The application for leave to appeal was referred to the hearing of the appeal.
[2]
The appellant does not submit that a different kind of sentence should have been imposed. Rather, it is submitted that the length of the term of imprisonment infringed the totality principle.
The appellant submits that whilst the criminal conduct was plainly serious, it did not fall towards the upper end of the range of seriousness of offences of this type. It was submitted that counts 2 and 4 were the most serious of the offences because they involved the appellant masturbating (count 2) and procuring the complainant to touch him on the penis (count 4) and then ejaculating onto the complainant's body. It is submitted that at the time the offences were committed, a very wide range of conduct could constitute a contravention of s 183 of the Criminal Code, including conduct that if committed under the current law would constitute offences that attract a higher maximum penalty. This is said to be relevant in assessing the seriousness of the offences relative to the maximum penalty.
In regard to the offences the subject of counts 14 and 15, it is submitted that these fell towards the lower end of the range of seriousness of offences of this type, even taking into account that they occurred in circumstances of aggravation, namely that the complainant was under the care, supervision and authority of the appellant at the relevant time.
It is accepted that it is relevant that the appellant's conduct involved offences against three separate complainants, all of whom were young children. However, they were not committed as part of a course of conduct because they occurred at two different stages in the appellant's life, separated by a period of about 13 years.
The appellant submits that his youth at the time counts 1 - 5 were committed, prior good character and rehabilitation were significant mitigating factors. It is also submitted that delay between the time the offences were committed and the appellant's conviction left him in a state of 'uncertain suspense' and that he had adopted a reasonable expectation that he would not be charged, given that both of the initial police investigations were closed without any charges being laid. It is not suggested that the sentencing judge failed to take any of these factors into account. Rather, these factors are said to be relevant to the question of whether the aggregate sentence that was imposed was disproportionate to the overall criminality of the appellant's conduct.
The appellant referred to a number of cases which are said to be comparable, and submitted that these cases show that total effective sentences less than or approximately equal to the total effective sentence that was imposed on the appellant have been imposed in circumstances in which the overall criminality in those cases was objectively more serious than that of the appellant.
[3]
The respondent submits that the appellant was fortunate to have received mitigation on the basis of cooperation with the police. Although he agreed to be interviewed, the appellant denied the offences on each occasion and police decided not to charge him. The respondent submits that it is not easy to see how participation in two interviews in which the appellant denied commission of the offences could reduce his level of culpability.
The respondent also submits that the appellant was fortunate to receive mitigation due to delay on the basis that there was evidence of rehabilitation. Ordinarily, rehabilitation requires insight into the wrongful nature of the conduct, remorse for that conduct and action taken to address the cause of the offending. However, the respondent submits that the extent to which rehabilitation could be inferred from the fact that the appellant had not reoffended since 1996 and had otherwise led a useful life was limited.
In regard to the suggestion that delay was mitigatory because the appellant had been left in suspense, the respondent submits that this amounts to a contention that the appellant should be rewarded because he was able to deflect the police by falsely denying the offences.
The respondent also submits that the extent to which youth mitigates the earlier offending is limited because the appellant committed further offences of the same kind when he was no longer young. It is suggested that this means that his offending did not result from the impulsivity of youth.
The respondent submits that consideration of comparable cases does not lead to a conclusion that the sentence imposed on the appellant was disproportionate to his total offending conduct.
