprisonment substituted.

3. Ground 4 contends that a sentence of 18 months' immediate imprisonment imposed for a non-commercial supply of 0.1 g of methamphetamine was manifestly excessive.  That ground is established.  The sentence for that offence should be set aside and a sentence of 4 months' immediate imprisonment substituted.  

4. Given that grounds 1, 2 and 4 are established, it is unnecessary to deal with:

   (1)ground 3, which contends that a sentence of 6 years' immediate imprisonment imposed for sexually penetrating a lineal relative under the age of 16 years was manifestly excessive; or

   (2)ground 5, which contends that the total effective sentence of 13 years 6 months' immediate imprisonment infringed the totality principle. 

5. It is appropriate for this court to resentence the appellant, forming its own view as to the appropriate individual sentences and total effective sentence.  A total effective sentence of 11 years 6 months' immediate imprisonment should be substituted.

Offences and sentences

1. The offences, and the sentences imposed in respect of each offence, are set out below.

Charge No	Offence	Date of offence	Sentence[1]	Concurrent/ cumulative
Indictment KUN 57 of 2016
1	Indecent dealing with a child under 16 years of age who is a lineal relative[2]	Unknown b/n 13/4/13 and 1/1/15	3 years	Concurrent
2	Sexual penetration of a child under 16 years of age who is a lineal relative[3]	On or about 2/12/13	6 years	Head sentence
3	Sexual penetration of a child who is a lineal relative[4]	Unknown b/n 13/4/13 and 1/1/15	3 years	Concurrent
4	Sexual penetration of a child who is a lineal relative[5]	Unknown b/n 13/4/13 and 1/1/15	3 years	Concurrent
5	Sexual penetration of a child who is a lineal relative[6]	Unknown b/n 13/4/14 and 1/1/16	4 years 6 months	Concurrent
6	Sexual penetration of a child who is a lineal relative[7]	Unknown b/n 31/12/14 and 14/4/16	4 years 6 months	Cumulative
7	Sexual penetration of a person who is a lineal relative of or over the age of 18 years[8]	Unknown b/n 30/6/16 and 1/8/16	3 years	Concurrent
8	Sexual penetration of a person who is a lineal relative of or over the age of 18 years [9]	On or about 5/7/16	3 years	Concurrent
9	Sexual penetration of a person who is a lineal relative of or over the age of 18 years [10]	On or about 19/8/16	3 years	Concurrent
10	Possession of child exploitation material[11]	24/8/16	1 year 6 months	Cumulative
Section 32 Notice
KR 842/16	Supply a prohibited drug (methamphetamine)[12]	Between 21/8/16 and 22/8/16	1 year 6 months	Cumulative
KR 843/16	Possess a prohibited drug (cannabis) with intent to sell or supply[13]	24/8/16	6 months	Concurrent
KR 844/16	Possess or copy an indecent or obscene article[14]	24/8/16	$500
KR 846/16	Possess a prohibited drug (methamphetamine)[15]	24/8/16	6 months	Concurrent
KR 847/16	Possessed drug paraphernalia on which there was a prohibited drug or plant[16]	24/8/16	$200
Total Effective Sentence		13 years 6 months

[1] References to time periods are to terms of immediate imprisonment.  References to monetary amounts are to fines.

[2] Contrary to s 329(4) of the Criminal Code (WA).

[3] Contrary to s 329(2) of the Criminal Code.

[4] Contrary to s 329(2) of the Criminal Code.

[5] Contrary to s 329(2) of the Criminal Code.

[6] Contrary to s 329(2) of the Criminal Code.

[7] Contrary to s 329(2) of the Criminal Code.

[8] Contrary to s 329(7) of the Criminal Code.

[9] Contrary to s 329(7) of the Criminal Code.

[10] Contrary to s 329(7) of the Criminal Code.

[11] Contrary to s 220 of the Criminal Code.

[12] Contrary to s 6(1)(c) of the Misuse of Drugs Act 1981 (WA).

