Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA

Criminal law - Appeal - Sentence - Three counts of sexual penetration without consent - Other counts of indecent assault and stealing - Sentence of 11 years and 1 month - Whether sentence manifestly excessive - Turns on own facts

Criminal law - Appeal - Sentence - No eligibility for parole - Whether trial judge ought to have declared appellant eligible for parole - s 89(4) Sentencing Act 1995 (WA)

Sentencing Act 1995 (WA) s 89(4)

1 OWEN JA: This is an appeal against sentences imposed on the appellant in the District Court. The appellant had pleaded guilty to a series of charges arising from a home invasion during which serious sexual offences were committed.

2 The appellant was a 36 year old man. At about 4.20 am on 30 December 2001, the appellant went to the complainant's home in Cloverdale. He knocked on the bedroom window, waking the complainant, who answered the door believing it to be a regular visitor. The appellant offered her drugs which she refused. He insisted that she had bought drugs from him before. He asked to use the toilet and pushed his way past the complainant into the house. He walked through the house, then returned and pushed the complainant to the master bedroom. The complainant tried to run, but the appellant held on to her (count 5).

3 The appellant threatened the complainant with physical harm if she did not have sex with him. The complainant stated that she did want to do anything with him but the offender threatened her with a clothes iron if she did not. The appellant forced her to masturbate him (count 1).

4 The appellant then told the complainant he wanted to have sex with her, and threatened her with a crochet needle saying he would put it inside her. He pushed the complainant onto the bed and, after engaging in cunnilingus, (count 2) he then penetrated her with his penis. While doing so he put his hands around her neck and choked her and restrained her from struggling. After penetrating her for a considerable period, he withdrew and ejaculated across her abdomen (count 3).

5 The appellant made the complainant shower, while threatening to hit her and telling her that if she tried to escape he would shoot her. The appellant then told the complainant he wanted to have sex again. They returned to the bedroom and the appellant forced the complainant to her knees. He penetrated her from behind, again for a considerable period (count 4).

6 The appellant then directed the complainant to shower again. He then took her to the living room and demanded money. She responded that she had none to give. The appellant then used the complainant's iron as a weapon, hitting her in the arms, head and stomach, and wrapping the cord around her throat to choke her. The complainant sustained bruising to her upper right arm, head and neck. He told the complainant that if she did not give him money or if she tried to run from the house he would kill her and that he would have his family kill her if she called the police (all part of count 5).

7 The appellant saw the police at his vehicle across the road. Once they had left, he collected some electrical equipment, a TV, stereo and mobile phone. He made the complainant carry some of these items to his car across the street. The appellant then fled the scene.

8 The appellant was arrested and charged with the following offences:

(a) Count 1: indecent assault while armed with an offensive weapon; 2 years 8 months concurrent;

(b) Count 2: sexual penetration without consent and while armed with an offensive weapon; 4 years 6 months concurrent;

(c) Count 3: sexual penetration without consent and with bodily harm; 8 years 1 month concurrent;

(d) Count 4: sexual penetration without consent while armed with an offensive weapon; 9 years cumulative;

(e) Count 5: stealing while in the place of the complainant without consent, and knowing that there was another person in the place; 7 years 2 months concurrent.

9 The appellant first came before the court on a preliminary hearing in July 2002. At that time there were discussions between the State and defence counsel concerning the possibility of a guilty plea but nothing was formalised. The matter proceeded by way of a hand up brief and the appellant was committed to the District Court to stand trial. The indictment is dated 11 November 2002. He appeared in the District Court at status conferences in February 2003 and May 2003. Although he had not then been formally arraigned, the court record notes that the matter was to proceed on not guilty pleas to all counts.

10 The appellant absconded in October 2003 and was apprehended in May 2004. Although he was released on bail he absconded again on 5 October 2004 and was not apprehended until 22 October 2005. Although the record is not entirely clear, there is no evidence that the appellant surrendered voluntarily. It seems that on both occasions he was located and arrested. He was formally arraigned on 4 April 2006 and entered pleas of guilty to all counts. He was remanded in custody to await sentence. Sentencing submissions were taken on 8 September 2006 and sentences pronounced on 6 October 2006.

11 The sentencing judge outlined the facts. As the appellant does not challenge her Honour's appreciation or recitation of the facts I need say no more than I already have in that regard. Her Honour made reference to the complainant's victim impact statement. Again, there is no need for me to recite the detail other than to say that the complainant's life has been shattered. The sentencing judge then made these comments:

This offender has ruined the life of another human being. I accept in this case that the offending is at the high end of offending for this type of offence. It incorporates numerous aggravating factors including the prolonged and repeated sexual attacks, the ongoing sexual degradation over two and a half hours, the forced entry into the home, the brutal sexual attacks and the repeated threats.

