The State of Western Australia v LSM
[2023] WASCA 132
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: THE STATE OF WESTERN AUSTRALIA -v- LSM [2023] WASCA 132
CORAM: QUINLAN CJ
BUSS P
MAZZA JA
HEARD: 10 FEBRUARY 2023
DELIVERED : 1 SEPTEMBER 2023
FILE NO/S: CACR 190 of 2021
BETWEEN: THE STATE OF WESTERN AUSTRALIA
Appellant
AND
LSM
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram: GILLAN DCJ
File Number : IND 1378 of 2021
Catchwords:
Criminal law - State appeal against sentence - Respondent convicted on pleas of guilty to one count of deprivation of liberty, four counts of aggravated sexual penetration without consent, one count of threat to kill and one count of attempt to pervert the course of justice - Respondent sentenced to total effective sentence of 5 years 6 months' imprisonment - Whether sentencing judge erred by reducing respondent's sentence by 25% in circumstances where guilty plea not entered at first reasonable opportunity - Whether individual sentences of 18 months, 3 years, 4 years and 4 years on counts of aggravated sexual penetration were manifestly inadequate - Whether first limb of totality principle infringed
Legislation:
Criminal Appeals Act 2004 (WA), s 31(4)
Criminal Code (WA), s 143, s 326, s 333, s 338B
Sentencing Act 1995 (WA), s 9AA
Result:
Appeal allowed
Primary judge's sentencing decision set aside
Respondent resentenced
Category: D
Representation:
Counsel:
| Appellant | : | Mr L M Fox SC |
| Respondent | : | Mr S D Freitag SC |
Solicitors:
| Appellant | : | Director of Public Prosecutions (WA) |
| Respondent | : | Max Crispe Barrister & Solicitor |
Case(s) referred to in decision(s):
Abraham v The State of Western Australia [2014] WASCA 151; (2014) 244 A Crim R 1
AMH v The State of Western Australia [2016] WASCA 180
Atkinson v The State of Western Australia [2017] WASCA 154
Bropho v Hall [2015] WASC 50
C v The State of Western Australia [2006] WASCA 261
Cooper v The State of Western Australia [2009] WASCA 37
Drage v The State of Western Australia [2021] WASCA 6
Eravelly v The State of Western Australia [2018] WASCA 139
Gomboc v The State of Western Australia [2023] WASCA 115
Kabambi v The State of Western Australia [2019] WASCA 44
KNY v The State of Western Australia [2019] WASCA 89
Mehta v The State of Western Australia [2023] WASCA 24
Munda v The State of Western Australia [2013] HCA 38; (2013) 249 CLR 600
Musgrave v The State of Western Australia [2021] WASCA 67
NPA v The State of Western Australia [2018] WASCA 131
Pulleine v The State of Western Australia [2023] WASCA 23
Royer v The State of Western Australia [2009] WASCA 139; (2009) 197 A Crim R 319
SAL v The State of Western Australia [2021] WASCA 192
The State of Western Australia v Akizuki [2008] WASCA 267; (2008) 192 A Crim R 373
The State of Western Australia v HNU [2023] WASCA 6
The State of Western Australia v Hussian [2020] WASCA 186
The State of Western Australia v Murray [2020] WASCA 190; (2020) 94 MVR 426
The State of Western Australia v Rayapen [2023] WASCA 55
The State of Western Australia v TLP [2019] WASCA 66
The State of Western Australia v Tumata [2022] WASCA 161
Thong v The State of Western Australia [2020] WASCA 182
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
QUINLAN CJ:
On 31 October 2020, the respondent subjected his wife to a prolonged episode of physical and sexual violence that demonstrated a complete disregard for her humanity.
Over the course of approximately two hours, he deprived the victim of her liberty, forcing her from a location in the Perth CBD into a car which he drove erratically and at speed down the Kwinana Freeway. During the journey, the respondent threatened to crash the car and kill both himself and the victim. On two occasions, the victim was able to escape from the car, before the respondent forcibly pulled her back in.
The respondent drove the victim to a house that they had shared in a southern suburb of Perth. He stripped her naked and repeatedly sexually assaulted her: penetrating her vagina with his fingers and penis, and penetrating her mouth with his penis. During the latter assault, the respondent squeezed his hands around the victim's throat, restricting her breathing.
It is clear that the respondent's sexual violence against his wife was a grotesque form of 'punishment', for some imagined 'offence' on her part. His sexual offences were calculated to demean his wife and assert his dominance over her. He was callously indifferent to her cries of pain and her pleas for him to stop. When she asked him 'Do not rape me, please', his response was 'I'll rape you if I want to'.
After the respondent was charged and remanded in custody for the offences he committed on 31 October 2020, he made repeated attempts to have the victim 'drop the charges'. He also involved another friend of his to assist in his attempts to have the charges withdrawn.
On 30 November 2021, the respondent pleaded guilty to seven offences: one count of unlawfully detaining the victim, one count of threatening to kill the victim in circumstances of aggravation, four counts of sexually penetrating the victim without her consent in circumstances of aggravation and one count of attempting to pervert the course of justice.
The learned sentencing judge, Gillan DCJ, imposed a total effective sentence of 5 years and 6 months imprisonment and ordered that the respondent be eligible for parole. The individual terms of imprisonment imposed by the learned sentencing judge, and the adjustments made by her Honour to reflect considerations of totality, are set out by Mazza JA in his reasons, as are the circumstances of the offending and the personal circumstances of the respondent.
The State now appeals from the sentences imposed by the learned sentencing judge. It contends, by ground 1, that her Honour erred in reducing the head sentence by 25% for the respondent's pleas of guilty, in circumstances in which the respondent did not plead guilty at the first reasonable opportunity. The State further contends, by ground 2, that the individual sentences for the four offences of aggravated sexual penetration without consent were manifestly inadequate, and, by ground 3, that the total effective sentence of 5 years and 6 months imprisonment failed to adequately reflect the overall criminality involved in the offences.
The appeal must be allowed. All of the grounds of appeal have been made out.
The respondent conceded, in relation to ground 1, that in respect of counts 1 to 5 and count 7, his pleas of guilty were not made at the first reasonable opportunity. For the reasons given by Mazza JA, I agree that that concession was properly made and that ground 1 has been made out in relation to counts 1 to 5 and count 7.
I am also satisfied that the individual sentences for counts 3, 4, 5 and 6 were plainly unjust and unreasonable. In that regard the sentences imposed by the learned sentencing judge were:
(a)18 months imprisonment, for forcibly penetrating the victim's vagina with his fingers (count 3);
(b)3 years imprisonment, for forcing his penis into the victim's mouth, while he squeezed her neck and throat with his hands, restricting her breathing, and saying 'suck it' and 'open your mouth' (count 4);
(c)4 years imprisonment, for penetrating the victim's vagina with his penis, while she was telling him to stop and get off of her (count 5); and
(d)4 years imprisonment, for penetrating the victim's vagina with his penis, while he forced her head into a couch, saying 'head down' and 'bend over' while she exclaimed in pain and cried, before ejaculating inside of her (count 6).
None of these individual sentences reasonably reflected the objective seriousness of the offences. In that regard the following matters are significant.
First, each offence was committed in circumstances of aggravation, being the familial relationship between the respondent and the victim. That circumstance of aggravation meant that the maximum penalty for each offence was 20 years imprisonment. While there is no tariff for offences of sexual penetration without consent, it has often been observed that a single count of penile penetration of the vagina can be expected to result in a term of imprisonment, after trial, of around 5 or 6 years imprisonment. Those observations were made in the context of offences committed without circumstances of aggravation, for which the maximum penalty is 14 years imprisonment.[1]
[1] See Mehta v The State of Western Australia [2023] WASCA 24 [177] (Quinlan CJ, Mazza & Beech JJA).
The circumstance of aggravation in this case reflects the recognition by the Parliament and the courts of the seriousness of offences involving family violence, including by reason of the significant breach of trust and exploitation of vulnerability involved in such offending.[2] These matters make clear the importance of general deterrence in sentencing for offences involving violence by men on vulnerable victims (mostly women) with whom they are in domestic relationships.[3]
[2] Gomboc vThe State of Western Australia [2023] WASCA 115 (Gomboc) [190] (Quinlan CJ, Mazza & Hall JJA).
