Criminal law - Application for leave to appeal against sentence - Three counts of sexual penetration without consent - Conviction after trial - Alleged express error - Whether the sentencing judge failed to consider the conditions in which the appellant was incarcerated - The appellant was assaulted on two occasions in custody - Alleged implied error - Manifest excess - Individual sentences of 1 year's imprisonment, 5 years' imprisonment and 5 years' imprisonment - First limb of totality principle - Total effective sentence of 6 years' imprisonment

Sentencing Act 1995 (WA), s 76(1), s 81(1)

C v The State of Western Australia [2006] WASCA 261

LAT v The State of Western Australia [2018] WASCA 215

The State of Western Australia v Akizuki [2008] WASCA 267; (2008) 192 A Crim R 373

The State of Western Australia v Richards [2008] WASCA 134; (2008) 37 WAR 229

Warburton v The State of Western Australia [2009] WASCA 113; (2009) 196 A Crim R 361

1. This is an application for leave to appeal against sentence.
2. The appellant was charged on indictment in the District Court with three offences of sexual penetration without consent, contrary to s 325 of the Criminal Code (WA) (the Code). All of the offences were alleged to have occurred at the appellant's home on or about 8 March 2015. The alleged victim in each count was a woman whom we will refer to in these reasons as M.
3. Count 1 alleged that the appellant sexually penetrated M without her consent by engaging in cunnilingus. Count 2 alleged that the appellant sexually penetrated M without her consent by penetrating her vagina with his penis. Count 3 alleged that the appellant sexually penetrated M without her consent by again penetrating her vagina with his penis.
4. On 10 August 2017, after a trial before Gething DCJ and a jury, the appellant was found guilty and duly convicted of all three counts on the indictment.[1]
5. On 12 January 2018, the appellant was sentenced to 1 year's immediate imprisonment on count 1 and 5 years' immediate imprisonment on each of counts 2 and 3. His Honour ordered that the sentences on counts 1 and 2 be served cumulatively and that the sentence on count 3 be served concurrently with the sentence on count 2. Thus, the total effective sentence imposed upon the appellant was 6 years' imprisonment with eligibility for parole, backdated to commence on 10 August 2017.[2]
6. The appellant is self-represented. With all due respect, his proposed grounds of appeal and his written and oral submissions were difficult to understand. He makes a number of complaints. As we apprehend it, his complaints are, in substance:
   1. The learned sentencing judge failed to take into account the conditions in which the appellant was incarcerated on remand and, in particular, that he was assaulted on two occasions while he was in custody on remand awaiting sentence.[3]
   2. The individual sentences were manifestly excessive both as to type and length.[4]
   3. The total effective sentence infringed the first limb of the totality principle.[5]
7. For the reasons that follow, we are of the view that leave to appeal should be refused and the appeal dismissed.

