Court of Appeal (WA)|2007-05-29|Before: Steytler P

1 STEYTLER P: The State appeals against the sentences imposed on the respondent in the District Court of Western Australia arising out of his commission of a number of sexual offences in respect of three children. He was convicted on three counts of aggravated sexual penetration without consent in contravention of s 326 of the Criminal Code (WA), the circumstance of aggravation in each case being the penetration of a child aged between 13 and 16 years. He was also convicted of 10 counts of sexual penetration of a child aged between 13 and 16 years in contravention of s 321(2) of the Code. He was sentenced to a total term of 6 years' imprisonment with eligibility for parole.

2 The respondent lived at a house in Kingsley. He met two of the complainants, "L" and "H", by accessing chat rooms on the internet through his home computer. L subsequently spoke to the respondent by telephone. She told him her age. She was 14 years old. The respondent was then 31 years old. He told her that he worked for "child abuse people". This was untrue.

4 H was the girlfriend of the young man who had been staying with the respondent. She eventually became the respondent's girlfriend. He began telling her that he loved her and wanted to be with her. She told him that this could not happen because she was only 14 years old. He was persistent in his requests. They eventually had sexual intercourse. This occurred on four or five occasions. H gave evidence concerning two of these occasions, which gave rise to counts 3 and 4 on the indictment. The offence charged in count 4 was committed when H was at the respondent's house. She told him that she could no longer be in a relationship with him because of the disparity in their ages. The respondent was dismissive of this. He pushed H by her shoulders onto his bed. He lay on top of her, using his leg to push her legs apart. He then pulled up her skirt and sexually penetrated her without her consent (count 4). He was not wearing a condom at the time and he ejaculated while still penetrating H.

5 The remaining counts concerned a 15-year-old girl, "R". The respondent first came into contact with her, too, by means of a chat room on the internet. At first, she told him that she was 16 years old. When she met the respondent in person, she told him that she was 15 years old. The two of them began a relationship in the course of which the respondent had sexual intercourse with R on some 15 occasions over a period of approximately a month. Five of these occasions became the subject of counts 5, 6, 9, 12 and 13 on the indictment. The remaining counts (counts 7, 8, 10 and 11) involved acts of fellatio or cunnilingus.

6 When interviewed by the police, the respondent denied any wrongdoing. He told them that R had told him that she was 16 years old. He said that he had problems with his memory and could only recall having had sexual intercourse with her on one occasion, although he conceded that there might have been others. He said that he had no recollection of R ever performing fellatio upon him. While he admitted to having met L and H, and that he knew how old they were, he denied committing any offences against them. He subsequently pleaded not guilty to all 13 counts on the indictment and was convicted on all counts after a trial by jury.

7 The total sentence of 6 years' imprisonment imposed upon the respondent was made up of concurrent terms of 16 months' imprisonment in respect of counts 1 and 2, terms of 2 years' imprisonment and 2 years and 8 months' imprisonment respectively on counts 3 and 4, to be served concurrently with each other but cumulatively upon the sentence imposed in respect of count 1, terms of 2 years' imprisonment in respect of each of counts 5, 6, 9, 12 and 13, to be served concurrently with each other but cumulatively upon the other sentences imposed, and terms of 16 months' imprisonment in respect of each of counts 7, 8, 10 and 11 to be served concurrently with each other and with the sentences imposed on counts 5, 6, 9, 12 and 13, but cumulatively upon the sentences imposed in respect of counts 1 to 4.

8 It is trite that in a sentencing appeal, whether or not brought by the State, an appellate court may not substitute its own opinion for that of the sentencing judge merely because it would have exercised its discretion differently. There must be an error that justifies intervention: Lowndes v The Queen (1999) 195 CLR 665 at [15]; Dinsdale v The Queen (2000) 202 CLR 321 at [3] per Gleeson CJ and Hayne J, [21] - [22] per Gaudron and Gummow JJ and [58] per Kirby J.

