Kabambi v The State of Western Australia
[2019] WASCA 44
•6 MARCH 2019
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: KABAMBI -v- THE STATE OF WESTERN AUSTRALIA [2019] WASCA 44
CORAM: BUSS P
MITCHELL JA
PRITCHARD JA
HEARD: 19 FEBRUARY 2019
DELIVERED : 6 MARCH 2019
FILE NO/S: CACR 154 of 2018
BETWEEN: ALIKA ROBERT KABAMBI
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram: STEVENSON DCJ
File Number : IND 50 of 2017
Catchwords:
Criminal Law - Sentencing - Sexual penetration without consent - Where appellant sexually penetrated the sleeping complainant, who was not known to him, without her consent - Whether sentence of 4 years' immediate imprisonment imposed after late plea of guilty was manifestly excessive
Legislation:
Criminal Code (WA), s 325
Result:
Appeal dismissed
Category: D
Representation:
Counsel:
| Appellant | : | Mr S B Watters |
| Respondent | : | Mr R G Wilson |
Solicitors:
| Appellant | : | Chambers Legal |
| Respondent | : | Director of Public Prosecutions (WA) |
Case(s) referred to in decision(s):
Alalyani v The State of Western Australia [2018] WASCA 44
Eravelly v The State of Western Australia [2018] WASCA 139
FST v The State of Western Australia [2011] WASCA 220
Gaskell v The State of Western Australia [2018] WASCA 8
Giglia v The State of Western Australia [2010] WASCA 9
Munmurrie v The State of Western Australia [2013] WASCA 167
NPA v The State of Western Australia [2018] WASCA 131
Onekawa v The State of Western Australia [2012] WASCA 105
Plumley v The State of Western Australia [2018] WASCA 33
Salkilld v The State of Western Australia [2017] WASCA 168
Sartori v The State of Western Australia [2014] WASCA 98
The State of Western Australia v Vartolo [2015] WASCA 53
Trajkoski v The State of Western Australia [2018] WASCA 176
JUDGMENT OF THE COURT:
Summary
The appellant pleaded guilty to two counts of sexually penetrating the complainant without her consent, by engaging in cunnilingus (count 1) and by penetrating her vagina with his penis (count 2). Those were offences contrary to s 325 of the Criminal Code (WA). He was sentenced to 18 months' immediate imprisonment on count 1, to be served concurrently with a sentence of 4 years' immediate imprisonment on count 2. The total effective sentence was therefore 4 years' immediate imprisonment.
The appellant appeals against his sentence on the sole ground that the individual sentence of 4 years' immediate imprisonment for count 2 was manifestly excessive. The appellant does not challenge the imposition of a term of immediate imprisonment, but says that the term imposed was too long.
For the following reasons, there is no merit in that ground of appeal. Leave to appeal should be refused and the appeal dismissed.
Circumstances of offence
Both offences were committed against the same 32 year old female complainant on 14 May 2017. The complainant attended a party at the appellant's address in South Hedland. She did not know the appellant. At about 3.00 am in the morning, the complainant sought to leave the party but was unable to find a taxi. She went to sleep on her own in a spare bedroom of the appellant's house. She was wearing a dress and underwear.[1]
[1] Primary ts 20 - 21.
At about 5.00 am, the appellant entered the spare bedroom where the complainant was asleep. He moved her underwear to the side and engaged in cunnilingus. He then placed his penis in her vagina while she was still sleeping. The appellant did not use a condom. The complainant woke up, realised what was happening and initially froze. The appellant continued that penetration for about 5 - 10 minutes before the complainant yelled at him to stop several times. The appellant stopped, told the complainant that it was 'all right' and went to his own bedroom.[2]
[2] Primary ts 21.
The complainant remained in the bedroom crying. Other people at the house then spoke to her and took her to the Hedland Health Campus. Police were notified and attended the appellant's house at about 10.14 am.[3]
[3] Primary ts 21.
When the police interviewed the appellant, he denied any sexual contact with the complainant. A few days later, the appellant requested a second interview with police. At that interview, the appellant admitted to the charged sexual contact, but said that it was consensual.[4]
[4] Primary ts 21; AB 26.
Personal circumstances
The appellant was 28 years old at the time of sentencing. He was born in the Republic of Congo and lived in Rwanda. He finished primary school, but did not complete high school, in Rwanda.[5]
[5] Primary ts 22, 35.
The appellant had a traumatic childhood. At age 10, he was present during the civil war between the Tutsi and the Hutu in Rwanda, and witnessed the horrifying events of that conflict. The appellant was kidnapped and used as slave labour at the age of 13, before he was eventually liberated by government troops.[6]
[6] Primary ts 23 -24.
The appellant's father, who was running for government office, was poisoned at a political rally and subsequently died. As a result, the appellant had to assume the role of head of his family at age 15. He completed his education in Uganda.[7]
[7] Primary ts 22.
