SYO v The State of Western Australia
[2024] WASCA 31
•28 MARCH 2024
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: SYO -v- THE STATE OF WESTERN AUSTRALIA [2024] WASCA 31
CORAM: MAZZA JA
MITCHELL JA
VANDONGEN JA
HEARD: 15 DECEMBER 2023
DELIVERED : 28 MARCH 2024
PUBLISHED : 28 MARCH 2024
FILE NO/S: CACR 23 of 2023
BETWEEN: SYO
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram: HERRON DCJ
File Number : IND 501 of 2019
Catchwords:
Criminal law - Appeal against sentence - Whether sentencing judge erred in concluding that Bugmy principles did not apply to the appellant - Whether the sentencing judge erred by not giving mitigatory weight to delay - Whether the overall sentence breached the totality principle
Legislation:
Criminal Code (WA), s 304(2), s 324(3), s 338A(d), s 378, s 401(2)
Sentencing Act 1995 (WA), s 9AA
Result:
Leave to appeal granted on ground 1
Leave to appeal refused on grounds 2 and 3
Appeal dismissed
Category: A
Representation:
Counsel:
| Appellant | : | J Gullaci SC & W Yoo |
| Respondent | : | B M Murray |
Solicitors:
| Appellant | : | Aboriginal Legal Service (WA) |
| Respondent | : | Director of Public Prosecutions (WA) |
Case(s) referred to in decision(s):
Beekman v The State of Western Australia [2022] WASCA 130
Bugmy v The Queen [2013] HCA 37; (2013) 249 CLR 571
Cotterill v The State of Western Australia [2013] WASCA 52
Creusot v The State of Western Australia [2022] WASCA 117
Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321
Director of Public Prosecutions v Merryfull [2023] VSCA 244
Duncan v The Queen (1983) 47 ALR 746; (1983) 9 A Crim R 354
Gomboc v The State of Western Australia [2023] WASCA 115
Hunter‑Aragu v The State of Western Australia [2015] WASCA 80
Kabambi v The State of Western Australia [2019] WASCA 44
Law v The State of Western Australia [2009] WASCA 193
Lee v The State of Western Australia [2022] WASCA 137
Lovell v Lovell [1950] HCA 52; (1950) 81 CLR 513
Mallet v Mallet [1984] HCA 21; (1984) 156 CLR 605
Nguyen v The State of Western Australia [2023] WASCA 151
Pearce v The Queen [1998] HCA 57; (1998) 194 CLR 610
Peterson v The State of Western Australia [2019] WASCA 207
Porter Street Investments Pty Ltd v Nellbar Pty Ltd [2022] WASCA 33
R v Cockerell [2001] VSCA 239; (2001) 126 A Crim R 444
R v Fernando (1992) 76 A Crim R 58
R v Fuller-Cust [2002] VSCA 168; (2002) 6 VR 496
R v Liang and Li (1995) 124 FLR 350; (1995) 82 A Crim R 39
R v Merrett [2007] VSCA 1; (2007) 14 VR 392
R v Olbrich [1999] HCA 54; (1999) 199 CLR 270
RMM v The State of Western Australia [2018] WASCA 183
SAL v The State of Western Australia [2021] WASCA 192; (2021) 292 A Crim R 440
Sayer v The Queen [2018] VSCA 177
Scook v The Queen [2008] WASCA 114; (2008) 185 A Crim R 164
Sharp v Wakefield [1886 ‑ 1890] All ER Rep 651; [1891] AC 193
SYO v The State of Western Australia [2020] WASCA 202; (2020) 57 WAR 363
The State of Western Australia v ADS [2021] WASCA 99
The State of Western Australia v Clark [2020] WASCA 103; (2020) 283 A Crim R 512
The State of Western Australia v Krakouer [2020] WASCA 133; (2020) 94 MVR 24
The State of Western Australia v Malone [2015] WASCA 188
The State of Western Australia v Tawhitapou [2024] WASCA 25
Ugle v The State of Western Australia [2022] WASCA 135
Vagh v The State of Western Australia [2007] WASCA 17
JUDGMENT OF THE COURT:
Introduction
On Christmas Day in 2018, the appellant forced his way into the home of his former partner (DB). Once inside, the appellant used a metal bar to seriously assault a 17‑year‑old male (PC) who was asleep in DB's bedroom and then forced DB to remove her pants, telling her that he wanted to inspect her vagina to see whether she had engaged in sexual intercourse with PC.
On 16 December 2022, the appellant was sentenced in the District Court by Herron DCJ to a total effective sentence of 9 years' imprisonment for the following offences arising from his conduct at DB's home on 25 December 2018 as set out below:
Count
Offence
Criminal Code (WA) (Code)
Maximum Penalty (Minimum penalty)
Sentence
Accumulation
1
Aggravated home burglary
(Code, s 401(2)(a))
20 years
3 years 6 months
Concurrent
2
With intent to harm, unlawfully did an act as a result of which the life, health or safety of a person was or was likely to be endangered
(Code, s 304(2)(b))
20 years
3 years 6 months
Cumulative
3
Threat with intent to compel the doing of an act
(Code, s 338A(d))
7 years
10 months
Concurrent
4
Aggravated indecent assault
(Code, s 324)
7 years
(5 years 3 months)
5 years 6 months
Head sentence
5
Stealing
(Code, s 378)
7 years
No penalty
Total Effective Sentence
9 years
The appellant was made eligible for parole and the sentence was backdated to 25 December 2018 to take account of time spent in custody.
The appellant now appeals against his sentences on three grounds, which are in effect:
1.The sentencing judge erred in fact and law by concluding that the principles explained in Bugmy v The Queen[1] did not apply to the appellant.
2.The sentencing judge erred in fact and law in concluding that the effect of delay in the sentencing of the appellant carried little weight.
3.The total effective sentence of 9 years' imprisonment infringed the first limb of the totality principle.
[1] Bugmy v The Queen [2013] HCA 37; (2013) 249 CLR 571.
For the following reasons, while we would grant leave to appeal in relation to ground 1, leave to appeal should be refused in relation to grounds 2 and 3 and the appeal should be dismissed.
Procedural history
Before summarising the factual basis on which the appellant was sentenced and then dealing with the parties' respective contentions on the appeal, it is necessary to say something about the procedural history of this matter, much of which is set out in a previous decision of this court: SYO v The State of Western Australia.[2]
[2] SYO v The State of Western Australia [2020] WASCA 202; (2020) 57 WAR 363 [16] - [25], [37] - [75].
The appellant has been sentenced in the District Court on two occasions for his conduct on Christmas Day 2018. He previously pleaded guilty to several offences when he appeared in the Magistrates Court in March 2019, and then when he subsequently appeared in the District Court on 30 July 2019, before Petrusa DCJ. When the appellant appeared before her Honour, he pleaded guilty to a series of offences charged in an indictment dated 25 July 2019 (July 2019 indictment).
The terms of the July 2019 indictment are reproduced in Annexure A.
Count 2 of the July 2019 indictment carried a mandatory minimum sentence of 15 years' imprisonment. Count 4 carried a mandatory minimum sentence of 5 years 3 months' imprisonment.
After the appellant was sentenced by Petrusa DCJ, he successfully appealed against conviction. That appeal led to this court making orders on 4 December 2020, setting aside the judgments of conviction entered in relation to counts 2 and 4, and setting aside the sentences imposed for counts 1, 3 and 5 in the July 2019 indictment, subject to the satisfaction of certain conditions.[3]
[3] SYO [215].
It is unnecessary to delve into the details of why the appellant was successful in his appeal against conviction. It is sufficient to note that the appellant had suffered a miscarriage of justice because, amongst other things, before entering pleas of guilty in the Magistrates Court in 2019, he was unaware that a mandatory minimum sentence applied or would apply to any of the charged offences. However, as we have already noted, the appellant was required to satisfy certain conditions before any convictions or sentences would be formally set aside. Relevantly, the appellant was required to file an application in the District Court to change his pleas of guilty to counts 2 and 4 in the July 2019 indictment. He was also required to persuade a District Court judge to allow that application.
It is not in dispute that the appellant satisfied both of those conditions. In that regard the appellant made an application to change his pleas of guilty to counts 2 and 4 in the July 2019 indictment and that application was allowed on 8 February 2021. Pleas of not guilty were then entered in relation to both of those counts, and the sentences that had previously been imposed by Petrusa DCJ for counts 1, 3 and 5 were set aside.
Counts 2 and 4 were then listed for trial in the District Court, and the trial was to commence on 8 November 2022. However, after several appearances in the District Court, and after entering into negotiations with the prosecution shortly before the trial was due to commence, the appellant entered pleas of guilty to an amended count 2, and to count 4 (as originally charged), both of which then appeared in an indictment dated 4 November 2022 (November 2022 indictment).
The terms of the November 2022 indictment are reproduced in Annexure B.
As can be seen, count 2 alleged that the appellant had committed an offence contrary to s 304(2) of the Code, in that he, with intent to harm, did an act as a result of which the life, health or safety of PC was or was likely to be endangered. Unlike count 2 in the July 2019 indictment, that offence did not carry any mandatory minimum sentence.
Upon entering pleas of guilty to counts 2 and 4 in the November 2022 indictment, the appellant was sentenced by Herron DCJ on 16 December 2022 for all five offences charged in the November 2022 indictment.
In fixing the sentence imposed for count 4, the sentencing judge was required by s 324(3) of the Code to impose a mandatory minimum term of at least 5 years and 3 months' imprisonment. The sentence imposed for count 2 was reduced from 4 years 6 months' imprisonment for totality considerations, and that sentence was ordered to be served cumulatively on the sentence imposed for count 4. The result was an aggregate sentence of 9 years' imprisonment. An order was made that the appellant be eligible for parole.
This appeal is concerned only with the sentences that were imposed by Herron DCJ on 16 December 2022.
Circumstances of the offending
At about 2.30 am on Christmas Day in 2018, the appellant forced open a rear door at DB's home in Stratton before going inside. Once inside, the appellant walked into a bedroom in which DB and PC were sleeping. He then went up to PC, who was 17 years of age, and hit him several times with a metal bar that was about 30 cm in length. The appellant hit PC on his body, including to his head, his face, his arms, and his legs. The initial blows with the bar woke PC from his sleep. The appellant then ordered PC to get out of bed and to move into the corner of the bedroom, where the appellant continued to hit his legs with the metal bar. Throughout the assault on PC, the appellant accused DB of having had sex with PC.
