Pollock v The State of Western Australia
[2009] WASCA 121
•14 JULY 2009
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: POLLOCK -v- THE STATE OF WESTERN AUSTRALIA [2009] WASCA 121
CORAM: OWEN JA
WHEELER JA
MILLER JA
HEARD: 6 APRIL 2009
DELIVERED : 14 JULY 2009
FILE NO/S: CACR 142 of 2008
BETWEEN: JOSHUA RICHARD POLLOCK
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram :O'SULLIVAN DCJ
File No :IND 1267 of 2007
Catchwords:
Criminal law - Sentence - Multiple offences - Nine counts - Aggravated burglary, deprivation of liberty (2), assault occasioning bodily harm (2), sexual penetration without consent, grievous bodily harm, stealing (2) - Aggregate sentence 14 years - Whether in breach of totality principle
Legislation:
Nil
Result:
Appeal dismissed
Category: D
Representation:
Counsel:
Appellant: Mr P W Catalano
Respondent: Mr D Dempster
Solicitors:
Appellant: Henry Sklarz
Respondent: Director of Public Prosecutions (WA)
Case(s) referred to in judgment(s):
Britten v The Queen (Unreported, WASCA, Library No 940079, 21 February 1994)
Cameron v The Queen [2002] HCA 6; (2002) 209 CLR 339
Collins v The Queen [2002] WASCA 242
Damiani v The State of Western Australia [2006] WASCA 47; (2006) 165 A Crim R 358
Jarvis v The Queen (1993) 20 WAR 201
Lawrie v The State of Western Australia [2009] WASCA 45
Postiglione v The Queen [1997] HCA 26; (1997) 189 CLR 295
R v Ogilvie (Unreported, WASCA, Library No 960643, 8 November 1996)
R v Shaharuddin [1999] WASCA 229
Roffey v The State of Western Australia [2007] WASCA 246
Schriever v The State of Western Australia [2008] WASCA 133
The State of Western Australia v Amoore [2008] WASCA 65; (2008) 182 A Crim R 165
The State of Western Australia v Miller [2005] WASCA 53; (2005) 30 WAR 38
Ugle v The State of Western Australia [2007] WASCA 199
Vilai v The Queen [1999] WASCA 275
Walgar v The State of Western Australia [2007] WASCA 241
OWEN JA: Part way through his trial in the District Court the appellant entered a guilty plea to a number of serious offences, most of a violent nature and one involving a sexual assault, committed in the course of a home invasion. He was sentenced to a total term of 14 years' imprisonment. The appellant has been granted leave to appeal and this is the substantive appeal against the sentence.
Background
In the early hours of the morning of 25 February 2007 the appellant and a co‑offender broke into the home of the male and female complainant. It was a home they occupied with two young children. The appellant lived in a neighbouring property. In the course of the home invasion, the male and female complainant were tied up and physically assaulted. The male complainant's little finger was severed and the female complainant was sexually penetrated with an unknown object. Before leaving the complainants' house, the appellant and his co‑offender stole some property belonging to the complainants. It appears that the appellant and his co‑offender carried out the attack in order to get revenge on the complainants, who had earlier in the evening had an altercation with one of the appellant's friends.
The appellant was charged with 10 offences, all said to have been committed on 25 February 2007. I propose to summarise the effect of the indictment and to list the section of the Criminal Code under which the charge was preferred and the maximum penalty prescribed by the legislature for each offence.
1.The appellant and the co‑offender entered or were in the place of the male complainant without his consent, with intent to commit an offence therein. They did so in circumstances of aggravation; namely, they were armed with offensive weapons (a stick, a metal pole and a knife); they were in company with each other; they did bodily harm to the complainants; they knew or ought to have known a person was in the place; and the place was ordinarily used for human habitation (Criminal Code s 401(1), 20 years).
2.The appellant and the co‑offender unlawfully detained the female complainant (Criminal Code s 333, 10 years).
3.The appellant and the co-offender unlawfully assaulted the female complainant and thereby did her bodily harm (Criminal Code s 317(1), 5 years).
4.The appellant sexually penetrated the female complainant without her consent by penetrating her vagina with his penis (Criminal Code s 325, 14 years).
5.The appellant sexually penetrated the female complainant without her consent by penetrating her vagina with an unknown object (Criminal Code s 325, 14 years).
6.The appellant and the co‑offender unlawfully detained the male complainant (Criminal Code s 333, 10 years).
7.The appellant and the co‑offender, with the intent to maim, disfigure, disable or do grievous bodily harm to the male complainant, unlawfully did grievous bodily harm to the male complainant (Criminal Code s 294(1), 20 years).
8.The appellant and the co‑offender unlawfully assaulted the male complainant and thereby did him bodily harm (Criminal Code s 317(1), 5 years).
9.The appellant and the co‑offender stole personal effects the property of the female complainant (Criminal Code s 378, 7 years).
10.The appellant and the co‑offender stole a mobile phone and personal effects the property of the male complainant (Criminal Code s 378, 7 years).
The appellant pleaded not guilty and took the charges to trial. But on the second day of the trial he pleaded guilty to all the counts in the indictment except count 4 and count 7. He maintained his plea of not guilty in relation to count 4 and, in lieu of count 7, pleaded guilty to the lesser offence of causing grievous bodily harm under the Criminal Code s 297, which carries a maximum penalty of 10 years. The prosecutor accepted the pleas in full satisfaction of the indictment. It should be noted that the appellant's plea of guilty to count 7 was proffered and accepted on the basis that the appellant had not physically inflicted the injury on the male complainant. However, he knew either that grievous bodily harm would be caused or that it was a probable consequence of what was to occur and was criminally responsible accordingly. The jury was discharged and the matter proceeded to sentencing. The following sentences were imposed:
(a)Count 1: 7 years' imprisonment;
(b)Count 2: 3 years' imprisonment;
(c)Count 3: 2 years and 8 months' imprisonment;
(d)Count 5: 8 years' imprisonment;
(e)Count 6: 3 years' imprisonment;
(f)Count 7: 3 years' imprisonment;
(g)Count 8: 2 years and 8 months' imprisonment;
(h)Count 9: 2 years' imprisonment; and
(i)Count 10: 2 years' imprisonment.
The sentencing judge ordered that the terms imposed for counts 2, 5 and 7 be served cumulatively upon each other, but concurrently with all the other terms. This yielded a total effective sentence of 14 years' imprisonment. The sentence was backdated to 27 February 2007, being the date the appellant was taken into custody. The appellant was made eligible for parole on each of the sentences.
The facts
On the evening of 24 February 2007 the complainants planned to go out to a party. Before going out, they invited the appellant over for a drink. The appellant and the complainants had several drinks and later in the evening the appellant accompanied the female complainant to the party. The male complainant did not go because he felt unwell.
