Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA

Criminal law - Sentence - State appeal - Whether sentence manifestly inadequate - Turns on own facts

Sentence Administration Act 2003 (WA), s 7(3)

Sentencing Act 1995 (WA), s 88(1)

Sentencing Legislation Amendment and Repeal Act 2003 (WA)

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

Martino v The State of Western Australia [2006] WASCA 78

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

R v Cleak [2004] WASCA 72

R v Faithfull [2004] WASCA 39; (2004) 142 A Crim R 554

R v White [2002] WASCA 112

Readhead v The State of Western Australia [2005] WASCA 191

The State of Western Australia v Houston [2005] WASCA 167

The State of Western Australia v Marchese [2006] WASCA 153

Woods v The Queen (1994) 14 WAR 341

Allpass (1993) 72 A Crim R 561

Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321

McLean v The Queen [1999] WASCA 209

Mill v The Queen (1988) 166 CLR 59

Ricciardello v The Queen [2001] WASCA 416

The State of Western Australia v Miller [2005] WASCA 53; (2005) 30 WAR 38

Veen v The Queen (No 2) [1988] HCA 14; (1988) 164 CLR 465

1 WHEELER JA: I have read in draft the reasons for decision of McLure JA. Her Honour has set out the single ground of appeal, and summarised the facts of the relevant offences. I do not repeat those matters. Her Honour has also summarised the principles governing appeals against sentence in general, and State appeals in particular. I accept and do not repeat that summary. Further, I accept her Honour's conclusion that the sentence imposed was manifestly inadequate, having regard to the overall criminality of the respondent's conduct. However, I would wish to add some additional observations relating to the manner in which the error appears to have arisen, and to undertake for myself an analysis of the way in which a sentence should appropriately be structured in this case.

2 Because they are brief, it is convenient to set out the sentencing remarks of the learned sentencing Judge in full. They are:

"On 22 March, you pleaded guilty before me to one count of detaining and one count of threat to kill and 15 counts of sexual penetration while armed. The complainant is your former wife and you and she have three children, but you were separated and she had a violence restraining order against you. These offences occurred over a three-hour period when you subjected the complainant to a horrible, humiliating and violent ordeal. At the time you were on parole for deprivation of liberty and aggravated sexual penetration of the same complainant.

On 21 December 2001 you committed those offences and on 30 August 2002 you were convicted of the offences and sentenced to four years' gaol commencing on 27 June 2002. After your release on parole on 23 January 2004, you reconciled in March with the complainant, but eventually went back to your drinking and the relationship broke down again. The current offences were committed while you were on parole. I am told that you owe 490 breach of parole days and you have spent 50 days in custody on these matters.

You are 28 years old. You have pleaded guilty on the fast-track. There is absolutely no doubt in anyone's mind about the level of your feelings of remorse and regret about these matters and that is no doubt why you pleaded guilty on the fast-track and you did not put one fact into issue. You have accepted everything that your wife says and you are obviously an alcoholic and once you have been drinking for several days, you really do not know what you are doing and when you sober up you do regret these things, but by then it is too late.

I have a pre-sentence report and psychiatric and psychological assessments on you. The state opposes parole for you, but I am prepared to grant you parole, taking into account the contents of the various reports and the fact that this time you will have plenty of opportunity to complete programs. I do accept that you are remorseful and if you could give up drinking, you would. As I say, you have accepted everything the complainant has said about these matters. Also, your love for your children is an incentive for you to rehabilitate yourself, but nevertheless, these matters are really unspeakable - it is unspeakable behaviour.

The overall criminality, taking into account that you will also have some parole time to serve, is nine years. I have deducted a third to allow for the transitional provisions, taking it to six years and have taken off 25 per cent for your fast-track plea which is four years and six months and you are sentenced to four years and six months on each count concurrent with each other, with parole."

Her Honour went on to advise the respondent of when he would be eligible for release on parole.

