Criminal law - Appeal against sentence - Twenty­seven counts of sexual offences against children - Sentence of 9 years and 6 months' imprisonment - First limb of totality principle - Appeal allowed - Appellant re­sentenced to 7 years and 6 months' imprisonment

Appellant re­sentenced to 7 years 6 months' imprisonment

Hili v The Queen [2010] HCA 45; (2010) 242 CLR 520

Hine v The State of Western Australia [2010] WASCA 216

M v The State of Western Australia [2006] WASCA 256

Pendleton v The Queen [2002] WASCA 4

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

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

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

Rowan v The State of Western Australia [2009] WASCA 185

The State of Western Australia v Akizuki [2008] WASCA 267; (2008) 192 A Crim R 373

The State of Western Australia v Prince [2011] WASCA 22

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

3 NEWNES JA: The appellant pleaded guilty in the District Court to 27 counts of sexual offending against children and was sentenced to a total effective term of imprisonment of 9 years and 6 months. The appellant appeals against the sentence, contending that it did not bear a proper relationship to the overall criminality involved in all the offences and therefore infringed the first limb of the totality principle.

4 On 30 August 2011, Mazza J granted the appellant leave to appeal on that ground.

5 The appellant pleaded guilty to two counts of indecent dealing with a child under 14, six counts of sexual penetration of a child under 13, seven counts of indecent dealing with a child under 13, three counts of sexual penetration of a child over 13 and under 16, six counts of indecent dealing with a child over 13 and under 16 and three counts of indecent assault.

6 The facts of each count were not in dispute and were as follows.

7 The complainant, TD, is the sister of the appellant's then wife. The offence occurred between 1 January 1987 and 5 March 1987 when TD, then aged under 14 years of age, was staying at the appellant's house. TD was sleeping in the family room. While TD was sleeping the appellant put his hand down the front of her knickers and rubbed the outer lips of her vagina with his fingers. TD awoke and jumped up, and the appellant left the room.

8 The complainant, CW, was a friend of the appellant's daughter, MF, and their respective families were close friends. The offence occurred in 1999, when CW was 11 or 12 years of age. CW went to the appellant's house for a sleepover with MF. CW slept on a mattress on the floor beside MF, who slept on her own bed in her bedroom. Having said goodnight to both girls, the appellant returned a short time later and lay down beside CW. He placed his hand inside her knickers and touched her

vagina. The appellant proceeded to place two fingers inside CW's labia majora and to stroke up and down with his fingers. This continued for a period of time until CW managed to position herself so that the appellant was unable to continue the conduct.

9 This offence also occurred in 1999. CW was playing with MF in the rear yard of the appellant's residence. Both CW and MF were jumping on the trampoline and the appellant was nearby. The appellant grabbed CW and held her as part of the game in which they were involved. The appellant held CW with one hand and with the other grabbed her vagina from the outside of her clothes.

10 In 2000, the appellant attended CW's residence. CW and the appellant were in the lounge room and the appellant proceeded to give CW a massage. The appellant placed his hand inside CW's knickers and proceeded to rub two fingers side to side inside her labia majora. At the time of the offending, CW was 13 years of age.

11 The offence the subject of count 5 occurred between July 2000 and January 2001. The complainant, AB, lived with her family next door to the appellant and was a friend of his daughter, MF. While AB was visiting MF at the appellant's house, AB and MF agreed to massage the appellant's back. In return, the appellant massaged both AB and MF. AB and MF lay on their stomachs with the appellant sitting between them. The appellant proceeded to use one hand to massage each child. Whilst doing so, the appellant's hand stroked the side of AB's breasts up and down. At the time of the offending, AB was 14 years of age.

12 On the same occasion as count 5, the appellant massaged AB's bottom and used his thumb to rub AB's vagina in a circular motion on top of her clothes. AB stood up and walked out of the room.

