Criminal Code (WA), ss 329(2), 329(4), 329(9)(a), 329(10(a)

Sentencing Act 1995 (WA), ss 6, 6(2), 6(3), 7, 7(1), 8, 8(2), 8(4)

"D" v The Queen [2003] WASCA 33

Gray v The Queen, unreported; CCA Sct of WA; Library No 940409; 5 August 1994

Little v The Queen [2000] WASCA 87

McCartan v The Queen, unreported; CCA Sct of WA; Library No 9500008; 13 January 1995

1 MALCOLM CJ: This is an application for leave to appeal against sentence. The applicant was convicted in the District Court at Albany on 10 March 2003 on his plea of guilty to seven counts of sexual offences, being five counts of indecent dealing with a relative child, namely his stepdaughter, whom I shall refer to as "J", contrary to s 329(4) and s 329(10)(a) of the Criminal Code, who was his de facto child under the age of 16 years. He was also convicted of two counts of sexual penetration of a relative child under the age of 16 years.

2 At the hearing of the application, the applicant sought and obtained leave to amend his original grounds of appeal by substituting fresh grounds of appeal, namely:

"(1) The learned sentencing Judge erred in failing to give sufficient weight to:

(a) the applicant's pleas of guilty;

(b) the applicant's substantial co-operation with the police;

(c) the fact that the applicant volunteered that he had committed additional offences;

(d) the applicant's remorse; and

(e) the antecedents of the applicant.

(2) The learned sentencing judge erred in imposing sentences that were manifestly excessive in that:

(a) the sentences imposed exceeded the range of sentences that was probably applicable having regard to the matters set out in ground 1; and

(b) the sentences imposed exceeded the sentence available in the sound exercise of the sentencing discretion."

3 In sentencing the applicant, Healy DCJ noted that the applicant had pleaded guilty to seven offences, being five of various kinds of indecent dealing and two of sexual penetration, one with a finger and one by way of cunnilingus. The offences occurred between 1 September 2002 and 12 December 2002. The complainant was the applicant's lineal relative, being the child of his de facto wife. The complainant was under the age of 16 years at the time.

4 The applicant was the complainant's stepfather, who had lived with the complainant's mother on and off for approximately nine years. He has had natural children with the mother. The complainant is the applicant's eldest step-daughter and she regarded the applicant as her father at the material times and referred to him as "Dad" in her statement to the police. The complainant was aged 14 at the time the offences were committed. The applicant was aged 38. About a year before the first of the incidents which constituted an offence, the applicant began giving the complainant attention which the complainant described as like what one would expect between a husband and a wife rather than father and daughter. When interviewed on 12 December 2002, the applicant admitted that he had performed an act of cunnilingus on the complainant and that he had generally touched the complainant in an inappropriate way since the family moved into a new house at Albany in September 2002. This led to a further interview of the complainant by the police in which she made allegations which became the subject of counts 2, 3, 4 and 7 on the indictment.

5 On 19 December 2002, the applicant pleaded guilty in the Court of Petty Sessions at Albany to the four counts of indecent dealing and one count of sexually penetrating the complainant. He was committed to the District Court for sentence. On 12 February 2003, the applicant asked police to re-interview him at Albany Regional Prison as he had some further confessions which he wished to make. He had already disclosed further incidents to the psychologist who was preparing a report to accompany the pre-sentence report. The interview with the psychologist was interrupted while the investigating officers were contacted. He specifically told the interviewers that he did not want the complainant to be further questioned about the additional matters, because he did not want her to suffer any further stress by having to give her account of what happened. The applicant provided the police with a handwritten account of these additional offences dated 24 January 2003. One was of indecent dealing and the other was sexual penetration of the vagina with a finger.

