Cooper v The State of Western Australia
[2009] WASCA 37
•10 FEBRUARY 2009
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: COOPER -v- THE STATE OF WESTERN AUSTRALIA [2009] WASCA 37
CORAM: PULLIN JA
BUSS JA
MILLER JA
HEARD: 15 DECEMBER 2008
DELIVERED : 10 FEBRUARY 2009
FILE NO/S: CACR 66 of 2008
CACR 67 of 2008
BETWEEN: MICHAEL BARRY COOPER
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram :GROVES DCJ
File No :IND 274 of 2007
Catchwords:
Criminal law - Conviction appeal - Burglary - Assault occasioning bodily harm - Several counts of sexual penetration - Whether any misdirection concerning evidence given concerning DNA evidence - Provision of transcript to jury - Whether miscarriage of justice
Sentencing - Aggregate sentence of 12 years' imprisonment - Whether any breach of totality principle
Legislation:
Criminal Procedure Act 2004 (WA), s 110
Sentencing Legislation Amendment and Repeal Act 2003 (WA)
Result:
Appeal dismissed
Category: B
Representation:
Counsel:
Appellant: Mr L M Levy SC
Respondent: Mr D Dempster
Solicitors:
Appellant: David Manera
Respondent: Director of Public Prosecutions (WA)
Case(s) referred to in judgment(s):
C v The State of Western Australia [2006] WASCA 261
Gately v The Queen [2007] HCA 55; (2007) 232 CLR 208
Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665
Martino v The State of Western Australia [2006] WASCA 78
Postiglione v The Queen [1997] HCA 26; (1997) 189 CLR 295
R v Faithfull [2004] WASCA 39; (2004) 142 A Crim R 554
The State of Western Australia v Akizuki [2008] WASCA 267
The State of Western Australia v Turaga [2006] WASCA 199
Ugle v The State of Western Australia [2007] WASCA 199
PULLIN JA: This is an appeal against conviction and sentence.
The appellant was convicted on 3 April 2008 after a trial in the District Court before a judge and jury of all counts in an indictment which read:
(1)On or about 26 August 2006 at Myaree Michael Barry Cooper entered or was in the place of [the complainant] without her consent with intent to commit an offence therein
And that Michael Barry Cooper was armed with an offensive weapon namely a screwdriver
And that Michael Barry Cooper did bodily harm to [the complainant]
And that Michael Barry Cooper detained [the complainant]
And that immediately before the commission of the offence Michael Barry Cooper knew or ought to have known that there was another person in the place
And that the place was ordinarily used for human habitation.
(2)On the same date and at the same place as in Count (1), Michael Barry Cooper unlawfully assaulted [the complainant] and thereby did her bodily harm
And that [the complainant] was a person of or over the age of 60 years.
(3)On the same date and at the same place as in Count (1), Michael Barry Cooper unlawfully and indecently assaulted [the complainant] by sucking her breasts
And that Michael Barry Cooper was armed with an offensive weapon namely a screwdriver
And that Michael Barry Cooper did bodily harm to [the complainant]
And that [the complainant] was a person of or over the age of 60 years.
(4)On the same date and at the same place as in Count (1), Michael Barry Cooper sexually penetrated [the complainant] without her consent by penetrating her vagina with his fingers
And that Michael Barry Cooper was armed with an offensive weapon namely a screwdriver
And that Michael Barry Cooper did an act which was likely to seriously and substantially degrade and humiliate [the complainant] namely rubbing saliva into her vagina
And that [the complainant] was a person of or over the age of 60 years.
(5)On the same date and at the same place as in Count (1), Michael Barry Cooper sexually penetrated [the complainant] without her consent by penetrating her anus with his penis
And that Michael Barry Cooper was armed with an offensive weapon namely a screwdriver
And that [the complainant] was a person of or over the age of 60 years.
(6)On the same date and at the same place as in Count (1), Michael Barry Cooper sexually penetrated [the complainant] without her consent by introducing his penis into her mouth
And that Michael Barry Cooper was armed with an offensive weapon namely a screwdriver
And that [the complainant] was a person of or over the age of 60 years.
