Oldham v R [1999] WASCA 304

Application for leave to appeal against sentence dismissed

Australian Coal and Shale Employees' Federation v The Commonwealth [1953] HCA 25; (1953) 94 CLR 621

Dao v The Queen, unreported; CCA SCt of WA; Library No 990015; 22 January 1999

Garrett v The Queen [1999] WASCA 169

House v The King [1936] HCA 40; (1936) 55 CLR 499

Jackson v The Queen [1990] WAR 105

Kenneally v The Queen, unreported; CCA SCt of WA; Library No 980284; 27 May 1998

Kilner v The Queen [1999] WASCA 189

Krencej v The Queen [1999] WASCA 20

Miller v The Queen [1999] WASCA 66

Parfitt v The Queen, unreported; CCA SCt of WA; Library No 960140; 21 March 1996

R v Anderson (1997) 92 A Crim R 348

R v Jackway; ex parte Attorney General [1996] QCA 404; [1997] 2 Qd R 277

R v Mitchell (1994) 72 A Crim R 200

R v Richards [1999] WASCA 105

R v Ruane (1979) 1 A Crim R 284

R v Ward [1999] WASCA 157

R v Weng (1989) 38 A Crim R 337

Symonds v The Queen, unreported; CCA SCt of WA; Library No 980616; 28 October 1998

Tsagaris v The Queen, unreported; CCA SCt of WA; Library No 980721; 14 December 1998

Veen v The Queen [1979] HCA 7; (1979) 143 CLR 458

1 KENNEDY J: The applicant was presented in the Supreme Court on an indictment containing two counts of having, on or about 28 February 1996, at Dianella, sexually penetrated Ruby May Davenport, a person over the age of 60 years, without her consent, and one count of having, on or about the same day, at Dianella, wilfully murdered Ruby May Davenport. After a seven day trial, the applicant was convicted on the two counts of aggravated sexual penetration without consent. The jury returned a verdict of not guilty of wilful murder, but guilty of murder.

2 The learned sentencing Judge described the events leading up to the death of the deceased as nothing short of appalling. The sexual attack on her, he said, was particularly cowardly and degrading, especially having regard to her age and to her state of health. The circumstances of the commission of the first two offences of sexual penetration were rightly regarded by his Honour as being of the utmost seriousness and he considered that they called for condign punishment. In his view, the appropriate punishment for the two offences was a total of 16 years' imprisonment, being 8 years on each count, to be served cumulatively. The maximum sentence for the offence in each case was 20 years. Pursuant to s 88(4) of the Sentencing Act 1995, those sentences were ordered to be served concurrently with the mandatory sentence of life imprisonment for murder. He went on to indicate that the circumstances surrounding the death of the deceased were at the upper level of heinousness. Although the applicant, on the basis of the jury's verdict, had not intended to kill the deceased, he nevertheless had inflicted the severest of injuries to her neck, which had resulted in her death. Having caused her death, his Honour said, the applicant had demonstrated no remorse or compassion, but had embarked upon a path of deceit and concealment.

3 Having regard to the matters to which I have just referred, to the applicant's antecedents and to the need for community protection, the learned sentencing Judge ordered that the applicant serve 13 years before being eligible for release on parole, the permissible range being from 7 to 14 years - s 90(1) of the Sentencing Act. The sentences were backdated to 29 February 1996, almost two years before the time of sentencing, being the date on which the applicant had been taken into custody.

4 The applicant seeks leave to appeal against his sentences on the following grounds:

"1. That the Learned Sentencing Judge erred in law as to the order for cumulation in respect to the two counts of sexual penetration of a person over 60 years without her consent.

2. That in respect to the setting of the minimum term for the offence of murder, the Learned Sentencing Judge erred in failing to give any or, alternatively, sufficient weight to mitigating factors including:

(a) But for the Applicant's head injury he would not have developed a relationship with the deceased.

(b) The effect of the head injury on the Applicant's ability to make decisions in times of stress.

(c) The Applicant's inability to assess the situation without recourse to his friend.

(d) The impact of the frontal lobe deficit on the chain of events.

