Criminal law - Sentencing - Assault occasioning bodily harm - Aggravated sexual penetration - Whether sentences should be concurrent or cumulative - Allowance for plea of guilty - Application of totality principle

Sentencing Act 1995, s 8(5)

1 STEYTLER J: I have had the advantage of reading, in draft, the judgment of Miller J. I agree with it and with his Honour's conclusion that leave to appeal should be granted, that the appeal should be allowed, that the sentence imposed by the learned sentencing Judge should be set aside and that there should be substituted, in lieu, a sentence of 6 years, 8 months' imprisonment, with eligibility for parole, such sentence to be served cumulatively upon sentences being served by the appellant.

2 WHEELER J: I have had the advantage of reading in draft the reasons for decision of Miller J. I agree with those reasons and have nothing to add.

3 MILLER J: The appellant was indicted in the District Court at Perth on four counts. The first count alleged that on 28 January 2002 at Midvale he unlawfully assaulted McG and did her bodily harm. The second count alleged that on the same date and at the same place he unlawfully detained McG. The third count alleged that on the same date and at the same place he sexually penetrated McG by penetrating her vagina with his penis, without her consent. There were two circumstances of aggravation alleged, namely that at the time the appellant did bodily harm to the complainant and threatened to kill her. There was a fourth count which alleged that on the same date and at the same place the appellant made a threat with intent to compel the complainant to do an act she was lawfully entitled to abstain from doing.

4 The appellant was tried between 17 February 2003 in the District Court. At the commencement of his trial he pleaded guilty to the first count on the indictment but not guilty to the other counts. He was found guilty on count 2 and on count 3 with one circumstance of aggravation only (doing bodily harm), and acquitted on count 4.

5 At the conclusion of his trial the appellant was sentenced by Viol DCJ to imprisonment for 11 years, that term to be served cumulatively on sentences being served at that time by the appellant. The appellant was ordered to be eligible for parole. The sentence was made up as follows:

The sentences imposed on counts 1 and 3 were ordered to be served cumulatively and the sentence on count 2 concurrently.

6 The appellant appeals against the severity of his sentence on three grounds:

"1. The sentence of three years imprisonment for assault occasioning bodily harm was manifestly excessive and did not reflect any credit for the Applicants' plea of guilty.

2. The learned sentencing Judge erred in making the sentences of three years for assault occasioning bodily harm cumulative upon the sentence of eight years for aggravated sexual penetration given that all offences were part of the same course of conduct and should have attracted concurrent sentences.

3. The learned sentencing Judge was misinformed about the effect of the breach of parole days owed by the Applicant, with the result that liability to serve breach of parole days was not properly taken in to account."

7 On the day before the commission of the offences of which he was convicted, the appellant had been released from prison in Bunbury. He had travelled to Perth to see the complainant, who was the mother of his children. Whilst at the house the appellant made it clear that he was interested in having sex with the complainant. She made it clear that "this was not going to happen".

8 Whilst the complainant was giving lunch to her children, the appellant grabbed her by her ponytail and pulled her into the hallway of her house. There he hit her with a fist in the right eye, sending her into the wall. She fell to the floor and the appellant then began to kick her in what the complainant described as the stomach and the ribs. She said he kicked her very hard and six to eight times. She was then kicked around the head at least two or three times before she blacked out. She described the kicks to the head as quite hard.

9 When the complainant regained consciousness she found herself on the bed in the bedroom. Her legs were hanging off the bed. The appellant was standing in front of her and he told her to take off her pants. The bed was pushed up against the door to prevent the children from entering the room. The appellant then seized the complainant by the throat, causing her to gasp for breath. He pulled down the appellant's pants and when she struck him in retaliation, he hit her in the face whilst still holding her by the throat.

10 The appellant had sexual intercourse with the complainant without her consent and whilst doing so, held her to the bed by her arms. Shortly afterwards, the complainant ran from the house to a neighbour where she sought and obtained help.

