[2005] WASCA 134

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE COURT OF APPEAL (WA)

CITATION : RIGBY -v- THE STATE OF WESTERN

AUSTRALIA [2005] WASCA 134

CORAM : ROBERTS-SMITH JA
PULLIN JA
LE MIERE AJA

HEARD : 8 JUNE 2005

DELIVERED : 22 JULY 2005

FILE NO/S : CCA 138 of 2004

BETWEEN : PETER CHRISTIAN RIGBY

Appellant

AND

THE STATE OF WESTERN AUSTRALIA

Respondent

ON APPEAL FROM:

Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA

Coram : WILLIAMS DCJ
File No : IND 39 of 2004

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Catchwords:
Criminal law - Sentencing - Principles involved in appeal against sentence -
Whether sentence was manifestly excessive - Whether sentence failed to reflect
what was one course of conduct flowing from offence of aggravated burglary -
One transaction rule - No common element to offences - Totality principle -
Total aggregate sentence not manifestly excessive - Whether sufficient
consideration given to plea of guilty - No early guilty plea - Strength of case
against accused is significant

Legislation:
Sentencing Act 1995 (WA)

Result:
Application dismissed

Category: B

Representation:

Counsel:
Appellant : In person
Respondent : Mr M Mischin & Mr S F Rafferty

Solicitors:
Appellant : In person
Respondent : State Director of Public Prosecutions

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

Cameron v The Queen (2002) 209 CLR 339

Dodge (1988) 34 A Crim R 325

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 [2005] WASCA 134

Hooper v The Queen (2003) 27 WAR 264

Lowndes v The Queen (1999) 195 CLR 665
Markarian v The Queen (2005) 215 ALR 213
Pearce v The Queen (1998) 194 CLR 610
Pieri v The Queen [2001] WASCA 357
Postiglione v The Queen (1997) 189 CLR 295
R v White [2002] WASCA 112
Siganto v The Queen (1998) 194 CLR 656

Case(s) also cited:

Herbert v The Queen [2003] WASCA 61; (2003) 27 WAR 330

Jarvis v The Queen (1993) 20 WAR 201
Mill v The Queen (1988) 166 CLR 59
Musarri v The Queen, unreported; CCA SCt of WA; Library No 980662;
17 November 1998
Worthington v The State of Western Australia [2005] WASCA 72

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 [2005] WASCA 134
ROBERTS-SMITH JA

1 ROBERTS-SMITH JA: I agree with the conclusion reached by

Le Miere AJA and the reasons his Honour gives for it, but have some
additional remarks in respect of the effect of the plea of guilty.

2 The various ways in which a plea of guilty may have mitigatory

effect were explained by the High Court in Cameron v The Queen (2002)
209 CLR 339. In their joint judgment, Gaudron, Gummow and
Callinan JJ quoted (at [11]) a passage from the judgment of Gleeson CJ,
Gummow, Hayne and Callinan JJ in Siganto v The Queen (1998) 194
CLR 656 at [22], that a plea of guilty is ordinarily taken to have
mitigatory effect first because it is usually evidence of remorse and
secondly, on the pragmatic ground that the community is spared the
expense of a contested trial. However, in Cameron their Honours at once
noted that remorse is not necessarily the only subjective matter revealed
by a plea of guilty: it may also indicate acceptance of responsibility and a
willingness to facilitate the course of justice. Given the need to maintain
a real distinction between allowing a reduction for a plea of guilty on the
one hand and not penalising an offender for not pleading guilty,
their Honours said (ibid [14]) the rationale for the former rule requires (so
far as it depends on factors other than remorse and acceptance of
responsibility) that it be expressed in terms of willingness to facilitate the
course of justice and not that it has saved the community the cost of a
contested hearing.

3 Kirby J held (at [65]) that the true foundation for a sentence discount
for a plea of guilty is the public interest. That includes not only genuine
remorse, where it exists, but also such factors as the cost and
inconvenience of a trial, the freeing-up of court lists and the avoidance of
having to put victims and witnesses through the traumatic experience of a
trial, amongst others. So regarded, genuine remorse is not a pre-condition
for the mitigatory effect of a plea of guilty (and see also Hooper v The
Queen (2003) 27 WAR 264, [34], [96] – [98]).