5 The deceased, who was aged 87, lived in the same block of flats as the applicant. She was frail and feeble, and dependent in large measure upon her family and close friends for support and assistance. She was, for the most part, confined to her flat, which was close to that of the applicant. In 1982 she had suffered a heart attack and in 1987 she sustained a stroke, the effects of which, most evidently a speech impediment, were still obvious at the time of the offences. The circumstances leading up to the commission of the offences, and in particular how the deceased came to be in the applicant's flat, where the offences were committed, were obscure. The most likely explanation is that the applicant took her there himself. Obviously, the jury must have rejected the applicant's implausible story that a personal relationship had developed between the two of them and that, on the night of her death, she had come to his flat barefooted and in her nightdress and encouraged him to have intercourse with her. When an examination was later made of her flat, the flywire screen was ajar, the front door was open and the light was switched on, as were the television set and a fan. The deceased's shoes and her slippers were found in her flat.

6 A post-mortem examination revealed extensive bruising of the deceased's body. There were severe injuries to her vagina, 50 per cent of the mucosa having been scraped away or damaged. There was bruising on her mouth consistent with blunt force, and an injury to the inside of her top lip. Some of the applicant's pubic hair was found in her mouth. The evidence of Dr Margolius, the forensic pathologist, was that the cause of death of the deceased was a neck injury and asphyxiation. The neck injury was a fracture, the result of hyperextension. Dr Margolius indicated that, apart from such injuries sustained in motor vehicle crashes or as a result of falling from a great height, this was the worst neck injury she had seen.

7 After the death of the deceased, the applicant removed the body from the bed, laid it on the ground and then washed the sheets upon which she had been lying. A friend of the deceased, Miss C M Kelly, at about this time called to see the deceased but could not find her in her flat. Searching for the deceased in the building, she heard a washing machine operating in the laundry and spoke to a person, who was obviously the applicant, who denied having seen the deceased. When she returned to the deceased's flat, the applicant followed her inside the flat. He left a short time later, after Miss Kelly had telephoned some of the deceased's relatives.

8 Some time later, the applicant persuaded a friend of his, Mr D J Hewton, to come to his flat to assist him in picking up a rubbish bin which was in his bedroom. He offered Mr Hewton a washing machine, which he said he was going to steal from an old lady who lived in the flats where he was living, an offer which was refused. He told Mr Hewton that he had been cleaning up and had knocked the bin over in his bedroom. He was unable to lift it by himself. He wanted Mr Hewton to put the bin on the back of his utility and to take it to the Dianella shopping area, there, it would seem, to dump it. Mr Hewton declined to use his utility for this purpose, but he drove the applicant, who had walked over to Mr Hewton's home, back to the applicant's flat in his Commodore sedan. On arrival in the flat, the applicant told Mr Hewton to wait in the lounge while he went into the bedroom. When Mr Hewton entered the bedroom, he saw a green "wheelie" rubbish bin lying on the ground. There was a rug hanging out of the bin. Mr Hewton could not see into the bin in which, it is quite apparent, the deceased's body had been placed by the applicant. Together, they lifted the bin into an upright position. Mr Hewton then left the premises. Subsequently, the applicant wheeled the bin containing the body to the front of another flat in the building, apparently in an attempt to implicate the owner of that flat as being the person who had killed the deceased.

9 The applicant, who is now aged 37, has an extensive criminal record, commencing during his childhood in Tasmania in 1978. That record includes numerous convictions for assaults, burglaries and stealing. The longest period of imprisonment imposed in respect of his past offences was a sentence of 18 months with eligibility for parole in respect of an aggravated burglary, assault and wounding. That sentence was imposed on 10 May 1990.

10 On 20 July 1994, the applicant was struck by a motor vehicle as he was crossing a road. According to his medical records, he spent 11 days in an intensive care unit before being transferred to the Rehabilitation Hospital in Shenton Park. He remained in this hospital for almost a month and he was then transferred to Tasmania, where he spent some additional time in hospital before being released to a refuge. He had sustained a severe closed head injury in the accident. There was evidence of damage to the left fronto parietal and left posterior parietal regions of the brain. The duration of post trauma amnesia was apparently three months, giving some indication of the severity of the head injury. The records disclose a pre-existing cerebral atrophy, suggesting a pre-morbid history of minor brain trauma and substance abuse. Prior to the present offences there had been indications that the applicant was at increased risk of impulsive and aggressive behaviour.

