MERRITT -v- THE STATE OF WESTERN AUSTRALIA [2019] WASCA 203 (17 December 2019)

(1) Count 1 - deprivation of liberty - 4 years 6 months' imprisonment

(2) Count 2 - burglary and committing an offence in a dwelling - 5 years 5 months' imprisonment

(3) Count 3 - aggravated indecent assault - 2 years 9 months' imprisonment

(4) Count 4 - aggravated sexual penetration - 4 years 2 months' imprisonment

(5) Count 5 - aggravated sexual penetration - 4 years 2 months' imprisonment

(6) Count 6 - aggravated sexual penetration - 6 years' imprisonment

(7) Count 7 - aggravated sexual penetration - 6 years 6 months' imprisonment

(8) Count 8 - aggravated sexual penetration - 4 years 2 months' imprisonment

1. His Honour ordered that the sentences on counts 6 and 7 be served cumulatively, and that the remaining sentences be served concurrently with each other and concurrently with the sentences on counts 6 and 7.[5] Thus the total effective sentence imposed upon the appellant was 12 years 6 months' imprisonment.[6] His Honour ordered that the appellant be eligible for parole.[7] The sentences commenced on 24 May 2018.[8]
2. The appellant does not challenge any of the individual sentences. Nor does the appellant allege any express error by the sentencing judge. The sole ground of appeal alleges that the total effective sentence infringed the first limb of the totality principle.[9]

1. The facts of the appellant's offending are not in dispute. They were detailed by the prosecutor and briefly summarised in the sentencing remarks. They are as follows.
2. On the evening of 3 November 1994, the victim, P, who was then about 13½ years of age, was at home with her elder sister. The appellant, who at the time was 21 years of age, entered the victim's house without consent (count 1). With his face covered with material to hide his identity, the appellant went into P's bedroom. The appellant grabbed P by the back of the head and told her 'Get up. Do what I tell you and we are going out here' (count 2). The appellant then forced P to walk to some nearby bushland. It was at this location that the appellant committed counts 3 to 8.[10]
3. As to count 3, the appellant took P behind some bushes and fondled her breasts with his hands. He then forced her into a kneeling position, pulled his pants down exposing his penis and then forced her mouth onto his penis, not letting go until he ejaculated (count 4). The appellant then told P to lay down on the ground on her back. He digitally penetrated her vagina (count 5) and penetrated her vagina with his penis (count 6). The appellant then rolled P over and penetrated her anus with his penis (count 7). Next, the appellant again positioned P on her knees and forced his penis into her mouth (count 8). The appellant then ran from the scene.[11]
4. The appellant's identity as the offender was not ascertained until 2016, when DNA technology linked him to the offences.[12]

1. Five days after the appellant committed the offences against P, he committed further sexual offences, this time against a 9‑year‑old female. Late on the afternoon of 8 November 1994, the victim was walking with friends. The appellant approached and befriended the victim and persuaded her to leave her friends and walk home with him. He took her to bushland where he made the child undress. The appellant then sexually penetrated the child, twice in the vagina, twice in the anus and once in the mouth. During the course of this offending the appellant struck the child once in the head. As a result of the acts of vaginal and anal sexual penetration the child later required surgery to her perineum.[13]
2. On 14 February 1995, the appellant was convicted on his pleas of guilty of five counts of sexual penetration of a child under the age of 13 years.[14] On 15 March 1995 he was sentenced to a total effective sentence of 10 years' imprisonment with eligibility for parole.[15]

1. The appellant was 45 years old when he was sentenced but 21 at the time of the commission of the offences with which this appeal is concerned.[16]
2. The appellant had a dysfunctional childhood and adolescence characterised by neglect, instability of care and alcohol abuse by caregivers. On at least 22 occasions he was placed in some kind of State care and, while in that care, reportedly suffered extensive physical and other kinds of abuse. The appellant has had few positive role models in his life, little, if any, community support and no real connection with his indigenous heritage. As an adult he has had no opportunity to develop appropriate interpersonal coping skills.[17]
3. The appellant has a long and extensive criminal history. Most significantly he has a history of prior convictions for offences involving serious sexual violence towards girls and women. That history commenced when the appellant was 14 years of age, when he was convicted of two counts of aggravated sexual assault against a 14‑year‑old girl and sentenced to a term of detention.[18]
4. In February 1990, when the appellant was aged 17, he committed four counts of aggravated sexual penetration without consent, including acts of oral, vaginal and anal penetration and one count of deprivation of liberty[19] accompanied by significant physical violence against a 28‑year‑old female victim.[20] Again, he was sentenced to a term of detention.[21]
5. In September 1992, as an adult, the appellant was convicted of one count of assault occasioning bodily harm and was sentenced to 10 months' imprisonment. This offence was a precursor to sexual activity.[22]
6. Next, the appellant committed the offences referred to in [13] above.
7. On 16 December 1999, 34 days after he was released on parole from the sentence referred to in [14] above,[23] the appellant committed four offences, including acts of sexual penetration and an attempted sexual pentration, against an adult female victim in her home. Then, on 22 January 2000, he committed two further offences, including an act of sexual penetration without consent, against another adult female victim in her home. On 15 August 2000, he was convicted on his pleas of guilty of these six offences.[24] On 17 August 2000, he was sentenced to a total effective sentence of 12 years imprisonment without parole.[25]

