Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA

Criminal law - Appeal against sentence - Sexual offences committed against 11 different victims aged between 13 and 15 years over a two and a half year period - Whether first limb of totality principle infringed - Turns on own facts

Classification (Publications, Films & Computer Games) Enforcement Act 1996 (WA), s 60(4)

Criminal Code (WA), s 321(2), s 321(4), s 321(6), s 204B(2)(b)(i)

Sentencing Legislation Amendment and Repeal Act 2003 (WA)

Total effective sentence imposed is 9 years 2 months' imprisonment

Lim v The State of Western Australia [2010] WASCA 186

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

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

Ryan v The Queen [2001] HCA 21; (2001) 206 CLR 267

VIM v The State of Western Australia [2005] WASCA 233; (2005) 31 WAR 1

3 MAZZA J: This is an appeal against sentence. Leave to appeal was granted on 14 May 2010.

4 On 11 December 2009, the appellant entered fast-track pleas of guilty to 27 offences of a sexual nature. On 26 February 2010, his Honour O'Neal DCJ sentenced the appellant to a total term of 12 years and 2 months' imprisonment. He was made eligible for parole and the sentence was ordered to commence on 31 August 2009.

5 The single ground of appeal alleges that the total sentence infringed the first limb of the totality principle. It is alleged that the sentence imposed upon the appellant does not bear a proper relationship to 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: Roffey v The State of Western Australia [2007] WASCA 246 [24] (McLure JA).

6 The relevant general legal principles with respect to appeals against sentence are well known and are 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 law or fact. Even if error is demonstrated, the appellate court can intervene only if it is satisfied that a different sentence should have been imposed at the original hearing.

7 The 27 offences to which the appellant pleaded guilty were:

(a) 13 counts of sexual penetration of a child of or over the age of 13 and under the age of 16: s 321(2) of the Criminal Code (WA);

(b) 1 count of indecently dealing with a child of or over the age of 13 and under the age of 16: s 321(4) of the Criminal Code;

(c) 2 counts of indecently recording a child of or over the age of 13 and under the age of 16: s 321(6) of the Criminal Code;

(d) 7 counts of using electronic communication with intent to procure a person he believed to be under the age of 16 to engage in sexual activity: s 204B(2)(b)(i) of the Criminal Code (incorrectly described in the marginal note in the indictment as 's 204B92)(a)(i)'); and

(e) 4 counts of possessing child pornography: s 60(4) of the Classification (Publications, Films & Computer Games) Enforcement Act 1996 (WA).

8 The offences were committed over a period of approximately two and a half years with some interruptions. The offending commenced when the appellant was aged 20 years and ceased a few days short of his 23rd birthday. There were in all 11 different victims aged between 13 and 15 years. The individual sentences imposed upon the appellant and the orders for concurrency and cumulation are as follows:

321(2) sex pen Despite his apparent immaturity it is also relevant to stress that his behaviour in making contact with underage girls has been quite calculated and well planned. He has also been quite persistent and sometimes vigorous in his approach to the various victims.

41 Psychometric testing conducted by Mr Summerton revealed no evidence of clinically significant psychopathology. The general personality scale result revealed evidence of avoidant, dependent, narcissistic depressive and anti-social tendencies.

42 Mr Summerton administered the Static 99, which is an internationally recognised risk assessment measure. This suggested that the appellant has a three in 10 chance of sexual re-offending within a five year period. However, Mr Summerton noted that this assessment may understate his actual risk and does not account for the sustained nature of his offending that involved him approaching numerous victims, and the coercive element of some of his behaviour. As against this, Mr Summerton said that the appellant accepted responsibility for his offending and appeared highly motivated to participate in treatment designed to address his behaviour. In this regard, prior to being sentenced the appellant engaged in counselling with a private clinical psychologist, Dr Richard Merrett. Mr Summerton said:

[The appellant's] offending appears to be at least in part related to his perceived inability to access age appropriate partners and there is some suggestion that he is able to shift his interest from adolescent girls. He also impresses as having some capacity for insight though he will require significant therapeutic input and subsequent support if he is to effect enduring change in his life.

[The appellant] has been convicted of a significant number of sexual offences against various adolescent girls that have involved actual sexual contact and other forms of activity via the Internet. He has accepted responsibility for his behaviour and appears to have a reasonable degree of awareness of the potential effects of his behaviour. He appeared to be genuinely remorseful for his actions. He has been assessed as a medium high risk of reoffending though as identified this does not necessarily reflect the sustained nature of his offending over the described period. He has expressed a high level of motivation to address his offending behaviour and clearly he has significant needs in this regard. Issues related to his disability may impede his involvement in treatment and his broader capacity to achieve enduring change though he impresses as having some capacity for self reflection.

