Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA

Chivers v The State of Western Australia [2005] WASCA 97

CW [2000] WASCA 81; (2000) 111 A Crim R 287

Fullgrabe v The State of Western Australia [2006] WASCA 138

Magee v The Queen [1980] WAR 117

R v Faithfull [2004] WASCA 39; (2004) 142 A Crim R 554

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

Veen v The Queen (No 2) [1988] HCA 14; (1988) 164 CLR 465

Verschuren v The Queen (1996) 17 WAR 467

Worthington v The State of Western Australia [2005] WASCA 72; (2005) 152 A Crim R 585

Champion (1992) 64 A Crim R 244

Herbert v The Queen [2003] WASCA 61; (2003) 27 WAR 330

Miller v The Queen [1999] WASCA 66

Postiglione v The Queen [1997] HCA 26; (1997) 189 CLR 295

R v Lippiatt, unreported; CCA SCt of WA; Library No 980065; 17 February 1998

R v Tsiaras [1996] VicRp 26; [1996] 1 VR 398

R v White [2002] WASCA 112

Sulejmani v The State of Western Australia [2005] WASCA 95

Thompson v The State of Western Australia [2005] WASCA 223; (2005) 157 A Crim R 385

Thomson v The Queen, unreported; CCA SCt of WA; Library No 1133; 19 March 1973

1 STEYTLER P: I have had the advantage of reading the judgment of Wheeler JA. It sufficiently expresses my own reasons for joining in the dismissal of the appellant's appeal against sentence. I agree also with the additional comments of McLure JA.

2 WHEELER JA: On 13 November 2006 this Court dismissed the appellant's appeal against sentence. These are my reasons for joining in those orders.

3 The appellant was sentenced on 26 August 2005 for a series of offences committed in the early hours of Saturday, 18 June 2005. Those offences were indecent assault in company, unlawful detention and aggravated sexual penetration without consent (the aggravating circumstances being that the appellant was in company and made threats to kill the complainant). The appellant also, by that offending, breached a suspended imprisonment order of 12 months in relation to one charge of assault occasioning bodily harm.

4 The sentences imposed on him were 12 months' imprisonment for the indecent assault, 6 months for the unlawful detention, to be served concurrently, 4 years for the aggravated sexual penetration, to be served cumulatively, and 12 months in respect of the assault occasioning bodily harm, also cumulative. The total effective term was then one of 6 years. The appellant was made eligible for parole and the sentences backdated to the date on which he was taken into custody.

5 The circumstances of the sexual offences were that, at about 2.30 am, the complainant was in Northbridge in the vicinity of the Cultural Centre. She had missed her train and met the appellant's co-offender, who was apparently related to her boyfriend. He was with the appellant, whom she had known for a number of years. She was, it seems, distressed because she had missed her train. The appellant informed her that he had a friend who lived nearby who could give her a lift to her house in Midland. Believing the appellant, the complainant accompanied both offenders along a path leading towards the Claisebrook train station.

6 At some point during the walk, the two offenders discussed sexually assaulting the complainant. The complainant told both offenders to wait as she went behind some bushes adjacent to the path, because she needed to urinate. Once she had gone behind the bush, the appellant followed her into the bushes. She turned towards him and he grabbed her vaginal area through her jeans. That constituted count 1, the indecent assault.

7 The complainant moved away from the appellant, and ran off along the path towards the Claisebrook station. Both offenders chased her, as she tried to evade them by jumping over a small fence and running towards a nearby road. Both offenders cut her off and grabbed her, preventing her from getting to the road. That constituted the unlawful detention. The appellant then forced her into some bushes where, despite her pleas for him to stop, he pushed her to the ground and removed her jeans and underwear. He then lay on top of her, pinning her arms and penetrating her vagina with his penis. When she begged him to stop, he stated he would hurt her badly and threatened to cut her throat if she screamed. The co-offender stood nearby as lookout and, on several occasions, told passers-by that what was occurring was "just a fight" and nothing untoward.

