Criminal law - Application for leave to appeal against sentence - Deprivation of liberty - Assault causing bodily harm in circumstances of aggravation and aggravated sexual penetration without consent - Whether first limb of totality principle infringed

Criminal law - Application for leave to appeal against sentence - Whether failure by sentencing judge to order pre-sentence report resulted in miscarriage of justice - Whether sentencing judge relied on matters not supported by the evidence

Criminal Code (WA), s 333, s 317(1), s 326, s 327

Cheung v The Queen [2001] HCA 67; (2001) 209 CLR 1

Eriha v The State of Western Australia [2011] WASCA 167

Fowler v The Queen [2002] WASCA 296

Gavin v The Queen (1992) 6 WAR 195

SDS v The State of Western Australia [2014] WASCA 109

THG v The State of Western Australia [2012] WASCA 139

Topic v The State of Western Australia [2013] WASCA 157

1 REASONS OF THE COURT: This is an application for leave to appeal against sentence.

2 The appellant was charged on indictment in the District Court with seven offences committed against the same victim with whom he had been in a family and domestic relationship until April or May 2014. We will refer to the victim as A.

3 All of the offences were alleged to have occurred on 9 August 2014. Count 1 alleged that the appellant unlawfully detained A, contrary to s 333 of the Criminal Code (WA) (the Code). Counts 2, 6 and 7 alleged that the appellant unlawfully assaulted A and did her bodily harm in a circumstance of aggravation, namely that he was in a family and domestic relationship with A, contrary to s 317(1) of the Code. Counts 3 and 4 alleged that the appellant sexually penetrated A without her consent in a circumstance of aggravation, namely that the appellant was in a family and domestic relationship with A, contrary to s 326 of the Code. Count 5 alleged that the appellant compelled A to engage in sexual behaviour and that the appellant was in a family and domestic relationship with A, contrary to s 327(1) of the Code.

4 The appellant pleaded guilty in the presence of the jury to count 7 at the commencement of his trial on 11 April 2016. The appellant elected to give evidence in his defence. After a trial spanning six days, on 18 April 2016 the appellant was convicted of counts 1 to 6 (ts 691 - 692). On 20 February 2016, the appellant was sentenced to the following terms of imprisonment:

5 His Honour ordered that the sentences on counts 4 and 5 be served cumulatively, and that the other sentences be served concurrently. Thus, the total effective sentence was 11 years' imprisonment. This sentence was backdated to commence on 17 February 2016. The appellant was made eligible for parole.

6 The appellant seeks leave to appeal on three grounds. With the leave of the court, ground 1 was amended at the hearing of this application. As amended, the grounds read:

(a) he failed to order a pre-sentence report; and

(b) he relied on matters not supported by the evidence given at trial, nor by material provided at sentencing.

1. The learned sentencing judge erred in that he sentenced the appellant to a term which offended the totality principle.
2. The errors complained of in grounds 1 and 2 led to a miscarriage of justice.

7 For the reasons that follow, leave to appeal should be refused in relation to each proposed ground of appeal with the consequence that the appeal should be taken to have been dismissed.

8 None of these facts were in dispute in this appeal.

9 At the time of the offending, the appellant was 31 years of age. He had a minor criminal history. The appellant and A had been in a de facto relationship, but she separated from the appellant due to his violent and abusive behaviour. A obtained, to the appellant's knowledge, a violence restraining order preventing him from having contact with A. However, it had not been served. A continued to have occasional contact with the appellant, mainly out of concern for his welfare.

10 After the appellant and A separated, the appellant spied on A, committed acts of violence upon her and later stalked her (ts 740).

11 The appellant's niece was due to be christened on the weekend of 9 August 2014. The appellant persuaded A to attend the christening. A had intended to go to the christening by herself. However, the appellant drove his car to where A was staying. There, he forced A into his car, against her will, and began driving towards Ravenswood. Thus began count 1. During the journey, the appellant repeatedly struck A in the head. A blow to her right ear caused serious bruising to the inner aspect. This assault, which constituted count 2, was accompanied by 'gross verbal abuse'.

12 During the journey, and while he was driving, the appellant forced A to perform, without her consent, an act of fellatio (count 3).

