Thorn v The State of Western Australia

[2008] WASCA 36

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT  :   THE COURT OF APPEAL (WA)

CITATION:   THORN -v- THE STATE OF WESTERN AUSTRALIA [2008] WASCA 36

CORAM:   WHEELER JA

BUSS JA
MILLER JA

HEARD:   19 FEBRUARY 2008

DELIVERED          :   28 FEBRUARY 2008

FILE NO/S:   CACR 94 of 2007

BETWEEN:   STEVEN THORN

Appellant

AND

THE STATE OF WESTERN AUSTRALIA
Respondent

ON APPEAL FROM:

Jurisdiction              :  DISTRICT COURT OF WESTERN AUSTRALIA

Coram  :WISBEY DCJ

File No  :IND 528 of 2005

Catchwords:

Criminal - Appeal against sentence - Sexual offences - Unlawful detention - Whether totality principle properly applied - Effect of appellant's psychiatric condition - Delay between the commission of an offence and the imposition of sentence not a mitigating factor where no unfairness to the accused

Legislation:

Criminal Appeals Act 2004 (WA), s 31(3), s 31(4)
Criminal Code (WA), s 326, s 333, s 401(1), s 552, s 554(b)
Sentencing Act 1995 (WA), Sch 1, cl 2(1)
Sentencing Legislation Amendment and Repeal Act 2003 (WA)

Result:

Appeal dismissed

Category:    B

Representation:

Counsel:

Appellant:     Ms K J Farley

Respondent:     Mr S E Stone

Solicitors:

Appellant:     Legal Aid (WA)

Respondent:     Director of Public Prosecutions (WA)

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

Barnes v The State of Western Australia [2004] WASCA 258

Carr v The State of Western Australia [2006] WASCA 125; (2006) 166 A Crim R 1

Chan (1989) 38 A Crim R 337

Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321

Jarvis v The Queen (1993) 20 WAR 201

Johnson v The Queen [2004] HCA 15; (2004) 78 ALJR 616

Kiesey v The State of Western Australia [2005] WASCA 229

Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665

Mallet v Mallet (1984) 156 CLR 605

Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357

Mill v The Queen (1988) 166 CLR 59

Orchard v The Queen [2004] WASCA 23

Paparone [2000] WASCA 127; (2000) 112 A Crim R 190

Pearce v The Queen (1998) 194 CLR 610

Postiglione v The Queen (1997) 189 CLR 295

R v Abboud [2005] NSWCCA 251

R v Law [1996] 2 Qd R 63

R v Leggett [2000] WASCA 327

Rigby v The State of Western Australia [2005] WASCA 134

T v The State of Western Australia [2005] WASCA 237

Ugle v The State of Western Australia [2007] WASCA 199

Vagh v The State of Western Australia [2007] WASCA 17

Vlek v The Queen (Unreported, WASCA, Library No 990153, 29 March 1999)

1. WHEELER JA:  I agree with Buss JA.

2. BUSS JA:  The appellant was convicted, on his plea of guilty, of six serious offences.  Each offence was committed on 2 September 1995 at the complainant's home in a suburb of Perth.

3. The offences, as alleged in the indictment, were these:

   (a)Count 1: On 2 September 1995, the appellant entered the place of the complainant, without her consent, with intent to commit an offence therein, contrary to s 401(1) of the Criminal Code (WA). 

   (b)Count 2: On the same date and at the same place, the appellant unlawfully detained the complainant, contrary to s 333 of the Criminal Code.

   (c)Count 3:  On the same date and at the same place, the appellant unlawfully detained the complainant's daughter.

   (d)Count 4: On the same date and at the same place, the appellant attempted to sexually penetrate the complainant, without her consent, by attempting to penetrate her vagina with his penis, and the appellant was armed with an offensive weapon, namely a knife, contrary to ss 326 and 552 of the Criminal Code. 

   (e)Count 5: On the same date and at the same place, the appellant sexually penetrated the complainant, without her consent, by penetrating her vagina with his penis, and the appellant was armed with an offensive weapon, namely a knife, contrary to s 326 of the Criminal Code.

   (f)Count 6: On the same date and at the same place, the appellant again sexually penetrated the complainant, without her consent, by penetrating her vagina with his penis, and the appellant was armed with an offensive weapon, namely a knife, contrary to s 326 of the Criminal Code.

4. When the offences were committed, the complainant was a young woman who lived with her 4‑year‑old daughter. 

5. The learned sentencing judge, Wisbey DCJ, imposed sentences, as follows:

   (a)Count 1:  18 months' immediate imprisonment.

   (b)Count 2:  18 months' immediate imprisonment.

