Court of Appeal (WA)|2009-08-31|Before: Miller JA, Lure JA, Buss JA

MOUNTAIN -v- THE STATE OF WESTERN AUSTRALIA [2009] WASCA 161 (31 August 2009)

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

CITATION : MOUNTAIN -v- THE STATE OF WESTERN AUSTRALIA [2009] WASCA 161

Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA

Criminal law - Appeal against sentence - Sexual offences - Digital penetration of vagina and anus - Attempted sexual penetration by attempting to introduce penis into the mouth - Aggregate sentence of 5 years 4 months' imprisonment - Whether sentence manifestly excessive - Whether lesser sentence ought to have been imposed - Whether lesser sentence ought to have been suspended - Whether sentencing judge erred in taking into account erroneous conclusion - One transaction rule - Totality principle

Leave to appeal refused on grounds 1, 2, 4, 5, 6 and 7

Burns v The Queen (1994) 71 A Crim R 450

Cavill v The State of Western Australia [2008] WASCA 108

de la Espriella-Velasco v The Queen [2006] WASCA 31; (2006) 31 WAR 291

Jarvis v The Queen (1993) 20 WAR 201

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

R v Cleak [2004] WASCA 72

Schriever v The State of Western Australia [2008] WASCA 133

The State of Western Australia v Akizuki [2008] WASCA 267

The State of Western Australia v Amoore [2008] WASCA 65; (2008) 182 A Crim R 165

Walgar v The State of Western Australia [2007] WASCA 241

Wimbridge v The Queen [2001] WASCA 248

1 McLURE JA: I would dismiss the appellant's application for leave to adduce new evidence and refuse leave to appeal on grounds 1, 2, 4, 5, 6 and 7 generally for the reasons given by Miller JA.

2 I would grant leave to appeal on ground 3 and allow the appeal. These are my reasons for doing so. The appellant was convicted after trial of four counts of sexual penetration and one count of attempted sexual penetration of the complainant. He was acquitted of one count. The offences were committed in the toilet of a nightclub at around 3.00 am. A sentence of 2 years and 8 months' imprisonment was imposed for each count of sexual penetration and 1 year and 4 months' imprisonment was imposed for the attempt count.

3 By ground 3, the appellant contends the sentencing judge erred in finding that the appellant attempted to lock the complainant and himself in the toilet. The background to that matter is as follows.

4 The appellant gave evidence at trial that the complainant initiated the sexual contact. His evidence was to the effect that the complainant initiated a bit of a clumsy embrace and put one hand around his waist and the other hand on his genitals under his jeans over his underwear. After he reciprocated the embrace and in the course of shuffling backwards they both lost their footing. According to the appellant, the ensuing sexual acts occurred with the complainant's consent.

5 The complainant gave evidence that she felt the appellant's hand on her 'bum' and the next thing that she remembered was that she was on the floor in the corner of the toilet.

6 The unchallenged factual findings of the sentencing judge are as follows:

Now, there was some exchange between you and the complainant, you say that she made a sexual advance to you and she says that you made an advance towards her and that she then blacked out or suffered from some loss of memory with her next memory being that she was on the floor with her back up against the wall, her pants were down and you were penetrating her vagina with your fingers wriggling them in and out. Now, that was count 1. The jury found you not guilty of that count.

The complainant told you that she didn't want this but nonetheless you removed your finger or fingers and then withdrew her trousers from her. Now, in terms of count 1, given the conflict between you and the complainant and the jury's finding, I can't find anything adverse against you on that finding. Now, having removed the young girl's trousers and underwear you then reinserted your fingers into her vagina.

Now, having removed the young girl's trousers and underwear, you then reinserted your fingers into her vagina. She told you that she didn't want this, and you said to her, 'Yes, you do. Just come' (AB 198).

7 The trial judge went on to give the facts of counts 3, 4, 5 and 6.

8 In his plea in mitigation, the appellant contended the sentencing judge should find on the balance of probabilities that the complainant initiated the sexual encounter but subsequently withdrew her consent resulting in the convictions on counts 2 - 6. It is against this background that the trial judge made the challenged finding. He said:

You saw her in that bathroom and yet you twiddled with, that's your word, with the door lock attempting to lock yourself and the young girl in that toilet (AB 198).

This was opportunistic offending, I have mentioned that you twiddled with the lock when you entered the toilet knowing full well that the complainant was in there.

Now, that, I think, perhaps set the scene for what was to occur. That doesn't say anything about the complainant approaching you, rather that is you seeking to twiddle with the lock and lock the door and lock the two of you in that toilet. You knew full well, when you did that, that she was in there (AB 201).

10 It is clear from the context that the sentencing judge was relying on his finding that the appellant attempted to lock himself and the complainant in the toilet to reject the appellant's evidence that the complainant initiated the sexual encounter. However, the implication arising from the sentencing judge's observations at AB 201 is that the appellant was seeking to lock the door because he was contemplating the possibility of sexual interaction with the complainant at that stage. I agree with Miller JA that there is no proper evidentiary foundation for a finding that the appellant was attempting to lock himself and the complainant in the toilet. Thus, the sentencing judge erred. Whether that is a material error enlivening this court's power to intervene and re-sentence the appellant depends on whether s 31(4)(a) of the Criminal Appeals Act 2004 (WA) is satisfied. By that section, this court may only allow an appeal if, in its opinion, a different sentence should have been imposed. Whether or not the individual sentences or total sentence imposed on the appellant are within a sound discretionary range is not relevant to that determination. That is relevant to whether the individual sentences are manifestly excessive and whether the total sentence infringes the totality principle.

