Criminal law - Appeal against sentence - Multiple sex offences against young children - Lineal relatives - Whether total effective sentence of 12 1/2 years' imprisonment infringed the totality principle

Damiani v The State of Western Australia [2006] WASCA 47; (2006) 165 A Crim R 358

R v Bangard [2005] VSCA 313; (2005) 13 VR 146

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

3 MILLER JA: At the hearing of this appeal, the court unanimously refused leave to appeal and dismissed the appeal. It undertook to give reasons and these are my reasons.

4 The appellant pleaded guilty to an indictment containing 13 counts of sexual offences involving two daughters who were respectively aged between 9 and 17 years and 5 and 11 years at the time of the commission of the offences. Three of the offences were offences of indecent dealing with a child whom the offender knew to be his lineal relative (s 329(4) Criminal Code (WA)). There were nine offences of sexually penetrating a child whom the offender knew to be his lineal relative (s 329(2) Criminal Code) and one offence of attempting to sexually penetrate a child whom the offender knew to be his lineal relative (s 329(4), s 552). Counts 1 - 9 involved sexual offences against HS, who was, in relation to four counts, a child under the age of 16 years. Counts 10 - 13 were offences against CS, who was, in respect of each of those offences, a child under the age of 16 years.

5 The offences the subject of the indictment included indecent dealing by the appellant touching the victim on the vagina with his penis, sexual penetration by the appellant penetrating the victim's vagina with his penis, indecent dealing by the appellant pinching the lip of the victim's vagina, attempted penetration by the appellant of the vagina of the victim with his penis, anal penetration by the appellant of the victim with his penis, and indecent dealing by the appellant with the victim in circumstances where he got into the bath with the victim whilst naked.

6 The appellant was sentenced in the District Court at Perth on 13 January 2009 to an aggregate term of imprisonment of 12 years 6 months. The following is a table of the sentences imposed.

Indecent dealing with a child under the age of 16 years (lineal relative)

Sexual penetration of a child under the age of 16 years (lineal relative)

Sexual penetration of a child under the age of 16 years (lineal relative)

Sexual penetration of a child under the age of 16 years (lineal relative)

Sexual penetration of a child under the age of 16 years (lineal relative)

Attempted sexual penetration of a child under the age of 16 years (lineal relative)

Sexual penetration of a child under the age of 16 years (lineal relative)

Indecent dealing with a child under the age of 16 years (lineal relative)

7 The sentencing judge ordered that the sentences imposed on counts 1 - 7 be served concurrently with each other and that the sentences imposed on counts 8 and 9 be served concurrently with each other, but that these sentences would be cumulative upon the sentence imposed on count 4. The sentences imposed on counts 10 - 13 were ordered to be served concurrently with each other, but cumulatively upon the sentences imposed on counts 4 and 9. The result was an aggregate sentence of 12 years 6 months' imprisonment. The sentence was backdated to 10 November 2008 and the appellant was made eligible for parole.

8 The facts underlying the offences committed by the appellant were recounted before the sentencing judge on 13 January 2009. They revealed that the offences constituting counts 1 - 9 on the indictment related to HS, a natural daughter of the appellant, born 18 October 1983. The offences against HS involved inappropriate sexual activity that occurred regularly for many years.

9 The offences the subject of counts 10 - 13 on the indictment related to CS, another natural daughter of the appellant, born 20 February 1994. There were four discrete offences which related to CS and they occurred between 1 January 2000 and 30 November 2006.

10 These offences began in the year 1993, when HS was aged 9 to 10 years. She was in year 5 at a primary school.

11 Count 1 occurred when the appellant and his family lived at an address in Beckenham. The appellant walked the complainant to a table in the kitchen and the complainant sat on the edge of the table. The complainant's pants were on one leg only and were pulled down to her thighs. The appellant then pulled her towards him so that she had her bottom on the table and her legs apart at the edge of the table. The appellant then masturbated as he stood between the complainant's legs. His knuckles brushed the complainant's thigh and his penis touched the outside of her vagina. He stepped back from the table as he was about to ejaculate and the complainant was able to move her legs together and get off the table. This activity, which constituted indecent dealing, then continued on a regular basis during that year.

