Effective sentence 28 years imprisonment with parole eligibility

Ahern v The Queen (1987) 26 A Crim R 280

Hewitt v The Queen, unreported; CCA SCt of WA; Library No 6187; 14 February 1986

Kennedy v The Queen, unreported; CCA SCt of WA; Library No 6116; 2 December 1985

Krakouer v The Queen, unreported; CCA SCt of WA; Library No 960438; 9 August 1996

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

Miles v The Queen (1997) 17 WAR 518

Miles v The Queen, unreported; CCA SCt of WA; Library No 2667; 3 August 1979

Miller v The Queen, unreported; CCA SCt of WA; Library No 4062; 6 March 1981

Musarri v The Queen, unreported; CCA SCt of WA; Library No 980662; 17 November 1998

Perkovic v The Queen, unreported; CCA SCt of WA; Library No 5814; 22 May 1985

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

R v B (1996) 88 A Crim R 91

R v Faulkner (1972) 56 Cr App R 594

R v Holder [1983] 3 NSWLR 245

R v White [2002] WASCA 112

Salihos v The Queen (1987) 27 A Crim R 319

Trescuri v The Queen [1999] WASCA 172

1 MURRAY J: I have read in draft the reasons for decision to be published by Parker J. I am in entire agreement with them and I have nothing to add. I too would delete the order for the cumulative service of the sentences imposed in respect of counts 5-7 in the indictment upon the sentences imposed for counts 1-4 so as to allow all of the sentences imposed in respect of counts 1-7 to be served concurrently.

2 I am aware that if those offences in respect of the two complainants in question were considered in isolation from the subsequent offences committed later in Riverton, an aggregate term of 6 years imprisonment for all the offences committed in Collie would be quite inadequate as punishment proportionate to the criminality involved in the Collie offences, but in my opinion, the Court is compelled to take the course proposed, solely on totality grounds, to ensure that the total term imposed for all the offences is properly proportionate to the criminality involved in its entirety.

3 As this Court made clear in Jarvis the Queen (1993) 20 WAR 201, and reiterated in the recent case of Herbert v The Queen [2003] WASCA 61, the severity of a term of imprisonment increases exponentially with its length. In other words, a sentence of 34 years imprisonment is properly to be regarded as more than twice as severe as a sentence of 17 years imprisonment. Nonetheless, the reduction proposed to a term of 28 years, in my opinion, marks the greatest extent to which the aggregate term may be reduced without producing the result that, having regard to the seriousness of the offences committed, the total term would be rendered inadequate to serve the applicable principles of sentencing - punishment, deterrence and the protection of the community.

4 PARKER J: The applicant seeks leave to appeal in respect of sentences totalling effectively 34 years imprisonment, to commence from 28 October 2002 with parole eligibility, imposed in this Court by McKechnie J on 15 January 2003.

5 The nature of the individual offences and the sentences imposed vary considerably. The offences are logically divided into four groups.

6 These four offences related to the complainant CAS and were committed at her home in Collie on 1 May 2002. The offences and sentences were aggravated burglary - 6 years imprisonment, deprivation of liberty - no sentence, aggravated and indecent assault -

2 years imprisonment, and unlawful wounding - 3 years imprisonment. These sentences were ordered to be served concurrently so that the effective head term in respect of them is 6 years imprisonment.

7 The complainant was a 20 year old woman who lived with her 22 month old son. In the early hours of the morning the applicant forced entry into her home by smashing a window. He then unlocked a security bolt and opened a door to provide an escape route. He then searched through the house for a short time. He heard the complainant get out of bed and hid. As the complainant walked past he grabbed the complainant from behind, held his hand over her mouth and a knife in front of her face, and warned her not to scream. The applicant then dragged the complainant toward a bedroom. She commenced screaming. He pulled her by her hair into her son's bedroom. The child woke and the applicant pushed him out of the room, closing and locking the door. The applicant then pushed the complainant onto the floor, causing a laceration to the back of her head, knelt beside her, held her down and pulled down her tracksuit pants and attempted to remove her underwear. The complainant struggled violently, trying to break free, and managed to grab the applicant by the testicles, which caused him to release the complainant and run from the room. As he did so he pushed the child against the wall. He left the house through the door that he had opened for this purpose.

