Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA

Criminal law - Application to extend time to appeal against sentence - Appellant convicted on his pleas of guilty - Child sex offences against four complainants - Counts in relation to two complainants were representative offences - Appellant the stepbrother of one complainant and the stepfather of three complainants - Total effective sentence of 11 years' imprisonment - No reasonable prospect of establishing an infringement of the totality principle - Extension of time to appeal refused

Criminal Code (WA), s 185 (repealed), s 320(2), s 320(4), s 552

Application for an extension of time to appeal dismissed

Bahar v The Queen [2011] WASCA 249; (2011) 255 FLR 80

BPR v The State of Western Australia [No 2] [2007] WASCA 200

Cameron v The Queen [2002] HCA 6; (2002) 209 CLR 339

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

GHS v The State of Western Australia [2006] WASCA 42

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

KMB v The State of Western Australia [2010] WASCA 212

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

MAS v The State of Western Australia [2012] WASCA 36

Moody v French [2008] WASCA 67; (2008) 36 WAR 393

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

PDS v The State of Western Australia [2006] WASCA 20

Porter v The Queen [2008] NSWCCA 145

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

R v Webb [1971] VicRp 16; [1971] VR 147

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

SWD v The State of Western Australia [2012] WASCA 76

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

The State of Western Australia v Prince [2011] WASCA 22

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

VIM v The State of Western Australia [2005] WASCA 233; (2005) 31 WAR 1

Woods v The Queen (1994) 14 WAR 341

1 BUSS JA: The appellant has applied to this court for an extension of time to appeal against an overall total effective sentence of 11 years' imprisonment imposed on him for numerous child sex offences.

2 The last date for appealing was 16 September 2011. The appellant did not file his appeal notice until 14 June 2012.

The offences and the sentencing disposition by Keen DCJ

3 On 26 August 2011, the appellant was convicted in the District Court, on his fast-track pleas of guilty, on 16 counts in an indictment.

4 Each of counts 1 - 5 alleged that, on a date unknown between 12 March 1987 and 1 January 1988, the appellant had unlawful carnal knowledge of his half-sister, F, a child under the age of 13 years. When these offences were committed the appellant was aged 14. F was 11.

5 Counts 6 - 16 alleged sexual offending, on various dates between 31 July 2008 and 9 April 2011, against three children of the appellant's then partner, G. The children (H, K and J) were girls.

6 Each of counts 6, 13, 14 and 16 alleged that the appellant sexually penetrated H by penetrating her vagina with his penis. Count 15 alleged that he sexually penetrated H by engaging in cunnilingus. When the offending against H occurred, she was aged between 10 and 12.

7 Each of counts 7 and 8 alleged that the appellant sexually penetrated K by inserting his finger into her vagina. Count 9 alleged that he indecently dealt with K by touching her breast. Count 12 alleged that he attempted to sexually penetrate K by attempting to penetrate her anus with his penis. When the offending against K occurred, she was aged between 10 and 11.

8 Each of counts 10 and 11 alleged that the appellant sexually penetrated J by inserting his finger into her vagina. When the offending against J occurred, she was aged between 7 and 8.

9 The appellant was aged between 35 and 38 when he committed the offences against H, K and J.

10 The sentencing judge, Keen DCJ, imposed individual sentences of immediate imprisonment, as follows:

11 His Honour ordered that each of the sentences for count 1 (1 year), count 6 (4 years), count 7 (3 years) and count 10 (3 years) be served cumulatively. His Honour also ordered that the sentences for the other counts be served concurrently with each other and concurrently with the total effective sentence for counts 1, 6, 7 and 10. The overall total effective sentence was therefore 11 years' imprisonment.

13 The sentencing judge backdated the overall total effective sentence to 9 April 2011, when the appellant was taken into custody for these offences.

The facts and circumstances of the offending against F

14 The facts and circumstances of the offending against F are as follows.

15 Each of counts 1 - 5 occurred in the family home. On each occasion, the appellant was in his bedroom with F and their sister. The appellant asked the sister to leave the room. She complied. The appellant shut the door and asked F to lie on the floor. She did so. The appellant removed F's underwear. He then lay on top of her and penetrated her vagina with his penis.

