Court of Appeal (WA)|2008-04-30|Before: Mr J, Steytler P, Lure JA, Miller JA

F -v- THE STATE OF WESTERN AUSTRALIA [2008] WASCA 100 (30 April 2008)

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

CITATION : F -v- THE STATE OF WESTERN AUSTRALIA [2008] WASCA 100

Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA

Criminal law - Sexual offences against offender's de facto child - Causative effect of mental health problems - Relevance of mental health problems to sentencing - Totality principle - Turns on own facts.

1 STEYTLER P: On 19 April 2007 the appellant pleaded guilty to one count of indecent dealing with, and 11 counts of sexual penetration of, his de facto child contrary to s 329(4) and s 329(2), respectively, of the Criminal Code (WA). On 22 June 2007 he was sentenced to a total term of 8 years' imprisonment. He was declared to be eligible for parole. He appeals against the total sentence imposed upon him.

2 The complainant was born on 12 April 1990. Some six years later the complainant's mother married the appellant. The offending commenced in early 2003. The appellant was then 35 years old. The complainant was 12 years old. The appellant told the complainant that he had a crush on her and asked her if he could touch her vagina. She refused. He repeated his request on a number of occasions until the complainant eventually said yes. The appellant then touched the outside of the complainant's vagina and, in the course of doing so, exposed his erect penis to her. This gave rise to the count of indecent dealing. Over the next three years, having groomed the complainant to accept his activities, the appellant continued a sexual relationship with her.

3 It was during this period that the 11 instances of sexual penetration occurred. These offences encompassed oral penetration, digital penetration and penile penetration. On a number of occasions the appellant's activities caused the complainant pain, sufficient to make her cry. This did not always deter the appellant. The sentencing judge found that there was 'psychological and to an extent some physical imperative applied to [the complainant] to achieve [the appellant's] purposes'. He rightly described the appellant's conduct as 'aberrant to a significant extent'. It involved a gross breach of trust.

4 The appellant's offending behaviour came to an end only because the complainant made a complaint to the police. This was in March 2006. The complainant was then 15 years old. The appellant was 38 years old.

5 The appellant was interviewed by police on 15 and 17 March 2006. He made no admissions in respect of the offences. He told the police that the complainant was lying. However, he was taken into custody on 16 March 2006 and charged with these offences. It was not until 13 August 2006 that the appellant made a partial admission of his offending to his wife. As I have said, he pleaded guilty to the 12 counts on 19 April 2007.

6 At the time of sentencing, the sentencing judge had available an antecedent report, a pre-sentence report and two psychological reports.

7 The antecedent report reveals that the appellant has three natural children with the complainant's mother, that he was unemployed and on a disability pension at the time of sentencing and that he had previously been employed as a hospital orderly. He had no prior criminal record.

8 The pre-sentence report records that the appellant acknowledged the sexual relationship that he had with his victim. He said that he believed that the relationship had been 'blessed' by the 'spirits'. He said that the relationship was given to him by the spirits because 'he deserved something good' in his life. He believed that his victim had enjoyed the 'closeness'. He also said that he had been told by 'voices' that his sexual relationship with his step-daughter was 'right'. The voices had told him, on occasions, to 'bash' his partner and his children but he had never done so. The author of the pre-sentence report noted that she had been told by the appellant that he had been engaged with a psychiatrist for a number of years but that she had been 'unable to contact his treating psychiatrist'.

9 The pre-sentence report also records that, as a child, the appellant had been sexually and physically abused by an older cousin. His parents had also been violent towards him.

10 The first of the psychological reports was prepared by Dr Phil Watts, a clinical and forensic psychologist who was engaged for that purpose by the appellant's solicitors. The report is dated 24 February 2007. Dr Watts had interviewed the appellant for 1 1/2 hours at Hakea Remand Centre on 22 February 2007. Dr Watts records that the appellant reported a number of health problems, including a type of spondylitis which acquires an infusion of antibodies every six weeks, rheumatoid arthritis and polycystic kidneys. The appellant also reported significant psychiatric concerns, including schizophrenia, bipolar disorder, post-traumatic stress disorder, attention deficit hyperactivity and something he called 'psychotic break'. The appellant told Dr Watts that he had been receiving psychiatric care for some time from Dr Arvid Linde, who he saw prior to admission, and that he had, more recently, seen a remand centre psychiatrist on a monthly basis. In his report, Dr Watts said that there was, in this case, 'a significant overflow into the area of psychiatry' and that, as a clinical psychologist, he could not 'necessarily address areas outside the expertise of a Psychologist'.