11 Dr Z Srna, a consultant psychiatrist, in his report dated 6 February 1998, indicated that the applicant was suffering from a major psychiatric disorder, organic personality disorder, with pronounced frontal lobe syndrome and pathological obsessive compulsive traits resulting from his head injury and complicated by neurological damage. He identified a pre-morbid existence of anti-social traits and dyslexia, but he found no evidence of functional psychiatric illness. In terms of dangerousness, it was the view of Dr Srna that the applicant presented as a moderate danger to the community, stemming from his impaired judgment and labile effect, with a propensity to act out in an aggressive manner while intoxicated with alcohol. He considered it impossible reliably to predict the applicant's re-offending in a violent manner, because there was no evidence of repetitive, violent behaviour after the head injury, apart from the present offences. His potential to re-offend in a sexual manner could not be sufficiently judged. He went on to add, however, that persons with frontal lobe damage have a propensity to behave in a socially unacceptable manner. His total denial of the offences and his impaired social judgment as a result of his injury and his memory impairment with a pre-morbid learning disorder were the major factors which would make him an unlikely candidate to respond to the sex offender treatment programme.

12 The learned sentencing Judge also had the benefit of a psychological report from Ms T Marley, which suggested that the applicant was a very dangerous person. His record was said to indicate longstanding deviant sexual behaviour, such as to increase the likelihood of his re-offending in the future. A medical report obtained from Dr K Fong before the present offences were committed, described the applicant's management in the following terms:

"I think that we are looking at a huge management problem for this young man in the future. His pre-morbid sociopathic personality is now being compounded by his residual physical, cognitive and behavioural impairments resulting from his severe head injury. In addition, there seem to be no avenues of social support readily available to him anywhere. The risk is that [he] will revert back to his previous lifestyle with potentially catastrophic consequences."

13 There was said to be clear evidence that the applicant's adjustment was somewhat tenuous prior to his severe closed head injury. This evidence included previous multiple offending, substance abuse and difficulty maintaining employment, relationships and stable accommodation. It was suggested that his behaviour had deteriorated even further since the head injury, supporting the assessment of there being an increased risk of his violent offending. His head injury is likely to have resulted in a reduced capacity in his judgment insight, and an increase in his propensity for impulsive behaviour. The prognosis for the applicant's future at the time of writing the psychological report seemed very poor. He was described as somewhat narcissistic, and because much of his self-esteem prior to the head injury was related to his strength and physical appearance, the resulting physical changes had been particularly devastating for him. The accident and the resultant injuries had also impacted upon the applicant's sexual identity. Prior to the accident he was said to have prided himself upon his ability to attract and seduce as many women as he desired. He now saw himself as unattractive and crippled. The likelihood was that this factor had a significant influence upon his current offending, in that the physical changes from the head injury and the resultant impact upon his narcissistic identity, and possible rejections of his sexual advances, may have led to an expression of frustration and rage in a sexually very violent manner.

14 Because the applicant was continuing vehemently to deny that he had sexually assaulted the deceased, and maintained that he had engaged in consenting sexual intercourse, Ms Marley regarded him as unsuitable for inclusion in the sexual offender treatment programme, a prerequisite for such treatment being an acknowledgment of guilt, and an acceptance of responsibility for the offending behaviour.

15 The applicant sought leave to adduce what was described as "fresh evidence" in the form of two psychiatric reports from Dr P W Skerritt, a psychiatrist. Those reports were prepared in relation to the applicant's claim for damages arising out of the accident on 20 July 1994. The proposed evidence was not "fresh" in any relevant sense and could unquestionably have been obtained prior to sentencing. In any event, the learned sentencing Judge had the advantage of very full reports from Ms Marley and from Dr Srna regarding the consequence of the motor vehicle accident, so that, from a sentencing point of view, Dr Skerritt's reports could not add significantly to the material already before his Honour. For these reasons, it did not appear to the members of this Court that, as a matter of fairness, the additional reports should be received and, accordingly, leave to adduce this evidence was refused.