The fact that he armed himself and used physical force on such a number of the offences and that the nature of the offending was degrading and demeaning with no regard to her at all. The prosecutor [contends] that it is among the category of worst cases of its kind and I don't disagree with that submission. However, it would not be at the very top of that category.

I accept in this case that there is a strong need for personal deterrence, for general deterrence and for punishment. A person who treats another human being in this way should be punished and should be seen to be punished by the community.

12 The personal circumstances of the appellant were then dealt with in a way that is, save in a couple of respects that I will mention later, not subject to challenge. The appellant is an Aboriginal man, originally from the Narrogin area. At the time of sentencing he was 35 years of age. He had a deprived background, during which he was exposed to violence, alcoholism and neglect. He is involved in a long term relationship and has seven children. The de facto wife has reported incidents of domestic violence.

13 The appellant was described by her Honour as a poly-substance abuser with cannabis, amphetamines and alcohol as his drugs of choice. The appellant said that he had been affected by both amphetamines and alcohol on the night he committed these offences.

14 The sentencing judge characterised the appellant's prior record of offending as 'bad'. She noted, in particular, a 1993 conviction for the stabbing of his infant son and several sexual offences committed when he was 18 'that bear some similarities with these current offences'. Her Honour noted that between late 1993 and early 1995 the appellant did not commit any offences and that his last conviction for a violent crime was in 1993.

15 Her Honour then gave detailed consideration to the pre-sentence report and the accompanying psychological report. I will deal with the precise content of these documents later. It is sufficient at this stage to say that her Honour drew no comfort from them as to the truthfulness of the appellant, his remorse or 'victim empathy' or his willingness to undertake or complete treatment programmes to overcome substance abuse or problems in relation to sexual attitudes. But her Honour did note the submission made on the appellant's behalf that lack of frank disclosure may have been brought about by concern for the effect on family members if they became aware of full details of his offending behaviour. In submissions made on appeal there was a passing reference in this respect to 'cultural factors' but that does not seem to have been developed before the sentencing judge and it is difficult to give it any weight.

16 In pronouncing sentences, her Honour noted the seriousness of the appellant's conduct and the effect on the victim. After affording a 10 per cent deduction for the guilty pleas, her Honour imposed these sentences:

(a) Count 4: (sexual penetration while armed), 9 years;

(b) Count 1: (indecent assault while armed), 2 years 8 months;

(c) Count 2: (sexual penetration while armed), 4 years 6 months;

(d) Count 3: (sexual penetration with bodily harm), 8 years 1 month;

(e) Count 5: (aggravated burglary), 7 years 2 months.

17 The sentences on counts 1, 2, 3 and 5 were made concurrent with one another but to be served cumulatively with the term imposed for count 4. The total effective term was, therefore, 17 years and 1 month. But her Honour recognised that she was obliged to reduce the sentence by one third to accommodate the transitional provisions under the Sentencing Legislation Amendment and Repeal Act 2003 (WA). Having done so, the effective sentence was, according to her Honour, 11 years and 1 month.

18 Her Honour did not, in the sentencing remarks, reflect the transitional provisions deduction against each individual count. In my view (for reasons that I will mention shortly) her Honour should have done so. In any event, I think it would have been a wise course for her to follow because it may have avoided what seems to be a small error in the calculation. A one third reduction from a starting point of 17 years and 1 month brings the figure down to something a little in excess of 11 years and 4 months, not 11 years and 1 month. Although nothing turns on that difference of 3 months so far as concerns the appellant's grounds of appeal, it should be noted and it ought to be corrected to arrive at the appellant's earliest release date. Applying the transitional provisions to the individual sentences gives the following results:

(a) Count 4: (sexual penetration while armed), 6 years;

(b) Count 1: (indecent assault while armed), 1 year 9 months and 9 days;

(c) Count 2: (sexual penetration while armed), 3 years;

(d) Count 3: (sexual penetration with bodily harm), 5 years 4 months and 18 days;

(e) Count 5: (aggravated burglary), 4 years 9 months and 9 days.

19 The sentencing judge refused to make the appellant eligible for parole on any of the sentences she had imposed. As this is the subject of a discrete ground of appeal, I will deal with that aspect of the sentencing remarks later. The sentences were back dated to 22 October 2005, the date on which the appellant had been taken into custody.

20 I have mentioned the calculation error in the transitional discount. The sentencing judge referred to Miller v The State of Western Australia [2006] WASCA 163, [22], where Wheeler JA said:

It would be preferable in my view to apply the one-third reduction at the very end of the sentencing process after the questions of totality have been considered, so that the 'last look' at the sentence is done against the background of all the Judge's experience gained prior to the transitional provisions; or alternatively, in order to check again whether the total sentence is appropriate, some notional reconversion to equate the sentence with that which would have prevailed prior to the transitional provisions may be desirable.

