Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA

Criminal law and procedure - Appeal - Application for leave to appeal against sentence - Offences of sexual relationship with child, burglary, assault occasioning bodily harm and threatening to kill - Aggregate sentence of 6­1/2 years' imprisonment - Applicant eligible for parole - Applicant self­represented on appeal - Totality principle - Whether appropriate discount for pleas of guilty - Whether sentence should have been discounted by reason of effect of applicant's depression and medications

Attorney General's Reference under s 693A of the Criminal Code [2002] WASCA 242; (2002) 26 WAR 197

Dempsey v The Queen, unreported; CCA SCt of WA; Library No 960059; 9 February 1996

Little v The Queen [2001] WASCA 87

Magee v The Queen [1980] WAR 117

Miles v The Queen (1997) 17 WAR 518

Mill v The Queen (1988) 166 CLR 59

Orchard v The Queen [2004] WASCA 23

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

R v Atholwood (1999) 109 A Crim R 465

R v GP (1997) 18 WAR 196

R v Paparone [2000] WASCA 127; (2000) 112 A Crim R 190

R v Ward [1999] WASCA 157; (1999) 109 A Crim R 159

R v Westall, unreported; CCA SCt of WA; Library No 980287; 27 May 1998

Verschuren v The Queen (1996) 17 WAR 467

D v The Queen [2003] WASCA 33

Kilner v The Queen [1999] WASCA 189

Markarian v The Queen [2005] HCA 25; (2005) 79 ALJR 1048

R v Bradley [1979] NZCA 33; [1979] 2 NZLR 262

R v Strickland [1989] 3 NZLR 47

Worthington v Western Australia [2005] WASCA 72; (2005) 152 A Crim R 585

1 ROBERTS-SMITH JA: This is an application for leave to appeal against sentence imposed upon the applicant by Blaxell DCJ (as his Honour then was) in the District Court at Perth on 7 January 2005.

2 The applicant pleaded guilty to five counts on an indictment dated 7 January 2005. The offences were:

Between 1 October 2003 and 7 March 2004, having a sexual relationship with a child under the age of 16 years, contrary to s 321A(3) of the Criminal Code (WA) ("Code");

Burglary on 27 December 2003 of a place used for human habitation (contrary to s 401(2) Code);

On 24 June 2004, unlawful assault causing bodily harm (contrary to s 317(1) Code);

On 24 June 2004, making a threat to unlawfully kill (contrary to s 338B of the Code), and

Burglary on the same date (contrary to s 401(2) of the Code - although incorrectly noted in the marginal note on the indictment as being contrary to s 326 of the Code).

3 His Honour sentenced the applicant to 3 years' imprisonment on count 1; 18 months' imprisonment on count 2; 2 years' imprisonment on count 3; 18 months' imprisonment on count 4 and 2 years' imprisonment on count 5. He ordered the sentences on counts 3, 4 and 5 to be served concurrently with each other, but that the other sentences should be served cumulatively, producing an aggregate sentence of 61/2 years' imprisonment. He ordered the applicant be eligible for parole.

4 The application for leave to appeal was filed on 27 January 2005. There is one ground of appeal. It is that his Honour:

"... erred in the exercise of his sentencing discretion in that he failed to have sufficient regard to the standards of sentencing usually observed with regard to offences of this nature, the circumstances of my offending behaviour and my antecedents and imposed sentences which were too severe in all the circumstances relevant to my offending."

5 The applicant was represented by counsel before the sentencing Judge but is now self-represented. The matters he wished to put before the Court were comprehensively set out in his outline of submissions and amplified by him in his oral submissions. He attached to his written submissions copies of what appeared to be notes and copy correspondence from the files of a medical practice, concerning the sequelae of injuries suffered by him in two car accidents, and various medications prescribed for him. These had not been before the sentencing Judge, but as the respondent had no objection, we received that material on the appeal pursuant to s 40(1)(e) of the Criminal Appeals Act 2004 (WA).

6 The following points may be distilled from the ground of appeal and the applicant's submissions:

(1) The aggregate sentence was so excessive so as to demonstrate error in the application of the totality principle;

(2) The sentencing Judge erred in making insufficient allowance in mitigation for the applicant's early pleas of guilty (the outline of submissions also refers to pleas to other offences by way of a s 32 notice, but no such procedure was utilised in this case);

(3) The sentences should be reduced because the applicant's criminal culpability was reduced by reason of the effect upon his mental faculties, of depression and the effect of his prescribed medications.

7 The following summary of facts is from the sentencing remarks made by his Honour.

8 The offences fall into three separate groups. The facts in relation to count 1 were that they occurred between October 2003 and March 2004, while he was aged between 29 and 30 years and the complainant was 14 years old.

