LTT -v- THE STATE OF WESTERN AUSTRALIA [2022] WASCA 31 (15 March 2022)

4 The appellant now appeals against his sentence. His sole ground of appeal asserts that the total effective sentence infringed the first limb of the totality principle.

5 For the reasons that follow, we are not persuaded that error can be inferred from the sentencing outcome. The ground of appeal is not made out and the appeal must be dismissed.

6 The offences for which the appellant was sentenced, and the sentences imposed, are summarised in the table below. Each offence alleged that the victim was 'a child whom [the appellant] then knew to be his lineal relative ... [and who was] under the age of 16 years':

On a date unknown between 31 December 2015 and 1 January 2017 at Wanneroo, the appellant sexually penetrated the victim's vagina with his fingers

On a date unknown between 31 December 2016 and 1 March 2017 at Wanneroo, the appellant sexually penetrated the victim's vagina with his fingers

On the same date and place as count 2, the appellant indecently dealt with the victim by procuring her to rub his penis

On a date unknown between 31 May 2019 and 24 June 2019 at Lexia, the appellant indecently dealt with the victim by giving her red, see-through lingerie

On the same date and place as count 4, the appellant sexually penetrated the victim's vagina with his fingers

On the same date and place as count 4, the appellant sexually penetrated the victim by engaging in cunnilingus

On the same date and place as count 4, the appellant indecently dealt with the victim by procuring her to rub his penis

On the same date and place as count 4, the appellant indecently recorded the victim by filming her

On an unknown date between 23 June 2019 and 1 January 2020 at Lexia, the appellant indecently dealt with the victim by giving her black, see-through lingerie to wear

On the same date and place as count 9, the appellant sexually penetrated the victim's vagina with his fingers

On the same date and place as count 9, the appellant sexually penetrated the victim by engaging in cunnilingus

On the same date and place as count 9, the appellant indecently dealt with the victim by procuring her to masturbate him

On the same date and place as count 9, the appellant indecently recorded the victim by filming her

On 22 March 2020 at Lexia, the appellant sexually penetrated the victim's vagina with his fingers

On the same date and place as count 15, the appellant indecently dealt with the victim by touching her breasts

On the same date and place as count 15, the appellant sexually penetrated the victim by engaging in cunnilingus

On the same date and place as count 15, the appellant indecently dealt with the victim by procuring her to rub his penis.

7 The facts of the appellant's offending were and are not in dispute. They may be summarised as follows.[1]

8 Count 1 occurred some time in 2016, when the victim was 7 or 8 years old. The victim was at the appellant's home in Wanneroo. The appellant and victim were alone in a bedroom. While the victim was lying on the bed, the appellant removed her clothing, leaned over her, and began rubbing the victim's clitoris with his fingers. The victim began pulling away, at which point the appellant stopped.

9 Counts 2 and 3 occurred on a date in January or February 2017. The victim was 8 years old. The victim was at the appellant's home in Wanneroo. The appellant and the victim were alone in a bedroom. While the victim was lying on the bed the appellant removed her clothes, placed his hand on her vagina and then rubbed the victim's clitoris with his fingers (count 2). The appellant then asked the victim to rub his penis. The appellant removed his pants and began masturbating. The victim then put her hand on his erect penis and did the same (count 3). The offending stopped when the victim told the appellant that he should go back to work.

10 Counts 4 to 8 occurred between 31 May 2019 and 24 June 2019. The victim was 10 years old. The victim was at the appellant's home in Lexia. The appellant and the victim were alone in a bedroom. While he was in a walk-in robe, the appellant asked the victim to put on lingerie (count 4). The appellant then came out of the robe wearing no pants and holding a GoPro camera. The appellant removed the victim's lingerie, put his hand on her vagina and then rubbed the victim's clitoris with his fingers (count 5). The appellant then positioned his head between the victim's legs and began performing cunnilingus (count 6). The appellant then asked the victim to rub his penis. The victim put oil on the appellant's genitals and rubbed his erect penis and testicles until he ejaculated (count 7). The appellant recorded the victim while this was occurring (count 8).

11 Counts 9 and 11 to 14 (count 10 was discontinued) occurred between 23 June 2019 and 1 January 2020. The victim was 11 years old. The victim was at the appellant's home in Lexia. The appellant and the victim were alone in a bedroom. While he was in a walk-in robe, the appellant asked the victim to put on lingerie (count 9). The appellant emerged from the walk-in robe with a GoPro camera, moved the lingerie to the side, put his hand on her vagina and rubbed the victim's clitoris with his fingers (count 11). The appellant then removed the lingerie while continuing to rub her clitoris, before engaging in cunnilingus (count 12). The appellant then put oil on his erect penis, which the victim rubbed until he ejaculated (count 13). The appellant recorded the victim during the course of the offending (count 14).

