Criminal law - State appeal against sentence - Two counts of indecent dealing with a child under the age of 13 - Sentence of 18 months' imprisonment suspended for 14 months - Whether participation in video-recorded interview mitigatory - Whether sentence manifestly inadequate - Turns on its own facts

Criminal Appeals Act 2004 (WA), s 41(4)(b)

Sentencing Act 1995 (WA), s 8(1), s 39(3)

Appellant : Ms A L Forrester (20 May 2014) & Mr J McGrath SC (12 August 2014)

Respondent : In person (20 May 2014) & Ms K J Farley SC (12 August 2014)

LJP v The State of Western Australia [2010] WASCA 85

Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665

Santa Maria v The Queen (Unreported, WASC, Library No 960582, 1 October 1996)

The Queen v Lonesborough (Unreported, WASC, Library No 950421, 15 August 1995)

2 MAZZA JA: On 20 February 2014, the respondent was convicted after trial in the District Court of two counts of indecently dealing with a child under the age of 13, contrary to s 320(4) of the Criminal Code (WA). The maximum penalty for this offence is 10 years' imprisonment. He was sentenced to a total effective sentence of 18 months' imprisonment, suspended for 14 months. The State appeals against that sentence upon two grounds. Ground 1 alleges that the individual sentences are manifestly inadequate in that the sentences of imprisonment should not have been suspended. Ground 2 alleges that his Honour erred in giving mitigatory weight to the respondent's participation in a video record of interview with the police on 19 October 2012.

3 Leave to appeal has been granted in respect of each ground.

4 The offences occurred on 9 September 2012. The respondent was, at that time, 59 years of age. The victim was 10 years of age. Not only was she vulnerable by reason of her age, but she also had developmental issues and attended a special needs school. Those issues were plainly evident (ts 204, 297).

5 On the evening of 8 September 2010, the victim and her mother went to a friend's house in Pinjarra, with the intention of staying overnight. Later that evening, the respondent and his adult son attended the same address. In addition to the adults that were present were the victim and four other young children.

6 The adults, including the respondent, stayed up all night drinking. The respondent became very intoxicated.

7 At around lunchtime on 9 September 2012, the victim, her mother, the respondent and at least one other were sitting at a table outside the house near the back door. At one point, the victim was sitting next to the respondent. The respondent began rubbing the victim's feet with his feet and intimated that she should go inside. She went inside and, while there, commenced to do her hair using a mirror that was hanging in the hallway. The respondent went into the hallway, pushed the victim into a bedroom and closed the door. While in there, he kissed the victim on various parts of her head and then kissed her on the lips with an open mouth in a plainly sexual way. The victim made it plain to the respondent that she was

uncomfortable and scared and did not want to be touched by him (count 1).

8 Sometime later that day, the victim was playing with two boys. The respondent entered the room and touched the victim on the neck. She left to escape his advances. The respondent was not deterred. Later, the respondent pulled the victim by her wrists into a bedroom and, although the victim made it plain that she wanted nothing to do with him, rubbed the victim's vaginal area on the outside of her bather shorts (count 2).

9 At one point in the course of his offending he threatened to kill the complainant. The victim was so frightened by the commission of count 2 that she ran to her mother who was still sitting outside at the table. Because of her distress and her developmental difficulties, she used hand signals in part to explain what had happened. The respondent then said words to the effect that 'she came onto me'. In response to this, one of the other males present assaulted the respondent, as a consequence of which he stumbled, then fell and broke two of his toes.

10 At trial, the respondent did not testify or call evidence in his defence. He relied on what he had said in a video-recorded interview with the police on 19 October 2012, which was adduced as part of the prosecution case. In the interview, the respondent admitted he was, at all relevant times, present at the house. He told the police that he was very intoxicated ('I was plastered ...') and that he could not remember 'doing anything like that' (interview ts 24). Later, he said that he did not think he had done anything inappropriate (interview ts 39) and that he did not think he 'would've done it' (interview ts 42). He recalled being assaulted and ejected from the house. In the complainant's pre-recorded evidence, the respondent's trial counsel cross-examined the complainant on the basis that the alleged offences had not occurred (ts 128, 136). That was the case he ultimately put to the jury.

11 By the time he was sentenced, the respondent was 61 years of age. He had a record of constant employment with a tyre business for about 23 years. Shortly after the commission of the offences, his former partner of 25 years passed away.

