Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA

Criminal law - Appeal against sentence - Indecent dealing with a child under the age of 14 - Unlawful carnal knowledge and attempted unlawful carnal knowledge of a child under the age of 13 - Indecent dealing with a child over the age of 13 and under the age of 16 - Historical offences against appellant's adopted child and niece - Total effective sentence of 8 years 9 months' imprisonment

Criminal Code (WA), s 183 (repealed), s 185 (repealed), s 321(4)

Braham v The Queen [1994] NTCCA 60; (1994) 73 A Crim R 353; (1994) 116 FLR 38

Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321

ERA v The State of Western Australia [2013] WASCA 163

GHK v The State of Western Australia [2014] WASCA 19; (2014) 238 A Crim R 178

Holyoak v The Queen (1995) 82 A Crim R 502

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

Kelly v The State of Western Australia [2013] WASCA 200

Lim v The State of Western Australia [2010] WASCA 186

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

Mallet v Mallet [1984] HCA 21; (1984) 156 CLR 605

NHT v The State of Western Australia [2016] WASCA 102

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

Roffey v The State of Western Australia [2007] WASCA 246

Scook v The State of Western Australia [2008] WASCA 114; (2008) 185 A Crim R 164

Smith v The Queen (Unreported, WASCA, Library No 940285, 2 May 1994)

The State of Western Australia v FJG [2012] WASCA 206

The State of Western Australia v PJW [2015] WASCA 113

The State of Western Australia v Prince [2011] WASCA 22

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

1 The appellant appeals against a total effective sentence of 8 years 9 months' imprisonment imposed on 21 October 2015. The sentence relates to:

1. seven sexual offences against his adopted daughter, A, committed between 1977 and 1982 when she was 8 - 12 years old, and
2. one sexual offence against his niece, N, committed in 2003 when she was 15 years old.

The appellant was convicted of those offences after trial in 2015.

2 The appellant also appealed against those convictions. Earlier this year, this court dismissed the conviction appeal.[1]

3 The appellant's sole ground of appeal against sentence is that the sentencing judge erred in imposing a total sentence disproportionate to the overall criminality, having regard to the circumstances of the offending, his personal circumstances and sentencing standards. The appellant was granted leave to appeal on that ground on 12 April 2016.

4 For the following reasons, the appeal against sentence must be dismissed.

5 The sentencing judge made the following findings in relation to the circumstances in which the offences were committed.

6 A was born in 1969. A's mother, L, separated from A's biological father before A's birth. Soon after A was born, L entered into a relationship with the appellant, who had recently arrived in Australia from Lebanon. The appellant married L in 1970, and took on the role of A's father. The appellant formally adopted A shortly before she turned 11 years old.

7 Until she was 16 years old, A believed that the appellant was her biological father.

8 The appellant and L had three daughters, born in 1975, 1977 and 1979. In 1977, just prior to A's 8th birthday, the appellant purchased a house in Forrestfield for the family to live in. At about this time, the appellant started an automotive repair and panel beating business.

9 At some point after moving into the Forrestfield house, the appellant changed his attitude to his Muslim faith. The appellant began to insist that A and her eldest sibling speak Arabic in the house. He started to send them to an Islamic school on Sundays. The appellant restricted the people who they were permitted to socialise with, most particularly boys, and in this way the appellant isolated them to some extent. At some point the appellant made them wear headscarves to their local public school. As well as imposing religious beliefs on his children, the appellant was a strict and harsh disciplinarian. The appellant readily resorted to using physical punishment on both daughters for breaching the rules that he imposed on the household. The appellant became a domineering and controlling husband and father, of whom A was scared.

10 The appellant's behaviour ultimately resulted in L leaving the family home in around 1980 or 1981 when A was 11 or 12 years of age. The appellant's three daughters were sent to live in New South Wales with his mother. A continued to live in the Forrestfield house until she moved to New South Wales to live with her maternal grandparents when she was about 13 years old.

