Criminal law and procedure - Appeal by offender against sentence - Appellant aged 70 years at the time of sentence - Multiple sex offences against nephews over a 10-year period - Offending ceased 34 years before conviction and sentence - Whether sentencing judge made any express errors - Whether individual sentences manifestly excessive - Whether net effective head sentence infringed the totality principle

Sentencing Act 1995 (WA), s 10, s 89(4)

Bell v The Queen [2001] WASCA 40

Braham v The Queen (1994) 116 FLR 38

Gulyas v The State of Western Australia [2007] WASCA 263; (2007) 178 A Crim R 539

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

PAS v The State of Western Australia [2009] WASCA 210

R v Hunter (1984) 36 SASR 101

R v Iles [2009] VSCA 197

R v Leggett [2000] WASCA 327

R v Whyte [2004] VSCA 5; (2004) 7 VR 397

Regan v The State of Western Australia [2005] WASCA 240

Royer v The State of Western Australia [2009] WASCA 139

The State of Western Australia v Akizuki [2008] WASCA 267

The State of Western Australia v Johnson [2009] WASCA 224

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

2 BUSS JA: The appellant was convicted, on his pleas of guilty, of five counts of indecent dealing with a child under the age of 14 years and six counts of indecent assault.

3 The offences occurred between 1966 and 1976. The victims were the appellant's three nephews. The counts to which the appellant pleaded guilty are representative of a course of conduct. The offending occurred when the victims were aged between 9 - 16 years, 10 - 14 years and 13 - 16 years respectively. During the period of offending the appellant was aged between 27 and 37 years.

4 The appellant was charged in October 2007. On 13 March 2008, an indictment containing 24 counts was filed in the District Court. Between July 2008 and late February/early March 2009, representatives of the appellant and the State negotiated in relation to the counts. On 9 March 2009, the appellant pleaded guilty to 11 of the counts and verdicts of conviction were entered. On 17 June 2009, the appellant was sentenced by Sweeney DCJ. He was then aged 70 years.

5 The basic details of the counts, the victims, the sentences and the maximum penalties are as follows:

6 The sentencing judge ordered that the terms of imprisonment for counts 9, 12 and 18 be served cumulatively upon each other and upon the term of imprisonment for count 6. Her Honour ordered that the other terms of imprisonment be served concurrently with each other and with count 6. The net effective head sentence was therefore 5 years' imprisonment. A parole eligibility order was made. The net effective head sentence was ordered to commence on the date on which the appellant was taken into custody for the offences, namely 11 March 2009.

7 The appellant appeals against sentence. On 27 July 2009, Miller JA granted an extension of time within which to appeal. On 6 November 2009, Wheeler JA ordered, relevantly, that the application for leave to appeal be referred to the hearing of the appeal.

8 Count 3, which involved indecent dealing, occurred in late 1966 or early 1967. The appellant visited his brother's farm in rural Western Australia when the brother's son, A, was aged 9 years. The appellant was staying the night and sleeping on a fold out bed in the lounge room. He told A that he had something special for him and that A should visit him in the lounge room after everyone else had gone to bed. A came to see the appellant in the belief that he might be given some lollies. The appellant told A to get into bed with him. He masturbated A. The appellant then masturbated himself and ejaculated onto A's hand. He reassured A that something special had happened between them.

9 Count 6, which involved indecent dealing, occurred in late 1969 or early 1970 when A was aged 12 or 13 years. The appellant, his brother (A's father) and his brother's family were travelling in a motor vehicle. The appellant was driving and A was sitting next to him, with one of his brothers, in the front seat. A's parents were in the back seat. The appellant commented that it was getting cold and he placed a blanket over A and the other child. The appellant then placed his hand under the blanket and masturbated A, initially over A's clothing and then inside his trousers, directly on his penis.

10 A said in his witness statement that he was abused regularly by the appellant. He was unable, however, to distinguish each incident. When A attained the age of 16 years, he was well aware that the appellant's behaviour towards him was wrong. He decided he wanted nothing more to do with the appellant. The abuse ceased.

