The State of Western Australia v Hussian - [2020] WASCA 186

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT :   THE COURT OF APPEAL (WA)
CITATION:   THE STATE OF WESTERN AUSTRALIA -v- HUSSIAN [2020] WASCA 186
CORAM:   BUSS P
MAZZA JA
BEECH JA

HEARD:   21 AUGUST 2020
DELIVERED          :   16 NOVEMBER 2020
FILE NO/S:   CACR 89 of 2019
BETWEEN:   THE STATE OF WESTERN AUSTRALIA
Appellant
AND
KADIR HUSSIAN
Respondent

FILE NO/S: CACR 90 of 2019
BETWEEN: THE STATE OF WESTERN AUSTRALIA
Appellant
AND
KALIM AUNG SHEW PYU
Respondent

ON APPEAL FROM:
Jurisdiction              :   SUPREME COURT OF WESTERN AUSTRALIA
Coram:   DERRICK J
File Number            :   INS 145 of 2017

Catchwords:

Criminal law - State appeal against sentence - Respondents convicted after trial - One respondent convicted of three counts of unlawful detention, three counts of aggravated sexual penetration without consent and one count of aggravated robbery - Other respondent convicted of three counts of unlawful detention, three counts of non-aggravated sexual penetration without consent and one count of aggravated robbery - Manifest inadequacy - Totality - Residual discretion

Legislation:

Criminal Appeals Act 2004 (WA), s 24, s 31
Criminal Code (WA), s 325, s 326, s 333, s 392

Result:

CACR 89 of 2019
Appeal allowed
Primary judge's sentencing decision set aside
Respondent resentenced

CACR 90 of 2019
Appeal allowed
Primary judge's sentencing decision set aside
Respondent resentenced

Category: D

Representation:

CACR 89 of 2019

Counsel:

Appellant	:	Ms A L Forrester SC & Ms M M Yeung
Respondent	:	Mr M A Tedeschi

Solicitors:

Appellant	:	Director of Public Prosecutions (WA)
Respondent	:	In person

CACR 90 of 2019

Counsel:

Appellant	:	Ms A L Forrester SC & Ms M M Yeung
Respondent	:	Mr S K Shepherd

Solicitors:

Appellant	:	Director of Public Prosecutions (WA)
Respondent	:	In person

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

AMH v The State of Western Australia [2016] WASCA 180
Atkinson v The State of Western Australia [2017] WASCA 154
Barbaro v The Queen [2014] HCA 2; (2014) 253 CLR 58
Brewerton v The State of Western Australia [2017] WASCA 191; (2017) 82 MVR 176
CMB v Attorney-General (NSW) [2015] HCA 9; (2015) 256 CLR 346
Cooper v The State of Western Australia [2009] WASCA 37
Costa v The State of Western Australia [2019] WASCA 3
Eravelly v The State of Western Australia [2018] WASCA 139
FST v The State of Western Australia [2011] WASCA 220
Gaskell v The State of Western Australia [2018] WASCA 8
Giglia v The State of Western Australia [2010] WASCA 9
Henderson v The State of Western Australia [2007] WASCA 198
Hickling v The State of Western Australia [2016] WASCA 124; (2016) 260 A Crim R 33
Hopper v The Queen [2003] WASCA 153
Johnson v The Queen [2004] HCA 15; (2004) 78 ALJR 616
Kabambi v The State of Western Australia [2019] WASCA 44
KNY v The State of Western Australia [2019] WASCA 89
Lakay v The State of Western Australia [2019] WASCA 46
Law v The Queen [2019] WASCA 81
McAllister v The State of Western Australia [2017] WASCA 183
McAlpine v The State of Western Australia [2018] WASCA 195
McGarry v The Queen [2001] HCA 62; (2001) 207 CLR 121
McNally v The State of Western Australia [2019] WASCA 93
Mearns v The State of Western Australia [2009] WASCA 153
Mill v The Queen [1988] HCA 70; (1988) 166 CLR 59
Moore v The State of Western Australia [2019] WASCA 35
Munda v The State of Western Australia [2013] HCA 38; (2013) 249 CLR 600
Munmurrie v The State of Western Australia [2013] WASCA 167
Nguyen v The Queen [2016] HCA 17; (2016) 256 CLR 656
NPA v The State of Western Australia [2018] WASCA 131
Pearce v The Queen [1998] HCA 57; (1998) 194 CLR 610
Roffey v The State of Western Australia [2007] WASCA 246
Royer v The State of Western Australia [2009] WASCA 139; (2009) 197 A Crim R 319
Sathitpittayayudh v The State of Western Australia [2015] WASCA 152
Singh v The State of Western Australia [2017] WASCA 47
SJN v The State of Western Australia [2016] WASCA 215
The State of Western Australia v Akizuki [2008] WASCA 267; (2008) 192 A Crim R 378
The State of Western Australia v Cairns [2006] WASCA 178
The State of Western Australia v Doyle [2017] WASCA 207
The State of Western Australia v Jacoby [2020] WASCA 150
The State of Western Australia v Richards [2008] WASCA 134; (2008) 37 WAR 229
The State of Western Australia v TIK [2009] WASCA 122; (2009) 196 A Crim R 361
The State of Western Australia v TLP [2019] WASCA 66
The State of Western Australia v Vartolo [2015] WASCA 53
Ugle v The State of Western Australia [2007] WASCA 199
Warburton v The State of Western Australia [2009] WASCA 113; (2009) 196 A Crim R 361
Williams v The State of Western Australia [2015] WASCA 110
YDN v The State of Western Australia [2018] WASCA 62

JUDGMENT OF THE COURT:

