Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA

Criminal law - Extension of time for leave to appeal against sentence - Multiple sexual offences - Whether total sentence infringed the totality principle - Turns on own facts

Bosworth v The Queen [2004] WASCA 43

Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321

Mallet v Mallet [1984] HCA 21; (1984) 156 CLR 605

Merino v The Queen [2003] WASCA 18

Pendleton v The Queen [2002] WASCA 4

S v The Queen [2004] WASCA 113

Trescuri v The Queen [1999] WASCA 172

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

Woods v The Queen (1994) 14 WAR 341

Gavin v The Queen (1992) 6 WAR 195

Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665

R v Peterson [1984] WAR 329

R v Tait (1979) 46 FLR 386

Re The State of Western Australia; Ex parte Garrett [2005] WASCA 192

Samuels v Western Australia [2005] WASCA 193; (2005) 30 WAR 473

Stipanich v The State of Western Australia [2005] WASCA 145

Stretton v The Queen, unreported; CCA SCt of WA; Library No 950282; 1 June 1995

1 WHEELER JA: I have had the advantage of reading in draft the reasons for decision of McLure JA. I agree with those reasons and have nothing to add.

3 McLURE JA: The appellant seeks an extension of time for leave to appeal against sentence. He was convicted on his own plea of guilty on 22 counts as follows:

- 3 counts of sexual penetration of a child under 13 years;

- 1 count of showing offensive material to a child under 16 years;

- 2 counts of indecently dealing with a child under 13 years;

- 1 count of procuring a child under 13 years to do an indecent act;

- 5 counts of indecently recording a child under the age of 13 years;

- 8 counts of indecently recording a child of between 13 and 16 years.

4 On 2 October 2002, the appellant was sentenced to a total effective sentence of 11 years' imprisonment. He was made eligible for parole. The appellant was sentenced prior to the commencement of the Sentencing Legislation Amendment and Repeal Act 2003 (WA). The sentence of 11 years' equates to a sentence of 7 years and 4 months under the current sentencing regime. As there is no complaint about the individual sentences I do not propose to detail them.

5 The Court will require exceptional circumstances to be demonstrated before granting an extension of time of the magnitude required by the appellant unless it can be shown that there will be a miscarriage of justice if an extension is not granted. Accordingly, it is necessary to consider the merits of the proposed appeal. The proposed grounds of appeal are that (1) the total effective sentence is manifestly excessive, (2) the sentencing Judge failed to give sufficient weight to the fast track plea of guilty and (3) the total sentence breached the totality principle having regard to the appellant's background, remorse and willingness to undergo treatment.

6 The facts of the offending are as follows. After school on 5 July 2002 the complainant who was 8 years old and lived with his parents, left the house after an argument with his mother. He walked to nearby bushland and was followed into the bush by the appellant. The appellant befriended the complainant and later enticed him to return to his unit at Shoalwater where he detained him with the intention of utilising the complainant for his sexual gratification. Whilst in the bedroom of the appellant's unit, the appellant had the complainant watch a pornographic video. The appellant then performed fellatio on the complainant for about 5 minutes. The appellant then licked and inserted his tongue into the complainant's anus and continued to do so notwithstanding requests from the complainant to stop. The complainant remained with the appellant overnight. In the course of the night the appellant masturbated the complainant with his hand and made the complainant masturbate the appellant until he ejaculated. Later, the appellant masturbated on top of the complainant's naked stomach. On occasions the appellant placed butter on both his own and the complainant's penis to assist in lubricating the penis whilst masturbating. During the night the appellant also digitally penetrated the complainant's anus with his fingers. The counts in the indictment are representation counts. The appellant also took five polaroid photographs of the complainant in sexually explicit positions whilst naked. In exchange for the photographs the appellant gave the complainant a bicycle and helmet. The appellant had stolen the bicycle. The complainant, who had been reported to police as a missing person, was located riding the bicycle on the streets of Shoalwater at about 3 pm on 6 July 2002.

7 The 8 counts of indecently recording a child of between 13 and 16 years occurred in the period between June 1999 and May 2001. The photographs were of young naked boys with erect penises lying on a bed. The appellant admitted to police that he had taken the photographs for his own sexual gratification and had the boy in question in each case pose in return for cash.

8 The appellant was aged 44 at the time he committed the offences in July 2002. The appellant has had a particularly tragic life. He was a victim of severe domestic violence and sexual assault at the hands of his father who completely rejected him at an early age. He was incorrectly placed in a school for autistic children at the age of about 8 or 9. After running away from a foster home at age 12 he was placed in a boys home in Sydney where he was sexually abused by a male in a position of trust over a number years. At the age of 17 his brother died of leukaemia. At about the same time his father perpetrated an act of extreme violence upon his mother to which the appellant was a witness. This resulted in him shooting and killing his father. The appellant and his mother served over 4 years in custody before being released on licence in New South Wales as a result of public representations.

9 When the appellant was about 26 his mother and younger brother died. His mother died in a house fire and his brother in a motor vehicle accident. In 1992 a woman with whom he had a sexual relationship gave birth to a son and she stated he was the father. His son died in January 2002 of meningitis. Following the death of his mother and brother in 1984 the applicant commenced drinking heavily. The heavy use of alcohol escalated following the death of his son. He drank on a daily basis for most of his waking hours. He suffered blackouts in relation to his drinking. The appellant said he could not remember the offences against the 8-year-old complainant and must have experienced an alcoholic blackout. In August 2002, following the offending in July 2002, he tested HIV positive. The appellant has a record of prior convictions, three of which are for minor sexual offences not involving children.