11 Count 9, which involved indecent dealing, occurred between about mid-1970 and about mid 1972. The offence involved J who was aged about 9 or 10 years. J was asleep in his bedroom with his younger brother, C, when the appellant entered the room, pulled back the bedding and lay on top of J. The appellant removed his (the appellant's) penis from his clothing and rubbed it against J's body until he ejaculated onto the bed. J said in his witness statement that this behaviour was a regular occurrence. He did not resist because in his experience resistance caused the appellant to become more persistent. The appellant never threatened J but he would buy him chocolates. Count 9 was not the first incident of sexual abuse by the appellant that J recalled.

12 Count 10, which involved indecent dealing, occurred in late 1971 or early 1972. The victim was J's brother, K, who was then aged 13 years. K had been fishing at his uncle's (the appellant's brother's) farm in rural Western Australia. The appellant then drove K to his home in another part of rural Western Australia. During the journey the appellant stopped the motor vehicle. He and K went to the toilet. When they returned to the vehicle the appellant placed his hand on K's penis on the outside of his clothes. K pushed the appellant's hand away twice, but the appellant persisted and then placed his hand inside K's pants, directly on his penis. He masturbated him for about 20 minutes. K did not become aroused because he was frightened. No words were spoken. When the appellant had finished he started the vehicle and completed the journey. Count 10 was not the first incident of sexual abuse by the appellant that K recalled.

13 Count 12 involved indecent assault and occurred when K was aged 14 years. In late 1972, the appellant took K on a camping trip to a farming property owned by family friends. They spent the night in an unoccupied farm house. After K had gone to bed and fallen asleep, he woke to find the appellant slipping his hand into his (K's) pyjama pants. The appellant masturbated K until he gained an erection. K then went outside to use the toilet. When he returned and got back into bed the appellant performed oral sex on him until he ejaculated. Count 12 encompasses both sexual acts.

14 Count 16 involved indecent assault and occurred in about mid-1973 when K was either 14 or 15 years of age. The appellant was driving him between his home in rural Western Australia and his uncle's (the appellant's brother's) farm. During the journey the appellant stopped the vehicle. He masturbated K until he gained an erection and then performed oral sex on him until he ejaculated. Count 16 encompasses both sexual acts. K said in his witness statement that this kind of behaviour occurred about six or seven times on journeys to his uncle's farm, but he had difficulty distinguishing between the separate incidents.

15 Count 18 involved indecent dealing and occurred between about mid-1973 and mid-1975 when J was 12 or 13years of age. He was asleep in his bed, covered by a blanket, at home. His younger brother, C, was also asleep in the room. His father (the appellant's brother) was asleep in an adjoining room. J woke to find the appellant with his head and hand under the blanket masturbating him. When J achieved an erection the appellant performed oral sex until he ejaculated. Count 18 encompasses both sexual acts.

16 Count 19, which involved indecent assault, occurred in late 1973 when K was 15 years of age and visiting his uncle's (the appellant's brother's) farm. The appellant and K were sleeping on fold out beds in the lounge room. The rest of the family were sleeping in their bedrooms. K woke to find the appellant with his hand on his (K's) crotch. The appellant then placed his hand inside K's pyjama pants and masturbated him until he attained an erection. The appellant then performed oral sex on K until he ejaculated.

17 Count 21, which involved indecent assault, occurred in the first half of 1974 when K was still aged 15 years. The appellant took K to a drive-in picture theatre in rural Western Australia. He masturbated K during the running of the movie and then performed oral sex on him until he ejaculated. Count 21 encompasses both sexual acts. In his witness statement, K described regular acts of sexual abuse by the appellant towards him. These acts occurred in K's home. He was unable to distinguish between the various occasions.

18 Count 23 was an indecent assault that occurred later in 1974 after K had turned 16. The appellant had collected K from a TAFE college and was driving him in a motor vehicle. The appellant stopped the vehicle and commenced fondling K's crotch. A little later, the appellant pulled down K's trousers, masturbated him to an erection and then performed oral sex until he ejaculated. This was the last act of sexual abuse involving K.

19 Count 24 involved an indecent assault which occurred between mid-1975 and mid-1976 when J was aged 14 years. The appellant was driving J in his motor vehicle. He stopped the vehicle, undid J's trousers and performed oral sex on him until he ejaculated.

