Court of Appeal (WA)|2008-10-23|Before: Wheeler JA

KC -v- THE STATE OF WESTERN AUSTRALIA [2008] WASCA 216 (23 October 2008)

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

CITATION : KC -v- THE STATE OF WESTERN AUSTRALIA [2008] WASCA 216

Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA

Citation : KC -v- THE STATE OF WESTERN AUSTRALIA

Criminal law - Appeal against sentence - Multiple sex offences against young children - Whether total effective sentence infringed the totality principle

Sentencing Legislation Amendment and Repeal Act 2003 (WA)

3 BUSS JA: On 23 September 2005, the appellant was convicted in the District Court at Kalgoorlie, on his pleas of guilty, of fifteen counts in an indictment, as follows:

(a) 4 counts of sexual penetration of a child whom the appellant knew to be his de facto child or a lineal relative, in circumstances where that child was under 16 years of age, contrary to s 329(2) and 329(9)(a) of the Criminal Code;

(b) 3 counts of unlawfully and indecently dealing with a child under the age of 14 years, contrary to s 183 of the Criminal Code;

(c) 1 count of unlawfully and indecently dealing with a child under the age of 13 years, contrary to s 189(3) of the Criminal Code; and

(d) 7 counts of indecent dealing with a child whom the appellant knew to be his de facto child or a lineal relative, contrary to s 329(4) and 329(10)(a) of the Criminal Code.

4 The maximum penalties for the offences at the relevant times were:

s 183 unlawfully and indecently dealing with a child under the age of 14 years

Imprisonment with hard labour for 7 years, with or without whipping

s 183 unlawfully and indecently dealing with a child under the age of 14 years

Imprisonment with hard labour for 7 years, with or without whipping

s 329(2) and s 329(9)(a) sexual penetration of a child whom the appellant knew to be his de facto child or a lineal relative, in circumstances where that child was under 16 years of age

s 329(4) and s 329(10)(a) indecent dealing with a child whom the appellant knew to be his de facto child or a lineal relative

s 183 unlawfully and indecently dealing with a child under the age of 14 years

Imprisonment with hard labour for 7 years, with or without whipping

s 189(3) unlawfully and indecently dealing with a child under the age of 13 years

s 329(4) and s 329(10(a) indecent dealing with a child whom the appellant knew to be his de facto child or a lineal relative

s 329(4) and s 329(10)(a) indecent dealing with a child whom the appellant knew to be his de facto child or a lineal relative

s 329(2) and s 329(9)(a) sexual penetration of a child whom the appellant knew to be his de facto child or a lineal relative, in circumstances where that child was under 16 years of age

5 As to the offences under s 392 of the Criminal Code, the penalties were not amended between the date of commission of the offences and the date of sentencing.

6 Sections 183 and 189 of the Criminal Code were, however, repealed by the Law Reform (Decriminalisation of Sodomy) Act 1989 (WA) and the Acts Amendment (Sexual Offences) Act 1992 (WA) respectively. It is apparent, from the facts of the present case, that the equivalent offence as at the date of sentencing was the offence under s 329(4) and s 329(10)(a) of the Criminal Code. The penalty as at the date of sentencing was imprisonment for 10 years. However, by virtue of s 10 of the Sentencing Act 1995 (WA), the lesser penalty as at the date of commission of the relevant offences, namely imprisonment for 7 years, applied to the appellant.

7 The learned sentencing judge, Yeats DCJ, imposed sentences of immediate imprisonment, after making the one-third reduction required by cl 2(1) of Sch 1 of the Sentencing Legislation Amendment and Repeal Act 2003 (WA) (the Amendment and Repeal Act), as follows:

(e) counts 9 and 10: 1 year 4 months on each count;

8 The learned sentencing judge ordered that the sentences on counts 1 - 4 be served concurrently with each other, the sentence on count 5 be cumulative on counts 1 - 4, the sentence on count 6 be cumulative on counts 1 - 5, the sentences on counts 7 - 13 be served concurrently with each other but cumulative on the other sentences, and the sentences on counts 14 and 15 be served concurrently with each other but cumulative on the other sentences.

9 The total effective sentence was therefore 10 years 8 months' immediate imprisonment. The learned sentencing judge made a parole eligibility order, and ordered the sentences to commence on the date of sentencing, that is, 23 September 2005.

Application for extension of time to appeal against sentence

10 The time limited for the appellant to commence an appeal against sentence expired on 14 October 2005.

11 On 2 May 2008, the appellant applied for an extension of time to appeal against sentence. His application for an extension is supported by two affidavits sworn by his solicitor, Paul Lothar Ralf Meyer, one sworn on 2 May 2008 and the other on 3 June 2008.

12 On 3 June 2008, Miller JA ordered, relevantly, that the application for an extension of time be heard together with the application for leave to appeal and the appeal.

13 It is settled that where there has been a lengthy delay, the court requires exceptional circumstances to be shown before granting an extension of time, unless it is established that there will be an miscarriage of justice if an extension is not granted. See Lancaster v The Queen [1989] WAR 83, 85; AD v The State of Western Australia [No 2] [2007] WASCA 207 [15].

14 At the hearing of the appeal, counsel for the respondent did not oppose the grant of an extension of time. The court decided, at the hearing, that the appellant's delay had been explained satisfactorily in the affidavits sworn by his solicitor, that exceptional circumstances had been shown and that, accordingly, the extension should be granted.