12 Count 2 occurred when the appellant and his family had moved to an address in Bayswater. The complainant was again attending a primary school. Between 1 January 1994 and 1 January 1996, she was between 10 and 12 years of age. On one occasion, she came home from school ill. The appellant was at home. He told the complainant to lie down in his bedroom and, although the complainant at first wanted to go to her own room, she complied with the appellant's wishes. The appellant brought her a drink and told her to drink it as she would feel better. She did so and she fell asleep. She was fully clothed. Her next recollection was awakening with the appellant on top of her. She was confused and tried to wriggle away, but her arms were pinned against the sides of her body and the appellant told her that 'It's okay. Stay still'. The complainant felt the appellant's penis moving in and out of her vagina. The act continued for a period of time before the appellant removed his penis and ejaculated onto the sheets on the bed. He then left the room, leaving the complainant crying on the bed. She found her pants and underpants on the floor next to the bed. Following this incident, the appellant had regular sexual intercourse with the complainant. It occurred on almost a daily basis.

13 Count 3 alleged an offence at Bayswater, but it appears that it was at Mogumber. The appellant ran a business which took him to country towns and, on a number of occasions, he took the complainant with him. On an occasion when the complainant was between 10 and 14 years of age, she was with the appellant at a house in Mogumber when she was taken by the appellant into a bedroom and told to kneel on the double bed. The complainant knew from events that had occurred in the past that she was required to remove her bottom clothing and to kneel on the edge of the bed with her knees apart and her bottom out. She did this and the appellant stood behind her and penetrated her vagina with his penis. He did so until shortly before ejaculation, when he removed his penis from her vagina and masturbated until ejaculation.

14 Count 4 occurred at a time when the complainant was between the ages of 11 and 15 years. The family was then living at a different address in Bayswater. On one occasion during this period, the complainant accompanied the appellant to Northcliffe, where they stayed in the house of a friend. The complainant was given a couch to sleep on and the appellant was sleeping on a blow-up mattress next to the couch. Once everybody in the house was in bed and the lights were out, the appellant told the complainant to lie with him on the mattress. She did so. She took off her underpants because she knew what was to occur. The appellant lay on top of her and penetrated her vagina with his penis. Whilst this was occurring, the complainant heard a noise and tried to push the appellant away, but he told her that it was okay and continued to have sex with her. Once intercourse had concluded, the complainant dressed herself and went back to the couch. She was unaware whether or not the appellant had ejaculated inside her.

15 Counts 5, 6 and 7 all occurred whilst the family was living in Gosnells. The complainant had, by now, finished schooling and had commenced working. Prior to this time, she had been removed from school by the appellant in order that she could undertake home-schooling. This allowed the appellant to spend more time with her and his sexual conduct towards her continued throughout that period.

16 The offences the subject of counts 5, 6 and 7 on the indictment occurred when the complainant was between 15 and 17 years of age. The offences occurred in the appellant's bedroom, when the complainant was kneeling in the middle of the bed without pants and with her hands in front of her. The appellant inserted his penis in the complainant's vagina and had sexual intercourse with her. It was an event which had become almost a daily occurrence. On this occasion, the complainant told the appellant that she did not wish to have sex with him every day. The appellant removed his penis from the complainant's vagina. He then told the complainant to change position. She sat on the edge of the bed and he knelt between her legs and again placed his penis inside her vagina. As he had sexual intercourse with her, the complainant said to him, 'How would [you] like it if your mother did this sort of thing to you?' The appellant removed his penis from the complainant's vagina and became extremely angry with her. He told her that she could not tell anybody what had occurred and that nobody was ever to know. He grabbed her left vagina lip with considerable force and she felt his knuckles hit her pubic bone area. He pinched her vagina lip hard. These offences constitute counts 5, 6 and 7 on the indictment.

