Court of Appeal (WA)|2003-02-17|Before: Anderson J, Steytler J, Miller J, McKechnie J

Merino v The Queen [2003] WASCA 18 (17 February 2003)

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

CITATION : MERINO -v- THE QUEEN [2003] WASCA 18

Criminal law and procedure - Sentencing - Sexual penetration and indecent dealing by father on daughter aged 711 years - Neither individual sentences nor total sentence of 12 years considered manifestly excessive - Turns on own facts

Application for leave to appeal against sentence refused

Forbes v The Queen, unreported; CCA SCT of WA; Library No 950226; 20 February 1995

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

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

R v Wozencraft, unreported; CCA SCt of WA; Library No 6606; 25 February 1987

1 STEYTLER J: This is an application for leave to appeal against sentence. On 30 April 2002 the applicant, then a 40-year-old man, was sentenced by a Judge of the District Court in respect of his pleas of guilty to three counts of sexual penetration of his natural daughter, two counts of indecently dealing with her and one count of attempting to sexually penetrate her.

2 On the first count, being one of the indecent dealing counts, he was sentenced to a period of 2 years' imprisonment. On counts 2 and 3, each being counts of sexual penetration, he was sentenced in each case to a period of 10 years' imprisonment to be served concurrently. On count 4, a further count of sexual penetration, he was sentenced to a period of 12 years' imprisonment to be served concurrently. On count 5, the second count of indecent dealing, he was sentenced to a period of 3 years' imprisonment to be served concurrently. On count 6, being that of attempted sexual penetration, he was sentenced to a period of 5 years' imprisonment to be served concurrently. The total period of imprisonment to be served by the applicant was consequently one of 12 years. The applicant was declared to be eligible for parole.

3 There is only one ground of appeal, being to the effect that the sentencing Judge's discretion miscarried in that the period of 12 years' imprisonment (although the ground refers to 10 years) ordered to be served by the applicant was manifestly excessive.

4 The facts in relation to these offences are, as the sentencing Judge said, particularly disturbing. So far as counts 1 and 2 were concerned, the applicant masturbated in front of his 7-year-old daughter whilst she lay on a bed with him. He then got on top of her, removed her clothing, and penetrated her vagina with his penis, telling her that she should not be afraid and that she was going to do that with her boyfriend.

5 Count 3 occurred some two or three weeks later. The applicant entered her bedroom in a dressing gown and exposed his erect penis to her. He then picked her up, put her on the bed and, despite the fact that she was struggling, screaming and crying, forced his penis into her vagina.

6 Count 4 occurred nearly four years later. The applicant's daughter was then about 11 years of age. She and her 13-year-old brother were on the floor of the lounge room of the applicant's home, watching a pornographic video. The two children then had sexual intercourse while the applicant watched. Thereafter, he told his daughter that he was himself going to have sex with her and, despite her refusal, forced himself upon her and penetrated her vagina with his penis while his son watched. He told his daughter that it was to be a secret between the three of them.

7 Counts 5 and 6 occurred some nine months later, while the applicant's daughter was still about 11 years old. The applicant played a pornographic video. His daughter asked him to turn it off and got up and left the room. He followed her, grabbing her from behind and pulling her towards him. While she was crying and telling him to stop, he lay on top of her. She struggled and kicked at him, eventually managing to escape through a bedroom window.

8 In sentencing the applicant, the trial Judge had the benefit of a pre-sentence report and the report of a psychologist. The pre-sentence report records that the applicant appeared vague and unwilling to comment with respect to his offending, saying that he was extremely drunk and could not remember. He appears to have minimised his involvement. He is described as an "emotionally flat" man, lacking in appropriate insight and responsibility for his offences.

9 The two reports disclose that the applicant comes from a troubled background, with his parents having separated when he was a child. Each of them remarried and he was brought up by his paternal grandmother in his home country of El Salvador. He emigrated to Australia in 1992. He and his wife, who he married at age 23, have separated and reconciled on more than one occasion since migrating to Australia. The psychologist's report suggests that the applicant continues to take little responsibility for his actions and appears to have minimal insight, at present, into the causes and consequences of his offending behaviour, although he has expressed a willingness to undergo further treatment. The clinical impression formed by the psychologist is that his significant minimisation of responsibility for his offending, his use of cognitive distortions and his use of alcohol in terms of marital problems would indicate that there is some risk of re-offending.

10 The applicant has no criminal record of any significance. The sentencing Judge, in sentencing the applicant, considered the pre-sentence report, the psychologist's report and the applicant's good prior record. He also accepted that there was a clear recognition of contrition by the applicant's very early plea of guilty, his co-operation with the police and his admission of his offending behaviour.

11 His Honour then said that he believed that an appropriate starting point for the aggregate of the penalty that he intended to impose upon the applicant was one of 15 years' imprisonment, but that he had determined to reduce that to take account of the early plea of guilty and the other factors to which I have referred. He then imposed the sentences mentioned above.

12 The applicant, who was unrepresented before us, has effectively declared himself unable to make any submissions in support of his appeal other than to say that the total sentence is too severe.

13 There is no doubt that these sentences are severe, when regard is had to the early plea of guilty and to the applicant's favourable antecedents. However, so far as the favourable antecedents are concerned, sexual assault by an adult upon a young child within a family environment is very serious indeed. The law demands the protection of young children from offending of this kind, with the result that the dominant sentencing considerations will be punishment and general and personal deterrence.

14 In Woods v The Queen (1994) 14 WAR 341 Anderson J, at 354 to 357, mentioned a number of cases of sexual assaults by persons in a position of trust in which very heavy penalties have been upheld. While each case necessarily turns upon its own facts and circumstances, there is nothing in the cases there referred to or in subsequent decisions of this Court which would lead me to conclude that any of the sentences imposed in this case, or the total period of 12 years' imprisonment imposed upon the applicant, is so severe as to be outside the range of an acceptable exercise of discretion. I would consequently refuse the application for leave to appeal.

15 MILLER J: I agree with the reasons delivered by Steytler J. I have nothing to add.

Merino v The Queen [2003] WASCA 18

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Merino v The Queen [2003] WASCA 18 (17 February 2003)

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