16 The learned trial Judge sentenced the applicant prior to the delivery of judgment in Pearce v The Queen [1998] HCA 57; (1998) 72 ALJR 1416 Although the practice was by no means uniform, it was undoubtedly common, prior to this decision of the High Court, to have regard in this State to the total criminality of a prisoner's conduct in order to fix the effective head sentence and then to consider the individual sentences. In Pearce's case, however, at [43] to [48] McHugh, Hayne and Callinan JJ said:

"[43] The trial Judge sentenced the appellant to identical terms of imprisonment on counts 9 and 10 and made those sentences wholly concurrent. We can only conclude that the sentence on each of those counts contained a portion which was to punish the appellant for his inflicting grievous bodily harm on his victim. Prima facie, then, he was doubly punished for the one act.

[44] Does that matter if, as was the case here, an order was made that the sentences be served concurrently?

[45] To an offender, the only relevant question may be "how long", and that may suggest that a sentencing judge or appellate court should have regard only to the total effective sentence that is to be or has been imposed on the offender. Such an approach is likely to mask error. A judge sentencing an offender for more than one offence must fix an appropriate sentence for each offence and then consider questions of cumulation or concurrence, as well, of course, as questions of totality.

[46] Sentencing is not a process that leads to a single correct answer arrived at by some process admitting of mathematical precision. It is, then, all the more important that proper principle be applied throughout the process.

[47] Questions of cumulation and concurrence may well be affected by particular statutory rules. If, in fixing the appropriate sentence for each offence, proper principle is not applied, orders made for cumulation or concurrence will be made on an imperfect foundation.

[48] Further, the need to ensure proper sentencing on each count is reinforced when it is recalled that a failure to do so may give rise to artificial claims of disparity between co-offenders or otherwise distort general sentencing practices in relation to particular offences."

17 In this case, the applicant contends that the learned sentencing Judge erred in his approach to sentencing by first assessing the totality of offending as deserving of a particular sentence and then revealing the individual sentences for each count. His Honour, it was claimed, ought first to have fixed an appropriate sentence for each offence and then to have considered questions of cumulation and concurrence, as well as the question of totality. In this case, it was argued, the principle of totality dictated orders for only partial cumulation of the terms on the second charge in order that a just and appropriate total sentence be passed.

18 From a practical point of view, it might be observed, even if the applicant's contentions are correct, it is unlikely that it would be of any advantage to him. Having regard to the normal remission of one-third, the present sentence in respect of the aggravated sexual penetrations will expire prior to the minimum term of 13 years being exhausted.

19 The one transaction rule, discussed in Thomas, "Principles of Sentencing" 2nd ed 1979, at 53, suggests that, when all the offences taken together consistute a single invasion of the same legally protected interests, the sentences should be concurrent. But as is observed by Fox and Freiberg, "Sentencing : State and Federal Law in Victoria" 2nd ed 1999 at 721:

"Courts often fear that concurrent sentences are tantamount to an inducement to criminal conduct inasmuch as offenders may reason that, if caught, they are unlikely to suffer any material extension of their imprisonment by virtue of the further offences."

20 This issue was considered by Winneke P, Brooking and Callaway JJA in R v O'Rourke [1997] 1 VR 246. Their Honours said, at 252:

"In addition to the jury's satisfaction on the count of rape, their verdict indicates that they were satisfied that the respondent had made threats to kill the complainant, that he had indecently assaulted her on two occasions and that he had intentionally inflicted injury upon her. In the circumstances of this case we do not think it was open to the learned judge to simply write off the impact of these latter offences by saying that they were part of "one relatively short continuous episode". To do so was to undervalue the gravity of the respondent's conduct and the impact of that conduct upon his victim : cf R v Webb [1971] VicRp 16; [1971] VR 147. In this regard it is perhaps apposite to borrow the words of the Court of Criminal Appeal in this State in R v Richardson (unreported, 30 April 1992). In that case a complaint had been made about the cumulation of penalties where the accused had committed a series of sexual assaults upon a woman in her own home. The court declined to interfere with the orders for cumulation made by the trial Judge. The Chief Justice, in a decision agreed in by Crockett and Southwall JJ, said at 11:

'Complaint was made as to the directions touching upon cumulation, but in my view there is no substance in this. Each offence involved an additional violation of the woman and contributed to the aggregate of her debasement and humiliation. It was plainly proper ... for his Honour to recognise this in the directions he gave, as indeed he did.'

