Court of Appeal (WA)|2012-05-10|Before: Pullin JA

UGLE -v- THE STATE OF WESTERN AUSTRALIA [2012] WASCA 104 (10 May 2012)

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

CITATION : UGLE -v- THE STATE OF WESTERN AUSTRALIA [2012] WASCA 104

Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA

Criminal law - Appeal against sentence - Appellant convicted on his pleas of guilty of one count of aggravated burglary, one count of aggravated assault occasioning bodily harm and six counts of aggravated sexual penetration without consent - Victim an elderly woman aged 78 years - Appellant aged 18 years 9 months when he committed the offences - Victim lived alone in her home unit in an accommodation complex for senior citizens - Appellant attacked the victim in her home unit - Pleas of guilty entered early but not at the first reasonable opportunity - Appellant a danger to the community - Appellant had some degree of remorse and limited victim empathy - Appellant apparently unable to accept responsibility for the offences in that he blamed, or attributed his behaviour to, external factors - Total effective sentence of 11 years' imprisonment with eligibility for parole - Whether totality principle infringed

Ainsworth v D (a child) (1992) 7 WAR 102

Bensegger v The Queen [1979] WAR 65

Cameron v The Queen [2002] HCA 6; (2002) 209 CLR 339

Carr v The State of Western Australia [2006] WASCA 125; (2006) 166 A Crim R 1

Colangelo v The State of Western Australia [2004] WASCA 294

Cooper v The State of Western Australia [2009] WASCA 37

Jarvis v The Queen (1993) 20 WAR 201

Johnson v The Queen [2004] HCA 15; (2004) 78 ALJR 616

Ly v The Queen [2007] NSWCCA 28

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

Royer v The State of Western Australia [2009] WASCA 139; (2009) 197 A Crim R 319

The State of Western Australia v Akizuki [2008] WASCA 267; (2008) 192 A Crim R 373

The State of Western Australia v Atherton [2009] WASCA 148; (2009) 197 A Crim R 119

The State of Western Australia v Wynne [2008] WASCA 195; (2008) 188 A Crim R 502

Thorn v The State of Western Australia [2008] WASCA 36

Ugle v The State of Western Australia [2007] WASCA 199

Veen v The Queen (No 2) [1988] HCA 14; (1988) 164 CLR 465

Vlek v The Queen (Unreported, WASCA, Library No 990153, 29 March 1999)

2 BUSS JA: The appellant was convicted, on his pleas of guilty in the District Court before O'Neal DCJ, on eight counts in an indictment. All of the offences were committed on 2 June 2010. There was one count (count 1) of aggravated burglary, contrary to s 401(2) of the Criminal Code (WA) (the Code); one count (count 2) of aggravated assault occasioning bodily harm, contrary to s 317(1) of the Code; and six counts (counts 3 - 8) of aggravated sexual penetration without consent, contrary to s 326 of the Code.

3 The victim of the offences was an elderly woman, aged 78 years, who lived alone in her home unit in an accommodation complex for senior citizens.

4 The sentencing judge imposed sentences for the offences, as follows:

aggravated sexual penetration, by penetrating her vagina with his finger

aggravated sexual penetration, by penetrating her vagina with his penis

aggravated sexual penetration, by penetrating her anus with his penis

aggravated sexual penetration, by penetrating her vagina with his penis

aggravated sexual penetration, by penetrating her anus with his penis

aggravated sexual penetration, by introducing his penis into her mouth

5 His Honour ordered that the sentences for counts 1, 2 and 8 be served cumulatively, and that the sentences for the other counts be served concurrently with each other and concurrently with the sentences for counts 1, 2 and 8. The total effective sentence was therefore

11 years' imprisonment. The total effective sentence was backdated to commence on 2 June 2010, being the date on which the appellant was taken into custody for these offences. A parole eligibility order was made.

6 The appellant appeals to this court against sentence.

The facts and circumstances of the offending

7 On 2 June 2010, the complainant was at home in her unit. At about 7.00 pm she undressed and commenced having a shower in her bathroom. At this time, the appellant, who was then aged 18 years, entered the grounds of the accommodation complex by jumping the external perimeter wall. He made his way to the complainant's unit, and unsuccessfully attempted to gain entry through a locked rear door. He then went to the front of the unit and smashed a lounge room window. The appellant entered the complainant's unit through this broken window (count 1).

8 Upon entering the unit, the appellant was confronted by the complainant's small dog. He pushed the dog into a cupboard. The complainant, having heard noises made by the appellant and her small dog bark, decided to leave the shower. The appellant entered the bathroom and confronted the naked complainant. He struck her, pushing her to the floor. As the complainant fell, she hit her head on the wall, and sustained a laceration to the back of her head (count 2).

9 The complainant screamed for help. The appellant responded by placing his hand over her mouth. While the complainant was on the bathroom floor, the appellant removed his penis from his pants. He then positioned himself on top of the complainant and put his fingers inside her vagina (count 3). Also, he rubbed her clitoris roughly, causing her pain. The complainant told the appellant that he was hurting her, but he persisted. The appellant then attempted to penetrate the complainant's vagina with his penis. He was successful only in achieving partial penetration (count 4). He then penetrated her anus with his penis, causing her to scream in pain (count 5).

