The State of Western Australia v Cameron

[2004] WASCA 299

THE STATE OF WESTERN AUSTRALIA -v- CAMERON [2004] WASCA 299

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2004] WASCA 299
Court:	COURT OF CRIMINAL APPEAL
Case No:	CCA:51/2004	Heard:	9 AUGUST 2004
Coram:	MURRAY J STEYTLER J PULLIN J	Delivered:	15/12/04
No of pages:	10	Judgment Part:	1 of 1
Result:	Appeal dismissed
Category:	B
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Parties:	THE STATE OF WESTERN AUSTRALIA BRADLEY KEVIN CAMERON
Catchwords:	Criminal law and procedure Sentencing State appeal against inadequacy of sentence imposed on one of a number of co­offenders Sexual offences committed on one occasion against one complainant Three offences of aggravated sexual penetration Sentences of 3 years imprisonment to be served concurrently Whether any sentences should have been imposed cumulatively Whether sentences manifestly inadequate
Legislation:	Nil
Case References:	Dinsdale v The Queen (2000) 202 CLR 321 Goddard v The Queen (1999) 21 WAR 541 R v Brougham (1986) 43 SASR 187 R v Button (2002) 54 NSWLR 455 R v White [2002] WASCA 112 Lowndes v The Queen (1999) 195 CLR 665 R v Hough [2002] WASCA 42

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : COURT OF CRIMINAL APPEAL CITATION : THE STATE OF WESTERN AUSTRALIA -v- CAMERON [2004] WASCA 299 CORAM : MURRAY J

STEYTLER J
PULLIN J

HEARD : 9 AUGUST 2004 DELIVERED : 15 DECEMBER 2004 FILE NO/S : CCA 51 of 2004 BETWEEN : THE STATE OF WESTERN AUSTRALIA

Appellant

AND

BRADLEY KEVIN CAMERON
Respondent

ON APPEAL FROM:

Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA

Coram : HEALY DCJ

Citation : R -v- CAMERON & ORS

File No : IND KAL102 of 2002

Catchwords:

Criminal law and procedure - Sentencing - State appeal against inadequacy of sentence imposed on one of a number of co­offenders - Sexual offences

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committed on one occasion against one complainant - Three offences of aggravated sexual penetration - Sentences of 3 years imprisonment to be served concurrently - Whether any sentences should have been imposed cumulatively - Whether sentences manifestly inadequate

Legislation:

Nil

Result:

Appeal dismissed

Category: B

Representation:

Counsel:

Appellant : Mr D Dempster
Respondent : Mr C L J Miocevich

Solicitors:

Appellant : State Director of Public Prosecutions
Respondent : Aboriginal Legal Service

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

Dinsdale v The Queen (2000) 202 CLR 321
Goddard v The Queen (1999) 21 WAR 541
R v Brougham (1986) 43 SASR 187
R v Button (2002) 54 NSWLR 455
R v White [2002] WASCA 112

Case(s) also cited:

Lowndes v The Queen (1999) 195 CLR 665
R v Hough [2002] WASCA 42


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1 MURRAY J: This appeal by the State is against sentences passed for three offences of sexual penetration of which the respondent was convicted by a jury in the District Court at Kalgoorlie on 7 February 2004. On 5 April 2004 the trial Judge sentenced the respondent to 3 years imprisonment for each offence. The sentences were to be served concurrently with eligibility for parole. To provide for time already served in custody, their commencement date was backdated to 24 November 2003. The respondent would therefore become eligible for parole on about 24 May 2005.

2 This being an appeal by the State, it is to be dealt with in accordance with principles clearly laid down by the courts. In the first place, the appeal is to be approached upon the basis that it should be primarily concerned with the correction of errors of principle for the purpose of ensuring, so far as possible, that there will be uniformity of sentencing. Courts of appeal will therefore move to correct sentences on appeals by the State when error has occurred in the exercise of sentencing discretion of a kind which may have a general impact upon the sentencing process. For that reason, appeals against the inadequacy of sentence ought to be a comparative rarity.

3 Further, it is recognised that such an appeal has an element of double jeopardy involved in it because it again places the offender in jeopardy of punishment if the sentence is quashed on appeal and the offender is required to be resentenced. For that reason it is accepted that the State must establish the error of which it complains, with abundant clarity. Further, where the appeal court is moved to intervene on such an appeal, it will do so by substituting a sentence towards the lower end of the available range of sentences: Dinsdale v The Queen (2000) 202 CLR 321, 340-1 [61] – [62].

