Court of Appeal (WA)|2006-04-04|Before: Smith JA

"H" v The State of Western Australia [2006] WASCA 53 (4 April 2006)

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

CITATION : "H" -v- THE STATE OF WESTERN AUSTRALIA [2006] WASCA 53

Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA

Criminal law and procedure - Sentencing - Re-exercise of sentencing discretion - Weight to be given to plea of guilty to some of a number of charges - Turns on own facts

Sentencing Legislation Amendment and Repeal Act 2003 (WA)

Cardile v The Queen [2003] WASCA 72

Chivers v The State of Western Australia [2005] WASCA 97

Little v The Queen [2000] WASCA 87

Little v The Queen [2001] WASCA 87

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

Moulds v The Queen, unreported; CCA SCt of WA; Library No 980147; 4 March 1998

Postiglione v The Queen [1997] HCA 26; (1997) 189 CLR 295

R v Leggett [2000] WASCA 237

R v Shannon (1979) 21 SASR 442

Shipley v The Queen [2003] WASCA 247

Stapleton v The Queen [2004] WASCA 130

VIM v The State of Western Australia [2005] WASCA 233

Bruno v The State of Western Australia [2005] WASCA 149

Neely v The State of Western Australia [2004] WASCA 209

Siganto v The Queen [1998] HCA 74; (1998) 194 CLR 656

Woods v The Queen (1994) 13 WAR 341

1 STEYTLER P: I have read the judgments of Roberts-Smith JA and McLure JA. As those judgments recite, the appellant was charged with 21 counts of sexual offences committed against his stepdaughter between August 1975 and March 1984. He was tried by a jury in March 2005. At the commencement of the trial, he pleaded guilty to and was convicted on six counts, being counts 11, 12, 14, 15, 19 and 20. Counts 11, 12, 14 and 15 were counts of indecent dealing with a child under the age of 14 years. Counts 19 and 20 were counts of indecent assault. The other offences charged encompassed 12 counts of indecent dealing and three counts of rape. Two of the rapes were said to have been committed during 1981. The third was committed between 1 December 1983 and 1 March 1984. During the course of the trial the two counts alleging rape during 1981 were amended so as to substitute charges of indecent assault. At the end of the trial the appellant was acquitted on two counts (both charges of indecent dealing with a child under the age of 14 years) and convicted on the balance. He was sentenced to a total of 10 years' imprisonment, commencing from 31 March 2005, with eligibility for parole. He has sought leave to appeal against the sentences imposed upon him.

2 Each of Roberts-Smith JA and McLure JA has concluded that leave to appeal should be given, that the appeal should be allowed and that the sentences imposed by the sentencing Judge should be set aside. Each has also concluded that, in lieu of the sentences imposed by the sentencing Judge, a total sentence of 8 years' imprisonment should be imposed. I agree with each of them, for the reasons which they have respectively given, that there were errors in the sentencing process such as to require that leave be given, that the appeal be allowed and that the sentences imposed be set aside.

3 However, Roberts-Smith JA and McLure JA differ as regards the make-up of the total sentence of 8 years' imprisonment which each would impose. Both consider that there should be a term of 1 year and 4 months' imprisonment in respect of count 1, terms of 2 years' imprisonment in respect of each of counts 2, 3, 6, 7 and 18, terms of 2 years and 8 months' imprisonment in respect of each of counts 4, 5, 8, 9 and 13, a term of 6 months' imprisonment in respect of count 16 and a term of 5 years and 4 months' imprisonment in respect of count 21 (the rape charge). They differ as regards the counts upon which the appellant pleaded guilty being, as I have said, counts 11, 12, 14, 15, 19 and 20. McLure JA would impose a term of 2 years' imprisonment on each of those counts and Roberts-Smith JA would impose a term of 2 years and 6 months' imprisonment in respect of each of them. The difference between them has no consequence for the total sentence imposed because each has made the sentence imposed on count 4 (2 years and 8 months' imprisonment) cumulative upon that imposed in respect of count 21 (5 years and 4 months' imprisonment) and ordered that the balance of the sentences is to be served concurrently.

4 The difference between Roberts-Smith JA and McLure JA arises out of the reduction which each has allowed for the appellant's pleas of guilty. Roberts-Smith JA considers that the circumstances in which those pleas were made justify only a minimal reduction. McLure JA considers that, when the pleas are looked at together with admissions which had previously been made by the appellant to police, a greater reduction is justified. Because I agree with all that has been said by both Judges other than as regards the issue of what sentences should be imposed in respect of counts 11, 12, 14, 15, 19 and 20, I will comment only upon that issue.

5 I will say something, first, about the background to the pleas of guilty. The appellant was interviewed by police in respect of his offending on 11 November 2002. At first, when he was asked about particular allegations, he said that he could not recall the events that were described to him. After some time, he was asked whether he had ever been close to the complainant in a sexual way. He said that he had. He was asked what happened. He said that he did not know, but that he guessed that it was just "brain fade" and that he had touched, but not entered, the complainant. He went on to make a number of admissions of indecent dealing, although he said that there had been no more than five such incidents. While it is fair to say, as the sentencing Judge did, that the appellant provided little detail of his offending and minimised, very substantially, what had occurred, the fact remains that he was prepared to make the important admission that he had been involved in some sexual misconduct with the complainant. He also showed some remorse in respect of his offending behaviour. He said that he had constantly thought about apologising to the complainant but did not know how to go about it. He believed that if he had telephoned the complainant she would have hung up. He said that he would like to talk to the complainant, perhaps with the police officers, so that he could apologise to her.