It seems that at the party the female complainant met a woman, D, and the two women returned to the complainants' home. The appellant remained at the party. Some sort of altercation occurred between the male complainant, the female complainant and D, as a result of which the male complainant ejected D from his home. The complainants retired to bed. D returned to the party and complained to the appellant about her treatment at the complainants' home. The appellant and the co‑offender discussed what had happened to their friend D and decided they would go to the complainants' home and 'slap them around a bit'.
In the early morning of 25 February 2007 the complainants awoke to find two masked men in their bedroom (count 1). One of them was the appellant. The men were armed with a knife and a stick. As the male complainant woke up he was hit over the head and about the body (count 8) and his hands were tied behind his back with duct tape (count 6). In the course of the assault against him the male complainant was struck on the right hand by the co-offender and his little finger was cut off (count 7). Due to the pain, the male complainant began passing in and out of consciousness.
In the meantime the female complainant, who was still lying in bed, was struck by the appellant and co-offender about the head and body (count 3). Her hands were also tied behind her back with the tape (count 2). When she began to scream in fear and pain, the appellant held a towel against her mouth to keep her quiet. It seems that in the course of these events the female complainant recognised the appellant, notwithstanding his attempt to keep his face covered.
After the attack on her in the bedroom the female complainant was taken by the appellant to the bathroom. He placed her on the bathroom floor. She was still gagged with the towel had her arms tied behind her back. The appellant inserted an unknown object into her vagina (count 5). He then pulled her into an upright position so that she stood facing the mirror and told her that he loved seeing the fear in her eyes. He then pushed her into the empty bathtub and left her there.
The appellant joined the co‑offender in cleaning up some of the mess that had been made as a result of the attack against the complainants. It seems clear that the purpose of the clean-up was to destroy fingerprints or other forensic material which might have implicated them in the offending. Before leaving the house, the appellant and the co‑offender made further threats to the female complainant. They said that if she told anyone about what had happened, she would face further harm. As they left, the appellant and the co‑offender stole the male complainant's mobile phone and personal effects (count 10) and some personal effects belonging to the female complainant (count 9).
The sentencing remarks
The sentencing judge said that the attack was some sort of misguided revenge attack on the couple because the appellant felt they had mistreated D earlier that evening. His Honour noted that the appellant's judgment that night was impaired by drugs and alcohol but these circumstances provided no justification for his behaviour.
The sentencing judge referred to the presentence report, psychological report and psychiatric report. These documents (together with the plea made on his behalf) indicated that the appellant was born in Kununurra in 1977, one of four children whose parents separated when he was 12 years old. He was 29 years of age at the time of the offences. He did not receive much of an education after Year 8 but had a good employment record in the years since leaving school. He worked originally as a station hand, but more recently was employed in the concrete industry.
The appellant had started abusing drugs at an early age, smoking cannabis and drinking alcohol to excess. His drug use also included LSD and amphetamines. There was some evidence that he had been using amphetamines on the night of the offending. But there was nothing in the psychiatric report to indicate the appellant had any psychotic condition.
The appellant had a criminal record, but the record paled in comparison with the current offending. He had convictions for offences of disorderly conduct, damage to property, dishonesty and drug possession. He did not have any convictions for aggravated burglary, sexual offences or offences involving violence comparable with the violence in the current offending.
The sentencing judge then turned to consider the appellant's guilty plea and remorse. The appellant had pleaded guilty to the charges which, his Honour noted, entitled him to some credit. But the pleas, however, were entered during the trial and after the female complainant had suffered the ordeal of having to give evidence.
The sentencing judge took the view that the appellant intended to defend the charges by putting the identity of the offender in issue. When the appellant saw and heard the female complainant give evidence, it became clear that she had no trouble identifying him and he must have realised that he would probably be convicted. The decision to change the plea had to be seen in that light.
The sentencing judge expressed doubt as to the true extent of the appellant's remorse. This view was based on his very late guilty plea and reinforced by the presentence report, which indicated that the appellant failed to express any victim empathy or regret for his behaviour. The psychological report indicated that the appellant accepted minimal responsibility for the offences and that there was a serious risk of recidivism.
Finally, the sentencing judge remarked on the seriousness of the offending. The sentencing judge expressed the view that the appellant's offending was at the high end of the scale for that type of offending. The aggravated burglary charge, for example, involved six of the eight circumstances of aggravation specified in the Criminal Code.
His Honour also gave attention to the effect of the crimes on the victims. The complainants were a young couple entitled to feel safe in their own home. They were vulnerable and defenceless. The appellant was in company and the degree of violence used was significant. Although the appellant did not cut off the male complainant's finger himself, the severing of a digit was a shocking and appalling act. The degrading and humiliating treatment of the female complainant also deserved a substantial penalty.
The sentencing judge then passed sentence. His Honour considered that only an immediate term of imprisonment would be appropriate. He imposed a total effective sentence of 14 years' imprisonment. He backdated the sentence to the date the appellant was taken into custody, and made the appellant eligible for parole.
The ground of appeal
The appellant advances a single ground of appeal, namely:
The learned sentencing judge erred in failing to adequately apply the totality principle, in that the total aggregate sentence of 14 years' imprisonment is:
(a)excessive and inappropriately long, having regard to the course of criminal conduct, viewed as a whole; and
(b)is crushing upon the offender.
As can be seen from the ground, there is no challenge to any of the individual sentences imposed in respect of particular counts. The gravamen of the appellant's case is that the total sentence of 14 years infringed the totality principle.
The totality principle
The totality principle has been discussed in myriad decisions of the High Court and of this court. I need do no more than set out dicta from two of the leading cases. In Postiglione v The Queen [1997] HCA 26; (1997) 189 CLR 295, 307 - 308 McHugh J said:
The totality principle of sentencing requires a judge who is sentencing an offender for a number of offences to ensure that the aggregation of the sentences appropriate for each offence is a just and appropriate measure of the total criminality involved [See Mill v The Queen [1988] HCA 70; (1988) 166 CLR 59 at 63]. In Kelly v The Queen (1992) 33 FCR 536 at 541 O'Loughlin J, sitting in the Full Court of the Federal Court of Australia, applied the following unreported remarks of King CJ in R v Rossi Unreported; Court of Criminal Appeal of SA; 20 April 1988:
There is a principle of sentencing known as the principle of totality, which enables a court to mitigate what strict justice would otherwise indicate, where the total effect of the sentences merited by the individual crimes becomes so crushing as to call for the merciful intervention of the court by way of reducing the total effect.