20 The sentencing judge's remarks about the impact of the offending on the victims were not challenged before this court. Her Honour said:

These offences continued to occur at a time when these boys would have been starting to become aware of their own sexuality and at that time you exposed them to sexual acts of a homosexual nature with no regard for whether that was likely to be their natural sexual preference or not. You showed no concern for whether catapulting them into adult sexual behaviour of that sort might impact on their understanding of their own sexuality. [J] mentions that for a while he was confused about his sexuality and it's no wonder.

... The common thread in the statements of all three men is the fact that they did not seek help by way of counselling until much later in life and had really only discussed the matter with their wives ...

I have a victim impact statement from [A] which brings home the long-term damage such offending causes. He says he had a lot of anger as a child including anger at his parents because his attempts to disclose fell on deaf ears. He felt the sexual behaviour was his fault. As a teenager, he had difficulties forming relationships with girls and he still, all these years later, has difficulties in relationships.

He is worried that any friendship he shows towards men will be misconstrued and he is overly wary of showing affection towards his own children for the same reasons. He is over-protective as a parent and has suffered anxiety over whether his childhood will cause him to become an offender too. Fortunately, he has married a supportive and understanding woman in whom he has been able to confide but he knows his anxieties and his issues have damaged his marriage as well (ts 65 - 66).

The appellant's personal antecedents and the pre-sentence, psychological and psychiatric reports

21 The appellant is the youngest of five sons born to his parents. He claimed to have had a 'normal childhood' and a good relationship with his parents and siblings while growing up. His parents separated in 1958 but by this time he was not residing in the family home. Since the mid-1990s the appellant's relationship with his brothers has deteriorated as a result of their being informed about the appellant's offending against their sons. He no longer has contact with his brothers.

22 The appellant is single, has no dependents and has never been married or involved in an adult relationship. He has lived an isolated life with minimal social interactions.

23 The appellant left school at the age of 14 and was employed in a pharmacy for two years. He then worked as a mechanic and farmhand on a few properties for brief periods. In 1960 he commenced employment with the Post Master General's department. He was employed as a linesman and participated in the construction of telephone lines until he retired in 1999.

24 The appellant does not have a criminal record apart from the offences in question in this appeal.

25 The sentencing judge had before her a pre-sentence report dated 4 May 2009, a psychological report dated 6 May 2009 from Ms J Hasson, a forensic psychologist, a psychiatric report dated 8 June 2009 from Dr S Febbo, a consultant psychiatrist and a psychiatric report dated 19 May 2008 from Dr S Proud, a consultant psychiatrist. Her Honour also had before her some written references as to the appellant's character and some records from Heathcote Hospital.

26 The sentencing judge examined the reports in detail.

27 Each of the reports referred to the appellant's admission to Heathcote Hospital on two occasions for psychiatric treatment. The first was between 10 February and 5 April 1965 and the second was between 6 September and 21 September 1966. Dr Febbo reviewed the Heathcote Hospital notes relating to these admissions. Comment was made in the notes as to the presence of 'thought disorder and perceptual disturbances'. The diagnosis was of an 'acute schizophrenic episode'. There appeared to be, at times, an elevation in the appellant's mood and the comment was made that he was 'hypomanic'.

28 The sentencing judge preferred the conclusions of Dr Febbo and Ms Hasson to the effect that the appellant has schizoid personality traits, though not a diagnosed disorder, to Dr Proud's conclusion that the appellant is 'odd' and therefore may have a mild thought disorder.

29 Her Honour's preference for the conclusions of Dr Febbo and Ms Hasson was not challenged before this court.

30 Dr Febbo summarised his views, relevantly, as follows:

From the psychiatric perspective, both [the appellant's] own history, and my review of the documentation is in keeping with the presence of a severe deterioration in [the appellant's] mental state in the mid-1960's, requiring admission to Heathcote Hospital in early February 1965 for around two months and in early September 1966 for just over two weeks. He required electroconvulsive therapy. The documentation is in keeping with the presence of significant psychotic and mood symptoms. He attracted a diagnosis of 'acute schizophrenic episodes'.

[The appellant] denied experiencing any psychiatric symptoms after his second admission to Heathcote Hospital. On specific enquiry he denied having experienced either any psychotic symptoms or any mood symptoms after this admission. He was able to work and, in fact, demonstrated considerable stability in relation to occupational functioning.