11 This offence occurred when A was lying under the covers with her parents in their bed at the Forrestfield house. A was about 8 or 9 years old. The appellant put his hands inside A's underwear and touched her for a brief period of time on her clitoral area. A was uncertain and confused about what was happening and did not say anything.

12 This offence also occurred when A was 8 or 9 years of age, when the appellant was driving A home at night-time. The appellant drove the car to a remote dirt track location, and stopped the car. He pulled down his pants and made A masturbate his erect penis before pushing her head down on to his penis and requiring her to perform fellatio on him. It was the latter conduct which constituted the indecent dealing offence. The incident ended when the appellant was disturbed by another car, and he did not ejaculate.

13 This offence occurred when A was 8 - 10 years old, when the appellant was in the shower with A at the Forrestfield house. It was not uncommon for the appellant to shower with A. On this occasion, the appellant kissed A, moved his hands over her chest area and pushed his erect penis up against her vaginal area.

14 This offence also occurred when A was 8 - 10 years old, when the appellant and A were swimming in a pool at a party or barbeque at someone else's house. While no one else was present, and A was hanging onto the appellant with her legs wrapped around his waist, he inserted his penis into her vagina. The sentencing judge found that penetration was minimal and of relatively brief duration.

Count 5 - indecent dealing in the appellant's bed

15 This offence occurred when A was 11 or 12 years old, at a time when only she and the appellant were living in the Forrestfield house. The appellant sat on the side of his bed with his pants down and started masturbating himself. He took A's hand and started moving it up and down his penis so she was masturbating him. As he did this, the appellant told A that this would help her when she was older and he was teaching her. A masturbated the appellant to ejaculation.

Count 6 - attempted unlawful carnal knowledge at auto repair business

16 This count occurred when A was 11 or 12 years old, and accompanied the appellant to his auto repair business premises. The appellant took A into a locked office area, removed his overalls and underpants and either removed or instructed A to remove A's clothing below her waist. He pushed his erect penis up against A's vagina in an attempt to insert it into her vagina, and rubbed his penis up and down on A's vagina. While he did this for a period of time, the appellant was not able to achieve penetration.

Count 7 - attempted unlawful carnal knowledge in the appellant's bed

17 This count occurred when A was 11 or 12 years old, when only A and the appellant were living in the Forrestfield house. A and the appellant were in his bed. A had nothing on at least from the waist down. The appellant was naked with an erect penis. The appellant got on top of A and pushed his penis up against A's vagina, in an unsuccessful attempt to insert it into her vagina.

18 The sentencing judge was not satisfied beyond reasonable doubt that the appellant had committed any uncharged offences against A. He sentenced the appellant on the basis that the seven offences of which the appellant had been convicted were the only offences that he committed against her.

Count 8 - indecent dealing with the appellant's niece

19 Count 8 related to a different victim, N, who was the appellant's niece by marriage to his second wife. The offence occurred in late 2003, when N was 15, as she was walking to a train station on her way home from school.

20 The appellant was driving by the train station, and offered N a lift home. Instead of driving N directly home, the appellant drove to a nearby street and stopped the car. While he was driving, the appellant had his left hand on N's right leg. She was wearing shorts at this time. On stopping the car, the appellant grabbed N and kissed her on the lips. She pulled away. The appellant told N that he had always found her beautiful and that, if he was 20 years younger, he would have married her. The appellant again kissed N on the lips. The appellant drove N home after she said that she would tell her father what had occurred if the appellant did not do so.

