Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA

Criminal law - Appeal against sentence - Aggravated burglary in a dwelling - Sexual penetration without consent - Manifest excess

Sentencing Act 1995 (WA), s 11

Criminal Appeals Act 2004 (WA), s 27(2), s 27(3)

Buxton v The State of Western Australia [2009] WASCA 6

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

Grubisic v The State of Western Australia [2011] WASCA 147; (2011) 41 WAR 524

Nannup v The State of Western Australia [2011] WASCA 257

Wilson v The State of Western Australia [2010] WASCA 82

Woodley v The State of Western Australia [2008] WASCA 92

2 MAZZA JA: This is an application for leave to appeal against sentence. The appellant was tried in the District Court before Stone DCJ and a jury on an indictment alleging two offences as follows:

(1) On 4 November 2011, the appellant, while in the place of the complainant without her consent, committed the offence of sexual penetration without consent, contrary to s 401(2) of the Criminal Code. Immediately before the commission of the offence the appellant knew or ought to have known that there was another person in the place. The place was ordinarily used for human habitation.

(2) At the same time and at the same place as count 1, the appellant sexually penetrated the complainant without her consent by penetrating her vagina with his finger, contrary to s 325 of the Code.

3 On 9 November 2012, the appellant was convicted as charged. On 11 December 2012, he was sentenced to 4 years 6 months' imprisonment with eligibility for parole in respect of count 1. His Honour imposed no penalty with respect to count 2, having regard to s 11 of the Sentencing Act 1995 (WA).

4 The appellant seeks leave to appeal against the sentence imposed on him for count 1 on the basis that it is manifestly excessive.

5 For the reasons that follow, the proposed ground of appeal has no reasonable prospect of succeeding and the appeal must be taken to be dismissed: s 27(2) and (3) of the Criminal Appeals Act 2004 (WA).

7 On the evening of 3 November 2011, the complainant, a backpacker from the United Kingdom, went to the Leederville Hotel and Club Bayview in Claremont to catch up with friends before going to Cairns. She became very intoxicated.

8 Eventually, she decided to go home. She had difficulty getting a taxi and became upset. The appellant approached her and asked her if she was all right. The appellant flagged down a taxi and asked the complainant if they could share the cost of the fare to their respective homes. She agreed to this request. The complainant and the appellant got into the taxi which

drove first to the complainant's home. Instead of remaining in the taxi, the appellant got out with the complainant. The complainant and the appellant parted company. The complainant entered her house, undressed and went to bed in a fold-out bed in the lounge room. After sending a text message to a friend, she fell asleep.

9 Somehow, the appellant entered the house. He had no one's consent to do so. The complainant awoke to find him pulling back her duvet and trying to get into her bed. The complainant told the appellant to get out. One of the complainant's housemates confronted the appellant and told him to leave; he did so via the front door. After he left the house, the front door was shut and locked.

10 Both the complainant and her housemate went around the house, securing the doors and windows. The complainant then went back to bed in the lounge room.

11 Instead of leaving the premises, the appellant knocked on the windows and called the complainant's name. The complainant went into her housemate's bedroom and got into her bed.

12 The complainant and her housemate heard noises from the kitchen. The housemate got up to investigate and found that the appellant had somehow re-entered the premises. The housemate told the appellant to leave. She then sought the assistance of two other people who were living in the house.

13 Rather than leave, the appellant made his way to where the complainant was sleeping. The complainant awoke to find the appellant crouching down next to her bed. There followed a struggle, during which the appellant inserted his fingers, without the complainant's consent, into her vagina. The complainant screamed and her housemate grabbed the appellant and threw him off the complainant. The appellant left the bedroom and then the house.

14 The complainant testified that the appellant inserted his fingers far enough into her vagina to cause pain. The police were called fairly soon after the incident and the complainant was subsequently medically examined. The doctor who examined her found injuries consistent with the digital penetration of the complainant's vagina. She found multiple recent genital injuries. She also observed recent bruising on the complainant's arms.

15 The appellant's defence at trial, which the jury plainly rejected, was that he had been invited into the house and that he did not sexually assault the complainant.

16 At the time of the offending, the appellant was the subject of a 12-month community based order for a series of dishonesty offences.

17 Not surprisingly, the victim impact statement showed that the offending has had a long-lasting emotional effect upon the complainant.

18 At the time he was sentenced, the appellant was almost 31 years of age. He was born and raised in Ghana and came to Australia in 2004. As a child, the appellant suffered sexual abuse. In Ghana, he worked as a graphic designer, but he had been unable to pursue that work after his arrival in Australia. He has had periods of employment in this country, predominantly as a sign maker.

