UGLE -v- THE STATE OF WESTERN AUSTRALIA [2022] WASCA 135 (21 October 2022)

Aggravated sexual penetration of S without her consent by performing cunnilingus

Aggravated sexual penetration of S without her consent by introducing his penis into her mouth

Aggravated sexual penetration of S without her consent by penetrating her vagina with his penis

Aggravated sexual penetration of S without her consent by penetrating her anus with his finger

Aggravated sexual penetration of S without her consent by penetrating her vagina with his finger

Aggravated sexual penetration of S without her consent by performing cunnilingus

Aggravated sexual penetration of S without her consent by penetrating her vagina with his penis

1. The appellant now appeals against these sentences on the sole ground that the total effective sentence of 23 years 6 months' imprisonment infringes both limbs of the totality principle. The appellant requires an extension of time in which to appeal. The applications for an extension of time and for leave to appeal have been referred to the hearing of the appeal.
2. For the following reasons, we would grant an extension of time and leave to appeal. However, in our view the appeal should be dismissed.

1. The trial judge made the following unchallenged findings as to the circumstances of the offences.[1]
2. At about 11.20 pm on 6 July 2019, S (then aged 24 years) and her friend P (then aged 42 years) returned to S's home so that P could retrieve her brother's mobile phone. P's brother was in an on-again and off-again relationship with S.
3. About five minutes after S and P parked their vehicle and entered the home, the appellant, Mark Ronald Herz and two unidentified males approached the residence in Mr Herz's vehicle.
4. The appellant had met S on one occasion approximately a month earlier at a mutual friend's residence for the purpose of purchasing methylamphetamine from her. While the appellant had S's mobile telephone number and had attempted to call her a number of times since that first meeting, she had avoided his calls. S had not provided the appellant with her residential address.
5. The appellant obtained S's residential address through P's brother. He planned a 'run-through' robbery of S's house. The appellant knew S was a low-level drug user and dealer and assumed that S would have large quantities of cash on her premises.
6. Mr Herz parked his vehicle approximately 100 ‑ 200 m down the road, just out of sight of the residence and just out of view of a CCTV camera. One of the unidentified males remained in the car as the driver, while the other unidentified male stood outside as lookout.

Counts 1 - 3: aggravated home burglary and deprivation of liberty

1. At approximately 11.26 pm, the appellant and Mr Herz approached the front door of S's residence and knocked on it loudly. S, who was not expecting anyone at that time of the evening, approached the front door yelling out, 'Who is it?' Either the appellant or Mr Herz responded, 'The neighbours'. S, who had a very good relationship with her neighbours, assumed that something may have been wrong. She approached the front door and opened it slightly to see who was there.
2. The appellant and Mr Herz physically forced open the door. The appellant was armed with a tomahawk axe, which he held at waist height. His hands were covered by what appeared to be dark-coloured socks. S screamed in terror and ran towards the open-plan living area at the back of the house. P, who was standing in the hallway preparing to leave, was terrified at the sight of the two men and the tomahawk axe. As the two men walked past P, one of them said, 'What's she doing here?' and, 'You're not going anywhere'. At this time, one of the unidentified men raced towards the front door where he remained guarding the post.
3. S and P were separated in the open-plan area. S was kept in the dining room by the appellant, who was armed with the tomahawk axe. P was kept on the couch in the living room and was stood over by Mr Herz. P's handbag, which contained all of her personal belongings, was removed from her and placed at the end of the couch. The appellant instructed P not to attempt to retrieve any of her belongings. The appellant directed S to hand over all mobile phones, as well as her house and car keys. S complied. The appellant and Mr Herz acted to prevent S and P from leaving the home or contacting anyone to seek assistance.
4. At this point, S recognised the appellant, who immediately began demanding money from S while armed with the tomahawk axe. S told the appellant that she did not have any cash. She showed the appellant her $40 bank account balance on her mobile phone. The appellant demanded $4,000 and stated that, if he did not receive the cash, he would steal everything in the home as well as her car.
5. S was scared, upset and in shock. She began to cry. S was then instructed to sit on the couch with P while the appellant 'trashed' her home looking for cash and valuable items to steal. Mr Herz stood guard over S and P. The appellant reversed S's BMW vehicle into the garage and shut the garage door so that he could load stolen items into its boot. The appellant had socks on his hands as he did this to avoid leaving fingerprints at the scene.
6. While the appellant was doing this, the tomahawk axe was left on the couch. At some point, Mr Herz picked up the tomahawk axe and placed it behind his back. At one stage, S stood up from the couch because she wanted to know what the appellant was doing. Mr Herz told her to sit down and be quiet otherwise she would make matters worse.
7. In the garage, the appellant discovered the CCTV equipment and realised that he and Mr Herz had been captured on CCTV arriving that night. The appellant was agitated and concerned about erasing the evidence from the CCTV. He took S into the garage and demanded that she delete the footage. She attempted to do so but could not as the device was in the middle of a software update. This angered the appellant. He removed the CCTV recorder and hard drive and bundled them into the boot of S's car together with all the other items that he had taken from her home. The items stolen from S's home that night included a number of handbags, two tablets and a laptop, various accessories and the CCTV hard drive and recorder.
8. The commission of this stealing offence while in S's residence without her consent, while armed and in company, constituted the aggravated home burglary offence charged in count 1 of the indictment. The unlawful detention of S and P was the subject of counts 2 and 3 on the indictment respectively. The judge found that the appellant was the principal offender in respect of these offences. Mr Herz aided and assisted the appellant in the commission of the offences by playing a crucial role as 'added muscle and intimidation' and by standing guard over S and P so that they were unable to take any steps to protect themselves, escape the situation or call for assistance.
9. While committing these offences, the appellant and Mr Herz each, at various times, took active steps to ensure that S and P were unable to leave the premises of their own free will. Their belongings were removed from them, including their mobile phones and car keys, thus preventing them from seeking assistance or fleeing from the scene. The appellant was armed with an offensive weapon, which he swung around aggressively. The appellant threatened to harm S, P and P's family (including her three young children) if they did not accede to all his demands. The appellant threatened both S and P that, if they tried to leave or if they attempted to call the police, he would hurt them or kill them with the tomahawk axe.
10. Both S and P felt terrified and helpless and 'absolutely feared' being seriously harmed by the tomahawk. They felt intimidated and scared and held against their will. They feared that they would be killed if they tried to leave the house. They both tried to pacify the appellant and Mr Herz and do as they were instructed out of absolute fear in order to survive.

