R v Richards [1999] WASCA 105

Sentencing - Mitigation - Depressive illness and prior good character outweighed by premeditation and grossness of offences - Illness only mitigatory to extent it contributed to commission of offence - Fast track and remorse - Total sentence of 12 years imprisonment appropriate.

R v Tsiaris [1996] VicRp 26; [1996] 1 VR 398, distinguished.

Pearce v Q [1998] HCA 57; (1998) 72 ALJR 1416, considered.

Symonds v Q, unreported; CCA SCt of WA; Library No 980616; 28 October 1998, applied.

Appellant : Acting State Director of Public Prosecutions

1 MALCOLM CJ: In my opinion this appeal should be allowed and the sentences of imprisonment for each of the counts of aggravated sexual penetration without consent, should each be increased from seven years to 12 years to be served concurrently with each other and with each of the sentences of imprisonment for two years in respect of all the remaining offences. I have reached this conclusion for the reasons to be published by Pidgeon J and only wish to add some comments of my own.

2 I have had considerable difficulty with the opinion of Dr Vivienne Cass that the respondent was in a dissociative state at the time of planning and executing the offences. It is not explained how in such a state it was possible for the respondent to carry out the detailed and intricate planning, including such things as attaching gauze to the eyeholes of the balaclava he obtained to commit the offences. This was designed to prevent recognition by the victim by means of seeing his eyes. Furthermore, it was necessary for him to arrange to take a day off work. It was also necessary that the day coincide with a day on which the victim would be at home and his wife would be working. He had to obtain the various items with which he penetrated the victim, together with the camera and the three rolls of film. After the offences were committed he disposed of the clothing and other items in the bush and hid the films in a box in his wardrobe. He had thought about what he proposed to do over several weeks, although the specific plan was formulated only some four days before the offences were committed.

3 Dr Skerritt made a diagnosis of depressive disorder, involving a separation in the respondent's mind of good and bad thoughts. He said that this was an example of dissociation where the brain manages to separate different aspects of mental functioning from each other. This explanation, however, did not excuse what the respondent did. The illness did not come within s 27 of the Criminal Code. The ultimate purpose of the behaviour was considered by Dr Skerritt to be self-punishment and:

"The mental process of dissociation allowed his brain to split off this highly abnormal behaviour and this contributed to the commission of the crime."

Dr Skerritt considered that an organic cause was very unlikely.

4 Ms Denise Cull, the forensic psychologist contracted to the Sex Offender Treatment Unit agreed with Dr Skerritt that the respondent was suffering from a depressive disorder, which she described as "major" and that the symptoms described in the weeks leading up to the commission of the offences were suggestive of a de-personalisation disorder. While this provided some basis for understanding his mental functioning before, during and after the offending, it apparently did not provide any explanation for his sexually deviant behaviour represented by the commission of the offences.

5 In these circumstances, the learned sentencing Judge was clearly entitled to regard the nature of the mental illness of "strictly limited influence" in the sentencing context, although the respondent was entitled to some mitigation of sentence on account of it.

6 In my opinion, while it remains that there is no "tariff" in relation to sentences imposed for offences involving sexual assaults, the chapter of criminality represented by these offences involved a series of sexual offences which rank among the worst of their respective kinds in terms both of the number and the degree of depravity involved.

7 In my opinion, an appropriate starting point for the offences involving sexual penetration of the vagina by means of the various implements employed was in each case 15 years, for which the respondent was entitled to a discount of three years on each on account of his plea of guilty and all other mitigating circumstances, including his mental state and remorse. The pleas of guilty saved the victim the trauma of a trial, but in my opinion they were largely a recognition of the inevitable, having regard to the strength of the case against the respondent.

8 PIDGEON J: This is an appeal by the Crown against a sentence of seven years imprisonment imposed by the Chief Judge in the District Court on the respondent for a series of sexual offences described by his Honour as being of an appalling and horrendous nature and which were committed by the respondent on his 20-year-old stepdaughter in the space of approximately one hour. The grounds of appeal claim that the sentence failed to reflect sufficiently the serious nature and circumstances of the offences, including the breach of trust. It is claimed it placed undue emphasis on factors personal to the respondent.

9 The Chief Judge described this as one of the most difficult sentencing decisions he had been called upon to make and it will shortly become apparent why he would make a remark of this nature. The respondent was born at Neath in Wales in 1949. He was accordingly 49-years-of-age when the offences were committed. He had at that time never committed any previous offence and subsequently there has been no offence other than a failure to licence a collector's pistol and ammunition which was found by the police at the time. An insight into his character prior to his committing these offences can be obtained from a letter his wife wrote to the sentencing Judge in her request for leniency. She informed the sentencing Judge that her 10 years of marriage were the happiest years of her life and spoke very highly of the respondent in carrying out his duties as a stepfather and in providing for the family. He married her in Wales in 1987 following his first marriage being dissolved. There was a daughter of his first marriage. The person he remarried had three children, namely the complainant and two younger sons. There was a son of this new marriage who was aged nine years at the time of the offence. They lived together in Wales for approximately ten years. He had been employed as a driver for BP Oil. Restructuring of the company resulted in a change in status for him from that of an employee to a contractor. This resulted in a financial loss and he found it impossible to meet his commitments. He was required to maintain the daughter of his first marriage and to pay mortgages. This led to his decision to bring the wife and family of his second marriage to this State. The brother of his second wife was already living here. The brother agreed to sponsor the family and to finance a skipbin rubbish removal business with the respondent driving the truck. He worked very hard to build up this business. It is against this background that I must describe the offences he committed.