The correct question is whether this court is satisfied that a different sentence should be imposed.

11 The answer to that question is connected with the basis of the appellant's acquittal on count 1. Having regard to the sentencing judge's statement of the facts relating to count 1, the acquittal is not explicable on the basis that the complainant was unable to give evidence to support count 1 because she had blacked out. On her evidence, the appellant initiated uninvited physical contact, she blacked out and when she regained consciousness, the conduct the subject of count 1 was continuing. The complainant's evidence, if accepted, was capable of establishing the offence. The conflicting evidence as to how sexual contact was initiated was relevant to the issue of consent on count 1. The jury must not have been satisfied beyond reasonable doubt that the complainant had not consented to the conduct the subject of count 1. In those circumstances, who approached whom prior to the conduct giving rise to count 1 is irrelevant to counts 2 - 6 as is the appellant's intention in fiddling with the lock. The appellant should have been sentenced on that basis.

12 By the verdicts of the jury the appellant did not act unlawfully in the initial sexual conduct the subject of count 1 but did so thereafter when it was unequivocally clear the complainant did not consent to the conduct. The error made by the sentencing judge tends to obscure the significance of the acquittal which impacts on the seriousness of the circumstances of the offending. I would reduce the sentence of 2 years and 8 months for each offence of sexual penetration to 2 years and 4 months. I would not reduce the sentence for the offence of attempted sexual penetration. An order for total concurrency would not reflect the total criminality of the offending. I would order that the sentences on counts 2 and 3 be served cumulatively with the balance of the offences being served concurrently.

13 For these reasons I would grant leave to appeal on ground 3, allow the appeal, set aside the sentences on counts 2, 3, 4 and 6 and in lieu thereof impose a sentence of 2 years and 4 months on those counts. The sentences on counts 2 and 3 are to be served cumulatively, the balance concurrently. Thus the total effective sentence is 4 years and 8 months.

14 BUSS JA: I have read the proposed draft reasons for judgment of each of McLure JA and Miller JA.

15 I agree with Miller JA, for the reasons he gives, that the appellant's application for leave to adduce new evidence should be dismissed and that leave to appeal on grounds 1, 2, 4, 5, 6 and 7 should be refused.

16 I agree with McLure JA, for the reasons she gives, that leave to appeal on ground 3 should be granted, the appeal allowed, the sentences imposed by the learned sentencing judge (Goetze DCJ) set aside and the appellant re-sentenced on the basis set out in her Honour's reasons.

17 MILLER JA: The appellant was tried on an indictment which contained six counts of sexual offences. Four counts alleged sexual penetration by penetration of the vagina with the fingers. One count alleged sexual penetration by penetration of the anus with the finger. One count alleged attempted sexual penetration by attempting to introduce the penis into the mouth. They were all offences against s 325 of the Criminal Code (WA), with the exception of the attempted sexual penetration, which was an offence against s 325 when read with s 552 of the Criminal Code.

18 The appellant was convicted after trial on three counts of sexual penetration by penetrating the vagina of the complainant with his fingers, one count of sexual penetration by penetrating the anus of the complainant with his finger and one count of attempted sexual penetration by attempting to introduce his penis into the mouth of the complainant. He was acquitted on the first count, which was one of the counts of sexual penetration by penetrating the vagina of the complainant with his fingers.

19 The sentencing judge sentenced the appellant to an aggregate term of 5 years 4 months' imprisonment. On each of counts 2, 4 and 6 on the indictment (digital penetration of the vagina), sentences of 2 years 8 months were imposed. On count 3 on the indictment (digital penetration of the anus), a sentence of 2 years 8 months was imposed. On count 5 on the indictment (attempted fellatio), a sentence of 1 year 4 months was imposed. The sentences on counts 2 and 3 were ordered to be served cumulatively. Each of the other sentences was ordered to be served concurrently.

20 The appellant seeks leave to appeal against sentence, the question of leave having been referred for hearing with the hearing of the appeal. There is also an application for leave to adduce fresh evidence. This application was also referred for hearing at the time of the hearing of the appeal.

21 It is convenient to deal first with this application. Although designated an application for leave to adduce fresh evidence, the application is, in fact, one to adduce new evidence. In the affidavit in support of the application this is made clear.

22 Under the provisions of s 40(1)(e) of the Criminal Appeals Act 2004 (WA), the court may admit 'any other evidence' for the purposes of dealing with an appeal. The principles upon which such evidence may be admitted are set out in de la Espriella-Velasco v The Queen [2006] WASCA 31; (2006) 31 WAR 291 per Pullin JA, at [150].

23 In the present case, the new evidence which it is sought to admit is evidence of the appellant's wife, Susan Madeleine Mountain. That evidence is in the form of an affidavit sworn 18 March 2009. The affidavit relates first to the toilet habits of the appellant and second to the financial plight in which the appellant's family has been placed in consequence of his imprisonment. In relation to the former, Mrs Mountain deposes to the fact that the appellant engaged in a somewhat unusual practice of exposing his genitals before urinating. In relation to the second, Mrs Mountain deposes to the fact that the family is in dire financial straits in consequence of the appellant's imprisonment.

24 No submissions were made to the court in relation to the application to adduce the new evidence. The respondent objected to the evidence on the basis that it was irrelevant. The court indicated that it would consider the application in the course of dealing with the appeal.

