Atkinson v The State of Western Australia
[2017] WASCA 154
•17 AUGUST 2017
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: ATKINSON -v- THE STATE OF WESTERN AUSTRALIA [2017] WASCA 154
CORAM: BUSS P
BEECH JA
HALL J
HEARD: 20 JULY 2017
DELIVERED : 17 AUGUST 2017
FILE NO/S: CACR 201 of 2016
BETWEEN: DARREN ROBERT ATKINSON
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram :SCOTT DCJ
File No :IND 1052 of 2016
Catchwords:
Criminal law - Appeal against sentence - Aggravated burglary - Aggravated sexual penetration without consent - Deprivation of liberty - Attempted aggravated robbery - Total effective sentence of 15 years' imprisonment - Whether total sentence and individual sentences on four counts reflected voluntary disclosure of those offences
Legislation:
Criminal Code (WA), s 325, s 333, s 393, s 401(2)(a), s 552
Sentencing Act 1995 (WA), s 9AA
Result:
Leave to appeal in respect of grounds 1 and 3 refused
Leave to appeal in respect of grounds 2, 4 and 5 granted
Appeal allowed
Category: B
Representation:
Counsel:
Appellant: Ms N R Sinton
Respondent: Mr R G Wilson
Solicitors:
Appellant: Legal Aid (WA)
Respondent: Director of Public Prosecutions (WA)
Case(s) referred to in judgment(s):
AJ v The State of Western Australia [2016] WASCA 13
Cooper v The State of Western Australia [2009] WASCA 37
Hill v The State of Western Australia [2014] WASCA 150
Royer v The State of Western Australia [2009] WASCA 139; (2009) 197 A Crim R 319
Ugle v The State of Western Australia [2007] WASCA 199
REASONS OF THE COURT: This is an appeal against sentence. The appellant was convicted on his pleas of guilty of nine offences contained in an indictment. He received a total effective sentence of 15 years' imprisonment. The total effective sentence was backdated to 11 May 2016. The nature of the offences, the maximum penalties and individual sentences imposed are reflected in the following table:
| Count | Offence | Max Penalty | Penalty Imposed |
| (1) | Aggravated burglary and commit offence in a dwelling s 401(2)(a) Code | 20 years | 7 years 6 months' imprisonment Head sentence |
| (2) | Aggravated sexual penetration without consent (vaginal/penile) s 326 Code | 20 years | 7 years' imprisonment concurrent |
| (3) | Deprivation of liberty s 333 Code | 10 years | 2 years' imprisonment concurrent |
| (4) | Attempted aggravated robbery ss 393, 552 Code | 7 years | 2 years' imprisonment concurrent |
| (5) | Aggravated burglary and commit offence in a dwelling s 401(2)(a) Code | 20 years | 7 years 6 months' imprisonment cumulative upon count (1) |
| (6) | Aggravated sexual penetration without consent (anal/penile) s 326 Code | 20 years | 7 years' imprisonment concurrent |
| (7) | Aggravated sexual penetration without consent (vaginal/digital) s 326 Code | 20 years | 3 years' imprisonment concurrent |
| (8) | Aggravated sexual penetration without consent (anal/penile) s 326 Code | 20 years | 7 years' imprisonment concurrent |
| (9) | Deprivation of liberty | 10 years | 2 years' imprisonment concurrent |
Total effective sentence: | 15 years' imprisonment | ||
The offences fall into two groups: counts 1 to 4 relate to an incident in 1997 and counts 5 to 9 relate to an incident in 1999. The 1997 offences came to light as a result of voluntary disclosure by the appellant. The essential issue on appeal was whether the total sentence and the individual sentences on counts 1 to 4 reflect the substantial mitigating factor of that voluntary disclosure. For the reasons that follow, we are of the view that the appeal should be allowed, the sentences imposed upon the appellant on counts 1 to 4 be varied to reflect his voluntary disclosure and the total effective sentence be reduced to 13 years' imprisonment.
The facts
Counts 1 to 4 - the 1997 offences
The offending the subject of counts 1 to 4 occurred on 21 June 1997 at Queens Park. The female complainant, N, was 18 years old at the time. The appellant was 25 years of age at the time. He lived near the complainant.