12 The respondent has a criminal history comprising mainly multiple convictions for drink driving between 1972 and 1986. Of more relevance are two convictions for indecent assault arising out of an incident on 13 February 2009. On that occasion, the respondent indecently touched a 26-year-old woman who was asleep in her bed. In common with the present offences, he committed these offences whilst intoxicated. On 28 September 2010, the respondent was sentenced to a total effective term of 14 months' imprisonment suspended for 12 months.

13 It is clear that the respondent has had a long-term problem with alcohol abuse. It is also clear that his excessive alcohol consumption is linked to his past and present sexual offending. Apart from an unsubstantiated claim made through his counsel in the sentencing proceedings that he had 'slowed down his alcohol consumption a lot' (ts 292), there was nothing to show that the respondent had engaged in any form of rehabilitation designed to curb his drinking.

14 The learned sentencing judge accepted the evidence of the complainant in relation to each offence (ts 294).

15 He described the aggravating circumstances of the case as including:

(a) the persistence with which the respondent committed the offences;

(b) the respondent's use of physical coercion and threats of harm towards the complainant; and

(c) the vulnerability of the complainant by reason of her age and developmental delay.

16 His Honour observed that the offences were of a kind that may have an ongoing psychological impact upon the victim and that this type of offending is so serious that 'in almost every [instance], the only sentence is an immediate term of imprisonment' (ts 298).

17 His Honour found that the respondent was not genuinely remorseful for his actions and was unwilling to take responsibility for them. He said the respondent did not 'seem to appreciate or have any understanding or regard for what [he had done]' (ts 298 - 299). His Honour noted that the respondent was not entitled to the mitigation that would have been gained by pleas of guilty.

18 The learned sentencing judge referred to the need for the sentences to punish the respondent, denounce what he had done and protect the community. He also referred to the need to specifically deter the respondent from further offending.

19 With respect to matters in mitigation, his Honour took into account:

(a) that the respondent cooperated with the police by participating in a video-recorded interview;

20 His Honour noted defence counsel's submission that the respondent had moderated his drinking.

21 His Honour concluded that the seriousness of the offences was such that the only appropriate sentence was a term of imprisonment. He imposed a sentence of 14 months' imprisonment in relation to count 1, 18 months' imprisonment in relation to count 2 and ordered that the sentences be served concurrently. He then considered whether the terms could be suspended. His Honour said that, in doing so, he adopted a two-step approach which required him to revisit the same considerations that are relevant to the imposition of a term of imprisonment. He concluded that the sentences of imprisonment should be suspended, 'notwithstanding the nature, the gravity and the seriousness of the offending'.

22 An appellate court may not substitute its own opinion for that of the sentencing judge merely because it would have exercised its discretion in a different way: Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665 [15]. There must be an error that justifies and authorises appellate intervention. There are special principles applicable to prosecution appeals. They are well established and need not be repeated, bearing in mind that the principle of double jeopardy which applied to State appeals has been abolished: s 41(4)(b) of the Criminal Appeals Act 2004 (WA).

To your credit, you did cooperate with the police and you did participate in a video record of interview and in my view that is a mitigatory factor (ts 298).

25 Insofar as cooperation with the police is concerned, the investigating detective contacted the respondent and requested an interview with him. An arrangement was made for the respondent to attend at the Mandurah police station on 19 October 2012. The respondent kept that arrangement.

26 I have already described the content of the interview. Apart from the respondent's admission that he was present, the interview was, in substance, self-serving and formed the basis for his defence at trial.

27 The appellant submitted that no mitigatory weight should have been given for the respondent's cooperation with police or for his participation in the video record of interview, as nothing the respondent did facilitated the course of justice or showed any remorse.

28 The respondent submitted that by voluntarily participating in a video record of interview, the respondent assisted the police by admitting that he was present at the time and place of the alleged offences and by giving, to the best of his knowledge, a full and frank account of the events, thereby narrowing the issues in dispute in the trial and that he was entitled to credit for so doing.

29 Section 8(1) of the Sentencing Act 1995 (WA) provides that a mitigating factor is one which, in the court's opinion, decreases the culpability of the offender or decreases the extent to which the offender should be punished. In any particular case, whether an accused's participation in a video record of interview with police is mitigatory and its weight depends upon a consideration of all of the relevant circumstances including, of course, the content of the interview. The fact that an accused participates in a video record of interview is not, without more, mitigatory. There must be something about the interview which rationally enables a sentencer to reach the opinion that the interview is a mitigating factor as defined.