1. Before the appellant was released from the 12‑year sentence referred to in the previous paragraph, proceedings were commenced by the Director of Public Prosecutions (WA) under the Dangerous Sexual Offenders Act 2006 (WA) (DSO Act). On 22 October 2008 McKechnie J made a continuing detention order pursuant to s 17(1)(a) of the DSO Act.[26] Subsequently, this order has been reviewed in accordance with the provisions of that Act. It is unnecessary to refer to all of those reviews. It is sufficient to observe that:

(a) The appellant remained in custody subject to the continuing detention order until 24 June 2014 when he was released by Simmonds J on a 10‑year supervision order.[27]

(b) For almost 12 months he was at large on the supervision order and he did not commit a sexual offence. On 29 May 2015, he failed to attend an appointment and on 16 June 2015, urinalysis revealed the presence of methylamphetamine. On 30 October 2015, the appellant was sentenced in the Supreme Court for two offences of contravening the supervision order and was given a total effective sentence of 7 months' imprisonment backdated to commence on 18 June 2015,[28] the day he was returned to custody.

(c) On 14 March 2016, the appellant's supervision order was rescinded by Simmonds J and the appellant was again made subject to a continuing detention order.[29]

(d) On 31 March 2017, the appellant's continuing detention order was affirmed upon review.[30]

(e) At the time he was sentenced by Bowden DCJ, the appellant's next review under the DSO Act was listed for 1 April 2019. Absent the sentence imposed by his Honour, the appellant's continuing detention would have been subject to judicial review every two years thereafter: see s 29(2)(b) DSO Act.[31]

1. The sentence imposed by Bowden DCJ will expire on or about 23 November 2030. During this imprisonment, the appellant remains subject to the continuing detention order. However, the review period to which the appellant is subject is extended by the period during which the appellant is in custody serving the term of imprisonment imposed by his Honour: see s 29(3) DSO Act. Accordingly, if the appellant is granted parole at his earliest eligibility date of 23 November 2028, he will be eligible for review under the DSO Act on 1 October 2029. If the appellant is not granted parole he will not be eligible for review until 1 October 2031. Thus, the appellant may be required to remain in custody after the expiration of the sentence imposed by Bowden DCJ for approximately a further 10 months and 1 week before any review takes place under the DSO Act.

1. Defence counsel before Bowden DCJ set out in detail the history of the proceedings under the DSO Act.[32] Defence counsel submitted that the period of detention served by the appellant 'ought properly be taken into account in sentencing'.[33] In addition, it was submitted that his Honour should have regard to the appellant's age at the time of committing the offences,[34] his background of deprivation and abuse,[35] his late pleas of guilty,[36] and that the appellant received a 10‑year sentence for the offences committed five days after the present offences.[37]
2. It was submitted on behalf of the State that the time spent in detention as a result of the appellant being subject to a continuing detention order was an irrelevant consideration having regard to s 8(2) of the Sentencing Act 1995 (WA). More generally, it was submitted on behalf of the State that the first limb of the totality principle did not apply in the circumstances of this case because its rationale of assumed rehabilitation plainly did not apply to the appellant. Accordingly, no reduction should be made for totality by reason of the sentence imposed upon the appellant for the offences that occurred on 8 November 1994.[38] The State submitted that apart from the appellant's late pleas of guilty there were no mitigating factors.[39]

1. It is clear from the sentencing remarks that the sentencing judge had regard to the appellant's age at the time of the offending and his dysfunctional childhood and adolescence.[40] His Honour also had regard to the appellant's pleas of guilty. After noting that they had been entered late, at a time when charges had been listed for trial, and the complainant had been proofed and ready to give evidence, his Honour reduced the sentences pursuant to s 9AA of the Sentencing Act by 10%.[41]
2. His Honour referred to the appellant's extensive history of prior offending. His Honour observed that the offences for which the appellant was being sentenced were not, in 1994, isolated or uncharacteristic. Further, the continuation of similar offending required that more weight be given to retribution and deterrence.[42]
3. The sentencing judge acknowledged that the appellant had been declared a dangerous sex offender and had been subject to a continuing detention order since 22 October 2008. His Honour accepted that since 2008 the appellant had been in custody pursuant to orders made under the DSO Act 'for all bar 12 months' and a period of imprisonment for 7 months for breaching a supervision order.[43] As to this period his Honour said:[44]

I recount [sic] the position relating to the Dangerous Sex Offenders Act because it is part of the personal circumstances and of course it's relevant as to how long you've spent in custody before you start serving any sentence that I impose upon you. (emphasis added)

