Court of Appeal (WA)|2009-02-17|Before: Miller JA, Lure JA, Buss JA

CJ -v- THE STATE OF WESTERN AUSTRALIA [2009] WASCA 42 (17 February 2009)

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

CITATION : CJ -v- THE STATE OF WESTERN AUSTRALIA [2009] WASCA 42

Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA

Criminal law - Sentence - Sexual offences against children - Female taking part in acts of sexual penetration with male child over the age of 13 years and under the age of 16 years (four counts) - Whether appellant exercised any position of trust - Equality of concern for male and female victims - Relevance of depression suffered by appellant - Extent to which depression was causative - Relevance of depression to sentencing generally - Whether circumstances of case required term of imprisonment to be served immediately or suspended term of imprisonment - Whether violence restraining order should have been imposed under s 63A Restraining Orders Act 1997 (WA)

Sentence of 18 months' imprisonment imposed on each count to be served concurrently and to be suspended for a period of 12 months

1 McLURE JA: The facts and reasons of the sentencing judge are set out in the judgment of Miller JA. These are my reasons for joining in the orders made by the court at the hearing of the appeal setting aside the sentences imposed by the sentencing judge and in lieu thereof imposing sentences of 18 months' imprisonment on each count suspended for 12 months.

2 This court can only intervene to set aside a sentence if the sentencing judge has made an express or implied material error of fact or law. Two of the appellant's grounds of appeal rely in substance on implied error, being that the type of sentence (ground 2), or alternatively the length of the sentence (ground 3), is manifestly excessive. It is unnecessary to determine those grounds because the sentencing judge made a number of express errors that enlivened this court's power to intervene.

3 First, the sentencing judge failed to determine a material question of fact, being whether the appellant's clinical depression was a cause of the appellant's offending. The condition does not have to be the sole or predominant cause; it is sufficient if it makes a material contribution. The appellant's counsel asserted in her plea in mitigation that the appellant's depression was a causative factor in her offending. Counsel for the State accepted that the appellant's depression had 'some connection' to the offending. Although the psychological evidence before the sentencing judge did not expressly address the causation question, an inference to the effect contended for by the parties was clearly open on that evidence.

4 In sentencing proceedings, it is only if an assertion made by counsel for the defendant in mitigation is controverted by the prosecution or if the judge is not prepared to act on the assertion that it is necessary for the defendant to call evidence on the issue: R v Olbrich [1999] HCA 54; (1999) 199 CLR 270 [25]. The judge is required to give notice to the defendant if he or she is not prepared to act on the uncontroverted assertion of the defendant: Nguyen v The State of Western Australia [2009] WASCA 8 [20]. The notice requirement is to enable the defendant to adduce evidence on the fact in issue prior to sentencing. In the absence of a defence assertion being controverted by the prosecution and notice from the judge, the court is required to act on the correctness of the assertion: Hutchins v The State of Western Australia [2006] WASCA 258 [25]. My preliminary view is that if the sentencing judge in this case was not prepared to accept the common position of the parties, fairness required him to advise the appellant's counsel of his position to enable direct evidence to be adduced on the issue of causation. However, it is unnecessary to determine that question because the judge failed to make a finding on causation. He went no further than to state, 'I take account of your depression'. He did not make any findings on matters that materially affected the weight to be given to her condition: see Thompson v The Queen [2005] WASCA 223; (2005) 157 A Crim R 385; F v The State of Western Australia [2008] WASCA 100 [37] - [41]. That error enlivens this court's jurisdiction to intervene. In my opinion, the State was correct to concede below that the appellant suffered from clinical depression at the time of the offending and that there was a causal connection between the two.

5 Secondly, as correctly conceded by the State on appeal, the sentencing judge erred in taking into account the victim impact statement of the complainant's mother.

6 Thirdly, in sentencing the appellant the sentencing judge took into account the need for personal deterrence. However, it was common cause and conceded by the State in the appeal that personal deterrence was not a relevant sentencing consideration in the circumstances of this case as the appellant was at low risk of re-offending.

7 Fourthly, the sentencing judge concluded that the appellant 'was in a position of trust in the sense that the complainant was with you for the purpose of being with your son'. This echoed a submission from the prosecutor that there was a relationship of trust between the appellant and the complainant.

8 The existence of a position or relationship of trust between a sexual offender and his or her victim is an aggravating factor. Reliance is often placed on the factors identified by Murray J in Dempsey v The Queen (Unreported, WASCA, Library No 960059, 9 February 1996). One such factor is:

Whether the offender was in a position of trust of authority with respect to the victim, thus better enabling the commission of the offence (6).

9 In the context of sexual offences, a position or relationship of trust is one where the offender has authority, power or influence over the victim. There is no evidence in this case that the appellant was in a position of trust, in the restricted sense to which I have referred, such as to better enable the commission of the offence.