8 These three offences occurred at Collie on 3 May 2002. They each concerned a complainant SLT. The offences and sentences were aggravated burglary - 6 years imprisonment, deprivation of liberty - no sentence, and aggravated and indecent assault - 2 years imprisonment. The sentences were to be served concurrently, an effective term of 6 years imprisonment, which was ordered to be served cumulatively on the sentence in respect of count 1.

9 The circumstances were that the complainant SLT was a 30 year old woman who lived alone in Collie. Early in the morning the applicant forced entry to her home by the back door. He entered the complainant's room, she woke, he leapt on top of her and pinned her so that she was unable to move and threatened her, in particular, saying "I'm going to fuck you. Don't say anything and you won't get hurt". A struggle followed, during which the complainant noticed a knife in the hand of the applicant. Eventually, due to the complainant's resistance and cries for help, the applicant fled from the house.

10 These offences occurred at the home of a woman PFO at about 1 am on 29 August 2002 in Riverton, a suburb of Perth. Most of the offences concerned BMN, the 12 year old granddaughter of PFO who was spending the night with her grandmother. The offences and penalties were aggravated burglary - 6 years imprisonment, deprivation of liberty - no sentence, indecent dealing of a child under 13 - 3 years imprisonment, sexual penetration of a child under 13 - 7 years imprisonment, sexual penetration of a child under 13 - 10 years imprisonment, sexual penetration of a child under 13 - 10 years imprisonment and sexual penetration of a child under 13 - 10 years imprisonment. These sentences were ordered to be served concurrently with each other, an effective total of 10 years imprisonment, but cumulatively on the sentences in respect of counts 1 and 5.

11 The circumstances are that BMN was asleep in a bedroom in the house of her grandmother PFO. PFO was some 68 years of age and was asleep in the lounge room of the house. The applicant saw this through a window. He obtained entry through a partially open laundry window and closed the door from the lounge into the passageway. The applicant then stole some $80 from two handbags in the kitchen and as he searched the rest of the house saw the complainant BMN asleep in a bedroom. The applicant lay behind BMN, placed his hands over her mouth and rubbed her breasts and body. This woke her. He said "Don't scream, otherwise your grandma will get hurt", and then pulled her underwear to the side and penetrated her vagina with his fingers. The complainant pulled down his own pants, inserted his penis in her vagina and attempted sexual intercourse. He stopped and said "It's not working". He then removed the complainant's underwear entirely and again inserted his penis in her vagina. As he did this the complainant felt a cold metal object, which she believed to be knife or a screwdriver, held to her neck. Shortly afterwards BMN was allowed to go to the toilet, but the applicant accompanied her with his hand around her throat, and then walked her back to the bedroom where he once again inserted his penis into her vagina and attempted sexual intercourse while holding the knife or screwdriver to her throat. During intercourse BMN asked about her grandmother. The applicant responded that he would hurt her if the complainant did anything wrong. Shortly after this the applicant withdrew his penis and ejaculated on the bed. After threatening BMN once again, the applicant left the house by the rear laundry door, taking the telephone with him.

12 These offences occurred at the home of a 68 year old woman, JFH, who lived alone at a house in Riverton. The applicant entered her home at about 2.30 am on 29 August 2002, ie shortly after the offences the subject of counts 8 - 14. The offences and penalties were aggravated burglary - 6 years imprisonment, aggravated sexual penetration - 7 years imprisonment, aggravated indecent assault - 1 year imprisonment, attempted aggravated sexual penetration - 4 years imprisonment, aggravated sexual penetration - 10 years imprisonment, aggravated indecent assault - 1 year imprisonment, aggravated sexual penetration - 12 years imprisonment, aggravated sexual penetration - 10 years imprisonment, aggravated sexual penetration - 10 years imprisonment, aggravated indecent assault - 2 years imprisonment, aggravated sexual penetration - 7 years imprisonment, aggravated indecent assault - 2 years imprisonment, deprivation of liberty - no sentence, aggravated armed robbery - 4 years imprisonment, and stealing motor vehicle - 4 years imprisonment.