11 In sentencing the appellant the learned sentencing Judge described the sexual assault as "a brutal, violent and unprovoked attack with no excuses". His Honour considered that there were very few mitigating circumstances which told in favour of the appellant. His Honour made reference to the appellant's bad record, which included a number of prior convictions for assault and a conviction for "threat to kill". In fact, the record of convictions revealed that as an adult, the appellant had been convicted of assault occasioning bodily harm on two occasions, grievous bodily harm on one occasion, common assault on one occasion, assaulting a public officer on three occasions and dangerous driving causing death.

12 The learned sentencing Judge considered that the appellant had no regard for the law or the rights of citizens to enjoy their life and their ordinary occupations, and pointed to the appellant's breach of parole in the commission of the offences which were before him.

13 His Honour considered that the totality principle was the prime consideration in sentencing but took the view that a substantial gaol term was required because of the appellant's record, the circumstances of the offence, the lack of mitigating factors and the need for deterrence.

14 The first ground of appeal contends that the sentence of 3 years' imprisonment for assault occasioning bodily harm was manifestly excessive and reflected no credit for the appellant's plea of guilty.

15 I have already pointed out that the appellant pleaded guilty to the offence of assault occasioning bodily harm at the commencement of his trial. The plea was therefore a late plea. Indeed, it was so late as to really merit very little, if any discount. The evidence in relation to the assault had necessarily to be given by the complainant and there was no saving in relation to the trial process. At most, the plea of guilty reflected an acceptance of responsibility in relation to the first count on the indictment: Cameron v The Queen (2002) 209 CLR 339 per Gaudron, Gallow and Callinan JJ at [11].

16 Whilst some reduction in sentence would generally be given where there has been a plea of guilty, there will be rare cases in which there are countervailing considerations of such significance that no reduction is appropriate: Pop v The Queen [2000] WASCA 283; (2000) 116 A Crim R 398 per Parker J at [41]. In the circumstances of this case it is very difficult to see that anything but a very minor discount was appropriate for the plea of guilty to the first count on the indictment.

17 The offence of assault occasioning bodily harm carries a maximum sentence of 5 years' imprisonment. The sentence imposed in this case was 3 years' imprisonment. Whilst counsel for the appellant argued that the offence was at the lower end of the scale by reason of the fact that there were only minor injuries suffered by the complainant, it seems to me that a sentence of 3 years' imprisonment, taking into account the facts of the case and some small discount for the plea of guilty, was well within the range of sentences that could have been imposed for the offence. The assault was clearly separate and distinct from the events that then followed. It could not be said that it was only directed at overcoming resistance to sexual advances. It deserved a substantial sentence to reflect the seriousness of it.

18 The complainant suffered injury. She sustained bruises and abrasions, a number of which are clearly visible in photographs of her which were tendered in evidence and made available to the Court. It is true that the injuries had no lasting effect, but the charge was only assault occasioning bodily harm, not doing grievous bodily harm.

19 Counsel for the appellant complained that no attempt was made by the learned sentencing Judge to differentiate between the injuries suffered in the initial assault, and those suffered in the sexual assault. This is true, but it was sufficient for the learned sentencing Judge to point out that there had been a number of injuries sustained in the initial attack and others whilst the sexual assault took place.

20 In my view it cannot be said that the sentence of 3 years' imprisonment for the offence of assault occasioning bodily harm was in any way excessive. I would therefore dismiss the first ground of appeal.

21 The second ground of appeal contends that the learned trial Judge erred in making the sentence on count 1 on the indictment cumulative on the sentence on count 3 on the indictment. It is contended that all offences were part of the same course of conduct and should have attracted concurrent sentences.

22 In this case there was a separation in time between the assault occasioning bodily harm and the sexual assault. Just how long it was the complainant was unable to say, because she had been rendered unconscious by the first assault.

23 Although the incidents that occurred in the house did occur in the space of a relatively short period of time, I would accept the respondent's submission that the first offence represented a different form of violence to that which was involved in the second (the sexual assault).

