Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA

Criminal law - Sentence - Sexual penetration without consent - Whether sentence manifestly excessive - Turns on own facts

Criminal Appeals Act 2004 (WA), s 41(4)(b)

Sentencing Legislation (Transitional Provisions) Amendment Act 2008 (WA)

Sentencing Legislation Amendment and Repeal Act 2003 (WA)

Original sentence of 3 years and 4 months' imprisonment set aside

C v The State of Western Australia [2006] WASCA 261

Cavill v The State of Western Australia [2008] WASCA 108

Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321

House v The King [1936] HCA 40; (1936) 55 CLR 499

Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665

R v Clark [2000] WASCA 229

R v Cleak [2004] WASCA 72

R v Ngui [2000] VSCA 78; (2000) 1 VR 579

The State of Western Australia v Akizuki [2008] WASCA 267

The State of Western Australia v BLM [2009] WASCA 88; (2009) 256 ALR 129

The State of Western Australia v Collier [2007] WASCA 250; (2007) 178 A Crim R 310

The State of Western Australia v Wallam [2008] WASCA 117; (2008) 185 A Crim R 116

Wong v The Queen [2001] HCA 64; (2001) 207 CLR 584

1 McLURE JA: This is an appeal against sentence. The appellant was convicted after trial of one count of sexual penetration without consent contrary to s 325 of the Criminal Code (WA). He was sentenced on 15 December 2008 to a term of immediate imprisonment of 3 years and 4 months. It was a sentence to which the transitional provisions of the Sentencing Legislation Amendment and Repeal Act 2003 (WA) applied.

2 The appellant contended in his grounds of appeal that the sentence is manifestly excessive both in the type of sentence imposed and the length of the term. As to the former, the appellant contended in ground 1 that the sentencing judge erred in failing to suspend the term of imprisonment.

3 At the time of the offence, in November 2006, both the appellant and the complainant were aged 18. They had met a year earlier in Geraldton when they had a brief sexual encounter.

4 During a subsequent visit to Perth, the appellant made contact with the complainant and they met in Northbridge in the company of the complainant's friends. Both the appellant and the complainant consumed alcohol before returning to the complainant's house. The trial judge describes them as both being tired and intoxicated. The complainant offered the appellant a futon bed in the spare room to sleep on. A short time after they each went to bed the appellant went into the complainant's room and said the futon was uncomfortable. The complainant permitted the appellant to sleep on her bed. After the complainant went to sleep, the appellant sexually penetrated her vagina with his penis. The appellant withdrew when the complainant woke up. The jury rejected the appellant's defence that he had acted under an honest and reasonable but mistaken belief that the complainant had consented to intercourse.

5 The appellant had no relevant prior convictions and had been in continuous employment since leaving school. The sentencing judge accepted that the offence was out of character.

6 There was a significant delay of around 13 months between the commission of the offence and the appellant being interviewed by police. The delay was not attributable to the appellant.

7 The appellant does not rely on an express error in the sentencing judge's reasons but on the implication of error arising from the sentence itself. In determining whether a sentence is manifestly excessive regard is had to the maximum sentence for the crime, the level of seriousness of the circumstances of the offence, the sentences customarily imposed and the personal circumstances of the offender.

8 Ordinarily, a term of immediate imprisonment is the only appropriate penalty for the offence of sexual penetration without consent, the maximum penalty for which is 14 years. A lesser type of sentence will be imposed in exceptional circumstances. What is exceptional can vary from case to case and the assessment must be based on all relevant sentencing factors. At the hearing of the appeal the appellant abandoned his claim that the sentencing judge erred in failing to suspend the term of imprisonment.

9 Although the jury rejected the appellant's defence that he had an honest and reasonable but mistaken belief that the complainant had consented to sexual intercourse, the surrounding circumstances remain relevant in assessing the objective level of seriousness of the offence. There had been a previous brief sexual encounter between the appellant and the complainant who were both aged 18 at the time of the offence; the appellant was on the complainant's bed with her permission; and there was no violence, threatening behaviour or intimidation. Thus the circumstances of the offending are at the low end of the scale of seriousness of crimes of this type. Moreover, the appellant was young, had no relevant prior convictions and his conduct was out of character. The significant delay between the commission of the offence and the appellant being interviewed by police is also mitigatory.