The sentencing judge's approach Seriousness of the offending against A

21 The sentencing judge identified the following factors which aggravated the seriousness of the offences against A:

1. The offences were committed over four to five years, and could not be seen as some sort of short-term temporary lapse of reason or judgment.
2. A number of offences were committed while A was a very young girl, well under the age of 13, and there was a significant disparity in age between A and the appellant.
3. A did not know that the appellant was not her biological father at the time the offences were committed, and he was for all intents and purposes her father. The offences were a terrible breach of the position of trust that the appellant held in relation to her.
4. The offences were also a terrible breach of the trust that A's mother, L, had placed in the appellant to act as a father to her daughter in just the same way as he was a father to his biological daughters.
5. A, being so young and so completely under the appellant's control, was particularly vulnerable and completely unable to protect herself, particularly when the appellant was the only person living in the Forrestfield house with A.
6. The indecent dealing offences fell towards the upper end of the scale of seriousness of indecent dealing offences, particularly in relation to the fellatio incident which was the subject of count 2.
7. The indecent dealing offences which were the subject of counts 2 and 3 were accompanied by other significant sexual activity (masturbation in the case of count 2 and kissing and rubbing of the chest area in count 3). While the sentencing judge had previously identified the kissing and rubbing of the chest area as part of the conduct charged in count 3, nothing turns on this in the appeal.
8. The offending had, not surprisingly, a significant and ongoing adverse impact on A.

22 The sentencing judge said that these aggravating factors revealed that the appellant's conduct in committing the inherently serious offences against A demonstrated a high degree of culpability.

23 The sentencing judge regarded the offence against N as serious, although less serious than the offences committed against A. The appellant abused the trust that N placed in him as her uncle by agreeing to accept his offer of a lift. The seriousness of the appellant's conduct was also aggravated by its persistence, with the appellant kissing N after she rejected his first advance.

24 The sentencing judge noted that the appellant was 68 years old at the time of sentence, and migrated to Australia from Lebanon. He had a good relationship with his family members and a normal childhood.

25 The appellant had three marriages, the first being to L and the second to a woman he married shortly after divorcing L. The appellant and his second wife had eight children. The appellant's marriage to his second wife ended in 2010. He married his third and current wife, who he met while living in Indonesia, in 2015.

26 The sentencing judge found that the appellant had been in constant employment for all of his working life, until retiring in 2008 or 2009. The sentencing judge took account of the fact that the appellant had been a productive and hardworking member of the community during the course of his life in Australia.

27 The sentencing judge noted that the appellant self-reported cardiac issues, high blood pressure, arthritis and bowel problems. He had no other information concerning the appellant's medical conditions, or which indicated that the appellant's conditions could not be adequately managed in prison. The appellant did not have any mental health issues or engage in substance abuse.

28 The sentencing judge also noted that the appellant did not have any other relevant convictions, that there was a 22-year gap between the offences against A and the offence against N and that the appellant remained offence-free since committing the offence against N.

29 The sentencing judge accepted that the appellant's plea of not guilty, and maintaining his innocence of the offences, were not aggravating factors but meant that the appellant did not have the significant mitigatory benefit of a plea of guilty, remorse and acceptance of responsibility. Further, the appellant's continued refusal to accept responsibility for his offending made it unlikely that any programmatic intervention aimed at addressing the factors which led to his offending would prove useful. While it was difficult to avoid the conclusion that the appellant was at some risk of reoffending as things stood, any such risk was not particularly significant.

30 The sentencing judge referred to character references from three of the appellant's children and a niece. He found that the appellant is a strict and very religious father who went to considerable lengths to instil Islamic values into his children. The appellant had been a supportive and caring father to a number of his children and a positive influence on them and their extended families. The sentencing judge found that the appellant was a good grandfather who would not offend against young female girls who are biologically related to him. He noted that A and N were not biologically related to the appellant. The sentencing judge found that prior to committing the offences the appellant had been a man of good character, and that he had a number of good characteristics.

31 The sentencing judge referred to the principles relating to the relevance of delay set out in Scook v The State of Western Australia.[2] He noted that A first made a complaint to New South Wales Police in 1991, but decided that she did not want to proceed with the complaint. No prosecution was commenced at that time. A 'renewed' her complaint in 2008 and, over the next two years, provided a more detailed statement at a pace consistent with her commitments and wellbeing. The matter was handed over to Western Australia Police, who interviewed the appellant in August 2012, and he was charged later in that year.

32 The charges laid in 2012 were discontinued 'due to some technicality', following which the appellant moved to live in Indonesia where he met and married his current wife. The appellant was advised in 2014 that the police wanted to re-charge him with the offences, and he agreed to return to Australia to face those charges.