3 There are several observations which may be made about the remarks. The first is that the description of the actual offences is brief and general. Such brevity and generality is not unusual in sentencing remarks, particularly in cases of a sexual nature, and does not necessarily disclose error. Both in sentencing remarks and in appellate decisions, the Courts are conscious of the fact that victims of such offences may often be re-victimised by a detailed public recounting in open court and by any subsequent publication of the detail of offences which they experienced as degrading and humiliating. Certainly in this case, her Honour's characterisation of the offending as "a horrible, humiliating and violent ordeal" was correct. The lack of any condescension to detail is, however, of some concern when taken in conjunction with the next matter I mention.

4 Although it is not raised as a separate ground of appeal, there is nothing in her Honour's sentencing remarks to indicate that she had regard to the principles enunciated in Pearce v The Queen (1998) 194 CLR 610 at [45] - [46]; that is, that the Court must fix an appropriate sentence for each offence and then consider questions of cumulation, concurrency and totality. In the present case, the only indication is to the contrary, in that her Honour went straight to an "overall criminality" of 9 years, with no indication of how that was to be broken up between the very many different offences committed by the respondent. That approach may well in the present case have led to her Honour's error, since it seems to me that if she had considered, in isolation, the appropriate sentence for just one of the more serious of the offences on the indictment, she would not have arrived at an overall figure, in respect of all of them, which was so low. Although, as I have noted, this was not a separate ground of appeal, the issue was raised in par 18 of the State's submissions which complains of a "failure to take account of the differences" between each of the counts.

5 Finally, there is a strong emphasis in the sentencing remarks upon the respondent's "remorse", and no reference to specific deterrence. In the circumstances of this case, for reasons which I shortly explain, that focus and that omission lend weight to the State's submissions that her Honour had undue regard to matters personal, and insufficient regard to specific deterrence.

6 Taking the last question first, her Honour accepted that the respondent was remorseful. Her Honour accepted that the respondent was an alcoholic, that he would give up drinking if he could and that once he had been drinking for several days, he did not "know what [he was] doing". I am not sure quite what is meant by this last observation, since it seems plain from the complainant's statement, and from the psychological report, that the respondent was well aware of what he was doing, that he intended to inflict pain and humiliation on the complainant, and that he derived considerable satisfaction, at least at the time, from that conduct.

7 I accept that the respondent was remorseful. That was asserted, and accepted, in each of the pre-sentence report, psychological report and psychiatric report. That remorse may well have motivated the plea of guilty. Remorse is always a relevant mitigating factor. However, the weight to be given to it will vary, and this is because, as sentencing Judges know, there may be different kinds of, or different consequences of, remorse. At one end of the spectrum, there is simple remorse and contrition which causes an offender to feel bad about himself or to feel sorry for the complainant, or both, but which has no further consequences. At the other end, there is remorse which is so acute and so deep that it motivates an offender to seek treatment or to change his or her lifestyle, or is otherwise such as to convince a Court that the offender is very unlikely to reoffend. Remorse of this last type is given greatest weight, for the reason that it reduces what might otherwise be considered to be the need for specific deterrence.

8 The respondent did not display remorse of this last kind. There was no indication that his remorse was such that it was likely to lead to any reduction in the need for specific deterrence in his case. Indeed, the only indications in the sentencing materials were that specific deterrence was a consideration of considerable importance in his case. There are a number of reasons for reaching this conclusion. One was that he had a history of violent offending while intoxicated. In 1997, he committed an armed robbery which involved the brandishing of a broken bottle, while intoxicated. His former aggravated sexual penetration without consent against the same complainant in 2002 followed a drinking binge. In the psychological report, he is reported to have said that he was contrite "like before"; that is, he felt as he did after his sexual offence in 2002. Self-evidently, those earlier feelings of remorse had not prevented him from reoffending in a similar manner. The psychologist specifically noted that the experience of guilt and remorse did not guarantee against reoffence.

9 The psychological report explained why in this particular respondent's case, notwithstanding his remorse, it was likely that behaving aggressively and antisocially while intoxicated had been recorded as "an emotionally successful strategy". He was assessed to be at medium to high risk of reoffending. Importantly, a preference for sadistic acts was noted, so that there was a risk of reoffending not only in a sexual manner, but in a sadistic way.

