UGN -v- THE STATE OF WESTERN AUSTRALIA [2021] WASCA 10 (28 January 2021)

On an unknown date between 19 October 2002 and 20 October 2003 at [a Perth suburb], the appellant indecently dealt with a child under the age of 13 years (s 320(4) Code)

On the same unknown date and in the same place as count 3, the appellant indecently dealt with a child under the age of 13 years (s 320(4) Code)

*Reduced from 21 months' in the application of the totality principle

On an unknown date between 19 October 2003 and 20 October 2004 at [a Perth suburb], the appellant indecently dealt with a child under the age of 13 years (s 320(4) Code)

On an unknown date between 19 October 2004 and 31 January 2005 at [a Perth suburb], the appellant sexually penetrated a child under the age of 13 years (s 320(2) Code)

On the same unknown date and in the same place as count 6, the appellant indecently dealt with a child under the age of 13 years (s 320(4) Code)

On an unknown date between 19 October 2004 and 20 October 2005 at [a Perth suburb], the appellant indecently dealt with a child under the age of 13 years (s 320(4) Code)

1. The appellant does not challenge any of the individual sentences that were imposed by her Honour. The one ground of appeal relied upon by the appellant alleges that the total effective sentence infringed both limbs of the totality principle. The question of leave to appeal on this ground was referred to the hearing of the appeal.[1] For the reasons which follow, we would refuse leave to appeal and dismiss the appeal.

1. Her Honour's summary of the facts of the offending in her sentencing remarks are not challenged by the appellant. The facts are as follows.
2. The appellant was born in May 1951. C was born in October 1992. The age gap between the appellant and C was approximately 41 1/2 years. C's mother was a friend of the appellant.[2]
3. As to counts 1 and 2, on an unknown date in 2000, the appellant drove C in his car to some shops to buy her a treat. C was 7 or 8 years of age at the time. The appellant had picked C up from her home after school and she was dressed in her school uniform. On the way to the shops, the appellant stopped at a gravelled area at the edge of a park in a Perth suburb. There, he told C to pull her underwear down, which she did. The appellant then rubbed C's vagina and then inserted a finger into her vagina, moving it in and out (count 1). At the same time, the appellant exposed his penis and masturbated until he ejaculated (count 2).[3]
4. As to counts 3 and 4, on an unknown date between 19 October 2002 and 20 October 2003, when C was 10 years old, the appellant visited C's mother's home. While C's mother was occupied elsewhere, the appellant entered the living room where C was sitting on a couch. He leaned over her, unzipped his pants and pulled out his penis. He then grabbed C's hand and put it on his penis. C pulled her hand away (count 3). The appellant continued to lean over her and masturbated in front of C until he ejaculated into his hands and onto his pants (count 4). The appellant then went to the bathroom. When he returned, he sat next to C and told her not to tell her mother what had happened because he was afraid that C's mother would punch him.[4]
5. As to count 5, one evening on an unknown date between 19 October 2003 and 20 October 2004, when C was 11 years of age, the appellant was cooking dinner at C's mother's home. C's mother was not present, although one of her adult neighbours was in the kitchen. In the presence of the neighbour, the appellant grabbed C in the area between her buttocks. The sentencing judge found that this act was motivated by the appellant's ongoing sexual interest in C.[5]
6. As to counts 6 and 7, on an unknown date between 19 October 2004 and 31 January 2005, when C was 12 years of age, the appellant took her to visit one of his friends. There, C played with the friend's daughter. After the visit, the appellant took C to play in a park. As night fell, the appellant drove C to a more secluded area on the other side of the park. There, he asked C to take her pants off, which she did. The appellant undid his pants and started masturbating, while at the same time he rubbed C's vagina (count 7). He then inserted his finger into C's vagina and moved it in and out while continuing to masturbate (count 6).[6]
7. As to count 8, on an unknown date between 19 October 2004 and 20 October 2005, when C was still 12 years old, she visited the appellant at his apartment. There, while C was sitting at the dining table, the appellant called her over to look at a DVD he was watching. C did so, and saw that the DVD being viewed by the appellant depicted adults engaging in sexual activity, including a man putting his penis into the navel of a woman.[7]
8. The sentencing judge found that the appellant offended against C in the same manner as described in counts 1 and 2 on other uncharged occasions. Her Honour also found that the appellant groomed C by buying her treats such as chocolate and ice‑cream after sexually abusing her and, as the years went by, he also gave her money and bought her clothes. Her Honour also found that C, on occasions, asked the appellant for money, which he gave C in order to keep her quiet about the sexual abuse he perpetrated on her.[8]
9. Her Honour found that, although the appellant did not have a parental relationship with C, he had access to her because of the relationship he had with C's mother and as C's mother frequently entrusted the appellant with C's care. Her Honour found that the appellant was in a position of trust when he sexually abused C on the occasions in counts 1, 2, 6, 7 and 8. Her Honour observed that the appellant was a regular visitor to the home occupied by C and her mother, and that his friendship with C's mother enabled him to abuse C in her own home, as occurred in counts 3, 4 and 5. Her Honour found that the appellant took advantage of the trust C's mother had placed in him, in order to abuse a vulnerable child.[9]
10. Her Honour concluded that the offences in counts 1, 2, 6 and 7 were 'clearly premeditated'[10] and that count 8 also appeared as such.[11] In relation to counts 3, 4 and 5, her Honour found that there did not seem to have been a great deal of planning and, rather, found that the offending appeared to be opportunistic.[12]

