Harris v The State of Western Australia
[2022] WASCA 84
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: HARRIS -v- THE STATE OF WESTERN AUSTRALIA [2022] WASCA 84
CORAM: BUSS P
MAZZA JA
HEARD: 7 APRIL 2022
DELIVERED : 15 JULY 2022
FILE NO/S: CACR 6 of 2022
BETWEEN: EDWARD WALTER HARRIS
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram: PRIOR DCJ
File Number : IND KAL 4 of 2019
Catchwords:
Criminal law - Application for leave to appeal against sentence - Appellant sentenced to total effective sentence of 16 years' imprisonment for one count of aggravated home burglary and one count of aggravated sexual penetration without consent committed in the course of conduct that constitutes an aggravated home burglary - Whether sentence of 16 years' imprisonment for count 2 was manifestly excessive in circumstances where mandatory minimum sentence was 15 years' imprisonment
Legislation:
Criminal Code (WA), s 326, s 401(2)(a)
Sentencing Act 1995 (WA), s 6(1)
Result:
Leave to appeal refused
Appeal dismissed
Category: B
Representation:
Counsel:
| Appellant | : | Mr J Gullaci & Mr J R Murphy |
| Respondent | : | No appearance |
Solicitors:
| Appellant | : | Aboriginal Legal Service - Perth (Criminal) |
| Respondent | : | Director of Public Prosecutions (WA) |
Case(s) referred to in decision(s):
Bugmy v The Queen [2013] HCA 37; (2013) 249 CLR 571
R v Kilic [2016] HCA 48; (2016) 259 CLR 256
The State of Western Australia v Clark [2020] WASCA 103
Wilson v The State of Western Australia [2010] WASCA 82
JUDGMENT OF THE COURT:
This is an application for leave to appeal against sentence.
The appellant was convicted after trial of one count of aggravated home burglary contrary to s 401(2)(a) of the Criminal Code (the Code) (count 1) and one count of aggravated sexual penetration without consent committed in the course of conduct that constituted an aggravated home burglary contrary to s 326 of the Code (count 2).
The maximum penalty for count 1 is 20 years' imprisonment. Count 2, by operation of s 326(1) and (2) of the Code, is subject to a maximum penalty of 20 years' imprisonment and, because the appellant is an adult offender and the offence was committed in the course of conduct that constitutes an aggravated burglary, to a mandatory minimum period of at least 75% of the maximum penalty, that is, at least 15 years' imprisonment.
On 20 December 2021, the sentencing judge imposed a sentence of 4 years' imprisonment on count 1 and 16 years' imprisonment on count 2. He ordered that the sentences be served concurrently and that they commence on 31 October 2019. The appellant was made eligible for parole.
The appellant relies on a single ground of appeal which alleges that the sentence of 16 years' imprisonment on count 2 is manifestly excessive. For the reasons that follow leave to appeal should be refused and the appeal dismissed.
The facts
The appellant takes no issue with his Honour's summary of the facts, which may be briefly restated as follows.
At about 3.00 am on 3 July 2018, the appellant gained entry to the house occupied by the male complainant, L, and his partner, a woman, E. He did so by putting his hand through a locked security screen and unlocking the security door from the inside. The wooden front door through which he entered the house had previously been damaged and could not be locked.[1]
[1] Sentencing ts 2.
L was asleep on the couch in the lounge room. He was naked at the time. E was asleep in the master bedroom.
The appellant knelt next to the couch where L was sleeping. He then took L's penis into his mouth and performed fellatio on him until L ejaculated. L presumed that the person performing fellatio on him was his partner. However, he soon realised that this was not the case. L opened his eyes and saw the appellant. L punched the appellant in the face who immediately said 'I'm sorry, I'm sorry' and then ran for the door. L and the appellant began wrestling. L tried to detain the appellant. In the front yard, the appellant picked up a yellow Dolphin torch and struck L to the left side of his head, causing a small laceration which bled. L fell to the ground and after a short scuffle, the appellant left the premises. The appellant returned a few minutes later and requested that L return the appellant's thongs. L threw the thongs into his front yard.[2]
[2] Sentencing ts 3.
