File No : PE 41322 of 2008, PE 41323 of 2008, PE 48524 of 2009

Criminal law and procedure - Appeal against sentence for offence of indecent assault - Whether sentencing magistrate failed to take into account adequately the mental impairment of the offender - Whether the sentence he imposed for the indecent assault was manifestly excessive

Criminal Appeals Act 2004 (WA), s 14

Sentencing Act 1995 (WA), s 80

First Respondent : Director of Public Prosecutions (WA)

Second Respondent : Director of Public Prosecutions (WA)

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

Dragon v The State of Western Australia [2008] WASCA 252

Evans v Vanderheide [2001] WASCA 352

F v The State of Western Australia [2008] WASCA 100

Furber v The Queen [2008] WASCA 233

Johnson v Hayter [2001] WASCA 118

L v The State of Western Australia [2007] WASCA 186

McDonald v White [2007] WASCA 213

Narkle v Hamilton [2008] WASCA 31

R v Engert (1995) 84 A Crim R 67

R v Tsiaras [1996] VicRp 26; [1996] 1 VR 398

R v Verdins [2007] VSCA 102; (2007) 16 VR 269

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

RJB v The State of Western Australia [2009] WASCA 49

Royer v The State of Western Australia [2009] WASCA 139

SA v McKinnon [2009] WASC 7

Sakkers v Thornton [2009] WASC 175

Veen v The Queen (No 2) [1988] HCA 14; (1987) 164 CLR 465

Withnell v Walker [2005] WASCA 8

Wright (1997) 93 A Crim R 48

1 This is an appeal by leave against sentence. The grounds for the appeal are that the sentencing magistrate did not adequately take into consideration the mental impairment of the appellant, and that he imposed a sentence that was manifestly excessive.

2 The appeal involves the application of well understood principles of sentencing in this state.

3 I begin by reviewing the background to the appeal, before describing the appeal, and the grounds of appeal. For each of those grounds, I review the principles applicable before applying those principles to this appeal.

4 By Prosecution Notice 41322/08 - 41323/08 the appellant was charged with two offences, both breaches of a violence restraining order. The first charge was that on 23 June 2008, having been personally served with a violence restraining order, he had breached the order by communicating with and being within 10 m of the protected person. The second charge was that on 1 July 2008, having been so served with that order, he had breached it by communicating with and being within 10 m of the protected person.

5 On 21 August 2008 in the Perth Magistrates Court Magistrate Wheeler sentenced the appellant to a term of imprisonment of 6 months and 1 day, stated to be concurrent, and suspended in each case.

6 By Prosecution Notice 48524/09 the appellant was charged with the offence that on 16 July 2009 he unlawfully and indecently assaulted the complainant contrary to Criminal Code (WA) (Code) s 323. The appellant pleaded guilty to this offence and on 29 September 2009 in the Perth Magistrates Court Magistrate Heaney sentenced him for this offence and for the offences for which he had received the suspended sentences of imprisonment. The latter sentencing was I accept under Sentencing Act 1995 (WA) (Sentencing Act) s 80.

7 The statement of material facts for the indecent assault, as recited at the hearing by the learned magistrate without objection from counsel for the appellant, indicated that the complainant was a 17-year-old female. There is no indication the complainant and the appellant had any prior acquaintance. At 12.30 pm on 16 July 2009 the appellant had followed the complainant from her work location in a city arcade to an upstairs storeroom via a shopping centre elevator. As the elevator doors had been about to close, the appellant had run towards the doors, thrusting his hands through the gap, stopping them from closing.

8 The appellant had engaged the complainant in conversation, saying 'You are too glamorous to work in this area' and 'Do you have a boyfriend?' The appellant's manner had caused the complainant to be concerned for her safety. By this stage the elevator had stopped at the second floor. The appellant then stated he was going to walk away for a while. Turning to his right he walked away.

9 Shortly afterward, the appellant had followed the complainant through to the staff only area. He walked up behind her and ran his hands up her bare left arm, moving it across to her left shoulder and stroking her lower back and buttocks up and down. The complainant then walked into the storeroom and locked the door. She was shaking with fear.