15 The circumstances surrounding the delay are exceptional. The appellant was granted legal aid for his appeal in January 2006, about two months after the time limited for appeal had expired. However, the correspondence annexed to Mr Meyer's affidavits demonstrates that the appellant's former solicitors failed to reply to a number of requests for progress reports, both from the appellant himself, and from the Legal Aid Commission. In February 2008, the appellant asked a Legal Aid practitioner to assist him in ascertaining the progress of his appeal, and this query ultimately resulted in the appointment of new solicitors. The process of transferring the grant of aid, and the ability of the appellant's new solicitors to begin an appeal, were hampered by an apparent lack of co-operation on the part of the appellant's former solicitors. The appellant's efforts to progress the matter appear to have been reasonable, having regard to his earlier confidence in his former solicitors and his unfamiliarity with the legal process. His new solicitors appear to have acted as promptly as was reasonably possible.

16 The appellant committed 15 offences against four children. Two of them were his step-children. The other two were his step-grandchildren.

17 The offences committed against the first complainant, TM, occurred when she was between the ages of about 5 and 12 years. They involved the appellant rubbing his penis against her vagina, inserting his penis into her mouth, performing cunnilingus on her, and simulating sexual intercourse with her.

18 The offences committed against the second complainant, JM, commenced when she was aged 8 years, and involved the appellant rubbing her vagina, rubbing his penis against her leg, masturbating in her presence, placing her hand on his penis, and rubbing his penis on her face and neck.

19 The offences committed against the other two complainants, SB and TB, occurred when they were aged about 5 years and 8 years respectively, and involved the appellant inserting his finger into their vaginas.

20 The prosecution's amended statement of material facts in relation to the offences reads:

Complainant TM (Counts 1-5)

Count 1

[TM] was born [in] 1982. She was living [in rural Western Australia] when the accused moved into their home. At the time [TM] was living with her mother ..., her sister [JM] and her two brothers.

Whilst she was in pre-primary, aged 5, she recalls that the accused would start to come into her bedroom at night and touch her inappropriately. He did this until she was about 9 and would do it practically every night.

One incident that she recalls happened some time between 28 August 1987 and 30 August 1988. The accused came into her bedroom at night time and pulled her knickers down whilst she was in her bed. [TM] could see that it was the accused because her mother would leave a light on in the laundry.

Once he had pulled her knickers down he would separate her legs with his hand and begin to rub his fingers up and down against the outside of her vagina. After doing this for a while he would roll her onto her stomach and then leave her bedroom.

Count 2

... between 28 August 1988 and 22 March 1990, when she was between 6 and 7, the accused took [TM] down to a shed at the rear of the property. The shed was a large shed and was used by the family as a family/games room as well as being a garage for a number of motor vehicles.

The accused pulled [TM's] knickers down and placed her on a motorbike that was parked in the shed. The accused then pulled his penis out and rubbed it on the outside of [TM's] vagina. Eventually he stopped and [TM] pulled her knickers back up and the two left the shed and went back to the house.

Counts 3-4

...

Sometime between 1 August 1992 and 1 October 1994 ... the accused told [TM] to go into his bedroom which was situated at the front of the house. It was night time and [TM's] mother was at work. At this stage [TM] was aged somewhere between 9 and 11.

When [TM] entered the room she noticed that a pornographic movie was playing on the television in the bedroom. At the time of her entering the room the movie depicted a woman performing oral sex on a man. The accused laid down on the queen sized bed in the bedroom and lowered his pants to his knees exposing his erect penis.

The accused pointed to the television and told [TM] to do the same to him. [TM] placed the accused's penis into her mouth and began to perform oral sex (Count 3).

After a while the scene on the movie changed and the man began to perform oral sex on the woman. The accused lowered [TM's] knickers and told her to lie down, which she did. He then began to lick the outside of her vagina. After he had finished this [TM] pulled her knickers up and returned to bed (Count 4).

Count 5

Sometime between 28 August 1992 and 30 August 1994, ... [TM's] mother was in the kitchen cooking dinner. [TM] was in the lounge on the couch watching television. She was lying on her back.

The accused came into the room and lay on top of [TM] with his stomach resting against hers. Both were clothed at the time.

The accused began to rub up against her as if he was having sex with her. Whilst he was doing this [JM] came into the room and saw what the accused was doing. Seeing her come into the room, the accused got off [TM] and left.

The accused would always tell [TM] not to tell anyone. Her mother once asked her if the accused was touching her inappropriately and [TM] told her mother what was happening, but nothing occurred.

The accused stopped committing offences against her when [JM] left the house. [TM] was 12 at that time.

Complainant JM (Counts 6 - 13)

[JM] was born [in] 1980 and was just under 7 when the accused moved into her home. Within 3-4 weeks of him moving in the accused began to sexually abuse her.

Count 6

During the Christmas holiday period between 1 December 1988 and 1 February 1989 [JM] was 8 years old. She was returning with her family from a Christmas party and had fallen asleep in the back of the family car. She awoke to find the accused pulling her pants down and lying on top of her. Despite it being dark, she could see that it was the accused pulling her pants down as there was a light coming from the front veranda. He pulled her pants and knickers down and began to rub her vagina and chest with his hand.

