Moore v The State of Western Australia - [2023] WASCA 156

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT :   THE COURT OF APPEAL (WA)
CITATION:   MOORE -v- THE STATE OF WESTERN AUSTRALIA [2023] WASCA 156
CORAM:   QUINLAN CJ
HALL JA
MULLINS AJA

HEARD:   15 SEPTEMBER 2023
DELIVERED          :   6 NOVEMBER 2023
FILE NO/S:   CACR 126 of 2022
BETWEEN:   ADRIAN TREVOR MOORE
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent

FILE NO/S: CACR 127 of 2022
BETWEEN: ADRIAN TREVOR MOORE
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent

ON APPEAL FROM:
For File No:   CACR 126 of 2022
Jurisdiction              :   DISTRICT COURT OF WESTERN AUSTRALIA
Coram:   TROY DCJ
File Number            :   IND 2503 of 2020
For File No:   CACR 127 of 2022
Jurisdiction              :   DISTRICT COURT OF WESTERN AUSTRALIA
Coram:   TROY DCJ
File Number            :   IND 2503 of 2020

Catchwords:

Criminal law - Appeal against conviction - Where evidence included graphic and confronting visual images of alleged sexual offences - Where jury sought counselling to assist some of their number in dealing with images - Whether description of images in jury note was such as to engender a reasonable apprehension of bias on part of jury - Whether request for counselling itself indicated jury were incapable of performing their duty

Criminal law - Appeal against sentence - Where appellant convicted after trial of 87 sexual offences against 13 victims committed over 12‑year period - Where total effective sentence of 30 years' imprisonment imposed - Whether sentence infringed second limb of totality principle - Whether sentence crushing in that it deprived appellant of any reasonable expectation of a life after completion of sentence - Whether nature and circumstances of offending justified such a sentence

Legislation:

Criminal Code (WA), s 323, s 324(1), s 325(1), s 326(1), s 327(1), s 328(1)

Result:

CACR 126 of 2022
Leave to appeal granted
Application to adduce additional evidence refused
Appeal dismissed

CACR 127 of 2022
Leave to appeal on grounds 1 and 2 granted
Appeal dismissed

Category: A

Representation:

CACR 126 of 2022

Counsel:

Appellant	:	M T Trowell KC & S Casey
Respondent	:	R Owen & G N Beggs

Solicitors:

Appellant	:	Andrews Legal Pty Ltd
Respondent	:	Director of Public Prosecutions (WA)

CACR 127 of 2022

Counsel:

Appellant	:	M T Trowell KC & S Casey
Respondent	:	R Owen & G N Beggs

Solicitors:

Appellant	:	Andrews Legal Pty Ltd
Respondent	:	Director of Public Prosecutions (WA)

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

Gulyas v The State of Western Australia [2007] WASCA 263; (2007) 178 A Crim R 539
Haruna v The Queen [2013] WASCA 170; (2013) 278 FLR 194
I v The State of Western Australia [2006] WASCA 204
Johnston v The State of Western Australia [2012] WASCA 98
Kozarov v State of Victoria [2022] HCA 12; (2022) 273 CLR 115
Mehta v The State of Western Australia [2023] WASCA 24
Wark v The State of Western Australia [2023] WASCA 66
Webb v The Queen [1994] HCA 30; (1994) 181 CLR 41
Wiaceck v The State of Western Australia [2011] WASCA 254

JUDGMENT OF THE COURT

Summary

The appellant was convicted after trial of 87 sex offences committed against 13 women, over a 12‑year period. In all but 13 of the offences, the appellant drugged the complainants with an unknown substance in order to offend against them. The offences included multiple acts of sexual penetration without consent, the use of bondage, domination, urination, acts intended to demean the complainants and bestiality. The appellant was sentenced to a total effective sentence of 30 years' imprisonment, with an order that he be eligible for parole. He seeks leave to appeal against his conviction and against the total effective sentence.
The central issue at the trial was whether the complainants had consented to the sexual acts. The appellant had photographed or videoed the complainants whilst the sexual acts were occurring, and retained those images, which were subsequently seized by the police. The prosecution relied on the images to prove that the complainants had been drugged by the appellant and were incapable of consenting.
It was not disputed that the images were explicit, graphic and confronting. Indeed, the jury were told, by the trial judge and by counsel for both the prosecution and the appellant, that the evidence would include images of such a nature. The jury were directed, on multiple occasions, that it was important to put any emotional response to the images aside and not to allow such responses to influence their determination of the issues.
Part of the way through the trial, the jury requested counselling because some of the jurors were having difficulty coping with the evidence. In making that request the jury note referred to the images as 'extremely graphic, explicit, sickening and confronting'. The trial judge permitted the jurors to seek counselling with the proviso that they were not to discuss the details of the evidence with a counsellor. Counsel for the appellant did not oppose counselling being made available to jurors but later made an application to discharge the jury on the basis that the wording of the note created a perception of bias and that the request for counselling showed that the jury were incapable of performing their task. The trial judge refused that application.
There are two grounds of appeal against conviction. The first ground is that the learned trial judge erred by failing to discharge the jury in circumstances where a reasonable suspicion or apprehension on the part of a fair‑minded and informed member of the public would be that the jury would not discharge its task impartially. The second ground is that the learned trial judge erred by not inquiring of the jurors whether they remained impartial and were fit to continue.
On appeal the appellant's argument was essentially the same as that made at the trial, namely that the use by the jury of the description 'extremely graphic, explicit, sickening and confronting' was such as to engender a reasonable apprehension on the part of a fair‑minded member of the public that the jury would not discharge its task impartially. Further, it was argued that the request for counselling demonstrated that the jury were incapable of performing their task.
The appellant's submissions must be rejected. The nature of the evidence was such that an emotional or moral response to it by the jury, in the terms reflected in the note, was to be expected and, indeed, was anticipated. The description of the images used by the jury was accurate and was plainly included in the note to explain the need for counselling. The fact that jurors may have an emotional response to evidence does not mean that they are incapable of complying with directions to put such emotions to one side when they come to determine the legal issues in the case. The description did not suggest or imply that the jury had reached any concluded view regarding the issue of consent, or that they were unable to determine that issue having regard to the nature of the evidence.
Jurors perform an essential public service and are often called upon to deal with shocking and confronting evidence that is well outside their personal experience. That this task may put jurors at risk of vicarious trauma is unsurprising. Counselling is an appropriate and well‑recognised method of addressing and managing such risk.
The issue raised by the appellant is not that the jury had access to counselling, but that they requested it. The implication is that the request in itself revealed a fundamental flaw in the capacity of the jury to perform their role as the impartial judges of the facts. The days when a request for counselling was stigmatised as a sign of weakness or inability are hopefully long gone. To confess to having difficulties with a plainly very difficult task cannot be equated with an inability to do that task. The request by the jury for counselling in this case was manifestly reasonable and did not signify any inability on the part of the jurors to perform their task of fairly assessing the evidence and determining the issues. To the contrary, the request for counselling indicated that the jury were diligently and faithfully applying themselves to the task that they had been given. Nor was there any necessity for the trial judge to make further inquiries of the jury. The failure to make such inquiries was not an error.
The reasons for those conclusions are set out in more detail below. For those reasons, we would grant leave to appeal in respect of grounds 1 and 2 of the conviction appeal but dismiss that appeal.
There is one ground of appeal against sentence. It is that the total effective sentence of 30 years' imprisonment infringed the second limb of the totality principle. Significantly, the appellant did not seek to invoke the first limb of the totality principle. That is, the appellant accepted that the total effective sentence of 30 years' imprisonment was proportionate to the overall criminality involved in all of his offending.
The second limb is that a total effective sentence should not have a crushing effect; that is, the effect of depriving the offender of any hope of a useful life after completion of the sentence. The appellant relies on the fact that he would be aged 80 by the time he became eligible for parole and would be 82 if he was required to serve the entire sentence. It is said that the sentence would consume the entirety of the prime years of the appellant's life and that there is a distinct possibility that he will die before completion of the sentence. The appellant also relies on the restrictive conditions in which he is likely to serve that sentence, having regard to his former employment.
An appeal against sentence based on the totality principle must establish that the total sentence is so plainly unreasonable or unjust that it can be concluded that there has been an implied error in the exercise of discretion by the sentencing judge. The second limb of the totality principle is based on the power of a sentencing judge to exercise mercy in an appropriate case. Whether mercy is called for will always depend on the circumstances of the particular case.
The second limb of the totality principle does not require that a crushing sentence never be imposed. Rather, it is a consideration that may justify the reduction of a sentence. There will, however, be cases where it is apparent that, having regard to the seriousness of the offending conduct, a sentence is entirely appropriate notwithstanding that it may have a crushing effect. This is such a case.
For the reasons that follow, the appellant has failed to establish that the total sentence was plainly unreasonable or unjust. We would grant leave to appeal against the total effective sentence but dismiss the sentence appeal.