6 On 22 January 2003, the appellant's solicitors wrote to the Director of Public Prosecutions ("DPP") proposing that, if the DPP was prepared to present an indictment containing five counts of unlawful indecent assault at a time when the complainant was between the ages of 11 and 13, the appellant would plead guilty to those charges "in full disposition of the complaint". The letter recorded that the appellant "basically accepts that the five acts of which he would plead guilty ... involved him touching the vaginal area of the complainant, or her touching his penis" and said that more serious allegations contained in the statement of material facts were disputed. The DPP rejected the proposal.

7 On 10 February 2005, senior counsel engaged by the appellant wrote to the DPP. In his letter, counsel said that his reading of the transcript of the appellant's interview with the police on 11 November 2002 indicated that the appellant had made admissions which appeared generally to relate to counts 10, 12, 14, 17, 19 and 20 but that the appellant otherwise denied committing the offences charged. He said that he had been instructed "on a without prejudice basis" that the appellant would be prepared to plead guilty to the counts mentioned in full satisfaction of the indictment. The DPP declined to accept this proposal. Events then took the course that I have earlier described, with the appellant pleading guilty, at the commencement of his trial, to the six counts to which I have earlier referred.

8 Before considering what reduction might be appropriate in respect of these pleas of guilty and the admissions which preceded them, I propose to say something about the applicable principles.

9 It is well established that offenders in this State are "rewarded" for fast track pleas of guilty by a reduction in sentence which usually falls somewhere between 20 per cent and 35 per cent, depending on the circumstances: see, for example, Little v The Queen [2001] WASCA 87 at [13] per Malcolm CJ, Wallwork and Anderson JJ; and Stapleton v The Queen [2004] WASCA 130 at [33] per Malcolm CJ, with whom Wheeler J was in agreement. I should stress that this is merely the usual range in the case of fast track pleas. In particular cases the reduction might be less, even substantially so in the case of a late plea and an absence of any real remorse, or more (although a reduction should not be so excessive as to undermine the accusatorial feature of our criminal justice system: R v Shannon (1979) 21 SASR 442 at 449 per Kirby CJ; and Cameron v The Queen (2002) 209 CLR 339 at 359 per Kirby J). The amount of the reduction is discretionary and sentencing judges "must be accorded a wide measure of latitude which will be respected by appellate courts": Postiglione v The Queen [1997] HCA 26; (1997) 189 CLR 295 at 336 per Kirby J; and Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665 at 671 - 672. In Cameron, at 358, Kirby J said:

"Sentencing is not a mathematical exercise, apt to be reduced to fixed formulas and equations (cf Pearce v The Queen (1998) 194 CLR 610 at 624 [46]; Ryan v The Queen (2001) 206 CLR 267 at 278 [33]). Unless specifically authorised by legislation, no principle or guideline could be adopted that obliged the application of a rigid approach or an unchanging discount for a plea of guilty. In each case, it is necessary for the sentencing judge to take such a plea into account but having regard to all the circumstances."

10 Section 8(2) of the Sentencing Act 1995 (WA) provides that a plea of guilty by an offender is a mitigating factor and the earlier in proceedings that it is made, or indication is given that it will be made, the greater the mitigation. Section 8(4) provides that if, because of a mitigating factor, a court reduces the sentence it would otherwise have imposed on an offender, the court must state that fact in open court. Given the provisions of s 8(4), the failure to refer to the effect of a plea of guilty will ordinarily be an indication that a sentencing judge has overlooked it: see, for example, R v Thompson (2000) 49 NSWLR 383 at 395 [52]; and Chivers v The State of Western Australia [2005] WASCA 97 at [18], [53]. However, the fact that the requirement of s 8(4) (as opposed to the existence of the plea itself) has been overlooked will not be a reason for overturning the sentence imposed if it is obvious that a reduction has in fact been made on account of the plea: Moulds v The Queen, unreported; CCA SCt of WA; Library No 980147; 4 March 1998 at 6 per Malcolm CJ, with whom Franklyn and Ipp JJ were in agreement; Little v The Queen [2000] WASCA 87 at [13] per Kennedy J, with whom Wallwork and Murray JJ were in agreement; and Shipley v The Queen [2003] WASCA 247 at [19]). Also, the sentence will not be overturned for this reason if the Court of Appeal is of the opinion that, even making an appropriate reduction on account of the plea of guilty, no different sentence should, in the light of other circumstances, have been imposed: s 31(4)(a) of the Criminal Appeals Act 2004 (WA).

11 Section 8(2) of the Sentencing Act must also be reconciled with s 7(2)(a) of that Act, which provides that an offence is not aggravated by the fact that an offender has pleaded not guilty to it. In Cameron, at 345, Gaudron, Gummow and Callinan JJ said that s 7(2)(a) gives effect to the common law requirement that an offender must not be penalised for pleading not guilty. They went on to say that s 8(2) must be read "as allowing that a plea of guilty may be taken into account in mitigation for the reason that a guilty plea evidences a willingness to facilitate the course of justice and not simply because the plea saves the time and expense of those involved in the administration of criminal justice" (see also Kirby J in that case at 358).