At about 7.30 pm, the complainant was alone at home. The appellant walked down the driveway of the complainant's unit complex and saw her through a lounge room window. He pulled a balaclava over his face. He opened the unlocked security door and knocked on the front door. The complainant, believing the security door was locked, opened the front door.
The appellant immediately forced himself into the premises by pushing the complainant backwards before turning her around. He pushed her to the ground and held a knife to her throat.
The appellant then took the complainant to another room in the house where he tied her hands behind her back and also tied her legs together so she could not move. He demanded that she turn her head towards the wall so she could not see him and asked if anyone else was at home. He walked through the house before returning with a T‑shirt which he placed over the complainant's face.
The appellant then removed the rope from around the complainant's legs, pulled her to her feet and took her to a bedroom at the back of the unit. He forced her to kneel on the bedroom floor with the top part of her body on a single bed in that room. He then pulled down her pants and penetrated her vagina with his penis. This continued for two to three minutes before he removed his penis and ejaculated on the bedroom carpet.
The appellant then again tied the complainant's legs at the ankles. She remained in the same position as she was too afraid to move whilst the appellant walked around the unit. He then returned and grabbed the complainant by the hair, pulling her head off the bed. He asked if she had any money. She said that she did not. He then let go and her head fell back onto the bed. He said, 'Stay here for two hours. Don't talk, don't scream, don't move. I'll be watching you'. He then left the premises through the front door.
The complainant remained in the bedroom for a few minutes before managing to pull the T‑shirt from her face. She was eventually able to get her right hand free, dislocating her thumb in the process. She then pulled herself to the lounge room where she managed to remove the rest of the rope from her left hand and legs. A friend telephoned the complainant, unaware of what had occurred, and the complainant told him what had happened. The friend called the police. When questioned by police, the complainant did not mention the sexual component of the offending .
Counts 5 to 9 - the 1999 offences
The offending the subject of counts 5 to 9 occurred on 24 July 1999 at Tuart Hill. The female complainant, E, was 19 years old at the time. The appellant was then 27 years old and lived nearby.
During the afternoon, the appellant saw the complainant walk past his home. He spoke to her briefly. Other than that brief conversation the complainant and the appellant were unknown to each other. He watched her walk to her unit, which was a street away from his home.
At approximately 8.00 pm that evening, the complainant was at home alone watching television. The appellant went to the complainant's residence and gained entry through a closed but unlocked laundry door. He hid in the house intending to sexually assault the complainant.
Sometime later the complainant finished watching television and walked down the hallway towards her bedroom. The appellant grabbed her from behind, placed a pillowcase over her head and held an unknown object to her throat. He said, 'Do you want to live?'
The appellant forced the complainant into a bedroom where he made her kneel down and tied her hands behind her back. He then searched through drawers before forcing the complainant back to the lounge room. He untied her and pulled her pyjamas off with such force that some items tore. When she was naked he retied her hands behind her back.
The appellant forced the complainant to bend over the lounge chair whilst she was on her knees. He then lubricated himself before inserting his erect penis into her anus for a short time. He then placed his fingers into the complainant's vagina. He then reinserted his penis into her anus and, after some time, ejaculated. He untied the complainant's wrists and then retied them with electrical cord and told her not to move. He told her that it would be best just to forget about it, said that she was 'lucky' and that she should not phone anyone as he would be watching. He then left the house, leaving the complainant tied up on the lounge room floor.
The complainant remained in that position for some time until she managed to free herself and phone her father who alerted the police. Police attended the complainant's unit and conducted a forensic examination of the scene. The complainant was also forensically examined. As a result, a full DNA profile was obtained and held on file. No match was made to the DNA at that time.
In early 2016, the appellant was arrested in relation to an unrelated matter. A DNA sample was taken which was found to match the sample taken following the 1999 offences.
First police interview
On 14 March 2016, the appellant was arrested in respect of the 1999 offences and took part in a recorded interview. Prior to the interview the appellant was told that his DNA had been recovered in respect of that incident.
The appellant made partial admissions in respect of the 1999 offending. He said that he saw the complainant (E) pass his house on the day in question as he was shaving his hair. He watched her walk down an alley to her house. He admitted that he went to her house that night, threw a towel over her head and forced her to lie down. He denied penetrating her, though he said he did ejaculate. He admitted tying up the complainant and touching her body, but denied hurting or threatening her (pages 28 ‑ 30).
