Court of Appeal (WA)|2003-12-05|Before: Murray ACJ

Lsc v The Queen [2003] WASCA 303 (5 December 2003)

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

CITATION : LSC -v- THE QUEEN [2003] WASCA 303

Criminal law - Sentencing - Various sexual offences - Manner in which mitigatory factors should be taken into account - Application of totality principle - Application of new sentencing principles - Manner in which re-sentencing to be carried out pursuant to new principles

Sentencing Legislation Amendment & Repeal Act 2003, cl 2 of Sch 1

B v The Queen [2002] WASCA 236

Carter v The Queen [2003] WASCA 159

Chinnery v The Queen [2000] WASCA 295

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

Marriott v The Queen, unreported; CCA SCt of WA; Library No 970470A; 19 September 1997

Morley v The Queen [2001] WASCA 49

R v Hough [2002] WASCA 42

Rafferty v The Queen [2002] WASCA 312

Shepherdson v The Queen, unreported; CCA SCt of WA, Library No 920179, 27 March 1992

1 MURRAY ACJ: I am obliged to Hasluck J for access to his Honour's reasons in draft. I express my general agreement with them. They relieve me of the need to deal at any length with the sentences imposed, summarised in the Schedule to his Honour's reasons, the grounds of appeal or the discussion of the applicable principles of law which his Honour has provided. I do wish, however, to give my reasons for my agreement with the result to which his Honour comes, that leave to appeal should be granted and the appeal allowed, and that there must be a resentencing by this Court.

2 Hasluck J has set out the sentencing process employed by her Honour the sentencing Judge. Briefly put, it involved careful consideration of the circumstances of the commission of each of the various offences so as to arrive at a term of imprisonment judged by her Honour to be appropriate without regard to matters available to the applicant in mitigation of punishment. Her Honour then noted that the sentences so imposed would total over 170 years imprisonment. She set about an application of the totality principle. Her Honour did that by ordering cumulative service of some only of the sentences imposed, causing her Honour to reduce the aggregate term to one of 25 years imprisonment.

3 Her Honour then said, "I need to discount that total sentence because of the offender's early pleas of guilty and his recent efforts to ameliorate the harm to his daughter." This she did by ordering further concurrency so as to reduce the aggregate term by 6 years to 19 years, a deduction of almost exactly 25 per cent; as Hasluck J has observed, relatively low in respect of offences of this kind, having regard to the substantial premium which is placed upon conduct by an accused person which relieves the complainant of the need to undergo the particularly traumatic process of trial.

4 In my respectful opinion, her Honour erred in the process she applied. This was a case which, because of the multiplicity of offences, required the sentencing court to adhere strictly to the process to which the majority of the High Court adverted in Pearce v the Queen (1998) 194 CLR 610 when, at 623-4 [45]-[48], McHugh, Hayne and Callinan JJ said:

"To an offender, the only relevant question may be "how long", and that may suggest that a sentencing judge or appellate court should have regard only to the total effective sentence that is to be or has been imposed on the offender. Such an approach is likely to mask error. A judge sentencing an offender for more than one offence must fix an appropriate sentence for each offence and then consider questions of cumulation or concurrence, as well, of course, as questions of totality.

Sentencing is not a process that leads to a single correct answer arrived at by some process admitting of mathematical precision. It is, then, all the more important that proper principle be applied throughout the process.

Questions of cumulation and concurrence may well be affected by particular statutory rules. If, in fixing the appropriate sentence for each offence, proper principle is not applied, orders made for cumulation or concurrence will be made on an imperfect foundation.

Further, the need to ensure proper sentencing on each count is reinforced when it is recalled that a failure to do so may give rise to artificial claims of disparity between co-offenders or otherwise distort general sentencing practices in relation to particular offences."

5 The matter may, as Hasluck J has done, be put in a statutory context by referring to the Sentencing Act 1995, s 6, which endeavours to state in statutory form the principles of sentencing. The important principle, of course, is that each sentence imposed must be commensurate with the seriousness of the offence or, in other words, the criminality involved in its commission. But that criminality includes questions concerning the culpability of the offender, because s 6(2) directs the sentencing court, not only to the statutory penalty for the offence and the circumstances of its commission, including the vulnerability of any victim, but to both aggravating factors set out in s 7 and mitigating factors, to which the Act refers in s 8. These factors may relate to the circumstances of the commission of the offence or be personal to the offender. The application of that process will then produce a sentence for each individual offence designed to be properly proportionate to the criminality involved.

6 Section 6(3)(b) deals separately with the reduction of a sentence by reason of the application of the totality principle. This is consistent with the general law. It is sufficient to refer, for the statement of the principle, to the decisions of the High Court in Mill v The Queen (1988) 166 CLR 59 and Postiglione v The Queen [1997] HCA 26; (1997) 189 CLR 295, together with the decisions of this Court in Jarvis v The Queen (1993) 20 WAR 201 and the as yet unreported decision of Herbert v The Queen [2003] WASCA 61.

7 For present purposes, it is sufficient to say that the proper time to apply the totality principle is at the end of the sentencing process, when sentences are to be imposed for multiple offences, or where otherwise the principle may have application to the case. The application of the principle remains, as it has always been, the taking of a last look at the sentencing process to ensure that the total effect of what would be achieved by the imposition of the sentences proposed is a result properly proportionate to the total criminality of the offending conduct.

8 That may lead to a reduction in the total effect of what has been done, preferably by sacrificing a degree of proper accumulation rather than adjusting the length of individual terms, because the courts accept that the severity of a term of imprisonment increases exponentially with its length. In other words, the simple proposition is that a term of 20 years imprisonment is more than twice as severe as a term of 10 years imprisonment when one considers the requirement for its service.

