Criminal law - Appeal against sentence - One offence of indecent dealing - Plea of guilty at earliest opportunity - Genuine remorse shown - Exceptional case - No point of principle

Sentencing Act 1995 (WA)

1 JUDGMENT OF THE COURT: The appellant appealed against the sentence of 10 months' imprisonment which was imposed on 16 June 2008 in the District Court in relation to a single count of indecent dealing with his stepchild, who was at the time over the age of 16 years. The offence occurred on 1 July 2007.

2 At the time of the offence the appellant was 40 years old and the victim was 17 years old. The appellant was married to the victim's mother and they had lived together for 13 years. They began to cohabit when the victim was 4 years old and she treated the appellant as her father. There were two children of the marriage who also lived with the appellant and his wife. Although the victim was 17 years old, she had a learning disability which reduced her effective mental age to that of about a 10 year old.

3 On the evening of the offence, all of the family had been to a party. They arrived home at about 1 am. The appellant was intoxicated, which as the sentencing judge said, provided a significant explanation for his behaviour. The intoxication was possibly exacerbated by medication that he was taking at the time.

4 The victim slept in a caravan located next to the family home. On returning from the party she went to the caravan, dressed in her pyjamas and was watching a DVD. The appellant, who went outside because he was feeling ill from the effects of the alcohol, went to the caravan, knocked on the door and on entering the caravan, went to the victim's bed. He there removed his trousers and underwear and when he was lying on the bed he commenced rubbing his erect penis against the victim's genital area outside her clothing. He kissed her on the mouth three times and inserted his tongue into her mouth.

5 The victim said something which indicated she felt uncomfortable with what was occurring and the appellant immediately appreciated the inappropriateness of his behaviour and left the caravan. The appellant went away with the thought of committing suicide, but did not go ahead with this out of an appreciation that this would provide extra difficulties, emotional and psychological, for the victim and other members of the family.

6 The victim complained to her mother the next morning. The appellant made immediate admissions to his wife and then went to the police where he made full admissions to them in a video-recorded interview. The appellant has at all times accepted responsibility for his offending. The appellant was then placed in custody and did not apply for bail due to the remorse he was suffering for his conduct. As a result, he spent 101 days in prison during which time he again considered suicide.

7 The trial judge noted that the trauma of the serious breach of trust by the appellant had left the victim suffering a lack of confidence and confusion and that she was likely to harbour confusion about who she could trust. The trial judge found that as a result of the incident, the family unit had split up and as a result the other children of the household were confused and traumatised.

8 The appellant was ultimately admitted to bail when it appeared that the court process would take much longer than had originally been anticipated. The appellant then enrolled in a treatment programme. A report from SafeCare which was placed before the sentencing judge indicated that the appellant had been making very satisfactory progress and that his participation had been exemplary. The report recorded the fact that the marriage seemed irreparable, that he was heading for divorce and that the property on which he had been living had been sold. The appellant also lost the interest he had in a business which he had operated with his wife. The SafeCare report indicated that alcohol and medication were factors in lowering his inhibitions and altering his judgment. The appellant however, did not contend that this affected his judgment to the point where he did not know what he was doing or that what he was doing was wrong. The report also assessed the appellant as being at the lower end of risk of re-offending, that prison was unlikely to improve his treatment responses and could well inhibit them due to the risk of suicide and depression. The report recommended that the appellant continue with the programme he was on rather than a programme in prison which would be less beneficial.

9 A psychological report indicated that the appellant accepted responsibility and had shown genuine remorse. The appellant was supported by a number of references which spoke of his good character before the offence.

10 The learned sentencing judge acknowledged that there was much to be said in mitigation including his cooperation with the police and his remorse and empathy for the victim. The learned sentencing judge considered the sentencing options available to him and concluded that due to the seriousness of the offence, an immediate term of imprisonment should be imposed. In effect, the sentencing judge concluded that a suspended sentence was not open to him. The trial judge then imposed the sentence which is referred to above.

11 After imposing sentence, the sentencing judge made some additional remarks. These were in a sense words of encouragement to the offender in which the judge expressed the hope that the term of imprisonment 'may be to your advantage in that the complainant and your children may accept you have been adequately punished and that will leave a cleaner slate with which to effect a reconciliation of some sort in the future'.