10 Next, the appellant dragged the complainant from the bathroom to her bedroom. He pushed her onto the bed and positioned himself over her. The appellant grabbed her necklace, which included a chain and two lockets. He ripped it from her neck. The appellant took the necklace when he eventually left the premises. Later, he gave it to his cousin. The necklace, which was of some sentimental value to the complainant, was not recovered.

11 While the complainant was on the bed, the appellant attempted to penetrate her vagina with his penis. He achieved only partial penetration (count 6). He then partially penetrated her anus with his penis (count 7). After removing his penis from her anus, the appellant positioned himself next to the complainant and demanded that she perform oral sex on him. The complainant said that she had never done that, but the appellant insisted and she then complied. The appellant thrust his penis into the complainant's mouth for about 5 minutes. During this time she coughed and choked. The appellant ejaculated into the complainant's mouth, again causing her to choke (count 8).

12 After the appellant withdrew his penis from the complainant's mouth, he demanded money. He then dressed and left her home unit. The complainant telephoned the emergency services and was taken by ambulance to hospital. She received treatment for her injuries, which included a laceration to her scalp, bruising to her face, swelling and bruising to her lip and mouth, bruising to her upper body, bruising on her right leg, and lacerations and bruising to her anal and genital areas.

13 The appellant was apprehended shortly after he committed the offences.

The appellant's personal circumstances, the pre-sentence report and the psychological report

14 The appellant was born on 11 September 1991. He was aged 18 years 9 months when he committed the offences and was 19 when sentenced.

15 The appellant is the eldest of six children. His youth was marred by violence from his father. The family were homeless. He did not have a positive role model.

16 The appellant commenced using cannabis when he was 13 years old and alcohol at the age of 16 years. He has an entrenched history of cannabis and alcohol abuse.

17 The material before the sentencing judge included a pre-sentence report and a psychological report.

18 In the pre-sentence report, the views of the author are summarised, relevantly, as follows:

Mr Ugle presented as an immature individual who blames or attributed his behaviour on external factors, such as alcohol consumption and negative peers. This was evidence[d] by [his] only being able to discuss his offending in the context of a 'nightmare'. He demonstrates limited victim empathy, however [he] identifies that she would have suffered emotional and physical pain, and cites shame for his actions. He appeared unable to accept responsibility for the current offences, which could be partly attributed to his immaturity and [the] gravity of the situation.

...

His offending behaviour is related to his choice of associates, impulsive and reckless decision making and poly-substance use. Exposure to alcohol fuelled violence in domestic relationships in his formative years potentially modelled a distorted view of gender roles in relationships and normalised violent behaviours.

19 The psychological report was prepared by Gosia Stasinski, a registered psychologist.

20 Ms Stasinski summarised her principal conclusions, as follows:

Mr Ugle has witnessed violence in his family of origin, including witnessing his mother being physically abused by his father, as well as similar violence being present in his extended family. He was also the victim of violence perpetrated by his father when he was a child, with Mr Ugle's mother stating that he was hospitalised [at] pre-school age due to being assaulted with scissors. Mr Ugle's father was also reported to be a regular user of substances such as amphetamines, marijuana and alcohol, and that this exacerbated his aggression.
Mr Ugle has reportedly successfully completed high school, although he has had minimal work experience. He planned to attain a trade or apprenticeship and work in the mining industry as a driver of heavy vehicles/trucks. Although Mr Ugle displays ability to attain long-term goals (such as in education), he appears to have a tendency to act impulsively, particularly if his impulse control is being affected by substance abuse or negative peer influence.
It appears that Mr Ugle experienced difficulties in some of his interpersonal relationships and may have acted in aggressive ways in intimate relationships. He reported that he had broken up with his partner about a month prior to offending and was feeling upset as a result. It is likely that Mr Ugle's view of females has been negatively impacted by how females were treated in his family of origin, with aggression directed towards females being largely minimised and normalised.
Mr Ugle's substance abuse appears to be closely linked to his offending behaviour, including being intoxicated at the time of the current offences. He stated that he smokes marijuana, often on a daily basis and also tends to binge on alcohol, usually on weekends. Mr Ugle reported to be attending Alcoholics Anonymous meetings, which seemed to have positively impacted on his view of alcohol and desire to abstain from it. His attitudes towards cannabis use appear to be less pro-social, with Mr Ugle lacking insight into the detrimental effects of the drug.
Mr Ugle's score on the STAXI-2 inventory suggested that he may feel anger in a very intense way and may also lack the necessary control to contain these high arousal states. His offending behaviour suggests a lack of control over his emotions, namely sexual arousal and anger, particularly when also under the influence of alcohol and cannabis.
It appears that Mr Ugle's current offences grew out of his desire to obtain cannabis, as well as his emotional state at the time. Mr Ugle stated that he would burgle homes in an attempt to pay for drugs or to seek alcohol. It is possible that the altercation that Mr Ugle witnessed between his cousin and his partner shortly before he offended increased his state of arousal and triggered attitudes that promote the abusive treatment of females. He displayed a lack of impulse and emotional control during the commission of the offences.

21 Comments made by Ms Stasinski in relation to the appellant's risk of reoffending are important. She said that the appellant's impulsive behaviour appears to be a key factor in his risk of reoffending. Also, his heavy use of cannabis and alcohol is likely to exacerbate tendencies to act out his emotions, including anger and arousal. Although the appellant appears to have normal sexual interests, as evidenced through past relationships with females of the same age, he also appears to have negative attitudes towards women which are expressed in his aggressive behaviour towards them. This may be attributable to his repeated exposure to violence (especially to women) in his formative years. In addition, the appellant appears to be easily influenced by his peers. He may repeat the behaviour of others whom he respects. It is apparent that the appellant has intensive treatment needs that must be addressed if his risk of reoffending, both in sexual and violent ways, is to be appropriately managed.