10 The complainant attempted to gain entry by rattling the door handle several times, calling out to the complainant, 'Can you show me something? I need you to show me something'.

12 On 29 September 2009 for the indecent assault Magistrate Heaney sentenced the appellant to a term of imprisonment of 18 months to be served immediately but backdated to 7 August 2009, the date he went into custody on that charge.

13 At the same hearing the learned magistrate activated the suspended terms of imprisonment in full, ordering them, as terms of 'six months' imprisonment' (ts 9) to be served concurrently. It is accepted that the concurrency was with each other and with the sentence for the indecent assault, making a total effective sentence of 18 months imprisonment to be immediately served.

14 I note that the suspended terms of imprisonment were 6 months and 1 day, not 6 months. It was common ground there was no basis on which the learned magistrate under Sentencing Act s 80(3) could do otherwise than order the whole of the terms of imprisonment that were suspended be served. However, I consider nothing turns on this, except as a resentencing may be appropriate.

15 By appeal notice dated 27 October 2009 the appellant sought leave to appeal against these sentences.

16 On 20 November 2009 Jenkins J of this court gave leave to appeal.

1. The Learned Magistrate erred in law by failing to adequately take into account a relevant consideration in determining the sentence for the Appellant, namely the mental impairment of the Appellant.
2. The Learned Magistrate erred in law in imposing a sentence that was manifestly excessive in the light of the circumstances of the offending, the personal circumstances of the Appellant, particularly his disability, the plea of guilty and sentencing standards for offences of this type.
3. The Learned Magistrate erred in law by failing to take into account or failing to adequately take into account the time the Appellant had in custody at Graylands Hospital in sentencing the Appellant.

18 At the hearing before me the appellant abandoned the third ground.

19 The appellant also confirmed that no appeal was taken against the activation of the suspended sentences.

Ground 1: the mental impairment of the appellant

20 The Court of Appeal has recently addressed the relevance of mental impairment to sentencing. In F v The State of Western Australia [2008] WASCA 100 [38] - [41] Steytler P, with whom McLure and Miller JJA agreed, referring to R v Engert (1995) 84 A Crim R 67, R v Tsiaras [1996] VicRp 26; [1996] 1 VR 398 and Wright (1997) 93 A Crim R 48, among other authorities, said this:

A mental illness does not have to be the sole cause of the commission of a crime, or even a cause of the commission of the crime, in order to be relevant to sentencing: Benitez v The Queen [2006] NSWCCA 21; (2006) 160 A Crim R 166 [36]. In ... Engert ... 71, Gleeson CJ said:

In truth however ... the question of the relationship, if any, between the mental disorder and the commission of the offence, goes to circumstances of the individual case to be taken into account in the application of the relevant principles. The existence of such a causal relationship in a particular case does not automatically produce the result that the offender will receive a lesser sentence, any more than the absence of such a causal connection produces the automatic result that an offender will not receive a lesser sentence in a particular case. For example, the existence of a causal connection between the mental disorder and the offence might reduce the importance of general deterrence, and increase the importance of particular deterrence or of the need to protect the public. By the same token, there may be a case in which there is an absence of connection between the mental disorder and the commission of the offence for which a person is being sentenced, but the mental disorder may be very important to considerations of rehabilitation, or the need for treatment outside the prison system.

It has long been held that, in the case of an offender suffering from a mental disorder or abnormality, general deterrence is a factor which should be given relatively less weight than in other cases because such an offender is not an appropriate medium for making an example to others: R v Letteri (Unreported, NSWCCA, 18 March 1992) (Gleeson CJ, Sheller JA & Badgery-Parker J) and the cases there cited.