The prosecution case

The prosecution case was that between 2007 and 2019, the appellant committed 87 sexual offences against 13 women. The appellant met most of the women via online dating services, such as RSVP, Plenty of Fish and Tinder. The majority of the women went on a few dates with the appellant over a short period of time. Some, however, had longer relationships with him.[1]
[1] ts 170 - 171.
The prosecution case was that, whilst some consensual sexual conduct had taken place, other acts had occurred in respect of each of the women without their consent. In respect of all but 13 of the offences, the appellant had stupefied the women with an unknown substance in order to offend against them. The unknown substance had been administered without the knowledge of the women and had the effect of impairing their awareness and making them compliant with the appellant's demands, without rendering them completely unconscious. It also left many of the women with no memory of what had occurred. Expert evidence was to the effect that the symptoms described were consistent with a number of illicit drugs, including ketamine and GHB.[2]
[2] ts 171, 234.
The prosecution case was that the drugging of the women rendered them incapable of consenting to the sexual acts. In respect of the 13 offences where a stupefying drug had not been used, the State case was that the complainants had not consented to the specific acts concerned. In respect of all of the offences, the State case was that the appellant did not have an honest and reasonable, but mistaken, belief that the complainants were consenting.[3]
[3] ts 171.
The prosecution case was that the non-consensual sexual acts included sexual penetration of the vagina or the anus with various objects, including glass bottles, vegetables and a metal hook. The appellant had also urinated on the faces and in the mouths of some of the women. The appellant had committed acts on the women, as well as compelling them to perform acts. That included compelling two of the women to engage in sexual acts with a dog.[4]
[4] ts 171.
In respect of 11 of the 13 women, the appellant recorded himself sexually offending against them. Those images were catalogued and retained by him for subsequent viewing for his sexual pleasure. The images and videos formed a significant part of the State case against him. That evidence was relied on both to identify the act that was the subject of each count and also to prove that the women were incapable of consenting due to the effects of a stupefying drug.[5]
[5] ts 171 - 172, 1495.
It is not necessary for the purposes of this appeal to describe in detail the individual acts that constitute each of the 87 offences. Those acts have been referred to in the table that forms a confidential annexure to these reasons (Appendix A). It is sufficient for present purposes to say that it was the agreed position of the parties that the videos and images of the acts were graphic and confronting.
For most of the period that the offending continued the appellant was a uniformed serving member of the Western Australia Police Force. He made this known to each of the complainants and this caused them to believe that he could be trusted not to harm them. The prosecution case was that the appellant relied on that trust and abused it by committing the offences.[6]
[6] ts 1702, 1788.
Due, at least in part, to the effect of the drugs on the memory of the complainants, the offences went undetected for many years. When a police investigation commenced a search warrant was executed and the images were seized. The full extent of the offending then became apparent. In some cases the complainants continued to have little or no memory of the events depicted and the primary evidence was the still images or video recordings.[7]
[7] ts 1787, 1788.

The defence case

The defence case was that, other than in respect of a small number of the sexual acts which were completely denied, all of the other acts had occurred with the consent of the complainants. The appellant claimed that he had been frank about his sexual preferences with the complainants.[8]
[8] ts 242, 1803 - 1804.
The defence case was that each of the complainants had participated voluntarily in what was described as 'role‑playing', including consenting to being filmed. The appellant denied drugging the women and claimed that any appearance of being intoxicated in the still images and videos was due to the voluntary use of alcohol by the complainants.[9]
[9] ts 248 - 252.

The grounds of appeal - appeal against conviction

There are two grounds of appeal against conviction. They are as follows:[10]
[10] WAB 12 - 13.
1.The learned trial judge erred by failing to discharge the jury on a reasonable suspicion or apprehension on the part of a fair‑minded and informed member of the public that the jury would not discharge its task impartially: Webb v R (1994) 181 CLR 41; Wu v R (1999) 199 CLR 99; Crofts v R (1996) 186 CLR 427
Particulars
The suspicion or apprehension of partiality on the part of the jury is reasonably based on the facts that:
(a)the jury requested counselling for 'several' of its members mid-way through the trial, which was extraordinary and unprecedented and came about because they were so overwhelmed and conflicted emotionally by the visual material that they obviously could not deal with it objectively and dispassionately;
(b)the visual material on which the request for immediate counselling was based was emotionally described in the jury note (MFI 'F') as 'graphic, explicit, sickening and confronting', suggesting that the jury was so affected by the images that they had become incapable of dealing with it without immediate psychological counselling; and
(c)the jury's unanimous guilty verdicts on 87 separate counts involving 13 complainants were delivered after no more than six hours deliberation, in what would amount to no more than 4 minutes per count, in circumstances where there were material differences between the complainants and circumstances of the offending.
2.The learned trial judge erred in the execution of his discretion by not inquiring of the jurors, who had requested counselling during the trial, whether as a result of viewing the visual material and after obtaining counselling, they remained impartial and were fit to continue as jurors. Alternatively, the failure to inquire constituted a miscarriage of justice.
At the hearing of the appeal, counsel for the appellant placed no reliance on particular (c). It is self-evident that no implication could be drawn from the length of the deliberations in circumstances where the issues were confined and the jury had ample opportunity to consider those issues during the three‑week trial.
Counsel for the appellant also accepted that ground 2 was subsidiary to ground 1, in that if there was no basis for a reasonable suspicion or apprehension on the part of a fair‑minded and informed member of the public that the jury would not discharge its task impartially, there was no occasion for the trial judge to make further inquiries.[11] In these circumstances, it is convenient to deal with both grounds together.
[11] Appeal hearing ts 3.

