SDS v The State of Western Australia - [2014] WASCA 109

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE COURT OF APPEAL (WA)

CITATION: SDS -v- THE STATE OF WESTERN AUSTRALIA [2014] WASCA 109

CORAM: BUSS JA
NEWNES JA
MAZZA JA

HEARD: 2 APRIL 2014

DELIVERED : 22 MAY 2014

FILE NO/S: CACR 149 of 2013

BETWEEN: SDS
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent

ON APPEAL FROM:
Jurisdiction              :  DISTRICT COURT OF WESTERN AUSTRALIA
Coram  :O'NEAL DCJ
File No  :IND 99 of 2011

Catchwords:

Criminal law - Appeal against sentence - Appellant convicted on his plea of guilty of one count of aggravated sexual penetration without consent - Appellant pressed a lit cigarette against the victim's labia minora - Sentence of 6 years' imprisonment - Manifest excess - Extension of time to appeal refused

Legislation:

Criminal Code (WA), s 326

Result:

Application for an extension of time to appeal dismissed
Appeal dismissed

Category: B

Representation:

Counsel:

Appellant: Mr C L J Miocevich
Respondent: Mr J A Scholz

Solicitors:

Appellant: C & G Miocevich Law Offices Pty Ltd
Respondent: Director of Public Prosecutions (WA)

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

Ackley v The State of Western Australia [2013] WASCA 199
Barbaro v The Queen [2014] HCA 2; (2014) 305 ALR 323
C v The State of Western Australia [2006] WASCA 261
Juma v The State of Western Australia [2011] WASCA 54
King v The Queen [1998] WASCA 3
Lindsay v The State of Western Australia [2010] WASCA 142
The State of Western Australia v Akizuki [2008] WASCA 267; (2008) 192 A Crim R 373
THG v The State of Western Australia [2012] WASCA 139
Warburton v The State of Western Australia [2009] WASCA 113; (2009) 196 A Crim R 361
Wimbridge v The State of Western Australia [2009] WASCA 196

BUSS JA: This is an application for an extension of time to appeal against sentence.
The appellant was convicted, on his plea of guilty in the District Court, of one count of sexually penetrating the victim, without her consent, by inserting a lit cigarette into her vagina, contrary to s 326 of the Criminal Code (WA) (the Code). The count also alleged that the appellant did bodily harm to the victim and that the appellant was in a family and domestic relationship with the victim.
On 3 May 2013, O'Neal DCJ sentenced the appellant to 6 years' imprisonment. The sentence was backdated to 4 September 2012. A parole eligibility order was made.
Also on 3 May 2013, his Honour sentenced the appellant on a notice under s 32 of the Sentencing Act 1995 (WA) to 6 months' imprisonment on a charge of aggravated common assault against the victim, contrary to s 313(1)(a) of the Code. The sentence was backdated to 4 September 2012 and ordered to be served concurrently with the term of 6 years' imprisonment imposed for the sexual penetration offence.

The application for an extension of time

The last date for appealing against sentence was 24 May 2013. The appellant did not file his appeal notice until 15 July 2013. He has filed an affidavit sworn by his solicitor, Paul Dixon, in support of his application to extend time.
On 21 September 2013, Mazza JA referred the application for an extension of time to the hearing of the appeal.
The applicable principles governing the exercise of this court's discretion to extend time are set out in Wimbridge v The State of Western Australia [2009] WASCA 196.
I will consider the merits of the ground of appeal before deciding whether an extension of time should be granted.

