//
© 2026 Zoe. All rights reserved.
Zoe is a legal information platform. Always consult the Federal Register of Legislation for authoritative text.
[2010] WASCA 76
Court of Appeal (WA)
2010-04-29
Mr J, Lure P, Owen JA, Newnes JA
Original judgment source is linked above.
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
CITATION : RMS -v- THE STATE OF WESTERN AUSTRALIA [2010] WASCA 76
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Criminal law - Appeal against sentence - Multiple counts of indecent dealing and sexual penetration by father against 12yearold daughter - Offences occurred over 24 hour period - Appellant voluntarily disclosed a number of the offences - Whether total effective sentence of 9 years infringed totality principle
Appellant sentenced to total term of 7 years' imprisonment
BPR v The State of Western Australia [No 2] [2007] WASCA 200
F v The State of Western Australia [2008] WASCA 100; (2008) 184 A Crim R 125
FGC v The State of Western Australia [2008] WASCA 47; (2008) 183 A Crim R 313
HAS v The State of Western Australia [2005] WASCA 29
KC v The State of Western Australia [2008] WASCA 216
M v The State of Western Australia [2006] WASCA 256
M v The State of Western Australia [2007] WASCA 238
Postiglione v The Queen [1997] HCA 26; (1997) 189 CLR 295
R v Ellis (1986) 6 NSWLR 603
RJB v The State of Western Australia [2009] WASCA 49
Roffey v The State of Western Australia [2007] WASCA 246
Ryan v The Queen [2001] HCA 21; (2001) 206 CLR 267
The State of Western Australia v Rock [2007] WASCA 121
Truscott v The State of Western Australia [2007] WASCA 62
VIM v The State of Western Australia [2005] WASCA 233; (2005) 31 WAR 1
Woods v The Queen (1994) 14 WAR 341
1 JUDGMENT OF THE COURT: This is an appeal against sentence. The appellant was sentenced by Groves DCJ in the District Court to a total effective term of imprisonment of 9 years for six counts of indecent dealing and six counts of sexual penetration against a person known to be a lineal relative. On 10 November 2009, the appellant was granted leave to appeal on the ground that the total effective sentence infringed the totality principle.
2 The appellant was 37 years old at the time of the offending. He is the biological father of the female complainant who was 12 years old at the time.
3 The appellant had been separated from the complainant's mother since 2000 and had infrequent custody of the complainant. On the evening of 20 December 2008 the appellant had custody of the complainant. The appellant and the complainant spent the night at the house of a friend of the appellant. In the course of the evening the appellant gave the complainant a number of alcoholic drinks until she became intoxicated and vomited.
4 The appellant took the complainant into a shower after removing her clothes and washed her body. While doing this the accused fondled the complainant's breasts with his hands and intimately kissed her on the mouth (count 1).
5 In the early morning of 21 December 2008, the appellant was driving the complainant to where he was living when he pulled off the side of the road in a rural area. The accused asked to have sex with the complainant but she declined saying she was very tired. The appellant got out of the vehicle and moved around to the side of the vehicle where the complainant was sitting and pulled her skirt and underwear off. The accused pulled the complainant into a supine position and lay on top of her penetrating her vagina with his penis (count 2). The appellant then ejaculated onto her stomach (count 3).
6 The appellant then took the complainant to other premises where he was living at the time. The appellant took the complainant into a bathroom ensuite off his bedroom and showered with her. Whilst they were in the shower the accused bent the complainant over and whilst standing behind her penetrated her vagina with his penis (count 4). The appellant then washed and fondled the complainant in the shower (count 5). The appellant dried the complainant's naked body and had her wash and dry his naked body (count 6).
7 The appellant then took the complainant into his bedroom and bent her over a vanity and whilst standing behind her penetrated her vagina with his penis (count 7). He ejaculated over her back (count 8).
8 The appellant and the complainant lay down on the appellant's bed and watched some movies before the accused lay on top of the complainant and penetrated her vagina with his penis (count 9). Later the appellant and complainant fell asleep on the bed. When the appellant awoke he asked the complainant for sex but she complained of being too tired. The appellant then placed his hands under her shorts and fondled her and penetrated her vagina with his fingers (count 10). The appellant got the complainant to masturbate his erect penis with her hands (count 11).
