Court of Appeal (WA)|2014-05-05|Before: Lure P, Pullin JA, Mazza JA

PES -v- THE STATE OF WESTERN AUSTRALIA [2014] WASCA 96 (5 May 2014)

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

CITATION : PES -v- THE STATE OF WESTERN AUSTRALIA [2014] WASCA 96

Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA

Criminal law - Appeal against sentence - Multiple offences against four children - Manifest excess - Totality - Approach to, and adequacy of, findings of fact for sentencing purposes

Criminal Code (WA), s 317(1), s 329(2), s 329(4), s 338B

Barbaro v The Queen [2014] HCA 2

Cheung v The Queen [2001] HCA 67; (2001) 209 CLR 1

Green v The State of Western Australia [2014] WASCA 53

Nudd v The Queen [2006] HCA 9

PES v The State of Western Australia [2013] WASCA 202

1 McLURE P: This is an appeal against sentence. The appellant was convicted after trial of 21 offences committed against four complainants, his de facto child, TH, and his biological children AE, KE and SE. The offending comprised:

- three counts of sexual penetration of TH (counts 1- 3);

- three counts of assault occasioning bodily harm of TH (counts 4 - 6);

- two counts of indecent dealing with AE (counts 12 and 13);

- seven counts of aggravated assault occasioning bodily harm of AE (counts 8, 9, 10, 11, 14, 15 and 16);

- one count of aggravated assault occasioning bodily harm of KE (count 19);

- four counts of engaging in conduct knowing or reckless that it may result in harm (one count for each of TH, AE, KE and SE) contrary to s 101(1) of the Children and Community Services Act 2004 (WA) (the CCS Act) (counts 7, 18, 20 and 21).

2 TH was born on 19 May 1993 and was aged 19 at the time of trial. AE was born on 30 November 1998 and was aged 14 at the time of trial. KE was born on 29 December 1999 and was aged 13 at the time of trial. SE was born on 9 July 2003 and was aged 9 at the time of trial. Most of the evidence-in-chief of AE, KE and SE was in the form of video-recorded police interviews.

3 The appellant claims that the sentence imposed for the sexual penetration the subject of count 1 is manifestly excessive and that the total effective sentence infringes the first limb of the totality principle. The sentencing judge, Curthoys DCJ (as he then was), imposed a sentence of 6 years' imprisonment for the sexual penetration the subject of count 1 and a total effective sentence of 14 years' imprisonment.

4 The details of the counts as pleaded in the indictment, the individual sentences and the orders for cumulation and concurrence are as follows:

Sexual penetration of a de facto child under 16 years, TH

Indecent dealing with a lineal relative under 16, AE

5 As to counts 6 and 12, the sentencing judge announced sentence twice for count 12 (2 years cumulative on counts 1 and 2 at ts 592 and 5 months concurrent with count 1 at ts 593) and did not sentence on count 6. It can be inferred that the second sentence on count 12, 5 months concurrent, was the intended sentence on count 6. Thus the sentences on counts 1, 2 and 12 are to be served cumulatively, producing a total effective sentence of 14 years' imprisonment.

6 The appellant appealed against his conviction on the sole ground that the trial judge erred in law in his direction to the jury on the meaning of the term 'reckless' in s 101(1)(b) of the CCS Act. That appeal was dismissed: PES v The State of Western Australia [2013] WASCA 202. There was no challenge to the s 101 convictions on the basis of duplicity or unfairness, as to which see Green v The State of Western Australia [2014] WASCA 53 [14] - [25].

7 It appears from the trial judge's summing up that the family resided in Wongan Hills (from December 1998 to December 1999), then White Gum Valley (from December 1999), then Marvel Loch, then Kalgoorlie (2002 - 2004), then Port Kennedy (2005), then Safety Bay (from 2005), then Falcon (from April 2007) and then, finally, Dudley Park.

8 It was accepted by the parties at trial and in the appeal that only conduct after the commencement of the CCS Act (1 March 2006) could be relied on to establish the s 101 offences. It was also accepted that the family was living in Falcon and Dudley Park after the commencement of the CCS Act. I will deal with the s 101 offences (7, 18, 20 and 21) together after dealing with all of the Code counts.

