Free v The State of Western Australia

[2006] WASCA 259

FREE -v- THE STATE OF WESTERN AUSTRALIA [2006] WASCA 259

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2006] WASCA 259
Court:	THE COURT OF APPEAL (WA)
Case No:	CACR:24/2006	Heard:	16 NOVEMBER 2006
Coram:	STEYTLER P WHEELER JA McLURE JA	Delivered:	28/11/06
No of pages:	9	Judgment Part:	1 of 1
Result:	Appeal allowed and appellant re-sentenced
Category:	B
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Parties:	LESLIE FRED FREE THE STATE OF WESTERN AUSTRALIA
Catchwords:	Criminal law and procedure Sentencing Deprivation of liberty and sexual assaults Whether total effective sentence infringed the totality principle Turns on own facts
Legislation:	Criminal Code (WA), s 323, s 324, s 333, s 338(d)
Case References:	Holder & Johnston (1983) 13 A Crim R 375 Lowndes v The Queen (1999) 195 CLR 665 Postiglione v The Queen (1997) 189 CLR 295 Vlek v The Queen, unreported; CCA SCt of WA; Library No 990153; 29 March 1999 Dinsdale v The Queen (2000) 202 CLR 321 Ginder (1987) 23 A Crim R 1 Lauritsen v The Queen (2000) 22 WAR 442 Little v The Queen [2001] WASCA 87 R v Faithfull (2004) 142 A Crim R 554 Symonds v The Queen, unreported; CCA SCt of WA; Library No 980616; 28 October 1998 Trescuri v The Queen [1999] WASCA 172

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : FREE -v- THE STATE OF WESTERN AUSTRALIA [2006] WASCA 259 CORAM : STEYTLER P

WHEELER JA
McLURE JA

HEARD : 16 NOVEMBER 2006 DELIVERED : 28 NOVEMBER 2006 FILE NO/S : CACR 24 of 2006 BETWEEN : LESLIE FRED FREE

Appellant

AND

THE STATE OF WESTERN AUSTRALIA
Respondent

ON APPEAL FROM:

Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA

Coram : MAZZA DCJ

File No : IND BUN 112 of 2005, IND BUN 113 of 2005

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Catchwords:

Criminal law and procedure - Sentencing - Deprivation of liberty and sexual assaults - Whether total effective sentence infringed the totality principle - Turns on own facts

Legislation:

Criminal Code (WA), s 323, s 324, s 333, s 338(d)

Result:

Appeal allowed and appellant re-sentenced

Category: B

Representation:

Counsel:

Appellant : Ms C A O'Brien
Respondent : Mr K P Bates

Solicitors:

Appellant : Legal Aid WA
Respondent : State Director of Public Prosecutions

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

Holder & Johnston (1983) 13 A Crim R 375
Lowndes v The Queen (1999) 195 CLR 665
Postiglione v The Queen (1997) 189 CLR 295
Vlek v The Queen, unreported; CCA SCt of WA; Library No 990153; 29 March 1999


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Case(s) also cited:

Dinsdale v The Queen (2000) 202 CLR 321
Ginder (1987) 23 A Crim R 1
Lauritsen v The Queen (2000) 22 WAR 442
Little v The Queen [2001] WASCA 87
R v Faithfull (2004) 142 A Crim R 554
Symonds v The Queen, unreported; CCA SCt of WA; Library No 980616; 28 October 1998
Trescuri v The Queen [1999] WASCA 172

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1 STEYTLER P: I agree with McLure JA.

2 WHEELER JA: I have had the advantage of reading in draft the reasons for decision of McLure JA. I agree with those reasons and have nothing to add.

3 McLURE JA: This is an appeal against sentence. On 21 November 2005, the appellant was convicted on his own plea of guilty of two counts of deprivation of liberty contrary to s 333 of the Criminal Code (WA), three counts of indecent assault contrary to s 323 of the Criminal Code, two counts of aggravated indecent assault contrary to s 324 of the Criminal Code and one count of making a threat with intent to influence contrary to s 338(d) of the Criminal Code.

