File No : IND 1786 of 2014, IND 1787 of 2014

Criminal law - Appeal against sentence - Appellant pleaded guilty to 10 counts of child sex abuse - Appellant also pleaded guilty to four counts of offending against the child's mother being unlawful detention, threatening to unlawfully kill, sexual penetration without consent, and unlawful wounding with intent to do grievous bodily harm - Whether the sentencing judge made an express error in relation to the discount he allowed for the pleas of guilty - Manifest excess - Totality

Criminal Code (WA), s 294(1) s 326, s 329(2), s 329(4), s 329(9), s 329(10), s 333, s 338B(a)

Sentencing Act 1995 (WA), s 9AA

Sentencing judge's orders for concurrency and cumulacy set aside in part

Abraham v The State of Western Australia [2014] WASCA 151

Ackley v The State of Western Australia [2013] WASCA 199

ARK v The State of Western Australia [2014] WASCA 45

CJF v The State of Western Australia [2012] WASCA 69

Downie v The State of Western Australia [2013] WASCA 244

GHK v The State of Western Australia [2014] WASCA 19

Giglia v The State of Western Australia [2010] WASCA 9

GMS v The State of Western Australia [2009] WASCA 107

Jarvis v The Queen (1993) 20 WAR 201

Juma v The State of Western Australia [2011] WASCA 54

LFG v The State of Western Australia [2015] WASCA 88; (2015) 48 WAR 178

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

M v The State of Western Australia [2006] WASCA 256

MPD v The State of Western Australia [2008] WASCA 57

PP v The State of Western Australia [2004] WASCA 144

RFS v The State of Western Australia [2012] WASCA 58

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

Rogers v The Queen [2004] WASCA 147

Rowan v The State of Western Australia [2009] WASCA 185

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

The State of Western Australia v FJG [2012] WASCA 206

The State of Western Australia v PJW [2015] WASCA 113

The State of Western Australia v Prince [2011] WASCA 22

The State of Western Australia v Turaga [2006] WASCA 199

THG v The State of Western Australia [2012] WASCA 139

Truscott v The State of Western Australia [2007] WASCA 62

Vilai v The Queen [1999] WASCA 275

Woods v The Queen (1994) 14 WAR 341

3 On 2 June 2015, the appellant was convicted, on his pleas of guilty in the District Court before Fenbury DCJ, of 10 counts in indictment 1786 of 2014 (the first indictment) and four counts in indictment 1787 of 2014 (the second indictment).

4 The victim in relation to the first indictment was a girl, M, and the victim in relation to the second indictment was her mother, H.

5 Counts 1, 2, 3 and 4 in the first indictment alleged that on a date unknown between 31 December 2009 and 1 January 2012, at a Western Australian country town, the appellant sexually penetrated M, a child who he then knew to be his de facto child, by penetrating:

and that M was a child under the age of 16 years, contrary to s 329(2) read with s 329(9)(a) of the Criminal Code (WA) (the Code).

6 Count 5 in the first indictment alleged that, on or about the same date and at the same place as in count 1, the appellant indecently dealt with M, a child who he then knew to be his de facto child, by touching her vagina with his hand, and that M was a child under the age of 16 years, contrary to s 329(4) read with s 329(10)(a) of the Code.

7 Count 6 in the first indictment alleged that on a date unknown between 31 December 2009 and 1 January 2012, at a Western Australian country town, the appellant sexually penetrated M, a child who he then knew to be his de facto child, by penetrating her vagina with his penis, and that M was a child under the age of 16 years, contrary to s 329(2) read with s 329(9)(a) of the Code.

8 Counts 7, 8, 9 and 10 in the first indictment alleged that on a date unknown between 31 December 2010 and 1 January 2013, at a Western Australian country town, the appellant sexually penetrated M, a child who he then knew to be his de facto child, by penetrating:

and that M was a child under the age of 16 years, contrary to s 329(2) read with s 329(9)(a) of the Code.