22 The appellant has a record of prior convictions as a juvenile. The offences include possessing stolen or unlawfully obtained property, stealing a motor vehicle and common assault. However, none of the offences was punished by custodial detention.

23 The complainant, in her victim impact statement, said that she had become too frightened to live in the home unit where the offending occurred. She had lived in the home unit with her late husband. She feels deprived of many beautiful memories of her life with him.

24 Since the offending, the complainant continues to experience terrible nightmares and has trouble sleeping. She feels very stressed, does not feel safe, has frequently felt sad, and is easily alarmed.

25 The complainant has been assisted, to some extent, by attending counselling on a weekly basis. She has been prescribed Valium, but is reluctant to take the medication because of its unpleasant side effects.

26 The physical injuries inflicted by the appellant caused her to suffer substantial hair loss at the back of her head. Since the offending, she has had constant neck and head aches and sore hips. Her whole body ached for a long time after the offending. She believes that the appellant's attack aggravated her osteoarthritis.

27 The trial judge said that although this was the first violent sexual attack committed by the appellant, he had previously acted in a violent manner towards women.

28 His Honour considered that neither the pre-sentence report nor the psychological report was encouraging. He concluded that the appellant was, at present, 'a danger to the community' (ts 45).

29 The trial judge noted that there were some mitigating factors to be taken into account.

30 First, there were the pleas of guilty. Although the pleas were 'early', they were not made at the first opportunity. They were 'not early enough to avoid the necessity for the complainant to have to revisit all the details of these offences in the course of being proofed by counsel for the State' (ts 46). His Honour said that he took the pleas of guilty into account as a mitigating feature, but not to the extent that he would have if they had been fast-track pleas.

31 Secondly, the appellant cooperated with the police after he was apprehended. He participated in a video-recorded interview and made admissions.

32 Thirdly, the appellant did not have a significant record of prior offending. For example, there were no prior convictions for offences involving serious violence and there were no prior convictions for sexual offences. It could not, however, be said that the appellant's antecedents generally were good.

33 Fourthly, the appellant was youthful. He had not previously been imprisoned. However, in his Honour's view, rehabilitation of the appellant was 'going to take a heroic effort' (ts 47).

34 Fifthly, although his Honour doubted that the appellant had the capacity for any substantial or deep remorse, he accepted the appellant felt shame about his offending and there was some degree of remorse on his part.

35 Sixthly, the appellant had taken some steps towards his rehabilitation; in particular, by his participation in Alcoholics Anonymous meetings.

36 The trial judge said that although a weapon was not used by the appellant in offending against the complainant, she was elderly and highly vulnerable. The burglary was not premeditated 'in any substantial way', but it could not be said that it was 'entirely impulsive' (ts 48). There were six different offences of sexual penetration and a number of them, particularly count 8, were especially humiliating and degrading. His Honour found that the aggravated assault occasioning bodily harm and the sexual offences were 'at the upper end of the scale' (ts 48). He emphasised the importance of personal and general deterrence as sentencing factors.

Other charges for which the appellant was on bail

37 When he committed the offences against the complainant, the appellant was on bail for a number of charges, including four aggravated burglaries, three related stealing charges, and one charge of stealing a motor vehicle. He had been released on bail in relation to these charges on 15 January 2010, subject to protective bail conditions.

38 On 1 April 2010, the appellant was charged with other offences, namely giving false details to the police and breach of a protective bail condition. He was released again on bail, subject to various conditions.

39 Accordingly, when the appellant offended against the complainant he was on bail for other charges and, in committing the offences, he breached a protective bail condition.

40 On 1 July 2011, the appellant was sentenced in the Magistrates Court at Armadale for the other charges referred to at [37] - [38] above and some other offences. He received a total effective sentence of 14 months' immediate imprisonment. This sentence was ordered to be served cumulatively upon any existing term. He was also fined, in total, $1,100.

The earliest date on which the appellant may be released

41 The earliest date on which the appellant may be released on parole is 1 August 2020. If he is not released on parole, he will remain in custody until 1 August 2022, when he will have completed the sentences imposed by the sentencing judge and the magistrate.

42 The sole ground of appeal is that the sentencing judge erred in imposing a total effective sentence which infringed the totality principle. On 17 October 2011, McLure P and Mazza J granted leave to appeal on this ground.

43 A complaint that a sentencing judge has infringed the totality principle involves an allegation of inferred error.

44 The totality principle usually applies where an offender is to be sentenced for more than one offence or where he or she is serving a term of imprisonment, at the time of sentencing, for another offence. The principle comprises two aspects. First, the total effective sentence imposed on the offender must bear a proper relationship to the overall criminality involved in all of the offences (including those, if any, in respect of which the offender is still serving a term of imprisonment), viewed in their entirety, having regard to all relevant circumstances including those referable to the offender personally (and including, for example, the desirability of accommodating any wish to rehabilitate), and the total effective sentences imposed in comparable cases. Secondly, the total effective sentence imposed on an offender should not constitute a 'crushing' sentence; that is, it should not destroy any reasonable expectation of useful life after release from custody. Generally see Postiglione v The Queen [1997] HCA 26; (1997) 189 CLR 295, 307 - 309 (McHugh J); Jarvis v The Queen (1993) 20 WAR 201, 216 (Anderson J); Johnson v The Queen [2004] HCA 15; (2004) 78 ALJR 616 [21] - [22] (Gummow, Callinan & Heydon JJ); Vlek v The Queen (Unreported, WASCA, Library No 990153, 29 March 1999) 12 (Anderson J); Carr v The State of Western Australia [2006] WASCA 125; (2006) 166 A Crim R 1 [6] (McLure JA), [66] (Buss JA).

