Royer v The State of Western Australia - [2009] WASCA 139

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE COURT OF APPEAL (WA)

CITATION: ROYER -v- THE STATE OF WESTERN AUSTRALIA [2009] WASCA 139

CORAM: OWEN JA
BUSS JA
MILLER JA

HEARD: 3 APRIL 2009

DELIVERED : 6 AUGUST 2009

FILE NO/S: CACR 151 of 2008

BETWEEN: JUSTIN MICHAEL ROYER
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent

ON APPEAL FROM:
Jurisdiction              :  DISTRICT COURT OF WESTERN AUSTRALIA
Coram  :O'SULLIVAN DCJ
File No  :IND BUS 122 of 2008

Catchwords:

Criminal law and procedure - Sentencing - Multiple violent offences committed against elderly victim during home invasion - Aggravated burglary, deprivation of liberty, threats to kill, aggravated sexual assault (3), aggravated assault occasioning bodily harm - Whether term of 16 years infringed totality principle - Whether structure of sentences infringed one transaction principle - Characterisation of offences as in worst category - Effect of cl 3A of Sentencing Legislation (Transitional Provisions) Amendment Act 2008

Legislation:

Criminal Appeals Act 2004 (WA), s 31(3), s 31(4), s 31(5)
Sentencing Act 1995 (WA), s 8(1), s 8(2), s 8(4)
Sentencing Legislation (Transitional Provisions) Amendment Act 2008 (WA), s 3, s 4, sch 1 cl 3A

Result:

Appeal dismissed

Category: D

Representation:

Counsel:

Appellant: Mr D S Hunter
Respondent: Mr J A Scholz

Solicitors:

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

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

AB v The Queen [1999] HCA 46; (1999) 198 CLR 111
Abbott v The State of Western Australia [2007] WASCA 105
Attorney-General v Tichy (1982) 30 SASR 84
Barnes v The State of Western Australia [2004] WASCA 258
Bensegger v The Queen [1979] WAR 65
Brooks v The Queen [2006] NSWCCA 169
Cameron v The Queen [2002] HCA 6; (2002) 209 CLR 339
Carr v The State of Western Australia [2006] WASCA 125; (2006) 166 A Crim R 1
Carroll v The Queen [2009] HCA 13; (2009) 83 ALJR 579
Chan v The Queen (1989) 38 A Crim R 337
Clarkson v The State of Western Australia [2006] WASCA 250
Collins v The Queen [2002] WASCA 142
Cooper v The State of Western Australia [2009] WASCA 37
Damiani v The State of Western Australia [2006] WASCA 47
Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321
H v The State of Western Australia [2006] WASCA 53; (2006) 163 A Crim R 151
Jarvis v The Queen (1993) 20 WAR 201
Johnson v The Queen [2004] HCA 15; (2004) 78 ALJR 616
Keating v The State of Western Australia [2006] WASCA 65
Krencej v The Queen [1999] WASCA 20
Lawrie v The State of Western Australia [2009] WASCA 45
Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665
Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357
Mill v The Queen [1988] HCA 70; (1988) 166 CLR 59
Moody v French [2008] WASCA 67; (2008) 36 WAR 393
Moulds v The Queen (Unreported, WASC, Library No 980147, 4 March 1998)
Narrier v The Queen [2000] WASCA 86; (2000) 111 A Crim R 405
Neal v The Queen (1982) 149 CLR 305
Pearce v The Queen [1998] HCA 57; (1998) 194 CLR 610
Penny v The State of Western Australia [2006] WASCA 173
Pollock v The State of Western Australia [2009] WASCA 121
Postiglione v The Queen [1997] HCA 26; (1997) 189 CLR 295
R v Abboud [2005] NSWCCA 251
R v Faithfull [2004] WASCA 39; (2004) 142 A Crim R 554
R v Greenwood (Unreported, WASCA, Library No 960277, 21 May 1996)
R v Ogilvie (Unreported, WASCA, Library No 960643, 8 November 1996)
R v Shannon (1979) 21 SASR 442
R v White [2002] WASCA 112
RH McL v The Queen (2000) 203 CLR 452
Rigby v The State of Western Australia [2005] WASCA 134
Ryan v The Queen [2001] HCA 21; (2001) 206 CLR 267
Schriever v The State of Western Australia [2008] WASCA 133
Teakle v The State of Western Australia [2007] WASCA 15
The State of Western Australia v Akizuki [2008] WASCA 267
The State of Western Australia v Amoore [2008] WASCA 65; (2008) 182 A Crim R 165
The State of Western Australia v BLM [2009] WASCA 88; (2009) 256 ALR 129
The State of Western Australia v Miller [2005] WASCA 53; (2005) 30 WAR 38
The State of Western Australia v Turaga [2006] WASCA 199
Thorn v The State of Western Australia [2008] WASCA 36
Ugle v The State of Western Australia [2007] WASCA 199
Vagh v The State of Western Australia [2007] WASCA 17
Veen v The Queen [No 2] [1988] HCA 14; (1988) 164 CLR 465
Vilai v The Queen [1999] WASCA 275
Vlek v The Queen (Unreported, WASCA, Library No 990153, 29 March 1999)
Walgar v The State of Western Australia [2007] WASCA 241
Warburton v The State of Western Australia [2009] WASCA 113
Weininger v The Queen [2003] HCA 14; 212 CLR 629
Wong v The Queen [2001] HCA 64; (2001) 207 CLR 584
Woodley v The State of Western Australia [2008] WASCA 92
Worthington v The State of Western Australia [2005] WASCA 72

Table of Contents

Owen JA's reasons
Factual background
The facts
Sentencing remarks and the sentence
Grounds of Appeal
Ground 2 ‑ the one transaction principle
Ground 1 ‑ Infringing the totality principle.

The totality principle ‑ general considerations
The circumstances of the offences
Personal circumstances of the appellant
The guilty plea and remorse
Comparable Cases
Does the sentence offend the totality principle?

The disposition of the appeal

Some introductory comments
Resentencing the appellant: the 2008 Amendment Act
A notional resentencing of the appellant
Is a resentencing necessary?

Conclusion
Buss JA's reasons
The offences and the sentences
The grounds of appeal

General principles of appellate review
The nature of manifest excess
Multiple offences: the 'one transaction' or 'continuing episode' rule and the totality principle
The merits of ground 1
The merits of ground 2
The re‑sentencing of the appellant

Conclusion
Miller JA's reasons

Facts

Sentencing
Grounds of appeal

Conclusion

OWEN JA: The appellant pleaded guilty in the District Court to numerous serious offences arising out of a home invasion in the course of which he attacked and sexually assaulted an elderly woman. He was sentenced to imprisonment for a total of 16 years. The appellant has been granted leave to appeal and this is the substantive appeal against his sentence.

Factual background

At the time of the offences, the complainant was a 62‑year‑old widow and grandmother who lived alone in her own home. She was of small stature. The appellant is a male who was 30 years of age at the time the offences were committed.
At around 7 am on 29 May 2008 the complainant was alone in the house. The appellant entered the house uninvited, went to the bedroom, forced the complainant onto the bed and subjected her to a series of sexual assaults, digital and penile, over a period of about 25 minutes. He also struck the complainant and threatened to kill her if she told anyone what had happened. He stole money from her wallet and ran from the house.
A few days later the appellant was taken to the local police station where he was interviewed by the police and identified by the complainant. He claimed to have no memory of the incident but later admitted to the offences. He was charged with seven offences. I propose to summarise the effect of the indictment and to list the section of the Criminal Code under which the charge was preferred. I will also specify the shorthand description commonly used for the relevant offences and the maximum penalty prescribed by the legislature for each offence.
1.Count 1: the appellant, while in the place of the complainant without her consent, stole $200, the property of the complainant and did so in circumstances of aggravation; namely, he did bodily harm to the complainant; he detained her; he knew or should have known someone was in the place; and the place was used for human habitation. (Code s 401(2), aggravated burglary, 20 years).
2.Count 2: the appellant unlawfully detained the complainant. (Code s 333, deprivation of liberty, 10 years).
3.Count 3: the appellant made a threat to kill the complainant. (Code s 338B, threat to kill, 7 years).
4.Count 4: the appellant sexually penetrated the complainant without her consent (by inserting his finger in her vagina) and he did so in circumstances of aggravation: namely, he did bodily harm to the complainant; he threatened to kill her; and the complainant was over the age of 60. (Code s 326, aggravated sexual assault, 20 years).
5.Count 5: the appellant sexually penetrated the complainant without her consent (by inserting his finger into her anus) and he did so in circumstances of aggravation: namely, he did bodily harm to the complainant; he threatened to kill her; and the complainant was over the age of 60. (Code s 326, aggravated sexual assault, 20 years).
6.Count 6: the appellant sexually penetrated the complainant without her consent (by inserting his penis in her vagina) and he did so in circumstances of aggravation: namely, he did bodily harm to the complainant; he threatened to kill her; he did an act likely to degrade the complainant in a serious and substantial way (ejaculate inside her); and the complainant was over the age of 60. (Code s 326, aggravated sexual assault, 20 years).
7.Count 7: the appellant unlawfully assaulted the complainant and did her bodily harm and in circumstances of aggravation; namely the complainant was over the age of 60 years. (Code s 317(1), aggravated assault occasioning bodily harm, 7 years).
The appellant pleaded guilty and was sentenced in the District Court to a total term of 16 years' immediate imprisonment backdated to 4 June 2008, being the date on which he was taken into custody. He was made eligible for parole on each of the sentences.

