S v The Queen [2004] WASCA 113

Court of Appeal (WA)|2004-05-31|Before: Malcolm CJ

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

CITATION : S -v- THE QUEEN [2004] WASCA 113

Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA

Criminal law and procedure - Sentencing - Plea of guilty to ten counts of indecent dealing with a child between the ages of 13 and 16, seven counts of sexually penetrating a child between the ages of 13 and 16, one count of procuring a child under 16 to engage in sexual behaviour and three counts of breach of a violence restraining order - Applicant a first offender under fasttrack system - Whether total sentence of 10 years manifestly excessive

Sentencing Legislation Amendment and Repeal Act 2003 (WA)

B v The Queen [2002] WASCA 236

Bosworth v The Queen [2004] WASCA 43

Cardile v The Queen [2003] WASCA 72

Chinnery v The Queen [2000] WASCA 295

Dauphin v The Queen [2002] WASCA 104

Grimwood v The Queen [2002] WASCA 135

King v The Queen [2001] WASCA 103

Kirk v The Queen, unreported; CCA SCt of WA; Library No 980087; 17 February 1998

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

Morley v The Queen [2001] WASCA 49

R v Astill (No 2) (1992) 64 A Crim R 289

R v Blurton, unreported; CCA SCt of WA; Library No 960425; 7 August 1996

R v Chilvers [2003] WASCA 87

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

R v Grein [1989] WAR 178

R v Halliday, unreported; CCA SCt of WA; Library No 980143; 3 April 1998

R v Hough [2002] WASCA 42

R v Lippiatt, unreported; CCA SCt of WA; Library No 980065; 17 February 1998

R v Lloyd, unreported; CCA SCt of WA; Library No 960187; 4 April 1996

Strickland v The Queen [2000] WASCA 297

Webb v The Queen [2003] WASCA 266

1 MALCOLM CJ: This was an application for leave to appeal against sentence. On 21 March 2003, the applicant was convicted on his plea of guilty to ten counts of indecent dealing with a child between the ages of 13 and 16 years contrary to s 321(2) of the Criminal Code; seven counts of sexually penetrating a child between the ages of 13 and 16 years; one count of procuring a child between the ages of 13 and 16 years to engage in sexual behaviour contrary to s 321(4) of the Code; and three counts of breaching a violence restraining order (pursuant to a notice under s 32 of the Sentencing Act 1995 WA).

2 Each offence of indecent dealing, the subject of s 321(4) of the Code, involved a child between the ages of 13 and 16 and attracted a maximum sentence of imprisonment for 10 years when read with s 321(8)(b) because the child was under the care, supervision or authority of the applicant, who was living with the complainant's mother in a de facto relationship at the time of the relevant offences. This was also the case in relation to counts 2, 5, 9, 10, 15 and 18.

3 Each of the offences of sexual penetration, the subject of s 321(2) of the Code involving a child over the age of 13 but under the age of 16 who was under the care, supervision or authority of the offender, attracted a maximum sentence of 20 years.

4 The applicant also pleaded not guilty to counts 1, 9 and 12 on the indictment which contained 19 counts in total. Count 1 alleged indecent dealing. Counts 9 and 12 alleged sexual penetration. The applicant pleaded not guilty to the sexual penetration but guilty to indecent dealing in respect of those two counts. The respondent accepted the guilty pleas in full satisfaction of the indictment. In respect of each of the counts of indecent dealing to which the applicant pleaded guilty, namely, counts 2, 3, 4, 5, 9, 10, 12, 13, 15 and 18 the learned Judge sentenced the applicant to imprisonment for 1 year and 6 months on each count.

5 In respect of the sexual penetration counts, sentences of imprisonment for 4 years were imposed in respect of counts 6, 7, 8, 11, 14 and 16. In the case of count 17, a further offence of sexual penetration, the sentence was imprisonment for 5 years which was also the case in relation to count 19. The applicant also pleaded guilty to three offences of breach of a violence restraining order in respect of which he was sentenced to imprisonment for 6 months for each such offence to be served concurrently.

6 The terms imposed for the indecent dealing charges were all to be served concurrently with each other, but cumulative on the terms imposed in respect of counts 6 and 7, which were cumulative on each other. The concurrent sentences which were imposed for breach of the restraining order were also made cumulative on the sentences imposed in respect of counts 6 and 7. All other terms were made concurrent. The end result was a total sentence of imprisonment for 10 years. An order was made that the applicant be made eligible for parole and the commencement of the sentences was backdated to 3 July 2002. The sentences were imposed prior to the commencement of the Sentencing Legislation Amendment and Repeal Act 2003 (WA).