9 Against that background I turn to the facts relied on by the sentencing judge. Count 1 occurred at White Gum Valley when TH was aged 6. TH went to work with the appellant. At lunch time they sat on a bench. The appellant said he wanted to reward TH for being a good girl. He then put his fingers down the front of her pants and put his fingers inside her vagina. She could feel his fingers moving inside and it was very uncomfortable and painful. The appellant did this for what seemed like ages but was probably only about 5 minutes. It caused TH pain and left her very sore.

10 Counts 2 and 3 are part of the same incident and occurred at White Gum Valley when TH was about 7. TH was stung by a bee when she was weeding. She tried to attract the appellant's attention but had to wait outside for about an hour before the appellant let her in. He was angry because she had disrupted the football game he was watching. To punish her, the appellant took TH into his bedroom and made her take off her clothes. He took out a tube of cream from a bedroom drawer and put some on his fingers and on her vagina and then put his fingers into her vagina. The penetration was prolonged. The appellant then placed the end of the tube of cream into her vagina. That penetration caused TH to bleed quite a lot.

11 From the time they lived in Wongan Hills, the appellant rubbed TH all over with his hands, initially on the outside of her pyjamas and later progressed to inside her pyjamas. This evidence of TH was adduced in examination-in-chief (ts 100 - 101, 107 - 108). After referring to the touching under the pyjamas, the sentencing judge said 'TH's evidence was that the [appellant] touched her in this way until she left home at 16. These touchings involved sexual penetration of her vagina by his fingers. These happened very few times in the sheds, in the caravan ... in her room and in the shower' (ts 574). TH regularly showered with the appellant and she would wash his 'private parts' and he would wash her 'private parts' (also adduced in examination-in-chief; ts 151 - 152). All of this conduct was treated by the sentencing judge as uncharged sexual offending.

12 Count 4 occurred when TH was attending Marvel Loch Primary School in year 3 or 4. She was walking home from school and got tar on the soles of her shoes which she walked through the house. The appellant hit TH 'repeatedly with an open hand all night. She was hit all over the body all through the house for hours, most of the night. She had bruises and she was a bit sore, but there were no major injuries ... or sustained physical damage' (ts 575 - 576).

13 Count 5 is pleaded as having occurred in 2002. In both summing up and in sentencing, the judge addressed count 5 after count 8 because the evidence was that the offence was committed in Falcon. The family did not move to Falcon until April 2007. TH's evidence relied on by the sentencing judge in relation to count 5 was in fact part of the broader factual context for the s 101 offence rather than the specific assault charge. To make this point it is necessary to set out the trial judge's summing up in relation to count 5:

The next offence that I'll deal with and this is said to have taken place in Cobblers Road in Falcon. This is count 5 ... and that involves the stick welder and [TH's] evidence is that [the appellant] used stick welders and would put the hot welders on [TH's] skin to burn her. She remembers one particular occasion when they were working on a rack for the shed. [The appellant] held the stick welder to her finger on her right hand for a few seconds, although she said it felt like ages. She pulled her hand back and cried out in pain. She had a circle burn on her finger and couldn't move her arm for some time.

...

She was asked when in the shed, did [the appellant] ever physically discipline you and how did he do that? 'He would hit me, he would burn me, he would do other things'. And she gave evidence of putting a stick welder on his [sic] fingers that caused burns and you couldn't really use your arm or whatever afterwards. That she was living at Cobblers Road in Falcon and she was asked what the burns looked like. 'It was just a small round burn, smaller than a five cent piece'.

And again, and she also said that what happened to your arm after she'd been burnt, 'It would lose muscle and movement and control', because there was electricity going through the sticks. So how would you feel afterwards, 'Jelly pretty much'. And how long did that feeling last? 'A couple days' (ts 528).

14 The evidence relied on for sentencing purposes substantially repeats the last two paragraphs rather than the specific occasion described in the first paragraph. In evidence-in-chief on this subject (ts 128 - 129) TH was asked a general question about whether the appellant ever physically disciplined her (I infer for the purposes of count 7) and it appears from her general answers that the conduct the subject of count 5 was said not to be an isolated incident.