Similar comments were made by the Court of Criminal Appeal in R v Lakeland (unreported, 19 November 1993), another case which involved a series of sexual assaults upon a woman in her own home. The court said at 12:

'[W]e reject the submission ... that the seven offences should be regarded as merely part of the one criminal episode and therefore there should be no cumulation of sentences. The offences each supplied a significant, individual contribution to the trauma of the victim.'

The circumstances of this case, in our view, demanded a similar approach. Serious though the rape may have been, it was but one component of an aggregation of acts which together contributed to the debasement and humiliation of the complainant over a significant period of time during which the respondent was well aware of her resistance and distress. It was in those circumstances quite inappropriate for the learned sentencing judge to regard the threats to kill, both the indecent assaults and the ongoing infliction of injury as being so linked to the act of rape as to warrant the punishment imposed for those offences being made wholly concurrent with the penalty imposed for the rape."

"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 a 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."

22 I respectfully agree with the approach adopted by their Honours.

23 In my opinion, although, having regard to Pearce's case, it would have been appropriate for the learned sentencing Judge initially to have fixed individual sentences for the two offences of aggravated sexual penetration, it has not led to any concealment of error. His Honour had no evidence regarding the detailed circumstances surrounding each offence. To have differentiated between the sentences for each of the aggravated sexual penetrations could only have been the result of pure speculation as to their relative seriousness. The sentences which the learned sentencing Judge imposed were imposed in the exercise of his discretion. No doubt the sentencing might have been approached in a different manner, but it is likely that the same practical effect would have been achieved. I am quite satisfied that the sentences imposed by the learned sentencing Judge produced a result which was commensurate with the seriousness of those offences and, accordingly, I would decline to interfere with the exercise of his discretion.

24 So far as the second ground of appeal is concerned, in my opinion the minimum term set by his Honour was entirely appropriate. The murder of the deceased in the circumstances in which it occurred placed it close to the very top of the range. There is no suggestion that there might have been any overlap so that the applicant might have been sentenced twice for the same conduct. The suggestion that, but for the applicant's head injury, he would not have developed a relationship with the deceased, cannot possibly be sustained. The only evidence of any relationship came from the applicant himself as part of his contention that the sexual penetration was consensual. That was a contention which was clearly, and rightly, rejected by the jury. Any effect of the applicant's frontal lobe deficit on the chain of events is really not supported. The applicant's substantial criminal history preceded his accident by many years, although, as has been noted, it may be that his pre-morbid sociopathic personality was compounded to some extent by the residual physical cognitive and behavioural impairment resulting from his head injury. It may also be that his head injury has resulted in a somewhat reduced capacity in his judgment insight, and has increased his propensity for impulsive behaviour, but I am not persuaded that it did so to the extent that a reduction in his sentence was required. The claim that the applicant was unable to assess his situation without recourse to his friend is unsustainable. He was not seeking to have his friend assess the situation, he was seeking to have his friend enable him to remove the body from his flat in a bin, without disclosing the fact that the deceased's body was in the bin.

25 The applicant represents a danger to society, although it is to be recognised that this consideration cannot lead to the imposition of a more severe penalty than would have been imposed if he had not been suffering from a mental abnormality - see generally Veen v The Queen (No 2) [1988] HCA 14; (1998) 164 CLR 465, per Mason CJ, Brennan, Dawson and Toohey JJ at 476 - 478. That did not occur in the present case.