The facts

On 22 May 2008 the appellant had separated from his de facto partner of three years and spent a few nights at a hotel before moving into the house of his mother and stepfather. On the 28 May 2008, after finishing work at 5 pm, the appellant returned to this house and drank twelve stubbies of beer and five cans of over‑proofed rum. He took six Ritalin tablets that had been prescribed to his younger brother, walked to the local hospital and obtained a fit-pack containing syringes. He then went to a public toilet nearby and crushed and injected himself with the six Ritalin tablets.
At approximately 7 am on 29 May 2008, the complainant went out of the back door of her house for a cigarette then returned inside and went to the bathroom, leaving the back door unlocked. She saw the appellant run past the bathroom window on the outside of the house. He ran through the unlocked rear door into the house (part of count 1).
The appellant went into the complainant's bedroom and he forced her onto the bed. He conducted an attack on the complainant that lasted about twenty-five minutes. He forcibly stuffed an unspecified piece of material into her mouth, removed all her clothing and tied her hands behind her back (count 2). The complainant had difficulty breathing. He repeatedly told her he was going to kill her during the attack (count 3) and called her a bitch. He said words to the effect : 'we can do this the easy or the hard way'.
He placed a pillow over her face and digitally penetrated her vagina with his finger (count 4). He then turned the complainant over so she was lying on her stomach, moved her legs under her and spat on her anus for lubrication as he penetrated her anus with his finger (count 5). He continued to penetrate the complainant's vagina and anus on numerous occasions using more fingers each time. This caused severe lacerations and bleeding and was very painful. In her victim impact statement the complainant described the pain as 'excruciating' and 'immense'.
The appellant masturbated until his penis was erect and used it to penetrate the complainant's vagina with his penis until ejaculation (count 6). According to the complainant's statement his penis was inside her for about 2 ‑ 3 minutes. He then struck her twice on the face (count 7), threatened to kill her if she told anyone, and stole $200 from her purse in the kitchen (part of count 1). As he was leaving the house the appellant told the complainant not to move for at least five minutes. He then ran back to his mother's house which was a short distance away and fell asleep on her couch.
The complainant, who had been left naked on the bed, remained where she was for about 10 minutes. Eventually she was able to loosen the cloth from her mouth but could not untie her hands. But she did manage to get off the bed, find her glasses and telephone her daughter for help. After the daughter and a police officer arrived, the complainant was taken to hospital for examination and treatment.
On 4 June 2008 the appellant was located at his place of employment and conveyed to the police station where he participated in two video records of interview. The first interview contains a series of denials. In the second record of interview, held some 25 minutes after the first interview, he admitted to committing the offences alleged against him. Though he claimed to have no memory of committing the offences the appellant accepted he had done so after details of evidence, including his photo board identification by the complainant and his DNA being located on swabs taken from the complainant, were presented to him by police during the interview.

Sentencing remarks and the sentence

The sentencing judge's remarks before formally pronouncing sentence are relatively brief. His Honour set out a brief recitation of the facts of the incident. He then turned to the complainant's deposition in which she referred to the threats and verbal abuse made against her, the great pain she suffered, the fact she was tied up, the sexual assaults and other physical assaults and the degrading circumstance of aggravation. His Honour went on to make a number of observations. They include the following.
1.The appellant's protestations that he had no memory of the incident should not be accepted. There was medical evidence that a mixture of alcohol and Ritalin could lead to disinhibited behaviour and agitation and alcohol abuse could cause amnesia. But in the police records of interview the appellant first denied being drunk and then admitted a number of specific acts in detail that only he could have known. Accordingly, his Honour was not persuaded that the appellant truly had no recollection of the events.
2.The termination of the appellant's three year de facto relationship, and his work history, his history of alcohol and drug abuse might well have had an effect on his mental wellbeing.
3.But it could not be said that the appellant was not responsible for his actions. He had to now face the consequences of what he had done. The claim on his behalf that because he had no recollection of the events and had taken Ritalin and alcohol he should be regarded as acting out of character, had come to accept what had occurred, and should be treated as remorseful and deeply ashamed did little to commend itself as being of significant mitigating value.
4.His Honour remarked that the appellant had a prior record but it did not include any sexual offences.
5.While the appellant had pleaded guilty and spared the complainant the ordeal of a trial, the forensic and other evidence against him was clearly overwhelming and he was always going to be convicted.
6.The pre-sentence, psychological and other reports were noted as were all other matters put on behalf of the appellant. However, his Honour concluded that 'there is not very much in all of that which commends itself to me as being of significant mitigatory value'.
7.The sentencing judge then returned to the circumstances of the offences which he said were 'truly to be described as horrifying'. He remarked that the complainant was 62 years old in her own home. She was entitled to feel safe and secure there early in the morning. Instead she was violated, threatened with death, physically assaulted, robbed and was left terrified, highly distressed, physically battered and emotionally destroyed. The complainant's victim impact statement made harrowing reading. The brutality of the attack on her, its violence and the degrading and humiliating treatment to which she was subjected justified the conclusion that this offending be described as falling into the most serious category of offending of its kind.
His Honour concluded that significant terms of imprisonment must be imposed to be served immediately. He then announced the terms that he intended to impose for the individual counts, in each case noting the term that would have been imposed but for the Sentencing Legislation Amendment and Repeal Act 2003 (WA):
(a)Count 1 (aggravated burglary: 5 years (reduced from 7 1/2 years);
(b)Count 2 (deprivation of liberty): 3 years (reduced from 4 1/2years);
(c)Count 3 (threat to kill): 3 years (reduced from 4 1/2years);
(d)Count 4 (aggravated sexual assault): 8 years (reduced from 12 years);
(e)Count 5 (aggravated sexual assault): 8 years (reduced from 12 years);
(f)Count 6 (aggravated sexual assault): 8 years (reduced from 12 years);
(g)Count 7 (aggravated assault occasioning bodily harm): 2 years reduced from 3 years).
The sentencing judge then turned to, but rejected, a submission made on behalf of the appellant that the offences were part of the one transaction and, accordingly, all terms should be served concurrently. His Honour said:
The offending here involved in part different acts committed at different times, even though closely related in time. Of course, counts 1, 2 and 3 are interrelated and should be treated concurrently, but as to the other offences the subject of the indictment, the decisions you made to commit them were deliberately made by you discretely and should not be treated as part of the one transaction.
Further, and in any event, the seriousness of your offending demands a degree of accumulation. In my opinion the term of eight years' imprisonment imposed on you in respect of counts 5 and 6 on the indictment should be served cumulatively, one upon the other. All other sentences should be served concurrently and with the cumulative terms.
The appellant was sentenced to a total term of 16 years' imprisonment commencing on 4 June 2008, the date upon which he was taken into custody. He was declared eligible to be considered for parole.

Grounds of Appeal

The appellant advances two grounds of appeal. First, that the aggregate sentence of 16 years' imprisonment infringes the totality principle having regard to the overall criminality involved in the various offences viewed in their entirety and all the circumstances of the case, including those personal to the appellant. This ground is supported by a number of particulars:
(a)the appellant's fast track guilty pleas;
(b)the appellant's shame and remorse;
(c)the appellant's co‑operation with investigating police;
(d)the appellant's limited criminal record: no prior sex offences or offences of violence;
(e)the appellant having never been imprisoned before;
(f)the offences were committed under the influence of a cocktail of Ritalin and alcohol;
(g)the offences were opportunistic and not premeditated;
(h)the appellant had not consumed illicit drugs or drugs prescribed to others for a period of 5 years prior to committing the offences;
(i)the appellant's good employment history and endeavours to address his behavioural and mental health problems by seeking professional help prior to the offences occurring;
(j)the appellant separating from his long-time de facto partner a week prior to the offences occurring;
(k)the appellant's age of 30, his prospects of rehabilitation and the crushing impact of a 16 year term of imprisonment; and
(l)the term of 16 years was manifestly excessive having regard to sentences imposed in respect of comparable crimes.

The second ground of appeal calls in aid the one transaction principle. The appellant contends that all the offences occurred at the one time in a single multi-faceted course of conduct. Accordingly, the order that the sentence of 8 years' imprisonment for count 6 be served cumulatively with the sentence of 8 years for count 5 infringes the one transaction principle.