9 The applicant and complainant met in October 2003 and became friends. The relationship developed into a sexual relationship. Sometime in October 2003 when the complainant and the applicant were at the latter's house sitting on his lounge, he pulled his shorts down and began masturbating himself in front of her. He suggested to the complainant that she perform oral sex on him. She did so. Sometime shortly afterwards she was again at his house and in his bedroom lying on his bed. She performed oral sex on him. Prior to the applicant ejaculating, the complainant heard a noise outside. The applicant said it was his sister coming home and told the complainant to go out the side door of the house and meet him at an arranged location nearby. They later met there but did not continue any sexual act.

10 On 10 December 2003 the applicant and complainant met again. The applicant drove her to a vacant area of land behind a market garden. There, he engaged in sexual intercourse with her. He stood behind her in a sandy ditch out of the view of the public. He withdrew his penis from her prior to ejaculation and ejaculated on the ground.

11 Sometime after this the applicant rang the complainant on her mobile phone. He suggested they meet up in an area of vacant land. They did so and he told her to bend over. When she did that, he engaged in sexual intercourse with her whilst they were both standing. Again he withdrew prior to ejaculation and ejaculated on the ground.

12 Sometime after 25 December 2003 and prior to early February 2004, the complainant was again in the applicant's bedroom. She gave him a massage while he was lying on his bed. He then turned over and the complainant licked his penis. She then engaged in sexual intercourse with him whilst he lay on his back.

13 Sometime on a Saturday in early February 2004, the complainant received a message from the applicant to go to his house about 9 am. She went there and they had sexual intercourse.

14 On Saturday 14 February 2004 the complainant again received a phone call from the applicant asking her to go to his house. She went there and found him in the rear yard where he was sitting with friends. Shortly afterwards he asked her to go with him into his bedroom. She did. The applicant began kissing her on the neck and asked her to have sex with him but on that occasion she refused. He gave her a large envelope with a Valentine's day card inside. The two of them then left the bedroom. However, they returned shortly afterwards and engaged in sexual intercourse on the applicant's bed. The applicant withdrew prior to ejaculation and ejaculated onto the bed.

15 Sometime late in February 2004 the complainant went to the applicant's house. The two of them then drove to the car park of some netball courts where they had sexual intercourse with the applicant standing behind the complainant. Again he withdrew prior to ejaculation. Sometime late in February 2004 the complainant went to the applicant's house after school. He drove her to one of his friend's houses nearby and then took her to the same vacant area of land behind the market garden to which he had previously taken her. He asked her for sex but she refused. He told her to pull down her shorts and bend over. When she did so he masturbated himself and ejaculated on the grass.

16 Another time in late February 2004 the two of them went to the same area and again had sexual intercourse with the applicant standing behind the complainant.

17 On 7 March 2004 the applicant telephoned the complainant and told her to come to his house. She went to his new home and then walked to the house in which he had previously lived and out of which he had just moved. On the way the applicant gave the complainant his gym membership card and told her to keep it as it had six months' membership left on it.

18 The applicant, his cousin and the complainant arrived at the house and were talking and jumping on the trampoline in the rear yard. The applicant then led the complainant to the rear of the house and told his cousin to go out the front. The applicant and complainant had sexual intercourse while standing, again with the applicant behind the complainant. Again he withdrew prior to ejaculation and ejaculated onto the ground and onto her shorts.

19 There was a disagreement between the two of them in relation to some money that the applicant claimed the complainant owed him. They have had no sexual contact since then.

20 On Friday 7 May 2004, police went to the applicant's home and he was taken to the police station where he took part in a video record of interview but made no admissions.

21 In relation to count 2, the applicant went to a suburban house which he entered by smashing the bathroom window. Once inside he stole some sporting and electrical equipment, clothing, computer equipment, luggage, tools, power tools and after shave. During the burglary he caused approximately $590 damage to the house. He stole $36,810 worth of items from the house. He used his station wagon to remove them.

22 When police executed a search warrant on his premises on 2 June 2004, they located a men's Seiko watch and a video recorder and remote control believed to have been stolen during the burglary. No other property was recovered. He was arrested and taken to the police station where he took part in a video record of interview. He said he had no knowledge of the burglary and that the watch and the VCR were in his car when he purchased it sometime before Christmas 2003.

23 The offences in counts 3, 4 and 5 arose out of the same circumstances. The complainant on those counts was previously in a de facto relationship with the applicant, with whom she had a 2-year-old son.

24 About 8 pm on 24 June 2004 the complainant was at her home when she heard a knock on the door. She was expecting a friend and so opened the door to let her in. On opening the door she did not see anyone. The applicant then looked around the frame, surprising her. He knew he was not welcome at the home. At that time the friend arrived and began walking to the door. The complainant allowed the friend to enter and as she did so, the applicant pushed his way past her into the house. The complainant screamed at the applicant to get out but he did not. Fearing for her safety she reached for a pepper spray which she kept in her bag for protection, and sprayed him. He was irate and retaliated immediately by grabbing her by the throat and forcing her against the wall. Still holding her throat, the applicant forced the complainant to the ground. He strangled her by the throat with one hand and struck her about the head with the other. The complainant's friend attempted to pull the applicant from the complainant, but without success. He used such force to strangle her that she could not breathe and did in fact lapse into unconsciousness for a moment.