7 Ground 1 of the grounds of appeal, as amended at the hearing, was that:

"The learned trial Judge erred in his assessment of the overall criminality of the offences and where they fell in the scale of offences of that nature."

"The learned trial Judge erred in that the sentence was manifestly excessive having regard to all the circumstances of the case:

Particulars

(a) the offences involved a single victim;

(b) there was no penile penetration;

(c) the applicant pleaded guilty at the earliest opportunity."

9 The learned sentencing Judge dealt with the applicant on the basis that he was a first offender and that his pleas of guilty were in the nature of fast-track pleas.

10 The relevant facts were that the applicant and the complainant's mother commenced a relationship in 1998 which continued until June 2002, and was maintained while the complainant was aged between 13 and 15. Thus, the complainant was aged under 16 at the time the various offences were committed.

11 Count 1 on the indictment was the subject of the plea of not guilty.

12 Count 2 concerned an incident in November 2000 when the applicant grabbed the complainant in her crotch area.

13 The offence the subject of count 3 occurred on Melbourne Cup Day in 2000 when the complainant had truanted from school. This was an incident when the applicant struck the complainant across her crotch area three or four times.

14 Count 4 occurred in March 2001 when, following an argument, the applicant ripped the complainant's skirt off. He denied that he ripped off her underpants, but the learned Chief Judge found that he did take the complainant's underpants from her, which he wished to keep so that he could smell them. This was the first occasion upon which the applicant exhibited perverse behaviour. Count 5 related to an incident in which the applicant touched the complainant's breast.

15 The first offence involving penetration was the subject of count 6 which occurred in February 2002. Following a disagreement with the complainant, the applicant placed his hand down the back of the complainant's pyjama pants and pushed his finger into her anus. Count 7 also involved an incident in February 2002. While the offender was driving the complainant to school, he pushed his fingers into the lips of her vagina and then pushed his fingers into her anus, which constituted the offence the subject of count 8. He was said to have done this a number of times.

16 Count 9 also involved a count of digital penetration of the vagina following an argument when the complainant said that her mother had caught the offender smelling the complainant's chair. Counts 10 and 11 arose out of an incident when the complainant and the offender were sitting in the front of the car. He first sucked on her breasts and then inserted his finger into her anus.

17 The offence the subject of count 12 involved the applicant committing sexual penetration of the complainant by penetrating her anus with his tongue. He then required the complainant to go into the toilet, giving her two ice-cream containers, telling her to urinate in one of them and defecate in the other. As the learned Judge found:

"The offender then appears to have dealt in some way with the complainant's urine, by putting his penis into the urine container. Urine was apparently splashed around by [the applicant] and it is said he gargled some of it at the time."

18 Counts 13 and 14 involved an incident when the applicant was driving the complainant home from work. He sucked her breasts, smelled her anus and then pushed his finger into her anus.

19 Count 15 occurred on 21 May 2002 after the applicant had driven the complainant home. He made her go into the bedroom and take off her pants and underpants. He then smelled her vaginal area.

20 At that time, he had a broken hand and could not shower properly. He required the complainant to assist him in the shower. While in the shower, he required the complainant to masturbate him. He then required her to place her finger into his anus and move it around. Those two incidents were the subject of counts 15 and 16. This conduct was also associated with the complainant being required to void urine and faeces into a plastic container for the applicant's "bizarre purposes" as the learned Chief Judge put it.

21 Count 17 involved an incident between May and June 2002 when the applicant drove the complainant to her modelling school. In the course of this journey, the applicant pushed the complainant's head on to his crotch and forced her to perform fellatio upon him.

22 Count 18 arose out of an event in late June 2002 when the applicant appears to have been simulating penile vaginal sex and during which the applicant foreshadowed that "real sex", namely, sexual intercourse would commence after she turned 16 in October 2002. The offence the subject of count 19 followed the incident the subject of count 18 when the applicant required the complainant to perform fellatio upon him for some several minutes.

23 Subsequently, on 22 June 2002, the applicant was served with a violence restraining order which had been taken out by the complainant in the Bunbury Court of Petty Sessions. The terms of that order required him not to communicate or attempt to communicate with the complainant by whatever means. The order also prohibited the applicant from approaching within 10 metres of the complainant. However, on Monday, 1 July 2002, the complainant was at the high school she attended. The applicant arrived at about 2 pm to collect her. The complainant got into the vehicle and was driven by the applicant to his home where they remained for about an hour. The complainant and the applicant got into the applicant's motor vehicle and drove to the bus station where the complainant was dropped off. The complainant said that she agreed to go with the applicant in his vehicle because she was afraid of the consequences if she declined his invitation. These events gave rise to count 1 on the s 32 notice.

