Munmurrie v The State of Western Australia - [2013] WASCA 167

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE COURT OF APPEAL (WA)

CITATION: MUNMURRIE -v- THE STATE OF WESTERN AUSTRALIA [2013] WASCA 167

CORAM: BUSS JA
MAZZA JA
HALL J

HEARD: 12 JUNE 2013

DELIVERED : 25 JULY 2013

FILE NO/S: CACR 267 of 2012
CACR 268 of 2012

BETWEEN: MICHAEL PATRICK MUNMURRIE
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent

ON APPEAL FROM:
Jurisdiction              :  DISTRICT COURT OF WESTERN AUSTRALIA
Coram  :STEVENSON DCJ
File No  :IND KAL 5 of 2012

Catchwords:

Criminal law - Appeal against conviction - Sexual penetration without consent - Whether the trial judge erred in refusing to leave to the jury the defence under s 24 of the Criminal Code (WA)

Criminal law - Appeal against sentence - One count of attempted sexual penetration without consent and one count of sexual penetration without consent - Total effective sentence of 4 years 3 months' immediate imprisonment - Appellant convicted after trial - Mitigating factors confined to the appellant's youth and severely deprived background - Totality principle

Legislation:

Criminal Code (WA), s 24, s 319(1), s 325, s 326, s 552

Result:

CACR 267 of 2012
Application for an extension of time dismissed
Appeal dismissed

CACR 268 of 2012
Application for an extension of time dismissed
Appeal dismissed

Category: B

Representation:

Counsel:

Appellant: Ms H E Prince
Respondent: No appearance

Solicitors:

Appellant: Barone Criminal Lawyers Pty Ltd
Respondent: Director of Public Prosecutions (WA)

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

Ainsworth v D (a child) (1992) 7 WAR 102
Aubertin v The State of Western Australia [2006] WASCA 229; (2006) 33 WAR 87
Braysich v The Queen [2011] HCA 14; (2011) 243 CLR 434
Narkle v The State of Western Australia [2011] WASCA 160
The State of Western Australia v Bropho [2013] WASCA 44
Ugle v The State of Western Australia [2012] WASCA 104
WCW v The State of Western Australia [2008] WASCA 232; (2008) 191 A Crim R 22

BUSS JA: The appellant has applied for extensions of time to appeal against conviction and sentence.
He was convicted, after a trial in the District Court before Stevenson DCJ and a jury, on two counts in an indictment.
Count 1 alleged that on 25 August 2011 the appellant attempted to sexually penetrate the complainant without consent, by attempting to penetrate her mouth with his penis, contrary to s 325 read with s 552 of the Criminal Code (WA) (the Code).
Count 2 alleged that, on or about the same date as in count 1, the appellant sexually penetrated the same complainant without her consent, by penetrating her vagina with his penis, contrary to s 326 of the Code. Count 2 also alleged that, immediately before the commission of the offence, the appellant did bodily harm to the complainant. See par (a)(iii) of the definition of 'circumstances of aggravation' in s 319(1) of the Code.
The trial judge imposed individual terms of immediate imprisonment of 2 years 6 months for count 1 and 4 years 3 months for count 2. He ordered that the sentences be served concurrently. The total effective sentence was therefore 4 years 3 months' immediate imprisonment. The sentences were backdated to commence on 20 December 2011. A parole eligibility order was made.
I will consider the merits of the proposed grounds of appeal before deciding whether extensions of time should be granted.