1. His Honour noted that while recent reports used in proceedings under the DSO Act referred to the appellant as having shown some acceptance of responsibility for his offending, the appellant nevertheless represented a significant danger of serious sexual reoffending in the community.[45]
2. With respect to the appellant's offending, his Honour described it as 'towards the higher end of the scale',[46] and 'clearly persistent and unrelenting and involved various forms of penetration'.[47]
3. His Honour referred to P's victim impact statement which described the devastating impact that the offending had on her.[48] His Honour described P as having suffered 'a terrible ordeal' at the hands of the appellant.[49]
4. His Honour summarised the offending in this way:[50]

[Y]ou took a young victim from the safety and sanction [sic - sanctuary] of her bedroom and into the terror of the [inaudible] at night. You cruelly degraded her and subjected her to a cowardly and humiliating sexual attack for no reason other than you were unable to control your own sexual urges.

Now, the community [inaudible] the courts to protect children from this sort of behaviour. I mean, young children are entitled to be in their bedrooms in their own home without a fear that they're going to be taken out of their bedrooms into bush areas and sexually assaulted.

1. His Honour acknowledged that the sentence he had to impose upon the appellant was for offences that occurred long ago and that he had already spent a long period in custody.[51] His Honour took this factor into account.[52]
2. His Honour expressly had regard to the totality principle.[53] In doing so, it is clear his Honour rejected the prosecutor's submission that the totality principle should not be applied in the appellant's case. In considering how that principle applied, his Honour had regard to the sentence imposed for the serious offences committed shortly after the present offences and the delay of almost 23 years between the commission of the offences and the appellant's sentencing. His Honour observed that in that time, the appellant had engaged in significant other offending and that he had not been rehabilitated.[54]

1. The ground of appeal relied upon by the appellant is in these terms:[55]

The total effective sentence imposed by the learned sentencing judge infringed the first limb of the totality principle in particularly [sic] given:

1. The appellants [sic] course of criminal conduct as a whole taking into account the 10 year sentence imposed on the appellant in 1995 for similar offences committed 5 days after the current offences; and
2. The appellant being subject to a continuing detention order pursuant to the Dangerous Sexual Offenders Act.

1. Senior counsel for the appellant made it clear that she was not alleging any express error by the learned sentencing judge.[56]
2. In his written submissions, the appellant submitted that the total effective sentence of 12 years 6 months' imprisonment infringed the first limb of the totality principle, having regard to the following factors:[57]

(1) Since 1995, the appellant has spent a little over 1 year out of custody.

(2) The delay in charging the appellant resulted in a sentence that was wholly cumulative on the term of 10 years' imprisonment imposed on 15 March 1995.

(3) The total effective sentence imposed by Bowden DCJ is equivalent to an 18‑year 9‑month sentence pre‑transitionally.

(4) The total effective sentence imposed for offending committed by the appellant within a five‑day period when he was 21 years of age equated to a 28‑year 9‑month term of imprisonment pre‑transitionally, or a 19‑year 2‑month sentence post‑transitionally.

(5) A total effective sentence of such magnitude was not in keeping with sentences imposed in comparable cases, for example, Keating v The State of Western Australia;[58] SCN v The State of Western Australia[59] and B v The Queen.[60]

1. In oral submissions, senior counsel for the appellant focused on the combination of what she said was approximately 6 years[61] the appellant had been detained pursuant to the DSO Act, the sentence that was imposed upon him on 15 March 1995, and the period of time, which she estimated at 10 months, that the appellant must serve after the expiration of the present sentence before his detention under the DSO Act will be reviewed.[62] Senior counsel accepted that her submission that this court should take into account periods of detention other than as a result of the imposition of a sentence, was a proposition that broadened the scope of the first limb of the totality principle as it has been understood.[63] Senior counsel submitted that this court should extend the scope of the totality principle to take into account detention under the DSO Act.[64]

1. The State submitted that the total effective sentence imposed by Bowden DCJ did not infringe the first limb of the totality principle. The State accepted, having regard to Mill v The Queen[65] and Carr v The State of Western Australia,[66] that the totality principle applied where an offender has already served a term of imprisonment for a prior offence or offences close in time to the offences under consideration.[67]
2. The State submitted that assumptions about rehabilitation arising from the service of an earlier sentence did not arise in the present case because it was clear on the evidence before the learned sentencing judge that the appellant had not been rehabilitated.[68] The State submitted that the extent to which the sentence ought to have been reduced for totality reasons was limited,[69] as the appellant remained a serious danger to the community and, in particular, posed a threat to women and children.[70]
3. In oral submissions, counsel for the State accepted that the detention of the appellant under the DSO Act was relevant as a personal circumstance to the sentencing exercise by Bowden DCJ, and that his Honour had expressly taken the period of detention into account on this basis.[71]
4. The State submitted that in examining the cumulative effect of the sentence imposed upon the appellant on 15 March 1995, the proper approach is to 'convert the earlier sentence to a post‑transitional sentence' of 6 years 8 months.[72]

1. The following general principles apply to this appeal:

(1) Sentencing is a discretionary exercise. An appellate court can intervene only if the appellant demonstrates either an express or implied material error. Express error involves acting on a wrong principle, for example by mistaking the law or facts or taking into account an irrelevant matter. Implied error arises where the end result is so unreasonable or unjust that the court must conclude that a substantial wrong has occurred. Thus, an appellate court cannot substitute its own opinion for that of the sentencing court merely because the appellate court would have exercised a sentencing discretion differently.

