Court of Appeal (WA)|2007-09-28|Before: Owen JA

BPR -v- THE STATE OF WESTERN AUSTRALIA [No 2] [2007] WASCA 200 (28 September 2007)

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

CITATION : BPR -v- THE STATE OF WESTERN AUSTRALIA [No 2] [2007] WASCA 200

Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA

Sentencing - Totality principle - Seven counts of sexual offences against three complainants - Complainants aged between 12 and 14 - Sentence of 8 years and 4 months not disturbed - Turns on own facts

Sentencing Legislation Amendment and Repeal Act 2003 (WA)

1 OWEN JA: This is an appeal against sentences imposed on the appellant at the conclusion of a trial by jury in the District Court. The appellant was charged and convicted of offences of a sexual nature against young girls.

2 The female complainant, K, was born on 31 August 1988. She had lived with her mother and the appellant (who was born on 10 December 1970) for as long as she could remember. She called him 'dad'. The appellant and his wife also had three small children of their relationship.

3 When K was in year 4 at school, the family moved to Perth from a country town in Western Australia, and K started at a primary school in the area. When she was in year 6 she met and became friends with R, who was born on 16 May 1988 and who was in the same year. R was being raised by her grandmother. That year, K had her 11th birthday. K and R spent a lot of time together. R often used to stay overnight at K's home. They were so close, R regarded the appellant and his wife as being 'like her parents'.

4 The appellant and his wife used to talk about sex a lot in front of, and with the girls. The whole family would shower together on occasions. At various times between May 2000 and March 2003, incidents of a sexual nature occurred between the appellant and K. On one of these occasions, sexual activity also occurred between the appellant and R.

5 When K was in year 9 at school, the family moved to a different suburb and she went to a different high school to her friend R. They lost touch and at trial said they had not been in contact for some years.

6 Although K lost touch with R when she went to the new school, she made a new close friend, F, who lived with her mother and siblings. F was born on 11 May 1988. There was no father figure in the household in which F usually lived. F spent a lot of time at K's house. Like R, she became close to the family, even to the extent of referring to the appellant as 'dad' and to the appellant's wife as 'mum'.

7 F stayed with K and her family for almost the whole of the Christmas holidays of 2002/2003. She arrived around Christmas or New Year and stayed until a few days before school started again in early February. During this period, incidents of a sexual nature took place between the appellant and F.

8 K told no-one else about these incidents while she was living with the appellant and the other members of the family. Sometime after 21 March 2003, K went to stay with her godmother D. As a result of things that K told her, D never returned K to the appellant's house. The police were notified and K made her complaints on 26 March 2003. The appellant was interviewed by police that day and made certain admissions, but denied most of the allegations and, in particular, denied that there was any sexual intent on his part.

9 The appellant was charged on indictment with several offences arising out of events that I have described. In each case the date of the offence is specified as 'on a date unknown ...' and, in relation to K, the appellant was alleged to have known that she was his de facto child. In summarising the indictment I will omit those phrases. In relation to some of the counts, the appellant was charged jointly with his wife. As she was acquitted at trial, I will omit the references to her. The charges are as follows:

(a) Count 1: between 16 May 2000 and 15 May 2001 he sexually penetrated K, a girl under the age of 16 years, by engaging in cunnilingus;

(b) Count 2: on the same occasion he sexually penetrated R, a child under the age of 13, by engaging in cunnilingus;

(d) Count 4: between 31 August 2001 and 30 August 2002, he attempted to sexually penetrate K by attempting to penetrate her vagina with his penis;

(e) Count 5: in January 2003 he indecently dealt with F, a child between the ages of 13 and 16, by removing her clothing and exposing her breasts;

(f) Count 6: in January 2003 he indecently dealt with K by removing her clothing, exposing her breasts and sucking her nipple;

(g) Count 7: in January 2003 he indecently dealt with F, a child between the ages of 13 and 16, by squeezing her breasts;

(h) Count 8: in January 2003 he indecently dealt with K by removing her clothing and exposing her vagina;

(i) Count 9: between 1 and 31 January 2003 he indecently dealt with F, by placing his hand on her vagina;

(j) Count 10: between 1 February 2003 and 21 March 2003 he indecently dealt with K by placing his finger between her buttocks;

(k) Count 11: between 1 February 2003 and 21 March 2003 he indecently dealt with K by touching her vagina with his hand.