9 A short time later the appellant had lay on top of the complainant and penetrated her vagina with his penis (count 12).
10 Later that day the appellant took the complainant back to her mother's house where he dropped her off and left. The complainant was still suffering from the effects of being intoxicated.
11 The complainant disclosed the offences on 19 January 2009 and a police investigation was commenced. On 3 March 2009, the appellant learned that the police wished to speak to him and handed himself in to police that day. The appellant participated in a video recorded interview that day during which he made a full confession. In the course of doing so, he provided details of a number of offences which had not been referred to by the complainant. The appellant pleaded guilty on the fast-track system.
12 The sentencing judge took into account a pre-sentence report, a psychological report and a psychiatric report, which had been prepared in respect of the appellant. Those reports revealed that the appellant gave a history of a dysfunctional and unstable family background as a child, during which he had been subjected to sexual abuse by an elder sister and brother. He completed high school and served a period in the armed forces. Since then he has had a variety of occupations. The appellant has two children by his former wife, the complainant and a younger son. The appellant's relationship with his wife broke down in about 2000 and he subsequently entered into a de-facto relationship from which he has a daughter. That relationship broke down some months before the offences occurred and the appellant had moved in with a friend. In the psychiatric report, the psychiatrist expressed the opinion that the appellant's offending had been facilitated by factors which included a depressive illness and alcohol abuse. The sentencing judge accepted that the appellant acknowledged his wrongdoing and was remorseful for it.
13 Apart from three convictions for traffic related offences, the appellant had no prior convictions.
14 The sentencing judge imposed the following sentences:
Indecently dealt with a child lineal relative under the age of 16 years
Sexual penetration of a child lineal relative under the age of 16 years
Indecently dealt with a child lineal relative under the age of 16 years
Sexual penetration of a child lineal relative under the age of 16 years
Indecently dealt with a child lineal relative under the age of 16 years
Indecently dealt with a child lineal relative under the age of 16 years
Sexual penetration of a child lineal relative under the age of 16 years
Indecently dealt with a child lineal relative under the age of 16 years
Sexual penetration of a child lineal relative under the age of 16 years
Sexual penetration of a child lineal relative under the age of 16 years
Indecently dealt with a child lineal relative under the age of 16 years
Sexual penetration of a child lineal relative under the age of 16 years
15 His Honour considered that the overall criminality of the offending would be reflected by making the sentence on count 2 (the first occasion of penile penetration) cumulative with count 12 (the last occasion of penile penetration) and the other sentences concurrent on those sentences and each other, resulting in a total effective sentence of 9 years' imprisonment. The sentence was to commence from 4 March 2009 when the appellant was first taken into custody (the appellant having not applied for bail). The appellant was made eligible for parole.
16 The sole ground of appeal is that the total effective sentence infringed the totality principle in that it was disproportionate to the overall criminality involved in all the offences.
17 The totality principle requires the sentencing judge to ensure that the total effective sentence is an appropriate and just measure of the total criminality involved in all of the offences, viewed in their entirety and having regard to the circumstances of the case, including those referable to the offender personally: Postiglione v The Queen [1997] HCA 26; (1997) 189 CLR 295, 307 - 308; Woods v The Queen (1994) 14 WAR 341; Roffey v The State of Western Australia [2007] WASCA 246 [24] - [26].
18 It was submitted on behalf of the appellant that the total effective sentence of 9 years' imprisonment was disproportionate to the overall offending and it failed to reflect the following mitigatory factors:
(a) the appellant had cooperated with police and had made a full confession which included offences not mentioned by the complainant;
(b) the abuse did not occur over a lengthy period, as is commonly the case, but over a period of less than 24 hours; and
(c) the appellant was extremely remorseful, as was evident from his video record of interview and his fast track plea of guilty.
