Krencej v R [1999] WASCA 20

Court of Appeal (WA)|1999-05-19|Before: Kennedy J, Ipp J, Wallwork J

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

CITATION : KRENCEJ -v- R [1999] WASCA 20

Criminal law and procedure - Sentencing - Stealing - Unlawful detention - Aggravated sexual penetration - Two counts of aggravated robbery - Two counts of attempting to pervert the course of justice - Prisoner 19 years of age at time of offences - Sentences imposed on basis of prosecution's assertions, some of which were denied by the prisoner and which were not the subject of a trial - Sentence of 16 years and 8 months set aside - Sentence of 13 years and 8 months substituted

Australian Coal and Shale Employees' Federation v The Commonwealth [1953] HCA 25; (1953) 94 CLR 621

Bensegger v R [1979] WAR 65

Britten v The Queen, unreported; CCA SC of WA; Library No 940079; 21 February 1994

Parfitt v The Queen, unreported; CCA SCt of WA; Library No 960140; 21 March 1996

R v Langridge (1996) 87 A Crim R 1

R v Weng Keong Chan (1989) 38 A Crim R 337

Yanko v The Queen, unreported; CCA SCt of WA; Library No 960030; 23 January 1996

1 JUDGMENT OF THE COURT: The applicant was presented in the Supreme Court on 2 November 1998 on an indictment containing eight counts. He pleaded guilty to seven of those counts and a nolle prosequi was subsequently entered in relation to the eighth count. The counts to which the applicant pleaded guilty were as follows:

1. On 8 March 1998 at Beldon the applicant, being in the place of Astrid Bethell without her consent, committed the offence of stealing.

2. On the same date and at the same place the applicant unlawfully detained Florecita Barsana Acacio.

3. On the same date and at the same place the applicant sexually penetrated Florecita Barsana Acacio without her consent, at the time being armed with a dangerous weapon, namely a knife, and at the time doing bodily harm to Florecita Barsana Acacio.

4. On the same date and at the same place the applicant stole from Florecita Barsana Acacio with actual violence a sum of money the property of Florecita Barsana Acacio and that at the time he was armed with a dangerous weapon, namely a knife.

5. On the same date and at the same place the applicant stole from Florecita Barsana Acacio with actual violence a motor vehicle the property of Florecita Barsana Acacio and at the time he was armed with a dangerous weapon, namely a knife.

6. On 8 March 1998 at Scarborough the applicant by falsely stating to Brett James Brandhoff that he was in a VB Commodore attempted to pervert the course of justice upon his prosecution for offences of aggravated sexual assault.

7. On the same date and at the same place referred to in the previous count the applicant by falsely stating to Brett James Brandhoff that Darren Walters was the driver of a Holden Apollo vehicle attempted to pervert the course of justice upon his prosecution for offences of aggravated sexual assault.

2 Pursuant to s 32 of the Sentencing Act 1995, the applicant was also dealt with on five charges pending in the Court of Petty Sessions, they being for possession of cannabis, reckless driving, driving without a motor driver's licence, failing to stop after an accident and failing to report an accident. The applicant pleaded guilty to each of those charges.

3 The facts provided to the court by counsel for the prosecution were that, at approximately 5.30am on Sunday, 8 March 1998, the applicant went onto the first complainant's property situated in Marion Court in Beldon. He removed a flyscreen from the kitchen window at the rear of the house, reached his hand through the open sliding window and removed a purse from the breakfast bar. At the time, the complainant was asleep in her bedroom. The applicant did not have permission to enter the premises or to remove any property. The complainant's purse, valued at some $50, was recovered outside the premises, $52 in cash having been removed from it. The money was not recovered. When interviewed by detectives on 17 March regarding this offence, the applicant indicated he did not wish to comment on it. Those were the facts in respect of the count numbered 1 above.

4 A short time later, the applicant jumped a number of fences near the second complainant's house, looking into backyards with a view to stealing any cannabis plants he might find. He found two cannabis plants, which he took away in a towel. At about 6.45am, he entered the rear yard of the second complainant's house in Harrier Way in Beldon. This complainant was a 59 year old woman who was alone in her house when the offences in the counts numbered 2 to 5 above were committed.

5 Counsel for the prosecution stated that, while in the complainant's back yard, the applicant saw her walk out of her house through a side sliding laundry security door. Shortly afterwards, she re-entered the house. The applicant followed her. On entering the house, he went into the complainant's daughter's bedroom where he removed a vest and a cream shirt from a drawer. He wrapped these around his head as a disguise and walked into the complainant's bedroom, where she was getting dressed. He produced a knife and demanded money. He also asked her where she kept her stockings. The complainant indicated a particular drawer, from which the applicant removed some stockings and used them to tie the complainant's hands behind her back and to tie her feet together (count 2).