10 The appellant stood trial before a jury in the District Court in April 2005. The prosecution case included a deal of evidence of uncharged sexual acts by the appellant which was led to show the relationship between him and the complainants. The tenor of this evidence was that the appellant had been 'grooming' K to be sexually knowledgeable and accepting of his sexual conduct with her. I do not need to describe this evidence because it is recited in detail in BPR v The State of Western Australia [2007] WASCA 41 [21] - [25].

11 The jury convicted the appellant on some but not all of the counts on the indictment. The following table contains details of the jury verdicts and the age of the complainant at the time the offence was committed.

12 Counts 1 and 2 concerned events which occurred when the girls were in year 7 (the year they turned 12). The girls described the incident differently, although they both said the appellant performed cunnilingus on them in his bedroom.

13 In her evidence, K was unable to say how or why she or R came to be in the appellant's bedroom, or how she came to be lying on his bed with her legs apart. All she was able to say was that the appellant licked her vagina and that she then went out of the room leaving R there. R, on the other hand, said the three of them were playing Monopoly. R said the appellant and K went to the appellant's bedroom and she followed. First the appellant lay on the bed and then K did so. The appellant got up, removed K's knickers and licked her vagina while R watched. R had the impression K was uncomfortable but that she did not mind what was happening. K then told R to lie on the bed and said it would be alright. She did so, and removed her knickers. The appellant then did the same thing to her while K watched.

14 Count 3 was an offence in which the appellant put his hand up underneath K's top clothing and fondled her breast.

15 There were significant differences in the accounts given by K and F about counts 5 and 8. F said the events giving rise to count 5 occurred immediately after those giving rise to count 8. K recalled both incidents, but described them as separate incidents, with that in count 5 occurring first. For the purposes of this appeal, I do not think the difference in the accounts is of much moment.

16 One time during that stay, F was watching television with the appellant. K was in the kitchen, where she could be seen by them through the partition or room divider. F recalled the appellant saying to K 'show us your tits' and seeing K pulling her top up and 'flashing' her breasts at them. The appellant then made some comment about F's breasts being smaller and he leaned over and grabbed one of them through her nightdress. That was the subject of count 7.

17 Count 8 arose out of an incident which occurred when F returned to the computer room after brushing her teeth. When F returned, K was on the floor. and the appellant was pulling her jeans and underwear off, exposing her genitals, so that F 'could see everything'. On K's account, the incident ended there. F's evidence was that another incident followed immediately thereafter. But as the other incident was the subject of count 5, on which the appellant was acquitted, it can be ignored.

18 Count 9 concerned the last specific incident which occurred during F's long stay at the beginning of 2003. She was sitting on the appellant's lap at the computer. She had her nightdress on. She was wearing knickers. K was sitting next to them. F had her legs apart and on either side of the appellant's legs and her nightdress was riding up, as it tended to do. The appellant put his finger on her vagina on the outside of her knickers. She was very embarrassed by this, told him to leave her alone and left the room.

19 Counts 11 arose out of an incident, which occurred at the kitchen dinner table where the whole family was present. K got up from the table and went to the sink. When she returned to the table, the appellant grabbed her and pulled her onto his lap backwards so that she was leaning back against him. He then took some ice-cream, slid his hand down the front of her jeans and rubbed the ice-cream on her genitals.

20 The appellant was sentenced on 12 May 2005, about three weeks after the conclusion of his trial. The sentencing judge recited the facts from which each of the counts arose. I do not understand the appellant to argue that there was any error or misapprehension on her Honour's part about the facts. This included the evidence of surrounding circumstances that her Honour found was 'consistent with the ... sexual grooming that [the appellant] had performed' and which was an 'inappropriate ... influence on [K] at a time when she had developed sexually but was clearly in need of support and protection that should have been offered to her'.

