THE STATE OF WESTERN AUSTRALIA -v- AKIZUKI [2008] WASCA 267

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2008] WASCA 267
Court:	THE COURT OF APPEAL (WA)
Case No:	CACR:77/2008	Heard:	2 DECEMBER 2008
Coram:	STEYTLER P McLURE JA MILLER JA	Delivered:	22/12/08
No of pages:	36	Judgment Part:	1 of 1
Result:	Appeal allowed
Category:	B
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Parties:	THE STATE OF WESTERN AUSTRALIA THOMAS JOSEPH AKIZUKI
Catchwords:	Criminal law Sexual offences Aggravated sexual penetration Attempted aggravated sexual penetration Offence of unlawfully occasioning bodily harm Opportunistic attack on young female Considerable violence used Whether aggregate sentence of 2 years 6 months manifestly inadequate
Legislation:	Criminal Appeals Act 2004 (WA), s 41(4)(b) Criminal Code (WA), s 317(1), s 326, s 552 Criminal Law and Evidence Amendment Act 2008 (WA)
Case References:	Alvarez-Pizalla v The State of Western Australia [No 2] [2008] WASCA 105 Bentley v The State of Western Australia [2007] WASCA 38 Brockman v The Queen (Unreported, WASCA, Library No 970044, 4 February 1997) C v The State of Western Australia [2006] WASCA 261 Cavill v The State of Western Australia [2008] WASCA 108 Clarkson v The State of Western Australia [2006] WASCA 250 Collins v The Queen [2002] WASCA 142 Fowler v The Queen [2002] WASCA 296 Hart v The Queen [2003] WASCA 265 Hopper v The Queen [2003] WASCA 153 House v The King (1936) 55 CLR 499 Jarvis v The Queen (1993) 20 WAR 201 Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665 McAlear v The State of Western Australia [2008] WASCA 39 McKerlie v The State of Western Australia [No 2] [2006] WASCA 274 Michael v The State of Western Australia [2008] WASCA 66 Nelson v The Queen (Unreported, WASCA, Library No 950376, 1 June 1995) Pearce v The Queen (1998) 194 CLR 610 R v Clark [2000] WASCA 229 R v Cleak [2004] WASCA 72 R v Podirsky (1989) 43 A Crim R 404 R v Quartermaine [2000] WASCA 341 Rigby v The State of Western Australia [2005] WASCA 134 The State of Western Australia v Miller [2005] WASCA 53 The State of Western Australia v Porter [2008] WASCA 154 The State of Western Australia v Richards [2008] WASCA 134 The State of Western Australia v Turaga [2006] WASCA 199 The State of Western Australia v Wallam [2008] WASCA 117 Thorn v The State of Western Australia [2008] WASCA 36 Ugle v The State of Western Australia [2007] WASCA 199 VIM v The State of Western Australia [2005] WASCA 233; (2005) 31 WAR 1 Walgar v The State of Western Australia [2007] WASCA 241 Woodley v The State of Western Australia [2008] WASCA 92

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : THE STATE OF WESTERN AUSTRALIA -v- AKIZUKI [2008] WASCA 267 CORAM : STEYTLER P

McLURE JA

MILLER JA

HEARD : 2 DECEMBER 2008 DELIVERED : 23 DECEMBER 2008 FILE NO/S : CACR 77 of 2008 BETWEEN : THE STATE OF WESTERN AUSTRALIA

Appellant

AND

THOMAS JOSEPH AKIZUKI

Respondent

ON APPEAL FROM:

Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA

Coram : EATON DCJ

File No : IND 704 of 2008

Catchwords:

Criminal law - Sexual offences - Aggravated sexual penetration - Attempted aggravated sexual penetration - Offence of unlawfully occasioning bodily harm - Opportunistic attack on young female - Considerable violence used - Whether aggregate sentence of 2 years 6 months manifestly inadequate

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Legislation:

Criminal Appeals Act 2004 (WA), s 41(4)(b)

Criminal Code (WA), s 317(1), s 326, s 552
Criminal Law and Evidence Amendment Act 2008 (WA)

Result:

Appeal allowed

Category: B

Representation:

Counsel:

Appellant : Mr R E Cock QC & Ms A M Seaman

Respondent : Ms K J Farley

Solicitors:

Appellant : Director of Public Prosecutions (WA)

Respondent : Legal Aid (WA)

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

Alvarez-Pizalla v The State of Western Australia [No 2] [2008] WASCA 105
Bentley v The State of Western Australia [2007] WASCA 38
Brockman v The Queen (Unreported, WASCA, Library No 970044, 4 February 1997)
C v The State of Western Australia [2006] WASCA 261
Cavill v The State of Western Australia [2008] WASCA 108
Clarkson v The State of Western Australia [2006] WASCA 250
Collins v The Queen [2002] WASCA 142
Fowler v The Queen [2002] WASCA 296
Hart v The Queen [2003] WASCA 265
Hopper v The Queen [2003] WASCA 153
House v The King (1936) 55 CLR 499
Jarvis v The Queen (1993) 20 WAR 201
Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665

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McAlear v The State of Western Australia [2008] WASCA 39
McKerlie v The State of Western Australia [No 2] [2006] WASCA 274
Michael v The State of Western Australia [2008] WASCA 66
Nelson v The Queen (Unreported, WASCA, Library No 950376, 1 June 1995)
Pearce v The Queen (1998) 194 CLR 610
R v Clark [2000] WASCA 229
R v Cleak [2004] WASCA 72
R v Podirsky (1989) 43 A Crim R 404
R v Quartermaine [2000] WASCA 341
Rigby v The State of Western Australia [2005] WASCA 134
The State of Western Australia v Miller [2005] WASCA 53
The State of Western Australia v Porter [2008] WASCA 154
The State of Western Australia v Richards [2008] WASCA 134
The State of Western Australia v Turaga [2006] WASCA 199
The State of Western Australia v Wallam [2008] WASCA 117
Thorn v The State of Western Australia [2008] WASCA 36
Ugle v The State of Western Australia [2007] WASCA 199
VIM v The State of Western Australia [2005] WASCA 233; (2005) 31 WAR 1
Walgar v The State of Western Australia [2007] WASCA 241
Woodley v The State of Western Australia [2008] WASCA 92

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1 STEYTLER P: I agree with Miller JA, that this State appeal against sentence should succeed. However, like McLure JA, it seems to me that the appeal should succeed on totality grounds rather than upon the basis that the individual sentences are so low as to be outside the range of a sound sentencing discretion. Accordingly, I agree, for the reasons that she has given, that the sentences on counts 1, 2 and 3 should be served cumulatively and the sentence on count 4 should be served concurrently giving rise to a total term of 5 years' imprisonment.

2 I wish also to comment on the range of sentences customarily imposed for offences of this kind.

3 The starting point, in any such discussion, is recognition of the fact that there is no tariff for sexual offences. The sentence to be imposed in each case must depend upon its individual circumstances, having regard for the maximum penalty set by the legislature. This is often said by the courts, but the proposition is one to which more than lip service must be paid. Nevertheless, it is important, when deciding upon the appropriate sentence in the individual circumstances of a case, to know what sentences are customarily imposed in cases involving similar offending. Otherwise, there is a risk that sentencing will become idiosyncratic and arbitrary. For that reason, I propose to set out some of the sentences that have been imposed in a number of the more recent cases involving sexual penetration of adults. Where cases were decided prior to the coming into operation of the transitional provisions of the Sentencing Legislation Amendment and Repeal Act 2003 (WA), I will reduce them by one-third so as to accord with the position as it would have been under the current regime (in which, at the date of writing, the transitional provisions still operate). For ease of reference, I will refer to this as the transitional regime.

4 I will start with R v Quartermaine [2000] WASCA 341. That was a State appeal. The offender, a 24-year-old man, was convicted, after a trial, on one count of sexual penetration by fellatio, one count of indecent assault by kissing the complainant on her breast and one count of penile sexual penetration of the complainant's vagina. The offender had been at the complainant's home together with others, including the complainant's de facto husband. Events had got out of hand after consumption of alcohol and cannabis. The offender became violent. He forced the complainant to perform fellatio on him. He then forced her to have penile intercourse. It is not apparent when the indecent assault occurred, save that it obviously formed part of the same course of conduct. The offender had a significant criminal record.

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5 Wheeler J, with whom Kennedy and Wallwork JJ agreed, said that, while sentences imposed in cases of sexual penetration without consent varied substantially, the general range of sentences commonly imposed for a single act of penetration of the vagina with the penis where the victim was over the age of 16 remained of the order of about 6 years (4 years under the transitional regime) [16]. She went on to say that a sentence of that kind was generally at the lower end of the scale for offences of that type and was often the sentence imposed after taking into account mitigating factors.

