Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA

Appeal - Prosecution appeal against sentence - Principles - Whether s 41(4)(b) of Criminal Appeals Act 2004 (WA) applies retrospectively - Whether section operates on a right or interest of the respondent

Criminal law and procedure - Sentence - Sexual penetration without consent - Where custodial sentence would weigh more heavily on the offender than upon the average prisoner - Aboriginal offender from a remote community - Mitigating factors which may be taken into account

Criminal Appeals Act 2004 (WA), s 41(4)(a), s 41(4)(b)

Criminal Law and Evidence Amendment Act 2008 (WA)

Interpretation Act 1984 (WA), s 5, s 37(1)(c)

Sentence imposed by the trial judge quashed, sentence of three years' immediate imprisonment imposed in lieu

1 MARTIN CJ: The reasons to be given by Steytler P accurately reflect the reasons why I joined in the joint judgment of the court allowing the appeal, setting aside the sentence imposed by the trial judge and instead imposing a sentence of three years immediate imprisonment. In particular I agree with the reasons given by Steytler P for the conclusion that s 41(4)(b) of the Criminal Appeals Act 2004 (WA) (inserted by the Criminal Law and Evidence Amendment Act 2008 (WA)) does not operate retrospectively.

2 However, I will add a few observations of my own in response to the suggestion of the trial judge that it is 'an important time for the Court of Appeal to look closely at the whole question of sentencing people from remote communities and ... give the judges of this court some guidance because it is an extremely difficult sentencing exercise' (ts 113).

3 The gross over-representation of Aboriginal people in the criminal justice system of Western Australia is one of the greatest issues confronting that system. Despite the implementation of many of the recommendations of the Royal Commission into Aboriginal Deaths in Custody which were aimed at reducing the rate of imprisonment of Aboriginal people, that rate has grown exponentially. In 1987, the rate of Aboriginal imprisonment in Western Australia was 1,331 per 100,000 people. Twenty years later, in 2007, that rate had almost trebled to 3,886 per 100,000 people. That figure is to be compared to the rate of 142 per 100,000 people in respect of the non-Aboriginal population of the state. This means that the rate of Aboriginal imprisonment is about 27 times that of the non-Aboriginal population. In practical terms, that means that about one out of 15 adult Aboriginal men is in prison at any given time.

4 The comments made by the trial judge also come at a time when there has been a dramatic increase in the reported rate of sexual assaults occurring within remote Aboriginal communities. The increment in that rate has been so significant as to require special procedural measures to be taken by the courts to deal with the rapid increase in cases of that kind. It is, of course, impossible to know whether the increase in the reported rate of those offences reflects an actual increase in offending conduct, or simply an increase in the rate at which such conduct is reported - perhaps because of the implementation of significant changes in the support services provided to those communities, including the permanent presence of police and community health workers.

5 It is impossible to overstate the importance of these issues to the development of appropriate social policy. However, it is equally important to emphasise that these things provide no justification whatever for adopting any different approach in the sentencing of Aboriginal offenders. There is only one law of Western Australia, and it applies equally and without differentiation between Aboriginal and non-Aboriginal persons. And as the trial judge acknowledged, Aboriginal women (and children) are every bit as entitled to the protection of the law as non-Aboriginal women (and children). Implicit in that acknowledgement is recognition of the fact that the adoption of an approach to the sentencing of Aboriginal sexual offenders which is, or is seen to be, more lenient than that taken in respect of non-Aboriginal offenders carries the grave risk of appearing to condone, or treat less seriously, conduct which is abhorrent to all Western Australians, merely because it takes place in Aboriginal communities.

6 As Steytler P points out, it is well established that the same sentencing principles are to be applied irrespective of the racial, cultural or ethnic background of the offender (see Neal v The Queen [1982] HCA 55; (1982) 149 CLR 305, 326 (Brennan J)). And as Malcolm CJ pointed out in Rogers v The Queen (1989) 44 A Crim R 301, 307:

Race itself is not a permissible ground of discrimination in the sentencing process.

...

It follows from this that the sentencing principles to be applied in relation to a sexual offence committed by an Aboriginal must be the same as those in any other case. It is apparent, however, that there may well be particular matters which the court must take into account, in applying those principles, which are mitigating factors applicable to the particular offender. These include social, economic and other disadvantages which may be associated with or related to a particular offender's membership of the Aboriginal race.

