AMEDI -v- THE STATE OF WESTERN AUSTRALIA [2022] WASCA 172 (23 December 2022)

1. The following summary of facts is derived from her Honour's sentencing remarks.[1] The appellant does not challenge her Honour's findings of fact.
2. At all relevant times, D was aged between 15 years and 10‑and‑a‑half months and 15 years and 11 months. The appellant was aged 22 years and 7 months.
3. On or about 22 August 2019, the appellant and D met online via a messaging application in a chat group predominantly used by 'swinging' couples. D told him a number of things about herself including that she was at school, she wore a uniform and that she was 17 years of age. D also said that her mother had threatened her with the police if she left her house without permission and she invited the appellant to provide her with some suggestion or excuse which she could deploy in order to leave the house.
4. Her Honour found that the appellant believed that D was 17 years old and that she was 'of legal age'. However, her Honour found that the appellant was aware that D was a young person, still at school, and was vulnerable with regard to other things that she had told him about herself. Her Honour found that the information D had provided should have 'at least set off alarm bells' and that he should have asked her 'for more information or details or proof of her age'.
5. The messaging application communications which went between the appellant and D involved sexually explicit communications, including sending each other nude photographs of their genital areas. They discussed meeting up for sexual activity, both one on one and with others. These communications resulted in the appellant and D meeting in person. It was during these meetings that the offences occurred.

1. Count 1 occurred on the first occasion the appellant and D met in person. The original plan had been for the two of them to meet at a suburban train station, but D did not turn up as arranged. The appellant sent messages to D to the effect that unless she met with him, he would distribute nude photographs of her which she had sent to him. D asked him not to distribute the photographs of her, but the appellant was insistent on doing so unless she met with him. D sent a message, asking the appellant what he wanted. He told her that he wanted sex. D told him that she was at work and that he could meet her at her workplace.
2. Upon the appellant's arrival at D's workplace, he sent a Snapchat message telling her that he was in the disabled toilet. A short time later, D joined him in the toilet. When she arrived, the appellant was standing with his pants down. She took the appellant's shirt off and then both of them pulled down D's pants to her ankles. The appellant then pulled down D's underpants to her ankles. The appellant then turned D around so that she was facing the sink, with her back to him. He then inserted his penis into her anus and, after engaging in anal intercourse, ejaculated. D then pulled up her pants and underwear. The appellant told D that they should meet up again and 'do it properly'. D then left and returned to work.

1. Following their first encounter, the appellant and D continued to exchange messages about meeting each other, and others, for sexual activity. These communications included a discussion about what had occurred in the first incident. D told the appellant that she did not want to engage in anal sex again.
2. Approximately two weeks after the first incident, the appellant again met with D, this time at her home. The appellant and D kissed on his arrival. They then went to an outdoor area where they chopped up and smoked some cannabis. The appellant then took off his clothes and stood in front of D, who was seated. She then performed fellatio on him for about 10 minutes, while the appellant continued to smoke cannabis (count 3). The appellant then assisted D to pull down her pants and, while he was seated, penetrated her vagina with his penis for a short time (count 4). D then got up, pulled up her pants, and they both smoked some more cannabis. They then went into a spare bedroom inside the house. There, the appellant removed all his clothing while D removed her pants and jumper, but kept her T‑shirt on. The appellant then directed D to get on the bed on all fours, which she did. The appellant then penetrated D's vagina with his penis from behind her. He then changed position and reinserted his penis into D's vagina while she was lying on her back. While she was in this position, the appellant removed his penis from her vagina and inserted it into her anus. D told him to stop, saying, 'Don't', and tried to push him away with her hand. The appellant ignored her and continued to move his penis in and out of her anus. D continued to tell him to stop and eventually he did (count 5).
3. After the appellant removed his penis from D's anus, he reinserted it into her vagina for a short time. After he withdrew, he straddled D's shoulders by putting one knee on each shoulder, after which he 'shoved' his penis into D's mouth. D struggled to breathe and tried to push the appellant off her with her hands and tried to move her head backwards into the bed. When she pushed the appellant, he removed his penis from her mouth (count 6). The appellant then repositioned himself on top of D and again inserted his penis into her vagina until he ejaculated inside her (count 7). Shortly afterwards, the appellant left the house.
4. On 13 September 2019, D told her school chaplain about some of the sexual activity in which she and the appellant had engaged, including the act of anal sex (count 5), which she said was not consensual and went beyond, as her Honour put it, 'agreed limits'.
5. On 23 October 2019, police arrested the appellant. He agreed to participate in an electronically recorded interview. In the course of the interview, the appellant said that D had told him that she was 17 years of age and that he was unaware that she was only 15 years old. The appellant gave to the police a misleading account of the two occasions he and D had engaged in sexual activity. As to the first occasion, after initially telling police that he had sex with D, he later told them that it was just 'a blow job' and that there was no sex. The appellant said that, either way, he did not ejaculate. As to the second occasion, the appellant said that, after smoking cannabis in the backyard, D performed an act of fellatio on him and then, after smoking more, cannabis, he left the house. He specifically denied engaging in any acts of sexual penetration of D's vagina or anus.
6. The sentencing judge observed that the appellant had given somewhat different versions of the relevant events to the police, to the author of the pre‑sentence report and to a psychologist. As a result, her Honour said that it was 'very difficult' to work out how much of the appellant's version of events she could accept.
7. As to count 5, her Honour found, beyond reasonable doubt, that the appellant had anal sex with D without her consent. As this finding is unchallenged in this appeal, it is unnecessary to summarise her Honour's reasons for coming to this conclusion.