   (c)Count 3:  9 months' immediate imprisonment.

(d)Count 4:  3 years' immediate imprisonment.

(e)Count 5:  6 years' immediate imprisonment.

(f)Count 6:  6 years' immediate imprisonment.

His Honour ordered that the sentence on count 5 be served cumulatively with the sentence on count 1, and that the sentences on all other counts be concurrent with the sentence on count 1.  The total effective head sentence was therefore 7 years and 6 months' immediate imprisonment.  His Honour also ordered that the sentences be backdated to commence on 11 April 2007, being the date on which the appellant was taken into custody for the offences.  The appellant was made eligible for parole.

1. On 4 October 2007, Wheeler JA ordered, relevantly, that the appellant have leave to appeal on grounds 1 and 2 in the appellant's case filed 3 October 2007.

The circumstances of the offences

1. On 2 September 1995, at about 3 am, the appellant broke into the complainant's home.  Before breaking in, the appellant severed an external telephone wire at the rear of the house.  He then entered the house through a side window by cutting a flyscreen and lifting the closed window to the dining room.  Once inside, the appellant switched off an illuminated light in the dining room and entered the complainant's bedroom.

2. When the appellant entered the bedroom, the complainant and her 4‑year‑old daughter were asleep in the same bed.  The complainant woke and reached for a telephone at the bedside, but discovered that the line was dead.  As the appellant entered the bedroom, he produced a knife.  He threatened the complainant and told her not to scream.  The appellant then straddled the complainant, who was lying on her back and holding her daughter, who had also woken.  The appellant stroked the blade of the knife up and down the complainant's face and told her he wanted to 'make love to her'.  He also instructed the complainant to comfort her daughter and not let her scream.  The length of the blade of the knife was approximately 15 centimetres.  The appellant also stroked the blade down the complainant's daughter's back.  Further, he ran the blade up the inside of the complainant's left leg from her knee to her vagina.

3. During the commission of the offences, the appellant wore either a balaclava or a similar facial disguise.  He informed the complainant that he knew her name, and he called her by her first name.  He also asked the complainant's daughter what her name was, and she told him. 

4. After stroking the complainant and her daughter with the blade of the knife, the appellant removed his trousers and lifted the complainant's nightdress.  He attempted unsuccessfully to penetrate the complainant's vagina with his penis.  He told the complainant to let him have sex with her or he would hurt her.  The appellant then pushed the complainant's legs up with his hands and penetrated her vagina with his penis.  He continued to have intercourse until he ejaculated.  The complainant was weeping during the assault.  After he ejaculated, the appellant left the bedroom and entered the hallway.  The complainant thought of attempting to escape with her daughter, but was too frightened.  She thought the appellant might kill them.  The appellant then returned to the doorway of the bedroom and asked the complainant to leave her daughter and enter the lounge room.  After the appellant threatened her with the knife, the complainant left her daughter in her bedroom and went with the appellant to the lounge room.  He instructed her to sit on a chair, pulled her body down into a semi‑reclining position, pushed her legs apart and again penetrated her vagina with his penis.  After completing that act, the appellant walked to the front door.  Before leaving, he told the complainant not to leave the house as he had friends outside with knives.  The complainant went to her bedroom to comfort her daughter who was upset.

5. The appellant's involvement in the offences was undetected for about 9 years.  His identity was then ascertained from DNA evidence obtained as a result of his arrest and conviction for stealing. 

The victim impact statement

1. The impact of the offences on the complainant and her daughter are described in the victim impact statement. 

2. The complainant suffered bruising around her neck from the pressure of the appellant's knife, and bruising around her vagina.  She underwent blood tests for hepatitis and HIV.  The negative results were not confirmed for about 3 months.

3. The offences have had a major emotional impact on the complainant and her daughter.  The complainant has experienced, amongst other things, emotional conflict and anxiety in connection with meeting and sustaining any close relationship with a man, sleep disturbance and deprivation, several episodes of depression and social anxiety.  The complainant's daughter has suffered post‑traumatic stress syndrome which required extensive counselling in the months after the offences were committed, and still requires intermittent counselling.  It is plain, and unsurprising, that the psychological and emotional trauma suffered by the complainant and her daughter was devastating, and continues to be significant.

The medical reports before the learned sentencing judge

1. In 1996, the appellant was diagnosed as suffering from schizophrenia and organic psychosis.  His mental health issues are referred to and discussed in several reports which were before the learned sentencing judge.  The reports include, relevantly, a report dated 25 November 2004 from Dr Fabrizio Goria, a senior psychiatry registrar, a report dated 27 December 2006 from Mr Andrew Palmer, a community mental health nurse, reports dated 15 January 2006 [sic 2007] and 2 April 2007 from Dr Adam Brett, consultant psychiatrist, reports dated 20 March 2007 and 2 April 2007 from Dr David Joyce, a physician with expertise in clinical pharmacology and toxicology, and a report dated 10 April 2007 from Dr Clea Louw, a consultant psychiatrist. 

