McNally v The State of Western Australia - [2019] WASCA 93

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT :   THE COURT OF APPEAL (WA)
CITATION:   MCNALLY -v- THE STATE OF WESTERN AUSTRALIA [2019] WASCA 93
CORAM:   BUSS P
BEECH JA

HEARD:   4 APRIL 2019
DELIVERED          :   2 JULY 2019
FILE NO/S:   CACR 199 of 2018
BETWEEN:   NATHAIN MICHAEL MCNALLY
Appellant

AND

THE STATE OF WESTERN AUSTRALIA
Respondent

ON APPEAL FROM:
Jurisdiction              :   DISTRICT COURT OF WESTERN AUSTRALIA
Coram:   BURROWS DCJ
File Number            :   IND 1934 of 2017

Catchwords:

Criminal law - Appeal against sentence - Appellant convicted after trial of two counts of sexual penetration without consent - Individual sentences of 6 years' imprisonment and 4 years' imprisonment - Total effective sentence of 6 years' imprisonment - Manifest excess - Totality

Legislation:

Criminal Code (WA), s 325
Sentencing Act 1995 (WA), pt 2 div 1

Result:

Leave to appeal refused
Appeal dismissed

Category: B

Representation:

Counsel:

Appellant	:	Mr T F Percy QC & Ms L M Willox
Respondent	:	No appearance

Solicitors:

Appellant	:	Timpano Legal
Respondent	:	Director of Public Prosecutions (WA)

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

Barbaro v The Queen [2014] HCA 2; (2014) 253 CLR 58
C v The State of Western Australia [2006] WASCA 261
Costa v The State of Western Australia [2019] WASCA 3
Giglia v The State of Western Australia [2010] WASCA 9
Kabambi v The State of Western Australia [2019] WASCA 44
KNY v The State of Western Australia [2019] WASCA 89
Lakay v The State of Western Australia [2019] WASCA 46
Lindsay v The State of Western Australia [2010] WASCA 142
Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665
Moore v The State of Western Australia [2019] WASCA 35
Munda v The State of Western Australia [2013] HCA 38; (2013) 249 CLR 600
NPA v The State of Western Australia [2018] WASCA 131
Roffey v The State of Western Australia [2007] WASCA 246
SBJ v The State of Western Australia [2019] WASCA 32
SJN v The State of Western Australia [2016] WASCA 215
Suleiman v The State of Western Australia [2017] WASCA 26
The State of Western Australia v Doyle [2017] WASCA 207
Thomas v The State of Western Australia [2019] WASCA 4

JUDGMENT OF THE COURT:

The appellant has applied for leave to appeal against sentence.
The appellant was charged on indictment with three counts of sex offending.
Count 1 alleged that on 22 May 2017 at a Perth suburb, the appellant sexually penetrated the complainant without her consent, by penetrating her anus with his penis, contrary to s 325 of the Criminal Code (WA) (the Code).
Count 2 alleged that on the same date and at the same place, the appellant attempted to sexually penetrate the complainant without her consent, by attempting to introduce his penis into her mouth, contrary to s 325 of the Code.
Count 3 alleged that on the same date and at the same place, the appellant sexually penetrated the complainant without her consent, by penetrating her vagina with his penis, contrary to s 325 of the Code.
The appellant pleaded not guilty to each of the counts.
On 31 May 2018, after a trial in the District Court before Burrows DCJ and a jury, the appellant was convicted of counts 1 and 3 and acquitted of count 2.
On 26 September 2018, the trial judge sentenced the appellant to 6 years' imprisonment for count 1 and 4 years' imprisonment for count 3. Her Honour ordered that the sentences be served concurrently and be backdated to 31 May 2018. The total effective sentence was therefore 6 years' imprisonment. A parole eligibility order was made.
The appellant relies on one ground of appeal. The ground, as explained by senior counsel for the appellant at the hearing, alleges that the total effective sentence of 6 years' imprisonment infringed the first limb of the totality principle.[1] Senior counsel told the court at the hearing that the appellant's sole complaint was that the total effective sentence infringed the first limb of the totality principle.[2] It scarcely needs to be said that the appellant will be unable to make out the ground of appeal (her Honour having ordered the individual sentences to be served concurrently) unless the individual sentence of 6 years' imprisonment for count 1 was manifestly excessive or otherwise erroneous. We will, in the circumstances and for completeness, consider whether there are reasonable prospects of contending successfully that the individual sentences were manifestly excessive, in addition to considering whether there are reasonable prospects of contending successfully that the total effective sentence infringed the first limb of the totality principle.
[1] Appeal ts 2 - 3.
[2] Appeal ts 2 ‑ 3.
In our opinion, it is not reasonably arguable that the individual sentences were manifestly excessive or that the total effective sentence infringed the first limb of the totality principle. Leave to appeal must be refused. The appeal must be dismissed.