[3] Drage v The State of Western Australia [2021] WASCA 6[42] (Buss P & Vaughan JA); Gomboc [193] (Quinlan CJ, Mazza & Hall JJA).
Secondly, the offences in this case were not only committed with the respondent's full knowledge that the victim was not consenting to his actions, they were evidently committed with the intention that that would be so. That is, the respondent positively intended to violate, hurt, demean and humiliate the victim by his actions.
Thirdly, the offences were accompanied by actual violence (beyond the violence inherent in the act of sexually penetrating a person without their consent), including the forceful nature of the penetration (expressly referred to in the facts relating to counts 3 and 6) and the respondent squeezing the victim's neck and throat (in count 4). As to the latter, the particular dangers associated with offences involving non‑fatal strangulation and with the role they play in cases of intimate and family violence are well recognised.[4]
[4] Gomboc [192] (Quinlan CJ, Mazza & Hall JJA).
Finally, the offences were committed in the victim's own home. Not only was the victim with a person with whom she should have been safe (her husband), she was in a place in which she was entitled to feel safe. The respondent betrayed her on both fronts.
The objective criminality of the respondent's offending therefore called for significantly greater individual sentences for counts 3, 4, 5 and 6. Against that objective seriousness, the respondent's personal circumstances carried comparatively little weight.
In that regard, in addition to his pleas of guilty, the principal mitigation was the respondent's lack of prior criminal record. The respondent's level of intoxication, of course, afforded him no mitigation.
The learned sentencing judge also accepted that the respondent was genuinely remorseful and that his offending was out of character. There was no challenge to those findings on appeal, which were based in part upon a psychological report provided to her Honour. While I therefore accept those findings for the purposes of the appeal, I am bound to observe that there was good reason not to uncritically accept the psychologist's opinion 'that there was no evidence to indicate [the respondent] harbours feelings of sexual entitlement or that he has poor attitudes towards women'. That opinion is difficult to square with the respondent's sense of entitlement and the reprehensible attitude towards his wife that he displayed on 31 October 2020.
As I have said, however, the nature of the offending was such that the respondent's personal circumstances, while not irrelevant, carried comparatively little weight. They could not reasonably justify the sentences imposed by the learned sentencing judge.
Ground 2 must be upheld.
Similarly, in my view, the total effective sentence of 5 years and 6 months imprisonment, failed to adequately reflect the overall criminality involved in all of the offences. In that regard, a total effective sentence of 5 years and 6 months imprisonment could well have been justified for the sexual offences alone.
In addition, in the present case there were, in essence, three distinct categories of offending, each of which was inherently serious. All of the offences, of course, including count 7, had the underlying feature that they all involved the coercive control by the respondent of his wife. Nevertheless, the following distinct categories of offending can be identified.
First, was the category reflected in counts 1 and 2, of depriving the victim of her liberty and terrorising her with threats to kill her. Those offences were a direct attack on the victim's liberty and on her sense of personal safety.
Secondly, as I have already addressed, were the sexual offences in counts 3, 4, 5 and 6. Those offences were a direct violation of the victim's bodily integrity and her human dignity.
Finally, by count 7, was the attempt by the respondent to avoid the consequences of his actions by endeavouring to have the victim withdraw her complaint or tell the police 'we were drunk', 'it was all incorrect'. That offence was both a direct attack on the administration of justice and a further attempt to control and manipulate the victim.
In my view, the total effective sentence to be imposed on the respondent needed to meaningfully reflect, by some accumulation, each of these distinct categories of offending. The total effective sentence of 5 years and 6 months imposed by the learned sentencing judge fell well short of achieving that purpose.
For these reasons, together with the separate reasons given by Buss P and Mazza JA, ground 3 should also be upheld.
As with Buss P and Mazza JA, I am positively satisfied that there is no basis to exercise the residual discretion in s 31(4) of the Criminal Appeals Act 2004 (WA).
In resentencing the respondent, I also agree with Buss P and Mazza JA that the appropriate discount pursuant to s 9AA of the Sentencing Act 1995 (WA), for the respondent's pleas of guilty to counts 1 to 5 and count 7 is 15% and that the appropriate discount for the early plea to count 6 is 20%.
As with Buss P and Mazza JA, in my view the appropriate individual sentences for the offences are:
Count 12 years imprisonment
Count 22 years imprisonment
Count 35 years imprisonment
Count 46 years imprisonment
Count 56 years imprisonment
Count 65 years and 9 months imprisonment
Count 718 months (reduced from 2 years imprisonment for totality)
I would order that the sentences on counts 1, 4 and 7 be served cumulatively, and that the sentences for the other offences be served concurrently with the sentence on count 4. The total effective sentence I would, therefore, impose is 9 years and 6 months imprisonment.
The sentences should be backdated to commence on 31 October 2020 and the respondent made eligible for parole.
BUSS P:
This is a State appeal against sentence.
The respondent was charged on indictment with seven counts.
The complainant in all of the counts was the respondent's wife, F. The offending the subject of counts 1, 2, 3, 4, 5 and 6 occurred on 31 October 2020 in the Perth metropolitan area. The offences charged in counts 3, 4, 5 and 6 were committed during a single episode. The offending the subject of count 7 occurred between 12 November 2020 and 24 November 2020 at Canning Vale.
Count 1 alleged that the respondent unlawfully detained F, contrary to s 333 of the Criminal Code (WA) (the Code).
Count 2 alleged that the respondent made a threat to unlawfully kill F, and that the respondent was in a family relationship with F, contrary to s 338B(1)(a)(ii) of the Code.
Count 3 alleged that the respondent sexually penetrated F without her consent, by penetrating her vagina with his finger, and that the respondent was in a family relationship with F, contrary to s 326(1) of the Code.
Count 4 alleged that the respondent sexually penetrated F without her consent, by introducing his penis into her mouth, and that the respondent was in a family relationship with F, contrary to s 326(1) of the Code.
Count 5 alleged that the respondent sexually penetrated F without her consent, by penetrating her vagina with his penis, and that the respondent was in a family relationship with F, contrary to s 326(1) of the Code.
Count 6 alleged that the respondent sexually penetrated F without her consent, by penetrating her vagina with his penis, and that the respondent was in a family relationship with F, contrary to s 326(1) of the Code.
Count 7 alleged that the respondent, by seeking to cause F to withdraw a complaint, attempted to pervert the course of justice upon the prosecution of the respondent on the charges of sexual penetration without consent, deprivation of liberty and threat to kill (being the charges embodied in counts 1 to 6 inclusive), contrary to s 143 of the Code.
The respondent was convicted, on his pleas of guilty, of each of the counts.
The maximum penalty for each of counts 1 and 2 is 10 years' imprisonment; the maximum penalty for each of counts 3, 4, 5 and 6 is 20 years' imprisonment; and the maximum penalty for count 7 is 7 years' imprisonment.
On 30 November 2021, Gillan DCJ imposed individual sentences of immediate imprisonment as follows:
(a)Count 1: 9 months (reduced from 2 years in the application of the totality principle);
(b)Count 2: 18 months;
(c)Count 3: 18 months;
(d)Count 4: 3 years;
(e)Count 5: 4 years;
(f)Count 6: 4 years; and
(g)Count 7: 9 months (reduced from 18 months in the application of the totality principle).
Her Honour ordered that the individual sentences for counts 1 and 7 be served cumulatively upon each other and cumulatively upon the individual sentence for count 6. Her Honour ordered that the individual sentences for the other counts be served concurrently with each other and concurrently with the individual sentence for count 4. The total effective sentence was therefore 5 years 6 months' imprisonment. Her Honour backdated the total effective sentence to 31 October 2020 to take account of time the respondent had spent in custody. A parole eligibility order was made.