10 His eldest stepdaughter, then aged 20 years, worked at nights as a waitress in a local restaurant. On 7 September 1998 she awoke early as it was part of her normal routine to drive her mother and elder brother to the railway station so they could go to work and she could have the car. She arranged, on her return, for her younger brother to go to school. At about 8am she went back to bed for some more sleep. While these things were occurring, the respondent was deliberately watching from outside the house and saw the other members of the family leave. When he knew that the complainant was alone he entered her bedroom through the window and was disguised as a robber. He had a balaclava over his head with gauze covering his eyes. He had purchased the balaclava approximately three weeks earlier. He was armed with a knife.

11 The complainant awoke and saw standing over her a person disguised as I have described, holding a knife close to her face and taking hold of her hair with his other hand. He was wearing plastic examination gloves. She could not see his eyes because the eyeholes were covered with what she described as "black stitching around the eyes". She thought it was her stepfather as she recognised the socks and some other features. The first thing he said to her was "Just fucking roll over bitch." He also told her to "shut up". This caused her to think that possibly it was not her stepfather "and that it was real". He then told her to put her face down and her hands behind her back. The respondent then pushed the complainant so that she was face down on the bed. He tied her wrists behind her back with plastic industrial ties and tied her left leg to one of the bedposts. She at an early stage yelled at him to get off. He was speaking in an Irish accent which the complainant thought was being "put on". She said "later, when he calmed down, the accent dropped a bit, and his voice sounded familiar and I thought that it was my step-dad". He went out of the room to other rooms in the house pretending to look for money. He said in his later record of interview that he did this to make it appear that he was not her stepfather. When he came back into the bedroom he said "Where's the fucking money, there's got to be money in a house like this." He called her a "rich bitch" and said that she had to have money living in a nice house. She replied that they were renting it and he said, "I've heard that one before".

12 He undid the ties on her arms and told her to roll over. She did this. Her left foot was still tied to the bottom of the bed. He tied her left arm behind her head to the bedhead. He saw her looking at her phone and he pulled the plug out of the wall saying to her "Don't get any stupid ideas". He lifted her top and played with her breasts. He then said, "Let's see what you have here". He pulled her shorts off, prodded in between her legs and asked if she was a virgin. When she answered in the negative he asked how many people she had been with and she replied that it was two. He said, "So you like a bit of it?" to which she again replied in the negative. He told her that she was a liar and inserted his finger in her vagina. He continued to speak to her in an aggressive and insulting manner saying to her "I bet you put it around the clubs a bit". She started to become upset and he said "Don't get teary eyed with me, bitch". He asked her whom she lived with and she said her mother and father and two brothers. She told him her father was at work. She told him that her father could be home at any time. There was then further discussion consistent with his wanting to carry out a burglary. He left the room and came back with what she described as one of her stepfather's Pentax cameras. He said "Do you know how to fucking work this thing?' She replied "No, it's not mine". He told her she had better "fucking smile" or else he would hurt her. He then demanded she adopt various poses of an obscene nature and her photographed her in these positions. During the course of taking the photographs he cut the tie on the complainant's left leg so that she could adopt a particular pose for him.

13 After taking a number of photographs the respondent left the complainant's bedroom and returned shortly afterwards with some KY lubricating gel. He retied the complainant's left leg to the bed but cut the tie which was around her left wrist. He then placed the gel onto his hands and fingers and rubbed it into the complainant's vagina before inserting his finger into her vagina. The respondent proceeded to force the complainant to insert into her vagina a cucumber, the handle of a hairbrush, the neck of a wine bottle and on five separate occasions a banana. Whilst forcing the complainant to perform these acts he continually took photographs of her in various positions, requiring her to smile as she did so. During this time the respondent also told the complainant to get on all fours so that she was facing the bedhead. Once she was in that position he pulled apart the cheeks of her buttocks and inserted one of his fingers into her anus. This caused the complainant some pain.

14 The respondent then left the bedroom and returned a short time later with a black-coloured penis-shaped vibrator. He lubricated the vibrator with the KY gel and rubbed it between the complainant's vaginal lips. He then turned the vibrator on and rubbed it on her clitoris. He then instructed the complainant to insert the vibrator into her vagina. The complainant did this. The respondent then said to her that she could insert the vibrator further than that and pushed the vibrator further into her vagina, causing her discomfort.