1. The appellant became very agitated about the lack of cash that he had assumed would be in S's home. P was terrified at this point and was willing to do anything to ensure her safety, the safety of her family, and the safety of S. She therefore offered the appellant money from her bank account because she believed that it was a way that they could escape. She was desperate. She told the appellant, 'If you need money, take mine if we can go. If you can let us go, take whatever you need'.
2. The appellant and Mr Herz agreed that Mr Herz would escort P to an ATM machine in order to obtain the cash. The appellant threatened S with the axe, holding it above her head and threatening to kill her and P's family, if P called the police or failed to return with the cash.
3. Mr Herz escorted P to her car. P drove to an ATM machine where she withdrew her daily limit of $1,000 cash. When they returned to S's residence, Mr Herz gave the $1,000 to the appellant. The appellant then gave an amount of cash to Mr Herz and thanked him for his assistance.
4. The appellant was still intent on obtaining a larger quantity of cash and was not happy with the $1,000. After some discussion about her bank limit, the appellant demanded that P continue to withdraw $1,000 a day for the next three days to give him $4,000. The appellant told P that he would keep S hostage until he received the full amount. The appellant made further threats to kill S, P and P's family if P did not comply with the demands. While making these threats, the appellant took a photo of P's driver's licence on a mobile phone and told her that he knew where she lived. P was petrified.
5. P was then allowed to go and was escorted to her car by Mr Herz. She asked Mr Herz what she should then do. Mr Herz responded, 'You get in your car. You do as he says. He's a man of his word. You need to drive and not call the police. And if you do those things and comply, he won't hurt [S]'. Mr Herz asked P for her bankcard PIN, which she gave him. P then left and did not alert authorities because of her fear about the threats made by the appellant. The appellant then told Mr Herz he could leave, and Mr Herz did so.

Counts 5 and 6: aggravated sexual penetration without consent

1. After Mr Herz and P first left to withdraw the money from the ATM, S was left alone sitting on the lounge next to the appellant. The appellant, who was holding the tomahawk in one hand, started touching S's leg with his other hand. She became extremely upset, and she told the appellant that she did not want to do anything sexual or physical with him.
2. The appellant was angered by that response and said words to the effect, 'Come on, why don't you want to have sex with me?' Ignoring S's refusals, he began pulling her leggings down. She cried and told the appellant, 'No'. This did not deter appellant. Once S's leggings and underwear had been pulled down, and she was face down in a submissive position on the couch with the appellant standing over her, the appellant started recording S with her own mobile phone. The appellant repeatedly said things to S like, 'Can I have it?' and, 'Are you letting me have it?' She replied, 'Yes', out of absolute fear. She was clearly simply complying with the appellant's demands. The tomahawk axe was right next to her on the couch.
3. The appellant then started touching S's vagina with his hand, and forcefully inserted his finger inside her vagina (count 5). The penetrations were deep, forceful, and violent in nature. S was in pain and discomfort.
4. The appellant then pulled his pants down and his penis was erect. The appellant forced his penis inside S's mouth and pushed her head backwards and forwards with his hand in an aggressive, physically forceful and controlling manner (count 6). The appellant said to S, 'Come here and suck on it. Hurry up. Come on, suck the fuck out of it now'. This was again recorded by the appellant. Whilst violating S, the appellant told her to tell him things like she 'loved sucking it'. She was forced to repeat those words whilst gagging because of the repeated penetration of the appellant's penis inside her mouth. S looked terrified and she was visibly shaking during this violation.
5. S was clearly terrified of what the appellant may do to her if she did not accede to his demands. The whole time the appellant was offending against S, he was clearly using the tomahawk to control and intimidate her.
6. When the appellant removed his penis from S's mouth, S cowered and attempted to shield her genitals from the appellant. The appellant then said to S, 'Can I have it?' and, 'Are you letting me have it?' She responded affirmatively, appearing to be in fear. The appellant then exposed S's vagina, touching the outer lips of her vagina with his fingers saying, 'Oh, look at that', while recording her.
7. S clearly never consented to those sexual acts. They were forced on her by the appellant through physical force, aggression, and intimidation with the offensive weapon with which he was armed.
8. The appellant directed S to shower in her ensuite shower once these sexual assaults, which together lasted a few minutes, concluded. The appellant carried the mobile phone, S's car keys and the tomahawk as he walked with S into the ensuite bathroom where he then filmed her showering naked.