10 I have had regard to sentences imposed for offences of this type which are conveniently collected in the reasons of Steytler P in The State of Western Australia v Akizuki [2008] WASCA 267. I have had particular regard to R v Clark [2000] WASCA 229 and R v Cleak [2004] WASCA 72 as they are the most closely comparable cases. In Clark, the offender, who was nearly 21, was sentenced to a term of imprisonment of 2 years and 5 months (the post-transitional conversion) for one count of sexual penetration of the complainant who was a few days short of her 15th birthday. She was very intoxicated and unconscious at the time of the offence. There was no arguable basis on the established facts to support a defence of consent. The offender was convicted after a trial. The circumstances of the offending in Clark were more serious than in the present case.

11 In Cleak, the 18-year-old offender pleaded guilty at the commencement of his trial on one count of sexual penetration of the complainant who was aged 16. A sentence of 18 months' imprisonment

suspended for 12 months was overturned and a sentence of 20 months' immediate imprisonment was substituted on appeal. There had been no prior sexual involvement between the two. The complainant was very intoxicated and in a deep sleep when the offender entered uninvited into the room where the complainant was sleeping and committed the offence. The complainant's age and the circumstances of the offending put the offending in Cleak higher up the scale of seriousness than the present case.

12 The standards of sentencing customarily imposed do not determine the range of a sound sentencing discretion for the reasons I gave in R v Akizuki [71]. As I also noted in that case, the actual sentence imposed in a comparable case is not the only correct sentence; it is a sentence that is within the sound sentencing range. Regard is had to sentences customarily imposed in order to achieve reasonable consistency.

13 The case review supports the conclusion that the circumstances of the offence in this case are at the low end of the scale of seriousness of crimes of this type and that the sentence of 3 years and 4 months (5 years pre-transitional) is manifestly excessive. There being a sentencing error, this court is entitled to intervene and re-sentence the appellant, it having all the necessary material to do so. Having regard to all the relevant sentencing factors detailed earlier, a sentence of 2 years is all that is required to meet the recognised sentencing objectives.

14 For these reasons, I would allow the appeal, set aside the sentence imposed by the trial judge and in lieu thereof impose a term of 2 years' imprisonment to commence from 15 December 2008.

15 BUSS JA: I agree with McLure JA, generally for the reasons she gives, that the appeal should be allowed, the sentence imposed by the learned primary judge set aside and the appellant re-sentenced to a term of 2 years' immediate imprisonment, back-dated to 15 December 2008, with eligibility for parole. It is unnecessary, in the present case, to consider the observations of McLure JA in The State of Western Australia v Akizuki [2008] WASCA 267 [71] or express an opinion on her Honour's comments at [12] above.

16 MILLER JA: I have had the opportunity of reading the draft reasons of McLure JA in this matter. I agree generally for the reasons given by her Honour that the appeal should be allowed, the sentence imposed by the trial judge should be set aside and in lieu thereof the appellant should

be sentenced to a lesser term of imprisonment. I do not, however, agree to a reduction of the sentence to 2 years' imprisonment. In my opinion, a sentence of 2 years 6 months' imprisonment should be substituted.

17 I have had regard to the decisions in R v Clark [2000] WASCA 229 and R v Cleak [2004] WASCA 72. They are the most comparable cases to this one.

18 In Clark, the respondent was found guilty after trial of one count of aggravated sexual penetration without consent. The circumstance of aggravation was that the complainant was between the ages of 13 and 16 years. The complainant was almost 15 years of age.

