COOPER -v- THE STATE OF WESTERN AUSTRALIA [2020] WASCA 199 (25 November 2020)

(2) 13 counts of unlawfully and indecently dealing with a child under the age of 14 years and two counts of inciting a child under the age of 14 years to indecently deal with the appellant, in respect of four victims, all contrary to s 183 of the Code (repealed);

(3) eight counts of unlawfully and indecently assaulting a male contrary to s 315 of the Code (repealed) in respect of four victims; and

(4) one count of unlawfully and indecently assaulting a female contrary to s 328 of the Code (repealed).

1. On 8 June 2018, the appellant was sentenced to a total effective sentence of 20 years' imprisonment with eligibility for parole, backdated to commence on 21 April 2018.[3] The details of the individual sentences appear in the table below. The stated statutory penalty for the offence is that applied by the sentencing judge. As will be seen, the appellant alleges that the sentencing judge erred in respect of some of the maximum penalties he applied.

Inciting a child under 14 years to indecently deal, Ms B

Inciting a child under 14 years to indecently deal, Ms B

20 years' imprisonment, eligible for parole, commencement date 21 April 2018

1. The appellant relies on four grounds of appeal. Ground 1 alleges that the total effective sentence infringed both limbs of the totality principle. Ground 2 was abandoned at the hearing of the appeal.[4] Grounds 3 and 4 allege that his Honour erred in his assessment of the maximum penalties for some of the offences committed by the appellant.

1. The facts of the appellant's offending are not in dispute. They may be summarised as follows.
2. The appellant was born in Scotland on 6 September 1951. He was aged between 25 years and 31 years during the period of his offending. He was 66 years of age at the time of sentencing.[5]
3. At all material times, the appellant was married to his wife, N. On 19 May 1978, N commenced her employment as a cottage or hostel parent at Warminda Hostel in East Victoria Park (Warminda).[6] Warminda comprised a two‑storey building, which had bedrooms and bathrooms both downstairs and upstairs.[7]
4. Warminda was owned by the Western Australian Government but was operated by the Uniting Church, which was the appellant's wife's employer.[8]
5. Warminda was set up to house children in State care. Each of the eight victims of the appellant's offending were wards of the State. Each child was in State care because their parents were either unable or unwilling to care for them. Some of the children had been sexually abused by their parents or other family members.[9]
6. Warminda had the capacity to accommodate 10 children at a time.[10] The children slept in the hostel area, while the appellant and his wife resided in a flat attached to the hostel area.[11]
7. The appellant's wife was employed to care for and supervise the children who were residents at Warminda. Although the appellant was never formally employed there, he assisted his wife with running the hostel.[12] His Honour found that 'the welfare authorities' and the Uniting Church would have known that the appellant was working at Warminda and assisting his wife even though he was not formally employed.[13] The appellant was the person with whom the children were mainly involved, and with whom they had the most contact.[14] The appellant was in a position of power and trust towards the children.[15]
8. Over a period of approximately five years, from 1978 to 1983, the appellant engaged in repeated and persistent sexual offending against children in his care who were under his power, protection and authority.[16]
9. The appellant's offending was not a series of isolated acts, but was committed in the context of, and against the background of, repeated and persistent sexual abuse of the children he and his wife cared for while at Warminda.[17] The appellant's offending must also be seen in the context of, and against the background of, constant threats, verbal and physical abuse and intimidation. All of the victims lived in fear of the appellant.[18]
10. As will be seen, much of the offending occurred at night when the children were asleep in their own beds and were awoken by the appellant. The offending has had serious life‑long consequences for the victims.[19] His Honour found that the appellant committed the offences to satisfy his sexual and sadistic perversions.[20] He degraded and humiliated the children, describing them as unwanted and telling them that no one would believe them if they complained. The learned sentencing judge found that the appellant preyed on the victims' vulnerability, and that he showed no empathy or sympathy for them.[21]

Counts 3 and 4: Mr A - two counts of unlawfully and indecently assaulting a male

1. Mr A was a resident at Warminda from 5 February 1978 to 19 December 1978.[22] At the time, he was aged 14. Counts 3 and 4 occurred when Mr A was in the shower. The appellant came into the shower and told Mr A that he was not washing himself properly. The appellant got a sponge and soap and eventually washed Mr A's whole body, including his anus and his penis, using the soap and his hands.[23]

Counts 7 - 13: Ms B - three counts of rape, two counts of unlawfully and indecently dealing with a child under the age of 14 years, and two counts of inciting a child under the age of 14 years to unlawfully and indecently deal with the appellant

1. Ms B, Ms D and Ms N were sisters. Ms B was the middle sister. Ms B resided at Warminda on two separate occasions. The first was between 5 February 1978 and 20 December 1980, and the second was between 23 September 1981 and 27 August 1982.[24]
2. Counts 7 and 8 occurred in the same incident, when Ms B was around the age of 11. One night, the appellant came into Ms B's bedroom, sat on her bed and rubbed on her genital area on the outside of the bedding. He then placed Ms B's hand on his penis (count 8). He then rubbed her genital area, beneath the bedding but on top of her pyjamas (count 7).[25] The appellant then pulled her hand and placed it onto his penis and held it there. At the same time, the appellant rubbed Ms B's vaginal area.[26]
3. The incident the subject of count 9 occurred when Ms B was aged 11. She was in the kitchen, one weekend day, when the appellant told her that he needed help moving a mattress in the loft of the garage. When Ms B walked to the garage, she noted that some of the male residents of Warminda were standing outside. The appellant told them that they could go, and that he did not need them.[27]
4. Ms B started climbing a ladder. The appellant, who was behind her, grabbed hold of her leg. Ms B climbed quicker, with the appellant still climbing behind her. Eventually, the appellant threw Ms B to the floor. The appellant leaned across her, put his hand on her mouth and told her to shut up. He then undid her jeans and pulled them down. Ms B described a sharp, horrible pain in between her legs as the appellant was on top of her. The next thing she recalled was waking up and seeing blood on her legs, jeans and underwear. Her jeans and underwear were around her ankles. Ms B then got dressed and ran into her bedroom and hid.[28]
5. Count 10 occurred on a day when Ms B was in the lounge room of the flat occupied by the appellant and his wife at Warminda. The appellant made her sit on his lap while he was listening to music with some of the boys. The appellant took hold of Ms B's left hand and placed it over his penis, forcing her to masturbate him until he ejaculated. Ms B tried to pull away, but the appellant told her to be quiet. After this incident, the appellant said to Ms B, 'Now, you be quiet about this'.[29]
6. The incident the subject of count 11, another offence of rape, occurred when Ms B was aged 13. This offence occurred in a small, windowless storage room. Ms B called it 'the lock‑up room' because she would be locked in there from time to time as punishment.[30]
7. The appellant grabbed Ms B by the hair and propelled her into the lock‑up room, and then followed her into the room. She crawled into the corner, trying to get away from the appellant. The appellant said to her, 'This is going to be good for you, you're really going to like this'. At this point, Ms B was wedged into the corner of the room. The appellant pulled down her pants and underwear and inserted his penis into her vagina. As he thrust backwards and forwards, Ms B's head hit the wall with such force that she thought it was going to crack open. As this occurred, the appellant said to her, 'Doesn't this feel good?'. After the commission of the offence, the appellant left the room, leaving Ms B crying and hitting her head against the wall.[31] The appellant came back and told her to shut up and stop crying, and that the more noise she made, the longer she would be in the room.[32]
8. Counts 12 and 13 occurred in the same incident when Ms B was 13 years old. They occurred in the main lounge room at Warminda. At the time, Ms B was watching television when the appellant walked into the room. Ms B stood up, but the appellant pushed her backwards into a beanbag. The appellant then put his left arm on her chest and pulled her underwear down. As she tried to pull away, she felt what she thought was the appellant's thumb inside her vagina, causing her pain. This act was not charged as an offence.[33]
9. The appellant then put his penis into her mouth, and took hold of Ms B's hair to move her head. Ms B had difficulty breathing (count 12). The appellant then inserted his penis into her vagina and engaged in sexual intercourse with her (count 13). Ms B remembered seeing some boys looking through the window from the outside. She also recalled the appellant saying words to her to the effect that this would be really good for her and that she would like it. She told the appellant that she liked it because she just wanted it to be over and done with.[34]

Counts 14 - 16 and 20: Mr C - four counts of unlawfully and indecently assaulting a male