Ground 2 ‑ the one transaction principle

It will be convenient to deal first with ground 2. It involves a submission by the appellant that the different offences were part of a continuing episode in regard to the same enterprise. In particular, the offence of aggravated penile penetration (count 6) occurred in one multi‑faceted course of criminal conduct with all the other offences. As the appellant had been sentenced to 8 years for the aggravated digital penetration (count 5) the sentence on count 6 should have been made concurrent with the sentence for count 5 and for all other sentences. In other words, the total sentence should have been 8 years, not 16 years.
A great deal of judicial ink has been spilt by the members of this court in the present decade in an attempt to describe the so-called 'one transaction rule'. I mention, by way of example, R v White [2002] WASCA 112 [15] - [26]; R v Faithfull [2004] WASCA 39; (2004) 142 A Crim R 554 [25] - [28]; The State of Western Australia v Miller [2005] WASCA 53 [14] - [17]; (2005) 30 WAR 38; Worthington v The State of Western Australia [2005] WASCA 72 [20] ‑ [27]; The State of Western Australia v Amoore [2008] WASCA 65 [14]; (2008) 182 A Crim R 165; Woodley v The State of Western Australia [2008] WASCA 92 [24] - [25]; and Lawrie v The State of Western Australia [2009] WASCA 45 [10].
These decisions (and the binding and persuasive authorities from which they stem) illustrate the difficulty in attempting a comprehensive and all‑embracing definition of the 'rule'. Over the years it has been, and continues to be, formulated in different ways. The variety of the available formulations does little to provide definitive guidance to sentencing officers having to apply the 'rule' to the factual circumstances of an individual case. That having been said, there is universal recognition in the authorities on two points. First, the 'rule' is not a rule at all. It is one of many sentencing principles the object of which is to guide a judicial officer in the proper exercise of the sentencing discretion. Secondly, even if offences are properly to be characterised as arising from the one transaction, a judge is not obliged to apply concurrent terms if to do so would result in an effective term that fails to reflect the degree of criminality involved: see, for example, Amoore [14].
I hesitate to add to the plethora of writings on the issue but I think it is necessary to embark on a short examination of the rationale and proper application of the one transaction principle. At its heart, the one transaction principle recognises that, where there is an interrelationship between the legal and factual elements of two or more offences with which an offender has been charged, care needs to be taken so that the offender is not punished twice (or more often) for what is essentially the same criminality. The interrelationship may be legal, in the sense that it arises from the elements of the crimes. It may also be factual, because of a temporal or geographical link or the presence of other circumstances compelling the conclusion that the crimes arise out of substantially the same act, omission or occurrences.
Some of the authorities draw on a passage from Thomas D A, Principles of Sentencing (2nd ed) in which the 'rule' is said to apply when all of the offences taken together constitute a single invasion of the same legally protected interest: see, for example Worthington [21]. I am not sure I understand precisely what this means. Read literally, it could, for example, mean that an assault (a crime against the person) and a theft (a property crime) committed against the same person at the same time and in the same place could never come within the 'rule'. I think that would be a strange result. If emphasis is placed on the phrase 'single invasion' I am not sure it adds much to the other formulations given currency in the authorities.
Because of the wide variety of circumstances in which the principle can arise it is not always easy to reconcile the way it has been applied in individual cases. But what can be detected in each case is an examination of the closeness of the interrelationship and the danger of double jeopardy in so far as punishment (not criminal liability) is concerned. In this respect, I think it is worth repeating what Wells J said in Attorney‑General v Tichy (1982) 30 SASR 84, 92-93:
It is both impracticable and undesirable to attempt to lay down comprehensive principles according to which a sentencing judge may determine, in every case, whether sentences should be ordered to be served concurrently or consecutively. According to an inflexible Draconian logic, all sentences should be consecutive, because every offence, as a separate case of criminal liability, would justify the exaction of a separate penalty. But such a logic could never hold. When an accused is on trial it is part of the procedural privilege to which he is entitled that he should be made aware of precisely what charges he is to meet. But the practice and principles of sentencing owe little to such procedure; what is fitting is that a convicted prisoner should be sentenced, not simply and indiscriminately for every act that can be singled out and brought within the compass of a technically identifiable conviction, but for what, viewing the circumstances broadly and reasonably, can be characterised as his criminal conduct. Sometimes, a single act of criminal conduct will comprise two or more technically identified crimes. Sometimes, two or more technically identified crimes will comprise two or more courses of criminal conduct that, reasonably characterized, are really separate invasions of the community's right to peace and order, notwithstanding that they are historically interdependent; the courses of criminal conduct may coincide with the technical offences or they may not. Sometimes, the process of characterization rests upon an analysis of fact and degree leading to two possible answers, each of which, in the hands of the trial judge, could be made to work justice. The practice of imposing either concurrent or consecutive sentences cannot avoid creating anomalies, or apparent anomalies, from time to time. What must be done is to use the various tools of analysis to mould a just sentence for the conduct of which the prisoner has been guilty. Where there are truly two or more incursions into criminal conduct, consecutive sentences will generally be appropriate. Where, whatever the number of technically identifiable offences committed, the prisoner was truly engaged upon one multi-faceted course of criminal conduct, the judge is likely to find concurrent sentences just and convenient.
It seems to me, with respect, this is an admirable distillation of the principle. But it cannot, as Wells J implicitly recognised in the third last sentence, stand alone as an immutable principle overriding other relevant considerations that arise during the exercise of the sentencing discretion in an individual case. There will be instances in which it is obvious that the interrelationship of multiple offences is so intimate that they can only be said to arise from a single course of criminal conduct. In those instances injustice can only be avoided by imposing concurrent terms. Not to do so would inevitably result in the offender being punished more than once for the same criminality. But in many cases the answer will not be nearly as easy to discern. This makes it important to understand the basic rationale for the principle. To repeat what I said earlier, the one transaction principle is one of many sentencing principles that the common law and statute prescribe as part of the proper functioning of the sentencing regime. In this respect I think it is timely to go back to some basic elements that underpin the notion of the sentencing discretion.
I doubt many judicial officers would disagree with the proposition that sentencing is one of the most difficult, if not the most difficult, task that they have to perform. In Weininger v The Queen [2003] HCA 14; 212 CLR 629 [50] Kirby J said:
At the outset I remind myself that sentencing is a most complex judicial function. It is not a mechanical task. Nor is it capable of being reduced to a mathematical process.
Comments to similar effect can be found in Ryan v The Queen [2001] HCA 21; (2001) 206 CLR 267 [144] (Hayne J). It has to be recognised that sentencing is not a mathematical task capable of being reduced to precise formulae. Similarly, save in cases where the legislature in clear and unambiguous language mandates to the contrary, care needs to be taken not to read into previous decisions (or legislation) the prescription of immutable rules and regulations. Prescriptions that could result in the 'the process of sentencing [becoming] any more technical than it already is' are to be avoided: Pearce v The Queen [1998] HCA 57; (1998) 194 CLR 610 [39].
The sentencing discretion does not fall to be exercised in a vacuum. Discretionary judgments require the weighing of elements, not the formulation of adjustable rules or benchmarks: AB v The Queen [1999] HCA 46; (1999) 198 CLR 111 [15] (McHugh J). Sentences are imposed for a specific offence (or offences) committed by an individual offender. But the sentencing process operates in a general policy framework to which both the common law and statute have contributed. Within the confines of the policy framework and the dictates of the common law and statute sentencing is essentially a matter of judgment to be exercised according to the facts of an individual case. The notion of melding the specific and the general was recognised by McHugh J in AB [14]:
Many, probably the large bulk of, sentences reflect compromises between conflicting objectives of sentencing. One objective is to impose a sentence that reflects adequate punishment for the culpability of the convicted person, having regard to the community's view concerning the need for retribution, denunciation, deterrence, community protection and sometimes vindication. Another objective is to impose a sentence, with or without conditions, that will further the public interest by encouraging and not discouraging the convicted person to renounce criminal activity and to re-establish himself or herself as a law-abiding citizen. Still another objective is that the sentence should reflect an allowance for those circumstances, personal to the convicted person, which call for mitigation. These objectives and others have to be achieved within a conceptual framework that requires that there should be parity between sentences, that the sentence should be proportional to the circumstances of the crime and that, where more than one sentence is involved, the total sentence should not exceed what is appropriate for the overall criminality of the convicted person.
While McHugh J was in dissent in AB I do not think there is any doubt about his description of the objectives of, and principles involved in, the sentencing process.
Against that general background how is the one transaction principle to be understood and applied? Save for the instances in which the interrelationship between multiple offences is so close that injustice can only be avoided by concurrency of terms, the answer will usually emerge from considerations of proportionality to or with the criminality of the offender's conduct viewed in its entirety. Looked at in this way, the one transaction principle and the totality principle are closely connected. A sentencing judge is obliged to impose an effective term that she or he judges to be appropriate for the overall criminality of the offender's conduct. Even where, on a strict and literal understanding of the one transaction principle, it might be said that the concurrency of terms can be justified, the need for proportionality might demand cumulative or partly cumulative terms.
A relatively recent illustration of the connection between the two notions is to be found in Johnson v The Queen [2004] HCA 15; (2004) 78 ALJR 616. The particulars to the ground of appeal contended that the court below had erred both in 'failing to order total concurrence in circumstances where the same actus reus gave rise to separate offences, thus misconstruing and/or misapplying the "one transaction" rule of sentencing' and in 'imposing an overall effective sentence which infringed the totality principle of sentencing'. The main import of Johnson is that it resolved the doubt as to whether, when the totality principle required adjustment to the length of multiple sentences, it was to be achieved by lowering individual terms or by using a combination of accumulation and concurrency. The Court indicated that either method could be employed. But in the context of this appeal Johnson is important for two other reasons. First, Gleeson CJ adopted the passage from Tichy that I have set out. Secondly, Gummow, Callinan and Heydon JJ repeated a passage from Pearce [40] which stresses the importance of proportionality in the context of sentencing for interrelated offences:
To the extent to which two offences of which an offender stands convicted contain common elements, it would be wrong to punish that offender twice for the commission of the elements that are common. No doubt that general principle must yield to any contrary legislative intention, but the punishment to be exacted should reflect what an offender has done; it should not be affected by the way in which the boundaries of particular offences are drawn. Often those boundaries will be drawn in a way that means that offences overlap. To punish an offender twice if conduct falls in that area of overlap would be to punish offenders according to the accidents of legislative history, rather than according to their just deserts.
Turning to the instant appeal, it is clear that the sentencing judge turned his mind to the one transaction principle when he dealt with the submission that all sentences should be made concurrent. His Honour rejected the submission and said that some of the offences involved different acts perpetrated at different times. He must have been referring to the three sexual assaults and the assault occasioning bodily harm because he went on to say that some of the offences, namely the aggravated burglary, the deprivation of liberty and the threat to kill, were interrelated 'and should be treated concurrently'. Whether those three offences were, strictly and literally, part of a single course of criminal conduct is open to conjecture. But in the end it does not matter. The appellant's complaint is directed to the accumulation of the sentences for two of the three aggravated sexual assault offences. Even if (and I should not be taken as accepting the validity of this proposition) counts 5 and 6 are properly to be taken as part of a single course of criminal conduct it does not follow that the sentencing judge was obliged to impose concurrent sentences.
And even if the sexual assaults and the assault occasioning bodily harm were properly to be regarded as arising from a continuous episode it was open to the sentencing judge to accumulate the counts if total concurrency of the sentences would result in a sentence that is an inadequate measure of the criminality involved. The real question is whether the total effective sentence was an appropriate response to total criminality involved in the appellant's conduct. If the appellant's contention that all terms should be served concurrently with that imposed for count 5 is good, it means that the total effective sentence should have been 8 years. With respect, the proposition that a term of 8 years is a proper measure of the criminality involved in the entirety of the appellant's conduct is entirely untenable.
In my view the sentencing judge did not commit any error adverse to the appellant in rejecting the proposition that the terms for counts 5 and 6 (and therefore, in reality, the terms for all seven offences) should be served concurrently. Ground 2 has not been made out.

Ground 1 ‑ Infringing the totality principle.

The totality principle ‑ general considerations

The gravamen of ground 1 lies in the contention that the total sentence of 16 years' imprisonment is disproportionate to the overall criminality of the offences or otherwise offends the totality principle.
The totality principle and the authorities in which it has been explained are well known. The principle has been described as having two limbs. First, a judicial officer sentencing an offender for a number of offences must ensure that the aggregation of the sentences appropriate for each offence is a just and appropriate measure of the total criminality involved. Secondly, the overall sentence should not be 'crushing' in the sense that it would destroy any reasonable expectation of a useful life after release: see the authorities collected in Pollock v The State of Western Australia [2009] WASCA 121 [24] - [25].
A phrase often used to describe the practical application of the totality principle is that the judge, having fixed terms for the individual offences, should stand back and 'take a last look' to ensure that the aggregate term properly measures the overall criminality involved and that it is not crushing. In my view this is an apt description of the process and is a prudent step that a judicial officer should take in finalising the task of sentencing for multiple offences.
The particulars proffered by the appellant in support of ground 1 can be categorised in five groups. First, the circumstances of the crime. This is directly relevant to the degree of criminality of the appellant's conduct and it also encompasses the effect on the complainant. Secondly, the plea of guilty and the question of remorse. Thirdly, the personal circumstances of the appellant. Fourthly, what is to be gleaned from an examination of sentences imposed in comparable cases. Finally, whether the sentence is relevantly crushing on the appellant. I will deal with each in turn.