1. The appellant was aged between about 49 and 55 years during the period of his offending. He was 68 years old at sentencing. He was born in Vietnam and experienced a very difficult and impoverished life there. His parents died when he was young. His five siblings live overseas and he maintains regular contact with only one of them.[13]
2. In 1977, the appellant and his young family fled from Laos to Thailand, where they spent two years in a refugee camp before being granted asylum in Australia.[14]
3. The appellant has been married twice. At the time of sentencing, he was living with his wife, his stepdaughter, her husband and their very young child.[15]
4. As a result of his deprived childhood, the appellant had very little opportunity to undertake formal education. The information before her Honour was that the appellant effectively left school when he was aged 7. As a result, the appellant has 'significant literacy issues' and has also struggled to learn English.[16]
5. The appellant has worked for about 40 years in meat processing plants. He was described by a former employer as being 'a reliable and diligent worker'.[17]
6. The pre‑sentence report provided to the sentencing judge revealed that, apart from high blood pressure and tendon pain, the appellant has no physical health difficulties.
7. The appellant has what her Honour described as 'an extremely limited criminal record and no record for sexual offending'.[18] His only convictions are for drink driving in 1996 and for possession of cannabis in 2011.
8. The sentencing judge was provided with letters from the appellant's son and stepdaughter who spoke highly of his qualities as a father and his generosity to family members and others in the Vietnamese community.[19]

1. The sentencing judge took into account a detailed victim impact statement written by C dated 3 April 2020. The statement described how, in her teenage years, after years of sexual abuse at the hands of the appellant, she became depressed, upset, anxious and rebellious. Her academic performance at school deteriorated. By year 9 she began using cannabis as a coping mechanism as well as to sleep.
2. As a consequence of the abuse, C's relationship with her mother has been ruined.
3. The sexual abuse has had, and continues to have, a serious effect upon C's psychological health and has also adversely affected her relationships and enjoyment of life. She experiences traumatising memories of what occurred. She cannot look back to her childhood with happy thoughts and she has been left, as an adult, fretting for a normal life.

1. Her Honour found that the appellant's offending was aggravated by:[20]

(1) being part of a course of sexual offending against C over a period of at least five years;

(2) the fact that the appellant groomed C, including by providing her with money and clothes; and

(3) the large age difference between the appellant and C.

1. Her Honour found that the appellant took advantage of the trust that C's mother had placed in him, in order to abuse a vulnerable child and, further, that some of the offending took place in C's home where she was entitled to feel safe. Her Honour observed that the offending in counts 1, 2, 6 and 7 was clearly premeditated and the offending in count 8 appeared to be premeditated. Her Honour said, in relation to count 8, that showing C pornography was part of the appellant's overall pattern of behaviour towards C, and that it displayed his sexual interest in her and maintained the normality of his sexual behaviour towards her.[21]
2. Her Honour found that there was nothing in the offending itself which was mitigating.[22]
3. Her Honour observed that the appellant continued to deny his offending and, accordingly, remorse was not a mitigating factor.[23]
4. Her Honour accepted that the appellant had suffered from significant disadvantage in his life, including growing up in poverty, and having limited family support and education. However, she did not regard these factors as being 'significantly mitigating'.[24] Her Honour also accepted that the appellant's lack of English would make his time in prison 'more difficult'.[25] Further, her Honour acknowledged that the appellant would be serving a term of immediate imprisonment for the first time at a 'relatively late age'.[26]
5. Her Honour stated (correctly) that the dominant sentencing considerations for offences of the kind committed by the appellant were personal and general deterrence, and the protection of children. Consequently, personal mitigating factors carry less weight.[27]
6. Her Honour accepted the assessment in the pre‑sentence report that the appellant posed a low risk of reoffending and, as a result, said that personal deterrence was not particularly significant in his case.[28]
7. After stating that the only appropriate sentence to be imposed upon the appellant for the offences were terms of immediate imprisonment and then articulating the individual sentences, her Honour (again correctly) considered issues of concurrency and cumulacy and finally, both limbs of the totality principle. In the context of totality, her Honour referred to the appellant's age, stating:[29]