12 Of course, a plea of guilty is usually indicative of some remorse (see Cameron at 350 [39] per McHugh JA, and the cases there cited, and at 360 per Kirby J) and of an acceptance of responsibility: Cameron at 343 per Gaudron, Gummow and Callinan JJ. It is these factors (if present) which, together with a willingness to facilitate the course of justice, lead to the making of a reduction in sentence on account of the plea: Cameron at 343. The fact that the State and others may be advantaged by saving the time and expense of a contested hearing is not a relevant consideration: Cameron at 343 per Gaudron, Gummow and Callinan JJ and at 353 per McHugh J. However, the earlier that the plea is made the greater will be the reduction that will be allowed: s 8(2) of the Sentencing Act (and see also Cameron at 359 per Kirby J; and R v Atholwood (1999) 109 A Crim R 465 at 467, although the reasoning in that case must now be read in light of what has since been said in Cameron). It has been said in this jurisdiction that even a plea which is late, and almost inevitable because of the strength of the prosecution case, will attract a substantial discount: Cardile v The Queen [2003] WASCA 72 at [45] per Wheeler J, with whom Malcolm CJ agreed. Just how substantial that discount should be is a matter falling within the discretion of the sentencing Judge, but it seems to me that in a case in which the plea comes very late and is not indicative of genuine remorse it would ordinarily result in a very much smaller reduction than might have been given had it come earlier and been accompanied by genuine remorse. However, the amount allowed will, in the end, depend upon all of the circumstances of the individual case.

13 When a conviction follows upon a plea of guilty that is itself the result of a voluntary disclosure of guilt by the offender, a further element of leniency enters into the sentencing decision: R v Ellis (1986) 6 NSWLR 603 at 604 per Street CJ, with whom Hunt and Allen JJ concurred. Also, in Cameron, at 359, Kirby J said:

"The discount for a plea of guilty to the charge brought against the accused is to be distinguished from a discount for a spontaneous and immediate expression of remorse conducive to reform and for immediate co-operation with investigating police. The latter has always been treated as deserving of such recognition in the sentencing of an accused (eg, R v James and Sharman (1913) 9 Cr App R 142; R v Caust [1936] SASR 170; R v Shannon (1970) 21 SASR 442 at 450; Heferen v The Queen [1999] WASCA 81; (1999) 106 A Crim R 89 at 92 [12])."

14 In a case in which a voluntary disclosure of guilt has been made and it is unlikely that guilt would otherwise have been discovered and established, a considerable element of leniency will ordinarily be extended: Ellis at 604 and R v Brazel [2005] VSCA 56; (2005) 153 A Crim R 152 at 159 - 160.

15 In this case the appellant's co-operation with police was only partial, in that he admitted only to the less serious of the offences alleged against him, and his admissions came only when he was faced with allegations directly raised by police officers. However, the fact that he made those admissions was still a matter of significance. They provided some vindication of what had been said against him by the complainant and demonstrated some acceptance of responsibility and willingness to cooperate. Also, while the appellant's expressions of remorse are diminished, to some degree, by the limited nature of the admissions made by him, I am willing to accept that he was genuinely remorseful for his conduct. Moreover, while the subsequent letters from his lawyers were demonstrative of a wish to obtain some tactical advantage from the admissions which he had made, I am unable to accept the suggestion, advanced on behalf of the respondent, that those admissions were made in the course of the interview with the police in order to obtain a tactical advantage. There is nothing to suggest that the appellant would then have thought that there was any tactical advantage in making admissions of that kind. Also, while the subsequent pleas of guilty might have been an almost inevitable consequence of the admissions which had earlier been made, that does not detract from the value of those admissions.

16 It consequently seems to me that the appellant is entitled to a significant discount in the sentences to be imposed in respect of those counts which were the subject of the admissions and of the pleas of guilty. As I have said, his conduct demonstrated some remorse, as well as an acceptance of responsibility and a willingness to facilitate the course of justice in respect of those offences at least. In all of the circumstances, it seems to me that the sentence of 2 years proposed by McLure JA in respect of each of counts 11, 12, 14, 15, 19 and 20 is appropriate.

17 It follows that I would grant leave to appeal, allow the appeal, set aside the sentences imposed by the sentencing Judge and, in lieu, impose the sentences proposed by McLure JA, resulting in a total sentence of 8 years' imprisonment commencing on 31 March 2005. The appellant will remain eligible for parole and will consequently serve a minimum of 6 years in custody.

18 ROBERTS-SMITH JA: I have had the benefit of reading in draft the reasons for judgment of McLure JA. I agree with her Honour's reasons and conclusions, save for the effect of the appellant's pleas of guilty. In that regard, whilst I agree with the principles expressed by her Honour, I regret that I do not agree with her application of them to this case.

19 As McLure JA has set out the details of the appellant's convictions and sentences it is not necessary for me to do so.

20 The appellant's grounds of appeal, as amended by leave at the commencement of the hearing of the appeal are:

"1. The Learned Sentencing Judge erred in that the sentence imposed was manifestly excessive, having regard to the circumstances of the case.

(i) Failure to give sufficient weight or any weight to the Applicant's co-operation with the police in his video taped record of interview;

(ii) Failure to give sufficient weight or any weight to the Applicant's six pleas of guilty on the Indictment which then proceeded to trial;

(iii) Failure to give sufficient weight or any weight to the Applicant's remorse as shown in his video taped record of interview.

2. The Learned Sentencing Judge erred in imposing sentences consistent with offences of sexual penetration of a child pursuant to Section 320(2) of the Criminal Code when imposing sentences for convictions of unlawful and indecent dealing of child pursuant to Section 183 of the Criminal Code.

3. The Learned Sentencing Judge erred in failing to apply the 1/3 reduction required by the transitional provisions of the Sentencing Act 1995 in fixing the terms of imprisonment imposed."

21 As her Honour points out, error in the exercise of his Honour's sentencing discretion having been demonstrated, the question now is what this Court should do. However, I have to say that I would take the same view as that taken by the sentencing Judge in regard to the effect of the appellant's pleas of guilty.