24 In R v White [2002] WASCA 112, McKechnie J (with whom Wallwork and Murray JJ agreed), comprehensively reviewed the authorities on the question whether sentences for conduct which occurs closely in time should be made concurrent or cumulative. His Honour pointed out (at [15]) that the question must depend upon individual judgment in the particular case. After reviewing R v Ruane (1979) 1 A Crim R 284, R v O'Rourke [1997] 1 VR 246, Oldham v The Queen [1999] WASCA 304 and Pieri v The Queen [2001] WASCA 357, his Honour said at [25] - [26]:

"25 The question commonly posed for answer by a sentencing Judge is whether the offences arise out of the same set of facts so that the sentences should properly be made concurrent, or whether the offences disclose entirely distinct conduct which should attract separate and therefore cumulative punishment. There is often no obvious answer as the authorities to which I have referred, and the further cases set out in Pieri illustrate. Ruane and Pieri are each examples where there was disagreement as to the correct approach.

26 There is no hard and fast rule. In the end a judgment must be made to balance the principle that one transaction generally attracts concurrent sentences with the principle that the overall criminal conduct must be appropriately recognised and that distinct acts may in the circumstances attract distinct penalties. Proper weight must therefore be given to the exercise of the sentencing Judge's discretion."

25 I would respectfully adopt the analysis of the cases by McKechnie J in R v White, and in particular, the passage in R v O'Rourke (supra) (at 253) where the Court said:

"What is necessarily required in every case, even cases of sexual and violent offenders, is a sound discretionary judgment as to whether there should be cumulation and, if so, whether such cumulation should be in relation to some or all of the counts and whether it should be in whole or in part."

26 The learned trial Judge was clearly conscious of the desirability of making sentences concurrent where the offences arose out of the same set of facts because in relation to count 2 on the indictment, the sentence was made concurrent with that imposed on count 3.

27 In the circumstances of this case, it was, in my view, open to the learned sentencing Judge to conclude that the offences the subject of counts 1 and 3 respectively were sufficiently separated in nature and in time as to justify cumulative sentences rather than concurrent sentences.

28 Further, the sentence imposed on count 3 was, in my view, an appropriate sentence in all the circumstances. As the learned sentencing Judge found, the sexual assault was a violent one which involved a degree of brutality and was inexcusable.

29 Counsel for the appellant drew attention to the decision of this Court in Oxwell v The Queen [2002] WASCA 2002, where Anderson J (with whom Wallwork and Parker JJ agreed), said that it is quite common for sentences of 7 to 9 years to be handed down in cases of a single instance of sexual penetration without consent involving violence. Whilst counsel for the appellant sought to distinguish Oxwell v The Queen on the basis that the complainant had there suffered fractured ribs, the observation made by Anderson J that a sentence of 7 to 9 years in a case of sexual penetration without consent involving violence is quite common, seems to me to be entirely applicable to this case. Here the appellant committed a violent sexual assault upon the complainant, involving sexual penetration without consent and violence in the circumstances in which I have already mentioned. The sentence of 8 years' imprisonment cannot, in my view, be considered excessive.

30 This ground contends that the learned sentencing Judge was misinformed about the effect of breach of parole days owed by the appellant, with the result that liability to serve breach of parole days was not properly taken into account. In essence, the ground contends that the learned sentencing Judge failed to take sufficiently into account the totality principle.

31 The learned sentencing Judge was given the wrong information in relation to the appellant's sentence and the breach of parole days he was required to serve. His Honour thought that the sentence being served by the appellant would cease on 27 September 2003. In fact, the appellant had been in custody between 28 January 2002 and 7 March 2003, in consequence of his parole being suspended, and there are a further 808 days which the appellant must serve to reach the maximum expiry date of his previous sentence, which is 20 May 2005.

