Hector v Regina

(b) the sentences imposed were manifestly excessive. 6 Two passages in the Remarks on Sentence are relied on in support of the first ground for leave to appeal. They are as follows: "The offender whilst casing for places to break into, noticed that the light was on in the victim's flat. He approached the kitchen window and saw that the victim was asleep in her bed. He then went to the bedroom window to ensure that she was alone in the flat. After watching her for some five minutes, he was satisfied that she was alone."

and "However it is obvious that these offences, particularly the sexual intercourse without consent, are very serious. The reality is that this was a rape of a defenceless woman who lived alone in her own home in the early hours of the morning in circumstances where the offender knew that she was alone."

The Facts 7 At the sentence hearing before the Judge on 17 December 2002, a statement of facts was tendered without objection and was used as the basis for defining for the Court the circumstances of and surrounding the offences committed on 17 July 2002 to which the applicant had pleaded guilty. 8 The statement of facts, together with the evidence given by the applicant, revealed that the applicant was a drug addict who had been addicted to heroin since about 1989. His record showed that he had been convicted of a number of drug offences, offences against property and offences against individuals that appear to have involved obtaining money for drugs. He also had a series of convictions for offences relating to motor vehicles - including driving while disqualified. He had been released from prison in April 2002, where he had spent some nine months. At some time after his release from prison, he had gone to live with his parents on their farm at Stroud where, according to his mother, he was a good worker. Indeed, she described him as "a workaholic". However after a relatively short time he appears to have tired of the routine of the farm and decided to go into town in order, as he said to the police, "to get pissed, get high," have sexual relations and generally "kick up (his) heels". He told the police that he went to the hotel, got drunk, gambled, got some drugs, had his sex and spent his money. After he had run out of money, he decided to get more by resorting to breaking, entering and stealing. 9 The statement of facts referred to in paragraph 9 above includes the following: "The offender whilst casing for places to break into, noticed that the light was on in the victim's flat. He approached the kitchen window and saw that the victim was asleep in her bed. He then went to the bedroom window to ensure that she was alone in the flat. After watching her for some five minutes, he was satisfied that she was alone." 10 It also revealed a situation in which the victim was scared out of her wits, too frightened to call out and too traumatised to make immediate complaint, especially as the applicant made it obvious that he would watch her from outside her premises after he had left. The details of the sexual abuse to which the victim was exposed need not be set out in this judgment, however its extent was gross, demeaning and frightening. Furthermore, his actions - both sexual and otherwise - arose out of an invasion of the victim's home, that should have been a place of security for her. 11 After he had left the female victim's premises, the applicant went to nearby premises where he broke into the garage and entered the main part of the premises from the garage. While in the premises he took a wallet, a mobile phone and a set of keys. He left those premises, rifled the wallet, and then decided he would take the car from the garage of such premises, as one of the keys that he had taken was the car key. He took the car and successfully decamped, notwithstanding an attempt by the owner of the car to prevent this occurring. 12 He was later found in the front seat of the car, which was then situated in the driveway of premises at some remove from those from which it had been taken. The stereo system was missing from the car, and when questioned about his presence in the car, he immediately proffered a story that he had seen two boys get out of the car and run away, leaving it in the middle of the street. His story was that he had merely driven it into the driveway for safekeeping. The police were called and they found certain housebreaking implements and a knife. 13 When questioned the next day at the Police Station, the applicant initially adhered to his story as to the circumstances in which he came to be in the stolen motor car. Whilst at the Police Station, he was questioned about the allegations of sexual assault on the female victim. He participated in a recorded interview in which he gave graphic details of his sexual encounter with the female victim, asserting that the sex had been consensual and that, in effect, it had been the victim who had seduced him. However, he later indicated that he proposed to plead guilty to all charges, and recanted the allegations that he had made concerning the female victim and the circumstances in which he came to be in the stolen car.