6 It appears from the medical report that there was considerable blunt force applied to the region of the complainant's left eye, and injuries were inflicted upon her lips and mouth. On the Crown's version of the facts, these injuries were caused as a result of the applicant having punched the complainant in the face. Thereafter, the applicant pulled the complainant's underpants down and lifted her skirt. He removed his belt from his pants, undid them and went on to penetrate the complainant's vagina with his penis (count 3). It was at about that stage that the complainant lost consciousness. She awoke a short time later. The applicant then forced her into the shower recess in her bathroom. She was still fully clothed and bound with the stockings. The applicant turned on the shower tap and left her. He searched the complainant's bedroom, removing some $200 from her purse (count 4). He also removed the keys to the complainant's car. The applicant left the two cannabis plants and the towel previously referred to on the kitchen bench. He then took the complainant's motor vehicle, a Holden Apollo, driving away in it (count 5).

7 As a result of the offences, the complainant suffered swelling to the left side of her cheek near her eye, bruising to her right arm, a bite mark to her left breast and a swollen lip. She was required to undergo surgery as a result of the sexual assault and it was necessary for her to have some eight stitches inserted in the area of her vagina.

8 After leaving the complainant's home, the applicant drove her car through the northern suburbs, eventually going to his cousin's address in Balcatta. There he changed the jeans he had been wearing and put on a pair of shorts which were provided by his cousin. Together, they drove to West Coast Highway in Scarborough, where the applicant, who was still driving the vehicle, collided with two other vehicles in the circumstances referred to later. The applicant left the scene, but was apprehended a short time later. When interviewed, he maintained that he had been in another vehicle, and not in the complainant's vehicle at the time of the collision (count 6). He lied in that way so that he would not be connected with the complainant's car and so linked with the serious offences committed by him earlier on that day. Shortly afterwards, in a further attempt to avoid responsibility for these earlier offences, the applicant again lied to the police officer investigating the traffic accident by naming another person as being the driver of the complainant's motor vehicle at the time of the accident (count 7).

9 When the applicant was interviewed on 9 March 1998, he effectively declined to comment on the events giving rise to counts 2 to 7.

10 In relation to the charges of dangerous driving, which arose out of the collision previously referred to, at approximately 8.50am on the same day, the applicant, with his cousin, drove the complainant's vehicle in a northerly direction along West Coast Highway. At the intersection of West Coast Highway and Manning Street in Scarborough, the applicant attempted to perform an illegal U-turn, causing two other vehicles, which had been travelling in a southerly direction along West Coast Highway, to collide with the vehicle which he was driving. Following the collision, the applicant continued to drive the now damaged vehicle in a northerly direction on the wrong side of West Coast Highway and over a traffic island, stopping the vehicle in a carpark approximately 500 metres away from the scene of the accident. He had made no attempt to stop the vehicle at the time of the accident. He then abandoned the vehicle; but a short time later he was apprehended by the police with the assistance of some members of the public. At the time of the accident, the applicant was not the holder of a valid driver's licence and, indeed, he had never held a licence. At no time did he attempt to ascertain if any person had been injured or to report the accident to the police. The charge of possessing cannabis related to the two cannabis plants previously referred to.

11 The maximum penalties for the charges laid in the Court of Petty Sessions were, in relation to possessing cannabis, a fine of $2,000 or 2 years' imprisonment or both, in relation to reckless driving, a fine of $500 or 3 months' imprisonment, with a disqualification of not less than 6 months, in relation to driving a vehicle without a motor driver's licence, $150, in relation to failing to stop after an accident, $750, and in relation to failing to report an accident, $200.

12 The applicant challenged a number of the facts presented by the Crown Prosecutor. A question was therefore raised regarding the taking of evidence with respect to the disputed facts; but his Honour indicated that there was little point in the circumstances in pursuing this course. The matter was not pressed by the Crown. It follows, however, that it was then necessary for his Honour to proceed to sentence upon the basis that the applicant's version of the facts was correct. Accordingly, the sentencing had to proceed upon the basis that the applicant had not "specifically" punched or deliberately applied any force to the left hand side of the victim's face and that the injuries had been sustained after the act of sexual intercourse, when the applicant was attempting to drag the complainant off her bed, she being at the time still tied up, during the course of which she slipped and hit the side of her head on a chest of drawers. The applicant was adamant that he had not intentionally caused the injuries to the complainant and that what had occurred had not been done for the purpose of rendering the complainant incapable of resistance, but for the purpose of assisting his escape. The applicant also denied that he had seen the complainant coming out of a side door and then going back inside. He claimed that he entered the house because the rear door was open, and he was tempted to look inside the house for money. The knife referred to in the indictment was what his counsel described as a rusty old knife which the applicant thought was a gardening knife. His version of the episode was that the complainant walked out from her bedroom area because she had heard a noise and that there was then a confrontation between them. He asked her for money so that he could buy drugs. His intention in entering the house had been to find money and not to commit a sexual assault. Only after he had tied the complainant up with the stockings had he decided sexually to penetrate her. This is to some extent borne out by the fact that the applicant's initial demand was for money.