(7)On the same date and at the same place as in Count (1), Michael Barry Cooper sexually penetrated [the complainant] without her consent by penetrating her vagina with his penis.
And that Michael Barry Cooper was armed with an offensive weapon namely a screwdriver
And that [the complainant] was a person of or over the age of 60 years.
The appellant was sentenced to imprisonment for a total of 12 years made up as follows:
Count 1: 2 years 8 months' imprisonment
Counts 2 and 3 : 2 years' imprisonment
Count 4: 3 years 4 months' imprisonment
Count 5: 6 years 8 months' imprisonment
Count 6: 3 years 4 months' imprisonment
Count 7: 6 years 8 months' imprisonment
Count 2, 6 and 7 cumulative and the other sentences concurrent.
Total: 12 years' imprisonment
The appellant was made eligible for parole.
At the date of the offence the complainant was a 77‑year‑old widow who had lived alone for 10 years since the death of her husband. She had lived in the same house for 46 years. The appellant was aged 36 years at the date of the offence. He lived next door to the complainant with his de facto and four children, two of them being the children of the appellant and two being the children of his de facto by another relationship. He had lived there for two years. On the evening before the date of the offence, the complainant had gone to bed at about 11 pm. Sometime the next morning, some hours before dawn, she was woken by the presence of a male person in her bed. The intruder got on top of her and when she resisted he forcibly struck her across the right and left side of the forehead and the complainant believed she lost consciousness for a time. The complainant noted that the intruder had very rough hands. The intruder then committed the offences described by the counts in the indictment. In the course of the assault, the complainant felt a screwdriver under the pillow which she had not put there and she moved it to the floor. The assault ended when the complainant told the intruder that her sons would soon be arriving and the intruder left at about dawn. The complainant suffered pain which caused her to scream during the sexual assault and she suffered bruising and abrasions to the face, a laceration to her finger, bruising and abrasions to an arm and bruising and lacerations to the vagina. During the course of the assault, the complainant continually begged the assailant to let her go. The complainant did not get a good look at her assailant because he had placed a doona over her head and she suffered from poor eyesight. She did see some of his features.
The police found a shoe impression outside the complainant's bedroom window. The size of the impression and shape was consistent with the shoes seized from the appellant.
The police also took swabs from the complainant and a number of other items including the complainant's singlet, nightdress, doona and sheets. The belt and the screwdriver were also taken by the police. DNA that matched the intruder's was recovered from swabs taken from the complainant's body, from the singlet, the nightdress, the belt recovered from the complainant's bathroom floor, the doona, the sheets and the screwdriver. When the police interviewed the appellant later that day the appellant provided the police with a black t‑shirt or polo shirt that he had been wearing the night before. That fitted the description of the complainant as to what the intruder was wearing. He also provided a buccal swab which was sent for analysis at PathWest and which provided the DNA which was compared with the DNA found in the complainant's house. The prosecution called Dr Hallam, a forensic scientist in forensic biology, who gave evidence that the appellant's DNA profile either matched, or could not be excluded as being, the DNA from the items referred to above.
The appellant denied being the assailant. He gave evidence that he had been with his partner for 13 years and that they had lived together for about 11 years. He knew the complainant and had attended the complainant's house to help her with jobs around the property. On Friday 25 August 2006, the appellant went to work. He worked as a brickie's labourer. After work the appellant attended a quiz night at the Swan Yacht Club along with his de facto partner. He consumed alcohol at the function. The appellant wanted to continue socialising in Fremantle after the function and his partner did not. The appellant and his partner had argued at the function. The appellant was dropped off in Fremantle. He said that at about midnight he attended the 'Harbourside' where he consumed 'a fair few drinks' and then met 'a couple of gentlemen in the car park'. He asked for a lift home with them and they obliged. The appellant gave evidence that he woke his partner at his home at about 3.45 am when he entered the bedroom. The appellant's partner was still angry with him and told him she did not want him in the bedroom. He gave evidence that he drank beer with the two men who had given him a lift home in the appellant's shed, but when the two men left the appellant went inside his home, turned on the television and fell asleep on the couch. According to his partner, the appellant was awoken by his son at about 5.45 am when the son entered the lounge room. The appellant denied that the belt found was his and his partner gave evidence that the belt was not his.