8 The offending ended only when two passers-by, hearing a muffled scream, approached the bushes. The appellant stood up and ran off, leaving the complainant on the ground. One of the passers-by grabbed the co-offender, while the other attended to the complainant. However, the co-offender escaped when the person who had been holding him released his grip. The complainant was taken to Royal Perth Hospital, where she received treatment for minor injuries. Both offenders were apprehended separately later in the day, and made admissions in a video record of interview. At the date of sentencing of the appellant, the co-offender had not been dealt with.

9 So far as the assault occasioning bodily harm was concerned, in January 2005, again in the very early hours of the morning, the appellant was one of a group of about 20 adults and children on a walkway passing over Roe Street in Perth towards the Perth train station. A member of that group became involved in a "confrontation" with the complainant, who was with two other people. Two male juveniles punched and knocked the complainant to the ground, then started kicking him. Two girls intervened and the complainant was able to get to his feet and begin walking towards Northbridge. However, two juveniles attacked him again, and two adult offenders (one being the appellant) joined in, so that he fell to the ground. The four participants kicked him while he was on the ground, and one of the juveniles jumped on him. As a result of the incident, the complainant had bruising to the nose, body and face, and was bleeding from several lacerations. The appellant, in admitting the offence, said, "He made my cousin bleed, so I punched him three times and only kicked him a little bit on the ground. Young boys kicked him when he was all curled up in a ball".

10 There was a pre-sentence report, a psychological report, and a psychiatric assessment in relation to the appellant. There were certain inconsistencies between them, although there were substantially common themes. The inconsistencies related largely to what the appellant himself had said about the circumstances of the offence. In particular, he told the author of the pre-sentence report that he and the co-offender had not discussed the possibility of the sexual assault, and that he did not threaten to hurt her badly or cut her throat. He told the author of that report that he had no idea why he committed the offence, since he was not sexually aroused in any way by the victim; rather, he said "it just happened". However, he told the psychologist that he had felt sexually aroused during the day after a prolonged bout of drinking, sniffing paint and using amphetamines. He told the psychologist that, by the evening, he was intent on having sex with someone, although his choice of victim was opportunistic.

11 So far as the appellant's personal circumstances were concerned, he was an Aboriginal male who was almost 22 at the time of the offence. He had plainly had a dysfunctional childhood. His parents separated when he was very young, due to violence and alcohol abuse. At times he had lived with his mother in Geraldton, and at other times with his father in Perth. He had also lived with his grandparents on some occasions. Both parents apparently were substance abusers, were violent towards each other, and occasionally towards their children. He did not have close ties with any family members, which is hardly surprising in the circumstances. The author of the pre-sentence report commented that she was aware of those facts not only from the appellant's report, but from Community Justice Services' file notes and from her own previous contact with other members of the appellant's family.

12 The appellant left school in year 9, but it is clear that he struggled to learn prior to that and had frequently truanted. He has poor literacy and numeracy skills, has never been employed, and has no social skills. He has a lengthy history of substance abuse. That includes intravenous amphetamine use, alcohol abuse (which included a hospital admission with alcohol poisoning in 2000) and solvent abuse, which occasionally caused episodes of visual and auditory hallucination. A history of self-harm attempts, involving cutting of his wrists and attempting to hang himself, was noted on his file, including apparently five episodes in prison between August 2002 and April 2005.

13 The appellant has a lengthy record of offending, which includes offences of dishonesty such as stealing and burglary, offences of violence such as threatening words and common assault, and, in 1999 (when he was 16), three sexual offences, being one count of indecent dealing with a child under 13 and two counts of sexual penetration of a child under 13, for which he received a term of juvenile detention.

14 The appellant has no major psychiatric illness. He had, according to the psychiatric assessment, an antisocial personality disorder, and a history of alcohol, cannabis, amphetamine and solvent abuse. He has obvious cognitive deficits, which may well be a result of his substance abuse - particularly the solvent abuse - over a number of years. The various reports do not suggest a direct causal link between any of his various disorders and cognitive deficits and his offending, save that it is suggested that his intoxication and substance abuse in the period shortly before the offences may well have served to remove any inhibitions he might otherwise have felt.