1. Mr C was a resident of Warminda from 19 June 1978 to 21 December 1979.[35] The offences against Mr C occurred when he was aged 15 or 16 years.[36]
2. Counts 14 and 15 occurred in the same incident on Mr C's second night at Warminda. Mr C was in his bedroom dressed only in a towel, having just come out of the shower. The appellant grabbed Mr C from behind and fell forward onto a bed, causing Mr C's towel to come off. The appellant laughed as he wrestled with Mr C. Mr C tried to move his arms, and as he was doing so, the appellant grabbed Mr C's penis and testicles and forcibly squeezed them (count 14). At the same time, the appellant, who was wearing underpants, pushed his penis against Mr C's anus, without penetrating it (count 15).[37]
3. As the appellant squeezed Mr C's genitalia, he said something like 'don't scream or I'll squeeze them harder'. Mr C described the appellant's actions as extremely painful. The incident ceased when another Warminda resident walked into the room.[38]
4. His Honour found that the appellant squeezed Mr C's penis and testicles regularly, but the first such instance was the subject of count 14.[39]
5. Count 16 was another occasion on which the appellant squeezed Mr C's genitalia. This incident occurred when Mr C was in the shower. Mr C testified that the appellant regularly came into the boys' shower room while they were showering. On this occasion, the appellant reached over the top of the cubicle door, unlocked it and entered it wearing only his underpants. On this occasion, as the appellant squeezed Mr C's genitalia, he told him to whistle or he would squeeze harder.[40]
6. Mr C said that some of the occasions when the appellant would squeeze his genitalia lasted longer than others. Some were so painful that he almost blacked out. A lot of times he could not walk afterwards for between half an hour to an hour because of the pain.[41]
7. The incident the subject of count 20 occurred on an occasion when the appellant, Mr C and two other boys were staying in a tent at Cervantes. The appellant, Mr C and the other boys were all drinking beer. At one point, while the appellant was dressed in his underpants, he grabbed a pillow and rubbed it on his genital area. The appellant then grabbed Mr C's genitals through his jeans and squeezed them. The incident only ended when Mr C squeezed and twisted the appellant's nipple in an action Mr C called 'a nipple cripple'.[42]

Counts 21 and 22: Ms D - one count of unlawfully and indecently dealing with a child under the age of 14 years and one count of unlawfully and indecently assaulting a female

1. Ms D is Ms B's older sister. She has an intellectual disability. Ms D, like Ms B, was a resident at Warminda on two separate occasions. The first occasion was from 5 February 1978 to 6 August 1980. The second occasion was from 23 September 1981 to 17 April 1983.[43]
2. The incident the subject of count 21 occurred when Ms D was aged 13 years. One night while she was asleep in her downstairs bedroom, the appellant entered the bedroom, sat on the edge of her bed and placed his hand inside her clothes and rubbed her vagina. Ms D told him to back off and then started to scream and cry. The appellant then left the bedroom.[44]
3. Count 22 occurred on another occasion when Ms D was in bed. On this occasion, the appellant entered her bedroom, sat on her bed, touched her vagina, and then inserted his finger into her vagina. Ms D had her period at the time.[45]

Count 24: Mr S - one count of unlawfully and indecently assaulting a male

1. Mr S was a resident at Warminda from 7 February 1980 to 5 October 1981.[46]
2. In relation to count 24, Mr S went to speak to the appellant about being bullied by another resident. Mr S was beside himself about the situation. The appellant told Mr S that he could either beat the bully up or there was another way. At this point, the appellant closed the door to the lounge room, sat on a chair and then exposed his penis, gesturing to Mr S to perform oral sex on him. Mr S refused. The appellant told Mr S that if he did not perform oral sex on him, the violence would get worse and he (Mr S) would be bullied no end. The appellant then grabbed Mr S's head and put his penis into Mr S's mouth. Mr S performed oral sex on the appellant until he ejaculated into Mr S's mouth. As Mr S headed to the bathroom, the appellant said to him, 'Not a damn word'.[47]

1. Ms F was a resident at Warminda from 7 February 1981 to 3 February 1982.[48]
2. In relation to count 27, at the relevant time, Ms F was experiencing difficulties at Warminda. She did not like the other residents and did not like being at Warminda itself.
3. Ms F described the appellant as loving to torment and manipulate the residents, including her. The appellant made derogatory remarks about Ms F's appearance. The appellant would often drink alcohol and smoke cigarettes with some of the male residents.
4. Ms F said that on a night when she and the appellant were left alone, the appellant promised her that he would make things easier if she had sex with him. Ms F agreed, even though she regarded him as 'a disgusting human being'. However, she believed that her life would be better if she had sex with the appellant.
5. The appellant then drove her to a laneway situated somewhere in Victoria Park. She had been there before with the appellant and some of the other male residents to drink beer, smoke cigarettes and talk.[49]
6. Ms F said that she got into the back seat of the car, took off her jeans and underwear and lay on the seat. The appellant then engaged in sexual intercourse with her until he ejaculated. The learned trial judge found, consistent with the verdict of guilty, that Ms F's consent to engage in sexual intercourse with the appellant was obtained by threats or intimidation towards her.[50]

Counts 28 - 33: Mr M - five counts of unlawfully and indecently dealing with a child under the age of 14 years and one count of unlawfully and indecently assaulting a male

1. Mr M was a resident at Warminda from 10 February 1981 to 23 August 1982.[51]
2. Mr M was 13 when the incident the subject of count 28 occurred. Mr M was sitting on the appellant's knee. He regarded the appellant as a father figure and was looking for affection. The appellant rubbed Mr M's penis over his pyjamas for a few minutes. The incident stopped when another boy walked into the room.[52]
3. Counts 29 and 30 occurred in the same incident when Mr M was aged 13 or 14. At the time, he shared a downstairs bedroom with another boy. One night, the appellant entered Mr M's bedroom and sat on the edge of his bed. The appellant reached over and placed his hand on Mr M's penis and masturbated him. At the same time, the appellant masturbated himself. The appellant then placed Mr M's hand on his penis, causing Mr M to masturbate the appellant until he ejaculated.[53] The sentencing judge commented that this type of incident 'happened a few times'. His Honour noted Mr M's evidence that it happened to him two or three times a week. His Honour observed that Mr M was not the only one.[54]
4. Counts 31 and 32 occurred in the same incident at Tomato Lake in Kewdale. The appellant drove Mr M to that location, where he gave Mr M several beers. The appellant put his hand down the front of Mr M's pants and masturbated him. The appellant then took hold of Mr M's hand, placed it on his penis and caused Mr M to masturbate the appellant until he ejaculated. Mr M said this type of incident happened 'a fair few times'.[55]
5. In relation to count 33, Mr M was urinating in the backyard at Warminda. The appellant approached him from behind and took hold of his penis. He let go only when Ms F came into the backyard and yelled out to Mr M.[56]

Counts 34 - 39 and count 43: Ms N - five counts of unlawfully and indecently dealing with a child under the age of 14 years and two counts of rape

1. Ms N was the younger sister of Ms B and Ms D. She resided at Warminda from 23 September 1981 to 6 December 1982.[57]
2. The offending the subject of counts 34 - 37 occurred on the one occasion. The appellant drove Ms N and two boys from Warminda to an area in nearby East Victoria Park. On the way, the appellant went to a bottle shop and purchased some beer.[58] After the car reached its destination, the appellant told the boys that he would give them beer if they would touch Ms N. One of the boys put his hand up Ms N's blouse, under her bra, and felt her breasts. The other boy put his hand beneath her underwear and touched her vagina. While this happened, the appellant was in the front seat watching and laughing.[59]
3. The appellant then said to the boys, 'Now I'll show you how you get them (sic) to do what you want to behave'.[60] The appellant gave the boys some beer. At this point, they were at the side of the car, laughing, drinking and smoking. The appellant then got into the rear seat of the car, touched Ms N's breasts and inserted his fingers into her vagina. He then pulled down her underpants and inserted his penis into her vagina and had sexual intercourse with her until he ejaculated inside her. All the while, the boys were present and watched what happened. At the time, Ms N was 12 years old.[61]
4. After the appellant finished having sexual intercourse with Ms N, he got out of the car and drank beer with the two boys. He told them, 'This is how you get them to do as they're told'. Meanwhile, Ms N was in the back seat of the car, crying.[62]
5. Counts 38 and 39 occurred in the same incident in Ms N's bedroom at Warminda. The appellant entered the bedroom, closed the door and told Ms N that he was going to have some fun. The appellant told Ms N not to make a noise and that she would be in trouble if his wife came out of their quarters.[63]
6. The appellant sat on Ms N's bed, pulled her pants down and started to rub her vagina. He then inserted his fingers into her vagina, saying to her, 'Looks like you're getting a big girl. You've got a bit of hair there' and, 'You're wet now. It will be easier to stick my penis in'. The appellant then undid his pants and inserted his penis into Ms N's vagina and had sexual intercourse with her until he ejaculated. As he did so, Ms N was crying and telling him to stop. He nevertheless continued until he ejaculated.[64]
7. Count 43 occurred on another occasion in Ms N's bedroom. At the time, she was changing out of her school uniform. The appellant entered her bedroom and put his hand down her bra and rubbed her breasts. At the same time, he rubbed his groin into her. She felt his penis through his pants.[65]