13 The first is that the sentencing judge erred by reasoning that punishing the appellant through the imposition of an immediate term of imprisonment would assist in the appellant's reconciliation with his family, including the victim.

14 The second ground alleges that the sentencing judge erred in failing to impose a suspended sentence in circumstances where that sentence was open to him.

15 What was said by the trial judge about imprisonment assisting with reconciliation was something said by the judge after he had imposed sentence. They were, in effect, words of encouragement and were not part of the reasoning which led to the imposition of the sentence. Ground 1 should be dismissed.

16 This is an exceptional case because of the overwhelming list of mitigatory factors. This was a single incident carried out by a person under the influence of alcohol, who immediately realised the seriousness of what he had done and then in the immediate aftermath, contemplated committing suicide, made admissions to the victim's mother the next morning, went to the police the next day and made full admissions to them. The offence did not involve any threat, coercion or violence. There was no pre-planning or premeditation; the victim was fully clothed when the offence occurred; the offending behaviour was of a short duration; when the victim indicated discomfort the appellant immediately desisted; the appellant entered a plea of guilty to the offence of which he was convicted at the earliest possible opportunity; as an indication of his remorse he spent 101 days in custody before applying for bail; he then enrolled in and committed himself to the conditions of a SafeCare programme; he revealed himself as highly motivated to understand the origins of his offending behaviour and to ensure that it did not reoccur; he continued to express his deep remorse; he accepted full responsibility for the offence; he had no criminal record; he was in full-time employment when sentenced and as a result of the offence, he lost his business, his house, his marriage and lost contact with the victim and the children of the marriage.

17 Section 6 of the Sentencing Act 1995 (WA) provides that a sentence imposed on an offender must be commensurate with the seriousness of the offence, must be determined by taking into account the statutory penalty, the circumstances of the commission of the offence, the aggravating and mitigating factors and the court must not impose a sentence of imprisonment on an offender unless it decides that the seriousness of the offence is such that only imprisonment can be justified, or the protection of the community requires it.

18 The sentencing judge took into account the statutory considerations but erred in deciding in effect that the seriousness of the offence was such that only a sentence of immediate imprisonment was appropriate and that a suspended sentence was not a disposition open to him. It is true, as the respondent submitted, that there has been a firming up of sentences in cases involving sexual offences against children, particularly in the case of intrafamilial sexual offences. See VIM v Western Australia [2005] WASCA 233; (2005) 31 WAR 1 [288]. However, non-custodial sentences are not extraordinary for a single incident of indecent dealing, particularly those involving the touching of the breasts of a young girl and when custodial penalties are imposed, they have ranged from as little as 9 months to 18 months at the most, before the 2003 sentencing amendments, with sentences at the highest end of the range involving fondling of genitalia. See Ferry v The Queen [2003] WASCA 207 [81] (Anderson J, Murray & Wheeler JJ concurring). The respondent pointed to the fact that the trial judge concluded that the appellant's actions were preparatory to having sexual intercourse with the complainant and that this plus the insertion of his tongue into the victim's mouth made this a more serious form of indecent dealing. It is also true as the respondent submitted, that in the cases of intrafamilial sexual abuse, matters personal to the offender are of less mitigatory weight than might otherwise be the case. See for example MPD v The State of Western Australia [2008] WASCA 57 [58]. In Hodder v The State of Western Australia [2005] WASCA 257 [5] the court listed a number of cases of indecent dealing which reveal that non-custodial sentences are sometimes imposed in cases of a single incident of indecent dealing.

19 Although mitigating factors are not given as much weight as they are in relation to some other types of offences, that does not mean that they are given no weight at all. The overwhelming weight of the mitigating circumstances in this particular case, led this court to the conclusion that a suspended sentence was a sentencing option open to the trial judge and that the learned judge erred in failing to impose a suspended sentence. A suspended sentence was a disposition commensurate with the seriousness of the offence.

20 For those reasons the appeal was allowed and the appellant was re-sentenced, taking into account the above factors, to a term of imprisonment of 10 months, but suspended for a period of 2 years subject to the standard obligations pursuant to s 83 of the Sentencing Act 1995 (WA) and subject to a programme requirement pursuant to s 84A requiring the appellant to continue with, and complete the SafeCare programme. The sentence was backdated to commence on 10 March 2008.