SMITH -v- THE STATE OF WESTERN AUSTRALIA [2012] WASCA 239 (23 November 2012)

Last Updated: 23 November 2012

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE COURT OF APPEAL (WA)

CITATION : SMITH -v- THE STATE OF WESTERN AUSTRALIA [2012] WASCA 239

CORAM : McLURE P

BUSS JA

MAZZA JA

HEARD : 22 AUGUST 2012

DELIVERED : 31 AUGUST 2012

PUBLISHED : 23 NOVEMBER 2012

FILE NO/S : CACR 208 of 2011

BETWEEN : NIGEL BRUCE SMITH

Appellant

AND

THE STATE OF WESTERN AUSTRALIA

Respondent

ON APPEAL FROM:

Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA

Coram : EATON DCJ

File No : IND 561 of 2011

Catchwords:

Criminal law - Appeal against sentence - Sexual penetration of a lineal relative contrary to s 329(7) of the Criminal Code (WA) - No prior relationship - Seriousness of offence generally - Whether sentence of immediate imprisonment manifestly excessive in the circumstances - Turns on own facts

Legislation:

Acts Amendment (Sexual Offences) Act 1992 (WA)

Criminal Code (WA), s 197 (repealed), s 198 (repealed), s 329

Result:

Appeal allowed

Appellant resentenced

Category: A

Representation:

Counsel:

Appellant : Mr C L J Miocevich

Respondent : Ms S H Linton

Solicitors:

Appellant : C & G Miocevich Law Offices

Respondent : Director of Public Prosecutions (WA)

Case(s) referred to in judgment(s):

Narkle v Hamilton [2008] WASCA 31

1 McLURE P: This appeal against sentence was allowed on 31 August 2012. On that date the court ordered (inter alia) that: the sentences imposed by the sentencing judge be set aside and in lieu thereof the appellant be sentenced to 12 months' imprisonment on each of counts 6, 7, 12 and 20 and to 8 months' imprisonment on each of counts 11 and 18; all the sentences be served concurrently; the terms of imprisonment be suspended for 11 months; and the suspended terms of imprisonment be taken to have taken effect on 27 September 2011.

2 I agreed with the majority that the appeal should be allowed. However, I would have imposed a community based order. These are my reasons for those conclusions.

3 The appellant was charged on indictment with 32 sexual offences against three complainants. On 11 August 2011, four days prior to the scheduled commencement of the trial, the appellant pleaded guilty to six counts of sexually penetrating one complainant who he knew to be his lineal relative, contrary to s 329(7) of the Criminal Code (WA) (the Code). The State accepted those pleas in full satisfaction of the indictment.

4 The offences occurred in the period 1 August 2009 to 31 December 2009. They involved four counts of penile penetration of the complainant's vagina and two counts of fellatio.

5 The appellant is the biological father of the complainant, who was aged 19 at the time of the offences. The complainant had never met or had any contact with the appellant prior to July 2009. She had been raised by her mother. The sexual conduct the subject of the offences of which the appellant was convicted was consensual.

6 On 27 September 2011 the appellant was sentenced by Eaton DCJ to a term of 12 months' imprisonment for each offence of penile penetration and 8 months' imprisonment for each of the fellatio offences. Two sentences of 12 months were ordered to be served cumulatively, resulting in a total effective sentence of 2 years' imprisonment. The appellant was made eligible for parole.

7 There are three grounds of appeal. The appellant contended first, that the sentencing judge erred by placing too much weight on what was described as a 'complete failure of the appellant[']s parental obligations and abuse by the appellant in circumstances where the appellant had no relationship with his daughter until she turned 19'; second, that the individual sentences and the total sentence were manifestly excessive in both type and length; and third, if terms of imprisonment were appropriate, the sentencing judge erred in failing to suspend the terms of imprisonment.

