Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA

Criminal law - Appeal against sentence - Totality principle - Turns on own facts

Sentencing Act 1995 (WA), s 6(1)

Order for cumulacy on counts 6 and 7 set aside and replaced with order for concurrency

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

JAF v The State of Western Australia [2008] WASCA 231

Miles v The State of Western Australia [2007] WASCA 258

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

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

The State of Western Australia v SJH [2010] WASCA 40

Wilson v The State of Western Australia [2010] WASCA 82

3 MAZZA JA: This is an appeal against sentence.

4 The appellant was convicted after trial of three counts of indecently dealing with a child between the ages of 13 and 16 years and two counts of sexually penetrating a child between the ages of 13 and 16 years. On 16 November 2012, his Honour imposed a total effective sentence of 4 years 6 months' imprisonment with eligibility for parole, to commence on 5 October 2012.

5 The appellant's sole ground of appeal, for which leave to appeal has been granted, is that the total effective sentence infringed the first limb of the totality principle. This ground should be upheld. I would allow the appeal, set aside the sentences imposed by his Honour and substitute a total effective sentence of 3 years' imprisonment. My reasons for arriving at this conclusion are as follows.

6 The complainant was born in November 1994. The appellant was born in September 1986.

7 The indictment, as presented by the State at the outset of the trial, alleged that the appellant had committed nine sexual offences against the complainant. It is clear from her oral testimony that she did not completely come up to proof. Count 1 was originally an allegation that the appellant had sexually penetrated the complainant. She did not testify to that effect. Rather, the effect of her evidence was that she had been indecently dealt with, pursuant to s 321(4) of the Criminal Code. She gave no evidence in respect of counts 4, 5, 8 and 9 on the indictment. At the conclusion of the State's case, the indictment was amended so that count 1 became an allegation of indecent dealing with a child aged between 13 and 16 years, and the State was given leave to discontinue the prosecution with respect to counts 4, 5, 8 and 9.

8 At the conclusion of the defence case, the State was given leave to amend the dates of the charges that remained to reflect the evidence given by the complainant which was inconsistent with the dates in the indictment as originally framed, so that counts 1, 2 and 3 were alleged to

have occurred on a date unknown between 30 November 2007 and 1 February 2008 when the complainant was aged 13 years and the appellant was aged 21 years. Counts 6 and 7 were amended to allege that they occurred on different but unknown dates between 30 June 2008 and 1 February 2009, when the child was aged either 13 or 14 years and the appellant was aged either 21 or 22 years.

9 The offences occurred in these circumstances. The complainant's parents separated in 2006. She and her younger sister went to live with their mother in a town close to Perth. Their father went to the Mandurah area to live. At one point, he resided in Dudley Park. Later, he moved to an address in Silver Sands, opposite his mother. The complainant and her sister stayed with their father during school holidays.

10 The appellant and the complainant's father were friends. They shared mutual interests in playing pool and computer games. The appellant was a regular visitor at the complainant's father's house, where together they would play computer games, often for hours on end, and drink alcohol together. Occasionally the appellant would stay overnight, including on nights when the complainant and her sister were present.

11 Over time, the appellant came to know the complainant and her sister. He developed a sexual interest in the complainant. Counts 1, 2 and 3 occurred on the one occasion, sometime between 30 November 2007 and 1 February 2008 in the lounge room of the Dudley Park address while the appellant and the complainant were watching television. The appellant put his hand down the appellant's track pants and rubbed her vagina (ts 66 - 67). He then took the complainant's hand and placed it on his penis on the outside of his pants (ts 67). She removed her hand, but the appellant grabbed it again and placed it back on his penis, over the top of his underpants, and moved her hand up and down (ts 67 - 68). The appellant's actions were neither initiated by the complainant nor welcomed by her.

12 Count 6 occurred at the Silver Sands address. On this occasion, the complainant was asleep in the lounge room. The appellant woke her and asked her if she wanted to have sex with him. He lay on top of the complainant, pulled her shorts and underwear to the side and penetrated her vagina with his penis. In her testimony at trial, she said she told the appellant that she did not want to do it and that he was hurting her. The appellant continued for a short time, but then withdrew his penis and asked the complainant to masturbate him, which she refused to do. Finally, the appellant masturbated himself to ejaculation (ts 103).

13 Count 7 was committed on another night at Silver Sands. The complainant woke in her bedroom to find the appellant in her bed. He penetrated her vagina with his fingers, moving them around for 'a couple of seconds' and suggested that they again have sexual intercourse. She rolled away from the appellant and said that she did not want to have sex with him. The appellant then stormed out of the room (ts 106).

14 At some stage, the appellant and the complainant began communicating by social media, mostly via MSN. His Honour found that the complainant might have had an adolescent crush on the appellant. In his sentencing remarks, he said it appeared to him that they were behaving as though they were boyfriend and girlfriend. The complainant said that these communications ceased when she became unable to access her MSN account.