The trial judge's directions to the jury
It is not necessary to refer to the directions given by his Honour other than to set out a passage of the summing up where his Honour dealt specifically with the evidence of Dr Hallam. His Honour said:
[S]o far as the DNA is concerned, you will recall that in cross‑examination Dr Hallam's evidence was challenged.
Defence had obtained an opinion from a Dr McDonald, which apparently joined issue with some parts of Dr Hallam's conclusions. In other respects, he apparently agreed with her conclusions. Dr Hallam responded to each criticism that was put to her. The criticisms put to her are not evidence; they were read by counsel from the report, and of course what counsel says is not evidence, it is what witnesses say that is evidence.
Dr Hallam's answers of course are evidence. As we know, Dr McDonald didn't give any evidence, and we don't know in any event what his qualifications or expertise in these matters are. Accordingly in this case, Dr Hallam's evidence stands unchallenged by other evidence, and so you might find that her evidence should be accepted (emphasis added) (ts 381).
The part of the passage emphasised is emphasised because the appellant makes complaint about it in relation to one of the grounds of appeal.
Jury's request for transcript
About two and a half hours after the jury retired, the trial judge received a request from the jury that they be provided with the transcript of the evidence given by the complainant. The trial judge consulted counsel for both parties and the transcript records the following exchange:
Counsel for the Appellant 'I have no problem with that, your honour.'
The learned Judge 'In large part her evidence is not contentious in any event.'
Counsel for the Appellant 'No.'
Counsel for the Respondent 'No, no issue, your honour' (ts 398).
The transcript of the complainant's evidence was then given to the jury. The trial judge's observation that the evidence of the complainant was not contentious was correct. The appellant did not suggest in cross‑examination that the acts described by the complainant had not taken place. The appellant's evidence was that he was not the person who had committed them. The only witness who gave evidence about what occurred in the complainant's bedroom was the complainant herself.
Grounds of appeal
The appellant's grounds of appeal read:
1.The learned trial Judge erred in the exercise of his discretion by providing the jury with a copy of the entire transcript of the Complainant's evidence in circumstances where such a course was likely to unfairly prejudice the appellant's case and cause the jury to focus undue attention on particular statements in a written transcript rather than evaluating the whole of the evidence.
2.The learned trial Judge erred in law by telling the jury that as Dr Hallam's evidence was unchallenged by other evidence that they 'might find that her evidence should be accepted' thus reversing the onus of proof in relation to the issue of whether the jury could be satisfied beyond reasonable doubt as to the reliability of the DNA evidence.
The appellant had earlier been refused leave to appeal on other grounds.
The ground concerning the transcript
The appellant submitted that it is the usual practice for trial judges to remind juries that if they wished to be reminded of specific aspects of a witness' evidence or evidence relating to certain matters, that those parts of the evidence can be read. Reference was made to R v Fowler [2000] NSWCCA 142 [92]. The appellant in his written submissions accepted that the trial judge did have the power to make the transcript available to the jury.
The appellant's submission was that the provision of the entire transcript of the complainant's evidence could lead to unfair emphasis and undue attention being given to her evidence.
The appellant referred to R v Tichowitsch [2006] QCA 569 where Williams JA said at [11] ‑ [12] (Keane JA and Philippides J agreeing):
But it does not follow that transcripts of evidence should be given to juries during their deliberation as a matter of course. The decision whether or not to do so involves an act of judicial discretion which must be exercised according to relevant principles. As already noted there must not be any imbalance in favour of one side rather than the other. That does not mean that part only of the evidence at trial may not be supplied; but if part only is supplied, all evidence on the particular point should be included.
Further, in determining whether or not to exercise the discretion, the statement of Gibbs J in Driscoll must be kept in mind. There will always be a danger that in a particular case a jury will focus undue attention on particular statements in a written transcript rather than on evaluating the whole of the evidence.
There can be no doubt about the power the trial judge had to provide the transcript.
