Criminal law and procedure - Application for leave to appeal against sentence - One transaction rule - Totality - Turns on own facts

Sentencing Legislation Amendment and Repeal Act 2003 (WA)

B v The Queen [2002] WASCA 236

Boudville v The Queen [2001] WASCA 133

Chinnery v The Queen [2000] WASCA 295

Dauphin v The Queen [2002] WASCA 104

Dempsey v The Queen, unreported; CCA SCt of WA; Library No 960059; 9 February 1996

Jarvis v The Queen (1993) 20 WAR 201

Johnston v R, unreported; CCA SCt of WA; Library No 960153; 22 March 1996

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

R v Chilvers [2003] WASCA 87

R v GP (1997) 18 WAR 196

R v Hough [2002] WASCA 42

1 MALCOLM CJ: In my opinion, this application for leave to appeal should be dismissed for the reasons to be published by McLure J with which I agree.

2 MURRAY J: I agree with McLure J, for the reasons given by her Honour, that leave to appeal should be refused.

3 MCLURE J: The applicant applies for leave to appeal against sentence. He was convicted after trial in the District Court of three counts of sexual penetration of a child under the age of 16 years and five counts of indecent dealing with a child under the age of 14 years. The eight counts relate to four separate incidents that occurred between October 1986 and October 1987.

4 On 12 June 2003 the learned sentencing Judge sentenced the applicant to 5 years' imprisonment on each count of sexual penetration (counts 1, 3 and 5) and 3 years' imprisonment on each count of indecent dealing (counts 2, 4, 6, 7 and 8). The Judge ordered that counts 1 and 2 (5 years and 3 years respectively) be served cumulatively and that all other sentences be served concurrently making an effective head sentence of 8 years' imprisonment. The applicant was sentenced under the regime applying before the commencement of the Sentencing Legislation Amendment and Repeal Act 2003 (WA). The applicant was made eligible for parole.

5 The complainant, the subject of each of the counts, is the applicant's grandson. The maximum penalty applicable to the counts of sexual penetration was 20 years. Each of these offences consisted of the placing of the applicant's penis in the mouth of the complainant, who was aged between 5 and 6 years at the time. Four of the counts of indecent dealing related to the applicant lying on top of the complainant and placing his penis between the cheeks of the complainant's bottom. One count of indecent dealing related to the applicant pulling the complainant's penis.

6 The applicant was in his early fifties when he committed the offences. He was 67 at the time of trial. He committed the offences when the complainant was left in his care by the applicant's daughter. At the time the offences occurred the applicant had no prior record although in February 1988 he was convicted on a plea of guilty of four counts of indecent dealing relating to the complainant's older sister.

7 The applicant does not challenge the individual sentences imposed for each offence. He contends firstly that the effective head sentence of

8 years is manifestly excessive or, which is in substance the same point, is disproportionate to the total criminality of the conduct as a whole and secondly that the trial Judge erred in not making all of the sentences concurrent.

8 It is convenient to start with the second ground. After stating the sentences for each offence the sentencing Judge continued:

"I have considered the total sentence that I have imposed on each count and the need to ensure that the total sentence reflects the totality of your criminality and to ensure that the sentence is not crushing. Although counts 1 and 2 occurred on the same occasion, they were distinct criminal acts. I order that counts 1 and 2 be served cumulatively and that all other sentences be served concurrently."

9 The applicant contends that all of the convictions constituted a continuing course of conduct and as such should have been made concurrent. In the alternative, the applicant contends that the trial Judge erred in making the sentences on counts 1 and 2 cumulative when they occurred on the same occasion. In the ordinary course of sentencing for multiple offences, the court will firstly determine the appropriate sentence for each offence, secondly assess whether the sentences should be made concurrent or cumulative in accordance with established principle and finally review the aggregate sentence by reference to principles of totality, including whether the total sentence is crushing. Considerations of totality can result in the total length of the aggregate term being increased or decreased: R v White [2002] WASCA 112.

10 I understand the applicant's submission to be that the "one transaction" or "continuing episode" rule applies. This Court recently considered that rule in R v Faithfull [2004] WASCA 39. It is unnecessary to refer at length to what was said in that case. Suffice to say that it is a general rule that when a number of offences arise out of the one transaction or continuing episode, any terms of imprisonment are to be made concurrent. However, a sentencing Judge must go on to consider whether the application of that general rule would result in an appropriate measure of the total criminality involved in the conduct. If not, then the appropriate aggregate result should be achieved, if practicable, by making the sentences partially or wholly cumulative: Mill v The Queen (1988) 166 CLR 59; Pearce v The Queen (1998) 194 CLR 610; R v Faithfull (supra).

11 The conduct on each separate occasion (that is, the conduct the subject of counts 1 and 2; 3 and 4; 5 and 6; and 7 and 8) were closely connected in nature, time and circumstance and prima facie, the one transaction rule applies. Although all of the offences committed on each of the four separate occasions were similar in nature and committed on the same complainant, I do not accept that those considerations themselves justify the separate incidents as being characterised as part of one transaction or a continuing episode. However, those circumstances are relevant to assessing the total criminality of the conduct. It was in the context of considering totality that the sentencing Judge concluded that the appropriate course was to make the sentences for one count of sexual penetration and one count of indecent dealing cumulative.

12 As observed by Street CJ in R v Holder and Johnston (1983) 13 A Crim R 375 at 389, where the principle of totality comes into effect it is of little importance how the ultimate aggregate is made up. As the focus of the trial Judge was on totality, it is of no consequence that he accumulated the sentence on count 1 with the sentence of 3 years on count 2 rather than with the 3 years imposed for any of the other four indecent dealing counts. The central question in this appeal is whether the head sentence of 8 years offends the totality principle.

13 That principle requires the total sentence imposed on an offender to bear a proper relationship to the overall criminality involved in the various offences, viewed in their entirety and having regard to the circumstances of the case, including those referable to the offender personally: Woods v The Queen (1994) 14 WAR 341 at 352 per Anderson J. The issue is whether the total sentence of 8 years is too long notwithstanding that the individual sentences when considered separately are appropriate.

14 Cases of intra-familial sexual abuse typically attract significant sentences of imprisonment. Sexual offences involving a young child are of the utmost seriousness, particularly where an abuse of trust is involved. General deterrence is a dominant sentencing consideration having regard to the need to protect vulnerable children: Woods v The Queen (supra); R v Leggett [2000] WASCA 327; Bosworth v The Queen [2004] WASCA 43; Bishop v The Queen [2003] WASCA 79.

15 The applicant's conduct involved a gross breach of trust on a young child in his care. There is little if anything to suggest the applicant is remorseful. Although his previous good record is a relevant consideration, it is not given significant weight in cases of this type because of the emphasis on general deterrence and the protection of children: Bell v The Queen [2001] WASCA 40. It is not suggested that the trial Judge failed to have regard, or give appropriate weight, to any relevant factor.

16 In my view the total criminality of all of the conduct would not be adequately reflected by making all the sentences concurrent with the sentence for one count of sexual penetration. The only live issue is whether the Judge ought to have made the sentences of 5 years and 3 years partially cumulative. It is not sufficient for the applicant to demonstrate that this course was open to the sentencing Judge. The applicant must go further and establish that the Judge made an error in making them wholly cumulative.

17 Measured against the application of the totality principle, the applicant has not shown that the Judge erred in the exercise of his sentencing discretion in making the sentences of 5 years and 3 years wholly cumulative. In my opinion, the application for leave to appeal should be dismissed.