9 Counts 1, 2, 3 and 4 in the second indictment alleged that on 14 October 2014, at a Western Australian country town:

(a) the appellant unlawfully detained H, contrary to s 333 of the Code (count 1);

(b) the appellant made a threat to unlawfully kill H, contrary to s 338B(a) of the Code (count 2);

(c) the appellant sexually penetrated H without her consent, by penetrating her vagina with his penis, and that the appellant was armed with a dangerous weapon (namely, a knife) and that the appellant was in a family and domestic relationship with H, contrary to s 326 of the Code (count 3); and

(d) the appellant, with intent to do grievous bodily harm to H, unlawfully wounded H, contrary to s 294(1) of the Code (count 4).

11 The sentencing judge imposed individual sentences of immediate imprisonment in relation to the first indictment as follows:

(a) count 1 (digital/vaginal penetration): 2 years;

(b) count 2 (digital/vaginal penetration): 2 years;

(g) count 7 (digital/vaginal penetration): 2 years;

(i) count 9 (penile/oral penetration): 4 years; and

(j) count 10 (penile/vaginal penetration): 6 years.

12 His Honour imposed individual sentences of immediate imprisonment in relation to the second indictment as follows:

(c) count 3 (aggravated sexual penetration, penile/vaginal, without consent): 8 years; and

(d) count 4 (unlawful wounding with intent to do grievous bodily harm): 5 years.

13 The sentencing judge ordered that the sentence of 6 years' imprisonment for count 8 in the first indictment be served cumulatively on the sentence of 6 years' imprisonment for count 3 in the first indictment. The total effective sentence in relation to the first indictment was therefore 12 years' imprisonment.

14 His Honour ordered that the individual sentences of imprisonment for the counts in the second indictment be served concurrently with each other. The total effective sentence in relation to the second indictment was therefore 8 years' imprisonment.

15 The sentencing judge ordered that the total effective sentences be served cumulatively. The overall total effective sentence was therefore 20 years' imprisonment. A parole eligibility order was made and the overall total effective sentence was backdated to 1 November 2014.

The facts and circumstances of the offending

16 M was born in 1999. The appellant commenced a de facto relationship with her mother, H, when M was 1 or 2 years old. The appellant assumed the role of M's father. He was the only father she had known.

17 The charged acts in the first indictment were representative of a course of conduct.

18 The first episode of offending charged in the first indictment comprised counts 1 to 6. Those offences were committed during a weekend in 2010 or 2011 when the family was living on a farm near a Western Australian country town. The relevant facts include:

(a) M was aged 11 or 12. The appellant was aged between 42 and 44.

(b) The appellant was caring for M during the weekend while other family members were away. He told M to put on some lingerie he had given her and to go into the lounge room and lie on a mattress.

(c) The appellant removed M's underwear, rolled her onto her back and moved her legs apart. He penetrated her vagina with his finger, moving it in and out (count 1).

(d) The appellant then removed the rest of M's clothing and his own clothing, and put his fingers inside her vagina (count 2).

(e) The appellant proceeded to position himself between M's legs and inserted his penis into her vagina. M began wriggling to try and escape. The appellant slapped her face with the palm of his hand (count 3).

(f) The appellant then positioned his penis near M's mouth and told her to suck it. M complied and put his penis into her mouth. The appellant held her head while this was happening. He then masturbated and ejaculated onto M's face (count 4).

(g) The appellant told M to have a shower and then return and sleep with him on the mattress in the lounge room.

(h) During the night M awoke to find the appellant with his hand down her pants, touching her vagina (count 5).

(i) The following night the appellant entered M's bedroom, took off her pyjamas, put his penis into her vagina and had sexual intercourse with her (count 6).

19 The second episode of offending charged in the first indictment comprised counts 7 to 10. Those offences occurred about a year after the first episode, in 2011 or 2012, when M was about 12 or 13. The relevant facts include:

(a) The appellant told M to go to his bedroom. He had set up a video camera in the bedroom. The appellant told M to remove her clothes, except for her top, and lie on the bed in front of the camera. He turned the camera on. The appellant left the room and M began to cry. When the appellant returned he told M to stop whinging.

(b) The appellant put his fingers into M's vagina (count 7). She began to cry again and he told her to stop crying or she would know about it.

(c) The appellant got onto his knees and put his penis inside M's vagina and had sexual intercourse with her (count 8).

(d) The appellant moved M so that she was on her knees and told her to suck his penis. She did as he demanded (count 9).

(e) The appellant removed his penis from M's mouth and had sexual intercourse with her (count 10).