25 Whilst strangling the complainant, the applicant repeatedly shouted "I'm going to kill you". The complainant was in fear of her life and believed that he intended to carry out his threat. She regained consciousness and heard their 2-year-old son calling her. The child was standing nearby and was distraught. On seeing the child, the applicant let go of the complainant's throat and said "Your son just saved your life".

26 The child walked past the applicant and the complainant into the lounge where he was comforted by the friend. The complainant told the friend to call the police. The applicant heard this, and again raised his fist to strike the complainant. He warned the friend not to call the police and told her to get out of the house. She left immediately and called police from her mobile phone.

27 The complainant, still in fear for her life, tried to calm the applicant by suggesting they put the child back to bed together. The applicant appeared to be calmed and he and the complainant attended to the child. Whilst putting the child to bed however, the applicant said "I'm going to kill your mother". The child became distressed and would not go to bed. The applicant threatened the complainant saying "I'm going to fucking knock you out if the police come here".

28 The complainant again tried to calm the applicant. As police were heard to arrive at the front of the house she told him to go over the back fence. She just wanted him out of the house. He ran into the backyard and climbed the rear fence to evade arrest.

29 During the course of the later part of this incident he picked up the complainant's mobile phone valued at approximately $600. Immediately after the incident the complainant noticed the phone was missing. The complainant later received a phone call from the applicant in which he said that he had thrown the phone in the backyard when he escaped. However, the phone could not be located.

30 The complainant suffered soft tissue injury to her neck, bruising, soreness and abrasions as a result of the assault and required medical attention.

31 In his sentencing remarks, after having given a brief summary of these events, his Honour turned to the applicant's personal antecedents and circumstances.

32 He noted the applicant was 30 years of age, single and unemployed. He observed that the applicant had a significant past record including numerous offences of dishonesty and some significant offences involving violence, but no prior offences of a sexual nature. He has served terms of imprisonment in the past.

33 His Honour referred to the pre-sentence report and a psychological assessment which fully set out the applicant's family history and background.

34 Other matters mentioned by his Honour were that the applicant had a disrupted childhood as a result of the separation of his parents. He reached Year 11 at secondary school but was then expelled for fighting. He then had various types of employment, such as labouring, demolition work and panel beating. However, in 2001 he suffered some significant injuries in two motor vehicle accidents and as a result he was after that in receipt of a disability support pension.

35 His Honour noted that the injuries that the applicant received in those accidents also put an end to a potential career that he was hoping to have in boxing. He referred to the applicant having a substance abuse problem from a young age, starting with alcohol and cannabis and that he developed a very heavy habit with amphetamines, although he claimed to have been drug-free since May 2003. His Honour said the psychological assessment indicated that he had quite limited self-esteem and that had become more pronounced as a result of ceasing his involvement in boxing.

36 His Honour said that although there was no evidence of major psychopathology, the applicant may be subject to post-traumatic stress disorder as a result of some of his life experiences. He also noted that the applicant tended to minimise his offending behaviour and that he had been described as having a clinical attitude towards the victim of the sexual offence and that it would seem that he was not motivated to engage in appropriate treatment - although that was no doubt a matter he would be in a position to reconsider. He noted further that the applicant had been assessed as being at a "medium-high" risk of reoffending.

37 Moving then to the offences themselves, his Honour pointed out that they were each very serious and that given their diverse nature and his past record, it was inevitable that the applicant must receive substantial terms of immediate imprisonment.

38 With respect to count 1 his Honour said it was significant that the complainant, as a 14-year-old girl, was an easy target and the applicant had exploited her for his own gratification. The disparity in their ages was an aggravating factor. He also considered it significant in the particular manner in which the applicant went about his sexual relations with her, summoning the complainant to him by mobile phone and very often having sexual intercourse from behind, in ditches and on vacant blocks and the like. The general tenor of his conduct was that he treated the complainant as an object for his sexual gratification. It was therefore not surprising that the complainant had been psychologically traumatised by the experience. In that respect his Honour noted the victim impact statement from the complainant, which indicated that her schooling had suffered, that she had trouble explaining to her parents what had happened and there had been instances of her being suicidal and inflicting self-harm.

39 As to the burglary, his Honour said that was a serious example of home burglary involving the theft of more than $36,000 worth of household goods.

