Criminal law - Appeal against sentence - Appellant convicted after trial on nine counts of child sex offending - Individual sentence of 5 years 8 months' imprisonment - Total effective sentence of 7 years 8 months' imprisonment - Manifest excess - Assessment of the serious of the appellant's offending - Totality principle

Criminal Code (WA), s 329(2), s 329(4), s 329(9), s 329(10)

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

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

MPD v The State of Western Australia [2008] WASCA 57

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

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

Woods v The Queen (1994) 14 WAR 341

1 BUSS JA: The appellant has applied for leave to appeal against sentence.

2 He was charged on indictment with 20 counts of child sex offending.

3 After a trial in the District Court before Herron DCJ and a jury the appellant was convicted on nine counts, being counts 1, 2, 3, 6, 7, 10, 11, 17 and 20. He was acquitted on the other counts.

4 Count 1 alleged that on a date unknown between 1 February 2006 and 30 August 2006, at Orelia, the appellant indecently dealt with K, a child who he then knew to be his de facto child, by moving her hand on his penis, and that K was a child under the age of 16 years, contrary to s 329(4) read with s 329(10)(a) of the Criminal Code (WA) (the Code).

5 Count 2 alleged that on another date unknown between 1 February 2006 and 30 August 2006, at Orelia, the appellant indecently dealt with K, a child who he then knew to be his de facto child, by touching her vagina, and that K was a child under the age of 16 years, contrary to s 329(4) read with s 329(10)(a) of the Code.

6 Count 3 alleged that on the same unknown date and at the same place as in count 2, the appellant indecently dealt with K, a child who he then knew to be his de facto child, by forcing her to rub his penis, and that K was a child under the age of 16 years, contrary to s 329(4) read with s 329(10)(a) of the Code.

7 Count 6 alleged that on another date unknown between 1 July 2006 and 31 December 2007, at Orelia, the appellant indecently dealt with K, a child who he then knew to be his de facto child, by touching her vagina, and that K was a child under the age of 16 years, contrary to s 329(4) read with s 329(10)(a) of the Code.

8 Count 7 alleged that on the same unknown date and at the same place as in count 6, the appellant indecently dealt with K, a child who he then knew to be his de facto child, by forcing her to rub his penis, and that K was a child under the age of 16 years, contrary to s 329(4) read with s 329(10)(a) of the Code.

9 Count 10 alleged that on another date unknown between 1 July 2006 and 31 December 2007, at Orelia, the appellant sexually penetrated K, a child who he then knew to be his de facto child, by penetrating her vagina with his fingers, and that K was a child under the age of 16 years, contrary to s 329(2) read with s 329(9)(a) of the Code.

10 Count 11 alleged that on the same unknown date and at the same place as in count 10, the appellant indecently dealt with K, a child who he then knew to be his de facto child, by forcing her to rub his penis, and that K was a child under the age of 16 years, contrary to s 329(4) read with s 329(10)(a) of the Code.

11 Count 17 alleged that on another date unknown between 1 July 2006 and 31 December 2007, at Orelia, the appellant indecently dealt with K, a child who he then knew to be his de facto child, by rubbing her vagina with his foot, and that K was a child under the age of 16 years, contrary to s 329(4) read with s 329(10)(a) of the Code.

12 Count 20 alleged that on another date unknown between 1 July 2006 and 31 December 2007, at Orelia, the appellant sexually penetrated K, a child who he then knew to be his de facto child, by penetrating her vagina with his penis, and that K was a child under the age of 16 years, contrary to s 329(2) read with s 329(9)(a) of the Code.

13 On 1 October 2014, the trial judge sentenced the appellant. His Honour imposed individual sentences of immediate imprisonment as follows:

(a) as to each of counts 1, 2, 3, 6, 7 and 11: 2 years;

14 His Honour ordered that the sentence for count 2 be served cumulatively upon the sentence for count 20, and that the sentences for the other counts be served concurrently with each other and concurrently with the sentence for count 20.

15 The total effective sentence was therefore 7 years 8 months' imprisonment. The trial judge backdated the total effective sentence to 11 September 2014, when the appellant was taken into custody for the offences.

17 The trial judge made findings in relation to the facts and circumstances of the appellant's offending, as follows:

During 2005 you recommenced a relationship with K's mother, C. You had previously been in a de facto relationship with C and had two children together.

After your relationship ended, C formed a relationship with a John and had two children together with him, K and her younger brother. It was after that relationship ended you renewed your relationship with C.

You and C decided to leave Victoria and move together to Western Australia with C's two young children, K and her brother. You travelled to Perth in late 2005. For a few weeks until you could obtain rental accommodation you all lived in a caravan park.