In Roffey v The State of Western Australia [2007] WASCA 246 [24] ‑ [25] McLure JA described the principle as comprising two limbs:
The first limb is that the total effective sentence must bear a proper relationship to the overall criminality involved in all the offences, viewed in their entirety and having regard to the circumstances of the case, including those referable to the offender personally: Woods v The Queen (1994) 14 WAR 341.
The second limb is that the court should not impose a 'crushing' sentence. The word crushing in this context connotes the destruction of any reasonable expectation of a useful life after release: Martino v The State of Western Australia [2006] WASCA 78 [16]. An aggregate sentence may be inappropriately long under the first limb even if it cannot be described as crushing: Jarvis v The Queen (1998) [sic 1993] 20 WAR 201, 216 (Anderson J).
The appellant's ground of appeal contends that the total sentence breached both limbs.
Proper relationship with overall criminality
The appellant's primary submission is that the total sentence imposed was inappropriately long having regard to the course of the criminal conduct as a whole. This requires the court to examine the seriousness of the appellant's offending, the appellant's mitigating factors and comparative cases. Although not apparent from the ground of appeal, the appellant's submissions may also raise a question of concurrency of sentences under the one transaction principle.
Seriousness of the offending
The offences committed by the appellant were, as conceded by the appellant's counsel during the hearing, 'horrendous and deplorable'. The appellant broke into the complainants' home (in the company of another) and subjected the complainants to a terrifying ordeal. The male complainant's finger was chopped off; the female complainant was sexually assaulted. The attack was apparently motivated by revenge over the treatment by the complainants of one of the appellant's friends. By any standard, the offending was extremely serious.
There are a number of factors which lead to the conclusion that the offending involved a very high level of criminality. These include:
(a)the criminal conduct was premeditated, as indicated by the fact that the offenders donned disguises and collected weapons before entering the premises;
(b)the appellant was armed and in company;
(c)the offences occurred in the complainants' home, late at night when the complainants were asleep in bed and completely vulnerable;
(d)the complainants were tied up ‑ despite their inherent vulnerability to the armed offenders ‑ in order to allow the offenders to humiliate and perpetrate further assaults;
(e)a high level of violence was meted out to the complainants, who suffered bodily injury;
(f)the sexual penetration of the female complainant appears to have been calculated to humiliate, degrade and terrorise her;
(g)the severing of the male complainant's finger (although not actually carried out by the appellant) was a barbaric attempt to mutilate him and cause him pain;
(h)the appellant taunted the female complainant after he sexually penetrated her, saying he loved to see the fear in her eyes;
(i)the appellant helped clean up the scene in order to destroy fingerprints or other forensic evidence which might identify him; and
(j)before leaving, the appellant made threats to the female complainant that if she said anything, she would face further harm.
There is little which ameliorates the inherent seriousness of the appellant's conduct. The offending may have been motivated by a desire to visit revenge upon the complainants, whom the appellant believed had mistreated his friend. As the sentencing judge rightly noted, any interaction between the complainants and the appellant's friend provides no justification for what the appellant did.
Similarly, the fact that the appellant's judgment may have been affected by alcohol and (or) drug consumption that night does not reduce the seriousness of his offending. He was not suffering from any psychiatric illness. Self‑induced intoxication with drugs or alcohol is generally not taken to be a mitigating factor: Damiani v The State of Western Australia [2006] WASCA 47; (2006) 165 A Crim R 358.
Mitigating factors
There are few mitigating factors which fall in the appellant's favour. The appellant was 29 years old at the time of the offending and cannot claim youth as an ameliorating factor. The appellant had no psychiatric illness. Although the appellant appears to have had a somewhat troubled childhood, there is little in his background that could explain or be linked with his current offending.
There are, however, two other factors that must be taken into account. The first is the appellant's relatively minor criminal record. I say 'relatively minor' rather than 'minor' because, although the record pales against the current offending, the appellant's criminal history is hardly trivial. His criminal record includes a number of convictions for disorderly conduct and driving offences, and convictions for damage, damage by fire, stealing, assaulting a public officer, discharging a firearm to cause fear and possession of a prohibited substance. Even if the appellant had a clean criminal record, given the seriousness of the offending the appellant's antecedents would not carry great mitigatory weight. The fact that the appellant does in fact have a number of convictions can only reduce the weight of this factor further.
The second factor going towards mitigation is the appellant's guilty plea. It is well-established that a plea of guilty is a mitigating factor which entitles an offender to a discount when a sentence is being determined. The reason is that a guilty plea indicates remorse and contrition on the part of the offender, and helps to facilitate the administration of justice. The appellant did plead guilty, and he was entitled to receive a discount for that. The size of the discount, however, must reflect the circumstances in which that plea was entered.
The appellant did not plead guilty at the earliest possible opportunity, or even before trial. The appellant only pleaded guilty on the second day of his trial after the female complainant had suffered the ordeal of giving evidence. The sentencing judge (who was also the trial judge) took the view, based on the appellant's opening in the trial, that the appellant intended to put the identity of the offenders in issue. Once the appellant had heard the female complainant give evidence firmly identifying him as one of the attackers, he must have realised that this aspect of his defence was problematic. It was only at that stage that he changed his plea to guilty.
These circumstances mean that the appellant's guilty plea carries much less mitigatory weight than would otherwise be the case. The plea did not spare the expense of a trial. It did not show a willingness to facilitate the administration of justice. More significantly, it did not spare the female complainant the trauma of giving evidence of the attack, including details of the sexual assault perpetrated on her.
The lateness of the plea must also reduce its value as an indicator of contrition and remorse. The fact that the appellant was prepared to take the charges to trial ‑ and appears to have changed his mind only when the strength of the prosecution case on the identification issue became apparent ‑ hardly indicates an understanding of his offending and an acceptance of responsibility. This conclusion is supported by the presentence report. In that report, the author states that the appellant had said that he pleaded guilty to hasten legal proceedings, and had not sexually assaulted the female complainant. The appellant claimed that the female complainant had lied about being sexually assaulted because 'she wanted more criminal compensation'. These matters can hardly be described as a resounding expression of contrition and remorse.
Comparative cases
Counsel for the appellant cited a number of cases in written submissions and in oral argument in support of the proposition that the total sentence of 14 years' imprisonment was outside the appropriate sentencing range.
In R v Ogilvie (Unreported, WASCA, Library No 960643, 8 November 1996) the offender pleaded guilty to burglary, deprivation of liberty, causing grievous bodily harm with intent, and aggravated sexual penetration without consent. The offender had entered the complainant's house with the intent to steal money. When the complainant happened upon him, he apprehended her and severely punched her, kicked her and beat her head against the wall and the floor. This assault caused serious injury. He also penetrated her vagina with his finger, causing her bodily harm.