In ... Tsiaras ... 400 the court (Charles & Callaway JJA & Vincent AJA) said that serious psychiatric illness not amounting to insanity is relevant to sentencing in at least the following five ways:

First, it may reduce the moral culpability of the offence, as distinct from the prisoner's legal responsibility. Where that is so, it affects the punishment that is just in all the circumstances and denunciation of the type of conduct in which the offender engaged is less likely to be a relevant sentencing objective. Second, the prisoner's illness may have a bearing on the kind of sentence that is imposed and the conditions in which it should be served. Third, a prisoner suffering from serious psychiatric illness is not an appropriate vehicle for general deterrence, whether or not the illness played a part in the commission of the offence. The illness may have supervened since that time. Fourth, specific deterrence may be more difficult to achieve and is often not worth pursuing as such. Finally psychiatric illness may mean that a given sentence will weigh more heavily on the prisoner than it would on a person in normal health.

In Wright ... 51, Hunt CJ at CL (with whom Hidden J agreed & Gleeson CJ generally agreed) said that, if an offender acts with knowledge of what he is doing and knowledge of the gravity of his actions, moderation of the consideration of general deterrence 'need not be great'.

21 I did not understand counsel for the appellant to contest the applicability of these principles to this case, nor in my view could he do so. However, he referred to R v Verdins [2007] VSCA 102; (2007) 16 VR 269 (Maxwell P, Buchanan and Vincent JJA) as authority that the principles in Tsiaras may be applicable

in any case where the offender is shown to have been suffering at the time of the offence (and/or to be suffering at the time of sentencing) from a mental disorder or abnormality or an impairment of mental function, whether or not the condition in question would properly be described as a (serious) mental illness [5].

22 I will so approach this appeal, although I note that there is no indication I could find of Verdins having previously been followed in this court.

23 I also understood counsel for the appellant to rely on a further principle added by the court in Verdins to the five principles in Tsiaras. That principle was

[w]here there is a serious risk of imprisonment having a significant adverse effect on the offender's mental health, this will be a factor tending to mitigate punishment [30].

24 Again, I will so approach this appeal, noting again that Verdins appears not previously to have been followed in this court.

25 It was put to me that both of the additional matters invoked by the appellant are relevant to this appeal.

26 It was common ground before me that it had been made clear to the learned magistrate that the appellant suffered at all material times from autism, and had, as put by the appellant's then counsel to the learned magistrate, a 'relatively low level of intellectual functioning' (ts 4).

27 In addition, that counsel stated to the learned magistrate that

he has a more difficult time in custody than most people. The reason for that is his obvious intellectual disability. It's also the issues associated with autism and it is also the attitude of the other prisoners, because as a mainstream prisoner, anyone with a disability is immediately made a target of unfortunate behaviour and also bullying behaviour (ts 3).

28 Counsel also said to the learned magistrate that the appellant had been sexually assaulted while in custody, which had been a traumatic experience from which he had not fully recovered (ts 3).

29 It was further common ground that the appellant's mental condition comprising those two elements ought to have had a mitigating effect on punishment in this case. The difference between the parties was whether or not the learned magistrate should have given it such an effect to any substantial extent.

30 I am of the view that the learned magistrate in fact concluded the appellant's mental condition should not have a mitigating effect on punishment in this case to any significant extent. In my view, this is indicated in the following passage from his sentencing remarks (ts 8):

In this court we bend the rules all the time to accommodate people with intellectual disability but the time comes where the rules can't be bent. They can't be bent on this occasion to allow Mr Knott to go free today. He has to get a prison sentence. He will be eligible for parole. Hopefully, all the things you are talking about can kick in when he gets released on parole.

31 I note again that previously counsel for the appellant had referred to the appellant's mental condition with the two elements described as well as the particular impact on the appellant of his time in custody.

32 Counsel for the appellant put to me that it was not sufficient for the learned magistrate to consider the appellant's mental condition simply in relation to whether or not to impose a sentence of imprisonment on the appellant. The learned magistrate was also required to consider whether or not that condition warranted a lesser term of imprisonment than might otherwise have been imposed. I did not understand counsel for the respondent to contend otherwise. In my view any other view would have been inconsistent with the authorities I have referred to above.