4 In the present case, the applicant does not contend the Judge failed to
take his pleas of guilty into account at all, but rather that his Honour
"failed to give sufficient consideration" to those pleas and the applicant's
stated desire not to put the victim through the trauma of a trial. As
Le Miere AJA points out, the Judge, in specifically indicating that he was
taking into account the applicant's plea of guilty, noted it was made at a
late stage and in a situation in which the prosecution case was
overwhelming. His Honour did not quantify the discount he was giving
for the plea – but he was not required to (Markarian v The Queen (2005)
215 ALR 213; [2005] HCA 25). His Honour's remarks have to be read in

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 [2005] WASCA 134
ROBERTS-SMITH JA
PULLIN JA
LE-MIERE - AJA
light of his earlier reference to the facts that the offence occurred on
10 May 2002 but the applicant was not identified until August 2003 when
his DNA was processed through the police "DNA back-catcher" program.
Police had requested a sample of his DNA whilst he was on parole in
2002, but he became extremely agitated by that request and avoided
providing one until August 2003. He was interviewed on 18 August 2003
and told police he had been living adjacent to the complainant's house at
the time, but refused to say more. Counsel for the applicant had suggested
to the Judge that the explanation for the applicant's failure to co-operate
with police and to admit to his guilt earlier was that he had no recollection
of the offences because his mind had been so affected by drugs.
His Honour said he had "difficulty" with that proposition.
5 Given that his Honour expressly had regard to the applicant's pleas of
guilty, his comment about that and the (unchallenged) facts upon which
he was sentencing the applicant, the end result does not demonstrate
his Honour failed to give sufficient weight to the applicant's pleas of
guilty.

6 PULLIN JA: I agree with the reasons for decision of Le Miere AJA and
the orders he proposes.

7 LE MIERE AJA: The applicant applies for leave to appeal against the
sentence imposed upon him and for an extension of time within which to
commence the appeal.
8 The applicant was charged on indictment that on 10 May 2002 at
Coolbellup he committed the offences of one count of aggravated
burglary, two counts of deprivation of liberty and one count of aggravated
sexual penetration. On 12 May 2004 the applicant pleaded guilty and was
convicted of each of those offences.
9 On 18 June 2004 the learned sentencing Judge imposed sentences of
imprisonment as follows: for the offence of aggravated burglary, 2 years
and 8 months; for each offence of deprivation of liberty, 16 months and
for the offence of aggravated sexual penetration, 5 years and 4 months.
The learned sentencing Judge ordered that the sentence for one count of
deprivation of liberty should be served concurrently with the sentence for
the offence of aggravated sexual penetration but otherwise the sentences
should be served cumulatively upon each other. The aggregate of the
terms of imprisonment (or head sentence) was 9 years and 4 months. The
learned sentencing Judge directed that the applicant be eligible for parole.
Accordingly, as a result of the sentences and the operation of the

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LE-MIERE - AJA

Sentencing Act 1995 (WA), the applicant will serve a minimum period of
7 years and 4 months in custody.
The facts
10 At approximately 4.30 am on 10 May 2002 the applicant attended at
the complainant's residence in Coolbellup. He jumped an asbestos fence
at the front of the premises into the complainant's rear yard. Once in the
yard, he entered the premises through an unlocked sliding door and
entered the kitchen. At that time the complainant, who was 36 years of
age, was asleep in her bedroom. Her 3-year-old daughter was asleep in a
separate bedroom.
11 The complainant awoke to noises in her kitchen and entered the
kitchen to investigate. There she was confronted by the applicant. She
screamed. The applicant grabbed her and held a gloved hand over her
mouth to suppress her screams. The complainant struggled to break free
but was overpowered by the offender who forced her into the study. The
applicant then told the complainant to stop screaming or else he would
stab her. The complainant stopped screaming. The complainant's
3-year-old daughter was woken by the screaming and left her bedroom
crying and distressed. The applicant ordered the complainant to return her
daughter to the bedroom and in doing so released his grip on her. The
complainant picked up her daughter and ran towards the front door in an
effort to escape. The complainant was unable to escape because the front
door was deadlocked and the applicant again grabbed the pair. He pushed
the complainant back towards the study whilst having a hand around her
neck and ordered her to put her daughter back in the bedroom. When the
daughter refused to return to her bedroom the applicant shut the study
door so the 3-year-old was left standing alone in the hallway screaming.