The offender was 22 years of age at the time of the attack. He pleaded guilty on the fast-track system. Following a Crown appeal, his sentence was increased from 6 years to 10 years (or 9 1/2 years taking into account time spent in custody).
In Vilai v The Queen [1999] WASCA 275 the offender pleaded guilty to deprivation of liberty and was convicted after trial by jury of aggravated sexual penetration without consent and unlawful wounding with intent to do grievous bodily harm. The offender and complainant had been in a relationship, but the complainant was trying to break it off. He went to her house to talk to her. He produced a knife and forced her to have sexual intercourse with him. When he was distracted, she attempted to throw the knife away. He recovered the knife and, while she was restrained by him, stabbed her in the chest, leg, back and right arm.
The offender had good antecedents. He had not been to prison before and, prior to this offending, had no record of violent offences. The judge accepted that, despite his plea of not guilty to two of the charges, he was remorseful. His sentence of 14 years' imprisonment was reduced on appeal to 10 years.
In Ugle v The State of Western Australia [2007] WASCA 199 the offender pleaded guilty to one count of indecent assault, three counts of sexual penetration without consent and one count of stealing while in the place of another without that person's consent. The offender had gone to the complainant's home and asked to use the toilet. He pushed his way past the complainant and then forced her into the bedroom. He sexually penetrated her several times while armed with a crochet needle. He then demanded money and hit her with an iron around the head, face and body and choked her with the cord. Before leaving, he stole some of her property including a television and electrical equipment.
The offender was 35 years old. He was a drug user who was affected by alcohol and amphetamines at the time of offending. He had a bad criminal record, but had not been convicted of any violent offences in the eight years prior to the current offending. He pleaded guilty to the offences before trial, but not before absconding twice. His sentence of 11 years and 1 month's imprisonment was not disturbed on appeal.
In Collins v The Queen [2002] WASCA 142 the offender pleaded guilty to two counts of aggravated burglary, one count of burglary, five counts of aggravated sexual penetration without consent, one count of assault occasioning bodily harm, one count of robbery and one count of assaulting a police officer. The offender forced his way into the house of the complainant and sexually penetrated her several times. When he was interrupted by the complainant's brother, the offender struck the brother and fled. The offender returned a short time later and again forced his way in. He demanded the complainant's brother's car keys and stole the man's car. When he was pursued by police he forced his way into another house and assaulted one of the officers giving chase.
The offender was 26 years old at the time of the offences. He was severely intoxicated by alcohol and was having business and relationship difficulties. He pleaded guilty at the earliest possible opportunity and showed genuine remorse. His sentence of 11 years' imprisonment was upheld on appeal.
I acknowledge that in each of these cases (other than Ugle) the sentence was imposed before the coming into operation of the Sentencing Legislation Amendment and Repeal Act 2003 (WA). Nevertheless, in my view these cases do not demonstrate that the appellant's sentence of 14 years was outside an appropriate range for offences of the type he committed. It is true that the appellant's sentence is greater than any of the sentences imposed in these cases. The relative severity of his sentence, however, merely reflects the fact that the appellant's offending was serious and the mitigating factors relatively few. There are differences between the appellant's criminal conduct and the circumstances of the other cases. They are not 'comparable' in the relevant sense.
In Ogilvie, the offender was not disguised, armed or in company. He was only 22 years of age, and so could claim youth as an ameliorating factor. He pleaded guilty on the fast track system, and spared the complainant the ordeal of giving evidence. At the time the offender was sentenced, the maximum penalty for aggravated burglary was 14 years' imprisonment (it is now 20 years). Finally, Ogilvie was a Crown appeal, meaning that the sentence imposed by the court took into account the concept of double jeopardy.
In Vilai, the offender was convicted of three offences (as opposed to the appellant's conviction for nine offences) and was not convicted of burglary, stealing or assault occasioning bodily harm. He was not in company, and his offending did not seem to be part of a premeditated plan to seek vengeance against and humiliate the complainant. He also had good antecedents and showed genuine remorse.
In Ugle, the offender was not convicted of burglary, grievous bodily harm, assault occasioning bodily harm or deprivation of liberty. He was not disguised or in company. Although he pleaded guilty only after absconding twice, he spared the complainant from having to give evidence.
Finally, in Collins the offender was not convicted of deprivation of liberty or grievous bodily harm. He was not armed, disguised or in company. He pleaded guilty at the earliest possible opportunity and spared the complainant from the ordeal of giving evidence. He also showed genuine remorse.
None of these cases demonstrates that the sentence imposed on the appellant fell outside the customary sentencing range for offences of the type he committed or was inappropriately long.
Conclusion on the term and the seriousness of the conduct
I am not satisfied that the total effective sentence of 14 years' imprisonment was inappropriately long in light of the appellant's offending or his personal circumstances. The crimes he committed were truly appalling. The attack, perpetrated against people who were helpless, was calculated, cruel and vicious. The appellant could point to few features that were of a mitigating nature. I would resolve this point against the appellant.
Crushing
The second argument advanced by the appellant is that the sentence of 14 years' imprisonment offends the totality principle because it is crushing on the appellant. I have already mentioned McLure JA's analysis of this limb of the totality principle in Roffey. Another description of the 'crushing' aspect of totality is to be found in the reasons of Ipp J in Jarvis v The Queen (1993) 20 WAR 201 at 205:
It has often been said that where the overall sentence for two or more crimes is 'crushing', that overall sentence should be reduced, even though each of the terms when separately viewed is within an appropriate range. When is a sentence to be regarded as 'crushing', and when is 'enough' to be regarded as 'enough'? It is sometimes said that a sentence falls into this category when it leaves the offender with no hope for the future; or when it would provoke a feeling of hopelessness in the defendant if and when he is released; or where it destroys a reasonable expectation of a useful life after release: see Fox and Freiberg, Sentencing, State and Federal Law in Victoria (1985).
The appellant submits that the sentencing judge failed to consider specifically the effect of the sentence on the rehabilitation of the appellant. The appellant will not be released until he is in his early 40s and he says that the length of the term will have a significant bearing on him because he has little formal education and has generally worked as a manual labourer. He contends that the sentence is crushing on him because it fails to provide any hope that, upon his release, he will be able to find gainful employment and prepare for the remainder of his life.
The sad fact is that the appellant will spend many of his best years of his life in prison. He will have entered prison as a (relatively) young man and will emerge on the cusp of middle age. But that fact alone is not sufficient to render the sentence 'crushing'. What must be demonstrated is the destruction of a reasonable expectation of a useful life after release.