1. The learned sentencing judge received victim impact statements from all but one of the victims, which he summarised in his sentencing remarks. The victim impact statements make for harrowing reading. The appellant's crimes have caused enormous psychological damage to the victims. Each has suffered, and will continue to suffer, profound psychological hurt, which has affected their wellbeing and their relationships. Many suffer from recognised psychological and psychiatric disorders. Some have sought solace in alcohol and drugs. None could be said to be living a normal and happy life.

1. The appellant left school in Edinburgh when he was aged 15. He trained as an apprentice chef before emigrating to Australia, by himself, when he was about the age of 17.[66] After arriving in Australia, he lived mainly in New South Wales and the Australian Capital Territory. He was constantly employed from his arrival in this country, until he suffered an injury to his shoulder at work in 2011.[67]
2. Eventually, in the early 1970s, the appellant's parents emigrated from Scotland to Australia.[68] The appellant's father died in 2010.[69] However, his elderly mother, who is in poor physical health, is alive in New South Wales.[70]
3. After the appellant and his wife left Warminda, they returned to New South Wales. In 2016, the appellant was arrested and extradited to Western Australia.[71] The appellant has no prior criminal history.
4. The appellant has a number of health problems. In 1972, he was diagnosed as a type 1 insulant dependent diabetic.[72]
5. In 2013, he suffered a heart attack and underwent bypass surgery, during which a pacemaker was inserted. In 2014, the appellant underwent further heart surgery to replace an aortic valve.[73]
6. In 2011, as we have mentioned, the appellant suffered a shoulder injury at work, after which he underwent two lots of surgery.[74]
7. His Honour was provided with several medical reports in relation to the appellant, being from: (1) Dr Roger Clarnette, a consultant physician, dated 12 April 2018, (2) Dr Victoria Pascu, a consultant forensic psychiatrist, dated 27 June 2016, and (3) the appellant's general practitioner, Dr Fergus McCabe, dated 7 June 2018.
8. Dr Clarnette was consulted because of a number of incidents which Dr Clarnette referred to as 'cognitive deficits', including a poor recollection of recent events, forgetting to take medication, repetitive conversation and purchasing 'multiples of the same thing'.[75]
9. Dr Clarnette concluded that there was little evidence of vascular dementia, and that the appellant's behaviour and cognitive profile was more consistent with Alzheimer's disease. Dr Clarnette thought that the pathology of that disease was the most likely explanation for the appellant's cognitive impairment. He expressed the view that the appellant was 'in the mild dementia phase of his condition although this [is] an arbitrary designation'.[76]
10. Dr Pascu noted that the appellant did not have a documented history of mental illness or mental health problems. She diagnosed the appellant as having an adjustment reaction with anxiety symptoms.[77]
11. Dr McCabe, in his report, listed the appellant's medical conditions and the medications that he was receiving for those conditions. On the second page of Dr McCabe's report, he said:[78]

[The appellant] has early stage Alzheimer's Dementia. This condition progresses inexorably. The average life expectancy after a diagnosis ranges from 3 to 11 years and depends in part on how impaired the person is at the time of diagnosis. His current level of impairment is mild.

His Honour found that the appellant suffers from a mild form of dementia which will cause some reduced life expectancy, but he did not accept that the appellant's life expectancy was three to eleven years.[79] When his Honour indicated this view during defence counsel's plea in mitigation, defence counsel, in effect, agreed that Dr McCabe's statement as to average life expectancy could not, without more, be applied to the appellant.[80] His Honour's approach to Dr McCabe's report was, in substance, challenged by ground 2, which, as we have said, has been abandoned.

1. The learned sentencing judge, after describing in detail the appellant's medical conditions, found that as a result of his age and poor health, the appellant would suffer greater hardship in prison than an ordinary person in good health.[81] He also took into account as a mitigating factor that the appellant would be imprisoned in Western Australia, away from his family in New South Wales.[82] With respect to the appellant's age, the learned sentencing judge observed that the appellant was not of such an advanced age that any significant mitigating weight should be given to this factor. That said, his Honour said that the appellant's age, in combination with his poor physical health, meant that personal deterrence was of limited relevance.[83]
2. His Honour found that the appellant was not remorseful and had no victim empathy.[84] His Honour also noted that the appellant had no prior criminal history,[85] and had not committed any offences since leaving Warminda.[86]
3. His Honour characterised the offending as 'very serious involving persistent, horrific offending against children, particularly girls, who were in [the appellant's] care'.[87] His Honour observed that the appellant had subjected the children to violence and threats over an extended period of five years. His Honour expressed the view that a just sentence in the appellant's case must reflect the seriousness of his offending. As for the appellant's age and ill health, he said that they were only one factor to be taken into account in the sentencing process. He remarked that those factors could not justify the imposition of a sentence not fairly proportionate to the gravity of the offending.[88]
4. His Honour said that the appellant's offending was so serious that humanitarian considerations could not be accommodated, and that the necessity of imposing a sentence that reflected the seriousness of the offending outweighed the need to endeavour to ensure that the total effective sentence did not destroy any reasonable expectation of a useful life after release from custody. His Honour expressed the view that the seriousness of the appellant's offending was such that he had forfeited the right to any reasonable expectation of a useful life after release from prison.[89]

1. The general principles applicable to appeals against sentence are well established and were recently stated by this court in Kabambi v The State of Western Australia as follows:[90]

The general principles governing appeals contending that error should be inferred on the basis that an individual sentence is manifestly excessive or inadequate, or that a total effective sentence infringes the totality principle, 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) In order to determine whether a sentence for an individual offence is manifestly excessive or inadequate, the offence should be viewed in light of the maximum sentence prescribed by law for the crime, the standards of sentencing customarily imposed with respect to it, the place that the criminal conduct occupies in the scale of seriousness of crimes of that type, and the offender's personal circumstances.

(3) 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.

(4) 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.

(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 (which is not manifestly excessive) may be softened by an order that it be served concurrently with sentences imposed in relation to the other counts. A relatively light sentence (which is not manifestly inadequate) may, as a practical matter, have increased severity if it is ordered to be served cumulatively. The real question is whether the total effective sentence is unreasonable or plainly unjust.

Grounds 3 and 4 - what was the correct statutory penalty for the offences of rape and the offence of unlawful and indecent assault on a female?

1. These grounds concern the question of the correct statutory penalty for the repealed offences of rape (counts 9, 11, 13, 27, 37 and 39) and unlawful and indecent assault of a woman or girl (count 22).[91]
2. His Honour sentenced the appellant for the rape offences and the offence of unlawful and indecent assault of a woman or girl on the basis that the statutory penalties were respectively 20 years' imprisonment and 5 years' imprisonment.
3. By ground 3, the appellant contends that his Honour erred in finding that the appellant was subject to a statutory penalty of 20 years' imprisonment for the rape offences. He submits that the correct statutory penalty is 14 years' imprisonment.
4. By ground 4, the appellant contends that his Honour erred in finding that the statutory penalty for the offence of unlawful and indecent assault of a woman or girl was 5 years' imprisonment. He submits that the correct statutory penalty is 4 years' imprisonment.
5. In relation to ground 3, the State submits that the learned sentencing judge did not err as alleged, but that, if his Honour did, no different sentence should be imposed for any of the rape offences.[92]
6. In relation to ground 4, the State concedes that his Honour erred as alleged, but contends that no different sentence should be imposed on count 22.[93]
7. The answer to the question of what is the correct statutory penalty for the offence of rape and the offences of unlawful and indecent assault of a woman or girl committed by the appellant requires the consideration of a number of statutory provisions, in particular, s 11 of the Code and s 10 of the Sentencing Act 1995 (WA).