1. Earlier in the evening when the appellant was making demands for money from S, she saw Mr Herz notice a bag of methylamphetamine on the kitchen bench. S offered it to the appellant and Mr Herz in the hope of de-escalating the situation and pacifying them. The appellant expressed concern that there might be something wrong with the drugs. He told P to inject some to make sure that the drugs were okay. P had never previously injected methylamphetamine. S stepped in and offered to be injected with it. She allowed the appellant to inject her with the methylamphetamine for that purpose.
2. After Mr Herz and P left the property for the second time, the appellant was hungry, and directed S into her vehicle to drive through a McDonald's drive-through. At this stage, S was tired, scared, and felt helpless in the situation. The appellant bought food and drinks at the drive-through, which were taken back to S's home and which he consumed. After eating, the appellant rang Mr Herz and arranged for him to return to S's residence to deliver methylamphetamine. Mr Herz did so, and the appellant then mixed two syringes of the methylamphetamine.
3. The appellant injected himself with one syringe, and then directed S to inject herself with the other. She refused because she had already been injected with methylamphetamine earlier in the night. The appellant became very angry and threatened that, if S did not inject herself, he would make her take the whole bag (count 7). S was very fearful of an overdose and the possibility of a cardiac arrest but felt compelled by the appellant's threat to inject herself with the syringe of methylamphetamine. Afterwards she felt sick, dizzy and scared, and was slumped on the couch.

Counts 8 - 11 and 13 - 14: aggravated sexual penetration without consent

1. After S was forced to inject herself with methylamphetamine, the appellant stood up from the couch and turned off all the lights in the house. He directed S into the master bedroom. She complied out of fear because the appellant was still armed with the tomahawk.
2. While in the bedroom, the appellant asked for the PIN code to P's brother's mobile phone, which had been given to the appellant earlier in the night. The appellant started reading P's brother's text messages on the phone. The appellant became very angry when he read messages exchanged between P's brother and the appellant's former partner, which the appellant considered showed that they had been 'sleeping together' behind his back. The appellant then told S that this meant he could do whatever he wanted to her as payback.
3. The appellant first tried to kiss S on the bed, then took off her clothes so that she was naked. She was crying and extremely upset. The appellant then put his head between her legs and inserted his tongue inside her vagina (count 8). As the appellant did so, he was filming and talking to the mobile phone as if he were talking to P's brother.
4. The appellant then forcefully grabbed S's head and forced her to perform fellatio on him, penetrating her mouth with his penis (count 9). S was crying and telling the appellant that she did not want to, which the appellant ignored. The appellant forced her head backwards and forwards with his hand. The tomahawk was next to him whilst this violation occurred. The appellant then inserted his penis into S's vagina (count 10). She could feel the penetration. The appellant was not wearing a condom.
5. S became distraught because she was in pain, and she could see herself bleeding due to the aggressive manner in which the appellant was penetrating her. The appellant saw the blood, stopped, and directed S to get into the ensuite shower. The blood stemming from S's vagina was on herself, the appellant and the doona cover. Shortly before S got into the shower, the appellant inserted his finger into her anus (count 11).
6. S then showered as directed by the appellant to wash the blood off her legs. The appellant entered the ensuite shower behind her and unsuccessfully attempted to insert his penis into her vagina from behind. When the appellant and S got out of the shower, the appellant threw a blanket over the bloodied doona cover and told S to get back on the bed. The appellant then performed cunnilingus on S again by penetrating her vagina with his tongue, while the tomahawk was next to him (count 13). The appellant again penetrated S's vagina with his penis (count 14). Again, he was not wearing a condom. The penetration was extremely forceful and aggressive and caused S immediate pain and discomfort. She could also feel pain in her lower stomach area. She felt herself starting to bleed again from her vagina, but this did not deter the appellant and he continued to violate her. S was crying the whole time and was clearly distressed.
7. When S cried, the appellant would respond with fits of anger and tell her to stop crying, to start acting like she was enjoying it, and to 'just snap out of it'. The appellant did not ejaculate during any of these offences.

1. The sexual offending lasted approximately three to four hours, and the sexual acts were forced on S without her consent through the use of intimidation, control, and threats of violence and harm. The trial judge described the offences as a 'traumatic and enduring, abhorrent' violation of a vulnerable young woman in her own home. S continued to bleed from the genital area even after the appellant's sexual offending against her concluded.

1. During the ordeal, the appellant continued to demand money. S was desperate to facilitate his demands and comply with them as a means of eventually escaping from the appellant. This included, at one point in the early hours of the morning, S and the appellant travelling to North Perth so she could sell a client $100 of methylamphetamine, the payment for which was immediately handed to the appellant. At times, S was therefore allowed to use her mobile phone at the appellant's direction to attempt to obtain money for the sole purpose of meeting his demands.
2. At the conclusion of the sexual assaults against S, the appellant discovered her pink vibrator, which was in a drawer next to her bed. The appellant attempted to switch it on, but it was uncharged. The appellant plugged it in to charge it. At this stage S panicked, believing that the assaults against her would not end.
3. S suggested to the appellant that he and S could drive together to her mother's home, and she could get the money that the appellant desperately wanted. The appellant readily agreed with this suggestion. For some reason, he placed the pink vibrator into the boot together with all of the other stolen goods he had taken from S's home. S drove her vehicle to her mother's home and the appellant sat in the passenger seat. The appellant was armed with the tomahawk.
4. When the appellant and S arrived at S's mother's house at approximately 7.20 am on 7 July 2019, the appellant climbed into the back of the car so he could not be observed from S's mother's home. S was allowed to take her mobile phone with her into her mother's home, but the appellant kept her car keys and house keys in the car. The appellant told S to collect the cash from her mother and to immediately return to the vehicle.
5. S approached the home and started banging on the front door. She eventually gained entry, and ran upstairs towards her mother's bedroom. S's mother saw S racing towards her up the stairs in a highly distressed state, 'white as a sheet', crying and shaking. S told her mother that she had been raped by a man and held all night, and that the man was in her car holding the axe. S's mother immediately called the police to attend.
6. The appellant realised while in the vehicle that S was taking much longer than he had anticipated. The appellant became concerned. He concealed the tomahawk axe underneath the passenger seat in the car, exited the vehicle and started to walk away. The appellant began to run when he heard police sirens. The appellant was pursued on foot by police, who eventually were able to apprehend and arrest him.

