Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA

Criminal law - Persistently engaged in sexual conduct with a child under 16 years - Application for leave to appeal against sentence - Manifest excess

Criminal Appeals Act 2004 (WA), s 27

Sentencing Act 1995 (WA), s 9AA

CJ v The State of Western Australia [2009] WASCA 42

D v The State of Western Australia [2009] WASCA 155

Deering v The State of Western Australia [2007] WASCA 212

Gavenlock v The State of Western Australia [2014] WASCA 36

JAF v The State of Western Australia [2008] WASCA 231; (2008) 190 A Crim R 124

Poulton v The State of Western Australia [2008] WASCA 97

The State of Western Australia v Rock [2007] WASCA 121

The State of Western Australia v SJH [2010] WASCA 40; (2010) 200 A Crim R 228

1 REASONS OF THE COURT: This is an application for leave to appeal against sentence.

2 The appellant pleaded guilty in the District Court to an offence that, between 1 January 2009 and 22 October 2010, he persistently engaged in sexual conduct with E, a child under the age of 16 years, contrary to s 321A(4) of the Criminal Code (WA). The maximum penalty for this offence is 20 years' imprisonment.

3 On 13 May 2015, Staude DCJ sentenced the appellant to 5 years' immediate imprisonment with eligibility for parole. The appellant was also made a reportable offender.

4 The sole ground of appeal is that the sentence of imprisonment was manifestly excessive.

5 For the reasons that follow, the ground of appeal has no reasonable prospect of succeeding, with the consequence that the appeal is to be taken to have been dismissed: s 27(1), s 27(2) and s 27(3) of the Criminal Appeals Act 2004 (WA).

6 To be guilty of an offence contrary to s 321A(4) of the Criminal Code, a person must engage in an act which, relevantly to this case, constitutes an offence of sexual penetration or indecent dealing with a child between the ages of 13 and 16 years on three or more occasions, each of which is on a different day: s 321A(1) and s 321A(2).

7 His Honour's findings of fact are unchallenged and are set out in Staude DCJ's sentencing remarks in these terms:

During the period of the offending, being 22 months from January 2009 to October 2010, you were aged 56 to 57 years, having been born on 27 November 1952. [E] was aged 14 to 15 years, having been born on 23 October 1994. There is an age difference therefore of about 42 years between you. You were a divorced man with two adult daughters from whom you were estranged.

You met [E's] mother and her family in Victoria in 2007 when [E] was 12. You were involved in a religious group. You engaged [E's] mother and her family in that group and baptised them in March 2007. In 2008 you moved to Western Australia with [E's] sister, who was then aged 15 years, having been born in 1992.

I understand from your account that's part of the history given to your psychologist that you brought [E's] sister, [A], to Western Australia with you on a holiday. In any event, you and she stayed in Western Australia and at the beginning of 2009 [E] came to WA from Victoria to stay with you and her sister at your house at [a regional Western Australian city].

Your sexual dealings with her started at this time. Later her mother and other siblings came to Western Australia and she lived with them for a time before returning to live with you in 2010. [E] recalls a number of specific incidents of sexual conduct but otherwise described ongoing frequent sexual contact by which you gratified yourself secretly. You described this behaviour to the police as causing you to hate yourself.

On an occasion in January 2009, when her sister was out of the house, [E] was alone with you. You dragged a mattress into the lounge room. She lay down on the mattress in her bra and underpants and was at one point lying in a half asleep state with you next to her. You moved your hand onto her inner thigh.

You simulated intercourse with her right hand to the point of ejaculating into her hand. After cleaning her hand you pretended that nothing had happened. Later the same day [E] told you that she had been awake and was aware of what you had done, and you expressed remorse to her.

It was later in the same month that [E's] family moved to Western Australia and resided in your home. Three months later you and [E's] sister, [A], moved to another house in [a regional Western Australian city] [E] would visit you and her sister, although she continued to reside with her family at [a regional Western Australian city].

In this time you continued to engage her in sexual behaviour that included mutual genital touching. [E] and you discussed what was happening between you on more than one occasion. And the two of you agreed that attempts should be made to cease the sexual relationship. But she was a curious young woman in relation to sex and would discuss sexual matters with you. She understood there was no risk of pregnancy as you had had a vasectomy.

On another occasion in 2009 when she had turned 15, she went to your place of work in [a regional Western Australian city] where her sister also worked. You took her to the back of the shop and sat her on a shelf, you spread her legs and moving her underwear to one side, manipulated her clitoris and inserted a finger in her vagina. This continued for a short time before you were disturbed.

In late 2009 or early 2010 when [E] was 15, she visited you and her sister. Again, she and you lay on a mattress on the floor together, neither of you were wearing pants. [E] sat on you and you rubbed your erect penis against her vagina without any penetration as such.

On another occasion around this time you gave [E] a massage as you would do occasionally to her and her sister, and she lay face down on the dining table with no clothes on, you massaged her legs and then rubbed her vagina before inserting one, then two fingers, moving your fingers in and out until her sister walked into the room and you ceased.