11 Dr Watts was also told of an ongoing abusive childhood sexual relationship which the appellant said he had been subjected to by his older cousin. He said that this commenced when he was about 10 years old. He also said that at the age of 10 he was raped by an older friend.

12 The appellant told Dr Watts that he heard voices, which were almost always present. He claimed to have seen ghost-like figures and several different demons. He spoke about being 'overtaken' by some other personality. However, despite the intensity of these beliefs, Dr Watts considered that the appellant presented with insight and awareness of what was happening. He said that the appellant, although presenting as fairly flat emotionally, displayed emotions that were not inappropriate. The appellant reported having made eight significant suicide attempts.

13 Dr Watts reports that the appellant claimed that he was not angry with the complainant for 'dobbing [him] in', but said that he was still angry 'because she went with another bloke'. The appellant said that he knew that he was guilty, but that the complainant had been given to him by the spirits who had told him that she was his gift from God.

14 Dr Watts could find no evidence that the appellant was sexually attracted to children. He said that his problems centred around his bizarre belief system and his love for the complainant. Although the appellant had showed 'a little insight' into the inappropriateness of his actions, he nonetheless placed the entire blame upon the complainant and showed no insight into interpersonal taboos and his role of trust within the family.

15 By way of general recommendation, Dr Watts thought it important that the appellant receive ongoing psychiatric help. He said that there might be 'some scope for an independent pre-sentence psychiatric report'.

[The appellant] presents as a deeply disturbed man with significant mental health problems. He comes from a background of major family dysfunction with extensive sexual abuse, which has distorted his perceptions of appropriate sexuality. As best I could ascertain his thought processes were not consistent with a paedophile attraction, rather more related to obsessive and bizarre beliefs around his step-daughter, with whom he had a close relationship ... In my opinion there is some significant mitigation for these very serious charges, but [the appellant] was not without some awareness that what he was doing was wrong. However, this was distorted by his bizarre belief systems such as believing that she was 'given to him by God'.

17 The second psychological report was prepared by Ms Kirsten Bouse, a forensic psychologist engaged by the Department of Corrective Services. The report is dated 15 June 2007. It is based upon a lengthy clinical interview with the appellant at Hakea Prison on 6 June 2007, a review of the statement of material facts, interpretation of psychometric testing measures administered during the interview and a discussion with the author of the pre-sentence report. Ms Bouse said that the appellant refused to provide her with permission to contact any family and friends, with the result that she could not verify much of the information contained within her report. She also said that attempts to verify the appellant's alleged psychiatric history were unsuccessful. No explanation was given as to why these attempts were unsuccessful.

18 The history given by the appellant to Ms Bouse is largely consistent with that which he gave to Dr Watts. He spoke of the physical and mental ailments with which he said he had been diagnosed. He reiterated that the spirits had given the complainant to him as a gift. He said that his wife had been unfaithful to him some years before and that it was for this reason that the spirits had given the complainant to him. He showed an ongoing jealousy concerning the fact that the complainant had developed a relationship with a male of her own age. Although the appellant spoke of having had a number of discussions over the past year with a priest who, he said, had enabled him to see the error of his thoughts, he continued to blame the complainant for his offending behaviour. He also continued to find other justifications for it.

19 Psychometric testing of the appellant revealed a marked degree of symptomology consistent with post-traumatic stress disorder and generalised anxiety. There was also some evidence of his disorganised thought processes and delusional beliefs, although the related scales were not sufficiently elevated to suggest that these had a strong presence. However, Ms Bouse considered that the findings were consistent with the appellant's claim that he was currently being medicated for schizophrenia and that the medication had had some success in moderating his experience of these difficulties. The testing revealed a significant instability in the appellant's mood and behaviour.

20 Testing concerning the appellant's sexual interest and behaviours showed a profile largely consistent with his presentation during interview. However, the results suggested dishonesty in relation to the presence of deviant sexual interests. Ms Bouse considers that the appellant's responses revealed his acknowledgement of his offending behaviour and acceptance of responsibility for what occurred, but said that this was 'somewhat contrary to his presentation during interview'. However, she concluded that the appellant was motivated to engage in treatment aimed at addressing his offending behaviour.

