Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA

Criminal law - Sentencing - Principles involved in appeal against sentence - Whether sentence was manifestly excessive - Whether sentence failed to reflect what was one course of conduct flowing from offence of aggravated burglary - One transaction rule - No common element to offences - Totality principle - Total aggregate sentence not manifestly excessive - Whether sufficient consideration given to plea of guilty - No early guilty plea - Strength of case against accused is significant

Sentencing Act 1995 (WA)

Dodge (1988) 34 A Crim R 325

Hooper v The Queen [2003] WASCA 179; (2003) 27 WAR 264

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

Markarian v The Queen [2005] HCA 25; (2005) 215 ALR 213

Pieri v The Queen [2001] WASCA 357

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

R v White [2002] WASCA 112

Siganto v The Queen [1998] HCA 74; (1998) 194 CLR 656

Herbert v The Queen [2003] WASCA 61; (2003) 27 WAR 330

Jarvis v The Queen (1993) 20 WAR 201

Mill v The Queen (1988) 166 CLR 59

Musarri v The Queen, unreported; CCA SCt of WA; Library No 980662; 17 November 1998

Worthington v The State of Western Australia [2005] WASCA 72

1 ROBERTS-SMITH JA: I agree with the conclusion reached by Le Miere AJA and the reasons his Honour gives for it, but have some additional remarks in respect of the effect of the plea of guilty.

2 The various ways in which a plea of guilty may have mitigatory effect were explained by the High Court in Cameron v The Queen (2002) 209 CLR 339. In their joint judgment, Gaudron, Gummow and Callinan JJ quoted (at [11]) a passage from the judgment of Gleeson CJ, Gummow, Hayne and Callinan JJ in Siganto v The Queen [1998] HCA 74; (1998) 194 CLR 656 at [22], that a plea of guilty is ordinarily taken to have mitigatory effect first because it is usually evidence of remorse and secondly, on the pragmatic ground that the community is spared the expense of a contested trial. However, in Cameron their Honours at once noted that remorse is not necessarily the only subjective matter revealed by a plea of guilty: it may also indicate acceptance of responsibility and a willingness to facilitate the course of justice. Given the need to maintain a real distinction between allowing a reduction for a plea of guilty on the one hand and not penalising an offender for not pleading guilty, their Honours said (ibid [14]) the rationale for the former rule requires (so far as it depends on factors other than remorse and acceptance of responsibility) that it be expressed in terms of willingness to facilitate the course of justice and not that it has saved the community the cost of a contested hearing.

3 Kirby J held (at [65]) that the true foundation for a sentence discount for a plea of guilty is the public interest. That includes not only genuine remorse, where it exists, but also such factors as the cost and inconvenience of a trial, the freeing-up of court lists and the avoidance of having to put victims and witnesses through the traumatic experience of a trial, amongst others. So regarded, genuine remorse is not a pre-condition for the mitigatory effect of a plea of guilty (and see also Hooper v The Queen [2003] WASCA 179; (2003) 27 WAR 264, [34], [96] - [98]).

4 In the present case, the applicant does not contend the Judge failed to take his pleas of guilty into account at all, but rather that his Honour "failed to give sufficient consideration" to those pleas and the applicant's stated desire not to put the victim through the trauma of a trial. As Le Miere AJA points out, the Judge, in specifically indicating that he was taking into account the applicant's plea of guilty, noted it was made at a late stage and in a situation in which the prosecution case was overwhelming. His Honour did not quantify the discount he was giving for the plea - but he was not required to (Markarian v The Queen (2005) 215 ALR 213; [2005] HCA 25). His Honour's remarks have to be read in

light of his earlier reference to the facts that the offence occurred on 10 May 2002 but the applicant was not identified until August 2003 when his DNA was processed through the police "DNA back-catcher" program. Police had requested a sample of his DNA whilst he was on parole in 2002, but he became extremely agitated by that request and avoided providing one until August 2003. He was interviewed on 18 August 2003 and told police he had been living adjacent to the complainant's house at the time, but refused to say more. Counsel for the applicant had suggested to the Judge that the explanation for the applicant's failure to co-operate with police and to admit to his guilt earlier was that he had no recollection of the offences because his mind had been so affected by drugs. His Honour said he had "difficulty" with that proposition.

5 Given that his Honour expressly had regard to the applicant's pleas of guilty, his comment about that and the (unchallenged) facts upon which he was sentencing the applicant, the end result does not demonstrate his Honour failed to give sufficient weight to the applicant's pleas of guilty.

