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BENNELL -v- THE STATE OF WESTERN AUSTRALIA [2011] WASCA 174

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2011] WASCA 174
Court:	THE COURT OF APPEAL (WA)
Case No:	CACR:159/2010	Heard:	22 JUNE 2011
Coram:	McLURE P MURPHY JA MAZZA J	Delivered:	9/08/11
No of pages:	14	Judgment Part:	1 of 1
Result:	Appeal dismissed
Category:	B
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Parties:	RAYMOND MORRIS BENNELL THE STATE OF WESTERN AUSTRALIA
Catchwords:	Criminal law Appeal against sentence Sexual offences Intellectually disabled and legally blind victim Whether sentence imposed for digital penetration manifestly excessive Whether total effective sentence infringed first limb of totality principle
Legislation:	Acts Amendment (Sexual Offences) Act 1992 (WA), s 6(1) Criminal Code (WA), s 1, s 321(7), s 325, s 330, s 330(1), s 330(2), s 330(7)
Case References:	Cavill v The State of Western Australia [2008] WASCA 108 Chan v The Queen (1989) 38 A Crim R 337 Church v The State of Western Australia [2007] WASCA 215; (2007) 177 A Crim R 23 Coulter v The Queen (Unreported, WASCA, Library No 960507, 4 September 1996) Deering v The State of Western Australia [2007] WASCA 212 Giglia v The State of Western Australia [2010] WASCA 9 Grubisic v The State of Western Australia [2011] WASCA 147 Miles v The State of Western Australia [2010] WASCA 93 Mountain v The State of Western Australia [2009] WASCA 161 Powell v The Queen (Unreported, WASCA, Library No 8928, 21 June 1991) R v Faithfull [2004] WASCA 39; (2004) 142 A Crim R 554 Roffey v The State of Western Australia [2007] WASCA 246 The State of Western Australia v Wallam [2008] WASCA 117; (2008) 185 A Crim R 116 Wilson v The State of Western Australia [2010] WASCA 82

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : BENNELL -v- THE STATE OF WESTERN AUSTRALIA [2011] WASCA 174 CORAM : McLURE P

MURPHY JA

MAZZA J

HEARD : 22 JUNE 2011 DELIVERED : 9 AUGUST 2011 FILE NO/S : CACR 159 of 2010 BETWEEN : RAYMOND MORRIS BENNELL

Appellant

AND

THE STATE OF WESTERN AUSTRALIA

Respondent

ON APPEAL FROM:

Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA

Coram : O'NEAL DCJ

File No : IND 386 of 2010

Catchwords:

Criminal law - Appeal against sentence - Sexual offences - Intellectually disabled and legally blind victim - Whether sentence imposed for digital penetration manifestly excessive - Whether total effective sentence infringed first limb of totality principle

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Legislation:

Acts Amendment (Sexual Offences) Act 1992 (WA), s 6(1)

Criminal Code (WA), s 1, s 321(7), s 325, s 330, s 330(1), s 330(2), s 330(7)

Result:

Appeal dismissed

Category: B

Representation:

Counsel:

Appellant : Mr S B Watters

Respondent : Mr D Dempster

Solicitors:

Appellant : Thames Legal

Respondent : Director of Public Prosecutions (WA)

Case(s) referred to in judgment(s):

Cavill v The State of Western Australia [2008] WASCA 108
Chan v The Queen (1989) 38 A Crim R 337
Church v The State of Western Australia [2007] WASCA 215; (2007) 177 A Crim R 23
Coulter v The Queen (Unreported, WASCA, Library No 960507, 4 September 1996)
Deering v The State of Western Australia [2007] WASCA 212
Giglia v The State of Western Australia [2010] WASCA 9
Grubisic v The State of Western Australia [2011] WASCA 147
Miles v The State of Western Australia [2010] WASCA 93
Mountain v The State of Western Australia [2009] WASCA 161
Powell v The Queen (Unreported, WASCA, Library No 8928, 21 June 1991)
R v Faithfull [2004] WASCA 39; (2004) 142 A Crim R 554
Roffey v The State of Western Australia [2007] WASCA 246

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The State of Western Australia v Wallam [2008] WASCA 117; (2008) 185 A Crim R 116
Wilson v The State of Western Australia [2010] WASCA 82

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1 McLURE P: I agree with Mazza J.