12 Counts 15 to 18 occurred on 22 March 2020. The victim was 11 years old. The victim was at the appellant's home in Lexia. The appellant took the victim camping at the rear of his property. They set up a tent with a mattress inside. Once inside, the appellant removed the victim's clothing and placed oil on her, before putting his hand on her vagina and rubbing her clitoris with one hand (count 15), and squeezing her breast with the other (count 16). The appellant then began performing cunnilingus (count 17). The appellant then put oil on his penis, which the victim began rubbing (count 18). The appellant stopped when the victim told him they should return to the house.

13 On 27 March 2020, the victim participated in a visually‑recorded interview with a specialist child interviewer. The victim disclosed offending beyond the offending the subject of the charges, but could not remember specific details of the other alleged offending.

14 The appellant was sentenced on the basis that the offences the subject of the indictment were representative of his conduct in the relevant period.

15 The appellant was 69 years old when he was sentenced.

16 He was born in Great Britain. His parents separated when he was 2 years old and the appellant had no further contact with his father. After his parents' separation, the appellant lived with his grandparents, uncles and aunts for a period. He and his brother later returned to live with his mother.

17 After leaving school, the appellant completed a boilermaker/welder apprenticeship and worked in a number of roles.

19 In Australia, the appellant had regular employment, including in welding, mechanical and motor vehicle sales.

20 The appellant has been married for just over 50 years. He and his wife have two sons and a daughter. As a result of the appellant's offending behaviour, by the time he was sentenced the appellant was living separately from his wife.

21 The sentencing judge noted that the appellant suffers from type 2 diabetes, a number of hernias dating back to 2010 (which may in the future require surgery) which prohibit the lifting of heavy objects, requires tendon repair in one shoulder, has 'moderate' arthritis and tendonitis in his right foot, and has reactive depression and anxiety as a result of the court action. The appellant is currently on a mental health plan.

22 The appellant had previously been fined for possession of firearms or ammunition without a licence and for having an inadequate storage facility for firearms.

23 The judge made the following observations as to the psychological report and pre‑sentence report:

(a) The appellant's denial to the psychologist of any deviant sexual interest was not candid.

(b) The appellant presented himself to the authors of the reports as a passive and somewhat equal participant in the abuse.[2]

(c) While the psychological report concluded that the appellant's risk of reoffending was low, the judge noted the observation that the appellant's sexual deviancy, which is apparently present, is strongly predictive of future sexual offending so that the appellant may present a greater risk in specific contexts.[3] Further, the appellant's 'distorted thinking' and 'passivity' on presentation combined with the sexual deviancy to increase the risk factors for reoffending where grooming was possible.[4]

24 The sentencing judge identified a number of aggravating features of the appellant's offending:[5]

(1) The victim of the appellant's offending was a vulnerable young girl between the ages of 7 and 11.

(2) As the victim's grandfather, the appellant was in a position of trust. Where he should have been a source of love, support, guidance and safety for her, instead he committed the offences, which were a gross and serious breach of his position of trust.

(3) There was a very substantial age and power disparity between the appellant and his young victim.

(4) The appellant groomed the victim, spending time together for the purpose of grooming.

(5) The offending was persistent and sustained over a long period of time. The offending only came to a conclusion when the victim was able to find the courage to tell her parents about the abuse.

(6) The offending was premeditated and planned. The appellant told the victim repeatedly not to tell anyone about the abuse, thereby taking active steps to conceal his offending which he knew to be wrong.

(7) The appellant exploited the vulnerability of an immature victim for his own sexual gratification.