[13] Contrary to s 6(1)(c) of the Misuse of Drugs Act.

[14] Contrary to s 59(5) of the Classification (Publications, Films and Computer Games) Enforcement Act 1996 (WA).

[15] Contrary to s 6(2) of the Misuse of Drugs Act.

[16] Contrary to s 7B(6) Misuse of Drugs Act 1981 (WA).

Circumstances of offending

Offending against daughter

1. The following facts in relation to the circumstances of the appellant's offending are taken from the sentencing judge's findings and the facts alleged by the prosecutor, which were not disputed by the appellant. 

2. The victim of the sexual offences was the appellant's daughter, to whom we shall refer as E, who was born in April 1998.  When E was very young, her mother took E to the Northern Territory.  E was removed from her mother by authorities in the Northern Territory and placed in foster care with a woman to whom we will refer as B.  E remained in the care of B, and attended school in the Northern Territory, until she was about 8 years old.

3. When she was about 8 years old, E was sexually abused by another child who was also in B's care.  Child welfare authorities intervened and E was removed from B's home.  The appellant was contacted and travelled from his home in a Kimberley town to collect E.  E remained in the appellant's care after that time.

4. The appellant and E moved to a different Kimberley town in late 2012.  At this time the appellant was living with a woman to whom we will refer as R.  The appellant and R had a daughter together.  R also had a daughter to a previous relationship.

5. In early 2013, the appellant's relationship with R broke down, and R left their home with her two children.  E remained with the appellant living in the house.  E turned 15 years old in April 2013.

6. From about mid-2013, the appellant began to treat his daughter as his sexual partner.  They initially consoled each other over the departure of R with cuddles and hugs, activity which might be regarded as normal in circumstances of a loss or family crisis.  However, this soon became entirely inappropriate contact of a sexual nature leading to the offences complained of in counts 1 - 9 of the indictment.

7. The sexualised conduct began with the appellant massaging E's breasts, which is the subject of count 1 on the indictment.  On Monday, 2 December 2013 in the appellant's bedroom, they engaged in sexual intercourse for the first time.  The appellant penetrated E's vagina with his penis whilst wearing a condom.  This was the subject of count 2 on the indictment.  The condom broke during the act of intercourse, and the appellant withdrew.  The following day, E attended a hospital where she was supplied with a 'morning after' pill as well as an implanted contraceptive device for on-going protection.  Thereafter, regular intercourse took place between the appellant and E.

8. The sentencing judge referred to this sexual penetration as occurring 'without consent'.[17]  It is not clear whether the sentencing judge was referring to the incapacity of a child under the age of 16 to consent to sexual penetration.  On appeal, no issue is taken with that observation.[18]

   [17] ts 48.

   [18] Appeal ts 4.

9. The ongoing sexual conduct included regular occasions on which the appellant either introduced his penis into E's mouth or she sucked his penis.  On several of those occasions, the appellant took photographs or made videos of E doing so.  Count 3 was a representative count alleging that the appellant sexually penetrated E by introducing his penis into her mouth when she was a child over 16 years of age.

10. During the offending period, the appellant performed cunnilingus on E on three to four occasions.  Count 4 was a representative count alleging sexual penetration in that manner when E was a child over the age of 16 years.

11. On an unknown date when E was about 16 years old and they were still living in the house, the appellant asked E if she would like to engage in anal sex.  E agreed, and the appellant pushed the tip of his penis into her anus.  The appellant tried to push it in further, but E told him to stop as she was in pain.  The appellant complied with that request.  This is the subject of count 5 on the indictment.

12. It may be noted that the trial judge appears to have thought the above incident occurred after E's 18^th birthday (the date of which he misstated).[19]  Again, no issue in relation to that observation is taken on appeal.[20]

    [19] ts 48.

    [20] Appeal ts 5, 15.

13. In early 2015, the appellant and E were evicted from the house and began living in a villa at a caravan park.  Whilst at the caravan park, when E was between 17 and 18 years old, the appellant again asked E if she would like to try anal sex.  He pushed the tip of his penis into E's anus.  She again told him to stop when he tried to push his penis further into her anus due to it causing too much pain.  That is the subject of count 6 on the indictment.