In my view [the appellant] demonstrates significant personality pathology and there are a number of traits falling within the category of schizoid personality disorder. In other words, to some degree, [the appellant] appears to demonstrate a pervasive pattern of detachment from social relationships and a restricted range of expression of emotions in interpersonal settings. There appears to be limited desire to experience or to enjoy close relationships. He frequently chooses solitary activities. There has been little, if any, interest in having sexual experiences with another person following the abuse and he described an indifference to either praise or criticism of others. In my opinion it is likely that this personality structure contributed to the offending behaviour.

In relation to your specific enquiry, it is not my view that there is a 'causative link between his two psychiatric episodes in 1965 and 1966 and his offending behaviour'. It is my understanding that the sexual offences began in the late 1960s, a time when [the appellant] was functioning well at work and he did not give a history of any psychiatric symptoms at the time. I note that my opinion concurs with that of Dr Proud (psychiatrist) as expressed in his reported [sic] dated 19 May 2008.

In summary, and using a DSM-IV diagnostic framework, I was unable to identify the presence of an Axis One (clinical disorders) condition. On Axis Two (personality disorders and mental retardation) I note the presence of significant personality pathology with the presence of schizoid personality traits. On Axis Three (or physical conditions) I was unable to identify the presence of a significant physical illness. On Axis Four (psychosocial and environmental problems) I note the presence of relative isolation. On Axis Five (Global Assessment of Functioning) [the appellant] would currently attract a GAF scale score of 90 with 'absent minimal symptoms'.

In my view, from the psychiatric perspective, there is no indication for specific psychiatric treatment. It is my opinion that [the appellant] should be assessed in relation to participating in a Sex Offender Treatment Program.

[The appellant] denies any current attraction towards children and denies any sexually deviant fantasies. However, his attitude in relation to the offences as described in detail above, together with the significant personality pathology, remain factors for reoffending.

31 Ms Hasson administered the Static-99 risk assessment. She said that the appellant's score placed him in the 'medium - low' risk category with a one in 10 chance of sexually reoffending within a 5-year period. She added that, in her view, his Static-99 score was a 'fair representation' of his current risk.

32 The sentencing judge concluded that during the period of the offending the appellant was lonely, socially awkward, unable to form appropriate adult sexual relationships and, as a result, he was drawn to his nephews who were young and whom he thought were less likely to reject him. He was emboldened by their youth and vulnerability, and he felt close to them as they were family members.

The total sentence imposed is manifestly excessive having regard to:

1. At sentence, the Appellant was 70 years of age;
2. The passage of some 34 years since the last of the offences sentenced without further offending;
3. The Appellant's mental state at the time of offending;
4. The Appellant's remorse and pleas of guilty;
5. The finding that specific deterrence is considerably less of a factor and it is less likely the Appellant will reoffend;
6. The acceptance that an immediate term of imprisonment was not inevitable - leaving open the imposition of a suspended sentence;
7. The finding that in the circumstances of the case general deterrence required an immediate term of imprisonment;
8. The application of a more serious view of the offending than was applicable at the time;
9. The refusal to hear counsel or to consider a submission that a shorter finite term without eligibility for parole would be appropriate in the Appellant's circumstances.

34 The ground of appeal, read with the appellant's written submissions, confuses rather than elucidates the issues in the appeal.

35 After this court questioned counsel for the appellant, it emerged that counsel was seeking to contend that:

(a) the sentencing judge made express errors, as contended in particulars 8 and 9 of the ground of appeal;

(b) the individual sentences imposed for counts 6, 9, 12 and 18 were manifestly excessive; and

(c) the net effective head sentence infringed both limbs of the totality principle.

36 I will consider each of these issues even though most of them are not, on any view, within the ground of appeal.

The merits of the appeal: alleged express error: the application of a more serious view of the offending than was applicable at the time

37 The sentencing judge made these remarks in the course of sentencing the appellant:

You are to be sentenced according to the penalty applicable at the time the offence was actually committed, but in judging the seriousness of your offending, I should also apply the greater understanding and knowledge the community and the courts now have of the destructive impact of these offences (ts 64).