4 Here the State advances three grounds of appeal as follows:

"1. The learned sentencing Judge erred in ordering that each of the terms of imprisonment be served concurrently.

PARTICULARS

While the respondent was guilty of counts (5) and (6) on the basis of section 7(c) of the Criminal Code, he was guilty of count (7) on the basis of section 7(a) of the Criminal Code and a cumulative or partly cumulative sentence should have been imposed on that count.

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2. The learned sentencing judge erred in imposing an overall sentence which failed adequately to reflect the total criminality of the offending behaviour.

3. The learned sentencing judge erred in disregarding for the purposes of sentencing the conviction of the respondent for the aggravation of being in company in count (7)."

5 I have mentioned that the respondent was convicted after a trial by jury. He was tried with three co-offenders for offences committed upon the same complainant on the one occasion. So far as it is known what sentences were passed for the offences of which the various offenders were convicted, the position is as follows:

1. One Terri Gordon was convicted of two offences of sexual assault, aggravated by the circumstance that he was in company with the co-offenders. These were counts (5) and (6) on the indictment. The sentences passed on Terri Gordon are not known to me. On 5 April 2004 his Honour the trial Judge adjourned the case of this offender for further investigation before sentence was passed.

2. The co-offenders Kevin Doughty and Ben Gordon were both convicted of unlawfully detaining the complainant and of the offences which were counts (5) and (6) on the indictment, again in the circumstance of aggravation that they were in company with each other and with other co-offenders. Count (5) was an offence committed by Doughty when he introduced his penis into the complainant's mouth. The co-offenders aided the commission of that offence. Count (6) was committed when Terri Gordon penetrated the complainant's vagina with his penis, again with the aid of the co-offenders.

Doughty was sentenced to imprisonment for 1 year for the unlawful detention. He was sentenced in respect of count (5), the offence where he was the principal offender, to 4 years imprisonment to be served cumulatively. In respect of count (6), where he aided Terri Gordon, he was sentenced to 4 years imprisonment to be served concurrently, making an aggregate term of 5 years imprisonment.

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Ben Gordon was also sentenced to imprisonment for 1 year for the unlawful detention. In respect of counts (5) and (6), in neither of which he was the principal offender, but in respect of both of which he was an aider, he was sentenced to 3 years imprisonment to be served concurrently, but cumulatively upon the sentence for the unlawful detention. That made an aggregate in his case of 4 years imprisonment.

3. The respondent was not charged with the offence of unlawful detention. He was convicted of three sexual assaults, two of which were counts (5) and (6), both in the circumstance of aggravation that he was in company with the other three offenders. The third such offence was count (7), a sexual assault committed by the respondent as the principal offender when he penetrated the complainant's vagina with his finger. He was allegedly aided by the other three offenders, but each of them was acquitted of that offence.


However, the respondent was found by the jury to be in company with the other offenders. The circumstance of aggravation was pleaded in the indictment in terms that the four alleged co-offenders in respect of count (7) "were in company with each other." And so the odd result is that although all four were charged with count (7), allegedly in company with each other, the respondent was the only one convicted, and of the aggravated form of the offence.

6 It is convenient to deal with ground 3 first. That the offence which was count (7) was to be dealt with in the context of the finding of the circumstance of aggravation was a submission made to but not accepted by the trial Judge, a submission which, in argument in support of ground 3, was repeated to us. If the submission is to be accepted, the effect is to expose the respondent to a maximum penalty of 20 years imprisonment. That is provided by the Criminal Code (WA), s 326, under which the respondent was charged with count (7). On that indictment it was open to the jury under the Code, s 596, to convict the respondent of the offence defined in s 325, sexual penetration without consent; in other words, sexual assault without any circumstance of aggravation. In that event the maximum penalty is 14 years imprisonment. We were not told how the trial Judge directed this jury.
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7 We do not know whether the alternative was left to them. It is probable that the better view is that they intended to convict and did convict the respondent of the aggravated form of the offence defined in s 326. Strictly speaking then, the available maximum penalty was 20 years imprisonment and not 14 years, the maximum penalty to which the trial Judge confined himself. I would take that view because in the context of the sexual offences defined in Ch 31 of the Code, the effect of a finding of a circumstance of aggravation is to result in conviction of a different offence from that which is committed without the circumstance of aggravation, an unusual result in the context of the Criminal Code.