19 It is established that, when a conviction follows upon a plea of guilty that is itself the result of a voluntary disclosure of guilt by the offender, a further element of leniency enters into the sentencing process: Ryan v The Queen [2001] HCA 21; (2001) 206 CLR 267 [12], [92] - [94]. It was put this way in R v Ellis (1986) 6 NSWLR 603:
When the conviction follows upon a plea of guilty, that itself is the result of a voluntary disclosure of guilt by the person concerned, a further element of leniency enters into the sentencing decision. Where it was unlikely that guilt would be discovered and established were it not for the disclosure by the person coming forward for sentence, then a considerable element of leniency should properly be extended by the sentencing judge. It is part of the policy of the criminal law to encourage a guilty person to come forward and disclose both the fact of an offence having been committed and confession of guilt of that offence.
The leniency that follows a confession of guilt in the form of a plea of guilty is a well recognised part of the body of principles that cover sentencing. Although less well recognised, because less frequently encountered, the disclosure of an otherwise unknown guilt of an offence merits a significant added element of leniency, the degree of which will vary according to the degree of likelihood of that guilt being discovered by the law enforcement authorities, as well as guilt being established against the person concerned (604).
The statement in Ellis that 'the disclosure of an otherwise unknown guilt of an offence merits a significant added element of leniency' is a statement of a general principle or perhaps more accurately of a factor to be taken into account. It is not the statement of a rule to be quantitatively, rigidly or mechanically applied. It is an indication that, in determining the appropriate sentence, the disclosure of what was an unknown offence is a significant and not an insubstantial matter to be considered on the credit side of the sentencing process. How significant depends on the facts and circumstances of the case [15].
21 Counsel for the appellant did not refer specifically to the offences which it was said were voluntarily disclosed by the appellant but it appears from an examination of the record of interview of the complainant and the appellant respectively that they are counts 1, 3, 5, 6, 7, 8, 9, 11 and 12. On the basis of the complainant's recollection of events at the time of her interview, it is unlikely the appellant would have been indicted on those counts if it had not been for his voluntary disclosure of the offences. The only offences which the complainant recalled in her statement to police were those which were the subject of counts 2, 4 and 10.
22 In this case, however, there is no appeal against any of those individual sentences and it was not submitted that in imposing the sentences in respect of those counts the discretion of the sentencing judge miscarried because he failed to take into account the voluntary disclosures. The appeal is based solely on the totality principle and the case was put on the basis that the voluntary disclosures were relevant to an assessment of the overall criminality of the appellant's conduct. That is, on the basis of their mitigating effect on the total effective sentence. It is convenient to come back to that submission in due course.
23 The maximum penalty for the sexual penetration offences of which the appellant was convicted is 20 years' imprisonment, while that for the indecent dealings is 10 years' imprisonment. It has been said by this court on many occasions that all sexual offences against children are serious. The dominant sentencing principles to be applied in such cases are punishment, general and personal deterrence, and the protection of vulnerable children: The State of Western Australia v Rock [2007] WASCA 121.
24 The court has also frequently pointed out that there is no tariff for sexual offences against children and that detailed examination of other cases of sexual offending which have similarities to the case in question is of limited value. Each case depends on its own facts as the particular circumstances of the offending and of the offender may vary considerably. Nevertheless, bearing in mind the inherent limitations, it is useful to consider what are the usual sentences imposed and what is the range of sentences imposed, as only against that information can a claim that a sentence infringes the totality principle be understood: VIM v The State of Western Australia [2005] WASCA 233; (2005) 31 WAR 1 [301]; Roffey v The State of Western Australia [27].
25 In VIM, the court considered, among other things, a number of decisions handed down between 1999 and 2005 involving frequent or prolonged sexual offending against a child or children (five or more counts) and in which there had been a guilty plea. After adjusting some of the terms to reflect what would have been imposed after the Sentencing Legislation Amendment and Repeal Act 2003 (WA) came into operation, the court concluded [309] that 'lower end' offending incurred terms of up to 2 years 8 months' imprisonment; the most common sentences were approximately 6 years 8 months' imprisonment; and about two-thirds of the sentences would fall within the range 6 years 8 months' imprisonment to 12 years 8 months' imprisonment. The court also observed that the destructive effects of such offending against a child are now better understood and that those effects were particularly evident in cases where sexual offending against the child had been frequent and/or had occurred over a long period. The court went on to say:
It hardly needs to be said that all sexual offending against a child is reprehensible. However, where there is an isolated occurrence, then, depending upon the circumstances, it may well be that, with support, a child will be able to overcome the experience, in the way that other adverse events can be largely overcome. The difference in cases of prolonged offending against a child is that the whole of the victim's childhood and potential for normal development is taken from him or her. When one comes to consider totality considerations, then, a relevant factor is that, as the amount of offending increases, so the likelihood of very significant harm to the victim or victims of the offending is dramatically increased. In the majority of such cases, cumulation of sentences is therefore to be expected, to reflect the increasing severity of effect upon the victim; as well as to reflect the fact that the offender has not simply given way to an impulse on an occasion, but has chosen repeatedly to commit serious offences [294].
