R v Starr [1999] WASCA 119

1 MALCOLM CJ: This is a Crown appeal against sentence. On 13 April 1999 the respondent pleaded guilty to two counts of sexually penetrating a child under the age of 16 years when he well knew that the child was his de facto child. These were offences under s 329(2) of the Criminal Code.

2 The sexual penetrations involved the respondent penetrating the vagina of a 14-year-old child with his penis. The respondent was sentenced to 5 years' imprisonment for each of these counts to be served concurrently with each other. The learned sentencing Judge reduced the sentence from a starting point of 7 years to one of 5 years' imprisonment in each case due to the respondent's plea of guilty.

3 The respondent also pleaded guilty to committing four offences against another complainant, a 9-year-old girl. The complainant was sleeping in a bunk bed with two other girls, one of whom was the 11-year-old daughter of the respondent. The complainant woke up to find that she had been transferred to a double bed in the same room. The respondent removed her shorts. She was not wearing underpants. He then removed the clothing from his lower body and rubbed his erect penis against the complainant's leg. This was the subject of count 3 on the indictment; namely, a count of indecent dealing with a child under the age of 13 years contrary to s 320(4) of the Criminal Code, the maximum penalty for which is imprisonment for 10 years.

4 Following the commission of that offence, the complainant became upset and the respondent walked her out of the house. He then picked her up, put his hand over her mouth and ran towards bushland across the road. The complainant started screaming and slipped from the respondent's grasp. She ran back toward the house but fell over. He threw a knife at her which hit her hand, causing a superficial cut. The complainant attempted to run away but again fell over. The respondent fell on top of her and forced sand into her mouth. The complainant began crying and the respondent told her to be quiet or he would break her neck. The deprivation of liberty was the subject of count 4 in respect of which, again, the maximum penalty is a sentence of imprisonment for 10 years.

5 The respondent then took the complainant to his car. He removed a spanner, told the complainant to bend over and struck her twice on the back with the spanner. The complainant sustained swelling and tenderness and later sought medical attention. This assault was the subject of count 5; namely, an assault doing bodily harm contrary to s 317 of the Criminal Code, for which the maximum penalty was imprisonment for 5 years.

6 The respondent then removed a long chain from the back of his car and threatened to hang the complainant with the chain. He tied one end of the chain to a tree branch and tied a loop in the other end. The respondent told the complainant to stand on a refrigerator next to the chain. She complied with this. The respondent then ordered the complainant to put her head in the loop of the chain and pushed her off the refrigerator. The complainant started choking but managed to put her feet back on the refrigerator and free herself.

7 The offence to which the respondent pleaded guilty was the making of a threat unlawfully to kill the complainant contrary to s 338B of the Criminal Code for which the maximum penalty is imprisonment for 7 years. The learned Judge said:

"So far as counts 3 to 6 are concerned the complainant is only aged 9 years. The offences occurred at Beagle Bay."

His Honour went on to describe the offences briefly and said:

"These are very serious matters indeed. They are separate offences but they all indicate a significant criminal attitude. You have quite a long record, although I accept what Mr Bauman has to say that you have no previous convictions related to sexual offences."

His Honour went on to say in relation to counts 3 to 6:

I don't say you are in a position of trust, but force was used and I agree with the Crown that the last count, count 6 is a particularly serious example of a threat to kill, carrying out actions which would indicate that you might well have carried out that threat. There is very little to be said in your favour. I note that the pre-sentence report refers to problems in relation to alcohol, which I do appreciate and understand is a difficulty amongst Aboriginal people in this part of the State, and I take that very much into account. I did, however, see you speaking to the police on video records of interview and you certainly seemed to be an articulate person. You could express yourself properly so that the effect of alcohol doesn't seem quite as extreme as it might have on other people. One very important point in your favour is that you have pleaded guilty at a very early stage and I totally accept what Mr Bauman has to say; that is, it is a very important thing because in cases of this kind if you don't plead guilty then there is a trial and you have the children having to give evidence and go through the trauma of having to give evidence and relive the experiences that they have had. So it is an important thing and I will give you proper credit for that."

8 The learned Judge pointed out that counts 3 to 6 occurred at an entirely different time, namely, almost a year after the offences the subject of count 1 and 2 occurred. His Honour went on to say:

"Count 6, in particular, I consider to be extremely serious. With respect to count 6 I would normally have sentenced you to 3 years' imprisonment, but taking into account the early plea of guilty with respect to count 6 you are sentenced to 2 years' imprisonment. With respect to counts 3, 4 and 5, all of which are part of a course of conduct resulting in count 6, you are sentenced to one year's imprisonment on each of those and I direct that they be served concurrently with each other, but because the two series of offences are entirely separate I consider it appropriate that they should be served cumulatively, so that the total sentence with respect to counts, 3, 4, 5 and 6, being 2 years' imprisonment, will be served cumulatively with the sentence of 5 years on counts 1 and 2, making a total of 7 years' imprisonment with respect to all of these offences. I declare that you are eligible for parole."

