KEATING -v- THE STATE OF WESTERN AUSTRALIA [2007] WASCA 98 (14 May 2007)

Court of Appeal (WA)|2007-05-14|Before: Steytler P

1 STEYTLER P & McLURE JA: We have had the advantage of reading in draft the reasons for judgment of Miller AJA. The facts, grounds of appeal, evidence and reasons of the sentencing Judge and Pullin JA are detailed in the reasons of Miller AJA and not repeated here.

2 The application before this Court has two aspects. The first is the review of Pullin JA's decision refusing to grant the appellant leave to appeal on either of the two grounds now pursued. The second is an application to amend the grounds by adding a third ground of appeal. The hearing took place upon the basis that, if the application for review was successful and the appellant was given leave to appeal on either or both of the grounds pursued (and, in that event, if he was given leave to amend his grounds by the addition of a further ground, as to which see Barry v The State of Western Australia [2007] WASCA 12 at [24]), the application would be treated as the hearing of the appeal.

4 It is often convenient to regard appeals as falling within three broad categories (although there is no definitive classification of appeals: Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194 at [11] per Gleeson CJ, Gaudron and Hayne JJ). The first is an appeal in its so-called "strict sense", being one decided solely on the law and the evidence as it stood at the date of the decision appealed against. The appellate court, in such a case, may only set aside the decision under appeal and, if appropriate, substitute for it the decision that should have been made: Allesch v Maunz (2000) 203 CLR 172; Coal and Allied at [12]. The second is a so-called "appeal by way of rehearing", in which the appellate court can, but usually does not, receive further evidence and its powers are not restricted to making the decision that should have been made at first instance: Coal and Allied at [13]. The third is a so-called "appeal by way of hearing de novo", in which the matter is heard afresh and decided on the evidence presented at the hearing: Allesch; Coal and Allied at [14]. As Gleeson CJ, Gaudron and Hayne JJ pointed out in Coal and Allied at [14] (citations omitted):

"Ordinarily, if there has been no further evidence admitted and if there has been no relevant change in the law ... a court or tribunal entertaining an appeal by way of rehearing can exercise its appellate powers only if satisfied that there was error on the part of the primary decision-maker ... That is because statutory provisions conferring appellate powers, even in the case of an appeal by way of rehearing, are construed on the basis that, unless there is something to indicate otherwise, the power is to be exercised for the correction of error ... However, the conferral of a right of appeal by way of a hearing de novo is construed as a proceeding in which the appellate body is required to exercise its powers whether or not there was error at first instance ... "

5 The context in which the issue arises in this appeal is provided by s 23, s 27 and s 28 of the Criminal Appeals Act 2004 (WA), s 57 and s 61 of the Supreme Court Act 1935 (WA) and r 8 and r 43(2) of the Supreme Court (Court of Appeal) Rules 2005 (WA) ("Rules").

6 Section 57(1) of the Supreme Court Act provides that the Court of Appeal shall be constituted by two or more judges of appeal. Section 57(2) of that Act provides that, when hearing and determining an application or appeal under Pt 3 of the Criminal Appeals Act (which deals with appeals from superior courts), the Court of Appeal shall be constituted by two or more judges of appeal if the application or appeal relates solely to sentence and otherwise by three or more (so long as there is an uneven number).

7 Section 23 of the Criminal Appeals Act provides that a person who has been convicted of an offence on indictment may appeal to the Court of Appeal against conviction or sentence. Section 28 provides that this is done by lodging with that Court an application for leave to appeal which sets out the grounds of appeal. Section 27(1) of the Criminal Appeals Act provides that the leave of the Court of Appeal is required for each ground of appeal in an appeal under Pt 3 of that Act. Section 27(2) of that Act provides that the Court of Appeal must not give leave to appeal on a ground of appeal unless it is satisfied the ground has a reasonable prospect of succeeding. Section 61(1) of the Supreme Court Act provides that, in relation to an appeal or application before the Court of Appeal, a single judge of appeal may exercise any jurisdiction or powers of the Court of Appeal that are conferred on a single judge of appeal by rules of court. Rule 43(2)(c) of the Rules provides that a single judge has jurisdiction, in a criminal appeal, to exercise the Court of Appeal's functions under s 27 of the Criminal Appeals Act. Section 61(3) of the Supreme Court Act provides that a person who is dissatisfied with a decision or order made by a single judge of appeal may apply to the Court of Appeal to set aside or vary the decision or order. Rule 8(1) of the Rules provides for the form of an application of that kind.

8 It is clear that Parliament intended that as part of the appellate process it would be open to a single judge finally to dispose of an appeal. The power conferred upon a single judge by s 61(1) as amended by the Acts Amendment (Court of Appeal) Act 2004 (WA) is in that respect significantly broader than s 61 as it previously was. Prior to its amendment, s 61(1) provided that in any cause or matter pending before the Full Court, any direction incidental thereto "not involving the decision of the appeal" could be given by a single judge, while s 61(2) provided that such orders could be discharged or varied by the Full Court.

9 The upshot of all of this is that single judges of the Court of Appeal, acting under delegated jurisdiction, can, and ordinarily do, determine applications for leave to appeal under s 27 of the Criminal Appeals Act. Because a failure to obtain leave in respect of at least one of the grounds of appeal results in the dismissal of the appeal (s 27(3) of the Criminal Appeals Act), s 61(3) of the Supreme Court Act provides an important safeguard for appellants in criminal matters.

10 That brings us to the nature of the review. That issue has previously been considered, but not finally decided, by this Court. In Pezzino v The State of Western Australia [2006] WASCA 131 at [10] Wheeler JA suggested that, in a review of this kind, the task of the court might well be that of evaluating for itself, afresh, the grounds pressed by the appellant. However, because nothing turned in that case on the distinction, if any, between a review of that kind and the task of the court on an appeal in its strict sense, she found it unnecessary to reach any final conclusion. Roberts-Smith JA, in Pezzino (at [54]), took "the correct principle to be that on a review under r 8 the Court of Appeal is required to make its own assessment of the grounds in accordance with s 27 of the Criminal Appeals Act". The third Judge, Martin CJ, although agreeing with everything that had been said by each of the other Judges (at [60]), preferred to leave the question open for another day because there had been no considered argument concerning it. (See also Barry at [14] per Steytler P with whom McLure and Pullin JJA were in agreement.)

11 The issue has also been considered elsewhere, albeit in the context of different statutory regimes.

12 In Wentworth v Wentworth (1994) 35 NSWLR 726 the Court of Appeal in New South Wales considered the issue in the context of s 46 of the Supreme Court Act 1970 (NSW). Section 46(2)(b) provided that a judge of appeal might exercise the powers of the Court of Appeal "to make any order or give any direction in any appeal or other proceedings, but not an order or direction involving the determination or decision of the appeal or other proceedings". Section 46(4) provided that the Court of Appeal "may discharge or vary a judgment given by a Judge of Appeal, or an order made or direction given by a Judge of Appeal". Mahoney JA, before turning to the nature of the review provided for, commented generally on the power given to a single judge of appeal by s 46. He said (at 728 - 729) that the power was wide, subject only to the specific limitations imposed by the section. However, he added that in practice much of the work done by a single judge of appeal consisted of interlocutory applications, sometimes involving issues of principle, but often involving minor matters such as extensions of time, striking out of appeals for want of prosecution and the like. He said that it was matters of this kind which are conventionally dealt with by a single judge of the court exercising the power given by s 46.

13 After mentioning that s 46(4) did not state in terms whether, on a review, the Court of Appeal dealt with the application by rehearing ab initio or on some more restricted basis, and after referring to Knaggs v Solicitors' Statutory Committee, unreported; CA SCt of NSW; 8 October 1990 (in which Kirby P had said (at 6) that it seemed to him that the claimant must show that the primary judge's discretion had miscarried), Mahoney JA said (at 729 - 730):

"In my opinion, the nature of the proceedings on such review should be inferred from the context in which the review takes place and the purpose of the section. One of the main purposes of the section was to relieve the burden imposed upon the Court of Appeal by the extensive nature of its jurisdiction. If the application to the Court of Appeal were to be dealt with as on a re-hearing ab initio, then the effect of the section would be not to reduce but, in relevant cases, to increase the burden upon the Court. Except in cases excluded by s 46 - a full hearing of an appeal or an application for leave to appeal or the like - it would be open to every applicant to have a hearing before a single judge of the Court and then, as of right, an unrestricted second hearing before the Court. I infer from the purpose of the section and the nature of relief available ('discharge or vary') that this was not the legislative intention."

