The State of Western Australia v Upkett
[2013] WASCA 263
•21 NOVEMBER 2013
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: THE STATE OF WESTERN AUSTRALIA -v- UPKETT [2013] WASCA 263
CORAM: BUSS JA
NEWNES JA
MAZZA JA
HEARD: 5 JUNE 2013
DELIVERED : 21 NOVEMBER 2013
FILE NO/S: CACR 218 of 2012
BETWEEN: THE STATE OF WESTERN AUSTRALIA
Appellant
AND
DARREN PETER WILLIAM UPKETT
Respondent
FILE NO/S :CACR 219 of 2012
BETWEEN :THE STATE OF WESTERN AUSTRALIA
Appellant
AND
AGNES VIOLET OLIVER
Respondent
FILE NO/S :CACR 220 of 2012
BETWEEN :THE STATE OF WESTERN AUSTRALIA
Appellant
AND
EARVIN JARED HENSLEY DIMER
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram :STEVENSON DCJ
File No :BRO 2 of 2012
Catchwords:
Criminal law - State appeal against sentence - Aggravated robbery - Three counts of aggravated sexual penetration - Manifest inadequacy - Totality principle
Legislation:
Criminal Code (WA), s 326, s 392(c)
Sentencing Act 1995 (WA), s 9AAResult:
Appeals allowed
Respondents resentenced
Category: A
Representation:
CACR 218 of 2012
Counsel:
Appellant: Mr J McGrath SC
Respondent: Mr A E Monisse
Solicitors:
Appellant: Director of Public Prosecutions (WA)
Respondent: Andrew Monisse
CACR 219 of 2012
Counsel:
Appellant: Mr J McGrath SC
Respondent: Mr C Miocevich
Solicitors:
Appellant: Director of Public Prosecutions (WA)
Respondent: C & G Miocevich Law Offices Pty Ltd
CACR 220 of 2012
Counsel:
Appellant: Mr J McGrath SC
Respondent: Mr A G Elliott
Solicitors:
Appellant: Director of Public Prosecutions (WA)
Respondent: Patti Chong Lawyer
Case(s) referred to in judgment(s):
Bugmy v The Queen [2013] HCA 37
Clarkson v The State of Western Australia [2006] WASCA 250
House v The King [1936] HCA 40; (1936) 55 CLR 499
'I' v The Queen [2002] WASCA 259
Juli v The Queen (1990) 50 A Crim R 31
MOD v The State of Western Australia [2011] WASCA 23
Munda v The State of Western Australia [2013] HCA 38; (2013) 87 ALJR 1035
MXP v The State of Western Australia [2010] WASCA 215; (2010) 41 WAR 149
Neale v The Queen [1982] HCA 55; (1982) 149 CLR 305
R v AAH [2009] QCA 321; (2009) 198 A Crim R 1
Roffey v The State of Western Australia [2007] WASCA 246
Rogers v The Queen (1989) 44 A Crim R 301
The State of Western Australia v Akizuki [2008] WASCA 267; (2008) 192 A Crim R 373
The State of Western Australia v Munda [2012] WASCA 164; (2012) 43 WAR 137
The State of Western Australia v Turaga [2006] WASCA 199
Truica v The Queen [2001] WASCA 221
Ugle v The State of Western Australia [2012] WASCA 104; (2012) 223 A Crim R 115
Veen v The Queen (No 2) [1988] HCA 14; (1988) 164 CLR 465
1BUSS JA: I agree with Mazza JA.
2NEWNES JA: I agree with Mazza JA.
3MAZZA JA: These are State appeals pursuant to s 24(1)(a) of the Criminal Appeals Act 2004 (WA) against sentences imposed on each respondent in the District Court. On 26 June 2012, the respondents each pleaded guilty to an indictment which alleged one count of aggravated robbery (count 1), contrary to s 392(c) of the Criminal Code (WA), and three counts of aggravated sexual penetration without consent, contrary to s 326 of the Criminal Code (counts 2 to 4). On 10 September 2012, Mr Dimer and Ms Oliver were each sentenced to a total effective term of 5 years 6 months' imprisonment with eligibility for parole. Mr Upkett was sentenced to 6 years 6 months' imprisonment with eligibility for parole. The individual sentences imposed on the respondents are set out at [52] of these reasons.
4The grounds of appeal in each case are identical. The first ground alleges that the individual sentences for each of the offences of aggravated sexual penetration without consent were manifestly inadequate. The second ground alleges that the total effective sentence imposed upon each of the respondents infringed the first limb of the totality principle. Leave to appeal has been granted in respect of these grounds.
The facts of the offending
5The facts of the offending as found by the learned sentencing judge are not challenged. They may be summarised as follows. Each of the respondents was, at the relevant time, 18 years of age. The victim, a Canadian tourist then visiting Broome, was 22 years of age.
6During the evening of 27 September 2011, the victim socialised with friends at a backpackers hostel in Broome. At about 10 pm, she and others walked to a bar in Broome. She left there at about 2 am on 28 September 2011, with the intention of walking home. She described herself as being 'quite drunk, but able to walk in a straight line and talk normally'. She walked out of the bar with some friends, but those friends stopped to talk and she chose to go back to the hostel alone. Unfamiliar with her surroundings, she took a wrong turn and became lost, ending up on Anne Street. There, she encountered a group made up of the three respondents, as well as two juvenile co‑offenders, DBK aged 17, and MD aged 12.
7The respondents had been, during the afternoon and evening of 27 September 2011, in each other's company and had consumed alcohol and cannabis. In the early hours of 28 September 2011, they and the two juveniles went for a walk and ultimately arrived at Anne Street. Ms Oliver was in an angry mood. She noticed the victim walking alone along Anne Street and approached her, brandishing a broken bottle. She demanded the victim's bag, threatening to kill her if she did not hand it over. The victim said there was nothing of interest in the bag and refused to hand it over. The respondents and the juvenile co‑offenders then surrounded the victim. Ms Oliver punched her in the face with a closed fist two or three times, causing bleeding from the victim's nose and bruising and swelling to her left cheek. Ms Oliver told the victim that she would kill her if she told anyone what had happened. Ms Oliver pushed the victim and she fell backwards onto the road. At this point, Mr Dimer and Mr Upkett both grabbed the victim's bag and tried to pull it from her. In the process, the strap of the handbag snapped, and the respondents ran down a nearby laneway with it. The bag contained, among other things, the victim's passport, credit cards, purse and mobile phone.
