NE -v- THE STATE OF WESTERN AUSTRALIA [2021] WASCA 172 (17 September 2021)

4 As an adult, the victim reported the sexual abuse which she had suffered as a child. The appellant was charged with 12 representative counts. He entered early pleas of guilty (although not at the first reasonable opportunity) to six counts of indecent dealing with a child under the age of 13 years, five counts of sexually penetrating a child under the age of 13 years and one count of procuring a child under the age of 13 years to do an indecent act.

5 It was inevitable that the appellant would be sentenced to a term of immediate imprisonment given the seriousness of his offending against the victim. While he is in custody, the prison authorities can properly care for the appellant. But the appellant's tetraplegia makes imprisonment significantly more onerous and punitive for him than for other prisoners.

6 The question raised by this appeal against sentence concerns how the law should respond to this situation which, as far as we can tell, is without precedent in this State. The sentencing judge imposed a total effective sentence of 8 years 3 months' imprisonment, with eligibility for parole. On appeal, senior counsel for the appellant contends that this sentence is unreasonable or plainly unjust, infringing the first limb of the totality principle.

7 For the following reasons, the sentence imposed by the sentencing judge bore a proper relationship to the overall criminality involved in all of the offences, viewed in their entirety and having regard to all of the circumstances of the case including those personal to the appellant. The total effective sentence was not unreasonable or plainly unjust. While we would grant leave to appeal, the appeal should be dismissed.

8 The particular offences of which the appellant was convicted, and the sentences imposed for those offences, are set out in the following table:

Indecent dealing with a child under 13 years by playing pornography in her presence (s 320(4))

Indecent dealing with a child under 13 years by touching her vagina with his hand (s 320(4))

Indecent dealing with a child under 13 years by playing pornography in her presence (s 320(4))

Sexually penetrated a child under 13 years by engaging in cunnilingus (s 320(2))

Sexually penetrated a child under 13 years by engaging in cunnilingus (s 320(2))

Procured a child under 13 years to do an indecent act, namely placing a vibrator on her vagina (s 320(5))

Sexually penetrated a child under 13 years by introducing his penis into her mouth (s 320(2))

Sexually penetrated a child under 13 years by engaging in cunnilingus (s 320(2))

Indecent dealing with a child under 13 years by permitting her to masturbate his penis (s 320(4))

Indecent dealing with a child under 13 years by touching her vagina with his hand (s 320(4))

Sexually penetrated a child under 13 years by penetrating her vagina with his penis (s 320(2))

Indecent dealing with a child under 13 years by touching her vagina with his hand (s 320(4))

9 The sentencing judge made the following findings as to the circumstances of the offending.[1]

10 At the time of committing counts 1 - 8, the appellant was in a relationship with the victim's mother.

11 The offending charged in counts 1 and 2 occurred on the same unknown date sometime between 28 July 1993 and 29 July 1995, when the victim was about six to seven years old and the appellant was about 27 years old. They were at home in the lounge room. The appellant asked the victim to lock the doors and the windows to the house because the other members of the household, including her mother, were out. The appellant asked the victim to choose a pornographic video and put it on television to watch. The victim complied (count 1).

12 The appellant then told the victim to lay down on the lounge in the lounge room and take her underwear off. As the pornographic video was played on the TV, she did that, and laid on her back on the lounge exposing her vagina as the appellant sat next to her in his wheelchair. The appellant asked if he could rest his hand on the victim's vagina and she said he could. The appellant put his hand on the victim's vagina whilst the pornography was still playing on the television (count 2).

Counts 3 - 4: indecent dealing and sexual penetration

13 The offending charged in counts 3 and 4 occurred on the same unknown date in 1995, when the victim was about 7 years old and the appellant was still 27 years old. The appellant was home alone with the victim. He asked the victim to put on a pornographic video and she complied (count 3).