6 Wheeler JA cited R v Podirsky (1989) 43 A Crim R 404 (which, at that time, remained the most frequently cited case when sentencing for offences of sexual penetration without consent), Nelson v The Queen (Unreported, WASCA, Library No 950376, 1 June 1995), and Brockman v The Queen (Unreported, WASCA, Library No 970044, 4 February 1997). In Podirsky (411), Malcolm CJ (with whom Pidgeon J agreed) said that a single act of sexual assault by penile penetration commonly attracted a sentence of about 6 years imprisonment (4 years under the transitional regime) but that 'such a sentence could be reduced by mitigating factors'. He said that, in a case of aggravated sexual assault by penile penetration, much depended on the circumstances of aggravation. He repeated these comments in Nelson. However, in Brockman, he went further.

7 In that case the 32-year-old offender, after drinking heavily, went, together with two others, to the home of the complainant, who was his former partner. They made so much noise in the course of requesting entry that the complainant let them in. When the complainant went in to her bedroom, the offender followed her. He used a degree of force in making her have sexual intercourse with him. The sentencing judge took as his starting point a term of 6 years (4 years under the transitional regime). Malcolm CJ (with whom Wallwork & White JJ agreed) said that this starting point was 'at the lower end of the scale of an offence of that type' and that 6 years (4 years under the transitional regime) is 'the sentence which is often imposed after taking into account mitigating factors'.

8 In Quartermaine, in which there were no mitigating circumstances, Wheeler J regarded as appropriate sentences equating, under the transitional regime, to terms of imprisonment of the order of 4 years and 8 months in respect of the act of penile penetration and 3 years and 4 months in respect of the fellatio. She considered that a term of 16 months' imprisonment was appropriate for the indecent assault. For

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totality reasons, she reduced the sentence in respect of the fellatio to one of 16 months to be served cumulatively upon the term of 4 years and 8 months. She ordered that the term imposed in respect of the indecent assault be served concurrently with the other terms. Because the offender was already serving terms of imprisonment in respect of other offences, she made further reductions for totality reasons. It is unnecessary, for present purposes, to quantify these.

9 In Fowler v The Queen [2002] WASCA 296, the offender's estranged wife had taken out a violence restraining order against him. Notwithstanding this, he broke into her home and forced her to have sexual intercourse with him. His antecedents were generally favourable. He was convicted after a trial. He was sentenced to a term equating to 3 years and 4 months' imprisonment under the transitional regime. The court dismissed his appeal.

10 In Collins v The Queen [2002] WASCA 142 the offender was convicted of 11 offences. These were made up of two aggravated burglaries, five aggravated sexual assaults, one assault occasioning bodily harm, one robbery, one burglary and one assault of a police officer with intent to prevent arrest.

11 In the early hours of the morning the offender had broken into the home of one of the complainants, who was unknown to him. He threatened her with a bottle, removed her pyjama pants and forced her over the bed. He penetrated her vagina with his penis and then penetrated her anus with his penis. He turned her around, forced her to her knees and then made her perform oral sex upon him. After that he twice more penetrated her vagina with his penis. Because she struggled during this episode, he bit the complainant, causing her bodily harm. The complainant's brother returned home and saw what was happening. When he intervened, the appellant struck him with his fist, causing severe bruising and swelling to the left side of his face. The offender then left, only to return a short while later. He again forced his way into the house. He demanded that the complainant's brother hand over the keys to his car which was parked outside. He drove away in the car, colliding with the front of the house as he did so. The car became bogged in a garden bed. The offender fled on foot. He broke into another house, where he damaged windows and electrical equipment. When arrested by police, he slammed a gate on the hand and wrist of a constable, causing bruising.

12 The offender had a criminal history of minor assaults, disturbances and resisting arrest. He pleaded guilty at an early stage. He was

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sentenced to terms (all of which have been reduced by one-third to equate them to terms under the transitional regime) equating to 2 years' imprisonment in respect of each of the aggravated burglaries, 4 years' imprisonment in respect of three of the aggravated sexual assaults, 5 years and 4 months' imprisonment in respect of each of the remaining aggravated sexual assaults (penile penetration of the complainant's mouth and the penile penetration of the complainant's vagina in the course of which the offender bit the complainant), 16 months' imprisonment in respect of the assault occasioning bodily harm to the complainant's brother, 2 years and 8 months' imprisonment in respect of the robbery, 8 months imprisonment in respect of the burglary and 8 months' imprisonment in respect of the offence of assaulting the police constable. The sentences were structured so as to give rise to an aggregate term equating to 7 years and 4 months' imprisonment under the transitional regime. The court dismissed the offender's appeal, saying that the sentences were 'if anything, rather lenient'.

13 In Hopper v The Queen [2003] WASCA 153, the 19-year-old offender pleaded guilty on the fast-track on two charges of sexual penetration without consent and one of indecent assault. He was intellectually disabled, with impairments in cognitive functioning. He also had difficulties with emotional communication and learning. He met the diagnostic criteria for Autism Spectrum Disorder and Asperger's Disorder or Syndrome. Characteristics of those conditions were severe impairment in social interaction and difficulties in interpreting social cues. His excessive consumption of alcohol on the night of the offences may have increased his inability to interpret social cues correctly.

14 The complainant had agreed to accompany the offender and his two friends to Northbridge. After a while she decided she wanted to go home. The offender offered to walk her to a taxi rank. While doing so, the offender and the complainant stopped briefly. The offender kissed the complainant on the mouth and then placed his hand down the back of her pants and underwear and thrust his finger into her vagina. She told him to stop. However, he continued to push his finger into her vagina causing pain. This gave rise to the first offence of sexual penetration without consent. The two then walked further along the street. The complainant sat on the ground. The offender knelt in front of her and put his hand inside her top and exposed her left breast. He then sucked the complainant's left nipple. This gave rise to count 2. The complainant pushed him away. The two of them then walked further along the street. The offender asked the complainant if she would have sex with him. She said no. However, the offender pulled the complainant's pants and

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underwear down and then forced his erect penis between her legs. He attempted to enter her vagina and, as she resisted, his penis penetrated her anus. The penetration was only momentary and, when asked to stop, the offender did so. However, he asked the complainant if she would suck his penis. When she said no, he again attempted to enter her vagina with his penis. He eventually gave up and pushed the complainant, causing her to fall on her right elbow. He ran away.

15 The offender's antecedents were favourable. He also had favourable references. He had been in Perth on holiday from England at the time of the offences. He voluntarily returned to Western Australia from England in order to be dealt with by the court. He was sentenced to terms equating to 2 years 8 months' imprisonment under the current regime in respect of each of the counts of sexual penetration and to a term equating to 16 months' imprisonment in respect of the indecent assault. All terms were ordered to be served concurrently. His appeal was dismissed by a majority (Murray & Wheeler JJ, Hasluck J dissenting).

16 In Hart v The Queen [2003] WASCA 265, the 35-year-old offender was convicted of 31 offences. They involved four different complainants. The offences against the first two complainants were committed on 1 May 2002 and 3 May 2002 respectively. The offences against the other two complainants were committed on the night of 29 August 2002. The more relevant offences, for present purposes, were committed against a 68-year-old woman, JFH.

17 JFH lived alone. The offender entered her home in the early hours of the morning. She was asleep in bed. He got into her bed, placed a hand over her mouth and held a knife to her throat. He then put his hand inside her underwear, rubbed her vagina and then inserted a finger into her vagina. He rubbed her breasts. Then, he removed her track pants and underwear, pushed her onto her stomach and made several unsuccessful attempts to force his penis into her vagina. He pushed the complainant into a kneeling position, stretched her labia majora apart with his hands and penetrated her vagina with his penis. After a short time, he slung the complainant onto her back, causing her to strike her head against the wall. He then penetrated her vagina with his penis. During this time he held a knife in his teeth. After ejaculating he removed the knife from his mouth and tongue-kissed the complainant. After that he inserted his penis into her anus. Next, he attempted to force his penis into the complainant's mouth, eventually succeeding in doing so. He then inserted a sheet into the complainant's vagina with his fingers in an attempt to remove DNA. He wiped between her buttocks using the sheet. He obtained the

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complainant's car keys after threatening her with a knife. He drove away in her car, taking with him the complainant's handbag, mobile phone and cash to the value of approximately $80.

18 The offender pleaded guilty on the fast-track. He had offended constantly since turning 18. He had numerous convictions for burglary and some for violence, but none for sexual offences. He was sentenced to a term of 4 years' imprisonment (all of the terms to which I refer have been reduced by one-third to equate to the transitional regime) in respect of the aggravated burglary, terms ranging between 8 months' imprisonment and 16 months' imprisonment in respect of the aggravated indecent assaults, a term of 2 years and 8 months' imprisonment in respect of the attempted aggravated sexual penetration, terms ranging from 4 years and 8 months to 8 years' imprisonment in respect of the aggravated sexual penetrations and a term of 2 years and 8 months' imprisonment in respect of each of the aggravated armed robbery and the theft of the motor vehicle. All terms were ordered to be served concurrently, giving rise to a total term of 8 years' imprisonment. That term was ordered to be served cumulatively on sentences imposed on other counts, giving rise to a total effective sentence of around 23 years' imprisonment. On the appeal, the court did not interfere with any of the individual sentences imposed (although it varied orders that had been made for cumulation so as to reduce the total effective sentence to one of approximately 19 years' imprisonment).