21 Ms Bouse also said, in her report, that the test results suggested that the appellant was able to recognise the actual acts of sexual abuse as having been abusive, but that he did not acknowledge having engaged in any fantasy or grooming behaviours. This was said to be indicative of his limited insight. Ms Bouse concluded that the appellant had deviant sexual interests and an extreme insensitivity to the violence inherent within his behaviour towards the complainant. She said that one of the factors that underlay his behaviour was his resentment for his wife's infidelity and his belief that his actions were an appropriate avenue of revenge. She considers that the appellant has a one in 20 chance of sexual re-offending within a 5-year period.

22 Ms Bouse also said that it is not unusual for someone who has been in the mental health system for as long as the appellant apparently has, to have received multiple diagnoses until such time as clear differential diagnoses are made. She said that it seemed that this had happened in more recent years, when the appellant was seemingly diagnosed with schizophrenia. However, she was unsure whether the appellant had in fact been diagnosed with that illness and/or if he was appropriately medicated. The appellant had told her that he is typically non-compliant with his medication regime when in the community.

23 Ms Bouse questioned the personal difficulties from which the appellant claimed to have suffered in his childhood, saying that the degree and persistence of the trauma allegedly experienced was so severe as to be questionable.

24 Ms Bouse appears ultimately to have accepted that the appellant had probably been diagnosed with schizophrenia. She also concluded that he suffered from other personality problems, including an undefined identity, poor self-esteem and a sense of hopelessness and powerlessness. She considered that, once his psychiatric problems had been properly diagnosed, he would benefit from ongoing specialised sex offender treatment.

25 There was initially only one ground of appeal, to the effect that the totality principle was infringed by the aggregate period of imprisonment imposed. On the hearing of the appeal counsel for the appellant applied for leave to amend the grounds of appeal by adding an additional ground as follows:

The learned sentencing judge erred in finding that the appellant's mental health difficulties were not at all causative of the appellant's offending.

26 She also sought an adjournment so as to allow the court to obtain a report from a psychiatrist. Leave was given to make the amendment, but the application for an adjournment was refused. There was no adequate basis for it. The application for the adjournment was made on the day of the hearing. Counsel for the appellant said that she had read the psychological reports for the first time on the previous day. She acknowledged that she had no valid excuse for leaving this until the last moment. The mental health problems suffered by the appellant should anyway have been obvious from a reading of the sentencing remarks included in the appeal book.

27 More importantly, the appellant's legal advisers had always been aware of his claim that he had been diagnosed with psychiatric illnesses. The appellant did nothing to place any psychiatric evidence before the sentencing judge and, as I have mentioned, he refused permission for Ms Bouse to contact his wife, family or friends. His chosen psychologist, Dr Watts, recommended that it would be 'beneficial to gaining further understanding if information from both the Prison Health Service and his previous psychiatrist could be accessed'. I have said that Dr Watts recommended that a current psychiatric assessment be made. However, none of these things was done, presumably on the appellant's instructions, notwithstanding that there was a gap of almost four months between the date of Dr Watts' report and that of sentencing.

Causative effect of 'mental health difficulties'

28 It is convenient to deal first with the new ground.

29 At the trial, the prosecutor said nothing, in the course of his opening sentencing submissions, concerning the mental health of the appellant. The then counsel for the appellant, Mr Rod Keeley, made this submission in respect of the appellant's mental health:

[I]t's pretty clear that [the appellant] has some significant mental health problems that remain both undiagnosed and certainly unresolved. The nature of the relationship with the complainant appears to have been developed into something which was obsessive over the years and that, I would submit, seems to be directly related to the mental health issues that he seems to be suffering from. Although, it is rather unclear from any of the reports exactly what those problems are.

Counsel for the appellant also mentioned that the appellant's failure to plead guilty in the first instance 'was caused as much by embarrassment as a desire to avoid the consequences of his actions'.

