Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA

Criminal law - State appeal against sentence - Whether total sentence manifestly inadequate - Whether breach of totality principle - Respondent committed multiple serious sexual offences against granddaughter - Total sentence unreasonable and unjust given seriousness of offending and sentences customarily imposed for multiple sexual offending by person in a relationship of trust who pleaded not guilty

Criminal Code (WA), s 329(2), s 329(3), s 329(4), s 329(5), s 329(6)

Orders made by sentencing judge in relation to cumulation and concurrence set aside

Bosworth v The Queen [2004] WASCA 43

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

F v The State of Western Australia [2008] WASCA 100

FGC v The State of Western Australia [2008] WASCA 47

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

GMS v The State of Western Australia [2009] WASCA 107

H v The State of Western Australia [2006] WASCA 53

HAS v The State of Western Australia [2005] WASCA 29

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

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

LWJR v The State of Western Australia [2009] WASCA 200

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

M v The State of Western Australia [2007] WASCA 238

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

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

RJB v The State of Western Australia [2009] WASCA 49

RMS v The State of Western Australia [2010] WASCA 76

RNN v The State of Western Australia [2010] WASCA 26

Rogers v The Queen [2004] WASCA 147

Schriever v The State of Western Australia [2008] WASCA 133

The State of Western Australia v BLM [2009] WASCA 88; (2009) 256 ALR 129

TJD v The State of Western Australia [2004] WASCA 310

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

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

Webb v The Queen [2003] WASCA 266

Woods v The Queen (1994) 14 WAR 341

1 McLURE P: This is a State appeal against sentence. On 2 December 2009 the respondent was convicted after trial of 17 counts of sexual offences against his granddaughter, who was aged between 9 to 11 years during the period of the offending.

2 On 29 January 2010 the respondent was sentenced by Stevenson DCJ to a term of imprisonment on each count as follows:

Procured lineal relative, being a child under 16, to do indecent act: s 329(5) Criminal Code (WA) ('Code')

Indecently recorded lineal relative, being a child under 16: s 329(6) Code.

Procured lineal relative, being a child under 16, to do indecent act: s 329(5) Code.

Sexually penetrated lineal relative, being a child under 16: s 329(2) Code.

Sexually penetrated lineal relative, being a child under 16: s 329(2) Code.

Sexually penetrated lineal relative, being a child under 16: s 329(2) Code.

Sexually penetrated lineal relative, being a child under 16: s 329(2) Code.

Indecently dealt with lineal relative, being a child under 16: s 329(4) Code.

Indecently dealt with lineal relative, being a child under 16: s 329(4) Code.

Sexually penetrated lineal relative, being a child under 16: s 329(2) Code.

Sexually penetrated lineal relative, being a child under 16: s 329(2) Code.

Indecently recorded lineal relative, being a child under 16: s 329(6) Code.

Procured lineal relative, being a child under 16, to do indecent act: s 329(5) Code.

Procured lineal relative, being a child under 16, to engage in sexual behaviour: s 329(3) Code.

Sexually penetrated lineal relative, being a child under 16: s 329(2) Code.

Sexually penetrated lineal relative, being a child under 16: s 329(2) Code.

Indecently recorded lineal relative, being a child under 16: s 329(6) Code.

3 The sentencing judge ordered that all counts except count 1 be served concurrently with each other but cumulatively on count 1, resulting in a total effective sentence of 5 years 3 months' imprisonment.

4 The State contends the total effective sentence is so inadequate as to manifest error having regard to the standards of sentencing customarily observed for such offences. In substance, the appellant claims that the total effective sentence infringes the first limb of the totality principle, it being manifestly inadequate to reflect the total criminality of the respondent's offending against his granddaughter. The appellant must establish that the total effective sentence is unreasonable or unjust.

5 The sentencing judge accepted that the relevant facts were set out in the State's written submissions which he summarised. There were five discrete incidents of offending. One morning between 1 January 2007 and 18 October 2007, the complainant was at the respondent's home in Kinross having stayed the night. The complainant was born on 26 October 1997 and thus was aged 9 at the relevant time. The respondent and the complainant were the only people at the house. The respondent directed the complainant to an en-suite bathroom and told her to remove her clothes. The complainant did as she was told. The respondent then told the complainant to lay in the shower with her legs open in the air. The complainant complied (count 1). The respondent then produced a digital camcorder and began recording the complainant's pose (count 2). Count 2 was a representative count to reflect the respondent's continued use of the camcorder during the commission of all of the sexual offences during this episode of offending.

6 The respondent then directed the complainant to feel around her vagina with her fingers, which she did (count 3). This lasted for about 10 minutes during which time the respondent was recording the complainant. The respondent then placed the camcorder on top of the toilet lid and removed his penis from his pants. The respondent directed the complainant to position herself with her hands and feet on the ground and her buttocks in the air which she did. The respondent then penetrated the complainant's anus with his penis for approximately 5 minutes (count 4). The complainant was in pain and told the respondent to stop.