26 The learned sentencing Judge had the great advantage of presiding at the trial of the applicant and I am not persuaded that he fell into any error in the sentencing process. Whilst I would grant leave to appeal, I would dismiss the appeal.

27 WALLWORK J: I agree with the reasons for judgment of Kennedy and Murray JJ. There is nothing I wish to add.

28 MURRAY J: I am grateful that in this case I have been able to read in draft the reasons published by Kennedy J. I agree with them and with the orders proposed by his Honour. I have nothing to add to those reasons in respect of the second ground of appeal, that concerned with the setting of the minimum term as part of the imposition of the sentence of life imprisonment for the offence of murder.

29 I do, however, wish to add one or two further observations in respect of the first ground of appeal which complains about the cumulation of the sentences of 8 years imprisonment for each of the two offences of aggravated sexual assault. I respectfully agree with Kennedy J that no problem of the kind addressed by the High Court in Pearce v R (1998) 194 CLR 610 arose in this case.

30 I expressed my views about the practice of imposing sentences by first arriving at a global term of imprisonment proportionate to the totality of the offending and then dividing that up into discrete sentences in "W" (A Child) v The Queen [1999] WASCA 235 which was delivered on 5 November 1999. I need not repeat those views here, but it is important to note that the practice under discussion, while in my view potentially dangerous and contrary to principle, will not where it is employed inevitably lead to the conclusion that a miscarriage of the exercise of sentencing discretion has occurred. That would only occur where the practice is seen to result in a miscarriage of justice in relation to the sentences imposed, their length and their cumulation: see my reasons at [50].

31 Of course, it will very often be the case that on appeal the attack will be based on the application of the totality principle and the proposition that, applying that principle as it was explained in Jarvis v R (1993) 20 WAR 201, it can be seen that the total effect of what has been done by way of sentence is excessive. In this case, there is more than a suggestion of that in the applicant's argument, but ground 1 focuses squarely upon the proposition that whilst no complaint is made of the length of the terms individually imposed for the two offences of aggravated sexual assault, the order for their cumulation has resulted in an aggregate term which was simply too great having regard to the criminality involved. Put in that way, the proposition is in truth that these offences were properly regarded as being separate and distinct from each other and as meriting cumularive sentences, were it not for the total effect of the cumulative imposition of the terms, individually of an appropriate length. The authorities discussed by Kennedy J indeed, in a case like this, support that view.

32 In Ruane v R (1979) 1 A Crim R 284, this Court spoke of concurrent sentences being appropriate in respect of offences committed close together in time where it could be seen that they were part of "the same transaction" or arose out of "the same situation" (per Wallace J at 286), where they were truly part of "the same criminal enterprise" or where they arose from "one and the same act" (per Jones J at 288-9), or where they were "part of one incident" (per Brinsden J at 289).

33 But the court then added the caution that it would look closely at the question whether that was a correct description of the offences committed and, if not, cumulative sentences would ordinarily be imposed, subject to the totality principle, in respect of offences which were separate and distinct offences, although related to each other, which merited separate punishment. If the application of the totality principle required departure from that preferred position, it would preferably be by way of the abandonment, in whole or in part, of the cumulation of the terms imposed rather than by the reduction of individual sentences below the length which would express the appropriate relationship between each individual offence and the punishment imposed for it. In my respectful opinion that is the approach properly to be taken in such cases as the present.

34 Having regard to the position of the victim and the manner of the commission of the offences of aggravated sexual assault to which Kennedy J has referred, it is abundantly clear that they are properly to be regarded as separate and quite dreadful attacks upon the elderly lady who was their subject. I think the order of the commission of the offences is not known, but it is clear that one such offence involved the penile penetration of her mouth and the other an extremely forceful and quite obviously very painful vaginal penetration. In my opinion none of the matters so carefully and responsibly advanced by the applicant's counsel carry any persuasive force to mitigate punishment to any substantial degree.

35 These were separate offences and transactions, although close in time. They were individually of the utmost gravity. They merited separate punishment and, like Kennedy J, I am quite unpersuaded that the total effect of the resulting aggregate term was in any way disproportionate to the total criminality involved so as to require the intervention of this Court.