2. Dr Goria said, in his report dated 25 November 2004, that the appellant suffers from organic psychosis and a moderate cognitive deficit as a result of his sustaining a severe head injury in 1988 in a trail bike accident.

3. Mr Palmer said, in his report dated 27 December 2006, that the appellant has been treated at the Joondalup Community Mental Health Clinic since 1997.  He added:

   I have known [the appellant] over a period of 8 years and have observed his concerted efforts to overcome various substance use problems with substantial progress.  [The appellant's] quality of life and level of functioning has improved significantly to the point where he has lived independently successfully for some years now.  [The appellant] has always been cooperative and compliant with psychiatric treatment and support, hence [the appellant's] mental illness has been successfully managed and remains stable.

4. Dr Brett conducted a clinical interview with the appellant on 9 January 2007.  In his report dated 15 January 2006 [sic 2007], Dr Brett noted that the appellant lived alone but has significant support from his mother.  Since 1992, the appellant has been in receipt of a disability support pension.  Dr Brett noted that the appellant was unable to give a coherent account of the offences.  He did not recall them in any detail.  Dr Brett's opinions may be summarised as follows:

   (a)The appellant has a mental illness, most likely organic psychosis.  The differential diagnosis would be schizophrenia developed in a man who has sustained a head injury and has undergone significant substance use.  The appellant has ongoing psychotic symptoms, which are being appropriately addressed at the Joondalup Community Mental Health Service.  He has improved and, as a result, there has been a significant reduction in his hospital admissions.  A principal reason for his improvement has been abstinence from alcohol, illicit substances and prescribed medication abuse.

   (b)The appellant has a significant history of polysubstance dependence.  This preceded his head injury, but was much worse after the occurrence of that injury. 

   (c)The appellant was probably unwell at about the time of the offences.  It appears that between 1989 and 1998, he was admitted to hospital on a number of occasions.  These were related to substance abuse, distress, self‑harm ideation, behavioural problems and confusional states.

   (d)Despite appropriate treatment and abstinence from illicit substances, the appellant has ongoing symptoms.  He has significant psychiatric issues, which need to be addressed.

5. In his report dated 2 April 2007, Dr Brett speculated on the possible effect on the appellant of the drug, benzodiazepine.  According to Dr Brett, a paradoxical effect of benzodiazepine is an increase in aggression.  This occurs rarely, but the effect is more common in people with brain damage.  It was, however, difficult to speculate as to the possible impact of benzodiazepine on the appellant's mental state at the time of the offences.

6. Dr Joyce, in his report dated 21 March 2007, expressed the following opinions in relation to the possible effect on the appellant, at the time of the offences, of medication supplied to him between 3 August 1995 and 29 September 1995.  A list of the medication in question was obtained from the records of Medicare Australia.  Dr Joyce said:

   The prescription information allows the possibility that [the appellant] was intoxicated with a combination of morphine‑like drugs and diazepam on 2 September 1995.  Intoxication with either drug or the combination could have impaired clarity of thinking, induced relaxation and reduced inhibition.  Under these circumstances, a person may be more likely to undertake a wrongful course of action.  However, intoxication of this nature would not have made him act automatically and would not have prevented him from understanding what he was doing and what the outcomes might be.  Intoxication of this nature would also not prevent him from forming intent for a line of action.  In this case, it would not be reasonable to suggest that the state of drug induced delirium was present at the time of the alleged offences.

   In his report dated 2 April 2007, Dr Joyce provided additional information on paradoxical responses to benzodiazepine.

7. Dr Louw, in her report dated 10 April 2007, said that she was the appellant's current treating psychiatrist.  Her first assessment of the appellant occurred on 31 October 2006, and since then she had seen him on multiple occasions for review of his mental health and treatment.  Dr Louw said that the appellant has suffered from severe mental health problems and disorder throughout his life.  He suffers from chronic schizophrenia and depression, which has been complicated over the years by acute and chronic organic mental disorder resulting from a brain injury at 15 years of age, and benzodiazepine and opiate dependence as a result of prescribed medications for physical pain.  The appellant's symptoms include psychotic symptoms involving disturbance or disorder of his thought form or pattern; odd, delusional beliefs (not reality based) and disorder of sensory perceptions; mood changes, anxiety symptoms, agitation and difficulties with emotional regulation and behaviour; and disturbances in attention, concentration and memory.  The appellant has suffered from poor self‑esteem and difficulties in interpersonal interactions since early childhood.  At school he was bullied by peers, and as an adult he has suffered from chronic disability in social and occupational function.  Over the years he has made a number of serious suicide attempts and has multiple psychiatric hospital admissions. 

