LNV -v- THE STATE OF WESTERN AUSTRALIA [2021] WASCA 203 (2 December 2021)

4 The second term was imposed upon the appellant in the Supreme Court by McGrath J on 2 November 2017 for two offences of arson in respect of the property of JR's mother. For these offences, the appellant received a total effective sentence of 4 years 6 months' imprisonment, with eligibility for parole, to be served cumulatively upon the sentence imposed by Stone DCJ. The appellant has not appealed against this sentence.

5 In respect of the offending against JR, Petrusa DCJ ordered that the total sentence she imposed be served cumulatively upon the sentences imposed by Stone DCJ and McGrath J. As a result, the appellant is subject to a total effective sentence of 16 years 6 months' imprisonment, with eligibility for parole, to commence on 20 April 2016. He will become eligible for parole on or about 19 October 2030. At this time, he will be 67 years of age.

6 The appellant, who is self‑represented in this appeal, relies upon two grounds of appeal. The effect of these grounds is to allege that the total effective sentence of 16 years 6 months' imprisonment infringed both limbs of the totality principle.

7 In our opinion, there is no merit in the grounds of appeal and the appeal should be dismissed. What follows are our reasons for these conclusions.

Summary of all the offences committed by the appellant

8 It is necessary to set out the facts of all the offences committed by the appellant. We will do so in the order that they were dealt with.

9 In relation to the childcare centre offending dealt with by Stone DCJ, the appellant was convicted on his pleas of guilty of five offences, all of which were committed on 19 April 2016. The offences were committed against two children, a boy, A, and a girl, J. Count 1 alleged that the appellant unlawfully detained A. Count 2 alleged that the appellant unlawfully detained J. Count 3 alleged that the appellant sexually penetrated A. Counts 4 and 5 alleged that the appellant sexually penetrated J.

10 The facts of the offending were described by this court in its reasons for dismissing the appellant's application for leave to appeal against sentence in these terms.

11 The appellant was born on 14 September 1963. He was aged 52 at the time of the offending.

12 The boy victim, A, was born in March 2011. The girl victim, J, was born in May 2011. When the offending occurred, A was aged 5 and J was aged 4.

13 On 19 April 2016, at about 11.00 am, the appellant entered a fenced area in a playground at a supervised childcare facility in North Perth. A staff member of the facility noticed the appellant and asked him to stop smoking. At about 11.20 am, the appellant enticed A and J to leave the facility with him.

14 The appellant walked with the children to his parents' home elsewhere in North Perth. They travelled a distance of about 750 m. The appellant took the children to a shed at the rear of the property which he used as his residence. He gave each of the children part of an icy pole. After A had consumed his icy pole, the appellant inserted his erect penis into A's mouth and made him perform fellatio. The appellant then placed his erect penis in J's mouth and made her perform fellatio. Next, the appellant removed J's pants and underwear and performed cunnilingus on her.

15 After he had finished his sexual offending against the children, the appellant walked with the children to Hyde Park and abandoned them. At about 12.00 noon, J approached a woman who was in Hyde Park eating her lunch. She told the woman that she and her brother had been taken to Hyde Park by a man they did not know.

16 Shortly afterwards, the children were taken to the police and conveyed to Child Abuse Squad officers. Interviews were conducted. The children were forensically examined by a medical practitioner at a hospital. J had a rash in the vicinity of her vagina that was consistent with rubbing by facial stubble.

17 The two offences of arson were alleged to have been committed on 16 April 2016 at North Beach. Count 1 alleged that the appellant wilfully and unlawfully destroyed by fire a motor vehicle the property of JR's mother, TR. Count 2 alleged that the appellant wilfully and unlawfully damaged by fire a house then occupied by JR and TR, the property of the Department of Housing and Works.

18 The appellant was found guilty of each count by McGrath J after a trial by judge alone. The issue at trial was whether the appellant was the offender. McGrath J found that, in each count, the State had established beyond reasonable doubt the element of identity.