8The respondents ran to the far end of the laneway, which opened on to Lawrence Park. The victim followed the group, begging them to return her belongings, in particular her passport and credit cards. Mr Dimer punched the victim in the face and told her to stop following them. The victim persisted in her pleas.
9These are the facts of count 1.
10Mr Dimer, Mr Upkett and DBK then surrounded the victim. All three began touching the victim's breasts, first on the outside of her clothing and then under her clothing. They also touched her buttocks. The three of them pushed the victim to a dark area of Lawrence Park. Ms Oliver followed them. Mr Dimer, Mr Upkett and DBK continued to touch the victim's breasts and buttocks.
11DBK pulled the victim's top up. Mr Upkett unsuccessfully attempted to take a photograph of the victim, using her stolen mobile phone. Mr Upkett undid the strap of the victim's bikini top, which she wore underneath her shirt, while DBK pulled her shorts and bikini bottom down. The victim felt someone's fingers penetrate her vagina.
12Ms Oliver stood nearby and laughed while this occurred. She told the victim to comply with the assault or she would punch her again. The victim tried to push the respondents' hands away from her, but the respondents were too strong for her.
13Mr Dimer, with the assistance of Mr Upkett and DBK, forced the victim to the ground. One of the male offenders pulled the victim's shorts and bikini bottoms off. Ms Oliver remained nearby, swearing at the victim and threatening her.
14While the victim was being restrained on the ground and was partially naked, MD, the 12‑year‑old, touched the victim's stomach and slapped her buttocks.
15Mr Upkett attempted to insert his penis into the victim's mouth. The victim resisted. Mr Upkett responded by grabbing the victim's hair and slapping her face. Ms Oliver again threatened the victim with violence if she did not comply with the assault.
16The victim, fearing further assault, allowed Mr Upkett to insert his penis into her mouth for a short period before he removed it (count 2). At the same time that this offence was being committed, Mr Dimer inserted his penis into the victim's anus for about 30 seconds (count 3). It was accepted that Mr Dimer mistakenly thought that he was penetrating the victim's vagina. The victim sustained a tear to her anus as a result of the penetration.
17Mr Dimer got off the victim and walked a short distance away, where he ejaculated onto the grass before returning. In the meantime, Mr Upkett rolled the victim onto her back and penetrated her vagina with his penis. The victim initially struggled against him, but gave up, realising that he was too strong for her. After about a minute, Mr Upkett ceased penetrating the victim and got off her (count 4). Neither Mr Upkett nor Mr Dimer wore a condom. Throughout the sexual offending, the respondents taunted the victim. A short time later, Ms Oliver, MD and DBK all left the park. The victim got up and started to dress herself. Mr Upkett then approached the victim and apologised, before leaving her (ts 47), (Mr Dimer also claimed he apologised but his Honour made no such finding). The victim ran from the area and waved down a passing motorist, who conveyed her to the Broome police station. From there she was taken to the Broome Hospital, where she underwent medical examination. The victim was treated for swelling and bruising to her face and grazing to her back.
18Later on 28 September 2011, Mr Dimer participated in a brief interview with police, but declined to answer any questions put to him. However, on 8 November 2011, he participated in a further interview in which he admitted taking part in the aggravated robbery and admitted penetrating the victim's vagina (as he thought) with his penis. He also signed a statement implicating Mr Upkett in the sexual offences. Further, he identified one of the juvenile co‑offenders and promised to give evidence against him. As it turned out, that was unnecessary because, as a consequence of Mr Dimer's cooperation, the juvenile pleaded guilty.
19Mr Upkett also participated in an interview with police. He admitted being present when Ms Oliver robbed the victim, but he denied committing any sexual offences against the victim. He indicated his guilty pleas eight months after the date of the offences. It was conceded on his behalf that the pleas of guilty were not entered at the earliest opportunity, although they were entered before the allocation of a trial date.
20Ms Oliver, in her interview with the police, admitted approaching the victim, but claimed that she asked the victim for cigarettes. Ms Oliver admitted punching the victim twice to the face, but denied holding a bottle or glass and denied witnessing any sexual offences.
21With respect to the aggravated robbery, all of the respondents were principal offenders. In respect of count 2, Mr Upkett was the principal offender, with the others being parties to the offence pursuant to s 7(c) of the Criminal Code. With respect to count 3, the principal offender was Mr Dimer, while the others were parties to the offence pursuant to s 7(c) of the Criminal Code. In respect of count 4, Mr Upkett was the principal offender, while the others were parties to the offence pursuant to s 7(c) of the Criminal Code.
22DBK was dealt with by the President of the Children's court at a later date. He was not charged with count 4. He was sentenced to 4 years' imprisonment. MD was charged with less serious offences and was dealt with by way of a non‑custodial disposition in the Children's Court. The State has not appealed against DBK or MD's sentences (appeal ts 6).
The victim impact statement
23The victim impact statement shows remarkable stoicism. It is clear from it that the victim wants to move on with her life, but it is also clear that she is finding it difficult to do so. The trauma caused to her by the offending has adversely affected her everyday life, her relationships and her ability to trust men. His Honour found that she had suffered 'significant psychological harm'.
Personal antecedents - Mr Upkett
24Mr Upkett was 19 years of age when he was sentenced.
25He was born and raised in Port Hedland. He moved to Broome in 2011. Mr Upkett was brought up by his maternal grandfather's sister whom he regarded as his grandmother. He does not know his father and his mother appears to have had limited hands‑on involvement in his upbringing. He had few boundaries and limits in his childhood and he gravitated towards peers who were engaging in antisocial activities.