In early 2006 you entered into a six month lease [of a house] in Orelia. It was a three bedroom house. You and C shared one bedroom and K and her brother had a bedroom each. The first three indecent dealing offences of which you have been convicted occurred in the [Orelia] house between 1 February 2006 and 30 August 2006.

K was born [in] 1995. She was therefore aged 10 years when you first offended against her. The first time you offended against K occurred in early 2006. It occurred when you and K were sitting next to each other on the couch in the lounge room watching car racing on TV.

You took K's hand, placed it onto your shorts on top of your underwear and moved her hand up and down on your penis. You then lowered your shorts, exposing your erect penis and kept moving K's hand on your penis, rubbing your erect penis.

K tried to pull her hand away. You continued to use your hand on her hand to keep rubbing your penis. You then got up and left the room. I'm satisfied that after that incident you told K everything was going to be fine, not to worry and not to tell anyone.

The offending on this occasion and on all of the other occasions occurred when K's mother was away from the house probably working and when her mother was not there to protect her.

The incidents the subject of counts 2 and 3 occurred at the same time as each other but after the incident the subject of count 1. In count 2 while K was asleep in her bedroom you came into her bedroom and you put your hand inside her pyjamas and underwear, touching her vagina while she was asleep.

She awoke in a fright while that was occurring. You were kneeling beside her bed. You then pulled her to the side of the bed closer to you and put her hand down your shorts onto your penis and told her to play with your penis. Her hand touched the skin of your penis.

You continued to play with her vagina while her hand was on your penis. You were touching the top of her vagina. Your hand was on top of K's hand forcing it to move up and down on your penis. After a while you got up and you left her bedroom.

The remaining offences of which you have been convicted occurred after you'd moved into [another house in Orelia]. You moved into that house in about July 2006. The offences of which you have been convicted on counts 6, 7, 10 and 11 occurred between 1 July 2006 and 31 July 2007 when K was aged 11.

The circumstances in which you indecently dealt with K the subject of your convictions on ... counts 6 and 7 are as follows. You came into K's bedroom after she had gone to bed. You got her out of bed and put her up against the wall. You pulled her pants down and touched her vagina and tried to insert your fingers into her vagina.

At the same time you pulled down your own pants and made her play with your penis by putting her hand on your penis. While you tried to insert your fingers in her vagina it was very painful and K told you it hurt.

[She] said that you stopped trying to insert your fingers but then a few minutes later [you] again tried to insert your fingers. This was the first time you'd tried to insert your fingers into her vagina rather than rubbing her vagina.

The incident the subject of your convictions on counts 10 and 11 occurred at the same time as each other. During the day, after you showed K pornography you were watching on your computer in the lounge room, you took her into your bedroom, placed her on a bed, removed or made her take off her clothing and lie on the bed.

You positioned her back against the bed head and from her waist down on the bed. You inserted your fingers into her vagina [and] at the same time forced her to masturbate your penis by playing with or rubbing your penis. K has said in evidence she didn't know where her mother and brother were at the time.

The incident the subject of your conviction on count 17 occurred when you were watching pornography on your computer in the lounge room. You made K sit on the floor next to your chair. She was sitting with her legs crossed. You then told her to spread her legs and you used your foot with a sock on it to rub the outside of her vagina through her clothes.

Finally, your conviction the subject of count 20 occurred when you took K into your bedroom, removed her clothes and your clothes, made her lie on the bed and then you ... knelt over her and ... penetrated her vagina with your penis. This is the first time you had actually inserted your penis into her vagina.

K gave evidence which I accept that you kept pushing and pushing and she couldn't help but move because it hurt her. It didn't matter what she did, it didn't matter what she said. You kept pushing and pushing until your penis went into her vagina.

When you started thrusting she yelled and she kept moving. You kept trying but because she kept moving and yelling, you ended up getting off her. At that time she was aged 12 years. She had not long started high school (ts 2 - 5).

18 The appellant gave sworn evidence at the trial. He denied having sexually offended against K as alleged or at all.

19 His Honour found that, consistent with the verdicts of the jury, the appellant had sexually offended against K 'on an ongoing systematic basis over an extended period of time [of] about two and a half years' (ts 5). During that time the seriousness of the appellant's offending escalated. The incidents of offending were not isolated. However, his Honour stressed that he was only sentencing the appellant in respect of the offences of which he had been convicted.

20 The trial judge referred to a number of matters which demonstrated the seriousness of the appellant's overall offending. First, K was at all material times the appellant's de facto child and she was under his care and supervision. Secondly, at relevant times K was aged between 10 and 12 years. There was a significant age disparity between the appellant and K. At relevant times the appellant was aged between 47 and 49. Thirdly, the appellant's position of authority in relation to K enabled him to hide the offending from C. Fourthly, the two occasions on which the appellant sexually penetrated K caused her significant pain and discomfort. Although K attempted to move away from or avoid his actions, the appellant persisted in sexually penetrating her. Fifthly, the offences occurred in the home in which the appellant, C and the children lived as a family. K was entitled to expect safety when she was with the appellant in her home. Sixthly, some of the offences occurred at night and in circumstances where the appellant's offending awoke K. She had been asleep and was extremely vulnerable.