1. The offending alleged in counts 9, 11, 13, 27, 37 and 39 was said to have occurred on various unknown dates between 17 May 1978 and 13 July 1983.[94] At trial, there was no issue that all of the relevant victims were, at the time of the alleged offence, under the age of 16 years.[95] During the entirety of this period, s 325 and s 326 of the Code (since repealed) were contained in Chapter XXXII and read as follows:
   1. Any person who has carnal knowledge of a woman or girl, not his wife, or of his wife whilst he is separated from her and they are not residing in the same residence, without her consent, or with her consent if the consent is obtained by force, or by means of threats or intimidation of any kind, or by fear of bodily harm, or by means of false and fraudulent representations as to the nature of the act, or, in the case of a married woman, by personating her husband, is guilty of a crime which is called rape.
   2. Any person who commits the crime of rape is liable to imprisonment with hard labour for life, with or without whipping.
2. By s 6 of the Code, when the term 'carnal knowledge' is used in defining an offence, it is to be taken that the offence, so far as regards that element of it, is complete upon penetration. 'Carnal knowledge' itself is an old expression which at common law meant, in relation to the repealed offence of rape, any degree of penetration by the penis of the vagina: R v Lines.[96] The expression did not embrace any other forms of sexual penetration for the purposes of the offence of rape.
3. Count 22 was alleged to have occurred on an unknown date between 15 April 1978 and 15 April 1981, at a time when the victim was a girl under the age of 16 years. At the time of the alleged offence s 328 (since repealed) read:
   1. Any person who unlawfully and indecently assaults a woman or girl is guilty of a misdemeanour, and is liable to imprisonment with hard labour for four years.
4. While the offences in s 325 and s 328 above refer to 'a woman or girl', the age of the victim was not an element of either offence and the statutory penalty did not depend upon the age of the victim.
5. Sections 325, 326 and 328 were all repealed by the Acts Amendment (Sexual Assaults) Act 1985 (WA), which came into operation on 1 April 1986 (the 1986 Amendments). The 1986 Amendments inserted Chapter XXXIA into the Code. Chapter XXXIA introduced a number of new sexual offences, two of which (s 324D and s 324E) were analogous to the repealed offence of rape. These sections stated:

Sexual assault

324D Any person who sexually penetrates another person without the consent of that person is guilty of a crime and is liable to imprisonment for 14 years.

Aggravated sexual assault

324E Any person who sexually penetrates another person without the consent of that person and in circumstances of aggravation is guilty of a crime and is liable to imprisonment for 20 years.

1. Chapter XXXIA introduced provisions which defined the expression 'to sexually penetrate' (s 324F) and the word 'consent' (s 324G). The expression 'to sexually penetrate' was defined so that the new offences mentioned above embraced not only an act of penile penetration of the vagina, but other acts of sexual penetration of the body. The definition of 'consent' for the purposes of Chapter XXXIA meant a consent freely and voluntarily given, and stated that a consent is not freely and voluntarily given if it is obtained by force, threat, intimidation, deception or fraudulent means. In addition, the alleged victim of a sexual offence was referred to in gender‑neutral terms.
2. 'Circumstances of aggravation' were defined in s 324H of the Code to mean a number of circumstances, being that:

(a) the offender does bodily harm to any person;

(b) the offender is armed with any dangerous or offensive weapon or instrument or pretends to be so armed;

(c) at or immediately before or immediately after the commission of the offence, the offender does an act which is likely seriously and substantially to degrade or humiliate the victim;

(d) the offender is in company with another person or persons; or

(e) the person assaulted or sexually penetrated is under the age of 16 years or is of or above the age of 60 years.

1. It may immediately be noted that the repealed offences of rape and unlawful and indecent assault of a woman or girl did not refer to, either as an element or a circumstance of aggravation, any of the conduct embraced by the definition of circumstances of aggravation in s 324H of the Code.
2. Chapter XXXIA also included s 324B and s 324C, which were analogous to the repealed s 328 of the Code. These sections provided:

Indecent assault

324B Any person who unlawfully and indecently assaults another person is guilty of a misdemeanour and is liable to imprisonment for 4 years.

Aggravated indecent assault

324C Any person who unlawfully and indecently assaults another person in circumstances of aggravation is guilty of a misdemeanour and is liable to imprisonment for 6 years.

1. The aggravating circumstances for the purposes of s 324C were also those listed in s 324H.
2. Chapter XXXIA was repealed in its entirety by the Acts Amendment (Sexual Offences) Act 1992 (WA), which came into operation on 1 August 1992 (the 1992 Amendments). Chapter XXXI of the Code took its place. This chapter included, as new offences, the current versions of s 325 and s 326. These offences are in materially the same terms as the repealed s 324D and s 324E, except that s 325 was renamed 'sexual penetration without consent' and s 326 was renamed 'aggravated sexual penetration without consent'. The definition of sexual penetration was expanded to include penetration of the urethra and engaging in fellatio. The term 'vagina' was defined to include the labia majora. The definition of consent was also expanded to specify that a child under the age of 13 years was incapable of consenting to an act which constituted an offence against the child.
3. Other offences were created in Ch XXXI, including for sexual penetration of a child under the age of 13 years (s 320(2)), sexual penetration of a child of or over 13 and under 16 years (s 321(2)) and sexual penetration of a child of or over 13 and under 16 years who is under the care, supervision or authority of the offender (s 321(2) read with s 321(7)(b)). These offences were subject to statutory penalties of 20 years, 14 years and 20 years' imprisonment, respectively.
4. Chapter XXXI also included the offences of indecent assault in s 323 (previously s 324B of the Code) and aggravated indecent assault in s 324 (previously s 324C of the Code). The terms of these re-enacted provisions altered the penalties, but were not otherwise materially different from the repealed s 324B or s 324C.
5. In Ch XXXI, the definition of 'circumstances of aggravation' contained in s 319 mirrored the definition in Ch XXXIA, but was expanded to include the circumstances of threatening to kill the victim and to change the age of a child victim from 'under the age of 16 years' to 'of or over the age of 13 years and under the age of 16 years'.
6. Since the 1992 amendments there have been other amendments to s 325 and s 326,[97] as well as s 323 and s 324,[98] which are immaterial for present purposes.
7. When the appellant was charged[99] and sentenced, s 323, s 324, s 325 and s 326 were, relevantly, as follows:
   1. Indecent assault

A person who unlawfully and indecently assaults another person is guilty of a crime and liable to imprisonment for 5 years.

(1) A person who unlawfully and indecently assaults another person in circumstances of aggravation is guilty of a crime and is liable to imprisonment for 7 years.

Alternative offence: s. 321(4), 322(4) or 323.

(1) A person who sexually penetrates another person without the consent of that person is guilty of a crime and is liable to imprisonment for 14 years.

(1) A person who sexually penetrates another person without the consent of that person in circumstances of aggravation is guilty of a crime and liable to imprisonment for 20 years.

Alternative offence: s. 321(2) or (4), 322(2) or (4), 323, 324 or 325.

1. When the appellant was charged and sentenced, s 319 of the Code relevantly provided:
   1. Terms used

(1) In this Chapter -

circumstances of aggravation, without limiting the definition of that expression in section 221, includes circumstances in which -

(a) at or immediately before or immediately after the commission of the offence -

(i) the offender is armed with any dangerous or offensive weapon or instrument or pretends to be so armed; or

(ii) the offender is in company with another person or persons; or

(iii) the offender does bodily harm to any person; or

(iv) the offender does an act which is likely seriously and substantially to degrade or humiliate the victim; or

(v) the offender threatens to kill the victim;

or

(b) the victim is of or over the age of 13 years and under the age of 16 years;

...

to sexually penetrate means -

(a) to penetrate the vagina (which term includes the labia majora), the anus, or the urethra of any person with -

(i) any part of the body of another person; or

(ii) an object manipulated by another person,

except where the penetration is carried out for proper medical purposes; or

(b) to manipulate any part of the body of another person so as to cause penetration of the vagina (which term includes the labia majora), the anus, or the urethra of the offender by part of the other person's body; or

(c) to introduce any part of the penis of a person into the mouth of another person; or

(d) to engage in cunnilingus or fellatio; or

(e) to continue sexual penetration as defined in paragraph (a), (b), (c) or (d).