45 The maximum penalty for aggravated burglary, contrary to s 401(2) of the Code, is 20 years' imprisonment. The maximum penalty for aggravated assault occasioning bodily harm, contrary to s 317(1) of the Code, is 7 years' imprisonment. The maximum penalty for aggravated sexual penetration without consent, contrary to s 326 of the Code, is 20 years' imprisonment.

46 The primary sentencing considerations for offences of the kind in question are punishment of the offender, and personal and general deterrence. See Thorn v The State of Western Australia [2008] WASCA 36 [49] (Buss JA, Wheeler & Miller JJA agreeing).

47 There is no 'tariff' for offences of the kind in question (or for sex offences generally) because of the great variation that is possible in the circumstances of the offending and the offenders. The sentence to be imposed in a particular case depends on its individual facts and circumstances, having regard to the maximum available penalty and all relevant sentencing considerations. It is important, however, to appreciate what sentences are customarily imposed in cases involving similar offending, for the purpose of avoiding the risk of sentencing becoming idiosyncratic and arbitrary. See The State of Western Australia v Akizuki [2008] WASCA 267; (2008) 192 A Crim R 373 [68] - [69] (Steytler P, McLure JA agreeing).

48 The guidance afforded by comparable cases is flexible rather than rigid. They do not fix an upper or lower limit. The mere fact that a sentence is within the range of other sentences imposed for similar offences does not necessarily establish that there was an appropriate exercise of the sentencing discretion in the particular case. Similarly, the mere fact that a sentence is outside that range does not necessarily establish that the exercise of the sentencing discretion in the particular case miscarried. See Ly v The Queen [2007] NSWCCA 28 [20] (Adams J, Howie & Price JJ agreeing); and R v Baldock [2010] WASCA 170; (2010) 243 FLR 120 [147] (Buss JA).

49 I will examine three previous cases with some features comparable to the appellant's offending. The cases are Ugle v The State of Western Australia [2007] WASCA 199; Cooper v The State of Western Australia [2009] WASCA 37; and Royer v The State of Western Australia [2009] WASCA 139; (2009) 197 A Crim R 319.

50 In Royer, Owen JA summarised the facts and circumstances of the offending in Ugle:

Ugle involved a 36-year-old man who offended against a female complainant of an undetermined age, though not of an age invoking circumstances of aggravation to the charges. Early one morning he knocked on the complainant's window offering her drugs which she refused. He asked to use the toilet, pushed his way past the complainant and entered her house. He pushed her into her bedroom and threatened her with a clothes iron before forcing her to masturbate him. He then threatened her with a crochet needle, pushed her onto her bed, performed cunnilingus then penetrated her with his penis while choking her with his hands around her neck. After he had ejaculated across her abdomen he made her shower then forced her back into the bedroom, made her kneel and penetrated her from behind. He demanded money, assaulted her with the iron and tried to choke her with its cord. After threatening to kill her if she ran or called the police, he stole household items and fled the scene.

The offender absconded from police custody and again while on bail after his initial re-apprehension. When he was formally arraigned he pleaded guilty to one count of aggravated indecent assault, three counts of aggravated sexual penetration without consent and one count of aggravated burglary. He had a history of drug use and was affected by alcohol and amphetamines at the time of these offences. He also had a history of past violent offending, including some sexual offences committed when he was 18 years of age. He was sentenced to 11 years and 1 month's imprisonment, which was in reality 11 years and 4 months due to a calculation error. The sentence was upheld on appeal [78] - [79].

51 The offender in Ugle was given a 10% discount for his late pleas of guilty. See the reasons in Ugle at [26] - [30].

52 The sentencing judge in Ugle said that the offender had 'no real interest in changing his ways and was unlikely to change as a result of treatment' [59]. On appeal to this court, Owen JA (Wheeler JA agreeing) said that the offender 'is presently a serious risk to the community' [63]. His Honour added that, on present indications, unless the offender addressed his sexual deviancy, substance abuse, and domestic and general violence, he would 'continue to be at a high risk of offending and therefore an ongoing danger to the community' [63].

53 Next, Owen JA in Royer reviewed the decision in Cooper:

In Cooper the complainant was a 77-year-old widow who lived alone. The appellant was her 36 year old next door neighbour. In the early hours of the morning the complainant was woken by the presence of a male person in her bed. The intruder was armed with a screwdriver. The intruder got on top of her and when she resisted he forcibly struck her across the right and left side of the forehead. The complainant believed she lost consciousness for a time. The intruder then sucked her breasts and sexually penetrated her vagina with his fingers, her anus with his penis, her mouth with his penis, then her vagina with his penis.

