Sentencing Act 1995, s 8

Jarvis v R, unreported; CCA SCt of WA; Library No 930341; 14 June 1993

Kirk v R, unreported; CCA SCt of WA; Library No 980067; 17 February 1998

R v Podirsky (1989) 43 A Crim R 404

Shepherdson v R, unreported; CCA SCt of WA; Library No 920179; 27 March 1992

Wong v R, unreported; CCA SCt of WA; Library No 980218; 2 April 1998

1 IPP J: I have read the reasons to be published by Anderson J. I agree with them and his Honour's conclusions. I have nothing further to add.

2 ANDERSON J: This is an application for leave to appeal against sentences passed in the District Court at Bunbury on 14 December 1998.

3 The applicant had been presented on an indictment containing four counts of procuring a child under the age of 13 to indecently deal with him, seven counts of sexual penetration of a person under the age of 16 without consent, one count of attempted sexual penetration of a child under the age of 13, one count of indecent dealing with a child under the age of 13 and one count of attempted sexual penetration of a child under the age of 16.

4 These offences had occurred between May 1990 and March 1994. There were two complainants. They are sisters who were respectively aged between 6 and 9 years and 8 and 12 years at the time of the offences. They were the daughters of a woman with whom the applicant had formed a relationship in early 1989. The relationship was not continuous, but they had lived together from time to time and were living together more or less continuously at the time of the offending. The offences occurred at the house they occupied in Busselton. In every instance, the offending took place while the complainants' mother was at work and the applicant was alone with the children in the house for the purpose of caring for them.

5 The first six counts charge offences against the older of the two children. Counts 7 to 14 charge offences against the younger of the two. Four of the offences committed against the older child were committed on unknown dates between 1 January 1991 and 1 August 1992. Two of the offences committed against that child were committed on an unknown date between 1 January 1993 and 31 December 1993. The eight offences committed against the younger child were committed on unknown dates between 1 January 1991 and 1 August 1992.

7 Counts 1 and 2 allege offences against the older child arising out of a single encounter, the facts being that the applicant called both children into a bedroom and told the older child first to touch his penis and then put her mouth over it, which she did. The offences charged were unlawful and indecent dealing in relation to the touching and sexual penetration without consent. As the Code stood at the relevant time, the maximum penalty in respect to count 1 was 7 years' imprisonment and the maximum penalty in respect to count 2 was 20 years' imprisonment.

8 Count 3 alleges unlawful and indecent dealing in respect to the older child, the facts being that on another occasion between the same dates, 1 January 1991 and 1 August 1992, the applicant went into the older child's bedroom, lay down with her and rubbed his penis against her vagina. Count 4 alleges the third act of unlawful and indecent dealing in relation to the older child, the facts being that, on another occasion between the same dates, the applicant procured both children to touch his penis.

9 Counts 5 and 6 relate to a single encounter between 1 January 1993 and 31 December 1993, during which the applicant attempted to sexually penetrate the older child and indecently dealt with her, the facts being that he took her into the main bedroom and attempted to put his penis into her vagina and rubbed his penis against her thigh, ejaculating on her leg.

10 Counts 7 and 8 relate to the younger child. They arise out of the same incident, in which the applicant took both children into the main bedroom where he put his finger into the vagina of the younger child and procured her to put her mouth over his penis.

11 Count 9 is a count of sexual penetration without consent in relation to the younger child, the facts being that, on a date between 1 January 1991 and 1 August 1992, the applicant was with both children in the lounge room and procured them to touch the applicant on his chest while he put his finger in the younger child's vagina.

12 Counts 10, 11, 12 and 13 are counts of unlawful and indecent dealing, sexual penetration without consent and attempted sexual penetration arising out of a single encounter in relation to the younger child, the facts being that the applicant instructed the younger child to touch his penis, which she did, and at the same time the applicant put his finger into her vagina, attempted to push his penis into her vagina and instructed her to put her mouth over his penis, which she did. The final count alleges an act of cunnilingus in relation to the younger child, the facts being that on another occasion the applicant laid the younger child on her back in the main bedroom and placed his mouth on her vagina.

13 The sentencing court was informed that the counts on the indictment were representative of a course of conduct engaged in by the applicant between the dates mentioned in the indictment. The prosecutor said:

"It is ... clear the girls have been totally unable to recall all of the incidents that occurred and as a result the counts on the indictment are representative only."

14 In respect of each of the unlawful and indecent dealing offences committed between 1 January 1991 and 1 August 1992, of which there were four (three in relation to the older child and one in relation to the younger child), the maximum penalty was 7 years' imprisonment.

15 In respect of the indecent dealing offence committed against the older child between 1 January 1993 and 31 December 1993, the maximum penalty had risen to 10 years' imprisonment.

16 In respect of each of the offences of sexual penetration without consent, of which there were seven (one against the older child and six against the younger child), the maximum penalty was 20 years' imprisonment. In each of the offences of attempting to sexually penetrate (one in respect to the older child and one in respect to the younger child), the maximum penalty was 10 years' imprisonment.