15 As to count 6, TH was breaking aluminium door frames on the appellant's instructions. She could not break a piece. The appellant got angry, said it was not that hard and stabbed a piece of aluminium into her torso. It was meant to break to show her how easily it snaps, but it did not snap. It went into her body and hurt. She has a scar from the cut.

16 The sentencing judge concluded that the counts of assault occasioning bodily harm to TH were representative, saying that TH 'gave evidence that [the appellant] physically disciplined her by hitting and burning her with a stick welder' (ts 577).

17 Counts 8 to 18 relate to AE. Count 8 occurred in Kalgoorlie when AE was aged about 4. The appellant got a little slicing knife, grabbed AE's leg really hard and put the tip of the knife about a centimetre into his skin above the kneecap for about 3 seconds and then pulled it out, slicing the skin. The appellant said that if AE told anyone he would slice his knee even further.

18 Count 9 occurred at Falcon when AE was about 9 or 10. The appellant and AE were working together making a rack. AE had gone to get some aluminium and the appellant threw a piece of heavy steel from a distance of 10 to 20 m which hit AE's back. AE described it as feeling like fire when it hit and that it caused him to bleed.

19 Count 10 also occurred at Falcon. The appellant had a strip of metal 1 or 2 m long which the appellant used to 'whack AE across the back'. AE described it as hurting like fire, there was a bit of blood and the skin was peeled and bruised for a couple of days afterwards.

20 Count 11 also occurred at Falcon when AE was around 10 years old. He was in the shed with the appellant and they were making a cupboard. The appellant saw a sledgehammer that AE had not put away the day before. The sledgehammer was about 50 cm long and weighed about 5 kg. The appellant threw the sledgehammer at AE from about 5 m away. It hit AE's right kneecap and displaced it. The appellant put the kneecap back in place. Even now the kneecap can be displaced when AE plays sport.

21 Count 12 occurred at Dudley Park when AE was in year 5. The appellant came into the bathroom when AE was having a shower. The appellant got into the shower and yanked or pulled AE's penis, causing great pain and swelling. AE tried to push the appellant away. The appellant then threatened and choked AE with his back scrubbing brush until AE elbowed him. The facts of count 13 are essentially the same as the facts for count 12. Further, the appellant committed the same conduct 'twice, three times a week'.

22 Count 14 occurred at Dudley Park when AE was 11. The appellant got angry while he and AE were using oxyacetylene in the shed. The appellant told AE to put metal in water to make it cool down. AE kept picking up pieces of metal and the appellant would whack them out of his hand. The appellant grabbed a hammer with a round nose and hit AE really hard around the arm and elbow. AE had a bruise on his elbow for a couple of weeks.

23 Count 15 occurred at Dudley Park when AE was aged 11. The appellant threw a really small hammer from 10 to 15 m away and hit AE on the arm causing a bruise which lasted for about two weeks.

24 Count 16 occurred at Dudley Park in early 2010. AE was playing with KE and SE. SE was spraying plants with water from a spray bottle. The appellant saw her and yelled at the children's mother for not putting a lock on the cupboard. He then went and got a plank of wood and hit the children (except SE) with it. The plank was '20 to 160 cm long', made of pine and had splinters coming out of it. The appellant hit AE on the back, bottom, legs and feet repeatedly 'a thousand to a hundred times'. The appellant also punched AE in the neck, causing bruises.

25 Count 17 occurred around Christmas 2009 at Falcon. AE was washing his plate after breakfast when the appellant came in with a gun. The appellant held AE over his knee and held a gun to AE's neck. He pulled out one of the bullets and showed AE it was real. The appellant said 'you tell anyone about this and I'll kill everyone in this family'. Subsequently the appellant went into the bedroom where the children's mother was sleeping and held the gun to her head and said to AE 'She'll be the first one to go as well'.

26 Count 19 relates to KE. In 2009, SE was crying and the appellant kept smacking KE. Every time SE cried, the appellant would hit KE. The appellant used his hand and smacked KE on the buttocks 'between 10 and 30 times', resulting in bruising.