You are 68 years old, which is not young but is not particularly aged. I do not consider your age to be a relevant factor, given the seriousness and extent of the offending.

There is no evidence that you are in particularly poor health or that you are at risk of any medical condition worsening as a result of imprisonment or that you are likely to die in gaol or leave prison in such a state as to have no reasonable expectation of useful life after a term of imprisonment, even a significant one.

1. Her Honour then stated that she considered the appropriate total effective sentence to be 8 years 6 months' imprisonment. In order to achieve this, her Honour reduced the sentence she imposed on count 4 from 21 months to 18 months, and ordered that the sentences on counts 1, 4 and 6 be served cumulatively.[30]

1. The general principles that govern appeals contending, as the appellant does in this case, inferred error on the basis that the total effective sentence infringes the totality principle are well‑established.[31]
2. Sentencing is a discretionary exercise. An appellate court can only intervene if the appellant demonstrates either an express or implied material error. Implied error arises where the end result is so unreasonable or unjust that the court must conclude that a substantial wrong has occurred. Thus, an appellate court cannot substitute its own opinion for that of the sentencing court merely because the appellate court would have exercised a sentencing discretion differently.
3. The totality principle has two limbs. The first limb of the totality principle requires that the total effective sentence imposed on an offender who has committed multiple offences bears a proper relationship to the overall criminality involved in all of the offences (including those, if any, in respect of which the offender is still serving or is yet to serve a term of imprisonment), viewed in their entirety, having regard to all relevant facts and circumstances including those referable to the offender personally (and including, for example, the desirability of accommodating any wish to rehabilitate), all relevant sentencing factors and the total effective sentences imposed in comparable cases.
4. 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. Advanced age is a relevant consideration in determining whether an aggregate sentence is 'crushing'. However, whether and, if so, to what extent, leniency should be given to an offender by reason of his or her advanced age depends on all the facts and circumstances of the particular case. For example, offences may be so serious that humanitarian considerations relating to advanced age cannot be accommodated. An aggregate sentence may be inappropriately long under the first limb even if it cannot be described as crushing.
5. The range of sentences imposed in other cases does not establish the range of a sound exercise of the sentencing discretion. Sentences customarily imposed in comparable cases provide a yardstick or reference point for ensuring broad consistency in sentencing, bearing in mind the scope for significant variations in relevant sentencing factors and that there is no single correct sentence. What is important are the unifying principles which sentences imposed in comparable cases reveal and reflect.
6. When this court dismisses an appeal against sentence and when it resentences on a successful appeal, its decision does not fix the upper or lower limit of the range.

Sentencing for sexual offences against children

1. As her Honour stated in the sentencing remarks, because of the need to protect vulnerable children, the primary sentencing considerations for offences of the type committed by the appellant are punishment of the offender and personal and general deterrence. As a result, matters personal to an offender will ordinarily carry less weight. Further, the increased likelihood of significant and enduring harm that comes with repetitive and prolonged sexual abuse against a child is one of the reasons that some accumulation of the sentences for the individual offences is to be expected.[32]

1. The appellant's submissions in support of the ground of appeal, in substance, contend that the total effective sentence infringed both limbs of the totality principle because:

(a) the sentence was disproportionate to the objective seriousness of the offending and, in particular, because counts 1 and 6 did not involve the penile penetration of C's vagina;

(b) it was inconsistent with the comparable cases; and

(c) of the appellant's age at the time he was sentenced.

