Effective head sentence increased to 7 years' imprisonment

Coulter v The Queen, unreported; CCA SCt of WA; Library No 960507; 4 September 1996

Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665

MacFarlane v The Queen, unreported; CCA SCt of WA; Library No 940507; 16 September 1994

Nelson v The Queen, unreported; CCA SCt of WA; Library No 950376; 1 June 1995

R v Allpass (1993) 72 A Crim R 561

R v Blurton, unreported; CCA SCt of WA; Library No 960425; 7 August 1996

R v Ginder (1987) 23 A Crim R 1

R v Grein [1989] WAR 178

R v Jensen (1991) 52 A Crim R 279

R v Peterson [1984] WAR 329

Wilson v The Queen, unreported; CCA SCt of WA; Library No 950104; 10 March 1995

Veen v The Queen (No 2) [1988] HCA 14; (1988) 164 CLR 465

1 KENNEDY J: I have had the benefit of reading in draft the reasons to be published by Wheeler J. I am in agreement with those reasons and with the orders proposed by her Honour.

2 WALLWORK J: I agree with the reasons for judgment of Wheeler J and to the orders proposed by her Honour.

3 WHEELER J: In January this year, the respondent stood trial on an indictment containing four counts, all alleging acts committed on the same day in April 1998.

4 Count 1, of which he was acquitted, alleged an indecent assault by touching the complainant's breasts; count 2, of which he was convicted, alleged sexual penetration of the complainant by fellatio; count 3, of which he was convicted, alleged an unlawful and indecent assault on the complainant by kissing her breast; and count 4 alleged sexual penetration of the complainant by penetrating her vagina with his penis. He was convicted of this last offence but acquitted of a circumstance of aggravation, which alleged that he immediately afterwards threatened to kill the complainant.

5 The Crown appeals against the sentences he received for these matters, imposed on 3 February 2000, they being: 2 years in respect of count 2; 2 years concurrent in respect of count 3; and 4 years concurrent in respect of count 4, they being cumulative upon any sentence which the respondent was then serving.

6 The respondent was at that time serving sentences in respect of earlier offences. I will return later to the detail of those periods of imprisonment. It is convenient first to consider the details of these offences.

7 On the night in question, the respondent had stolen a dozen bottles of spirits. He took the spirits to the home of the complainant, her de facto husband and her de facto husband's young cousin. He was at the time in company with an acquaintance of the complainant's de facto husband, and this acquaintanceship appears to have been the initial reason for the visit. Those present drank some of the spirits and smoked some cannabis. Late in the night, the respondent and the two other young men went out and broke into a service station. When they returned to the house, they were apparently accompanied by another acquaintance of the respondent's.

8 The recollections of those present were described by her Honour as "patchy" but she commented that one matter about which everyone in the house was agreed was that at one stage in the evening the respondent commenced to beat one of the males quite badly, hitting him a number of times with a clenched fist and also with a pole, which was apparently made of metal.

9 The complainant said that she was very scared while this was going on and did not say anything in case the respondent turned around and started on her. Her Honour commented that, "I think that that atmosphere of fear got across to the jury" and that it was plain that those present were frightened of the respondent.

10 At about 4.00 or 5.00 am the respondent and the complainant ended up outside the house in a dark and secluded area where the complainant said she was ordered by the respondent to take her pants (leggings) off. She said she did so because she was terrified. She said she also complied with the respondent's request that she tell him she loved him because she was scared that if she did not comply he would beat her up.

11 During penetration of her mouth by his penis, he had a handful of her hair and was moving her head up and down so that she said it felt as though her hair was being "ripped out of" her head. He later had his hand on her head or neck while he was on top of her penetrating her with his penis. She said that that penetration was painful.

12 The medical practitioner who gave evidence stated that her findings in relation to the genital area were consistent with recent forceful penetration, there being a number of fine linear abrasions. She said that the complainant had pain with neck movement and tenderness to the right sternomastoid muscle, which were consistent with a soft tissue injury to the neck and that the complainant had injuries to both knees, which were consistent with blunt pressure and friction or dragging, as could occur with kneeling on a roughened surface. The complainant said that she was crying when the respondent penetrated her vagina with his penis. It is clear that she suffered a very painful, frightening and humiliating experience. The victim impact statement, her Honour observed, suggested that the experience had been "quite devastating" for the complainant.