27 The sentencing judge dealt with the s 101 offences (counts 7, 18, 20 and 21) together. He said:

The conduct referred to with respect to these charges includes forcing the children to undertake difficult, physical work and manual labour causing the children to wake at very early hours to undertake this work, depriving them of opportunities to participate in normal, everyday activities for children their age and circumstances using excessive physical discipline including throwing tools, such as hammers, at the children, excessive smacking and pulling them hard by the arm or ear, causing the children to witness and, at times, participate in the physical abuse of their siblings.

Threatening the children, withholding food and not allowing participation in family life in the case of [TH] and failing to obtain proper medical attention for the children in the event of more serious injuries, notably with respect to [AE] and in relation to the physical and learning disabilities in the case of [KE].

In addition, he belittled, degraded and humiliated the children by calling them offensive names and telling them that they were stupid. He caused the children to become distrustful of each other, thereby damaging the relationship between the siblings, [particularly] with respect to [TH] and [AE]. Indeed he created an environment in the houses in which they lived in which the children lived in fear.

In the case of [TH], as I've said, food was withheld, she was refused participation in family life which included being excluded from family functions and outings, as well as being forced to live in a caravan in the backyard and not having access to the toilet and shower and having to ask at the back door before she could enter the house.

I reject the position put forward by the [appellant] that it was to assist [TH] in learning to live on her own. And again there was repeated sexual abuse until the age of 16 when she ran away from home for the last time.

The abuse is detailed at pages 107, 108 and 174 to 176 in the transcript (ts 580 - 581).

28 The abuse detailed at ts 107 relates to counts 2 and 3. The relevant evidence at ts 108 is as follows:

How old were you at this time when you had the bee sting?---I was about seven or so.

So how long did that type of thing continue for? Well, I'll withdraw that. When did this type of thing stop?---When I was about 16.

29 The evidence at ts 174 to 176 is that of TH in cross-examination in relation to counts 2 and 3 and uncharged sexual acts:

All right, I'll ask you again, did anything other than the three incidents we've just discussed, did anything of a sexual nature happen between you and [the appellant]?---Yes, there were other incidences.

What were they?---Other sexual acts.

...

What sort of sexual acts?---Just the same as the other three incidents mostly.

Just the same as?---The other three incidences mostly.

What, putting his fingers in your vagina?---Yes.

How many times did that happen?---A few times.

How many times?---A very few times.

Very few times?---Yes.

Where did it happen?---In the sheds, in the caravan that I lived in for awhile, in my room, in the shower.

30 The sentencing judge continued in relation to the s 101 offences:

In the case of [AE], in addition to the specific counts particularised in the indictment, it is clear that there were multiple acts of sexual assault, but particularly in the shower and it is clear that [AE] suffered harm as a result of [the appellant] forcing him to participate in the physical abuse of [TH] ...

In relation to [KE], [the appellant] caused harm to [KE] by failing to obtain proper medical attention for [KE's] existing disability which had, on the evidence of his teacher, negative consequences for [KE's] development progress in school.

It went beyond simply preventing [KE] from having treatment, but when the teacher at the school sought to do something about it, he attended at school and effectively threatened her to prevent her taking it further.

[SE], in her interview of 14 October 2010, says that she was subjected to excessive physical discipline. The physical harm that resulted from this conduct included injuries not amounting to bodily harm and to harm beyond the counts specified in the indictment and the emotional and psychological abuse resulting from the children being subject to continued fear of [the appellant] as well as their experience of witnessing [the appellant] abusing their brothers and sisters must be significant (ts 580 - 582).

31 Although the sentencing judge later said that the evidence providing the factual basis for the s 101 charges excluded the conduct the subject of the other counts (ts 582), that is not consistent with his reference to charged acts in the quoted extract. However, there are other more fundamental problems.

32 The sentencing judge's statement of the facts of the s 101 offences contain many broad descriptive statements that are not anchored to specific details, times, frequency or the relevant complainant(s) said to be the victim of the conduct. It was necessary to examine the trial transcript (in particular the prosecution opening, the complainants' evidence, and the summing up) to identify the specifics of the offending. For reasons discussed in the next section, that search was fruitless.