1. There was not, nor could there reasonably have been, a challenge to the individual sentences imposed by her Honour. The sentences were imposed after trial. While the appellant's plea was not an aggravating factor and was not treated by her Honour as such, the appellant did not have available to him the mitigation that pleas of guilty would have brought. Nor did the appellant have the mitigation of genuine remorse.
2. The offences committed by the appellant were plainly serious. The most serious were the offences which involved the digital penetration of C's vagina (counts 1 and 6). These offences were subject to the maximum penalty of 20 years' imprisonment. Each offence was accompanied by an indecent dealing, constituted by an act of masturbation to ejaculation in C's view (counts 2 and 7).
3. The appellant committed other serious acts of indecent dealing including a further act of masturbation by the appellant in C's view (count 4), putting C's hand on his penis (count 3) and 'groping' her bottom in the presence of another person (count 5). Showing pornography to C (count 8) reflected the appellant's sexual attraction to C and how he had come to normalise inappropriate sexual behaviour towards her.
4. The offences involved five separate incidents and were aggravated by having been committed over a period of about five years. Some accumulation of the individual sentences was therefore warranted. The offences were not isolated events and were, in effect, representative of ongoing sexual behaviour towards C. The offending was motivated by the appellant's sexual attraction towards C.
5. The offending was further aggravated because the appellant groomed and rewarded C to the point where, as we have already mentioned, the appellant's behaviour was normalised. C's mother trusted the appellant and frequently left C in his care. The offending breached the trust that had been placed in the appellant. Some of the offences were premeditated. Some were committed in C's home where she was entitled to be safe.
6. At all times, C was a vulnerable child. Unsurprisingly, the offending has had, and continues to have, a highly deleterious effect on her life. She was deprived of a happy childhood and adolescence and the offending has had profound effects upon her life as an adult.
7. The appellant's deprived upbringing is a matter of mitigation. So too is the support that he has given to other members of his family as well as his constant work history. Up to 2000, when his offending against C commenced, he was a person of prior good character. Her Honour found that the appellant poses a low risk of reoffending. The support that the appellant has from his family will hopefully facilitate his rehabilitation.
8. While there were mitigating factors personal to the appellant, the sentencing objectives of general deterrence and the necessity to impose a sentence which properly punishes the appellant for what he did and protects vulnerable children from sexual abuse and exploitation must take precedence.
9. We do not accept the submission that the total effective sentence infringed the first limb of the totality principle, having regard to the objective seriousness of the offending. The objective circumstances of the offending were, in our opinion, very serious. The fact that the counts of sexual penetration did not involve the penile penetration of C's vagina is not to the point. Having regard to what the appellant actually did and the effect of his offending upon C, it cannot reasonably be said that the sentencing judge overestimated the objective seriousness of what the appellant did to C.
10. As to the comparable cases, the appellant contended that, having regard to their facts and circumstances, the outcomes in JDF v The State of Western Australia;[33] GGM v The State of Western Australia [No 2];[34] The State of Western Australia v Prince;[35] The State of Western Australia v CGT;[36] JAW v The State of Western Australia[37] and LFG v The State of Western Australia,[38] support the contention that the total effective sentence infringed the first limb of the totality principle.
11. When, in cases such as the present, an infringement of the first limb of the totality principle is alleged, an exercise of comparison with the total effective sentence under challenge and the facts and circumstances of cases said to be comparable is of limited utility. As Hall J noted in Pennetta v The State of Western Australia:[39]

Where, however, it is only claimed that there has been a breach of the totality principle and no challenge is made to the individual sentences the utility in comparing the total effective sentence with total sentences in other cases is more limited. This is because the total effective sentence is not one imposed for a single offence. It is often difficult enough to compare sentences imposed in different cases with different factual circumstances and different personal circumstances where the offences relates only to a single offence. The fact that different offenders may have received different total effective sentences in respect of different groupings of sentences adds a level of complexity that makes comparisons difficult. Nonetheless it is important to ensure that there is broad consistency in sentences. (authorities omitted)

1. In the context of sentences for child sexual offences, this court observed in CAND v The State of Western Australia:[40]

[B]ecause the range of circumstances of sexual offending and sexual offenders are infinitely variable, there is no established tariff for sexual offences involving children and the total effective sentence imposed in one case can only provide very limited guidance in assessing whether the total effective sentence imposed in the case under appeal is manifestly excessive, in the sense that error can be implied from the exercise of the sentencing discretion [LJH v The State of Western Australia [2016] WASCA 155]. For those reasons there will necessarily be limits upon the utility of the process of argument presented on behalf of the appellant.