1. At the time he was sentenced, the appellant was 24 years old. He was born in Australia to Kurdish parents and is the second youngest of six children. The appellant was raised in a nurturing and supportive family. His relationships with his parents and siblings remain close. References provided to the sentencing judge describe the appellant as hardworking, respectful, caring and helpful to family, friends and peers.[2]
2. The appellant has no criminal history as an adult. Her Honour accepted that the appellant was a person of prior good character.[3]
3. The appellant completed year 12 and has completed a Bachelor of Applied Science and a diploma in building from TAFE.[4]
4. While at university he worked as a disability support worker for six months. From late 2019 until his trial, the appellant was employed as a draftsman. His employer provided the sentencing judge with a reference which said that the appellant was hardworking, respectful and honest.[5]
5. Her Honour found that the appellant had no significant health issues. However, she found that he was 'addicted to sexual behaviour and the use of online sites to meet others for sexual behaviour'. Her Honour observed that the appellant had said that, from the age of 20, he had met women for mostly one‑off encounters three or four times a week and that he had sought sexual partners who were interested in sexual behaviour with no emotional connection or commitment and women who used cannabis.[6] The appellant said that he used cannabis prior to engaging in sexual behaviour.[7]
6. The appellant met his current partner after the commission of the offences. They have agreed to live in 'an exclusive relationship', although the appellant ultimately intends to marry a Kurdish woman. His current partner remains supportive of him.[8]
7. The appellant claims that he has no sexual interest in children, a claim her Honour accepted.[9]

1. D provided the court with a victim impact statement which her Honour referred to in her sentencing remarks. Her Honour noted that at the point D met the appellant 'she was coming from a pretty low place'. Her Honour said that it was clear from the victim impact statement that the appellant's offending aggravated some of D's pre‑existing issues 'and then created others'. Her Honour observed that D had sought the assistance of counsellors in order to address the impact of the appellant's offending upon her.[10]
2. The victim impact statement sets out in detail the adverse effects of the appellant's offending upon D. In it she says, among other things, that she finds every day is a struggle; that the offending is constantly on her mind; that she has experienced feelings of worthlessness and self‑loathing; and that she is scared of men and uncomfortable when men touch her. She described the process of going to court as 'traumatic'.