6 PULLIN JA: I agree with the reasons for decision of Le Miere AJA and the orders he proposes.

7 LE MIERE AJA: The applicant applies for leave to appeal against the sentence imposed upon him and for an extension of time within which to commence the appeal.

8 The applicant was charged on indictment that on 10 May 2002 at Coolbellup he committed the offences of one count of aggravated burglary, two counts of deprivation of liberty and one count of aggravated sexual penetration. On 12 May 2004 the applicant pleaded guilty and was convicted of each of those offences.

9 On 18 June 2004 the learned sentencing Judge imposed sentences of imprisonment as follows: for the offence of aggravated burglary, 2 years and 8 months; for each offence of deprivation of liberty, 16 months and for the offence of aggravated sexual penetration, 5 years and 4 months. The learned sentencing Judge ordered that the sentence for one count of deprivation of liberty should be served concurrently with the sentence for the offence of aggravated sexual penetration but otherwise the sentences should be served cumulatively upon each other. The aggregate of the terms of imprisonment (or head sentence) was 9 years and 4 months. The learned sentencing Judge directed that the applicant be eligible for parole. Accordingly, as a result of the sentences and the operation of the

Sentencing Act 1995 (WA), the applicant will serve a minimum period of 7 years and 4 months in custody.

10 At approximately 4.30 am on 10 May 2002 the applicant attended at the complainant's residence in Coolbellup. He jumped an asbestos fence at the front of the premises into the complainant's rear yard. Once in the yard, he entered the premises through an unlocked sliding door and entered the kitchen. At that time the complainant, who was 36 years of age, was asleep in her bedroom. Her 3-year-old daughter was asleep in a separate bedroom.

11 The complainant awoke to noises in her kitchen and entered the kitchen to investigate. There she was confronted by the applicant. She screamed. The applicant grabbed her and held a gloved hand over her mouth to suppress her screams. The complainant struggled to break free but was overpowered by the offender who forced her into the study. The applicant then told the complainant to stop screaming or else he would stab her. The complainant stopped screaming. The complainant's 3-year-old daughter was woken by the screaming and left her bedroom crying and distressed. The applicant ordered the complainant to return her daughter to the bedroom and in doing so released his grip on her. The complainant picked up her daughter and ran towards the front door in an effort to escape. The complainant was unable to escape because the front door was deadlocked and the applicant again grabbed the pair. He pushed the complainant back towards the study whilst having a hand around her neck and ordered her to put her daughter back in the bedroom. When the daughter refused to return to her bedroom the applicant shut the study door so the 3-year-old was left standing alone in the hallway screaming.

12 Whilst in the study the applicant removed the complainant's top so that she was naked. He stood behind her and lent on her so that she was bent over a portable massage table. He then asked the complainant to say the words, "fuck me" and pushed his erect penis into her vagina from behind and penetrated her until he ejaculated. The applicant told the complainant that he was going to leave the premises and told her in a threatening manner that if she contacted the police she would be "a very sorry girl". He then left the premises.

13 At all times the complainant did not see the applicant's face, although she could make out his build, height and hairstyle. The applicant's DNA was later found in the complainant's vagina and that is how the applicant was apprehended.

14 On 18 August 2003 the applicant was interviewed by Detectives. He admitted that at the time of the offence he had been living almost adjacent to the complainant's residence. He also admitted to entering the complainant's premises previously when it had former tenants. He refused to participate in further questioning in relation to these offences.

15 The applicant is presently aged 31. He was 28 years old at the time of the offences. He is the only child of his parents' union. He has three half siblings from the previous and subsequent relationships of his parents. The applicant's parents separated when he was 4 years of age and he has had little regular contact with his father. His childhood was characterised by separation, transience and financial difficulty. He left his mother's home to live with his girlfriend at 17 years of age. The relationship produced two children aged 10 and nine years at the time of sentencing. The applicant had custody of the children as a consequence of abuse issues being perpetrated by his former partner's boyfriend. At the time of sentencing the children were in the care of the applicant's mother. The applicant attended school until 15 years of age when he left without achievement. His employment history consists of periods of short-term, unskilled labouring.

16 The applicant has a history of poly substance use, which commenced at 14 years of age and which includes the use of cannabis, lysergic acid, ecstasy and amphetamine. He first appeared in court at 15 years of age. He has a history of convictions for burglary, dishonesty, and drug and motor vehicle related offences. He has previously served terms of imprisonment. He was released on parole on 31 August 2001 for a period due to expire on 31 July 2002. He committed the present offences whilst on parole.