25 In my opinion, the application has no merit. The suggested new evidence was, in any event, the subject of testimony on the part of the appellant at his trial. He said that when he urinated, he exposed his genitals. He claimed in his defence that when he had completed urinating and had pulled his underwear back up, the complainant had initiated an embrace with him and had put her hand on his genitals. Although the jury acquitted the appellant on the first count on the indictment, it does not seem to me that the acquittal could have resulted from an acceptance of the appellant's testimony about the complainant handling his genitals, or even the jury having a reasonable doubt about the circumstances in which the initial sexual incident occurred. Rather, the acquittal seems to be explicable on the basis that the complainant was unable to give any evidence to support count 1 because she had blacked out after the appellant had put his hand on her bottom. She said that he did this and that the next thing she remembered was that she was on the floor in the corner of the toilet.

26 I will come to the detailed facts of the case in due course, but it is sufficient to say at this point that nothing appears to have turned on the question of how the appellant exposed his genitals when urinating. In sentencing the appellant, the sentencing judge concluded that the appellant had, in fact, lowered his underwear so that the whole of his testicles and penis were exposed for the purpose of urinating. He did say that this was done 'no doubt with the young girl a few feet away to your right-hand side'. No further reference was made to the issue during the course of sentencing and, in my opinion, the respondent is correct to object to the proposed new evidence on the basis that it is irrelevant.

27 The same conclusion must be reached in relation to the proposed new evidence about the financial plight of the appellant's family consequential upon his imprisonment. It is an unfortunate reality that the imprisonment of the breadwinner in a family will have financial consequences for the rest of the family. Often, these are dire consequences. In the present case, the sentencing judge noted that the appellant's family depended upon him, but concluded that exceptional circumstances would need to be shown before a non-custodial sentence could be justified by reason of that fact. The sentencing judge, thus, clearly understood and took into account the consequences to the appellant's family occasioned by his imprisonment.

28 In the circumstances of the case, I consider that the application to admit new evidence should be refused.

29 The offences occurred in the early hours of the morning of 19 October 2007, at the Exit Nightclub in Bunbury. Both the complainant and the appellant had earlier that night been at the Prince of Wales Hotel in Bunbury. They were not together. The complainant was with a group of her friends and, with them, she went to the Exit Nightclub some time after midnight. She had been drinking and described herself as 'feeling a little bit tipsy'. The Exit Nightclub operated on two levels. Only the bottom level was open. The complainant and her friends were at that level and they were alternatively sitting at a table consuming drinks, or up dancing on the dance floor.

30 The complainant went to the toilet, which was downstairs at the Exit Nightclub. It was a disabled toilet. The upstairs toilet was closed. The complainant gave evidence that she went to the toilet alone. She walked into the toilet and looked at the toilet bowl, which she described as 'disgusting'. She said that she did not want to use it because it was 'gross', and so she walked over to the mirror. She described the toilet area as having paper towel all over the floor and 'pee all over the seat'. The floor was wet and there was paper towel 'everywhere' on it.

31 The complainant said that the door to the toilet had a locking mechanism, but it did not lock. She said she was 'pretty sure' that it closed by itself. Whilst the complainant was attending to her appearance before the mirror, a man walked into the toilet. This was the appellant. The complainant did not know him. The complainant said that she thought she said to the man, 'That's fine, I'm finished' and that she was about to leave, but he stayed in there. He walked over to the toilet and went to the toilet. She was still standing at the mirror fixing her hair. When she looked in the mirror, she could see that the appellant was looking at her. She said that she felt his hand on her 'bum' and that the next thing she remembered was that she was on the floor in the corner of the toilet. She did not know how she had ended up in that position, but she said that she woke up and the applicant was crouching in between her legs and had his fingers inside her vagina. Her jeans and underwear were pulled down off one leg and were just on the end of the other leg. She did not know how her clothing had got into that position.

32 The complainant testified that the appellant had his fingers inside her vagina and that he was moving them. It took her a while to realise what was happening and, when she did, she tried to push the appellant away. She tried to pull up her pants and she said, 'No, I don't want this'. The complainant said that the appellant then pulled her jeans and underwear all the way off and then put his hand back in her and said, 'Yes, you do, yes, you want this. Just come, just fucking come'.

33 The complainant said that she then pushed at the appellant's chest with one hand and tried to pull her pants up with the other, but she was unsuccessful. She was saying, 'No, I don't want this', but he was responding, 'Yes, you do, you want this. Just come'.

34 The complainant said that on the second occasion when the appellant put his fingers into her vagina, he was moving them in and out. He then put a finger in her anus 'for a while' and then put his fingers back into her vagina. She described the finger which was inserted into her anus as going in 'all the way'. At this time, the complainant was lying on her back with her shoulders resting against the wall. She said that after the appellant had put his fingers back into her vagina, he continued moving them in and out, and she kept saying, 'No ... I don't want this'. She said that the appellant then leaned up, undid his pants and grabbed the back of her head and moved it towards his crotch. He said words to the effect of, 'Suck this', but the complainant closed her mouth and pushed her head back against his hands. She could see the appellant's penis and she said that it was flaccid, not erect. The complainant said that the appellant then let go of her head and she fell back and hit her head against the wall. He moved closer again and put his fingers back into her vagina. Again, he moved them in and out.

35 The complainant said that she then heard her friend, Evie Ekland, knocking at the door, asking if she was in there. She said that she thought Ms Ekland had tried to push the door open and that she recalled it swinging open, but recalled the appellant pushing it back shut. She said he just stood up, did up his pants and walked out.