7 Within the constraints imposed by the sentencing legislation of the state, the courts can and must take into account all the circumstances of the offence, and of the complainant and the offender and his or her background, which are relevant to the sentence to be imposed. So, while Aboriginality of itself must be irrelevant to the sentencing process, the fact that an offender has spent his entire life in a remote community and has a cultural and spiritual connection to the land of that community and has difficulties with the English language, will properly be taken into account at the time of sentence because they bear upon the impact which a sentence of imprisonment will have upon that offender.

8 Of course, the considerations properly taken into account are not limited to mitigating factors. In this case, the cultural attitude of the offender and the complainant to their familial relationship is a circumstance which aggravates the offence committed.

9 For these reasons, I would respond to the question rhetorically posed by the trial judge at the time of passing sentence by observing that there cannot be principles of sentencing specifically applicable to offenders from remote Aboriginal communities. Rather, it is the obligation of the court, at the time of passing sentence, to take account of all relevant facts and circumstances pertaining to the offence, the victim of the offence, and the offender. That is precisely the same obligation which applies to a court any time a sentence is imposed. The application of that fundamental sentencing principle will enable relevant circumstances which are related to the cultural and ethnic background of the particular offender to be taken into account, but to no greater or lesser extent than those factors would be taken into account in the case of any offender from any particular cultural or ethnic background.

10 STEYTLER P: The State has appealed against the sentence imposed upon the respondent following his conviction, by a jury, of one count of sexual penetration without consent. The respondent was sentenced to 3 1/2 years' imprisonment, conditionally suspended for 2 years. At the conclusion of argument on the appeal we allowed the appeal, set aside the sentence imposed and, in lieu, imposed a sentence of 3 years' immediate imprisonment, with eligibility for parole. We said that we would provide our reasons for doing so at a later date. These are my reasons for joining in that decision.

11 The offence was committed on 21 October 2005. The complainant was a 46-year-old woman. She knew the respondent. She was the cousin of his father which, in Aboriginal terms, was regarded as a relationship of aunt and nephew. She lived in Warburton, but had travelled to Laverton on the previous day. On the day of the offence she was looking for her daughter. The respondent claimed to know where the complainant's daughter was and offered to drive the complainant there. The respondent drove the complainant to a deserted area. She left the car but the respondent chased her, caught her, pushed her down and told her he wanted sex. She told him that she did not want to have sex with him. She repeatedly tried to push him away. He overcame her resistance, lay on top of her, pulled off some of her clothing and forced his penis into her vagina

while she was screaming, 'No, no'. The respondent continued to have sex with the complainant until she was able to push him away. She ran to the car and told him she wanted to go home. He drove her back to Laverton.

12 That evening, the complainant told police that she had been raped by the respondent. She was distressed and ashamed of what had been done to her. Her distress and shame were added to by the fact that she regarded the respondent as her nephew.

13 The respondent was 27 years old at the time of the offence. He is a member of the Wanun community. The community lives about 1,500 km away from Kalgoorlie, in the western desert. The respondent is married, with two children. His wife continues to support him. He is highly thought of in his community and the offence was out of character for him. He has a relatively minor criminal record. He has not previously committed any offence involving sexual conduct or physical violence. His offending is contributed to by binge drinking, which he seemingly engages in when he is away from the Wanun community. Local by-laws prevent the use of alcohol in the community.

14 The pre-sentence report prepared in respect of the respondent reveals that he does not often get drunk. He is ordinarily non-violent, happy and friendly. He has little formal education and is not literate in the English language. The report reveals that the sex offender treatment programme is unavailable at the Wanun community. If the respondent were placed on community supervision, counselling in relation to risk-taking behaviour and strategies to avoid re-offending could be undertaken by the supervising case manager. This person would have contact with the respondent on a monthly basis, when visits are made to the Wanun community. The report records that the respondent had expressed a desire to address his alcohol abuse.

15 A report has also been prepared in respect of the respondent by a psychologist. This was based on information obtained from a brief clinical interview with the respondent, from results of psychometric testing and from secondary information provided to the psychologist. The psychologist had difficulty communicating with the respondent, who had no sound understanding of the questions being asked of him. The interview was terminated prematurely for that reason.