1. The victim, M, was in Australia on a working holiday visa. At the material time she was 24 years old. M's visa required her to undertake work in a rural area. At the time of the offences, M was working in the winery owned by the appellant and his wife, who provided her with board and food.[6]
2. The appellant was born in July 1960 and was, at the time of the offences, 54 years of age.[7]
3. About a week before the events the subject of the charges in the indictment, Mr Anthony Park came to work at the appellant's business. He too was on a working holiday visa.[8]
4. By 8 March 2015, M had been working for the appellant for a few weeks and regarded him as a good employer.[9]
5. On the evening of 8 March 2015, M, Mr Park and the appellant had dinner together. The appellant's wife had gone away for the night. The three of them had a barbecue on the verandah and shared a bottle of wine. After the first bottle of wine was finished, the appellant produced a second. At around 10.00 pm, while the second bottle of wine was being consumed, Mr Park went to bed. M and the appellant remained at the table.[10]
6. After Mr Park went to bed, the appellant's attitude towards M changed. He began speaking to her in a way which made her feel uncomfortable. M tried to steer the conversation in a different direction by reminding the appellant that he was a married man.[11]
7. At some point, the appellant moved to hold M's hand. She stood up from her chair in order to stop him. After this, M has little recollection of what occurred. In her evidence, she described her memory as being in pictures.[12]
8. As to count 1, M recalled lying on her bed with the appellant licking her vagina. At the time, he was kneeling on the floor between her legs. M's dress was around her waist and the appellant had removed her underwear. At the time, M was not capable of freely or voluntarily consenting to this act of sexual penetration due to her intoxication.[13]
9. As to count 2, the appellant got on top of M and penetrated her vagina with his penis, causing her pain. She had not before engaged in sexual intercourse. She physically resisted this act of penetration by twisting her body and kicking the appellant. She cried and said, 'No, no, no.' The appellant responded by saying, 'Shh'. His Honour found that, to the extent that M was conscious during this act, she voiced her lack of consent. To the extent that she was unconscious, M was incapable of freely or voluntarily consenting to the act of sexual penetration.[14]
10. Mr Park, whose room was immediately adjacent to M's, heard M crying. He thought she was homesick and went back to sleep. He checked the time and saw that it was 11.50 pm.[15]
11. M recalled the appellant once again licking her vagina. This act was not the subject of any charge.[16]
12. As to count 3, the appellant again penetrated M's vagina with his penis, which again caused her to feel pain. As had occurred earlier, M physically resisted the appellant and screamed, 'No'. While being sexually penetrated by the appellant, she vomited.[17]
13. His Honour found that, to the extent that M was conscious she voiced her lack of consent, and to the extent that she was unconscious, M was incapable of freely or voluntarily consenting to the act of sexual penetration.[18]
14. On this occasion, M screamed out to Mr Park for help. Mr Park heard M's screams and his name being called. He checked the time and as he recalled it, saw that it was around 2.00 to 3.00 am. He got up and went to M's room. There he saw the appellant lying next to M with his underpants around his thighs. M was lying on her back, crying, with her face covered by her hands. Her dress was around her waist and her underwear was on the floor.[19]
15. The following morning, M texted a friend, complaining that she had been sexually assaulted by her boss. Later that day, she complained to police and was then taken to Royal Perth Hospital and the Sexual Assault Resource Centre, where she was examined.[20]
16. It is clear from his Honour's sentencing remarks that both the appellant and M were affected by alcohol. His Honour expressly made no finding, one way or the other, as to whether the appellant deliberately plied M with alcohol to take advantage of her.[21] His Honour said that the appellant's intoxicated state was not a mitigating factor.[22]

1. The appellant was 57 years old when he was sentenced. He was born in Western Australia. He came from what he described to the author of the pre-sentence report as a close and mutually supportive family. He has been married twice and has two adult children and grandchildren.[23]
2. After leaving school he studied and worked overseas. He returned to Australia where he worked on his own account as an engineering consultant, including in a number of major building projects. Approximately nine years before he was sentenced, he became a director and manager of the business referred to earlier in these reasons.[24]
3. At about the time of the commission of the offences, the appellant was under stress as a result of the demands of his business, unresolved grief and the tragic death of one of his brothers, the anniversary of his father's death and the recent death of his cherished dog.[25]
4. The appellant's court history comprises only traffic convictions.[26]