Then, after referring to a particular form of rehearing provided for by s 75A of the New South Wales Act, he went on to say (at 730):

"The form of review provided by s 46(4) is different. It is not described as an 'appeal' and, I think, it is in its nature not an appeal. The Court of Appeal, acting under s 46(4), does not provide that the Court of Appeal shall set aside the order made by the judge because there was an error in it and, having set it aside, itself exercise the jurisdiction which the judge exercised. The subsection appears to assume that the order made by the judge was validly made; it provides that the court does not re-exercise the power exercised by the judge, as such. It provides merely that the judge's order may be 'discharged' or 'varied'. And no provision is made in relation to evidence such as is ordinarily made for this kind of re-hearing. It is, of course, wrong to place too much weight upon, or to draw too much by way of inference from, the terms 'discharge or vary'. But such terms suggest, I think, that the legislature did not see what the Court of Appeal should do as in the nature of an appeal: at least, an appeal of this kind, analogous to that in s 75A."

14 Mahoney JA then considered the judgment of the Court of Appeal in England in Wren v Braunston Canal Services Ltd, unreported; Court of Appeal (England); 23 November 1990, in which, when considering a discretionary decision of a single judge of that court, Lord Donaldson MR said that, to succeed, the applicant "must show that the Lord Justice misdirected himself in principle or that his order was plainly wrong". Mahoney JA went on to say:

"The power exercised by this Court under s 46(4) is not the exercise of a power on 'appeal'. It is, in my opinion, not the same as the power exercised by the judge: it is a separate power given by statute involving, and involving only, the discharge or variation of that judge's exercise of the ordinary powers of the Court of Appeal. But, in the circumstances, I think that the approach adopted in Wren's case by the English Court of Appeal to an order made by a member of that court should be adopted for the purposes of s 46(4). Such a view, in my opinion, gives effect to the purpose of the provision to which I have referred and is in accordance with the terms of s 46(4)."

15 Handley JA agreed with Mahoney JA. However, in the course of doing so, he specifically remarked (at 733) that the orders under challenge were interlocutory orders in a matter of practice and procedure. The third Judge, Powell JA, concluded (at 736 - 737) that what was contemplated by s 46(4) was that the person seeking to vary or discharge an order made by a single judge should demonstrate that the primary judge's discretion had "clearly miscarried".

16 In Apidopoulos v Sheriff of Victoria [2000] VSCA 104; (2000) 1 VR 476 the Victorian Court of Appeal was concerned with s 11(4) and s 11(5) of the Supreme Court Act 1986 (Vic). Section 11(4), in conjunction with r 64.26 of the rules of court made under that subsection, conferred jurisdiction upon a single judge of appeal. Section 11(5) provided that, where a single judge of appeal had exercised jurisdiction adversely to a party, that party may approach the Court of Appeal to discharge or vary the order made by the single judge. A single Judge of the Court, Chernov JA, made a discretionary order (refusing to reinstate an appeal that was taken to have been abandoned) and the appellant applied to discharge or vary that order. The Court (Winneke P, Phillips and Buchanan JJA) said (at [11]) that, in exercising the power given by s 11(5):

"[T]his court is not, we think, at liberty to treat the matter as if it were hearing it afresh. We are being asked to interfere with the exercise of the judge's discretion and we should only do so if it can be demonstrated that that discretion has clearly miscarried."

Then, after referring to Wentworth, the Court went on to say (at [18] - [20]):

"In our view s 11(5) of the Supreme Court Act 1986 should be accorded a similar construction to that which has been given by the Court of Appeal in New South Wales to the counterpart provisions in the Supreme Court Act of that State. It would, we think, be contrary to the intention of the legislature to construe s 11(5) as treating an application to discharge or vary an order made by a single Judge of Appeal as a hearing de novo or an appeal in the nature of a re-hearing.

Having regard to the nature of the orders which can be made by a single Judge of Appeal pursuant to the powers invested by r 64.26, it is far more consonant with the scheme of the legislation - which, as in New South Wales, contemplates the efficient and economic deployment of the Judges of Appeal - to treat a single Judge of Appeal's discretionary orders made pursuant to s 11(4) as liable to be discharged or varied under s 11(5) only if the discretion can be clearly demonstrated to have miscarried.

It is true that an exercise of a single Judge of Appeal's powers pursuant to the Act and the rules can have significant consequences to a party, particularly where, as in this case, the effect of the order will mean the end of the appeal. That consequence, however, does not destroy the character of the order made by Chernov JA as an exercise of a discretion made in a matter of practice or procedure. Unless it can be demonstrated that the discretion has miscarried, this court should not interfere."

17 In Gooch v The Queen [2002] NTCCA 3 the Court of Criminal Appeal of the Northern Territory was concerned with s 410 and s 429 of the Criminal Code (NT). Section 410 provided that a person may only appeal to the Court of Criminal Appeal against sentence with the leave of the court. Section 429(1) provided that the powers of the court to grant leave to appeal might be exercised by any judge of the court. Section 429(2) provided that, if a judge should refuse an application, "the appellant shall be entitled to have the application determined by the Court". The Court (Martin CJ, Bailey and Riley JJ) held (at [5]) that, although the circumstances of an application for leave made to a single judge will differ from those of an application made to the Court when the application and the appeal are heard together, the test to be applied was the same on each occasion. While those comments do not specifically address the nature of the review proceedings, they were made in a context in which leave to appeal had been refused by a single judge and the applicants had sought to have the application determined by the Court. The test applied by the Court was that applied by the single Judge, namely whether there was an arguable case. It is consequently implicit in what was said and done by the Court that it treated the application as a hearing de novo.

18 In R v Raad [2006] VSCA 67; (2006) 161 A Crim R 63 the Victorian Court of Appeal dealt with s 567(d) and s 582 of the Crimes Act 1958 (Vic). Section 567(d) provided that a person convicted in the County Court on indictment or for a relevant summary offence may appeal to the Court of Appeal, with the leave of the Court of Appeal, against the sentence passed, unless it is one fixed by law. Section 582 provided that the powers of the Court of Appeal to give leave to appeal might be exercised by a single judge but that, if a judge of appeal refused an application to exercise any such power in the applicant's favour, the applicant "shall be entitled to have the application determined by the Court of Appeal". Callaway JA (with whom Maxwell P and Eames JA agreed, Buchanan and Vincent JJA having concurred for different reasons) said (at [16]) that the procedure that had been adopted by the Court of Appeal since 1999 was that most applications for leave to appeal against sentence that were not conjoined with applications for leave to appeal against conviction had first been heard by a single judge of appeal pursuant to s 582. He said, in this respect, that applications of the former kind had "then proceeded to a court of three, as appeals, if leave is granted or, still as applications, if the applicant exercises the right conferred by the concluding words of s 582".

19 That brings us back to the position in Western Australia. It is not in dispute that the review or appeal provided for by s 61(3) of the Supreme Court Act is one by way of rehearing. That fact is reflected in r 25 of the Rules. The question is whether it is a rehearing de novo, without the need to identify error on the part of the single judge, or a rehearing at which further evidence may be admitted but in which error on the part of the single judge must be shown before the appellate powers can be exercised.

20 The starting point is necessarily the language of the relevant provisions of the Supreme Court Act which is, as we have said, the statute conferring the right of appeal or review. Section 61(3) of that Act, as we have also said, gives to a dissatisfied person the right to apply to the Court of Appeal to set aside or vary the decision or order with which he or she is dissatisfied. The right encompasses a very broad range of decisions or orders. Rule 43, as would have been anticipated by the legislature, confers a broad jurisdiction on single judges of appeal. This encompasses, at one end of the spectrum, interlocutory matters of practice and procedure of a relatively insignificant kind and, at the other end, the making of orders that might be dispositive of the appeal as, for example, the exercise of powers under s 27(2) of the Criminal Appeals Act.

