Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA

Criminal law - Sentence - Three counts of aggravated sexual penetration without consent - Totality principle - Manifest excess - Turns on own facts

Butler v The State of Western Australia [2010] WASCA 104

R v Engert (1995) 84 A Crim R 67

The State of Western Australia v Akizuki [2008] WASCA 267

Wheeler v The Queen [No 2] [2010] WASCA 105

1 McLURE P: The appellant applies for an extension of time, leave to appeal and if leave is granted, to appeal against sentence.

2 The appellant was convicted on 2 June 2009 on his own plea of guilty of three counts of aggravated sexual penetration contrary to s 326 of the Criminal Code (WA). He was sentenced to individual terms of imprisonment of 6 years (count 6), 7 years (count 7) and 8 years (count 8). The sentences were ordered to be served concurrently, resulting in a total effective sentence of 8 years' imprisonment.

3 At the hearing of the appeal, the appellant abandoned grounds 1 and 2 because of their obvious lack of merit. The appellant pressed ground 3 which is, in terms, a claim that the total sentence of 8 years infringes the totality principle. At the hearing, counsel for the appellant applied to add a further ground of appeal to the effect that each of the individual sentences are manifestly excessive.

4 In April 2008, the appellant was charged in the Albany Magistrates Court with six charges, two of assault occasioning bodily harm and four of sexual penetration without consent. The complainant on each charge was the appellant's partner (the complainant). A condition of the appellant's bail for these charges (to which he pleaded not guilty in May 2008) was to undertake the 'Supervised Treatment Intervention Regime' (STIR).

5 On 29 July 2008, the appellant was committed to the District Court for trial on these charges. As a result of failing to appear at a District Court hearing, the appellant was arrested and remanded in custody from 18 November 2008.

6 On 16 March 2009, the State presented an indictment containing eight counts. Counts 1 to 5 alleged one count of assault occasioning bodily harm and four counts of aggravated sexual penetration, all occurring in February 2008, the victim on all counts being the complainant. Counts 6, 7 and 8 in the indictment are the offences to which the appellant eventually pleaded guilty. The appellant committed the offences in count 6, 7 and 8 whilst on bail.

7 In September 2008, and before the commission of the offences in counts 6, 7 and 8, the complainant in a written statement withdrew the allegations relating to the events which became counts 1 to 5.

8 On 19 March 2009, the trial of the eight counts was listed to commence in the week commencing 25 May 2009. During that week the trial judge heard a number of pre-trial applications relating to the evidence to be adduced at the trial then scheduled to commence on 2 June 2009. In the days immediately prior to trial, the appellant approached the DPP and offered to plead guilty to counts 6, 7 and 8 if counts 1 to 5 were withdrawn or not pursued. The State accepted the appellant's offer. The appellant pleaded guilty to counts 6, 7 and 8 on 2 June 2009.

9 The appellant and the complainant had been in a volatile relationship for around six years. At the time of committing counts 6, 7 and 8, the appellant was subject to a violence restraining order prohibiting him from making contact with the complainant. On 27 September 2008, in breach of that order, the appellant went to where the complainant was staying. The contact was initiated by the complainant who was affected by the inhalation of solvents. According to the appellant's counsel, he was significantly intoxicated, having been on one of his alcohol binges.

10 The appellant and the complainant began arguing in the course of which he became violent, roughly and forcibly penetrating her vagina with his finger causing her considerable pain. She complained that he was hurting her and asked him to stop and the appellant angrily refused to do so (count 6).

11 Following that act and in continuation of what the sentencing judge describes as the appellant's unbridled violent behaviour, he pushed his penis into the complainant's mouth. She tried to push the appellant away and wrestled with him in an attempt to make him stop. The appellant became even more angry and urinated in her face, yelling at her at the same time. The appellant then punched the complainant in the nose with a clenched fist (count 7).

12 The violence continued. The appellant again placed his penis into the complainant's mouth. When she attempted to push him away with her hands the appellant grabbed her hands and bit them, breaking the skin. The appellant then hit the complainant on the side of her head with a glass bottle. The complainant put her hands up to her head to protect herself, but the appellant again hit her over the head with the bottle, which smashed, causing a deep cut to the complainant's head. The appellant continued to push his penis into the complainant's mouth and continued to hit her around the head, telling her to suck it properly. The appellant again bit the complainant on the hands, arm and back of her legs as she tried to fight him off. At one stage the complainant lost consciousness. When she came to, she ran from the house to obtain assistance (count 8).

13 The appellant was arrested in November 2008 and declined to take part in an interview with police. Photographs graphically illustrate the effect of the violence perpetrated on the complainant.

14 The sentencing judge had before him a pre-sentence report, a psychologist report dated 21 July 2009, a report detailing the appellant's involvement in STIR from 14 March 2008 to 5 September 2008 and a psychiatric report dated 16 October 2000 from Dr Z Srna.