The appellant arrived in Australia in September 2001 on a residential visa. He lived in Victoria before moving to Western Australia in 2012. He had been employed in various positions in Australia. At the time of sentence, the appellant had worked for three years doing track and rail maintenance for local railway lines. He regularly sent money back to his family in Rwanda.[8]
[8] Primary ts 22.
The appellant was also a music teacher and worked as a DJ. He was a member of a local Christian group.[9]
[9] Primary ts 23.
On 6 January 2018, he became engaged to his partner and he had a traditional marriage ceremony in Sydney. He was due to be formally married under Australian law on 1 December 2018.[10]
[10] Primary ts 22.
The sentencing judge found that the appellant had no relevant criminal record and was otherwise of good character.[11]
[11] Primary ts 36.
The appellant was affected by methylamphetamine and alcohol at the time of the offences.[12]
[12] Primary ts 36.
Victim impact
The offences had significant physical, emotional and financial consequences for the complainant. Following the assault, she had to undergo tests for pregnancy and sexually transmitted diseases. She required hepatitis A injections. The complainant was afraid to leave her home. She has experienced flashbacks and suffers from post‑traumatic stress disorder and panic attacks, which she did not suffer before the assault. She has incurred the financial costs of counselling sessions, medication, time off work and having to move from Port Hedland for fear of encountering the appellant.[13]
[13] Primary ts 31.
Sentencing judge's approach
After referring to the circumstances of the offence, the sentencing judge noted that the appellant's indication he would plead guilty to the offence only occurred shortly before the dates listed for trial. Notwithstanding the late plea, the sentencing judge allowed a discount of 20% under s 9AA of the Sentencing Act 1995 (WA). His Honour indicated that the plea removed the need for the complainant and other witnesses to give evidence and 'there is a great deal of utility in the plea to those parties and a benefit to the State by reason of not having to incur the costs of a trial'.[14]
[14] Primary ts 35.
The sentencing judge referred to the appellant's personal circumstances, accepting that he had a strong work ethic and had made a positive contribution to the community in the manner described in references. His Honour also accepted that the appellant was genuinely remorseful and had insight into the seriousness of his offending and its impact on the complainant.[15]
[15] Primary ts 36.
The sentencing judge also noted the following additional mitigating factors:
(1)Imprisonment would involve greater hardship for the appellant as his family were still in Rwanda and unable to visit him.[16]
(2)The appellant's childhood experience of being detained in a camp meant that imprisonment carried a greater burden for him than for other offenders.[17]
(3)The cunnilingus offence would have been undetected but for the appellant's disclosure of that conduct (albeit while contending that it was consensual) in his second interview with police.[18]
[16] Primary ts 36.
[17] Primary ts 36.
[18] Primary ts 36 - 37.
The sentencing judge then imposed the sentences referred to above, expressly referring to the totality principle.
General principles
The general principles governing appeals contending that error should be inferred on the basis that an individual sentence is manifestly excessive or inadequate, or that a total effective sentence infringes the totality principle, are well established:[19]
(1)Sentencing is a discretionary exercise. An appellate court can intervene only if the appellant demonstrates either an express or implied material error. Express error involves acting on a wrong principle, for example by mistaking the law or facts or taking into account an irrelevant matter. Implied error arises where the end result is so unreasonable or unjust that the court must conclude that a substantial wrong has occurred. Thus, an appellate court cannot substitute its own opinion for that of the sentencing court merely because the appellate court would have exercised a sentencing discretion differently.
(2)In order to determine whether a sentence for an individual offence is manifestly excessive or inadequate, the offence should be viewed in light of the maximum sentence prescribed by law for the crime, the standards of sentencing customarily imposed with respect to it, the place that the criminal conduct occupies in the scale of seriousness of crimes of that type, and the offender's personal circumstances.
(3)The first limb of the totality principle requires that the total effective sentence imposed on an offender who has committed multiple offences bears a proper relationship to the overall criminality involved in all of the offences (including those, if any, in respect of which the offender is still serving or is yet to serve a term of imprisonment), viewed in their entirety, having regard to all relevant facts and circumstances including those referable to the offender personally (and including, for example, the desirability of accommodating any wish to rehabilitate), all relevant sentencing factors and the total effective sentences imposed in comparable cases.
(4)The range of sentences customarily imposed for a crime does not establish the range of a sound exercise of the sentencing discretion. Sentences customarily imposed in comparable cases provide a yardstick or reference point for ensuring broad consistency in sentencing, bearing in mind the scope for significant variations in relevant sentencing factors, and that there is no single correct sentence. What is important is the unifying principles which sentences imposed in comparable cases reveal and reflect.
(5)When this court dismisses an appeal against sentence and when it resentences on a successful appeal, its decision does not fix the upper or lower limit of the range.