26Mr Upkett has had little formal education and cannot read or write. He has no history of employment. Mr Upkett was badly injured in a motor vehicle accident in 2010. He suffered a head injury and his leg was badly broken. He appears to have recovered from these injuries. There is nothing to suggest that his head injury was a cause of his offending. He has no mental health issues.
27Mr Upkett has been a regular user of cannabis since the age of 10, and of alcohol since the age of 12.
28He has a long criminal history commencing at the age of 10. Since that time he has amassed a formidable record of dishonesty offences, including many burglary and stealing offences. At the time he committed the offences the subject of this appeal, he was subject to an adult intensive supervision order.
29Although Mr Upkett has no record of violent or sexual offences, a psychologist, Ms Cinzia Zuin, noted in her report to the court that the respondent had previously been involved in group sexual activities with other males in situations where the consent of the female involved was 'questionable'. In her opinion, Mr Upkett appears to have distorted views about females, especially in regards to 'sexual entitlement and objectifying women'. Ms Zuin noted the respondent's remorse for his actions and his motivation to participate in a sex offender treatment program. Nevertheless, he was assessed as being at a medium to high risk of sexual reoffending.
Personal antecedents - Ms Oliver
30Ms Oliver was 19 years old when she was sentenced.
31Her family background reveals a significant and extreme history of family dysfunction. Her mother has had a life‑long dependence upon alcohol and has led a very unstable life. Ms Oliver was born while her mother was in prison. She has two siblings and six half siblings. Two of her older half siblings are deceased. One of them took his life by hanging. Ms Oliver witnessed this. Another half sibling is blind having been shot in the face. Ms Oliver's father died when she was aged four years. She has received no support from her mother who was often physically and emotionally abusive towards her. Ms Oliver has some recollection of being sexually abused as a 7‑year‑old. She appears to have also witnessed acts of sexual abuse on others (ts 15).
32Ms Oliver did not attend school consistently due to her dysfunctional and unstable childhood. She has poor literacy and numeracy skills, and has never been employed. Ms Oliver was taught to steal by relatives, and this behaviour is normal in her extended family. She has little purpose or structure in her life.
33Ms Oliver commenced drinking alcohol at the age of 13 years. She described herself to Ms Sampson, a psychologist, as an 'alcoholic' who drinks 'at every opportunity'. She uses cannabis on a daily basis.
34Ms Oliver reported to Ms Sampson recurrent suicidal ideation and low mood since the age of 12. Ms Oliver was tested using the Depression, Anxiety and Stress Scale. Her results suggested that she is in the extremely severe range for depression and stress. Further psychological testing suggested 'poor moral reasoning and development [with a] tendency to behave in an unethical manner [with] little experience of guilt following poor behaviour'.
35Ms Oliver does not exhibit signs of sexual deviancy, nor was she sexually aroused by the conduct of her co‑offenders. According to Ms Sampson, her offending behaviour was driven by a combination of the circumstances I have already mentioned and was sparked by feelings of anger.
36Ms Oliver's criminal history is quite brief and does not include offences of violence. Despite this, Ms Oliver was assessed as being at a high risk of re‑offending in a violent manner in the absence of positive changes in her life.
Personal antecedents - Mr Dimer
37As with the other respondents, Mr Dimer was 19 years of age at the time he was sentenced.
38Mr Dimer was born in Kalgoorlie. His parents separated when he was 3 years of age. He was brought up in a transient lifestyle, spending time with his mother in Carnarvon, Port Hedland and Broome, and his father and grandparents in Perth. During his childhood he was exposed to family violence and alcohol abuse. Not surprisingly, his schooling was disrupted and he has problems reading and writing. More recently, he has been living in Broome with his partner, with whom he has a young child. Their relationship ended after an episode of domestic violence perpetrated by the respondent.
39Mr Dimer has been a regular user of alcohol and cannabis since the age of 13 or 14, and a daily user of these substances since about the age of 16. He has significant mental health issues suggestive of major depression and deficient emotional reflection.
40The respondent has amassed a formidable 14‑page long criminal history which commenced at the age of 13 years and continued unabated until his arrest on 28 September 2011. Relevantly, he has convictions for assault in circumstances of aggravation, attempted robbery and aggravated robbery. Mr Dimer has been sentenced to periods of detention and various orders under the Young Offenders Act 1994 (WA). His compliance with these orders has been poor. At the time of committing the present offences he was subject to a suspended imprisonment order which had been imposed on 26 September 2011, two days before the offending. He subsequently breached that order and was ordered to serve a term of imprisonment. He was serving that sentence at the time he was sentenced for the present offences. That sentence expired on 6 October 2012. Mr Dimer had no prior record of sexual offending, but the author of the pre‑sentence report noted 'distorted beliefs regarding women's roles in intimate partnerships and in society in general, as well as [a] lack of respect and regard for women'. Mr Dimer was remorseful for his actions. A tangible and significant reflection of his remorse was his cooperation with the authorities after his apprehension.
41The appellant's risk of reoffending in a sexual manner, in the absence of treatment, was assessed by the court‑appointed psychologist, Mr Wszola, to be high.
The sentencing remarks
42The learned sentencing judge described the overall offending as 'at the high end of the scale of seriousness'. He noted that the victim was vulnerable, being of small stature and by reason of her being alone, lost and defenceless. His Honour characterised the offending as 'cowardly' and comprising 'callous acts of savagery' (ts 41).
43His Honour found that each respondent had assisted in and encouraged the offending behaviour and knew that what they were doing was wrong (ts 41 ‑ 42). He said that the offending was aggravated by the 'group dynamic' (ts 42). He described what occurred as 'opportunistic', although the offending lasted 'a reasonable period of time'. His Honour noted that the period between the robbery and the acts of sexual penetration was short.