14. On an unknown date when E was 18 years old, the appellant caused E to perform fellatio on him.  He took a video of the incident.  This is the subject of count 7 on the indictment, which alleges that the appellant sexually penetrated E by introducing his penis into her mouth.

15. Counts 8 and 9 concern incidents on about 5 July and 19 August 2016 when the appellant engaged in sexual intercourse with E, who was then 18 years old, penetrating her vagina with his penis. 

16. During the offending period, the appellant and E engaged in sexual contact between 2 - 5 times every week.

17. The relationship between the appellant and E came to light when police executed a search warrant at the caravan park villa on 24 August 2016, and found the appellant in bed with E and located photographs and videos on electronic equipment.  The appellant was interviewed and made some admissions about the offending, although he denied engaging in sexual contact with E before she was 16 years old.

Child exploitation material

1. Count 10 on the indictment charged the appellant with possession of child exploitation material, in the form of images and videos.  This material was found on a variety of electronic devices located during the search of the villa on 24 August 2016.  The material was in the following categories:

   (1)122 items of class 1 material (depicting children with no sexual activity).

   (2)5 items of class 2 material (depicting non-penetrative sexual activity between children or solo masturbation by a child).

   (3)74 items of class 3 material (depicting non-penetrative sexual activity between child(ren) and adult(s)).

   (4)84 items of class 4 material (depicting child(ren) engaged in penetrative sexual activity with child(ren) or adults).

   (5)1 item of class 5 material (depicting children involved in sadism, bestiality or humiliation).

   (6)6 items of class 6 material (images of anime, cartoons, comics and drawings depicting children engaged in sexual activity or poses).

2. The sentencing judge observed that many of the photographs and videos depicted E in sexual poses, some where she was penetrating herself and some where she was sucking the appellant's penis.[21] The sentencing judge observed that the images of E were from the age of 15 ‑ 18 years. Of course, only the images of E when she was under the age of 16 would constitute 'child exploitation material' for the purposes of s 220 of the Criminal Code.[22]

Drug and other offences

[21] ts 49.

[22] See s 217A of the Criminal Code.

1. Between 5.00 pm on 21 August 2016 and 5.00 am on 22 August 2016, the appellant was contacted by a friend asking for methamphetamine.  The appellant met the friend with approximately 0.1 g of methamphetamine, which they consumed together.  The appellant then returned home with the remaining quantity of methamphetamine.  He admitted this supply when interviewed by police.  This conduct is the subject of charge KR 842/16.

2. On execution of the search warrant at the appellant's villa on 24 August 2016, police located 20 g of cannabis in different parts of the appellant's bedroom, $4,050 in cash, 0.1 g of methamphetamine and two glass smoking implements.  When interviewed by police, the appellant said that some of the cannabis was for personal use, the cash was a result of selling cannabis and the methamphetamine was for personal use.  The possession of the cannabis, methamphetamine and smoking implements were respectively the subject of charges KR 843/16, 846/16 and 847/16.

3. The appellant was also found in possession of a photograph depicting a sexual act between a horse and an adult female, which was the subject of charge KR 844/16.

Personal circumstances

1. The appellant was 44 years old at the date of sentence, and was aged between 40 and 43 years at the time of the offences.  His prior criminal record consisted of predominantly drug and traffic offences for which he received fines in the Magistrates Court between 2005 and 2016.

2. The appellant was the only child of parents who moved about due to his father's membership of defence services.  The appellant made reasonable progress in school until year 8, when his grades began to deteriorate.  He left school in year 11 and joined the army, from which he was discharged at the age of 26 years.  The appellant subsequently worked in various low or unskilled occupations, and became involved in intermittent seasonal work in the commercial fishing industry in about 2013.  His substance dependency affected his ability to maintain steady work and to forge and maintain appropriate relationships. 

