Slater v The Queen - [2002] WASCA 366

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : COURT OF CRIMINAL APPEAL

CITATION: SLATER -v- THE QUEEN [2002] WASCA 366

CORAM: MALCOLM CJ
STEYTLER J
TEMPLEMAN J

HEARD: 2 DECEMBER 2002

DELIVERED : 2 DECEMBER 2002

FILE NO/S: CCA 185 of 2001
CCA 6 of 2002

BETWEEN: GUY MURRAY SLATER
Applicant
AND
THE QUEEN
Respondent

Catchwords:

Criminal law - Application for extension of time to apply for leave to appeal against sentence - Aggravated sexual assault causing grievous bodily harm - Whether infringement of totality principle - Need for sentence to reflect general deterrence as well as specific deterrence

Legislation:

Criminal Code (WA), s 297, s 326, s 595

Result:

Application dismissed

Category: B

Representation:

Counsel:

Applicant: Mr B S Hanbury
Respondent: Mr J Mactaggart

Solicitors:

Applicant: Beau Hanbury
Respondent: State Director of Public Prosecutions

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

Gallegos v The Queen [1999] WASCA 191

Case(s) also cited:

Nil

MALCOLM CJ: This is an application for an extension of time to apply for leave to appeal against sentence. The application is made under s 595(1) of Criminal Code. On 6 December 2001 the applicant was convicted, on his plea of guilty in the District Court at Perth, on one count of aggravated sexual assault contrary to s 326 of the Criminal Code by penetration of the complainant's anus with his penis.
The circumstance of aggravation was that he did bodily harm to the complainant. The applicant was also convicted, on his plea of guilty, of a second count of doing grievous bodily harm to the complainant. Both of the offences were committed on 21 March 2001 at West Perth. The ground on which the appellant seeks leave to appeal is:
"The learned judge imposed a sentence that was excessive in the circumstances of the case as a consequence of the learned Judge failing property to consider:
(a)the maximum sentences for the offences,
(b)the standards of sentencing customarily observed for offences of this nature,
(c)the place which the criminal conduct in question occupies in the scale of seriousness of crimes of this nature,
(d)my personal circumstances; and
(e)the fact that I pleaded guilty."
The application for an extension of time is supported by an affidavit of James Alan Sutherland sworn on 8 January 2002, the solicitor for the applicant, who says that following the sentencing of the applicant on 6 December 2001 he was instructed by the applicant to lodge an application for leave to appeal. Mr Sutherland says that he prepared the application on 18 December 2001 and instructed that it be filed in his absence as he was about to take leave until 7 January 2002.
Upon his return to work, he discovered that the document had been rejected by the Court because the applicant's date of birth had been omitted and it was not clear whether a firm of solicitors was acting for the applicant. The document was in fact dated 14 December 2001 and appears on its face to have been signed by Mr Sutherland. The words below the space for signature on the form are "appellant/applicant" and "applicant/applicant's lawyer/DPP". All of the alternatives other than "applicant's lawyer" were struck out.
In these circumstances it is somewhat surprising that the document was rejected but the absence of the printed name of the signatory and the name of the firm with its address for service should possibly have been added. Counsel for the crown has rightly waived any objection to the application being filed and insofar as it may be necessary for there to be an extension of time, that has been consented to. To the extent that an extension is necessary, I would grant it.
On the same day that he pleaded guilty to the offences alleged in the indictment, the applicant admitted that on 22 September 2000, at the Court of Petty Sessions at Perth, he was placed on a conditional release order for 9 months for the offence of refusing to leave railway property. The applicant admitted that by his conviction of the two offences alleged in the indictment he had breached a conditional release order imposed upon him by the Court of Petty Sessions at Perth on 22 September 2000 for the offence of refusing to leave railway property.
The facts relating to the two offences charged on the indictment, as stated by the Crown, were that during the evening of Wednesday, 21 March 2001, the complainant and the applicant, who were in a de facto relationship, were living at a unit in Mount Street, Perth. Their 11‑month‑old son was living with them. Both the applicant and the complainant had consumed a significant quantity of alcohol during the evening.
An argument developed between them while they were on the balcony. The applicant became violent and aggressive. He pulled the complainant by the arms into the house and threw her onto the bed. The complainant landed on her back and then the offender sat on her stomach and put his knees on her arms so that she was pinned down. The applicant tried to kiss the complainant but she did not wish to take part in any sexual activity with him.