The appellant said that he had never forgotten the incident, knew that what he did was wrong and had been carrying feelings of guilt since that time (page 35).
The appellant was told by the police officer conducting the interview that the police investigate all sex‑related offences and review all unsolved matters. He was asked whether he had ever done anything similar, including breaking into a home. He said that he had not (pages 35 ‑ 37). Towards the end of the interview he said that this was the one mistake that he had made and it had now caught up with him (page 48).
The appellant was not questioned about the 1997 incident. There is no suggestion that the police were aware of any possible involvement by the appellant in that incident at the time of the interview. Indeed, the sexual assault component of that incident had not been reported to the police and there was no DNA evidence in respect of it.
Second police interview
Sometime later the appellant spoke to his father. He asked his father to contact the police because he had information that he wished to provide to them. A second interview took place on 23 May 2016.
The appellant told police that he had committed another sexual assault, this one in Queens Park. He described knocking on the door whilst wearing a balaclava, rushing in when the door was answered and sexually assaulting the woman who was there. He said that he was extremely sorry that it happened, that he hoped the complainant was okay and that he did not break into the house (page 5). He admitted sexually penetrating the complainant (page 7). He also admitted threatening the complainant and tying her up (page 13).
The appellant said that he was using a lot of drugs at the time. He said he was out walking and decided to break into a house in order to commit a sexual assault (page 15). He could not remember the date or year that this occurred, but did provide street and suburb names (pages 7 ‑ 10).
The appellant said that the reason he made the confession was that he knew he had 'done the wrong thing'. He said he had only committed two offences of this type, that is the 1997 and 1999 incidents (page 26).
Personal circumstances
The appellant was aged 45 years old at the time he came to be sentenced. He was single and unemployed.
The appellant spent his early childhood years in Queensland. His father worked as a truck driver and was not home much. The appellant was the middle child of three. His older sister had epilepsy and his younger brother became involved in heavy drug use. The appellant described his family as dysfunctional. His parents separated when he was a young adult and the appellant remained with his mother. His mother spent some time in prison for fraud (psychological report, page 2).
For many years the appellant and his mother had a strained relationship, though they are close now. She moved in with the appellant about seven years ago so that she could mind his house when he was away working. He continues to maintain some contact with his father (psychological report, page 3).
The appellant said that he was often in trouble at school and was frequently truant. He was ultimately expelled from high school in year 10. He worked for many years in the mining industry before his health deteriorated significantly in the last two years (psychological report, page 3).
The appellant reported a long history of substance abuse, including alcohol and illicit drugs. He was diagnosed with bipolar disorder in 2004 and hospitalised for three weeks. He was prescribed antipsychotic medication, but his history of compliance has been poor (psychological report, page 4).
He has had two significant relationships - one that commenced at the age of 18 which lasted three years and the second in his thirties which lasted five years. He has never had children. He has a relatively minor criminal record (psychological report, page 5).
Psychiatric and psychological reports
The appellant told a psychiatrist that he knew that he was 'in trouble' when he was arrested on unrelated matters in 2016 and realised that police would now have his DNA. He admitted that the 1997 offence had been planned and that the thought of 'raping and controlling a woman was bubbling for a long time'. He said that he took a balaclava, a rope and a knife with him. He said he had no intention of using the knife other than to assert control. He said that 'dominating her was arousing'. The 1999 offences were committed under similar circumstances. The victim was a stranger who lived nearby and who he decided to rape after seeing her on one occasion. He said that he was visiting prostitutes at that time, but his sexual drive was very high and he was fantasising about sex all the time. Those fantasies were more intense because he was using amphetamines (psychiatric report, page 3).
In regard to the appellant's attitude to his offending the psychiatrist stated that the appellant did not attempt to justify his behaviour, but that it was evident his main concern was his own welfare and the prospect of long incarceration. He agreed that he would require counselling to address his deviant sexual interest in violence and control. The psychiatrist then stated:
His understanding of the impact of his offences on the victims was limited to a cognitive appreciation only of the terror he had subjected them to. He said that his victims were 'probably angry, confused and had a lot of emotions'. There was no evidence of the major cognitive distortions or misogynistic attitudes.