32 The present position is that if the sentence of 11 years' imprisonment imposed by the learned sentencing Judge is accumulated upon the 808 days which the appellant must serve before his maximum release date is reached he will serve approximately 13 years' imprisonment.

33 There is no doubt that the appellant's outstanding breach of parole days are to be considered, not his earliest release date. This was made clear by Ipp J in McLean v The Queen [1999] WASCA 209 at [19] where his Honour said:

"Applying the principles expressed in Jarvis v The Queen, it follows that the possibility that the Parole Board might release the offender on parole is irrelevant in the sentencing process. On the other hand, as the outstanding parole days constitute a term of imprisonment that the applicant is obliged by statute to serve, this term should be taken into account when assessing the totality of the overall term of imprisonment to be imposed for the offences, the subject of this application."

34 In Jarvis v R (1993) 20 WAR 201, Ipp J conveniently stated the totality principle of sentencing (at 206 - 207) in the following terms:

"... in talking a 'last look' at the total imprisonment imposed, the court will continue to apply the principle that the sentence should be proportionate to the degree of criminality involved. That principle is, after all, basic to the law of sentencing: see Wicks v The Queen (1989) 3 WAR 372 at 379 - 380. The crushing effect of a term of imprisonment is merely one of the mitigating factors that is to be taken into account when determining whether a particular term of imprisonment is proportionate to the criminality evinced.

While the subjective effect of a cumulative sentence upon a particular individual is plainly relevant, it cannot be regarded as of paramount importance. The difficulty expressed in Vaitos (at 301) by O'Bryan J with the concept that a richly deserved sentence should be reduced because the offender may feel crushed by it aptly illustrates its limitations as a mitigatory force.

The overriding principle is accordingly that the aggregate sentence (even when punishment is being imposed for multiple offences) should fairly and justly reflect the total criminality of the offender's conduct: see Veen v The Queen (No 2) [1988] HCA 14; (1988) 164 CLR 465; Evangelista v The Queen; R v Glenister [1980] 2 NSWLR 597 at 612; Lade v Mamarika [1986] NTSC 32; (1986) 83 FLR 312."

35 In the present case, the totality principle must be taken into account on the information which is presently before the Court. The effect of the learned sentencing Judge's sentence will be that from the time of that sentence being imposed the appellant will serve approximately 13 years. This is 2 years in addition to the 11 years imposed by the learned sentencing Judge.

36 This is a case which, in my view, requires a "last look" at the total imprisonment to be imposed upon the appellant. Once that last look is taken, it is apparent that the sentence imposed upon the appellant is excessive. Having regard to the period of time which he is required to serve in relation to breach of parole, and to the fact that the appellant had been imprisoned between 26 May 2000 and 28 January 2002, and then returned to custody for breach of parole on 30 January 2002, it is my view that an overall sentence of 10 years' imprisonment would be appropriate, having regard to the law as it stood when the learned sentencing Judge imposed sentence. In this respect I would reduce the sentence which was imposed on count 3 from 8 years to 7 years to account for the totality principle. Such a sentence would be a sentence to be served at the expiration of sentences otherwise being served by the appellant.

37 Having regard to the provisions of the Sentencing Legislation Amendment and Repeal Act 2003 and the Sentence Administration Administration Act 2003, it is, however, now necessary to restructure the sentences imposed by the learned sentencing Judge. They should, in my view, be as follows:

Counts 1 and 3 should be served cumulatively and count 2 concurrently. The result is that the sentence should now be one of 6 years 8 months, with eligibility for parole. The sentence is to be served cumulatively upon any sentences being served by the appellant for other offences.

38 I would grant leave to appeal, allow the appeal, set aside the sentence imposed by the learned sentencing Judge and substitute in lieu thereof a sentence of 6 years 8 months' imprisonment, with eligibility for parole, such sentence to be served cumulatively upon sentences being served by the appellant.

• Grounds of appeal
• The facts
• Sentencing comments
• Ground 1
• Ground 2
• Ground 3
• Conclusion