36 The appellant gave evidence in his defence. He said that he had been at the Prince of Wales Hotel, where he had seen Ms Ekland. He had bought drinks for Ms Ekland and her friend. Some time after midnight, he had gone to the Exit Nightclub. He later decided to go home, but before doing so went to the toilet. When he got to the toilet, he opened the door. He 'just pushed against it' and it opened. He saw a young lady in the toilet. She was standing to his right at about the basin. He had no recollection of the woman saying that she was just about to leave. He went over to the toilet 'to have a wee'. He had noticed that the door lock was broken and he described that as 'par for the course' in that place.

37 The appellant said that he did not pay much attention to the young woman who was present. He said that he thought she was leaving. He described the condition of the floor as 'pretty gross'. He described how he went to the toilet and how he undid his pants, undid his belt, tucked the loose end into his right pocket, undid his fly and took out his penis and testicles, whereupon he began to urinate. He said he had his left arm leaning against the wall to prop himself up. He had just about concluded urinating, when he heard a voice over his right shoulder. He turned to look and saw the same young lady whom he had seen before. He said that she was sort of seated on the basin and that she said, 'Are you right there', or words to that effect. He said that he then flicked his underwear back over his 'bits and pieces' and turned away from the toilet bowl. At the same time, the young lady was almost face-to-face with him and she initiated 'a bit of a clumsy embrace' and 'put one hand around [his] waist and the other hand on [his] genitals under [his] jeans over [his] underwear'.

38 The appellant contended that he and the complainant had then lost their footing and that the young lady must have hit the basin. He hit the door, or the door hit him. He said that then he put his hand on her inner thigh towards her genitals and she moved her hip forward. He rubbed her genitals, undid her pants and put his hand inside her jeans and underwear. He admitted to putting his fingers inside her vagina, but contended that, at the time, she was holding his penis and testicles. He described the encounter as 'pretty clumsy'. He admitted that he had his finger inside the complainant's vagina. He admitted that his finger got very near, if not in, her anus. He said that the complainant's pants came right down at one stage. He admitted that at one stage she said, 'No' and started kicking at his hand. He said that he got to his knees and tried to get himself together. He got himself upright and somebody tried to come in. He pushed the door shut 'to preserve a little dignity' and, when the complainant told him to 'fuck off', he left.

39 The jury clearly rejected the appellant's account of events in the toilet. As I have already indicated, the appellant was acquitted on the first count on the indictment, which alleged an offence of penetration of the vagina with the fingers. In my opinion, this acquittal can be explained by reason of the fact that the complainant was unable to give any evidence about how the initial act of digital penetration of her vagina had occurred. She said that she 'woke up' and found the appellant crouched between her legs with his fingers inside her. In these circumstances, it is not surprising that a verdict of not guilty was returned in relation to count 1.

40 The jury was clearly satisfied beyond reasonable doubt that the account given by the complainant as to what followed was the truth of what had occurred. The verdicts of guilty in relation to counts 2 - 6 on the indictment reflect that fact.

41 The sentencing judge first accepted that the circumstances of the appellant's offending were opportunistic in that he went in to the toilet where the complainant was standing by a basin and mirror. He concluded that the appellant had 'twiddled with ... the door lock attempting to lock [himself] and the young girl in [the] toilet'. His Honour also concluded that the appellant went to the toilet bowl, where he lowered his underwear so that the whole of his testicles and penis were exposed for the purpose of urinating 'and no doubt with the young girl a few feet away to your right-hand side'.

42 As I have previously pointed out, there was no finding that the testicles and penis had deliberately been exposed so that the girl could see them.

43 The sentencing judge then recounted the circumstances of each count alleged on the indictment. His Honour concluded that the appellant's version that the complainant was a consenting party had been completely rejected by the jury, 'apart from count 1'. The sentencing judge made the following findings of fact in relation to the initial exchange between the complainant and the appellant:

Now, there was some exchange between you and the complainant, you say that she made a sexual advance to you and she says that you made an advance towards her and that she then blacked out or suffered from some loss of memory with her next memory being that she was on the floor with her back up against the wall, her pants were down and you were penetrating her vagina with your fingers wriggling them in and out. Now, that was count 1. The jury found you not guilty of that count.

The complainant told you that she didn't want this but nonetheless you removed your finger or fingers and then withdrew her trousers from her. Now, in terms of count 1, given the conflict between you and the complainant and the jury's finding, I can't find anything adverse against you on that finding.

44 I am unable to conclude from this anything more than a finding that after the appellant had advanced towards the complainant she was unable to say anything about what occurred until she 'came to', at which stage she was on the floor with her back against the wall, her pants down and the appellant had his fingers in her vagina. In those circumstances, a verdict of not guilty in relation to count 1 seems to me to have been inevitable. The complainant was unable to give any testimony about how on the first occasion the appellant came to insert his fingers into her vagina. She was not able to say that she had refused consent or that she had resisted in any way. In the absence of any evidence from her that she was not consenting, a vital ingredient of the offence of sexual penetration without consent was missing. A verdict of not guilty was therefore understandable. Such a verdict did not mean that the jury accepted that the complainant had consented or that the appellant had an honest and reasonable, but mistaken, belief that she had consented. The verdict seems to me to have been plainly based upon an absence of any evidence on the issue of consent.