A short time after the offence, L reported the matter to the police and was medically examined. At 2.15 pm on 3 July 2019, the appellant was arrested at his house.[3]
[3] Sentencing ts 4.
At the time of the offences, the appellant was under the influence of alcohol, drugs and solvents.
His Honour found that neither offence was premeditated. In particular, the appellant did not enter the house with an intent to commit a sexual offence. His Honour described the aggravated sexual assault as involving 'spontaneous or opportunistic behaviour'. He said that the penetration took place over a short period of time.[4]
[4] Sentencing ts 9.
The appellant's background
At the time of the offences, the appellant was 22 years of age. He was 26 years old when he was sentenced. He is a Wangai and Yamatji aboriginal man.
The appellant's upbringing was dysfunctional. He was born while his mother was incarcerated in prison. She was unable to raise him. She died in 2015. The appellant's father was frequently in prison. The appellant was raised by his grandmother and sister. At a young age he was exposed to some level of family violence.[5]
[5] Sentencing ts 4.
The appellant's grandmother died when he was 13 years old. Her death had a significant impact upon him. The appellant was then placed in the care of the Department of Child Protection. Between the ages of 13 and 18 years, the appellant spent time in the homes of various relatives. He also served significant period of detention.[6]
[6] Sentencing ts 5.
As a young person the appellant experienced depression, suicidal thoughts and engaged in acts of self-harm.
The appellant attended school to year 10. Since then he has had some further education and training but he has never been employed.
When the appellant turned 18, he moved into his own home. At some point, a cousin moved in with him. In March 2018, the appellant's cousin took her own life. Without justification, the appellant was blamed for her death by some members of his family. Following this tragedy the appellant's use of alcohol, cannabis and solvents escalated.
The appellant has a lengthy criminal history as a child and as an adult. His adult criminal history includes offences of violence (three convictions for assaulting a public officer) and aggravated home burglary. At the time of the commission of the offences, the appellant was on a pre‑sentence order which had been imposed by the Kalgoorlie Magistrates Court in April 2018 for an offence of aggravated home burglary.
The appellant is in good physical health.
A psychological report written by Dr Jack White dated 23 March 2020, and provided to the sentencing judge on behalf of the appellant, revealed that although he did not meet the criteria for intellectual disability, he functioned at the borderline to low average level. His DSM-5 diagnostic profile included diagnoses of polysubstance use disorder, generalised anxiety disorder, post-traumatic stress disorder, adjustment disorder with depressed mood, attention deficit hyperactivity disorder and mixed (antisocial/borderline) personality disorder.[7]
[7] Report, Dr Jack White, 23 March 2020, page 20.
A later psychological report written by Dr Phil Watts dated 8 December 2021 noted the following:[8]
(a)Weschler Adult Intelligence Scale tests showed a mixture of average ability and clear signs of cognitive impairment, which impact the speed of the appellant's brain processing.
(b)The appellant's early history of significant emotional deprivation coupled with his cognitive impairment is likely to have significantly compromised his capacity to have mature thoughts and to learn from experience.
(c)The appellant 'has a somewhat confused sense of identity including his sexual identity and aboriginality'.
(d)The Static-99 actuarial risk assessment tool indicates that he poses a high risk of sexually reoffending.
[8] Report of Dr Phil Watts, pages 4 - 5.
Sentencing remarks
In his sentencing remarks, his Honour identified two aggravating factors. First, that at the time of the commission of the offences, the appellant was on a pre-sentence order. Secondly, that in respect of count 2, the victim sustained a minor injury in the physical confrontation with the appellant. Although his Honour did not characterise the victim's vulnerability, humiliation and embarrassment as aggravating factors, it appears from the remarks that he had regard to them in assessing the seriousness of the offending.[9]
[9] Sentencing ts 9.
