Court of Appeal (WA)|2001-03-21|Before: Malcolm CJ

King v The Queen [2001] WASCA 103 (21 March 2001)

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

CITATION : KING -v- THE QUEEN [2001] WASCA 103

Criminal law and procedure - Sentencing - Sexual offences - Eight counts of indecent dealing with a lineal relative - One count of digital sexual penetration - One count of penile sexual penetration - One count of threatening to kill - Conviction after trial - No remorse - Neither individual sentences or total sentence of 10 years with eligibility for parole manifestly excessive

1 MALCOLM CJ: This is an application for leave to appeal against sentence. On 24 March 2000 the applicant was convicted in the District Court after trial of eight counts of indecently dealing with a lineal relative, being a child under the age of 16 years, two counts of sexual penetrating a lineal relative, being a child under the age of 16 years, one which involved digital penetration and one which involved penile penetration of the vagina, and one count of threatening to kill.

2 On 7 April 2000 the applicant was sentenced as follows: with respect to the offence the subject of count 3 on the indictment, indecent dealing with a lineal relative, the sentence imposed was 1 year. In respect of the offence the subject of count 4 on the indictment, indecent dealing with a lineal relative, the sentence imposed was 18 months. Those two offences comprised a single incident.

3 In relation to count 5, which was indecent dealing with a lineal relative, the sentence imposed was 18 months. In relation to count 6, indecent dealing with a lineal relative, the sentence imposed was one of 2 years. Those two offences formed a single incident.

4 In respect of the offence of indecent dealing with a lineal relative, the subject of count 7, the sentence imposed was 18 months. In respect of the digital sexual penetration of a lineal relative the subject of count 8, the sentence imposed was one of 3 years. In respect of count 9, indecent dealing with a lineal relative, the sentence imposed was 18 months. In respect of count 10, the indecent dealing with a lineal relative, the sentence imposed was 2 and a half years. In respect of count 11, indecent dealing with a lineal relative, the sentence imposed was 18 months. Those five counts comprised the third incident.

5 The final incident concerned a threat to kill, the subject of count 12, in respect of which the sentence imposed was one of 3 years and, finally, in respect of count 13, which was sexual penetration of a lineal relative by virtue of penile penetration of the vagina, the sentence imposed was 7 years.

6 The sentences on counts 8 and 13 were made cumulative. The remaining sentences were made concurrent with those sentences and each other. An order was made that the applicant was eligible for parole. It follows that the total sentence which was imposed for this series of offences, all involving the same girl, was imprisonment for 10 years.

7 The applicant seeks leave to appeal against the sentences imposed on the ground that the sentence of 10 years' imprisonment, with eligibility for parole, is manifestly excessive in all the circumstances having regard to the nature of the offences, the antecedents of the applicant and the totality principle, so much so that the discretion of the learned sentencing Judge miscarried.

8 The circumstances as they were found for the purposes of sentencing were that the complainant was the applicant's natural daughter. She was born on 29 December 1985 and was aged 14 at the time of the trial. When she was 3 and a half she and her brothers and sisters lived with the applicant and her mother in Medina. In her evidence the complainant alleged that the applicant had sexually interfered with her on several occasions at Medina when she was very young.

9 The first two counts in the indictment related to incidents that allegedly occurred at that time. The applicant was acquitted of those counts and the learned Judge commented, as counsel for the applicant had pointed out, that the jury was obviously not satisfied beyond reasonable doubt that sexual interference of the nature alleged occurred at that time. This explained the acquittal.

10 The applicant had separated from the complainant's mother when the child was aged about 4. In 1994 custody of the child was awarded to the mother, but the applicant continued to have access to her and she went to stay with the applicant periodically where he was then living in Manjimup.

11 Counts 3 and 4 on the indictment related to an incident when the child's mother left the complainant in the applicant's care one evening in Manjimup. On that occasion he kissed the child and inserted his tongue in her mouth and later went to her room and stroked her upper legs and vaginal area.

12 Counts 5 and 6 on the indictment related to a later episode in 1994 when the child was staying with the applicant in Manjimup during an access visit. While the child was having a shower, the applicant entered the shower cubicle and began masturbating in front of the child. After ejaculating, he rubbed semen over the child's chest and stomach.

13 Counts 7 to 11 in the indictment related to a single episode that occurred shortly after Christmas in 1994. On that occasion the complainant was staying with the applicant in Manjimup when he told her to have a shower and gave her a nightdress to put on. While the complainant, who was then aged 9, was having a shower, the applicant entered the cubicle and felt the child's breasts. This conduct formed the subject of count 7 in the indictment.

14 The applicant then inserted two fingers in her vagina and later, after he had removed his fingers, rubbed his hands over the complainant's face. These two incidents formed the subject of counts 8 and 9 on the indictment. The applicant then touched the child's breasts and began masturbating. He then took her hand, placed it on his penis and made the complainant masturbate him. This conduct formed the subject of count 10 in the indictment. The applicant ejaculated onto his hand and then rubbed semen on the complainant's chest and stomach and that action constituted the subject of count 11 in the indictment.