9 In my opinion, this is a case where the failure to apply proper sentencing principle throughout the process has occasioned error in the final result, an aggregate term of 19 years imprisonment. Further, I consider that to allow for matters of mitigation at the end of the process in respect of an already discounted aggregate has unacceptably devalued the mitigation which was available to the applicant. I would uphold the first and second grounds of the application.

10 In addition, in my opinion, for the reasons given by Hasluck J, a sentence of 9 1/2 years imprisonment for each count of anal penetration was excessive, although the offences were, in the circumstances of their commission, of great seriousness. However, in the circumstances of this case, like Hasluck J, I would consider that a sentence in the order of 6 years imprisonment for the acts of anal penetration would represent an appropriate exercise of discretion. I agree that leave to appeal should be granted and the appeal allowed. The sentences should be quashed and the applicant resentenced.

11 In doing so, I should set out, at least in summary form, what seem to me to be the significant features of the case. When the applicant came to be sentenced he was 38. The offences commenced when he was aged 30. He had been married since he was 20 and there were two children of the marriage; the complainant, who was aged 17 as at the date of sentence, and a son aged 14. As a result of the offending, the applicant was completely isolated from his family, who had reacted, as the victim impact statements showed, with abhorrence to the disclosure of the offences. The victim impact statements make plain the damage done to all involved by the commission of the offences.

12 The last of them were recently committed because, as I say, the offences occurred over the previous 8 year period. The complainant was 9 when they commenced. Only when she was 17 was she able to stop the commission of the offences. Many of them were committed when she was under the age of 16, a circumstance of aggravation leading to an increased maximum penalty. Of the total of 35 offences, to which the applicant pleaded guilty by participating in the process of expedited committal known as "the fast track", all but eight were committed when the complainant was under the age of 16 years. The sentencing Judge found that offences were committed against the applicant's daughter with great frequency, almost weekly during the 8-year period, but of course, as her Honour appreciated, she was to pass sentence only for those offences of which the applicant had been convicted.

13 There was one offence of indecently recording the child and 13 offences of indecently dealing with her, for which offences the maximum penalty was a sentence of 10 years imprisonment where the child was under 16 and 5 years imprisonment where the child was of or over that age. The indecent dealing offences involved acts of touching the child on her vagina and on her bottom, rubbing his penis on her bottom, ejaculating on her back, masturbating upon her, masturbating in front of her, shaving her pubic hair, rubbing his penis between her legs and touching her on the breasts.

14 All the other offences were of sexual penetration of the applicant's daughter. Those offences committed against her when she was under the age of 16 years were punishable by 20 years imprisonment and when she was of or over the age of 16 years, by 10 years imprisonment, but there were various different types of sexual penetration and, both in respect of the indecent dealings and the different acts of sexual penetration, her Honour carefully distinguished between them, ranking them according to her Honour's perception of their relative seriousness. The sexual penetration offences comprised acts of the applicant inserting his finger in the child's anus, inserting a vibrator in her anus, inserting his penis in her anus, inserting lollies in her anus, inserting a hose in her anus, acts of cunnilingus and fellatio, and a number of acts of inserting his penis into her vagina.

15 The sentencing Judge accurately summarised the circumstances involved in the commission of the offences, noting that many of them were associated with what her Honour described as the applicant's preoccupation with anal sex. Significantly, her Honour said, "The child often cried when her father forced himself on her, but her tears were ignored."

16 It was abundantly clear and her Honour found, that, as reflected in the fast track pleas of guilty, the applicant was genuinely remorseful for the offences committed. He had not only acted to ensure, as her Honour put it, "that his daughter never has to undergo any further stress or court appearances", but he had endeavoured, by seeking to transfer half his property to his daughter, to make some reparation to her.

17 The trial Judge had before her and took into account the contents of a pre-sentence report, psychiatric report and psychologist's report. I need not, for present purposes, refer to the applicant's childhood history, but I note merely that he had no psychiatric condition, apart from a major depressive disorder resulting from the court process, social isolation and alienation from his family when the offences were discovered.

18 Incredibly, the psychologist recorded that the offences were associated with the cessation of sexual relations by his wife and the applicant's view that he would nonetheless feel guilt if he engaged in an extramarital affair. It was said that he had no sexual interest in his daughter, but fantasised about his wife or other women when engaging in sexual contact with the child. In one sense, I think it exacerbates the seriousness of the offences that the child was used in that way, despite her protests, as an object for the applicant's sexual gratification.

19 Nonetheless, at the time he came to be sentenced, as I have mentioned, he was accepted to be completely remorseful, willing to participate in treatment and unlikely to offend again. These were indeed his only criminal offences. The applicant, it was accepted, was genuinely relieved when his daughter disclosed the offences. He had wanted to stop, but felt powerless to do so. Although there was power in the mitigatory force of these circumstances, that power was of course limited by the multiplicity of offences and their terrible nature.

20 In the final analysis, and with respect to the careful approach of her Honour the sentencing Judge to the choice of terms for the individual offences, it seems to me that in the first place a sentencing court is bound to give effect to the legislative view that offences of this kind committed against a 16-year-old daughter are substantially less serious than those committed against a daughter under that age, but I would not take the view that, having regard to all the relevant circumstances, those committed when the complainant had attained the age of 16 are to receive half the punishment which would be proper in respect of the offences committed before the complainant attained that age.

21 Secondly, in the circumstances of this case, I can see little, apart from the factor of the age of the complainant, to distinguish between the offences of indecent dealing and the offence of indecently recording the child, whatever may be the nature of the indecent dealing.

