Wheeler v The State of Western Australia
[2008] WASCA 111
•14 MAY 2008
WHEELER -v- THE STATE OF WESTERN AUSTRALIA [2008] WASCA 111
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2008] WASCA 111 | |
| THE COURT OF APPEAL (WA) | |||
| Case No: | CACR:159/2007 | 17 APRIL 2008 | |
| Coram: | STEYTLER P McLURE JA MILLER JA | 14/05/08 | |
| 13 | Judgment Part: | 1 of 1 | |
| Result: | Application for extension of time granted Appeal dismissed | ||
| C | |||
| PDF Version |
| Parties: | ROBBIE SEBASTIAN WHEELER THE STATE OF WESTERN AUSTRALIA |
Catchwords: | Criminal law Sentencing Sentencing of 23 years 8 months' imprisonment Totality principle Consideration of personal circumstances of appellant Psychiatric and psychological reports Turns on own facts |
Legislation: | Sentencing Legislation Amendment and Repeal Act 2003 (WA) |
Case References: | Hart v The Queen [2003] WASCA 265 Jarvis v The Queen (1998) 20 WAR 201 Keating v The State of Western Australia [2007] WASCA 98 Martino v The State of Western Australia [2006] WASCA 78 R v Holder (1983) 3 NSWLR 245 Williams v The Queen (1996) 17 WAR 17 Woods v The Queen (1994) 14 WAR 341 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : WHEELER -v- THE STATE OF WESTERN AUSTRALIA [2008] WASCA 111 CORAM : STEYTLER P
- McLURE JA
MILLER JA
- Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram : BOWDEN J
File No : IND 633 of 2006, IND 636 of 2006
Catchwords:
Criminal law - Sentencing - Sentencing of 23 years 8 months' imprisonment - Totality principle - Consideration of personal circumstances of appellant - Psychiatric and psychological reports - Turns on own facts
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Legislation:
Sentencing Legislation Amendment and Repeal Act 2003 (WA)
Result:
Application for extension of time granted
Appeal dismissed
Category: C
Representation:
Counsel:
Appellant : Mr S B Watters
Respondent : Mr J A Scholz
Solicitors:
Appellant : Legal Aid (WA)
Respondent : Director of Public Prosecutions (WA)
Case(s) referred to in judgment(s):
Hart v The Queen [2003] WASCA 265
Jarvis v The Queen (1998) 20 WAR 201
Keating v The State of Western Australia [2007] WASCA 98
Martino v The State of Western Australia [2006] WASCA 78
R v Holder (1983) 3 NSWLR 245
Williams v The Queen (1996) 17 WAR 17
Woods v The Queen (1994) 14 WAR 341
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1 STEYTLER P: The appellant has been convicted on nine counts of aggravated indecent dealing, seven counts of sexual penetration and one count of each of attempted sexual penetration, sexual procurement, encouraging an indecent act, supplying cannabis, kidnapping and conspiracy to commit wilful murder. In each case the victim was a 14-year-old boy. The appellant was sentenced to a total term of 23 years and 8 months' imprisonment. He was declared to be eligible for parole. He appeals against the sentence of imprisonment imposed upon him.
The offending behaviour
2 The offences were committed over a period of 21 days. The boy was targeted at random for the purpose of satisfying the sexual desires of the appellant and a co-offender, Victor Urquhart. The two men saw the boy near a train station in Kelmscott. When the boy walked down Albany Highway he heard a person call out to him. He turned around and walked towards that person. It was the appellant. The appellant asked the boy the time and, while the boy was examining his mobile telephone in order to ascertain the time, he was grabbed by the appellant. The appellant placed his hand over the boy's mouth and began to drag him away. Urquhart assisted the appellant. The two men dragged the boy into their house. They took him into the front bedroom. The appellant held the boy on the bed while Urquhart placed handcuffs around the boy's ankles and secured him to the bed. Urquhart then tied the boy's arms to the bed with rope. The two men gagged the boy by shoving a sock or handkerchief into his mouth and securing it with tape.
3 Over the ensuing 21 days the two men committed a series of offences against the boy which the sentencing judge rightly described as offences of 'staggering depravity'. It is unnecessary to provide details of the offending behaviour. They are fully set out in the sentencing remarks of the sentencing judge. However, I will adopt his summary of the offences, as follows (ts 615 - 616):
During the period of the 21 days, either or both of [the appellant and Urquhart] inserted beads and carrots into your own anus, masturbated in front of him, used a penis pump on your respective penises in his presence, viewed pornographic videos, you forced beads into the boy's anus, forced his penis into a penis pump, forced the boy to engage in acts of fellatio and performed fellatio on him.