After the appellant had successfully subdued PC, he then demanded that DB take off her pants. The appellant said that he wanted to inspect DB's vagina to find out whether she had engaged in sexual intercourse with PC. The appellant told DB to get on the bed and he told her that he was going to have sex with her. When DB said that she did not want to take off her pants, the appellant slapped her face twice, and raised the metal bar above his head as if he was going to hit her with it. Fearing for her safety, DB then pulled down her pants as she had been instructed. The appellant then looked at DB's vagina and, using one of his hands, touched her vagina, moving her labia majora for a short time before removing his hand. The appellant did not penetrate the victim's vagina.
The appellant once again accused DB of having had sex with PC and raised the metal bar as if to hit her with it. When DB shouted that she had not had sex with PC, the appellant again touched her labia majora with his hand for a short period of time. PC then distracted the appellant by talking to him, which gave DB the opportunity to pull her pants up.
While the appellant was at DB's address, he demanded she give him her mobile phone so that he could inspect it for messages. When the appellant eventually left her home, he took that phone with him.
The appellant was arrested later that afternoon at an address in Midland. During a search of that address police located a metal object among the appellant's possessions. The appellant was interviewed by police and made some admissions in relation to the offending.
PC was hospitalised, suffering from a 4 cm laceration on his forehead above his right eye and a 5 cm laceration to the top of his head. He also sustained bruising to his torso, arms, and legs.
Reports
There were three pre-sentence reports before the sentencing judge, each prepared in 2019 for the purposes of the appellant's first sentencing hearing in the District Court before Petrusa DCJ.
Report of Ms Zuin
The first report was written by Ms Cinzia Zuin, a psychologist contracted to the Department of Justice. In her report, Ms Zuin described the appellant's developmental history and family background in some detail. In summary, Ms Zuin noted that the appellant was born in Geraldton, the only child of his parents' casual union, and that he had various half‑siblings to subsequent relationships of both parents.
The appellant was initially raised by his mother, and he had minimal involvement with his biological father, who had recently passed away from diabetes related issues. The appellant told Ms Zuin that his mother 'flogged' him at times. The appellant claimed his mother was often not home, either working or going out, leaving him with the responsibility of caring for his younger half‑brothers. He claimed that he and his brothers were left home alone for days to fend for themselves and on occasions he would be left on his own because his brothers were with their father. This was a very frightening experience for the appellant, and he resented his mother for it. However, the appellant's relationship with his mother improved as she got older.
At the age of 13 years the appellant left home and went to live with his grandmother. Although there was some inconsistency in his reporting, housing was unstable for the most part. The appellant told Ms Zuin that he had seen a lot of violence perpetrated by uncles and aunts, and that he saw a lot of women being assaulted when he was a child. He described his childhood as lonely, and his account tended to suggest that it was unstable and insecure, with some indication of neglect and thwarted emotional needs.
The appellant completed primary schooling in Geraldton and Perth. However, he left high school at the start of year 9. The appellant took a TAFE course in art when he was around 15 years old and subsequently took a mining and construction course in 2010. He then worked in various labouring jobs but mostly did scaffolding work in construction on a fly‑in/fly‑out basis. However, the appellant said he stopped working in 2012 because he was disgruntled about receiving a small tax refund.
The appellant has had several relationships of significance, interspersed with numerous casual relationships, and he has a young daughter. Most of the appellant's relationships appear to have been marred by volatility, drug use and conflict. Ms Zuin noted that the appellant's appraisal of his relationships and partners in general suggests that he holds poor attitudes towards women, especially those he believes have slighted him in any way.
The appellant gave Ms Zuin a positive overview of his physical health and reported that he had no major history of illness or injury. He described himself as a private person and said that he had no interest in counselling because he preferred to keep problems and emotions to himself. He said that he is usually a patient person but that he can become explosive when his patience has 'been tested'. He denied any issues with violence, claiming he does not like violence and only uses it as a 'last resort'.
The appellant told Ms Zuin that he had used alcohol to excess from his teenage years until his late 20s when he developed a methylamphetamine habit. He said that he had initially used the drug recreationally, but his use escalated when he started selling it to generate income after he lost his job. He candidly told Ms Zuin that he had been selling methylamphetamine and cannabis for a number of years.
He claimed that cannabis was his drug of choice, having used it consistently since the age of 13, and that he used it to calm down if he is angry or upset. However, the appellant told Ms Zuin that he does not have any issues with substance misuse and did not believe he needed treatment.
Psychological testing indicated the presence of antisocial personality traits, suggesting that the appellant has limited regard for the law and social norms. Ms Zuin said that it was likely that the appellant would resort to antisocial behaviour when he is emotionally distressed or wants to exact revenge for perceived injustices, and that his capacity for remorse and empathy was likely limited.
In relation to the psychological formulation of the appellant's offending behaviour, Ms Zuin said as follows:
Issues relevant to emotional arousal and regulation; a sense of betrayal and being made a fool of; perceived injustices and; poorly developed decision making and coping skills are considered relevant factors in [the appellant's] offending. His capacity to consider the consequences of his actions is compromised by a desire to exact revenge when he feels slighted, as a way of restoring a sense of power, pride and control. Pride and loyalty are very important to [the appellant] however, he lacks insight about his behaviour and how he contributes to dysfunction in his relationships. [The appellant] has limited capacity to consider alternative approaches/strategies for resolving conflict when he perceives himself to be mistreated or slighted, instead becoming adversarial. Faulty attitudes and beliefs have likely been shaped from exposure to family violence; alcohol/drug abuse and; significant instability and insecurity. There is also some indication that [the appellant] has poor attitudes towards women which have potentially been shaped by resentment towards his mother. This would need to be explored more fully in the context of treatment. [The appellant's] sense of having been let down by important women in his life, since he was a child, has potentially contributed to his difficulty in intimate relationships, amid fear of rejection and abandonment. It is likely that [the appellant] assaulted the male victim in a bid to humiliate and punish him for the emotional distress caused at finding him and his former partner together.[4]
[4] Report of Ms Zuin, 22 April 2019, par 14.
Ms Zuin concluded that the appellant was a 34‑year‑old Aboriginal man 'whose exposure to violence and substance abuse in childhood has, in all likelihood, impeded him from developing prosocial strategies for managing conflict'.[5]
Report of Dr Harding
[5] Report of Ms Zuin, 22 April 2019, par 18.
The second report was written on 7 May 2019 by a psychiatrist, Dr Harding. After concluding that the appellant was not suffering from any major mental illnesses, Dr Harding said the following about the appellant:[6]
[The appellant] has Stimulant Use Disorder and Cannabis Use Disorder. He has had problematic patterns of methamphetamine and cannabis use which led to significant impairment in all areas of his life and serious and violent offences. [The appellant] has been using substances regularly despite associated problems, development of tolerance and ongoing cravings. He is in the early stage of remission due to his containment. Unfortunately, [the appellant] displays very limited insight into his substance use and did not acknowledge it as a problem.
His illicit substance use is the most significant factor in his offending behaviour. [The appellant's] previous criminal behaviour was characterised by nonviolent offences which eventually progressed to violent behaviour and culminated in a violent act when his judgment was significantly distorted by illicit substances.
[The appellant] had a difficult upbringing and was emotionally deprived and not nurtured as a child. He has been living between families and was introduced to illicit substances at an early age. He might have used cannabis initially as part of 'fitting in' with his peers and/or it might have helped to regulate his emotions and deal with loneliness. [The appellant] was relatively well adjusted in his early twenties, he had paid employment and was not involved in serious crime. Unfortunately, his life changed since he began using methamphetamine and became addicted. Methamphetamine use affected his judgment and contributed to his offences. [The appellant] correctly estimated the severity of his offending and presented concerned about his future. Although he reported feelings of guilt over his actions, he presented with strong elements of minimization and rationalization of his behaviour; he portrayed himself as a victim and demonstrated tendency to blame external factors rather than himself.
…
[The appellant's] substance use is the most critical risk factor to address in order to reduce his risk of future re-offending. He would benefit from drug counselling focusing on motivational enhancement and addressing his coping and problem-solving skills. The goal ideally should be a life-long abstinence.
Report of Ms Lovelock
[6] Report of Dr Harding, 7 May 2019, 7 - 8.
The third report was a pre‑sentence report dated 6 May 2019. In that report, it was noted that the appellant claimed he was under the influence of methylamphetamine at the time of the offences. He told the report writer that he had started using alcohol and cannabis at the age of 13, and that he continued to smoke cannabis daily until he was remanded in custody on 26 December 2018. He said that he had stopped drinking alcohol to excess in 2013 when he started using methylamphetamine, which he then smoked on a daily basis until his remand in custody, as he said that it relaxed him.
Sentencing remarks
The sentencing judge's sentencing remarks are lengthy and detailed, reflecting the complexity of his Honour's task.
After making findings of fact consistent with the above summary of the circumstances of the offending, the sentencing judge then correctly identified the applicable statutory maximum penalties for each of the offences. His Honour then turned to consider the seriousness of the offending. In that regard his Honour noted that the appellant entered DB's home in the middle of the night knowing that she was likely to be asleep. He observed that the appellant, while armed, intended to threaten and intimidate DB, who was entitled to feel safe in her own home.
After observing that the appellant was a physically powerful man aged in his early 30s when he committed the offences, the sentencing judge said that the appellant had attacked PC with a metal bar while he was defenceless, striking him multiple times to his head, face and body, causing lacerations and bruising. His Honour noted that PC was only 17 years of age at the time, and that it was fortunate that PC was not more seriously injured having regard to the risk of harm to life or serious and permanent injury associated with a blow to the head with a solid object.
The sentencing judge also said that the appellant's conduct was intended to frighten and terrorise DB. His Honour said that the appellant threatened harm to DB, including by threatening to hit her with the metal bar, and that the appellant's conduct in demanding that DB remove her pants, his inspection and touching of DB's vagina and his demand that she give him her phone so that he could look at her messages, amounted to a serious invasion of her privacy. He said that the appellant wanted to humiliate and degrade DB, and that he sought to exercise control over her and to frighten her for his own purposes.
His Honour remarked that it would have been a frightening and terrifying experience for both DB and PC, and that it was likely that they would suffer ongoing anxiety and distress because of the appellant's offending.
The sentencing judge took into account the fact that the appellant had pleaded guilty. However, because the appellant pleaded guilty at different times, while the maximum discount of 25% was allowed in relation to counts 1 to 3, a 10% discount was allowed in respect of count 4, in accordance with s 9AA of the Sentencing Act 1995 (WA).