The circumstances of the offences

An essential part of the sentencing exercise is to assess the criminality of the conduct that is involved in the offences for which the accused has been convicted. This is of particular relevance when considering the issue of totality: the total sentence must be judged against the gravity of the impugned conduct.
In this case the gravity of the offending conduct was severe. The sentencing judge described the offences as 'horrifying' and as 'falling into the most serious category of offending of this kind'. I agree with that characterisation of the appellant's conduct. The complainant was a 62‑year‑old woman who lived alone. She was entitled to feel safe and secure early in the morning inside her own home. Instead she had the sanctity of her home invaded, her liberty deprived and threats made to her life. She was exposed to physical sexual assaults of a brutal and violent nature that also involved degrading and humiliating treatment. She sustained physical injuries from the assaults, both from punches to her head and from the forceful sexual assault. She was left in her house bound, gagged and bleeding and was threatened with death if she moved. In a final departing act the appellant also stole the money from her purse.
The sentencing judge took account of the complainant's victim impact statement, which he said made harrowing reading. She was physically battered, subjected to the horror of having clothing stuffed in her mouth and a pillow put on her head so she could hardly breathe, sexually abused in a most degrading way and threatened with death. According to her victim impact statement she was left terrified, highly distressed, physically battered and emotionally destroyed as a result of the incident. The ongoing consequences that this incident has had upon this woman cannot be underestimated. She has recurring nightmares and fears being alone. She cannot return to her own home and has been forced, as a result, to put her home on the market at a significant financial loss. She lives with a constant sense of fear for her safety and is uncomfortable both out in public and amongst her friends. The authorities make the point that fear engendered by the brutality of the offences is a relevant consideration in assessing the gravity of cases such as this: see, for example, Cooper v The State of Western Australia [2009] WASCA 37 [41].

All members of society, especially those who live alone, are entitled to go about their lives with autonomy and privacy and with confidence that they will be safe and secure within their own homes. The appellant's conduct was a gross violation of this entitlement.
I have expressed agreement with his Honour's characterisation of the offences as 'falling into the most serious category of offending of this kind'. There is another way of expressing it; namely that these offences fall into the worst category of offences of their type. This is not to say that they are the worst. With the vagaries of the human condition and the propensity of some (thankfully a small number) to act with unspeakable barbarity it is usually possible to imagine worse circumstances. See Veen v The Queen [No 2] [1988] HCA 14; (1988) 164 CLR 465 at 478. The characterisation of these crimes as falling into the worst category is important for the disposition of this appeal. I will explain that comment later.
The innate seriousness of these offences raises a further issue. This is an instance where deterrence, both general and personal, was an important sentencing consideration. Deterrence is a much more difficult and complex question than some observers of the sentencing process appear to understand. This is especially so where the capacity for rational decision making is reduced by intoxication. That is not to clothe intoxication with an aura of legitimacy or to elevate its status as a mitigatory element, a matter with which I will deal shortly. Whatever the cautionary effect may be of a long sentence on the appellant personally the circumstances of the offences necessitated a strong message of general deterrence and this, in turn, demanded condign punishment.

Personal circumstances of the appellant

It is apparent that the sentencing judge struggled to find much in the personal circumstances of the appellant that would have a significant mitigatory effect. Counsel for the appellant submitted that insufficient consideration was given to the appellant's personal circumstances. The appellant was 30 years old when sentenced and cannot claim youth as an ameliorating factor. The facts that he had never been imprisoned and had never committed a violent or sexual offence prior to this conviction are factors to be considered but of limited weight. Most of the appellant's prior criminal convictions relate to alcohol and drug addictions and burglary offences committed to support his amphetamine habit. He claims to have ceased using drugs in 2003. But part of the circumstances leading to the commission of the offences involved self induced drug and alcohol ingestion. This may provide some explanation but it is not generally to be regarded as mitigating the offence because the offender may be regarded as morally responsible for his or her condition. An exception is where there is an condition that wholly or partly excused the taking of drink or drugs: Damiani v The State of Western Australia [2006] WASCA 47 [1] - [8], [41]. That is not the case here.
In the same vein, counsel for the appellant cited the separation from his de facto partner and its resultant stress as a mitigating circumstance warranting consideration by the court. This may explain his drinking and drug taking but does not in any way mitigate the appellant's commission of the offences. Rather the psychological report indicates the appellant has considerable underlying anger in the form of resentment or bitterness towards women and a resistance to change to meet what he considers to be the expectations of others. These features combined with a difficulty to express emotions through normal social interaction expose a disturbing attitude held by the appellant which affords little mitigating consideration.
Counsel for the appellant also submitted that the aggregate sentence did not appropriately reflect that the offences were spontaneous and not premeditated. The prosecution contended at trial that the appellant was familiar with the complainant's house having carried out work there. The appellant stated in the video record of interview that he knew the area well and had lived there most of his life. He also said that on the morning of the offence he waited and took a couple of pairs of women's underwear from the washing line and that he may have been waiting for 20 or 40 minutes before he heard the door open. In the video record of interview he was asked why he went into the house. He replied with words to the effect that in his then state of mind he went in 'basically to rape a woman'. It was also contended on behalf of the appellant that he had little recollection of the events. The sentencing judge remarked that he was not persuaded that this was the case.
Given those circumstances I doubt that the offences were, as submitted on behalf of the appellant, opportunistic or spontaneous. On the other hand there is no clear finding by the sentencing judge as to the extent to which they were premeditated. In any event, the circumstances of the offence speak for themselves and the appellant can take little comfort from the fact that there is no evidence of planning. In my view little weight can be given in mitigation to this submission.

The guilty plea and remorse

Counsel for the appellant also submitted that the sentencing judge 'did not sufficiently take into account' the appellant's early pleas of guilty and his shame and remorse. In the second record of interview with police the appellant said:
I've done a lot of stupid things in my life. I would prefer to have died last Wednesday than for this to happen. If I could take anything I've ever done back, this would obviously be it.
The author of the psychological report noted that the appellant accepted that he was guilty when presented with DNA evidence. The author goes on to say:
However, it is interesting to note that while he readily accepted responsibility when faced with such apparent irrefutable proof, it is also apparent from a number of comments that some degree of doubt remains. … While offering little remorse (ostensibly because he has no recollection of committing the offences), [the appellant] did provide a clear understanding of the potential effect upon the victim of the attack, describing it as 'abhorrent' and 'disgusting', and with some level of empathy when he acknowledged the woman would be devastated.
It is true that in the sentencing submissions some emphasis was placed on the appellant's lack of recollection of events. The author of the psychological report seems to have linked the issue of remorse with the degree to which the appellant declared a memory of events. It is clear that the sentencing judge read the psychological report and there is no reason to believe that he missed the passage set out above. This may explain why the sentencing judge made only passing reference to the question of remorse as a specific mitigating factor. Indeed, his Honour noted the submission that, due to intoxication, the appellant has no recollection of events but 'should be treated as 'truly remorseful and deeply ashamed'. His Honour seems to have rejected the proposition that remorse and shame entitled the appellant to much consideration.
It cannot be said that the sentencing judge overlooked the submissions of remorse. He took it into account but did not feel that he should give it much weight. In my view it was open to him to take that view. In any event I think that in the circumstances of this case it is difficult to separate considerations of remorse from those relating to the guilty plea.
Counsel for the appellant submitted that the sentence of 16 years' imprisonment did not take into account the appellant's fast-track pleas of guilty. The sentencing judge acknowledged the plea of guilty in the context of 'factors which go in your favour' of which 'there seems to be little to say'. He commented:
You have pleaded guilty to these charges and spared the complainant the ordeal of a trial, but clearly the forensic and other evidence against you was overwhelming and you were always going to be convicted.
This was followed, a short time later in the sentencing remarks, by this comment (which must be taken as applying to the submissions about remorse and shame as well as to the guilty plea):
I hear what's been said. There is not much in all of that which commends itself to me as being of significant mitigatory value.
Again, it is clear that his Honour was aware of the plea of guilty. What he does not say is whether he reduced the sentence because of the plea, and if so, in what numerical quantity.
Ordinarily, a plea of guilty is a mitigating factor: Sentencing Act 1995 (WA) s 8(1) and (2). If, because of a mitigating factor, a court reduces the sentence it would otherwise have imposed on an offender, the court must state that fact in open court: Sentencing Act s 8(4). The next question is what part, if any, the guilty pleas played in his Honour's thinking during the sentencing process.
The whole question of pleas of guilty in the criminal justice system was considered in detail in Moody v French [2008] WASCA 67; (2008) 36 WAR 393. Steytler P, Wheeler, McLure and Buss JJA, at [33] ‑ [38] analysed numerous authorities commenting on the proper treatment of guilty pleas. I have extracted a number of relevant propositions from that dicta. For the sake of economy I will not mention the decisions cited as authority for the respective propositions.
1.A plea of guilty will always decrease the culpability of the offender or decrease the extent to which the offender should be punished but this does not automatically translate into a reduction in sentence.
2.Although a particular factor (such as a plea of guilty) decreases the extent to which the offender should be punished other factors might so outweigh it that the court feels it necessary to impose the maximum sentence because, even allowing for the mitigating effect of that factor, the offence falls within the worst category of offences of its type.
3.It is not the law that a sentencing judge must exercise a discretion to provide a given reduction in sentence for a plea of guilty. If a reduction is properly available, the sentencing judge may provide for it.
4.Although it is not mandatory to reduce a sentence on account of a plea of guilty, it is well established that, in all but the most exceptional of cases, a plea of guilty will have that result.
5.It will necessarily be a very rare case in which, notwithstanding the mitigating effect of the plea, the circumstances of the offending behaviour are so serious that nothing less than the maximum sentence can be justified.
6.A plea of guilty may be taken into account in mitigation for the reason that a guilty plea evidences a willingness to facilitate the course of justice and not simply because the plea saves the time and expense of those involved in the administration of criminal justice.
7.Other mitigating features of a plea of guilty are that it is usually indicative of remorse and that it evidences an acceptance of responsibility.
8.Even in cases in which a plea of guilty is inevitable because of the strength of the prosecution case, it will ordinarily attract a discount because it nonetheless evidences a willingness to facilitate the course of justice and, perhaps, indicates an acceptance of responsibility.
9.Ordinarily, in this State, fast-track pleas of guilty attract a reduction in sentence of somewhere between 20% and 35%, depending on the circumstances.
10.In particular cases the reduction might be less although a reduction should not be so excessive as to undermine the accusatorial feature of the criminal justice system. The amount of the reduction is discretionary and sentencing judges must be accorded a wide measure of latitude.
11.Other than in an exceptional case some discount should be allowed even in a case in which the plea of guilty is unavoidable and unaccompanied by any real remorse or acceptance of responsibility.
I wish to mention two further matters in this respect. The first is by way of explanation of what is said in proposition 5 above. I do not think the reference to the 'maximum sentence' was intended to limit the sphere of operation of the proposition. Other items in the list, particularly propositions 4 and 11, indicate that other than in 'exceptional cases' a plea of guilty will usually result in some discount being afforded to the offender. This is a broad concept and ought not to be confined to cases of the most serious kind that might otherwise result in the imposition of the maximum sentence prescribed in the legislation.
The second point is a reflection of proposition 10: appellate courts must respect the discretion residing in the sentencing judge and must not be too quick to discern error by, for example, an overly strict and literal reading of what was said (or not said) during sentencing remarks. So it is, then, that a judge is not obliged to specify the percentage by which a term has been reduced to reflect the guilty plea: Wong v The Queen [2001] HCA 64; (2001) 207 CLR 584 [74] ‑ [78]; Clarkson v The State of Western Australia [2006] WASCA 250 [31]. Nor is a failure to comply with the Sentencing Act s 8(4) by omitting to state in open court that a reduction has been made, an appealable error. It is a failure to implement a public policy designed to help the person being sentenced (and those with an interest in the proceedings) to understand how the result has been arrived at. But non‑compliance with s 8(4) does not invalidate the sentence: Moulds v The Queen (Unreported, WASC, Library No 980147, 4 March 1998) (Malcolm CJ) 6.
The entry by an accused person of a plea of guilty and the reasons behind her or him taking that course of action are important considerations in the sentencing process. In my view it is highly desirable that sentencing judges explain with some care how they have taken the plea (and associated questions such as remorse) into account and, if they have decided not to afford any reduction from the sentence, the reasons for taking this course. The explanation need not be elaborate and it need not canvass every permutation and computation arising from the factual circumstances. It should, however, give enough information to satisfy the public policy goal to which I have referred. But the absence of such an explanation does not, of itself, demonstrate appealable error. This is quintessentially a question of substance over form: did the sentencing judge reduce the sentence by virtue of the plea or, if not, was that course of action justified in the circumstances of the case?
In my view, and as a matter of substance, his Honour made no reduction for the guilty plea. There are three factors that lead me to this conclusion. First, the sentencing judge did not make express reference to his intention to reduce the sentence on account of the plea. I repeat, this is not, itself, an appealable error but in combination with the other factors I am about to mention it takes on added significance. Secondly, he mentioned the plea and referred both to the utilitarian factor (saving the complainant from having to give evidence) and to the inevitability of a conviction. But he then said: 'There is not much in all of that which commends itself to me as being of significant mitigatory value'. The utilitarian aspect is an ameliorating consideration. As a matter of logic, the entry of a plea when a conviction is likely, is not. His Honour's comment suggests that he regarded the strength of the case against the appellant as an overwhelming consideration nullifying the moderating effect of the utilitarian factor.
The third factor is the length of the term ultimately imposed. For the purpose of this explanation I will concentrate on the total effective sentence rather than the terms for the individual counts. His Honour imposed a total term of 16 years. As a matter of mathematics, this means that the starting point before the one‑third reduction mandated by the sentencing legislation then in force was 24 years. Had his Honour afforded a discount before arriving at the figure of 24 years, the starting point would have been as reflected in the following table.