6 His Honour said that in imposing sentence, the Court was required to impose sentences which were in proportion to the seriousness of the offending behaviour. That was to be determined by taking into account the penalties which can be imposed and the circumstances in which the offences were committed. His Honour said that the aggravating factor in this case was the age of the child. The penalty for the sexual penetration of a child under the age of 16 years is a maximum term of imprisonment for 20 years and the offences of indecent dealings of various types each carry a maximum term of imprisonment for 10 years. The learned Judge made it clear that the additional disclosures were to the applicant's credit. The applicant realised that until he had made full disclosure of his offending behaviour he would have no basis upon which to begin to rebuild his life and to deal with the issues that caused the offences to be committed. His Honour went on to say:

"The complainant was effectively your child. She had known you as her father for a number of years and referred to you as such. At the time of the offending behaviour you were 38, the child was, at the material time, 14, so there is a vast age difference between the two of you. It's clear from watching the videos and the statements that this child was singled out by you and given more attention than one would expect in a normal father-daughter relationship and that you began to behave in an inappropriate manner with her, walking in on her whilst she was in the bathroom, the way that you talked to her, the way that you touched her in family situations."

7 Count 1 on the indictment alleged that on a date unknown between 1 and 30 September 2002 at Albany, the applicant indecently dealt with the complainant, a child who he then knew to be his de facto child, by touching her on the breasts, contrary to s 329(4) and 329(10)(a) of the Criminal Code. It was alleged as a circumstance of aggravation that the complainant was then a child under the age of 16 years. The complainant was concerned about being overweight. The applicant asked the complainant to allow him to measure her. He took her to his office. He asked her to take off her skirt. He acknowledged in his statement that the complainant seemed nervous, but she did as she was asked because she trusted him. He used a tape to measure her waist, hips and inner thighs. At his request, she lifted up her shirt so he could measure her breasts. She also lifted up her top and bra. The applicant measured her breasts and then touched her on the breast. He tried to pull her underpants down, but she resisted. He asked if he could have a look at her vagina, but she refused. She put her clothes back on and they left the office.

8 Count 2 alleged that in the same period as count 1, the applicant again indecently dealt with the complainant by touching her on the vagina. On this occasion, the applicant was at home with the complainant while her mother was out. The applicant went into the complainant's bedroom when she was in bed. He sat beside the bed and talked to her. He started to rub his arm with his hand. He then put his hand inside her pyjama top and rubbed her breast over the top of her singlet. He then moved his hand between her legs and rubbed her in the vaginal area outside her pyjama pants. Count 3 was that on a date unknown in October 2002, at Perth, the applicant indecently dealt with the complainant by touching her on the vagina. The applicant was driving the complainant from Albany to Perth so that she could attend her grandfather's funeral. While the applicant was driving the car, he would reach across to rub the complainant's leg in an appropriate manner.

9 These incidents were not the subject of a separate count. That night they stayed at her mother's house. When the complainant went to bed, the applicant entered the room on the pretext of kissing her goodnight. He asked if he could get into bed with her, but she refused. He again asked if he could touch her, but she again refused. Notwithstanding these refusals, he started to rub her breasts and the area of her vagina over the top of her pyjamas. He tried to get under her panties, but she put her hands in the way. The complainant's grandmother then called out and the applicant left the room.

10 The offence the subject of count 4 was committed on the return journey to Albany the following day, when the applicant again touched the complainant in the area of her vagina. He also rubbed her legs and touched her breasts. The complainant tried to keep her legs closed but the applicant continually kept trying and became rough with her. She said he rubbed her "wherever her arms weren't" and forced her legs apart until she screamed at him to stop.

11 When they stopped at a roadhouse at Williams, the applicant told the complainant that it had just been an exercise, so that she would know what to do if she was in a stranger's car and in that situation. He mentioned to her that he would have to do the same for her younger sister. He assured her that he would never touch her or look at her in a sexual way again. These were the surrounding circumstances of count 4 which simply alleged that the applicant indecently dealt with the complainant by touching her on the vagina.

12 Count 5 on the indictment was that on a date unknown between 1 October 2002 and 12 December 2002 at Albany, the applicant sexually penetrated the complainant, a child who he then knew to be his de facto child, by penetrating her vagina with his finger, contrary to s 329(2) and 329(9)(a) of the Code, when the complainant was a child under the age of 16 years. This offence occurred at home in Albany, after the complainant had gone to bed. The applicant went into her bedroom. He moved his hand underneath the complainant's knickers and briefly touched her, penetrating her labia and touching her clitoris.