40 In relation to the remaining offences, his Honour said that although the applicant was provoked and his behaviour to some extent precipitated by the complainant's use of pepper spray, his response was a very vicious attack and he was very fortunate not to be facing a much more serious charge. It was an aggravating factor that he had assaulted the complainant and strangled her in front of their 2-year-old son. That would have been a very traumatising experience for a young toddler to have to endure.

41 His Honour then imposed the sentences to which I have referred.

42 In his submissions, the applicant sought to portray the factual circumstances somewhat differently from the way in which they had been put to his Honour and accepted by the applicant's then counsel. In his submissions to this Court the applicant said that he had met the first complainant in a local gym in October 2003 and they had an ongoing sexual relationship until 7 March 2004. While driving his car she had an accident with a parked vehicle, causing over $1000 worth of damage, which he said in turn caused her to tell her mother about their relationship. He said the mother called the police who went around to his girlfriend's house (I take that to be a reference to his former de facto) looking for him. She asked him about the accusations and he says he told her the truth about his relationship with the first complainant.

44 He said his girlfriend (de facto) was extremely jealous and when he went to her house she opened the door and sprayed him with pepper spray. It was then, he said, that he threatened her, grabbed a mobile phone which was his own but in which she had put her own SIM-card, and left.

45 The facts recited by the State Prosecutor were apparently taken from the statement of material facts - although in accordance with the usual practice, she had also formally tendered the papers comprising the prosecution brief and a copy of the applicant's video record of interview with police and said she incorporated the contents of those into the State's statement of material facts.

46 At the conclusion of the State prosecutor's recitation of the facts, counsel for the applicant said (t/s 9 - 10):

"The facts contained in the section 100 statement, the statement of material facts which was served upon Mr Tyler, contains [sic] material that he accepts and that is what my learned friend has just read. To a degree, perhaps a significant degree, the material that has been provided by way of the victim impact statement, the statement of the complainant and the statement [sic: of] the counsellor are at odds with that statement of material facts"

"Well, he will be sentenced on the basis of the statement of material facts."

48 It is, accordingly, not open now, for the applicant to seek to have this Court approach the matter on any factual basis other than that which was accepted by the sentencing Judge in that way.

49 In counsel's plea in mitigation for the applicant, he dealt first with count 2, the burglary. He told his Honour that at the time the applicant was using amphetamines. He had read in the press that the particular house was the home of a drug dealer and he believed the drug dealer would not be at home and he went there to get drugs. As it turned out the applicant could not get any drugs but took a quantity of property. He said the applicant had no idea of the value of the property although he conceded it was substantial and he had indicated that he could speak with the arresting officers about where some of the property might be.

50 As to counts 3 to 5 inclusive, the applicant had been in a relationship with the complainant. He had been there the previous night baby-sitting and went back the following day. He was affected by amphetamines and an argument erupted. He was sprayed with pepper spray and "just lost it". Counsel said that applicant regretted behaving in that way to the complainant. Counsel produced to his Honour an application by the complainant to cancel a restraining order made against the applicant. That had yet to be heard but the grounds for the application were given that the applicant was now in prison and not on drugs and so the complainant's safety and that of her child was no longer a concern. The child had been asking for his father continually and the complainant was hoping that the child and the applicant would not lose contact altogether as she believed it would not be in the child's best interest. As counsel put it, the relevance of that material was that it bore out that there were difficulties with amphetamines at the time and that the complainant perceived that as having underscored the difficulties on the day. The complainant had in fact been to visit the applicant on occasions. The applicant did not see any possibility that the relationship would be reinstated but was keen to maintain the relationship with his son.

51 Returning to count 1, the sexual relationship count, counsel noted that that complainant turned 14 in June of 2003. The applicant understood her to be 16 years of age, and although that was not a defence in the circumstances, the applicant did not expect to be in any trouble at all as a consequence of the relationship. There was no issue that the applicant was in a position of trust or authority with the complainant and there was, on his instructions, no element of coercive or forceful behaviour. Counsel referred to matters of the sort listed in R v GP (1997) 18 WAR 196.

52 It was submitted that the applicant recognised there are issues in his background to do with substance abuse and that he had offended violently in the past when affected by alcohol and had a problem with his temper when affected by amphetamines.

53 There was a pre-sentence report before his Honour. The Community Corrections officer wrote that in relation to counts 3 to 5, the applicant had claimed that the night prior to the offences he baby-sat his son and the complainant had asked him to care for their child while she went to work the following evening. The applicant admitted using amphetamines on both nights, and became angry the previous evening as the complainant was late home from work. The applicant told the Community Corrections officer that he was capable of significant aggression when under the influence of amphetamines and one condition the complainant made for him to baby-sit the child was that he not be affected by drugs.