The facts and circumstances of the offending against H

16 The facts and circumstances of the offending against H are as follows.

17 At all material times the appellant was living with G and her children.

18 H disclosed to the appellant that she had been the victim of sexual abuse by her previous stepfather. The appellant told H that he could assist her in overcoming her grief by having sex with her.

19 As to count 6, shortly after this conversation, the appellant and H were in his bedroom. He asked H to have sex with him. The appellant and H removed their clothing. The appellant then penetrated H's vagina with his penis.

20 As to count 13, the appellant was at home with H. G was at work. The appellant asked H to come into his bedroom to look after her baby brother. She did so. After H had put the baby to bed, the appellant asked her to have sex with him. They removed their clothes. The appellant then penetrated H's vagina with his penis.

21 As to count 14, once again the appellant was at home with H, and G was at work. The appellant penetrated H's vagina with his penis in circumstances similar to count 13.

22 As to count 15, the appellant performed cunnilingus on H immediately after he had committed count 14.

23 As to count 16, the appellant again penetrated H's vagina with his penis immediately after committing count 15. He stopped penetrating H when he ejaculated.

24 Counts 6, 13, 14, 15 and 16 were representative offences. The appellant regularly had sexual interaction with H between August 2008 and April 2011. This interaction included penetrating H's vagina with his penis and his fingers, and using G's vibrator on H and instructing her in its use.

The facts and circumstances of the offending against K

25 The facts and circumstances of the offending against K are as follows.

26 As to count 7, K was in her bedroom assembling her bed. The appellant approached her from behind and placed one of his hands down the front of her jeans and his other hand down the back of her jeans. The appellant then penetrated K's vagina with his finger.

27 As to count 8, the appellant was tucking K into bed. He asked her whether she wanted 'tickle time'. The appellant reached under her bed covers and placed one of his hands into K's pants. He penetrated her vagina with his finger.

28 As to count 9, the appellant approached K while she was in the bathroom. She was about to have a shower and was naked. The appellant squeezed her breast.

29 As to count 12, K was in her bedroom. The appellant approached her from behind and pulled down her pants. He then pulled down his own pants and pushed his penis between K's buttocks and against her anus, attempting to penetrate her anus with his penis.

30 Counts 7, 8, 9 and 12 were representative offences. The appellant regularly had sexual interaction with K between May 2010 and April 2011.

The facts and circumstances of the offending against J

31 The facts and circumstances of the offending against J are as follows.

32 As to counts 10 and 11, on each occasion the appellant was tucking J into bed. He asked her whether she wanted 'tickle time'. The appellant reached under her bed covers and placed one of his hands into J's pants. He penetrated her vagina with his finger.

33 Between May 2010 and April 2011, when counts 10 and 11 occurred, the appellant digitally penetrated J's vagina on at least two separate occasions.

The psychiatric report, the psychological report and the pre-sentence report

34 The information before the sentencing judge included a psychiatric report dated 15 August 2011 from Dr Mark Hall, a consultant psychiatrist, a psychological report dated 14 August 2011 from Mr David Summerton, a psychologist, and a pre-sentence report.

(a) The appellant does not suffer from a serious or treatable mental illness.

(b) He satisfies the diagnostic criteria for paedophilia. He is a compulsive collector of pornography. His collection includes child pornography.

(c) The appellant's background includes a family history of depression and suicide, aggression and violence, and alleged sexual offending.

(d) As a child, his delinquent behaviours included truancy, cruelty to animals, the lighting of fires and running away from home.

(e) As an adult, the appellant exhibits an inability to form deep attachments to others and demonstrates a profound lack of empathy. He is grandiose and has a need for admiration. The appellant has a history of recklessness and sensation seeking, aggressiveness and impulsivity. He has participated in violence, theft, computer crime and sexual offending. This behaviour indicates a pervasive disregard for and violation of the rights of others. His underlying aggression and hostility extends to violent fantasies.

