Juma v The State of Western Australia
[2011] WASCA 54
•14 MARCH 2011
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: JUMA -v- THE STATE OF WESTERN AUSTRALIA [2011] WASCA 54
CORAM: McLURE P
NEWNES JA
MAZZA J
HEARD: 7 DECEMBER 2010
DELIVERED : 14 MARCH 2011
FILE NO/S: CACR 109 of 2009
BETWEEN: JASON JUMA
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram :SCHOOMBEE DCJ
File No :IND 17 of 2008
Catchwords:
Criminal law - Appeal against sentence - Sexual offences committed against sex workers - Whether first limb of totality principle infringed - Whether failure to give adequate weight to offender's personal circumstances - Whether age of 28 years is a mitigating factor - Whether hardship to offender's family is a mitigating factor
Legislation:
Criminal Appeals Act 2004 (WA), s 39(1), s 40(1)(e)
Result:
Application for extension of time refused
Appeal dismissed
Category: B
Representation:
Counsel:
Appellant: In person
Respondent: Mr B Fiannaca SC
Solicitors:
Appellant: In person
Respondent: Director of Public Prosecutions (WA)
Case(s) referred to in judgment(s):
Boyle v The Queen (1987) 34 A Crim R 202
Hodder v The Queen (1995) 15 WAR 264
Pollock v The State of Western Australia [2009] WASCA 121
R v Cleak [2004] WASCA 72
R v Lux (Unreported, NSWCCA, 26 August 1998)
R v Quartermaine [2000] WASCA 341
Roffey v The State of Western Australia [2007] WASCA 246
The State of Western Australia v Akizuki [2008] WASCA 267; (2008) 192 A Crim R 373
Vagh v The State of Western Australia [2007] WASCA 17
Warburton v The State of Western Australia [2009] WASCA 113; (2009) 196 A Crim R 361
Wimbridge v The State of Western Australia [2009] WASCA 196
JUDGMENT OF THE COURT: The appellant, who is self‑represented, seeks an extension of time within which to appeal and leave to appeal against sentence.
On 19 September 2008, the appellant was convicted, after a trial in the District Court before Schoombee DCJ and a jury, of seven offences of a sexual nature against two victims, being three counts of aggravated sexual penetration without consent, three counts of sexual penetration without consent and one count of attempted sexual penetration without consent.
On 11 November 2008, Schoombee DCJ sentenced the appellant as follows:
| Count | Description | Victim | Sentence |
| 1 | Aggravated sexual penetration without consent (digital) | TTN | 4 years and 8 months |
| 2 | Aggravated sexual penetration without consent (digital) | TTN | 4 years and 8 months |
| 3 | Aggravated sexual penetration without consent (penile) | TTN | 5 years and 4 months |
| 4 | Sexual penetration without consent (digital) | BP | 4 years and 8 months |
| 5 | Sexual penetration without consent (digital) | BP | 4 years and 8 months |
| 6 | Attempted sexual penetration without consent (penile) | BP | 2 years and 8 months |
| 7 | Sexual penetration without consent (penile) | BP | 5 years |
The sentences imposed with respect to counts 1 ‑ 3 were made concurrent, as were the sentences imposed with respect to counts 4 ‑ 7. Her Honour then ordered that the head sentence in respect of count 3 be made partly concurrent with the head sentence in respect of count 7, so that the total effective sentence imposed upon the appellant was 8 years' imprisonment. The appellant was made eligible for parole.
Extension of time
The appellant's appeal notice was filed over eight months out of time. Where, as in this case, there has been a lengthy delay, the court requires exceptional circumstances to be shown before granting an extension of time for leave to appeal, unless it can be shown that there will be a miscarriage of justice if the extension is not granted: Wimbridge v The State of Western Australia [2009] WASCA 196 [19]. In this case, whether there will be a miscarriage of justice if an extension is not granted depends on the merits of the proposed grounds of appeal.
The proposed grounds of appeal
The proposed grounds of appeal are as follows:
1.The learned sentencing Judge erred part in fact and part in law in imposing upon the Appellant a head sentence of eight (8) years imprisonment which term is out of proportion to the overall criminality involved namely two episodes three months apart of sexual penetration and attempted penetration, albeit aggravated by violence and a threat to kill.