19 In sentencing the appellant, his Honour set out in detail the facts of the offending. They may be summarised in this way. The appellant commenced a relationship with TR in August or September 2015. The relationship was marked by violence. On 23 March 2016, TR obtained an interim violence restraining order against the appellant. By the time of the commission of the arson offences, the appellant held a deep and abiding hatred towards TR which motivated the commission of the offences.

20 On the afternoon of 15 April 2016, the appellant was seen at the property occupied by JR and TR. He removed a light bulb from the front porch and piled furniture against the back door. The appellant took these actions in preparation for the arson offences. At approximately 4.25 am on 16 April 2016, TR observed the appellant at the front of her house. She called the police who attended and searched the premises, but did not find the appellant. After the departure of the police, the appellant set fire to TR's vehicle and then to the house. The vehicle was uninsured and was completely destroyed. The fire set by the appellant caused serious damage to the house and resulted in TR and JR losing most of their possessions.

21 In sentencing the appellant for the arson offences, McGrath J took into account, for totality purposes, the fact that the appellant was serving the sentence that had been imposed upon him by Stone DCJ.

22 In relation to the offences committed against JR, the appellant was originally charged with seven offences, being five counts of indecently dealing with, and two counts of sexually penetrating, a child under the age of 13 years. On 23 February 2018, after a trial before Glancy DCJ and a jury, the appellant was convicted of the two counts of sexual penetration (counts 2 and 7) and two of the five counts of indecent dealing (counts 1 and 6). The appellant was acquitted of the remaining indecent dealing charges (counts 3, 4 and 5). Glancy DCJ imposed a total effective sentence of 2 years' imprisonment to be served cumulatively upon the sentences imposed by Stone DCJ and McGrath J.

23 On 15 November 2019, this court allowed the appellant's appeal against his convictions on counts 1, 2, 6 and 7 and ordered a retrial: LNV v The State of Western Australia.[1]

24 The retrial took place before Petrusa DCJ and a jury. On 17 September 2020, the appellant was convicted of the two counts of indecently dealing with JR (counts 1 and 6) and one count of sexually penetrating JR (count 7). The appellant was acquitted of the other count of sexual penetration of JR (count 2).

25 As found by Petrusa DCJ, the facts of the offences committed by the appellant against JR are as follows.

26 In August 2014, the appellant met and subsequently formed a relationship with TR. The appellant's relationship with TR ended in late 2015, when JR was 8 years old.

27 On two separate occasions during the appellant's relationship with TR, he sexually abused JR. On each occasion, JR was in his mother's bedroom on the bed watching television.

28 On the first occasion, the appellant entered TR's bedroom and placed his hand over the child's clothing onto his genital area and squeezed his penis. JR rolled over and later left the bedroom (count 1).

29 On the second occasion, the appellant entered TR's bedroom and lay near JR. The appellant then pulled JR's pants down, after which he placed his hand on JR's genital area over the top of his underwear and rubbed and slapped the child's penis. JR responded by rolling over under the blankets (count 6). The appellant then inserted his finger into JR's anus, underneath his clothing (count 7). This hurt JR, who got out of bed, pulled up his pants and went downstairs to his mother.

30 JR did not immediately complain about the appellant's actions. In his evidence at trial, JR explained that he had not done so because whenever he thought to complain the appellant was present.

31 The table below sets out the details of the offences committed by the appellant and the individual sentences that were imposed.

On 19 April 2016, at North Perth, the appellant unlawfully detained a boy, A, contrary to s 333 of the Criminal Code (WA) (Code).

On 19 April 2016, at North Perth, the appellant unlawfully detained a girl, J, contrary to s 333 of the Code.

On 19 April 2016, at North Perth, the appellant sexually penetrated A, a child under the age of 13 years, by introducing the appellant's penis into A's mouth, contrary to s 320(2) of the Code.

On 19 April 2016, at North Perth, the appellant sexually penetrated J, a child under the age of 13 years, by introducing the appellant's penis into J's mouth, contrary to s 320(2) of the Code.

On 19 April 2016, at North Perth, the appellant sexually penetrated J, a child under the age of 13 years, by engaging in cunnilingus, contrary to s 320(2) of the Code.