21 His Honour was satisfied that K was confused and frightened by the appellant's offending and that this deterred her from reporting the offending to her mother earlier. The offending persisted over a number of years and only ended when the appellant and C separated, and C and K returned to Victoria.

22 After K returned to Victoria with her mother, the appellant sent K regular and unsolicited sums of money. The trial judge found that the appellant's purpose in making these payments was to '[buy] her silence'. K did not report the offending to her mother until about January 2011. His Honour was satisfied that she did not complain earlier because she was very young and confused and, also, frightened of the appellant.

23 His Honour made detailed reference to K's victim impact statement and then concluded:

Clearly the impact your offending has had on [K] has deeply affected her and in my view is likely to continue to impact upon her significantly for a long period of time (ts 9).

24 The trial judge noted the appellant's personal circumstances and antecedents. At the time of sentencing the appellant was aged 56. He left school after completing year 11. The appellant had never been unemployed. Work was a very important aspect of his life and he was well regarded and respected by work colleagues. The appellant had previously had a medical condition affecting his lung. This required surgery. However, at the time of sentencing, the appellant was in good health. He had no relevant prior criminal record and his Honour sentenced him on the basis that he was a first offender. The authors of a number of written references spoke well of the appellant. His partner, with whom he had been in a relationship for about two and a half years, remained very supportive.

25 The appellant maintained his stance of denial in relation to the offending. He showed no remorse or acceptance of responsibility. There was no evidence that the appellant had taken any steps towards his rehabilitation.

26 His Honour made the following comments about the level of seriousness of the appellant's offending:

In assessing your level of culpability I've taken into account, in particular, that the offending often occurred at night in your house, when the child was entitled to expect she was safe, that there was some persistence in your conduct despite the child resisting you and when her mother was away from the house and unable to protect her.

Your offending involved, as I've already mentioned, a gross violation of trust which is likely to have long term consequences for [K]. Your offending is towards the upper end of the scale of offending against a child. While it is not the most serious offending, it is certainly towards the upper end of the scale of seriousness of offending (ts 11).

27 The appellant relies on five proposed grounds of appeal.

28 Ground 1 alleges that the sentence of 5 years 8 months' imprisonment for count 20 was manifestly excessive.

29 Ground 2 alleges that the trial judge erred in characterising the offending on count 20 as being towards the upper end of the scale of seriousness of offences of that type.

30 Ground 3 alleges that his Honour erred in characterising the appellant's offending as being towards the upper end of the scale of seriousness of offences of the type for which he was being sentenced.

31 Ground 4 alleges that the total effective sentence infringed the first limb of the totality principle.

32 Ground 5 alleges that his Honour erred in the application of the first limb of the totality principle 'by having regard to, and determining the total effective sentence on the basis of, the sentence imposed in respect of count 20 which sentence was in error for the reasons contained in grounds 1 and 2'.

33 The maximum penalty for the offence of sexually penetrating a child who the offender knows is his or her de facto child, where the child is under the age of 16 years, is 20 years' imprisonment. See s 329(2) read with s 329(9)(a) of the Code.

34 It is necessary, in determining whether a sentence is manifestly excessive, to examine it from the perspective of the maximum penalty for the offence, the standards of sentencing customarily observed with respect to the offence, the place which the criminal conduct occupies on the scale of seriousness of offences of the kind in question, and the personal circumstances and antecedents of the offender.

35 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 (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); M v The State of Western Australia [2006] WASCA 256 [30] (Wheeler JA, Steytler P & McLure JA agreeing).

36 It is well-established that in cases of intra-familial sexual abuse, matters personal to the offender are of less mitigatory weight than might otherwise be the case. The fact that an offender is otherwise of good character has only little weight because the offences are of a kind that, until revealed, generally do not impact on other people or upon their perception of the offender. See MPD v The State of Western Australia [2008] WASCA 57 [58] (Miller JA, Wheeler & Buss JJA agreeing).

37 There is no tariff for offences of the kind in question (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 considerations. It is important, however, to appreciate what sentences are customarily imposed in cases involving similar offending, for the purpose of avoiding the risk of sentencing becoming idiosyncratic and arbitrary. See The State of Western Australia v Akizuki [2008] WASCA 267; (2008) 192 A Crim R 373 [68] - [69] (Steytler P, McLure JA agreeing).