She tried to push him off but he was too heavy. [JM] began to feel sick and vomited on him, calling out for her mother. The accused pulled her pants up and lifted her out of the car. She began to hit and kick at the accused and ran inside.

Later that evening the accused went into her bedroom and told her that she had made herself sick on purpose in order to get attention. He told her that if she kept trying to get attention like that her mother would put her in a home. This stopped [JM] from crying as she was so frightened.

Count 7

Not long after her sister [TM's] 9th birthday, between 28 August 1991 and 1 October 1991, [JM] and [TM] were sleeping together in their mother's bed. She was woken when she felt someone trying to get into bed with them. Thinking it was her mother, [JM] rolled over to make some room.

She heard the accused whispering to [TM] and realised that it was him. He had positioned himself between [JM] and [TM]. She felt the accused roll over to her side of the bed and push himself up against her. She was wearing short pyjamas and could feel the accused rubbing his penis against the back of her leg, pushing his hand between her legs.

[JM] called out for her mother and the accused told her to shut up or else she would wake up the whole house. They were living in [JM's] grandparents' home at the time and the accused told her that if she kept the noise up then they wouldn't let her live there anymore.

Counts 8-10

Sometime between 31 December 1992 and 1 February 1993 whilst still on school holidays [JM] had stayed up late watching television and had fallen asleep in her sleeping bag on the couch. She was 12 at the time. She was awoken when she felt her pyjama pants being pulled down. When she opened her eyes she saw the accused standing over her. He pulled her pants down and touched her vagina which caused her pain. She continued to pretend to be asleep and rolled over but he rolled her back again and tried to insert his finger into her vagina (Count 8).

The accused then placed his hand under her pyjama top and began to rub her chest (Count 9). Whilst doing this the accused undid his pants and began to rub his penis in front of her (Count 10).

[JM] cried out for her mother and the accused put his penis away and stopped touching her. He zipped her sleeping bag back up and left her.

Counts 11-13

Sometime in September 1994, between 31 August 1994 to 1 October 1994, she was asleep in her room. At the time her mother was [interstate]. [JM] was still living at the address in [rural Western Australia]. She awoke to feel the accused trying to put his tongue into her mouth. She kept her mouth closed and her teeth clenched.

The accused then undid his pants and exposed his erect penis which he placed against her face, rubbing it against her face and back. She tried to pull away by pulling the blankets over her head, but he pulled them down and continue to rub his penis against her whilst climbing onto her bed (Count 11).

[JM] rolled onto her stomach and he climbed on top of her, pulling her arms behind her and used her hand to touch his penis (Count 12).

[JM[ tried to sit up after pulling her arm free but he tucked her arm underneath her and put his arm on her shoulder to hold her down. He then tried to put his penis into her mouth but she pushed her head into her pillow and held it there. The accused then rubbed his penis against the back of her head until he eventually ejaculated onto her (Count 13).

After ejaculating onto her the accused left the room. [JM] tried to dry her neck and stayed awake until the following morning. Once she had heard the accused go to work [JM] packed her things and ran away from home, going to live with her father ...

She was 14 when this offence occurred.

Complainant SB (Count 14)

[SB is] the accused's step-granddaughter. Her birth date is ... 1996 and [she] was 8 at the time of offending. She ... refers to the accused as 'poppy'.

When he comes around to her house the accused plays in her bedroom but she will tell him to get out because she doesn't like him being in there.

On a date unknown between 1 May 2004 and 17 November 2004 the accused was playing with [SB] in the laundry of her home. He pulled down her pants taking off her pants, underwear and shirt. The accused then inserted his finger into her vagina. After removing his finger he put [SB's] clothes back on her and gave her money so as not to tell her parents.

Complainant TC (Count 15)

[TB] was born [in] 1999 and was 5 years old when the accused offended against her. ...

[TB is the accused's step-granddaughter and] refers to the accused as ['poppy']. ... the accused visits her regularly.

On a date unknown between 1 May 2004 and 17 November 2004 whilst visiting [TB] at her home ..., the offender pulled [TB's] pants down. She was in her bedroom on this occasion. Whilst her pants were down he inserted his finger into her vagina. After removing his finger he pulled her pants back up and gave her money, telling her not to tell anyone.

The reports before the learned sentencing judge

21 The material before the learned sentencing judge included a pre-sentence report dated 27 July 2005 by a senior community corrections officer and a report dated 15 July 2005 from a forensic psychologist, Ms Claire Lynn.

22 Ms Lynn conducted a clinical interview with the appellant on 13 July 2005 and administered psychometric testing. She noted in her report that, overall, the appellant acknowledged responsibility for his offending. He appeared to attribute the offending to a distorted perception of his victims and alcohol abuse. He denied any sexual motivation. Ms Lynn recorded that the appellant was unable to demonstrate significant insights into his behaviour or the implications for others. This inability was probably a consequence of his detached style of interaction.

23 The Static-99 is an internationally recognised risk assessment measure. Ms Lynn used the Static-99 to estimate the appellant's risk of sexual re-offending. She said in her report that the appellant's Static-99 score placed him in the 'medium-low' risk category. Ms Lynn expressed the opinion, however, that his risk may be significantly higher than suggested by his Static-99 score as a result of the number of victims and the length of time during which he offended against them.