13 Eventually, the appellant drove to a park on the Murray River near Ravenswood. There, he subjected A to what his Honour described as 'a lengthy ordeal of extreme physical, emotional and sexual abuse' (ts 734). The appellant forced A to get into the backseat of his vehicle and remove her clothing. By this time, A had been beaten into submission. The appellant remained fully clothed. He armed himself with a rusty work tool of some description, and threatened to insert it into A's anus. He used the tool to strike A on the legs (count 6). While she was naked, the appellant forced A to get on all fours and then he inserted a ring spanner into her anus, using the round rather than the open end of the tool (count 4).

14 The appellant then compelled A to insert an empty 600 ml soft drink bottle into her vagina. The appellant told her to push the bottle all the way in, or he would kick it in (count 5) (ts 735). His Honour described the extent of penetration of the vagina as 'significant' (count 5).

15 At one point while A was captive in the appellant's vehicle at the park, the appellant burnt her in at least three places on her body with a lit cigarette or the hot metal component of a cigarette lighter. He also placed the cigarette lighter flame close to her naked genitals. These acts were not the subject of separate charges.

16 Eventually, the appellant told A to get dressed; which she did. The appellant then drove her to an isolated place in the Pinjarra/Ravenswood area. Once there, and while seated in the car, the appellant made A lift her arms up to expose her ribs. The appellant then kicked her in that area of her body (count 6). He told her that he would take her to a place where her screams would not be heard, and he threatened to harm members of A's family. The appellant opened the passenger door of his vehicle, and A fell out onto the ground. The appellant then got on top of A and repeatedly 'bashed' her to the head and ribs (count 7).

17 In the course of the day, the appellant forced A to telephone her employer and quit her job. He read her emails (something he had done for some weeks prior) and was enraged by contact she had with another man (ts 735). Eventually, the appellant drove A to his mother's house and took her inside, where she laid down and went to sleep. The police attended the house looking for A. The appellant woke her and told her that the police were there and that she had to get over the fence. Despite being badly injured, A complied with this demand. Although count 1 was completed at this point, the appellant continued to detain A.

18 The appellant then took A to a serviced apartment where they stayed for several days. A was in no condition to escape because of her injuries and the threats that had been made by the appellant. She had no means of communication because the appellant had taken her mobile telephone. At various points in time, the appellant forced A to make telephone calls and send messages to ensure that the police were not looking for her. Eventually, the appellant and A went to the home of a friend of the appellant. The friend noted A's physical condition. The appellant admitted that he had caused the injuries. Some days later, the appellant's friend and A attended a police station and reported the offences. The period between the initial offending and the report to police was approximately 10 days.

19 A suffered significant bodily harm, including a swollen ear and a severely bruised eyeball and eye socket. She also suffered bruising to many parts of her body, and at least three burns. A suffered no fractures, although her rib cage and left leg were badly injured to the extent that four or five days after being assaulted she was still unable to walk without assistance.

20 In broad terms, the appellant testified to this effect with respect to the alleged offences. He denied unlawfully detaining A. The only sexual act which occurred was a single act of consensual sexual intercourse. After that, they argued about A seeing another man, during which the appellant assaulted A, thus the plea of guilty to count 7. Until then, he had not assaulted her.

21 The jury delivered its verdicts on the evening of 18 April 2016. While the jury deliberated, there was discussion between the learned trial judge and senior counsel for the appellant about the need for any pre-sentence or expert report in the event the appellant was convicted of any of counts 1 to 6. His Honour expressed the view that he did not think that he would be assisted by any specialist reports, but left the matter open (ts 688 - 689). When the verdicts of guilty were delivered, he told counsel that, after giving the matter some thought, he did not think that he would be assisted by the preparation of any expert report (ts 693). Neither the prosecutor nor defence counsel took issue with this approach. His Honour remanded the appellant for sentencing to 20 April 2016.

22 On 20 April 2016, senior counsel for the defence addressed the court in mitigation at some length. He did not dispute that, having regard to the level of intimidation, violence and degradation committed by the appellant, the offending was 'to the high end of the scale' (ts 714).

23 Senior counsel explained how the appellant had become emotionally unstable as a result of the deaths in a number of car crashes of his grandfather, his best friend, his brother-in-law and his sister. Those deaths resulted in the appellant becoming a heroin user, although it was said that, at the time of the offences, he was abstinent from the drug (ts 719 - 720). Senior counsel outlined the appellant's antecedents, emphasising that, when he was 15 or 16 years old, his mother was involved in a physically abusive relationship which he witnessed (ts 721 - 722).