Overview of the State's case at trial

The State's case at trial was, in summary, as follows.
When the offending occurred the complainant was aged 34 and the appellant was 18. She was 160 cm tall and of medium build and he was 170 cm tall and of muscular build.
Between 10.15 pm on 25 August 2011 and 12.15 am on 26 August 2011, the appellant was with a group of other people in a Western Australian country town. They had gathered in a street.
The complainant walked alone on the opposite side of the road.
The appellant approached the complainant. He began a conversation with her. He requested sex and rubbed his erect penis under his shorts. The complainant told the appellant that she did not want to have sex with him. His reply was to the effect that he wanted sex and she would give it to him.
The appellant stood in front of the complainant and prevented her from walking away. He grabbed her jacket and attempted to drag her into a laneway. The complainant resisted. She managed to escape the appellant's grasp and ran along the street. She then hid in some bushes near vacant land.
However, the appellant found the complainant. He grabbed her hair and left arm, and dragged her towards the fence of a house in the street. The complainant shouted at the appellant and told him to let her go.
The appellant continued to accost the complainant for sex and she continued to reject his advances. He then pulled down his pants, removed his erect penis and attempted to force the complainant to perform oral sex on him. She managed to avoid the attempted oral penetration.
The complainant, with a view to escaping, told the appellant that she lived nearby. They walked towards her home. She hoped that some of her family members, who ordinarily resided there, would be at home and able to help her.
Upon arrival, no one was there. The complainant told the appellant to wait while she obtained her keys from the gas meter. She hoped to be able to get inside and lock the appellant out. However, after the appellant retrieved the keys and opened the door, the appellant shoved her aside and entered the premises.
Once inside, the appellant grabbed the complainant's hair, ordered her into her bedroom, and shut and locked the bedroom door. In an attempt to deflect the appellant, the complainant mentioned that she had some cannabis. They sat down and smoked it together. The appellant then turned off the light and demanded sex. He grabbed her hair and removed her jeans and underpants. When the complainant attempted to resist, the appellant punched her arm. He pushed her backwards onto the bed and kneed her in the leg. Despite the complainant's resistance, the appellant physically subdued her and had intercourse for several minutes before ejaculating in her vagina.
As the appellant got up and prepared to leave, he threatened to assault the complainant if she told the police or anyone else what had happened.
The commission of the offences caused the complainant to suffer an abrasion to her left knee. She also sustained bruising on the back of her right leg, around her right knee, inside her left leg and on her left arm.

Overview of the appellant's case at trial

The appellant gave sworn evidence in his defence at trial. His case was, in summary, as follows.
The appellant's evidence and that of another defence witness, Tommy Fraser, was that the complainant had approached the appellant and a friend, where they had gathered in the street, and asked for group sex. The appellant declined but he went with the complainant to her home because she offered to share some cannabis with him. She invited him into her bedroom where they smoked cannabis. The complainant then initiated consensual sex. Afterwards, the complainant had said 'thank you' to him.
The appellant admitted in evidence that he had lied to the police in a video recorded interview when he had denied knowing the complainant or having been to her house or having had sex with her. He explained that it was 'shameful' for him to have had sex with a much older woman.

Appeal against conviction: the ground of appeal

The sole ground of appeal against conviction alleges that the trial judge erred in law in that he refused to leave to the jury the defence of honest and reasonable but mistaken belief that the complainant had consented to having the sexual intercourse alleged in count 2.
The appellant does not challenge his conviction on count 1.

Appeal against conviction: the trial judge's reasons for refusing to leave the defence

The trial judge rejected defence counsel's submission that he should direct the jury on the defence of honest and reasonable but mistaken belief that the complainant had consented because, in his Honour's view, there was no evidentiary basis for directing the jury on s 24 of the Code.

Appeal against conviction: the appellant's submissions

Counsel for the appellant submitted that the defence under s 24 should have been left to the jury because:
(a)the appellant was aged 18 and immature;
(b)the appellant and the complainant went to her home;
(c)they smoked cannabis together at the home; and
(d)according to the appellant, the complainant had said, 'thank you', after they had had sex (appeal ts 3 ‑ 4).
Counsel made the following argument in support of the ground of appeal:
[T]he way we say that the appeal has some merit is on this basis: that whilst initially there might have been an accosting going on, which was unwelcome and which was clearly without consent, we say that there could be a change thereafter, once she invites him home, so that whilst he might have been accosting her … or assaulting her, in fact, or attempting to sexually penetrate her without consent; that once she then invited him to her home to share some cannabis, in his mind, whatever his conduct was before, the position changed so that he might accept, 'Well, while she didn't want it then, she is now in a position where she is inviting me to her home to have some cannabis,' and therefore, we say, at that point there is a basis for the honest belief (appeal ts 3).
Counsel for the appellant added that the matters on which she relied were also an adequate evidentiary basis for any honest belief being reasonable (appeal ts 3).