24 According to Ms Lynn, the provision of treatment for the appellant in order to address his 'medium-low' risk of reoffending, as estimated by the Static-99, would present several challenges because of his 'poor problem recognition', minimal and distant style of interaction with others and his then location in rural Western Australia. She noted, however, that the appellant had expressed a willingness to participate in a specialist sex offender treatment program and any other available treatment programs. Ms Lynn suggested that substance abuse counselling could be beneficial.

25 The learned sentencing judge said she would sentence the appellant on the basis of the fifteen counts in the indictment and would not take account of any submissions as to ongoing periodic or representative counts (ts 38). Before this court, the respondent did not challenge that approach.

26 The learned sentencing judge made these remarks:

You come before the court as a 47-year-old man who has a moderate record of prior offending, most of which relates to traffic and alcohol-related offending, but you do have ... an assault occasioning bodily harm and then enter a dwelling with intent in 1991.

I accept that all of this offending was alcohol-related because the reports before me indicate that you have had quite a serious problem with alcohol. I have before me a pre-sentence report and a psychological report. I understand that you were born and grew up in the country here in Western Australia and your parents, unfortunately, passed away when you were quite young. You were born in the Southern Cross area and your parents passed away within a few months of each other when you were only 10 years of age.

I understand you were then sent to live with an auntie in Sydney where you remained for the next five years and I understand she was a very strict disciplinarian and you were not happy there. You returned to the wheatbelt and since that time you have worked on farms. You have always been in employment and you have been in a relationship with your wife for some 20 years. You married her, as I understand, about eight years ago.

You have never earned huge amounts of money, but you're a man who earns about $1100 a fortnight including accommodation. You have some savings and a vehicle valued at $20,000. During your life you have supported your family by your employment. You are, I understand, a hardworking man who possibly because of the isolation you experienced, being in isolated areas, working very long hours, working very hard and taking on a wife who had four children from a previous relationship turned to alcohol and drinking beer as your way of coping with what may have been a rather stressful and isolated time ...

I say that not to excuse in any way what you have done, but just to put you as a human being in context in relation to this offending over such a lengthy period of time. The psychologist's report has assisted me considerably when I'm looking at the issue of you as a person and how you deal with the question of acceptance of what you have done. I understand you accept and take full responsibility for what you have done, ... and that you regret what you have done, yet you continued to do this not only over a considerable period of time with your own stepdaughters, but you started again with your step grandchildren. That is a matter of some deep concern to the court.

The psychologist has judged you as medium to low risk of reoffending by the Static-99 score, but however considers you to be significantly higher than reported when one considers the number of victims and the length of time over which you have offended. The psychologist's report notices your inability to demonstrate any significant insights into your behaviour and your excuse being alcohol, which can't excuse but does explain to some extent what you were doing.

...

... the very young age of all of these children when you first sexually interfered with them is extremely serious. They were young children who had no way of defending themselves or avoiding you. What you did was - and I accept was - like grooming behaviour, preparing young girls for increasing your sexual activity against them by starting them when they're only five and eight years of age.

The breach of your position of trust is compounded by being the stepfather and step grandfather of these four little girls when you commenced your offending and it's compounded in another way by the fact that your wife was devoted to you. She loved you and she continues to support you and that extreme support that you had from your wife has meant that, as I understand it, the girl [JM], who is now an adult of course, has been unable to maintain any relationship with her own mother because of your activity and your wife's devotion to you.

I consider your breach of trust to be an extremely serious factor that always requires this court to look to general and personal deterrence and punishment as the dominant features of the sentencing process. It is also of considerable significance that the offending went on for a period of some 17 years, from 1987 to 2004. That is a considerable period of time and it is a matter of considerable concern that it would go on that long.

Starting again on your step grandchildren is just inexcusable. Because of the young age of the children, there was coercion and although the physical coercion was not so great, the mental coercion - threatening [JM] that she would be kicked out of the home if she told anyone and then offering financial rewards to a five-year-old and an eight-year-old not to tell their parents about what you had done to them.

I have had victim impact statements which I have read this morning and it seems to me when one reads the victim impact statements such as that prepared by [JM] that victim impact statement epitomises what this court knows happens to young children when they are sexually interfered with. They lose their innocence. They lose the joy of having a proper sex life. For reasons that we don't fully understand, they have difficulties right through their entire lives because of what you have done to them.

I accept that at the time you were doing them, you were probably so drunk that you weren't thinking about the effect it had on them, but it's important that you realise the gross harm you have done to these four people, particularly to your step grand-daughters. The effect on a victim doesn't make it any worse but it ... keeps in focus for the court the seriousness of this offending ... when the court is looking at appropriate sentences.

In your case, in mitigation I do take account of your early pleas of guilty. The fact that you have pleaded guilty in the Magistrates Court and did not require these children to give evidence has significantly assisted not only this court but your victims because they don't have to now keep all of that in the forefront of their minds and have to relive it in giving evidence before this court.

I also accept that you deeply, deeply regret what has happened. You don't attempt to justify it. I accept that there is remorse in the sense that you have pleaded guilty and I accept that you are a man who can expect - when you are released your present employer will be willing to reinstate you so that you can go back to having a life that is socially and personally rewarding with your wife.