19 In R v Cleak [2004] WASCA 72, the 18-year-old offender was convicted on one count of sexual penetration without consent. He pleaded guilty, but only at the conclusion of the prosecutor's opening address at his trial. The complainant was a 16-year-old woman. The offender had known her for most of his life. She regarded him as if he were a brother. She attended a party at his home. She drank a substantial quantity of alcohol and became very intoxicated. Her friends laid her on the offender's bed, where she fell into a 'dead sleep'. While she was asleep the offender had sex with her. The offender had no criminal record of any significance. He was sentenced to a term of 18 months' imprisonment, suspended for 12 months. The State appealed.

20 Wheeler J, with whom the other judges were in agreement, said that, even giving full weight to all mitigating factors, and placing the offence towards the lower end of offences of the kind, she could not see how a sentence of less than one equating to 2 years' imprisonment under the transitional regime could conceivably have been imposed. Because the

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appeal was a State appeal, she reduced that term to one of 20 months' imprisonment.

21 In The State of Western Australia v Miller [2005] WASCA 53, the 25-year-old offender pleaded guilty to one count of aggravated burglary, one of sexual penetration by cunnilingus, one of indecent assault and one of penile sexual penetration. Armed with an iron bar, he had broken into the home of the complainant, a 42-year-old woman. He was intoxicated at the time. He told her that he wanted sex. Realising that she had no choice, she agreed. She asked the offender to have a shower before having sex with her. He did so. He then performed cunnilingus on the complainant, lifted her top and put his mouth on her left breast and then had penile sex with her. At her request, he withdrew before ejaculation. He left the complainant's home after helping her to clean up broken glass from the window that he had smashed in order to gain entry.

22 The offender had a relatively minor criminal record. His plea of guilty was made only on the morning upon which his trial was due to commence. After a successful State appeal he was sentenced to terms of 4 years' imprisonment in respect of the aggravated burglary, 4 years and 8 months' imprisonment in respect of the cunnilingus, 1 year and 4 months' imprisonment in respect of the indecent assault and 5 years and 4 months' imprisonment in respect of the penile penetration. The sentences were structured so as to give rise to a total term of 6 years' imprisonment.

23 In Rigby v The State of Western Australia [2005] WASCA 134, the 28-year-old offender had broken into the complainant's home at night, before committing a number of offences. The noise made by the offender woke the complainant. She went to her kitchen to investigate. She was grabbed by the offender. He forced her into the study and threatened to stab her if she did not stop screaming. The complainant's 3-year-old daughter was woken by the screaming and left her bedroom. The offender ordered the complainant to return her daughter to the bedroom. He released her so that she could do so. She picked up her daughter and attempted to escape. The offender grabbed the complainant and her daughter and pushed the complainant back towards the study. He closed the study door, leaving the child alone in the hallway, screaming. He removed the complainant's clothing and then penetrated her vagina with his penis until ejaculation.

24 The offender pleaded guilty at a late stage. He had a history of prior convictions, albeit not for sexual offences. He was on parole at the time

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of committing the offences. He was sentenced to a term of 2 years and 8 months' imprisonment in respect of the aggravated burglary, to terms of 16 months' imprisonment in respect of each of two counts of deprivation of liberty and to a term of 5 years and 4 months' imprisonment in respect of the aggravated sexual penetration. The sentences were structured so as to give rise to a total term of 9 years and 4 months' imprisonment. His appeal was unsuccessful.

25 In The State of Western Australia v Turaga [2006] WASCA 199, the 28-year-old offender was convicted on one count of deprivation of liberty, one count of threatening to kill and 15 counts of aggravated sexual penetration without consent. He pleaded guilty to the offences on the fast-track system.

26 The offender had been in a de facto relationship with his victim. However, at the time of the offending, she had taken out a violence restraining order against him. In breach of the order, he waited for her one morning at her home. When she entered, he prevented her from leaving. He then pulled a knife from behind his back, held it to her throat and demanded that she walk to the bedroom. He ordered her to remove her clothes. He committed 14 offences of sexual penetration involving digital, oral and penile penetration of the vagina and one of penile penetration of the anus. During the sustained course of offending he rubbed his genitals on the complainant's face and chest, cut her hair, made her crawl on her hands and knees to various locations in the house and demanded that she dance for him. The offending persisted over three hours, during which the complainant was repeatedly subjected to conduct designed to demean, degrade and humiliate her. At the time of the offending the offender was on parole for an offence of aggravated sexual penetration without consent that had been committed against the same complainant.

27 After a successful State appeal, the offender was sentenced to a term of 2 years and 8 months' imprisonment in respect of each of the counts of unlawful detention and threatening to kill, terms of 3 years and 4 months' imprisonment in respect of each of the offences involving digital and oral penetration and terms of 4 years' imprisonment in respect of each of the other offences. For totality reasons the sentences were structured so as to give rise to a total effective sentence of 7 years and 4 months' imprisonment. This took into account the principles applicable to State appeals. That sentence was to be served cumulatively upon 490 parole days that were owing by the offender. Wheeler JA, in the minority, would

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have imposed a total effective sentence of 8 years' imprisonment to be served cumulatively upon the outstanding parole days.

28 In Clarkson v The State of Western Australia [2006] WASCA 250, the 21-year-old offender was convicted of three offences. These were indecent assault in company, unlawful detention and aggravated sexual penetration without consent. By his offending, the offender breached a suspended imprisonment order of 12 months in relation to a charge of assault occasioning bodily harm.

29 The offences were committed in the early hours of the morning. The complainant, who was known to the offender and a friend who was with him, had missed her train. The two men told her that they had a friend who lived nearby and who could give her a lift home. As they were walking along the street, the two men discussed sexually assaulting the complainant. They took their opportunity when she asked them to wait as she went behind some bushes adjacent to the path because she needed to urinate. The appellant followed her into the bushes. He grabbed her vaginal area through her jeans, giving rise to the charge of indecent assault. She ran away. The two men chased her. They grabbed her, preventing her from getting to the road. This gave rise to the charge of unlawful detention. The appellant then forced the complainant into some bushes, pushed her to the ground, removed her clothing and penetrated her vagina with his penis. He threatened to cut her throat if she screamed.

30 The appellant suffered from an antisocial personality disorder and had obvious cognitive defects which may have been a result of substance abuse. Reports prepared in respect of him did not suggest a direct causal link between his psychiatric and psychological problems and his offending. He made an early plea of guilty. He had a lengthy criminal record. He was sentenced to terms of 6 months' imprisonment in respect of the unlawful detention, 12 months' imprisonment for the indecent assault and 4 years' imprisonment for the aggravated sexual penetration. The term of 6 months was ordered to be served concurrently with the other terms, which were to be served cumulatively. Those terms were also ordered to be served cumulatively upon the term of 12 months' imprisonment imposed in respect of the assault occasioning bodily harm. His appeal against sentence was dismissed.

31 In McKerlie v The State of Western Australia[No 2] [2006] WASCA 274, the 44-year-old offender was convicted, after a trial, on one count of indecent assault and two counts of sexual penetration without consent. He had planned to seduce a 20-year-old girl who he had taken in

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as a boarder. He plied her with alcohol. When she went to lie down in her room, he followed her. She turned her back to him hoping he would go away. He began to massage her and, notwithstanding that she resisted, undid her bikini top and attempted to remove her shorts. He sucked her breast. She swore at him and told him to get out of her room. He left. The complainant put on other clothes and fell asleep. She awoke to find the appellant back in her room, massaging her. He inserted his finger and thumb into her anus. She told him to get out. He left the room. Once again, he returned while she was asleep. On this occasion he removed her shorts and penetrated her vagina with his penis. He was sentenced to a term of 12 months' imprisonment in respect of the indecent assault, to one of 3 years and 8 months' imprisonment in respect of the first sexual penetration without consent and to a term of 4 years and 8 months' imprisonment in respect of the second sexual penetration. The sentences were ordered to be served concurrently. His appeal against sentence failed.

32 In Bentley v The State of Western Australia [2007] WASCA 38, the court was concerned with two groups of offences, both committed in March 2001. The offender had earlier committed a third group of offences in June 2000 (2000 offences). The 2000 offences involved a 16-year-old girl. After drugging the girl, the offender tied her up. He then penetrated her with his penis, in her mouth and in her vagina. The total effective sentence that had been imposed in respect of these offences was one of 12 years' imprisonment (8 years under the transitional regime). The offender had, by then, already a serious criminal record involving a number of violent offences.

33 The 2001 offences (to which the offender pleaded not guilty) consisted of one count of armed robbery, one of unlawful detention, seven of sexual penetration without consent in circumstances of aggravation and one of burglary. The offender had been on bail at the time, arising out of the commission of the 2000 offences. The circumstances of the offences were as follows.