(a) consent means a consent freely and voluntarily given and, without in any way affecting the meaning attributable to those words, a consent is not freely and voluntarily given if it is obtained by force, threat, intimidation, deceit, or any fraudulent means;

(b) where an act would be an offence if done without the consent of a person, a failure by that person to offer physical resistance does not of itself constitute consent to the act;

(c) a child under the age of 13 years is incapable of consenting to an act which constitutes an offence against the child.

...

1. By operation of s 37 of the Interpretation Act 1984 (WA), an accused may be charged with offences against the Criminal Code (WA) which have been repealed since the commission of the offence. Subsection (1) relevantly provides:
   1. General savings on repeal

(1) Where a written law repeals an enactment, the repeal does not, unless the contrary intention appears -

...

(b) affect the previous operation of the enactment repealed or anything duly done or suffered under that enactment;

...

(d) affect any duty, obligation, liability, or burden of proof imposed, created, or incurred prior to the repeal;

(e) subject to section 11 of The Criminal Code and section 10 of the Sentencing Act 1995, affect any penalty or forfeiture incurred or liable to be incurred in respect of an offence committed against that enactment;

...

1. There is nothing in the 1986 Amendments or the 1992 Amendments, or any other written law, which evinces any contrary intention to the operation of s 37(1)(b), (d) or (e).
2. In this appeal, it is not disputed that the effect of s 37(1) is that, subject to the operation of s 11 of the Code and s 10 of the Sentencing Act, the appellant may be charged, convicted and sentenced for the offence of rape in accordance with the repealed s 325 and s 326 of the Code, and unlawful and indecent assault of a female in accordance with the repealed s 328 of the Code, notwithstanding their repeal.[100]

Section 11 of the Code and s 10 of the Sentencing Act

1. Section 11 of the Code and s 10 of the Sentencing Act are complementary provisions which, along with s 37(1) of the Interpretation Act, concern the effect of changes in the law between the commission of the alleged offence and when the offender is convicted and sentenced. Section 11 of the Code concerns criminal responsibility, while s 10 of the Sentencing Act concerns punishment. Logically, s 11 of the Code must be addressed first. Section 11 of the Code states:[101]

A person cannot be punished for doing or omitting to do an act, unless the act or omission constituted an offence under the law in force when it occurred, nor unless doing or omitting to do the act under the same circumstances would constitute an offence under the law in force at the time when he is charged with the offence.

1. The term 'offence' is defined in s 2 of the Code to be:

An act or omission which renders the person doing the act or making the omission liable to punishment[.]

1. The words 'act or omission' in s 2 are not confined to their singular form and an 'offence' may be constituted by multiple acts or omissions.[102] The word 'offence' is used in the Code to denote 'the element of conduct (an act or omission) which, if accompanied by prescribed circumstances, or if causing a prescribed result, or if engaged in with a prescribed state of mind, renders a person engaging in the conduct liable to punishment'.[103]
2. Section 11 of the Code specifies two conditions which must be fulfilled before a person can be punished for an act or omission. The first condition requires the act or omission in question to constitute an offence under the law in force when it occurred. The second condition requires that the doing of the act or the making of the omission under the same circumstances constitutes an offence under the law in force at the time the person is charged with the offence.
3. As Morrison JA pointed out in R v PAZ,[104] with respect to s 11(1) of the Criminal Code (Qld) which is in virtually identical terms to s 11 of the Code, there are two points in time at which the act (or omission) must have constituted an offence for a person to be punished. One is 'when it occurred' and the other is when the person 'is charged with the offence'.
4. For the reasons set out below, the parties were correct to accept that s 11 of the Code was engaged in this case.[105]
5. With respect to the repealed offence of rape, the act which constitutes this offence is the carnal knowledge, that is, the penile penetration of the woman or girl complainant's vagina in circumstances that the complainant was not his wife, and that the complainant did not consent (or, if she did consent, her consent was obtained by force etc). These acts, carried out in such circumstances, potentially constitute two offences which are currently in force and were in force at the time the appellant was charged, namely offences contrary to s 325 and s 326 of the Code, which carry statutory penalties of 14 years' imprisonment and 20 years' imprisonment, respectively. This is because these offences have in common the same act and circumstances as the repealed offence of rape. The difference between the two offences is that the offence in s 326 of aggravated sexual penetration without consent has an additional element, being that it is committed in 'circumstances of aggravation'.
6. With respect to the repealed offence of unlawfully and indecently assaulting a woman or girl, the act which constitutes that offence is that the accused assaulted (as defined in s 222 of the Code)[106] a woman or girl in circumstances that rendered the assault both unlawful and indecent. This offence carried a maximum penalty of 4 years' imprisonment. The acts and circumstances said to constitute the repealed s 328 offence potentially correspond with the acts that constitute the offence of indecent assault contrary to s 323 of the Code, which carries a maximum penalty of 5 years' imprisonment, and aggravated indecent assault contrary to s 324 of the Code, which carries a maximum penalty of 7 years' imprisonment. The difference between these current offences is that s 324 has the additional element that the unlawful and indecent assault was committed in 'circumstances of aggravation'. Both of these offences were in force at the time the appellant was charged.
7. We now turn to the question of whether s 10 of the Sentencing Act applies.
8. Section 10 of the Sentencing Act states:
   1. Change of statutory penalty, effect of

If the statutory penalty for an offence changes between the time when the offender committed it and the time when the offender is sentenced for it, the lesser statutory penalty applies for the purposes of sentencing the offender.

1. The word 'offence' is defined in s 4(1) of the Sentencing Act to mean 'an offence under a written law'. Plainly, any offence created by a written law conforms with this definition, including offences under the Code.
2. The parties accept that s 10 of the Sentencing Act has been engaged and that, with respect to the repealed offences of rape, the statutory penalty is no longer life imprisonment. However, the parties disagree as to what the statutory penalty for the repealed offence of rape was at the time that the appellant was sentenced. The appellant contends that, pursuant to s 10 of the Sentencing Act, the correct statutory penalty is 14 years' imprisonment, based on the statutory penalty for an offence contrary to the current s 325 of the Code. The respondent contends that the correct statutory penalty is 20 years' imprisonment, based on the statutory penalty for an offence contrary to the current s 326 of the Code.

1. As we have said, the parties accept that both s 11 of the Code and s 10 of the Sentencing Act were engaged. Each accepts that the appellant was to be punished for the offences of rape and the offence of unlawful and indecent assault of a woman or girl, notwithstanding their repeal. It was also accepted, in respect of the rape offences, that the appellant was no longer liable to the statutory penalty of life imprisonment. It was conceded by the respondent that the correct statutory penalty for the offence of unlawfully and indecently assaulting a woman or girl was, at the time that the appellant was sentenced, 4 years' imprisonment. For reasons which we express below, this concession should be accepted. Accordingly, it is only necessary to summarise counsel's submissions in respect of the correct statutory penalty for the repealed offence of rape.

1. Senior counsel for the appellant argued that the facts and circumstances of the repealed offence of rape were to be ascertained by reference to the elements of that offence. He submitted that the age of the complainant was not an element of the offence of rape, thus, its current equivalent was the offence of sexual penetration without consent contrary to s 325 of the Code, and not the offence of aggravated sexual penetration without consent contrary to s 326 of the Code. This is because the offence of aggravated sexual penetration without consent requires proof of an additional element to the offence of rape, being in this case the circumstance of aggravation of the victim's age.
2. Senior counsel for the appellant submitted that, as the statutory penalty for an offence contrary to the current s 325 of the Code carries a lesser penalty than the repealed offence of rape, by reason of s 10 of the Sentencing Act, the correct statutory penalty for the offences of rape committed by the appellant was 14 years' imprisonment and not the 20 years' imprisonment stated by the sentencing judge. Accordingly, his Honour erred in sentencing the appellant for the rape offences on the basis that the statutory penalty was 20 years' imprisonment. Senior counsel for the appellant submitted that this court should resentence the appellant in relation to the offences of rape and impose lesser sentences of imprisonment.
3. Senior counsel for the appellant contended that his submission that the equivalent of the repealed offence of rape is the current s 325 of the Code (and not the current s 326 of the Code) was supported by obiter statements made by Murray J in Melville.[107]

1. Counsel for the respondent observed that it was common ground between the parties, both before the sentencing judge and this court, that, as a matter of fact, each of the victims of the rape offences was under the age of 16 years. Counsel for the respondent submitted that the expression 'in the same circumstances' in s 11 of the Code should be read widely to take in all of the relevant factual circumstances of the offence, not just the elements. Counsel for the respondent submitted that the age of each of the victims is, in the present case, such a relevant circumstance. Accordingly, it was said, the appropriate current equivalent offence for the repealed offence of rape was, in the circumstances of this case, for the purposes of s 10 of the Sentencing Act, the offence of aggravated sexual penetration without consent contrary to s 326 of the Code which carries a statutory penalty of 20 years' imprisonment.
2. Counsel for the respondent contended that Murray J's statement in Melville was obiter and that this court should not adopt it.
3. Accordingly, it was submitted on behalf of the respondent that his Honour did not err in sentencing the appellant, on the basis that the statutory penalty for the rape offences was 20 years' imprisonment.