Directions by the trial judge at the start of the trial

The trial judge was alive to the potential for jurors to be confronted by the graphic nature of the images that would be adduced as part of the State case. His Honour raised the issue with counsel at a pre‑trial hearing.[12] Following those discussions, after the appellant was arraigned and prior to the jury empanelment, the trial judge addressed the jury panel in the following terms:[13]
Now, if you are selected as a juror, ladies and gentlemen, you must approach your task with an open mind. You have to judge the case objectively and impartially. Now, obviously there are a large number of counts in this indictment, and the allegations made against [the appellant] are self‑evidently serious.
The Supreme Court, which is the only court which has jurisdiction in this [State] to deal with cases where the allegation is murder, often sits in this building. And if there is a murder case that was about to begin, and a juror was to say that he or she could not serve because he has strong feelings about murder, it would obviously be a nonsense. Everyone has strong feelings about murder.
Everyone has strong feelings about proven sexual offences, whether they're against an adult or a child. Many people have strong feelings about drugs. But that does not stop people serving on a jury, because in a murder case, for example, a juror may be required to decide whether the person who undoubtedly committed the murder is the particular accused, or whether his state of mind was such that it was not murder but a lesser offence such as manslaughter, or whether his actions were not unlawful because he acted in self‑defence.
…
It's the same here. An act of sexual penetration obviously is not inevitably an offence. It becomes an offence if it is proved that the particular act occurred, and if it also proved it is done without the other person's consent, and when the accused did not honestly and reasonably, but mistakenly, believe that the other person was consenting.
Those concepts of consent and honest and reasonable but mistaken belief will be the issues in this case for the majority of the counts on the indictment. There will be other counts where the issue for the jury's consideration will be whether the alleged act of sexual penetration, or indecent assault, as the case may be, occurred at all.
[12] ts 113 - 114.
[13] ts 159 - 160.

After the jury was empanelled, the trial judge made opening remarks to the jury, in which he said:[14]
Now, it's inevitable, ladies and gentlemen, that because of the nature of the type of charges or because of some of the evidence that you will hear, you will experience some emotions. You might experience feelings of prejudice or sympathy. Whilst that is understandable because we are all human beings and it's in the nature of human beings to experience such emotions when confronted with certain material, it is very important that you entirely put emotions to one side when you decide the appropriate verdicts in this matter.
Feelings of prejudice against [the appellant] or any of the prosecution witnesses, or feelings of sympathy in favour of [the appellant] or any of the prosecution witnesses, will stand in the way of the completely dispassionate analysis of the evidence that is asked of you.
[14] ts 164.
The trial judge explained that recordings of various acts that formed the basis of the charges would be played to the jury, and the issues for them to determine would be consent and honest and reasonable, but mistaken, belief as to consent.[15] His Honour then said:[16]
So you will, for a number of counts on the indictment, see recordings which the prosecution allege show a criminal act being committed, but which the defence will say show a sexual act which is not criminal, because the prosecution will be unable to prove lack of consent and/or lack of honest and reasonable mistake.
Ultimately you will have to decide whether, for a particular act which you have seen through the recording, actually occurred, and whether it amounted to the criminal offence as charged, or not.
Throughout this trial I intend to say absolutely nothing that suggests to you, or hints to you, what that decision ought to be, because it will be a matter entirely for you as the triers of fact, the judges of fact. But I think everyone will accept, or would accept, that it will necessarily be somewhat confronting for you to see recordings of intimate sexual actions occurring between two strangers to you.
It will be necessary for you to see such material, as it will be for all of us in this courtroom. There is no alternative. You will only be shown such material that is relevant, and no more. And I reiterate my earlier direction, that in trying this case it is essentially [sic] you do not give way to any prejudice or sympathy one way or the other.
[15] ts 164 - 165.
[16] ts 165 - 166.

The prosecutor's opening address

In his opening address, the prosecutor outlined the nature of the sexual acts that the jury would see in the photographs and videos, and advised the jury that this evidence would be graphic and confronting.[17] The prosecutor said:[18]
I want to make this important point to you at the outset. During the course of this trial, it will be readily apparent to you that the accused has a preference for BDSM [bondage, discipline (or domination), sadism and masochism (as a type of sexual practice)]. The accused enjoys being sexually dominant over women. He enjoys inflicting pain on women whilst engaging in sexual activity. He enjoys bondage. He enjoys restraining women. He enjoys his sexual partners to be submissive. These are the accused's sexual preferences.
Those things are not criminal if the other person freely and voluntarily consents to those things happening. The accused is not on trial for his sexual preferences. This is not a trial about BDSM. Within limits, the law does not care what two consenting adults do behind closed doors.
What the law does concern itself with is what happens when someone does something to another without that person's consent.
[17] ts 171 - 172.
[18] ts 173 - 174.

Defence counsel's opening address

In his opening address, senior counsel for the appellant referred to the allegations and noted that if done with consent, the conduct (other than the bestiality) was not illegal and urged the jury not to allow moral judgments to influence their determination of the issues. In this regard, senior counsel said:[19]
You are not to be swayed by things that are not evidence, such as prejudice, sympathy, speculation, opinions or views that you might have about particular types of offences or conduct. It includes obviously views that you might have about certain features of sexual behaviour.
This is not a court of morals. Whatever views you may have about the appropriateness of the behaviour that you're going to see during the course of trial, should not sway you in your view, your objective and dispassionate view of the facts. If you wrongly judge people, and certainly the accused, because it might not be something that you would do, or something that might offend your sensibilities. That's just the way it is in life isn't it?
And except for bestiality, none of the acts that are subject of the charges in this case are criminal acts if they're done consensually. So people are at liberty, except for as I say, bestiality to do whatever they do sexually. It may not be to your taste, so don't be swayed by it.
[19] ts 246.
A little later, senior counsel noted that the jury would be obliged to view the images and videos. In this regard, he said:[20]
Now, you're going to be obliged to view multiple images. And they are graphic and they are confronting. And they are images of sexual activity and it's going to be difficult for you to focus on it. But you really have to focus on it, because as the prosecutor's explained [for] the most part, the females have no recollection of these things having taken place.
So you're really going to have to view the images that we put to you, because it's the State's case that - I think for the most part - you can see the rapid deterioration and intoxication of the complainants as the sexual activity continues. But you're able to see someone who may be quite aware, and voluntarily participating in sexual activity. Then you see the sudden decline. That's the State's view about what you're to be shown. So you have to focus on that to see whether it's a view that you take.
Now, it was never intended that these images were to be shown publicly. It's humiliating and embarrassing. Not only for the complainants, but also for the accused man as well.
The defence case is that each of these females were participating voluntarily in these sexual acts, and that consent was freely and voluntarily given to these things occurring. And they willingly and actively participated in what's known as role‑playing and which included being filmed. And you've heard some description about the certain - certain of the acts that are alleged to have occurred and you will see images - images of this.
But the question is, role‑playing is something that people do. And people use sex toys and people act out different roles, sometimes dominant and submissive roles. People use such things as riding crops to - to whip the - one of the participants.
All these things, and you'll see this over the course of the trial, but when you view the images, just be aware that some of the complainants deny that - any knowledge of having been filmed. Well, you'll see that some of them are looking directly into the camera and it would be very - something very difficult to - to not see. And often you'll see them posing, in a sexually provocative - into - into one or more cameras. (emphasis added)
[20] ts 247 - 248.

The directions given during the trial, prior to the jury note

The first of the complainants commenced giving evidence on Wednesday, 14 September 2022, which was day two of the trial. At the end of that day, in dismissing the jury for the day, the trial judge reminded them to continue to keep an open mind.[21]
[21] ts 331.
By the end of day four (Friday, 16 September 2022), the evidence of three complainants had been completed and the evidence of a fourth complainant had been given in part. At the end of that day, the trial judge gave the following direction to the jury:[22]
I remind you, of course, as I will at the end of each week of the presumption of innocence, the fact that the burden of proving each of the counts on the indictment is always on the prosecution, and that the standard is beyond reasonable doubt. I remind you that what is required of you is a dispassionate, impartial analysis of the evidence that has now progressively been placed before you, without giving way to prejudice or sympathy one way or the other.
I remind you, of course, not to discuss the evidence or the issues with anyone outside your number. I'm mindful, of course, that the material that you are required to watch in this trial has been and will be confronting. You are clearly paying, each of you, careful attention to the evidence that you are hearing in this case. I thank you for it. The importance of your task in this trial cannot be overstated. Thank you for your service in this way.
[22] ts 512.
By the end of day seven of the trial (Wednesday, 21 September 2022), 10 complainants had given evidence. The trial judge again reminded the jury to continue to keep an open mind.[23]
[23] ts 796.