His Honour found that the appellant was genuinely remorseful and that he had developed insight into what had led to his offending behaviour. He also referred to the fact that the appellant had taken positive steps towards rehabilitation, including by attending programs and seeking counselling, and that he had been gainfully employed while in custody awaiting sentencing.
The sentencing judge also specifically referred to a letter that the appellant had written for the purposes of sentencing. In that letter the appellant said that he was sorry for what he had done and expressed empathy for the victims. His Honour accepted that the appellant was genuinely apologetic and that he had showed some insight into the impact of his offending on the victims which perhaps did not exist when he appeared before Petrusa DCJ, which was to his credit.
His Honour dealt with the appellant's personal circumstances in some detail. In that regard he found that the appellant was 38 years old at the time of sentencing. He was born in Geraldton, where he was exposed to domestic violence, drug and alcohol abuse, as well as some unstable accommodation and neglect while he was growing up. The appellant regularly witnessed his mother abusing alcohol, and he started drinking alcohol and smoking cannabis himself when he was only about 13 years old. The appellant's mother was also frequently physically abusive towards him, and she often neglected him. She had issues with gambling, and her involvement in various short-term relationships led to some instability in his life as he was growing up. The appellant did not go to school regularly and his education suffered as a result.
The appellant had very limited contact with his father while he was growing up, and he eventually left home at the age of 13. Ultimately, the appellant went to live with his grandmother, who became a positive and stable parental figure during his adolescence. However, the appellant's grandmother passed away from cancer in 2012 when the appellant was 27 years old.
The appellant was distressed when his grandmother passed away. The appellant was working as a fly-in/fly-out worker at the time and his employer refused to let him have leave to attend the funeral. After his grandmother passed away, the appellant's life spiralled out of control, and he felt he had no purpose. The appellant then started using illicit drugs and became addicted to methylamphetamine. He was no longer able to see his daughter, and the appellant then quit his job. When the appellant's brother committed suicide, the appellant continued to use methylamphetamine and his mental health deteriorated further.
The sentencing judge found that the appellant, to his credit, had been gainfully employed since the age of about 14, having worked in various areas including in labouring and agriculture before working in the scaffolding and construction industries. The appellant had obtained a scaffolding ticket and various other construction-related certificates and qualifications.
The appellant did have a criminal record. However, according to the sentencing judge, it was relatively minor. The appellant began offending in his early 20s but there were gaps in that offending, and his Honour concluded that the appellant's offending behaviour appeared to coincide with his increased use of methylamphetamine in his mid to late 20s. In January and October of 2009, the appellant was convicted of a series of offences including unlawful damage, breach of a restraining order, a drug-related offence, and aggravated burglary, for which he received fines and spent convictions in the Magistrates Court. He did not commit any further offences until September 2013 when he breached a violence restraining order. However, in 2015, 2017 and 2018, the appellant was convicted of several minor offences, most of which related to cannabis use.
The sentencing judge had regard to a victim impact statement from DB. Although aspects of the statement were challenged by the appellant's then counsel, his Honour noted that DB suffered from anxiety, panic attacks, depression and PTSD. He also acknowledged that she said she suffered from sleeplessness and nightmares, and that it was understandable that she felt angry, helpless, degraded and fearful as a result of what the appellant had done.
The sentencing judge also had regard to several written character references provided on the appellant's behalf. Each of the references spoke highly of the appellant and indicated that he would have support once released from prison. His Honour expressed the view that they demonstrated that there would be good prospects of rehabilitation if he did not relapse into drug use. However, his Honour also said the following:
Although I accept that those people think highly of you and it is encouraging and a positive factor that they continue to support you and will support you once you are released from prison, some of the referees describe a person quite different to the person who committed this offending.
I draw from those inferences that to some extent your offending was principally related to your illicit drugs use which changed your personality and caused you to act in a violent and aggressive way. Although I take into account what those people have said about you and it is important you have ongoing support in the community I place little weight on their views as to the type of person you were before the offending because that was not the type of person you were at the time of the offending. But the weight I give to their views is that it indicates to me you can become that person again if you don't relapse into illicit drug use and hopefully that will be part of your rehabilitation, so that's what you need to aim for.
The fact that these people think so highly of you; you can again become that same type of person. You were not that person at the time of your offending.[7]
[7] Sentencing ts 171 - 172.
The sentencing judge then turned to deal with a submission made on behalf of the appellant that the disadvantage and dysfunction that he had suffered during his childhood reduced his moral culpability for the offending and reduced the need for personal and general deterrence.
His Honour commenced his consideration of the issue of whether any disadvantage and dysfunction suffered by the appellant during his childhood reduced his moral culpability for the offending by noting that the appellant's counsel relied on observations made by Ms Zuin in her psychological report. He then summarised the relevant parts of that report in the following way:
Ms Zuin says that your discontent with your childhood and resentment towards caregivers has likely contributed to your negative experience of life.
Your capacity for remorse and empathy is likely to be limited, you had limited capacity to consider alternative approaches or strategies to resolving conflict when you perceived yourself to be mistreated or slighted, instead becoming adversarial.
You have false attitudes and beliefs which have likely been shaped from exposure to family violence and alcohol or drug abuse and significant instability and insecurity, that your poor attitudes towards women have potentially been shaped by resentment towards your mother and that your exposure to violence and substance abuse in childhood has in all likelihood impeded you from developing prosocial strategies for managing conflict.[8]
[8] Sentencing ts 172.
His Honour then made the following findings, which are of significance in the context of at least one of the grounds of appeal:
Although I accept that you have suffered from some dysfunction and disadvantages during your childhood and while you were growing up, and that you did not receive the type of support and stability from your mother that you would wish and expect any child would be provided with, and I take those matters into account in considering the sentences I will impose upon you, I am not persuaded and do not accept that that background and those experiences are to be characterised as profound childhood deprivation such that they reduce your moral culpability for the offending, nor do they reduce the need for personal and general deterrence.[9]
[9] Sentencing ts 173.
As can be seen, although the sentencing judge accepted that the appellant had experienced dysfunction and disadvantage during his childhood, he did not accept that it reduced the appellant's moral culpability for the offending, and it did not affect the need for specific and general deterrence.
The sentencing judge accepted that because of COVID‑related restrictions and lockdowns while the appellant had been imprisoned, his time in prison had been more difficult than might otherwise be the case. His Honour also noted that it had been submitted on the appellant's behalf that he should take into account the delay in proceeding when finally sentencing the appellant. In that regard, while the sentencing judge accepted that the delay would have been stressful for the appellant, and that to some extent the appellant would have felt uncertain as to what the future held until he was sentenced, he concluded that any delay carried little weight.
Against the background of a requirement that the appellant be sentenced to at least a term of imprisonment of 5 years and 3 months' for the offending the subject of count 4 on the November 2022 indictment, the sentencing judge then imposed the sentences set out earlier in these reasons at [2].
In dealing with the issue of totality, the sentencing judge reduced the sentence he would otherwise have imposed for count 2, from 4 years and 6 months' imprisonment to 3 years and 6 months' imprisonment, and ordered that it be served cumulatively upon the sentence imposed for count 4. He also ordered that the balance of the sentences imposed be served concurrently with each other and concurrently with the sentence imposed on count 4.
The sentencing judge also ordered that the term would be taken to have started on 25 December 2018, to take into account the time that the appellant had already spent in custody. The appellant was declared eligible for parole.
Grounds of appeal
The appellant relies on the following grounds of appeal:
Ground 1
The learned sentencing Judge erred in fact and law by concluding that the Bugmy principles did not apply to the appellant.
Specifically, His Honour erred in finding:
1.He was 'not persuaded and do not accept that that background and those experiences are to be characterised as profound childhood deprivation such that they reduce your moral culpability for the offending, nor do they reduce the need for personal and general deterrence' (T173)
2.He was 'not persuaded that your background, including exposure to alcohol and to drug abuse and violence during your childhood, demonstrates that you had an inability to control recourse to violence when frustrated. Nor do I accept that your offending arose in circumstances of unusual stress, which are not of your own making. In my view, your violent offending is principally related to your methylamphetamine use and not to your childhood background and experiences' (T175)
3.'Your history does not demonstrate profound childhood depravation, such that you had been led into a cycle of drug and alcohol abuse, and criminal offending. And an inability to control your temper, and react in stressful situations by resorting to violence' (T175)
4.'In my view, the evidence does not support a conclusion that your offending is in some way related to the lack of support and the dysfunction experienced by you as you were growing up' (T176)
5.'I do not accept that your childhood experiences have left a mark on your life such as to impair your capacity to mature and learn from experience and to reform' (T177)
Ground 2
The learned sentencing Judge erred in fact and law concerning the effect of the delay in this case when he concluded 'it carries little weight' (T178)
Ground 3
The total effective sentence was disproportionate to the criminality and breached the totality principle by producing an unreasonable sentence.
Ground 1: Bugmy principles
Ground 1 does not actually identify the relevant 'principles' embodied in the High Court decision of Bugmy that the appellant says were not applied in his case, and the appellant's written submissions were somewhat diffuse. However, as counsel for the appellant's oral submission developed at the hearing of the appeal it became clear that the focus of the appellant's case on ground 1 is on whether it was open to the sentencing judge to reject opinions expressed in Ms Zuin's report, which were said to be unchallenged and uncontradicted, and which the appellant submits should have resulted in findings that his deprived and dysfunctional childhood reduced his moral culpability for the offending.[10]
[10] Appeal ts 16 - 17.
The respondent submits, in effect, that there was no occasion for the sentencing judge to apply any of the principles that emerge from Bugmy. The respondent submits that it was open to the sentencing judge to find that the appellant's moral culpability was not reduced on account of his deprived and dysfunctional childhood, and he was correct to find that the appellant committed a premeditated offence of burglary while armed, during which he assaulted the male victim and committed a degrading act of sexual violence on his former partner, primarily because of his ongoing methylamphetamine addiction which had changed his personality.