The appellant will no doubt face difficulties when he is released from prison. Many former prisoners do. But he will have the opportunity over the decade or so to improve his lot in life by furthering his education and obtaining trade qualifications. Whether he attempts to do so will be in his own hands. While increasing age certainly makes manual labouring jobs more difficult to fulfil I do not think it can be said that a man in his early 40s is necessarily barred from callings of that nature. I cannot see anything in the appellant's circumstances which lead to the conclusion that his sentence is any more crushing than a similar sentence imposed on any other offender.
In these circumstances it cannot be said that a sentence of 14 years' imprisonment is crushing. The offences were extremely serious. There were few mitigating factors in the appellant's favour. The sentencing judge expressly addressed the issue of rehabilitation, saying:
[Y]ou accept minimal responsibility for these offences and, in addition, the opinion is expressed that you are at a serious risk of recidivism.
The sentence, though long, was deserved. I repeat that the extent of his rehabilitation is largely in the appellant's own hands and I do not think that the length of the term necessarily leaves him without hope for the future.
One transaction rule
In his oral submissions counsel for the appellant argued that the sentencing judge erred by failing to make the terms for some of the offences concurrent rather than cumulative. In particular, counsel pointed to count 2 (deprivation of liberty) and count 5 (sexual assault), relating to the female complainant, and count 6 (deprivation of liberty) and count 7 (doing grievous bodily harm), both of which involve the male complainant. The basis of the complaint seems to be that the criminal conduct involved in those counts (or the two sets of counts) was part of the same transaction and, accordingly, there should have been an order that the terms be served at the same time. It is difficult to see how this challenge emerges from the ground of appeal as drafted, although it is reflected in the appellant's document entitled 'orders wanted'. Nonetheless, I will deal with the contention that the 'one transaction' principle has been infringed in the way I perceived it to have been advanced in oral argument.
The appellant argues that the deprivation of liberty and grievous bodily harm arose out of the same transaction or, alternatively, that the deprivation of liberty and the sexual assaults arose out of the same transaction. It is said that, as a consequence of the 'one transaction' rule, the sentences on those counts should be made concurrent. The appellant therefore contends that the sentencing judge erred in cumulating the sentences for the deprivation of liberty, the sexual assault and the grievous bodily harm.
A useful analysis of the one transaction rule is provided by Steytler P in The State of Western Australia v Miller [2005] WASCA 53; (2005) 30 WAR 38 at [14] ‑ [17] as follows:
The so-called 'one transaction rule' or 'continuing episode rule' is essentially that concurrent sentences should be imposed in respect of a number of offences which 'arise from substantially the same act or same circumstances or a closely related series of occurrences': R v Brown (1982) 5 A Crim R 404 at 407. In Attorney-General v Tichy (1982) 30 SASR 84 at 93 the rule was said to apply in a case of 'one multi-faceted course of criminal conduct' and, in Pearce v The Queen (1998) 194 CLR 610 at 650 [120] Kirby J said that a judge may make sentences for multiple offences of which an accused is convicted concurrent if they are 'considered to be manifestations of the one criminal enterprise, transaction or episode'.
The underlying principle of the 'rule' has been said to be that all the offences taken together constitute a single invasion of the same legally protected interests: D A Thomas, Principles of Sentencing (2nd ed) at 53. However, there are cases in which distinct and unrelated offences have been treated as if they were related for the purposes of concurrency because they were committed within a short period of time: see, for example, R v Scanlon (1987) 89 FLR 77.
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The so-called 'rule' is not a rule at all. It is merely a guideline. In R v Ruane (1979) 1 A Crim R 284, it was described as a 'good working rule'. Each case depends upon its own circumstances and it is for the sentencing Judge to determine whether the application of the guideline would result in an appropriate measure of the total criminality involved in the conduct: R v Faithfull (2004) 142 A Crim R 554 at [28], per McLure J (with whom the other members of the Court were in agreement); R v White [2002] WASCA 112; R v O'Rourke [1997] 1 VR 246 at 253 and R v O'Brien and Gloster [1997] 2 VR 714 at 720 - 721. As was said by McHugh, Hayne and Callinan JJ in Pearce at 623, the punishment to be exacted should reflect what an offender has done and should not be affected by the way in which the boundaries of particular offences are drawn.
As is clear from the passage, the one transaction principle is not a hard 'rule' at all; it is at most a factor which guides the exercise of the sentencing discretion. This approach was adopted by Wheeler JA in Lawrie v The State of Western Australia [2009] WASCA 45. After citing the passage in Miller above, her Honour said [11] ‑ [12]:
As this analysis, and the cases referred to by Steytler P, make clear, there is no such "rule" as the one transaction rule. That is, even if it is possible to classify a number of offences as forming part of the one 'transaction' (however that word may be understood), it does not follow that all sentences in respect of those offences must be made concurrent … The real question which ultimately arises is whether the aggregate sentence is, overall, proportionate to the criminality of the conduct in all the circumstances of the case.
I do not need to decide whether or not the deprivation of liberty and the sexual assault and (or) the deprivation of liberty and the grievous bodily harm were, in a strict sense, part of the one transaction. Even if they were the sentencing judge was not obliged to make the terms for those offences concurrent. His Honour did look at the question of concurrency and he did so in the context of totality. In the circumstances of this case that is all his Honour was required to do. The real question is not whether the sentence offends the one transaction rule, but whether it is inappropriately long in light of the appellant's criminality. I have addressed that issue earlier in these reasons.
If, as reflected in item 1 of the appellant's written document entitled 'orders wanted', the sentence of 8 years for count 5 were to be served concurrently with all other sentences the criminality of the offences against the male complainant would effectively be unrecognised. The alternative in item 3, namely that the terms of 8 years for count 5 (the sexual assault against the female complainant) and the 3 years for count 7 (doing grievous bodily harm to the male complainant) be served cumulatively but concurrently with all other sentences, would result in a total term of 11 years. But if, as I have concluded, the term of 14 years is not outside the appropriate range, a sentence re‑cast in that way to accommodate the one transaction principle would not reflect the overall criminality of the appellant's conduct.
Conclusion
The appellant has not shown that the sentence of 14 years' imprisonment offends the principle of totality. It is not inappropriately long in relation to the appellant's offending and is not relevantly crushing on him.
I would therefore dismiss the appeal.
WHEELER JA: I agree with Owen and Miller JJA.
MILLER JA: The appellant was indicted on 10 counts of various offences which included aggravated burglary, deprivation of liberty, assault occasioning bodily harm, sexual penetration without consent, with intent to cause grievous bodily harm doing grievous bodily harm, and stealing. He pleaded not guilty to the indictment and was tried in the District Court at Perth during May 2008. On the second day of his trial, he pleaded guilty to nine offences being aggravated burglary, deprivation of liberty (2 counts), assault occasioning bodily harm (2 counts), sexual penetration without consent, grievous bodily harm (a lesser offence), and stealing (2 counts). The appellant's pleas of guilty came after the female complainant had completed her examination‑in‑chief and before she was cross‑examined.