13 The learned sentencing Judge apparently overlooked the applicant's denial of having seen the complainant walk out of her house and his denial that he had followed her into her house. He also overlooked the applicant's description of the manner in which the confrontation between the applicant and the complainant had occurred.

14 The evening before the offences were committed by the applicant, he was said to have indulged in amphetamine, smoked "a few cones of cannabis" and drunk "a fair amount" of alcohol, including bourbon and vodka. He claimed that he had not been thinking very clearly or realistically after the act of penetration, when he took the complainant to the shower, as it was said, to "wash her down" and "to wash away the evidence".

15 At the time of the offences, the applicant was some two months short of his 20th birthday. He had previously committed a number of offences of burglary and stealing and one of robbery. He had been placed on probation, which he had breached, and he had been sentenced to terms of imprisonment. He had committed breaches of parole. In particular, it is to be noted that he was still on parole when the present offences were committed.

16 His Honour had the assistance of a pre-sentence report, in which it is revealed that, during the interview in connection with it, the applicant had been unable to believe what he had done, and had expressed deep shame and remorse, and confusion as to how he could have committed such a serious offence. It is said that he was able to recognise the fear and trauma likely to be experienced by the victim, and the violation inflicted upon her. He had no previous convictions for sexual offences.

17 The applicant was born in Perth. His parents separated soon after his birth, and he was raised by his mother and step-father. He had a half-sister. He described relationships within the family as generally good. However, problematic behaviour developed from the age of 13, which, it appears, was closely linked to substance abuse. The applicant was finally asked to leave home. The applicant experimented with drugs from his early teens, his drugs of choice being cannabis, and amphetamines taken intravenously. He has a significant history of substance abuse.

18 The applicant was educated to Year 8, and he described himself as having limited, but functional, literacy and numeracy skills. He has held various unskilled jobs, including working as a ceiling fixer and as a gardener. His longest period of employment was of 18 months' duration. He has few friends in the community. He has no major psychological or psychiatric indications, although he described to the writer of the report a tendency towards impulsiveness, and indicated that he can easily become frustrated if his needs cannot immediately be met.

19 The clinical psychologist, in his report, indicated that it was possible to speculate that the offences resulted from a combination of psychological factors, such as impulsivity, lack of empathy and poor behavioural controls, a high sex drive and a known tendency towards anti-social behaviour, in combination with specific situational influences. The specific situational influences were the use of amphetamines on the evening before he committed the offences. Amphetamines are known to be associated with unpredictable and sometimes violent behaviour. There was also the immediate stimulus of the victim being tied up, which may have served to trigger the attack on the applicant. The psychological assessment indicated a high risk of further non-sexual offending. All the applicant's past offending appears to have been drug-related, and it is suggested that this pattern may prove difficult to break.

20 Up to the time of his remand in custody, the applicant had been living with a partner and her daughter. The relationship came to an end when he admitted his offences.

21 In sentencing, the learned trial Judge described the applicant's offence of sexual penetration as "one of the worst acts of rape that I have ever been called upon to deal with", having regard in particular to the age of the victim, the injuries she received and the fact that the events occurred in her own home. His Honour pointed out that the offences had been committed while the applicant was on parole and when he was 20 years of age. In arriving at the sentences, his Honour adopted the prosecution's statement of facts, notwithstanding that it had been disputed by the applicant that he had followed the complainant into her house, and that he had gone into the complainant's daughter's bedroom where he had removed a vest and shirt from a drawer and wrapped it around him before entering the complainant's bedroom. The applicant's claim that he had entered the house with the intention only of stealing was not challenged; but it was not referred to by his Honour. His Honour adopted a starting point of 20 years' imprisonment, being the maximum sentence for aggravated sexual penetration. From that figure, he deducted 5 years for the pleas of guilty, essentially for the reason that, as a result, the victim was not required to give evidence before a jury, and he sentenced the applicant to 15 years' imprisonment on that count. The deduction so allowed was substantial. The pleas of guilty were not made on the fast track system, although they were made on the applicant's first arraignment. In addition, his Honour imposed a sentence of 8 months' imprisonment for the first count of stealing, a sentence of 5 years' imprisonment for the unlawful detention, a sentence of 1 year's imprisonment for the robbery of the motor vehicle, a sentence of 4 years' imprisonment for the robbery of the money and 1 year's imprisonment on each of the counts of attempting to pervert the course of justice. The two sentences for stealing and for robbery of the motor vehicle were directed to be served cumulatively upon the sentence of 15 years' imprisonment. The balance of the sentences were directed to be served concurrently. His Honour made an order for eligibility for parole in relation to each of the sentences.