15 The final two counts in the indictment involved offences which occurred on 30 December 1995, the day after the complainant turned 10. On that occasion the complainant was again on one of her access visits at Manjimup when the applicant went into her bedroom at night armed with a knife. The applicant put the blade of the knife to the child's throat and threatened to kill her if she screamed or made a noise. The knife was produced as an exhibit at the trial and the threat to kill formed the subject of count 12 in the indictment.

16 The applicant then ordered the complainant to take her clothes off and lay on top of her. He spread her legs, held her hands behind her head and penetrated her vagina with his penis. He then had sexual intercourse with the child. The learned trial Judge was satisfied that the applicant ejaculated because the following morning the child described what could only have been semen in her underpants. This offence was the subject of count 12 in the indictment.

17 That was the last occasion upon which the complainant went to stay with the applicant in Manjimup. She had earlier told the de facto partner of the applicant what he had been doing to her, but she had either been ignored or disbelieved. In 1999 she told her mother what had happened. Investigations commenced and the applicant was charged with the offences of which he was ultimately convicted.

18 At the trial the applicant denied having committed any of the offences and claimed that the complainant had either mistaken what had happened or fabricated the allegations.

19 These assertions were clearly disbelieved by the jury as is indicated by the verdicts of guilty in relation to the counts upon which the applicant was convicted. This Court must approach the matter on the basis, as his Honour did, that the jury obviously disbelieved the applicant in the evidence which he gave at the trial and accepted the complainant's testimony beyond reasonable doubt in respect of those counts where convictions were returned.

20 The applicant was born on 24 March 1951 and at the time he was sentenced was aged 49. He had a record which was confined to traffic-related offences, apart from a conviction in 1993 for assault occasioning bodily harm for which he was fined $750. He had no prior convictions for offences of a sexual nature.

21 It was submitted in a plea in mitigation that the applicant was married and that he had a number of young children who were dependent upon him. At the time that he was being sentenced, his wife was currently pregnant. It was also submitted on his behalf that the family of the applicant was still supportive of him and many of his family were present in court at the time of sentencing.

22 It was accepted by counsel for the applicant at the time of sentencing, as the applicant himself had recognised, that the nature of his defence was such as to preclude any finding of remorse or contrition on the part of the applicant. The learned Judge went on to say, and I quote:

"Nothing of a mitigatory nature can be found in the circumstances surrounding the offences themselves. The only mitigating circumstances are your age and your relatively favourable antecedents. I must take into account the fact that, apart from these very serious sexual offences, you have lived to a large extent a blameless life and apparently made a useful contribution to the community in which you lived.

At the age of nearly 50 you now stand to be sentenced for a series of extremely serious sexual offences involving your own daughter. I have had regard to the medical report which Mr Devlin arranged to be presented to the court. As Mr Devlin has said, this report in summary notes that you have had ongoing problems of hypertension, anxiety and depression. You are on medication for that condition.

It is quite possible that this condition was brought about in no small measure by the events leading up to your arrest and trial. Turning to the question of sentence the Sentencing Act now requires me to impose a sentence that is commensurate with the series of offences you have committed. In assessing the gravity of those offences I'm required to take into account the statutory penalty for the offences and any aggravating and mitigating circumstances that might exist. A sentence of imprisonment, of course, cannot be imposed unless the offences are so serious that only imprisonment can be justified."

23 The learned Judge then noted that the statutory maximum penalties for the offences of which the applicant had been convicted were that the offence of indecent dealing with a child under the age of 16 years carried a maximum of imprisonment for 10 years, the offence of threatening to kill another person carried a maximum of imprisonment for 7 years and the offence of sexual penetration of a child under the age of 16 years carried a maximum of imprisonment for 20 years.

24 These were very serious offences. The learned Judge, in imposing the sentences which he did, said that:

"While your age and relatively favourable antecedents must be taken into consideration, and there are many other things that can be said in your favour, I'm unable to avoid the finding that your level of culpability lies at the upper end of the scale."

25 It has been submitted by the applicant in the written submissions that have been prepared for him by the Unrepresented Criminal Appellant Scheme that:

"The learned Judge failed to take into account or give sufficient regard to my antecedents."

26 In my opinion, having regard to the sentences imposed, the learned Judge quite clearly, from what I have quoted from his sentencing remarks, took into account the antecedents of the offender. It is submitted by the applicant that there were circumstances which pointed positively towards the appropriateness of parole and indicated that the offender would be less likely to reoffend in the future.