1. In respect of the appellant's pleas of guilty on counts 3 and 7, her Honour gave a discount of 5%, pursuant to s 9AA of the Sentencing Act 1995 (WA).[11] No challenge is made to this reduction.
2. With respect to all of the offending, her Honour found that the appellant had demonstrated very little remorse, insight or victim empathy. She noted that D was vulnerable and that there was a disparity in the ages of the appellant and D of almost seven years which, her Honour said, was 'not insignificant when one looks at relative maturity and life experience'.[12]
3. Her Honour referred to communications between the appellant and D which occurred in between the two occasions on which the appellant engaged in sexual activity with D. She found that the appellant exerted some pressure on D to engage in sexual activity with him and that he attempted to secure her participation in sexual activity by offering to pay her or have others pay for her participation.[13]
4. Her Honour said that count 1 was aggravated by the appellant's threats to distribute intimate images of D if she did not meet up with him for sexual activity. With respect to all of the offences, her Honour found that the offending was aggravated because he did not wear a condom. It is this finding which is challenged in ground 3.[14]
5. Her Honour found that count 5 was the most serious offence because the act of anal penetration occurred without D's consent.[15]
6. Her Honour said that she accepted that counts 3, 4, 6 and 7 were consensual 'in the sense that the victim was a willing participant'.[16]
7. Her Honour observed that counts 1 and 5 caused D pain and that count 6 involved 'forceful oral penetration'. Her Honour said that count 7 was committed in the context that it followed from an act of anal sex without consent and involved forceful oral penetration.[17] Her Honour also observed that the appellant should have done more to ascertain D's true age 'so as to prevent this offending from having occurred'.[18]
8. It is clear from the sentencing remarks that her Honour had regard to the mitigating factors of the pleas of guilty he entered on counts 3 and 7, his previous good character, the support he has in the community and from his family, and his prospects of rehabilitation.
9. Her Honour rejected the submission that she should impose a conditionally suspended term of imprisonment. She found that nothing short of immediate imprisonment was appropriate, despite the appellant's excellent antecedents. Her Honour referred to the need to impose sentences that provided punishment, denunciation and general and specific deterrence.
10. It is convenient to consider ground 3 first, and then grounds 1 and 2.

1. As we have explained, ground 3 arises from her Honour's finding that it was an aggravating factor in respect of all of the offences that the appellant did not wear a condom.[19]
2. On behalf of the appellant, counsel submitted that in respect of counts 1, 3, 4, 6 and 7, her Honour found that, as a matter of fact, the victim consented to the sexual acts the subject of these counts and that, at the time, the appellant believed that D was 17 years of age. Counsel argued that, in these circumstances, the appellant was entitled to believe that the victim was old enough to consent to sexual activity with him in circumstances where he was not wearing a condom. Accordingly, he was not morally culpable for this failure and her Honour could not find that it was an aggravating factor.
3. Counsel for the appellant accepted that count 5 stood to be considered separately from counts 1, 3, 4, 6 and 7 because her Honour found that this offence (an act of anal penetration) occurred without D's consent. However, counsel for the appellant maintained that, even in respect of this offence, her Honour erred as alleged. This is because count 5 was committed in the midst of otherwise consensual sexual activity (counts 3, 4, 6 and 7) and it would be 'artificial' to find that the appellant's failure to wear a condom was not aggravating for the other offending, but that it was an aggravating circumstance in respect of count 5.[20]

1. In a number of cases decided by this court[21] and other intermediate courts of appeal in Australia,[22] it has been held that the failure of an offender to wear a condom is an aggravating factor for an offence involving the penile penetration of a victim. The rationale for such a finding is that unprotected penile penetration may expose the victim to the risk of sexually transmitted disease and, in the case of penile/vaginal penetration of girls and women of a childbearing age, pregnancy. In some cases, the sexual penetration has actually transmitted a sexually transmitted disease to the victim or caused a pregnancy. Even where there is no actual risk of transmission of a sexually transmitted disease or pregnancy, the fear of disease or pregnancy ordinarily increases the victim's trauma and distress. Further, the failure to wear a condom may illustrate an offender's reckless attitude towards the victim, and disregard for their welfare.[23]
2. In the present case, the seriousness of the appellant's failure to wear a condom is not materially diminished by the appellant's belief that the victim was 17 and the fact that she was, in respect of most of the counts, a willing participant.
3. It cannot be ignored that the appellant's only interest in D was to engage in sexual activity with her, including acts of sexual penetration. In these circumstances, given his predilection for sexual activity with many partners on a one‑off basis and his failure to have done more to ascertain D's true age, the appellant should have ensured that he did not expose D to the risk of sexually transmitted diseases or pregnancy.
4. In our opinion, in those circumstances, the appellant's failure to wear a condom reflected a reckless attitude towards D and a disregard for her welfare. We reject the submission that, on the facts and circumstances of this case, the appellant's moral culpability was not increased by his failure to wear a condom. Ground 3 has no reasonable prospect of succeeding.

