Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA

Criminal law - Sentencing - Totality - Appeal against severity of sentence - Seven counts of indecent dealing with, and two counts of sexual penetration of, a child under the age of 13 years - Voluntary disclosure of guilt where guilt would not otherwise have been discovered - Weight to be given in mitigation in such a circumstance

Criminal Appeals Act 2004 (WA)

Sentencing Legislation Amendment and Repeal Act 2003 (WA)

1 STEYTLER P: This is an application for leave to appeal and for an extension of time which is required for that purpose.

2 On 14 August 2007 the appellant pleaded guilty to seven counts of indecent dealing with, and two counts of sexual penetration of, a child under the age of 13 years. He was sentenced to a total term of 4 years and 8 months' imprisonment, with eligibility for parole. He lodged his appeal notice some 2 1/2 weeks out of time. The delay was a consequence of difficulties in obtaining legal advice and also of difficulties which his lawyers had in obtaining transcript. No fault could be ascribed to the appellant in either respect.

3 The offences were committed against two complainants, 'L' and 'J'. They are siblings.

4 Counts 1 to 6 related to L. The offences charged in the first three counts were committed on separate occasions between 31 March 2003 and 1 May 2005. Each of them involved the touching of L's vagina by the appellant with his hand. The offences charged in counts 4 to 6 were committed between 29 April 2003 and 31 March 2006. Counts 5 and 6 charged indecent assaults involving the touching of the complainant's vagina by the appellant with his hand. Count 4 was an offence of penetration, the appellant having penetrated L's vagina with his tongue. The complainant was asleep when this offence was committed. The offence only came to light because the appellant voluntarily disclosed it to the investigating officers. L was between 5 and 8 years old when the six offences were committed.

5 The offences charged in counts 7, 8 and 9 were all committed against J. They were committed on one occasion, somewhere between 7 December 2005 and 31 March 2006. Counts 7 and 8 were charges of indecent dealing. The first of these involved the touching of J's penis and scrotum by the appellant with his hand. The second involved the appellant masturbating J's penis with his hand. The offence charged in count 9 was one of sexual penetration by performing fellatio on J. J was then either 10 or 11 years old.

6 The appellant was aged between 23 and 26 years at the time of the offences. He was the de facto partner of the aunt of the two complainants. The offences took place when the children were staying over at their aunt's house while their parents worked.

7 The appellant was interviewed by police. He made full and open admissions of his offending including, as I have said, the disclosure of the offence the subject of count 4, which could not otherwise have been discovered.

8 The appellant was interviewed by a psychiatrist, Dr Craig Raeside, on 13 November 2006. In a report dated 18 November 2006, Dr Raeside said that the appellant did not appear depressed or unduly anxious and that he did not display any psychotic features. Dr Raeside found no evidence of a current psychiatric disorder or of any psychiatric disorder at the time of the alleged offending. Although the appellant had described longstanding depressed feelings, Dr Raeside said that these did not appear to have impaired his social or academic/occupational functioning. Apart from a history of difficulties with intimate relationships, there was no history to suggest that the appellant had an underlying personality disorder.

9 The appellant expressed a wish to obtain treatment for his sexual offending. Dr Raeside considered that there were a number of positive prognostic features that suggested that the appellant would benefit from that treatment. These were that the appellant acknowledged his wrongdoing, had some insight into his underlying problems and appeared to be well motivated.

10 The appellant also attended a number of appointments with a psychologist, Ms Karen Heseltine. In her report dated 1 August 2007 Ms Heseltine deals, at some length, with the appellant's sexual history. She remarks on what appeared to have been an increasing tendency by the appellant to access sites containing child pornography on the internet. However, she also said that the appellant had reported attempts, more recently, to cease the use of internet pornography (both child pornography and adult pornography) and that he was developing mechanisms to challenge his urges, both cognitively and behaviourally.

11 The appellant also told Ms Heseltine that the offences committed against L were 'months apart', in part because the children did not stay over regularly. He told Ms Heseltine that, during the offending against L, he had noted that she would often 'change positions' which he interpreted to mean that she wanted him to leave her alone, which he 'usually' did. He also indicated that she would sometimes 'squirm', at which point he would 'try again'. He said that, if she continued to squirm, he would cease his behaviour.