13 These sentences were ordered to be served concurrently with each other, an effective total of 12 years imprisonment, but cumulatively on the sentences imposed on all other counts.

14 The circumstances of these offences were that the applicant entered the home of JFH by opening a window. JFH was asleep in bed. The applicant entered the bedroom, got into bed behind JFH, placed a hand over her mouth and held a knife to her throat. The applicant then put his hand inside her underwear, rubbed her vagina and then inserted a finger into her vagina. He then rubbed her breasts saying "Shut up. Don't scream". The applicant removed the complainant's track pants and underwear, pushed her onto her stomach and forced her legs apart. After several unsuccessful attempts to force his penis into her vagina in this position, he pushed the complainant into a kneeling position on her hands and knees, and after stretching her labia majora apart with his hands the applicant penetrated the complainant's vagina with his penis. He forcibly held her against the bed as he did so. After a short time he flung the complainant onto her back, causing her to strike her head against the wall. The applicant then spread the complainant's legs, pushed them towards her face and penetrated her vagina with his penis. He completed sexual intercourse with ejaculation. During this intercourse the applicant held a knife in his teeth. After ejaculation the applicant removed the knife from his mouth and tongued-kissed the complainant. The complainant was begging him to stop during these events. The applicant then removed his penis from her vagina and threw the complainant onto her stomach. He lay on top of her and inserted his penis into her anus. The complainant said this was hurting but she was told to "shut up". The complainant was crying and pleading with the applicant to stop, and she attempted to resist the applicant. He then held the knife to her throat. He removed his penis from her anus and pushed the complainant onto her right side. He knelt on the bed and attempted to force his penis into her mouth. She resisted by holding her mouth shut. The applicant said "Open your mouth". JFH refused, still crying, and the applicant grasped her head and jaw and forced her mouth open. He then inserted his penis and moved it in an out of her mouth. After a short time he removed his penis from her mouth and using a sheet from the bed wiped the outside of the complainant's vagina and then inserted his fingers with the sheet over them into her vagina in an attempt to remove DNA. He then wiped between her buttocks using the sheet. The applicant then left the lounge room, but returned and forced the complainant onto her stomach on the bed. He held a pillow over the back of her head and demanded her car keys. The complainant did not reply and the applicant held the knife to her throat and again demanded the car keys. The complainant told him where they were. The applicant left the bedroom, cut the phone line, collected the car keys, and then drove her car from the house taking her handbag, a mobile phone and cash to the value of approximately $80.

15 It will be apparent from this that the effective head sentences imposed in respect of each of the four groups of offences were:

Counts 8 - 14, re PFO and BMN, 10 years imprisonment

The effect of his Honour's orders was that each of these head terms is to be served cumulatively, hence the effective sentence of 34 years imprisonment.

16 The applicant was apprehended on 5 September 2002. He eventually made full admissions to the police in respect of the second, third and fourth groups of offences and partial admissions in respect of the first group. However, having been charged, the applicant entered pleas of guilty to all counts on 20 October 2002 in Petty Sessions. This was on the "fast-track" system. He confirmed those pleas when arraigned on indictment before his Honour on 15 January 2003.

17 His Honour had received psychiatric, psychological and pre-sentence reports. After submissions in mitigation from counsel representing the applicant his Honour imposed the sentences that have been set out earlier. When sentencing, in quite lengthy observations, his Honour detailed the circumstances of the offences and of the applicant and identified matters relevant to the sentencing process including matters that weighed in mitigation. No objection is taken on this appeal as to his Honour's appreciation of the relevant facts of the offences or of the circumstances relevant to the applicant. Subject to two matters, it is not submitted his Honour erred in principle. It is not submitted that any of the individual sentences imposed are, in themselves, excessive, nor is it submitted that the total effective sentences in respect of each of the four groups of offences are, in themselves, excessive.