4 On 29 November 2005, Mazza DCJ sentenced the appellant to a total effective term of 6 years and 4 months' imprisonment with eligibility for parole. The sentences were as follows:

Indictment BUN 112 of 2005

Count	Offence	Date	Sentence
1.	Deprivation of liberty	4 June 2005	16 months imprisonment
2.	Making a threat with intent to influence	4 June 2005	1 year imprisonment
3.	Indecent assault	4 June 2005	2 years imprisonment
4.	Indecent assault	4 June 2005	2 years imprisonment

Indictment BUN 113 of 2005

Count	Offence	Date	Sentence
1.	Aggravated indecent assault	14 May 2005	2 years 4 months imprisonment

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2.	Aggravated indecent assault	14 May 2005	2 years 4 months imprisonment
3.	Indecent assault	17 September 2005	2 years imprisonment
4.	Deprivation of liberty	17 September 2005	2 years imprisonment

5 The effect of the orders for cumulation and concurrence made by the sentencing Judge was that sentences of 2 years, 2 years 4 months and 2 years were ordered to be served cumulatively and the rest of the sentences to be served concurrently.

6 The total effective sentence of 6 years and 4 months equates to 9 years and 6 months under the former sentencing regime. The appellant appeals against his total sentence.

7 On 17 May 2006, Wheeler JA granted leave to appeal on grounds 1, 2 and 5 in the appellant's case dated 21 April 2006. The grounds of appeal are as follows:

"1. The Learned Sentencing Judge erred in law by imposing a total sentence of 6 years and 4 months imprisonment that was manifestly excessive considering the Appellant's early pleas of guilty and his personal circumstances. [Particulars supplied]

2. The Learned Sentencing Judge erred in law by placing inappropriate emphasis on general deterrence and specific deterrence in sentencing the Appellant notwithstanding evidence of the Appellant's mental illness. [Particulars supplied]

5. The Learned Judge erred in failing to apply the totality principle, namely that the [total sentence] was disproportionate to the overall criminality of the case having regard to the personal circumstances of the offender."

8 The facts are as follows. On 14 May 2005, the first complainant, F, and her boyfriend had an argument and the police were called. In order to evade the police, F's boyfriend jumped into the Leschenault Inlet nearby.
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F walked around the shore of the inlet trying to talk to her boyfriend. As she was doing so, the appellant approached her and asked if she was alright. F did not take much notice of the appellant and continued to call to her boyfriend. A short time later, the appellant knocked F into some bushes, pinned her to the ground and placed his hand over her mouth. The appellant said, "If you want to live, you'll do what I say" and "I don't want to have sex with you. I just want to lick your pussy". F tried to scream to her boyfriend for help and the appellant said to her, "If you don't want to die, you'll calm down". He then said, "Just let me suck your nipples". The appellant then sucked her nipples. F eventually escaped and went to the police who took DNA samples from her clothing which were later analysed to be consistent with the appellant's DNA. These are the facts in relation to counts 1 and 2 on indictment BUN 113 of 2005.

9 On 4 June 2005, the second complainant, M, was walking home alone in the early hours of the morning. The appellant knocked M to the ground onto her back and into some bushes. The appellant pinned M down and said something like, "Shut up or I'll rape you. I just want your bag or I'll rape you". M resisted and the appellant put his hand over her mouth and nose, making it difficult for her to breathe. The appellant grabbed M on her breasts and crotch area. He kept saying, "Shut up or I'll rape you". The appellant tried to get M's shoulder bag and eventually succeeded. He ran off, but after he had run a short distance, M asked for her keys which the appellant gave to her. In that process, M recognised the appellant, whom she had apparently previously met. These are the facts in relation to the charges on indictment BUN 112 of 2005.

10 On 17 September 2005 at about 1.05 am, the third complainant, L, was walking home alone after a night out with friends. The appellant approached L from behind and put one hand on her mouth and one arm around her throat and forced her to the ground. The appellant said, "I want your purse and I want you". L asked the appellant what his name was and he replied "Fred". The appellant placed his hand on the area of L's vagina on the outside of her clothing. L said, "No no, no, don't do this", to which the appellant replied, "Just let me do this then I will leave you by yourself". The appellant was restraining L from behind and she was struggling to get away. The appellant tightened his grip and then brushed his hand lightly over her genital area. L eventually broke free and ran away to the police station and reported the matter. These are the facts relating to counts 3 and 4 on indictment BUN 113 of 2005.

11 The offences committed on 17 September 2005 occurred whilst the appellant was on bail for the offences committed on 4 June 2005. The

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appellant volunteered to police that he had committed the offences against L. Such co-operation can be mitigatory: Ryan v The Queen (2001) 206 CLR 267.

12 The appellant was aged 44 at the time of sentencing. He is single and has never married and has no children. The appellant was engaged to be married at the age of 21, but his fiancée died a week after the engagement and he has not had a meaningful relationship since then. His father died in 2003 and the death had a profound impact on the appellant.