12 Ms Heseltine said that, after psycho-education concerning the impact of sexual assault on victims, the appellant appeared to have a greater understanding of the psychological consequences of child sexual abuse. He was also better able to understand the victimisation of children involved in child pornography. The appellant revealed a reasonable commitment to rehabilitation. However, Ms Heseltine said that at no time during the period of psychological intervention did the appellant express explicit remorse for his actions. Instead, she said, he appeared to externalise blame for his actions, discussing matters from his own perspective. She considered that the appellant posed a moderate risk of sexual recidivism. She said that, in order to reduce that risk, he should receive further psychological intervention.

13 A second psychological report, dated 7 August 2007, has been obtained from another psychologist, Mr David Summerton. This contains similar information to that appearing in the other reports. However, it seems that the appellant reported to Mr Summerton that he was angry with himself for having acted as he did towards the children and that he had accessed a range of material about the potential consequences of sexual abuse. He impressed Mr Summerton as having a sound awareness of issues related to victim empathy. Psychometric testing conducted in respect of the appellant revealed that he was 'in the medium low risk category' of sexual re-offending.

14 The appellant produced a number of favourable character references. He had no prior convictions. At the time of sentencing, he was successfully completing a mathematics and computer degree at Flinders University. His marks to date average 75%.

15 In the course of her sentencing remarks, the trial judge described the appellant's offences as 'an appalling breach of trust'. However, she said that there were significant mitigating factors. She referred to the appellant's full admissions to the police and to his disclosure of the offence charged in count 4. She also referred to the appellant's early pleas of guilty which, she said, gave a concrete sign of remorse and concern. She mentioned that the appellant had sought professional assistance and referred to the reports of the psychiatrist and psychologists. She said that the appellant had been assessed as a low risk of re-offending (although, as I have said, Ms Heseltine had assessed him as being a moderate risk and Mr Summerton had assessed him as a medium/low risk). She went on to say that these personal factors, as strong as they were, could not overcome the need for general deterrence.

16 On each of the counts of indecent dealing, the sentencing judge imposed terms of 8 months' imprisonment. She took a starting point of 16 months' imprisonment, allowed a deduction of 25% in respect of the fast-track pleas of guilty and then made the further reduction of one third required by the transitional provisions of the Sentencing Legislation Amendment and Repeal Act 2003 (WA).

17 On each of counts 4 and 9 (the two counts of sexual penetration), she took a starting point of 4 years' imprisonment. Once again, she allowed a 25% deduction for the pleas of guilty and took into account the transitional provisions, arriving at a sentence of 2 years' imprisonment on each count.

18 The sentencing judge ordered that the sentences imposed in respect of counts 1, 4 and 9 were to be served cumulatively, but that the other sentences imposed were to be served concurrently with each other and with the sentences imposed on counts 1, 4 and 9. That gave rise to the total term of 4 years and 8 months' imprisonment imposed. The sentence was ordered to commence on 12 August 2007, when the appellant was taken into custody. As I have said, he was declared to be eligible for parole.

19 There are two grounds of appeal. As developed in oral submissions, they raise two propositions. The first is that the sentence imposed in respect of the offence charged in count 4 was manifestly excessive. The second is that the totality principle was infringed, resulting in a total sentence that was manifestly excessive.

20 The principles upon which an appellate court must approach an appeal from a decision in the exercise of discretion are well established. It is not sufficient that an appellate court may have taken a different view to that of the sentencing judge. It must be shown that the court at first instance has failed properly to exercise its discretion: Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665 [15]. Error may be inferred if the result is unreasonable or unjust: Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321 [3] (Gleeson CJ & Hayne J), [22] (Gaudron & Gummow JJ), [58] (Kirby J). The court may only allow an appeal against sentence if, in its opinion, a different sentence should have been imposed: s 31(4)(a) of the Criminal Appeals Act 2004 (WA).

