The State of Western Australia v Tumata - [2022] WASCA 161

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT :   THE COURT OF APPEAL (WA)
CITATION:   THE STATE OF WESTERN AUSTRALIA -v- TUMATA [2022] WASCA 161
CORAM:   QUINLAN CJ
MAZZA JA
VAUGHAN JA

HEARD:   4 APRIL 2022
DELIVERED          :   6 DECEMBER 2022
FILE NO/S:   CACR 71 of 2021
BETWEEN:   THE STATE OF WESTERN AUSTRALIA
Appellant

AND

GEORGE JOSEPH TUMATA
Respondent

FILE NO/S: CACR 72 of 2021
BETWEEN: THE STATE OF WESTERN AUSTRALIA
Appellant

AND

SHANE RICHARD SHEPPARD
Respondent

FILE NO/S: CACR 73 of 2021
BETWEEN: THE STATE OF WESTERN AUSTRALIA
Appellant

AND

GERMAINE ASHLEY WOODS
Respondent

ON APPEAL FROM:
Jurisdiction              :   DISTRICT COURT OF WESTERN AUSTRALIA
Coram:   HERRON DCJ
File Number            :   IND 1775 of 2018

Catchwords:

Criminal law - State appeal against sentence - Three co‑offenders -Where co–offender and victims were prisoners - Co-offenders convicted of 32 offences, 31 offences and 19 offences respectively - Where offending included aggravated sexual penetration without consent, aggravated indecent assault, demanding property with oral threats, assault causing bodily harm, doing an act with intent to harm and making a threat to harm - Whether total effective sentences of 14 years, 13 years 6 months, and 12 years' imprisonment respectively were manifestly inadequate - Whether the Court should exercise its residual discretion

Legislation:

Criminal Appeals Act 2004 (WA), s 31(4)
Criminal Code (WA), s 304(2), s 317(1), s 324, 326, s 338B, s 397(2)
Sentencing Act 1995 (WA), s 9AA

Result:

Appeals allowed
Respondents resentenced

Category: B

Representation:

CACR 71 of 2021

Counsel:

Appellant	:	Ms A L Forrester SC
Respondent	:	Mr K Burgoyne

Solicitors:

Appellant	:	Director of Public Prosecutions (WA)
Respondent	:	Kevin Burgoyne

CACR 72 of 2021

Counsel:

Appellant	:	Ms A L Forrester SC
Respondent	:	Ms S A Auburn

Solicitors:

Appellant	:	Director of Public Prosecutions (WA)
Respondent	:	Sharon Auburn Barrister

CACR 73 of 2021

Counsel:

Appellant	:	Ms A L Forrester SC
Respondent	:	Mr D N Ryan

Solicitors:

Appellant	:	Director of Public Prosecutions (WA)
Respondent	:	Chelmsford Legal

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

Bugmy v The Queen [2013] HCA 37; (2013) 249 CLR 571
Carr v The State of Western Australia [2006] WASCA 125
Fletcher v The State of Western Australia [2014] WASCA 219
Keating v The State of Western Australia [2007] WASCA 98
McAlpine v The State of Western Australia [2018] WASCA 195
Munda v The State of Western Australia [2013] HCA 38; (2013) 249 CLR 600
Pearce v The Queen (1998) 194 CLR 610
Roffey v The State of Western Australia [2007] WASCA 246
Royer v The State of Western Australia [2009] WASCA 139
The State of Western Australia v Doyle [2017] WASCA 207
The State of Western Australia v Hussian [2020] WASCA 186
The State of Western Australia v TLP [2019] WASCA 66
Ugle v The State of Western Australia [2012] WASCA 104
Wheeler v The State of Western Australia [2008] WASCA 111

QUINLAN CJ:

On 30 April 2017, a young man was remanded in custody at Hakea Prison. He was 22 years of age and had never been in prison before. Very soon after his arrival at the prison (on 2 May 2017) the young man was transferred to a self‑care unit.
From that day, and over the course of the following two weeks, the respondents, George Tumata, Shane Sheppard and Germaine Woods, who were also prisoners at the prison, variously subjected the young man to violence and brutality of the most extreme kind. The respondents, as the learned sentencing judge aptly put it, terrorised their victim. As Mazza and Vaughan JJA have set out in detail in their reasons, the respondents' brutality towards the victim included beating him, kicking him, indecently assaulting him, choking him to the point where he lost consciousness, burning him with boiling water and repeatedly sexually penetrating him without his consent, both with their bodies and with objects (a broom handle and pencil). They humiliated him, demeaned him and threatened to rape his partner.
Mr Tumata was ultimately convicted of 32 offences, including eight counts of aggravated sexual penetration without consent, three counts of aggravated indecent assault, one count of demanding property with oral threats, ten counts of assault occasioning bodily harm, eight counts of doing an act with intent to harm and two counts of threat to harm. While Mr Tumata pleaded guilty to four of the offences, the convictions for the most serious offending, including all of the counts of sexual assault and indecent assault, were entered after trial.
Mr Sheppard was convicted of 31 offences, 30 of which were counts in common with Mr Tumata, including all of the offences of sexual assault and indecent assault. Mr Tumata was convicted of one count of doing an act with intent to harm and one count of threat to harm to which Mr Sheppard was not a party, and Mr Sheppard was convicted of one count of assault occasioning bodily harm to which Mr Tumata was not a party. Again, while Mr Sheppard pleaded guilty to six of the offences, his convictions for all of the counts of sexual assault and indecent assault were entered after trial.
Mr Woods was convicted of 19 offences, all of which were counts in common with Mr Tumata and Mr Sheppard. Mr Woods' convictions included eight counts of aggravated sexual penetration without consent, one count of aggravated indecent assault, one count of demanding property with oral threats, four counts of assault occasioning bodily harm, four counts of doing an act with intent to harm and one count of threat to harm. Mr Woods pleaded not guilty to all of the offences and was convicted after trial.
On 31 May 2021, Herron DCJ sentenced the respondents to terms of imprisonment in relation to all of the offences. After taking into account totality, the learned sentencing judge imposed the following total effective sentences on the respondents:
(a)Mr Tumata was sentenced to a total effective sentence of 14 years' imprisonment;
(b)Mr Sheppard was sentenced to a total effective sentence of 13 years and 6 months' imprisonment; and
(c)Mr Woods was sentenced to a total effective sentence of 12 years' imprisonment.
The individual terms of imprisonment imposed by the learned sentencing judge and the adjustments made by his Honour to reflect considerations of totality are set out by Mazza and Vaughan JJA in their reasons, as are the circumstances of the offending and the personal circumstances of each of the respondents.
The State appeals the total effective sentence imposed on each respondent. The State does not challenge any of the individual sentences imposed by the learned sentencing judge, nor does it allege that his Honour made any express error. The sole ground of appeal in each appeal is that the total effective sentence imposed on each respondent infringed the first limb of the totality principle, in that it failed to adequately reflect the overall criminality of the offending conduct.
I have had the considerable advantage of reading Mazza and Vaughan JJA's reasons in draft. I agree with everything that their Honours have said and agree that the appeals should be allowed.
I would only add the following.
The sheer depravity of the respondents' actions and the unpitying violence meted out on the victim in this case, alone, required that a very significant total sentence of imprisonment be imposed on each of the respondents. While there were differences in their relative culpability (particularly that of Mr Woods), each of the respondents fell to be sentenced for what was a sustained course of extreme and sadistic violence. The calculated and episodic nature of the violence, on a captive victim, made it even more serious.
The effect on the victim has been profound. In addition to his physical injuries – crooked teeth, a broken nose and ongoing pain – he suffers from constant suicidal thoughts and is constantly depressed. His symptoms of anxiety, stress and depression are likely to last for his entire life. As the victim himself put it, he is 'broken'.
To these, already weighty, considerations must be added the significant aggravating factor that the respondents' prolonged and systematic brutalisation of the victim occurred while he was detained in custody by the State. The curtailment of individual liberty by the State is a serious matter that always requires serious justification under the law. Generally speaking, the law only permits persons to be detained in custody as punishment for crimes committed, for the protection of the community or (as in the case of the victim in the present case) as an incident of the judicial process itself.
The community, on whose behalf and for whose benefit prisoners are lawfully detained, are entitled to expect that those prisoners will be treated in a civilised manner and that they will be given the same protection under the law as the rest of the community. Offending such as that in the present case, which takes advantage of the vulnerability brought about by the victim's involuntary detention by the State, therefore offends against the criminal justice system itself. It undermines the good order and discipline of the prison environment and so undermines both the punitive and rehabilitative aims of that environment. It calls for a sentence that sends a clear message that such conduct cannot be tolerated.
None of these considerations were overlooked by the learned sentencing judge. Indeed, his Honour took great care in setting out all relevant sentencing principles and the considerations relevant to the sentences to be imposed on the respondents. Nothing his Honour said in those sentencing remarks reveals any error.
Given his Honour's comprehensive and careful sentencing remarks, it is with some hesitation that I conclude that the total effective sentence imposed on each of the respondents did not adequately reflect the criminality involved in each of their offending.