30 In his submissions in response, the prosecutor said, amongst other things:

There is also some emphasis on the mental health of this particular offender. In our respectful submission, that carries significantly less weight. It means that he can't necessarily be a significant vehicle for general deterrence if your Honour is indeed satisfied that there is a significant mental impairment, and we don't say that the reports go that far; indeed my learned friends has made that concession there seems to be some undiagnosed issues there [sic].

31 Shortly afterwards, the following exchange occurred between the sentencing judge (Wisbey DCJ) and the prosecutor (Mr Rafferty):

WISBEY DCJ: One gets the impression from the papers that his thought processes are not what one would regard as usual, but then that is the position with most offenders that come before the court.

RAFFERTY MR: Exactly. Anyone engaging in this type of behaviour has to have something unusual.

WISBEY DCJ: There is nothing to suggest that any cognitive issues are causative of the conduct.

RAFFERTY, MR: No, none whatsoever because he does go so far as to say that he loved the complainant in that kind of way, except the fact that it wasn't a sexual thing, it was for comfort.

32 By way of rejoinder, Mr Keeley made two submissions. The first related to the weight that should be given to the pleas of guilty. In relation to the second, he said:

The other thing relates to the clearly delusional aspects to his relationship with the complainant and much of what occurred, in my submission, relates to that clearly delusional relationship.

He does have significant mental health issues. Whether or not they are diagnosed ... is really irrelevant. All of the authors of the two reports accept that they are there. What they are, we don't know, but in my submission, they have a great impact on the way in which he viewed his relationship with the complainant which directly led to the commission of the offences in the end. So that's all I wish to say about that.

33 In the course of his sentencing remarks, the sentencing judge said that he had taken into account the antecedent report, the pre-sentence report and the reports from Ms Bouse and Dr Watts. He quoted a passage from the report prepared by Ms Bouse which included the following:

During interview [the appellant] acknowledged responsibility for his offending behaviour although it was noted that he engaged in considerable justification for, and minimisation of, his actions. Of greatest note are the presence of numerous distorted and delusional beliefs that underpin [the appellant's] offending behaviour. The latter relates to beliefs that the 'spirits' gave the victim to him as a 'gift' as a means of payback for his wife's alleged affair. Such beliefs are clearly delusional and consistent with [the appellant's] claims that he has been diagnosed with schizophrenia and tends to be non-compliant with his medication when in the community.

34 The sentencing judge went on to say that much of what had been said by Ms Bouse in this passage was confirmed by Dr Watts. He then said:

Clearly, there are significant psychological difficulties experienced by you. We do not have a report from a psychiatrist who would be able to specifically deal with the issue, but that is not surprising since there is nothing to suggest that anything about your psychological makeup could be said to be causative of the offending behaviour nor minimise the significance of it.

35 Notwithstanding this last conclusion, the sentencing judge made some reduction to the sentence imposed on account of the psychological factors. He said that he had reduced the sentences by 25% 'to reflect [the appellant's] plea and personal and psychological factors'.

36 The sentencing judge had been placed in a difficult position by the absence of any psychiatric evidence to back up the appellant's claims. However, it seems plain from what he said that he was prepared to accept that the appellant had suffered from the delusions and beliefs of which he spoke and that these were consistent with his claims that he had been diagnosed with schizophrenia. It is also plain that he accepted that the appellant had been non-compliant with his medication when in the community. His conclusion that there was nothing to suggest that anything about the appellant's psychological makeup had been said to be causative of the offending behaviour or to have minimised the significance of it was presumably based upon his belief that neither psychological report had said this. However, as I have mentioned, Dr Watts had said that there was 'some significant mitigation for these very serious charges' arising from the appellant's mental state. I have also mentioned that he added that the appellant 'was not without some awareness that what he was doing was wrong'.

37 The issue of a causal connection between illness and offending was touched upon by this court in Thompson v The Queen [2005] WASCA 223; (2005) 157 A Crim R 385. The court said [53]:

Of course, moral culpability would only be lessened where there is a causal connection between the psychiatric illness and the commission of the offence or offences, in the sense that the psychiatric condition must have contributed to the commission of the offence: R v Richards [1999] WASCA 105; R v Paparone [2000] WASCA 127; (2000) 112 A Crim R 190 at [50] and [51] per Murray J; and R v Payne [2002] WASCA 186; (2002) 131 A Crim R 432 at [40]. It must necessarily be the case that, the greater the contribution of the psychiatric illness, the more the moral culpability will be lessened. To the extent that there is a moral lessening of culpability, that should be reflected in the penalty imposed, as it often has been: see, for example, R v Juli (1990) 50 A Crim R 31 at 37; R v Hurd [1988] TASSC 54; (1988) 38 A Crim R 454 at 461, 465; Tsiaras [[1996] 1 VR 398], at 400; R v Balchin (1974) 9 SASR 64 at 68; R v Reynolds (1983) 10 A Crim R 30; and Lauritsen v The Queen [2000] WASCA 203; (2000) 22 WAR 442 at 456 - 459.