The offence, its context and history

8 Section 329 of the Code deals with sexual offences by relatives. Subsections (2) - (6) of s 329 criminalise sexual conduct against a child (any boy or girl under the age of 18 years) who the offender knows is his or her lineal relative (a lineal ancestor, lineal descendent, brother or sister) or a de facto child (a step-child of the offender or a child or step-child of a de facto partner of the offender).

9 The proscribed conduct is sexual penetration (s 329(2)); procuring, inciting or encouraging a child to engage in sexual behaviour (s 329(3)); indecent dealing (s 329(4)); procuring, inciting or encouraging a child to do an indecent act (s 329(5)); and indecently recording a child (s 329(6)).

10 The maximum penalty for an offence under subsection (2) or (3) of s 329 is 20 years' imprisonment where the child is under the age of 16 years and 10 years' imprisonment where the child is of or over the age of 16 years (but under the age of 18 years). The maximum penalty for the offences under subsections (4), (5) or (6) of s 329 is 10 years where the child is under the age of 16 years and 5 years where the child is of or over the age of 16 years (but under the age of 18 years).

11 Section 329(7) and (8) of the Code provide:

(7) A person who sexually penetrates a person of or over the age of 18 years who the offender knows is his or her lineal relative is guilty of a crime and is liable to imprisonment for 3 years.

(8) A person of or over the age of 18 years who consents to being sexually penetrated by a person who he or she knows is his or her lineal relative is guilty of a crime and is liable to imprisonment for 3 years.

12 Unlike the general scheme created by s 329, the offence in s 329(7):

does not apply to a person over the age of 18 years who was the offender's de facto child;
is confined to sexual penetration; and
attracts a significantly lower penalty than a s 329(2) offence.

13 Moreover, s 329(8) criminalises the conduct of the lineal relative if he or she consented to being sexually penetrated.

14 It is an offence to sexually penetrate another person without their consent (s 325) or to coerce another person to engage in sexual behaviour (s 327). The maximum penalty for those offences is 20 years if there are circumstances of aggravation, otherwise 14 years. These non-consensual sexual offences apply to all persons, including lineal relatives.

15 Section 329(7), in common with the other offences in s 329, does not depend on proof of absence of consent. The offence will be committed if the conduct is consensual or if the evidence falls short of establishing that the conduct was consensual. On the other hand, the offence in s 329(8) only applies where consent is established.

16 Section 329 was inserted by the Acts Amendment (Sexual Offences) Act 1992 (WA) (the 1992 Amendment Act). The second reading speech states:

New section 329 reforms the law on incest. The Criminal Code already makes it an offence to have sexual relations with a lineal relative. In today's society many children are being brought up in households where there is a step parent or a de facto partner of the parent living in the household. Children are just as vulnerable to exploitation by such people as they are to exploitation by blood relatives, and the new provision extends the prohibition on sexual misconduct to these people (Western Australia, Parliamentary Debates, Legislative Assembly, 27 May 1992, 2767 (Mr Pearce, Leader of the House)).

17 There is no explanation for confining s 329(7) to lineal relatives or for the significant reduction in the penalty. The precursors of s 329(7) and (8) were s 197 and s 198 of the Code which were appealed by the 1992 Amendment Act. The former provisions relevantly provided:

Incest by male

Any person who carnally knows a woman or girl who is, to his knowledge, his mother or daughter or other lineal ancestress or descendant, or his sister or half sister, is guilty of crime, and is liable to imprisonment with hard labour for 20 years.

It is immaterial that the carnal knowledge was had with the consent of the woman or girl.

...

Incest by adult female

Any woman or girl of or above the age of 18 years who permits her father or son or other lineal ancestor or descendant, or her brother or half brother, to have carnal knowledge of her, knowing him to be her father or son or other lineal ancestor a descendant, or her brother or half-brother ... is guilty of a misdemeanour, and is liable to imprisonment with hard labour for 3 years.