38 It was submitted on behalf of the appellant that although her Honour acknowledged (correctly) that the appellant must be sentenced on the basis of the statutory penalties applicable at the time of the offences, she decided, in effect, that because Parliament had subsequently increased the penalties as a result of a better understanding of the seriousness of sexual offending against children, more severe sentences should be imposed on the appellant than would have been the case if he had been sentenced before the penalties were increased.

39 In my opinion, the sentencing judge did not err as alleged.

40 Her Honour rightly appreciated that, by s 10 of the Sentencing Act 1995 (WA), if the statutory penalty for an offence changes between the time when the offender committed it and the time when the offender is sentenced for it, the lesser statutory penalty applies for the purposes of sentencing the offender.

41 The sentencing judge was entitled to take into account, when sentencing the appellant, the current knowledge and understanding of the courts in relation to the adverse consequences of sexual offending against children. See R v Leggett [2000] WASCA 327 [22] (Wheeler J, Pidgeon & Ipp JJ agreeing); Regan v The State of Western Australia [2005] WASCA 240 [16] (McLure JA, Steytler P & Wheeler JA agreeing).

42 Her Honour did not misuse this knowledge and understanding for the purpose of imposing individual sentences or a net effective head sentence that were not commensurate with the seriousness of the offences or that were more severe than would have been imposed before the penalties were increased. As I explain in dealing with the appellant's complaints of manifest excess and infringement of the totality principle, her Honour's sentencing discretion did not miscarry and the sentences imposed were within the applicable range having regard to all relevant considerations including the maximum penalties at the time of the offending and the seriousness of the offences (including all aggravating and mitigating factors) in the context of those penalties.

The merits of the appeal: alleged express error: refusal to hear counsel or to consider a submission that a shorter finite term without eligibility for parole would be appropriate in the appellant's circumstances

43 Ms Hasson said in her report in relation to the availability of sex offender treatment programmes in prison:

[The appellant] accepts responsibility for his offending behaviour and is willing to engage in recommended programs or interventions. He is considered suitable to participate in sex offender treatment programs offered by the Department of Corrective Services. Programs are available in both the community and custodial settings however it should be noted that as [the appellant's] level of assessed risk is relatively low and he has few immediate treatment needs he may not be offered a place on a program given the long waiting lists for treatment places for high risk high need sex offenders.

44 During the sentencing process, the following exchange occurred between the appellant's counsel and the sentencing judge:

Ma'am, just as I leave [Ms Hasson's] report, one of the questions of course that will no doubt be in the forefront of your Honour's mind today is whether or not he should be made eligible for parole in the event that your Honour is against us on the question of a conditional suspended gaol term.

Moving to that issue, ma'am, it is important, I think, to factor into your Honour's consideration that in the final paragraph of Ms Hasson's report there is a rather alarming comment which of course makes me then think whether, if your Honour is going to order that he receive an immediate custodial term, that your Honour might consider giving him a finite term as opposed to a term that included provision for parole. We say that, ma'am, because of this - - -

SWEENEY DCJ: I don't need to hear you on that aspect, Mr Devlin.

DEVLIN, MR: As your Honour pleases. Your Honour knows what the difficulty of course is; that at his age he is not likely to qualify or be a candidate for a treatment program. Thank you, ma'am (ts 46).

45 It was submitted on behalf of the appellant that if the sentencing judge decided (as she did) to impose an immediate (instead of a suspended) term of imprisonment, then she should have imposed a lower finite term of imprisonment, without eligibility for parole, because the passage in the report of Ms Hasson which I have set out indicates that he may not be offered a place in a sex offender treatment programme. As a result, so it was submitted, he may not be released on parole at his earliest eligibility date for release, or at all.

46 In my opinion, there is no merit in this complaint.

47 It may be that there was a misunderstanding between the appellant's counsel and the sentencing judge. Her Honour appears to have thought that counsel was concerned that she might not make a parole eligibility order whereas counsel appears to have been advancing a submission that a parole eligibility order should not be made and, as compensation, a lower net effective head sentence should be imposed.

