Honeybone v The Queen, unreported; CCA SCt of WA; Library No 960430; 7 June 1996

Johnston v The Queen, unreported; CCA SCt of WA; Library No 960153; 22 March 1996

Mesiti v The Queen [1999] WASCA 76

Moulds v The Queen, unreported; CCA SCt of WA; Library No 980147; 4 March 1998

R v Arnold (1991) 56 A Crim R 63

R v CW [2000] WASCA 81

R v Richards [1999] WASCA 105

Wong v The Queen, unreported; CCA SCt of WA; Library No 980218; 2 April 1998

1 MALCOLM CJ: I have read the reasons of Murray J. I agree with those reasons and have nothing to add.

2 KENNEDY J: The facts are set out in the reasons for judgment of Murray J, and there is no necessity for my repeating them at length.

3 The learned sentencing Judge undoubtedly formed a very strong view regarding the applicant's conduct in this matter. The complainant was nine years old at the time, and totally dependent on the applicant as her only parental figure. The applicant's relationship with the complainant's mother had broken down, and the applicant had been left as the sole carer, both of his own daughter from that relationship and of the complainant. He was obviously placed in a position of trust and authority, which he breached.

4 His Honour found that there was clearly a degree of premeditation and purpose about the incident which, in his view, made it a particularly cruel crime. As the learned sentencing Judge noted, the applicant had gone into the complainant's bedroom, removed his own clothing and that of the complainant and sexually penetrated her. The offence involved full penile penetration of the complainant's vagina. He admitted having said to the girl, "This is what sex is all about ra ra ra". In the police interview, the applicant gave details of incidents between himself and the complainant some months prior to the present offence which amounted to indecent assaults. The applicant endeavoured to part open the complainant's legs and to touch her between them. He also admitted kissing her on the lips. The present offence was not, therefore, an isolated incident.

5 The circumstances surrounding the applicant's confession to the police are not entirely clear, but it appears that the complainant was already at the police station at the time when the applicant made his first contact with the police. The Community Corrections officer referred to the applicant's admitting the offence and to his claim that he had confessed to the police so that the complainant could get help. The psychiatrist recorded, however, that the applicant told him that he had no choice but to admit the offence after a friend, towards whom he was then bitter, had reported the matter to the police. This is more consistent with what the applicant told the police in his record of interview.

6 The psychiatric report is much more negative towards the applicant than the reports of the psychologist and of the Community Corrections officer. It would seem that it was upon the psychiatric report that his Honour placed particular reliance. The officer had described the applicant as an emotionally impoverished individual who had a very limited support network. She believed that the applicant was aware of the seriousness of the situation and, whilst he did not wish to discuss the events in detail, this was not seen by her as an attempt to deny his responsibility. She described him as having considerable therapeutic needs, and as one who had a generally non-compliant attitude towards prescribed medications.

7 In his interview with the psychologist, the applicant was said to have acknowledged full responsibility for his offending behaviour, and to have claimed that he had been "consumed" by guilt and disgust and, wanting the matter to be dealt with, had approached the police and confessed to having sexually abused his de facto daughter. He admitted he was drinking excessively and using large quantities of cannabis on a daily basis prior to, and on the day of, his offending behaviour. He told her that the offence had taken place after the applicant had been at a friend's house drinking alcohol and smoking cannabis before returning home. The complainant was said to have been in bed asleep at the time he arrived home. This differs from his statement to the police that, on the evening of the offence, he had been at home drinking.

8 In July 1999, some months after the offence had been committed, the applicant was diagnosed as having substance induced psychosis. The psychologist indicated that the applicant presented as being extremely remorseful for his actions, demonstrated that remorse during interview and was able to identify the harmful effects which his behaviour potentially caused the complainant. However, she considered that his tendency to justify his offending behaviour, his inability to perceive the significance of his life experiences in contributing to this behaviour, and his lack of insight regarding the processes typically involved in offences of this nature gave cause for concern, and she regarded it as imperative that he engage in specialist sex offender treatment in order to address the issues associated with his emotionally impoverished childhood.