15 He then forced the complainant to pose in various positions with the vibrator in her vagina whilst he took photographs of her. At one point whilst the respondent was taking photographs the complainant was half sitting up on the bed with the vibrator in her hand. The respondent took the vibrator out of her hand and forcibly inserted it into her vagina, causing her discomfort. The respondent then continued to take photographs. He ran out of film and left the room with the vibrator. A short time later he returned. He untied the complainant from the bed and proceeded to direct her at knifepoint to various rooms in the house. The complainant referred to his grabbing her by the hair from behind with his left hand and holding the knife, with his right hand, at the side of her neck. This happened on more than one occasion. On one occasion she could see the knife on another she could feel it. In these other rooms he forced her to adopt various poses and photographed her. After doing this he directed the complainant back to her room. He then tied the complainant's arms and one of her legs to the bed. He covered the complainant's face and mouth with a form of blindfold so that she could not see him, removed his balaclava and performed cunnilingus on her and sucked her left nipple. Whilst the respondent was sucking the complainant's nipple he inserted his fingers into her vagina and anus simultaneously, moving them around as he did so. The respondent replaced his balaclava and removed the complainant's mask. He commenced to collect all of his belongings.

16 He told the complainant that this would be their little secret and that if the police picked him up he would send the photographs to everybody she knew including her mum and dad. He then cut several of the complainant's pubic hairs with a pair of scissors and told her that he wanted them as souvenirs. The respondent then left the room. He left the pair of scissors with the complainant so that she could cut herself free. He drove to a bush track off Beechboro Road and disposed of the items of clothing worn by him during the attack, as well as the knife he had used and the pubic hairs he had cut from the complainant. The attack lasted for approximately 1 hour. During that time the respondent took 65 photographs of the complainant in various sexual poses. Once she was sure that the respondent had left the house, the complainant drove to her mother's work to seek assistance and notified the police.

17 On the afternoon of Wednesday, 9 September 1998 investigating officers attended at the respondent's home address and executed a search warrant. Three rolls of Fuji colour photographic film were located hidden in an old record box in the respondent's walk-in robe. Those films were later developed and found to be the photographs of the complainant which had been taken by the respondent during the attack. After the execution of the search warrant the respondent later directed police to the bush track where he had disposed of the clothing and other items. He was subsequently interviewed on video on 10 September 1998. During that interview he admitted to every aspect of the conduct which I have described.

18 The respondent was charged on indictment with 24 offences arising from what I have described. These were one count of deprivation of liberty, eight counts of sexual penetration whilst armed, nine counts of, whilst armed, compelling the complainant to engage in sexual behaviour and six counts of indecent assault whilst armed.

19 The applicant pleaded guilty on the fast track. He has shown extreme remorse. His solicitors arranged for him to be seen by Dr Vivienne Cass, a clinical psychologist and psychotherapist. They also arranged for him to be seen by Dr Skerritt, a psychiatrist. The sentencing Judge sought a further report from a psychiatrist who was not in the jurisdiction and this resulted in there being a further report from Dr Skerritt. His Honour also had before him a report from Ms Denise Cull, the forensic psychologist contracted to the Sex Offender Treatment Unit of the Ministry of Justice.

20 The first report to which I shall refer is an undated report from Dr Cass. She said that the respondent presented as a man of low average intelligence. He was co-operative but emotionally upset and concerned with the effect of his offending behaviour on his family. He seemed desperate to find an explanation for his behaviour and expressed shame at his actions. Dr Cass said that while the respondent recognised that his stepdaughter must have been devastated by what he did to her, there was a lack of deep feelings of empathy for her situation. The emotional distress expressed as he described what took place appeared to derive largely from the disruption of family life for him and his fears that his wife would reject him. The respondent described to Dr Cass how he had put on the balaclava with gauze sewn by him and returned home on the date of his offence knowing his stepdaughter was still in the house. He said that he had previously planned an elaborate idea of procuring his stepdaughter to sexually pose for him whilst he took photos of her. He said that prior to his entering the house he apparently had no specific idea of what he was going to do. He told Dr Cass that he had obtained some of his ideas from reading pornographic material found at a rubbish dump. He said that although he thought about different schemes over several weeks, it was only four days prior to the assault that he "firmed up" any plans. He told Dr Cass that he was divided into "a good self and an evil one at the time". He said that it was the latter that plotted the incident while the former was horrified at what was being considered. Dr Cass referred to the fact that the respondent had not been involved with the law prior to this charge. She said that despite this history and a moral capacity to judge his actions to be wrong, he was able to plan the assault and carry it out. Dr Cass considered that the description of events suggested that he was in a dissociative state at the time of planning and executing the assault. She explained this by saying he was experiencing a mental disorder, which saw him dissociate his actions from his moral reasoning. The disorder also saw him have no control over his actions. She said that he appeared to have been in a depersonalised state, a characteristic of the dissociative order. Dr Cass said that the dissociative mental disorder appears to have been temporary, brought on by stressful events occurring several months prior to the incident of assault. She said that after he was charged the respondent returned to his previous mental state, that is, without the division of himself into good and evil. She said that it was only then that he could apparently think through what had been happening and recognised the role that the "good" and "evil" parts of himself had played.