Percentage discount for guilty plea

Starting point

Interim point after discount but before one‑third reduction

Effective sentence

25%

32 years

24 years

16 years

20%

30 years

24 years

16 years

10%

26 years and 8 months

24 years

16 years

In compiling this table I am not to be taken as suggesting that the sentencing judge was obliged to apply a discount of any one of these three percentages or any alternative figure. Nor should I be taken as overlooking the warning given in myriad authorities (and repeated in these reasons) that sentencing is not a mechanical task and cannot be reduced to a mathematical process. However, as will be seen in the next section, those starting points are very high when compared with the sentencing experience to be gleaned from other cases. His Honour is an experienced criminal judge and in my view it is unlikely he would have had in mind starting points of that magnitude before applying a discount for the guilty plea.
If a discount were to be given its size would have reflected the circumstances in which it was entered. The plea was not 'fast‑track' in the technical sense as it was not made at the first available opportunity. It was entered after several court appearances and after a preliminary forensic report had been delivered. Accordingly, the sentencing judge could not have been criticised for affording a reduction at the bottom end of the oft‑cited 20% ‑ 35% range or even lower.
If no discount was given, it seems to me to be difficult to justify that result. The complainant was 62 years of age and had the most awful treatment (of a most intimate nature) meted out to her. The effect of her having to relive the trauma and to disclose those details in an open forum such as a trial is obvious. In my view, regardless of the strength of the prosecution case and even ignoring other aspects of the utilitarian factor, this matter alone would have required some discount. In addition, even if the appellant's claims of remorse are viewed with scepticism, comments in the second police interview are indicative of acceptance of responsibility.
Of course, the ground of appeal does not allege, as a determinative error, the failure to apply a discount for the plea. Rather, it is one of the particulars advanced in support of the contention that the term of 16 years offends the totality principle. I will leave it at that for the moment and return to the issues raised by the plea after dealing with the other particulars.

Comparable Cases

The written submissions lodged on behalf of the appellant referred to four cases said to be comparable and which support a conclusion that the overall sentence was disproportionate to the gravity of the offending conduct and was therefore manifestly excessive. In oral submissions reference was also made to a case decided after the appeal papers had been lodged. The task of comparing cases is notoriously difficult given the wide range of circumstances in which crimes of the same legislative description can be (and are) committed. Nonetheless, it is a task that confronts appellate courts in many, perhaps most, appeals against sentence and it cannot be avoided here. What has to be borne in mind is that this exercise is useful only, and to the extent that, previous cases are truly 'comparable' with the circumstances of the case under consideration in the appeal.
Like this case, the most serious crimes committed by the offenders in the cases cited on behalf of the appellant involved aggravated sexual penetration without consent. Before turning to those decisions it may be as well to look at the general approach taken in sentencing for crimes of this nature.

