Court of Appeal (WA)|2010-04-28|Before: Lure P, Owen JA, Newnes JA

M -v- THE STATE OF WESTERN AUSTRALIA [2010] WASCA 77 (28 April 2010)

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

CITATION : M -v- THE STATE OF WESTERN AUSTRALIA [2010] WASCA 77

Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA

Criminal law - Sentence - Multiple sexual offences committed by female and male co-accused against a child - Totality principle - Manifest excess - Turns on own facts

Criminal Code (WA), s 321(4), s 321(6), s 321(8), s 329(2), s 329(3), s 329(5), s 329(6), s 329(9), s 329(10)

Sentencing Legislation (Transitional Provisions) Amendment Act 2008 (WA)

Sentencing Legislation Amendment and Repeal Act 2003 (WA), cl 2(1) of sch 1

Orders for cumulation set aside and in lieu thereof all the sentences imposed be served concurrently resulting in a total effective sentence of 7 years' imprisonment

F v The State of Western Australia [2008] WASCA 100

MPD v The State of Western Australia [2008] WASCA 57

R v Petchell (Unreported, WASCA, Library No 930346, 16 June 1993)

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

Schriever v The State of Western Australia [2008] WASCA 133

The State of Western Australia v BLM [2009] WASCA 88

1 McLURE P: The appellants appeal against the sentences imposed for sexual offences committed by them against the female appellant's 13-year-old daughter who has an intellectual disability. The offences include indecently recording a child under 16 years, sexual penetration of a child and encouraging a child under 16 years to engage in sexual behaviour and to do an indecent act. The offences, most of which were committed in December 2003 and January 2004, came to light in 2008 when the male appellant was being investigated on an unrelated matter.

2 On 24 July 2009 the appellants pleaded guilty on the fast-track system to all charges. Of the 27 counts in the indictment, 14 related to both appellants, seven related solely to the female appellant and six related solely to the male appellant. Annexed hereto is a schedule setting out details of the offences and the sentences imposed. The sentencing judge imposed the same sentence on each appellant in relation to those counts applying to both of them.

3 In relation to the female appellant, the sentencing judge ordered that the sentence of 7 years' imprisonment on count 11 be served cumulatively with the sentence of 2 years' imprisonment on count 2, resulting in a total effective sentence of 9 years.

4 In relation to the male appellant, the sentencing judge ordered that the sentence of 7 years' imprisonment on count 11 be served cumulatively with the sentence of 20 months' imprisonment on count 27, resulting in a total effective sentence of 8 years and 8 months.

5 The facts are as follows. The male appellant, who resided in Wickham, met the female appellant in October 2003 when he was visiting Perth. The male appellant became aware that the female appellant had a 13-year-old daughter with an intellectual disability. The complainant, whose intellectual disability is described in the psychiatric report as 'mild', also had physical disabilities. When the male appellant returned to Wickham, he and the female appellant continued to communicate regularly over the telephone and internet. During these conversations the male appellant told the female appellant that he was interested in having sex with the complainant. The male appellant requested the female appellant to take indecent images of the complainant and send them to him. To that end, the male appellant mailed the female appellant a digital camera.

6 The female appellant complied with the male appellant's request and used the digital camera to take 14 indecent images of the complainant and then supplied the images to the male appellant (counts 1 and 2). On 20 October 2008, the indecent images of the complainant were found stored on the male appellant's computer (count 27).

7 Between Christmas and New Year's Eve 2003, the female appellant travelled to Wickham with the complainant and her two sons to visit the male appellant. It was clear to the female appellant that the male appellant had a sexual interest in the complainant.

8 The facts in relation to counts 3 to 26 occurred on or about 16 January 2004. The male and the female appellant, having agreed that they would perform indecent acts on the complainant and encourage the complainant to perform the same, the male appellant set up a video camera in a bedroom of the unit in which the female appellant and her children were staying. Over the course of around one hour and 15 minutes the male appellant and the female appellant encouraged the complainant to do numerous indecent acts and the complainant was sexually penetrated with a sex vibrator. The male appellant indecently dealt with the complainant by the performance of six different acts, including causing her to touch his penis. The female appellant took photographs of the majority of the incidents whilst the video camera set up by the male appellant recorded the entire episode.

9 In relation to count 11, the female appellant showed the complainant a vibrator, which had previously been handed to her by the male appellant. The female appellant asked the complainant to insert the vibrator into her vagina. The complainant told her mother (the female appellant) that she did not want to, so the female appellant took the vibrator and inserted the vibrator into the complainant's vagina only slightly. The female appellant then handed the vibrator to the male appellant who applied some lubricant to it and handed it back to the female appellant. The female appellant inserted the vibrator into the complainant's vagina and moved it in and out several times.

