Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA

Criminal law - Sentencing - Sexual offences - Fifteen counts of sexual penetration without consent - Twenty-nine counts of unlawful and indecent assault - One count of unlawful wounding - Pleas of guilty to 18 counts - Pleas of not guilty to the remaining 27 counts - Offences committed against 22 separate victims over a period of about four years and four months - Appellant filmed sexual acts perpetrated against numerous victims - Whether total effective sentence was 'crushing' - Whether total effective sentence bore a proper relationship to the overall criminality of the offending

H v The State of Western Australia [2006] WASCA 53; (2006) 163 A Crim R 151

Hoare v The Queen [1989] HCA 33; (1989) 167 CLR 348

Jarvis v The Queen (1993) 20 WAR 201

Kirby v The Queen [2003] WASCA 239

Moody v French [2008] WASCA 67; (2008) 36 WAR 393

R v Balassis [2009] VSC 127

R v Maclay (1990) 19 NSWLR 112

Royer v The State of Western Australia [2009] WASCA 139

The State of Western Australia v Akizuki [2008] WASCA 267

1 McLURE P: I am in dissent in this appeal. I would allow the appeal and reduce the total sentence from 20 years 2 months' imprisonment to 16 years 8 months.

2 The facts are detailed in the reasons of Buss JA and need not be repeated here. This case presented a difficult sentencing exercise for the sentencing judge. The offending involved an unusual combination of circumstances. There are no directly comparable cases in this jurisdiction to provide a broad benchmark for the purposes of consistency.

3 However, the applicable legal principles are well-known. In order to succeed, the appellant must demonstrate that the sentencing judge made an express or implied material error of fact or law. The appellant relies on an implied error said to be discernible from the total sentence itself. He claims it infringes the totality principle. The totality principle has two limbs and applies to (inter alia) sentencing for multiple offences. The first limb is that the total effective sentence must be a just and appropriate measure of the total criminality of the offending as a whole, having regard to all relevant sentencing factors, including those referable to the offender personally. As with an individual sentence, there is not a single correct total effective sentence.

4 The second limb of the totality principle is that the court should not impose a crushing sentence. Crushing in this context means the destruction of any reasonable expectation of a useful life after release.

5 The practical effect of the totality principle is ordinarily to arrive at a total sentence that is less than the sum of the terms of imprisonment appropriate for each individual offence. A rationale for the totality principle is that there is assumed rehabilitation and reduced demand for retribution after the initial sentences have been served.

6 I unreservedly accept that the total criminality of the appellant's offending is high and requires that he serve a very lengthy term of imprisonment. That assessment reflects the large number of complainants, the lengthy period of the offending, the nature of the offences, the appellant's lack of remorse and insight and the risk of him re-offending.

7 On the other hand, the circumstances of the individual offences are not at the high end of the scale of seriousness of crimes of this type. Indeed, some of the sexual aspects fall towards the lower end of the scale of seriousness. Further, there was no violence involved in any of the individual sexual offences. There was no abuse of a relationship of trust

which is the hallmark of sexual offending against children. The appellant did not covertly administer stupefying drugs or other substances to render his victims oblivious or helpless. Rather, the appellant's modus operandi was to target victims who rendered themselves more or less oblivious to their circumstances as a result of excessive alcohol consumption.

8 Further, the appellant, who was aged 43 when sentenced, had no previous involvement in the criminal justice system. He had no prior criminal record. Thus there is nothing in the appellant's history to undermine the rationale for the totality principle (assumed rehabilitation and reduced demand for retribution after the initial sentences have been served).

9 In all of the circumstances, I have concluded that a term of imprisonment of 20 years 2 months is more than what is fairly and justly required to achieve all the sentencing objectives, including punishment, retribution and deterrence. In re-sentencing, I would have imposed a total effective sentence of 16 years 8 months (by ordering cumulation of the sentences imposed for counts 1, 5, 11, 13, 19, 29 and 44).

