R v Griffiths [1999] WASCA 23

Appellant : Acting State Director of Public Prosecutions

Bowdidge v The Queen, unreported; CCA SCt of WA; Library No 920191; 3 April 1992

Coulter v The Queen, unreported; CCA SCt of WA; Library No 960507; 4 September 1996

Dao v The Queen, unreported; CCA SCt of WA; Library No 990015; 22 January 1999

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

Jarvis v The Queen, unreported; CCA SCt of WA; Library No 930341; 14 June 1993

Miles v The Queen (1997) 17 WAR 518

Mill v The Queen (1988) 166 CLR 59

Pearce v The Queen [1998] HCA 57; (1998) 72 ALJR 1416

R v Dinsdale, unreported; CCA SCt of WA; Library No 990021; 2 February 1999

R v Estreich, unreported; CCA SCt of WA; Library No 950500; 2 August 1995

R v Grein [1989] WAR 178

R v Pinder (1992) 8 WAR 19

R v Podirsky (1989) 43 A Crim R 404

R v Ruane (1979) 1 A Crim R 284

R v Shaw (1989) 39 A Crim R 343

R v Tait (1979) 46 FLR 386

Smedley v The Queen, unreported; CCA SCt of WA; Library No 990146; 23 March 1999

Wong v The Queen, unreported; CCA SCt of WA; Library No 980218; 2 April 1998

Woods v The Queen (1994) 14 WAR 341

1 KENNEDY J: I have had the benefit of reading in draft the reasons to be published by Ipp J. I am in agreement with those reasons and with the orders which his Honour proposes. In my opinion, the total criminality involved in the 15 offences against six victims clearly required a more substantial sentence than 4 years' imprisonment.

2 IPP J: The fundamental point in this Crown appeal against sentence is that, in sentencing the respondent, the learned sentencing Judge assumed that there were only two counts of sexual penetration amongst the fifteen counts to which the respondent had pleaded guilty (and in respect of which she was required to sentence him), whereas, in fact, there were three such counts. This error led her Honour to underestimate the total criminality of the respondent's conduct in committing the fifteen counts.

3 Each of the fifteen counts contained a sexual element. The fifteen counts comprised three counts of digital penetration of the vagina, one count of attempted digital penetration, 10 counts of unlawful and indecent assault and one count of indecent dealing. There were six complainants in regard to the 15 counts. Three different complainants were the subject of the three counts of digital penetration.

4 The first count involved a female child under the age of 13 years. The remaining 14 counts involved young women aged between 16 and 18 years. The applicant was aged 37 years when he committed these offences. He was the manager of a swimming pool in a small country town. He met five of the six complainants at the swimming pool and committed most of the offences while the young women were at the swimming pool. The applicant had some expertise as a masseur and, it was put by the learned sentencing Judge, this expertise "appears to have been part of the way that you inveigled yourself or preyed upon these girls".

5 Towards the commencement of her sentencing remarks the learned sentencing Judge said:

"The nature of the offences involves a number of charges of unlawful and indecent assault extending on some occasions and with two of the complaints, the victims in this case, to penetration of their vagina with your fingers."

In fact, as I have stated, there were three counts of digital penetration of the vagina, involving three different complainants.

6 Her Honour concluded her sentencing remarks as follows:

"Could you stand up please, Mr Griffiths. You will be sentenced to a total head term of 4 years' imprisonment for these offences and it will be structured in the following way: in relation to count number 6 and count number 11 there will be terms of 2 years' imprisonment which will be cumulative with one another, they constituting the most serious offences in the indictment; in relation to the balance of the charges from 2 through to 15, there will be terms of 18 months' imprisonment with respect to each charge, concurrent with one another and concurrent with those other two terms of 2 years; in respect to charge number 1, there will be a term of 12 months' imprisonment also concurrent with the other terms."

Her Honour made an order for eligibility for parole.

7 The "total head term of 4 years' imprisonment" was imposed after the learned Judge had earlier stated that "the Court cannot avoid the fact that the totality principle here is, I think, a strong one".

8 The third count of digital penetration was count 15. Her Honour imposed a sentence of 2 years' imprisonment for each of the two counts of digital penetration which she took into account, and made these cumulative upon each other. Count 15 (which her Honour apparently did not appreciate was a count of digital penetration) attracted a sentence of 18 months' imprisonment which was ordered to be concurrent with all the other counts. Counsel for the respondent properly conceded that the learned Judge was mistaken in believing that there were only two counts of digital penetration.

9 This mistake on the part of the learned Judge led her to underestimate the overall criminality of the respondent's conduct. It was a fundamental error in the sentencing process and this Court is required to sentence the respondent afresh.

10 A number of mitigatory factors have to be taken into account. The respondent pleaded guilty at the first available opportunity. A pre-sentence report indicated that he was genuinely remorseful for his conduct. He was, in effect, a first offender. While in prison he had embarked on a sexual offender's course and, at the time of the pre-sentence report, he had successfully completed more than half of it. Direct physical force was not involved in the commission of any of the offences. There was evidence before the learned sentencing Judge that the respondent was of good standing in the community. The offending has had a serious effect on the respondent and his family in the small rural community in which they live.

11 It is to be noted that senior counsel for the Crown did not submit that any period of imprisonment, apart from those relating to digital penetration, should be ordered to be cumulative.

12 In all the circumstances, and taking into account that this is a Crown appeal, I consider that an overall term of 6 years' imprisonment should be imposed upon the respondent. I would structure the sentencing in the following way. For each of the counts of digital penetration (counts 6, 11 and 15) the respondent should be required to serve a term of 2 years' imprisonment. Each such term should be cumulative upon the other. The aggregate term of imprisonment so imposed will therefore be 6 years. For each of the remaining 12 offences the respondent will be sentenced to a term of 18 months' imprisonment, each such term to be concurrent with all the other terms imposed. The order for eligibility for parole will remain.

13 Accordingly, I would uphold the appeal, set aside the sentences imposed by the learned sentencing Judge and substitute the sentences that I have set out above.

14 WALLWORK J: I agree with the reasons for judgment of Ipp J and to the order proposed by his Honour.