14 The video depicted a man performing cunnilingus on a woman. The appellant asked if he could do that to the victim. The appellant told the victim to lay down on the kitchen bench, and she did so. The appellant told the victim to take her underwear off, and she complied. At the appellant's instruction, the victim hung her legs over the edge of the bench. The appellant then moved his wheelchair alongside the bench and performed cunnilingus on the victim (count 4).

15 Count 5 occurred sometime in 1996, when the victim was 8 years of age. The victim was sleeping in the appellant's bed when her mother was not home. The appellant asked the victim to sit on his face while he was lying on his back in the bed. The victim complied and she put her vagina over the appellant's face. He performed cunnilingus on the victim.

16 Sometime in 1996, when the victim was still 8 years old, the appellant was in the bedroom with the victim. The appellant told the victim to pull out a vibrator, put it on her elbow and turn it on. The victim complied and the appellant asked her what it felt like. The appellant then asked the victim to put the vibrator on the outside of her vagina, which she did.

17 Sometime in 1996, when the victim was still 8 years old, the appellant was alone with the victim in his bed while her mother was out. The appellant asked the victim to look at his erection and touch his penis with her hands. The appellant then asked the victim to kiss his penis with her lips and put his penis in her mouth. She complied (count 7).

18 The appellant then told the victim to stop and sit on his face. She again complied. When the victim was sitting on his face, the appellant performed cunnilingus on her (count 8).

19 The offending the subject of counts 9 and 10 occurred in 1999 when the victim was 11 years old and the appellant was between 31 - 32 years old. The appellant and the victim's mother had ended their relationship, and the mother had moved out of the appellant's house to a nearby residence. After a few weeks, the victim came back to live with the appellant due to the negative environment that existed in her mother's house.

20 On the occasion of this offending, the victim was sleeping on a mattress in the appellant's room. The appellant woke her up and asked her to come on the bed next to him. The appellant asked the victim to masturbate his penis by moving her hand up and down, which she did (count 9). While the victim did this, the appellant rested his hand on her vagina (count 10) but did not ejaculate.

21 The offending charged in count 11 occurred at the appellant's home in 1999, when the victim was 11 years old. The appellant's disability required him to wear a condom, that had to be changed regularly as part of his care, to hold the tubes of his urinary bag in place. The appellant asked the victim to remove the condom, which she did.

22 The appellant then asked the victim to sit on his penis. He was lying on his back at the time. The victim was naked at the time and she moved over on top of the appellant. She put the appellant's penis into her vagina (count 11). The appellant told the victim to put his penis as far as she could without it hurting her, and to stop if it hurt too much.

23 The offending charged in count 12 occurred sometime in 1999, also when the victim was 11 years old, and the appellant was 31 - 32 years old. A friend of the victim came to the appellant's house with the victim. The victim's friend was asked and encouraged to change the appellant's medical condom while the victim instructed her on how to do it. The appellant's penis needed to be erect for the condom to be removed. The victim told her friend how to do that to the appellant's penis. The victim and her friend then got some hair scrunchies and started putting them on the appellant's penis and playing with his penis like it was a toy. The appellant's penis became erect.

24 The counts on the indictment were representative in character. The victim recalls the appellant performing cunnilingus on her on a weekly basis from the time she was 6 - 11 years of age. The victim also recalled the appellant resting his hand on her vagina as she masturbated his penis several times a week after she came back to live with the appellant after he and her mother had separated.

25 The victim provided a victim impact statement which described the devastating effect which the sexual abuse by the appellant has on her life. She describes periods of homelessness, being a target of domestic violence, and turning to substance abuse to try and cope with the psychological trauma of the appellant's offending.

26 The victim described how her relationship with her own children has been marred by several severe attachment issues. She says that she has avoided trying to get close to people for fear of flashbacks and intrusive thoughts. The victim described living in a 'hellscape' that only she can see.

27 The sentencing judge described the appellant's offending as being 'all encompassing' in the victim's life and that it has 'in many respects caused significant waves of damage that will last forever for her'.[2]

28 The sentencing judge made the following findings as to the appellant's personal circumstances.

29 The appellant was 53 years old at the date of sentencing, and about 26 - 32 years old at the time of the offending. He was single as at the date of sentencing.