33 Further, on my reading of the evidence, the generalisations in the reasons are not capable of applying to all the complainants. It is also not possible to identify: (1) the 'serious injuries' suffered by AE that required medical attention; (2) the nature, frequency or victim(s) of the threats; (3) whether the sibling distrust extended to KE and SE; (4) the sexual assaults of AE that did not take place in the shower (if any); (5) the specific conduct and harm the judge relied on in support of the s 101 offence against SE (who contrary to the suggestion in the reasons, was not the subject of a Code offence).

34 The sentencing judge's reasons relating to the s 101 offences fall well short of providing this court with the necessary facts as to the precise nature and extent of all of the appellant's conduct giving rise to each s 101 offence in order to rule on the challenge to the total effective sentence. As discussed below, that is attributable in part to the way the prosecution ran its case at trial. It is also associated with an error in the sentencing judge's fact-finding approach.

35 The approach of the sentencing judge to the fact-finding process is explained in his reasons as follows:

In the case of each finding of fact, unless I make the finding of fact beyond reasonable doubt, the jury conviction on each of the counts establishes that the jury accepted beyond reasonable doubt the evidence of the facts in support of each charge given by each of the children (572).

36 I understand the sentencing judge to mean that the verdicts established beyond reasonable doubt the evidence given by each complainant 'of the facts in support of each charge' and that the quoted expression covers all of the evidence relied on by the prosecution as probative of the offences with which the appellant was charged including (with one exception relating to a claim of rape) evidence of uncharged acts, sexual and otherwise. That that was the intended meaning is clear from the further statement that:

The factual basis for sentencing is [established in] the evidence at trial of the four complainants and their mother (572).

37 The sentencing judge's approach is not consistent with the fact-finding duties of a sentencing judge. Where the offender to be sentenced has been found guilty following a trial by jury, the judge who presided at trial must determine the facts relevant to the sentencing process: Cheung v The Queen [2001] HCA 67; (2001) 209 CLR 1 [5], [36]. Although the facts found by the sentencing judge must be consistent with the verdict of the jury, it is the sentencing judge who must find the facts rather than speculate about the facts that may or may not have been found by the jury: Cheung [9] - [11]. It is only the facts necessarily implicit in the verdict of guilty after trial (the core facts) that cannot be controverted in the sentencing process. The verdicts do not establish the non-core facts, which must be found by the sentencing judge. Where a non-core fact is aggravating, the judicial finding must be on the criminal standard of beyond reasonable doubt: R v Olbrich [1999] HCA 54; (1999) 199 CLR 270.

38 It can be accepted that the application of the fact-finding principles was not straightforward in relation to the s 101 offences because of the way the prosecution was permitted to run its case at trial. Each count relevantly stated that:

Between 28 February 2006 and 1 May 2010 at diverse places in Western Australia [the appellant], being a person having the care or control of a child, namely [the relevant complainant], engaged in conduct knowing that, or being reckless as to whether, such conduct may result in [the relevant complainant] suffering harm as a result of physical, emotional, sexual or psychological abuse or neglect.

(1) A person who has the care or control of a child and who engages in conduct -

(a) knowing that the conduct may result in the child suffering harm as a result of any one or more of the following -

(i) physical abuse; or

(ii) sexual abuse; or

(iii) emotional abuse; or

(iv) psychological abuse; or

(v) neglect as defined in section 28(1);

or

(b) reckless as to whether the conduct may have that result,

is guilty of a crime, and is liable to imprisonment for 10 years.

40 The expression 'engage in conduct' means to do an act or omit to do an act (s 101(2)). The term 'harm', in relation to a child, means any detrimental effect of a significant nature on the child's wellbeing (s 28(1)). The term 'neglect' includes failure by a child's parents to provide, arrange, or allow the provision of adequate care or effective medical, therapeutic or remedial treatment for the child (s 28(1)).

41 It is apparent that the appellant's legal advisers failed to obtain particulars of the specific conduct relied upon by the prosecution to establish the s 101 offences. That omission is particularly significant when regard is had to the prosecution opening which was in very general terms:

Now, the conduct referred to with respect to these charges includes amongst other things, forcing the children to undertake difficult physical and manual work, causing the children ... to wake at very early hours to undertake this work. And I mean about four, 4.30 in the morning. Depriving them of the opportunities to participate in normal everyday activities for children of their age and circumstances. Using excessive physical discipline including throwing tools such as hammers at the children, excessive smacking and pulling them hard by the arm or by the ear. Causing the children to witness [and] at times participate in the physical abuse of their siblings. And when I say participate in, you'll hear from [AE] that at times his father would make him hit [TH]. He describes at least one occasion where he had to get a piece of hose and hit [TH] with it.

