GSO -v- THE STATE OF WESTERN AUSTRALIA [2021] WASCA 58 (1 April 2021)

1. Following the appellant's convictions on 21 January 2020, the prosecutor prepared a summary of facts with which defence counsel agreed.[8] The summary of facts sets out the facts relating to the four counts, as well as the uncharged acts.[9]
2. All of the offences were committed at the appellant's family home in a suburb in Perth. At all relevant times, the appellant lived there with his wife and different members of his family and slept in the lounge room of the home which he treated as his bedroom. The lounge room, the dining room area and the kitchen were all part of an open‑plan area. The bedrooms in the house were off a hallway, which led straight into the open‑plan area.[10]
3. In relation to count 1, K, who was the appellant's step‑granddaughter, was aged between 6 or 7 years old. On an occasion in 2012, when she was asleep in her bedroom, the appellant entered the room and disturbed her by moving the blankets. He then pulled her pants down and touched her vagina with his hands. K began to cry and the appellant left the bedroom. K pulled up her pants and went to find her mother. Instead, K found a person whom she referred to as 'Uncle' in his room. He told her to return to her bedroom and go back to sleep.[11]
4. Count 2, which also involved K, occurred when she was about 12. On this occasion, K was in her room doing homework. She decided to go to the kitchen to get a drink. She walked down the hallway and, upon entering the open‑plan area, saw the appellant, on the couch in the lounge room with no pants on, masturbating. The appellant did not stop what he was doing when K entered the area. Upon seeing what the appellant was doing, K went back to her bedroom.[12]
5. In relation to count 3, a girl, S, who was aged 11 or 12, was staying at the appellant's house for a sleepover. She had been to the appellant's place for a sleepover before. During the night, S went to the kitchen to get macaroni cheese from the fridge. When she got there, she saw the appellant on the floor in the lounge room, masturbating under a blanket. S saw the appellant's hand on his penis and she saw his pants going up and down and his hand moving. The appellant looked at her and masturbated when S was present. Neither the appellant nor S said anything. S turned around and returned to her room.[13]
6. In relation to count 4, a girl, R, was about 12 years old at the time of the incident. She was staying in the appellant's home for a sleepover. During the sleepover, R went to get a drink. She did not know where the cups were, so she went into the lounge room area to ask the appellant. He was sitting on the couch watching television and R observed him masturbating. His Honour accepted R's evidence that the appellant was masturbating underneath his clothes, but she was able to see his erect penis. R got a glass of water and went back to her bedroom and told K what the appellant was doing.[14]

1. His Honour found that the appellant committed the following uncharged acts.
2. In respect of K, on separate occasions:[15]

(a) The appellant touched and then sucked or licked on K's breast, telling her that it was 'practice for something'.

(b) While K was watching television, the appellant touched her and attempted to put his hands underneath the pants she was wearing. K pushed his hand away and went straight to her bedroom.

(c) K came home from school one afternoon and saw the appellant in the garage masturbating. K was so upset by what she had seen that she wrote a letter which she gave to an aunt.

(d) When K was either 12 or 13, she went into the kitchen and saw the appellant masturbating on the couch. On this occasion, K was accompanied by her sister, N. K wrote a letter to the appellant's wife, stating what she had seen.

(e) K, in company with another child, C, went into the kitchen at the appellant's house to eat icy poles and saw him masturbating in the lounge room. The other child told her mother what she had seen.

1. There were also two uncharged acts involving N when she was 8 years old. On both occasions, N saw the appellant masturbating in the lounge room.[16]

1. The appellant was 61 years old when he was sentenced.[17]
2. After completing year 12, the appellant completed an apprenticeship as a cabinetmaker. After working in that trade for a period of time, he obtained tertiary certificates in business. He was employed for lengthy periods with Australia Post, BP and Coventrys.[18]
3. The appellant has five adult children. He effectively ran his household after his wife became seriously ill. Later, as a consequence of one of his sons and his daughter‑in‑law having severe problems with substance abuse, the appellant and his wife acted as parents for the grandchildren, including K and N.[19]
4. The appellant has no prior criminal history.[20]
5. The sentencing judge accepted that the appellant was a person of prior good character.[21]