(f) Over the course of about two hours the appellant continued to sexually abuse M in front of the video camera, repeating the acts he had previously committed. He ejaculated onto her stomach.

20 The appellant threatened M that he would harm her if she told anyone about the sexual abuse. He also told her that he would harm her mother and her family. After disclosing the abuse, M was fearful that the appellant would harm her, her mother or her family.

21 On 14 October 2014, when the counts in the second indictment were committed, H and the appellant had been in a family or domestic relationship for about 13 years. H separated from the appellant upon becoming aware of his sexual abuse against her daughter. When the offences the subject of the second indictment occurred they had been separated for about six months. The appellant committed the offences on an occasion when he and H met to discuss their financial circumstances and to sign documents relating to their finances.

22 The duration of the appellant's offending against H was about 12 hours, from 11.00 am to after 11.00 pm. It ceased only when H jumped from a moving motor vehicle being driven by the appellant.

23 The deprivation of liberty charge (count 1) was a continuing offence. It began at the house which H and the appellant had previously shared on a rural property. The appellant produced a knife and threatened to kill H. He said 'I love you and I can't live without you. I want to kill you but I want you to suffer like you made me suffer' (count 2).

24 The appellant restrained H by using cable ties to secure her wrists. He forced her into a motor vehicle and drove to an area in the vicinity of a country town. The appellant then ordered H to get into an abandoned van parked nearby and lie down. The appellant proceeded to remove H's pants and underwear. He had the knife within arm's reach. The appellant had sexual intercourse with H for about five minutes, without her consent, and ejaculated inside her vagina (count 3). H's wrists remained bound during the sexual assault.

25 Next, the appellant drove H towards the country town before stopping the vehicle and stabbing her in the chest, just above her left breast, with the knife (count 4). A struggle ensued. During the struggle, H's right middle finger was cut by the knife. She managed to get out of the vehicle, but the appellant caught her and dragged her by the hair into the vehicle. At this stage, H was having difficulty breathing. The appellant said he would take her to a hospital. A little later, he said he would instead take her to a nurse who lived nearby. H said 'no, you're lying. You're taking me back out there'. H jumped from the moving vehicle as it slowed to turn a corner. She ran to a nearby house for assistance. H was taken by ambulance to hospital. She had a 5 cm stab wound to her left upper chest. This caused a pneumothorax to her left lung.

26 The appellant committed the counts in the second indictment while he was on bail for the counts in the first indictment.

The sentencing judge's sentencing remarks and the appellant's personal circumstances

27 The sentencing judge recounted in his sentencing remarks the facts and circumstances of the offending.

28 His Honour described the offending against M as involving 'the most gross breach of trust'. This offending occurred when M's mother, H, was away from home. The appellant 'sometimes engineered [the] opportunity' to be alone with M by encouraging H to leave the home. The farm on which the family was living was 'reasonably isolated' (ts 44).

29 The sentencing judge said that the two episodes of offending charged in the first indictment had 'features of sexual penetration without consent'. The offending was not 'the result of grooming' (ts 45).

30 His Honour expressed the view that the offending the subject of the first indictment was 'at or near the top of the range of gravity, justifying the maximum penalty as a starting point' (ts 45).

31 The sentencing judge noted the appellant's pleas of guilty to the counts in the first indictment, and allowed a discount of 20% in respect of the individual sentences in accordance with s 9AA of the Sentencing Act 1995 (WA) (ts 45).

32 His Honour observed that the offending charged in the second indictment occurred while the appellant was on bail for the offending charged in the first indictment. The appellant subjected H to a terrifying ordeal, during which she believed her life was at an end. The appellant's behaviour involved 'criminality of the highest degree' (ts 46).

33 The sentencing judge referred to victim impact statements he had received from M and H. They made 'harrowing reading' (ts 46). He accepted the truth of their statements.

34 Before imposing the individual sentences for each of the counts in the first and second indictments, his Honour said:

With respect to each offence the sentence I impose has been discounted by 20% for the plea of guilty. So ... this will just sound like a list of numbers. These are the sentences I think each offence deserves but they're not just going to be added up because that would result in far too heavy a sentence and the Court of Appeal would overturn it (ts 47).

35 After imposing the individual sentences for each of the counts in the first and second indictments, the sentencing judge said:

I reiterate each of those sentences has been discounted for the plea of guilty (ts 48).