16 The report records that the respondent's risk of re-offending was assessed by means of the Static 99 test. This placed him in the medium to low risk category. However, the psychologist records that some caution needs to be exercised, as the test has not been developed or normed on an indigenous population. The psychologist suggests that the respondent's comprehension difficulties might impact on his ability to participate in and gain from treatment to address his sexual offending behaviour and alcohol use. She suggests that treatment would need to be on an individual basis, requiring simple and concrete explanations for the respondent's behaviour. She says that treatment of that kind may be available in prison and in the metropolitan area, depending on resources, but is unlikely to be available in the community in which the respondent lived.

17 While the report is of some assistance, its value is, of course, very much less than it would have been if the psychologist had had access to an interpreter.

18 When the sentencing judge came to make her sentencing remarks she expressed understandable frustration at the fact that the psychologist had not conducted her interview by means of an interpreter. She said that she had no confidence that anyone in the Department of Corrections would arrange for an interpreter to assist the respondent with sex offender treatment. She considered that this had the consequence that any imprisonment that she might impose would not be useful so far as sex offender treatment was concerned. She said that, if imprisoned, the respondent would probably serve his time at Acacia prison, where no-one spoke his language and where he would be unable to be involved in any work or in any programmes. She also said that he would have no culturally appropriate activities and that he would 'do his time hard'. He would have no visits from family. He would be estranged from his community, his language and his culture.

19 Although recognising that the offence was very serious, the sentencing judge said that there were mitigating circumstances. These included the fact that the respondent was usually a man of good character who did not ordinarily drink alcohol, the fact that the respondent had ultimately desisted from his offending behaviour and the fact that he had taken the complainant back to Laverton after committing the offence. She accepted that forceful sexual penetration 'is about as bad as it can get in terms of an injury to [the complainant]', but added that the respondent had not bashed the complainant. She went on to say:

I am very concerned in this case that the offender, if I sentence him to a period of immediate imprisonment, will waste his time in prison. He will not be anywhere near country. He will be living in a foreign environment. He will receive no culturally appropriate treatment nor any opportunity to get sex offender treatment. I accept that normally and almost inevitably a forceful sexual penetration requires immediate imprisonment and I take very seriously what the state has said to me about the danger of appellable error.

However, in this case, despite the very great seriousness of this forceful sexual penetration, I believe that there are exceptional circumstances which refer both to the matters in mitigation personal to this offender and to the very serious lack of culturally appropriate services in our own corrections department, the Department of Corrective Services, as shown to me by the failure of the service to provide an interpreter when they asked a psychologist to interview and report to me. To have a psychologist who clearly could not communicate with the offender and prepare a report was a waste of everyone's time and for the Corrective Services to have done that indicates to me that they have totally failed the cultural and traditional aspects of this matter.

I am highly aware of the problem that not imprisoning him does present when it appears to be treating too leniently a man who has done this offence to an Aboriginal woman. I do not by this sentence intend in any way to leave Aboriginal women unprotected. I am advised that because in this particular case the offender could be under my sentence required to remain at his dry community in Wanun, he could at that place be given some alcohol abuse counselling from the community corrections officer, taking advantage of cultural and language capabilities, and that he could be assisted in addressing his sexual offending by the case officer who visits the Wanun community.

It's the only place he will have any treatment in any meaningful way for offending that he recognises he needs help with. He is ready right now, I believe, to have alcohol abuse treatment that would possibly stop him from the binge drinking which is causative of his offending. I also accept that the time spent in prison so far away by Aboriginal persons is much more stressful, much worse punishment than is suffered by the rest of the community.

20 The sentencing judge said that she would normally have imposed a sentence of 5 years' imprisonment, but that she would reduce that term by 6 months because of the period of approximately 90 days spent by the respondent in custody. She then reduced the term of 4 1/2 years' imprisonment by a third pursuant to the transitional provisions enacted by the Sentencing Legislation Amendment and Repeal Act 2003 (WA) and fixed a term of 3 1/2 years' imprisonment. This reflected a mathematical error. The calculation should have resulted in a term of 3 years' imprisonment.

21 The sentencing judge went on to order that the sentence of imprisonment be conditionally suspended for a period of 2 years. She ordered that the respondent be under supervision and that he was not to leave his community's lands without the prior approval of the community corrections officer. She required him to attend counselling for alcohol abuse and consult with the community corrections officer on regular visits to the Wanun community. She said that she was 'also moved to this particular sentence by the fact that [the respondent] has shown ... extreme remorse and shame and there is Aboriginal punishment not only of himself but of his family for the wrong that he has done that he recognises'.

22 Her Honour concluded her sentencing remarks by saying that she regarded it as an important time for the Court of Appeal to look closely at the whole question of sentencing people from remote communities.