22 It seems to me critical in this case, to examine the circumstances and nature of the appellant's admissions to police and his subsequent late pleas of guilty to six of the 21 counts on the indictment.

23 In his brief sentencing remarks the Judge said, in relation to this issue:

"When interviewed by the police, you admitted some misbehaviour of the relevant sort but gave little detail and minimised, very substantially indeed, what had occurred. You were struck with those admissions and as a result, in my view, that caused you to offer to plead to a minimal number of offences in the hope that that would be accepted in satisfaction of the matter, but in my view the State, quite properly, declined your proposal. That offer, in my view, shows no remorse but merely an attempt to make the best of your predicament at the time."

24 His Honour later reiterated there was no real remorse and that the appellant had put the victim through the trauma of a trial as well as making her suffer the life-long effects of the abuse that he perpetrated on her.

25 The starting point is necessarily s 8 of the Sentencing Act 1995 (WA).

26 Subsection (1) defines mitigating factors as those which, in the Court's opinion, decrease the culpability of the offender or decrease the extent to which the offender should be punished.

27 Section 8(2) stipulates that:

"A plea of guilty by an offender is a mitigating factor and the earlier in proceedings that it is made, or indication is given that it will be made, the greater the mitigation."

28 It is submitted on behalf of the respondent that on the proper construction of s 8, a mitigating factor will not always result in a reduction in sentence. That submission is founded on s 8(4), which provides that:

"If because of a mitigating factor a court reduces the sentence it would otherwise have imposed on an offender, the court must state that fact in open court."

29 I do not accept the submission. Subsection 4 means only that where in fact a court reduces a sentence because of a particular mitigating factor, it must say so. Only two particular mitigating factors are specified in s 8. A plea of guilty is one; an undertaking to assist law enforcement authorities is the other (s 8(5)). Apart from those, mitigating factors are characterisable as such only by the effect given to them, namely, they are factors which in the opinion of the court in an individual case, decrease the culpability of the offender or decrease the extent to which the offender should be punished. The effect of subs (2) is to define a plea of guilty as having that character - that is to say, by subs (2) a plea of guilty is always a mitigating factor and so will always have the consequence of decreasing the extent to which the offender should be punished. That is no doubt statutory recognition that the public interest is always served when an offender who is in fact guilty, enters a plea of guilty. But there is nothing in s 8 nor elsewhere in the Sentencing Act which stipulates how a reduction on that account is to be determined, nor how much mitigatory weight is to be given to a plea of guilty. That necessarily remains a matter for the exercise of the sentencing discretion by the court in each case, in accordance with principle.

30 In their joint judgment in Cameron v The Queen (2002) 209 CLR 339, Gaudron, Gummow and Callinan JJ observed (at [14]) that reconciliation of the requirement that a person not be penalised for pleading not guilty with the rule that the plea of guilty may be taken into account in mitigation requires that the rationale for that rule, so far as it depends on factors other than remorse and acceptance of responsibility, be expressed in terms of willingness to facilitate the course of justice and not on the basis that the plea has saved the community the expense of a contested hearing. Their Honours derived that conclusion from the need to reconcile s 8(2) of the Sentencing Act with s 7(2)(a), which gives effect to the common law requirement that an offender not be penalised for pleading not guilty.

31 Thus, the extent to which a plea of guilty should result in a reduction of sentence will turn upon the extent to which the plea is indicative of remorse, acceptance of responsibility and willingness to facilitate the course of justice (ibid, [22]).

32 McHugh J (dissenting), noted (at [42]) that like other Australian courts, the courts in this State give substantial discounts to those who plead guilty even when the plea is not accompanied by any remorse or contrition. His Honour quoted the following passage of the judgment of Ipp J in R v Atholwood (1999) 109 A Crim R 465 at 467:

"A bare plea of guilty (that is, a plea that is not accompanied by genuine remorse), even when made at the last moment, is a mitigating factor as it avoids the expense of a defended trial, inconvenience to witnesses and delay to other cases in the list. This is so even when the case of the prosecution is strong: ..."

33 In his judgment, (agreeing in the result), Kirby J summarised a number of applicable sentencing principles, including that unless specifically authorised by legislation, no principle or guideline could be adopted which obliged the application of a rigid approach or an unchanging discount for a plea of guilty. His Honour said (at [65]) that in each case it is necessary for the sentencing Judge to take such a plea into account but having regard to all the circumstances.

34 In his Honour's view, the true foundation for the discount for a plea of guilty is not a reward for remorse or its anticipated consequences, but acceptance that it is in the public interest to provide the discount (at [65]). The main features of the public interest, as perceived by his Honour as being relevant to the discount for a plea of guilty, were "purely utilitarian". At [66] his Honour said:

"... they include the fact that a plea of guilty saves the community the cost and inconvenience of the trial of the prisoner which must otherwise be undertaken. It also involves a saving in costs that must otherwise be expended upon the provision of judicial and court facilities; prosecutorial operations; the supply of legal aid to accused persons; witness fees; and the fees paid, and inconvenience caused, to any jurors summoned to perform jury service. Even a plea at a late stage, indeed even one offered on the day of trial or during a trial, may, to some extent, involve savings of all these kinds." (References omitted).

35 By way of other illustrations of aspects of the public interest to which the law pays regard following a plea of guilty, his Honour referred to the fact that it is in the public interest to facilitate pleas of guilty by those who are guilty and to conserve the trial process substantially to cases where there is a real contest about guilt; that a plea of guilty may help the victims of crime to put their experience behind them and that especially in cases of homicide and sexual offences, the plea of guilty may spare the victim or the victim's family and friends the ordeal of having to give evidence.

