Criminal law - Leave to appeal against sentence - Indecent dealing with a child under 13 years of age who is the appellant's de facto child - Whether count 2 manifestly excessive - Whether first limb of the totality principle infringed

Criminal Appeals Act 2004 (WA), s 27(1), s 27(2)

Giglia v The State of Western Australia [2010] WASCA 9

KS v The State of Western Australia [2011] WASCA 85

L v The State of Western Australia [2007] WASCA 186; (2007) 176 A Crim R 135

P v The State of Western Australia [2007] WASCA 220; (2007) 177 A Crim R 69

R v Chilvers [2003] WASCA 87

RMS v The State of Western Australia [2010] WASCA 76

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

Royer v The State of Western Australia [2009] WASCA 139

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

2 This is an application for an extension of time and for leave to appeal against sentence.

3 The applications are, at the request of the appellant, to be dealt with on the papers, including the appellant's written submissions.

4 The appeal was lodged 25 days out of time. The delay has been adequately explained. The extension of time should be granted.

5 On 23 September 2010, some 2 weeks before his scheduled trial, the appellant pleaded guilty to three counts of indecent dealing with a child under 16 who was his de facto child, contrary to s 329(4) of the Criminal Code (WA). The maximum statutory penalty for this offence is 10 years' imprisonment: s 329(10)(a) of the Criminal Code.

6 On 30 November 2010, the prosecutor tendered the prosecution brief and read to the court a statement of material facts. Defence counsel admitted the facts.

7 On 16 December 2010, after hearing the parties' submissions on sentence, the learned sentencing judge imposed a total effective sentence of 3 years' immediate imprisonment with eligibility for parole. The sentences were as follows:

8 There are two grounds of appeal each of which allege implied error on the part of the sentencing judge. The first ground alleges that the

sentence imposed on count 2 was manifestly excessive. The second ground alleges that the total overall sentence contravenes the totality principle, because it was disproportionate to the appellant's overall offending.

9 These grounds must be considered having regard to the well-known appellate sentencing principles set out in Wilson v The State of Western Australia [2010] WASCA 82 [2]. Leave to appeal is required on each ground. This court must not grant leave unless the ground has a reasonable prospect of succeeding: s 27(1) and s 27(2) of the Criminal Appeals Act 2004 (WA).

10 The facts are as follows. At the time of the offending, the appellant was 40 years old and the victim was 8 years old. The victim was the appellant's stepdaughter. The appellant was married to the victim's mother. The appellant, the victim and the victim's mother lived in the same house.

11 In approximately March 2009, the appellant and the victim were having a shower together. The appellant had previously showered with the victim with the victim's mother's knowledge. While in the shower, the appellant took hold of the victim's hand and placed it on his penis and forced her to masturbate him to ejaculation (count 1).

12 On another occasion, in about March 2009, the appellant and the victim were once again showering together. While in the shower, the appellant passionately kissed the victim on the lips (count 2). In a visually recorded interview on 24 August 2009, the victim said that the appellant gave her 'a tonguey' and that he kissed her for about a minute. The victim's mother entered the bathroom and the conduct stopped.

13 On 20 August 2009, the appellant and the victim were alone in the lounge room watching television. The victim's mother was in a bedroom. The victim was sitting on the sofa behind the appellant, giving him a back massage. The appellant reached around and grabbed the victim's hand and pulled it to his groin area underneath his tracksuit. He then forced her to masturbate him. The appellant stopped when the victim's mother came into the room and surmised what had occurred (count 3).

14 The appellant was interviewed on 21 August 2009 by police officers. He denied counts 1 and 3. He admitted count 2, saying that the victim had asked him to show her how to kiss a boy.

15 The sentencing judge took into account pre-sentence and psychological reports with respect to the appellant. In both reports it was noted that despite his pleas of guilty, the appellant denied committing counts 1 and 3. The pre-sentence report author noted that although the appellant admitted kissing the victim, he did not express any remorse for doing so.