26 The conclusions in VIM as to the terms commonly imposed for such offending are obviously and necessarily at a high level of generality and in the context of this appeal it is appropriate to look more closely at some of the subsequent cases involving multiple sexual offences against a lineal relative.
27 In FGC v The State of Western Australia [2008] WASCA 47; (2008) 183 A Crim R 313, the offender was the grandfather of the complainant, who was aged from 5 years to 8 or 9 years of age at the time of the offending. The offences involved two counts of aggravated sexual penetration without consent (penile and digital penetration) and three counts of indecent dealing (touching of the complainant's breasts and vagina), and occurred over a period of three or four years. The offender was convicted after trial. He was of previously good character and approximately 15 years had passed since the last offence had occurred. The offender was sentenced to 6 years' imprisonment. He would be 81 years old before becoming eligible for parole. An appeal against sentence was dismissed.
28 In HAS v The State of Western Australia [2005] WASCA 29, the appellant pleaded guilty to two counts of sexual penetration of a child under 16 years and one count of indecently dealing with a child under 16 years. The appellant was 48 years of age at the time of the offending and the complainant was 13 years of age. The appellant was in the position of stepfather to the complainant. The first count of sexual penetration occurred when the appellant went to the complainant's bedroom, pushed her gently onto the bed, removed parts of her clothing and penetrated her vagina with his penis. She tried to force him off but he held her down. The indecent dealing involved the appellant kissing her breast on the same occasion. The second count of sexual penetration occurred two months later. It was similar in nature to the circumstances of the first count. The appellant said that he loved the complainant and thought she loved him. An appeal against an effective total term of 6 years' imprisonment was dismissed.
29 M v The State of Western Australia [2007] WASCA 238, concerned four offences of indecent dealing and two offences of sexual penetration committed by the offender against his stepdaughter. The offender was in his early 40s and the complaint was aged 14 and 15 years at the time of the offending, which took place over a two year period. The indecent dealing counts involved having the complainant remove her pants and placing a small mirror between her legs and pointing out parts of her genitalia; showing the complainant pornographic magazines and, on the same occasion, exposing his penis and having the complainant place her hand on it; and placing a vibrator on the external area of the complainant's vagina for several minutes. The sexual penetration counts involved one incident of fellatio and one incident of sexual intercourse. The offender was of previously good character. He entered late pleas of guilty. The complainant had lost a year of university education because of the stress suffered as a consequence of the offences and was estranged from her family because her mother had supported the offender. The offender had tried to distance himself from the offences and to minimise his own conduct. An application for leave to appeal against a total effective sentence of 7 years 9 months' imprisonment was dismissed.
30 In F v The State of Western Australia [2008] WASCA 100; (2008) 184 A Crim R 125, the offender was the complainant's de facto father. Over a period of three years the offender committed one offence of indecent dealing and 11 offences of sexual penetration. The offender was aged between 35 and 38 years and the complainant was aged between 12 and 15 years at the time of the offending. The sexual penetration offences encompassed oral, digital and penile penetration. On a number of occasions the appellant's activities caused the complainant to cry but that did not always deter the appellant. The appellant initially denied the offences and told police the complainant was lying. It was not until some months later that he admitted the offences. It was accepted that the appellant suffered from some mental illness but there was little to suggest that this substantially reduced his culpability. The appellant showed limited insight into, or remorse for, his offending. He was sentenced to an effective term of 8 years' imprisonment. An appeal against that sentence was dismissed.