21 In relation to R, her Honour remarked that the contact 'had gone beyond what was appropriate for a father towards a 12 year old daughter's school friend' and that the background events were 'inappropriate, in an attempt to sexualise the girls'. Her Honour described F as a girl lacking a stable home, immature for her years and highly suggestible. All of this led her Honour to find that the appellant 'breached [his] obligations a stepfather and as a parent figure for' the other girls. Her Honour had the advantage of seeing and hearing the complainants when they gave evidence and marked that the girls at times looked distressed, as was to be expected given the intimate nature of the material they were required to disclose.

22 The sentencing judge then turned her attention to personal factors relevant to the appellant. He was in his early 30s at the time of the offences and 35 when sentenced. He had a stable relationship with three young children. His employment record was excellent and he had no prior criminal record. The appellant had also indicated interest in undertaking educational programmes and sex offender treatment while in custody. I do not understand the appellant to argue that the sentencing judge failed to take into account, or give proper weight to, personal factors. After mentioning the personal factors, her Honour continued:

However, given the nature of the charges and the fact that the matters proceeded to trial, your personal circumstances can only receive limited weight. Each complainant has clearly suffered significantly. I'm well aware that totality must be addressed.

...

Dealing with the offences relating to [K], the first offence of aggravated sexual penetration is, in my view, the most serious in relation to her. Taking all of the matters that I have mentioned into account, including the ultimate totality of your sentence, that a term of five years' imprisonment is appropriate for count 1 and this will be reduced to a term of three years, four months' imprisonment pursuant to the transitional provisions.

In relation to count 3, the first aggravated indecent dealing offence committed against [K] ..., I impose a sentence of three years' imprisonment. That's reduced to two years' imprisonment pursuant to the transitional provisions, and this term is to be served concurrently with count 1 and that occurs because of the need to consider totality in respect of the total term for you to serve.

Similarly, in respect of counts 8 and 11, the remaining counts of aggravated indecent dealing in relation to [K], I impose terms of three years' imprisonment in respect of each that are reduced to two years' imprisonment pursuant to the transitional provisions and each of those terms is to be served concurrently with each other and concurrently with the sentence already imposed.

I now turn to count 2 relating to [R]. For the reasons that I have outlined and bearing in mind the totality principle, I impose a sentence of five years' imprisonment that is reduced to a term of three years, four months' imprisonment in light of the transitional provisions. This term is to be served cumulatively on the term that has been set.

In relation to [F], I impose a term of two years, six months' imprisonment, taking into account the totality of the term that must ultimately be served. This is in respect of the first count of aggravated indecent dealing relating to [F]. In light of the transitional provisions, this is reduced to a term of one year, eight months' imprisonment and this term is required to be served cumulatively.

In respect of the final count relating to [F], a sentence of two years, six months' imprisonment reduced to one year, eight months' imprisonment is also imposed. That term is to be served concurrently with the sentence that has already been imposed. Accordingly, you are sentenced to a total term of eight years, four months' imprisonment. [emphasis added]

23 In summary, and bearing in mind that there is no argument on appeal about the calculation of the discounts necessary to accommodate the transitional provisions in the Sentencing Legislation Amendment and Repeal Act 2003 (WA), the sentences of imprisonment actually imposed were as follows:

24 These three cumulative sentences together make up the total effective term of 8 years and 4 months. This equates to 12 years and 6 months under the previous legislation. It can be seen that her Honour structured the sentence by making one term in relation to each of K and F and the only term in relation to R cumulative and the remaining sentences concurrent. The appellant was made eligible for parole on each of the sentences.

25 The appellant initially sought leave to appeal against his conviction on counts 1 and 2. He also sought leave to appeal against the sentences on two grounds. First, that the sentences imposed on counts 1, 2 and 7 were manifestly excessive in all of the circumstances. Secondly, the sentence was arrived at in breach of the totality principle. In BPR, Roberts-Smith JA declined leave to appeal against conviction and also declined leave to appeal against the sentence on the first of the grounds mentioned but granted leave in relation to the second ground (save for the deletion of words alleging that the sentence was 'crushing').