The facts and circumstances of the offending

At the sentencing hearing the prosecutor stated in open court the State's case as to the facts and circumstances of the offending. Defence counsel accepted the correctness of the prosecutor's statement. The sentencing judge incorporated the facts and circumstances, as recounted by the prosecutor, into his sentencing remarks (ts 32).
At the time of the offending the appellant was aged 24 and the victim was 22. They had been in a de facto relationship for two years. The relationship had produced a child.
On 21 September 2011, the appellant was at a house in Geraldton with a number of other occupants of the house. The victim came to the house to speak to the appellant.
During the evening, the appellant and the victim argued in a bedroom of the house. The appellant refused to permit the victim to leave the bedroom. He dragged her by the arm when she attempted to leave.
The appellant threw a doona over the victim and then struck her to the head and body. During the assault he threatened her.
The victim was able to leave the bedroom when another occupant of the house opened the door. The appellant and the victim went into the lounge room with other occupants of the house.
Later, the victim returned from the lounge room to the bedroom to sleep. The appellant went to the bedroom a few hours later. He struck the victim to the head and face.
The appellant instructed the victim to remove her clothing. She was frightened of the appellant and, as a result, removed her clothes and lay on the bed.
The appellant lit a cigarette while the victim was lying on the bed. He then pressed the lit cigarette against the victim's labia minora for a few seconds. This caused the victim pain. It also caused burn marks on her labia minora.
The victim was able to leave the bedroom when another occupant of the house opened the door. She slept for a number of hours in another bedroom.
On 22 September 2011, the victim was examined by Dr Michael Gibberd, a medical practitioner. Dr Gibberd's examination of the victim's vulva revealed two small burn marks at the posterior aspect of the right labium minora. He said the injuries would have interfered with the victim's health and comfort by causing her pain and discomfort. However, the burns did not appear to penetrate the full thickness of the skin. Dr Gibberd did not notice any bleeding or lacerations.
On 23 September 2011, the appellant was arrested. He participated in a video‑recorded interview with police. The appellant admitted being in a domestic relationship with the victim but denied having committed either of the offences. He was released on bail.
Initially, the appellant pleaded not guilty. He maintained that plea and the matter was listed for trial. However, the appellant failed to appear at the trial. Subsequently, he was arrested. Since 4 September 2012 he has been held in custody.

The sentencing judge's sentencing remarks and the appellant's personal circumstances and antecedents