The State appeals on three grounds. Ground 1 alleges that the sentencing judge erred in law in allowing the respondent a discount of 25%, pursuant to s 9AA of the Sentencing Act 1995 (WA), on the head sentence she would otherwise have imposed for each offence. Ground 2 alleges that the individual sentences for counts 3, 4, 5 and 6 were manifestly inadequate. Ground 3 alleges that the total effective sentence of 5 years 6 months' imprisonment infringed the first limb of the totality principle.
The appeal should be allowed, the sentences imposed by the sentencing judge should be set aside and the respondent should be resentenced by this court. My reasons are as follows.
The facts and circumstances of the offending, the respondent's personal circumstances, the sentencing judge's sentencing remarks and the submissions of the parties in the appeal
The facts and circumstances of the offending, the respondent's personal circumstances, the sentencing judge's sentencing remarks and the submissions of the parties in the appeal are summarised in the reasons of Mazza JA. I will not repeat his Honour's summary except to the extent necessary to explain my reasons.
Ground 1
Section 9AA of the Sentencing Act applies where a person has pleaded guilty to a charge for an offence and the person is to be sentenced for that offence. Any discount under s 9AA for a plea of guilty is to the 'head sentence', as defined in s 9AA(1). If the 'head sentence' for an offence is or includes a 'fixed term' (as defined in s 85(1) of the Sentencing Act), any discount under s 9AA for a plea of guilty must not exceed 25%. Further, a discount of 25% must not be allowed unless the offender pleaded guilty, or indicated that he or she would plead guilty, at 'the first reasonable opportunity'.
In the present case, it was common ground between the parties that the respondent's pleas of guilty on counts 1, 2, 3, 4, 5 and 7 were not entered or indicated at the first reasonable opportunity. The sentencing judge did not expressly find that the pleas on those counts were entered or indicated at the first reasonable opportunity. It was not reasonably open to her Honour to find that the pleas on those counts were entered or indicated at the first reasonable opportunity. Nevertheless, her Honour allowed the respondent a discount of 25% for each of counts 1, 2, 3, 4, 5 and 7. At the hearing of the appeal, counsel for the respondent conceded that her Honour erred in law in reducing the head sentence for each of those counts by 25%. The concession was properly made.
The timing of the respondent's plea of guilty on count 6 was materially different from the timing of his pleas of guilty on the other counts. Count 6 was added to the indictment ex officio. The respondent was charged with that offence at a significantly later stage in the proceedings. It was open to her Honour to conclude that the respondent's plea of guilty on count 6 was entered at the first reasonable opportunity.
Ground 1 has been made out in relation to counts 1, 2, 3, 4, 5 and 7. The sentencing judge's error in relation to those counts was material in that it was capable of affecting the actual sentence imposed in respect of those counts and the actual total effective sentence.
Ground 2
The general sentencing principles applicable to a ground of appeal which alleges that a sentence is manifestly inadequate are well established. See, for example, The State of Western Australia v Murray.[5]
[5] The State of Western Australia v Murray [2020] WASCA 190; (2020) 94 MVR 426 [47] ‑ [54].
The maximum penalty for the offence of aggravated sexual penetration without consent, contrary to s 326(1) of the Code, is 20 years' imprisonment.
I 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;[6] Cooper v The State of Western Australia;[7] Warburton v The State of Western Australia;[8] Royer v The State of Western Australia;[9] Williams v The State of Western Australia;[10] AMH v The State of Western Australia;[11] Atkinson v The State of Western Australia;[12] NPA v The State of Western Australia;[13] Eravelly v The State of Western Australia;[14] The State of Western Australia v TLP;[15] KNY v The State of Western Australia;[16] The State of Western Australia v Hussian;[17] The State of Western Australia v Tumata;[18] Mehta v The State of Western Australia.[19] It is unnecessary to repeat the relevant facts and circumstances of the cases I 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.
[6] Ugle v The State of Western Australia [2007] WASCA 199.
[7] Cooper v The State of Western Australia [2009] WASCA 37.
[8] Warburton v The State of Western Australia [2009] WASCA 113; (2009) 196 A Crim R 361.
[9] Royer v The State of Western Australia [2009] WASCA 139; (2009) 197 A Crim R 319.
[10] Williams v The State of Western Australia [2015] WASCA 110.
[11] AMH v The State of Western Australia [2016] WASCA 180.
[12] Atkinson v The State of Western Australia [2017] WASCA 154.
[13] NPA v The State of Western Australia [2018] WASCA 131.
[14] Eravelly v The State of Western Australia [2018] WASCA 139.
[15] The State of Western Australia v TLP [2019] WASCA 66.
[16] KNY v The State of Western Australia [2019] WASCA 89.
[17] The State of Western Australia v Hussian [2020] WASCA 186.
[18] The State of Western Australia v Tumata [2022] WASCA 161.
[19] Mehta v The State of Western Australia [2023] WASCA 24.
The facts and circumstances of the respondent's offending on each of counts 3, 4, 5 and 6 were very serious. In particular:
(a)The offending on counts 3, 4, 5 and 6 occurred over a period of about 13 minutes.
(b)F was highly vulnerable. The respondent was physically larger and stronger than F.
(c)The offending occurred in the context of an attempt by F to reconcile with the respondent and to re‑establish their domestic relationship.
(d)The offending caused F to experience terror and humiliation.
(e)F begged the respondent not to rape her. His response was that he could rape her if he wanted to.
(f)Count 3 involved the respondent forcefully penetrating F's vagina with his fingers.
(g)Count 4 involved two acts of penile penetration of F's mouth. During the commission of this offence the respondent had his hands around F's neck and throat. He squeezed her neck and throat. F found it difficult to breath.
(h)During the commission of count 6 the respondent ejaculated in F's vagina. He was not wearing a condom.
(i)At least some of the offending on counts 3, 4, 5 and 6 caused F to suffer physical pain. The respondent continued his sexual assault despite F's obvious physical pain and despite F crying and repeatedly asking the respondent to stop.
(j)The respondent's offending on counts 3, 4, 5 and 6 was calculated to punish F.
(k)F had to escape by running from her home.
Another very serious feature of the respondent's offending on counts 3, 4, 5 and 6 was the nature and quality of the violence he inflicted on F. Domestic and sexual violence can involve physical injury, sexual assault, psychological injury and emotional trauma. Domestic and sexual violence is a major concern in Australia. It affects mainly women and children. In the present case, the respondent physically, sexually, psychologically and emotionally abused F. The abuse occurred in the context of a patent imbalance of power. The respondent's offending included behaviour that was calculated to intimidate, coerce and control F. Denunciation of the respondent's criminal conduct and personal and general deterrence were important sentencing considerations.
The principal mitigating factors were the respondent's pleas of guilty and the absence of a prior criminal record.
In my opinion, the sentence for each of counts 3, 4, 5 and 6 was not commensurate with the seriousness of the offence. I am 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.
I consider that, when the sentence imposed by the sentencing judge for each of counts 3, 4, 5 and 6 is viewed from the perspective of:
(a)the maximum penalty;
(b)the facts and circumstances of the offence;
(c)the vulnerability of F;
(d)the general pattern of sentences for offences of the kind in question;
(e)the importance of denunciation and personal 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 her Honour on a proper exercise of her discretion. Each sentence was manifestly inadequate.
Ground 2 has been made out in relation to each of the individual sentences for counts 3, 4, 5 and 6.
Ground 3
The general sentencing principles applicable to a ground of appeal which alleges that a total effective sentence infringes the first limb of the totality principle are well established. See, for example, Murray [68] ‑ [69], [71].
I have already referred to the very serious character of the respondent's offending on counts 3, 4, 5 and 6.
The respondent's offending on counts 1, 2 and 7 was also very serious.
As to count 1:
(a)F was unlawfully detained for about two hours.
(b)F was highly vulnerable. The respondent was physically larger and stronger than F.
(c)The offending occurred in the context of an attempt by F to reconcile with the respondent and to re‑establish their domestic relationship.
(d)The offending terrorised F.
(e)The offending was committed in numerous places, including the City of Perth, a motor vehicle and F's home.
(f)The unlawful detention continued despite F begging the respondent to stop.
(g)The respondent used physical force in propelling F through the City of Perth and, when she escaped from the vehicle, he used physical force in returning her to the vehicle.