19 The appellant has a history of substance abuse, particularly alcohol and cannabis. He told the author of the pre-sentence report that he had 'an insatiable appetite for sex and often [sought] the services of prostitutes to quell the urge'. Although he has convictions for dishonesty offences, he has not previously been convicted of burglary or offences involving violence.

20 His Honour described the offending as serious. He said that the complainant was particularly vulnerable because she was affected by alcohol. He noted that the appellant's behaviour was persistent. Having tried to get into the complainant's bed in the lounge room and then being told to leave, he returned and attacked her in her housemate's bed. The learned sentencing judge found that the appellant's intention throughout the events on the evening was to have sex with the complainant whether she wanted to or not. His Honour observed that the offending happened in the complainant's home, where she could expect to feel safe. He noted the adverse effects of what had occurred on the complainant.

21 His Honour said that he found it difficult to see any mitigating features. He accepted that the appellant's relatives were not in contact with him and that any term of imprisonment that was imposed would be hard for him without familial support. He noted that the appellant had cooperated during the trial.

22 Mr Karstaedt, on behalf of the appellant, submitted that the essential criminality of the appellant was the act of digital penetration. By reference to a number of decided cases, most notably Grubisic v The State of Western Australia [2011] WASCA 147; (2011) 41 WAR 524, he submitted that the sentence imposed upon the appellant was substantially outside the range of sentences customarily imposed for offences of digital sexual penetration and should be reduced.

23 The general legal principles applicable to appeals against sentence are well established and were set out by McLure P and Owen JA in Wilson v The State of Western Australia [2010] WASCA 82 [2]. This court can only intervene if the appellant establishes that the sentence imposed was plainly unjust and unreasonable.

24 To determine whether a sentence is manifestly excessive, it is necessary to view it in the perspective 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 occupies in 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.

25 The maximum sentence for aggravated burglary is 20 years' imprisonment. This is to be compared with the maximum penalty of 14 years' imprisonment for sexual penetration without consent.

26 In my opinion, it is erroneous to view the sentence imposed in this case as if it were for an offence solely involving an act of digital penetration. The offending plainly involved more than that and should be seen for what it is - an aggravated burglary involving sexual violence. In any event, as Buss JA pointed out in Grubisic, there is no tariff for sexual offences and each case must depend upon its own individual facts and circumstances. His Honour also pointed out that digital penetration is an offence which should not be underrated as to its seriousness [85].

27 There is no tariff for offences of aggravated burglary. It is an offence in which the circumstances of the offending and the offender can vary widely. As has been observed in a number of cases, in recent years sentences imposed for home burglary have increased to reflect the prevalence of the offence and to provide proper personal and general deterrence. Speaking generally, home burglaries which involve the commission of violence will be met with more severe penalties than those that do not. Recent cases dealing with aggravated burglaries such as Woodley v The State of Western Australia [2008] WASCA 92, Buxton v The State of Western Australia [2009] WASCA 6, Nannup v The State of Western Australia [2011] WASCA 257, all of which involved violence but not sexual violence, show that lengthy terms of imprisonment will be imposed for such offences, even on pleas of guilty and even when an offender is very young (Nannup).

28 As the learned sentencing judge said, there was very little to mitigate the appellant's offending and there were a number of aggravating features in relation to it. They were that:

(a) the complainant was vulnerable due to intoxication;

(b) the appellant was intent on sexually penetrating the complainant, whether she consented or not;

(d) the offending occurred in the complainant's own home;

(e) the appellant was, at the time, subject to a community based order; and

(f) the act of sexual penetration caused physical injury and significant ongoing psychological trauma to the complainant.

29 Considerations of personal and general deterrence are important in cases such as this. Persons who are vulnerable by reason of intoxication are not fair game for sexual exploitation. A person is entitled to feel and be safe in their own home.

30 Personal deterrence is a relevant factor in this case because it would appear from the pre-sentence report that the appellant has little insight into his offending and no remorse.

31 In all the circumstances of this case, I do not think that it is reasonably arguable that the sentence imposed on count 1 for the offence of aggravated burglary was plainly unjust and unreasonable. To the contrary, it represented a sound exercise of his Honour's sentencing discretion and should not be interfered with.

32 The ground relied upon by the appellant has no reasonable prospect of succeeding. The appeal must be dismissed.

1. Leave to appeal is refused.
2. The appeal is dismissed.