The sentencing judge recounted in his sentencing remarks the facts and circumstances of the offending.
His Honour noted that the sexual penetration offence was preceded by two separate assaults against the victim. The first assault was the subject of the charge in the s 32 notice. The second assault occurred several hours later. It immediately preceded the sexual penetration offence.
The sentencing judge was satisfied beyond reasonable doubt that the appellant's sole purpose in committing the sexual penetration offence was to inflict pain and humiliation on the victim. She felt degraded and terrified.
His Honour referred to a report dated 19 April 2013 from a registered psychologist, Amy Seear, and a pre‑sentence report dated 6 February 2013.
The appellant was raised by his biological parents in Geraldton and Mount Magnet. Family discontent and domestic violence were present throughout his formative years. These factors are likely to have had an ongoing impact on his social and emotional functioning.
The appellant told Ms Seear that he left school at the end of year 9. This was when he 'got into drugs and alcohol'. After leaving school the appellant lived in Perth, Geraldton and Mount Magnet.
The appellant has completed TAFE courses in horticulture, automotive technology and bricklaying. In about 2007 he was employed for six months at a tyre company in Perth, but this is the only occasion he has had paid employment. The appellant attributes his difficulties in obtaining and sustaining employment to his relationship problems and his history of substance abuse.
The appellant told Ms Seear that he commenced consuming alcohol at the age of 16. During his teenage years he would 'steal around a lot' for the purpose of obtaining alcohol and illicit drugs. The appellant first experimented with cannabis after 'stealing it from mum and dad' at the age of 14. He used cannabis on a daily basis when it was available to him and would often smoke in excess of '10 cones a day'. The appellant also told Ms Seear that he had a history of 'binge‑like amphetamine use'. He had also experimented with ecstasy.
Psychological testing by Ms Seear indicated the appellant was within the 'mild range' for depression and anxiety, and within the 'normal range' for stress.
At the age of 17 the appellant commenced a relationship with a young woman. They had two children. The relationship was marred by domestic violence.
At the age of 22 the appellant commenced another relationship with a young woman. This continued for about one year. The appellant told Ms Seear the relationship was 'all right', and reported only one occasion of domestic violence when he 'somehow kneed her in the eye'.
After the disintegration of the second relationship, the appellant commenced a relationship with the victim. This relationship continued for two years. They had a son. The appellant described the relationship as 'all right'. However, he reported that jealousy was an ongoing issue and would often result in arguments and violence. According to the appellant, each of the parties was unfaithful to the other.
Ms Seear said the appellant explained that on the night in question the victim had told him she had been intimately involved with another man. The appellant acknowledged he was angered by this disclosure, and said he 'didn't want to hit into her' so he burnt her genitals with a lit cigarette.
Ms Seear assessed that the appellant was at a 'medium/moderate' risk of sexual and domestic violence reoffending.
The appellant has a prior criminal record. His previous convictions include unlawful assault occasioning bodily harm (multiple offences), aggravated assault occasioning bodily harm, breach of protective bail conditions (multiple offences), stealing (multiple offences), aggravated burglary and committing an offence in a dwelling (multiple offences), common assault, criminal damage, possessing stolen or unlawfully obtained property (multiple offences) and traffic infringements (multiple offences). The appellant has previously served terms of immediate imprisonment.
The author of the pre‑sentence report noted that the offence in question was the appellant's third conviction against an intimate partner within a five‑year period. The violence he has perpetrated appears to be escalating in severity. The author expressed the view that, 'without appropriate programmatic intervention, he remains a significant risk of further violence within his future relationships'.
The sentencing judge said the appellant's plea of guilty was a mitigating factor. However, it was a late plea. It was not entered until after the matter had been listed for trial. His Honour reduced the head sentence he would otherwise have imposed by 10%.
His Honour said there was no real remorse. The appellant blamed the victim and thought his offending was an appropriate way to respond to actual or suspected infidelity.
The appellant was aged 25 when sentenced. The sentencing judge said the appellant's 'slight youth' did not provide 'much of a factor in mitigation' (ts 36). His Honour did, however, '[have] regard to the fact that while on remand [the appellant had] done something at least towards [his] rehabilitation' (ts 36). He had participated in adult education courses to improve his numeracy and literacy. He had worked well while in custody.
His Honour made the following findings and comments:
It was a serious crime of violence not only intended to inflict pain, but carried out in this way to further humiliate the victim. That's its sexual connotation. It's hardly surprising that this court sees a lot of the worst of human nature. Many crimes are committed because of greed or addiction or a desire for sexual gratification or because of an inability to control a violent temper.
Relatively few crimes are, like this, calculated to inflict pain and humiliation. This offence is a serious example of this kind of offending and in the upper range of such offending (ts 36).

The ground of appeal

The sole ground of appeal alleges that the sentence of 6 years' imprisonment for the sexual penetration offence was manifestly excessive.
On 21 September 2013, Mazza JA granted leave to appeal on this ground.