13 The offence the subject of count 6 occurred on 16 November 2002. The complainant's mother was away in Perth overnight. The applicant came into the complainant's bedroom. He sat on the edge of the bed near her head. He asked her if he could touch her and let him taste her. She said "no". He then sat on her and straddled her stomach with his knees and turned around so that his bottom was facing her face. Her arms were pinned down by her side with his knees and he forcibly removed her pyjama pants. The complainant was screaming at the applicant and scratching him. She told him not to do it. He then forcibly held her legs apart with his hands and briefly performed oral sex on her until she kneed him in the eye. The applicant stopped momentarily and then he again forced her legs open, licked her around her clitoris and penetrated her vagina with his tongue. She was screaming and punching him on the back. He desisted a short time later.

14 When he was interviewed by the police, the applicant, while admitting the incident, said that he only performed oral sex on the complainant once and denied that she scratched or punched him during the incident.

15 The final offence the subject of count 7 occurred in December 2002, between 1 and 12 December. Again, on an occasion when the complainant was in bed in her bedroom, the applicant came in and sat on her bed, and rubbed her on the vaginal area, outside her clothing. He got into bed and started talking to the complainant about giving her an orgasm. He turned her on her back and was touching and rubbing her vagina on the top of her knickers. He then exposed his penis and placed it on her leg and rubbed it until he ejaculated on her leg and panties. He then got out of bed, pulled up his pyjama pants and left the room. The complainant changed and washed her clothes before going back to sleep.

16 The following day, the applicant asked the complainant how she had felt about what he had done on the previous occasion and offered her money to let him do the same thing again. He also offered her money, a ring and a computer if she allowed him to perform oral sex on her for 5 minutes. She said "no". He thanked her and acknowledged that she was not a prostitute.

17 His Honour noted that he had had the benefit of a victim impact statement prepared by the mother of the child, regarding the effect the offending behaviour had had on the child, other members of the family and on her mother. His Honour said that:

" ... although those statements can't allow the Court to impose a harsher sentence than what otherwise might be appropriate in the circumstances, they are, of course, very useful to the Court in understanding the impact of the behaviour on the child who is principally concerned and on other members of the family, including the mother.

It's clear that these offences have affected the child and will continue to affect the child. It's something that she will live with for her whole life, and it affects other members of the family who feel that maybe they should have done things to stop this offending behaviour occurring. Those matters they will have to deal with in their own way during their lives."

18 The learned Judge then noted that, at the time of sentencing, the applicant was 38 years of age. He was the middle child of a family of five children. He had obtained certificates in business information and information technology. His relationship with the complainant's mother began in 1995. The applicant had inherited his partner's children and also had three children of his own with his wife.

19 According to the pre-sentence reports, the applicant had difficulties in his own family and left Western Australia for Queensland where he worked for many years, before returning to Western Australia. On his return he undertook a course of further study which equipped him to run his own business as a computer consultant. The applicant did not have any relevant prior record of offending.

"The pre-sentence report demonstrates that you had a totally wrong appreciation of a relationship that you should have with your daughter. When she started to mature you began to see her as a woman and somebody you could have a full relationship with.

You have told the writer of the report that you had given her fatherly advice on sexual matters, but in the writer's opinion, the way that you expressed those matters indicated that you were behaving in a salacious or a lustful manner. The writer believes that you have shown a high degree of contrition and that you have not asked for bail after the initial granting of bail and have remained in custody since December.

After your marriage, you and your wife were committed members of a church. Because of your offending behaviour you have now been excommunicated and have no further contact with that church community. Your wife describes you as being a domineering and manipulative person, and clearly the marriage was under some considerable stress."

21 His Honour noted that in the past, the applicant had used cannabis. While that had ceased, the applicant had continued to drink. His Honour remarked that on occasion, the applicant had "maybe" drunk to excess. People who knew the applicant had been shocked by his behaviour. They had only known him as a personable and pleasant man, incapable of this type of behaviour.

