ZLE v The State of Western Australia [No 2]

[2024] WASCA 69

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT  :   THE COURT OF APPEAL (WA)

CITATION:   ZLE -v- THE STATE OF WESTERN AUSTRALIA [No 2] [2024] WASCA 69

CORAM:   MITCHELL JA

HALL JA

VANDONGEN JA

HEARD:   12 JUNE 2024

DELIVERED          :   12 JUNE 2024

PUBLISHED           :   21 JUNE 2024

FILE NO/S:   CACR 22 of 2024

BETWEEN:   ZLE

Appellant

AND

THE STATE OF WESTERN AUSTRALIA

Respondent

ON APPEAL FROM:

Jurisdiction              :   DISTRICT COURT OF WESTERN AUSTRALIA

Coram:   EGAN DCJ

File Number            :   IND 2076 of 2021

Catchwords:

Criminal law - Appeal against sentence - Child sex offences - Four offences of indecent dealing with a child under 13 - Whether sentencing judge erred by not ordering a pre‑sentence report - Whether sentence should have been suspended - Whether individual sentence on one count manifestly excessive - Whether total effective sentence breached the totality principle

Legislation:

Nil

Result:

Application for leave to adduce additional evidence dismissed
Leave to appeal refused
Appeal dismissed

Category:    B

Representation:

Counsel:

Appellant	:	H Sklarz
Respondent	:	R Owen SC & M Plester

Solicitors:

Appellant	:	Sklarz Lawyers
Respondent	:	Director of Public Prosecutions (WA)

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

BGR v The State of Western Australia [2014] WASCA 82

GJT v The State of Western Australia [2011] WASCA 263

HTD v The State of Western Australia [2018] WASCA 202

Kabambi v The State of Western Australia [2019] WASCA 44

OTR v The State of Western Australia [No 2] [2022] WASCA 123

The State of Western Australia v Shepherd [2018] WASCA 140

Wellstead v The State of Western Australia [2019] WASCA 130

REASONS OF THE COURT:

1. This appeal against sentence was heard on 12 June 2024.  At the conclusion of the hearing, we made orders refusing leave to appeal and dismissing the appeal.  The following are our reasons for making those orders.

2. The appellant was convicted after a trial of four counts of indecently dealing with a child under the age of 13, contrary to s 320(4) of the Criminal Code (WA). He was sentenced to 12 months' imprisonment on count 1, 4 months' imprisonment on count 2 and 3 months' imprisonment on each of counts 3 and 4. The sentences on counts 1, 3 and 4 were made cumulative, producing a total effective sentence of 18 months' immediate imprisonment. An order was made that the appellant be eligible for parole.

3. The appellant sought leave to appeal on three grounds.  Ground 1 is that there was either an error or a miscarriage of justice in that the sentencing judge did not adjourn proceedings to obtain a pre‑sentence report and written sentencing submissions and by failing to suspend the total term of imprisonment.  Ground 2 is that the sentence of 12 months' immediate imprisonment on count 1 is manifestly excessive.  Ground 3 is that the total effective sentence of 18 months' immediate imprisonment breached the first limb of the totality principle.

The facts

1. The sentencing judge's factual findings are not challenged on the appeal.  Those findings can be summarised as follows. 

2. In April 2021, the appellant was living at a house in a suburb of Perth with his wife and 8‑year‑old stepdaughter, who we will refer to as M.[1] 

   [1] ts 596.

3. On 3 April 2021, between the hours of 8.30 am and approximately 5.15 pm, the appellant was at home with M and was responsible for her care.  During the course of the morning, the appellant entered M's bedroom whilst she was lying on her bed in her pyjamas.  He proceeded to lie on top of M and touched her vagina over her pyjamas.  The touching continued for two or three seconds, during which time the appellant moved his hand around on top of M's vagina.  That conduct constitutes count 1.[2]

   [2] ts 594.

4. When the appellant left M's bedroom, she locked the door because she was scared.  She unlocked the door a short time later because she was feeling more relaxed.  Later in the morning, the appellant entered M's bedroom again.  On this occasion, M was in a makeshift tent in the corner of her bedroom, which she had constructed using blankets.  The appellant proceeded to lie on M's bed and then lent into the tent and kissed her on the lips.  When he did this, he sucked either her lips or her tongue.  That conduct constitutes count 2.[3]

   [3] ts 594.