44The learned sentencing judge said that there was a clear need, having regard to the serious nature of the offending, to impose condign punishment in order to protect the community and to denunciate the offending. He stressed the need for both personal and general deterrence. He also referred to the need to aid the respondents' rehabilitation 'where possible' (ts 44).
45His Honour accurately described the personal circumstances of each respondent.
46In relation to Mr Upkett, his Honour referred to the fact that shortly after the offences he apologised to the victim, and subsequently he had not minimised, justified or rationalised his behaviour and took responsibility for what he had done (ts 49). The learned sentencing judge noted Ms Zuin's assessment of Mr Upkett's risk of reoffending. His Honour acknowledged Mr Upkett's pleas of guilty and his young age as significant mitigating factors (ts 49).
47In relation to Ms Oliver, his Honour described her as being a product of a 'disadvantaged' background. He acknowledged the extreme history of family dysfunction which, he said, had impaired her psychological development. In relation to the sexual offences, his Honour acknowledged that Ms Oliver did not touch the victim and was not sexually motivated or aroused, but found that she encouraged what occurred.
48The learned sentencing judge took into account Ms Oliver's early pleas of guilty and that she was only 18 years old at the time of the offending. He described these as 'very significant mitigating factors'. He also had regard to her connection to the Kimberley and noted that imprisonment in Perth would be more difficult for her (ts 46).
49In relation to Mr Dimer, his Honour acknowledged as a mitigating factor that he had offered to assist the authorities, if required, by giving evidence against DBK, one of the juvenile co‑offenders.
50His Honour observed that Mr Dimer had a dysfunctional and disadvantaged background. He noted Mr Dimer's mental health issues. The learned sentencing judge took into account, as an additional mitigating factor, Mr Dimer's early pleas of guilty. As with Mr Upkett and Ms Oliver, his Honour took into account Mr Dimer's youth.
51In respect of all three respondents, his Honour referred to the totality principle and in doing so, took into account the one transaction 'rule' and the parity principle.
52The individual sentences imposed upon each respondent may be summarised in tabular form as follows.
| Respondent | Count 1: Aggravated robbery | Count 2: Aggravated sexual penetration | Count 3: Aggravated sexual penetration | Count 4: Aggravated sexual penetration | Total effective sentence & other orders |
| Darren Peter Upkett | 3 years' imprisonment (cumulative) | 4 years' imprisonment (concurrent) | 3 years 6 months' imprisonment (cumulative) | 4 years' imprisonment (concurrent) | 6 years 6 months' imprisonment with parole eligibility, commencing 30 September 2011 |
| Agnes Violet Oliver | 3 years' imprisonment (cumulative) | 4 years' imprisonment (concurrent) | 3 years' imprisonment (concurrent) | 2 years 6 months' imprisonment (cumulative) (reduced from 3 years for totality) (ts 53) | 5 years 6 months' imprisonment with parole eligibility, commencing 29 September 2011 |
| Earvin Jared Hensley Dimer | 2 years' imprisonment (cumulative) (reduced from 3 years for totality) (ts 53) | 3 years 6 months' imprisonment (concurrent) | 4 years' imprisonment (concurrent) | 3 years 6 months' imprisonment (cumulative ) | 5 years 6 months' imprisonment with parole eligibility, cumulative on term being served |
Appellate sentencing principles
53These appeals are governed by the well‑known and well‑established principles with respect to discretionary judgments set out by the High Court in House v The King [1936] HCA 40; (1936) 55 CLR 499. The appellant must establish error. It is not enough that the appellate court, had it been sentencing the respondents at first instance, might have imposed different sentences. Error may be established in two ways. It may be evident from the sentencing reasons that the primary court has made an express error of fact or principle. Alternatively, the result may be so unreasonable or plainly unjust that it may be inferred that in some way there has been a failure to properly exercise the sentencing discretion: Munda v The State of Western Australia [2013] HCA 38; (2013) 87 ALJR 1035 [34]. If error is established, this court is only permitted to intervene if, in its opinion, a different sentence should have been imposed: Criminal Appeals Act 2004 (WA) s 31(4)(a). In a State appeal, this court has a residual discretion not to intervene even where it is established that a sentence is manifestly inadequate.
Manifest inadequacy and the totality principle
54In each appeal, the appellant relies on allegations of manifest inadequacy and a breach of the totality principle. These are species of inferred error. Manifest inadequacy (or, for that matter, manifest excess) seeks to impugn an individual sentence, while the totality principle seeks to impugn the total effective sentence imposed upon an offender.
55The proper approach to an allegation of manifest inadequacy is to examine the individual sentence imposed, having regard to:
(i)the maximum sentence for the offence;
(ii)the standards of sentencing customarily observed for that offence;
(iii)the place which the criminal conduct occupies on the scale of seriousness; and
(iv)the personal circumstances of the offender.
56See The State of Western Australia v Munda [2012] WASCA 164; (2012) 43 WAR 137 [57]. See also Munda v The State of Western Australia [33].
57The totality principle was described by McLure JA (as she then was) in Roffey v The State of Western Australia [2007] WASCA 246 in these terms:
The appellant relies on the totality principle which comprises two limbs. The first limb is that the total effective sentence must bear a proper relationship to the overall criminality involved in all the offences, viewed in their entirety and having regard to the circumstances of the case, including those referable to the offender personally: Woods v The Queen (1994) 14 WAR 341.
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: Martino v The State of Western Australia [2006] WASCA 78 [16]. An aggregate sentence may be inappropriately long under the first limb even if it cannot be described as crushing: Jarvis v The Queen (1998) 20 WAR 201, 216 (Anderson J).
The practical effect of the totality principle is ordinarily to arrive at an aggregate sentence that is less than that which would be arrived at by simply adding up all the terms appropriate for the individual offences: R v Holder [1983] 3 NSWLR 245, 260 (Street CJ). A rationale for the totality principle is that there is assumed rehabilitation and reduced demand for retribution after the initial sentences have been served. Where the principle of totality comes into effect, it is of little importance how the ultimate aggregate is made up: R v Holder (260) [24] ‑ [26].