22 As to the sexual penetration offences, I would take the view that digital penetration or penetration by the insertion of objects, in the circumstances of this case, is somewhat less serious and requires a lesser sentence than in respect of acts of penile penetration, but I would not distinguish between these forms of penetration of the child's anus except upon the ground of the complainant's age. Further, I would regard the acts of sexual penetration by cunnilingus and fellatio as being on a par with these forms of penetration, by finger or the insertion of objects.

23 Finally, I consider that the acts of penile penetration, whether of the child's vagina or her anus, are the most serious group of offences. They represent the ultimate sexual indignity and invasion of the child's person, but I think the gravity of those offences is not reduced by the fact that the penetration was of the child's vagina rather than her anus. Again, I would only distinguish in relation to the relative seriousness of such acts of penetration on the ground of the complainant's age.

24 Having regard to those matters and to the requirement of the transitional provisions contained in cl 2(1) of Sch 1 of the Sentencing Legislation Amendment and Repeat Act 2003, which requires the imposition of a term of imprisonment two-thirds of the length of the term which would have been imposed had the recent amendments to the Sentencing Act not been made, and having regard to the circumstances of the commission of the offences and the matters of mitigation available to the applicant in his personal circumstances, I consider that the appropriate terms of imprisonment would be:

25 Indecent dealing and indecent recording offences committed before the child turned 16 - 2 years imprisonment reduced ultimately to 1 year and 4 months. These offences were counts 1-4, 6, 11, 13, 18, 19, 22 and 27.

26 Indecent dealing offences committed after the child turned 16 - 1 1/2 years imprisonment reduced finally to a term of 1 year. These were counts 28, 29 and 35.

27 Sexual penetration offences by finger, by the insertion of objects, by cunnilingus and by fellatio committed before the child turned 16 - 4 years imprisonment reduced finally to 2 years and 8 months imprisonment. These were counts 5, 7, 8, 10, 12, 14, 15 and 20.

28 Offences of sexual penetration of this kind generally, committed after the child turned 16 - 3 years imprisonment reduced ultimately to 2 years. These were counts 30 and 33.

29 Offences of sexual penetration by the insertion of the applicant's penis into the child's anus and vagina before she turned 16 - 6 years imprisonment reduced finally to a term of 4 years. These were counts 9, 16, 17, 21 and 23-26.

30 Sexual penetration of this type committed after the child turned 16 - 4 1/2 years imprisonment reduced finally to a term of 3 years. These were counts 31, 32 and 34 on the indictment. I appreciate that in relation to counts 31 and 32 only, I would actually increase the sentences which I would have imposed, by 6 months in each case above the terms of 4 years imposed, by the sentencing Judge, but of course, in the final result, upon the application of the transitional provisions, the sentences imposed would be reduced by a year in each case.

31 It is obvious that no application of principle would require all of those sentences to be imposed cumulatively. Many might be regarded as being offences committed as part of one incident or transaction, meriting concurrent terms. As charged in the indictment, the offences were committed on 12 separate occasions, the first of them being in 1994 and the last being an act of masturbation on or about 8 July 2002. If each of those occasions was treated as meriting separate cumulative punishment, represented by the greatest sentence imposed on each occasion, then the total punishment would still be too great to be properly regarded as proportionate to the total criminality involved. Her Honour the sentencing Judge recognised this to be the case.

32 Her Honour's first inclination was to group together counts 1 to 17, being offences committed between 1994 and 1998, inclusive. One could readily include the indecent recording offence, count 18, in that group. That offence was also committed in 1998. Her Honour then took the offences up to and including count 27, all of which, if one starts at

count 19, were committed in 1999. Counts 28 to 35, the third group of offences taken by her Honour, were those committed in 2001 and 2002 when the applicant had attained the age of 16. Her Honour felt compelled to abandon cumulacy for that group of offences, as she put it, by way of a discount from the total sentence for the applicant's early pleas of guilty and "his recent efforts to ameliorate the harm to his daughter." By that means, the total aggregate term which her Honour imposed was reduced from one of 25 years to one of 19 years.

33 I would adopt, for the purposes of the application of the totality principle, the view of her Honour as to the grouping of the various offences. On that basis, I would therefore have imposed the sentences to which I have referred for counts 1-18 inclusive concurrently with each other, an aggregate term to that point of 6 years imprisonment. I would have imposed the sentences I propose for counts 19-27 inclusive concurrently with each other, but cumulatively upon the sentences for the earlier group of offences. That is a further aggregate term of 6 years imprisonment and the aggregate term for all those offences would, to that point, be 12 years imprisonment. I would then take the final group of offences, those represented by counts 28-35 inclusive, and order the terms I would have imposed for those sentences to be served concurrently with each other, but cumulatively upon the sentences previously imposed, resulting in a further aggregate term of 4 1/2 years imprisonment and a total aggregate term of 16 1/2 years imprisonment.

34 When the individual sentences making up those terms are reduced to two-thirds, the result is an aggregate of 4 years imprisonment for the first group of offences, 4 years imprisonment for the second group of offences and 3 years imprisonment for the third group of offences, a final aggregate of 11 years imprisonment. Those sentences would commence on 25 July 2002, reflecting the backdating ordered by the sentencing Judge, and I would not, of course, interfere with the order of eligibility for parole. In the result that would create a non-parole period of 9 years.

35 MCKECHNIE J: Except for one matter, I am in general agreement with the reasons of Hasluck J and in particular his observations about the application of the totality principle after fixing the appropriate sentence for each offence by taking into account the mitigatory matters. The trial Judge's approach led to an undervaluing of mitigatory factors and the plea of guilty.

36 With great respect, I differ from Hasluck J in his conclusion that 91/2 years for each count of anal penetration was manifestly excessive. It

is well-established that there is no tariff for sexual offences. There is, however, a range of sentences commonly imposed for most offences including sexual offences.