These are State appeals against sentence.
The respondent in CACR 89 of 2019 (Mr Hussian) and the respondent in CACR 90 of 2019 (Mr Pyu) were charged on indictment with numerous offences.
All of the charged offences were alleged to have occurred on 15 September 2016 at the Asian Whitehouse Massage Parlour in Bassendean.
One complainant, S, was the owner and manager of the massage parlour business. Two other complainants, C and B, were employed at the massage parlour as masseuses.
Count 1 alleged that Mr Hussian and Mr Pyu unlawfully detained S, contrary s 333 of the Criminal Code (WA) (the Code).
Count 2 alleged that Mr Hussian and Mr Pyu unlawfully detained C, contrary to s 333 of the Code.
Count 3 alleged that Mr Hussian and Mr Pyu unlawfully detained B, contrary to s 333 of the Code.
Count 4 alleged that Mr Hussian sexually penetrated C without her consent, by introducing his penis into her mouth, and that Mr Hussian was armed with an offensive weapon, namely a knife, contrary to s 326 of the Code.
Count 5 alleged that Mr Hussian sexually penetrated C without her consent, by penetrating her vagina with his penis, and that Mr Hussian was armed with an offensive weapon, namely a knife, contrary to s 326 of the Code.
Count 6 alleged that Mr Pyu sexually penetrated B without her consent, by penetrating her vagina with his penis, and that Mr Pyu was armed with an offensive weapon, namely a knife, contrary to s 326 of the Code.
Count 7 alleged that Mr Pyu sexually penetrated C without her consent, by introducing his penis into her mouth, contrary to s 325 of the Code.
Count 8 alleged that Mr Pyu sexually penetrated C without her consent, by penetrating her vagina with his penis, contrary to s 325 of the Code.
Count 9 alleged that Mr Hussian sexually penetrated B without her consent, by penetrating her vagina with his penis, and that Mr Hussian was armed with an offensive weapon, namely a knife, contrary to s 326 of the Code.
Count 10 alleged that Mr Hussian and Mr Pyu stole from S, with threats of violence, a sum of money and a necklace, the property of S, and that Mr Hussian and Mr Pyu were armed with an offensive weapon, namely a knife, and that Mr Hussian and Mr Pyu were in company with each other, contrary to s 392 of the Code.
On 29 March 2019, after a joint trial before Derrick J and a jury, each of Mr Hussian and Mr Pyu was convicted on all of the counts with which they were charged, with the exception that:
(a)on count 6, Mr Pyu was found not guilty of the alleged circumstance of aggravation (namely, that he was allegedly armed with an offensive weapon, being a knife); and
(b)on count 10, Mr Hussian and Mr Pyu were found not guilty of the alleged circumstance of aggravation that they were armed with an offensive weapon, being a knife.
The maximum penalties for the offences, having regard to the jury's verdicts, were as follows:
(a)each of counts 1, 2 and 3: 10 years' imprisonment;
(b)each of counts 4, 5 and 9: 20 years' imprisonment;
(c)each of counts 6, 7 and 8: 14 years' imprisonment; and
(d)count 10: 20 years' imprisonment.
On 30 May 2019, Mr Hussian was sentenced to individual sentences of immediate imprisonment as follows:
(a)count 1: 12 months (reduced from 2 years in the application of the totality principle);
(b)count 2: 2 years;
(c)count 3: 2 years;
(d)count 4: 4 years 6 months;
(e)count 5: 5 years 2 months;
(f)count 9: 5 years; and
(g)count 10: 18 months.
The trial judge ordered that the individual sentences for counts 1 and 4 be served cumulatively upon each other and cumulatively upon the individual sentence for count 9. His Honour ordered that the other individual sentences be served concurrently with each other and concurrently with the individual sentence for count 9. The total effective sentence was therefore 10 years 6 months' imprisonment. The total effective sentence was backdated to 23 September 2016. A parole eligibility order was made.
On 30 May 2019, Mr Pyu was sentenced to individual sentences of immediate imprisonment as follows:
(a)count 1: 12 months (reduced from 2 years in the application of the totality principle);
(b)count 2: 2 years;
(c)count 3: 2 years;
(d)count 6: 4 years 8 months;
(e)count 7: 4 years 2 months;
(f)count 8: 4 years 4 months (reduced from 4 years 10 months in the application of the totality principle); and
(g)count 10: 2 years 4 months.
His Honour ordered that the individual sentences for counts 1 and 6 be served cumulatively upon each other and cumulatively upon the individual sentence for count 8. His Honour also ordered that the other individual sentences be served concurrently with each other and concurrently with the individual sentence for count 8. The total effective sentence was therefore 10 years' imprisonment. The total effective sentence was backdated to 23 September 2016. A parole eligibility order was made.
We would allow the appeals. The trial judge's sentencing decisions should be set aside and Mr Hussian and Mr Pyu resentenced by this court.

The facts and circumstances of the offending

The facts and circumstances of the offending, as found by the trial judge, were not in dispute before this court. They were, relevantly and in essence, as follows.
At about 8.00 pm on 15 September 2016, Mr Hussian and Mr Pyu went to a massage parlour owned and managed by the victim S. The victims B and C were employees at the parlour. Prior to going to the parlour, Mr Hussian and Mr Pyu had formed a plan to steal money and other property from the women working at the parlour, and to use threats of violence, if necessary, to facilitate the theft. They also intended to compel the women in the parlour to engage in sexual activity with them. To this end, they took with them a backpack containing a knife, plastic tubing and electricity cables for the purpose of restraining the women.
On arrival, Mr Hussian and Mr Pyu were shown inside by S. They discussed what services they wanted and from whom. Mr Hussian chose B and Mr Pyu chose C.
Mr Pyu asked to use the bathroom and was taken there by C. B led Mr Hussian to a room. When Mr Hussian became reluctant to enter the room, B called to S. As S approached, Mr Hussian placed his arm around B's neck and produced the knife. B and S began screaming. Mr Hussian pushed, shoved and dragged B and S into the room that B had taken him to. Mr Hussian said to B and S 'Don't scream, if you do I'll stab you' or words to that effect.
On hearing the screaming, C went towards the room followed by Mr Pyu, who then pushed C into the room. Mr Hussian and Mr Pyu tied the three victims' hands with the tubing and cables. Mr Pyu then left the room to search the parlour for items to steal while Mr Hussian stayed in the room guarding the three victims and holding the knife. While Mr Pyu was out of the room, Mr Hussian sexually offended against C. Mr Hussian pushed C onto a bed in the room and demanded that she perform fellatio on him. C said she would not do so without a condom. Mr Hussian allowed her to obtain one. C put the condom on Mr Hussian's erect penis and proceeded to perform fellatio (count 4). She was crying. Her hands were tied. Mr Hussian held the knife. After some time Mr Hussian pushed C onto the bed, pulled her legs apart and penetrated her vagina with his penis until he ejaculated (count 5). C continued to cry. While Mr Hussian had sexual intercourse with C he continued to hold the knife and C's hands remained tied. S and B were in the room when Mr Hussian committed the sexual offences against C. They were tied up and, like C, were terrified.
Mr Pyu returned to the room and took C to another room. C's hands were still tied. Mr Pyu pushed C onto a bed, pulled his pants down and pushed her head towards his erect penis, intending for her to perform fellatio. C said she wanted to find a condom. Mr Pyu allowed her to obtain one. C put the condom on Mr Pyu's penis before he forced her to perform fellatio (count 7). After a short time, Mr Pyu withdrew his penis from C's mouth, forced her to lie down, pushed her legs apart and penetrated her vagina with his penis until ejaculation (count 8). C's hands remained tied while Mr Pyu committed the sex offences against her.
When Mr Pyu was out of the room with C, Mr Hussian sexually offended against B. S was in the room, still tied up, while Mr Hussian committed the sexual offence against B. Mr Hussian untied B's hands. While Mr Hussian held the knife, B complied with Mr Hussian's sexual demands. She put a condom on his penis. Mr Hussian then penetrated B's vagina with his penis until he ejaculated (count 9). Mr Hussian held the knife while he was having sexual intercourse with B.
Mr Pyu returned with C to the room occupied by Mr Hussian, B and S. Mr Pyu untied B from S and took B from the room. Mr Hussian tied C to S. Mr Pyu took B to the other room where he pushed her down onto the bed. He told her he wanted to have sex with her. Afraid, B said she wanted to get a condom and Mr Pyu allowed her to obtain one. B put the condom on Mr Pyu's erect penis and he penetrated B's vagina with his penis until he ejaculated (count 6). He then returned her to the room occupied by Mr Hussian, S and C. B's hands were retied.
Mr Pyu left the room to search the parlour again for money and property to steal, while Mr Hussian, who was still holding the knife, remained in the room guarding the three victims. Mr Pyu returned to ask the victims where the money was. Mr Pyu left the room again to continue searching. He returned to the room and then left with S. S's hands were still tied. In the reception area, Mr Pyu asked S where the money was. S told him the owner had already collected it. Mr Pyu took S to another room where he asked her for sex. S said she would not do it without a condom. He told S to come close to him. When she did, he touched her breasts with his hands. He took S back to the reception area and asked her where the money was. He told her that if she did not tell him, someone would get hurt. S pointed to a drawer and told him the money was there. He opened the drawer and took an envelope containing $700. He also told S to remove a gold necklace she was wearing. She complied and gave it to him (count 10).
Mr Pyu returned S to the room where Mr Hussian was guarding B and C. B and S asked the offenders to loosen the ties as they were too tight. Mr Hussian did so. The offenders then tied S and B to each other. C was still tied separately. The two offenders left the parlour, taking with them the $700 cash, jewellery, handbags and mobile telephones as well as the hard drive for the CCTV system at the parlour so as to prevent their identities being discovered.
In total, Mr Hussian and Mr Pyu were at the parlour for about two hours.