TES (IND 1524 of 2016): 10 years' imprisonment backdated to 20 April 2016. Eligible for parole. Sentence upheld on appeal.

On 16 April 2016 at North Beach, the appellant wilfully and unlawfully destroyed a Mitsubishi Magna motor vehicle, registration number 1BPG 048, the property of [TR], contrary to s 444(1)(a) of the Code.

On 16 April 2016 at North Beach, the appellant wilfully and unlawfully damaged a house [in] North Beach, being the property of the Department of Housing and Works [where JR and TR resided], contrary to s 444(1)(a) of the Code. And that house was damaged by fire.

TES (INS 261 of 2016): 4 years 6 months' imprisonment, to be served cumulatively on the sentence already being served in IND 1524 of 2016. Eligible for parole.

On an unknown date between 21 August 2014 and 12 October 2015 at North Beach, the appellant indecently dealt with JR, a child under the age of 13 years, by touching his genital area with his hand, contrary to s 320(4) of the Code.

On an unknown date between 21 August 2014 and 12 October 2015 at North Beach, the appellant indecently dealt with JR, a child under the age of 13 years, by touching his penis with his hand, contrary to s 320(4) of the Code.

On an unknown date between 21 August 2014 and 12 October 2015 at North Beach, the appellant sexually penetrated JR, a child under the age of 13 years, by penetrating his anus with his finger, contrary to s 320(2) of the Code.

TES (IND 918 of 2017): 2 years' imprisonment, to be served cumulatively on the sentences already being served in IND 1524 of 2016 and INS 261 of 2016. Eligible for parole.

OVERALL TES (IND 1524 of 2016, INS 261 of 2016 and IND 918 of 2017):

16 years 6 months' imprisonment. Eligible for release on parole after serving 14 years 6 months' imprisonment from 20 April 2016.

The appellant's personal circumstances as found by Petrusa DCJ

32 At the time the appellant was sentenced by Petrusa DCJ he was 57 years old. He was born in Italy and came to Australia with his family when he was about 3 years old. He was raised in the North Perth area and had a good upbringing.

33 The appellant left school at 16 and became an electrician. After some years as an electrician, he began working as an estimator. Later, he purchased and ran two newsagencies. The appellant has three adult children from his marriage. This marriage broke down in the middle of 2014. After the breakdown of his marriage, the appellant set up a business which performed repair and renovation work on rental properties on behalf of real estate agents. Some time prior to the commission of the offences against JR, the appellant became unemployed.

34 Prior to the offences in respect of JR, the appellant had a relatively minor criminal record which included minor drug offences and some traffic offences. All of the appellant's prior offending had been dealt with in the Magistrates Court and had been the subject of fines.

35 The appellant has been a regular user of cannabis since his youth and has, on occasions, used methylamphetamine. The appellant claimed that, at around the time of the commission of the offences in respect of JR, he was suffering from depression arising from the cumulative effect of the death of his brother‑in‑law in 2014 and his father's ill health. Apart from a bout of bacterial meningitis in the late 1990s, the appellant has had good physical health, although he reported three episodes of loss of consciousness when he was aged 30, 40 and 45.

36 Petrusa DCJ characterised the appellant's offending in relation to JR as 'serious'.[4] Her Honour found that the offences involved 'a significant breach of trust'.[5] Petrusa DCJ found that JR was 'particularly vulnerable given his youth'.[6] She also found that, despite JR's young age, he was aware of the significance of what had happened to him and was embarrassed by what had occurred. Her Honour found that although the act of sexual penetration was of a short duration, it caused JR pain.