38 A mental illness does not have to be the sole cause of the commission of a crime, or even a cause of the commission of the crime, in order to be relevant to sentencing: Benitez v The Queen [2006] NSWCCA 21; (2006) 160 A Crim R 166 [36]. In R v Engert (1995) 84 A Crim R 67, 71, Gleeson CJ said:

In truth however ... the question of the relationship, if any, between the mental disorder and the commission of the offence, goes to circumstances of the individual case to be taken into account in the application of the relevant principles. The existence of such a causal relationship in a particular case does not automatically produce the result that the offender will receive a lesser sentence, any more than the absence of such a causal connection produces the automatic result that an offender will not receive a lesser sentence in a particular case. For example, the existence of a causal connection between the mental disorder and the offence might reduce the importance of general deterrence, and increase the importance of particular deterrence or of the need to protect the public. By the same token, there may be a case in which there is an absence of connection between the mental disorder and the commission of the offence for which a person is being sentenced, but the mental disorder may be very important to considerations of rehabilitation, or the need for treatment outside the prison system.

39 It has long been held that, in the case of an offender suffering from a mental disorder or abnormality, general deterrence is a factor which should be given relatively less weight than in other cases because such an offender is not an appropriate medium for making an example to others: R v Letteri (Unreported, NSWCCA, 18 March 1992) (Gleeson CJ, Sheller JA & Badgery-Parker J) and the cases there cited.

40 In R v Tsiaras [1996] VicRp 26; [1996] 1 VR 398, 400 the court (Charles & Callaway JJA & Vincent AJA) said that serious psychiatric illness not amounting to insanity is relevant to sentencing in at least the following five ways:

First, it may reduce the moral culpability of the offence, as distinct from the prisoner's legal responsibility. Where that is so, it affects the punishment that is just in all the circumstances and denunciation of the type of conduct in which the offender engaged is less likely to be a relevant sentencing objective. Second, the prisoner's illness may have a bearing on the kind of sentence that is imposed and the conditions in which it should be served. Third, a prisoner suffering from serious psychiatric illness is not an appropriate vehicle for general deterrence, whether or not the illness played a part in the commission of the offence. The illness may have supervened since that time. Fourth, specific deterrence may be more difficult to achieve and is often not worth pursuing as such. Finally psychiatric illness may mean that a given sentence will weigh more heavily on the prisoner than it would on a person in normal health.

41 In Wright (1997) 93 A Crim R 48, 51, Hunt CJ at CL (with whom Hidden J agreed & Gleeson CJ generally agreed) said that, if an offender acts with knowledge of what he is doing and knowledge of the gravity of his actions, moderation of the consideration of general deterrence 'need not be great'.

42 In the present case Dr Watts (who, by his own admission, was not qualified to address areas of psychiatry) seems to have been prepared to accept that the appellant suffered from a mental illness that contributed to his offending behaviour although, as I have stressed, he added that the appellant was 'not without some awareness that what he was doing was wrong'. There can be no doubt concerning this last proposition. The psychological reports and the pre-sentence report reveal that the appellant knew that what he was doing was wrong, but persisted with it regardless. He denied that there had been any sexual conduct when he was questioned by police. His then counsel spoke, in the course of his sentencing submissions, of the appellant's 'embarrassment' at his actions and his realisation that 'the complainant has now been ruined'. While the appellant later sought to justify his conduct, to some extent, by reference to the 'voices' that he had heard, he was, on his own admission, able to disobey those voices when they urged him to inflict violence on his wife and family.

