McAlear v The State of Western Australia
[2008] WASCA 39
•28 FEBRUARY 2008
McALEAR -v- THE STATE OF WESTERN AUSTRALIA [2008] WASCA 39
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2008] WASCA 39 | |
| THE COURT OF APPEAL (WA) | |||
| Case No: | CACR:76/2007 | 19 FEBRUARY 2008 | |
| Coram: | WHEELER JA BUSS JA MILLER JA | 27/02/08 | |
| 12 | Judgment Part: | 1 of 1 | |
| Result: | Appeal allowed Sentence quashed Aggregate sentence of 6 years 6 months substituted | ||
| B | |||
| PDF Version |
| Parties: | DARRYL McALEAR THE STATE OF WESTERN AUSTRALIA |
Catchwords: | Criminal law Sentencing Sexual offences Five counts Trial judge accumulating all but one of the counts Further sentence on s 32 notice Whether totality principle properly applied Whether aggregate sentence manifestly excessive |
Legislation: | Criminal Code, s 202(1), s 324, s 326, s 333, s 338A, s 552(2)(b) Sentencing Act 1995 (WA), s 32 Sentencing Legislation Amendment and Repeal Act 2003 (WA) |
Case References: | Jarvis v The Queen (1993) 20 WAR 201 Mill v The Queen (1988) 166 CLR 59 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : McALEAR -v- THE STATE OF WESTERN AUSTRALIA [2008] WASCA 39 CORAM : WHEELER JA
- BUSS JA
MILLER JA
- Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram : SWEENEY DCJ
File No : IND 1185 of 2006
Catchwords:
Criminal law - Sentencing - Sexual offences - Five counts - Trial judge accumulating all but one of the counts - Further sentence on s 32 notice - Whether totality principle properly applied - Whether aggregate sentence manifestly excessive
(Page 2)
Legislation:
Criminal Code, s 202(1), s 324, s 326, s 333, s 338A, s 552(2)(b)
Sentencing Act 1995 (WA), s 32
Sentencing Legislation Amendment and Repeal Act 2003 (WA)
Result:
Appeal allowed
Sentence quashed
Aggregate sentence of 6 years 6 months substituted
Category: B
Representation:
Counsel:
Appellant : Mr S B Watters
Respondent : Mr S E Stone
Solicitors:
Appellant : Thames Legal
Respondent : Director of Public Prosecutions (WA)
Case(s) referred to in judgment(s):
Jarvis v The Queen (1993) 20 WAR 201
Mill v The Queen (1988) 166 CLR 59
(Page 3)
1 WHEELER JA: I agree with Miller JA.
2 BUSS JA: I agree with Miller JA.
3 MILLER JA: The appellant pleaded guilty in the District Court at Perth to an indictment which contained five counts, three of which were sexual offences and two of which were offences associated with sexual offences. He also pleaded guilty to seven counts of committing an indecent act in public. These were the subject of a notice under s 32 of the Sentencing Act1995 (WA).
4 On 1 June 2007, the appellant was sentenced to an aggregate term of 8 years 9 months' imprisonment. An order was made for eligibility for parole.
5 The appellant appeals against the aggregate sentence which was imposed. Leave to appeal was granted on 2 October 2007. There were initially two grounds, but the first ground was abandoned at the hearing of the appeal. The remaining ground relates only to the sentences the subject of the indictment. It is in the following terms:
2. The learned sentencing Judge erred in imposing a sentence that was manifestly excessive and beyond the range of a sound discretionary judgment;
Particulars:
- (a) the learned sentencing Judge erred in ordering that all but one of the sentences be served cumulatively, thereby producing an excessive aggregate sentence;
(b) the sentence of 8 years imprisonment was manifestly excessive having regard to the nature of the offences, which, though serious, occurred over a short period of time, and involved attempted rather than actual penetration;
(c) the sentence does not sufficiently take into account the Appellant's early plea of guilty, his difficult and deprived upbringing, remorse, empathy and insight into his offending behaviour.
