Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA

Criminal law - Appeal against sentence - One count of sexual penetration of a child over 13 and under 16 years of age - Criminal Code s 321(2) - Honest belief that complainant over 16 - No grooming, inducement or coercion - Sexual activity instigated by complainant - Sentence of nine months' immediate imprisonment set aside - Sentence of four months' imprisonment, suspended for four months imposed

Sentence of 9 months' immediate imprisonment set aside

Sentence of 4 months' imprisonment, suspended for 4 months imposed

Brand v State of Western Australia [2011] WASCA 269

Chan v The Queen (1989) 38 A Crim R 337

Collins v The State of Western Australia [2007] WASCA 108

Deering v State of Western Australia [2007] WASCA 212

GNR v State of Western Australia [2015] WASCA 5

HMN v The State of Western Australia [2015] WASCA 128

Munda v The State of Western Australia [2013] HCA 38; (2013) 302 ALR 207

Poulton v State of Western Australia [2008] WASCA 97

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

State of Western Australia v SJH [2010] WASCA 40

The State of Western Australia v Akizuki [2008] WASCA 267; (2008) 192 A Crim R 373

1 JUDGMENT OF THE COURT: On 30 June 2015, the appellant pleaded guilty in the District Court to one count of sexual penetration of a child over 13 and under 16 years of age (Criminal Code s 321(2)). He was sentenced by Bowden DCJ to 9 months' imprisonment, that term to commence from 20 June 2015.

2 The appellant appealed against the sentence on the ground that it was manifestly excessive. Leave to appeal on that ground was granted on 19 July 2015 and, on 20 July 2015, the appellant's application for an urgent appeal order was granted.

3 The appeal came on for hearing on 9 September 2015. The court allowed the appeal, set aside the sentence, and resentenced the appellant to 4 months' imprisonment, suspended for 4 months. We said we would provide reasons for decision later. These are the reasons.

4 The offence was committed at the appellant's home on 31 October 2014. At the time of the offence, the appellant was 23 years old and the complainant was 13 years old.

5 The appellant shared the house with about three other people. On 31 October 2014, the complainant came to the house with some friends, intending to stay overnight. The complainant had been drinking before she arrived. There was a gathering in the nature of a party at the house, during which the appellant supplied the complainant with some alcohol and cannabis. At the time, the appellant appears to have been under the mistaken impression that the complainant's mother had recently died.

6 At about 10 pm, the appellant went to his bedroom and went to bed. Sometime later, one of his housemates entered the bedroom and told him that the complainant wanted to have sex with him. The appellant said he was willing to have sex with her. Immediately afterwards, the complainant came into the room and got into the appellant's bed, and the appellant had sexual intercourse with her.

7 The offence did not come to light until 23 November 2014 when police attended an unrelated incident at another location and in the course of their inquiries of a group of people there, including the appellant and the complainant, were informed of this offence. The appellant was arrested and taken to the Cannington Police Station where he participated in a recorded interview in which he admitted having had sex with the complainant. The appellant told police that at the time he thought the complainant was 18 or 19 years of age.

8 The sentencing judge found that the complainant had initiated the sexual activity and that no force or inducement on the part of the appellant had been involved. His Honour also found that the appellant had not supplied the complainant with alcohol and cannabis for the purpose reducing her inhibitions. In his Honour's view, the gravamen of the offence was the corruption of the complainant because of the age disparity.

9 Whilst his Honour accepted that at the time of the offence the appellant honestly believed the complainant was over the age of 16, he concluded that the appellant's belief was not reasonable. His Honour did so on the ground that the complainant had said nothing about her age and the appellant had made no inquiry in circumstances where the complainant fell within the range where it is difficult to tell a person's age. In those circumstances, his Honour considered it was incumbent upon the appellant, as the older adult, to ensure that the complainant was not a child.

10 A psychiatric report and a pre-sentence report were before the sentencing judge. His Honour noted that the appellant's early family life had been somewhat dysfunctional and since the offending he had been admitted to Bentley Hospital on three occasions for mental conditions. The psychiatrist had concluded that the appellant had a cannabis and alcohol disorder, and narcissistic and antisocial traits, but that he had not been suffering any mental illness at the time of the offence.