36 From the start and throughout his interview by two female police officers, the appellant was very self-possessed and self-controlled and careful in his answers.

37 When the allegations were first put to him, he answered that he could not recall those things happening and did not believe they had. Later, when the allegations were put, he denied them. Still later, when the complainant's "specific claims" that he licked her in the vaginal area, that he inserted his fingers in her vagina and that he told her to grab his penis and suck it, he reverted to saying that he did not recall doing any of those things. To allegations of him having oral sex with her and making her masturbate him, he said "I don't think that would have happened". Later still, he positively denied other particular allegations.

38 It was only after a long list of such allegations had been put separately to the appellant, and to which he had responded with either specific or general denials, and he gave an answer that he could not recall "those exact dates and times and actions", that he was asked whether he had ever been close to the complainant in a sexual way and he answered "Yes". Asked when, he said it was later on, when they were living at a given address and she was at high school and aged 13 or 14. All he said about that was that he "... touched her. Never entered her." In response to further questions, he said it happened in her bedroom and that he touched her vagina. He said he could not recall the circumstances at all. He could not recall if she was clothed; she might have been coming out of the shower; he could not explain why he touched her, saying "just brain fade, I guess". He could not recall whether she was standing or sitting, what she was wearing or whether she was naked. He could not recall how she reacted, nor what happened afterwards. She said he did not tell his wife or anyone else about it because he knew it was wrong.

39 The police officers returned to allegations of earlier incidents when the complainant was 12 years old, which they had been in the course of putting to the appellant before he made the admission mentioned above. He denied those other incidents. When the police officers came to late 1981, at the end of which year the family moved to the address at which the appellant admitted he had touched the complainant, he said he remembered touching her in his bedroom also, but again said he did not know the circumstances. Despite being asked for details, he maintained he could not recall anything except that he had touched her. He denied kissing the complainant at that house. He denied the other allegations made by her about sexual assaults made on her there. He said he could just remember touching her (on those two occasions), that it was "vivid" in his mind that it was wrong, but that was all.

40 After a break in the interview he was asked whether there were other incidents in his bedroom that stood out. He said "That happened a couple of times", the same type of thing, just touching with hands. Asked if he may have used his tongue he said "Maybe, on the odd occasion". He said he told the officers the things that he could recall and he would like to get on with his life and let the complainant get on with hers, so obviously the best way to clear it up he said, was he wished he could talk to her just to tell her the way he felt. When the officers asked him what instances he was referring to, he said he did not recall a lot of them because a lot of it was on impulse, but he had touched her at that address. He said the other incidents may have happened but he did not know. The only incidents he was talking about were those at that address which involved licking her vagina and touching her with his hand. He maintained that he had never penetrated her. A little later he said that the incidents in his bedroom and hers would not have been more than five altogether. Asked what the complainant was like when these things were happening, he said that at times she seemed receptive. When the complainant's other allegations of incidents at that address were put to him he denied them. Sometime further on in the interview, when asked again whether or not she had seen his erect penis (which she had earlier denied) he said she had done at that house and had touched it. Asked who instigated the touching he said he guessed he did and he thought she did at times too. When the complainant's allegation that he had grabbed her hand, put it on his penis and moved it to masturbate him, he said that may have happened and once or twice he may have ejaculated in front of her. This would have happened probably in his bedroom. He maintained his denials to all of the allegations.

41 The appellant was charged immediately after the conclusion of the video-taped record of interview.

42 On 22 January 2003, the appellant's solicitors wrote to the DPP, advising that their client's instructions were that if the DPP was prepared to present an indictment containing five counts of unlawful indecent assault, he would plead guilty to those charges "in full disposition of the complaint" by the complainant. They went on to write that in relation to such charges, the appellant would admit that all acts occurred at his residence at the address I have mentioned above between late 1981 to late 1983 when the complainant was between the ages of 11 and 13 years. He would dispute that at any stage he engaged in penile penetration, mutual masturbation, licking or sucking of the complainant's vagina or ejaculation. He "basically" accepted that the five acts of which he would plead guilty were unlawful indecent assault which involved him touching the vaginal area of the complainant, or her touching his penis.

43 The respondent rejected that offer. The trial was held before H H Jackson DCJ and a jury between 30 March and 1 April 2005. At the commencement of the trial, when the appellant was arraigned, he pleaded guilty to counts 11, 12, 14, 15, 19 and 20, they being the indecent assault counts.

44 During the course of the trial, leave was granted to the respondent to amend counts 4, 6, 7 and 18. Of those, counts 6 and 7 were reduced from rape to unlawful and indecent assault.

45 Following the trial, the appellant was convicted of 13 of the 15 counts which had proceeded to trial, there being verdicts of not guilty returned in respect of counts 10 and 17. The appellant was accordingly convicted on 19 of the 21 counts on the indictment.

46 It is submitted on behalf of the appellant that by entering pleas of guilty at the beginning of the trial, he reduced the ordeal of the complainant at trial:

"... by having to testify about a significant greater number of offences which the applicant had already admitted and also, this reduced the length of trial thereby assisting in the administration of justice."

47 What is really intended by that submission is of course, that the appellant reduced the complainant's ordeal by having to testify about a fewer number of offences. It is submitted that late pleas of guilty before the start of a trial and even when the prosecution case is overwhelming, will still result in a reduction of sentence, citing Atholwood (supra) per Ipp J at 467 and R v Heferen [1999] WASCA 81; (1999) 106 A Crim R 89.