30 As I understand it, the arrangement which was made between the investigating detective and the respondent was a mutually convenient one. Respectfully, I am unable to see how that arrangement was mitigatory. Insofar as the content of the interview is concerned, there is nothing in it which could conceivably decrease the respondent's culpability. His self-induced intoxication is not a mitigating factor. His professed inability to recall the alleged offences cannot be said to be, as the respondent put it, 'a full and frank account of events'. The most that can be said is that the respondent admitted that he could not positively deny the complainant's allegations.

31 He also admitted his presence at the house at the time the offences were committed. It is presumably for this reason that the State adduced the video record of interview as part of its case.

32 At trial, the respondent's presence at the house at the time the offences were committed was established by a number of prosecution witnesses apart from the complainant. Nevertheless, it is true that the respondent did not make his presence at the house an issue at the trial and, to this extent, helped narrow the factual issues in dispute.

33 It was for his Honour to weigh the competing factors on this issue. In the end, it was open to his Honour to give the interview some, albeit very limited, mitigatory weight. Others exercising this sentencing discretion may reasonably have come to a different conclusion. However, as the decision was open to him, I am unable to conclude that he erred as alleged by the appellant. Ground 2 must be dismissed.

34 Before considering ground 1, there is an aspect of the respondent's written submissions with respect to ground 2 that requires some brief comment. In those submissions, the respondent sought to support his arguments by reference to s 8(5) of the Sentencing Act, which reads:

If because an offender undertakes to assist law enforcement authorities a court reduces the sentence it would otherwise have imposed on the offender, the court must state that fact and the extent of the reduction in open court.

35 The present case was not one where the offender had undertaken to assist law enforcement authorities. No evidence was put before the learned sentencing judge to that effect and the respondent did not seek to adduce evidence before this court of any undertaking. The respondent had no claim to mitigation by virtue of s 8(5) of the Sentencing Act.

36 The appellant does not put in issue the length of the sentences imposed on counts 1 and 2. The appellant's case is that his Honour should have sentenced the respondent to immediate terms of imprisonment. The appellant submitted that the offences and the circumstances in which they were committed were serious. Particular emphasis was given to the following factors:

(a) the vulnerability of the victim by virtue of her age and developmental delay;

(b) the persistent nature of the respondent's conduct;

(c) the threats of violence made by the respondent; and

37 The appellant contended that there was little that could properly be said in mitigation. It was said that the respondent's antecedents were poor, having regard to his previous sexual offending, his lack of remorse and the absence of any positive signs towards rehabilitation.

38 The appellant noted that the case law reveals that an offence against s 320(4) ordinarily results in an immediate term of imprisonment being imposed. It was said that there was nothing about the features of the present case which would justify a sentence other than a sentence of immediate imprisonment.

39 The respondent submitted that the circumstances of the offences were not so serious as to make the imposition of a suspended sentence inappropriate. It was also submitted that the mitigating factors identified by the learned sentencing judge were of some significance.

40 It was contended that the imposition of a suspended imprisonment order sufficiently protected the community. Reference was made to cases of sexual offending against a child which did not result in immediate imprisonment, including The Queen v Lonesborough (Unreported, WASC, Library No 950421, 15 August 1995) and Santa Maria v The Queen (Unreported, WASC, Library No 960582, 1 October 1996). Senior counsel for the respondent noted that he had not reoffended in the 6 months since the imposition of the order and that he would be monitored during its term by the sex offender management squad.

41 It was submitted that the sentence was, in all the circumstances, appropriate and that the appellant had not demonstrated that it was manifestly inadequate.

42 The ordinary disposition for offences contrary to s 320(4) of the Criminal Code is a term of immediate imprisonment. This is because of the need to protect children and to provide general and personal deterrence. This is not to say that every offence will be met with an immediate term of imprisonment. Each case, of course, must be determined on its own facts and circumstances. There have been cases where a sentence other than immediate imprisonment has been imposed. Those cases are rare and exceptional. These propositions are well established by previous decisions of this court: see, for example, LJP v The State of Western Australia [2010] WASCA 85 [3].