10 These errors enlivened this court's power to set aside the sentences imposed by the sentencing judge. What follows are my reasons for imposing a sentence of 18 months' imprisonment on each count suspended for 12 months.

11 The legal principles governing the sentencing of offenders apply to all members of the community regardless of, inter alia, race, religion or gender. However, the application of the same sentencing principles inevitably produces a wide variety of sentences for the same offence because of differences in the seriousness of the circumstances of the offending or the circumstances of the offender. Moreover, judges are not permitted to sentence on the basis of racial, religious, gender or other forms of stereotyping. However, the fact that a person's actions and motivation conform to what might be regarded as stereotypical behaviour, is not a reason for ignoring the established facts.

12 I turn now to the sentencing principles relating to offences against s 321(2) of the Criminal Code (WA) (the Code) which makes it an offence for a person to sexually penetrate a child of or over the age of 13 years and under the age of 16 years.

13 Imprisonment, whether or not suspended, is a sentence of last resort: s 6(4) of the Sentencing Act 1995 (WA) (the Sentencing Act). A term of imprisonment to be served immediately should not be imposed unless the court is satisfied that a suspended sentence is not appropriate: s 39(3) of the Sentencing Act. The same considerations relevant to the imposition of a term of imprisonment must be revisited in determining whether to suspend the term: Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321.

14 This court in Simon v The State of Western Australia [2009] WASCA 10, undertook a detailed review of the sentences customarily imposed for a breach of s 321(2) of the Code. The cases reveal that generally a sentence of immediate imprisonment is imposed for such an offence. However, even if a term of immediate imprisonment is generally the appropriate remedy, a sentencing judge is not relieved of his or her obligation to assess whether, having regard to all relevant sentencing factors in the case under consideration, is appropriate to suspend the term of imprisonment: Collins v The State of Western Australia [2007] WASCA 108 [21].

15 At the time of the offending, the appellant was a primary schoolteacher and had taught the complainant some years earlier. If the appellant's occupation or her prior contact with the complainant in her capacity as a teacher was relevant to the circumstances of the offences, she would have been charged with having committed the offences whilst the complainant was under her care, supervision or authority, which is a circumstance of aggravation. The appellant was neither charged nor convicted on that basis. The appellant's contact with the complainant

resulted primarily from the complainant's friendship with the appellant's son.

16 In this case the offences were not initiated by the appellant. The complainant was in control of when and if sexual contact occurred. He acknowledged to police in the video record of interview that he was 'just in it for the sex pretty much'. Notwithstanding the appellant's age, she was vulnerable to the sexual interest shown by the complainant. That vulnerability stemmed from a dysfunctional background, low self-esteem, a history of passivity and acquiescence, a life of social isolation and lack of any significant emotional or physical intimacy with an adult over an extended period. Into that mix is the appellant's clinical depression.

17 As a result of the offences, the appellant lost her job as a teacher and is now estranged from her son who she raised alone as a single mother. After ceasing work as a teacher she obtained employment to support herself financially. She worked as a checkout operator at a supermarket where she was mocked and ridiculed by associates of the complainant. The appellant has engaged in intensive counselling with the object of identifying and addressing the underlying causes of her offending behaviour.

18 I was satisfied that in this unusual combination of circumstances, a term of immediate imprisonment was not the only appropriate sentencing option and that the seriousness of the offence was appropriately reflected in a suspended term of imprisonment. I agree with Miller JA that the sentencing judge had no jurisdiction to make a violence restraining order pursuant to s 63A of the Restraining Orders Act 1997 (WA) and that it was appropriate to quash that order.

19 BUSS JA: For the reasons expressed by McLure JA, I joined in the orders made by the court on 19 December 2008.

20 MILLER JA: At the hearing of this appeal, the court allowed the appeal, quashed the sentences of imprisonment imposed by the sentencing judge and substituted in lieu sentences of 18 months' imprisonment on each count on the indictment, to be served concurrently, and to be suspended for a period of 12 months. In addition, all ancillary orders were quashed. The court undertook to give reasons for its decision and the following are my reasons.

21 The appellant was indicted on four counts of sexual penetration of a child contrary to the provisions of s 321(2) of the Criminal Code (WA). Section 321(1) and (2) of the Code read:

Child of or over 13 and under 16, sexual offences against

(1) In this section, child means a child of or over the age of 13 years and under the age of 16 years.

(2) A person who sexually penetrates a child is guilty of a crime and is liable to the punishment in subsection (7).

Section 321(7)(a) of the Criminal Code provides, relevantly, that the penalty for commission of the offence is 14 years' imprisonment.