2 MURPHY JA: I agree with Mazza J.

3 MAZZA J: This is an appeal against sentence.

4 The appeal notice was filed approximately one month late. The delay has been adequately explained in the affidavit of Peter Ben Cassidy, sworn 4 October 2010. The extension of time should be granted.

5 There are two grounds of appeal. They are as follows:

Ground 1

1. The sentence imposed for count one (digital penetration) was, in all the circumstances, manifestly excessive;

6 Particulars of circumstances:

1.1 The plea of guilty;

1.2 The Appellant's antecedents;

1.3 The criminality involved;

1.4 A broad comparison with sentences imposed for similar offending.

Ground 2

2. The learned sentencing Judge erred in imposing a total effective sentence which infringed the principle of totality, having regard to the overall criminality involved in the offences viewed in their entirety and all the circumstances of the case, including those referable to the Appellant personally.

7 Leave to appeal has been granted on ground 2. The question of leave on ground 1 has been referred to the hearing of the appeal.

8 The grounds of appeal allege implied errors on the part of the sentencing judge. The relevant appellate sentencing principles applicable to such grounds are well known and are set out in Wilson v The State of Western Australia [2010] WASCA 82 [2]. They do not need to be repeated here.

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Background

9 The appellant was charged by an indictment with five counts of sexually penetrating an incapable person (whom I shall refer to in these reasons as M), contrary to s 330(2) of the Criminal Code (WA). All of the offences were said to have been committed on 26 August 2009.

10 On 27 May 2010, after negotiations between the parties, and on the first scheduled day of his trial, the appellant pleaded guilty to three of the five offences. The State accepted those pleas in full satisfaction of the indictment: AB 34.

11 The offences to which the appellant pleaded guilty were:

(1) On 26 August 2009 at Perth [the appellant] sexually penetrated [M], who he then knew or ought to have known was an incapable person, by penetrating her vagina with his finger

(2) On 26 August 2009 at Perth [the appellant] sexually penetrated [M], who he then knew or ought to have known was an incapable person, by penetrating her vagina with his penis

…

(5) On 26 August 2009 at a place between Perth and Kewdale [the appellant] sexually penetrated [M], who he then knew or ought to have known was an incapable person, by penetrating her vagina with his finger

12 Each offence carries a maximum penalty of 14 years' imprisonment.

13 The State prosecutor read the facts to his Honour who then ordered the preparation of pre-sentence and psychological reports, and remanded the appellant to appear on 6 August 2010 for sentence. The reports were prepared and provided to his Honour in due course. On 6 August 2010, after hearing sentencing submissions from counsel, his Honour sentenced the appellant as follows:

Count 1 - 3 years' imprisonment

Count 2 - 5 years' imprisonment

Count 5 - 2 years' imprisonment

14 His Honour ordered that the sentences on counts 1 and 2 be served concurrently, and that the sentence on count 5 be served cumulatively. The total effective sentence imposed upon the appellant was 7 years'
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imprisonment. The sentence was backdated to commence on 21 March 2010, and the appellant was made eligible for parole.

The facts

15 The facts are not disputed: appeal ts 4.

16 The victim, M, was 35 years of age when the offences were committed. She is a person with an intellectual disability. Leonie Coxon, a clinical psychologist, whose opinions were unchallenged, assessed the victim's intellectual functioning as being within the lowest 1% of the population, with particular deficits in problem-solving skills and the capacity to make decisions. Ms Coxon's view was that the victim was incapable of guarding herself against sexual exploitation.