21 In order to determine whether a sentence is manifestly excessive, it must be viewed in the perspective of the maximum sentence prescribed by law for the crime, the standards of sentencing customarily observed with respect to the crime, the place which the criminal conduct occupies on a scale of seriousness of crimes of that type and the personal circumstances of the offender: Chan v The Queen (1989) 38 A Crim R 337, 342 (Malcolm CJ).

22 It could undoubtedly not ordinarily be said that, in a case involving an act of cunnilingus committed on a young child, a sentence of 2 years' imprisonment was excessive, even allowing for prior good character and an early plea of guilty: Germain v The State of Western Australia [2004] WASCA 293; Little v The Queen [2000] WASCA 87; and Edwards v The Queen [2001] WASCA 263. What sets this case apart is the fact that the offence only came to light as a result of the appellant's voluntary disclosure, in circumstances in which it could not otherwise have come to light. It is well recognised that, when a conviction follows upon a plea of guilty that is itself the result of a voluntary disclosure of guilt by the offender, a further element of leniency enters into the sentencing decision: R v Ellis (1986) 6 NSWLR 603, 604 (Street CJ, Hunt & Allen JJ concurring); and see also Cameron v The Queen [2002] HCA 6; (2002) 209 CLR 339 [65] (Kirby J); Webb v The Queen [2003] WASCA 266 [38] (Malcolm CJ); R v Brazel [2005] VSCA 56; (2005) 153 A Crim R 152 [21] (Callaway JA, Batt JA & Williams AJA concurring); and H v The State of Western Australia [2006] WASCA 53 [13] - [14].

23 In the present case the sentencing judge made no additional allowance for the voluntary disclosure on the part of the appellant, notwithstanding that she mentioned it in the course of her sentencing remarks. A 'fast-track' plea of guilty ordinarily attracts a discount in the region of 20% to 35%: H v The State of Western Australia [9] - [11]. As I have said, she allowed a discount of 25% in the case of each of the offences. I have also said that the sentencing judge imposed a similar penalty of 2 years' imprisonment in respect of the conviction of sexual penetration of J, notwithstanding that that offence had only come to light because J had made a complainant.

24 In my respectful opinion, the failure to allow an additional discount in the case of the offence charged in count 4 amounts to an error in principle, justifying the setting aside of that sentence. In the unusual circumstance of the voluntary disclosure of an offence that could not otherwise have been discovered, and having regard for the other factors in mitigation to which I have earlier referred, it seems to me that an appropriate sentence would be a term of 18 months' imprisonment, after taking into account the transitional provisions. I would consequently allow the appeal on this ground, set aside the sentence imposed in respect of count 4 and impose, in lieu, the sentence of 18 months' imprisonment.

25 It remains necessary to consider the totality issue. That is because, if an appeal succeeds in respect of only one of a number of sentences, it becomes necessary to look, again, at the issue of totality in order to see whether the orders for cumulation and concurrency made by the sentencing judge remain appropriate. In this respect, s 41(2) of the Criminal Appeals Act provides that:

If under this Act an appeal court varies or sets aside a sentence ('sentence A'), it may vary any other sentence -

(a) that was imposed at or after the time when sentence A was imposed; and

(b) that took into account sentence A.

26 It is accepted in this jurisdiction that the totality principle comprises two limbs. The position has recently been summarised by McLure JA in Roffey v The State of Western Australia [2007] WASCA 246 [24] - [26] as follows:

[T]he totality principle ... comprises two limbs. The first limb is that the total effective sentence must bear a proper relationship to the overall criminality involved in all the offences, viewed in their entirety and having regard to the circumstances of the case, including those referable to the offender personally: Woods v The Queen (1994) 14 WAR 341.

The second limb is that the court should not impose a 'crushing' sentence. The word crushing in this context connotes the destruction of any reasonable expectation of a useful life after release: Martino v The State of Western Australia [2006] WASCA 78 [16]. An aggregate sentence may be inappropriately long under the first limb even if it cannot be described as crushing: Jarvis v The Queen (1998) 20 WAR 201, 216 (Anderson J).