11 The appellant's criminal record revealed a range of simple offences but no record of sexual offending.

12 The sentencing judge concluded that the offending was toward the lower end of the range of such offences. But he considered that the offence was so serious, primarily because of the age disparity, that imprisonment was the only appropriate disposition, and that general deterrence, in particular, required that a term of immediate imprisonment be imposed. His Honour reduced the sentence that he would otherwise have imposed by 25% for the appellant's plea of guilty. The appellant was sentenced to 9 months' immediate imprisonment

13 The sole ground of appeal is that the sentence of 9 months' immediate imprisonment was manifestly excessive.

14 A ground of appeal asserting that a sentence was manifestly excessive relies on inferred error. In determining whether a sentence is manifestly excessive, the sentence must be viewed in the light of the maximum sentence prescribed for the offence (in this case, 14 years' imprisonment); the standards of sentencing customarily observed with respect to the offence; the place which the criminal conduct occupies on the scale of seriousness of crimes of that type; and the personal circumstances of the offender: Chan v The Queen (1989) 38 A Crim R 337, 342.

15 While for consistency it is necessary to have regard to sentences customarily imposed in cases involving similar offending, the range of sentences that have been imposed in the past does not fix the boundaries within which future judges must, or even ought, to sentence: see Munda v The State of Western Australia [2013] HCA 38; (2013) 302 ALR 207 [39] - [40]. As this court has emphasised on a number of occasions, there is no tariff for sexual offending: The State of Western Australia v Akizuki [2008] WASCA 267; (2008) 192 A Crim R 373 [3].

16 Ordinarily, a term of immediate imprisonment is imposed for sexual offending against children. That, however, does not relieve a sentencing judge of the obligation to assess whether, having regard to all relevant sentencing factors in the particular case, it is appropriate to impose a lesser sentence. The question for the sentencing judge is whether, having regard to all relevant sentencing factors, the case does not require the imposition of the generally appropriate type of sentence for the offence: Collins v The State of Western Australia [2007] WASCA 108 [21]; HMN v The State of Western Australia [2015] WASCA 128 [26].

17 We have had regard to a number of other cases involving sexual offending against children, including the following cases referred to in argument: Deering v State of Western Australia [2007] WASCA 212; Riggall v State of Western Australia [2008] WASCA 69; (2008) 37 WAR 211; Poulton v State of Western Australia [2008] WASCA 97; State of Western Australia v Lee [2008] WASCA 150; State of Western Australia v SJH [2010] WASCA 40; Brand v State of Western Australia [2011] WASCA 269; GNR v State of Western Australia [2015] WASCA 5. In GNR, Brand and SJH, sentences other than a term of immediate imprisonment were imposed.

18 There are two unusual features of this case which, in our view, meant that it did not require the imposition of a term of immediate imprisonment. First, the appellant held an honest belief that the complainant was 16 years of age or more. The failure to inquire as to the complainant's age must be seen in the light of her attendance at the party in company with a group of people who were all around the age of 18 years of age or so. In addition, having viewed the taped record of interview of the complainant, we think it is understandable that the appellant thought she was at least 16 years of age.

19 Secondly, there was a positive finding by the primary judge that there was no element of grooming, inducement or coercion by the appellant. The appellant did not act in a predatory manner or misuse the age difference between them to persuade the complainant to engage in sexual activity. Whilst he had provided the complainant with alcohol and cannabis at the party, he had not done so with the object of lowering her inhibitions or inducing her to consent to sexual activity. The sexual activity was entirely instigated by the complainant, after the appellant had left the social gathering and gone to bed. The only sexual activity between the appellant and the complainant was on that occasion.

20 That, of course, is not to understate the seriousness of the offending but it does distinguish the circumstances of this offending from the usual circumstances of sexual offending against children. In our view, in the rather unusual circumstances of this case the sentence of nine months' immediate imprisonment was manifestly excessive.

21 It was for these reasons that we considered the appeal should be allowed, the sentence imposed by the sentencing judge set aside, and the appellant resentenced.

22 The court had before it the material necessary for resentencing purposes and, having regard to the time the appellant had already spent in custody, we concluded that the appellant should be sentenced to 4 months' imprisonment, suspended for 4 months.