24 Senior counsel accepted that the appellant's offending was triggered by his unreasonable belief that A was seeing other males (ts 722). Senior counsel accepted that 'the sexual acts were offences of violence' and he agreed with earlier observations made by his Honour that what happened could be viewed as a series of violent offences (ts 730).

25 His Honour found that the offending was premeditated. He said that all seven counts were very serious examples of their kind and were aggravated 'by his callous, selfish and, quite frankly, cruel and evil behaviours after the event ...' (ts 740).

26 His Honour accepted that the appellant became emotionally unstable due to 'a succession of terrible family tragedies' and the breakdown of his relationship with A (ts 739). He observed that there was no evidence before him of any psychological or psychiatric pathology which in any way mitigated his behaviours (ts 740). His Honour observed that there was 'virtually no mitigation', although he recognised that the appellant did not have a record for previous relevant offending and that he had pleaded guilty to count 7 (ts 741). With respect to this offence, his Honour took into account the plea and gave a discount of 10% pursuant to s 9AA of the Sentencing Act 1995 (WA). His Honour noted that the appellant did not have youth, remorse or victim empathy in his favour (ts 741).

27 His Honour found that the appellant's offending behaviour was 'entirely motivated by his anger that she had left him and his jealousy that she was pursuing another relationship'. He elaborated, 'I am satisfied that at all material times his intention, in other words from before the deprivation of liberty began, was to degrade and defile her and punish her physically and emotionally' (ts 738).

28 The findings his Honour made which are impugned by ground of appeal 1(b) are as follows:

1. 'Counts 3, 4 and 5 were not sexually motivated in the sense they were committed in order to satisfy some kind of misconceived lust, sexual desire or selfish passion. They can't even be explained on the grounds of intoxication and reduced inhibitions. At all material times [the appellant] set out to make his statement about what he thought of the victim and what he thought of her having a relationship with someone else and ignoring him. All of the sex offending was therefore of a more deviant and therefore serious kind that [sic] would commonly apply to a sexual penetration without consent and all of the offending occurred whilst the parties were in a family and domestic relationship' (ts 738 - 739).
2. [As to count 5]: 'This again was highly deviant and humiliating behaviour. The sole purpose of this was to abuse the victim, to denigrate her sexuality, to him-her what he thought of her having sex, as far as if it wasn't going to be with him it may as well be with a bottle. That's the clear implication of all this. In other words, as with count 4, the overall objective was to defile, humiliate and punish her, to crudely objectify her' (ts 743).
3. [As to count 3]: 'But again this 'was not about sexual gratification. It was about sexual dominance, embarrassment and humiliation' (ts 743).

29 The general principles applicable to this appeal are uncontroversial. An appellate court may not substitute its own opinion for that of the sentencing judge merely because it would have exercised the discretion differently. The two proposed grounds of appeal allege express error (ground 1) and implied error (ground 2). With respect to an allegation of express error, if error is established it must be material; that is, it must be one that affects or is capable of affecting the sentence that was actually imposed. With respect to implied error, it must be established that the sentence is unreasonable or plainly unjust.

30 Counsel for the appellant submitted that his Honour's failure to order a pre-sentence report and other expert reports amounted to a miscarriage of justice. Further, she submitted that while the sexual offending was, as a matter of fact, abusive, highly deviant, humiliating and had the effect of denigrating the victim, his Honour's finding to the effect that the sole purpose of the sexual offending was to denigrate her sexually was not a conclusion his Honour could have made without expert psychological or psychiatric evidence. It was also suggested on behalf of the appellant that his Honour's comments breached the requirement for procedural fairness or, alternatively, his Honour impermissibly took judicial notice of matters which were not so generally known that every person may be reasonably presumed to be aware of them.

32 Section 20(1) of the Sentencing Act provides that a court may order a pre-sentence report if the court considers it will assist in the sentencing of an offender. It is a rare case in which a miscarriage of justice could be demonstrated by the failure of a judge to obtain a pre-sentence report on an offender who is represented by counsel and the failure by itself could never constitute a ground of appeal: Topic v The State of Western Australia [2013] WASCA 157 [29]. See also Gavin v The Queen (1992) 6 WAR 195, 211 (Seaman J; Malcolm CJ agreeing) and Fowler v The Queen [2002] WASCA 296 [9] (Steytler J; Templeman J & Sheppard AUJ agreeing).