Significance of deprived childhood
The childhood experience of an offender may be relevant to sentencing that person in a variety of ways. Frequently, offenders who come before the courts to be sentenced have experienced disadvantage in their childhood. An offender's deprived childhood will ordinarily be relevant because it forms part of the appellant's overall background and antecedents.[11] The disadvantage may help explain or place into context a pattern of offending and assist the assessment of the risk of re‑offending and prospects for rehabilitation. The fact that an offender experienced a deprived and dysfunctional background may also be relevant to the determination of a just sentence because it is causally connected to the particular offending,[12] or because it may explain why a person offended.[13] It may also, in a particular case, be relevant because it bears upon the question of whether an offender's time in custody will be more onerous than might otherwise be the case,[14] or in determining the issues that may be relevant if rehabilitation efforts are to be successfully adopted.[15] It may also be relevant, as a mitigating factor, because the offender has managed to overcome a disadvantaged background and the offence committed was out of character.[16]
[11] SAL v The State of Western Australia [2021] WASCA 192; (2021) 292 A Crim R 440 [74].
[12] SAL [77].
[13] Bugmy [44]
[14] R v Fernando (1992) 76 A Crim R 58, 63.
[15] R v Fuller-Cust[2002] VSCA 168; (2002) 6 VR 496 [79].
[16] The State of Western Australia v Krakouer [2020] WASCA 133; (2020) 94 MVR 24 [82].
In Bugmy, the High Court recognised that profound childhood deprivation (in that case, growing up in an environment surrounded by alcohol abuse and violence) may in some circumstances lessen the moral culpability of the offender. The court recognised that such an experience may leave its mark on a person throughout life and may, among other things, 'compromise the person's capacity to mature and learn from experience'.[17] The court also recognised that this may impact on the sentencing process:[18]
An offender's childhood exposure to extreme violence and alcohol abuse may explain the offender's recourse to violence when frustrated such that the offender's moral culpability for the inability to control that impulse may be substantially reduced. However, the inability to control the violent response to frustration may increase the importance of protecting the community from the offender.
[17] Bugmy [43].
[18] Bugmy [44].
Where an offender seeks to rely on evidence of a deprived background as a mitigating factor it is important for counsel and sentencing judges to recognise that the words used by the plurality in Bugmy, and indeed what has been subsequently said by various intermediate courts of appeal about the principles that emerge from Bugmy, should not be read as if they were some form of statutory prescription.
The principles in Bugmy are not confined to cases of profound childhood deprivation characterised by exposure to alcohol abuse and violence. They are relevant to an offender who, for whatever reason or combination of reasons, has experienced very significant childhood deprivation of a kind and to a degree which leaves its mark on the offender throughout their life, such as to impair the offender's capacity to mature and to learn from experience, and to reform.[19] As was noted in SAL,[20] the principles are broad enough to apply to an offender whose childhood deprivation is affected by, or includes, childhood sexual abuse. As was also noted in SAL:[21]
Where the Bugmy principles are engaged, their application is not discretionary, nor is it necessary to establish a causal link between the offender's social disadvantage and the offending. However, as already stated, where a causal link is established, there will usually be a reduction in an offender's moral culpability. (citations omitted)
[19] Peterson v The State of Western Australia [2019] WASCA 207 [55].
[20] SAL [89].
[21] SAL [87].
Nor are the Bugmy principles confined to cases where the effect of profound childhood deprivation is to 'compromise the person's capacity to mature and learn from experience'. In that regard, it is plain that the plurality's qualification that immediately preceded those words, '[a]mong other things', was intended to convey that a compromised capacity to mature and to learn from experiences is only one possible effect of growing up in a deprived environment, including one surrounded by alcohol abuse and violence. However, the mere fact of childhood disadvantage or even profound deprivation is not mitigatory and does not, of itself, necessarily reduce the moral culpability of an offender. Moral culpability is rather reduced by the permanent effect of profound childhood deprivation on the capacities of the offender in a relevant way, for example by reducing the offender's capacity to control their actions or to appreciate right from wrong. The reduction in moral culpability follows from the impact of something which was beyond the control of the offender on the capacity of the offender to behave lawfully.
In applying the principles identified in Bugmy to an adult offender, it may be appropriate to distinguish between two different classes of case. The first is where profound childhood deprivation has in some way impaired the capacity of an offender to behave lawfully. In this first class of case, the moral culpability of the adult offender is reduced because of that impaired capacity, the impaired capacity may mean that personal deterrence will be less effective, and the impaired capacity makes the case a less appropriate vehicle for general deterrence. The second class of case is where the offender retains full capacity to make choices about unlawful behaviour, although the poor choices which the offender makes may be influenced by childhood experience (such as poor parental role models or early exposure to alcohol and illicit substances). In this second class of case, the adult offender is responsible for those choices and the offender's moral culpability, and the significance of personal and general deterrence, are not diminished by any impairment of the person's capacity to make those choices.
Childhood disadvantage, even profound deprivation, may have different effects on different people. As with mental disorders falling short of insanity which are not self-induced,[22] the effects are variable as is the impact on moral culpability for the offending. In determining whether profound childhood deprivation reduces the moral culpability of the offender, it will be relevant to consider the impact of the deprivation on the person's relevant capacities.
[22] See The State of Western Australia v Malone [2015] WASCA 188 [74].
The moral culpability of an offender is not ordinarily reduced by childhood disadvantage or deprivation which has not significantly impaired their capacity to control their actions, to understand that they should not engage in unlawful conduct and to mature and learn from experience. However, the fact that the offender has overcome childhood disadvantage or deprivation may still be mitigating for other reasons, which do not involve a reduction in the offender's moral culpability for the offending. For example, as this court observed in Krakouer:[23]
The fact that a person is able to overcome childhood social deprivation of that kind to lead a pro-social life, even if the journey is not without blemishes reflected in the person's criminal record, is a mitigating factor ordinarily deserving of considerable weight in the exercise of the sentencing discretion. That is all the more so where the offending for which the person falls to be sentenced is out of character, and committed in circumstances of unusual stress which are not of the person's own making. It is not in the interests of the community for those achievements to be undone by a sentence of immediate imprisonment unless the seriousness of the offending demands that outcome. Further, where the seriousness of the offence is such as to demand a sentence of immediate imprisonment, full weight should be given to the mitigating effect of the manner in which the offender has overcome the challenges which he or she has faced. The term of immediate imprisonment should be for no longer than is necessary to take account of all relevant sentencing considerations including appropriate punishment and deterrence.
[23] Krakouer [82].
Whether an offender's deprived background can and should be taken into account as a mitigating factor does not depend upon whether the relevance of their background aligns with one or more of the ways in which the relevance, or potential relevance, of other offenders' deprived backgrounds has been explained in other cases. To approach the issue in that way risks a departure from individualised justice.[24]
Sentencing judge's approach to deprived childhood
[24] Bugmy [36].
His Honour's remarks were lengthy, detailed and nuanced, and are neither easily summarised nor usefully set out in full. Considering the sentencing judge's remarks as a whole, we assess their effect to be as follows:
1.The appellant suffered from some dysfunction and disadvantage during his childhood comprising the following elements:[25]
[25] Sentencing ts 164 - 165, 173.
(a)The appellant regularly witnessed his mother abusing alcohol and himself started to drink alcohol and smoke cannabis (supplied by his mother's partner) when he was about 13 years old.
(b)The appellant's mother was frequently physically abusive towards him, frequently neglected him and was often away from the home.
(c)The appellant's mother was involved in various short-term relationships, which led to some instability in the appellant's life as he was growing up.
(d)The appellant's mother had issues with gambling, resulting in there often being a shortage of food in the house.
(e)The appellant's mother failed to ensure that he attended school, resulting in the appellant's education suffering as a result of him often not going to school.
(f)The appellant had limited, if any, contact with his father, which deprived him of the advantage of a father figure as he was growing up.
(g)The appellant left home at the age of 13 years and drifted for a time before moving in with his grandmother, who became a stable parental influence during his adolescence.
2.To the appellant's credit, he had largely been able to overcome his deprived background and had been able to become a useful member of society who in recent years had benefited from stability in his life and the support of prosocial people around him. This was a mitigating factor which the judge considered in sentencing the appellant.[26]
3.The appellant's childhood experiences are not to be characterised as profound childhood deprivation which:
(a)impaired his capacity to mature and learn from experience and to reform; or
(b)gave rise to an inability to control recourse to violence when frustrated,
so as to reduce the appellant's moral culpability for the offending or the need for personal and general deterrence.[27]
4.While his childhood experiences are relevant, any childhood deprivation which the appellant may have suffered is not causally relevant to the offending.[28] The offending was principally caused by the appellant's methylamphetamine use that changed his personality and caused him to act in a violent and aggressive way.[29] The appellant's methylamphetamine use began in his mid to late 20s and he became addicted to it after his grandmother passed away in 2012 when the appellant was 27 years old.[30]
5.The appellant had accepted responsibility for his offending and shown some insight into the seriousness of the offending and its impact on his victims, which was an important step towards the appellant's rehabilitation.[31] He had taken positive steps towards rehabilitation while in prison and had demonstrated genuine remorse and insight into what led to the offending.[32]
[26] Sentencing ts 175.
[27] Sentencing ts 173, 175, 177.
[28] Sentencing ts 178.
[29] Sentencing ts 171, 175, 176.
[30] Sentencing ts 165, 167.
[31] Sentencing ts 168 - 170.
[32] Sentencing ts 164.
Ground 1 challenges the conclusion referred to at [74.3] above.
We note that, if the sentencing judge had found that the appellant's childhood experiences had the effects referred to in [74.3] above, then it would not necessarily have followed that his Honour would have imposed a lower sentence. Had the sentencing judge made the finding sought by the appellant, then it would have been unlikely that his Honour could have made the finding as to remorse and insight noted at [74.5] above. Further, a finding that the appellant's capacity to mature and learn from experience and to reform was permanently impaired, or that he had an inability to control recourse to violence when frustrated, would have significantly elevated community protection as a sentencing consideration. However, we accept that the finding sought by the appellant might have led the judge to impose a lower sentence and so the failure to make that finding would be a material error if shown to be erroneous.
The appellant was on notice that the Bugmy submission was contested
If the prosecution or an offender seeks to have the sentencing judge take a fact or circumstance into account when passing sentence, it will be for the party relying on the fact or circumstance to bring it to the judge's attention and, if necessary, call evidence about it. The calling of evidence will only be required if the asserted fact or circumstance is disputed or if the judge is not prepared to act on the assertion.[33] As the Bugmy submission was advanced as a mitigating factor, the onus was on the appellant to prove facts establishing the mitigating factor on the balance of probabilities.
[33] RMM v The State of Western Australia [2018] WASCA 183 [201], citing R v Olbrich [1999] HCA 54; (1999) 199 CLR 270[25]; Law v The State of Western Australia [2009] WASCA 193 [29] - [31].