As to count 2:
(a)The offending occurred while F was in the motor vehicle and while the respondent drove dangerously.
(b)F was highly vulnerable.
(c)The offending occurred in the context of an attempt by F to reconcile with the respondent and to re‑establish their domestic relationship.
(d)The offending terrorised F.
(e)The respondent told F repeatedly that he was going to kill both of them. When the threats were made F had no reason to believe that the respondent would not in fact kill her.
As to count 7, the respondent sought to manipulate F into withdrawing her complaints in relation to counts 1, 2, 3, 4, 5 and 6. The respondent spoke directly to F and also procured a friend to speak to F about withdrawing her complaints. The respondent's offending conduct involved an attack on the proper administration of criminal justice and also a continuation of his abusive conduct towards F.
A very serious feature of the respondent's offending on counts 1, 2 and 7 (which also permeated his offending on counts 3, 4, 5 and 6) was the pattern of abuse that characterised his interaction with F. Count 1 involved the physical abuse of F and the infliction of emotional trauma on her. Count 2 involved the infliction of emotional trauma. Count 7 involved psychological manipulation. All of those counts manifested behaviour by the respondent that was calculated to intimidate, coerce and control F.
In my opinion, the total effective sentence imposed by the sentencing judge did not bear a proper relationship to the overall criminality involved in all of the respondent's offences, viewed together, and having regard to all relevant facts and circumstances and all relevant sentencing factors. Significant weight had to be given to the denunciation of the respondent's criminal conduct and to personal and general deterrence. The objective facts and circumstances of the offending, viewed as a whole, were very serious. The total effective sentence was unreasonable or plainly unjust. It was not merely 'lenient' or 'at the lower end of the available range'. The total effective sentence was substantially less than the total effective sentence that was open to her Honour on a proper exercise of her discretion.
Ground 3 has been made out.
The residual discretion, the outcome of the appeal and the resentencing of the respondent
In my opinion, the intervention of this court is necessary to maintain adequate standards of sentencing. As I have mentioned, the individual sentences for counts 3, 4, 5 and 6 and the total effective sentence were substantially less than the sentences open on a proper exercise of the sentencing discretion. Appellable error has been very clearly established. There are no circumstances which justify or permit the exercise of the residual discretion.
I would allow the appeal.
The sentencing judge's sentencing decision, including the sentences imposed by her Honour, should be set aside.
This court has the material necessary to resentence the respondent.
I have reduced the head sentence that I would otherwise have imposed for each of counts 1, 2, 3, 4, 5 and 7 by 15%, and the head sentence that I would otherwise have imposed for count 6 by 20%, pursuant to s 9AA of the Sentencing Act. I have also reduced each sentence that I would otherwise have imposed to reflect the other mitigating factors referred to by her Honour. I have taken the mitigating factors into account in deciding upon the total effective sentence.
The only appropriate sentencing option is the imposition of sentences of imprisonment to be served immediately.
Like Quinlan CJ and Mazza JA, I would exercise the sentencing discretion afresh by imposing sentences of immediate imprisonment as follows:
(a)count 1: 2 years;
(b)count 2: 2 years;
(c)count 3: 5 years;
(d)count 4: 6 years;
(e)count 5: 6 years;
(f)count 6: 5 years 9 months; and
(g)count 7: 18 months (reduced from 2 years in the application of the totality principle).
The new sentences for counts 1 and 7 should be served cumulatively upon each other and cumulatively upon the new sentence for count 4. The new sentences for the other counts should be served concurrently with each other and concurrently with the new sentence for count 4. The new total effective sentence is therefore 9 years 6 months' imprisonment.
The new total effective sentence of 9 years 6 months' imprisonment should be taken to have taken effect on 31 October 2020. The respondent should be eligible for parole. The respondent will be eligible to be considered for release on parole when he has served 7 years 6 months in custody calculated from 31 October 2020.
MAZZA JA:
This is a State appeal against sentence.
The respondent was charged in the District Court on indictment with seven offences, six of which were committed in the course of one prolonged incident. The sole victim was his wife, F. On 31 October 2020, the respondent deprived F of her liberty, threatened to kill her and sexually penetrated her without her consent four times. Later, while the respondent was in custody on remand, he attempted to pervert the course of justice by seeking to cause F to withdraw her complaint against him.
At the sentencing hearing on 30 November 2021, the respondent pleaded guilty to all seven offences. Her Honour, Gillan DCJ, imposed a total effective sentence of 5 years 6 months' imprisonment with parole eligibility, backdated to 31 October 2020. The details of the charges, the relevant provisions of the Criminal Code (WA) (Code), the maximum sentences for the offences and the sentences that were imposed, including orders for accumulation and reductions for totality, are set out in the following table.
| Count | Code provision | Charge | Maximum sentence | Sentence imposed |
| 1 | s 333 | On 31 October 2020, at Perth and elsewhere the respondent unlawfully detained F | 10 years' imprisonment | 9 months' imprisonment (cumulative) (reduced from 2 years for totality) |
| 2 | s 338B(1)(a)(ii) | On 31 October 2020, in the Perth metropolitan area the respondent made a threat to unlawfully kill F; and that the respondent was in a family relationship with F | 10 years' imprisonment | 18 months' imprisonment |
| 3 | s 326 | On 31 October 2020 at a Perth suburb the respondent sexually penetrated F without her consent, by penetrating her vagina with his finger; and that the respondent was in a family relationship with F | 20 years' imprisonment | 18 months' imprisonment |
| 4 | s 326 | On the same date and at the same place as count 3, the respondent sexually penetrated F without her consent, by introducing his penis into her mouth; and that the respondent was in a family relationship with F | 20 years' imprisonment | 3 years' imprisonment |
| 5 | s 326 | On the same date and at the same place as count 3, the respondent sexually penetrated F without her consent, by penetrating her vagina with his penis; and that the respondent was in a family relationship with F | 20 years' imprisonment | 4 years' imprisonment |
| 6 | s 326 | On the same date and at the same place as count 3, the respondent sexually penetrated F without her consent, by penetrating her vagina with his penis; and that the respondent was in a family relationship with F | 20 years' imprisonment | 4 years' imprisonment (head sentence) |
| 7 | s 143 | Between 12 and 24 November 2020 at Canning Vale the respondent, by seeking to cause F to withdraw a complaint, attempted to pervert the course of justice upon the prosecution of the respondent on the charges of sexual penetration without consent, deprivation of liberty, and threat to kill | 7 years' imprisonment | 9 months' imprisonment (cumulative) (reduced from 18 months for totality) |
The State relies on three grounds of appeal for which leave to appeal has been granted. Ground 1 alleges that the learned sentencing judge erred in law by reducing the respondent's sentence on each charge by 25%, pursuant to s 9AA of the Sentencing Act 1995 (WA), in circumstances where the pleas of guilty were not entered at the first reasonable opportunity. Ground 2 alleges that the individual sentences on counts 3, 4, 5 and 6, being the offences of aggravated sexual penetration without consent, are manifestly inadequate. Ground 3 alleges that the total effective sentence of 5 years 6 months' imprisonment infringed the first limb of the totality principle.
Save for count 6, the respondent concedes that her Honour made the error alleged in ground 1 and that the error was material. As to count 6, which was added to the indictment ex officio, the respondent contends that the guilty plea on that count was entered at the first reasonable opportunity and that her Honour did not err by reducing the sentence on that count by 25%. The respondent does not concede grounds 2 and 3.
For the reasons which follow, I would allow ground 1, other than in respect of count 6. I would also allow grounds 2 and 3. Thus, this court's power to resentence the respondent on all of the offences is enlivened. I would resentence the respondent to a total effective sentence of 9 years 6 months' imprisonment, with parole eligibility, backdated to commence on 31 October 2020.
The facts
At the sentencing hearing, the facts were read aloud by the prosecutor,[20] accepted by the respondent,[21] and wholly adopted by the sentencing judge for the purpose of sentencing.[22]
[20] ts 6.
[21] ts 12.
[22] ts 22.