18 At that time, it was also a criminal offence for adult males to engage in consensual sexual conduct.

19 The original motivation for criminalising sexual penetration between adult relatives was eugenics, genetics and objections based on moral and religious grounds: Model Criminal Code, Chapter 5, Sexual Offences Against the Person Report (1999) 189. This report was prepared by the Model Criminal Law Officers Committee of the Standing Committee of Attorneys-General (the Committee). The Committee recommended in a discussion paper that sexual contact between adults over the age of consent should not be an offence. The recommendation was greeted with overwhelming opposition. The Committee retreated, recommending that the offence be limited to penetrative acts of a sexual nature; that it not be specific with regard to gender or sexuality; and that it not cover adoptive, de facto and step-relationships. These recommendations are consistent with the scope of s 329(7) of the Code.

20 The Committee explained the exclusion of adoptive, de facto and step-relationships, saying:

[T]he offence of adult consenting incest should not be extended to the countless circumstances in which there may be some degree of potential 'power imbalance' arising from present or past domestic arrangements between two adult individuals (199).

21 Indeed, power imbalances are an incident of many adult sexual relationships.

The agreed facts and findings

22 The appellant was aged 39 or 40 at the time of the offending and had no relevant prior convictions. He was no longer in a relationship with the complainant's mother when the complainant was born. He played no role in her upbringing.

23 Some time in July 2009, shortly after the complainant had turned 19, she was contacted on Facebook by one of the appellant's sons. Following that first contact, the complainant had a telephone conversation with the appellant and then, a week later, met him and his family at his home for the first time. The appellant was living in a long-term relationship with his partner with whom he had seven children, four of whom were still living in the home.

24 Within a few weeks of the first meeting, the complainant moved out of the home she shared with her partner and into the appellant's home. Sometime in August 2009 the appellant made a sexual advance towards the complainant in the presence of the complainant's friend. After that initial approach, the appellant and the complainant engaged in a consensual sexual relationship.

25 The full prosecution brief, including the complainant's deposition, was formally tendered at the sentencing hearing. The agreed facts were read to the court by the prosecutor. However, the sentencing judge's remarks strayed well outside the agreed facts. In the course of his reasons, the sentencing judge made frequent references to what the complainant said in her deposition. She said that the appellant in his dealings with her was watchful and controlling. She described behaviour that the sentencing judge described as 'well outside the bounds of proper parental conduct' (ts 109 - 110). Indeed, the impression conveyed by the complainant's deposition as a whole is that the appellant engaged in intimidating and coercive conduct that went to the reality of the complainant's consent. The appellant's counsel, quite properly, objected to the prosecutor's reliance on the deposition. Notwithstanding the appellant's objection, there was no trial of issues.

26 The sentencing judge found that, as a member of the appellant's household, the complainant was in his care and under his influence (ts 111). The sentencing judge said:

It matters not that she was ... an adult and a willing participant. She may well have been, as teenagers often are, sexually experienced and perhaps even aggressively so. The images sent to you from her mobile phone suggest a highly sexualised relationship (ts 111).

27 The State submitted that there had been a breach of trust, a proposition not accepted by the sentencing judge. However, he said:

[I] am satisfied, beyond reasonable doubt, that the relationship between you was far from equal. You were, at the material time, a fully mature adult male and she was barely out of adolescence. You were her father. She, having been raised as an only child, was welcomed by you into your family and your home. As such, she came under your influence and, it seems, your control. You abused, in my view, those circumstances (ts 111). (emphasis added)

28 The findings in italics must be based on material in the complainant's deposition. On the subject of the appropriate penalty, the sentencing judge said:

It is true that the Criminal Code provides for a maximum penalty of three years' imprisonment which, in the context of offences dealt with in that particular chapter of the Code, is not particularly severe. I do regard your offending, however, as being offending of a serious nature that does require the imposition of a term of imprisonment to be immediately served. This is not offending which, in my view, can or should be dealt with by imposing a term of imprisonment and suspending that term (ts 112).