The facts and circumstances of the offending

The facts and circumstances of the offending, as found by the trial judge in her sentencing remarks, were as follows.
During 2017, the appellant and the complainant communicated with each other on an internet dating site known as Plenty of Fish. The service facilitates 'dating and matchmaking' and permits users to message each other (ts 306).
It appears that the appellant and the complainant first communicated with each other in February or March 2017. They began sending each other text messages in March 2017. Prior to meeting the complainant in person, the appellant communicated extensively with her through text messages and telephone conversations. The text messages included messages of a sexual nature and photographs. In some of his messages, the appellant told the complainant of his desire to have anal sex with her. Each time the appellant raised the possibility of anal sex, the complainant replied that she did not wish to have anal sex. Her Honour found that the complainant 'made that clear' (ts 306).
The trial judge said that, before the events of 22 May 2017, the appellant 'knew that [the complainant] did not wish to have anal sex with [him] due to a medical condition that she [had] sustained' (ts 306). Her Honour added that the complainant had told the appellant that:
(a)anal sex was 'acutely painful for her'; and
(b)the complainant had 'a condition which caused issues with blood clotting if she sustained a bleeding injury in respect of which she was required to inject herself' (ts 306).
On 22 May 2017, the appellant, by mutual arrangement, went to the complainant's home in a Perth suburb. The appellant engaged in consensual penile/vaginal sex with the complainant. Next, the complainant performed consensual oral sex on him. The appellant then engaged again in consensual penile/vaginal sex with the complainant.
After the consensual sexual activities ended, the appellant told the complainant to 'turn over' (ts 306). The complainant assumed that the appellant wanted to have 'sex doggie style … [and] it was at that point that [the appellant] penetrated her anus with [his] penis without her consent' (ts 306). Her Honour made the following findings:
[The complainant] told you to stop repeatedly as you were hurting her. She was crying and screaming out in pain. You ignored her cries for you to stop and pushed her face down into the bed and held a pillow over her face. She struggled to get away from you. She had her head turned to one side to enable her to breathe.
You continued to penetrate [the complainant's] anus for several minutes until she managed to pull herself away from you. Despite her asking you to stop and crying you did not do so. You then rolled her over … and had non‑consensual vaginal sex with her. Again, she told you that she didn't want to have sex with you and again you ignored her. You continued to have sex with her until you ejaculated. You held her legs … . She struggled, but she was unable to escape (ts 307).
The complainant has a coagulation disorder known as Von Willebrand disease. People who suffer from this disease do not have all of the normal clotting factors in their blood. As a result, sufferers have a prolonged clotting time and bleed for longer periods than people without the disorder.
After the appellant committed the offences, the complainant sat on the edge of her bed and injected herself with a clotting agent. As a result of the anal penetration, she suffered lacerations to her anal area. She was bleeding and required the clotting agent to stem the bleeding. When the appellant saw the complainant inject herself, he called her 'a junkie'. The trial judge found that the appellant's remark must have been 'particularly humiliating and degrading for [the complainant]' (ts 307).
A medical practitioner examined the complainant after the offences had been committed. At the trial, a different medical practitioner gave evidence in relation to this examination, relying on contemporaneous notes made when the examination was conducted. The medical practitioner who gave evidence said that the complainant had two 0.75 cm tears to her perianal area. Those injuries would have been 'acutely painful' for the complainant (ts 307).
On 31 May 2017, the appellant participated in an electronically recorded interview with police. Initially, the appellant denied knowing the complainant. He also denied having gone to her home. The denials were maintained until the police showed the appellant CCTV photographs taken at a liquor store which the appellant and the complainant visited on the day in question. The appellant then told the police that he had engaged in consensual sex with the complainant.

