Woodley v The State of Western Australia
[2008] WASCA 92
•15 APRIL 2008
WOODLEY -v- THE STATE OF WESTERN AUSTRALIA [2008] WASCA 92
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2008] WASCA 92 | |
| THE COURT OF APPEAL (WA) | 24/04/2008 | ||
| Case No: | CACR:153/2007 | 15 APRIL 2008 | |
| Coram: | STEYTLER P McLURE JA MILLER JA | 15/04/08 | |
| 8 | Judgment Part: | 1 of 1 | |
| Result: | Extension of time refused | ||
| D | |||
| PDF Version |
| Parties: | GERALD JOSEPH WOODLEY THE STATE OF WESTERN AUSTRALIA |
Catchwords: | Criminal law Appeal against sentence Whether sentences manifestly excessive Whether totality principle infringed Turns on own facts |
Legislation: | Criminal Code (WA), s 317, s 325, s 333, s 401 |
Case References: | Ashworth v The State of Western Australia [2006] WASCA 36 Chan (1989) 38 A Crim R 337 Dinsdale v The Queen (2000) 202 CLR 321 Lowndes v The Queen (1999) 195 CLR 665 Moody-Jackamarra v The State of Western Australia [2007] WASCA 7 Nguyen v The State of Western Australia [2007] WASCA 114 R v Cleak [2004] WASCA 72 Staunton v The State of Western Australia [2004] WASCA 21 The State of Western Australia v Skaines [2006] WASCA 160 VIM v The State of Western Australia (2005) 31 WAR 1 Walgar v The State of Western Australia [2007] WASCA 241 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : WOODLEY -v- THE STATE OF WESTERN AUSTRALIA [2008] WASCA 92 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 : STAVRIANOU DCJ
File No : IND 1494 of 2004
Catchwords:
Criminal law - Appeal against sentence - Whether sentences manifestly excessive - Whether totality principle infringed - Turns on own facts
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Legislation:
Criminal Code (WA), s 317, s 325, s 333, s 401
Result:
Extension of time refused
Category: D
Representation:
Counsel:
Appellant : Ms A S Rogers
Respondent : Mr J A Scholz
Solicitors:
Appellant : Andrew Maughan
Respondent : Director of Public Prosecutions (WA)
Case(s) referred to in judgment(s):
Ashworth v The State of Western Australia [2006] WASCA 36
Chan (1989) 38 A Crim R 337
Dinsdale v The Queen (2000) 202 CLR 321
Lowndes v The Queen (1999) 195 CLR 665
Moody-Jackamarra v The State of Western Australia [2007] WASCA 7
Nguyen v The State of Western Australia [2007] WASCA 114
R v Cleak [2004] WASCA 72
Staunton v The State of Western Australia [2004] WASCA 21
The State of Western Australia v Skaines [2006] WASCA 160
VIM v The State of Western Australia (2005) 31 WAR 1
Walgar v The State of Western Australia [2007] WASCA 241
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1 STEYTLER P: I have had the advantage of reading the reasons of McLure JA. I agree with them. They reflect my own reasons for joining in the decision of the court to refuse the application for an extension of time.
2 McLURE JA: The appellant was found guilty after trial of one count of aggravated burglary contrary to s 401(1) of the Criminal Code (WA) (count 1), one count of assault occasioning bodily harm contrary to s 317(1) of the Criminal Code (count 2), one count of deprivation of liberty contrary to s 333 of the Criminal Code (count 3) and one count of sexual penetration without consent contrary to s 325 of the Criminal Code (count 4). The offences took place on 12 April 2004. The appellant was convicted on 10 July 2006 and sentenced on 22 September 2006 following the provision of a pre-sentence report.
3 The learned sentencing judge sentenced the appellant to terms of immediate imprisonment of 2 years and 8 months on count 1, 12 months on counts 2 and 3 and 4 years on count 4. The sentencing judge ordered that the sentences on counts 1 and 4 be served cumulatively and the balance served concurrently with each other resulting in a total effective sentence of 6 years and 8 months.
4 The appellant's grounds of appeal are that the sentences on counts 1 and 4 are manifestly excessive, the sentencing judge erred in ordering that the sentences on counts 1 and 4 be served cumulatively and that the total sentence breaches the totality principle.
5 As the appellant did not lodge his appeal until 27 November 2007 he seeks an extension of time within which to appeal. The delay is lengthy and the period between the appellant's sentencing on 22 September 2006 and 9 October 2007 is not adequately explained in his supporting affidavit. In such circumstances, an extension of time should only be granted if failure to do so would result in a miscarriage of justice. That requires an assessment of the merits of the appeal.