54 The applicant told the Community Corrections officer that on the evening of those offences he arrived at the complainant's home and attempted to enter the house but denied pushing past her. He said the complainant tried to close the door but the applicant had his foot in it to keep it open and it was at that point the complainant pepper sprayed him in the face. He said that he was extremely angry about that and it was the reason he assaulted and threatened to kill her. The officer noted that the applicant minimised the seriousness of the assault (contending that the complainant was not unconscious) and also denying that their son called out during the course of it.

55 In relation to the burglary and stealing offences, the Community Corrections officer gained the impression the applicant was seeking to convey that although his car had been used and the stolen property was located at his house, he was accepting guilt for someone else. Later in the interview, the applicant did admit to having committed the burglary.

56 There was reference to the applicant's background and personal circumstances, including two car accidents said to have happened in 2001 (other information before the Court indicates the first accident was in 1997 and the second in 2000, but nothing turns on this discrepancy). I shall refer to these in more detail in the context of the psychological report.

57 So far as the applicant's drug use is concerned, he first consumed alcohol at 7 years of age, having about five cans of beer. He began regular consumption aged about 13 and would drink 750 ml of bourbon on the weekends.

58 He first used cannabis when aged 14 and used it regularly for many years. At 16 years of age he first used amphetamines and continued to do so on a social basis. By 27 years of age he was using amphetamines "full-on, intravenously" for six months.

59 In summary, the Community Corrections officer noted that the applicant minimised elements of his offending behaviour, externalising blame to the two complainants. Substance abuse appeared to be a theme that had weaved through his life and past offending behaviour. He appeared in dire need of addressing his violent behaviour in an attempt to minimise further violent offences. The officer recommended the applicant undertake programmes for that purpose.

60 The psychological report made detailed comment on the applicant's explanation of his sexual relationship, the subject of count 1. In summary, the report noted that he impressed as having very limited insight into his offending and a accepting very little responsibility for his behaviour. He displayed little appreciation of the potential impact of his behaviour on the victim. The author opined that the applicant's treatment needs were deemed to be quite significant.

61 The psychologist noted that the applicant similarly minimised the offences against his ex-partner, portraying his behaviour as defensive in nature. The report noted there were clearly various issues that warranted some sort of intervention in terms of the applicant's broader dealings with women.

62 There was extensive comment about the applicant's personal history, noting in particular his aspirations to be a successful professional boxer. That activity had apparently been the main focus of his adult years. He had boxed professionally, however his aspirations were significantly affected by two accidents involving a car and a motor bike respectively. The initial accident in 1997 prevented him from boxing for three years. According to the applicant, he won his comeback fight and again attracted significant sponsorship. However, when he returned to Western Australia from Queensland, he was involved in another motor vehicle accident that reportedly required him to be cut from the wreckage. The applicant indicated that he had struggled to cope since the accident and described symptoms consistent with post-traumatic stress disorder in relation to intrusive imagery and heightened anxiety. He also experienced some level of depression and general pessimism following the accident.

63 The psychologist commented extensively on the applicant's history of his sexual relationships, concluding there was significant evidence to suggest he had quite limited self-esteem and that appeared to have become more pronounced since he ceased his involvement in boxing.

64 The results of psychological testing indicated the applicant was inclined to minimise his offending behaviour and there was also some level of self-justification and evidence of cognitive distortions. The results indicated that he was not motivated to engage in treatment to address his offending behaviour. On the "Static 99" risk assessment he was placed in the "medium/high risk" category.

65 I turn now to the particular matters raised by the applicant in support of his ground of appeal.

66 When sentencing for a range of discrete offences, it is incumbent upon the court to impose a sentence in respect of each offence which is appropriate for that; the issue of totality of sentence will ordinarily be addressed by the extent to which the individual sentences are made concurrent or cumulative (Pearce v The Queen (1998) 194 CLR 610).

67 The principal is that the totality of the sentences imposed must bear a proper relationship to the overall criminality involved in the various offences being dealt with (Mill v The Queen (1988) 166 CLR 59, 62 - 63).

68 As with the individual sentence for a particular offence, so too the aggregate must not be greater than is required to meet the various purposes of criminal punishment (Magee v The Queen [1980] WAR 117, 119).

69 When considering the overall length of the terms in combination, a court must bear in mind that the severity of a term of imprisonment increases exponentially with its length. This is so whether or not the offences are connected. As Murray J explained in Jarvis v The Queen (1993) 20 WAR 20, 213:

"... where there is a multiplicity of offences and sentences to be passed, the totality of the sentence must be proportionate to the totality of the criminal behaviour involved, whether or not there was any link between the commission of individual offences beyond the identity of the offender and the fact that he must at some time serve the sentence. In that regard, I would with respect expressly concur in the view of Ipp J that the explanation for the fact that to apply the totality principle in such circumstances will generally effect a reduction in the total term, is to be found in the fact that 'the severity of a term of imprisonment increases exponentially as it increases in length'."