19 The facts of the case were summarised by Wheeler JA (with whom Kennedy and Pidgeon JJ agreed), at [4]:

Briefly, the relevant facts are as follows. In April 1998 the complainant, who was then some few days short of her 15th birthday, attended a family celebration at a local hotel. She drank spirits and beer at the hotel and consumed more alcohol thereafter at the family farmhouse where celebrations continued. The respondent was present at both locations. He was then aged 20 years and approximately 10 months and had also consumed alcohol on that night, although he does not appear to have been significantly intoxicated. The complainant, on the other hand, was very intoxicated and in the early hours of 10 April, became ill. The respondent persuaded the complainant to take a walk with him, suggesting that it would make her feel better. Family members realised at some time that the complainant was missing and went searching for her. Various people called out the complainant's name without response, but some distance from the rear of the farmhouse a cousin of the complainant found the respondent lying on top of the complainant. Both were naked from the waist down. The complainant appeared to be unconscious and her cousin found her difficult to rouse. She was assisted back to the house. She recalled going, or falling, to the ground but had little recollection of events thereafter until her cousin appeared.

20 The respondent in Clark was sentenced to 3 years 8 months' imprisonment and the Crown appealed against the adequacy of that sentence. At the relevant time, the principles of 'double jeopardy' applied, so that there was 'an attitude of restraint' by the courts in relation to what were then Crown appeals: Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321 per Kirby J, at [62]; The State of Western Australia v Collier [2007] WASCA 250; (2007) 178 A Crim R 310 per Steytler P, at [18] - [23]. The 'double jeopardy' principle was abolished by the amendment to s 41(4)(b) of the Criminal Appeals Act 2004 (WA). The consequence of this is that in relation to sentences pronounced after 27 April 2008 any appeals by the prosecution are to be dealt with in accordance with the principles applicable to an appeal by a sentenced person; namely, those set out in House v The King [1936] HCA 40; (1936) 55 CLR 499, at 504 - 505: see The State of Western Australia v Wallam [2008] WASCA 117; (2008) 185 A Crim R 116 per Miller JA, at [66] - [67].

21 Clark was also a 'pre-transitional' decision, in the sense that it pre-dated the introduction of the 'transitional provisions' which required the reduction of all sentences by a mandatory one-third: Sentencing Legislation Amendment and Repeal Act 2003 (WA). Those provisions have now been repealed by the Sentencing Legislation (Transitional Provisions) Amendment Act 2008 (WA), but the practical effect of the repeal has been minimal: see The State of Western Australia v BLM [2009] WASCA 88; (2009) 256 ALR 129 per Wheeler and Pullin JJA, at [43].

22 In Clark, the sentence of 3 years 8 months' imprisonment converted to a sentence of approximately 2 years 5 months and 10 days in post-transitional terms. It was a case in which the respondent had been found guilty after trial. Wheeler JA said, at [14], that the most that could be said was that the sentence was 'not a conventional one, sentences being more usually expressed in periods of whole or half years', but the court dismissed the appeal.

23 The facts in Clark indicate some differences from the present case. There was a more significant age difference between the complainant and the respondent (almost six years) and the incident of sexual intercourse occurred in a relatively isolated area at the back of a farmhouse.

24 Cleak was also a Crown appeal against sentence. It was a case that attracted the 'double jeopardy' principle, because the sentence appealed from was dated 18 July 2003. It was a sentence governed by the 'transitional provisions'. The offence of sexual penetration without consent occurred in circumstances which were summarised by Wheeler JA (with whom Steytler P and McKechnie J agreed), at [4] - [5], as follows:

The circumstances of the offence were as follows. The respondent turned 18 on 25 October 2001, and on 27 October had a party at home, where he lived with his parents, to celebrate that occasion. He had many friends there for the party and they drank alcohol, talked, and listened to music. It appears that the respondent also used some marijuana. The complainant was a young woman of 16 years of age whom the respondent had known for most of his life. He was a good friend of her older brother's. There had been no romantic involvement between them; in fact, she considered him to be 'like a brother' to her. She drank a substantial quantity of alcohol and became very intoxicated. By about midnight, she was obviously affected by alcohol and was falling asleep at the table where she sat. Her friends suggested that she should lie down and the respondent suggested that she could lie down on his bed because he was planning not to go to bed but to party all night.

The complainant's friends took her to the respondent's bed and put her on it, wearing most of her clothes, but not her shoes. She immediately fell into a dead sleep and sometime later awoke to a tugging sensation with a person pulling her jeans up. A voice she recognised as that of the respondent said to her words to the effect of 'You're so sexy'. She heard the sound of him zipping up his clothes and saw him leaving the room. She then became aware of a stinging sensation in her vagina and of the fact that her clothes were disarranged. She realised that he had had sex with her.