12 Whilst in the study the applicant removed the complainant's top so

that she was naked. He stood behind her and lent on her so that she was
bent over a portable massage table. He then asked the complainant to say
the words, "fuck me" and pushed his erect penis into her vagina from
behind and penetrated her until he ejaculated. The applicant told the
complainant that he was going to leave the premises and told her in a
threatening manner that if she contacted the police she would be "a very
sorry girl". He then left the premises.

13 At all times the complainant did not see the applicant's face, although
she could make out his build, height and hairstyle. The applicant's DNA
was later found in the complainant's vagina and that is how the applicant
was apprehended.

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 [2005] WASCA 134
LE-MIERE - AJA

14 On 18 August 2003 the applicant was interviewed by Detectives. He

admitted that at the time of the offence he had been living almost adjacent
to the complainant's residence. He also admitted to entering the
complainant's premises previously when it had former tenants. He
refused to participate in further questioning in relation to these offences.

Antecedents
15 The applicant is presently aged 31. He was 28 years old at the time
of the offences. He is the only child of his parents' union. He has three
half siblings from the previous and subsequent relationships of his
parents. The applicant's parents separated when he was 4 years of age and
he has had little regular contact with his father. His childhood was
characterised by separation, transience and financial difficulty. He left his
mother's home to live with his girlfriend at 17 years of age. The
relationship produced two children aged 10 and nine years at the time of
sentencing. The applicant had custody of the children as a consequence of
abuse issues being perpetrated by his former partner's boyfriend. At the
time of sentencing the children were in the care of the applicant's mother.
The applicant attended school until 15 years of age when he left without
achievement. His employment history consists of periods of short-term,
unskilled labouring.

16 The applicant has a history of poly substance use, which commenced

at 14 years of age and which includes the use of cannabis, lysergic acid,
ecstasy and amphetamine. He first appeared in court at 15 years of age.
He has a history of convictions for burglary, dishonesty, and drug and
motor vehicle related offences. He has previously served terms of
imprisonment. He was released on parole on 31 August 2001 for a period
due to expire on 31 July 2002. He committed the present offences whilst
on parole.
Victim impact
17 The complainant was brutally violated in her own home. The
offence was described by the learned sentencing Judge as "horrendous".
It was an invasion of the complainant's sense of autonomy, dignity,
privacy and sense of security, as well as a physical violation. The offence
has had a devastating effect upon the complainant and left her with a
lasting sense of humiliation, curtailment of freedom and loss of
self-esteem. The attack has also had a lasting effect upon the
complainant's daughter, who was forced to experience the attack upon her
mother, separated only by a door.

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LE-MIERE - AJA

Grounds of appeal
18 There are three grounds of appeal:
"1. The learned sentencing Judge erred in ordering that the
sentence he imposed on counts 1 and 3 be served
cumulatively. All counts arose out of the one course of
conduct and all counts should therefore have been
ordered to be served concurrently.

2. In the alternative, the learned sentencing Judge erred in

ordering the sentence he imposed on count 1 be served
cumulatively. This count [of aggravated burglary] was
clearly part of a course of conduct and the sentence
should have been ordered to be served concurrently.
3. The learned sentencing Judge failed to give sufficient
consideration to the appellant's plea of guilty and the
appellant's stated desire not to put the victim through the
trauma of a trial."

19 At the hearing of his application the applicant relied upon a written

outline of submissions.

Principles involved in appeals against sentence

20 The principles according to which an appellate court may interfere
with the discretionary judgment of a sentencing Judge are well
established. A Court of Criminal Appeal may not substitute its own
opinion for that of the sentencing Judge merely because the appellate
court would have exercised its discretion in a manner different from the
manner in which the sentencing Judge exercised his or her discretion. The
discretion which the law commits to sentencing Judges is of vital
importance in the administration of our system of criminal justice:
Lowndes v The Queen (1999) 195 CLR 665 per the Court at [15]. The
question for an appeal court is whether the sentence imposed by the
sentencing Judge involved error of a kind warranting appellate
interference with a discretionary judgment. Unless some material error of
fact or law can be discerned in the reasoning of the sentencing Judge, then
the question for the appellate court to consider is whether the
circumstances of the case are such that the imposition of the sentence
involved an implied error.