10 BUSS JA: The appellant was convicted in the District Court on 45 counts in an indictment which comprised 15 counts of sexual penetration without consent, contrary to s 325 of the Criminal Code (WA) (Code), 29 counts of unlawful and indecent assault, contrary to s 323 of the Code, and one count of unlawful wounding, contrary to s 301(1) of the Code.

11 On 7 July 2009, the appellant pleaded guilty to 18 of the counts of unlawful and indecent assault, being counts 20 - 23, 26 - 30 and 33 - 41. These pleas were not at the first opportunity, but the State had anticipated for some time that there would be pleas to most of the counts in the indictment. All of the offences to which the appellant pleaded guilty were captured by him on video footage. The evidence against him on those counts was overwhelming.

12 The appellant pleaded not guilty to the remaining 27 counts, being 15 counts of sexual penetration without consent, 11 counts of unlawful and indecent assault and one count of unlawful wounding. After a trial lasting 4 1/2 weeks before Sweeney DCJ and a jury, the appellant was found guilty on all of the remaining counts.

13 It is unnecessary to recount the individual sentences imposed by the sentencing judge. None of them is challenged. Her Honour made some of the individual sentences concurrent and others cumulative. The total

effective sentence was 20 years 2 months' immediate imprisonment. Her Honour ordered that the sentence commence on 3 August 2007, being the date on which the appellant was taken into custody for the offences. A parole eligibility order was made.

14 The appellant appeals to this court against the total effective sentence.

The background facts and the circumstances of the offences

15 The appellant committed 44 sexual offences against 22 separate victims between 27 March 2003 and 4 August 2007 (a period of about four years and four months). In less than a week, the appellant offended against three victims within three or four days. All of the victims were young men aged between 17 - 25 years. The appellant's victims were unknown to him, although two of them had met him on one previous occasion. The appellant chose victims who had fallen asleep or had lost consciousness or were drifting in and out of consciousness. They were unable to protect themselves. The appellant cruised the streets of Perth looking for young men who were very intoxicated. He video recorded some of his offending. The appellant kept a book in which he recorded details of the victims and the manner in which he had abused them.

16 The appellant's offending against the victims J, P, H, M, C and MN is indicative of his mode of offending; in particular, his targeting of vulnerable young men:

(a) J, the victim in counts 2 and 3, was sitting in a carpark, on his own, and was extremely intoxicated when the appellant approached him. He was aged only 17 years. The appellant was aged 38 years at the time he offended against J.

(b) P, the victim in count 5, was at best semiconscious and lying on the bitumen in a carpark at Scarborough. The appellant picked him up and took him back to his (the appellant's) home and offended against him.

(c) C, the victim in counts 24 and 25, was told by the appellant that he (the appellant) had picked him up from the ground in Northbridge.

(d) H, the victim in count 6, was extremely intoxicated and stumbling towards a taxi rank when he was approached by the appellant.

(e) M, the victim in counts 8 - 11, was asleep in a carpark when the appellant approached him. M was extremely intoxicated and without his mobile telephone or any money. M told the appellant that he was not interested in any sexual contact with him. Instead of assisting M, the appellant subjected him to a prolonged period of sexual abuse in a particularly degrading and humiliating manner, including shaving the hair on his anus and penetrating his anus with two fingers.

(f) MN, the victim in counts 17 - 19, was so intoxicated that the appellant had to guide him to his (the appellant's) car and assist him into a passenger's seat. The appellant then sexually assaulted him in the vehicle and again at his (the appellant's) house.

17 HS (the victim in count 23), C (the victim in counts 24 and 25) and D (the victim in counts 32 - 37) were so intoxicated when they had contact with the appellant that they had no recollection of having been sexually abused. They did not become aware of the abuse until they were contacted by police and identified themselves on video footage which the appellant had taken.

18 Other victims did not consider themselves grossly intoxicated when they had contact with the appellant, but some gave evidence that they felt drugged or unable to stay awake after accepting a drink from him. The appellant sexually abused them when they were in this vulnerable state.