...

27 The appellant does not attack any of the individual sentences imposed on him. The sole ground of appeal alleges that the learned sentencing judge erred in imposing a total effective sentence which infringed the totality principle, having regard to the overall criminality involved in the various offences viewed in their entirety and all the circumstances of the case, including those referable to the appellant personally.

The relevant principles of appellate review

28 An appellate court may intervene in a sentencing appeal if a material error of fact or law is apparent in the sentencing judge's reasons. Also, an appellate court may intervene if error may be inferred on the ground that the result is unreasonable or unjust; that is, the sentence imposed is manifestly excessive, manifestly inadequate or infringes the totality principle. An appellate court may not, however, substitute its own opinion for that of the sentencing judge merely because the appellate court would have exercised the sentencing discretion in a manner different from the sentencing judge. The High Court has emphasised that there is no single correct sentence, and that sentencing judges are to be allowed as much flexibility in sentencing as is consonant with consistency of approach and as accords with the applicable statutory regime. See Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665 [15]; Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357 [27].

29 The totality principle usually applies where an offender is to be sentenced for more than one offence or where he or she is serving a term of imprisonment, at the time of sentencing, for another offence. The principle comprises two aspects. First, the total effective sentence imposed on the offender must bear a proper relationship to the overall criminality involved in all of the offences (including those, if any, in respect of which the offender is still serving a term of imprisonment), viewed in their entirety, having regard to all relevant circumstances including those referable to the offender personally (and including, for example, the desirability of accommodating any wish to rehabilitate). Secondly, the total effective sentence imposed on an offender should not constitute a 'crushing' sentence; that is, it should not destroy any reasonable expectation of useful life after release from custody. Generally see Postiglione v The Queen [1997] HCA 26; (1997) 189 CLR 295, 307 - 308 (McHugh J); Jarvis v The Queen (1993) 20 WAR 201, 216 (Anderson J); Johnson v The Queen [2004] HCA 15; (2004) 78 ALJR 616 [22]; Vlek v The Queen (Unreported, WASCA, Library No 990153, 29 March 1999), 12 (Anderson J); Carr v The State of Western Australia [2006] WASCA 125; (2006) 166 A Crim R 1 [6] (McLure JA), [66] (Buss JA).

30 Also, the totality principle may have application, in some limited circumstances, by way of analogy, where an offender has already served a term of imprisonment imposed for a prior offence. See Mill v The Queen (1988) 166 CLR 59, 66; Vlek, (10) (Anderson J); Barnes v The State of Western Australia [2004] WASCA 258 [15] (McKechnie J); Carr [7] (McLure JA).

31 It is plain, from the decision of the High Court in Pearce v The Queen (1998) 194 CLR 610, 624, that where an offender is being sentenced for more than one offence, the sentencing judge must determine an appropriate sentence for each offence and then consider questions of cumulation or concurrence, as well as the question of totality. There is, however, some flexibility in the application of the principle enunciated in Pearce. See Johnson [26]; Markarian [27]. In R v Abboud [2005] NSWCCA 251, Rothman J (with whom Grove and Howie JJ agreed) said:

It has often been stated that in sentencing an offender, an appropriate sentence must be fixed which considers all of the questions associated with the criminality of that offence. In the case of multiple sentences for multiple offences, the totality principles adumbrated by the High Court in Pearce v R (1998) 194 CLR 610 are well known and ought to be applied. I have already referred to the flexibility which nevertheless remains in a sentencing judge and was referred to in Johnson, supra. In Johnson, the joint judgment, cites, with approval, the judgment of the High Court in Mill (see paras [18] and [19] of Johnson) and deals then with an argument that Mill and Pearce are inconsistent or internally inconsistent. The High Court makes clear that there is no inconsistency between Mill and Pearce and that each reflects the level of flexibility that must be retained by a sentencing judge in applying the principles of sentencing. Nevertheless, the approach in Mill is recognised as the orthodox approach to sentencing. It provides that a separate sentence will be imposed in relation to each separate offence, taking into account the matters that affect that sentence. It is only at the end of the process that the totality principle will be accommodated, preferably, by making the sentences wholly or partially concurrent [36].

32 It was submitted on behalf of the respondent that the learned sentencing judge gave careful consideration to the objective seriousness of the relevant facts. Her Honour identified the aggravating and mitigating circumstances, including the mitigating features of the early pleas of guilty and the absence of any penile penetration. She had proper regard to the general principles of sentencing relating to offences of this nature, and concluded that a total effective sentence of 10 years 8 months immediate imprisonment was necessary. This sentence properly reflected the objective seriousness of the appellant's conduct and served the paramount purposes of deterring others and protecting children.

33 Counsel for the respondent contended that no error had been demonstrated in the imposition of the total effective sentence. Further, the total effective sentence was within the range of sentences customarily reserved for the offences of which the appellant was convicted, and reflected and was proportionate to the overall criminality of his conduct.