10 It is true that the psychiatric report made a number of suggestions in relation to programmes which it was considered might well assist with the respondent's rehabilitation. However, the psychiatrist had before him the pre-sentence report, which showed that the respondent had previously had exposure to a variety of programmes (including anger management, sexual offender treatment and substance abuse counselling), but that his response to those programmes had been patchy. The psychiatrist did not express a view as to whether, or why the respondent appeared to be any more likely to successfully complete those programmes than he had been in the past.

11 Having regard to the respondent's prior history of offending, his prior response to rehabilitative programmes, the pre-sentence and psychological reports, and of course to the circumstances of this offending, there was a clear need to give considerable emphasis in the respondent's case to specific deterrence. The respondent's remorse, although relevant for sentencing purposes, was of relatively little weight in comparison with the need to protect the community by deterring the respondent. Her Honour's sentencing remarks do not advert to that matter.

12 Performing for myself the task of arriving at an appropriate sentence for each of the offences on the indictment, I would approach the sexual offending in this way. While there is no tariff for sexual penetration without consent, the general range of sentences commonly imposed prior to the Sentencing Legislation Amendment and Repeal Act 2003 (WA), for a single act of penetration of the vagina with the penis where the victim is an adult was of the order of 6 to 9 years. The sentence of 6 years was generally regarded as one toward the lower end of the scale, and was often imposed after taking into account mitigating factors: R v Cleak [2004] WASCA 72 at [13].

13 These offences were towards the upper end of any relevant scale of offending. They were premeditated in the sense that, whatever the respondent's expressed reason for going to the house, he lay in wait at a house where he was aware that he should not be, he hid his bicycle so that the complainant would not know that he was there, and he had armed himself with a knife. He persisted in a course of sexual offending over a period of some three hours, approximately, despite the complainant's tears and repeated pleas for him to stop. His conduct was calculated to demean and degrade the complainant, in ways which included his rubbing his genitals on her face and chest, his cutting off of her hair, his making her crawl to various locations throughout the house, his demanding that she dance for him, and his demanding that she express pleasure and satisfaction in relation to the sexual assaults.

14 Although it is not clear which of the various acts of sexual penetration caused physical injury, the conduct overall caused a number of lacerations to the complainant's vagina, including a laceration of over one centimetre in length. This is of particular significance, since it is often noted in medical reports that come before this Court, that sexual penetration without consent can - and often does - occur without any objective signs such as lacerations being detected. Their presence in this case says something about the degree of force used by the respondent.

15 In that context, there are three particular counts on the indictment which I would regard as being at the upper end of any scale of offending for such offences, and as warranting a term of 9 years' imprisonment (prior to the transitional provisions). They are count 4 (the first penile penetration and one which the complainant described as causing "intense" pain), count 6 (the anal penetration, which the complainant also described as causing extremely severe pain and which was persisted in for a short time despite her obvious pain), and count 13.

16 Count 13 is one of performing cunnilingus. Generally, although they are all defined by statute as "sexual penetration", the Courts would regard counts of oral penetration or digital penetration as being of lesser severity than other types of sexual penetration, following Ibbs v The Queen [1987] HCA 46; (1987) 163 CLR 447. However, Ibbs is not authority for the proposition that some types of sexual penetration are intrinsically less serious than others; rather, it was recognised in that case that the seriousness would depend upon the circumstances. In this case, the complainant said of this count, "I felt disgusted as this act degraded me the most". Given that it was plainly the respondent's purpose to degrade and humiliate the complainant during the course of this ordeal, and given that the parties had been in a long relationship so that the respondent would be expected to know how the complainant would react to this particular act, those circumstances, in my view, elevate the seriousness of the oral penetration in that particular count very considerably.

