Dao v The Queen, unreported; CCA SCt of WA; Library No 990015; 22 January 1999

Sentencing Act 1995 (WA) s 88

Sentences varied to achieve aggregate period of 10 years

Dao v The Queen, unreported; CCA SCt of WA; Library No 990015; 22 January 1999

Gallegos v The Queen [1999] WASCA 191

King v The Queen [1999] WASCA 9

R v Postma, unreported; CCA SCt of WA; Library No 8383; 25 July 1990

R v Ruane (1979) 1 A Crim R 284

R v Shaw (1989) 39 A Crim R 343

1 KENNEDY J: I have had the advantage of reading in draft the reasons to be published by Murray J. I am in agreement with those reasons and with the orders his Honour proposes.

2 PIDGEON J: The facts are set out in the reasons of Murray J.

3 I am in no way persuaded that the learned sentencing Judge was in any way in error in imposing a total effective sentence of 14 years for crimes as serious as those committed by the applicant. His Honour imposed the sentences following a trial of two of the offences when the facts relating to each of the offences would have been before his Honour. In particular, his Honour would have heard evidence as to the circumstances in which the offences were committed, and would have seen and heard the complainant.

4 The complainant yielded under the threat of a knife and an offence of sexual penetration without consent in these circumstances is of the utmost seriousness. Following this he stabbed her with a knife a number of times. One of the stabs was into a vital area, causing a serious wound to the liver, and it was found that the stabbing was done with an intent to cause grievous bodily harm. The complainant has been left with permanent scaring in more than one area.

5 It was made clear in Jarvis v R (1998) 20 WAR 201 that the totality of a sentence must be proportionate to the totality of the criminal behaviour. The learned sentencing Judge was very conscious of this by reaching the conclusion that the totality of the criminal behaviour required a sentence of 14 years imprisonment. This was a judgment open to him on the evidence he heard. His Honour, in making this assessment, ensured that he did not offend the totality principle. I would refuse leave.

6 MURRAY J: After a trial by jury in this Court, the applicant was convicted of three offences, all committed upon the one victim, his former girlfriend. The offences were all committed at the same time. They are as follows -

(1) Unlawful detention, contrary to the Criminal Code, s 333. To this offence the applicant pleaded guilty at the commencement of the trial. The offence is punishable by 10 years imprisonment. The applicant was sentenced to 4 years imprisonment.

(2) Aggravated sexual assault in that the applicant was armed with a knife, contrary to the Criminal Code, s 326. This

offence is punishable by 20 years imprisonment and the applicant was sentenced to 6 years imprisonment to be served concurrently with the sentence imposed for the unlawful detention.

(3) Unlawful wounding with intent to do grievous bodily harm, contrary to the Criminal Code, s 294(1). This offence was charged in the alternative to an offence of attempted murder of which the applicant was acquitted. The offence of unlawful wounding with intent is punishable by 20 years imprisonment and the applicant was sentenced to 8 years imprisonment to be served cumulatively.

The aggregate term of imprisonment imposed was therefore one of 14 years with eligibility for parole. The sentences, imposed on 23 October 1998, were backdated to 7 November 1997, the date upon which the applicant was taken into custody and since which time he had remained in custody on remand.

7 The application for leave to appeal is brought upon one ground which contends that the aggregate term of imprisonment infringes the totality principle. That contention is particularised by the assertion that the learned sentencing Judge placed too much emphasis on the need for personal deterrence and gave insufficient emphasis to mitigatory circumstances, particularly the applicant's good antecedents (including his lack of previous convictions), his plea of guilty to the offence of unlawful detention, and the background history which gave rise to the commission of the offences. It is submitted that in particular the sentence imposed for the offence of unlawful wounding with intent should not have been ordered to be served cumulatively upon the other sentences imposed "given that each of the convictions arose out of the same incident and occurred contemporaneously."

8 It is convenient to state the relevant history of the relationship between the applicant and the victim and the circumstances concerning the commission of the offences by referring to the findings made by the learned trial Judge as contained in his Honour's sentencing remarks addressed to the applicant.

"At or about the end of the year 1995 you began going out with the complainant. The relationship lasted for about 2 years. During the latter part of 1997 when she was 21 years old, the complainant was becoming more independent. In turn, you became more possessive. Difficulties developed between you.

At the end of October 1997 after she had tried to several times to break off the relationship the complainant told you that she did not want to have anything more to do with you, but you wanted the relationship to continue. On the night of Thursday, 6 November 1997 you drove in your motor car to the house in East Victoria Park where the complainant was living.

You saw her drive away from the house and you followed her. Eventually you drove your car alongside hers as it went along, forcing her to stop. You persuaded her to go back to where she lived and to talk to you there.