15 Looking to the future, the psychiatrist concluded that the appellant's dangerousness was "significant" and his potential for reoffending in a violent manner and/or committing further sexual offences was "very high". The psychologist also considered that he was in a "high risk" category for further sexual offending. The psychologist noted that his history suggested "development of sexual entitlement beliefs and using women as sexual objects" and that that belief system needed to be challenged and altered, or he would remain at a significant risk of reoffending in a similar way. He did, however, impress the psychologist as being genuinely remorseful and as being willing to participate in a sex offender treatment programme. The author of the pre-sentence report took the view that he appeared to lack empathy for his victim, and to be blaming his substance abuse for the offences. She reported, however, that he said he had been so remorseful following the offences that he had fasted his trousers and shirt into a noose in order to hang himself, although he had desisted when he found that his neck was hurting.

16 The learned sentencing Judge considered that the offences were very serious examples of this type of offending, as they plainly were. She indicated that it seemed to her that there was a degree of planning of the offending. She noted that the offences were committed while the appellant was serving a suspended term of imprisonment and also noted the persistence in offending, in that the appellant and his co-offender had chased the complainant. Her Honour noted the troubled and destructive background of the appellant, his drug abuse, his willingness to participate in a sex offender treatment programme and his dangerousness and potential for reoffending. She expressly indicated that the sentences she imposed were imposed "[a]fter I have made allowances for the transitional provisions and the fast-track plea".

17 The third of the three grounds of appeal rests on a submission made in the teeth of all relevant authority in this State. It is that her Honour erred by failing to properly apply the "transitional provisions" and failing to give "proper credit" for the plea of guilty. As I have noted, her Honour expressly said that she was both giving credit for the plea, and applying the transitional provisions. The submissions in relation to this ground boil down to the proposition that, because her Honour neither quantified the amount of the discount for the plea, nor announced what sentence she would have imposed prior to the transitional provisions, it is not possible to discern whether she had "correctly" applied the transitional provisions or how the discount for the plea was calculated.

18 The transitional provisions had been in operation, by the time at which her Honour sentenced the appellant, for almost two years. She expressly announced that she was taking account of the transitional provisions. There is, therefore, no reason to consider that she did not "correctly" apply them: see Worthington v The State of Western Australia [2005] WASCA 72; (2005) 152 A Crim R 585 at [28] per Steytler P, [80] per Pullin JA.

19 As to the discount for the plea of guilty, it is often desirable to quantify the discount, at least where the sentencing exercise is otherwise a simple one. In complex cases, of course, a separate discount for the plea of guilty may distort the sentencing process and quantification would be inappropriate. Where the discount is able to be quantified, it has certain advantages. It facilitates the administration of justice, in allowing offenders who are considering their position to be advised with certainty; it demonstrates clearly to the offender being sentenced that his plea has been given significant weight; where there are co-offenders, it facilitates appropriate comparison between those who plead guilty and those who do not; and it is often of assistance to a Court of Appeal in reviewing a sentence: see Verschuren v The Queen (1996) 17 WAR 467 at 470 per Malcolm CJ, at 474 Pidgeon J; Fullgrabe v The State of Western Australia [2006] WASCA 138 at [27] - [28] per Martin CJ.

20 However, since arguments often put to this Court appear to be based on a misunderstanding of observations of the kind made above, it must be made unambiguously clear that it is not an error to fail to quantify the discount. A failure to quantify the discount cannot give rise to an arguable ground of appeal: Chivers v The State of Western Australia [2005] WASCA 97.

21 In the present case, for reasons which I will shortly develop, it is clear that her Honour did afford the appellant a significant discount. Ground 3 must therefore fail.

22 The first ground of appeal is concerned with the principle of totality and the so-called "one transaction" rules. So far as the "one transaction" rule is concerned, it is necessary to restate yet again the observations of McLure JA in R v Faithfull [2004] WASCA 39; (2004) 142 A Crim R 554, in which her Honour noted at [28] that "[i]t is not a principle of law or sentencing that concurrent terms must be imposed for multiple offences constituting one transaction or a continuing episode". The appellant's submissions in this respect erroneously concentrate, not upon the application of the principles which are described in Pearce v The Queen (1998) 194 CLR 610, but attempt to analyse, in some sort of abstract way, whether the three offences on 18 June 2005 constituted one or more than one "transaction" or "incident".