Appeal against conviction: the merits of the ground of appeal

A defence under s 24 of the Code, in the context of an offence alleging sexual penetration or an indecent act, without consent, will not arise for determination unless:
(a)there was, in fact, no consent; and
(b)there is some evidence, fit for the tribunal of fact's consideration, that at the material time the accused had an honest and reasonable, but mistaken, belief that the complainant consented to the sexual penetration or indecent act.
See Narkle v The State of Western Australia [2011] WASCA 160 [39] (Buss JA, McLure P & Hall J agreeing); WCW v The State of Western Australia [2008] WASCA 232; (2008) 191 A Crim R 22 [7] (Buss JA) and the cases there cited.
In Aubertin v The State of Western Australia [2006] WASCA 229; (2006) 33 WAR 87, McLure JA (Roberts‑Smith & Buss JJA agreeing) explained the elements of the defence under s 24. As to the element that the accused's belief must be reasonable (which she described as a 'mixed element'), her Honour said:
The mixed element is not wholly objective; reasonableness is not to be adjudged by the standard of the hypothetical ordinary or reasonable person. The mixed element is a combination of subjective and objective aspects. The requirement that the belief be reasonable imports an objective standard. The subjective aspect is that the reasonableness is to be judged by reference to the personal attributes and characteristics of the accused that are capable of affecting his or her appreciation or perception of the circumstances in which he or she found himself or herself. However, the ambit of what constitutes the personal attributes and circumstances of a particular accused has not to my knowledge been identified or exhaustively enumerated. It covers matters over which an accused has no control such as age (maturity), gender, ethnicity, as well as physical, intellectual and other disabilities. This list does not purport to be exhaustive.
However, I am persuaded by the line of authorities that exclude intoxication, whether by reason of alcohol or drugs, as a relevant factor in supporting (rather than negativing) reasonableness under s 24 of the Code. There are obvious public policy considerations supporting that outcome. Moreover, the notions of reasonableness and alcohol or drug-induced impairment are in my view contradictory …
…
Further, a person's values, whether they be informed by cultural, religious or other influences, are not part of a person's characteristics or attributes for the purpose of assessing the reasonableness of an accused's belief … Values do not impact on the capacity to perceive or appreciate primary objective facts or the capacity to process that information. In any event, reasonableness must be judged in the light of generally accepted community standards and attitudes [43] ‑ [44], [46].
If it is necessary for a trial judge to consider, at the close of the evidence in a criminal trial, whether a particular defence should be left to the jury, the relevant question, in a case where (as with s 24 of the Code) the legal burden is on the State and the evidential burden is on the accused, will be: is there evidence which, taken at its highest in favour of the accused, could lead a reasonable jury, properly instructed, to have a reasonable doubt that each of the elements of the defence or an element of the defence, as the particular case may require, had been negatived? See Braysich v The Queen [2011] HCA 14; (2011) 243 CLR 434 [17], [36] (French CJ, Crennan & Kiefel JJ).
So, a trial judge should leave the defence under s 24 to the jury if, at the close of the evidence, there is evidence which, taken at its highest in favour of the accused, could lead a reasonable jury, properly instructed, to have a reasonable doubt as to whether the State had negatived the defence.
In the present case, the jury, by its verdict, was satisfied beyond reasonable doubt that the complainant did not, in fact, consent to having sex with the appellant as alleged in count 2.