37 The fact that a sentence falls outside the range does not, of itself, lead to a conclusion that the sentence is manifestly excessive or inadequate, as the case may be.

38 In the present case, the offences of anal penile penetration must be seen in the context of the applicant's highly perverse conduct with his daughter. He ideated a child as the object of his fetish. It is the extremity of the conduct, culminating in anal penile penetration, which takes this case outside the range of offences commonly imposed. In any event, counts of anal penetration of a girl are, without more, very serious.

39 I accept that the sentences for those offences are outside the range. However, I am unable to conclude a sentence of 91/2 years represents an error in the Judge's discretion.

40 The issue remains, however, whether the total period of 19 years, however structured, is more than just punishment for the overall criminality.

41 Accepting that the trial Judge has made the errors identified by Hasluck J, the ultimate question is whether this Court thinks a different sentence should have been passed: Code, s 689(3); Grimwood [2002] WASCA 135. The identification of actual error does not necessarily result in a successful appeal.

42 The principle in Lowndes, articulated by Hasluck J, has no application when errors of principle or fact are identified. Once error is identified, the question becomes whether this Court thinks a different sentence should have been passed. In determining the answer to this question, the Court is not constrained by the discretionary judgment of the sentencing Judge. This is so because the exercise of that discretion was affected by error and has for that reason miscarried.

43 The Court's task is to determine the appropriate sentence. If that determination results in the same sentence as that imposed by the sentencing Judge, the appeal will be dismissed. If the determination results in a different sentence, then the appeal will be allowed.

44 Approaching the matter in this way, I would accept the sentences proposed by Hasluck J are appropriate in all the circumstances,

particularly having regard to the pleas of guilty and demonstrated, though much delayed, remorse.

45 I would grant leave and allow the appeal, quash the sentences and re-sentence the applicant in the manner proposed by Hasluck J.

46 This is an application for leave to appeal against various sentences that were imposed in the District Court at Bunbury on 25 November 2002. The applicant was sentenced to a total of 19 years' imprisonment for the offences described in more detail below, with eligibility for parole.

47 The learned Judge observed at the commencement of her sentencing remarks that the applicant had been convicted on his own pleas of guilty to 35 offences involving sexual misconduct. The offences were perpetrated against his daughter over an 8 year period beginning when the daughter was 9 years of age until she put a stop to what was taking place in July 2002 when she was 17.

48 The bulk of the offending arose out of digital and penile anal penetration of the girl and acts focusing on the applicant's preoccupation with anal sex. The sexual conduct also included vaginal penetration with the applicant's penis, instructing his daughter to perform oral sex on him while he performed cunnilingus on her, shaving his daughter's pubic hairs and masturbating in front of her. The child often cried when her father forced himself on her but her tears were ignored.

49 Her Honour noted that to some extent the 35 charges were representative counts. The applicant admitted generally weekly sexual offending against his daughter over the 8 year period in question.

50 The applicant is now 38 years of age and is isolated from his family who have reacted with revulsion to the disclosure of his sexual offending. It seems that the applicant and his wife had two children being their daughter, the complainant, who was 17 years of age at the time of the conviction and a son aged 14 years. Victim impact statements from all three family members were submitted to the Court.

51 The learned sentencing Judge noted that the applicant was raised in Katanning by supportive parents but as a teenager was sent to a hostel in

Middle Swan for his education where he was subjected to sexual abuse by other boys. After leaving school, he engaged in a variety of occupations but was eventually disabled to some extent by neck and back problems. Psychological reports submitted to the Court noted that he suffered no significant personality disorder and accepted full responsibility for his behaviour.

52 Her Honour took account of the fact that the applicant had tried to reduce or ameliorate the damage he had done to his daughter by agreeing to transfer half of his property to his daughter. He had made early pleas of guilty with a view to ensuring that his daughter did not have to undergo any further stress or court appearances. The applicant was assessed as presenting a low risk of re-offending and was said to be suitable for inclusion in a sex offender treatment programme.

53 The offending had occurred over an 8 year period and on 11 separate occasions. It was against this background that the learned sentencing Judge sentenced the applicant in respect of 35 charges comprising 21 counts of sexual penetration, 13 counts of indecent dealing and 1 count of indecently recording the complainant. Twenty-seven of the offences occurred when the complainant was under 16 years of age. Eight offences occurred when the complainant was over 16 years of age.

54 The various charges were laid pursuant to s 329 of the Criminal Code which deals with sexual offences involving a lineal relative such as a daughter. Section 329(9) provides that a person who sexually penetrates a child who is a lineal relative or procures such a child to engaged in sexual behaviour is liable to imprisonment for 20 years where the child is under the age of 16 years, and for imprisonment for 10 years where the child is over the age of 16 years. By s 329(10) a person who indecently deals with a child who the offender knows is his lineal relative is liable to imprisonment for 10 years where the child is under the age of 16 years, or to imprisonment for 5 years where the child is over the age of 16 years.

55 Full particulars of the sentences imposed with respect to each of the 35 sexual offences are set out in the Schedule to this judgment.

The approach reflected in the sentencing remarks

56 The learned Judge noted in the course of her sentencing remarks that her duty was to fix a sentence consistently with the Sentencing Act 1995, being a sentence that reflected the seriousness of the offending and took proper account of any mitigating factors and any aggravating factors, as well as reflecting the community's abhorrence for the sexual abuse of children. It is apparent from her Honour's sentencing remarks that she decided to apply a three stage approach.