31 In RJB v The State of Western Australia [2009] WASCA 49, the offender pleaded guilty to four counts of sexual penetration and four counts of indecent dealing. He was the de facto father of the complainant, who was aged between 8 and 10 years of age when the offending occurred. The offender was aged from 43 to 46 years. The offences involved four incidents in which the offender placed his penis in the complainant's mouth and manipulated her head while he thrust his penis in and out of her mouth. While doing so he rubbed the complainant's chest. On three occasions a degree of force was used by the offender to force the complainant to open her mouth to allow penetration. The offender was sentenced to a total term of 8 years' imprisonment for the offences. An appeal against the sentence was dismissed.
32 In BPR v The State of Western Australia [No 2] [2007] WASCA 200, the appellant was convicted of one count of sexual penetration of a child under 16 years, one count of sexual penetration of a child under 13 years and five counts of indecent dealing. The offending involved his stepdaughter and two of her friends who were sufficiently close to the appellant to call him 'dad'. The conduct included cunnilingus, touching the vagina, touching the breasts, and exposing the breasts and genitalia of the girls. It extended over a period of between 20 and 34 months and there was an element of grooming of the girls to make them amenable to sexual advances. The offences had the effect that the appellant's stepdaughter was ejected from the family home and put in foster care. The appellant was convicted after trial. In dismissing an appeal against sentence, the court described the total effective sentence of 8 years 4 months' imprisonment as towards the higher end of the range.
33 In KC v The State of Western Australia [2008] WASCA 216, the appellant pleaded guilty to four counts of sexual penetration of a de facto child or lineal relative, three counts of indecently dealing with a child under 14 years, one count of indecently dealing with a child under 13 years and seven counts of indecent dealing with a de facto child or lineal relative. The offences were committed against two of his stepchildren and two of his step-grandchildren. The offences committed against one stepchild occurred when she was between the ages of 5 and 12. They involved the appellant rubbing his penis against her vagina, masturbating in her presence, inserting his penis in her mouth, performing cunnilingus on her and simulating sexual intercourse with her. The offences against the other stepchild began when she was 7 years of age and continued until she was 14. They involved the appellant rubbing her vagina, rubbing his penis against her leg, placing her hand on his penis and rubbing his penis on her neck and face. The offences against the step-grandchildren occurred when they were five years and eight years old respectively and involved the appellant inserting his finger in their vaginas. The total offending occurred over a period of some 17 years and involved some threats and inducements. At least one of the complainants had been unable to maintain a relationship with her mother as the mother continued to support the appellant. An appeal against a total effective sentence of imprisonment of 10 years 8 months' was allowed and the appellant resentenced to a term of 8 years 4 months' imprisonment.
34 In M v The State of Western Australia [2006] WASCA 256, the appellant pleaded guilty to 15 counts of sexual penetration of a de facto child under 16 years, seven counts of indecent dealing with a de facto child under 16 years and three counts of procuring a de facto child under 16 years to engage in sexual behaviour. Those counts were representative of a course of offending occurring approximately every second night over a period of two months. At the time of the offending the appellant was 37 years of age and the complainant was 12 years. The conduct included requiring the complainant to rub his penis, applying baby oil to her vagina, procuring her to rub her vaginal area with a vibrator which he had switched on, and taking another vibrator and inserting it into his own anus. He then masturbated in front of the complainant until he ejaculated. All of that conduct occurred on one occasion. Other counts concerned other occasions involving digital penetration by the appellant of the complainant's vagina, requiring her to digitally penetrate her own vagina, requiring the complainant to penetrate her own vagina with the vibrator, and penetrating the complainant's vagina and anus with either the vibrator or his penis on different occasions. There was also one count each of cunnilingus and fellatio. On some occasions, the appellant engaged in only one of the various acts but on other occasions engaged in a variety of sexual acts within a relatively short space of time. On a number of occasions, the complainant complained of pain. On one of the occasions, the appellant also showed the complainant an R-rated pornographic video. The appellant had been sexually abused as a child. The appellant recognised his offending and had demonstrated remorse. The court dismissed an appeal against a sentence of a total effective term of imprisonment of 10 years, a sentence which it described as 'severe'.