(2) The range of sentences customarily imposed for a crime does not establish the range of a sound exercise of the sentencing discretion. Sentences customarily imposed in comparable cases provide a yardstick or reference point for ensuring broad consistency in sentencing, bearing in mind the scope for significant variations in relevant sentencing factors, and that there is no single correct sentence. What is important is the unifying principles which sentences imposed in comparable cases reveal and reflect.

(3) When this court dismisses an appeal against sentence and when it resentences on a successful appeal, its decision does not fix the upper or lower limit of the range.

(4) The real question is whether the total effective sentence imposed on the offender is unreasonable or plainly unjust.

1. The totality principle is a common law sentencing principle, statutorily acknowledged in this State by s 6(3)(b) of the Sentencing Act. The totality principle generally applies when an offender is sentenced for more than one offence.
2. In Mill v The Queen, the High Court approved the description of the principle as follows:[73]

The effect of the totality principle is to require a sentencer who has passed a series of sentences, each properly calculated in relation to the offence for which it is imposed and each properly made consecutive in accordance with the principles governing consecutive sentences, to review the aggregate sentence and consider whether the aggregate is 'just and appropriate'. The principle has been stated many times in various forms: 'when a number of offences are being dealt with and specific punishments in respect of them are being totted up to make a total, it is always necessary for the court to take a last look at the total just to see whether it looks wrong[']; 'when ... cases of multiplicity of offences come before the court, the court must not content itself by doing the arithmetic and passing the sentence which the arithmetic produces. It must look at the totality of the criminal behaviour and ask itself what is the appropriate sentence for all the offences'. (references omitted)

1. In this State, a generally accepted statement of the totality principle was made by McLure JA (with whom Steytler P & Miller JA agreed) in Roffey v The State of Western Australia,[74] who wrote:

The legal principles relevant to the disposition of this appeal are not in dispute. An appellate court is not entitled to intervene merely because it would have exercised the sentencing discretion in a manner different than the sentencing judge. It can only intervene if the sentencing judge has made an express or implied material error of fact or law.

The appellant relies on the totality principle which comprises two limbs. The first limb is that the total effective sentence must bear a proper relationship to the overall criminality involved in all the 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.

The second limb 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: Martino v The State of Western Australia [2006] WASCA 78 [16]. An aggregate sentence may be inappropriately long under the first limb even if it cannot be described as crushing: Jarvis v The Queen (1998) 20 WAR 201, 216 (Anderson J).

The practical effect of the totality principle is ordinarily to arrive at an aggregate sentence that is less than that which would be arrived at by simply adding up all the terms appropriate for the individual offences: R v Holder [1983] 3 NSWLR 245, 260 (Street CJ). A rationale for the totality principle is that there is assumed rehabilitation and reduced demand for retribution after the initial sentences have been served. Where the principle of totality comes into effect, it is of little importance how the ultimate aggregate is made up: R v Holder (260).

1. The totality principle is applicable to cases other than where a single judge is sentencing an offender for more than one offence. For example, in Mill v The Queen, the offender committed three armed robberies, two in Victoria and one in Queensland, over a six‑week period. For the Victorian offences, the offender was sentenced to 10 years' imprisonment with a non‑parole period of 8 years. After he was released on parole, the offender was arrested and extradited to Queensland. There, he was convicted of the armed robbery he committed in Queensland and was sentenced to 8 years' imprisonment with a minimum term of 3 years.[75] The High Court held that the totality principle applies where an offender comes to be sentenced many years after the commission of an offence, where in the supervening years he had served a sentence imposed in another State for an offence of the same nature and committed at about the same time.[76]
2. In Mill v The Queen, the court said that the proper approach for the sentencing judge in Queensland to have taken was:[77]

[T]o ask what would be likely to have been the effective head sentence imposed if the applicant had committed all three offences of armed robbery in one jurisdiction and had been sentenced at one time. It is most unlikely that the applicant would have been sentenced to eight years on the first count, eight years with six years of it concurrent on the second count, and eight years cumulative on the third count, making an aggregate head sentence of 18 years.