The merits of the ground of appeal

The maximum penalty for the offence of aggravated sexual penetration without consent, contrary to s 326 of the Code, is 20 years' imprisonment.
It is necessary, in determining whether a sentence is manifestly excessive, to examine it from the perspective of the maximum penalty for the offence, the standards of sentencing customarily observed with respect to the offence, the place which the criminal conduct occupies on the scale of seriousness of offences of the kind in question, and the personal circumstances and antecedents of the offender.
The guidance afforded by comparable cases is flexible rather than rigid. The mere fact a sentence is within the range of other sentences imposed for similar offending does not necessarily establish that there was an appropriate exercise of the sentencing discretion in the particular case. Similarly, the mere fact a sentence is outside the range does not necessarily establish that the exercise of the sentencing discretion in the particular case miscarried.
A sentencing range for comparable offences is merely one of the factors to be taken into account in deciding whether a sentence is manifestly excessive. A range of sentences customarily imposed is of significance for the purpose of ensuring broad consistency in the sentencing of offenders in broadly comparable cases. However, a sentencing range for comparable cases does not fix the range of a sound exercise of the sentencing discretion in a particular case.
When this court dismisses an appeal against sentence, and when it allows an appeal against sentence and resentences the offender, this court's decision on the sentencing outcome does not, of itself, fix the upper or lower limit of the range.
All of the propositions I have stated are well-established by the case law.
Recently, in Barbaro v The Queen [2014] HCA 2; (2014) 305 ALR 323, French CJ, Hayne, Kiefel and Bell JJ said in relation to the notion of an 'available range' of sentences and the notions of 'manifest excess' and 'manifest inadequacy':
Reference to an 'available range' of sentences derives from the well-known principles in House v R ((1936) 55 CLR 499; [1936] HCA 40 (House)). The residuary category of error in discretionary judgment identified (House at 505) in House is where the result embodied in the court's order 'is unreasonable or plainly unjust' and the appellate court infers 'that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance'. In the field of sentencing appeals, this kind of error is usually referred to as 'manifest excess' or 'manifest inadequacy'. But this kind of error can also be (and often is) described as the sentence imposed falling outside the range of sentences which could have been imposed if proper principles had been applied. It is, then, common to speak of a sentence as falling outside the available range of sentences.
The conclusion that a sentence passed at first instance should be set aside as manifestly excessive or manifestly inadequate says no more or less than that some 'substantial wrong has in fact occurred' (House at 505) in fixing that sentence. For the reasons which follow, the essentially negative proposition that a sentence is so wrong that there must have been some misapplication of principle in fixing it cannot safely be transformed into any positive statement of the upper and lower limits within which a sentence could properly have been imposed.
Despite the frequency with which reference is made in reasons for judgment disposing of sentencing appeals to an 'available range' of sentences, stating the bounds of an 'available range' of sentences is apt to mislead. The conclusion that an error has (or has not) been made neither permits nor requires setting the bounds of the range of sentences within which the sentence should (or could) have fallen. If a sentence passed at first instance is set aside as manifestly excessive or manifestly inadequate, the sentencing discretion must be re-exercised and a different sentence fixed. Fixing that different sentence neither permits nor requires the resentencing court to determine the bounds of the range within which the sentence should fall [26] - [28]. (original emphasis)
There is no 'tariff' for offences of the kind committed by the appellant (or for sex offences generally) because of the great variation that is possible in the circumstances of the offending and the offenders. The sentence to be imposed in a particular case depends on its individual facts and circumstances, having regard to the maximum penalty and all relevant sentencing considerations. See The State of Western Australia v Akizuki [2008] WASCA 267; (2008) 192 A Crim R 373 [3], [67] ‑ [69] (Steytler P); Juma v The State of Western Australia [2011] WASCA 54 [37] ‑ [38] (McLure P, Newnes JA & Mazza J).
Further, there is no 'hierarchy' of sexual penetration and the seriousness of each offence of sexual penetration without consent must be determined by reference to its particular facts and circumstances. See C v The State of Western Australia [2006] WASCA 261 [35] (Wheeler JA).
As Wheeler JA noted in C, there can be very serious cases of sexual penetration without consent which do not involve penile penetration:
However, there can be very serious cases which do not involve penile penetration. Some cases of penetration involving objects are obvious examples. Some cases of digital penetration can be extremely forceful and very serious in their consequences. Some other forms of penetration may be effected because the offender considers that they are more likely to be degrading and humiliating to the victim (see, eg, Turaga v The State of Western Australia [2006] WASCA 199) [33].
In the present case, counsel for the appellant and counsel for the State were able to identify only two cases considered by the Court of Criminal Appeal or this court which involved penetration of the vagina, without consent, by a foreign object. See King v The Queen [1998] WASCA 3 and THG v The State of Western Australia [2012] WASCA 139.
I have reviewed King and THG but neither is a useful comparator. In THG, the victim suffered very severe injuries. The injuries constituted grievous bodily harm. The offender had sexually penetrated the victim's vagina and anus with the handle of a tyre jack. In King, the three offenders were convicted after a trial on a number of counts of sexual penetration without consent and indecent assault. They appealed unsuccessfully against conviction and sentence. The sexual penetration without consent offences included two counts of inserting a toothpaste tube into the complainant's vagina. The three offenders were sentenced to total effective terms of 8 years' imprisonment, 7 years' imprisonment and 6 years' imprisonment respectively. The sentences were imposed before the introduction in 2003 of the transitional provisions. Two of the offenders appealed against sentence on the sole ground that the trial judge imposed sentence on the basis of findings of fact which were inconsistent with the jury's verdicts. The third offender appealed on that ground and, also, on other grounds including that the total effective sentence infringed the totality principle. The individual sentences imposed on each of the offenders are not set out in the reasons of the Court of Criminal Appeal.