23 There are three grounds of appeal. The first is that the sentencing judge erred in suspending the term of imprisonment imposed upon the respondent. This is said to have resulted in a sentence that was not commensurate with the seriousness of the offence. The second ground refers to the sentencing judge's mathematical error in imposing a term of 3 1/2 years instead of one of 3 years. It is common cause between the parties that the sentencing judge made this error. The third ground is that the sentencing judge erred in giving too much weight to circumstances personal to the respondent, resulting in a sentencing disposition that was not commensurate with the seriousness of the offence.

24 The particulars to ground 3 raise a number of contentions. The first is that excessive weight was given to the effect that imprisonment would have upon the respondent. The second is that the comments made by the sentencing judge about the unavailability of a sex offender treatment programme in a custodial setting and the environment that the respondent would experience in prison were without evidential foundation. The third is that the sentence imposed failed to reflect the deterrent effects of imprisonment. The fourth is that the absence of a meaningful psychological report prepared with the assistance of an interpreter is 'not a mitigating factor'. The fifth is that excessive consideration was given to the fact that the complainant did not sustain physical injuries. Finally, the particulars contend that the sentencing judge erred in concluding that the respondent had shown 'extreme remorse' in circumstances in which there was no acceptance by him that he had committed the offence.

25 There is a preliminary issue that must first be determined. It is whether s 41(4)(b) of the Criminal Appeals Act 2004 (WA) is retrospective in its operation. That provision was inserted into the Criminal Appeals Act by the Criminal Law and Evidence Amendment Act 2008 (WA) (2008 Amendment Act), which came into operation on 27 April 2008. The appeal was commenced prior to that, on 1 November 2007.

The appeal court deciding an appeal that does or may require it to impose a sentence, or to vary a sentence imposed, on a person for an offence (whether the appeal was commenced by the person or by the prosecutor) -

(a) may take into account any matter, including any material change to the person's circumstances, relevant to the sentence that has occurred between when the lower court dealt with the person and when the appeal is heard; but

(b) despite paragraph (a), must not take into account the fact that the court's decision may mean that the person is again sentenced for the offence.

27 The section was considered by this court in The State of Western Australia v Wallam [2008] WASCA 117. A majority of the court (Miller JA & Murray AJA, McLure JA dissenting) concluded that it applied to the appeal in that case, which was commenced on 3 January 2008. This was so notwithstanding that two of the three judges (McLure & Miller JJA) agreed that the section had changed existing common law principles applicable to a State appeal against sentence. In particular, it had done away with the principle that, when the court decides to re-sentence an offender on a State appeal, it ordinarily gives recognition to the element of double jeopardy involved (in twice standing for sentence) by imposing a sentence that is somewhat less than the sentence that, in its opinion, should have been imposed at first instance: The State of Western Australia v Collier [2007] WASCA 250 [18] - [23].

28 Miller JA concluded [65], in this respect, that the section did not impair any existing substantive right. He consequently regarded it as applying to any appeal heard after it came into operation.

29 Murray AJA interpreted the section in such a way as to conclude that it left 'substantially unaffected the general principle by which the court will be guided in its approach to an appeal against sentence by the prosecution' [121]. However, he went on to say [123] that the section did not operate upon any right or interest vested in the respondent prior to its coming into effect, that it was procedural in effect and that it consequently applied to the appeal.

30 McLure JA, in dissent, considered [36] that the section was substantive and not procedural in its effect and that it ought not be given a retrospective operation because it affected an accrued substantive right of the respondent. She identified that right in the following way [35]:

Immediately prior to the commencement of s 41(4)(b), the State had, and had exercised, its right to appeal against the sentence imposed on the appellant (s 24(1) of the Criminal Appeals Act). Both the State and the offender had a right to have the appeal against sentence determined in accordance with the substantive statutory and common law rules relating to the sentencing of offenders, both by the trial judge and, if the appeal is successful, by the appeal court. Until the commencement of s 41(4)(b), the principles relating to State appeals were mandatory relevant considerations which had a substantive effect on the sentence to be imposed. See Holyoak v The Queen (Unreported, WASCA, Library No 950465, 7 September 1995) (32); R v MJR [2002] NSWCCA 129; (2002) 54 NSWLR 368. The right to be re-sentenced in accordance with existing sentencing principles had accrued, at the latest, by the commencement of the appeal. Section 41(4)(b) changed the law so that a mandatory relevant consideration to the offender's benefit became a mandatory irrelevant consideration.