Grounds of Application 14 In sentencing the applicant, the Judge in essence recited the facts from the statement of facts referred to in paragraph 9 above. The first passage in the Remarks on Sentence relied on by the applicant was taken directly from such statement of facts. No error arises out of such reliance. Furthermore, the passage was relevant to the charge of sexual intercourse without consent. The fact that the female victim lived alone and was alone in her flat at the material time, was relevant in relation to the degree of seriousness involved in the sexual offence. The reference stresses that she was more vulnerable because alone. It is appropriate that such a consideration be reflected in the sentence imposed. 15 The same considerations apply to the second passage relied on by the applicant. The reference to the offender knowing that the victim was alone occurs in a sentence that is directed towards the sexual offence. The fact that the victim was alone rendered her "a defenceless woman". This again is relevant to the seriousness of the offence and hence to the sentence to be imposed. This was not a case of a victim who was known to her assailant. This was not a case of an amorous situation that went a given distance by consent and then, at a later stage, without consent. This was not a case of a man mistakenly thinking that the female involved in the intercourse was a consenting party. This was a case of a male forcing himself upon a young woman who was alone and defenceless. 16 The applicant relied on the decision of the High Court in The Queen v De Simoni (1980-1981) 147 CLR 383, placing particular emphasis on the following passages: "…at first sight, it may seem unlikely that the framers of the (Criminal) Code (WA) intended that an offender should be sentenced on the fictitious basis that no circumstance of aggravation existed when it is found by the Trial Judge that such a circumstance did exist, particularly when such a finding is based upon an unchallenged statement of facts made by the prosecutor after the offender has pleaded guilty. However, the general principle that the sentence imposed on a offender should take account of all the circumstances of the offence is subject to a more fundamental and important principle, that no-one should be punished for an offence of which he has not been convicted… The combined effect of the two principles … is that a Judge, in imposing sentence, is entitled to consider all the conduct of the accused that would aggravate the offence, but cannot take into account circumstances of aggravation which would have warranted a conviction for a more serious offence. " (supra at 389 per Gibbs J) 17 and: "At common law, the principle that circumstances of aggravation not alleged in the indictment could not be relied upon for purposes of sentence if those circumstances could have been made the subject of a distinct charge, appears to have been recognised as early as the 18th century." (supra at 389, per Gibbs J) 18 In The Queen v De Simoni (supra), the prisoner had pleaded guilty to stealing an amount of money from the person with actual violence, contrary to the provisions of s 391 of the Criminal Code (WA). In the course of his Remarks on Sentence, the Trial Judge had said that whilst the prisoner had shown some compassion to the victim after the crime had been committed, that had been more because of the realisation of what he had done - namely that he had "struck from behind on the head with a piece of wood a 78 year old woman." On an appeal against the severity of the sentence imposed, the Court of Criminal Appeal allowed the appeal on the ground that the Trial Judge had relied on the fact that prisoner had used personal violence to the victim and had wounded her, and that as a result of the combination of qualification to s 393 of such Criminal Code (which provided for a higher sentence in the event that a person who commits robbery is armed with any dangerous or offensive weapon or instrument at the relevant time) and s 582 of the Criminal Code (WA), such reliance was impermissible, as those fact were circumstances of aggravation that had not been charged in the indictment. On appeal to the High Court, it was held that although the Court of Criminal Appeal had correctly stated the effect of the relevant section of the Western Australian Criminal Code, it had erred in concluding that the Trial Judge had relied on a circumstance of aggravation in imposing the sentence. Gibbs CJ said: "…the manner in which (the Trial Judge) mentioned the fact that the victim was wounded - in relation to the act of the applicant in washing the wound - does not indicate that he relied upon the wounding in deciding the sentence." (supra at 394) 19 From the foregoing paragraph it can be seen that it is not every reference to a circumstance that may amount to aggravation that will infringe the common law principle referred to above, or any equivalent statutory provision of like kind. An analysis of the judgment of Gibbs CJ, with whom Mason and Murphy JJ agreed, shows that if a matter, which might ordinarily be described as a circumstance of aggravation, is taken into account but is not such as to render the offender liable to a greater punishment, then the common law principle referred to above is not infringed, nor is the relevant statutory provision. 20 In the present case, the reference to the female victim being alone was not such as to expose the applicant to a higher penalty. In relation to the higher penalties referred to in ss 61J, 61JA or 61K of the Crimes Act 1900. Under s 61J(2), "circumstances of aggravation" are defined. They do not include the victim being alone. Under s 61JA, no consideration of aggravating circumstances is involved. The gravamen of that offence is that the sexual intercourse takes place in company and involves one of three other elements - none of which include the fact that the victim was alone at the time of the commission of the offence. The offence created by s 61K involves maliciously inflicting actual bodily harm or threatening to inflict such harm with intent to have sexual intercourse. Again, this is not a circumstance of a kind that would be an aggravating circumstance within the meaning of the principle referred to above. 