25 The judge referred to the devastating psychological impact of the offending on the victim and her immediate family. Her Honour recounted a number of aspects of the victim's victim impact statement, and observed that her parents' victim impact statements expressed what would be expected from loving, caring, devoted parents in expressing their hurt, anger, shock and despair at the deep betrayal committed by the appellant.[6]

26 The sentencing judge identified the main mitigating factor was the appellant's pleas of guilty, for which the judge discounted the individual sentences by 25% pursuant to s 9AA of the Sentencing Act 1995 (WA).[7]

27 The sentencing judge noted references from people who knew the appellant both in a professional and personal capacity - describing him as hardworking, loyal, honest and helpful - and from some members of his family. Nevertheless, the judge was not persuaded that the appellant could properly be said to be a person of good character.[8]

28 Nor was the judge persuaded that the appellant was genuinely remorseful. While the appellant had made statements expressing remorse, the judge found that those statements were more reflective of the remorse the appellant felt for the consequences of what he had done, including for his wife.[9] The judge referred to the appellant's attempts to minimise or justify his offending behaviour and to shift the blame to his young and vulnerable victim.[10]

29 The judge took into account the appellant's age and health issues, noting that the appellant was likely to spend a large proportion of the remainder of his life in custody and that his time in custody will weigh more heavily on him than on a younger person of good health.[11]

30 The judge imposed the sentences set out in the table at [6] above.

31 After referring to the principles concerning totality, the judge found that the appropriate total effective sentence reflecting the appellant's overall criminality in all the relevant circumstances was a sentence of 8 years 11 months' imprisonment.[12]

32 The single ground of appeal asserts that the total effective sentence of 8 years 11 months' imprisonment infringes the totality principle in that it does not bear a proper relationship to the overall criminality of the appellant's conduct, having regard to all relevant circumstances.

33 The application for leave to appeal was referred to the hearing of the appeal.[13]

34 The appellant emphasises his pleas of guilty, submitting that, given the discount for his pleas, the sentence is equivalent to a sentence after trial of something around or greater than 11 1/2 years.

35 In support of the contention that the sentence infringes the totality principle, the appellant refers to a number of cases said to have some comparable features:[14] YNT v The State of Western Australia;[15] UGN v The State of Western Australia;[16] NDY v The State of Western Australia;[17] The State of Western Australia v CGT;[18] The State of Western Australia v Prince;[19] FGC v The State of Western Australia;[20] DKA v The State of Western Australia;[21] LFG v The State of Western Australia;[22] MHE v The State of Western Australia;[23] Van Zyl v The State of Western Australia;[24] FWB v The State of Western Australia;[25] KC v The State of Western Australia;[26] and HFM v The State of Western Australia.[27]

36 Counsel particularly emphasised YNT and UGN as reasonable comparators said to indicate error in the sentencing outcome in the present case.

37 The legal principles governing appeals contending that the total effective sentence infringes the first limb of the totality principle are well known. They have been stated many times in this court, and in other courts.[28]

38 Sentencing is a discretionary exercise. An appellate court can only intervene if the appellant demonstrates either an express or implied material error. Implied error arises where the end result is so unreasonable or unjust that the court must conclude that a substantial wrong has occurred. Thus, an appellate court cannot substitute its own opinion for that of the sentencing court merely because the appellate court would have exercised the sentencing discretion differently.

39 The first limb of the totality principle requires that the total effective sentence imposed on an offender who has committed multiple offences bears a proper relationship to the overall criminality involved in all of the offences (including those, if any, in respect of which the offender is still serving or is yet to serve a term of imprisonment), viewed in their entirety, having regard to all relevant facts and circumstances including those referable to the offender personally (and including, for example, the desirability of accommodating any wish to rehabilitate), all relevant sentencing factors and the total effective sentences imposed in comparable cases.

40 The range of sentences imposed in other cases does not establish the range of a sound exercise of the sentencing discretion. Sentences customarily imposed in comparable cases provide a yardstick or reference point for ensuring broad consistency in sentencing, bearing in mind the scope for significant variations in relevant sentencing factors and that there is no single correct sentence. What is important are the unifying principles which sentences imposed in comparable cases reveal and reflect.

41 When this court dismisses an appeal against sentence and when it resentences on a successful appeal, its decision does not fix the upper or lower limit of the range of possible sentences.

42 The appellant's offending was serious in a number of respects and for a number of reasons.

43 The appellant committed 17 offences. Eight of those offences had a maximum penalty of 20 years' imprisonment and the other nine had a maximum penalty of 10 years' imprisonment.

44 As a young girl aged between 7 and 11, and as the appellant's granddaughter, the victim of the appellant's offending was extremely vulnerable.

45 The appellant's offending involved a gross breach of trust in more than one respect. As the victim's grandfather, the appellant occupied a position with the privilege and responsibility of a very high level of trust. Moreover, the victim's parents trusted the appellant, as their father or father‑in‑law, to care for and look after their daughter. The appellant's offending was a gross betrayal of that trust.

46 Self‑evidently, as between the appellant and the victim, there was an enormous disparity in their age and their power.

