Australian Coal and Shale Employees' Federation v The Commonwealth [1953] HCA 25; (1953) 94 CLR 621

Dempsey v The Queen, unreported; CCA SCt of WA; Library No 960059; 9 February 1996

Hart v Rankin [1979] WAR 144

Heryadi v The Queen (1998) 19 WAR 383

Holland v The Queen [1999] WASCA 43

House v The King [1936] HCA 40; (1936) 55 CLR 499

Jarvis v The Queen (1993) 20 WAR 201

Johnston v The Queen, unreported; CCA SCt of WA; Library No 960153; 22 March 1996

Keding v The Queen, unreported; CCA SCt of WA; Library No 940522; 22 September 1994

Mill v The Queen (1988) 166 CLR 59

Powell v The Queen, unreported; CCA SCt of WA; Library No 8928; 21 June 1991

R v Boyd [1984] WAR 236

R v Burns (1994) 71 A Crim R 450

R v Dick (1994) 75 A Crim R 303

R v Dinsdale, unreported; CCA SCt of WA; Library No 990021; 2 February 1999

R v Everett (1994) 73 A Crim R 550

R v Ginder (1987) 23 A Crim R 1

R v GP (1997) 18 WAR 196

R v Juli (1990) 50 A Crim R 31

R v Liddington (1997) 18 WAR 394

R v O'C (1989) 41 A Crim R 360

R v Olbrich [1999] HCA 54; (1999) 73 ALJR 1550

R v Podirsky (1989) 43 A Crim R 404

R v Price (1988) 33 A Crim R 359

R v Rogers (1989) 44 A Crim R 301

R v Shaw (1989) 39 A Crim R 343

R v Sweetlove, unreported; CCA SCt of WA; Library No 960555; 23 September 1996

R v Van Roosmalen (1989) 43 A Crim R 358

R v Weng Keong Chan (1989) 38 A Crim R 337

Sell v The Queen (1995) 15 WAR 240

Sice v The Queen, unreported; CCA SCt of WA; Library No 940134; 11 March 1994

Steuart v The Queen, unreported; CCA SCt of WA; Library No 950486; 15 September 1995

Tampalini v O'Brien (1993) 114 FLR 281

Trescuri v R [1999] WASCA 172

Verschuren v The Queen (1996) 17 WAR 467

Wood v Samuels (1974) 8 SASR 465

1 KENNEDY J: On 6 August 1999, the applicant pleaded guilty in the District Court to three counts in an indictment alleging that, on a date unknown between 22 December 1997 and 28 December 1997, at Dongara, he committed three acts of sexual penetration of "D", who was aged six at the time. The applicant was 39 years of age.

2 The facts as presented to the court were that the applicant and his wife, who is the sister of the complainant's father, were celebrating Christmas at the complainant's home on the day the offences were committed. At about lunch time on that day, the applicant had been reading in the family room of the house. The complainant came out of her bedroom. The applicant called her over, then picked her up and placed her on his lap. He said to her, "Let me have a look", and he then lifted up her dress and put his hands down her underpants. He inserted two of his fingers into the child's vagina. After he removed his fingers, he licked them, and told the complainant to get off. She went out to play.

3 Later on the same day, when the complainant was upstairs in her bedroom with another child listening to a tape recording, the applicant went into her room and asked to sit with them. The other child left the room, leaving the applicant and the complainant on their own. The applicant sat on the bed and told the complainant to close her eyes and to lie down. He proceeded to pull up the complainant's nightie and to lick her on the clitoris. He then inserted two fingers into the complainant's vagina on two occasions. She told him to stop. He told her to "shush". After the applicant had placed his fingers in the child's vagina, he licked his fingers. He told her not to tell anyone. She asked why, and he replied "because it was bad". There is no suggestion of any threats having been made. Nor is there any suggestion in relation to any of the offences that, apart from effecting the three acts of penetration, any force was used.

