Criminal law - State appeal against sentence - One count of aggravated sexual penetration - Penile penetration of victim's mouth - Intoxicated victim attacked at railway station at 3.00 am - Respondent violently assaulted victim to overcome resistance - Respondent 18 years of age - On bail at time of offending - Sentence of 3 years and 2 months' imprisonment - Appeal allowed - Resentenced to 4 years and 6 months' imprisonment

Respondent resentenced to 4 years and 6 months' imprisonment

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

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

Lindsay v The State of Western Australia [2010] WASCA 142

Mountain v The State of Western Australia [2009] WASCA 161

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

Munmurrie v The State of Western Australia [2013] WASCA 167

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

The State of Western Australia v Littlefair [2013] WASCA 177

The State of Western Australia v Richards [2008] WASCA 134

Warburton v The State of Western Australia [2009] WASCA 113

2 NEWNES JA: This is a State appeal against sentence. The respondent was found guilty after trial in the District Court on one count of aggravated sexual penetration without consent, contrary to s 326 of the Criminal Code (WA). On 10 April 2013, he was sentenced by Derrick DCJ to 3 years and 2 months' imprisonment, with eligibility for parole. The appellant contends that the sentence was manifestly inadequate.

3 Leave to appeal was granted by Mazza JA on 29 June 2013.

4 In the afternoon and evening of 7 April 2012, the respondent attended a party at a friend's house. After consuming a considerable amount of alcohol, the respondent and some friends made their way towards the Burswood Casino. Police approached the group because some members of the group were street drinking. The respondent separated from the group because he knew that a warrant had been issued for his arrest.

5 The respondent made his way into Northbridge where after a couple of hours he decided to take a train home. He arrived at the Claisebrook Train Station just after 3.00 am and went to the Armadale platform to catch the train. He was still under the influence of alcohol at the time.

6 The only other person at the station was the complainant. She was under the influence of solvents that she had been sniffing that evening. The respondent sat down next to the complainant and asked if he could sniff from one of her bottles of solvent. She said no. The respondent then asked her to perform oral sex on him. She refused. The respondent persisted in his requests and the complainant continued to refuse.

7 The complainant eventually got up to move away from the respondent. As she walked away, the respondent grabbed her from behind and pulled her onto his lap. He also lifted her up from a front-on position. She was unable to resist in any significant way due to her intoxicated state. The respondent then put the complainant down and she walked away from him toward the other side of the seating booth. The respondent followed her and slapped her on the bottom.

8 When the complainant got to the other side of the booth, she sat down. The respondent ducked around the end of the booth so she could

not see him. He pulled his hood over his head. He unzipped his pants and removed his penis. He then approached the complainant, who tried to move away.

9 The respondent pushed the complainant back down onto the seat and repeated his demands for oral sex. He started pushing his penis towards her mouth and she tried to push him away. The respondent then overpowered her and managed to insert his penis into her mouth. After a short time the complainant managed to push the respondent away, but he again tried to push his penis into her mouth. He punched her to the side of the head a number of times in order to overcome her resistance. The respondent then forced his penis into her mouth and held her head against his crotch in an attempt to keep it there. This act constituted the offence. The punches to the complainant's head and bruising to her lips and face constituted the circumstances of aggravation.

10 The complainant finally managed to force the respondent away from her by pushing and kicking. At about the same time, a man on his way home from work at a hotel arrived on a different platform at the station, and seeing that something was wrong, called out. The respondent then ran off.

11 The respondent returned to the station some time later and caught the train to Cannington, where he was arrested by police.

12 After trial, the respondent was convicted of one count of aggravated sexual penetration without consent.

13 The sentencing judge described the offending as very serious, involving a degrading sexual act on a clearly intoxicated and obviously vulnerable young woman late at night at a deserted train station. His Honour noted that although the respondent had penetrated the complainant's mouth on two occasions he had been charged only in respect of the second occasion. While the respondent was to be sentenced only for one offence, the fact that the complainant had clearly resisted the first act of penetration increased the respondent's culpability for the second, where he had punched the complainant to the head and face in order to overcome her resistance before committing the act.