33 The sentencing judge noted that there was nothing to suggest that, during the years between the commission of the offences and the laying of charges in 2012, the appellant suffered from any significant stress as a result of the delay in being charged. He found that, once the 2012 charges were discontinued, the appellant altered his affairs in the belief that he was not going to be charged by moving to Indonesia and remarrying. The sentencing judge considered that the additional delay after 2012 had some limited mitigatory value. The sentencing judge also gave the appellant some credit for voluntarily returning to Australia, knowing that he was going to be charged.

34 The sentencing judge referred to the need to impose a sentence that is capable of acting as a deterrent to others who may engage in the relevant conduct, and that as a consequence less weight must be given to mitigating circumstances that are personal to the appellant. He concluded that the seriousness of the offences was such that a term of immediate imprisonment was the only appropriate sentence.

35 The sentencing judge recognised that the total sentence he imposed must be proportionate to the overall criminality involved, having regard to all relevant circumstances including those referable to the appellant personally.

36 The sentencing judge also recognised that the sentence imposed must not be crushing, in the sense that it would destroy any reasonable expectation of a useful life after release from custody. The sentencing judge found no evidence to suggest that, if given a sentence of a length appropriate to his overall criminality, the appellant would die in gaol or be released in such a state as to have no reasonable expectation of a useful life. While the sentencing judge took account of the appellant's age, he did not regard it as something that justified a lesser sentence in order to avoid the sentence being crushing.

37 The sentencing judge imposed the following sentences, resulting in a total effective sentence of 8 years 9 months' imprisonment.

Indecent dealing with child under 14 (touching outside of vagina)

Indecent dealing with child under 14 (inserting penis into mouth)

Indecent dealing with child under 14 (rubbing penis against body)

Indecent dealing with child under 14 (making child masturbate him)

Attempted unlawful carnal knowledge of child under 13

Attempted unlawful carnal knowledge of child under 13

Indecent dealing with child between 13 and 16 (kissing)

38 The appellant was made eligible for parole. The head sentence was backdated to commence on 11 September 2015 to take account of time spent in custody on remand.

39 The appellant's sole ground of appeal against sentence is that the sentencing judge erred in imposing a total sentence disproportionate to the overall criminality, having regard to the circumstances of the offending, his personal circumstances and sentencing standards. This ground of appeal in terms invokes the first limb of the totality principle of sentencing. However, in oral submissions counsel for the appellant sought to rely on the second limb of the totality principle. I will treat the ground as alleging a breach of both limbs of the totality principle. There is no unfairness to the respondent, which has provided comprehensive submissions on the issue, in doing so.

40 The totality principle was summarised by McLure JA, with whom Steytler P and Miller JA agreed, in Roffey v The State of Western Australia:[3]

The legal principles relevant to the disposition of this appeal are not in dispute. 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.

The appellant relies on the totality principle which comprises two limbs. The first limb is that the 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 second limb is that the court should not impose a 'crushing' sentence. The word crushing in this context connotes the destruction of any reasonable expectation of a useful life after release: Martino v The State of Western Australia [2006] WASCA 78 [16]. An aggregate sentence may be inappropriately long under the first limb even if it cannot be described as crushing: Jarvis v The Queen (1998) 20 WAR 201, 216 (Anderson J).

The practical effect of the totality principle is ordinarily to arrive at an aggregate sentence that is less than that which would be arrived at by simply adding up all the terms appropriate for the individual offences: R v Holder [1983] 3 NSWLR 245, 260 (Street CJ). A rationale for the totality principle is that there is assumed rehabilitation and reduced demand for retribution after the initial sentences have been served. Where the principle of totality comes into effect, it is of little importance how the ultimate aggregate is made up: R v Holder (260).

41 The appellant submits that the sentencing judge should have had greater regard to the fact that, in relation to seven of the eight counts, he was a 'first offender' and that he had not been convicted of any offence when he committed the offence against N. The appellant says that the overall criminality of his offending is reduced due to his personal mitigating circumstances and his general good character.