(1) at the time of sentencing the applicant was about to become a father for the fourth time to his second wife, a woman of good standing;

(2) he was convicted of only one count of sexual penetration;

(3) he suffered from anxiety and hypertension as ongoing medical problems; and

(4) he was 49 years old, had no prior convictions for sexual offences and his record was confined to traffic convictions bar one count of assault and he had made useful contributions to the community in which he lived.

28 Those matters in my view were clearly all taken into account by the learned trial Judge in imposing the sentences which he did.

29 In recounting the circumstances of the offences, the learned Judge also had before him a victim impact statement. From that victim impact statement his Honour concluded, and in my opinion rightly concluded, that the sexual acts were so gross and the threat to kill the complainant so real that she was severely traumatised by what the applicant did to her. His Honour went on to say:

"In the absence of expert evidence I am not permitted to draw the conclusion that the psychological damage you did will be of a permanent nature. It is clear from the victim impact statement, however, that this child has suffered grievously as a consequence of your treatment of her. I do not want to put on record the personal views of the child as expressed in this statement.

I have had an opportunity of reading it, as have both the Crown and counsel for the accused. What the child has said in this report is, in my view, in no way exaggerated and I propose to take her feelings into account in deciding what the appropriate sentence ought to be."

30 This Court has also had the opportunity to peruse the victim impact statement. Suffice it to say that these offences have had a very devastating effect upon the victim.

31 Before proceeding to fix the terms of imprisonment which were imposed, the learned Judge noted that:

"The Court of Criminal Appeal has emphasised that repeated sexual offences over a substantial period of time carry an offender's level of culpability to a high level on the scale and must be distinguished from offences of an isolated or sporadic nature. In this case you sexually tormented the complainant for a period of approximately 2 years between the ages of 8 and 10.

Set against those circumstances of aggravation are your relatively favourable antecedents and, of course, your age. As in all cases of this nature, however, there was a strong element of exploitation of a young child for sexual gratification. The Court of Criminal Appeal emphasised in R v GP that the imposition of a non-custodial sentence in cases involving the sexual abuse of children would be appropriate only in rare cases and in exceptional circumstances, even where only one act of penetration was involved.

The nature of your offending with this child over such a long period of time and the actual nature of the sexual interference itself makes a sentence of imprisonment inevitable. Notwithstanding your age and relatively favourable antecedents, and I already have said that your level of culpability lies at the upper end of the scale and the sentences I impose must reflect community abhorrence by punishing you and acting as a deterrent to others who might be inclined to take sexual advantage of children, particularly their own children."

32 His Honour then proceeded to impose the sentences to which I have referred. He then said:

"While the individual offences of which you have been convicted must be punished proportionately to their gravity, I must also take steps, as Mr Devlin has emphasised, to ensure that the aggregate of these consecutive sentences is not inappropriately long, having regard to your criminal conduct viewed as a whole.

In order to comply with the totality principle, I direct that the sentences on counts 8 and 13 be served cumulatively upon one another. The remaining sentences will be served concurrently with each other and concurrently with the terms of imprisonment imposed in respect of counts 8 and 13."

33 As mentioned, an order was made that the applicant be eligible for parole. In my view, it has not been demonstrated that there was any error in the exercise of discretion either in relation to any of the individual sentences which were imposed for the offences in this case or in relation to the totality of the sentences which were imposed, so that the principles for the exercise of this Court's discretion to interfere with the sentences as

set out in Lowndes v R [1999] HCA 29; (1999) 73 ALJR 1007 to 1110 have not been activated.

34 In my view, each of the sentences imposed and the total of the sentences imposed in this case were proportionate to the degree of criminality involved. The offences in this case were particularly serious. The complainant was the natural daughter of the applicant. The offences involved a gross breach of trust. The applicant was only 8 years old when the offences started and 10 years at the time of the last incident. There was an age disparity of over 30 years between the complainant and the applicant.

35 The offences continued on an opportunistic basis over a period of 2 years. During that period the nature of the sexual acts involved became progressively worse and involved elements of perversion and coercion which were committed for the applicant's own self-gratification. On the last occasion the applicant put the blade of a knife to the child's throat and threatened to kill her if she screamed or made a noise prior to the act of sexual penetration. There was no remorse demonstrated.

36 In my opinion the learned sentencing Judge imposed what I consider to be a fully merited and fair sentence of a total of 10 years' imprisonment which was within the sound exercise of discretion, having regard to the nature of the offences, the circumstances in which they were committed and all of the matters which were personal to the applicant, which were referred to at the time of sentencing. I can detect no error in the exercise of the sentencing discretion. For those reasons I would refuse the applicant leave to appeal against sentence.

37 MURRAY J: I too would refuse leave to appeal. I have nothing to add to the reasons pronounced by his Honour the Chief Justice.

38 STEYTLER J: I am of a similar opinion and have nothing to add.

King v The Queen [2001] WASCA 103

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King v The Queen [2001] WASCA 103 (21 March 2001)

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