31 The starting point, in considering a question of this kind, is often Maxwell v Murphy [1957] HCA 7; (1957) 96 CLR 261. That case is frequently cited for the following proposition (267, Dixon CJ):

The general rule of the common law is that a statute changing the law ought not, unless the intention appears with reasonable certainty, to be understood as applying to facts or events that have already occurred in such a way as to confer or impose or otherwise affect rights or liabilities which the law had defined by reference to the past events.

32 The following extract from the judgment of Fullagar J in Fisher v Hebburn Ltd [1960] HCA 80; (1960) 105 CLR 188, 194 is also often cited:

There can be no doubt that the general rule is that an amending enactment - or, for that matter, any enactment - is prima facie to be construed as having a prospective operation only. That is to say, it is prima facie to be construed as not attaching new legal consequences to facts, or events which occurred before its commencement.

33 Both statements have been endorsed by the High Court: Geraldton Building Co Pty Ltd v May [1977] HCA 17; (1977) 136 CLR 379; Mathieson v Burton [1971] HCA 4; (1971) 124 CLR 1, 22 (Gibbs J); and see also Chang v Laidley Shire Council [2007] HCA 37; (2007) 81 ALJR 1598 [41] (Kirby J) and, in the Privy Council, Yew Bon Tew v Kenderaan Bas Mara [1983] 1 AC 553, 560 - 562.

34 The presumption against retrospective operation is common law based. In this State, it has some statutory backing through the enactment of s 37(1)(c) of the Interpretation Act 1984 (WA). That section provides that the repeal of an enactment does not, unless the contrary intention appears, 'affect any right, interest, title, power or privilege created, acquired, accrued, established or exercisable or any status or capacity existing prior to the repeal'. The courts have generally regarded the statutory test (uniformly expressed in most jurisdictions) as not leading, relevantly, to any different result than the common law: Robertson v City of Nunawading [1973] VicRp 81; [1973] VR 819, 827 (Winneke CJ, Gowans & Starke JJ); Carr v Finance Corporation of Australia Ltd [1982] HCA 43; (1982) 150 CLR 139, 152. The statutory provision is applicable only in the case of the repeal of an 'enactment', defined in s 5 of the Interpretation Act as meaning 'a written law or any portion of a written law'. There is, for present purposes, no repeal of any relevant enactment (the 'double jeopardy' principle having been a creation of the common law) and the question is consequently whether the common law presumption must be applied.

35 Pearce and Geddes, Statutory Interpretation in Australia, (6th ed 2006) 308 [10.3] point out that '[a]ll legislation impinges on existing rights and obligations' and that '[c]onduct that could formerly be engaged in will have to be modified to fit in with the new law' (a statement approved by the High Court (Hayne, Heydon & Crennan JJ) in Chang [113]). The common law presumption is consequently that an Act 'speaks only as to the future': Coleman v Shell Company of Australia (1943) 45 SR (NSW) 27, 30 - 31 (Jordan CJ); Chang [113] (Hayne, Heydon & Crennan JJ). Also, when considering the issue of retrospectivity under the common law, the question is not whether a provision can be characterised as procedural in the broad sense. The High Court has said, in Victrawl Pty Ltd v Telstra Corporation Ltd [1995] HCA 51; (1995) 183 CLR 595, 615 that the question is

whether the provision's operation is merely procedural in the sense that it would not, if given unconfined operation, affect pre-existing substantive rights or liabilities. It is only if a statutory provision is merely procedural in that narrow sense that the ordinary presumption against retrospective operation is inapplicable.

(See also Rodway v The Queen [1990] HCA 19; (1990) 169 CLR 515, 518; and John Pfeiffer Pty Ltd v Rogerson [2000] HCA 36; (2000) 203 CLR 503.)

36 In my respectful opinion, the 'right' in question was correctly identified by McLure JA in Wallam. Once that is accepted, it seems to me inevitably to follow that amending legislation doing away with that accrued right is substantive in its effect. That is because the right is one which has a substantive effect on the sentence to be imposed, should the appeal succeed.