I have considered other sentencing decisions of this court in cases of aggravated sexual penetration without consent including Warburton v The State of Western Australia [2009] WASCA 113; (2009) 196 A Crim R 361; Juma; Lindsay v The State of Western Australia [2010] WASCA 142; Ackley v The State of Western Australia [2013] WASCA 199; and the decisions on aggravated sexual penetration without consent referred to in those cases.
The other sentencing decisions of this court in cases of aggravated sexual penetration without consent are not truly comparable. The facts and circumstances of the offending in the present case are very unusual. However, the other sentencing decisions indicate the general pattern of sentencing outcomes for offences of the kind in question.
There is no doubt that the appellant's offending was serious. The sentencing judge correctly characterised the offending, in debate with defence counsel at the sentencing hearing, as not having 'much to do with sex other than the use of that as humiliation' (ts 26). The appellant, motivated by anger and jealousy, used sexual violence as a means of exerting power and control over the victim. He deliberately chose to inflict a frightening, humiliating and degrading act on her. The appellant's action in pressing a lit cigarette against the victim's labia minora had the potential to cause the victim more severe physical harm than she in fact suffered.
As I have mentioned, the appellant was aged 24 when he committed the offence. He was 25 at the time of sentencing. As his Honour rightly recognised, any mitigation arising from the appellant's age was slight.
There was some mitigation in the appellant's plea of guilty, but the plea was late.
The appellant demonstrated an absence of remorse. He blamed the victim and refused to accept responsibility for his criminal conduct.
The appellant's personal circumstances and antecedents were unfavourable. He had relevant and significant previous convictions. Although his prior criminal record did not aggravate the seriousness of the offending in question, it indicated that the appellant was not entitled to any leniency on the ground that he was ordinarily of good behaviour.
The expert reports before the sentencing judge revealed that the appellant was at a medium or moderate risk of sexual and domestic

violence reoffending. It is, however, commendable that the appellant took some steps towards his rehabilitation while in custody on remand.

The primary sentencing factors were appropriate punishment, the protection of vulnerable women and personal and general deterrence. Personal deterrence was important because the appellant has a history of violence towards women with whom he is in a family or domestic relationship. This violence has escalated in severity.
In my opinion, although the sentence of 6 years' imprisonment was high, it was commensurate with the seriousness of the offence. I am satisfied, after considering all relevant facts and circumstances and all relevant sentencing factors, that the sentence was not manifestly excessive. That is, when the sentence is viewed from the perspective of the maximum penalty (20 years' imprisonment), and after taking into account the seriousness of the offending (including the vulnerability of the victim), the general pattern of sentencing outcomes for offences against s 326 of the Code, the importance of appropriate punishment, the protection of vulnerable women and personal and general deterrence and all mitigating features, it is apparent that the length of the sentence was not unreasonable or plainly unjust. It was within the range open to his Honour on a proper exercise of the sentencing discretion.
The ground of appeal fails.

Conclusion

I would refuse to grant an extension of time to appeal because the sole ground of appeal has not been made out. The application should be dismissed.
NEWNES JA: I agree with Buss JA.
MAZZA JA: I agree with Buss JA.