36 The appellant was born in 1967. He was aged 47 at the time of sentencing. Although the appellant had no prior history of sexual offending, he had a criminal record in Queensland. His previous convictions included possession of dangerous drugs and dangerous driving causing grievous bodily harm. He left school at the age of 15 and has worked as a labourer and a plant operator. He has been in regular employment and, in recent years, has worked at mine sites on a fly in/fly out basis.

37 The information before his Honour included a pre-sentence report and a psychological report.

38 The psychological report dated 22 January 2015 was prepared by Mary-Anne Martin, a forensic and clinical psychologist.

39 The appellant told Ms Martin that he drinks alcohol 'fairly regularly', but is not a 'big drinker'. He smokes cannabis occasionally at social gatherings. He used amphetamine, methamphetamine and heroin while employed as a fly in/fly out worker. He also used heroin, and occasionally OxyContin, to help him sleep, usually on a daily basis. The appellant told Ms Martin that he believed he did not have any problems with illicit drugs and had 'given up substances when he realised what he had done in relation to [H]'.

40 Ms Martin noted the appellant's history of substance abuse and his professed lack of recollection with respect to all of the offending. She said:

While [the appellant] is hiding behind his drug use as an excuse for his behaviour, and lack of memory for the offences, there is little meaningful analysis that can be made [about his offending behaviour].

41 Psychological risk assessments carried out by Ms Martin indicated that the appellant was at 'a moderate to high risk of future sexual offending, and a moderate risk of future violent offending, most likely family violence'.

42 The appellant relies on three grounds of appeal.

43 Ground 1 alleges that the sentencing judge erred in law by imposing a total effective sentence in relation to the first indictment which breached the first limb of the totality principle.

44 Ground 2 alleges that his Honour erred in law in failing to state, contrary to s 9AA(5) of the Sentencing Act, the extent of the reduction for the pleas of guilty on the head sentences for the offences in the second indictment; further or alternatively, his Honour erred in law in failing to reduce the head sentences, for the pleas of guilty in relation to those offences, by 25%.

45 Ground 3 alleges that his Honour erred in law by imposing an overall total effective sentence in relation to the first and second indictments which breached the first limb of the totality principle; further or alternatively, which failed to give proper effect to 'the mitigating considerations applicable to the imposition of consecutive sentences for discrete offences'; further or alternatively, which breached the second limb of the totality principle.

46 On 8 October 2015, Mazza JA granted leave to appeal on ground 3 and referred the application for leave to appeal on grounds 1 and 2 to the hearing of the appeal.

47 A ground of appeal that alleges a breach of the totality principle asserts an implied or inferred error based on the sentencing outcome.

48 The first limb of the totality principle requires that the total effective sentence imposed on an offender who has committed multiple offences must bear 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 a term of imprisonment), viewed in their entirety, and after having regard to all relevant circumstances, including those referable to the offender personally (and including, for example, the desirability of accommodating any wish to rehabilitate), and the total effective sentences imposed in comparable cases.

49 The practical effect of the totality principle is ordinarily to arrive at a total effective sentence which is less than that which would have been arrived at merely by adding up all of the terms appropriate for the individual sentences. See Roffey v The State of Western Australia [2007] WASCA 246 [26] (McLure JA, Steytler P & Miller JA agreeing). Also, the severity or leniency of an individual sentence is relevant in evaluating whether the total effective sentence infringes the first limb of the totality principle. See Giglia v The State of Western Australia [2010] WASCA 9 [40] (Owen JA, McLure P & Pullin JA agreeing).

50 The maximum penalty for the offence of sexually penetrating a child who the offender knows is his or her de facto child, where the child is under the age of 16 years, is 20 years' imprisonment. See s 329(2) read with s 329(9)(a) of the Code. The appellant was convicted of nine of these offences.

51 The maximum penalty for the offence of indecently dealing with a child who the offender knows is his or her de facto child, where the child is under the age of 16 years, is 10 years' imprisonment. See s 329(4) read with s 329(10)(a) of the Code. The appellant was convicted of one of these offences.