17 The complainant was brutally violated in her own home. The offence was described by the learned sentencing Judge as "horrendous". It was an invasion of the complainant's sense of autonomy, dignity, privacy and sense of security, as well as a physical violation. The offence has had a devastating effect upon the complainant and left her with a lasting sense of humiliation, curtailment of freedom and loss of self-esteem. The attack has also had a lasting effect upon the complainant's daughter, who was forced to experience the attack upon her mother, separated only by a door.

"1. The learned sentencing Judge erred in ordering that the sentence he imposed on counts 1 and 3 be served cumulatively. All counts arose out of the one course of conduct and all counts should therefore have been ordered to be served concurrently.

2. In the alternative, the learned sentencing Judge erred in ordering the sentence he imposed on count 1 be served cumulatively. This count [of aggravated burglary] was clearly part of a course of conduct and the sentence should have been ordered to be served concurrently.

3. The learned sentencing Judge failed to give sufficient consideration to the appellant's plea of guilty and the appellant's stated desire not to put the victim through the trauma of a trial."

19 At the hearing of his application the applicant relied upon a written outline of submissions.

Principles involved in appeals against sentence

20 The principles according to which an appellate court may interfere with the discretionary judgment of a sentencing Judge are well established. A Court of Criminal Appeal may not substitute its own opinion for that of the sentencing Judge merely because the appellate court would have exercised its discretion in a manner different from the manner in which the sentencing Judge exercised his or her discretion. The discretion which the law commits to sentencing Judges is of vital importance in the administration of our system of criminal justice: Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665 per the Court at [15]. The question for an appeal court is whether the sentence imposed by the sentencing Judge involved error of a kind warranting appellate interference with a discretionary judgment. Unless some material error of fact or law can be discerned in the reasoning of the sentencing Judge, then the question for the appellate court to consider is whether the circumstances of the case are such that the imposition of the sentence involved an implied error.

21 The applicant submits that in ordering that the sentences imposed for aggravated burglary and one count of deprivation of liberty (of the child) be served cumulatively upon the sentences imposed for unlawful detention and sexual assault of the complainant, the learned sentencing Judge erred in that the resulting head sentence of 9 years and 4 months was manifestly excessive and failed to reflect what was one course of conduct flowing from the offence of aggravated burglary.

22 In Pearce v The Queen (1998) 194 CLR 610 McHugh, Hayne and Callinan JJ, in their joint judgment, discussed whether the appellant could be or was doubly punished. Pearce had been indicted upon charges which included having maliciously inflicted grievous bodily harm with intent to do the victim grievous bodily harm, contrary to s 33 of the Crimes Act 1900 (NSW), and with having broken and entered that victim's dwelling house and, while in it, inflicting grievous bodily harm on him, contrary to s 110. The charge arose out of a single incident in which Pearce broke into the victim's home and beat him, causing life-threatening injuries. Pearce was sentenced to 12 years' imprisonment on each count, to be served concurrently.

"To the extent to which two offences of which an offender stands convicted contain common elements, it would be wrong to punish that offender twice for the commission of the elements that are common. No doubt that general principle must yield to any contrary legislative intention, but the punishment to be exacted should reflect what an offender has done; it should not be affected by the way in which the boundaries of particular offences are drawn. Often those boundaries will be drawn in a way that means that offences overlap. To punish an offender twice if conduct falls in that area of overlap would be to punish offenders according to the accidents of legislative history, rather than according to their just deserts."

24 Their honours said that it was clear in that case that a single act (the appellant inflicting grievous bodily harm on his victim) was an element of each of the offences under s 33 and s 110. Their honours continued [at 42]:

"The identification of a single act as common to two offences may not always be as straightforward. It should, however, be emphasised that the enquiry is not to be attended by 'excessive subtleties and refinements'. It should be approached as a matter of commonsense, not as a matter of semantics."

25 In Pieri v The Queen [2001] WASCA 357 Einfeld AJ, with whom Wallwork J agreed, quoted Thomas': "Principles of Sentencing", 2nd ed, 1979 at p 53:

"Where two or more offences are committed in the course of a single transaction, all sentences in respect of these offences should be concurrent rather than consecutive."

26 At [41], Einfeld AJ expressed the essence of the rule as follows:

"The essence of the one transaction rule thus appears to be that consecutive or cumulative sentences are inappropriate when all the offences taken together constitute a single invasion of the same legally protected interest ..."