8. Dr Louw discussed the appellant's medication and the absence of definitive treatment before 1996 for his schizophrenia:

   As far as I am informed, definitive treatment with antipsychotic medication for schizophrenia was only commenced in 1996.  I understand that prior to that year his treatment consisted mainly of various benzodiazepine medications, which are normally prescribed for control of anxiety or agitation, and a range of opiate containing medication agents for physical pain control.  These drugs are highly dependency forming and known to precipitate or contribute to deterioration in mental health with a range of mental symptoms, including the full range of symptoms mentioned above.  The risk of serious mental health deterioration precipitated by these drugs is particularly great in a highly vulnerable individual such as [the appellant], who has suffered from mental health problems since early life, and especially if indeed his chronic mental health disorders were left untreated or only partially treated.

9. Dr Louw then commented upon the significant improvement in the appellant's mental health since 1996:

   I understand, that overall there has been much improvement in [the appellant's] mental health since 1996, since commencing specific treatment with antipsychotic agents for schizophrenia and that his mental state and behaviour have been relatively well stabilised for many years.  In the previous one and a half years he suffered from severe anxiety and depression, with suicidal thoughts, which occurred in the context of his police charges and court case.  This was treated with Venlafaxine, an antidepressant agent.

   In October 2006, at the time, when I took over [the appellant's] psychiatric care his depression had already lifted and he no longer experienced suicidal thoughts.  The psychotic symptoms had largely subsided.  He had already succeeded in ceasing benzodiazepine use and had made considerable progress in his attempts to withdraw from opiate dependency over a period of about three years.  His opiate use was limited to a moderate dose of Methadone (35mg per day) under the supervision of Dr Strickland.  Methadone is an opiate which is strictly controlled and which is used to treat opiate dependence.  He was not taking any other opiate containing agents.  He was not abusing alcohol or any illicit drugs.  His treatment consisted of Olanzapine 10mg per day, Aripiprazole 30mg per day, both of which are antipsychotic agents; Venlafaxine 150mg per day, an antidepressant agent, and Methadone 35mg per day.

10. Dr Louw noted that since the appellant had been under her care, his mental state had improved.  She also noted that he had consistently expressed his abhorrence for the offences in question, and remorse and guilt that he may have committed those offences which, he claimed, were 'contrary to his nature'.

The appellant's prior criminal record

1. The appellant has a number of prior convictions as an adult.  Most of them concern traffic offences.  He has also been convicted of arson, burglary, disorderly conduct, fraudulently altering a prescription to obtain drugs and uttering that prescription, possessing a prohibited drug, breach of a probation order, and being on premises without lawful excuse.  However, the only offence committed since 12 September 1996 was stealing.  This offence occurred on 7 April 2004 and was relatively minor.  Before the appellant was sentenced for the offences the subject of this appeal, he had not served a custodial sentence. 

The learned sentencing judge's remarks

1. The learned sentencing judge recounted the circumstances of the offences and their impact on the complainant and her daughter.  His Honour noted that the seriousness of the offences and the necessity to protect females in the community required the imposition of an immediate term of imprisonment.  He then said:

   As in all sentencing exercises, the difficulty is identifying the term of imprisonment which appropriately responds to the criminality whilst paying due regard to matters personal to you.  I note that you were born on 15 November 1972, 23 years old at the date of the offending behaviour, and are now 34 years of age.  I have been provided with antecedent and pre‑sentence reports and details of your criminal history from which it can be seen that you have convictions for some serious offences including burglary and arson prior to these events.

   That does not operate in aggravation of penalty, of course, since you have already had those matters addressed but truncates the effect of matters personal in the sentencing exercise. Having said that of course, the Courts of Appeal have made it very clear on many occasions that matters personal have a very limited mitigatory consequence in offences of this kind.

   I have been provided with detailed psychiatric reports and reports from a physician specialising in clinical pharmacology and toxicology.  The latter reports suggest that you may at the relevant time have been intoxicated with a combination of morphine‑like substances and diazepam which could have impaired your thinking processes and reduced your inhibitions but would not have made you act automatically or prevented you from forming the necessary intent to behave in the manner you did and understanding its seriousness and consequence.