34 In VIM v The State of Western Australia [2005] WASCA 233; (2005) 31 WAR 1, this court (Wheeler and Roberts-Smith JJA and Miller AJA) comprehensively reviewed the sentences which had been imposed by courts in this State for sexual offences against children. Their Honours noted that sentences for multiple counts of sexual offending against children have significantly 'firmed up' since the survey undertaken by Anderson J in Woods v The Queen (1994) 14 WAR 341. They said:

Cases such as Podirsky, Jarvis, Petchell, and Shepherdson, can no longer be regarded as reliable guides. Offending of the type described in them is now regarded significantly more seriously. It should also be noted, in this context, that in a number of the more recent cases reviewed, older examples such as Jarvis and Podirsky were apparently seen as setting roughly an 'upper limit'. Bishop v The Queen [2003] WASCA 79 (16 years, pre-transitional provisions) and Morley v The Queen [2001] WASCA 49 (13 years, pre-transitional provisions) are examples of such cases [307].

Wheeler and Roberts-Smith JJA and Miller AJA concluded:

Finally, in relation to offences of this kind (that is, cases of frequent or prolonged sexual offending against a child or children), it is convenient to undertake the exercise of converting the sentences which we have discussed into those which would be imposed after the transitional provisions came into operation on 31 August 2003. The 'lower end' cases of up to 4 years formerly, would now be up to 2 years and 8 months; the most common sentence one would expect to see would be approximately 6 years and 8 months, and about two-thirds of sentences in such cases would fall within the range 6 years 8 months to 12 years 8 months (the former 10 to 19-year range). A term other than immediate imprisonment would be imposed only in the most unusual of cases (eg Marris v The Queen [2003] WASCA 171, where the six counts all occurred over the space of one evening, the offender and complainant were unrelated, the offender was a particularly immature young man, the complainant was 13, and there was no question of any force, threat, or 'grooming'). Those sentences, we stress, are the range one would expect to see after a plea of guilty [309].

35 Sexual offences involving young children are of the utmost seriousness, especially where the offences involve an abuse of trust. The dominant sentencing considerations are punishment of the offender, specific and general deterrence, and the protection of vulnerable children. In H v The State of Western Australia [2006] WASCA 53, McLure JA said, in the context of sexual offences involving young children:

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 circumstances 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) [74].

Her Honour's reference to 'the former provisions' was, of course, to cl 2(1) of Sch 1 of the Amendment and Repeal Act, which is part of the transitional provisions introduced by that Act. Clause 2(1) requires that a court which has decided to sentence an offender to a fixed term of imprisonment must impose a fixed term that is two-thirds of the fixed term that would have been imposed under the law as it stood prior to the Amendment and Repeal Act.

36 In C v The State of Western Australia [2006] WASCA 261, Steytler P (McLure JA agreeing) noted that there is support in the cases for the proposition that, ordinarily, digital penetration is less serious than penile penetration [13]. However, as his Honour also noted, it is beyond argument that any sexual penetration of a child is serious, and repeated sexual offending against a child will ordinarily attract a severe sentence [13]. Later in his reasons, Steytler P made these observations concerning the sentences that have been imposed in the case of digital penetration (including in cases where there has been an abuse of trust in an intra-familial context):

In Podirsky (1989) 43 A Crim R 404, Malcolm CJ said at 411, in the context of a case which involved penile penetration, that, where there is a series of offences of aggravated sexual assault involving a girl under 16 years, sentences within the range of 9 to 11 years are commonly imposed: see also Woods v The Queen (1994) 14 WAR 341. Allowing for the effect of the transitional provisions, this would equate to a range of between 6 and about 7 1/2 years' imprisonment. While offences involving digital penetration have generally attracted lower sentences (see, for example, Nelson v The Queen, unreported; CCA SCt of WA; Library No 950376; 1 June 1995; Ling v The Queen [2000] WASCA 129; Germain v The State of Western Australia [2004] WASCA 293; and H v The State of Western Australia [2006] WASCA 53), and while these vary significantly depending upon the nature of the offending, offences of that kind still warrant significant punishment. That is especially so in cases in which there is a serious breach of trust in an intra-familial context: Trescuri v The Queen [1999] WASCA 172 at [21]. Moreover, it has recently been said that the trend for sentencing in cases of intra-familial sexual assault or abuse is for sentences to be firmed up having regard to a greater understanding of the impact such offences have on young victims: see Playle v The Queen [2004] WASCA 86 at [38]; Bosworth v The Queen [2004] WASCA 43 at [20] and see also, more generally, VIM v Western Australia [2005] WASCA 233; (2005) 31 WAR 1 at [288] to [315] and PDS v The State of Western Australia [2006] WASCA 20 at [28] [14].

37 In C, Wheeler JA explained the rationale for penile penetration of the vagina ordinarily being regarded as more serious than digital penetration, fellatio and cunnilingus:

In the majority of cases, penile penetration is more serious than digital penetration, fellatio or cunnilingus. This is because, when regard is had to either the actual or the potential harm to be caused by the conduct, the risks associated with penile penetration can include pregnancy, a sexually transmitted disease, and, in the case of children, often pain, or even physical damage. Penile penetration will also, often, be perceived by the victim as a more serious affront to personal dignity and bodily integrity. In addition, many cases of penile penetration tend to be associated with a greater degree of force or violence than cases of digital penetration.

However, there can be very serious cases which do not involve penile penetration. Some cases of penetration involving objects are obvious examples. Some cases of digital penetration can be extremely forceful and very serious in their consequences. Some other forms of penetration may be effected because the offender considers that they are more likely to be degrading and humiliating to the victim (see, eg, Turaga v The State of Western Australia [2006] WASCA 199) [32] - [33].

