Criminal law - Appeal against sentence - Appellant convicted on his pleas of guilty of 9 sex offences against children - Two complainants - Total effective sentence of 9 years 6 months' imprisonment - Totality principle

Criminal Code (WA), s 204B(2)(a), s 320(4), s 321(2), s 321(4)

AIM v The State of Western Australia [2014] WASCA 155

APC v The State of Western Australia [2012] WASCA 159; (2012) 224 A Crim R 59

ARK v The State of Western Australia [2014] WASCA 45

CJF v The State of Western Australia [2012] WASCA 69

DKA v The State of Western Australia [2015] WASCA 112

F v The State of Western Australia [2008] WASCA 100

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

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

Giglia v The State of Western Australia [2010] WASCA 9

Headley v The State of Western Australia [2018] WASCA 37

Juma v The State of Western Australia [2011] WASCA 54

KC v The State of Western Australia [2008] WASCA 216

KSN v The State of Western Australia [2017] WASCA 156

LFG v The State of Western Australia [2015] WASCA 88; (2015) 48 WAR 178

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

M v The State of Western Australia [2006] WASCA 256

M v The State of Western Australia [2007] WASCA 238

Menmuir v The State of Western Australia [2018] WASCA 13

PP v The State of Western Australia [2004] WASCA 144

RDC v The State of Western Australia [2012] WASCA 16

RFS v The State of Western Australia [2012] WASCA 58

RJB v The State of Western Australia [2009] WASCA 49

Roffey v The State of Western Australia [2007] WASCA 246

Rowan v The State of Western Australia [2009] WASCA 185

SG v The State of Western Australia [2013] WASCA 236

The State of Western Australia v Akizuki [2008] WASCA 267; (2008) 192 A Crim R 373

The State of Western Australia v PJW [2015] WASCA 113

Truscott v The State of Western Australia [2007] WASCA 62

Van Zyl v The State of Western Australia [2017] WASCA 1

Woods v The Queen (1994) 14 WAR 341

1. The appellant has applied for leave to appeal against sentence. The appellant was charged on indictment with 10 counts which alleged that he committed various sexual offences against two different male children. Count 1 related to TP and counts 2 to 10 related to ND.
2. On 2 March 2018, the appellant was convicted, on his pleas of guilty, of counts 1 to 4 and 6 to 10. The State had discontinued count 5.
3. Count 1 alleged that on an unknown date between 1 October 2016 and 30 November 2016, at Rockingham, the appellant indecently dealt with TP, a child under the age of 13 years, by touching his penis, contrary to s 320(4) of the Criminal Code (WA) (the Code).
4. Count 2 alleged that on an unknown date between 1 December 2016 and 2 January 2017, at Rockingham, the appellant indecently dealt with ND, a child of or over the age of 13 years and under the age of 16 years, by touching each other's genitals, contrary to s 321(4) of the Code.
5. Count 3 alleged that on another unknown date between 1 December 2016 and 2 January 2017, at Rockingham, the appellant indecently dealt with ND, a child of or over the age of 13 years and under the age of 16 years, by touching each other's genitals, contrary to s 321(4) of the Code.
6. Count 4 alleged that on an unknown date between 1 December 2016 and 3 February 2017, at Rockingham, the appellant, being an adult, used electronic communication with intent to expose ND, a child under the age of 16 years, to indecent matter, contrary to s 204B(2)(a) of the Code.
7. Count 6 alleged that on an unknown date between 10 January 2017 and 3 February 2017, at Rockingham, the appellant sexually penetrated ND, a child of or over the age of 13 years and under the age of 16 years, by performing fellatio on him, contrary to s 321(2) of the Code.
8. Count 7 alleged that on an unknown date between 15 January 2017 and 3 February 2017, at Rockingham, the appellant sexually penetrated ND, a child of or over the age of 13 years and under the age of 16 years, by penetrating ND's anus with the appellant's penis, contrary to s 321(2) of the Code.
9. Count 8 alleged that on 3 February 2017, at Rockingham, the appellant sexually penetrated ND, a child of or over the age of 13 years and under the age of 16 years, by introducing the appellant's penis into ND's mouth, contrary to s 321(2) of the Code.
10. Count 9 alleged that on the same date and at the same place as in count 8, the appellant sexually penetrated ND, a child of or over the age of 13 years and under the age of 16 years, by performing fellatio on him, contrary to s 321(2) of the Code.
11. Count 10 alleged that on the same date and at the same place as in count 8, the appellant sexually penetrated ND, a child of or over the age of 13 years and under the age of 16 years, by penetrating ND's anus with the appellant's penis, contrary to s 321(2) of the Code.
12. The maximum penalty for:

(a) each offence contrary to s 321(2) of the Code (being counts 6 to 10) was 14 years' imprisonment;

(b) each offence contrary to s 321(4) of the Code (being counts 2 and 3) was 7 years' imprisonment;

(c) the offence contrary to s 320(4) of the Code (being count 1) was 10 years' imprisonment; and

(d) the offence contrary to s 204B(2)(a) of the Code (being count 4) was 5 years' imprisonment.

1. On 2 March 2018, Troy DCJ sentenced the appellant as follows:

(f) count 7: 4 years 6 months' immediate imprisonment;

(h) count 9: 1 year 9 months' immediate imprisonment; and

1. His Honour ordered that the sentences for counts 1, 6, 7, 8 and 10 be served cumulatively and that the sentences for the other counts be served concurrently with each other and concurrently with the sentence for count 7 (being the head sentence). The total effective sentence was therefore 9 years 6 months' imprisonment. A parole eligibility order was made. The total effective sentence was backdated to 7 February 2017.
2. The sole ground of appeal alleges, in essence, that the total effective sentence of 9 years 6 months' imprisonment infringed the first limb of the totality principle.
3. The appellant submitted that it was apparent from the sentencing standards established by previous cases involving similar criminality that the total effective sentence imposed on the appellant does not bear a proper relationship to the overall criminality of his conduct, having regard to all relevant circumstances.
4. We would refuse leave to appeal and dismiss the appeal. Our reasons are as follows.

The facts and circumstances of the offending

1. TP was aged 8 years at the time of the offending the subject of count 1. The appellant was then aged 38 and a friend of TP's family. On a night during October or November 2016, the appellant and his partner cared for TP. When the appellant and TP were watching television, the appellant rubbed TP's penis on the outside of his clothes until TP told him to stop. He did so. The appellant instructed TP not to tell anyone what had happened.
2. ND was aged 13 years at the time of the offending the subject of counts 2 to 4 and 6 to 10. The appellant was then aged 38 and a friend and neighbour of ND's family.
3. As to count 2, on an occasion between 1 December 2016 and 2 January 2017, ND was at the appellant's house. The appellant and ND were playing a game of pool inside the house. During the game the appellant began touching ND's genitals over his clothing. The appellant then told ND to go to a shed at the rear of the property. The appellant accompanied ND. When they were in the shed the appellant told ND to pull down his pants. ND did so and thereby exposed his penis. The appellant held ND's penis and fondled it. The appellant then pulled down his own pants and exposed his penis. The appellant told ND that he could touch the appellant's penis if he wanted. The appellant placed his penis in ND's hand. At the appellant's request, ND fondled the appellant's penis.
4. As to count 3, on another occasion between 1 December 2016 and 2 January 2017, ND was at the appellant's house. The appellant took ND to the shed. The appellant pulled down ND's pants and began fondling ND's genitals. The appellant then pulled down his own pants and placed ND's hand on the appellant's penis. The appellant instructed ND that they should fondle each other's penis. This activity continued for a period of time. They then returned to the house. Later, on the same evening and at the appellant's suggestion, the appellant and ND returned to the shed. The appellant pulled down ND's pants and again fondled ND's penis.
5. As to count 4, on an occasion between 1 December 2016 and 3 February 2017, the appellant used his mobile telephone to take and send to ND two electronic images of the appellant's penis. ND responded by taking and sending to the appellant an electronic image of ND's penis.
6. As to count 6, on an occasion between 10 January 2017 and 3 February 2017, ND was at the appellant's house. The appellant and ND were in the appellant's bedroom. The appellant removed ND's penis from his pants and masturbated him. Next, the appellant performed oral sex on ND. The appellant then resumed masturbating ND until ND ejaculated.
7. As to count 7, on an occasion between 15 January 2017 and 3 February 2017, ND was at the appellant's house. The appellant and ND were in the appellant's bedroom. After some preliminary sexual contact between them, the appellant penetrated ND's anus with his penis. The appellant engaged in anal intercourse with ND for a period of time.
8. As to counts 8, 9 and 10, on 3 February 2017, ND was at the appellant's house. The appellant and ND were in the appellant's bedroom. The appellant pulled down his own pants and then pulled down ND's pants. The appellant began fondling ND's penis. At the appellant's invitation, ND began fondling the appellant's penis. Next, the appellant and ND performed oral sex on each other. The appellant then penetrated ND's anus with his penis. The appellant engaged in anal intercourse with ND for a period of time.