33 I further understood counsel for the appellant to contend that the learned magistrate had failed to consider the appellant's mental condition in the two respects indicated. I disagree. Although the matter is not altogether clear from his sentencing remarks, I consider that his Honour did so consider that condition, as indicated in the following exchange (ts 9):

HIS HONOUR: On that charge I think, Mr Knott, as I have indicated, has got to be sentenced to a prison sentence. The system has tried everything. The system - this intellectual disability court has tried everything to assist Mr Knott and it has been of great assistance to him, but as I indicated, this particular assault was a very bad assault.

KNOTT, MR: I know it is. I'm sorry.

HIS HONOUR: So on that charge you are sentenced to 18 months' imprisonment eligible for parole backdated to 7/8/09. Now, I'll go back and deal with those for which he was given a suspended imprisonment order. On them he's sentenced to six months' imprisonment concurrent. So if we get them in due course, those two.

34 I consider that his Honour thereby indicated he had considered the appellant's mental condition in the two respects indicated. That is, he considered that condition both in relation to whether or not to choose for the indecent assault the sentencing option of a sentence of imprisonment to be immediately served, and in relation to the total effective sentence, made up of the term of imprisonment for the indecent assault he determined upon and of the terms of imprisonment for the breaches of the violence restraining order being the suspended sentences he had activated.

35 He also indicated, in my view of that passage, that he would not give any significant mitigatory weight to the appellant's mental condition in either of the respects indicated. His Honour's conclusion to that effect is in my view more clearly indicated in the following exchange (ts 8):

HIS HONOUR: I can't otherwise then send him to prison for this offence. You only need to look at his record to see that - I've read all the reports over the time I have been involved with him. You only need to look at his record to see the offences. August 04, wilful exposure. August 04, indecent assault. March 06, wilful exposure. March 06, indecent act in public. Those offences weren't serious enough to warrant a prison sentence. As it keeps on going on, this one - there was a stalking too, I should add. Stalking in October 07. I don't know about the breaches of the violence restraining order that Mr Wheeler dealt with, but I presume they are pretty severe. Pretty serious for him to be imposing suspended imprisonment.

AMSDEN, MS: They were being on public transportation with one of the victims of one of the stalking offences. So, that is what that was. Well, I do simply reiterate that it is apparent things can be put in place for him. He's a high needs individual. It would be my submission that he is more likely to get those needs met as a condition of an intensive supervision order, rather than a condition of parole.

HIS HONOUR: Yes. Well, I know but I am not prepared to take a risk with Mr Knott. I am not prepared to release him today until he's done - well, not today. I think he has to get a prison sentence. I can have no confidence that if he's released today that he won't be back here shortly with a similar offence.

36 Counsel for the appellant put to me that his Honour erred in failing to give significant weight to the appellant's mental condition. That error lay in his Honour's failure to recognise the lesser role of general and special deterrence in the sentencing because of that condition.

37 However, I am not convinced his Honour did not recognise a lesser role for general deterrence.

38 At the same time, I also consider his Honour recognised, as he could properly recognise, a significant role for special deterrence in this case.

39 His Honour also recognised, as he could properly recognise, a significant role for protection of the public in this case.

40 Considerations of general deterrence will indeed be lesser where there is a causal connection between the mental condition and the offending, which will tend to reduce the criminality or culpability of the offending conduct, even though it does not legally excuse that conduct: see Tsiaras (400). In this case it may be accepted that there was such a causal connection, and that his Honour was aware of it. The presence of a causal connection is indicated by the contents of the psychological report dated 13 August 2008 prepared at the time of the sentencing of the appellant for the breaches of the violence restraining orders, which refers to his 'major mental condition' as an indicator with other matters of 'significant historical risk factors' of offending (5). It was common ground before me his Honour had, by reason of his apparent role in the Intellectual Disability Diversion Program of the Magistrates Court, knowledge of the appellant before the sentencing; his Honour also referred in his sentencing remarks to having 'read all the reports over the time I have been involved with him' (ts 8).