(6)Where there is a challenge on totality grounds, the severity of a sentence imposed on an individual count generally falls to be assessed in light of the sentences imposed in respect of the other counts and its contribution to the total effective sentence. A heavy individual sentence (which is not manifestly excessive) may be softened by an order that it be served concurrently with sentences imposed in relation to the other counts. A relatively light sentence (which is not manifestly inadequate) may, as a practical matter, have increased severity if it is ordered to be served cumulatively. The real question is whether the total effective sentence is unreasonable or plainly unjust.
[19] The following statement of the general principles is taken from the judgments of the court in Salkilld v The State of Western Australia [2017] WASCA 168 [48] and in Trajkoski v The State of Western Australia [2018] WASCA 176 [30].
Disposition
The appellant was charged with two counts of sexually penetrating the complainant without her consent, contrary to s 325 of the CriminalCode. The maximum penalty for that offence is 14 years' imprisonment. The sentence imposed for count 2 was less than a third of the available maximum penalty.
The customary sentencing standards for offences against s 325 of the Criminal Code are well established. As the court recently noted, in relation to sentences in serious cases of sexual penetration of adult victims, in NPA v The State of Western Australia:[20]
In a case of a single count of penile penetration of the vagina where there is a plea of not guilty, a term of imprisonment of 5 to 6 years would not be unusual. It is important to emphasise that this does not mean that a sentence outside that range is thereby manifestly excessive (or inadequate). The circumstances of offending vary widely. The available maximum sentence must not be overlooked. Sentences well beyond that range may be justified by the circumstances of the case. (citations omitted)
[20] NPA v The State of Western Australia [2018] WASCA 131 [51], cited in Eravelly v The State of Western Australia [2018] WASCA 139 [95].
The appellant refers to three cases involving sexual penetration of a sleeping complainant where sentences of 3 years', and of 4 years 3 months', imprisonment were imposed or upheld on appeal.[21] However, it is necessary to bear in mind the point made in Alalyani that:[22]
[E]rror in the exercise of the sentencing discretion is not shown merely by pointing at one or two cases in which lesser sentences were imposed for comparable offences committed in comparable circumstances by comparable offenders.
[21] Alalyani v The State of Western Australia [2018] WASCA 44; The State of Western Australia v Vartolo [2015] WASCA 53; Munmurrie v The State of Western Australia [2013] WASCA 167; FST v The State of Western Australia [2011] WASCA 220. The appellant also referred to Onekawa v The State of Western Australia [2012] WASCA 105, which was an appeal against conviction rather than sentence, and Plumley v The State of Western Australia [2018] WASCA 33, which involved an attempted offence committed in very different circumstances to the present.
[22] Alalyani [39]; see also Sartori v The State of Western Australia [2014] WASCA 98 [30].
Having regard to all relevant features of the respective cases, the sentence imposed on the appellant is broadly consistent with the approach taken in previous cases.
The offending involved the appellant sexually penetrating the vagina of a sleeping woman, who was a stranger to him, with his penis. The appellant took advantage of the complainant's vulnerable position for his own sexual gratification. There was no basis on which it might be thought the appellant honestly believed that the complainant consented to sexual activity with him. The offence involved unprotected sexual penetration with the associated risk of pregnancy and transmission of disease. The offending had a predictably traumatic effect on the complainant.
The personal circumstances of the appellant are referred to above. Given the lateness of the plea of guilty, the 20% discount under s 9AA was extremely generous to the appellant. There were other significant mitigating factors, but these needed to be balanced against the importance of sentencing considerations such as general and specific deterrence.
In considering whether the sentence of 4 years' imprisonment for count 2 was manifestly excessive, it is also appropriate to take account of the place of that sentence in the total effective sentence. As was noted in Giglia v The State of Western Australia:[23]
A heavy individual sentence, for example, may be softened by an order that it be served concurrently with sentences imposed in relation to the other counts. On the other hand, a relatively light sentence may, as a practical matter, have increased severity if it is ordered to be served cumulatively.
[23] Giglia v The State of Western Australia [2010] WASCA 9 [40]. See also Gaskell v The State of Western Australia [2018] WASCA 8 [151].
In the present case, even if the individual sentence of 4 years' immediate imprisonment might be thought to be high, having regard to all relevant sentencing factors including the sentences imposed in other broadly comparable cases, the fact that the sentences on counts 1 and 2 are to be served concurrently with each other moderates the practical impact of the sentence for count 2. In the circumstances, it would have been open to the judge to provide for some degree of accumulation of the sentences for the two offences.
Having regard to all of the above matters, we are not persuaded that the sentence of 4 years' immediate imprisonment for count 2 on the indictment is unreasonable or plainly unjust.
Orders
For the above reasons, the following orders should be made in the appeal:
(1)Leave to appeal on the sole ground of 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.
ZMM
Research Associate/Orderly to the Honourable Justice Mitchell6 MARCH 2019
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