17 Count 8 occurred whilst the family was still residing in Gosnells. The appellant took the complainant to a gazebo at the back of the house for the purpose of sexual intercourse. On an occasion when the complainant was between 15 and 17 years of age, she was kneeling on a towel on the concrete floor of the gazebo, whilst the appellant inserted his penis into her vagina from behind. Whilst this was occurring, the family dog entered the gazebo and then went to the front of the house where it began to bark. The appellant finished having sex with the complainant and she ran back into the house and into her room.

18 Count 9 occurred when the complainant was aged between 15 and 17 years. The complainant was on the floor in the dining room area and the appellant inserted his penis into her vagina from behind. He had sexual intercourse with her and, on this occasion, the complainant's mother observed what occurred.

19 When the complainant was 17 years of age, she became pregnant to the appellant. The appellant made arrangements for her to attend an abortion clinic. On 26 June 2001, a termination procedure was effected. The complainant was informed that the foetus was 4 to 6 weeks gestation. Some weeks after this incident, the complainant was taken by her aunt to Family & Children's Services at Cannington and later to a police station, where the complainant made a statement in which she said that she had been physically abused by the appellant and that there had been one incident of sexual abuse. The complainant later indicated that she would not continue with the complaint. No further action was taken by police.

20 The complainant did, however, obtain a restraining order against the appellant and, from that time, she did not return to the family home. The appellant then turned his attention to the complainant's younger sister, CS.

21 Count 10 occurred at a time when the family was still residing in Gosnells. CS was between 5 and 8 years of age. On an occasion when she was washing dishes in the kitchen area, the appellant led her from the kitchen into the dining room, where he removed her shorts and underpants and lifted her onto the dining room table. He then removed his own pants and stood between her legs. He inserted his erect penis into her vagina and had sexual intercourse with her. He removed his penis and told the complainant not to tell anybody and to get dressed. He then left the room.

22 Count 11 occurred on the following day. The complainant was standing at the linen cupboard in the hallway of the house when the appellant approached her from behind and took her again to the dining room table. There was a pillow on the table. The appellant removed the complainant's shorts and underpants and lifted her onto the table. He removed his erect penis from his pants, but at that point the complainant's mother arrived home. The appellant placed his penis back in his pants and told the complainant to get dressed. She ran to her room.

23 Count 12 occurred at a time when the complainant was between 5 and 8 years of age. The appellant told the complainant to go to his room. She did so and sat on the edge of the bed. The appellant entered and told the complainant to kneel in the middle of the bed. He pulled down her pants, took hold of her hips and placed his penis into her anus. The complainant asked the appellant to stop, as it was hurting, but he continued for a short time before he heard the complainant's mother arrive at the front door. He stopped and went to assist his wife at the door, whilst the complainant dressed herself and went to her room.

24 Count 13 occurred when the complainant was 11 years of age. The complainant's mother had told her to have a bath. She was in the bath when the appellant entered the bathroom naked and climbed into the bath, facing the complainant. He pulled the complainant towards him, holding his penis in his hand. The complainant was fearful that the appellant was going to insert his penis into her vagina and she told the appellant to stop, and pushed herself away. The appellant got out of the bath and yelled at the complainant that if she was going to be like she was, she would be grounded for life.

25 A short time after this incident, the complainant told her older sister, HS, what had occurred. The matter was then referred to police. The appellant was interviewed by investigating officers on two separate occasions, but declined to answer any questions. He was then arrested and charged with the offences the subject of the indictment.

Submissions made on behalf of the appellant at sentencing

26 The appellant was represented at the sentencing hearing. Counsel referred to his pleas of guilty, but said that otherwise there was little that could be said in mitigation. Although the appellant had refused to have the statement of material facts read to him by the author of the pre-sentence report, the statement had since been read to him by his counsel and he did not disagree with it.

27 The appellant contended that sexual abuse of HS had begun when he came home drunk and he claimed that he was always drunk when he had sexual intercourse with both HS and CS. It was said that he was also addicted to Panadeine Forte and that he was under the influence of both alcohol and drugs at the time of the commission of the offences.

28 It should be said immediately that the ingestion of either or both alcohol and drugs (prescription drugs) on the part of the appellant can afford him no excuse or mitigation in relation to the commission of the offences: Damiani v The State of Western Australia [2006] WASCA 47; (2006) 165 A Crim R 358 [2] (Roberts-Smith JA).