In my opinion, when the whole of the evidence adduced at the trial (in particular, the evidence given by the appellant and the complainant) is examined, it is readily apparent that there was no evidence, either direct or circumstantial, that was capable of satisfying the appellant's evidential onus in relation to his having had a reasonable, but honest and mistaken, belief as to consent.
The complainant's evidence‑in‑chief about the events (including the offence in count 1) before they arrived at her home was, relevantly, as follows:
Can you tell us what happened after he tried to pull you to the ground?‑‑‑When he was trying to pull me down, he was pulling me down by the hair. I noticed he put the can of Jim Beam on the ground. He sat down. He still had my hair. I was trying to get his fingers out of my hair, I was trying to get his hand out of my hair. He was trying to pull me down but I was pulling myself up. As I was trying to pull myself up, he was sitting on the ground, I noticed that he pulled his penis out of his shorts as he was holding me by my hair, pulling me down. He pulled it out. I seen it. I seen it was sticking up, and he was telling me to suck him off, and I said no, that I didn't wanted to, and he got wild and he pulled me down towards his penis halfway and I sort of fell down on the ground, on my knee; my left-side knee hit the ground but my right foot was still, like I was sort of still standing on my right foot and my left knee was on the ground. My knee hit the ground and I felt a lot of pain around my knee and up my leg. It really hurt. He was trying to pull my head onto his penis …
…
[W]as he saying anything when he did this?---I was telling him to stop it, that I didn't want to. He was saying that he wanted to, he wanted it.
When he rushed at you did he say anything?---He was saying just do it then he'll let me go home. I said that I didn't want to, I didn't want to do anything.
You said he picked up the Jim Beam can again. What did he do with that?---He picked the can up. He rushed towards me. When he got to me he was like scruffing me up and scruffing my clothes, scruffing my shirt, pulling my clothes. He was pulling my hair and telling me to just do it with him and I said no I didn't want to. I said that I didn't have to and he kept saying, 'Yes, you are. You're giving me a munge [that is, sex]. You're giving me a munge.' I said, 'No,' and I've got wild and I've shouted at him. I swore at him and he got wild and he tried to hit me in the head with a can of Jim Beam.
…
What did you think was going to happen to you?‑‑‑At that time I was frightened, scared. I thought I was going to get flogged because he was saying ‑ he was calling me a cunt. He was saying, 'This cunt gonna get a hiding'. I got frightened and I thought I was going to get flogged (ts 49 ‑ 50).
The complainant's evidence‑in‑chief as to what occurred at her home was, relevantly, as follows:
As I tried to feel for the door handle and the light switch he, he grabbed me. He grabbed my trousers, pulled my trousers down, pulled my knickers down at the same time as my trousers. So I bent down, tried to pull my trousers up. As I was trying to bend down to pull my trousers up, he was pushing me back, pushing me back.
…
I fell back on the bed. When I fell back on the bed I tried to reach down for my trousers. He got on the bed, got on me. He was trying to like open my legs, trying to get between my legs, and I was trying to hold my legs together …
…
I was telling him to stop it. I was saying, 'Stop it. I didn't wanted to.' He knew that I didn't wanted to. I told him that I didn't wanted to. I tried to tell him to stop it. I tried to tell him to get off. He was saying, he was saying, 'I just want to munge, you're going to give it to me.' He was saying, 'Just give it to me.'
…
I kept trying to push him off, push him away. I kept trying to hold him up. I kept trying to hold him away. I was telling him that I hated him. I said, 'I hate you.' I said, 'You're a dog.' I said, 'You want to call me a dog, you're a dog.' My legs were sore and tired. My arms was getting tired from keep trying to hold him up, hold him away, push him away … He told me to grab [his penis] and put it in and I said, 'No.' I said I didn't want to touch it. I said 'You know that I didn't want to do it. You know that I don't want to do it. Why would I want to touch it for? I don't want to touch it,' so he kept pushing his penis towards my vagina. He managed to push it in.