45 The sentencing judge observed that there was a significant age difference between the two parties (who were 19 and 38 years of age). He also observed that the complainant and the appellant had not previously met, although the appellant had bought a drink for two of the complainant's friends earlier in the evening.

46 The sentencing judge recounted the circumstances in which the appellant left the nightclub and was confronted by the complainant's friends outside. He was there assaulted. The sentencing judge also noted that no complaint was made to the police by the appellant about that assault, and said, 'that is one way in which I can assess your own acceptance of your offending'. The sentencing judge also observed that the appellant had disposed of his clothing within a few days of the offence, concluding that the only reason to dispose of the clothing was to avoid any possible forensic advantage that the police may have obtained by seizure of that clothing.

47 Reference was made to the complainant's victim impact statement. Reference was also made to the fact that the appellant had no prior record. There was reference to a letter of apology which the appellant's counsel said would be sent to the complainant. The sentencing judge said that this appeared to be the first demonstration of remorse by the appellant. His Honour accepted that there was some indication of remorse, but observed that at the trial the appellant had contended that the complainant was the initiating party. His Honour then made reference again to the opportunistic nature of the appellant's offending.

48 In a passage which has been the subject of challenge by counsel for the appellant, the sentencing judge said:

I have mentioned that you twiddled with the lock when you entered the toilet knowing full well that the complainant was in there.

Now, that, I think, perhaps set the scene for what was to occur. That doesn't say anything about the complainant approaching you, rather that is you seeking to twiddle with the lock and lock the door and lock the two of you in that toilet. You knew full well, when you did that, that she was in there.

49 The sentencing judge made reference to a psychological report and to a number of character references. He concluded that the appellant had favourable antecedents, but observed that in sexual offence cases 'mitigating factors do not have as much weight as they might do in other cases'. His Honour concluded that personal and general deterrence required a sentence of imprisonment. He concluded that the seriousness of the offending was such that there could not be suspension of sentence.

50 The sentences to which I have referred were then imposed. Regard was had to the totality principle and the 'one transaction rule', and the sentencing judge concluded that counts 2 and 3 should be made cumulative and the other counts concurrent. The sentencing judge was of the view that an aggregate sentence of 5 years 4 months' imprisonment was proportionate to the totality of the appellant's criminal offending and could not be described as a crushing sentence.

51 There are seven grounds of appeal. They can be summarised as follows:

A suspended sentence should have been imposed.
The sentences imposed on each of counts 2 - 6 were manifestly excessive.
The sentencing judge erred in reaching the conclusion that the appellant attempted to lock the complainant and himself in the toilet, as a result of which the sentencing discretion miscarried.
The sentencing judge failed to correctly apply the one transaction rule, by not making all individual sentences concurrent.
The sentencing judge failed to correctly take into account the totality principle, with the result that the overall sentence was disproportionate to the appellant's criminality and was a crushing sentence.
The sentencing judge erred in finding that matters personal to the appellant carried little weight in the sentencing process.
The sentencing judge erred in failing to give notice to the appellant that he intended to sentence on the basis that the appellant's version, that the complainant was the initiating party, was not accepted.

52 This ground contends that a suspended sentence of imprisonment was open. It is argued that there were exceptional circumstances in the appellant's case which warranted suspension of the term of imprisonment. These exceptional circumstances were said to include 'the low risk of reoffending, the good antecedents of the appellant, good work history, the opportunistic aspect of the offences and his depressive illness at the time albeit not being a cause contributing to the offences occurring and his dependants'.

53 In the course of sentencing submissions, counsel for the appellant submitted that the circumstances of the appellant's family would be disadvantaged by the imprisonment of the appellant. He was described as 'the principal breadwinner to his wife of 10 years and child of eight'. References tendered on behalf of the appellant included one from the appellant's wife, in which she spoke of the appellant's inability to earn an income having a catastrophic effect on herself and her daughter. There was also reference to the appellant's financial support of his aged mother and support for a disabled brother.

54 In written submissions, counsel for the appellant accepted that exceptional circumstances would have to be shown before hardship to the appellant's family could justify suspension of the term of imprisonment which would otherwise be a term to be served immediately. It was accepted that Anderson J correctly stated the relevant principle in Burns v The Queen (1994) 71 A Crim R 450, at 455, as follows:

When the prison sentence is unexceptional on every other consideration, especially general deterrence and protection of society, there is much less room to be merciful out of regard for hardship to family and dependants in serious crimes involving a definite degree of premeditation and wilfulness: Wirth (1976) 14 SASR 291 especially at 296. Plainly, the personal circumstances of the applicant and her dependants does not, and could not, diminish the seriousness of the crime itself. It seems to me that where the crime is of a kind as regards which the predominant sentencing consideration is general deterrence, the circumstances of the dependants must be truly exceptional before compassion for them can have any worthwhile effect on sentence.

In oral submissions, counsel for the appellant appeared to retract this concession, but authority on the point is clear.

55 In this case, there was nothing exceptional which would suggest that a sentence of suspended imprisonment was called for by reason of hardship to the appellant's dependants.

56 Generally speaking, exceptional circumstances will need to be shown before a suspended term of imprisonment will be imposed in offences of a sexual nature: R v Cleak [2004] WASCA 72 per Wheeler JA, at [16].

57 The fact that the appellant had no prior record of convictions and generally good antecedents did not mean that exceptional circumstances were shown which would justify suspension of the term of imprisonment. In this context, personal circumstances do, in fact, hold less weight than might otherwise be the case: R v Cleak per Wheeler JA, at [16].