21 But I should also draw attention to Hapke v The State of Western Australia [2006] WASCA 188 [111], where Steytler P said:

It is clear beyond doubt that the one-third reduction must be applied to the individual sentences for the respective offences, and that must be done before orders for cumulation or concurrency can be made. But none of that precludes a sentencing Judge considering the overall effect of possible individual sentences and various combinations of cumulation or concurrency, before fixing the particular sentences and their appropriate aggregation. Indeed, it seems to me that is implicit in the sentencing approach described by the High Court in Wong and Markarian and the 'last look' required by the totality principle.

22 I do not understand Wheeler JA to have suggested in Miller that the transitional provisions deduction should be applied only to the total effective term of imprisonment and not to the sentences on individual counts. Rather, I understand her Honour to be saying that it might be preferable, as a first step, to fix individual terms on a pre-transitional basis so that the 'one last look' approach to totality can be done against the judge's accumulated experience or knowledge of sentencing over a period that encompasses years prior to 2003. But this does not obviate the need, in the end, to fix for each individual offence, a sentence that accommodates the transitional provisions. In this way, Miller and Hapke sit happily together.

23 The appellant was granted leave to appeal against the sentences that her Honour imposed on two grounds:

1. The learned sentencing judge erred in that the sentence was manifestly excessive having regard to the appellant's plea of guilty, the length of time since he had committed serious offences and when viewed against sentences imposed in comparable cases.
2. The learned sentencing judge erred in refusing parole in that:

(a) whilst the appellant had prior breaches of court orders, he had not served a parole sentence since 1992 and the longest sentence previously imposed on him was 18 months imprisonment;

(b) her Honour placed too much weight on the appellant's prior record as a factor in refusing parole, in that his last conviction for an indictable offence was in 1993;

(c) the length of the sentence imposed, the fact that it was thought that the appellant would benefit from sex offender treatment programmes and the need for the appellant to have support and guidance upon release should have led her Honour to exercise a discretion in favour of parole.

24 In my view her Honour correctly assessed the seriousness of the offences. The circumstances of the offences were particularly grave. Her Honour's conclusion that it was 'in the worst category of cases of its kind' (although not at the top of that category) and 'at the high end of offending for this type of offence' and that 'it incorporates numerous aggravating factors' cannot be faulted. Nor can the weight her Honour gave to the effect of offences on the victim.

25 In relation to the several terms of imprisonment, I can find little merit in the challenge to the sentences based on her Honour's assessment of the appellant's prior record. Her Honour carefully examined the record and noted that there had been no offences of violence since 1993 and no convictions between 1993 and 1995. Her Honour gave particular attention to the prior sexual offences and the unlawful wounding charge. In my view, she was entitled to do so. There is no indication that she gave undue weight to the negative aspects of the prior record or that she failed to take into account other matters concerning the prior record that might have counted in the appellant's favour.

26 I take a similar view of the contention that the allowance of 10% for the guilty pleas was so inadequate as to demonstrate error. It is true that the authorities suggest that the discounts for guilty pleas of between 25% and 35% are not uncommon. But most of the authorities that specify a range do so in the context of a 'fast track' plea. In any event, the size of the allowance is ultimately a matter of discretion.

27 The Sentencing Act 1995 (WA) s 8 provides that a plea of guilty is a mitigating factor and that the earlier in proceedings the plea is made, or indication is given that it will be made, the greater the mitigation. The rationale was explained in Cameron v The Queen [2002] HCA 6; (2002) 209 CLR 339: a plea of guilty is usually evidence of remorse, it may indicate an acceptance of responsibility and it may also indicate a willingness to facilitate the course of justice. The last of these factors is what is sometimes called the utilitarian aspect; that is, the community is saved the expense of a contested trial and victims (and others associated with the events) are spared the trauma of having to re-live the relevant events for the purpose of, and in the course of, giving evidence.

28 This was not a fast track plea. Nor was a plea entered at the first reasonable opportunity. Leaving to one side the preliminary hearing, there were opportunities on at least two occasions in 2003 (during the status conferences in the District Court) for the appellant to have indicated a willingness to plead guilty. Not only did he not do so, but he absconded on two separate occasions. Her Honour was entitled to take the view, as she did, that this outweighed some of the benefits that the plea would otherwise have attracted. The sentencing judge had before her material indicating that the appellant's conduct in absconding was particularly hard on the complainant, who had to endure the ongoing delays until the matter was resolved in 2006. The complainant would have suffered additional stress knowing that the appellant was at large in the community.

29 Counsel for the appellant submitted that he pleaded guilty in circumstances where the only evidence against him was identification from a photo-board. But I think this understates the strength of the State's case. Some items that were the property of the complainant were located by police under the house occupied the appellant's de facto wife. There was evidence from other persons that the appellant had brought the items to the house. Of course, even where the State's case is strong and a guilty verdict may be thought to be inevitable, some allowance for the plea may still be appropriate. Nonetheless, the strength of the case is one of the factors that can be weighed in the balancing exercise.