30 The appellant was born in Bunbury and had two siblings. His mother died in an accident when she was electrocuted at home when he was about five years old. The appellant has not had any meaningful relationship with his father since his mother's death. After his mother died, the appellant and his siblings lived with various family members. He spent a portion of his childhood living in children's homes and with foster families.

31 When the appellant was 18 years old, he was in a serious car accident when a car being driven by his employer crashed and resulted in a C4/5 spinal cord injury that rendered him a tetraplegic. As a result, the appellant receives between about 16 - 18 hours of care a day, which at the time of sentencing was supported by the NDIS. The appellant's condition is worsening as a result of degeneration in his physical condition. While the degeneration was being managed conservatively at the date of sentence, the sentencing judge said the medical reports indicated surgical intervention would ultimately be required.

32 The appellant had two sons with the victim's mother, who were aged 21 and 15 years at the date of sentencing. While the appellant remained in contact with one of his children, he had not seen the other son since the offending came to light, and had not seen his grandchildren. With the assistance of nannies and carers, the appellant was the primary carer for his children during their childhood.

33 The appellant had used drugs when he was younger and had some drug convictions, but the sentencing judge regarded these as being of limited relevance to the sentencing exercise. The judge accepted that the appellant had no significant criminal history and, apart from the sexual offending, was largely of good character.

34 The sentencing judge recognised that the seriousness of the appellant's offending is reflected in part by the applicable statutory maximum penalties, which are:

(1) 20 years' imprisonment for sexual penetration of a child under 13 years of age;

(2) 10 years' imprisonment for indecent dealing with a child under 13 years of age; and

(3) 10 years' imprisonment for procuring a child under 13 years of age to do an indecent act.

35 The sentencing judge identified the following aggravating features of the appellant's offending:

(1) The appellant's conduct involved a gross breach of trust placed in him as the victim's stepfather and the person the victim's mother trusted with the victim's care.

(2) The offending in respect of count 12 involved another child, being the victim's friend.

(3) The appellant manipulated the young victim by grooming her and subjecting her to a high level of psychological coercion. The emotional control which the appellant had over the victim meant that he had no need to threaten the victim. The fact that, given the appellant's medical condition, the victim had to be an active physical participant in her own abuse would increase the impact of the offending on the victim when she reflected on the abuse.

(4) The offending occurred over a period of six years and was repetitive, sustained and persistent conduct on the appellant's part.

(5) The victim was particularly vulnerable given her age at the time of the offending and the absence of a strong healthy relationship between the victim and her mother.

(6) There was a large age disparity between the victim and the appellant.

36 The sentencing judge identified the following mitigating factors:

(1) The appellant entered pleas of guilty at an early stage, although not at the first reasonable opportunity, for which the sentencing judge allowed a discount of 20% under s 9AA of the Sentencing Act 1995 (WA).

(2) The appellant had only a minor prior criminal record.

(3) The appellant was remorseful for his conduct, accepted responsibility for it and had some insight into why he offended (which was the adrenalin rush or excitement created by the offending).

(4) The appellant was at negligible risk of reoffending given he was unlikely to have contact with children in the future, the disclosure of his past offending, his remaining out of dysfunctional intimate relationships and his deteriorating physical health.

37 The sentencing judge identified the appellant's physical health as the most significant mitigating factor to be considered. The sentencing judge noted the careful and considered planning for the management of the appellant's tetraplegia which prison authorities had put in place. Her Honour could not conclude that the appellant's physical health was going to deteriorate as a result of being in custody, although it would continue to deteriorate simply as a result of his medical condition.

38 However, the sentencing judge accepted that prison would be more onerous for the appellant, who would not be able to engage in education, employment, or social activities. Her Honour said:[3]

So I do take into account that you're going to be able to have limited opportunities to engage in those types of activities and that you're going to be confined, it seems, largely to the infirmary, which no doubt will be a very bleak part of the prison to spend your sentence in.