21 Because s 61(3) of the Supreme Court Act encompasses appeals or reviews from such a wide range of decisions or orders, and because there is nothing in its terms to suggest that the setting aside or variation of the order of the single judge can be exercised in the absence of error, it would be surprising if the legislature had contemplated that error was not required to be shown: Coal and Allied at [14]. A construction which gave that effect to the section would defeat the obvious intention of relieving the burden on the Court of Appeal imposed by the extensive nature of its jurisdiction (see, in respect of the jurisdiction conferred by s 27(2) of the Criminal Appeals Act, Samuels v Western Australia [2005] WASCA 193; (2005) 30 WAR 473 at [37]). That is so for the reasons given by Mahoney JA in Wentworth at 729 - 730 (where he also placed some reliance on the fact that the relief available was to "discharge or vary" the decision of the primary judge, words that are no different in effect from "set aside or vary", used in s 61(3)) and by the Court in Apidopoulos at [18] and [19]. It is true that, unlike the statutory regime in New South Wales as it was when considered in Wentworth, a single judge of appeal in this State does have the power to make a decision or order disposing of the appeal. However, the legislature could not have contemplated that there should be different kinds of appeal depending upon the nature of the decision or order appealed against: see Coal and Allied at [18]. Had it done so, it seems to us that it would have said so expressly. It consequently seems to us that the appeal contemplated by s 61(3) of the Supreme Court Act, although by way of rehearing, is not one by way of hearing de novo and that error on the part of the single judge of appeal must be shown. We should add that in our opinion what was said in Gooch and in Raad is of no assistance in this State, given the different statutory language (each of s 429(2) of the Criminal Code (NT) and s 582 of the Crimes Act 1958 (Vic) provides that the dissatisfied applicant is entitled to have "the application" determined by the appellate court).

22 That brings us to the present case, which, as we have said, involves an appeal from a decision of a single judge of appeal under s 27(2) of the Criminal Appeals Act. That should be considered in the context that a decision under s 27(2) does not involve a discretion in the ordinary sense of that word, being that of allowing the decision-maker some latitude as to the choice of the decision to be made: Coal and Allied at [19].

23 As we read s 27(2), given its context and evident purpose, leave to appeal must be given if the Court is satisfied that a ground has a reasonable prospect of succeeding (albeit the section is couched in negative terms, requiring the Court not to give leave unless satisfied that the ground has a reasonable prospect of succeeding). While there may be some limited scope for reasonable minds to differ on the issue of whether an individual ground does or does not have a reasonable prospect of succeeding, the test is an objective one. Consequently if, on reviewing the decision of the single judge of appeal, the Court of Appeal assesses the ground or grounds differently than the single judge, finding that there is a reasonable prospect of success, it is difficult to imagine that, even if no express error is found, the Court would not find implied error, entitling it to set aside or vary the decision of the single judge.

24 Before leaving this issue, we should add (although no point has been raised in this respect) that the requirement of control and supervision of delegated jurisdiction referred to in Harris v Caladine [1991] HCA 9; (1991) 172 CLR 84 at 95 would be satisfied by an appeal by way of rehearing, if that requirement is applicable in this context (see in this respect Briggs v Glentham Pty Ltd (1992) 8 WAR 339 at 349).

25 Grounds 1 and 2 both effectively assert that the total sentence of 24 years' imprisonment is manifestly excessive.

26 As the appellant is challenging the total sentence rather than the terms of the individual sentences, the correct basis for the challenge is the totality principle. There are two limbs to that principle. The first limb requires a judge who is sentencing an offender for multiple offences to ensure that the aggregate of the sentences appropriate for each offence is a just and appropriate measure of the total criminality of the offending as a whole: Postiglione v The Queen (1997) 189 CLR 295 at 307 - 308 per McHugh J. The second limb of the totality principle is that the court should not impose a "crushing" sentence. A crushing sentence is one that deprives the offender of any reasonable expectation of useful life after release. An aggregate sentence may be inappropriately long under the first limb even if it cannot be described as crushing: Jarvis v The Queen (1993) 20 WAR 201 at 216 per Anderson J.

27 We propose to start with ground 2 which is to the effect that the total sentence of 24 years is disproportionately long because the sentencing Judge failed to give any or any sufficient weight to the reports of Mr Cicchini and Dr Patchett. A failure to give any consideration to a relevant sentencing factor is an express error and is an independent ground for reviewing a discretionary decision that does not depend on establishing that the total sentence infringes the totality principle. However, a failure to expressly refer to all relevant factors in sentencing reasons does not establish a failure to consider those factors: Bessell v The Queen, unreported; CCA SCt of WA; Library No 980199; 4 March 1998; Bienke v Minister for Primary Industries and Energy (1996) 63 FCR 567 at 576 - 577. In the circumstances of the sentencing in this case there is no basis for concluding that the sentencing Judge failed to consider the reports.

28 A failure to give adequate weight to a relevant factor which failure does not satisfy the very high threshold test for express error (see Vagh v The State of Western Australia [2007] WASCA 17 at [76]) is a particular of the claim that an individual sentence is manifestly excessive or that a total sentence is disproportionately long. The appellant contends that the sentencing Judge failed to give sufficient weight to the opinions of Mr Cicchini and Dr Patchett that the appellant should continue to receive sex offender treatment in prison, the implication being that there remained a possibility of rehabilitation. The opinion of Professor Thomas-Peter was that engaging the appellant in treatment made it harder to manage him, was an expensive drain on resources, was unlikely to result in reducing his risk of reoffending to a manageable level and carried the prospect of him being released into the community. This is the only matter on which there was a conflict of expert opinion. On our reading of the sentencing Judge's reasons, she preferred the opinions of Mr Cicchini and Dr Patchett on this subject. The sentencing Judge said she would expect that the appellant would go on, as always, being treated in a humane way with the ability for improvement. However, the experts were united in the view that the appellant was at a very high risk of sexual re-offending which provided a proper foundation for the sentencing Judge's expectation that he would never be released until he was too physically infirm to be a risk to anyone. We would dismiss ground 2.

29 The first ground of appeal is to the effect that the total sentence infringed the totality principle. Senior counsel for the appellant contended that in circumstances where the appellant was still serving a term of life imprisonment and an indeterminate sentence, little if any weight should have been given to the appellant's record of prior offending. The principled basis for the submission was not clearly identified.

30 On 3 October 1979 the appellant was sentenced under s 326 of the Criminal Code (WA) to life imprisonment for rape. Section 326 was repealed by the Acts Amendment (Sexual Assaults) Act 1985 (WA) and the penalty for aggravated sexual penetration became a maximum term of 20 years. That remains the maximum penalty for the offence. In 1985 the appellant was ordered to be detained during the Governor's pleasure under s 662(b) of the Criminal Code for further serious sexual offences. However, it was and remains the case that a person sentenced to life imprisonment or to an indeterminate sentence under s 662 may be released on parole by order of the Governor. At the time of the appellant's sentencing in 1979 and 1985 the Offenders Probation and Parole Act 1963 (WA), later called the Offenders Community Corrections Act 1963 (WA) ("1963 Parole Act"), applied. By s 40C and s 40D of the 1963 Parole Act the Governor had the discretion to direct that a prisoner detained under s 662(b) of the Criminal Code or a prisoner sentenced to life imprisonment be released from prison on parole.

31 The 1963 Parole Act was repealed by the Sentencing (Consequential Provisions) Act 1995 (WA) ("Consequential Provisions Act") and replaced by the Sentencing Act 1995 (WA) and the Sentence Administration Act 1995 (WA) ("1995 Administration Act"). Section 86 (which deals with life imprisonment) and s 91 (which deals with indefinite detention) of the Consequential Provisions Act provide that s 40C and s 40D of the 1963 Parole Act continue to apply to prisoners sentenced before the commencement of the Consequential Provisions Act but that any release of those persons on parole was governed by specified provisions of the 1995 Administration Act.