As this court said in Law v The State of Western Australia:[34]
[A] sentencing judge is obliged to give notice to the offender if the judge is not prepared to act on an alleged mitigating circumstance which is asserted by the offender and not controverted by the prosecution.
[34] Law [32].
Initially, the appellant's sentencing counsel opposed the sentencing judge having regard to the psychiatric report from Dr Harding and the psychological report from Ms Zuin. Both reports had been obtained on the order of the court for the sentencing before Petrusa DCJ.[35] The sentencing judge noted that the appellant's written submissions contended that 'there are Bugmy factors at play here' and asked what evidence the appellant relied on to establish that matter on the balance of probabilities. Counsel submitted that the evidence was principally contained in character references which had been provided to the court. The judge noted that normally some expert evidence in the form of a psychiatric or psychological report would be required to establish that matter.[36]
[35] See sentencing ts 84.
[36] Sentencing ts 85 - 86.
The State prosecutor made submissions summarised by the sentencing judge in the following terms, which the prosecutor accepted as an accurate summary of the State's position:[37]
The State doesn't dispute there are factors in [the appellant's] background which point to some disadvantage and deprivation and they're matters I should take into account in the overall mix of factors, but they don't get to the point of satisfying the Bugmy principles, such that his moral culpability for the offending is reduced, such that personal deterrence and general deterrence are no longer relevant, or at least have reduced relevance.
[37] Sentencing ts 87 - 88.
The appellant's sentencing counsel then indicated that she was content for the sentencing judge to read the psychiatric and psychological reports and requested time to take instructions 'in relation to the full contents of them'.[38]
[38] Sentencing ts 92.
After the court adjourned to give counsel that opportunity (during which time the judge read the reports), counsel for the appellant referred to character references that spoke about the appellant being 'a wholly different man'. The sentencing judge then made the following observations which the appellant's sentencing counsel adopted:[39]
I think the explanation is, isn't it, a relatively straightforward one. He'd been using methylamphetamine and cannabis for an extended period of time. And as is frequently the case in matters before this court, it changes a person's personality. They resort to violence, their judgment is impaired, and that seems to me to be largely the explanation for the offending. That and jealousy and refusal to accept the end of a relationship. … So [this offending] very much underpinned his drug use at the time.
The sentencing judge then expressed the provisional view that this would seem to be inconsistent with the account of Ms Zuin.
[39] Sentencing ts 94 - 95.
As her plea in mitigation progressed, the appellant's sentencing counsel referred in some detail to authorities dealing with Bugmy. She then asked the sentencing judge if he wished her to take his Honour to the expert evidence. The following exchange then occurred:[40]
HERRON DCJ: You now want me to rely on the expert evidence.
SCOUFIS, MS: Well, if your Honour is not satisfied based on the evidence already before the court, then I will. If your Honour is satisfied - - -
HERRON DCJ: Well, it's a matter for you. You bear the onus of proof on it.
SCOUFIS, MS: I do, your Honour, and in my respectful submission, it's discharged, but for the abundance of caution, I will take your Honour to it.
[40] Sentencing ts 101.
The sentencing judge then identified what counsel needed to address in the following terms:[41]
Does the evidence demonstrate or establish on the balance of probabilities that the deprived, disadvantaged background of [the appellant] has impaired his capability to mature and learn from experience?
[41] Sentencing ts 101.
The sentencing judge then expressed at some length the reasons for his provisional view that the evidence did not establish that the Bugmy principles were relevant in this case,[42] in terms which reflected his Honour's ultimate finding. Counsel for the appellant submitted that the judge would be falling into error if he adopted that approach. She then made reference to Ms Zuin's psychological report.[43]
[42] Sentencing ts 101 - 104.
[43] Sentencing ts 104 - 106.
During the course of that submission, the judge indicated that he was 'struggling to understand how you discharge the onus of proof upon you of satisfying me on the balance of probabilities that the principles enunciated in Bugmy are relevant here'.[44] The judge later referred to character references and noted:[45]
And all of those things are to his credit but again, they are inconsistent with the presence of Bugmy type factors. … [H]e might have had a disadvantaged upbringing but it's not relevant in terms of explaining why he offended as he did. What is relevant here is his drug use.
[44] Sentencing ts 106.
[45] Sentencing ts 108.
Counsel then submitted that the drug use was underpinned by childhood deprivation, to which the judge responded:[46]
It's not, it's underpinned by him starting to use methylamphetamine in his mid to late twenties well after he's been raised and he's leading an adult life. It doesn't relate back to his childhood and it's certainly not causative of the offending. As I say, he shows insight into the offending, he's able to learn from what's happened to him.
…
[T]he fact that he's shown insight, again it's to his credit, but the fact that he's been able to show insight and some remorse suggests to me a person who is able to learn from what he did. He's not a person where Bugmy factors are at play.
The appellant's sentencing counsel then indicated that her submission was maintained and moved on to other matters.
[46] Sentencing ts 109.
No doubt in light of the provisional views which the judge had expressed in exchanges with the appellant's sentencing counsel, the prosecutor initially did not seek to say anything further about Bugmy. The sentencing judge indicated that, considering the extensive submissions advanced on behalf of the appellant, the State should put its position on the record. His Honour also said that, 'given the force with which they've been put, it just raises in my mind whether there's a need for a trial of issues in relation to that aspect'.[47]
[47] Sentencing ts 136.
The prosecutor floated the question of whether a trial of the issues might be called for in relation to what were said to be inconsistencies in the appellant's account of his childhood deprivation.[48] The prosecutor made submissions as to why the State contended that Bugmy considerations did not apply.[49] The prosecutor concluded this aspect of his sentencing submissions in the following terms:[50]
We don't call for a trial of the issues. We say your Honour can make factual findings about how [the appellant's] life has gone up until this point, and your Honour can apply the law correctly, namely, that they're relevant, that they provide an explanation, but that they don't reduce his moral culpability or the need for personal and general deterrence in the way suggested by the High Court in Bugmy v The Queen.
[48] Sentencing ts 136 - 137.
[49] Sentencing ts 137 - 139.
[50] Sentencing ts 139.
In reply, the appellant's sentencing counsel did not seek to add any substantive submissions in relation to Bugmy and did not seek a trial of the issues.[51]
[51] Sentencing ts 147 - 148.
In our view, the sentencing judge very clearly identified his reservations about whether the evidence, including Ms Zuin's report but also other material which seemed to be inconsistent with the opinions expressed in that report, established the mitigating factor on which counsel sought to rely. The prosecutor resisted the submission advanced by the appellant's sentencing counsel. The question of a trial of the issues was raised during exchanges with the prosecutor, and none was sought by the appellant's sentencing counsel. Both parties were content for the sentencing judge to make an assessment based on the material then before the court. In light of the observations made by the judge in exchanges with counsel, neither party could reasonably have been surprised by the conclusion that the sentencing judge ultimately reached in his sentencing remarks. The appellant was given ample notice that the submission advanced on his behalf and aspects of Ms Zuin's report might not be accepted in light of other evidence. Nothing in the way the sentencing proceedings had been conducted prevented the sentencing judge from rejecting the submissions and aspects of Ms Zuin's report. The appellant was not denied procedural fairness or denied the opportunity to put on further evidence in support of his Bugmy submission.
Impaired capacity on which the appellant relied at sentencing
We note that the impaired capacities which the sentencing judge found were not established, described at [74.3] above, reflect the impaired capacities identified by way of illustrative example in the passages of Bugmy noted at [66] above.
There is sometimes a tendency for defence counsel to point to childhood disadvantage or dysfunction and seek to invoke 'Bugmy principles' without any clear articulation of the capacity which is said to be impaired. Such an approach is unlikely to advance their client's interests. If there is no articulation of the relevant impaired capacity, the submission can reasonably be taken to be a submission as about particular impaired capacities identified, by way of illustrative example, in Bugmy, and a sentencing judge may reasonably confine his or her attention to that submission. When defence counsel contend that the moral culpability of an offender is reduced by impaired capacity resulting from profound childhood deprivation, it is incumbent on counsel to identify the impaired capacity with some precision so that the sentencing judge can consider evidence of impairment of that capacity.
The focus of the sentencing judge in the present case on the illustrative examples provided in Bugmy is explicable by reference to the way the defence submission was presented to his Honour. The appellant's sentencing counsel invoked the decision in Bugmy without clearly articulating the impaired capacity which applied to the appellant. In referring to authorities, she referred to a passage providing the illustrative example as 'of critical importance'.[52] The sentencing judge identified what counsel needed to address in the passage quoted at [84] above by reference to a quotation from Bugmy.[53] The appellant's sentencing counsel did not attempt to tell the judge that this was not the impaired capacity which she asserted on the appellant's behalf.
[52] Sentencing ts 100.
[53] Sentencing ts 101.
In this context, the sentencing judge could reasonably take the appellant's sentencing counsel as advancing a case that the appellant suffered from an impaired capacity of the kind identified, by way of illustrative example, in Bugmy. There was no error in expressing the court's conclusion as a rejection of the submission which the sentencing judge reasonably understood the appellant to be advancing.
It was open to the sentencing judge to reject Ms Zuin's opinion
The aspects of Ms Zuin's report on which the appellant relies are set out earlier in these reasons, at [35] ‑ [36]. Critical findings in that report were that:
1.The appellant's capacity to consider the consequences of his actions is compromised by a desire to exact revenge when he feels slighted, as a way of restoring a sense of power, pride and control.
2.The appellant lacks insight about his behaviour and how he contributes to dysfunction in his relationships.
3.The appellant has limited capacity to consider alternative approaches/strategies for resolving conflict when he perceives himself to be mistreated or slighted.
4.Faulty attitudes and beliefs have likely been shaped from exposure to family violence, alcohol/drug abuse and significant instability and insecurity.
5.There is some indication that the appellant has poor attitudes towards women which have potentially been shaped by resentment towards his mother.
6.It is likely that the appellant assaulted PC in a bid to humiliate and punish him for the emotional distress caused by finding him and DB together.
7.The appellant's exposure to violence and substance abuse in childhood has, in all likelihood, impeded him from developing prosocial strategies for managing conflict.
In our view, it was well open to the sentencing judge to find that these opinions expressed by Ms Zuin as to the appellant's impaired capacities were inconsistent with other evidence before the court, and to reject Ms Zuin's opinions so far as they supported the appellant's Bugmy submission on that basis.