2.The learned sentencing Judge erred part in law and part in fact in failing to give sufficient weight to the personal circumstances of the Appellant namely:
(a)the Appellant aged 19 fled Afghanistan his country of birth to escape the Taliban and in 1999 emigrated to Australia as a refugee: T3.8‑T4.2;
(b)despite the Appellant's limited capacity to read or write English or to speak or understand English the Appellant developed a business of which he was the sole owner and sole operator providing contract labour in Victoria and other States and at times employing 300 persons: T12.6;
(c)the Appellant supported his wife (whom he married in Pakistan) and their child then aged 3, his sickly elderly mother and his two younger brothers: T13.6;
(d)the Appellant did not consume alcohol or illicit substances: T12.9;
(e)the Appellant had no prior convictions in Western Australia or any other State or Territory;
(f)the Appellant was relatively young (aged 28);
(g)the Appellant had assisted a large number of refugees by finding them housing, work, schools, basic services and helping them financially and generally: T13.5;
(h)among ninety references before the Court some signed by more than one person there were descriptions of the Appellant as honest, hard working, trustworthy, compassionate and respectful: T13.6;
(i)in some respects the Appellant had led an exemplary life and made an important contribution to the community: T13.4;
(j)the Appellant came from a culture in which the rights of women, transsexuals and sex workers might not always be given the same emphasis as in Australia: (T14‑15).
3.The learned sentencing Judge erred in law in finding that the Appellant's relative youth (28) was not a mitigating factor (T15.3).
4.The learned sentencing Judge erred part in law and part in fact in deciding, in effect, that the Appellant's circumstances were not sufficiently exceptional as to justify the Court taking into account the effect upon the Appellant's family of the imposition on the Appellant of a long term of imprisonment.
The facts
The appellant does not challenge her Honour's findings of fact as to the circumstances of his offending. Those facts are as follows.
In March or April 2007, the appellant came, for business reasons, to Western Australia.
On 29 April 2007, the appellant sought the services of a sex worker, TTN. The appellant and TTN agreed that she would provide her services for half an hour for $85, on the condition that the appellant ejaculated only once and would use a condom. The appellant was reluctant to use a condom. The victim then thought that the appellant was too difficult, returned his money and asked him to leave.
At the door, the appellant grabbed one of the victim's breasts very hard and shoved his fist into her vagina (count 1). He said to her, '[l]et me fuck you with no condom or I'll kill you now'. The appellant told the victim that he would shove his hand up to her shoulder and that she would bleed and die (15/9/2008, ts 47).
The appellant then put his hands around the victim's throat and moved her to the bed. There he again put his fist into her vagina with a twisting motion (count 2). The victim pleaded with the appellant to stop, but to no avail. The appellant then inserted his penis into the victim's vagina and had sexual intercourse with her. The victim was not using any contraceptive, so she asked the appellant not to ejaculate inside her as she might become pregnant. The appellant nevertheless did so (count 3).
On 14 July 2007, the appellant sought the services of BP, a transsexual sex worker. As he had with TTN, he asked if he could have sex with the victim without a condom. The victim refused. The appellant was very persistent in his requests to have sex without a condom. Eventually, the victim returned the money that had been paid to her by the appellant and attempted to open the door to show the appellant out. The appellant, at this point, grabbed the victim around her neck and put three fingers into her anus, moving them in and out repeatedly (count 4). The appellant then carried the victim to the bed, where he inserted five fingers into her anus and pumped them in and out (count 5). The appellant then ordered the victim to undress.
The appellant attempted to insert his penis into the victim's anus. However, his penis was not fully erect, and the victim was moving around to get away from him (count 6). The appellant then pushed the victim onto the bed and inserted his penis into her anus for about five seconds (count 7).
The appellant's personal circumstances
The appellant was born on 5 March 1980. At the time of his offending, he was 27 years of age and, at the time he was sentenced, he was 28 years old. He was born in Afghanistan. The appellant reported to have had a good childhood. His family were relatively wealthy. He was educated to a year 9 level, before leaving school to help manage the family farm.