41 However, if an offender acts with knowledge of what he is doing and knowledge of the gravity of his actions, moderation of the consideration of general deterrence 'need not be great': F [41], quoting from Wright (51). There is support for a lack of knowledge of the latter kind in the psychological report of August 2008. I have noted that Mr Knott himself, after the learned magistrate described the indecent assault as 'a very bad assault', interjected 'I know it is. I'm sorry' (ts 9). However, this does not clearly indicate knowledge of either kind at the time of offending; and there is some indication to the contrary, as to the second type of knowledge at least, in the submission of his counsel to the learned magistrate when she said 'this man, in the past, has perhaps not fully appreciated how serious this type of behaviour is' (ts 5).

42 At the same time, his Honour, as I read his sentencing remarks, does not put any emphasis on considerations of general deterrence.

43 True it is the learned magistrate does emphasise the seriousness of the offending, as 'horrifying' and 'terrifying' for the victim (ts 6, 7). However, this is in the context of his Honour's concern that, despite all that had been done to address the appellant's offending in the past, he had committed the indecent assault (ts 6).

44 This concern, in my view, led his Honour to give emphasis rather to considerations of protection of the public and special deterrence, the former more clearly than the latter. This I consider is indicated in the exchange between His Honour and counsel for the appellant that I previously quoted (ts 8).

45 It is clear from F [38], quoting from Engert (71), that considerations of protection of the public and special deterrence may assume particular significance in the case of offending causally connected with a mental condition.

46 It also seems to me that his Honour could have taken from the appellant's criminal history, as I consider he did, that it showed a 'dangerous propensity' and a need for 'condign punishment to deter the offender', which Dragon v The State of Western Australia [2008] WASCA 252 [58] (Buss JA) quoting from Veen v The Queen (No 2) [1988] HCA 14; (1987) 164 CLR 465, 477 - 478 (Mason CJ, Brennan, Dawson and Toohey JJ) indicates is a 'legitimate' use of such a history.

47 True it is that it appears there was material before the learned magistrate to suggest that the need for special deterrence was reduced. This material was the interjection from the appellant previously quoted (ts 9), and the submission of his counsel to his Honour, as follows (ts 5):

Other than that, what I can indicate is that this man, in the past, has perhaps not fully appreciated how serious this type of behaviour is. He certainly does at this time.

48 However, it was not put to his Honour that specific deterrence was more difficult to achieve and not worth pursuing as such (compare Tsiaras (400), quoted in F [40]). In my view his Honour could, in view of the antecedent criminal history and the previous actions taken to address the appellant's offending despite which the indecent assault had taken place, take the position, as he appears to have done, that considerations of protection of the public and special deterrence called for a sentence of immediate imprisonment.

49 However, I also consider that his Honour, in determining the length of the prison term, was called upon to make an allowance for the effect of imprisonment on the appellant, including on his mental health, as had been described by his counsel to his Honour as I have indicated. It appeared to be common ground he did not make any such allowance; I consider that in any event, on the length of the sentence in this case, no such allowance was made. Such an allowance would have recognised that a lesser term than would otherwise be called for would be sufficient to achieve the purposes of special deterrence, and of protection of the public: see Tsiaras (400) and Verdins [30].

50 I consider that it has thus been shown his Honour failed to adequately take into account as a relevant consideration in the sentencing the appellant's mental impairment. I would uphold ground 1.

51 I have recently had occasion to review the principles applicable to consideration of a ground of this nature. I did not understand there to be any dispute as to the principles as I reviewed them in Sakkers v Thornton [2009] WASC 175 [50] - [52] (Simmonds J), referring to Furber v The Queen [2008] WASCA 233 among other authorities, as follows:

A convenient general statement of those principles is in R v Tait and Bartley (1979) 24 ALR 473, 476 (Fed Ct, Full Ct, Brennan, Deane and Gallop JJ) as follows:

An appellate court does not interfere with the sentence imposed merely because it is of the view that that sentence is insufficient or excessive. It interferes only if it be shown that the sentencing judge was in error in acting on a wrong principle or in misunderstanding or in wrongly assessing some salient feature of the evidence. The error may appear in what the sentencing judge said in the proceedings, or the sentence itself may be so excessive or inadequate as to manifest such error (see generally, Skinner v R [1913] HCA 32; (1913) 16 CLR 336-40 at 339; R v Withers (1925) 25 SR (NSW) 382 at 394; Whittaker v R [1928] HCA 28; (1928) 41 CLR 230 at 249; Griffiths v R (1977) 15 ALR 1-17 at 15).