[The appellant] also threatened the children. The other conduct includes failing to obtain proper medical attention for the children in the event of more serious injuries. You'll hear that despite what was going on and how many times these children were injured, often bleeding, that they weren't permitted to see a doctor. It was very rare for them to see a doctor. He also failed to obtain proper medical treatment where it was required for an existing disability.

And that's in the case of [KE] who he wouldn't let see a doctor even though he had this hearing problem because he has a deformed ear. And that's from birth. It's also withholding food and not allowing participation in family life. This is in the case of [TH] who's account of what occurred is particularly difficult to comprehend when she talks about not being allowed to eat meals with the family (ts 85 - 86). (emphasis added)

42 After referring to TH not being allowed to eat meals with the family, not having enough to eat, being locked in her room at night, having to live in a caravan, and being excluded from family activities the prosecutor continued:

The physical harm that resulted from this conduct included various injuries that you will hear described. While the emotional and psychological abuse resulted from the children being subjected to continued intimidation and fear, they were just always afraid of what was going to happen.

...

In the cases of [TH] and [AE] it is alleged that they also suffered direct sexual abuse (ts 87).

43 One working day before trial the prosecution disclosed to the appellant a new, very general claim made by TH that 'sexual things happened [to her] up until the time she left when she was 16 years old' (ts 49 - 50). Until that stage the allegations of sexual misconduct were confined to the matters in counts 1, 2 and 3. The prosecutor told the trial judge 'we will not be obtaining any further information from her ... in her evidence-in-chief' (ts 50). As detailed above, the prosecutor did do so and without objection on behalf of the appellant.

44 The first two paragraphs of the sentencing judge's findings in relation to the s 101 offences are almost identical to the prosecution opening. The trial judge's summing up on the s 101 offences followed the same general approach as the prosecution opening (ts 539 - 542). He concluded:

The State relies on a large number of events you've heard evidence about. I've drawn attention to the - some of the major incidents, but it is for you to determine whether there are other events or other acts by [the appellant] that would amount to physical abuse, sexual abuse, emotional abuse, or psychological abuse, or neglect.

45 Consistently with the prosecution approach at trial, the respondent in the appeal relies on alleged conduct of the appellant that is not expressly identified in opening or in the summing up or in the sentencing facts.

46 As a result of the way the prosecution conducted its s 101 cases it is impossible to identify the facts necessarily implicit in the jury verdicts of guilt on the s 101 offences. This conundrum cannot be avoided by the simple expedient of inferring that the jury accepted, beyond reasonable doubt, all of the prosecution evidence relevant to those offences, core and non-core. I have considered the evidence. There is no proper basis for such an inference. That is particularly so in a case such as this where the complainants were permitted to make broad, generalised statements about their treatment by the appellant from an early age.

47 Any unfairness to the appellant in the trial of the s 101 offences (not the subject of any claim in the unsuccessful conviction appeal) cannot be permitted to carry over to the sentencing process. The matter must be remitted to the sentencing judge for him to consider all of the relevant evidence and identify the specific facts of each s 101 offence that he finds to be proven beyond reasonable doubt. An issue that should be addressed by the parties in resentencing is whether broad generalisations of uncharged acts can, as a matter of law, provide the factual foundation for the s 101 offence verdicts.

48 There was nothing standing in the way of the proper exercise of the sentencing judge's fact-finding duties in relation to the Code offences. The uncharged sexual and other assaults prior to 1 March 2006 were irrelevant to the s 101 offences and were non-core facts in relation to the Code offences. Further, not all of the evidence of the complainants relating to the circumstances of the Code offending was confined to core facts. Consistent with his description of the approach he took to sentencing (quoted above), the sentencing judge erred in simply adopting the non-core evidence of the complainants relating to the Code offences. That this is what he did is confirmed by his recitation of the complainants' evidence even when it was obviously an estimate or best guess. It is also confirmed by his treatment of the uncharged sexual acts against TH. He conflated TH's unclear evidence as to the nature of the appellant's conduct ('rubbing') in Wongan Hills with her ambiguous evidence in cross-examination as to the frequency of uncharged acts of digital penetration (set out above). TH's evidence-in-chief on the topics was as follows:

[When] you were still living in Wongan Hills, was there a routine for when you went to bed at night at all? You'd get ready to bed presumably?---Yes.