24 So far as count 2 on the s 32 notice was concerned, at about 6 pm on 2 July 2002, the complainant was dropped off at the location of her modelling class in Bunbury. As she was about to enter the front door of the premises, the applicant approached her and stood about 11/2 metres away from her. He began talking to her. The complainant reminded the applicant about the existence of the restraining order. She then walked off to her class and the applicant left in his vehicle.

25 On 4 July 2002, the applicant again breached the violence restraining order when he attempted to make telephone contact with the complainant. This was the subject of count 3 on the s 32 notice. The facts were that on 4 July 2002, between 3.30 and 4 pm, a close friend of the complainant received a telephone call at her home from the applicant. She had previously met and spoken to the applicant. He identified himself to her. He asked her whether she had telephoned the complainant. The friend said that she had been unable to do so. The applicant questioned why she had not done so and suggested to her that she telephone the complainant and set her up on the telephone so that they could have a three-way conversation. The complainant's friend declined and hung up.

26 The applicant was subsequently charged with breaching the violence restraining order to which he pleaded guilty. The maximum penalty for such a breach is a fine of $6000 or imprisonment for 18 months.

27 The learned sentencing Judge had put before him a number of character references stating that in the opinion of the referees, the applicant was a trustworthy, reliable and honest person who came from a large law-abiding and close-knit family.

28 In a psychiatric report dated 8 November 2002 from Dr Stephen Proud, a Consultant Psychiatrist, it was reported that the applicant was a 35-year-old single man, the youngest of five brothers. He had a happy and stable childhood and was exposed to no trauma. He left school after completing year 10 and commenced an electrical apprenticeship. Both at school and when he was working, he described himself as well-behaved with no problems with the law or the use of illegal substances. He had generous and kind parents. He had no formal sexual education, but received informal education from his brothers and relatives, none of which was inappropriate.

29 Dr Proud described the history of the applicant's relationships with girlfriends involving a history of sexual relationships with a number of girls and women from the time he was aged 14. In 1998, he met the complainant's mother S, who had two daughters one of which was the complainant and the other was R. The complainant was then aged 12 and R then aged five. There were also two sons aged 16 and 14. The applicant adopted a role he described as "a father to the children" and became further involved in parenting the children, especially the complainant and her younger sister.

30 From mid 2001, the applicant wrote love letters to the complainant. The complainant turned 15 in October 2001. The applicant told Dr Proud that he first began to physically touch the complainant affectionately in July or August 2001. This began with him asking the complainant, "Are you interested in kissing me?" The kiss followed an affirmative answer from the complainant. Physical contact remained at the touching level through to the end of October 2001. The touching became more sensual in November and December 2001, involving touching the complainant's breasts, bottom and crotch on the outside of her clothes.

31 The applicant told Dr Proud that throughout this period, he insisted that he would not proceed if the complainant did not want this, but that "she never indicated strongly that she did not want it".

32 At the same time, he could not say categorically that the complainant "verbally, clearly and directly consented to the physical touching", although he believed that she did not object.

33 The letters that the applicant wrote to the complainant commenced with a letter in August-September 2001 in which he expressed the hope "more or less" that "I hope we can have sex one day". In November 2001, he kissed the complainant's breasts for the first time. It was in December 2001 that the coprophiliac behaviour commenced.

34 A psychological report dated 24 September 2002 prepared for the prosecution by Cinzia Zuin, Clinical Supervisor of the Offender Programs Branch, referred to the applicant's "significant distortion, minimisation and justification of his offending behaviour" as needing to be a major focus of treatment:

"... as his claims of knowing the behaviour was wrong pale in comparison to his strong belief that a romantic relationship existed between him and the victim and that he is more concerned about conveying this rather than recognising the gravity and impact of his actions. His placement of much responsibility for determining the nature and extent of a relationship upon the victim is also concerning as he has essentially elevated her status to that of a consenting adult of equal power to him. A failure to acknowledge such a power imbalance is also concerning and needs to be addressed during treatment."

35 Ms Zuin said that the applicant presented as a "somewhat immature" man with "a tendency to whine and whimper when he thought he had said something that might aggravate his current situation." He referred to his de facto, the victim's mother, as " 'mum' almost as if he were her child and that he and the victim had been caught out doing something naughty". He placed a great deal of responsibility for the relationship he had with the victim on the victim herself. This totally ignored the fact that she was underage and that she was essentially his de facto daughter. He viewed the complainant and her mother as two females competing for his affection.

36 According to the report, there was no evidence that the complainant reciprocated the applicant's feelings or was interested in engaging in a relationship with him. For example, he told the complainant that he liked listening to her going to the toilet because he could not touch her. She told her mother about this who became angry with the applicant who, in turn, chastised the complainant.