(Page 4)
- one. The ground actually contends that the aggregate sentence offended the totality principle; it should have been framed in that way.
The facts
7 The facts were related by the prosecutor on 9 May 2007. They reveal the commission by the appellant of a succession of serious offences against the complainant at night in an isolated location. The most serious of the offences was an attempted sexual penetration in circumstances in which bodily harm was done to the complainant.
8 The statement of facts revealed that the complainant was, at the relevant time, a 47-year-old woman of slight built. By contrast, the appellant, although the same age, was taller than the complainant and of heavy build. Further to accentuate the difference between the complainant and the appellant, the complainant was an invalid pensioner, who suffered a mild mental disability in the form of an obsessive-compulsive disorder. She lived in West Perth and, by reason of her disorder, she had developed a bizarre habit. It consisted of cleaning public bins in the local area. This activity she performed in the early hours of the morning.
9 The appellant lived in North Perth. He worked in Carr Street, West Perth and, in the course of walking to work, he regularly saw the complainant cleaning bins in the Carr Street area. He did not know her.
10 About one week prior to the commission of the offences the subject of the indictment, the appellant developed a sexual fantasy about the complainant. He began to monitor her movements. He hid in a park and watched her until she went home. He followed her and observed her address.
11 The appellant then formulated a plan to lure the complainant to a secluded area, where he could force her to have sex with him. On 16 February 2006, he wrote an unsigned letter to the complainant, instructing her to go to Bunning Lake, West Perth, at 3.00 am for the purpose of cleaning a bin. He promised her a cleaning contract if she could perform the task successfully. Within the letter, the appellant enclosed a key, which was purportedly for the purpose of unlocking a chain on the bin. In fact, there was no bin at the location.
(Page 5)
12 In preparation for what was about to occur, the appellant cut fabric strips from an old sheet. His intention was to use those strips to tie and restrain the complainant.
13 Between 2.30 am and 3.00 am on 17 February 2006, the complainant, in pursuance of the instructions she received in the appellant's letter, went to Bunning Lake. The appellant was already there. He was hiding in bushes. He had with him the ties that he had earlier made.
14 When the appellant saw the complainant walk by, he removed his clothing and waited in the bush. He observed the complainant walk around the area. She was unable to locate a bin and she was about to leave. As she walked along a pathway near the appellant's position, he confronted her. He was naked apart from a pair of underpants, which he had adapted into a form of mask. This he had over his face. He masturbated his semi-erect penis in front of the complainant. This constituted count 1 on the indictment, which was the offence of wilfully and without lawful excuse doing an obscene act in a place to which the public was permitted to have access: Criminal Code s 202(1). The complainant said to the appellant, 'Put that thing away', but the appellant threatened the complainant. He said, 'I won't rape you if you play with my dick'. This, the complainant refused to do. These facts constituted count 2 on the indictment; namely, the offence of making a threat with intent to compel a person to do an act she was lawfully entitled to abstain from doing: Criminal Code s 338A.
15 The appellant said to the complainant, 'Shut up bitch, don't move, stay still'. He grabbed her by her clothing. He then grabbed her breasts and squeezed them hard. He asked the complainant to perform oral sex on him, but she refused. He pushed the complainant to the ground and attempted to tie her hands. The complainant grabbed a stick and struck the appellant a number of times, but he overcame her, and again tried to tie her hands behind her back with the cotton strips that he had. The complainant struggled vigorously and the appellant was unable to do this. These facts constituted counts 3 and 4 on the indictment, which were respectively counts of unlawfully detaining the complainant and unlawfully and indecently assaulting the complainant by touching her breasts. Criminal Code s 333 and s 324 respectively.
16 During the course of the struggle, the appellant rubbed his penis against the complainant. This was outside her clothing. He forced her to the ground, face down, and crouched over her. He moved her into a
(Page 6)
- position that enabled him to get to her clothing. He attempted to undo the fly on her jumpsuit. Whilst this was happening, the complainant observed that the appellant's penis was becoming bigger and was moving closer to her. The complainant's face was pressed into the dirt, which caused a laceration to her lip and abrasions to her nose. She sustained bruising from the struggle.