34 The offender followed a young woman from her place of work to her home. He asked if he could use her telephone. He gained entry to her home. He produced a knife and demanded money. She gave him $25. During the course of the afternoon, the appellant subjected the complainant to a series of sexual assaults involving sexual penetration, by his penis, of her mouth and vagina, cunnilingus and fellatio. He repeatedly threatened the complainant with the knife. He demanded that she engage in conduct which he considered to be sexually attractive. For

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example, he made her dress up in clothing he selected and made her assume what he thought to be sexually attractive poses. He also rummaged around the house, leaving beer bottles in various places so as to create the appearance that he and the complainant had been drinking together and had engaged in consensual sexual intercourse. That was the case which he ultimately put to the jury. Finally, he stole the complainant's watch and other property. The entire series of events took more than two hours.

35 Later that afternoon, the offender approached a 17-year-old woman. He held a knife against her and forced her into the passenger side of her car. He got into the driver's side and, after forcing the complainant to help him disconnect an immobiliser, drove off with the complainant in the car. He demanded money from the complainant. She was able to give him only $6. He made her write out her bank account details on a piece of paper so that he could access her account by means of her credit card. At one point, he stopped the car and told the complainant to get into the boot. After she protested, he allowed her to remain in the passenger seat. He forced the complainant to share a beer and some marijuana with him, presumably with the idea of creating the impression of a consensual social relationship. At one point, he dropped his knife in the car. He told the complainant to look for it. She took advantage of the opportunity to escape. After she had done so, the appellant used her credit card at an automatic teller machine to withdraw $600 from her account.

36 The offender had a lengthy criminal record in a number of States. He pleaded guilty at a very late stage. He suffered from a schizoaffective disorder that pre-dated his offending and which, by the time of the appeal, was being managed by medication. His mental illness was found to have contributed to his offending, to some degree.

37 Wheeler JA, with whom Buss JA and I agreed, said that appropriate standards of sentencing for offending involving a prolonged and degrading series of sexual attacks facilitated by the use of a weapon had recently been considered in Turaga. Applying the standards of sentencing discussed in that case, Wheeler JA concluded that an appropriate sentence for each of the counts involving penetration of the first complainant's vagina or mouth with the appellant's penis was 4 years' imprisonment. She said that an appropriate sentence for each of the counts of digital penetration or cunnilingus would be 2 years and 4 months' imprisonment. She imposed a total sentence, as regards the offences committed against the first complainant, of 7 years and 8 months' imprisonment. That took into account the robbery and burglary offences

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and the detention. As regards the offences committed against the second complainant, she imposed a term of 4 years and 8 months' imprisonment in respect of the unlawful detention, 1 year's imprisonment in respect of each of the armed robberies and 6 months' imprisonment in respect of each of the stealing offences. For totality reasons she ordered that all of those terms be served concurrently.

38 The total effective sentence imposed in each case was ordered to be served cumulatively upon the other, giving rise to a total term of 12 years and 4 months' imprisonment. This was ordered to take effect after the appellant had served 4 years of the term imposed in respect of the 2000 offences.

39 Wheeler JA stressed that the total sentence of 12 years and 4 months' imprisonment, and each of the individual sentences, took account of the appellant's relatively severe mental illness, his co-operation, his treatment and other factors in the case. She said that it should not be seen as representing an appropriate sentence for such a very serious course of offending in the usual case.

40 In Ugle v The State of Western Australia [2007] WASCA 199, the 36-year-old offender was convicted, after late pleas of guilty, on one count of indecent assault while armed, two counts of sexual penetration without consent while armed, one count of sexual penetration without consent and with bodily harm and one count of aggravated burglary.

41 The offender had gained entry to the complainant's home in the early hours of the morning after knocking on her bedroom window. He threatened her with physical harm if she did not have sex with him. She refused. He threatened her with a clothes iron. He forced her to masturbate him. Then, after threatening her with a crochet needle, he pushed her onto the bed and engaged in cunnilingus before penetrating her with his penis. While doing so he put his hands around her neck and choked her so as to stop her from struggling. After penetrating her for a considerable period, he withdrew and ejaculated over her abdomen. He then made the complainant shower, threatening to kill her if she tried to escape. After she had showered, he forced her to her knees and again sexually penetrated her with his penis. He directed her to shower again. He then took her to the living room and demanded money. She said that she had none. He used her iron as a weapon, hitting her on the arms, head and stomach and wrapping the cord around her throat to choke her. He stole a number of items from her home.

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42 The sentencing judge imposed terms of 2 years and 8 months' imprisonment in respect of the indecent assault, 4 years and 6 months' imprisonment in respect of the cunnilingus, 8 years and 1 month's imprisonment in respect of the sexual penetration with bodily harm, 9 years' imprisonment in respect of the sexual penetration while armed and 7 years and 2 months' imprisonment in respect of the aggravated burglary. None of these sentences was reduced in order to take account of the transitional provisions. The sentencing judge had wrongly thought it necessary only to reduce the total sentence by one-third. She calculated that this gave rise to a total term of 11 years and 1 month. The appeal was allowed, but only to the extent of making the appellant eligible for parole.

43 In Thorn v The State of Western Australia [2008] WASCA 36, the offender, who was 23 years old at the time of offending and 34 years old at the time of being sentenced, was convicted, after pleading guilty, on six counts. These were counts of aggravated burglary, unlawful detention (two counts), attempted sexual penetration without consent while armed and sexual penetration without consent while armed (two counts).

44 The offender broke into the complainant's home in the early hours of the morning. The complainant and her 4-year-old daughter were asleep in the same bed. The offender threatened the complainant with a knife. He also stroked the blade of the knife down the daughter's back. He attempted unsuccessfully to penetrate the complainant's vagina with his penis. After threatening her once again, he succeeded in penetrating her and had intercourse until ejaculation. He told the complainant to leave her daughter and enter the lounge room. He made her sit on a chair and again penetrated her vagina with his penis. His involvement in the offences was detected some nine years later.

45 Not long after committing these offences the offender was diagnosed as suffering from schizophrenia and organic psychosis. He had a moderate cognitive deficit as a result of sustaining a severe head injury in 1988. Since 1992, he had been in receipt of a disability support pension. A psychiatrist concluded that he had probably been mentally unwell at about the time of the offences. Between 1989 and 1998 he had been admitted to hospital on a number of occasions. These admissions were related to substance abuse, distress, self-harm ideation, behavioural problems and confusional states. There was some prospect that the medication that the offender had been prescribed could have impaired the clarity of his thinking, induced relaxation and reduced inhibition at the time of his offending. His mental state had improved under treatment since the time of his offending.

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46 The offender had a number of prior convictions. Most concerned traffic offences, but he had also been convicted of arson, burglary, disorderly conduct, fraudulently altering a prescription, possessing a prohibited drug, breach of a probation order and being on premises without lawful excuse. However, the only offence committed since 12 September 1996 was stealing. The offender had not previously served a custodial sentence.

47 The offender was sentenced to a term of 18 months' imprisonment on the aggravated burglary charge. A similar sentence was imposed in respect of the first count of unlawful detention. A term of 9 months' imprisonment was imposed in respect of the second count of unlawful detention (detention of the complainant's daughter). For the attempted sexual penetration, the offender was sentenced to a term of 3 years' imprisonment. On each of the other penetration charges he was sentenced to a term of 6 years' imprisonment. The sentences were structured so as to give rise to a total term of 7 years and 6 months' imprisonment.

48 Buss JA (with whom Wheeler & Miller JJA agreed) described the offending as falling within 'the worst category of offences of the kind in question' [43]. He said that the offender was fortunate, even after taking into account all relevant mitigating factors, to have received a total effective sentence that was only a little more than half of the maximum that could have been imposed for each count of sexual penetration [50]. The appeal was dismissed.

49 In McAlear v The State of Western Australia [2008] WASCA 39, the 49-year-old offender was convicted, after pleading guilty, on five counts in an indictment. These were the commission of an obscene act in public, making a threat with intent to influence, deprivation of liberty, aggravated indecent assault and attempted aggravated sexual penetration without consent. He also pleaded guilty to seven counts of committing an indecent act in public. These counts were the subject of a notice under s 32 of the Sentencing Act 1995 (WA).

50 The offender had been observing the complainant, a 47-year-old woman. He waited for her in a bush area, knowing that she would walk nearby. When she approached, he confronted her. He was naked apart from a pair of underpants which he had adapted into a form of mask over his face. He masturbated in front of her (count 1). He threatened the complainant, telling her that he would not rape her if she played with his penis (count 2). She refused to do so. He then grabbed her by her clothing. He also grabbed her breasts and squeezed them. He asked her

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to perform oral sex on him but she refused. He pushed her to the ground and attempted to tie her hands. The complainant grabbed a stick and struck the offender, but he overcame her and again tried to tie her hands behind her back with cotton strips that he had brought with him. He failed to do so. These facts gave rise to counts 3 and 4 on the indictment. During the struggle, the offender rubbed his penis against the complainant outside her clothing. He pinned her to the ground and tried to get her clothing undone so as to penetrate her with his penis. This gave rise to count 5 on the indictment. The complainant managed to escape.

51 The facts relating to the s 32 notice were that, on seven different occasions between July 2003 and February 2006, the offender had hidden himself in bush near Fremantle and proceeded to masturbate in the presence of females who were either seated at a bus stop or walking near that location.