The jury note and the response to it

The court did not sit on Thursday, 22 September 2022, as that day was a public holiday. On Friday, 23 September 2022, during the mid‑morning break, the jury sent a note to the trial judge in the following terms:[24]
Good morning, Your Honour. Several of the jurors empanelled on case 4.1 are finding it very difficult to cope with the extremely graphic, explicit, sickening and confronting evidence being presented at this trial. We therefore request counselling for our jurors on an individual basis to be made available as soon as possible rather than having to wait until the end of the trial. Thank you.
[24] ts 826.
By this point, the jury had heard complete evidence from 10 complainants and preliminary evidence from an 11th complainant. They had not yet heard any evidence regarding the offending relevant to the 11th complainant. The jury had seen photographic and video material in respect of 40 counts and had heard evidence in respect of a further nine counts. This included evidence in respect of the 10th complainant, which included particularly graphic video footage.
Following receipt of the jury note on 23 September 2022, the trial judge and counsel engaged in a discussion concerning the appropriate response to the note. The prosecutor stated that there was no difficulty with the jury being allowed to seek counselling, although he suggested that they be told that they should not discuss the evidence itself, but were permitted to communicate, in a general way, the nature of the material that they had been exposed to, in order to seek assistance.[25] Defence counsel did not oppose this course of action, noting that 'juries show themselves constantly to be resilient and capable of being objective about whatever material comes before them'.[26]
[25] ts 827.
[26] ts 827 - 828.
The trial judge then gave directions in the following terms:[27]
So the first thing to say is to really echo something that I said to you at the very outset, after you had been empanelled. There is no doubt that this material is confronting, and it may well be that some of the other adjectives that have been used in the note are also appropriate. And I explained to you in advance that you would unfortunately be required to view confronting evidence, but that there was no alternative to it, and it would be limited to the minimum that you need to see.
But I also told you, of course, that although you'd be seeing this material, it is very much in issue whether or not it reveals criminal activity. That ultimately is what you have been sworn or affirmed to try. So in most instances on this indictment, not all, but in most instances, and certainly where there's recorded material, it's accepted that certain things occurred.
But what's been placed in issue for your determination ultimately is whether what you see in the videos and photographs was consensual or not. The State must prove beyond reasonable doubt it was not consensual. And even if the State succeed in that, they must also prove, again beyond reasonable doubt, that [the appellant] did not have an honest and reasonable, albeit mistaken, belief that the relevant complainant was consenting.
So whilst the material is confronting, it is material about which it is - there is a dispute as to whether it reveals criminal activity in that sense. And it will be for you to determine that ultimately, bearing in mind the presumption of innocence, the burden of proof and the standard of proof.
The second thing to say is that counselling is always available to a juror or jurors at the end of the trial, and I had proposed to make that explicitly clear to you at the very end of the trial when I thank you for your service and discharge you. But I'm not going to stand in the way of anyone seeking individual counselling as soon as they feel that they need it, as opposed to waiting until the end of the trial. And the jury officer will provide you with a number of an organisation or an individual that you can [call] in that regard.
The caveat is that of course, having been sworn or affirmed as jurors, as I've told you on a number of occasions, you can't discuss the evidence or the issues with anyone outside your number.
So there's a certain artificiality to it, but if you did seek counselling during the course of the trial, it seems to me that you would be at liberty to say that you've necessarily had to look at material that you find confronting, but without going into any more detail about what that evidence is, what the issues are. So that you're not discussing, effectively, this case with someone outside your number other than receiving counselling, if appropriate, because of the impact that viewing this material understandably has upon you.
[27] ts 833 - 834.
After the directions were given, it was agreed that the court would adjourn early that day, after completion of the current witness's evidence, to give the jury a rest over the forthcoming long weekend.[28] Before being released, the trial judge gave the jury the following directions:[29]
So just to reiterate something that I said to you earlier, as well as the general reminder which I will also give to you, the jury officer will provide what's called a juror release form, or at least an extract of it, which provides information about how you would go about seeking individual counselling should you wish to do so, and I will permit you to do so during the course of the trial if you wish to, as opposed to waiting until the end.
I do need to direct you that if you do seek counselling, bear in mind the observations that I made earlier, of course, concerning the fact that the material that you've seen is not in any way accepted to be a criminal act. That's the issue that you must in due course determine.
So if you do seek counselling, you mustn't relay any of the evidence or the issues that you are to decide, save to say that you could say, should you wish to do so, that you have been required to view material which you regard as confronting, or whatever adjective you consider to be appropriate, and to seek professional assistance in that regard, and any such discussions, of course, should be entirely confidential between you and the relevant professional.
So we'll break now until 10 am on Tuesday, ladies and gentlemen. I hope you enjoy the long weekend and the football tomorrow. A reminder not to discuss the evidence or the issues with anyone outside your number. Continue to keep an open mind. Bear in mind the directions that I've given you.
[28] ts 834 - 835.
[29] ts 907 - 908.

The application to discharge the jury

Over the course of the long weekend, senior counsel for the appellant sent an email to the associate of the trial judge foreshadowing an application to discharge the jury. That application was made when the trial resumed on Tuesday 27 September 2022.[30]
[30] ts 910.
The primary basis for the application was a contention that the language used in the jury note to describe the evidence was 'emotive and powerful' and 'florid', and that that language, taken together with the request by the jury for counselling, was suggestive of a fixed view that the jury had in relation to the material. Senior counsel for the appellant submitted that '[t]he situation is if they need immediately [sic] counselling, they're not fit to continue. That's the bottom line'.[31]
[31] ts 911 - 913, 916.
The State opposed the application, submitting that the jury's use of the word 'sickening' was not sufficient to give rise to an apprehension or suspicion on the part of a fair‑minded and informed member of the public that any individual juror, or the jury as a whole, had not discharged, or would not continue to discharge, its task impartially.[32]
[32] ts 913 - 914.