The defence cases at trial

Mr Hussian and Mr Pyu gave evidence at the trial. Both denied being at the massage parlour on the night in question. They also denied ever having been at the parlour. Mr Hussian and Mr Pyu asserted that they had been 'set up' by a Vietnamese man for whom they were working at the time. There was no evidence that the Vietnamese man had any connection with the massage parlour or any of S, C or B.

The trial judge's sentencing remarks and the personal circumstances of Mr Hussian and Mr Pyu

The trial judge recounted in his sentencing remarks the facts and circumstances of the offending.
The information before his Honour included:
(a)a presentence report dated 16 May 2019 and a psychological report dated 9 May 2019 from Dr Tarmala Caple, a forensic psychologist, in relation to Mr Hussian;
(b)a presentence report dated 9 May 2019 and a psychological report dated 8 May 2019 from Cinzia Zuin, a psychologist, in relation to Mr Pyu; and
(c)a victim impact statement dated 17 April 2019 from S.
The trial judge said that Mr Hussian and Mr Pyu had subjected the victims to a very frightening and traumatising ordeal over an extended period. The complainants were at their workplace. The offending occurred at night and the complainants were extremely vulnerable.
The sexual acts which Mr Hussian and Mr Pyu forced C and B to engage in were significant, degrading and humiliating. Fortunately, the use by Mr Hussian and Mr Pyu of condoms spared C and B the ongoing fear of contracting a sexually transmitted disease.
Mr Hussian's humiliation of C and B by the sexual acts he committed was exacerbated by the presence of S and B when he offended against C and by the presence of S when he offended against B.
Further, the seriousness of the offences which Mr Hussian and Mr Pyu committed against C was aggravated by the fact that her hands were tied.
His Honour found that Mr Hussian and Mr Pyu went to the massage parlour on 13 and 14 September 2016 to obtain information about the premises and the people present. They used the information once they had formed the intention of committing the offences. Although his Honour did not find that Mr Hussian and Mr Pyu formed that intention prior to 15 September 2016, his Honour was satisfied beyond reasonable doubt that, before Mr Hussian and Mr Pyu went to the massage parlour on the night of 15 September 2016, they had formed an intention to steal property and to compel the female employees to engage in sexual activity with them. His Honour noted that Mr Hussian and Mr Pyu took with them to the massage parlour on that night the knife, the tubing and the cables. To that extent, their commission of the offences was premeditated and involved a degree of planning.
Mr Hussian committed his sexual offences against C and B while he held the knife. However, his Honour was of the opinion that the distinction to be drawn between the culpability of each of Mr Hussian and Mr Pyu for committing the sexual offences, due to Mr Hussian having been armed with the knife, was not particularly significant. His Honour was of that opinion because Mr Pyu knew that Mr Hussian was armed with the knife and Mr Pyu benefitted from Mr Hussian's conduct in being armed. In particular, Mr Hussian's commission of his sexual offences while being armed resulted in C and B being in a high state of fear and completely compliant by the time Mr Pyu began committing his sexual offences.
Mr Pyu was the principal offender in the commission of the aggravated robbery. He did the acts comprising the commission of the offence. That made Mr Pyu 'a little more culpable' than Mr Hussian for the robbery.
The unlawful detention offences were relatively serious examples of their type. His Honour arrived at that conclusion having regard to the period for which Mr Hussian and Mr Pyu detained the three women, the use of the knife to assist in detaining them, and Mr Hussian and Mr Pyu's conduct in tying the hands of the women with tubing and cables to further restrict their ability to escape.
The offending by Mr Hussian and Mr Pyu caused C and B to suffer significant emotional trauma. Their offending had a significant adverse effect on S's emotional wellbeing, and also on her financial wellbeing.