13 The offence the subject of count 7 occurred between 1 January 2001 and 25 January 2001. AB and a friend, EZ, were at the appellant's house, in the swimming pool. AB was 14 years of age at the time. The appellant was playing with AB and EZ in the swimming pool by picking them up and throwing them. On two separate occasions that day, when the appellant picked up AB he slid his hand inside the bottom part of her bathers, placing his hand on her vagina. The appellant rubbed her vagina with his middle finger, entering the labia majora and placing pressure on AB's clitoris. After penetrating her vagina, the appellant threw AB into the water and continued to play with the children.

14 Count 8 occurred on another date between 1 January 2001 and 25 January 2001 and involved the same facts as count 7 (again occurring on two separate occasions during the day). Count 9 involved the same facts as count 8. The appellant, whilst picking up AB, rubbed her vagina and also touched her breast area.

15 This offence occurred between the same dates as in count 8, namely, between 1 January 2001 and 25 January 2001. At the time, the complainant, EZ, was 13 years of age. EZ was a friend of AB's and had accompanied AB to the appellant's house. EZ was asked by the appellant to help clean his house and car. EZ was in a room at the appellant's house by herself when the appellant entered. He proceeded to slide down one side of her shirt, baring her left chest region which he started to stroke with his hand.

16 On another occasion between 1 January 2001 and 25 January 2001, EZ and AB were in the appellant's swimming pool. The appellant was playing with EZ and AB by picking them up and throwing them. In the course of that activity, the appellant picked EZ up, slid his hand inside her bather shorts and placed his hand on top of her vagina.

17 On the same day as count 11, while the appellant placed one hand on EZ's vagina he slid his other hand under EZ's bikini top and stroked her chest area. EZ struggled and kicked at the appellant to break free.

18 The complainant, KO, was a friend of the appellant's daughter, MF. KO played basketball at a stadium where the appellant owned a kiosk. The appellant approached KO's mother offering KO work at the kiosk, which KO accepted. KO was employed by the appellant as a customer service operator at the kiosk.

19 Between 1 July 2000 and 6 August 2000, whilst KO was working at the kiosk she was sitting on a freezer in the kitchen area with her legs apart. The appellant stood between her legs and stroked her inner thigh with his hand. He proceeded to unbutton her jeans and placed his hand inside her knickers. With his middle finger he stroked between her labia majora for several minutes until a customer rang a service bell at the front counter. At the time of the offending, KO was 11 years of age.

20 Between 7 August 2000 and 25 December 2000, while KO was working at the kiosk, the appellant told KO to go to the back of the store room to get drinks. The appellant came from behind KO, reached over her shoulders and cupped her breasts (count 15). The appellant placed his right hand down the front of KO's jeans and placed his middle finger inside her labia majora (count 14). He proceeded to stroke his finger up and down for a few minutes until a customer rang the service bell.

21 Between 7 August 2000 and 25 December 2000, while KO was working for the appellant at the kiosk, the appellant leaned across her, grabbed something on the counter and dragged his arm across her breasts. At the time of the offence, KO was 12 years of age.

22 On an evening between 1 October 2000 and 31 December 2000, upon completion of KO's shift at the kiosk, the appellant drove her home. Whilst doing so, the appellant let go of the steering wheel and told KO to take control. KO leant across and grabbed the steering wheel. The appellant grabbed both of her breasts and squeezed them several times (count 17). KO released her hands from the steering wheel and the appellant resumed control of the vehicle. He then again released his hands from the steering wheel and KO leant over and grabbed the steering wheel. The appellant grabbed her breasts with one hand as she leant over (count 18). He placed his other hand down the front of her pants and began to stoke his middle finger up and down inside her labia major for a few minutes (count 19). At the time of the offending, KO was 12 years of age.

23 On 26 January 2001, KO stayed with the appellant's family in an apartment in the city after watching the Australia Day Sky Show. KO and the appellant's daughter, MF, were lying on a bed, watching television. The appellant was sitting on the floor beside them. The appellant placed his hands on KO's vagina and proceeded to insert his middle finger in her labia majora and rub up and down for a substantial period of time. At the time of the offence, KO was 12 years of age.