...

Would anyone tuck you in at night?---[The appellant] would sometimes.

And what would happen when [the appellant] was tucking you in at night?---He would make sure I was safe by tucking me in good and rubbing me all over to make sure it was all good.

...

And when you say 'all over' what do you mean?---Everywhere.

Are you talking about your head, your face, body - - - ?---Everywhere---

- - - arms, legs?---face.

...

And you say he was making you safe. How do you know that he was making you safe?---He would tell me that he was making sure I was safe and tucked in ready for the night.

And you'd presumably be in some form of pyjamas or something like that?---Yeah.

And when he was making sure you were safe and rubbing all over you, was it over or under your pyjamas?---It started off over. It was under at the end.

And whereabouts would he touch you when his hands were under your pyjamas?---Everywhere (ts 100 - 101).

49 That was the Wongan Hills evidence. After adducing evidence on counts 1, 2 and 3 which took place in White Gum Valley the prosecutor ended with the following:

Did [the appellant] ever touch you in that type of way on any other

occasions?---Yes.

How long - well, I'll go back a bit. So he'd been tucking you in in Wongan Hills when you were about six, is that right?---That's correct.

How old were you at this time when you had the bee sting?---I was about seven or so.

So how long did that type of thing continue for? Well, I'll withdraw that. When did this type of thing stop?---When I was about 16 (ts 107 - 108).

50 The trial judge said he was not clear about the acts to which the prosecutor was referring. She clarified the matter with the witness as follows:

I'm talking about sexual types of acts. I don't want to get into the details of what those acts may have been. But in terms of sexual acts, whether they were touching, as you've described, or things being, you know, penetration of your vagina, did they stop when you were 16?---Yes (ts 108).

51 As the errors made by the sentencing judge go to the foundation of the fact-finding process, it is not possible for this court to rule on the grounds of appeal relied on by the appellant. However, it is appropriate to make some general comments. It may be inferred from the sentences under challenge (which are, to use a neutral term, high) and from the sentencing judge's reasons that the uncharged sexual acts both before and after the commencement of the CCS Act were taken into account in the sentencing on counts 1, 2, 3, 12 and 13 and some or all were also taken into account in the sentencing on counts 7 and 18. If so, that would result in impermissible double counting.

52 For these reasons, I would allow the appeal, set aside the sentences imposed by Curthoys DCJ (as he then was) and remit the matter back to him to find the facts in accordance with the law and to resentence the appellant. That course must be taken because the trial judge is the only judicial officer capable of making the findings of fact for sentencing purposes (unless the facts are agreed by the parties).

53 PULLIN JA: I would dismiss the appeal. Ground 1 must be dismissed because although the sentence was high when compared with sentences imposed in cases referred to by the appellant, that circumstance alone does not lead automatically to the appeal being allowed: see Barbaro v The Queen [2014] HCA 2 [26] - [28]. The appellant acknowledges that the sentences imposed in other cases is only one relevant factor in determining whether the sentence was manifestly excessive.

54 The appellant makes much of the fact that the sentence of 6 years' imprisonment imposed for count 1 was also imposed in relation to

counts 2 and 3, and that the circumstances of counts 2 and 3 were more serious. The appellant does not contend that the sentences in relation to counts 2 and 3 were manifestly excessive. Just because the sentence in relation to count 1 was the same as the more serious sentences in counts 2 and 3, does not mean that the sentence on count 1 is manifestly excessive. The fact is that the circumstances of count 1 were that the act of digital penetration was committed on a six-year-old child who regarded the appellant as her father, the appellant had isolated her, and this was against a background of escalating indecent behaviour towards the victim. The sentence was not manifestly excessive.