32 In 2003, the 1995 Administration Act was repealed by the Sentencing Legislation Amendment and Repeal Act 2003 (WA) ("2003 Amendment and Repeal Act") and replaced by the Sentence Administration Act 2003 (WA) ("2003 Administration Act"). Clause 13 of Sch 1 of the 2003 Amendment and Repeal Act provides that if immediately before its commencement a person to whom s 86 or s 91 applies is in custody, then on or after commencement s 86 and s 91 continue to apply save that specified provisions of the 2003 Administration Act now apply instead of the specified provisions of the 1995 Administration Act. Thus, s 86 and s 91 of the Consequential Provisions Act (which continue the operation of s 40C and s 40D of the 1963 Parole Act) continue to apply to the appellant but under Sch 1 cl 13(5) and cl 13(9) of the 2003 Amendment and Repeal Act:

(a) any release of the person on parole in respect of the sentence is to be made by means of a parole order made by the Governor under Part 3 of the 2003 Administration Act;

(b) the parole period for the parole order is that provided by s 25(3) or s 27(3) of the 2003 Administration Act; and

(c) Pt 3 Div 6 to Div 11 and Pts 4 to 10 of the 2003 Administration Act apply to and in respect of the person and the parole order.

33 The effect of the various statutes is that the release of the appellant from prison in respect of the sentence of life imprisonment or the indeterminate sentence is to be by means of a parole order made by the Governor under Pt 3 of the 2003 Administration Act.

34 Although the sentences the subject of this application are to be served concurrently with the life term and indefinite sentence (s 88(1) and s 88(5) of the Sentencing Act) the imposition of the finite sentences has the consequence that the appellant cannot be released from prison until he has served the total sentence of 24 years (2003 Administration Act, s 10).

35 There is no reason in principle why the fact that the appellant was serving a sentence of life imprisonment and an indefinite sentence at the time of sentencing for his most recent offences should affect the relevance of, or weight to be accorded to, the appellant's prior record when sentencing the appellant for the recent offences. Under s 7(2) of the Sentencing Act an offence is not aggravated because the person has a prior record. The term "aggravating factors" is defined in s 7(1) to mean factors which, in the court's opinion, increase the culpability of the offender. However the provisions of the Sentencing Act do not impinge upon what was said by a majority of the High Court in Veen v The Queen (No 2) [1988] HCA 14; (1988) 164 CLR 465 (Koushappis v The Queen [2001] WASCA 18; Benter v The State of Western Australia [2005] WASCA 245). Mason CJ, Brennan, Dawson, and Toohey JJ said in Veen (at 477 - 478):

"[T]he antecedent criminal history of an offender is a factor which may be taken into account in determining the sentence to be imposed, but it cannot be given such weight as to lead to the imposition of a penalty which is disproportionate to the gravity of the instant offence. To do so would be to impose a fresh penalty for past offences ... The antecedent criminal history is relevant, however, to show whether the instant offence is an uncharacteristic aberration or whether the offender has manifested in his commission of the instant offence a continuing attitude of disobedience of the law. In the latter case, retribution, deterrence and protection of society may all indicate that a more severe penalty is warranted."

36 As stated in Benter, the effect of s 7 of the Sentencing Act in light of the remarks of the High Court in Veen is that prior criminal conduct cannot aggravate the offence for which the offender is being sentenced; the sentence must be proportionate to the gravity of the offence and the circumstances of its commission; and that within the limits of a proportionate sentence for the offence, a person's prior criminal conduct is relevant when considering the sentencing aims of punishment, deterrence and the protection of society. The considerations relevant to the determination of the appropriate sentence for each offence are also taken into account in the determination of the appropriate measure of the total criminality of the offending as a whole: Woods v The Queen (1994) 14 WAR 341 at 352 per Anderson J.

37 It is the case that the totality principle applies when a sentencing court is dealing with a defendant convicted of multiple offences, even where more than one sentencing court is involved. In this case the sentences under appeal are to be served wholly concurrently with the earlier sentences. In Jarvis v The Queen the Court unanimously held that matters of parole and remission are not relevant to the sentencing exercise. That is to say, when a judge is applying the totality principle in determining the overall sentence that should be imposed on an offender who has committed multiple offences, no regard should be had to the possibility that the offender might be released on parole for the earlier offences. Ordinarily this principle operates to the advantage of a defendant. Although it does not operate to the appellant's advantage in this case, the principle continues to apply. There was no challenge to the correctness of Jarvis. Thus, the possibility of an administrative decision ordering the release of the appellant on parole in respect of the sentence of life imprisonment and the indeterminate sentence is not relevant when considering totality. We intend to approach the question of whether the total sentence breaches the totality principle in accordance with the principles in Veen and Jarvis.

38 As required by the 2003 Amendment and Repeal Act the sentencing Judge imposed terms of imprisonment for each offence that were two-thirds of the fixed term that would have been imposed before the commencement of that amending Act. The total sentence of 24 years equates to 36 years under the former sentencing regime.

39 We were not provided with details of the time spent in custody by those sentenced to life imprisonment for rape under the former provisions of the Criminal Code. Even so, we accept that the total sentence of 24 years is very severe and well above the highest fixed term imposed in this jurisdiction since the Criminal Code was amended in 1985 to provide for a maximum term of 20 years. The severity of the sentence is underlined when regard is had to the fact that the appellant made early pleas of guilty and also to the fact that all of the offences were committed against one victim during a single course of conduct, albeit one lasting some hours. For these reasons it seems to us that Pullin JA should, with respect, have concluded that grounds 1 and 2 had a reasonable prospect of succeeding and that leave should have been given in respect of each of these grounds.

40 However, the circumstances of the appellant's offending are clearly in the worst category of case. The offences were committed against a prison education officer whilst the appellant was on a pre-release programme in a minimum security prison environment. The facts disclose sustained sexual and physical violence of such savagery and brutality as to mark the offending as exceptional. What the nature and circumstances of the offending in the context of his prior record disclose is that the appellant is and will remain at very high risk of re-offending, that he poses a grave danger to women, including those working in the prison system, and that great weight must be accorded to the sentencing objective of personal deterrence, which objective can only be achieved by a very lengthy term of imprisonment. The determinative sentencing factor in this case is the need to protect the community. We are satisfied that in all the circumstances, including the appellant's fast track plea of guilty and his antecedents, the total sentence of 24 years does not offend either limb of the totality principle.

41 Consequently, although we would grant leave on both grounds upon the basis that the test provided for by s 27(2) of the Criminal Appeals Act has been satisfied (as to which see Samuels at [56]) we would dismiss these two grounds.

42 As to the proposed additional ground of appeal, which seeks to challenge reliance by the sentencing Judge on what was described as a "victim impact statement" made by the superintendent of the Bunbury Regional Prison, we agree generally with what has been said by Miller AJA subject to what follows. As Miller AJA points out, the sentencing Judge appears to have taken this statement into account in the course of the sentencing process. However, it seems to us (as it does to Miller AJA) to have been a very minor factor. If the events surrounding the appellant's offending behaviour revealed weaknesses in the prison system and led to the removal of these weaknesses, any additional hardship to others resulting from this is not something which should, in our opinion, lead to a greater punishment being imposed upon the appellant than would otherwise have been the case. However, even assuming in the appellant's favour that the statement of the prison superintendent did have some significant influence in the ultimate disposition arrived at by the sentencing Judge, we would decline to interfere with the total sentence imposed. For the reasons already given, and notwithstanding the severity of the total sentence imposed, this is not a matter in which, in our opinion, a different sentence should have been imposed: s 31(4)(a) of the Criminal Appeals Act.

43 While we would grant the application for leave to appeal on this ground, we would consequently not be prepared to uphold the ground.

44 It follows that we would grant the appellant leave to appeal in respect of grounds 1 and 2 and in respect of the further ground introduced by amendment, but that we would dismiss the appeal.