17 The complainant heard a police siren in the distance. At the same time, the appellant released her. He told her to leave and threatened her.
18 The incident in which the appellant tried to get the complainant's clothing undone whilst he pinned her to the ground constituted count 5 on the indictment, which was an offence of attempting to sexually penetrate a person without her consent and in circumstances in which bodily harm was caused to her. This is the offence of attempted aggravated sexual penetration without consent: s 326 Criminal Code. The penalty for aggravated sexual penetration without consent is 20 years' imprisonment, but for an attempt it is 10 years: Criminal Code s 552(2)(b).
19 The complainant managed to escape and returned to her house. She telephoned police to report what had occurred. Later that day, she received a letter which the appellant delivered to her house. In that letter, the appellant invited the complainant to return to Bunning Lake at 8.00 pm that evening for sexual activity. He asked her to be his girlfriend. The letter enclosed four pornographic pictures, which the appellant had removed from magazines.
20 On 20 February 2006, the appellant was identified by fingerprint evidence from the envelopes in which he had sent letters. He was interviewed, but denied the offences. He was taken to his home, which was searched. There, police found the underpants which had been used as a mask and other items, including pornographic magazines. Upon a further interview, the appellant admitted the offences.
21 The facts relating to the s 32 notice revealed that, on seven different occasions between July 2003 and February 2006, the appellant hid himself in bush at the intersection of Queen Victoria Street and Canning Highway, Fremantle, and proceeded to masturbate in the presence of females who were either seated at a bus stop at that location or, in one instance, walking near that location.
(Page 7)
Sentencing judge's comments
22 The sentencing judge first summarised the facts of the case. She then turned to the circumstances of the appellant's plea of guilty. Her Honour noted that pleas of guilty were entered on 6 February 2007, which was one year after the appellant had been arrested and taken into custody on the indictable charges. The pleas were entered on the second appearance before the court and entered prior to trial. This, the sentencing judge regarded as 'obviously significant'.
23 The sentencing judge turned to matters personal to the appellant. She noted that he was 49 years of age and had a 'sad and rather dysfunctional childhood'. At the age of 10, he had been taken in by an uncle at Carnarvon. There was an incident in which a number of girls were alleged to have stripped the appellant of his clothing, but there was no sexual molestation. Nevertheless, it was concluded that the event had an impact on the appellant and had made him 'emotionally fragile'. The appellant had then moved to live with his mother and stepfather in Darwin. It was said that his stepfather had beaten him regularly, and he left home at the age of 16 years. He had no contact with his father or brothers and had an unhappy relationship with his mother. The sentencing judge described it as 'all a sad story of rejection and abandonment'.
24 The appellant had entered into an arranged marriage at the age of 26 years. He had three children. There was a history of forced sexual relations with his wife, and, perhaps more alarmingly, sexual feelings for his elder daughter. The marriage ultimately ended when there was an incident with the daughter. Thereafter, the appellant had no contact with his children for a period of six years.
25 The sentencing judge noted that the appellant had five prior convictions for wilful exposure. She regarded it as positive that the appellant had admitted to the seven charges which were the subject of the s 32 notice.
26 The sentencing judge then turned to the circumstances of the indictable offences. She regarded the attack upon the complainant as a very serious attack. She considered it to be premeditated, callous and an attack upon a vulnerable woman. Her Honour noted that the complainant must have been absolutely terrified. The incident had occurred in the middle of the night, in a situation where the complainant was alone and isolated.
(Page 8)
27 The complainant, in her victim impact statement, said that she was in fear of being raped or killed. The sentencing judge considered the appellant's letter to the complainant after the event to demonstrate the level of his dysfunction and the level of his 'emotional neediness'. She pointed out that for the appellant to think for one moment that the complainant would want anything to do with him after what had occurred, showed how 'sadly unrealistic' his attitudes were and also how dangerous he was.