1. The sentencing judge was provided with a pre-sentence report, a psychological report written by Ms Tanina Oliveri, a clinical and forensic psychologist, and a psychiatric report written by Dr Peter Wynn Owen.
2. Ms Oliveri reported that the appellant continued to claim innocence, asserting that M was awake and consenting. He told her that he had been sexually aroused by M soon after she began working at the property.[27]
3. Ms Oliveri noted that the appellant experienced chronic depression for which he was being medicated at the time of the offending. In her opinion, factors which were relevant to the offending and contributed to his behaviour included:[28]
   • interpersonal and relationship problems
   • unmet sexual and emotional intimacy needs
   • a sexual attraction to the victim
   • increased sexual arousal
   • a desire for sexual gratification and emotional connection
   • possible feelings of entitlement
   • being alone with the victim and abusing his position of authority
   • self-defeating attitudes and behaviours
   • chronic depression
   • alcohol misuse and the use of alcohol as a negative coping mechanism
   • lowered inhibitions due to alcohol
   • poor emotional regulation and coping skills
   • poor judgment
   • poor impulse control
   • a lacking of consequential thinking
4. In Ms Oliveri's opinion, the appellant was a low risk of reoffending in a sexual manner.[29]
5. The appellant expressed to Ms Oliveri a belief that he may have autism spectrum disorder, but, in her opinion, there was no evidence to support the existence of such a disorder.[30]
6. When Dr Wynn Owen interviewed the appellant, he, at one point, said, 'I licked her without consent,' but later in the interview, the appellant said that all the sexual contact he had with M was consensual.[31]
7. Dr Wynn Owen noted a probable history of major depressive disorder and that, at the time of the offences, the appellant was using alcohol to manage acute and chronic stressors in his life. Like Ms Oliveri, Dr Wynn Owen saw no evidence to suggest the appellant suffered from autism spectrum disorder. Dr Wynn Owen noted that, on the night of the offences, the appellant consumed a very large quantity of alcohol and was aware that the victim was heavily intoxicated. In this light, Dr Wynn Owen said that his behaviour may be seen as taking advantage of vulnerability and somewhat predatory.[32] He continued:[33]

His intoxication probably reduced his ability to manage his arousal and sexual drive and possibly led to misinterpretation of social signals and these factors may go some way to explaining the apparently predatory and exploitative nature of the offences.

1. It is unnecessary to refer to the victim impact statement in detail. It is clear that M has suffered considerable psychological trauma since the offences and will continue to do so in the future. She feels 'painful' in the company of middle-aged men. She has been unable to tell her family and friends what happened to her and she rues the loss of her virginity as a result of the offending.[34]

1. In his sentencing remarks, his Honour found the following aggravating factors:[35]
   1. M was vulnerable because she was a young woman from a foreign country with limited English staying at an isolated rural property. Moreover, she was physically smaller than the appellant and was intoxicated, to the point of being unconscious. His Honour described M as 'an easy target' who was unable to defend herself.
   2. The offending occurred over 'a sustained period'. His Honour found that the only reasonable inference from the evidence of Mr Park and other evidence was that the offending occurred 'over at least a two-hour period and involved three distinctive acts of sexual penetration'.
   3. The offending caused injury to M's vagina. In this regard, his Honour referred to evidence adduced at trial from the doctor who had medically examined M, to the effect that M had sustained a 0.5 cm by 0.2 cm superficial laceration in the 6 o'clock position of the posterior fourchette. His Honour found that that injury was caused by the acts of penile penetration.
   4. The appellant did not use a condom when he sexually penetrated M, thus exposing her to the risk of pregnancy and sexually transmitted disease.
2. The sentencing judge characterised the appellant as having deliberately and opportunistically taken advantage of M's extreme intoxication in order to sexually assault her.[36]
3. The sentencing judge took into account in mitigation the appellant's prior good character and that he would be serving a term of imprisonment for the first time. His Honour acknowledged the favourable references which had been tendered in support of the appellant. He also noted that the appellant had the continuing support of his family and that he had been a positive influence on other family members in the past. He accepted that the appellant's behaviour was out of character.[37]
4. With respect to remorse, his Honour said that the evidence before him on this subject was mixed. His Honour was, however, prepared to find that the appellant was 'beginning to show some genuine remorse for [his] offending'.[38]
5. His Honour referred to information that he had received from the appellant's lawyer, to the effect that the appellant had been twice attacked while in custody on remand awaiting sentence, once while in isolation.[39] We will say more about this later in these reasons.
6. The sentencing judge concluded that the seriousness of the offending was such that only terms of immediate imprisonment were justified. His Honour expressly referred to the totality principle. In order to accommodate considerations of totality, his Honour adjusted the sentence on count 1 by reducing it from 4 years' imprisonment to 1 year imprisonment. However, to reflect the appellant's total criminality, he ordered that sentence to be served cumulatively with the sentence imposed on count 2. His Honour pointed out that, as the total effective sentence to be imposed was in excess of 5 years' imprisonment, it was not possible, having regard to the relevant provisions in the Sentencing Act, to impose a suspended term of imprisonment.[40]

Did his Honour fail to take into account the conditions of the appellant's incarceration?