In addition to this, an attempt was made to have anal intercourse with him by you [the appellant] and drugs were supplied to him. During the course of the 21 days you showed little if any concern for the welfare of the boy, forcing him to defecate in a red bucket, urinate in a container, permitting
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- him only one shower and one bath over the period, keeping him bound hand and foot for the first three days and then shackled every single night by foot to the bed for the remainder of his ordeal.
Each of you at various times described the boy as crying, asking to go home, looking scared and being very subdued. Indeed, at one time the boy appears to have come out of his room still shackled to the bed post in an effort to escape prior to being ordered back to the room. The boy could do absolutely nothing about his ordeal. He was, as you, [the appellant], said in your video record of interview, crying and asking to go home when handcuffs were placed on him.
4 The sentencing judge found that the appellant had been the more dominant of the two offenders. His fantasies were found to have been the cause of the offending behaviour. He acknowledged to police that it had been his fantasy to 'have some kid in [his] house and rape him every day, every minute of the day'. In notes found by police, the appellant had described, in graphic language, what he wanted to do to young victims ('younger the better'). The notes were accompanied by drawings.
5 No effort was made by either offender to release the boy or to notify his parents or anyone else that he was still alive. It was only when the police raided the house that he was found. The two offenders were found by a jury to have entered into a conspiracy to murder the boy. The sentencing judge was not satisfied beyond reasonable doubt that the conspiracy to murder the boy was entered into as part of the initial plan. Nor was he able to find why it was that the conspiracy was not carried into effect. He said, in that respect (ts 628):
Whether, when push came to shove, you could not do it or you needed more time to actually carry the conspiracy into effect or you had not finished playing with the boy as suggested by the state in their closing, in my opinion is both impossible and unnecessary to ascertain.
6 However, he found that the conspiracy was entered into once the two men realised their 'dire predicament'. In his interview with the police, the appellant said that, basically from the first night, he realised that if the boy was released and told anyone what had happened, he would be in serious trouble. He acknowledged that he could not think of any way of letting the boy go with 'us getting out of it'. He accepted that he had said to Urquhart, 'Let's get rid of him' and that he had looked for places to dispose of the body. He had marked a road directory with suitable places. He also wrote a note, found by the police, in which he said, 'Won't acid take care of the body so it's just bones?'. The sentencing judge found that the appellant was the dominant party and the instigator of the plan and that
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- Urquhart, 'acting … out of love [for the appellant] and because [he] realised the predicament [they] were in, went along with the plan' (ts 628).
7 The sentencing judge found that the criminality of the two men was 'of the highest order' and 'at the top range of seriousness'. He found that both had displayed a callous disregard for the boy. He gave as an illustration the fact that, when telling the boy to engage in a particular degrading act, the appellant had said 'Use these or I will fucking re-arrange your face you little turd'. He said that, having watched video records of interview of the two men by police, it was 'staggering to see the lack of empathy that both … [had showed] towards [their] victim'.
The appellant's pleas
8 The appellant was arrested and taken into custody on 19 September 2005. On 18 July 2006 he was charged with the offences. He pleaded not guilty to all of them. That indictment was discontinued and a fresh indictment, containing 21 counts against the appellant, was presented on 24 October 2006. The extra counts were based upon admissions made by the appellant in the course of the interview by police. He pleaded guilty to all counts save for that charging him with conspiracy to commit wilful murder, to which he pleaded not guilty. On 19 April 2007, after an 8-day trial, he was convicted of that offence.
9 The sentencing judge took the pleas of guilty into account. He treated them as early pleas. He also found (ts 618) that the appellant had been convicted on eight counts as a result of his voluntary disclosures (these were six counts of sexual penetration, one of attempted sexual penetration and one of supplying cannabis). He accepted that it was unlikely that the appellant's guilt concerning those offences would otherwise have been discovered. He was also prepared to accept that the pleas of guilty were acts of genuine remorse and that the appellant was 'prepared to take steps to attempt to commence a path of rehabilitation' (ts 619).
The appellant's personal circumstances
10 The appellant was 41 years old at the time of committing the offences. He had a relatively minor criminal record. At the time of the commission of the offences, and for some five years prior to that, he had been in a relationship with Urquhart. The sentencing judge took into account a psychiatric report, a psychological report and a pre-sentence report that had been prepared in respect of the appellant.