In The State of Western Australia v Akizuki [2008] WASCA 267 Steytler P conducted a review of a large number of cases involving sexual penetration. He said at [68]:
As might have been anticipated, this review of the cases reveals that the circumstances of sexual offending, and of sexual offenders, are almost infinitely variable. That, in turn, means that the sentence imposed in one case can provide only very limited guidance in deciding what sentence should be imposed for a similar offence in another case. However, some conclusions can be drawn, as follows:
(1)An average starting point for a case of penile penetration of the vagina without consent, absent circumstances of aggravation, is in the order of 7 years' imprisonment under the former sentencing regime, or around 4 years and 8 months' imprisonment under the transitional regime. That starting point takes no account of any factors in mitigation.
(2)Because the circumstances of sexual offending and sexual offenders are so variable, nothing will be achieved by specifying a range of sentences customarily imposed. The range of potential aggravating features is so huge that features of that kind can either dramatically increase the sentence imposed (bearing in mind that the maximum sentence for an aggravated offence is 20 years' imprisonment: s 326 of the Criminal Code) or have little or no effect on the sentence imposed. The range of potential mitigating factors is at least equally extensive. They might result in a very large reduction in sentence or little or no reduction.
(3)Nor will anything be achieved by specifying a different starting point for each category of sexual penetration without consent. It should not be assumed that one form of sexual penetration is necessarily more, or less, serious than another. As Wheeler JA pointed out in C v The State of Western Australia[2006] WASCA 261 [35], there is no 'hierarchy of sexual penetration'. For example, although digital penetration will ordinarily be less serious than penile penetration, that is not inevitably so. It might, in particular circumstances, be no less serious or even more serious. The seriousness of every offence of unlawful sexual penetration must be determined by its own individual circumstances: C [35] (Wheeler JA); Cavill [266] ‑ [267] (Miller JA).
It is taken from Steytler P's observations that there is no hard and fast rule when comparing cases in order to quantify sentences imposed. Each case must ultimately rest on its own facts and circumstances. The point made by Steytler P in item (2) is of some significance in the context of this appeal: see also Clarkson [25].
In Rigby v The State of Western Australia [2005] WASCA 134 the 28‑year‑old appellant entered the home occupied by a 36‑year‑old woman and her 3‑year‑old daughter in the early hours of the morning. The complainant was woken by noises in her kitchen and when she went to investigate was held with a gloved hand over her mouth to suppress her screams, which had woken her 3‑year‑old daughter. The appellant locked the child in another room and then sexually assaulted the complainant. He inserted his erect penis into her vagina from behind and penetrated her until he ejaculated, then threatened that she would be 'a very sorry girl' if she contacted the police. The appellant was apprehended after his DNA was found in the complainant's vagina. He pleaded guilty to one count of aggravated burglary, two counts of deprivation of liberty and one count of aggravated sexual penetration. He was sentenced to a head sentence of 9 years 4 months' imprisonment and was made eligible for parole. His application for leave to appeal was refused.
Rigby is not a comparable case. There was only one count of sexual penetration and he was not charged with a threat to kill or with assault occasioning bodily harm. In addition, the aggravating circumstance of the age of the complainant was not present.
In Woodley v The State of Western Australia [2008] WASCA 92, the appellant was found guilty after trial of one count of aggravated burglary, one count of deprivation of liberty, one count of assault occasioning bodily harm and one count of sexual penetration without consent. In this case the appellant was the complainant's estranged husband against whom she had obtained a violence restraining order. In the early hours of the morning, he drove with two co‑accused females to his ex‑wife's home. He was armed with a knife and pair of scissors. He left these weapons in the car while he entered the complainant's home, assaulted her and continued the assault while he forced her into the car. He then drove her while detained in the car to another house which she was forced to enter and where she was sexually penetrated. He was sentenced to a total effective sentence of 6 years and 8 months' imprisonment which was upheld on appeal.
While the fact that Woodley involved domestic violence (a serious issue in itself) the fact that there was only one count of sexual assault and the age of the complainant mean that the circumstances are not relevantly comparable with this case.
In Thorn v The State of Western Australia [2008] WASCA 36 the appellant was convicted on a plea of guilty to one count of aggravated burglary, two counts of unlawful detention, two counts of aggravated sexual penetration without consent and one count of attempted aggravated sexual penetration without consent. The appellant severed an external telephone wire at the rear of the complainant's home before cutting open a flyscreen and entering the home by lifting a closed window. He entered the complainant's bedroom and produced a knife and told her not to scream. The complainant was in bed with her daughter. The appellant held the knife to her face and stroked it down her daughter's face and up the complainant's inside leg while instructing her not to scream and to comfort her daughter. He removed the complainant's trousers and attempted to penetrate her vagina with his penis, then successfully did so until he ejaculated. He then left the bedroom and demanded the complainant follow him alone into the lounge room where he again penetrated her vagina with his penis. Before leaving he told the complainant not to leave the house as he had friends outside with knives. The appellant's identity was not detected for about 9 years until it was exposed by DNA evidence obtained as a result of his conviction for a stealing offence. He was sentenced to a total effective head sentence of 7 years and 6 months' imprisonment which was upheld on appeal.
While Thorn has some points that are similar to this case the offences there seem not to have involved multiple acts of penetration each escalating in violence. Nor did it include a threat to kill and nor was the age of the complainant an aggravating circumstance. In addition, the offender suffered from a recognised mental disorder, although the offences were not said to have been causally connected to the condition. I do not think that Thorn is relevantly comparable.
The remaining cases referred to by counsel for the appellant, namely Ugle v The State of Western Australia [2007] WASCA 199 and Cooper v The State of Western Australia [2009] WASCA 37 require more detailed consideration.
Ugle involved a 36‑year‑old man who offended against a female complainant of an undetermined age, though not of an age invoking circumstances of aggravation to the charges. Early one morning he knocked on the complainant's window offering her drugs which she refused. He asked to use the toilet, pushed his way past the complainant and entered her house. He pushed her into her bedroom and threatened her with a clothes iron before forcing her to masturbate him. He then threatened her with a crochet needle, pushed her onto her bed, performed cunnilingus then penetrated her with his penis while choking her with his hands around her neck. After he had ejaculated across her abdomen he made her shower then forced her back into the bedroom, made her kneel and penetrated her from behind. He demanded money, assaulted her with the iron and tried to choke her with its cord. After threatening to kill her if she ran or called the police, he stole household items and fled the scene.
The offender absconded from police custody and again while on bail after his initial re‑apprehension. When he was formally arraigned he pleaded guilty to one count of aggravated indecent assault, three counts of aggravated sexual penetration without consent and one count of aggravated burglary. He had a history of drug use and was affected by alcohol and amphetamines at the time of these offences. He also had a history of past violent offending, including some sexual offences committed when he was 18 years of age. He was sentenced to 11 years and 1 month's imprisonment, which was in reality 11 years and 4 months due to a calculation error. The sentence was upheld on appeal.
In Cooper the complainant was a 77‑year‑old widow who lived alone. The appellant was her 36 year old next door neighbour. In the early hours of the morning the complainant was woken by the presence of a male person in her bed. The intruder was armed with a screwdriver. The intruder got on top of her and when she resisted he forcibly struck her across the right and left side of the forehead. The complainant believed she lost consciousness for a time. The intruder then sucked her breasts and sexually penetrated her vagina with his fingers, her anus with his penis, her mouth with his penis, then her vagina with his penis.
The assault ended when the complainant told the intruder that her sons would soon be arriving and he left at about dawn. The complainant suffered pain which caused her to scream during the sexual assault. She suffered bruising and abrasions to the face, a laceration to her finger, bruising and abrasions to an arm and bruising and lacerations to the vagina. DNA evidence matched that of the appellant's. The appellant denied being the assailant and the matter went to trial. He was charged with one count of aggravated burglary, one count of aggravated assault occasioning bodily harm, one count of aggravated indecent assault and four counts of aggravated sexual penetration without consent. He was convicted and sentenced to 12 years' imprisonment. His subsequent appeal against sentence was dismissed.
From this recitation of the facts it can be seen that there are features tending to make the cases comparable. The nature and number of sexual assault counts are similar. The offender in Ugle had a more significant criminal history (including sexual and violence offences) than did this appellant. Though the guilty plea saved the matter from going to trial, it was made neither early nor at the first opportunity. On the other hand the complainant was not of an age that demanded the offences be considered under circumstances of aggravation. Further, the circumstances in which the offender in Ugle gained entry to the complainant's home may not have been as confronting as those visited on this complainant.
It has to be said that in some ways the circumstances in Cooper were more serious than those relevant to the appellant's case. The offender in Cooper could lay no claim to leniency on account of a plea of guilty. The fact that he was known to the complainant cannot have helped his cause. In addition to the four counts of aggravated sexual penetration without consent there was a charge of aggravated indecent assault. Apart from the similar (although not identical) number of sexual assault counts there were some other points of similarity. Like the appellant, the offender in Cooper did not have a significant prior criminal history. In both instances the complainants were of an age regarded as a circumstance of aggravation.
There are, I think, two particular features that justify the characterisation of the appellant's conduct as more serious than that in Cooper. First, Cooper did not involve threats to kill, either as substantive offences or as circumstances of aggravation. Secondly, the appellant bound and gagged the complainant, causing her distress and difficulty in breathing. When he ran from the premises he left the complainant in that state. The offender in Cooper placed a doona over the complainant's face, apparently to avoid detection, but he did not restrain her in the same way.
If and to the extent that Ugle, Cooper and this case are relevantly comparable, what are the sentences that fall to be measured? In Cooper no question of a discount for a guilty plea arises. I have indicated a view that the appellant's sentence was not reduced to recognise the plea. Ugle was afforded a 10% discount because his plea came at a late stage and after he had absconded on two occasions. To make the sentences comparable, the sentence in Ugle would have to be adjusted to remove the effect of the 10% allowance. The result is reflected in the following table. Again, the sentences reflect the sentencing regime as it applied in October 2008.

Case

Effective sentence

Adjustment to not guilty status

Starting point before one‑third reduction

Ugle

11 years and 4 months (corrected)

12 years and 8 months

17 years and 1 month

Cooper

12 years

12 years

18 years

Royer

16 years

16 years

24 years

The purpose of comparing cases is to identify, if one exists, a range of sentences applicable to the type of offences in the case under consideration. One purpose of the exercise is to facilitate the sentencing objective that there should be parity between sentences and consistency in the sentencing process. In my view if Ugle stood alone there are sufficient points of distinction between this case and Ugle to lead to the conclusion that, by comparison with that offender's sentence, the term imposed on the appellant is not necessarily excessive.
But in my view it is simply not possible to reconcile the sentences imposed in Cooper and in this case. It may well be that the offender in Cooper, and perhaps also Ugle, were fortunate. If Cooper and Ugle are indicative of a range of appropriate sentences I would be forced to the conclusion that the sentence imposed falls outside it. The 'comparable cases' for which a 'range' is sought are those involving serious sexual offending committed in the course of a home invasion and with significant aggravating circumstances, in particular the advanced age of the victims. Whether or not two decisions provide a sufficient platform from which to identify a 'range' is problematic. It must also be remembered that even where there is a range, a sentence falling outside the range will not necessarily be overturned. A 'range' of sentences identified as appropriate for particular offences is not prescriptive or mandatory and the term imposed for a crime may fall outside the upper end of the range if the seriousness of the criminal conduct warrants it: Abbott v The State of Western Australia [2007] WASCA 105 [16] ‑ [17].
That having been said, if the sentences are looked at without any discount for a not guilty plea, the difference of 3 years and 4 months (Ugle) and 4 years (Cooper), from the term imposed on the appellant is very significant. This is especially so given the exponential effect of a divergence as the length of sentences increases. It is not easy to say that such a result honours the sentencing objective that there should be parity between sentences and consistency in the sentencing process.
The difficulties become even more pronounced if, contrary to what I said in the preceding section, the sentencing judge is taken to have made an allowance for the guilty plea. Suppose, for the sake of argument, his Honour had given a discount of 10%. This would mean, as between Cooper and the appellant, the difference in the starting point was 7 years and 10 months. As between Ugle and the appellant (reverting to the term imposed in Ugle of 11 years and 4 months) the difference in the effective sentence was 4 years and 8 months.
I will give further consideration to the relevant disparity in the next section.

Does the sentence offend the totality principle?

The State conceded in its concluding submission that the aggregate sentence imposed was severe. In both Ugle and Cooper, the reasons for decision contain comments to similar effect about the sentences under consideration in those cases. It has to be acknowledged that the term imposed on the appellant is a sentence in full measure. However, the critical question in relation to the first limb of the totality principle is whether, after allowing for mitigating circumstances, the total sentence exceeds what is appropriate for the overall criminality of the convicted person.
It has to be borne in mind that this sentence was handed down on 22 October 2008, before the coming into effect of the Sentencing Legislation (Transitional Provisions) Amendment Act 2008 (WA) (the 2008 Amendment Act). It follows that the impact of the totality principle on the effective term has to be assessed in accordance with the sentencing regime then in operation. I will have more to say about the 2008 Amendment Act a little later.
In my view, and notwithstanding the horrific nature of the circumstances of the crimes, the total term of 16 years was manifestly excessive and offended the totality principle. I say this for two reasons. First, it appears to have been arrived at without giving any, or sufficient, weight to the appellant's pleas of guilty. In that respect there is nothing I wish to add to what I have said under the heading 'The guilty plea and remorse'. Secondly, the difference between the term of 16 years and the effective terms imposed in Ugle and Cooper is so great (looked at from the perspective of the sentencing regime in force in October 2008) as to raise a serious issue as to whether the objective that there should be parity between sentences and consistency in the sentencing process has been complied with. I have put it in this way because I am not sure whether, strictly speaking, those two cases establish a 'range'. But there are enough points of similarity (especially between Cooper and this case) to require some consideration of the question whether the difference in the length of the terms amounts to a relevant and unacceptable disparity.
It was also submitted that the 16 year term would have a crushing impact on the appellant. This would offend the second limb of the totality principle. The appellant was 30 years of age at the time of his trial. He has been declared eligible to be considered for parole. By the time he comes to be released he will be about 44 (if granted parole) or 46 (if he serves the full term). The question is whether 16 years is a crushing term of imprisonment which would destroy any reasonable expectation of a useful life after release.
It has to be accepted that the full bloom of youth and early adulthood will have passed by the time the appellant comes to be released. But that is a function of the stage of his life when he committed the offences. It cannot be said that, at 44 or 46, a person is necessarily past their prime and incapable of engaging in what life has to offer. But indications are that he retains solid family support. He will also have the opportunity to engage in educational and vocational programmes that could enhance his prospects on release.
He will also have the opportunity to address the issues that are documented in the pre sentence and psychological reports and by choosing to participate in programmes available in the prison system his chance of reform and rehabilitation will be increased. The pre‑sentence report recommends that the appellant engages in the counselling processes available within the prison system to address substance abuse and emotional management. The psychological report states it is likely that he will be assessed for placement upon an appropriate sex offender treatment programme. These programmes if undertaken could enhance his prospects of rehabilitation and an earlier return into the community. They could afford a considerable measure of hope and encouragement for a successful return. Most of these matters are in the appellant's own hands.