The trial judge's sentencing remarks

After summarising the facts and circumstances of the offending, the trial judge referred in her sentencing remarks to the appellant's personal circumstances and antecedents.
The appellant was born on 2 May 1976. He was aged 41 at the time of the offending and was 42 when sentenced. When he was aged two, the appellant suffered a head injury. As a result, he has mild paralysis on his right side. The appellant told the author of a pre‑sentence report that he was bullied regularly at school, due to his physical disabilities, and had significant learning difficulties. However, as a child, he received positive support from his immediate and extended family.
The appellant left school after Year 8 and worked for several years as a plant operator in Port Hedland. He was then employed for 14 years in the Port Hedland area as a security guard. The appellant then moved to Perth and began his own business as a driving instructor. Her Honour noted that the appellant had completed a Certificate IV Driving Assessor course and had obtained certification to become a driving instructor. Although the driving instructor business was based in Rockingham, the appellant and his wife had travelled 'all over with corporate contracts, as well as providing driving lessons more locally' (ts 310). When he was operating the business, the appellant was responsible for the bookkeeping. Her Honour concluded that 'despite [the appellant's] disabilities [he had] managed to obtain gainful employment throughout [his] life and [had] succeeded in operating a successful driving instructor's business' (ts 310).
The appellant has a 21‑year‑old daughter from a two‑year relationship which began when he was aged about 18. He has not seen his daughter since she was aged two.
The appellant was married to another woman for 14 years. He has a 16‑year‑old daughter and a 19‑year‑old son from this marriage, but has only sporadic contact with them.
When he was sentenced, the appellant was in a relationship which had subsisted for nine months. This partner is supportive of him. She visits him regularly in prison.
The information before her Honour included a pre‑sentence report dated 25 July 2018 and a report dated 15 September 2018 from Dr Mandy Vidovich, a clinical neuropsychologist.
Dr Vidovich's report states:
(a)On 13 August 2018 (that is, after the appellant was convicted), Dr Vidovich interviewed and assessed the appellant in prison.
(b)The appellant did not identify 'any concerns regarding his cognition' and 'denied any problems with concentration or memory'. The appellant noted that 'whilst initially it had taken him a little while to find his way around the prison, he was fine with this now'.
(c)The appellant told Dr Vidovich that he had suffered from migraines for some time. There were, however, no other medical issues of significance and he was not taking any medication. The appellant 'worried regarding potentially being struck to the head whilst in prison'.
(d)The appellant's sensory functions were intact.
(e)There was no indication that the appellant had a mood disorder. His insight 'impressed as shallow'.
(f)The appellant had disclosed 'long‑standing academic difficulties', but said that he had 'maintained employment over the years, working in security, and then developing a business as a driving instructor'. The appellant said he had 'no concerns regarding his cognition, mood or behaviour'. The appellant 'maintained his stance of innocence in relation to the current charges and, thus, it was not possible to explore with him any potential contributing, or influential, behavioural factors or antecedents'.
(g)Dr Vidovich was of the opinion, based on tests she had administered, that the appellant was of 'borderline intelligence'. He demonstrated 'difficulty in monitoring and regulating his output and attentional processes'. He experienced difficulty 'manipulating information in mind, demonstrated mildly slowed thought processes, and was inefficient in his capacity to learn new material'. His expressive language skills were 'weak, though basic perceptual, visuo‑spatial and constructional abilities were reasonable'. The executive dysfunction was evident 'both cognitively and behaviourally' and his insight was 'questionable'.
(h)Dr Vidovich concluded:
Whilst not discounting the significance of [the appellant's] low‑level of cognitive functioning, given his presentation during the time spent in his company, and in particular, his persistent denial of any wrong doing, it is difficult to provide the Court with clear direction regarding possible antecedent, or future risk, factors. He certainly demonstrates attentional and executive dysfunction that would impact on his capacity to regulate, monitor, and inhibit aspects of his behaviour. However, the history would also suggest that he has been functional within the community, despite his disabilities, and that personality, situational stressors, and his interpretation of events, are also just as highly influential in his behaviours and interactions, as his cognition.
The trial judge referred in some detail to Dr Vidovich's report. Her Honour mentioned Dr Vidovich's view that it was difficult to provide the court with clear direction regarding the appellant's possible risk factors in the future because of his persistent denial of any wrongdoing. Her Honour added that Dr Vidovich was unable to provide 'any assessment in relation to what sort of risk [the appellant posed] in the future' (ts 310). Her Honour then made these findings:
There is nothing before me that suggests your condition was in any way causative to your offending behaviour. Nevertheless, I do take into account … your borderline intelligence and am of the view that … whilst … I must impose a penalty that will deter you from committing an offence such as this in the future, general deterrence does not play such a role in the sentencing of you before me (ts 311).
Her Honour referred to a number of written references as to the appellant's character. The referees spoke well of him. Her Honour also referred to the appellant's 'sound work history' and that he had always been 'an active member of the community' (ts 311).
The trial judge noted that the appellant had a 'minor criminal record' which her Honour considered was 'essentially neutral' for the purpose of sentencing the appellant for the offences in question (ts 311). Her Honour added that, although the existence of the criminal record was not an aggravating factor, the appellant was not entitled to 'the mitigation of someone who comes before the court for the first time and has no record at all' (ts 311 ‑ 312). The appellant had not committed any prior offences of a sexual nature.
Her Honour found that, despite having received text messages from the complainant explicitly stating that she did not want to have anal sex because it would be very painful for her, the appellant forced himself upon her, having anal intercourse and causing her to sustain bleeding injuries to her anus (ts 313).
The trial judge viewed count 1 as a particularly serious offence, as it involved the appellant holding the complainant down when she was clearly upset, resisting and asking him to desist (ts 313).
A victim impact statement from the complainant recounted the devastating effect of the offending upon her. Following the offences, she was admitted to an intensive care unit. Her throat and airways had become swollen as a result of her emotional response to what had occurred. She suffered bleeding and pain from the injuries inflicted by the appellant. Those injuries were exacerbated by her coagulation disorder. The complainant has had difficulty sleeping and has withdrawn from her friends and other people. She has had nightmares about the incident and continues to experience psychological trauma. The offending occurred in her home and, as a consequence, she has moved to other residential premises.
Her Honour found that the complainant was 'particularly vulnerable because of … prior anal surgery which had made [anal] intercourse exceptionally painful for her [and because of] her Von Willebrand disease which caused her to excessively bleed when sustaining injuries' (ts 313). Her Honour also found that the appellant knew that the complainant was in 'a vulnerable position … regarding [the] breakdown in her relationship with her partner and that she had children who had special needs which you were well aware of, having met her children' (ts 313).
The trial judge recorded that the appellant continued to deny his offending; he did not have the mitigation that pleas of guilty would have brought; and he had not demonstrated any remorse or acceptance of responsibility for his offending. The appellant had engaged in 'an element of victim blaming' (ts 314).
Her Honour acknowledged that the appellant had cooperated with the trial process. At the time of sentencing, he had a stable and supportive environment.