29 Reference was made by counsel to both the pre-sentence and psychological reports which had been made available to the court. Both of these set out the personal circumstances of the appellant.

30 It was conceded by counsel that the appellant had not pleaded guilty at the earliest opportunity and it appears that the pleas of guilty were confirmed with counsel only on 9 November 2008, being the day prior to his first appearance before the sentencing judge.

Sentencing submissions of counsel for the prosecution

31 Counsel for the prosecution advised the sentencing judge that a prior conviction of the appellant in 1986 was not as represented either in submissions before the sentencing judge or in discussions with the author of the pre-sentence report. On both occasions, the appellant had maintained that he had a conviction for indecent dealing with a child under the age of 14 years in consequence of removing a towel from a young girl during a pool party and at a time when he was unaware that the young girl was naked. Counsel for the prosecution told the sentencing judge that the facts of the offence were very different. They constituted an offence under what was then s 189 of the Criminal Code; namely, indecent dealing with a girl under the age of 16 years.

32 The facts which were put before the court at the time of the conviction revealed that the appellant had enticed the complainant to his home address for a swim in his pool and, after swimming in the pool, the appellant had taken the complainant to his bedroom where they watched television. There, he placed the complainant on the bed, climbed on top of her, removed his penis from his pants and inserted his fingers into the complainant's vagina. He asked her (in crude terms) whether she wanted intercourse, but when the complainant began crying he released her. He was then 31 years of age.

33 The prosecution submission in relation to the present offences was that the appellant should be sentenced in accordance with the upper end of the range for offences of this type. Specific reference was made to that range as it was articulated in VIM v The State of Western Australia [2005] WASCA 233; (2005) 31 WAR 1 [309].

34 The sentencing judge first noted that the appellant had appeared before him on 10 November 2008 and had pleaded guilty to the 13 counts on the indictment. Judgments of conviction were then recorded and the appellant was remanded in custody until 13 January 2009, with a direction that both a pre-sentence report and a psychological report should be obtained.

35 The sentencing judge noted that the appellant had originally been charged in the Mandurah Magistrates Court in July and September 2007, at which time he had entered pleas of not guilty and had been committed to the District Court for trial on 16 October 2007. Further charges were brought against him in January 2008 and they, too, resulted in a committal for trial in the District Court. Some charges were later discontinued, but, in due course, the appellant faced the indictment which was before the sentencing judge on 10 November 2008 and it was then that he pleaded guilty to all counts.

36 The sentencing judge made reference to the facts of the case. His Honour said that he would take into account the pleas of guilty and, although not early pleas of guilty, that they were to be regarded as favourable to the interests of the appellant because they had avoided the necessity for a trial or trials and members of the family had avoided the trauma of being involved in the court proceedings.

37 The sentencing judge noted that the counts relating to HS (counts 1 - 9) were, in fact, representative counts, whereas those relating to CS (counts 10 - 13) were discrete offences.

38 The sentencing judge made reference to a victim impact statement from HS. Both that statement and a victim impact statement made on behalf of CS reveal that the offences committed by the appellant against his daughters were of the utmost seriousness. The following short extract from the victim impact statement of HS is sufficient to indicate the extent of the anguish she has suffered in consequence of the appellant's behaviour:

I feel that my life has been surrounded by the guilt of this secret for so long. It has been eating me up for my whole life.

If I had been strong myself - maybe my younger sister would not have gone through this too.

I remember when I had the abortion and the female nurse was rude to me as I did not wake up quick enough from the drugs they [gave] me. She told me that I was lucky to have my father there waiting for me. If only she knew that he was the one who actually got me pregnant. She did not understand what I was going through.

39 The sentencing judge concluded that the appellant's conduct had devastated his family and said (rightly) that it was the complete antithesis of what was expected of a father. His Honour made extensive reference to the pre-sentence report and psychological report, noting that in both reports the appellant had sought to sheet home the explanation for the offences to vindictive conduct on the part of his eldest daughter and a desire on the part of his daughters to make allegations for monetary gain. The sentencing judge concluded that this reflected 'a duplicitousness that appears to have characterised your general and long-standing behaviour with your family'.

