TULLOCK -v- THE STATE OF WESTERN AUSTRALIA [2022] WASCA 11 (11 February 2022)

4 On 20 May 2021, the appellant was sentenced to 7 years 8 months' imprisonment with eligibility for parole. The sentence was backdated to commence on 19 March 2021.

5 The appellant, who was self‑represented in this appeal, seeks leave to appeal in respect of two grounds. The grounds are as follows:

1. The sentence was wrongly and unfairly given and manifestly excessive.

2. Elements of the charge were not proven beyond reasonable doubt, yet I was sentenced to the facts.

6 Ground 1 is clear enough and will be dealt with below. Ground 2 can be disposed of immediately. In substance, it seeks to impugn the conviction on the basis that the verdict of guilty was unreasonable and cannot be supported by the evidence. The appellant has sought leave to appeal against conviction on this basis. That application was heard by three judges shortly before the application for leave to appeal against sentence. Judgment in respect of that application has been reserved. Plainly, ground 2 is not a proper ground of appeal against sentence and must be dismissed.

7 As found by the sentencing judge, the facts of the offending are as follows. On 6 January 2020, K, who was at the time 15 years old, was in the Perth CBD with her mother. She was significantly intoxicated after consuming, earlier in the day, a substantial amount of cask wine with her mother. The appellant, who was not previously known to K, met her in the city. By this time, K's mother had gone home. The appellant gave K some sips from an alcopop drink which he had purchased. He then told K that he could provide her with more alcohol which he had left at a public carpark on Stirling Street, Perth. He suggested that they walk there together. K agreed to do so. At this point, it would have been obvious to the appellant that K was intoxicated.

8 In a stairwell in the carpark, K was too drunk to speak, leaning against a wall and trying to stay awake. The appellant left K in the carpark a few times, saying he was looking for smokes.

9 Just before 6.10 pm, the appellant grabbed K's forearm and, in the process, bruised it. He then pulled down her pants and penetrated K's vagina with his penis, without a condom. He ejaculated inside her. During the act of sexual intercourse K passed out. The appellant poured water on K's face, after which she regained consciousness. Expert evidence led at the appellant's trial revealed that, at the time of the offence, K's blood alcohol level would have been close to 0.18%. The appellant may have been intoxicated by methylamphetamine and alcohol, but not to a significant degree.

10 The sentencing judge found that while the appellant's meeting with K was opportunistic, his conduct had a 'somewhat predatory' aspect to it. He was, at the time, 45 years of age and much older than K. K was vulnerable by reason of her age and significant level of intoxication. Her Honour found that the appellant took K to a secluded location which she described as a 'dirty stairwell in a public carpark', under the pretext of providing an already drunk K with more alcohol. Her Honour said that the appellant used some degree of physical force on K, which left her with bruising on her forearm.

11 The appellant was born in the north‑west of Western Australia. He has four children. He left school after completing year 7. As I will outline below, the appellant has spent a significant period of his adult life in custody. As a result, he has a limited employment history. The appellant told the author of the pre‑sentence report that he has not been diagnosed with any mental health conditions or disorders, but, in the period on remand before being sentenced, he was prescribed medication to assist with depressive‑like symptoms.

12 The appellant has an entrenched and extensive history of illicit substance use. During the trial, the appellant testified that he had been using methylamphetamine and heroin for 15 years. He told the author of the pre‑sentence report that he started using alcohol and cannabis in his early teenage years. The pre‑sentence report author observed that the appellant appeared ambivalent about the need to deal with his substance abuse.

13 The appellant has a very long and serious criminal history as an adult, beginning in 1993. In that year, he was sentenced to terms of imprisonment in the Port Hedland Court of Petty Sessions for offences including burglary, assault occasioning bodily harm and common assault. Later that year, he was sentenced in the District Court at Port Hedland to a total effective sentence of 4 years' imprisonment for offences of attempted armed robbery and threat to kill/injure another. In 1995, he was sentenced in the District Court at Geraldton to 2 years' imprisonment for stealing with violence.

14 In November 1997, he was sentenced in the District Court at Perth to a total effective sentence of 4 years 6 months' imprisonment for offences of aggravated indecent assault, deprivation of liberty and assault occasioning bodily harm. The circumstances of the aggravated indecent assault involved the appellant picking up a female backpacker in Leederville for the purpose of having sex with her. He pulled the victim into his car when she refused. He touched her breasts and inflicted further violence. The appellant was convicted after trial and did not accept his guilt.