21 Dr Cass then referred to the events leading to the dissociative mental state. She referred to his having to work for reduced wages in the United Kingdom which placed him under financial strain. She referred to his difficulties here when the value of the Australian dollar decreased. Dr Cass said that as the bills piled up he became frantic, felt a failure and became despondent. She felt that it was likely that this would lead to a depressive episode. He did not discuss his feelings with his wife. He tried to sell the house in the United Kingdom but the arrangements fell through at the last minute. Dr Cass said that she believed that the respondent's behaviour, when taken in the context of his life at the time, could be seen as an isolated incident being the end result of a period of depression. This led to a build up of dissociative symptoms which was temporary. She felt that he could benefit from psychotherapy and that such treatment would help to prevent any recurrence of the circumstances.

22 The next report to which I shall refer is the first report of Dr Skerritt. He interviewed the respondent in prison on 31 October 1998. He also viewed the videotape interview between the respondent and the investigating officers. He said in his report dated 2 November 1998 that he could not find any evidence of the sort of mental disorder which may have made him eligible for such defences as insanity or automatism. However, he expressed the opinion that his uncharacteristic behaviour was a result of mental illness which perhaps might be considered in mitigation of his offences. He outlined the difficulties to which I have previous referred. He described how the respondent was worrying over his financial affairs which he felt represented a recurrence of a depressive illness which had commenced in England. He said his symptoms worsened markedly in the two or three weeks before the offence. When clearing away rubbish he took a professional interest in what was being thrown out and noticed that pornographic magazines figured prominently. He had a pre-occupation with them and commenced to collect them. This resulted in a formulation in his mind of a sexual assault on his stepdaughter involving the taking of photographs. He found himself collecting the equipment for the assault, including the balaclava in which he sewed the gauze over the eyes. He arranged to take a day off from his work in order to carry out the assault. Dr Skerritt considered that the respondent had suffered intermittently from a depressive disorder which could probably be classified as a dysthymic disorder. The typical depressive features included low moods, low energy and a change in sleep pattern. He said that the thought processes of depressed people particularly run to two themes. They are guilty of self-deprecatory thoughts and pessimism. When these are added together, suicide often seems reasonable to a depressed person, and indeed is the commonest diagnosis found in successful suicide. Dr Skerritt considered an interesting feature was the separation in the respondent's mind of good and bad thoughts. He said this was an example of a classic mental mechanism known as dissociation where the brain manages to separate different aspects of mental functioning from each other. He considered that the illness is potentially treatable.

23 At the time of sentencing there was before his Honour, as I have mentioned, a report from Ms Denise Cull, the forensic psychologist contracted to the Sex Offender Treatment Unit. She expressed a different view from Dr Cass and Dr Skerritt. She considered that there was a condition present but that it did not offer an explanation as to why the respondent behaved as he did. She completed a specialist report based on two lengthy clinical interviews with the respondent and a lengthy discussion with the respondent's wife who was then in the United Kingdom. Psychological tests were also carried out. Ms Cull confirmed his remorse, distress and confusion. She outlined the tests she applied. She felt that it was likely that the factors outlined combined to contribute to the onset of a major depressive disorder. She thought that the symptoms described as appearing some weeks prior to the event were suggestive of the presence of a depersonalisation disorder. She then said that while this diagnostic feature provides some likely understanding as to his likely state of mental functioning during the period before, during and immediately after offending, there is no explanation offered as to why he behaved in a sexually deviate manner when suffering the symptomology as described.

24 His Honour requested a further psychiatric report. The psychiatrist he had in mind was not available and the result was that there was received another report from Dr Skerritt, who interviewed the respondent again on 30 January 1999. Dr Skerritt noted the puzzlement expressed by his Honour on why, if a mental illness was so prominent in the determination of the event, an insanity defence was not appropriate. He outlined why he considered that the illness did not come within s 27 of the Code. He noted the two psychological opinions, one expressed by Dr Cass and the other by Ms Denise Cull. He preferred his own diagnostic formulation that certain problems in life provoked a major depressive disorder. He said:

"The psychopathology of depression often involves behaviour whose ultimate purpose is self-punishment and thus can be compared with suicide which is also typical. I think this was the reason for the most uncharacteristic behaviour shown by Mr Richards in the commission of the offence. The mental process of dissociation allowed his brain to split off this highly abnormal behaviour and this contributed to the commission of the crime."

25 He felt that an organic cause, namely damage to the brain, was not a very likely possibility.

26 The respondent's present wife has returned to the United Kingdom and in the letter to which I have referred pleaded for leniency asking his Honour to take into account the psychological and psychiatric reports and indicated that she was ready to take him back as soon as she was able. It is anticipated that the respondent will be deported at the conclusion of his term. The daughter has also permanently returned to the United Kingdom and there is no victim impact statement from her. The Court has not been informed of the present relationship between her and her mother

27 The learned sentencing Judge accurately and concisely outlined the facts relating to the offending. He referred to the respondent's previous history and matters personal to him. He said in respect of the material he had from the wife:

"Your wife speaks of you well and of how you took over the care of her family, of whom the complainant is one, coming to Australia in April 1997.