16 The reports showed that the appellant was a person of previous good character. He had no prior record of convictions, a good employment history and enjoyed the support of his sister and current partner. References tendered on his behalf spoke well of him.

17 The psychological report revealed that the appellant had ongoing problems with anxiety and depression. It was said that at the time of the offending, the appellant was experiencing difficulties in his relationship with the victim's mother, and grief, after the death of his own mother in 2006. The psychologist described the appellant's alcohol use as 'problematic' and said that he 'continues to rely on alcohol use to help him cope with stress'. The psychologist expressed the appellant's likelihood of reoffending in a similar manner as low.

18 His Honour was provided with a victim impact statement written by the victim's mother. It is apparent from that statement that the victim has been significantly affected by the appellant's offending.

19 In his sentencing remarks, his Honour described all the offences as serious. He appropriately observed that the offences constituted a serious breach of trust and that the appellant, rather than protecting the victim, had taken advantage of her. His Honour gave mitigatory weight to the appellant's pleas of guilty, prior good character and the personal difficulties that the appellant was encountering at the time of his offending.

20 His Honour referred to the need to provide personal and general deterrence.

21 His Honour concluded that each offence was so serious that the only appropriate disposition was a term of imprisonment. He considered the question of suspension, but decided that the seriousness of the offending, coupled with the need for personal and general deterrence, made suspension inappropriate. His Honour expressly referred to and applied the totality principle by ordering that the sentence on count 3 be served concurrently with the sentences imposed on counts 1 and 2.

22 In support of ground 1, the appellant submitted that the sentence on count 2 was outside the range of a sound sentencing discretion. It was said that the seriousness of the offence was at the lower end of the spectrum for offences of this kind because the circumstances were 'not overly sexual' and 'involved no aspect of genital touching'. It was submitted that, having regard to the decision of this court in KS v The State of Western Australia [2011] WASCA 85, the sentence was manifestly excessive. It was submitted that the offence did not warrant a term of immediate imprisonment or, if it did, the length should be less than 16 months.

23 With respect to ground 2, it was said that the learned sentencing judge failed to have any or any adequate regard to the totality principle. The appellant submitted that the total overall sentence was too much because:

(a) the offences were not committed in 'seriously aggravating circumstances';

(b) of the appellant's prior good record and personal circumstances at the time of the offending; and

(c) it was outside the range of sentences imposed in what was said to be broadly similar cases, namely RMS v The State of Western Australia [2010] WASCA 76; and L v The State of Western Australia [2007] WASCA 186; (2007) 176 A Crim R 135.

Discussion and resolution of the grounds of appeal

24 The real question to be resolved in this appeal is whether the total effective sentence offended the totality principle: Giglia v The State of Western Australia [2010] WASCA 9 [40]; Royer v The State of Western Australia [2009] WASCA 139. Accordingly, I will deal with ground 2 first.

25 In light of his Honour's express reference to the totality principle, the submission that his Honour failed to have any regard to the totality principle is patently wrong. If the ground has any merit, it is only on the basis that his Honour failed to properly apply the totality principle.

26 The totality principle comprises two limbs. The first limb is that the total effective sentence must bear a proper relationship to the overall criminality involved in all the offences, viewed in their entirety and having regard to all the circumstances of the case, including those referable to the offender personally. The second limb requires a sentencer not to impose a total effective sentence that is crushing, in the sense that it destroys any reasonable expectation of a useful life after release: Roffey v The State of Western Australia [2007] WASCA 246 [24] - [25]. The appellant alleges a breach of the first limb.

27 The appellant's overall offending was serious. The appellant forced the victim to masturbate him on two separate occasions. On the first of those occasions he ejaculated. The kiss was plainly sexual in nature. The appellant's overall behaviour was deliberate, selfish and sought to sexually exploit an 8-year-old girl. It was seriously aggravated by what can only be termed a gross breach of trust. Because of the need to provide deterrence and protection for young children in offending of this kind, the appellant's good antecedents and personal circumstances do not carry as much mitigatory weight as they do in other cases: R v Chilvers [2003] WASCA 87 [25]. Although the appellant's late pleas of guilty are mitigatory, they could not be said to reflect genuine remorse on the part of the appellant. He does not appear to have any real insight into the harm his offending has caused.