45 MILLER AJA: The appellant pleaded guilty in the District Court at Perth on 27 July 2005 to an indictment which contained one count of deprivation of liberty, one count of assault occasioning bodily harm, three counts of threat to kill, two counts of threat with intent to compel, 10 counts of aggravated sexual penetration without consent and two counts of aggravated indecent assault. He was sentenced by Kennedy CJDC on 15 September 2005 to a total period of imprisonment of 24 years. The sentences on the various counts were as follows:

46 The sentences imposed on counts 1, 2, 9 and 14 were directed to be served cumulatively. Although the learned sentencing Judge did not say so, the other sentences are to be served concurrently with the sentence imposed on count 8: Sentencing Act 1995 (WA), s 88(2). All sentences were to be served concurrently with a life term previously imposed upon the appellant: Sentencing Act, s 88(5).

47 Although the learned sentencing Judge did not specify the date from which the sentences were to take effect, the certificate of final outcome shows the date of final outcome as 15 September 2005 and the sentences therefore commence on that day. The appellant was denied eligibility for parole and will therefore be required to serve 24 years' imprisonment, with effect from 15 September 2005.

48 The record of convictions of the appellant reveals that, on 3 October 1979 in the District Court at Perth, he was sentenced to life imprisonment for the crime of rape. In the Supreme Court at Perth on 23 April 1985, he was convicted of a number of offences, including rape and two counts of indecent assault. He was ordered to be detained during the Governor's pleasure pursuant to s 662(b) of the Criminal Code (WA). At the relevant time, that section provided that when any person was convicted of any indictable offence, the Court before which such person was convicted might if it thought fit, having regard to the antecedents, character, age, health or mental condition of the person convicted, the nature of the offence or any special circumstances of the case, without imposing any term of imprisonment upon him sentence him to be committed forthwith to prison, and to be detained there during the Governor's pleasure.

49 The sentence of imprisonment imposed in the District Court on 3 October 1979 was to be served in accordance with the provisions of the Offenders Probation and Parole Act 1963 (WA). At the relevant time, s 37(2)(b)(iii) of the Act provided that a Court should not fix a minimum term in respect of a term of imprisonment imposed on a person for life. Section 42(1) of the Act provided that the Governor might, by order in writing, direct the release from prison on parole, at the time specified in the order on such terms and conditions and for such a period not exceeding five years as the Governor thought fit.

50 A person serving a sentence of life imprisonment in 1979 could apparently be released by order of the Governor at any time. Later, such an order could not be made at any time prior to the expiration of seven years from the date upon which the sentence of life imprisonment had been imposed.

51 The present position is set out in the judgment of Steytler P and McLure JA. By reason of various amendments to sentencing legislation, at this time the release of the appellant from prison in respect of the sentence of life imprisonment or the indeterminate sentence can only be by means of a parole order made by the Governor under Pt 3 of the Sentence Administration Act 2003 (WA).

52 The application for leave to appeal under s 27 of the Criminal Appeals Act 2004 (WA) came on for hearing before Pullin JA on 29 March 2006. Four proposed grounds of appeal were put forward. They were (particulars omitted):

"1. The learned sentencing Judge erred when she imposed a finite term of imprisonment of 24 years that was manifestly excessive in all the circumstances such as to demonstrate error.

The learned sentencing Judge erred when she failed to place any or sufficient weight upon the reports of Mr Cicchini and Dr Patchett that were before the Court such that the sentence imposed was manifestly excessive.
...
The learned sentencing Judge erred when she failed to place sufficient weight upon the Appellant's remorse, as reflected in his pleas of guilty, such that [sic the] sentence imposed was manifestly excessive.
If the Court concludes that each of the Grounds of Appeal fail individually, the combination or aggregation of the defects identified in the Grounds above means there has been a substantial miscarriage of justice ... ."

53 Pullin JA dismissed the application for leave to appeal (Keating v The State of Western Australia [2006] WASCA 65). He dealt with each ground in turn in the following way:

54 It appears that the argument before Pullin JA on this ground was based upon the contention that the effective sentence of 24 years' imprisonment had been arrived at by a starting-point of 45 years, reduced by 9 years for a plea of guilty and then further reduced by one-third in accordance with the transitional provisions pursuant to the provisions of the Sentencing Legislation Amendment and Repeal Act 2003 (WA) Sch 1 cl 2(1). As Pullin JA pointed out, at [8], this is not the way in which the appellant was sentenced. He was sentenced "with conventional methods of sentencing by setting an appropriate sentence for each offence after taking into account the transitional provisions and the plea of guilty ... and then applying totality principles and [arriving] at the final sentence".

55 It also appears that the main argument put forward in support of the first ground of appeal was that the offences were all part of one transaction. This submission was dismissed by Pullin JA, and rightly so. His Honour pointed out that it would have been quite inappropriate to apply the "one transaction rule" in this case, as the appellant had deliberately planned the offences against the female complainant and carried them out systematically, one after another, over a period of some hours whilst the complainant was in fear of her life and whilst the appellant was armed with a knife throughout.

56 It is significant that the ground was not argued in the way in which it was argued before this Court, namely, that the sentence was manifestly excessive by reason of its length alone.

57 Pullin JA was of the opinion that the first ground of appeal had no reasonable prospect of succeeding and leave was refused accordingly.

58 Pullin JA noted that the learned sentencing Judge had placed reliance upon a report of Professor Thomas-Peter. His Honour noted also that counsel for the appellant had, at the hearing before the learned sentencing Judge, placed no particular emphasis upon the reports of Mr Cicchini and/or Dr Patchett. Only counsel for the prosecution had made specific reference to them.

59 Pullin JA concluded that it was not possible for the learned sentencing Judge to refer to all of the material relevant to sentencing and no error had been demonstrated by the learned sentencing Judge's failure to make specific reference to those reports such that there were no reasonable prospects of success in relation to the ground. It was dismissed.

60 This ground has not been pursued in this Court and it is unnecessary to refer to it in any detail. Pullin JA concluded that there was a clear indication in the sentencing comments that the learned sentencing Judge had reduced the sentence because of the plea of guilty and he therefore found that there was no reasonable prospect of success in relation to the ground.

61 This ground has not been pursued in this Court. Pullin JA dismissed it on the basis that no other ground of appeal had been shown to have any reasonable prospect of success.

Nature of the review of the decision of Pullin JA

62 I agree with the joint reasons of Steytler P and McLure JA which conclude that an appeal from a decision of a single judge of appeal under s 27(2) of the Criminal Appeals Act is an appeal by way of rehearing rather than a hearing de novo. The intent of the package of legislative changes of which the Criminal Appeals Act was part is clear. The requirement for leave to appeal is clearly intended to promote the aim of controlling the workload of the Court: Samuels v Western Australia [2005] WASCA 193; (2005) 30 WAR 473 at [37] per Steytler P, Wheeler and Roberts-Smith JJA. It is consistent with this intent that an appeal under s 27(2) of the Criminal Appeals Act should be limited to an appeal by way of re-hearing.

63 Before this Court, the appellant sought to review the decision of Pullin JA in relation only to grounds 1 and 2 of the proposed grounds of appeal. However, an additional ground of appeal was proposed. Leave was granted to the appellant to seek leave to include that additional ground of appeal at the hearing of the appeal. The ground is that the sentence imposed was manifestly excessive, having regard to fresh/new evidence that has become available since the appellant was sentenced. That evidence is said to be the report of the Hon Dennis Mahoney AO QC, Special Inquirer, who reported in November 2005 on an Inquiry into the Management of Offenders in Custody and in the Community.

64 In ch 7 of Mr Mahoney's report, there is reference to the fact that, on the morning following the escape of a prisoner on 29 March 2005, all prisoners participating in pre-release programmes in minimum security prisons were returned to maximum security. The relevance of this is said to be that the learned sentencing Judge when sentencing the appellant made reference and relied upon "as an aggravating factor" the comment in a victim impact statement from the superintendent of Bunbury Regional Prison that it was due to the appellant that some prisoners were not permitted to go to minimum security environments, who, prior to 16 March 2005, would have been able to do so.