15 In 2002, the appellant was sentenced to 9 years' imprisonment for stealing with violence and bodily harm. In 2009, he was sentenced to 5 years' imprisonment for stealing a motor vehicle, aggravated burglary and creating a false belief.

16 Between 2014 and 2016, the appellant was fined and sentenced to short terms of imprisonment for various offences including traffic offences, breaching bail, drug offences, stealing motor vehicles and an aggravated burglary. In 2018, the appellant was sentenced in the District Court at Perth to 2 years' imprisonment for an aggravated burglary. Between 2018 and 2020, the appellant committed numerous offences including traffic offences, fraud, possession of stolen property, breaches of protective bail conditions and family violence restraining orders and stealing motor vehicles. On 29 September 2020, he was sentenced in the Magistrates Court to a term of 6 months and 1 day's imprisonment.

17 K provided the sentencing judge with a victim impact statement. In it, she said that before the offending she was happy, got along with her foster carers and her biological family, had a big group of friends and was physically healthy and felt mentally well. As a result of the offence, she has become angry and this has badly affected her relationships. She feels sad all the time and is on antidepressants. She has lost trust in people. Because she has a fear of needles, she has not been tested for disease following the offence. She is very scared that she 'might have something from him'.

18 As stated, the appellant was acquitted of count 1. In respect of this, her Honour noted in her sentencing remarks that K gave evidence that the appellant stuck a needle into her left hand whilst she was unable to respond, before penetrating her. Toxicological results tendered as part of the State's case showed the presence of benzodiazepines and cannabis in her urine. Expert evidence led at trial by the State was to the effect that benzodiazepines and cannabis remain at detectable levels for up to three days. Her Honour also noted that unchallenged evidence was given at trial from a witness who said that, at about 7.00 pm on 6 January 2020, she saw a mark which looked like a puncture mark on K's left hand. A doctor also observed a brown bruise adjacent to the fourth and fifth fingers on the left hand.

19 After considering all of the relevant evidence, her Honour said there were 'too many variables as to how the jury may have come to its verdict in respect of count 1'. She said that she 'put to one side the allegation that [the appellant] injected [K] to the left hand with a syringe'.

20 After describing the serious features of the offending and the appellant's personal circumstances, her Honour turned to the appellant's criminal history. She found that it underscored the need to give significant weight to the sentencing objectives of punishment, protection of the public and personal and general deterrence. As to mitigating circumstances, her Honour expressly found that there were none. She observed that the mitigation that would have been derived from a plea of guilty was absent. The appellant demonstrated no victim empathy and had no remorse.

21 Her Honour then imposed the sentence referred to above.

22 The appellant's sparse written submissions were supplemented by his oral submissions. Some of his oral submissions went beyond the ground of appeal, but will, out of fairness, be dealt with. In substance, the appellant made four submissions. First, despite her Honour stating in the sentencing remarks that she made no finding that the appellant injected K with benzodiazepines, the appellant asserts that she, in fact, took this into account against him. Second, the appellant asserts that her Honour erroneously found that K was unconscious when he committed the offence. Third, her Honour erred in finding that the offence occurred as described by K. In effect, the appellant disputed the veracity of K's account of the offence. Fourth, the sentence that was imposed was too much, having regard to comparable cases decided by this court.

23 The legal principles applicable to ground 1 are well established. They were recently restated by this court in Kabambi v The State of Western Australia and include:[1]

The general principles governing appeals contending that error should be inferred on the basis that an individual sentence is manifestly excessive or inadequate, or that a total effective sentence infringes the totality principle, are well established:[2]

(1) Sentencing is a discretionary exercise. An appellate court can intervene only if the appellant demonstrates either an express or implied material error. Express error involves acting on a wrong principle, for example by mistaking the law or facts or taking into account an irrelevant matter. Implied error arises where the end result is so unreasonable or unjust that the court must conclude that a substantial wrong has occurred. Thus, an appellate court cannot substitute its own opinion for that of the sentencing court merely because the appellate court would have exercised a sentencing discretion differently.

(2) In order to determine whether a sentence for an individual offence is manifestly excessive or inadequate, the offence should be viewed in light of the maximum sentence prescribed by law for the crime, the standards of sentencing customarily imposed with respect to it, the place that the criminal conduct occupies in the scale of seriousness of crimes of that type, and the offender's personal circumstances.

...