The practical effect of the totality principle is ordinarily to arrive at an aggregate sentence that is less than that which would be arrived at by simply adding up all the terms appropriate for the individual offences: R v Holder [1983] 3 NSWLR 245, 260 (Street CJ). A rationale for the totality principle is that there is assumed rehabilitation and reduced demand for retribution after the initial sentences have been served. Where the principle of totality comes into effect, it is of little importance how the ultimate aggregate is made up: R v Holder (260).

27 When considering the application of the totality principle reference to other cases is useful. That is because they provide broad guidance on the question whether a total effective sentence will or will not offend the totality principle. However, it is important to bear in mind that there are limitations in the utility of such comparisons. The circumstances of the offending and of the offender might vary significantly: Roffey [27] (McLure JA).

28 An extensive survey of sentences imposed (after making allowance for the operation of the transitional provisions) in cases involving pleas of guilty to multiple sexual offending against children between 1999 and 2005 was conducted in VIM v The State of Western Australia [2005] WASCA 233; (2005) 31 WAR 1. The 'lower end' cases were found to involve sentence of up to 2 years and 8 months' imprisonment. The most common sentence was around 6 years and 8 months' imprisonment, In most cases there had been at least one count of penile penetration of a child's vagina or anus. The court (Wheeler, Roberts-Smith and Miller JJA) commented [288] that it had recently been said that there had been a 'firming up' of sentences in cases involving sexual offences against children. The court also remarked [295] that cumulation of sentences was to be expected where there is more than one victim.

29 More recently, in L v The State of Western Australia [2007] WASCA 186, Miller JA (Pullin JA & Le Miere AJA concurring) reviewed sentences imposed in cases of sexual offending against children that were towards the lower end of the spectrum (most of them involved single offences of indecent dealing). In L, the appellant had pleaded guilty to six counts of indecent dealing with a child under the age of 13 years. Three counts were committed against one child (K) and three against a second child (M). The appellant was the complainants' uncle. He was 35 years old. K was 9 and M was 7. The offences were committed on two occasions a few days apart. The first two offences occurred when the appellant exposed his penis to the two complainants. He asked if they would touch it. K did so. The appellant then placed his penis back in his trousers and told the two girls to say nothing about the incident. The remaining four offences were committed when the appellant again exposed himself to the complainants. He held his penis and urinated in front of them. Then he masturbated in front of them and ejaculated. The appellant had no prior convictions. He was accepted to have been remorseful. After a successful appeal, and taking into account the cases reviewed, he was sentence to a total term of 2 years' imprisonment, with eligibility for parole.

30 Other cases involving multiple offending that are of some assistance include Stephenson v The Queen [2001] WASCA 98; Edwards; R v Avery [2002] WASCA 136; Webb; and C v The State of Western Australia [2006] WASCA 261.

31 Stephenson involved sexual offending against two children, T and E, then aged 8 and 5 years respectively. The complainants were the children of the offender's de facto spouse. The offender was then 29 or 30 years old and was regarded by the children as their father. He was convicted after a trial. The offending against T involved the touching and rubbing of the boy's penis by the offender. The offending against E involved three separate acts of cunnilingus. There was no use of force. After a successful appeal by the offender, he was sentenced to terms of 4 years' imprisonment (2 years and 8 months under the present regime) in respect of each of the offences committed against E and to a term of 12 months' imprisonment (8 months under the current regime) in respect of the offence of indecent dealing with T. Each of the terms imposed in respect of the offences committed against E was ordered to be served concurrently but the term imposed in respect of the indecent dealing with T was ordered to be served cumulatively upon the other terms. This made up a total of 5 years' imprisonment (3 years and 4 months' imprisonment under the current regime).

32 In Edwards the offender pleaded guilty to two counts of indecently dealing with a child and two counts of sexual penetration of the same child (a girl who had just turned 14). The offender was 31 years old at the time. He had no record of prior sexual offending. The complainant had commenced living with her aunt and the offender, who was the aunt's de facto husband, after an incident in which the complainant's mother had struck her. The offender had, on one occasion, touched the complainant's breasts over her clothing. On another occasion he touched her vagina through her clothing. On a third occasion he penetrated the child by an act of cunnilingus and then proceeded to have penile sex with her. The offender was sentenced to terms of 3 months' imprisonment in respect of each count of indecent dealing, to be served cumulatively upon each other and also cumulatively upon concurrent sentences of 4 years' imprisonment that were imposed in respect of each of the counts of sexual penetration of the child. This gave rise to a total term of 4 years and 6 months' imprisonment (3 years under the present regime). His appeal against sentence was unsuccessful.