3. The appellant has had two significant adult relationships.  The first was with E's mother, which ended when she left for the Northern Territory when E was about 2 years old.  The second was with R, who left the appellant at a time when he was abusing substances.  The appellant was dealing in drugs in order to support his cannabis and methamphetamine habit.

4. Pre‑sentence and psychological reports indicated that the appellant was aware that his relationship with E was wrong, but demonstrated a lack of insight as to the damage to E resulting from the offence and his responsibilities as a parent.

Inferred error - general principles

1. Grounds 2 - 5 assert inferred error.  The general principles governing appeals contending that error should be inferred on the basis that an individual sentence is manifestly excessive, or a total effective sentence infringes the totality principle, are well established:[23]

   (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, 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 may be softened by an order that it be served concurrently with sentences imposed in relation to the other counts.  A relatively light sentence 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 outside the available sentencing range.

   [23] The following statement of the general principles is taken from the judgment of the court in Salkilld v The State of Western Australia [2017] WASCA 168 [48].

Grounds 1 and 2: offences against s 329(7) of the Criminal Code

1. Counts 7 - 9 on the indictment alleged offences against s 329(7) of the Criminal Code. Section 329(7) provides that a person who sexually penetrates a person of or over the age of 18 years who the offender knows is his lineal relative is guilty of a crime and is liable to imprisonment for 3 years. Absence of consent is not an element of this offence.

2. The sentencing judge correctly identified the maximum penalty of 3 years’ imprisonment for each of counts 7 - 9.[24]  His Honour imposed the maximum penalty of 3 years' immediate imprisonment in respect of each of counts 7 - 9.  His Honour did so despite indicating that he would afford the appellant 'the maximum available, being 25 per cent, by way of a discount on any term of imprisonment I impose'.  The sentencing judge did so in recognition that the prosecution of the matters to trial and the need for E to give evidence had been avoided.[25]

   [24] ts 50

   [25] ts 53.

3. Section 9AA of the Sentencing Act provides that, if a person pleads guilty to a charge, the court may reduce the head sentence for the offence in order to recognise the benefits to the State, and to any victim of or witness to the offence, resulting from the plea. The 'head sentence' is the sentence that the court would have imposed if the offender had been found guilty after a plea of not guilty and there were no mitigating factors. By s 9AA(4), the court must not reduce a fixed term by more than 25%. The court may only reduce a fixed term by 25% if the offender pleaded guilty, or indicated that he or she would plead guilty, at the first reasonable opportunity.[26]

   [26] As to the operation of s 9AA of the Sentencing Act generally, see KAT v The State of Western Australia [2017] WASCA 11 [85] - [89] and cases there cited.

4. The 'head sentence' to which the 25% reduction proposed by the sentencing judge was to be applied could not have been longer than the maximum available penalty of 3 years' imprisonment for the offences against s 329(7) of the Criminal Code. The reduction of the head sentence by 25% could therefore not have resulted in an ultimate sentence for the offences against s 329(7) which was greater than 2 years 3 months' imprisonment. That the ultimate sentences for each of those offences was the maximum penalty of 3 years' imprisonment means that the sentencing judge must have erred in law in applying s 9AA of the Sentencing Act to those offences.  Ground 1 is established.

5. Further, when account is taken of the mitigating factor of the appellant's plea of guilty at the first reasonable opportunity, the maximum penalty cannot be reasonably regarded as commensurate with the seriousness of those offences. Under s 6 of the Sentencing Act, the seriousness of an offence, with which the sentence must be commensurate, is to be determined by taking into account matters which include any mitigating factors.  As the sentencing judge could not have arrived at the maximum penalty as to the ultimate sentence if proper sentencing principles were applied, error of principle is to be inferred from the outcome of the sentencing exercise.

6. The sentences for the offences against s 329(7) of the Criminal Code were ordered to be served wholly concurrently with other sentences, and so did not increase the total effective sentence.  However, it remains the case that those individual sentences could not have been imposed, even concurrently, on any proper exercise of the sentencing discretion.