9 State or Crown appeals are of course in a special category in the sense that they should be brought only in rare and exceptional cases to establish some point of principle: Everett v The Queen (1994) 181 CLR 295 at 299 - 300; R v Clarke [1996] 2 VR 520 at 522 per Charles JA, with whom Winneke P and Hayne JA agreed. Occasions may arise for the bringing of a Crown appeal where a sentence is so manifestly inadequate as to constitute error in principle (Everett at 300; Clarke at 522) or to ensure, so far as the subject matter permits, that there will be uniformity in sentencing (Everett at 306). Other applicable principles have been set out by this Court in The State of Western Australia v Houston [2005] WASCA 167 at [52] - [54] and need not be recited here, save to quote what was said by Kirby J at [62] in Dinsdale, as follows:

"For reasons of legal history and policy, the position of Crown appeals against sentence has long been regarded, in Australia and elsewhere, as being in a class somewhat different from that of an appeal against sentence by a convicted offender. When first introduced, Crown appeals were considered to cut across 'time-honoured concepts' ... of the administration of criminal justice in common law legal systems. For this reason, it has sometimes been said that, as a 'matter of principle' ... such appeals should be a comparative rarity. The attitude of restraint reflected in such remarks has often been justified on the basis that a Crown appeal against sentence puts the prisoner in jeopardy of punishment for a second time, a feature that is ordinarily missing from an appeal, or application for leave to appeal, brought by those who have been sentenced ... The consequence is that where the Crown appeals, it is normally obliged to demonstrate very clearly the error of which it complains. The further consequence is that, where such demonstration succeeds, it is conventional for the appellate court to impose a substituted sentence towards the lower end of the range of available sentences ... This convention tends to add an additional restraint upon interference, given the strong resistance that exists against appellate 'tinkering' with sentences."

10 In this case, the two grounds of appeal respectively contend that the sentences imposed were manifestly inadequate and that the sentencing Judge erred in ordering that each of the terms of imprisonment in relation to counts 5 to 13 be served concurrently. As to the first of those grounds, it is worth noting what was said by Gleeson CJ and Hayne J in Dinsdale at [6], as follows:

"Manifest inadequacy of sentence, like manifest excess, is a conclusion. A sentence is, or is not, unreasonable or plainly unjust; inadequacy or excess is, or is not, plainly apparent. It is a conclusion which does not depend upon attribution of identified specific error in the reasoning of the sentencing judge and which frequently does not admit of amplification except by stating the respect in which the sentence is inadequate or excessive."

Sentences in cases of sexual offences against children

11 Sexual offences against children are self-evidently very serious. The consequences for the victims of such crimes are ordinarily devastating and enduring, as is revealed by the victim impact statements lodged by the first two complainants in this case. The dominant sentencing considerations are punishment, general and personal deterrence and the protection of children who, because of their lack of experience and, often, judgment, are vulnerable.

12 In VIM v Western Australia (2005) 31 WAR 1 this Court (Wheeler JA, Roberts-Smith JA and Miller AJA) referred to recent cases (decided in 2004) in which it had been said that there has been a "firming-up" of sentences in cases involving sexual offences against children (at [288]). The Court also observed (at [294]) that, when one comes to consider totality considerations, a relevant factor is that, as the amount of offending increases, so the likelihood of significant harm to the victim is dramatically increased. The Court went on to say (also at [294]) that, in the majority of such cases, cumulation of sentences is to be expected so as to reflect the increasing severity of effect upon the victim as well as to reflect the fact that the offender has not simply given way to an impulse on one occasion, but has chosen repeatedly to commit serious offences. The Court added (at [295]) that cumulation of sentences is also to be expected where there is more than one victim.