37 While the applicant acknowledged remorse for his actions, he continued to maintain that the complainant was a willing participant. He said he desisted from sexual intercourse with her because he thought it might put too much pressure on her. I would interpolate there that he was conscious that she was under the age of consent and made it clear that, as soon as she was of age, he intended to have intercourse with her. The report noted that the applicant was adamant that he was "genuinely attracted to the victim and could see a future between them and that [his conduct] was not purely for sexual gratification". This demonstrates a failure to recognise that his behaviour was highly inappropriate and illegal in a context where he was conscious that the age of the complainant was below the age of consent.

38 The same report noted that, with respect to the breach of the violence restraining order, the applicant believed that the complainant's mother had initiated the proceedings. Consequently, he breached the order because he did not believe that the complainant was a party to it. This was regarded by Ms Zuin as evidence of the applicant's:

"... gross distortion of the nature of his relationship with the victim and his failure to accept that she was not the willing participant he thought she was."

39 The applicant was assessed as at a medium or low risk of reoffending in a like manner, based purely on the absence of any prior convictions for offences of a sexual nature and "the extra-familial nature of his relationship with the victim". The applicant had only one prior conviction for driving with a blood alcohol content in excess of 0.08.

40 While the applicant expressed remorse for his behaviour, Ms Zuin concluded that he lacked awareness and insight into his behaviour and abused the trust placed in him by his former partner and her children. To his credit, the applicant expressed a willingness to participate in a treatment programme.

41 It was commented by Ms Zuin, however, that the appellant's :

"... gross distortion, minimisation and justification of his behaviour is concerning as it reflects a lack of insight and awareness of the implication and impact of his actions which suggest that he may pose a more significant risk than an actuarial risk rating would indicate. Furthermore, while the victim was not his biological daughter, [the applicant] was essentially in a parenting role and this has been totally disregarded and abused by him when developing and acting on a sexual attraction to the victim. Finally, the assessed risk rating may be altered depending on the outcome of his trial for sexual offences against the victim's younger sister as this may suggest a more entrenched level of deviancy which may not accord with his claim of being romantically attracted to the victim of the current offences."

42 The relevant report concludes that the applicant:

"... is a 35-year-old man convicted of having a sexual relationship with the 15-year-old daughter of his former partner and of breaching a violence restraining order on two occasions by contacting the victim. Although accepting responsibility for his behaviour [the applicant] has engaged in significant distortion, minimisation and justification for his behaviour which is extremely concerning. Convinced that the victim was as romantically interested in him as he was in her [the applicant] fails to understand the impact of his behaviour or that he placed the victim under a lot of pressure by giving her responsibility for determining the extent and nature of their relationship but at the same time giving her little choice about engaging in a sexual relationship with him.

[The applicant] has expressed remorse for his behaviour but it is clear he lacks awareness and insight into his behaviour and that he abused the trust placed in him by his former partner and children. [The applicant] has expressed a willingness to engage in treatment to address his offending behaviour which renders him suitable for inclusion in a Sex Offender Treatment Programme as facilitated by the Department of Justice. Following sentencing an assessment will be conducted to determine the most appropriate level of treatment."

43 As the learned Chief Judge commented in his sentencing remarks:

"I now turn to the nature of the conduct in question. It does appear that the offender expressed himself as not intending to engage in actual sexual intercourse with the complainant until such time as she turned 16, but the conduct to which I have previously referred does illustrate a very significant degree of perversion and deviance in the coprophiliac aspect to the behaviour, even though I note, but I do not accept, defence submissions that the sexual acts were not of the most serious kind in that there is no penile penetration, no ejaculation and no risk of pregnancy.

The offender is, of course, a grown, mature man, sexually experienced, and the complainant is simply, when all is said and done, a child. Consent is not an issue here. He was in a position of trust with respect to the victim and his relationship with the complainant's mother certainly enabled him to commit the various offences. With respect to coercive or forceful behaviour, there does appear to be some elements of this.

When it comes to reflecting upon the circumstances of the complainant and the degree to which the complainant was taken advantage of, I never like to speak about the corruption of the complainant, but there was certainly a tendency for the offender's bizarre and coprophiliac conduct, quite apart from his sexual activities, to corrupt the complainant."

44 The Chief Judge noted that the offences were "constantly repeated" over a period of time. There was some doubt whether the applicant showed any remorse, as both the psychiatrist and the psychologist doubted whether the applicant really accepted that what he had done was other than indulging in a romantic interlude. His Honour went on to say:

"The offender does not have youth on his side. It is noted that during the relationship with the offender the complainant was given presents and gifts to bolster what the offender saw as their romantic relationship. I do have a victim impact statement. I note senior counsel's observations as to the weight of the victim impact statement and I have approached it guardedly.