   Indeed, that assessment is eloquently confirmed by the degree of planning that accompanied your criminality, including the use of a knife, the wearing of some form of head coverage, and rendering the landline inoperative preventing the complainant from obtaining help, actions which are difficult to reconcile with a deranged mind.  The psychiatric reports demonstrate that you have been under observation because of and receiving treatment for mental illness since 1989, part the result of a head injury which was sustained in an accident in 1988.

   You have been diagnosed with an organic psychotic disorder with a differential diagnosis of schizophrenia and ongoing psychosis. There is a history of substance abuse which undoubtedly would have had a catalectic effect on your cognitive difficulties.

   His Honour referred to various extracts from Dr Brett's report dated 15 January 2006 [sic 2007], and Dr Louw's report dated 10 April 2007.  He then said:

   The psychiatric assessments provide partial explanation but no excuse, legal or otherwise, for the gravity of your behaviour.  It is not suggested that at the relevant time you were legally insane or that your mental condition was causative of the offending behaviour or significantly lessened its moral culpability.  It is necessary to give credit for your plea of guilty, which although coming at a very late stage ‑ in fact at the last moment - is indicative of the acceptance by you of the enormity of your conduct, demonstrates remorse and, most importantly, has saved the complainant and her daughter from the further trauma and indignity of the trial process.

   I have regard to the reference material and the letters from your mother and sister, also the rehabilitative steps achieved as a consequence of treatment over recent years.  Having made a reduction of 25 per cent for your plea of guilty and to reflect the cognitive difficulties which clearly will impact upon your imprisonment making it more difficult than might otherwise be the case and the rehabilitation that has taken place and a further one‑third reduction as required by law, the appropriate terms of imprisonment marking your criminality are as follows.

   His Honour then imposed the sentences and made the orders I have described at [5] above.

Grounds of appeal

1. The grounds of appeal are these:

   1.In the circumstances, the sentence was manifestly excessive and failed to reflect:

   (a)the change in circumstances of the Appellant in the lengthy period of time between the offences and the sentence.

   (b)The severity of his mental illness and attendant difficulties both at the time of the offences and at the time of sentencing.

   (c)The Appellant's remorse, given that he had no independent recollection of the offences.

   (d)That the offences appear to have been one, albeit extremely serious, act of offending and in the ensuing almost twelve year period there was no evidence to show that he had continued to act violently.

   2.The learned sentencing judge erred in that he failed to pay any or any sufficient regard to the matters referred to in ground 1 above.

2. Although ground 1 asserts that 'the sentence was manifestly excessive', it is apparent from the substance of the appellant's written and oral submissions that his case is that the imposition of a total effective head sentence of 7 years and 6 months infringed the totality principle.  The appellant did not contend that any individual sentence for any count was manifestly excessive.  I will deal with ground 1 on that basis.

The relevant principles of appellate review

1. An appellate court may intervene in a sentencing appeal if a material error of fact or law is apparent in the sentencing judge's reasons.  Also, an appellate court may intervene if error may be inferred on the ground that the result is unreasonable or unjust; that is, the sentence imposed is manifestly excessive or manifestly inadequate.  An appellate court may not, however, substitute its own opinion for that of the sentencing judge merely because the appellate court would have exercised the sentencing discretion in a manner different from the sentencing judge.  The High Court has emphasised that there is no single correct sentence, and that sentencing judges are to be allowed as much flexibility in sentencing as is consonant with consistency of approach and as accords with the applicable statutory regime.  See Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665 [15]; Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357 [27].

The nature of manifest excess

1. A ground of appeal which alleges that a sentence is manifestly excessive asserts the existence of an implicit error.  It does not assert a specific error.  See Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321, where Gleeson CJ and Hayne J observed:

   Manifest inadequacy of sentence, like manifest excess, is a conclusion. A sentence is, or is not, unreasonable or plainly unjust; inadequacy or excess is, or is not, plainly apparent. It is a conclusion which does not depend upon attribution of identified specific error in the reasoning of the sentencing Judge and which frequently does not admit of amplification except by stating the respect in which the sentence is inadequate or excessive [6].

2. In Vagh v The State of Western Australia [2007] WASCA 17, Roberts‑Smith JA said:

   Whether or not a sentence is manifestly excessive can only be gauged by seeing how the sentence falls with the established range of sentences for offences of the kind, taking into account all factors which are relevant to the offending and to the offender in the particular case.  A claim that a sentence is manifestly excessive (or inadequate) is a claim of implicit (that is otherwise unidentifiable) error.  It would ordinarily (if not always) be impossible to demonstrate that inadequate (or undue) weight was given to a particular factor, in the exercise of a sentencing discretion, in the absence of specific, identified error.  The attribution of weight to one or more factors in a combination of factors is the very essence of discretionary judgment and (in the absence of a statutory requirement), ordinarily not to be quantified in sentencing (Markarian v The Queen (2005) 79 ALJR 1048). So the question can only be whether, having regard to all those relevant factors, the sentence imposed falls so far outside the range of sentences for offences of the kind as to lead to the conclusion that some error in the exercise of the discretion must have been made even though it cannot be identified (Cranssen v The King (1936) 55 CLR 509; House v The King (1936) 55 CLR 499) [47].

