Criminal law and sentencing - Two offences of sexual penetration without consent - Offender related by marriage to the two victims - Both victims much younger than offender - Total effective sentence 7 years' imprisonment - Whether sentence infringes first limb of the totality principle

Chadd v The State of Western Australia [2013] WASCA 99

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

RDC v The State of Western Australia [2012] WASCA 16

Singh v The State of Western Australia [2017] WASCA 47

The State of Western Australia v Akizuki [2008] WASCA 267; (2008) 192 A Crim R 373

The State of Western Australia v Richards [2008] WASCA 134; (2008) 37 WAR 229

Warburton v The State of Western Australia [2009] WASCA 113

1 The appellant was sentenced to a total effective sentence of 7 years' imprisonment upon his conviction after trial of two counts of sexual penetration without consent. He appeals on the ground that the total effective sentence imposed infringed the first limb of the totality principle.

2 For the reasons that follow, we would dismiss the appeal.

3 The appellant stood trial on an indictment containing four counts of sexual penetration without consent and one of indecent assault. He was convicted of two counts, which were counts 1 and 3 on the indictment.

4 Count 1 alleged that on a date between 17 June 1993 and 31 December 1993 at Armadale, he sexually penetrated CPA without her consent by engaging in cunnilingus. Count 3 alleged that on a date between 16 August 1995 and 5 November 1997 at White Gum Valley, he sexually penetrated KAY without her consent by penetrating her vagina with his penis.

5 He was sentenced to a term of 5 years' imprisonment on count 3. The sentence on count 1 was reduced by 6 months on account of totality considerations to a term of 2 years. The individual sentences were ordered to be served cumulatively. Thus, the total effective sentence was 7 years' imprisonment. A parole eligibility order was made.

6 The appellant is related to CPA by marriage. She called him uncle and stayed at his home as a child. Count 1 occurred in late 1993 when CPA was 16 years old and the appellant was 30 years old or thereabouts.

7 On the evening of the offence CPA was drinking in Northbridge with relatives. She ended up at a relative's place where she went to sleep on the couch. The appellant was at that house drinking. At some point during the night CPA awoke to find the appellant performing cunnilingus on her.

8 She did nothing to encourage the appellant to act in that way. The appellant opportunistically took advantage of CPA sleeping.

9 CPA froze when she awoke to find the appellant performing cunnilingus on her. In any event, she could not move because the appellant's weight was on the lower part of her body. Eventually she was able to push the appellant's head and he moved away. She was then too distressed to sleep.[1]

10 Count 3 occurred when KAY was about 20 years old and the appellant was about 32 years old. Again, the appellant is related to KAY by marriage. They interacted a lot while KAY was growing up. She called him uncle.

11 On the day of the offence KAY had been drinking with some relatives and ended up at the appellant's house. The appellant's wife was not home at the time. The others left the house to go to the shops. KAY stayed at the house and was talking to the appellant.[2]

12 An incident of a sexual nature occurred between the appellant and KAY in the toilet of the house. The appellant was charged and acquitted of an offence in that regard. During the course of the toilet incident the others returned to the house. When KAY exited the toilet she was abused by one of the others. The trial judge sentenced the appellant on the basis that nothing unlawful occurred in the toilet.

13 Following that, the others left the house leaving the appellant and KAY alone at the house. KAY was angry and confronted the appellant. The appellant reacted forcefully by taking her to the bedroom. During the course of the events the appellant pulled her pants down and had sex with her by putting his penis into her vagina. KAY resisted in whatever way she could by trying to rip his hair, scratch his eyes and pinch him. There was a significant disparity in their weights, so her attempts to resist were unsuccessful. She hyperventilated during the event and had difficulty breathing.[3]

14 At the time of the offence, CPA blamed herself for the offence. The victim impact statement from her that was before the trial judge catalogued the significant and ongoing damage done to her by the offence, including psychological and health problems as well as adverse treatment from her community.[4]

15 The victim impact statement of KAY before the trial judge referred to the considerable emotional and mental pain she suffered as a result of the offence against her. She believed that breakdowns in her family relationships and her need for antidepressants were related to the offence.[5]

16 At the time of sentencing, the appellant was 53 years old. He is an Aboriginal man from Central Australia. He had been with his de facto wife for 35 years; they had four children and a number of grandchildren. Character references before the trial judge attested to the appellant as a man from a strong family, committed to his family, a respected member of his community, a cultural leader, a mentor, an active sportsman and a traditional elder.[6]

17 The trial judge found that, apart from these offences, the appellant had led a full and productive life, holding responsible positions in the community and in the workforce.[7] The appellant has not committed other offences, apart from the offences the subject of this appeal.[8]

18 There was a substantial amount of material before the trial judge relating to the appellant's increasing and significant health problems. He has end stage renal disease, presumably secondary to diabetic nephropathy; he has been on haemodialysis three times per week since August 2014. He was worked up for a renal transplant, but his subsequent health problems meant that he was no longer a candidate for that. He has had type 2 diabetes for 20 years; heart disease and had a coronary artery bypass in May 2016. He also has chronic obstructive pulmonary disease and cerebrovascular disease. The judge found that all these diseases were likely to impact on his long term survival.[9] However, there was no evidence as to the extent of the reduction in the appellant's life expectancy.