6 The facts are as follows. The complainant the subject of counts 2, 3 and 4 was the appellant's then wife of nearly 30 years. They had separated in February 2004. On 4 February 2004 the complainant sought and obtained a violence restraining order against the appellant. On 30 March 2004 the appellant was convicted of a breach of that restraining order.
7 On 12 April 2004 the appellant travelled by car to Muchea with two female co-accused and another female. One of the co-accused had
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- advised the appellant of his wife's whereabouts in Muchea and her involvement with another man, 'B'. The appellant took with him in the car a knife and a pair of scissors. The party arrived at B's home at about 4 am. The appellant switched off the car's headlights. He got out of the car and entered B's home without his consent. He was alone and left his weapons outside the front door. The appellant searched for the complainant and found her hiding in the bathroom. The appellant grabbed the complainant by her hair and punched her around the head. He continued to assault her as he took her out of the house and put her into the vehicle where she was continuously detained during the return trip to Perth. The appellant drove to a house in Cloverdale. The appellant forced the complainant out of the car and into the house where he raped her. The co-accused had driven off after the appellant and complainant were out of the car.
8 The appellant, an Aboriginal man, was aged 47 at the time he committed the offences. His parents were alcoholics and he grew up in the New Norcia mission. He left school in year 9 and had been in paid employment most of his working life. He has a moderate prior record of offending which was said to be associated with his misuse of alcohol. Whilst on bail for these offences, the appellant commenced a new relationship and at the time of sentencing, was the father of a 6-month-old child.
9 The appellant continues to maintain his denial of the offences, blaming others for any violence involved and claiming the sexual penetration of the complainant was consensual. The writer of the pre-sentence report states that the appellant accepts no responsibility for his actions, has no insight into the inappropriateness of his behaviour and demonstrates no victim empathy.
10 The relevant sentencing principles are not in dispute. An appellate court is not entitled to intervene merely because it would have exercised the sentencing discretion in a manner different than the sentencing judge. It is only entitled to intervene if a material error of fact or law is discerned in the sentencing judge's reasons or if error can be inferred because the sentence is manifestly excessive: Lowndes v The Queen (1999) 195 CLR 665; Dinsdale v The Queen (2000) 202 CLR 321.
11 To determine whether a sentence is manifestly excessive, it is necessary to consider it in the context of the maximum sentence prescribed by law for the crime, the standards of sentencing customarily observed with respect to the crime, the place which the criminal conduct
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- occupies on a scale of seriousness of crimes of that type and the personal circumstances of the offender: Chan (1989) 38 A Crim R 337, 342.
Ground 1
12 The maximum penalty for the offence of aggravated burglary is 20 years' imprisonment. There were multiple circumstances of aggravation in this case. The appellant was armed with an offensive weapon, was in company and knew there were people in the house.
13 The offence occurred in the early hours of the morning when it was still dark and the entry took place with the intention of assaulting the complainant who suffered bodily harm. The seriousness of the offence of burglary is not lessened because the intended offence was an assault and not a robbery: Staunton v The State of Western Australia [2004] WASCA 21 [17]. As the intention to assault was punished in the sentence for this offence, a sentence shorter than would otherwise be appropriate was imposed for count 2.
14 The sentencing judge did not make a finding as to the means by which the appellant entered the house. It can be inferred that the entry was not forced. Even so, the circumstances of the offence, having regard to the circumstances of aggravation, are serious. Other relevant sentencing considerations include the fact that the appellant did not plead guilty, is entirely unremorseful for his conduct, blames others and lacks insight into the seriousness of his conduct.
15 The appellant relies in mitigation on a number of matters including the delay between the commission of the offences and sentencing, the rehabilitation of the appellant in that period, his new relationship and family who depend upon him for financial and other support, his involvement in the prison 'peer support team' (which provides support to new prisoners or prisoners at risk of self-harm), his good employment history and his 'Aboriginality and traditional heritage'. In particular, the appellant contended that the court should take into account in mitigation 'the intense pride felt by an Aboriginal man in maintaining good-face in the Aboriginal community' which it was submitted is undermined by his 'wife openly seeing another man'.
16 Ordinarily, mere delay between the commission of the offence and sentencing is not a mitigating factor. Around 6 months of the 2 1/3-year delay in this case was occasioned by the appellant's non-attendance at trial which was listed to commence on 18 January 2006. In any event, in
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- circumstances where a person goes to trial a delay of 2 1/2 years is not significant.
17 An offender is sentenced for the person that he or she is at the time of sentencing so regard is properly had to any demonstrated rehabilitation in the period before sentencing. Having regard to the matters referred to in the pre-sentence report in particular the appellant's lack of remorse, responsibility and insight for his offending conduct demonstrates there has been no material rehabilitation. However, it is in his favour that he has a positive employment history and has made a very substantial contribution to the prison peer support team.