His Honour was satisfied that, by committing the offences, each of Mr Hussian and Mr Pyu had engaged in a very serious course of criminal conduct.
His Honour examined in detail the personal circumstances and antecedents of Mr Hussian and Mr Pyu.
At the time of sentencing, Mr Hussian was aged about 35. He was born in a rural village in Myanmar. He was the second of 10 children born to his father's two wives. His family were rice farmers. In his 20s, Mr Hussian experienced persecution by the Myanmar military. In about 2006, Mr Hussian married a woman from a nearby village. They have one son who was aged 10 or 11 at the time of sentencing.
In 2009 or 2010, Mr Hussian left Myanmar. He went to Malaysia for some time, and then travelled to Indonesia.
In 2013, Mr Hussian arrived in Australia. He spent 12 months in immigration detention. In 2014, he was released into the Australian community. Mr Hussian has not seen his wife or son for about 10 years.
Mr Hussian's education was very basic. He cannot read or write. After leaving school at a young age, he worked on his parents' rice farm. When he arrived in Perth, Mr Hussian found it difficult to obtain any consistent employment as a result of his lack of education and his very limited ability to speak English. His main source of income was Centrelink benefits.
Mr Hussian has a medical condition which affects his intestinal region. The condition causes bleeding and makes him feel unwell. He has been prescribed medication for the condition. Dr Caple stated in her report that it was difficult, as a result of her having to communicate with Mr Hussian through an interpreter, to assess whether Mr Hussian's reported feelings of loneliness, depression and anxiety met the threshold for a clinical diagnosis.
His Honour accepted that, given Mr Hussian's ethnic background and culture, language difficulties, lack of social support in Western Australia and isolation from his wife and child, and given his inability to provide any financial or other assistance to his wife and child, Mr Hussian will suffer a degree of emotional hardship in custody that exceeds the degree of emotional hardship that would ordinarily be expected to accompany the service of a term of imprisonment.
However, his Honour said that the additional emotional hardship that Mr Hussian will suffer is not a factor that could be accorded substantial mitigatory value because Mr Hussian decided to engage in serious criminal conduct in Western Australia in the knowledge of the risks which that behaviour posed for him and his family.
On 16 July 2016, Mr Hussian was convicted of the offence of possessing cannabis. That is his only previous conviction. His Honour proceeded on the basis that Mr Hussian did not have a criminal record outside Western Australia. His Honour said that although, as a consequence of the prior conviction for possessing cannabis, Mr Hussian could not properly be characterised as a first offender, his criminal record was minimal and that was a mitigatory factor.
Mr Hussian continued to deny having committed any of the offences. He maintained the version of events he put forward at trial. Dr Caple expressed the view that Mr Hussian's refusal to accept responsibility for his offending and his consequent absence of remorse were most likely a protective mechanism due to his fear of being deported. A risk assessment carried out by Dr Caple did not indicate that Mr Hussian was at a markedly elevated risk of committing further sexual offences.
Dr Caple stated that, given Mr Hussian's denials, it was difficult to determine whether the primary motivation for his offending was to commit the robbery or to engage in the sexual offending. Dr Caple was of the view that Mr Hussian has a moderate number of criminogenic needs that require intervention. However, his limited English language skills are a significant barrier to Mr Hussian engaging in specific treatment programs.
His Honour said that if Mr Hussian was sentenced to a term of imprisonment of 12 months or more, his bridging visa would automatically be cancelled and he would, upon release from prison, be transferred to an immigration detention centre. His Honour presumed that deportation was likely to follow. However, the prospect of deportation was not a mitigating factor.
His Honour said that he had imposed a marginally higher sentence on Mr Hussian for count 5 (5 years 2 months' imprisonment) compared to the sentence imposed for count 9 (5 years' imprisonment) because the offending the subject of count 5 had an additional aggravating circumstance, namely C having her hands tied during the commission by Mr Hussian of his sexual offences against her.
At the time of sentencing, Mr Pyu was aged 37. He was born in Myanmar. He was one of a large number of children born to his parents. He was brought up on a rice farm owned by his parents. He had a good upbringing and a good relationship with his parents. His family was financially comfortable. His family experienced discrimination from the Myanmar government and military, but as a child he was not exposed to any violence or trauma.
In 2006 or 2007, Mr Pyu married his wife. They have two children. Their son was an early teenager and their daughter was aged 7 or 8 at the time of sentencing.
In about 2007, Mr Pyu and his wife left Myanmar and travelled to Thailand. He lived in a refugee camp for about six years. In early 2013, Mr Pyu left his wife and children in the Thai refugee camp and made his way to Australia. His plan was to come to Australia and, later, arrange for his wife and children to join him.
On 24 March 2013, Mr Pyu arrived in Australia on a vessel operated by people smugglers. He spent five or six months in immigration detention before being permitted to enter the Australian community on a bridging visa. In about late 2013, Mr Pyu arrived in Perth. After arriving in Perth, Mr Pyu had an itinerant lifestyle. However, when he committed the offences, Mr Pyu had secure accommodation.
Mr Pyu told Ms Zuin that in 2012 two of his brothers were killed in Myanmar. He does not know whether his parents and remaining siblings are alive. Mr Pyu has not seen his wife or children since he left the Thai refugee camp. He speaks to his wife two or three times a week. She is aware that he is in custody. Mr Pyu told Ms Zuin that he is worried about his wife and children.
Mr Pyu attended school to the equivalent of year 4. On leaving school, he worked with his father on his farm. Mr Pyu did not work while he was in the Thai refugee camp. Initially, when he arrived in Australia, Mr Pyu found it difficult to obtain work. Eventually, he found employment. His English language speaking skills are limited.
Mr Pyu has type 2 diabetes. He receives daily medication and insulin injections. According to the presentence report, Mr Pyu suffers from depression and has been prescribed antidepressant medication.
His Honour accepted that, given Mr Pyu's ethnic background and culture, language difficulties, lack of social support in Western Australia and isolation from his wife and family, and given his inability to provide any financial or other assistance to his wife and family, Mr Pyu will suffer a degree of emotional hardship in custody that exceeds the degree of emotional hardship that would ordinarily be expected to accompany the service of a term of imprisonment.
However, his Honour said that the additional emotional hardship that Mr Pyu will suffer is not a factor that could be accorded substantial mitigatory value because Mr Pyu decided to engage in serious criminal conduct in Western Australia in the knowledge of the risks which that behaviour posed for him and his family.
On 22 May 2016, Mr Pyu was convicted of the offence of possessing cannabis, the offence of possessing methylamphetamine and the offence of possessing drug paraphernalia. On 16 June 2016, he was convicted of the offence of possessing drug paraphernalia. His Honour proceeded on the basis that Mr Pyu did not have a criminal record outside Western Australia. His Honour said that the nature and extent of Mr Pyu's criminal record in Western Australia was such that he could not properly be described as a first offender. However, given the relatively minor nature of his previous offences, there was some mitigatory benefit to be found in his record.
Mr Pyu continued to deny having committed any of the offences. He maintained the version of events he put forward at trial. Ms Zuin said there were a number of possible explanations for Mr Pyu's continuing stance of denial, including an inability to acknowledge his behaviour given his religious beliefs; a desire to retain the support of his wife; his concerns about being deported; and his possibly having formed an ongoing pact with Mr Hussian to deny the offences.
Ms Zuin stated that a risk assessment she had carried out did not indicate that Mr Pyu was at a markedly elevated risk of committing further sexual or violent offences. However, Mr Pyu's continuing stance of denial of his offending made it very difficult for Ms Zuin to determine the psychological underpinnings of his behaviour. It was clear that Mr Pyu treated C and B as sexual objects. However, it was unclear whether that aspect of the offending was due to a sense of entitlement because the women provided sexual services at the massage parlour.
Ms Zuin was of the view that Mr Pyu's continuing stance of denial and his limited English language skills would be a barrier to treatment and, accordingly, treatment options for Mr Pyu would be very limited.
His Honour said that Mr Pyu was an unlawful non-citizen of Australia. His visa had been cancelled. It was likely, if not inevitable, that Mr Pyu would be deported upon having served his sentence. However, the prospect of deportation was not a mitigating factor.
His Honour said that he had imposed a marginally higher sentence on Mr Pyu for count 8 (4 years 10 months' imprisonment) compared to the sentence imposed for count 6 (4 years 8 months' imprisonment) because the offending the subject of count 8 had an additional aggravating circumstance, namely C having her hands tied during the commission by Mr Pyu of his sexual offences against her.

The grounds of appeal in each appeal

The State relies upon two grounds in each of the appeals.
The grounds in each appeal are relevantly identical.
Ground 1 in each appeal alleges that each individual sentence imposed by the trial judge was manifestly inadequate.
Ground 2 alleges that the total effective sentence imposed by his Honour infringed the first limb of the totality principle.
On 17 August 2019, Mazza JA granted leave to appeal in each appeal.

The grounds of appeal: counsel for the State's submissions

Counsel for the State submitted that the individual sentences imposed on each of Mr Hussian and Mr Pyu were not merely lenient, but were manifestly inadequate, having regard to the maximum penalties; the serious nature of the offences and the circumstances in which they were committed; the need for the sentences adequately to reflect general and personal deterrence as well as appropriate punishment; the personal circumstances of each of Mr Hussian and Mr Pyu; the limited mitigating factors; and the requirement that the sentences be consistent with the standards of sentencing customarily observed.
It was also submitted that the total effective sentences imposed on Mr Hussian and Mr Pyu failed adequately to reflect the overall criminality involved in all of the offences that each of them had committed, viewed in their entirety. Having regard to the serious aggravating factors, the need for general and personal deterrence and the lack of significant mitigating factors, each of the total effective sentences was not within the range of a sound discretionary judgment and was so inadequate as to reveal error.
Counsel for the State contended that the primary question in the appeals was whether the total effective sentences infringed the first limb of the totality principle.

The grounds of appeal: counsel for Mr Hussian's submissions

Counsel for Mr Hussian submitted that the individual sentences imposed on Mr Hussian were not lenient and were not manifestly inadequate. It was submitted that the total effective sentence imposed on Mr Hussian did not reveal implied error. The State had not established that any individual sentence or the total effective sentence was unreasonable or plainly unjust.

The grounds of appeal: counsel for Mr Pyu's submissions

Counsel for Mr Pyu submitted that, taking into account the circumstances identified by the trial judge, and his Honour's 'unique position' in being able to consider in detail the culpability of Mr Pyu's offending, the individual sentences were not manifestly inadequate.
It was submitted that, having regard to all relevant considerations, the total effective sentence imposed on Mr Pyu properly reflected the overall criminality of his offending.
Counsel contended that, even if the individual sentences and the total effective sentence (or any of them) were unreasonable or plainly unjust, this court should exercise its residual discretion not to interfere with his Honour's sentencing decision.
It was argued that, having regard to:
(a)the likelihood that Mr Pyu will be deported upon his release from prison, regardless of the length of his sentence;
(b)thereafter, Mr Pyu will be excluded permanently from the Australian community; and
(c)the real possibility of discrimination against Mr Pyu following his return to Myanmar,
it would be appropriate for this court to exercise its residual discretion and dismiss the appeal.
It was also argued that, even if this court were of the opinion that any of the individual sentences imposed on Mr Pyu was manifestly inadequate, the court should not intervene and allow the appeal unless the court was satisfied that the total effective sentence infringed the first limb of the totality principle. Counsel was unable to cite any authority in support of that proposition. Counsel made two submissions. First, it was submitted that the reference in s 31(1)(a) of the Criminal Appeals Act 2004 (WA) to an appeal under s 24 of that Act against 'the sentence imposed … as a result of … a conviction on indictment' is to the total effective sentence imposed on the offender (in the present case, to the total effective sentence of 10 years' imprisonment imposed on Mr Pyu). Secondly, it was submitted, on the basis of the residual discretion under s 31(4)(a) of the Criminal Appeals Act, that 'if there is no finding of error in the totality of the sentence, even if the court was minded to accept that in relation to one or more of the individual sentences there was an error, then in those circumstances … it would be appropriate for the court to exercise its residual discretion' (appeal ts 13 ‑ 14).