13 While the respondent was a relatively young offender, having been born in 1974, he had a significant criminal record. It was not as lengthy as some others to have come before the court, but it involved significant offences of both dishonesty and of violence. It appears that he showed no remorse for these offences. The pre-sentence report before her Honour referred to the respondent as being motivated in his aggressive encounters and offending behaviour by a "power trip and being the leader of the pack". These offences plainly display that kind of motivation.

14 When the respondent was younger, his family became embroiled in what appears to have been quite a violent feud with another family, and it is noted that his parents separated when he was a young child, but there does not appear to have been anything else of particular significance in his background. He acknowledged to the author of the pre-sentence report that he had had significant problems with the use of alcohol and other drugs. The most positive remarks in that report can best be described as tepid; it was said that he had recently shown "some insight" into the relationship between his drug use and his offending behaviour, that he "might" derive assistance from substance abuse programs in the future, and that he "plans" to remain drug free when returned to the community. It did not appear that he had taken any positive steps to deal with any of his substance abuse problems. It was suggested in the reports available to her Honour that the respondent presented with a "medium high" risk of re-offending in a comparable manner and that, despite his denial of responsibility for these offences, he was suitable to engage in a sex offender treatment program.

15 Her Honour was essentially presented with a number of serious offences committed by the respondent on the same evening, and with virtually nothing in the way of mitigating circumstances. As argued before us, the appeal was concerned principally with whether the sentences in respect of counts 2 and 4 were so low as to manifest error, and with the application of the totality principle.

16 The maximum penalty prescribed for the offence of sexual penetration without consent in the absence of circumstances of aggravation is 14 years' imprisonment. While there is no "tariff" for offences of sexual penetration without consent, and the cases show that sentences imposed vary substantially, the general range of sentences commonly imposed for a single act of penetration of the vagina with the penis where the victim is over the age of 16, remains of the order of about 6 years: R v Podirsky (1989) 43 A Crim R 404 at 411 per Malcolm CJ, Nelson v The Queen, unreported; CCA SCt of WA; Library No 950376; 1 June 1995 at 9 per Malcolm CJ. A sentence of this kind is generally at the lower end of the scale for offences of this type, and is often the sentence which is imposed after taking into account mitigating factors: Brockman v The Queen, unreported; CCA SCt of WA; Library No 970044; 4 February 1997 at 8 per Malcolm CJ. I have noted in R v Clark [2000] WASCA 229 factors which will be relevant to an evaluation of the seriousness of the offence (at [12]), and it may be that an evaluation of these factors leads to the view that the appropriate sentence in any case is well in excess of 6 years, while on other and generally less common occasions, it may be that the sentence called for will be less (perhaps even substantially less).

17 I would emphasise that these are sentences imposed for a single act of penetration and that the commission of other offences at or about the same time, whether or not they may be regarded ultimately as part of "one transaction", may well have the effect of significantly increasing the seriousness of the conduct so as to call for a sentence in excess of that commonly imposed.

18 In the present case, there were two acts of penetration with the respondent's penis, one of the complainant's mouth and the other of her vagina. Questions of the way in which the appropriate sentences in respect of each of those acts come to be fixed arise. It is necessary for the court to "fix an appropriate sentence for each offence" and then consider questions of cumulation or concurrence as well as totality (Pearce v The Queen (1998) 194 CLR 610 at 624 [45]). There are difficulties with adopting that approach in cases such as the present. Each act is clearly distinct and in the present case each was accompanied with its own degree of force which caused its own separate physical injury. However, other matters which make each of the acts more serious form part of the common background. In particular, there is the atmosphere of fear, to which her Honour referred, and the gratuitous humiliation of the complainant by requiring her to say that she loved the respondent. The fact that each was a separate act, each caused separate injury, and each no doubt played a cumulative part in the impact upon the complainant, would in my view call for the sentences to be cumulative upon each other. However, there is a risk that to approach each act separately against the background of the other events to which I have referred, may lead to excessive severity in the final result because of a form of "double counting" of those background circumstances.