18 From his sentencing observations, the following is a brief identification of matters personal to the applicant which his Honour saw to be material. The applicant was 35 years of age at the time of sentencing. Before these offences, a long term de facto relationship of the applicant had broken down due, as his Honour observed, in good measure to the applicant's continuing violence to his partner coupled with his constant abuse of amphetamines and alcohol. The present offences had been "fuelled" by amphetamines. The applicant had constantly offended since turning 18, with numerous offences for burglary and some for violence, but no sexual offences. An extensive Children's Court record of the applicant was disregarded by his Honour.

19 The detailed psychiatric, psychological and pre-sentence reports provided some understanding of the motivation for the offences and revealed general agreement among those reporting that the applicant presented a high risk of re-offending unless the applicant, with necessary professional assistance, was successful in addressing significant psychological and behavioural issues.

20 There was little in the way of mitigating circumstances in the applicant's background, and, in his Honour's view, nothing mitigatory to be found in relation to the offences themselves. As will be considered later, his Honour also dealt expressly with the applicant's pleas of guilty and the question of remorse.

21 Two matters are raised by the grounds of appeal. It is contended that his Honour, in imposing cumulative sentences for each of the four groups of offences, failed to have proper regard to the totality of the sentences imposed. Further, it is contended that his Honour failed to give a sufficient discount for the early pleas of guilty and the early admissions to the police. It is convenient to deal with these in reverse order.

22 In the course of his lengthy and detailed sentencing remarks his Honour said:

"There is, however, one matter which will significantly reduce the sentence I would have otherwise passed. You have pleaded guilty by way of fast-track plea at the earliest available opportunity. In the particular circumstances of this case that gives rise to two matters which will significantly modify the sentence. The first is the recognition that a fast-track plea of guilty should normally attract a reduction in sentence, often but not inevitably expressed by way of a specific discount.

The second is that by your plea you have spared the victims, and particularly [JFH and BMN] the considerable ordeal of a trial and the further harm that I think would inevitably have flowed to each of them if you had exercised what is undoubtedly your right and proceeded to a trial.

It is unnecessary for me to find specifically whether or not you are remorseful. You have certainly expressed a degree of remorse to the psychologists and the writer of the pre-sentence report and the letter you wrote, a portion of which you read out today, to your counsel and it certainly appears that you are remorseful. However, remorse can only be carried so far. Set against the gravity of these crimes, the fact that you are now sorry counts for little. The fact that you have spared the victims the further ordeal of a trial, however, counts considerably.

Because of the number and nature of the offences, I do not propose to make a specific percentage reduction to each sentence to reflect both the early plea of guilty and the sparing of the victims from giving evidence. I will, however, take each of those factors into account generally, both in the length of sentence and in determining the totality of the sentence by making some sentences concurrent with others. I do comment, however, that if your conviction had followed a trial, the offences against [BMN] would have merited a sentence of at least 13 years and your offences against [JFH] a sentence of at least 16 years."

23 By these remarks it is obvious that his Honour was well aware of the early pleas of guilty and the significance that ought to attach to that for the purpose of sentencing. As his Honour noted the applicant pleaded guilty to all offences at the earliest possible opportunity. The applicant's admissions to the police, followed by his pleas of guilty, could not be said to be in the face of a compelling prosecution case, as the evidence against the applicant was still being gathered at that time. The pleas of guilty clearly avoided the need for each of the complainants to give evidence and therefore spared them the additional distress and embarrassment of doing so. This was expressly noted by his Honour. His Honour's hesitation over the matter of remorse reflects the tenor of observations in the psychological and pre-sentence reports that were before his Honour, but this left his Honour with the view that the applicant certainly appeared remorseful. His Honour, however, was not prepared to attach significant weight to the issue of remorse, given the gravity of the applicant's conduct in committing the offences. He was, however, prepared to attach considerable weight to the sparing of the complainants from the further ordeal of a trial. In the circumstances of this case I do not see any error of principle or fact in this approach.

