The State of Western Australia v Miller - [2005] WASCA 53

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE COURT OF APPEAL (WA)

CITATION: THE STATE OF WESTERN AUSTRALIA -v- MILLER [2005] WASCA 53

CORAM: STEYTLER P
ROBERTS-SMITH JA
MCLURE JA

HEARD: 17 FEBRUARY 2005

DELIVERED : 24 MARCH 2005

FILE NO/S: CCA 161 of 2004

BETWEEN: THE STATE OF WESTERN AUSTRALIA
Appellant
AND
SHANNON PAUL MILLER
Respondent

ON APPEAL FROM:
Jurisdiction              :  DISTRICT COURT OF WESTERN AUSTRALIA
Coram  :CHANEY DCJ
File No  :IND 809 of 2003

Catchwords:

Criminal law and procedure - Sentencing - Crown appeal - Considerations applicable - Aggravated burglary and sexual assaults - Whether "one transaction rule" applicable - Nature of that "rule" - Whether sentences imposed were manifestly inadequate

Legislation:

Sentencing Legislation Amendment and Repeal Act 2003 (WA), s 22, cl 2(1), Sch 1

Result:

Appeal allowed
Sentence set aside; new sentence imposed

Category: D

Representation:

Counsel:

Appellant: Mr K P Bates & Mr T B L Scutt
Respondent: Mr M J Aulfrey

Solicitors:

Appellant: State Director of Public Prosecutions
Respondent: Ian Hope

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

Attorney‑General v Tichy (1982) 30 SASR 84
Dicker v Ashton (1974) 65 LSJS 150
Everett and Phillips v The Queen (1994) 181 CLR 295
Herbert v The Queen (2003) 27 WAR 330
Malvaso v The Queen (1989) 168 CLR 227
Pearce v The Queen (1998) 194 CLR 610
R v Allpass (1993) 72 A Crim R 561
R v Brown (1982) 5 A Crim R 404
R v Clarke (1996) 2 VR 520
R v Faithfull (2004) 142 A Crim R 554
R v Narrier (2000) 111 A Crim R 405
R v O'Brien and Gloster [1997] 2 VR 714
R v O'Rourke [1997] 1 VR 246
R v Ruane (1979) 1 A Crim R 284
R v Scanlon (1987) 89 FLR 77
R v White [2002] WASCA 112
Slowiak v The Queen [2004] WASCA 112
Steels v The Queen, unreported; CCA SCt of WA; Library No 930306; 27 May 1993

Case(s) also cited:

R v Heferen (1999) 106 A Crim R 89
R v Walsh, unreported; CCA SCt of WA; Library No 9504011; 4 August 1995
The State of Western Australia v ABM [2004] WASCA 90

STEYTLER P: This is a Crown appeal against sentence.
The respondent pleaded guilty to one count of aggravated burglary (count 1), one count of sexual penetration by cunnilingus (count 2), one count of indecent assault (count 3) and one count of sexual penetration in the form of penile penetration (count 4). He was sentenced to a total term of 4 years' imprisonment, after the statutory reduction provided for by s 22 of the Sentencing Legislation Amendment and Repeal Act 2003 (WA) read with cl 2(1) of Sch 1 thereof. The individual sentences imposed (after reduction) were sentences of 2 years and 8 months' imprisonment in respect of count 1, 2 years and 4 months' imprisonment in respect of count 2, 4 months' imprisonment in respect of count 3 and 4 years' imprisonment in respect of count 4. All of those sentences were ordered to be served concurrently. They were backdated to 18 September 2004, the date upon which the respondent was taken into custody.

Circumstances of the Offences

The respondent, then 25 years old, had met his 42‑year‑old victim prior to the commission of these offences. He had seen her on two or three occasions, having twice had brief conversations with her. During the second of those conversations he had asked her whether she lived alone (she did), whether she was on the telephone (she was not) and whether she had a boyfriend. He realised, from his conversations with her, that she suffered from a psychiatric condition (in fact, schizophrenia, for which she took medication). In a later videotaped interview, the respondent told police that he knew that the complainant "wasn't all there", although he also said that he "wouldn't have thought that she was a slow learner". Whatever the respondent may have believed about the complainant's psychiatric condition, he plainly understood that she was more vulnerable than the average person.
On the night of 25 October 2002 the respondent went out with friends. He consumed two or three ecstasy tablets and a substantial amount of alcohol. He then went home. In the early hours of the morning of 26 October 2002, having armed himself with an iron bar and a screwdriver, and having covered his face with a pillowslip, he went to the complainant's unit. Once there, he attempted to lever open a window, breaking it in that process. This disturbed the complainant, who called out for help. Undeterred, the respondent entered the complainant's lounge room, where she was, by then, standing. He stood there, hitting the iron bar on his hand in a manner which appeared to the complainant to be threatening. He told her that he wanted sex.
Realising that she had no choice, the complainant agreed to have sex with the respondent. She removed the pillowslip from the respondent's head and recognised him as the man to whom she had previously spoken. She asked him to have a shower before having sex with her and he did so. Then, having asked her to take him to the bedroom, the respondent performed cunnilingus on the complainant (count 2), lifted her top and put his mouth on her left breast (count 3) and then had penile sex with her (count 4). At the complainant's request, he withdrew from her before ejaculation. Shortly afterwards he left the unit, having first helped the complainant to clean up the broken glass from the window. He left behind the iron bar and screwdriver. Two days later the complainant told the police what had happened. The applicant was subsequently charged with these offences.