19 The appellant's offending was calculated and premeditated. He regularly waited near taxi ranks and nightclubs in the early hours of the morning, often at about closing time. The offending against H, the victim in counts 38 and 39, illustrates the premeditated nature of his offending. H asked the appellant for directions to the Black Betty's nightclub to enable him to find his way back to his hotel. The nightclub was, in fact, around the corner from where this conversation occurred. Instead of giving him the simple directions, the appellant lured H into his (the appellant's) motor vehicle on the pretence of helping him. The appellant then fabricated a reason for driving H to his (the appellant's) home. Once inside, the appellant gave H more alcohol and played a pornographic video on the television. When H lost consciousness, the appellant offended against him.

20 The offending against victims that was filmed by the appellant occupied a significant period of time. The counts in relation to each victim were representative of offending conduct which occurred during the filming. The periods of time spanned by the footage included the following:

(a) On 2 November 2006, the appellant filmed an unidentified male between 8.36 am and 12.01 pm. During this period the victim was asleep or unconscious on the appellant's lounge room floor. The total filming time was 27 minutes.

(b) On 16 November 2006, the appellant filmed HS between 7.07 am and 7.45 am. During this period the victim was asleep or unconscious in the appellant's vehicle. The total filming time was 11 minutes.

(c) On 14 December 2006, the appellant filmed C between 4.53 am and 9.05 am. During this period the victim was asleep or unconscious either in the appellant's vehicle or on his bed. The total filming time was 24 minutes.

(d) On 1 April 2007, the appellant filmed W between 7.09 am and 7.43 am. During this period the victim was asleep or unconscious on the appellant's bed. The total filming time was 20 minutes.

(e) On 3 April 2007, the appellant filmed L between 3.40 am and 5.04 am. During this period the victim was asleep or unconscious in the appellant's vehicle. The total filming time was 50 minutes.

(f) On 5 April 2007, the appellant filmed D between 4.49 am and 7.24 am. During this period the victim was asleep or unconscious in the appellant's vehicle. The total filming time was 50 minutes.

(g) On 29 April 2007, the appellant filmed H between 6.06 am and 7.00 am. During this period the victim was asleep or unconscious on the appellant's couch. The total filming time was 28 minutes.

(h) On 10 June 2007, the appellant filmed an unidentified male between 8.08 am and 8.48 am. During this period the victim was asleep or unconscious in the appellant's car. The total filming time was 16 minutes.

21 The offending against these victims was degrading. This was especially so in the case of D. The appellant placed D in various positions and focused his filming on D's genital area. He used a torch to illuminate D's genitals and to illuminate D urinating on himself.

22 After he was apprehended and charged, the appellant admitted to Dr Sam Febbo, a consultant psychiatrist, that he used the video footage later as a masturbatory aid. Also, after he committed the offences, he fantasised about them.

23 The 15 counts of sexual penetration without consent involved two instances of digital anal penetration and 13 instances of the appellant performing fellatio on a victim.

24 In his report dated 12 October 2009, Dr Febbo said that a detailed psychiatric history obtained from the appellant and a mental state examination did not reveal the presence of a major psychiatric disorder, such as a psychotic illness or a bipolar disorder. Dr Febbo was of the opinion, however, that there was evidence to suggest the existence of significant personality pathology.

25 Dr Febbo noted a number of risk factors in relation to the potential for future sexual violence. These included the presence of sexual deviancy, personality pathology, isolation and limited social support, childhood abuse (both physical and sexual), and limited insight. Despite these risk factors, it was possible that, with appropriate treatment strategies, the appellant's level of risk could be diminished significantly.

26 A psychologist, David Summerton, interviewed the appellant for the purposes of a psychological assessment and report.

27 Mr Summerton said in his report dated 11 October 2009 that the appellant was aged 43 years. He was born in Malaysia, of ethnic Chinese background, and had been in Australia since he was 32 years old.