19 While the trial judge accepted information before him that the appellant's conditions could be treated adequately in a prison environment, the judge found that the appellant's various health conditions would make incarceration more onerous for him than for a person not suffering such conditions.[10]

20 The trial judge identified the following aggravating features of the appellant's offending:

(1) Both offences involved a significant breach of trust, being committed against people who were, by marriage, members of the appellant's family.[11]

(2) There was a significant age disparity between the appellant and the two complainants, namely about 14 years in count 1 and about 12 years in count 2.

(3) Count 3 was further aggravated by the significant force used in relation to it.[12]

21 Counsel for the appellant did not challenge the correctness of any of those findings.

22 The judge referred to the totality principle. As we have explained, the judge reduced the term of imprisonment on count 1 on totality grounds.

23 The single ground of appeal is that the trial judge erred in imposing a total aggregate sentence that was of a length that did not bear a proper relationship to the overall criminality of the appellant's conduct, having regard to all relevant circumstances including those referable to the appellant personally.

25 Leave to appeal was granted.[13] The appellant requires an extension of time. The application for an extension of time was referred to the hearing of the appeal.[14]

26 In support of his contention that the total effective sentence infringed the first limb of the totality principle, the appellant emphasised the following matters:

(a) there was a substantial period of time between when the appellant committed these offences and the time of sentence. In that period, the appellant moved to the Northern Territory where he went through customary law, and became a leader in his community and mentor of young men;

(b) the appellant has had regular employment and has not reoffended in the long period since count 2;

(c) the appellant's health problems reduced his life expectancy and meant that serving time in custody would be more difficult;

(d) the appellant's offences each comprised a single act of penetration without any threat of violence and did not involve any premeditation.[15]

27 The appellant accepts, rightly in our opinion, that comparing this matter to previously decided cases will be of limited utility.[16]

28 The following principles relevant to an appeal on grounds of totality are well established:

(1) Sentencing is a discretionary exercise. An appellate court can intervene only if the appellant demonstrates either an express or implied material error. Express error involves acting on a wrong principle, for example by mistaking the law or facts or taking into account an irrelevant matter. Implied error arises where the end result is so unreasonable or unjust that the court must conclude that a substantial wrong has occurred. Thus, an appellate court cannot substitute its own opinion for that of the sentencing court merely because the appellate court would have exercised a sentencing discretion differently.

(2) The first limb of the totality principle requires that the total effective sentence imposed on an offender who has committed multiple offences must bear a proper relationship to the overall criminality involved in all of the offences (including those, if any, in respect of which the offender is still serving or is yet to serve a term of imprisonment), viewed in their entirety, having regard to all relevant facts and circumstances including those referable to the offender personally (and including, for example, the desirability of accommodating any wish to rehabilitate), all relevant sentencing factors and the total effective sentences imposed in comparable cases.

(3) The range of sentences customarily imposed for a crime does not establish the range of a sound exercise of the sentencing discretion. Sentences customarily imposed in comparable cases provide a yardstick or reference point for ensuring broad consistency in sentencing, bearing in mind the scope for significant variations in relevant sentencing factors, and that there is no single correct sentence. What is important is the unifying principles which sentences imposed in comparable cases reveal and reflect.

(4) When this court dismisses an appeal against sentence and when it resentences on a successful appeal, its decision does not fix the upper or lower limit of the range.

(5) Where there is a challenge on totality grounds, the severity of a sentence imposed on an individual count generally falls to be assessed in light of the sentences imposed in respect of the other counts and its contribution to the total effective sentence. A heavy individual sentence may be softened by an order that it be served concurrently with sentences imposed in relation to the other counts. A relatively light sentence may, as a practical matter, have increased severity if it is ordered to be served cumulatively. The real question is whether the total effective sentence is outside the available sentencing range.

29 There is no tariff for sexual offences because of the enormous range of conduct which can come within the description of the offences and the wide variety of personal circumstances of the offender. The utility of comparable cases in determining questions of totality may, at times, be limited to providing very broad guidance because there will often be significant differences in the circumstances of the offending and the offenders.[17] Nevertheless, it remains appropriate to consider other comparable cases to ensure broad consistency and to avoid sentencing becoming idiosyncratic and arbitrary.[18]

30 After a detailed review of cases of sentencing for sexual offending, Steytler P drew the following conclusions in Akizuki:[19]

As might have been anticipated, this review of the cases reveals that the circumstances of sexual offending, and of sexual offenders, are almost infinitely variable. That, in turn, means that the sentence imposed in one case can provide only very limited guidance in deciding what sentence should be imposed for a similar offence in another case. However, some conclusions can be drawn, as follows:

(1) An average starting point for a case of penile penetration of the vagina without consent, absent circumstances of aggravation, is in the order of 7 years' imprisonment under the former sentencing regime, or around 4 years and 8 months' imprisonment under the transitional regime. That starting point takes no account of any factors in mitigation.