29 The sentencing judge discounted the sentences by one third for all mitigating factors.

The grounds of appeal

30 The language employed by the sentencing judge in his reasons is commonly used in sentencing for intra-familial sexual offending against children ('in your care', 'under your influence', 'under your control', 'abuse of influence and control', 'complete failure of his parental obligations').

31 The only factual foundation for these conclusions can be the complainant's deposition, the use of which had been objected to by the appellant as inconsistent with the agreed facts. There was no trial of issues. As the material was relied on as aggravating the offending it had to be proved beyond reasonable doubt. It was not, and the material should have been ignored.

32 This is a material error that enlivened this court's power to intervene in the sentencing process. In addition, there was no express acknowledgement by the sentencing judge that the sexual conduct was not in any way attributable to any parenting role played by the appellant during the complainant's formative years. There was also a failure to recognise that the offence in s 329(7) is different in nature, and significantly less serious, than its closest equivalent in s 329. This is highlighted by the fact that, where the conduct is consensual, both parties commit an offence.

33 In this case, the appellant had no contact at all with the complainant whilst she was a 'child', as that term is defined in the Code. His only 'relationship' with the complainant before the commencement of the

offending was biological. His position was analogous to that of a sperm donor. Approximately a month after they first met, they commenced a consensual sexual relationship. It is more likely that happened despite their biological connection rather than because of it. In all the circumstances, the appellant's offending is at the low end of the scale of seriousness of offences under s 329(7). A sentence of immediate imprisonment was inappropriate and manifestly excessive.

34 There being error in the sentencing process, this court could intervene and re-sentence the appellant. He had positive antecedents and accepted that his conduct was inappropriate. There was no justification in the proven facts to support a conclusion that the appellant was at risk of re-offending in this way. Prevalence of this type of offending is not an issue. Notwithstanding the very high number of sexual offence cases that routinely come before this court, this is the first occasion on which it has considered an offence under s 329(7).

35 In the very unusual circumstances of this case, I was satisfied that a non-custodial sentence should have been imposed. However, as the appellant had spent more than 11 months in custody for the offences, no additional penalty should be imposed. There is authority for the proposition that this court cannot impose no sentence: Narkle v Hamilton [2008] WASCA 31 [48]. That being so, I would have imposed an 11-month community based order backdated to 27 September 2011.

36 BUSS & MAZZA JJA: The appellant appealed to this court against sentence.

37 On 11 August 2011, he was convicted, on his pleas of guilty in the District Court, on six counts of sexually penetrating the female complainant, a person of or over the age of 18 years, who he knew was his lineal relative, contrary to s 329(7) of the Criminal Code (WA) (the Code).

38 The offences occurred between 1 August 2009 and 31 December 2009. They comprised four counts of penile penetration of the complainant's vagina and two counts of fellatio.

39 The appellant is the complainant's biological father. At the time of the offending, the appellant was aged 39 or 40 and the complainant was 19. Prior to July 2009, the appellant had not met or had any contact with the complainant. The sexual penetration, the subject of the six counts, was consensual.

40 On 27 September 2011, Eaton DCJ sentenced the appellant to a term of 12 months' immediate imprisonment on each count of vaginal penetration and 8 months' immediate imprisonment on each count of fellatio. His Honour ordered that two of the individual terms of 12 months be served cumulatively, and that the other terms be served concurrently with each other and with the accumulated terms. The total effective sentence was therefore 2 years' immediate imprisonment. A parole eligibility order was made.

41 On 31 August 2012, this court allowed the appellant's appeal against sentence. The primary judge's sentencing decision was set aside. The court resentenced the appellant to 12 months' imprisonment on each count of vaginal penetration and 8 months' imprisonment on each count of fellatio. All of the sentences were ordered to be served concurrently. The terms of imprisonment were suspended for a period of 11 months and the suspended terms were backdated to commence on 27 September 2011.

42 When the appeal was allowed and the appellant resentenced, the court said that reasons for decision would be published later. These are our reasons.