On 2 October 2008, the appellant was sentenced to an aggregate term of imprisonment of 14 years. He was ordered to be eligible for parole and the sentences were ordered to commence on 27 February 2007.
The appellant appeals with leave on the single ground that the sentence of 14 years' imprisonment infringed the totality principle, in that
it was excessive and inappropriately long having regard to the course of criminal conduct viewed as a whole and was crushing upon the appellant.
The facts
The facts of the case were outlined by the sentencing judge after having heard the complainant's evidence at trial and after the appellant's pleas of guilty. The facts revealed that the offences occurred on 25 February 2007. During the early evening of the preceding day, the appellant had been invited into the home of the complainants for a drink. The complainants lived in that residence with their two children. It appears that there was a good deal of drinking that occurred and later in the evening the female complainant and the appellant went to a party. The female complainant left the party and returned home with another woman. This woman was expelled from the house by the male complainant. She returned to the party and informed the appellant of what had occurred.
The complainants went to bed. In the early hours of the following morning, they awoke to find two masked men in their bedroom. One of those men was the appellant.
The appellant and his co‑offender were armed with weapons. They were a stick and a knife. The appellant also had duct tape with him.
The male complainant woke up. He was assaulted by both intruders and hit over the head and about the body. His hands were tied behind his back. In the course of this assault, he was struck on the right hand and his little finger was severed. It was accepted that it was not the appellant who had done this, but the appellant pleaded guilty to grievous bodily harm on the basis that he knew that harm would be done to the male complainant and the severance of his finger was a probable consequence of the conduct in which he and his co‑offender were engaged.
The male complainant lapsed in and out of consciousness in consequence of his injury. The female complainant, who was still on the bed, was then struck by the appellant and his co‑offender. She was struck about the head and the body and when she started to scream the appellant held a towel against her mouth to keep her quiet.
The female complainant was taken to the bathroom by the appellant. She was put on the bathroom floor and there the appellant inserted an object into her vagina. She was bound with her arms tied behind her back and the towel was pushed into her mouth to keep her quiet.
Following the incident of sexual penetration, the appellant pulled the female complainant into an upright position so that she faced the bathroom mirror. The appellant then made a comment to her to the effect that he loved to see the fear in her eyes. She was then pushed or dropped into an empty bath and left there.
The appellant and his co‑offender then endeavoured to clean up the mess that had been occasioned by reason of the assault upon the two complainants. The sentencing judge concluded that this was done in an effort to destroy any fingerprints or other forensic evidence which may have implicated them in the offences.
Threats were made to the female complainant that she should say nothing, otherwise more harm would be done to her. The appellant and his co‑offender then left the house. A mobile telephone belonging to the male complainant and various personal effects belonging to both complainants were stolen.
The sentencing judge noted that count 1 on the indictment charged the aggravated burglary; counts 2 and 3 related to the offences of deprivation of liberty and assault occasioning bodily harm to the female complainant; count 5 related to the sexual penetration of the female complainant without her consent and with an unknown object; counts 6 and 7 related to the deprivation of liberty of the male complainant and the unlawful grievous bodily harm done to him; count 8 related to the assault upon the male complainant which caused him bodily harm, when he was struck about the head and the body; and counts 9 and 10 related to the offences of stealing. Count 4 on the indictment had not been proceeded with by the prosecution.
The sentencing judge concluded that the explanation for the offences was 'some sort of misguided revenge attack upon the young couple'. That was the submission which had been made to the sentencing judge by counsel for the appellant, who accepted the prosecution's statement at the opening of the trial that there was some connection between what had happened earlier in the evening and the appellant's return in the early hours of the morning.
The sentencing judge accepted that the appellant's judgment may have been impaired by alcohol and drugs when the appellant and his co‑offender invaded the home of the complainants and attacked them. As his Honour observed, however, whatever may have occurred earlier in the evening in relation to the female who returned to the house with the female complainant was no justification for the appellant's behaviour.
Sentencing
After recounting the facts of the case, the sentencing judge turned to matters personal to the appellant. His Honour had before him a pre‑sentence report, a psychiatric report and a psychological report. They revealed that the appellant was born on 12 September 1977 and was brought up in Kununurra. He was one of four children. His parents had separated when he was about 12 years of age. He had not received much education beyond Year 8. He had worked as a station hand for a period of time and more lately in the concrete industry. It was said that he had generally maintained employment.
The appellant's history included drug abuse from an early age and drinking to excess. The psychiatric report revealed, however, that there was no major mental illness from which the appellant suffered. The psychological report identified the appellant's main problem as 'an extensive history of poly‑substance dependence (amphetamines, alcohol and marijuana)'.
The sentencing judge noted that the appellant had a criminal record, but said that it was a record which paled in comparison with the offences the subject of the indictment. His Honour noted convictions for offences of disorderly conduct, damaging property, dishonesty and possession of a prohibited drug. There were, however, no offences of a sexual nature nor any convictions for aggravated burglary or for violence of the type committed on the occasion in question.
The sentencing judge expressed the view that there was very little that could be said in favour of the appellant, save for his pleas of guilty for which he should receive credit. It was, however, noted that the pleas were entered 'very late, on the second day of trial, and only after the female complainant had suffered the ordeal of having to give evidence'.
The sentencing judge pointed out that the appellant, through his counsel, had put the question of identity of the offenders 'squarely in issue in opening' and it was only after the complainant (the female complainant) had given evidence firmly identifying the appellant as one of her attackers that he came to the realisation that he was likely to be convicted.
The sentencing judge then said:
In these circumstances the true extent of your remorse may be doubted, and I think this conclusion is reinforced by the comment made by the author of the pre‑sentence report to the effect that when you were interviewed by her you failed to express any victim empathy or to make any comment indicating regret for your behaviour. I note too that the psychologist states in her report that you accept minimal responsibility for these offences and, in addition, the opinion is expressed that you are at a serious risk of recidivism.
The sentencing judge concluded that much of the appellant's conduct was at the high end of the scale for offending of its kind, pointing out that the offence of aggravated burglary involved no less than six of the eight circumstances of aggravation open to be alleged under the Criminal Code (WA). His Honour added that the seriousness of the facts spoke for themselves, particularly as the complainants were a young couple and were entitled to feel safe in their own home. They were entirely vulnerable and defenceless, whereas the appellant was in company and the degree of violence that he and his co‑offender were prepared to use was significant.