22 Each count on the indictment faced by the appellant alleged the offence of sexual penetration with the same person. The only difference between the counts related to the dates upon which the offences were alleged to have occurred. They were respectively July 2007, August 2007, between 1 August 2007 and 31 October 2007 and between 1 January 2008 and 29 February 2008. Count 1 on the indictment, which with the exception of the date was identical to the other counts, was in the following terms:

On a date unknown in the month of July 2007 at ... [the appellant] sexually penetrated [the complainant], a child of or over the age of 13 years and under the age of 16 years, by penetrating her vagina with his penis.

23 The appellant pleaded guilty to each count on the indictment. She did so on the fast-track system. She repeated her pleas of guilty when brought before the District Court on 22 September 2008.

24 After hearing submissions on sentence, the sentencing judge adjourned the matter to 2 October 2008, when he passed sentence upon the appellant. She was sentenced to 18 months' imprisonment on each of counts 1, 3 and 4 on the indictment and to 9 months' imprisonment on count 2. The sentences of 18 months' imprisonment were each ordered to be served concurrently and that of 9 months' imprisonment ordered to be served cumulatively on the sentence imposed on count 1, leading to an aggregate effective sentence of 27 months' imprisonment. The appellant was made eligible for parole and the sentence was backdated to 22 September 2008. In addition, the sentencing judge purported to make a violence restraining order pursuant to s 63A of the Restraining Orders Act 1997 (WA), restraining the appellant from communicating or attempting to communicate by any means whatsoever, including SMS or text messages, and any other electronic means, with the person protected by the order. The appellant was also restrained from entering any premises where the protected person lived or worked. The sentencing judge did not specify the duration of the restraining order, but the order provides in its form that its duration is for life.

25 The facts presented to the sentencing judge revealed that the complainant (born 11 August 1991) was, at the time of sentencing, 15 years of age and a year 10 student at a school in the country. The appellant was 35 years of age and had until recently been a teacher in the primary school section of the school. The complainant and the appellant were known to each other through the school and through outside activities of a church. The complainant was a particular friend of the son of the appellant.

26 The offences contained within counts 1 and 2 on the indictment occurred when the complainant was 14 years of age and those contained within counts 3 and 4 on the indictment when he was 15 years of age. In more precise terms, the offence contained in count 1 occurred when the complainant was only a month short of the age of 15 years. The offence contained within count 2 occurred at or about the time the complainant was 15 years of age. The offence contained within count 3 occurred after the complainant had turned 15 years of age and that contained in count 4 when the complainant was about 15 1/2 years of age.

27 The circumstances of the offences were as follows.

28 This offence occurred on the last weekend of the July school holidays in 2007. The complainant went with the appellant and her son to stay at a caravan park. The events which constitute this count began on the final night of the stay. The appellant and the complainant were sleeping next to each other, fully clothed and in individual sleeping bags, but on the same bed within the caravan. During the early hours of the morning, the complainant woke up and felt the appellant lying close to him. The complainant turned towards the appellant and kissed her. There was kissing and cuddling which followed. This incident is not the subject of a charge, but what occurred later on the day is. During the course of the afternoon of the same day, the appellant returned to a country town with the complainant and her son. During the course of the afternoon, each of the complainant, the appellant and the appellant's son were resting at the appellant's house when the complainant entered the appellant's bedroom. The complainant and the appellant removed their clothing and the complainant lay on top of the appellant and had sexual intercourse with her.

29 This offence occurred approximately two weeks after the first offence. The complainant visited the appellant and her son at their home in a country town and stayed overnight. During the course of the night, whilst the appellant's son was asleep in his bedroom, the complainant walked into the appellant's bedroom. Again, both the complainant and the appellant removed their clothing and the complainant got into bed with the appellant. He lay on top of the appellant and sexual intercourse occurred.

30 Approximately one week after the complainant's 15th birthday (August 2007), the complainant visited the appellant and her son at a new home which they occupied in the same country town. During the course of the night, whilst the appellant's son was asleep in his bedroom, the complainant walked into the appellant's bedroom. Both the complainant and the appellant removed their clothing and the complainant got into bed with the appellant. He again lay on top of her and sexual intercourse occurred.

31 Between January and February 2008, the complainant again visited the home of the appellant. He came to stay overnight with the appellant's son. Another young male person was also there. Whilst the appellant's son and this male person were asleep, the complainant went to the appellant's bedroom and sat on the bed next to her. After a short conversation, the complainant lay on top of the appellant and sexual intercourse occurred.

32 On 6 May 2008, detectives investigating the matter conducted a video record of interview with the appellant. She made full admissions as to her sexual relationship with the complainant and she was charged with the offences the subject of the indictment.