52 The offender, who had an unfortunate background, had five previous convictions for wilful exposure. He presented a high risk of re-offending. He was sentenced to terms of 1 year's imprisonment on each of counts 1 and 2, 2 years' imprisonment on each of counts 3 and 4 and 3 years' imprisonment on count 5. The sentences were structured so as to give rise to an aggregate sentence of 8 years' imprisonment. Terms of 9 months' imprisonment were imposed on each of the s 32 offences, to be served concurrently with each other, but cumulatively on the 8-year sentence.

53 The appeal succeeded on totality grounds. A total effective sentence of 6 years and 6 months' imprisonment was imposed in lieu of the sentence of 8 years and 9 months' imprisonment that had been imposed by the trial judge.

54 In Michael v The State of Western Australia [2008] WASCA 66, the offender appealed against his conviction on five counts of sexual penetration without consent. The State appealed against the sentence that had been imposed on the offender. Both appeals were dismissed.

55 There were two complainants. Both were prostitutes. The offender had pretended to be a policeman. By that ruse, he succeeded in gaining a discount from the fee that he would otherwise have been charged by the first complainant. He had oral and vaginal sex with her, giving rise to the first three counts on the indictment. In the second case, T and the complainant agreed upon a price of $100 for a 'full service'. They went to an undercover car park. The offender told the complainant that he was a police officer and that she should perform her services for free. She

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agreed to do so. Oral and vaginal sex occurred. This gave rise to counts 4 and 5 on the indictment.

56 The appellant was sentenced to terms of 20 months' imprisonment on each of counts 1, 2 and 4 (all instances of fellatio) and to terms of 2 years' imprisonment on each of counts 3 and 5 (penile/vaginal penetration). The sentence was structured so as to give rise to a total term of 2 years and 10 months' imprisonment. The offender, whose antecedents were favourable, had been convicted after a trial.

57 In the appeal, I said that the sentences imposed, while low, were not so low as to warrant intervention on a State appeal [104]. EM Heenan AJA was not satisfied that there had been any manifest error. Miller JA, in dissent, would have quashed the sentence on count 5 and substituted a sentence of 3 years' imprisonment. He would also have structured the sentences so as to give rise to a total term of 5 years' imprisonment.

58 In Woodley v The State of Western Australia [2008] WASCA 92, the 47-year-old offender was found guilty, after trial, on one count of aggravated burglary (count 1), one count of assault occasioning bodily harm (count 2), one count of deprivation of liberty (count 3) and one count of sexual penetration without consent (count 4). The complainant in respect of counts 2, 3 and 4 had been the appellant's wife for nearly 30 years. They had separated not long before the commission of the offences. The complainant had obtained a violence restraining order against the appellant.

59 On 12 April 2004, the offender travelled by car, with two female co-accused and another female, to the place where the complainant was living with another man, 'B'. The offender took with him a knife and a pair of scissors. They arrived at B's home at about 4.00 am. The offender entered B's home without consent, leaving his weapons outside the front door. He found the complainant hiding in the bathroom. He grabbed her by her hair and punched her around her head. He then took her into the car, where she was continuously detained during the return trip to Perth. The offender drove the complainant to a house in Cloverdale where he sexually penetrated her vagina with his penis without consent.

60 The offender had a moderate prior record of offending, which was associated with his misuse of alcohol. He accepted no responsibility for his actions and demonstrated no victim empathy. He was sentenced to terms of 2 years and 8 months' imprisonment on count 1, 12 months on

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each of counts 2 and 3 and 4 years on count 4. The sentences were structured so as to give rise to a total effective sentence of 6 years and 8 months' imprisonment. His appeal against sentence was unsuccessful.

61 In Alvarez-Pizalla v The State of Western Australia [No 2] [2008] WASCA 105, the offender was convicted on seven counts. He pleaded guilty to one of them on the morning of the trial (count 2) but was convicted on the remaining counts after trial. The counts were deprivation of liberty (count 1), aggravated assault occasioning bodily harm (count 2) and five counts of aggravated sexual penetration (counts 3, 5, 7, 8 and 9).

62 The offender and the complainant had been in a relationship over a period of some five years. In August 2005, the complainant told the offender that the relationship was over. She entered into a new relationship. On 31 October 2005, the offender arrived, unannounced, at the complainant's home. He gained entry through the back of the house. The complainant was inside with her new partner. The offender persuaded the complainant to come to his home to talk to him. There, he detained her. In the course of doing so he struck her a number of times. He demanded that she remove her clothing. He sexually penetrated her vagina with his penis on two occasions. The complainant then showered. After she had done so, the offender demanded further sexual intercourse. The complainant complied, out of fear. There followed three instances of sexual penetration of her vagina with his penis. The offender was sentenced to a total effective term of 7 years and 6 months' imprisonment.

63 Because the appeal was one against conviction, there is little discussion in the judgment concerning the relevant sentencing issues. The appeal against conviction was successful, to the extent that the convictions for aggravated sexual penetration on counts 7, 8 and 9 were set aside and, in lieu, verdicts of guilty of sexual penetration without consent were substituted. This led to the re-sentencing of the offender. In the case of each of counts 7, 8 and 9, a term of 4 years' imprisonment was imposed. Terms of 1 year and 10 months' imprisonment in respect of count 2 and 4 years and 8 months' imprisonment in respect of count 3 were left undisturbed. It is not apparent what sentence was imposed in respect of count 5. However, the sentences imposed on the appeal were structured so as to give rise to an effective total sentence of 7 years and 6 months' imprisonment, being the sentence that had been imposed by the trial judge.

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64 In Cavill v The State of Western Australia [2008] WASCA 108, the 60-year-old offender was convicted, after a trial, on one count of sexual penetration without consent. The offender had offered the complainant, a 23-year-old woman, a room at his house after she had been evicted from the place in which she was staying. He entered the room in which she was, and placed his hands under her tracksuit pants before digitally penetrating her. The sentencing judge described the offence as opportunistic, and not planned. He regarded a sentence of 16 months' imprisonment as appropriate, but reduced that by one month to take account of time spent in prison on remand. The appeal against sentence was dismissed.

65 In The State of Western Australia v Richards [2008] WASCA 134, the 27-year-old offender was convicted, after a trial, on one count of sexual penetration without consent. His victim was a 46-year-old woman who he regarded as if she was his aunt. She was looking for her daughter. The offender claimed to know where the daughter was and offered to drive the complainant there. He drove her to a deserted area and pushed her down. After overcoming her resistance, he succeeded in pulling off some of her clothing and forced his penis into her vagina. He continued to have sex with the complainant until she was able to push him away.

66 The offender lived in a remote community. He was highly thought of there and the offence was out of character for him. He had a relatively minor criminal record. The offence was contributed to by binge-drinking. He was sentenced to a term of 3 years and 6 months' imprisonment, conditionally suspended for 2 years.

67 The State appeal was successful. The sentence imposed was set aside and, in lieu, the court imposed a sentence of 3 years immediate imprisonment. The appellant had, by the time at which he was first sentenced, served some 90 days in custody. The sentence of 3 years' imprisonment took into account principles applicable to prosecution appeals. It also took into account difficulties faced by the offender because he would be required to serve his term of imprisonment at a location distant from his community, family and friends, in circumstances in which he had limited familiarity with the English language. Finally, it took into account the fact that the offender had already suffered a substantial curtailment of his freedom of movement as a result of the conditional orders made by the sentencing judge on 11 October 2007. The court said that, ordinarily, an offence of that kind, where there is no plea of guilty or other exceptional circumstance, could be expected to

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result in a term of around 5 or 6 years' imprisonment, after allowing for the operation of the transitional provisions.

68 As might have been anticipated, this review of the cases reveals that the circumstances of sexual offending, and of sexual offenders, are almost infinitely variable. That, in turn, means that the sentence imposed in one case can provide only very limited guidance in deciding what sentence should be imposed for a similar offence in another case. However, some conclusions can be drawn, as follows:

(1) An average starting point for a case of penile penetration of the vagina without consent, absent circumstances of aggravation, is in the order of 7 years' imprisonment under the former sentencing regime, or around 4 years and 8 months' imprisonment under the transitional regime. That starting point takes no account of any factors in mitigation.

(2) Because the circumstances of sexual offending and sexual offenders are so variable, nothing will be achieved by specifying a range of sentences customarily imposed. The range of potential aggravating features is so huge that features of that kind can either dramatically increase the sentence imposed (bearing in mind that the maximum sentence for an aggravated offence is 20 years' imprisonment: s 326 of the Criminal Code) or have little or no effect on the sentence imposed. The range of potential mitigating factors is at least equally extensive. They might result in a very large reduction in sentence or little or no reduction.