24 The father of the complainant, RG, was a childhood friend of the appellant. The appellant's family and RG's family were close friends and often engaged in social activities together. RG referred to the appellant as an uncle. RG was a friend of the appellant's daughter, BF.

25 On a date between 4 January 1990 and 22 March 1990, RG was swimming in the appellant's swimming pool with the appellant and his family. RG was engaged in a game in which she would swim up to the appellant and the appellant would throw her into the air. On two occasions, the appellant slid his hand inside RG's bathers and placed his hand on her vagina for a period of time before throwing her across the pool. At the time of the offending RG was 7 years of age.

26 On a date between January and December 1995, RG was sleeping in the bedroom of the appellant's daughter, BF. The appellant entered the room and lay beside RG, who was sleeping on a mattress on the floor. The appellant rubbed RG's vagina on top of her clothes with his hand for a long period of time. He then left the room. He returned a short time later and lay next to RG and repeated the conduct. At the time of the offending, RG was 12 years of age.

27 During the Easter weekend between March and April 1995, RG accompanied the appellant and his family to Balingup for an Easter holiday. RG was sleeping in a tent with the appellant's daughter, BF, when the appellant entered and lay down beside RG. The appellant proceeded to rub her vagina on the outside of her clothes with his hand (count 23) and continued to do so for a period of time. He then placed a finger inside her vagina and moved it back and forth inside her (count 24). This continued for a period of time. The appellant's daughter was asleep during the incident. At the time of the offending, RG was 12.

28 Between January and December 2000, RG was employed by the appellant at the appellant's kiosk. Whilst RG was working there the appellant placed his hands down her top and touched her breasts. At the time of the offence, RG was 16 or 17 years of age.

29 In the same period as in count 25, while RG was employed at the kiosk the appellant paid her by placing money in a yellow envelope and sliding it into her bra, touching her breasts while doing so.

30 In the same period as counts 25 and 26, while the appellant was driving RG home from her work at the kiosk he leant over and grabbed her breast.

31 The sentencing judge noted that the offending had involved six children, aged between 7 and 16 years, one of whom was at the time the appellant's sister-in-law, and the others were the children of close family friends or were friends of one or other of the appellant's two daughters. The offences had spanned a period of 15 years. At the time of the offending the appellant was a mature, married man with three children. The first offence had been committed when the appellant was 31 years of age and the last when he was 45 years of age. His Honour noted that it was an aggravating factor that three of the complainants were employed by the appellant when the offences occurred, two of them at the kiosk and the other having been asked to do things around the appellant's home.

32 His Honour observed that the appellant had a tragic childhood, marred by his father's alcohol abuse and by physical, mental and sexual abuse by his father. The appellant had left school at 14 and had had a fairly successful business for quite some time, until the offences came to light. At the time of sentencing, he was 55 years of age. The appellant had no prior convictions for any serious offence.

33 The sentencing judge noted that when confronted by police, the appellant had admitted the offences and had co-operated with police. He had pleaded guilty at an early stage. The appellant had also sought assistance from psychologists as soon as his family learned of the offences and before being contacted by police. At the time of sentencing, he had been attending psychological counselling for 12 months to address his own childhood abuse and his sexual offending. His Honour accepted that the appellant was at a low risk of re-offending and that he had demonstrated genuine remorse.

Indecently dealt with a child under 14, by rubbing the labia majora of her vagina with his fingers.

Sexual penetration of a child under 13, by penetrating her vagina with his fingers.

Indecently dealt with a child under 13, by touching her vagina with his hands.

Sexual penetration of a child over 13 and under 16 by penetrating her vagina with his fingers.

Indecently dealt with a child over 13 and under 16 by stroking her breasts with his hands.

Indecently dealt with a child over 13 and under 16 by rubbing her vagina with his thumb.