First, the circumstances of the offending did not suggest any connection between the offending and the impaired capacity to manage conflict referred to in Ms Zuin's report. This was not a case where alternate or prosocial strategies for managing conflict were an issue. DB was asleep in her own house with her current partner when the offending began. There was nothing to suggest that the appellant's conduct was a response to managing conflict. The appellant forced his way into his former partner's house in the early hours of Christmas morning and engaged in unprovoked serious assaults on DB and PC. The material before the court demonstrated that the appellant decided to embark upon a serious aggravated burglary and associated offending. It did not say anything about the appellant's capacity to manage conflict.
Secondly, the sentencing judge accepted the submission by the appellant's sentencing counsel, supported by character references and the appellant's letter to the court, that he had gained insight into the causes of his offending. Ms Zuin's report was inconsistent with that finding to the extent it suggested that he lacked capacity to gain that insight. To the extent that Ms Zuin's report merely indicated that he did not have that insight at the time she saw the appellant, it does not establish any impaired capacity which would operate to reduce the appellant's moral culpability for the offending.
Thirdly, the statement that the appellant may have poor attitudes towards women shaped by resentment towards his mother falls well short of indicating a relevant impaired capacity resulting from profound childhood deprivation.
Fourthly, Ms Zuin's opinion that the appellant's capacity to consider the consequences of his actions is compromised by a desire to exact revenge when he feels slighted is not consistent with a finding that his capacity to consider consequences is impaired by profound childhood deprivation.
Fifthly, the appellant had demonstrated the capacity to behave in a generally lawful manner up until his addiction to methylamphetamine in his late 20's. The material before the court, including the appellant's criminal history, supported the conclusion that the driver of the appellant's violent offending was his methylamphetamine use which manifested in a change of personality and behaviour commonly associated with abuse of that drug. His use of methylamphetamine began well into adulthood, and his addiction to that drug appears to have been driven by his reaction to the death of his grandmother and brother.
Sixthly, Ms Zuin's opinions were not supported by the report of Dr Harding. While Dr Harding's report identified the appellant's difficult upbringing and emotional deprivation as a child, it specified methylamphetamine addiction as the thing which changed the appellant's life, affected his judgement, and contributed towards his offences.
Ms Zuin was a psychologist contracted to the Department of Justice who prepared a report, following a single 75-minute session with the appellant supplemented by 30 minutes of psychological testing in which the appellant agreed to participate reluctantly and under protest. Her report was completed 3 years 8 months prior to the sentencing date. The information before the sentencing judge was more extensive and up to date than that available to Ms Zuin. The sentencing judge was not obliged to uncritically accept the correctness of Ms Zuin's opinions, and appropriately considered the consistency of those opinions with the other evidentiary material before the court. Having done so, it was open to the sentencing judge not to accept aspects of Ms Zuin's opinion which his Honour concluded were inconsistent with other material before the court.
Having reviewed the material before the sentencing judge, we agree with his Honour's conclusion that the material did not establish, on the balance of probabilities, that any relevant capacity of the appellant was impaired by profound childhood deprivation which reduced his moral culpability for the offending or diminished the significance of personal and general deterrence as sentencing considerations. It follows that ground 1 is not established.
Ground 2: delay
The procedural history of this matter shows that the appellant experienced some delay before he was finally sentenced. In addition to the unremarkable period of time that elapsed between when the appellant was charged and when he was first sentenced in the District Court in July 2019, and the further period between when the appellant filed his notice of appeal in SYO on 20 August 2019 and the determination of that appeal on 4 December 2020. The appellant also experienced some further delay between the date of judgment in SYO and when he was finally sentenced on 16 December 2022.
In her plea in mitigation before Herron DCJ, counsel for the appellant submitted that while delay of itself is not mitigating, the delay that the appellant had experienced because of the procedural history of this matter was a mitigating factor. She submitted that it was mitigating because the appellant had made progress towards rehabilitation during the time that had elapsed, and because he had experienced a 'significant amount of suspense and anguish surrounding the delay and the finalisation of these proceedings.'[54]
[54] ts 119 - 120.
In support of the proposition that there had been progress towards rehabilitation, the appellant's counsel submitted that the appellant had good prospects of rehabilitation and was not at a high risk of re‑offending. In that regard counsel referred to the appellant's proven track record of employment in the scaffolding industry and employment while on remand, that he was 'invested in his own rehabilitation' and had 'expressed genuine remorse' for his offending, had the support of a number of friends and family members and stable accommodation available to him on release, and that he was regarded as a generous community member.
In his sentencing remarks, his Honour expressly referred to the delay that had occurred between the appellant being charged and when he was finally sentenced:
It is submitted on your behalf that I ought to take into account the delay in proceeding to sentence you and the delay in getting to this point in time, and that that has been stressful for you.
I accept that that would have been stressful for you and to some extent, you were uncertain what the future held until you were sentenced. But in my view, it carries little weight.[55]
[55] ts 178.
While the sentencing judge did not make any specific findings about whether the appellant had demonstrated that he had made any progress towards rehabilitation during the period of delay, his Honour did find that the appellant had taken 'positive steps towards rehabilitation' and addressing his illicit drug use.[56] His Honour also found that the appellant had been gainfully employed while in prison and that he had positively responded to encouragement from Petrusa DCJ to reconsider his disinterest in rehabilitation. In relation to the letter that the appellant had written shortly before sentencing, the sentencing judge found that it showed the remorse that he had been failing to show at an earlier time, that it demonstrated insight to his offending, and that the writing of the letter was 'an important step towards [his] rehabilitation'.[57]
[56] ts 164.
[57] ts 170.
The appellant now contends that the sentencing judge erred in the exercise of his sentencing discretion when he concluded that the delay in this case was only of 'little weight'. The appellant argues that the sentencing judge made an express error in reaching that conclusion.[58] As we understand the submissions made by the appellant, it is said that although the sentencing judge found that the delay was only of 'little weight', when the sentencing remarks are properly understood, it should be concluded that his Honour did not in fact give any mitigatory weight to delay.[59] It is also submitted that the sentencing judge's conclusion that the delay in this case was of 'little weight' demonstrated that he failed to properly apply the relevant principles, or that he failed to exercise the sentencing discretion actually entrusted to him.
Legal principles
[58] Appellant's submissions, par 24.
[59] Appeal ts 18 - 20.
Before dealing with the contentions made on behalf of the appellant in support of this ground of appeal it is important to identify the relevant principles that apply where delay is relied on as a mitigating factor. In that regard it is well established that mere delay is not mitigatory.[60] However, as McLure JA pointed out in Scook v The Queen:[61]
[d]elay in combination with other relevant sentencing factors favourable to the offender, such as progress towards rehabilitation during the period of any delay, may be mitigatory. In those circumstances, delay may be facilitative or causative but is not mitigatory in and of itself. As a consequence, the reason for the delay is not ordinarily relevant.
[60] Scook v The Queen [2008] WASCA 114; (2008) 185 A Crim R 164 [31] (McLure JA).
[61] Scook [31] (McLure JA). See also [56] - [65] (Buss JA).
It is not possible to identify all factors which in combination with delay will be mitigatory; it will depend on the circumstances.[62] However, as it is inevitable that a person charged with an offence who then becomes involved in the criminal justice system will experience uncertainty, suspense and stress, those sorts of experiences will not ordinarily have a mitigatory effect. However, where delay not attributable to the normal operation of the criminal justice system results in significant stress or leaves an offender in uncertain suspense to a significant degree, then this can be mitigatory.[63] It can also be mitigatory if during the period of delay the offender has adopted a reasonable expectation that he or she would not be charged, or a pending prosecution would not proceed, and the offender has ordered his or her affairs on the faith of that expectation.[64]
[62] Scook [32] (McLure JA).
[63] Scook [33] (McLure JA), [63] (Buss JA).
[64] Scook [63] (Buss JA).
Delay may also result in a discount of the sentence that would otherwise have been imposed if the court thinks that it is an appropriate means of marking its disapproval of dilatory or neglectful conduct by prosecuting agencies,[65] although the appellant does not suggest that a discount should have been afforded to him on this basis.
Discussion of ground 2
[65] Scook [64] (Buss JA).
The appellant's submission that the sentencing judge did not give any mitigatory weight to the effect that delay had on the appellant should not be accepted. In dealing with a submission that he 'ought to take into account the delay in proceeding to sentence [the appellant] and the delay in getting to this point in time, and that that has been stressful for [the appellant]',[66] the sentencing judge reached the conclusion that the delay experienced by the appellant carried 'little weight'.[67] The only reasonable conclusion is that while the sentencing judge accepted that the delay experienced by the appellant was mitigating, he was not prepared to give it much weight in the exercise of his sentencing discretion.
[66] ts 178.
[67] ts 178.
The appellant's submission that this conclusion demonstrates that the sentencing judge failed to properly apply the correct principles should also be rejected. In support of this submission, the appellant places particular reliance on the following passages of the judgment of Maxwell P, in R v Merrett:[68]
[68] R v Merrett [2007] VSCA 1; (2007) 14 VR 392.
[35] The relevance of delay lies rather in the effect which the lapse of time - however caused - has on the accused. Delay constitutes 'a powerful mitigating factor'. In particular, it focuses attention on issues of rehabilitation and fairness. As the Court of Criminal Appeal of Western Australia said in 1983 in Duncan v R:
'… where, prior to sentence, there has been a lengthy process of rehabilitation and the evidence does not indicate a need to protect society from the applicant, the punitive and deterrent aspects of the sentencing process should not be allowed to prevail so as to possibly destroy the results of that rehabilitation.
… The very fact of the long delay in bringing the matter to court which led the applicant to have this matter hanging over his head for nearly four years is rightly prayed in aid on his behalf.'
…
[38] With great respect to his Honour, I am unable to find, either in the sentencing remarks or in the sentences imposed on the applicants, any indication that the extraordinary delay was recognised, or treated, as being 'a powerful mitigating factor' in their favour. This may be because, although his Honour recorded the submissions made on behalf of each applicant about the delay, he expressed no conclusion of his own about their conduct over the intervening five years - or their evident rehabilitation. Likewise, he noted the delays, but expressed no view about them.
…
[44] The matters to which I have referred were very significant mitigating considerations, but they appear to have been given almost no weight. The learned director conceded as much - quite properly, in my view. The director acknowledged that it was most significant that none of the applicants had re‑offended during the intervening years. As he acknowledged, this would hardly have been predicted given their respective criminal records.
