Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA

Criminal law - Appeal against sentence - Application for an extension of time - Sexual penetration of a child of or over the age of 13 years and under the age of 16 years - 3 years' imprisonment with parole eligibility - Manifest excess - Whether the learned sentencing judge erred in determining the offence committed by the appellant was 'prevalent'

Sentencing Act 1995 (WA), s 6(4), s 9AA, s 39(3)

In lieu thereof, appellant sentenced to 18 months' immediate imprisonment

Brand v The State of Western Australia [2011] WASCA 269

Church v The State of Western Australia [2007] WASCA 215; (2007) 177 A Crim R 23

CJ v The State of Western Australia [2009] WASCA 42

Floresta v The State of Western Australia [2015] WASCA 93

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

Marris v The Queen [2003] WASCA 171

R v Chilvers [2003] WASCA 87

Simon v The State of Western Australia [2009] WASCA 10

Sunfly v The State of Western Australia [2009] WASCA 22

The State of Western Australia v Lee [2008] WASCA 150

The State of Western Australia v SJH [2010] WASCA 40; (2010) 200 A Crim R 228

1 McLURE P: I agree with Mazza JA that the sentence of 3 years immediate imprisonment is manifestly excessive and should be set aside. However, I would impose a term of immediate imprisonment of 10 months, backdated to commence on 23 February 2015. That is to reflect the unusual circumstances of the case.

2 In her statements to police, the complainant made allegations that the appellant had forcefully raped and detained her against her will. The appellant was originally charged with three offences, including deprivation of liberty. The pre-sentence report was based on the statement of material facts underpinning these charges.

3 However, the credibility of the allegations made by the complainant was undermined by the contents of a witness statement provided by the complainant's mother. The original charges were discontinued and an amended statement of material facts relied on. The sentencing judge found that the single offence of sexual penetration was consensual.

4 The complainant was close to the age of consent when the offence was committed. By her mother's account, the complainant was at the time of the offence headstrong, difficult to control and had been suspended or expelled from a number of schools. She had significant prior sexual experience with a number of sexual partners from the age of 13. There is no proper basis in the evidence for a finding that the complainant's consent was procured by the appellant positively misusing his position or the complainant's lack of sobriety. His position was that the complainant initiated the sexual conduct.

5 The seriousness of the offending is sourced in the appellant's knowledge of the fact that the complainant was under age, needed protection from herself and as a mature adult he was required to act in her best interests. Those factors make the suspension of the term of imprisonment inappropriate. Otherwise, having regard to the circumstances relating to the single offence and all the mitigating factors, the appellant's culpability is towards the low end of the scale.

7 MAZZA JA: Before this court is the appellant's application for an extension of time and, if granted, his appeal against sentence. The appeal was brought some 2 1/2 months out of time. The reason for the delay has been explained. The State did not oppose the granting of an extension of time. In the circumstances, I would grant an extension of time.

8 On 23 February 2015, following negotiations, the appellant pleaded guilty in the District Court, at what was regarded as the first reasonable opportunity, to one count of sexually penetrating a child of or over the age of 13 years and under the age of 16 years, contrary to s 321(2) of the Criminal Code (WA). The maximum penalty for this offence is 14 years' imprisonment. In brief, the appellant, who was 32 years of age at the time, had consensual sexual intercourse with the victim, who was aged 15 years 7 months. He was sentenced by Davis DCJ to 3 years' immediate imprisonment with eligibility for parole to commence on 23 February 2015.

9 There are three grounds of appeal. Grounds 1 and 3 allege implied error in that the sentence was manifestly excessive. Ground 3 alleges that the wrong type of sentence was imposed; specifically, it is said that her Honour should have imposed a suspended imprisonment order. Alternatively, if an immediate term of imprisonment was the only appropriate sentence, ground 1 attacks the length of the term. Ground 2 alleges an express error, namely, that her Honour erred in determining that the 'sort of offence' committed by the appellant is prevalent. Leave to appeal has been granted with respect to grounds 1 and 3, while the question of leave to appeal on ground 2 was referred to the hearing of the appeal.

10 For the reasons that follow, I would uphold ground 1 only and allow the appeal. I would set aside the sentence imposed by her Honour and substitute a sentence of 18 months' immediate imprisonment with eligibility for parole to commence on 23 February 2015.

The sentencing proceedings and the facts of the offending

11 Immediately after the appellant entered his plea of guilty and her Honour recorded a judgment of conviction, the prosecutor formally tendered the State brief and other sentencing material. Included within the State brief were several statements made by the victim and a statement made by her mother. The prosecutor then read a short statement of material facts as follows:

... the [victim] was 15 years old at the time of the offending and is now 17 years old.