But nonetheless, I must be mindful of the fact that your health and the fact that prison will be more onerous cannot overwhelm the need to impose a sentence which is proportionate to the significance of the offending that you have engaged in.

So I will reduce the sentence that I intend to impose or would have otherwise imposed, had you not been a tetraplegic at the time that I am sentencing you.

39 After noting (as was conceded by the appellant's sentencing counsel) that the seriousness of the offending was such that a term of immediate imprisonment was the only appropriate sentencing option, the judge imposed the sentences noted in the table at [8] above. The appellant was made eligible for parole.

40 The appellant appeals against sentence on the sole ground that:

The length of the aggregate sentence that was imposed on the appellant does not bear a proper relationship to the overall criminality involved in all of the offences, having regard to circumstances in which those offences were committed and factors personal to the appellant.

41 As such, the ground contends that the total effective sentence of 8 years 3 months' imprisonment infringes the first limb of the totality principle.

42 The appellant refers to reviews of the sentencing standards for serious cases of child sexual offending undertaken by this court in cases such as VIM v The State of Western Australia,[4] The State of Western Australia v Prince,[5] JJR v The State of Western Australia,[6] MHE v The State of Western Australia,[7] and UGN v The State of Western Australia.[8] The appellant acknowledges that his total effective sentence falls within the broad range of sentences identified in these reviews. However, the appellant points out that none of the specific cases identified in those reviews dealt with an offender with the appellant's unique personal circumstances.

43 While acknowledging the seriousness of the appellant's offending, senior counsel for the appellant submits:

It is self-evident that the appellant's personal circumstances were unique, when compared to other broadly similar cases. While it is accepted that the appellant's ill-health was only one of the factors that had to be taken into account in determining the appropriate sentence, and that it is important to maintain an appropriate balance between the criminality of offending behaviour and any question of ill-health, the plain fact remains that the appellant faces an extremely bleak prospect of having to serve a sentence of 8 years and 3 months imprisonment as a tetraplegic in a prison infirmary.

Although the evidence before the sentencing Judge was to the effect that the appellant would be adequately cared for whilst in custody, and this was not challenged by the appellant, it is submitted that it is difficult to imagine a more onerous set of circumstances than those faced by the appellant.

Having regard to all of the above matters the appellant submits that the aggregate sentence of 8 years and 3 months imprisonment did not bear a proper relationship to the overall criminality of the appellant's conduct, having regard to all relevant circumstances including those referable to the appellant personally.

44 The respondent submits that the various aggravating features of the appellant's offending place it towards the higher end of the scale of seriousness of offending of this type. Accepting that his tetraplegia will make prison more onerous on the appellant, the respondent points to the following observations of King CJ (Cox and O'Loughlin JJ agreeing) in R v Smith:[9]

The state of health of an offender is always relevant to the consideration of the appropriate sentence for the offender. The courts, however, must be cautious as to the influence which they allow this factor to have upon the sentencing process. Ill health cannot be allowed to become a licence to commit crime, nor can offenders generally expect to escape punishment because of the condition of their health. It is the responsibility of the Correctional Services authorities to provide appropriate care and treatment for sick prisoners. Generally speaking ill health will be a factor tending to mitigate punishment only when it appears that imprisonment will be a greater burden on the offender by reason of his state of health or when there is a serious risk of imprisonment having a gravely adverse effect on the offender's health.

45 These observations were applied in Colwell v The State of Western Australia [No 2].[10] In Colwell, the court noted that an offender's medical condition is only one of the factors to be taken into account in determining the appropriate sentence. The court also noted that an appropriate balance has to be kept between the criminality in question and any health considerations.

46 The respondent notes the advice received by the sentencing judge from the Department of Justice indicating how the appellant's needs would be met in prison, including that:

Corrective Services acknowledges [the appellant's] need for meaningful activity, psychological stimulation and social engagement and will facilitate this as appropriate. Upon his reception into custody his recreational, program and educational needs will be assessed as part of his individual management and holistic care plan.

