Ward v The Queen - [2002] WASCA 335

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE FULL COURT (WA)

CITATION: WARD -v- THE QUEEN [2002] WASCA 335

CORAM: MURRAY J
TEMPLEMAN J
SHEPPARD AUJ

HEARD: 18 OCTOBER 2002

DELIVERED : 9 DECEMBER 2002

FILE NO/S: CCA 84 of 2001

BETWEEN: WILLIAM MAX WARD
Applicant
AND
THE QUEEN
Respondent

Catchwords:

Criminal law and procedure - Sentence - Applicant sentenced when an adult for offences of aggravated burglary and other serious offences against the elderly occupant of a house, including aggravated sexual assaults and robbery - Offences committed over three years earlier on applicant's 15th birthday - Aggregate term of six years imposed - Whether manifestly excessive - Whether offending the totality principle - Allowance for time spent in custody

Legislation:

Nil

Result:

Leave to appeal granted
Appeal allowed
Sentences varied

Category: B

Representation:

Counsel:

Applicant: Mr C L J Miocevich
Respondent: Mr D Dempster

Solicitors:

Applicant: Aboriginal Legal Service
Respondent: State Director of Public Prosecutions

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

Jarvis v The Queen (1993) 20 WAR 201
Mill v The Queen (1988) 166 CLR 59
Pearce v The Queen (1998) 194 CLR 610
Postiglione v The Queen (1997) 189 CLR 295
R v Curley [2002] WASCA 257
Ratcliff v The Queen, unreported; FCt SCt of WA; Library No 980651; 3 November 1998

Case(s) also cited:

Lowndes v R (1999) 195 CLR 665
R v "C" (a child) (1995) 83 A Crim R 561
Thompson v The Queen (1992) 8 WAR 387