Significantly, Wheeler JA added that she would have 'great difficulty' in accepting that there is any form of 'hierarchy' of sexual penetration under which some forms of penetration (for example, digital penetration) are, in all circumstances, to be regarded as less serious than others [35]. Her Honour stressed that the seriousness of any case of sexual offending will be determined by all the circumstances of the particular case [35]. I agree, with respect, with those observations.

38 It is plain from the authorities that, in cases of intra-familial sexual abuse, matters personal to the offender carry less weight, by way of mitigation, than might otherwise be the case. See VIM [320] - [321]; MPD v The State of Western Australia [2008] WASCA 57 [58] (Miller JA, Wheeler and Buss JJA agreeing). The fact that an offender is otherwise of good character has only little weight in that the offences are of a kind which, until revealed, generally do not impinge on other people or their perception of the offender. See R v Petchell (Unreported, WASCA, Library No 930346, 16 June 1993), 10, Franklyn J (Rowland and Walsh JJ agreeing).

39 Fast-track pleas of guilty in this State ordinarily attract a reduction in sentence of somewhere between 20% and 35%, depending on the circumstances. See H [9]; Moody v French [2008] WASCA 67 [37] (Steytler P, Wheeler, McLure and Buss JJA). As pointed out in Moody, in a particular case, the reduction might be less (where, for example, there is a late plea and an absence of any real remorse) or more [37]. However, the reduction must not be so excessive as to undermine the accusatorial character of the criminal justice system. See R v Shannon (1979) 21 SASR 442, 449 (King CJ); Moody [37]. Some discount should be allowed, even where the plea of guilty is unavoidable and unaccompanied by any real remorse or acceptance of responsibility, because of the offender's willingness to facilitate the course of justice. See Moody [38] and the cases there cited. Also see s 8(2) of the Sentencing Act.

40 In the present case, the appellant's offending was, without doubt, very serious. The pernicious features were:

(b) the offences were committed against the complainants in their own homes or family environments;

(c) the gross breach of the relationship of trust that existed between the appellant and the complainants by reason of the appellant's position as a step-parent and step-grandparent;

(d) the offending occurred over a period of some 17 years;

(e) the offending involved some threats and inducements being made and offered;

(f) the ongoing impact of the offences on the complainants, as indicated by the victim impact statements of JM and TL (the mother of SB and TC); and

(g) the support and devotion of the appellant's wife towards the appellant has resulted in at least one of the complainants being unable to maintain any relationship with her own mother as a result of the appellant's conduct.

41 The principal mitigating features, in the present case, are the appellant's early pleas of guilty, his apparently genuine remorse, the absence of any penile penetration of the vagina and only two instances of oral penetration.

42 It is true that the appellant did not enter fast-track pleas of guilty, but his early pleas on 23 September 2005 benefited the complainants, facilitated the course of justice and were indicative of remorse. Also, the pre-sentence report records that the appellant did not 'refute' the respondent's statement of material facts, even though he was reluctant or unable to describe the circumstances surrounding his offending behaviour or the possible impact his behaviour may have had on the complainants. Further, the report of the forensic psychologist, Ms Lynn, records her opinion that, overall, the appellant acknowledged responsibility for the offences.

43 The appellant's offending (in particular, the penile penetration of TM's mouth and the act of cunnilingus performed on her, and the digital penetration of SB's and TB's vaginas) were, without doubt, very serious. However, the absence of penile penetration of the complainants' vaginas removed the appellant's offending from the most serious category of sexual offending against children. See MPD [41].

44 Other mitigatory circumstances of minor significance are the absence of any prior criminal record and the appellant's expressed willingness to participate in a specialist sex offender treatment program and any other available treatment programs.

45 The learned sentencing judge made express findings to the effect that the appellant accepted and took full responsibility for what he had done. Her Honour also noted that the appellant's Static-99 score indicated there was a medium-low risk of his reoffending, although Ms Lynn considered his risk to be significantly higher because of the number of victims and the length of time over which he offended against them.

46 Counsel for the respondent relied on S v The Queen [2004] WASCA 113 and D v The Queen [2003] WASCA 33. It was submitted that the offending conduct of the appellant in the present case involved a higher degree of criminality than that of the offenders in S and D.

47 In S, the offender was convicted, on his plea of guilty, of ten counts of indecent dealing with a child between the age of 13 and 16 years, seven counts of sexually penetrating a child between the age of 13 and 16 years, one count of procuring a child between the age of 13 and 16 years to engage in sexual behaviour, and three counts of breaching a violence restraining order. The sentencing judge imposed a total effective sentence of 10 years' imprisonment, with eligibility for parole. The 10-year term included 6 months' imprisonment on each of the counts of breaching a violence restraining order, those 6-month terms to be served concurrently with each other but cumulative on the other sentences. The sentences were imposed before the commencement of the transitional provisions in the Amendment and Repeal Act. The total effective sentence of 10 years' imprisonment therefore equates to a post-transitional sentence of 6 years and 8 months. The counts of indecent dealing and sexual penetration included several instances of the offender digitally penetrating the anus of the sole complainant, one instance of the offender inserting the complainant's finger into his anus, one count of digital penetration of the vagina, one count of penetrating the complainant's anus with his tongue, and one count of forcing the complainant to perform fellatio on him. At all material times, the complainant was under the care, supervision or authority of the offender, who was living with the complainant's mother in a de facto relationship. He was a first offender and his pleas of guilty were in the nature of fast-track pleas. When the offending occurred, the complainant was aged between 13 and 15 years. The Court of Criminal Appeal (Malcolm CJ, Templeman and Miller JJ agreeing) granted the offender leave to appeal against sentence, but dismissed the appeal.