The role of comparable cases
58The outcomes of comparable sentencing cases are relevant to a consideration of manifest inadequacy and an alleged breach of the totality principle. This is because they are a yardstick against which the sentence in question may be compared, with the aim of achieving broad consistency. That said, the following points must be made:
1.Comparable sentences do not fix the boundaries within which future judges must or even ought to sentence: Munda v The State of Western Australia [39].
2.Although disparity from the range of sentences imposed is one pointer towards inadequacy (or excess), it is not an essential precondition to that conclusion: Munda v The State of Western Australia [39].
3.Comparable sentences are not the only yardstick. The maximum sentence is also a relevant yardstick: Munda v The State of Western Australia [40].
4.Comparable sentences are only one of the factors which are relevant when deciding an allegation of inferred error.
5.It must be borne in mind that sentencing is an individualised process. By that is meant that the sentence in each case must be commensurate to the seriousness of the offence: Sentencing Act s 6(1) . In the end, whether a particular sentence is manifestly inadequate (or excessive) or whether a total effective sentence breaches the totality principle will depend on all the individual circumstances and not simply on a comparison with other cases.
59With respect to the range of sentences customarily imposed in cases of sexual offending, it has been said time and time again by this court and its predecessor that there is no tariff for such offences because of the widely varying circumstances in which they are committed and of the offenders who perpetrate them.
60In the well‑known and often cited case of The State of Western Australia v Akizuki [2008] WASCA 267; (2008) 192 A Crim R 373, Steytler P undertook a review of cases concerning offences of sexual penetration without consent not committed in circumstances of aggravation. He drew these conclusions:
(1)An average starting point for a case of penile penetration of the vagina without consent, absent circumstances of aggravation, is in the order of 7 years' imprisonment under the former sentencing regime, or around 4 years and 8 months' imprisonment under the transitional regime. That starting point takes no account of any factors in mitigation.
(2)Because the circumstances of sexual offending and sexual offenders are so variable, nothing will be achieved by specifying a range of sentences customarily imposed. The range of potential aggravating features is so huge that features of that kind can either dramatically increase the sentence imposed (bearing in mind that the maximum sentence for an aggravated offence is 20 years' imprisonment: s 326 of the Criminal Code) or have little or no effect on the sentence imposed. The range of potential mitigating factors is at least equally extensive. They might result in a very large reduction in sentence or little or no reduction.
(3)Nor will anything be achieved by specifying a different starting point for each category of sexual penetration without consent. It should not be assumed that one form of sexual penetration is necessarily more, or less, serious than another. As Wheeler JA pointed out in C v The State of Western Australia [2006] WASCA 261 [35], there is no 'hierarchy of sexual penetration'. For example, although digital penetration will ordinarily be less serious than penile penetration, that is not inevitably so. It might, in particular circumstances, be no less serious or even more serious. The seriousness of every offence of unlawful sexual penetration must be determined by its own individual circumstances: C [35] (Wheeler JA); Cavill [266] - [267] (Miller JA) [68].
61Steytler P went on to observe:
That seems to me to be about as much guidance as can be obtained from the cases. I appreciate that it is less than sentencing judges might wish. However, that is a necessary consequence of the court's obligation to tailor each sentence to the individual circumstances of the case, having regard for the maximum penalty provided by the legislature and, to the extent that they can be of assistance, sentences customarily imposed in similar circumstances [69].
62In an earlier case, The State of Western Australia v Turaga [2006] WASCA 199, McLure JA (as her Honour then was), with whom Buss JA agreed, said [35]:
There is no tariff for offences of sexual penetration without consent. However, prior to the commencement of the Sentencing Amendment Act, the sentence for a single act of penetration of the vagina with the penis where the victim is over the age of 16 was (without regard to mitigating factors) in the range of 6 to 9 years (now 4 to 6 years). The dominant sentencing considerations are punishment and general and specific deterrence: R v Cleak [2004] WASCA 72 per Wheeler J at [13].
63There are only a small number of cases decided in this State involving sexual offences committed by offenders who were in company with each other. The cases identified by the appellant in this category were Clarkson v The State of Western Australia [2006] WASCA 250; The State of Western Australia v Cameron [2004] WASCA 299; 'I' v The Queen [2002] WASCA 259; and Truica v The Queen [2001] WASCA 221.
64It is unnecessary to discuss these cases in detail. They are not factually comparable. Moreover, 'I' concerns the sentencing of a juvenile and Cameron is a State appeal at a time where the double jeopardy principle applied.
65The appellant submitted that some guidance might be taken from the recent case of Ugle v The State of Western Australia [2012] WASCA 104; (2012) 223 A Crim R 115. In that case, an 18‑year‑old offender, while on bail for other offences, broke into the house of a 78‑year‑old woman who was living alone, assaulted her and then engaged in six acts of sexual penetration without consent. He pleaded guilty at a relatively early stage. The appellant had a comparatively minor prior record of convictions. However, neither the pre‑sentence report nor the psychological report were encouraging, and the trial judge concluded that the offender was, at the time of sentencing, 'a danger to the community'. The appellant's appeal against a total effective sentence of 11 years' imprisonment with eligibility for parole was dismissed.
66I do not consider the circumstances of the offending in the present case to be quite as serious as the circumstances of the offending in Ugle.
67In truth, the cases cited in these appeals are of little assistance.
Aboriginality and social disadvantage
68Each of the respondents is Aboriginal. Each comes from a background of significant, if not extreme, deprivation. This is particularly so with Ms Oliver.