30 The sentencing judge took into account that the complainant was eventually spared the final indignity of having to go through the trial process and give evidence of the ordeal through which she had been put. Weighing everything up, her Honour concluded that the appellant should have some credit for the plea, and that 10% was an appropriate figure. I can find no fault with that exercise of the discretion.

31 The appellant also argued that the sentences imposed on him cannot be justified because they are considerably higher than sentences in comparable cases. It is always a difficult task to make these comparisons, nowhere more so than in cases of violent sexual offences occurring during a home invasion. Fortunately for the society in which we live, they are not common occurrences, although even one such event would be one too many. In each instance of cases decided under the previous sentencing regime, I will include the post-2003 sentences in brackets. When, in the description of the circumstances of the offences, I refer to physical injury to the victims, I am not overlooking the attendant emotional and psychological harm which must, almost inevitably, follow an ordeal of the type under consideration in these cases.

32 R v Ogilvie (Unreported, WASCA, Library No 960643, 8 November 1996) involved one count of burglary, one of unlawful detention, one of doing bodily harm with intent and one of aggravated sexual penetration. The latter offence involved digital penetration but it was of sufficient gravity to cause serious physical injury. A total sentence of 6 years (4 years) was altered on appeal to 10 years (6 years and 8 months). But the offender was only 22 years of age, had pleaded guilty on what would now be regarded as a fast track plea and it was a Crown appeal.

33 In Krencej v The Queen [1999] WASCA 20 an offender was convicted of one count of burglary, one of unlawful detention, one aggravated sexual assault, two armed robbery charges and two counts of attempts to pervert the course of justice. Again, the sexual assault left the victim with serious physical injuries. The total effective sentence was 13 years and 8 months (9 years and 1 month). But the offender was only 19 years of age and pleaded guilty in circumstances that attracted that attracted a 25% discount.

34 Vilai v The Queen [1999] WASCA 275 was a case arising after the breakdown of a relationship. The offender was convicted (after trial) of one count of aggravated sexual assault and one count of unlawful wounding with intent to do grievous bodily harm. He also pleaded guilty to one count of unlawful detention. An aggregate term of 14 years (9 years and 4 months) was reduced on appeal to 10 years (6 years 8 months). The offender was still in his 20s, had no previous convictions, he had demonstrated remorse and he had undergone training and educational programmes while in custody.

35 Counsel for the appellant referred to Narrier v The Queen [2000] WASCA 86; (2000) 111 A Crim R 405. An offender had been sentenced to an aggregate of 12 years (8 years) for two aggravated burglaries, an aggravated sexual assault and an unlawful assault. The case is not of much assistance for comparative purposes because the point at issue in the appeal was whether an order for indefinite detention should be upheld. The circumstances of the offences were not discussed in any detail, although the judges did say that the 12 year sentence was 'well within range'.

36 The offences in Collins v The Queen [2002] WASCA 142 were two aggravated burglaries, a robbery, a burglary, an assault occasioning bodily harm and four counts of aggravated sexual assault. The aggregate sentence was 11 years (7 years and 4 months). The sexual offences were of a particularly degrading nature and caused physical injury to the victim. But the offender was in his mid 20s, he pleaded guilty on the fast track system, had shown remorse and had demonstrated willingness to engage in treatment programmes.

37 There are three cases to which counsel for the appellant referred and which have been decided under the post-2003 sentencing regime. The offences in the The State of Western Australia v Miller [2005] WASCA 53; (2005) 30 WAR 38 were two counts of sexual assault, an aggravated burglary and an indecent assault. A total sentence of 4 years' imprisonment was increased to 6 years on appeal. Although he was armed with an iron bar and threatened the victim, there is no indication in the case report that the offender had inflicted physical harm on her. It was a late guilty plea with some evidence of remorse. It, too, was a State appeal.

38 Rigby v The State of Western Australia [2005] WASCA 134 involved an aggravated burglary, two counts of unlawful detention and one count of aggravated sexual penetration. An aggravating factor was that the victim's 3-year-old daughter was present in the house and suffered lasting effects from the attack on her mother. There was a late plea of guilty that was made in the face of what was described as an overwhelming prosecution case. The aggregate sentence of 7 years and 4 months was not disturbed on appeal.

39 Finally, I should mention The State of Western Australia v Turaga [2006] WASCA 199, another State appeal. This, too, arose from the breakdown of a relationship. An aggravating factor was that the offender breached a Violence Restraining Order in relation to the victim. The offender was convicted of 15 counts of aggravated sexual penetration committed over a period of 3 hours. Significant physical injuries were caused to the victim. But the offender pleaded guilty on the fast track system and had demonstrated remorse. The original sentence of 4 years and 6 months was increased on appeal to 7 years and 4 months.