5. Sometime later that day the appellant left the house to conduct some errands.  On returning to the house, he called M to come to the kitchen from her bedroom.  When M came into the kitchen, the appellant kissed her on the lips and, again, sucked her lips or her tongue.  This episode of kissing lasted approximately five seconds.  This conduct constitutes count 3.[4]

   [4] ts 594.

6. At the same time as count 3, and immediately after the kissing, the appellant took M's hand and placed it on his penis on the outside of his clothing.  This lasted for 'much longer than a couple of seconds'.  At the time the appellant did this, he said words to the effect of 'Mum would love to do it'.  That conduct constitutes count 4.[5]

   [5] ts 594.

7. At this point, M began to cry.  In response, the appellant said 'sorry' and gave her a game card or two that he had purchased for her when he was out doing errands.  M ran to her room and locked the door behind her.  She did so because she was scared.[6]

   [6] ts 595.

8. The sentencing judge noted that the appellant had purchased game cards after he had committed the offences the subjects of count 1 and 2. His Honour also noted that the appellant had previously agreed with M's mother that M would receive game cards once a year on her birthday.  Despite that agreement, and unknown to M's mother, the appellant had been purchasing game cards for M and giving them to her.  He told M that this was their secret, and that M should not tell her mother or otherwise she would get into trouble and the appellant would have to stop buying the cards for her.[7]

   [7] ts 595.

9. The sentencing judge found that the purchasing of the game cards and the giving of them to M in secret was controlling behaviour on the appellant's part and constituted a form of grooming.  This grooming culminated in the appellant giving cards to M immediately following the conduct the subject of count 4 in an attempt, the sentencing judge found, to stop her from telling her mother what the appellant had done.[8]

   [8] ts 595.

Sentencing proceedings

1. As noted earlier, the appellant was found guilty of all four offences after a trial.  The appellant gave evidence at the trial.  In his evidence he provided information regarding his background.  That evidence included that the appellant was born in Vietnam, came from a large family, had migrated to Australia when he was aged 25, that he was previously in a de‑facto relationship and was the father of three adult children.  His evidence included that he had completed an apprenticeship in painting, is a qualified painter and owns a painting business operating out of a premises in a suburb of Perth.[9]

   [9] ts 365 - 367.

2. The verdicts were returned in the mid‑afternoon of 16 January 2024.  Immediately following the delivery of the verdicts, defence counsel advised the trial judge that he was 'instructed to make an application for sentencing to occur this afternoon'.  Counsel then proceeded to make sentencing submissions.[10]

   [10] ts 573 - 574.

3. In his submissions, counsel referred to the appellant's personal antecedents as set out in his evidence‑in‑chief at the trial.  Counsel noted that the appellant was a person who had made a positive contribution to society through his business as a painting contractor.  He said that the appellant was a man of good prior record.  He made submissions regarding the seriousness of the offences.  He submitted that a suspended sentence was open.  In support of that submission, counsel said that the appellant had played a positive role in M's life until the commission of the offences and that there was no suggestion that he had done anything inappropriate on any other occasion.  He submitted that the offences were fleeting and at the lowest level of seriousness.[11] 

   [11] ts 575 - 577.

4. The State's position was that there were no significant mitigating factors and that the offending was of such seriousness that only a sentence of immediate imprisonment could be imposed.[12]

   [12] ts 580.

5. There was a dispute between the parties as to whether the appellant had engaged in grooming behaviour.  This related to the provision of the game cards.[13]  As noted earlier, the sentencing judge found that the appellant's conduct in regard to the game cards was a form of grooming.

   [13] ts 579 - 582.

6. No pre‑sentence report was requested.

Sentencing remarks

1. Sentencing was adjourned to 14 February 2024.  On that day the sentencing judge sentenced the appellant and delivered his sentencing remarks.

2. The sentencing judge noted that he had not been provided with any reports or written submissions on behalf of the appellant.  He noted that defence counsel had submitted that he should rely on what the appellant had said during his evidence regarding his personal circumstances.  On that basis, his Honour made the following findings.[14]

   [14] ts 595.