58 It follows, in my opinion, that there was nothing exceptional in either the appellant's personal circumstances or the hardship which may have been occasioned to his family which meant that a sentence of suspended imprisonment was the appropriate disposition of the matter. To the contrary, the case was one in which a finite term of imprisonment to be served immediately was inevitable. In my opinion, there is no substance in ground 1 of the grounds of appeal.

59 This ground contends that each of the sentences imposed on counts 2 - 6 inclusive was manifestly excessive. The particulars contend that the sentences imposed were excessive in that:

they were excessive when compared with other sentences imposed for similar offences;
the offence was opportunistic;
the sentencing judge failed to give due weight to the personal circumstances of the appellant;
the sentencing judge erred in taking a negative view of the appellant giving away his clothing some days after the event;
the sentencing judge erred in taking a negative view of the matter of undressing by the appellant prior to urinating;
the sentencing judge erred in concluding that there was no remorse shown by the appellant; and
the sentencing judge erred by placing too much weight on general deterrence and insufficient weight on the appellant's personal circumstances.

60 A number of these particulars cannot be substantiated. The sentencing judge accepted that the offence was opportunistic. He accepted that the sentence could not be suspended because the personal circumstances of the offender were not so exceptional as to justify suspension. He found (as he was entitled to do) that the appellant had disposed of his clothing within a few days of the incident. In the circumstances, it was open to conclude that the only reason for this seemed to be to avoid any forensic advantage that the police might otherwise obtain. The sentencing judge's conclusions about the manner in which the appellant exposed his genitals when urinating did not amount to a 'negative view' of him. They were stated as a fact. The sentencing judge did accept that there was some evidence of remorse. Finally, the importance of general deterrence was properly taken into account by the sentencing judge. The dominant sentencing considerations in cases such as the present are punishment and general and personal deterrence: Cleak per Wheeler JA, at [13], Wimbridge v The Queen [2001] WASCA 248 per Miller JA, at [17].

61 The written submissions of the appellant contain reference to a number of cases which are said to be comparable. A number of cases of digital penetration are referred to. They include Cavill v The State of Western Australia [2008] WASCA 108, a case in which there was a single incident of digital penetration. Clearly, this is not a comparable case. Other cases to which reference is made include offences of penile penetration. They are not comparable to the present case. None of these cases was the subject of oral submission.

62 In The State of Western Australia v Akizuki [2008] WASCA 267, Steytler P conducted an exhaustive review of recent cases involving sexual penetration of adults. His Honour prefaced that review by saying, at [3]:

The starting point, in any such discussion, is recognition of the fact that there is no tariff for sexual offences. The sentence to be imposed in each case must depend upon its individual circumstances, having regard for the maximum penalty set by the legislature. This is often said by the courts, but the proposition is one to which more than lip service must be paid. Nevertheless, it is important, when deciding upon the appropriate sentence in the individual circumstances of a case, to know what sentences are customarily imposed in cases involving similar offending. Otherwise, there is a risk that sentencing will become idiosyncratic and arbitrary.

63 Steytler P concluded that the circumstances of sexual offending and of sexual offenders are almost infinitely variable. Sentences imposed in one case can provide only very limited guidance in deciding what sentence should be imposed for similar offences in another case. In the course of Steytler P's conclusions, his Honour said, at [68]:

It should not be assumed that one form of sexual penetration is necessarily more, or less, serious than another. As Wheeler JA pointed out in C v The State of Western Australia [2006] WASCA 261 [35], there is no 'hierarchy of sexual penetration'. For example, although digital penetration will ordinarily be less serious than penile penetration, that is not inevitably so. It might, in particular circumstances, be no less serious or even more serious. The seriousness of every offence of unlawful sexual penetration must be determined by its own individual circumstances: C [35] (Wheeler JA); Cavill [266] - [267] (Miller JA).

An average starting point for a case of penile penetration of the vagina without consent, absent circumstances of aggravation, is in the order of 7 years' imprisonment under the former sentencing regime, or around 4 years and 8 months' imprisonment under the transitional regime. That starting point takes no account of any factors in mitigation.

65 The sentence of 4 years 8 months' imprisonment for penile penetration without circumstances of aggravation is only a very rough guide to the sentences appropriate in the present case. Sentences of 2 years 8 months' imprisonment in relation to each of the counts of penetration of the vagina with the fingers and the count of penetration of the anus with the finger were clearly within the range of sentences that could have been imposed. A sentence of 1 year 4 months' imprisonment for attempted fellatio was within the range of sentences that could have been imposed.

66 No comparable case referred to by the appellant has suggested that these sentences are manifestly excessive. In my opinion, there is no substance in ground 2.

67 This ground contends that the sentencing judge erred in fact by finding that the appellant attempted to lock the complainant and himself in the toilet. It is said that by reason of this error the sentencing discretion miscarried.

68 The complainant gave no evidence about the locking of the door. She said that the door shut, but did not lock. She was pretty sure that the door closed by itself. She knew that there was a lock, but said that it did not work.

69 The appellant said that when he got to the toilet door, he opened it by just pushing against it. He was cross-examined about the lock on the door and he said that he knew that the door had a lock and that it was broken. The relevant passage in his cross-examination is as follows:

How did you know the lock was broken?---I twiddled it when I've entered and looked around at the door.

So you were trying to lock this toilet with this girl in it, were you?---No, I was trying to lock myself in, checking if the lock was functional.