40 This analysis demonstrates that the circumstances of the offending conduct are many and varied and that they raise a broad spectrum of sentencing principles and considerations. In cases of this nature, considerations of punishment and general and specific deterrence have particular significance. In many of these cases the court referred to the underlying sentencing approach that a single act of penile penetration of an adult victim's vagina would commonly attract a sentence in the range of 4 years to 6 years (formerly 6 years to 9 years) with a 4 year term being at the lower end of the scale and often imposed after taking into account mitigating factors.

41 It is true, as counsel for the appellant submitted, that none of the cases that I have mentioned resulted in a sentence of 11 years (or thereabouts) for sexual offending in circumstances bearing some features that were present in the appellant's misconduct. But this, in itself, does not demonstrate error. The question is whether the sentencing discretion was exercised in error because, for example, a relevant factor was overlooked or given insufficient weight or because it proceeded on an erroneous principle or, alternatively, the sentence is, in itself, unreasonable or unjust. The first two of those possibilities are not present in this case. The only question is whether the aggregate sentence of 11 years and 1 month was outside the range that could be imposed in the sound exercise of the sentencing discretion.

42 The sentencing judge, rightly in my view, characterised the appellant's conduct as at 'the high end of the offending for this type of offence'. Quite apart from the home invasion and thefts, there were two separate acts of sexual penetration committed in a violent and demeaning manner and resulting in physical, as well as emotional harm. The appellant hit the complainant with an iron and wrapped the cord around her neck causing bruising and other injuries. As her Honour also noted, the appellant 'ruined the life of another human being'. In light of the analysis of other cases it has to be acknowledged that this is a sentence in full measure: it is at the upper end of the range of sentences that could properly have been imposed. But given all of the circumstances, I do not think it is outside the available range.

43 In my view ground 1 has not been made out and the aggregate sentence of 11 years and 1 month should be allowed to stand.

44 Section 89(4) of the Sentencing Act 1995 (WA) is in these terms:

A court may decide not to make a parole eligibility order in respect of a fixed term imposed on an offender if the court considers that the offender should not be eligible for parole because of at least 2 of the following 4 factors:

(a) the offence is serious;

(b) the offender has a significant criminal record;

(c) the offender, when released from custody under a release order made previously, did not comply with the order;

(d) any other reason the court considers relevant.

45 The term 'release order' (as used in s 89(4)) is defined in s 89(8) to mean 'an order made ... in respect of an offender who is subject to a sentence of imprisonment that releases the offender on conditions before the end of the sentence'. In other words, it encompasses (relevantly) parole orders and conditional release orders but would not include community based orders or intensive supervision orders imposed as a sentencing option.

46 To understand how her Honour approached the question of parole eligibility it is necessary to look closely at the pre-sentence report and the psychological report that were part of the sentencing materials. Although the relevant passage from the sentencing remarks is lengthy, I need to set it out in full.

I have had a pre sentence report and a psychological report and it is apparent that the offender has given conflicting information to the writers on a number of issues, and I have no confidence in his truthfulness. He is assessed as being at high risk of re-offending. I note that all of his violent and sexual offending has been precipitated by his excessive use of alcohol. Nonetheless it is noted that he has been unwilling to cease his use of alcohol or of illicit substances.

The pre sentence report writer has no confidence in his ability to complete orders. His past record is not good. He committed serious offences during the currency of four court orders and two court orders were cancelled due to non-compliance. The writer of the pre sentence report holds concerns regarding his ability or his willingness to comply.

Both the pre sentence report writer and the psychologist remarked on the offender's positive presentation as intelligent and articulate, that he was pleasant and cooperative during the interview. Of concern, however, was his minimisation of the 1989 serious attempted sexual penetrations and that he placed blame on the victim and failed to display any victim empathy.

In psychometric testing he reported having sexual urges which he felt the immediate need to act upon while under the influence of alcohol and drugs. Results of testing indicate that he was dishonest and engaged in mock justification of his interest in sexual deviance, and that he may have adopted a victim stance in relation to his current behaviour.

The psychologist noted the offender's treatment needs but his test responses suggest he may not be motivated for treatment. To the offender's credit, however, the psychologist reports that the offender demonstrated some understanding of the victim empathy issues, and presented as keen and motivated to address some of his treatment issues, including substance abuse, domestic and general violence, but not his sexual offending because he does not recall the offending taking place.

This all seems very contradictory and confusing but the psychologist believes that it is possible the offender was inhibited from providing full information during interview due to shame and risk of the information being mentioned in the courtroom. The psychologist expresses hope that the offender will be able to discuss factors in his offending within therapeutic treatment following sentence.

47 At the sentencing hearing the State contended that the appellant should not be made eligible for parole because the offences were serious, his record was significant, he had not complied with previous orders and he was not necessarily suitable for treatment. Her Honour effectively accepted that submission and said:

I accept that three of the factors listed in [s 89(4)] have been met. These offences are all extremely serious. The offender has a lengthy prior record and he has failed in the past to comply with court orders.