When the applicant tried to kiss her, she bit his tongue, which made the applicant more angry. He then started hitting the complainant in the face and head with his right fist. At this time, the 11-month-old child was lying on the bed and was crying. The applicant covered the complainant's mouth with his hand so she could not breathe properly. When she finally managed to pull her head away from his hand, he hit her numerous times about the head and slapped her on the upper right thigh. He then forcibly removed her jeans and ripped off her underwear and forcibly had anal intercourse with her against her will.
The complainant was screaming because of the pain which she described as unbearable. She blacked out by reason of the pain and did not wake up until the next morning. When she did, she went to the hospital because of the pain she was suffering and because she noticed blood on the toilet paper when she went to the toilet. Although the injuries were apparent because of the amount of blood on the bed, the applicant tried to prevent her from seeking medical help. The police were called by a parking attendant and the applicant was arrested.
When recounting the facts to the learned sentencing Judge, counsel for the prosecution said that, "The complainant had never had anal sex with the offender and that act was done against her will." That was in fact contrary to the deposition of the complainant which at page 13 indicated that she had in fact had anal intercourse with the applicant on previous occasions.
At the same time, of course, she did say that she did not want to have sex with him that night because she was intoxicated and this was the first occasion upon which she had been made to bleed when he had forced her to have sex; that when she did not wish to have sex her body was tensed up and she did not respond to his advances. Her explanation for not saying no, that she did not want sex that night, is that she was frightened for her life and safety.
The blows to the complainant's head resulted in severe bruising and swelling to her face, eyes and behind her ears. She also sustained bruising to her shoulders, arms, neck and leg. The complainant also suffered severe anal trauma which consisted of tearing and excessive bleeding. Her anal injury could only be examined under a general anaesthetic. The Court was told that injuries will most likely result in long‑term or permanent disability as regards the complainant's ability to regain normal faecal continence. At the time of sentencing on 6 December 2001 the complainant was still required to use a colostomy bag.
On 22 March 2001 the offender participated in a lengthy video record of interview in which he consistently denied the offence. He denied that he had bashed the complainant or that he had sexually penetrated her in any way. He alleged that he had noticed the blood all over the bed in the morning and asked the complainant how it happened and that the complainant had told him that she was going to set him up. The applicant alleged that someone else had interfered with the complainant.
So far as the breach of the conditional release order was concerned, that matter related to a circumstance in which the applicant had previously been dealt with for the use of obscene language at the railway station. He had refused to desist from that and continued to use obscene language in a loud and audible voice and he was asked by officers to leave, and refused. He was cautioned and then arrested. The commission of the offences against the complainant in this case constituted a breach of the conditional release order which was imposed on him.
The maximum penalty for the anal penetration offence is 20 years under s 326 of the Criminal Code and the maximum for grievous bodily harm under s 297 of the Criminal Code is 10 years. The learned sentencing Judge accepted the statement of facts by the prosecution, which was not contested. No complaint was made about the misstatement of facts at that stage. It was found that the complainant was caused serious injuries to her anus and that while on the night in question she was too much affected by alcohol to appreciate the seriousness of it, the applicant compounded the seriousness of the offence by failing to assist the complainant the following morning.
The learned Judge went on to say:
"The offence is mitigated by your plea of guilty, and I will take that into account in the sentence that I impose on you. However, I also take into account that the crown case is a strong case and that, therefore, perhaps your plea of guilty was in some respects inevitable. You have spent 150 days in custody in relation to this offence. You have been a sentenced prisoner in relation to an offence of assault occasioning bodily harm since September of 2001 and I am advised – sorry; yes, 7 September 2001 – and your earliest release date for that offence will be 30 June 2002.