33 There was also a video record of interview between investigating detectives and the complainant. This occurred on 16 April 2008. In the course of that interview, the complainant told detectives that the appellant was a primary school teacher at his school. At first, he said that she had never been his teacher, but later he said that she had been his teacher in year 7. She had been invited to the complainant's home by his parents for dinner in the year 2006. Later, when the complainant went to a different school, the appellant was also a teacher at that school, but she was not his teacher.

34 The complainant said that he knew the appellant's son and had known him since 2005. He saw him regularly and stayed over at his home from time to time.

35 The complainant detailed the events which led to the four incidents of sexual intercourse with the appellant. He said that he had not had sex before the first occasion on which he had sexual intercourse with the appellant. He did not ejaculate during the course of the initial act of intercourse. He said, however, that he had ejaculated on other occasions.

36 The complainant did not exhibit during the record of interview any particular concern about what had happened. The following series of questions and answers throw some light upon the circumstances in which the offences occurred:

Q. Okay. There must have been something in between that first time and then when you've stayed over, for you to think 'It's okay to go into her room tonight.'

A. Yeah. It was just - - um - - me going back for more.

Q. Yeah? Did she give any indication that that was going to be okay? You know what I mean?

A. Yeah. She said that we were brought together, and it was - - it was okay for us to be together.

Q. Can you remember saying anything to her about how you were feeling, or anything?

A. I just went with it.

Q. You just went with it?

A. Yes.

Q. How did you feel about the whole situation?

A. Pretty confused.

Q. Mm. Okay. What made you go with it? There are no wrong or right answers here. Okay?

A. Yeah. Um - - just in it for the sex, pretty much.

38 The complainant explained that, after he began a relationship with a girl, he 'tried to end it', but when he and the girl broke up, he 'just went back'. He said that the appellant had been upset when he started to see the girl in question and she wrote a letter to him, saying that she was upset about the relationship he had formed. He burnt that letter. Later, he told another girl with whom he began a relationship about what had happened with the appellant. This girl attended the same school as the complainant and it appears that she spoke to the school chaplain, who, in turn, informed the complainant's parents.

Sentencing submissions on behalf of the appellant

39 Counsel for the appellant accepted the facts, but questioned the tender of victim impact statements by the prosecution. One of those victim impact statements was a victim impact statement of the complainant's mother and it was about this that counsel for the appellant expressed particular concern.

40 The concern was rightly expressed. Section 24(1) of the Sentencing Act 1995 (WA) provides that a victim, or a person who may do so under s 24(2), may give a victim impact statement to a court to assist the court in determining the proper sentence for the offender. Section 24(2) provides that, if because of age, disability or any other reason, a victim is personally incapable of giving a victim impact statement, another person may give it on the victim's behalf if the court is satisfied that it is appropriate for that other person to do so.

41 A victim is defined in s 13 of the Sentencing Act 1995 to mean, relevantly, a person who has suffered injury, loss or damage as a direct result of an offence, or where the offence results in a death any member of the immediate family of the deceased.

42 In the present case, there is nothing to suggest that, because of age or any other reason, the complainant was incapable of giving a victim impact statement. In fact, he did give a victim impact statement. Counsel for the appellant was right to question the mother's victim impact statement. She should, in fact, have objected to it. The sentencing judge was in error in later referring to it.

43 Counsel for the appellant placed reliance upon the fact that the complainant had initiated the sexual conduct 'at every step' and contended that there was no evidence in any of the material (including the video record of interview of the complainant) that there was any kind of 'grooming conduct' from the appellant. Counsel put it that the gravamen of the offence was the appellant's acquiescence in the complainant's conduct and her continuing acquiescence. Reliance was placed upon psychological reports which had been put before the court and also on character references for the appellant. It was submitted that the appellant presented a unique combination of emotional vulnerability, illness by way of depression, and isolated personal circumstances, all of which created an extraordinary situation which justified a suspended term of imprisonment.

44 The prosecutor accepted that there was clear evidence of the appellant's depression, saying:

[I]t is clear that there is depression suffered by this offender and the report seems to make clear, and the state doesn't take issue with it, that [the depression] has some causal connection to this offending, so that provides mitigation as well ...

45 The first and the more significant psychological report is that of Nigel Cameron, Principal Clinical and Forensic Psychologist at the Department of Corrective Services.

46 Mr Cameron reviewed in detail the appellant's family background, the circumstances of the offending conduct, rehabilitation issues, risk issues and the result of psychometric testing. He found that the appellant had recollections of some childhood sexual abuse, but, more importantly, had in year 12 at school formed her first relationship with a boy in year 11, by whom she fell pregnant some two weeks before her TEE. Thereafter, she saw the father of the son born to her around three to four times a year, largely in secret, to engage in sex. She formed the view that she was still in a relationship with this youth and chose to wait until he returned from his university medical studies to reunite with her and their son and bring the relationship into the open. This outlook lasted for many years until 2001, when she was confronted with the harsh reality that he was with somebody else. The appellant had thought that he would return to her and that they would get married and be a family. Thereafter, she had no other sexual or romantic partners. She lived a largely isolated life, raising her young son in a country town whilst living with her parents.