4 The first count on the indictment related to the first sexual penetration. The second count related to the applicant's licking the complainant's clitoris. The sentencing Judge appears to have proceeded upon the basis that the third count related to two incidents of digital penetration, but the two acts of penetration constituted separate offences and the count should be taken to be referring to only the first of the incidents of digital penetration in the bedroom. No issue was raised by either counsel with respect to this matter either at the trial or in the course of the appeal.

5 The learned Judge sentenced the applicant to three years' imprisonment on each count. He directed that the sentences on the first and second counts should be served cumulatively, and that the sentence on the third count should be served concurrently with the sentence on the second count, resulting in an effective sentence of 6 years' imprisonment. He directed that the applicant should be eligible for parole. He backdated the sentence 25 days to allow for the period spent by the applicant in custody awaiting his being sentenced.

6 The applicant sought leave to appeal against his sentences on the following grounds, as amended at trial:

1. The total sentence of 6 years' imprisonment is manifestly excessive given:

(b) the applicant's attendance at Safecare counselling and his positive response to counselling leading to a prognosis that he is unlikely to re-offend;

(c) the contribution the applicant made to the community;

(d) the applicant's role in his family, particularly in relation to the development of his two daughters;

(e) the offences are at the lower end of the scale for offences of the type of which the applicant was convicted.

2. Given that all three offences occurred on the same date, the term of imprisonment for each of the counts in the indictment should have been ordered to be served concurrently.

3. The learned sentencing Judge erred in failing to give a discount in the sentence to recognise the applicant's pleas of guilty.

4. The learned sentencing Judge failed to give adequate consideration to the imposition of a suspended sentence.

7 The applicant's antecedents are extremely good. Counsel for the applicant, in addressing the sentencing Judge, fairly described the achievements of the applicant as being outstanding. It is tragic that, in the course of one day, he has caused so much hurt and injury to the young complainant and to her family.

8 The applicant comes from a very strong Aboriginal family in the south west of the State, and both his father and his grandfather have been well respected within the community. He achieved well at school and, in Year 10, he was awarded a scholarship to a private school in Perth, based on his scholastic achievement. He continued to perform well at school in Perth and he was accepted as a student into the University of Western Australia. However, he decided instead to take up work as a ceiling fixer, which he undertook for some five years. At the age of 22, he joined the police service, considering that he would be able thereby to benefit the Aboriginal community. He served in the police service for nine years and he then decided to move into an area in which he felt he could make a more positive contribution. In 1989 he therefore enrolled at the University of Western Australia, where he completed a Bachelor of Arts degree, majoring in industrial relations and English. He achieved this success while working full time, first in the Main Roads Department as an industrial relations officer, and then as a co-ordinator of the Aboriginal Employment Strategy at the University of Western Australia, a position which he held until June 1998. Since 30 June 1998, he has been employed by TAFE as a lecturer in Aboriginal Studies. He has sought to give encouragement to young Aborigines in a variety of ways, including teaching them to drive and helping them to obtain employment.

9 The applicant has been married for 18 years and he has two young daughters of that marriage. There is nothing in his background to explain his offending, save only that he claims that he was sexually abused between the ages of 6 and 12 by a non-Aboriginal youth. Regrettably, this is a factor which is quite frequently present in the backgrounds of those who commit sexual offences against children. It can, however, have little effect upon the length of sentence imposed, other than in a most exceptional case. It is not a factor upon which the applicant has placed any emphasis in this appeal.

10 In sentencing the applicant, the learned sentencing Judge indicated that there was little to distinguish between the three offences in terms of their seriousness, but he said that each would ordinarily attract a separate sentence of "something like the order of 6 years' imprisonment" if sentences were to be imposed on each as a single offence.