13 The Court in VIM considered some 25 cases of multiple sexual offending against children that had been decided between 1999 and 2005. All of them were cases in which there had been a plea of guilty. The cases selected involved more than five sexual offences against a child, or against a number of children, or a charge of maintaining a sexual relationship with a child in circumstances in which it was clear that there had been multiple offending. The majority of cases considered involved at least one count of penile/vaginal penetration. The Court arrived at the following conclusions (at [302] and [303]):

"An examination of those cases (scaling up where necessary, to arrive at sentences as they were or would have been prior to the transitional provisions [in the Sentencing Legislation Amendment and Repeal Act 2003 (WA)]) reveals a sentencing range from suspended terms (two in total) to a term of 20 years. There are five terms of immediate imprisonment falling within the range 1 to 5 years (several being exactly 4 years and none of 5); one in the range 5 to 9 years; 11 in the range 10 to 14 years (with 10 years being the most common - five in total in this category); five in the range 15 to 19 years; and one of 20 years. In each case, any odd months have been rounded down, so that a term of 10½ years would fall into the category of 10-year terms. Approximately two-thirds of the sentences, then, fell into the range of 10 to 19 years, while one-third involved either suspended terms or terms of 9 years or less.

If one assumed in relation to those cases that there had been a discount of between 20 per cent and one-third for the plea of guilty, then the range of sentences one would expect to see imposed in similar cases after trial (prior to the transitional provisions) would be a range of up to 30 years, with the most common term being somewhere between 12½ and 15 years."

14 The Court endeavoured to undertake a similar exercise in relation to sentences imposed after trial. However, the Court considered that the sample of cases obtained was too small and diverse to be reliable. It concluded (at [312]) that the most that could be said is that the authorities reviewed suggest an aggregate sentence of 10 to 19 years, after taking into account the operation of the transitional provisions, would be imposed after trial in most cases of serious repeated sexual offending where the offences are representative of a course of conduct.

15 Finally, the Court considered cases in which there had been fewer than five counts of sexual abuse of a child and in which there had been pleas of guilty. It said (at [313]) that the sample located had been relatively small, nine cases having fallen into that category between 1998 and 2005. Those cases did not display any pattern and revealed a very considerable range in sentencing.

16 While it has repeatedly been said that there is no tariff for sentencing in sexual offences (a comment that is apposite to most categories of offending, an assessment of the seriousness of each offence and of the characteristics of each offender being capable of influence by an almost infinite range of possible factors), it is plain that the total sentence in this case and some of the individual sentences imposed are very much less than might have been anticipated, having regard to the cases summarised in VIM and to the comments made in that case.

17 In arriving at the sentences imposed by her, the sentencing Judge appears to have been influenced by a range of factors to which she referred.

18 The respondent had been suffering from depression for some years preceding the offending and he continued, at the time of sentencing, to suffer from depression. He had been undergoing psychiatric treatment in respect of it. A recent report from his psychiatrist revealed that the depressive disorder from which he suffered could possibly have caused him to exhibit poor judgment and to act out of character. This was because the depressive illness impacted upon the respondent's clarity of thinking and concentration. His illness, and ECT treatment provided in respect of it, had contributed to difficulties which he experienced with his short-term memory. The report also revealed that the respondent's depressive disorder had become more severe since 2002, although it seems to have been reasonably well controlled by medication. A second psychiatric report indicated that the respondent had self-esteem issues and that he experienced difficulty with inter-personal relationships.

19 The respondent suffers from an ongoing painful back condition. This resulted from a fall at his place of work in early 2002. He seriously damaged a number of discs in his back. At the time of his conviction he was in receipt of a fortnightly disability pension.

20 The respondent had a varied employment history but had been able to build up an equity of at least $180,000 in his home in Kingsley. The sentencing Judge mentioned that his home was the subject of a freezing order that had been imposed in respect of this offending (the house was said to have been "crime-used property" for the purposes of s 4 and s 146 of the Criminal Property Confiscation Act 2000 (WA)).

21 The respondent's only prior convictions related to traffic matters. A number of favourable character references were provided in respect of him. These suggested that his offending behaviour was out of character.

22 The specialist report prepared in respect of the respondent suggested that he lacked empathy as regards the effect which his offending had or might have on his victims and that he did not appear to be motivated to undertake treatment, as he perceived himself as a victim. Notwithstanding this, the author of the report placed him in a medium to low risk category as regards the likelihood of re-offending.