47 The appellant began part-time TAFE studies in 1991, started teaching studies in 1998 and worked as a teacher thereafter. She was described by Mr Cameron as a 'lonely and isolated woman' who formed few friendships and was dependent in relationships with others. One such relationship was with the mother of the complainant. The complainant's mother introduced her to Christianity and she became a Born Again Christian, forming a family-like bond with the complainant's mother. She immersed herself completely in the role of parent and then teacher.

48 Psychometric testing revealed that the appellant suffered from clinical depression. Mr Cameron expressed the view that it was difficult to conclude what the appellant's state was at the time of the commission of the offences, but he 'suspected' that periods of her life had been marked by depression and anxiety.

49 Mr Cameron observed that the appellant asserted that she had not encouraged any sexual behaviour with the complainant, but that the complainant's initial touch of her hand was 'overwhelming' and had sparked an unacknowledged intense desire for intimacy and affection. She acknowledged that, on several occasions, she was uneasy about the sexual relationship that developed.

50 Mr Cameron concluded that a blurring of boundaries resulted in the sexual behaviour that occurred. He found that the appellant had 'idealised the view of the relationship, believing that the boy was to be her long-term partner'. She had 'fanciful ideas of waiting until he matured [to] form a family'. Mr Cameron said:

Indeed, whilst the driver's [sic] for many sexual offences may arguably be more primarily sexual/physical, the driver for [the appellant's] offending were [sic was] more emotional/intimacy levels. Her distorted thinking was such (and in this regard it must be acknowledged that her history would suggest she has always been extremely naive in romantic/sexual relationships) that [the appellant] appeared to believe that the teen would share such outlooks and drivers for his behaviour.

...

I would suggest that it was the above personality factors and events, rather than any mental health disorder that resulted in her offending.

51 Mr Cameron noted that the appellant was being treated by a Perth-based clinical psychologist, Ms Genevieve Milnes, and that her treatment had focussed on strengthening her capacity to cope with the situation in which she was placed. He felt that counselling which focussed on her emotional needs was clearly required.

52 Mr Cameron considered that the appellant presented as a low risk of engaging in future relationships with any teenage boys. He thought that further forensically focussed intervention was required and pointed out that, although she 'may' receive psychological counselling in prison, her needs might be more realistically addressed by counselling on a community based order of some type or whilst on parole.

53 The psychological report of Ms Milnes commences with the statement by Ms Milnes that she considers her role to be that of an advocate of the appellant. Her report might, therefore, be seen as less dispassionate than that of Mr Cameron.

54 Ms Milnes reported that the appellant had been treated by a general practitioner, Dr Peter Rae, who had identified her main problem as depression, with predisposing factors of a family history and a series of life events.

55 Ms Milnes reviewed the appellant's life history and it is unnecessary to repeat that review. Much of it is covered by what I have already said about the report of Mr Cameron. Ms Milnes concluded that, at the time of the offences and as a result of life's experiences, the appellant was severely depressed, although she tried to mask her depression. She considered that the appellant needed training in life skills to relate to others to gain positively from her friendships. She needed intensive psychological treatment to remedy a number of issues. She was at a very low risk of reoffending as she gained insight and understanding of her own responses. Ms Milnes concluded:

[The appellant] far from being a predator, is a victim of her own life circumstances. This situation is very unique and quite unlike anything I have seen regarding cases of child-abuse.

56 The report of Dr Rae dated 25 July 2008, indicates that Dr Rae has been treating the appellant for depression since 16 April 2008. He had previously seen her on 8 May 2006 and 30 July 2007, which was the period 'likely to have relevance to her current situation'. He said:

I am not able to state from observation or certain knowledge that she was depressed during the time under question but can unequivocally state that it is very aberrant behaviour for her. She had always been a caring and responsible person who had worked hard to get to the teaching position she held and was always thought well of for the way she cared for her son.

Of probable importance is that during the consultation on 8/5/06 she mentioned that she had not been sleeping well, had a lot on her plate at school, and was significantly affected by a friend with depression.

It is possible that these were symptoms of incipient depression that developed further subsequent to the consultation of 8/5/06 and may have a bearing on events that followed.

57 Dr Rae's conclusion about the appellant's depression at the time of the commission of the offences is somewhat tentative and this makes Ms Milnes' conclusion about the appellant's state of depression at the time of the offences questionable. In the end, it is difficult to conclude that the appellant's depression was causative of her offending. Nevertheless, it was clearly relevant to the sentencing process: Thompson v The Queen [2005] WASCA 223; (2005) 157 A Crim R 385 per Steytler P at [52] - [55]. I shall return to this aspect when dealing with the grounds of appeal.