3. The appellant was born on 25 August 1969 and was 54 years old at the time of sentencing.  He was aged 51 years old at the time of the offending.  He was born in Long An province in Vietnam and is one of eight children.  His Honour had no information concerning the appellant's upbringing or schooling and said that he would assume that they were 'unremarkable'.  The appellant arrived in Australia on 29 July 1993, when he was 23 years old.  He has three children from a former relationship and all of those children are now grown up.[15]

   [15] ts 595.

4. The appellant met M and her mother in June 2017.  He met them in Vietnam after he had been communicating with M's mother for some time.  He formed a relationship with M's mother, and they eventually married.  That marriage took place in Australia in 2017.[16]

   [16] ts 596.

5. In April 2021, the appellant was living at an address in suburban Perth with M and her mother.  At that time, M was 8 years old.  Following the offending, the appellant's relationship with M's mother came to an end and he is now either separated or divorced from her.  He no longer has contact with either M or her mother.[17]

   [17] ts 596.

6. His Honour noted that the appellant is a painter by trade and that he operated his own business, though he had no other details in that regard.[18]

   [18] ts 596.

7. His Honour said that there was no information before him concerning the appellant's physical or mental health.  As such, he had no reason to consider that the appellant was not in good physical or mental health.  Nor was there any information to suggest that the appellant had engaged in any sort of rehabilitation since the date of the offending.[19]

   [19] ts 596.

8. There was no victim impact statement from M.  However, his Honour noted that M was both scared and upset as a result of what the appellant did to her.  He said that much was clear from the evidence that M gave at the trial.[20]

   [20] ts 596.

9. As to the seriousness of the offending, the sentencing judge referred to the following factors:[21]

   1.The appellant was M's stepfather at the time and as such, occupied a position of trust and authority in regard to her within the family unit.  He was occupying that position on the day of the offending.  He breached that position of trust.

   2.The offending was persistent in that it occurred at three different times during the course of the day.

   3.There was an element of grooming in the offending.

   4.There was a significant age disparity between the appellant and M.

   5.M was vulnerable having regard to her age and the fact that she was home alone with the appellant at the time the offences occurred.

   6.The offending occurred in the family home where M was entitled to feel safe.

   7.The offending caused fear to M, to the point where she locked her bedroom door on two occasions.  The offending the subject of counts 3 and 4 also caused M to cry and run to her bedroom.

   8.The conduct was sexual in nature and driven by some form of sexual attraction towards the child victim, which his Honour described as 'perverted'. 

   [21] ts 596 - 598.

10. As against those factors, his Honour noted that the instances of touching that were the subject of counts 1 and 4 occurred over the clothes and were fleeting in nature.  There was no physical force, verbal abuse or threats.  His Honour said that had the offending contained any of those elements, it would have been far more serious.  His Honour said that he considered the offending was within the low range of seriousness for offences of this type. However, it was nonetheless serious for the reasons he had remarked on.[22] 

    [22] ts 598.

11. As to mitigating factors, the sentencing judge said that there was little by way of mitigation.  The appellant did not have the benefit of youth, he could not be said to be remorseful, nor had he engaged in any form of rehabilitation.  His Honour said that in the absence of reports, he was unable to make any finding regarding the level of risk of reoffending.[23]

    [23] ts 598 - 599.

12. The sentencing judge concluded that imprisonment was the only appropriate disposition.  He imposed the sentences referred to earlier in these reasons.  His Honour then considered whether it was open to suspend the sentences.  He concluded that it was not, because of the seriousness of the offending, the aggravating factors and the need to comply with sentencing principles relating to offences of this nature.[24]  

    [24] ts 600 - 602.

Grounds of appeal

1. The grounds of appeal are as follows:[25]

   [25] WAB 7.

   1.There was an error or a miscarriage of justice in that his Honour erred in law and fact by:

   (a)not adjourning the sentencing proceedings to obtain a written pre‑sentence report and defence sentencing submissions in order to be properly appraised of the offender's personal antecedents, rehabilitation and the unlikely risk of reoffending.

   (b)failing to suspend the total term of imprisonment.