In summary, [the appellant's] attitude towards his offending was characterised by acknowledgement of the motives of his offending, the legal consequences, a degree of shame and remorse and motivation to participate in any program or counselling that would be recommended (psychiatric report, pages 3 ‑ 4).
The psychiatrist concluded that the appellant does not suffer from a major mental disorder. He committed the offences driven by his violent sexual fantasies, being disinhibited by drugs that he was using at the time, and having no moral inhibitions, which in his case were associated with the presence of antisocial personality disorder and psychopathic traits (psychiatric report, pages 7 ‑ 8).
The psychologist reported that the appellant readily acknowledged responsibility for his offending behaviour, stating that he had been anticipating arrest for almost 20 years (psychological report, page 7). He said that at the time of the offences he was using a lot of drugs and that he believed he was mentally unstable because of this. After recording the appellant's account of the offences, the psychologist stated:
[The appellant] impressed as generally remorseful for his offending, demonstrating reasonable empathy for the victims who were aged 18 and 19 years respectively. [The appellant] readily articulated that both victims may have suffered significantly as a result of his behaviour, describing possible mental issues, relationship issues and drug issues. Adding that he is hopeful his arrest provides the victims with 'peace', [the appellant] stated he would like to apologise if possible. [The appellant] also stated that he cannot forgive himself for what he did and that he deserves to 'rot in hell … I deserve what I get … I don't deserve any tenderness … I look forward to life ending'. Adding that he has 'destroyed the family name … embarrassed the family', [the appellant] is anticipating a lengthy term of imprisonment, his only concern being that his mother may die while he is in prison. When asked whether he had contemplated committing any other sex offences in the two‑year period between the two offences and since the last offence, [the appellant] was emphatic that he hadn't (psychological report, pages 7 ‑ 8).
The psychologist noted that some of the issues which appeared to have contributed to the offending may not have as much relevance now as they did 20 years ago. However, drug abuse, mental health issues and interpersonal issues continue to have ongoing relevance. The appellant was placed in the moderate to low‑risk category of reoffending (psychological report, page 8).
Victim impact statements
The victim of the 1997 offences, N, states that at the time she had just moved out of her parents' home and was excited about having her own place and was enjoying her independence. She had only been living there a few months and was getting settled in. The events of that night were life‑changing. She feared for her life that night and for many years was unable to be alone in a house. She suffered terrible anxiety in the years that followed and still does. She continues to have panic attacks when there is a knock at the door. The feeling can be overwhelming and crippling. She was unable to stay at the unit and returned to live with her parents. Her relationship broke down because being close to another person made her feel uncomfortable. She did not know how to deal with what happened and withdrew.
The victim of the 1999 offences, E, states that many aspects of her life were affected over the months and years following the offences. She struggled to sleep or eat and felt physically sick much of the time. The appellant's threats left her feeling fearful and she moved out of the house soon afterwards. Because her face had been covered during the offences, she feared encountering the offender unknowingly. She was afraid to be at home alone and afraid of any strange men. She became quite socially isolated and lonely and avoided relationships as she was uncomfortable with the idea of sexual contact with any person. Both she and her parents sought counselling. She said that, notwithstanding the lapse of 17 years, the events of that night can never be erased and always remain part of her memories.
Sentencing remarks
After referring to the facts of the offences the sentencing judge said:
The fact that you committed these offences only came to light in May 2016. You were arrested on suspicion of committing other offences. Your DNA was matched to the offence in 1999 and the police alerted you to that fact.
It is to your credit that you then a week later contacted the police and made some admissions with respect to the 1997 offences even though you didn't know whether the police had your DNA that matched any analysis that was made back in 1997 (ts 24).
His Honour then referred to the reports and said:
[The psychologist] said that you impressed her as being genuinely remorseful which is in direct contrast to the observations of the psychiatrist.
As I said to [defence counsel], I can't resolve that issue and it's a matter [on] which I take a relatively neutral stance. The fact that you cooperated with police to an extent does indicate some degree of contrition, some degree of acceptance of your culpability and I'm satisfied that you understand the issues that are likely to have been confronted by the two victims (ts 26).
The appellant entered pleas of guilty at the earliest reasonable opportunity. Indeed, his pleas were fast‑track pleas. His Honour said that in recognition of this he would allow a discount of 25% pursuant to s 9AA of the Sentencing Act (ts 28).
