Criminal law and sentencing - Appellant convicted of five counts of aggravated sexual penetration without consent, one count of attempted aggravated sexual penetration without consent and one count of threat to harm - Whether total effective sentence of 12 years 6 months' imprisonment infringed the first limb of the totality principle

The Director of Public Prosecutions for the State of Western Australia

Alvarez-Pizalla v The State of Western Australia [No 2] [2008] WASCA 105

AMH v The State of Western Australia [2016] WASCA 180

Rigby v The State of Western Australia [2005] WASCA 134

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

The State of Western Australia v Richards [2008] WASCA 134; (2008) 37 WAR 229

The State of Western Australia v Turaga [2006] WASCA 199

Warburton v The State of Western Australia [2009] WASCA 113

Williams v The State of Western Australia [2015] WASCA 110

1. The appellant was convicted after trial of five counts of aggravated sexual penetration without consent, one count of attempted aggravated sexual penetration without consent, and one count of threatening to unlawfully harm the complainant. He was sentenced to a total effective sentence of 12 years 6 months' imprisonment.
2. The appellant appeals against his sentence on the ground that the total effective sentence infringes the first limb of the totality principle.
3. For the reasons that follow, there is no merit in the appeal. Leave to appeal must be refused, and the appeal dismissed.

1. The appellant was charged with multiple counts of sexual offending against two adult women and one count of making a threat to harm one of the women. All of the convictions related to the same woman, to whom we will refer in these reasons as the complainant. Counts 4 to 11 related to this complainant. The appellant was convicted of counts 4, 5 and 7 to 11 and acquitted of count 6. The appellant was acquitted of counts 1 to 3, which related to the other woman.
2. The offences for which the appellant was convicted, and the individual sentences imposed, are as follows:

On 19 April 2014 at Merriwa the appellant sexually penetrated the complainant without her consent, by penetrating her vagina with his penis

And that the appellant was in a family and domestic relationship with the complainant

7.5 years reduced to 6 years' imprisonment for totality reasons

On 8 June 2014 at Merriwa the appellant sexually penetrated the complainant without her consent, by penetrating her vagina with his penis

And that the appellant was in a family and domestic relationship with the complainant

7.5 years reduced to 6 years' imprisonment for totality reasons

On the same date and at the same place as in count (5) 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 in a family and domestic relationship with the complainant

On the same date and at the same place as in count (5) the appellant sexually penetrated the complainant without her consent, by penetrating her vagina with his penis

And that the appellant was in a family and domestic relationship with the complainant

7.5 years reduced to 6 years' imprisonment for totality reasons

On the same date and at the same place as in count (5) the appellant sexually penetrated the complainant without her consent, by penetrating her vagina with his finger

And that the appellant was in a family and domestic relationship with the complainant

5 years reduced to 4 years' imprisonment for totality reasons

On the same date and at the same place as in count (5) the appellant sexually penetrated the complainant without her consent, by penetrating her vagina with his penis

And that the appellant was in a family and domestic relationship with the complainant

7.5 years reduced to 6 years' imprisonment for totality reasons

On 4 February 2015 at Lower Chittering the appellant made a threat to unlawfully harm the complainant