Sexual penetration of a child over 13 and under 16 by penetrating her vagina with his fingers.

Sexual penetration of a child over 13 and under 16 by penetrating her vagina with his fingers.

Indecently dealt with a child over 13 and under 16 by touching her breasts with his hands.

Indecently dealt with a child over 13 and under 16 by stroking her breasts with his hand.

Indecently dealt with a child over 13 and under 16 by touching her vagina with his hand.

Indecently dealt with a child over 13 and under 16 by stroking her breasts with his hands.

Sexual penetration of a child under 13 by penetrating her vagina with his finger.

Sexual penetration of a child under 13 by penetrating her vagina with his finger.

Indecently dealt with a child under 13 by touching her breasts with his hands.

Indecently dealt with a child under 13 by touching her breasts with his arm.

Indecently dealt with a child under 13 by touching her breasts with his hands.

Indecently dealt with a child under 13 by touching her breasts with his hands.

Sexual penetration of a child under 13 by penetrating her vagina with his finger.

Sexual penetration of a child under 13 by penetrating her vagina with his finger.

Indecently dealt with a child under 14 by touching her vagina with his hand.

Indecently dealt with a child under 13 by rubbing her vagina with his hand.

Indecently dealt with a child under 13 by rubbing her vagina with his hand.

Sexual penetration of a child under 13 by penetrating her vagina with his finger.

Indecently assault by touching breasts with his hands.

Indecently assault by touching breasts with his hands.

Indecently assault by touching breasts with his hands.

35 The sentences imposed on counts 1, 2, 7, 11, 20 and 21 were ordered to be served cumulatively, making a total of 9 years and 6 months' imprisonment, and the remaining sentences were to be served concurrently with that term and each other. The effective sentence was therefore 9 years and 6 months' imprisonment. The appellant was made eligible for parole.

36 The sole ground of appeal is that the total effective sentence infringed the first limb of the totality principle in that it was disproportionate to the overall criminality involved in all the offences.

37 The legal principles relevant to the disposition of this appeal were not in dispute. An appellate court is not entitled to intervene merely because it would have exercised the sentencing discretion in a manner different than the sentencing judge. It can only intervene if the sentencing judge has made an express or implied material error of fact or law.

38 In this case, the appellant relied upon implied error. He contended that the total effective sentence infringed the first limb of the totality principle, which requires the sentencing judge to ensure that the total effective sentence is an appropriate and just measure of the overall criminality involved in all the offences, viewed in their entirety and having regard to the circumstances of the case, including those referable to the appellant personally: Postiglione v The Queen [1997] HCA 26; (1997) 189 CLR 295, 307 - 308; Roffey v The State of Western Australia [2007] WASCA 246 [24] - [25]. The appellant submitted that the total effective sentence of 9 years and 6 months' imprisonment was so disproportionate to the overall offending as to manifest error.

39 In considering that issue, regard is to be had to sentences customarily imposed for offences of the present type in an endeavour to achieve consistency in sentencing: Hili v The Queen [2010] HCA 45; (2010) 242 CLR 520 [53]; The State of Western Australia v Prince [2011] WASCA 22 [19]. But in doing so the limitations involved must be borne in mind, as inevitably there will be differences in the circumstances of the offenders and of the offences. As this court has made clear, there is no tariff for sexual offences involving children: Roffey [27]; The State of Western Australia v Akizuki [2008] WASCA 267; (2008) 192 A Crim R 373 [3]; RMS v The State of Western Australia [2010] WASCA 76 [24].

40 In support of the appeal, counsel for the appellant referred to a number of cases. The first of those cases was VIM v The State of Western Australia [2005] WASCA 233. In that case, the offender was found guilty after trial of 11 counts of rape, 13 counts of indecent assault and seven counts of sexual penetration without consent against his two stepdaughters. The rape and most of the sexual offences involved penile penetration. The indecent assault offences were of such a nature that they would be classified under the current law as sexual penetration. The sexual abuse commenced when the girls were aged 14 and continued against each for four years. The offences were representative of a continuing course of sexual abuse. The offender was sentenced to a total effective term of 6 years' imprisonment. The court upheld a State appeal against the sentence and in re-sentencing imposed a total effective sentence of 10 years' imprisonment. As it was a State appeal, the total term of 10 years reflected a reduction because of the double jeopardy principle which then applied.