You set up a small business and you worked long hours. She says of you that you are a gentle, kind, understanding man and the most docile man she has ever met. Your wife makes the point that your actions on this day were completely out of character and that you are a sick person."

28 The following were his Honour's views and findings in respect of the specialist reports before him:

"I also have a report from Dr Vivienne Cass, clinical psychologist and psychotherapist. She says of you that you appear desperate to find an explanation for your behaviour and express shame at your actions.

You maintain that during the events of 7 September it was an evil self and not your good self that was assaulting the complainant and that you were detached from what was happening. The psychologist said that you were in a dissociative state at the time of planning and executing the assault and that you were experiencing a mental disorder which saw you dissociative your actions from your moral reasoning.

The conclusions that Dr Cass reached were that this was an isolated instant, the end period of a period of depression and extreme stress brought on by your inability to deal with serious financial difficulties and resultant feelings of worthlessness. The comment is further made that although like many sex offenders 'he lacks the deep empathy for his victim, he clearly feels shame and regret about his actions'.

I further have the report of Dr Paul Skerritt dated 2 November 1998. The second paragraph of that report reads as follows:

'I would say at the outset that I did not find any evidence of the sorts of mental disorder which may have made him eligible for such defences as insanity or automatism. It is my opinion, however, that this uncharacteristic behaviour is a result of mental illness which might perhaps be considered in mitigation of his offences.'

I have found, as I informed counsel earlier, the assessment of this matter to be extremely difficult and I'm grateful to Dr Skerritt for a further report dated 16 February 1999 following a further review on 30 January 1999. Clearly, what it recommended is that the mental illness of the offender on the day in question be considered in mitigation of the sentence."

29 His Honour then referred to the judgment of this Court in Symonds v The Queen, unreported; CCA SCt of WA; Library No 980616; 28 October 1998 and to R v Tsiaras [1996] VicRp 26; [1996] 1 VR 398. His Honour then said in expressing his reasons for coming to the sentence he did: (AB23)

"I have no expertise in disorders of the mind. I profess no expertise in disorders of the mind, but the events of the day are so appallingly horrendous that it is difficult to see how any man of the offender's antecedents could possibly have committed them.

You were clearly, up to that day, of exemplary character and well regarded by all who knew you. I am, however, of the conclusion that because of the gravity of your offences, your personal mental circumstances or illness on the day are of strictly limited influence. I have considered at length the authorities on mental illness that I have just referred to in this respect but I also keep coming back to the grossness of the offences which you committed, which outweigh, in my view, the mental illness factor."

30 His Honour imposed sentences of imprisonment in respect of each of the offences. These were concurrent terms of seven years in respect of those offences of aggravated sexual penetration without consent. In respect of the counts of offences of compulsion to engage in sexual behaviour by compelling the complainant to penetrate her vagina with various items and the counts of indecent assault, there were concurrent terms of two years imprisonment imposed. This made the total effective term of seven years imprisonment. His Honour concluded: (AB24)

"All of those terms are to be served concurrently and the final constructed term of 7 years is significantly reduced from a period of closer to 10 years which would have been imposed had you not evidenced the remorse that you have shown and had you not pleaded guilty on the fast-track system. Each of the section 32 notices shall bear 3 months' imprisonment. They will all be served concurrently. They will all date from 9 September 1998 and the offender, is of course, eligible for parole.

31 The submissions on behalf of the appellant are that the offences were of the utmost seriousness by reason of a combination of factors including the fact that the offences were planned and of a predatory nature. They involved the invasion of the complainant's room by a man disguised and armed. The nature and number of offences and the fact that they constituted a great breach of duty by reason of the complainant being a stepdaughter in the respondent's own home.

32 There have in the past been different approaches to sentencing in cases of this type. One approach was to consider the appropriate sentence for the overall behaviour which took place over the time it occurred, having regard to the previous planning. When this sentence was determined the sentences for the individual offences would be imposed to fit in with this total. If this approach were adopted, this Court has said on previous occasions that it would not matter if one or two individual sentences were not appropriate. When this approach was adopted it was often thought better to impose the figure arrived at, or the greater part of it, in respect of a most serious offence and make the remainder or most of the remainder concurrent.

33 The High Court in Pearce v The Queen [1998] HCA 57; (1998) 72 ALJR 1416 considered this approach in a case where there were overlapping offences and pointed out in the case of overlapping offences an offender could be twice punished if the trial Judge had regard only to the total effective sentence that is to be or has been imposed on the offender. In the case then being considered there were overlapping offences in the sense that the appellant was charged (among other things) with maliciously inflicting grievous bodily harm with intent to do the victim grievous bodily harm and with breaking and entering the dwelling house of the same victim and, while therein, inflicting grievous bodily harm on him. The charges arose out of a single episode of the appellant breaking into the victim's home and beating him. As was pointed out in the majority judgment the elements of the offences charged overlapped, but they were not identical.