Counsel for the appellant's submissions

The appellant's written submissions asserted that the total effective sentence of 6 years' imprisonment imposed upon the appellant was 'unreasonably higher' than the sentences imposed in Thomas v The State of Western Australia;[3] SJN v The State of Western Australia;[4] and Lindsay v The State of Western Australia.[5] It was contended that the appellant's 'mental condition' reduced his moral culpability and that this condition 'should have been reflected to a greater extent in mitigation, than that which was afforded to him' by the trial judge. The appellant submitted that the total effective sentence was not commensurate with the criminality of his overall offending.
[3] Thomas v The State of Western Australia [2019] WASCA 4.
[4] SJN v The State of Western Australia [2016] WASCA 215.
[5] Lindsay v The State of Western Australia [2010] WASCA 142.
In his oral submissions, senior counsel for the appellant argued that the total effective sentence was 'simply too high' (appeal ts 3). Counsel submitted that, although her Honour concluded that the appellant's executive dysfunction was not in any way causative of the offending, her Honour also said, in effect, that the appellant 'was not a good vehicle for general deterrence' (appeal ts 3). Counsel argued that, although personal deterrence was 'very appropriate' as a sentencing consideration and general deterrence '[was] not appropriate in the same way', the reduced importance of general deterrence was not reflected in 'the resultant sentence' (appeal ts 7). That was the point the appellant wanted 'to agitate' (appeal ts 7). It was submitted that the appellant's executive dysfunction decreased his moral culpability. There should have been 'some concession' for that factor, 'even though it had no causative effect on the offending' (appeal ts 8 ‑ 9).