1. The trial judge made the following findings as to the impact of the appellant's offending on S and P.

1. The trauma of the appellant's offending against S was understandably devastating and widespread. S struggled with severe anxiety, obsessive compulsive disorder symptoms, depression, insomnia, nightmares, disassociation, intrusive thoughts and images from the event, and flashbacks. She had suicidal thoughts and made suicide attempts, which required admission to hospital.
2. S also suffered a loss of self-esteem and worth, shame, constant negative thoughts, a loss of pride, loss of confidence, negative treatment of herself, loss of self-care, fear of living alone, and a loss of sense of safety. She lost the ability to maintain positive and meaningful relationships in her life. S avoided close friends and family and became very isolated. She stopped engaging in personal pursuits that she once enjoyed. She had a fear of intimacy and avoided romantic relationships.
3. Because of the severity of S's trauma, she developed psychogenic non‑epileptic seizures, and had been hospitalised on three occasions, both in Perth and overseas where she was seeking treatment. She developed disordered eating and become very underweight. She had muscle tension and frequent headaches, constipation, fatigue, feeling close to panic and a weak immune system. She abused alcohol, prescription medication, illicit drugs and nicotine as a negative means of coping, experiencing multiple overdoses which required emergency hospital admissions.
4. S had to defer her university studies and lost her capacity to be functioning in a workplace, and therefore was unable to re-engage with employment. She suffered extreme debt, including being $30,000 in arrears on her mortgage payments. At the time of the offending, S was living in her newly built home for less than a year. Since the offending, S had been too traumatised to return to the property and may never do so. She incurred monthly storage facility fees for furniture and belongings, due to her inability to return to her own home as well as the inability to be able to live independently on her own.

1. The appellant's offending also had an impact on S's mother, who has suffered vicarious trauma. She had also seen a psychologist, had been prescribed medication for depression, and had to take long service leave from work.

1. In the aftermath of believing that she was going to die, P could not leave her home. She installed security cameras due to fear of retribution. She had regularly seen a counsellor since the offending at considerable personal cost. P felt that the offending resulted in a breakdown of trust within her family. P's sense of security had been taken and she felt heightened concern about her children's safety.

1. The trial judge made the following findings as to the appellant's personal circumstances.[5]
2. The appellant was 44 years old at the time of the offending, and 46 years old at the time of sentencing. He was subject to a community‑based order for other offending at the time of the current offending.
3. The appellant had a chaotic, deprived and traumatic upbringing. His father was absent from the home, so the appellant lacked a male role model. The appellant first met his father when he was 13 years old. When the appellant was 22 years old, his father passed away.
4. The appellant was predominantly raised by his grandparents. His childhood was marred by alcohol abuse and domestic violence. The appellant was also subjected to four years of sexual abuse by a male cousin, which commenced when the appellant was approximately 8 years old. The appellant remained in contact with his mother, who was in a nursing home at the time of sentencing. The appellant had two sisters.
5. The appellant was single at the time of sentencing. He had 11 children aged approximately between 6 ‑ 25 years with three former partners.
6. The appellant completed year 12 at high school. Since then, he had been employed in landscaping, plastering, roof tiling, welding, machine operating, managing a marron farm, working in conservation and land management and as a demolition worker. The appellant was also a trainee horticulturalist with the Community Development and Employment Program.
7. The appellant was previously involved in the formation of the Mandurah District Support Service. This involved the appellant, on a voluntary basis with other members, assisting the community with general maintenance on their homes, and performing contract work for Homeswest for those who otherwise would not have been able to afford those services.
8. While in custody, the appellant had been actively engaged in available courses and had completed a variety of occupational training courses.
9. The appellant first commenced use of methylamphetamine at the age of 21 years and had continued to abuse that drug ever since. At the time of this offending, the appellant was involved in commercial drug dealing and was under the influence of methylamphetamine.
10. The appellant had amassed a significant prior criminal record, comprising a large number of convictions for property, violence, drug and traffic offences. These included burglaries (two in 2015), aggravated burglaries (2011, 2015), aggravated robbery (2008) and deprivation of liberty (2008). The appellant had been imprisoned on a number of occasions. He did not have any prior convictions for sexual offences.[6]
11. The trial judge was unable to find genuine remorse or victim empathy in the appellant.

1. The trial judge referred to the maximum penalties for each of the offences.[7] Her Honour noted that, as the appellant was a 'repeat offender' (within the meaning of s 401B of the Code), the minimum penalty for the aggravated home burglary offence was 2 years' immediate imprisonment (s 401(4)(b)(i) of the Code). The judge also noted that, because the aggravated sexual penetration without consent offences were committed during an aggravated home burglary, the minimum penalty for those offences was at least 75% of the maximum term (s 326(2) of the Code).