15 The appellant was aged 32 at the time of sentencing. He had a long standing substance abuse problem. The appellant first commenced using cannabis when he was around 15. At around 17 or 18 years, he experimented with LSD and soon progressed to amphetamine, ecstasy and heroin use. His illicit substance use eventually impacted on his ability to maintain employment. The appellant also abused alcohol, with regular occurrences of binge drinking.

16 The appellant has a relatively extensive record of prior offending. Between August 2000 and January 2001 the appellant was convicted of five counts of breaching a violence restraining order and two counts of threatening behaviour. The violence restraining order related to a former partner. He also had convictions for assault occasioning bodily harm and aggravated common assault.

17 The appellant was referred to Dr Srna after pleading guilty in September 2000 to the charges of breaching a violence restraining order. Dr Srna identified evidence of social phobia and panic disorder and recommended the appellant receive appropriate psychiatric treatment. That did not occur. However, in December 2008, prison authorities referred the appellant to Graylands Hospital where, according to the pre-sentence report, he was diagnosed with paranoid schizophrenia for which he is in receipt of medication.

18 The trial judge concluded that the development of the appellant's mental problems were closely linked with his increasing and persistent substance abuse (ts 24).

19 The sentencing judge expressly took into account the appellant's plea of guilty in the sentencing process (ts 23, 24). He described the plea as being at the last minute as a result of negotiations with the State. The sentencing judge also took into account the appellant's mental health problems.

20 The sentencing judge emphasised the unbridled nature of the violence involved in the sexual offending, aspects of which were calculated to humiliate and degrade. It is also apparent from the sentencing judge's reasons that the length of the terms of imprisonment for the individual offences was linked with his decision that they were all to be served concurrently. That is, the sentencing judge imposed individual sentences that he regarded were at the upper end of the sentencing range because they were to be made concurrent. That approach reflects totality considerations and does not reveal error.

21 A claim of manifest excess and a claim of a breach of the totality principle depends upon error being implied from the nature or length of the sentence itself. The appellant relies essentially on two aspects in support of the implication of error being first, that the appellant pleaded guilty at the earliest reasonable opportunity and secondly that the appellant's substance abuse problems and mental health issues contributed to his offending behaviour.

22 I do not accept the appellant's contention that he pleaded guilty to counts 6, 7 and 8 at the earliest reasonable opportunity. There was no forensic impediment preventing the appellant from making the plea offer he ultimately made, which was accepted by the State, at a much earlier stage in the proceedings. It is reasonably open to infer that the failure to do so was because the complainant had already withdrawn the allegations the subject of counts 1 to 5. However, it would have been apparent from the pre-trial applications argued before the sentencing judge in May 2009 that the State intended to call the complainant and proceed to trial.

23 Moreover, the appellant's long history of substance abuse and his mental health issues are not such as to justify any significant reduction in sentence. That is for two reasons. First, mental illness may weigh in the balance both positively and negatively with the consequence that it has no effect or significant effect on the sentence ultimately imposed: R v Engert (1995) 84 A Crim R 67 [71]; Wheeler v The Queen [No 2] [2010] WASCA 105 [7].

24 Secondly, where a condition is self-induced, whether by reason of long-term substance abuse or otherwise, it is not generally to be regarded as mitigating the offence because the offender may be regarded as morally responsible for his or her condition: Butler v The State of Western Australia [2010] WASCA 104 [8] - [9].

25 At the hearing of the appeal it was contended that the sentences were inconsistent with sentences customarily imposed. Reliance was placed on the observations of Steytler P in The State of Western Australia v Akizuki [2008] WASCA 267. The conclusions he drew at [68] from the review of the authorities were 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).

26 It is important to note that each count in this case was attended by circumstances of aggravation which attracts a statutory maximum penalty

of 20 years' imprisonment. Count 6 had two circumstances of aggravation. First, the appellant was in a family and domestic relationship with the complainant and secondly, the appellant was in breach of a violence restraining order. Those circumstances also apply to counts 7 and 8. In relation to count 7, there were two additional circumstances of aggravation being that the appellant did an act which was likely to seriously and substantially degrade the complainant and did her bodily harm. In count 8, the additional aggravating circumstances were that the appellant was armed with an offensive weapon and did bodily harm to the complainant.

27 The breach of the violence restraining order aggravates the offending in this case notwithstanding the breach may have been consensual. The appellant was aware both of his propensity to violence in domestic relationships and his obligation to comply with the order.

28 The sentencing judge correctly concluded that the level of violence and degradation inflicted by the appellant on the complainant places the circumstances of this offending at a higher than usual level of seriousness for a sexual offence. The claims of manifest excess and breach of the totality principle must fail.

29 The appellant was sentenced on 31 July 2009. The appeal notice was not filed until 17 November 2009, a delay of well in excess of two months. The delay is lengthy and not adequately explained, particularly for the period to 20 October 2009. In those circumstances and having regard to the merits of the appeal, I would refuse an extension of time and dismiss the appeal.