26 The appellant did not seek to have the court review the dismissal of the applications for leave in relation to conviction and the first ground against sentence. Accordingly, the sole ground on which this appeal now turns is as follows:

The learned sentencing judge erred in not properly applying the totality principle of sentencing in imposing a head sentence of 8 years 4 months, which is not proportionate to the gravity of the offences committed.

27 Counsel for the appellant acknowledged that her Honour had made express reference to the totality principle. But he submitted that her Honour erred by considering totality in relation to four of the individual sentences, rather than at the end of the sentencing process. This made it impossible to disentangle totality considerations from the discounts necessary to accommodate the transitional provisions and it rendered unclear what, if any, allowance had actually been made to ensure that the effective head sentence of 8 years and 4 months was one proportionate to the gravity of the offending behaviour.

The totality principle -general considerations

28 The totality principle and the authorities in which it has been explained are well known. A sentencing authority who is imposing a series of sentences must calculate the sentence for each offence for which it is imposed, and which is properly to be made consecutive, but must then review the aggregate sentence and consider whether the aggregate is just and appropriate. It is often expressed in this way: 'when a number of offences are being dealt with and specific punishments in respect of them are being totted up to make a total, it is always necessary for the court to take a last look at the total just to see whether it looks wrong'.

29 This means that the sentence initially arrived at for an individual offence or offences must sometimes be adjusted so that the overall result of the combined sentences is just and appropriate. This can be done either by making sentences wholly or partially concurrent or by lowering the individual sentences below what would otherwise be appropriate.

30 The need to discount a sentence to give effect to the transitional provisions and a possible adjustment of sentences in accordance with the totality principle gives rise to different considerations but in a practical sense they will often fall to be applied together. As explained in Hapke v The State of Western Australia [2006] WASCA 188 [111], the one-third reduction for the transitional provisions must be applied to the individual sentences for the respective offences, and that must be done before orders for cumulation or concurrency can be made. But none of that precludes a sentencing judge considering the overall effect of possible individual sentences and various combinations of cumulation or concurrency, before fixing the particular sentences and their appropriate aggregation. And the same would apply if the sentencing judge were to decide that the totality principle should be honoured by reducing a term or terms rather than by a combination of cumulation and concurrency.

The totality principle and the facts of this case

31 An essential facet of any sentencing exercise is to assess the criminality of the conduct that constitutes the offences of which the accused has been convicted. When totality is in issue, the assessment of criminality is of particular relevance because the total sentence has to be judged against the gravity of the impugned conduct.

32 In this case, the gravity of the offending conduct was severe. It is true that none of the offences involved penile or digital penetration. Nonetheless, they constituted sexual misconduct of a high order. That misconduct involved these elements, which I will describe in no special order as they are all serious. First, there was a significant element of grooming the girls, especially K, to make them amenable to sexual advances. Secondly, there was a breach of trust in relation to all of the girls. He was the stepfather of one of them and was sufficiently close to the others to warrant them referring to him as 'dad'. Neither R nor F, when at their usual place of abode, lived with a person who could be described as a father figure. Thirdly, the offending conduct extended over a long period - somewhere between 20 months and 34 months. Fourthly, the offending conduct took a variety of forms, including cunnilingus, touching the vagina, touching breasts and exposing the breasts and genitalia. Some of these are more serious than others but none of them are inconsequential. Fifthly, it involved three separate girls.

33 Finally, it has had a marked effect on the girls. In relation to K, as was put be counsel for the State at the sentencing hearing, the offences resulted in her being ejected from the family and placed in foster care. The serious consequences that conduct of this type can have on children ought not to be underestimated. The table set out earlier in these reasons shows the age of each girl at the time of each offence. They were young and, inevitably, impressionable. Children are entitled to develop to maturity in all aspects of life (including sexuality) in a manner and according to a temporal progress that best suits their circumstances and which is free from improper, nefarious (and yet avoidable) influences. They have an inviolable right to expect that those close to them will nurture, not subvert, that developmental process. The appellant's conduct was a gross invasion of the rights of these girls.