47 The respondent accepts that, if the appellant is to spend most of his time in his room in the prison infirmary, this will be more burdensome for him than for others in the general prison population. However, the respondent says that it must be borne in mind that the appellant's disability already severely burdened his activities even when not in prison. The respondent submits that to merely compare what the appellant can do in prison with what other prisoners in the general prison population can do would inadequately address the more significant question of what additional burden the appellant would face as a direct result of his incarceration, that other prisoners would not face.

48 The respondent submits that the sentencing judge correctly recognised that, despite the burden faced by the appellant, the sentence had to adequately reflect, not only the mitigating factors, but also the seriousness of the offending, the aggravating factors, and the need for deterrence, punishment and the protection of the community. The respondent submits that the total effective sentence of 8 years 3 months' imprisonment properly reflected the appellant's overall criminality in its entirety, having regard to all the circumstances including those personal to him.

49 McLure JA (Steytler P and Miller JA agreeing) summarised the totality principle in Roffey v The State of Western Australia:[11]

The legal principles relevant to the disposition of this appeal are not in dispute. An appellate court is not entitled to intervene merely because it would have exercised the sentencing discretion in a manner different than the sentencing judge. It can only intervene if the sentencing judge has made an express or implied material error of fact or law.

The appellant relies on the totality principle which comprises two limbs. The first limb is that the total effective sentence 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 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.

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. Where the principle of totality comes into effect, it is of little importance how the ultimate aggregate is made up. (citations omitted)

50 The following general principles are also well established:[12]

(1) Sentencing is a discretionary exercise. An appellate court can intervene only if the appellant demonstrates either an express or implied material error. Express error involves acting on a wrong principle, for example by mistaking the law or facts or taking into account an irrelevant matter. 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 a sentencing discretion differently.

(2) The range of sentences customarily imposed for a crime 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 is the unifying principles which sentences imposed in comparable cases reveal and reflect.

(3) 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.

(4) The real question is whether the total effective sentence imposed on the offender is unreasonable or plainly unjust.

51 This was a difficult sentencing exercise given the combination of the appellant's severe physical disability on the one hand, and the very serious nature of his offending on the other. As senior counsel for the appellant submitted, different sentencing considerations pull in different directions. In sentencing the appellant, it was necessary to balance significant aggravating and mitigating factors.[13]

52 We have no doubt that the appellant's imprisonment for a lengthy period will make an already tremendously difficult life even more difficult for him. The impact of imprisonment on the appellant will be very much greater than the impact on other prisoners. As the sentencing judge observed, the prison infirmary seems a bleak place for serving the whole of a lengthy sentence of imprisonment. We are satisfied that, for the appellant, imprisonment presents a dismal existence and that service of a term of immediate imprisonment will be very much more difficult for him than for ordinary prisoners.

53 Because of the appellant's disability, the punitive effect of imprisonment will be greater for him than it is for most prisoners. The impact of the loss of freedom inherent in imprisonment is increased by the fact that it takes away from the appellant the limited vestiges of freedom left to him by his physical disability. As a result, the punitive effect of the appellant's confinement in prison and his subjection to a daily regimen dictated by the needs of the institution is magnified. The length of the term of immediate imprisonment which is required to meet the sentencing considerations of punishment and retribution is correspondingly reduced.

54 There are other factors which operate to mitigate the sentence which would otherwise be commensurate with the seriousness of the appellant's offending. The appellant's risk of reoffending is very low, reducing the significance of personal deterrence as a sentencing consideration. The uniqueness of this case may also mean that general deterrence, while still relevant, is of lesser significance in the case of the appellant's offending. The appellant also entered an early plea of guilty, for which he was rightly given a discount of 20% under s 9AA of the Sentencing Act. He was also found to be remorseful and to have accepted responsibility for his offending.

55 The mitigating factors identified above, particularly the greater punitive impact of imprisonment on a person with the appellant's physical disability, demanded a significant reduction of the sentence which would otherwise be commensurate with the seriousness of the appellant's offending.