Prior to the offending, the respondent and F had been in a relationship for approximately six years and had been married for about two years. They have a son, who was born in May 2019. They had lived together in a house in a Perth suburb (the house). The respondent had previously been violent towards F, who was of significantly smaller stature than the respondent.
In August 2020, the respondent and F separated for a month. Subsequently, they agreed to work on their relationship for the sake of their child. The respondent and F resumed cohabitation, moving in with F's parents while the house was being renovated.
On 24 October 2020, the respondent ended his relationship with F, via text message. He moved back into the house, while F stayed with her parents. On 29 October 2020, F agreed to take the respondent back and, again, work on their relationship.
On 30 October 2020, the respondent and F drove into the Perth CBD to celebrate F's birthday at a bar. The respondent parked in a car park near the bar. During the night, the respondent became jealous and began accusing F of being unfaithful. The respondent and F left the bar and began arguing. As a result, F said that she would order an Uber home. It was at this point that count 1, the offence of deprivation of liberty, began. The respondent deprived F of her liberty over a period of about two hours, during which time he also committed counts 2 - 6.
As to count 1, the respondent grabbed the back of F's neck and forced her up from a bench she had been sitting on. He kept his hands around the back of her neck and forced her to walk to the car park, and eventually to their car. F did not want to get into the car but did so because she was afraid of the respondent. CCTV footage taken from various vantage points shows the respondent holding F's neck and forcing her to walk along streets in the Perth CBD. CCTV footage also captured the respondent blocking F's path and pushing her into a wall before grabbing her neck again and forcing her to walk towards the car park.
Once the respondent and F were in the car, the respondent drove dangerously, at speed. As to count 2, the respondent repeatedly told F that he was going to crash the car with her in it. F attempted to get out of the car on several occasions, but the respondent prevented her from doing so by grabbing her arm or her hair and pulling her back into the car. F repeatedly asked the respondent to pull over or slow down, but the respondent continued to drive dangerously. At one point, the respondent stopped the car on the Kwinana Freeway. F managed to get some way out of the car and call triple zero before the respondent pulled her back into the car. At some point, the respondent again stopped the car and F got out and ran about 20 m. Again, she called triple zero. The respondent drove to where F was. He got out of the car and forced her into the passenger seat. Without the respondent's knowledge, F, who was still on the line with the triple zero operator, put her mobile telephone under the passenger seat.
The triple zero operator remained on the line for the rest of the journey and after F and the respondent arrived at the house, where the respondent committed counts 3 ‑ 6. The triple zero call recording captured parts of the offending in counts 3 - 6. In respect of count 2, the respondent is heard threatening to kill himself and F by running the vehicle off the road.
Eventually, the respondent and F arrived at the house. The respondent drove into the garage and shut the roller door behind them. The house had its own CCTV system, with audio, which also captured parts of the offending in counts 3 - 6. It recorded F saying, 'Let go of me' as soon as the car pulled into the garage. F again asked the respondent to stop. The respondent prevented F from leaving the garage and pushed her into the lounge room of the house.
At the time, the only furniture in the house was a couch in the lounge room. As to count 3, the respondent stripped F naked. F pleaded with the respondent and said, 'Do not rape me, please'. The respondent then forcefully penetrated F's vagina with his fingers for about 10 ‑ 20 seconds. The triple zero recording captured F repeatedly telling the respondent to stop. The respondent was heard saying, 'I'll rape you if I want'.[23]
[23] ts 8 - 9.
As to count 4, the respondent then grabbed F's head and neck and forced her to sit up. He forced her head onto his penis, causing F to choke. F pushed the respondent away and coughed. Both the triple zero recording and the CCTV system captured F's cough. The respondent again forced his penis into F's mouth. While he did so, he squeezed F's neck and throat with his hands. The respondent, in effect, choked F, who experienced difficulty breathing. The respondent pulled F back and forth on his penis for 5 ‑ 10 seconds. In the triple zero recording, the respondent is heard saying, 'Suck it' and 'Open your mouth'.
As to count 5, the respondent took his penis out of F's mouth and pushed her onto her back. He then penetrated her vagina with his penis for 20 ‑ 30 seconds, during which time F told the respondent to get off her and to stop.
As to count 6, the respondent then grabbed F and forced her to stand. He then forced her onto the couch in the lounge room, so that she was on all fours. He then penetrated F's vagina with his penis for 20 ‑ 30 seconds, before ejaculating inside her. In the triple zero recording, the respondent is heard saying, 'Head down' and 'Bend over'. The recording also captures F crying, exclaiming in pain, and repeatedly begging the respondent to stop.
After the commission of count 6, F managed to grab and put on her underwear and bra. She then grabbed her dress and her mobile telephone, which was still connected to the triple zero operator, and ran out of the house through the garage. The CCTV system recorded F running out of the garage, half-dressed and saying, 'No, leave me alone'. F then spoke to the triple zero operator and directed police to her location.
The police attended and arrested the respondent.
The respondent participated in a video record of interview in which he made a number of admissions, including to the effect that:
(a)he drove dangerously and although F wanted to get out of the car he would not let her;
(b)he was 'pretty sure [F] tried to call the cops', but he told her not to;
(c)F was scared;
(d)he threatened to crash the car and kill them both;
(e)when he and F got home, he shut the garage roller door so that she could not leave;
(f)he decided to have sex with her as they walked into the house;
(g)he pushed F onto the couch, ripped her clothes off and inserted his penis into her vagina;
(h)F was shouting at him and trying to push him away;
(i)he digitally penetrated her and, before doing so, F told him to 'Stop it';
(j)F could not push him off of her, as he is double her weight;
(k)he ejaculated inside F; and
(l)he said he raped her and that he penetrated her 'doggy style'.
The respondent initially denied forcing F to perform oral sex on him. When the interviewing police officers asked him about the triple zero recording of him saying 'Open your mouth', the respondent said that he did not remember. He also told the police that he did not remember if he touched F's throat.
After the respondent was arrested, he was remanded in custody. His telephone calls from prison were monitored.
As to count 7, the respondent telephoned F from custody on a number of occasions. In the course of his conversations with F, the respondent sought to suborn her into dropping the charges that had been brought against him. Specifically, the respondent said to F:
(a)'Can you drop them?' [the charges].
(b)'Don't talk about anything else to them [the police], I could be doing 10 years'.
(c)That there were ways around [the proceedings] and that he would speak to her at a visit on Wednesday, because prison calls were monitored.
(d)'If you want to help, Google legal advice and tell them the situation. Talk to them about this whole thing and how you can help me. It has to be done soon, okay?'.
(e)'You can change that, you're the only witness to this thing'.
(f)'It's the only way you can do it, call for legal advice. Would you do that for me? Do it for me, as my wife'.
(g)'It was all incorrect. Tell them, police, we were drunk. We need to talk tomorrow, this can't be over the phone'.
The respondent also spoke to a man, LC, by telephone. LC told the respondent that he had been talking to F and had tried to get her to drop the charges. The respondent replied, 'Yeah, I'm hoping so, man. But I think it's in the police hands now'. Later, the respondent spoke to F and asked, 'Did [LC] speak to you? Have you done anything yet? I need you to do it ASAP'.
The respondent's personal circumstances
The respondent was 28 years old at the time of sentencing and 27 at the time of the offending. He is the eldest of two children from his parents' marriage and has four half-siblings from his mother's previous relationship. His parents separated when he was young and both have since re‑partnered. The respondent is close to both sides of his family, who remain supportive of him.
The respondent struggled at school because of his dyslexia. He left school at the end of year 11 and completed an apprenticeship in carpentry. Up until his arrest and remand in custody, the respondent has been constantly employed and has had his own business. The sentencing judge accepted that the respondent is a hardworking man.
Although the respondent appears to be in good physical health, he struggled with alcohol and methylamphetamine use between the ages of 19 and 25. Immediately before the offending, the respondent had relapsed into methylamphetamine use and was, on the night of the offending, coming down from methylamphetamine. He was also significantly intoxicated with alcohol at the time. Both shortly before and since the offending, the respondent has experienced anxiety, depression and thoughts of self‑harm.
The respondent has no prior criminal history and was sentenced on the basis that he was a person of prior good character, notwithstanding that he had previously been violent towards F.