57 First, the learned Judge determined the appropriate sentence for each offence, being the term of imprisonment set out in the column "Actual Term" in the Schedule to this judgment. Her sentencing remarks indicate that at this stage she did not purport to take account of mitigating factors. She had in mind to bring the mitigating factors to account in the course of discounting the total sentence. Accordingly, it emerges that the actual term for each offence depicted in the schedule, being terms amounting in aggregate to 170.5 years, do not reflect the mitigating factors mentioned in her Honour's sentencing remarks.

58 Having determined the appropriate sentence for each offence, her Honour then proceeded to structure the sentences by taking into account issues of totality.

59 Finally, having determined that the overall sentence should be 25 years, she proceeded to bring to account the mitigatory factors, including the fast-track plea, to arrive at the operative sentence of 19 years.

60 Towards the end of her sentencing remarks the learned sentencing Judge put the matter in this way:

"The total of these sentences amounts to over 170 years of imprisonment and would be excessive and I must apply the totality principle and reduce the overall sentences and by that order that some sentences be served concurrently with other sentences. I note that the offences took place on 11 separate occasions. Merely making those concurrent with each other would not sufficiently reduce the total sentence.

I order that counts 1 to 17 be served concurrently with each other - a total of 9 and a half years' imprisonment. I order that counts 18 to 27 be served concurrently with each other which amounts to another 9 and a half years' imprisonment. I order that counts 28 to 35 be served concurrently with each other - another 6 years of imprisonment. That leaves a sentence to be served of 25 years' imprisonment.

I need to discount that total sentence because of the offender's early pleas of guilty and his recent efforts to ameliorate the harm to his daughter. I do that by ordering that counts 28 to 35 be served concurrently with counts 18 to 27. that leaves a total sentence for the sex offences of 19 years' imprisonment."

61 It emerges from this passage that the second and third stages of the three stage process involved applying principles relevant to totality and a final reduction of the head sentence in order to take into account matters in mitigation.

62 The learned Judge also dealt with two cannabis offences and ordered that the terms of imprisonment imposed in respect of the same be served concurrently with the 19 year sentence in respect of the sex offences. I will say nothing further about the cannabis offences as they were not brought into issue by the application for leave to appeal.

63 The learned sentencing Judge ordered that the sentences commence on 25 July 2002 and that the applicant be eligible for parole in relation to each sentence.

64 The grounds of appeal set out in the notice of application for leave to appeal are expressed in this way:

"1. The learned sentencing Judge erred in law in failing to give sufficient credit for the fast-track pleas of guilty and the 'genuine remorse' demonstrated by the applicant.

2. The learned sentencing Judge erred in failing to adequately take into account the totality principle, and imposed a sentence which was manifestly excessive.

3. The learned sentencing Judge erred in law in fixing a penalty for the most serious offence, that of anal penetration, which was outside the range of offences of this type."

65 Before turning to the grounds of appeal, it will be useful to look at the relevant statutory provisions and related principles bearing upon the present application.

66 It is well recognised that an appellate court may not substitute its own opinion for that of the sentencing Judge merely because the appellate court would have exercised its discretion in a manner different from the manner in which the sentencing Judge exercised his or her discretion. It must be shown by the applicant that the Court at first instance failed to properly exercise its discretion by imposing a sentence that falls outside the range of a sound exercise of the sentencing discretion: Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665 at 671 - 672.

67 Sentencing principles are referred to expressly in the Sentencing Act 1995. By s 6(1) a sentence imposed on an offender must be commensurate with the seriousness of the offence. This is to be determined by taking into account the statutory penalty for the offence, the circumstances of the commission of the offence including the vulnerability of any victim, any aggravating factors and any mitigating factors. A sentence may be reduced because of any mitigating factors or any rule of law as to the totality of sentences.

68 The latter provision is, of course, a reflection of the totality principle referred to in Postiglione v The Queen (supra). McHugh J said at 307 - 308 that the totality principle of sentencing requires a Judge who is sentencing an offender for a number of offences to ensure that the aggregation of the sentences appropriate for each offence is a just and appropriate measure of the total criminality involved. It is a principle that enables a court to mitigate what strict justice would otherwise indicate, where the total effect of the sentences merited by the individual crimes becomes so crushing as to call for the merciful intervention of the court by way of reducing the total effect.

69 Where the sentence is richly deserved or does no more that meet the crimes committed then a reduction will not result from applying the totality principle: Jarvis v The Queen (supra). Where the principle is to be applied an appropriate result may be achieved either by making sentences wholly or partially concurrent or by lowering the individual sentences below what would otherwise be appropriate in order to reflect the fact that a number of sentences are being imposed: Mill v The Queen (supra) at 63.

70 It is important to understand, however, that there is no tariff for sexual offences: R v Ginder (1987) 23 A Crim R 1 per Burt CJ at 4. Where there are multiple offences of aggravated sexual assault, and where it is just to do so, and in particular, subject to the totality principle, a court might be justified in imposing a sentence of more than 20 years' imprisonment: Bishop v The Queen [2003] WASCA 79.

71 The decided cases establish that sexual offending by adults upon young children within the family environment, involving as it does the abuse of a position of trust, is very serious: Woods v The Queen (1994) 14 WAR 341 per Anderson J at 345. Repeated sexual offences over a substantial period of time carry an offender's level of culpability to a higher level on the scale: Boudville v The Queen [2001] WASCA 133 per Malcolm CJ at par 30; Dauphin v The Queen [2002] WASCA 104 per Steytler J at par 17.