1. The appellant alleges that the sentencing judge failed to take into account, as a mitigating factor, the conditions the appellant had been held in while in custody on remand awaiting sentence, in particular, that he had been assaulted on two occasions by inmates and held in isolation once. There is no merit to this complaint. His Honour plainly had regard to it, to the extent that he was properly able to do so.
2. In the course of the sentencing remarks, his Honour said:[41]

In sentencing you I am able to take into account features of the offence reviewed personally which will result in imprisonment bearing down more severely on you than the average prisoner.

However, the unfortunate reality is that violence in the prison system is an issue faced by many prisoners. So the fact that you've been a victim of attacks in prison does not of itself mean that prison will bear down on you more severely than the average prisoner.

Nonetheless, I am prepared to give weight to your prior good character and inherent in that being the fact that you are a first time prisoner. So I've taken into account these mitigating factors which I have identified and will reduce the sentence I would have otherwise imposed on you, on the basis of those matters.

1. His Honour's approach to the issue of the appellant being the subject of attack was essentially correct. It is the duty of those in charge of prisons to ensure that prisoners are kept safe and are protected, insofar as possible, from assault by other prisoners. There was no evidence before the sentencing judge that the appellant would be required to serve the sentence imposed by his Honour in conditions which were materially more restrictive when compared to the mainstream prison population, or that he was at any greater risk of assault than the ordinary mainstream prisoner. The evidence was insufficient to permit his Honour to come to a conclusion that the appellant would serve the custodial part of his sentence in more severe conditions than would otherwise be the usual experience.
2. Nevertheless, his Honour expressly took into account that the appellant would be serving a term of imprisonment for the first time. His Honour did so on the basis that the appellant, who had not previously been sentenced to a term of imprisonment, would find the experience more daunting than someone who had previously been imprisoned.
3. In his written and oral submissions to this court, the appellant mentioned that he had been assaulted since he was sentenced. There was no evidence before this court as to the circumstances of that assault. In any event, subject to certain exceptions which do not apply to this case, it would not be appropriate for this court to intervene on the basis of events which have occurred since the sentence was passed: see LAT v The State of Western Australia.[42]

1. The orthodox approach to determine whether an individual sentence is manifestly excessive is to examine the sentence from the perspective of the maximum sentence prescribed by law for the crime, the standards of sentencing customarily observed with respect to the crime, the place that the criminal conduct occupies in the scale of seriousness of crimes of that type and the offender's personal circumstances.
2. The maximum penalty prescribed by law for an offence contrary to s 325 of the Criminal Code is 14 years' imprisonment.
3. It is well established that there is no tariff for the offence of sexual penetration without consent. Nor is there any 'hierarchy of sexual penetration'.[43] Nevertheless, in most cases, penile penetration is usually more serious than cunnilingus.
4. In The State of Western Australia v Akizuki,[44] Steytler P observed that an average starting point for an unaggravated single offence of penile sexual penetration without consent is around 4 years and 8 months' imprisonment (under the transitional regime) before taking into account factors in mitigation. However, his Honour also noted that the range of potentially aggravating features is so huge that features of that kind can dramatically increase the sentence imposed or have little or no effect. The range of potential mitigating factors is at least equally extensive. They might result in a very large reduction in sentence or little or no reduction.
5. In The State of Western Australia v Richards,[45] Steytler P observed that an unaggravated single offence of sexual penetration without consent, where there was no plea of guilty or other exceptional circumstances, could be expected to result in a term of around 5 to 6 years' imprisonment.
6. In Warburton v The State of Western Australia,[46] Wheeler JA said that a common range of sentences for unaggravated offences of sexual penetration without consent, without taking into account any particular mitigating or aggravating offences, was around 4 to 6 years' imprisonment (under the transitional regime).
7. It may immediately be seen that the individual sentences that were imposed on the appellant (bearing in mind that, but for totality, the appellant would have received a sentence of 4 years' imprisonment for count 1) were within the range of sentences to be customarily imposed as outlined in the above cases. While this alone does not mean that the sentences were not manifestly excessive, it is a factor that points to that conclusion.
8. We will not repeat the facts of the offending. Self-evidently, each offence was serious. The appellant took advantage of M's vulnerability and her intoxication. The offences were committed over a prolonged period. Insofar as M was able to express her lack of consent, she did so, both verbally and physically. The appellant nevertheless persisted. His actions caused physical pain and injuries. While those injuries have healed, M has been left with the psychological and emotional scars of the appellant's actions. It is clear from the victim impact statement that M has suffered, and will continue to suffer in the future, a substantial degree of psychological distress because of what the appellant did to her.
9. There were mitigating factors in the appellant's favour, including his prior good character, family support and low risk of reoffending. Nevertheless, each offence committed by the appellant was serious and required the imposition of a term of immediate imprisonment. Contrary to the appellant's submission, no sentence short of immediate imprisonment was appropriate in all of the circumstances of this case. Had the sentencing judge imposed a non-custodial sentence or a suspended term of imprisonment of any type, as the appellant now suggests his Honour should have, his Honour would have fallen into serious error.
10. In our opinion, the individual sentences that were imposed were not manifestly excessive as to type or length. They were not unreasonable or plainly unjust. Each sentence represented an appropriate exercise of his Honour's sentencing discretion.