1. The sentencing judge characterised the appellant's offending as 'very serious'.[22] He observed that the offending was not entirely opportunistic and occurred 'on and off over a lengthy period of time of about five years'.[23] His Honour said that the offending with respect to K involved 'a degree of persistence'.[24]
2. His Honour stated that the offending was 'seriously aggravated' because it involved a breach of trust.[25] The sentencing judge described K and N as being in 'very vulnerable circumstances'.[26]
3. His Honour found that there was no evidence of any remorse on the appellant's part. He observed that there was nothing before the court to indicate, one way or another, whether the appellant posed a risk of further offending against children.[27]
4. His Honour referred to the general sentencing principles applicable to offences of the type committed by the appellant which emphasise the objectives of proper punishment, specific and general deterrence and the protection of vulnerable children.[28]
5. His Honour found (as defence counsel had conceded in his sentencing submissions) that the only appropriate sentence for each of the offences was an immediate term of imprisonment.[29] After imposing individual sentences for each offence, his Honour had regard to the totality principle.[30] He concluded that, having regard to all of the relevant sentencing considerations, the appropriate total effective sentence was a term of immediate imprisonment of 5 years.[31]

The learned sentencing judge erred in law by treating uncharged acts as separate offences for sentencing purposes rather than simply providing context for the offences the appellant was convicted of.

1. By ground 1, the appellant contends, in essence, that the sentencing judge punished the appellant for the conduct that constituted the uncharged acts and thus infringed the principle in De Simoni.
2. In support of this submission, the appellant pointed to excerpts from the sentencing remarks which showed, it was said, that 'his Honour went beyond treating the uncharged acts as merely providing context and effectively treated them as separate offences'.[33]

1. As explained by Gibbs CJ (Mason J agreeing) in De Simoni, it is a 'fundamental and important principle, that no one should be punished for an offence of which he has not been convicted'.[34] Further, while a sentencing judge is entitled to consider 'all the conduct of the accused, including that which would aggravate the offence', a sentencer 'cannot take into account circumstances of aggravation which would have warranted a conviction for a more serious offence'.[35]
2. The appellant does not, and could not, claim that the present case engages the second of the principles described by Gibbs CJ.
3. The appellant points to four passages in the sentencing remarks as the basis for the contention that his Honour sentenced the appellant for offences of which he was not convicted.[36] For convenience, we have italicised them. Three of these passages arise in the following portion of the sentencing remarks:[37]

Everybody in the community, in this day and age, has, some time, known how serious this type of offending, which is child sexual abuse, is, and how prevalent it is in the community. You are to be sentenced in accordance with the verdicts of the jury, based on the evidence given to the court during your trial. As I indicated previously, for the purpose of sentencing, you are to be sentenced on the basis that each of the victims, including those in respect of uncharged acts, namely [N] and [C] and [N] is the sister of [K] and her surname is [deleted] [sic].[38]

The evidence of the children was, in my view, with respect, overwhelming, and there can simply be no doubt, consistent with the verdict of the jury, that you committed the offences for which you have been charged. And also, in my view - and I find accordingly, that you committed the various uncharged acts which were referred to in the evidence.

There was, of course, some overlap in relation to some of those uncharged acts, because there was, on occasion, more than one victim exposed to you masturbating in the lounge room of your home.

1. Later in the sentencing remarks, his Honour made the fourth impugned statement:[39]

There was a degree of persistence, by reason of the touching of [K] occurring more than once and on a number of occasions. And the underlying sexual offending against the young children, as I said, was not totally opportunistic, in the sense that it was a one off occasion. It occurred on and off over a lengthy period of time of about five years.