Ground 1 of the State's appeals: some general principles

A ground of appeal which asserts that a sentence is manifestly inadequate asserts the existence of an implied error. It is necessary, in determining whether a sentence is manifestly inadequate, to examine it from the perspective of the maximum sentence prescribed by law for the relevant offence, the standards of sentencing customarily observed with respect to that offence, the place which the criminal conduct occupies on the scale of seriousness of offences of the kind in question, and the offender's personal circumstances.
The guidance afforded by comparable cases is flexible rather than rigid. The mere fact a sentence is within the range of other sentences imposed for similar offending does not necessarily establish that there was an appropriate exercise of the sentencing discretion in the particular case. Similarly, the mere fact a sentence is outside the range does not necessarily establish that the exercise of the sentencing discretion in the particular case miscarried. A sentencing range for comparable offending is merely one of the factors to be taken into account in deciding whether a sentence is manifestly inadequate. A range of sentences customarily imposed is of significance for the purpose of ensuring broad consistency in the sentencing of offenders in broadly comparable cases. However, a sentencing range for comparable cases does not fix the range of a sound exercise of the sentencing discretion in a particular case.
When an appellate court dismisses an appeal against sentence, and when it allows an appeal against sentence and resentences the offender, the court's decision on the sentencing outcome does not, of itself, fix the upper or lower limit of the range.
If, in a particular case where manifest inadequacy is alleged, there are no directly comparable cases, this court is not precluded from deciding that an individual sentence is manifestly inadequate. It merely has the consequence that this court has no directly comparable cases to provide a yardstick against which to assess the sentence. Previous sentencing ranges are only one pointer to the inadequacy of a sentence. See Munda v The State of Western Australia;[1] The State of Western Australia v Doyle;[2] McAlpine v The State of Western Australia.[3]
[1] Munda v The State of Western Australia [2013] HCA 38; (2013) 249 CLR 600 [38] - [39] (French CJ, Hayne, Crennan, Kiefel, Gageler & Keane JJ).
[2] The State of Western Australia v Doyle [2017] WASCA 207 [36] (Buss P, Mazza JA & Hall J).
[3] McAlpine v The State of Western Australia [2018] WASCA 195 [54] (Buss P & Mazza JA).
Except where a mandatory sentence is prescribed, a sentencing judge exercises a discretionary judgment which is subject to applicable statutory provisions and judge-made law. See Barbaro v The Queen.[4]
[4] Barbaro v The Queen [2014] HCA 2; (2014) 253 CLR 58 [25] (French CJ, Hayne, Kiefel & Bell JJ).
The discretion conferred on sentencing judges is, of course, of fundamental importance and this court may not substitute its opinion as to sentencing for that of the sentencing judge merely because it would have exercised the discretion in a different manner.
A sentencing judge is obliged to sentence an offender in accordance with the sentencing principles set out in pt 2 div 1 of the Sentencing Act. Part 2 div 1 comprises s 6 to s 9AA.
By s 6(1), a sentence imposed on an offender must be commensurate with the seriousness of the offence. This is a fundamental sentencing principle. Section 6(2) provides that the seriousness of an offence must be determined by taking into account the statutory penalty for the offence (par (a)); the circumstances of the commission of the offence, including the vulnerability of any victim of the offence (par (b)); any aggravating factors (par (c)); and any mitigating factors (par (d)). By s 7(1), aggravating factors are those factors which, in the court's opinion, increase the culpability of the offender. Section 7(2) provides that an offence is not aggravated by the fact that the offender pleaded not guilty to it (par (a)); the offender has a criminal record (par (b)); or a previous sentence has not achieved the purpose for which it was imposed (par (c)). By s 8(1), mitigating factors are those factors which, in the court's opinion, decrease the culpability of the offender or decrease the extent to which the offender should be punished. Section 9AA regulates the extent to which the court may reduce, on account of an offender's plea of guilty to a charge for an offence, the sentence that the court would have imposed for the offence if the offender had been found guilty after a plea of not guilty and there were no mitigating factors.
It is well established that:
(a)a judge sentencing an offender for multiple offences must fix an appropriate sentence for each offence and then consider questions of cumulation or concurrence as well as questions of totality;
(b)if, in fixing the appropriate sentence for each offence, proper principle is not applied, orders made for cumulation or concurrence will be made on an imperfect foundation; and
(c)if an appropriate sentence is not fixed for each offence, the failure to do so may give rise to artificial claims of disparity between co‑offenders or otherwise distort general sentencing practices in relation to particular offences.
See Pearce v The Queen;[5] Nguyen v The Queen.[6]
[5] Pearce v The Queen [1998] HCA 57; (1998) 194 CLR 610 [45] ‑ [48] (McHugh, Hayne & Callinan JJ).
[6] Nguyen v The Queen [2016] HCA 17; (2016) 256 CLR 656 [37] (Bell & Keane JJ).

However, a sentencing judge may, in the application of the totality principle, achieve an appropriate total effective sentence either by ordering one or more of the individual sentences to be served wholly or partly concurrently or by reducing the otherwise appropriate length of one or more of the individual sentences. See Mill v The Queen;[7] Johnson v The Queen;[8] Nguyen [64]. Although the joint judgment in Mill expressed a preference for achieving an appropriate total effective sentence by, where practicable, making one or more of the individual sentences wholly or partly concurrent, it is not erroneous for a sentencing judge to lower one or more of the individual sentences below what would otherwise be appropriate.

Ground 1 of the State's appeals: relevant provisions of the Criminal Appeals Act

[7] Mill v The Queen [1988] HCA 70; (1988) 166 CLR 59, 63 (Wilson, Deane, Dawson, Toohey & Gaudron JJ).

[8] Johnson v The Queen [2004] HCA 15; (2004) 78 ALJR 616 [26] (Gummow, Callinan & Heydon JJ).

Section 24(1)(a) of the Criminal Appeals Act provides, relevantly, that '[t]he prosecutor may appeal to [this court] against … the sentence imposed on a person convicted of [a charge of an indictable offence]'.
Section 31(1)(a) of the Criminal Appeals Act provides, relevantly, that s 31 applies 'in the case of an appeal commenced … by a prosecutor under section 24(1), against … the sentence imposed … as a result of … a conviction on indictment'.
By s 31(3) of the Criminal Appeals Act, unless under s 31(4) this court allows the appeal, it must dismiss the appeal.
Section 31(4)(a) of the Criminal Appeals Act provides, relevantly, that this court 'may allow the appeal if, in its opinion, in the case of an appeal referred to in [s 31(1)(a)], a different sentence should have been imposed'.
By s 31(5) of the Criminal Appeals Act, relevantly, if this court allows an appeal referred to in s 31(1)(a), it must set aside the sentence and may instead impose a new sentence that is either more or less severe.
Section 41(2) of the Criminal Appeals Act provides, relevantly, that if under that Act this court varies or sets aside a sentence (sentence A), it may vary any other sentence:
(a)that was imposed at or after the time when sentence A was imposed; and
(b)that took into account sentence A.