As Mazza and Vaughan JJA have discussed, previous decisions of this Court dealing with extreme and violent sexual offending, do not provide much assistance. If anything, they simply serve to demonstrate the seemingly limitless ingenuity and variety of human cruelty. Each case depends on its own particular facts and, in the end, whether the total effective sentence in a particular case adequately reflects the criminality involved in the offending is a value judgement to be made in light of all relevant sentencing principles.
After much consideration I have concluded that the total effective sentences imposed by the learned sentencing judge did not adequately reflect the criminality involved in the offending. In my view, having regard to all relevant sentencing considerations, the total effective sentences imposed on the respondents were manifestly inadequate, such as to reveal implied error and to justify this Court's intervention.
As I have said, I agree with Mazza and Vaughan JJA's reasons for that conclusion. For the reasons their Honours have given I would allow the appeals and would substitute for the sentences imposed by the learned sentencing judge:
(a)in relation to Mr Tumata, a total effective sentence of 17 years' imprisonment;
(b)in relation to Mr Sheppard, a total effective sentence of 16 years and 6 months' imprisonment; and
(c)in relation to Mr Woods, a total effective sentence of 14 years and 6 months' imprisonment.
I agree with Mazza and Vaughan JJA as to the structure of those sentences and with the other orders that their Honours propose.

MAZZA & VAUGHAN JJA:

This is a State appeal against sentences imposed upon the respondents in the District Court on 31 May 2021.
By an indictment dated 19 February 2021, the respondents were charged with a total of 39 offences. All of the offences were alleged to have occurred at Hakea Prison in the period between 1 May 2017 and 19 May 2017. At the time, the respondents were prisoners. The victim

in all but one offence was another prisoner, a 22-year-old man whom we will refer to as M.[1]
[1] The other victim was M's partner (count 9).

Mr Tumata was charged with 38 offences. On 21 October 2020, he pleaded guilty to four counts (counts 1, 6, 34 and 35). On 18 March 2021, he was acquitted by a jury on six counts (counts 23, 24, 26, 27, 30 and 33) and convicted of the rest of the charges he faced. Altogether, he was convicted of: eight counts of aggravated sexual penetration without consent, contrary to s 326 of the Criminal Code (the Code) (counts 11 to 14 and 18 to 21); three counts of aggravated indecent assault, contrary to s 324 of the Code (counts 22, 25 and 36); one count of demanding property with oral threats, contrary to s 397(2) of the Code (count 1); 10 counts of assault causing bodily harm, contrary to s 317 of the Code (counts 2, 3, 4, 6, 7, 16, 28, 34, 35 and 38); eight counts of doing an act with intent to harm, contrary to s 304(2) of the Code (counts 5, 8, 10, 15, 17, 29, 31 and 32); and two counts of making a threat to harm, contrary to s 338B of the Code (counts 9 and 37). Mr Tumata was therefore convicted of 32 offences in total. To be clear, Mr Tumata was convicted after trial of all of the sexual offences (that is, counts 11 to 14, 18 to 22, 25 and 36).
Mr Sheppard was charged with 36 offences. On 21 October 2020, he pleaded guilty to six offences (counts 1, 4, 6, 7, 16 and 35). On 18 March 2021, Mr Sheppard was acquitted of five counts (counts 23, 24, 26, 27 and 30) and convicted of the rest of the charges he faced. Altogether, he was convicted of eight counts of aggravated sexual penetration without consent (counts 11 to 14 and 18 to 21), three counts of aggravated indecent assault (counts 22, 25 and 36), one count of demanding property with oral threats (count 1), 11 counts of assault causing bodily harm (counts 2, 3, 4, 6, 7, 16, 28, 34, 35, 38 and 39), seven counts of doing an act with intent to harm (counts 5, 8, 10, 15, 17, 29 and 32) and one count of making a threat to harm (count 9). Mr Sheppard was therefore convicted of 31 offences in total. Mr Sheppard was convicted after trial of the same sexual offences committed by Mr Tumata.
Mr Woods was charged with 22 offences. He did not plead guilty to any offence. On 18 March 2021, he was acquitted by the jury of three counts (counts 24, 30 and 33). Mr Woods was convicted of the rest of the charges, being eight counts of aggravated sexual penetration without consent (counts 11 to 14 and counts 18 to 21), one count of aggravated indecent assault (count 22), one count of demanding property with oral threats (count 1), four counts of assault causing bodily harm (counts 2, 4, 7 and 28), four counts of doing an act with intent to harm (counts 5, 8, 10 and 29) and one count of making a threat to harm (count 9). Mr Woods was therefore convicted of 19 offences. Accordingly, Mr Woods was convicted of the same counts of aggravated sexual penetration without consent as Mr Tumata and Mr Sheppard. Mr Woods was also convicted of one of the counts of aggravated indecent assault of which Mr Tumata and Mr Sheppard were convicted.
The respondents were sentenced by Herron DCJ on 31 May 2021.
Mr Tumata was sentenced to a total effective sentence of 14 years' imprisonment, backdated to 14 November 2019. The details of the individual sentences are set out in the table below:

Count	Charge	Criminal Code Section	Maximum Penalty	Sentence
1	Demand property with oral threats	397(2)	14 years' imprisonment	2 years
2	Assault causing bodily harm	317(1)	5 years' imprisonment	10 months
3	Assault causing bodily harm	317(1)	5 years' imprisonment	14 months
4	Assault causing bodily harm	317(1)	5 years' imprisonment	16 months
5	Act with intent to harm	304(2)	20 years' imprisonment	17 months
6	Assault causing bodily harm	317(1)	5 years' imprisonment	14 months
7	Assault causing bodily harm	317(1)	5 years' imprisonment	10 months
8	Act with intent to harm	304(2)	20 years' imprisonment	15 months
9	Threat to harm	338B	7 years' imprisonment	15 months
10	Act with intent to harm	304(2)	20 years' imprisonment	3 years 6 months
11	Aggravated sexual penetration without consent	326	20 years' imprisonment	10 years
12	Aggravated sexual penetration without consent	326	20 years' imprisonment	8 years 6 months
13	Aggravated sexual penetration without consent	326	20 years' imprisonment	8 years 6 months
14	Aggravated sexual penetration without consent	326	20 years' imprisonment	8 years 6 months
15	Act with intent to harm	304(2)	20 years' imprisonment	15 months
16	Assault causing bodily harm	317(1)	5 years' imprisonment	13 months
17	Act with intent to harm	304(2)	20 years' imprisonment	15 months
18	Aggravated sexual penetration without consent	326	20 years' imprisonment	8 years 6 months
19	Aggravated sexual penetration without consent	326	20 years' imprisonment	8 years 6 months
20	Aggravated sexual penetration without consent	326	20 years' imprisonment	5 years
21	Aggravated sexual penetration without consent	326	20 years' imprisonment	4 years (reduced from 5 years 6 months for totality)
22	Aggravated indecent assault	324	7 years' imprisonment	18 months
25	Aggravated indecent assault	324	7 years' imprisonment	18 months
28	Assault causing bodily harm	317(1)	5 years' imprisonment	12 months
29	Act with intent to harm	304(2)	20 years' imprisonment	17 months
31	Act with intent to harm	304(2)	20 years' imprisonment	20 months
32	Act with intent to harm	304(2)	20 years' imprisonment	12 months
34	Assault causing bodily harm	317(1)	5 years' imprisonment	15 months
35	Assault causing bodily harm	317(1)	5 years' imprisonment	14 months
36	Aggravated indecent assault	324	7 years' imprisonment	16 months
37	Threat to harm	338B	7 years' imprisonment	10 months
38	Assault causing bodily harm	317(1)	5 years' imprisonment	14 months

His Honour ordered that the sentence of 5 years 6 months' imprisonment imposed on count 21 be reduced to 4 years and be served cumulatively on the sentence of 10 years' imprisonment imposed on count 11. All other sentences were to be served concurrently. A parole eligibility order was made.
Mr Sheppard was sentenced to a total effective sentence of 13 years 6 months' imprisonment, backdated to 21 September 2020. The details of the individual sentences imposed upon him are set out in the table below:

Count	Charge	Criminal Code Section	Maximum Penalty	Sentence
1	Demand property with oral threats	397(2)	14 years' imprisonment	2 years
2	Assault causing bodily harm	317(1)	5 years' imprisonment	10 months
3	Assault causing bodily harm	317(1)	5 years' imprisonment	14 months
4	Assault causing bodily harm	317(1)	5 years' imprisonment	14 months
5	Act with intent to harm	304(2)	20 years' imprisonment	17 months
6	Assault causing bodily harm	317(1)	5 years' imprisonment	14 months
7	Assault causing bodily harm	317(1)	5 years' imprisonment	9 months
8	Act with intent to harm	304(2)	20 years' imprisonment	15 months
9	Threat to harm	338B	7 years' imprisonment	15 months
10	Act with intent to harm	304(2)	20 years' imprisonment	4 years
11	Aggravated sexual penetration without consent	326	20 years' imprisonment	10 years
12	Aggravated sexual penetration without consent	326	20 years' imprisonment	8 years 6 months
13	Aggravated sexual penetration without consent	326	20 years' imprisonment	8 years 6 months
14	Aggravated sexual penetration without consent	326	20 years' imprisonment	8 years 6 months
15	Act with intent to harm	304(2)	20 years' imprisonment	15 months
16	Assault causing bodily harm	317(1)	5 years' imprisonment	12 months
17	Act with intent to harm	304(2)	20 years' imprisonment	15 months
18	Aggravated sexual penetration without consent	326	20 years' imprisonment	8 years 6 months
19	Aggravated sexual penetration without consent	326	20 years' imprisonment	8 years 6 months
20	Aggravated sexual penetration without consent	326	20 years' imprisonment	5 years
21	Aggravated sexual penetration without consent	326	20 years' imprisonment	3 years 6 months (reduced from 5 years 6 months for totality)
22	Aggravated indecent assault	324	7 years' imprisonment	18 months
25	Aggravated indecent assault	324	7 years' imprisonment	18 months
28	Assault causing bodily harm	317(1)	5 years' imprisonment	13 months
29	Act with intent to harm	304(2)	20 years' imprisonment	15 months
32	Act with intent to harm	304(2)	20 years' imprisonment	15 months
34	Assault causing bodily harm	317(1)	5 years' imprisonment	17 months
35	Assault causing bodily harm	317(1)	5 years' imprisonment	14 months
36	Aggravated indecent assault	324	7 years' imprisonment	16 months
38	Assault causing bodily harm	317(1)	5 years' imprisonment	14 months
39	Assault causing bodily harm	317(1)	5 years' imprisonment	14 months

His Honour ordered that the sentence of 5 years 6 months' imprisonment imposed on count 21 be reduced to 3 years and 6 months for totality and that this sentence be served cumulatively on the sentence of 10 years' imprisonment on count 11. All other sentences were ordered to be served concurrently. A parole eligibility order was made.
Mr Woods was sentenced to a total effective sentence of 12 years' imprisonment, backdated to 4 December 2020. The individual sentences that were imposed are set out in the table below:

Count	Charge	Criminal Code Section	Maximum Penalty	Sentence
1	Demand property with oral threats	397(2)	14 years' imprisonment	2 years
2	Assault causing bodily harm	317(1)	5 years' imprisonment	9 months
4	Assault causing bodily harm	317(1)	5 years' imprisonment	16 months
5	Act with intent to harm	304(2)	20 years' imprisonment	15 months
7	Assault causing bodily harm	317(1)	5 years' imprisonment	10 months
8	Act with intent to harm	304(2)	20 years' imprisonment	15 months
9	Threat to harm	338B	7 years' imprisonment	15 months
10	Act with intent to harm	304(2)	20 years' imprisonment	3 years 6 months
11	Aggravated sexual penetration without consent	326	20 years' imprisonment	10 years
12	Aggravated sexual penetration without consent	326	20 years' imprisonment	8 years 6 months
13	Aggravated sexual penetration without consent	326	20 years' imprisonment	8 years 6 months
14	Aggravated sexual penetration without consent	326	20 years' imprisonment	8 years 6 months
18	Aggravated sexual penetration without consent	326	20 years' imprisonment	8 years 6 months
19	Aggravated sexual penetration without consent	326	20 years' imprisonment	8 years 6 months
20	Aggravated sexual penetration without consent	326	20 years' imprisonment	5 years
21	Aggravated sexual penetration without consent	326	20 years' imprisonment	5 years 6 months
22	Aggravated indecent assault	324	7 years' imprisonment	18 months
28	Assault causing bodily harm	317(1)	5 years' imprisonment	12 months
29	Act with intent to harm	304(2)	20 years' imprisonment	17 months

His Honour ordered that the sentence of 2 years' imprisonment on count 1 be served cumulatively on the sentence of 10 years' imprisonment on count 11. All other sentences were ordered to be served concurrently. A parole eligibility order was made.

The ground of appeal

In each appeal, the appellant does not challenge any of the individual sentences that were imposed. The only ground of appeal relied upon alleges that, in each case, the total effective sentence imposed infringes the first limb of the totality principle. On 16 August 2021, Buss P granted leave to appeal in each appeal on this ground.