14 The sentencing judge noted that whilst the respondent had been under the influence of alcohol at the time, it was clear from the CCTV footage of the incident that the respondent was at all times in reasonable control of his faculties and fully aware that his conduct was wrong.

15 His Honour then turned to the respondent's personal circumstances. The respondent was the eldest of four children. His parents had separated when he was 14 and since the separation, his father had provided little emotional or financial support. A psychological report suggested that this may have had a significant adverse effect on the respondent, possibly contributing to the respondent asserting his masculinity through violent behaviour.

16 The respondent had completed year 12 schooling and commenced a mathematics course at Murdoch University with the object of enrolling to study geology there. The mathematics course was interrupted by a sentence of 3 months' imprisonment for aggravated robbery. However, the respondent had expressed a desire to study again in the future.

17 The sentencing judge noted that the respondent had no physical or mental health issues but, as the respondent recognised, he had an alcohol abuse problem. The respondent had commenced drinking alcohol at the age of 15 and smoking cannabis at the age of 14. By the age of 16, he was binge drinking. His Honour found that the respondent's drinking had contributed to his past and present offending.

18 A psychological report before the sentencing judge stated that psychometric testing indicated the respondent had anti-social personality traits, which the psychologist said confirmed the impression that the respondent had a general contempt for rules and social norms. It was noted in the report that the respondent had been involved in several incidents while in prison for the aggravated robbery and on remand for this offence which were consistent with such an attitude. The author of the report considered that the respondent had an unhealthy attitude towards young women and regarded young, non-Muslim women as sex objects. His Honour concluded that this attitude had contributed to the offending. His Honour also noted that the respondent had been assessed as being at a high risk of further sexual offending.

19 The sentencing judge observed that the respondent's age was a significant mitigating factor. The respondent was 18 years of age at the time of the offence and just over 19 at the time of sentencing. His Honour accepted that the respondent had shown 'very belated' remorse for the offending and accepted responsibility for it, referring in that context to statements the respondent had made to the author of a pre-sentence report and to a letter which the respondent had written to the court. His Honour also noted that the respondent had pleaded guilty on the first morning of the trial to an alternative charge of assault occasioning bodily harm, based on the circumstances of aggravation of the sexual penetration charge, but in light of his conviction for the more serious offence no conviction had been recorded on that charge. His Honour considered there was no mitigating value in the plea as it was on the false basis that the respondent had simply struck the complainant once. At trial, the respondent had denied any sexual activity involving the complainant.

20 The sentencing judge noted that the respondent had some convictions in the Children's Court, including one count of assault occasioning bodily harm and the count of aggravated robbery referred to earlier.

21 His Honour sentenced the respondent to 3 years and 2 months' imprisonment, with eligibility for parole.

22 The sole ground of appeal was that the sentence of 3 years and 2 months' imprisonment was manifestly inadequate.

23 When considering whether a sentence is manifestly inadequate, it is necessary to view the sentence in light of the maximum sentence prescribed by law for the offence (in this case, 20 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: Chan v The Queen (1989) 38 A Crim R 337, 342; The State of Western Australia v Littlefair [2013] WASCA 177 [61].

24 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 The State of Western Australia v Akizuki [2008] WASCA 267; (2008) 192 A Crim R 373 [3]; 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.

25 A number of cases were referred to by counsel but none of them is directly comparable with the offending in this case and I have been unable to find any cases which are directly comparable. I have, however, considered the cases mentioned and some other cases, although because of the significant differences in the nature of the offending and the offenders, they are of limited assistance. It is unnecessary to canvass them all.

26 In Akizuki, the offender pleaded guilty to one count of unlawful assault occasioning bodily harm, one count of aggravated sexual penetration without consent and two counts of attempted aggravated sexual penetration. The offender attacked the complainant while she was walking around a park at about 9.35 pm. He threw her to the ground and forced his fingers into her vagina, punching her in the face a number of times in an attempt to overcome her resistance. He then attempted to force his penis into the complainant's vagina. When the complainant broke free, the offender chased her, forced her to the ground and again attempted to penetrate her vagina with his penis. A total effective sentence of 2 years and 6 months' imprisonment was set aside on appeal and a sentence of 5 years' imprisonment imposed.