34 If however, a Judge is sentencing in respect of similar offences occurring on different occasions over a period of time committed against the one person, then the type of error considered in the case of Pearce would not arise. This Court in Kauhanen v R (1999) WASCA 14 left open the question whether a sentencing Judge was precluded by reason of the principles referred to in Pearce from first considering an overall sentence appropriate for the whole of the conduct or for imposing individual sentences. At some stage, for the purpose of judging totality, the question must arise as to what is the appropriate sentence for the whole transaction.

35 In the present case with one exception, each offence was separate and occurred after the preceding offence. There would be an overlap in respect of the offence of deprivation of liberty by reason of the fact that each offence occurred whilst the victim was deprived of her liberty. This would be a factor to increase the seriousness of each of the remaining offences and would therefore be a factor to increase the sentence in respect of those offences. It would follow that the sentence for that offence must be concurrent and this was the course followed by the sentencing Judge.

36 His Honour imposed a sentence of seven years imprisonment in respect of each of the offences involving penetration. All sentences were imposed concurrently. His Honour referred to the seven year sentence as a "constructed term" which he said was significantly reduced from a period closer to 10 years which would have been imposed had there been no remorse and the plea of guilty. This would indicate that his Honour saw the seven year term appropriate for each of the penetration offences having regard to the circumstances in which each was carried out.

37 The principle referred to by McHugh, Hayne and Callinan JJ in Pearce when considering the sentences to be imposed for overlapping offences is contained in [45] at 1423:

To an offender, the only relevant question may be "how long", and that may suggest that a sentencing judge or appellate court should have regard only to the total effective sentence that is to be imposed on the offender. Such an approach is likely to mask error. A judge sentencing an offender for more than one offence must fix an appropriate sentence for each offence and then consider questions of cumulation or concurrence, as well, of course, as questions of totality.

38 In order to determine whether there was any error in respect of the sentencing Judge's starting point of 10 years, I propose to adopt the approach referred to by their Honours in Pearce and to consider the appropriate sentence for the most serious of the offences committed by the respondent. I consider these to be the offences of sexual penetration with his finger committed in the circumstances they were and the further offences of procuring the complainant to insert objects into her vagina, particularly the vibrator. I propose to consider, as the starting point, the appropriate sentence if there were no mitigation and then to consider the effect of any mitigating factors.

39 None of these more serious offences can be considered in isolation. Each was part of a transaction aimed to intimidate and humiliate the complainant as well as to give satisfaction to the respondent. If one accepts that the sentences should be imposed concurrently as being part of the one transaction, then the whole transaction must be considered in imposing the appropriate sentence for each offence. The fact that the offence is part of a series of offences is a factor to increase the term otherwise applicable. This was referred to by Malcolm CJ in R v Podirsky (1989) 43 A Crim R 404 at 411. His Honour referred to the fact that where there are a series of offences of aggravated sexual assault involving a girl under 16 sentences in the range of 9-11 years are commonly imposed and referred to a number of cases in support of this. The offences in the present case have a number of significantly worse features than those considered in Podirsky. I say this after taking into account the difference in age. In the present case the victim was tied up and threatened with a knife. She was forced to insert objects and while this was occurring photos were being taken with the demand that she smile. She was told that these photos would be shown to people if she reported the matter. The offences of inserting objects were not confined to a single object but were part of a series of offences requiring her to insert a cucumber, hairbrush, wine bottle, a vibrator and a banana a number of times. There was a demand that she insert the vibrator to a greater extent to what she initially did. I would see these latter offences as approaching but not reaching an offence of the worst of the sort. (See Bensegger v R [1979] WAR 65 at 68 and Veen v R (No 2) [1988] HCA 14; (1988) 164 CLR 465). I consider that a starting point for each of these offences as being one of 15 years imprisonment to be served concurrently.

40 The question now to be considered is whether there were mitigating factors to reduce this sentence. The first to be considered is that the respondent was of exemplary character prior to his contemplating the commission of these offences and there were many positive points which must be weighed in his favour when assessing his character. This is lessened to a large extent by the fact that this was not an offence committed on the spur of the moment. An attack of this type was in the respondent's mind for some significant time. It was planned and put into effect when it was known the victim would be alone. In these circumstances good character could have only a minimal effect for an attack of this type on a stepdaughter.

41 The next factor that must be considered is that his wife is prepared to forgive him and to take him back and to continue the marriage. The important fact to bear in mind, however, is that his wife is not the victim. It is not known whether the complainant has a similar attitude. It must follow that an attack of this nature will have a devastating effect on a victim. The complainant has left a happy home and has returned to the United Kingdom. In the absence of a complainant seeking leniency, the court must act on the basis that the effect of such an attack is what is to be normally expected. The learned sentencing Judge did not regard his wife's attitude as a mitigating factor and I consider he was correct in respect of this.

42 The remorse shown combined with the plea of guilty on the fast-track, which in this case was a confirmation of the remorse, are significant factors to be taken into account and were taken into account by his Honour.