43 Although it was never proved that the appellant suffered from a psychiatric illness which contributed to his offending behaviour, the sentencing judge seems, as I have said, to have accepted that the appellant had, at the time, suffered from distorted and delusional beliefs. It is not clear whether, in saying that there was nothing to suggest that anything in the appellant's psychological makeup would be said to be causative of the offending or to minimise the significance of it, he rejected the evidence of Dr Watts that the appellant's mental health problems provided significant mitigation. Whatever may be the answer to that question, and regardless of whether those problems did or did not contribute to the appellant's offending behaviour, I would not, on that account, have imposed any different sentences, either individually or in total: s 31(4)(a) Criminal Appeals Act 2004 (WA).

44 The individual sentences imposed by the sentencing judge were sentences of 9 months' imprisonment on the count of indecent dealing and sentences varying between 18 months and 3 1/2 years' imprisonment on each of the counts of sexual penetration. Even allowing for some contribution by the appellant's mental health problems to the offending behaviour, and for the other factors in mitigation that were taken into account by the trial judge (being the personal factors to which he referred, the relatively late pleas of guilty and the positive steps taken by the appellant, while in custody, towards rehabilitation), those sentences were appropriate.

45 Any contribution to the appellant's offending behaviour by his mental health problems must have been small. This is apparent from his attempts to conceal his behaviour; from what was said by Dr Watts (to the effect that the appellant 'presented with insight and awareness of what was happening' and was 'not without some awareness that what he was doing was wrong'); from what was said by Ms Bouse (who said that the appellant's responses during testing clearly revealed his acknowledgement of his offending behaviour and acceptance of responsibility for what occurred and also that he was 'able to recognise the actual acts of sexual abuse as having been abusive'); and from what was said by the author of the pre-sentence report (who said that the appellant acknowledged responsibility for his offending behaviour, notwithstanding his attempts to minimise it). Moreover, each of the individual offences was serious. The range of sentences customarily imposed in respect of sexual offending of this kind demonstrate that the individual sentences imposed in this case were appropriate, even allowing for all of the factors to which I have referred: see the cases discussed in VIM v The State of Western Australia [2005] WASCA 233; (2005) 31 WAR 1 and listed in schedule A to the reasons of the court.

46 By the original ground of appeal, the appellant contends that the total sentence infringed the totality principle 'and as a result was manifestly excessive in all of the circumstances of the case'. Counsel for the appellant submitted in this respect that the sentencing judge failed to give sufficient weight to circumstances which, she contended, operate in his favour. These include the absence of aggravating features such as multiple victims, a high degree of deviancy or the victim being of a very young age. They also include the fact that there is nothing in the appellant's antecedents that would suggest that he is a repeat offender, the fact that he had made good progress with rehabilitation while in custody and the fact that the psychological reports suggested that his overall risk profile was low. We were referred to a number of cases which, it was contended, suggest that the total sentence imposed was beyond an acceptable range of discretion for offences of this character.

47 There are two limbs to the totality principle. The first is that the total effective sentence must bear a proper relationship to the overall criminality involved in all of the offences, viewed in their entirety and having regard to the circumstances of the case, including those that are personal to the offender: Woods v The Queen (1994) 14 WAR 341. The second is that the courts should not impose a 'crushing' sentence in the sense of one that destroys any reasonable expectation of a useful life after release: Martino v The State of Western Australia [2006] WASCA 78 [16]. An aggregate sentence may be inappropriately long under the first limb even if it is not crushing: Jarvis v The Queen (1993) 20 WAR 201, 216 (Anderson J). Where the totality principle comes into effect, it does not matter greatly how the ultimate aggregate sentence is made up: R v Holder [1983] 3 NSWLR 245, 260 (Street CJ).

48 In this case, the appellant's offending behaviour lasted for three years, commencing when the complainant was only 12 years old. Accepting, as the sentencing judge seemingly did, that the appellant suffers from a mental illness, there is, as I have said, little to suggest that this substantially reduced his culpability. I have stressed that it is obvious from the psychological reports that the appellant knew that what he was doing was wrong, but persisted with it. His childhood problems provide some explanation for his offending behaviour. However, they do little to excuse it.

49 I have said that the appellant has made some progress with rehabilitation while in custody. I have also said that his risk profile has been assessed as low. However, as I have stressed, he still shows limited insight into, and limited remorse for, his offending behaviour. That is obvious from the justifications for it that he continues to offer and from his attempts to blame the complainant.