44 Dr Merrett provided two reports dated 21 July and 3 November 2009. All together Dr Merrett saw the appellant on 11 occasions prior to him entering his pleas of guilty. Dr Merrett saw the appellant for therapeutic purposes and did not undertake a forensic assessment of him.

45 Three pre-sentence reports were prepared in relation to the appellant dated 3 September 2009, 28 October 2009 and 27 January 2010. The first of these reports dealt only with the offences which occurred at the Joondalup Arena. That report described in some detail the appellant's antecedents. The report noted that the appellant has a minor and irrelevant (for present purposes) criminal history involving offences committed in 2007 of impersonating a public officer, possession of a controlled weapon and stealing. All of these offences were dealt with in the Magistrates Court by fines.

46 In the pre-sentence report dated 28 October 2009, which was written before Mr Summerton's report, the author said after interviewing the appellant on 30 September 2009:

An assessment of [the appellant's] responses revealed that he engaged in a degree of minimisation throughout the interview and that he specifically targeted his female victims because of their young ages and personal circumstances, believing them to be more easily manipulated. [The appellant] also appeared to have limited insight into the concept of informed consent in relation to underage females.

47 The appellant was again interviewed on 20 January 2010 for the preparation of the third pre-sentence report. In that report the author said:

[The appellant] stated he accepts full responsibility for all of the charges laid against him, describing his behaviour towards all of his victims as, 'disgusting and unacceptable'.

48 A part of this interview session focused on the likelihood of the appellant being required to undertake a sex offender programme. The appellant indicated his willingness to participate in such a programme which is available in a prison setting.

49 Two of the complainants provided victim impact statements. They eloquently speak of the emotional and other impacts which the appellant's offending had on them. For one complainant the appellant's conduct worsened her pre-existing depression. For the other complainant the embarrassment of what occurred led to her and her younger sister to move schools.

50 The learned sentencing judge took time to consider the sentences he imposed and provided thorough, balanced and comprehensive reasons. No express error is alleged by the appellant and none of the individual sentences imposed upon the appellant are challenged. The appellant's argument is that the overall effective result reveals an implied error on his Honour's part. Accordingly, I need only set out the main features of what his Honour said.

51 His Honour identified a number of aggravating features. He concluded that the appellant's relationship with all of the victims was an abusive one. He said the overall aggravating feature of the case is the duration, persistence and determination of the appellant's offending, which stopped only when he was caught. He observed that in many, but not all cases, the appellant offered his victims money for various sexual acts. Further, in some cases he plied the complainant with alcohol. In other cases, the appellant committed offences in the presence of one of the appellant's friends and on other occasions offences were committed in the presence of, or at least to the knowledge of, another complainant or complainants. His Honour found that with respect to each of the seven counts of using electronic communications, the appellant's specific intention was to procure a meeting with the girl he was communicating with so that he could sexually penetrate her.

52 His Honour concluded that the young age of his victims was a significant factor in the appellant's sexual gratification and that he was willing to pursue that gratification without regard for the harm that it caused his victims. He expressed the belief that the appellant was at the time of sentencing a sexual predator who posed a considerable risk of further offending.

53 His Honour then identified a number of mitigating factors. His Honour saw the appellant's fast-track pleas of guilty as 'the single greatest mitigating factor' in the appellant's favour. His Honour also recognised that the appellant was not only a young man but someone whose relative immaturity meant that his emotional development lagged behind his age in years. His Honour accepted that the appellant was to 'a degree' remorseful, but stopped short of accepting that his expressions of remorse reflected a genuine concern as to the consequences of his offending upon his victims. Rather, his Honour expressed the strong suspicion that his remorse was a result of his realisation of the effects that his offending will have on him.

54 His Honour found that the appellant's hearing problem had hindered his emotional development and left him with a degree of immaturity relative to his chronological age.

55 His Honour noted the absence of any physical coercion on the part of the appellant and that none of the offences constituted an abuse of a position of trust. He recognised that the age difference between the appellant and his victims was not as great as in some cases, particularly when the appellant's immaturity was taken into account. His Honour said that he was conscious of the fact that the appellant had never previously served a term of imprisonment and that it was, as he put it, a particularly difficult thing to send someone, especially someone so young, to prison for the first time. His Honour acknowledged that the appellant was willing to receive treatment to deal with his offending behaviour, but his Honour was unable to predict how successful that treatment might be.

56 His Honour correctly considered that the dominant sentencing considerations in the case had to be punishment, and general and personal deterrence. He expressly referred to both limbs of the totality principle.

