Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA

Criminal law - Appeal against sentence - Appellant convicted on his pleas of guilty after the commencement of the trial - Two counts of aggravated sexual penetration without consent, one count of attempted aggravated sexual penetration without consent, threat to injure and assault occasioning bodily harm - Total effective sentence of 11 years' imprisonment - Totality principle - Extension of time to appeal refused

Criminal Code (WA), s 301(1), s 326, s 338B, s 552

Application for an extension of time to appeal dismissed

Ackley v The State of Western Australia [2013] WASCA 199

Clarke v The State of Western Australia [2013] WASCA 67

Juma v The State of Western Australia [2011] WASCA 54

The State of Western Australia v Akizuki [2008] WASCA 267; (2008) 192 A Crim R 373

Ugle v The State of Western Australia [2012] WASCA 104; (2012) 223 A Crim R 115

Zimmerman v The State of Western Australia [2009] WASCA 211

1 MARTIN CJ: This application for an extension of time within which to appeal should be dismissed for the reasons given by Buss JA, with which I agree.

2 BUSS JA: The appellant has applied for an extension of time to appeal against sentence.

3 He was charged on indictment with five counts. All of the counts related to offending by the appellant against a 24-year-old woman.

4 Count 1 alleged that, on 11 March 2013, at Perth, the appellant sexually penetrated the complainant without her consent, by penetrating her vagina with his penis, and that the appellant was armed with a dangerous instrument, namely a shard of glass, contrary to s 326 of the Criminal Code (WA) (the Code).

5 Count 2 alleged that, on the same date and at the same place, the appellant sexually penetrated the complainant without her consent, by engaging in cunnilingus, and that the appellant was armed with a dangerous instrument, namely a shard of glass, contrary to s 326 of the Code.

6 Count 3 alleged that, on the same date and at the same place, the appellant attempted to sexually penetrate the complainant without her consent, by attempting to penetrate her vagina with his penis, and that the appellant was armed with a dangerous instrument, namely a shard of glass, contrary to s 326 read with s 552 of the Code.

7 Count 4 alleged that, on the same date and at the same place, the appellant made a threat to unlawfully injure the complainant, contrary to s 338B of the Code.

8 Count 5 alleged that, on the same date and at the same place, the appellant unlawfully wounded the complainant, contrary to s 301(1) of the Code.

9 The appellant was convicted, on his pleas of guilty on the second day of his trial in the District Court before O'Neal DCJ and a jury, of all of the counts.

10 The appellant did not plead guilty until after defence counsel had cross-examined the complainant, her friend Ms K, and the two investigating police officers.

11 On 4 April 2014, the trial judge sentenced the appellant. The sentences imposed were as follows.

Attempted aggravated sexual penetration without consent

13 The total effective sentence was backdated to 11 March 2013, being the date on which the appellant was taken into custody for the offences.

14 The last date for appealing against sentence was 25 April 2014. The appellant did not file his appeal notice until 30 July 2014. He relies on an affidavit he swore on 29 July 2014 in support of his application to extend time.

15 On 19 September 2014, Mazza JA referred the application for an extension of time to the hearing of the appeal.

16 I will consider the merits of the ground of appeal before deciding whether an extension of time should be granted.

17 The sole ground of appeal alleges that the trial judge erred by imposing a total effective sentence which infringed the first limb of the totality principle. On 19 September 2014, Mazza JA granted leave to appeal on this ground.

18 No complaint is made about any of the individual sentences. Indeed, at the hearing of the appeal, counsel for the appellant conceded (properly, in my opinion) that the individual sentences 'were all well within the range' (appeal ts 3).

19 The appellant does not allege that his Honour made any express error; in particular, none of his Honour's findings of fact is challenged.

The facts and circumstances of the offending

20 On 10 March 2013, the complainant, a 24-year-old backpacker who was visiting Australia, went to a hostel in the Perth metropolitan area to meet a friend, Ms K, who was staying at the hostel. The appellant was also staying at the hostel. He had rented a campervan which was parked permanently in an enclosed area at the back of the hostel. He had met the complainant a few days earlier when she had visited Ms K.

21 On 10 March 2013, the complainant went to the hostel with the intention of going out with Ms K. However, Ms K did not want to go out. The appellant suggested to the complainant that they go to a park in the vicinity and drink some wine. The complainant agreed. The complainant arranged with the appellant and Ms K that the complainant would sleep in the appellant's campervan and the appellant would sleep on a couch in the hostel, so the complainant would not have to travel to her accommodation late at night and after she had been drinking.

22 The appellant and the complainant went to the park. They drank a considerable quantity of wine. Eventually they returned to the hostel. The appellant showed the complainant where the campervan was located. She entered the campervan and lay down on a mattress. The back door of the campervan was open. The appellant returned to the hostel. At the hostel he saw Ms K. She asked him where the complainant was. The appellant told her that the complainant was asleep in the campervan.