The ruling on the application to discharge the jury

The trial judge delivered detailed reasons dismissing the application to discharge the jury.[33] His Honour referred to the relevant authorities and the test to be applied in respect of an application to discharge the jury. He noted the jury's description of the material and said:[34]
There is no doubt, returning to this case, that some members of this jury having been exposed to hundreds of photographs and videos have reached a view as to how this material should be characterised.
Whilst it is of course open to counsel on behalf of [the appellant] to submit to the jury as a whole that such an assessment is misplaced, I accept that it is likely that some jury members will retain the opinion that they have expressed as to the nature of the material. This is unsurprising.
It is difficult to see how anyone who did view that material could describe it in any different terms.
[33] ts 917 - 926.
[34] ts 921.
The trial judge referred to two examples of particularly disturbing footage that the jury had been required to view and noted that it was inevitable that at least some members of the jury would reach the conclusions about the material expressed in the note. His Honour noted that defence counsel had cross‑examined the complainants about the surrounding circumstances of the relationship they had with the appellant, giving rise to at least a possibility that the sexual inclinations of the complainants were such that they would be prepared to consent to sexual acts that most members of the community would consider to be 'completely beyond the pale'.[35] His Honour then said:[36]
Of course, a fundamental issue in this case will be, notwithstanding a particular complainant's enthusiasm for unorthodox sexual behaviour, whether in respect of a given act, they did not consent because they had [been] stupefied by an unknown substance. That is the pivotal issue between the prosecution and the defence in this case.
There is nothing in the note that in my mind takes that issue away from the defence, nor does the note enable me to conclude that the jury have predetermined that a particular complainant did not consent and that [the appellant] did not believe that she did.
I am perfectly happy to reiterate my early directions that it is critical that the jury do not form any settled view on the key issues of whether a particular complainant was stupefied, whether she consented and whether [the appellant] held an honest and reasonable albeit mistaken belief.
I am far from satisfied that this note justifies a conclusion that the jury would not comply with such a direction. This case presents a challenge for the defence, obviously. But it would present a challenge for any jury, given the nature of this material which is unprecedented, in my experience. Having chosen to defend the matter, [the appellant], in my judgment, has to date received a fair trial. And subject to any unforeseeable developments, he will continue to receive a fair trial.
[35] ts 921 - 923.
[36] ts 923 - 924.
The trial judge noted that given advances in technology, especially those that enabled such material to be readily created, stored and replayed, the challenges for a contemporary jury were 'more profound'.[37] His Honour referred to the High Court's recent acknowledgement of vicarious trauma arising from the practice of criminal law,[38] and authority in this State referring to the need for jury management practices to change and evolve in accordance with changing community standards and expectations.[39]
[37] ts 924.
[38] Kozarov v State of Victoria [2022] HCA 12; (2022) 273 CLR 115.
[39] Johnston v The State of Western Australia [2012] WASCA 98 [60].

The trial judge concluded:[40]
I do not consider that the note means that the jury are not fit at this stage to continue to try this matter. Rather, the jury have indicated that they wish counselling to be available as soon as possible, as opposed to having to wait until the end of the trial. The note falls short, in my view, of giving rise to a reasonable apprehension that the jury would not discharge their task impartially.
[40] ts 925 - 926.
Counsel for the appellant did not ask the trial judge to make any further inquiries of the jury. In particular, there was no request that inquiries be made as to whether the jury, or any of them, felt that they could not continue to undertake their duty impartially.

The subsequent directions to the jury

Following the trial judge's ruling on the application to discharge the jury, he again directed the jury that any counselling was to be subject to a requirement not to disclose the evidence or the issues, other than to say that the jury had been required to view material that they found to be confronting. His Honour again directed the jury to keep an open mind on the key issues in the trial.[41] Similar directions were made at the end of that day, day 10 (Wednesday, 28 September 2022), day 11 (Friday, 30 September 2022), day 15 (Thursday, 6 October 2022), days 16 and 17 (Monday, 10 October 2022 and Tuesday, 11 October 2022) during the State's closing address, and on day 19 (Wednesday, 12 October 2022) at the end of defence counsel's closing address.[42]
[41] ts 929 - 930.
[42] ts 1029, 1139 - 1140, 1226 - 1227, 1623, 1756, 1789, 1864.
In the trial judge's charge to the jury, he said:[43]
As the jury in this criminal trial, ladies and gentlemen, you must assess the evidence that you have heard impartially, analytically and dispassionately. …
…
It is important that you maintain your detachment and decide the case according to the evidence and the law and not according to any prejudice, bias or sympathy against or in favour of any of the complainants or against or in favour [of the appellant]. Whilst no doubt each of you would have found at least some of the 618 photographs and videos that you have seen confronting and upsetting, you must not allow such a reaction to lead to a reasoning process that the accused is thereby guilty of the relevant offence.
Rather, you must dispassionately assess the evidence, including the photographs and the videos, decide whether a given act occurred and, if it did, whether it was without the complainant's consent. And if it was without her consent, that [the appellant] did not honestly and reasonably, albeit mistakenly, believe that she consented at all times applying the standard of proof beyond reasonable doubt. (emphasis added)
[43] ts 1872 - 1873.

The relevant legal principles

The legal principles relevant to the exercise of the power to discharge a juror, jurors, or a whole jury on the basis of partiality were recently considered and outlined by this court in Mehta v The State of Western Australia.[44] The relevant test is that set out by the High Court in Webb v The Queen,[45] namely whether an incident involving a juror or jury is such that, notwithstanding any proposed or actual warning of the judge, it gives rise to a reasonable apprehension or suspicion on the part of a fair‑minded and informed member of the public that the juror or jury has not discharged, or will not discharge, their task impartially.
[44] Mehta v The State of Western Australia [2023] WASCA 24 [59] ‑ [75].
[45] Webb v The Queen [1994] HCA 30; (1994) 181 CLR 41.
The requirement that juries determine cases on their merits and not be influenced by prejudice or sympathy does not mean that jurors will not have an emotional or moral response to the evidence. The point of the directions is to accept the reality that jurors will have such feelings but require them to put them aside when deliberating. Nor is it to be expected that jurors will maintain 'stony-faced impassivity' throughout a trial.[46]
[46] Wiaceck v The State of Western Australia [2011] WASCA 254 [37]; See also Haruna v The Queen [2013] WASCA 170; (2013) 278 FLR 194.

The appellant's submissions

The appellant submits that a reasonable apprehension that the jury would not discharge its task impartially arises from one or both of the following:[47]
1.the jury's use of an emotive description of the visual material, which suggested that the jury had already formed a view that the appellant was 'sick or depraved', such that they could not objectively and dispassionately focus on the key issues to be determined; and further or alternatively
2.that the jury's request for counselling, at a time when the evidence was not yet finished, raised a serious question as to whether the jury were of a state of mind that was not compatible with the unemotional and impartial consideration of the case.
[47] WAB 12, 22 - 24.
The appellant acknowledges that some of the descriptors used by the jury in the note had been used by counsel and the judge but submits that the use of those descriptors together indicated that the jury had reached an adverse view of the appellant. At the hearing of the appeal, senior counsel for the appellant accepted that the descriptors were accurate, but nonetheless maintained that they would indicate bias on the part of the jury to a reasonable informed observer.[48]
[48] Appeal hearing ts 6, 19 - 21.