33 Avery involved an offender who had pleaded guilty to 16 charges of sexual offences against a 13-year-old girl. The offences involved three separate incidents. The offender, a 20-year-old man, committed four of the offences on 6 March 2000. He twice handled the complainant's breasts, touched her on the vagina and procured her to touch his penis. Three of the offences were committed on 12 March 2000. These involved the offender touching the child's breasts, procuring her to touch his penis and digital penetration of the child's vagina. The remaining offences were committed on 18 March 2000. On that day there were three occasions upon which the offender handled the child's breasts, one upon which he procured her to touch his penis, three instances of digital penetration of the child's vagina, one of cunnilingus and one of penile penetration of the child's vagina. The relationship between the offender and the child had commenced with a meeting over the internet and there had been an element of grooming behaviour. The offender had no prior convictions and his antecedents were good. No force was involved. For each offence of indecent dealing he was sentenced to a term of 12 months' imprisonment. For each offence of sexual penetration he was sentenced to a term of 2 years' imprisonment. All of these sentences were ordered to be served concurrently. After a successful Crown appeal, the individual sentences were left undisturbed (although that imposed in respect of the offence of penile penetration was regarded as lenient), but the sentences imposed in respect of the offending on 18 March 2000, while remaining concurrent with each other, were ordered to be served cumulatively upon the other sentences, giving rise to a total term of 4 years' imprisonment (2 years and 8 months under the present regime).

34 In Webb, the offender was sentenced in respect of seven sexual offences against a 14-year-old child (his step-daughter). The offender, who had pleaded guilty, was 38 years old. He had voluntarily disclosed the commission of some offences that had not been mentioned by the complainant. Of the offences charged, five were instances of indecent dealing, primarily involving touching of the complainant's breasts and vagina. There was some degree of force. The remaining counts were counts of sexual penetration, one involving digital penetration and the other involving cunnilingus. The cunnilingus had involved the use of force. The offender co-operated unconditionally with the police investigation and was genuinely remorseful. He was sentenced to terms of 2 years' imprisonment in respect of each of the counts of indecent

dealing and to terms of 6 years' imprisonment in respect of each of the sexual penetration counts. Orders for cumulation and concurrency were made such that the total term of imprisonment imposed was 8 years (5 years and 4 months under the present regime). Leave to appeal was refused.

35 In C, the offender (a 50-year-old man) was convicted, after a trial, on four counts of sexual offences against a child aged 12 or 13. The offender was in a de facto relationship with the child's mother. The first offence involved the rubbing of the child's vagina with the offender's fingers. The second offence was one of digital penetration (following immediately after the first offence). The third offence involved an attempt by the offender to suck the complainant's breast after he had pulled the top of her bathers down. The fourth offence was committed when the offender offered the complainant $50 if she would let him touch her breasts. She refused. After a successful appeal, the offender was sentenced to terms of 18 months' imprisonment in respect of each of the counts of indecent dealing and a term of 2 years and 6 months' imprisonment in respect of the count of digital penetration. Orders for cumulation and concurrency were made which had the effect that the total term to be served was one of 4 years' imprisonment.

36 In my opinion, this review of the cases sufficiently reveals that a total sentence of 4 years and 2 months' imprisonment is appropriate in the present case. I would consequently leave the orders for cumulation and concurrency made by the sentencing judge undisturbed.

37 I would allow the appeal against the sentence imposed in respect of count 4 on the indictment, set aside the sentence of 2 years' imprisonment imposed by the sentencing judge and impose, in lieu, a sentence of 18 months' imprisonment. I would leave the orders made by the sentencing judge in respect of cumulation and concurrency undisturbed. The result is that the appellant will serve a total of 4 years and 2 months' imprisonment commencing on 12 August 2007. He will remain eligible for parole.