41 In VIM, this court undertook a review of some 25 cases involving multiple (that is, more than five) sexual offences against children where the offender had pleaded guilty. In most, but not all, of the cases there had been at least one count of penile penetration of a child's vagina or anus by the offender. The court observed that the discount for a plea of guilty would generally be towards the higher end of the scale. It concluded that the most common sentence one would expect to see for such offending would be approximately 6 years and 8 months [309].

42 Counsel for the appellant also referred to M v The State of Western Australia [2006] WASCA 256, where the offender had pleaded guilty to 15 counts of sexual penetration of a de facto child under 16 years, seven counts of indecent dealing with a de facto child under 16 years and three counts of procuring a de facto child under 16 years to engage in sexual behaviour. The offences occurred every second night over two months. The offences included penile penetration and penetration by a vibrator of the complainant's vagina and anus, as well as cunnilingus and fellatio and digital penetration of her vagina. The offender also required the complainant to digitally penetrate her own vagina and he masturbated in front of her and showed her an R-rated pornographic video. At the time of the offending, the offender was 37 years of age and the complainant was 12. An appeal against a total effective term of 10 years' imprisonment was dismissed.

43 Reference was made to RMS, in which the offender had pleaded guilty to six counts of indecent dealing and six counts of sexual penetration of a person known to be a lineal relative. At the time of the offending, the offender was 37 years of age and the complainant, his biological daughter, was 12. Most of the sexual penetration offences involved penile penetration. All of the offending occurred over a period of 24 hours. The offender was charged with most of the offences as a result of admissions he made of his own volition to police, not being offences of which the complainant had complained. A total effective sentence of 9 years was reduced on appeal to 7 years.

44 The appellant also referred to Pendleton v The Queen [2002] WASCA 4. In that case, the offender was convicted of nine counts of sexual penetration of a child under the age of 13, 20 counts of indecent dealing with a child under the age of 13, 18 counts of procuring a child under the age of 13 to do an indecent act, 76 counts of indecent recording of a child under the age of 13, six counts of possession of child pornography and one count of showing offensive material to a child under the age of 13. The appellant was a pre-primary school teacher and the complainants were 11 female students who were said to be aged 4 or 5 at the time of the offences. The offences occurred over a period of five years. A pre-sentence report concluded that the offender was at a high risk of re-offending. A sentence of 12 years under the pre-transitional provisions, equivalent to 8 years under the present system, was upheld on appeal.

45 The respondent accepted that on any view the total effective sentence in this case was severe but submitted that it did not exceed a sound exercise of the discretion of the sentencing judge. In support of that submission, counsel for the respondent referred, in particular, to Prince and Hine v The State of Western Australia [2010] WASCA 216.

46 In Prince, the offender was convicted after trial of 17 counts of sexual offences against his granddaughter, who was aged from 9 to 11 years during the period of the offending. The offences included eight counts of sexual penetration (two involving penile penetration, one of penetration with a vibrator and five of fellatio or cunnilingus), three counts of indecent dealing, four counts of procuring a lineal relative to do an indecent act, and two counts of indecently recording the offending conduct. The offender denied that the offences had occurred and showed no remorse for the conduct. A total effective sentence of 5 years and 3 months' imprisonment was increased on appeal to 8 years.

47 In that case, this court examined a number of cases involving multiple counts of sexual offending against children where the offender had pleaded guilty. A table summarising the result of that examination are set out in the reasons for judgment of McLure P at [20]. I have considered the cases referred to in the table but I do not consider that any of them provides substantial assistance in light of the circumstances of this case.