3. It is necessary, in determining whether a sentence is manifestly excessive, to examine it from the perspective of the maximum sentence prescribed by law for the relevant offence, the standards of sentencing customarily observed with respect to that offence, the place which the criminal conduct occupies on the scale of seriousness of offences of the kind in question, and the personal circumstances of the offender.  See Chan (1989) 38 A Crim R 337, 342 (Malcolm CJ).

The totality principle

1. The totality principle usually applies where an offender is to be sentenced for more than one offence or where he or she is serving a term of imprisonment, at the time of sentencing, for another offence.  The principle comprises two aspects.  First, the total effective sentence imposed on the offender must bear a proper relationship to the overall criminality involved in all of the offences (including those, if any, in respect of which the offender is still serving a term of imprisonment), viewed in their entirety, having regard to all relevant circumstances including those referable to the offender personally (including, for example, the desirability of accommodating any wish to rehabilitate).  Secondly, the total effective sentence imposed on an offender should not constitute a 'crushing' sentence; that is, it should not destroy any reasonable expectation of useful life after release from custody.  Generally see Postiglione v The Queen (1997) 189 CLR 295, 307 ‑ 308 (McHugh J); Jarvis v The Queen (1993) 20 WAR 201, 216 (Anderson J); Johnson v The Queen [2004] HCA 15; (2004) 78 ALJR 616 [22]; Vlek v The Queen (Unreported, WASCA, Library No 990153, 29 March 1999), 12 (Anderson J); Carr v The State of Western Australia [2006] WASCA 125; (2006) 166 A Crim R 1 [6] (McLure JA), [66] (Buss JA).

2. Also, the totality principle may have application, in some limited circumstances, by way of analogy, where an offender has already served a term of imprisonment imposed for a prior offence.  See Mill v The Queen (1988) 166 CLR 59, 66; Vlek, 10 (Anderson J); Barnes v The State of Western Australia [2004] WASCA 258 [15]; Carr [7] (McLure JA).

3. It is plain, from the decision of the High Court in Pearce v The Queen (1998) 194 CLR 610, 624, that where an offender is being sentenced for more than one offence, the sentencing judge must determine an appropriate sentence for each offence and then consider questions of cumulation or concurrence, as well as the question of totality. There is, however, some flexibility in the application of the principle enunciated in Pearce.  See Johnson [26]; Markarian [27]. In R v Abboud [2005] NSWCCA 251, Rothman J (with whom Grove and Howie JJ agreed) said:

   It has often been stated that in sentencing an offender, an appropriate sentence must be fixed which considers all of the questions associated with the criminality of that offence. In the case of multiple sentences for multiple offences, the totality principles adumbrated by the High Court in Pearce v R (1998) 194 CLR 610 are well known and ought to be applied. I have already referred to the flexibility which nevertheless remains in a sentencing judge and was referred to in Johnson, supra. In Johnson, the joint judgment, cites, with approval, the judgment of the High Court in Mill (see paras [18] and [19] of Johnson) and deals then with an argument that Mill and Pearce are inconsistent or internally inconsistent.  The High Court makes clear that there is no inconsistency between Mill and Pearce and that each reflects the level of flexibility that must be retained by a sentencing judge in applying the principles of sentencing. Nevertheless, the approach in Mill is recognised as the orthodox approach to sentencing. It provides that a separate sentence will be imposed in relation to each separate offence, taking into account the matters that affect that sentence. It is only at the end of the process that the totality principle will be accommodated, preferably, by making the sentences wholly or partially concurrent [36].

Failure to give adequate weight to a relevant sentencing consideration

1. An alleged failure by a sentencing judge to give any or any adequate weight to a relevant sentencing consideration will constitute a specific error only if it amounts to a failure to exercise the discretion conferred on the judge.  See Mallet v Mallet (1984) 156 CLR 605, 614 (Gibbs CJ); Dinsdale, 330 (Gaudron and Gummow JJ).

Delay or change in circumstances

1. In R v Law [1996] 2 Qd R 63, the Court of Criminal Appeal of Queensland held that a lapse of time between the commission of an offence and the imposition of sentence for that offence should not be a mitigating factor in the sentencing process unless the delay has resulted in some unfairness to the offender. The court said:

   It is difficult to see why lapse of time between the commission of an offence and sentence should be a mitigating factor in sentence unless that delay has resulted in some unfairness to the offender.  There are two obvious cases where this will be so and in which, consequently, it has been said that that unfairness should mitigate the sentence which should otherwise be imposed.