1. After making findings as to the circumstances of the offences, the trial judge identified, in addition to the traumatic and ongoing impact on S and P, a number of aggravating factors in respect of each offence.[8] With respect to all of the offending, her Honour found an aggravating factor was that the appellant was subject to a community‑based order at the time of the offending.[9]

1. In relation to count 1, the trial judge identified the following aggravating factors:
   1. The appellant was armed with the tomahawk axe which he used to intimidate, threaten and coerce S into complying with his demands.
   2. The appellant gained entry to S's home by a combination of fraudulent means (by identifying himself and Mr Herz as S's neighbours) and physical force, overpowering S to gain entry.
   3. The offence was committed in company.
   4. The appellant knew or ought to have known, immediately before the commission of the offence, that there was another person in the place, particularly given that there were two vehicles parked in the driveway and given the time of evening.
   5. Clearly the place was ordinarily used for human habitation.
   6. The appellant was a repeat offender, which meant that the offending was not out of character or an aberration on the appellant's part but rather was persistent, enduring, entrenched, criminogenic behaviour.
   7. The offence was premeditated, planned and could not be seen as opportunistic offending.
   8. The stolen items included a number of handbags, two tablets, a laptop computer, various accessories and the CCTV hard drive and recorder. These were all items of significant value, although the items were recovered.
   9. The victim was a young, vulnerable woman aged 24 years at the time. The appellant was a 44-year-old man and Mr Herz was a 54-year-old man. This represented a significant power disparity and rendered S particularly vulnerable given that she was a young, slightly built woman who lived alone.
   10. The offending destroyed the sanctuary and safety S ought to have felt within the confines of her own home.
   11. Multiple threats to harm and to kill S were made during the commission of the offence, which added an element of terror for her.

1. In relation to counts 2 and 3, the trial judge identified the following aggravating factors:
   1. The offence was committed in company.
   2. There was a significant power disparity between the offenders and S, who was a young woman living alone, and P, who was the mother of three young children in her forties.
   3. The detention occurred in S's own home, which destroyed the sanctuary and safety she ought to have felt within the confines of her home.
   4. The offences were premeditated and planned.
   5. The appellant was armed with the tomahawk axe while S and P were detained.
   6. Threats of violence and threats to kill were made to S, P and P's family, including P's three young children, during the detention.
   7. The detention was prolonged, extending over at least several hours, and was not fleeting in nature.
   8. For the purposes of unlawfully detaining S and P, the appellant removed their personal belongings, including mobile phones and house and car keys, to prevent them from being able to flee from the scene or to seek assistance. That rendered them particularly vulnerable.

1. In relation to count 4, the trial judge identified the following aggravating factors:
   1. The appellant was in company with Mr Herz, which added a level of intimidation, threat and coercion that was terrifying.
   2. The appellant was armed with the tomahawk axe, which he used to threaten P and her family members, including P's children.
   3. A photograph was taken of P's driver's licence to facilitate threats against her family.
   4. The offence was persistent in nature, and not fleeting or momentary.
   5. $1,000 was stolen from P.

Counts 5, 6, 8 - 11 and 13 - 14: aggravated sexual penetration without consent

1. In relation to counts 5, 6, 8 - 11 and 13 - 14, the trial judge identified the following aggravating factors:
   1. The deplorable violations destroyed, not only the sanctity of S's body, but also the sanctuary of her home.
   2. The offences were committed during an aggravated home burglary.
   3. The appellant was armed with the tomahawk axe, which he used to intimidate, coerce, compel, and subdue S.
   4. While the offending constituted one course of conduct, it nevertheless was persistent, ongoing, repetitive and brutal. The appellant sexually penetrated S persistently over the course of approximately three to four hours.
   5. Collectively, the sexual offending included every conceivable type of penetration of the victim, including cunnilingus, fellatio, penile-vaginal penetration, digital-vaginal penetration, and digital-anal penetration.
   6. The appellant recorded the sexual offences.
   7. The appellant did not wear a condom when penetrating S's vagina with his penis, which carried the potential for pregnancy and the risk of sexually transmitted disease.
   8. The victim S cried during the sexual penetrations and pleaded with the appellant to stop, which did nothing to deter him from continuing to violate her. The appellant also berated S for not acting like she was enjoying the abuse.
   9. The sexual penetrations were violent and forceful in nature.

1. In relation to count 7, the trial judge identified the following aggravating factors:
   1. The offence occurred in S's own home, which ought to have been a sanctuary for her and a safe place.
   2. The appellant compelled S to inject herself with methylamphetamine despite knowing that she had injected with methylamphetamine earlier in the evening, which showed an utter and complete disregard for her welfare given the obvious potential risk of overdosing.
   3. The offence occurred in the context of and during the course of sexual offending against the victim and was likely committed to facilitate further sexual offending against her, which then did take place.
   4. The appellant was armed with the tomahawk when committing this offence, which added a level of fear, coercion, and intimidation for S.
   5. S, being a 24-year-old slightly built young woman living alone was a particularly vulnerable victim to this kind of offending, and no match whatsoever for a 44-year-old male armed with an offensive weapon.