…
While he was doing that he told me to put my arms around him. He said, 'Put your arms around me.' I said, 'No,' and he said … 'Make love to me.' I said, 'No.' … It was hurting. I was crying. I just wanted him to stop. He kept doing it … He got up, he turned the light on. I was still laying on the bed in pain, upset. I was upset and in pain, just laying on the bed. When he turned the light on he was standing up, looking at me. He said to me, he said, 'That felt good, unna?'
…
I said not for me it didn't. And then he said to me, he said, 'Thank you.' I said to him, I said, 'Fuck you.' Then he was standing at the door, he stood at the door. He said to me, he said, he said, 'If you go and tell anyone, or if you go and tell the police that I raped you, I'm going to come back here and I'm going to bash you, because now I know where you live.' Then he walked away (ts 71 ‑ 75).
The complainant did not, in cross‑examination, deviate materially, in any relevant respect, from her evidence‑in‑chief.
The appellant denied in his evidence that he had attempted to sexually penetrate the complainant before they arrived at her home. He said that nothing happened on the way to her home and they did not stop any stage (ts 158).
The appellant gave this account of events at the complainant's home after they had smoked cannabis together:
And then what happened?‑‑‑Then she jumped on top of me, but I said, 'No, hang on. You're hurting me, you know. Fuck, you're hurting my' ‑ didn't know how to do it. So I said, 'Yeah, just move.' So she took it ‑ she took her pants off because I said, 'I'll get on top.' Yeah, she took her pants off and knickers off …
And then what happened?‑‑‑Yeah, just jumped on top of her.
…
So did you have sex with [the complainant]?‑‑‑Yeah, course I had sex with [her].
And you were on top of her. Is that right?‑‑‑Yeah. Yeah, that's right.
What happened after you had had sex with [the complainant]?‑‑‑I jumped up… and walked off …
Was she saying that she hadn't enjoyed it or that you had done something wrong or anything like that?‑‑‑No. She never said anything like that. She said, 'Oh, that's ‑ thank you for that there. That's good.' She said something like that, yeah.
…
Her evidence was that you grabbed her by the hair and pulled her before you had sex. Did you grab her by the hair at any stage?‑‑‑No.
No?‑‑‑No.
She said that you grabbed at her jeans and underpants and pulled them down. Did you do that?‑‑‑No.
How did her pants get off?‑‑‑She took them off.
She says that she was trying to stop you and you punched her, struck her. Is that right?‑‑‑Nuh, not right.
At any stage did you strike her?‑‑‑No. Never
Did you force her?‑‑‑No. Didn't force her at all.
Was she trying to stop you by closing her legs together at any stage?‑‑‑No.
So when you had sex with her what was she doing?‑‑‑She just spread her legs open. Before I pulled my pants down she was playing with her pussy, eh. Playing with it, rubbing herself up, getting it wet and I jumped on top.
At any stage while you were having sex did she tell you to stop it?‑‑‑No.
At any stage before you had sex did she tell you to stop it?‑‑‑No.
Did you ask her to touch your penis at all at any stage?‑‑‑No. She grabbed it. She just grabbed it.
…
Where was she when you walked off or left the house?‑‑‑She was still there.
Where?‑‑‑At her house.
Where?‑‑‑In the lounge room.
In the lounge room?‑‑‑Yeah.
So she got up from the bed?‑‑‑Yeah, she got up and chucked her clothes on. Yeah, and she walked me to the front door.
All right?‑‑‑And she said, 'See you next week' or some shit. So I said, 'Fair enough, catch you later.' Took off, yeah.
[The complainant], she said that you then, before you left, said that if she told anybody about this you were going to flog her. Did you make any sort of threat like that?‑‑‑No. No way. No.
Any sort of threat at all?‑‑‑No. Not a threat at all (ts 160, 166 ‑ 169).