19 I would approach it in the following way. Viewed separately against the background of the circumstances to which I have referred and against the absence of mitigating circumstances, appropriate sentences would, in my view, have been of the order of 7 years in respect of the act of penetration of the complainant's vagina and 5 years in respect of the fellatio. However, because in my view a sentence of 9 years would appropriately reflect the "totality" of the respondent's offending on the evening in question, in my view the sentence would in the end best have been structured (leaving aside for the moment the other terms the respondent was serving) by imposing 7 years in respect of count 4 and reducing the sentence in respect of count 2 to one of 2 years cumulative upon count 4, with the 2 years which her Honour imposed in respect of count 3 concurrent with count 4.

20 Against this background, the sentence imposed by her Honour would appear on its face to have been inadequate. However, as her Honour noted, it was necessary also to consider the totality principle in sentencing the respondent, having regard to the unrelated sentences which he was serving. I turn now to the offences in respect of which he was already serving terms of imprisonment.

21 In that respect, the information placed before us appears to have been clearer and more comprehensive than that available to her Honour. In May 1998, when taken into custody for these offences, the respondent commenced to serve breach of parole days totalling 934 days in respect of the following sentences:

• Supreme Court 2 April 1993, robbery whilst armed and in company. Sentenced to 4 years' imprisonment.

• District Court 22 January 1996, assault occasioning bodily harm. Sentenced to 2 years and 10 months' imprisonment.

• District Court 22 January 1996, two counts of burglary. Sentenced to 2 years and 10 months' imprisonment concurrent each charge.

• District Court 22 January 1996, deprivation of liberty. Sentenced to 2 years and 10 months' imprisonment concurrent.

22 On 9 March 1999 he was sentenced in the District Court on one count of aggravated burglary in respect of which he received a sentence of 3 years' imprisonment cumulative upon the sentences he was then serving.

23 On 10 December 1999 a conviction under the Prisons Act saw him sentenced to 28 days, loss of remission.

24 In relation to the burglary of the Shell Service Station, committed on the same evening as these sexual offences, he was in June 1999 sentenced to 6 months' imprisonment concurrent with other sentences he was then serving. We were informed at the hearing of this appeal that his earliest eligibility date at the time of sentence for these offences was 5 April 2000, whilst his earliest eligibility for release date was 12 January 2002, being the date by which he would have served his outstanding breach of parole days. After considerable correspondence between my associate, the Crown prosecutor and the Sentence Information Unit, the relevant dates were finally confirmed as an earliest eligibility date of 5 April 2000 and an eligibility for release date of 12 January 2003.

25 I would note that it is not unusual for a number of different dates of earliest eligibility and earliest release to be supplied to the court in respect of the same offences and the same offender. Whatever the reasons for it, such discrepancies make the task of sentencing one which it is difficult to perform with any confidence. It is my view that such information should be provided not merely by way of a conclusion as at present, but by reference to the relevant dates and by reference to calculations performed in accordance with the Sentencing Act; such a course would not eliminate these problems, but may reduce them.

26 In considering the totality principle, regard must be had to the eligible release date, ie, 12 January 2003, so that in assessing the totality of the overall term of imprisonment in respect of the offences the subject of this appeal, regard must be had to the 3 year sentence for aggravated burglary as well as the outstanding parole days: Brockman v The Queen, per Malcolm CJ at 9, McLean v The Queen [1999] WASCA 209 per Ipp J at par 19. In broad terms, it could fairly be said that the respondent would, since taken into custody in respect of these offences, be serving a period of 4-1/2 years, made up as I have described, in addition to any sentence to which he was liable to be imprisoned in respect of these offences.

27 The way in which her Honour dealt with these matters of totality is as follows:

"Now, I'm not sure how it has been worked out but I am told that at present your earliest release date is 5 April 2000 by which time you will have been in custody for the best part of 2 years, and it's necessary that the totality of the sentences be taken into account. So in relation to these matters, on count 2 you are sentenced to 2 years, on count 3 you are sentenced to 2 years and that is concurrent, on count 4 you are sentenced to 4 years but this is concurrent with both counts 2 and 3 but they are cumulative on any sentence you are now serving and in each case you are eligible for parole".

