File Number : IND 1128 of 2003 & IND 1251 of 2003

Criminal law and procedure - Leave to appeal against sentence - One transaction rule - Totality - Turns on own facts

Sentencing Legislation Amendment and Repeal Act 2003 (WA)

Bosworth v The Queen [2004] WASCA 43

Jarvis v The Queen (1993) 20 WAR 201

Johnson v The Queen [2004] HCA 15

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

Mill v The Queen (1988) 166 CLR 59

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

R v Chilvers [2003] WASCA 87

R v Faithfull [2004] WASCA 39

R v Peterson [1984] WAR 329

R v White [2002] WASCA 112

Ruane v R (1979) 1 A Crim R 284

Woods v The Queen (1994) 14 WAR 341

"D" v The Queen [2003] WASCA 33

House v The King [1936] HCA 40; (1936) 55 CLR 499

1 MURRAY J: I agree with McLure J that, for the reasons given by her Honour, to which I have nothing to add, leave to appeal should be granted and the appeal allowed.

2 I too would vary the order for cumulative service of the terms imposed to one of partial cumulacy, constructed as her Honour proposes. The term of 5 years 4 months should commence after service of 1 year 4 months of the sentence of 2 years 8 months, service of which is backdated to 12 September 2003: Sentencing Act 1995 (WA), s 88(3)(d) and s 88(4). The order of eligibility for parole would, of course, remain.

3 MCLURE J: On 12 September 2003 the applicant was convicted on his plea of guilty of two counts of having a sexual relationship with a child under the age of 16. The counts related to separate complainants. On 24 September 2003 he was sentenced to 5 years and 4 months imprisonment on the first count, and 2 years and 8 months imprisonment on the second count, to be served cumulatively. The applicant was made eligible for parole.

4 The applicant contends in his grounds of appeal that the trial Judge erred in failing to make the sentences concurrent or partially concurrent and that the sentence imposed was manifestly excessive.

5 The complainant on the first count is the applicant's step-daughter. The offending began when the complainant was 10 years old and the applicant was 34 years old. The sexual relationship occurred in the period 10 February 1998 to 16 December 2002. The applicant had sexual intercourse with the complainant on regular occasions. The applicant impregnated the complainant when she was 13 years old. The pregnancy was terminated. The applicant's sexual activity with the complainant continued after the applicant had separated from the complainant's mother.

6 The sexual relationship the subject of the second count occurred in the seven month period between 1 November 1998 and 1 May 1999. The complainant was 15 years old at the time. Initially, the complainant slept over a number of times at the applicant's house. Some time later, the applicant moved in with the second complainant's mother for what turned out to be a two month stay. The sexual activity between the applicant and the complainant included fondling each other, masturbation and digital penetration by the applicant and oral sex.

7 After his stepdaughter's mother learned of the relationship the subject of count 1, the applicant made a confession to police in relation to the conduct the subject of both counts.

8 The applicant made a fast track plea of guilty to both counts. On the first count, the sentencing Judge had a starting point of 12 years' imprisonment which he reduced to 8 years "for his early plea of guilty on the fast track system" and further reduced by one third to 5 years and 4 months in accordance with the transitional provisions in the Sentencing Legislation Amendment and Repeal Act 2003 (WA).

9 On the second count, the sentencing Judge had a starting point of 6 years imprisonment which he reduced to 4 years "to allow for the offender's plea of guilty" and further reduced by one third to 2 years and 8 months. The sentencing Judge continued:

"There is absolutely no reason why the terms imposed on the two separate indictments, for the two separate complainants should not be cumulative in full, and they are made cumulative. The net result is ... a term of 8 years imprisonment ... ".

10 At the hearing, the applicant's counsel made an oral submission in passing that the term of imprisonment on count 2 was excessive. The submission was not developed and does not form part of the grounds of appeal. It is unnecessary to deal with it.

11 The question whether to make sentences for more than one offence cumulative or concurrent arises at two of the three stages in the sentencing process for multiple offences. In the ordinary course of sentencing for multiple offences, the sentencing court will firstly determine the appropriate sentence for each offence, secondly assess whether the sentences should be made concurrent or cumulative in accordance with established principle and finally review the total sentence to be imposed by reference to the principle of totality including the question whether the total sentence is crushing.

12 At the second stage, the relevant principle is what is variously described as the "one transaction" or "continuing episode" rule. It is a general rule, or what has been described as a good working rule (Ruane v R (1979) 1 A Crim R 284) that when a number of offences arise out of the one transaction or continuing episode, any terms of imprisonment for the offences are to be made concurrent. However, a sentencing Judge must proceed to the third stage and consider whether the application of that general rule would result in an appropriate measure of the total criminality involved in the conduct: R v White [2002] WASCA 112; R v Faithfull [2004] WASCA 39. If not, then the appropriate result should be achieved, if practicable, by making the sentences wholly or partially cumulative rather than by adjusting the otherwise appropriate sentence: Mill v The Queen (1988) 166 CLR 59 at 63.

13 I understand the first ground to raise the question as to whether the one transaction principle applies on the facts of this case. Issues of totality are best considered in the context of the second ground of appeal.

14 If a series of offences are very closely connected in nature, time and circumstance, they are more likely to be characterised as a part of one transaction or episode of offending. However, offences against different complainants over different time frames cannot properly be characterised as falling within the general rule. Accordingly, the prima facie position is that the sentences should be made cumulative.

15 The totality principle requires a Judge who is sentencing an offender for a number of offences to ensure that the aggregation of the sentences appropriate for each offence is a just and appropriate measure of the total criminality involved: Postiglione v The Queen [1997] HCA 26; (1997) 189 CLR 295 at 307 - 308 per McHugh J.