In my opinion, the four matters relied on by counsel for the appellant, namely:
(a)the appellant was aged 18 and immature;
(b)the appellant and the complainant went to her home;
(c)they smoked cannabis together at the home; and
(d)according to the appellant, the complainant had said, 'thank you', after they had had sex,
have been taken out of context.
At the trial, it was common cause that the appellant and the complainant were unknown to each other before the night in question. Also, it was common cause that no‑one, apart from the appellant and the complainant, was at the complainant's home when sexual intercourse occurred.
It is plain, on the evidence as a whole, that:
(a)On the appellant's case, the complainant gave her express consent to sex with the appellant; indeed, on his evidence, the complainant initiated the sexual interaction in addition to being a willing and enthusiastic participant.
(b)On the State's case, the complainant expressly refused her consent to sex with the appellant and this refusal was, on numerous occasions, unequivocally manifested in words and by actions, before and during the appellant's brutal and relentless assault upon her.
So, there was a stark contrast between the appellant's evidence as to the complainant having given her express consent, on the one hand, and the complainant's evidence as to her having expressly refused consent, on the other.
If a tribunal of fact were to have accepted the appellant's account of events at the complainant's home after they had smoked cannabis together (in particular, his account of the facts and circumstances pertaining to the sexual intercourse), or if the tribunal of fact thought there was a reasonable possibility that his account might be true, the State would have failed to have proved beyond reasonable doubt that the complainant did not, in fact, consent to having sex.
In my opinion, it is not arguable that, on the state of the evidence at the close of the appellant's case, there was evidence, taken at its highest in favour of the appellant, on the basis of which the appellant may have had a reasonable, but honest and mistaken, belief as to consent.
The evidence, taken at its highest in favour of the appellant, could not arguably have led a reasonable tribunal of fact, properly instructed, to have a reasonable doubt that the State had negatived the reasonableness of any honest but mistaken belief as to consent which the appellant may have had.
The trial judge did not err in rejecting defence counsel's submission that he should direct the jury on s 24. There was no evidentiary basis for leaving this defence.
The ground of appeal against conviction has no reasonable prospect of success.