The Sentencing Judge's Remarks

The sentencing Judge, after referring briefly to these events in the course of his sentencing remarks, mentioned that the respondent's counsel had submitted that the respondent, in his intoxicated state, had believed (albeit unreasonably so) that the sexual acts that had occurred were consensual. The sentencing Judge also said that the complainant's apparent resignation to what was about to happen to her was readily understandable, given the need for self‑preservation. He went on to say:
"So as a consequence of that, what occurred in the bedroom of the unit occurred without any violence or force and may have seemed in your muddled state to have been a sexual encounter not greatly out of the ordinary. That doesn't diminish significantly the trauma that the whole event must have posed for the victim."
The respondent had a criminal record which primarily encompassed a number of relatively minor offences, although he had, on 22 September 2000, been convicted on a charge of aggravated burglary and sentenced to an 18‑month community based order. Drugs and alcohol appear to have played a prominent part in his offending behaviour. Notwithstanding this, he has a supportive family and a reasonably good employment record. His pleas of guilty to the offences charged were made only on the morning upon which his trial was due to commence.
Each of these factors was taken into account by the sentencing Judge, who found that the respondent had displayed "an element of remorse". He considered it unlikely that the respondent would reoffend in a similar way.
When he came to sentence the respondent, the sentencing Judge said that, because the events giving rise to the charges had all occurred "as part of a single transaction", the sentences which he proposed to impose in relation to each count should be served concurrently. He then imposed the concurrent sentences to which I have earlier referred.

Grounds of Appeal

There are three grounds of appeal. The first is that the sentencing Judge "erred in imposing individual sentences which were out of line with other sentences imposed for similar offences without reasonable cause for this disparity". The second is that he erred in ordering that each of the terms of imprisonment be served concurrently. The third is that he erred in imposing an overall term that in the circumstances was manifestly inadequate. While each of those grounds is particularised, it is unnecessary, for present purposes, to recite the particulars.

Crown Appeals

It is convenient to deal with the three grounds of appeal together. However, before doing so I should underline the particular considerations which apply to State or Crown appeals of this kind.
It is settled that such appeals should be brought only in "the rare and exceptional case": Everett and Phillips v The Queen (1994) 181 CLR 295 at 299, per Brennan, Deane, Dawson and Gaudron JJ. The reason for this has been said to be that an appeal of this kind "represents a departure from traditional standards of what is proper in the administration of criminal justice in that, in a practical sense, it is contrary to the deep‑rooted notions of fairness and decency which underlie the common law principle against double jeopardy …": Malvaso v The Queen (1989) 168 CLR 227 at 234, per Deane and McHugh JJ. Some of the exceptional occasions which might arise for the bringing of a Crown appeal are summarised in R v Clarke (1996) 2 VR 520 at 522, per Charles JA. One of these, which is relevant for present purposes, is a case in which a sentence is so manifestly inadequate, or so productive of an inconsistency in sentencing standards, as to amount to an "error in point of principle": Everett at 300.

Was There an Error in Principle by the Sentencing Judge?