23 After mentioning these factors, the sentencing Judge noted that the respondent had had the benefit of a stable family upbringing and a relatively good education. However, he lacked insight into the appropriateness and criminality of his behaviour. He refused to accept responsibility for his offending behaviour (although he did write a letter to the Court apologising for any pain and hurt that his actions had caused). The sentencing Judge said that there was nothing in his psychological or psychiatric makeup which would properly or completely explain his offending behaviour. The respondent was intent upon gratifying his sexual and emotional needs and desires notwithstanding the age of the complainants and their consequential vulnerability. The sentencing Judge also pointed to the fact that there were two occasions upon which the respondent had physically restrained his victim in circumstances in which he had a considerable physical advantage, being a large man with a physically imposing presence.

24 The sentencing Judge then imposed the sentences to which I have referred, each of which had been reduced by one third in order to take account of the transitional provisions.

The adequacy of the sentences imposed in this case

25 In cases involving sexual offending, the fact that the offender is otherwise of good character ordinarily carries little weight: R v Petchell, unreported; CCA SCt of WA; Library No 930346; 16 June 1993 at 10, per Franklyn J (Walsh and Rowland JJ concurring) and VIM at [321]. That is because offences of that kind, until brought to light, generally do not impinge upon others or upon their perception of the offender: VIM at [321]. There is consequently little, in this case, that provides any real mitigation other than the fact of the respondent's depressive illness.

26 It is relevant, as counsel for the respondent pointed out, that the respondent was not in a position of trust as regards any of the complainants and that his depressive illness might make a term of imprisonment harder for him than for others. Also, being a person on a disability pension, the loss of the respondent's equity in his home pursuant to what can only be described, in this context, as the draconian operation of the Criminal Property Confiscation Act would be a matter of even greater significance than would ordinarily be the case. However, in this last respect we were told by the Director of Public Prosecutions that the question whether there will be a confiscation and, if so, to what extent, has yet to be finalised. No doubt the penalties now imposed upon the appellant will be taken into account when these questions come to be considered.

27 These factors, and other mitigating factors, must be weighed together with the seriousness of the offences. They involved repeated offending against three different victims. I have said that, in the case of the first of those victims, L, the acts of cunnilingus the subject of counts 1 and 2 were performed without consent. In the case of the second victim, H, it will be apparent from what I have said that she was reluctant to form a sexual relationship with the respondent because of her age. While she ultimately agreed to do so, having been persuaded by the respondent, she had thought better of this by the time of the offence the subject of count 4 which, as I have said, was non-consensual. The respondent was some 16 years older than his victims. There was no plea of guilty. Nor was there any acceptance by the respondent of responsibility for his actions.

28 In these circumstances, and notwithstanding the matters in mitigation, the aggregate sentence imposed on the respondent was, in my respectful opinion, so inadequate as of itself to lead to an inference of error of a magnitude sufficient to justify intervention by this Court, even having regard for the principles applicable to State appeals. While there is no appeal against any of the individual sentences imposed, it seems to me that the sentence imposed in respect of count 4 was manifestly inadequate and that this is one of the factors which has led to an inadequate total sentence. In my respectful opinion, the sentence imposed in respect of that one count should, at the very least, have been one of 4 years' imprisonment, after allowing for the operation of the transitional provisions. In that circumstance, and having regard for the non-consensual offending in counts 1 and 2, the fact that there were three victims, the repeated nature of the offending behaviour and the absence of any plea of guilty or expression of remorse, the inadequacy of the aggregate sentence of only 6 years' imprisonment becomes obvious, in my respectful opinion.

29 I would consequently allow the appeal and set aside the sentences imposed by the sentencing Judge. I would substitute, in lieu, the following sentences:

- 2 years and 8 months' imprisonment in each case; and

Each of these sentences has been reduced by one third, as required by the transitional provisions.

30 That leaves the question to what extent these sentences should be served concurrently or cumulatively, so as to allow for the operation of the totality principle: Postiglione v The Queen (1997) 189 CLR 295 at 307 - 309 per McHugh J. There is one additional factor which should be taken into account in this respect. After being sentenced by the sentencing Judge in respect of the present offences, the respondent was convicted on a number of charges of possession of child pornography and sentenced, on 24 April 2007, to a term of 12 months' imprisonment, with eligibility for parole, to be served cumulatively upon the sentences imposed in respect of the present offences.