16 In assessing whether the aggregate of all the sentences is appropriate for the criminal conduct being punished, the aggregate may be seen to be inappropriately long even if the total sentence cannot be described as "crushing": Jarvis v The Queen (1993) 20 WAR 201 at 216 per Anderson J; Johnson v The Queen [2004] HCA 15 at [22].

17 The applicant contended that in reviewing the aggregate of the sentences in accordance with the totality principle the sentencing Judge should have taken into account the applicant's voluntary attendance at the police station to confess both offences (without knowledge as to whether they had been reported), the applicant's acknowledgement of the seriousness and consequences of his actions, his full acceptance of responsibility and the "unlikelihood of re-offending". The sentencing Judge referred to all of these matters in his sentencing remarks. He noted that the applicant exhibited remorse as demonstrated by him presenting himself to police to confess and his fast track pleas of guilty. He also referred to a specialist report from the Offenders Programmes Branch of

the Department of Justice which refers to the applicant as being assessed as presenting a medium to low risk of re-offending and to a privately obtained psychological report noting the applicant's acceptance of responsibility for his actions. It is not suggested the sentencing Judge did not have regard to these factors in determining the individual sentences to be imposed. The applicant submits that these factors also justify a reduction in the aggregate sentence on the basis of totality.

18 Offences of a sexual nature upon young children by an adult within a family environment involve a very significant abuse of trust. Offences involving sexual abuse of children are very serious and the dominant sentencing considerations are general and personal deterrence and the protection of the victims. Mitigatory factors have a diminished weight: Woods v The Queen (1994) 14 WAR 341 at 346.

19 The question for this Court is whether, measured against the application of the totality principle, it can be seen that the sentencing Judge erred in the exercise of his sentencing discretion by imposing a sentence that was too long. I am satisfied that an aggregate sentence of 8 years is more than is fairly necessary to achieve all of the recognized sentencing objectives, including punishment, retribution and deterrence. I have reached that conclusion having regard primarily to the tangible manifestations and benefits of the applicant's remorseful conduct in taking the initiative to confess his conduct to police and making a fast track plea of guilty. All relevant sentencing objectives can be achieved by making the sentences partially cumulative. I would grant leave to appeal and order that 16 months of the term imposed for count 2 be served before the term of 5 years and 4 months for count 1 begins. On that basis the applicant would serve a total period of 6 years and 8 months. He would remain eligible for parole.

20 JENKINS J: I have had the opportunity to read the draft reasons for the decision of McLure J. It is unnecessary to repeat the factual background which is set out in her Honour's reasons.

21 I agree with her Honour's reasons and her decision that the sentencing Judge did not err when he determined that the sentences for the two offences should be served cumulatively upon each other at what her Honour has called the second stage of the sentencing process for multiple offences. This is the stage at which the sentencing Judge determines whether the sentences arise out of the one transaction so that the sentences should properly be made concurrent or whether the offences disclose distinct conduct which should attract separate and cumulative punishment. These offences were patently in the latter category. They involved

different complainants, offended against in different ways and on separate occasions.

22 Further, I agree with her Honour's enunciation of the legal principles relating to what her Honour calls the third stage of the sentencing process for multiple offences. This is the stage at which the sentencing Judge looks at the resulting term to ensure that cumulative sentences would not result in a sentence that was inappropriately long having regard to the offender's criminal conduct viewed as a whole.

23 However, I am unable to agree with her Honour's conclusion that the aggregate sentence of 8 years imposed on the applicant is disproportionately long.

24 The question for me is whether the sentencing Judge was in error in acting on a wrong principle or in misunderstanding or in wrongly assessing some salient feature of the evidence. I must also consider whether the sentence is, relevantly, so excessive as to manifest such error. The issue is not whether I would have exercised the sentencing discretion in a different manner from the manner in which the sentencing Judge exercised his discretion: Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665 at [15]; R v Peterson [1984] WAR 329 at 330 per Burt CJ.

25 In my opinion it has not been shown that the very experienced sentencing Judge acted on a wrong principle or misunderstood or wrongly assessed some feature of the evidence. Although the sentencing Judge did not give detailed reasons for his decision to make the sentences cumulative, he had previously referred to the matters that were most pertinent to the sentencing process. There is nothing to indicate that he did not take these matters into account prior to concluding that "there is absolutely no reason why the terms imposed on the two separate indictments, for the two separate complainants should not be made cumulative in full".

26 Whilst I agree with McLure J that there is a three stage process for sentencing offenders for multiple offenders, a sentencing Judge is not to be regarded as having fallen into error because he or she did not separately articulate the second and third stages in their reasons for sentence. I do not believe that the sentencing Judge in this case merely did the arithmetic and passed the sentence which the arithmetic produced. This being a method that has been criticised by the High Court in Mill v The Queen (1988) 166 CLR 59 at 63. He had taken into account all relevant matters and determined that an aggregate sentence of 8 years was appropriate.

27 Further, even accepting that the respondent voluntarily confessed these crimes to the police, the aggregate sentence cannot be described as manifestly excessive having regard to sentences imposed in similar matters, which involve multiple complainants and multiple unlawful acts over a significant period of time, and the principles justifying those sentences: Woods v The Queen (1994) 14 WAR 341 at 352 - 359 per Anderson J; R v Chilvers [2003] WASCA 87 at [25] - [26] per McKechnie J and Bosworth v The Queen [2004] WASCA 43.

28 For these reasons I would dismiss the application for leave to appeal.

• Whether Error to Make Sentences Cumulative
• Totality/Manifest Excess