42 The appellant also submits that his 'advanced age' of 68 years was a significant mitigating factor on the basis that the sentence would have a greater effect on him and he may not live to be released.[4]

1. The State of Western Australia v PJW[5] (where a total effective sentence of 9 years' imprisonment was imposed on a successful State appeal in respect of 9 counts of child sex offending);
2. M v The State of Western Australia[6] (where a total effective sentence of 7 years 9 months' imprisonment was upheld in respect of serious sexual offences against a step-daughter committed over a 2-year period); and
3. RNN v The State of Western Australia[7] (where a total effective sentence of 5 years' imprisonment was upheld in respect of 24 offences against three nephews committed over 10 years by an offender who was 70 years old at the time of sentence).

44 The appellant submits that each of these cases can be distinguished from his case, and that the sentence upheld in RNN was substantially less than his. He submits that the total effective sentence of 8 years 9 months' imprisonment is disproportionate to his overall criminality having regard to general sentencing standards, his personal circumstances and the various mitigating factors applicable to him. The appellant also submitted that, at the age of 68, the effect of the sentence imposed upon him was properly described as crushing.

Disposition of appeal First limb of the totality principle

45 The offences against A, considered together, were objectively serious examples of the offences of which the appellant was convicted. The intrusiveness of the conduct, particularly that involving fellatio and attempted penetration of A's vagina with the appellant's penis, was significant and sustained. The appellant was about 22 years older than A, who understood him to be her father. He was in a position of trust and authority. Although violence was not employed, there was a strong element of coercion involved in the offences given the appellant's authority as A's father, the domineering role he assumed as a strict disciplinarian who resorted readily to physical punishment, and the fact that he physically imposed himself upon her. Particularly when A was living alone with the appellant in the Forrestfield house, the appellant took advantage of her vulnerability when she totally depended on him for care and protection. A number of offences occurred when A was a very young child aged 8 - 10.

46 The offences occurred on seven occasions over a period of about 5 years. While the sentencing judge was not satisfied that the appellant had committed any uncharged offences against A, the number of offences, and the period over which they were committed, demonstrate that the offending was not isolated or out of character for the appellant. The appellant was not remorseful and has not taken any steps to reduce the future risk which he poses to the community. The commission of the offences had an obvious and predictable adverse impact on A's life.

47 The offence against N, while less serious than those committed against A, nevertheless showed that the appellant remained willing to act on his sexual interest in children after a considerable period of time. When he was aged 56, he again breached the trust others had placed in him by offending against his 15-year-old niece.

48 While the appellant otherwise presented as a person of good character, the primary sentencing considerations in cases of sexual abuse against children are personal deterrence, general deterrence and punishment of the offender. In the case of intra-familial sexual abuse, matters personal to the offender are of less mitigatory weight than might otherwise be the case. The fact that an offender is otherwise of good character has only little weight because the offences are of a kind which, until revealed, generally do not impinge on other people or their perception of the offender.[8]

49 There is no tariff for sexual offences, and the sentence to be imposed in a particular case depends on its individual facts and circumstances, after having regard to the maximum available penalties. It is nevertheless important, in deciding whether a particular sentence infringes the totality principle, to appreciate what sentences are customarily imposed in cases involving similar offending.[9]

50 Sentences for the commission of multiple sexual offences against children were reviewed in VIM v The State of Western Australia,[10] The State of Western Australia v Prince,[11] ERA v The State of Western Australia[12] and GHK v The State of Western Australia.[13] It is unnecessary to repeat the detail of that analysis here. Having regard to the all of the circumstances of the present case and the previous authorities, the total effective sentence imposed in the present case is broadly consistent with the sentences customarily imposed for offences of this type.

51 The three cases on which the appellant relies do not show the total effective sentence imposed on the appellant to stand outside a sound discretionary range. The sentences imposed on PJW and M are consistent with the total effective sentence in the present case, having regard to all of the features of each case. The 5-year total effective sentence imposed in RNN was less than the present case but, in contrast to the appellant, the offender in RNN (who was of similar age to the appellant) pleaded guilty, expressed remorse, cooperated with police and had not reoffended in the 34 years after the commission of his last offence. In any event, a departure from the customary standards of sentencing is not established by pointing to a case in which this court declined to interfere with a lesser sentence.