17 In addition to her intellectual disability, the victim was also legally blind.

18 Despite her disabilities, the victim worked and was able to live in her own accommodation. She had learned to get to work by taking a bus from her home to the Esplanade bus port in Perth, and from there by another bus to her place of work.

19 In the month or so prior to the offending, the appellant had met the victim on about six occasions. As a result of those meetings, the appellant, at the very least, ought to have known that M was so mentally impaired as to be unable to guard herself against sexual exploitation.

20 At about 5.30 am on 26 August 2009, M was at the Esplanade bus port on her way to work. At the time, there were few people about. The appellant approached M and told her that she was going home with him. He asked her, and she agreed, to follow him across the road to the Alf Curlewis Gardens, a dark and secluded location.

21 There he took off his shirt and placed it on the ground for the victim to lie on. He pulled off her underpants, pulled her bra up, rubbed her breasts and inserted a finger into her vagina (count 1).

22 The appellant asked the victim for sex. She was too frightened to speak. He then lay on top of her and penetrated her vagina with his penis, engaging in sexual intercourse, without contraception, for 10 to 15 minutes before ejaculating into her (count 2).

23 After this, the appellant and the victim returned to the bus port, where they both boarded a bus to M's work. The appellant took the victim

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to the back of the bus. Although there were other passengers on board, he digitally penetrated her vagina. This conduct made her upset and uncomfortable (count 5).

24 The appellant followed her to work. When she got there, she told a staff member, 'He said he wanted me.' The staff member observed M to be 'very scared'. The police were then called, and the victim disclosed to police what had happened to her.

25 On 29 August 2009, the appellant participated in a video record of interview with police officers. He told them that in the time he had known M, each of them had taken a liking to the other. He admitted penetrating the victim's vagina with his finger and penis at the Gardens, but denied digitally penetrating her on the bus.

26 A victim impact statement provided to the court revealed that the offences have had a serious effect upon M's enjoyment of life, her trust of others and her ability to live as independently as she did before the offending. Since the offences, she has become substantially dependent upon her elderly parents.

The appellant's antecedents

27 His Honour was provided with conflicting information about the appellant's formative years. However, he found that the appellant encountered substantial difficulties in those years. The appellant himself reported an incident of sexual abuse at the age of 6 years.

28 The appellant has abused both alcohol and cannabis over many years. It was noted in the pre-sentence and psychological reports that the appellant has resisted previous attempts to address these issues, although it was said he was now prepared to do so. The psychologist also noted that some of the appellant's behaviours suggest that he is prone to act impulsively and that he lacks consequential thinking. The appellant indicated to the psychologist that he was willing to engage in treatment programs, including a sex offenders treatment program. Psychological testing suggested the possibility that the appellant's intellectual capacity was 'below average to … impaired'. The issue was not pursued by defence counsel who told his Honour that the appellant was not of below average intelligence.

29 As an adult, the appellant has a long criminal history. The appellant has convictions for offences of burglary, dishonesty, driving without a licence, drink driving, unlawful use of motor vehicles, serious assault and

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breach of bail and community orders. The only real breaks in his offending correspond with periods of his incarceration. Aggression, substance abuse, antisocial perceptions and antisocial behaviours were considered, by the pre-sentence report author, to be significant factors in the appellant's offending behaviour.

30 Of particular relevance to this case is that, on 30 November 2006, the appellant was convicted of indecent assault and sentenced to a term of imprisonment. The circumstances of that offending were that, while on a train, he approached the victim, ordered her to stand, and forcefully grabbed her genital area.

Sentencing remarks

31 His Honour found that M was unable to give informed consent to engaging in sexual activity with the appellant or resist his sexual advances: AB 69. He found that the appellant preyed upon the victim and took advantage of her vulnerabilities: AB 70. He considered that general deterrence, punishment and the need to protect the vulnerable were the principal sentencing considerations: AB 70.

32 He expressly took into account, as mitigating factors, the appellant's late pleas of guilty, his partial admissions to the police, his background and his willingness to accept treatment: AB 68 - 70. However, his Honour found that there was a lack of genuine remorse or contrition on the appellant's part: AB 68.