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LE-MIERE - AJA

Appeals grounds 1 and 2

21 The applicant submits that in ordering that the sentences imposed for
aggravated burglary and one count of deprivation of liberty (of the child)
be served cumulatively upon the sentences imposed for unlawful
detention and sexual assault of the complainant, the learned sentencing
Judge erred in that the resulting head sentence of 9 years and 4 months
was manifestly excessive and failed to reflect what was one course of
conduct flowing from the offence of aggravated burglary.
22 In Pearce v The Queen (1998) 194 CLR 610 McHugh, Hayne and
Callinan JJ, in their joint judgment, discussed whether the appellant could
be or was doubly punished. Pearce had been indicted upon charges which
included having maliciously inflicted grievous bodily harm with intent to
do the victim grievous bodily harm, contrary to s 33 of the Crimes Act
1900 (NSW), and with having broken and entered that victim's dwelling
house and, while in it, inflicting grievous bodily harm on him, contrary to
s 110. The charge arose out of a single incident in which Pearce broke
into the victim's home and beat him, causing life-threatening injuries.
Pearce was sentenced to 12 years' imprisonment on each count, to be
served concurrently.
23 At [40] McHugh, Hayne and Callinan JJ said:

"To the extent to which two offences of which an offender

stands convicted contain common elements, it would be wrong
to punish that offender twice for the commission of the
elements that are common. No doubt that general principle
must yield to any contrary legislative intention, but the
punishment to be exacted should reflect what an offender has
done; it should not be affected by the way in which the
boundaries of particular offences are drawn. Often those
boundaries will be drawn in a way that means that offences
overlap. To punish an offender twice if conduct falls in that
area of overlap would be to punish offenders according to the
accidents of legislative history, rather than according to their
just deserts."

24 Their honours said that it was clear in that case that a single act (the
appellant inflicting grievous bodily harm on his victim) was an element of
each of the offences under s 33 and s 110. Their honours continued [at
42]:

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LE-MIERE - AJA

"The identification of a single act as common to two offences

may not always be as straightforward. It should, however, be
emphasised that the enquiry is not to be attended by 'excessive
subtleties and refinements'. It should be approached as a matter
of commonsense, not as a matter of semantics."
25 In Pieri v The Queen [2001] WASCA 357 Einfeld AJ, with whom
Wallwork J agreed, quoted Thomas': "Principles of Sentencing", 2nd ed,
1979 at p 53:
"Where two or more offences are committed in the course of a
single transaction, all sentences in respect of these offences
should be concurrent rather than consecutive."

26 At [41], Einfeld AJ expressed the essence of the rule as follows:

"The essence of the one transaction rule thus appears to be that
consecutive or cumulative sentences are inappropriate when all
the offences taken together constitute a single invasion of the
same legally protected interest ..."
27 In R v White [2002] WASCA 112 McKechnie J said:

"[25] The question commonly posed for answer by a sentencing

Judge is whether the offences arise out of the same set of
facts so that the sentences should properly be made
concurrent, or whether the offences disclose entirely
distinct conduct which should attract separate and
therefore cumulative punishment ...
[26] There is no hard and fast rule. In the end a judgment
must be made to balance the principle that one transaction
generally attracts concurrent sentences with the principle
that the overall criminal conduct must be appropriately
recognised and that distinct acts may in the circumstances
attract distinct penalties. Proper weight must therefore be
given to the exercise of the sentencing Judge's
discretion."