The appeal against conviction - disposition

The appellant opposed an application by the State for trial by judge alone. He did so well knowing that this would mean that jurors would have to view the evidence. Indeed, his defence case relied on the visual evidence to the extent that it showed that some of the complainants were apparently conscious and compliant with verbal directions. The fact that the defence case required the jury to pay close regard to the evidence and that the jury was likely to find the evidence confronting, was an essential component of the presentation of that case.
All participants in the trial, including defence counsel, anticipated, indeed expected, that the jury would have an emotional reaction to the evidence. To the extent that the note indicated that some jurors had indeed experienced such a reaction, it only served to confirm that expectation. Jurors are not expected to be impassive and unemotional in their reactions to the evidence. The purpose of the standard warning for jurors to put their emotions to one side is to recognise that jurors will have such feelings, that they should be conscious of them, and that they must put those feelings to one side when they come to consider whether the evidence establishes the accused's guilt.
The jury's description of the material that they had viewed as 'extremely graphic, explicit, sickening and confronting' was plainly accurate. There could be no reasonable dispute in that regard, and senior counsel at the hearing of the appeal accepted as much. Of these descriptors, 'explicit, graphic and confronting' were words that had been used by counsel and the trial judge in reference to the evidence.[49] The only words that were added by the jury were 'extremely' and 'sickening'. Whilst it is not suggested that either of those words, or indeed any of the words, were inaccurate, the appellant submits that the conjunction of this series of words conveyed a moral judgment by the jury, indicative of bias.
[49] See, for example, ts 172, 176, 196, 201, 247, 269, 512, which all occurred prior to the jury's request for counselling.
It is important in the context of this case to appreciate that the visual material was not merely graphic in its depiction of sexual activity, but also involved practices that, whether or not consensual, were likely to be outside the experience of ordinary jurors and to elicit an emotional reaction from them. Thus, the fact that the jurors, or at least some of them, had found the evidence explicit, graphic, confronting and sickening could not be taken to be any indication of a view, preliminary or otherwise, as to whether the acts were consensual. The note may well have indicated an emotional or moral response to the evidence, but that does not mean that the jury were biased regarding the issue that fell for their determination, that is, whether the complainants had consented to the sexual acts.
At the hearing of the appeal, senior counsel for the appellant suggested that confirmation that the jury had had the emotional response referred to in the note was sufficient indication that they were incapable of bringing an unbiased mind to their task. It was pointed out that this was tantamount to a submission that no jury could determine these charges given that the reaction of the jury was an entirely unsurprising one.[50] That submission is inconsistent with the appellant's opposition to a trial by judge alone. In any event, for the reasons already stated, an emotional response to the evidence was not an indication of bias regarding the issues that fell for determination by the jury.
[50] Appeal hearing ts 24 - 31.
An emotional reaction to the visual evidence was entirely normal and predictable. Juries are not expected to be impassive and display no response to the evidence. Juries are commonly asked to deal with confronting and challenging material. Confirmation of an emotional reaction is unsurprising and does not in itself suggest predetermination of the factual issues, in particular the issue of consent. Nor does it indicate the existence of a bias or prejudice against the appellant that is incapable of being put aside. That jurors have emotional reactions to the material they are required to view is not necessarily inconsistent with their duty, and could not lead reasonable informed observers to doubt, in a case like the present one, that they will discharge that duty impartially.
It must also be borne in mind that the purpose of the note was to seek counselling. In this regard, the use of the descriptors was clearly intended to succinctly convey the reasons why counselling was believed to be necessary. The note did not state, nor did it imply, that the jury as a whole, or any of the jurors, had reached any concluded view in respect of any issue on which the appellant's guilt fell to be determined. The use of the word 'sickening' merely served to emphasise the several jurors' needs for assistance. It is reasonable to infer that the jury may have been concerned that their request would not be taken seriously if they confined themselves to the language that had been dispassionately employed by the experienced lawyers in the courtroom.
As to the contention that the jury's request for counselling indicated their inability to continue, that is not an inference that is reasonably available from a reading of the note. Rather than conveying that the jury were unable to perform their task, the jury's request for counselling to be made available immediately demonstrated an awareness on their part of the need to ensure that their mental health was sufficiently supported to ensure that they were not distracted from their task by the nature of the material they were exposed to. The request for counselling indicated insight and awareness by the jury of the need to process their emotional responses to the material.
The offering of counselling services to jurors after serving on a jury is now routine. Jurors are provided with written information in this regard after they are discharged. This acknowledges that counselling may be necessary for members of the public who are exposed to potentially disturbing material as a result of their jury service. It is to be expected that some people who are summoned for jury service will have previously served on a jury and will be aware of the availability of counselling.
Jurors are, by definition, members of the public who have no connection to the case. Many jurors will have had no exposure to the criminal justice system. The cases they sit on may involve allegations that are well outside their personal experience and will be shocking and confronting. Jurors are unlikely to have the training or experience that provides a measure of protection to others who choose to work in the system. A system that demands such onerous service from members of the public must take reasonable steps to ensure that the performance of that duty does not come at too great a personal cost.
In the past, those who were required to deal with traumatic events, in the performance of their occupations or in carrying out a public duty, may have felt discouraged from seeking counselling because this would be viewed as a sign of weakness or inability. The modern approach to dealing with trauma is to recognise that seeking counselling is not a sign of weakness or inability, but a recognition that an unpleasant or difficult job may be undertaken more effectively and with fewer long-term effects for the person concerned if they able to avail themselves of counselling in a timely way. It may safely be assumed that members of the jury, drawn as they are from the general public, reflect these modern attitudes to counselling. Thus, the request for counselling cannot be taken as an indication that the jury, or any of the jurors, considered that they were incapable of doing their job. That this jury requested counselling was consistent with them diligently and faithfully attending to the necessary task, rather than to the contrary. It could not suggest to a reasonable fair‑minded observer that the jury was incapable of discharging their task impartially and in accordance with their oaths.
In many cases, the provision of counselling after the jury has been discharged will be an adequate response to any trauma experienced by the members of the jury. This case was exceptional in the quantity and nature of explicit and confronting material that the jury were required to view. The justice system must be sufficiently adaptable to meet the challenges that arise where juries are required to view such material. As the trial judge correctly noted, the advent of modern technology brings with it a likelihood that juries will be asked to view such material more often. In some cases formal admissions may obviate the need for the jury to view the material. This was not such a case. The nature of the defence case and the lack of any admissions meant that the jury's viewing of the evidence was unavoidable. In these circumstances, the jury's request for counselling was understandable and deserving of respect. The trial judge approached that request in a measured and appropriate way, which properly balanced the needs of the jury against the need to ensure that the fairness of the trial was not compromised. Whilst counsel for the appellant referred to the unusual, if not unique, nature of a request for counselling by the jury during the course of the trial, it was not suggested that the manner in which the trial judge dealt with that request was inappropriate. Nor can any inference be drawn from the unusual nature of the request given the unique circumstances of this case.
Furthermore, the note to the jury needs to be seen in the context of the directions given by the judge. His Honour gave extensive and repeated directions to the jury requiring them to assess the evidence impartially and independently of any emotional response that they may have to the material that they viewed. There is nothing to suggest that the jury were incapable of following, or did not follow, these directions. There is nothing to justify a departure from the assumption that a jury will act in accordance with the directions of the trial judge.
As to ground 2, there was nothing in the note that called for the judge to ask further questions of the jury. The note did not convey that any individual juror felt unable to continue. The note did not, for example, indicate that any juror wished to be excused from further service or was unable to cope with the evidence. The fact that the jurors, or at least some of them, were having difficulty coping with the evidence does not suggest that they were incapable of doing so. It was simply to express the view that jurors may be assisted in performing their task by obtaining counselling. In circumstances where the jury in this case had sent multiple questions and requests prior to this note, it is reasonable to infer that had any juror felt themselves unable to continue to serve and comply with their oath or affirmation, they would have said so.
Given that the note from the jury did not suggest that any of the jurors could not discharge their duty, as opposed to having difficulty coping with the evidence, there was no occasion for the trial judge to make inquiries as to the capacity of any of the jurors to continue. This case is unlike I v The State of Western Australia[51] in which a juror sent a note referring to having a preconceived opinion. In that case, the trial judge was found to have been in error in not seeking to question the juror as to the nature of that opinion. In the present case, the jury did not suggest any incapacity, inability, preconceived opinion or conclusion regarding the issues or the charges. Absent such a suggestion, it is not apparent what questions would have been appropriate.
[51] I v The State of Western Australia [2006] WASCA 204.
To interrogate individual jurors as to whether they were incapable of continuing in circumstances where they had not suggested such a thing, might have be taken as an implication by the judge that the jurors were not capable. Furthermore, jurors are not volunteers. It is not a question of asking jurors whether they wish to continue or are happy to continue. In many cases, this being a prime example, it could not be supposed that any of the jurors would have approached their task with any degree of enthusiasm. In the absence of any indication that a jury or any individual jurors are incapable, questions directed to that issue would be at risk of being taken as an invitation to opt out of an onerous task. That would make trials involving difficult or confronting evidence problematic, if not impossible, to run.
Whilst we would grant leave to appeal on the two grounds, those grounds fail. The appeal against conviction must be dismissed.