In considering whether or not there was an error of that kind, it is convenient, first, to deal with the sentencing Judge's finding that, because the offences occurred "as part of a single transaction", each of the sentences imposed should be served concurrently.
The so‑called "one transaction rule" or "continuing episode rule" is essentially that concurrent sentences should be imposed in respect of a number of offences which "arise from substantially the same act or same circumstances or a closely related series of occurrences": R v Brown (1982) 5 A Crim R 404 at 407. In Attorney‑General v Tichy (1982) 30 SASR 84 at 93 the rule was said to apply in a case of "one multi‑faceted course of criminal conduct" and, in Pearce v The Queen (1998) 194 CLR 610 at 650 [120] Kirby J said that a judge may make sentences for multiple offences of which an accused is convicted concurrent if they are "considered to be manifestations of the one criminal enterprise, transaction or episode".
The underlying principle of the "rule" has been said to be that all the offences taken together constitute a single invasion of the same legally protected interests: D A Thomas, Principles of Sentencing (2nd ed) at 53. However, there are cases in which distinct and unrelated offences have been treated as if they were related for the purposes of concurrency because they were committed within a short period of time: see, for example, R v Scanlon (1987) 89 FLR 77.
In Dicker v Ashton (1974) 65 LSJS 150 at 151 (cited with approval by Asche CJ in Scanlon, at 80 ‑ 81), Wells J said:
"… unless the circumstances are exceptional or the offences in question are the terminal product of separate and independent courses of criminal conduct that happen to have occurred together, a court is not ordinarily justified in imposing cumulative sentences of imprisonment for offences that are of a similar character or ordinarily associated and that simply represent facets of one course of conduct".
The so‑called "rule" is not a rule at all. It is merely a guideline. In R v Ruane (1979) 1 A Crim R 284, it was described as a "good working rule". Each case depends upon its own circumstances and it is for the sentencing Judge to determine whether the application of the guideline would result in an appropriate measure of the total criminality involved in the conduct: R v Faithfull (2004) 142 A Crim R 554 at [28], per McLure J (with whom the other members of the Court were in agreement); R v White [2002] WASCA 112; R v O'Rourke [1997] 1 VR 246 at 253 and R v O'Brien and Gloster [1997] 2 VR 714 at 720 ‑ 721. As was said by McHugh, Hayne and Callinan JJ in Pearce at 623, the punishment to be exacted should reflect what an offender has done and should not be affected by the way in which the boundaries of particular offences are drawn.
In my respectful opinion, this case was not one in which, because of the so‑called "one transaction rule", all of the sentences imposed should necessarily have been ordered to be served concurrently. The offending did not constitute "a single invasion of the same legally protected interests". The aggravated burglary amounted to an invasion of a property interest (albeit with a view to committing sexual offences), whereas the sexual offences involved an invasion of the complainant's bodily and sexual integrity. While the burglary was seemingly committed for the purpose of sexually assaulting the complainant, that offence and the sexual offences were otherwise separate and distinct.
More importantly, it seems to me that the individual sentences and the total sentence imposed were so manifestly inadequate as to reflect an error in principle.
The aggravated burglary was a premeditated offence, committed at the home of a particularly vulnerable woman, by a masked and armed invader who was undeterred by his victim's cries for help. As was submitted on behalf of the appellant, the Court of Criminal Appeal has, in this State, upheld significantly greater sentences than that imposed by the sentencing Judge for less serious offences.
In Herbert v The Queen (2003) 27 WAR 330, Anderson J, after mentioning that in 1996 Parliament had increased the maximum penalty for burglary from 14 years to 18 years, due to its prevalence and community concern in respect of it, went on to conclude that sentences of 5 years' imprisonment for each of two burglaries was not manifestly excessive. In that case no householder had been present during the burglaries, which had involved forced entry followed by a thorough search of the premises, involving rummaging through bedrooms, cupboards and drawers and the taking of everything of value which could easily be carried away. The offender pleaded guilty to the offences charged.
In Slowiak v The Queen [2004] WASCA 112 the applicant, a 26‑year‑old man, after robbing a bank, broke into a house in which there was a 21‑year‑old woman. He forced her to sit down and not move. After a time, he forced her to follow him into the kitchen where he took a 30‑centimetre kitchen knife and held it in his hand in a threatening manner. He detained her for a period of some three hours. At different times, three young men who lived at the house arrived there and were also detained by the applicant. Eventually, the applicant was driven to a tavern, at his request, by two of the men. When he arrived there, he walked away. He was subsequently arrested and charged. He made early pleas of guilty to all charges. He had an extensive criminal record and little prospect of rehabilitation. He was sentenced to terms of 7 years' imprisonment for the armed robbery, 8 years and 6 months' imprisonment for the aggravated burglary, 3 years' imprisonment for the deprivation of liberty of the young woman and 2 years' imprisonment for the deprivation of liberty of each of the young men. The sentences were structured so as to give rise to a total term of 9 years' imprisonment with no eligibility for parole. On an appeal by the applicant, the Court of Criminal Appeal (Malcolm CJ and Templeman and Wheeler JJ) declined to interfere with the sentences imposed, although one of them (Wheeler J) said that, had she been approaching the matter afresh, she would have been inclined to impose sentences of 5 years' imprisonment in respect of each of the armed robbery and the aggravated burglary and that she would have ordered them to be served cumulatively upon each other. She considered that the sentence of 8 years and 6 months' imprisonment imposed in respect of the aggravated burglary was "very high", particularly having regard for the fact that a sentence of 3 years' imprisonment was imposed in respect of the deprivation of liberty of the young woman, being one of the circumstances of aggravation.