The facts

There is no challenge to his Honour's findings of fact, which may be summarised as follows.
On 30 April 2017, M was remanded in custody to Hakea Prison. On 2 May 2017, he was transferred to a self‑care unit within that prison. The respondents were also housed in the self‑care unit.
As to count 1, on 2 May 2017, the respondents together entered M's cell. Mr Tumata and Mr Sheppard each alleged that M was an informant. Mr Sheppard told M that he had robbed 'the wrong people'. In the presence of Mr Tumata and Mr Woods, Mr Sheppard told M that he would have to pay a fine of $8,000, which would increase by $2,000 per week until it was paid, and that he would kill M if the fine was not paid. Mr Sheppard told M that he needed to get his family to pay the fine, which M refused to do. In the presence of Mr Tumata and Mr Woods, Mr Sheppard then told M that he was a dead man and that he was going to die in prison.
His Honour found that Mr Tumata and Mr Sheppard were the principal offenders in respect of count 1. Alternatively, Mr Tumata aided and encouraged Mr Sheppard in the making of the threats and demands for money from M. Although Mr Woods did not personally make any threats or act towards M in an overtly threatening manner, he was criminally liable because, by his presence, he aided, encouraged and supported his co‑offenders.[2]
[2] ts 1213.
After the commission of count 1, on an almost daily basis, the respondents generally together, sometimes two together and sometimes individually engaged in an ongoing and escalating course of conduct towards M involving threats, intimidation and violence for the purpose of forcing M to make payment of the money that had been demanded. The violence included sexual violence towards M. M feared for his life, health and safety. The offending took place over a period of about two weeks and only ceased when M suffered a breakdown and finally reported what had occurred, resulting in M's immediate transfer to the prison's crisis care unit.
Count 2 occurred later on 2 May 2017. Having made the threats to M, the respondents again approached him in his cell. The threats were repeated. Mr Sheppard told M that, if he (M) did not pay, he (Mr Sheppard) would kill him (M). Mr Sheppard, in the presence of Mr Tumata and Mr Woods, struck M three times on his left leg and then about three times on his left arm with a closed fist, causing M extreme pain. As a result of these blows, M suffered bruising.[3]
[3] ts 1214.
Counts 3 to 6 occurred on 3 May 2017. As to count 3, Mr Tumata and Mr Sheppard (but not Mr Woods) entered M's cell. Mr Tumata punched M in the face multiple times, causing M to suffer a split lip. Mr Sheppard was present at all times during the assault.[4]
[4] ts 1214 - 1215.
As to count 4, M was directed to enter Mr Sheppard's cell. M only did so out of fear, feeling that he had no choice but to comply with the direction. All of the respondents were present in Mr Sheppard's cell. Mr Sheppard again demanded money from M. M replied that the money was coming. Mr Tumata, who, along with Mr Woods, was directly behind M, punched M to the left and right side of his ribs, causing M to cover his rib area with his arms in an effort to protect himself. Mr Tumata then told M to put his hands on his head and that if he did not, he would break M's jaw. M then put his hands on his head, after which Mr Tumata and Mr Woods punched M with multiple blows to the area of his ribs. M dropped to the ground in an effort to cover himself. He was in pain and unable to breathe. Mr Sheppard then pulled M from underneath a bench. As he did so, all of the respondents struck M. After this, Mr Tumata again told M to put his hands on his head, which he did. Mr Tumata then hit M twice more to the ribs. As a result of the assault by the respondents, M suffered pain and bruising to his rib area and had difficulty breathing.[5]
[5] ts 1215.
Count 5 occurred immediately after the offending the subject of count 4.[6] After M was attacked in the manner described in the previous paragraph, Mr Tumata and Mr Sheppard each punched M's testicles. His Honour found that M was punched five or six times to his testicles. After punching M, Mr Tumata then grabbed one of M's testicles and squeezed it with sufficient force that M thought that his testicle would 'pop'. While Mr Woods did not punch or squeeze M's testicles, he was present throughout the attack. His Honour found that M suffered extreme pain and discomfort, which lasted for about an hour after the commission of count 5.[7]
[6] In his sentencing remarks, his Honour said that the offending the subject of count 5 occurred at the same time as the offending the subject of count 3. It appears from the context of the sentencing remarks that his Honour meant to say that count 5 occurred at the same time as the offending the subject of count 4.
[7] ts 1215 - 1216.
Count 6 occurred later on 3 May 2017. On this occasion, M was walking laps around the unit at Hakea Prison when he was directed to go into Mr Sheppard's cell. Mr Sheppard demanded money, stating that the deadline was over. Mr Tumata again told M to put his hands on his head or he would break his jaw. M complied. Mr Tumata then punched M multiple times to his ribs. Mr Sheppard grabbed M's hands and pulled him towards the bed. As he did so, Mr Tumata continued to strike M to the area of his ribs. Mr Woods was not involved in this offence. As a result of this offending, M suffered pain and swelling to his ribs and urinated blood for about a week after the incident.[8]
[8] ts 1216.
Counts 7 and 8 occurred on 4 May 2017. That morning, Mr Tumata and Mr Sheppard came into M's cell and again demanded money. M said he would get it.
As to count 7, after lunch the respondents again entered M's cell while he was sitting on his bed in pain and crying. The respondents mocked him. Mr Sheppard then punched M to his left leg and arm in the same areas that he had punched him previously, causing pain and bruising.[9]
[9] ts 1216.
Count 8 occurred immediately after count 7. While M was sitting on his bed, Mr Woods kicked him in the testicles. M described the kick as a 'hard push kick' which caused him immediate pain, difficulty in breathing and a sick feeling. The pain lasted for up to an hour. His Honour found that Mr Woods was the principal offender in count 8, while Mr Tumata and Mr Sheppard, by their actions and presence, aided and encouraged Mr Woods in the commission of the offence.[10]
[10] ts 1216 - 1217.
The offending the subject of counts 9 to 14 occurred as part of one incident in M's cell some time during the first week that M was in the self‑care unit. Upon the respondents entering M's cell together, Mr Tumata told M that he was going to rape M's partner (count 9). M became angry and punched Mr Woods in the face and then Mr Tumata on the chin. Mr Sheppard then wrapped an arm around M's neck from behind him, squeezed tightly and choked him to the point that he lost consciousness (count 10). In relation to count 9, Mr Tumata was the principal offender, while Mr Sheppard and Mr Woods aided and encouraged him by their presence. In relation to count 10, Mr Sheppard was the principal offender and Mr Tumata and Mr Woods were aiders.[11]
[11] ts 1217.
M was then forced facedown onto his bed, where he was held down by Mr Tumata and Mr Woods, one of whom pulled M's pants down. Mr Sheppard then inserted a broom handle into M's anus five to 10 times, causing bleeding from the anus (count 11). Each of the respondents then penetrated M's anus with his penis while the other respondents held M down. First was Mr Woods (count 12), then Mr Tumata (count 13) and, finally, Mr Sheppard (count 14). While M was being held down and sexually penetrated, he was struggling, yelling and screaming. He was told to 'shut the fuck up'. The pain inflicted on M as a result of being sexually penetrated with the broom handle was excruciating. He felt his anus tearing and splitting. At one point, Mr Woods commented, 'Look at all of that blood'. There was blood on the broom handle and on M's sheets and clothing.
Because M was embarrassed and ashamed of what had happened, he did not report the incident to anyone. Rather, he cleaned the blood from the floor and the broom handle and changed his underclothes and sheets. He described what happened to him as crippling his manliness. M suffered extreme pain afterwards and was unable to go to the toilet.[12]
[12] ts 1217 - 1218.
In relation to counts 11 to 14, his Honour found that the respondents were joint principal offenders because, as one performed a physical act of sexual penetration without consent, the others forcibly held down and restrained M to enable the act of sexual penetration to occur. Alternatively, in relation to count 11, Mr Sheppard was the principal offender and Mr Tumata and Mr Woods aided him by holding down and restraining M to enable Mr Sheppard to insert the broom handle into M's anus.[13]
[13] ts 1219.
We now turn to counts 15 to 19. These offences occurred in the one incident in Mr Sheppard's cell a day or two after the offences the subject of counts 9 to 14. M was still in pain and recovering from the sexual penetrations.
On this occasion, M was forced into Mr Sheppard's cell and told by Mr Tumata to kiss Mr Sheppard's feet. Initially, M was reluctant to do so. Mr Tumata then produced a small hammer, measuring 10 ‑ 20 cm in length, and struck M on his left knee with it, causing M to suffer excruciating pain (count 15). As M went to kiss Mr Sheppard's feet, Mr Sheppard kicked M in the face, causing M to suffer a blood nose and a split lip (count 16). Mr Tumata then struck M's right knee with the hammer (count 17). As a consequence of counts 15 and 17, M suffered bruising and swelling to both knees for days and pain and discomfort for many months afterwards.
At this point, Mr Woods came into the cell. Mr Tumata and Mr Woods each held M's legs while Mr Sheppard, who was behind M, held a pillow over his head. M's pants were then pulled down. Mr Tumata then spat onto M's anus and rubbed saliva into it. He said, 'I get to go first this time. I like it tight'. Mr Tumata then forcefully inserted his penis into M's anus (count 18). Mr Woods then penetrated M's anus with his penis, after which he slapped M's testicles (count 19). While counts 18 and 19 were being committed, M was being held down by the other respondents. Both Mr Tumata and Mr Woods ejaculated into M's anus.[14]
[14] ts 1219 - 1220.
The offending the subject of counts 20 and 21 occurred on another day in M's cell when all three respondents were present. As to count 20, Mr Tumata and Mr Sheppard entered the cell and directed M to 'moon' Mr Woods. When M did as he was told, Mr Woods, who was wearing a glove, inserted his index finger into M's anus. Mr Woods then pulled the glove off and slapped M in the face with it, an act which the sentencing judge found was likely to seriously and substantially humiliate M.[15]
[15] ts 1220 - 1221.
As to count 21, the respondents held M down and held his legs over his head. Mr Tumata then inserted a pencil through M's pants and underwear into his anus. The penetration of M's anus with the pencil occurred very quickly and was very painful. Afterwards, Mr Tumata laughed at M. At the time, M was still recovering from the injuries sustained in the earlier acts of sexual penetration.[16]
[16] ts 1221.
Count 22 concerned all three respondents. Mr Tumata and Mr Sheppard demanded that M kiss Mr Woods' 'bum'. He refused to do so and they punched him in the ribs. M then said he would do as they asked. Mr Woods pulled down his pants and M kissed one of his buttocks. Mr Sheppard said, 'That was not kissing his bum'. Mr Tumata and Mr Sheppard then grabbed M's shoulders and head and forced his face into Mr Woods' buttocks so that his nose was next to Mr Woods' anus and testicles. M had difficulty breathing. His face and lips were touching Mr Woods' testicles.[17]
[17] ts 1221.
Count 25 occurred in M's cell one morning and involved Mr Tumata and Mr Sheppard. M awoke to find Mr Tumata sitting on his head, his exposed backside on his face. The sentencing judge accepted M's evidence that he had 'shit and stuff' on his face and that Mr Tumata's testicles were hitting his face. Mr Tumata was laughing and told M that he 'hadn't wiped [his] arse' and that M was going to get hepatitis. Mr Tumata held this position over M's face for about two or three seconds. The sentencing judge found that Mr Tumata was the principal offender and that Mr Sheppard aided or encouraged Mr Tumata to commit the offence.[18]
[18] ts 1221 - 1222.
Counts 28 and 29 occurred in Mr Sheppard's cell in the presence of all three respondents. Mr Sheppard kicked M to the chin, causing a cut which bled and was painful for a couple of days. After Mr Sheppard kicked M, Mr Tumata and Mr Woods kicked M in the testicles. M described the kick by Mr Tumata as a hard stomp kick with a flat foot which caused extreme pain. M felt like his testicles were going to pop. Mr Woods' kick was not as hard as the kick by Mr Tumata, but it nevertheless hurt M. His Honour found that M felt the immediate pain of the assaults for between half an hour to an hour, and that M's testicles were tender and bruised for days afterwards.[19]
[19] ts 1222.
After counts 28 and 29, Mr Woods was moved from the self‑care unit to another unit at Hakea Prison. Mr Woods was not involved in any further offending against M.[20]
[20] ts 1222.
Count 31 occurred against the background that, whenever M used the communal phones to speak to his family or his partner, at least one of the respondents was always present so that M was unable to speak privately. This conduct formed part of the ongoing course of intimidation towards M.
Count 31 occurred during a recorded telephone call between M and his partner on 15 May 2017. Mr Tumata spoke to M's partner in a sexually provocative and highly offensive way. He also spoke to her about having a 'gangbang' and told her that he was 'gangbanging' M. When M tried to grab the phone, Mr Tumata wrapped the metal cord around his neck and began to strangle him with it. M could not breathe and suffered pain, although he did not lose consciousness. The act of wrapping the cord tightly around M's neck created a potential risk of damage to the neck and endangered M's life or health.[21]
[21] ts 1222 - 1223.
Count 32 occurred in Mr Sheppard's cell in the presence of both Mr Tumata and Mr Sheppard. Mr Sheppard spat in M's face, his spittle landing in M's eye. M then wiped the saliva from his eye. As explained by Dr Smith, a prosecution witness, the act of spitting in someone's eye is likely to endanger their life, health or safety because of the risk of infection. The sentencing judge found that Mr Sheppard was the principal offender in relation to count 32 and that Mr Tumata aided Mr Sheppard by his presence and encouragement.
Count 34 occurred on 15 May 2017 and involved Mr Tumata and Mr Sheppard. After M had a shower and walked out of the cubicle, Mr Tumata placed a melting plastic spoon on M's right shoulder which stuck to his skin and left a burn to his shoulder that was roughly the size of a 50‑cent coin. M had to pull the spoon off his skin. The burn caused M extreme pain and injury to his right shoulder, which took some time to heal. M heard Mr Sheppard laughing and saying to Mr Tumata, 'George, you dumb cunt. I didn't think you were going to do it'. Mr Tumata was sentenced on the basis that he was the principal offender, while Mr Sheppard was sentenced on the basis that he aided or encouraged Mr Tumata to commit the offence.[22]
[22] ts 1223 - 1224.
Count 35 was committed by Mr Tumata and Mr Sheppard. On an unknown date between 15 and 18 May 2017, M walked past Mr Tumata and Mr Sheppard while they were playing pool. Mr Sheppard threw a pool ball at M. The ball hit M's foot, causing him pain. Later that day, Mr Tumata and Mr Sheppard entered M's cell while he was lying on his bed. Mr Sheppard was carrying a pillowcase containing pool balls, which he used to hit M five or six times to his legs and upper chest, causing M to suffer bruising and pain.
Count 36 occurred during M's second week in the self‑care unit. By this time, he had moved into a new cell that he shared with another prisoner. Mr Tumata and Mr Sheppard entered the cell. Mr Tumata put his hand into M's pants, beneath his underwear, brushing his penis and testicles. The sentencing judge observed that this act clearly demonstrated the degree to which M had been intimidated and dominated and the extent of his fear and inability to defend himself or prevent further physical and sexual assaults upon him. As his Honour put it, 'The offending was designed to further humiliate and belittle [M] and demonstrate the power [Mr Tumata and Mr Sheppard] had over him'.[23]
[23] ts 1224.
Counts 37 to 39 occurred on 17 May 2017, M's last day in the self‑care unit. As to count 37, Mr Tumata entered M's cell and threatened to burn him with hot water mixed with honey and sugar so that the mixture would stick to his skin and melt off. Mr Tumata said to M that he had seen it done to someone else.[24]
[24] ts 1224 - 1225.