69The same sentencing principles apply in every case, regardless of an offender's ethnicity. But where a person's ethnicity gives rise to disadvantage or hardship, that is a relevant matter to be considered in the exercise of the sentencing discretion. In the recent cases of Munda v The State of Western Australia and Bugmy v The Queen [2013] HCA 37, the High Court reaffirmed, in cases involving Aboriginal offenders, Brennan J's statement in Neale v The Queen [1982] HCA 55; (1982) 149 CLR 305, 326:
The same sentencing principles are to be applied … in every case, irrespective of the identity of a particular offender or his membership of an ethnic or other group. But in imposing sentences, courts are bound to take into account, in accordance with those principles, all material facts including those facts which exist only by reason of the offender's membership of an ethnic or other group. So much is essential to the even administration of criminal justice. That done, however, the weight to be attributed to the factors material in a particular case, whether of aggravation or mitigation, is ordinarily a matter for the court exercising the sentencing discretion of first instance or for the Court of Criminal Appeal.
70An Aboriginal offender's deprived background may mitigate the sentence that would otherwise have been imposed in the same way that the deprived background of a non‑Aboriginal offender may mitigate that offender's sentence: Bugmy [37]. However, the weight to be given to an offender's deprived background must be assessed in the light of all of the relevant circumstances of the case. As was pointed out in Bugmy, an offender's deprived background may not have the same (mitigatory) relevance for all purposes of punishment [44]. For example, the personal disadvantages affecting an individual offender may be, because of the circumstances in which they were engendered, so deep and so broad that they serve to shed light on matters such as an offender's recidivism: Munda v The State of Western Australia [52].
71Offending by Aboriginal persons is not to be viewed as systematically less serious than offending by persons of other ethnicities. To do so is 'to act upon a kind of racial stereotyping which diminishes the dignity of individual offenders by consigning them, by reason of their race and place of residence, to a category of persons who are less capable than others of decent behaviour': Munda [53].
Youth
72Buss JA, with whom I agreed, accurately encapsulated in Ugle the relevant sentencing principles relating to an offender's youth in this way:
Ordinarily, an offender's youth is a significant mitigating factor. This reflects the view that the interests of the community are best served by determined efforts to rehabilitate a youthful offender (including a very young adult). A very young adult may be impressionable, impulsive and less cognisant of the seriousness of particular offending than an older person. Also, a lengthy term of imprisonment will ordinarily be a heavier burden on a very young adult. However, youth must be weighed against the facts and circumstances of the offences which have been committed. A substantial custodial sentence may be required in an appropriate case, despite the offender's youth, in order properly to reflect the need to protect the public or a section of it, and the need for personal and general deterrence. See Ainsworth v D (a child) (1992) 7 WAR 102, 117 (Malcolm CJ, Franklyn & White JJ agreeing) [71].
73I will deal with each of the State's appeals separately. In each appeal I will discuss the grounds together.
The State of Western Australia v Upkett: CACR 218 of 2012
The parties' submissions
74The appellant submitted that the individual sentences for counts 2, 3 and 4 were manifestly inadequate, having regard to the maximum penalty for the offence of aggravated sexual penetration without consent (20 years' imprisonment) and his Honour's finding that the offending was 'at the high end of the scale of seriousness'. The State also submitted that the total effective sentence was erroneously low, having regard to all of the appellant's offending.
75The State acknowledged that while the respondent was entitled to credit for his pleas of guilty, the pleas were not entered at the earliest opportunity. The appellant also submitted that although the respondent was young and had a deprived background, he had an extensive criminal history and little insight into what he had done. It was pointed out that the respondent was assessed as being at a medium to high risk of sexual reoffending.
76In summary, the appellant submitted that, having regard to the sentencing objectives of punishment, deterrence and public protection, the individual sentences and the total effective sentence were inadequate.
77Mr Monisse, on behalf of Mr Upkett, submitted that, having regard to the pleas of guilty, the respondent's disadvantaged upbringing, his Aboriginality, his youth, his remorse and prospects for rehabilitation, the individual sentences and the total effective sentence were within the range of a sound sentencing discretion and should not be disturbed.
Discussion: The State of Western Australia v Upkett
78The learned sentencing judge characterised the overall offending as being at the 'high end of seriousness'. That characterisation was unchallenged and is entirely justified.
79As would have been patent to Mr Upkett and his co‑offenders when they first came across the victim, she was lost, alone and defenceless. She was thus highly vulnerable.
80Taking advantage of this, Mr Upkett and others robbed her. Ms Oliver was the instigator of the robbery, but Mr Upkett and Mr Dimer willingly and actively participated in it by surrounding the victim to prevent her escaping and then forcibly grabbed her bag from her.
81When the victim had the 'temerity' to pursue her attackers and plead for the return of her passport and credit card, she was sexually assaulted. With respect to these offences, Mr Upkett and Mr Dimer were the instigators and principal participants.
82The respondent participated in the uncharged indecent dealing which preceded the sexual offences. He tried to record some of it using the victim's telephone. Although he is not to be punished for these acts, they illuminate the criminality of what followed.
83It is unnecessary to repeat the circumstances of the sexual offences. They speak for themselves. Mr Upkett was the principal offender in two of the acts of sexual penetration (counts 2 and 4). The commission of count 2 was preceded by Mr Upkett attempting to penetrate the victim's mouth with his penis. When the victim resisted, he grabbed her hair and slapped her face. While Mr Upkett penetrated the victim's mouth with his penis, Mr Dimer was penetrating her anus. As if this was not enough, Mr Upkett sexually penetrated the victim for a second time by inserting his penis into her vagina. After this, he left the victim to fend for herself. The offending took place in the presence of two juveniles, both of whom indecently touched the victim. It must be said that Mr Upkett's behaviour was cowardly and merciless. He seriously degraded and humiliated the victim. To adapt the words used by Fraser JA in R v AAH [2009] QCA 321; (2009) 198 A Crim R 1 [91], she was subjected to the indignity of simultaneous sexual penetrations by two offenders. Her ordeal has had a significant and ongoing adverse effect upon her.
84The robbery was a serious enough example of its type, but having regard to the vulnerability of the victim, the nature of the sexual acts, the 'group' nature of the offending, the use of violence, both real and threatened, the multiple acts of penetration and their persistent and prolonged nature, the sexual offences were extremely serious examples of their type. It was truly outrageous offending which required the imposition of sentences that send a strong message of denunciation and deterrence, as well as to achieve the sentencing objectives of punishment and public protection.