1. In LYN v The State of Western Australia,[78] the offender was sentenced in 2005 to a total effective sentence of 4 years' imprisonment for various offences of a sexual nature committed against his daughter, AP. In 2017, he was sentenced for various offences also of a sexual nature, committed against his other two daughters, GL and AJ, which occurred in the same period as the offences against AP. For the offences committed against GL and AJ, the appellant received a total effective sentence of 10 years 3 months' imprisonment.[79] The appellant appealed against this sentence.
2. This court accepted the common position adopted by the parties in that appeal; that the first limb of the totality principle applied in the sentencing for the offences against GL and AJ. Consequently, the sentencing judge was obliged to take into account the sentence imposed for the offences against AP.[80] Thus, the ultimate question in the appeal was: did the total effective sentence of 14 years 3 months' imprisonment infringe the first limb of the totality principle? This court considered that it did infringe the first limb of the totality principle, and reduced the total effective sentence imposed in 2017 to 8 years' imprisonment.[81]
3. We note McLure JA's observation in Carr[82] that there are limited circumstances where the totality principle can apply, at least by way of analogy, notwithstanding that sentences for prior offences have been completed.
4. The rationale for the totality principle was explained by Anderson J in Vlek v The Queen,[83] as follows:

[W]hen a second sentencing court is considering the imposition of a cumulative sentence, there are mitigating factors arising out of that circumstance itself. When a sentence is to be cumulative on sentences already being served there is usually a discount, and the reasons for this include, no doubt the instinctive acceptance by sentencing courts that a cumulative sentence is, in itself, a harsher sentence than one of the same length which is to take effect immediately ... Furthermore, ... the second sentencing court may see (or assume) that the prisoner has made progress towards rehabilitation during the term of the first sentence. In addition, there is not the same demand for retribution where the prisoner has already suffered loss of liberty and where there has already been an 'emphatic denunciation by the community' of his or her criminal behaviour and attitude ... Neither is there the same requirement in the second sentence for personal deterrence because that most likely will already have been achieved in large measure by the first sentence. In other words, not as much emphasis is required in passing the second sentence on matters such as prevention, denunciation, deterrence and reform as would otherwise be the case.

1. The objects of the DSO Act, as set out in s 4, are:

(a) to provide for the detention in custody or the supervision of persons of a particular class to ensure adequate protection of the community and of victims; and

(b) to provide for continuing control, care, or treatment, of persons of a particular class.

1. The DSO Act applies to persons who are a serious danger to the community. A person is a serious danger to the community if a court is satisfied, on acceptable and cogent evidence and to a high degree of probability, that there is an unacceptable risk that, if the person were not subject to a continuing detention order or a supervision order, the person would commit a serious sexual offence: s 7(1) and (2) of the DSO Act.
2. An application for a continuing detention order or supervision order can only be made in respect of an 'offender'. An 'offender' is defined by s 3 as a person referred to in s 8(1) of the DSO Act, that is:

(a) [a person] who is under a custodial sentence for a serious sexual offence; or

(b) [a person] who has been under a custodial sentence for a serious sexual offence and who, at all times since being discharged from that sentence, has been under a custodial sentence for another offence or other offences.

1. If the Supreme Court finds that an offender is a serious danger to the community, the court must order that the offender be detained in custody for an indefinite term for control, care, or treatment (a continuing detention order), or make an order that the offender, when not in custody, is to be subject to stated conditions that the court considers appropriate (a supervision order): s 17(1)(a) and (b) of the DSO Act. The paramount consideration in whether to make an order under subsection (1)(a) or (b) is the need to ensure adequate protection of the community: s 17(2) of the DSO Act.
2. A continuing detention order is subject to review: s 29 and s 30 of the DSO Act. If, on such a review, the court does not find that the person remains a serious danger to the community it must rescind the continuing detention order, or if the court finds that the person remains a serious danger to the community, it must either affirm the continuing detention order or make a supervision order: s 33 of the DSO Act.
3. Section 40(1) of the DSO Act provides that proceedings under the DSO Act or any appeal under the DSO Act, are taken to be criminal proceedings for all purposes. Subsection (2) states that subsection (1) does not require anything that is to be evidenced for the purposes of the DSO Act to be evidenced to a higher standard than is required by s 7(2).
4. We make the following observations:

(1) The stated objects of the DSO Act in s 4 concern the detention or supervision of an offender to ensure adequate protection of the community and of victims, and to provide continuing control, care, or treatment, of offenders.

(2) An offender cannot be made the subject of a continuing detention order or a supervision order unless he or she is a serious danger to the community, that is, where a court is satisfied that the person is an unacceptable risk and that if the person were not subject to a continuing detention order or a supervision order, the person would commit a serious sexual offence.

(3) In deciding whether to make a continuing detention order or supervision order, the paramount consideration is the need to ensure adequate protection of the community.

(4) Although proceedings under the DSO Act are 'taken to be criminal proceedings for all purposes', the making of a continuing detention order or a supervision order does not constitute a conviction of, or a finding of, an offence.