   2.The sentence of 12 months' immediate imprisonment as to count 1 is manifestly excessive.

   3.The total effective sentence of 18 months' immediate imprisonment:

   (a)does not bear a proper relationship to the overall criminality, and

   (b)offends the first limb of the principle of totality.

Appellant's submissions

1. The appellant submits that the information placed before the sentencing judge regarding the appellant's personal circumstances was incomplete and inadequate.  It is submitted that the sentencing judge should have ordered a pre‑sentence report or required written sentencing submissions to be prepared by the appellant's counsel.  In particular, the appellant suggests that further information was required regarding his painting business, his prospects of rehabilitation and the risk of reoffending.  He submits that if a pre‑sentence report had been obtained, the resulting information would have been sufficient to justify the imposition of a suspended sentence.[26]

   [26] WAB 10 - 11.

2. The appellant made an application to adduce additional evidence on the appeal.  That additional evidence was in the form of an affidavit from the appellant.  In that affidavit, he provides some very brief additional information regarding his family history, education and work history.  He also provides additional information regarding his painting business, in particular, the number of employees and financial records for the period 2021 ‑ 2024.  The effect of these records was to show that the business was financially successful, at least until the appellant was remanded in custody following his conviction.  As to rehabilitation, the appellant's affidavit refers to having cut all ties with M and her family after his arrest and notes the existence of a violence restraining order, which he says he will adhere to.  He refers to having become a devout Christian since his conviction.  He states that he has been an exemplary prisoner and has been 'addressing the issues that prevail my conviction [sic] and have sought help within the prison system'.  There are no details as to what issues he is addressing, how they are being addressed or what help he has sought.[27]

   [27]Affidavit of ZLE sworn 20 March 2024, pages 2 - 4.

3. The appellant submits that had the matters raised in his affidavit been before the sentencing judge, a suspended sentence, or a lower sentence on count 1 and a lower total effective sentence would have been imposed.[28]

   [28] WAB 15 - 17.

4. As to grounds 2 and 3, the appellant submits that the sentence on count 1 and the total effective sentence were erroneous having regard to the low level of seriousness of the offences and to sentences imposed in comparable cases.  As to seriousness, the appellant refers to the touching offences being over clothing, each of the offences being brief in nature and the absence of any physical force, threats or coercion.  The appellant submits that when these factors are coupled with the appellant's favourable personal circumstances, implied error can be inferred.[29]  As to comparable cases, the appellant refers to HTD v The State of Western Australia,[30]  GJT v The State of Western Australia,[31] and BGR v The State of Western Australia.[32]

   [29] WAB 17 - 22.

   [30] HTD v The State of Western Australia [2018] WASCA 202.

   [31] GJT v The State of Western Australia [2011] WASCA 263.

   [32] BGR v The State of Western Australia [2014] WASCA 82.

Respondent's submissions

1. The respondent submits that the failure to order a pre‑sentence report cannot constitute a ground of appeal unless that failure results in a miscarriage of justice.  In order to establish a miscarriage of justice, the appellant must show that if a pre‑sentence report had been before the sentencing judge, it would not have been open to impose an immediate term of imprisonment.  The respondent submits that that high hurdle has not been met in this case.  That is because none of the information in the appellant's affidavit materially adds to the picture that was already before the sentencing judge.[33] 

   [33] WAB 35 - 36.

2. As to the sentences imposed, the respondent submits that a suspended sentence is likely to only be appropriate in cases involving an unusual combination of sentencing factors.  This was not such a case, indeed there were remarkably few mitigating features.  Neither the circumstances of the appellant's offending nor his personal circumstances were such that a suspended sentence of imprisonment was appropriate.  The cases on which the appellant relies to claim otherwise are readily distinguishable.  The individual and total effective sentences imposed in this case appropriately reflected the criminality of the appellant's conduct and the appellant has failed to identify any error on the part of the sentencing judge.[34]

   [34] WAB 36 - 40.