"Though the sentence of 5 years' imprisonment with respect to counts 1 and 2 was appropriate and notwithstanding the principle of totality, the learned sentencing judge was in error in that the effective sentence of 2 years' imprisonment for counts 3, 4, 5 and 6:

(a) failed to adequately reflect the seriousness of the offences and the circumstances in which they were committed, in particular:

(ii) the terrifying and demeaning ordeal the complainant was subjected to; and

(iii) the actions of the respondent which accompanied the offence of making a threat to kill;

(b) failed to reflect the need for specific and general deterrence;

(d) was in the circumstances so inadequate as to manifest error."

10 The approach to Crown appeals which has been applied in this Court is set out in R v Grein [1989] WAR 178 at 179-180 per Malcolm CJ. It is unnecessary to repeat what was there said. It is, of course, the case that Crown appeals are in a sense exceptional. In Everett v The Queen [1994] HCA 49; (1994) 181 CLR 295 Brennan, Deane, Dawson and Gaudron JJ said at 299:

"An appeal by the Crown against sentence has long been accepted in this country as cutting across the time-honoured concepts of criminal administration by putting in jeopardy for the second time the respondent's freedom beyond sentence imposed."

11 Subject to that, of course, the general right of appeal which is given to the Crown under the Criminal Code is to be distinguished from legislation which merely gives the Crown the opportunity to seek leave to appeal, in respect of which different considerations may apply. But, taking into account the circumspection and the level of restraint which should be approached in relation to Crown appeals, I am of the opinion that the circumstances of the offence the subject of count 6, in the context of the offences which were committed prior to the commission of that offence, the subject of counts 3, 4 and 5, put the offence the subject of count 6 into the category of one of the most serious offences of the kind which could occur in relation to a threat to kill.

12 The respondent made the threat, had the means to carry it out, and in fact set in motion the process of carrying it out to the point where the chain was put around the complainant's neck and she was pushed off the refrigerator on which she was standing. But for her action in being able to loosen the chain by pushing her feet against the refrigerator, the result may have been a great tragedy.

13 That being so, the starting point of 3 years adopted by the learned sentencing Judge in a context where the maximum penalty was 7 years was manifestly inadequate. In my opinion this was a very serious offence. Considerations of general and personal deterrence need to be taken into account in this context where one is dealing with indecent dealing with children, with threats to kill, deprivation of liberty, and assault occasioning bodily harm: cf R v Lucas (1995) 78 A Crim R 40 per Rowland J at 47; and per Murray J at 48; and R v Turner, unreported, CCA SCt of WA, Library No 920662; 4 December 1992, per Murray J at 21.

14 In relation to the offence under s 338B of the Criminal Code, it is the making of the threat which constitutes the gravamen of the offence. The offence itself does not require any intention to actually carry out the threat, but if such an intention is established, that is an aggravating factor which is of relevance to the sentence to be imposed. See Turner, supra, per Murray J at 5.

15 In the present case the threat to kill can be put into the category of the worst of its kind because it was made in respect of a 9-year-old girl. She was already plainly terrified by reason of the conduct in which the respondent had engaged in the commission of some additional offences prior to the conduct preceding the threat itself. Steps were taken to actually carry out the threat, and, but for her action in being able to take the chain off from around her neck by pushing her feet against the side of the refrigerator, there was at least a possibility that the result could have been tragic. Although the learned sentencing Judge acknowledged that the threat to kill was extremely serious, I am of the view that the sentence did not adequately reflect the seriousness of the offence.

16 In my view an appropriate starting point would have been a sentence of imprisonment for 6 years. It does not exclude the possibility of a starting point at the maximum, but adopting a starting point of 6 years, but I am of the view that the seriousness of the offence justified only a reduction of 1 year on a count of the plea of guilty, resulting in a sentence, taking into account all other matters, of 5 years.

17 For those reasons I would allow the Crown appeal, set aside the sentence imposed in respect of count 6 and substitute a sentence of imprisonment for 5 years in relation to that count. I would not disturb the direction that the sentences imposed in respect of counts 3, 4 and 5 should be concurrent with that count, but the sentence of 5 years would be cumulative upon the sentences of 5 years imposed in respect of counts 1 and 2 so that the total sentence to be served will be 10 years. The order for eligibility for parole should stand.

18 IPP J: I agree with his Honour the Chief Justice and have nothing further to add.

19 WHITE J: I too agree with what his Honour has said. The offence the subject of count 6, the threat to kill, was in my opinion clearly an example of a worst case of this sort of offence and an appropriate starting point would in fact probably have been the maximum of 7 years, to be reduced for the plea of guilty. I agree with the proposed disposition of this appeal.