33 His Honour rejected a submission that all three offences should be considered as part of the one transaction resulting in wholly concurrent sentences. He considered that while counts 1 and 2 were committed in the one incident in the Gardens and therefore warranted concurrent sentences, count 5 was committed in a separate incident and warranted a cumulative penalty: AB 71. His Honour expressly referred to the totality principle and reduced the sentence he would have imposed for count 5 from 3 years and 6 months to 2 years: AB 71.

Section 330 of the Criminal Code

34 Section 330 of the Criminal Code relevantly provides:

330. Incapable person, sexual offences against

(1) In this section a reference to an incapable person is a reference to a person who is so mentally impaired as to be incapable -

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(a) of understanding the nature of the act the subject of the charge against the accused person; or

(b) of guarding himself or herself against sexual exploitation.

(2) A person who sexually penetrates a person who the offender knows or ought to know is an incapable person is guilty of a crime and is liable to the punishment in subsection (7).

…

(7) A person who is guilty of a crime under subsection (2) or (3) is liable to imprisonment for -

(a) 14 years; …

…

35 The term 'mental impairment' is defined in s 1 of the Criminal Code to mean 'intellectual disability, mental illness, brain damage or senility'.

36 Section 330 of the Criminal Code was inserted by s 6(1) of the Acts Amendment (Sexual Offences) Act 1992 (WA).

37 Mr R Pearce MLA, in the second reading speech to the Legislative Assembly on 27 May 1992, with respect to the relevant Bill, said, in relation to s 330:

Proposed section 330 applies to sexual offences against people who are mentally disabled or intellectually handicapped. The section covers not only sexual intercourse, but also indecent dealing and procuring or encouraging a person to engage in sexual behaviour and the indecent recording of sexual behaviour. … This section is intended to protect such people against exploitation and not intended to prevent them voluntarily entering into sexual relationships if they are capable of and wish to do so. Consequently, the offence is committed only in cases where the person is incapable of understanding the nature of the act or of guarding himself or herself against sexual exploitation.

38 A key aspect to s 330 of the Criminal Code is the protection it affords to a class of people who, by virtue of mental impairment, are vulnerable to sexual exploitation and may be unable to understand the nature of sexual activity or protect themselves from those who wish to take advantage of their vulnerability. The penalty provided for is the same as that for sexual penetration without consent: s 325 of the Criminal Code, or sexual penetration of a child between the ages of 13 and 16 years: s 321(7) of the Criminal Code.

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39 It cannot be overlooked that the potential adverse consequences to a victim of an offence under s 330 of the Criminal Code of engaging in sexual behaviour are very serious. They include disease, pregnancy and, as occurred in this case, loss of confidence, trust and enjoyment of life in a person who, more than others, would generally find the consequences of such events difficult to cope with and recover from.

Counsel's submissions

40 Although Mr Watters, on behalf of the appellant, did not abandon ground 1, his submissions were concentrated on ground 2. As he put it, 'At the end of the day it's totality and I accept that entirely': appeal ts 4. No complaint was made about the individual sentences on counts 2 and 5.

41 In support of ground 2, Mr Watters argued that, as the appellant had not abused any position of trust, nor had he used threatened or actual violence on the victim in the commission of the offences, 7 years' imprisonment was not a proper reflection of the appellant's overall criminality. Further, all the offences were, he said, in effect, one transaction. Mr Watters submitted that this was a case in which the so-called one transaction rule should have been applied, to the extent that the sentence on count 5 should have been made concurrent with the other sentences imposed by his Honour. He submitted that a total effective sentence of 5 years' imprisonment was an appropriate reflection of the appellant's total overall offending.

42 Mr Dempster, for the State, submitted that the sentence imposed on count 1 was not manifestly excessive, and that 7 years' imprisonment was a proper reflection of the appellant's overall criminality. He submitted that his Honour was correct to impose a cumulative term of imprisonment for count 5. This offence, he contended, was committed separately to the earlier offences, at a different place and in different circumstances. He submitted that this offence aggravated the earlier offending.