In imposing sentences his Honour expressly referred to the appellant's pleas of guilty, his personal circumstances and the voluntary admission of the 1997 offences although he said that this was 'prompted by the earlier disclosure of DNA' (ts 28).
His Honour considered that the appropriate sentences for each of counts 1 and 5, the aggravated burglary offences, should be 9 years in each case. However, he reduced those sentences to 7 1/2 years in each case, having regard to the totality principle. He then imposed the sentences that appear in the table earlier in these reasons (ts 29).
Grounds of appeal
The grounds of appeal, as amended at the hearing, are as follows:
1.The learned sentencing judge erred in fact in stating that police would have 'undoubtedly' connected the appellant with the 1997 offences when there was in fact no evidence connecting him to those offences but his voluntary disclosure.
2.The learned sentencing judge erred in imposing an aggregate sentence that was of a length that did not bear a proper relationship to the overall criminality of the appellant's conduct, having regard to all relevant circumstances, in particular his voluntary disclosure of guilt in relation to the 1997 offences.
3.The learned sentencing judge erred in failing to find that the appellant was remorseful.
4.The learned sentencing judge erred in failing to provide a discount in the sentences imposed in relation to counts 1 to 4 on account of voluntary disclosure of guilt.
5.The learned sentencing judge erred in imposing sentences on counts 1 to 4 that were manifestly excessive, having regard to the voluntary disclosure of guilt.
Ground 1 - error of fact
The appellant submits that the sentencing judge made an express error of fact in finding that the police would have 'undoubtedly' caught up with the appellant in respect of the 1997 offending regardless of his voluntary disclosure. The implication is that in making such a finding his Honour discounted or undervalued the voluntary disclosure.
The passage to which this ground refers does not form part of the judge's sentencing remarks. The relevant passage appears in an exchange between the judge and defence counsel during the course of sentencing submissions:
SCOTT DCJ: There's some disagreement, isn't there, between the psychologist and the psychiatrist. [The psychiatrist] takes the view that there was no victim empathy. The psychologist said that she was impressed by the fact there is.
So the best I can do seems to me on that is to take a position that's relatively neutral, that is that ‑ ‑ ‑
TUDORI, MR: That's right.
SCOTT DCJ: - ‑ ‑ the fact that he did make some voluntary admissions with respect to 1997 even though they may well have caught up with him anyway and undoubtedly they would have, that shows some degree of insight and culpability acceptance (ts 16).
A statement made during an exchange with counsel in the course of submissions does not have the status of a finding of fact. Judges may ask questions or state tentative propositions in order to test the submissions that are being made. A misunderstanding may be corrected or resiled from on reflection. It is generally wrong to draw conclusions about findings made by a sentencing judge based on questions or provisional views expressed during submissions: AJ v The State of Western Australia [2016] WASCA 13 [37] (Mitchell JA; Buss & Mazza JJA agreeing).
Following the relevant exchange, submissions were made by counsel for the State which made it clear that the 1997 complainant had not told the police of her sexual assault at the time and that no DNA samples were taken. There was no suggestion by the State that the police would have 'caught up' with the appellant in respect of the 1997 offences irrespective of his voluntary disclosure.
In his sentencing remarks the learned sentencing judge did not repeat the comment that the police would have 'undoubtedly' caught up with the appellant. When his sentencing remarks are read as a whole, there is no reason to think that he made a finding in that regard, particularly having regard to the submissions that were made following the comment. There is no merit in this ground of appeal and leave in respect of it should be refused.
Ground 2 - totality
This ground alleges a breach of the first limb of the totality principle. That limb requires a judge who is sentencing an offender for multiple offences to ensure that the total effective sentence bears 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. A claim that a total effective sentence infringes the totality principle asserts an implied error. For such a claim to succeed the appellant must establish that the aggregate sentence was plainly unreasonable or unjust.
On the hearing of the appeal counsel for the appellant conceded that she would have difficulty arguing that a total effective sentence of 15 years' imprisonment infringed the totality principle but for the significant mitigation that the appellant derived from the voluntary disclosure of the 1997 offences. She accepted that the offences were very serious and that cumulative sentences were appropriate given that there were two victims and that the offences occurred two years apart.