35 Finally, in Truscott v The State of Western Australia [2007] WASCA 62, the appellant was convicted after trial of four counts of penetration of a child under 13, one count of indecent dealing and one count of indecent recording. The offences occurred over a period of a little over two years. The appellant was about 40 years of age and was the complainant's de facto father. The complainant was five or six years of age when the first two offences occurred, involving penile penetration of the complainant's anus, and fellatio. Two further offences of anal penetration occurred when the complainant was seven years old. The other counts related to a pornographic film which the appellant screened in the complainant's presence, and an indecent recording of the complainant made by the appellant. There was nothing to be said by way of mitigation. There was an element of coercion involved and the appellant showed no remorse. An application for leave to appeal against a total effective sentence of 10 years' imprisonment was dismissed.
36 Having canvassed those cases, it is appropriate to reiterate that previous cases do not provide a tariff for offences of such a nature but only guidance of the most general kind, and the focus of attention must be on the particular facts of the case under consideration.
37 In considering the comparable cases, it seems to us there are three features of particular significance in the present case. They are first, the voluntary disclosures made by the appellant as to previously unknown offences; secondly, the early admission of the offences and the remorse shown by the appellant; and thirdly, that the offending (although very serious) took place over a period of something less than 24 hours.
38 All of the offending occurred between the late evening of 20 December 2008 and the afternoon of the following day. It was not, as is commonly the case, spread over months or even years. There is no suggestion that the specific counts with which the appellant was charged were representative of more extensive offending. In her statement to police, the complainant specifically said that there had been no other occasions on which such conduct had occurred.
39 Counsel for the appellant submitted that on the question of the appellant's remorse the court should review the DVD record of the appellant's interview with police. We have done that. It is apparent from that interview that the appellant recognised and accepted his wrongdoing, and that his remorse for his conduct was sincere. The appellant gave a full account of his offending and it was evident that the appellant was anxious to spare the complainant, at the outset, from the trauma that would inevitably be associated with the prospect of having to prepare for and to give evidence at a trial.
40 As we have mentioned, the account which the appellant gave to police included a number of offences which were not referred to in the complainant's statement to police and which are unlikely to have come to light but for the appellant's unprompted admission of them. Indeed they constitute the majority of the offences with which the appellant was charged. That was an important consideration in the sentencing process, although, whilst it is not possible to know the extent to which the complainant's lack of recollection of those offences was due to the effect of the alcohol the appellant provided to her, there can be no doubt it played a part and that must also be taken into account.
41 The fact that the appellant had made voluntary admissions was referred to by counsel for the appellant in his submissions at the hearing on 13 August 2009. It was also mentioned by counsel for the State who acknowledged that but for the appellant's detailed admissions it would have been very difficult for some of the charges to be laid. However, the fact that the appellant had revealed the additional offences was not expressly averted to by the sentencing judge in the course of his sentencing remarks on 20 August 2009. While his Honour noted that the appellant had cooperated with police and made full admissions, the fact that the appellant is likely to have avoided detection and punishment for a number of the offences but for his self-implication was not expressly mentioned. It was a factor of such importance that the failure to refer to it suggests that it was overlooked.
42 It is the case that sexual offences against children will generally warrant a severe penalty. In this case, the appellant's offending was undoubtedly very serious and called for a substantial term of imprisonment. We consider, however, that having regard to the particular circumstances of the case the total effective sentence of 9 years' imprisonment was so severe as to be disproportionate to the overall criminality of the offending.
43 We would allow the appeal. It is then necessary to resentence the appellant. We would not disturb the individual terms of imprisonment on each count imposed by the sentencing judge. In our view, justice would be done by setting aside the orders that the sentences on counts 2 and 12 be served cumulatively and ordering that the sentences on counts 1, 2 and 3 be served cumulatively and that each of the other sentences be served concurrently with those sentences and each other. The total effective term is therefore 7 years' imprisonment. The appellant will remain eligible for parole.
BPR
The State of Western Australia [No 2]
(1997) 189 CLR 295
(1986) 6 NSWLR 603
(2001) 206 CLR 267
(2005) 31 WAR 1
(1994) 14 WAR 341