1. It is important to observe from the outset, that the appellant does not contend that Bowden DCJ, when sentencing the appellant for the offences committed on 3 November 1994, failed to take into account the sentence imposed for the offences committed on 8 November 1994, or the time the appellant spent in custody whilst subject to the continuing detention order. Nor is it contended that his Honour failed to take into account any period the appellant will be subject to the continuing detention order between the time the appellant is released, whether on parole or otherwise, from the sentence imposed by Bowden DCJ, and the time of the appellant's review under the DSO Act.
2. As we read the sentencing remarks, his Honour took into account the sentence imposed for the offences committed on 8 November 1994 and the time the appellant spent in custody pursuant to the continuing detention orders. His Honour treated the latter period as relevant to the appellant's personal circumstances.
3. In our opinion, his Honour's approach was correct. The first limb of the totality principle requires that the total effective sentence imposed on an offender who has committed multiple offences must bear a proper relationship to the overall criminality involved in all of the offences (including those, if any, in respect of which the offender is still serving a term of imprisonment), viewed in their entirety, and after having regard to all relevant circumstances, including those referable to the offender personally (and including, for example, the desirability of accommodating any wish to rehabilitate), and the total effective sentences imposed in comparable cases.
4. Some circumstances and sentencing factors (for example, the offender's personal circumstances) will be relevant both in determining the individual sentences of imprisonment and in determining the total effective sentence. The circumstances and sentencing factors that inform a sentencing judge's decision in relation to individual sentences are not wholly separate and distinct from the circumstances and sentencing factors that inform a sentencing judge's application of the totality principle. There is some overlap.
5. Plainly, Bowden DCJ was required to assess the overall criminality of all of the offences committed by the appellant on 3 and 8 November 1994. The making of a continuing detention order does not constitute a conviction of, or a finding of, an offence, and any period of detention is not a sentence.
6. However, in our opinion, a period of detention spent in a prison pursuant to a continuing detention order is an aspect of an offender's personal circumstances. It should be taken into account in the application of the totality principle (as well as in determining the individual sentences) because the effect of such a period, although for the objects stated in s 4 of the DSO Act, is to deprive the offender of their liberty in that the offender is detained in a prison. The period of detention in a prison may operate to reduce, to some extent, the length of an otherwise appropriate total effective sentence of imprisonment for all of the offences in question because the deprivation of liberty, pursuant to the continuing detention order, may lessen, to some extent, the demands of sentencing factors such as personal and general deterrence. For example, an offender's progress while subject to a continuing detention order may operate favourably for sentencing purposes if it is apparent that the offender has made significant progress towards rehabilitation and reform.
7. Bowden DCJ does not appear to have been provided with precise information about how long the appellant had been in custody pursuant to the continuing detention order. As already stated, his Honour considered the appellant had been in custody pursuant to the continuing detention order since 2008 for all but 12 months, thus, approximately 9 years. Senior counsel asserted that the period was approximately 6 years. By our calculation, the period is approximately 7 years 7 months having regard to these events:

(1) On 22 October 2008, McKechnie J made a continuing detention order in respect of the appellant.

(2) On 24 June 2014, Simmonds J rescinded the continuing detention order and made a supervision order.

(3) On 30 October 2015, the appellant was sentenced in the Supreme Court in respect of two offences of contravening his supervision order. A total of 7 months' imprisonment, backdated to 18 June 2015, was imposed.

(4) On 14 March 2016, Simmonds J rescinded the appellant's supervision order and made a continuing detention order in respect of the appellant.

(5) On 29 September 2016, the appellant was charged on indictment GER 73 of 2016 with the offences committed on 3 November 1994.

(6) On 24 May 2018, the appellant was sentenced by Bowden DCJ (to take effect from 24 May 2018) for the 3 November 1994 offences.

1. Relying on the above dates, it appears the appellant was the subject of a continuing detention order from:

(1) 22 October 2008 - 24 June 2014 (5 years 8 months); and

(2) 14 March 2016 - 24 May 2018 (2 years 2 months).

However, the appellant's criminal history[84] reveals that, during period (1), the appellant served approximately 3 months' imprisonment for a number of offences under the Prisons Act 1981 (WA).