22 The learned Judge noted that the psychological report was "written in two halves", as his Honour put it:

"Basically after the first interviews you made further confessions to the police and then were interviewed further to complete the report. The background information contained in that report coincides with the pre-sentence report in relation to your own childhood history. You have attempted suicide, the second attempt being after the current offences came to light.

The tests administered did not show up any psychological illness, but indicated traits of dependency and social withdrawal, some lack of sophistication. There were signs of low self-esteem and currently you are taking medication for depression. The writer of that report is of the opinion that you saw the complainant, albeit a young girl of 14, as your social equal and tended to minimise your offending behaviour by stressing that you didn't penetrate her with your penis.

You seem to have been willing to put the responsibility of her telling her mother onto the complainant and didn't seem to appreciate that your actions would arouse emotions in her which would make it very difficult, if not impossible for her to disclose what had happened. Fortunately, she did at a relatively early time in the offending behaviour.

On the risk assessment model you are considered to be a medium to low risk of reoffending. You volunteered additional offences, and that's something which is unusual, and you have expressed your willingness to undergo treatment. The writer of [the] psychological report thought that you had presented yourself as being co-operative, but being somewhat naïve and self-involved, tending to focus on your own difficulties and marriage as excuses for your behaviour rather than accepting full responsibility for your actions.

When one comes to look at sentencing for these types of offences one must consider the overall gravity of the offending behaviour, and these involve two offences of sexual penetration, five offences of indecent dealing, touching of breasts over the clothing and in the vaginal area. The Court should not overlook the necessity to punish you, which sometimes can be overlooked in the sentencing process. The Court must also protect the public from the activities of someone who is prepared to abuse a familial relationship in this gross way. The Court is always concerned to uphold the public concern for sexual offences against young children and the Court hopes that sentences have a deterrent effect upon others who may be minded to act in the same way."

23 The learned Judge noted that the offences occurred, not on the one occasion, but over a period of 4 months or so. As his Honour said:

"There was a complete breach of trust of the girl in relation to your role as her father. She was grossly taken advantage of because of your position in the family. The offences were repeated over a period of some months. They were gone about slyly, without attracting attention of others who may put an end to it. There has been a degree of remorse shown by your plea of guilty and further confessions.

The impact on the child doesn't have to be the subject of any particular evidence. This type of offending behaviour clearly must have an impact as to how the child views relationships with other people she would expect to have trusting relationships with in her life. In my view, there is no alternative but to [impose] immediate terms of imprisonment in relation to these offences. In saying that, the Court has to be mindful that the totality of the sentence must leave some prospect of rehabilitation at the end of the day for the offender."

24 In the result, the learned Judge sentenced the applicant to imprisonment for 2 years in respect of the offence the subject of count 1 on the indictment, to be served cumulatively. Sentences of imprisonment for 2 years were imposed in respect of counts 2, 3, 4 and 7, to be served concurrently with each other and with the sentence of 2 years imposed in respect of count 1. In respect of count 5 on the indictment, a sentence of 6 years' imprisonment was imposed and on count 6 a further sentence of imprisonment for 6 years was imposed to be served concurrently. In the result, the total term of imprisonment imposed was 8 years. The learned Judge noted that two-thirds of that term less 2 years, namely 5 years and 4 months would be spent in custody and that the applicant would spend a maximum of 2 years on parole. Each of the sentences were backdated to 17 December 2002, when the applicant first went into custody. The applicant had no prior relevant record at the time of the offences.

25 It was submitted on behalf of the applicant that he came to be sentenced having become filled with an overwhelming sense of guilt. He provided unconditional co-operation to the authorities and was genuinely remorseful for his actions. He was spoken to by the police on 12 December 2002 and gave a statement that outlined what became count 6 on the indictment. The applicant readily admitted that what the complainant had told the police was essentially correct. He participated in a video record of interview and it is apparent from that interview that he demonstrated remorse. He was in tears when he admitted his conduct.