17 The learned sentencing Judge imposed an aggregate sentence of 14 years' imprisonment with eligibility for parole. He structured his sentence by imposing five sentences each of 2 years' imprisonment and nine sentences each of 2-1/2 years' imprisonment, ordering some to run concurrently and others to be cumulative.

18 The notice of appeal enumerates two grounds of appeal, but they amount to a single complaint to the effect that, in all the circumstances, the sentence was manifestly excessive.

19 As that ground of appeal was developed in argument by counsel for the applicant, Ms Rossi, it had two main aspects. Ms Rossi submitted that, in the first place, the learned sentencing Judge adopted a starting point well above the starting point normally adopted in cases of this kind. Secondly, Ms Rossi submitted that there had been a wholly inadequate credit given for the applicant's early pleas of guilty.

20 As to the starting point, the learned sentencing Judge said:

"The starting point for the criminal behaviour, taking all of these crimes together is somewhere between 16 years and 18 years' imprisonment."

21 Cases of intra-family sexual assaults on young children generally attract heavy sentences. The reasons for this have been stated in this Court many times. Sexual assaults by an adult upon young children within the family environment involving the taking advantage of a position of trust and authority is very serious and the law demands the protection of young children from it. The dominant sentencing considerations are punishment and general and personal deterrence, as well as retribution for the victims who are invariably grossly traumatised. The maximum penalties, to which reference has already been made, disclose a broad policy decision by the legislature which the courts are bound to give effect to - R v Wozencroft, unreported; CCA SCt of WA; Library No 6606; 25 February 1987; Johnston v R, unreported; CCA SCt of WA; Library No 960153; 22 March 1996.

22 The Court has also said on many occasions that there is no tariff for sexual offences and that it is neither feasible nor desirable to attempt to establish one. Each case must be judged on its merits. As it was put in Leslie v R, unreported; CCA SCt of WA; Library No 940080; 21 February 1994:

"Exhaustive reference to previous authority, other than to establish general principles and to demonstrate a consistency in approach or the identification of a range of options, will rarely be of assistance."

23 Nevertheless, I think it must be said by reference to a long line of sentencing cases in this area of the criminal law that, if his Honour did start at 18 years, he started too high. Without for one moment seeking to diminish the enormity of the criminal conduct engaged in by the applicant and the lasting harm which it probably has done to the complainants, as appears from the victim impact statements and other material presented to the Court, an aggregate term of 18 years' imprisonment is a sentence not usually imposed except in the worst cases.

24 This case did have bad features. The procuring by a mature adult of children to engage in sexual activity with him in the presence of each other is, of course, extremely serious criminal conduct. When there is added the length of time over which the conduct took place, and the young age and the physical immaturity of the victims, the fact that they were in the applicant's care and the immeasurable trauma experienced by both of the victims, a heavy sentence was inevitable. However, putting the case in context with other cases, as to which see Woods v The Queen (1994) 14 WAR 341, at 354 et seq, the appropriate starting point was 14 years. See also De Luce v R, unreported; CCA SCt of WA; Library No 960375; 19 July 1996. The latter is a case which is not dissimilar to this case.

25 The applicant pleaded guilty to each of the charges at an early date. It would be fair to say that he pleaded guilty at the first available opportunity. This is a powerful mitigating factor in cases such as this. Not only does it save the State the costs of maintaining the prosecution as a fully defended prosecution, preparing for a complex jury trial and conducting that trial, it also saves the victims from the anguish and lasting trauma of the trial process. That an early plea of guilty is a mitigating factor is expressly recognised in the Sentencing Act 1995 (WA), s 8(2), which provides:

"A plea of guilty by an offender is a mitigating factor and the earlier in proceedings that it is made, or indication is given that it will be made, the greater the mitigation."

Pleas of guilty are especially to be encouraged in cases of this kind, for obvious reasons. One means of encouraging early pleas of guilty is to reward them - really reward them - with sentencing discounts. In this case, the applicant's intention to plead guilty was made evident in the Court of Petty Sessions at the earliest possible stage, enabling him to be dealt with under the fast track system. Sentencing discounts for pleas of guilty under the fast track system range between 20 per cent and 35 per cent, and are commonly around 30 per cent - Stretton v R, unreported; CCA SCt of WA; Library No 950282; 1 June 1995, per Malcolm CJ, at 5. Whilst the extent of the discount for early pleas of guilty is a matter of discretion, in respect of which there is no hard and fast rule, I think that public policy considerations in obtaining immediate pleas of guilty in cases of this kind would usually result in a larger, rather than a smaller, discount. In my opinion, a proper exercise of sentencing discretion called for a discount of at least 25 per cent in this case, which would reduce the starting-point from 14 years to 10-1/2 years.