18 Imprisonment often causes hardship to innocent persons and it is only in exceptional circumstances that this has the effect of substantially mitigating the sentence: The State of Western Australia v Skaines [2006] WASCA 160 [36]. The appellant created this situation whilst he was on bail for these offences for which a term of immediate imprisonment was inevitable. This case is not in the exceptional category.
19 The same general sentencing principles apply to all adult members of the community. However, the principle of equality before the law does not prevent the court from taking into account relevant cultural, ethnic and socio-economic factors in the exercise of the sentencing discretion: Moody-Jackamarra v The State of Western Australia [2007] WASCA 7 [13]. There is no evidence that it is an Aboriginal cultural imperative that men must maintain 'good face'. If it is, it would not be the only section of our multicultural society in which maintaining honour or good face is a cultural incident. Moreover, there is no evidence that maintaining good face is achieved by men physically and sexually assaulting women. Even if that was demonstrated, it may explain the motive for criminal conduct but it does not and cannot mitigate or reduce the culpability of the offender.
20 I turn now to the standards of sentencing customarily imposed for burglary and aggravated burglary. That issue was recently considered by this court in Nguyen v The State of Western Australia [2007] WASCA 114 and Ashworth v The State of Western Australia [2006] WASCA 36. The facts of, and authorities referred to in, those cases demonstrate that the sentence imposed on count 1 is within the range of a sound sentencing discretion. Ground 1 is without merit.
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Ground 2
21 The maximum penalty for sexual penetration without consent is imprisonment for 14 years. There is no tariff for this offence: VIM v The State of Western Australia (2005) 31 WAR 1 [301]. However, it has been recognised since 1989 that the general range of sentences commonly imposed for a single act of penile penetration without consent is between 6 - 9 years (4 - 6 years under the new sentencing regime): R v Cleak [2004] WASCA 72 [13].
22 The appellant in his submissions characterised his conduct as an attempt by him to reconcile his 30-year marriage with the complainant which it is said reduces the seriousness of the circumstances of the offence. The offence should not be considered in isolation from the circumstances that preceded it. The complainant feared violence from the appellant as demonstrated by her obtaining a violence restraining order. The conduct the subject of the offences in issue was another breach of that violence restraining order. The respondent secured the complainant's presence at the Cloverdale house by assaulting the complainant, doing her bodily harm and depriving her of her liberty before sexually assaulting her without her consent. The appellant's submission inappropriately minimises the seriousness of the sexual assault. There is no merit in ground 2.
Grounds 3 and 4
23 The sentencing judge ordered the cumulation of the sentences on counts 1 and 4 after having regard to issues of totality. He said:
I take account of the totality principle and the temporal relationship between the offences committed by you and in particular circumstances. I also take into account the necessity to ensure that the ultimate sentence reflects the total criminality of the conduct I am considering.
In my view, in the circumstances, the sentence of 4 years in relation to count 4 should be cumulative upon the concurrent sentences imposed in relation to counts 1, 2 and 3.
24 The appellant contends that the offences the subject of counts 1, 2, 3 and 4 were all part of one transaction and that therefore all the sentences should have been made concurrent. On this subject, I said in Walgar v The State of Western Australia [2007] WASCA 241 [9]:
The scope of the one transaction rule and its relationship with the totality principle have been considered by this court and its predecessor on a number of occasions including in R v Faithfull [2004] WASCA 39;
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- (2004) 142 A Crim R 554 [25] - [28]; Worthington v The State of Western Australia [2005] WASCA 72; (2005) 152 A Crim R 585 [20] - [24]; and Borbil v The State of Western Australia [2007] WASCA 24; (2007) 169 A Crim R 152 [84] - [87]. It is unnecessary to repeat the detail of what was said in those cases. In summary, multiple offences will be part of one transaction if the offender was truly engaged upon one multifaceted course of criminal conduct or if all the offences taken together constitute a single invasion of the same legally protected interest. If the offences are part of one transaction, it is a general rule (or what has been described as a good working rule) that any terms of imprisonment are made concurrent. However, a sentencing judge must in each case consider whether the application of the general rule would result in an appropriate measure of the total criminality involved in the conduct.
25 The last sentence of that paragraph states the first limb of the totality principle. The second limb of the totality principle is that a sentence should not be 'crushing' which connotes the destruction of any reasonable expectation of a useful life after release. I would characterise the four offences as being part of one multifaceted course of criminal conduct. However, total concurrency of the sentences would result in a total sentence of 4 years and that would be an inadequate measure of the total criminality of the appellant's conduct. It was open and proper for the trial judge to accumulate the sentences on counts 1 and 4. The total sentence is not arguably crushing. There is no merit in grounds 3 and 4.
26 There being no merit in the appeal, the court refused the application for an extension of time.
27 MILLER JA: I agree with McLure JA.
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