70 Cumulative sentences in a particular case may offend the totality principle if the aggregate is substantially above the normal level of a sentence for the most serious of the individual offences involved, or if its effect is to impose on the offender a crushing sentence, not in keeping with his record and prospects (Postiglione v The Queen [1997] HCA 26; (1997) 189 CLR 295, 308, 340).

71 Murray J observed in Jarvis (supra) at 213 that:

"It was Wickham J in Thompson v The Queen, (unreported; CCA WA; 19 March 1973) who first expressed the totality principle in the phrase 'enough is enough' which seems to me to succinctly express the final result to be achieved in terms of proportionality of the aggregate penalty to the total criminality to which it is to be applied. In my opinion there is no other or additional content to the principle, and when, as it is sometimes put, it is expressed in terms that what is to be avoided is the achievement of 'a crushing result', that is simply to refer broadly to one test by which it may be considered whether the aim of proportionality has been achieved or whether undue severity has been employed. What is to be considered is the impact of the total term having regard to the various ways in which it may be thought to have become unduly punitive and positively harmful to the achievement of the proper aims of the imposition of sentence."

72 In his submissions, the applicant contends that while the aggregate sentence imposed upon him may not be viewed as "crushing", the imposition of three consecutive sentences is "certainly" not in keeping with his record and prospects and therefore offends the principles of totality and proportionality.

73 The aggregate term of 6 years 6 months' imprisonment equates to one of 9 years 9 months prior to 31 August 2003, the date upon which Sch 1 to the Sentencing Legislation Amendment & Repeal Act 2003 (WA) came into operation. It is necessary to make that observation for the purpose of comparison with sentences imposed in other cases prior to that date.

74 In this case, there is no tariff for the sexual relationship offence in count 1. The statutory maximum penalty was 20 years' imprisonment (s 321A(3) of the Criminal Code). In assessing the seriousness of this offence, it is necessary to have regard to the most serious individual acts committed by the applicant, as well as the range of conduct the relationship involved (R v Westall, unreported; CCA SCt of WA; Library No 980287; 27 May 1998 at 8). The factors ordinarily to be considered were adumbrated in Dempsey v The Queen, unreported; CCA SCt of WA; Library No 960059; 9 February 1996, 6 - 7. In the present case, the offence involved at least 10 distinct sexual acts, of which nine were acts of sexual penetration; the victim was only 14 years old at the time of the offence; the applicant was more than twice the victim's age; by reason of the applicant's age, it may be inferred the victim was influenced by him; the circumstances in which the sexual acts occurred show the applicant exploited the victim for his own sexual gratification; the offence continued for approximately five months; the applicant made no admissions to police when interviewed; the victim's cooperation in the commission of the offences was secured by friendship and by the offer of some reward; and the victim was traumatised by the offence, subsequently engaging in self-harming behaviour and attempted suicide.

75 Although the burglary offence was not an aggravated burglary (beyond the circumstance that it was of a place used for human habitation), nonetheless the statutory maximum penalty was still 18 years' imprisonment (s 401(2) Code). The prevalence of offences of this kind has been the subject of community concern and has resulted in a "firming up" of sentences (R v Ward [1999] WASCA 157; (1999) 109 A Crim R 159, [5] - [6]). This was a serious offence. The applicant used a station wagon to remove items from the home. The value of the stolen goods was in excess of $36,000 and the applicant caused $590 damage to the home. He had a previous conviction for burglary.

76 The circumstances of counts 3, 4 and 5 require no further elaboration. They were obviously serious offences.

77 In combination, there were three separate sets of offending, each serious. His Honour gave specific consideration to the principle of totality and the need for some accumulation of sentences.

78 In my opinion, the applicant has not demonstrated that the aggregate sentence was disproportionate to the overall criminal culpability revealed by the combination of offences for which he was sentenced.

79 A plea of guilty is a mitigating factor and the earlier in proceedings that it is made, or indication is given that it will be made, the greater the mitigation (s 8(2) Sentencing Act 1995 (WA)).

80 In Verschuren v The Queen (1996) 17 WAR 467, 484, Murray J noted that:

"The making of an early plea of guilty and, I think, also the participation of the offender in the fast-track procedure for expedited committal, is a relevant mitigating factor because and to the extent that it reveals an acceptance of responsibility for the commission of the offence, a desire to bring proceedings to a conclusion as expeditiously as possible, with minimal adverse effect upon the victim of the offence and the publicly funded system of the administration of the criminal law, as well as because it is simply an expression of genuine remorse or contrition. Whether or not genuine contrition may be discerned, the fact that a plea of guilty is made and expeditious procedures to dispose of the case are employed can readily be seen to be a mitigating factor to the credit of the offender. It is a factor personal to the offender and his or her attitude to the process by which he is brought to the point of punishment."