1 year reduced to 6 months' imprisonment for totality reasons

Total effective sentence: 12 years and 6 months' imprisonment

1. The judge made detailed findings as to the facts and circumstances of the offending.[1] In our view, it is necessary, in order properly to evaluate the appellant's criminality, to set out in some detail the facts of the offending, as the judge found them to be.
2. The appellant and the complainant met on an internet dating site. From the very beginning, they commenced a family and domestic relationship.[2] The appellant was controlling, manipulative and frequently made accusations of infidelity against the complainant. She was not permitted to meet his family or go to his home 'due to gang stuff'.[3] On at least four occasions the appellant required that the complainant change her mobile phone number so that family and friends could not contact her.
3. The judge described the relationship between the appellant and the complainant as 'on again and off again'.[4] His Honour found that the offending in April and June 2014 'occurred at a time when the relationship had broken down and was non-existent'.[5]
4. On 19 April 2014 - a time at which the appellant and complainant were separated - the appellant's grandmother died. The appellant sought sympathy from the complainant. The judge noted that the passing of his grandmother was not 'sufficiently dramatic' for the appellant to tell the complainant the truth, such that he falsely told her that his brother had been killed and that, in accordance with Muslim tradition, he said, buried that day.[6]
5. The appellant arranged to be dropped near the complainant's house and for her to pick him up. The complainant took the appellant to her home. She gave him a coffee, smoked a cigarette with him and hugged him. After about half an hour she told him that she had things to do and it was time for him to go and spend time with his family.
6. The complainant told the appellant to leave, but he said 'you know what I'm here for and I'm not leaving without it'.[7] The complainant told him that the relationship was finished and that sex was not an option. The appellant again said that he was not leaving without it. The appellant grabbed the complainant and pushed her onto the couch and removed her jeans, breaking the zip in the process. The complainant told the appellant to 'get the fuck off me'.[8] The appellant called the complainant a 'fucking slut'.[9] Despite the complainant screaming at the appellant to get off her, he put one arm across her neck and chest, removed her underwear with his other hand, penetrated her vagina with his penis and ejaculated. He then went outside to make a phone call.[10]
7. The complainant tried to escape in her car, but the appellant got into the front seat and had her drive him to McDonald's in Kingsway. The complainant was crying and shaking.[11] On the way the appellant apologised to the complainant, who said to him 'you fucking raped me'.[12] When they arrived, the complainant told the appellant to get out or that she would scream until somebody came or called the police. The appellant got out and the complainant went to her sister's home for refuge.[13]
8. Notwithstanding that the complainant considered the relationship to be well and truly over following this incident, she met the appellant at Mindarie Keys.[14] The appellant apologised for his behaviour. He said that he had lost his brother and lost the plot. The complainant returned to the relationship.[15]
9. In May 2014, the complainant's children determined that they did not want to live with her while she was in a relationship with the appellant and so went to live with their fathers. The complainant made a choice that she would rather live with her children than be with the appellant, so she ended the relationship.[16]
10. On 8 June 2014 - at a stage when the relationship was over and the children were not living with the complainant - the appellant sent her a text message asking her if she was okay. While she was sitting in the backyard smoking a cigarette, she noticed that her dog and cat had turned their attention to the side gate, which the appellant was climbing over. She ran inside and locked the doors.[17] The appellant knocked on the doors and tried to force entry through the laundry door. The complainant had retreated to her bedroom where she could watch the appellant on security cameras. The appellant repeatedly tried to call the complainant. When he had left she dressed and left the house on foot.
11. Eventually the appellant spoke to the complainant on the phone. She told him that she was not returning home and that he was not to enter the home.[18]
12. The complainant returned home. She believed that the front door would lock behind her and she left her handbag on the kitchen bench, as she normally did. She returned to the bedroom to watch the security cameras to make sure the appellant did not return, but he did. He was able to enter through the unlocked front door. [19]
13. When he entered the home, the appellant called out the complainant's name and said 'you should know not to fuck with Arabs'.[20] The appellant went to the kitchen and the complainant asked him what he wanted. He said that he wanted to talk and they went outside for a cigarette.[21]
14. The appellant told the complainant that there was no reason for them not to be together, the children had gone and nobody loved her.[22] They argued about the children and the complainant confirmed that the relationship was over. The appellant called her a 'fucking stupid whore' and a 'slut'.[23]
15. The appellant then aggressively pushed the complainant onto a couch in the sunken family room. He called her 'a slut, a whore and an idiot'.[24] The complainant said 'get the fuck off me. Leave. I don't want you here' and struggled.[25] The appellant held one arm across the complainant's throat and partially removed her lower clothing with his other hand. He penetrated her vagina and ejaculated. He then sat on the couch (count 5).[26]
16. The complainant tried to find her keys and phone where she had left them on the kitchen bench. The appellant taunted the complainant by saying 'so you going to call the cops, are you'?[27] The complainant felt intimidated and returned to the lounge.[28]
17. Count 7, of which the appellant was convicted, alleged attempted aggravated sexual penetration without consent.[29] The complainant attempted to stop the appellant by gouging him in the eye. The appellant retaliated by punching the complainant in the stomach. He grabbed her by the throat and gagged her. She could not breathe properly. The appellant tried to penetrate the complainant again, but was unable to as she gripped him with her thighs. He gave up and just sat there.[30]
18. Later the appellant pulled the complainant's hair in the family room while she tried to avoid him. He hurt her wrists, pulled her down and penetrated her vagina with his penis (this was count 8). The appellant then threatened that members of his gang would go to where the complainant's daughter was living and rape her. The complainant smashed the TV controller over the appellant's head.[31]
19. Later in the day the complainant went to the bathroom while the appellant was in the bedroom. The appellant went to the bathroom, grabbed the complainant by the wrists pulled her onto the bed and inserted his fingers into her vagina (count 9).[32]
20. The complainant attempted to crawl on the bed away from the appellant, but he pulled her back. Eventually she escaped his grasp, but hit her head on the dresser and fell to the floor. The complainant gave up fighting and the appellant penetrated her vagina with his penis. She cannot recall if he ejaculated (count 10).[33] The appellant then pulled out the complainant's car keys, put them on the bedside table and said that he would be back.
21. The judge noted that the incident of 8 June 2014 lasted eight or nine hours and that during the ordeal the complainant was 'too scared to call anyone. She was like a robot on autopilot'.[34]
22. Following the incident, the complainant went to live with her parents.
23. Subsequently, the complainant allowed the relationship with the appellant to resume, and to then continue until February 2015.[35]
24. On 3 February 2015 the complainant met the appellant for a coffee at a park. They argued, as the appellant was angry that the complainant had not told her friends at work that she was seeing him. The appellant accused the complainant of sleeping with other people. The complainant told the appellant that she did not want to talk to him and went home. The appellant went to work in his taxi.[36] The appellant repeatedly called the complainant and threatened to call the landline if she did not speak to him and attempt to fix their relationship problems.[37]
25. The appellant continued to call the complainant into the early hours of 4 February 2015. Eventually he said to her 'this is how it's going to be. I'm going to kill you, or you're going to kill me'.[38] He threatened to punch her in the head and told her that he was 'going to fuck her up'.[39] He told her that if she woke her stepfather up he'd fuck him up. He said that he would 'fuck her like the dog she was' and that he would 'fuck her and the admin bitches', referring to her work colleagues.[40]
26. The appellant told the complainant that he was on his way to her parents' address. The complainant woke her mother and wrote her a note to call the police. The complainant's mother woke up the complainant's stepfather who barricaded the house.[41]
27. The complainant went to the lounge with her parents. She put the phone on loudspeaker so her mother heard what the appellant was saying. The appellant repeatedly demanded to see the complainant. He knocked on the window and said he had a rock in his hand. When he saw police lights he left and was arrested at the front of the property.[42]
28. The judge found that the complainant was terrified and firmly believed that she was going to be killed that night. Her mother said that she heard the appellant say that he was going to kill the complainant; that he had lost a night's pay and somebody would pay for that.[43] She heard the appellant say that the complainant was sleeping with her colleagues and that he would go to the complainant's work to sort them out. Because of this, she woke her husband. The complainant's stepfather gave evidence that the complainant was in the foetal position on the lounge floor and that he saw the appellant outside looking through the complainant's window. He heard the appellant say that he had a rock in his hand and that he would smash the window.[44]
29. The appellant was charged with threat to harm and, although the words he used indicated a threat to kill, the judge acknowledged that he would sentence on the basis of a threat to harm.[45] The judge described the threat as the appellant, while having a rock in his hand, saying that he was going to use it to smash the window, that he was going to punch the complainant in the head and that he was going to fuck her up.[46]