1. We do not accept the State's submission that the period the appellant has spent in custody pursuant to the continuing detention order should not be taken into account. While his Honour's finding that the appellant had not been rehabilitated was not challenged, that does not mean that the fact that the appellant has spent a lengthy period in custody pursuant to the continuing detention order has no relevance to the operation of the first limb of the totality principle. As Anderson J pointed out in Vlek,[85] the rationale for the totality principle is not anchored only in assumed or actual rehabilitation, although where, as in this case, an appellant has not in fact been rehabilitated, it is a matter to be taken into account.
2. The proper approach mandated by the High Court in Mill v The Queen requires this court to consider the likely sentence that would have been imposed upon the appellant if he had been sentenced at one time for the offences he committed on 3 and 8 November 1994, and comparing it with the aggregate sentence actually imposed upon the appellant for the offences.[86] If one was to combine the total effective sentence imposed by Bowden DCJ with the sentence imposed for the offences committed on 8 November 1994, the combined length would be 22 years 6 months' imprisonment. This calculation is complicated by the fact that the sentencing regime in place when the appellant was sentenced for the 8 November 1994 offences was different from the sentencing regime under which the appellant was sentenced by Bowden DCJ. It was accepted by the parties that the sentence imposed on 15 March 1995 may be 'converted', for the purposes of comparison, to a sentence of 6 years 8 months' imprisonment.[87] Thus, the ultimate question to be answered is whether the total effective sentence of 19 years 2 months' imprisonment infringed the first limb of the totality principle.
3. The circumstances of the offences committed by the appellant on 3 and 8 November 1994 do not need to be repeated. It is beyond question that the offences committed by him were of the utmost gravity. As serious as the offences were on 3 November 1994, the offences committed on 8 November 1994 were, if anything, even more serious. They involved the coercion of a very young and vulnerable child into bushland, where the appellant sexually penetrated her in such a way as to inflict serious physical injuries that required surgery. Having regard to the appellant's prior criminal history at that point, it could not be said that the offences under consideration were uncharacteristic of the appellant. To the contrary, they were entirely consistent with his prior offending to that point. He plainly posed then a danger to the community.
4. Unfortunately, subsequent events, being the appellant's further offending and his performance while subject to a supervision order, show that the appellant remains unrehabilitated and poses a serious risk of reoffending.
5. The appellant's youth in 1994 must be considered. It is clear from the sentencing remarks of the judge who sentenced the appellant for the offences committed on 8 November 1994, that he imposed what might be seen to be a lenient total effective sentence by reason of the appellant's youth and pleas of guilty. By the time the appellant came to be sentenced by Bowden DCJ for the offences committed on 3 November 1994, he was no longer youthful and so the increased importance of efforts to rehabilitate a youthful offender was no longer applicable.[88] Nevertheless, the fact of the appellant's youth when he committed the offences remained a mitigating factor. Other mitigating factors to be taken into account included the pleas of guilty, the appellant's dysfunctional childhood and adolescence, and the abuse that he suffered while he was young. The time he has spent in custody subject to the continuing detention order and the period referred to in [23] above were relevant considerations in the application of the totality principle.
6. However, having regard to all relevant circumstances and all relevant sentencing factors (including the need for both general and personal deterrence, the protection of the community and appropriate punishment), the total effective sentence imposed by Bowden DCJ did not infringe the first limb of the totality principle.
7. We have had regard to the comparable cases cited by the appellant.[89] It is unnecessary to examine them in detail. They are examples of very serious offending but have features which are distinctly different from the present case. In our opinion, they do not assist the appellant.
8. Having regard to all relevant circumstances and all relevant sentencing factors (including the need for both general and personal deterrence, the protection of the community, appropriate punishment and the matters of mitigation), the total effective sentence imposed by Bowden DCJ did not infringe the first limb of the totality principle. The total effective sentence was not unreasonable or plainly unjust.
9. While we would grant leave to appeal, we would dismiss the appeal.

1. The appellant appeals against sentence on the single ground:

The total effective sentence imposed by the learned sentencing judge infringed the first limb of the totality principal particularly given:

1. The appellant's course of criminal conduct as a whole taking into account the 10 year sentence imposed on the appellant in 1995 for similar offences committed 5 days after the current offences; and
2. The appellant being subject to a continuing detention order pursuant to the Dangerous Sexual Offenders Act.

1. The facts of the appellant's offending and the sentences imposed are set out in the reasons of Buss P and Mazza JA, which I have had the advantage of reading in draft. I agree with their Honour's conclusion that the appeal should be dismissed, and generally with their reasons for that conclusion.
2. I would, however, approach differently the question of how the continuing detention order under the Dangerous Sexual Offenders Act may be taken into account in the application of the totality principle.
3. The fact that the appellant has been subject to an order under the Dangerous Sexual Offenders Act in relation to other offences may be a relevant matter to be taken into account in determining the appropriate sentence to be imposed. In the same way, the sentencing court will have regard to the offender's antecedents, including any history of offending and previous periods of imprisonment. The fact that the offender has made progress towards rehabilitation while subject to an order may also be relevant.
4. But the time that that an offender has been subject to a continuing detention order, and the time they may be required to remain in custody at the expiration of sentence before any review takes place under the Dangerous Sexual Offenders Act, are not relevant in the application of the first limb of the totality principle.
5. The totality principle is concerned with the appropriate relativity or proportion between the total criminality involved in the offending and the total sentence imposed.[90] In Postiglione v The Queen, McHugh J said:

The totality principle of sentencing requires a judge who is sentencing an offender for a number of offences to ensure that the aggregation of the sentences appropriate for each offence is a just and appropriate measure of the total criminality involved...

