R v White
[2002] WASCA 112
•9 MAY 2002
R -v- WHITE [2002] WASCA 112
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2002] WASCA 112 | |
| COURT OF CRIMINAL APPEAL | |||
| Case No: | CCA:159/2001 | 10 APRIL 2002 | |
| Coram: | WALLWORK J MURRAY J McKECHNIE J | 9/05/02 | |
| 11 | Judgment Part: | 1 of 1 | |
| Result: | Appeal allowed Sentences made partly cumulative | ||
| A | |||
| PDF Version |
| Parties: | THE QUEEN STEPHEN NEIL WHITE |
Catchwords: | Sentence Crown appeal Serious crimes committed over short period Whether sentences should have been made cumulative Principles for accumulation of sentence |
Legislation: | Nil |
Case References: | Little v The Queen [2001] WASCA 87 Lowndes v The Queen (1999) 195 CLR 665; [1999] HCA 29 Oldham v The Queen [1999] WASCA 304 Pearce v The Queen (1998) 194 CLR 610; (1998) HCA 57 Pieri v The Queen [2001] WASCA 357 R v Anderson [1981] VR 155 R v Black [2002] WASCA 26 R v O'Rourke (1997) 1VR 246 R v Tsiaras (1996) 1 VR 398 Ruane v R (1979) 1 A Crim R 284 Dinsdale v The Queen (2000) 202 CLR 321 Shaw v R (1989) 39 A Crim R 343 Jarvis v R (1993) 20 WAR 201 R v Leggett [2000] WASCA 327 Parnis v R (1993) 126 ALR 423 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : COURT OF CRIMINAL APPEAL CITATION : R -v- WHITE [2002] WASCA 112 CORAM : WALLWORK J
- MURRAY J
McKECHNIE J
- Appellant
AND
STEPHEN NEIL WHITE
Respondent
Catchwords:
Sentence - Crown appeal - Serious crimes committed over short period - Whether sentences should have been made cumulative - Principles for accumulation of sentence
Legislation:
Nil
Result:
Appeal allowed
Sentences made partly cumulative
(Page 2)
Category: A
Representation:
Counsel:
Appellant : Mr B Fiannaca
Respondent : Ms C S Amsden
Solicitors:
Appellant : State Director of Public Prosecutions
Respondent : Legal Aid of Western Australia
Case(s) referred to in judgment(s):
Little v The Queen [2001] WASCA 87
Lowndes v The Queen (1999) 195 CLR 665; [1999] HCA 29
Oldham v The Queen [1999] WASCA 304
Pearce v The Queen (1998) 194 CLR 610; (1998) HCA 57
Pieri v The Queen [2001] WASCA 357
R v Anderson [1981] VR 155
R v Black [2002] WASCA 26
R v O'Rourke (1997) 1VR 246
R v Tsiaras (1996) 1 VR 398
Ruane v R (1979) 1 A Crim R 284
Case(s) also cited:
Dinsdale v The Queen (2000) 202 CLR 321
Shaw v R (1989) 39 A Crim R 343
Jarvis v R (1993) 20 WAR 201
R v Leggett [2000] WASCA 327
Parnis v R (1993) 126 ALR 423
(Page 3)
1 WALLWORK J: I agree with the reasons for judgment of McKechnie J and to the orders proposed by his Honour.
2 There is nothing I wish to add.
3 MURRAY J: I too would allow this appeal, generally for the reasons to be published by McKechnie J, to which I have nothing to add.
4 I would vary the orders made by way of service of the terms imposed, to provide for their partial accumulation, in the manner proposed by his Honour.
McKECHNIE J:
Introduction
5 On 2 October 2001 the respondent to this Crown Appeal, Stephen Neil White, pleaded guilty to four counts on an indictment alleging offences which had occurred on 18 June 2001 at Kununurra. On 31 October 2001 he was sentenced by McLure J as follows:
Count 1 – Unlawful wounding with intent to do grievous bodily harm – 8 years.
Count 2 – Attempted murder – 13 years.
Count 3 – Sexual assault (vaginal penetration) – 9 years
Count 4 – Sexual assault ( anal penetration) – 9 years.
6 Each sentence was directed to be served concurrently making a total of effective sentence of 13 years' imprisonment. The sentences took effect from 21 June 2001. In each case a parole eligibility order was made.