81 Thus, a plea of guilty may derive particular mitigation in a given case because it reflects genuine remorse, but that is not the only potential for mitigation.

82 In Cameron v The Queen (2002) 209 CLR 339, in their joint judgment, Gaudron, Gummow and Callinan JJ noted (at 343) that:

"It is well established that the fact that an accused person has pleaded guilty is a matter properly to be taken into account in mitigation of his or her sentence. In Siganto v The Queen [1998] HCA 74; (1998) 194 CLR 656 at 663-664 [22], per Gleeson CJ, Gummow, Hayne and Callinan JJ it was said:

'A plea of guilty is ordinarily a matter to be taken into account in mitigation; first, because it is usually evidence of some remorse on the part of the offender, and second, on the pragmatic ground that the community is spared the expense of a contested trial. The extent of the mitigation may vary depending on the circumstances of the case.'

It should at once be noted that remorse is not necessarily the only subjective matter revealed by a plea of guilty. The plea may also indicate acceptance of responsibility and a willingness to facilitate the course of justice."

83 In this State it is now well enough established that all other factors having been considered, an appropriate reduction for a plea of guilty on the "fast-track" system is between 20 or 25 per cent to 30 or 35 per cent (Miles v The Queen (1997) 17 WAR 518; Little v The Queen [2001] WASCA 87).

84 Except perhaps in that very rare case where it is made as a tactical ploy to gain a forensic advantage, and where it carries none of the mitigating features to which the authorities refer (Attorney General's Reference under s 693A of the Criminal Code [2002] WASCA 242; (2002) 26 WAR 197), a plea of guilty should attract some discount even when a late plea and not as a result of genuine remorse, because it indicates the offender is willing to assist in the administration of justice (R v Atholwood (1999) 109 A Crim R 465) or at the very least because of the public interest in encouraging pleas of guilty in proper cases.

85 Here the sentencing Judge discounted the sentences he would otherwise have imposed on counts 1, 2 and 4 by 25 per cent, and by 33 per cent from the sentences he would otherwise have imposed on counts 3 and 5, in specific recognition of the applicant's early pleas of guilty. Those discounts were consistent with Cameron v The Queen (supra).

86 There is no substance in this aspect of the ground of appeal.

87 The applicant states that his serious motor car accident on 31 December 2000 left him in chronic pain, deep depression and changed his personality. Over the following three years he was prescribed Losec, Tramal, Avanza, Panamax, Mersyndol, Feldene, Valium and Rohypnol. He states that as a result of the depression and medication his mental faculties were diminished and were contributing factors to his criminal activity. He relies upon Orchard v The Queen [2004] WASCA 23.

88 I have already referred to what had been put to the sentencing Judge about this.

89 The way in which an offender's mental condition might impact upon their sentence was explained by Murray J in R v Paparone [2000] WASCA 127; (2000) 112 A Crim R 190. At [49] - [53], his Honour usefully distilled a number of principles established by the authorities:

"49 There has been much written in recent years in this Court upon the relevance to the sentencing process of physical disease, mental illness, psychological disorders and intellectual deficit or handicap. ...

50 The following propositions at least would appear to emerge. The presence in the offender of such conditions as those referred to above will be relevant to the sentencing process in a number of different ways and for different reasons where there is a causal connection or link of a relevant kind established between the condition of the offender and the commission of the crimes for which he or she is to be sentenced. Generally speaking, where that is the case, the effect of the condition or disorder will be mitigatory, but that will not always be the case and indeed in some circumstances the effect may be one of aggravation, eg, where an intractable condition related to the offending behaviour leads to the conclusion that the offender will represent in the future a continuing danger to the community by reason of the commission of further offences. Such a condition may have an impact upon the type of disposition chosen and its severity.

51 Where it is advanced that an offender suffers from a condition or disability which should mitigate punishment, then as I have mentioned, it will be necessary to demonstrate a causal relationship between the offending and the condition, as I put it in CW, 'at least in the sense that as a result of the intellectual deficit the offender was not inhibited from committing the offence or offences in question'. In such a case the mitigation may be found in the conclusion that the offender's moral culpability, as opposed to his or her criminal responsibility, has been lessened so as to reduce the seriousness of the offending and the need for a denunciatory sentence.

52 Alternatively, or perhaps in addition to that factor, the offence and the offender may be seen to provide inappropriate vehicles for general and particular deterrence to be given their full weight. The extent to which such factors should be given weight will be a matter of degree depending upon the particular circumstances of the case in point, but it will often be the case, as Kennedy J put it in Dalgety, that such considerations of deterrence will continue to operate 'sensibly moderated'. Only in an extreme case will the relevance of such considerations be eliminated entirely.

53 For completeness I should add that quite apart from the situation where there is a causal link or connection between the offending and the condition in question and whether or not that is the case, if the offender's condition is such that a sentence which would otherwise be proportionate to the criminality involved may have a more severe impact upon the particular offender than upon others, then the court will be led in mercy, as well as by reason of the application of the general principles of sentencing, to moderate the punishment or choose an alternative disposition."