(3) Nor will anything be achieved by specifying a different starting point for each category of sexual penetration without consent. It should not be assumed that one form of sexual penetration is necessarily more, or less, serious than another. As Wheeler JA pointed out in C v The State of Western Australia [2006] WASCA 261 [35], there is no 'hierarchy of sexual penetration'. For example, although digital penetration will ordinarily be less serious than penile penetration, that is not inevitably so. It might, in particular circumstances, be no less serious or even more serious. The seriousness of every offence of unlawful sexual penetration must be determined by its own individual circumstances: C [35] (Wheeler JA); Cavill [266] - [267] (Miller JA).

69 That seems to me to be about as much guidance as can be obtained from the cases. I appreciate that it is less than sentencing judges might wish. However, that is a necessary consequence of the court's obligation

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to tailor each sentence to the individual circumstances of the case, having regard for the maximum penalty provided by the legislature and, to the extent that they can be of assistance, sentences customarily imposed in similar circumstances.

70 McLURE JA: I have had the advantage of reading the reasons for judgment of Steytler P and Miller JA. The facts are set out in the reasons of Miller JA and not repeated here.

71 I agree with the President's conclusions drawn from his review of the cases. The review also establishes that there can be no sensible 'net' range of sentences, that is, a range after all mitigating factors have been taken into account. Further, it must be remembered that the range of sentences customarily imposed for a particular offence does not establish the range of a sound sentencing discretion. Were it otherwise, sentences outside the customary range could not be imposed regardless of the particular circumstances of the case or because of broader considerations including changes in the prevalence of an offence. Moreover, the actual sentence imposed in a comparable case does not mean that is the only correct sentence. The only conclusion to be drawn from sentences imposed in comparable cases is that the sentence in each case was within the sound sentencing range. Against that background I turn to issues in this appeal.

72 The individual sentences imposed by the sentencing judge are appropriately characterised as lenient. That is the case even if, to avoid double punishment, the violence is punished in the sentence on the assault count rather than in the sentences for the sexual offences. In that event the sentence for the assault count should be served cumulatively: Pearce v The Queen (1998) 194 CLR 610 [40]. Although the sentences imposed for the sexual offences are lenient, I am not persuaded they are so low as to be outside the range of a sound sentencing discretion particularly when regard is had to the respondent's fast-track pleas of guilty and his youth. I am fortified in that view by the relatively small increase in the sentences which Miller JA would impose.

73 However, the total effective sentence of 2 years and 6 months does not bear a proper relationship to the total criminality of the appellant's conduct as a whole. The respondent engaged in a sustained course of violence, physical and sexual, against a randomly selected victim. Significant weight had to be given to personal deterrence and the protection of the community having regard to the respondent's lack of remorse and to the diagnosis of paraphelia sexual sadism. This is a case where the totality principle requires departure from the one transaction

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rule to require partial cumulation. I would order that the sentences on counts 1, 2 and 3 (1 year, 2 years 6 months and 18 months) be served cumulatively and the sentence of 18 months on count 4 be served concurrently.

74 I would allow the appeal, set aside the order for concurrency and in lieu thereof order that the sentences on counts 1, 2 and 3 be served cumulatively and the sentence on count 4 be served concurrently with the sentences on counts 1, 2 and 3. The total effective sentence is increased to 5 years' imprisonment.

75 MILLER JA: The respondent committed four offences against the complainant. The first was an offence of unlawful assault occasioning bodily harm (s 317(1) Criminal Code (WA)), the second an offence of aggravated sexual penetration without consent (s 326 Criminal Code) and the third and fourth offences of attempted aggravated sexual penetration (s 326 and s 552 Criminal Code). Each of the offences of aggravated sexual penetration and aggravated attempted sexual penetration had, as a circumstance of aggravation, the doing of bodily harm to the complainant. The offence of sexual penetration involved the penetration by the respondent of the complainant's vagina with his fingers. The two offences of attempted aggravated sexual penetration involved attempted vaginal penetration of the complainant by the respondent with his penis.

76 The respondent pleaded guilty in the District Court at Perth on the 'fast-track' and was dealt with on 2 May 2008 by Eaton DCJ. He was sentenced to 12 months' imprisonment on the first count, 2 years 6 months' imprisonment on the second count and 18 months' imprisonment on each of the third and fourth counts. The sentences were all ordered to be served concurrently with the sentenced imposed on the second count. The effective aggregate sentence was therefore 2 years 6 months' imprisonment. From that sentence, the appellant appeals to this court.

77 The grounds of appeal contend that the sentence was manifestly inadequate in all the circumstances, both in terms of the total term of imprisonment imposed and the individual terms imposed for the offences of aggravated sexual penetration and attempted aggravated sexual penetration. It is also argued that the sentencing judge placed undue weight upon the respondent's youth and need for rehabilitation, failing to give sufficient weight to the need for personal and general deterrence.

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The facts

78 The facts which were put before the court, and which were accepted by counsel for the respondent, were as follows. At about 9.35 pm on 10 February 2008 (a Sunday), the 17-year-old complainant was walking around the perimeter of the Yokine Reserve in Wordsworth Avenue, Yokine. She was listening to her iPod, or MP3 player, and it was her habit to walk around the reserve of an evening.

79 The respondent followed the complainant. He approached her and asked her the time. The complainant switched her iPod to a different function, noted the time and informed the respondent of it. She then continued walking, but shortly afterwards the respondent ran to her, grabbed her by the neck and threw her to the ground. He held her down by the shoulders on her back and when she started screaming he punched her four to five times in the face. The complainant continued to scream for help, but the respondent yelled 'no' to her and punched her again in the face. This time, he punched her between three and five times.

80 The respondent pulled the complainant's shorts and underwear down to her knees. He inserted his fingers into her vagina. He also rubbed the external area of her vagina with his hands.

81 The complainant struggled to get free and she screamed for help. The respondent again punched her in the face. The complainant then asked the respondent if he would let her go. She stopped screaming to avoid being hit again. The respondent said that he would let her go 'afterwards'.

82 The respondent then pulled down his own pants and exposed his penis. He attempted to insert it into the complainant's vagina. The complainant struggled and the respondent was unable to penetrate her. She managed to break free and run away. She was wearing only a singlet at this time.

83 The respondent caught up with the complainant and grabbed her by the hair and shoulder. He pushed her to the ground and she landed on her back. He again attempted to penetrate the complainant's vagina with his penis. He was unable to do so because the complainant was struggling violently.

84 Two persons then approached the complainant and the respondent. The respondent was pulled off the complainant and, although he ran off, he was chased and caught. He adopted a martial arts stance and attempted

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to deliver kicks at his pursuer, but he was grabbed, pinned to the ground and held until police arrived.

85 In his sentencing comments, the sentencing judge noted that, whilst he was being held, the respondent said to his pursuer 'kill me, kill me' and repeatedly told the man that he had tried to rape the complainant. He asked the man who was holding him 'please sir, can you kill me'. He also mentioned an incident in which he believed there had been inappropriate sexual activity within his family. He threatened to kill his pursuer if he told anybody about it.

Submissions on behalf of the respondent

86 At the sentencing hearing, the respondent's counsel stated frankly that he was not 'really in a position to cast an awful lot of light on to this'. He said that it was very difficult to get to the root of the matter, but his instructions revealed that the respondent had been at a friend's house where there had been some drinking and an argument had developed. The respondent had punched his friend, but had then, in turn, been overpowered and beaten up. He had then been thrown out of the house.

87 Counsel submitted that the respondent 'felt diminished' by this experience and for some unexplained reason he attacked the complainant, who walked past him. He conceded that the respondent had admitted to longstanding thoughts and fantasies about brutalising women, including rape and murder.

88 The full details of the respondent's antecedents and background were put before the sentencing judge. These were, in turn, contained within a pre-sentence report and a psychiatric report to which I will make further reference.

Sentencing

89 The sentencing judge reviewed the facts of the case and made reference to the injuries sustained by the complainant. These were the subject of a report from the Sexual Assault Referral Centre. There was evidence on examination of the complaint of significant injury to the head, right arm, torso and right and left legs. Dr Fiona Sluchniak stated in a report of 8 April 2008 that a general physical examination of the complainant revealed tenderness on palpation of the four front upper teeth; soft tissue swelling of the face, lips and left side of the torso; multiple bruises on the face, lips, left side of the torso and left lower leg; haematomas of the scalp; abrasions on the face, right elbow, right

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forearm, left side of the torso, both knees and both lower legs; and dried blood in the right nostril.

90 Photographs of the injuries sustained by the complainant have been made available to the court. They reveal, in particular, extensive facial bruising to both the right and left sides of the face.

91 The sentencing judge made reference to the respondent's personal circumstances. He was just over the age of 18 years and he was the youngest of four children. At the age of 13 years, he went to live with his father when his mother moved to Oman. At the age of 15 years, he lived for a time with an older sister and at the age of 16 years moved back to his mother's home in Perth. She was then still residing in Oman. His relationship with his father was described as volatile. The relationship with his mother was described as remote.

92 The respondent had been introduced to cannabis at a young age and he had become a regular user from the age of 13 years. Since the age of 17 years, he had been a regular user of amphetamines, with occasional use of ecstasy and alcohol. He left school at year 11 level and the sentencing judge found that his life had been unstructured and unguided since that time.