23 It is, however, plain why her Honour imposed distinct sentences. The first indecent assault might have been an end of the appellant's criminality on the morning in question, since the complainant escaped for a short time, had he and his co-offender not pursued her. Her Honour therefore regarded that as deserving of distinct and additional punishment. Although the unlawful detention was technically a separate offence, it was plainly for the purpose of carrying out the sexual penetration offence which then occurred, and was very close in time to it. For that reason, the latter two sentences were made concurrent. I would accept that it would have been open for her Honour to have characterised the incidents differently. She might, for example, have taken the view that there was but one "transaction", but it would have been necessary to characterise that transaction, then, as a rather longer one involving a planned, determined and persistent attack upon the complainant, culminating in the sexual assault. It was only because she separately marked the indecent assault with a cumulative term of imprisonment that it was appropriate, in my view, for her to impose a term as short as she did in relation to the sexual penetration. In the end, what matters is whether the total sentence imposed was proportionate to the total criminality of the offending, which it was.

24 So far as totality is concerned, the appellant's written submissions refer to a number of cases which are to the effect that a custodial term "longer than is necessary" (that is, necessary in order to protect the public and achieve the objectives of punishment, retribution, deterrence and so on) is not in the public interest, in that it gives rise to the possibility that the public will not be protected because the offender "might come out of prison worse than he went in" (citing Magee v The Queen [1980] WAR 117 at 119 per Wickham J). That is a peculiar basis upon which to base an appeal in the present case, since it is difficult to see how this appellant, who has a lengthy history of offending, no insight into his behaviour, no apparent ability to see how he can begin to rehabilitate himself, and is assessed as presenting a serious danger, could possibly come out of prison after a period of years "worse than he went in". It would, of course, be quite wrong to impose a sentence longer than was otherwise appropriate in order to facilitate the appellant's rehabilitation. However, this is not, plainly, a case in which the interests of the community require that an otherwise proportionate sentence be reduced in order to ensure that the community's long-term interest may be served by effecting the offender's rehabilitation outside the prison system.

25 I would also make these observations in relation to the total term generally. While there is no tariff for sexual penetration without consent, the general range of sentences commonly imposed prior to the transitional provisions for a single act of penetration of the vagina with the penis, where the victim was an adult, was of the order of 6 to 9 years (now 4 to 6 years): The State of Western Australia v Turaga [2006] WASCA 199 at [12], [35]. Count 3 on the indictment was not a simple sexual penetration without consent, since two circumstances of aggravation were made out, and the Courts should, in such a case, give effect to the legislative intention which can be seen in the higher statutory maximum penalty for such an offence. The sentence imposed here, even allowing for the plea of guilty and other mitigating circumstances, was within an appropriate range. The sentence in respect of count 1 was also appropriate, and the accumulation of the two fairly reflected the appellant's "total criminality" (Faithfull at [28]). The assault has plainly been a distinct and separate invasion of a different legal interest, on a different occasion, and the term of imprisonment which had earlier been imposed and suspended, was not severe, having regard to the circumstances of the offence. There was no reason not to require that term to have served cumulatively. Ground 1 must fail.

26 Finally, I turn to the ground of appeal which is concerned with the contention that her Honour failed to give proper weight to the appellant's mental disabilities and failed to acknowledge that personal and general deterrence were "lesser considerations in the Appellant's case". This is not, in my view, a case in which it is necessary to deal in any detail with the principles which govern the way in which the psychiatric illness or mental disability of an offender should be taken into account in sentencing. I am prepared to accept, for present purposes, both that psychiatric illness may reduce the moral culpability of the offence, and that an offender suffering from serious psychiatric illness, or other serious intellectual disability, may not be an appropriate vehicle for general deterrence and that specific deterrence in those circumstances may be more difficult to achieve. On the other hand, authority also recognises that intellectual deficit or mental illness may increase the likelihood of re-offending, so that protection of the community would require that the Court not reduce an otherwise proportionate sentence on account of such disability or illness: Veen v The Queen (No 2) [1988] HCA 14; (1988) 164 CLR 465 at 476; CW [2000] WASCA 81; (2000) 111 A Crim R 287. Those considerations are relevant here, to the extent that the appellant's substance abuse and its consequences contributed to his offending.