27 In R v White [2002] WASCA 112 McKechnie J said:

"[25] The question commonly posed for answer by a sentencing Judge is whether the offences arise out of the same set of facts so that the sentences should properly be made concurrent, or whether the offences disclose entirely distinct conduct which should attract separate and therefore cumulative punishment ...

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

28 The learned sentencing Judge expressly referred to the need to consider whether the sentences in relation to the offences should be made concurrent or cumulative and continued:

" ... the prosecutor has put the proposition that the deprivation of the liberty of the child is really a separate offence, and I agree with that proposition. Having taken all those matters into account I am of the view that these are very serious offences."

29 The offences of aggravated burglary, unlawful detention of the child and aggravated sexual penetration of the complainant are distinct offences, each of a different character. There is no common element to the offences. The offences are of such a distinct character that, notwithstanding the closeness in time over which they were committed, it was a proper exercise of sentencing discretion to accumulate the sentences to a point where the totality of the sentences would become oppressive.

30 The applicant submits that the total effective or head sentence failed adequately to address the totality principle. A basic principle of sentencing law is that a sentence of imprisonment imposed by a court should not exceed that which can be justified as appropriate or proportionate to the gravity of the crime considered in light of its objective circumstances. Individual sentences must not only be proportionate, but, in the case of multiple offences, the total sentence must be proportionate to the totality of the offending.

31 The totality principle requires a Judge who is sentencing an offender for a number of offences to ensure that the aggregation of the sentences appropriate for each offence is a just and appropriate measure of the total criminality involved. The principle 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. The application of the totality principle therefore requires an evaluation of the total criminality involved in all the offences with which the prisoner is charged. Where necessary, the court must adjust the prima facie length of the sentences downward in order to achieve an appropriate relativity between the totality of the criminality and the totality of the sentences: Postiglione v The Queen [1997] HCA 26; (1997) 189 CLR 295 per McHugh J at 307 - 308.

32 The total effective or head sentence imposed on the applicant is not so crushing or oppressive as to offend the totality principle. Looked at overall, the effect of the sentences imposed on the applicant is not disproportionate to the criminality of his conduct. Having regard to the seriousness of the offences committed by the applicant I conclude that the total aggregate or head sentence is not manifestly excessive.

33 The applicant has not established any material error of fact or law by the sentencing Judge, nor are the circumstances of the case such that the sentences imposed involve some implied error. Grounds 1 and 2 would not succeed.

34 The applicant submits that the learned sentencing Judge failed to give sufficient consideration to his plea of guilty and his stated desire not to put the complainant through the trauma of a trial. The learned sentencing Judge took into account the applicant's plea of guilty. His Honour said:

"I take into account that you have pleaded guilty, albeit at a late stage, and I would have thought the proposition that the prosecutor put, that the case was overwhelming, is correct."

35 In her plea in mitigation to the sentencing Judge, counsel for the applicant conceded that the case against the applicant was overwhelming because his semen was found in the complainant's vagina. As counsel said, it could not have got there unless there had been an attack in the way the complainant outlined.

36 A plea of guilty should be taken into account regardless of whether or not it is also indicative of some other quality or attribute such as remorse which is regarded as relevant for sentencing purposes. A plea of guilty may be taken into account in mitigation, even though it is solely motivated by self-interest. As Kirby P said in Dodge (1988) 34 A Crim R 325 at 331:

"In the present condition of the lists of criminal trials awaiting hearing, the public interest demands that greater attention be paid now than perhaps was formerly paid by sentencing judges to the consideration that a plea of guilty in the individual case saves public time and cost and contributes to reducing delays which are a matter of particular concern and potential injustice in criminal trials."

37 The timing of the plea is important. In this case it is conceded by the applicant that it was not an early plea of guilty. The strength of the case against the accused is also significant. A plea of guilty made in the face of evidence that is not overwhelming is very significant. On the other hand, a late plea of guilty in the face of an overwhelming prosecution case has much less mitigatory impact. This is such a case.

38 The learned sentencing Judge took into account the applicant's plea of guilty. Neither the sentence imposed by the sentencing Judge nor his Honour's sentencing remarks disclose any error. This ground of appeal would not succeed.

39 I would refuse leave to appeal against sentence on the ground that the proposed appeal does not have sufficient merit to justify a grant of leave to appeal. I would refuse an extension of time in which to apply for leave to appeal for the same reason.

• The facts
• Antecedents
• Victim impact
• Grounds of appeal
• Principles involved in appeals against sentence
• Appeals grounds 1 and 2
• Appeal ground 3
• Conclusion