93 The sentencing judge made reference to reports which had been made available to him. The pre-sentence report was troubling. It stated that the respondent's attitude to his offending behaviour was disturbing and he failed to demonstrate any remorse for his actions. He described the incident as 'fun' and said that he had 'no regrets'. He admitted to the fantasies to which I have previously made reference. The summary in the report is to the following effect:

[The respondent] is an 18 year old male before the Courts for a serious and violent sexual offence. Whilst he has no criminal antecedents, he admitted to having long standing thoughts and fantasies about brutalising women, which included rape and murder. Disturbingly, [the respondent] failed to demonstrate any remorse for his actions and presented in a blasé manner throughout the interview process.

94 The psychiatric report of Dr S D Febbo dated 7 April 2008 was to similar effect. Doctor Febbo said:

[A]s [the respondent] described his actions at the time of the offences he appeared detached and lacking in emotion. There was no real evidence to suggest empathy for the victim or the presence of genuine remorse related to his actions.

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From the psychiatric perspective there was no evidence to suggest the presence of a major psychiatric disorder such as a psychotic illness or a significant mood disorder. I do note, however, that [the respondent] would fulfil the diagnostic criteria for the Paraphelia Sexual Sadism. He reported recurrent and intense sexually arousing fantasies involving acts in which the psychological or physical suffering of the victim is sexually exciting.

In addition to the paraphelia I note the presence of marked personality pathology and there were a number of personality traits falling within the Cluster B personality disorders. He reported a number of personality traits consistent with a narcissistic personality disorder in addition to significant borderline, histrionic, and anti-social personality traits.

95 Doctor Febbo described the respondent's prognosis in this way:

His detached description of his actions at the time of the offences, a lack of any genuine remorse, the absence of any victim empathy, the diagnosis of the paraphelia sexual sadism, and the significant personality pathology give rise to concern in relation to the potential for offending in the future notwithstanding the absence of a significant past forensic history.

Having made the above point it is fair to say that [the respondent] is still a young man and his lack in understanding the seriousness of his actions may, at least in part, be explained by his immaturity. In my view again because of his age it is important that the treatment recommendations above are carried out in order to minimise his risk to the community in the future.

The treatment recommendations of Dr Febbo included psychotropic medication, reference to a clinical psychologist, involvement in programmes directed towards sexual offences, and substance abuse counselling.

96 The sentencing judge took account of the respondent's fast-track plea of guilty. He said that the respondent's counsel had urged upon him that there was 'a degree of remorse', but he noted the view of the health professionals that there was a lack of appropriate empathy for the complainant and a tendency to underplay the seriousness of his offending.

97 The sentencing judge regarded the offending as 'very serious indeed' stating that:

You stalked and attacked a slightly built 17-year-old girl who struggled bravely to fight you off. She managed to physically tear away from you on two occasions, only to be pursued and caught again as you single-mindedly, I have to say, and with some violence, pursued your clear intention to rape her.

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Despite your later claim of an inability to obtain an erection, about which I have some misgivings, had it not been for the fortuitous intervention of strangers coming to her aid, you might well have completed your purpose. The seriousness of your offending is such that I have of course little hesitation in concluding that the penalty must be a term of imprisonment to be immediately served. One is always reluctant to arrive at that conclusion for somebody so young.

98 The sentencing judge concluded that there was no question of suspension of the term of imprisonment because of the seriousness of the offence. Indeed, it had not been suggested to him that there should have been any suspension. The sentencing judge regarded the offence constituting count 2 as the most serious of the offences because it involved actual penetration with the fingers. He said that the respondent was 'lucky' that he was unable to fulfil his purpose of penetration with the penis because had he done so the situation would have been far worse than it was.

99 The sentencing judge gave consideration to making the penalty on count 4 cumulative on the penalty that had been imposed on count 2 because the circumstances of the offence constituting count 4 had occurred after the complainant had made a brief escape. However, he determined that all offences were 'part of the one event' and decided on concurrency in relation to all terms of imprisonment which were imposed. The prosecutor apparently conceded that concurrency was appropriate.

Grounds of appeal

Ground 1

100 This ground contends that the aggregate sentence was manifestly inadequate, both in respect of the total term of imprisonment imposed and the individual terms imposed for the sexual offences. The particulars are in the following terms:

(a) The sentence failed to adequately reflect the seriousness of the offences and the circumstances in which they were committed, including

(i) the vulnerability of the complainant at the time that she was attacked;

(ii) the degree of violence inflicted by the respondent on the complainant; and

(iii) the persistence of the respondent's attack on the complainant, in particular in relation to counts (3) and (4).

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(b) The sentences in respect of the offences of aggravated sexual penetration and attempted sexual penetration fell well short of the standards of sentencing commonly observed for such offences.

101 There is no doubt that the offences committed by the respondent, particularly the sexual offences, were of the utmost seriousness. The attack was made on a slightly built 17-year-old girl who was walking in a public park late on a Sunday evening. Substantial violence was inflicted upon the complainant. There was one act of digital penetration and two attempts at penile penetration. On each occasion violence was repeated. The photographs of the injuries sustained by the complainant are testimony to the extent of that violence. Further, the attacks made by the respondent were persistent. Although the complainant managed to get away from the respondent, he caught her. Had the complainant not been rescued by passers-by, the situation may have been much worse than it was.

102 The appellant rightly contends that a significant feature of the majority of sexual assault cases is the element of fear caused to, and the feelings experienced by, the victim. The extent to which fear is experienced is a significant factor. This was made clear in R v Clark [2000] WASCA 229 by Wheeler J (with whom Kennedy and Pidgeon JJ agreed):

... A very significant feature of the majority of sexual assault offences is the element of fear caused to the victim. Whether it is committed by a stranger or by a person known to the victim, the victim will almost inevitably have real fears about the degree of force to which the offender may resort in order to overcome resistance, or to further humiliate her, or to ensure her silence. Many victims fear for their lives and nearly all fear further violence of some kind. The experience is seen by the victim as a degrading one both at the time, and in recollection after the event, and this too is a significant feature of the offence. The extent to which the circumstances are likely to give rise to such fears and to such feelings will be significant factors in determining the seriousness of the particular offence ... [12]

103 In the present case, there was a significant degree of violence used by the respondent and there is no doubt that the complainant must have felt humiliated and degraded. At the time passers-by intervened, she was naked from the waist down.

104 There was, of course, no penile penetration of the complainant. There was one act of digital penetration and two attempted penile penetrations. In Nelson v The Queen (Unreported, WASCA, Library No 950376, 1 June 1995), Malcolm CJ (with whom Walsh and Murray JJ

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agreed) made the following observations about the range of sentences then appropriate for penile penetration and digital penetration:

The general range of sentences commonly imposed for a single act of penile penetration remains of the order of about six years, depending upon the circumstances. Where the victim is under the age of 16 the general range is of the order of eight years. Cases of digital penetration have traditionally been regarded as less serious offences calling for lesser penalties. There was a review of the sentences imposed in a number of cases of digital penetration in

Walley v The Queen

. In that case a sentence of 4-1/2 years was reduced to a sentence of three years. The victim in that case was over the age of 16 years. (9)

105 More recently, in C v The State of Western Australia [2006] WASCA 261, Steytler P (Wheeler and McLure JJA concurring) said:

Podirsky

(1989) 43 A Crim R 404, Malcolm CJ said at 411, in the context of a case which involved penile penetration, that, where there is a series of offences of aggravated sexual assault involving a girl under 16 years, sentences within the range of 9 to 11 years are commonly imposed: see also

Woods v The Queen

(1994) 14 WAR 341. Allowing for the effect of the transitional provisions, this would equate to a range of between 6 and about 7 1/2 years' imprisonment. While offences involving digital penetration have generally attracted lower sentences (see, for example,

Nelson v The Queen

, unreported; CCA SCt of WA; Library No 950376; 1 June 1995;

Ling v The Queen

[2000] WASCA 129;

Germain v The State of Western Australia

[2004] WASCA 293; and

H v The State of Western Australia

[2006] WASCA 53), and while these vary significantly depending upon the nature of the offending, offences of that kind still warrant significant punishment ... [14]

106 In The State of Western Australia v Turaga [2006] WASCA 199, Wheeler JA doubted that certain types of sexual penetration were intrinsically less serious than others and said that the seriousness of the offence of sexual penetration depended upon the circumstances. Her Honour said:

Count 13 is one of performing cunnilingus. Generally, although they are all defined by statute as 'sexual penetration', the Courts would regard counts of oral penetration or digital penetration as being of lesser severity than other types of sexual penetration, following

Ibbs v The Queen

(1987) 163 CLR 447. However,

Ibbs

is not authority for the proposition that some types of sexual penetration are intrinsically less serious than others; rather, it was recognised in that case that the seriousness would depend upon the circumstances ... [16]

107 In Turaga,McLure JA (with whom Buss JA agreed) described the circumstances of, and surrounding, the offences in question to be very
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serious and calculated to 'demean, degrade and humiliate the complainant'. McLure and Buss JJA allowed the appeal and imposed a total effective sentence of 7 years 4 months' imprisonment. Wheeler JA would have imposed an effective sentence of 8 years' imprisonment.