24 It has been held that in circumstances such as these a plea of guilty may well attract a discount in sentence of between 25 and 35 per cent; Little v The Queen [2001] WASCA 87 per Malcolm CJ, Wallwork and Anderson JJ at [13]. While it is clear that the weight to be attached to pleas of guilty is a matter that must be assessed in light of all the circumstances of the case, and will vary accordingly, the early pleas entered in this case clearly warranted significant recognition in the exercise of the sentencing discretion.

25 His Honour's expressed intention was to reflect this matter in two ways, the length of the individual sentences imposed and in determining the totality of the sentences, especially by making some concurrent with others. In respect of the individual sentences imposed it is sufficient to concentrate on the longest sentences imposed in respect of each of the four groups of offences. Given the circumstances of each of those it is apparent, in my view, that his Honour has significantly discounted what would otherwise have been an appropriate sentence in each case. His Honour in fact provided two illustrations of this in his observations, as noted above. The illustrations he gave in respect of the complainant's BMN and JFH appear to me to be well founded. What is revealed in each case is a sentence which is at least 25 per cent less than would have been appropriate had there not been a plea of guilty. Further, in respect of each group of offences, all but the most serious offence was ordered to be served concurrently, whereas principle could have justified cumulative sentences for some of the offences.

26 Given these matters I am not persuaded that his Honour failed to recognise adequately the early pleas of guilty of the applicant following, as they did, the admissions made to the investigating police, and the significant benefit of those pleas to the complainants.

27 The observations of the High Court in Mill v The Queen (1988) 166 CLR 59 at 62, 63 are frequently referred to as a convenient statement of the position. The High Court said:

"The totality principle is a recognised principle of sentencing formulated to assist a court when sentencing an offender for a number of offences. It is described succinctly in Thomas, Principles of Sentencing, 2nd ed. (1979) pp. 56-57, as follows (omitting references):

'The effect of the totality principle is to require a sentencer who has passed a series of sentences, each properly calculated in relation to the offence for which it is imposed and each properly made consecutive in accordance with the principles governing consecutive sentences, to review the aggregate sentence and consider whether the aggregate is 'just and appropriate'. The principle has been stated many times in various forms: 'when a number of offences are being dealt with and specific punishments in respect of them are being totted up to make a total, it is always necessary for the court to take a last look at the total just to see whether it looks wrong[']; 'when ... cases of multiplicity of offences come before the court, the court must not content itself by doing the arithmetic and passing the sentence which the arithmetic produces. It must look at the totality of the criminal behaviour and ask itself what is the appropriate sentence for all the offences'.'

See also Ruby, _Sentencing,_3rd ed. (1987), pp 38-41. Where the principle falls to be applied in relation to sentences of imprisonment imposed by a single sentencing court, an appropriate result may be achieved either by making sentences wholly or partially concurrent or by lowering the individual sentences below what would otherwise be appropriate in order to reflect the fact that a number of sentences are being imposed. Where practicable, the former is to be preferred."

28 As was observed by Ipp J in Jarvis v the Queen (1998) 20 WAR 201 at 207:

"The overriding principle is accordingly that the aggregate sentence (even when punishment is being imposed for multiple offences) should fairly and justly reflect the total criminality of the offender's conduct: see Veen v The Queen (No 2) [1988] HCA 14; (1988) 164 CLR 465; Evangelista v The Queen; R v Glenister [1980] 2 NSWLR 597 at 612; Lade v Mamarika [1986] NTSC 32; (1986) 83 FLR 312."

29 In the present case, the learned sentencing Judge set out in his sentencing comments his reasons for determining which sentences should be served cumulatively and which concurrently. In so doing, he identified that on ordinary principles some of the offences in the third group and some in the fourth group which might properly be the subject of sentences cumulative on each other. His Honour did not take this course, however, and in the end concluded:

"There were four sets of offences. The principles of sentence requires separate and accumulated punishment for each set, and in doing so, I do not overlook the totality of that combined sentence."