40 The pre-sentence report reveals that, when interviewed, the appellant had declined to have the statement of material facts read to him; had denied committing the offences and said only that they may have happened; said that he was not sure what had happened, as he was on drugs or heavily intoxicated for a number of years; said that his eldest daughter had created the allegations for the purpose of claiming criminal compensation; and said only that (presumably as an explanation for pleading guilty) he did not want to put his wife or daughters through the ordeal of attending court. The writer of the pre-sentence report says that the appellant maintained his stance of denial throughout the interview.

41 As I have already noted, the writer of the pre-sentence report thought that the appellant had only a minimal offending history, having only the appellant's version of events for the 1986 conviction.

42 The appellant's antecedents were fully recorded. He was 54 years of age. He contended that his childhood was marred by physical abuse at the hands of his father and that his mother had been the victim of a gang rape and had subsequently died.

43 The summary to the pre-sentence report described the appellant as a 54-year-old man, who claimed to have no recollection of having committed the offences the subject of the indictment. He maintained a denial stance throughout the interview process and alluded to the possibility that the offences may have occurred and that he was possibly unable to recall them having occurred due to long-term drug and alcohol abuse. He had pleaded guilty only to protect his wife and daughters from a lengthy court ordeal.

44 The psychological report set out the appellant's antecedents in more detail than the pre-sentence report. The writer reported the appellant as presenting himself as not interested in sex and as claiming to have a low sex drive, but pointed out that his offending raised questions about the veracity of this claim. She concluded that there was support for a hypothesis that he had a sex drive directed towards children.

45 The psychological report notes that the appellant denied responsibility for the offences, although he said that it was logically possible that he could have carried out one or two of the offences when he was drunk. He claimed not to have been aware of having done so. He offered no insight into how his daughters may have been affected by the sexual abuse and said that he only pleaded guilty after advice from his lawyer and to avoid putting his wife and children through a trial. The psychologist reported the 1986 offence in terms which were inaccurate, but, even then, concluded that the conviction added to concern about the appellant's risk in that it endorsed a pattern of sexual offending against children.

46 Psychological testing of the appellant revealed that he had only a moderate-low risk of reoffending on the STATIC-99 test. However, this assessment was made only on the basis of the appellant's prior sexual offence with a non-related victim as it was presented to the writer of the report. Other factors were, however, thought to be significant. These included the appellant's persistent offending over a long period of time; the ages of his victims; his offending against children with whom he had a relationship; possible cognitive distortions and attitudes associated with condoning sexual violence against children; minimisation of his offending; little self-awareness of his actions or victim empathy; a pattern of deviant sexual arousal to prepubescent and adolescent girls; and the use of alcohol as a disinhibiter to allow him to otherwise overcome internal objections to consider sex with children.

47 The sentencing judge also made reference to some character references which had been provided for the appellant. Having considered everything that had been written and said on the appellant's behalf, his Honour was concerned that there was a risk of the appellant reoffending by reason of his demonstrated ability to either rationalise his conduct or deny it, or both.

48 After taking into account the appellant's pleas of guilty, the sentencing judge imposed the sentences which resulted in an aggregate sentence of 12 years 6 months.

49 The single ground of appeal upon which leave was referred for hearing at the time of the appeal is in the following terms:

The learned Judge erred in imposing a total effective sentence which infringed the principle of totality, having regard to the overall criminality involved in the various offences viewed in their entirety and all the circumstances of the case including those referable to the Appellant personally.