[4]
A ground of appeal that alleges a breach of the totality principle asserts an implied or inferred error based on the sentencing outcome. 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, viewed in their entirety, and after having regard to all relevant circumstances, including those referrable to the offender personally, and the total effective sentences imposed in comparable cases.[18]
The practical effect of the totality principle is ordinarily to arrive at a total effective sentence which is less than that which would have been arrived at merely by adding up all the terms appropriate for the individual sentences.[19] The severity or leniency of an individual sentence may be relevant in evaluating whether the total effective sentence infringes the first limb of the totality principle.[20]
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.[21] 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 upon other people or upon the perception of the offender.[22]
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 personal circumstances of offenders. The sentence to be imposed in a particular case always depends on its individual facts and circumstances, having regard to the maximum penalty and all other relevant sentencing factors.[23]
The guidance afforded by comparable cases is flexible rather than rigid. The mere fact that 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 that a sentence is outside the range does not necessarily establish that the exercise of sentencing discretion in the particular case miscarried. The range of sentences imposed in comparable cases is merely one of the factors to be taken into account in deciding whether a total effective sentence infringes the first limb of the totality principle. Consideration of comparable cases may be of significance for the purpose of ensuring broad consistency in the sentencing of offenders. However, the sentences imposed in comparable cases do not fix the range of the sound exercise of the sentencing discretion in a particular case. Further, when this court dismisses an appeal against sentence, or when it allows an appeal against sentence and resentences the offender, the sentencing outcome does not, of itself, fix the upper or lower limits of the range.[24]
We have taken into account the numerous cases involving appeals against sentence for child sex offences referred to in the sentencing proceedings and in the submissions of the appellant and the respondent. The appellant places particular reliance on the following cases: SGT v The State of Western Australia;[25]PNS v The State of Western Australia;[26]EXF v The State of Western Australia;[27]RNN v The State of Western Australia,[28] and LWJR v The State of Western Australia.[29] Of these, most reliance is placed on RNN, LWJR and SGT.
In RNN, the 70-year-old offender pleaded guilty to five counts of indecent dealing with a child under 14 years and six counts of indecent assault against his three nephews. The offending included acts of masturbation and oral sex. The offender in that case received a 20% discount for his plea of guilty. Other mitigating factors included cooperation with the police, remorse, the offender's advanced age and his mental illness at the time one of the offences was committed. An appeal against a total effective sentence of 5 years' imprisonment was dismissed.
In LWJR, the offender entered fast-track pleas of guilty to seven offences of indecent dealing with a child under the age of 13. The offences related to the offender's very young daughters and involved digital penetration and fellatio. In that case, the offender had taken responsibility for his offending and undertaken rehabilitation programs prior to being charged. He had been an alcoholic at the time of the offending, which was causatively linked to his offending conduct. An appeal against a total effective sentence of 7 years' imprisonment was allowed and the appellant was resentenced to a total effective sentence of 5 years' imprisonment.
In SGT, the offender was convicted after trial of four offences of indecent dealing with a child and one offence of encouraging a child to engage in sexual behaviour. The offences occurred over a period of five years and the victim was the offender's natural daughter. An appeal against a total effective sentence of 4 years and 6 months' imprisonment was dismissed.
The respondent submits that each of those cases turned on the individual facts and that in a number of them there were mitigating factors not present in the case of the appellant. In particular, the respondent submits that the outcome in RNN is broadly consistent with the sentence imposed on the appellant.
In this case, the offences that were the subject of counts 1 to 4 were clearly the most serious. The other offences were all towards the lower end of the spectrum of offences of this type. That conclusion is not intended to detract from the serious consequences referred to by each of the complainants in their victim impact statements. Objectively, the offending in this case was less serious than that in RNN, LWJR and SGT. Whilst the offending occurred over a lengthy span of time, it was confined to two discrete periods. This was not a case where it was established that the offences were representative of a continuing course of conduct. Further, none of the other cases referred to involved an offender for whom youth was a mitigating factor.
The sentencing judge was correct to state that the appellant's youth at the time of the commission of counts 1 to 5 was a powerful mitigating factor. An offender's youth is important, both because the ability of a youthful offender to make reasoned decisions is less well-developed and because a youthful offender usually has better prospects of rehabilitation. A very young adult may be impressionable, impulsive and less cognisant of the seriousness of particular offending than an older person. Also, a lengthy term of imprisonment will ordinarily be a heavier burden on a very young adult.[30]
Where the offender commits an offence as a young person but, due to a delay, comes before the court as an adult, the increased importance of rehabilitation to a youthful offender is no longer applicable. However, the other mitigating aspects of youth remain relevant. In particular, it remains relevant to take into account that the offender was, by reason of his young age, more likely to be impressionable and impulsive and less likely to appreciate the seriousness of his conduct and its possible consequences.
In the present case, the appellant was aged between 18 and 19 when counts 1 - 5 occurred and was living at home with his parents. He had no prior history of sexual offending. The offences were opportunistic in nature. It was accepted by the trial judge that the appellant's youth was a significant mitigating factor in respect of these offences. The importance of that factor was not diminished by the subsequent offences, which occurred many years later and were very much less serious in nature.