It does, however, take no imagination to see that the offender's conduct, particularly in its bizarre manifestations, must have had an adverse effect upon the growing complainant. The offender has no relevant prior history. I do note that the offences involving the violence restraining orders are concerning.

What must be acknowledged as far as the offender is concerned, and acknowledged very clearly, is that he has pleaded guilty at an early opportunity and for this he must receive appropriate credit. By his plea the offender has saved the complainant the trauma of what undoubtedly would have been a distressing trial for all concerned. As to the eventual penalties, I must state that in my judgment today the two-tier method of sentencing is not appropriate in this instance when dealing with 18 counts of sexual conduct; it is, I believe, an inappropriate way of proceeding.

But what I do wish to say, with as much emphasis as I can, is that the pleas of guilty by the offender in this instance have resounded in the eventual sentences and have resounded significantly to the order of one-third."

45 His Honour then proceeded to impose the sentences the subject of the application for leave to appeal.

47 It was contended that the learned Chief Judge erred in his assessment of the overall criminality of the offences and where they fell in the scale of offences of this nature. It was also contended that the total of the sentences was manifestly excessive in all of the circumstances given that there was a single victim, no penile penetration and that the applicant pleaded guilty at the first opportunity. The learned Chief Judge accepted that the applicant was essentially a first offender who had pleaded guilty at an early opportunity, after some discussions with the prosecution, which led to the Crown abandoning count 1 on the indictment and accepting the pleas of guilty to the remaining counts on the indictment including, as previously mentioned, pleas of guilty to indecent dealing in respect of two counts of sexual penetration.

48 As has been seen, the learned Chief Judge made it clear that he was taking into account the pleas of guilty by the applicant and this had resulted in a reduction of the sentences which would have otherwise been imposed "to the order of one-third". Consequently, it was implicit, so it was contended that, but for the early pleas of guilty and other circumstances of mitigation, the total sentence imposed would have been in the vicinity of 15 years. Such a total sentence, albeit as a starting point, was said on behalf of the applicant to be manifestly excessive in the circumstances.

49 In my opinion, it is not appropriate on an appeal against sentence to determine whether a "starting point" was appropriate. It is the actual sentence imposed with which the Court of Criminal Appeal is concerned in an appeal pursuant to s 688(1) against "any punishment imposed". The Court must be persuaded that "a different sentence should have been passed" under s 689(3) before it can interfere with the sentence imposed.

50 The task of the Judge in a case where there are multiple offences is to determine an appropriate sentence for each individual offence, having regard to the relevant circumstances and sentencing considerations: Mill v The Queen (1998) 166 CLR 59; Pearce v The Queen (1998) 194 CLR 610 at [45] per McHugh, Hayne and Callinan JJ. In this context, the approach is one which is careful to avoid double punishment: Gray v Motor Accident Commission (1998) 196 CLR 1 at [38] - [49] per Gleeson CJ, McHugh, Gummow and Hayne JJ; and at [95] per Kirby J. In AB v The Queen [1999] HCA 46; (1999) 198 CLR 111 at [102], Kirby J noted that:

"... Pearce v The Queen [supra] has been interpreted (Wood, 'Sentencing Review', Judicial Officers' Bulletin vol 11 (1999) 33, at p35), rightly in my view, as a 'call for a greater degree of transparency on the part of the sentencing judge in exposing the manner in which, and the reasons by which, the aggregate sentence is arrived at'. Judges have long since accepted the burden of adjusting their sentences for various considerations. ... It is always necessary to look back at the product of such adjustments for the requirement of the principle of totality and other applicable principles of sentencing. It is too late (and undesirable) to return to unexplained judicial intuition."

51 In the present case, the question is whether, and to what extent, any of the individual sentences for particular offences were manifestly excessive and, if not, whether the structuring of such sentences by cumulation or concurrency has resulted in a total sentence which infringes the totality principle.

52 In D v The Queen [2003] WASCA 33, this Court granted leave to appeal and allowed an appeal against sentence in a case in which the sentencing Judge had imposed sentences totalling 14 years on the appellant, in respect of a number of sexual offences, namely, one count of having a sexual relationship with a child under the age of 16 years, four counts of indecently dealing with a child between the ages of 13 and 16 years; and two counts of sexually penetrating a child between the ages of 13 and 16 years. The child the subject of count 1 was nine years of age at the time of the offences and the child the subject of the other counts was aged 14.