43 The detailed facts and circumstances of the offending, the grounds of appeal, the statutory history and the appellant's personal circumstances are recounted by McLure P. It is unnecessary for us to repeat them, except to the extent necessary to explain our reasons.

44 We agree with McLure P, for the reasons she gives, that the primary judge made the material errors identified at [30] - [33] above.

45 In 1992, the Parliament, by enacting the Acts Amendment (Sexual Offences) Act 1992 (WA), comprehensively amended the law relating to sexual offences against children and others, and sexual offences as between lineal relatives. The Parliament retained in essence the crime which had previously been called 'incest', but in the form of provisions then enacted as s 329(7) and s 329(8) of the Code.

46 Section 329(7) provides:

A person who sexually penetrates a person of or over the age of 18 years who the offender knows is his or her lineal relative is guilty of a crime and is liable to imprisonment for 3 years.

47 By s 329(8):

A person of or over the age of 18 years who consents to being sexually penetrated by a person who he or she knows is his or her lineal relative is guilty of a crime and is liable to imprisonment for 3 years.

48 Thus, consensual acts of sexual penetration between known lineal relatives of or over the age of 18 years are crimes. The maximum penalty is 3 years' imprisonment. Although that maximum penalty is significantly less than the maximum penalty applicable to their statutory predecessors (see s 197 and s 198, repealed, of the Code), the current offences are not minor or of doubtful importance.

49 There have been subsequent amendments to the chapter of the Code which contains s 329(7) and s 329(8), but no amendment has been made to either of those subsections since they were inserted in 1992.

50 As we have mentioned, at the material time the complainant was aged 19. The appellant had no role in her upbringing, and she had not known the appellant's identity until she was contacted, via Facebook, by one of his sons.

51 By the time the first offence occurred, about two months after they met, the complainant had left her partner and moved into the home the appellant shared with his then partner and some of his ten children. Part of the complainant's purpose in moving into the appellant's home was to connect, in an emotional sense, with the man she had recently discovered was her biological father.

52 After the first incident of sexual intercourse between the complainant and the appellant at a motel, the appellant, according to what he told the author of the pre-sentence report, realised that his behaviour was 'inexcusable' and that he had made a 'big mistake'. He obviously appreciated that what had occurred was wrong, and should not be repeated. Nevertheless, the conduct continued. In total, there were four separate occasions when the appellant engaged in penetrative sexual behaviour with the complainant at various locations. The offending was not isolated or impulsive and occurred over a period of some months. Despite his appreciation that it was wrong for him to behave as he did, he showed no restraint.

53 In the appellant's favour were his pleas of guilty, which were made after negotiations, his favourable antecedents and his ultimate acceptance of responsibility for his actions. Personal deterrence was not a relevant factor in the present case, but general deterrence was a significant sentencing consideration. Although an uncommon offence, those tempted to engage in it should be deterred from doing so.

54 The Parliament saw fit to enact, as recently as 1992, provisions which make it a criminal offence for known lineal relatives of or over the age of 18 years to engage in a consensual act of sexual penetration and which make an offender liable to imprisonment for 3 years. The Parliament's view of the gravity of the offence, as reflected in the maximum penalty, must be taken into account in deciding upon a sentencing outcome. The sentence must be commensurate with the seriousness of the offence.

55 In the present case, the seriousness of the appellant's offending was such that only imprisonment could be justified. The appropriate term for each count of vaginal penetration was 12 months and for each count of fellatio was 8 months. After taking into account the totality principle, we decided that the sentences should be served concurrently. It was appropriate to suspend the terms of imprisonment after having regard to the seriousness and intrinsic character of the offences, the importance of general deterrence, the absence of personal deterrence as a relevant factor, the appellant's personal circumstances including his favourable antecedents, and the appellant's pleas of guilty and his ultimate acceptance of responsibility for his actions.

Authorities Cited2

Referred to (2)