   The first is where there is delay between the date of apprehension of the offender, or first indication to him by someone in authority that he is likely to be prosecuted, and the date of the sentence, in consequence of which the offender may have had his liberty curtailed or his reputation called into question or, at least, left in a state of uncertainty caused by a failure to prosecute his case more quickly: Duncan (1982) 9 A Crim R 354 is an example of that ... So too are Crawley (1981) 5 A Crim R 451 at 458, Jones and Harris (1989) 41 A Crim R 1 at 19 and Kane [1974] VR 750 at 767. The rationale for mitigation in these cases is analogous to that for which, in jurisdictions where a right to a speedy trial is constitutionally or legislatively guaranteed, proceedings may be stayed because of such delay. See for example Barker v Wing 407 US 514; US v Marion 404 US 307; Mills v R (1986) 26 CCC (3d) 481. See also Jago v District Court (NSW) (1989) 168 CLR 23. R v Braham (1994) 73 A Crim R 353, by contrast, is an example of a case in which the offender, because initially a nolle prosequi had been entered against him, probably thought during the subsequent period of delay until his further arrest, that 'he had escaped the clutches of the law' and in which in consequence, it was held that the delay should not mitigate the sentence: at 365-6.  See also R v Glennon [1993] 1 VR 97.

   The second is where the time between the commission of the offence and sentence is sufficient to enable the Court to see that the offender has become rehabilitated or that the rehabilitation process had made good progress.  That factor was referred to by Street CJ in Todd [1982] 2 NSWLR 517 at 519, 520 in a passage cited with approval by the High Court in Mill (1988) 166 CLR 59 at 64. See also Bell (1981) 5 A Crim R 347 at 351; Quinlivan (Crt of Crim.App.Vic. No. 291 of 1994). Duncan is also an example of this (66).

   Those observations were endorsed (correctly, in my respectful opinion) by Wheeler J (as her Honour then was), with whom Pidgeon and Ipp JJ agreed, in R v Leggett [2000] WASCA 327 [34] ‑ [35].

The relevance of an offender's psychiatric condition

1. In Orchard v The Queen [2004] WASCA 23, there was evidence from a psychiatrist that an offender, because of his ingestion of the drug, Interferon, was less able to exercise logical reasoning processes and to make rational judgments and choices. The Court of Criminal Appeal said:

   That necessarily reduced the applicant's moral culpability, albeit not, of course, his legal responsibility.  The law accepts that, where a mental disorder has contributed to the commission of an offence, the moral culpability of the offender will be lessened (and it may be appropriate to attach less significance to either or both of general and personal deterrence) and that that should, ordinarily at least, be reflected in the penalty imposed:  R v Tsiaras [1996] 1 VR 398 at 400; Lauritsen v The Queen (2000) 22 WAR 442 at 456 - 459; and R v Payne (2002) 131 A Crim R 432 at [40], [43] - [48] and [67] [18].

2. The critical feature which must be established before a psychiatric condition can mitigate punishment is a causal connection between the condition, on the one hand, and the commission of the offence, on the other, which reduces the offender's moral culpability in respect of the offence.  See Paparone [2000] WASCA 127; (2000) 112 A Crim R 190 [49] ‑ [53], per Murray J; T v The State of Western Australia [2005] WASCA 237 [87] ‑ [89], Roberts‑Smith JA (with whom McLure JA agreed). Also see Kiesey v The State of Western Australia [2005] WASCA 229 [56], Roberts‑Smith JA (with whom Steytler P and Pullin JA agreed).

The merits of the appeal

1. At the material time (2 September 1995), the maximum penalty prescribed by law for the offences the subject of counts 5 and 6 (that is, the counts of sexual penetration, without consent, in circumstances of aggravation) was imprisonment for 20 years. See s 326 of the Criminal Code. At the material time, the maximum penalty for the offence the subject of count 1 (that is, burglary) was imprisonment for 14 years. See s 401(1) of the Criminal Code. At the material time, the maximum penalty for the offences the subject of counts 2 and 3 (that is, unlawful detention) was imprisonment for 10 years. See s 333 of the Criminal Code. At the material time, the maximum penalty for the offence the subject of count 4 (that is, attempted sexual penetration, without consent, in circumstances of aggravation) was imprisonment for 10 years. See ss 326, 552 and 554(b) of the Criminal Code.