MURRAY J: The applicant attained the age of 18 years on 11 February 2001. His conviction and punishment for the matters which are of present concern in these proceedings took place summarily before the President of the Children's Court. The trial was held on 8 and 9 May 2001. The applicant was sentenced on 11 May 2001. Although he was by then an adult, the offences for which he was convicted and punished were all committed while he was a child. The matters, therefore, remained within the exclusive jurisdiction of the Children's Court: Children's Court of Western Australia Act 1988 (WA), s 19(2). By s 19B(4)(c) and (d) of that Act, the trial was conducted as if a trial on indictment by a Judge alone without a jury and, for the purposes of punishment of the offences, the applicant was deemed to have been convicted on indictment.
The appeal to this Court is brought under s 43 of the Children's Court Act. Strictly speaking, it is to the Full Court, which is invested with the powers of the Court of Criminal Appeal. Generally speaking, the relevant provisions of Ch 69 of the Criminal Code, dealing with appeals to the Court of Criminal Appeal, apply and, relevantly to this case, although the provisions of s 688 are excluded from application, by s 43(3)(b) an appeal against a sentence or penalty may only be brought with the leave of the Full Court or upon the certificate of the Judge who tried the matter. No such certificate appears to have been granted in this case.
The offences with which this application for leave is concerned, to which the applicant pleaded not guilty and of which he was convicted by the President of the Court, were all committed on 11 February 1998, the applicant's 15th birthday. The applicant was then living in Katanning. The victim of these offences was the applicant's next door neighbour. She was a frail lady of 82 years of age. Her frailty would have been very apparent because she required a walking frame to get about. She lived alone. A relatively short period before these offences were committed, she had suffered a stroke and a heart attack.
At about 8.30 pm on the night in question, the complainant was watching television. The telephone rang twice. The person on the other end of the telephone did not speak on either occasion when she answered. The complainant decided to retire to bed. She changed into a nightdress, leaving her underwear on. As she was seated near the phone, waiting to see if it would ring again, a person came to her from behind. Although the applicant denied at trial that it was him, the trial Judge concluded that he was the person who had entered the complainant's house, knowing that she was present at the time. He placed a towel around her head and tied it securely. He tied her hands behind her back. By those means, she was effectively disabled from resistance and rendered incapable of later making any identification of the applicant.
He forced the complainant to the floor, lifted her nightdress and commenced to rub her on her breasts. He then assisted her to her feet and took her to her bedroom. The garments she was wearing were removed. He placed her on the bed and inserted his fingers in her vagina. He then briefly penetrated her vagina with his penis despite her pleas not to do so. When that was over, he demanded money. From her purse on her walking frame, she extracted a $50 note. The applicant took it and left.
He was not charged with any offence until 15 December 2000, but he was then charged with aggravated burglary, disabling the complainant in order to commit the indictable offence of sexual assault, aggravated indecent assault and two counts of aggravated sexual assault, concerned with the acts of digital and penile penetration respectively. Finally, he was charged with having robbed her of the sum of $50.
Having been convicted of all those offences, the applicant was sentenced to imprisonment for one year for the aggravated burglary, one year for the offence of disabling with intent to commit an offence, two years for the aggravated indecent assault, three years for the initial digital penetration, four years for the penile penetration and one year for the robbery. The sentences for the offences of aggravated burglary, disabling and the sexual assault by penile penetration were ordered to be served cumulatively, resulting in an aggregate term of six years imprisonment. Eligibility for parole was ordered.
At the same time, the applicant was sentenced by the Judge for an offence of aggravated burglary committed on 12 November 2000. In that case, the dwelling house in question was entered late at night through an open laundry door while, to the applicant's knowledge, the female occupant was home alone. There was evidence that the applicant intended to steal inside the house. For that offence, a further term of imprisonment for one year, to be served cumulatively, was imposed. The aggregate term, therefore, became one of seven years imprisonment with eligibility for parole.
Finally, there were two relatively minor offences before the Court, one of stealing items of personal property valued at about $60 for which a sentence of three months imprisonment was imposed, and one of possession of a knife with intent to injure committed on 18 July 2000 for which imprisonment for one month was the sentence. That was an offence committed in a railway carriage when the applicant was observed by railway special constables to have the knife stuck in his belt. He refused to give them the knife, which was finally taken from him after a struggle during which he repeatedly threatened to stab the officers. However, these offences need not concern this Court in view of the sentences imposed and the fact that there is no application for leave to appeal in respect of them.
The application is, in fact, confined to the sentences imposed for the six offences committed on 11 February 1998. There is no challenge to the cumulative term of imprisonment for one year imposed for the burglary committed on 12 November 2000.
The application is brought on two grounds. The first alleges that the sentences were manifestly excessive, particularly having regard to the applicant's age at the time of the commission of the offences and to his other antecedents. The second ground relies upon the totality principle and the contention that in their aggregate, the terms imposed resulted in a "crushing sentence". The form of application boldly and inappropriately suggests that the sentence imposed should have been in the order of two years duration with eligibility for parole.
However, when the matter was argued, counsel said that the seriousness of the offences meant that it had to be conceded that the individual terms were not manifestly excessive and counsel relied upon the totality principle and the alleged failure to take into consideration time spent in custody, to establish that the sentences were manifestly excessive. I propose to discuss the latter aspect separately.
Turning to the question of the total effect of what occurred, I note that in the sentencing Judge's remarks on sentence, her Honour accurately summarised the facts and commented upon the extreme seriousness of the offences, made manifest by even a brief summary of what occurred. Her Honour had before her, victim impact statements from the complainant and members of her family. The complainant had died just before the matter came on for trial, but the Judge noted that she had, in effect, been driven out of her home in Katanning and had moved to a retirement village in the suburb of Perth. She made that decision because, although she had lived in Katanning for very many years and had a wide circle of friends there, "her sense of security, confidence and independence were destroyed". In referring to the pain experienced by family members, her Honour said that it was difficult to adequately describe the extent of anger and outrage provoked by the crimes.
Apart from the matters before her, the sentencing Judge noted that the applicant had not accumulated a record of great substance, although there were some previous home burglaries. She said that none of the offences on his record were of a sexual nature, nor of a serious violent nature, although she noted what appeared to be a longstanding drug problem which seemed to have developed since March 1998. Despite the applicant's personal difficulties, he had the benefit of a longstanding de facto relationship and he had a 14‑month‑old daughter. Supportive letters had been received by the Court from the applicant's de facto wife and his parents, to which letters her Honour referred.
Her Honour sought in vain for an explanation for the commission of the offences of which, of course, the applicant denied he was the perpetrator. In view of this denial, he had displayed no remorse for his conduct. In my opinion, her Honour was correct in saying that she could see no mitigating factors in relation to the offences committed in February 1998 apart from the fact that they were committed upon the applicant's 15th birthday. On the other hand, her Honour correctly, in my view, observed that she was required to take into account not only the applicant's situation as at the time of the commission of the offences, but she was also to have regard to the history and the applicant's antecedents as they were at the time when he came to be sentenced.