(f) He has significant personality dysfunction with narcissistic, anti-social and borderline traits.

(g) The appellant's difficulties are compounded by a significant history of poly-substance abuse including alcohol abuse.

36 Dr Hall recorded in his report the appellant's account of the offending in question:

[The appellant] said that he had offended against the first victim [H] because 'I wanted to make her happy. I just tried to help'. He said 'at no point did she ever say she was not happy'. [The appellant] said that he had at one stage desisted from his sexual contact with the victim for a period of a couple of months because 'I did not want to do it because I knew it was wrong'. [The appellant] claimed, however, that during that time the victim had been depressed and upset and that she would make comments such as that she wished things were like the way they were before. He said 'after a couple of months I gave in'.

[The appellant] described the sexual contact as 'fun'. He said 'I enjoyed making her happy'. He said, however, that at the same time he was ambivalent about his behaviour because he knew it was wrong. He said that he would use alcohol to alleviate his ambivalence and thereby allowing [sic] him to engage in the behaviour. He said that on such occasions he would usually have somewhere between one to a few cans of premix alcohol. On specific enquiry, he also stated that he had been sober on a number of occasions of offending. (original emphasis)

37 Dr Hall expressed the view that the appellant's risk of reoffending sexually, without intervention and treatment, was 'at least moderate'.

38 The sentencing judge, in his sentencing remarks, made unchallenged findings of fact, as follows:

(a) Each of H, K and J liked the appellant and trusted him (ts 3).

(b) The offending did not occur when the appellant was under the influence of alcohol or drugs, although he may from time to time have consumed some alcohol (ts 3).

(c) At the material time the appellant was grooming H, K and J for future sexual encounters (ts 3).

(d) The appellant's offending against H, K and J would have continued if his criminal behaviour had not been discovered by G (ts 4).

(e) The appellant's culpability was not diminished by any psychiatric or psychological disturbances (ts 7).

(f) The appellant had some previous convictions but these were only for traffic offences. He was therefore to be treated as a first offender (ts 8).

(g) The appellant had no victim empathy and no remorse, except to the extent that a 'small degree of remorse' may be associated with his fast-track pleas of guilty (ts 13).

39 His Honour made these observations about the impact on H, K and J of the offending against them:

[G] in her victim impact statement speaks of the period that she had known you and that how [sic] she had loved and trusted you. She speaks of the children missing school after these events and everything being chaotic, and they are still having to attend counselling.

They are emotionally vulnerable and break down crying at the smallest things. The girls are also scared about their future. She describes the whole family as totally confused about the future and unsettled. It's come to the point where they've decided to leave town and go elsewhere.

...

Finally, [G] has struggled to cope with the whole situation and that is not surprising. The children say they are glad their mother found out what was happening so that it could be stopped. They speak of going to counselling and [J] speaks of having nightmares. They all speak of being scared of what would happen when their mother found out.

[H] speaks in terms of not being able to sleep properly and is worried about the future when you're released. She's happy at times and then gets angry about anything and feels sad (ts 10 - 11).

40 The sentencing judge then noted the impact on F of the offending against her:

It's caused a lot of emotional distress for herself, and even though she's been married for a number of years, she's found it difficult to be the wife she's supposed to be.

She describes feelings of worthlessness and being 'a slut', as she describes it, and especially because she didn't get to decide when to lose her virginity.

She also talks about the emotional trauma and going through post-traumatic stress disorder and taking anti-depressants. It affects her ability as a mother of her own children. She doesn't trust men or boys; she's extra-cautious about the children being around them (ts 11 - 12).

41 The proposed ground of appeal alleges, in substance, that the overall total effective sentence of 11 years' imprisonment infringed the first limb of the totality principle 'in light of the appellant's fast-track guilty pleas'.

42 The appellant does not challenge the length of any of the individual sentences of imprisonment.

The merits of the proposed ground of appeal

43 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, 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).