26 There are other matters of mitigation, but they must be given far less weight. It was submitted on behalf of the applicant that there were clear signs of true remorse and a genuine desire for rehabilitation. There certainly were signs of that. The applicant initiated contact with the Safe Care programme (formerly known as the Sexual Assault in Families programme) after he had been charged with the offences. In the counselling which followed, it became apparent to the clinical psychologist who attended him, Ms Chamarette, that his offending had been "on his conscience ever since it happened" (Appeal Book page 36). He was assessed as showing "extremely high motivation regarding participation in the Safe Care programme". For a time he travelled on public transport from Margaret River to Perth to attend treatment sessions and thereafter, on several occasions, attended at the Bunbury programme centre. The assessment made of him in the reports prepared by Safe Care included the observation, "While part of his motivation may be related to his impending court appearance, much of it is a true commitment to prevent re-offending and to understand issues related to his offending behaviour".

27 There were also matters relating to the applicant's background, which had to weigh in his favour to some extent. They are set out in Ms Chamarette's report and were related to the learned sentencing Judge and included that he had suffered brain damage in a vehicle accident in 1979 which left him with serious emotional and mental disturbances leading to an abuse of both alcohol and drugs. His antecedents are relatively good, there being nothing in his background which suggests a predisposition to the kind of offending for which he received these sentences.

28 Having said all that, however, it must also be said that these matters cannot count for very much in this kind of case. Remorse, contrition and good antecedents do not carry much weight in a case where there are 14 counts spanning some three or four years, especially when the counts are themselves representative of a course of deviant criminal conduct during that time. Although the applicant cannot be sentenced on the basis that he has committed any other offence than those which are charged against him, the fact that the offences charged against him are representative of a course of conduct disentitles the applicant to receive the same degree of consideration for good antecedents than might otherwise be the case. As it was put in Johnston v R (supra), at 6:

"... the fact that these offences were representative of a course of conduct disentitles the applicant to receive favourable consideration on the basis that the offences were in the nature of a single, impulsive act committed during a moment of weakness and out of character."

Concerning voluntary submission to a rehabilitative programme, remorse, contrition and matters of that kind, they cannot be left out of account but must be kept in perspective, having regard for the quantity and persistent nature of the criminal conduct involved. The reason for this is as expressed by Burt CJ in R v Wozencroft (supra), in the following passage:

"Once the decision has properly been taken to impose a sentence for such an offence [in that case unlawful sexual penetration of a person under the age of 16 years] it is not then to the point to contend that the sentence should be structured upon the assumption that the offender requires treatment or counselling or both and that accordingly it should be a sentence which is designed to facilitate a 'cure' to be achieved in that way ... The general approach must be that the primary purpose of a sentence for such an offence is to protect members of the community from such assaults, and that that protection is to be achieved by a sentence which is and which is seen to be imposed as a punishment, its purpose being to deter."

29 The plain fact of the matter is that good antecedents, contrition, the taking of steps towards rehabilitation, the fact that the offending may have been contributed to by abuse of alcohol and drugs and matters of that kind cannot be weighty mitigatory factors in a case of prolonged sexual molestation by a mature adult of children entrusted to his care.

30 I would allow no more by way of discount for these matters than 6 months.

31 In my opinion, a proper aggregate sentence was 10 years' imprisonment.

32 There is another aspect of the learned sentencing Judge's structuring of the sentences which has received criticism and, with respect to his Honour, I think the criticism is justified. The sentences imposed ranged from 2 years to 2-1/2 years. In my opinion, sentences of 2-1/2 years for the offences charged in counts 2, 5, 7, 8, 9, 11, 12, 13 and 14 were inadequate. They are counts of sexual penetration, attempted sexual penetration and cunnilingus. They were each quite serious offences of their kind. In my opinion, each of the counts of attempted penile vaginal penetration warranted a penalty of 4-1/2 years' imprisonment, each of the offences of penile mouth penetration warranted a penalty of 5 years' imprisonment, as did the offence of cunnilingus. Each of the offences of digital vaginal penetration warranted sentences of at least 3-1/2 years' imprisonment.

33 I would therefore set aside the sentences imposed by his Honour in respect to the above counts and impose the following sentences in lieu:

34 Solely to accommodate the totality principle, I would order all of the sentences in respect of counts 1 to 6 - they being the offences against the older girl - to run concurrently. That is an aggregate of 5 years.

35 Solely to accommodate the totality principle, I would order all of the sentences in respect of counts 7 to 14 - they being the offences against the younger girl - to run concurrently. That, too, is an aggregate of 5 years.

36 I would order the aggregate sentence of 5 years in respect of counts 7 to 14 to be served cumulatively upon the aggregate sentence of 5 years in respect of counts 1 to 6.

37 I would not interfere with his Honour's order for parole eligibility.

38 WHITE J: I have had the advantage of reading in draft the reasons for judgment of Anderson J. I agree with those reasons and with the orders proposed.