Criminal law and procedure - Sentencing - Indecent dealing with child who was lineal relative - Two counts of fondling breasts of daughter - Sentence of 16 months' imprisonment - Whether manifestly excessive - Whether should have been suspended

1 OWEN JA: I agree with the reasons to be delivered by Miller JA and with his Honour's conclusion that the appeal should be dismissed. There is only one matter on which I want to make specific comment.

2 During his submissions, counsel for the appellant referred to L v The State of Western Australia [2007] WASCA 186, [36] that in an indecent dealing case 'exceptional circumstances must be shown before a sentence other than one of immediate imprisonment is imposed'. Counsel submitted that this comment 'if taken literally by District Court judges ... is going to result in every person who is charged with indecent dealing having to show exceptional circumstances where there is a breach of trust and where there is a disparity of age'.

3 This is not how I read L. Nor do I read L as stating some new principle and departing from, for example, what was said in Ferry v The Queen [2003] WASCA 207, [81]. And nor should what was said in L be divorced from the overriding principles relating to judicial discretion enunciated in Wong v The Queen [2001] HCA 64, (2001) 207 CLR 584, [6] - [7], [42].

4 This raises similar considerations to dicta in cases that suggest that, because of the nature of the particular crime, the seriousness of the offence and the need for general deterrence are the primary considerations and the personal circumstances of an offender are secondary. But it would offend basic sentencing principles to regard personal circumstances as inconsequential or irrelevant. In this respect, I refer to what I said in Henderson v The State of Western Australia [2007] WASCA 198, [49] - [53].

6 MILLER JA: The appellant was indicted on two counts of indecent dealing with a child whom he then knew to be his lineal relative. The terms of the indictment were as follows:

(1) Between 26 January 2006 and 27 January 2006 at Oakajee [P] indecently dealt with [K], a child who he then knew to be his lineal relative, by touching her breasts with his hands.

(2) Between 1 February 2006 and 28 February 2006 at ... [P] indecently dealt with [K], a child who he then knew to be his lineal relative, by touching her breast with his hand.

7 K was the daughter of the appellant and she was 15 years of age at the time of the offences. The appellant was then 44 years of age.

8 The appellant pleaded guilty on the fast-track system before Mazza DCJ in the District Court at Geraldton on 10 May 2007 and was sentenced to imprisonment for 8 months on each count, to be served cumulatively. This meant a sentence of 16 months' imprisonment. The appellant was made eligible for parole.

9 The appellant was granted leave to appeal on 25 July 2007. The grounds of appeal were then reformulated. They are as follows:

1. The sentences of 8 months imprisonment on each count imposed by the learned sentencing Judge were manifestly excessive in that dispositions other than imprisonment to be served immediately were open and should have been imposed.
2. In the alternative if a sentence of imprisonment to be served immediately were the only disposition open the sentences should have been ordered to have been served concurrently rather than cumulatively.

10 Particulars annexed to the grounds contend that the learned sentencing judge gave insufficient weight to a number of factors:

1. the plea of guilty on a fast track basis;
2. the seriousness of the behaviour constituting the offences;

1. the favourable pre-sentence report attesting to the empathy for the victim;
2. the rehabilitation aspect of sentencing given the counselling already undertaken by the appellant;
3. the fact the Appellant was maintaining the victim (his daughter) to the tune of $150.00 per week;
4. the desirability in encouraging the wish of the Appellant to retrieve as much as possible the relationship between the father and daughter, which possibility was not closed by the victim;
5. the full time employment of the Appellant;
6. the lack of a criminal record;
7. the lack of any violence or forceful behaviour;
8. the degree of co-operation and remorsefulness on the part of the Appellant;

1. the short duration of each offence particularly the second and the fact that the Appellant desisted immediately on the second occasion; and
2. the offending behaviour being at the bottom of the scale for offences of this nature.

11 In January and February 2006, the appellant had been separated from his wife for some seven months. He lived with the complainant, near Geraldton.