In 1999, he left Afghanistan after his father was taken prisoner by the Taliban. He arrived in Australia and was placed for a period of time in immigration detention. He was granted a protection visa. Later, he became an Australian citizen. In due course, he moved to South Australia where he established a labour hiring business called Sunshine Enterprises. Over time, the appellant came to employ about 250 ‑ 300 workers, many of whom were refugees from places such as Afghanistan and Iraq.
It is not disputed that the appellant did many good things for refugees, particularly in the area around Shepparton in Victoria. Her Honour was provided with more than 90 character references, some of which were signed by more than one person, attesting to, in general terms, the appellant's good works and reputation. Amongst the character references were letters of support from various ethnic and refugee associations. He was described as honest, hardworking, trustworthy, compassionate and respectful. The appellant, it was said, had gone out of his way to assist a large number of refugees by finding housing, work, schools, basic services, and providing financial and general support. He had no record of convictions.
The appellant's family situation
The appellant is married with a young child, now aged approximately 4 years of age. He is the sole bread winner for his wife and child as well as his mother and two of his younger brothers. The material before her Honour was to the effect that his family has been in financial difficulty since his imprisonment. The material also indicated that the appellant's wife, child and mother are emotionally distressed by the appellant's absence. The situation was complicated by the appellant's reluctance to tell his family why he had been incarcerated.
The appellant, in his oral submissions to this court on 7 December 2010, referred to some additional matters which he said were relevant to his family's situation. He was given leave to file an affidavit setting out these additional matters. On 5 January 2011, the court received this affidavit.
The appellant states in the affidavit that he has accumulated debts totalling approximately $150,000 ‑ $160,000. Most of this debt is made up of various loans the appellant took out to pay for his legal representation at trial. However, he states that he owes money to the Australian Taxation Office and a sum of approximately $25,000 ‑ $30,000 to past employees of Sunshine Enterprises for unpaid wages.
The appellant further states that his wife has been confronted by creditors demanding payment of the appellant's debts and that she is living under such financial and emotional stress that she has told him that she intends to kill herself.
Finally, the affidavit states that sometime after his imprisonment his vehicle was set on fire while parked in front of his house (the appellant showed the court photographs of the burnt vehicle on 7 December 2010). The appellant believes that his car was set on fire by one of his creditors.
There is a question as to the admissibility of this affidavit in the appeal. Section 39(1) of the Criminal Appeals Act 2004 (WA) provides that this court must decide an appeal on the evidence and material that was before the lower court. Section 39(1) is subject to the power given to this court in s 40(1)(e) of the Criminal Appeals Act to admit evidence which was not before the lower court.
The affidavit contains some inadmissible hearsay and opinion evidence. However, its contents are not objected to by the respondent. In light of this, we are prepared to allow the affidavit to be admitted into evidence in this appeal. We will consider later in these reasons whether its contents justify a reduction in the sentences imposed.
The psychological report
Her Honour called for and obtained a psychological report prepared by Ms Daniela Barbuzza, dated 31 October 2008. Ms Barbuzza noted that the appellant continued to deny committing the offences. She stated that the appellant failed to demonstrate any insight into his offending behaviour. She said that at the time of his offending he was living away from his wife, and that he turned to the victims to have his sexual needs met. She said that the appellant referred to the victims as being 'shit', and that this attitude was typical of his attitudes towards women outside of his family and of his religious belief systems.
Her Honour's sentencing remarks
Her Honour expressly took into account, as mitigating factors, the appellant's personal and cultural background, and his prior good works, describing him as having 'led an exemplary life in all other spheres'. She said that this factor may assist in the appellant's rehabilitation, as he is likely to wish to be seen by the community as a valuable citizen.
Relevantly to appeal grounds 3 and 4, her Honour was of the view that his age, 28 years, was not a mitigating factor, nor was the impact that his offending and sentence was likely to have upon his wife, child and other family members. As to the impact of his imprisonment, her Honour said:
I cannot take into account the fact that your offending and sentence is likely to cause hardship to your wife and child, your mother and your brothers. The impact which imprisonment may have upon an offender's family is not a factor in sentencing, except in exceptional circumstances. It is only where a member of the offender's family will be subjected to unusual hardship because of the sentence imposed upon the offender, that a court may regard this as a factor in sentencing.