Grounds 1 and 2 - alleged manifest excess and infringement of the totality principle

1. Grounds 1 and 2 allege implied error on the part of her Honour in relation to the individual sentences that were imposed and the total effective sentence.
2. The appellant's submissions in respect of grounds 1 and 2 emphasise that the appellant, on the relevant occasions, held the belief that D was 17 years of age. In any event, D's actual age was only weeks short of 16 years. Further, while acknowledging that count 1 was preceded by threats to distribute intimate images of D and count 5 occurred without D's consent, the appellant submitted that the offending in counts 3, 4, 6 and 7 occurred with D's consent. The appellant also pointed to his favourable antecedents and good prospects of rehabilitation.
3. Counsel for the appellant accepted that comparable cases provide limited guidance with respect to sexual offences. He observed that cases cited by the State in the sentencing proceedings did not involve a combination of consensual and non‑consensual offending in circumstances comparable to the present case. Counsel referred to the analysis of cases undertaken by this court in Topuz v The State of Western Australia[24] and the outcome in Jetter v The State of Western Australia[25] to illustrate his contention that the individual sentences imposed for counts 1, 3, 4, 6 and 7 were manifestly excessive and that the total effective sentence of 6 years' imprisonment infringed the first limb of the totality principle.
4. In relation to the sentence imposed on count 5, counsel for the appellant sought to distinguish this case from the outcome in cases such as McNally v The State of Western Australia[26] on the basis that in the present case the offending was of relatively short duration and was 'an impulsive decision by a young man in the context of other consensual sexual activity'.[27]
5. Counsel for the appellant did not submit that her Honour should have sentenced the appellant to suspended terms of imprisonment with or without conditions. Counsel conceded that given the non‑consensual nature of count 5, a term of immediate imprisonment for this offence was the only appropriate disposition and accordingly suspended imprisonment, with or without conditions, on the other counts was not open. However, it was submitted that each of the individual sentences and the total effective sentence was, in effect, too long.

1. The general sentencing principles applicable to grounds of appeal which allege that an individual sentence is manifestly excessive and that a total effective sentence infringes the first limb of the totality principle are well established. We adopt with repetition the statement of principles made by this court in Kabambi v The State of Western Australia.[28]