34 Counsel for the appellant submitted that the conduct the subject of counts 1 and 2 (cunnilingus) involved a minimal degree of penetration and contact and was lower on the scale of seriousness of crimes of that nature. I have difficulty with that contention. Cunnilingus is, by definition, sexual penetration: Criminal Code s 319(1). But in its ordinary meaning it does not require actual penetration of the female organ by any part of the offenders anatomy. I cannot see how the seriousness of an act of that nature can be assessed according to something like the degree of penetration. In my view the seriousness of this offence lies in the circumstances in which the offence was committed, not in some close analysis of the form that the intimate contact took.

35 Counsel also submitted that the seriousness of these offences was ameliorated by the absence of threats or violence. That may be so, but only to a minimal extent because it is, to a significant extent, offset by the breach of trust and the element of grooming that I have already mentioned.

36 In relation to count 7, counsel urged us to take into account that the impugned conduct, namely the squeezing of F's breast, was on the lower side of offending and seriousness for offences of this type and ought not to have been visited by a sentence as high as 1 year and 8 months. I am not at all sure that this is so. But in any event, the other count against F (the sentence for which was the same but which was made concurrent) involved touching the vagina, a crime of undoubted seriousness.

37 The written submissions lodged on behalf of the appellant referred to a number of cases said to be comparable and which would support a conclusion that the overall sentence was disproportionate to the gravity of the offending conduct. Some of these cases were decided in the early to mid 1990s. There are two things to be said about them. First, none of them involved offences against three young girls. Secondly, I note the following passage from VIM v The State of Western Australia [2005] WASCA 233; (2005) 31 WAR 1, [288]:

It has been said on a number of occasions recently that there has been a 'firming-up' of sentences in cases involving sexual offences against children, as the courts have, over the years, gained a better understanding of the long-term effects of such offending upon the children concerned: see, for example, S v The Queen [2004] WASCA 113 per Malcolm CJ at [56] and [71] (Templeman and Miller JJ agreeing), Rogers v The Queen [2004] WASCA 147 per Templeman J at [54] and per Miller J at [95].

38 The court went on to describe what it meant by the phrase 'a better understanding'. For the purposes of this appeal I do not need to repeat what is there said.

39 There were, however, some more recent cases to which counsel referred. In Free v The State of Western Australia [2006] WASCA 259 the appellant was convicted of two sexual assaults and another eight offences, including indecent assaults and deprivation of liberty. On appeal his sentence was reduced from 6 years and 4 months to 5 years. But it followed pleas of guilty and the offences were committed against adults. It is not comparable.

40 The other cases referred to on behalf of the appellant were R v Smith [2004] WASCA 44 (5 counts, a 2 year suspended sentence), Bosworth v The Queen [2004] WASCA 43 (10 counts, 12 years' imprisonment), R v EPR [2001] WASCA 214 (7 counts, 5 years suspended changed to 4 years immediate), CA v The Queen [2000] WASCA 176 (4 counts, 9 years) and R v Leggett [2000] WASCA 327 (10 counts, 6 years and 4 months). A significant point of difference between those cases and this one is that they all involved offences against a single child, not three children. There are other distinguishing features in those cases. In Smith, the complainant was 17 and the offender did not stand in a position of trust with her. Bosworth involved a guilty plea. CA and Leggett were both Crown appeals.

41 In my view there is nothing much to be gained, in the circumstances of this case, from any closer analysis of the authorities to which counsel has referred. They do not, of themselves, provide support for the contention that the sentence imposed in this case is 'too much'.

42 All that having been said, I can see why the appellant might feel that there is some uncertainty concerning the extent to which the totality principle affected the sentences, particularly those imposed for the most serious offences (counts 1 and 2). I should explain what I mean by this statement.

43 The issue here is not so much whether totality played a part but the manner in which it did so. Totality is quintessentially a question of substance over form. The fact that a sentencing judge says that she or he has taken totality into account does not forestall an argument that the resultant sentence is out of kilter with the gravity of the conduct. Equally, the fact that totality is mentioned in the context of individual sentences, rather than in the context of the final result, and in a way that does not disclose the exact effect (either in a mathematical sense or as a matter of process) of the totality assessment, does not necessarily demonstrate error. In this respect attention must be directed to the substance of the sentences rather than their form.