9 Although the psychologist assessed the applicant as presenting a low risk of re-offending, she did indicate that, given the possible presence of psychotic tendencies, and the fact that the identified issues which contributed to his offence remained unresolved, the risk he presented might be elevated.

10 The psychiatrist took a significantly different view of the applicant and was extremely critical of him. He referred to the applicant's defiant attitude, when he had indicated that he had spoken about the incident enough, and that he was not going to talk about it any more. He described the applicant throughout his interview as being deceitful when he thought it served his interests to be so, thereby diminishing his responsibility for the offence. He claimed that the applicant had lied to him about a number of matters. According to the psychiatrist, the applicant did not seem to have any remorse regarding the actual crime, but only anger that he had been caught. He found the applicant's explanations for his offence inconsistent and contradictory. In his record of interview, the applicant put his offending down to keeping company with persons who had a bad influence on him. In that interview, he even suggested that he might have been "set up". The psychiatrist suspected that the applicant would repeat the offence in the future if he was intoxicated and if he felt that it was safe to do so.

11 It is clear from the videotaped record of interview, as his Honour indicated, that, although the applicant attempted to describe the incident as having occurred whilst he was under the influence of drink or drugs, there was clearly a degree of premeditation about the offence and that his approach to the police was made at a time, not when he was experiencing feelings of remorse, but when he realised that he had been found out.

12 The learned sentencing Judge carefully considered the relevant factors. Whilst acknowledging that a starting point of 10 years' imprisonment for this offence was at the top end of the scale, and acknowledging that a plea of guilty on the fast track system frequently attracts a reduction of more than 20 per cent, although I might have exercised my discretion in a different manner, I do not consider that this is a case in which I should substitute my own opinion for that of the sentencing Judge, there being, in my opinion, no error of principle identified - see Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665, at 671 - 672. In the circumstances, I would therefore extend the time for bringing the application and grant leave to appeal against the sentence; but I would dismiss the appeal.

13 MURRAY J: The applicant was charged with the offence of sexually penetrating his defacto child, a girl under the age of 16 years. She was 9 years old when the offence was committed in January or February 1999. The offence is defined in the Criminal Code (WA), s 329(2) and is punishable by 20 years imprisonment.

14 It appears that the child did not make a complaint of the offence, but that on 3 March 1999 the applicant voluntarily reported the matter at his local police station. He was interviewed by the police and confessed the commission of the offence. Thereafter, he pleaded guilty in the Court of Petty Sessions and adopted the process of expedited committal provided by the Justices Act 1902 (WA), s 101. He repeated that plea on his first appearance in the District Court on 31 August 1999. On 3 September 1999 the applicant was sentenced to 8 years imprisonment with eligibility for parole.

15 The application for leave to appeal against the sentence was made on 1 October 1999, a week out of time. This Court extended time to permit the application to be heard. The application proceeded on amended grounds which amply particularised the two central propositions advanced by the applicant that, although he accepted that a term of imprisonment to be immediately served would be imposed upon him, that which was imposed was too long in all the circumstances of the case and in addition, that the sentence imposed revealed that insufficient credit was given for the remorse demonstrated, in particular by the fast track plea of guilty.

16 The background to the case was that the applicant had a relationship of relatively short duration with the victim's mother, during which she had a child by the applicant. Two or three years before the offence was committed the woman left the relationship, leaving her then two very young daughters in the care of the applicant. He undertook that care and according to his parents, who wrote to the court, he did a good job as the girls' sole carer in what his parents described as "difficult circumstances".

17 Their letter revealed that the girls are now living with them. Both girls miss their father and according to their grandparents, would be punished more than the applicant by his imprisonment. Nonetheless, there is, in my opinion rightly, no suggestion that the offence committed was other than so serious that it demanded the punishment of imprisonment to be immediately served and there was no capacity to do more than to endeavour to minimise the hurt that would be suffered by the children whilst ensuring that the sentence imposed was duly proportionate to the applicant's criminal culpability: cf Hodder v The Queen (1995) 15 WAR 264.