1. The appellant was born in 1988 and was aged 29 when he was sentenced.
2. He completed year 12, describing himself to the psychologist who prepared a report as an average school student.
3. He had a strong work history and was employed as a taxi driver while studying accounting fulltime in 2016.
4. The judge noted that he had a minor criminal record which did not really have a role in the sentencing process for offending of this kind.[47] The judge noted that the appellant 'apparently' had a new partner.[48]
5. The judge took into account two reports of a psychologist engaged by the appellant, dated 18 October 2016 and 20 August 2016. The judge noted that the appellant had embarked on therapy which taught him how to respond to certain situations and he responded well to commitment therapy.[49]
6. The judge acknowledged that the appellant had depression and anxiety, which improved with psychological education. He developed emotional regulation skills, vocational skills and had a greater sense of maturity, such that no more treatment was required.[50] The judge noted that the reports only referred to the offending of 3 February 2015, despite counsel for the appellant's submission that the appellant had told his psychologist of the more serious offending of a sexual nature. The judge accepted counsel's submission that the reports demonstrated that the appellant was capable of engaging with a psychologist and counselling.[51]
7. The judge took into account that a court-appointed psychologist's report of 1 October 2017 noted that the appellant denied his sexual offending and that he was shocked by his charges.[52] The report noted that a number of factors may have influenced the appellant's offending, including feelings of inadequacy and worthlessness, and the feeling that there had not been much success in his life, which may have been in part influenced by the success his siblings enjoyed.[53] Nonetheless, the judge acknowledged that the appellant had good family support.[54]
8. The judge accepted the psychologist's conclusion that the appellant had relationship problems, felt rejected and betrayed, and exhibited an inability to accept the conclusion of a relationship, his ego being threatened, anger, wanting to exert power and control over the victim, a desire for sexual gratification, poor impulse control, poor judgment and a lack of consequential thinking.[55] The judge also accepted that the appellant had various treatment needs relating to his sexual offending, feelings of inadequacy, relationship skills, impulse control, decision-making and consequential thinking.[56]
9. The judge noted the psychologist's report found that the appellant was at a moderate to high risk of offending. While his Honour acknowledged counsel's criticism that the report was produced prior to the appellant receiving treatment, the judge held that it was appropriate to sentence the appellant on the basis of his potential for reoffending as it currently stood. It would be for parole authorities to decide how responsive the appellant had been to treatment.[57]