57 Mr Watters submitted, on behalf of the appellant, that the total effective sentence did not bear a proper relationship to the overall criminality involved in all of the offences. In support of this proposition Mr Watters drew this court's attention to the following factors:

1. the fast-track pleas of guilty;
2. the appellant's claimed remorse;
3. the appellant's relative immaturity;
4. the appellant's hearing impairment;
5. the effect of the social stigma which attaches to offences of paedophilia: Ryan v The Queen [2001] HCA 21; (2001) 206 CLR 267 [123] (Kirby J);
6. the fact that the appellant had not been previously incarcerated;
7. the age difference between the appellant and the complainants was not as gross as is sometimes found in other cases of this kind;
8. there was no physical coercion or abuse of a position of trust; and
9. the appellant had provided the police with the name of his alleged co-offender with respect to counts 3, 4, 6 and 7.

58 Mr Yovich submitted, on behalf of the respondent, that his Honour correctly applied the totality principle and that the total effective sentence of 12 years and 2 months' imprisonment properly reflected the appellant's overall criminality. Mr Yovich submitted that the appellant's offending was planned, persistent and occurred over a long period of time. It involved 11 young female complainants and was said to be in the upper end of the range of offences of this kind occurring in a non-familial setting. The respondent submitted that the offences against s 204B(2)(a)(i) of the Criminal Code were serious offences of their type because the appellant used the intent to groom his young victims for actual sexual activity with him. Notwithstanding the fast-track pleas of guilty, the appellant's age, immaturity and other matters personal to him, the sheer scale and magnitude of what was done is properly reflected in the overall sentence and should not be interfered with. Mr Yovich submitted that in this case the social stigma which attaches to paedophilia did not have any mitigatory weight. Mr Yovich acknowledged that the total effective sentence was severe but not outside the bounds of a reasonable exercise of judicial discretion.

59 Neither the appellant nor respondent was able to identify a directly comparative case decided in this state. This is hardly surprising in light of the unusual circumstances of the case. There is, of course, no tariff for sexual offences against children. Each case depends upon its own facts and the circumstances of the offender.

60 Both counsel referred to a number of cases but oral argument concentrated on Rowan v The State of Western Australia [2009] WASCA 185 and Lim v The State of Western Australia [2010] WASCA 186.

61 In Rowan, the appellant, who was 76 years of age at the time of sentencing, was sentenced at first instance to a total effective term of 15 years' imprisonment for one count of sexual penetration of a child between the ages of 13 and 16 years, six counts of sexual penetration of a child under the age of 13 years, three counts of indecent dealing with a child under the age of 13 years, one count of procuring a child under the age of 13 years to do an indecent act, one count of encouraging a child under the age of 13 years to engage in sexual behaviour, and one count of indecent dealing with a child between the ages of 13 and 16 years. The offences were committed against a total of four victims aged 14 - 15 years, 11 - 12 years, 11 years and 8 - 9 years. The offending occurred over a period of 12 months and all the sexual penetration offences involved cunnilingus. The appellant entered pleas of guilty on the fast-track system.

62 On appeal, it was contended that the total effective term offended the first limb of the totality principle. The court upheld this submission and the total effective term was reduced to 8 years' imprisonment. The court emphasised the advanced age of the offender and his understanding that cunnilingus was different in nature and seriousness from penile penetration. It was noted that the appellant's offending did not involve actual or threatened violence, aggression, intimidation or any grooming, and that the appellant was not in a position or in a relationship of trust with the complainants. However, the appellant was able to secure the complainants' participation in sexual activity by offering them money.

63 In that case, the court referred to the well known case of VIM v The State of Western Australia [2005] WASCA 233; (2005) 31 WAR 1, which was an appeal against conviction for 11 counts of rape, 13 counts of indecent assault and seven counts of sexual penetration without consent, and a state appeal against sentence. The two victims in that case were the offender's step-daughters. The court upheld the state appeal against sentence and re-sentenced the offender to a total effective sentence of 10 years' imprisonment, which reflected a lesser sentence than was otherwise warranted, because of the double jeopardy principle that then applied. In this case, the court undertook an examination of sentencing patterns for multiple offences of a sexual nature against children, analysing 25 cases decided between 1999 and 2005 in which there had been a plea of guilty. While VIM was a case of intra-familial offending, the court considered cases of non-familial offending. Taking into account the Sentencing Legislation Amendment and Repeal Act 2003 (WA) and speaking generally, the court observed that 'lower end' cases were met with total sentences of approximately 2 years 8 months' imprisonment. The most common sentences were sentences of approximately 6 years 8 months' imprisonment, and about two-thirds of sentences fell within the range of 6 years 8 months to 12 years 8 months imprisonment.