Merits of the appeal

1. A court may order a pre‑sentence report if the court considers that it would be assisted in sentencing by such a report.[35]  It is not mandatory to obtain a report (other than where the court is considering ordering a PSO or an ISO).[36]  Whether a report should be ordered depends on the circumstances of the case.  An obvious example where a report has utility is where an offender has served previous sentences of imprisonment or periods under supervision.  A report may reveal what programs the offender has undertaken or how well they have responded to supervision.  Where an offender is represented, it is not usually necessary to obtain a pre‑sentence report in order to acquire information about their background or personal circumstances.

   [35] Sentencing Act 1995 (WA), s 20(1).

   [36] Sentencing Act 1995 (WA), s 20(2a), s 20(3).

2. Appellable error is not established by the mere fact that a pre‑sentence report was not ordered.  What the appellant must show is that the failure to order a pre‑sentence report, and the consequent absence of relevant information which would have been contained in a pre‑sentence report, resulted in a miscarriage of justice.  As this court explained in Wellstead v The State of Western Australia,[37] allowing an appeal against sentence on the basis of the absence of evidence before the primary court at least ordinarily involves two steps.  First, the absence of the evidence at first instance must be shown to have given rise to a miscarriage of justice.  As a general rule, where evidence was available to the defence at the time of sentencing, a miscarriage of justice would rarely result simply from the fact that the evidence was not before the sentencing judge, even if the evidence may possibly have had an impact upon the sentence passed.  Secondly, when account is taken of the additional evidence, the appellate court must consider that a different sentence should have been imposed.

   [37] Wellstead v The State of Western Australia [2019] WASCA 130 [81] - [99].

1. In Wellstead, the court noted cases where the court had refused to admit additional evidence which did not give rise to any reasonable possibility that the sentences imposed would have been different.  However, the court recognised that the existence of such a reasonable possibility will not necessarily be sufficient in all cases to establish a miscarriage of justice, particularly where the evidence was known to but not used by an appellant.

2. In the present case, the additional evidence sought to be adduced by the appellant does not give rise to any reasonable possibility that the sentences imposed would have been different.  There is nothing in the appellant's affidavit to suggest that a pre‑sentence report would have contained anything relevant to sentencing that was not already known, including on the issue of risk.  That is a sufficient basis to conclude that the absence of information in a pre‑sentence report did not give rise to a miscarriage of justice.

3. Further, none of the information in the appellant's affidavit materially adds to the picture that was already before the sentencing judge.  The appellant gave evidence at the trial about his place of birth, his move to Australia, his siblings and his own children.  His evidence included that he operated a painting business, having completed an apprenticeship in painting. The affidavit only provides a few additional details of the appellant's personal history, which are of no material significance. For example, in the affidavit, the appellant sets out brief details as to his education, which was unremarkable, as the sentencing judge correctly assumed it was.

4. The financial records attached to the affidavit show that the appellant's business has employed people and provide details of its annual turnover. This information does not add in a material way to the information that was before the sentencing judge.  The fact that the appellant may have conducted a successful business was not in issue and was a matter of small, if any, significance.

5. As to the appellant's rehabilitation and low risk of reoffending, there is nothing in the affidavit to suggest that he has accepted responsibility for the offending or done any counselling or programs in respect of that conduct.  The fact that he has 'cut ties' with M and her family could hardly be an indicator of rehabilitation in circumstances where he has been in prison and is the subject of a violence restraining order.  There is nothing in the additional material that addresses the question of risk, and in any event, the sentencing judge made no finding about the risk of re‑offending, one way or the other.

6. For these reasons, it has not been established that the failure to obtain a pre‑sentence report (or written sentencing submissions) occasioned any miscarriage of justice.  In these circumstances, the application to adduce additional evidence was refused.  That disposes of ground 1 particular (a). 

7. As to ground 1 particular (b) and grounds 2 and 3, these grounds can conveniently be dealt with together.  In essence, the appellant submits that the individual sentence on count 1, the total effective sentence and the failure to suspend that sentence were so plainly unreasonable or unjust as to manifest error. 

8. The general principles governing appeals that contend that error should be inferred on the basis that an individual sentence is manifestly excessive, or that the total effective sentence infringes the first limb of the totality principle, are well established.  Those principles were summarised in Kabambi v The State of Western Australia[38] and need not be repeated. 

   [38] Kabambi v The State of Western Australia [2019] WASCA 44 [21].