17 Because of the special considerations relating to State appeals, I would, however, in the present case impose the following sentences. I would impose a term of 8 years rather than 9 years' imprisonment in respect of each of the three counts I have mentioned. In relation to each of the other counts of oral and digital penetration (counts 3, 9 and 11), I would impose a term of 3 years' imprisonment, and in relation to each of the other counts of sexual penetration, I would impose a term of 5 years' imprisonment.

18 In relation to counts 1 and 2, the statement of facts given by the prosecutor did not make it clear at what point the State alleged count 1 ended. On any view, the whole course of conduct constituted by the two counts was very serious. For the purpose of sentencing, I have assumed, favourably to the respondent, that count 1 was complete when the respondent prevented the complainant from leaving the house, pushed her into a lounge chair, and then spoke with her for a short time. On that view, the deprivation was short in duration and was not in the more serious category of such offences. In relation to that count, I would impose a sentence of 6 months' imprisonment.

19 Count 2, being the threat to kill, occurred in circumstances where the respondent had a present ability to effect the threat, being armed with a knife. This count relates to the first threat, when the respondent said that if the complainant did not remove her clothing, he would run the knife through her. It should be noted that he expressed himself in the psychological report as being "relieved" that he did not kill the complainant, reinforcing the impression which I gained from the complainant's statement that there was at the time a real risk that he might do so. The threat to kill, then, was made in circumstances where there was not only an ability to effect it, but at least some intention to do so, in the respondent's mind, if the complainant did not comply with his wishes, and in circumstances where the complainant believed that there was a real risk it would be carried out. I would therefore impose a term of 2½ years' imprisonment in relation to this count.

20 Plainly, considerations of totality arise. Because a sentence is considered to increase considerably in severity as its length increases, and because of the need to avoid a "crushing" term, there must be some considerable concurrency. This principle, rather than the so-called "one transaction" rule, is the appropriate principle to apply when considering issues of concurrency, since in the circumstances of this case concurrency of all terms of imprisonment would not adequately reflect the overall criminality of the respondent's conduct (see R v Faithfull [2004] WASCA 39; (2004) 142 A Crim R 554 at [28], per McLure J). I would therefore make cumulative the terms imposed in respect of counts 4 and 6. The threat to kill, in my view, adds an extra dimension to the complainant's ordeal. It is true that the circumstance of the respondent being armed with a knife is the circumstance alleged as aggravation in relation to the sexual penetration counts. However, the very real risk to the complainant's life, and her very real fear on that score, does require some separate sentence. I would therefore adjust the sentence I would otherwise impose in respect of count 2, by reducing it to 1 years' imprisonment, and would then make it cumulative upon counts 4 and 6. All other terms I would order to be served concurrently.

21 The process of reasoning described above leads to a total effective sentence of 17 years' imprisonment. There are, however, three further adjustments which should be made. The first is that made by her Honour the learned sentencing Judge in relation to the pleas of guilty. I would reduce each of the terms I have imposed by 25 per cent, and thereby reduce the effective overall term by 25 per cent, in recognition of the pleas of guilty. That results in a total period of 153 months. The Sentencing Legislation Amendment and Repeal Act 2003 requires a further one-third reduction. That reduction again must be made in respect of each sentence imposed and results in a total effective term of 102 months, or 8½ years' imprisonment (the individual terms being 4 years in respect of counts 4, 6 and 13; 18 months in respect of counts 3, 9 and 11; 3 months in respect of count 1; 6 months in respect of count 2; and 2½ years for each of the remainder).

22 Finally, it is necessary to consider the days "owed" to the Parole Board. When sentenced by her Honour, the respondent had 490 days potentially to be served as a result of the fact that these offences breached his parole in relation to the sentence earlier imposed on him in August 2002 in relation to his aggravated sexual penetration without consent of the same complainant on 21 December 2001. There are two considerations at work here, pointing in different directions. On the one hand, it is the case that the fact that the respondent was on parole in relation to earlier sexual offending against the same complainant, and that in doing so he breached a violence restraining order which the complainant had against him, makes his conduct more serious. This is because there is an element of defiance of the law and of disregard for the obligations imposed on him for the protection of the complainant and of others like her. It is also a case in which one might well expect that the impact on the complainant of this offending would be more serious by reason of the fact that it was an ordeal which occurred on top of her previous victimisation by the respondent.

