Applicant : Unrepresented Criminal Appellants Scheme

Leslie v The Queen, unreported; CCA SCt of WA; Library No 940080; 21 February 1994

Little v The Queen [2001] WASCA 87

Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665

Melbourne v The Queen [1999] HCA 32; (1999) 198 CLR 1

Radebe v The Queen [2001] WASCA 254

Stretton v The Queen, unreported; CCA SCt of WA; Library No 950282; 1 June 1995

Trescuri v The Queen [1999] WASCA 172

1 JUDGMENT OF THE COURT: On 15 September 2000, the applicant pleaded guilty in the District Court before Hammond CJDC, the Chief Judge of the Court, to a number of offences. He had in fact pleaded guilty at the first opportunity in the Court of Petty Sessions and had co-operated in the process of expedited committal under the Justices Act 1902 (WA), s 101. The speed of the process and the extent of the applicant's co-operation in the processes of the courts can be judged by the fact that all of the offences of which he was convicted were committed on 15 July 2000. His Honour took time for consideration and passed sentence on 21 September 2000 which, sadly, happened to be the applicant's 27th birthday.

2 By reference to the indictment, the offences can be briefly described and the sentences imposed set out. The numbers used below are the numbered counts in the indictment:

3 (1) Aggravated burglary upon the dwelling of a young woman of 23, the circumstances of aggravation being that the householder, who may be described as the principal complainant, who the applicant ought to have known would be at home, was in fact at home and was detained by the applicant. The applicant was sentenced to 3 years imprisonment.

4 (2) Aggravated sexual assault. This was an act of penile penetration of the complainant's vagina aggravated by the fact that the applicant was armed with a wine bottle which he used as a weapon to threaten his victim. For this offence he was sentenced to 6 years imprisonment concurrent.

5 (3) Aggravated sexual assault. This was a penile penetration of the complainant's anus aggravated by the circumstance that he was armed with the wine bottle. For this offence he was sentenced to 6 years imprisonment concurrent.

6 (4) Aggravated sexual assault. This was a penile penetration of the woman's mouth. Two circumstances of aggravation were alleged; one that he was armed with the bottle and the second that the act of pushing the complainant to her knees to perform fellatio upon him was an act which was likely to seriously and substantially degrade or humiliate her. For this offence the applicant was sentenced to 8 years imprisonment concurrent.

7 (5) Aggravated sexual assault, a second penetration of the woman's vagina with the applicant's penis with the same circumstance of aggravation that the offender was armed. He was sentenced to 6 years imprisonment concurrent.

8 (6) Aggravated sexual assault, a final act of penetration of her vagina with the applicant's penis whilst he was armed with the bottle and at which time he did bodily harm to the complainant. In this case the sentence imposed was 8 years imprisonment concurrent and so the aggregate term to this point was one of 8 years imprisonment.

9 (7) Assault occasioning bodily harm to the complainant's brother who returned home and bravely endeavoured to assist his sister. A sentence of 2 years imprisonment cumulative was imposed.

10 (8) A further offence of aggravated burglary committed upon the same dwelling house with the circumstance of aggravation being, effectively, that the applicant well knew at that time that there were other persons in the place, those persons being the principal complainant and her brother. For this offence the applicant was sentenced to 3 years imprisonment concurrent.

11 (9) Robbery. When the applicant returned and again entered the house, he demanded the keys to the brother's car and stole it. He was sentenced to 4 years imprisonment concurrent.

12 (10) A little later in time a further offence of burglary, committed upon another house which the applicant entered and in which he caused what would appear to be quite considerable damage to property. For this offence he was sentenced to 1 year imprisonment concurrent. It is evident from the remarks made by the sentencing Judge that his Honour misunderstood the facts in relation to this matter, treating it as an offence of criminal damage caused to property in the home of the principal complainant on the second occasion on which that place was unlawfully entered.

13 (11) Finally, an offence of assaulting a police constable with intent to prevent the applicant's lawful arrest. For this offence he was sentenced to imprisonment for 1 year cumulative.

14 The aggregate term of imprisonment can therefore be seen to be one of 11 years imprisonment. An order of eligibility for parole was made and the sentence was backdated to 17 July 2000 from which date, upon his arrest, the applicant was held in custody on remand. The grounds upon which the applicant applied for leave to appeal against those sentences are:

"1. The total head sentence imposed upon me was manifestly excessive in that:

b. It failed to reflect my prospects for rehabilitation;

c. It failed to reflect my traumatic childhood and my own physical and emotional abuse; and

d. The learned sentencing Judge erred in failing to give any or any sufficient consideration to my personal circumstances, including that I had a successful career, had a minimal prior record, had been in a stable relationship for 8 years and had two young children."

2. The learned sentencing judge did not give sufficient credit for my early pleas of guilty in respect of the offences for which I have been convicted."

After hearing argument in support of those grounds, the Court was of the view that leave to appeal should be refused. These are our reasons for that conclusion.