23 A little later, the appellant went to the campervan. The complainant awoke with the appellant on top of her. Her shorts and underwear had been removed. The appellant was pinning her down, with one of his arms across her throat. He said to her, in an angry voice, 'Don't scream'. The complainant nevertheless attempted to scream, but found it difficult because the appellant's arm was impeding her breathing.

24 The appellant produced what the complainant believed was a knife. He pushed it against her throat. The complainant felt the object cutting her. She was extremely frightened. The appellant endeavoured to force the complainant's legs apart so he could penetrate her vagina with his penis (count 3). He said to her, 'Don't move or I'll cut your throat' (count 4).

25 The complainant was unaware at that time, as a result of her being intoxicated and having been asleep, that the appellant had already sexually penetrated her twice. The first occasion involved penile penetration of the complainant's vagina (count 1) and the second involved the appellant committing cunnilingus upon her (count 2). These counts were laid on the basis of admissions made by the appellant to the police in a video-recorded interview on 11 March 2013 and forensic test results. The appellant claimed in the video-recorded interview that at least some of his sexual activity with the complainant was consensual.

26 The appellant lost his grip on the complainant and she grabbed his left hand. The complainant bit the appellant's hand and, after a struggle, she escaped from the campervan. She ran along the side of the hostel and into the reception area. The complainant was half naked and hysterical. She said, 'He tried to rape me. I thought we were friends'.

27 The complainant suffered cuts to her neck, left arm and leg (count 5). They were caused by the appellant's use of a shard of glass (which the complainant had thought was a knife) during his attack on her.

The appellant's video-recorded interview with police

28 During the video-recorded interview with police the appellant said that before any sexual activity with the complainant commenced he kissed her, she responded, she was awake and she moved her leg 'to help [him] get [her] shorts off' (VROI 25 - 26).

29 The appellant told the police that the initial sexual activity involved him penetrating the complainant's vagina with his penis and he then engaged in cunnilingus (being the offending alleged in counts 1 and 2) (VROI 26 - 27).

30 After the appellant told the police about the penile penetration and the cunnilingus, the following exchange occurred in relation to the appellant's assertion that the complainant was 'responsive':

SCON DALY: Mmhmm. Okay. Was she responsive at any stage during sex?

WILLIAMS: Yeah. She was responsive at, through the whole lot, or I wouldn't have st - - - -

SCON DALY: When you say responsive, what do you, what do you mean by that?

WILLIAMS: Well, she, when I kissed her, she kissed me back.

SCON DALY: Mmhmm.

WILLIAMS: Ah, when I pulled her shorts off, she moved her leg a little bit so, to make it easier for me - - -

SCON DALY: Mmhmm.

WILLIAMS: To get the shorts off.

SCON DALY: Mmhmm.

WILLIAMS: She had her arms around me when I penetrated her.

SCON DALY: Mmhmm.

WILLIAMS: At no stage did she say no, stop, or anything. Well, not at that stage, anyway. Everything was going well.

SCON DALY: Did she say anything at all?

WILLIAMS: No, not a word.

SCON DALY: Any noise?

WILLIAMS: Oh, yeah, well, she moaned a couple of times, but, yeah. But it wasn't 'til about half way through that she, all of sudden, just, went stop.

SCON DALY: Were her eyes open?

WILLIAMS: Yeah.

SCON DALY: Yep.

WILLIAMS: Well, half, not completely open. Like half open, you know? We were both pretty drunk at this stage.

SCON DALY: So all of a sudden, she says stop?

WILLIAMS: Yeah. Just, out of the blue. Just, asked me to stop (VROI 27 - 28).

31 The trial judge recounted, in his sentencing remarks, the facts and circumstances of the appellant's offending.

32 His Honour noted that during the video-recorded interview with police the appellant claimed that the initial acts of sexual penetration were consensual because the complainant 'began to respond', and it was only later that she withdrew her consent during an act of intercourse (ts 158). According to the appellant, he stopped having intercourse with the complainant after she told him, a second time, to stop (VROI 30). The appellant informed Rachele Day, a forensic and clinical psychologist, that:

It started as consensual and turned into something that wasn't. When she said 'No' and to get off ... I got so ... angry. Why lead me on like that? It turned into a rage ... I went insane ... I ... lost it, it was a rage.

33 The trial judge said that although the appellant, by his pleas of guilty, had admitted the offending alleged in counts 1 and 2, his Honour did not, in any event, accept the appellant's claim that he thought the complainant was awake and consciously consenting. His Honour did accept, however, that the complainant was in a rage (ts 158).