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The pre-sentence report
11 The pre-sentence report reveals that the appellant sought to rationalise, and in some respects to justify, his offending behaviour. He 'did not demonstrate any victim empathy at the time of the interview in relation to the pain and trauma the victim reportedly experienced'. He said that he had been 'high on amphetamines' at the time of offending. He had by then been using cannabis and amphetamines for some time. He provided a history of being sexually abused by his grandfather between the ages of 8 and 10. He said that he had been physically abused by his father. He had also endured physical abuse at the hands of his partner in the course of his first significant relationship with a man. This endured for some years from the age of 20 onwards.
Psychologist's report
12 The report prepared by a psychologist, Dr Lilian Edmands, reveals a similar history. The appellant told Dr Edmands, also, of a sexual relationship that he had had with an elderly man for some four to five years from the age of about 11 or 12.
13 Dr Edmand's report records that the appellant 'at times seemed to show some degree of empathy towards the victim, although this was seemingly secondary to his own emotional and physical well-being'. He seemed also 'to possibly have enjoyed', and to continue to enjoy, the notoriety his offending behaviour had brought. His description, to Dr Edmands, of his offending behaviour showed some minimising of his responsibilities.
14 In the past, the appellant had, for a time, undergone hormone therapy with a view to gender re-assignment surgery. The report records that he may have experienced, and apparently still does experience, identity crises, including general identity confusion as well as confusion around his gender identity.
15 The appellant claimed to have abused a range of drugs. When he used amphetamines he would become highly promiscuous and 'do silly things'. He said that he had attempted self-harm on a number of occasions (although Dr Edmands said that 'there appeared an element of theatricality and self-dramatisation' in relation to these disclosures).
16 The appellant told Dr Edmands of a number of his fantasies. These were of a depraved and sometimes bizarre kind, including fantasies concerning rape of male children by adult males. There was evidence of
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- 'paraphilias', including paedophilia, fetishes, transvestic fetishes, coprophilia and sexual sadism. He presented a high risk of re-offending and had significant treatment needs in the domains of sexual interests, distorted attitudes and social/emotional function.
The psychiatric report
17 The appellant provided a psychiatrist, Dr Peter Wynn Owen, with a similar history to that given by him to the authors of the pre-sentence and psychological reports. Dr Wynn Owen diagnosed him with 'Cluster B Personality Disorder', with antisocial, borderline and histrionic traits. He also reached a diagnosis of sexual sadism. He found that the appellant had moderate difficulty in social and occupational functioning. Scores on the STATIC-99 recidivism estimates revealed that he was in the moderate to high risk category of re-offending.
18 The report reveals that the appellant scored 27 on the 'Revised Psychopathy Checklist'. Although a score of 30 has been accepted as being the point at which an individual is identified as a psychopath, Dr Wynn Owen reveals that this is not a sharp dividing line. Scores of 25 have been used in the British and Swedish criminal justice systems for prediction and other purposes. The report suggests that the presence of psychopathy in a sexual offender increases the likelihood of sexual re-offending and that the appellant's score of 27 is 'predictive of a high risk of sexual re-offending as well as indicating a medium to high level of psychopathy'. The psychopathic traits are not treatable.
19 Dr Wynn Owen says that the appellant's risk of re-offending would be further increased by ongoing drug use. His report reveals that the appellant has continued to use marijuana in prison and is therefore likely to do so on release. Dr Wynn Owen has no doubt that, on release, the appellant will represent a danger to society, or part of it.
20 The report also reveals that the appellant attributes his behaviour almost entirely to amphetamine use. However, Dr Wynn Owen expresses the opinion that, while this may have contributed to impulsivity, 'the drug use was not causal and is an example of [the appellant] seeking to attribute blame for his behaviour to an external cause'. He concludes that the appellant is untrustworthy, lies often and seems to care little about being caught out. He says that the appellant's behaviour in prison suggests a disregard for authority and a lack of recognition of the seriousness of his situation. The appellant's usual behaviour is said to have been unmodified by imprisonment to date. The penultimate section of Dr Wynn Owen's report concludes with the following paragraphs:
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- [The appellant] appears to have no understanding of the effects his offences have had and will continue to have on his victim. Directly questioned about remorse he gives a 'pat' answer. There is no depth to this answer and it becomes rapidly apparent on further questioning that his concerns are for himself and he primarily sees the whole incident from that perspective.
In summary [the appellant] has a Personality Disorder characterised mainly by failure to conform to social norms, deceitfulness, failure to plan or recognise consequences and a profound lack of remorse or empathy.