After returning to the house, each in your own car, you and the young woman had a conversation on the verandah at the front. After some hesitation she allowed you inside and you talked there. By then it was after 9 o'clock. You were not alone in the house to start with. In another room were two young men, one of whom was the complainant's cousin who shared the house with her. They went at about 10 o'clock, leaving you and the complainant alone.

Within a matter of minutes the complainant noticed that you had something in your back pocket. She thought it was a knife, but she was not sure and she asked you about it. It was a knife. You told the court that you used it for fishing and that you kept it in your car. You said that you had taken it with you in order to threaten the complainant with it. When you realised that the complainant had seen the knife, you pulled it out, grabbed her by the front of her shirt, held the knife against her and told her that if she screamed, you would stab her in the stomach.

Then you made her walk with you into her bedroom. Having locked the door and turned off the light, you told her to take off her clothes. It seems that she took off her outer clothes, but left her underwear on. You took off your own clothes and then, having put the knife down on the floor beside the bed, you removed the rest of her clothing and had sexual intercourse with her. After that each of you put on a dressing-gown or some such covering and went to the back of the house where you sat down, she on a chair in the backyard and you on the back doorstep with your knife on the floor nearby.

While you were momentarily distracted, the complainant got the knife. She ran to the front of the house and threw the knife outside. You followed her and grabbed her. She began screaming. You put your hand over her mouth in an attempt to stop her from screaming. Then you picked up the knife, pushed her to the ground and began to stab her. You stabbed her first in the chest and then in the back and legs. She held up her right arm to defend herself and you stabbed her there as well.

Meanwhile neighbours had heard the complainant's screams and one or more of them came out of their houses to see what was happening. You ran off. Police officers arrived shortly afterwards and the complainant was taken to Royal Perth Hospital by ambulance. Within a short time police officers located you at the home of one of your friends. You told them that you had stabbed the complainant, but added that you did not mean to, that it just happened.

At Royal Perth Hospital it was discovered that the complainant had nine wounds, eight of which had not penetrated the subcutaneous tissue, but the other wound was serious. The knife pierced the right lobe of the complainant's liver about 16 centimetres from where it had entered her chest. Fortunately the bleeding had stopped of its own accord and the wounds soon healed.

In her victim impact statement dated 6 July 1998 the complainant has said that the scarring from the damage to her muscle tissue still causes her pain if she does lots of exercise or running, that one of the wounds to her right arm has left her with some numbness and pain and that she is self-conscious because of the scarring. She has said also that during your attack on her she believed that you were going to kill her. Now she lives in fear of your returning and killing her or members of her family.

In the letter which your counsel handed to me just a few minutes ago you have expressed your sorrow for what has happened. You have acknowledged that it was a terrible mistake. You have said among other things in the course of your letter that you know that the complainant is saying that she is scared of you and you have said that when you get out of prison, you don't want to have anything to do with her. You know that she is hurt and so are you. You say in your letter that you think it's best that you don't see each other at all, adding that you just want to get on with your life and look after your daughter and your family. I'm sure that the complainant and her relatives hope that that is true.

Presently it seems the complainant has fits of depression, sleeplessness, moodiness, irritability and inability to concentrate. She says that she is unable to trust anyone and is very withdrawn. It seems that she suffers from panic attacks and from post-traumatic stress disorder. Clearly the episode has affected her profoundly. Among other things, her social and private life have been badly disrupted, perhaps permanently. Such consequences must be expected in the case of a young woman who has been the subject of the sort of treatment which the complainant received at your hands."

9 There is no suggestion that in that account his Honour overlooked any matter of substance. He expressed his view that the circumstances of the commission of the offences were grave and that the applicant behaved with great brutality towards the young woman concerned, motivated by his own selfish desires and refusing to accept that she wished to have nothing more to do with him. His Honour went on to say that the applicant was now 30 years old with no relevant previous convictions, there being no previous conviction of any criminal offence, but only traffic offences. The applicant, his Honour said, was to be regarded as being of good character other than in respect of the commission of the offences before the court. It had been reported to him, his Honour commented, that while in custody on remand the applicant had exhibited good qualities and undergone training and educational programmes, which his Honour thought provided a basis to hope that the applicant would be a responsible citizen and not a dangerous person when he returned to the community. As I have said, an order of eligibility for parole was made.

10 It is not argued that taken individually the sentences imposed for the offences committed were outside the appropriate range and in my respectful opinion his Honour's view of the offences was entirely justified. They were clearly offences of the utmost seriousness and they have had grave consequences for the victim. The applicant's favourable antecedents have limited mitigatory power in those circumstances.

11 Further, whilst it was appropriate, in my opinion, to allow the sentences for the unlawful detention and the aggravated sexual assault to run concurrently, because the detention was for the purpose of effecting the assault, that criminal activity had ceased when the third offence, the unlawful wounding with intent to do grievous bodily harm, was committed. In those circumstances, according to the application of the ordinary principles, which I think I need not discuss in these reasons, it was proper to regard the unlawful wounding with intent as a quite separate transaction or event arising out of, but not a part of, the commission of the earlier offences. It would ordinarily be appropriate, therefore, subject only to the application of the totality principle, to sentence cumulatively for the offence of unlawful wounding with intent, and that offence itself was one of particular seriousness well meriting the sentence imposed.