58 The sentencing judge began by recounting the facts of the case. He then turned to the victim impact statements of the complainant and his mother which he said outlined the effects of the offending. The sentencing judge quoted a portion of each statement.

59 The complainant said in his statement that he was confused about what had occurred and unable to concentrate at school. He complained of flashbacks of the events that had occurred, but said that he basically now feels a lot happier in himself.

60 The complainant's mother was reported as having said that 'My heart breaks that he is struggling with such difficult issues at such a young age'.

61 As I have previously pointed out, it was inappropriate for the sentencing judge to have taken account of this latter victim impact statement. It was a clear error in the sentencing process for him to have done so.

62 The sentencing judge turned to the personal circumstances and antecedents of the appellant. He noted that she was 35 years of age, single with a son aged 18 years. He made reference to her family background, the details of which I have already recounted from the contents of Mr Cameron's report.

63 The sentencing judge found that the offending conduct of the appellant had impacted upon her relationship with her son and her family. Her relationship with her mother was extremely strained, but her father was apparently supportive of her. The sentencing judge noted that the appellant had lost her vocation as a teacher. That was a vocation which she had very much enjoyed and it was an important aspect of her life.

64 The sentencing judge noted also that the appellant had no prior convictions for any offences and had references in which persons testified to her good behaviour. Particular mention was made of a reference from the deputy principal of the school at which the appellant was employed from January 2007 until August 2008. The deputy principal said that the appellant had demonstrated the qualities of a good teacher who cared for the growth and progress of her students academically, morally and socially. Other references were referred to in detail.

65 The reports of Mr Cameron, Ms Milnes and Dr Rae were all referred to and the sentencing judge said that he took account of the appellant's depression and the fact that her behaviour was aberrant. His Honour also took account of the appellant's co-operation with police, her full and frank admissions and her pleas of guilty on the fast-track system.

66 The sentencing judge described the case as 'unusual in the sense that this type of offending is not often before the court'. It appears his Honour thought there was a distinction between female offending of the type in question and male offending. If this is what he thought, he was clearly in error: Director of Public Prosecutions v Ellis [2005] VSCA 105; (2005) 11 VR 287 per Callaway JA at [8].

67 The sentencing judge felt the dominant sentencing considerations were punishment and general and personal deterrence. He considered that there was a significant age difference between the appellant and the complainant and that the appellant was in a position of trust, in the sense that the complainant was with her for the purpose of 'being with her son'. He said, 'You were the adult and the person in the superior position'.

68 In the end, the sentencing judge took the view that it was necessary to punish the appellant personally and to deter both the appellant and others. He appreciated that the ultimate decision involved a choice between imposing a term of imprisonment to be served immediately and one of suspended imprisonment. He considered the offence to be too serious to allow for suspension and sentenced the appellant to immediate imprisonment.

69 This ground contends that the sentencing judge failed to take into account, or did not sufficiently take into account, the appellant's depressive illness being a causative factor in the commission of the offences.

70 I have already pointed out that no medical practitioner testified to the appellant's state of depression as being causative of the commission of the offences. At most, Dr Rae expressed the tentative opinion that the appellant's depression may have had a bearing on the commission of the offences. Mr Cameron found it difficult to state what the extent of the appellant's depression was at the time of the commission of the offences and Ms Milnes erroneously concluded that, from Dr Rae's report, it could be said that the appellant would have been depressed at the time of the commission of the offences.

71 It is true that the prosecution conceded that there was a causal connection between the appellant's depression and the offences, but the concession does not appear to be borne out by the evidence. The sentencing judge took account of the appellant's depression, but did not reach a firm conclusion about the extent to which it was causative of the commission of the offences.

72 I am not satisfied that there is any evidence that there was a causal connection between the appellant's depressive state and the commission of the offences. I am, however, satisfied that the appellant was suffering from depression at the time she was sentenced and had been so suffering at different periods during her lifetime. As a consequence, her state of depression had a considerable bearing upon the extent to which the sentence needed to reflect personal deterrence. It also bore, to some extent, on the question of general deterrence: Thompson per Steytler P at [54] - [55].

74 This ground contends that the sentencing judge erred in finding that the offences committed by the appellant were too serious to allow for suspension of sentence.

75 The question is whether the seriousness of the offence was such that only a sentence of immediate imprisonment was appropriate, or whether, in the circumstances of the particular case, a sentence of suspended imprisonment was open. If it was open, the sentencing judge ought to have imposed it: Sentencing Act 1995 (WA) s 6(4), s 39(3). A sentence of immediate imprisonment cannot be imposed unless the court is satisfied that it is not appropriate to use the option of suspended imprisonment (conditional or otherwise) or other lesser sentence: Skipworth v The State of Western Australia [2008] WASCA 64 (McLure JA) [8].