34 His Honour was satisfied beyond reasonable doubt that the following aggravating factors were established. First, at the time of the offending, there was a warrant for the appellant's arrest in connection with alleged offences in South Australia. He had been on bail in that State but had fled the jurisdiction. Secondly, the appellant was in possession of the shard of glass when he decided to sexually assault the complainant. He armed himself with the shard of glass in advance for the purpose of overcoming any resistance by the complainant. Thirdly, the complainant was, to the appellant's knowledge, especially vulnerable. She was intoxicated and asleep in a place where she thought she would be safe. Indeed, she was asleep when the appellant began to assault her. The complainant was isolated in the campervan. The appellant was unlikely to be disturbed while he was assaulting her and she was unlikely to be able to obtain any assistance. Fourthly, the act of sexual penetration, the subject of count 1, was unprotected. Fifthly, not only was the appellant armed with a weapon (namely, the shard of glass) but he actually used the weapon while committing some of the offending.

35 The trial judge referred in some detail to the complainant's victim impact statement. The offending has had serious consequences for her. It caused extreme psychological trauma. Her life has been significantly disrupted. She has suffered financial hardship.

36 The information before his Honour included a report dated 26 March 2014 prepared by Ms Day and a pre-sentence report dated 28 March 2014. These reports reveal the following about the appellant's personal circumstances and antecedents.

37 The appellant was born on 13 October 1975. He was aged 37 at the time of the offending and was 38 when sentenced. The appellant had a difficult and traumatic childhood. It was characterised by illicit substance abuse and alcoholism. His father inflicted physical and emotional violence upon the appellant and the appellant's mother. The appellant completed year 10 at school but his schooling was disrupted. His work history has primarily involved short-term, seasonal employment requiring unskilled labour. The appellant has a long history of illicit drug and alcohol abuse. He commenced using cannabis at age 13, alcohol when he was 16 and amphetamines at age 15. The appellant has had one significant personal relationship which lasted about six years. His physical health is good but he has a history of anxiety and depression.

38 The trial judge said the appellant had a 'lengthy court history' in Victoria, New South Wales and South Australia. It commenced in 1990 when he was aged 15. The appellant revealed to Ms Day a criminal record with numerous convictions for violent behaviour, the possession of weapons and drug-related offences. In 2006 he was imprisoned in South Australia for offences involving violence. His Honour observed that it could not be said that 'violent offending is uncharacteristic of [the appellant]' (ts 160, 165).

39 The pre-sentence report indicated that the appellant had expressed some victim empathy and contrition. The report records the appellant as having said, 'I am tired of speaking about this, what I did was reprehensible and I just want to be sentenced'. In the psychological report Ms Day notes that the appellant said, 'If it's absolutely certain and she was asleep ... I fucked up ... I feel deeply sorry ... and hope that one day she can get on with her life'.

The circumstances of this offending are quite disturbing. As the victim said, she had been led to believe that you were a friend up until she awoke with your arm across her throat. This offending comes against a background of violent offending which previous punishment did not deter.

In my view your claim of remorse is very, very difficult to give a great deal of weight to. I'll state my view based on all of the information that I've received and my observations in the course of the trial, that you are at very high risk of re-offending and a considerable danger to the public. Whether that risk can be reduced by treatment remains to be seen (ts 162).

41 The trial judge recognised that, without the appellant's admissions in the video-recorded interview with police, the offence the subject of count 2 would not have been discovered. His Honour then said:

As I say, what is quite unexplained here is how anyone could have rationally thought that the evidence based on what was said before, the questions asked in the course of the cross-examination of the victim would not have led inevitably to a conviction for at least count 1 on the indictment.

I say this because far from seeking to explain or avoid the consequences of what you said to the police, there were facts put to the victim which if true would have proved your guilt, nor can it be said that your plea of guilty in this case implies any remorse or contrition on your part.

The stage at which the plea came, the manner in which the trial was conducted on your behalf, the accusations levelled at the victim preclude any finding that there was any degree of true remorse [or] contrition reflected by the pleas of guilty, despite the claims that you've since made (ts 164).

42 His Honour reduced the individual sentence he would otherwise have imposed for count 2 because that offending 'was revealed by what you admitted to the police' (ts 168).

43 The trial judge allowed a discount of 5%, pursuant to s 9AA of the Sentencing Act 1995 (WA), on the individual sentences he would otherwise have imposed.

44 The total effective sentence of 11 years' imprisonment was achieved by accumulating the individual sentences on count 1 (5 years), count 3 (4 years) and count 4 (2 years).

45 At the hearing of the appeal, counsel for the appellant said that her argument 'in its entirety' was that the total effective sentence of 11 years' imprisonment was 'outside the broad range of total effective sentences that have been imposed in other cases' (appeal ts 4).

(a) each of counts 1 and 2, was 20 years' imprisonment;

47 The first limb of the totality principle requires that the total effective sentence imposed on an offender who has committed multiple offences must bear 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.