15 The mere recitation of the number and nature of the offences demonstrates their extreme seriousness. The point may be reinforced by considering that the offences of aggravated burglary committed upon the dwelling of the principal complainant are punishable by 20 years imprisonment. That offence committed on the second house, having regard to the way it was charged, is punishable by 18 years imprisonment. 20 years imprisonment is the maximum penalty for each of the aggravated sexual assaults. The robbery offence is punishable by 14 years imprisonment and the assault occasioning bodily harm and the assault with intent to prevent the applicant's arrest are each punishable by 5 years imprisonment.

16 The more detailed facts of the case as outlined by the Crown prosecutor were not in dispute and were accepted, subject to the misunderstanding as to count 10 we have mentioned, which worked in favour of the applicant. The first offence was committed just after midnight and so in the early hours of 15 July 2000. It appears that the applicant went to the home of the principal complainant entirely at random. He did not know her. He smashed the rear door and entered the house. He commenced to search, throwing items on the floor. The noise awoke the complainant who was alone in the house. She endeavoured to telephone the police but the applicant entered the bedroom, saw her and disconnected the telephone.

17 He threatened her with the bottle, grabbed her, removed her pyjama pants, forced her over the bed, penetrated her vagina with his penis and then penetrated her anus with his penis. He turned her around, forced her to the floor on her knees, forced her to perform oral sex upon him and then twice more penetrated her vagina with his penis, on the last occasion engaging in more extended intercourse with her during which there was a struggle in which the applicant bit the complainant, causing the bodily harm relied upon as a circumstance of aggravation in count 6.

18 While this was going on, the complainant's brother returned home. Upon entering the bedroom he saw what was happening and tackled the applicant who struck him a blow with his fist to the left side of this complainant's face, causing severe bruising and swelling.

19 It appears that the applicant left the house and the shaken occupants went to the kitchen to telephone the police. However, after a short period the applicant again forced his way into the house and into contact with the complainants. He demanded that the male person hand over the keys to his car which was parked outside. This was done. The applicant then left the house and attempted to drive away in the car. He caused it to collide with the front of the house and eventually bogged the car in a garden bed. The vehicle was severely damaged.

20 The applicant left that car and fled on foot, pursued, it would seem, by police officers who had responded to the telephone call made earlier. He entered another house nearby by breaking a rear window. Inside the house, the applicant appears to have embarked upon a process of damaging property, mainly windows and electrical equipment. He was apprehended there in the yard of that house. In the process, he slammed a gate on the hand and wrist of a constable, causing bruising but fortunately no serious damage. The applicant retreated back into the house and was there finally subdued, despite violent resistance, by four police officers. The applicant's determined resistance continued until the officers managed to place him in the rear of a security van.

21 It is difficult to imagine a more extended or violent course of criminal conduct involving the unlawful entry into the home of the principal complainant, not once but twice, and the commission upon her of violent and demeaning sexual assaults of the utmost seriousness, not to mention the considerable damage done to property and the attack upon the complainant's brother. Finally, there was the violence offered to police officers performing the duties of their office. It was fortunate indeed that none were seriously injured.

22 So far as the principal complainant is concerned, there was medical evidence to show that she sustained bruises and abrasions to the area of her left eye, her left arm and shoulder, the right front portion of her chest, the left rear portion of her chest and to both legs. She sustained injuries to her vagina and otherwise in the area of her genitalia, which injuries were entirely consistent with the very forceful nature of the sexual assaults repeatedly committed upon her.

23 More importantly perhaps, the sentencing Judge was provided with victim impact statements detailing the consequences of the commission of the offences upon the complainant and her brother. The psychological consequences for both victims have been substantial and have been compounded by other difficulties detailed in the statements, to which we need not refer in these reasons. Hammond CJDC said of the victim impact statement of the principal complainant that it made "harrowing reading". We can only agree.

24 So far as the applicant is concerned, the court was provided with a pre-sentence report and a detailed psychological report provided by a psychologist who is a consultant to the sex offender treatment unit of the prison service of the Department of Justice. It seems that by the time the applicant was interviewed for these reports, he had no recollection of the details of his behaviour. His recollection may be described as "patchy". He could not believe that he had behaved so violently or had sexually violated the principal complainant in the way described. He said that his actions in that regard were not pre-meditated. It seems to us that the evidence supports that view. The applicant's de facto wife with whom he has had a relationship for some eight years, a relationship which has produced two very young children aged 3 and 1, describes the applicant as ordinarily being a gentle, sensitive and caring person.

25 Having regard to these expert reports, the offences appear to be explained, but in no way excused, by the fact that the applicant was very severely intoxicated by alcohol. The applicant appears to know of his difficulty in this regard. He told the community corrections officer that when he drank "he invariably ended in trouble".

26 The psychologist identified other problems. The applicant appears to have suffered severe physical and emotional abuse himself as a child. He regards his mother as being implicated in this ill-treatment. He has developed a hatred for her. His antipathy towards her was increased when about six weeks before the commission of the offences his relationship with his de facto wife deteriorated to such an extent that she left him and went to Adelaide for three weeks. The applicant felt that his mother was again implicated in concealing the whereabouts of his wife.