I note of course that I retain an overriding discretion to allow eligibility for parole. In this case I believe the factor of treatment looms large. The offender's behaviour in his interviews where he gave conflicting information to the writers and where he failed to express empathy or remorse in relation to his earlier sex offending combined with his continual denial that he has any recollection of this offending, leaves me unpersuaded that he is a person who will change as a result of treatment.

He has had alcohol abuse treatment in the past and yet has not stopped his problematic use of alcohol. He was affected by alcohol at the time of his offences. The conflicts between the information he gave to the pre sentence writer and the psychologist indicate to me that he was doing his best to try to present in a way that would impress the writers because he would like parole eligibility. I have no confidence that he has any real interest in cooperating or any real interest in changing his ways.

Having taken account of all these matters, in my discretion I am satisfied that this is a case where he should not have parole eligibility. [emphasis added]

48 The portion in this passage that I have emphasised seems to have come from the pre-sentence report and the submissions of the State. In the former, the author points out that the appellant 'has been subject to seven periods of community based supervision' but that he 'committed further serious offences during the currency of four of these orders and two orders were cancelled due to non-compliance'. In sentencing submissions, counsel for the State relied primarily on the factors in s 89(4)(a) and (b). But counsel pointed to these remarks and related them to s 89(4)(c). It is common ground that the appellant has only once failed to complete a term of parole, and that was in 1992. The other six orders referred to in the pre-sentence report were other forms of community based supervision.

49 No distinction is made in her Honour's remarks between breaches of a parole order (which could legitimately be taken into account under s 89(4)(c)) and breaches of other orders, which were not. Nor is it clear whether her Honour turned her mind to this distinction and, if she did, what affect it had on the reasoning process.

50 It seems to me that her Honour may have proceeded on an incorrect premise in this respect. I accept that if it is a problem, it is one of a relatively technical nature. I say this for two reasons. First, there is no doubt that, in relation to the appellant, the criteria in s 89(4)(a) and (b) were made out. The offences were serious and he had a significant criminal record. The discretion whether or not to grant parole was therefore triggered regardless of the existence of criteria under s 89(4)(c). Secondly, a sentencing judge would be justified in taking into account past performance in complying with court orders as a factor either under s 89(4)(d) or generally in the balancing exercise involved in the final determination. But it is not clear to me how, and to what extent, the breach of orders other than parole orders played on her Honour's mind and, accordingly, the exercise of the discretion may have proceeded from an incorrect base.

51 The appellant's prior record is littered with convictions in respect of which intensive supervision orders and community based orders were imposed. But what is not clear is the type of condition or conditions that the appellant failed to meet or whether the breaches of the previous orders related only to the commission of other offences. Certainly, the appellant had never before faced a sentence of anything like the length of this one. And (save for a suspended sentence in February 1997) he had not been imprisoned since 1992.

52 I am mindful of the statements in Messiha v Royce [2004] WASCA 290 [15] - [16] and Pickett v The State of Western Australia [2004] WASCA 291 [7] - [8] that where the exercise of the discretion to refuse parole is triggered by factors within s 89(4), it will be difficult to show a mis-exercise of the discretion. Nonetheless, in those circumstances I have outlined, I believe that the exercise of the discretion miscarried and this court is required to look closely at the circumstances and revisit the question of parole eligibility.

53 The principles on which a court acts in deciding whether or not to make an offender eligible for parole have been the subject of legislative prescription and judicial analysis over many decades. The principles were gathered together and summarised in Thompson v The Queen (1993) 8 WAR 387, 396. Thompson was decided under a previous legislative regime and it has to be acknowledged that s 89 (in its current form) is quite different from the provisions with which the court was there dealing.

54 In Piccolo v The State of Western Australia [2007] WASCA 149 the court considered whether s 89 effected a change to the received view of the law arising from Thompson. Two of the Thompson principles were discussed, namely, whether the discretion to order parole eligibility was triggered only if there was something in the materials pointing positively towards parole and whether the philosophy of the legislation suggested a bias towards eligibility. No unanimity of view emerges from the reasons of the members of the court in that case. I do not think it is appropriate to revisit the question of principle for two reasons. First, it was not argued. Secondly, resolution of the question is not necessary for the disposition of this appeal. Whatever may be the answer to the specific question, I do not read the present legislative provisions as effecting any significant change in the understanding of the basic rationale for parole and the place it has in the penal regime.

55 A significant (but not the only) aspect of parole is, and always has been, its rehabilitative role. It has to be borne in mind that a court does not grant parole: it makes an offender eligible for release on parole at some time in the future. The sentencing judge is required to prognosticate circumstances which may be relevant to the offender at the time when he or she would be eligible for release, thus recognising a relationship between punishment of the offender on the one hand and the need to consider factors leading to the offender's rehabilitation on the other. The purpose of the prognosis is to enable some preliminary consideration of the question, whether, in terms of rehabilitation of the offender, he or she is likely to benefit from serving the relevant portion of the sentence under supervision in the community.