48 In Hine, the offender entered fast track pleas of guilty to 27 offences. They involved 13 counts of sexual penetration, one count of indecent dealing with a child, two counts of indecently recording a child, seven counts of using electronic equipment with intent to procure a person he believed to be under 16 to engage in sexual activity, and four counts of possessing child pornography. The offender was aged between 20 and 22 over the period of the offending and the 11 complainants were aged between 13 and 15 years. The offender used internet chat rooms to make contact with, and to groom, the complainants. Six of the counts of sexual penetration involved sexual intercourse, six involved oral sex and one involved digital penetration. The offender offered money to seven of the complainants in exchange for sexual conduct. A search of the offender's home revealed a large quantity of child pornography. The offender was immature for his age and a hearing disability had profoundly affected his ability to engage socially with others. A total effective sentence of 12 years and 2 months' imprisonment was reduced on appeal to 9 years and 2 months.

49 Both Prince and Hine provide only very limited guidance in the present case. In Hine, the offender used internet chat rooms in a predatory manner to locate and groom children, and the nature of the offending was more serious. In Prince, the offender pleaded not guilty and showed no remorse, and the offences, which included penile penetration, fellatio and cunnilingus, involved a lineal relative.

50 I have also considered Rowan v The State of Western Australia [2009] WASCA 185, which was canvassed in argument on the appeal. In that case, the offender entered fast track pleas of guilty to 13 counts of sexual offending against children. Seven of the counts involved sexual penetration, all of those offences involving cunnilingus. The other counts concerned indecent dealing and similar offences. There were four complainants, whose ages ranged from 8 - 9 years to 14 - 15 years. Two of the complainants were sisters. The offending occurred over a period of approximately 12 months when the offender, a widowed pensioner, was aged between 74 and 75 years. The offending was not associated with the use of violence, intimidation or threatening behaviour and there was no evidence of any grooming. The offender induced the complainants to participate in the conduct by paying money and, in one instance, supplying alcohol. On appeal, a total effective sentence of 15 years' imprisonment was reduced to 8 years.

51 It is undoubtedly the case that the offending by the present appellant was very serious, particularly having regard to the number of offences, the ages of the complainants, and the length of time over which the offending occurred. In several cases the offences were committed while the complainant concerned was employed by the appellant. The offending only came to light some nine years or so after the last offence when the appellant, having initially succumbed to demands for money made by one of the complainants, finally declined to accede to continuing demands. He informed his family of his offending and reported it to police.

52 However, while the offending was very serious, the nature of the conduct concerned was not of the most serious kind. In that connection, it is accepted that the seriousness of the offence of sexual penetration depends upon the circumstances of the offending as a whole, not just the nature of the penetration. But other things being equal, the sentences imposed for penile penetration are ordinarily somewhat higher than for other types of sexual penetration. In this case, the offences of sexual penetration did not involve penile penetration and none of the offences involved the use of force or coercion. All of the offences appear to have been largely opportunistic in nature.

53 There were significant mitigating factors. The appellant admitted the offences and cooperated fully with police. He pleaded guilty at an early stage. Before the police became involved the appellant had sought counselling and psychological help in respect of the offending. He has shown remorse and insight into his conduct, and it was the opinion of a psychologist treating the appellant that he was at a low risk of re-offending. That opinion was not challenged.

54 Having regard to the nature and circumstances of the offending and the mitigating factors, I consider that a total effective sentence of 9 years and 6 months was disproportionate to the overall criminality involved. I would allow the appeal and set aside the sentences imposed by the sentencing judge.

55 It is necessary then to re-sentence the appellant. I would not interfere with the sentences imposed for each of the individual counts. But having regard to the matters to which I have referred, I would sentence the appellant to a total effective term of 7 years and 6 months' imprisonment. To that end, I would make the sentences imposed on counts 1, 2, 11, 20 and 21 cumulative and the sentences on the other counts concurrent with those sentences and with each other. The appellant would be eligible for parole.