The application of the totality principle therefore requires an evaluation of the overall criminality involved in all the offences with which the prisoner is charged. Where necessary, the Court must adjust the prima facie length of the sentences downward in order to achieve an appropriate relativity between the totality of the criminality and the totality of the sentences.[91]

1. An application for an order under the Dangerous Sexual Offenders Act may only be made in relation to an offender who is under a custodial sentence for a serious sexual offence or who has been under a custodial sentence for a serious sexual offence and who, at all times since being discharged from that sentence, has been under a custodial sentence for another offence or other offences.[92] But the making of an order is based on the court being satisfied, by reference to the factors set out in s 7(3), that the person is a serious danger to the community. The paramount consideration in deciding whether to make an order under the Act is the need to ensure adequate protection of the community.[93] An order for continuing detention is not imposed as punishment for any offence which the offender has committed. Unlike a sentence, it is not required to be commensurate with the seriousness of the offence.
2. Further, a continuing detention order is for an indefinite term[94] ‑ it is subject to periodic review, but has effect until rescinded by further order of the court. The period for which an offender may be subject to continuing detention is not related to the criminality of the offences committed.
3. Because orders under the Dangerous Sexual Offenders Act are based on such different factors, when considering the appropriate relativity between the totality of an offender's criminality and the totality of the punishment to be imposed, the existence of a continuing detention order, and the period of detention already served or to be served pursuant to an order, are relevant to neither side of the equation.

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

[3] ts 144 ‑ 146. The transcript records that when each charge was put to the appellant there was 'no audible answer'. The appellant's sentencing proceeded on the clear basis that the appellant in fact entered a plea of guilty to each charge.

[8] ts 204. See also certificate of final outcome WAB 32 ‑ 34.

[13] Sentencing ts 13 - 15, 15 March 1995.

[15] Sentencing ts 16 - 17, 15 March 1995. The sentence took into account time already served in custody on remand.

[20] Director of Public Prosecutions (WA) v Merritt [2017] WASC 90 [9].

[25] Sentencing ts 27 - 28, 17 August 2000.

[26] Director of Public Prosecutions (WA) v Comeagain [2008] WASC 235.

[27] Director of Public Prosecutions (WA) v Comeagain [No 5] [2014] WASC 214 [221] ‑ [222].

[28] The State of Western Australia v Merritt [2015] WASCSR 223.

[29] Director of Public Prosecutions (WA) v Comeagain [No 6] [2016] WASC 100.

[30] Director of Public Prosecutions (WA) v Comeagain [No 7] [2017] WASC 90.

[31] Appellant's sentencing submissions, par 6.

[32] Appellant's sentencing submissions, par 6.

[33] Appellant's sentencing submissions, par 12.

[38] Respondent's sentencing submissions, pars 11 ‑ 14.

[39] Respondent's sentencing submissions, par 15.

[57] Appellant's submissions, par 26; WAB 13 - 14.

[58] Keating v The State of Western Australia [2007] WASCA 98.

[59] SCN v The State of Western Australia [2017] WASCA 138.

[60] B v The Queen [2002] WASCA 236.

[65] Mill v The Queen [1988] HCA 70; (1988) 166 CLR 59.

[66] Carr v The State of Western Australia [2006] WASCA 125.

[67] Respondent's submissions, pars 16 - 21; WAB 22 - 24.

[68] Respondent's submissions, par 21; WAB 24.

[69] Respondent's submissions, par 21; WAB 24.

[70] Respondent's submissions, pars 30 ‑ 32; WAB 27 - 28.

[73] Mill v The Queen (62 - 63). See also Postiglione v The Queen [1997] HCA 26; (1997) 189 CLR 295, 307 ‑ 308 (McHugh J), 340 ‑ 341 (Kirby J).

[74] Roffey v The State of Western Australia [2007] WASCA 246 [23] ‑ [26].

[78] LYN v The State of Western Australia [2019] WASCA 45.

[79] LYN v The State of Western Australia [1].

[80] LYN v The State of Western Australia [12] - [13].

[81] LYN v The State of Western Australia [48] - [54].

[82] Carr v The State of Western Australia [7].

[83] Vlek v The Queen (Unreported, CCA, Library No 990153C, 29 March 1999), 10.

[84] Appellant's criminal history, page 2; WAB 103.

[88] Williams v The State of Western Australia [2018] WASCA 161 [49].

[89] Keating v The State of Western Australia; SCN v The State of Western Australia; B v The Queen.

[90] Mill v The Queen [1988] HCA 70; (1988) 166 CLR 59, 63.

[91] Postiglione v The Queen [1997] HCA 26; (1997) 189 CLR 295, 307 ‑ 308.

[92] Dangerous Sexual Offenders Act, s 8(1).

[93] Dangerous Sexual Offenders Act, s 17(2).

[94] Dangerous Sexual Offenders Act, s 17(1)(a).