50 The appellant's submissions, which are contained within the written case, were the subject of criticism at the hearing of the appeal. That criticism was rightly made, because the submissions consist of little more than a chronology of what occurred at the sentencing hearing and reference to a number of supposed comparative cases, which transpired to be anything but comparable. Further, the comparative cases failed to include a reference to VIM, in which the Court of Appeal reviewed a number of cases involving multiple counts of sexual offending against either a child or children. In VIM, the court concluded that, in relation to offences which were in the nature of frequent or prolonged sexual offending against either a child or children, it could be said that the range of sentences (after application of the transitional provisions) was most commonly 6 years 8 months to 12 years 8 months (the former 10 - 19-year range). At [309], the court (Wheeler, Roberts-Smith and Miller JJA) put it this way:

Finally, in relation to offences of this kind (that is, cases of frequent or prolonged sexual offending against a child or children), it is convenient to undertake the exercise of converting the sentences which we have discussed into those which would be imposed after the transitional provisions came into operation on 31 August 2003. The 'lower end' cases of up to 4 years formerly, would now be up to 2 years and 8 months; the most common sentence one would expect to see would be approximately 6 years and 8 months, and about two-thirds of sentences in such cases would fall within the range 6 years 8 months to 12 years 8 months (the former 10 to 19-year range). A term other than immediate imprisonment would be imposed only in the most unusual of cases (eg Marris v The Queen [2003] WASCA 171, where the six counts all occurred over the space of one evening, the offender and complainant were unrelated, the offender was a particularly immature young man, the complainant was 13, and there was no question of any force, threat, or 'grooming'). Those sentences, we stress, are the range one would expect to see after a plea of guilty. [309]

51 The court, at [288] - [291], also made reference to the firming-up of sentences involving sexual offences against children, as the courts have, over the years, gained a better understanding of the long-term effects of such offending upon children. The present case is an example of the 'destructive effect of such offending ... upon a child's capacity to trust others and to form relationships, and upon the child's sense of self-worth' [291]. The victim impact statement of HS speaks eloquently of these matters.

52 The circumstances of the offences committed by the appellant were undoubtedly very serious. Counts 1 - 9 on the indictment involved a number of offences (but mainly offences of penile penetration of the vagina) over a period of eight and a half years when the complainant was aged between 9 and 17 years. The offences charged were only a representational sample of many other offences that occurred. The offences the subject of counts 10 - 13 on the indictment were committed over a period of approximately seven years, during which time CS ranged in age from 5 years to 11 years. It is true that there were only four discrete offences charged, but each was very serious. The appellant, having been denied the opportunity to continue his sexual relationship with HS, turned to her younger sister and effectively replaced her in terms of his sexual advances.

53 By any account, the appellant's offending behaviour, which occurred over a period of approximately 14 years, and involved two of his daughters from, in each case, very young ages, was in the most serious category of offences. One could therefore expect that the aggregate sentence to be imposed for such behaviour would fall at the higher end of the range, rather than the lower.

54 Counsel for the appellant was questioned at the hearing of the appeal as to how he could advance an appeal on behalf of the appellant who had been sentenced to 12 years 6 months' imprisonment, when the range for offences of this nature was 6 years 8 months to 12 years 8 months and the appellant's offending clearly fell at the higher end of that range. All that counsel could say was that the offending was not at the higher end of the range. However, such a submission was a hopeless one, as the offences committed by the appellant incorporated all of the worst features of offending behaviour of his type. Specifically, the offending behaviour included offences against two daughters, beginning at an early age and over a long period of time; involved the pregnancy of the older of the daughters which led to a termination; contained a element of persistency; were committed in gross breach of the relationship of trust that must have existed between the appellant and his two daughters; and had a devastating effect upon at least the elder of the two girls.

55 It must be remembered that the range of 6 years 8 months to 12 years 8 months, set by the court in VIM, is to be viewed against a firming-up generally of sentences for sexual offences against children, particularly those in relation to whom the offender has a lineal relationship. Further, the range is only a range, and the top of the range is not to be considered as the maximum for serious offences of that kind. A judge may rise above the range if it is necessary to do so (R v Bangard [2005] VSCA 313; (2005) 13 VR 146 [39] (Nettle JA)).

56 However, the present case can be disposed of on the basis that the aggregate sentence imposed was within the range of sentences which this court has said in VIM is appropriate in cases of prolonged sexual offending against children. This is particularly so, given the fact that each child was a natural daughter of the appellant and given the other circumstances to which I have made reference. It was a case of the utmost seriousness and the sentence imposed upon the appellant was entirely within range and appropriate.