28 The appellant's submissions emphasised that the offending did not involve the use of:

However, the absence of such aggravating circumstances does not diminish the seriousness of the appellant's behaviour.

29 The submissions with respect to RMS v The State of Western Australia and L v The State of Western Australia are misconceived and without merit. They reflect a misunderstanding of the difference between a challenge to individual sentences on the basis of implied error (manifest excess) and a challenge to the total sentence on the basis of implied error (under the totality principle).

30 The appellant's approach to these cases was to select from each of them particular individual sentences and compare them to the individual sentences imposed in the present case, to advance an argument that the sentences here were outside the range of sentences customarily imposed for broadly similar offending.

31 This approach is erroneous. While a court will examine other cases to ensure broad consistency in sentencing, two cases are an insufficient number to establish a range of sentences customarily imposed. Further, the individual sentences chosen by the appellant as comparators were overly selective and ignored that they were plainly affected by totality and other considerations. Among those other considerations was that the pleas of guilty in RMS and L were entered at an early stage in the proceedings, unlike the present case.

32 The cases cited by the appellant do not establish that any of the individual sentences or the total overall sentence were outside the range of sentences imposed for broadly similar offending.

33 Although there is no tariff for sexual offences, it is unusual for an offender not to be sentenced to immediate imprisonment for multiple offences of indecent dealing involving a breach of trust on a victim who is in a lineal or de facto relationship with the offender: P v The State of Western Australia [2007] WASCA 220; (2007) 177 A Crim R 69 [35] - [36].

34 Having regard to all of the circumstances of the case, including the nature of the appellant's acts, their repetition and the gross breaches of trust, it cannot reasonably be asserted that the total overall sentence contravenes the first limb of the totality principle. His Honour correctly applied the totality principle by ordering the sentence on count 3 be served concurrently with the sentences he imposed on counts 1 and 2. Three years' imprisonment was a just and appropriate measure of the total criminality involved. Ground 2 has no reasonable prospect of success.

35 Insofar as it is necessary to decide ground 1, it too has no reasonable prospect of success. When put in its proper context, the offending in relation to count 2 was serious. The appellant, whilst naked in a shower, passionately kissed an 8-year-old girl who was his stepdaughter. The submission that the conduct was 'not overly sexual' is unsustainable.

36 The case cited by the appellant, KS v The State of Western Australia, does not assist the appellant. In that case, the appellant pleaded guilty to three counts of indecent dealing and two counts of sexual penetration of a child between the ages of 13 and 16 years. Each count of indecent dealing involved the appellant fondling the victim's penis, while the offences of sexual penetration involved the appellant performing fellatio on the victim. At first instance, the appellant was sentenced to 12 months' imprisonment for each of the indecent dealing offences, and 2 years and 8 months' imprisonment for each of the offences of sexual penetration. On appeal, the sentences were reduced to 8 months for the offences of indecent dealing and 1 year and 8 months for the offences of sexual penetration. The total overall sentence was reduced from 4 years and 8 months to 3 years.

37 Although the overall offending in that case was more serious than in the present case, there were substantial mitigating factors present in that case that are absent here. In KS, the appellant pleaded guilty on the fast-track system. In addition, he voluntarily disclosed offending which had not been mentioned by the complainant and would not have, in all likelihood, come to light without those disclosures.

38 Contrary to the appellant's submissions, the imposition of an immediate term of imprisonment of 16 months for count 2 in the present case was, in all of the circumstances of the case, an appropriate exercise of a sound sentencing discretion.

39 The appellant has failed to demonstrate arguable error on the part of the sentencing judge. Neither ground of appeal has a reasonable prospect of success. Accordingly, the appeal must be dismissed.

1. An extension of time within which to appeal is granted.
2. Leave to appeal is refused on both grounds.
3. The appeal is dismissed.