The ground of appeal - appeal against sentence

There is one ground of appeal against sentence. It is as follows:[52]
The appellant appeals against sentence on the ground that the total effective sentence of 30 years['] imprisonment infringed the second limb of the totality principle.
[52] WAB 68.
In oral submissions, counsel for the appellant accepted that, by necessary implication, this ground means that no issue is taken with the correctness of any of the individual sentences, nor is it suggested that the total effective sentence was disproportionate to the criminal conduct when viewed as a whole. The ground is confined to the question of whether the total effective sentence was crushing, in that it deprived the appellant of any reasonable expectation of a useful life after the completion of his sentence.[53]
[53] Appeal hearing ts 36 - 37.

The facts of the offending

The facts and circumstances of the appellant's offending were summarised by the sentencing judge in his sentencing remarks.[54] The full details of the offending make for harrowing reading. A broad outline of those facts is contained in the summary of the prosecution case referred to earlier in these reasons. As noted earlier, over a period of 12 years, the appellant, a serving police officer, systematically and callously preyed upon his victims in a violent and forceful fashion. He stupefied many of his victims to render them compliant and incapable of resisting his crimes. The offending involved a high level of depravity, including urinating on the victims, sexual penetration with vegetables, glass bottles and a metal hook, and compelling two of the victims to engage in acts of bestiality. The appellant's treatment of the victims was depraved, humiliating and degrading, and was recorded by him for his own continuing sexual gratification.
[54] ts 2055 - 2093.

The confidential annexure to these reasons (Appendix A) provides a brief description of each offence and the individual sentences imposed. Given that the ground of appeal is confined to the second limb of the totality principle no greater detail is required.
The victims have been referred to by number in the confidential annexure in order to further protect their identities. In doing so the individual humanity of the victims has not been overlooked. That includes having regard to the victim impact statements of those victims that felt able to submit one. No summary of those statements can possibly convey the profound, devastating and enduring effect that the offending has had upon the victims.

The sentencing judge's remarks

In categorising the seriousness of the appellant's offending, the sentencing judge said:[55]
I find, [the appellant], that your compulsive need to derive sexual gratification from the infliction of pain, of humiliation and degradation on female victims means that you gave no thought whatsoever, and still don't, to the impact, at the time and subsequently, of the physical injuries that you inflicted upon those victims. Your retention and categorisation of these materials establishes in my mind, beyond reasonable doubt, that you have derived ongoing sexual gratification from watching the extreme violence that you inflicted on your victims.
Each of the victims is a person with fundamental rights, which you completely ignored. You were not entitled to use any of them for the purpose of sexual pleasure. Your conduct is self‑evidently worthy of severe punishment so as to demonstrate the community's utter abhorrence of this conduct and to provide some form of general deterrence.
Personal deterrence and the protection of vulnerable women are of particular importance, having regard to the very serious features of your offending, your continuing stance of denial, your complete failure to understand appropriate conduct towards women, in particular regarding issues of consent in the sphere of BDSM, and your failure at any stage to display a shred of remorse or empathy for your victims.
A very large number of your offences are, even when viewed individually, very serious. Your calculated predatory behaviour, the deliberate stupefaction, the number of victims, the depravity exhibited and the period over which you offended puts you into a truly exceptional category.
[55] ts 2099.
His Honour concluded that he was comfortably satisfied that when the offending was considered as a whole, it fell within the worst category for totality purposes.[56]
[56] ts 2100.
Only six of the 87 individual sentences were accumulated to arrive at the total effective sentence of 30 years' imprisonment. The trial judge expressly referred to the totality principle and was satisfied that the total effective sentence was appropriate.[57]
[57] ts 2101 - 2104.

Appellant's submissions

The appellant submits that the term of 30 years is a 'near whole of life sentence'. The effect of the sentence is that the appellant would be eligible for parole when he is 80 and would complete the whole sentence shortly before his 83rd birthday. It is submitted that the total effective sentence is so long as to deprive the appellant of any reasonable expectation of a useful life on release. Further, it is said that the sentence is to be served during the appellant's remaining 'prime years', leaving a poor expectation of quality of life and a limited lifespan on release.[58] An application to rely on additional evidence of statistical information regarding life-expectancy was not pressed at the hearing of the appeal as it was conceded that the statistics did not relate to the appellant's circumstances.
[58] WAB 88 - 89.
The appellant submits that the likelihood is that, given his former employment, he would serve his sentence in protective custody. This would make the sentence more onerous. Furthermore, the appellant would have little or no support mechanisms in the community upon his release.[59]
[59] WAB 89; appeal hearing ts 39.

Appeal against sentence - relevant legal principles

A claim that a sentence is in error because it breaches the totality principle is an assertion of implied error. In such a case the appellant must establish that the sentence is plainly unreasonable or unjust, though there is no express error in the reasons of the sentencing judge. In this court the totality principle has been referred to as having two limbs. The first limb is concerned with whether the total effective sentence is proportionate to the offending when viewed as whole. The second limb is concerned with whether the total effective sentence has a crushing effect.
In Gulyas v The State of Western Australia,[60] Steytler P (McLure & Miller JJA agreeing) explained the effect and application of the second limb of the totality principle:
Advanced age has sometimes been held to be relevant to the second limb of the totality principle, which is essentially to the effect that a sentence should not be imposed that is such as to destroy any reasonable expectation of a useful life after release: Martino v The State of Western Australia [2006] WASCA 78 [16]. For example, in Bishop v The Queen [2003] WASCA 79 [75], Parker J (with whom Malcolm CJ and Murray J agreed) noted that, in the case of an offender of very advanced age, a sentence that would otherwise be appropriate may be crushing because of the prospect of death before the term has been served. The same might be true in a case in which there is the prospect that death will follow very shortly after the term has been served.
However, the second limb of the totality principle is not an absolute principle. In Crowley (1991) 55 A Crim R 201, 205 ‑ 206, Crockett J (Southwell and Ashley JJ agreeing) said, in the Victorian Court of Criminal Appeal, that whilst a court may always be reluctant to impose a crushing sentence upon an offender, it does not follow that every sentence that deserves to be called crushing must on that account alone be held to be manifestly excessive. He said that there will be cases in which the offender has, by his or her criminal act or acts, forfeited the right to any hope or expectation of being released from confinement at a time that permits some useful period of life left over to enjoy.
Crockett J's comments were approved in Bazley (1993) 65 A Crim R 154. The court (Crockett, Hampel and Smith JJ) there said that, whilst the age of an offender is a relevant consideration of considerable significance in some cases, 'it cannot be allowed to be a justification for the imposition of an unacceptably inappropriate sentence' (158). The court also said that it was wrong to approach the question of an appropriate minimum term on the basis that there was a need to guarantee some measure of life after release. It said (159):
'If such a course were followed it may lead … to an impermissible disregard of factors required to be taken into account such as general deterrence and retribution. The fact that the respondent did not require to be specifically deterred or rehabilitated cannot allow the part to be played by other relevant considerations to be obscured. Nor can those other considerations be disregarded by treating the question of the respondent's age as the primary consideration.'
Similarly, in [Holyoak v The Queen (1995) 82 A Crim R 502] (507), Allen J said that it is not the law that it is never appropriate to impose a minimum term which will have the effect, because of the advanced age of the offender, that he or she may spend the whole of his or her remaining life in custody. (See also [R v Cumberbatch [2004] VSCA 37; (2004) 8 VR 9] [12] ‑ [13]).
However, in R v Miller [2000] SASC 16; (2000) 76 SASR 151, Doyle CJ, when considering the sentence imposed upon a man who had been convicted of six counts of murder, took into account the possibility that he might die in prison, or at best have a limited period of liberty after serving his sentence. He said that this would ordinarily require careful consideration of the totality principle and might well result in the reduction of a sentence or non‑parole period.
[60] Gulyas v The State of Western Australia [2007] WASCA 263; (2007) 178 A Crim R 539 [48] - [51].
More recently in Wark v The State of Western Australia[61] this court said:
The second limb of the totality principle is that the total effective sentence imposed on an offender should not constitute a 'crushing' sentence; that is, it should not destroy any reasonable expectation of useful life after release from custody.
Advanced age is a relevant consideration in determining whether a sentence will be crushing. The rationale is that each year of a sentence represents a substantial proportion of the period of life which is left to an offender of advanced age. See R v Hunter ((1984) 36 SASR 101), 103 (King CJ); Braham v The Queen ((1994) 116 FLR 38), 51 (Angel J); R v Whyte ([2004] VSCA 5; (2004) 7 VR 397), 405 ‑ 406 (Winneke P; Bongiorno & O'Bryan AJJA agreeing); Gulyas v The State of Western Australia ([2007] WASCA 263; (2007) 178 A Crim R 539) [34] (Steytler P; McLure & Miller JJA agreeing); and R v Iles ([2009] VSCA 197) [31] - [35] (Redlich JA; Neave JA agreeing).
However, whether and, if so, to what extent, leniency should be given to an offender of advanced age depends on all the facts and circumstances of the particular case. As Steytler P noted in Gulyas, the authorities emphasise that age is only one factor in the sentencing process, and that advanced age can never be a justification for a sentence which is not fairly proportionate to the offence or is otherwise inappropriate [35]. See also Hunter (103). An offence may be so serious that humanitarian considerations relating to advanced age cannot be accommodated.
So, the second limb of the totality principle is not absolute. There are cases in which an offender, by the very nature of their criminal acts, has forfeited the right to any expectation of being released from prison at a time that would permit them to enjoy their remaining life.
As a matter of fact, it is unusual for a total effective sentence to be reduced because it infringes the second limb of the totality principle. Even in circumstances where an offender is of advanced age, that fact alone does not necessarily require a reduction in sentence.
[61] Wark v The State of Western Australia [2023] WASCA 66 [636] ‑ [640].