1. The trial judge found that there were only two mitigating factors in the appellant's favour:[10]
   1. The appellant was entitled to some mitigation to reflect assistance to the administration of justice, given that there were matters that the State was not required to strictly prove following discussions between the State and the appellant's counsel. However, in the context of the seriousness of the appellant's offending, that matter in mitigation carried little weight.
   2. The appellant had a deprived childhood which, although it did not appear to have resulted in mental disability or significant mental health issues, was relevant in the sense explained in Bugmy v The Queen.[11] However, the weight to be given to that mitigatory factor was reduced by the overall importance of both personal deterrence and community protection, having regard to the nature and seriousness of the offending in the context of the appellant's long history of prior offending.

1. The trial judge then imposed the individual sentences noted in the table at [3] above. The trial judge turned to the question of totality. As this aspect of the exercise of the trial judge's sentencing discretion is the subject of this appeal, we will set out her Honour's observati[12]s in full:12

Now, as both counsel have identified one of the main issues in this sentencing exercise is the consideration and application of the principle of totality.

That is, I am to ensure that the total [effective] sentence bears a proper relation to the overall criminality involved in all of the offences viewed in their entirety and having regard to the circumstances of the case including those referrable to you personally.

Further and importantly in this case any sentence imposed should not be such as may be destructive of any reasonable expectation of a useful life after release.

So, Mr Ugle, of course, Mr Rafferty submitted on your behalf to the court that all counts should be served concurrently. He said that that was necessary so as to ensure that both limbs of the totality principle are not breached.

I should also, of course, take into account what's often been referred to as the one transaction rule, given that the offending constitutes one course of conduct.

However, taking those matters in to consideration in my view it is appropriate for some slight accumulation, which will more properly reflect the overall criminality involved and the serious nature of your offending, but will nevertheless not be a sentence which will be crushing on you.

I say some accumulation is appropriate, because the offences which you committed were inherently and intrinsically serious for the reasons that I have already articulated.

They certainly could not be described as being at the lower end of the scale as far as offences of their kind. They occurred during the course of a very traumatic eight-hour ordeal in respect of [S].

They involve two victims. And in relation to [S] involved every type of sexual violation possible of a young, vulnerable woman in the supposed sanctuary of her own home in circumstances where she was in pain and distress.

The need for a sentence which properly reflects the overall grave criminality involved in the offending viewed as a whole and which also properly reflects the need for both general and personal deterrence, and the protection of the community from this kind of abhorrent offending in my view is only appropriately reflected by some small measure of accumulation.

I have also, of course, considered the one transaction rule. I note that there is, of course, no such fixed or rigid approach as far as sentencing is concerned.

And in this particular case the offending took place over eight hours and involved 13 separate and individual serious examples of offending behaviour, and involved two victims.

In those circumstances in my view it's appropriate to depart from any strict application of the one transaction rule.

Therefore, taking all relevant factors in to consideration in my opinion the overall criminality of the offending warrants a total [effective] sentence of 23 years and six months.

1. The trial judge achieved this result by ordering that the sentences for counts 1 and 14 be served cumulatively upon each other, with all other counts being served concurrently. All sentences were ordered to be served concurrently with a 2‑year sentence imposed by the Magistrates Court on 31 May 2021 in respect of an unrelated home burglary offence. The sentence was backdated to 29 July 2019 and the appellant was made eligible for parole.[13]

1. The appellant says that there is limited appellate authority concerning offenders who are subject to the statutory minimum penalty prescribed by s 326(2) of the Code.[14] The appellant submits that this court should consider cases determined prior to the enactment of the statutory minimum penalties, as well as examples of sentences imposed in the most serious sexual offending this court has considered, in determining the appropriateness of the aggregate sentence imposed in this case.[15]
2. In that regard, counsel for the appellant refers to two cases in which total effective sentences of 13 years' imprisonment were either upheld or imposed by this court for serious series of sexual assaults committed against adult victims during burglaries:
   1. Atkinson v The State of Western Australia,[16] where there were two victims assaulted on two separate occasions, one of which came to light on voluntary disclosure by the offender, to which the offender pleaded guilty; and
   2. Eravelly v The State of Western Australia,[17] where there was a single victim who was assaulted on a single occasion and the offender was convicted after trial.
3. Counsel also refers to two serious cases of sexual offending against adult victims, which did not involve burglaries, where sentences of 11 and 12.5 years' imprisonment imposed after trial were upheld on appeal.[18] Reference is also made to very serious cases of sexual abuse against children, including the extraordinarily serious cases of SCN v The State of Western Australia,[19] and SAL v The State of Western Australia.[20] In those cases, the court upheld total effective sentences of 22 years 6 months' imprisonment and 28 years' imprisonment respectively on pleas of guilty to a very large number of offences, primarily against the offenders' children, which often involved third parties.
4. While recognising the seriousness of the appellant's offending, counsel for the appellant submits that, having regard to the specific acts involved in each offence of aggravated sexual penetration without consent and the range of sentences imposed for other offences of egregious sexual offending, the aggregate sentence imposed in this case is manifestly excessive. The primary basis for that submission is that:[21]

a) The complainant [S], although objectively young, was an adult.
>
> b) The offending was not overtly perverse, nor deviant.
>
> c) The offending occurred within a single course of conduct over one evening.
>
> d) There were no other individuals present during the sexual offending and the recordings were not disseminated.
>
> e) The appellant was not committing a breach of trust when he engaged in the conduct.
>
> f) The complainant [S] was not continually assaulted in a non‑sexual manner to facilitate the offending conduct; and
>
> g) When compared to other cases involving objectively more serious circumstances, despite the absence of a statutory minimum term, the sentence of 23 years' and 6 months' imprisonment is significantly higher than that which ought to have been imposed.