[45] It follows, in my view, that the sentencing discretion miscarried. In the director's submission, had proper weight been given to these matters of delay and - critically - rehabilitation, this would have been reflected in both the orders for cumulation and in the non‑parole periods fixed. In resentencing, I propose to take that course. In my opinion, the head sentence of three years on each count is appropriate but I would order that the sentences be served concurrently, giving a total effective sentence of three years. I would direct that the non‑parole period in each case be 18 months.[69] (footnotes omitted)
[69] Merrett[35], [38], [44] - [45].
To the extent that the appellant relies on these passages to submit that, as a matter of principle, delay will always constitute a 'powerful mitigating factor', that submission cannot be accepted. While it is true that the passage at [35] in Merrett, that '[d]elay constitutes "a powerful mitigating factor"', can be read as constituting an absolute statement of principle, we do not think it should be read in that way. We note, in that regard, that subsequent decisions of the Victorian Court of Appeal have not read what was said by Maxwell P in that way. For example, in Sayer v The Queen,[70] immediately after citing Merrett, including the passage at [35], the court said:
At the same time, there is no right to an automatic discount in every case of delay. Each case is different. The most that can be said by way of generalisation is that where prosecuting authorities have unduly delayed bringing the matter to court, there is more likely to be a discount.[71]
[70] Sayer v The Queen [2018] VSCA 177.
[71] Sayer [47].
Further, in Director of Public Prosecutions v Merryfull,[72] the Court of Appeal recently cited Merrett as authority for the proposition that it was 'beyond doubt that significant delay between the time an offender is charged and ultimately sentenced can be a powerful mitigating factor'.[73]
[72] Director of Public Prosecutions v Merryfull [2023] VSCA 244.
[73] Merryful [44] (emphasis added).
It is also significant to observe that Merrett was cited by McLure JA in in Scook, however, her Honour said nothing that could be taken to amount to an endorsement of a premise that delay always amounts to a mitigating factor.
In any event, the notion that delay always constitutes a mitigating factor that must be given significant weight is not supported by the cases that were cited by Maxwell P in Merrett,[74] including the decision of this court's predecessor in Duncan v The Queen.[75] While significant delay can clearly constitute a mitigating factor, and even a 'powerful' mitigating factor, it does not follow that a discount will be afforded in every case where there has been delay. If, having regard to the principles outlined in Scook, delay can be a mitigating factor, then the actual weight to be given to it will depend on an assessment of all the relevant facts and circumstances established by the evidence in each case.
[74] R v Liang and Li (1995) 124 FLR 350; (1995) 82 A Crim R 39, 45; R v Cockerell [2001] VSCA 239; (2001) 126 A Crim R 444 [10] (Chernov JA).
[75] Duncan v The Queen (1983) 47 ALR 746; (1983) 9 A Crim R 354, 356 - 357.
It follows that the appellant's submission that the sentencing judge failed to properly apply the correct principles amounts to a complaint that insufficient weight was ascribed to delay. In Vagh v The State of Western Australia,[76] McLure JA said that a failure to give adequate weight to a relevant sentencing consideration will only give rise to an appealable error if it amounts to a 'failure to exercise the discretion actually entrusted to the Court'.[77] In reaching that conclusion, her Honour relied on the joint reasons of Gaudron and Gummow JJ in Dinsdale v The Queen,[78] and on their approval of the statements of Gibbs CJ in Mallet v Mallet.[79]
[76] Vagh v The State of Western Australia [2007] WASCA 17.
[77] Vagh [76]. See also, Porter Street Investments Pty Ltd v Nellbar Pty Ltd [2022] WASCA 33 [112] ‑ [114]; Lee v The State of Western Australia [2022] WASCA 137 [73] - [75].
[78] Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321, 330.
[79] Mallet v Mallet [1984] HCA 21; (1984) 156 CLR 605, 614.
In Mallet, Gibbs CJ referred to the following passage from an earlier judgment of Latham CJ in Lovell v Lovell:[80]
If completely irrelevant considerations have been taken into account and they have really affected the decision the case is clear, and the order, though made in the exercise of a discretion, should be set aside. Similarly, if relevant considerations are plainly ignored the same result follows. But when the appellate tribunal is considering questions of weight it should not regard itself as being in the same position as the learned trial judge. In the absence of exclusion of relevant considerations or the admission of irrelevant considerations an appellate tribunal should not set aside an order made in the exercise of a judicial discretion (as to which see Sharp v Wakefield (1891) AC 173, at p 179) unless the failure to give adequate weight to relevant considerations really amounts to a failure to exercise the discretion actually entrusted to the court. (emphasis added)
[80] Lovell v Lovell [1950] HCA 52; (1950) 81 CLR 513, 519.
To properly understand what is meant by the phrase 'a failure to exercise the discretion actually entrusted to the court', it is instructive to set out the passage from the judgment of Lord Halsbury LC in Sharp v Wakefield, that was cited by Latham CJ in Lovell:
An extensive power is confided to the justices in their capacity as justices to be exercised judicially; and 'discretion' means when it is said that something is to be done within the discretion of the authorities that that something is to be done according to the rules of reason and justice, not according to private opinion; according to law, and not humour. It is to be, not arbitrary, vague, and fanciful, but legal and regular. And it must be exercised within the limit, to which an honest man competent to the discharge of his office ought to confine himself.[81] (citations omitted)
[81] Sharp v Wakefield [1886 ‑ 1890] All ER Rep 651; [1891] AC 193, 179.
In Vagh, McLure JA said that a conclusion that there had been a failure to exercise a discretion actually entrusted to a court was a 'high threshold' to overcome.[82] We would go further. As the statement by Lord Halsbury LC in Sharp v Wakefield demonstrates, it is a serious step to contend that a judicial officer has failed to exercise a discretion actually entrusted to the court, and one which should not be taken lightly.
[82] Vagh [76].
There is nothing to suggest that his Honour, a very experienced sentencing judge, did anything other than sentence the appellant according to the rules of reason and justice, according to law, and within those limits within which an honest person competent to discharge the duties of his office ought to confine himself. When that is appreciated, all that is left of the appellant's submission is a contention that the sentencing judge should have given more weight to the mitigatory effect of delay. It follows that the appellant's submissions cannot be accepted.
Leave to appeal in respect of ground 2 must be refused.
The question of rehabilitation
Before leaving this ground there is one further matter that should be addressed. As we have already noted, the sentencing judge took into account the delay that occurred between when the appellant was first charged and when he finally came to be sentenced. In that context, his Honour accepted that the appellant had experienced stress and uncertainty. It was on this basis that the sentencing judge concluded that the delay that the appellant had endured was a mitigating factor, although he found that it carried little weight.
In the appellant's written submissions in support of ground 2, it was suggested that the appellant had actively engaged in rehabilitation during the period of delay. In that regard, counsel referred to the submissions made on behalf of the appellant at sentencing, which have been summarised earlier in these reasons at [104] ‑ [105]. However, and as has already been observed, while the sentencing judge made findings that the appellant had taken positive steps towards rehabilitation and towards addressing the issues which led to his offending, including his illicit drug use, he did not make any reference to rehabilitation in the context of his consideration of whether the delay experienced by the appellant carried any mitigatory weight.
The appellant has not relied on this aspect of the sentencing judge's reasons in the context of ground 2. In any event, when the appellant was sentenced by Petrusa DCJ on 30 July 2019, she found that his prospects of rehabilitation were limited.[83] The appellant then appealed against conviction.
[83] ts 18.
The appellant gave evidence when he appeared before this court at the hearing of his appeal in SYO. It is not necessary to summarise the appellant's evidence in any detail. It is sufficient to note that when giving evidence about the offence the subject of count 2 in the July 2019 indictment, the appellant denied that he had hit PC with a weapon or that he caused injuries to his head. In relation to count 4, the appellant gave evidence that he had not touched DB's vagina and that he had not touched her in a sexual way while he was in her house.
The appellant then seemingly maintained that position right up until 7 November 2022, the day before his trial in relation to counts 2 and 4 was listed to commence, when he entered pleas of guilty to those charges after negotiations with the prosecution had taken place. The letter that the appellant wrote to the sentencing judge, which formed the basis of some of his Honour's findings about his remorse, was dated 9 December 2022, a week before the sentencing hearing on 16 December 2022.
The appellant bore the onus of proving, on the balance of probabilities, that he had made progress towards rehabilitation during the period of the delay. In the circumstances described above, the sentencing judge was correct not to take the appellant's limited and very late progress towards rehabilitation into account in assessing the weight to give to the mitigating effect of delay.
Ground 3: totality
The general sentencing principles applicable to a ground of appeal which alleges that a total effective sentence infringed the first limb of the totality principle are well established. Those principles were summarised in Kabambi v The State of Western Australia.[84]
[84] Kabambi v The State of Western Australia [2019] WASCA 44 [21].
The first limb of the totality principle requires that the total effective sentence imposed on an offender who has committed multiple offences bears a proper relationship to the overall criminality involved in all of the offences, viewed in their entirety, having regard to all relevant facts and circumstances including those referable to the offender personally, all relevant sentencing factors and the total effective sentences imposed in comparable cases.
The appellant's written submissions contend that there needed to be some concurrency between the sentences imposed for counts 2 and 4 to reflect the totality principle. In that regard, the appellant submitted that the offences arose out of the one transaction. The appellant also pointed to the appellant's childhood disadvantage, and to the delay that the appellant had endured, and submitted that these were matters that ought to have been reflected in the cumulation of the sentences imposed for counts 2 and 4.
Given that we have concluded that grounds 1 and 2 have not been made out, the appellant's submissions about his childhood disadvantage and the effects of delay, and their relevance to the application of the totality principle, must be rejected.
The maximum penalty for both counts 1 and 2 is 20 years' imprisonment. The maximum penalty for both counts 3 and 5 is 7 years' imprisonment. Those penalties indicate the serious view that Parliament takes of this kind of offending.
Count 4 carries a minimum sentence of 5 years and 3 months' imprisonment and a maximum penalty of 7 years' imprisonment. As this court said in Ugle v The State of Western Australia:[85]
In providing for very significant minimum mandatory penalties, Parliament has recognised the very serious nature of this offending and has specified a range of the sentences which must be imposed for that kind of offending. Parliament's provision for maximum and minimum mandatory penalties informs the court's assessment of the seriousness of the offending. As was observed in Clark,[86] the minimum mandatory penalty and the maximum penalty operate as a floor and ceiling within which the sentencing discretion must be exercised. The maximum penalty is to be imposed for the worst category of case, while the minimum mandatory penalty is to be imposed for the least serious category of case.[87]
[85] Ugle v The State of Western Australia [2022] WASCA 135.