1. The complainant produced two victim impact statements. The first, dated 13 February 2015, stated that the appellant was a compulsive liar who had managed to isolate the complainant from her friends and some members of her family. She noted that during their relationship, the appellant had been verbally and physically aggressive, moody and abusive. The appellant had threatened her and told her that he would find her if she left the relationship.
2. In the second undated statement, prepared for the hearing on 30 October 2017, the complainant describes herself as a shell of the person that she once was, who does not enjoy things she used to and who is medicated for anxiety and depression. The complainant suffered enormous emotional turmoil as a result of the appellant's offending.[58]

1. The appellant appeals on a single ground. The ground is to the effect that the total effective sentence imposed on him infringed the first limb of the totality principle.[59]
2. The appellant's written submissions refer to a number of cases[60] in support of his contention that the total effective sentence imposed upon him is so excessive as to reveal implied error.
3. The question of leave was referred to the hearing of the appeal.[61]

1. The following general principles relevant to an appeal against sentence on totality grounds are well established:

(1) Sentencing is a discretionary exercise. An appellate court can intervene only if the appellant demonstrates either an express or implied material error. Express error involves acting on a wrong principle, for example by mistaking the law or facts or taking into account an irrelevant matter. 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.

(2) 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.

(3) The range of sentences customarily imposed for a crime 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 is the unifying principles which sentences imposed in comparable cases reveal and reflect.

(4) The utility of comparable cases in determining questions of totality may, at times, be limited to providing very broad guidance because there will often be significant differences in the circumstances of the offending and the offenders. Nevertheless, it remains appropriate to consider other comparable cases to ensure broad consistency and to avoid sentencing becoming idiosyncratic and arbitrary.

(5) 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.