55 As to ground 2, the appellant does not allege any error concerning the fact finding by the sentencing judge. The appellant in written submissions was able to identify the relevant facts for sentencing purposes in relation to all offences.

56 If there had been a ground of appeal alleging the sentencing judge erred in law in failing to find the facts in relation to any of the charges, then it may have been necessary to scrutinise the whole of the record to determine whether there was any merit in such a ground. However, the appellant, who sat through the trial and then heard the sentencing remarks, well understood what facts related to each count and advanced no such ground. I adopt the statement of the facts set out in McLure P's reasons in relation to all of the counts except for counts 7, 18, 20 and 21.

57 The conduct complained about in relation to each of counts 7, 18, 20 and 21 did not involve conduct occurring on one specific occasion. The conduct was conduct occurring over the period of time specified in the charges. The conduct, as found by the sentencing judge, was summarised by the respondent in written submissions in the following terms:

His Honour also summarised the consequences of the 4 offences committed contrary to the Children and Community Services Act, finding that the conduct included:

8.1 Forcing the children to undertake difficult physical and manual labour; often being woken at very early hours to do so, thus depriving them of participating in the normal activities of children of their age. This refers to the work often done with metal and wood in the appellant's shed.

8.2 Forcing the children to participate in the disciplining of their siblings.

8.3 Excessive 'smacking' and pulling by the arm or ear.

8.4 In the case of TH, withholding food and forcing her withdrawal from family life by making her live in a caravan, with no access to a toilet or shower; excluding her from family functions and having to ask permission to enter the house. The sexual offending continued against her while the appellant forced her to live apart from her family.

8.5 Failing to obtain proper medical attention, or attention for KE's learning and physical disabilities, and preventing a teacher from attending to those disabilities.

8.6 Behaviour that belittled, degraded and humiliated the children including calling them offensive names and telling them they were stupid.

8.7 Causing the children to distrust each other, and to live in fear which amounted to significant emotional and psychological abuse.

58 The conduct the sentencing judge found to have occurred and referred to in 8.1, 8.2, 8.3, 8.6 and 8.7 related to all four complainants. The conduct referred to in 8.4 related specifically and additionally to TH, and the conduct referred to in 8.5 referred in particular to KE. The appellant's submissions show that the appellant accepted that the facts recited had been found by the sentencing judge. Criminal proceedings are adversarial in nature and counsel for a party has a wide discretion in deciding what issues to contest: Nudd v The Queen [2006] HCA 9 [9] (Gleeson CJ). There is no reason to reject the fact that the appellant, represented by experienced counsel, accepted that the facts relating to counts 7, 18, 20 and 21 had been sufficiently found by the sentencing judge. To do so would be to create an issue the parties did not wish to raise.

59 All of the conduct referred to was conduct which the appellant, by the jury's verdict, knew, or was reckless as to whether it may result in 'harm' as defined.

60 There is no tariff for offences of this kind. All that can be said is that this was an unusual and particularly gruesome case of sustained mistreatment of young children, which will doubtless have an irreparable effect upon them. It is not unfair to say that over a decade, the appellant had control over children who he tortured and severely mistreated. A total sentence of 14 years' imprisonment was entirely appropriate and reflects

the criminality involved in these offences. The total sentence was not in any respect excessive, and did not infringe either limb of the totality principle. As a result, ground 2 has no merit.

62 MAZZA JA: Subject to one matter, I agree with McLure P for the reasons that she gives that the appeal should be allowed, the sentences set aside and the matter remitted to the learned sentencing judge for him to find the facts of the offending in accordance with law and then to re-sentence the appellant.

63 I differ from McLure P in one respect. In [51] of her Honour's reasons and in the context of a possible inference of impermissible double counting, her Honour suggested that the sentences under challenge may be, 'to use a neutral term, "high"'. I would not, without proper findings of fact, join with her Honour in that possible characterisation.

Community Services Act 2004

Barbaro v The Queen

At a glance

Court

Decision date

Before

Catchwords

Source

Catchwords

Judgment (109 paragraphs)

PES -v- THE STATE OF WESTERN AUSTRALIA [2014] WASCA 96 (5 May 2014)

Parties

Legislation Cited (1)

Cases Cited (2)