Lowndes v The Queen

Lowndes v The Queen - [2006] WASCA 199 - WASCA 2006 case summary — Zoe

[28]

"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."

[61]

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.

[65]

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]).

At a glance

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Judgment (77 paragraphs)

THE STATE OF WESTERN AUSTRALIA -v- TURAGA [2006] WASCA 199 (5 October 2006)

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Legislation Cited (2)

Cases Cited (9)