21 Dr Wynn Owen recommends that, because psychopathy is not a treatable entity, it is appropriate to focus on the dynamic risk areas which, if addressed in prison, may mitigate risk once released. These are participation in a sex offender treatment programme and participation in a drug treatment programme.
Sentences imposed
22 The sentencing judge imposed a sentence of 5 years' imprisonment in respect of the offence of conspiracy to commit wilful murder (count 1 on the indictment). He imposed a term of 8 years and 10 months' imprisonment in respect of the kidnapping offence, after allowing a 25% reduction for the plea of guilty (count 2). On each of counts 3, 6, 7, 8, 10, 14 and 16 (all counts of aggravated indecent dealing) he imposed a term of 10 months' imprisonment. In each case, he had allowed a 25% reduction for the plea of guilty.
23 On count 4 (also an aggravated indecent dealing) he imposed a term of 12 months' imprisonment. On count 12 (the offence of sexual procurement) he imposed a term of 3 years and 3 months' imprisonment. On count 15 (aggravated indecent dealing) he imposed a term of 2 years' imprisonment. On count 18 (encouraging an indecent act) he imposed a term of 10 months' imprisonment. On count 19 (sexual penetration) he imposed a term of 3 years' imprisonment. On count 20 (supply of cannabis) he imposed a term of 14 months' imprisonment. Each of these terms was arrived at after allowing a 25% discount for the plea of guilty.
24 On each of counts 21, 22, 24, 25, 26 and 27 (all sexual penetration counts) he imposed a term of 2 years and 7 months' imprisonment. A similar term was imposed in respect of count 23 (attempted sexual penetration). Each of the terms of imprisonment imposed in respect of counts 20 to 27 was arrived at after allowing a discount of 40% in respect of the pleas of guilty and the fact that the offences had only come to light as a result of the appellant's voluntary disclosures.
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25 Each of the sentences imposed by the sentencing judge took account of the one-third reduction required by the transitional provisions in sch 1 of the Sentencing Legislation Amendment and Repeal Act 2003 (WA).
26 When the sentencing judge came to consider the issue of totality, he concluded that the appropriate outcome was that the terms imposed on counts 1, 2, 8, 12, 15, 20 and 22 should be served cumulatively with each other and that the remaining terms should be served concurrently with those terms. This gave rise to a total term of 23 years and 8 months' imprisonment. Prior to the operation of the transitional provisions this would have been a total term of 35 years and 6 months' imprisonment.
Ground of appeal
27 There is only one ground of appeal. After amendment, it reads as follows:
1. The learned Judge erred in imposing a total effective sentence which infringed the principle of totality, having regard to the overall criminality involved in the various offences when viewed in their entirety and in all the circumstances of the case, including those referrable to the appellant personally.
Particulars of appellant's personal circumstances
The applicant had:
(a) suffered childhood abuse.
(b) suffered from mental illness.
…
(e) had good antecedents and a minor record of offending.
28 There are two limbs to the totality principle. The first 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, 352 (Anderson J, Malcolm CJ & Seaman J concurring). The second 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] (McLure JA, Wheeler & Buss JJA
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- concurring). 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).
29 Application of the totality principle ordinarily results in an aggregate sentence that is less than that which would have been arrived at by adding up all of the terms imposed in respect of the individual offences: R v Holder (1983) 3 NSWLR 245, 260 (Street CJ, O'Brien CJ of Cr D concurring). A rationale underpinning the totality principle is that there is assumed rehabilitation and reduced demand for retribution after the initial sentences have been served. Where the totality principle comes into effect, the manner of making up the ultimate aggregate is not important: R v Holder, 260.
30 The total sentence imposed in this case was severe, by any measure. However, the offences committed were extremely serious. The offence of kidnapping (which, as I have said, was found by the sentencing judge to be at the top end of the scale of offending) carries a maximum term of 20 years' imprisonment before application of the transitional provisions. Each of the offences of conspiracy to commit wilful murder, sexual procurement and sexual penetration carries a maximum term of 14 years' imprisonment prior to the operation of the transitional provisions. Each of the remaining offences was subject to a maximum term of 7 years' imprisonment prior to the operation of the transitional provisions. I have said that the sexual offending was described by the sentencing judge as at the top of the range. The appellant's behaviour was brutal, callous, degrading and sustained. Although the sentencing judge was prepared to recognise that there was remorse, the psychological and psychiatric reports suggest that the appellant, even now, is more concerned for his own well-being than he is for that of his victim.