52 The primary sentencing considerations for offences of the kind committed by the appellant are appropriate punishment of the offender and personal and general deterrence, having regard to the need to protect vulnerable children. See Woods v The Queen (1994) 14 WAR 341, 345 - 346 (Anderson J, Malcolm CJ & Seaman J agreeing); PP v The State of Western Australia [2004] WASCA 144 [14] (McLure J, Malcolm CJ & Murray J agreeing); M v The State of Western Australia [2006] WASCA 256 [30] (Wheeler JA, Steytler P & McLure JA agreeing).

53 It is well-established that in cases of intra-familial sexual abuse, matters personal to the offender are of less mitigatory weight than might otherwise be the case. The fact that an offender is otherwise of good character has only little weight because the offences are of a kind that, until revealed, generally do not impact on other people or upon their perception of the offender. See MPD v The State of Western Australia [2008] WASCA 57 [58] (Miller JA, Wheeler & Buss JJA agreeing).

54 The guidance afforded by comparable cases is flexible rather than rigid. The mere fact a sentence is within the range of other sentences imposed for similar offending does not necessarily establish that there was an appropriate exercise of the sentencing discretion in the particular case. Similarly, the mere fact a sentence is outside the range does not necessarily establish that the exercise of the sentencing discretion in the particular case miscarried.

55 A sentencing range for comparable offences is merely one of the factors to be taken into account in deciding whether an individual sentence is manifestly inadequate or a total effective sentence infringes the first limb of the totality principle. A range of sentences customarily imposed is of significance for the purpose of ensuring broad consistency in the sentencing of offenders in broadly comparable cases. However, a sentencing range for comparable cases does not fix the range of a sound exercise of the sentencing discretion in a particular case.

56 When this court dismisses an appeal against sentence, and when it allows an appeal against sentence and resentences the offender, this court's decision on the sentencing outcome does not, of itself, fix the upper or lower limit of the range.

57 There is no 'tariff' for offences of the kind committed by the appellant (or for sex offences generally) because of the great variation that is possible in the circumstances of the offending and the offenders. The sentence to be imposed in a particular case depends on its individual facts and circumstances, having regard to the maximum penalty and all relevant sentencing factors. See The State of Western Australia v Akizuki [2008] WASCA 267; (2008) 192 A Crim R 373 [3], [67] - [69] (Steytler P); Juma v The State of Western Australia [2011] WASCA 54 [37] - [38] (McLure P, Newnes JA & Mazza J).

58 The discretion conferred on sentencing judges is, of course, of fundamental importance and this court may not substitute its opinion as to sentencing for that of the sentencing judge merely because it would have exercised the discretion in a different manner. See Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665 [15] (Gleeson CJ, Gaudron, McHugh, Gummow, Kirby, Hayne & Callinan JJ).

59 In the present case, the appellant does not complain about the length of any of the individual sentences in relation to the first indictment. Ground 1 does not allege that his Honour made any express error.

60 Nevertheless, counsel for the appellant said in argument that the sentencing judge erred in stating:

So in my opinion, the domestic child abuse upon which [the first indictment] is based is at or near the top of the range of gravity, justifying the maximum penalty as a starting point (ts 45).

61 Counsel argued, in substance, that his Honour erred in characterising the offending as 'at or near the top of the range of gravity' and, also, in asserting that the maximum penalty should be the 'starting point'.

62 In my opinion, the sentencing judge appears to have been asserting that the overall offending the subject of the first indictment was 'at or near the top of the range of gravity'. The statement was, in general, correct in relation to the objective facts of the appellant's offending conduct, but the statement must be viewed in the context of all the facts and circumstances of the case including the appellant's pleas of guilty. His Honour was not referring to any individual offence or offences. Also, the better view is that his Honour's comment about 'the maximum penalty as a starting point' being justified should be interpreted as a statement of his intention to impose a total effective sentence consistent with the upper range of sentences imposed for 'domestic child abuse' of the kind alleged in the first indictment. His Honour's comment did not relate to any individual sentence or sentences.

63 In my opinion, the merit of ground 1, in the context of the sentencing judge's impugned statement and his Honour's sentencing remarks as a whole, is to be determined by the ordinary application of the first limb of the totality principle. As I have mentioned, the first limb of the totality principle is concerned with whether error may be implied or inferred from the sentencing outcome. It is to be applied by reference to the content of the principle. Also, it is concerned with the ultimate result and not with any starting point.