48 The guidance afforded by comparable cases is flexible rather than rigid. The mere fact a sentence is within the range of other sentences imposed for similar offending does not necessarily establish that there was an appropriate exercise of the sentencing discretion in the particular case. Similarly, the mere fact a sentence is outside the range does not necessarily establish that the exercise of the sentencing discretion in the particular case miscarried.

49 A sentencing range for comparable offences is merely one of the factors to be taken into account in deciding whether an individual sentence is manifestly excessive or a total effective sentence infringes the first limb of the totality principle. A range of sentences customarily imposed is of significance for the purpose of ensuring broad consistency in the sentencing of offenders in broadly comparable cases. However, a sentencing range for comparable cases does not fix the range of a sound exercise of the sentencing discretion in a particular case.

50 When this court dismisses an appeal against sentence, and when it allows an appeal against sentence and resentences the offender, this court's decision on the sentencing outcome does not, of itself, fix the upper or lower limit of the range.

51 There is no 'tariff' for offences of the kind committed by the appellant (or for sex offences generally) because of the great variation that is possible in the circumstances of the offending and the offenders. The sentence to be imposed in a particular case depends on its individual facts and circumstances, having regard to the maximum penalty and all relevant sentencing factors. See The State of Western Australia v Akizuki [2008] WASCA 267; (2008) 192 A Crim R 373 [3], [67] - [69] (Steytler P); Juma v The State of Western Australia [2011] WASCA 54 [37] - [38] (McLure P, Newnes JA & Mazza J).

52 I have examined a number of cases with at least some features comparable to the appellant's offending. These include the cases cited by counsel for the appellant. I refer, in particular, to Zimmerman v The State of Western Australia [2009] WASCA 211; Juma; Ugle v The State of Western Australia [2012] WASCA 104; (2012) 223 A Crim R 115; Clarke v The State of Western Australia [2013] WASCA 67; Ackley v The State of Western Australia [2013] WASCA 199; and the cases referred to in those decisions.

53 It is unnecessary to reproduce the relevant facts and circumstances or the sentences imposed in the previous cases. There are some comparable features between some of those cases, on the one hand, and the present case, on the other, but there are also distinguishing features.

54 In the present case, the appellant's offending was extremely serious. It is sufficient to note the following:

(a) Each of the aggravating factors referred to by the trial judge in his sentencing remarks. See [34] above.

(b) His Honour's findings in relation to the devastating impact of the offending on the complainant.

(c) His Honour's findings that the appellant was at a very high risk of reoffending and was a considerable danger to the public.

(d) His Honour's finding that it was 'very, very difficult to give a great deal of weight to' the appellant's claim of remorse (ts 162).

56 The appellant was not youthful or inexperienced for sentencing purposes.

57 The appellant did not have the mitigation of being otherwise of good character. He had previous convictions for violent behaviour and other offences. As recently as 2006, he had served a term of immediate imprisonment. The appellant's prior offending and imprisonment did not aggravate the current offending, but it underscored the importance of personal deterrence as a sentencing factor.

58 Although the appellant was, of course, entitled to proceed to trial, he could only claim very limited mitigation for the pleas of guilty he entered on the second day of the trial, after defence counsel had cross-examined the complainant and other State witnesses.

59 It is true that the appellant admitted the sexual activity, the subject of counts 1 and 2, and that, without his admissions, the offence the subject of count 2 would not have been discovered and the offence the subject of count 1 would have been more difficult to prove. However, the appellant's voluntary disclosure in the video-recorded interview with police was not indicative of any remorse or of a desire to purge his guilt. The appellant made the admissions in connection with attempting to exculpate himself by fabricating a version of events to the effect that the complainant had consented to the sexual activity until, for some bizarre and inexplicable reason, she withdrew her consent. Nevertheless, his Honour appropriately reflected the mitigatory value of the appellant's disclosure of the offending, the subject of count 2, by reducing the individual sentence he would otherwise have imposed for that count.

60 In my opinion, the total effective sentence of 11 years' imprisonment, with eligibility for parole, was condign punishment and towards the upper end of the range available to his Honour on a proper exercise of the sentencing discretion. However, I am satisfied that the total effective sentence did not infringe the first limb of the totality principle. The term of 11 years was required to give effect to the primary sentencing factors of appropriate punishment and personal and general deterrence. Some of the individual sentences had to be accumulated in order to mark the seriousness of the appellant's offending and to deter him and others. The total effective sentence bears a proper relationship to the criminality involved in all of the offences against the complainant, viewed together, and after having regard to all relevant facts and circumstances and all relevant sentencing considerations, including the seriousness of the offending, the pattern of sentencing in reasonably comparable cases and the limited mitigation.

62 I would refuse to grant an extension of time to appeal because the ground of appeal is without merit. The application should be dismissed.