His Honour identified a number of mitigating factors which he described as being 'substantial and significant'.[10] These included:
(a)the appellant was a young man, aged 22 years at the time of the offences;
(b)the appellant made admissions at his trial, which substantially reduced its length;
(c)although the appellant proceeded to trial he was genuinely remorseful for the offending;
(d)the appellant endured a traumatic childhood and grew up in an environment of alcohol abuse and violence and he experienced 'profound childhood deprivation'. His Honour said that the Bugmy[11] principles should be applied;
(e)the appellant was in the low average range of cognitive capacity and was possibly mildly intellectually disabled. His Honour said that these matters were relevant to the question of specific deterrence;
(f)the time spent by the appellant on remand in Perth meant that he had been isolated from family and friends; and
(g)given the length of any mandatory minimum sentence, some of his family and friends, due to their age, may pass away before he is released from custody.
[10] Sentencing ts 7 - 8.
[11] Bugmy v The Queen [2013] HCA 37; (2013) 249 CLR 571.
His Honour described the factual circumstances of the offending as 'towards the lower end of the scale for aggravated sexual penetration without consent', but they were not 'at the lowest level' having regard to the aggravating factors he had identified.[12]
[12] Sentencing ts 10.
It is clear from the sentencing remarks that his Honour was acutely aware of the mandatory minimum penalty that he had to apply in respect of count 2. He commented that absent the mandatory minimum penalty 'the length of sentence of imprisonment I would have imposed would have been much less'.[13] His Honour's comment is, no doubt, correct.
[13] Sentencing ts 9.
His Honour ordered that the sentence on count 1 be served concurrently with the sentence on count 2, as the offences arose out of the 'same set of criminal behaviour'.[14]
[14] Sentencing ts 10.
The appellant's submissions
It was submitted by Mr Gullaci on behalf of the appellant that his Honour should have, in all of the circumstances of the case, imposed the mandatory minimum term of imprisonment of 15 years for count 2.
Mr Gullaci submitted that, having regard to both the nature of the offence committed by the appellant and his personal circumstances, count 2 came within the least serious category of cases of its type and his Honour should have imposed the mandatory minimum penalty of 15 years' imprisonment.[15]
[15] Appeal ts 5.
As to the nature of count 2, Mr Gullaci pointed to his Honour's findings that the offence was not premeditated, that the offence was spontaneous or opportunistic and involved an act of sexual penetration which occurred over a short period of time. Further, counsel for the appellant pointed to his Honour's findings that the act of penetration did not involve violence or threats and that the appellant immediately apologised to L when L became aware of what had occurred. Mr Gullaci noted that his Honour characterised the offence as being 'towards the lower end of the scale' for offences of aggravated sexual penetration without consent.[16]
[16] Appeal ts 8.
As to the appellant's personal circumstances, Mr Gullaci pointed to the matters referred to by his Honour, including those summarised in [22] above.
Mr Gullaci submitted that the absence of a plea of guilty did not, in the circumstances of the present case, prevent a conclusion that count 2 came within the least serious category of case. This was because, having regard to the mandatory minimum penalty, it would not be unusual for someone in the appellant's position to proceed to trial. Further, the appellant cooperated in the trial process by making admissions and by limiting the issues to be decided.[17]
[17] Appeal ts 3 - 4.
General appellate sentencing principles
The general principles applicable to an appeal against sentence are well established. They have been set out in many cases decided by this court. The principles were comprehensively explained in Wilson v The State of Western Australia.[18] We adopt that statement without repeating it.
[18] Wilson v The State of Western Australia [2010] WASCA 82 [2].