In view of the fact that this is an entirely different offence, I consider that any penalty that I impose should be cumulative on that sentence that you are now serving. However, I acknowledge and I will mention later the effect the totality principle has on the sentence I intend to impose. Another relevant matter is that you were on bail for the offence of assault occasioning bodily harm when these offences occurred and, as the Crown has said, that is a matter which the Court of Criminal Appeal has said aggravates these offences."
The breach of the conditional release order was dealt with by a concurrent term of imprisonment until the liability to pay the fine was discharged and was fixed as the term.
The learned Judge noted that the applicant was, at the time of sentencing, 27 years of age and the former de facto of the victim. It appears that violence was a common characteristic of the relationship and that the applicant, to his credit, wished to maintain a relationship with his son and the Judge expressed the hope that once the applicant was released from imprisonment, he would appreciate that he would be of more benefit to his son out of prison than in.
Having taken into account all of the matters referred to in the pre‑sentence report and the psychological report regarding the intellectual limitations upon the applicant's intellect and his confusion of thought, the fact that there had been recent deaths in the family which had resulted in him having to spend a considerable time grieving, which had affected his psychological state, together with what was regarded as a "court history" commencing at the age of 12, it was noted that there was no prior conviction for sexual offences.
Her Honour took the view, and I must say rightly, that these offences were extremely serious. There is a need both for general deterrence in relation to these matters as well as specific deterrence. Having taken these matters into account, the learned Judge said:
"In my view, for the reasons I have given, the offences are at the upper end of the scale of seriousness of offences of this type. You showed no mercy to a woman who you supposedly loved. You assault her, causing her facial injuries; you sexually degraded and penetrated her, leaving her with injuries that may compromise her health for the rest of her life. You then failed to get her help and left her to leave the room with your young child to seek assistance. Even then you did not assist her and denied your involvement in the offences to a passer‑by.
In my opinion, because of these matters, an appropriate starting point for count 1 on the indictment is 11 years' imprisonment. I allow you credit of some 2 and a half years for your early plea of guilty, the fact that alcohol may well have clouded your judgment on this evening, and your disadvantaged personal circumstances. Taking into account the totality principle, I now allow another 12 months for the time that you have spent in custody and the time that you will continue to spend in custody in relation to the offence that you are currently undergoing.
As I have already indicated, I will make you eligible for parole. Whilst you are a marginal candidate for parole given your prior criminal record, I acknowledge that there is no doubt that you will benefit from community supervision once you are released."
Her Honour then imposed the sentence on count 1 of imprisonment of 7 and a half years; on count 2 a concurrent sentence of 4 years to be served concurrently with the sentence on count 1 but to be served cumulatively upon the sentence or sentences that he was then serving. This was in fact a sentence of 2 and a half years for a quite unrelated matter.
It is accepted on behalf of the applicant that imprisonment was the only available option in the circumstances. It is also accepted that the length of the concurrent terms imposed was consistent with the relevant authorities such as Gallegos v The Queen [1999] WASCA 191 at 28 in my judgment.
I am entirely unconvinced by the submissions that the total sentence of imprisonment for 10 years involves any infringement of the totality principle. The offences did comprise of two separate and violent acts of a specifically degrading and sexual nature, and the other a vicious physical assault. In my opinion, the total sentence of 10 years was well within the range of a sound discretionary judgment.
In the circumstances, the sentence of 7 and a half years for the anal penetration was a relatively moderate sentence for a particularly violent anal penetration. While the sentence of 4 and a half years was also a relatively moderate sentence for the offence of grievous bodily harm, the fact that the sentence was made wholly concurrent with the sentence of anal penetration greatly moderated the impact.
I am also wholly unconvinced that there was any error in the exercise of the sentencing discretion in this case. For these reasons I am of the opinion that the application for leave to appeal should be dismissed.

STEYTLER J: I agree
TEMPLEMAN J: I agree also.