The merits of the appellant's case

The appellant does not challenge any of the trial judge's findings of fact or allege that her Honour made any other express error.
A ground of appeal which alleges that a sentence is manifestly excessive asserts the existence of implied error. It is necessary, in determining whether a sentence is manifestly excessive, to examine it from the perspective of the maximum sentence prescribed by law for the relevant offence, the standards of sentencing customarily observed with respect to that offence, the place which the criminal conduct occupies on the scale of seriousness of offences of the kind in question, and the personal circumstances of the offender.
The first limb of the totality principle requires that the total effective sentence imposed on an offender who has committed multiple offences must bear 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 a term of imprisonment), viewed in their entirety, and after having regard to all relevant circumstances, including those referable to the offender personally (and including, for example, the desirability of accommodating any wish to rehabilitate), and the total effective sentences imposed in comparable cases.
The practical effect of the totality principle is ordinarily to arrive at a total effective sentence which is less than that which would have been arrived at merely by adding up all of the terms appropriate for the individual offences. See Roffey v The State of Western Australia.[6] Also, the severity or leniency of an individual sentence (which is not manifestly excessive or manifestly inadequate) is relevant in evaluating whether the total effective sentence infringes the first limb of the totality principle. See Giglia v The State of Western Australia.[7]
[6] Roffey v The State of Western Australia [2007] WASCA 246 [26] (McLure JA; Steytler P & Miller JA agreeing).
[7] Giglia v The State of Western Australia [2010] WASCA 9 [40] (Owen JA; McLure P & Pullin JA agreeing).
The guidance afforded by comparable cases is flexible rather than rigid. The mere fact a sentence is within the range of other sentences imposed for similar offending does not necessarily establish that there was an appropriate exercise of the sentencing discretion in the particular case. Similarly, the mere fact a sentence is outside the range does not necessarily establish that the exercise of the sentencing discretion in the particular case miscarried.
A sentencing range for comparable offences is merely one of the factors to be taken into account in deciding whether an individual sentence is manifestly excessive or a total effective sentence infringes the first limb of the totality principle. A range of sentences customarily imposed is of significance for the purpose of ensuring broad consistency in the sentencing of offenders in broadly comparable cases. However, a sentencing range for comparable cases does not fix the range of a sound exercise of the sentencing discretion in a particular case.
When this court dismisses an appeal against sentence, and when it allows an appeal against sentence and resentences the offender, this court's decision on the sentencing outcome does not, of itself, fix the upper or lower limit of the range.
If, in a particular case where manifest excess is alleged, there are no directly comparable cases, this court is not precluded from deciding that an individual sentence is or is not manifestly excessive. It merely has the consequence that this court has no directly comparable cases to provide a yardstick against which to assess the sentence. However, previous sentencing ranges are only one pointer to the adequacy of a sentence. See Munda v The State of Western Australia;[8] The State of Western Australia v Doyle.[9]
[8] Munda v The State of Western Australia [2013] HCA 38; (2013) 249 CLR 600 [38] - [39] (French CJ, Hayne, Crennan, Kiefel, Gageler & Keane JJ).
[9] The State of Western Australia v Doyle [2017] WASCA 207 [36] (Buss P, Mazza JA & Hall J).
Similarly, if, in a particular case where an infringement of the first limb of the totality principle is alleged, there are no directly comparable cases, this court is not precluded from deciding that a total effective sentence does or does not infringe the first limb of the totality principle. It merely has the consequence that this court has no directly comparable cases to provide a yardstick against which to judge the adequacy of the total effective sentence imposed at first instance. See Moore v The State of Western Australia.[10]
[10] Moore v The State of Western Australia [2019] WASCA 35 [51] (Buss P & Mazza JA).