The assault ended when the complainant told the intruder that her sons would soon be arriving and he left at about dawn. The complainant suffered pain which caused her to scream during the sexual assault. She suffered bruising and abrasions to the face, a laceration to her finger, bruising and abrasions to an arm and bruising and lacerations to the vagina. DNA evidence matched that of the appellant's. The appellant denied being the assailant and the matter went to trial. He was charged with one count of aggravated burglary, one count of aggravated assault occasioning bodily harm, one count of aggravated indecent assault and four counts of aggravated sexual penetration without consent. He was convicted and sentenced to 12 years' imprisonment. His subsequent appeal against sentence was dismissed [80] - [81].

54 In Cooper, no pre-sentence report or psychological report was requested by counsel or called for by the trial judge. Defence counsel informed his Honour that the offender had no prior record of violent or sexual offences. He clearly had a problem with alcohol. The offender had a good work history and many references were tendered from people who asserted that his criminal behaviour was out of character. He had a stable relationship with his partner, children and step-children [27].

55 In Royer, the appellant was convicted, on his pleas of guilty, of seven serious offences against a woman aged 62 years. The offences comprised aggravated burglary, deprivation of liberty, threat to kill, aggravated sexual penetration (digital) without consent (two counts), aggravated sexual penetration (penile) without consent, and aggravated assault occasioning bodily harm. Owen JA summarised the facts and circumstances of the offending, as follows:

On 22 May 2008 the appellant had separated from his de facto partner of three years and spent a few nights at a hotel before moving into the house of his mother and stepfather. On the 28 May 2008, after finishing work at 5 pm, the appellant returned to this house and drank twelve stubbies of beer and five cans of over-proofed rum. He took six Ritalin tablets that had been prescribed to his younger brother, walked to the local hospital and obtained a fit-pack containing syringes. He then went to a public toilet nearby and crushed and injected himself with the six Ritalin tablets.

At approximately 7 am on 29 May 2008, the complainant went out of the back door of her house for a cigarette then returned inside and went to the bathroom, leaving the back door unlocked. She saw the appellant run past the bathroom window on the outside of the house. He ran through the unlocked rear door into the house (part of count 1).

The appellant went into the complainant's bedroom and he forced her onto the bed. He conducted an attack on the complainant that lasted about twenty-five minutes. He forcibly stuffed an unspecified piece of material into her mouth, removed all her clothing and tied her hands behind her back (count 2). The complainant had difficulty breathing. He repeatedly told her he was going to kill her during the attack (count 3) and called her a bitch. He said words to the effect : 'we can do this the easy or the hard way'.

He placed a pillow over her face and digitally penetrated her vagina with his finger (count 4). He then turned the complainant over so she was lying on her stomach, moved her legs under her and spat on her anus for lubrication as he penetrated her anus with his finger (count 5). He continued to penetrate the complainant's vagina and anus on numerous occasions using more fingers each time. This caused severe lacerations and bleeding and was very painful. In her victim impact statement the complainant described the pain as 'excruciating' and 'immense'.

The appellant masturbated until his penis was erect and used it to penetrate the complainant's vagina ... until ejaculation (count 6). According to the complainant's statement his penis was inside her for about 2 - 3 minutes. He then struck her twice on the face (count 7), threatened to kill her if she told anyone, and stole $200 from her purse in the kitchen (part of count 1). As he was leaving the house the appellant told the complainant not to move for at least five minutes. He then ran back to his mother's house which was a short distance away and fell asleep on her couch.

The complainant, who had been left naked on the bed, remained where she was for about 10 minutes. Eventually she was able to loosen the cloth from her mouth but could not untie her hands. But she did manage to get off the bed, find her glasses and telephone her daughter for help. After the daughter and a police officer arrived, the complainant was taken to hospital for examination and treatment [6] - [11].

56 The offender in Royer had not previously committed a violent or sexual offence and he had not previously been imprisoned. Most of his prior criminal convictions related to his alcohol and drug addictions. He had committed burglary offences to support his addiction to amphetamines [45].

57 The appellant in Royer was sentenced in the District Court to a total effective sentence of 16 years' imprisonment. His appeal to this court was, by a majority (Owen & Miller JJA, Buss JA dissenting), dismissed.

58 A significant distinction, for sentencing purposes, between the offender in Cooper and the offender in Royer was the reasonably early pleas of guilty by the offender in Royer. The offender in Cooper was convicted after a trial before a judge and jury. However, the pleas of guilty of the offender in Royer were not 'fast-track' pleas in that they were not made at the first available opportunity. Rather, they were made following several court appearances, after a preliminary forensic report became available.

59 In Royer, the sentencing judge was not persuaded that the offender's professed lack of recollection of the events in question was genuine [146]. Initially, he denied having committed the offences and presented a false alibi to the police. However, in the course of his second video-recorded interview with the police, the offender said:

I've done a whole lot of stupid things in my life. I would prefer to have died last Wednesday than for this to happen. If I could take anything I'd ever done back, this would obviously be it (ts 9).

60 Although the majority (Owen & Miller JJA) dismissed the appeal in Royer, their reasoning was materially different.

61 Owen JA expressed the view that it was not possible to reconcile the sentences imposed in Cooper and in Royer:

[I]n my view it is simply not possible to reconcile the sentences imposed in Cooper and in this case. It may well be that the offender in Cooper, and perhaps also Ugle, were fortunate. If Cooper and Ugle are indicative of a range of appropriate sentences I would be forced to the conclusion that the sentence imposed falls outside it. ...