56 There is another aspect. It appears that where an identifiable problem has contributed to offending behaviour, the offender is unlikely to be released on parole unless, during the time in custody, progress has been made in addressing that problem. Deviant sexual behaviour or attitudes and substance abuse problems are two examples. One way progress can be made is for the offender, while in prison, to undergo treatment or education programmes to address the identified problems. The word 'identified' is significant. As I understand modern psychological theories, unless a person identifies the problem and accepts that it is a problem he or she is unlikely to benefit from treatment programmes. The practicalities of the corrective services regime in this State are such that unless the offender identifies and accepts the problem he or she is not usually admitted to the treatment programme. And unless the offender completes the treatment programme he or she is not usually considered for release on parole.

57 Looked at in this way, eligibility for parole may be a significant incentive for the offender to engage in treatment programmes while in custody. The completion of treatment programmes does not guarantee that a person will overcome the identified problem on a permanent basis. Nor is it a guarantee against recidivism. But it stands to reason that an offender who has undergone treatment will have greater chance of resisting the temptation to lapse into old habits. There is, therefore, a significant public interest and public benefit in the rehabilitative aspect of parole.

58 The exercise of the discretion might also require the court to have regard to the circumstances that are likely to confront the offender at the time he or she is released back into the community. In the appellant's case there is no evidence that support mechanisms from family or other personal connections are likely to be available. One real advantage of parole is that it permits the authorities to monitor the offender's progress when first released back into the community and to provide assistance that will give a reasonable chance for gains made through treatment programmes to be consolidated.

59 It is difficult to cavil with the sentencing judge's expressed concerns about the accounts given by the appellant to the writers of the pre-sentence and psychological reports. It seems the appellant has been provided with prior opportunities to address his alcohol and drug abuse problems and that he has not done so. There was no clear expression of empathy or remorse in relation to the earlier sexual offences and he had denied any recollection of the circumstances in which the current offences occurred. These matters were, I think, significant contributing factors to the conclusion reached by her Honour that the appellant had no real interest in changing his ways and was unlikely to change as a result of treatment.

60 The author of the pre-sentence report expressed 'concerns regarding [the appellant's] ability or willingness to comply with any potential community based disposition so considered by the Court'. In the concluding summary the author referred again to the appellant's unwillingness to cease his use of alcohol and drugs 'whilst in the community' and proffered the opinion that this would appear 'severely to limit his ability to benefit from any therapeutic gains in the community'. The author also expressed the view that punishment and protection of the community both suggested a term of imprisonment was required. It seems that the author was addressing the choice between a community based disposition and imprisonment, rather than parole. In relation to the latter, the only comment in the report is this:

Should the Court consider a term of imprisonment most suitable, [the appellant] may benefit from a period of parole in the future to allow his reintegration into the community.

61 In the psychological report, the appellant is classified as being in the high risk category for re-offending. The author says: 'It is essential for his offending behaviour to be addressed if his risk of re-offending is to be decreased. This is currently problematic given his denial of any recollection of his offending behaviour having taken place'. A little later the author says this:

To his credit, [the appellant] demonstrated some victim empathy issues and presented as keen and motivated to address some of his treatment issues, including his substance abuse, domestic and more general violence ... but not his sexual offending behaviour because he does not recall it having taken place.

62 The author said that the appellant's offending behaviour would best be addressed within an intensive sex offender treatment programme and that he should be directed to address any outstanding treatment needs following his participation in such a programme. But, as is pointed out in the final paragraph of the report, if the appellant maintains his stance about having no recollection of the sexual offending he may not be considered suitable for inclusion in such a programme. Earlier in the report the author expressed a hope that the appellant might be prepared to discuss the factors involved in his offending 'within the safety of the therapeutic treatment context, and following sentence, when he may no longer be concerned about confidentiality and the impact of the sentencing outcome'.

63 The appellant presents, for society, a very real dilemma. He is presently a serious risk to the community and this is recognised in the fact that he must be confined to prison for a lengthy period. On present indications, unless he addresses three identified problems (sexual

deviancy, substance abuse and domestic and general violence) he will continue to be at a high risk of offending and therefore an ongoing danger to the community. Concerns are held by professionals who have interviewed him about his ability and willingness (at present) to address all of these problems. But the picture is not all negative. There are glimmers of light in the darkness and hopelessness that seems to represent this person's life. He has, for example, avoided serious offending for reasonably long periods. That, I accept, is not much. But at least it is something.