27 However, this ground is in any event one which is (as is, to a degree, the ground concerned with totality) based upon a misstatement of the appellant's circumstances. Those misstatements are contained in par 11 of the appellant's submissions. It is asserted that the appellant has a "likely prognosis of brain damage", was "suitable for inclusion in a sex offenders' treatment program", and had "shown remorse and moral guilt to such an extent he attempted self harm in custody". It was further asserted that he was "not a sexual predator who planned the incident". All of these assertions are justified, not by reference to any of the reports, or to her Honour's findings, but by reference to the submissions which the appellant's counsel made to her Honour.

28 Dealing with those assertions in turn, the author of the psychiatric report observes only that it is "likely" that the chronic solvent sniffing and alcohol abuse have resulted in brain damage "most likely to his frontal lobes". There is no clear diagnosis of brain damage. Importantly, there is no indication that any brain damage which may have been sustained was causally connected with the offending. Indeed, as the facts I have outlined already make clear, and as her Honour observed, there was at least some rudimentary degree of planning involved, and it is not suggested in any of the reports that the appellant, although lacking in empathy with his victim, did not understand that she did not wish to be sexually assaulted, or that it was wrong to do so. The desirability of the appellant undertaking a sex offenders' treatment programme was recognised by the author of the psychological report, who was of the view that it was desirable that his attitudes towards sexuality and women should be challenged by such a programme. It is true that he appears to have attempted self-harm in custody; however, it is by no means clear that that attempt is related to any "remorse and moral guilt", rather than being simply a continuation of a pattern of attempted self-harm long predating these offences. I do not understand what is meant by the submission that he was "not a sexual predator"; this was the second incident of sexual offending in the history of a man only 22 years of age, and her Honour found, as it was open for her to do, that there was a degree of planning in the offence.

29 The appellant's submissions also assert that "[t]he protection of the community was not cited as a significant consideration in arriving at the appropriate sentence". That submission is simply bizarre, for two reasons. The first is that her Honour expressly referred to the psychiatric report, which noted the appellant's dangerousness and potential for further reoffending in a violent or sexual manner. The second reason is that, in the light of the reports to which I have referred, protection of the community must have been at the forefront of her Honour's thinking.

30 In summary, so far as this ground is concerned, the appellant's mental disabilities were factors which, like his troubled history, his substance abuse, his limited education, and his entrenched history of offending, all suggested that he was impulsive, had poor self-control, and would find rehabilitation very difficult. They were not matters which were causally connected with the offending so as to lessen his moral culpability. There was nothing in the reports which suggested that general deterrence was not an appropriate consideration in his case. Indeed, the pre-sentence report noted that he was aware that he was facing a term of imprisonment for the offences, and was concerned at the possible length. The assumption behind general and personal deterrence is that concerns of this kind, if acted upon, will prompt an offender to participate in rehabilitative programmes, and will lead an offender to decide not to offend in future. It will obviously not be easy for the appellant to do so,

given his history, but there is nothing in the reports to suggest that it is not possible. This appeal was therefore dismissed.

31 McLURE JA: I have had the advantage of reading the reasons for judgment of Wheeler JA. I agree with them. I would stress that the sentencing Judge did not err in failing to quantify the discount given for the appellant's plea of guilty. The relevant legal principles are set out by Steytler P in Chivers v The State of Western Australia [2005] WASCA 97 at [24] - [27]. In appropriate cases, the quantification of the allowance made for a plea of guilty will not amount to an error. I know of no authority for the proposition that the failure to quantify the discount can itself give rise to an error.

• The circumstances of the offences
• The appellant's personal circumstances
• The sentencing remarks
• Transitional provisions and plea of guilty
• Totality and "one transaction"
• The appellant's mental condition