2. Clause 2(1) of Sch 1 of the Sentencing Act 1995 (WA), which is part of the transitional provisions introduced by the Sentencing Legislation Amendment and Repeal Act 2003 (WA) (the Amendment and Repeal Act), requires that a court which has decided to sentence an offender to a fixed term of imprisonment must impose a fixed term that is two‑thirds of the fixed term that would have been imposed under the law as it stood prior to the Amendment and Repeal Act. 

3. So, for example, the maximum sentence which may now be imposed for sexual penetration, without consent, in circumstances of aggravation, contrary to s 326 of the Criminal Code, is 13 years and 4 months.

4. The offences committed by the appellant were, without doubt, within the worst category of offences of the kind in question.  The appellant broke into the complainant's home in the early hours of the morning after rendering her telephone landline inoperable.  He wore a facial disguise and carried a knife.  After threatening the complainant and terrorising her with the knife, he proceeded to sexually penetrate her, without consent, in the presence of her child.  Later, he repeated the act in the child's absence.  Before the appellant left the complainant's home, he sought to intimidate her by asserting (falsely) that he had friends outside with knives.  During the attack, the complainant must have feared that the appellant might use the knife to kill or mutilate either or both of herself and her child.  The circumstances of the commission of the offences suggest they were, at least to some extent, planned and premeditated. 

5. The delay between the commission of the offences and the sentencing of the appellant has not resulted in any relevant unfairness to him.  The lapse of time from the commission of the offences to 4 November 2004 (when he was arrested and charged) was attributable to the appellant's success in avoiding detection.  The lapse of time from 4 November 2004 to 22 June 2007 was attributable almost entirely to the appellant's initial plea of not guilty.  He did not plead guilty until 11 April 2007.

6. The plea of guilty, the expression of some remorse, and the achievement of some rehabilitation through medical intervention between the commission of the offences and the sentencing of the appellant, were mitigating factors which the learned sentencing judge took into account.

7. Although it was not suggested (and nor could it have been suggested) that there was a causal connection between the appellant's psychiatric condition, on the one hand, and the commission of the offences, on the other, the learned sentencing judge recognised (correctly, in my respectful opinion) that the appellant should receive some discount for his cognitive difficulties, which would make his imprisonment more difficult than would otherwise be the case.

8. The learned sentencing judge referred to the appellant's criminal history, and specifically noted some of his prior convictions.  It is apparent that his Honour was cognizant of the appellant's record, and the absence of any evidence that he had continued to act violently. 

9. It is not sufficient for the appellant to establish that the learned sentencing judge erred in failing to allow a greater discount than 25% for matters of mitigation. He must establish that the total effective head sentence of 7 years and 6 months infringed the totality principle, or that an individual sentence was manifestly excessive, or that his Honour made some other material error of law or fact in the sentencing process. By s 31(3) and (4) of the Criminal Appeals Act 2004 (WA), relevantly, this court may allow an appeal against sentence only if, in its opinion, a different sentence should have been imposed.

10. In my opinion, ground 1 of the grounds of appeal is without merit.  The appellant has not established that the total effective head sentence of 7 years and 6 months infringed the totality principle.  The total effective head sentence was within the appropriate sentencing range.  Compare Rigby v The State of Western Australia [2005] WASCA 134 and Ugle v The State of Western Australia [2007] WASCA 199, and the cases there cited. It is unnecessary to reproduce in these reasons the facts of or decisions in Rigby and Ugle or the cases they discuss.  The dominant sentencing considerations for offences of the kind in question are punishment of the offender, and specific and general deterrence.

11. It might be observed that the appellant was fortunate, in a case within the worst category of offences of the kind in question and after taking into account all relevant mitigating factors, to have received a total effective head sentence that was only a little more than half of the maximum sentence that might have been imposed (after the Amendment and Repeal Act) for each count of sexual penetration, without consent, in circumstances of aggravation. 

12. The total effective head sentence bears a proper relationship to the overall criminality involved in all of the offences, viewed in their entirety, having regard to all relevant circumstances including those referable to the appellant personally.  Further, the total effective head sentence cannot be characterised as 'crushing', in the relevant sense.

13. In my opinion, ground 2 of the grounds of appeal is also without merit.  As I have mentioned, where an offender contends that a sentencing judge has failed to give any or any adequate weight to a relevant

sentencing consideration, any such failure will constitute a specific error only if it amounts to a failure to exercise the discretion conferred on the judge.  In the present case, it is not apparent from the learned sentencing judge's remarks in the course of sentencing or from the material before his Honour that he failed to exercise the discretion entrusted to him.

Conclusion

1. I would dismiss the appeal.

2. MILLER JA:  I agree with Buss JA.