85The circumstances of the offending are not the only relevant factors to be considered. The respondent pleaded guilty. Although not entered at the earliest opportunity, the pleas were entered before the case was set down for trial. The pleas spared the victim the need to testify at trial and were an important mitigating factor. The respondent's personal circumstances are also relevant. On the one hand, he is undoubtedly a very young offender with a deprived background. He is remorseful and prepared to participate in the sex offender treatment program. That said, the gravity of the offending cannot simply be explained out of immaturity or a youthful error of judgment. The mitigating effect of youth and his deprived background was significantly ameliorated by the serious nature of the offending. Mr Upkett has substance abuse issues, distorted views about women, particularly with respect to sexual entitlement, and a lack of insight into his offending. Moreover, despite his age, he has amassed a very long criminal history and has been assessed to be at a medium to high risk of sexual reoffending.
86Mr Monisse's submissions with respect to Mr Upkett's Aboriginality relied upon Rogers v The Queen (1989) 44 A Crim R 301 and Juli v The Queen (1990) 50 A Crim R 31. Both the circumstances of the offending and the offenders in those cases were different to the present case.
87Ultimately, what must be achieved is a sentence proportionate to the gravity of the offending: Veen v The Queen (No 2) [1988] HCA 14; (1988) 164 CLR 465, 477. In my respectful opinion, the individual sentences imposed for counts 2, 3 and 4 and the total overall sentence imposed by his Honour were not proportionate to the gravity of the offending. They did not properly reflect the seriousness of what Mr Upkett did. I have arrived at these conclusions having taken careful account of all of the mitigating factors, most particularly Mr Upkett's youth and deprived circumstances. Given the seriousness of the offending in this case, those matters cannot reasonably justify the individual sentences or the total effective sentence that were imposed by his Honour.
88With great respect to the learned sentencing judge, implied error has been established and I would uphold both grounds 1 and 2 in the appeal relating to Mr Upkett.
89This is not a case where the residual discretion under s 31(4) of the Criminal Appeals Act should be exercised. Counsel for the respondent did not submit that it should be exercised. There are no circumstances that would justify it. This court's intervention is necessary to ensure the preservation of proper sentencing standards.
Resentencing: The State of Western Australia v Upkett
90The State did not challenge the sentence imposed for the offence of aggravated robbery. That sentence should stand. With respect to counts 2, 3 and 4, I would, pursuant to s 9AA of the Sentencing Act 1995 (WA), reduce the head sentence by 12.5% to reflect the pleas of guilty. Having regard to all of the circumstances, including those matters personal to the respondent, I would resentence the respondent to 5 years and 6 months' imprisonment on count 2, 5 years' imprisonment on count 3 and 5 years and 6 months' imprisonment on count 4.
91For reasons of totality, I would order that the sentences on counts 1 and 4 be served cumulatively, making a total effective sentence of 8 years and 6 months' imprisonment. The respondent will remain eligible for parole and the sentence will commence on 30 September 2011.
The State of Western Australia v Oliver: CACR 219 of 2012
The parties' submissions
92In substance, the appellant's submissions were the same as the submissions made in Mr Upkett's appeal.
93The appellant submitted that Ms Oliver played a pivotal role in the aggravated robbery. In respect of the sexual offending, although she was not a principal, it was said that by her presence and words she encouraged Mr Upkett and Mr Dimer to commit the sexual offences, and while they were occurring she threatened and laughed at the victim.
94The appellant acknowledged Ms Oliver's pleas of guilty, but submitted that as they were entered a week before a trial listing date, they could not be regarded as early pleas. The appellant recognised Ms Oliver's very young age and her extremely troubled background. These factors, it was said, had to be balanced against the sheer seriousness of the offences and Ms Oliver's high risk of reoffending in a violent manner.
95Mr Miocevich, on behalf of Ms Oliver, highlighted her background and submitted that the culpability of her offending was reduced as a result of it, as was the need for general deterrence. He also stressed her youth and emphasised that she was not a principal offender in respect of the sexual offences. He submitted that neither of the grounds had been made out.
Discussion: The State of Western Australia v Oliver
96As I have already said, Ms Oliver was the instigator of the aggravated robbery offence. She was the one who saw the victim and initially approached her. Ms Oliver not only brandished an improvised weapon, she also threatened to kill the victim. She punched her more than once to the face and pushed her to the ground. At this point, the victim, who was already vulnerable, was made even more vulnerable. It was while the victim was in this position that her bag was stolen by Mr Upkett and Mr Dimer.
97Ms Oliver stood by as the victim was indecently assaulted and then sexually penetrated. During this ordeal Ms Oliver laughed at the victim and threatened her with assault if she did not do as Mr Upkett and Mr Dimer wanted. Her threats increased the victim's fear and led to her submitting to her attackers. Ms Oliver's conduct thus made it easier for both Mr Upkett and Mr Dimer to commit the sexual offences. Moreover, Ms Oliver's presence and words encouraged the principals to commit the sexual offences.
98Although Ms Oliver did not derive any sexual gratification from the offending, it must have been clear to her that Mr Upkett and Mr Dimer did. Ms Oliver's behaviour towards the victim was callous and inhumane. It may readily be inferred that her laughter must have increased the victim's humiliation. Despite being an accessory, her behaviour involved a high degree of criminality.
99Ms Oliver's guilty pleas are clearly mitigatory, but they were not entered at the earliest opportunity. Regard must also be had to her very young age and her background, which can only be described as appalling. Unfortunately, these disadvantages, while reducing her culpability, adversely affect her prospects of rehabilitation and shed light on her recidivism.
100I do not overlook the fact that imprisonment in Perth, away from her country, will be more onerous for her.