1. As stated earlier, the maximum penalty for an offence against s 321(2) of the Code in the circumstances of this case is a sentence of 14 years' imprisonment.
2. The public policy and purpose underlying s 321(2) is not only to protect children from abuse by sexual predators, but also to protect children from themselves.[29] As Wheeler JA explained (Buss JA agreeing) in Riggall v The State of Western Australia,[30] the presence or absence of an element of abuse is of considerable importance in sentencing for offences under s 321(2).
3. The absence of consent in fact by the child is not an element of the offence created by s 321(2), nor is 'consent' in fact by the child a defence. Free and voluntary 'consent' by the child is not irrelevant in sentencing an offender who has committed an offence against s 321(2), but its relevance and weight will vary considerably depending upon the particular facts and circumstances.[31] Similarly, the fact that the child was very close to the age of consent is not irrelevant in sentencing an offender who has committed an offence against s 321(2), but its relevance and weight will also vary considerably depending upon the particular facts and circumstances. Proved absence of consent and, particularly, knowledge of absence of consent is an aggravating factor.[32] The policy and purpose of protecting children from themselves is not confined to children under the age of 16 who, in fact, have little or no sexual experience.[33]
4. There is no tariff for sexual offending (including, in particular, offending against s 321(2)) because of the great variation that is possible in the circumstances of the offending and offenders. The sentence to be imposed in a particular case depends on its individual facts and circumstances, having regard to the maximum penalty and all relevant sentencing factors.[34]
5. We have had regard to the numerous cases of offending against s 321(2) cited in Jetter[35] and, of course, we have also had regard to the outcome of Jetter itself.
6. It is unnecessary to analyse these cases and the case cited by the appellant: McNally v The State of Western Australia. McNally concerned an offence contrary to s 325 of the Code and can, for present purposes, be put to one side.
7. The individual sentences imposed for each of counts 1, 3, 4, 6 and 7 concerned offences in which it was not alleged that the offending was aggravated by the absence of consent on the part of the complainant. It is also the case that D was close to the age of 16. However, the offending concerned a vulnerable victim and a not insignificant age disparity between her and the appellant.
8. On each of the two occasions on which the appellant engaged in sexual activity with D, he exerted some pressure on her to engage in that activity. The offending in count 1 was aggravated by the appellant's threats to distribute intimate images of D if she did not meet with him for the purpose of sexual activity. As already explained, all of the offending was aggravated because the appellant did not wear a condom. Counts 6 and 7 involved what her Honour described as forceful oral penetration. Counts 6 and 7 occurred after the act of anal penetration the subject of count 5.
9. We will not repeat the mitigating factors that were found by her Honour. The appellant did not have the advantage of the mitigation that pleas of guilty would have brought in respect of counts 4, 5 and 6.
10. Count 5 was, as her Honour found, the most serious offence committed by the appellant involving, as it did, an act of anal penetration which, to the appellant's knowledge, occurred despite D's express refusal of consent.
11. Having regard to all of the relevant circumstances, it is not reasonably arguable that any of the individual sentences imposed by her Honour was manifestly excessive. They were not unreasonable or plainly unjust. To the contrary, each represented an appropriate exercise of the sentencing discretion. We would refuse leave to appeal on ground 1.
12. As to ground 2, the offending involved two separate incidents. Some accumulation of the sentences was appropriate. In our opinion, a total effective sentence of 6 years' imprisonment did not infringe the first limb of the totality principle. Leave to appeal on ground 2 should be refused.

1. None of the grounds of appeal have a reasonable prospect of succeeding. Leave to appeal should be refused and the appeal dismissed.
2. The orders that we would make are:
   1. Leave to appeal is refused on grounds 1, 2 and 3.
   2. The appeal is dismissed.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.

[21] See, for example, Singh v The State of Western Australia [2017] WASCA 47; KSN v The State of Western Australia [2017] WASCA 156; Lakay v The State of Western Australia [2019] WASCA 46; The State of Western Australia v Jacoby [2020] WASCA 150; SAL v The State of Western Australia [2021] WASCA 192; JYL v The State of Western Australia [2021] WASCA 222; Tullock v The State of Western Australia [2022] WASCA 11.

[22] See, for example, R v Khem [2008] VSCA 136; (2008) 186 A Crim R 465; R v MSK and MAK [2004] NSWCCA 308; (2004) 61 NSWLR 204; Director of Public Prosecutions v JSP [2020] TASCCA 3.

[24] Topuz v The State of Western Australia [2017] WASCA 186 [54] ‑ [58].

[25] Jetter v The State of Western Australia [2021] WASCA 80.

[26] McNally v The State of Western Australia [2019] WASCA 93.

[28] Kabambi v The State of Western Australia [2019] WASCA 44 [21].

[29] Deering v The State of Western Australia [2007] WASCA 212 [17]; GNR v The State of Western Australia [2015] WASCA 5 [61] and Jetter v The State of Western Australia [53].

[30] Riggall v The State of Western Australia [2008] WASCA 69; (2008) 37 WAR 211 [48].

[31] See Jetter [57] and Riggall [22].

[32] See Poulton v The State of Western Australia [2008] WASCA 97 [3].

[33] Jetter [60] and Tapper v The State of Western Australia [2016] WASCA 140 [84].