28 Mr Summerton said that, on the basis of the Static 99, an internationally recognised risk assessment measure, the appellant's risk of sexual reoffending was in the medium/high risk category.

29 According to Mr Summerton, the appellant significantly minimised his actions in relation to the offending by suggesting that much of his behaviour involved consent on the part of the victims. Also, the appellant downplayed the level of intoxication of some of them. Mr Summerton said that the appellant appeared to have limited insight into his offending and had only a limited understanding of the complexity of intimate relations with others.

30 Mr Summerton summarised his conclusions, as follows:

The given offences are viewed as representative of a broad course of offending against 17 [sic] young adult males over an approximate four year period. He has been assessed as a medium high risk of offending through the entrenched nature of his offending over the specified period and the elaborate planning that was undertaken suggests that this may understate his actual level of risk. He has accepted some responsibility for his offending though generally impressed as having limited insight into his behaviour. There was evidence of significant minimisation. He is viewed as having considerable treatment needs and he has expressed a high level of motivation to address his offending.

31 The sole ground of appeal is that the sentencing judge erred in law by imposing a total sentence that was 'manifestly excessive'. On 8 March 2010, Jenkins J granted leave to appeal.

32 Counsel for the appellant clarified at the hearing that he contended that the total effective sentence of 20 years 2 months' imprisonment infringed each limb of the totality principle.

33 According to the appellant's counsel, the total effective sentence did not bear a proper relationship to the overall criminality involved in all of the offences, and was crushing.

34 Counsel said that the total effective sentence failed properly to reflect the circumstances in which the offences were committed, the appellant's personal circumstances, the place the offending occupies in the scale of seriousness of offences of the kind in question, and the sentencing standards for comparable offenders and offending.

35 The appellant's counsel argued that the total effective sentence was unjust because of the absence in the present case of the high level of brutality towards the victims which is evident in other cases at the upper end of the range. Counsel also referred to and emphasised the absence in the present case of other aggravating features such as the absence of any offending against a child (except the 17-year-old victim, J).

36 It was also submitted on behalf of the appellant that he has 'significant treatment needs' and it is likely that a continuing detention or a supervision order will be made in respect of him under the Dangerous Sexual Offenders Act 2006 (WA) when he is due for release. It is unlikely that he will be released on parole unless he has addressed his 'significant treatment needs'. The appellant will be aged 59 years when he is eligible to be considered for release on parole and, according to his counsel, it would be difficult for him to have a useful life upon release after such a long period of incarceration (appeal ts 8).

37 Counsel argued that if one of the individual sentences that are presently cumulative were to be made concurrent, this would significantly reduce the overall impact on the appellant of the total effective sentence (appeal ts 8). He suggested a reduction of 2 years and 6 months from 20 years 2 months to 17 years 8 months' imprisonment (appeal ts 9). According to counsel, if a reduction of that order were to be made, it would assist the appellant's rehabilitation and give him more hope of a useful life after release (appeal ts 9).

38 The totality principle comprises two aspects. First, the total effective sentence imposed on the offender 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, 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). Secondly, 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.

39 The maximum penalties for the offences in question were:

(a) sexual penetration without consent: 14 years' imprisonment;

(b) unlawful and indecent assault: 5 years' imprisonment; and

40 The primary sentencing considerations for offences of this kind are punishment of the offender, and specific and general deterrence.

41 There is no tariff for sexual offences, and the sentence to be imposed in a particular case depends on its individual facts and circumstances, after having regard to the maximum available penalties. It is, nevertheless, important, in deciding whether a particular sentence infringes the totality principle, to appreciate what sentences are customarily imposed in cases involving similar offending. See The State of Western Australia v Akizuki [2008] WASCA 267 [3] (Steytler P, McLure JA agreeing).