76 The ground of appeal contends that the sentencing judge erred in refusing to suspend the sentences for two reasons. The first is that he placed too much emphasis on the need for general deterrence and the second is that he gave insufficient weight in the sentencing process to the circumstances in which the offences occurred and the personal circumstances of the appellant.

77 The personal circumstances of the appellant which are relied upon are numerous. They include: her depressive condition which is said to have caused or contributed to the offences; the fact that none of the offences were committed for sexual gratification of the appellant; the fact that there was no grooming of the complainant; the absence of premeditation; the fact that none of the offences were initiated by the appellant; the absence of any threat, coercion, violence or emotional pressure being exerted by the appellant; the appellant's low risk of reoffending; the appellant's co-operation with police and her remorse; the appellant's pleas of guilty at the earliest opportunity; the appellant's involvement in intensive counselling to come to grips with and address her offending behaviour; the absence of any prior record; the appellant's loss of her position as a teacher; and the appellant's shame and humiliation.

78 This was a case in which serious sexual offences were committed by the appellant against a person between the ages of 13 and 16 years. It matters not that the complainant consented to what occurred, but it is relevant that the complainant appears to have been the initiator of each act of sexual conduct.

79 Having said this, it is still necessary to appreciate that there must be equality before the law, including equality of concern for male and female victims and equality in the sentencing of male and female offenders: Ellis per Callaway JA at [8].

80 The need to treat male and female offenders equally is not limited to sexual offences. There must not, however, be an artificial equation of men and women in relation to criminality. This was made clear in Ellis by Callaway JA at [10] - [11], where his Honour said:

The need to treat male and female offenders equally is not limited to sexual offences. In R v Harkness and Ors [[2001] VSCA 87] two young women, Densley and Rye, assisted their male co-offenders to traffic in heroin. They were given very lenient sentences. The principle of parity almost required appellate intervention in favour of the co-offenders [footnote omitted]. I said, with the concurrence of Winneke ACJ [at [58]]:

'The approach of the courts to sentencing female offenders has changed over the years in reflection of the community's views. The principle at stake is equality. The law cannot, and should not, be blind to human nature or to the vulnerability of persons in the position of Densley and Rye and there are other differences between male and female offenders that can legitimately affect the sentencing discretion, but it is no longer acceptable that an offender be given a different sentence solely because of his or her sex.' (Emphasis in original.)

As that passage shows, differences between offenders that are not solely because of their sex may, and where they are relevant should, be taken into account. The law does not require an artificial transposition, treating men as if they were women or women as if they were men. It is not fallacious to detect error in the present sentence because it is completely different from the sentence that would have been imposed on a male offender. It would be an error simply to substitute, after allowance for double jeopardy, the sentence that would have been imposed on a male schoolteacher who had taken part in six acts of sexual penetration with a female student. We must not replace one set of unjust stereotypes by another that is no less unjust. [10] - [11]

81 In Ellis, the respondent had pleaded guilty in the County Court to six counts of taking part in an act of sexual penetration with a child under the age of 16 years, contrary to s 45(1) of the Crimes Act 1958 (Vic). Each count was punishable by imprisonment for 15 years. The indictment alleged, and the sentencing judge found that, in relation to each count, the victim was under the care, supervision or authority of the respondent. That circumstance of aggravation is not a factor in the present case.

82 In Ellis, the respondent was a 36-year-old married woman, who was a school teacher. She lived with her husband and three children. She was a physical education/health teacher at the secondary school attended by the complainant. The complainant was a 15-year-old year 10 student who knew the respondent as his teacher. The respondent took the complainant to her house for acts of intercourse and other sexual penetration. There were six counts and they occurred over a period of just over one month. Contact between the complainant and the respondent continued for some time after the respondent's apprehension. The respondent initially denied all allegations when they were put to her by investigating police, but thereafter made full and frank admissions.

83 Callaway JA (with whom Batt and Buchanan JJA agreed) concluded that a wholly suspended term of imprisonment which had been imposed by the sentencing judge was manifestly inadequate. An immediate custodial sentence should have been imposed below. His Honour did, however, say at [9] that this did not mean that a wholly suspended sentence for an offence like this would never be appropriate. Callaway JA highlighted as possibly appropriate for a suspended sentence a case in which the offending had been confined to one count alone which might 'then have been regarded as a foolish lapse that was not repeated'.