Your counsel has submitted that your family will suffer extreme financial and emotional hardship. However, it is not unusual for members of an offender's family to suffer extreme financial and emotional hardship if the offender is imprisoned (AB 41).
Her Honour then cited the statement by Roden J in R v Lux (Unreported, NSWCCA, 26 August 1998):
It is unfortunate in the extreme when people with heavy family responsibilities, put the welfare of those who depend upon them at risk by involving themselves in criminal conduct which has the potential to produce prison sentences. When that natural consequence flows, in my view it is inappropriate to seek to put the burden, and almost indeed to put the blame, upon the courts.
Her Honour referred to the need to impose sentences that appropriately punish the appellant, protect the community, provide denunciation and aid rehabilitation. Her Honour gave particular emphasis to the serious nature of the appellant's offending and to the need to provide general and personal deterrence.
To give effect to the so‑called 'one transaction rule', her Honour ordered that the sentences with respect to each victim be served concurrently.
Her Honour then referred to the totality principle. She said that accumulation of the appropriate sentences would have resulted in a total sentence of 10 years and 4 months' imprisonment. She considered that this would not properly reflect the appellant's overall criminality, particularly in light of his personal circumstances. Accordingly, she directed that 2 years and 4 months of the head sentence in respect of count 3 be served concurrently with the head sentence in respect of count 7, resulting in the total overall sentence of 8 years' immediate imprisonment.
Ground 1 - the totality principle
Ground 1 alleges that the total effective sentence imposed upon the appellant offended the totality principle.
The totality principle has been examined in many decisions of this court. Its terms are in no doubt.
In Roffey v The State of Western Australia [2007] WASCA 246, McLure JA described the principle as follows:
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 the circumstances of the case, including those referable to the offender personally.
The second limb is that the court should not impose a 'crushing' sentence. The word crushing in this context connotes the destruction of any reasonable expectation of a useful life after release. An aggregate sentence may be inappropriately long under the first limb even if it cannot be described as crushing [24] ‑ [25]. (citations omitted)
Ground 1 is an allegation that the total effective sentence imposed by her Honour offended the first limb. This requires the court to examine the seriousness of the appellant's offending, the appellant's mitigating factors, and comparative cases: Pollock v The State of Western Australia [2009] WASCA 121 [27].
So far as the seriousness of the offending is concerned, the facts speak for themselves. All sexual assaults are serious, but these were, as her Honour said, 'particularly serious'. This is because:
(a)the offences committed on each victim involved a very significant degree of violence;
(b)with respect to the offences committed upon TTN, the appellant threatened to kill her;
(c)in each attack, the appellant instilled a high level of fear in the victim;
(d)each attack involved the commission of a number of sexual offences;
(e)the offences were committed upon two separate victims on two separate occasions separated by approximately two and a half months;
(f)the offences were committed without any regard to the obvious distress of each victim. They could properly be said to be callous.
We have already set out the mitigating factors identified by her Honour. For reasons which we will set out shortly, she was correct in not giving any mitigating weight to the appellant's age or the circumstances of his family. Nevertheless, there were mitigating factors, and her Honour expressly took them into account.
There is no tariff for sexual offences, given the variety of circumstances in which they may occur: The State of Western Australia v Akizuki [2008] WASCA 267; (2008) 192 A Crim R 373 [3]. In that case, Steytler P said, after examining a significant number of cases of sexual offending:
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].
In Warburton v The State of Western Australia [2009] WASCA 113; (2009) 196 A Crim R 361, Wheeler JA (with whom Pullin & Miller JJA agreed) referred to observations that she had made in R v Quartermaine [2000] WASCA 341 and R v Cleak [2004] WASCA 72. In those cases, her Honour noted that while there is no tariff for a single offence of sexual penetration without consent, the general range of sentences commonly imposed for a single act of penetration of the vagina with the penis, where the victim is over the age of 16 years, is of the order of about 4 ‑ 6 years (6 ‑ 9 years pre‑transitional).
We have examined the cases referred to by Steytler P in The State of Western Australia v Akizuki, between [4] ‑ [67]. While no case is precisely comparable, we do not regard the total effective sentence imposed by her Honour in this case as outside the range imposed for serious, violent offending of this type.