22 In connection with the offences referred to in the s32 notice, for not having a motor driver's licence and for failing to stop and failing to report the accident, fines of $100 in each case were imposed, it not being open to his Honour to impose a term of imprisonment. For the remaining offences, a term of 3 months' imprisonment was imposed in respect of each, to be served concurrently with the previous sentences. The effective sentence for all the offences was one of 16 years and 8 months, with eligibility for parole.

23 The applicant has appealed against his sentences, essentially upon the following grounds:

1. The learned sentencing Judge failed to take into account the youth of the applicant.

2. The learned sentencing Judge took into account aggravating facts not admitted by the applicant.

3. The learned sentencing Judge erred in forming the view that the appropriate starting point for the term of imprisonment should be 20 years, being the worst sort of sexual assault.

4. The learned sentencing Judge erred in making the sentence of 1 year's imprisonment for the armed robbery of the motor vehicle cumulative rather than concurrent.

5. The total sentence of 16 years and 8 months' imprisonment with eligibility for parole was so manifestly excessive as to demonstrate error.

24 As is said in Ruby, Sentencing, 4th edn, at 168: "Youth is generally conceded to be a mitigating factor, probably because it discloses the greatest possibilities for reform and because we do not expect so much from youthful judgment". But as the learned author goes on to point out at 169, citing R v Hill [1982] FCA 95; (1982) 6 A Crim R 202: "For the most serious offences, and in particular crimes of violence, the mitigating effects of age are limited". See also Fox and Freiberg, Sentencing : State and Federal Law in Victoria at 463-464. Nevertheless, as R v Hill itself indicates, and as Fox and Freiberg point out at 464: "If imprisonment is inevitable and a long term the norm for the type of crime, the courts will still seek to avoid a crushing sentence by using youthfulness to justify announcing either a lower sentence or a shorter minimum term than would otherwise be indicated". See further, Thomas, Principles of Sentencing, 2nd edn at 195-196.

25 Although the learned sentencing Judge did refer to the age of the applicant, which he noted as being 20 at the relevant time, he did not indicate that he was taking the applicant's age into account in fixing the sentence. In our opinion, it was necessary for him to do so. That he did not treat it as a mitigating factor is made clear by his statement that the applicant's plea of guilty was the only mitigating factor. In the circumstances, a sentence of nearly 17 years' imprisonment for a person who was under 20 at the time of the offences must be regarded as too high, notwithstanding the extremely serious nature of the offences which he has committed, and notwithstanding the fact that counts 2 to 5 related to offences essentially adult in nature, and not in the nature of a youthful escapade or indicating mere youthful misjudgment.

26 So far as the suggested circumstances of aggravation which were denied by the applicant are concerned, we accept that they should not have been taken into account for sentencing because they had not been found by his Honour following a trial of the issues.

27 With respect to his Honour's description of the sexual assault as being the worst sort of sexual assault, although we accept that it was a most serious assault of its kind, we do not consider that it comes into that special category of being the worst sort of sexual assault. Regrettably, numbers of more serious cases have come before this Court. This should not be taken in any way to diminish its seriousness, having particular regard to the age of the victim, the injuries inflicted upon her, the fact that it was committed in her own home by a person armed with a knife, the fact that the victim was bound up and the general callousness of the attack. However, the applicant's challenge to the prosecutor's statement of facts did impact upon the criminality of the offences. The case was no longer one of a planned sexual assault involving pursuing a woman into her home, but one of an "opportunistic" nature, although, of course, so far as the victim is concerned, this made very little difference and was a source of no comfort to her.

28 We can see no error in principle in making the sentence for the armed robbery of the motor vehicle cumulative upon the other sentences. It formed no part of the sexual assault and was properly made cumulative. The majority of the sentences were made to run concurrently, having regard to the totality principle. It is certainly not the case that all sentences should have been ordered to be served concurrently.

29 In our opinion, having regard to all the circumstances, the total sentence of 16 years and 8 months was too high and it should be reduced by 3 years to 13 years and 8 months. We would effect this by reducing the sentence for the aggravated sexual assault to one of 12 years' imprisonment.

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