The appellant's personal circumstances, the expert reports and the sentencing judge's sentencing remarks

1. As we have mentioned, the appellant was aged 38 at the time of the offending. He had a deprived upbringing. The appellant's mother physically abused him when he was a child. The appellant was sexually abused at the age of 5 by a babysitter and later by a teacher. He was isolated and bullied at school. The appellant did, however, have supportive grandparents. His grandmother died in 1998.
2. The appellant has a significant prior criminal record. In 2009, he was convicted of 6 counts of indecent dealing with a child under the age of 13 years and two counts of sexual penetration of a child under the age of 13 years. In February 2010, the appellant was convicted of another count of indecent dealing with a child under the age of 13 years. The offences involved three girls and occurred between January 2008 and March 2009. The appellant had been friends with the parents of the victims. A total effective sentence of 4 years 6 months' immediate imprisonment was imposed in respect of the offences for which the appellant was sentenced in 2009. A sentence of 3 months' immediate imprisonment was imposed in respect of the offence for which he was sentenced in February 2010 (to be served concurrently with the total effective sentence of 4 years 6 months' immediate imprisonment). A parole eligibility order was made. In 2011, while he was in custody, the appellant completed the Sex Offender Intensive Programme. In 2012, the Prisoners Review Board refused to release the appellant on parole because it was concerned about the risk of his reoffending.
3. The information before the sentencing judge included a psychological report dated 10 November 2017 from Ms Julie Hasson, a forensic psychologist, and a pre-sentence report dated 1 December 2017.
4. In the psychological report Ms Hasson said:

(a) The appellant presented as glib and superficial. He appeared to be disingenuous in his responses to many questions, especially concerning his offending behaviour and his understanding of the legal system.

(b) The appellant admitted that he had committed all of the offences in question except for counts 7 and 10. He denied that he had penetrated ND's anus with his penis.

(c) The appellant was 'well above average risk' of sexually reoffending. He had significant treatment needs pertaining to his sexual deviance; relationship difficulties; intimacy deficits; substance abuse; coping skills deficits; unstable personality traits; and cognitive skills deficits.

1. The appellant informed the author of the pre-sentence report that 'part of [him was] attracted to children'. This attraction was towards both male and female 'teenagers'. He denied any sexual attraction to prepubescent children of either gender.
2. The sentencing judge noted in his sentencing remarks:

(a) All of the offences in question occurred before the appellant separated from his partner. His Honour would, in any event, have rejected any assertion that the separation was the catalyst for the offending (ts 29).

(b) The appellant had 'a complete lack of insight' into the offending. His completion in 2011 of the Sex Offender Intensive Programme did not 'stand in the way' of his having repeatedly reoffended when he had the opportunity to do so (ts 30).

(c) The appellant's offending was at 'the higher end of the scale of seriousness'. He breached 'a situation of trust'. His criminal history demonstrated that the offending was 'far from uncharacteristic'. He abused both victims for his own sexual gratification (ts 31).

(d) ND's victim impact statement demonstrated vividly the harm which the appellant had caused to him and to members of his family. The offending affected his school work adversely. He spent a week at Princess Margaret Hospital and he has undergone counselling (ts 31).

(e) Although the appellant's offending did not involve threats, physical coercion or acts of violence, the absence of those factors merely demonstrated that his offending could have been worse. The absence of those factors did not diminish the seriousness of what he actually did to the victims (ts 31).