1. The parties were correct to accept that s 11 of the Code was engaged in this case.
2. The acts and circumstances which constitute the elements of the offence of rape, as that offence was under the law in force at the time it was committed, were:

(a) the appellant had carnal knowledge of a woman or girl, that is, the appellant penetrated the victim's vagina with his penis; and

(c) the act of carnal knowledge occurred without the victim's consent (or, if she did consent, her consent was obtained by force etc).

1. These same acts and circumstances would have constituted an offence of sexual penetration without consent (that is, free and voluntary consent) contrary to the s 325 of the Code, which was in force at the time the appellant was charged with the repealed offences of rape. Whether it also constituted an offence of aggravated sexual penetration without consent (that is, free and voluntary consent) contrary to s 326 of the Code, which was also in force at the time the appellant was charged with the rape offences, depends upon the meaning of the word 'circumstances' in the expression used in s 11 of the Code, 'unless doing ... the act under the same circumstances would constitute the offence'.
2. In our opinion, the word 'circumstances' in s 11 of the Code does not connote all of the factual circumstances in which the particular repealed offence under consideration was committed. Such a construction would be too broad and would ignore the contextual words 'would constitute an offence' which follow the word 'circumstances'. These contextual words, in our opinion, confine the word 'circumstances' to a factual element or elements of an offence. Thus, in respect of the offence of rape, the relevant act is the act of carnal knowledge of the victim and the 'circumstances' are the absence of consent and that the victim and the offender were not married. As the age of the victim was not a factual element of the offence of rape, it is not a relevant circumstance for the purposes of s 11 of the Code.
3. In our opinion, the acts and circumstances which constituted the offence of rape are the same acts and circumstances which constitute an offence of sexual penetration without consent contrary to the current s 325 of the Code.
4. Thus, in the present case, pursuant to s 11 of the Code, the relevant 'offence' under the law in force at the time the appellant was charged with the repealed offences of rape was the offence of sexual penetration without consent contrary to s 325 of the Code, and not the offence of aggravated sexual penetration without consent contrary to s 326 of the Code, because proof of an offence contrary to the s 326 of the Code requires proof of an additional factual element to the elements of the repealed offence of rape, being one or more of the statutory circumstances of aggravation.
5. Having dealt with the question of criminal responsibility, we now turn to the question of punishment, by considering the proper construction and application of s 10 of the Sentencing Act.
6. The construction and application of s 10 of the Sentencing Act presents little difficulty when Parliament amends the selfsame offence between the time of its commission and the time that an offender is sentenced. Where this occurs, the sentencing court proceeds on the basis that the applicable statutory sentence is whichever is the lesser.
7. However, does s 10 of the Sentencing Act apply where, as in the present case, an offender commits an offence which is subsequently repealed and replaced with a new offence which includes the elements of the repealed offence? In our view, it does, for the reasons set out below.
8. Crucial to answering this question is the meaning of the term 'an offence' in s 10 of the Sentencing Act. As we have already noted, the term 'offence' is defined in s 4(1) of the Sentencing Act to mean 'an offence under a written law'.
9. In Melville,[108] Anderson J (with whom Murray J agreed) stated that this definition is broad enough to mean conduct which is made punishable by a written law. We respectfully agree with this statement which, in our view, accords with the ordinary meaning in the criminal law of the word 'offence', being the factual ingredients or elements, proof of which attracts a criminal sanction.[109]
10. A narrow construction, which restricts the operation of s 10 of the Sentencing Act only to instances where Parliament amends the statutory penalty for the selfsame offence, should not be preferred. Such a construction would unfairly operate to deprive offenders who are convicted of a repealed offence, the elements of which are incorporated into a new offence, of any reduction that Parliament has seen fit to make in the statutory penalty for the new offence.
11. Thus, the correct application of s 10 of the Sentencing Act in this case requires an examination of the acts and circumstances which constituted the elements of the repealed offence of rape, and those which constitute the offence of sexual penetration without consent, contrary to the current s 325 of the Code.
12. Consistent with our earlier analysis in relation to s 11 of the Code, the repealed offence of rape and the current offence contrary to s 325 of the Code proscribe, relevantly, the same acts and circumstances and are constituted by the same legal elements. Section 10 of the Sentencing Act operates to make the statutory penalty for the offence of rape not life imprisonment, but, as the current s 325 provides, 14 years' imprisonment. Accordingly, his Honour erred by finding that the applicable statutory penalty for the offences of rape was 20 years' imprisonment. For these reasons, the error alleged in ground 3 has been made out.

1. Before proceeding to ground 4, we wish to address the parties' submissions concerning Melville. Questions bearing upon the construction of s 11 of the Code and s 10 of the Sentencing Act were discussed in Melville, but in a different context to the present case.
2. Melville was a reference, pursuant to s 49 of the District Court of Western Australia Act 1969 (WA), on a point of law. The accused was charged on an indictment presented on 2 October 2001 with a large number of sexual offences dating back to 1979. Of the 44 counts on the indictment, there were 16 counts of rape, all of which were alleged to have occurred before 1 January 1986. The report in Melville reveals only that there were two female complainants, and does not specify their ages other than a reference to one complainant being 'relevantly under the age of 13 years'.[110]
3. At the time the indictment was presented, the offence of rape had been repealed and the 1992 amendments were in effect, including the current s 325 and s 326 of the Code. The question raised by the reference was whether the District Court had jurisdiction to try the counts of rape, bearing in mind that, at the time, the jurisdiction of the District Court did not extend to trying an accused for any offence which carried the statutory penalty of life imprisonment.
4. In separate judgments, Murray J and Anderson J held that the District Court had jurisdiction to try the accused because, at the time the indictment was presented, the maximum penalty for the repealed offence of rape was no longer life imprisonment. McKechnie J dissented. He held that the District Court did not have jurisdiction because the maximum penalty for the repealed offence of rape remained as life imprisonment.
5. Anderson J expressed no difficulty in concluding that s 37(1) of the Interpretation Act operated so that a person could be charged with committing the offence of rape, despite the repeal of the offence, provided that it was committed prior to 1 April 1986.[111] His Honour held that s 11 of the Code was engaged because the conduct which constituted the offence of rape was also conduct which constituted an offence under Ch XXXI as it stood then (and as it stands today). Anderson J held that s 10 of the Sentencing Act applied so that the offender in that case was no longer liable to life imprisonment.[112] His Honour did not specify which offence in that chapter (whether s 325 or s 326 of the Code) constituted the repealed offence of rape and nor did he specify what the current statutory penalty for the offence of rape was. His Honour stated that the word 'offence', as defined in the Sentencing Act, was broad enough to mean 'conduct which is made punishable by a written law'.[113]
6. Murray J agreed with the reasoning of Anderson J, and found that both s 11 of the Code and s 10 of the Sentencing Act were engaged.
7. Specifically, Murray J said that he agreed with Anderson J that the word 'offence', as it appeared in s 10 of the Sentencing Act, 'is used in this context to mean an act or omission committed in circumstances which make it punishable as an offence'.[114] However, Murray J went further than Anderson J, and stated that, in his view, the statutory penalty for the repealed offence of rape was 14 years' imprisonment, having regard to the statutory penalty for the offence of sexual penetration without consent, contrary to the current s 325 of the Code, and not the offence of aggravated sexual penetration without consent, contrary to the current s 326 of the Code. His Honour's reasoning was as follows:[115]

I note that Anderson J expresses the view that the maximum penalty will be that 'determined by reference to the maximum sentence that may be imposed under the provisions of the Criminal Code as it now stands for the proven conduct'. I respectfully agree and should add that I have come to the conclusion that the maximum penalty is 14 years imprisonment because the offence of sexual penetration committed in circumstances of aggravation is a different offence, as defined, from that of sexual penetration without consent simpliciter: see the Code, s 596. It is the latter offence which, in its elements, equates with the offence formerly described as rape. However, having made those observations it is necessary to say that a statement about what is in law the maximum penalty for the offence now, forms no part of the answer to the question posed to this Court.