47 The appellant's offending was premeditated and planned. The appellant groomed the victim. The judge found, without challenge on appeal, that he used time he spent with the victim doing woodwork and metalwork to groom his victim. Further, the appellant repeatedly told the victim not to tell anyone about the abuse, thus taking active steps to conceal his offending.

48 The offending was sustained over a period of years.

49 The appellant engaged in a concerted process of exploiting, for his own sexual gratification, the vulnerability of a person who was entitled, and whose parents were entitled, to rely on the appellant as a source of care and support.

50 The victim impact statements demonstrated the devastating effects of the appellant's offending on the victim, and on her parents.

51 The appellant's offences were representative of broader offending conduct. Of course, that is not to say that the appellant is to be punished for offending that is not the subject of a charge. However, the offending the subject of each of the five episodes, spread over years, cannot be seen as in any sense isolated, even in the year in which it occurred.

52 The appellant's offending occurred on five distinct occasions, spread over a period of years. Moreover, several of those episodes themselves comprised a number of different offences, each of which involved distinct criminality.

53 The third incident, involving counts 4 to 8, illustrates the point. It comprised five offences. Two of those offences were offences of sexual penetration, one involving digital penetration and the other involving cunnilingus. The indecent dealing offence was a serious example of that offence, in which the appellant had the victim masturbate him to ejaculation. The appellant also dealt with the victim indecently by having her wear lingerie and indecently recorded the victim with a Go-Pro camera. The combination of all of these elements of the appellant's criminality reflected in the third incident meant that the offending the subject of that incident alone justified and required a very substantial term of imprisonment.

54 The same is true of the fourth incident, the subject of counts 9 and 11 to 14, and the fifth incident, comprising counts 15 to 18.

55 Given that there were five distinct incidents, spread over a period of several years, the appellant's criminality justified and sustained a significant degree of accumulation in the sentencing exercise.

56 As to mitigating factors, the appellant's pleas of guilty, for which the judge discounted the individual sentences by 25% under s 9AA of the Sentencing Act was, of course, an important mitigating factor. In cases involving sexual offending against child complainants, the need to give significant mitigating effect to a plea of guilty has often been recognised. The following observations in LYN v The State of Western Australia[29] were adopted by Mitchell and Beech JJA (Quinlan CJ agreeing) in MHE:[30]

... It was important that the mitigating effect of the pleas of guilty be reflected, not only in the individual sentences, but in the total effective sentence. That is particularly so in a case involving sexual offending against child complainants. The process of giving evidence of such offences is often re-traumatising and damaging for the victims. Unless the benefits to the victims and the State resulting from pleas of guilty are properly reflected in the total effective sentence, there will be little incentive for an offender to plead guilty. The absence of such an incentive will increase the number of victims who are exposed to the risk of further psychological harm through the requirement for them to participate in the trial process. This court has previously recognised the appropriateness of a substantial discount for a plea of guilty in cases of sexual offending against children. (footnotes omitted).

57 Otherwise, there was little by way of mitigation in favour of the appellant. The judge's findings that the appellant was not remorseful, not of prior good character, and had not been candid as to his sexual interest in children are all unchallenged.

58 The principles applicable to cases of intrafamilial child sexual abuse are well established. The primary sentencing considerations for such offences are appropriate punishment of the offender and personal and general deterrence, having regard to the need to protect vulnerable children. Matters personal to an offender are ordinarily of less mitigatory weight than might otherwise be the case. Even where an offender is otherwise of good character - not found to be so in the present case - ordinarily, good character has only little weight because the offences are of a kind that, until revealed, generally do not impact on other people or on their perception of the offender.

59 There is no 'tariff' for offences of the kind committed by the appellant, or for sex offences generally, because of the great variation that is possible in the circumstances of the offending and the offender. The sentence to be imposed in a particular case depends upon its individual facts and circumstances, having regard to the maximum penalty and all relevant sentencing factors. The same is true of the total effective sentence to be imposed in a particular case.

60 It is also well established that the provisions of the Criminal Code (WA) creating offences of which sexual penetration is an element do not create a hierarchy of sexual penetration. It is not to be assumed that one form of sexual penetration is necessarily more, or less, serious than another. The seriousness of every offence of unlawful sexual penetration must be determined by its own individual circumstances.[31]

61 None of the sentences for the individual offences are challenged by the appellant. Nor could they be. Many of the individual offences are properly characterised as moderate; viewed in isolation, many of the offences would have sustained markedly higher individual sentences.