108 Generally speaking, it can be taken that sentences for offences of digital penetration will be lower than for penile penetration, but, as Wheeler JA emphases in Turaga, the seriousness of the individual case depends upon the circumstances. This case was particularly serious. Although there was only one act of digital penetration and the acts of attempted penile penetration were only attempts, the surrounding circumstances of violence elevate the case into a serious category.

109 This brings me to the general range of sentences presently appropriate in cases of sexual penetration without consent.

110 In R v Quartermaine [2000] WASCA 341, Wheeler J (with whom Kennedy and Wallwork JJ agreed) said:

The maximum penalty prescribed for the offence of sexual penetration without consent in the absence of circumstances of aggravation is 14 years' imprisonment. While there is no 'tariff' for offences of sexual penetration without consent, and the cases show that sentences imposed vary substantially, the general range of sentences commonly imposed for a single act of penetration of the vagina with the penis where the victim is over the age of 16, remains of the order of about 6 years:

R v Podirsky

(1989) 43 A Crim R 404 at 411 per Malcolm CJ,

Nelson v The Queen

, unreported; CCA SCt of WA; Library No 950376; 1 June 1995 at 9 per Malcolm CJ. A sentence of this kind is generally at the lower end of the scale for offences of this type, and is often the sentence which is imposed after taking into account mitigating factors:

Brockman v The Queen

, unreported; CCA SCt of WA; Library No 970044; 4 February 1997 at 8 per Malcolm CJ. I have noted in

R v Clark

[2000] WASCA 229 factors which will be relevant to an evaluation of the seriousness of the offence (at [12]), and it may be that an evaluation of these factors leads to the view that the appropriate sentence in any case is well in excess of 6 years, while on other and generally less common occasions, it may be that the sentence called for will be less (perhaps even substantially less). [16]

Her Honour added:

I would emphasise that these are sentences imposed for a single act of penetration and that the commission of other offences at or about the same time, whether or not they may be regarded ultimately as part of 'one transaction', may well have the effect of significantly increasing the seriousness of the conduct so as to call for a sentence in excess of that commonly imposed. [17]

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111 In Turaga, Wheeler JA (at [12]) expressed the view that a 'pre-transitional' range of 6 - 9 years' imprisonment is appropriate, with a sentence of 6 years generally regarded as at the lower end of the scale and often a sentence taking into account mitigating factors. Her Honour said at [12]:

Performing for myself the task of arriving at an appropriate sentence for each of the offences on the indictment, I would approach the sexual offending in this way. While there is no tariff for sexual penetration without consent, the general range of sentences commonly imposed prior to the

Sentencing Legislation Amendment and Repeal Act 2003

(WA), for a single act of penetration of the vagina with the penis where the victim is an adult was of the order of 6 to 9 years. The sentence of 6 years was generally regarded as one toward the lower end of the scale, and was often imposed after taking into account mitigating factors:

R v Cleak

[2004] WASCA 72 at [13].

112 In the same case, McLure JA saw the pre-transitional range as 6 - 9 years' imprisonment without mitigating factors. Her Honour said at [35]:

There is no tariff for offences of sexual penetration without consent. However, prior to the commencement of the Sentencing Amendment Act, the sentence for a single act of penetration of the vagina with the penis where the victim is over the age of 16 was (without regard to mitigating factors) in the range of 6 to 9 years (now 4 to 6 years). The dominant sentencing considerations are punishment and general and specific deterrence:

R v Cleak

[2004] WASCA 72 per Wheeler J at [13].

Buss JA agreed with McLure JA.

113 In the present case, the respondent was charged with aggravated sexual penetration without consent, the maximum penalty for which is 20 years' imprisonment. He was also charged with aggravated attempted sexual penetration without consent, the maximum penalty for which is 10 years. In addition, he was charged with assault occasioning bodily harm, the maximum penalty for which is 5 years. Of course, the violence is relevant to all charges and it is not suggested by the appellant that the sentence for assault occasioning bodily harm should be served other than concurrently with the other sentences.

114 In the present case, the offence of aggravated sexual penetration without consent (count 2) was undoubtedly the most serious of the offences committed by the respondent. However, the attempted penile penetrations of the vagina were also serious offences. For the three

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offences, the sentencing judge imposed sentences of 2 years 6 months (count 2) and 18 months (counts 3 and 4).

115 The appellant contends that the sentences on counts 2, 3 and 4 (the sexual offences) were manifestly inadequate, both in terms of the individual sentences and the aggregate sentence.

116 In my opinion, the aggregate sentence was manifestly inadequate in the circumstances of the case. It failed to reflect the totality of the respondent's criminal conduct: Jarvis v The Queen (1993) 20 WAR 201 (Ipp J) at 207; Walgar v The State of Western Australia [2007] WASCA 241 (McLure JA) at [9]. The aggregate sentence can properly be described as unreasonable and plainly unjust: House v The King(1936) 55 CLR 499. A 'substantial wrong' can be said to have occurred (House (as before)), and it follows that this court must resentence the respondent.

117 In my view, the sentence of 2 years 6 months for the offence of aggravated sexual penetration without consent was inadequate. Having regard to the circumstances of the offence (and to the range of sentences referred to by both Wheeler and McLure JJA in Turaga (and without deciding whether the post-transitional range is 4 - 6 years with or without mitigating circumstances)), I consider that an appropriate sentence on count 2 should have been 3 years' imprisonment. On counts 3 and 4, sentences of 2 years' imprisonment should, in my view, have been imposed.

118 The offences committed by the appellant were no doubt committed within a relatively short period of time. However, the offence the subject of count 4 occurred after the complainant had broken away and after the appellant had chased and caught her.

119 It seems to me that, although the offences may be described as 'part of the one transaction', principles of totality (in the sense of the total criminality of the appellant's conduct) require that the sentences imposed on counts 2 and 4 should be served cumulatively, with the other sentences being served concurrently. The result is that the aggregate sentence that properly reflects the total criminality of the appellant's conduct is one of 5 years' imprisonment.

120 The present case is one to which s 41(4)(b) of the Criminal Appeals Act 2004 (WA) applies. The respondent was sentenced by the sentencing judge after the coming into operation of the Criminal Law and Evidence Amendment Act 2008 (WA) on 23 April 2008. Accordingly, the court must not take into account, in allowing the appeal, the fact that the

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respondent is again sentenced for the offences with which he was dealt by the sentencing judge:

The State of Western Australia v Richards

[2008] WASCA 134;

The State of Western Australia v Porter

[2008] WASCA 154 [21] (Miller JA). The principles to be applied are those which apply to an appeal by a sentenced person. (See

House

(

supra

) per Dixon, Evatt and McTiernan JJ, 504 - 505;

Lowndes v The Queen

[1999] HCA 29 [15]; (1999) 195 CLR 665 [15];

The State of Western Australia v Wallam

[2008] WASCA 117 per Miller JA [66] - [67].)

121 I would allow the appeal on ground 1 and increase the sentences to be served by the respondent on counts 2, 3 and 4, so that those sentences now become sentences of 3 years' imprisonment and 2 years' imprisonment respectively. The sentences on counts 2 and 4 should be served cumulatively and the other sentences concurrently with that imposed on count 2. The effective aggregate sentence is one of 5 years' imprisonment.

Ground 2

122 The second ground of appeal contends that the sentencing judge placed undue weight on the respondent's youth and need for rehabilitation, and failed to give sufficient weight to the need for personal and general deterrence.

123 As I have already concluded that the totality of the respondent's criminal conduct required a more severe aggregate sentence than that which was pronounced, it is unnecessary to deal with this ground. It is sufficient to say that the circumstances of the respondent's offending called for a significant deterrent aggregate sentence. The personal circumstances of the appellant were important, but they were of limited importance in a case of this nature: VIM v The State of Western Australia [2005] WASCA 233; (2005) 31 WAR 1 [320]; The State of Western Australia v Porter [2008] WASCA 154 (Steytler P) [8]. Although both of these cases were concerned with sexual offences against children, the principles stated are applicable to the present case. The dominant sentencing considerations are punishment and general and specific deterrence: R v Cleak [2004] WASCA 72 (Wheeler JA) [13]; Turaga (McLure JA) [35].

124 I would allow the appeal, quash the sentences imposed on counts 2, 3 and 4 and substitute for those sentences, sentences of 3 years' imprisonment on count 2 and 2 years' imprisonment on each of counts 3 and 4. The sentences imposed on counts 2 and 4 should be served cumulatively and the sentences imposed on counts 1 and 3 should be

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served concurrently with the sentence on count 2. The effective sentence becomes a sentence of 5 years' imprisonment. The sentence should take effect from 10 February 2008, and the respondent should be eligible for parole.

The State of Western Australia v Akizuki

[2008] WASCA 267

23 DECEMBER 2008

THE STATE OF WESTERN AUSTRALIA -v- AKIZUKI [2008] WASCA 267