53 The sentences in D v The Queen (supra) had been structured on the basis that the sentence for the sexual relationship (count 1) was 7 years; with sentences of 3 years on the four counts of indecent dealing being counts 2, 3, 4 and 6; and 7 years on each of the counts of sexual penetration, being counts 5 and 7. The sentences on counts 2 to 7 were directed to be served concurrently with each other, but cumulatively on the sentence imposed in respect of count 1. There were two victims involved. The first was JAL with whom the appellant had a sexual relationship at a time when she was aged 9 between 1 November 2001 and 31 January 2002. On three different occasions, the appellant interfered with JAL while she and her sister were staying a the appellant's home. The first occasion involved the appellant lying on a mattress where JAL was sleeping and putting his hand inside her pyjama pants and over the area of her vagina. On the second occasion, the appellant was again on the mattress, put his hand inside JAL's pyjama pants and put his finger in her vagina for a short time. On the third occasion, he lay on the mattress next to JAL and took her hand and placed it onto his penis.

54 The remaining counts on the indictment concerned the complainant ELL. The facts related by the Crown prosecutor were stated by Miller J at [8] as follows:

"On count 2 the offence occurred between 1 and 20 January 2002 when the appellant drove ELL to Mandurah for the purpose of crabbing. Whilst sitting on the tailgate of his vehicle he touched her on the breasts outside her clothing. Count 3 occurred between 25 and 26 January 2002 when the appellant drove ELL to a house in Cervantes for a fishing weekend with friends. Whilst ELL was in bed later in the evening, the appellant entered the bedroom, woke her and touched her outside the vagina on the outside of her pants. Counts 4, 5, 6 and 7 were a continuation of the incident to which count 3 refers. The facts as recited by the Crown prosecutor in relation to these counts were as follows:

'Count 4: he then removed the sleeping bag, rolled the complainant back towards him and then pushed her legs apart and placed a hand beneath the complainant's pants over her vagina area. He moved his hands further between the complainant's legs, removed her tampon and got back off the bed. Count 5: he then returned to the bed with a yellow torch, pulled the complainant's shorts and underpants aside and shone the torch between her legs. The offender then inserted a finger into the complainant's vagina for a short time. Count 6: the offender then moved his hand up under the complainant's top and over her right breast area and pushed her legs open again with his hands. Count 7: he then placed his head between the complainant's legs and began to perform cunnilingus on her. The complainant jumped off the bed and left the room.' "

55 The Court restructured the sentences imposed below by varying them to result in 6 years on count 1; 12 months count 2; 18 months count 3; 3 years count 4; 5 years count 5; 18 months count 6 and 5 years count 7. The way in which the trial Judge had accumulated the sentences was thought appropriate, and the end result was that the Court reduced the sentence to 11 years.

56 The approach to sentencing in cases such as the present was reviewed nearly a decade ago by Anderson J (with whom Malcolm CJ and Seaman J agreed) in Woods v The Queen (1994) 14 WAR 341. In the period since then, there has been a "firming up" of sentences for sexual assaults and, in particular, for sexual assaults against children. When Woods was decided, reference was made to a number of examples by Anderson J at 354 - 355 in which intra family sexual assaults had attracted sentences of 8 years or more in total. As his Honour noted at 354, such cases were:

"... often, but not always, cases where more than one child was victimised or where there had been multiple offending over an extended period and the offending has included sexual penetration of one form or another, or where some degree of violence, cruelty, aggression or threats have been employed. In some cases such as the Podirsky case, all of these features have been involved and these will generally attract very heavy sentences. In other cases all of these features will be present."

57 His Honour then gave examples of cases when sentences of 8 years or more had been imposed, including R v Petchell, unreported; CCA SCt of WA; Library No 930346; 16 June 1993; Jarvis v The Queen (1993) 20 WAR 201; R v Fancourt, unreported; CCA SCt of WA; Library No 8319; 18 June 1990. As Anderson J said in Woods at 359 that:

"The question for this Court is whether, in the light of sentences commonly imposed for serious cases of prolonged sexual molestation within the family environment, involving sexual penetration of one form or another against two children of the family, an effective sentence of 11 years' imprisonment ought to be reduced."

58 I accept that the present case was different from Woods in that in this case there was no penile penetration while that in Woods was not complete, but went to the stage of inducing pain. Anderson J went on to say at 359:

"Repeated offending of that kind over an extended period against a nine-year-old girl, of itself warranted a custodial term of 7 or 8 years, notwithstanding all of the mitigatory circumstances that could be put in favour of the applicant."