Right, but this girl was in the toilet?---She was - yeah, she was there.

So why were you trying to lock the door? Was that appropriate?---I wasn't - I wasn't trying to lock anyone but myself in.

She was in the room?---And I assumed she was leaving.

But you turned around to twiddle with the lock to lock the door?---I did turn around and look at the lock, yes.

Well, she wasn't leaving at that point, was she?---I wasn't paying her any attention.

Right, but you knew she was still in the room when you were twiddling the lock?---Yeah, I suppose so.

All right, so had that lock been there, undoubtedly that would have locked you both in the room, wouldn't it?---Well, I wouldn't have locked the door with both of us in there.

70 Although the cross-examiner sought to have the appellant agree with the proposition that he had endeavoured to lock the complainant and himself in the toilet, the appellant would not agree with that proposition.

71 It follows that the sentencing judge's conclusion that the appellant sought to lock the door and lock the complainant and himself in the toilet is unsupported by the evidence. The conclusion reached by the sentencing judge in this respect was therefore an error of fact. Because of this error, the court must resentence the appellant. However, in considering the question of resentencing, the question in this case is whether any other sentence should have been imposed.

72 In my opinion, the sentencing judge may have been in error about the circumstances of the attempt on the appellant's part to lock the door, but each of the sentences imposed on counts 2 - 6 was entirely within the range of sentences that could have been imposed. So was the aggregate sentence imposed.

73 Pursuant to the provisions of s 31(3) of the Criminal Appeals Act 2004, unless under subs (4) the Court of Appeal allows the appeal, it must dismiss the appeal. Pursuant to s 31(4) of the Criminal Appeals Act 2004, the Court of Appeal may only allow the appeal if, in its opinion, a different sentence should have been imposed. I do not consider that a different sentence should have been imposed on any one of counts 2 - 6 inclusive. Nor do I consider that any different aggregate sentence should have been imposed. I am therefore of the opinion that ground 3 of the grounds of appeal should be dismissed. I would grant leave to appeal in relation to the ground, but dismiss it.

74 This ground contends that the sentencing judge failed correctly to apply the one transaction rule and make all individual sentences concurrent.

75 The so-called 'one transaction rule' has been referred to many times in this court. It is only a 'working rule' and it is not a principle of law. The task of a sentencing judge in every case is to consider whether the total sentence imposed results in an appropriate measure of the total criminality of the offender's conduct. There is no automatic 'rule' that where offences arise out of substantially the same act, circumstance or series of occurrences, there will necessarily be concurrent sentences. The following passages fully articulate the rule.

76 In Walgar v The State of Western Australia [2007] WASCA 241, McLure JA, at [9], said:

The appellant contends that the three offences were part of one transaction and thus should have been ordered to be served concurrently. The scope of the one transaction rule and its relationship with the totality principle have been considered by this court and its predecessor on a number of occasions including in R v Faithfull [2004] WASCA 39; (2004) 142 A Crim R 554 [25] - [28]; Worthington v The State of Western Australia [2005] WASCA 72; (2005) 152 A Crim R 585 [20] - [24]; and Borbil v The State of Western Australia [2007] WASCA 24; (2007) 169 A Crim R 152 [84] - [87]. It is unnecessary to repeat the detail of what was said in those cases. In summary, multiple offences will be part of one transaction if the offender was truly engaged upon one multifaceted course of criminal conduct or if all the offences taken together constitute a single invasion of the same legally protected interest. If the offences are part of one transaction, it is a general rule (or what has been described as a good working rule) that any terms of imprisonment are made concurrent. However, a sentencing judge must in each case consider whether the application of the general rule would result in an appropriate measure of the total criminality involved in the conduct.

77 In The State of Western Australia v Amoore [2008] WASCA 65; (2008) 182 A Crim R 165, Steytler P, at [14], expressed the relevant principles in slightly different terms:

It is important, in this respect, to emphasise that the so-called 'one transaction' or 'continuing episode' rule (discussed by McLure JA in R v Faithfull [2004] WASCA 39; (2004) 142 A Crim R 554) is nothing more than a 'good working rule': Ruane v The Queen (1979) 1 A Crim R 284. The 'rule' is said to apply when a number of offences 'arise out of substantially the same act, circumstance or series of occurrences' (R v Brown (1982) 5 A Crim R 404 at 407), or in a case in which there is 'one multi-faceted course of criminal conduct' (Attorney-General (SA) v Tichy (1982) 30 SASR 84 at 93) or one in which they are considered to be 'manifestations of the one criminal enterprise, transaction or episode' (Pearce v The Queen (1998) 194 CLR 610 at 650; [1998] HCA 57; 103 A Crim R 372 at 404 (Kirby J)). Just as there is no absolute requirement that a sentencing judge should impose concurrent terms in a case involving multiple offences constituting one transaction or a continuing episode, it is not a principle of law that, if the offences are properly considered not to amount to one transaction or a continuing episode, there can be no concurrency. The task of a sentencing judge, in each case, is to consider whether the total sentence imposed results in an appropriate measure of the total criminality involved in the conduct: R v White [2002] WASCA 112; Postiglione v The Queen [1997] HCA 26; (1997) 189 CLR 295 at 307 to 308; [1997] HCA 26; 94 A Crim R 397 at 406 (McHugh J). There is, in any event, often no bright line between multiple offences forming part of one continuing episode and offences which cannot, or cannot entirely, be categorised in that way.