37 Her Honour referred, in some detail, to the sentences that had been imposed upon the appellant by Stone DCJ and McGrath J.[7]

38 Her Honour found that the appellant's offending in respect of JR was consistent with sexual interest by the appellant in children and involved 'a high degree of deviance'.[8] Her Honour said that the presence of deviant sexual interest in children, together with a proven willingness to commit crimes fueled by hatred, gave rise to concerns about public protection.[9] Her Honour noted that, in the 4 1/2 years the appellant had been in custody prior to 9 October 2020, he had undertaken counselling and treatment. However, it did not appear that the appellant had made any meaningful steps towards his rehabilitation, having regard to his continual denial of any sexual interest in children and his claimed absence of recollection of the offences relating to the childcare centre.[10]

39 Her Honour found that the appellant did not have the mitigation of pleas of guilty, youth, insight into his offending or empathy towards his victim, JR.[11]

40 Her Honour expressly acknowledged that, as the appellant was already subject to the earlier sentences, questions of totality arose in sentencing the appellant for the offences committed on JR.[12] Her Honour said:[13]

Given, however, that you are currently a sentenced prisoner, issues of totality arise. I must ensure that the total effective sentence imposed on you bears a proper relationship to the overall criminality involved in all of the offences, including those in respect of which you are still serving a term of imprisonment, viewed in their entirety, having regard to all relevant circumstances, including those referable to you personally.

Further, the total effective sentence on you should not constitute a crushing sentence, that is, it should not destroy any reasonable expectation of a useful life after release from custody.

41 Her Honour considered that some additional punishment was required to reflect his wrongdoing towards JR. She said that any such additional punishment would be moderated because of the 'lengthy sentence' the appellant was serving.[14]

42 Her Honour then imposed the sentences referred to at [31] of th[15]e reasons.15

43 The appellant's written submissions were relatively brief and contended that the total effective sentence of 16 years 6 months' imprisonment was disproportionate to, and did not bear a proper relationship to, his overall criminality. Further, he contended that the total effective sentence was crushing.

44 The appellant's oral submissions at times steered into irrelevancy. At other times, he made submissions which tended to detract from his professed remorse.[16] They did not add materially to the written submissions.

45 The totality principle is a common law principle of sentencing recognised in this State by s 6(3)(b) of the Sentencing Act 1995 (WA), which provides that a sentence can be reduced because of 'any rule of law as to the totality of sentences'.

46 The first limb of the totality principle requires that the total effective sentence imposed on an offender who has committed multiple offences bears a proper relationship to the overall criminality involved in all of the offences, including those in respect of which the offender is still serving or is yet to serve a term of imprisonment, viewed in their entirety, having regard to all relevant facts and circumstances including those referable to the offender personally (and including, for example, the desirability of accommodating any wish to rehabilitate), all relevant sentencing factors and the total effective sentences imposed in comparable cases.[17]

47 The second limb of the totality principle is that the court should not impose a 'crushing' sentence. The word 'crushing' in this context connotes the destruction of any reasonable expectation of a useful life after release. An aggregate sentence may be inappropriately long under the first limb even if it cannot be described as 'crushing'.[18]

48 A rationale for the totality principle is that there is an assumed rehabilitation and reduced demand for retribution after the initial sentences have been served.[19]

49 At its core, the totality principle requires due proportionality of the total offending and the total punishment. Due proportionality requires adequate severity just as much as the avoidance of excessive severity.[20]

50 It is important to understand from the outset that this appeal is only against the sentences imposed by Petrusa DCJ. Although this statement may appear trite, it is necessary to make it because, in the course of his oral submissions, the appellant appeared to think that this court could allow the appeal and then vary the earlier sentences imposed on him, with the effect that he would receive a total effective sentence of substantially less than 16 years 6 months' imprisonment. Plainly, this is not the case.[21]

51 The sentences imposed by Stone DCJ have already been the subject of appellate review. This court cannot interfere with those sentences.

52 The appellant has not appealed against the sentences imposed by McGrath J. Accordingly, this court cannot, in the current proceedings, interfere with those sentences.

53 The real question to be determined in this appeal is whether or not the imposition of a cumulative sentence of 2 years' imprisonment for the offences against JR resulted in a total effective sentence which infringed both limbs of the totality principle.

54 It is unnecessary to repeat the circumstances of these offences against JR. They are self‑evidently serious offences. Her Honour identified the aggravating features of the offending. There was very little that could be said in mitigation. When the fact that the appellant was already liable to serve a sentence of 14 years 6 months' imprisonment is taken into account, the total effective sentence of 2 years' imprisonment was plainly an appropriate reflection of the appellant's overall criminality and could not, arguably, be said to infringe either limb of the totality principle.