59 Particular reliance was placed by counsel for the applicant on the decision in Steuart v The Queen, unreported; CCA SCt of WA; Library No 950486; 15 September 1995. In that case, the offender had been convicted of one count of indecent dealing, one count of having a sexual relationship with a child based upon multiple digital penetration and one count of digital penetration involving his daughter then aged between 3 and 4. The offences were committed over a period of nine months. He was sentenced to concurrent terms of imprisonment for 1 year for indecent dealing, 8 years and 6 months for the sexual relationship and 5 years for the digital penetration. The offender was granted leave to appeal against the sentences of 8 years and 6 months and 5 years. These were held to be manifestly excessive and reduced to 6 years and 2 years respectively to be served concurrently. In my opinion, given the "firming up" of sentences for offences of this kind in the last eight or nine years, that decision is not presently of much relevance.

60 Reference was also made to Dempsey v The Queen, unreported; CCA SCt of WA; Library No 960059; 9 February 1996. In that case, the offender pleaded guilty to one count of sexual penetration of a child between the ages of 13 and 16 years and six counts of sexual penetration of a child between the ages of 13 and 16 years. The count of attempted sexual penetration and two of the counts of sexual penetration were alleged to have been committed in December 1992 on a male child and the remaining four counts of sexual penetration were alleged to have been committed in May 1994 on a female child. The offender in that case was aged 22 at the time the offences were committed on the male child who was aged just over 14. At the time of the offences against the female child, the offender was aged 23 and the girl concerned was aged 14 years and 10 months. In relation to the first count against the male complainant involving the attempt, his Honour indicated that the sentence would have been for 3 years, but deducted 12 months for the plea of guilty, 3 months for time spent in custody and 6 months for other mitigating circumstances. The end result was a sentence of 15 months. The same sentence was imposed in relation to the other counts involving the male complainant which were directed to be served concurrently.

61 In relation to the female complainant, the offender was sentenced to imprisonment for 3 years on each offence to be served concurrently, but cumulatively on the concurrent sentence imposed in respect of the male complainant.

62 In my opinion, the sentences imposed in Dempsey are of no relevance to the present case which is completely different so far as the factual background and the respective ages of the victims are concerned. Counsel for the applicant also placed reliance on what Murray J said in Dempsey (supra) at 6 - 7 and conveniently listed a number of relevant considerations in the context of sentencing for sexual offences.

63 In the present case, the nature of the conduct evinced a significant degree of perversion and deviance. There was a wide disparity of age between the offender and the victim. The offender was in a position of trust or authority with respect to the victim as the result of his de facto relationship with the mother which put him into a position where he was able to commit the offences. There was, however, no apparent substantial element of coercive or forceful behaviour on the part of the applicant.

64 It was the fact that the victim was a very young girl who was taken advantage of and her corruption was contributed to by the commission of the offences, particularly those involving coprophilia. The offences were repeated over a significant period of time. While there was a degree of remorse displayed, the pre-sentence and psychological reports were not favourable.

65 The offender was a young man who was in a de facto relationship with the complainant's mother. The establishment of the relationship with the complainant involved a distortion of the applicant's role as a father. The offences had a substantial impact upon the victim. The applicant had no relevant prior criminal history.

66 The prevalence of offences of this kind is a matter of concern and there is a heightened need to seek to achieve the protection of the community and particularly young persons from the commission of such offences, whether with or without their consent. In this case, the offences all occurred while the victim was under the age of 16 and did not have the capacity for informed consent.

67 In my opinion, notwithstanding that it involved one count of indecent dealing and seven counts of penile penetration of a de facto child under the age of 16, except for the last of the latter offences and the sentences were imposed after trial, the decision in Boudville v The Queen [2001] WASCA 133 is of some assistance in the present case. The facts there were that the indecent dealing with the offender's de facto female child under the age of 16 years was contrary to s 329(4) of the Criminal Code. The seven counts of sexual penetration of the complainant, being the female child whom he well knew was his de facto child were contrary to s 329(2) of the Code for which the maximum penalty was 20 years, while the maximum penalty for a single offence of indecent dealing with a child under the age of 16, where the child is a de facto child is imprisonment for 10 years.