37 It is important to bear in mind, in this respect, that the common law presumption has been said not to 'call for a narrow conception of a right' because, if the position were otherwise, 'the essential justice of the rule would be eroded': Carr (151) (Mason, Murphy & Wilson JJ). In Chang Kirby J [40] preferred, in this context, to use the word 'entitlement' rather than 'right'. He said that the word 'indicates that what is involved may fall short of an immediately enforceable legal right in the strict sense'. Also, as he pointed out [40], 'accrued entitlement' was the phrase used by Lord Brightman in Yew Bon Tew (565) 'to explain the broader types of "rights" protected against extinguishment by non-specific laws'. Kirby J went on to say [40] and [41]:

The House of Lords has accepted (Plewa v Chief Adjudication Officer [1995] 1 AC 249 at 259 per Lord Woolf), as did the Privy Council earlier (Free Lanka Insurance Co Ltd v Ranasinghe [1964] AC 541), that inchoate rights, obligations and liabilities are protected by statutory provisions such as s 20 of the Acts Interpretation Act 1954 (Qld) which the appellants invoked here. The same is true of the common law principle that preceded, and moulds itself to, such statutory provisions.

The foregoing is the approach that this Court adopted in Maxwell v Murphy ... Cases of this kind commonly provoke dissenting opinions ... This fact itself suggests that a non-mechanical approach to the protection of 'entitlements', rather than of strict 'rights', is at stake. The search is one for the overall effect and operation of the legislation.

38 In arguing that there is in the present case no accrued substantive right, counsel for the appellant placed some reliance on the case of Telford v Severin [2007] SASC 176; (2007) 98 SASR 70. In that case the appellant, who had been sentenced to a lengthy term of imprisonment, applied for release on home detention. At the time he was sentenced, the Correctional Services Act 1982 (SA) gave the Department of Correctional Services a discretion to release a prisoner from prison to serve a period on home detention after the prisoner had served at least one-half of the non-parole period of his sentence. More than 3 years after the appellant had been sentenced, the Act was amended to provide that release on home detention was not to occur earlier than one year before the end of a prisoner's non-parole period. The Department refused to consider the appellant's application because it was lodged more than a year before the end of his non-parole period. The appellant applied for a declaration that his application was competent and for ancillary relief. His application was unsuccessful. The court (Duggan J, White & Kelly JJ concurring) found that the amendment applied to the appellant's application and that it was not retrospective in its effect because the appellant had not, at the time of sentencing, acquired a right of the kind that was preserved either under the Acts Interpretation Act 1915 (SA) or pursuant to the common law presumption against retrospectivity.

39 However, the basis for the decision appears in the following extract [23] from the judgment of Duggan J:

In my view, no such right is to be found in the Act. It has been pointed out that the concept of home detention is not a component of the sentence; nor is it a matter which the court could take into account in determining the appropriate sentence. A decision to release on home detention is at the absolute discretion of the Chief Executive Officer as is any decision to terminate the licence. Although it is departmental practice for an application to be made by a prisoner for release on licence, neither the Act nor any regulation provides for such an application. The Act does not impose any obligation on the Chief Executive Officer to consider whether home detention should be ordered in a particular case. The decision is managerial in nature. As at the time of sentencing, the plaintiff possessed nothing more than a hope or expectation that the power to release on home detention might be exercised in his case in due course.

40 It is settled that the common law presumption does not apply where there is no accrued right, but merely a hope or expectation that a right will be created: Director of Public Works v Ho Po Sang [1961] AC 901; Mathieson (23). An application for special leave to appeal lodged by the appellant in Telford was unsuccessful for that reason: Telford v Severin [2007] HCA Trans 427. Gummow and Heydon JJ (Kirby J dissenting) dismissed the application on the ground that the Full Court had been right in its opinion that the appellant had had no accrued right and that the amending Act was prospective in its application.

41 In the present case, the respondent had more than a mere hope or expectation. I have said that he had a right, that had accrued (at the latest) by the time of the lodgement of the State's notice of appeal, to be re-sentenced in accordance with existing mandatory sentencing principles applicable to appeals of that kind. That was a substantive right. As I have stressed, the mandatory relevant considerations applicable to State appeals against sentence had a substantive effect on the severity of the sentence to be imposed, if the appeal should succeed.

42 There is nothing in the 2008 Amendment Act to suggest that s 41(4) of the Criminal Appeals Act was intended to operate retrospectively. It follows, in my opinion, that it has no retrospective operation and that the ordinary principles summarised in Collier are applicable to this appeal, and Wallam should be overruled in that respect.

43 This case illustrates the difficulties that are presented when sentencing people from remote communities. They arise because the persons in question are often (indeed ordinarily) required to serve their term of imprisonment at a location far distant from their community, family and friends. Sometimes, hardship for the prisoner can be increased by the absence of skills with the English language, as the present case reveals.