(2) Because the circumstances of sexual offending and sexual offenders are so variable, nothing will be achieved by specifying a range of sentences customarily imposed. The range of potential aggravating features is so huge that features of that kind can either dramatically increase the sentence imposed (bearing in mind that the maximum sentence for an aggravated offence is 20 years' imprisonment: s 326 of the Criminal Code) or have little or no effect on the sentence imposed. The range of potential mitigating factors is at least equally extensive. They might result in a very large reduction in sentence or little or no reduction.

(3) Nor will anything be achieved by specifying a different starting point for each category of sexual penetration without consent. It should not be assumed that one form of sexual penetration is necessarily more, or less, serious than another. As Wheeler JA pointed out in C v The State of Western Australia [2006] WASCA 261 [35], there is no 'hierarchy of sexual penetration'. For example, although digital penetration will ordinarily be less serious than penile penetration, that is not inevitably so. It might, in particular circumstances, be no less serious or even more serious. The seriousness of every offence of unlawful sexual penetration must be determined by its own individual circumstances: C [35] (Wheeler JA); Cavill [266] - [267] (Miller JA).

That seems to me to be about as much guidance as can be obtained from the cases. I appreciate that it is less than sentencing judges might wish. However, that is a necessary consequence of the court's obligation to tailor each sentence to the individual circumstances of the case, having regard for the maximum penalty provided by the legislature and, to the extent that they can be of assistance, sentences customarily imposed in similar circumstances.

31 In a case of penile penetration of the vagina where there is a plea of not guilty, a term of imprisonment of 5 to 6 years would not be unusual.[20] It is important to emphasise that that does not mean that a sentence outside that range is thereby manifestly excessive (or inadequate). The circumstances of offending vary widely. The available maximum sentence must not be overlooked. Sentences well beyond that range may be justified by the circumstances of the case.[21]

32 There is no doubt that the fact that the appellant had, by the time of sentencing, become a respected leader in his community and had not reoffended counted in his favour. But the weight to be given to those considerations must reflect the fact that offences of this nature, involving intrafamilial sexual offences, often go undetected for long periods and, until revealed, do not impact on other people or on their perception of the offender.[22] Moreover, it is not uncommon that offences of this nature are committed by people who are otherwise of good character.

33 We also accept that the other matters to which the appellant points in his submissions weighed in his favour. But, in our view, in circumstances where the appellant was convicted after trial, the serious features of his offending meant that the total effective sentence of 7 years was within the range of an appropriate exercise of discretion.

34 The appellant committed two distinct offences of sexual penetration about two years apart involving two victims. The appellant rightly conceded that some degree of accumulation of the sentences was called for.[23]

35 Both offences were committed against much younger females, both of whom were, by marriage, part of the appellant's family and called him uncle. On each occasion the appellant and the victim were alone in the home of a relative. The victims were entitled to believe that they were in a safe environment. Further, the appellant took advantage of CPA's vulnerability while she was asleep, and took advantage of his greater size and strength to force himself upon KAY. He had unprotected sexual intercourse with KAY, and used force to do so. The offences have caused significant and enduring harm to the two victims.

36 The appellant did not have the mitigatory benefit that pleas of guilty would have provided. The absence of a plea of guilty qualifies the extent to which it can be said that the appellant's rehabilitation was demonstrated by the absence of any reoffending in the years since he committed these offences.

37 In all these circumstances, we are not persuaded that the appellant's total effective sentence of 7 years' imprisonment reveals implied error. To the contrary, in our opinion it was open to the trial judge to conclude that that sentence was a proper reflection of the appellant's criminality, having regard to the maximum penalties, the general sentencing patterns and all the circumstances of the offending and the appellant's personal circumstances. We would dismiss the ground of appeal.

38 For the reasons we have given, we would refuse the application for an extension of time and dismiss the appeal.

[13] Order of Mazza JA 20 January 2017.

[14] Order of Mazza JA 20 January 2017.

[15] Appellant's submissions [12], [14]; appeal ts 2 - 3, 4 - 5.

[17] Chadd v The State of Western Australia [2013] WASCA 99 [45].

[18] The State of Western Australia v Akizuki [2008] WASCA 267; (2008) 192 A Crim R 373 [68] - [69]; GHK v The State of Western Australia [2014] WASCA 19; (2014) 238 A Crim R 178 [122].

[20] The State of Western Australia v Richards [2008] WASCA 134; (2008) 37 WAR 229 [49]; Singh v The State of Western Australia [2017] WASCA 47 [52] .

[21] See, for example, Warburton v The State of Western Australia [2009] WASCA 113 [21]; Singh [52].

[22] RDC v The State of Western Australia [2012] WASCA 16 [23].