That having been said, if the sentences are looked at without any discount for a not guilty plea, the difference of 3 years and 4 months (Ugle) and 4 years (Cooper), from the term imposed on the appellant is very significant. This is especially so given the exponential effect of a divergence as the length of sentences increases. It is not easy to say that such a result honours the sentencing objective that there should be parity between sentences and consistency in the sentencing process.

The difficulties become even more pronounced if, contrary to what I said in the preceding section, the sentencing judge is taken to have made an allowance for the guilty plea. Suppose, for the sake of argument, his Honour had given a discount of 10%. This would mean, as between Cooper and the appellant, the difference in the starting point was 7 years and 10 months. As between Ugle and the appellant (reverting to the term imposed in Ugle of 11 years and 4 months) the difference in the effective sentence was 4 years and 8 months [87] - [89].

62 Owen JA decided that the total effective sentence of 16 years 'was manifestly excessive and offended the totality principle' [93]. His Honour's reasoning was this:

In my view, and notwithstanding the horrific nature of the circumstances of the crimes, the total term of 16 years was manifestly excessive and offended the totality principle. I say this for two reasons. First, it appears to have been arrived at without giving any, or sufficient, weight to the appellant's pleas of guilty. ... Secondly, the difference between the term of 16 years and the effective terms imposed in Ugle and Cooper is so great (looked at from the perspective of the sentencing regime in force in October 2008) as to raise a serious issue as to whether the objective that there should be parity between sentences and consistency in the sentencing process has been complied with. I have put it in this way because I am not sure whether, strictly speaking, those two cases establish a 'range'. But there are enough points of similarity (especially between Cooper and this case) to require some consideration of the question whether the difference in the length of the terms amounts to a relevant and unacceptable disparity [93].

63 Owen JA characterised the facts and circumstances of the offences in Royer as 'in the worst category of offences of this type' [39] - [40], [104]. His Honour decided that, as a result of this characterisation, the appeal should be dismissed. His Honour concluded, upon the basis of his construction and application of the Sentencing Legislation (Transitional Provisions) Amendment Act 2008 (WA), that a total effective sentence of 16 years' imprisonment for offences that were in the worst category was appropriate [110]. He therefore dismissed the appeal.

64 Miller JA held in Royer that there was no substance in either of the grounds of appeal. His Honour said that the total effective sentence of 16 years' imprisonment was 'a severe sentence, but, in the circumstances of the case, it cannot be said that it infringed either the totality principle or the one transaction rule' [239].

65 I dissented in Royer. I would have allowed the appeal and resentenced the offender to a total effective sentence of 13 years' imprisonment [175]. Although the offences were, without doubt, very serious, I was not persuaded that they were in the worst category for sentencing purposes [172] - [174].

66 In the present case, I have considered other cases with some comparable features, namely the cases referred to in Ugle, Cooper and Royer.

67 The maximum penalty for an offence is reserved for the worst example of the offence. In Bensegger v The Queen [1979] WAR 65, 68, Burt CJ explained the true rule in relation to the use of the maximum penalty. See also Veen v The Queen (No 2) [1988] HCA 14; (1988) 164 CLR 465, 478 (Mason CJ, Brennan, Dawson & Toohey JJ). Cases falling within the worst category, for sentencing purposes, are rare.

68 In the present case, the sentencing judge did not find that the appellant's criminality was in the 'worst category' of offences involving home invasion, multiple counts of aggravated sexual penetration without consent, and aggravated assault occasioning bodily harm. The State did not assert, either before his Honour or on appeal to this court, that the present case was in the worst category.

69 The appellant's offending was, no doubt, very serious. His treatment of the complainant was violent, humiliating and degrading. Unsurprisingly, the complainant has suffered, and will continue to suffer, significant emotional trauma. She was a lady of advanced years who would have thought that she was safe, from criminal behaviour of the kind inflicted by the appellant, in an accommodation complex for senior citizens.

70 The sentencing judge was correct in finding that the aggravated assault occasioning bodily harm and the offences of aggravated sexual penetration without consent were 'at the upper end of the scale' (ts 48). The facts and circumstances which support that conclusion are these:

(a) The element of persistence in the commission of the aggravated burglary. The appellant was not deterred by the locked rear door of the complainant's home unit. He smashed one of the front windows and entered the premises. This was a brazen act. The appellant was unconcerned about the proximity of the complainant's neighbours in the accommodation complex. When he entered the unit, the appellant did not retreat when confronted by the complainant's dog. Also, he did not leave the house when he became aware that the unit was occupied. Ms Stasinski records in her report:

Mr Ugle stated that he heard the shower and became aroused; this is when he decided to sexually assault the victim and steal her necklace.

(b) The sexual attack upon the complainant was unrelenting. It involved repeated sexual penetrations of different kinds, in more than one location in the home unit, over a period of about 30 minutes. The appellant masturbated continuously between each act of penetration in order to maintain an erection.

(c) The complainant was highly vulnerable. She was an elderly widow aged 78 years who lived alone. Her vulnerability was exacerbated at the time of the offending in that she was naked and in the bathroom. The appellant took advantage of this vulnerability to commit the sexual offences.

(d) The appellant persisted in offending against the complainant despite the complainant having repeatedly cried out in pain and having told the appellant that he was hurting her.

(e) The appellant used actual violence against the complainant. Although the violence was not severe, the complainant would have understood that additional or more serious violence may have occurred if she did not cooperate.