101Despite the mitigating factors, I am of the view that both the individual sentences for counts 3 and 4 and the total effective sentence that was imposed upon Ms Oliver were inadequate. They do not reflect the seriousness of the offending and are not proportionate to it. Both the individual sentences and the total effective sentence do not achieve the sentencing objectives of denunciation, punishment, deterrence and public protection.
102In my opinion and with great respect to the learned sentencing judge, implied error has been established and I would allow both grounds of appeal.
103The respondent did not seek to invoke the residual discretion pursuant to s 31(4) of the Criminal Appeals Act. There is, in any event, no reason to invoke it. As with Mr Upkett's appeal, this court's intervention is required to maintain proper standards of sentencing for serious offending of this kind.
Resentencing: The State of Western Australia v Oliver
104I have had regard to the respondent's lesser role in the sexual offending. I have also had regard to Ms Oliver's pleas of guilty and the mitigating factors, most prominently her age, deprived background and the fact that she will serve her sentence away from the Kimberley. Pursuant to s 9AA of the Sentencing Act, I would reduce the head sentences by 12.5% to take into account this factor. Having regard to all of the other matters personal to Ms Oliver, I would resentence the respondent with respect to counts 3 and 4 to 5 years' imprisonment and 4 years' imprisonment respectively. Bearing in mind totality, I would order that the sentences on counts 1 and 4 be served cumulatively. Thus, I would impose a total effective sentence of 7 years' imprisonment. The respondent will remain eligible for parole. I would backdate the sentence to commence on 29 September 2011.
The State of Western Australia v Dimer: CACR 220 of 2012
105The appellant's submissions with respect to Mr Dimer do not differ in substance to the submissions made in the appeal against the sentence imposed on Mr Upkett.
106Mr Elliott, on behalf of Mr Dimer, conceded that the offending was at the high end of seriousness. However, he contended that when weighed against the significant mitigating factors of youth, the pleas of guilty, the respondent's cooperation and the respondent's disadvantaged background, the individual sentences and the total effective sentence should not be interfered with.
107I regard Mr Dimer's overall offending as being on par with that of Mr Upkett. I have already described the salient features of that offending. With respect to the aggravated robbery, Mr Dimer, along with Mr Upkett, grabbed the victim's bag and pulled it from her. A short time later, when the victim pursued her attackers and begged them to return her belongings, Mr Dimer punched her in the face. It was Mr Dimer who first pushed the victim to the ground after she had been indecently assaulted. Mr Dimer penetrated the victim's anus, although he intended to penetrate the victim's vagina. This is hardly mitigating. In any event, Mr Dimer's penetration caused the victim's anus to tear.
108Like his co‑offenders, Mr Dimer is very young. His background is dysfunctional and his criminal history is long. It features prior convictions for serious violent offending. The present offences were committed two days after he had been placed on a suspended imprisonment order, thus accentuating the need for personal deterrence. Mr Dimer has substance abuse problems. He also has significant mental health issues. He harbours distorted views about women and a lack of respect for them. Without treatment, he poses a high risk of reoffending in a sexual manner. It is to Mr Dimer's credit that he pleaded guilty to the offences.
109There are two distinguishing features of his case. First, in early November 2011, he voluntarily contacted police and requested to be re‑interviewed (he had earlier denied the offences). Upon being re‑interviewed, he made admissions to the offences and provided information as to the roles played by the co‑offenders. Second, on 10 November 2011, he signed a statement and indicated that he was prepared to give evidence against DBK if the matter proceeded to trial. On 21 December 2011, Mr Dimer's lawyer wrote to the police to confirm that he intended to plead guilty to all the charges. In summary, Mr Dimer indicated that he would enter his pleas of guilty at an earlier time than either Mr Upkett or Ms Oliver, and he cooperated with the authorities to the extent that he was willing to give evidence against DBK. As it turned out, this was unnecessary as DBK pleaded guilty.
110The respondent is entitled to a greater discount for his pleas of guilty because he indicated that he would enter them at an early stage of the proceedings, prior to his committal to the District Court. In addition, he was entitled to further mitigation because of his offer to cooperate with the authorities in the prosecution of DBK: see MXP v The State of Western Australia [2010] WASCA 215; (2010) 41 WAR 149 and MOD v The State of Western Australia [2011] WASCA 23. For these reasons, although Mr Dimer's offending was on par with Mr Upkett's, Mr Dimer was entitled to be sentenced to lesser terms of imprisonment.
111Having said this, and despite the other mitigating factors, particularly Mr Dimer's youth, I am of the opinion that both grounds of appeal have been made out in Mr Dimer's case. The individual sentences imposed for counts 2, 3 and 4 and the total effective sentence were inadequate to reflect the seriousness of the offending and the need to provide sufficient denunciation, punishment, deterrence and public protection. With respect to the learned sentencing judge, implied error has been established.
112As with the other appeals, no attempt was made to invoke the residual discretion pursuant to s 31(4) of the Criminal Appeals Act. In any event, there would have been no justification for the discretion to have been exercised in favour of the respondent.
Resentencing: The State of Western Australia v Dimer
113With respect to the pleas of guilty, pursuant to s 9AA of the Sentencing Act, I have reduced the individual sentences that I would otherwise have imposed upon Mr Dimer by 17.5%. I have further discounted the sentence to take into account the respondent's cooperation. I regard the respondent's offer to give evidence against DBK as significant. It is an illustration of remorse and it is in the public interest that offenders cooperate with the authorities in the prosecution of co‑offenders, including by being willing to give evidence against them. I have also taken into account the mitigating factors personal to the respondent, including youth and the respondent's dysfunctional background.
114The individual sentences I would imposed in respect of counts 2, 3 and 4 are 4 years' imprisonment, 5 years' imprisonment and 4 years' imprisonment respectively. Having regard to considerations of totality, I would order that the sentences on counts 1 and 3 be served cumulatively, thus resulting in a total effective sentence of 7 years' imprisonment. The respondent remains eligible for parole. He was a serving prisoner at the time of sentencing. That sentence expired on 6 October 2012. I order that the sentences commence on that day.
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