44 At the material time, the maximum penalty for each of counts 1 - 5, being unlawful carnal knowledge of a girl under the age of 13 years, contrary to s 185 (repealed) of the Criminal Code (WA) (the Code), was, relevantly, 20 years' imprisonment.

45 The maximum penalty for each of counts 6 - 8, 10 - 11 and 13 - 16, being sexual penetration of a child under the age of 13 years, contrary to s 320(2) of the Code, is 20 years' imprisonment.

46 The maximum penalty for count 9, being indecent dealing with a child under the age of 13 years, contrary to s 320(4) of the Code, is 10 years' imprisonment.

47 The maximum penalty for count 12, being attempted sexual penetration of a child under the age of 13 years, contrary to s 320(2) read with s 552 of the Code, is 10 years' imprisonment.

48 The primary sentencing considerations for offences of the kind in question are punishment of the offender and specific 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).

49 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).

50 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).

51 By s 6(2)(b) of the Sentencing Act 1995 (WA), the seriousness of an offence must be determined by taking into account, amongst other things, the circumstances of the commission of the offence, including 'the vulnerability of any victim of the offence'.

52 At common law, a sentencing judge may take into account, in determining sentence, any detrimental, prejudicial or deleterious effect that may have been produced on the victim by the commission of the offence. See R v Webb [1971] VicRp 16; [1971] VR 147, 151 (Winneke CJ, Pape & Lush JJ); Porter v The Queen [2008] NSWCCA 145 [54] (Johnson J, Bell JA & McCallum J agreeing). See also, in relation to victim impact statements, s 24 to s 26 of the Sentencing Act.

53 By s 8(2) of the Sentencing Act, a plea of guilty by an offender is a mitigating factor and the earlier in proceedings that it is made, or indication is given that it will be made, the greater the mitigation.

54 It is well-established that, in all but the most exceptional cases, a plea of guilty will result in a reduction of the sentence that would otherwise have been imposed. See Moody v French [2008] WASCA 67; (2008) 36 WAR 393 [35] (Steytler P, Wheeler, McLure & Buss JJA).

55 Ordinarily, in Western Australia, fast-track pleas of guilty attract a reduction in sentence of somewhere between 20% and 35%, depending on the circumstances. In a particular case, the reduction might be less where, for example, there is an absence of any real remorse. The sentencing judge has a discretion as to the weight to be given to a plea of guilty. However, other than in an exceptional case, some discount on sentence should be given even where the plea of guilty is unavoidable and unaccompanied by any real remorse or acceptance of responsibility because, even in these circumstances, the plea still indicates a willingness to facilitate the course of justice. See Moody [37] - [38].

56 In Cameron v The Queen [2002] HCA 6; (2002) 209 CLR 339, Gaudron, Gummow and Callinan JJ explained the rationale for the rule that a plea of guilty may be taken into account in mitigation:

[T]he issue is to what extent the plea is indicative of remorse, acceptance of responsibility and willingness to facilitate the course of justice [22].

57 In Bahar v The Queen [2011] WASCA 249; (2011) 255 FLR 80, McLure P (Martin CJ & Mazza J agreeing) referred to Cameron and then said:

The practical consequence of the fact that a plea of guilty is mitigatory is that, all other sentencing considerations being equal (which they usually never are), an offender who pleads guilty will ordinarily receive a lesser sentence than a co-offender who pleads not guilty. However, as explained by the High Court in Cameron, it is not the mere plea of guilty that produces that outcome but rather the fact that the plea supports an inference of remorse, acceptance of responsibility and a willingness to facilitate the course of justice [41]. (emphasis added)

58 I have considered a number of prior sentencing cases involving serious sexual offending against children. These cases have at least some features comparable to the appellant's offending. See VIM v The State of Western Australia [2005] WASCA 233; (2005) 31 WAR 1; PDS v The State of Western Australia [2006] WASCA 20; GHS v The State of Western Australia [2006] WASCA 42; Truscott v The State of Western Australia [2007] WASCA 62; BPR v The State of Western Australia [No 2] [2007] WASCA 200; MPD v The State of Western Australia [2008] WASCA 57; KC v The State of Western Australia [2008] WASCA 216; KMB v The State of Western Australia [2010] WASCA 212; The State of Western Australia v Prince [2011] WASCA 22; RDC v The State of Western Australia [2012] WASCA 16; MAS v The State of Western Australia [2012] WASCA 36; CJF v The State of Western Australia [2012] WASCA 69; and SWD v The State of Western Australia [2012] WASCA 76. It is unnecessary to reproduce the relevant facts and circumstances of these cases or the relevant sentencing dispositions.