65 I would grant leave to the appellant to include this additional ground of appeal. I would not categorise it as either fresh or new evidence, but rather allow the inclusion of the additional ground of appeal as a challenge to the accuracy of some of the material relied upon by the learned sentencing Judge in the course of her sentencing comments. Although the additional ground comes some considerable time after the proposed grounds of appeal were required to be filed, no prejudice has been occasioned to the respondent by the inclusion of this ground.

66 The facts of this case reveal a sustained and brutal attack by the appellant on the senior education officer within the Bunbury Prison complex. The details are contained in Annexure A to this judgment. This annexure is a confidential document, available only to counsel for the State and the appellant. The appellant is to be at liberty to read the annexure, but will not be able to retain a copy. Any person seeking access to the document must apply to the Registrar of the Court of Appeal for that access.

Submissions on behalf of the appellant at sentencing

67 Counsel for the appellant told the learned sentencing Judge that the appellant basically agreed with the facts outlined by the prosecution. There were said to be matters of detail that he thought were somewhat different, but he did not wish to contest anything that had been said. What was put to the learned sentencing Judge was that the appellant had snapped and only after he had committed the offences did he appreciate what "an appalling thing" he had done, and what harm he had caused to the complainant. It was submitted that he recognised the seriousness of what he had done and had expressed remorse. He did not seek to minimise the seriousness of what he had done.

68 It was submitted by counsel for the appellant that psychological material and background material before the Court revealed the events in the appellant's life which had led to the commission of the offences. They were not put forward to minimise the offending, but as an explanation. Reference was made to pre-sentence and psychiatric reports and the learned sentencing Judge made the observation that she "[had] more material than I think I have ever had on anyone".

69 Counsel for the appellant made reference to the question of rehabilitation. He pointed out that no steps were taken to rehabilitate the appellant for a number of years, but processes were eventually put in place. He had experienced difficulties in therapy and had been removed from one programme. This had put his readmission into the programme back for some years. It was conceded by counsel for the appellant that there were no favourable antecedents of the offender, but that he was a product of "those things that occurred around him". It was conceded that a finite term of imprisonment without parole was inevitable. It was conceded also that there was a risk of the appellant reoffending and it was said that "Everyone recognises that".

70 Counsel for the State responded by referring to reports of Professor Thomas-Peter and Dr Patchett, noting that Dr Patchett agreed with Professor Thomas-Peter that it was difficult to see any prospect of effective treatment for the appellant. He thought, however, that it was worth pursuing further lines of treatment. Counsel for the State submitted that the only mitigating factor in favour of the appellant was his plea of guilty which was a fast-track plea.

71 Counsel for the appellant made a very short reply. He submitted that rehabilitation of the appellant and efforts to continue that rehabilitation should continue. It was put that the appellant had shown capacity for self-improvement.

72 The learned sentencing Judge began by making reference to the offences which were the subject of the indictment and the period of time over which those offences had been committed on 16 March 2005. Her Honour said that it was unnecessary to recount the facts again, but pointed out that the complainant was a "fine and decent woman" who had been "deliberately publicly degraded and humiliated and sexually abused over several hours". She did not accept that the complainant's life had been destroyed, but, rather, that the courage she had shown would enable her to "triumph over this".

73 The learned sentencing Judge noted that the complainant did not wish to put in a victim impact statement. She stated, however, that she must have suffered a terrible experience.

74 There was a victim impact statement from the superintendent of Bunbury Regional Prison. Although described as a victim impact statement by the learned sentencing Judge, it is difficult to understand how exactly the superintendent could have been a victim of the offence. Nevertheless, the learned sentencing Judge quoted from the statement, particularly a passage in it that revealed that the impact of the appellant's behaviour was without precedent and by far the most serious and damaging incident that had occurred in the Department of Justice from its inception. The effect was said to have spread through all prisons, all staff and all prisoners. Families of staff had been affected. Throughout the State prisoners had been affected by reason of the fact that some were now not permitted to go to minimum security environments where perhaps prior to 16 March 2005 this would have been so. It was said that those serving life or indeterminate sentences, of which there were many at Bunbury Regional Prison, were now in a state of flux and wondering what the future held for them. I will come back to this statement when dealing with the proposed additional ground of appeal.

75 The victim impact statement from the superintendent concluded by saying that the actions of the appellant were "an act of betrayal of many people, especially those that have supported him and have worked towards helping him gain eventual release from the prison".

76 The learned sentencing Judge traced the appellant's history. She accepted that he had experienced a terrible childhood and had been himself the victim of sexual abuse. She took into account his plea of guilty on the fast-track system and mentioned his record of previous offences for which there were sentences of a life imprisonment and an indeterminate sentence. In making this reference, there is no suggestion that her Honour thought the previous record was such as to aggravate the circumstances of the commission of the offence, but only that, as a matter of record, this was the appellant's background. Of course, under s 7(2)(b) of the Sentencing Act the offences committed by the appellant could not be aggravated by the fact that he had a criminal record. Nevertheless, the fact that he had previously been sentenced to life imprisonment and an indeterminate sentence for sexual offences could not be ignored. It was all relevant to his antecedents.

77 The learned sentencing Judge concluded by making reference to the report of Professor Thomas-Peter, whom she said had not seen the appellant "on this occasion", but had seen him many years earlier. Her Honour placed some emphasis upon the fact that the professor described the appellant as an "overt sadistic rapist whose history indicates that opportunity is more influential in his offences than emotional turmoil and stress". Her Honour also noted that the professor considered that the appellant would be very hard to manage in the long run. I will refer in more detail to Professor Thomas-Peter's report.

78 The learned sentencing Judge did, however, appreciate that the appellant had to be treated. He had to be treated in a "humane way" and her Honour noted an "ability for improvement". I take this observation to mean that the learned sentencing Judge concluded that there would be rehabilitative treatment prescribed for the appellant and that there was still the possibility of improvement.

79 The learned sentencing Judge indicated that she would not expect the appellant to ever be released until he was too physically infirm to be a risk to anybody. She then proceeded to impose sentences on each count on the indictment, leading to an effective sentence of 24 years' imprisonment without eligibility for parole. When asked for clarification by the prosecutor whether reductions had been made for the plea of guilty and the "transitional provisions" (the requirement to reduce each sentence by one-third in accordance with the provisions of the Sentencing Legislation Amendment and Repeal Act), the learned sentencing Judge indicated that she had.

80 It is appropriate to deal with the grounds of appeal in reverse order.

81 The proposed additional ground seeks to challenge the learned sentencing Judge's reliance on the impact statement of the superintendent of Bunbury Regional Prison.

82 It would appear from the material which has been put before the Court that the "Mahoney Inquiry" did conclude that, by reason of the escape of a prisoner named Edwards on 29 March 2005, all prisoners participating in pre-release programmes in minimum security prisons were returned to maximum security and a decision was made to suspend all recommendations for the inclusion of life or indeterminate sentenced prisoners in pre-release programmes.

83 To the extent that the superintendent considered that the appellant's behaviour on 16 March 2005 was responsible for those serving life or indeterminate sentences being in a state of flux, it appears that he must have been wrong. Nevertheless, one can imagine that the appellant's behaviour on 16 March 2005 had serious ramifications within the Bunbury Regional Prison and particularly so for persons serving life or indeterminate sentences.

84 The State has not sought to put forward any clarification as to what the superintendent of Bunbury Regional Prison meant when he wrote that the events of 16 March 2005 had affected prisoners throughout the State and, in particular, precluded them from minimum security environments. If (as it seems) he was in error, and it was in fact the escape of Edwards on 29 March 2005, that occasioned this development, the learned sentencing Judge relied on information which was not entirely correct.

85 However, it seems clear to me that in the context of the sentences imposed upon the appellant in this case, whatever ramifications there may have been thought to be within Bunbury Regional Prison by reason of his behaviour, that could not have been a significant factor in the calculation of the ultimate sentences. To me, the learned sentencing Judge was simply recognising that within Bunbury Regional Prison and perhaps the prison system generally, the appellant's behaviour as a sentenced prisoner towards an education officer within a prison was likely to have widespread ramifications. That much is obvious.