The complainant said that the appellant then took her jacket off and pulled her arms behind her back. Her wrists were tied together. She was then thrown onto her back and another pillow was placed over her face. She then heard the appellant rummage through her bedside drawers. The pillow was still over her face, so she could not see what was happening. Suddenly she felt something inside her vagina. Her description of what then occurred was as follows:
Whatever he used, the pain was immense. So much worse than before (and that was bad enough); it is indescribable. I think it may have been his fingers, but because of the pain, it may have been something else.
If it were his fingers, it wasn't one or two.
I could tell it wasn't his penis.
A short time later, the complainant's vagina was penetrated by the appellant's penis. She described the incident as follows:
When he stopped doing this, I think he must have got partially undressed, as a short time later I felt something in my vagina which I can definitely say was a penis.
I felt him trying to push it in to my vagina but he couldn't get it in. I could tell his penis wasn't erect.
...
He had his penis inside my vagina for about 2 or 3 minutes. While he had it inside me, he was doing a sexual motion, in that he was moving his hips and penis back and forth.
I cant [sic] be exactly sure, but I think he may have ejaculated inside my vagina. I say this because just before he removed his penis, he pushed really hard and grunted.
The complainant said that after the appellant removed his penis from her vagina, he took the pillow away from her face. She had her eyes closed. She heard the appellant shout, 'Bitch' and felt two forceful punches. One was to the right side of the jaw and the other to the left side of the head. The appellant then got off the bed, put the pillow back over the complainant's face and said, 'Don't move or Ill [sic] kill you'.
The complainant heard the appellant at the side of the bed and thought that he was getting dressed. The complainant was on the bed naked, with her hands tied behind her back and a pillow over her head. The appellant said to her, 'Where's your money?' The complainant said that her money was in a bag in the kitchen. The appellant then left the bedroom, but came back and told the complainant not to move for at least five minutes or he would kill her. The complainant said that she responded, 'I promise I wont [sic] move'.
The complainant remained where she was for what she estimated to be about 10 minutes. During this time, she managed to push the cloth from her mouth and she eventually got off the bed. She could not untie her hands, but she could move them to the side. She picked up the telephone and, after finding her glasses, managed to ring her daughter. In due course, the complainant's daughter arrived and shortly afterwards a police woman came to the house. The complainant was taken to the Busselton hospital for examination and treatment.
The appellant stole $200 from the complainant's purse. He then ran from her address to his mother's house, which was a short distance away. On 4 June 2008, he was located at his place of employment and taken to the Busselton police complex, where he participated in a video record of interview. He at first denied the events to which I have referred. In the course of a second video record of interview, he made a number of admissions.

Sentencing

The sentencing judge said that the facts of the matter were not in dispute and were as outlined by the prosecution. He accepted and adopted what the prosecutor had said in that respect.
After stating the facts, the sentencing judge noted that the appellant claimed to have no memory of the incident. The appellant said that he was under the influence of alcohol and Ritalin, having made up a solution from Ritalin tablets and injected himself with the solution. The sentencing judge doubted that the appellant was unable to recall anything of the offences he had committed. He said that, despite having invited the appellant's counsel to point to any evidence justifying such a conclusion, he was still unable to be persuaded of that claim.
During the course of sentencing submissions, counsel for the appellant submitted that the appellant's next recollection after injecting Ritalin tablets (presumably a reference to the solution) was waking up on the couch of his mother's house mid‑morning. Counsel said that the appellant 'fully accepts he committed the offence[s], obviously from what police told him the evidence was when he had been interviewed and because of his own lack of memory of the night in question'.
The sentencing judge concluded that the mixture of alcohol and Ritalin taken by the appellant may well have led to disinhibited behaviour and agitation on the appellant's part, but noted that in the first video record of interview the appellant had denied being drunk or being intoxicated, and in the second video record of interview admitted a number of specific acts in significant detail. His Honour then concluded:
As I say, I am not persuaded that you truly have no recollection of these events. If that was the case, I think it more likely that you would have volunteered to the police at an earlier stage that you had no memory and you would not have so readily agreed with some of the horrifying detail that was put to you by the police when questioning you.
The sentencing judge then turned to matters personal to the appellant. He noted that the appellant was 30 years of age and had been in a number of relationships. One, in which he had been engaged for some three years, had terminated just prior to the commission of the offences.
The sentencing judge also noted the appellant's work history and his mental health. In relation to the latter, the appellant had been referred for psychological help to overcome difficulties and stresses in his relationship.
The sentencing judge also referred to the appellant's history of substance abuse. His Honour accepted that this would have had an effect upon the appellant's mental wellbeing.
The sentencing judge noted that the appellant had a record of convictions. There was, however, no record of convictions for any sexual offences.
The record revealed a conviction for burglary and committing an offence on 29 October 1996, convictions for burglary and committing an offence (three counts) on 30 August 2002 and a conviction for burglary and committing an offence on 18 August 2003. There were other offences which included stealing, fraud, damage, possession of a prohibited drug and breach of bail.
The sentencing judge considered that there was little to be said in favour of the appellant, apart from his pleas of guilty. These had spared the complainant the ordeal of a trial, although the sentencing judge thought that the evidence against the appellant was overwhelming and that he was 'always going to be convicted'.
A plea of guilty is a matter properly to be taken into account in mitigation of sentence. As Gaudron, Gummow and Callinan JJ said in Cameron v The Queen [2002] HCA 6; (2002) 209 CLR 339, at [11]:
It is well established that the fact that an accused person has pleaded guilty is a matter properly to be taken into account in mitigation of his or her sentence. In Siganto v The Queen [(1998) 194 CLR 656 at 663 ‑ 664 [22], per Gleeson CJ, Gummow, Hayne and Callinan JJ] it was said:
'a plea of guilty is ordinarily a matter to be taken into account in mitigation; first, because it is usually evidence of some remorse on the part of the offender, and second, on the pragmatic ground that the community is spared the expense of a contested trial. The extent of the mitigation may vary depending on the circumstances of the case.'
It should at once be noted that remorse is not necessarily the only subjective matter revealed by a plea of guilty. The plea may also indicate acceptance of responsibility and a willingness to facilitate the course of justice.
The sentencing judge pointed up one of the problems associated with the appellant's pleas of guilty. He said:
It is not suggested, nor could it be, that you were not responsible for your actions and you must now face the consequences of what you have done. It was said, I think, on your behalf that because you claim to have no recollection of these events and because you had taken alcohol and Ritalin you should be regarded in some way as having acted out of character and that now you have come to accept what occurred you should be treated as truly remorseful and deeply ashamed.
I hear what's been said. There is not very much in all of that which commends itself to me as being of significant mitigatory value.
The sentencing judge was correct to reach this conclusion. The appellant's pleas of guilty certainly incorporated a willingness to facilitate the course of justice and an acceptance of responsibility, but it is difficult to see how it could be said that the appellant was remorseful. He claimed to have no recollection of the events that had occurred.
The sentencing judge turned to the circumstances of the appellant's offences. He said that the complainant was entitled to feel safe and secure in her home early in the morning, but instead was violated by the appellant, threatened with death and physically assaulted. She was robbed, left terrified, highly distressed, physically battered and emotionally destroyed. The sentencing judge made reference to the complainant's victim impact statement and said that it made 'harrowing reading'. His conclusion was that the brutality of the attack upon the complainant, the violence of it and the degrading and humiliating treatment to which the appellant subjected the complainant justified a conclusion that the offending should be described as falling into the most serious category of offending of its kind.
The sentences which were imposed were as follows:

Aggravated burglary	5 years' imprisonment
Deprivation of liberty	3 years' imprisonment
Threat to kill	3 years' imprisonment
Aggravated digital penetration of the vagina	8 years' imprisonment

Aggravated digital penetration of the anus	8 years' imprisonment
Aggravated penile penetration of the vagina	8 years' imprisonment
Assault occasioning bodily harm in circumstances of aggravation	2 years' imprisonment

The sentencing judge concluded that the offending could not be considered to be part of 'the one transaction'. His Honour said:
The offending here involved in part different acts committed at different times, even though closely related in time. Of course, counts 1, 2 and 3 are interrelated and should be treated concurrently, but as to the other offences the subject of the indictment, the decisions that you made to commit them were deliberately made by you discretely and should not be treated as part of the one transaction.
The sentencing judge then considered that the seriousness of the offending demanded a degree of accumulation. The terms of 8 years' imprisonment imposed in relation to counts 5 and 6 on the indictment were ordered to be served cumulatively, but all other sentences were ordered to be served concurrently with the cumulative terms. The end result was that the appellant was sentenced to imprisonment for 16 years.

Grounds of appeal

Ground 1

Ground 1, including its particulars, is in the following terms:
GROUND 1
1.The aggregate sentence of 16 years imprisonment infringed the totality principle having regard to the overall criminality involved in the various offences viewed in their entirety and all the circumstances of the case, including those personal to the Appellant.
Particulars
(a)The Appellant's fast track pleas of guilty.
(b)The Appellant's shame and remorse.
(c)The Appellant's cooperation with investigating police.
(d)The Appellant's limited criminal record with there being no prior sex offences, or offences of violence.
(e)The Appellant having never been imprisoned before.
(f)The Appellant committing the offences under the influence of a cocktail of Ritalin and alcohol.
(g)The offences being opportunistic and not pre-meditated.
(h)The Appellant had not consumed illicit drugs and had not consumed drugs prescribed to others for a period of 5 years before the commission of the offences.
(i)The Appellant's good employment history and his endeavours to address his behavioural and mental health problems through seeking professional help prior to the offences occurring.
(j)The Appellant's separation from his long-time defacto partner a week prior to the offences occurring.
(k)The appellant's age of 30, his prospects of rehabilitation and the crushing impact of a 16 year term of imprisonment.
(l)The term of 16 years imprisonment was manifestly excessive having regard to sentences imposed in respect of comparable crimes.
This ground is concerned with the totality principle. It 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) 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 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 the present case, it is contended (inter alia) that the aggregate sentence of 16 years' imprisonment did not sufficiently take into account the appellant's early pleas of guilty, his remorse and his co‑operation with police. Further, it is said that the sentence did not reflect the fact that the appellant had no prior convictions for sexual offences or violence.
I have already indicated that the sentencing judge questioned the extent of the appellant's remorse. Counsel for the appellant contends that the appellant's statement in his second video record of interview is illustrative of considerable remorse. That statement was to the following effect:
I've done a whole lot of stupid things in my life. I would prefer to have died last Wednesday than for this to happen. If I could take anything I'd ever done back, this would obviously be it.
However, the statement needs to be considered in the light of the submission made on behalf of the appellant that he had no clear recollection of what had occurred.
Nevertheless, even given that the appellant's pleas of guilty incorporated an element of remorse, the fact remains that the offences committed by the appellant were at the highest end of the range of seriousness. No challenge is made to any individual sentence, but only to the aggregate sentence imposed.
Although it is contended that the offences were spontaneous and not premeditated, there were aspects of the case which told against any suggestion that the offences were entirely spontaneous. In his second video record of interview, the appellant admitted that he may have waited for approximately 20 ‑ 40 minutes before hearing the back door of the house open. He also said that he had taken underwear from the washing line. It may be that the appellant had not sat down and planned the events that occurred, but the evidence points to a degree of targeting of the complainant as a victim and tells against any submission that the offences were entirely spontaneous.
Although great stress was placed by counsel for the appellant upon matters personal to the appellant, the dominant sentencing considerations in relation to the range of offences committed by the appellant were punishment of the offender and specific and general deterrence: Thorn v The State of Western Australia [2008] WASCA 36 per Buss JA (Wheeler and Miller JJA concurring), at [49].
The purposes of criminal punishment are starkly raised in this case. Those purposes were set out by Mason CJ, Brennan, Dawson and Toohey JJ in Veen v The Queen [No 2] [1988] HCA 14; (1988) 164 CLR 465, at 476, in the following terms:
The purposes of criminal punishment are various: protection of society, deterrence of the offender and of others who might be tempted to offend, retribution and reform. The purposes overlap and none of them can be considered in isolation from the others when determining what is an appropriate sentence in a particular case. They are guideposts to the appropriate sentence but sometimes they point in different directions.