7. It follows, as the State properly concedes, that grounds 1 and 2 are established.  The sentences for counts 7 - 9 on the indictment should be set aside and the appellant re-sentenced for those offences. 

Ground 4: sentence for the supply of methamphetamine

1. Ground 4 contends that the sentence of 18 months' imprisonment imposed in respect of charge KR 842/16, concerning the supply of 0.1 g of methamphetamine on 21 ‑ 22 August 2016, was manifestly excessive.

2. At the relevant time, the maximum penalty for an offence against s 6(1) of the Misuse of Drugs Act in respect of methamphetamine was 25 years' imprisonment and a fine of $100,000.[27]

   [27] Section 34(1) of the Misuse of Drugs Act.

3. As was noted in The State of Western Australia v Baldini,[28] it is the experience of the courts that illicit drugs cause or materially contribute to a very significant proportion of the criminal offences committed in this State, either as a result of users acting under their influence or because of the need to finance or secure a supply of drugs. There are often strong financial incentives to deal in prohibited drugs. Further, significant public resources are devoted to the difficult task of detecting and apprehending persons involved in the supply and distribution of illicit drugs. It is for these reasons that in sentencing for offences under s 6(1) of the Misuse of Drugs Act, significant weight is given to general deterrence with the consequence that mitigating circumstances personal to the offender, including age and good character, are accorded less weight. The overwhelming majority of offenders convicted of offences against s 6(1) of the Act are sentenced to terms of immediate imprisonment. The imposition of a suspended term is, as a matter of fact, exceptional.

   [28] The State of Western Australia v Baldini [2015] WASCA 39; (2015) 249 A Crim R 198 [23]-[28].

4. It is also well established that the quantity of the drugs in question is not generally the chief factor to be taken into account, but it is a matter of importance.  In part, that is because it can be presumed that the greater the quantity the greater the harm which may be done to the community.  The nature and level of the offender's participation in drug dealing or trafficking within a particular organisation or generally and whether the offending was committed for personal gain are highly significant.[29]

   [29] See, for example, the recent decision in Tirkot v The State of Western Australia [2018] WASCA 41 [61].

5. Commercial dealing in even very small quantities of prohibited drugs can attract significant terms of immediate imprisonment.  This is illustrated by a number of cases cited by the State where sentences of 12 months' imprisonment were imposed for selling very small quantities of heroin.[30] 

   [30] Ness v The State of Western Australia (No 2) [2013] WASCA 56; Apkarian v The State of Western Australia [2015] WASCA 67 and Tran v The State of Western Australia [2013] WASCA 77.

6. However, the present case did not involve the appellant selling methamphetamine, or otherwise obtaining any commercial reward for the 0.1 g of methamphetamine he shared with a friend.  Despite the absence of the commerciality which was found to exist in the cases referred to in the previous paragraph, the appellant received a significantly higher sentence than the sentences imposed in those cases.  It may also be noted that, while the appellant admitted selling cannabis, there was no admission or finding that he sold methamphetamine.  It is also relevant that the foundation for this charge was the appellant's admission during the recorded search of his villa. 

7. The harshness of the sentence of 18 months' imprisonment imposed for this offence was not ameliorated by an order that it be served concurrently or partly concurrently with other sentences.

8. In light of the circumstances of the offence, the appellant's plea of guilty at the earliest reasonable opportunity, the appellant's cooperation with police and the absence of any prior convictions involving methamphetamine, the sentence of 18 months' imprisonment, to be served cumulatively upon other sentences, was unreasonable or plainly unjust.  While a sentence of immediate imprisonment was warranted in all the circumstances, a cumulative sentence of 18 months' imprisonment is not capable of being regarded as commensurate with the seriousness of this offence.

9. In our view, ground 4 is established.  The sentence of 1 year 6 months' immediate imprisonment should be set aside and the appellant resentenced for that offence.

Other grounds

1. Ground 3 contends that the sentence of 6 years' immediate imprisonment imposed for count 2 on the indictment was manifestly excessive. 