43 The remaining factors to consider are the factors that were affecting the respondent's mind. This is an important matter to consider. As was said by Brennan J (as he then was) in Neal v R [1982] HCA 55; [1982] 149 CLR 305 at 324: "Emotional stress which accounts for criminal conduct is always material to the consideration of an appropiate sentence, though its mitigatory effect can be outweighed by a countervailing factor..." I would see the law in this State as being that the mere presence of a psychiatric condition is not of itself mitigation unless it is shown that there is a connection between the psychiatric condition and the commission of the offence so as to justify a reduction of the sentence imposed. It must be shown that the condition contributed to the commission of the offence or was a factor to lessen the moral culpability of the offender. The law was recently stated by Steytler J in Symonds v The Queen, unreported; CCA SCt of WA; Library No 980616; 28 October 1998. In that case the applicant had committed three offences of sexual penetration without consent and had unlawfully detained a 19 year old complainant. He had offered the complainant a lift home in his car. He drove her to a place she did not want to go and committed the offences with a degree of physical violence. He was a 35 year old self employed businessman, who, at the time was severely depressed as a result of family problems. There was before the sentencing Judge a psychiatric report that the applicant was suffering from a severe psychiatric disorder in the form of major depression. He had received treatment and the psychiatrist was of the opinion 'with reasonable medical certainty' that the applicant was unlikely to re-offend. Steytler J, in reasons with which the other members of the court agreed said that the court was referred, so far as the applicant's psychiatric illness was concerned, to two cases which have touched upon the effect of psychiatric disorders on the sentencing process. His Honour said:

"In the first of these, R v Tsiaras [1996] VicRp 26; [1996] 1 VR 398, the Victorian Court of Appeal, comprising Charles and Callaway JJA and Vincent AJA said, at 400, that:

'Serious psychiatric illness not amounting to insanity is relevant to sentencing in at least five ways. First, it may reduce the moral culpability of the offence, as distinct from the prisoner's legal responsibility. Where that is so, it affects the punishment that is just in all the circumstances and denunciation of the type of conduct in which the offender engaged is less likely to be a relevant sentencing objective. Second, the prisoner's illness may have a bearing on the kind of sentence that is imposed and the conditions in which it should be served. Third, a prisoner suffering from serious psychiatric illness is not an appropriate vehicle for general deterrence, whether or not the illness played a part in the commission of the offence. The illness may have supervened since that time. Fourth, specific deterrence may be more difficult to achieve and is often not worth pursuing as such. Finally, psychiatric illness may mean that a given sentence will weigh more heavily on the prisoner than it would on a person in normal health.'

In the second case, R v Lippiatt, unreported, CCA SCt of WA; Library No 980065; 17 February 1998, the Western Australian Court of Criminal Appeal (Kennedy, Franklyn and Ipp JJ) said, at 10, that while mental illness has been held to have a limited mitigatory effect in cases in which imprisonment will be harder to bear because of that illness it was open to argument whether the wider approach in R v Tsiaras should be followed in this State. Senior counsel for the applicant contended that the depression from which the applicant suffered did reduce his moral culpability and also that it made this case an inappropriate vehicle for general deterrence.

While it might be so that a serious psychiatric illness might reduce the moral culpability of an offender there is nothing in the evidence in this case to suggest that the applicant's depression had any marked effect on his moral culpability so far as his commission of these offences was concerned or that it was or is such that it should have any significant impact on ordinary principles of general deterrence. Dr Kay, in his analysis of the reasons leading up to the commission of the offences, appears to have concentrated more on the applicant's upbringing and adverse life experiences than upon his psychiatric illness. While it might well be inferred from what was said by Dr Kay that the illness, together with the other factors referred to by him, affected the applicant's judgment in such a way as to make him more likely to offend, this seems to me to have been sufficiently taken into account by the learned sentencing Judge who remarked, as I have said, that the severe depression could not excuse or "fully explain" (my italics) the applicant's conduct. Moreover, the learned sentencing Judge reiterated, immediately prior to imposing each of the sentences of imprisonment imposed by him, that he had had regard to the psychiatric factors which he had earlier outlined.

I should add, in this respect, that it was not contended that the fifth of the propositions enunciated in R v Tsiaras has any application to the circumstances of this case in the light of the applicant's good response to continuing treatment which has been such as to see his disorder dissipate within weeks, subject only to the continued taking of anti-depressant medication."