48 I am satisfied that the sentencing judge's approach was correct. First, a sentencing judge is required to make a parole eligibility order unless the discretion to decline to do so is triggered by the presence of two or more of the factors identified in s 89(4) of the Sentencing Act. See Moody v French [2008] WASCA 67; (2008) 36 WAR 393 [50] (Steytler P, Wheeler, McLure & Buss JJA). In the present case, the sentencing judge's discretion to decline to make a parole eligibility order was not triggered. Secondly, there is no basis for concluding, on the material before her Honour or this court, or on the basis of the courts' knowledge and understanding of the current or traditional practices applying to the release on parole of sex offenders, that there is a real risk that the appellant may not be released on parole at his earliest eligible date for release or at all, because he may not be offered a sex offender treatment programme by the Department of Corrective Services. The current practice is that a sex offender will not be released on parole if he or she denies having committed the offences in question or if he or she refuses to participate in rehabilitation (including sex offender treatment) programmes. This does not apply in the present case. The appellant has accepted responsibility for his offending behaviour. He is willing to engage in recommended programmes and interventions. The appellant was aged 70 years when he was sentenced and he has been assessed as at a relatively low risk of reoffending.

The merits of the appeal: alleged manifest excess in relation to the individual sentences for counts 6, 9, 12 and 18

49 The individual sentences for counts 6, 9, 12 and 18 were these. Count 6 (indecent dealing): 12 months. Count 9 (indecent dealing): 16 months. Count 12 (indecent assault): 14 months. Count 18 (indecent dealing): 18 months. The indecent dealing offences carried a maximum penalty of 7 years' imprisonment. The indecent assault offence carried a maximum penalty of 3 years' imprisonment.

50 The legal principles relating to manifest excess are summarised in my reasons in Royer v The State of Western Australia [2009] WASCA 139 [126] - [127]. It is unnecessary to repeat them.

51 The primary sentencing considerations in cases of sexual abuse against children are personal deterrence, general deterrence and punishment of the offender. Matters personal to the offender are of less mitigatory weight than might otherwise be the case. See VIM v The State of Western Australia [2005] WASCA 233; (2005) 31 WAR 1 [320] - [321] (Wheeler & Roberts-Smith JJA & Miller AJA).

52 I am not persuaded that any of the individual sentences imposed for counts 6, 9, 12 and 18 exceeded the permissible range after taking into account and evaluating the maximum penalty, the standards of sentencing customarily observed with respect to the offence, the place which the appellant's criminal conduct occupies on the scale of seriousness applicable to the offence, and the appellant's personal circumstances.

53 As to comparable sentences, see Regan. In Regan, the offender was convicted after trial of three counts of unlawfully and indecently dealing with a child under the age of 14 years (maximum penalty: 7 years' imprisonment) and five counts of committing acts of gross indecency with a male (maximum penalty: 3 years' imprisonment). The offences were committed between October 1981 and October 1987. The complainant was the son of the offender's cousin. He was aged between 9 and 16 years during the relevant period. At all material times, the complainant lived in Kalgoorlie and the offender in Perth. The offences were committed during three visits by the offender to Kalgoorlie during the relevant period. The offending conduct involved oral and manual stimulation of the complainant's penis. The trial judge sentenced the offender to a total effective head sentence of 6 years' imprisonment. The individual sentences for the three counts involving masturbation were 2 years on one count and 16 months on each of the others. The individual sentences for the five counts involving oral sex were 2 years on one count and 16 months on each of the others. A parole eligibility order was made. This court allowed the offender's appeal on the ground that the sentencing judge had failed properly to apply the totality principle. The offender was aged 73 years at the time of sentencing. The last of the offences for which he was convicted occurred more than 17 years before sentencing. He had no prior record of offending and there was no evidence of any offending after the relevant period. The sentencing judge accepted that, for all practical purposes, he was unlikely to be a risk to the community. Medical evidence indicated that the offender suffered from mild cognitive impairment, anxiety and a bladder complaint, but these matters were not, either individually or cumulatively, significant from a sentencing perspective. This court substituted a net effective head sentence of 4 years, being 6 years less one-third in accordance with the 'truth in sentencing' legislation then in force. The individual sentences were not disturbed. The offender remained eligible for parole.