72 The offence of sexual penetration is undoubtedly a serious offence warranting, under normal circumstances, a substantial custodial penalty. In R v Podirsky (1989) 43 A Crim R 404 Malcolm CJ said at 411:

"While I agree with the comment by Burt CJ (in Ginder (supra)) that a 'tariff' in relation to sexual offences remains as elusive as ever, it is the case that for a single act of sexual assault under section 324D of the Code by penile [sic] penetration (still commonly called 'rape') a sentence of about six years is commonly imposed. It is possible that such a sentence could be reduced by mitigating factors. In the case of a single act of aggravated sexual assault by penile [sic] penetration much depends on the circumstances of aggravation, but where the relevant circumstance is that the complainant is under the age of 16 years, a sentence of about 8 years is commonly imposed. Again this could be reduced by particular mitigating factors. Where there is a series of offences of aggravated sexual assault involving a girl under 16 years there is more room for variation, but sentences within the range of 9 to 11 years are commonly imposed."

73 As to the giving of credit for fast-track pleas of guilty, it is generally thought that an early plea of guilty should always be rewarded, not because of any virtue in the individual but as an acknowledgement that the earlier plea of guilty has a beneficial effect in an overcrowded criminal justice system: Radebe v The Queen [2001] WASCA 254; (2001) 162 FLR 313 per McKechnie J at par 18. The discounts usually fall between 25 per cent and 35 per cent, depending on the circumstances: Little v The Queen [2001] WASCA 87 per the Court at par 13. A discount within that range is particularly relevant in sexual assault cases where an early plea of guilty saves the victims from the anguish and lasting trauma of the trial process: Trescuri v The Queen [1999] WASCA 172 per Anderson J at par 25.

74 In determining the appropriate discount for a plea of guilty weight should be given to indications of remorse, acceptance of responsibility and a willingness to facilitate the course of justice: Cameron v The Queen (2002) 209 CLR 339 at par 22 per Gaudron, Gummow and Callinan JJ. Ultimately, the amount of credit to be given for a fast-track plea of guilty is a matter of discretion for the sentencing Judge: R v Pop [2000] WASCA 283; (2000) 116 A Crim R 398 per McKechnie J at par 111.

75 These principles must now be considered in the light of recent amendments to the legislative sentencing regime effected by the Sentencing Legislation Amendment and Repeal Act 2003 and the Sentence Administration Act 2003. The new provisions came into force on 31 August 2003 save for certain exclusions which are not applicable to the present case. In Spina v The Queen [2003] WASCA 219(S) the Court of Criminal Appeal held that the new provisions governed the re-sentencing of an offender following a successful appeal to the Court of Criminal Appeal which was heard after the coming into force of the new regime (as in the present case).

76 The amendments are intended to bring about greater "truth in sentencing". Prior to the amendments, prisoners were automatically entitled to a one-third remission of any sentence of imprisonment pursuant to s 95 of the Sentencing Act (as it then was) unless they had lost remission as a consequence of committing offences against the Prisons Act. For example, an offender who had been sentenced to imprisonment for 3 years without parole was entitled to be released after 2 years. By s 93, a prisoner serving a parole term of 6 years or less was eligible to be released when he had served one-third of the term or, if the term was more than 6 years, when he had served 2 years less than two-thirds of the term. Thus, an offender sentenced to 3 years with eligibility for parole was eligible for release after 1 year. It could be said that the imposition of a 3 year term did not reflect the truth of the matter in that an offender serving a parole term might be out after 1 year; an offender without parole would probably be out after 2 years.

77 The scheme of the new legislation is to do away with automatic remission of one-third to the intent that, prima facie, the term of imprisonment imposed will correspond to the term to be served subject only to the ameliorating effect of parole. The removal of automatic remission and the consequential reduction in the length of the sentences originally imposed has brought with it a need to adjust the non-parole periods (being the adjustments reflected in the new s 93 of the Act) and to ensure, pursuant to transitional provisions, that the terms imposed under the new regime resemble the terms actually served under the previous provisions.

78 Thus, the former s 95 of the Sentencing Act which made provision for automatic remission of one-third has been repealed. The new s 95 provides that a prisoner serving a fixed term that is not a parole term is discharged from that sentence at the end of the term and must be released then.

79 The new s 89 allows for the making of a parole eligibility order unless the Court consider in the exercise of its discretion that the offender should not be eligible because of at least two of the following factors, namely, the offence is serious, the offender has a significant criminal record, there has been a previous lack of compliance, or for any other reason the Court considers relevant. An order is not to be made if the fixed term or aggregate of fixed terms is less than 12 months.

80 The new s 93 provides that a prisoner serving a parole term of 4 years or less is eligible to be released when he has served one-half of the term; if more than 4 years, when he has served 2 years less than the term. In other words, on sentences of up to 4 years, the non-parole period is one half of the sentence with the result that the maximum parole period will be the remaining half of the term. On sentences over 4 years, the non-parole period is 2 years less than the total sentence. This means that there will be a maximum period on parole of 2 years. By s 93(3), if a prisoner serving a parole term has not been released on parole before the term ends, the prisoner is discharged when the term ends.

81 Importantly, the transitional provisions which are set out in Sch 1 to the Sentencing Legislation Amendment and Repeal Act make provision for sentence adjustment. Clause 2 of Sch 1 provides that if a court sentencing an offender to imprisonment proposes to impose a fixed term (with or without a parole eligibility order), it must impose a fixed term that is two-thirds of the fixed term that it would have imposed had the old provisions been in operation at the time of the sentencing.

82 It follows from all of this that on a 3 year sentence under the new regime, for example, the non-parole period will be one half of the term, that is, one and a half years or 18 months, leaving a maximum period on parole of 18 months. On a 6 year sentence, the non-parole period will be the full term less 2 years, that is, 4 years (with a maximum parole period of 2 years); and on a 10 year sentence, it will be 8 years (again with a maximum parole period of 2 years).