64 I have read and considered numerous cases involving appeals against sentence for child sex offences. In particular, I have examined the facts and circumstances, and the sentencing dispositions, in Rogers v The Queen [2004] WASCA 147; Truscott v The State of Western Australia [2007] WASCA 62; GMS v The State of Western Australia [2009] WASCA 107; Rowan v The State of Western Australia [2009] WASCA 185; The State of Western Australia v Prince [2011] WASCA 22; RFS v The State of Western Australia [2012] WASCA 58; CJF v The State of Western Australia [2012] WASCA 69; The State of Western Australia v FJG [2012] WASCA 206; Downie v The State of Western Australia [2013] WASCA 244; GHK v The State of Western Australia [2014] WASCA 19; ARK v The State of Western Australia [2014] WASCA 45; LFG v The State of Western Australia [2015] WASCA 88; (2015) 48 WAR 178; The State of Western Australia v PJW [2015] WASCA 113; and the cases referred to in those decisions. I have also considered the facts and circumstances, and the sentencing dispositions, in other cases cited by counsel for the appellant and counsel for the State. It is unnecessary to reproduce the relevant facts and circumstances or the sentences imposed in the previous cases. There are some comparable features between some of those cases, on the one hand, and the present case, on the other, but there are also distinguishing features (for example, the number of victims and the presence or absence of pleas of guilty).

65 The charges in the first indictment were representative of a course of conduct. Although the appellant was only to be sentenced and punished for the offences with which he was charged, the representative character of his offending demonstrated that the charged offences were not isolated incidents. His offending was therefore not uncharacteristic or an aberration.

66 Numerous features of the appellant's offending in relation to the first indictment reveal the nature and extent of his culpability. In particular:

(a) There was a marked age disparity between the appellant and M.

(b) The appellant had been M's de facto father since she was aged about 2.

(c) The two episodes of offending involved planning and premeditation. The appellant created the opportunity to offend by encouraging H to leave M alone in his care. He acquired lingerie before the first episode of offending which he required M to wear. Also, before the second episode of offending, he set up a video camera to record the offences.

(d) The offending occurred in the family home, a relatively isolated farmhouse, where M was vulnerable and the appellant could abuse her for an extended period without fear of being discovered.

(e) The first episode of offending took place on a weekend, with the appellant abusing M over a lengthy period, 'coming back for more later during the night, and again the following night' (ts 44).

(f) The second episode of offending continued for at least two hours and involved repeated acts of sexual penetration.

(g) The appellant threatened M and, on one occasion, slapped her face to ensure she complied with his demands. Also, the threats, which related not only to M but also to other members of her family, were designed to ensure that she did not report the abuse.

(h) The appellant filmed the offences the subject of counts 7, 8, 9 and 10. He had previously told M that once he had recorded the abuse he would stop offending against her. That was not the case.

(i) The sexual acts included penile/vaginal penetration, digital/vaginal penetration and oral sex. The appellant humiliated M by ejaculating onto her face and stomach.

(j) M's victim impact statement explained the destructive impact which the offending had upon her.

(k) The appellant's offending against M's mother, H, the subject of the second indictment, would have adversely affected M in view of the threats to harm her family which the appellant made in the course of his offending against M.

67 The appellant appears to be at a moderate to high risk of future sexual offending and at a moderate risk of future violent offending, most likely family violence.

68 The principal mitigating factor was the appellant's pleas of guilty. The sentencing judge allowed a discount of 20% in respect of the individual sentences, pursuant to s 9AA of the Sentencing Act.

69 Otherwise, there was little by way of mitigation. The appellant was not youthful or inexperienced for sentencing purposes. He did not have the mitigation of being otherwise of good character. The appellant claimed to have little or no recollection of the offending and, accordingly, little weight could be given to any remorse. No victim empathy was apparent. His personal circumstances and antecedents were generally unfavourable.

70 Nevertheless, I have concluded that the total effective sentence of 12 years' imprisonment, especially in the context of the pleas of guilty, was not broadly consistent with reasonably comparable cases and was not commensurate with the overall seriousness of the offending. I am satisfied that the total effective sentence did not bear a proper relationship to the criminality involved in all of the counts in the first indictment, viewed together, and having regard to all relevant facts and circumstances and all relevant sentencing factors, including the seriousness of the offending as a whole, the pattern of sentencing in reasonably comparable cases and the aggravating and mitigating factors. The proper exercise of the sentencing discretion required lesser accumulation of the individual sentences. Error by his Honour should be implied or inferred, based on the first limb of the totality principle, from the sentencing outcome.