54 The appellant's offending in the present case was more serious and sustained, and involved more victims, than the offending in Regan, even though the offender in Regan did not plead guilty.

55 The appellant's age at the time of sentencing was properly addressed by the sentencing judge. He has no serious or permanent health difficulties. Her Honour took into account the period of about 34 years since the last of the offences was committed in accordance with Bell v The Queen [2001] WASCA 40 [8] - [9] (Anderson J, Kennedy J agreeing).

56 The appellant's mental state at the time of offending was relevant to count 3, but not any of the other counts.

57 The sentencing judge gave the appellant a discount of 20% for his pleas of guilty and cooperation with the police. The amount of the discount was appropriate in the circumstances.

58 Her Honour acknowledged that specific deterrence was of limited relevance in the appellant's case because he was 70 years of age at the time of sentencing and had not offended for some decades.

59 The sentencing judge said, generously in my view, that an immediate term of imprisonment was not inevitable. She gave consideration, in accordance with established principles (see, for example, The State of Western Australia v Johnson [2009] WASCA 224 [67] - [72] (Buss JA, Owen & Wheeler JJA agreeing)), as to whether a suspended term was open and decided that an immediate term of imprisonment was the only appropriate sentencing option. That decision was, without doubt, correct.

60 In my opinion, each of the individual sentences for counts 6, 9, 12 and 18 reflected a proper exercise of the sentencing discretion. Each sentence was appropriate having regard to the seriousness of the particular count, the age of the victim, the disparity in age between the victim and the appellant, the importance of general deterrence, and matters personal to the appellant.

The merits of the appeal: the totality principle

61 The nature of the totality principle and the manner of its application are summarised in my reasons in PAS v The State of Western Australia [2009] WASCA 210 [106] - [108] (Owen & Wheeler JJA agreeing).

62 There is no tariff for sexual offences. The circumstances of sexual offending, and of sexual offenders, are almost infinitely variable. See The State of Western Australia v Akizuki [2008] WASCA 267 [68] (Steytler P, McLure JA agreeing).

63 Australian authorities have established that advanced age is a relevant consideration in determining whether a sentence will be 'crushing' for the purpose of the totality principle. The rationale is that each year of a sentence represents a substantial proportion of the period of life which is left to an offender of advanced age. See R v Hunter (1984) 36 SASR 101, 103 (King CJ); R v Whyte [2004] VSCA 5; (2004) 7 VR 397, 405 - 406 (Winneke P, Bongiorno & O'Bryan AJJA agreeing); Braham v The Queen (1994) 116 FLR 38, 51 (Angel J); Gulyas v The State of Western Australia [2007] WASCA 263; (2007) 178 A Crim R 539 [34] (Steytler P, McLure & Miller JJA agreeing); R v Iles [2009] VSCA 197 [31] - [35] (Redlich JA, Neave JA agreeing).

64 However, whether and, if so, to what extent leniency should be given to an offender of advanced age, depends on all of the facts and circumstances of the particular case. As Steytler P noted in Gulyas, the authorities emphasise that age is only one factor in the sentencing process and that advanced age can never be a justification for a sentence which is not fairly proportionate to the offence or otherwise inappropriate [35]. See also Hunter, 103. An offence may be so serious that humanitarian considerations cannot be accommodated.

65 The sentencing judge expressly took into account the appellant's advanced age and the greater impact that a lengthy term of imprisonment would have on him because it represents a greater proportion of his remaining expected life.

66 Her Honour also expressly referred to and gave the appellant credit for matters of mitigation. In particular, there were the appellant's pleas of guilty (although not entered at the first opportunity); the appellant's cooperation with the police; the period of about 34 years since the commission of the last offence without any other offending; the absence of a prior criminal record; the appellant's age; his acceptance of responsibility for his offending behaviour and his apparent remorse; and his mental illness at or about the time when count 3 was committed.

67 Despite the appellant's personal circumstances at the time of the offending and the mitigatory features to which I have referred, the offending behaviour was very serious and disgraceful, and had a significant and enduring impact on the victims. As her Honour said:

Part of the reason you were able to perpetrate these offences was the significant age disparity between you and your victims. You were very much an adult, 27 to 28 at the start, and 36 to 37 years old in the last offences, compared to these boys being nine to 10 and up to 16 for the last offence. Clearly you had considerably more power in the relationship and you were their uncle, so you were also in a close relationship to the adults to whom they might have turned for help.