(f) The violent nature of the assaults is reflected in the injuries suffered by the complainant. Dr Penelope Yeung, a medical practitioner who examined the complainant on 3 June 2010, about five hours after the offences were committed, said in a report dated 13 August 2010 that the genital injuries suffered by the complainant were significant. She said that injuries of this kind are not common in those alleging recent vaginal or anal penetration.

(g) Some aspects of the sexual assaults, notably count 8, were especially disgusting for the complainant.

(h) The appellant committed the offences in question while he was on bail for other offences. This reveals a blatant disregard for the law. It underscores the need for personal deterrence. See Pop v The Queen [2000] WASCA 283; (2000) 116 A Crim R 398 [6] - [14] (Wallwork J), [87] - [90] (McKechnie J); Colangelo v The State of Western Australia [2004] WASCA 294 [25] (McKechnie J, Templeman & McLure JJ agreeing); The State of Western Australia v Wynne [2008] WASCA 195; (2008) 188 A Crim R 502 [95] (Miller JA, Steytler P & Murray AJA agreeing); The State of Western Australia v Atherton [2009] WASCA 148; (2009) 197 A Crim R 119 [165] (Buss JA).

71 Ordinarily, an offender's youth is a significant mitigating factor. This reflects the view that the interests of the community are best served by determined efforts to rehabilitate a youthful offender (including a very young adult). A very young adult may be impressionable, impulsive and less cognisant of the seriousness of particular offending than an older person. Also, a lengthy term of imprisonment will ordinarily be a heavier burden on a very young adult. However, youth must be weighed against the facts and circumstances of the offences which have been committed. A substantial custodial sentence may be required in an appropriate case, despite the offender's youth, in order properly to reflect the need to protect the public or a section of it, and the need for personal and general deterrence. See Ainsworth v D (a child) (1992) 7 WAR 102, 117 (Malcolm CJ, Franklyn & White JJ agreeing).

72 In the present case, the appellant's offending was at the upper end of the range of seriousness for offending of the kind committed. The degree of objective seriousness of the appellant's offending required that the mitigating effect of his youth be significantly reduced in determining the appropriate sentencing disposition. Although he had not previously committed sexual offences against women, the appellant had previously committed acts of violence towards them. He had little insight into his reasons or motivation for offending. On the basis of the pre-sentence and psychological reports, the sentencing judge found that the appellant was, at present, 'a danger to the community' (ts 45).

73 In Cameron v The Queen [2002] HCA 6; (2002) 209 CLR 339, Gaudron, Gummow and Callinan JJ referred to the common law rule that a person should not be penalised for exercising the right to trial [18]. A little later, their Honours explained the rationale for the rule that a plea of guilty may be taken into account in mitigation. They said:

[T]he issue is to what extent the plea is indicative of remorse, acceptance of responsibility and willingness to facilitate the course of justice [22].

74 In Bahar v The Queen [2011] WASCA 249; (2011) 255 FLR 80, McLure P (Martin CJ & Mazza J agreeing) referred to Cameron and then said:

The practical consequence of the fact that a plea of guilty is mitigatory is that, all other sentencing considerations being equal (which they usually never are), an offender who pleads guilty will ordinarily receive a lesser sentence than a co-offender who pleads not guilty. However, as explained by the High Court in Cameron, it is not the mere plea of guilty that produces that outcome but rather the fact that the plea supports an inference of remorse, acceptance of responsibility and a willingness to facilitate the course of justice [41]. (emphasis added)

75 The chronology culminating in the appellant's pleas of guilty was as follows:

(b) On 2 June 2010, the appellant was arrested. He made limited admissions to the police during a video-recorded interview. He did not, however, accept responsibility for all of the offences.

(d) On 3 June, 25 June, 15 September and 22 September 2010, the appellant appeared in the Magistrates Court.

(e) On 18 June 2010, the appellant's lawyer wrote to the police officer in charge of the sexual assault squad offering to plead guilty to some of the alleged offences in discharge of the whole of the State's case. (Defence counsel informed the sentencing judge that the offences to which the appellant had offered to plead guilty were those of which he had a clear recollection.) The appellant's lawyer followed up his initial letter to the police officer with correspondence to the Director of Public Prosecutions sent on 25 June, 10 August and 9 September 2010.

(f) By letter dated 14 September 2010, the Director of Public Prosecutions rejected the offer made by the appellant's lawyer.

(g) On 22 September 2010, a magistrate committed the appellant for trial in the District Court. His first appearance in the District Court was scheduled for 10 December 2010.

(h) The Director of Public Prosecutions' brief for prosecution is dated 14 October 2010 and was filed in the District Court on that date.

(i) The indictment is dated 28 November 2010 and was filed in the District Court on that date.

(j) On 10 December 2010, the appellant appeared in the District Court. His counsel informed the court that the appellant would be pleading guilty to the counts in the indictment.

(k) On 20 December 2010, the appellant appeared in the District Court and entered pleas of guilty.

76 Accordingly, the appellant did not enter pleas of guilty at the earliest opportunity. Although he offered to plead guilty to some of the charges (being those in respect of which he allegedly had a clear recollection), he did not actually plead guilty to them at that time. The pleas of guilty were not entered until after the appellant's lawyer had received the brief for prosecution and the appellant had been committed to the District Court for trial.