56 There are, obviously, no directly comparable cases to the present in the previous sentencing decisions of this court. The authorities referred to by the appellant indicate customary sentencing standards for the most serious kinds of child sexual offending. However, none of those cases involved the sentencing of an offender with the degree of physical disability suffered by the appellant. The parties referred to this court's decision in Ashley v The State of Western Australia,[14] where the court sentenced an offender whose offending left him a paraplegic. In that case, the court reduced the original total effective sentence of 6 years' imprisonment, which this court would otherwise have regarded as an appropriate sentence,[15] to 4 years 6 months' immediate imprisonment to take account of the offender's paraplegia. However, the offending in Ashley was of a very different character to the present. Further, a relevant factor in Ashley was that the injury sustained by the offender while committing the offences should be regarded as some punishment of the offences.[16] By contrast, in the present case the appellant was a tetraplegic when he chose to commit the offences, and was in a position to appreciate the consequences for him if he was convicted of them.

57 The appellant's tetraplegia did not give him a license to engage in a course of very serious child sexual offending without appropriate punishment. The sentence to be imposed on the appellant must reflect the criminality involved in, and impose appropriate punishment for, the appellant's abhorrent conduct and its grave impact on the victim. We accept counsel for the respondent's submission that the seriousness of the offending was such that it would warrant a sentence of more than 10 years if the appellant did not suffer from his debilitating physical condition, even with an early plea of guilty.[17]

58 In reaching that conclusion, we are conscious of the observation of Quinlan CJ and Mitchell JA in The State of Western Australia v AHD that:[18]

The review of previous decisions in MHE shows that total effective sentences in excess of 10 years' imprisonment are relatively uncommon in cases involving a single victim in circumstances where the offender has pleaded guilty at an early stage of the proceedings.[19]

59 However, in the present case there are a number of features of the appellant's offending which, even in light of his early plea of guilty, would ordinarily make a sentence in excess of 10 years appropriate. These include the very young age of the victim, who was only about 6 years old when the abuse began, the persistence and nature of the offending, and the devastating effect which the offending had on the victim. The victim was also in a particularly vulnerable position, even after the appellant and the victim's mother separated. The appellant told the clinical psychologist who prepared a report for the sentencing judge that, at this time, the victim's mother was abusing methylamphetamine and alcohol, associating with bikers and working as a receptionist in a brothel. He acknowledged that, after the separation, the victim's only options were to live with a drug-using mother or a sexually abusive stepfather. In our view, the aggravating features of the offending which the sentencing judge identified placed the offending in this case at the higher end of the range of seriousness of sexual offending against a single child complainant.

60 It is clear that the sentencing judge did substantially reduce the sentence which she would otherwise have imposed, and which would otherwise have been appropriate, to account for the greater impact of imprisonment on the appellant by reason of his tetraplegia. We are not persuaded that the sentencing judge erred in balancing the mitigating and aggravating factors in this case. To the contrary, in our view, the total effective sentence of 8 years 3 months' imprisonment which the sentencing judge imposed properly reflected the overall criminality involved in all of the appellant's offences viewed in their entirety, having regard to all of the circumstances of the case including those personal to the appellant. The sentence was not unreasonable or plainly unjust. It follows that error cannot be inferred from the outcome of the exercise of the judge's sentencing discretion.

61 For the above reasons, we make the following orders in the appeal:

(1) Leave to appeal is granted on the sole ground of appeal.

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

[4] VIM v The State of Western Australia [2005] WASCA 233.

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

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

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

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

[9] R v Smith (1987) 44 SASR 587, 589.

[10] Colwell v The State of Western Australia [No 2] [2012] WASCA 196 [67] - [68].

[11] Roffey v The State of Western Australia [2007] WASCA 246 [23] - [26].

[12] See, for example, Kabambi v The State of Western Australia [2019] WASCA 44 [21].

[14] Ashley v The State of Western Australia [2017] WASCA 131.

[18] The State of Western Australia v AHD [2021] WASCA 13 [4].