33 Senior counsel for the appellant did not seek an order for a pre-sentence report, nor did he seek an adjournment to put before his Honour any expert psychological or psychiatric opinion. Senior counsel's decision not to ask for a pre-sentence report or adduce expert evidence or seek an adjournment to produce such evidence may be reasonably and rationally explained by counsel forming the view that a pre-sentence report and expert opinion evidence would not have assisted the appellant. An apparently rational forensic decision of this kind will not ordinarily result in a miscarriage of justice.

34 Moreover, for the appellant to have any hope of making out this allegation of miscarriage of justice it would be necessary for the appellant to show that had a pre-sentence report been ordered or other expert evidence been obtained, a different sentence would have been imposed. Nothing to this effect was put before this court.

35 Where an offender has been found guilty following a trial, the judge who presided at the trial must determine the facts relevant to the sentencing process: Cheung v The Queen [2001] HCA 67; (2001) 209 CLR 1 [5], [36]. It was conceded at the sentencing hearing that the appellant's offending was triggered, in effect, by jealousy and, as a result, the appellant committed a series of violent acts upon A. It was expressly conceded that the sexual offences were acts of violence. As we have already mentioned, it was accepted by the appellant's counsel in this court that the sexual offending was, as a matter of fact, abusive, highly deviant, humiliating and had the effect of denigrating the victim. In these circumstances, it was well open to his Honour to conclude, first, that the sexual offending was not motivated, as he put it, by 'misconceived lust, sexual desire or selfish passion'; second, that the offending was motivated by, in effect, the appellant's jealousy and possessiveness and was committed to abuse and denigrate her.

36 The passages the appellant seeks to impugn by ground of appeal 1(b) are findings of a type commonly made by sentencing judges without expert assistance. Contrary to the submissions of the appellant, they were not findings which required expert psychological or psychiatric opinion.

37 The submission that his Honour denied the appellant procedural fairness is really no more than an assertion and is not borne out by a proper reading of the sentencing proceedings. In the course of sentencing submissions, his Honour made clear to counsel his tentative thinking and senior counsel was given every opportunity to make whatever submissions he thought appropriate. Senior counsel did not shy away from doing so.

38 Similarly, there is nothing in the submission that his Honour took judicial notice of matters that he was not entitled to. Again, that submission is no more than an assertion and is unsustainable.

39 Proposed ground 1, as amended, has no reasonable prospect of succeeding. Leave to appeal should be refused.

40 The appellant submits that the total effective sentence of 11 years' imprisonment offended the first limb of the totality principle. The first limb of the totality principle provides that the total effective sentence must bear a proper relationship to the overall criminality involved in all the offences viewed in their entirety and having regard to the circumstances of the case, including those referable to the offender personally.

41 The appellant principally relied upon his favourable antecedents and pointed to the outcomes in three cases - Eriha v The State of Western Australia [2011] WASCA 167, THG v The State of Western Australia [2012] WASCA 139 and SDS v The State of Western Australia [2014] WASCA 109 - to support the proposition that the first limb of the totality principle had been infringed.

42 There is no doubt that the appellant's overall offending was extremely serious. While it was not in the worst category of offending of its kind, it approached that level. The offending was premeditated, sustained, cruel and humiliating. The sexual offences in particular were very bad. Counts 4 and 5 exhibited a high degree of sexual deviancy. There was, in truth, very little mitigation. He could not rely upon mitigating factors such as remorse, youth or (save for count 7) pleas of guilty. Any mitigation was well and truly outweighed by the serious nature of the offending. The appellant's post-offence conduct cannot be ignored and underscores the appellant's criminality. Deterrence, both specific and general, was an important sentencing factor.

43 We have considered the cases cited on behalf of the appellant. They are of little assistance. The circumstances of the offending in those cases and of the offenders vary. None of them is truly comparable to the present case. It is unnecessary to set out the facts and circumstances of each of the cases. It is sufficient to say that none of them support the proposition that the total effective sentence imposed in this case infringed the first limb of the totality principle.

44 The circumstances of the offending overall was very serious and required a long custodial sentence. In our opinion, having regard to all of the relevant sentencing considerations, the total effective sentence of 11 years' imprisonment did not infringe the first limb of the totality principle. Leave to appeal on ground 2 should be refused.

46 None of the proposed grounds of appeal has a reasonable prospect of succeeding. Leave to appeal on each ground should be refused. As a consequence the appeal is taken to be dismissed. The orders we would make are:

1. Leave to appeal is refused on all proposed grounds.
2. The appeal is dismissed.