1. It is immediately noted that his Honour's view as to the actual statutory penalty for the offence of rape formed no part of the answer to the question posed in the reference and is thus obiter dictum.
2. McKechnie J dissented. His Honour rejected as 'a false premise' the proposition that the repealed offence of rape 'metamorphosed' to be equated with the current offence of sexual penetration without consent because, although the underlying concept of each offence was the same, the elements of the two offences were different.[116]
3. McKechnie J concluded that the operation of s 10 of the Sentencing Act 'is limited to cases where the actual penalty for the precise offence is amended'. His Honour said that it had no application to cases where the penalty for another offence, albeit with common elements, is amended.[117]
4. While the State in its written submissions in this court suggested that there was much to commend McKechnie J's approach, it expressly stated that this court should not overrule the majority's decision in Melville as to jurisdiction.[118] Senior counsel for the appellant, in his oral submissions, correctly accepted that the ratio of the case was only that the District Court had jurisdiction to try persons charged with the repealed offence of rape and not whether the appropriate statutory penalty for that offence was now 14 years' imprisonment or 20 years' imprisonment.
5. The majority in Melville made no definitive statement as to the correct statutory penalty for the repealed offence of rape. However, as we have noted, the construction of the word 'offence' in s 10 of the Sentencing Act adopted by Anderson J, with whom Murray J agreed, is the construction that we would adopt.

1. As mentioned, the respondent concedes that ground 4 has been made out. The concession should be accepted.
2. The learned sentencing judge sentenced the appellant on the basis that the statutory penalty for count 22 was 5 years' imprisonment.
3. By reason of s 37(1) of the Interpretation Act, read with s 11 of the Code, the appellant was properly charged with and convicted of unlawfully and indecently assaulting a woman or girl, contrary to the repealed offence in s 328 of the Code, the statutory penalty for which was 4 years' imprisonment. The elements of this offence are reflected in the current s 323 of the Code which carries the statutory penalty of 5 years' imprisonment. However, by reason of s 10 of the Sentencing Act, the appellant remains liable to the statutory penalty for the offence he committed of 4 years' imprisonment, being the lesser penalty between it and the statutory penalty set out in the current s 323 of the Code. Thus, his Honour erred in stating that the maximum penalty for count 22 was 5 years' imprisonment. Ground 4 has been made out.

Are the errors as to statutory maximum penalties material?

1. An express error that does not affect, or is incapable of affecting, the sentence imposed is not a material error and does not enliven this court's jurisdiction to resentence an offender.[119]
2. Because of the significance which usually attaches to the statutory penalty in the exercise of the sentencing discretion, a significant error in relation to that maximum penalty will usually be material to the exercise of the sentencing discretion and will vitiate the exercise of that discretion.[120] However, there have been cases where an error as to the maximum penalty will not be material: see, for example, Harding and Samardali.[121]
3. In the present case, the magnitude of the difference between the maximum penalty that the sentencing judge applied for the rape offences (20 years' imprisonment) and the correct maximum penalty (14 years' imprisonment) is significant and was at least capable of affecting the sentence actually imposed by the sentencing judge. Accordingly, in respect of the sentences imposed for the rape offences, the error identified in ground 3 was material and this court's jurisdiction to resentence the appellant in respect of all of the offences that he committed is enlivened, including count 22, which is the subject of ground 4. It is therefore unnecessary for us to decide whether, had ground 4 stood alone, we would have found that his Honour's error was material.

1. As this court's jurisdiction to resentence the appellant has been enlivened by reason of ground 3 being made out, it is unnecessary to decide ground 1, which alleges an infringement of both limbs of the totality principle. It is unnecessary to grant leave to appeal on this ground.

1. This court has all of the materials necessary to resentence the appellant.
2. The correct maximum penalties for the offences committed by the appellant were as follows:
   • for rape - 14 years' imprisonment;
   • for indecent dealing with a child under the age of 14 years or inciting a child under the age of 14 years to indecently deal - 7 years' imprisonment;
   • for indecently assaulting a male - 3 years' imprisonment; and
   • for indecently assaulting a woman or girl - 4 years' imprisonment.
3. The primary sentencing considerations for offences of the kind committed by the appellant are punishment of the offender and specific and general deterrence, having regard to the need to protect vulnerable children.[122]
4. We will not repeat the facts and circumstances of each of the offences committed by the appellant. It is self‑evident from that summary that each and every one of the offences committed by the appellant was a serious example of its kind. Each victim was a young child who was extremely vulnerable. Each was a ward of the State and had been placed at Warminda because there was no one else who was able to care for and protect them. The appellant, well knowing their vulnerability, took advantage of each victim by sexually abusing them for his own gratification and without any thought as to the consequences for the victims of his actions. The offences were cruel and carried out mercilessly. Each offence was manipulative, often violent, and always humiliating. Although the appellant was not employed at Warminda, he took on the role as carer for the children and, in this sense, his offending involved a breach of trust. It appears that the appellant thought that he could offend with impunity and did so.
5. The offending has had a devastating effect upon each of the victims. They have had to live with the psychological effects for many years and will continue to do so in the future.
6. The appellant did not have available to him the mitigation that pleas of guilty, genuine remorse, youth and cooperation with the police would have brought. The only mitigating factors of any significant weight were the appellant's poor health and his age. As to the appellant's ill health, he has a mild form of dementia as a result of the onset of Alzheimer's disease, and a reduced life expectancy. As to his age, at 70 years old, we do not regard this factor, standing alone, as having anything more than a modest effect. However, we accept, as his Honour did, that by reason of the appellant's poor health and age, personal deterrence is not a matter of significance and that imprisonment will be harder for him compared to other prisoners.[123] General deterrence remains an important sentencing consideration. It is not uncommon for offending in an institutional setting to remain secret for a long time. Often, offenders get on with their lives without adverse consequences. However, for victims, as in this case, the story is altogether different. Those who offend in this way must realise that this wrongdoing can lead to long terms of imprisonment even when they are old or infirm.[124]
7. The appellant's ill health is only one factor to be considered in sentencing the appellant. The mitigatory weight that can be given to ill health depends on all of the facts and circumstances of the particular case. A relevant consideration is whether the appellant's conditions can be treated effectively in prison. In the present case, there is nothing to indicate that the appellant's various conditions, including his early onset Alzheimer's disease, cannot be treated effectively in prison.
8. Beyond the appellant's ill health and age and its consequences, there is very little else that can be said in his favour. He is not remorseful for what he has done. He appears to have no empathy towards his victims and no insight into the consequences of his offending for them. The fact that the appellant has no prior record of offending and has not offended since he left Warminda carries only modest weight, having regard to the extremely serious nature of the offending. Further, because of the need to provide general deterrence with the aim of protecting vulnerable children, matters personal to the appellant are of less mitigatory weight than might otherwise be the case.[125]
9. There is no tariff for offences of the kind committed by the appellant. With respect to an unaggravated single offence of penile penetration of the vagina, where the offender is convicted after trial, a term of imprisonment of 5 to 6 years is not unusual.[126] However, sentences well beyond this range may be justified by the circumstances of the case.
10. The objective criminality involved in each of the rape offences was very serious. The offending which constituted counts 34 ‑ 37 was particularly bad. Not only was the victim very young (12 years old), but the appellant committed the offences all the while aware that there were juveniles present and watching, those juveniles being known to and living with the victim at Warminda. The offending was exceedingly humiliating and degrading. Moreover, it appears that this offending was intended to corrupt the juveniles who saw what the appellant did.
11. We do not overlook that, in many instances, the offending was part of ongoing sexual behaviour towards the victim.
12. The only appropriate sentence in respect of each of the offences committed by the appellant is a term of immediate imprisonment. We have had regard to all of the relevant circumstances, including the maximum penalty for each offence (as stated in [155] above) and the aggravating and mitigating circumstances, in our opinion the individual sentences that should be imposed are the same as those imposed at first instance, being as follows:
    • Count 3 - 15 months' imprisonment
    • Count 4 - 15 months' imprisonment
    • Count 7 - 18 months' imprisonment
    • Count 8 - 2 years' imprisonment
    • Count 9 - 7 years' imprisonment
    • Count 10 - 2 years' imprisonment
    • Count 11 - 7 years' imprisonment
    • Count 12 - 4 years' imprisonment
    • Count 13 - 7 years' imprisonment
    • Count 14 - 18 months' imprisonment
    • Count 15 - 18 months' imprisonment
    • Count 16 - 18 months' imprisonment
    • Count 20 - 18 months' imprisonment
    • Count 21 - 2 years' imprisonment
    • Count 22 - 2 years 6 months' imprisonment
    • Count 24 - 2 years' imprisonment
    • Count 27 - 6 years' imprisonment
    • Count 28 - 15 months' imprisonment
    • Count 29 - 2 years' imprisonment
    • Count 30 - 2 years' imprisonment
    • Count 31 - 2 years' imprisonment
    • Count 32 - 2 years' imprisonment
    • Count 33 - 15 months' imprisonment
    • Count 34 - 20 months' imprisonment
    • Count 35 - 20 months' imprisonment
    • Count 36 - 3 years' imprisonment
    • Count 37 - 7 years' imprisonment
    • Count 38 - 3 years' imprisonment
    • Count 39 - 7 years' imprisonment
    • Count 43 - 22 months' imprisonment
13. We now turn to consider questions of concurrency, cumulacy and totality. In considering totality, we have regard to the principles referred to in Roffey v The State of Western Australia, in which McLure JA (with whom Steytler P & Miller JA agreed) said:[127]