1. For the following reasons, in our view the sole ground of appeal is not established.

1. The general principles applicable to appeals of the type brought by the appellant in this case are well established and have been described in many cases decided by this court. This court may only intervene when material error is established. It is not enough that this court disagrees with the sentence imposed. Where, as in this case, the appellant relies upon implied error, it must be demonstrated, after a consideration of all relevant facts and circumstances, that the outcome was unreasonable or plainly unjust.[22]
2. The totality principle comprises two limbs. A generally accepted statement of the totality principle was made by McLure JA in Roffey v The State of Western Australia:[23]

The appellant relies on the totality principle which comprises two limbs. The first limb is that the total effective sentence must bear a proper relationship to the overall criminality involved in all the offences, viewed in their entirety and having regard to the circumstances of the case, including those referable to the offender personally: Woods v The Queen (1994) 14 WAR 341.

The second limb is that the court should not impose a 'crushing' sentence. The word crushing in this context connotes the destruction of any reasonable expectation of a useful life after release: Martino v The State of Western Australia [2006] WASCA 78 [16]. An aggregate sentence may be inappropriately long under the first limb even if it cannot be described as crushing: Jarvis v The Queen (1998) 20 WAR 201, 216 (Anderson J).

The practical effect of the totality principle is ordinarily to arrive at an aggregate sentence that is less than that which would be arrived at by simply adding up all the terms appropriate for the individual offences: R v Holder [1983] 3 NSWLR 245, 260 (Street CJ). A rationale for the totality principle is that there is assumed rehabilitation and reduced demand for retribution after the initial sentences have been served. Where the principle of totality comes into effect, it is of little importance how the ultimate aggregate is made up: R v Holder (260).

1. As this court observed in Van Zyl v The State of Western Australia,[24] it is unusual, as a matter of fact, for a total effective sentence to be reduced on appeal because it infringed the second limb of the totality principle. This said, the second limb has been invoked in cases where an offender is of advanced age, the rationale being that each year of a sentence represents a substantial proportion of the period of life which is left to an offender of advanced age. The concept underpinning this rationale is essentially mercy.

1. The cases referred to by the appellant suggest that the total effective sentence imposed by the trial judge in this case is out of step with the total effective sentences imposed or upheld by this court in very serious cases of sexual offending. However, a very significant factor to be brought to account in the present case is the minimum mandatory penalty of 15 years' imprisonment provided for an offence of aggravated sexual penetration without consent committed during an aggravated home burglary.[25] That is a factor in the present case which distinguishes the cases to which the appellant's counsel has referred.
2. Provision for a minimum mandatory penalty does not alter the principles to be applied in fixing an appropriate total effective sentence. However, the provision for a minimum mandatory penalty may affect the application of the totality principle by affecting the court's assessment of the overall seriousness of the individual offences, considered as a whole, having regard to all relevant facts and circumstances and all relevant aggravating and mitigating factors, including the offender's personal circumstances and antecedents. In Pearce v The Queen,[26] McHugh, Hayne and Callinan JJ observed, when explaining the importance of ensuring proper sentencing on each count:

To an offender, the only relevant question may be 'how long', and that may suggest that a sentencing judge or appellate court should have regard only to the total effective sentence that is to be or has been imposed on the offender. Such an approach is likely to mask error. A judge sentencing an offender for more than one offence must fix an appropriate sentence for each offence and then consider questions of cumulation or concurrence, as well, of course, as questions of totality [Mill v The Queen [1988] HCA 70; (1988) 166 CLR 59].

...

If, in fixing the appropriate sentence for each offence, proper principle is not applied, orders made for cumulation or concurrence will be made on an imperfect foundation.

1. Consideration of the overall criminality involved in all of an offender's offending therefore begins with an assessment of the criminality involved in individual offences.
2. In providing for very significant minimum mandatory penalties, Parliament has recognised the very serious nature of this offending and has specified a range of the sentences which must be imposed for that kind of offending. Parliament's provision for maximum and minimum mandatory penalties informs the court's assessment of the seriousness of the offending.[27] As was observed in Clark,[28] the minimum mandatory penalty and the maximum penalty operate as a floor and ceiling within which the sentencing discretion must be exercised. The maximum penalty is to be imposed for the worst category of case, while the minimum mandatory penalty is to be imposed for the least serious category of case.
3. In this case, there is no complaint about the individual sentences imposed on the appellant. Consideration of this appeal properly proceeds on the basis that a sentence of 18 years 6 months' imprisonment was commensurate with the seriousness of the offence charged in count 14 of the indictment.
4. The imposition of a very long individual sentence can operate to reduce the imperative to impose additional cumulative sentences. That is because the sentencing objectives of denunciation, rehabilitation, community protection and appropriate punishment are more likely to be satisfied in service of the very long sentence imposed for the individual offence. A very long individual sentence, whether or not it is imposed in a mandatory penalty regime, may therefore moderate the application of the totality principle. It may do so by diminishing the imperative to accumulate individual sentences in order to arrive at a total effective sentence which bears a proper relationship to the overall criminality involved in all of the offending having regard to all relevant sentencing principles and all relevant sentencing factors. Further, in assessing overall criminality, it may also be necessary to take account of mitigating factors which, by reason of a minimum mandatory penalty, cannot reduce an individual sentence or can do so only to a limited extent. However, neither the imposition of a very long individual sentence nor the application of minimum mandatory penalties removes the need for the sentencing court to assess the overall criminality involved in all the offending. The court must still impose a total effective sentence which bears a proper relationship to that overall criminality having regard to all relevant sentencing principles and all relevant sentencing factors.
5. Of course, the absence of any comparable cases does not prevent a conclusion that the total effective sentence in the present case infringes the first limb of the totality principle. It merely has the consequence that this court has no comparable cases to provide a yardstick against which to judge the adequacy of the total effective sentence imposed at first instance.[29] In any event, it is often difficult to find truly comparable cases for the purposes of considering the first limb of the totality principle. A wide variety of combinations of offending conduct, offenders and victims often makes it difficult to identify direct comparators and complicates any attempt to analyse whether the total effective sentence imposed in a particular case reveals a comparatively more severe or lenient approach than that adopted in a different case.[30] In the end, each case must be decided on its own particular facts and circumstances.