59 The appellant's offending against F was very serious. On each of five separate occasions the appellant penetrated F's vagina with his penis. F was his half-sister. He was aged 14 and she was 11. It is apparent, from F's victim impact statement, that the offending has caused her substantial and long term emotional distress. It has adversely affected her relationship with her husband and her children.

60 Plainly, the appellant's criminal conduct in relation to H, K and J was dreadful. The offending occurred over a period of about four years. The appellant was their stepfather. Each of H, K and J was aged between 7 and 11 when the offending commenced. The appellant was a man of mature years when he offended against them. The nature of the offending behaviour was very serious. It included penile/vaginal penetration of H and attempted penile/anal penetration of K. The appellant was grooming H, K and J for future sexual encounters. He put his own sexual gratification ahead of all other considerations. His offending was persistent. There was a degree of moral corruption of each of H, K and J. The sexual abuse deprived them of a normal childhood. They have suffered significant and ongoing negative consequences as a result of the offending.

61 The counts in the indictment in relation to H and K were representative offences. Although the appellant is only to be sentenced and punished for the counts in the indictment, the fact that a number of those counts were representative of an ongoing course of conduct against H and K shows that those offences were not isolated incidents. He is not entitled to any mitigation on the basis that his moral culpability for the counts in the indictment was diminished because his behaviour on those occasions was uncharacteristic or an aberration.

62 The only mitigating factors in relation to H, K and J were the appellant's fast-track pleas of guilty and the absence of any relevant prior convictions. The only additional mitigating factor in relation to F was the appellant's youth when he committed the offences. The appellant's pleas facilitated the course of justice.

63 It was submitted, on behalf of the appellant, that, in the present case, several aggravating factors sometimes encountered in child sex cases were absent. Counsel said that the offending does not appear to have caused physical pain, no threats were made, and there was no forceful physical behaviour. However, the absence of these aggravating factors, and the fact that the offending could conceivably have been worse, does not diminish the gravity of what actually occurred.

64 The appellant's personal circumstances are disturbing. He has a profound lack of empathy, underlying aggression and hostility, and significant personality dysfunction (but no serious or treatable mental

illness). He satisfies the diagnostic criteria for paedophilia and views child pornography. His underlying aggression and hostility includes violent fantasies. The appellant has no remorse and has not accepted responsibility for his offending, except to the extent that a small degree of remorse may be associated with his fast-track pleas of guilty. He has no victim empathy. His prospect of reoffending is not insubstantial.

65 In my opinion, the overall total effective sentence of 11 years' imprisonment (with eligibility for parole) does not infringe the first limb of the totality principle. The term of 11 years was necessary to give effect to the dominant sentencing considerations of punishment, personal and general deterrence and the protection of vulnerable children. An accumulation of some of the individual sentences was required in order adequately to mark the gravity of the appellant's offending; in particular, his having committed multiple offences against four complainants over a significant interval of time in the circumstances and with the moral culpability that I have described. The overall total effective sentence bears a proper relationship to the criminality involved in all of the offences against all of the complainants, viewed together, and having regard to all relevant facts and circumstances and all relevant sentencing considerations, including the seriousness of the offending, the pattern of sentencing in reasonably comparable cases, the fast-track pleas of guilty, the absence of any relevant prior convictions and his youth when he offended against F.

66 It is not reasonably arguable that the existence of error on the part of the sentencing judge should be inferred from the sentencing outcome.

68 An extension of time to appeal should be refused because the proposed ground of appeal does not have a reasonable prospect of success.