15 The offending came to light in 2011. The complainant was referred to a counsellor because she was being bullied at school. In that process, she disclosed what had gone on between the appellant and her. Shortly afterwards, the police were notified. On 14 December 2011, the appellant was interviewed by the police. He denied engaging in any sexual behaviour with the complainant, but he admitted that the relationship he had developed with her 'had overstepped the mark'.

16 At the time of offending, the appellant was 21 or 22 years of age. By the time he was sentenced, he was 26 years old. He had encountered difficulties in his childhood. His father, who was reportedly angry and volatile, was, on occasions, physically abusive to him and to his mother. In due course, his parents separated. He has a close relationship with his mother, but not his father.

17 The appellant left school at the beginning of year 11 and completed one year of a TAFE course in computer studies. Since then, he has been constantly employed and was described in the court-ordered psychological report as having a strong work ethic.

18 At the time he was sentenced, the appellant was a married man with a 20 month old son. His wife, who was pregnant with their second child, was supportive of him.

19 The appellant has no history of problematic illicit drug or alcohol use. He has no record of convictions, save for an offence of reckless driving in 2010 (AB 66) which his Honour regarded as of no relevance. The expert reports tendered to his Honour revealed that the appellant has no ongoing psychological or psychiatric issues apart from a degree of depression. He was considered to be a low risk of reoffending in the future.

20 No victim impact statement was provided to the learned sentencing judge. Thus, there was no evidence before his Honour as to the effect of the offending upon the complainant.

21 Defence counsel, in his plea in mitigation, submitted that the appellant's conduct was 'at the lower end of the scale' and that, having regard to his favourable antecedents, a suspended term of imprisonment could be imposed. Defence counsel submitted that the offending did not have many of the features of more serious cases of sexual abuse. He noted that the offences were not committed in breach of a relationship of trust, nor were they committed in circumstances of actual or threatened violence. In remarks made in the course of the plea in mitigation, his Honour seemed to accept that the offending occurred in the context of a developing relationship between the appellant and the complainant. His Honour said:

... [the appellant has] got to a point where, in this developing relationship, it started with petting and fondling as relationships often do and then ended up in a pretty serious situation (ts 359).

22 His Honour expressly referred to the psychological report. He apparently accepted its findings, observing that the appellant had no personality disorder or psychological problem beyond a degree of depression. He further observed that the appellant was assessed as posing a low risk of further offending.

23 The learned sentencing judge accepted that the appellant was not a predator 'in the broad sense of that word' and that he was a person of otherwise good character. He commented favourably upon the appellant's work ethic and noted that he was well-regarded by those who knew him, particularly by his family and his employer. His Honour referred to a letter he received from the appellant's mother-in-law, to the effect that the birth of the appellant's son had brought about a change in him for the better.

24 His Honour regarded the offences of sexual penetration (counts 6 and 7) as the most serious. With respect to the offences of indecent dealing (counts 1, 2 and 3), his Honour said that, had the appellant's offending been confined to those offences, he would not have imposed any type of custodial penalty (ts 377).

25 His Honour remarked that the appellant was at all times aware of the complainant's young age and that he took advantage of his friendship with the complainant's father to develop an inappropriate and increasingly sexual relationship with her, in the context of which he committed the offences.

26 His Honour noted the appellant's stance of denial. He did not regard this as an aggravating factor, but said that the appellant was not entitled to any mitigation by reason of pleas of guilty and remorse.

27 His Honour said that he regarded the offences of sexual penetration as so serious as to warrant only immediate terms of imprisonment. He stated that the predominant sentencing considerations were personal and general deterrence. The remark about personal deterrence was made despite the assessment that the appellant posed a low risk of further offending.

28 The individual sentences imposed upon the appellant are as follows:

Indecent dealing (child > 13 13 13 13 13 < 16 years)

29 His Honour ordered that the sentences on counts 6 and 7 be served cumulatively with each other and that the sentences on counts 1, 2 and 3 be served wholly concurrently.

30 Mr Myers, for the appellant, did not challenge any of the individual terms of imprisonment that were imposed. Nor did he allege that his Honour erred by imposing immediate terms of imprisonment (appeal ts 10). He submitted that the offending was at the 'lower end' of offences of this type. He emphasised the appellant's young age at the time of his offending, his favourable antecedents, low risk of reoffending and favourable prospects for the future. He referred to several decisions of this court including Deering v The State of Western Australia [2007] WASCA 212; Miles v The State of Western Australia [2007] WASCA 258; Poulton v The State of Western Australia [2008] WASCA 97; JAF v The State of Western Australia [2008] WASCA 231 and The State of Western Australia v SJH [2010] WASCA 40. He submitted that they indicated that the total effective sentence imposed upon the appellant infringed the first limb of the totality principle and should be reduced.