12 On Australia Day long weekend in January 2006, the appellant and the complainant (then 15 years of age) went camping with several neighbours. At about 1 am the following morning, the appellant, who was sleeping in the rear of a utility with the complainant, leaned over and began to kiss her on the lips. She pushed him away, but he reached under her back, undid her bikini top, pushed her singlet up and fondled her breasts. He then moved his other hand to the top of her pants, but the complainant pushed him away. He then desisted from any further conduct towards her. The first count on the indictment related to the touching of the breasts.

13 Between 1 and 28 February 2006, the appellant returned to his home some time between 9 and 10 pm. He was intoxicated. The complainant was at the house. The appellant walked up to her and asked her for a cuddle and he attempted to put his arm around her. He then moved his hand up her arm and fondled her breast on the outside of her clothing. The complainant ran to her bedroom and then to the house of a friend.

14 The appellant was interviewed by detectives on 27 February 2007, when he made admissions and was charged with the offences.

15 In a statement made by the complainant to investigating officers on 16 February 2007, she described the incident in the following terms:

1. Um - - there was um, three adults and four kids including myself and my dad. Um, we were celebrating Australia Day, drinking. The adults got pretty drunk and it become night time and time to go to sleep. Um, myself and my dad were sleeping in the back of the ute, we had a swag each, and then I went to sleep first, and then he hopped in, and he rolled over and he started trying to like kiss me and then - -

1. And then I told him to go away, and I tried to push him away, and then he rolled me over and he started taking my bather top off and my singlet and he started kissing me and - - feeling my breasts and trying to put his hand down my pants. I tried to push him away, but he wouldn't take no for an answer. And then he finally realised what he was doing and it was a bad thing, and he said, 'Sorry', and I turned back over and went to sleep. And then - - um - - um, he tried it again 2 weeks later.

16 The complainant described the second incident in the following terms:

1. Not to you? Okay. Earlier on, when you were sort of going - - you went through, you said that he tried again 2 weeks later - -
2. Yep.
3. - - at the very end.
4. Mm.
5. Was -- was anything sort of similar happened like this time or - ?
6. Um - - no, it wasn't as traumatic.
7. Okay.
8. Um, we were at home and he was drunk again. Um, he wanted me to come sit next to him on the couch, and he gave me a cuddle and then he started feeling my boob, and then I pushed him away.

17 A statement of NJA, a 16-year-old friend of the complainant indicates that after the second incident the complainant was very upset. NJA said that, following her attendance with the complainant and their respective boyfriends at a concert at the Wonthella oval, she received a telephone call from the complainant:

Later that night K phoned me and I could hear that she was crying over the phone.

I asked her what was wrong.

K then told me [the appellant] had touched her again.

I then asked K if her dad had been drinking again and she told me yes.

I then told K to go to mums house and she told me that she was almost there and she was going to hide behind the fence.

18 Following the second incident, the complainant made a complaint to her mother MEH about the two incidents. She told her mother that she had not told her beforehand because she did not want her to find out what had happened. She cried when she reported the matter to her mother.

19 The learned sentencing judge had before him two victim impact statements of the complainant. Both showed that she was emotionally changed by what had occurred. In the first statement, she said that she suffered nightmares about what had happened and her mood swings were unpredictable. She was angry towards her mother and partly blamed her because of what had happened. She was undergoing counselling and taking antidepressants. She left school because she thought that people at school would know what had happened. She concluded in the first victim impact statement by saying:

I feel angry at myself because of what happened. I feel lost because there is a person missing in my life.

The only positive that has come out of it is that the only person you can trust is yourself.

20 In the second statement, the complainant added that she thought she had done the right thing by reporting the appellant 'so no one else suffers'. She added the following paragraph:

I am never going to stop loving him as a father and that's what hurts the most 'it was my own father that did this to me, the person I loved and trusted so much it all just blew up in my face'.