2. Ground 5 alleges that the total effective sentence of 13 years 6 months' imprisonment infringed the totality principle. 

3. We have concluded that the sentences imposed for counts 7 ‑ 9 on the indictment and charge KR 842/16 should be set aside and substituted with different sentences. Further, under s 41(2) of the Criminal Appeals Act 2004 (WA), this court may vary the other sentences which were imposed at the same time and which took into account the sentences which have been set aside.

4. As the sentencing judge's discretion miscarried in relation to one of the individual sentences forming part of the total effective sentence, the total effective sentence should be set aside and this court must exercise the sentencing discretion, afresh and for itself, on all aspects of the sentences imposed.[31]  In these circumstances, there is no utility in determining grounds 3 and 5.

   [31] Sathipittayayudh v The State of Western Australia [2015] WASCA 152 [28]; Burnes v The State of Western Australia [2017] WASCA 77 [41] and Gaskell v The State of Western Australia [2018] WASCA 8 [152], applying the principle stated in McGarry v the Queen [2001] HCA 62; (2001) 207 CLR 121 [9] to sentences imposed at the same time for multiple offences.

Resentencing

Plea of guilty: s 9AA of the Sentencing Act

1. We are of the view that a reduction of 25% under s 9AA of the Sentencing Act is appropriate in this case in respect of all offences for which the appellant is to be sentenced to imprisonment. Although in respect of many charges the evidence against the appellant was strong, the benefit to E in not having to testify was very significant. In these circumstances it is an appropriate exercise of the discretion under s 9AA of the Sentencing Act to give the appellant the full discount available on a plea of guilty at the first reasonable opportunity.

Count 2 on the indictment

1. Count 2 on the indictment alleges an offence against s 329(2) of the Criminal Code.  Count 2 alleged that the appellant penetrated E's vagina with his penis when she was under the age of 16 years, knowing that she was his lineal relative.  As indicated above, this charge related to the first occasion on which the appellant engaged in sexual intercourse with E, at a time when she was 15 years old. 

2. We take account of the maximum penalty for an offence against s 329(2) of the Criminal Code in circumstances where the child is under the age of 16 years which is imprisonment for 20 years.  That compares to a maximum penalty of 10 years' imprisonment where the child is over the age of 16 years.[32] 

   [32] Section 329(9) of the Criminal Code.

3. We also take account of the observations made by Buss JA, with whom other members of the court agreed, in FWB v The State of Western Australia:[33]

   The primary sentencing considerations for offences of the kind committed by the appellant are appropriate punishment of the offender and personal and general deterrence, having regard to the need to protect vulnerable children. 

   It is well-established that in cases of intra-familial sexual abuse, matters personal to the offender are of less mitigatory weight than might otherwise be the case.  The fact that an offender is otherwise of good character has only little weight because the offences are of a kind that, until revealed, generally do not impact on other people or upon their perception of the offender. 

   …

   There is no 'tariff' for offences of the kind committed by the appellant (or for sex offences generally) because of the great variation that is possible in the circumstances of the offending and the offenders.  The sentence to be imposed in a particular case depends on its individual facts and circumstances, having regard to the maximum penalty and all relevant sentencing factors. (citations omitted)

   [33] FWB v The State of Western Australia [2016] WASCA 118 [52] - [53], [57].

4. Count 2 on the indictment represents a serious example of an offence against s 329(2) of the Criminal Code involving a child under the age of 16 years.  The appellant knew that E was in a vulnerable position by reason of past sexual abuse which she suffered and the family separation which she had experienced (from her mother, her foster mother and, most recently, her step-mother).  She lacked a maternal figure.  She was dependent on the appellant for emotional and other support.  Rather than discharge his parental duty to provide protection and support, the appellant used E for his own sexual gratification.  The charged offence was the first occasion on which this conduct occurred but it was the beginning of a regular course of conduct so that count 2 was, in that sense, a representative count.  In other words, it cannot be viewed as an isolated act.  The appellant's persistent conduct involved the complete normalisation of entirely inappropriate sexual contact between a father and his daughter.  The corrupting effect of the appellant's conduct is readily apparent from E's witness statement and victim impact statement in these proceedings.