See also House v The King [1936] HCA 40; (1936) 55 CLR 499, 505 (Dixon, Evatt and McTiernan JJ); and Cranssen v The King [1936] HCA 42; (1936) 55 CLR 509, 519-520 (Dixon, Evatt and McTiernan JJ).

In respect of the matter of a sentence 'so excessive or inadequate as to manifest such an error' (Tait 476), it is accepted that such a sentence is one that falls 'outside the range of a sound exercise of sentencing discretion': Furber [46] (Murray AJA); see also [1] (Buss JA) and [2] (Miller JA).

52 In assessing the matter, the court should have regard to the maximum penalty for the offence, the standard of sentencing customarily observed in relation to it, the place which the offence occupies in the scale of seriousness of offences of that type and the personal circumstances of the offender: see Chan v The Queen (1989) 38 A Crim R 337, 342 (Malcolm CJ).

53 In relation to the maximum penalty for the offence, counsel for the appellant pressed on me that the learned magistrate should be seen as having sentenced, after allowing for the personal circumstances of the offender, and in particular his plea of guilty, at the maximum penalty for the offence, being the maximum penalty of 2 years for a summary conviction. I was referred to Withnell v Walker [2005] WASCA 8 [13] (Miller J) as authority in support of this submission.

54 However, in my view Withnell should not be so read. Other authority, most notably Evans v Vanderheide [2001] WASCA 352 [19] (Miller J), referring to Johnson v Hayter [2001] WASCA 118 [10] (Miller J), in my view clearly establish that the sentence of imprisonment on a summary conviction falls to be assessed for my purposes against the maximum penalty of the offence even although that penalty is only available on a conviction on indictment. I have previously discussed this matter, in Sakkers [79] - [85].

55 In my view, Withnell [13] is concerned rather, as that paragraph indicates, with the starting point in a sentencing on a summary conviction.

56 Applying what I consider to be the correct approach, the sentence in this case was one that fell some distance short of the maximum.

57 As to the standard of sentencing customarily observed in relation to this offence and the personal circumstances of the offender, counsel for the appellant referred me to a number of authorities from Tasmania (1), South Australia (6), the Northern Territory (2) and the Australian Capital Territory (1) on the offences of indecent assault in those jurisdictions, as well as, from this state, Narkle v Hamilton [2008] WASCA 31 and SA v McKinnon [2009] WASC 7.

58 Both counsel appeared to accept that there was no apparent tariff for sexual offences, a proposition which the authorities support: see Riggall v The State of Western Australia [2008] WASCA 69; (2008) 37 WAR 211 [47] (Wheeler JA) and RJB v The State of Western Australia [2009] WASCA 49 [36] (Owen, Wheeler and Miller JJA).

59 However, counsel for the appellant submitted, the authorities he referred me to indicate that the sentences imposed for a summary conviction for indecent assault had not been more than 12 months imprisonment. Further, he submitted, where the touching took place outside the complainant's clothing and was relatively brief, the sentence that would ordinarily be imposed would be a non-custodial one.

60 I accept that Narkle offers strong support for the last submission. However, Narkle also illustrates, in my view, the necessity to take careful account of the circumstances of the offending and of the offender. Doing so in this case in my view indicates that a custodial sentence, to be immediately served, could reasonably have been seen to be appropriate.