21 At the hearing of the appeal, counsel for the appellant placed before the court an affidavit sworn 23 August 2007 in which he testified that, on 8 August 2007, he saw the complainant at his office and was told by her in the presence of her mother that she would not be 'arguing against the appeal but would not actively support the appeal either and would stay out of it and leave the matter of the appeal to be decided in accordance with the judicial process'. She did, however, indicate that counsel could bring to the attention of the court a letter that she had written to the appellant after his sentence. It was a letter wishing him a happy birthday on 13 July 2007. She began the letter with the words, 'I never thought it would be so hard to start a letter!! Were [sic where] do I start and what do I say?'

22 Although this letter was relied upon by counsel for the appellant to assist the appellant in his appeal, it seems to me that it is indicative of the confusion in the mind of the complainant occasioned by reason of the appellant's offending. I shall refer further to this issue.

23 The learned sentencing judge had before him a pre-sentence report in relation to the appellant. It recorded that he was difficult to engage in relation to the offences, but it was thought that his despondency and lack of engagement may have been a consequence of shame and embarrassment associated with his offending. Nevertheless, the writer was concerned that the appellant was unable to provide any indication of an understanding of his motives for his offending. He did demonstrate regret and remorse, and displayed a considerable level of victim empathy.

24 The learned sentencing judge first recounted the facts of the case. He accepted that, when interviewed, the appellant was co-operative and remorseful for what he had done. He accepted also that the appellant was genuinely concerned for the complainant's welfare, but rightly stated that her welfare should never have been jeopardised in the first place. His Honour noted that the appellant was intoxicated on both occasions when the offences occurred, but pointed out that this did not afford any mitigation. It was only a factor in explaining why the appellant had offended as he did.

25 The learned sentencing judge turned to matters personal to the appellant. He made reference to the contents of the pre-sentence report, noting that the appellant had been fully employed since leaving school and was a productive citizen, working as a mechanic. He paid portion of his salary by way of maintenance for the complainant. He had no prior record of offences. His antecedents were described as very good. The learned sentencing judge also accepted that, at the time of commission of the offences, the appellant had been separated from his wife for some months because she had moved out of home and formed a relationship with another man. This had caused stress and had occasioned the appellant to be depressed. For that depression, he took medication.

26 The learned sentencing judge then made the following observation:

Any sexual offence committed by a father on a daughter is serious. These offences are a gross breach of your duty as a parent to protect the well-being of your daughter. The fundamental duty of a parent is not to harm your own child. Sadly, as you well know, you have failed in your duty. This sort of offending has the potential to seriously psychologically damage a victim and in this case it has seriously damaged your daughter.

27 Reference was made to the victim impact statements, the details of which I have recorded. The learned sentencing judge considered that only a sentence of imprisonment was appropriate in the case. He said:

I recognise that there is no tariff for sexual offences of this sort but it is unusual for a noncustodial penalty to be imposed on this kind of offending. This is because the offences are so serious and there is a justifiable emphasis on the protection of children and general deterrence. In cases such as this your very good antecedents do not carry as much mitigatory force as in other types of offending, nevertheless it carries some mitigatory weight, as do your pleas of guilty. I think they are significant. They are remorseful and they were on the fast-track system and you have spared your daughter the worry and the trauma of having to give evidence and I think that is significant. I have made the point already that you are, I find, genuinely remorseful.

28 Having determined that a sentence of imprisonment was the only disposition open, the learned sentencing judge then considered whether or not he could suspend that sentence. He was aware of the relevant principles and stated them. He decided that, in the circumstances of the case, the sentence of imprisonment would have to be served immediately. The reasons given were as follows:

The reason that I have come to this decision, as serious as I know that it is, is because the offending is too serious. There was more than one offence. The impact on the victim has been great. There is a real need to deter others and so it is that I have decided that I cannot suspend the terms of imprisonment that I have imposed.

29 The first ground of appeal contends that a sentence of 8 months' imprisonment on each count was manifestly excessive.

30 In L v The State of Western Australia [2007] WASCA 186, I made reference to Hodder v The State of Western Australia [2005] WASCA 257, where a number of cases of indecent dealing involving either touching or indecent exposure had been reviewed by Pullin JA. It is unnecessary to detail those cases, but I concluded from them that they generally supported the view that indecent dealing by adults with young children would call for a sentence of imprisonment. It is true, of course, that in numerous cases, fines have been imposed for offences of indecent dealing.