The [appellant] is a 34 year old male. They were known to each to her as they had become friends over the course of a few weeks whilst they were both staying with their families at a caravan park campsite at ... Karratha. Sometime during the evening of Wednesday, 26 June 2013 the [appellant] and the [victim] consumed cannabis and alcohol. Later that evening the [victim] and the [appellant] were alone in her tent.

The [appellant], knowing the [victim's] age to be under 16 and knowing the [victim] to be intoxicated, had sex with her by penetrating her vagina with his penis (ts 12).

(a) the victim's statements in the State brief, to the effect that the appellant had forcefully engaged in sexual intercourse with her; and

(b) the statements made by the appellant to the author of the pre-sentence report, to the effect that the act of sexual intercourse was not only consensual, but also that the victim instigated it (ts 13 - 14).

13 The prosecutor accepted that the act of sexual intercourse occurred consensually but added that, at the time, the victim was, to the appellant's knowledge, intoxicated by alcohol and cannabis, although not to the point of unconsciousness (ts 14). It was not suggested that the appellant plied the victim with alcohol and cannabis. Defence counsel did not challenge those statements. In his plea in mitigation, defence counsel told her Honour that the appellant acknowledged that what he did was wrong (ts 19).

14 Her Honour put to the prosecutor, on the basis of the victim's statements, that, at the material time, the victim was sexually experienced. The prosecutor confirmed that this was so (ts 18 - 19).

15 Defence counsel initially submitted that her Honour should impose an intensive supervision order. When her Honour indicated that this was an unlikely outcome, he submitted that a suspended imprisonment order was the appropriate disposition (ts 23). The prosecutor submitted that the only appropriate sentence was a term of immediate imprisonment (ts 24).

16 In her Honour's sentencing remarks, the learned sentencing judge said this about the facts of the offending:

Briefly: the victim was 15 years old at the time of the offending and you [the appellant] were then 32 years old. You knew her because your families had become friends while staying at a caravan campsite in Karratha. Some time [sic] during the evening of Wednesday, 26 June 2013, you and the victim consumed cannabis and alcohol. I understand that you were both attending a party at the caravan park. Later that evening, both of you were alone in her [the victim's] tent. You, knowing that she was under the age of 16 and also knowing her to be intoxicated, had sex with her, vaginal penetrative sex (ts 27 - 28).

17 Her Honour found that the act of sexual intercourse occurred consensually, but that the appellant took advantage of the victim by reason of her state of intoxication. Her Honour made no finding as to who instigated the act of sexual intercourse. The learned sentencing judge accepted that the victim was sexually experienced. However, her Honour said that, by reason of the appellant's age, the onus was on him to refrain from sexual conduct with her (ts 28).

18 As to the impact of the offence upon the victim, her Honour found that the commission of the offence was likely to have an effect upon her. However, having regard to the contents of the victim's mother's statement, her Honour expressed doubt as to whether all of the matters the victim described in her police statements related directly to the offending (ts 30).

19 None of her Honour's factual findings were challenged in this court (appeal ts 4 - 5).

20 By the time he was sentenced, the appellant was 34 years of age. He had a positive childhood and remains close to his parents, who are supportive of him. He left school after completing year 10 and worked as a boilermaker and tyre fitter. However about four years ago, he sustained a spinal injury in a motor vehicle accident, resulting in ongoing back pain and an inability to carry out the occupations I mentioned. Prior to his imprisonment, he was in receipt of a disability support pension and engaged in a program to re-skill him for further employment.

21 In 1994, the appellant was diagnosed with anxiety and depression. Those conditions are related to his substance abuse. The appellant has a long history of illicit substance abuse. He commenced using cannabis at the age of 13 years and eventually began using harder drugs. At the age of 20, he was using amphetamines. Later, he became addicted to Oxycontin which, in turn, led to a heroin addiction. Since February 2014, the appellant regularly attended counselling through Hope Community Services and engaged with a doctor to address his drug use and other issues in his life. Nevertheless, the appellant continued to use illicit substances.

22 The appellant has a criminal history which is consistent with his illicit drug use. It comprises mostly convictions for possession of prohibited drugs, although he has also been convicted of various traffic offences, and, in October 2006, aggravated assault occasioning bodily harm. He has not been convicted in the past of a sexual offence and had never been sentenced to a term of imprisonment.

23 Having described the offending, the learned sentencing judge identified the following factors which were described as aggravating:

(a) The appellant engaged in penile/vaginal penetration, being the most serious offending of its kind for this type of offence.