[86] The State of Western Australia v Clark [2020] WASCA 103; (2020) 283 A Crim R 512 [58] - [60].
[87] Ugle [91].
The offences committed by the appellant were extremely serious. The appellant entered his former partner's home without her consent, and in the very early hours of the morning, when she was asleep. As the sentencing judge found, his purpose was to 'threaten and intimidate [DB]',[88] which is exactly what he did when he entered DB's home and confronted her in her bedroom. The offence charged in count 2 was particularly serious. In what was a completely unprovoked attack by a physically powerful man, the appellant used a metal bar to repeatedly strike the much younger PC, who was initially asleep and defenceless. The blows inflicted serious injuries, including to PC's head, and there was a real potential for more significant harm to have been sustained. As the sentencing judge said, the attack on PC was 'vicious and calculated to cause him injury and harm.'[89]
[88] ts 163.
[89] ts 163.
The appellant also threatened to harm DB and to hit her with the metal bar, before he then engaged in acts that were calculated to seriously humiliate, demean and embarrass her. The appellant used violence and threats of violence, and stole her mobile telephone, as a means of exerting control over DB.
The sentencing judge found that the principal cause of the appellant's offending was his use of methylamphetamine. This is unsurprising as the appellant told Dr Harding that he had used about 0.5g of methylamphetamine with his friends before he committed the offences.
The victim impact statement prepared by DB demonstrated that the appellant's offending behaviour had, and continued to have, a significantly negative impact on her. As the sentencing judge found, it would have been a terrifying experience for both DB and PC, such that they are likely to feel less safe in their own homes in the future and suffer ongoing stress and anxiety as a result of the appellant's criminal behaviour.
In relation to count 1, it was necessary for the sentencing judge to give effect to the need for general deterrence in relation to offences of home burglaries, particularly those that involve the use of violence. This court has repeatedly said that there is a need to firm up sentences imposed for such offences.[90] It is also equally necessary to ensure that the sentences to be imposed for counts 2, 3 and 4 reflect the importance of general deterrence in sentencing for offences involving violence, and in relation to counts 1, 3 and 4, the use of violence by men on women with whom they are, or have been, in domestic relationships.[91]
[90] The State of Western Australia v Tawhitapou [2024] WASCA 25, and the many cases referred to at [69].
[91] Gomboc v The State of Western Australia [2023] WASCA 115 [190] - [191], [193].
There were several mitigating factors that his Honour took into account in the appellant's favour. In that regard, the appellant was afforded discounts of 25% from the sentences that would otherwise have been imposed for counts 1, 2 and 3, and a 10% discount for count 4, for the appellant's pleas of guilty, in accordance with s 9AA of the Sentencing Act.[92]
[92] Sentencing ts 165 - 166.
His Honour also took into account the following mitigating factors:
1.The appellant had taken steps towards rehabilitation and towards addressing the issues that lead to him offending, including his drug use.[93]
2.The appellant was genuinely remorseful, and he had developed insight into his offending behaviour.[94]
3.The appellant had been largely able to overcome his deprived childhood and had become a useful member of society.[95]
4.The appellant had been able to lead a generally prosocial lifestyle for long periods of time.[96]
5.The delay in proceeding to sentence would have been stressful for the appellant and, to some extent, created uncertainty in what the future for him.[97]
[93] Sentencing ts 164.
[94] Sentencing ts 166, 177.
[95] Sentencing ts 175.
[96] Sentencing ts 176 - 177.
[97] Sentencing ts 178.
There is overlap between the elements of count 2 and at least one of the circumstances of aggravation alleged in count 1. There is also very significant overlap between the circumstances of aggravation alleged in count 4 and those alleged in count 1, and also with the elements of count 2. Accordingly, the sentencing judge was required to exercise some care in fixing the individual sentences to avoid double punishment.[98] The fact that count 4 carries a mandatory minimum penalty did not affect the imperative to avoid double punishment.
[98] Pearce v The Queen [1998] HCA 57; (1998) 194 CLR 610.
His Honour did not specifically avert to the need to avoid double punishment. However, none of the grounds of appeal assert that the sentencing judge fell into error in that respect. In any event, a sentencing judge is not obliged to make express reference to the double punishment principle. The absence of express reference to the principle in a case in which multiple offences have some degree of overlap does not of itself constitute or reveal an error.[99] Further, in Beekman v The State of Western Australia,[100] this court noted that there is no single correct mechanism for avoiding double punishment.[101] It was stated that, '[f]or example, that outcome may be avoided by reducing the otherwise appropriate sentence for an offence or by ordering partial or total concurrency in relation to two or more sentences.'[102]
[99] Creusot v The State of Western Australia [2022] WASCA 117 [186]; Nguyen v The State of Western Australia [2023] WASCA 151.
[100] Beekman v The State of Western Australia [2022] WASCA 130.
[101] Beekman [44] (Buss P, Mazza & Mitchell JJA).
[102] Beekman [44] (Buss P, Mazza & Mitchell JJA) citing Cotterill v The State of Western Australia [2013] WASCA 52 and Hunter‑Aragu v The State of Western Australia [2015] WASCA 80.
As we have already noted, count 4 carries a minimum mandatory sentence of 5 years and 3 months' imprisonment. In Ugle, this court made the following observations about how the totality principle operates in circumstances in which a sentencing court is required to fix at least one minimum mandatory sentence:
Provision for a minimum mandatory penalty does not alter the principles to be applied in fixing an appropriate total effective sentence. However, the provision for a minimum mandatory penalty may affect the application of the totality principle by affecting the court's assessment of the overall seriousness of the individual offences, considered as a whole, having regard to all relevant facts and circumstances and all relevant aggravating and mitigating factors, including the offender's personal circumstances and antecedents.[103]
[103] Ugle [89].
Accordingly, while the principles remain unaffected, the existence of a minimum mandatory sentence will be relevant to the application of the totality principle insofar as it will inform the court's assessment of the seriousness of the individual offences, and by extension, its appraisal of the overall seriousness of all the offences committed.
The parties did not refer to any comparable cases. That is unsurprising given the unusual circumstances of the appellant's offending. This also appears to be the first occasion on which this court has considered an appeal against a sentence imposed for an offence contrary to s 324(3) of the Code, in circumstances in which a mandatory minimum penalty applied. However, the absence of directly comparable cases does not mean that this court is prevented from determining whether a total effective sentence infringes the first limb of the totality principle. It just means that the court has no directly comparable cases to provide a yardstick against which to judge the adequacy of the total effective sentence imposed at first instance.[104]
[104] The State of Western Australia v ADS [2021] WASCA 99 [59].
Having taken into account the relevant maximum (and, where relevant, the minimum) penalties, the circumstances of the offences (including the fact that there were two separate victims of the appellant's offending), the appellant's personal circumstances, the vulnerability of the victims, the various other aggravating and mitigating factors, and the need to avoid double punishment, we are of the view that it is not reasonably arguable that the total effective sentence was unreasonable or plainly unjust. The total effective sentence of 9 years' imprisonment properly was commensurate with the overall criminality involved in all of the appellant's offences, having regard to all relevant facts and circumstances, including the appellant's personal circumstances, and to all relevant sentencing factors.
Leave to appeal on ground 3 should be refused.
Conclusion and orders
We would make the following orders to give effect to these reasons:
1.Leave to appeal is granted on ground 1.
2.Leave to appeal is refused on grounds 2 and 3.
3.The appeal is dismissed.
Annexure A: July 2019 Indictment
(1)On 25 December 2018 at Stratton [the appellant], while in the place of [DB] without her consent, committed the offence of stealing
And that [the appellant] was armed with an offensive weapon or instrument, namely a metal scaffold ratchet
And that [the appellant] did bodily harm to [PC]
And that immediately before the commission of the offence [the appellant] knew or ought to have known that there was another person in the place
And that the place was ordinarily used for human habitation.
(2)On the same date and at the same place [the appellant], with intent to maim, disfigure, disable, or do some grievous bodily harm to [PC] unlawfully wounded [PC].
And the offence was committed in the course of conduct that constituted an aggravated home burglary.
(3)On the same date and at the same place [the appellant] made a threat with intent to compel [DB] to do an act she was lawfully entitled to abstain from doing.
(4)On the same date and at the same place [the appellant] unlawfully and indecently assaulted [DB] by touching her vagina with his finger
And that, during the commission of the offence, [the appellant] was armed with an offensive weapon or instrument, namely a metal bar
And that, immediately before the commission of the offence, [the appellant] did bodily harm to [PC]
And that, immediately before the commission of the offence, [the appellant] did an act which was likely to seriously and substantially degrade [DB], namely demanding that she show her vagina for inspection
And that [the appellant] was in a family and domestic with [DB]
And the offence was committed in the course of conduct that constituted an aggravated home burglary.
(5)On the same date and at the same place [the appellant] stole a white Samsung mobile telephone the property of [DB].
Annexure B: November 2022 Indictment
(1)On 25 December 2018 at Stratton [the appellant], while in the place of [DB] without her consent, committed the offence of stealing
And that [the appellant] was armed with an offensive weapon or instrument, namely a metal scaffold ratchet
And that [the appellant] did bodily harm to [PC]
And that immediately before the commission of the offence [the appellant] knew or ought to have known that there was another person in the place
And that the place was ordinarily used for human habitation.
(2)On the same date and at the same place [the appellant], with intent to harm, did an act as a result of which the life, health or safety of [PC] was or was likely to be endangered.
(3)On the same date and at the same place [the appellant] made a threat with intent to compel [DB] to do an act she was lawfully entitled to abstain from doing.
(4)On the same date and at the same place [the appellant] unlawfully and indecently assaulted [DB] by touching her vagina with his finger
And that, during the commission of the offence, [the appellant] was armed with an offensive weapon or instrument, namely a metal bar
And that, immediately before the commission of the offence, [the appellant] did bodily harm to [PC]
And that, immediately before the commission of the offence, [the appellant] did an act which was likely to seriously and substantially degrade [DB], namely demanding that she show her vagina for inspection
And that [the appellant] was in a family and domestic with [DB]
And the offence was committed in the course of conduct that constituted an aggravated home burglary.
(5)On the same date and at the same place [the appellant] stole a white Samsung mobile telephone the property of [DB].
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
LF
Research Associate to the Honourable Justice Mazza
28 MARCH 2024
7
34
2