61 In Narkle the Court of Appeal concluded that the transitional provisions had no application to the court's re-sentencing for the indecent assault. I particularly note the passage in the judgment of the court (Steytler P, McLure and Buss JJA) at [45] - [47]:

That brings us to the sentence that should now be imposed. Ordinarily, an indecent assault of the kind that occurred in this case would attract a non-custodial sentence. The touching that took place was outside the complainant's clothing and relatively brief. There was also a plea of guilty, even if it was somewhat belated (it was not entered until 27 July 2007, some 14 months after the appellant's first appearance). We have said that the prosecutor told the magistrate that it was unnecessary to impose a sentence of imprisonment notwithstanding the absence of any mitigation, apart from the plea.

There is no doubt that there was no other mitigation. The appellant is a 50-year-old man with an extensive criminal record, which encompasses a number of very serious sexual offences. There is no challenge to the primary judge's finding that the outlook in the pre-sentence report prepared in respect of the appellant was 'bleak'. His history suggests that his prospects of rehabilitation are negligible. He has shown no remorse. We agree with the primary judge that, given the appellant's background and his lack of remorse, personal deterrence and the protection of the community were the principal sentencing considerations in this case. Protection of the community is especially important in the case of an offender with a prior history such as that of the appellant. While he is not to be sentenced, a second time, for his prior offending, the fact that he has yet again offended in a sexual context shows a complete disregard for the law. He has also demonstrated an inability to respect the rights of others, especially women. He seems to have no understanding of, or any regard to, the consequences for his victims of his actions.

In these circumstances, notwithstanding that a non-custodial sentence would ordinarily have been imposed for an offence of this kind, a sentence of immediate imprisonment was necessary. In our opinion, a sentence of 9 months' imprisonment would, ignoring the time spent in custody, be appropriate.

62 In this case the plea of guilty appears not to have been 'belated', there were expressions of remorse from the appellant, and the learned magistrate appears not to have concluded that the prospects for rehabilitation of the appellant were 'bleak'. In addition, the appellant was about 23 years old at the time of the offending, where the offender in Narkle was 50 years old. There was also no indication in Narkle of the offender having any mental condition.

63 However, in this case the complainant was 17 years old with no indicated prior acquaintance with the appellant, where the complainant in Narkle was 46 years old and had known the offender for six months. Further, there were no indications in Narkle of the fear the assault caused the complainant in this case, in the context of an assault with what appears to be a greater element of pursuit. The learned magistrate himself stressed the element of pursuit in his assessment of the seriousness of the offending.

64 Of course, it is necessary to note the limited guidance to be derived from other authorities. In particular I consider that such guidance is minimal where the authorities are sentencings from other jurisdictions.

65 The only other Western Australian authority on the offence of indecent assault cited to me was SA where there was an appeal against a decision not to make a spent conviction order in respect of conviction for an offence under Code s 323. There was no appeal against the sentence in that case of a community based order.

66 I consider the offence in that case readily distinguishable in seriousness from the one in this case, although the offender, who was 25, had a mild intellectual disability and was enrolled in the Intellectual Disability Diversion Program of the Perth Magistrates Court, had points of strong similarity with the offender in this case. In SA [5] (Simmonds J) the offending is described as follows:

[T]he appellant had touched a young woman over her clothing from behind when she was bending over to look at some clothing on a rack in a shop. He had apologised to the victim immediately when he was confronted and he had co-operated with the police, making admissions in relation to the offence.

67 I consider on the guidance to be derived from Narkle a sentencing of imprisonment to be immediately served was within the range for an offence of the present kind in the circumstances.

68 At the same time, I consider a sentence of 18 months less 1 day (or indeed of 18 months) was outside that range.

69 Counsel for the appellant submitted to me that the learned magistrate's failure to refer to the appellant's plea of guilty should be taken to indicate that his Honour had not taken the plea into account. However, such failure does not necessarily so indicate: see Royer v The State of Western Australia [2009] WASCA 139 [59] - [60] (Owen JA). At the same time such failure taken with the severity of the sentence might be taken so to indicate: McDonald v White [2007] WASCA 213.

70 In this case I consider the length of the sentence of imprisonment to be immediately served was unduly severe: see the resentencing in Narkle.

