Court of Appeal (WA)|2001-06-07|Before: Miller J, Malcolm CJ, Wallwork J

Wimbridge v The Queen [2001] WASCA 248 (7 June 2001)

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

CITATION : WIMBRIDGE -v- THE QUEEN [2001] WASCA 248

Criminal law - Sentence - Sexual offences - Relevance of acquittal on one of three counts - Turns on own facts

1 WALLWORK J: I invite Miller J to deliver his reasons in this matter.

2 MILLER J: The applicant was convicted in the District Court of Perth on 4 October 1999 on two counts of sexual penetration without consent of his daughter, who was at the relevant time respectively 18 and 19 years of age. The applicant had faced an indictment which contained a third count of sexual penetration without consent in relation to which he was acquitted by the jury. The applicant was sentenced on the first count to imprisonment for 2 years and on the second to imprisonment for 6 years. The sentences were ordered to run cumulatively.

3 The learned trial Judge considered the starting point for the sentence to be one of imprisonment for 8 years, but pointed out that had it not been necessary to consider the totality principle, the overall sentences imposed upon the applicant would have been much higher; that is, something in the region of 3 to 4 years on the first count and 6 years on the second count.

4 The applicant seeks leave to appeal against the sentences, contending that the learned trial Judge erred in concluding that there was a total absence of remorse on the part of the applicant and erred in concluding that the basis of the applicant's defence was that the complainant had lied. In respect of this latter ground, the applicant was pointed out that he had been acquitted on the third count.

5 The application for leave to appeal is approximately 15 months out of time. The applicant seeks an extension of time within which to make the application, the grounds being, in essence, that he had awaited the outcome of an appeal against conviction which was not known until 5 May 2000 and had then decided on an application for leave to appeal against sentence. Difficulties in arranging funding for the application meant that it was not until the end of January 2001 that the applicant was able to put his solicitor in funds for the application.

6 It has been said many times in this Court that in a case of lengthy delay, the Court will require exceptional circumstances to be shown before an extension of time will be granted, unless it can be shown that there will be a miscarriage of justice if an extension is not granted: Gavin v R (1992) 6 WAR 195 per Malcolm CJ at 198. In the present case there has been a very lengthy delay and it can hardly be said that the applicant has shown exceptional circumstances which would justify the extension of time. The essential question is whether there would be a miscarriage of justice if that extension was not granted. This requires a consideration of the merits of the application.

7 The background to the two offences committed by the applicant was properly described by the learned trial Judge as "as tragic as one can find". It appears that the applicant's daughter had only found him and made contact with him at the age of 14 or 15 years, following which she was overjoyed at the prospect of having what the trial Judge described as a father figure with all the attendant benefits that this brought with it. They included in this case aspects of wealth and influence in various community and sporting affairs.

8 The first offence committed by the applicant was one of digital penetration. It occurred on an occasion when the applicant and his daughter had returned from a 21st birthday party. The applicant had been drinking, and it appears that his daughter was prepared to forgive and forget in relation to what he had done. She wrote to the applicant to that effect and he, in turn, apologised to her.

9 The second incident was an occasion of penile penetration and was committed in a bus. According to the trial Judge, it occasioned a dreadful shock to the applicant's daughter. Nevertheless, she was still prepared to continue her relationship with her father notwithstanding the grossest abuse of it by him.

10 The learned trial Judge had before him a victim impact statement of the complainant which indicated that she had suffered extraordinary depression and anxiety and had required counselling. Whether or not she will ever recover from the effects of the experiences she endured is unknown. The trial Judge described her emotional injury as very, very great. The fact that the complainant continued her association with the applicant after the commission of these offences is, in my view, of no mitigation.

11 The learned trial Judge made the point that the applicant had defended the proceedings. He pointed out that he had every right to do so, but found there to have been a total absence of remorse on the part of the applicant. He added:

"The basis of your defence of these proceedings is that your daughter has lied, there could be no mistake, and that from a father, again, is a remarkable attitude."