1. There was no issue before this court or in the sentencing proceedings that the uncharged acts were relevant to the assessment of the weight to be given to personal deterrence and the protection of the public.[40]
2. The uncharged acts were acknowledged by defence counsel as being relevant to context and background and to the appellant's sentencing. This may be accepted, but they also showed that the offences were not isolated or aberrations.
3. The impugned portions of the sentencing remarks must be read having regard to the sentencing remarks as a whole, and in their proper context. In the plea in mitigation, defence counsel acknowledged that his Honour would take into account the uncharged acts in sentencing the appellant. Immediately after, the following exchange took place between the sentencing judge and defence counsel:[41]

STEVENSON DCJ: Only in the context of the court being obliged to sentence him for the offences for which he has been convicted. They simply form part of the context and background.

KEELY, MR: Background. That's right.

STEVENSON DCJ: But I can only have regard to them in that way.

KEELY, MR: Yes.

STEVENSON DCJ: So [the appellant] needs to understand very clearly that he is to be sentenced only for those offences for which he has been convicted. ...

1. After the impugned portions of the sentencing remarks were made, the sentencing judge later went on to state:[42]

I accept the evidence in relation to the uncharged acts which involved masturbation in the presence of the children. They inform part of the context of the offending for which you are to be sentenced. As I said in the course of submissions, you are to be sentenced only for the offences for which you have been convicted.

1. Comments made by a sentencing judge during discourse with counsel in the course of counsel's submissions do not, ordinarily, have the status of findings and do not, ordinarily, have the status accorded to comments made in the judge's sentencing remarks. In context, however, in the course of his sentencing remarks his Honour was plainly referring to what had been said in the exchange with defence counsel in the sentencing submissions.
2. In all the circumstances we accept the respondent's submission that the passage in the sentencing remarks, which includes the first three impugned statements, should be understood as referring back to the abovementioned exchange in the course of the sentencing submissions (see [36] above). That is abundantly clear from what the sentencing judge went on to say in his sentencing remarks as reproduced at [37] above. In the exchange during the sentencing submissions, and then again following the impugned passages in the sentencing remarks, the sentencing judge confirmed that the appellant was only to be sentenced for the offences for which he had been convicted, and that the uncharged acts were to be understood as being part of the context and background in which the charged of[43]nces were committed.43
3. When seen in their proper context:

(1) the first impugned statement should not be understood as meaning that the appellant was to be sentenced for uncharged acts, but, rather, that the uncharged acts were to be taken into account as part of the background and context;

(2) the second impugned statement is merely a finding that the appellant committed the uncharged acts;

(3) the third impugned statement is merely an uncontroversial statement of fact relating to the circumstance in which some of the uncharged acts occurred; and

(4) the fourth impugned statement, in substance, amounts to findings, which were well open on the evidence, that there was a degree of persistence in respect of the touching of K, that the offending was not opportunistic, and that it occurred over a lengthy period of about five years.

1. As was observed in Langdon v Kelemete‑Leoli‑McLean, in some cases, it is not always easy to draw a line between the circumstances surrounding the commission of the offence and the punishment of an offence which is not charged.[44] However, the present case does not fall into this category. We are satisfied that the impugned passages do not individually or in combination, show an infringement of the De Simoni principle.
2. Ground 1 has not been made out.
3. We now turn to grounds 2 and 3.

1. The general principles applicable to contentions that error should be inferred on the basis that an individual sentence is manifestly excessive (ground 2), or that a total effective sentence infringes the totality principle (ground 3), are well‑established and have been set out in many cases decided by this court, including in Kabambi v The State of Western Australia.[45] For the sake of convenience, we will repeat the principles as stated in that case.

(1) Sentencing is a discretionary exercise. An appellate court can intervene only if the appellant demonstrates either an express or implied material error. Express error involves acting on a wrong principle, for example by mistaking the law or facts or taking into account an irrelevant matter. Implied error arises where the end result is so unreasonable or unjust that the court must conclude that a substantial wrong has occurred. Thus, an appellate court cannot substitute its own opinion for that of the sentencing court merely because the appellate court would have exercised a sentencing discretion differently.

(2) In order to determine whether a sentence for an individual offence is manifestly excessive or inadequate, the offence should be viewed in light of the maximum sentence prescribed by law for the crime, the standards of sentencing customarily imposed with respect to it, the place that the criminal conduct occupies in the scale of seriousness of crimes of that type, and the offender's personal circumstances.