13 The appellant worked as an industrial plumber, but due to a series of workplace injuries to his head and both his knees, the appellant has not worked for the last 10 to 12 years. The ongoing problems and chronic pain in his knees has restricted the appellant's mobility and enjoyment of life. The injuries have contributed to the appellant's sustained high level alcohol abuse, ongoing depression and other health problems. However, the sentencing Judge found that the appellant did not suffer from any psychiatric illness that mitigated punishment, but that he had "personality difficulties" and a "depressive disorder". That conclusion is supported by the evidence.

14 The sentencing Judge described the appellant as "lonely, isolated and frustrated by female rejection". The appellant had been viewing pornography that depicted sexualised violence. The sentencing Judge found that the true motives of the offending were "basically violent and sexual". He also found that because of the modus operandi that the appellant employed and the repetitive nature of the offending, the appellant posed "a significant ongoing risk to women". That is the assessment in the absence of specialist sex offender treatment. The appellant had expressed interest in receiving such treatment.

15 The appellant had a prior record of relatively minor offending that had not attracted a penalty of imprisonment, including a number of dishonesty and drink driving offences. Although the appellant does not have a record of sexual offending, he was convicted in May 2004 of being on premises without lawful excuse when he attempted to view three females undressing at their premises.

16 The appellant entered a fast track plea of guilty in relation to counts 1 and 2 on indictment BUN 113 of 2005 and early pleas of guilty in relation to the other offences.

17 The relevant legal principles for the disposition of this appeal are not in dispute. An appellate court is not entitled to intervene merely because

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it would have exercised the sentencing discretion in a manner different than the sentencing Judge: Lowndes v The Queen (1999) 195 CLR 665. It is entitled to intervene if a material error of fact or law is discerned in the sentencing Judge's reasons. Alternatively, error may be inferred if an individual sentence is manifestly excessive or if the total effective sentence offends the totality principle. The totality principle applies when a sentencing court is dealing with a defendant convicted of multiple offences. The rule that individual crimes must be punished proportionately to their gravity is qualified by the principle that sentences passed for individual crimes must not be allowed to result in an aggregate sentence which is inappropriately long, having regard to the course of criminal conduct viewed as a whole: Postiglione v The Queen (1997) 189 CLR 295 at 307 - 308 per McHugh J. The practical effect of the totality principle can be to arrive at an ultimate aggregate sentence that is less than that which would be arrived at by adding up the terms appropriate for the offences if each were viewed alone: Holder & Johnston (1983) 13 A Crim R 375 at 389 per Street CJ. When this occurs, the rationale is said to be that the sentencing court may see or assume that the offender will make progress towards rehabilitation during the term of the first sentence and that there is not the same demand for retribution where a person has already suffered loss of liberty and emphatic denunciation of his or her criminal behaviour and attitude: Vlek v The Queen, unreported; CCA SCt of WA; Library No 990153; 29 March 1999 per Anderson J.

18 The question for this Court is whether the sentencing Judge erred in the exercise of his sentencing discretion by imposing a sentence that was inappropriately long. I am satisfied that a total effective sentence of 6 years and 4 months (9 years and 6 months under the former sentencing regime) is more than is fairly necessary to achieve all the recognised sentencing objectives, including punishment, retribution and deterrence. I have reached that conclusion for the following reasons. The appellant's actual (as distinct from threatened) sexual misconduct is at the low end of the scale of seriousness of crimes of that type and in some respects is atypical, perhaps reflecting his unfortunate life circumstances. He accepts he has a problem and is willing to participate in specialist sex offender treatment. He had not previously committed an offence that warranted a term of imprisonment, had co-operated with police in volunteering information about offences with which he had not been charged and pleaded guilty to the offences. The seriousness of the offending, highlighted by his use of violence, is adequately recognised and all relevant sentencing objectives can in my view be achieved by imposing a
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total effective sentence of 5 years' imprisonment (which equates to 7 years and 6 months' imprisonment under the former sentencing regime). That can be achieved by making the sentences of 1 year and 2 years for counts 2 and 3 on indictment BUN 112 of 2005 and the sentence of 2 years for count 3 on indictment BUN 113 of 2005 cumulative and the rest of the sentences concurrent.

19 Accordingly, I would allow the appeal, set aside the orders for cumulation and concurrence made by the sentencing Judge and in lieu thereof order that the sentences on counts 2 and 3 in indictment BUN 112 of 2005 and count 3 in indictment BUN 113 of 2005 be served cumulatively and the balance of the sentences be served concurrently, resulting in a total effective sentence of 5 years. The appellant will be eligible for parole after serving 3 years.