(b) The disparity of 17 years in the ages between the appellant and the victim.

(d) The appellant took advantage of the victim when she was intoxicated.

(e) The likely effects of the offending upon the victim (ts 30).

24 Her Honour identified the mitigating factors as follows:

(a) The appellant's early plea of guilty, for which she gave the maximum discount of 25% pursuant to s 9AA of the Sentencing Act 1995 (WA).

(b) The offending was a one-off incident and did not involve persistence.

(c) There was no violence or physical force involved in the offending.

(d) The appellant had no prior relevant criminal history (ts 31).

25 Relevantly to ground 2, her Honour remarked that 'sexual offending against children is far too prevalent' (ts 30 - 31). Her Honour then stated that the dominant sentencing considerations for sexual offending of the kind engaged in by the appellant were 'punishment, general and personal deterrence and the protection of children' (ts 31).

26 Her Honour said that the aggravating factors 'far outweighed' the mitigating factors such that a suspended imprisonment order was inappropriate (ts 31 - 32).

28 The appellant submitted in substance that her Honour's comment about prevalence was erroneous. The appellant argued that the offence committed by the appellant, involving, as it did, consensual sexual intercourse between a 15 year old child and an adult man was not the kind of offence that was 'routinely dealt with in the District Court' and was not 'prevalent'. The appellant submitted that the offending in this case should be distinguished from cases of non-consensual sex between an adult and a child which, it was said, are more prevalent. No statistical evidence was adduced by the appellant to support the ground.

29 I do not accept the appellant's submissions. Her Honour's comment was general in its nature. It referred to the prevalence of 'sexual offending against children', a category into which the present case plainly falls. Sexual offences committed by adults upon children are an all too familiar part of the criminal jurisdiction of the District Court. Judges of that court deal with this type of offending on an almost daily basis and are in the best position to judge the prevalence (or otherwise) of offences of this nature. Further, when read in context, the essential point being made by her Honour was to identify (correctly) the dominant sentencing considerations for offences of a sexual nature committed by adults upon children. I am not persuaded that her Honour's comment concerning the prevalence of sexual offending against children was erroneous. Leave to appeal on ground 2 should be refused.

30 Imprisonment, whether suspended or not, is a sentence of last resort: s 6(4) the Sentencing Act. A term of imprisonment to be served immediately should not be imposed unless the court is satisfied that a suspended sentence is not appropriate: s 39(3) of the Sentencing Act. The same considerations relevant to the imposition of a term of imprisonment must be revisited in determining whether to suspend the term: CJ v The State of Western Australia [2009] WASCA 42 [13].

31 A claim of manifest excess is an allegation of implied error. For grounds 1 and 3 to succeed, the appellant must demonstrate that the sentence was unreasonable or plainly unjust. To determine whether a sentence is manifestly excessive, the sentence must be viewed in light of the maximum sentence prescribed for the offence (in this case, as I have mentioned, 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 offences of that type and the personal circumstances of the offender.

32 As to offences contrary to s 321(2) of the Criminal Code, while there is no tariff for such offending, an analysis of the cases reveals that, ordinarily, as a matter of fact, a term of immediate imprisonment is imposed. However, this does not relieve a sentencing judge of the obligation to assess whether, having regard to all relevant facts, circumstances and 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 of those matters, the case does not require the imposition of the generally appropriate type of sentence for the offence: HMN v The State of Western Australia [2015] WASCA 128 [26].

33 The primary purpose of the offence created by s 321(2) of the Criminal Code is the protection of children between the ages of 13 and 16 from sexual exploitation. The seriousness of the offending is increased if a person abuses a situation so as to enable that person to influence, persuade, pressure, force, manipulate or otherwise take advantage of a child to facilitate the commission of the offence. This is not the only purpose of the offence. Another purpose is to protect children between the ages of 13 and 16 from themselves, regardless of their level of maturity or sexual experience: The State of Western Australia v Lee [2008] WASCA 150 [10] - [11].

34 Based on her Honour's unchallenged findings of fact, there were elements of taking advantage in the appellant's offending, despite the conduct being consensual. The appellant knew, at the time of the offence, that the victim was 15 years of age and that she was intoxicated. He took advantage of her state of intoxication to engage in sexual intercourse with her. It is also relevant that there was a considerable disparity in the respective ages (17 years) and maturity of the appellant and the victim. However, the degree of taking advantage in this case was not as great as that seen in other cases, bearing in mind here that the victim was almost 16 years old. Additionally, there was an absence of such factors as force, coercion, grooming or persistence. Upon the basis of the victim's mother's statement, and notwithstanding the differences in their ages, the offence was committed in the context of the appellant and the victim having established friendly relations.