Except where a mandatory sentence is prescribed, a sentencing judge exercises a discretionary judgment which is subject to applicable statutory provisions and judge‑made law. See Barbaro v The Queen.[11]
[11] Barbaro v The Queen [2014] HCA 2; (2014) 253 CLR 58 [25] (French CJ, Hayne, Kiefel & Bell JJ).
In the present case, the sentencing judge was obliged to sentence the appellant in accordance with the sentencing principles set out in pt 2 div 1 of the Sentencing Act 1995 (WA).
The discretion conferred on sentencing judges is, of course, of fundamental importance and this court may not substitute its opinion as to sentencing for that of the sentencing judge merely because it would have exercised the discretion in a different manner. See Lowndes v The Queen.[12]
[12] Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665 [15] (Gleeson CJ, Gaudron, McHugh, Gummow, Kirby, Hayne & Callinan JJ).
The maximum penalty for sexually penetrating another person without the consent of that person, contrary to s 325 of the Code, is 14 years' imprisonment.
The general sentencing standards for offences contrary to s 325 of the Code are well established. There is, however, no tariff for those offences because of the great variation that is possible in the circumstances of the offending and the offenders. The sentence to be imposed in a particular case depends upon its individual facts and circumstances, having regard to the maximum penalty and all relevant sentencing factors. In NPA v The State of Western Australia,[13] it was observed:
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)
See also Kabambi v The State of Western Australia[14] and Lakay v The State of Western Australia.[15]
[13] NPA v The State of Western Australia [2018] WASCA 131 [51] (Buss P, Mitchell & Beech JJA).
[14] Kabambi v The State of Western Australia [2019] WASCA 44 [23] (Buss P, Mitchell & Pritchard JJA).
[15] Lakay v The State of Western Australia [2019] WASCA 46 [38] (Buss P, Mitchell & Pritchard JJA).
There is no 'hierarchy' of sexual penetration. See C v The State of Western Australia.[16] The observations in NPA in relation to a single count of penile penetration of the vagina where there is a plea of not guilty apply generally in relation to a single count of penile penetration of the anus where there is a plea of not guilty.
[16] C v The State of Western Australia [2006] WASCA 261 [35] (Wheeler JA).
In the present case, the very serious character of the appellant's offending, and the nature and extent of the complainant's vulnerability, are apparent from our summary of the facts and circumstances of the offending and the trial judge's sentencing remarks.
As to count 1, the appellant did not simply sexually penetrate the complainant's anus with his penis without consent. The appellant engaged in anal sex with the complainant despite the complainant having expressly informed the appellant previously that she did not wish to have anal sex because of the medical condition from which she suffered. The complainant had also told the appellant that anal sex was acutely painful for her. The appellant applied physical force to the complainant to enable him to have anal sex with her. He continued to penetrate her anus for several minutes. The appellant ignored the complainant's distress and her requests for him to stop. As a result of the anal penetration the complainant suffered lacerations to her anal area. It was necessary for her to inject a clotting agent to stem the bleeding. All of those features highlight the egregiousness of the offending on count 1.
The complainant suffered serious emotional trauma as a result of the offending, in addition to her physical injuries. The trauma has had a significant continuing impact upon her.
Dr Vidovich was of the opinion that the appellant was of 'borderline intelligence' and that he had 'difficulty in monitoring and regulating his output and attentional processes'. The appellant's executive dysfunction was evident 'both cognitively and behaviourally'. His insight was 'shallow' or 'questionable'.
The principles concerning the relevance of an offender's mental illness or psychological difficulties (falling short of insanity) to the sentencing process are well established. In Suleiman v The State of Western Australia,[17] they were summarised as follows:
The effect of mental illness or psychological difficulties (falling short of insanity) on the moral blameworthiness or culpability of an offender is variable. It depends upon the nature, effect and severity of the condition and its symptoms. See R vVerdins [2007] VSCA 102; (2007) 16 VR 269 [25] (Maxwell P, Buchanan & Vincent JJA); Wheeler [No 2] [9] (McLure P, Newnes JA agreeing). An offender who seeks to rely on mental illness or psychological difficulties as a factor which reduces his or her moral blameworthiness or culpability must prove on the balance of probabilities that the condition impaired his or her mental functioning to such an extent as to reduce the blameworthiness or culpability of the offending behaviour. See Wheeler [No 2] [10]; Smith [72] (Buss JA, McLure P & Mazza J agreeing); Phillips v The State of Western Australia [2011] WASCA 69 [48] (Buss JA, McLure P agreeing).
In R v Henry [1999] NSWCCA 111; (1999) 46 NSWLR 346, Wood CJ at CL explained the rationale for the sentencing principle that if an offender suffers from a mental disorder or abnormality (that has not been self-induced), general deterrence should ordinarily be given relatively less weight:
'The reason for this approach lies in the circumstance that the community will readily understand that the offender who suffers from a mental disorder or abnormality is less in control of his or her cognitive facilities or emotional restraints, and in some instances lacks the ability to make reasoned or ordered judgments. Almost invariably there is a limited appreciation of the wrongfulness of the act, or of its moral culpability, which although falling short of avoiding criminal responsibility does justify special consideration upon sentencing. Moreover, such a condition is inherent and its presence does not depend upon any element of choice [254].'
See also R vWright (1997) 93 A Crim R 48, 50 ‑ 51 (Hunt CJ at CL, Gleeson CJ agreeing generally & Hidden J agreeing); Minehan v The Queen [2010] NSWCCA 140; (2010) 201 A Crim R 243 [62] (RA Hulme J, Macfarlan JA & Johnson J agreeing).
In Leach v The Queen [2008] NSWCCA 73; (2008) 183 A Crim R 1, Basten JA pointed out that although mental impairment will often tend to diminish moral blameworthiness or culpability and, in consequence, tend to diminish the otherwise appropriate sentence, it may in some circumstances have other effects [12]. His Honour referred to the observation of Gleeson CJ in R v Engert (1995) 84 A Crim R 67 that 'the existence of a causal connection between the mental disorder and the offence might reduce the importance of general deterrence, and increase the importance of particular deterrence or the need to protect the public' (71). See also Wheeler [No 2], where McLure P said, citing Engert (71), that a sentencing consideration may be relevant in more than one respect and not affect the outcome because it weighs both positively and negatively in the balance [7].
Ultimately, however, in the application of these principles, 'it is a matter of balancing the relevant factors in a manner no different from that which is involved in every sentencing exercise': R v Letteri (Unreported, NSWCCA, 18 March 1993) 14, adopted and emphasised by Gleeson CJ in Engert (71).
See also SBJ v The State of Western Australia.[18]
[17] Suleiman v The State of Western Australia [2017] WASCA 26 [60] - [63] (Buss P; Mazza & Mitchell JJA agreeing).
[18] SBJ v The State of Western Australia [2019] WASCA 32 [66] ‑ [67] (Mazza, Beech & Pritchard JJA).
In the present case, the appellant did not suffer from a mental illness, but he was of borderline intelligence and his executive dysfunction operated both cognitively and behaviourally. It was not suggested (and it could not reasonably have been suggested) that the appellant did not know that his offending conduct was morally wrong. His defence at the trial was that the sexual acts in question were consensual. He was aware of the distinction between consensual and non‑consensual sexual activity. The nature and extent of the appellant's borderline intelligence and executive dysfunction and their consequences were relevant to the sentencing process in more than one respect and weighed both positively and negatively in the balance.
The trial judge found, correctly, that she must impose sentences that would deter the appellant from committing offences of the kind in question in the future. Personal deterrence and the protection of vulnerable women were of particular importance having regard to the very serious character of the appellant's offending, his continuing stance of denial (which included an element of victim blaming) and his failure to evince any remorse or acceptance of responsibility for his criminal conduct. The importance of personal deterrence and the protection of vulnerable women as sentencing factors was not diminished even if the appellant's continuing stance of denial (including the element of victim blaming) and his failure to evince any remorse or acceptance of responsibility was attributable, in part, to his borderline intelligence and executive dysfunction. Her Honour did not make a finding to that effect and, as we have mentioned, the appellant does not allege that her Honour made any express error.