72 In ground 2 the appellant contends that the sentencing judge erred in law in failing to state, contrary to s 9AA(5) of the Sentencing Act, the extent of the reduction for the pleas of guilty on the head sentences for the offences the subject of the counts in the second indictment; further or alternatively, his Honour erred in law in failing to reduce the head sentences, for the pleas of guilty in relation to those offences, by 25%.

73 As to the first part of ground 2, I am satisfied that, on a fair reading of the sentencing remarks as a whole, his Honour applied a 20% discount, pursuant to s 9AA of the Sentencing Act, to the head sentence he would otherwise have imposed in respect of each offence, including the offences the subject of the counts in the second indictment. I refer, in particular, to the observations of his Honour that I have reproduced at [34] - [35] above.

74 As to the second part of ground 2, that part was in effect abandoned by counsel for the appellant at the hearing. The following exchange occurred at the hearing in relation to the second part:

McLURE P: I think you're pushing a rock uphill, here.

KARSTAEDT, MR: I won't pursue that one, then (appeal ts 14).

75 In any event, the amount of any discount under s 9AA is discretionary and the discretion is not exercisable solely by reference to the stage in the proceedings at which the plea is entered or notice of a plea is given. See Abraham v The State of Western Australia [2014] WASCA 151 [62] (Buss JA, McLure P agreeing). There is no doubt that a 20% discount was within the range open to the sentencing judge on a proper exercise of his discretion.

77 In ground 3 the appellant contends that the sentencing judge erred in law by imposing an overall total effective sentence in relation to the first and second indictments which breached the first limb of the totality principle; further or alternatively, which failed to give proper effect to 'the mitigation considerations applicable to the imposition of consecutive sentences for discrete offences'; further or alternatively, which breached the second limb of the totality principle.

78 I have noted, in considering ground 1, the content of the first limb of the totality principle and a number of other related sentencing principles.

79 The second limb of the totality principle requires that the total effective sentence imposed on an offender should not constitute a 'crushing' sentence; that is, it should not destroy any reasonable expectation of useful life after release from custody.

80 In Jarvis v The Queen (1993) 20 WAR 201, Ipp J noted the phenomenon that 'it is not unusual for an overall term of imprisonment to be reduced even though the individual sentences are proportionate to the gravity of the particular crimes for which they were imposed' (207). The explanation for this phenomenon is that the severity of a term of imprisonment increases exponentially as it increases in length. See Jarvis (207) (Ipp J), (213) (Murray J).

81 The phenomenon and its rationale, as referred to in Jarvis, are aspects of the totality principle. They do not have an independent operation.

82 In the present case, the appellant does not complain about the length of any of the individual sentences in relation to the second indictment. Ground 3 does not allege that his Honour made any express error.

83 I have already examined, in the context of ground 1, the appellant's offending in relation to the first indictment and his personal circumstances and antecedents.

84 As to the second indictment, the maximum penalty for:

(a) unlawful detention, contrary to s 333 of the Code, is 10 years' imprisonment;

(b) threatening to unlawfully kill, contrary to s 338B(a) of the Code, is 7 years' imprisonment;

(c) aggravated sexual penetration without consent, contrary to s 326 of the Code, is 20 years' imprisonment; and

(d) unlawful wounding with intent to do grievous bodily harm, contrary to s 294(1) of the Code, is 20 years' imprisonment.

85 There is no tariff for the offence of sexual penetration without consent or the offence of aggravated sexual penetration without consent. See The State of Western Australia v Turaga [2006] WASCA 199 [35] (McLure JA, Buss JA agreeing); Ackley v The State of Western Australia [2013] WASCA 199 [50] (McLure P, Buss & Mazza JJA agreeing). The maximum penalty for sexual penetration without consent where the victim is of or over the age of 16 is 14 years' imprisonment (s 325 of the Code) whereas the maximum penalty for aggravated sexual penetration without consent is 20 years' imprisonment (s 326 of the Code).