28 Reference was made by the sentencing judge to the psychological report. Psychometric testing revealed an invalid profile. The appellant had a tendency to portray himself negatively, and there were a number of unusual responses that raised questions about the reliability of the results obtained. The psychologist considered that the appellant showed a victim stance, and an inordinate number of justifications, such that he demonstrated a severe lack of accountability for his actions. Nevertheless, the sentencing judge noted that the appellant had confessed to what had occurred and had voluntarily undergone counselling in the past.
29 One of the most important aspects of the psychological report was that the appellant was considered to be in the high risk category of sexual offenders. He had a four in 10 chance of sexual reoffending within a five-year period. He needed treatment that could predict the possibility of his reoffending.
30 The sentencing judge concluded that a sentence of immediate imprisonment had to be imposed. She took account of the appellant's plea of guilty and his confession to investigating police, noting that he had spared the complainant the need to testify. Her Honour thought it significant that the appellant had accepted responsibility for the offences.
31 The sentencing judge also noted that the appellant had empathy for the victim of the offences. She considered that the appellant's sad background had contributed to his development into an adult who 'desperately needs nurturing and positive attention but seeks it in most dysfunctional ways'.
32 The sentencing judge imposed a sentence which she considered would protect the community and act as a deterrent to the appellant in the future. She allowed a discount of 20% for the appellant's pleas of guilty and reduced all sentences by one-third, as required by the transitional
(Page 9)
- provisions (Sentencing Legislation Amendment and Repeal Act 2003 (WA). The sentences imposed were as follows:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
33 The sentences on counts 1 and 2 were ordered to be served concurrently, but those on counts 3, 4 and 5 cumulatively on each other and on count 1, making an aggregate sentence of 8 years' imprisonment. On the s 32 notice, the appellant was sentenced to 9 months on each offence, to be served concurrently with each other, but cumulatively on the 8-year sentence. This led to an ultimate sentence of 8 years 9 months.
Ground of appeal
34 Ground 2 contends that the aggregate sentence was manifestly excessive. As I have already said, the ground is badly formulated and should contend that the aggregate sentence offended the totality principle.
35 A number of particulars are given in relation to the ground. The first is that the sentencing judge erred in ordering that all but one of the sentences be served cumulatively. The second is that the sentence of 8 years' imprisonment was manifestly excessive, having regard to the nature of the offences 'which though serious occurred over a short period of time and involved attempted rather than actual penetration'. The third particular contends that the sentence did not sufficiently take into account the appellant's 'early plea of guilty, his difficult and deprived upbringing, remorse, empathy and insight into his offending behaviour'.
36 Counsel for the respondent argued that the offences had not occurred over a short period of time as contended in the second particular, but had occurred over quite an appreciable period of time. The actual period over which the offences occurred is not clear, but the offences consisted of a prolonged attack upon the complainant, and it is an understatement to
(Page 10)
- refer to it as occurring over 'a short period of time'. Counsel for the respondent also argued that there was no substance in the contention that because there was only an attempted penetration, the sentence was excessive. He submitted that only the coincidence of a police siren interrupted the attack. This is a submission that I accept. The appellant was clearly intending to have sexual intercourse with the complainant.
37 The third particular is erroneous, insofar as it refers to the appellant's early plea of guilty. The plea of guilty came one year after arrest. In any event, it was taken into account by the sentencing judge, as were each of the other factors referred to in the third particular.
Totality
38 The question before this court is whether the sentencing judge sufficiently took account of the totality principle in the sense that the aggregate sentence fairly and justly reflected the total criminality of the appellant's conduct.