48 In Heferen, the applicant sought leave to appeal against a number of sentences aggregating to a term of 8 years 6 months' imprisonment, imposed in respect of six counts of burglary, one of stealing, seven of receiving, two of stealing a motor vehicle and one of stealing a motor vehicle and driving it recklessly. He submitted the aggregate was too long and that he received an inadequate discount for his guilty pleas. Leave to appeal was granted but the appeal was dismissed. Anderson J (with whom Pidgeon and Steytler JJ agreed), held that although the pleas were late, they were offered early enough to at least save the time and cost of final trial preparations, but nonetheless the discount could not be substantial and no error in the sentencing process had been demonstrated. His Honour had said that he took the pleas into account.

49 It is pertinent to note that the appellant had pleaded guilty to all counts on the indictment with the result that there was no trial. That is not the situation here. There is nothing in Heferen which assists the present appellant.

50 Again, in Atholwood, although the plea was made the day before the applicant's trial was to commence, it did result in there being no trial at all. Here, the appellant relies upon a passage from the judgment of Ipp J at 467 to the effect that a bare plea of guilty, not accompanied by genuine remorse, is still a mitigating factor even when made at the last moment. However, it is necessary to set out the passage in full:

"[9] A bare plea of guilty (that is, a plea that is not accompanied by genuine remorse), even when made at the last moment, is a mitigating factor as it avoids the expense of a defended trial, inconvenience to witnesses and delay to other cases in the list. This is so even when the case of the prosecution is strong: Simpson (1993) 68 ACrimR 439; Doyle (1994) 71 ACrimR 360. Of course, the mitigatory effect of such a plea is not as strong as a plea made at the earliest opportunity by an offender who expresses genuine contrition. That is because the earlier the plea is made, the greater the savings to the administration of justice and genuine remorse is an indication of an intention to reform and is conduct that tends to show that the offender is unlikely to offend again: Gray [1977] VicRp 27; [1977] VR 225 at 230-231. Thus, the timing of the plea (and the general circumstances of the offence) will have a bearing on the credit to be given therefor: Holder [1983] 3 NSWLR 245; (1983) 13 ACrimR 375; Bulger [1990] Qd R 559; (1990) 48 ACrimR 239.

[10] Where the prosecution has charged an offender with several counts and after a process of negotiation the offender pleads guilty to only some of them and the prosecution withdraws the others, all the relevant circumstances have to be examined with care in order to establish the credit to which the offender is entitled. ..."

51 These remarks of course, now have to be read in light of Cameron.

52 What is clear is that the extent of mitigatory weight to be given to a plea of guilty will depend upon the circumstances of the particular case. In one case it may be that a plea of guilty to only some counts on an indictment will nonetheless produce public interest benefits sufficient to attract a reduction, and even a significant reduction, in sentence; in another case a pleas of guilty to only some counts may be seen not to produce any appreciable public interest benefits at all. The sentencing Judge took the view this case fell into the latter category. I agree.

53 The admissions made by the appellant in the course of his video record of interview were vague and sought to minimise his conduct. Whilst because they are admissions, they do demonstrate some (minimal) degree of acceptance of responsibility for the conduct he acknowledged, they do not, in my view, demonstrate any remorse. They also fall to be considered in the context of the wrongdoing with he continued to deny, but of which he was guilty as was established by the verdicts.

54 In light of his admissions in the video record of interview, the appellant's conviction in respect of those offences was inevitable. The pleas of guilty were no more than a recognition of that. There was a signal advantage to offering pleas of guilty to the indecent assault counts on the basis the other and more serious charges would not be pursued. As the outcome of the trial shows, the prosecution was right to reject that proposal. There was, even then, some tactical advantage to pleading guilty to those offences whilst pleading not guilty to the others - although as counsel for the appellant pointed out, that was probably counter-balanced by the appellant thereby exposing himself to cross-examination about those incidents, in relation to the other counts.

55 In my view the appellant's admissions and subsequent pleas of guilty were not indicative of remorse, nor any willingness to facilitate the course of justice. They were a minimal acceptance of responsibility for his conduct. I accept the respondent's submission that the pleas of guilty were not indicative of remorse but were the consequence of the appellant's prior admissions to police and his dealings with the DPP. Those admissions and dealings were, as the sentencing Judge found, a tactical ploy whereby he sought to satisfy the authorities by accepting responsibility for relatively minor criminal conduct and thus escape responsibility for his much graver criminal conduct over a much longer period, against the complainant.

56 Nor did the appellant's pleas of guilty demonstrate any utilitarian feature going to the public interest, beyond the mere certainty of conviction - although, as I have said, even that was no additional benefit, because realistically, conviction was inevitable.

57 Although the pleas of guilty were to six counts on the indictment, they concerned only three of the 14 incidents described by the complainant. As a result, the complainant was still required to give lengthy evidence about all the sexual acts performed by the appellant and no significant expense nor court time was saved.

58 In this case, the circumstances of the appellant's admissions and pleas of guilty were such that the justification for reduction of sentence on that account falls almost to vanishing point.

59 Ms O'Connor conceded that any sentence imposed by this Court should properly not exceed the aggregate imposed by his Honour (equivalent to a pre-sentencing Amendment Act sentence of 15 years' imprisonment). She then submitted that when allowance be made for the identified errors made by the sentencing Judge, that would result in some lower individual sentences than those imposed by his Honour, but the aggregate should remain the same as being proportionate to the appellant's overall criminality.