64 To resort to the vernacular, the ball is in the appellant's court. His rehabilitation lies in his own hands. But the first step in the road to rehabilitation requires him to undergo treatment programmes. He does not currently satisfy all of the criteria for entry into these programmes. Again, the remedy for that situation lies in his own hands. I have come to the view, on balance, that the public interest will best be served if this man is given an incentive to undertake the necessary steps towards rehabilitation. That incentive lies in making him eligible for parole. If he makes sufficient progress and qualifies for a release order, parole will have the added benefit of enabling the authorities to place conditions on the terms of his release and to monitor his reintegration into society.

65 The need to encourage the appellant to follow this course is at least implicit in the pre-sentence report and the author suggests that he may benefit from parole. If, in accordance with the Thompson principles, it is necessary to find something pointing positively in favour of parole eligibility, these factors satisfy that need.

66 In my view, ground 2 has been made out. The appellant should have been made, and should now be made, eligible for parole on each of the sentences imposed on him. In the light of this conclusion I have looked again at the sentences that her Honour imposed. Apart from making the parole eligibility order, I would not otherwise alter any of the sentences.

67 I would allow the appeal but only to the extent of making the appellant eligible for parole on each of the sentences imposed. In relation to the terms of imprisonment, the record should be corrected to make the post-transitional provisions calculation equate as nearly as possible to 11 years and 1 month. In this respect, I draw attention to Sentencing Act 1995 s 37(1), (2) and (3).

69 MILLER JA: I have had the opportunity of reading in draft the reasons for judgment of Owen JA. I agree with his Honour's reasons in relation to ground 1 of the grounds of appeal. I respectfully disagree with those reasons in relation to ground 2.

70 The learned sentencing judge did mistakenly think that cancellation of four community based supervision orders in consequence of reoffending meant that the appellant had 'when released from custody under a release order made previously [failed] to comply with the order' within the meaning of s 89(4)(c) of the Sentencing Act 1995. The fact was, however, that the appellant had failed to complete a term of parole in 1992. This meant that he had, in fact, when released from custody under a release order, failed to comply with it.

71 Perhaps more importantly, the learned sentencing judge was entitled to conclude, under s 89(4)(d) ('any other reason the court considers relevant') that on all the evidence she had no confidence that the appellant had 'any real interest in cooperating or any real interest in changing his ways'. The relevant passage from the learned sentencing judge's comments has been reproduced by Owen JA and I need not quote it again. Her Honour noted the appellant's behaviour in interviews with the writers of reports in which he failed to express any empathy or remorse in relation to earlier sex offending and in which he continued to deny that he had any recollection of the offences committed which were the subject of this case. The conclusion reached by the learned sentencing judge that she was 'unpersuaded that he is a person who will change as a result of treatment' was, in my view, entirely open.

72 I adhere to the views I expressed in Piccolo v The State of Western Australia [2007] WASCA 149, at [62], in relation to the proper reading of s 89(4) of the Sentencing Act 1995. I consider that the 2003 amendments to the Sentencing Act had the consequence of removing any suggested bias towards a grant of eligibility for parole. The discretion whether or not to grant eligibility for parole is a discretion at large. I appreciate that Wheeler JA expressed a different view in Piccolo, at [15] and [19]. Pullin JA expressed another view at [23] - [24].

73 The learned sentencing judge may, in this case, have made an error when considering whether or not the appellant had failed to comply with a release order when previously released from custody. That is not, however, a sufficient basis for interfering with the exercise of her discretion. The appellant had, in fact, failed to comply with a release order when previously released. In my opinion, all criteria in s 89(4)(a), (b), (c) and (d) were met in this case. The offences were extremely serious and at the higher end of offending. The appellant had a significant criminal record, including offences for sexual offending. He had failed to comply with a parole order when previously released. He showed no victim empathy, no appreciation of the seriousness of his prior offending, appeared to adopt a 'victim stance' in relation to the offences in question and gave no indication of any interest in changing his pattern of behaviour, or undergoing courses of rehabilitation.

74 Owen JA has concluded that the appellant presents a dilemma for society and is a serious risk to the community. I respectfully agree. He is at a high risk of reoffending and an ongoing danger to the community. Owen JA considers that there may be 'glimmers of light in the darkness and hopelessness that seems to represent this person's life', but I respectfully disagree. The appellant has had every opportunity to address his problems and by continuing to claim that he has no recollection of the offending which was the subject of the indictment, it seems unlikely that he will be motivated to attend any rehabilitation programmes. The case is one in relation to which I consider there is no 'glimmer of light' in relation to the prospects of the appellant. He represents a threat to society and s 89(4) of the Sentencing Act 1995 is, in my opinion, designed to ensure that in such cases, where the criteria revealed in s 89(4)(a), (b), (c) and (d) are present, an offender should not be released to parole. I therefore consider that any error made by the learned sentencing judge in relation to the question of non-compliance with a previous release order is a matter of minor significance. Even accepting that the matter should be approached afresh because of that error, I am unable to conclude that there is any good reason for revoking the learned sentencing judge's order in relation to parole. I would therefore dismiss ground 2 and dismiss the appeal generally.