The sentencing judge made it clear that he accepted that the appellant had not personally been responsible for the violence which cut off the male complainant's finger. However, his Honour thought that the degrading and humiliating treatment to which the female complainant was subjected was deserving of substantial penalty.
The sentencing judge saw personal and general deterrence as critical elements in the case and sentenced the appellant in the following manner:
Count 1
Aggravated burglary
7 years' imprisonment
Count 2
Deprivation of liberty
3 years' imprisonment
Count 6
Deprivation of liberty
3 years' imprisonment
Count 3
Assault occasioning bodily harm
2 years 8 months' imprisonment
Count 8
Assault occasioning bodily harm
2 years 8 months' imprisonment
Count 5
Sexual penetration without consent
8 years' imprisonment
Count 7
Grievous bodily harm
3 years' imprisonment
Count 9
Stealing
2 years' imprisonment
Count 10
Stealing
2 years' imprisonment
The sentencing judge said that, having regard to the totality principle, it would be appropriate to direct that the sentences imposed in relation to counts 2, 5 and 7 should be served cumulatively, but concurrently with all other terms. This resulted in an aggregate term of imprisonment of 14 years.
Ground of appeal
The ground of appeal is in the following terms:
1.The learned sentencing judge erred in failing to adequately apply the totality principle, in that the total aggregate sentence of 14 years imprisonment is:‑
(a)Excessive and inappropriately long, having regard to the course of criminal conduct, viewed as a whole, and,
(b)Is 'crushing' upon the offender.
This ground raises the totality principle. This is the sole basis upon which it is contended that the aggregate term of 14 years' imprisonment is excessive.
Totality principle
The totality principle is a principle which is well‑known. It was expressed in Postiglione v The Queen [1997] HCA 26; (1997) 189 CLR 295 by McHugh J, at 307 ‑ 308, in the following terms:
The totality principle of sentencing requires a judge who is sentencing an offender for a number of offences to ensure that the aggregation of the sentences appropriate for each offence is a just and appropriate measure of the total criminality involved [See Mill v The Queen (1988) 166 CLR 59 at 63]. In Kelly v The Queen [(1992) 33 FCR 536 at 541] O'Loughlin J, sitting in the Full Court of the Federal Court of Australia, applied the following unreported remarks of King CJ in R v Rossi [Unreported; Court of Criminal Appeal of SA; 20 April 1988]:
'There is a principle of sentencing known as the principle of totality, which enables a court to mitigate what strict justice would otherwise indicate, where the total effect of the sentences merited by the individual crimes becomes so crushing as to call for the merciful intervention of the court by way of reducing the total effect.'
In Schriever v The State of Western Australia [2008] WASCA 133, I set out the accepted position in Western Australia, at [26] ‑ [27], in the following terms:
It is accepted in this jurisdiction that the totality principle comprises two limbs. The position has recently been summarised by McLure JA in Roffey v The State of Western Australia [2007] WASCA 246 [24] ‑ [26] as follows:
[T]he totality principle … comprises two limbs. The first limb is that the total effective sentence must bear a proper relationship to the overall criminality involved in all the offences, viewed in their entirety and having regard to the circumstances of the case, including those referable to the offender personally: Woods v The Queen (1994) 14 WAR 341.
The second limb is that the court should not impose a 'crushing' sentence. The word crushing in this context connotes the destruction of any reasonable expectation of a useful life after release: Martino v The State of Western Australia [2006] WASCA 78 [16]. An aggregate sentence may be inappropriately long under the first limb even if it cannot be described as crushing: Jarvis v The Queen (1998) [sic 1993] 20 WAR 201, 216 (Anderson J).
The practical effect of the totality principle is ordinarily to arrive at an aggregate sentence that is less than that which would be arrived at by simply adding up all the terms appropriate for the individual offences: R v Holder [1983] 3 NSWLR 245, 260 (Street CJ). A rationale for the totality principle is that there is assumed rehabilitation and reduced demand for retribution after the initial sentences have been served. Where the principle of totality comes into effect, it is of little importance how the ultimate aggregate is made up: R v Holder (260).
In Jarvis v The Queen (1993) 20 WAR 201, Ipp J, at 206 ‑ 207, made the following useful observations about the totality principle:
[I]n taking a 'last look' at the total imprisonment imposed, the court will continue to apply the principle that the sentence should be proportionate to the degree of criminality involved. That principle is, after all, basic to the law of sentencing: Wicks v The Queen (1989) 3 WAR 372 at 379 ‑ 380. The crushing effect of a term of imprisonment is merely one of the mitigating factors that is to be taken into account when determining whether a particular term of imprisonment is proportionate to the criminality evinced.
While the subjective effect of a cumulative sentence upon a particular individual is plainly relevant, it cannot be regarded as of paramount importance. The difficulty expressed in Vaitos (at 301) by O'Bryan J with the concept that a richly deserved sentence should be reduced because the offender may feel crushed by it aptly illustrates its limitations as a mitigatory force.
The overriding principle is accordingly that the aggregate sentence (even when punishment is being imposed for multiple offences) should fairly and justly reflect the total criminality of the offender's conduct: Veen v The Queen (No 2) (1988) 164 CLR 465; Evangelista v The Queen; R v Glenister [1980] 2 NSWLR 597 at 612; Lade v Mamarika (1986) 83 FLR 312.
In support of the first limb of the ground of appeal, counsel for the appellant sought to rely upon the one transaction rule. This so‑called rule is not actually incorporated within the ground of appeal, but, in any event, it could not be said that the one transaction rule applied to the present case. The rule has been described by McLure JA in Walgar v The State of Western Australia [2007] WASCA 241, at [9], in the following terms:
The appellant contends that the three offences were part of one transaction and thus should have been ordered to be served concurrently. The scope of the one transaction rule and its relationship with the totality principle have been considered by this court and its predecessor on a number of occasions including in R v Faithfull [2004] WASCA 39; (2004) 142 A Crim R 554 [25] - [28]; Worthington v The State of Western Australia [2005] WASCA 72; (2005) 152 A Crim R 585 [20] - [24]; and Borbil v The State of Western Australia [2007] WASCA 24; (2007) 169 A Crim R 152 [84] - [87]. It is unnecessary to repeat the detail of what was said in those cases. In summary, multiple offences will be part of one transaction if the offender was truly engaged upon one multifaceted course of criminal conduct or if all the offences taken together constitute a single invasion of the same legally protected interest. If the offences are part of one transaction, it is a general rule (or what has been described as a good working rule) that any terms of imprisonment are made concurrent. However, a sentencing judge must in each case consider whether the application of the general rule would result in an appropriate measure of the total criminality involved in the conduct.