27 There have been sexual difficulties in that relationship. It appears that the applicant's sexual needs may not have been satisfied in the context of the relationship. He has habitually engaged the services of prostitutes. The psychologist thought he had something of a preoccupation with sex. Finally, at about the time of the commission of these offences, the applicant was suffering business difficulties and financial problems.

28 Against that background of personal difficulties and his "poor attitude towards women" reported by the psychologist, it would seem that when, with the applicant's inhibitions destroyed by the consumption of alcohol, he encountered the complainant and the others who resisted him on this night, his response was to offend against them with extreme violence.

29 However, those who reported upon him reported the applicant's "genuine remorse" and this was accepted by the Chief Judge. It was reported that the applicant understood the harm he had done to the principal complainant and that he was keen to address the personal issues which were related to his offending behaviour. He accepted that he required psychological counselling in relation to the issues stemming from his childhood. He needed to participate in the sex offender treatment programme, an anger management programme and a substance use programme. If that course of treatment could be successfully engaged, there was a prospect that his present "medium/high risk of reoffending in a like manner" could be substantially reduced. None of that was overlooked by the sentencing Judge.

30 However, his Honour also appreciated that the extreme seriousness of the offences committed meant the imposition of sentences which individually and in their aggregate were proportionate to the criminality involved in that they sufficiently recognised the need for the court to denounce by the sentences imposed such extreme violence in the context of home invasion, the need to adequately punish the applicant and the need by a sufficiently severe sentence to provide adequately for the aims of particular and general deterrence, subject only to the need to observe the totality principle and prevent the total sentencing result from assuming crushing proportions.

31 In our opinion, the individual sentences imposed by the Chief Judge were of an appropriate length or were, if anything, rather lenient. It is clear, we think, that the aggregate term was well within the range of a properly proportionate response by the court to the total criminality involved. It is apparent that a degree of appropriate accumulation has been sacrificed. For example, the sentences for the sexual assaults committed upon the principal complainant might well, even if they were ordered to be served concurrently with each other, have been ordered to be served cumulatively upon the sentence imposed for the initial aggravated burglary. Again, the sentence imposed for the second burglary of the same house might well have been imposed cumulatively, as might the sentences for robbery and the burglary committed upon the second dwelling. In our opinion, the applicant can have no complaint that he has not been fairly dealt with in that regard.

32 The applicant had a relevant criminal history of minor assaults, disturbances and resisting arrest. Nonetheless, but quite properly, Hammond CJDC ordered eligibility for parole. That was a part of the sentencing process which served to promote the processes of the applicant's rehabilitation. For those reasons we concluded that ground 1 could not be made out.

33 Specifically as to ground 2 and the suggestion that an insufficient credit for the very early pleas of guilty was provided, there is no doubt that the applicant's genuine remorse and the early pleas of guilty were such as to attract a very substantial credit: cf Cameron v The Queen (2002) 76 ALJR 382. As was said by this Court in Miles v The Queen (1997) 17 WAR 518 per Malcolm CJ, with whom Pidgeon and White JJ agreed, at 521, "It is the fact that the discount for a plea of guilty under the fast-track system has ranged between 20-25 per cent up to 30-35 per cent depending upon the circumstances."

"As to the question of what discount has been allowed, it becomes difficult to quantify it in this particular case because of the complexity of the sentencing, but let me make it clear that in imposing what amounts to a term of 8 years for the sexual offences committed against the female complainant, I am indeed reducing it from a sentence in excess of 10 years that would have been imposed were it not for the plea of guilty in this matter which has saved the complainant and her brother considerable trauma." (our emphasis)

His Honour did not say what aggregate term he would have imposed absent the pleas of guilty. He referred to this matter again when imposing the sentence for assault occasioning bodily harm by saying:

"Again, I would state that that sentence is reduced from 3 years to 2 years because of the offender's plea."

35 In our view, his Honour's sentencing remarks do not enable one to do the mathematical exercise of ascertaining the percentage discount attached specifically to the pleas of guilty; nor, in our view, is there any requirement that this should be so. The duty of a sentencing Judge is to explain what is being done by way of sentence and the reasoning behind it, so that the offender knows how the sentences finally imposed have been arrived at. Neither in Miles nor in any other case has this Court said that to discharge that duty of explanation it is necessary to quantify in terms of time or percentage the mitigatory power in any particular case of pleas of guilty. The imposition of a just sentence remains a matter of discretionary judgment. In this case as, in our opinion, in every case, the mix of factors which have aggravating and mitigating tendencies respectively will be complex and the process of evaluating and weighing them along the road to arriving at a properly proportionate sentence is not a process admitting of "mathematical precision": Pearce v The Queen (1998) 194 CLR 610 at 624 [46].

36 In our opinion, it is perfectly clear that in the individual sentences imposed and in the aggregate term arrived at, there is a very considerable discount rightly given for the pleas of guilty made at the earliest opportunity. For those reasons, we reached the conclusion that ground 2 could not be made out with the result that the application for leave to appeal was necessarily refused.