8 The relevant circumstance of aggravation found by the jury is that defined by s 319(1)(a)(ii) that "at or immediately before or immediately after the commission of the offence … the offender is in company with another person or persons." Because of the way the sexual offences are structured, being different offences when committed with, as opposed to without, an alleged circumstance of aggravation, the term "circumstances of aggravation" does not, I think, strictly speaking, bear the meaning given to the term "circumstance of aggravation" by s 1(1). There, that term is defined to mean:

" … any circumstance by reason whereof an offender is liable to a greater punishment than that to which he would be liable if the offence were committed without the existence of that circumstance;"

9 As can be seen, a circumstance of aggravation within the meaning of that definition is one which leaves the offender guilty of the same offence, but committed in more serious circumstances, for the purposes of punishment.

10 However, the circumstance that the offender was in company with another person or persons is one commonly encountered in the Code: eg, in relation to the offence of robbery where the circumstances of aggravation defined by s 391 of the Code include the circumstance that immediately before or at or immediately after the commission of the offence the offender is in company with another person or persons.

11 In R v Button (2002) 54 NSWLR 455 a similarly worded concept of circumstances of aggravation in the context of the offence of aggravated sexual assault was considered by the NSW Court of Criminal Appeal. The Court reviewed previous authorities decided mainly in New Zealand and South Australia, before holding that the concept of being in company

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with another person or persons, whether in the context of an offence such as robbery or sexual assault, was one which involved the physical presence of those with whom the offender committing the offence in that circumstance of aggravation was said to be in company. But whether the offender was in company with those physically present is a question of fact and what may constitute physical presence will depend on the facts of the particular case.

12 Importantly, however, an offender may only be held to be in company with other offenders. That is because the concept involves that those who are in company have a common purpose, eg, to rob or sexually assault, and the circumstance of aggravation may be found where a number of persons together and being physically present have the purpose of facilitating the commission of the offence by assistance mutually rendered (or a preparedness to assist) and by seeking to intimidate the victim or overcome his or her resistance to the commission of the offence. However, if the victim is ignorant of the presence of another apart from the offender that may not necessarily prevent the offender being in company with that other person: per Kirby J at 465 [120] – [123].

13 In R v Brougham (1986) 43 SASR 187 at 191, King CJ, with whom Mohr and von Doussa JJ agreed, said:

"A person commits a robbery, or an assault with intent, in company where that person participates in the robbery or assalt together with another or others in the sense that the victim is confronted by the combined force or strength of two or more persons or that the forces of two or more persons are deployed against the victim. It is not necessary that more than one participant actually strike or rob the victim; it is sufficient that the accused and one or more other participants be physically present for the common purpose of robbing, or assaulting with intent, and of physically participating if required."

14 As to ground 3 of this appeal it is, of course, abundantly clear that, as the trial Judge appreciated, the respondent was convicted of the aggravated form of sexual assault with which he had been charged, contrary to s 326. Technically then the maximum penalty was 20 years imprisonment as opposed to the maximum of 14 years imprisonment applicable to the sexual assault without that circumstance of aggravation. But in reality, in my opinion, the jury having acquitted the other three alleged co-offenders with whom the respondent was alleged to be in company, with the result that the offence in count (7) was committed by

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the respondent alone, the finding of the circumstance of aggravation is difficult to justify as a matter of fact, rather than as a matter of law.

15 Count (7) was, on the evidence, committed at the same time as count (6). In other words, while Terri Gordon, with the assistance of the others, penetrated the complainant's vagina with his penis, the respondent penetrated her vagina with his finger. For sentencing purposes I think the proper view of the commission of the offence in count (7) was that that was an offence committed by the respondent without the aid of any co-offender. While the trial Judge technically erred in expressing the view that the maximum penalty available was 14 years imprisonment, there is nothing to suggest that his Honour mistook in any way the facts concerning the commission of the offence in count (7). And the question therefore remains, in my opinion, whether the sentence of 3 years imprisonment was itself manifestly inadequate or whether it becomes so when viewed in the context of the other offences committed by the respondent.

16 That brings me to ground 1 and the contention that the trial Judge erred in not imposing a cumulative or at least partly cumulative sentence upon the respondent in respect of count (7). In argument it appeared to be accepted that the concurrent sentences imposed in respect of counts (5) and (6) were appropriate because the respondent's involvement in the commission of those offences was as an aider and not as a principal offender. Further, it seems to be accepted that the respondent was a passive aider. He and Ben Gordon came into the room where the other two young men were with the complainant, when she called out for assistance. They did not assist, but rather simply remained present in circumstances where the jury were entitled to find that their presence constituted an assistance or encouragement to the other offenders, Doughty and Terri Gordon, the principal offenders in relation to counts (5) and (6).