Appeal against sentence - disposition

The maximum penalties for the offences committed and the corresponding number of counts are as follows:
(1)Sexual penetration without consent: 14 years' imprisonment[62] (66 counts).
(2)Indecent assault: 5 years' imprisonment[63] (10 counts).
(3)Sexual coercion: 14 years' imprisonment[64] (seven counts).
(4)Aggravated indecent assault: 7 years' imprisonment[65] (two counts).
(5)Aggravated sexual coercion: 20 years' imprisonment[66] (one count).
(6)Aggravated sexual penetration without consent: 20 years' imprisonment[67] (one count).
[62] Criminal Code, s 325(1).
[63] Criminal Code, s 323.
[64] Criminal Code, s 327(1).
[65] Criminal Code, s 324(1).
[66] Criminal Code, s 328(1).
[67] Criminal Code, s 326(1).
The total effective sentence of 30 years' imprisonment was comprised of cumulative sentences imposed on only six of the 87 counts. Those counts were counts 8, 11, 42, 66, 71 and 74. Counts 71 and 74 related to the same victim. The sentences on all of those counts except count 42 were significantly reduced by the sentencing judge for totality reasons. Thus, it is apparent that, although the total sentence is long, it incorporated very significant allowances for totality. These included reducing individual sentences and making the majority of the sentences wholly concurrent. Cumulative sentences were imposed in respect of only five of the 13 victims.[68] From this perspective it is difficult to see how the sentence could have been further reduced without failing to be an adequate reflection of the overall criminality.
[68] ts 2101 - 2104.
The second limb of the totality principle does not operate at the expense of the first. A total effective sentence must still be proportionate to the overall criminality of the appellant's offending. Moreover, the second limb of the totality principle is not an absolute rule. If a sentence is crushing in the relevant sense, that outcome may permit a reduction in the total sentence, but it does not require one.
The first limb of the totality principle is founded on proportionality. The second limb is founded on mercy. Where the only complaint is that the second limb has been infringed the relevant questions are whether the total sentence is crushing in the relevant sense and whether, if so, it has been established that the learned sentencing judge erred by not reducing the sentence for that reason. It is not enough to establish that it was open to the sentencing judge to exercise mercy. It must be established that he was manifestly in error not to do so and that the resulting sentence was plainly unreasonable or unjust.
Because every exercise of mercy will depend on the individual facts of the case, little is to be gained by an examination of other cases. Indeed, the parties to this appeal do not seek to support their submissions by reference to other cases, presumably for that reason. There have been cases where an appeal based on the second limb of the totality principle has been successful. In general, this has been where the offender is already elderly or infirm with a limited life expectancy. In such cases the offender will almost certainly die in prison unless the sentence is reduced. That is not this case. There is no reason to believe that the appellant will die before his sentence is complete. For that reason, it could be argued that the sentence in this case is not crushing in the relevant sense.
However, even if the sentence is crushing in the relevant sense there remains the question of whether error has been established. In considering whether there was some proper foundation for an exercise of mercy in this case it is relevant to take into account the nature and circumstances of the offences, as well as the personal circumstances of the appellant.
The appellant did not plead guilty, showed no remorse, had made no steps towards rehabilitation at the time of sentencing and had no physical or mental health issues. Any prediction as to what the appellant's quality of life may or not be upon his release is speculative. There is nothing in the appellant's present circumstances, such as ill health, that would indicate that he has a limited lifespan or would have a poor quality of life when he is 80 or 82. There is no reason to suppose that he will not live to such an age. There was nothing in this case that would excite considerations of mercy.
The suggestion that the appellant will serve 'the prime years' of his life in prison is open to argument. For any offender a long sentence will consume a significant portion of their life, and to refer to some parts of a person's life as more significant than others is largely self‑serving. In any event, it cannot be ignored that the appellant continued his offending over a 12‑year period and much of that offending was undetected for many years because of the effects of the stupefying drugs that he used on the victims. He enjoyed undeserved liberty during those years, and any complaint that an otherwise appropriate sentence will consume much of his remaining life deserves little sympathy.
The second limb of the totality principle also recognises that there may be public interest benefits in not imposing a crushing sentence. A sentence that crushes expectations of a useful life beyond the sentence would disincentivise any efforts on the part of the offender towards future rehabilitation. It may also have the effect of making the offender a more difficult management prospect because that person would be deprived of any hope of a life beyond prison.
Having regard to those considerations, there may nonetheless be cases where even though the total effective sentence could be said to have a crushing effect, it is appropriate. This is such a case. The number of offences, the nature of the offences, the number of victims and the length of time over which the offending continued places this total offending into a category of extraordinary seriousness. Indeed, the offending in this case was of such seriousness that the appellant has forfeited any right to expect that he will be released at an age where he could enjoy any significant life after prison.
It has not been established that the total effective sentence was plainly unreasonable or unjust. Implied error on the part of the sentencing judge has not been shown.
We would grant leave to appeal but dismiss the appeal against sentence.

Orders

We would make the following orders:
(a)In the sentence appeal (CACR 126 of 2022):
1.Leave to appeal is granted.
2.The application to adduce additional evidence is refused.
3.The appeal is dismissed.
(b)In the conviction appeal (CACR 127 of 2022):
1.Leave to appeal on grounds 1 and 2 is granted.
2.The appeal is dismissed.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
ID
Research Associate to the Hon Justice Hall
6 NOVEMBER 2023