5. The appellant refers to the following statement of Buss JA in Hill v The State of Western Australia:[34]

   It is part of the policy of the criminal law to encourage a guilty person to come forward and disclose both the fact of an offence having been committed and his or her guilt.  Such a confession may well not be motivated by fear of discovery or acceptance of the likelihood of proof of guilt, and will often exhibit the offender's remorse and contrition.  When a conviction follows upon a plea of guilty that is itself the result of a voluntary disclosure of guilt by the offender of an offence which was otherwise unlikely to have come to light, that is ordinarily a significant matter to the credit of the offender to be taken into account in the sentencing process.  How significant it is in the sentencing process depends upon the facts and circumstances of the case. (citations omitted)

   [34] Hill v The State of Western Australia [2014] WASCA 150 [33].

6. That passage does not assist the appellant in relation to count 2 on the indictment.  This is not a case where the appellant came forward and volunteered information about sexual offending against his daughter which would have otherwise remained undiscovered.  The appellant had been caught by police in bed with his daughter, and images of his offending against her (albeit not of the offence which was the subject of count 2) were located by police.  In his interview with police he denied having sexual intercourse with E when she was less than 16 years old, and generally made admissions only after being confronted with evidence which police already had.  While the appellant's cooperation with police was a mitigating factor, he is not in the category of offenders to which Buss JA was referring in Hill.

7. The most significant mitigating factor in this case was the appellant's plea of guilty. 

8. In all the circumstances, and having regard to all relevant sentencing principles, we consider a sentence of 5 years' immediate imprisonment to be commensurate with the seriousness of the offence charged on count 2 of the indictment.

Counts 7 - 9 on the indictment:

1. As noted above, counts 7 - 9 on the indictment allege offences against s 329(7) of the Criminal Code.  They are relatively serious examples of that offence, given that they represented a sustained course of conduct by the appellant against his daughter who was only 18 years old, committed in the context of a history of sexual abuse committed against her when she was a child. 

2. However, regard must also be had to the maximum available penalty of 3 years' imprisonment as well as mitigating factors, in particular the appellant's plea of guilty at the earliest reasonable opportunity.

3. In all the circumstances, and having regard to all relevant sentencing principles, a sentence of 15 months' immediate imprisonment should be imposed in respect of each of counts 7 ‑ 9 on the indictment.

Charge KR 842/16

1. Charge KR 842/16 concerns the non-commercial supply of 0.1 g of methamphetamine which is the subject of ground 4.  As we have noted, a sentence of immediate imprisonment is the only appropriate sentence in all the circumstances.  However, in all the circumstances described above, a sentence of 4 months' immediate imprisonment is commensurate with the seriousness of that offence.

Charge KR 846/16

1. Charge KR 846/16 alleges simple possession of methamphetamine, being the 0.1 g located upon the search of the appellant's villa on 24 August 2016.  In our view a sentence of imprisonment is not the only appropriate sentence in respect of this offence,[35] for which the appellant should be fined $1,000.

Other offences

[35] See s 6(4) and s 39(3) of the Sentencing Act.

1. In our view, the other individual sentences imposed by the sentencing judge, not specifically mentioned at [55] ‑ [67] above, were commensurate with the seriousness of the offences to which they relate. We would not alter those individual sentences.

Total effective sentence

1. In considering the overall criminality involved in all the offences, it is relevant to note that the sexual offences against the appellant's daughter occurred in a sustained manner over a period of about three years.  The offences were significantly aggravated by the fact that many of them were visually recorded by the appellant.  The vulnerability of the victim at the time of the offending, and the fact that to the appellant's knowledge she had previously been sexually abused, were also significant aggravating factors.  In assessing the seriousness of the offending conduct it is also relevant to note that E was not as young as some of the victims in the most serious cases which have come before this court and, in contrast to some of those cases, there was a single victim of the appellant's offending.[36]

   [36] See the review of the total effective sentences imposed for the most serious cases in LJH v The State of Western Australia [2016] WASCA 155 [88] - [92], [123] and SCN v The State of Western Australia [2017] WASCA 138 [112] - [115].