18 As to the offence itself, there is no doubt that the applicant's judgment was affected by the earlier consumption of alcohol and smoking of cannabis at a neighbour's home, after which the applicant returned home and awoke the complainant before removing the child's clothing and his own. He then had sexual intercourse with her, removing his penis from her vagina only at the point of ejaculation. Prior to that time, during the previous months, there had been some inappropriate touching of the child and the applicant had kissed her on the lips, again in a sexual manner. When the applicant returned to his home in an aroused state on the night in question, he considered whether or not to commit the offence and decided to do so because he thought it would not be discovered. While penetrating the child he said to her, "This is what sex is all about." The applicant said to the investigating police officers during his interview that he had lost control of himself. It is clear that he knew that what he was doing was not only against the law, but morally quite wrong.

19 The sentencing Judge described the offence as "a particularly cruel incident" and his Honour remarked, not only upon the fact that there was full penile penetration, but that the child was a young vulnerable person in his care. The abuse of trust involved in the offence made it particularly serious and was the feature of the case which particularly called for substantial punishment: Woods v The Queen (1995) 14 WAR 341, 354. Nonetheless, it was to be remembered that, apart from the force used in the commission of the offence, there was no suggestion that violence or threats were employed to obtain the victim's submission and, although the offence was committed following a period during which it appears that the applicant behaved in an inappropriate manner, carrying sexual overtones, towards the child, there was no suggestion that the offence was part of a relevant course of conduct or that there was any substantial sexual abuse of the child over a period of time.

20 The applicant had a relatively minor criminal history and there was no suggestion of sexual offending against this or any other child. When he was sentenced by the court he was 32 years of age and capable of obtaining employment, which he had given up when his defacto wife left him so that he could care for the children.

21 There is some suggestion that the applicant went to the police because he thought that another adult male in the house had observed his behaviour and the matter had already been reported to the police, and yet it remains clear that the applicant was extremely remorseful for the offence he had committed. This he made clear not only by the timely making of the plea of guilty and the adoption of the process of fast track committal following the making of a full confession to the police, but also by seeking counselling and treatment.

22 The investigating police reported to the court, and the applicant's counsel confirmed, that he had approached the Department of Family and Children's' Services and had sought sex offender counselling and treatment for both the victim and himself. He was also reported to the court to have sought treatment for his drug and alcohol dependence through Bridge House, and he was said to have entirely abstained from the use of alcohol and drugs since the commission of the offence. The court had the advantage of a pre-sentence report, psychological report and psychiatric report.

23 The most negative of these was the psychiatric report which expressed the view that although the applicant clearly needed to attend a sex offender's treatment programme, "its effectiveness in this case is debatable." It was accepted that the applicant did not have a psychiatric condition, but what was described as an antisocial personality disorder. The psychiatrist thought that he had no "true remorse" for the offence committed and he said:

"I suspect that he will repeat the offence in the future if he feels that it is safe to do so and if he is intoxicated. He has no desire to cease his alcohol or cannabis consumption and the restriction in terms of usage at the present time is related to lack of money."

24 On the other hand, the reporting psychologist was encouraged by the applicant's acknowledgment of responsibility for his offending behaviour, although she noted that he tended to minimise his responsibility by reference to his overconsumption of alcohol and cannabis. Nonetheless, she thought the applicant was extremely remorseful for his actions and that he "demonstrated an understanding of the potential harm he caused his victim." She thought there was evidence of drug induced psychosis, but nonetheless thought his acceptance of responsibility for the offence indicated that he was "tentatively suitable to engage in a sex offender treatment programme". She thought there was a low risk of re-offending assuming that psychological issues arising from his childhood and "cognitive distortions" about his defacto daughter were addressed. The author of the pre-sentence report referred to the applicant's "considerable therapeutic needs" which, the officer thought, could not be addressed in the community but, if dealt with in custody, would reduce the risk "to family members".