38 I 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 [2012] WASCA 16; RFS v The State of Western Australia [2012] WASCA 58; CJF v The State of Western Australia [2012] WASCA 69; APC v The State of Western Australia [2012] WASCA 159; (2012) 224 A Crim R 59; SG v The State of Western Australia [2013] WASCA 236; ARK v The State of Western Australia [2014] WASCA 45; and the cases referred to in those decisions. I have also considered other cases cited by counsel for the appellant.

39 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.

40 The limits of the guidance afforded by comparable cases are flexible rather than rigid. A sentencing range 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 totality principle. The mere fact that a sentence is within the range of other sentences imposed for similar offences 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 that range does not necessarily establish that the exercise of the sentencing discretion in the particular case miscarried.

41 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.

42 In the present case, count 20 involved especially egregious offending. The appellant penetrated K's vagina with his penis. She was then aged 12. He was 48 or 49. The penetration caused K significant pain and discomfort. The appellant persisted in penetrating her vagina with his penis despite K calling out and moving her body to try and avoid the appellant's actions. The offence occurred while K was in her own home and under the appellant's care and supervision. She was extremely vulnerable. The offence involved some premeditation and planning. Later, the appellant endeavoured to buy K's silence by giving her money. All of the offending, including count 20, caused K to suffer significant long-term harm.

43 The appellant's personal circumstances and antecedents were favourable, but that is not unusual in offending of this kind. Otherwise, there was little by way of mitigation. The appellant did not have the mitigation that a plea of guilty would have brought. He continued to deny that any of the offending had occurred and he showed no remorse or acceptance of responsibility.

44 In my opinion, it is not reasonably arguable that the sentence of 5 years 8 months' imprisonment for count 20 was manifestly excessive. That is, when the sentence is viewed from the perspective of the maximum penalty (20 years' imprisonment), and after taking into account all relevant facts and circumstances and all relevant sentencing factors, including:

(c) the general pattern of sentencing for offences of the kind in question;

(d) the importance of appropriate punishment and personal and general deterrence, having regard to the need to protect vulnerable children, as sentencing factors; and

it is apparent that the length of the sentence was not unreasonable or plainly unjust. The term of 5 years 8 months was commensurate with the seriousness of the offence and was within the range open to the trial judge on a proper exercise of the sentencing discretion.

46 It is convenient to consider grounds 2 and 3 together.

47 The trial judge made an assessment of the seriousness of the appellant's overall offending on the scale of sex offending against children (ts 11). His Honour did not make a separate or individual characterisation in relation to count 20.

48 In my opinion, his Honour was correct in stating that, while the appellant's overall offending '[was] not the most serious offending', it was 'towards the upper end of the scale of seriousness of offending' of the kind in question (ts 11).

49 The complaints in grounds 2 and 3 are without merit.

50 It is convenient to consider grounds 4 and 5 together.

51 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 or is yet to serve a term of imprisonment), viewed in their entirety, having regard to all relevant facts and circumstances including those referable to the offender personally (and including, for example, the desirability of accommodating any wish to rehabilitate), all relevant sentencing factors and the total effective sentences imposed in comparable cases.

52 There is no substance in ground 5. As I have explained, the sentence of 5 years 8 months' imprisonment for count 20 was not manifestly excessive.

53 I have already referred to the maximum penalty for the sexual penetration offences. The maximum penalty for the indecent dealing offences was 10 years' imprisonment. See s 329(4) read with s 329(10)(a) of the Code.

54 As I have said, his Honour was correct in characterising the appellant's overall offending as 'towards the upper end of the scale of seriousness of offending' of the kind in question (ts 11). His Honour mentioned, appropriately, a number of matters which demonstrated the seriousness of the appellant's overall offending. See [20] above. The grounds of appeal do not challenge any of his Honour's findings of fact. The appellant's use of K for his own sexual gratification has had a significant adverse effect on her social and emotional development and well-being. His criminal behaviour will have a long-term detrimental impact on her. The fact that some aggravating factors were absent from the appellant's overall offending does not diminish the seriousness of his actual conduct in relation to K. It merely shows that his overall offending could have been worse. As I have noted, there was little by way of mitigation.

55 In my opinion, the total effective sentence of 7 years 8 months' imprisonment did not infringe the first limb of the totality principle. The term of 7 years 8 months was required in order to reflect the very serious nature of the appellant's offending and to give effect to the primary sentencing considerations of appropriate punishment and personal and general deterrence, having regard to the need to protect vulnerable children. An accumulation of some of the individual sentences was necessary. 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 pattern of sentencing in reasonably comparable cases and the limited mitigation.

56 It is not reasonably arguable that error by the trial judge should be implied or inferred, based on the first limb of the totality principle, from the sentencing outcome.

58 None of the grounds of appeal has a reasonable prospect of success. Leave to appeal should be refused and the appeal dismissed.