31 I have read the transcript of those sentencing proceedings. The transcript reveals that, on 24 February 2003, police executed a search warrant at the respondent's home. They found 1260 images of child pornography stored on hard drive on a computer and 1255 images stored on five CD-ROMs. Images stored on hard drive and on CDs were organised into files and had been downloaded and collected over a period of years. The police also found 147 hard copy images stored in lever arch files. The respondent was convicted after a trial by jury in respect of seven counts of possession of child pornography (the images found on the hard drive were the subject of count 1, those found on the CDs were the subject of counts 2 to 6 and those found in the lever arch files were the subject of count 7). Most of the images involved naked girls. There was a significant number of graphic depictions of acts of sexual penetration, acts of fellatio, group photographs and other sexual acts. In sentencing the respondent, the sentencing Judge took into account the sentences that had earlier been imposed, the respondent's depressive illness and the favourable references that had been provided in respect of him. However, he also noted the absence of any pleas of guilty or expressions of remorse. He sentenced the respondent to a term of 12 months' imprisonment in relation to count 1 and to terms of 8 months' imprisonment on each of the remaining counts. Each of those sentences took into account the transitional provisions. He said that, "after some thought", he had decided that for totality reasons and for reasons to do with the respondent's depressive illness the terms should be served concurrently, but cumulatively on the sentences earlier imposed.

32 When regard is had for all of the circumstances to which I have referred, and after taking into account what was said in VIM and allowing for the fact that this is a State appeal, I consider that the aggregate sentence which should be imposed solely in respect of the present offending (leaving to one side, for the moment, the possession of the child pornography) is one of 8 years' imprisonment. Because of the seriousness of the present offences, particularly counts 1, 2 and 4, and taking into account their repetitive nature and the fact that there were three victims, it seems to me that a total sentence of any lesser duration would be inadequate. In order to achieve that outcome I would direct that the sentences imposed in respect of counts 4, 5 and 7 should be served cumulatively upon each other but that each of the other sentences of imprisonment imposed should be served concurrently with that imposed in respect of count 4.

33 That leaves the question whether a total of 9 years' imprisonment is appropriate, once the sentences imposed in respect of the possession of child pornography are taken into account. In my opinion that total is appropriate. The child pornography offences were serious. It has often been pointed out in the cases (as it was in this case) that the downloading of images of this kind creates a market which encourages the exploitation and corruption of children. The appellant had downloaded a large number of these images over a considerable period of time. It consequently seems to me that it remains appropriate for those offences to result in a sentence that should be served cumulatively upon the total sentence imposed in respect of the present offences. It also seems to me that, when those offences are looked at together with the present offences, anything less

than 9 years' imprisonment would be an inadequate measure of the total criminality involved, even bearing in mind that this is a State appeal.

34 I would consequently allow the appeal and set aside the sentences imposed by the sentencing Judge. In lieu I would impose the sentences to which I have referred, giving rise to a total a term of 8 years' imprisonment with eligibility for parole. That term will be served cumulatively upon the term of 12 months' imprisonment imposed on 24 April 2007 in respect of the child pornography offences. Because the sentences now imposed should be backdated to 3 April 2006, the respondent will be eligible for parole as from 3 April 2013.

36 MILLER AJA: I have had the opportunity of reading in draft the reasons for judgment of Steytler P. I agree with those reasons and agree that the appeal should be allowed and the sentences restructured in accordance with Steytler P's judgment.

Criminal Property Confiscation Act 2000(WA)

Sentencing Legislation Amendment and Repeal Act 2003(WA)

THE STATE OF WESTERN AUSTRALIA -v- ROCK [2007] WASCA 121 (29 May 2007)

At a glance

Court

Decision date

Before

Source

Judgment (43 paragraphs)

Sentences in cases of sexual offences against children

The adequacy of the sentences imposed in this case

Legislation Cited (2)

Cases Cited (5)