On an occasion in early 2010 [E] walked to your home after finishing work at a pizza shop. You and her sister were watching television, you offered her a massage, she undressed and lay on a mattress on the floor. While her sister was out of the room you began to touch her vagina before inserting your fingers into it and moving them until her sister returned.

In mid-2010 [E] went to live with you and her sister at [a regional Western Australian city]. The sexual relationship between you and her continued. The next incident is said to have occurred in spring 2010 when she may have been 16, so it is not relied upon as a fact of the offending, but for contextual purposes, and on that occasion there was sexual penetration of her vagina, again, on a mattress on the floor of a room in your house. This incident which involved on her account penile penetration of her vagina is admitted to have occurred, but not [to] have involve[d] conduct that went as far as penetration.

Otherwise during the period of offending you engaged in sexual behaviour on a frequent basis prior to [E] turning 16 years. The sexual relationship continued after she turned 16 until about April 2013. It was not brought to an end by you (ts 34 - 36).

8 His Honour found that the appellant knew that what he was doing was wrong and that he was doing harm to E, but despite these things, he continued to sexually abuse her (ts 45).

9 The appellant was born in Bendigo in Victoria. His childhood was described by his Honour as 'unremarkable' (ts 41). Since leaving school, the appellant has had a consistent record of gainful employment, including as a member of the Victorian police force. In his early 20s, he accidentally suffered some life-threatening internal injuries. During his convalescence, he became religious and developed a particular interest in the King James Bible. In time, he became a pastor of an evangelical church.

10 The appellant has been married twice and has two adult children. He has no criminal record. At the time of his sentencing, he owned and operated an apparently successful driving school.

11 A substantial number of character references were provided to the learned sentencing judge, all of which spoke positively of him. Some were from women with whom he worked and who made no complaint about the propriety of his conduct towards them. The appellant has some health problems, including as a result of the internal injuries to which we have already referred. There was no evidence before the court below to the effect that the appellant could not be properly treated for his conditions in prison, or that his conditions would make imprisonment more arduous for him.

12 Staude DCJ had before him a pre-sentence report and two reports written by the appellant's treating psychologist, Dr Phil Watts, dated 18 January 2015,[1] and by Ms Kirstin Bouse, a clinical and forensic psychologist, dated 28 April 2015.

13 Some issue was taken at the appellant's sentencing with some of the contents of the pre-sentence report. His Honour did not act upon those parts that were challenged.

14 Dr Watts, who the appellant had voluntarily consulted after his arrest, described him as 'intellectually capable' (par 6 of Dr Watts' report). He found no sign of pathology and no evidence of anxiety or depression. Dr Watts noted 'no evidence of any particular factors to highlight risk and actuary assessment rates him in the low risk range' (par 37 of Dr Watts' report).

15 Ms Bouse said that the appellant has 'limited insight into his own actions'. She went on:

[The appellant] impressed as possessing a very clear understanding of his faith, principles and values. However, he lacked understanding of the deeper internal processes that cause him to make the decisions he does. ... As such, [the appellant] has limited insight into his own complex personality structure as well as the factors that caused him to offend (par 39 of Ms Bouse's report).

16 Ms Bouse also noted that the appellant's history revealed an inability to form 'truly emotionally and sexually intimate relationships' (par 32 of Ms Bouse's report).

17 The victim impact statement that was provided to his Honour was brief, but it was enough to convey the serious adverse effects that the appellant's offending has had upon E.

18 His Honour concluded, perhaps generously, that the appellant should be accorded a 25% discount pursuant to s 9AA of the Sentencing Act 1995 (WA) for his plea of guilty (ts 44).

19 In addition to the plea of guilty, his Honour gave the appellant credit for his:

20 As against these factors, his Honour noted these matters as aggravating:

(a) The appellant engaged in repeated acts of sexual conduct over a period of 22 months (ts 45).

(b) At the time of the offending, the appellant was in his late 50s. By contrast, E was only 14 years old and was immature, naïve, vulnerable and incapable of exercising proper judgment (ts 45).

(c) During the period of the offending, the appellant was in a position of responsibility as both a father-figure and pastoral carer for E; as such, the offending constituted a serious breach of trust (ts 45 - 46).

(d) The appellant's actions were 'persistent and prolonged and profoundly damaging' to E (ts 48).

21 His Honour found that the sexual acts were 'consensual', but noted that, insofar as E demonstrated sexualised behaviour, it was a reflection of the relationship and the 'conspicuously unequal position' she was in (ts 45).

22 His Honour highlighted the need for deterrence and, in particular, general deterrence. He said that, because he did not consider that it was likely the appellant would reoffend in a similar way, personal deterrence was not of 'great importance' (ts 47). His Honour did not go so far as to say that personal deterrence was irrelevant.

23 Senior counsel on behalf of the appellant submitted that the sentence imposed was so harsh as to manifest error. He ventured to suggest that the sentence was 'a year too long' (appeal ts 3). He emphasised the mitigating factors, and that the sexual conduct was 'consensual' and was not accompanied by violence (or threats of violence) or unusual perversion (appeal ts 3).