25 The picture which emerges is of a need to deal with significant personality problems, substance abuse problems and sex offender treatment issues. It was to the applicant's credit that he had sought himself to deal with such issues, attempted to get counselling for the victim of the offence and sought to minimise the harm done to her. At the time of sentencing, he remained willing to deal with the personal problems which were evidently related to the commission of the offence. It seems that there was evidence of the applicant's contrition and that he was serious about dealing with the issues which had caused him to offend.

26 The sentencing Judge commented that he had read the reports and he referred briefly to the applicant's "significant personality defects." But his Honour made no other reference to the matters discussed above. When passing sentence he said that he would reduce the sentence he originally proposed, a term of 10 years imprisonment, to one of 8 years imprisonment by reason of the plea of guilty on the fast track system, the effect of which had been "to save this poor child any further trauma."

27 In support of the argument that the sentence imposed was manifestly excessive, counsel for the applicant referred to a number of other cases. I do not propose to discuss them. It is notorious that in respect of sexual offences the idea that there may be a tariff for sentencing purposes is not only elusive, but illusory. Such cases commonly reveal significant differences one from the other, both in respect of the nature of the offending and the personal circumstances of the offender. In such cases the proper exercise of sentencing discretion will involve a willingness on the part of the court to properly reflect all relevant matters in the imposition of a sentence proportionate to the criminality involved rather than an endeavour to search out the place occupied by the case within a range of commonly imposed sentences: R v Podirsky (1989) 43 A Crim R 404; R v Pinder (1992) 8 WAR 19.

28 But it is accepted, particularly where the offence involves a sexual assault upon a young child within a family, that a paramount consideration will be the punishment of the offender and the imposition of a sentence having appropriate qualities of general and particular deterrence in the attempt to mark the seriousness with which the commission of the offence is viewed by the court and in an endeavour to secure a degree of protection for children from this and like minded offenders. Such matters were discussed at length in Woods where it was made clear that personal circumstances, as I think existed here, such as relatively good antecedents, contrition, an apparently serious attempt to achieve the offender's rehabilitation and the like, have diminished mitigatory power. Nonetheless, for an offence of this kind, as for every offence, the proper discharge of the sentencing discretion will be the achievement of a sentence which is duly proportionate to the criminality of the conduct involved, having regard not only to the circumstances of the commission of the offence, but also to the circumstances applicable to the offender.

29 The early plea of guilty, particularly involving the fast track, is, of course, a matter which separately operates in mitigation of punishment for many reasons, which need not be discussed in detail here. That this is a mitigating factor is made apparent by the Sentencing Act 1995 (WA), s 8(2). It is recognised that the making of an early plea is of particular importance in cases such as this for the reason given by the sentencing Judge in this case. It resolves at an early stage the outcome of the criminal proceedings and reduces substantially the traumatic effect of those proceedings upon the innocent victim of the offence. Such pleas should be encouraged and that will be done effectively by rewarding them when made: Trescuri v The Queen [1999] WASCA 172; 10 September 1999. Again, there is no tariff in respect of the discount which should be given. It remains very much a matter for the exercise of discretion having regard to the circumstances of the particular case: Verschuren v The Queen (1995) 17 WAR 467, 469, 476.

30 Having regard to all the above matters it seems to me that the grounds of this application are made out. I would grant leave and allow the appeal. I would quash the sentence of 8 years imprisonment imposed and substitute a sentence of 6 years imprisonment with eligibility for parole.

31 I consider that such a sentence would be an appropriately proportionate response, having regard to the nature of the offence and the circumstances of the offender. It seems to me that the sentence of 8 years imprisonment was excessive because although the offence in question was of the serious character described above, there was only a single offence, albeit following a period of inappropriate behaviour with sexual overtones evidencing some premeditation. There was a need for substantial punishment, but in my opinion the court could not overlook that the offence appeared to be out of character, that the antecedents of the applicant were not unfavourable, that he reported the offence and confessed, sought treatment for himself and the child, and showed clear evidence of both contrition and a willingness to take steps which would be calculated to reduce the risk of the commission in future of offences of this kind. The making of the early plea of guilty was a part of that process and it was a process which was to be encouraged by a reduction in the sentence which would otherwise have been appropriate.