(6) Where there is a challenge on totality grounds, the severity of a sentence imposed on an individual count generally falls to be assessed in light of the sentences imposed in respect of the other counts and its contribution to the total effective sentence. A heavy individual sentence may be softened by an order that it be served concurrently with sentences imposed in relation to the other counts. A relatively light sentence may, as a practical matter, have increased severity if it is ordered to be served cumulatively. The critical question is whether the total effective sentence is unreasonable or plainly unjust.

1. After a detailed review of cases of sentencing for sexual offending, Steytler P drew the following conclusions in The State of Western Australia v Akizuki:[62]

As might have been anticipated, this review of the cases reveals that the circumstances of sexual offending, and of sexual offenders, are almost infinitely variable. That, in turn, means that the sentence imposed in one case can provide only very limited guidance in deciding what sentence should be imposed for a similar offence in another case. However, some conclusions can be drawn, as follows:

(1) An average starting point for a case of penile penetration of the vagina without consent, absent circumstances of aggravation, is in the order of 7 years' imprisonment under the former sentencing regime, or around 4 years and 8 months' imprisonment under the transitional regime. That starting point takes no account of any factors in mitigation.

(2) Because the circumstances of sexual offending and sexual offenders are so variable, nothing will be achieved by specifying a range of sentences customarily imposed. The range of potential aggravating features is so huge that features of that kind can either dramatically increase the sentence imposed (bearing in mind that the maximum sentence for an aggravated offence is 20 years' imprisonment: s 326 of the Criminal Code) or have little or no effect on the sentence imposed. The range of potential mitigating factors is at least equally extensive. They might result in a very large reduction in sentence or little or no reduction.

(3) Nor will anything be achieved by specifying a different starting point for each category of sexual penetration without consent. It should not be assumed that one form of sexual penetration is necessarily more, or less, serious than another. As Wheeler JA pointed out in C v The State of Western Australia [2006] WASCA 261 [35], there is no 'hierarchy of sexual penetration'. For example, although digital penetration will ordinarily be less serious than penile penetration, that is not inevitably so. It might, in particular circumstances, be no less serious or even more serious. The seriousness of every offence of unlawful sexual penetration must be determined by its own individual circumstances: C [35] (Wheeler JA); Cavill [266] - [267] (Miller JA).

That seems to me to be about as much guidance as can be obtained from the cases. I appreciate that it is less than sentencing judges might wish. However, that is a necessary consequence of the court's obligation to tailor each sentence to the individual circumstances of the case, having regard for the maximum penalty provided by the legislature and, to the extent that they can be of assistance, sentences customarily imposed in similar circumstances.

1. In a case of a single count of penile penetration of the vagina where there is a plea of not guilty, a term of imprisonment of 5 to 6 years would not be unusual.[63] It is important to emphasise that this does not mean that a sentence outside that range is thereby manifestly excessive (or inadequate). The circumstances of offending vary widely. The available maximum sentence must not be overlooked. Sentences well beyond that range may be justified by the circumstances of the case.[64]
2. The appellant's offending is properly characterised as appalling. It had a number of serious and aggravating features, including the following:

(1) The appellant committed five offences of sexual penetration without consent in circumstances of aggravation. The maximum penalty for such offences is 20 years' imprisonment, reflecting their inherent seriousness.

(2) The appellant's offending occurred on three distinct occasions: in April 2014; on 8 June 2014; and on 4 February 2015.

(3) The appellant's offending on 8 June 2014 went on for a period of eight to nine hours. It involved multiple acts of penetration without consent, and a further offence of attempted sexual penetration without consent.

(4) The appellant used non-sexual violence and physical force to facilitate his offending.[65]

(5) In the course of committing the offences the appellant taunted and threatened the complainant, using insulting and degrading language. This compounded his disregard for her bodily autonomy and dignity.

(6) The appellant refused to accept the complainant's ending of their relationship. He used acts of sexual penetration without consent, in combination with physical violence, taunting of her, insulting and degrading language and threats, to attempt to assert his control over her.