23 On the other hand, totality considerations arise because the sentence which the respondent is required to serve is potentially increased by the length of the parole days owing in relation to his earlier offending. That consideration is a matter which sentencing principles require to be taken into account, and it will generally dictate that some reduction of sentence is necessary where there is a significant such period: see, eg, Readhead v The State of Western Australia [2005] WASCA 191. Of course, the sentence imposed for later offences is not usually reduced simply by the number of parole days owing. That is because the legislative purpose of parole as an incentive to reform and as mitigation of punishment for those offenders who are inclined towards rehabilitation would be undermined if, wherever parole was breached by reoffending, any days owing were simply subsumed in the fresh sentence.

24 In the present case, the respondent owes a period which equates to approximately 1 year and 4 months' imprisonment. It seems to me that totality principles are appropriately recognised, in the circumstances of this case, by a reduction of a further 6 months in respect of count 6, giving

a total effective sentence of 8 years, to be served cumulatively upon any term being served in respect of the sentence imposed on 30 August 2002. I would order eligibility for parole.

25 I would accordingly grant leave, allow the appeal, and substitute the sentences I have described above.

26 McLURE JA: This is a State appeal against sentence. On 22 March 2005 the respondent was convicted of one count of deprivation of liberty contrary to s 333 of the Criminal Code (WA) ("Code"), one count of threat to kill contrary to s 338B of the Code and 15 counts of aggravated sexual penetration without consent contrary to s 326 of the Code. He pleaded guilty to the offences on the fast track system.

27 All the offences were committed against the same complainant. At the time the respondent committed these offences, he was on parole for an offence of aggravated sexual penetration without consent against the same complainant. The Court was informed that the respondent owed 490 breach of parole days in respect of that offence. On 24 March 2005 the respondent was sentenced to 4 years 6 months' imprisonment in respect of each count to be served concurrently with each other. Thus the respondent was sentenced to a total term of 4 years 6 months. That term was ordered to be served cumulatively with the respondent's 490 breach of parole days. The respondent was made eligible for parole.

28 The State relies on one ground of appeal which is in the following terms:

"The learned sentencing Judge erred in imposing a total effective term of 4 years 6 months imprisonment.

Particulars

The learned sentencing Judge was in error in that the sentence imposed:

(a) failed to adequately reflect the seriousness of the offences and the circumstances in which they were committed;

(b) failed to reflect the need for specific and general deterrence;

(c) failed to adequately punish the Respondent;

(d) reflected an undue regard for matters personal to the Respondent; and

(e) was in the circumstances so inadequate as to manifest error."

29 The facts are as follows. The complainant and the respondent were previously in a de facto relationship but had separated at the time the respondent committed the offences. They have three children together who live with the complainant. At the time of the offences, the complainant had a violence restraining order against the respondent. After obtaining the violence restraining order, the complainant and her children resided with her father at his residence. The complainant would attend at her home during the afternoon to turn the lights on for security reasons and return the next morning to turn the lights off. At about 5 am on the morning of 1 January 2005 the respondent attended at the complainant's home address. The complainant was not present. Knowing she would arrive soon, the respondent concealed his pushbike at the rear side of the house. He entered the house using a key. He waited for the complainant to arrive. At about 8.45 am she arrived to turn off the lights. As she walked down the hallway, she noticed the respondent sitting in a chair in a bedroom. The complainant immediately walked to the front door to exit the house. The respondent walked in front of her, stopping her from leaving. They spoke for a short time during which the respondent became aggressive. He pulled a knife from behind his back and held it to the complainant's throat and demanded that she walk to the bedroom. The respondent held the knife to the left side of the complainant's throat as they walked towards the bedroom. The complainant was pleading with the respondent not to rape her. These are the facts of the offence of deprivation of liberty. Whilst holding the knife towards her chest, the respondent ordered the complainant to remove her clothes, threatening to run the knife through her if she refused. Both removed their clothing. Armed with the knife and repeatedly threatening to stab the complainant, the respondent committed 14 counts of sexual penetration involving digital, oral and penile penetration of the vagina and one count of penile penetration of the anus. During the sustained course of offending, the respondent rubbed his genitals on her face and chest, cut her hair, made her crawl on her hands and knees to various locations in the house and demanded that she dance for him. The offending persisted over three hours. The respondent's conducted was calculated to demean, degrade and humiliate the complainant.