(4) The range of sentences customarily imposed for a crime does not establish the range of a sound exercise of the sentencing discretion. Sentences customarily imposed in comparable cases provide a yardstick or reference point for ensuring broad consistency in sentencing, bearing in mind the scope for significant variations in relevant sentencing factors, and that there is no single correct sentence. What is important is the unifying principles which sentences imposed in comparable cases reveal and reflect.

(5) When this court dismisses an appeal against sentence and when it resentences on a successful appeal, its decision does not fix the upper or lower limit of the range.

24 There is no merit in the appellant's first submission. Her Honour expressly said that she put to one side the allegation that was at the core of count 1. A reading of the sentencing remarks provides no support whatever to the submission. The appellant observed that her Honour 'spent half an hour or five paragraphs' on the topic which, he said, showed that she took into account the alleged circumstances of count 1. Although it hardly needs to be said, this reasoning is fallacious. Her Honour did no more than carefully deal with the effect of the appellant's acquittal on count 1. The care and attention she gave the point in no way undermines her conclusion.

25 As to the appellant's second submission, her Honour did not err in finding that K was unconscious during the act of penetration. The finding was completely consistent with the evidence and the jury's verdict.

26 The third submission, in effect, seeks to impugn the verdict. As I have already explained, this is not a proper basis upon which to challenge the sentence. Her Honour was obliged to sentence the appellant consistently with the verdict, regardless of the appellant's view of its correctness.

28 The maximum penalty for an offence contrary to s 326 of the Code is 20 years' imprisonment.

29 I will not repeat the facts and circumstances of the offence. It was indisputably a very serious example of its type. The offence involved a high degree of criminality. The appellant enticed K to an isolated location with the promise of more alcohol. Her state of intoxication was such that she could, in no way, protect herself. The appellant took sexual advantage of a child who was vulnerable by reason of her age and her state of intoxication. K plainly did not consent and was, at one point, unconscious. The appellant engaged in sexual intercourse with K that culminated in his ejaculation inside her. He did not wear a condom. His actions exposed her to the risk of pregnancy and disease. At the time of the offence, he had a positive hepatitis C status. The offence was accompanied by a degree of force which left K bruised. Having regard to the victim impact statement, the offences have had a serious and ongoing adverse effect upon her.

30 Her Honour was correct to find that there were no mitigating factors in the case. There was no evidence before the court of a deprived background. The appellant did not have the advantage of youth or a plea of guilty. He had no insight into what he had done and was not remorseful. His longstanding drug and alcohol problems which appeared to fuel his offending remain unaddressed, and the appellant does not appear willing or able to address them. He has a long, extensive and serious criminal history which shows a complete disregard for the law. The appellant poses a risk of further serious offending. While his prior criminal record is not an aggravating factor, her Honour was entitled, as she did, to regard the record as underscoring the need to impose a sentence which, among other things, emphasised the sentencing objectives of punishment, personal and general deterrence and the protection of the public. Unfortunately, the appellant's prospects of rehabilitation, at this point, do not appear strong.

31 As for the comparable cases, I have had regard to the outcome in Thong v The State of Western Australia and the analysis of the cases cited therein.[3] It is unnecessary to set out the facts and circumstances of Thong or of the cited cases. While there is no tariff for offences of the kind committed by the appellant, it has been said that, where there has been no plea of guilty, such offences may be expected to result in a term of around 5 or 6 years' imprisonment. As stated in Thong:[4]

It is important to emphasise that this does not mean that a sentence outside that range is manifestly excessive (or inadequate). The circumstances of offending vary widely. Sentences well beyond that range may be justified by the circumstances of the case.

32 The sentence imposed upon the appellant was, in comparison with other cases, substantial. However, it was, as I have said, a very serious example of its type. There were no mitigating circumstances. I do not regard the sentence as falling outside the limits of a proper exercise of the sentencing discretion.

33 Having regard to all of the particular circumstances of this case, I have concluded that it is not reasonably arguable that the sentence imposed upon the appellant was manifestly excessive. In my opinion, the sentence imposed was, in all of the circumstances, an appropriate exercise of the discretion reposed upon her Honour. The appeal must be dismissed.

(1) Leave to appeal is refused.

(2) The appeal is dismissed.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.

Research Associate to the Honourable Justice Murphy and the Honourable Justice Mazza

[1] Kabambi v The State of Western Australia [2019] WASCA 44 [21].

[2] The following statement of the general principles is taken from the judgments of the court in Salkilld v The State of Western Australia [2017] WASCA 168 [48] and in Trajkoski v The State of Western Australia [2018] WASCA 176 [30].

[3] Thong v The State of Western Australia [2020] WASCA 182 [220] ‑ [222].