31 Aside from the appellant's pleas of guilty and co-operation with police, there was not much to be said by way of mitigation. Some account must be taken of the circumstances that led to his offending behaviour, including the fact that he has himself been maltreated at the hands of others, but this serves more to explain than to excuse his offending behaviour. Such mitigation as there is arising from his minor criminal record and his psychiatric difficulties is outweighed by his gloomy prospects of rehabilitation and the risk that he presents to the community. There is no suggestion that his mental problems were such as to diminish his understanding of the nature and consequences of his actions or his ability to control his behaviour. Nor is there any suggestion that his mental condition is such as to make him an inappropriate vehicle for
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- general deterrence or that it will make a prison term harder for him than for others. Also, I have said that Dr Wynn Owen, although accepting that amphetamine intoxication may have contributed to impulsivity, considered that the appellant's drug abuse was not causal and that the appellant's suggestions that this had contributed to his offending behaviour was an example of him seeking to attribute blame to an external cause.
32 We were referred to a number of cases that were said to illustrate the severity (in the case of counsel for the appellant) or appropriateness (in the case of counsel for the respondent) of the total sentence imposed in this case. However, as might be anticipated, none was truly comparable. Counsel for the appellant suggested in this respect, that the total sentence imposed was more severe than some sentences imposed in respect of murder, given that murderers are often released on parole. However, it is important to bear two points in mind. The first is that a term of 'life imprisonment' is imposed in cases of wilful murder and, as Owen J (Kennedy & Pidgeon JJ concurring) said in Williams v The Queen (1996) 17 WAR 17, 25, life imprisonment is 'just that: imprisonment for life'. Owen J went on to say that it is the most severe penalty available to a sentencing judge under the criminal law and the fact that parole is a possibility does not mean that an offender will be admitted to parole at or shortly after the expiry of the minimum term that has been set, or at any particular time after that, or at all. The second point is that this is not a case in which the sentencing judge was required, for sentencing purposes, to compare one horrendous crime with another, even more horrendous, crime. The court was required to set an appropriate total penalty for a series of crimes, all of them serious.
33 Severe penalties have been imposed in other cases of serious criminality falling short of murder. I will give two examples.
34 In Hart v The Queen [2003] WASCA 265, the appellant had been convicted of 31 offences, including offences of aggravated burglary, deprivation of liberty and various sexual assaults and attempted sexual assaults on adult women. The offences were committed on four occasions against different complainants. The appellant was 35 years of age at the time of sentencing. He had pleaded guilty to all charges on the fast-track system. His offending behaviour had been 'fuelled' by amphetamines. The appellant had constantly offended since turning 18, with numerous convictions for burglary and some for violence, but no prior convictions in respect of sexual offences. He presented a high risk of re-offending unless he was successful in addressing significant psychological and
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- behavioural issues. His offences were very serious. They involved, in each case, a forced intrusion by the appellant into the complainant's home. He threatened to use a knife on each complainant. In one case, he may have threatened the complainant with a screwdriver. The sentencing judge, in Hart, imposed a total term of 34 years' imprisonment. After a successful appeal, this was reduced to 28 years' imprisonment (the equivalent of a total term of 18 years and 8 months' imprisonment after the operation of the transitional provisions).
35 While comparisons of this kind are invidious, it seems to me that the offending behaviour in the present case was more serious than that in Hart, even though the offending in that case involved multiple complainants. The complainant in the present case was a child. The detention endured for 21 days, during which time the child was shackled, frightened and subject to depraved, degrading and humiliating acts. The acts perpetrated by the appellant were done in the presence of, or with the assistance of, a co-offender. The two men conspired to murder the child.
36 In Keating v The State of Western Australia [2007] WASCA 98 the offender, whilst on a pre-release programme in a minimum security prison environment, committed a series of offences over a period of some hours against a prison education officer. The facts of that case disclosed 'sustained sexual and physical violence of such savagery and brutality as to mark the offending as exceptional' [40]. The appellant, who had pleaded guilty to the offences charged (his guilt had been obvious), was a man whose prior record disclosed that he remained at very high risk of re-offending. He posed a great danger to women. The court there said that the determinative sentencing factor was the need to protect the community [40]. A total sentence of 24 years' imprisonment, after allowing for the operation of the transitional provisions, was held not to offend the totality principle.
Conclusion
37 I accept that the total sentence imposed in this case was very severe. However, the circumstances of the case are truly exceptional. I am not persuaded that the totality principle was infringed.
38 Consequently, while I would grant the extension of time required by the appellant (his application for leave to appeal was lodged some four months out of time) and give leave to appeal, I would dismiss the appeal.
39 McLURE JA: I agree with Steytler P.
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40 MILLER JA: I agree with Steytler P.
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