31 In Ferry v The Queen [2003] WASCA 207, Anderson J (with whom Murray and Wheeler JJ agreed) reviewed numerous cases in this jurisdiction and elsewhere and concluded, at [81]:

The pattern of sentencing would suggest that for a single incident of indecent dealing involving touching the breasts of a young girl, non-custodial sentences are quite common and that custodial penalties, when imposed, range from as little as 9 months to 18 months at most. Sentences which are at the highest end of this range usually involve fondling of genitalia, which the courts regard more seriously. (Emphasis added)

32 It is unnecessary to refer in detail to the numerous cases which Anderson J reviewed. In Ferry's case, a sentence of 15 months' imprisonment was imposed in lieu of a sentence of 2 years' imprisonment which had been imposed by the sentencing judge. The sentence was prior to the application of the transitional provisions. The facts were that a 45-year-old man in a position of trust in relation to a 12-year-old complainant (in relation to whom he was an employer) had, on a single occasion, unbuttoned the complainant's shirt, pulled her bra above her breasts and touched them. Anderson J said, at [86] - [87]:

We are, of course, mainly concerned with the pattern of sentencing in this State but, all in all, these cases show that a sentence of 2 years for a single incident involving fondling the breasts of a 12 year old girl is much higher than is usually given.

I would set aside the sentence of 2 years' imprisonment and substitute a sentence of 15 months' imprisonment which I think sufficiently recognises the bad features of the case but also has regard for the pattern of sentences customarily given.

33 The outcome of the case is consistent with the decision which I reached (Pullin JA and Le Miere AJA concurring) in L. I there said, at [36]:

The cases to which Pullin JA referred in Hodder v The State of Western Australia generally support the view that indecent dealing by adults with young children will call for a sentence of imprisonment. When that indecent dealing is associated with a breach of trust, a sentence of imprisonment is all the more likely. I accept and adopt the statement of relevant principles for sentencing in these matters which is set out by McKechnie J in R v Chilvers [2003] WASCA 87 at [25]. Breach of trust is an important factor. So is the commission of crimes against more than one child. This is particularly so when one child becomes aware that a sibling has also been a victim. Disparity in age is an aggravating feature. Mitigating factors do not have as much weight as they may do in other cases. Exceptional circumstances must be shown before a sentence other than one of immediate imprisonment is imposed.

34 The only amendment I would make to this passage is to include the word 'generally' before 'be shown' in the penultimate line.

35 Although there will be cases in which sentences other than imprisonment are imposed for indecent dealing (two are referred to in Pullin JA's judgment in Hodder at [5]), those cases generally involve only a single incident of indecent dealing and there are often special circumstances which led to a non-custodial disposition. Where there are multiple offences and where there are the aggravating factors of breach of trust, disparity in age and lineal relationship, exceptional circumstances will generally need to be shown before a sentence other than one of immediate imprisonment is imposed.

36 Use of the word 'exceptional' in this context means no more than 'unusual' (Shorter Oxford English Dictionary on Historical Principles, Oxford University Press (2002) 5th ed). I respectfully adopt and follow what the Court (Wheeler and Roberts-Smith JJA and Miller AJA) said in VIM v The State of Western Australia [2005] WASCA 233; (2005) 31 WAR 1 at [287]:

Communicating the collective sentencing experience of the judiciary is one of the responsibilities of a Court of Appeal (Wong v The Queen [2001] HCA 64; (2001) 207 CLR 584, 591 (Gleeson CJ)). It is to that end that we have undertaken the exercise the results of which appear in what follows. It must be emphasised that our purpose is to set out an historical survey, as well as identifying some factors particularly relevant to sentence in cases of this kind, rather than be prescriptive about what sentences should be imposed in particular cases (see Gleeson CJ at [42] and Callinan J at [165] in Wong). Nothing in what we say should be taken to mean a sentencing judge may not impose a non-custodial penalty or one outside an apparent range if the circumstances of the individual case clearly demand such a disposition in accordance with proper legal principle.