Ground 1 of the State's appeals: the unlawful detention offences

The maximum penalty for the offence of unlawful detention, contrary to s 333 of the Code, is 10 years' imprisonment.
No tariff exists for the offence of unlawful detention because of the great variation attending the commission of this offence. The sentence to be imposed in a particular case depends on the individual facts and circumstances of the offence, having regard to the maximum penalty, any aggravating factors, any mitigating factors and the personal circumstances of the offender.
In Henderson v The State of Western Australia,[9] Owen JA (Wheeler & Miller JJA agreeing) said:
It is not easy to make comparisons for the offence of unlawful detention because, like crimes such as manslaughter, it covers a broad spectrum of factual possibilities. Many of these cases are associated with sexual offences. I will not mention cases of that type because I think they raise quite different considerations. In Cook v The Queen [2001] WASCA 16, during the course of an armed robbery the offender detained the sole occupant of the premises and bound her wrists with tape to prevent her escaping while he collected money. A sentence of 2 years (16 months under the present sentencing regime) for the unlawful detention (part of an overall term of 6 years and 5 months) following a guilty plea was left undisturbed. In Iveson v The State of Western Australia [2005] WASCA 25 the offender, in breach of a Violence Restraining Order, went to the residence of a former partner and assaulted her. She tried to escape but the offender stopped her at the front door and closed the door. He then assaulted her again. He was charged with one count of unlawful detention, two of assault occasioning bodily harm and one breach of a restraining order. The sentence imposed for the unlawful detention was 2 years (as part of an aggregate sentence of 4 years and 10 months). The offender's application for leave to appeal against the sentence was rejected [61].
[9] Henderson v The State of Western Australia [2007] WASCA 198.
Similarly, in The State of Western Australia v TIK,[10] Pullin JA (Wheeler & Miller JJA agreeing) commented:
This type of offence is most commonly committed in conjunction with a robbery offence or a sexual assault offence. The cases of Krencej v The Queen [1999] WASCA 20; Cook v The Queen [2001] WASCA 16; Kometer v The State of Western Australia [2005] WASCA 131; Seroka v The State of Western Australia [2006] WASCA 284; (2006) 168 A Crim R 469; Thorn v The State of Western Australia [2008] WASCA 36 and The State of Western Australia v Goodin [2008] WASC 116 reveal sentences (in post‑transitional terms) ranging from 1 year 4 months to 3 years 4 months' imprisonment for deprivation of liberty charges. Two of the cases (Seroka and Cook) reveal sentences imposed after pleas of not guilty and in the other four cases there were pleas of guilty. However, the deprivation of liberty in each case was for one relatively short period of time and in circumstances markedly different from this case. There can be no tariff for this type of offence because the circumstances and length of detention can vary markedly [45].
[10] The State of Western Australia v TIK [2009] WASCA 122; (2009) 196 A Crim R 361.
In the present case, counsel for the State, counsel for Mr Hussian and counsel for Mr Pyu referred to a number of previous decisions of this court in relation to sentencing for the offence of unlawful detention, contrary to s 333 of the Code. None of those decisions is reasonably comparable.
The facts and circumstances of the unlawful detention offences committed by Mr Hussian and Mr Pyu were very serious. In particular:
(a)The offences were premeditated and planned in that Mr Hussian and Mr Pyu went to the massage parlour with a knife, plastic tubing and electricity cables and they used the tubing and the cables to physically restrain S, C and B.
(b)The offences were committed in company.
(c)The offences were committed at the victims' place of work.
(d)The offences involved the use of physical force and threats of violence while Mr Hussian was armed with the knife.
(e)The offences involved forcing the victims into a room where they could be guarded by Mr Hussian or Mr Pyu.
(f)The victims were detained for about 2 hours.
(g)When Mr Hussian and Mr Pyu left the parlour, after committing the offences, the victims remained physically restrained.
(h)S suffered bruising and pain on her wrists as a result of the restraints.
Each of Mr Hussian and Mr Pyu had the benefit of some mitigating factors. Those factors were referred to by the trial judge in his sentencing remarks and have been mentioned earlier in these reasons.
However, Mr Hussian and Mr Pyu did not have the mitigation that pleas of guilty would have brought. They were not youthful or inexperienced for sentencing purposes. They did not accept responsibility for their offending. They maintained their stance of denial. They did not evince any remorse.
Appropriate punishment, denunciation of the criminal conduct of Mr Hussian and Mr Pyu, and general deterrence were important sentencing considerations.
In our opinion, the sentence of 2 years' immediate imprisonment for each of the unlawful detention offences (reduced in the case of count 1 to 12 months in the application of the totality principle) was not commensurate with the seriousness of the offence. We are satisfied, having regard to all relevant facts and circumstances and all relevant sentencing factors (including the mitigating factors), that the length of each sentence was unreasonable or plainly unjust.
We consider that, when each sentence imposed by his Honour for each offence of unlawful detention is viewed from the perspective of:
(a)the maximum penalty;
(b)the facts and circumstances of the offence;
(c)the vulnerability of the victim;
(d)the general pattern of sentences for offences of this kind;
(e)the importance of denunciation and general deterrence; and
(f)all mitigating factors,
the sentence was not merely 'lenient' or 'at the lower end of the available range'.
Each sentence of 2 years' immediate imprisonment was substantially less than the sentence that was open to the trial judge on a proper exercise of his discretion. Each sentence was manifestly inadequate.
Ground 1 in each appeal has been made out in relation to each of the individual sentences for the unlawful detention offences.