7 Later, the respondent positioned the complainant on his bed and removed the complainant's knickers. He then positioned the camcorder to record him engaging in cunnilingus with the complainant (count 5). While doing this the respondent was positioned so that his penis was at the complainant's face and he directed her to engage in fellatio with him, which she did for five to 10 minutes (count 6). When this came to an end, the respondent removed a vibrator from the bedside drawer and made the complainant lay on her back on the bed. He inserted the vibrator in and out of the complainant's vagina for about three minutes (count 7). This offence came to an end when the complainant complained that it was hurting her.

8 On an occasion between 1 January 2008 and 18 October 2008, the complainant was at the respondent's home in Kinross, again for a sleep over. The respondent and the complainant were in the lounge room and the respondent directed the complainant to the computer desk. The respondent sat the complainant on his knee and, using a laptop, accessed a pornographic internet site. The respondent showed the complainant two pornographic movies on the computer (count 8).

9 One evening between 1 January and 18 October 2008, the complainant was again at the respondent's home in Kinross. The respondent took the complainant into his bedroom and directed her to kneel on the floor. The respondent sat on the bed, removed his penis and masturbated in full view of the complainant (count 9). The respondent then stood up in front of the complainant, placed his penis into her mouth and ejaculated (count 10). The complainant spat the ejaculate onto the carpet.

10 On 18 September 2008, the complainant was at home in Gosnells with her mother and siblings. The complainant's mother suffered an asthma attack which required her to be taken to hospital. At the mother's request, the respondent came to the house in Gosnells to babysit the complainant and her siblings. The respondent went into the complainant's bedroom, where the complainant was alone. The respondent told the complainant to grab something and pretend to drop it and bend over. The complainant did so and positioned herself so that her hands and feet were on the floor and her buttocks in the air. The respondent removed his penis and told the complainant to try and sit. The respondent then penetrated the complainant's anus with his penis (count 11). This lasted for about five minutes and caused pain to the complainant. On the respondent's direction, the complainant went and had a shower. The respondent came into the bathroom, produced a camcorder, and began filming the complainant in the shower (count 12). Count 12 is a representative count for all indecent acts which the respondent recorded on 18 September 2008. The respondent directed the complainant to rub her breasts. The complainant complied with the request (count 13). The respondent then directed the complainant to lay down in the shower with her legs spread apart. At the direction of the respondent, the complainant rubbed her vagina with her fingers (count 14).

11 On 28 December 2008 the complainant and her family were celebrating a Christmas lunch at the respondent's house in Kinross. During the day the respondent took the complainant for a drive to his worksite in Burns Beach. After parking the car, the respondent directed the complainant to remove her clothes which she did. The respondent produced a camcorder which he placed on the dashboard of the car and commenced recording. The respondent then engaged in cunnilingus with the complainant for five minutes (count 15). Whilst doing this the respondent instructed the complainant to engage in fellatio with him which she did for approximately five minutes (count 16). The respondent used his camcorder to record each of the offences committed in the car (count 17).

12 On 21 January 2009 the complainant disclosed the offending to her maternal grandmother (the respondent's ex-wife). The complainant's mother was told and she notified the respondent's current wife of the allegations. A complaint was made to police some days later. As part of the subsequent investigation, the respondent's home was searched on 2 February 2009. The video recordings of the offending were not recovered.

13 The respondent maintained a steadfast denial that any of the offences occurred and gave evidence at trial to that effect. Notwithstanding his convictions, many of the respondent's family continued to accept his denial of the offending. In the face of a denial that any offence occurred, there is little scope to find in an offender's favour in relation to notions of remorse, rehabilitation or the risk of re-offending.

14 The State accepted that the offending is not in the worst category for the purposes of the principles in The State of Western Australia v BLM [2009] WASCA 88; (2009) 256 ALR 129. However, as acknowledged by the sentencing judge there were a number of very serious aggravating circumstances in the case including:

(a) the offences were committed over a lengthy period of time, being at least 14 months between the commission of the first offence and the last offence;

(b) the offences occurred at a time when the complainant was particularly vulnerable, having only recently returned to live with her mother after protracted Family Court proceedings. The sentencing judge noted that the complainant would have been concerned not to do anything to put at risk her living together with her mother and siblings again;

(c) the offences involved a serious breach of trust, the respondent being the biological grandfather of the complainant and assuming the role of regular carer of the complainant;

(d) the offending had a tragic impact upon the complainant and the wider family.

15 At the time of the offending the respondent was aged between 48 and 50 years. He was 51 at the time of sentencing. He had no relevant prior criminal record for sentencing purposes. He also had the full support of his immediate family.