86 Whilst, therefore, I am prepared to accept that the superintendent of Bunbury Regional Prison was in error in his conclusion that some prisoners were precluded from going to minimum security environments by reason of the behaviour of the appellant and that the future of many life or indeterminate sentenced prisoners was in a state of flux, any error in that regard could not, in my view, have led to any error in the sentencing process. It cannot be demonstrated that the sentences imposed upon the appellant were in any way aggravated by what I see to be a minor consideration. Whilst it is true that the learned sentencing Judge made reference to the subject, I am not persuaded that the sentence imposed was manifestly excessive by reason of any error that there may have been in the information upon which she relied.

87 I would grant leave to appeal on the proposed additional ground of appeal but dismiss the appeal.

88 This ground contends that the learned sentencing Judge failed to place any or any sufficient weight upon the evidence of Mr Cicchini and Dr Patchett.

89 It is true that the learned sentencing Judge did not make reference to the reports of either of those persons. However, she did make it clear in the course of submissions that she had a substantial volume of material before her and (by inference) had considered it. She was referred to the report of Dr Patchett by the prosecutor.

90 Mr Cicchini's report is to the Senior Community Corrections Officers at Casuarina Prison and appears to be dated 21 June 2005. It is a psychological report. Mr Cicchini is attached to the Prisons Division of Offender Services within the Department of Justice.

91 For the purposes of this appeal, it is sufficient to refer to the summary at page 26 of the report. The conclusions reached by Mr Cicchini were in effect:

(a) the appellant has deep-seated feelings of helplessness and vulnerability and a highly dependent nature arising from inimical childhood experiences involving maternal separation as well as physical and possible sexual victimisation;

(b) since adolescence he has developed an affinity for deviant sexual fantasies of a sadistic kind involving domination of females which he has periodically enacted by offending;

(c) stress from external sources and the development of a dysfunctional mental dependency on the victim re-aroused feelings of childhood impotence which in turn promoted rage and the re-emergence and indulgence of violent sexual fantasies;

(d) the appellant has undertaken extensive psychological and sex offender treatment over a number of years which was thought to have resolved his psychological disturbances;

(e) his reoffending has indicated that regression occurred in response to stresses experienced and further work is required. He impresses as being motivated to continue working to rehabilitate himself from his self-perceived sexual deviance;

(f) he is considered to have a high risk of sexual reoffending pending further development in his coping repertoire;

(g) therapeutically he requires assistance to help him focus more on his inner processes and decision-making and less on external stress factors.

According to Mr Cicchini, the appellant shows remorse and is disappointed with himself for having hurt the victim in the present case, for failing in his efforts to rehabilitate himself and letting down those who supported him.

92 Dr Steven J R Patchett was, at the relevant time, Acting Director of the State Forensic Mental Health Services. He reported to the learned sentencing Judge on 20 June 2005. The opinion expressed in that report began with the statement that, in regard to psychiatric issues relating to the appellant and his offending, Dr Patchett could offer "little assistance to the Court".

(a) there is no evidence that the appellant suffers from a treatable mental illness that might help to explain his propensity to offend in such an extreme manner;

(d) there is no specific pharmacological intervention available;

(e) psychological interventions have shown limited success;

(f) time is likely to be the most beneficial healer in the appellant's case, as is so often the case in such personality disordered individuals;

(g) whilst the appellant has made gains in the "personality dimension", those gains do not translate into hoped for risk reduction with regard to violent sexual offending;

(h) reduction of testosterone has not been shown in the past to be conclusive of universal beneficial result and it is especially disappointing with "rapists";

(i) it would, however, be reasonable to recommend that if the appellant is agreeable, a trial of antiandrogen medication over a long period of time in combination with a raft of other psychological treatment interventions would be worth pursuing.

94 The report upon which the learned sentencing Judge placed emphasis in her sentencing comments was the report of Professor B A Thomas-Peter dated 19 August 2005. It is described as a "Risk Assessment Report". Professor Thomas-Peter is a Chartered Clinical Psychologist and Chartered Forensic Psychologist. He is Director of Psychological Services at Reaside Clinic and the Honorary Professor of Psychology in the School of Psychology at the University of Birmingham.

95 The professor's report indicates that he had seen and reported on the appellant after examining him in December 1993. His report of 19 September 2005 drew on an enormous volume of material, details of which are contained in the introductory pages of the report. They included eight volumes of Offender in Custody files, two volumes of Serious Offender Management Committee files, three volumes of Offender Service Treatment files, two volumes of Parole Board files, three volumes of Criminal Justice Service files and the reports of Mr Cicchini and Dr Patchett. The appellant chose not to allow Professor Thomas-Peter to interview him, although there had been an interview of several hours' duration in December 1993. There had been no contact since that time.

96 The report of Professor Thomas-Peter without annexures consists of some 19 pages. Conclusions include:

(a) psychological and other staff had applied themselves diligently and professionally to the task of rehabilitation of the appellant;

(b) he had thoroughly engaged in the therapy process over a lengthy period of time, which was a remarkable achievement;

(c) apparent progress encouraged many, including the appellant himself, to believe that further rehabilitation was possible;

(d) however, the changes seen in him were superficial. He had learned the concepts, skill and terminology, but they had little emotional resonance for him;

(e) he had received high levels of interest and support, but retained a capacity to offend that could be readily initiated;

(f) he constitutes a very high probability of reoffending against women and the seriousness of that offending is likely to be grave;

(g) the combination of personality disorder and deviant sexual interest is most worrying. He is an overt sadistic rapist, whose history indicates that opportunity is more influential in his offences than emotional turmoil and stress;

(h) although his libido may have waned a little as he has grown older, it is very unlikely that he will ever be without the overt capacity to violate women in the particular way of his choosing;

(i) he should not be allowed to participate in any circumstances where he could isolate a woman;

(j) engaging him in treatment makes it harder to manage him in the long run. It is an expensive drain on resources, unlikely to result in reducing risk to a manageable level and carries the prospect of him being released into the community.

97 Counsel for the appellant contended that the learned sentencing Judge overlooked the content of the reports of Mr Cicchini and Dr Patchett. There is no specific reference to their reports in the learned sentencing Judge's comments, but there is reference to the report of Professor Thomas-Peter. His report was described as "the most recent psychiatric report", which it was.

98 However, the learned sentencing Judge's failure to refer in detail to the reports of Mr Cicchini and Dr Patchett does not mean that she failed to take notice of them. She indicated in the course of submissions that she had a substantial volume of material before her and reference was made in a general sense by counsel for the appellant to these reports and specifically by counsel for the prosecution to the report of Dr Patchett.

99 If there was any difference between the reports of Mr Cicchini and Dr Patchett on the one hand and Professor Thomas-Peter on the other, it was that the first two still favoured continued treatment toward rehabilitation of the appellant, whereas the professor questioned whether engaging in further treatment would make it harder to manage the appellant in the long run, making reference to the expensive drain on resources and the unlikelihood of any reduction in risk to a manageable level.

100 Notwithstanding the professor's assessment, the learned sentencing Judge did acknowledge that the appellant had the "ability for improvement". She expected him to be treated in a humane way. I interpret that to mean that he would be given continued treatment of one form or another.

101 Counsel for the appellant submitted that this comment meant only that the appellant should be treated in a humane way within the prison system, rather than by way of rehabilitation. In my view, the learned sentencing Judge's clear statement that the appellant had "ability for improvement" indicates that she was aware of the possibility yet remaining that further treatment might assist in his rehabilitation.

102 I see no error in the learned sentencing Judge's selection of the observations of Professor Thomas-Peter in her sentencing comments. She clearly had all the other material before her and was well aware of it. There is no ground of appeal suggesting that the reasons were inadequate. In the circumstances of the case, it was not necessary for there to be the detailed reference to the reports of Mr Cicchini or Dr Patchett that I have made in these reasons. Her Honour was not saying that there was no hope for rehabilitation, but rather that there was always the possibility that the appellant might "improve" and therefore be rehabilitated.

103 Although Pullin JA refused leave to appeal on ground 2, I would grant leave to appeal, but dismiss the appeal on this ground. In my view, Pullin JA erred in concluding that there were no reasonable prospects of success in relation to the ground.