Later that day, Mr Tumata and Mr Sheppard committed count 38. The two men entered M's cell. Mr Sheppard held a bowl of boiling water. He began flicking the water at M, burning him through his jumper and on his face. The sentencing judge accepted M's evidence that the boiling water hurt him and that he 'started freaking out'.[25] The sentencing judge found that, with respect to count 38, Mr Sheppard was the principal offender and Mr Tumata aided or encouraged him to commit the offence.
[25] ts 1225.
Finally, we turn to the facts of count 39. After the events which constitute count 38, M ran off to the shower to wash the boiling water off him. As he was showering, Mr Sheppard leant over the top of the shower cubicle and poured the rest of the boiling water onto mostly his feet, injuring them.[26] Only Mr Sheppard was charged in respect of count 39.
[26] ts 1225.

The victim

At the time of the offending M was 22 years old. He had never been to prison before. The sentencing judge observed that the attacks upon M generally occurred inside a prison cell, away from the sight of prison officers and other prisoners. Generally, one of the respondents kept a lookout to ensure that they were not disturbed. Essentially, M was trapped in his cell.
On 12 May 2017, M collapsed and was taken to the medical centre at Hakea Prison, suffering from injuries that were inflicted by the respondents. He was returned to his cell. It appears that, until the cessation of the offending on 17 May 2017, prison officers and authorities were unaware of the ongoing attacks upon M, a situation the sentencing judge described as 'incomprehensible'.[27]
[27] ts 1214, 1228.
The sentencing judge was provided with a succinct victim impact statement written by M. In the statement, M sets out the physical injuries he suffered and their longer‑term effects upon him. He feels that his employment prospects have been diminished because of his missing and crooked teeth, broken nose and scars. He sometimes experiences pain as a result of the anal penetrations. Significantly, the offending has had serious adverse psychological effects upon M. He suffers constant panic attacks and nightmares. He experiences constant thoughts of suicide. He fears being attacked or that someone in his family will be attacked. He barely goes outside and is too scared to socialise or trust anyone. His work performance has deteriorated. M stated that he relies on alcohol to stop the negative thoughts he has. His alcohol consumption has become problematic. He summed up his psychological state as 'just honestly broken'. The sentencing judge found that, as a result of the attacks, M 'will suffer lifelong symptoms including symptoms of anxiety, stress and depression'.[28]
[28] ts 1227.

Mr Tumata's personal circumstances

Mr Tumata was 24 years old at the time of the offending and 28 when he was sentenced.
His parents separated when he was 4 years old, and he was brought up by his mother until about the age of 12. By that time, Mr Tumata was using cannabis and alcohol and, shortly after, began using methylamphetamine. Mr Tumata's mother was unable to control his behaviour and he was sent to New Zealand to live with a relative. Mr Tumata later returned to Australia to live with his father, from whom he is now estranged.
Mr Tumata has limited literacy and numeracy skills. Apart from working as a labourer when he was about 17, he has no history of paid employment. When in the community, Mr Tumata has regularly used methylamphetamine and consumed alcohol excessively.
Apart from a period of six months, Mr Tumata has been in prison since the age of 20. He has a lengthy criminal history and an appalling traffic record. In 2013, he was sentenced by the Supreme Court to 2 years 4 months' imprisonment for an offence of aggravated burglary. In 2016, he was sentenced by the Armadale Magistrates Court to various terms of imprisonment for offences of endangering the life, health or safety of a person, possessing stolen or unlawfully obtained property, stealing a motor vehicle, driving under suspension and reckless driving. In 2017, in the Perth Magistrates Court, he was sentenced to 2 years 8 months' imprisonment for a number of driving offences, including failing to stop in circumstances of aggravation, reckless driving and aggravated reckless driving in the course of a pursuit. Mr Tumata was on remand for these offences at the time of the offending against M.
In 2018, while Mr Tumata was in custody, he completed a Pathways program to address his illicit drug use and offending behaviour. The completion report was positive. The sentencing judge received a pre‑sentence report in respect of Mr Tumata. The author of the report stated that Mr Tumata presented as institutionalised. The report author referred to a psychological report prepared by Ms Cinzia Zuin, dated 15 December 2015, which refers to Mr Tumata having low self‑esteem, poor self‑worth, a sense of inadequacy and feelings of abandonment and rejection from his family.
The pre‑sentence report author noted that, upon release into the community, Mr Tumata would require intensive supervision and assistance.

Mr Sheppard's personal circumstances

Mr Sheppard was 23 years of age at the time of the offending and 27 when he was sentenced. He was born in Perth and raised mainly by his mother and maternal grandmother. Mr Sheppard described a positive, stable and prosocial upbringing until the deaths of his mother and grandmother when he was aged 15 and 16, respectively. Mr Sheppard told the author of the pre‑sentence report that his offending started after his mother and grandmother died. At this time, he became homeless and struggled to deal with the grief caused by their deaths. He began associating with negative family members who were involved in criminal activity. He also started using methylamphetamine.
Mr Sheppard left school after completing year 10. He has no real work history, apart from a short period unloading sea containers.
Since becoming an adult, Mr Sheppard has accumulated a lengthy criminal history, including for aggravated burglary, various offences of dishonesty and a substantial number of driving offences. Significantly, on 17 September 2016, Mr Sheppard committed various offences of violence and stealing for which he was dealt with in the District Court. Mr Sheppard was on remand for these offences at the time he committed the offending against M. Ultimately, on 27 February 2018, Mr Sheppard was convicted of the 2016 offences and sentenced to 4 years' immediate imprisonment, backdated to commence on 21 September 2016. The offences comprised one count each of aggravated home burglary, assault causing bodily harm and stealing a motor vehicle, as well as two counts of deprivation of liberty. The circumstances of this offending bears some similarity to the circumstances of the offending against M, in that it involved intimidation and the assault of victims.
Mr Sheppard served the full sentence of 4 years' immediate imprisonment that was imposed. Thus, prior to being sentenced on 31 May 2021, Mr Sheppard had been in prison for approximately 4 years and 8 months. In all, and taking account of his criminal history in the Children's Court, Mr Sheppard has spent much of his late teens and early to mid‑twenties in gaol. The offences Mr Sheppard committed in September 2016 occurred within weeks of being released from an earlier term of imprisonment.
The sentencing judge had regard to a number of reports which had been prepared in respect of Mr Sheppard. His Honour noted that Mr Sheppard demonstrated limited empathy for M and tended to blame him for what had occurred. Moreover, Mr Sheppard minimised his actions and failed to accept responsibility for his behaviour. The sentencing judge noted a report based on interviews with Mr Sheppard which concluded that he posed an increased risk of reoffending in a violent way because he was unable to control his emotions. His Honour noted that the report author concluded that Mr Sheppard suffered from impaired thinking and a lack of insight into the seriousness of his offending. The report author also thought that Mr Sheppard suffered from grief issues relating to the deaths of his mother and grandmother and needed counselling to deal with these issues.[29]
[29] ts 1230 - 1232.