39 The totality principle has been referred to in many case. The question is whether the aggregate sentence is just and appropriate: Mill v The Queen (1988) 166 CLR 59 [62] - [63]. When totalling separate sentences imposed for different counts on an indictment, the court is required to take a 'last look' at the total imprisonment imposed. The following observations by Ipp J in Jarvis v The Queen (1993) 20 WAR 201, 206 - 207 sufficiently illustrate the principle:
in taking a 'last look' at the total imprisonment imposed, the court will continue to apply the principle that the sentence should be proportionate to the degree of criminality involved. That principle is, after all, basic to the law of sentencing: Wicks v R (1989) 3 WAR 372 at 379-380. The crushing effect of a term of imprisonment is merely one of the mitigating factors that is to be taken into account when determining whether a particular term of imprisonment is proportionate to the criminality evinced.
While the subjective effect of a cumulative sentence upon a particular individual is plainly relevant, it cannot be regarded as of paramount importance. The difficulty expressed in Vaitos at 301 by O'Bryan J with the concept that a richly deserved sentence should be reduced because the offender may feel crushed by it aptly illustrates its limitations as a mitigatory force.
The overriding principle is accordingly that the aggregate sentence (even when punishment is being imposed for multiple offences) should fairly and justly reflect the total criminality of the offender's conduct: Veen v R(No 2) (1988) 164 CLR 465; Evangelista and Laporte v R; R v Glenister [1980] 2 NSWLR 597 at 612; Lade v Mamarika (1986) 83 FLR 312.
(Page 11)
40 In the present case, the sentencing judge thought it appropriate to accumulate all but one of the sentences imposed on the five counts on the indictment, and then to order the sentences imposed on the s 32 notice (which were themselves concurrent) to be served cumulatively. That brought about the effective sentence of 8 years 9 months' imprisonment.
41 Although the indictable offences committed by the appellant constituted a very serious attack upon the complainant, I am of the opinion that the sentencing judge erred in accumulating all but one of the sentences that were imposed. I consider that the sentences on counts 1 and 2 (1 year each) should have been served concurrently, and the sentences on counts 3 and 5 (2 years and 3 years respectively) should have been served cumulatively and cumulative upon the sentence imposed on count 1. The sentence imposed on count 4 (2 years' imprisonment) should, in my opinion, have been ordered to have been served concurrently.
42 In the result, it is my opinion that a proper measure of the criminality of the appellant's conduct would have been to have ordered accumulation of the sentences imposed on counts 1, 3 and 5, but otherwise for the sentences imposed to be served concurrently with the sentence imposed on count 5. The total aggregate sentence would then be 6 years' imprisonment.
43 The appellant did not contest the sentences imposed in relation to the charges the subject of the s 32 notice. Nor did the appellant contest the accumulation of the sentence imposed on the first of those charges upon the total aggregate sentence of 8 years which was imposed by the trial judge. What was in contention was the aggregate term of 8 years.
44 To achieve a result proportionate with the criminality of the appellant's conduct, I would reduce the 9-month sentence imposed on the first of the s 32 charges to of 6 months' imprisonment and order that it be served cumulatively upon the sentence of 6 years' imprisonment which I consider appropriate on the indictable offences. The sentences on each of the other charges the subject of the s 32 notice (9 months' imprisonment) should remain, but should be served concurrently with the sentence imposed upon the indictable offences.
45 This would bring about an effective sentence of 6 years 6 months' imprisonment in lieu of the sentence of 8 years 9 months imposed by the trial judge. Such a sentence would, in my opinion, be a more appropriate reflection of the total criminality of the appellant's conduct.
(Page 12)
46 It follows that I would allow the appeal on ground 2, and:
(1) set aside the trial judge's order for accumulation of count 4 on the indictment;
(2) order that it be served concurrently with the sentence imposed on count 5;
(3) set aside the sentence imposed on the first charge the subject of the s 32 notice; and
(4) substitute for it a sentence of 6 months' imprisonment, to be served cumulatively upon the sentence of 6 years imposed in relation to the indictable offences.
47 The other sentences imposed on the s 32 notice should be served concurrently with each other and with the sentences imposed on the indictable matters. The resultant aggregate sentence becomes one of 6 years 6 months' imprisonment. It should be backdated to 20 February 2006 and there should remain an order for eligibility for parole. The appellant will be eligible for parole after serving 4 years 6 months.
2
6
3