16 There is no dispute between the parties as to the legal principles that govern the disposition of this appeal. An appellate court is not entitled to intervene merely because it would have exercised the sentencing discretion in a manner different than the sentencing judge. It can only intervene if the sentencing judge has made an express or implied material error of fact or law. In this case the appellant relies on an implication of error arising from the total effective sentence.

17 A total effective sentence must bear a proper relationship to the overall criminality involved in all the offences, viewed in their entirety and having regard to the circumstances of the case, including those referable to the offender personally: Woods v The Queen (1994) 14 WAR 341. The practical effect of the totality principle is ordinarily to arrive at an aggregate sentence that is less than that arrived at by simply adding up all the terms appropriate for the individual offences.

18 Cases of intra-familial sexual abuse typically attract significant sentences of imprisonment. Sexual offences involving children are of the utmost seriousness, particularly where an abuse of trust is involved. General deterrence is the dominant sentencing consideration having regard to the need to protect vulnerable children, with reduced weight being given to matters referable to the offender personally: Woods (346).

19 When considering whether an individual or total sentence is unjust or unreasonable, regard is had to sentences customarily imposed for offences of that type. The parties referred the court to a number of relevant cases. The starting point is VIM v The State of Western Australia [2005] WASCA 233; (2005) 31 WAR 1. The court noted in VIM that sentences for multiple counts of sexual offending against a child had significantly firmed up since the review undertaken by Anderson J in Woods. Schedule A to the reasons in VIM details the total sentences imposed in cases of multiple sexual offending against children (more than five sexual offences) in which there had been a plea of guilty. The court identified around 6 years and 8 months as the most common sentence one would expect to see [309]. The court also observed that the discount for the plea of guilty would be towards the higher end of the scale [298]. The court endeavoured to undertake a similar exercise in relation to sentences imposed after trial. However, the sample was too small and diverse [310]. The court suggested a more reliable guide was to rely on the cases in Schedule A, scaling them up by around one-third to reflect the absence of a plea of guilty [311].

20 I have reviewed many of the comparable cases decided after VIM. They are as follows:

RMS v The State of Western Australia [2010] WASCA 76

RNN v The State of Western Australia [2010] WASCA 26

LWJR v The State of Western Australia [2009] WASCA 200

GMS v The State of Western Australia [2009] WASCA 107

RJB v The State of Western Australia [2009] WASCA 49

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

Schriever v The State of Western Australia [2008] WASCA 133

F v The State of Western Australia [2008] WASCA 100

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

M v The State of Western Australia [2007] WASCA 238

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

H v The State of Western Australia [2006] WASCA 53

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

FGC v The State of Western Australia [2008] WASCA 47

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

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

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

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

21 In FGC the court dismissed the appellant's appeal against his total effective sentence. The appellant, who was an old man at the time of trial, was convicted of six offences which had been committed many years earlier.

22 Having regard to the seriousness of the circumstances of the offending in this case and all other relevant sentencing variables, it is clear that the total effective sentence imposed on the respondent is well below total sentences customarily imposed for multiple sexual offending by a person in a relationship of trust who pleaded not guilty. Indeed, the total effective sentence imposed on the respondent is less than that imposed in a number of comparable cases where there was a plea of guilty (HAS v The State of Western Australia [2005] WASCA 29; TJD v The State of Western Australia [2004] WASCA 310; Rogers v The Queen [2004] WASCA 147; Bosworth v The Queen [2004] WASCA 43; Webb v The Queen [2003] WASCA 266; RMS; RJB; F; KC; and M [2007]).

23 It is this court's function to ensure as far as possible that there is broad consistency in the exercise of the sentencing discretion. In that way, there can be no creeping practical dilution of the discount which a guilty plea attracts.

24 The fact that the total sentence imposed on the respondent falls well below those sentences customarily imposed cannot be explained by the level of seriousness of the circumstances of the offending or any other

relevant sentencing factor. The respondent's offending conduct is at the higher end of the scale of seriousness of multiple offending of its type; it involved numerous and diverse types of penetration of a young child, including anal penetration, in combination with the additional element of perversion, being the filming of the offending conduct by the respondent. When regard is had to all relevant sentencing considerations and the sentences customarily imposed for offences of this type, I am satisfied that the total effective sentence imposed on the respondent is unreasonable and unjust. The total effective sentence should be increased from 5 years 3 months to 8 years. That result can be achieved by ordering cumulation of the sentences on counts 4, 8, 13 and 17.

25 For these reasons, I would allow the appeal, set aside the orders made by the sentencing judge in relation to cumulation and concurrence and in lieu thereof order that the sentences on counts 4, 8, 13 and 17 be served cumulatively, with the balance of the sentences to be served concurrently. That results in a total effective sentence of 8 years' imprisonment to commence from 2 December 2009. The respondent must serve 6 years from the commencement date before becoming eligible for parole.