(7) The appellant's offending has had a significant ongoing detrimental psychological effect on the complainant.[66]

1. We respectfully endorse and adopt the following comments of the sentencing judge:[67]

Now, when it comes to sentencing you in a case like this, it's self evident that sexual offending is extremely serious, invading as it does, the victim's personal, sexual rights. Such offending is a gross violation of a person's sexual rights and that's so whether or not you've been in a relationship with the victim.

[The complainant] had been in this relationship with you. She was not your chattel; she was not your thing that you could do with whatever you pleased. She was not available to provide you with sexual favours at your choosing. She has her rights. Those rights include her right to say no.

Now, this is not just a personal right, it's deeper than that, it's her sexual integrity which you violated. She was entitled to refuse you. When she sought to exercise her rights, you overcame her physically in order to penetrate her.

Then, in terms of your offending in February 2015, [the complainant] and her parents were entitled to feel safe in their home. [The complainant] was entitled to feel that she was in her castle and that she would be safe in that castle. She was entitled to remain there without, in any way, being under threat from you to harm her.

Now, there was one offence in April 2014, one offence in February 2015. The offending on 8 June 2014 was persistent and over time. There were a number of offences. So that really was an appalling example of you forcing your will upon her with total and callous disregard for her wellbeing.

1. The appellant had the benefit of a relatively minor criminal record, a strong work history and good family support. Otherwise, he had very little in the way of mitigation. He pleaded not guilty. He continued to deny his offending to the authors of the reports, and thus demonstrated no remorse. He could provide no explanation for his offending. The appellant's written and oral submissions emphasise his demonstrated willingness to engage in psychological counselling.[68] In circumstances where the appellant refuses to admit his sexual offending and to have counselling in that respect, this willingness is of very limited mitigatory value.
2. There was no challenge to any of the individual sentences[69] and nor could there reasonably have been any challenge. It was appropriate that there was some substantial accumulation of the sentences for the offences for each of the three incidents. The sentences for the five offences committed on 8 June 2014 were made concurrent with each other, despite those offences involving sustained violent offending over eight or nine hours on that day. That must be borne in mind in evaluating whether the total effective sentence reveals implied error.
3. The cases relied on by the appellant do not support a conclusion that the total effective sentence of 12 years 6 months' imprisonment imposed on him reveals implied error. Most of the cases involved offending on a single occasion, albeit on some occasions extending over several hours. Most of the cases involved fewer offences of sexual penetration without consent than were committed by the appellant. As senior counsel for the appellant accepted,[70] the differences in the offences, and in the facts and circumstances of the offences, make comparisons to the present case of very limited utility.
4. Taking into account:

(1) the facts and circumstances of the appellant's offences considered as a whole;

(3) the overall criminality involved in all of the appellant's offences;

(6) all other relevant sentencing factors, including mitigating factors; and

(7) the total effective sentences imposed in reasonably comparable cases;

it cannot be said that the total effective sentence imposed on the appellant reveals implied error. The sole ground of appeal has no merit.

1. For these reasons, leave to appeal must be refused, and the appeal dismissed.

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

[29] Note, although the indictment that appears at pages 34 - 35 of the appeal book alleged penile/vaginal penetration on count 7, the charge read to the accused at trial referred to attempted digital/vaginal penetration (ts 50). No complaint is made in this regard and nothing turns on it.

[32] ts 1029. The comments in footnote 29 apply again here.

[60] AMH v The State of Western Australia [2016] WASCA 180; The State of Western Australia v Turaga [2006] WASCA 199; Alvarez-Pizalla v The State of Western Australia [No 2] [2008] WASCA 105; Rigby v The State of Western Australia [2005] WASCA 134; and Williams v The State of Western Australia [2015] WASCA 110.

[62] The State of Western Australia v Akizuki [2008] WASCA 267; (2008) 192 A Crim R 373 [68] - [69].

[63] The State of Western Australia v Richards [2008] WASCA 134; (2008) 37 WAR 229 [49].

[64] See, for example, Warburton v The State of Western Australia [2009] WASCA 113 [21].

[65] See, for example, [11], [20], [22], [23], [24] above.

[68] Appellant's submissions [60]; appeal ts 10, 11.