7 The circumstances in which the offences were committed were very bad indeed. It is unnecessary to set out the details, it being fairly conceded by counsel for the respondent that they were crimes in the worst category.
8 Put shortly, the complainant, who was five years old, was staying in a bush camp off Victoria Highway in Kununurra, where the respondent was also staying. At about 9.00 pm he took the child about a kilometre away from the camp to where the offences took place. The order in which the events occurred is unknown. In the course of events, the respondent
(Page 4)
- smashed a rock against the child's skull, tried to strangle her with a rope until she lost consciousness, and penetrated her anally and vaginally.
9 Later, he took the critically injured child to the Kununurra District Hospital.
10 The grounds of appeal are as follows:
"1. The learned sentencing Judge erred in ordering that each of the terms of imprisonment be served concurrently.
PARTICULARS
(a) The learned sentencing Judge did not expressly consider the totality principle, or whether any of the counts warranted a cumulative sentence.
(b) The offences in counts 3 and 4 were of a completely different character from those in counts 1 and 2 and cumulative or partly cumulative sentences should have been imposed in respect of those counts.
2. The learned sentencing Judge erred in imposing a sentence which failed adequately to reflect the total criminality of the offending behaviour.
PARTICULARS
The overall sentence failed adequately to reflect:
(i) the extreme degree of violence inflicted upon the complainant;
(ii) the extreme nature of the sexual offences;
(iii) the young age of the complainant and the age difference between her and the offender; and
(iv) the severe physical injuries and psychological trauma suffered by the complainant."
(Page 5)
- within that concession is the recognition that the respondent was entitled to a reduction in sentence by reason of the fast track-plea of guilty.
12 Although the Judge did not state the precise reduction she applied she did comment:
"You co-operated with the authorities and you pleaded guilty on the fast-track system which in this jurisdiction means a discount of anything between 25 to 35 per cent."
13 I assume she applied a discount of that order which was appropriate.
14 The Crown does not quarrel with the parole eligibility order. The Crown asserts that in failing to accumulate in whole or in part some or all of the sentences the trial Judge fell into error with the result that the total sentence for the whole of the criminal conduct was inadequate.
Concurrent or distinct criminal conduct
15 The question whether the sentences for conduct which occurs closely in time should be made concurrent or cumulative must depend upon individual judgment. In Ruane v R (1979) 1 A Crim R 284 Wallace J said at 286:
"Whilst it is true that where several offences are tried together and arise out of what one may call the same transaction, it is a good working rule that the sentences imposed for those offences should be made concurrent, the reason therefor is that if a man is charged with several serious offences arising out of the same situation and consecutive sentences are imposed, the total very often proves to be much too great for the incident in question. That is only an ordinary working rule; it is perfectly open to a trial Judge in a case such as the present to approach this in one of two ways. Either he may reflect the appropriate punishment by making the terms concurrent and in that instance, for example, in this case imposing a sentence of 7 years on the breaking and entering with intent count and, for example, 3 years concurrent on the deprivation of liberty count, or alternatively, in the manner in which the sentence under appeal was in fact imposed."
16 Brinsden J who agreed with Wallace J said at 289:
(Page 6)
- "The fact that two offences occur close together in time does not necessarily mean that they will be treated as part of one incident, if they are essentially different in character and involve different subject matter.
…
I also think that it does not follow inevitably that because one offence is committed to further the success of another offence that first offence must be treated as part of the same incident. It all depends in the end upon the particular facts in each case."
17 Jones J who dissented took the view that in the circumstances:
"Here, although the two offences looked at from one point of view were distinct and separate crimes, yet they did, in my opinion, truly arise from 'one and the same act'."
18 Some of the observations of Wallace J should now be modified in the light of Pearce v The Queen (1998) 194 CLR 610; (1998) HCA 57.
19 In R vO'Rourke (1997) 1VR 246 the offender had been convicted of rape, threats to kill, intentional injury and two indecent assaults. The Court of Appeal held that in the circumstances it was not open to the sentencing Judge to write off the impact of these later offences by saying they were part of one relatively short continuous episode for to do so was to undervalue the gravity of the respondent's conduct and the impact of that conduct upon his victim. After examining authority, the Court concluded at 253:
"What is necessarily required in every case, even cases of sexual and violent offenders, is a sound discretionary judgment as to whether there should be cumulation and, if so, whether such cumulation should be in relation to some or all of the counts and whether it should be in whole or in part."