Thus the ground depends entirely upon an assessment of the value of the voluntary disclosure, a factor that relates only to counts 1 to 4 on the indictment. That issue is better captured by grounds 4 and 5 which, as explained below, we would uphold. In these circumstances there is no value in undertaking a comparison between the total effective sentence in this case and in other cases.
Ground 3 - error of fact
The appellant submits that the learned sentencing judge mistakenly concluded that the psychologist and the psychiatrist had contrasting views in regard to whether the appellant had shown remorse for the offence. This is said to have caused his Honour to take a neutral view as to whether the appellant was truly remorseful.
Remorse is a factor which, if established, is mitigating. The onus is on an offender to establish mitigating factors on the balance of probabilities. In this case, when his Honour said in the course of sentencing submissions that the psychiatrist had taken the view that there was no victim empathy and that the psychologist was 'impressed by the fact there is' and his Honour said that the best he could do was take a relatively neutral position, defence counsel responded, 'That's right' (ts 16). There was no dispute with the view expressed by his Honour, nor any attempt to persuade him to a different view.
His Honour was expressly referring to victim empathy in this passage. His comments were in accord with what was said in the respective reports. In fact, there were also some reservations expressed in regard to the extent of the appellant's insight into the impact of the offending in the psychologist's report (ts 18).
In his sentencing remarks the sentencing judge said that the appellant impressed the psychologist as being genuinely remorseful and that this was in 'direct contrast' to the observations of the psychiatrist (ts 26). The appellant submits that this is incorrect because the psychiatrist did acknowledge that the appellant was remorseful, despite the reservations expressed about victim empathy. The appellant says that by conflating these two things the sentencing judge wrongly concluded that the appellant was not remorseful.
The psychiatrist did say that the appellant had a limited appreciation of the impact of his offences on the victims. However, she also said that his attitude to the offending was characterised by 'a degree of shame and remorse' (par 7.3). That is, despite questioning whether the appellant had any genuine victim empathy, she did refer to his expression of remorse.
The appellant's submissions assume that the sentencing judge erroneously concluded that the appellant had not shown remorse. However, a complete reading of the sentencing remarks reveals this to be incorrect. Despite saying that he could not resolve what he perceived as a conflict between the reports and that he would take a neutral stance, his Honour did state that the fact that the appellant had cooperated with the police indicated 'some degree of contrition' (ts 26). There is no material distinction between remorse and contrition. It is apparent from this that his Honour accepted that the appellant was to some degree remorseful and had expressed remorse. Thus, whether or not his Honour was correct as to the extent of any conflict between the reports, the conclusion he reached does not reveal error on the issue of the appellant's remorse. There is no merit in this ground of appeal and we would refuse leave in respect of it.
Grounds 4 and 5 - voluntary disclosure
It is convenient to deal with these grounds together. They both address what is said to be an inferred or implied error, namely that in imposing the sentences on counts 1 to 4, his Honour failed to give a discount for the voluntary disclosure and that this resulted in sentences for those counts that were manifestly excessive.
The offences were extremely serious offences of their type. They involved planning and the use of force to overwhelm young and vulnerable victims at night in their homes. Physical restraints and threats were used, including the use of weapons, in order to obtain the victim's compliance. The offences caused great psychological trauma to the victims and have had long‑lasting effects. None of this is disputed by the appellant.
If not for the voluntary disclosure there could be no suggestion that the sentences on counts 1 to 4 are manifestly excessive, nor that the total effective sentence is disproportionate. The sentences imposed are consistent with those imposed in Ugle v The State of Western Australia [2007] WASCA 199; Royer v The State of Western Australia [2009] WASCA 139; (2009) 197 A Crim R 319; and Cooper v The State of Western Australia [2009] WASCA 37.