Appeal against conviction: conclusion

I would refuse to grant an extension of time to appeal against conviction.

Appeal against sentence: the ground of appeal

The sole ground of appeal against sentence reads:
The learned sentencing Judge erred by imposing a sentence that was manifestly excessive in all of the circumstances, in particular given the Appellant's youth and antecedents and the circumstances of the offending.
Counsel for the appellant said, in her oral submissions, that the point sought to be raised in the ground of appeal was that the total effective sentence of 4 years 3 months' imprisonment infringed the second limb of the totality principle; that is, the total effective sentence was 'crushing on a young man of this age' (appeal ts 9).
Counsel informed the court that the allegation raised in the ground of appeal against sentence was 'confined to an allegation of an infringement of the second limb of the totality principle' (appeal ts 9 ‑ 10).

Appeal against sentence: the appellant's submissions

Counsel for the appellant emphasised that the appellant was only 18 years 7 months when he committed the offences. He had an extremely deprived background and a lengthy criminal record as a juvenile. The appellant is immature. His extended family are willing to provide him with employment skills and accommodation on his release from custody.
According to counsel, the total effective sentence was 'crushing' for a young man of the appellant's age.

Appeal against sentence: its merits

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 or is yet to serve a term of imprisonment), viewed in their entirety, 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 second limb of the 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. These propositions are well-established by the case law.
The maximum penalty for count 1, being attempted sexual penetration without consent, contrary to s 325 read with s 552 of the Code, is 7 years' imprisonment.
The maximum penalty for count 2, being aggravated sexual penetration without consent, contrary to s 326 of the Code, is 20 years' imprisonment.
As the trial judge noted in his sentencing remarks, there were a number of aggravating factors in relation to the appellant's offending. First, the offences occurred late at night while the complainant was walking alone to her home. Secondly, there was a degree of violence and physical force used by the appellant in order to commit the offences. The complainant suffered substantial bruising to various parts of her body. Thirdly, the appellant threatened to 'flog' the complainant if she attempted to avoid the commission of the offences or if she reported the offences to the authorities. Fourthly, the appellant reinforced his threats by informing the complainant that he had recently been released from prison. Fifthly, when he committed the offences the appellant was under the influence of alcohol and his behaviour would therefore have been unpredictable. The fear experienced by the complainant would have been exacerbated (ts 309 ‑ 310).
The appellant was born on 22 January 1993. He was 18 years 7 months when he committed the offences and 19 at the time of sentencing.
The appellant had a dysfunctional upbringing. He did not attend school and is unable to read or write. He takes illicit drugs and abuses alcohol. The offences in question were his first offences as an adult. However, as a juvenile he spent significant periods in detention. His criminal record occupies 17 pages. It is unnecessary to summarise the prior convictions. It is sufficient to note that they include armed robbery, being armed or pretending to be armed in a way that may cause fear, aggravated burglary (multiple offences), stealing (multiple offences), possessing a prohibited drug (multiple offences), assaulting a public officer and breach of protective bail conditions (multiple offences).
The complainant was traumatised by the offending. The appellant did not evince any remorse and he did not have the mitigation that a plea of guilty would have brought. The only mitigating factors were his youth and severely deprived background.
Ordinarily, an offender's youth is a significant mitigating factor. This reflects the view that the interests of the community are best served by determined efforts to rehabilitate a youthful offender (including a very young adult). A very young adult may be impressionable, impulsive and less cognisant of the seriousness of particular offending than an older person. Also, a lengthy term of imprisonment will ordinarily be a heavier burden on a very young adult. However, youth must be weighed against the facts and circumstances of the offences which have been committed. A substantial custodial sentence may be required in an appropriate case, despite the offender's youth, in order properly to reflect the need to protect the public or a section of it, and the need for personal and general deterrence. See Ainsworth v D (a child) (1992) 7 WAR 102, 117 (Malcolm CJ, Franklyn & White JJ agreeing); Ugle v The State of Western Australia [2012] WASCA 104 [71] (Buss JA, Pullin JA agreeing); The State of Western Australia v Bropho [2013] WASCA 44 [45] (Buss JA, McLure P & Mazza JA agreeing).

In my opinion, it is not reasonably arguable that the appellant has been left without a reasonable prospect of a useful life after his release from custody. The total effective sentence of 4 years 3 months' imprisonment was backdated to commence on 20 December 2011, being the date on which he was taken into custody for these offences. Even if he is not released on parole, he will only be 23 when he completes the sentences.
Although counsel for the appellant did not rely on it, I record my view that it is not reasonably arguable that the total effective sentence of 4 years 3 months' imprisonment infringed the first limb of the totality principle.
The appellant's offending was very serious. As I have mentioned, the matters of mitigation were confined to his youth and severely deprived background. The criminal justice system made numerous significant and unsuccessful efforts to rehabilitate the appellant as a juvenile. The fact that the appellant has a prior criminal record and that previous sentences have not achieved the purposes for which they were imposed are not, of course, aggravating factors. However, they form a proper basis, together with the facts and circumstances of the current offending, for deciding that he could not be afforded any greater leniency in the sentencing disposition for the offences in question. Personal and general deterrence were important sentencing considerations. The total effective sentence was a just and appropriate measure of his overall criminality, after having regard to the maximum penalties, the circumstances of the offending, the vulnerability of the complainant, the standards of sentencing customarily observed, all aggravating features and all mitigating features.
The ground of appeal against sentence has no reasonable prospect of success.

Appeal against sentence: conclusion

I would refuse to grant an extension of time to appeal against sentence.
MAZZA JA: I agree with Buss JA.
HALL J: I agree with Buss JA.