30 The sentencing Judge gave short sentencing reasons. She said in conclusion:

"The overall criminality, taking into account that you will also have some parole time to serve, is nine years. I have deducted a third to allow for the transitional provisions, taking it to six years and have taken off 25 per cent for your fast track plea which is four years and six months and you are sentenced to four years and six months on each count concurrent with each other, with parole."

31 The reference to the transitional provisions is to the transitional provisions in the Sentencing Legislation Amendment and Repeal Act 2003 (WA) ("Sentencing Amendment Act"). The transitional provisions require a sentencing judge to impose a term that is two-thirds of the term he or she would have imposed prior to the commencement of that Act.

32 An appellate court is not entitled to intervene merely because it would have exercised the sentencing discretion in a manner different from the sentencing Judge: Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665. It is entitled to intervene if a material error of fact or law is discerned in the sentencing Judge's reasoning or if error can be inferred or implied because the result is unreasonable or unjust. Where a sentence for a single offence is unreasonable or unjust it is commonly referred to as being manifestly excessive or manifestly inadequate. Where the complaint is that the total effective term for multiple offending is manifestly inadequate, it is in effect a claim that the total sentence offends the totality principle. That principle requires a judge who is sentencing an offender for a number of offences to ensure that the aggregation of the sentences imposed for each offence is a just and appropriate measure of the total criminality involved: Postiglione v The Queen [1997] HCA 26; (1997) 189 CLR 295 at 307 - 308. The totality principle also applies where an offender is still serving a sentence for another offence. The total sentence imposed on an offender must bear a proper relationship to the overall criminality involved in the various offences, viewed in their entirety and having regard to the circumstances of the case, including those referable to the offender personally: Woods v The Queen (1994) 14 WAR 341 at 352 per Anderson J. The fact that the multiple offences occurred as part of one transaction does not require that all the sentences be served concurrently if that would result in an inappropriate measure of the total criminality of the conduct: R v Faithfull [2004] WASCA 39; (2004) 142 A Crim R 554. Further, a cumulative sentence may offend the totality principle if its effect is "crushing" which connotes the destruction of any reasonable expectation of useful life after release (Martino v The State of Western Australia [2006] WASCA 78 at [16]).

33 Special principles apply to State appeals against sentence. They are comprehensively stated in The State of Western Australia v Houston [2005] WASCA 167 at [52] - [54] per Steytler P and The State of Western Australia v Marchese [2006] WASCA 153 at [28]. For present purposes it is sufficient to record that State appeals are brought in rare and exceptional cases to establish some point of principle and when a court decides to resentence an offender, it ordinarily gives recognition to the element of double jeopardy involved by imposing a sentence that is somewhat less than the sentence it considers should have been imposed at first instance.

34 The respondent was born on 18 June 1976. He was aged 28 at the time of the offending. As already noted, he had one prior conviction for aggravated sexual penetration without consent. He also had a record of offending as a juvenile in the Australian Capital Territory for offences including armed robbery, assault and stealing. The respondent has a serious alcohol abuse problem which is connected with his offending. He is assessed as being at medium to high risk of sexual reoffending. He had previously participated in, but not successfully completed, two community-based sex offender programmes whilst on parole. The only mitigating factor is the respondent's fast track plea of guilty which in this case is indicative of remorse.