(3) The first limb of the totality principle requires that the total effective sentence imposed on an offender who has committed multiple offences bears a proper relationship to the overall criminality involved in all of the offences (including those, if any, in respect of which the offender is still serving or is yet to serve a term of imprisonment), viewed in their entirety, having regard to all relevant facts and circumstances including those referable to the offender personally (and including, for example, the desirability of accommodating any wish to rehabilitate), all relevant sentencing factors and the total effective sentences imposed in comparable cases.

(4) The range of sentences customarily imposed for a crime does not establish the range of a sound exercise of the sentencing discretion. Sentences customarily imposed in comparable cases provide a yardstick or reference point for ensuring broad consistency in sentencing, bearing in mind the scope for significant variations in relevant sentencing factors, and that there is no single correct sentence. What is important is the unifying principles which sentences imposed in comparable cases reveal and reflect.

(5) When this court dismisses an appeal against sentence and when it resentences on a successful appeal, its decision does not fix the upper or lower limit of the range.

(6) Where there is a challenge on totality grounds, the severity of a sentence imposed on an individual count generally falls to be assessed in light of the sentences imposed in respect of the other counts and its contribution to the total effective sentence. A heavy individual sentence (which is not manifestly excessive) may be softened by an order that it be served concurrently with sentences imposed in relation to the other counts. A relatively light sentence (which is not manifestly inadequate) may, as a practical matter, have increased severity if it is ordered to be served cumulatively. The real question is whether the total effective sentence is unreasonable or plainly unjust.

The principles applicable to sentencing for child sexual offences

1. The sentencing principles applicable to sexual offences committed by an adult against a young child are uncontroversial. Because of the need to protect vulnerable children, the primary sentencing considerations are punishment of the offender and personal and general deterrence. As a result, matters personal to an offender will ordinarily carry less weight.[46]

1. The appellant's written submissions in support of grounds 2 and 3 include many pages devoted to a description of cases decided by this court which are said to be comparable.[47] It is unnecessary to repeat or summarise this analysis.
2. In his oral submissions, counsel for the appellant referred to HTD v The State of Western Australia;[48] Williams v The State of Western Australia;[49] PJB v The State of Western Australia;[50] and EPD v The State of Western Australia.[51] He did so principally in support of ground 2.[52]
3. In respect of ground 2, the maximum penalty for an offence contrary to s 320(4) of the Criminal Code is 10 years' imprisonment. The offence involved the appellant touching K's vagina. K was vulnerable by virtue of her young age (she was, at the time, between 6 or 7 years old) and was, immediately before the commission of the offence, asleep in her bed. The offence was further aggravated because the appellant was in a position of trust, being the victim's step‑grandfather and he and his wife acting as the victim's parents. See [19]. Having regard to the uncharged acts involving K and the circumstances of count 2, it could not be said that it was an isolated offence. The appellant was not entitled to any leniency on the basis that the offence was an aberration or out of character.
4. It is unnecessary to set out the facts and circumstances of the cases cited by the appellant. We have had regard to them. See, for example: EPD; BGE v The State of Western Australia;[53] Asplin v The State of Western Australia[54] and Jacobsen v The State of Western Australia.[55]
5. While the appellant's antecedents were favourable, he did not have the benefit of youth, remorse or a plea of guilty.
6. In oral submissions, the respondent accepted (correctly, in our view) that the sentence of 3 years' immediate imprisonment imposed on count 1 'might be regarded as high', but contended that it was not unreasonable or plainly unjust, and therefore was not manifestly excessive.[56]
7. Having regard to:

(b) the facts and circumstances involved in the commission of count 1, which we regard as particularly serious;

we do not regard the sentence imposed on count 1 as being manifestly excessive. In our opinion, while the sentence was towards the higher end of the appropriate discretionary range, it did not go beyond the upper limit of that range. The sentence was not unreasonable or plainly unjust. Implied error has not been established. Ground 2 has not been made out.