Section 110 of the Criminal Procedure Act 2004 (WA) reads:
Jury may be given records etc. to assist understanding
(1)On the application of a party or on his or her own initiative, the judge may order that the jury be given, on any conditions the judge orders, any record (including any document in the court’s record) or thing that may assist the jury to understand the issues or the law, or to understand and assess the evidence.
(2)Such an order may be made at any time in a trial before the jury gives its verdict.
The word 'record' where it first appears in s 110(1) should be given its ordinary meaning and the appellant did not contend otherwise. This is clear because the 'court's record', meaning the formal record, is referred to in brackets. The transcript of evidence is, in its ordinary meaning, a record. In any event, the transcript is a 'thing' within the meaning of s 110.
The discretionary power conferred must be exercised judicially and so as not to give rise to a miscarriage of justice. Where there are competing versions of an event then it may be necessary, if a transcript is to be given to the jury, to provide a transcript of evidence given by other witnesses about the event. It may be that in some such cases an appropriate direction might be sufficient to guard against any imbalance in favour of one side or the other. Each case will depend on its own circumstances. In this case, because of the appellant's denial that he was the intruder, there was no other transcript of evidence about the events in the complainant's bedroom on the night of the attack. Both parties consented to the provision of the transcript and the consent given on behalf of the appellant was by experienced senior counsel.
In Gately v The Queen [2007] HCA 55; (2007) 232 CLR 208 a similar issue arose, although it concerned a case where the jury was given unrestricted access during their deliberations to a pre‑recorded video of the complainant's evidence. The plurality (agreeing with Hayne J) held that the way in which the jury had viewed the evidence without the court reconvening was irregular, but that in the circumstances there had been no miscarriage of justice. The reasons do not suggest that there was any equivalent of s 110 of the Criminal Procedure Act 2004 (WA) but it does not appear that this is a significant distinguishing factor. In Gately's case, counsel for both parties consented to the jury having access to the video evidence. Hayne J at [77] concluded that great importance must be attached to that consent in considering whether there had been a miscarriage of justice. Gately's case also provides authority for the conclusion reached above, that the discretionary power must be exercised judicially and in a way which guards against any imbalance in favour of one side or the other. See Gately [96]. In Gately's case the accused did not give evidence and the fact that the trial judge did not warn the jury against giving the video evidence undue weight was not a miscarriage of justice.
In this case, although the appellant denied that he committed the offences, he advanced no competing evidence about what happened to the complainant in her bedroom during the attack.
The appellant submitted that for the jury to be permitted to re‑read the transcript of the horrific attack on the complainant would over‑emphasise the nature of that evidence and prejudice the appellant. That submission cannot be accepted. The jury had heard the evidence of the complainant. It was referred to by the judge and counsel. The transcript was nothing more than an accurate record of the complainant's evidence and may have assisted the jury in determining whether each of the incidents constituting the offences had occurred. There was no miscarriage of justice and this ground should be dismissed.
The ground concerning the direction about Dr Hallam's evidence
It is clear that the appellant by his plea of not guilty, his evidence at trial and his defence generally, sought to raise a doubt about whether the DNA recovered from the complainant and various objects was his DNA. Dr Hallam was cross‑examined at length. The trial judge made it appropriately clear to the jury that the appellant was challenging the DNA evidence. The trial judge correctly directed the jury that although Dr Hallam was an expert in the area of DNA, the jury had to decide whether they accepted or rejected the evidence.
The appellant submits that the trial judge's direction referred to above, and particularly the emphasised part which reads:
Accordingly, in this case, Dr Hallam's evidence stands unchallenged by other evidence, and so you might find that her evidence should be accepted (ts 381).
'fundamentally reversed the onus of proof with respect to the most critical aspect of the prosecution's case, namely the DNA evidence'. The appellant submits that the direction 'suggested to the jury that there was an onus upon the appellant to call evidence to rebut the prosecution's evidence'. The appellant submits that the fundamental question was whether the prosecution had proved the evidence beyond reasonable doubt, not whether the defence had called evidence to rebut Dr Hallam's evidence and that the impression created caused the trial process to fundamentally miscarry.