60 I do not accept that last proposition. In my view an appropriate aggregate term of imprisonment, sufficient to reflect proportionality with the appellant's overall criminality in the course of criminal conduct constituted by the offences of which he has been convicted, would be a term of 8 years' imprisonment, after having made the adjustment required by the Sentencing Amendment Act. I would achieve that by structuring the sentences in the same way as McLure JA. I concur with her Honour's assessment of the appropriate sentence which now ought to be imposed in respect of each offence, except in relation to those offences to which the appellant entered pleas of guilty. In respect of each of those counts (11, 12, 14, 15, 19 and 20), I would make only a minimal reduction for the pleas of guilty and impose a term of 2 years 6 months' imprisonment in

respect of each (equivalent to a pre-sentencing Amendment Act sentence of 3 years 9 months' imprisonment).

61 MCLURE JA: This matter was heard by Roberts-Smith JA and myself on 9 November 2005. We were divided on the decision to be given on a question. An order was made under s 62(3)(b) of the Supreme Court Act 1935 (WA) that the appeal be reheard by the Court constituted by three judges of appeal. The rehearing was held on 22 March 2006.

62 The appellant was charged with 21 counts of sexual offences committed against his stepdaughter in the period between August 1975 and March 1984. At the commencement of his District Court trial in March 2005, the appellant pleaded guilty to and was convicted on six counts (11, 12, 14, 15, 19 and 20). At the conclusion of the trial, the appellant was acquitted on two counts (10 and 17) and convicted on a further 13 counts. Of the 19 convictions, 14 were for indecent dealing with a child under 14 years or inciting a child under 14 to indecently deal with him contrary to s 183 of the Criminal Code (WA), the statutory maximum penalty for which was 7 years; four convictions were for unlawful and indecent assault contrary to s 328 of the Criminal Code, the statutory maximum penalty for which was 4 years; and one conviction for rape contrary to s 325/s 326 of the Criminal Code, the statutory maximum for which was life imprisonment but is now 20 years under s 10 of the Sentencing Act 1995 (WA).

63 For sentencing purposes, the sentencing Judge, H H Jackson DCJ, divided the convictions into two categories. The first category was for offences that did not involve "actual sexual penetration" for which he imposed a 4-year term of imprisonment for each offence to be served concurrently. The second category was for offences involving sexual penetration for which he imposed sentences of 6 years to be served concurrently with each other but cumulatively with the 4-year terms for the first category offences. Thus, the sentencing Judge imposed a total effective sentence of 10 years and ordered that the appellant be eligible for parole.

64 As the sentences were imposed on the appellant in 2005, the Sentencing Legislation Amendment and Repeal Act 2003 (WA) ("Sentencing Amendment Act") applied. That legislation required the sentencing Judge to impose a sentence for each offence that is two-thirds of the term he would have imposed under the "former provisions", being the Sentencing Act as it stood prior to the commencement of the Sentencing Amendment Act. In his reasons, the sentencing Judge said he

had taken into account the Sentencing Amendment Act to reduce the sentences by one-third. Accordingly, he imposed sentences which were equivalent to pre-Sentencing Amendment Act terms of 6 years for the first category of offences, 9 years for the second category and a total effective sentence of 15 years.

65 The State conceded that the sentencing Judge had made a number of errors in the course of sentencing which were of such a nature as to vitiate the exercise of the sentencing discretion. The concession was correctly made. Accepting that he had reduced the sentences as required by the Sentencing Amendment Act, the sentencing Judge imposed eight sentences (on counts 6, 7, 9, 12, 13, 14, 19 and 20) which exceeded the maximum statutory penalty. By way of example, a post-Sentencing Amendment Act sentence of greater than 4 years and 8 months for contravening s 183 of the Criminal Code translates to a pre-Sentencing Amendment Act penalty of greater than the maximum penalty of 7 years' imprisonment. Further, by adopting broad categories, the sentencing Judge failed in his duty to fix an appropriate sentence for each offence before considering questions of cumulation or concurrence and totality. It can be inferred that the sentencing Judge was focused on the bottom line, being the total sentence, without proper regard to the sentences imposed for each offence. Another consequence of the approach is that the sentencing Judge did not differentiate between pleas of guilty and not guilty to offences within the two categories.

66 As the sentencing Judge's exercise of discretion has miscarried, this Court may exercise its own discretion where it has the materials to do so: House v The King [1936] HCA 40; (1936) 55 CLR 499 at 504. A potential difficulty facing this Court is that the sentencing Judge failed in his duty to make findings of fact for sentencing purposes. However, both parties agreed that it is open to this Court to make the necessary factual findings because the jury must have, with two exceptions, accepted the complainant's evidence. The appellant's defence at trial consisted of a denial that the acts had occurred. The two acquittals were in respect of alleged offences committed in the presence or vicinity of third parties.

67 Turning now to the facts and the appellant's antecedents. The complainant was born on 26 August 1969. The appellant married the complainant's mother in 1975. He was aged around 26 years when the offending commenced. Most of the offences occurred in or around the family home. The facts of the offences are as follows:

Count 1: The appellant put his mouth over the complainant's vaginal area. The complainant was wearing ballet leotards at the time of the offence which occurred when she was around six or seven.

Count 2: The appellant placed the complainant's hands on his penis to masturbate him.

Count 3: The complainant was in the toilet when the appellant entered and moved her legs apart to see her vagina. The complainant was aged seven or eight at the time.

Counts 4 & 5: Whilst both the appellant and the complainant were naked, the appellant licked the complainant's vagina and caused the complainant to suck his penis. The complainant was aged seven or eight at the time.