35 The appellant's early plea of guilty was the most significant mitigating factor. He did not have the mitigation of youth. Nor can it be said, having regard to his criminal history, that he is a man of prior good character. His illicit drug use is long standing and is apparently entrenched despite the assistance he has been given by his supportive parents and Hope Community Services.

36 The State conceded in its written submissions before this court that personal deterrence was not a major sentencing consideration. That concession was appropriate given the 'one-off' nature of the offending and the absence of any prior offending of a similar kind, or evidence that the appellant harbours a sexual interest in children. However, general deterrence and the protection of children were important sentencing factors in this case.

37 As the appellant has pointed out in his written submissions, there are cases which have been decided by this court (or its predecessor) in which a suspended imprisonment order has been upheld or imposed. The appellant referred to R v Chilvers [2003] WASCA 87; Marris v The Queen [2003] WASCA 171; Church v The State of Western Australia [2007] WASCA 215; (2007) 177 A Crim R 23; Simon v The State of Western Australia [2009] WASCA 10; Sunfly v The State of Western Australia [2009] WASCA 22; CJ and The State of Western Australia v SJH [2010] WASCA 40; (2010) 200 A Crim R 228.

38 To this list of cases may be added Brand v The State of Western Australia [2011] WASCA 269[1] and HMN.[2]

39 The appellant's reliance on Church is misplaced. The offender in that case was, in fact, sentenced to a term of immediate imprisonment at first instance. The appellant's appeal against that sentence was dismissed.[3]

40 It is unnecessary to set out the individual facts and circumstances of the comparable cases. Each has singular features which are not present here and, to my mind, do not support the proposition that her Honour erred in failing to make a suspended imprisonment order.

41 While the appellant's criminality fell towards the lower end of the scale of seriousness of offences contrary to s 321(2) of the Criminal Code, I have not been persuaded, having regard to all of the relevant circumstances, that her Honour erred in the exercise of her sentencing discretion by excluding a suspended imprisonment order as an appropriate sentencing option and imposing a term of immediate imprisonment. Ground 3 has not been made out.

42 This brings me to ground 1, which concerns the length of the term of immediate imprisonment.

43 I will not repeat what I have said earlier about the circumstances of the offending, the appellant's criminality and his personal circumstances.

44 In Simon, Steytler P reviewed the sentences customarily imposed by courts at an appellate level with respect to offences of the kind committed by the appellant [26] - [42]. A more recent comparator is Floresta v The State of Western Australia [2015] WASCA 93.

45 When the present case is measured against the yardstick of other sentencing cases, and acknowledging that the range of sentences customarily imposed does not mark the limits of the proper exercise of the sentencing discretion, the sentence imposed here appears inconsistent with the outcomes in those cases, having regard in particular to the appellant's criminality and his early plea of guilty.

46 The State submitted that the sentence imposed was 'high', but fell within the range of a sound sentencing discretion. I do not accept this submission. With great respect to the learned sentencing judge, the sentence was more than merely 'high'. It was, in all of the circumstances, manifestly excessive; that is, it was unreasonable and plainly unjust. I would allow ground 1 and set aside the sentence imposed at first instance.

47 This court has all of the material necessary to resentence the appellant. I have taken into account all of the facts and circumstances of the offending, the appellant's personal circumstances, all aggravating and mitigating factors, and the need for general deterrence and the protection of children. Consistent with the position taken by her Honour, I would discount the 'head sentence' (as defined in s 9AA of the Sentencing Act) by 25% pursuant to s 9AA of the Sentencing Act. In my opinion, a sentence of 18 months' immediate imprisonment satisfies all of the relevant sentencing objectives in this case. The appellant should be made eligible for parole and the sentence should be backdated to commence on 23 February 2015.

1. An extension of time to appeal is granted.
2. Leave to appeal on ground 2 is refused.
3. The appeal is allowed.
4. The sentence imposed by Davis DCJ on 23 February 2015 is set aside and in lieu thereof, the appellant is sentenced to 18 months' immediate imprisonment with eligibility for parole, backdated to commence on 23 February 2015.

[1] A 18-month intensive supervision order was upheld by this court on appeal.

[2] A 12-month intensive supervision order was imposed by this court on appeal.

[3] See Wheeler JA at [14], with whom Buss JA agreed at [45]; Pullin JA dissenting at [44].