Those submissions cannot be sustained. Earlier in the summing up the trial judge had made it plain that the onus of proof to prove the case beyond a reasonable doubt was on the prosecution and he repeated this after referring to Dr Hallam's evidence. The passage in the summing up which is emphasised above, and about which the appellant complains, contains the unremarkable and correct statement that Dr Hallam's evidence was unchallenged by other evidence. The comment by his Honour that 'so you might find that her evidence should be accepted' is merely a comment about the conclusion which the jury might sensibly reach. The jury knew from other parts of the summing up that this was only a comment and did not bind them to reach that conclusion. In my opinion there was no miscarriage of justice and ground 2 should be dismissed.
Sentence appeal
There is one ground of appeal which reads:
1.The learned sentencing Judge erred by failing to properly apply the 'totality principle' and thereby imposed a total aggregate sentence that was manifestly excessive.
Particulars
a)The learned sentence [sic] Judge failed to properly consider the fact that all the offences arose from the one episode.
b)The learned sentencing Judge erred by ordering that the sentences in relation to counts 2, 6 and 7 be served cumulatively upon each other thereby arriving at a sentence that was both:
i.disproportionately long when regard is had to the appellant's overall criminality; and
ii.a 'crushing' sentence.
The sentencing judge was informed that the appellant had no record of violent offences or sexual offences. Clearly he had a problem with alcohol because he had several alcohol‑related driving offences. He had a good work history and many references were tendered from persons who said the conduct proved by his convictions was out of character. He had a stable relationship with his de facto, children and stepchildren. His counsel submitted that he was remorseful, he was sorry for the complainant; he felt shock and horror for her and that he had sympathy for her. The sentencing judge however said that this should be given 'relatively little weight in comparison with the need to protect the community by deterring this type of offending' (ts 439). I would add that this did not amount to true remorse because he did not admit that he was the offender. The sentencing judge noted the hardship that had been brought on his partner, family and friends by reason of his offending, but said that little weight should be given to this factor in sentencing for the offences.
The sentencing judge had before him victim impact statements from the complainant. One was dated January 2007 and another 1 April 2008. They set forth in graphic detail the extraordinary and devastating impact that the offending had upon the complainant. His Honour noted that her health, general state of wellbeing and her life generally, had been impacted on enormously. His Honour noted that the complainant was 77 years of age at the time of the offence and that the impact statements, although they could not be used to increase the sentence which would otherwise have been imposed, did however, to some extent, negate the mitigating factors there were in the case. His Honour then noted that he would weigh up all the complimentary and supportive things that had been said about the appellant and balance those against the consequences of his offending. His Honour noted that the offences were humiliating for the complainant; it was a violent ordeal against a vulnerable person living alone in her house. His Honour noted that the offending occurred in the middle of the night or early hours of the morning and was accompanied by various circumstances of aggravation, including the fact that the appellant carried a weapon in the form a screwdriver. His Honour noted that the complainant cried out and asked the appellant to stop his attack. She screamed in pain when her vagina was penetrated and the appellant did not desist.
His Honour concluded that all of the circumstances led him to the view that the offending was at the higher end of the scale for this type of offending. That conclusion is not challenged on this appeal.
His Honour noted that the dominant sentencing considerations for this type of offending are punishment for the offender and personal and general deterrence. His Honour considered that, in view of the appellant's past good character and the consequence of this offending, it was perhaps unlikely that he would offend in this way again in the future. His Honour noted that on the other hand, general deterrence is an important consideration and that sentences imposed should reflect the seriousness of the offending; condign punishment is always required for this type of offending. No pre‑sentence report or psychological report were called for by the sentencing judge and none were requested by counsel.
The ground of appeal is that the sentencing judge failed to 'properly' apply the 'totality principle'. It recognises that his Honour clearly had in mind issues of totality. This is correct because his Honour said:
The total of all these offences is 40 years' imprisonment. To order that all the sentences be served concurrently [sic] would undoubtedly result in an inappropriate measure of the total criminality of your conduct. Plainly considerations of totality arise here. Because a sentence is considered to increase considerably in severity as its length increases and because of the need to avoid a crushing term of imprisonment there must be some considerable concurrency in sentence. This principle rather than the so‑called one transaction rule is the appropriate principle to apply when considering issues of concurrency since in the circumstances of this case concurrency of all terms of imprisonment would not adequately … reflect the overall criminality of [the appellant's] conduct. Authority for that statement is to be found in … Turaga [2006] WASCA 199 at [20] and the authorities there referred to (ts 441 ‑ 442).