12 Counsel for the applicant has submitted that the learned trial Judge misstated the true position. He points out that the applicant had defended three counts and had been acquitted on one, which was arguably the most serious count, it alleging forced penile penetration involving a violent assault upon the complainant. Further, counsel for the applicant points out that the learned trial Judge had found as a fact that the applicant had apologised to the complainant after the first offence. It was also argued that the learned trial Judge's comment about the basis of the applicant's defence failed to give proper consideration to the fact that a not guilty verdict was reached in relation to the third count upon the indictment. I cannot see, however, that the learned trial Judge's observations in relation to remorse and the basis upon which the applicant had defended the proceedings were in any way in error. The learned trial Judge was not talking about the third count on the indictment, but the first two, in relation to which the applicant was convicted. It was not submitted at the hearing that there was any remorse on the part of the applicant in relation to those two offences and the learned trial Judge was entitled to find that there was none. Although this did not aggravate the sentence which was to be imposed, it did not provide any mitigation. The observation in relation to the conduct of the defence was justified in relation to the first two counts on the indictment. It is to be stressed that it is the first two counts in relation to which the applicant was being sentenced. The jury verdict in relation to the third count was, in my view, irrelevant to the sentencing process. The fact that the jury was not satisfied beyond reasonable doubt of guilt on that count could not influence the outcome of the sentencing of the applicant.

13 Cases of intra-family sexual assault of young children have traditionally attracted heavy sentences in this Court: that is, sentences of 8 years or more in total: Woods v R (1994) 14 WAR 341 per Anderson J at 354. Such cases often involve the victimisation of more than one child and/or multiple offending over an extended period of time. Where violence, cruelty, aggression or threats are also involved, some cases have attracted very heavy sentences. In Woods v R, Anderson J reviewed a range of sentences which had been imposed in relation to offences of sexual assault against young children in which the Court had imposed sentences of 8 years or more. The ages of the children ranged up to 17 years and the sentences themselves ranged between 10 and 15 years. Anderson J pointed out that there were many other cases in which sentences of between 8 and 12 years had been imposed in cases of this nature, but also many cases in which sentences of 6 years or less had been imposed. His Honour gave a number of examples of cases involving sentences of 6 years or less, but in all instances the sexual assaults involved less than penile penetration.

14 It remains the case that Podirsky v R (1990) 3 WAR 128 is the benchmark for sexual assaults which involve penile penetration. In that case the prisoner had been convicted of two counts of rape upon an adopted daughter. He successfully appealed his conviction on one count and was resentenced by the Court of Criminal Appeal on the remaining count. The sentence imposed was 8 years' imprisonment to be served cumulatively upon other sentences in relation to a stepdaughter. The Court of Criminal Appeal pointed out (at 140 to 141) that subject to the application of the totality principle, the appropriate sentence proportionate to the gravity of the offence of rape committed by the prisoner on a 14-year-old adopted daughter would be 10 years, and this for a single act of rape. Application of the totality principle reduced the sentence from 10 to 8 years.

15 A consideration of the decided cases therefore fully supports the sentences imposed by the learned trial Judge in this case. Although the age of the complainant was higher than the ages of some of the complainants in the cases reviewed in Woods v R by Anderson J, the age difference is only marginal and I respectfully adopt what Wallwork J said in relation to that issue.

16 Further, this case involved one incident of digital penetration and one of penile penetration. The sentence of 6 years' imprisonment for penile penetration was entirely appropriate and in accordance with the authorities. The sentence of 2 years was entirely within the range that could have been imposed and the overall sentence of 8 years cannot, in my view, be contested. There was in this case quite simply nothing that could be said in favour of the applicant.

17 As was pointed out by Anderson J in Woods v R (at 345), the dominant sentencing considerations in cases such as this are punishment by way of general and personal deterrence. The sentences imposed by the learned trial Judge in this case were directed at achieving that end. Although it was argued that the sentences should have been concurrent, they were separate and discrete offences, separated in point of time and of different import. There was, in my view, no basis for the sentences being concurrent. I would therefore refuse the application for extension of time within which to appeal.

18 WALLWORK J: I agree with the reasons for judgment which Miller J has just stated and with the order he proposes. I wish to add that I can see no error in this case in the approach which the learned sentencing Judge adopted. In my view, the sentences were both within the permissible range, as was the total aggregate sentence. I also refer to the reasoning of the High Court in their recent decision in Lowndes v R [1999] HCA 29; (1999) 195 CLR 665 where the importance of the discretion which the law imposes in the sentencing Judge is emphasised. That is all I wish to say.

19 PIDGEON AUJ: I agree with the reasons of Miller J and with the further observations of the presiding Judge.

Wimbridge v The Queen [2001] WASCA 248

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Wimbridge v The Queen [2001] WASCA 248 (7 June 2001)

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