26 The applicant also admitted in the course of the record of interview that further incidents had occurred between himself and the complainant. Following the additional disclosures made by the applicant, the complainant was spoken to again by the police and the complainant then provided the further statement dated 13 December 2002 which formed the basis of what became counts 2, 3, 4 and 7 on the indictment. Those which were voluntarily disclosed included count 5, which involved penetration of the vagina with the finger.

27 On 17 December 2002, the applicant appeared in the Court of Petty Sessions at Albany. At his own request he was remanded in custody. Prior to this happening, he requested his solicitor to contact the investigating officer so that his wife could be notified that he would be vacating the family home, and that his wife and stepdaughter could return to the home should they wish to do so.

28 Two days later, on 19 December 2002, the applicant appeared in the Albany of Court of Petty Sessions and entered a fast-track plea of guilty to the five charges which had then been preferred against him. The charges were one of sexual penetration, which was the cunnilingus, and four counts of indecent dealing. The applicant was then interviewed while in custody for the purposes of a pre-sentence report and a psychological report. When this was happening, it became clear to him that in order to address his problems he ought to disclose any further offences that he had not already been charged with. This he did of his own volition and contacted the investigating officer for the purpose of making additional admissions.

29 On 24 January 2003, the applicant provided to police a handwritten statement outlining the further offences than he had committed. At his own request he participated in a second record of interview with the police on 12 February 2003.

30 In my opinion, the individual sentences imposed in respect of the individual offences were comparatively lenient in all the circumstances, as was the totality of the sentences. The contention that the learned sentencing Judge failed to give sufficient weight to the matters referred to in the grounds of appeal is entirely without merit. The offences appear to have been premeditated and proceeded by the applicant "grooming" the complainant by giving her what he described as "fatherly advice" in relation to sexual matters. According to the author of the pre-sentence report, rather than giving "fatherly advice", the applicant was behaving towards the complainant in "a salacious manner".

31 The learned Judge noted that the applicant had pleaded guilty to the commission of seven offences committed against the complainant. Five were offences of indecent dealing and two were by way of sexual penetration of the vagina, one with a finger and one by cunnilingus. The offences occurred between 1 September 2002 and 12 December 2002.

32 The risk assessment in the Psychological Report was that there were more factors which served to increase what would otherwise be a medium to low risk of re-offending. There were occasions when the applicant had been drinking which increased the risk of offending. His own victimisation issues were said to increase the risk. He also chose a victim in respect of whom he was in a position of power and authority. The risk of re-offending was also increased because he had difficulty in fully understanding his responsibility and the situation in which he found himself as a stepfather. It was considered that he had problems with impulse control. His psychometric assessment results indicated some defensiveness and lack of accountability, which matched his attempts to minimise and justify his offending behaviour.

33 Against these negative factors, there were factors which reduced the risk of re-offending, namely, his admissions of guilt, the fact that he volunteered admissions in respect of additional offences which became part of the build-up to other offences, his pleas of guilty and willingness to engage in treatment. He was assessed as being of medium risk of re-offending in a sexual manner, but suitable for treatment within the prison system. He was not, however, considered suitable for the Community Based Sex Offenders Treatment Programme because of his inability to accept full responsibility for the commission of the offences.

34 It was to the applicant's credit that he demonstrated a high degree of contrition. He pleaded guilty at the very first opportunity and at his first court appearance in the Court of Petty Sessions on 17 December 2002. He did not apply for bail and had been in custody since 17 December 2002. The learned Judge gave him full credit for this by backdating the sentences until 17 December 2002.

35 His Honour was clearly mindful of the totality principle in the sense of the need to avoid a crushing sentence and ensure there was some prospect of rehabilitation.

36 Had the sentences been imposed cumulatively, the total of the sentences imposed would have been imprisonment for 22 years. In my opinion, it cannot be maintained that any of the individual sentences were manifestly excessive. Each of the individual sentences was well within the range of a sound discretionary judgment, taking full account of the fact that a "tariff" in such cases has been found elusive: for example, see R v Ginder (1987) 23 A Crim R 1; Woods v The Queen (1994) 14 WAR 341 per Anderson J at 345, 346; Cook v The Queen [2000] WASCA 78 at [140] - [143] and [146], and Trescuri v The Queen [1999] WASCA 172.