Her Honour also found, correctly, that the appellant's borderline intelligence and executive dysfunction were not causative of his offending, but were nevertheless mitigating. It reduced to some extent his moral culpability and, also, reduced to some extent the importance of general deterrence as a sentencing factor. Her Honour's statement in her sentencing remarks that 'general deterrence does not play such a role in the sentencing of you before me' indicated that general deterrence was not, in the circumstances, as significant as personal deterrence. Her Honour did not decide (and, in the circumstances, it would have been an error for her to have decided) that general deterrence was irrelevant or insignificant.
The appellant was aged 41 when he committed the offences. He was 42 at the time of sentencing. Plainly, the appellant did not have the mitigation of youth or inexperience.
Further, the appellant did not have the mitigation that pleas of guilty would have brought.
We have examined a number of appeals against sentence decided by this court which have involved offending contrary to s 325 of the Code. Those cases include those referred to by senior counsel for the appellant, namely Thomas, SJN and Lindsay, and, also, Costa v The State of Western Australia[19] and KNY v The State of Western Australia.[20]
[19] Costa v The State of Western Australia [2019] WASCA 3.
[20] KNY v The State of Western Australia [2019] WASCA 89.
It is unnecessary to reproduce the facts and circumstances of each of those cases or the sentencing outcomes. It is sufficient to note that there are some comparable features between some of them and the present case and there are also some distinguishing features.
We are satisfied that the sentence of 6 years' imprisonment imposed on the appellant for count 1 and the sentence of 4 years' imprisonment imposed on him for count 3 were within the general range of sentences that have customarily been imposed for offences, contrary to s 325 of the Code, committed in circumstances reasonably comparable to the facts and circumstances of the appellant's offending and his personal circumstances and antecedents.
In our opinion, it is not reasonably arguable that the sentence of 6 years' imprisonment for count 1 or the sentence of 4 years' imprisonment for count 3 was manifestly excessive. In particular, when each of those sentences is viewed from the perspective of the maximum penalty (14 years' imprisonment), and after taking into account all relevant facts and circumstances and all relevant sentencing factors, including:
(a)the objective facts and circumstances of each offence;
(b)the very serious character of each offence;
(c)the vulnerability of the complainant and the impact of the offending upon her;
(d)the serious or aggravating factors, referred to by her Honour, which are relevant to each offence;
(e)the relevant general sentencing pattern;
(f)the mitigating factors mentioned by her Honour, including the appellant's borderline intelligence and executive dysfunction; and
(g)the appellant's personal circumstances and antecedents,
we are satisfied that it is not reasonably arguable that the sentence for count 1 or the sentence for count 3 was unreasonable or plainly unjust.
In our opinion, after taking into account the maximum penalty for the offences; the circumstances and impact of the offending viewed as a whole; the total effective sentences imposed in previous cases with at least some features comparable to the appellant's overall offending; the place which the appellant's overall criminal conduct occupies on the scale of seriousness of offences of this kind; the appellant's personal circumstances and antecedents; the aggravating and mitigating factors referred to by the trial judge; and all relevant sentencing principles, it is not reasonably arguable that the total effective sentence of 6 years' imprisonment was unreasonable or plainly unjust.
The total effective sentence bears a proper relationship to the overall criminality involved in both of the offences, viewed in their entirety, having regard to all relevant facts and circumstances (including those personal to the appellant) and all relevant sentencing principles. It is not reasonably arguable that error should be inferred from the sentencing outcome.
The ground of appeal is without merit.

Conclusion

The ground of appeal does not have a reasonable prospect of success. Leave to appeal must be refused and the appeal must be dismissed.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
FN
Research Associate to the Honourable Justice Buss
2 JULY 2019