As to the suggestion that delay was a mitigating factor here, delay is ordinarily only relevant if it is established that in the intervening period there has been some evidence of rehabilitation.[31] Such a conclusion is difficult to come to in circumstances where the offender has consistently denied the offences. That is not to deny that some credit is deserved for the long period in which there was no further offending. However, the suggestion that the appellant should be given credit for being held in suspense cannot be accepted. When interviewed about the offending involving the second and third complainants, the appellant denied the allegations and the cases were closed. There is nothing to suggest that in the following years he remained concerned that his offending would again be investigated. Even if that was the case, it could have no mitigatory value in circumstances where he had chosen to deny those offences.
Having regard to the appellant's youth when counts 1 - 5 were committed and the degree of seriousness of the offending overall, the total effective sentence was disproportionate to the appellant's overall criminal conduct. An implied error has been established and the appeal should be allowed.
[5]
This court has all relevant information available to it for the purpose of resentencing the appellant. The relevant factors in resentencing the appellant are:
[6]
(1) that there were seven offences of a sexual nature involving young vulnerable victims;
[7]
(2) that the offences occurred over a 13-year period, but in two separate and distinct periods;
[8]
(4) that there was a significant age difference between the appellant and each of the victims;
[9]
(5) that there was no finding that the offences were representative of any continuing course of abuse in respect of any of the victims;
[10]
(6) that the offending conduct in respect of counts 5, 14 and 15 was towards the lower end of the scale of seriousness relative to comparable cases;
[11]
(7) the appellant's youth at the time of counts 1 - 5, when the most serious of the offences was committed, was a significant mitigating factor; and
[12]
(8) that the appellant had no relevant prior record and good personal references (though such personal factors are of less significance in respect of this type of offending, they are not completely irrelevant).
[13]
There is no challenge to the individual sentences imposed by the sentencing judge. Each of those sentences was within the available range and appropriately reflected the seriousness of each offence. However, in order to achieve a total effective sentence that is proportionate to the overall criminality and reflects all of the factors referred to above, we would set aside the orders for accumulation made by the sentencing judge and in lieu thereof order that counts 2, 5 and 14 be served cumulatively and that the sentences on the other counts be served concurrently.
The new total effective sentence is, therefore, one of 3 years and 2 months. The orders that the total sentence be backdated to commence on the date that the appellant first went into custody, being 1 November 2017, and that the appellant be eligible for parole should remain.
[14]
(3) The sentences imposed on District Court Indictment 2249 of 2016 be varied by setting aside the orders for accumulation of the sentences on counts 2, 4, 5 and 15 and in lieu thereof ordering that the sentences on counts 2, 5 and 14 be served cumulatively. The new total effective sentence is 3 years 2 months' imprisonment, backdated to commence on 1 November 2017 and the appellant will remain eligible for parole.
[15]
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
[16]
[18]Cross v The State of Western Australia[2018] WASCA 86 [32] (Buss P, Mazza & Beech JJA).
[17]
[19] See Roffey v The State of Western Australia[2007] WASCA 246 [26] (McLure JA, Steytler P & Miller JA agreeing).
[18]
[20] See Giglia v The State of Western Australia[2010] WASCA 9 [40] (Owen JA, McLure P & Pullin JA agreeing).
[19]
[21] See Woods v The Queen(1994) 14 WAR 341, 345 - 346 (Anderson J, Malcolm CJ & Seaman J agreeing); PP v The State of Western Australia[2004] WASCA 144 [14] (McLure J, Malcolm CJ & Murray J agreeing); and M v The State of Western Australia[2006] WASCA 256 [30] (Wheeler JA, Steytler P & McLure JA agreeing).
[20]
[22] See MPD v The State of Western Australia[2008] WASCA 57 [58] (Miller JA, Wheeler & Buss JJA agreeing).
[24]Cross v The State of Western Australia[2018] WASCA 86 [32] (Buss P, Mazza & Beech JJA); The State of Western Australia v Wilson[2015] WASCA 119 [23] (Mazza JA, Martin CJ & Buss JA agreeing).