Mr Woods' personal circumstances

Mr Woods was aged 26 years old at the time of the offending and 30 when he was sentenced.
Mr Woods' parents separated when he was about 2 years old. After the separation, Mr Woods moved to Geraldton with his mother and siblings. His life in Geraldton was positive. Eventually, Mr Woods moved to Perth, where he lived briefly with his grandmother. He then went to live with his father and was exposed to domestic violence and substance abuse. Mr Woods' father introduced him to methylamphetamine and used Mr Woods as a lookout to evade police. Eventually, Mr Woods' father was imprisoned for serious offending. At the time he was sentenced, Mr Woods' father and four of his brothers were serving terms of imprisonment.
Mr Woods left school during year 10. He has never had paid employment outside of the prison system.
Mr Woods has been in a long‑term relationship with his partner. Together, they have two children.
Mr Woods has a significant prior criminal history. In April 2010, he was convicted in the District Court of aggravated armed robbery and was sentenced to 2 years' imprisonment, conditionally suspended for 2 years. Mr Woods breached the order and was fined.
On 1 December 2017, Mr Woods was sentenced by the District Court to 15 months' imprisonment for an offence of aggravated burglary. On the same day, in the Perth Magistrates Court, he was sentenced to 8 months' imprisonment for an offence of burglary, 3 months' imprisonment for an aggravated offence of failing to stop when called upon, and 6 months' imprisonment for reckless driving to escape a pursuit. The sentences imposed were ordered to be served concurrently with each other. On 4 December 2017, Mr Woods was sentenced to partially‑suspended terms of imprisonment for offences of stealing a motor vehicle and common assault. In January 2020, Mr Woods was sentenced by the District Court to 2 years' imprisonment for stealing a motor vehicle. It appears from his criminal history that, at the time of the offending against M, he was on remand for a number of the offences for which he was ultimately dealt with in December 2017.
The author of the pre‑sentence report that was provided to the sentencing judge considered that Mr Woods showed some insight into the risk of further offending. However, he lacked the skills to make positive choices and would remain at risk of reoffending unless he received and benefitted from counselling and programs to teach him life skills.

The sentencing remarks

His Honour's sentencing remarks included the following:
(a)Mr Sheppard was the initial instigator of the extortion of M. Mr Tumata willingly and enthusiastically participated in the offending. Mr Woods was less involved in the initial extortion, but thereafter was a willing participant of most of the offending until he left the self‑care block.[30]
(b)After the initial extortion, the three respondents, or sometimes as a pair or individually, engaged in a concerted, persistent and ongoing course of conduct against M over an extended period of about two weeks. They subjected M to increasingly violent physical and sexual attacks to enforce their demand for money.[31]
(c)Mr Tumata and Mr Sheppard were physically powerful men, and although M is tall, he was helpless and defenceless. M was understandably extremely frightened and scared of the three respondents, who terrorised him.[32]
(d)M felt unable to escape or seek assistance. He felt that he could not go to prison officers, in part because of the respondents' threats that they could get him even in protective custody. As no action was taken to stop the attacks, M thought the prison officers knew what was happening. He did not believe that the prison officers could protect him from the respondents.[33]
(e)The attacks on M were designed to intimidate and frighten M. The respondents attacked M's personal dignity and caused him to suffer significant embarrassment. The sexual offences, especially, were designed to cower, humiliate and demean M. The offending was designed to, and did in fact, break M for the purpose of forcing him to pay money when there was no legitimate basis for the demand.[34]
(f)The respondents' domination and control over M extended to his communications with his family.[35] In addition to the threats to harm M himself, threats were made to sexually assault M's partner.[36]
(g)The attacks upon M generally occurred inside a prison cell away from the sight of prison guards and other prisoners, with one of the respondents acting as a lookout.[37]
[30] ts 1226.
[31] ts 1226.
[32] ts 1226.
[33] ts 1226 - 1227.
[34] ts 1227.
[35] ts 1227.
[36] ts 1227.
[37] ts 1227.
In respect of each of the respondents, his Honour identified personal and general deterrence as important sentencing considerations. With respect to general deterrence, his Honour said that the sentences he imposed must send a message to the prison population that this type of offending would not be tolerated, and that severe penalties would be imposed if it occurred. The necessity of giving effect to general deterrence meant that, in each case, less weight could be given to personal mitigating factors.
In respect of Mr Tumata and Mr Sheppard, his Honour noted that they pleaded guilty to six and four offences respectively, although the pleas of guilty were not entered at the first reasonable opportunity. For the pleas of guilty, the sentencing judge gave Mr Tumata and Mr Sheppard each a 10% discount pursuant to s 9AA of the Sentencing Act.
With respect to the respondents, his Honour gave some mitigation for their relative youth.[38] His Honour found that none of the respondents showed any remorse for their offending other than Mr Tumata and Mr Sheppard and then only as to the offences to which they entered pleas of guilty.
[38] ts 1241, 1244.
With respect to Mr Woods, his Honour took into account that Mr Woods had suffered disadvantage in his upbringing. In particular, his Honour observed that, from a relatively young age, Mr Woods' upbringing lacked structure, support and guidance. Further, Mr Woods had been exposed to negative influences in his life, including from his father. His Honour said that these disadvantages may explain the reason for his offending, to some extent, and took them into account as a mitigating factor.
His Honour took into account both the totality principle and the parity principle. As to the parity principle, he said that Mr Tumata and Mr Sheppard were equally culpable for the offending. They were, as his Honour put it, the 'joint ringleaders'. His Honour said that Mr Woods' culpability was less serious, although he acted as an enthusiastic follower in respect of those offences for which he was not a principal offender. Mr Woods also committed fewer offences than Mr Tumata and Mr Sheppard.
His Honour observed that all three respondents were either serving a term of imprisonment or waiting to be sentenced at the time of the offending against M. His Honour found that none of them had made progress towards rehabilitation, and that their previous terms of imprisonment had not deterred them from offending against M. His Honour said that there was a strong demand for retribution despite the respondents having already served sentences of imprisonment at the time of the offending.

Appellant's submissions

Ms Forrester SC's primary contention on behalf of the appellant was that, in each case, the total effective sentence imposed did not properly reflect all of the serious features of the offending.
Ms Forrester SC described the respondents as having waged a campaign of violence against the victim over a period of 18 days. She characterised the offending as sadistic, malicious, humiliating and intimidating and noted that the offending behaviour comprised a number of separate and distinct episodes of violence which, it was said, required a greater degree of accumulation than was given by the sentencing judge. She emphasised the sustained and brutal nature of the violence to which the respondents subjected the victim and the effects that the offending had upon the victim, asserting that the offending had effectively destroyed M's life, at least for the time being.
Ms Forrester SC also emphasised that the victim, a 22-year-old man who had never been incarcerated before, was highly vulnerable.
Ms Forrester SC submitted, in effect, that the total effective sentence did not reflect the particular need in this case to properly reflect the sentencing objectives of general and personal deterrence.
Ms Forrester SC accepted that, in respect of all of the respondents, youth provided some mitigation. (It is, however, difficult to see how this factor is relevant to Mr Woods, given that he was aged 26 at the time of the offending.) However, apart from the pleas of guilty entered on some counts by Mr Tumata and Mr Sheppard, there was little other mitigation. Each of the respondents had a criminal history of violence and each was institutionalised.
Ms Forrester SC submitted that, although there were no real comparable cases, the outcomes in such cases as The State of Western Australia v Hussian,[39] Keating v The Queen,[40] Wheeler v The State of Western Australia,[41] Ugle v The State of Western Australia,[42] The State of Western Australia v TLP[43] and Royer v The State of Western Australia[44] provide some support for the ground of appeal.
[39] The State of Western Australia v Hussian [2020] WASCA 186.
[40] Keating v The State of Western Australia [2007] WASCA 98.
[41] Wheeler v The State of Western Australia [2008] WASCA 111.
[42] Ugle v The State of Western Australia [2012] WASCA 104.
[43] The State of Western Australia v TLP [2019] WASCA 66.
[44] Royer v The State of Western Australia [2009] WASCA 139.

Submissions on behalf of Mr Tumata

Counsel for Mr Tumata, Mr Burgoyne, drew the court's attention to the affidavit of Jesse Cox, which is the subject of an application filed 14 September 2021 to adduce additional evidence in Mr Tumata's appeal and which we would allow. The affidavit shows that Mr Tumata has been in custody continuously since 14 March 2017. Initially, Mr Tumata was serving a sentence of immediate imprisonment for offences committed prior to the current offences. He was then remanded in custody in respect of the current offences. Mr Burgoyne submitted that, in considering the ground of appeal, the total effective sentence of 14 years must be considered in light of the time Mr Tumata had already spent in custody before he was sentenced by Herron DCJ. Once the total effective sentence of 14 years' imprisonment imposed upon Mr Tumata is seen in this light, what appears to be a low sentence becomes justifiable.

Submissions on behalf of Mr Sheppard

Counsel for Mr Sheppard, Ms Auburn, emphasised the mitigating factors in Mr Sheppard's favour, which were said to be that he is an Indigenous man of relative youth and who had pleaded guilty to some of the offences. Ms Auburn conceded that the offending behaviour was very serious. In oral submissions, she said the offending was 'probably in the worst category', but did not go so far as to concede that it was in that category.[45] However, having regard to the totality principle and a comparison of the outcome in the present case with the outcome in the case of Hussian, the total effective sentence imposed upon Mr Sheppard was not unreasonable or plainly unjust.
[45] Appeal ts 10.

Submissions on behalf of Mr Woods

Counsel for Mr Woods, Mr Ryan, submitted that the cases of Keating and Wheeler relied upon by the appellant were so exceptional as to be of no assistance. Mr Ryan submitted that having regard to the outcomes in Ugle, Royer, TLP and Hussian, the total effective sentence imposed upon his client could not be seen to be erroneous.