(f) His Honour afforded the appellant a discount of 20% on each head sentence he would otherwise have imposed, pursuant to s 9AA of the Sentencing Act 1995 (WA), on account of the pleas of guilty.

1. The first limb of the totality principle requires that the total effective sentence imposed on an offender who has committed multiple offences must bear 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 a term of imprisonment), viewed in their entirety, and after having regard to all relevant circumstances, including those referable to the offender personally (and including, for example, the desirability of accommodating any wish to rehabilitate), and the total effective sentences imposed in comparable cases.
2. The practical effect of the totality principle is ordinarily to arrive at an aggregate sentence which is less than that which would have been arrived at merely by adding up all of the terms appropriate for the individual offences. See Roffey v The State of Western Australia[1] (McLure JA; Steytler P & Miller JA agreeing). Also, the severity or leniency of an individual sentence (which is nevertheless within the 'available range' of sentences) is relevant in evaluating whether the total effective sentence infringes the first limb of the totality principle. See Giglia v The State of Western Australia[2] (Owen JA; McLure P & Pullin JA agreeing); Gaskell v The State of Western Australia[3] [52] - [60] (Buss P), [150] - [151] (Mazza & Beech JJA).
3. 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. See Woods v The Queen[4] (Anderson J; Malcolm CJ & Seaman J agreeing); PP v The State of Western Australia[5] (McLure J; Malcolm CJ & Murray J agreeing); M v The State of Western Australia[6] (Wheeler JA; Steytler P & McLure JA agreeing).
4. 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. See The State of Western Australia v Akizuki[7] (Steytler P); Juma v The State of Western Australia[8] (McLure P, Newnes JA & Mazza J).
5. The guidance afforded by comparable cases is flexible rather than rigid. The mere fact a sentence is within the range of other sentences imposed for similar offending does not necessarily establish that there was an appropriate exercise of the sentencing discretion in the particular case. Similarly, the mere fact a sentence is outside the range does not necessarily establish that the exercise of the sentencing discretion in the particular case miscarried.
6. A sentencing range for comparable cases is merely one of the factors to be taken into account in deciding whether an individual sentence is manifestly excessive or a total effective sentence infringes the first limb of the totality principle. A range of sentences customarily imposed is of significance for the purpose of ensuring broad consistency in the sentencing of offenders in broadly comparable cases. However, a sentencing range for comparable cases does not fix the range of a sound exercise of the sentencing discretion in a particular case.
7. When this court dismisses an appeal against sentence, and when it allows an appeal against sentence and resentences the offender, this court's decision on the sentencing outcome does not, of itself, fix the upper or lower limit of the range.
8. We have considered a number of cases with at least some features comparable to the appellant's offending. See, in particular, RDC v The State of Western Australia;[9] RFS v The State of Western Australia;[10] CJF v The State of Western Australia;[11] APC v The State of Western Australia;[12] SG v The State of Western Australia;[13] ARK v The State of Western Australia;[14] AIM v The State of Western Australia;[15] LFG v The State of Western Australia;[16] DKA v The State of Western Australia;[17] The State of Western Australia v PJW;[18] LJH v The State of Western Australia;[19] KSN v The State of Western Australia;[20] Headley v The State of Western Australia;[21] and the cases referred to in those decisions. We have also considered other cases cited by the appellant; in particular, Truscott v The State of Western Australia;[22] M v The State of Western Australia;[23] F v The State of Western Australia;[24] KC v The State of Western Australia;[25] RJB v The State of Western Australia;[26] Rowan v The State of Western Australia;[27] FWB v The State of Western Australia;[28] Van Zyl v The State of Western Australia;[29] and .
9. It is unnecessary to reproduce the relevant facts and circumstances or the sentences imposed in the previous cases. There are some comparable features between some of those cases, on the one hand, and the present case, on the other, but there are also distinguishing features.
10. In the present case, the very serious nature of the appellant's offending is apparent from our summary of the facts and circumstances of the offending and the sentencing judge's sentencing remarks.
11. The appellant took advantage of his friendship with the victims' parents to sexually abuse their children. There was an element of grooming in relation to ND. The appellant invited and encouraged ND to engage in further and different sexual activity. The seriousness of the offences escalated. The offending involved a significant degree of moral corruption of ND. The appellant's criminal behaviour was persistent. The offending against ND involved six discrete episodes.
12. The victims were highly vulnerable. The impact of the offending has been severe in the case of ND.
13. The appellant's prior criminal record, and any failure of previous sentences to achieve the purpose for which they were imposed, did not, of course, aggravate the offending in question, but his record demonstrated that he was not of good character and underscored the importance of personal deterrence and the protection of vulnerable children as sentencing factors. The appellant is 'well above average risk' of sexually reoffending.
14. The appellant was not youthful or inexperienced for sentencing purposes.
15. As we have mentioned, during an interview with Ms Hasson, the appellant denied having anally penetrated ND.
16. The total effective sentence of 9 years 6 months' imprisonment is broadly consistent with the sentencing outcomes in other cases with comparable features.
17. In our opinion, the total effective sentence of 9 years 6 months' imprisonment did not infringe the first limb of the totality principle. A custodial term of that length was necessary in order properly to reflect the very serious character of the appellant's offending, viewed as a whole, and to give effect to the sentencing considerations of appropriate punishment and personal and general deterrence, having regard to the need to protect vulnerable children. The total effective sentence bears a proper relationship to the criminality involved in all of the offences, viewed together, and having regard to all relevant facts and circumstances and all relevant sentencing factors, including the seriousness of the overall offending, the vulnerability of the victims, the pattern of sentencing in reasonably comparable cases and the matters of mitigation referred to by his Honour (primarily, the pleas of guilty).
18. It is not reasonably arguable that error by the sentencing judge in the exercise of his discretion should be inferred, based on the first limb of the totality principle, from the sentencing outcome. The total effective sentence of 9 years 6 months' imprisonment was not unreasonable or plainly unjust.
19. The sole ground of appeal is without merit.