1. With respect to ground 3, we will not repeat what we have already written concerning the facts of the offences, the uncharged acts, the appellant's personal circumstances and the sentencing remarks.
2. The appellant committed four offences in respect of three young children, one of whom was his step‑granddaughter. On each occasion, he had been entrusted with the care of the victim. Clearly, count 1 was the most serious of the four offences, but the acts of masturbation, which were the subjects of counts 2, 3 and 4, were doubtless extremely offensive to the victims. As the uncharged acts revealed, the circumstances of these three offences were not isolated and can fairly be said to be brazen. While the appellant's personal circumstances were, as we have already observed, favourable, they provide only limited mitigatory weight.
3. Where it is alleged that the total effective sentence infringed the first limb of the totality principle, comparing the total effective sentence under challenge with the facts and circumstances of cases said to be comparable by the appellant is of limited utility.[57]
4. Some accumulation of the sentences was required to reflect that the appellant committed offences against more than one victim. However, when deciding whether the first limb of the totality principle has been infringed, it is relevant to have regard to the severity of a sentence imposed on an individual count which, while not being erroneous, is nevertheless relatively high.[58]
5. In analysing ground 3, we are mindful that the sentence imposed on count 1 was high, but acknowledge some accumulation of the individual sentences was appropriate. In light of this and all the relevant circumstances, including the overall criminality involved in the offending, the appellant's personal circumstances, comparable cases and all the relevant sentencing principles, we have been persuaded that the total effective sentence of 5 years' immediate imprisonment infringed the first limb of the totality principle.
6. Ground 3 has been made out. The appellant must be resentenced.

1. The court has all the materials necessary to resentence the appellant. We would not impose individual sentences of immediate imprisonment that were different from those imposed by the sentencing judge. However, we would make different orders for concurrency and cumulacy.
2. In our opinion, the appropriate total effective sentence is 4 years' immediate imprisonment. We would order that the sentences on counts 1 and 4 be served cumulatively, and that the sentences on counts 2 and 3 be served concurrently with the sentence on count 1. The appellant should remain eligible for parole and we would backdate the sentences to commence on 21 January 2020.

1. We would make the following orders:
   1. Leave to appeal on ground 1 is refused.
   2. Leave to appeal on grounds 2 and 3 is granted.
   3. The appeal is allowed and the sentences imposed by Stevenson DCJ be set aside.
   4. The appellant is resentenced as follows:

Counts 2, 3 and 4 - 12 months' immediate imprisonment on each count.

1. The sentences on counts 1 and 4 shall be served cumulatively and the sentences on counts 2 and 3 shall be served concurrently with the sentence on count 1. The appellant remains eligible for parole and the sentences shall be taken to have taken effect on 21 January 2020.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.

[5] Order of Buss P dated 20 April 2020, AB 4.

[6] R v De Simoni [1981] HCA 31; (1981) 147 CLR 383, 389.

[35] De Simoni (389). See also Langdon v Kelemete‑Leoli‑McLean [2011] WASCA 26; (2011) 206 A Crim R 368 [9] (Buss JA) [95] (Mazza J).

[38] It is evident from listening to the recording that the transcription of this passage is accurate. It appears, however, that his Honour misspoke; the sentence is incomplete.

[40] See JAW v The State of Western Australia [2012] WASCA 7 [35].

[44] Langdon v Kelemete‑Leoli‑McLean [95].

[45] Kabambi v The State of Western Australia [2019] WASCA 44 [21].

[46] UGN v The State of Western Australia [2021] WASCA 10 [42].

[48] HTD v The State of Western Australia [2018] WASCA 202.

[49] Williams v The State of Western Australia [2018] WASCA 161.

[50] PJB v The State of Western Australia [2018] WASCA 150.

[51] EPD v The State of Western Australia [2011] WASCA 264.

[53] BGE v The State of Western Australia [2013] WASCA 136.

[54] Asplin v The State of Western Australia [2013] WASCA 72.

[55] Jacobsen v The State of Western Australia [2015] WASCA 191; (2015) 255 A Crim R 13.

[57] Pennetta v The State of Western Australia [2013] WASCA 234 [39].

[58] See Giglia v The State of Western Australia [2010] WASCA 9 [40].