83 Thus, in the circumstances of the present case, it emerges that if the appeal is successful, and it becomes necessary to re-sentence the applicant it will be necessary to do so pursuant to the new statutory regime and upon the basis that adjustments are made in the manner allowed for by cl 2 of the Schedule to the transitional provisions. Put shortly, the Court will have to determine what is the fixed term that should have been imposed had the old provisions been in operation at the time of the sentencing, and it will then have to impose a fixed term that is two-thirds of the term that would have been imposed. I will return to this aspect of the matter later.

84 For the time being, in order to draw together these general observations, it will be useful to take account of what was stated in the supplementary reasons of the Court of Criminal Appeal in Spina at par 3:

"It was submitted by counsel that the relevant reference in cl 2.1 to 'a court sentencing an offender to imprisonment' included the re-sentencing of an offender following a successful appeal to the Court of Criminal Appeal. In our opinion, this is clearly correct. Consequently, as foreshadowed in the reasons for judgment, the sentences of 3 years and 6 months which the Court would otherwise have imposed were each reduced by one-third, namely, 1 year and 2 months resulting in an adjustment sentence of 2 years and 4 months for each of the two offences making a total of 4 years and 8 months."

85 As I have indicated, it will be necessary to follow this approach in the present case as to any re-sentencing that has to be done. In that event, I will make use of the Sentence Conversion Table that has been prepared for that purpose.

86 Before turning to the specific grounds of appeal, it will be convenient at this stage to make some observations about the structure of the reasoning reflected in the learned Judge's sentencing remarks.

87 Her Honour undoubtedly gave an appropriate emphasis to the gravity of the applicant's offending. There were various features of the case which underlined the seriousness of the offending behaviour. The complainant was merely 9 years old when the first offence was committed. The applicant was her natural father and was in a position of trust and authority. The offences represented a gross and prolonged breach of trust over an 8 year period with the nature of the applicant's conduct demonstrating a high degree of perversion and deviance.

88 The applicant used the complainant for his own sexual gratification and with no regard for her wellbeing. The offences were humiliating, degrading and physically painful. The offences clearly represented a persistent course of conduct and the applicant continued despite the clear resistance by the complainant. These considerations were reflected in the reasoning of the learned sentencing Judge.

89 However, it will be apparent from earlier discussion, that in fixing an individual sentence for each of the various sentences the learned trial Judge did not at that stage bring to account the mitigating factors to be considered including principally the fast-track plea of guilty. I am of the view that the learned Judge was in error in that regard. It was necessary for the mitigatory factors to be brought to account at that stage rather than at a later stage when the learned trial Judge proceeded to apply the totality principle.

90 I am of the view that the learned Judge's error tended to distort the application of the totality principle. In my view, the proper approach was for the learned trial Judge, in considering each offence, to bring to account the mitigatory factors in order to determine the appropriate fixed term for each offence. Once the aggregate of all the fixed terms had been determined pursuant to that process, it was at that stage that the learned trial Judge should have proceeded to assess the overall criminality of the conduct and apply the totality principle.

Grounds 1 and 2 - Insufficient credit for fast-track plea and totality

91 It emerges from earlier discussion that her Honour discounted the overall sentence by 6 years so as to reduce the aggregate term of 25 years to 19 years. This represented a discount of just under 25 per cent for the factors in mitigation which her Honour identified as being the applicant's early plea and his recent efforts to ameliorate the harm to his daughter.

92 I have already indicated in the observations I have just made that, in my view, her Honour erred in seeking to determine the appropriate discount after application of the totality principle. Accordingly, there is no need to comment further upon the reduction of the sentence from 25 years to 19 years. However, having regard to the decided cases, and the special need for a discounting of the appropriate sentence to reflect a plea of guilty pursuant to the fast-track system in the context of sexual cases, I consider that in the circumstances of this case a discounting factor of up to 33 per cent was appropriate. There are often difficulties of proof in regard to sexual offences and it is therefore desirable that substantial discounts be allowed for early pleas of guilty.

93 It follows from my general observations that, in my view, the proper approach was to determine the appropriate sentence for each offence having regard to the prescribed penalty and aggravating and other relevant factors and then to discount the same by up to 33 per cent in respect of the fast-track plea and the other mitigatory factors mentioned by the learned Judge. I note, in passing, however, that this approach is subject to what I have to say later about the totality principle. That principle requires in the circumstances of the present case that it will be necessary to look again at the overall result and to adjust the same so that the total sentence is not too crushing. The required amelioration can be effected in various ways: Mill v The Queen (supra). However, in the present case I have in mind to apply the approach followed by the learned sentencing Judge and to group the offences in three categories. I will single out a head sentence with a view to making the other terms within that category concurrent with the head sentence. The terms imposed in respect of each category will be served cumulatively. I will return to this line of reasoning later.

94 The learned sentencing Judge imposed a sentence of 91/2 years for each count of anal penetration of the complainant, being a lineal child under the age of 16 years. The maximum penalty for this offence is 20 years' imprisonment. The offence of sexual penetration is a serious offence warranting a substantial custodial penalty. However, the previously decided cases suggest that the range for offences of this type is between 6 and 8 years.

95 In Taylor v The Queen, unreported; CCA SCt of WA; Library No 9181; 9 December 1991 the Court indicated that an appropriate sentence for anal penetration would be 61/2 years. That was in respect of offences that occurred while the complainant was aged between 9 and 15 years.

96 In Wong v The Queen, unreported; CCA SCt of WA; Library No 980218; 2 April 1998, being a case involving 22 sexual offences against the offender's daughter, the Court did not distinguish between penile and anal penetration and imposed a sentence of 41/2 years for each count.