21 The decision in Regina v Booth (NSWCCA, 12 November 1993, unreported) supports the view that, whether or not the principle referred to in The Queen v De Simoni (supra) has been transgressed, can only be answered as a matter of impression formed as a result of a careful, but practical, reading of the entirety of the Remarks on Sentence (see p 19). In the instant case, when this is done I am satisfied that the principle has not been transgressed. In his considered and careful Remarks on Sentence, the Judge clearly distinguished between the sexual offence and the offence against property. In determining that the sexual offence was serious, he took into account the totality of the circumstances, and did so in a way that did not involve a consideration of any offence to which a higher penalty would have attached in consequence of the matters so considered. 22 For the foregoing reasons, I am of opinion that neither of the passages referred to by the Judge in imposing the sentence of eight years with a non-parole period of five years in respect of the offence under s 61I of the Crimes Act 1900 involves error. 23 In my opinion, the first ground on which leave to appeal is sought fails. 24 Although the second ground of the application was that the sentences imposed were manifestly excessive, this ground was supported on the basis that what was described as "the De Simoni error" coloured the Judge's view of the seriousness of the offence under s 61I of the Crimes Act 1900, and that in any event the sentence imposed in respect of such offence was "at or near the very top of the sentencing range". 25 In his Remarks on Sentence, the Judge said: "In the light of the serious nature of the sexual assault, the fact that the offender is not entitled to any leniency because of his criminal history, and the seriousness of the Form 1 matters, had this offender not pleaded guilty, the sentence for the sexual assault, taking into account the Form 1 matters, would have had to have approached the top of the sentencing range. However, I do take into account the fact the offender pleaded guilty. At the stage that he entered his plea, there was a strong Crown case in my view, based on his own admissions apart from anything else, but by his plea he did also obviate the necessity of the victim giving evidence in this matter. I would allow for the pleas 25 percent. It seems to me, however, that, as I say, but for the pleas the sentence on the sexual assault matter taking into account the Form 1 matters, must be close to the top of the range, and allowing for the discount that I have applied it seems to me that the appropriate sentence in that matter is one of eight years imprisonment. Having found special circumstances, I would fix a non-parole period of five years." 26 Two of the matters included in the Form 1 were serious: one carrying a maximum penalty of five years; the other a maximum penalty of 14 years. The first charge - namely the offence of sexual intercourse without consent - was very serious indeed. The applicant invaded the victim's home. The applicant violated the victim's sleeping quarters in the middle of the night. The applicant violated the victim in a gross, demeaning and frightening manner. The nature of the wrong done was serious indeed, and the Judge was correct in saying that the victim "must have been absolutely terrified by the ordeal. The fear of the unknown must have been extremely high." 27 He was also correct in stressing the need for general deterrence and the protection of the community. The nature of the principal crime committed by the applicant calls for a salutary sentence to act as a personal deterrent and a salutary sentence which will operate by way of a general deterrence by demonstrating to those who may be tempted or inclined to commit a like offence that the courts of this State will not tolerate such behaviour, and that when committed it will attract a heavy sentence. 28 Reliance was placed by the applicant on the statistics gathered by the Judicial Commission. These show that, whilst 84% of the cases involve head sentences of between two and six years, 10% involve head sentences of more than 6 years. Furthermore, the head sentence imposed is well below the maximum of 14 years fixed by s 61I of the Crimes Act 1900. Even when the discount of 25 percent is taken into account, the head sentence which would otherwise have been fixed is still well below the maximum penalty provided in respect of the offence. I do not consider that the statistics are such as to make good the applicant's case. Moreover, the applicant's antecedents, related as they were to illicit drugs, together with the fact that the applicant acknowledged his long-term drug addiction and recognised that "he would be an addict for life," amply justified the Judge in finding that the applicant was not entitled to any leniency other than by virtue of his plea of guilty. 29 One further matter was raised at the hearing. The applicant filed an affidavit of 5 May 2003 in which he states that he has been in strict protection since he was sentenced and that he has not been able to undertake any drug and alcohol courses but is undertaking courses in small business, accounting and financial management in the hope of commencing his own business as a plumber on his release. He further states that he has not been charged with any goal offences since he has been in custody. Commendable as these matters are they do not, in my opinion, detract from the conclusion to which I have come above, and are not an adequate basis for reducing the sentences imposed on the applicant in the District Court. I would propose that leave to appeal be granted to the applicant but that his appeal be dismissed. 30 SHELLER JA: I agree that in the written submissions put on behalf of the applicant particular emphasis was placed on the words "where the offender knew that she was alone" in the second of the passages from the Remarks on Sentence which have been quoted. I entirely agree with O'Keefe J that what was said there was said in the context of considering the offence of intercourse without consent. 31 It was put in the written submissions that the sentencing judge had factored this into his consideration when considering the offence of break and enter and on that basis had sentenced as if the offence charged were under s105A(1)(f) of the Crimes Act. In my view, this is not the case and there is nothing in the Remarks on Sentence which would lead one to conclude that the sentencing judge had erred in the manner suggested. 32 For the reasons given, I agree that leave should be granted but that the appeal should be dismissed. 33 JAMES J: I agree with the judgment of O'Keefe J and with the further remarks of the presiding judge. 34 SHELLER JA: The Order of the Court is, therefore, that leave is granted but the appeal is dismissed.

Last Modified: 11/07/2003 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.