In relation to each of these boys you were in a position of trust. They were all your young nephews. You were trusted to take them places such as camping trips. Counts 10, 12, 16, 21, 23 and 24 all occurred in circumstances where you were alone with your victim, having driven him somewhere. Count 12 involved you taking [K] on a camping trip and staying overnight with him in an empty farmhouse. Clearly you were trusted by your brother, his father, to keep him safe.

Count 3 occurred when you were in the victim's own home and you asked him to join you later after everyone else had gone to bed. You admitted to the police sneaking into [K] and [J's] house after midnight where you then abused them, though they are not the subject of specific counts.

Count 6 occurred when [A's] parents were sitting in the back seat of the car as you drove along. That offence was brazen and the effect it had on [A] was not surprising. The behaviour was predatory. I do not accept it was merely opportunistic when you took the boys on car trips and snuck into their house at night.

...

These boys were your nephews. The behaviour therefore falls within what is commonly regarded as incestuous behaviour. Again you showed little concern for your nephews' feelings or the likely degree of shame they would experience about that.

...

The state's case was a strong one. Of course that was due in no small part to your own admissions to the police, but the state also had three complainants giving at times strikingly similar evidence and two further witnesses who could give propensity evidence. There was also evidence of a broad admission made to one of your brothers. The prospect of your being outright acquitted had the matter gone to trial was I conclude non-existent.

...

There has been a significant delay between the offences being committed and this prosecution, due partly to the delay in the complainants coming forward and also partly to the attitude the police took to the initial complaint made by [A]. The delay has not impacted on your life over and above the fact that any guilt you felt has been felt over that period without exposure. On the other hand, you have worked and been a member of a sporting club and enjoyed a certain level of appreciation from others who were ignorant of these matters. During that time, your victims have had to struggle with the effects of this abuse.

You have, it seems - purely from your own insight - decided to stop offending back in the late 1970s. There's no suggestion that any offending behaviour has occurred since. There is no evidence however that you have since devoted yourself tirelessly to charitable works or made any serious attempts to make amends to your victims. There is no suggestion that you ever volunteered to their parents what you had done to their sons or that you ever made any kind of apology.

Delay is not generally seen as mitigatory in sexual cases where children are involved. Children very often do not tell. It is so very understandable that boys would keep this sort of offending a secret even after they had matured enough to know it was wrong. It was perfectly natural for them to be afraid and unwilling to disclose, particularly when you were their father's brother and when the behaviour was homosexual in nature and they were just beginning to notice girls.

The fact is you picked your victims and you benefited from their secrecy for years. I do not regard the delay as mitigatory except insofar as it suggests that you are not now likely to reoffend because you have not done so for a long time. You are of course also aged now, which also leads me to conclude you are less likely to reoffend in any event and I assume that your victims have not allowed you free access to their children (ts 65 - 68).

68 The net effective head sentence of 5 years' imprisonment bears a proper relationship to the overall criminality involved in the offences committed by the appellant, viewed in their entirety, having regard to all relevant circumstances including those referable to the appellant personally. As to comparable sentences, see Regan and my observations at [53] - [54] above. Further, although the appellant was 70 years of age at the time of sentencing, he has no serious or permanent health difficulties and the net effective head sentence does not destroy any reasonable expectation of useful life after release from custody.

The on-going abuse and 'uncharged acts' during the period of offending

69 The sentencing judge referred to, and I have recounted, the evidence that the appellant engaged in other sexual abuse towards the victims during the period in which he committed the 11 counts to which he pleaded guilty.

70 The appellant was, of course, to be punished only for the 11 counts in question. The relevance of the on-going abuse and the 'uncharged acts' was that they placed the 11 counts in their proper context and rebutted any suggestion which might have been made that the 11 counts for which he was to be sentenced were aberrations during the 10-year period of offending.

71 It was not suggested (nor could it have been suggested) that her Honour made any error in referring to and commenting upon the on-going abuse and 'uncharged acts'.

72 I would grant leave to appeal but, for the reasons I have given, the appeal should be dismissed.