37 In my view, the offences committed by the applicant were of an increasing degree of seriousness. The offence the subject of counts 6 and 7 were particularly serious examples of the type of offence involved. All of the offences involved a gross breach of trust and clearly had a major adverse impact on the applicant.

38 It was clearly to the applicant's credit that he not only acknowledged his guilt when the allegations were put to him, but also volunteered information which led to him being convicted of additional offences beyond those which were first alleged by the complainant. Had all the sentences imposed have been made cumulative, the totality principle would have been infringed because a sentence of 22 years would have been a crushing sentence: cf Pearce v The Queen (1998) 194 CLR 610 at 623 - 624 per McHugh, Hayne and Callinan JJ. It is apparent that the total of the sentences in fact imposed is 14 years less than the total which could have been imposed. In my opinion, the scale of the reduction was such that it is apparent that the learned sentencing Judge must have taken into account all of the relevant mitigating factors as well as the totality principle. Subject to any statutory requirement, there is no principle of the general or common law relating to sentencing which would require the sentencing Judge to spell out the reduction made on account of each mitigating factor operating on the sentences imposed. The instinctive synthesis approach adopted by the High Court and the rejection of the "two-stage" sentencing approach by most intermediate appellate courts in Australia referred to by Gaudron, Gummow and Hayne JJ in Wong v The Queen (2001) 207 CLR 585 at 611 - 612 holds it to be wrong to articulate a starting point from which deductions are made on account of mitigating factors.

39 In Western Australia, ss 6, 7 and 8 of the Sentencing Act 1995 (WA) ("Sentencing Act") set out a number of statutory sentencing principles. These include the need to ensure that the sentence imposed is commensurate with the seriousness of the offence. In this respect, the offences the subject of counts 6 and 7 on the indictment and, in particular, count 6 were very serious offences. As s 6(2) of the Sentencing Act provides, the seriousness of an offence is determined by taking into account the statutory penalty for the offence, the circumstances of its commission, including the vulnerability of the victim, any aggravating factors, and any mitigating factors. Section 6(3) acknowledges that a sentence may be reduced by both mitigating factors and the totality principle. Section 7(1) of the Act refers to a number of aggravating factors which may be taken into account by the Court in increasing the culpability of the offender.

40 Section 8(2) provides that a plea of guilty is a mitigating factor and, in particular, provides that the earlier in the proceedings that it is made, the greater the mitigation.

41 The learned Judge specifically acknowledged that the applicant had pleaded guilty to the five original counts in the indictment at the first opportunity and that he had also disclosed two further offences to the psychologist who interviewed him. A further statement was made to the police and a plea of guilty entered in respect of these offences at the first opportunity. It is not necessary for the Judge to spell out the precise extent of the reduction. Section 8(4) of the Sentencing Act provides only that if the Court reduces a sentence because of a mitigating factor, " ... the Court must state the fact in open Court." His Honour complied with that provision when he noted that there had been "... a degree or remorse shown by your plea of guilty and further confessions."

42 While it may have been preferable for the learned Judge to have stated in more specific terms the way in which the various factors had been taken into account, it is apparent from the way the sentences were structured that the end result produced a total sentence in conformity with the totality principle and which, bearing in mind the significant reduction in the totality of the sentences, in my opinion, was clearly within the range of sentences appropriate for both the individual offences and their totality.

43 In my opinion, neither of the grounds of appeal have been made out. I would dismiss the application for leave to appeal.

44 STEYTLER J: I have had the advantage of reading the judgment of the Chief Justice. I agree with it. There is nothing I wish to add.

45 MILLER J: I have had the opportunity of reading in draft the reasons for judgment of the Hon the Chief Justice. I agree with those reasons and I too would dismiss the application for leave to appeal.