The Judge concluded her sentencing remarks by saying:
"It is abundantly clear that because of the serious nature of the offences committed in February 1998, only a term of custody is an appropriate sentence in this case. There is of course a need to protect the community. The circumstances of these offences demand that the sentences of imprisonment reflect the seriousness of the offences and provide both personal and general deterrence in order to protect the community and in particular in order to protect the elderly and vulnerable members of our community.
In arriving at an appropriate sentence, I have taken into account the range of custodial sentences ordinarily imposed on a young offender of the age that the offender was at the time of the commission of the offences. I have taken into account what his circumstances were at that time and his present circumstances as detailed in the written pre‑sentence report and as outlined by Mr Hope."
Her Honour then imposed the sentences to which I have referred, saying that in fixing the aggregate term, she had taken into account the totality principle, particularly bearing in mind the order that the term of imprisonment for one year imposed for the aggravated burglary committed on 12 November 2000 was to be served cumulatively upon the term of six years imprisonment previously fixed for the offences committed on 11 February 1998.
Totality is a well understood concept, recently discussed by the High Court in Postiglione v The Queen (1997) 189 CLR 295. Where an offender is before the court to be sentenced for a number of offences at the one time, whether those offences were committed on one occasion or at different times, the court is first to consider the imposition of sentences of imprisonment properly proportionate to the individual offences committed, having regard to all relevant circumstances of aggravation and mitigation concerned both with the offences committed and the offender. That having been done, as the High Court made clear in Pearce v The Queen (1998) 194 CLR 610 at 624:
"A Judge sentencing an offender for more than one offence must fix an appropriate sentence for each offence and then consider questions of cumulation or concurrence, as well, of course, as questions of totality."
In Jarvis v The Queen (1993) 20 WAR 201, this Court applied the decision of the High Court in Mill v The Queen (1988) 166 CLR 59 when holding that the totality principle requires that where there is a multiplicity of offences and sentences to be passed, the total effect of the sentences must be proportionate to the totality of the criminal behaviour. The crucial thing is that the sentences are to be served at the one time or consecutively and it matters not that the criminal conduct of the offender is comprised wholly or in part of unrelated offences.
However, there is a limit to the impact of the totality principle on the aggregate term to be imposed, which will be understood when it is appreciated that when considering the total effect of the sentences to be imposed and the proper degree of accumulation to which effect is desired to be given, the search remains one for a total term of imprisonment proportionate to the overall criminality evinced by the offender. As Ipp J put it at 207, "... the concept that a richly deserved sentence should be reduced because the offender may feel crushed by it aptly illustrates its limitations as a mitigatory force".
In this case, her Honour said that she had regard to the totality principle in fixing the total term of six years imprisonment in the context of the imposition of the additional year for the unrelated burglary. For my part, having regard both to the circumstances of the commission of the offences and the personal circumstances of the applicant and, particularly, having regard to his age at the time of the commission of the offences, I remain quite unable to take the view that the final result of the sentencing exercise is so disproportionate to the gravity of the total criminality involved as to require this Court to conclude that the exercise of discretion by her Honour has so manifestly miscarried as to compel this Court to intervene to quash the sentences imposed and sentence anew for the offences in question.
That, I think, is an observation which I should make subject to the applicant's reliance on the point that her Honour the sentencing Judge erred in failing to take into account any time spent in custody on remand from 21 November 2000 to 10 May 2001. The question was discussed at some length during the sentencing proceedings and her Honour was well aware, as she said, that the applicant had been in custody since 21 November 2000. However, in concluding her sentencing remarks, her Honour referred to the relevant provision, the Sentencing Act 1995 (WA), s 87 and said that she was "not disposed to backdate the sentences as I am not persuaded that the time he has spent in custody was in relation solely to these offences".
The history of time spent in custody is a little confusing, but appears to be as follows.
On 21 November 2000, the applicant, who was then still a child, was remanded in custody by the Children's Court in respect of a number of matters, including the charge of burglary committed on 12 November 2000, for which on 11 May 2001 the applicant received the cumulative sentence of imprisonment for one year. There were other matters which we were told were outstanding warrants, quite unconnected with the matters before the Court on 11 May 2001. On 15 December 2000, the applicant had his first appearance charged with the six offences committed on 11 February 1998. He was remanded in custody in respect of those matters but continued to be so remanded in relation to other unconnected matters.
On 12 January 2001, while still legally a child, the applicant appeared in the Perth Children's Court on a variety of charges, including those the subject of this appeal, but also including numerous charges which had nothing to do with the matters before the Court on 11 May 2001. The charges in respect of the six offences committed on 11 February 1998 and the burglary committed on 12 November 2000 were remanded to pre‑trial status conferences. As I understand it, the matters which were dealt with substantively had previously been the subject of a conditional release order. As, by 12 January 2001, the order had expired, the Court took no further action and imposed no substantive punishment in relation to the offences in question. Those matters, therefore, dropped away.
The applicant was again before the Court on 2 March 2001, by which time, of course, he was legally an adult. Most of the matters then dealt with involved breaches of bail undertakings. On that occasion, the Judge commented that the matters should be disposed of without further penalty due to the time spent in custody on remand which her Honour thought to be "far in excess of what otherwise would have been imposed for these sorts of offences".
On 17 April 2001, the applicant appeared in the Children's Court at Katanning to answer charges of assault and assault occasioning bodily harm committed against the same complainant on the night of 18/19 September 1999. It appears that the matters first came before the Court in October 1999 and the applicant was thereafter generally on bail, although on occasions, he did not appear in answer to the bail. The last such occasion was on 18 October 2000. The record shows that a bench warrant was issued for the applicant's arrest, that he appeared on 21 November 2000 and was thereafter remanded in custody. It is accepted that when the applicant was dealt with in respect of these charges on 17 April 2001, they were dismissed having regard to the time that he had spent in custody on remand. The next appearance before the Court was in respect of the matters the subject of this appeal for which the applicant was sentenced on 11 May 2001.
By the Young Offenders Act 1994 (WA), s 50B the applicant, being an adult at the time he was sentenced, was to be dealt with under the provisions of the Sentencing Act 1995 (WA). The relevant section of that Act dealing with making an allowance for time in custody is s 87. The limitation upon the capacity to take time spent on remand into account when passing sentence, which is relevant for present purposes, is that under s 87(a), that may only be done if the offender "has previously spent time in custody in respect of that offence and for no other reason".
As this Court made clear in R v Curley [2002] WASCA 257, the section will apply where an offender is to be sentenced for a number of offences on the one occasion and has spent time in custody on remand in respect of all of those offences. However, as has been seen, that was not solely the case here. The applicant had been in custody for a variety of offences, including, but not limited to, those for which he was sentenced on 11 May 2001. On 2 March 2001 and 17 April 2001, he was dealt with in such a manner as to provide credit in respect of such periods of remand although not, of course, by the backdating of any sentence.