86 It is difficult to find previous cases which are broadly comparable with the appellant's offending in relation to the second indictment. I have, however, read and considered a number of cases including Vilai v The Queen [1999] WASCA 275; THG v The State of Western Australia [2012] WASCA 139; Ackley; and the cases referred to in those decisions. I have also considered the facts and circumstances, and the sentencing dispositions, in other cases cited by counsel for the appellant and counsel for the State.

87 The appellant's offending in relation to the second indictment was extremely serious. The sentencing judge emphasised, rightly in my opinion, the following matters:

(a) The sexual penetration without consent occurred in circumstances where H had been deprived of her liberty for an extended period and her hands were bound with cable ties.

(b) The sexual assault occurred in an abandoned van in a secluded place.

(c) The appellant's action in stabbing H in the chest with a knife and puncturing her lung was gratuitous, intentional violence and committed after he had threatened to kill H.

(d) H experienced a terrifying ordeal during which she believed her life was at an end.

(e) The offending was aggravated by its commission while the appellant was on bail for the offences the subject of the first indictment.

88 His Honour did not make a finding that there was a causal connection between the threats made to M, on the one hand, and the offending conduct against H, on the other.

89 The principal mitigating factor was the appellant's pleas of guilty. As I have mentioned, his Honour allowed a discount of 20% in respect of the individual sentences, pursuant to s 9AA of the Sentencing Act. Otherwise, there was little by way of mitigation.

90 In my opinion, the total effective sentence of 8 years' imprisonment for the offences in the second indictment was, no doubt, well within the range open to the sentencing judge on a proper exercise of his discretion, and reflects, no doubt, totality issues arising as a result of the appellant standing for sentence not only in relation to the offences in the second indictment but also the offences in the first indictment.

91 However, I am persuaded that the overall total effective sentence of 20 years' imprisonment in relation to the first and second indictments, especially in the context of the pleas of guilty, was not commensurate with the overall seriousness of the offending the subject of the first and second indictments. The overall total effective sentence did not bear a proper relationship to the criminality involved in all of the counts in the first and second indictments, viewed together, and having regard to all relevant facts and circumstances and all relevant sentencing factors, including the seriousness of the offending as a whole, the pattern of sentences in reasonably comparable cases and the aggravating and mitigating factors. I would imply or infer error, based on the first limb of the totality principle, from the sentencing outcome.

92 I am not satisfied that the overall total effective sentence of 20 years' imprisonment breached the second limb of the totality principle. The appellant will be aged 67 upon discharge of the 20-year sentence. It cannot reasonably be said that he has been left without any reasonable prospect of useful life after his release from custody.

93 Ground 3 has been made out to the extent it relies on the first limb of the totality principle.

The result of the appeal and the resentencing of the appellant

94 I would grant leave to appeal on ground 1 and refuse leave on ground 2. The appeal should be allowed.

95 This court has the material necessary to resentence the appellant.

96 The individual sentences imposed by the sentencing judge should not be disturbed.

97 His Honour's orders for concurrency and cumulacy in relation to the first indictment should be set aside. His Honour's orders for concurrency in relation to the second indictment should stand. His Honour's order for cumulacy in relation to the total effective sentence he imposed for the first indictment, on the one hand, and the total effective sentence he imposed for the second indictment, on the other, should be set aside.

98 After taking into account the maximum penalties, the facts and circumstances of the offences in the first indictment and all other relevant sentencing factors (including the pleas of guilty), I would impose a total effective sentence of 8 years' imprisonment for the offences in the first indictment. The individual sentence of 2 years' imprisonment for count 1 should be served cumulatively upon the individual sentence of 6 years'

imprisonment for count 8. All of the other individual sentences should be served concurrently with the individual sentence for count 8.

99 After taking into account the maximum penalties, the facts and circumstances of the offences in the first and second indictments and all other relevant sentencing factors (including the pleas of guilty), I would impose an overall total effective sentence of 16 years' imprisonment in relation to the first and second indictments. The total effective sentence in relation to the second indictment should be served cumulatively upon the new total effective sentence in relation to the first indictment. It is necessary to order the total accumulation of the total effective sentences in order properly to mark the seriousness of the overall offending.

100 The new total effective sentence in relation to the first indictment should be taken to have taken effect on 1 November 2014. The appellant remains eligible for parole. He will be eligible to be considered for release on parole when he has served 14 years calculated from 1 November 2014.