31 Mr Scholz, for the respondent, acknowledged that the total effective sentence imposed upon the appellant was 'high', having regard to his youth at the time they were committed. However, he submitted that, in contrast to the cases cited on behalf of the appellant, the appellant did not have the benefit of an early plea of guilty and had expressed no remorse or contrition.

32 Mr Scholz submitted that the total effective sentence was justified because:

(a) the complainant did not 'meaningfully' consent to the sexual activity with the appellant;

(b) the appellant initiated the sexual activity; and

(c) the appellant took advantage of his friendship with the complainant's father to commit the offences.

33 The general principles applicable to appeals against sentence are well known and well accepted. They were correctly described by McLure P and Owen JA in Wilson v The State of Western Australia [2010] WASCA 82 [2]. There is no need to repeat them.

34 The appellant alleges a breach of the first limb of the totality principle. The totality principle is a reflection of the fundamental principle that a sentence must be proportionate to the seriousness of the offending: the Sentencing Act 1995 (WA) s 6(1). Relevantly to this case, it requires a judicial officer who is sentencing an offender for more than one offence to ensure that the total effective sentence bears a proper relationship to the overall criminality in all the offences viewed in their entirety, having regard to all of the circumstances of the case, including those referable to the offender personally: Roffey v The State of Western Australia [2007] WASCA 246 [24] - [26].

35 While the offences of indecent dealing must not be ignored, unquestionably the offences of sexual penetration were the most serious aspect of the appellant's offending. They were committed in the context of the appellant developing an inappropriate sexual interest in the complainant, knowing full well her age. He took advantage of the opportunities presented to him through his friendship with the complainant's father by initiating and then engaging in the acts of sexual penetration. There can be no doubt that he knew what he was doing was wrong.

36 As against these factors, the appellant desisted from each act of penetration when told to by the complainant. The act of digital penetration (count 7) was of a very short duration. None of the offences involved features frequently seen in other cases such as the threat of commission of violence. There was no relationship of trust. The effects upon the complainant are unknown. After the offences were committed, a 'boyfriend/girlfriend' like relationship developed.

37 The appellant's personal circumstances were favourable. At the time of the offending, the appellant was a young man of good character. Since the commission of the offences there has been no further relevant offending. The appellant has married and has become a father for the first time. He remains employed. He has no psychological or psychiatric issues and has no problems relating to alcohol or illicit drug use. The appellant's risk of reoffending is low.

38 Two aspects of the sentencing remarks must be mentioned. First, although the learned sentencing judge referred to the appellant's age at the time of the offending, he did so only in the context of comparing his age with that of the complainant. Unusually, he made no reference to the appellant's youth as a mitigating factor and does not appear to have given it any weight.

39 The second aspect is one I have already touched upon, being the effect of personal deterrence. His Honour stated that the predominant sentencing considerations in the case were personal and general deterrence. There can be no quarrel with the proposition that general deterrence was a matter of importance in this case, but his Honour's stated need to provide personal deterrence is inconsistent with the unchallenged evidence that the appellant was a low risk of reoffending.

40 I have read and had regard to the comparative cases cited by the appellant. Amongst those cases are useful analyses of a substantial number of broadly comparable cases by Wheeler JA in JAF v The State of Western Australia [2008] WASCA 231 [15] and by Buss JA in his dissenting judgment in The State of Western Australia v SJH [2010] WASCA 40 [149] - [159].

41 I accept the respondent's submission that a material difference between the cases cited on behalf of the appellant and the present case is that the appellant does not have the advantage of pleas of guilty and genuine remorse. That said, an examination of the cases indicates that the sentences imposed in this case are severe, particularly having regard to his youth when the offences were committed, his favourable antecedents, his good prospects for the future and the reduced need for personal deterrence.

42 In all of the circumstances, and with great respect to the learned sentencing judge, I have been persuaded that the total effective sentence infringed the first limb of the totality principle. The sentence was more than was required to satisfy the sentencing objectives of punishment, retribution, general deterrence (personal deterrence not being a relevant factor) and reform. Moreover, although the appellant was content to rely on a ground alleging implied error, it is apparent that his Honour made two material express errors: by failing to give weight to the appellant's youth at the time that he committed the offences and in giving weight to the need for personal deterrence when there was no basis to do so. Again with great respect to his Honour, those errors would have justified the intervention of this court.

43 In my opinion, an appropriate total effective sentence in this case was 3 years' imprisonment. I would achieve this by setting aside his Honour's order for cumulacy in respect of counts 6 and 7 and substitute it with an order that those sentences be served concurrently with each other. All the other sentences and orders made by his Honour should stand.

44 I would allow the appeal. I would make the following orders:

1. The appeal is allowed.
2. The order for cumulacy made by his Honour with respect to counts 6 and 7 is set aside and replaced with an order that the sentences be served concurrently with each other.
3. All other sentences and orders made by his Honour stand.

45 For the sake of clarity, the total effective sentence that the appellant is now required to serve is 3 years' imprisonment. He remains eligible for parole. The sentences are backdated to commence on 5 October 2012.