62 Comparable sentencing cases should be considered to ensure broad consistency and are one yardstick for the evaluation of whether error is to be implied from the sentencing outcome. The consistency sought by the exercise of appellate jurisdiction is consistency in the application of relevant legal principles, not numerical consistency. The observations of Mitchell JA in JJR v The State of Western Australia,[32] cited with approval in MHE,[33] are also pertinent:

Often, given the wide variety of combinations of offending conduct, offenders and victims involved in sexual offences against children, different views may reasonably be taken as to whether the overall criminality involved in a group of offences in one case is greater or lesser than that involved in a group of offences in a different case. That variety makes it difficult to identify direct comparators and complicates any attempt to analyse whether the total effective sentence imposed in a particular case reveals a comparatively more severe or lenient approach than that adopted in a different case.

63 We have considered a large number of cases involving sexual offending against children, including the review of cases in VIM v The State of Western Australia;[34] JJR;[35] MHE;[36] The State of Western Australia v AHD;[37] and the cases referred to by the appellant and the respondent. We note that, in The State of Western Australia v CGT,[38] this court observed that the sentencing outcome in Prince must be regarded as an outlier and of limited utility as a comparator. None of the cases seem to us to be closely comparable to the present case, which exhibited the features to which we have referred at [42] ‑ [52] above. The two cases highlighted by the appellant, YNT and UGN, do not assist him. Both involve offending that is markedly less serious than the appellant's offending. YNT involved only two counts. While UGN involved eight counts, only two of them were of an offence involving sexual penetration.

64 Bearing in mind the principles in [40] ‑ [41] above, consideration of comparable cases provides no indication that the sentence in this case exceeds the bounds of a reasonable exercise of the sentencing discretion. Having regard to the various similar and distinguishing features between the offending in the present case and the offending in the cases said to be comparable, the total effective sentence imposed in the present case is broadly consistent with customary sentencing standards for offending of this kind.

(1) the maximum penalties for each offence;

(2) the facts and circumstances of the offences;

(3) the vulnerability of the victim and the serious impact of the offending on her;

(4) the features of the appellant's offending to which we have referred in [42] ‑ [52];

(5) the general pattern of sentences for offences of this kind;

(6) the importance of denunciation, and personal and general deterrence; and

(7) all aggravating and mitigating factors,

the total effective sentence imposed cannot be said to have been unreasonable or plainly unjust. Error cannot be inferred from the sentencing outcome. On a proper exercise of the sentencing discretion it was open to the sentencing judge to impose the sentence which her Honour imposed. The total effective sentence did not infringe the first limb of the totality principle.

66 For these reasons, while we would grant leave to appeal, the ground of appeal is not made out.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.

[14] Appellant's submissions [12] - [41].

[15] YNT v The State of Western Australia [2021] WASCA 89.

[16] UGN v The State of Western Australia [2021] WASCA 10.

[17] NDY v The State of Western Australia [2020] WASCA 172.

[18] The State of Western Australia v CGT [2018] WASCA 226.

[19] The State of Western Australia v Prince [2011] WASCA 22.

[20] FGC v The State of Western Australia [2008] WASCA 47; (2008) 183 A Crim R 313.

[21] DKA v The State of Western Australia [2015] WASCA 112.

[22] LFG v The State of Western Australia [2015] WASCA 88.

[23] MHE v The State of Western Australia [2019] WASCA 133.

[24] Van Zyl v The State of Western Australia [2017] WASCA 1.

[25] FWB v The State of Western Australia [2016] WASCA 118.

[26] KC v The State of Western Australia [2008] WASCA 216.

[27] HFM v The State of Western Australia [2012] WASCA 217.

[28] See, for example, Roffey v The State of Western Australia [2007] WASCA 246 [23] ‑ [26] and Kabambi v The State of Western Australia [2019] WASCA 44 [21].

[29] LYN v The State of Western Australia [2019] WASCA 45 [51].

[31] The State of Western Australia v Akizuki [2008] WASCA 267; (2008) 192 A Crim R 373 [68]; Musgrave v The State of Western Australia [2021] WASCA 67 [6], [126] - [127], [283].

[32] JJR v The State of Western Australia [2018] WASCA 51 [168].

[34] VIM v The State of Western Australia [2005] WASCA 233; (2005) 31 WAR 1 [298] ‑ [309].

[37] The State of Western Australia v AHD [2021] WASCA 13 [59] ‑ [67].

[38] The State of Western Australia v CGT [2018] WASCA 226 [65].