It was submitted on behalf of Mr Woods that, if the court allowed the ground of appeal, this court should exercise its residual discretion and dismiss the appeal. It was submitted that this court should apply its residual discretion because the State did not do enough to assist the sentencing judge by alerting him to all of the comparable cases now relied upon in this appeal by the State.

Appellate sentencing principles

Because of the fundamental importance of the discretion conferred on sentencing judges at first instance, an appellate court cannot intervene merely because it would have exercised the discretion differently. This court can only intervene if it is demonstrated that the court below made a material error, express or implied. An allegation that the total effective sentence infringed the totality principle is an allegation of implied error. Ultimately, what must be established is that the total effective sentence imposed upon each respondent was unreasonable or plainly unjust.
The totality principle comprises two limbs. The first limb of the totality principle requires that the total effective sentence bears a proper relationship to the overall criminality involved in all of the offences, viewed in their entirety and having regard to the circumstances of the case, including those referable to the offender personally. The second limb is that the court should not impose a 'crushing' sentence. The word 'crushing' in this context connotes the destruction of any reasonable expectation of a useful life after release: Roffey v The State of Western Australia.[46]
[46] Roffey v The State of Western Australia [2007] WASCA 246 [24] ‑ [25].
In Pearce v The Queen,[47] McHugh, Hayne and Callinan JJ stated that a judge sentencing an offender for more than one offence must fix an appropriate sentence for each offence and then consider questions of cumulation or concurrence, as well as totality. Their Honours emphasised the importance of fixing an appropriate sentence for each offence before the totality principle is applied. The preferred approach to the application of the totality principle is to achieve an appropriate total effective sentence by making sentences wholly or partially concurrent. Another approach is to lower the individual sentences below what would otherwise be appropriate.
[47] Pearce v The Queen (1998) 194 CLR 610.
A relevant factor in the consideration of the State's ground of appeal is the range of sentences imposed in comparable cases. Such cases, where they exist, are a yardstick against which the offences in question may be compared. However, the range of sentences customarily imposed does not mark out the boundaries of an exercise of a sound sentencing discretion in an individual case. Sometimes, there is no discernible sentencing range. As we will explain, this is such a case. The absence of relevant comparable cases does not prevent this court concluding that the ground of appeal has been made out.[48]
[48] See Munda v The State of Western Australia [2013] HCA 38; (2013) 249 CLR 600 [38] - [39] (French CJ, Hayne, Crennan, Kiefel, Gageler & Keane JJ); The State of Western Australia v Doyle [2017] WASCA 207 [36] (Buss P, Mazza JA & Hall J); McAlpine v The State of Western Australia [2018] WASCA 195 [54] (Buss P & Mazza JA).

Disposition

We now turn to the disposition of the appeals. We will begin with some observations which apply generally to each respondent.
The extremely serious nature of the offences committed by each of the respondents is plainly evident from the summary of facts and the salient parts of the sentencing remarks.
The offending was aptly characterised by the State in this court as sadistic, malicious, humiliating and intimidating. The respondents, in concert, deliberately preyed upon a highly vulnerable victim. The offending was committed in the course of a number of separate and distinct episodes over a period of about two weeks (although we acknowledge that, in the case of Mr Woods, the period was somewhat shorter). Together, the respondents waged a campaign of terror upon M, which caused him significant physical injury and broke him psychologically. The respondents' acts were merciless. They involved a level of deliberate callousness, cruelty and depravity seldom seen by this court.
An especially serious feature of the offending was that it was committed in a prison by inmates upon another inmate. The status of being a prisoner does not disentitle a person to the protection of the law. Prisoners, particularly those who, like M, are young, alone and have never been incarcerated before, may be highly vulnerable to the threats and intimidation of more experienced prisoners such as, in this case, the respondents. We observe that the respondents began their attacks on M on the day that he arrived in the self‑care unit. His vulnerability would have been apparent to the respondents, who immediately proceeded to take advantage of it. They committed the offending out of the view of prison officers with one of them standing as a lookout.
It is well known that, out of a fear of retribution, a culture of silence often exists between prisoners with the consequence that offences committed by a prisoner upon another prisoner, unless detected by prison officers, may go unreported or, if reported, may be difficult to investigate and prove.
For these reasons, along with the objective of preserving the good order of prisons, both specific and general deterrence are major sentencing considerations for offences of intimidation and violence committed by a prisoner upon another prisoner.
His Honour was correct to state in his sentencing remarks that the sentences he imposed must send a message to the prison population that offending of the type engaged in by each respondent would not be tolerated and that severe penalties would be imposed if it occurred. His Honour was also correct to observe that, because of the importance of deterrence, less weight could be given to personal mitigating factors.
Without in any way derogating from the seriousness of the respondents' other offending, to which we will refer below, the eight offences of aggravated sexual penetration involved a high level of criminality. The respondents together committed each of these offences over three separate and distinct incidents on different days, either as a principal or an aider. All of them involved the anal penetration of M, either with an object (a broom handle and a pencil), a penis or a finger. Each offence was committed in company and was designed to, and did in fact, terrify, degrade and humiliate M as well as cause him physical and psychological harm. All of the offences involved the use of considerable physical force, including by holding M down. Counts 11 and 21, in which an object was inserted into M's anus, risked inflicting very serious injury to M. Counts 18 to 21 were committed in two separate incidents, in the days after counts 11 to 14, at times when each of the respondents must have known that M's anus was still injured.
None of the respondents have shown any insight into the consequences of their offending upon M, and have exhibited no remorse, apart from the limited remorse that may be gleaned from the pleas of guilty entered by Mr Tumata and Mr Sheppard in respect of a limited number of offences, which do not include any offences of sexual violence.
The seriousness of the offences of aggravated sexual penetration without consent was heightened because they occurred in the context of the ongoing extortion of M, as well as the threats, assaults causing bodily harm and aggravated indecent assaults perpetrated against him. All of these offences, when considered together, substantially increased each respondent's overall criminality, recognising that Mr Tumata and Mr Sheppard were convicted of more offences than Mr Woods.
We have had regard to the outcomes in the cases cited to this court, including Keating, Wheeler, Ugle, Royer, TLP and Hussian.
Like the present case, all of these cases involved very serious violent sexual offending which resulted in very lengthy terms of imprisonment. However, they do not provide very much assistance in this case. Unsurprisingly, the facts and circumstances of these cases and of the offenders vary considerably between them and are not truly comparable with the facts and circumstances of the present case. Accordingly, a detailed analysis of them would be unproductive. What may be drawn from a consideration of these cases is that in very serious cases of violent sexual offending general and personal deterrence, retribution and the protection of vulnerable victims are the dominant sentencing considerations, and that matters personal to the offender, while not irrelevant, are given less weight.
We note the following features particular to each respondent.
Mr Tumata was, along with Mr Sheppard, a ringleader. At the time of the offending, he was 24 years of age. The weight that could reasonably be given for youth was small. Mr Tumata pleaded guilty to counts 1, 6, 34 and 35 and received a 10% reduction for the pleas, pursuant to s 9AA of the Sentencing Act. Mr Tumata is not a person of prior good character. He has a significant criminal history, although not for offences involving sexual violence. His criminal history, however, reveals a consistent attitude of disobedience towards the law, thus heightening the importance of personal deterrence as a sentencing factor.
Mr Tumata has spent a very significant portion of his adult life in prison and is considered to be institutionalised. He had been continuously in custody since 14 March 2017. For the same reasons as explained below at [129] in the case of Mr Sheppard, there is little if any mitigation to be found in this fact. While he cannot be seen to be beyond reform, his prospects for rehabilitation appear bleak, as in the case of Mr Sheppard.
Mr Sheppard was, as we have already said, a ringleader. He was also the person who initiated the extortion of M. Mr Sheppard was 23 years old at the time of the offending. The weight that could reasonably be given for youth was small. His personal circumstances provide no mitigation. Mr Sheppard pleaded guilty to counts 1, 4, 6, 7, 16 and 35 and received a 10% reduction pursuant to s 9AA of the Sentencing Act. Mr Sheppard is not a person of prior good character.
While he has no prior convictions for sexual violence, Mr Sheppard is no stranger to other forms of violence. It is disturbing that the offences which were dealt with in the District Court on 27 February 2018, for which Mr Sheppard received 4 years' immediate imprisonment, involved offending which bore some similarity to some of the circumstances of the offending against M. While Mr Sheppard is not to be punished again for his prior offending, the fact that Mr Sheppard has prior relevant convictions underscores the need to impose sentences in the present case that provide personal deterrence.
Unfortunately, Mr Sheppard's prospects for rehabilitation appear bleak. He has spent a good deal of his adult life in prison. He has limited empathy for M and does not accept responsibility for his criminal behaviour. He lacks insight into the seriousness of his offending.
At the time Mr Sheppard was sentenced, he had completed the 4‑year sentence that was imposed upon him by the District Court on 27 February 2018 (the previous sentence). The previous sentence was wholly served on 21 September 2020, being the date that the sentencing judge ordered the total effective sentence of 13 years 6 months' imprisonment to commence. In his sentencing remarks, his Honour had regard to the previous sentence and referred to this court's decision in Fletcher v The State of Western Australia.[49] His Honour gave little, if any, weight to the service of the previous sentence because the presumed rehabilitation and personal deterrence achieved by that sentence had no application, as Mr Sheppard committed the offences against M despite the previous sentence. His Honour's approach to the effect of the previous sentence is correct and in accordance with authority: see Carr v The State of Western Australia.[50]
[49] Fletcher v The State of Western Australia [2014] WASCA 219 [37] ‑ [38]; ts 1244.
[50] Carr v The State of Western Australia [2006] WASCA 125 [6] ‑ [7] (McLure JA, Steyler P agreeing).
Mr Woods was convicted of the 19 offences set out in [31] above. He was not involved in any of the offending beyond counts 28 and 29. His Honour determined that his overall culpability was less than Mr Tumata and Mr Sheppard. His Honour found that Mr Woods did not instigate the threats and violence, but acted 'more as a follower',[51] although he was an enthusiastic follower who readily became involved in the joint attacks on M, including by sexually penetrating him and holding him down while the other respondents sexually penetrated M.
[51] ts 1240.
Mr Woods did not have available to him any mitigation for pleas of guilty. He was not youthful at the time of the commission of the offences and was not remorseful. He did not have the advantage of prior good character.
The only mitigating factor applicable to Mr Woods arises from his deprived upbringing. Consistently with the principles stated by the High Court in Bugmy v The Queen,[52] the sentencing judge took Mr Woods's upbringing into account as part of the factors that his Honour was required to take into account in determining the sentence to be imposed upon the respondent.[53] While we acknowledge the ongoing effects of Mr Woods' deprived background, when considered against the extremely serious offending he engaged in, it is not a matter which provides much mitigation.
[52] Bugmy v The Queen [2013] HCA 37; (2013) 249 CLR 571.
[53] ts 1238 - 1239.
As described above at [87] and [88], Mr Woods has a significant prior criminal history which, as with the other respondents, underscores the need for personal deterrence.
The learned sentencing judge structured the total effective sentence imposed upon each respondent by, in effect, designating the sentence imposed on count 11 of 10 years' imprisonment as the head sentence, and then accumulating the sentence for one other offence. In the case of Mr Tumata, his Honour aggregated the sentence on count 21 with the sentence on count 11. His Honour did the same with Mr Sheppard and, in the case of Mr Woods, he aggregated the sentence on count 1 with the sentence on count 11. All of the other sentences were ordered to be served concurrently.
Count 11 was the most serious single offence. The use of the broom handle to sexually penetrate M elevated the seriousness of the offence above the other acts of sexual penetration. While the offence was not held to be in the category of the worst case, it came close, being in the upper range. His Honour did not moderate for totality the sentence for count 11. In respect of each respondent, the sentence of 10 years' imprisonment for count 11 was, in our view, lenient. In addition to count 11, each respondent committed other very serious acts of sexual penetration at the same time as count 11, and did so again on two more separate days. Moreover, each respondent was involved in the extortion and various acts of violence towards M, including acts of sexual violence that did not involve sexual penetration that were carried out over an extended period of time. Bearing these matters in mind and having regard to the sentencing objectives of personal and general deterrence, retribution and the protection of vulnerable victims, the imposition of a very heavy total effective term of imprisonment was required.
The imposition of a term of imprisonment to be served cumulatively on count 11 of 4 years' imprisonment in the case of Mr Tumata, 3 years 6 months' imprisonment in the case of Mr Sheppard and 2 years' imprisonment in the case of Mr Woods did not, in our opinion, properly reflect the criminality of all of the other offending committed against M. This resulted in total effective terms that were manifestly inadequate.
While the total effective terms of imprisonment imposed by his Honour were substantial, they nevertheless, in our opinion, infringed the first limb of the totality principle. Having regard to the extremely serious features of each respondent's offending and all of the other facts and circumstances of the case, including the mitigating factors available to each respondent, the total effective sentence imposed upon each respondent 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 which was open on a proper exercise of the sentencing discretion.
For these reasons, the ground of appeal has been made out in the case against each of the respondents.