20 This approach was specifically adopted by this Court in Oldham v The Queen [1999] WASCA 304. Oldham had been convicted of two counts of aggravated sexual assault and one count of murder in respect of the same woman. The offences occurred over a short period of time.
21 The trial Judge imposed cumulative sentences of imprisonment for each count of aggravated sexual assault, to be served concurrently, with a mandatory sentence of life imprisonment for murder. Murray J said at 35:
(Page 7)
- "These were separate offences and transactions, although close in time. They were individually of the utmost gravity. They merited separate punishment …"
22 In Pieri v The Queen [2001] WASCA 357 this Court considered the question of cumulative or concurrent sentences. Einfeld AUXJ, with whom Wallwork J agreed, quoted Thomas' "Principles of Sentencing", 2nd ed, 1979 at p 53:
"Where two or more offences are committed in the course of a single transaction, all sentences in respect of these offences should be concurrent rather than consecutive."
23 At par 41 Einfeld AUXJ distilled the essence of the rule as follows:
"The essence of the one transaction rule thus appears to be that consecutive or cumulative sentences are inappropriate when all the offences taken together constitute a single invasion of the same legally protected interest …"
24 Roberts-Smith J dissented on this point. He analysed the authorities at par 14 to par 16 before concluding that the trial Judge had made no error in accumulating sentences for offences of two armed robberies and one attempted armed robbery occurring over period of a week, "commonly rooted in the applicant's desperate, personal and financial circumstances". I acknowledge the assistance I have received from the judgments in Pieri as each judgment conducts an analysis of the relevant cases in the area. I therefore need to make only brief reference to relevant principles. In Pearce v The Queen (supra), where the majority (McHugh, Hayne, Callinan JJ) held at par 44 and 45.
"Does that matter if as was the case here, an order was made that the sentences be served concurrently?
To an offender, the only relevant question may be 'how long', and that may suggest that a sentencing judge or appellate court should have regard only to the total effective sentence that is to be or has been imposed on the offender. Such an approach is likely to mask error. A judge sentencing an offender for more than one offence must fix an appropriate sentence for each offence and then consider questions of cumulation or concurrence, as well of course, as questions of totality."
(Page 8)
25 The question commonly posed for answer by a sentencing Judge is whether the offences arise out of the same set of facts so that the sentences should properly be made concurrent, or whether the offences disclose entirely distinct conduct which should attract separate and therefore cumulative punishment. There is often no obvious answer as the authorities to which I have referred, and the further cases set out in Pieri illustrate. Ruane and Pieri are each examples where there was disagreement as to the correct approach.
26 There is no hard and fast rule. In the end a judgment must be made to balance the principle that one transaction generally attracts concurrent sentences with the principle that the overall criminal conduct must be appropriately recognised and that distinct acts may in the circumstances attract distinct penalties. Proper weight must therefore be given to the exercise of the sentencing Judge's discretion.
27 McLure J provided no reasons for her decision to make the sentences concurrent.
28 The principles governing the interference by an appellate court with the discretion exercised by a Judge in pronouncing sentence are well known and do not require elaboration: Little v The Queen [2001] WASCA 87 at 16; Lowndes v The Queen (1999) 195 CLR 665; [1999] HCA 29. The special principles which moderate Crown appeals against sentence are also well known: R vBlack [2002] WASCA 26.
29 In responding to this appeal, counsel for the respondent points to the mitigatory circumstances to establish that the sentences imposed should not be disturbed in any event.
30 It seems clear that the plea of guilty was taken into account by the sentencing Judge in setting the length of the sentences. A discount of the order she suggests – 25 to 35 per cent - would put a sentence for attempted murder, before the reduction, at around 17 years. The sentences for the sexual assaults would start at around 12 years. The starting point, together with a similar starting point for the offence of unlawful wounding with intent, is well within the range of a sound sentencing discretion having regard to the extreme nature of the crimes committed against the child.
31 The Judge also took into account the significant mitigation in the respondent taking the child to hospital. She referred specifically to this event and the sentence reflects an acknowledgement of it.
(Page 9)
32 Had he not so acted, a sentence of life imprisonment for the crime of attempted murder committed with the attendant circumstances may well have been imposed.
33 Counsel relied upon the mental state of the respondent both in submissions to McLure J and before this Court. It is important to understand what that evidence was.