71 Counsel for the respondent cited L v The State of Western Australia [2007] WASCA 186, where at [32] - [34] Miller JA considered a range of sentences for the offence under Code s 329(10) of indecent dealing with children. That range for sentences of imprisonment was 12 months - 3 years. However, that offence is different from that under s 323, not least in that the maximum penalty under s 329(10) is 10 years, while that under s 323 is 5 years. I consider not much guidance can be drawn from the range of sentences of imprisonment for the former offence.

72 Neither counsel was able to refer me to any other authority than Narkle or SA for sentences of imprisonment for the offence under Code s 323.

73 I consider that, after considering the maximum penalty for the offence under s 323, what I can glean as to the standard of sentencing customarily observed with respect to that offence, the place which the offending occupied in the scale of seriousness of offences of that type and the personal circumstances of the offender, ground 2 is made out.

74 Counsel for the respondent put it to me that should I so consider I should conclude that the proviso in Criminal Appeals Act 2004 (WA) (CA Act) s 14(2) was made out. In particular, as I understood his submission, I should note that his Honour had made his sentence and that for the activated suspended sentences concurrent.

75 However, I consider that the respondent has not made the case for the application of the proviso. I consider that on a resentencing a total effective sentence significantly less than 18 months would be arrived at, as I will indicate.

76 I consider that the sentence of imprisonment for the indecent assault offence must be quashed.

77 In the event that was my determination, counsel for the appellant submitted I should resentence the appellant, and I did not understand counsel for the respondent to object to that course if I considered the proviso in CA Act s 14(2) was not applicable.

78 Counsel for the appellant pressed strongly on me that I should impose a non-custodial term on the appellant, particularly in view of his mental condition and the fact he will shortly have served the term of imprisonment under the activated suspended sentences.

79 However, I consider that a sentence of imprisonment is appropriate for the indecent assault in this case. While not the most serious of its type, it involved a pursuit of a young complainant, who was caused considerable fear. The appellant had a criminal record involving offences not dissimilar to this one, and was on a suspended term of imprisonment when he committed it. I consider his mental condition, far from pointing significantly away from a term of imprisonment to be immediately served, points towards such a sentence, in the interest of personal deterrence and protection of the community. The appellant's plea of guilty, while relevant to determining whether or not a sentence of imprisonment is called for, does not in my view in all of the circumstances mean such a conclusion should not be arrived at.

80 Further, on consideration of all of these factors again, it would not be appropriate to suspend this term of imprisonment.

81 At the same time I consider the appellant's plea of guilty with the expressions of remorse, his age and the effect on him of imprisonment point towards a term of imprisonment that should be comparatively short.

82 Thus, I would impose a sentence of imprisonment for the indecent assault, to be immediately served, of 7 months.

83 I turn then to the combination of that sentence with the activated suspended sentences of imprisonment. In my view I must consider that matter because of the setting aside of the original sentence for the indecent assault.

84 In my view the sentence of imprisonment for the indecent assault should be cumulative on the activated suspended sentences, which on the magistrate's original sentencing were concurrent with one another, a matter I am not called on to revisit. The offending of the first type was distinct in time and involved a different kind of offending, involving physical contact, which was not involved in the other offending. An adequate reflection of the total criminality involved here calls for the combination of sentences I have described. See Royer [21] (Owen JA) and [153] (Buss JA), and authorities there cited. Nor do I consider that the resultant sentence would be crushing in the sense described in the authorities: Royer [36] (Owen JA) and [130] (Buss JA).

85 Finally, I did not understand counsel for the respondent to submit that it was not appropriate that the offender be eligible to be considered for parole on this sentence or that the sentence of imprisonment should not be backdated to 7 August 2009, the date the appellant was taken into custody on the charge. I so order in each case.

86 I have concluded the appellant's sentence for the indecent assault should be set aside, and in its place a sentence of 7 months of imprisonment to be immediately served, backdated to 7 August 2009 and on which the activated suspended sentences would be cumulative, substituted. On the total effective sentence of 13 months and 1 day the offender would be eligible for parole.