Psychological and pre-sentence reports
The sentencing judge was provided with court ordered pre‑sentence and psychological reports.
According to the author of the psychological report:
(a)The respondent readily acknowledged responsibility for the bulk of his offending, albeit that his memory of some of his behaviour was vague because he was heavily intoxicated at the time.
(b)There was no evidence to indicate sexual deviancy, pro‑violence attitudes and beliefs, poor attitudes towards women, or attitudes around sexual entitlement in the respondent.
(c)The offending appears to have occurred in the context that the respondent's judgment was significantly impaired by his heavy intoxication.
(d)The respondent lashed out violently and sexually as a way of asserting some control over F, and he may have done so as an attempt to compensate for feelings of failure, inadequacy and helplessness. However, his physical and sexual violence towards F was also a form of punishment.
(e)The respondent expressed genuine remorse and disgust for his behaviour.
(f)The respondent has 'issues with emotional management, coping and communication'.
(g)The respondent has 'solid pro‑social support available to him; stable accommodation with his mother and stepfather; and opportunity for employment. He also impresses as being genuinely amenable to treatment of his criminogenic needs'.
The sentencing remarks
With respect to what her Honour called 'the first tranche of offending', a reference to counts 1 ‑ 6, her Honour identified the following aggravating factors:[24]
[24] ts 22.
(a)The deprivation of liberty 'involved significant levels of … control', including that the respondent forced F into the car and drove in a manner that caused 'very real danger', in the course of which he threatened to kill himself.
(b)The sexual offending occurred:
(i)in the context that the respondent had already put F in danger;
(ii)in circumstances where F was entitled to look to the respondent for protection, as her husband;
(iii)in circumstances where the respondent was physically much bigger than F, who was not able to resist him; and
(iv)in the family home, a place where F was entitled to feel safe.
(c)The offending took place over a period of about two hours.
In respect of count 7, this offence demonstrated the extent to which the respondent was prepared to coerce and exercise control over F.
Later in the sentencing remarks, when explaining why the offending warranted terms of immediate imprisonment, her Honour said:[25]
[A]s has been conceded by[defence counsel], on your behalf, this really is such serious offending that it warrants a term of immediate imprisonment. It's the only appropriate sentence because this offending was sustained over a period of up to a couple of hours. It involved you first returning your wife to [the house], against her will, having held her around her neck to make sure she went to the car, and when she wanted to go.
And during the drive home, you made a number of threats to kill yourself and her and you called her 'A fucking dog'. You stopped on the freeway to let her out but then made her return to the car. The possibility of death, or at least a very severe injury, was a real one. You were intoxicated, the bar tab being something like about $1,200 on that night and you were driving on the freeway. And during that 000 call, her fear was palpable.
Once at the house, the sexual offending was also sustained. You took off her clothes, over her objections, you hurt her when you penetrated her, digitally, and you penetrated her with your penis, orally, while you had your hands around her neck, and you squeezed. And then, twice, vaginally, until you ejaculated. You weren't wearing a condom. And each of the sexual assaults may not have lasted very long, but you continued to force your victim, both physically and by your words, and by the prior, really, violent behaviour towards her.
I've got to say that the 000 calls, through the drive and through the sexual assault, make very sobering listening. They demonstrated that your victim was very distressed, and that was obvious to you. She continually asked you to stop, both in the car, and once you returned home and you were sexually assaulting her. And she was calling out in pain and distress, but you continued.
I've also seen and listened to the CCTV from your house. In addition to capturing the faint, audio recording of the sexual assault, the footage shows your victim sobbing and running from the house to escape you, partially clothed. You then came outside and took a call from a friend, where you described your wife as being aggressive. So you certainly had no insight, at that stage, into what you had done.
And with respect to the calls constituting the attempt to pervert the course of justice, they really demonstrated the exercise of coercion over her. So the whole of this offending has to be seen in the context of your family relationship. And you offended against your wife, who is substantially smaller than you, and was entitled to be protected. And she, really, did need protection from you on that night.
[25] ts 25 - 26.
After announcing the individual sentences and the total effective sentence that she imposed upon the respondent, her Honour characterised his overall offending as 'incredibly serious'.[26]
[26] ts 27.
In addition to the pleas of guilty, her Honour identified a number of mitigating factors, including:
(a)The offending was out of character.
(b)The respondent was committed to rehabilitation.
(c)The respondent was remorseful.[27] In coming to this conclusion, her Honour noted that the respondent had, in his telephone conversations with F while in custody on remand, appeared to attribute blame to F for the offending. Further, as shown by count 7, he had sought to suborn F into changing her evidence. Nevertheless, her Honour accepted that since making these calls, the respondent had had more time to reflect. Her Honour's acceptance that the respondent was remorseful was based upon what was said in the psychological report and 'the way [the respondent] appeared to [her] '.[28]
[27] ts 24.
[28] ts 24 - 25.
Her Honour gave a discount of 25%, pursuant to s 9AA of the Sentencing Act, for the respondent's pleas of guilty, but did not expressly find that the pleas were entered at the first reasonable opportunity.
Her Honour expressly had regard to the totality principle. She reduced the sentence of imprisonment she would otherwise have imposed on count 1 from 2 years to 9 months for this reason. She also reduced the sentence of imprisonment she would otherwise have imposed on count 7 from 18 months to 9 months for totality.
Ground 1 - alleged error in reducing the respondent's sentence on each count by 25% pursuant to s 9AA(4)(b) of the Sentencing Act
Her Honour reduced the sentence for each offence in the indictment by 25%, pursuant to s 9AA of the Sentencing Act.
Section 9AA of the Sentencing Act states:
(1)In this section -
fixed term has the meaning given in section 85(1);
head sentence, for an offence, means the sentence that a court would have imposed for the offence if -
(a)the offender had been found guilty after a plea of not guilty; and
(b)there were no mitigating factors;
victim has the meaning given in section 13.
(2)If a person pleads guilty to a charge for an offence, the court may reduce the head sentence for the offence in order to recognise the benefits to the State, and to any victim of or witness to the offence, resulting from the plea.
(3)The earlier in the proceedings the plea is made, the greater the reduction in the sentence may be.
(4)If the head sentence for an offence is or includes a fixed term, the court must not reduce the fixed term under subsection (2) -
(a)by more than 25%; or
(b)by 25%, unless the offender pleaded guilty, or indicated that he or she would plead guilty, at the first reasonable opportunity.
(5)If a court reduces the head sentence for an offence under subsection (2), the court must state that fact and the extent of the reduction in open court.
(6)This section does not prevent the court from reducing the head sentence for an offence because of any mitigating factor other than a plea of guilty.
As the statutory text makes clear, the maximum reduction for a plea of guilty is 25%. A reduction of 25% must not be allowed unless the offender pleaded guilty, or indicated that he or she would plead guilty, at the 'first reasonable opportunity'. The quantum of any reduction is informed by the considerations set out in subsections (2) and (3) of s 9AA. A sentencing judge has a discretion as to the quantum of a discount that is informed by those considerations.[29]
[29] SAL v The State of Western Australia [2021] WASCA 192 [122].
This court has held that the first opportunity is not necessarily the first reasonable opportunity to enter a plea of guilty. Whether or not it is requires an objective assessment, having regard to all relevant circumstances in the particular case, as to whether it would have been reasonable for the accused to have pleaded guilty on an earlier occasion.[30] This court has also held that:
(a)even if a plea of guilty is entered at the first reasonable opportunity, it does not automatically follow that a reduction of 25% must be made; and
(b)other factors may come into play in the assessment of the discount, such as the strength of the State's case.[31]
[30] SAL [123].
[31] See Abraham v The State of Western Australia [2014] WASCA 151; (2014) 244 A Crim R 1.
As already mentioned in these reasons, it is conceded by the respondent that his pleas of guilty with respect to counts 1 ‑ 5 and count 7 were not entered at the first reasonable opportunity. The concession was properly made. In fact, the respondent's pleas of guilty were entered on 27 July 2021, at the respondent's 13th appearance in the Magistrates Court, which was his second committal mention date. While there were some plea negotiations between defence counsel and the State in relation to other charges, there was nothing preventing the respondent from pleading guilty to the relevant charges at an earlier time.