These observations were made in the context of a review of sentences imposed in cases involving sexual offences against children.

37 When (as here) it is the case that the offender is the natural father of the complainant, and where there is more than one single offence, the circumstances will be rare when a sentence other than one of immediate imprisonment is imposed. Biggs v The Queen (Unreported, WASCA, Library No 960657, 11 November 1996) was a case in which the appellant had been convicted of indecent dealing with his 13-year-old stepdaughter by placing his hand underneath her clothes and touching her bare breasts and then moving his hand towards her vagina. The similarities with the first count on the indictment in this case are obvious. Pidgeon J (with whom Owen and Templeman JJ agreed) said that the offence was one 'where, normally, one would expect imprisonment when a child is treated in that manner' (see page 7).

38 It seems to me that sentences of 8 months' imprisonment on each count on the indictment in this case were well within the range of sentences that could have been expected in the circumstances of the case. What aggravated the case was the fact that the appellant was the natural father of the complainant, together with the repetition of the offence and the detrimental effect that the offending had upon the complainant.

39 In VIM, the court made reference to the long-term effects of sexual offending upon young children. The case was concerned with much more serious offending than is the case here, but the observations of the court remain valid. They were at [289] et seq as follows:

1. It is fair to observe that if one goes back more than a decade in relation to such cases, there is frequently a degree of emphasis placed upon factors such as loss of virginity or risk of pregnancy (in relation to young girls) and to considerations such as threats of force or violence. These factors remain of significance.
2. However, more information about the effects of this type of offending often emerges from the more detailed submissions now made by the State at the time of sentencing, and a pattern emerges from victim impact statements. Hypotheses about the likely effect of such behaviour on young children can be tested against evidence, which emerges at trial or which is contained in victim impact statements, from adult women who now come forward as complainants in relation to sexual offences which occurred against them many years ago, and in whose lives the effect of such offending has had time to develop.
3. In the light of those experiences, courts now understand much more clearly the destructive effect of all such offending (whether accompanied by overt violence or not) upon a child's capacity to trust others and to form relationships, and upon the child's sense of self-worth. Particularly in cases of frequent or prolonged abuse, an inability to form adult relationships, or an inability to maintain them, exaggerated doubts and fears in relation to the parenting of the complainant's own children, and disrupted schooling which adversely affects the complainant's future educational and employment prospects, are very common. Also frequently encountered in such cases are drug or alcohol abuse, self-harm, and attempted suicide.
4. In some of the past cases one can detect a sense that if an offender's wife, or other members of the family, were said to be 'standing by him', that was seen as potentially mitigating. It is now understood, however, that most child complainants feel that the abuse is to some degree their fault and that broken family relationships are their responsibility, so that the estrangement of a complainant from other members of the family which often occurs where family members 'take sides', is rightly seen now as yet another serious consequence of the offender's choice to offend in that way.

Many of the factors referred to in this passage are present in the present case. The victim impact statements of the complainant speak eloquently of her distress at what has occurred. She has had her schooling disrupted. Her employment prospects are therefore very much at risk. She speaks of trying to solve her problem with alcohol. She mentions an eating disorder. Perhaps most importantly, she makes reference to the fact that she is angry with herself because of what happened.

40 The learned sentencing judge took full account of most of the matters referred to in the particulars annexed to the ground of appeal. They included recognition of the fast-track plea; the contents of the pre-sentence report; the fact that the appellant was maintaining the complainant; the antecedents of the appellant, including his past record of employment and lack of any prior criminal history; the absence of violence; the co-operation and remorse of the appellant; and the facts of the case. Although it is complained that the learned sentencing judge failed to give recognition to the offending behaviour being at the bottom of the scale for offences of this nature, there is no substance in that contention. It was not a case in which the learned sentencing judge suggested that the offending was anything other than indecent dealing in the form of touching the breasts of the complainant. Clearly, it was not in the bracket of more serious offending and the sentences of 8 months' imprisonment imposed on each count recognised that fact.

41 In all the circumstances, I consider that the sentences imposed by the learned sentencing judge were well within the range of sentences open to him and in accordance with the range of sentences commonly imposed for offences of this nature.