97 Having regard to the decided cases, I consider that the terms of 91/2 years for counts 9, 17 and 21 were manifestly excessive and above the range of sentences normally imposed for this type of offence. I am conscious that the term of 8 years for counts 16, 23, 24, 25 and 26 were at the top of the range for offences of this type. It follows from earlier discussion that the sentences for anal penetration will have to be reduced in order to reflect the mitigatory factors.

98 It is apparent from discussion to this point that, in my view, the learned Judge erred in a number of significant respects. Thus, having regard to my general observations, and to my later observations concerning the fast-track issue and the anal penetration issue, it becomes necessary to revisit each of the offences with a view to determining what is the appropriate fixed term after taking into account the factors I have touched on including in most instances a discount of up to 33 per cent for the mitigatory factors.

99 An approach of this kind is allowed for by the transitional provisions of the new legislation in that I must first arrive at a revised determination as to what sentence should have been imposed for each individual offence under the former statutory regime. I pause here to say that I have now had the advantage of reading in draft the reasons for judgment of Murray J. I am strongly influenced by what he has had to say with the result that, when I combine his reasoning with my own observations, I have arrived at the same conclusions as to what sentence should have been imposed for each offence under the former statutory regime.

100 The conclusion I have arrived at in that regard with respect to each offence is set out in the second column marked "Revised Term" forming part of the Schedule to this judgment. It emerges that the total of the revised terms amounts in aggregate to 126 years (or 1,512 months).

101 It seems that I must then, pursuant to the new legislation, make an adjustment so that I impose a term that is two-thirds of the revised term, bearing in mind that the revised term is the term that would have been imposed had the old provisions been in operation at the time of this re-sentencing exercise. The fixed term that I would propose having regard to the new provisions is set out in the third column of the schedule marked "Adjusted Term". It emerges that the aggregate of the adjusted terms is 84 years (or 1,008 months).

102 It follows from earlier discussion that I must now apply the totality principle in order to alleviate an aggregate term of the kind reflected in the "Adjusted Term" column of the Schedule that would otherwise be crushing. In that regard, my views are generally consistent with the views expressed by Murray J. As I indicated in earlier discussion, I will group the various offences in the manner employed by the learned sentencing Judge as adjusted by Murray J to include count 18 in the first group.

103 Thus, I consider that counts 1 to 18 should be grouped together as a first category. With a view to ensuring that a specific sentence is imposed for each offence, I propose that the sentence for each offence be the term designated in the Adjusted Term column of the Schedule. Within the first category, the term of 4 years designated for count 17 will be treated as the head sentence to the intent that the remaining sentences in that category will be served concurrently with the count 17 sentence so that an aggregate term of 4 years is attributed to the first category of offences.

104 Counts 19 to 27 will be grouped together as a second category with the sentence of 4 years applicable to count 21 to be treated as the head sentence. The other offences within the second category are to be served concurrently so that 4 years is attributed to these offences.

105 Counts 28 to 35 will be grouped together as a third category with the sentence of 3 years applicable to count 34 to be treated as the head sentence within this category. The other offences within the third category are to be served concurrently with the count 34 sentence so that 3 years are attributed to this group of offences. The head sentences in each of the three categories, namely, the sentences for counts 17, 21 and 34 are to be served cumulatively to the intent that the overall or final aggregate sentence will be 11 years commencing from 25 July 2002.

106 I consider that eligibility for parole should be allowed. It follows from earlier discussion that in circumstances in which the aggregate term exceeds 6 years and amounts to 11 years in total that the appropriate order is that there will be a non-parole period of 9 years, leaving a maximum period on parole of 2 years.

107 I note in passing that under the former provisions the previously imposed term of 19 years with eligibility for parole would have given rise to an eligibility for release date of 2 years less than two-thirds of the term, that is to say, 10 years 8 months. The consequence of the re-sentencing has therefore been to effect a significant reduction in the final aggregate sentence in real terms when the provisions concerning eligibility for parole are brought to account. It is on that basis, for the reasons given previously, that, in my view, leave to appeal should be allowed, the appeal allowed, and fresh sentences imposed.

108 I consider that the application for leave to appeal against sentence should be allowed. The appeal should be allowed but the offender is required to be re-sentenced with the result that an aggregate term of imprisonment should be imposed pursuant to the new sentencing regime of 11 years commencing 25 July 2002. This should be accompanied by eligibility for parole with the result that the non-parole period representing the term of imprisonment to be served will be 9 years.

Indecent dealing by rubbing your penis on her bottom

Sexual penetration by inserting your finger in her anus

Sexual penetration by inserting a vibrator in her anus

Sexual penetration by inserting your penis in her anus

Sexual penetration by inserting lollies in her anus

Indecent dealing by masturbating in front of the child

Sexual penetration by inserting your penis in her mouth

Sexual penetration by inserting your penis in her vagina

Sexual penetration by inserting your penis in her anus

Indecent dealing with the child by shaving her pubic hair

Sexual penetration by performing cunnilingus on the child

Sexual penetration by inserting your penis in her anus

Indecent dealing by rubbing your penis between her legs

Sexual penetration by inserting your penis in her vagina

Sexual penetration by inserting your penis in her anus

Administration Act 2003

Legislation Amendment and Repeat Act 2003

Legislation Amendment and Repeal Act 2003

Lsc v The Queen [2003] WASCA 303

At a glance

Court

Decision date

Before

Catchwords

Source

Catchwords

Judgment (158 paragraphs)

Lsc v The Queen [2003] WASCA 303 (5 December 2003)

The approach reflected in the sentencing remarks

Grounds 1 and 2 - Insufficient credit for fast-track plea and totality

Parties

Legislation Cited (4)

Cases Cited (9)