35 There is no tariff for offences of sexual penetration without consent. However, prior to the commencement of the Sentencing Amendment Act, the sentence for a single act of penetration of the vagina with the penis where the victim is over the age of 16 was (without regard to mitigating factors) in the range of 6 to 9 years (now 4 to 6 years). The dominant sentencing considerations are punishment and general and specific deterrence: R v Cleak [2004] WASCA 72 per Wheeler J at [13].

36 The circumstances of, and surrounding, the offences are very serious. They were committed whilst the respondent was on parole for an earlier offence of aggravated sexual penetration against the same complainant; the offences involved a significant escalation in the seriousness of his criminal conduct; the offending was violent and sustained over a lengthy period; and further, it was calculated to demean, degrade and humiliate the complainant. The only mitigating factor is the respondent's fast track pleas of guilty. In all the circumstances, a total effective sentence of 4 years and 6 months is a manifestly inadequate measure of the total criminality of the respondent's criminal conduct.

37 This Court has the necessary materials to enable it to resentence the respondent. The Court must fix an appropriate sentence for each offence and then consider questions of cumulation, concurrence and totality: Pearce v The Queen (1998) 194 CLR 610 at 624. Further, if there is an overlap in the elements (or circumstances) of the offences charged, the offender should not be doubly punished.

38 On each of counts 1 and 2 (unlawful detention and threat to kill) I would impose a term of 2 years and 8 months' imprisonment; for each of counts 3, 9, 11 and 13 (involving digital and oral penetration) I would impose a sentence of 3 years and 4 months; and for each of counts 4, 5, 6, 7, 8, 10, 12, 14, 15, 16 and 17, I would impose a term of 4 years. Each of those sentences reflect the one-third reduction required by the transitional provisions of the Sentencing Amendment Act. To order that all sentences be served concurrently would result in an inappropriate measure of the total criminality of the appellant's conduct (see R v White [2002] WASCA 112). Without regard to the principles relating to State appeals, the total criminality of the offending warrants a total effective sentence of 8 years and 6 months which I would reduce to 7 years and 4 months (which equates to 11 years under the former sentencing regime) because of the principles applicable to State appeals. I would achieve that by ordering that the sentences for counts 3 and 4 be served cumulatively with each other and concurrently with the remaining sentences. In the absence of any order, the sentence of 7 years and 4 months would be served concurrently with the remainder of the appellant's existing term being the parole days owing: s 88(1) of the Sentencing Act 1995 (WA). The totality principle does not mandate a reduction in the sentence of 7 years and 4 months or that that term be made partially concurrent because the appellant owes parole days for his prior rape of the complainant. The total criminality of his entire course of offending justifies an order that the total sentence of 7 years and 4 months be served cumulatively with the parole days owing. This assessment is made on the basis contended for by both parties that s 7(3) of the Sentence Administration Act 2003 (WA) does not apply. The correctness of the contention is not a matter that arises for determination in this case.

39 Accordingly, I would set aside the sentences imposed by the sentencing Judge and in lieu thereof impose the sentences set out above. Like the previous total sentence, it is to commence on 1 February 2005. I

would also order that the appellant be eligible for parole. In relation to the total effective sentence of 7 years and 4 months, the appellant will become eligible for parole after 5 years and 4 months.

40 BUSS JA: I agree with McLure JA, for the reasons she gives, that the appeal should be allowed, the sentences imposed by the learned sentencing Judge should be set aside, and the respondent should be re-sentenced by this Court.

41 I also agree with McLure JA, for the reasons she gives, that the respondent should be re-sentenced in the manner proposed by her Honour.

42 The individual sentence for each count in the indictment is appropriate. The total effective sentence of 7 years and 4 months (which equates to a total effective sentence of 11 years before the introduction of the transitional provisions contained in the Sentencing Legislation Amendment and Repeal Act 2003 (WA)) is also appropriate.

43 Finally, I agree with McLure JA's remarks and orders in relation to the re-sentencing process, including her Honour's observations concerning the parties' contention that s 7(3) of the Sentence Administration Act 2003 (WA) does not apply.