His Honour then said:
In my considered assessment the total criminality of the offending warrants a total effective sentence of 18 years' imprisonment prior to a one‑third reduction. I would achieve that sentence by ordering that the sentences for count 7, vaginal penetration; count 6, oral penetration; and count 2, the assault occasioning bodily harm be served cumulatively with each other and that the other sentences be concurrent (ts 442).
The effect of the accumulation in relation to those three sentences and concurrency in relation to the others gave a total of 12 years' imprisonment. The appellant was made eligible for parole. Time spent in custody was taken into account.
Appeal principles
This court is not entitled to intervene merely because it would have exercised a sentencing discretion in a manner different from the sentencing judge: Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665. Where the complaint is that the total effective term for multiple offending is manifestly excessive the contention is that the total sentence offends the totality principle. That principle requires a judge who is sentencing an offender for a number of offences to ensure that the aggregation of the sentences imposed for each offence is a just and appropriate measure of the total criminality involved: Postiglione v The Queen [1997] HCA 26; (1997) 189 CLR 295, 307 ‑ 308.
The fact that multiple offences occurred as part of one transaction does not require that all the sentences be served concurrently if that would result in an inappropriate measure of the total criminality of the conduct: R v Faithfull [2004] WASCA 39; (2004) 142 A Crim R 554. A cumulative sentence may however offend the totality principle if its effect is crushing in the sense that it will connote the destruction of any reasonable expectation of useful life after release: Martino v The State of Western Australia [2006] WASCA 78 [16].
Both parties placed particular reliance on the case of Ugle v The State of Western Australia [2007] WASCA 199. That was a case involving an offence by a man also in his thirties. He gained entrance after knocking on the complainant's bedroom window. A series of indecent assaults and sexual penetrations followed. The appellant in that case had a deprived background. He had been exposed to violence, alcoholism and neglect. He was a polysubstance abuser. He was affected by amphetamines and alcohol on the night he committed the offences. He had a bad record, including one which bore some similarities to the offences then committed. The sentencing judge arrived at a total effective term by orders of cumulation and concurrency of 17 years 1 month and then reduced the sentence by one‑third to accommodate the transitional provisions under the Sentencing Legislation Amendment and Repeal Act 2003 (WA). Having done so, the sentencing judge considered that the result was 11 years 1 month (although in fact, as Owen JA pointed out in the Court of Appeal reasons, that figure came down to a figure of something a little in excess of 11 years 4 months, not 11 years 1 month).
The appellant, Ugle, was given credit for pleading guilty and this resulted in a 10% reduction for the guilty pleas. Owen JA set out details of a number of other cases producing a range of sentences which satisfied the Court of Appeal in Ugle's case that there had been no error in the sentencing in that case. Owen JA said:
It is true … that none of the cases I have mentioned resulted in a sentence of 11 years (or thereabouts) for sexual offending in circumstances bearing some features that were present in the appellant's misconduct. But this, in itself, does not demonstrate error. The question is whether the sentencing discretion was exercised in error because, for example, a relevant factor was overlooked or given insufficient weight or because it proceeded on an erroneous principle or, alternatively, the sentence is, in itself, unreasonable or unjust. The first two of those possibilities are not present in this case. The only question is whether the aggregate sentence of 11 years and 1 month was outside the range that could be imposed in the sound exercise of the sentencing discretion (13 ‑ 14).
Owen JA concluded at [42] that the conduct was correctly characterised as being 'at the high end of the offending for this type of offence'. His Honour noted that quite apart from the home invasion and (and thefts in that case) there were two separate acts of sexual penetration committed in a violent and demeaning manner and resulting in physical, as well as emotional harm. His Honour noted that the sentence was at the upper end of the range of sentences that could properly have been imposed but given all of the circumstances, it was not outside the available range. If the 10% reduction for the plea of guilty is ignored the sentence in Ugle's case would have exceeded a sentence of 12 years.