1. It is unnecessary to undertake a case by case comparison between the authorities cited by the appellant and the present case. As the respondent correctly pointed out in its written submissions, there are distinguishing features in JDF and LFG which mean that neither case assists the appellant. The appellant's reliance upon Prince is misplaced, having regard to the statement made in Mills v The State of Western Australia [No 2],[41] that this court's resentencing of the offender in Prince was lenient and is of limited use as a comparator.
2. While we accept that the offending in GGM, JAW and CGT was more serious than in the present case, and that the offenders in those cases received total effective sentences which were either less than that received by the appellant (7 years' imprisonment in GGM and JAW) or only slightly more (8 years 9 months' imprisonment in CGT), an infringement of the first limb of the totality principle is not established by reference to the outcome in a small number of cases. Further, the purpose of considering comparable cases is, as we have already said, to ensure broad consistency. Viewed in this light, the total effective sentence in this case is, as the respondent points out, in a broadly consistent range for offences of the kind committed by the appellant.
3. Moreover, comparable cases are only one of the criteria which must be considered when deciding whether there has been a breach of the totality principle. In the end, all of the relevant facts and circumstances must be considered.
4. Having regard to:

(a) the maximum penalties for the offences committed by the appellant;

(b) the overall criminality involved in all of the offending, viewed in its entirety, including having regard to the personal circumstances of the appellant;

(d) all relevant sentencing factors and sentencing principles,

the total effective sentence imposed in the present case does not, in our opinion, infringe the first limb of the totality principle.

1. We now turn to the appellant's contention that the total effective sentence infringed the second limb of the totality principle.
2. It is clear from [34] above that her Honour did not regard the appellant's age as a sufficient basis to justify the application of the second limb of the totality principle. In our opinion, her Honour was correct to so conclude.
3. The appellant's submissions are solely based on the fact that he was 68 years of age at the time of sentencing.
4. The effect of age in sentencing was explained by Steytler P (McLure & Miller JJA agreeing) in Gulyas v The State of Western Australia.[42] We adopt his Honour's analysis without repeating it. Advanced age is only one of the factors which a sentencing judge must take into account in order to arrive at a just sentence.
5. It cannot be said that the appellant, at 68 years of age, was at a very advanced age. There was no evidence before the primary judge, nor before this court, of the appellant suffering from any significant illness or of his life expectancy. There was nothing which would have enabled her Honour to conclude that there was a likelihood that the appellant would die in gaol or would leave gaol in such a state that he would have no reasonable expectation of a useful life after release.
6. Although in the context of intrafamilial sexual offending, the following observation made by Mazza JA in FJG is apt to the present case:[43]

Often the offenders have gone on with their lives in a way which has not adversely affected them. Frequently for the victims, the story is altogether different. Those who offend in this way must realise that their wrongdoing can lead to long terms of imprisonment even when they are old and believe that what is in the past will stay there.

1. There is no merit to the contention that the total effective sentence imposed upon the appellant infringed the second limb of the totality principle. Her Honour's approach was well open to her on the evidence and was, in our opinion, correct.
2. For all of the above reasons, it is not reasonably arguable that there has been an infringement of either limb of the totality principle. The ground of appeal has not been made out. Leave to appeal should be refused.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.

Research Associate to the Honourable Justice Murphy and the Honourable Justice Mazza

[1] Order of Buss P dated 2 June 2020; AB 4.

[31] See, for example, Kabambi v The State of Western Australia [2019] WASCA 44 [21]; Roffey v The State of Western Australia [2007] WASCA 246 [23] ‑ [26].

[32] WRT v The State of Western Australia [2020] WASCA 68 [65] - [66]; The State of Western Australia v PJW [2015] WASCA 113 [34] and VIM v The State of Western Australia [2005] WASCA 233; (2005) 31 WAR 1 [294].

[33] JDF v The State of Western Australia [2016] WASCA 221.

[34] GGM v The State of Western Australia [No 2] [2011] WASCA 259.

[35] The State of Western Australia v Prince [2011] WASCA 22.

[36] The State of Western Australia v CGT [2018] WASCA 226.

[37] JAW v The State of Western Australia [2016] WASCA 40.

[38] LFG v The State of Western Australia [2015] WASCA 88.

[39] Pennetta v The State of Western Australia [2013] WASCA 234 [39].

[40] CAND v The State of Western Australia [2018] WASCA 101 [48].

[41] Mills v The State of Western Australia [No 2] [2017] WASCA 52; (2017) 265 A Crim R 484 [52].

[42] Gulyas v The State of Western Australia [2007] WASCA 263; (2007) 178 A Crim R 539 [33] ‑ [54].

[43] The State of Western Australia v FJG [2012] WASCA 206 [71].