12 The totality principle was discussed at length by this Court in Jarvis v The Queen (1993) 20 WAR 201. The principle describes that last look which must be taken at the sentencing process when a number of sentences are to be imposed at the same time or a sentence is, or sentences are, to be imposed which will have to be served at the same time as, or consecutively upon, a term of imprisonment already imposed. The purpose of the check is to ensure that the total term to which the offender is to be subject is properly proportionate to the totality of the criminal behaviour. That may require a reduction of the total term imposed, although the individual sentences going to make it up are entirely proper in themselves and the orders for cumulation or concurrence are proper. As Ipp J explained in Jarvis at 207, "...the reason for such a reduction is that the severity of a term of imprisonment increases exponentially as it increases in length."

13 The only other observation which needs to be made is that, consistently with sentencing principle, if a reduction is required to be made upon totality grounds in a case where there are a number of sentences imposed at the same time, the court will prefer to sacrifice an order for cumulative service, at least in part, if it may thereby achieve a proportionate total term without sacrificing the proper length of the individual sentences.

14 The respondent placed some reliance upon the case of R v Ogilvie, unreported; CCA SCt of WA; Library No 960643; 8 November 1996. That was a case which involved the commission of offences of burglary, unlawful detention, doing grievous bodily harm with intent to do grievous bodily harm and aggravated sexual assault. The case was similar to this only in that the complainant had been violently attacked in her own home. She had been caused serious harm, not only physical harm, but severe psychological damage. The offender in that case had a bad record, but he pleaded guilty at the first opportunity and utilised the process of expedited committal. There was reason in his case to make an order of eligibility for parole. The offender in that case had been sentenced to a term of 6 years imprisonment, effectively 6-1/2 years. Having regard to the fact that it was a Crown appeal against sentence and the double jeopardy effect which such an appeal entails, and having regard to the totality principle, this Court resentenced the applicant by substituting sentences providing a total term of 9-1/2 years imprisonment, effectively 10 years. The case was more serious than this, bad as this case is, but the fact that Ogilvie was a Crown appeal in my opinion limits its utility as a guide to how the court should approach this application.

15 In my opinion, however, this appeal should succeed, although solely on the totality ground. I have reached that conclusion despite my clear perception of the awful nature of the offences committed and my recognition of the harm done to the complainant by their commission; the physical harm, but particularly the psychological and emotional injury she has suffered. Severe punishment was required for personal deterrence and particularly for the deterrence of others. It must be made clear to people in this community that the courts will not tolerate attacks on people where there is a domestic background or a background of personal relationship. The courts will punish severely those who commit offences in such circumstances.

16 But as the law requires, a proper sense of proportion will be preserved. The applicant had good antecedents. He had not been to prison before, he had no history of crimes of violence and other than by the commission of these offences, he was a respectable member of the community. He was remorseful and the fact that he had pleaded not guilty and been put to his trial did not, in the circumstances, deny that proposition.

17 In my opinion a total term of 10 years imprisonment was sufficient by way of punishment and to discharge the sentencing obligations of the court. The imposition of such a term would therefore properly reflect the application of the totality principle.

18 In allowing the appeal to achieve that total term, it is not necessary in my view that any of the individual sentences should be altered, but, to a degree, the order for cumulative service of the sentence of 8 years imprisonment for the unlawful wounding with intent to do grievous bodily harm must be sacrificed. This is a case, in my opinion, where the power to make an order that that term be served partly cumulatively upon the sentence of 6 years imprisonment imposed for the aggravated sexual assault, which is provided in the Sentencing Act 1995 (WA), s 88(3)(d), may be utilised.

19 Having regard to s 88(4), that is a limited power. Under that subsection:

"...the court must specify the period of the other fixed term that is to be served before the partly cumulative term is to be begin; but that period must not extend beyond the earliest date on which the offender could be released (whether on parole or not) in relation to the other fixed term."

For a sentence of 6 years imprisonment with eligibility for parole, that is a period of one third of the term or 2 years: s 93(1)(a).

20 I would therefore grant the application for leave to appeal and allow the appeal. I would set aside the order that the sentence of 8 years imprisonment is to be served cumulatively upon the concurrent sentences previously imposed. I would substitute the order that the sentence of 8 years imprisonment imposed for the offence of unlawful wounding with intent to do grievous bodily harm is to be served partly cumulatively, after service of 2 years of the sentence of 6 years imprisonment imposed for the offence of aggravated sexual assault. The aggregate term achieved thereby is a period of 10 years, to date from 7 November 1997.