10 The complainant's reluctance to participate in the conduct was met with her mother's repeated reassurance to trust her.

11 The sentencing judge found that the offending was planned, that the male appellant initiated the offending and was the driving force behind it and that although the pleas of guilty would result in a discount in sentence, the case against the appellants was very strong.

12 The sentencing judge found that the physical involvement of the female appellant was greater than that of the male appellant, that the female appellant was a willing and enthusiastic participant who coaxed and encouraged the complainant to participate and had acted in a way that was totally incompatible with her fundamental obligation as a parent. However, the sentencing judge was mistaken as to the respective roles of the offenders in relation to count 11. She said (correctly) that the female appellant inserted the vibrator a little way and that the male appellant then applied lubricant to the vibrator but then said (incorrectly) that the male appellant moved the vibrator in and out several times (ts 12).

13 The sentencing judge concluded that the culpability of each appellant was equal in relation to the offences with which they were jointly charged, as evidenced by the penalties imposed on them as co-offenders. The sentencing judge continued:

The nature and circumstances of the offending, in my view, display persistence, depravity, manipulation of an innocent child, and an unspeakable lack of respect of the child and her dignity ...

In my view, these offences fall into the worst category of offences of this nature and I say this because, although the sexual activity was serious, that probably didn't fall into the worst category; but it's the nature of the offending, involving the premeditation and the exploitation of a 13-year-old intellectually and physically disabled child, and the gross breach of trust ...

I must fix an appropriate and just penalty for each offence. Each offence cannot be considered in isolation, but must be considered in the context of the relationship and the continuing episode of the offending, and the general circumstances which apply and which I have outlined (ts 15).

14 The sentencing judge had before her psychological reports, a pre-sentence report, a psychiatric report and a report from 'SafeCare' where the female appellant was receiving counselling from February 2009.

15 The female appellant was aged 41 at the time of the offending and 46 at the time of sentencing. She had no relevant prior convictions. Her first husband died in 1995 and she was left to care for three children, all of whom have mental and physical disabilities. Prior to the offending she had two further marriages which failed because of abusive behaviour by her husbands. The female appellant commenced engaging with sexual partners on the internet after she separated from her second husband. She is described in the psychological report as having loose sexual boundaries.

16 At the time of the preparation of the psychiatric report the female appellant had a depressive disorder but no major mental illness. There is no evidence (and no finding) that the female appellant had any mental illness at the time of the offending.

17 The psychiatric report notes the female appellant had limited insight into her offending. She was assessed as being at a relatively low risk of re-offending although that assessment was contingent on her addressing the issues which resulted in the offences.

18 The male appellant was aged 24 at the time of the offences. He was aged 30 at the time of sentencing. He left school after completing year 12 and went on to complete an apprenticeship in mechanical fitting. He had a good work history prior to being charged with the offences. He had a strong interest in casual sexual relations with women targeted through the internet, engaging in what the psychological report describes as more extreme sexual practices which were normalised. He liked to film his sexual encounters.

19 The male appellant had no prior convictions. He was assessed by a psychologist as being at a low medium to medium risk of re-offending. The psychologist noted that whilst he had some sense of why the conduct was wrong, sensitivity and insight was severely lacking despite the passage of some five years.

20 The female appellant seeks leave to appeal on the ground that the total sentence offends both limbs of the totality principle.

21 The male appellant contends the sentence of 7 years' imprisonment on count 11 is manifestly excessive, relying solely on the factual error made by the sentencing judge that the male appellant had inserted the vibrator.

22 The male appellant also contends the sentencing judge erred in imposing a total effective sentence that breached the totality principle. Finally, he contends the sentencing judge erred in failing to take into account cl 2(1) of sch 1 of the Sentencing Legislation Amendment and Repeal Act 2003 (WA) (the transitional provisions) which she was required to do under the Sentencing Legislation (Transitional Provisions) Amendment Act 2008 (WA) (the 2008 Amendment Act).

23 The central issue in the male appellant's challenge to the sentence of 7 years' imprisonment on count 11 is whether the factual error made by the sentencing judge about the nature of the male appellant's involvement is material in the sense that it warranted a lesser sentence.

24 In my view the sentencing judge was correct in her assessment that, in relation to the offences committed by both offenders, their culpability was equal. Although the physical involvement of the female appellant was greater, the male appellant was the driving force behind the offending. The factual error made by the sentencing judge was not relevantly material. I would dismiss this ground of appeal.

25 My understanding of the male appellant's contention is that the sentencing judge erred in failing to reduce the total effective sentence by one-third in accordance with the law in The State of Western Australia v BLM [2009] WASCA 88.