78 In the present case, it is apparent that the criminality of the appellant's conduct was such that a degree of cumulation of the sentences was called for. He was convicted of five offences, which included three separate digital penetrations of the vagina, a digital penetration of the anus and an attempted sexual penetration by introducing the penis into the mouth. The total criminality of his conduct was such that sentences of total concurrency could not possibly have reflected the gravity of what he did. It was his persistence in sexually penetrating the complainant's vagina and her anus and his attempt to place his penis into her mouth which necessitated, in my view, a degree of accumulation. The sentencing judge appreciated this and saw fit to accumulate the sentences in relation to counts 2 and 3. They were, respectively, offences of digital penetration of the vagina and digital penetration of the anus. In my opinion, it made good sense to accumulate those two sentences because they reflected offences which were different in nature and which were at the commencement of the episode of sexual assault. In my opinion, there is no substance in ground 4.

79 This ground contends that the sentencing judge erred by failing correctly to take into account the totality principle. The particulars contend that the overall sentence was disproportionate to the appellant's criminality and that the sentence was crushing.

80 The totality principle is another principle which is well established. In Postiglione v The Queen [1997] HCA 26; (1997) 189 CLR 295, McHugh J, at 307 - 308, expressed the principle in the following terms:

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 [See Mill v The Queen (1988) 166 CLR 59 at 63]. In Kelly v The Queen [(1992) [1992] FCA 7; 33 FCR 536 at 541] O'Loughlin J, sitting in the Full Court of the Federal Court of Australia, applied the following unreported remarks of King CJ in R v Rossi [Unreported; Court of Criminal Appeal of SA; 20 April 1988]:

'There is a principle of sentencing known as the principle of totality, which enables a court to mitigate what strict justice would otherwise indicate, where the total effect of the sentences merited by the individual crimes becomes so crushing as to call for the merciful intervention of the court by way of reducing the total effect.'

81 In Schriever v The State of Western Australia [2008] WASCA 133, I set out the accepted position in Western Australia, at [26] - [27]:

It is accepted in this jurisdiction that the totality principle comprises two limbs. The position has recently been summarised by McLure JA in Roffey v The State of Western Australia [2007] WASCA 246 [24] - [26] as follows:

[T]he totality principle ... 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).

When considering the application of the totality principle reference to other cases is useful. That is because they provide broad guidance on the question whether a total effective sentence will or will not offend the totality principle. However, it is important to bear in mind that there are limitations in the utility of such comparisons. The circumstances of the offending and of the offender might vary significantly: Roffey [27] (McLure JA).

82 In the earlier case of Jarvis v The Queen (1993) 20 WAR 201, Ipp J, at 206 - 207, expressed the principle in slightly different terms. His Honour stressed the importance of the aggregate sentence fairly and justly reflecting the total criminality of the offender's conduct:

[I]n taking 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: 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.

83 Applying these principles to the present case, it seems to me that the aggregate sentence of 5 years 4 months' imprisonment properly reflected the total criminality of the appellant's conduct. It could not be described as having a 'crushing effect' upon the appellant. A sentence of 5 years 4 months does not meet that description. It follows, in my opinion, that ground 5 has no substance.

84 This ground contends that the sentencing judge erred by finding that matters personal to the offender will often carry little weight in the sentencing process. It is said that, because the offence was one of a sexual nature and not a drug offence or sexual offence committed against a child, this observation was an error in law.

85 When the sentencing judge was speaking of mitigating circumstances not having as much weight as they might in other cases, the sentencing judge was dealing with the question of suspension of sentence. His Honour specifically said that the appellant's personal circumstances alone were not a factor which would lead to the conclusion that a non-custodial sentence should be imposed.

86 I am unable to conclude that the sentencing judge erred in law in reaching the conclusion that a sentence of suspended imprisonment was not open. To the extent that the sentencing judge considered that the personal circumstances of the appellant were of lesser weight than they might otherwise be, I consider that his Honour was using those words in the context of the issue of suspension of sentence. In my opinion, there is therefore no substance in ground 6.

87 This ground was not the subject of any oral submission. It contends that the sentencing judge erred by failing to give notice to the appellant that he intended to sentence him on the basis that his version of events, that the complainant was the initiating party, was not accepted.

88 This is a ground which is difficult to understand. It is therefore unsurprising that no oral submission was made in relation to it. The ground is misconceived, because the verdicts of the jury were clearly based upon a rejection of the appellant's testimony. The sentencing judge was required to sentence in accordance with those verdicts. It was not possible for his Honour to ignore the verdicts of the jury and to sentence on some other basis.

89 As I have already indicated, the appellant was acquitted on count 1 and the acquittal seems readily explained by the fact that the complainant was unable to give any testimony about the circumstances in which she was first penetrated. The fact that the appellant was acquitted on this ground did not mean that the sentencing judge was obliged to sentence the appellant on any basis other than the verdicts which were returned in relation to counts 2 - 6. I can see no substance in ground 7 of the grounds of appeal.

90 In my opinion, there is only one ground upon which leave to appeal should be granted. That is ground 3. However, for reasons which I have already given, I would dismiss ground 3 of the grounds of appeal.

91 In my opinion, leave to appeal should be refused in relation to each of grounds 1, 2, 4, 5, 6 and 7.

MOUNTAIN -v- THE STATE OF WESTERN AUSTRALIA [2009] WASCA 161 (31 August 2009)

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MOUNTAIN -v- THE STATE OF WESTERN AUSTRALIA [2009] WASCA 161 (31 August 2009)

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