44 There are numerous ways in which the application of the totality principle where an offender falls to be sentenced for multiple offences can be expressed. For example, a sentencing judge might say (when dealing with the individual offences) words to this effect: 'I had it in mind to give you X years but bearing in mind the total of all of the sentences I am about to impose I have reduced it to X minus Y years, with a further reduction for the transitional provisions'.

45 Alternatively, in order to adjust the total effect of the combined sentences, the judge might make concurrent or partly concurrent, a sentence or sentences that could justifiably been made cumulative.

46 Another possibility is that, having announced the sentences on each of the several counts without any reference to totality, the judge might say words to this effect: 'The total is X months. I have had one last look and I believe that this overall term is commensurate with the criminality of the conduct which these offences represent'. Yet another possibility is that it is at this stage that the judge explains why a sentence for a particular offence or offences is or are less than might otherwise have been expected or has or have been made concurrent instead of cumulative.

47 There are, of course, other ways of expressing the sentences and the judge may use them in combination. A sentencing judge is not obliged by law to follow any particular approach. Sentencing is difficult enough as it is and the prescription of methods of announcing sentences is likely to hinder, rather than assist, a process which, after all, is designed primarily to let the offender know why she or he has been treated in a particular way. But, relevantly, the law does demand that a sentencing authority have regard to totality as a matter of substance.

48 While I might have phrased the sentences differently, I can find no error in the way her Honour went about the task of sentencing the appellant. In my view, the sentencing remarks, when read in their entirety, indicate that her Honour did have regard to totality as a matter of substance. She mentioned it five times and (while that is not determinative) there is one demonstrable aspect in which it apparently

changed the structure that might otherwise have been applied. In count 3 the appellant was charged with indecent assault arising from an incident that was temporally and by genre distinct from the other counts. Totality to one side, had her Honour chosen to impose a cumulative sentence I doubt it could have been impeached. But that is not what happened. The sentence was made concurrent because, as her Honour said, 'of the need to consider totality in respect of the total term'. In the next paragraph of the sentencing remarks, her Honour turned to consider the sentences for counts 8 and 11, which were also made concurrent. The first word in that paragraph is similarly, which suggests to me that concurrency was ordered for the same reason, namely totality.

49 It has to be borne in mind that there is (consequent on the decision made by Roberts-Smith JA in BPR) no challenge to the individual sentences. It follows, then, that the only way the appeal could succeed is if the totality principle demanded that one or more of the sentences for counts 1, 2 and 7 be reduced or made concurrent in whole or in part. Her Honour expressly referred to totality when announcing the sentences on each of those counts. And she explained that totality was the reason why she was dealing with other counts in a particular way. In the light of all that, it is difficult to conclude other than that her Honour turned her mind to the question of substance in relation to counts 1, 2 and 7, formed the view that there was no warrant to reduce the terms or make them concurrent and arrived at the sentences accordingly. In my view it has not been demonstrated that her Honour erred either in her approach or conclusion in this respect.

50 The total sentence of 12 years and 6 months, reduced to 8 years and 4 months after the transitional provisions, might be seen as towards the higher end of the range given that there were no incidents of penile or digital penetration and given also the good antecedents of the appellant. But in my view her Honour arrived at the sentence after having taken into account questions of totality. It has not been demonstrated that the sentence is outside the range available in the sound exercise of the sentencing discretion. I would dismiss the appeal.

Legislation Amendment and Repeal Act 2003

BPR -v- THE STATE OF WESTERN AUSTRALIA [No 2] [2007] WASCA 200 (28 September 2007)

At a glance

Court

Decision date

Before

Catchwords

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Catchwords

Judgment (73 paragraphs)

BPR -v- THE STATE OF WESTERN AUSTRALIA [No 2] [2007] WASCA 200 (28 September 2007)

Legislation Cited (1)

Cases Cited (1)