26 The 2008 Amendment Act, which came into force on 9 January 2009, repealed the transitional provisions and thus the requirement to reduce an individual sentence by one third. The effect of the 2008 Amendment Act is to require a sentencing judge, where there was an established sentencing range in respect of a particular offence prior to its enactment, to have regard to the minimum custodial periods of the sentences established by that range for the purpose of ensuring that comparable minimum custodial periods are established for those who offend in a comparable way. However, in the case of offending falling within the worst category of offending, and in relation to offending of that type only, the effect of the 2008 Amendment Act is that a sentencing judge may impose the statutory maximum penalty, or a penalty close to the maximum, notwithstanding that the effect of doing so would be to require the offender to serve a substantially increased minimum custodial period: BLM [7].

27 The 2008 Amendment Act directly affects individual sentences only. The effect of the legislation on a total effective sentence is consequential on its impact on the individual sentences. However, save for the male appellant's challenge to count 11 which was based on a factual error, the appellants did not otherwise challenge the individual sentences imposed by the sentencing judge. There being no relevant challenge to the individual sentences, this ground must fail.

28 In any event, the actual penalties imposed for the offences are not close to or at the statutory maximum penalty for the offences. Accordingly, I infer that the sentencing judge's characterisation of the offences as falling into the worst category is not intended to communicate a view that she did not intend to have regard to minimum custodial sentences imposed in comparable cases.

29 The first limb of the totality principle requires that the total effective sentence for each appellant must bear a proper relationship to the overall criminality involved in all the offences, viewed in their entirety and having regard to the circumstances of the case, including those referable to the offender personally. The second limb of the totality principle is that the court should not impose a crushing sentence. The word crushing in this context connotes the destruction of any reasonable expectation of a useful life after release. An aggregate sentence may be inappropriately long under the first limb even if it cannot be described as crushing: Roffey v The State of Western Australia [2007] WASCA 246 [24] - [25]. As noted in Roffey [26], the practical effect of the totality principle is ordinarily to arrive at an aggregate sentence that is less than that which would be arrived at by simply adding up all the terms appropriate for the individual offences. A rationale for the totality principle is that there is assumed rehabilitation and reduced demand for retribution after the initial sentences have been served.

30 Both appellants contend the totality principle requires that all the sentences should have been ordered to be served concurrently, resulting in a total effective sentence of 7 years' imprisonment.

31 Neither the sentence of 9 years' imprisonment for the female appellant or 8 years and 8 months' imprisonment for the male appellant can appropriately be described as crushing. The real issue is whether the total effective sentences are disproportionate to the total criminality of the offending. In considering that question, I have had regard to the total sentences imposed in comparable cases where the victim was a child or de facto child of the perpetrator of the sexual offences. No doubt it would come as a great surprise to most members of the community that there are a very significant number of such cases. Most of the comparable cases the subject of appellate consideration are reviewed in MPD v The State of

Western Australia [2008] WASCA 57 [78] - [90], F v The State of Western Australia [2008] WASCA 100 [51] - [59] and Schriever v The State of Western Australia [2008] WASCA 133 [29] - [35].

32 When regard is confined to the circumstances of the individual offences and the limited period of offending in this case, it falls a very long way short of being in the worst category of offences of this nature. What increases the seriousness of the offending is the special vulnerability of the complainant and the fact that there were multiple offenders. However, the mix of aggravating factors does not bring the case within the worst category of offending of this type. (See for example, MPD (husband and wife co-offenders); R v G [2001] WASCA 160 (husband and wife co-offenders); R v Podirsky (1989) 43 A Crim 404; and R v Petchell (Unreported, WASCA, Library No 930346, 16 June 1993.)

33 Based on my review of the cases and a comparison of minimum custodial periods, I am satisfied that the sentence of 7 years' imprisonment on count 11 is unusually high and has been increased to reflect the course of criminal conduct. This conclusion is borne out by the final paragraph of the sentencing judge's reasons set out above. Moreover, the totality of the criminality is essentially the same for both offenders, albeit by reference to different sentencing factors. Having regard to all sentencing considerations, a total effective sentence of 7 years' imprisonment for each appellant is all that is required to achieve the recognised sentencing objectives, including those of punishment, retribution and deterrence.

34 I would grant the female appellant an extension of time and leave to appeal, allow both appellants' appeal, set aside the orders for cumulation made in relation to each appellant and in lieu thereof order that all of the sentences imposed on the female and male appellants be served concurrently resulting in a total effective sentence of 7 years' imprisonment for each appellant. The other orders made by the sentencing judge are unaffected. The appellants will become eligible for parole after serving 5 years