Did the total effective sentence infringe the first limb of the totality principle?

1. The first limb of the totality principle requires that the total effective sentence imposed on an offender who has committed multiple offences bear a proper relationship to the overall criminality for all of the offences, viewed in their entirety, having regard to all relevant facts and circumstances, including those referable to the appellant 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.
2. In our opinion, some accumulation of the sentences imposed by his Honour was appropriate, having regard to the separate acts of sexual penetration committed against M and the prolonged nature of the separate acts. A total effective sentence of 6 years' imprisonment represented a proper relationship to the appellant's overall criminality and paid due regard to other relevant circumstances, including those referable to the appellant personally. The total effective sentence was not unreasonable or plainly unjust.
3. As we have explained, a suspended term of imprisonment was wholly inappropriate. In addition, it is pertinent to observe, as his Honour did in the sentencing remarks, that the Sentencing Act 1995 (WA) provides that a suspended term of imprisonment cannot be imposed unless the aggregate term of imprisonment is 60 months or less: s 76(1) and s 81(1) of the Sentencing Act. Thus, once his Honour concluded that an appropriate total effective sentence was 6 years' imprisonment, his Honour was statutorily precluded from imposing a suspended term of imprisonment of any kind.

1. In the course of the appellant's written submissions and in his oral submissions, the appellant made criticisms of the prison system generally, and of the way that he and others were being treated. For example, in his oral submissions, he complained that he had not been provided with an Individual Management Plan; that the prison in which he was being held was understaffed and under-resourced and that there should be a 'faith-based unit' there. These are not matters which this court can investigate or remedy.

1. None of the complaints made by the appellant have any reasonable prospect of succeeding. Leave to appeal should be refused and the appeal dismissed.
2. The orders that we would make are:
   1. Leave to appeal is refused.
   2. The appeal is dismissed.

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

[3] Appellant's submissions, pars 4 - 10; appeal ts 30 - 32.

[5] Appellant's submissions, par 30; appeal ts 35 - 36.

[23] ts 664; pre-sentence report, page 3.

[24] ts 664; pre-sentence report, page 3; psychological report, page 3.

[27] Psychological report, pages 6 - 7.

[31] Pre-sentence psychiatric report, page 3.

[32] Pre-sentence psychiatric report, pages 6 - 8.

[33] Pre-sentence psychiatric report, page 8.

[42] LAT v The State of Western Australia [2018] WASCA 215 [39] - [44].

[43] C v The State of Western Australia [2006] WASCA 261 [35].

[44] The State of Western Australia v Akizuki [2008] WASCA 267; (2008) 192 A Crim R 373 [68].

[45] The State of Western Australia v Richards [2008] WASCA 134; (2008) 37 WAR 229 [49].

[46] Warburton v The State of Western Australia [2009] WASCA 113; (2009) 196 A Crim R 361 [11].