48 In D, the offender was convicted, on his pleas of guilty, of one count of having a sexual relationship with a child under the age of 16 years, four counts of indecently dealing with a child between the ages of 13 and 16 years, and two counts of sexually penetrating a child between the ages of 13 and 16 years. There were two complainants. At the material times, the child the subject of the count of having a sexual relationship with a child under the age of 16 years was aged 9 years, and the child the subject of the other counts was aged 14 years. The sentencing judge imposed a total effective sentence of 14 years' imprisonment, with eligibility for parole. The sentences were imposed before the commencement of the transitional provisions. As to the complainant aged 9 years, the relevant conduct included digital penetration of her vagina. As to the complainant aged 14 years, the relevant conduct included digital penetration of her vagina and performing cunnilingus on her. The offender had a previous record of serious sexual offending. In February 1992 (about 10 years before the commission of the offences in question), the offender had been imprisoned for 10 years for a series of sexual offences against five female victims. They comprised three stepdaughters and two natural daughters. The crimes had occurred between 1985 and 1990 and involved genital touching, fellatio, digital penetration, cunnilingus and penile penetration. Reports before the sentencing judge in relation to the offences in question were only partly favourable to the offender. They revealed that the offender had expressed little, if any, victim empathy or insight into how his behaviour may have affected his victims, and had expressed remorse only when reminded that he had damaged and lost a friendship with the victims' parents. Also, he was assessed as presenting a high risk of reoffending in a like manner. The sentencing judge concluded that any real remorse was evidenced by the plea of guilty rather than by independent remorse or contrition. The Court of Criminal Appeal (Miller J, Malcolm CJ and Murray J agreeing) held that the individual sentences imposed by the sentencing judge exceeded the applicable range. The offender was resentenced. In the result, the total effective sentence was 11 years immediate imprisonment, with eligibility for parole. This equates to a post-transitional sentence of 7 years 4 months.

49 It has been said, correctly in my opinion, that reference in 'micro-detail' to other cases of sexual offending which have some similarities to the case before the court is of very limited value. See MPD [77]. My review of the decisions in S and D reveals that there are obvious and material differences between the circumstances of the offending in those cases and the offending in the present case, and obvious and material differences between the personal antecedents of the offender in D and the present appellant. I do not find comparisons between S and D on the one hand and the present case on the other to be of any real assistance. Also, S and D were decided before VIM.

50 In my respectful opinion, although the appellant's offending, in the present case, was very serious and required a severe sentence, on the principles and authorities summarised in VIM, the total effective sentence of 10 years 8 months immediate imprisonment (16 years before the transitional provisions), with eligibility for parole, was so severe as to exceed the upper limit of the range open to the learned sentencing judge on a proper exercise of the sentencing discretion.

51 The total effective sentence was disproportionate to the overall criminality involved in the various offences viewed in their entirety and all the circumstances of the case, including those referable to the appellant personally. I consider that a total effective sentence of 8 years 4 months immediate imprisonment (12 years 6 months before the transitional provisions), with eligibility for parole, would properly reflect the overall criminality involved in the offences after taking into account all aggravating and mitigating features (including his early pleas of guilty). I would achieve that result by:

(a) ordering the sentences on counts 5 - 7 to be served concurrently with each other but cumulative on counts 1 - 4; and

(b) reducing the sentences on each of counts 14 and 15 from 2 years to 1 year.

Otherwise, I would not disturb the sentences imposed and ancillary orders made by the learned sentencing judge.

52 I would grant leave to appeal, allow the appeal, quash the sentences imposed by the learned sentencing judge, and substitute for them sentences as follows:

(e) counts 9 and 10: 1 year 4 months on each count;

53 The sentences on counts 1 - 4 are to be served concurrently with each other, the sentences on counts 5 - 7 are to be served concurrently with each other but cumulative on counts 1 - 4, the sentences on counts 8 - 13 are to be served concurrently with each other but cumulative on the other sentences, and the sentences on counts 14 and 15 are to be served concurrently with each other but cumulative on the other sentences. Each sentence commences on 23 September 2005.

54 The total effective sentence is therefore 8 years 4 months immediate imprisonment. The appellant is to be eligible for parole. He must serve 6 years 4 months imprisonment, calculated from 23 September 2005, before he becomes eligible to be considered for release on parole.

Legislation Amendment and Repeal Act 2003

Reform (Decriminalisation of Sodomy) Act 1989

Amendment (Sexual Offences) Act 1992

KC -v- THE STATE OF WESTERN AUSTRALIA [2008] WASCA 216 (23 October 2008)

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Judgment (99 paragraphs)

KC -v- THE STATE OF WESTERN AUSTRALIA [2008] WASCA 216 (23 October 2008)

Legislation Cited (3)

Cases Cited (10)