Nonetheless, in my opinion, the Court was not, on 11 May 2001, empowered to take into account time spent in custody on remand prior to 17 April 2001. Her Honour's view about the period from 21 November 2000 to 17 April 2001 was, in my respectful opinion, correct, but her reference during her sentencing remarks to the fact that the applicant had been in custody in November 2000 showed that her Honour nonetheless had regard to this period in fixing the sentences she imposed and in structuring them so as to make provision for some only of the sentences passed to be served cumulatively.
As the respondent points out, even where there is a power under s 87 to take time in custody on remand into account, the Court is invested with a discretion whether or not to do so. The sentencing Judge had that discretion to exercise in respect of the period between 17 April and 11 May 2001, during which period, as I understand it, the applicant's custody related solely to the matters for which sentence was passed: Ratcliff v The Queen, unreported; FCt SCt of WA; Library No 980651; 3 November 1998. In my opinion, having regard to the remark made by her Honour, she neglected to exercise her discretion for this period.
No reason has been suggested why the sentences should not have been backdated to commence on 17 April 2001 and, I think that should have been done. I would, therefore, grant leave to appeal and allow the appeal, only to the extent of varying the orders made by the sentencing Judge so as to add the order that the sentences imposed by her Honour should commence to be served on 17 April 2001. I would take that course, despite the relatively short period involved, because it appears to me that a discrete error has been made in this regard.

TEMPLEMAN J: I have had the advantage of reading in draft the reasons published by Murray J.
I agree with his Honour that leave to appeal should be granted and the appeal allowed, but only to the extent of backdating to 17 April 2001, the sentences of imprisonment imposed on the appellant on 11 May 2001.
I agree also that, despite the appellant's young age, the sentences totalling six years imprisonment were by no means excessive, having regard to the extreme seriousness of the offences he committed against the elderly, frail and vulnerable complainant on 11 February 1998.
SHEPPARD AUJ: I have had the advantage of reading the reasons for judgment of Murray J. I agree with them and there is nothing I wish to add.