50 The only other factor providing any substantial mitigation is the appellant's pleas of guilty. I have said, in this respect, that he initially denied any wrongdoing and that it was not until August 2006 that he made a partial admission to his wife. This was made only after she had discovered a locked box in a shed containing condoms. The complainant had told her of the existence of this box.

51 Offences involving penetration of a young child in circumstances involving an abuse of trust are so serious that less weight should be given to mitigating factors personal to the accused than would otherwise have been the case: The Queen v Leggett [2000] WASCA 327 [21] (Wheeler J). In the State of Western Australia v Rock [2007] WASCA 121 the court said [11]:

Sexual offences against children are self-evidently very serious. The consequences for the victims of such crimes are ordinarily devastating and enduring ... The dominant sentencing considerations are punishment, general and personal deterrence and the protection of children who, because of their lack of experience and, often, judgment, are vulnerable.

52 The repetitive nature of the offending is also a significant consideration. In VIM the court said [294]:

When one comes to consider totality considerations, then, a relevant factor is that, as the amount of offending increases, so too the likelihood of very significant harm to the victim ... is dramatically increased. In the majority of such cases, cumulation of sentences is therefore to be expected, to reflect the increasing severity of effect upon the victim; as well as to reflect the fact that the offender has not simply given way to an impulse on an occasion, but has chosen repeatedly to commit serious offences.

53 In that case, the court considered sentences that had been imposed in cases decided between 1999 and 2005 in which the offender had pleaded guilty to multiple sexual offending against children. In the majority of the cases considered, there had been at least one count of penile penetration. The court confirmed [288] that there had been a 'firming-up' of sentences in such cases as the courts had gained a better understanding of the long-term effects of this kind of offending upon the children concerned. It concluded [309] that, in cases of the kind under consideration, the most common sentence one would expect to see would be approximately 6 years and 8 months' imprisonment. The court also said [309] that about two-thirds of sentences in cases of the kind discussed would fall within the range of 6 years and 8 months' to 12 years and 8 months' imprisonment.

54 Although there is, for obvious reasons, no tariff in relation to sexual offences, cases involving intra-familial sexual abuse have typically attracted greater sentences of imprisonment than those in which the abuse has occurred outside the family. In Woods (354) Anderson J said that cases involving sexual assaults on young children within the family had attracted sentences of between 8 and 12 years in total (prior to the operation of the transitional provisions enacted by the Sentencing Legislation Amendment and Repeal Act 2003 (WA)). He said that these were cases often, but not always, involving more than one victim and multiple offending over an extended period and which encompassed sexual penetration or some degree of violence, cruelty, aggression or threats. However, that case was decided some 11 years prior to VIM, in which (as I have said) the court confirmed that there had more recently been a firming-up of sentences in such cases.

55 A number of the more recent cases have involved offending by a stepfather. Webb v The Queen [2003] WASCA 266 provides an example. That case involved sexual offences by the appellant against his step-daughter over a period of some three and a half months. The complainant was aged 14 and the appellant was 38. The appellant pleaded guilty to seven offences. Five of these involved various kinds of indecent dealing, one involved digital penetration and one involved cunnilingus. The appellant had at first pleaded guilty to four counts of indecent dealing and to one count involving cunnilingus. Then, he asked the police to re-interview him as he had further confessions he wished to make. He told them of the additional offence of indecent dealing and also of the offence of digital sexual penetration. The appellant suffered from low self-esteem and depression. He had no other psychological illness. He showed a high degree of contrition. He presented with a medium to low risk of re-offending. A total term of 8 years' imprisonment was imposed (5 years and 4 months after the operation of the transitional provisions). On appeal, this term was described as 'comparatively lenient in all the circumstances' ([30], Malcolm CJ).

56 In Rogers v The Queen [2004] WASCA 147 the appellant, who was the complainant's stepfather, was convicted, after pleading guilty, of two counts of penile penetration of the 8-year-old complainant's vagina. The pleas of guilty came late, on the day that the court convened to record the complainant's evidence in advance of the trial. The appellant had no prior criminal record. The court imposed sentences of 8 years' imprisonment on each count (5 years and 4 months after taking into account the transitional provisions) to be served concurrently. On appeal, the sentences were upheld (by Malcolm CJ & Miller J, Templeman J dissenting).