28 It is pointed out on behalf of the respondent that the first error that her Honour made was adverse to the respondent, in that she did not have regard to the earliest date for release (now established as January 2003). That is clearly so, and appears to me to have stemmed from what seems on the transcript to have been the lack of clarity with which the effect of the previous sentences was explained to her Honour. Nevertheless, it appears to me that the overall effect of what her Honour said and of the sentence she imposed reveals an error which is significantly in favour of the respondent, and an error of the kind which requires remedy, notwithstanding the principles which apply in respect of a Crown appeal against sentence.

29 If one assumes, as it seems to me one must, that her Honour was having regard to sentences of the order of those ordinarily imposed in respect of sexual assault, then the greatest possible allowance which could have been made for the effect of sentences the respondent was already serving would have been an allowance of 2 years, that being the period for which her Honour thought that he would be in custody in relation to those earlier offences. Added to a sentence of 4 years, which her Honour imposed, this suggests that her Honour's starting point was 6 years' imprisonment. In my view, having regard to the circumstances of the offence and of the respondent, to which I have referred, the imposition of what may be described as a "standard" sentence for a single act of sexual penetration of the vagina with the penis would, having regard to the several offences of which the respondent was convicted, appear to reveal error. However, it appears to me that error is also revealed if one considers that it appears that her Honour applied the totality principle by adjusting the sentence she was imposing so as to allow for the entirety of the 2 years' imprisonment which she thought the respondent had to serve in respect of other offences.

30 The "totality" principle may sometimes require, in effect, credit to be given for the entirety of a sentence in respect of a particular offence, but it will not always do so. Indeed, the principle that a sentence in respect of an offence should be commensurate with the seriousness of the offence suggests that it will not often be appropriate to give credit of this kind.

31 The principles collectively referred to under the heading of the "totality" principle were discussed in some detail in the case of Jarvis v The Queen (1998) 20 WAR 201. In sentencing in circumstances of this kind, it is necessary to bear in mind that the burden of a sentence of imprisonment increases exponentially as the length increases. For that reason, a sentence imposed in respect of a later offence, where the offender is already in custody for other reasons, may when added to the sentences imposed in respect of those earlier offences, have a "crushing" effect which it would not have if considered on its own. The question of what is a "crushing" sentence is one which cannot be considered in isolation, however. Particularly when it relates to serious offending over a period of time, or to a particularly serious type of offence, just punishment and community protection may require what would otherwise be seen as a "crushing" sentence.

32 Adopting what I consider to be the appropriate principle in cases such as the present, involves asking the question whether, having regard to the circumstances of the respondent and to the circumstances of the offences in respect of which it was then necessary to sentence him, a sentence of 9 years would be unduly severe if it came to be served in addition to a period of approximately 4-1/2 years, which he was then already serving. While there may be room for some difference of opinion, it would be my view that in respect of a relatively young offender such as the respondent, such a sentence would be considered unduly severe. It is therefore necessary to make some adjustment. However, the appropriate adjustment is not to give credit for the entire 4-1/2 years. Rather, in my view, the appropriate course would be to make an allowance of approximately 2 years**,** which allowance I would make by reducing the sentence in respect of count 4. This allowance also takes account of the fact that the present appeal is a Crown appeal.

33 I would therefore allow the appeal and substitute sentences as follows:

Count 4 - 5 years to be cumulative upon count 2; served cumulatively upon any term the respondent is now serving.

34 The "total" term of imprisonment that the respondent would then face commencing from May 1998 when taken into custody would have been approximately 11-1/2 years' imprisonment. In my view, a sentence of that kind appropriately reflects the totality of the criminal behaviour for which her Honour came to sentence the respondent, and the totality of the criminal behaviour in respect of which he was then serving sentences, but reflects also the additional severity which would be caused by the fact that the respondent would only come to serve the term in respect of these offences once he had completed his terms of imprisonment in respect of the earlier offences.