77 The sentencing judge accepted that the appellant felt shame about his offending and that he had some degree of remorse. His Honour doubted that the appellant had the capacity for any substantial or deep remorse. The author of the pre-sentence report noted that the appellant had limited victim empathy, he appeared unable to accept responsibility for the offences and he blamed, or attributed his behaviour to, external factors. However, his Honour found that the pleas of guilty were an acceptance of responsibility on the appellant's part. All of these matters were relevant in deciding upon the extent of the discount to be given for the appellant's pleas.

78 The pleas of guilty must also be considered in the context of the appellant's knowledge of the State's case against him. The case was overwhelming. In particular:

(a) The appellant was apprehended only a short time after the offences, not far from the complainant's place of residence, while he was wearing clothing matching the description provided by the complainant.

(b) The appellant made some admissions during his video-recorded interview with the police.

(c) A DNA profile obtained from material under the complainant's finger nails, and from semen ejaculated by the offender in the course of the offending, matched the appellant's DNA profile.

(d) The complainant was fully proofed by the prosecutor, and was willing and able to give evidence at the trial in relation to all counts in the indictment.

79 The appellant's pleas of guilty were, to some extent, a recognition of the inevitable. However, the pleas did spare the complainant from the undoubted trauma of having to give evidence about the offences. For this reason, the sentencing judge described the pleas as having 'real utility' (ts 46).

80 His Honour properly took the pleas of guilty into account in mitigation, but not to the extent that he would have done if they had been fast-track pleas (ts 46).

81 In my opinion, the total effective sentence of 11 years' imprisonment was high. It may correctly be described as a severe sentence, but I am not persuaded that it infringed the totality principle.

82 When the mitigating factors are examined and weighed together with the facts and circumstances of the offending conduct, in the context of:

(a) the sentencing judge's finding that the appellant was, at present, a danger to the community; and

(b) the sentencing dispositions imposed in other cases with at least some comparable features to the present case,

it cannot reasonably be concluded that the total effective sentence of 11 years' imprisonment infringed the first limb of the totality principle.

83 The degree of seriousness of the offending precluded the imposition of a lesser sentence, despite the appellant's youth and the other matters of mitigation. The protection of women (in particular, elderly and vulnerable women) and personal and general deterrence were important sentencing considerations. The total effective sentence was a just and appropriate measure of the appellant's total criminality after taking into account all relevant circumstances, including those referable to him personally and the date on which he will complete all of his current sentences (namely, 1 August 2022) if he is not released on parole.

84 If the appellant is not released on parole, he will be 30 years of age when he completes his current sentences. This is, no doubt, a heavy burden for him. However, the appellant will still be a relatively young man when he is released. He appears to have support from his mother, grandmother and siblings. The total effective sentence does not destroy any reasonable prospect of a useful life after release, and it cannot be regarded as 'crushing' in the relevant sense.

87 MAZZA JA: I have had the advantage of reading the draft reasons of Buss JA. I agree that, although the total effective sentence of 11 years' imprisonment was a severe sentence, it did not infringe the totality principle. I respectfully adopt his Honour's reasons for arriving at this conclusion. I wish to make some additional comments with respect to:

(b) the case of Cooper v The State of Western Australia [2009] WASCA 37; and

88 Section 6(1) of the Sentencing Act 1995 (WA) (the Act) lays down the fundamental principle that a sentence must be commensurate with the seriousness of the offence. Section 6(2) of the Act sets out the factors which must be taken into account to assess the seriousness of an offence. One of those factors is the circumstances of the commission of the offence 'including the vulnerability of any victim of the offence': s 6(2)(b).

89 Generally, the more vulnerable the victim, the more serious the circumstances of the commission of the offence become. The reasons for this are not difficult to see. Those in the community who are vulnerable are usually easier targets for offenders and are less able and often have no ability to protect themselves from harm.

90 In the present case, the complainant was particularly vulnerable, thus making the circumstances of the commission of the offences, which were already very serious, even more serious. She was vulnerable because of her age and by the fact that she was disturbed while naked having just left

her shower. The learned sentencing judge emphasised in his sentencing remarks the complainant's vulnerability. He was right to do so.

91 Buss JA has set out the facts and circumstances of Cooper v The State of Western Australia. I regard the total effective sentence of 12 years' imprisonment imposed in that case, after trial, as being, in the circumstances, lenient. Of course, the outcome in one case cannot be regarded as representing a range of sentences customarily imposed.

92 Finally, senior counsel for the respondent, in his oral submissions, when dealing with the appellant's youth, submitted that there was 'nothing in this case to suggest that the appellant's relative youth was a significant contributing factor to his offending': appeal ts 16. Insofar as this submission might suggest that for youth to be mitigatory, it must be shown to have somehow impacted directly on the offending, the submission must be rejected. An offender's youth is considered a substantial mitigatory factor, in most cases, because it is assumed that a youthful offender does not have the maturity and judgment that an older person is thought to possess and because a younger person is regarded as having better prospects of rehabilitation. Accordingly, the youth of an offender will generally justify a lower sentence, regardless of whether it was a significant contributing factor to the offending.

Legislation (Transitional Provisions) Amendment Act 2008

UGLE -v- THE STATE OF WESTERN AUSTRALIA [2012] WASCA 104 (10 May 2012)

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UGLE -v- THE STATE OF WESTERN AUSTRALIA [2012] WASCA 104 (10 May 2012)

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