44 The case of R v Tsiaras [1996] VicRp 26; [1996] 1 VR 398 referred to five possible ways in which serious psychiatric illness not amounting to insanity is relevant to sentencing. First it may reduce the moral culpability of the offence as distinct from the offender's legal responsibility. I do not consider that a depression, even a severe one, would reduce the moral culpability of an attack of the type carried out by a stepfather on a stepdaughter. Denunciation of this type of conduct is still most relevant to the sentencing objective. The second factor referred to is that the illness may have a bearing on the kind of sentence that is imposed and the conditions in which it should be served. A depression would not come into this category. The third factor referred to is that a person suffering from serious psychiatric illness is not an appropriate vehicle for general deterrence, whether or not the illness played a part in the commission of the offence. This last proviso reveals a divergence of view in this State and Victoria. There would be no argument that certain conditions that contributed to the offence may, in some cases, lead to this result. The position in Victoria was considered in R v Anderson [1981] VicRp 17; [1981] VR 155. The Full Court applied that principle to a case of a person suffering from paranoid schizophrenia who was found guilty of two counts of wounding with intent to murder and one count of maliciously inflicting grievous bodily harm. They occurred at the same time. The offender said that he remembered nothing until he was placed in a police van. The trial judge was informed that a deliberate decision was made not to raise insanity. There was evidence to support this. It may well be that such a situation would not arise in this State by reason of s 653 of the Criminal Code as amended which may require the jury to consider the question of insanity in any event. Whatever may be the situation the psychiatric illness in that case could not be compared to the present case. The Full Court in that case followed an earlier unreported decision of that court in the case of R v Mooney, unreported; 21 June 1978 and referred to at page 159 of the report of R v Anderson. The Court in that earlier case was considering an applicant who had pleaded guilty to one count of assault occasioning bodily harm and one count of wounding with intent to resist lawful apprehension. He was suffering from a mental condition described as "mental depressive psychosis". There was again evidence upon which a conclusion might have been based that he was insane in the legal sense. In R v Tsiaras the Court was considering a sentence of three years imprisonment imposed on an offender for trafficking in cocaine. It was considered that the trial judge did not have sufficient regard to the offender's schizophrenic illness. The court in that case considered that the circumstances of the offender prevailed over the offence.

45 I would decide this particular question on the basis that it could not be said that a person suffering from the depressive illness claimed on behalf of the respondent is not an appropriate vehicle for general deterrence when committing offences of the type committed. This is not a case where the circumstances of the offender prevailed over the offence nor is it the case of the respondent being mental deficient. In the present case the learned sentencing Judge considered what was put forward to him in respect of mental illness, but his ultimate judgment was expressed in the words, "I also keep coming back to the grossness of the offences which you committed which outweigh, in my view, the mental illness factor". I consider that judgment was open to his Honour and that it was a correct one. The result was that his Honour treated it as adding to a small extent the mitigating circumstances of the fast-track plea and the remorse. The other two matters referred to in R v Tsiaras would have no bearing on the present case.

46 I consider that the discount referred to by his Honour for the factors mentioned was appropriate. I consider the difficulty with his Honour's assessment is that the starting point was insufficient for the grossness of the appellant's conduct. I consider that having regard to the initial figure to which I referred, to the circumstances to which I have referred which would reduce sentence and to the fact that this is a Crown appeal, I would on the offences of sexual penetration and procuring the insertion of implements to which I have referred, impose a sentence of 12 years imprisonment. As this sentence takes into account all the factors of aggravation and the fact that it was the culmination of a series of offences, I would make the remaining sentences concurrent. In particular, the deprivation of liberty which overlaps the other offences, but which makes them the more serious must be a concurrent sentence. The sentences for the remaining acts of procurement and the acts of sexual penetration all contain the circumstances of aggravation to which I have referred and were all part of the series and I would in respect of those offences impose a similar term of 10 years imprisonment to be served concurrently. In respect of the remaining offences of indecent dealing and deprivation of liberty, I would impose concurrent terms of two years of imprisonment as imposed by his Honour. The appeal will be allowed accordingly.

47 IPP J: I have had the advantage of reading the reasons to be published by Pidgeon J. I agree with his Honour's recitation of the facts and agree that the appeal should succeed.

48 I have, however, come to a different conclusion as to the overall sentence that should be imposed. The most serious offences committed by the respondent were those of digital sexual penetration and the procuring of the insertion of implements. Unlike Pidgeon J, I do not think that these offences approach "the worst of the sort". Unfortunately, many cases of sexual assault come before the courts that involve violence, callous brutality and degradation to a far greater degree (cf Krencej v The Queen [1999] WASCA 20). By saying this, I do not intend to diminish in any way the seriousness of the respondent's conduct.

49 Undoubtedly, the entire course of the respondent's unlawful conduct must have caused the complainant severe emotional trauma, and was, in the words of Pidgeon J, "appalling and horrendous". Had the implements been inserted by the appellant himself, I would have agreed that the starting point for the offences of sexual penetration (including those involving the instruments) should have been 15 years' imprisonment. The fact that he required the complainant to insert the instruments herself, and did not himself do so, makes the offending conduct, to a degree, less serious. I do not, with respect, consider this to be a case comparable to R v Podirsky (1989) 43 A Crim R 404 as this is not a case involving a series of offences committed over a lengthy period. In my opinion, the starting point should have been in the region of 13 years' imprisonment. In my view this is where the conduct lies in the scale of gravity.

50 There were a number of mitigating circumstances. The respondent pleaded guilty on the fast track system. The learned sentencing Judge considered that he had shown genuine remorse. Prior to his attack on his stepdaughter, the respondent was a man of exemplary character. In addition, he was suffering from a mental illness. Moreover, the fact that this is a Crown appeal must be taken into account.

51 In the circumstances, for the offences of sexual penetration and the procuring of the insertion of implements I would impose a term of 10 years' imprisonment. Otherwise, I agree with the disposition of the appeal proposed by Pidgeon J. Accordingly, I would impose an overall term of 10 years' imprisonment.