1. In our view, it was reasonably open to the trial judge in the present case to regard some degree of accumulation of individual sentences to be called for to reflect the overall seriousness of all the appellant's offending. Counsel for the appellant properly conceded this to be the case. The appellant's complaint on appeal rather concerns the extent of accumulation, which involved adding 5 years' imprisonment to the individual sentence for count 14 to result in a total effective sentence of 23 years 6 months' imprisonment.
2. In assessing the overall criminality involved in the offending considered as a whole it is relevant to take account of the fact that the offences were all committed over a single period of about eight hours. However, it is also relevant to take account of the following circumstances:
   1. The sexual offences against S extended over a period of hours and involved a series of very traumatising sexual penetrations without consent, which themselves justify individual sentences in the range of 16 years 10 months' imprisonment to 18 years 6 months' imprisonment.
   2. The aggravated home burglary offence was itself a serious example of that offence, involving a home invasion in company while armed with the tomahawk axe, which was used to threaten the victims.
   3. The aggravated robbery offence committed against a separate complainant, P, was itself an egregious offence.
   4. Forcing S to inject herself with methylamphetamine, after she had already done so earlier in the evening at the appellant's direction, represented a separate violation of S's personal autonomy and carried the risk of harmful effects.
   5. The sentences imposed by the trial judge were to run concurrently with the 2-year sentence imposed for an unrelated home burglary offence.
   6. Apart from the appellant's deprived childhood, there were no mitigating circumstances which would justify any significant reduction in the otherwise appropriate total effective sentence.
3. Having regard to:
   1. the maximum and minimum mandatory penalties for the appellant's offences;
   2. the overall criminality involved in the commission of those offences viewed in their entirety;
   3. the many aggravating and limited mitigating factors identified by the trial judge; and
   4. all relevant sentencing factors (including the imperative to provide personal and general deterrence and proper punishment),

a total effective sentence of 23 years 6 months' imprisonment was within the discretionary range properly open to the trial judge. The total effective sentence of 23 years 6 months' imprisonment did not infringe the first limb of the totality principle. It was not unreasonable or plainly unjust. Inferred error has not been established.

1. Nor has the appellant established a breach of the second limb of the totality principle. As the State notes, the appellant will be 65 years old when he is eligible for parole and 67 years old on completion of his full term.[31] The total effective sentence is not so long as to deprive the appellant of any reasonable expectation of a useful life on release.

1. As noted above, the appellant requires an extension of time in which to appeal. The delay in instituting the appeal has been explained as resulting from a misunderstanding by the appellant's current lawyer as to whether an appeal notice had already been filed. In the circumstances, it is appropriate to grant an extension of time.
2. While we would grant leave to appeal, for the above reasons, in our view, the appeal should be dismissed. We would make the following orders:
   1. The appellant's application for an extension of time in which to appeal is granted.
   2. Leave to appeal is granted on the sole ground of appeal.
   3. The appeal is dismissed.

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

[7] It may be noted that the trial judge indicated that the maximum penalty for the aggravated robbery offence was life imprisonment (see trial ts 682). While the appellant was clearly armed with the tomahawk axe, the circumstance of aggravation that he was armed with a dangerous or offensive weapon was not pleaded in the indictment. Therefore, the maximum penalty for the aggravated robbery offence was 20 years' imprisonment: see s 7(3) of the Sentencing Act 1995 (WA) and s 392(c) and s 392(d) of the Code. No complaint is made of this error, which may be regarded as immaterial in the circumstances. The sentence for the aggravated robbery offence was ordered to be served wholly concurrently with other sentences.

[11] Bugmy v The Queen [2013] HCA 37; (2013) 249 CLR 571.

[16] Atkinson v The State of Western Australia [2017] WASCA 154.

[17] Eravelly v The State of Western Australia [2018] WASCA 139.

[18] AMH v The State of Western Australia [2016] WASCA 180; NPA v The State of Western Australia [2018] WASCA 131.

[19] SCN v The State of Western Australia [2017] WASCA 138.

[20] SAL v The State of Western Australia [2021] WASCA 192.

[22] See, for example, Kabambi v The State of Western Australia [2019] WASCA 44 [21].

[23] Roffey v The State of Western Australia [2007] WASCA 246 [24] - [26].

[24] Van Zyl v The State of Western Australia [2017] WASCA 1 [21].

[26] Pearce v The Queen [1998] HCA 57; (1998) 194 CLR 610 [45], [47].

[27] See The State of Western Australia v Clark [2020] WASCA 103 [58] - [60].

[30] GUE v The State of Western Australia [2022] WASCA 121 [56].