Another case which has some features which are similar to the offences in this case is The State of Western Australia v Turaga [2006] WASCA 199. In that case the appeal was by the State against an inadequate sentence, a total effective sentence of 4 years 6 months (post‑transitional). McLure JA, with whom Buss JA agreed, said that the offending warranted a total effective sentence of 8 years 6 months (post‑transitional), but which was reduced to 7 years 4 months 'because of the principles applicable to State appeals' [38]. A 25% discount for a fast‑track plea of guilty had also been allowed. Those adjustments must be made before the total sentence in Turaga's case can be compared with the total sentence in this case. If the factors of State appeal and plea of guilty are taken out of the sentencing process in Turaga's case, the sentence would have exceeded 12 years. In that case the offender had previously committed similar offences against the same complainant who was his former wife and the conduct was calculated to demean, degrade and humiliate the complainant.
Finally, reference should be made to the case of The State of Western Australia v Akizuki [2008] WASCA 267. In that case Steytler P reviewed a large number of cases involving sexual penetration, including those of Ugle and Turaga. Having completed the review of cases, Steytler P said:
As might have been anticipated, this review of the cases reveals that the circumstances of sexual offending, and of sexual offenders, are almost infinitely variable. That, in turn, means that the sentence imposed in one case can provide only very limited guidance in deciding what sentence should be imposed for a similar offence in another case. However, some conclusions can be drawn, as follows:
(1)An average starting point for a case of penile penetration of the vagina without consent, absent circumstances of aggravation, is in the order of 7 years' imprisonment under the former sentencing regime, or around 4 years and 8 months' imprisonment under the transitional regime. That starting point takes no account of any factors in mitigation.
(2)Because the circumstances of sexual offending and sexual offenders are so variable, nothing will be achieved by specifying a range of sentences customarily imposed. The range of potential aggravating features is so huge that features of that kind can either dramatically increase the sentence imposed (bearing in mind that the maximum sentence for an aggravated offence is 20 years' imprisonment: s 326 of the Criminal Code) or have little or no effect on the sentence imposed. The range of potential mitigating factors is at least equally extensive. They might result in a very large reduction in sentence or little or no reduction.
(3)Nor will anything be achieved by specifying a different starting point for each category of sexual penetration without consent. It should not be assumed that one form of sexual penetration is necessarily more, or less, serious than another. As Wheeler JA pointed out in C v The State of Western Australia [2006] WASCA 261 [35], there is no 'hierarchy of sexual penetration'. For example, although digital penetration will ordinarily be less serious than penile penetration, that is not inevitably so. It might, in particular circumstances, be no less serious or even more serious. The seriousness of every offence of unlawful sexual penetration must be determined by its own individual circumstances: C [35] (Wheeler JA); Cavill [266] ‑ [267] (Miller JA).
That seems to me to be about as much guidance as can be obtained from the cases. I appreciate that it is less than sentencing judges might wish. However, that is a necessary consequence of the court's obligation to tailor each sentence to the individual circumstances of the case, having regard for the maximum penalty provided by the legislature and, to the extent that they can be of assistance, sentences customarily imposed in similar circumstances [68] ‑ [69].
Having read the review of cases in the Akizuki case, there is nothing which suggests that any other sentence should have been imposed. In my opinion the total sentence imposed in this case by the sentencing judge was a sentence which, although heavy, was within the range of sentences which could be properly imposed. Because the offender's identity was concealed, because he took steps to keep the complainant's head covered, because he ignored the complainant's pleas for him to stop and her screams of pain, his Honour was entitled to tend to the high end of the range of sentences, notwithstanding that the appellant had never offended
in this way before. The fear that this type of offending engenders; the fact that it was a violent sexual assault by an unknown offender during a night‑time home invasion; the extended damaging effect that these offences have had on the complainant's sense of security and future wellbeing; and the appellant's lack of mercy, are particularly aggravating factors.
The appeal should be dismissed.
BUSS JA: I agree with Pullin JA.
MILLER JA: I agree with Pullin JA.
12
12
2