24 Senior counsel referred the court to a number of cases said to be comparable with the present case that indicated that the sentence imposed upon the appellant was manifestly excessive. The cases cited were: Deering v The State of Western Australia [2007] WASCA 212; Poulton v The State of Western Australia [2008] WASCA 97; JAF v The State of Western Australia [2008] WASCA 231; (2008) 190 A Crim R 124; CJ v The State of Western Australia [2009] WASCA 42; D v The State of Western Australia [2009] WASCA 155; The State of Western Australia v SJH [2010] WASCA 40; (2010) 200 A Crim R 228 and Gavenlock v The State of Western Australia [2014] WASCA 36.

25 This court may only intervene if a material implied or express error has been made. This is not a case of alleged express error. The touchstone in relation to an allegation of implied error is whether the individual sentence under consideration was plainly unjust or unreasonable. The orthodox approach to manifest excess is to have regard to the maximum sentence for the offence; the standards of sentencing customarily imposed; the place which the criminal conduct occupies on the scale of seriousness; and the personal circumstances of the offender.

26 We have already set out the maximum penalty for the offence committed by the appellant.

27 His Honour's findings of fact do not need repetition - they speak eloquently of the seriousness of the offence and the high degree of criminality involved in its commission. This case is a particularly serious example of its type by virtue of the frequency of the sexual conduct and the length of time over which it occurred; the large age difference between the appellant and E; the nature of the sexual conduct engaged in (which included acts of digital penetration of E's vagina and cunnilingus); the abuse of trust; and the harm done to E. This was not, as asserted in the appellant's written submissions, offending at the lower end of the scale. The absence of aggravating factors such as lack of consent, threats, violence, physical coercion or unusual perversion does not turn them into mitigating factors. The most significant mitigating factor was the plea of guilty. While the favourable personal circumstances of the appellant were relevant, the leniency that could reasonably be afforded to them is limited.

28 We turn to the cases cited by the appellant. There is no tariff for sexual offences because of the great variation in the circumstances of their occurrence and of the individual offenders. It may be accepted, as counsel for the appellant did (both at first instance and in this court) that the ordinary disposition, as a matter of fact, of offences contrary to s 321A of the Criminal Code is a term of immediate imprisonment. The dominant sentencing considerations are punishment, deterrence and the protection of children: The State of Western Australia v Rock [2007] WASCA 121 [11].

29 The cases of Poulton, Deering, Gavenlock and SJH are not comparable to the present case. None involved an offence under s 321A of the Criminal Code, although each involved multiple sexual offences against a child victim. The offenders in those cases were men in their early 20s. By contrast, the appellant is a mature man who was, at the time of the offending, in his late 50s. The offending in each of those cases did not involve anything like the same degree of sexual exploitation as the present case, and did not constitute an abuse of trust. CJ and JAF were also cases of multiple sexual offending against children. The offenders in those cases were adults in their 30s. Both were teachers, although neither was the classroom teacher of the victim at the time of the offending. In each of those cases, the offending occurred over a considerably shorter period of time.

30 This leaves the case of D. D was a physical education teacher and soccer coach in his early 30s. The two victims, the first of which was between the ages of 16 and 18 and the second was almost 16, attended D's school, but more relevantly, played in the soccer team he coached. D pleaded guilty to seven counts of sexual penetration of a child under his care, supervision or authority contrary to s 322(2) of the Criminal Code, which carries a maximum penalty of 10 years' imprisonment. He also pleaded guilty to an offence contrary to s 321A in respect of the second victim. D's offending against her occurred over a period between 25 June 2006 and ceased no later than 29 November 2006, and probably earlier.

31 At first instance, D was sentenced to a total effective sentence of 7 years 6 months' imprisonment. For the offence contrary to s 321A of the Criminal Code, he received 5 years' imprisonment. On appeal to this court, the sentence for the s 321A offence was held to be manifestly excessive and the total effective sentence was found to have infringed the first limb of the totality principle. D was resentenced for the s 321A offence to 3 years 6 months' imprisonment and to a total effective sentence of 5 years' imprisonment.

32 While the offending in D was undoubtedly serious and involved two victims, there are significant differences between D and the present case. D abused his position of authority; however, the offending did not involve an abuse of trust [62]. The disparity between the ages of the offender and the victims in D is smaller; the offending occurred over a shorter period of time; and the victims in D were older than E and were willing participants. The harm inflicted upon the victims does not appear as serious as the harm inflicted upon E.

33 Of course, the outcome in one case does not dictate the outcome in another. Each case must be decided on its own facts and circumstances, recognising that there is no one correct sentence. In our opinion, none of the cases cited on behalf of the appellant, including D, indicates that the sentence imposed upon him was manifestly excessive.

34 Having regard to all of the circumstances, we are far from persuaded that the sentence imposed upon the appellant was manifestly excessive. It was neither plainly unjust nor unreasonable. This court's power to intervene has not been enlivened. The proposed ground of appeal has no reasonable prospect of succeeding. We would not grant leave to appeal in respect of it. The appeal must be taken to have been dismissed.

1. Leave to appeal is refused.
2. The appeal is dismissed.

[1] Erroneously referred to as being dated 15 January 2015 in the sentencing transcript (ts 40).