Because the respondent did not enter his pleas of guilty on counts 1 ‑ 5 and count 7 at the first reasonable opportunity, her Honour did not have the statutory power to reduce the head sentences she would otherwise have imposed for these offences by 25%. Accordingly, her Honour erred in law in doing so. It is accepted by the respondent that her Honour's error was material because it affected the sentences that were imposed on each of the relevant counts. In respect of counts 1 ‑ 5 and count 7, this error, regardless of grounds 2 and 3, would have enlivened this court's power to resentence the respondent.
The situation with respect to count 6 is different. Count 6 was added to the indictment by the State on an ex officio basis. The plea of guilty entered by the respondent to this offence was entered at the first reasonable opportunity. This was accepted by the State at the hearing of the appeal.[32]
[32] Appeal ts 2.
Accordingly, ground 1 has been made out. The appeal must be allowed on ground 1 in respect of all of the offences, save for count 6.
Grounds 2 and 3 - alleged manifest inadequacy with respect to counts 3 ‑ 6 and alleged infringement of the first limb of the totality principle
Ground 2 contends that the individual sentences for each offence of aggravated sexual penetration without consent, being 18 months' imprisonment on count 3, 3 years' imprisonment on count 4, 4 years' imprisonment on count 5 and 4 years' imprisonment on count 6, were manifestly inadequate. Ground 3 contends that the total effective sentence of 5 years 6 months' imprisonment, for all of the respondent's offending, infringed the first limb of the totality principle.
Both of these grounds allege implied error on the part of the sentencing judge.
Grounds 2 and 3 - submissions
With respect to ground 2, the State submits, in essence, that the individual sentences imposed on counts 3 - 6 fail to properly reflect the various aggravating factors and the high statutory maximum penalty and were so low as to manifest error. The respondent accepts that there were a number of aggravating factors but submits that these were balanced by a number of important mitigating factors. Ultimately, the respondent submits that the sentences imposed on counts 3 - 6 were all within the sound discretionary range of sentences available to her Honour and were not so low as to manifest error.
With respect to ground 3, the State submits that the total effective sentence failed to adequately reflect the respondent's overall criminality and the seriousness of his offending. The State points to the sentencing judge's failure to accumulate the individual sentences, other than the accumulation of count 1 and count 7 (the sentences for which were heavily reduced for totality) upon the head sentence for count 6. The respondent submits that her Honour's application of the totality principle, in reducing the individual sentences on counts 1 and 7 before making them cumulative on the head sentence, was appropriate and orthodox, and that the total effective sentence bore a proper relationship to the respondent's overall criminality.
Grounds 2 and 3 - disposition
The general principles applicable to allegations of implied error of the kind alleged in this case are well established and have been stated in many cases decided by this court. One such case is Kabambi v The State of Western Australia. The relevant principles, as summarised in that case, are as follows: [33]
(1)Sentencing is a discretionary exercise. An appellate court can intervene only if the appellant demonstrates either an express or implied material error. Express error involves acting on a wrong principle, for example by mistaking the law or facts or taking into account an irrelevant matter. Implied error arises where the end result is so unreasonable or unjust that the court must conclude that a substantial wrong has occurred. Thus, an appellate court cannot substitute its own opinion for that of the sentencing court merely because the appellate court would have exercised a sentencing discretion differently.
(2)In order to determine whether a sentence for an individual offence is manifestly excessive or inadequate, the offence should be viewed in light of the maximum sentence prescribed by law for the crime, the standards of sentencing customarily imposed with respect to it, the place that the criminal conduct occupies in the scale of seriousness of crimes of that type, and the offender's personal circumstances.
(3)The first limb of the totality principle requires that the total effective sentence imposed on an offender who has committed multiple offences bears a proper relationship to the overall criminality involved in all of the offences (including those, if any, in respect of which the offender is still serving or is yet to serve a term of imprisonment), viewed in their entirety, having regard to all relevant facts and circumstances including those referable to the offender personally (and including, for example, the desirability of accommodating any wish to rehabilitate), all relevant sentencing factors and the total effective sentences imposed in comparable cases.
(4)The range of sentences customarily imposed for a crime does not establish the range of a sound exercise of the sentencing discretion. Sentences customarily imposed in comparable cases provide a yardstick or reference point for ensuring broad consistency in sentencing, bearing in mind the scope for significant variations in relevant sentencing factors, and that there is no single correct sentence. What is important is the unifying principles which sentences imposed in comparable cases reveal and reflect.
(5)When this court dismisses an appeal against sentence and when it resentences on a successful appeal, its decision does not fix the upper or lower limit of the range.
(6)Where there is a challenge on totality grounds, the severity of a sentence imposed on an individual count generally falls to be assessed in light of the sentences imposed in respect of the other counts and its contribution to the total effective sentence. A heavy individual sentence (which is not manifestly excessive) may be softened by an order that it be served concurrently with sentences imposed in relation to the other counts. A relatively light sentence (which is not manifestly inadequate) may, as a practical matter, have increased severity if it is ordered to be served cumulatively. The real question is whether the total effective sentence is unreasonable or plainly unjust.
[33] Kabambi v The State of Western Australia [2019] WASCA 44 [21].
The offences contrary to s 326 of the Code carry a maximum penalty of 20 years' imprisonment. In contrast, the maximum penalty for unaggravated offences of sexual penetration without consent, contrary to s 325 of the Code, is 14 years' imprisonment.
There is no tariff for offences of sexual penetration without consent, whether aggravated or not. This is because, as Steytler P observed in The State of Western Australia v Akizuki,[34] the circumstances of sexual offending and of sexual offenders are almost infinitely variable, such that the sentence imposed in one case can provide only limited guidance in other cases. This is reflected in the broad range of sentences customarily imposed in previous cases decided by this court. The seriousness of every case of unlawful sexual penetration must be determined by its own individual circumstances.[35] Thus, there is no hierarchy of sexual penetration; that is, there is no a priori starting point that one category of sexual penetration in s 325 of the Code is inherently more serious than another.
[34] The State of Western Australia v Akizuki [2008] WASCA 267; (2008) 192 A Crim R 373 [68].
[35] The State of Western Australia v Rayapen [2023] WASCA 55 [235] citing with evident approval C v The State of Western Australia [2006] WASCA 261 [35]; Akizuki [68]; Musgrave v The State of Western Australia [2021] WASCA 67 [6], [126], [284] ‑ [286]; The State of Western Australia v HNU [2023] WASCA 6 [67] ‑ [70].
Sentences customarily imposed for offences of sexual penetration without consent are not irrelevant and provide a yardstick or reference point for ensuring broad consistency in sentencing. However, in cases of sexual penetration without consent, perhaps more than in cases concerned with other types of offending, the sentences customarily imposed cannot be thought of as establishing a range for a sound exercise of the sentencing discretion.[36]
[36] Rayapen [237].
As alleged by the State, each count of aggravated sexual penetration in this case was a serious example of its type. In each instance, the respondent, who was physically much larger than F, forced himself upon a vulnerable victim who had no ability to resist or escape. In each instance, F made it abundantly clear that she was not consenting to the act of sexual penetration. F was, throughout the ordeal, plainly terrorised and humiliated. When F begged the respondent not to rape her, he callously ignored her plea and, at one point, said that he could rape her if he wanted. The digital penetration, and at least one of the penile penetrations, caused F obvious pain. Nevertheless, the respondent continued his assault on F. Further, the respondent ignored F's repeated pleas to stop. The respondent did not wear a condom and ejaculated in F's vagina. His conduct evinced a strong indication of sexual entitlement over F.
As Pritchard JA (Quinlan CJ agreeing) observed in Musgrave v The State of Western Australia,[37] in the context of an offence contrary to s 325 of the Code:
The criminality which is prohibited by the offence of sexual penetration without consent in s 325(1) of the Criminal Code is the exercise of dominion over another person by violating that person's bodily integrity - an integral aspect of their human dignity - by the penetration of a part of their body (or by the manipulation of a part of their body so as to penetrate a part of the offender's body) without their consent to that conduct. Conduct of that kind involves an abject disregard by the offender for the victim's dignity as a human being, and for their autonomy and bodily integrity. From that perspective, it is not surprising that s 325 of the Criminal Code does not draw a distinction between the kinds of penetration (defined in s 319(1)) which may constitute a contravention of the section.