10 The psychological report before the sentencing Judge noted that the appellant displayed an extensive normalisation of inappropriate sexual activities with young boys, stating that he had been involved sexually at a young age and therefore it must be a normal occurrence. The sentencing Judge accepted that the appellant was remorseful and willing to undertake treatment to deal with his sexual attraction to young males. He also found that at the time of sentencing the appellant represented a significant danger to the community.

11 A challenge to the length of a total sentence for multiple offences that depends on an inference of implied error should be based on a breach of the totality principle. The manifest excess principle applies to a challenge to an individual sentence.

12 The second ground of appeal has no merit as an independent ground. A failure to give proper weight to a relevant sentencing consideration only gives rise to an appealable error if it amounts to a failure to exercise the discretion actually entrusted to the court: Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321 at 330 approving the statement of Gibbs CJ in Mallet v Mallet [1984] HCA 21; (1984) 156 CLR 605 at 614. That is a very high threshold that is rarely satisfied and is not met in this case. However, the appellant's fast track plea of guilty is to be taken into account in considering totality.

13 The totality principle requires the total effective sentence imposed on an offender to bear a proper relationship to the overall criminality involved in the various offences, viewed in their entirety and having regard to the circumstances of the case, including those referable to the offender personally: Woods v The Queen (1994) 14 WAR 341 at 352 per Anderson J. The issue is whether the total sentence of 11 years is too long notwithstanding that the individual sentences when considered separately are appropriate.

14 The sentencing principles and authorities concerning sexual offences of children are detailed in VIM v Western Australia [2005] WASCA 233; (2005) 31 WAR 1. As that case makes clear, offences involving sexual abuse of children are very serious and the dominant sentencing considerations are general and personal deterrence and the protection of children. Mitigatory factors are accorded less weight.

15 The appellant relies on his tragic past in mitigation of his offending and in support of the proposition that the total sentence is too long. His history points in different directions from a sentencing perspective. The multitude of personal tragedies which no doubt contributed to his alcoholism and sexual deviancy may be seen as reducing his moral culpability. On the other hand, it has also had the consequence that the appellant is a danger to young boys because of what the psychologist described as the appellant having an extensive normalisation of inappropriate sexual activities with young boys. According to the psychologist, the appellant's understanding of what is appropriate conduct is inconsistent with legal and community norms. The danger is amplified because of the disinhibition and blackouts associated with the appellant's excessive alcohol consumption. The sentencing Judge, properly in my view, gave significant weight to the need to protect the community. The entrenched causes of the appellant's offending and his frequent memory failures are relevant to an assessment of the prospect of successful treatment. However, it is indeed mitigatory that the appellant was remorseful and willing to undergo treatment.

16 As to the seriousness of the offending against the 8-year-old complainant, the appellant relies on the fact that it occurred over a relatively short period and there was no penile penetration. Although the offending occurred over a relatively short period, the offending was at a high level of intensity having regard to the nature and number of the offences. Repeated abuse over an extended period is an indicator of the extent to which an offender is a risk to the community. There was other evidence in this case on which the sentencing Judge could assess the extent to which the appellant was a risk to the community.

17 Ordinarily, penile penetration is regarded more seriously than other forms of sexual penetration. However, that does not lessen the seriousness of the circumstances of the offending in this case. Further, although there was no breach of a relationship of trust, a fact that aggravates sexual abuse of children, the appellant's conduct in targeting and enticing a child at random in a public place also aggravates the seriousness of the offending in this case.

18 The appellant relied on Pendleton v The Queen [2002] WASCA 4 in support of his claim that the total sentence was too long. The offender in that case was sentenced to a total effective sentence of 12 years for multiple offences, including 20 counts of indecent dealing with a child under the age of 13 years, 18 counts of procuring a child under the age of 13 years to do an indecent act, 9 counts of sexual penetration of a child under the age of 13 years and 76 counts of indecent recording of a child under the age of 13 years. The appellant was a pre-primary school teacher. The indecent acts, dealings and assaults related to one complainant. The offending was captured on two scenes in a video tape. It is unclear whether the sexual misconduct took place over an extended period. The victims were 11 young girls aged between 4 and 5. Ten of the victims were the subject of indecent recordings. The Crown case was that most of the complainants were innocent as to the nature of the photographs being taken of them and as to the reasons for their being taken. The offender pleaded guilty, had no relevant prior convictions and was willing to undergo treatment.

19 The court in Pendleton, correctly in my respectful opinion, characterised the complainants who were indecently recorded as victims. There were also multiple victims of the appellant's offending which took place between June 1999 and July 2002. As in Pendleton, the sexual assaults whilst very serious, did not include penile penetration. Further, as a result of the totality principle, there is not a direct correlation between the total sentence and the number of individual offences. As already noted, the appellant's history does not have a net mitigatory effect. In my view, it cannot be said that the total sentence of 11 years for the appellant's offending is inconsistent or materially out of line with the sentence of 12 years for the offender in Pendleton. Moreover, a single case cannot be used for the purpose of identifying whether a total sentence is too long because it is outside the range of sentences customarily imposed for multiple sexual offences. I have considered the cases listed in Schedule A in VIM (supra) including S v The Queen [2004] WASCA 113, Trescuri v The Queen [1999] WASCA 172, Merino v The Queen [2003] WASCA 18 and Bosworth v The Queen [2004] WASCA 43. A review of the cases establishes that the total sentence of 11 years is at the upper end but not outside the range of sentences imposed for multiple sexual offending of this order of seriousness. As the appeal must fail, I would refuse to grant an extension of time. Accordingly, the application will be dismissed.