44 It is settled that, 'in determining the duration of a custodial sentence, [courts will] take into account features of the offence or of the offender which will result in imprisonment bearing down more severely upon the offender than upon the average prisoner': Astill (No 2) (1992) 64 A Crim R 289, 293 (Kirby P); R v Todd [1976] Qd R 21; Deffley [1972] Crim LR 123; R v Vachalec [1981] 1 NSWLR 351, 353; Everett (1994) 73 A Crim R 550, 564 - 565 (Ipp J); Vasich v The Queen (Unreported, WASCA, Library No 980038, 6 February 1998); and Houghton v The State of Western Australia [2006] WASCA 143; (2006) 32 WAR 260, [23] - [38]. Consequently, when additional hardship arises as a result of membership of an ethnic or other group, this will be a relevant consideration. In Neal v The Queen [1982] HCA 55; (1982) 149 CLR 305, 326, Brennan J said:

The same sentencing principles are to be applied, of course, in every case, irrespective of the identity of a particular offender or his membership of an ethnic or other group. But in imposing sentences courts are bound to take into account, in accordance with those principles, all material facts including those facts which exist only by reason of the offender's membership of an ethnic or other group. So much is essential to the even administration of criminal justice.

45 This principle has been applied or endorsed on a number of occasions, in the context of sentencing Aboriginal persons: see, for example, Rogers (1989) 44 A Crim R 301, 306 - 307; Juli (1990) 50 A Crim R 31, 37 (Malcolm CJ) and 40 (Pidgeon J); Everett, (566) (Ipp J); R v Woodley (Unreported, WASCA, Library No 940708, 16 December 1994); R v Brand (Unreported, WASCA, Library No 980590, 9 October 1998); R v Fernando (1992) 76 A Crim R 58 (Wood J); and Iginiwuni (Unreported, NTSC, No 6 of 1975, 12 March 1975) (Muirhead J).

46 There is no doubt that it is a material sentencing consideration, in the present case, that, if imprisoned, the respondent will serve his term of imprisonment in circumstances in which he is distant from his community, isolated from his culture, unable to be visited by his family and friends and subject to communication problems arising from his difficulties with the English language. However, just as it is important to make allowance for these very real disadvantages, it is at least as important to recognise (as the sentencing judge did) that women in remote communities require no less protection from sexual offenders than any other women. If sentences imposed in cases of sexual violence are unduly lenient, they will do little to protect those women.

47 It is also important to bear in mind the objective seriousness of the offence and the importance of ensuring that, after due allowance has been made for subjective factors, the punishment should fit the crime. That is to say, allowance for subjective factors, weighty though they may be, should not be so great as to result in a penalty that undervalues the offence for which the offender comes to be sentenced and the need for personal and general deterrence.

48 In my respectful opinion, the understandable frustration felt by the sentencing judge in this case, and her equally understandable concern regarding the disadvantaged position of the respondent, led her into error in imposing a punishment that did not fit the crime or satisfy the needs of personal and general deterrence.

49 Ordinarily, an offence of this kind, where there is no plea of guilty or other exceptional circumstance, can be expected to result in a term of around 5 or 6 years' imprisonment, after allowing for the operation of the transitional provisions: Podirsky (1989) 43 A Crim R 404, 411 (Malcolm CJ); R v Quartermaine [2000] WASCA 341 [16] (Wheeler J, Kennedy & Wallwork JJ agreeing); Ugle v The State of Western Australia [2007] WASCA 199 [40] (Owen JA, Wheeler & Miller JJA agreeing). Apart from the factors that will make imprisonment harder for this respondent than for other prisoners, there is, in my respectful opinion, nothing exceptional about this case. Although relatively young, the respondent was not so young as to warrant any amelioration in sentence on that account. The sexual assault involved physical violence in the sense that the respondent forced the complainant to the ground and penetrated her despite her protests and attempts to push him away. Moreover, the respondent had had some time to think about what he was doing, having deceived the complainant into accompanying him in his car while he drove to the secluded area. Still further, the offence was exacerbated by the fact that the complainant was related to the respondent.