42 In the present case, the sentencing judge identified the following aggravating features of the appellant's conduct:

(a) his offending was premeditated, not opportunistic (ts 82);

(c) a number of the victims were unconscious or asleep when he assaulted or interfered with them (ts 81);

(d) he kept video footage of his violation of some of the victims for personal sexual gratification (ts 82); and

(e) he offended while on bail for the offence of unlawful wounding and when he knew that police were in possession of his video footage and his book containing some details of each victim (ts 83).

43 Her Honour also identified some aggravating features that were present in other cases of serious sexual offending, but absent in the appellant's case:

(c) no violence was involved in any of the sexual offences;

(d) the appellant did not, by violence or intimidation, force anyone to do anything to him; and

(e) no one was tricked, intimidated or manipulated into keeping any offence a secret (ts 81 - 82).

44 The appellant's personal circumstances were, relevantly, these:

(c) his childhood had impacted negatively upon his social development and sexual psychological development (ts 73);

(d) he displayed some symptoms of ongoing trauma from childhood including some traits of avoidant personality disorder and some traits of paranoid personality disorder (ts 75);

(e) he reported having been sexually interfered with as a teenager (ts 73);

(f) the first of the offences broadly coincided with the deterioration of his marriage (ts 74); and

(g) he had maintained regular employment and had completed successfully a five year course of study (ts 73 - 74).

45 Although the sentencing judge noted the appellant's prior good character, she observed that this was overwhelmed by the magnitude of his offending (ts 86). Her Honour said:

While each individual incident may itself be less serious than some other individual offences of sexual penetration that this court has seen, your calculated predatory behaviour and the sheer staggering number of victims puts you into the exceptional category.

The total sentence is achieved by making a number of the individual sentences concurrent. That is not in any way meant to indicate that those sentences which are ordered to be served concurrently related to less serious matters or offences not worthy of imprisonment. It is simply a matter of structuring the sentence to achieve the overall total.

For that reason I do not intend to announce which victim was involved in the individual terms imposed because in a real sense the sentence reflects the whole of the case and all of the victims (ts 88).

46 In the present case, it is difficult to rely, for comparison purposes, on any previous sentences imposed in this State for sexual offences because the appellant offended against so many separate victims over such a long period of time. There are no directly comparable cases of offending in this State. It is therefore difficult to place the appellant's conduct in the scale of seriousness and to ascertain precisely where the total effective sentence falls within accepted standards for sentencing. In these circumstances, it is appropriate to have regard to sentences imposed in similar cases in other Australian jurisdictions as a guide.

47 In R v Balassis [2009] VSC 127, the offender pleaded guilty to five counts of rape, one count of attempted rape, four counts of administering a drug for the purpose of sexual penetration, two counts of indecent assault, two counts of indecent act and one count of recklessly causing injury. The offending spanned a period of three years and involved seven victims who, apart from one, were not previously known to him. Osborn J outlined the background facts:

At the time of the offending you were and had been for a number of years involved in poly-substance abuse. In common with many other drug users you often sought out others with similar inclinations. Your social interaction with them generally included an exchange of drugs and the drinking of alcohol. In turn these meetings were sometimes accompanied by sexual activity. Each of the offences before me occurred after you had taken drugs and often after you had taken drugs in combination with alcohol. It is an agreed fact that this combination adversely affected your capacity for judgment.

Some complainants also had alcohol and/or drug problems and likewise suffered impaired judgment as the result of the ingestion of such substances at or prior to the time of your offending.

In four cases you administered drugs specifically with the intention of rendering your victims incapable of resisting and thereby to enable yourself to take part in acts of sexual penetration, the victims being LT (count 3), PM (count 4) and CA (counts 6 and 11).

In other instances sexual activity occurred when your victims were so affected by the consumption of drugs as to be unable to consent.

The gravest offending involved CA (counts six to twelve on the presentment). At the time of these offences CA was only 14 years of age. Her young age together with the protracted sequence of your offending render it particularly serious [4] - [8].