104 This ground challenges the effective sentence of 24 years' imprisonment as manifestly excessive. Senior Counsel for the appellant, who exercised the right of reply on behalf of the appellant, submitted that the case has enormous significance in this State because there has never been a finite sentence of 24 years imposed on a sexual offender and such a sentence is so high as to be patently manifestly excessive. The fact that the sentence is without precedent is not a reason for questioning it. The facts of this case are themselves without precedent.

105 The sentence of 24 years' imprisonment is a long sentence. It is a 36-year sentence before the application of the one-third statutory reduction.

106 No attack has been made on any of the individual sentences imposed by the learned sentencing Judge. It must be acknowledged, however, that those imposed on counts 8 to 17 were very severe sentences. They were 9 years in each case, or 13 years 7 months under what is sometimes termed the "old law".

107 The challenge to the overall sentence is based upon the fact that the learned sentencing Judge failed to take sufficient account of the "totality principle". It is the accumulation of cumulative sentences on counts 1, 2, 9 and 14 that effectively leads to the challenge.

108 Whilst counsel for the appellant submitted that the totality principle had not been taken into account by the learned sentencing Judge, that submission cannot be sustained. No specific reference was made to "totality", but it is apparent by selecting accumulation of the sentences on counts 1, 2, 9 and 14 that the totality principle was well and truly in the focus of the learned sentencing Judge.

109 The principle has been described in the High Court in Mill v The Queen (1988) 166 CLR 59, at 63, in the following terms:

"The totality principle has been recognized in Australia. In Reg v Knight (1981) 26 SASR 573, at 576 the Full Court of the Supreme Court of South Australia (Walters, Zelling and Williams JJ) said, in a joint judgment:

'it seems to us that when regard is had to the totality of the sentences which the applicant is required to undergo, it cannot be said that in all the circumstances of the case, the imposition of a cumulative sentence was incommensurate with the gravity of the whole of his proven criminal conduct or with his due deserts. To use the language of Lord Parker LCJ in Reg v Faulkner (1972) 56 Cr App R 594, at 596, "at the end of the day, as one always must, one looks at the totality and asks whether it was too much"'."

110 The principle has also been discussed in many other cases. A succinct analysis of it in this Court is contained in Jarvis v The Queen (1993) 20 WAR 201, where Ipp J, at 206 - 207, said:

" ... in taking a 'last look' at the total imprisonment imposed, the court will continue to apply the principle that the sentence should be proportionate to the degree of criminality involved. That principle is, after all, basic to the law of sentencing: see Wicks v The Queen (1989) 3 WAR 372 at 379-380. The crushing effect of a term of imprisonment is merely one of the mitigating factors that is to be taken into account when determining whether a particular term of imprisonment is proportionate to the criminality evinced.

While the subjective effect of a cumulative sentence upon a particular individual is plainly relevant, it cannot be regarded as of paramount importance. The difficulty expressed in Vaitos (at 301) by O'Bryan J with the concept that a richly deserved sentence should be reduced because the offender may feel crushed by it aptly illustrates its limitations as a mitigatory force.

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."

111 I am prepared to accept the statement of Senior Counsel for the appellant that the 24-year term imposed upon the appellant in this case is the longest sentence which has been imposed in this State for sexual offences. However, the effective sentence must be considered against the background of the maxima applicable for the various offences committed by him. Counts 8 to 17 on the indictment were the most serious offences. They were offences against s 326 of the Criminal Code, which is the offence of aggravated sexual penetration without consent. It carries a maximum term of 20 years.

112 As Pullin JA pointed out in the leave application before him, had the learned sentencing Judge accumulated each and every sentence imposed upon the appellant, the sentences would have totalled 119 years. Such a sentence is clearly inconceivable. The sentence of 24 years resulted from an application of the totality principle and an attempt to reflect the total criminality of the appellant's conduct.

113 The range of offences committed by the appellant on 16 March 2005 were undoubtedly within the worst category of sexual offences and offences associated with sexual offending. This much was conceded by Senior Counsel for the appellant during argument of the appeal.

114 It is always possible to imagine a worse case, although in the present instance it is perhaps difficult to think of any worse scenario. Nevertheless, the guiding principle is that expressed by Burt CJ in Bensegger v The Queen [1979] WAR 65, at 68:

"A maximum sentence prescribed by statute is not reserved for the worst offence of the kind dealt with by it that can be imagined. If such were the case it could never be imposed as the addition of further non-existing but aggravating circumstances would never be beyond the reach of imagination. The true rule as I understand it is that the maximum sentence should be reserved for the worst type of case falling within the prohibition or, as it is expressed by Dwyer CJ in Reynolds v Wilkinson (1948) 51 WALR 17, at 18, 'for the worst cases of the sort'. That expression should be understood to be marking out a range and an offence may be within it notwithstanding the fact that it could have been worse than it was."

115 Although the sentences imposed upon the appellant in the present case were severe and the effective sentence of 24 years is unprecedented in cases of this nature, the fact remains that this was an extreme case. The learned sentencing Judge expressed the view that she would not expect the appellant to ever be released until too physically infirm to be a risk to anybody. At his present age of 47 years, he will be 70 years before he will be eligible to be released. There is no guarantee that he will then be released. What his degree of physical infirmity will be at that time is unknown, but there are many people aged 70 years who are physically well. This case is all about the protection of the community. The sentences under review in this case take into account the issues of deterrence and protection of the community. Not only that, but they take account of the gravity of the offences themselves and the effect on the victim.

116 Account has been taken of the appellant's plea of guilty which, in truth, is to be regarded primarily as facilitating the course of justice. There is an element of acceptance of responsibility present and there is a suggestion of remorse contained within the various reports, but essentially the importance of the plea of guilty is the facilitation of the course of justice: Cameron v The Queen (2002) 209 CLR 339, at 343. The circumstances of the case are such that the appellant could never realistically have defended the allegations.

117 Ground 1 of the grounds of appeal does not suggest that the learned sentencing Judge acted upon any wrong principle, allowed any extraneous or irrelevant matters to guide or affect her, or that she mistook the facts or failed to take into account some material consideration: House v The King (supra), at 505. What is suggested is that the sentence is unreasonable or plainly unjust and there has been a failure properly to exercise the discretion which the law reposed in the learned sentencing Judge: House (supra), at 505.

118 The effective sentence was undoubtedly an extremely long one. It is longer than any other sentence to which we have been referred. That does not, of itself, make it manifestly excessive in all the circumstances such as to demonstrate error. The particular circumstances of this case are such that it fell into the worst category of offences and a very long sentence was undoubtedly called for. The factors of deterrence, just punishment and the protection of the community weigh heavily in that consideration. The maximum sentence which could be imposed for the offences of aggravated sexual penetration must also be borne in mind. So must the importance which the administration of criminal justice places upon the discretion which the law permits to the sentencing Judge: Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665, at [15].

119 I do not consider that the effective sentence of 24 years can be said to be so unreasonable or plainly unjust that this Court should interfere with it. I consider that the effective sentence of 24 years "fairly and justly reflect the total criminality of the offender's conduct": Jarvis v The Queen (supra), per Ipp J, at 207. I would grant leave to appeal on the first ground of appeal, but dismiss the appeal. In my view Pullin JA erred in refusing leave to appeal. There were, in my opinion, reasonable prospects of success in relation to ground 1.

Offenders Probation and Parole Act 1963(WA)

Sentencing Legislation Amendment and Repeal Act 2003(WA)

Acts Amendment (Sexual Assaults) Act 1985(WA)

Sentence Administration Act 1995(WA)

Court (Court of Appeal) Rules 2005

Sentencing (Consequential Provisions) Act 1995(WA)

Acts Amendment (Court of Appeal) Act 2004(WA)

Offenders Community Corrections Act 1963(WA)

Sentencing Act 1995(WA)

Sentence Administration Act 2003(WA)

Administration Act 2003

At a glance

Court

Decision date

Before

Source

Judgment (162 paragraphs)

Nature of the review of the decision of Pullin JA

Submissions on behalf of the appellant at sentencing

Legislation Cited (15)

Cases Cited (18)