57 In PDS v The State of Western Australia [2006] WASCA 20 the appellant, who was the complainant's stepfather, sexually abused the complainant over a number of years when she was between the ages of 12 and 16. The appellant was convicted, after a trial, on one count of penile/vaginal penetration, one count of digital penetration of the complainant's anus, one count of anal/penile penetration, one count in which the complainant performed oral sex upon the appellant and two counts in which the appellant performed oral sex on the complainant while asking her to perform oral sex upon him. The appellant was sentenced to an overall term of 12 years' imprisonment.

58 After referring to VIM, the court in PDS (Wheeler, Roberts-Smith & Pullin JJA) said [28] that it appeared 'that it would often be the case that a term of somewhere between 10 and 19 years, imposed after trial and after allowance for the transitional provisions, would be within the range of sentences usually imposed' for offending of that kind. However, the court added that, where there are relatively fewer counts and more limited offending, some reduction in the aggregate term might be expected. The appellant in PDS had no other relevant convictions. He was 40 years old at the time of his offending behaviour. As a child, he had experienced domestic violence perpetrated by his father upon his mother. He showed no remorse for his offending and continued to deny the offending. The court concluded [31] that a sentence of 12 years' imprisonment, 'while perhaps severe, when regard is had to the relatively limited number of counts ... was not disproportionate to the totality of the offending for which the appellant fell to be sentenced, having regard to sentences generally imposed in respect of offending of a similar kind'.

59 In M v The State of Western Australia [2006] WASCA 256 the appellant, who was the complainant's stepfather, offended against the complainant over a period of two months. She was then 12 years old. The appellant was 37 years of age. The offending behaviour comprised seven counts of indecent dealing, 15 counts of sexual penetration and three counts of procuring the child to engage in sexual behaviour. The appellant indicated an intention to enter pleas of guilty to all counts approximately four months after being charged and subsequently did so. He had had a difficult childhood, having been mistreated by his parents. He had been sexually abused by the manager of a local service station, where he was employed between the ages of 12 and 17. Not long before the offending, one of his younger siblings had committed suicide. The appellant's wife had become ill, spending time in Graylands. The appellant had found it difficult to cope. He resorted to excessive use of alcohol and cannabis and this continued over the period of offending. He understood the wrongfulness of his actions, accepted responsibility and was genuinely remorseful. He had taken steps to correct his behaviour. He was considered to be at low risk of re-offending. He was sentenced to a total term of 10 years' imprisonment. On appeal, the court [30] regarded the sentence as severe, but not outside an appropriate range.

60 We were referred to a number of other cases, in some of which lower sentences were imposed for similar offending. However, the cases to which I have referred are sufficient to establish that the total sentence imposed in this case is within the range of sentences customarily imposed in such cases, even allowing for the mitigation presented by the appellant's pleas of guilty, mental health problems and the other matters to which I have referred.

61 As I have said, these offences were very serious, given that the offending persisted for three years and involved a wide range of sexual conduct. The appellant took advantage of a child who trusted him, for the purposes of his own sexual gratification, in circumstances in which he showed a callous indifference to her vulnerability. While he does show some degree of remorse, he continues, effectively, to blame the complainant for his own shortcomings and to rationalise his conduct. In the circumstances (even accepting that the appellant suffers from a mental illness that made some contribution to his offending behaviour), I am not persuaded that the total sentence imposed was excessive having regard to

the overall criminality involved and having regard to all of the circumstances of the case, including those personal to the appellant. Nor am I persuaded that the sentence is crushing in the sense to which I have earlier referred. I would not have imposed any different sentence.

62 Because the notice of appeal was lodged some three months out of time, the appellant requires an extension of time for that purpose. The delay has been adequately explained and, in circumstances in which the appeal appears to me to have been arguable, I would grant the necessary extension and give leave to appeal. However, I would dismiss the appeal.

Legislation Amendment and Repeal Act 2003

F -v- THE STATE OF WESTERN AUSTRALIA [2008] WASCA 100 (30 April 2008)

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Judgment (83 paragraphs)

F -v- THE STATE OF WESTERN AUSTRALIA [2008] WASCA 100 (30 April 2008)

Legislation Cited (2)

Cases Cited (5)