1. The sole ground of appeal does not have a reasonable prospect of success. Leave to appeal should be refused. The appeal must be dismissed.

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

[1] Roffey v The State of Western Australia [2007] WASCA 246 [26].

[2] Giglia v The State of Western Australia [2010] WASCA 9 [39] - [40].

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

[4] Woods v The Queen (1994) 14 WAR 341, 345 - 346.

[5] PP v The State of Western Australia [2004] WASCA 144 [14].

[6] M v The State of Western Australia [2006] WASCA 256 [30].

[7] The State of Western Australia v Akizuki [2008] WASCA 267; (2008) 192 A Crim R 373 [3], [67] - [69].

[8] Juma v The State of Western Australia [2011] WASCA 54 [37] - [38].

[9] RDC v The State of Western Australia [2012] WASCA 16.

[10] RFS v The State of Western Australia [2012] WASCA 58.

[11] CJF v The State of Western Australia [2012] WASCA 69.

[12] APC v The State of Western Australia [2012] WASCA 159; (2012) 224 A Crim R 59.

[13] SG v The State of Western Australia [2013] WASCA 236.

[14] ARK v The State of Western Australia [2014] WASCA 45.

[15] AIM v The State of Western Australia [2014] WASCA 155.

[16] LFG v The State of Western Australia [2015] WASCA 88; (2015) 48 WAR 178.

[17] DKA v The State of Western Australia [2015] WASCA 112.

[18] The State of Western Australia v PJW [2015] WASCA 113.

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

[20] KSN v The State of Western Australia [2017] WASCA 156.

[21] Headley v The State of Western Australia [2018] WASCA 37.

[22] Truscott v The State of Western Australia [2007] WASCA 62.

[23] M v The State of Western Australia [2007] WASCA 238.

[24] F v The State of Western Australia [2008] WASCA 100.

[25] KC v The State of Western Australia [2008] WASCA 216.

[26] RJB v The State of Western Australia [2009] WASCA 49.

[27] Rowan v The State of Western Australia [2009] WASCA 185.

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

[29] Van Zyl v The State of Western Australia [2017] WASCA 1.

[30] Menmuir v The State of Western Australia [2018] WASCA 13.