It is important to appreciate that the rule applies only to circumstances in which there are multiple offences where the offender was truly engaged upon 'one multifaceted course of criminal conduct or if all the offences taken together constitute a single invasion of the same legally protected interest'.
The so‑called 'one transaction rule' is also only a working rule. In The State of Western Australia v Amoore [2008] WASCA 65; (2008) 182 A Crim R 165, Steytler P, at [14], described it in this way:
It is important, in this respect, to emphasise that the so-called 'one transaction' or 'continuing episode' rule (discussed by McLure JA in R v Faithfull (2004) 142 A Crim R 554) is nothing more than a 'good working rule': Ruane v The Queen (1979) 1 A Crim R 284. The 'rule' is said to apply when a number of offences 'arise out of substantially the same act, circumstance or series of occurrences' (R v Brown (1982) 5 A Crim R 404 at 407), or in a case in which there is 'one multi-faceted course of criminal conduct' (Attorney-General v Tichy (1982) 30 SASR 84 at 93, 6 A Crim R 117 at 126) or one in which they are considered to be 'manifestations of the one criminal enterprise, transaction or episode' (Pearce v The Queen (1998) 194 CLR 610 at 650, 103 A Crim R 372 at 404 (Kirby J)). Just as there is no absolute requirement that a sentencing judge should impose concurrent terms in a case involving multiple offences constituting one transaction or a continuing episode, it is not a principle of law that, if the offences are properly considered not to amount to one transaction or a continuing episode, there can be no concurrency. The task of a sentencing judge, in each case, is to consider whether the total sentence imposed results in an appropriate measure of the total criminality involved in the conduct: R v White [2002] WASCA 112; Postiglione v The Queen (1997) 189 CLR 295 at 307 ‑ 308, 94 A Crim R 397 at 406 (McHugh J). There is, in any event, often no bright line between multiple offences forming part of one continuing episode and offences which cannot, or cannot entirely, be categorised in that way.
In the present case, the behaviour of the appellant could not properly be described as one course of multi‑faceted behaviour, nor could it be said that the one legally protected interest was invaded. There were two victims and there were separate offences committed against each. There is no substance in the suggestion that the one transaction rule ought to have resulted in anything less than sentences of a cumulative nature.
In written submissions, counsel for the appellant contended that whilst the appellant's behaviour was 'deplorable' it was not at the extreme end of the spectrum and a sentence of 14 years' imprisonment was a 'misapplication of the totality principle'.
Although these submissions make reference to the sentence of 8 years' imprisonment on count 5 (sexual penetration without consent) being 'a very high and severe sentence', there is no complaint about any individual sentence.
It is submitted that the sentence of 14 years' imprisonment was likely to have a crushing effect upon the appellant, who is now 31 years of age and will not be released until middle age. It is submitted that this has a significant bearing upon a man 'who has little education and has generally worked as a manual labourer'.
The final submission is that the sentencing judge placed too much emphasis on personal deterrence and too little weight on mitigating factors. Those mitigating factors were said to be that (1) the appellant had only a minor criminal record, with no violent or sexual offending; (2) the offending was triggered by the influence of drugs and alcohol, combined with an altercation with the complainants in the evening prior to the offences; and (3) the appellant pleaded guilty at the trial.
The first factor seems to misunderstand the effect of the appellant's criminal record. Its effect was that he could not be described as a person of good character. The record could not itself aggravate the offences or lead to a heavier sentence than might otherwise have been imposed, but it did not mitigate matters for the appellant. The second factor offers only an explanation for the circumstances of the commission of the offences. The appellant did have a problem with alcohol and drug abuse, but that was no excuse for his behaviour: Britten v The Queen (Unreported, WASCA, Library No 940079, 21 February 1994), at 11; R v Shaharuddin [1999] WASCA 229, White J, at [53], and Damiani v The State of Western Australia [2006] WASCA 47; (2006) 165 A Crim R 358 per Roberts‑Smith JA, at [2]. Further, any altercation with the complainants that may have occurred earlier in the evening was only an explanation for what occurred, not an excuse. The third factor relates to the appellant's pleas of guilty. They were late pleas of guilty. The female complainant had already given evidence at the time they were entered. Some credit was appropriate and the sentencing judge recognised this. It appears that there was an acceptance of responsibility and some facilitation of the course of justice (see Cameron v The Queen [2002] HCA 6; (2002) 209 CLR 339 per Gaudron, Gummow and Callinan JJ, at [11]).
There have been a number of cases involving multiple offences which include burglary and sexual assaults. In Ugle v The State of Western Australia [2007] WASCA 199, at [40], Owen JA observed that the circumstances of the offending conduct in these cases are many and varied and raise a broad spectrum of sentencing principles and considerations. Owen JA also pointed out that considerations of punishment and general and specific deterrence have particular significance in such cases.
In his reasons for judgment in the present case, Owen JA has referred to a number of cases said to be comparable to this one. I respectfully agree with his Honour that the cases do not demonstrate that the sentence of 14 years imposed upon the appellant was outside the range of sentences appropriate for a case of this nature.
In the present case, the appellant's criminality was high in the range of seriousness. He invaded the house of the complainants in the early hours of the morning and at a time when he was disguised. He and his co‑offender approached the two complainants who were asleep in bed. The appellant joined in an attack on the male complainant and struck the female complainant. He then placed a towel against her mouth to stop her screaming. He bound her wrists together and took her to the bathroom, where he inserted an object into her vagina and said words to the effect that he loved to see fear in her eyes. She was seriously demeaned and the appellant's words contained evil intent. The female complainant was pushed into a bath, where she was left. The appellant's co‑offender severed the right little finger of the male complainant in circumstances where that injury was a probable consequence of the joint attack upon the male complainant. Property belonging to both complainants was stolen from the premises.
The combination of offences raised a number of aggravating features. The appellant was in company with another. He invaded the home of the complainants. He deprived them of their liberty. During the course of the offences jointly committed by the appellant and his co‑offender, the male complainant's right little finger was severed. The appellant violently assaulted the female complainant and that assault included a sexual assault.
There was not much that could be said in favour of the appellant. He had a record of convictions (although no convictions for sexual offences or violent offences) and although he pleaded guilty it was at a very late stage in the proceedings. The effect of drugs and alcohol may have been some explanation for what occurred, but it was no excuse. Nor was it any excuse that there had earlier been an incident involving another person at the home of the complainants.
Given all the circumstances, I am unable to conclude that a sentence of 14 years' imprisonment was in breach of the totality principle either because it failed to reflect the total criminality of the appellant's conduct, or because it was a sentence of crushing effect. It was a severe sentence and towards the upper end of the range, but, in my opinion, it was within range and cannot be described as excessive. I would therefore dismiss the ground of appeal.
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