43 There was nothing exceptional about the facts and circumstances of the present case. Although the offending was not at the most serious end of the spectrum, the criminal conduct was persistent and accompanied by physical coercion and threats. It instilled fear in the victim and upset her. A particularly aggravating aspect of it was the vulnerability of the victim. Not only was she young, but she was developmentally delayed, as should have been plain to the respondent (ts 297).

44 The respondent was not remorseful. Shortly after he committed count 2, he blamed the victim. There is no hint of remorse in his video record of interview.

45 The respondent's conviction in 2010 for indecent dealing is of concern and plainly relevant to the need in this case for personal deterrence. Although the victim of those offences was an adult, the nature and circumstances of the offending were similar to the present case. The respondent does not appear to appreciate the adverse consequences of intoxication upon his behaviour. The respondent must take positive steps to acknowledge and address his alcohol problem. Until he does so, he remains a risk of reoffending in a similar way.

46 The respondent has a good work record, but that and the other subjective factors raised by him were not significantly mitigatory when weighed against his prior offending. The respondent could not call to his aid pleas of guilty.

47 The authorities cited by the respondent are distinguishable from the present case and do not assist him. Lonesborough was a Crown appeal before the abolition of the double jeopardy principle. In that case, the respondent was convicted after trial of indecently dealing with a child on three occasions, over the course of two days, by touching her breast. The learned trial judge fined the respondent $1,500 for each of those offences. The appeal against sentence was dismissed, having regard to the principle of double jeopardy and the fact that the respondent had been at liberty for four months since the imposition of the fines. Moreover, unlike the respondent in the present case, the offender in that case was in poor health and had no relevant criminal record.

48 In Santa Maria, the appellant was convicted after trial of one count of indecent dealing by briefly touching the breast of the 15-year-old victim outside her clothing. He was sentenced to 9 months' immediate imprisonment. The appeal was allowed, and a fine of $3,500 was imposed. Unlike the present case, there was no element of persistence or repetition in the appellant's behaviour and he had what was described in the reasons as an impeccable character with no prior convictions.

49 Ground 1 is an allegation of implied error. His Honour correctly recognised the relevant sentencing principles. He did not misapprehend the circumstances of the offences, the victim or the respondent. However, and with great respect to his Honour, there is an obvious disconnection between these factors, all of which were unfavourable to the respondent, and the imposition of a suspended imprisonment order.

50 Contrary to the respondent's submission, there is nothing about this case which could reasonably justify the imposition of a suspended imprisonment order. The only appropriate disposition was an immediate term of imprisonment: s 39(3) of the Sentencing Act, more so because of the particular vulnerability of the victim. In my opinion, ground 1 has been made out.

51 It is accepted that this court has a residual discretion in a State appeal not to interfere with the sentences imposed, even though a ground or grounds of appeal have been made out. As I have already mentioned, in the course of her submissions, senior counsel for the respondent noted that 6 months had elapsed since the date of sentence. This submission was not made in support of a submission that the residual discretion should be applied. Rather, it was to support a submission that a suspended sentence sufficiently addressed the respondent's risk to the public.

52 Although 6 months have elapsed since the suspended sentence was imposed, that would not, in the circumstances of this case, constitute a reason for invoking the residual discretion. The appeal and the appellant's case were each filed within time. An urgent appeal order was sought and promptly granted. The appeal was listed for hearing on 20 May 2014. The hearing on that day was adjourned in fairness to the respondent who appeared without legal representation and was in jeopardy of immediate imprisonment. Subsequently, the respondent obtained legal representation and the matter was listed, once again, expeditiously.

53 There is nothing to suggest that over the last 6 months the respondent has undertaken any rehabilitation program to address his offending behaviour and there is no evidence to suggest that he has suffered any prejudice by the delay. Moreover, this court's intervention is required to

maintain proper standards of sentencing for the offences committed by the respondent and broad consistency in sentencing.

54 Terms of immediate imprisonment must now be imposed. Their length was not challenged and will stand. So too will the order for cumulacy. A parole eligibility order should be made.

1. The appeal is allowed.
2. The sentences imposed by his Honour Stevenson DCJ are set aside and in lieu thereof the respondent is sentenced on count 1 to 14 months' immediate imprisonment and on count 2 to 18 months' immediate imprisonment, to be served concurrently.
3. The total effective sentence is 18 months' immediate imprisonment, effective from 27 August 2014.
4. The respondent is eligible for parole.