The practical effect of the totality principle is ordinarily to arrive at an aggregate sentence that is less than that which would be arrived at by simply adding up all the terms appropriate for the individual offences: R v Holder [1983] 3 NSWLR 245, 260 (Street CJ). A rationale for the totality principle is that there is assumed rehabilitation and reduced demand for retribution after the initial sentences have been served. Where the principle of totality comes into effect, it is of little importance how the ultimate aggregate is made up: R v Holder (260).

1. We have borne in mind that both limbs of the totality principle must be taken into account.
2. There were 30 offences committed against eight extremely vulnerable victims over a period of approximately five years. There is no tariff for offending of this nature and there are no truly comparable cases. It is difficult to overstate the objective seriousness of the appellant's overall offending. At the hearing of the appeal, senior counsel for the appellant did not disagree with the words 'shocking' and 'atrocious' when used to describe what the appellant did.[128] We have had regard to the mitigating circumstances, particularly the appellant's ill health. We accept that the appellant is now in poor health and that, by reason of his various health conditions, his life expectancy is reduced. We acknowledge that there is a real possibility that the appellant will die in prison or, upon release, may have a limited life expectancy which may be of poor quality. The second limb of the totality principle may be invoked where an offender's life expectancy is limited, the rationale being that each year of a sentence represents a substantial proportion of the period of life which is left to the offender. The concept underpinning the rationale is essentially mercy: see Van Zyl.[129] However, the offences may be so objectively serious that such humanitarian considerations cannot be accommodated.[130] In other words, the offending may be so serious that a crushing sentence must be imposed: see R v E, AD.[131] In our opinion, the present case is one of this kind. The offending was so serious and so prolific over a lengthy period of time that the appellant's poor health cannot justify this court's intervention on the basis of the second limb of the totality principle. We have concluded that a total effective sentence of 18 years' imprisonment appropriately reflects the appellant's overall criminality involved in all of the circumstances, viewed in their entirety. We would achieve this result by ordering that the sentences on counts 9, 21, 29 and 37 be served cumulatively, and all of the other sentences be served concurrently with the sentence on count 37. The appellant is eligible for parole and the new total effective sentence is to be taken to have taken effect on 21 April 2018.

(4) The sentences imposed by Herron DCJ on 8 June 2018 are set aside.

The sentences on counts 9, 21, 29 and 37 are to be served cumulatively, and all of the other sentences shall be served concurrently with the sentence on count 37. For the avoidance of doubt, the total effective sentence is 18 years' imprisonment. The appellant is eligible for parole and the new total effective sentence is to be taken to have taken effect on 21 April 2018.

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

Research Associate to the Honourable Justice Murphy and the Honourable Justice Mazza

[90] Kabambi v The State of Western Australia [2019] WASCA 44 [21].

[91] Ground 4 originally alleged that his Honour erred in considering that the maximum penalty for count 21 was 5 years' imprisonment, but this claim was abandoned at the hearing of the appeal: appeal ts 2.

[92] Respondent's answer, par 36; AB 43.

[93] Respondent's answer, par 41; AB 44.

[94] Indictment dated 24 April 2019; AB 55 - 61.

[95] The age of the victims at the time of the alleged commission of the offence was (appeal ts 10): count 9 ‑ 11 years; count 11 - 11 years; count 13 - 11 years; count 27 - 15 years; count 37 - 12 years; count 39 - 12 years.

[96] R v Lines [1844] EngR 333; (1844) 1 Car & Kir 393; (1844) 174 ER 861, 862; R v Melville [2003] WASCA 124; (2003) 27 WAR 224.

[97] See Criminal Law Amendment (Simple Offences) Act 2004 (WA) which came into operation on 31 May 2005 to insert alternative offences at the foot of the provisions and Criminal Law Amendment (Home Burglary and Other Offences) Act 2015 (WA) which came into operation on 31 October 2015 to include provisions relating to the offences being committed in the course of an aggravated home burglary.

[98] Section 323 and s 324 were amended by the Criminal Law Amendment Act 1996 (WA) which came into operation on 10 October 1996 to include a summary conviction penalty for these offences. These summary conviction penalties were increased by the Criminal Law Amendment (Simple Offences) Act 2004 (WA) which came into operation on 31 May 2005. Section 324 was amended by the Criminal Law Amendment (Home Burglary and Other Offences) Act 2015 (WA) which came into operation on 31 October 2015 to insert provisions relating to the offence being committed in the course of an aggravated home burglary.

[99] He was charged by police sometime in 2016. The indictment was presented on or about 24 April 2018.

[101] Section 11 of the Code was amended in 1995 to delete what was s 11(2). Subsection (2) in substance reflected what is now s 10 of the Sentencing Act.

[102] See Birdsall v The State of Western Australia [2019] WASCA 79; (2019) 54 WAR 418 [118].

[103] R v Barlow [1997] HCA 19; (1997) 188 CLR 1, 9; Birdsall [122].

[104] R v PAZ [2017] QCA 263; [2018] 3 Qd R 50 [112].

[106] An assault is defined in s 222 of the Code as:

A person who strikes, touches, or moves, or otherwise applies force of any kind to the person of another, either directly or indirectly, without his consent, or with his consent if the consent is obtained by fraud, or who by any bodily act or gesture attempts or threatens to apply force of any kind to the person of another without his consent, under such circumstances that the person making the attempt or threat has actually or apparently a present ability to effect his purpose, is said to assault that other person, and the act is called an assault.

The term applies force includes the case of applying heat, light, electrical force, gas, odour, or any other substance or thing whatever if applied in such a degree as to cause injury or personal discomfort.

[109] Kingswell v The Queen [1985] HCA 72; (1985) 159 CLR 264, 292 (Brennan J).

[118] Respondent's submissions par 26; AB 39 - 40.

[119] Fernandes v The State of Western Australia [2009] WASCA 227 [9] - [10].

[120] Harding v The State of Western Australia [2015] WASCA 27 [43] (Martin CJ), [76] (Mazza JA).

[121] Samardali v The Queen [2018] WASCA 220.

[122] ERA v The State of Western Australia [2013] WASCA 163 [91].

[124] Van Zyl v The State of Western Australia [2017] WASCA 1 [28].

[125] The State of Western Australia v Shephard [2018] WASCA 140 [41].

[126] Thong v The State of Western Australia [2020] WASCA 182 [221].

[127] Roffey v The State of Western Australia [2007] WASCA 246 [26].

[131] R v E, AD (2005) 93 SASR 20; [2005] SASC 332 [38].