The residual discretion

Pursuant to s 31(4) of the Criminal Appeals Act 2004 (WA), this court has a discretion to dismiss a State appeal against sentence even though a ground or grounds of appeal have been established. The onus is upon the State to negate any reason why the residual discretion of this court not to interfere should be exercised. The State submits that the residual discretion should not be applied because this court's intervention is required to maintain proper sentencing standards for very serious offences of the kind committed by the respondents.
Neither counsel for Mr Tumata nor counsel for Mr Sheppard submit that, in the event that the ground of appeal is made out, the residual discretion should be applied in favour of the relevant respondent. Counsel for Mr Woods submits that, in the event the ground of appeal is made out, the residual discretion should be applied in favour of Mr Woods.
Counsel for Mr Woods submits that the residual discretion should be exercised in Mr Woods' favour because at first instance the only comparable case cited by the State to the sentencing judge was Hussian; however, before this court, the State cites a number of other cases in support of its appeal. Counsel for Mr Woods contends that the appellant should not be permitted to rely on cases other than the one cited to the sentencing judge, because to do so would allow the appellant to put forward an argument on appeal that was not referred to during sentencing proceedings. It was submitted that the appellant's reliance in this appeal on cases other than Hussian created 'an inherent unfairness', because Mr Woods' counsel was denied the opportunity to make submissions about the cases at first instance and the sentencing judge was denied the opportunity to consider them before passing sentence.
In our opinion and for the following reasons, the State's reliance on cases in addition to Hussian before this court does not create any unfairness to Mr Woods or the other respondents and does not provide a reason to apply the residual discretion. First, as counsel for Mr Woods accepts, the State did not lead the sentencing judge into error by only referring to Hussian. Second, the sentencing decisions of this court are publicly available and may be cited by both the State and an offender in sentencing proceedings. It was open to defence counsel at first instance to cite, or not, any case thought to be relevant. Third, it is difficult to see how the citation of cases in addition to Hussian has caused any prejudice to Mr Woods, given that in the present appeal it is common ground that none of the cases cited, including Hussian, are truly comparable. Fourth, comparable cases, while of relevance to the sentencing process, are only one factor to be considered. What really matters are the individual facts and circumstances of the case at hand. Fifth, if, as counsel for Mr Woods submits, the State should not be permitted on appeal to rely on authorities not cited by it at first instance, there is a real risk that the State would, out of caution, cite all cases that may be relevant at each sentencing hearing. In our opinion, this would have the undesirable effect of prolonging sentencing proceedings and focusing too much attention upon the comparable cases rather than upon the individual facts and circumstances of the case at hand.

While, for these reasons, we would not accede to Mr Woods' argument in support of the residual discretion, it is ultimately for the State to negate the application of the residual discretion.
The residual discretion should not be applied in the present appeals because this court's intervention is necessary in order to uphold proper sentencing standards in respect of extremely serious offences of violence committed against vulnerable victims in a prison setting. It is necessary to do so in order to deter others who might be minded to stand over vulnerable prisoners and to protect such prisoners from the predations of other prisoners who might be tempted to behave in this way.
In the circumstances of this case, we are satisfied that the State has demonstrated that the residual discretion should not be applied.

Resentencing

This court has before it all the necessary material to resentence the respondents. This task must be performed afresh. We have, in the case of each respondent, taken into account the relevant mitigating factors, including their personal circumstances. In the cases of Mr Tumata and Mr Sheppard, we have had regard to the offences for which they have pleaded guilty. Although the pleas were entered in the District Court on 21 October 2020,[54] we would, like the sentencing judge, give a discount of 10%, pursuant to s 9AA of the Sentencing Act. We have had regard to both limbs of the totality principle.
[54] ts 1211 - 1212.
We would impose the same individual sentences as imposed by the sentencing judge (before any reduction for totality), which, having regard to all the facts and circumstances, are appropriate.
In our opinion, the appropriate total effective sentence for Mr Tumata is 17 years' imprisonment, backdated to commence on 14 November 2019. To achieve this, we would reduce for totality the sentence on count 21 from 5 years 6 months to 3 years 6 months and order that the sentences on counts 10, 11 and 21 be served cumulatively, and that all of the other sentences be served concurrently with each other and concurrently with the sentence on count 11.
In our opinion, an appropriate total effective sentence for the offending committed by Mr Sheppard is 16 years 6 months' imprisonment, backdated to commence on 21 September 2020. To achieve this, we would reduce for totality the sentences on count 21 from 5 years 6 months to 3 years 6 months and order that the sentences on counts 1, 11, 16 and 21 be served cumulatively, while all other sentences are to be served concurrently with each other and concurrently with the sentence on count 11.
With respect to Mr Woods, the appropriate total effective sentence is 14 years 6 months' imprisonment, backdated to commence on 4 December 2020. We would achieve this by ordering that the sentences on counts 10, 11 and 28 be served cumulatively, and that the other sentences be served concurrently with each other and concurrently with the sentence on count 11.
In respect of each of the respondents, we would order that they remain eligible for parole.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
RK
Research Associate to the Honourable Justice Murphy and the Honourable Justice Mazza
6 DECEMBER 2022