28 The learned sentencing Judge expressly referred to the need to

consider whether the sentences in relation to the offences should be made
concurrent or cumulative and continued:

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" … the prosecutor has put the proposition that the deprivation
of the liberty of the child is really a separate offence, and I
agree with that proposition. Having taken all those matters into
account I am of the view that these are very serious offences."
29 The offences of aggravated burglary, unlawful detention of the child
and aggravated sexual penetration of the complainant are distinct
offences, each of a different character. There is no common element to
the offences. The offences are of such a distinct character that,
notwithstanding the closeness in time over which they were committed, it
was a proper exercise of sentencing discretion to accumulate the sentences
to a point where the totality of the sentences would become oppressive.

30 The applicant submits that the total effective or head sentence failed
adequately to address the totality principle. A basic principle of
sentencing law is that a sentence of imprisonment imposed by a court
should not exceed that which can be justified as appropriate or
proportionate to the gravity of the crime considered in light of its
objective circumstances. Individual sentences must not only be
proportionate, but, in the case of multiple offences, the total sentence must
be proportionate to the totality of the offending.
31 The totality principle requires a Judge who is sentencing an offender
for a number of offences to ensure that the aggregation of the sentences
appropriate for each offence is a just and appropriate measure of the total
criminality involved. The principle enables a court to mitigate what strict
justice would otherwise indicate, where the total effect of the sentences
merited by the individual crimes becomes so crushing as to call for the
merciful intervention of the court by way of reducing the total effect. The
application of the totality principle therefore requires an evaluation of the
total criminality involved in all the offences with which the prisoner is
charged. Where necessary, the court must adjust the prima facie length of
the sentences downward in order to achieve an appropriate relativity
between the totality of the criminality and the totality of the sentences:
Postiglione v The Queen (1997) 189 CLR 295 per McHugh J at 307 –
308.

32 The total effective or head sentence imposed on the applicant is not

so crushing or oppressive as to offend the totality principle. Looked at
overall, the effect of the sentences imposed on the applicant is not
disproportionate to the criminality of his conduct. Having regard to the
seriousness of the offences committed by the applicant I conclude that the
total aggregate or head sentence is not manifestly excessive.

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33 The applicant has not established any material error of fact or law by
the sentencing Judge, nor are the circumstances of the case such that the
sentences imposed involve some implied error. Grounds 1 and 2 would
not succeed.
Appeal ground 3
34 The applicant submits that the learned sentencing Judge failed to
give sufficient consideration to his plea of guilty and his stated desire not
to put the complainant through the trauma of a trial. The learned
sentencing Judge took into account the applicant's plea of guilty. His
Honour said:
"I take into account that you have pleaded guilty, albeit at a late
stage, and I would have thought the proposition that the
prosecutor put, that the case was overwhelming, is correct."
35 In her plea in mitigation to the sentencing Judge, counsel for the
applicant conceded that the case against the applicant was overwhelming
because his semen was found in the complainant's vagina. As counsel
said, it could not have got there unless there had been an attack in the way
the complainant outlined.

36 A plea of guilty should be taken into account regardless of whether

or not it is also indicative of some other quality or attribute such as
remorse which is regarded as relevant for sentencing purposes. A plea of
guilty may be taken into account in mitigation, even though it is solely
motivated by self-interest. As Kirby P said in Dodge (1988) 34 A Crim R
325 at 331:

"In the present condition of the lists of criminal trials awaiting

hearing, the public interest demands that greater attention be
paid now than perhaps was formerly paid by sentencing judges
to the consideration that a plea of guilty in the individual case
saves public time and cost and contributes to reducing delays
which are a matter of particular concern and potential injustice
in criminal trials."

37 The timing of the plea is important. In this case it is conceded by the

applicant that it was not an early plea of guilty. The strength of the case
against the accused is also significant. A plea of guilty made in the face
of evidence that is not overwhelming is very significant. On the other
hand, a late plea of guilty in the face of an overwhelming prosecution case
has much less mitigatory impact. This is such a case.

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38 The learned sentencing Judge took into account the applicant's plea
of guilty. Neither the sentence imposed by the sentencing Judge nor his
Honour's sentencing remarks disclose any error. This ground of appeal
would not succeed.
Conclusion
39 I would refuse leave to appeal against sentence on the ground that the
proposed appeal does not have sufficient merit to justify a grant of leave
to appeal. I would refuse an extension of time in which to apply for leave
to appeal for the same reason.

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