In our opinion, the total effective sentence of 8 years' imprisonment properly reflected the appellant's overall criminality. We will not repeat what we have already said about the seriousness of the appellant's behaviour. Considerations of punishment, and general and specific deterrence had to be emphasised, with the consequence that matters personal to the appellant received less weight. Her Honour did not totally accumulate the sentences which she imposed upon the appellant. She gave due regard to the application of the first limb of the totality principle. Ground 1 has not been made out.
Ground 2 - the appellant's personal circumstances
Her Honour referred to each of the personal circumstances set out in the particulars to ground 2.
This ground is expressed in terms that her Honour failed to give sufficient weight to those particulars. In Vagh v The State of Western Australia [2007] WASCA 17, McLure JA said:
A failure to give adequate weight to a relevant sentencing consideration only gives rise to an (express) appealable error if it amounts to a failure to exercise the discretion actually entrusted to the Court: Dinsdale v The Queen (2000) 202 CLR 321 at 330 approving the statements of Gibbs CJ in Mallet v Mallet (1984) 156 CLR 605 at 614 [76].
It could not be said in this case that her Honour failed to exercise the discretion entrusted to her. Ground 2 has not been made out.
Ground 3 - relative youth
Adults, at the age of 27 or 28 years, have reached the point in life where youth is no longer a mitigating factor. The appellant's offending was not as a result of immaturity resulting from his age. We have been unable to find any cases which suggest that youth, as a mitigating factor, applies to an adult aged 27 or 28 years of age. Her Honour was right not to give the appellant's age any mitigatory weight. Ground 3 has not been made out.
Ground 4 - hardship to family
The principles which must be applied when a court is considering whether to give mitigatory weight to the impact that a sentence of imprisonment will have upon an offender's family were set out by Burt CJ (with whom Kennedy & Franklyn JJ agreed) in Boyle v The Queen (1987) 34 A Crim R 202:
The general principle is said to be that a sentencing court should have no regard to the impact which a sentence of imprisonment will have upon the members of the prisoner's family. That principle has been emphasised in a number of reported cases …
But the English decisions make it clear that that is not an absolute rule and it will be departed from in exceptional circumstances, particularly, it seems, when imprisonment will result in children being left to fend for themselves best they can without parental supervision or support (204 ‑ 205).
Burt CJ was not there closing the category of circumstances which might be regarded as exceptional hardship. What he, and cases subsequent to it have emphasised, is that the hardship which must be caused to an offender's family by reason of the offender's imprisonment must be exceptional. What is exceptional depends upon the circumstances of each case. However, it must be borne in mind that hardship and stress upon an offender's family is an almost inevitable consequence of a term of imprisonment. The appellant must demonstrate a degree of hardship which is quite out of the ordinary before it can substantially mitigate the court's sentencing disposition: Hodder v The Queen (1995) 15 WAR 264, 287. Further, the more serious the offence, the less the court has the capacity to mitigate punishment, having regard to hardship to an offender's family: Hodder v The Queen (286).
We accept that the appellant's incarceration has led to serious hardship upon the offender's family. However, we do not regard the degree of hardship in this case as being exceptional. It is not uncommon for an offender's family to experience serious financial difficulty as a result of that offender's incarceration. Where an offender has been conducting a business, it will often be left to family members to deal with the fall out. The emotional stress being experienced by the appellant's family members is understandable but unexceptional. Finally, the appellant's offending was very serious. Accordingly, the room for a court to mitigate a punishment by reason of hardship upon the offender's family is very much reduced.
Notwithstanding the circumstances known to her Honour and the matters raised in the appellant's affidavit, the impact of the sentences upon the appellant's family is not sufficiently exceptional to justify a reduction in the sentences imposed by her Honour. Ground 4 has not been made out.
Conclusion
None of the grounds of appeal have been established. We would not grant an extension of time within which to appeal nor would we have given leave to appeal on any of the grounds submitted by the appellant. The appeal must be dismissed.
Orders
We make the following orders:
1.The application for an extension of time within which to appeal is refused.
2.The appeal is dismissed.
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