55 Without doubt, the appellant was, at the time he was sentenced by Petrusa DCJ, subject to a very substantial term of imprisonment. However, the sentences imposed by Stone DCJ and McGrath J, in combination, reflected the very serious nature of the offending they were required to deal with. The childcare offences were disturbing. The arson offences were planned and motivated by revenge. The offences against JR were separate and distinct in nature and warranted, in our view, additional punishment. To do otherwise would be to fail to reflect the serious and additional criminality involved in this offending and would result in a total effective sentence that would not properly reflect all of what the appellant did. Nor would it have properly recognised the serious harm done to the victim.

56 We accept that the operation of the totality principle required that the sentences imposed by Petrusa DCJ were to be moderated. This is what the sentencing judge in fact did. It is unarguable that, had the appellant been sentenced for the offences he committed against JR and was not subject to the other sentences, he would have received a substantially higher total effective sentence.

57 The appellant cited, in his written and oral submissions, a large number of cases which he regarded as comparable. It is unnecessary to cite them or to set out the facts and circumstances. As this court noted in Pennetta v The State of Western Australia,[22] the fact that different offenders may have received different total effective sentences in respect of different groupings of sentences adds a level of complexity that makes comparisons difficult. The combination of offences committed by the appellant was unusual and makes relevant comparisons even more difficult. We observe that not all of the offences committed by the appellant were of a sexual nature. The appellant also committed offences of unlawful detention and arson. None of the cases cited by the appellant were truly comparable. In the end, this case must be determined on its own facts and circumstances.

58 Having regard to all of the relevant circumstances, while a total effective sentence of 16 years 6 months is substantial, it is, in our opinion, appropriately severe and reflects the very serious nature of the appellant's overall offending as contained in the three indictments, viewed in their entirety and having regard to all other circumstances, including those personal to him.

59 We do not regard the total effective sentence of 16 years 6 months' imprisonment as being crushing as that term is understood. The appellant will not be of advanced age in the event that he serves the entirety of the total effective sentence. He is currently in good physical health. There is no evidence (as opposed to his assertions in his oral submissions) that he is suffering from any condition which will seriously deteriorate over time. We do not regard the total effective sentence of 16 years 6 months' imprisonment as destroying any reasonable expectation of a useful life after release.

60 For the abovementioned reasons, there is no merit in either ground of appeal.

Alleged infringement of the 'rule of restraint'

61 Although not a ground of appeal, in his written submissions the appellant complained that Petrusa DCJ should not have imposed the same sentence as he had received from Glancy DCJ because he had been convicted in his retrial of one less charge of sexual penetration of JR. The appellant claimed that, in imposing the same sentence, Petrusa DCJ infringed what is sometimes called the 'rule of restraint', which provides that, ordinarily, a successful appellant should not receive, on retrial, a heavier sentence then he or she received at the original trial.[23] There is no merit in this submission.

62 Of course, the appellant did receive from Petrusa DCJ the same sentence as Glancy DCJ imposed at his first trial in respect of the offences against JR. Thus, the so‑called 'rule of restraint' has not been infringed. While it is true that the appellant was convicted at the retrial of one less charge of sexual penetration of JR than in the original trial, the sentencing outcome before both Glancy DCJ and Petrusa DCJ was heavily influenced by the operation of the totality principle. The total sentence imposed by Petrusa DCJ was, in the circumstances, understandably lenient. To have further reduced it, as the appellant contends, would have led to the imposition of a total sentence in respect of the offences against JR which would not have been commensurate with their seriousness. Even if the 'rule of restraint' was relevant, it cannot be applied so as to result in a sentence which is incommensurate with the seriousness of the offending.

(1) An extension of time is granted.

(2) Leave to appeal is refused.

(3) The appeal is dismissed.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.

Research Associate to the Honourable Justice Murphy and the Honourable Justice Mazza

[1] LNV v The State of Western Australia [2019] WASCA 180.