27 In his judgment in that case, Steytler P, having reviewed a number of cases, concluded that an average starting point for a case of penile penetration of the vagina without consent, in the absence of circumstances of aggravation and without taking account of factors in mitigation, was in the order of 4 years and 8 months' imprisonment. His Honour considered that nothing would be achieved by specifying a different starting point for each category of sexual penetration as it could not be assumed that one form of sexual penetration is necessarily more, or less, serious than another. While penile penetration will ordinarily be more serious than digital penetration, the seriousness of the offending will depend upon the particular circumstances. As Wheeler JA pointed out in C v The State of Western Australia [2006] WASCA 261 [35], there is no 'hierarchy' of sexual penetration.

28 Steytler P also referred in Akizuki to his decision in The State of Western Australia v Richards [2008] WASCA 134, in which the offender had been convicted after trial of penile penetration of the victim's vagina, where his Honour said that ordinarily for an offence of that kind, where there is no plea of guilty or other exceptional circumstances, a sentence of around 5 or 6 years' imprisonment could ordinarily be expected.

29 The suggested starting points are, of course, only a very general guide to the sentences appropriate for offences involving penile penetration of the vagina and cannot be applied as a matter of course in all such cases or necessarily be transposed to cases involving other forms of sexual penetration. Each case must depend upon its particular circumstances. They are, however, of some limited assistance.

30 In Mountain v The State of Western Australia [2009] WASCA 161, the offender was convicted after trial of four counts of sexual penetration and one count of attempted sexual penetration without consent. The counts of actual penetration concerned digital-vaginal and digital-anal penetration, and the attempted penetration involved the offender attempting to put his penis in the complainant's mouth. The offending was opportunistic and occurred in the toilet of a nightclub at around 3.00 am. While the offender forced himself on the complainant the offending was not accompanied by substantial violence. On appeal, a total effective sentence of 5 years and 4 months' imprisonment was set aside. The offender was sentenced to 2 years and 4 months' imprisonment for each count of penetration and to 1 year and 4 months' imprisonment on the attempted sexual penetration count, with a total effective sentence of 4 years and 8 months' imprisonment.

31 In Warburton v The State of Western Australia [2009] WASCA 113, the offender was convicted after trial of two counts of indecent assault and one count of sexual penetration without consent in circumstances of aggravation. The complainant was a 47-year-old mentally disabled woman and the offender was a friend of a neighbour of the complainant. The indecent assault charges concerned kissing on two occasions. The sexual penetration charge arose from the offender having intercourse with the complainant and ejaculating on her breasts (the circumstance of aggravation). There was no violence involved. The offender was 41 years old and had a minor criminal record which did not involve any sexual offending. The offender was sentenced to 2 years' imprisonment for both counts of indecent assault and 8 years' imprisonment for the aggravated sexual penetration count, to be served concurrently. An appeal against sentence was upheld and a total effective sentence of 6 years and 6 months' imprisonment imposed.

32 In Lindsay v The State of Western Australia [2010] WASCA 142, the offender pleaded guilty to three counts of aggravated sexual penetration without consent. The first count involved digital penetration of the complainant's vagina, while the second and third counts involved penile penetration of the complainant's mouth. Considerable violence was involved, including smashing a bottle over the complainant's head, hitting her around the head and biting her in a number of places. The offender also urinated in the complainant's face. The complainant had been in a relationship with the offender and the complainant had initiated contact on the day of the offences although at the time there was a restraining order in place against the offender. Both the complainant and the offender were intoxicated. The offender was aged 32 at the time of sentencing and had a long substance abuse problem which was related to serious mental health issues. He had an extensive record of violent offending. He was sentenced to terms of 6 years, 7 years and 8 years' imprisonment respectively for the offences to be served concurrently, resulting in a total effective sentence of 8 years' imprisonment. An appeal against sentence was dismissed. I note that this case differs from the present case not only in the offending but also in the plea of guilty.