90 It will be observed that the critical feature to be shown before conditions such as these can have mitigatory effect in this way, is that there be a causal connection of a relevant kind between the condition of the offender and the commission of the offences. Such a connection will be "of a relevant kind" only if it is of such a character as to reduce the moral culpability of the offender in respect of the offence.

91 The material before the Court in Orchard met this criterion. The appellant was sentenced to a total of 14 years' imprisonment in respect of two armed robberies and the stealing of a motor vehicle, without parole. That aggregate sentence was equivalent to 9 years 4 months' imprisonment after 31 August 2003. On 3 March 2004, the Court of Criminal Appeal imposed sentences aggregating 6 years' imprisonment (equating to 9 years pre-August 2003), with eligibility for parole. Perhaps the most significant factor in that case was medical evidence about the effect upon the appellant of the drug Interferon, which he had been prescribed for his hepatitis C. There was evidence that the medication had produced in the appellant episodes of anxiety, paranoia and depression and that as a result of it, he had undergone a personality change. Psychiatric evidence indicated the appellant was suffering from a neuro-psychiatric syndrome exhibiting these and other symptoms as a result of which he would be less able to exercise logical reasoning processes, less able to make rational judgments and choices and possibly be more suggestible as a consequence.

92 The Court of Criminal Appeal thought it apparent that the sentencing Judge had given little weight to the effect of the Interferon on the appellant. The members of the Court (Malcolm CJ, Steytler and Wheeler JJ), in light of fresh evidence before them, were satisfied that the effect of the Interferon on the appellant's reasoning processes and general mental state contributed to his commission of the subject offences. His inability to exercise logical reasoning processes and to make rational judgments and choices necessarily reduced his moral culpability. The idea that he may have been "more suggestible" may also have been significant, as the pre-sentence report noted that he had said it was his co-offender who suggested he join in the offences and that he was "pushed" into committing one of the robberies.

93 The additional material put before this Court (I deliberately do not describe it as "fresh" or even "new" evidence, since it was clearly available to the applicant prior to his sentencing) does not in fact add very much to what was before his Honour.

94 There is what seems to be a summary dated 31 October 2005 of notes from the applicant's patient file at the Highclere Family Medical Practice. The first note is that he had a car crash on 31 December 2000 when another car apparently rammed into the back of the applicant's mother's car, wrote it off, and he was trapped inside. He apparently "split his head open" having a cracked skull and a long laceration down the back of his head. The doctor noted the applicant had not been able to return to boxing training and felt a lack of confidence, nightmares and had neck pain and was afraid he would injure himself if he continued boxing.

95 The notes, from the first one, dated 3 September 2001, to the last on 31 October 2005, confirm that he was prescribed variously the different medications referred to by the applicant. There are references otherwise to his pains and his perceived inability to return to boxing, or indeed to take exercise. There is nothing as to the effect of the medications upon him.

96 The copy correspondence is of a brief, referral nature.

97 There is no evidence about these medications, nor any description nor explanation of their effects either generally or upon the applicant in particular.

98 Certainly the material before the sentencing Judge revealed the applicant was using amphetamines when he committed these offences. That of itself is not mitigating. Indeed, on the submissions of his own counsel, the applicant has a problem with his temper when affected by amphetamines and he has previously offended violently when affected by alcohol.

99 The comments in the pre-sentence and psychological reports give rise to real concern about the danger posed to the community by the applicant because of the ease by which he is angered and the violence to which he is prone when affected by alcohol or drugs. These are not mitigating features.

100 At no stage did his counsel put to his Honour that the applicant's mental condition or the pharmacological or other effect of his medications had any causative role in his commission of these offences. The sentencing Judge drew from the material before him his observations that the injuries the applicant had received in the accidents had put an end to a potential career that he was hoping to have in boxing; that he had a substance abuse problem from a young age starting with alcohol and cannabis, and that he then developed a very heavy habit with amphetamines, but claimed to have been drug-free since May 2003; and that the psychological assessment indicated he had quite limited

self-esteem and that had become more pronounced as a result of ceasing his involvement in boxing.

101 This was as much as could be drawn from that material. What is now before us does not alter that, other than to show that between December 2001 and November 2003 the various medications listed above had been prescribed for the applicant.

102 The applicant has simply not demonstrated any relevant causal link between his medical condition, the medications he was taking and the commission of these offences. This aspect of his ground of appeal has not been made out.

104 MCLURE JA: I have had the advantage of reading in draft form the reasons to be published by Roberts-Smith JA. I agree with the orders he proposes generally for the reasons he gives.

• Totality
• Allowance for plea of guilty
• Effects of medication and depression