68 In Boudville at [32] in a judgment with which Wallwork and Murray JJ agreed, I said:

"A Court of Criminal Appeal may not substitute its own opinion for that of the sentencing Judge merely because the appellate court would have exercised its discretion in a manner different from the manner in which the sentencing Judge exercised his or her discretion. There must be some identifiable error in the exercise of discretion before the Court can interfere: Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665 at [15]. In my opinion, in passing sentence, the sentencing Judge gave appropriate weight to all of the applicant's antecedents and the relevant circumstances. I am quite unpersuaded that, whether looked at individually or collectively, the sentences imposed were manifestly excessive. Where there are numerous offences of aggravated sexual assault by penile penetration involving a girl under the age of 16 years, total sentences within the range of nine to 11 years are commonly imposed: D v The Queen [2000] WASCA 137 at [11] - [13] per Miller J. Sexual assaults on young children within a family have attracted sentences of between eight and 12 years or more in total, even where the offender has pleaded guilty and demonstrated remorse: Woods v The Queen (1994) 14 WAR 341 at 354 - 357 per Anderson J; and see Johnston v The Queen, supra, per Anderson J at 5; and Trescuri v R [1999] WASCA 172 at 6 - 7 per Anderson J ( with whom White and Ipp JJ agreed). In my opinion, given the circumstances of this case which I have outlined, the sentences imposed, whether looked at individually or in their totality, were well within the range of a sound exercise of the sentencing discretion."

69 In LSC v The Queen [2003] WASCA 303, the judgment in which was delivered on 5 December 2003, Murray ACJ said at [22] - [23]:

"22. As to the sexual penetration offences, I would take the view that digital penetration or penetration by the insertion of objects, in the circumstances of this case, is somewhat less serious and requires a lesser sentence than in respect of acts of penile penetration, but I would not distinguish between these forms of penetration of the child's anus except upon the ground of the complainant's age. Further, I would regard the acts of sexual penetration by cunnilingus and fellatio as being on a par with these forms of penetration, by finger or the insertion of objects.

23. Finally, I consider that the acts of penile penetration, whether of the child's vagina or her anus, are the most serious group of offences. They represent the ultimate sexual indignity and invasion of the child's person, but I think the gravity of those offences is not reduced by the fact that the penetration was of the child's vagina rather than her anus. Again, I would only distinguish in relation to the relative seriousness of such acts of penetration on the ground of the complainant's age."

70 While it is true that it has in the past been generally accepted that offences of digital penetration of the vagina are not regarded as being as serious as penile penetration, the very young age of the victim may be an aggravating circumstance. In my opinion, it remains that some acts of digital penetration are more serious than others, as has already been seen.

71 In the present case, no complaint was made by the applicant about the individual sentences of 4 years which were imposed. The issue was one of totality in the context of the establishment by the applicant with the complainant of a continuing sexual relationship. In my opinion, in the light of the evidence which has been presented in cases in recent times and the relevant literature on the subject, Courts now understand much better the extremely damaging effects which repeated acts of a sexual nature in circumstances similar to those in this case have on the victim. They leave emotional and other scars which may last a lifetime. It is in that context that there has been a firming up of sentences as the judiciary and the community have come to understand the long-term effects of sexual assaults of this kind. So much was rightly accepted by Senior Counsel for the applicant. It was contended, however, that the learned Judge was in error in responding to the written submissions on behalf of the applicant at the time of sentencing, that he noted but did not accept "defence submissions that the sexual acts were not of the most serious kind in that there is no penile penetration, no ejaculation and no risk of pregnancy".

72 In my opinion, the learned Chief Judge was not equating digital penetration with penile penetration. He was suggesting that in the context

of this case, the nature of the offences, the disparity in age between the parties, the applicant's abuse of his position of trust and the nature of his relationship with the complainant's mother enabled him to commit the offences. There were, as the Chief Judge put it, "some elements" of "coercive or forceful behaviour" and "a tendency for the offender's bizarre and coprophiliac conduct, quite apart from his sexual activities, to corrupt the complainant". In my opinion, these comments were justified in the particular circumstances of this case. As counsel for the applicant conceded, the counts of indecent dealing in this case were at the top of the range of seriousness of offences of that kind because of the degree of perversion and the involvement of coprophilia. In my opinion, these aggravating circumstances were appropriately taken into account by the learned Judge.

73 In my opinion, given the nature of the offences, the degree of perversion involved in a number of the offences, the disparity in age and the relationship between the applicant and the victim, it is quite impossible to accept that the sentences imposed in this case, whether looked at individually or collectively were manifestly excessive. If anything, the end result of the sentencing process, taking into account the gross breach of trust involved and the nature and number of the offences, the sentences imposed were an entirely appropriate, if not moderate, sentencing response to the particular course of criminal and perverted behaviour for which the applicant came to be sentenced. For these reasons, while I would grant the applicant leave to appeal against sentence, I would dismiss the appeal.

74 TEMPLEMAN J: I have had the advantage of reading in draft the reasons of the Chief Justice. I agree, for the reasons given by his Honour, that although the applicant should be given leave to appeal, his appeal should be dismissed.

75 MILLER J: I have had the opportunity of reading in draft the reasons for judgment of Malcolm CJ. I agree with those reasons and I would grant leave to appeal against sentence but dismiss the appeal.

Legislation Amendment and Repeal Act 2003

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