Ground 1 of the State's appeals: the sex offences

The maximum penalty for:
(a)the offence of aggravated sexual penetration without consent, contrary to s 326(1) of the Code, is 20 years' imprisonment; and
(b)for the offence of non‑aggravated sexual penetration without consent, contrary to s 325(1) of the Code, is 14 years' imprisonment.
In The State of Western Australia v Akizuki,[11] Steytler P, after carrying out a detailed review of previous sentencing cases, made these observations:
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).
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 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.
[11] The State of Western Australia v Akizuki [2008] WASCA 267; (2008) 192 A Crim R 378 [68] ‑ [69].
A sentencing disposition which involves a starting point different from the starting point identified by Steytler P in Akizuki will not necessarily be manifestly excessive or manifestly inadequate. The facts and circumstances of a particular case may require a higher or a lower starting point.
Where an offender is convicted after trial of a single count of non‑aggravated penile penetration of the vagina, a sentence of 5 to 6 years' imprisonment is not unusual. See The State of Western Australia v Richards.[12] However, it must be emphasised that a sentence outside that range will not necessarily be manifestly excessive or manifestly inadequate. The circumstances of offending and offenders vary widely. Sentences significantly beyond the range identified in Richards may, having regard to the maximum penalty and the relevant facts and circumstances, be justified in particular cases.
[12] The State of Western Australia v Richards [2008] WASCA 134; (2008) 37 WAR 229 [49] (Steytler P; Martin CJ, McLure, Buss & Miller JJA relevantly agreeing).
We have considered a number of previous appeals against sentence, decided by this court, which involved the offence of aggravated sexual penetration without consent, contrary to s 326(1) of the Code. Those cases include Ugle v The State of Western Australia;[13] Cooper v The State of Western Australia;[14] Warburton v The State of Western Australia;[15] Royer v The State of Western Australia;[16] Williams v The State of Western Australia;[17] AMH v The State of Western Australia;[18] Atkinson v The State of Western Australia;[19] NPA v The State of Western Australia;[20] Eravelly v The State of Western Australia;[21] The State of Western Australia v TLP;[22] KNY v The State of Western Australia.[23] It is unnecessary to repeat the relevant facts and circumstances of the cases we have considered or the sentences that were imposed. There are some comparable features between some of those cases and the present case but there are also distinguishing features.
[13] Ugle v The State of Western Australia [2007] WASCA 199.
[14] Cooper v The State of Western Australia [2009] WASCA 37.
[15] Warburton v The State of Western Australia [2009] WASCA 113; (2009) 196 A Crim R 361.
[16] Royer v The State of Western Australia [2009] WASCA 139; (2009) 197 A Crim R 319.
[17] Williams v The State of Western Australia [2015] WASCA 110.
[18] AMH v The State of Western Australia [2016] WASCA 180.
[19] Atkinson v The State of Western Australia [2017] WASCA 154.
[20] NPA v The State of Western Australia [2018] WASCA 131.
[21] Eravelly v The State of Western Australia [2018] WASCA 139.
[22] The State of Western Australia v TLP [2019] WASCA 66.
[23] KNY v The State of Western Australia [2019] WASCA 89.
We have also considered a number of previous appeals against sentence, decided by this court or its predecessor, which involved the offence of non-aggravated sexual penetration without consent, contrary to s 325(1) of the Code. Those cases include Hopper v The Queen;[24] Mearns v The State of Western Australia;[25] FST v The State of Western Australia;[26] Munmurrie v The State of Western Australia;[27] The State of Western Australia v Vartolo;[28] SJN v The State of Western Australia;[29] Singh v The State of Western Australia;[30] Costa v The State of Western Australia;[31] Kabambi v The State of Western Australia;[32] Lakay v The State of Western Australia;[33] McNally v The State of Western Australia;[34] The State of Western Australia v Jacoby.[35] It is unnecessary to repeat the relevant facts and circumstances of the cases we have considered or the sentences that were imposed. There are some comparable features between some of those cases and the present case but there are also distinguishing features.
[24] Hopper v The Queen [2003] WASCA 153.
[25] Mearns v The State of Western Australia [2009] WASCA 153.
[26] FST v The State of Western Australia [2011] WASCA 220.
[27] Munmurrie v The State of Western Australia [2013] WASCA 167.
[28] The State of Western Australia v Vartolo [2015] WASCA 53.
[29] SJN v The State of Western Australia [2016] WASCA 215.
[30] Singh v The State of Western Australia [2017] WASCA 47.
[31] Costa v The State of Western Australia [2019] WASCA 3.
[32] Kabambi v The State of Western Australia [2019] WASCA 44.
[33] Lakay v The State of Western Australia [2019] WASCA 46.
[34] McNally v The State of Western Australia [2019] WASCA 93.
[35] The State of Western Australia v Jacoby [2020] WASCA 150.
The facts and circumstances of the sex offences committed by Mr Hussian and Mr Pyu were very serious. In particular:
(a)The offences were premeditated and planned. Mr Hussian and Mr Pyu took with them to the massage parlour the knife, the tubing and the cables.
(b)The offences were committed at the victims' place of work.
(c)C and B were highly vulnerable having regard to the nature of their occupation and to Mr Hussian and Mr Pyu having gained entry to the premises by pretending to be customers.
(d)C and B knew that Mr Hussian was armed with a knife. Mr Hussian had the knife when he committed his sex offences. Although Mr Pyu did not have the knife, when Mr Pyu committed his sex offences he knew that Mr Hussian had the knife.
(e)As to the sex offending against C, C was tied up when Mr Hussian and Mr Pyu sexually offended against her.
(f)As to Mr Hussian's sex offences, Mr Hussian offended against C in the presence of S and B, and he offended against B in the presence of S.
(g)Mr Hussian and Mr Pyu subjected C and B to a very frightening and traumatising ordeal. The sexual acts were degrading and humiliating. C and B have suffered significant emotional trauma.
The mitigating factors referred to at [110] above and the absence of the mitigating factors referred to at [111] above applied to the sex offences.
Appropriate punishment, denunciation of the criminal conduct of Mr Hussian and Mr Pyu, and general deterrence were important sentencing considerations.
In our opinion, the sentence for each of the sex offences was not commensurate with the seriousness of the offence. We are satisfied, having regard to all relevant facts and circumstances and all relevant sentencing factors (including the mitigating factors), that the length of each sentence was unreasonable or plainly unjust.
We consider that, when each sentence imposed by the trial judge for each sex offence is viewed from the perspective of:
(a)the maximum penalty;
(b)the facts and circumstances of the offence;
(c)the vulnerability of the victim;
(d)the general pattern of sentences for offences of this kind;
(e)the importance of denunciation and general deterrence; and
(f)all mitigating factors,
the sentence was not merely 'lenient' or 'at the lower end of the available range'.
Each sentence was substantially less than the sentence that was open to his Honour on a proper exercise of his discretion. Each sentence was manifestly inadequate.
Ground 1 in each appeal has been made out in relation to each of the individual sentences for the sex offences.
It is well established that where a sentencing judge's discretion has miscarried in respect of one component of a sentence including, as in the present case, one of the individual sentences forming part of the total effective sentence, the whole of the sentencing judge's sentencing decision (including all of the sentences) must be set aside, and the offender resentenced. See, for example, McGarry v The Queen;[36] The State of Western Australia v Cairns;[37] Sathitpittayayudh v The State of Western Australia;[38] YDN v The State of Western Australia;[39] Law v The Queen.[40]
[36] McGarry v The Queen [2001] HCA 62; (2001) 207 CLR 121 [9] (Gleeson CJ, Gaudron, McHugh, Gummow & Hayne JJ).
[37] The State of Western Australia v Cairns [2006] WASCA 178 [42] (McLure JA; Buss JA agreeing).
[38] Sathitpittayayudh v The State of Western Australia [2015] WASCA 152 [28] ‑ [29] (Hall J; McLure P & Mazza JA agreeing).
[39] YDN v The State of Western Australia [2018] WASCA 62 [53] (Mazza, Mitchell & Beech JJA).
[40] Law v The Queen [2019] WASCA 81 [134] (Buss P, Beech & Pritchard JJA).

It is therefore unnecessary for this court to consider ground 1 in relation to the individual sentences for the aggravated robbery offence.

Ground 2 of the State's appeals: its merits

The first limb of the totality principle requires that the total effective sentence imposed on an offender who has committed multiple offences must bear a proper relationship to the overall criminality involved in all of the offences (including those, if any, in respect of which the offender is still serving a term of imprisonment), viewed in their entirety, and after having regard to all relevant circumstances, including those referable to the offender personally (and including, for example, the desirability of accommodating any wish to rehabilitate), and the total effective sentences imposed in comparable cases.
The practical effect of the totality principle is, ordinarily, to arrive at an aggregate sentence which is less than that which would have been arrived at merely by adding up all of the terms appropriate for the individual offences. See Roffey v The State of Western Australia.[41] Also, the severity or leniency of an individual sentence (which is not manifestly excessive or manifestly inadequate) is relevant in evaluating whether the total effective sentence infringes the first limb of the totality principle. See Giglia v The State of Western Australia;[42] Gaskell v The State of Western Australia.[43]
[41] Roffey v The State of Western Australia [2007] WASCA 246 [26] (McLure JA; Steytler P & Miller JA agreeing).
[42] Giglia v The State of Western Australia [2010] WASCA 9 [40] (Owen JA; McLure P & Pullin JA agreeing).
[43] Gaskell v The State of Western Australia [2018] WASCA 8 [52] ‑ [60] (Buss P), [150] ‑ [151] (Mazza & Beech JJA).
If, in a particular case where an infringement of the first limb of the totality principle is alleged, there are no directly comparable cases, this court is not precluded from deciding that a total effective sentence does infringe the first limb of the totality principle. It merely has the consequence that this court has no directly comparable cases to provide a yardstick against which to judge the adequacy of the total effective sentence imposed at first instance. See Moore v The State of Western Australia.[44]
[44] Moore v The State of Western Australia [2019] WASCA 35 [51] (Buss P & Mazza JA).
In the present case, the criminal conduct of each of Mr Hussian and Mr Pyu comprised multiple very serious offences involving deprivation of liberty, sex offending and aggravated robbery.
We have already recounted the very serious features of the deprivation of liberty offences and the sex offences. The aggravated robbery offence was also serious. It was premeditated and planned. The massage parlour was a vulnerable small business. It operated at night. No actual violence was used in committing the offence. However, none was necessary, having regard to the facts and circumstances that preceded it. The value of the property stolen was not insignificant.
In our opinion, the total effective sentence imposed on each of Mr Hussian and Mr Pyu did not bear a proper relationship to the overall criminality involved in all of their offences, viewed together, and having regard to all relevant facts and circumstances and all relevant sentencing factors. As we have mentioned, in the course of considering ground 1 of the appeals, significant weight had to be given to the denunciation of the criminal conduct in question and general deterrence. The objective facts and circumstances of the offending of each of Mr Hussian and Mr Pyu, viewed as a whole in relation to each of them, were very serious. The total effective sentence imposed on each of Mr Hussian and Mr Pyu was unreasonable or plainly unjust. It was not merely 'lenient' or 'at the lower end of the available range'. Each total effective sentence was substantially less than the total effective sentence that was open to the trial judge on a proper exercise of his discretion.
Ground 2 of each appeal has been made out.
It is unnecessary, in consequence of our opinion that the total effective sentence imposed on each of Mr Hussian and Mr Pyu was unreasonable or plainly unjust, to consider counsel for Mr Pyu's argument that, even if this court were of the opinion that any of the individual sentences was manifestly inadequate, the court should not intervene and allow the appeal unless the court was satisfied that the total effective sentence infringed the first limb of the totality principle.
We merely state that the reference in s 31(1)(a) of the Criminal Appeals Act to an appeal commenced by a prosecutor under s 24(1) against, relevantly, 'the sentence imposed … as a result of … a conviction on indictment' is to the sentence or sentences in respect of which the prosecutor has exercised the prosecutor's right of appeal. The sentence to which s 31(1)(a) refers is not confined, as a matter of construction, to the total effective sentence imposed on an offender who has committed multiple offences. It refers to the sentence or sentences which have been challenged on appeal.