17 The trial Judge imposed cumulative terms for the offence of unlawful detention committed by Doughty and Ben Gordon, because his Honour took the view that, although that offence occurred at about the same time as the sexual assaults, it was an offence which was different in character. Therefore, it should not be treated as part of the same transaction, but merited separate cumulative sentences. Necessarily implicit in that observation is the view that the sexual assaults, on the other hand, were properly to be regarded as one continuing course of events being committed one after the other, or at the same time in the case of counts (6) and (7), upon the one complainant. In those circumstances, his Honour's

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decision to allow the sentences he imposed for those offences to be served concurrently was well open and reveals no error of principle in the exercise of the discretion: see generally R v White [2002] WASCA 112 per McKechnie J, with whom the other members of the court agreed.

18 Finally then, there is the contention in ground (2) that overall the sentences imposed were disproportionate to the total criminality of the respondent's conduct. In argument, counsel for the appellant properly conceded that there was a difficulty posed to this ground by the State's failure to appeal against the sentences imposed upon Doughty and Ben Gordon. If the Court were to make a substantial increase in the aggregate term imposed upon the respondent, there would clearly be a danger that the result would create disparity when compared with the sentences imposed upon Doughty and Ben Gordon: see generally Goddard v The Queen (1999) 21 WAR 541.

19 Counsel suggested that this disparity would not be real if the sentence for count (7) was increased and/or ground (2) was upheld. However, for my part, in the context of the statutory framework applicable to the sentencing process since the enactment of the Sentencing Legislation Amendment and Repeal Act2003, which relevantly came into operation on 31 August 2003, the sentence imposed for the offence which was count (7) on the indictment, while lenient, cannot be said to be so manifestly inadequate as to justify intervention by this Court.

20 To put it shortly, the respondent was involved in the commission of the offences which were counts (5) and (6) by his presence, demonstrating a willingness to assist if called upon. And as I have said, count (7) was committed by inserting a finger into the complainant's vagina while Terri Gordon was having intercourse with her. The trial judge noted that the respondent had displayed no remorse and, of course, he did not have the benefit of a plea of guilty in circumstances which saved the complainant the substantial trauma of the trial process and lengthy cross-examination by four counsel.

21 As to the respondent's personal circumstances, he was 21 when the offence was committed. He had a substantial criminal history involving breaches of community based orders and parole. He had had a difficult childhood, living in an environment where there was alcoholism, feuding and instability. A major family tragedy when the respondent was 16 had apparently led to solvent, amphetamine and cannabis abuse and an alcohol problem. Although there was a suggestion of some resulting brain damage there was no suggestion that it diminished the respondent's

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criminal responsibility or his moral culpability in relation to the commission of the offences. It was possible, the trial Judge found, that the respondent would benefit from professional help in prison in relation to what was described as the respondent's "emotional and mental instability". The circumstances, in my view, presented no particular mitigation beyond the relative youth of the respondent.

22 The principal matter which therefore bore upon the decision as to the length of the overall term to be imposed on the respondent was the seriousness of the offending, as it was in the case of the co-offenders. I have said that in that regard I am not persuaded of manifest inadequacy and indeed there is a clear consistency in the trial Judge's sentencing of all three offenders who were before him. Doughty and Ben Gordon received appropriate additional punishment for their commission of the offence of unlawful detention. Doughty received a 4-year term for the offence of penile penetration of the complainant's mouth he committed as a principal offender (and indeed for the offence he committed as an aider). Ben Gordon, whose sexual assaults were all committed as an aider, received 3-year terms. It was clearly appropriate that the respondent should receive the same terms for the same offences committed in the same way. In the circumstances a 4-year term for count (7) could not have been challenged, but neither, in my view, can the 3-year term imposed for a sexual assault by digital penetration during the period when a co-offender was committing a sexual assault by penile penetration.

23 I would dismiss the appeal.

24 STEYTLER J: I have had the advantage of reading the judgment of Murray J. I agree with it and with his Honour's conclusion that the appeal should be dismissed. There is nothing I wish to add.

25 PULLIN J: I have had the benefit of reading in draft the reasons for decision of Murray J. I agree with his Honour's reasons and have nothing further to add.