11 It is now trite to say that a tariff in relation to sexual offences remains elusive, and that there is room for individual variations in sentencing in terms of the kinds of sexual penetration and other sexual acts and the circumstances of aggravation, quite apart from personal and other factors in mitigation. And it is unnecessary to go to the many cases concerning sentences for the digital penetration of young children by adults. The Crown rightly conceded that for one act of digital penetration, a sentence of between 2 and 3 years is common. An examination of the sentences imposed for such offences during the past decade suggests that the normal range might be somewhat broader, from 18 months to 3-1/2 years. Furthermore, it is well established that only in rare and exceptional circumstances will an act of digital penetration by an adult of a child not result in an immediate custodial sentence. The circumstances of this case do not fit into that category. As the learned sentencing Judge rightly pointed out, in relation to sentencing for offences of this nature against children, there is the important aspect of general deterrence to be considered which cannot be achieved to the same extent with a suspended sentence. The impact of the applicant's imprisonment on his young children, and the risks which he may run in prison by reason of his having previously served as a police officer, cannot, in the circumstances of this case, require that the sentences be suspended. In my opinion, it cannot be said that the learned sentencing Judge erred in imposing an immediate sentence of imprisonment.

12 The offences involved a breach of trust on the part of the applicant. Furthermore, after the applicant had committed the first offence, he demonstrated no immediate remorse, but shortly afterwards committed the other two offences charged. In my opinion, however, the sentencing Judge's starting point of 6 years in this case was substantially too high, leading to a final effective sentence which is excessive, and it now falls to this Court to substitute the sentences which it thinks ought to have been passed.

13 So far as the suggested failure of the learned sentencing Judge to give a discount in the sentence to recognise the applicant's pleas of guilty is concerned, I have no reason to doubt that, although his Honour was required by s 8(4) of the Sentencing Act 1995 to state that fact in open court if he reduced the sentence he would otherwise have imposed, he did in fact take it into account. The pleas were the subject of quite extensive discussion during the submissions on sentencing, and I do not consider that his Honour would have overlooked this factor. It must be appreciated, however, that the applicant's final indication that he would be pleading guilty was made a significant time after he was first contacted by the police on 23 April 1998. On 18 May, in a record of interview conducted at the Police Child Abuse Unit, he admitted two acts of penetration of the complainant. In the meantime, the applicant's wife had advised the complainant's parents and the complainant that the applicant had admitted the offences. It appears that part of the delay in the applicant's giving a firm indication that he intended to plead guilty was due to a final determination not having been made by the Director of Public Prosecutions as to whether he would be charged with the third offence. In part, it was also due to the applicant's decision to undertake the Safecare programme for sexual offenders, no doubt with a view to using his participation in the programme as a mitigating factor. Both the applicant and his wife worked hard in the programme to ensure that they had an appropriate attitude to parenting and that the applicant's behaviour towards his own children was appropriate. As a consequence of the delay in the applicant's confirming that he would be pleading guilty to all the charges, however, the preparation of the prosecution case had inevitably to proceed and, in this process, the complainant had to be brought to Perth from her home in Dongara to have explained to her the procedures in connection with her evidence which would have to be given in the trial. For many months she was not in the position of knowing for certain that the trial would not proceed and that she would be free from having to give evidence and able to endeavour to put the matter behind her. The complainant's victim impact statement graphically describes her difficult behaviour since the commission of the offences. On the other hand, the Safecare report does indicate that the prospects for the applicant's rehabilitation are good and that his continued participation in the programme suggested that his prospects of re-offending are not high.

14 Having regard, in particular, to the applicant's antecedents and to the remorse which he has now demonstrated, as well as his initiative in participating in the Safecare programme, and having regard to the starting point of 6 years' imprisonment selected by the sentencing Judge, I am of the view that his Honour's discretion miscarried. I would therefore quash the sentences imposed by the learned sentencing Judge and I would substitute sentences of 2 years' imprisonment for each of the offences . I would direct that the sentences on the second and third counts should be served concurrently, but cumulatively upon the first sentence. The sentence on count 1 should be backdated, as the learned sentencing Judge directed, to 6 August 1999, and the applicant should be eligible for parole in respect of each of the sentences. I would grant leave to appeal and allow the appeal accordingly.

15 WALLWORK J: I agree with the reasons for judgment of Kennedy J and to the orders proposed by his Honour.

16 MURRAY J: I agree with Kennedy J that leave should be granted and the appeal allowed. I concur in the orders proposed by way of variation of the sentences and I have nothing to add to his Honour's reasons.