50 I am, with respect, unable to accept that the respondent had shown 'extreme remorse'. While he eventually admitted to what he had done and expressed remorse in respect of it, he did so only after being convicted by a jury. Also, although I accept that the fact that the complainant did not sustain physical injuries is relevant, I doubt that the respondent can be given much credit for this. Because he was much larger and stronger than his 45-year-old victim, there was no need for him to use any more physical force than he did. Finally, I agree with the appellant that the absence of a meaningful psychological report prepared with the assistance of an interpreter is not a mitigating factor. As I read the sentencing remarks of the sentencing judge, she did not regard it as being so. She merely expressed her frustration at the fact that the psychological report had been prepared without the assistance of an interpreter and was consequently of little assistance to her.

51 Given the serious nature of the offence committed by the respondent, and the absence of any significant mitigation, it seemed to me that, even applying the well-known principles applicable to State appeals, this appeal must succeed and a term of immediate imprisonment should be imposed in lieu of the suspended sentence imposed by the sentencing judge. Taking into account the undoubted additional hardship that will be experienced by this offender, I considered that the appropriate term was one of 3 years' imprisonment. That term takes account of the principles applicable to State appeals, the time already spent in prison by the respondent and also the fact that he has suffered a substantial curtailment of his freedom of movement as a result of the orders made by the sentencing judge on 11 October 2007 (a fact of which account may be taken under s 41(4)(a) of the Criminal Appeals Act). As I have said, the term of 3 years' imprisonment is substantially less than that which an offender committing an offence of this kind could otherwise expect to have received. The appellant did not contend that, in the present circumstances, any longer term should be imposed.

52 It was for these reasons that I joined in the decision to allow the appeal, set aside the decision of the sentencing judge and impose, in lieu,

a sentence of 3 years' imprisonment to be served immediately, with eligibility for parole.

53 Before leaving this appeal, I should add that, if the sentencing judge was right in her conclusion concerning the unavailability of a sex offender treatment programme for this respondent in a custodial setting (there was no direct evidence of this), it seemed to me that this should not affect the sentence imposed. There is no programme of that kind available in his community either. As I have said, all that is available to him in Wanun is monthly counselling by his supervising case manager. Counselling of that kind will presumably be available to him once he is released on parole. That said, it seems to me to be a matter of some importance that the respondent should be given the same opportunities for treatment in prison as are afforded to persons not suffering from his disadvantages. If those opportunities are not presently available because of the absence of an interpreter, then arrangements should be made to provide one for the duration of the appropriate treatment programme.

56 MILLER JA: At the hearing of this appeal, I joined in the decision to allow the appeal, set aside the sentence imposed by the trial judge and in lieu thereof impose a sentence of 3 years' immediate imprisonment.

57 I have had the opportunity of reading in draft the reasons for judgment of Steytler P. I agree with those reasons to the extent that they deal with the sentencing judge's error in imposing punishment that did not fit the crime or satisfy the needs of personal and general deterrence. In the circumstances of the case, I consider that an appropriate sentence for the criminality of the respondent's conduct was 3 years' immediate imprisonment and I was prepared to join in the decision of the court to impose that sentence irrespective of the resolution of the preliminary issue identified by Steytler P in his reasons at [25].

58 Steytler P has referred in his reasons to my judgment in The State of Western Australia v Wallam [2008] WASCA 117 and, in particular, to my conclusion at [65] that s 41(4)(b), when introduced into the Criminal Appeals Act 2004 (WA), did not affect any right which the law had defined for the respondent by reference to past events. I concluded that it did not impair any existing substantive right.

In my opinion, there was no such right. There was a body of law which called for restraint on the part of appellate courts in dealing with Crown appeals against sentence and, to that extent, the respondent was entitled to believe that ordinarily, on the hearing of the appeal which had been commenced by the appellant, he would be in a better position than would the Crown as respondent to an appellant's appeal. The reasons for this are contained within Kirby J's judgment in Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321 (at 62). [63]

60 I am still of the opinion that s 41(4)(b), when introduced into the Criminal Appeals Act with effect from 27 April 2008, did not impair any existing substantive right, but abolished an advantage which the respondent may have enjoyed prior to 27 April 2008, but which he no longer did [65]. In my opinion, the section therefore operated retrospectively.

61 I agree with Steytler P that, because of the undoubted additional hardship which the respondent will experience by reason of the sentence of suspended imprisonment being quashed and a sentence of immediate imprisonment being imposed, the term of 3 years is an appropriate sentence. It takes account of the fact that the respondent had already spent some time in prison and has suffered a substantial curtailment of his freedom of movement as a result of the orders made by the sentencing judge on 11 October 2007 [51].