9. When considering whether a sentence is manifestly excessive either as to length or type or whether a total effective sentence is disproportionate to the total criminality, it is relevant to have regard to the maximum penalties for the offences, the seriousness of the offences, the personal circumstances of the appellant and sentences imposed in comparable cases. 

10. The maximum penalty for the offence of indecent dealing with a child under the age of 13 years is 10 years' imprisonment.[39]

    [39] Criminal Code (WA), s 320(4).

11. As to the seriousness of the offending, this case involved four counts of sexual offending against a young child, including one instance of the appellant fondling the victim's genitalia.  As well as kissing the victim twice, the appellant induced the victim to touch his genitalia.  The offending was characterised by aggravating features, including that it constituted a serious breach of trust, was persistent over the course of a day, there was an element of grooming by the provision of game cards and it was marked by a large age difference, with the victim being particularly vulnerable at only 8 years old.  Whilst there was no victim impact statement, the facts as found by the sentencing judge were that the victim was frightened during the course of these events and on two occasions, locked her door.  After the last incident, she was crying. 

12. As to the appellant's personal circumstances, they were unremarkable.  It is not unusual for offenders who commit this type of offence to have no previous criminal record and an exemplary work history.  In any event, matters personal to an offender are usually of less weight in respect of offences of this nature.  The appellant was convicted after a trial and there was nothing to indicate that he had accepted responsibility for the offending or embarked on a process of rehabilitation.

13. It is well‑established that there is no tariff for sexual offences against children.[40]  That is due to the great variation that can occur in the circumstances of the offending and in the personal circumstances of offenders.  The primary sentencing considerations for sexual offending against children are appropriate punishment of the offender and general and personal deterrence.  These considerations are informed by the need to protect vulnerable children.  As has already been noted, matters personal to an offender will ordinarily carry less weight.  In particular, the fact that an offender is otherwise of prior good character has little weight in cases of sexual offending against children.  The offending is of such a nature that, until revealed, it will not impinge on others or affect their perception of the offender.  Such offending can exist conformably with an otherwise apparently good character.[41]

    [40] See OTR v The State of Western Australia [No 2] [2022] WASCA 123 [55].

    [41] OTR [No.2] [55] - [57].

14. Custodial sentences for offences of indecent dealing with children are not unusual.  Sentences for such offences have ranged from 9 ‑ 18 months (pre‑transitional) with sentences at the higher end of the range involving the fondling of the genitalia.[42]  The individual sentences imposed in this case are not inconsistent with sentences imposed in other cases.  Nor is the total effective sentence inconsistent with comparable cases.

    [42] See The State of Western Australia v Shepherd [2018] WASCA 140.

15. We have considered the cases referred to by the appellant.  They have plainly been selected because, in the unusual circumstances of each of them, a suspended sentence was substituted.  However, what these cases show is that such an outcome is exceptional, not usual.  Furthermore, none of those cases are truly comparable with that of the appellant.  It is sufficient to note that HTD concerned a single instance of the offender massaging the victim's bottom.  GJT was of comparable seriousness to the offending in the present case.  However, in that case, there were truly exceptional mitigating factors, including that the offender had undertaken voluntary counselling and treatment in the lengthy period between the commission of the offences and when they were disclosed by the victim to the police.  BGR also involved similar offending but, again, there were significant mitigating factors. 

16. Having regard to the maximum penalty, the circumstances of the offences, the appellant's personal circumstances and comparable cases, it is not reasonably arguable that the sentence of 12 months' imprisonment on count 1 was manifestly excessive or that the total effective sentence of 18 months' imprisonment was disproportionate to the overall criminality.  Nor has it been established that it was not open to the sentencing judge to conclude that a suspended sentence was inappropriate.

Conclusion

1. None of the grounds of appeal has a reasonable prospect of success. 

2. For those reasons, at the conclusion of the hearing of the appeal, we made the following orders:

   1.The appellant's application in an appeal dated 20 March 2024, seeking leave to adduce additional evidence in the appeal, is dismissed.

   2.Leave to appeal is refused on all grounds of appeal.

   3.The appeal is dismissed.

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

ID

Research Associate to the Hon Justice Hall

21 JUNE 2024