The residual discretion, the outcome of the appeals and the resentencing of Mr Hussian and Mr Pyu

As we have mentioned, counsel for Mr Pyu submitted that the residual discretion under s 31(4)(a) of the Criminal Appeals Act should be exercised. Counsel for Mr Hussian did not make that submission.
The residual discretion is a discretion not to interfere with a primary judge's exercise of the sentencing discretion, in the context of a State appeal, notwithstanding that appellable error has been established.
A respondent to a State appeal against sentence does not, of course, bear an onus to establish that the residual discretion should be exercised in his or her favour. Rather, it is incumbent on the State to negative any reason why the residual discretion of this court not to interfere should be exercised. See CMB v Attorney-General (NSW).[45]
[45] CMB v Attorney-General (NSW) [2015] HCA 9; (2015) 256 CLR 346 [33] ‑ [34] (French CJ & Gageler J) [66] (Kiefel, Bell & Keane JJ).
It is well established in Western Australia that the prospect of an offender being deported is not a mitigating factor. See Hickling v The State of Western Australia;[46] McAllister v The State of Western Australia;[47] Brewerton v The State of Western Australia.[48]
[46] Hickling v The State of Western Australia [2016] WASCA 124; (2016) 260 A Crim R 33.
[47] McAllister v The State of Western Australia [2017] WASCA 183.
[48] Brewerton v The State of Western Australia [2017] WASCA 191; (2017) 82 MVR 176.
As we have mentioned, counsel for Mr Pyu argued that, notwithstanding any merit in the State's grounds of appeal, this court should exercise its residual discretion not to interfere with the trial judge's sentencing decision in that Mr Pyu is a Rohingya Muslim and a refugee from Myanmar who has previously experienced discrimination in Myanmar and who will be deported to Myanmar upon his release from prison.
Counsel for Mr Pyu referred to the trial judge's sentencing remarks in which his Honour recorded that Mr Pyu had reported that '[Mr Pyu's] family, being Rohingya Muslims, experienced discrimination at the hands of the Myanmar government and military' [119]. It is apparent from the presentence report and Ms Zuin's report that Mr Pyu's account of the discrimination relates to his experience of circumstances in Myanmar some years ago.
We will assume, favourably to Mr Pyu but without deciding the point, that Mr Pyu's status as a Rohingya Muslim and a refugee from Myanmar who has previously experienced discrimination in Myanmar and who will be deported to Myanmar upon his release from prison, is capable of enlivening this court's residual discretion.
In our opinion, the intervention of this court on the State's appeals is necessary to maintain adequate standards of sentencing. In particular, the individual sentences for the sex offences and, consequently, the total effective sentences were substantially less than the sentences open on a proper exercise of the sentencing discretion. Appellable error has been very clearly established. The matters relied upon by counsel for Mr Pyu do not, in the circumstances, justify or permit the exercise of the residual discretion. The public interest in the maintenance of appropriate sentencing standards for egregious offending of the kind that occurred in the present case decisively outweighs those matters.
We would allow the appeals.
The trial judge's sentencing decision in relation to each of Mr Hussian and Mr Pyu, including the sentences imposed by his Honour, should be set aside.
This court has the material necessary to resentence Mr Hussian and Mr Pyu.
We have reduced each sentence we would otherwise have imposed for each offence to reflect the mitigating factors referred to by his Honour in his sentencing remarks.
We would exercise the sentencing discretion afresh in relation to Mr Hussian by imposing sentences of immediate imprisonment in respect of the counts in the indictment applicable to him as follows:
(a)count 1: 2 years 6 months (reduced from 3 years in the application of the totality principle);
(b)count 2: 3 years;
(c)count 3: 3 years;
(d)count 4: 7 years;
(e)count 5: 8 years 6 months;
(f)count 9: 8 years; and
(g)count 10: 2 years (reduced from 2 years 6 months in the application of the totality principle).
We would order that the new sentences for counts 1 and 10 be served cumulatively upon each other and cumulatively upon the new sentence for count 5; and that all of the other new sentences be served concurrently with each other and concurrently with the new sentences for counts 1, 5 and 10. The new total effective sentence in respect of the counts in the indictment applicable to Mr Hussian is therefore 13 years' imprisonment. We consider that this total effective sentence properly reflects the overall criminality of Mr Hussian's offending, viewed in its entirety and having regard to all relevant facts and circumstances and all relevant sentencing factors.
The new total effective sentence of 13 years' imprisonment should be taken to have taken effect on 23 September 2016. We would make a parole eligibility order. Mr Hussian will be eligible to be considered for release on parole when he has served 11 years in custody calculated from 23 September 2016.
We would exercise the sentencing discretion afresh in relation to Mr Pyu by imposing sentences of immediate imprisonment in respect of the counts in the indictment applicable to him as follows:
(a)count 1: 2 years 6 months (reduced from 3 years in the application of the totality principle);
(b)count 2: 3 years;
(c)count 3: 3 years;
(d)count 6: 6 years;
(e)count 7: 5 years 6 months;
(f)count 8: 6 years 6 months; and
(g)count 10: 3 years.
We would order that the new sentences for counts 1 and 10 be served cumulatively upon each other and cumulatively upon the new sentence for count 8; and that all of the other new sentences be served concurrently with each other and concurrently with the new sentences for counts 1, 8 and 10. The new total effective sentence in respect of the counts in the indictment applicable to Mr Pyu is therefore 12 years' imprisonment. We consider that this total effective sentence properly reflects the overall criminality of Mr Pyu's offending, viewed in its entirety and having regard to all relevant facts and circumstances and all relevant sentencing factors.
The new total effective sentence of 12 years' imprisonment should be taken to have taken effect on 23 September 2016. We would make a parole eligibility order. Mr Pyu will be eligible to be considered for release on parole when he has served 10 years in custody calculated from 23 September 2016.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
JM
Research Associate to the Honourable Justice Buss
16 NOVEMBER 2020