30 As has been indicated, the offences the subject of this indictment may readily be divided into four distinct groups as has been done earlier in these reasons. Each of the four groups represent offences distinct in time, place and victim from the other three groups. As such, each group, normally, might properly be the subject of separate punishment to be served cumulatively. It is essential, however, that the total criminality of the offender's conduct be assessed, and that the total sentence imposed should reflect that total criminality rather than the mathematical product of sentences appropriate to each separate group of offences, when considered in isolation. It is not altogether clear to me, from the observations of his Honour just noted, that he was approaching the matter in this light.

31 The extreme gravity of the conduct of the appellant is self-evident. In each case the victims were women living alone, although in the case of PFO and BMN a granddaughter was staying with a grandmother who lived alone. The victims were vulnerable. Their homes were the subject of forced intrusion in the night. While theft may also to have been an objective, in each case the applicant turned to sexual assault the moment an opportunity presented itself. He did so without regard to the age of the victim, and pursued his objective with considerable physical violence including the threatened use of a knife, or perhaps in one case a screwdriver. In the two cases in which he was able to overbear the will of his victim, his sexual conduct was repeated and perverse and without regard to the effect on his victims. The observations of his Honour as to the serious and ongoing effects of the applicant's conduct on the five victims, and in particular on BMN and JFH, are not the subject of criticism and are obviously well and truly justified.

32 Inevitably, it is a difficult task to impartially assess the total criminality involved in these 31 offences and to make an assessment of the punishment appropriate to that total criminality. It is also appropriate that this Court should be fully conscious of the discretionary nature of the difficult function of sentencing and show due respect for the responsibility imposed on the sentencing Judge to exercise that discretion. Nevertheless, in this present case, I am left with the clear impression that the total effective sentence of 34 years imprisonment does more than fairly and justly reflect the total criminality of the conduct of the applicant, grave as it is. In my respectful view, the concern of the learned sentencing Judge to separately mark each of the four groups of offences with cumulative sentences has, in the result, produced a sentence which, in totality, is beyond that which is appropriate.

33 As the High Court observed in the passage from Mill quoted earlier, there are two courses which may be followed to avoid such a consequence. Sentences may be made wholly or partly concurrent or individual sentences may be lowered below what would otherwise be appropriate. As the High Court observed, where practicable, the former is to be preferred.

34 In my respectful view an appropriate total sentence in this case is 28 years imprisonment. That could readily have been achieved by the sentences imposed in respect of counts 1 - 7 being served concurrently with each other, rather than the sentences for counts 5 - 7 being served cumulatively on the sentences in respect of counts 1 - 4, which is the effect of the order made by his Honour.

35 The resulting effective sentence of 28 years imprisonment remains a high sentence indeed. I am not aware of a sentence of an equivalent length, in respect of essentially sexual offences, having been imposed in this State. Such an effective total sentence does, however, appear to me to reflect in a fair and appropriate manner the extreme gravity of the 31 offences which the applicant has committed, whilst also recognising, in particular, the pleas of guilty which he entered in this case. I am not of the view that in the circumstances of this case an effective sentence of 28 years imprisonment, with parole eligibility, is one which is properly to be regarded as crushing in the sense relevant to totality. Reference may be made to Vaitos v The Queen (1981) 4 A Crim R 238 cf 257, 276 and 301.

36 For these reasons it is my view that the application for leave to appeal should be granted and the appeal allowed, for the limited purpose of varying what his Honour ordered on 15 January 2003 by deleting the order that the sentences for counts 5 - 7 should be served cumulatively on the sentences for counts 1 - 4. That having been done, the effect of s 88(2) of the Sentencing Act 1995 (WA) is that the sentences imposed by his Honour on 15 January 2003 in respect of counts 1 - 7 will be served concurrently. Otherwise, I would not disturb the sentences imposed on 15 January 2003 in respect of each of the offences or the other orders as to the service of them. For the purpose of clarity, the intention is that the sentences in this case, as varied by this decision, remain sentences imposed on 15 January 2003. The orders for parole eligibility and for service of the sentences to commence from 28 October 2002 remain undisturbed. The result is that the effective sentence is reduced to 28 years imprisonment.

37 MILLER J: I have had the opportunity of reading in draft the reasons for judgment of Parker J. I agree with those reasons and with the order proposed.