42 It was argued that the learned sentencing judge erred in failing to suspend the sentences of imprisonment, but no error was pointed to in relation to the learned sentencing judge's approach to that question. The contention was that the learned sentencing judge was wrong to categorise the offending as too serious to allow suspension.

43 The learned sentencing judge approached the matter in accordance with Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321 and no complaint is made about that. He considered the circumstances of the offending too serious to allow suspension and, in my view, rightly so. Of course, a sentence of suspended imprisonment is always open in cases such as this, but, as I pointed out in L at [41], it will generally (my emphasis) be a merciful disposition in cases of indecent dealing for that to occur. I repeat what I said:

That is not to say that a sentence of suspended imprisonment can never be imposed for offences of indecent assault of this nature. Clearly, such a sentence can be so imposed. It will, however, be a merciful disposition to suspend the sentences. Although in R v Chilvers [[2003] WASCA 87], McKechnie J at [25] considered the '[e]xceptional circumstances' must be shown to justify a sentence other than immediate imprisonment, I would not go so far as to say that exceptional circumstances need always be shown.

44 I can see no basis upon which it can be contended that the learned sentencing judge erred in failing to suspend the sentences.

45 This ground contends that if a sentence to be served immediately was the only disposition open, the sentences should have been served concurrently rather than cumulatively.

46 The submission overlooks the fact that the two offences committed by the appellant were clearly separated in time and the commission of the second offence aggravated the circumstances. Had there been but one offence of indecent dealing, it would have been bad enough, but to repeat the indecent dealing on a second occasion was a circumstance of aggravation.

47 Counsel for the appellant submitted that the second offence was of less seriousness because it involved the touching of the complainant on the outside of the complainant's clothing rather than inside. That submission fails to acknowledge that to have repeated the conduct made the circumstances of the offending far worse than they might otherwise have been. In any event, a touching on the outside of the complainant's clothing rather than placing the hand beneath her shirt is only a matter of marginal, if any, significance. It is indecent dealing by way of touching the complainant's breasts that constituted the offence. The impact upon her was much the same, whether she was touched from the inside or outside.

48 Because the offences committed by the appellant occurred on two distinct occasions, separated by a period of about two weeks, it was, in my view, appropriate that they should have been imposed cumulatively rather than concurrently. This is not a case in relation to which the so-called 'one transaction rule' applies. The offences were not committed in the course of a single transaction. They were offences which disclosed different and distinct conduct and which ordinarily would attract cumulative punishment: R v White [2002] WASCA 112, per McKechnie J (with whom Wallwork and Murray JJ agreed) at [25].

49 In the circumstances of this case, the question was whether the total criminality of the appellant's conduct justified the accumulation of the sentences. In Jarvis v The Queen (1993) 20 WAR 201 at 207, Ipp J put it this way:

The overriding principle is accordingly that the aggregate sentence (even when punishment is being imposed for multiple offences) should fairly and justly reflect the total criminality of the offender's conduct: see Veen v The Queen (No 2) [1988] HCA 14; (1988) 164 CLR 465; Evangelista v The Queen; R v Glenister [1980] 2 NSWLR 597 at 612; Lade v Mamarika [1986] NTSC 32; (1986) 83 FLR 312.

50 In Postiglione v The Queen [1997] HCA 26; (1997) 189 CLR 295, McHugh J at 308 said much the same:

The application of the totality principle therefore requires an evaluation of the overall criminality involved in all the offences with which the prisoner is charged [R v Hodder [1983] 3 NSWLR 245 at 260].

51 There can be no suggestion that the total sentence imposed was 'crushing' and in breach of the totality principle, as expressed in Postiglione. The aggregate sentence bore a proper relationship to the overall criminality of the appellant's offending behaviour.

52 In my opinion, the accumulation of the sentences to bring an aggregate sentence of 16 months' imprisonment was a proper measure of the appellant's criminality of conduct. I am unable to accept that there is any substance in ground 2.

53 In my opinion, both grounds of appeal should be dismissed.