The relevant legal principles in regard to voluntary disclosure were stated by Buss JA in Hill v The State of Western Australia [2014] WASCA 150 [33]:
The relevant legal principles can be shortly stated. It is part of the policy of the criminal law to encourage a guilty person to come forward and disclose both the fact of an offence having been committed and his or her guilt. Such a confession may well not be motivated by fear of discovery or acceptance of the likelihood of proof of guilt, and will often exhibit the offender's remorse and contrition: AB v The Queen [1999] HCA 46; (1999) 198 CLR 111 [113]; JWD v The State of Western Australia [2013] WASCA 233 [45]. When a conviction follows upon a plea of guilty that is itself the result of a voluntary disclosure of guilt by the offender of an offence which was otherwise unlikely to have come to light, that is ordinarily a significant matter to the credit of the offender to be taken into account in the sentencing process: Ryan v The Queen [2001] HCA 21; (2001) 206 CLR 267 [11] - [15]; R v Ellis (1986) 6 NSWLR 603, 604; Schriever v The State of Western Australia [2008] WASCA 133 [22]. How significant it is in the sentencing process depends upon the facts and circumstances of the case: Ryan [15].
In this case the appellant's disclosure of the 1997 offending was significant because it was a disclosure to the authorities of otherwise unknown offences. The complainant in respect of the 1997 offences did not report the sexual assault and no DNA samples were taken. It might be suggested that the appellant made the disclosure because he feared the police may have other undisclosed DNA evidence that would implicate him. However, there was no suggestion of that at the first interview and in fact it was not the case. Whatever the appellant's motivations, and he said that he was motivated by remorse, the fact is that but for his disclosure there is no reason to think that the appellant would have been charged with the 1997 offences. In these circumstances his disclosure was a significant matter to the credit of the appellant to be taken into account in sentencing on counts 1 to 4.
His Honour made express reference to the voluntary disclosure of the 1997 offences in his sentencing remarks. He accepted that that was a mitigating factor in relation to counts 1 to 4. However, the individual sentences for counts 1 to 4 were the same as those imposed for the similar offending in counts 5 to 9. This cannot be accounted for by any significant difference in the offending. The two groups of offences were of a comparable level of seriousness. Indeed, the respondent accepted before this court that, if anything, the second group of offences were more serious. This supports a conclusion that his Honour did not reduce the sentences on counts 1 to 4 having regard to the voluntary disclosure.
In our view, the sentences imposed on counts 1 to 4 do not reflect any reduction for the voluntary disclosure. Though the sentencing judge referred to the voluntary disclosure, it is apparent that he failed to allow a discount for it. This has resulted in the sentences for those counts being manifestly excessive.
We would grant leave in respect of grounds 2, 4 and 5, allow the appeal and resentence the appellant in respect of counts 1 to 4 to allow an appropriate discount for the voluntary disclosure.
Conclusion
The appeal should be allowed on the basis that grounds 4 and 5 have been made out.
The discount of 25% pursuant to s 9AA of the Sentencing Act was appropriate and should stand.
The individual sentences for counts 1 to 4 should be varied by being reduced as follows:
(a)count 1 should be reduced from 7 years 6 months to 5 years 6 months' imprisonment;
(b)count 2 should be reduced from 7 years to 5 years 2 months' imprisonment;
(c)count 3 should be reduced from 2 years to 1 year 6 months' imprisonment; and
(d)count 4 should be reduced from 2 years to 1 year 6 months' imprisonment.
The variation of the individual sentences for counts 1 to 4 requires that this court review the total effective sentence imposed by the sentencing judge in respect of all of the counts on the indictment.
In our opinion, after taking into account the maximum penalty for each of the offences; the facts and circumstances of the offending viewed as a whole; the relevant general sentencing patterns; the place which the appellant's overall criminal conduct occupies on the scale of seriousness of offending of this kind; the appellant's personal circumstances; and all other sentencing factors (including mitigating factors), a total effective sentence of 13 years' imprisonment is appropriate.
We would make the following orders:
1.Leave to appeal in respect of grounds 1 and 3 refused.
2.Leave to appeal in respect of grounds 2, 4 and 5 granted.
3.Appeal allowed.
4.The sentence on count 1 be varied by reducing it from 7 years 6 months to 5 years 6 months' imprisonment. The sentence on count 2 be varied by reducing it from 7 years to 5 years 2 months' imprisonment. The sentence on count 3 be varied by reducing it from 2 years to 1 year 6 months' imprisonment. The sentence on count 4 be varied by reducing it from 2 years to 1 year 6 months' imprisonment. The other sentences and the orders for accumulation, concurrency, the commencement date of the total effective sentence and eligibility for parole be otherwise unaffected.
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