2. In considering totality it is also relevant to have regard to the significant additional criminality involved in the offences of possessing child exploitation material and the drug offences.

3. It is, of course, also relevant to take into account the mitigating factors, including the plea of guilty to the offences at the earliest reasonable opportunity, his cooperation with police and his limited past criminal record. 

4. In our view, a sentence of 11 years 6 months' immediate imprisonment bears a proper relationship to the overall criminality involved in all of the offences viewed in their entirety, having regard to all relevant facts and circumstances (including those referable to the appellant personally) and all relevant sentencing principles.  That total effective sentence is appropriately achieved by ordering the sentences for counts 2, 6 and 10 on the indictment and charge KR 843/16 (possession of cannabis with intent to sell or supply to another) to be served cumulatively with each other.  All other sentences should be served concurrently. 

5. The appellant should remain eligible for parole in respect of the sentences of imprisonment.  The sentence for count 2, which is the head sentence, should be backdated to 24 August 2016 to take account of time spent in custody on remand.

Orders

1. For the above reasons, the following orders should be made on the appeal:

   (1)Leave to appeal on ground 3 is granted.

   (2) The appeal is allowed.

   (3)The sentences imposed by the sentencing judge are set aside and the following sentences are substituted:

Charge No	Offence	Date of offence		Sentence[37]	Concurrent/ cumulative
Indictment KUN 57 of 2016
1	Indecent dealing with a child who is a lineal relative	Unknown b/n 13/4/13 and 1/1/15		3 years	Concurrent
2	Sexual penetration of a child under 16 years of age who is a lineal relative	On or about 2/12/13		5 years	Head sentence
3	Sexual penetration of a child who is a lineal relative	Unknown b/n 13/4/13 and 1/1/15		3 years	Concurrent
4	Sexual penetration of a child who is a lineal relative	Unknown b/n 13/4/13 and 1/1/15		3 years	Concurrent
5	Sexual penetration of a child who is a lineal relative	Unknown b/n 13/4/14 and 1/1/16		4 years 6 months	Concurrent
6	Sexual penetration of a child who is a lineal relative	Unknown b/n 31/12/14 and 14/4/16		4 years 6 months	Cumulative
7	Sexual penetration of a person who is a lineal relative of or over the age of 18 years	Unknown b/n 30/6/16 and 1/8/16		1 year 3 months	Concurrent
8	Sexual penetration of a person who is a lineal relative of or over the age of 18 years	On or about 5/7/16		1 year 3 months	Concurrent
9	Sexual penetration of a person who is a lineal relative of or over the age of 18 years	On or about 19/8/16		1 year 3 months	Concurrent
10	Possession of child exploitation material	24/8/16		1 year 6 months	Cumulative
Section 32 Notice
KR 842/16	Supply a prohibited drug (methamphetamine)		Between 21/8/16 and 22/8/16	4 months	Concurrent
KR 843/16	Possess a prohibited drug (cannabis) with intent to sell or supply		24/8/16	6 months	Cumulative
KR 844/16	Possess or copy an indecent or obscene article		24/8/16	$500
KR 846/16	Possess a prohibited drug (methamphetamine)		24/8/16	$1,000
KR 847/16	Possessed drug paraphernalia on which there was a prohibited drug or plant		24/8/16	$200
Total Effective Sentence			11 years 6 months

[37] References to time periods are to terms of immediate imprisonment.  References to monetary amounts are to fines.

(4)The appellant is eligible for parole in respect of the sentences of imprisonment substituted by order (3) above.

(5)The term of immediate imprisonment substituted for count 2 on the indictment is taken to have begun on 24 August 2016.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.

CR
ASSOCIATE TO THE HONOURABLE JUSTICE MITCHELL

4 MAY 2018