52 Having regard to all the circumstances of the offences and appellant, and all relevant sentencing principles, a total effective sentence of 8 years 9 months' imprisonment bears a proper relationship to the overall criminality involved in all the offences of which the appellant was convicted.

53 There is no merit in the appellant's submission that the sentencing judge failed to have sufficient regard to the appellant's age or absence of criminal record. The sentencing judge's reasons show that he took account of those matters, and it is established that giving inadequate or excessive weight to a relevant sentencing consideration will only constitute an express appealable error if it amounts to a failure to exercise the sentencing discretion.[14]

54 The sentencing judge referred to the fact that the appellant was not a 'first offender' at the time of committing his offence against N, but took account of the gap between the commission of the offences against A and N and the time since offending against N during which the appellant had remained offence-free (ts 513). There was no error in that approach.

55 The appellant submitted that the passage of time and the appellant's age reduced the significance of general deterrence as a sentencing consideration. We do not accept that submission. General deterrence remained an important sentencing consideration in this case for the reason explained by Mazza JA, with whom McLure P and Buss JA agreed, in The State of Western Australia v FJG:[15]

It is not uncommon in cases of serious intra-familial sexual offending for it to remain a secret for a long time. Often the offenders have gone on with their lives in a way which has not adversely affected them. Frequently for the victims, the story is altogether different. Those who offend in this way must realise that their wrongdoing can lead to long terms of imprisonment even when they are old and believe that what was in the past will stay there.

56 The sentencing judge made the following findings of fact, which counsel for the appellant did not challenge in the appeal:

Moreover, there is no medical evidence before me to suggest that your state of health will rapidly worsen while you're in prison, nor is there anything to suggest that if you are given a sentence of a length appropriate to your overall criminality you are likely to die in gaol or be released in such a state that you would have no reasonable expectation of a useful life after release (ts 520).

57 Those findings were made in a context where the trial judge had previously noted that there was no material before him to indicate that the health conditions which the appellant reported to a community corrections officer will not be able to be adequately managed in prison (ts 512).

58 These unchallenged findings of fact are inconsistent with the appellant's submission that the length of the term imposed by the sentencing judge was crushing, in the sense that term is used in Roffey, so as to infringe the second limb of the totality principle.

59 For these reasons, the appeal should be dismissed.

[1] NHT v The State of Western Australia [2016] WASCA 102.

[2] Scook v The State of Western Australia [2008] WASCA 114; (2008) 185 A Crim R 164 [16] - [33], [57] - [66].

[3] Roffey v The State of Western Australia [2007] WASCA 246 [23] - [26].

[4] Citing Braham v The Queen [1994] NTCCA 60; (1994) 73 A Crim R 353; (1994) 116 FLR 38, 356; Smith v The Queen (Unreported, WASCA, Library No 940285, 2 May 1994) and Holyoak v The Queen (1995) 82 A Crim R 502, 507 - 508.

[5] The State of Western Australia v PJW [2015] WASCA 113.

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

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

[8] RNN [51]; KC v The State of Western Australia [2008] WASCA 216 [38].

[9] Lim v The State of Western Australia [2010] WASCA 186 [41].

[10] VIM v The State of Western Australia [2005] WASCA 233; (2005) 31 WAR 1 [287] - [315].

[11] The State of Western Australia v Prince [2011] WASCA 22 [20].

[12] ERA v The State of Western Australia [2013] WASCA 163 [96] - [118], [123] - [128].

[13] GHK v The State of Western Australia [2014] WASCA 19; (2014) 238 A Crim R 178 [17] - [18], [33].

[14] Mallet v Mallet [1984] HCA 21; (1984) 156 CLR 605, 614; Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321 [26]; Kelly v The State of Western Australia [2013] WASCA 200 [58].

[15] The State of Western Australia v FJG [2012] WASCA 206 [71].