Count 6: The appellant rubbed his penis around the complainant's vagina. The complainant was aged between 10 and 12.

Count 7: The appellant rubbed his penis around the complainant's vagina. The complainant was in year seven.

Counts 8 & 9: The appellant licked the complainant's vagina and put his tongue inside her vagina. The complainant was in year seven.

Counts 11, 12 & 13: The appellant pleaded guilty to count 11 (placing his tongue on her vagina) and 12 (digital penetration of her vagina). The appellant was found guilty of count 13 (placing a bottle opener in her vagina).

Counts 14 & 15: The appellant pleaded guilty to the offence of digital penetration (14) and putting his erect penis on the complainant's face (15).

Count 16: The appellant engaged in tongue kissing (placing his tongue inside the complainant's mouth).

Count 18: The appellant caused the complainant to masturbate him.

Count 19: The appellant digitally penetrated the complainant's vagina. The appellant pleaded guilty to this charge.

Counts 20 & 21: The appellant pleaded guilty to count 20 which involved licking the complainant's vagina. The appellant was found guilty of penile penetration of the complainant's vagina without her consent (rape) (21).

68 Where two or more complaints are described together, the offences form part of the same transaction for the purposes of the one transaction rule.

69 The appellant had no relevant prior record. Further, he had no relevant subsequent record in the more than 21 years since the offending against the complainant ceased. That information suggests that the risk of the appellant re-offending is not high.

70 During the course of a video-taped record of interview with police in November 2002, the appellant waived his right to silence and made some admissions of indecent assault or indecent dealing with the complainant in the period in question. Subsequently, the appellant by his solicitors offered to plead guilty to a number of charges pursuant to s 328 of the Criminal Code in full disposition of all matters_._ The State rejected the proposals.

71 At the time of sentencing in 2005, the appellant was aged 55, had been employed all his working life, had retained the support of at least a number of his family and friends and was in a de facto relationship.

72 The State submitted that the pleas of guilty were not indicative of remorse but were a consequence of his prior admissions; that the appellant had not fully accepted responsibility for his actions; and that the pleas of guilty did not materially assist the administration of justice.

73 I am not persuaded by the State's submissions. The admissions made by the appellant to the police demonstrate some degree of remorse and acceptance of responsibility for his conduct and these subjective considerations are also reflected in his late plea of guilty to six counts. Further, the admissions and guilty pleas also demonstrate a willingness to facilitate the course of justice, as to which, see Cameron v The Queen (2002) 209 CLR 339 at 343 per Gaudron, Gummow and Callinan JJ. On the majority view in Cameron, objective considerations such as reducing the costs of and delays in the administration of justice and sparing victims the ordeal of giving evidence are not relevant because they are inconsistent with the accepted position that a failure to plead guilty does not aggravate the offence. However, the existence of objective benefits supports an inference that the admissions and guilty pleas reflect a willingness to facilitate the course of justice. Where there is a plea of guilty to only some of a number of offences to be tried together, the objective benefits will be substantially reduced but not, in my view, extinguished. I am satisfied that it is appropriate to give a discount for the appellant's guilty pleas and for his initial partial cooperation with police.

74 There was no dispute as to the applicable sentencing principles. Sexual offences involving young children are of the utmost seriousness, particularly where an abuse of trust is involved. General deterrence is the dominant sentencing consideration because of the need to protect vulnerable children. The most serious offence committed by the appellant was that of rape. A single act of sexual assault which involves penile penetration of the vagina will commonly attract a sentence of about 6 years' imprisonment under the former provisions. Where such an offence is accompanied by circumstance of aggravation because of the age of the complainant, it would generally attract a sentence of 8 years under the former provision (R v Leggett [2000] WASCA 327 at [20] per Wheeler J. I would have imposed a sentence of 8 years under the former provisions, two-thirds of which is 5 years and 4 months. The other offences involved conduct at different levels on the scale of seriousness of offences of the type charged. Having regard to those variations, the differences in the maximum penalty for s 183 and s 328 offences and the matters of mitigation relating to the offences to which the appellant pleaded guilty, I would sentence the appellant to imprisonment for the following terms (all of which have been reduced by one-third in accordance with the Sentencing Amendment Act):

75 Where more than one offence was part of a single transaction, I would apply the one transaction rule to order concurrency. Further, I have reduced the sentences for the offences to which the appellant admitted and pleaded guilty. The totality principle must also be applied. That requires a judge who is sentencing an offender for a number of offences to ensure that the aggregation of the sentences is a just and appropriate measure of the total criminality involved. This Court has recently undertaken a comprehensive examination of the range of sentences in cases of sexual offending against children (VIM v The State of Western Australia [2005] WASCA 233). Having regard to the principles and authorities in that case, I would have imposed a sentence of 12 years under the former provisions, two-thirds of which is 8 years. I would achieve that result by making the sentence on count 4 (2 years and 8 months) cumulative with the sentence for rape (5 years and 4 months) and the balance of the sentences concurrent. Accordingly, I would grant leave to appeal, allow the appeal, set aside the sentences imposed by the sentencing Judge and in lieu thereof order the sentences indicated in the above table. I would also order that the sentence on counts 4 and 21 be served cumulatively and the sentences for the remaining counts be served concurrently, resulting in a total sentence of 8 years. The appellant will remain eligible for parole and will serve a minimum of 6 years in custody.

Legislation Amendment and Repeal Act 2003

"H" v The State of Western Australia [2006] WASCA 53

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Judgment (132 paragraphs)

"H" v The State of Western Australia [2006] WASCA 53 (4 April 2006)

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