34 There is no psychiatric or psychological report prepared for purposes of a pre-sentence report. However, when first charged, the respondent was referred to Graylands Hospital for assessment where he was seen by Dr Patchett who noted:
"The defendant impresses as a man of limited intellectual ability with rather unsophisticated vocabulary and use of syntax. There is otherwise no evidence of cognitive impairment however."
35 In his formal opinion Dr Patchett concluded that the respondent was fit to stand trial as there was no psychiatric disorder such as to raise insanity. He said:
"The defendant's problems reside in the area of personality dysfunction and intellectual impairment. There is no evidence for formal psychiatric disorder but clearly the defendant functions poorly, on the fringes of society with serious impairments in his ability to relate to other people, to perform in an occupation or to maintain social bonds."
36 The respondent had been previously assessed in South Australia in 1985. This assessment was available to the writer of the pre-sentence report.
37 The report summarised the respondent in terms:
"A history of head injury is noted and he has been assessed as being of borderline intellectual ability. There is a pattern of heavy alcohol and drug use from age 14 years. Both are likely to compound Mr White's impulse control difficulties. ..."
38 It can be accepted that mental illness or mental infirmity is a relevant factor to take into account in sentencing. In some cases it may reduce that portion of the sentence notionally allocated to general deterrence: R v Anderson [1981] VR 155. Serious psychiatric illness and certain forms of
(Page 10)
- intellectual disability are relevant to sentencing in a number of ways including the five ways enumerated by the Court of Appeal in R v Tsiaras (1996) 1 VR 398 at 400.
39 In the present case, the medical evidence did not establish that the mental impairment had any effect on the respondent's action. There was no evidence to that effect before the sentencing Judge. While it was right for her to take the respondent's mental condition into account, I consider that she has done so as reflected in the length of the sentences imposed. To order concurrency by reason of the medical condition alone, or in combination with the other matters advanced in mitigation, would, in my respectful opinion, be an error.
40 The only point of criticism which can be directed at the sentence is the decision to make all sentences concurrent.
41 The series of offences committed by the respondent were of such a distinct character that, notwithstanding the closeness in time over which they were committed on the same person, a proper exercise of sentencing discretion would have been to accumulate the sentences until a point where the totality of the sentences would become oppressive.
42 In the absence of reasons as to why concurrent sentences were imposed, I infer error which has caused the sentencing process to miscarry in a way sufficient to justify the intervention of this Court. I would allow the appeal.
The re-sentence
43 It becomes necessary to restructure the sentences.
44 If all the sentences were accumulated, the appellant would receive a sentence of 39 years. Such a total sentence would be oppressive, beyond the proper principles of punishment, and fail to offer any prospect of meaningful rehabilitation.
45 Necessarily then, the sentences have to be adjusted to allow proper punishment but also to take account of the totality of the sentences when compared with the overall criminality of the conduct and general sentencing principles.
46 There is some logic in imposing concurrent sentences for similar crimes. On this approach, the sentence for count 1, unlawful wounding with intent, and count 2, attempted murder would be served concurrently.
(Page 11)
47 The sentences for counts 3 and 4, the sexual assaults, would also be served concurrently.
48 These latter sentences for counts 3 and 4 should be served cumulatively on the sentences for counts 1 and 2. If full cumulation is ordered, the resulting sentence would be one of 22 years' imprisonment.
49 While such a sentence is justified in logic, it would fail to take proper account of two aspects. The first is the fast track plea of guilty, the discount for which will be diluted by a straight accumulation. The second is the moderation of sentence generally required following a successful Crown appeal against the sentence.
50 I would therefore order the sentences for counts 1 and 2 be made partly cumulative on the sentences for counts 3 and 4 to take account of these aspects. The adjusted term will total 17 years.
51 Orders:
1. The appeal be allowed.
2. The order for service of each sentence concurrently with the other sentences be set aside.
3. In lieu thereof order:
(i) The sentence on count 3 be served concurrently with the sentence on count 4.
(ii) The sentences on counts 1 and 2 be served concurrently with each other but partly cumulative on the sentence imposed on count 3 and 4.
(iii) The sentences on counts 1 and 2 commence after service of 4 years of the sentences on count 3 and 4.
52 The orders for parole eligibility and for the date of the commencement of the sentence are not disturbed.
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