64 In Lim, the appellant was convicted of 15 counts of sexual penetration without consent, 29 counts of unlawful and indecent assault and one count of unlawful wounding. The appellant pleaded guilty to 18 of the counts of unlawful and indecent assault, but went to trial on the rest of the charges. He was found guilty of all of the charges that were tried. All together, there were 22 separate victims, all of whom were young men aged between 17 - 25 years. The offending occurred over a period of about four years and four months. The appellant's offending was calculated and premeditated. Essentially he preyed on intoxicated men, by offering them a lift home. He then took his victims to his own home and, once there, sexually abused them. The counts of sexual penetration mainly involved the appellant performing fellatio on a victim, while the indecent assaults vary in their seriousness. The appellant video recorded some of his offending. The offending was both premeditated and predatory. The appellant was 43 years when sentenced and had no prior criminal record.

65 The trial judge sentenced the appellant to a total effective sentence of 20 years and 2 months' imprisonment with eligibility for parole. This sentence was upheld by a majority (Buss JA & Mazza J). In his reasons, Buss JA pointed out that although each individual count examined in isolation was not within the worst category, the offending considered as a whole was within the worst category for totality purposes.

66 In my opinion, the utility of Rowan and Lim as comparators to this case is limited. In Lim, the offender was an older, mature man who offended against many more victims and over a longer period of time than in the present case. He pleaded not guilty to many charges and showed no real remorse. As Buss JA said '[i]f the appellant had pleaded guilty, on the fast-track system, to all counts in the indictment and had shown real contrition, he would have received a substantial discount on his total effective sentence' [50]. Neither counsel submitted that the present case was as serious as Lim.

67 The prominent distinguishing feature between Rowan and the present case is Rowan's advanced age and the very young age of his youngest three victims.

68 The analysis undertaken by the court in VIM is of some value in examining whether the sentence imposed on the appellant infringes the totality principle. I readily acknowledge that the court's conclusions in that case as to the terms commonly imposed are very general and I emphasise that each case must be decided on its own facts.

69 The sentencing exercise which his Honour undertook was particularly difficult. The case was unusual having regard to the large number of victims, the appellant's modus operandi, his young age and other personal factors. There was no directly comparable case to assist his Honour in this task.

70 Without doubt, the total criminality of the appellant's offending was high. I do not need to repeat what has already been said about the circumstances of the offending to illustrate this point. However, as serious as his conduct was, he did not abuse a relationship of trust or use physical force on his victims, nor is the age difference between the appellant and his victims as gross as in many other cases. Further, the appellant was aged between 20 and 22 years when he committed the offences and he was only 23 years when he was sentenced. His hearing disability had resulted in a quite profound effect on his development with particular reference to his ability to engage socially. He was immature for his age. He had previously had only a minimal and irrelevant, for the purposes of this case, involvement in the criminal justice system. He had pleaded guilty on the fast-track system and was, at least to some extent, remorseful. An appropriate sex offender treatment programme is available for him in prison which he is willing to undertake. The appellant appears amenable and motivated towards treatment.

71 I do not accept the appellant's submission that any mitigating weight should be attached to the alleged public opprobrium which the appellant might suffer as a result of his convictions. The High Court in Ryan v The Queen made no authoritative statement on the point. While Kirby and Callinan JJ considered that public opprobrium was mitigatory, McHugh and Hayne JJ were not so convinced. Gummow J was silent on the point.

72 In any event, the circumstances of the present case are quite different from Ryan v The Queen. In that case, the appellant, a Catholic priest who held some prominence in his community, had pleaded guilty to a number of sexual offences against young boys. The case had attracted negative publicity about him. None of these considerations apply to this case. Public opprobrium is not a matter which can be assumed without some factual basis for it. There was, as far as I can see, no such factual basis demonstrated in this case.

73 Having regard to the very serious nature of the appellant's offending and the dominant sentencing considerations of punishment, retribution and deterrence, both general and personal, a long total sentence of immediate imprisonment was inevitable. However, any term of imprisonment must be no longer than what is required to fairly and justly achieve these sentencing objectives. Further, it must be borne in mind that a rationale behind the totality principle is that after the initial sentences have been served there is assumed rehabilitation and a reduced demand for retribution: Roffey v The State of Western Australia [26].

74 In light of these matters and having considered the overall criminality involved in the commission of these offences, I have concluded that the total effective sentence of 12 years and 2 months offends the first limb of the totality principle. In my opinion, error on the part of the sentencing judge has been established and the total effective sentence should be reduced. That should be done by ordering the sentences of imprisonment on each of counts 19 and 25 to be served concurrently and not cumulatively as his Honour ordered.

1. The appeal against sentence is allowed.
2. The sentences imposed by his Honour Judge O'Neal on 26 February 2010 be varied so that the sentences on each of counts 19 and 25 will be served concurrently. The total effective sentence imposed is 9 years 2 months' imprisonment.
3. All other sentences and orders imposed by his Honour on 26 February 2010 remain.