25 In my opinion, the facts in Cleak are similar to those which occurred in the present case. The age difference between the complainant and the respondent was only two years (they were aged 16 and 18 years respectively) and intercourse occurred whilst the complainant was asleep after the respondent had suggested that the complainant could lie down on his bed. The complainant's friends took the complainant to the respondent's bed and put her on it, where she went into a deep sleep. She awoke after sexual intercourse had occurred, but realised immediately that it had occurred.

26 There were, however, some differences. The first is that there were some aggravating factors in the offence committed by the respondent in that case, particularly the breach of the trust which the complainant reposed in the respondent (see Wheeler JA, at [14]). There was no question of any breach of trust in the present case, as the complainant and the appellant were of the same age and the relationship between them was different from that which existed in Cleak.

27 The second difference (and it is related to the first) is that in Cleak's case there had been no prior romantic involvement between the complainant and the respondent. The complainant considered the respondent to be 'like a brother'. He was a good friend of her older brother. In the present case, there had been some prior romantic involvement between the complainant and the appellant. There had been an earlier occasion of sexual intercourse.

28 In Cleak, Wheeler JA made some observations about the minimum sentence applicable to a case of the type under appeal, at [16]:

Even giving full weight to all the mitigating factors, and placing the offence towards the lower end of offences of the kind, I am unable to see how a sentence of less than 3 years imprisonment could conceivably have been imposed.

These comments were made in the context of 'pre-transitional' sentences, to which a one-third discount was applicable.

29 The appeal was allowed and the suspended sentence of imprisonment was set aside. A sentence of 20 months' imprisonment to be served immediately was substituted. (It would have been a sentence of 2 years 6 months but for the application of the transitional provisions.)

30 Wheeler JA's observations about the 'normal' sentence in a case of this nature are relevant to the present case, because they suggest that in such a case (absent the double jeopardy issue and after deduction of one-third) it will be unusual for a sentence of less than 2 years' imprisonment to be imposed. Of course, there is no tariff in cases of this nature, but comparable cases and sentences imposed in these cases are a guide to the sentence applicable. Even then, questions of whether the offender pleaded guilty or not guilty are important. Comparable cases may set a range, but not every comparable case does so.

31 It is clear from the judgment of Steytler P in The State of Western Australia v Akizuki [2008] WASCA 267, at [68], that there is infinite variation in the circumstances in which cases of sexual penetration without consent occur. Sentences for the offence will therefore vary from case-to-case and sometimes significantly.

32 There is a need for 'reasonable' consistency in the sentencing process (Wong v The Queen [2001] HCA 64; (2001) 207 CLR 584 per Gleeson CJ, at [6]), but the search for sentencing consistency should not be permitted to usurp the discretion of the sentencing judge: see R v Ngui [2000] VSCA 78; (2000) 1 VR 579 per Winneke P (Callaway and Buchanan JJA agreeing), at [12].

33 In my opinion, the case of the present appellant bears some similarity to that of the respondent in Cleak. In each case, the offender pleaded not guilty and went to trial, although in Cleak the offender pleaded guilty after the trial began. In each case, there was little or no difference in age between the complainant and the offender. In each case, the act of intercourse occurred whilst the complainant was asleep. This does not mean, however, that exactly the same sentence is called for. The circumstances of every offence of unlawful sexual penetration must be determined by its own individual circumstances: Akizuki per Steytler P, at [68]; C v The State of Western Australia [2006] WASCA 261 per Wheeler JA, at [35]; Cavill v The State of Western Australia [2008] WASCA 108 per Miller JA, at [266] - [267].

34 Having regard to the decisions of the Court of Appeal in the cases to which I have referred, and taking full account of the discretion reposed in the sentencing judge (see also Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665, at [15]), I am of the opinion that the appeal should be allowed, the sentence imposed by the sentencing judge should be set aside and the appellant should be resentenced to a sentence of 2 years 6 months' imprisonment.