In the present case, deterrence of the offender and of others who might be tempted to offend weighs heavily in the sentencing process. There is also an element of retribution which cannot be overlooked.
Counsel for the appellant placed reliance upon the number of cases where substantial sentences have been imposed for combined offences which included offences of sexual assault. The first of these was Ugle v The State of Western Australia [2007] WASCA 199, where an aggregate sentence of 11 years 1 month was imposed on charges of indecent assault whilst armed with an offensive weapon, sexual penetration without consent whilst armed with an offensive weapon (two counts), sexual penetration without consent and with bodily harm, and aggravated burglary. Owen JA (with whom Wheeler JA agreed) concluded, at [42], that the appellant's conduct was at the high end of offending for the type of offences in question. His Honour said:
The sentencing judge, rightly in my view, characterised the appellant's conduct as at 'the high end of the offending for this type of offence'. Quite apart from the home invasion and thefts, there were two separate acts of sexual penetration committed in a violent and demeaning manner and resulting in physical, as well as emotional harm. The appellant hit the complainant with an iron and wrapped the cord around her neck causing bruising and other injuries. As her Honour also noted, the appellant 'ruined the life of another human being'. In light of the analysis of other cases it has to be acknowledged that this is a sentence in full measure: it is at the upper end of the range of sentences that could properly have been imposed. But given all of the circumstances, I do not think it is outside the available range.
In the course of his judgment in Ugle, Owen JA reviewed a number of the relevant cases. They included R v Ogilvie (Unreported, WASCA, Library No 960643, 8 November 1996), Krencej v The Queen [1999] WASCA 20, Vilai v The Queen [1999] WASCA 275, Narrier v The Queen [2000] WASCA 86; (2000) 111 A Crim R 405, Collins v The Queen [2002] WASCA 142, The State of Western Australia v Miller [2005] WASCA 53; (2005) 30 WAR 38, Rigby v The State of Western Australia [2005] WASCA 134 and The State of Western Australia v Turaga [2006] WASCA 199. Owen JA concluded, at [40]:
This analysis demonstrates that the circumstances of the offending conduct are many and varied and that they raise a broad spectrum of sentencing principles and considerations. In cases of this nature, considerations of punishment and general and specific deterrence have particular significance. In many of these cases the court referred to the underlying sentencing approach that a single act of penile penetration of an adult victim's vagina would commonly attract a sentence in the range of 4 years to 6 years (formerly 6 years to 9 years) with a 4 year term being at the lower end of the scale and often imposed after taking into account mitigating factors.
In Thorn, the appellant pleaded guilty to six offences which included burglary, unlawful detention (two counts) and sexual penetration without consent in circumstances of aggravation (three counts). An aggregate sentence of 7 years 6 months' imprisonment was imposed. It was a sentence which Buss JA (with whom Wheeler and Miller JJA agreed) held to be within the appropriate sentencing range. Reference was made to Rigby and Ugle. Buss JA concluded, at [50] ‑ [51]:
It might be observed that the appellant was fortunate, in a case within the worst category of offences of the kind in question and after taking into account all relevant mitigating factors, to have received a total effective head sentence that was only a little more than half of the maximum sentence that might have been imposed (after the Amendment and Repeal Act) for each count of sexual penetration, without consent, in circumstances of aggravation.
The total effective head sentence bears a proper relationship to the overall criminality involved in all of the offences, viewed in their entirety, having regard to all relevant circumstances including those referable to the appellant personally. Further, the total effective head sentence cannot be characterised as 'crushing', in the relevant sense.
More recently, in Woodley v The State of Western Australia [2008] WASCA 92, the appellant was found guilty after trial of offences which included assault occasioning bodily harm, deprivation of liberty and sexual penetration without consent. He was sentenced to 6 years 8 months' imprisonment, a sentence which was considered by McLure JA (with whom Steytler P and Miller JA agreed) to be open and not one which could be properly described as crushing.
These cases reveal that the aggregate sentence imposed upon the appellant in the present case was considerably higher than sentences that had been imposed in some other cases which might be described as 'combined offences' in circumstances of burglary and sexual assault. However, as Owen JA observed in Ugle, at [40], the circumstances of the offending conduct in these cases involved conduct that is properly described as 'many and varied' and the cases themselves 'raise a broad spectrum of sentencing principles and considerations'.
Further, reference might usefully be made to Keating v The State of Western Australia [2006] WASCA 65. This was not a case of burglary and associated offences, but one of multiple counts of aggravated sexual penetration, coupled with offences of assault occasioning bodily harm and threats to kill. The sentence imposed was 24 years' imprisonment. The offender in that case had a bad record of convictions and was in a special category of offenders, but, nevertheless, the case demonstrates the wide variety of sentences that can be imposed in cases involving multiple counts of sexual penetration and associated offences.
In the present case, the seriousness of the offending involved multiple violent penetrations of the complainant's vagina and anus. They were penetrations which were both digital and penile. The complainant was bound, gagged, smothered with a pillow and left tied up. She was injured and suffered extreme after‑effects. The offences must be categorised as being at the higher end of the range of seriousness for offences of their type.
A sentence of 16 years' imprisonment was a severe sentence. It was undoubtedly at the higher end of the range of sentences that could have been imposed, but it could not, in my opinion, be said to infringe the totality principle. I consider that the aggregate sentence bore a proper relationship to the overall criminality involved in the offences and I do not consider that the sentence was a crushing one.
Counsel for the prosecution conceded that the sentencing judge should have stated in open court that he was reducing the sentences for the various offences by reason of the appellant's pleas of guilty: Sentencing Act1995 (WA), s 8(4). This he failed to do, but it is apparent from the sentencing judge's comments that a proper allowance was made for those pleas. No ground of appeal is raised in relation to the matter and there could have been no miscarriage of justice occasioned by the sentencing judge's omission to state that the sentences which would otherwise have been imposed were reduced by reason of the pleas of guilty.
In my opinion, ground 1 of the grounds of appeal should be dismissed.

Ground 2

This ground is in the following terms:
GROUND 2
2.The order that the sentence of 8 years imprisonment imposed for the offence of aggravated penile penetration of the victim's vagina be served cumulatively to the sentence of 8 years imprisonment imposed for the offence of aggravated digital penetration of the victim's anus infringed the one transaction principle.
Particulars
(a)All the offences the Appellant committed occurred at the one time in a single multi-faceted course of conduct.
The so‑called 'one transaction rule' which is raised by this ground is often misunderstood. It needs to be restated. The so‑called '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 (SA) 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 Walgar v The State of Western Australia [2007] WASCA 241, McLure JA, at [9], expressed the rule 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'.
In my opinion, it is arguable whether the present case falls within either description. The appellant engaged in a course of criminal conduct that was possibly more than one multifaceted course. A number of the offences, although committed within a short period of time, were distinct and separate in character. Further, those offences arguably invaded a number of different legally protected interests. Burglary, deprivation of liberty, threats to kill, sexual assaults and physical assaults involve a number of separate courses of criminal conduct and may invade a number of different legally protected interests.
The sentencing judge was alert to the need to consider the question whether the 'one transaction rule' applied. In the passage to which I have already referred, his Honour clearly appreciated that the offences were closely related in time, some were interrelated, but others were offences of a discrete nature which should not be treated as part of the one transaction. His Honour accumulated two of the terms of 8 years' imprisonment imposed respectively in relation to counts 5 and 6 on the indictment, being the offences of anal digital penetration and vaginal penile penetration. All other sentences were ordered to be served concurrently, with the sentencing judge apparently considering that counts 1, 2 and 3 (aggravated burglary, deprivation of liberty and threat to kill) were sufficiently interrelated to justify concurrency.
I am satisfied that the cumulation of the two 8‑year terms on counts 5 and 6 properly reflected the criminality of the appellant's conduct. Even if the offences the subject of those counts could be described as part of 'one multifaceted course of criminal conduct', the 'one transaction rule' did not dictate that there be concurrent sentences for those offences. The question was the extent of the appellant's overall criminality. That was properly reflected in the sentences imposed.
In my opinion, there is no substance in ground 2 and it should be dismissed.

Conclusion

I would dismiss the appellant's appeal on both grounds. The aggregate sentence of 16 years' imprisonment was a severe sentence, but, in the circumstances of the case, it cannot be said that it infringed either the totality principle or the one transaction rule. It properly reflected the total criminality of the appellant's conduct. Further, it emphasised the need for both personal and general deterrence. It is for these reasons that I would dismiss the appellant's appeal.

Percentage discount for guilty plea	Starting point	Interim point after discount but before one‑third reduction	Effective sentence
25%	32 years	24 years	16 years
20%	30 years	24 years	16 years
10%	26 years and 8 months	24 years	16 years

Case	Effective sentence	Adjustment to not guilty status	Starting point before one‑third reduction
*Ugle*	11 years and 4 months (corrected)	12 years and 8 months	17 years and 1 month
*Cooper*	12 years	12 years	18 years
*Royer*	16 years	16 years	24 years