33 In Munmurrie v The State of Western Australia [2013] WASCA 167, the offender was convicted after trial on one count of sexual penetration without consent and one count of attempted sexual penetration without consent. The offender had approached the complainant late at night while the complainant was walking home and asked her for sex. When she refused, he chased her and attempted to force the complainant to perform oral sex on him, which she managed to avoid. In an attempt to escape, she then told the offender that she lived nearby and walked to her home with a view to getting help from family members, but no-one was home when they arrived. The complainant smoked some cannabis with the offender in an attempt to deflect him, but the offender again demanded sex and when the complainant resisted the offender violently restrained her and had intercourse with her. The respondent was 18 years old when he committed the offences and had an extremely deprived background and lengthy criminal record as a juvenile. An application for leave to appeal against a total effective sentence of 4 years and 3 months' immediate imprisonment was dismissed.

34 The offending in this case was very serious. It involved a violent, prolonged, and degrading attack on an obviously vulnerable, visibly intoxicated young woman at a deserted train station in the early hours of the morning. It is evident that when the respondent's attempts to persuade the complainant to perform oral sex were unsuccessful he had no compunction about resorting to force, overpowering her and forced his penis into her mouth. When the complainant pushed the respondent away and resisted a further attempt at oral penetration, he responded by punching her to the head to cause her to succumb. It appears from the CCTV footage which went into evidence at trial (which I have viewed) that the respondent punched the complainant in the order of nine times in a sustained and violent attack. The respondent then forced his penis into the complainant's mouth again and on this occasion he held her head against his crotch to prevent her resisting.

35 The respondent fled the scene as the result of the chance intervention of a person who arrived on an adjacent platform.

36 The respondent's youth is a very significant mitigating factor. It must, however, be weighed against the seriousness of the offending and the respondent's antecedents. It is also a mitigating factor that the respondent was found to have shown belated remorse and acceptance of responsibility for the offending. There is otherwise little by way of mitigation. The respondent was not entitled to the benefit to which he would have been entitled on a plea of guilty. Nor, as the sentencing judge observed, was he entitled to any benefit for his plea of guilty to the offence of assault occasioning bodily harm based as it was on a false assertion that he had done no more than hit the complainant once.

37 The respondent has prior convictions as a minor for one count of assault occasioning bodily harm and one count of aggravated robbery, the latter having been committed in November 2011, some five months before this offence. When the current offending occurred the respondent was on bail for the aggravated robbery offence and in breach of a curfew which was a condition of bail.

38 While the respondent has said that he intends to turn his life around, the conduct he exhibited while in prison after this offending is not encouraging. The psychological report indicates that the respondent has aggressive and antisocial tendencies, and that his unhealthy attitude towards young women was a major contributing factor to his offending. He was assessed as being at a high risk of sexual reoffending. Having regard to that assessment, the serious nature of the offending and the respondent's antecedents, the issues of personal deterrence and protection of the public are of particular significance in this case.

39 In my view, in the circumstances the sentence of 3 years and 2 months' imprisonment fell outside a proper exercise of the sentencing discretion. It was so inadequate as to manifest error.

40 The respondent did not seek to invoke the residual discretion the court has to decline to allow an appeal against a sentence that is erroneously lenient. There would, in any event, have been no justification for the exercise of the discretion in favour of the respondent.

41 I would allow the appeal and set aside the sentence imposed by the sentencing judge.

42 It is then necessary to resentence the respondent. This court has the material necessary to do so.

43 Having regard to the matters set out above, and taking into account all relevant sentencing considerations, I consider that a sentence of 4 years and 6 months' imprisonment should be imposed, to be taken to have commenced on 3 October 2012. The respondent should remain eligible for parole.

1. allow the appeal;
2. set aside the sentence imposed by the sentencing judge; and
3. sentence the respondent to 4 years and 6 months' imprisonment, with eligibility for parole.

45 MAZZA JA: I have read the reasons in draft of Newnes JA. I have also had the opportunity of seeing the CCTV recording taken from the railway platform. While it does not show the actual offence, it shows just how forcefully the respondent punched the victim. I agree with his Honour that the sentence imposed was manifestly inadequate, for the reasons that he gives. I also agree with the orders that he proposes.