Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA

Criminal law and procedure - Sentencing - Resentencing after partially successful appeal - Impact of sentences set aside on totality principle - Turns on own facts

Aggregate term reduced from 9 years 4 months imprisonment to 8 years 4 months imprisonment

1 JUDGMENT OF THE COURT: This matter originally came before this court by way of an appeal against the conviction of the applicant for three of a series of offences committed over a period of three days, on 18, 19 and 20 August 2006, against his de facto wife.

2 The indictment upon which the appellant was presented for trial in the District Court contained 13 counts. Apart from an offence of threatening to kill, which was count 5 on the indictment, upon which the jury were unable to reach a verdict, the counts upon which the appellant was convicted and the dates when the offences were allegedly committed were as follows -

3 When passing sentence, the trial judge described the offences of which the appellant was convicted in the following way:

The offences of which you have been convicted, and for which you must now be sentenced, are all serious. They carry maximum terms of imprisonment ranging from 20 years down to seven years. The offending was prolonged and deliberate, and the effect upon the complainant was no doubt terrifying and lasting. She writes in her victim impact statement of having been afraid for her life and she continues to suffer from flashbacks and anxiety.

You subjected her to a degrading and humiliating and frightening ordeal, and your conduct was all the more serious because she was your former partner, from whom you were separated, and who was entitled to the protection of a violence restraining order, but you deliberately ignored her entitlement in that regard. So there is no alternative now but to sentence you to terms of imprisonment of sufficient length to reflect in an appropriate way the seriousness of your conduct (ts 528).

4 For the reasons already published, the majority of this court, Buss and Miller JJA, Murray AJA dissenting, allowed the appeal in part and quashed the convictions for the offences which were counts 3 and 11. A retrial was ordered. The applicant having been convicted of the remaining offences referred to above, over the three-day period, the general description of the appellant's offending behaviour continues to be appropriate.

5 For the counts of aggravated sexual penetration, the sentencing judge imposed terms of 4 years and 10 months imprisonment. He said he did so after making the one-third reduction required by cl 2(1) of Sch 1 to the Sentencing Legislation Amendment and Repeal Act 2003 (WA), a provision concerned with transitional arrangements upon the enactment of the amending legislation.

6 In his reasons on the appeal; [2008] WASCA 232 [23], Buss JA identified a mathematical error in that regard. To reduce a term of 7 years by a third would result in the imposition of a term of 4 years and 8 months imprisonment. As we were given to understand, that mathematical error has now been corrected in relation to the sentences passed for counts 3, 11 and 13 by the sentencing judge, acting under s 37 of the Sentencing Act 1995 (WA).

7 After that correction was made the final outcome of the sentencing process was the imposition of the following sentences:

8 The sentencing judge next, at an appropriate point of the sentencing process, gave attention to the extent to which the sentences should be ordered to be served cumulatively. The way in which his Honour structured the sentences meant that one would start with the 2 years imprisonment for count 1, the offence of aggravated burglary committed on 18 August 2006. Counts 4, 7, 8 and 9, the four offences committed on 19 August 2006 of which the appellant was convicted, were ordered to be served concurrently with each other, but cumulatively upon the other terms imposed. That would therefore add a term of 2 years 8 months imprisonment in aggregate. The sentences for counts 3, 11 and 13, the offences of aggravated sexual penetration without consent, were ordered to be served concurrently with each other, but cumulatively upon the other sentences imposed. After the correction of the sentences for those offences, a term of 4 years 8 months imprisonment was added to the aggregate. The total term imposed was therefore 9 years 4 months imprisonment.

9 Before making the final decision about the extent to which the sentences should be accumulated in their service, the sentencing judge said that the offences before him were not to be regarded as a single course of conduct so that all the sentences should be served concurrently. His Honour said:

There were a number of opportunities in the course of those three days for you to stop what you were doing, to refrain from further offending, but you deliberately chose not to do so.

10 Before reaching the final aggregate term, his Honour remarked that he had regard to the principle of totality but, he said, nothing but a long period of imprisonment would be appropriate, hence the aggregate term of 9 years 4 months imprisonment.

11 The proceedings before this court in relation to sentence arise under the Criminal Appeals Act 2004 (WA), s 41(2), which applies when this court sets aside a sentence, as it has done in this case in relation to the sentences for counts 3 and 11. So far as is material to this case, the court is then given power to vary any other sentence imposed at the same time as those set aside, which took into account a sentence dealt with in that way. As has been seen, that occurred here when the sentencing judge made his decision about the length of the sentences to be imposed for individual offences, the extent to which they should be ordered to be served cumulatively and the effect that would produce in the total term imposed, having regard to the totality principle.

12 The appellant did not submit that any of the terms remaining, including that imposed for the remaining offence of aggravated sexual assault, should be varied in themselves. The submission made was that setting aside the sentences imposed for counts 3 and 11 did not in fact alter the total aggregate term because, while each of the sentences for counts 3, 11 and 13 was ordered to be served concurrently with the others in that group, each was ordered to be served cumulatively upon the other sentences imposed. Therefore, although only count 13 remains, the sentence of 4 years 8 months imposed for that offence is to be served cumulatively upon the other sentences. In the result, the aggregate term remains one of 9 years 4 months imprisonment, comprised of the addition of the terms of 2 years imprisonment for the aggravated burglary committed on 18 August 2006, 2 years 8 months imprisonment for the four offences committed on 19 August 2006, and 4 years 8 months imprisonment for the offence of aggravated sexual penetration without consent committed on 20 August 2006.

13 It was submitted that the court should not lose sight of the fact that, factually, counts 11 and 13 were related incidents which might be regarded as part of an act of sexual intercourse without consent, made up of two acts of sexual penetration only by reason of the withdrawal of the appellant's penis from the complainant's vagina and its reinsertion, amounting to a separate act of sexual penetration, the subject of count 13. The sentence for the first part of the incident having been set aside, so it was argued, there ought to be some reduction in the total term imposed and, it was submitted, that could be achieved by ordering the sentence imposed for count 13 to be served partially concurrently with the aggregate term derived from the other sentences imposed.

14 The respondent conceded that there should be some reduction in the total term imposed, but counsel argued that partial concurrency would make too great a reduction.

15 The other terms imposed, to the extent that they were ordered to be served cumulatively, would achieve an aggregate of 4 years and 8 months imprisonment with eligibility for parole. Therefore the earliest date for the appellant's release on parole in respect of that aggregate term would be after serving 2 years and 8 months. Under s 88(3)(d) and (4) of the Sentencing Act, that would be the maximum period of that aggregate term which could be served before the sentence imposed for count 13 could be directed to commence. The effect would be to create an aggregate term for all the sentences of 7 years 4 months imprisonment.

16 We agreed that some reduction in the total aggregate term was required on purely totality grounds, and the appropriate term to be reduced, in our view, was clearly the sentence imposed for count 13, for the reasons we have given. In our view, the appropriate reduction was a period of 1 year.

17 We therefore reduced the sentence for count 13, the aggravated sexual penetration without consent committed on 20 August 2006, from 4 years 8 months imprisonment to 3 years 8 months imprisonment, resulting in a total aggregate term of 8 years and 4 months imprisonment for all the offences committed against the complainant over the three-day period, 18, 19 and 20 August 2006. We did not amend the order that the sentences should commence to be served on 13 September 2006, the date upon which the appellant was originally remanded in custody; nor did we interfere with the orders concerning concurrency and cumulation or the order of eligibility for parole. These are our reasons for the variation of sentence made.