His Honour sentenced the offender to 25 years' imprisonment with a minimum non-parole period of 21 years.

48 I note that in Balassis the offender pleaded guilty to all of the charges brought against him. By contrast, as I have mentioned, in the present case the appellant pleaded not guilty to 27 of the 45 charges against him, and was convicted on those 27 charges after a trial lasting four and a half weeks. Although the sentencing legislation applicable in Balassis provided for the minimum non-parole period to be fixed by the sentencing judge and, by contrast, the sentencing legislation in this State fixes the minimum non-parole period in the event the sentencing judge makes a parole eligibility order, that point of distinction is not material for present purposes. A head sentence and a total effective sentence must be determined without taking into account the legislative scheme for parole. See Hoare v The Queen [1989] HCA 33; (1989) 167 CLR 348, 353 - 356; R v Maclay (1990) 19 NSWLR 112, 119 - 121; Jarvis v The Queen (1993) 20 WAR 201, 208; Kirby v The Queen [2003] WASCA 239 [26].

49 Fast-track pleas of guilty, and pleas of guilty at the first opportunity, in this State ordinarily attract a reduction in sentence of somewhere between 20% - 35%, depending on the circumstances. See H v The State of Western Australia [2006] WASCA 53; (2006) 163 A Crim R 151 [9]; Moody v French [2008] WASCA 67; (2008) 36 WAR 393 [37]. As pointed out in Moody, in a particular case the reduction might be less (where, for example, there is a late plea and an absence of any real remorse) or more [37]. See also Royer v The State of Western Australia [2009] WASCA 139 [147].

50 If the appellant had pleaded guilty, on the fast-track system, to all counts in the indictment and had shown real contrition, he would have received a substantial discount on his total effective sentence.

51 It is true that, in the present case, the appellant's sexual offending was not aggravated by the use of violence or brutality against any of the victims. It is also true that some other aggravating features often present in sexual offending within the upper range were absent. However, on any reasonable view, the appellant's offending, considered as a whole, was extremely serious.

52 There were many different victims; the offending occurred regularly over a period of more than four years; the appellant pleaded not guilty and went to trial on 27 counts, and the victims were forced to give evidence; his offending was premeditated, calculated and predatory; he reoffended while on bail; he chose as victims young men who were so vulnerable that they would offer no relevant resistance, and who, if they recalled the sexual abuse, would be horrified and embarrassed afterwards and unlikely to complain about it; his choice of victims reduced substantially the risk of his being apprehended and, in consequence, increased the likelihood that he could continue to commit similar offences; and he had little insight into his conduct and was at a medium to high risk of reoffending. As the sentencing judge rightly noted, the magnitude of the appellant's conduct overwhelmed those of his personal circumstances which were favourable

to him. The fact that a continuing detention or a supervision order may be made in respect of him under the Dangerous Sexual Offenders Act when he is due for release is not a proper basis for reducing an otherwise appropriate total effective sentence. Although each individual count, examined in isolation, was not within the worst category, the offending considered as a whole was within the worst category for totality purposes.

53 A complaint that a sentencing judge has infringed the totality principle involves an allegation of inferred error. I am satisfied that in the present case the total effective sentence imposed by the sentencing judge did not infringe this principle. She gave very detailed and cogent reasons. The sentence of 20 years 2 months' imprisonment was, without doubt, very severe. However, the offending, considered as a whole, revealed criminality of an extremely serious kind and, in all the circumstances, a sentence of the length imposed by her Honour was not only justified, but necessary.

54 The appellant will be aged 59 years when he is eligible to be considered for release on parole and will be 61 years old when he has completed his sentence. The total effective sentence is not, however, 'crushing' in the relevant sense. The severity of the sentence does not, in my view, deprive the appellant of any prospect of a useful life after he has served his sentence.

55 I am not persuaded that this court should infer, on the basis of the sentencing outcome, that her Honour infringed either limb of the totality principle. The total effective sentence was not plainly unreasonably or unjust.