Discussion and resolution of the grounds of appeal

43 The real issue in the appeal is whether the total effective sentence offended the totality principle: Giglia v The State of Western Australia [2010] WASCA 9 [40]. Even if the sentence on count 1 was reduced, absent a reduction in the total effective sentence, any reduction on that count would be moot. Accordingly, I will deal with ground 2 first.

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44 There is no need to examine at any length the totality principle and the many authorities from this and other jurisdictions which concern it. The law as it applies to this case is clear.

45 The totality principle 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 all the circumstances of the case, including those referable to the offender personally. The second limb requires a sentencer not to impose a total effective sentence that is crushing, in the sense that it destroys any reasonable expectation of a useful life after release: Roffey v The State of Western Australia [2007] WASCA 246 [24] - [25]. Here, the appellant alleges a breach of the first limb.

46 The overall offending was plainly very serious. The victim was intellectually disabled and legally blind. She is amongst the most vulnerable in the community. The appellant took advantage of her vulnerabilities and exploited her for his sexual gratification. The offences were demeaning and have adversely affected the victim and those responsible for her care. A significant overall term of imprisonment was necessary to achieve the sentencing objectives of protection, denunciation and deterrence.

47 I accept that the appellant did not abuse any position of trust, nor did he use threatened or actual violence in the commission of the offences. Nevertheless, the absence of these factors does not diminish the seriousness of his offending.

48 I do not accept that this was a case where the one transaction rule should be applied so that all the sentences imposed upon the appellant are wholly concurrent. Despite its name, the one transaction rule is not a rule at all; it is, at best, 'a good working rule'. As was said in R v Faithfull [2004] WASCA 39; (2004) 142 A Crim R 554 [28], there is no principle of law or sentencing that concurrent terms must be imposed for multiple offences constituting one transaction or a continuing episode. Depending on the circumstances of an individual case, wholly concurrent sentences may not reflect the total criminality of an offender's conduct. In such circumstances, it is appropriate for there to be accumulation of some or all of the sentences imposed even though the offences were committed in one transaction or continuing episode.

49 In the present case, his Honour applied the one transaction rule to the extent that he imposed wholly concurrent sentences on counts 1 and 2.

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His Honour was correct to do so. Both these offences were committed in the one incident in the Gardens. Count 2 was committed within a very short time of count 1. However, count 5 occurred later in time to counts 1 and 2. This act of digital penetration took place in a bus in which there were other passengers. It was brazen conduct that added to the humiliation and distress caused by the earlier offending. I accept the State's submission that count 5 was an aggravation of what had occurred earlier. His Honour was right, in these circumstances, to accumulate the sentence he imposed on count 5.

50 Apart from the appellant's late pleas of guilty, which his Honour expressly took into account, there was little mitigation.

51 The reports provided to his Honour reveal a lack of insight on the part of the appellant as to the seriousness of his offending and the effects of that offending upon the victim. As his Honour found, there is a lack of evidence of genuine remorse or contrition.

52 His Honour had regard to, and applied the totality principle. Having regard to all of the circumstances of the case, it has not been demonstrated that the total effective sentence of 7 years' imprisonment was an unjust reflection of the appellant's total criminality. Ground 2 must be dismissed. This leaves ground 1.

53 The criteria which must be examined in order to determine whether a sentence is manifestly excessive are set out in Chan v The Queen (1989) 38 A Crim R 337, 342, as follows:

To determine whether a sentence is excessive, it is necessary to view it in the perspective of the maximum sentence prescribed by law for the crime, the standards of sentencing customarily observed with respect to the crime, the place which the criminal conduct occupies in the scale of seriousness of crimes of that type and the personal circumstances of the offender[.]

Bennell v The State of Western Australia

[2011] WASCA 174

9 AUGUST 2011

BENNELL -v- THE STATE OF WESTERN AUSTRALIA [2011] WASCA 174