Mandatory minimum sentences
In The State of Western Australia v Clark,[19] this court construed analogous statutory provisions to those applicable in this case, which impose a mandatory minimum penalty where an offence is committed in the course of an aggravated home burglary. The appellant accepts that this appeal must be decided within the statutory framework described in Clark.
[19] The State of Western Australia v Clark [2020] WASCA 103 [61] - [64].
The effect of the minimum and maximum penalties is that they operate as a floor and ceiling within which the sentencing discretion must be exercised. The manner in which the sentencing discretion operates within the floor and ceiling must reflect the general sentencing principles set out in the Sentencing Act 1995 (WA), including the fundamental sentencing principle of proportionality contained in s 6(1) of the Sentencing Act, as supplemented by the common law.
The maximum penalty of 20 years' imprisonment for the offence of aggravated sexual penetration without consent, contrary to s 326(1) of the Code, is to be imposed for the worst category of case. This concept was explained by the High Court in R v Kilic.[20] The mandatory minimum penalty of 15 years' imprisonment for count 2 when committed by an adult in the course of an aggravated home burglary is to be imposed for the least serious category of case. The circumstances of the offending, the circumstances of the offender and all aggravating and mitigating factors are to be considered in determining whether the case is of the least serious type.
[20] R v Kilic [2016] HCA 48; (2016) 259 CLR 256 [18] (Bell, Gageler, Keane, Nettle & Gordon JJ).
When sentencing an offender for a crime which is subject to a mandatory minimum penalty of the kind prescribed by s 326(2) of the Code, the appropriate sentence must be determined having regard to all relevant sentencing factors, including where the offending falls in the range between the least serious category of offending, for which the mandatory minimum penalty is appropriate, and the worst category of offending, for which the maximum sentence is appropriate.
Disposition
For an offence of aggravated sexual assault without consent committed in the course of an aggravated home burglary, the difference between the sentences for a case in the least serious category and a case in the worst category is 5 years' imprisonment. It is within this relatively narrow band that a sentencing judge must decide the appropriate term of imprisonment.
We do not accept the submission that, when the nature of the offence and the circumstances of the appellant are considered, count 2 was a case in the least serious category.
The offence had the aggravating features identified by the sentencing judge. Adding to the seriousness of the offending was the vulnerability of L, who was naked and asleep in his own home. While the act of penetration was relatively brief in time, it could not be said to be fleeting and resulted in L ejaculating. The offence caused humiliation for L. The appellant, in an attempt to thwart his apprehension, struck L in the head with the Dolphin torch causing a minor injury. Compared to other offences of its type, the objective facts and circumstances of the offending could not reasonably be said to be at the lowest end of the scale of seriousness.
There were, as the sentencing judge recognised, substantial and significant mitigating factors. It is unnecessary to repeat them. However, the appellant had a substantial history of prior offending including for aggravated home burglary and offences of violence (although not sexual violence). He was therefore not of prior good character for sentencing purposes. The evidence before the sentencing judge indicated that the appellant poses a high risk of sexual reoffending. He did not have the mitigation that a plea of guilty would have brought.
In our opinion, the appellant's personal circumstances, considered as a whole and when weighed with the facts and circumstances of the offending and all other relevant sentencing factors, do not permit the conclusion that the case is of the least serious type. Accordingly, it was not open to the sentencing judge to impose the mandatory minimum term of 15 years' imprisonment. A sentence somewhat longer than the mandatory minimum was required. Having regard to all of the relevant facts and circumstances and all relevant sentencing factors and bearing in mind the statutory floor and ceiling imposed by Parliament, the sentence of 16 years' imprisonment imposed upon the appellant was not unreasonable or plainly unjust. In our opinion it is not reasonably arguable that the sentence of 16 years' imprisonment was manifestly excessive.
Accordingly, leave to appeal should be refused and the appeal dismissed.
Orders
1.Leave to appeal is refused.
2.The appeal is dismissed.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
TW
Associate to the Honourable Justice Mazza
15 JULY 2022
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