[37] Musgrave [281]. See also Pulleine v The State of Western Australia [2023] WASCA 23 [43].
The standards of sentencing customarily imposed for aggravated sexual penetration without consent were recently discussed by this court in Mehta v The State of Western Australia.[38]
[38] Mehta v The State of Western Australia [2023] WASCA 24 [174] ‑ [188].
It has been frequently observed that while there is no tariff for offences of sexual assault, a single count of non‑aggravated penile penetration of the vagina can be expected to result in a term of immediate imprisonment, after trial, of around 5 or 6 years, subject to the relevant aggravating or mitigating circumstances. A sentence outside the range of 5 to 6 years' imprisonment for non‑aggravated sexual penetration will not necessarily be manifestly excessive or manifestly inadequate. This may be seen from such cases as The State of Western Australia v Hussian;[39] Thong v The State of Western Australia;[40] and Mehta and the cases cited therein.
[39] The State of Western Australia v Hussian [2020] WASCA 186 [120].
[40] Thong v The State of Western Australia [2020] WASCA 182 [221].
The respondent's personal circumstances must be weighed against the objective seriousness of the offences he committed. However, in dealing with sexual offences of the kind committed by the respondent, personal circumstances are of comparatively less weight, although they are not irrelevant. As recently stated by this court in HNU:[41]
Personal circumstances are of comparatively less weight in dealing with sexual offences. That does not, of course, mean that personal circumstances are irrelevant. It does mean that personal circumstances are unlikely to justify a sentence which is very low having regard to the serious objective circumstances of an offence. The dominant sentencing considerations for sexual offences are punishment and general and specific deterrence. (footnotes omitted)
[41] HNU [64].
The most important mitigating factor in this case was the respondent's plea of guilty, which, for the purposes of analysing grounds 2 and 3, is the discount pursuant to s 9AA that was given by the sentencing judge.
In my opinion, each of the individual sentences imposed for counts 3 ‑ 6 were manifestly inadequate and the total effective sentence infringed the first limb of the totality principle. The individual sentences and the total effective sentence were unreasonable or plainly unjust. My reasons for these conclusions are as follows.
I have already described the objective seriousness of the respondent's offences of aggravated sexual penetration without consent. To this assessment must be added the circumstances of counts 1, 2 and 7. Each of these offences was a serious example of its type. As to count 1, the respondent deprived F of her liberty for a period of approximately two hours. In that time, he assaulted and terrorised her. The terror began by the forceful way in which he made F, in public, walk to and enter the car. He drove her to the house in a deliberately dangerous way and in such a manner as to cause F to genuinely, and understandably, fear for her life. He prevented her from exiting the car, pulled her back in when she managed to exit the car, and threatened to kill himself and her. The threat to kill, which is the subject of count 2, heightened F's terror. From her perspective, the threats were genuine, and the respondent appeared to have the means of carrying them out by driving in the manner that he did. Upon arriving at the house, he kept F against her will and humiliated her by forcing her to undress. He then repeatedly sexually assaulted her despite her pleas for him to stop. The separate offending in count 7 occurred after the commission of counts 1 ‑ 6. The respondent's efforts to suborn F were manipulative, persistent and calculated. The respondent not only telephoned F to have her 'drop the charges', but he also enlisted a friend to speak to F with the same purpose in mind.
It cannot be overlooked that the entire offending occurred in the context of a domestic setting. The respondent, grossly in this case, abused the trust his wife placed in him, using his greater physical strength to overcome any resistance and to dominate, terrify and humiliate F. F was a highly vulnerable victim who could not readily extricate herself from the position into which the respondent forced her. It is the duty of courts to impose a proper sentence that is commensurate with the seriousness of the offending in order to, as far as courts can, protect victims of domestic violence and to denounce such conduct.[42]
[42] Bropho v Hall [2015] WASC 50 [16] (Mitchell J).
In respect of all of the offending, the sentencing objectives of proper punishment, denunciation and general deterrence were foremost. While the respondent's personal circumstances were not to be ignored, they could not, when weighed against the 'incredibly serious' nature of the respondent's offending, give rise to what, on any analysis, were unduly lenient individual sentences for counts 3 ‑ 6 and an unduly lenient total effective sentence.
An examination of the comparable cases, while acknowledging their limited utility, point towards a conclusion that the individual sentences on counts 3 ‑ 6 and the overall total effective sentence imposed upon the respondent were too low.
Even if the respondent had been rightly given a reduction of 25%, pursuant to s 9AA of the Sentencing Act, the individual sentences and the total effective sentence were significantly less than what might reasonably be thought to be imposed upon a sound exercise of the sentencing discretion. Grounds 2 and 3 must be upheld.
The residual discretion
This court has a discretion to dismiss a State appeal against sentence even though a ground or grounds of appeal have been established. This discretion derives from s 31(4) of the Criminal Appeals Act 2004 (WA).[43] The onus is on the State to negate any reason why the residual discretion of this court not to interfere should be exercised. The respondent did not seek to invoke the residual discretion in this case. I am positively satisfied that I should not exercise the residual discretion to dismiss the appeal. The individual sentences imposed by her Honour with respect to counts 3 ‑ 6 and the total effective sentence were all inadequate. It is the responsibility of this court to ensure that proper sentencing standards are upheld. The appeal must be allowed to ensure the maintenance of those standards. Further, the respondent, in substance, conceded the error alleged in ground 1.
[43] See Munda v The State of Western Australia [2013] HCA 38; (2013) 249 CLR 600.
Resentencing
This court has all of the materials necessary to resentence the respondent afresh.
It is unnecessary to repeat what I have already written about the circumstances and seriousness of the offending and the respondent's personal circumstances. As for the discount pursuant to s 9AA of the Sentencing Act, and bearing in mind the timing of the pleas and the strength of the case against the respondent, I would give a discount of 15% pursuant to s 9AA for each of counts 1, 2, 3, 4, 5 and 7. I have also had regard to the mitigating factors identified by her Honour at first instance. With respect to count 6, in my opinion the respondent was entitled to a 20% reduction under s 9AA of the Sentencing Act.
I would impose the following individual sentences:
Count 12 years' imprisonment
Count 22 years' imprisonment
Count 35 years' imprisonment
Count 46 years' imprisonment
Count 56 years' imprisonment
Count 65 years 9 months' imprisonment
Count 72 years' imprisonment
I would reduce the sentence on count 7 for totality to 18 months' imprisonment.
I would order that the sentences on counts 1, 4 and 7 be served cumulatively, and the sentences for the other offences be served concurrently with the sentence on count 4. Thus, the total effective sentence I would impose is 9 years 6 months' imprisonment. I am satisfied that this is a proper reflection of the first limb of the totality principle. Accordingly, I would resentence the respondent to a total effective sentence of 9 years 6 months' imprisonment, with eligibility for parole, backdated to commence on 31 October 2020.
Conclusion
For the reasons I have given, the orders of the court I would propose are as follows:
1.The appeal is allowed.
2.The sentences imposed by Gillan DCJ on 30 November 2021 are set aside.
3.The respondent is resentenced as follows:
Count 12 years' imprisonment
Count 22 years' imprisonment
Count 35 years' imprisonment
Count 46 years' imprisonment
Count 56 years' imprisonment
Count 65 years 9 months' imprisonment
Count 718 months' imprisonment
4.The sentences on counts 1, 4 and 7 are to be served cumulatively, and the sentences on counts 2, 3, 5 and 6 are to be served concurrently with the sentence on count 4.
5.For the avoidance of doubt, the new total effective sentence imposed upon the respondent is 9 years 6 months' imprisonment. The respondent is eligible for parole, and the total effective sentence is backdated to commence on 31 October 2020.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
TDSM
Associate to the Honourable Justice Mazza
1 SEPTEMBER 2023
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