Even allowing for the fact that the terms of imprisonment imposed in these cases preceded the reductions required by the current sentencing laws, they starkly illustrate the manifest inadequacy of the sentence imposed in this, very much more serious, case (which, moreover, involved a very late plea of guilty).
The sexual offences, too, were very serious. As I have earlier said, they followed threatening behaviour and were perpetrated upon a particularly vulnerable woman who must initially have been terrified and then appalled by all that took place. In these circumstances sentences of 2 years and 4 months' imprisonment in respect of the cunnilingus, 4 months' imprisonment in respect of the indecent dealing and 4 years' imprisonment in respect of the penile penetration were all far too low, and outside the range of an acceptable exercise of discretion, even taking into account the required statutory reduction. While it is often said that there is no tariff in respect of sexual offending, many examples could be provided of more severe sentences in respect of similar offences, particularly the penile penetration.
So, by way of illustration, in Steels v The Queen, unreported; CCA SCt of WA; Library No 930306; 27 May 1993, a sentence of 7½ years' imprisonment was upheld in respect of one count of sexual penetration without consent perpetrated upon an intellectually handicapped complainant in circumstances which involved no home invasion (albeit there was, in that case, a significant breach of trust).
Another example is provided by R v Narrier (2000) 111 A Crim R 405. In that case the applicant had pleaded guilty to, amongst other charges, an aggravated burglary and a sexual assault. He waited outside the home of a 30‑year‑old woman until she opened the rear door to let her dog out. He grabbed her by the throat, pulled her into the house and threatened to kill her if she did not keep quiet. He then penetrated her vagina with his penis. After doing so, he apologized for what he had done and left the premises. He had a bad criminal record, contributed to by a difficult history, involving solvent and alcohol abuse. He was sentenced to a term of 4 years' imprisonment for the aggravated burglary and to one of 8 years' imprisonment for the sexual penetration. The total sentence imposed for these, and other, offences was one of 12 years' imprisonment, without eligibility for parole. While an additional order for indefinite imprisonment was set aside on the appeal, the other sentences were acknowledged by the appellant's counsel to have been "well within range", a concession which Pidgeon J described (at [2]) as "properly made".
Allowing for the fact that the cases to which I have referred in this regard also preceded the new sentencing regime, the sentences imposed nevertheless demonstrate the manifest inadequacy of that imposed in this case in respect of the penile penetration.
As to the remaining sentences, it seems to me that, given the seriousness of the offences, the limited mitigation available through the very late plea of guilty and the limited nature of other available mitigating circumstances, they, too, are far too lenient and cannot be allowed to stand.
I would consequently allow the appeal and quash the sentences imposed by the sentencing Judge. Were it not for the provisions of the Sentencing Legislation Amendment and Repeal Act to which I have earlier referred, I would have substituted, for the sentences imposed, sentences of 6 years' imprisonment for the aggravated burglary, 7 years' imprisonment for the sexual penetration by cunnilingus (which seems to me to have been not much less serious than the penile penetration), 2 years' imprisonment for the indecent dealing and 8 years' imprisonment for the penile penetration. Because of the one‑third reduction mandated by the legislative command, those sentences must be reduced to sentences of 4 years' imprisonment, 4 years and 8 months' imprisonment, 1 year and 4 months' imprisonment and 5 years and 4 months' imprisonment respectively. I would also order that the sentences imposed in respect of counts 2, 3 and 4 should be served concurrently with each other and partly concurrently with that imposed in respect of count 1, to the extent that those sentences should be taken to have commenced on 18 September 2004, 8 months after the commencement of the sentence imposed in respect of count 1. That would give rise to a total sentence of 6 years' imprisonment, commencing on 18 September 2004. In my opinion that sufficiently takes account of totality considerations as well as of the "element of double jeopardy" which has been found to exist in the case of Crown appeals: see, for example, R v Allpass (1993) 72 A Crim R 561 at 562 ‑ 563 and Clarke, at 522.

Conclusion

It follows, from what I have said, that I would allow the appeal, set aside the sentences imposed by the sentencing Judge and impose, in lieu, the sentences to which I have referred, as follows:
(a)in respect of count 1, a sentence of 4 years' imprisonment;
(b)in respect of count 2, a sentence of 4 years and 8 months' imprisonment;
(c)in respect of count 3, a sentence of 1 year and 4 months' imprisonment; and
(d)in respect of count 4, a sentence of 5 years and 4 months' imprisonment.
The sentences imposed in respect of counts 2, 3 and 4 would be served concurrently with each other, but partly cumulatively upon that imposed in respect of count 1, in that those sentences should be taken to have commenced on 18 September 2004, 8 months after the commencement of the sentence imposed in respect of count 1. I would leave undisturbed the sentencing Judge's direction that the respondent should be eligible for parole.

ROBERTS-SMITH JA: I have had the benefit of reading in draft the reasons for judgment prepared by Steytler P. I agree with those reasons and have nothing to add.
MCLURE JA: I agree with Steytler P.