84 In Ellis, the appeal court concluded that (as is provided for in Victoria) a partly suspended sentence of imprisonment should be imposed by the court in resentencing the respondent. It was ordered that the respondent should serve 6 months' imprisonment and that the balance of her sentence should be suspended for a period of 3 years. Callaway JA said, at [27], that unless that was done 'the principle of equality will not be observed, nor would the court sufficiently condemn the respondent's conduct'.

85 There is no provision in Western Australia for portion of a sentence of imprisonment to be served and portion of it to be suspended. The whole of the term must be suspended: Sentencing Act 1995 s 76(1). Different considerations may therefore be said to apply to the applicability of suspended terms of imprisonment in this State.

86 It is clear in this State that a sentence of suspended imprisonment is always open in the particular circumstances of any case, including cases involving sexual penetration. The court said so in VIM v The State of Western Australia [2005] WASCA 233; (2005) 31 WAR 1 in the following passage:

Nothing in what we say should be taken to mean a sentencing Judge may not impose a non-custodial penalty or one outside an apparent range if the circumstances of the individual case clearly demand such a disposition in accordance with proper legal principle. [287]

87 In R v Liddington (1997) 18 WAR 394, Steytler P, at 406, suggested a list of relevant factors which might be considered in determining this issue. Liddington was a case in which the respondent had pleaded guilty to three counts of possession of child pornography and various other offences relating to indecent or obscene articles.

88 In the present case, I consider the sentencing judge to have erroneously concluded that the circumstances of the offending were so serious that only a sentence of immediate imprisonment could be imposed, to the exclusion of a sentence of suspended imprisonment.

89 There were a number of matters personal to the appellant that were important factors in the sentencing process. She was undoubtedly a very damaged person. Her history of troubled background, depression, naivety in relationships and desire for intimacy with the complainant is well documented by Mr Cameron in his report. She was suffering from depression at the time at which she was sentenced, she presented at a low risk of future offending, she required psychological counselling and she had made active efforts on her own behalf to obtain and continue with that counselling.

90 Whilst it could not be said that there was a causal connection between the appellant's depressive state and the commission of the offences, her depressive state was relevant to the sentencing process. This was recognised by the sentencing judge, but his Honour erroneously placed undue emphasis on the need for personal deterrence. There was no justification for treating the case as one which required personal deterrence (see Thompson (supra) per Steytler P at [54]).

91 Other factors that suggest that a suspended sentence of imprisonment was open in the present case include the following:

(i) The appellant's offending cannot be categorised as a breach of trust on her part. She was not the complainant's direct teacher and she did not occupy any position of trust on the occasions when the complainant was staying at her home. The purpose of his stay was to be with her son and, although she was the parental figure present in the house, no trust was reposed in her in the sense that she had care or supervision of the complainant or authority over him. If a complainant is under the care, supervision or authority of an offender, then a circumstance of aggravation is present and the penalty is substantially greater: s 321(7)(c) Criminal Code; JAF v The State of Western Australia [2008] WASCA 231 per McLure JA at [25]. That circumstance of aggravation was not alleged against the appellant in the present case.

(ii) Serious though the offences were, in each instance the offence was initiated by the complainant rather than the appellant. That the appellant fully participated in the events that followed is without question, but there was no sense of predatory behaviour on the appellant's part. Where offenders (like the appellant) are not predators and where their behaviour is plainly out of character, whilst general deterrence remains a factor of importance, personal deterrence, while remaining a factor to be considered, is of less weight: JAF per Wheeler JA at [12].

(ii) The appellant co-operated with investigating police, and expressed remorse. She endured shame and humiliation, lost her position as a teacher and suffered estrangement within her family in consequence of her offending behaviour. She had no prior criminal record and pleaded guilty to all offences at the earliest opportunity.

92 There have been a number of cases of sexual offending against the provisions of s 321(2) of the Criminal Code. Some, but not all, of the cases are reviewed by Wheeler JA in JAF at [15] - [16]. All involved consensual sex between the offender and the victim, and in a number of cases the age difference between the parties was not great. In general, sentences of imprisonment to be served immediately have been imposed. The sentences (where appropriate adjusted to take account of the transitional provisions) have ranged from 3 years' imprisonment at the upper end to 12 months' imprisonment at the lower. In Marris v The Queen [2003] WASCA 171, there was a sentence of 2 years' imprisonment suspended for 18 months.

93 Although not mentioned in Wheeler JA's review of the cases, Riggall v The State of Western Australia [2008] WASCA 69 is another case in which a sentence of imprisonment to be served immediately was not imposed. A community based order had been imposed by the sentencing judge, but it was set aside and a spent conviction order was made on appeal and no penalty imposed upon the appellant.

94 In The State of Western Australia v ABM [2004] WASCA 90 the court refused to interfere with a term of 18 months' imprisonment, suspended for 18 months (with two 18 months intensive supervision orders) imposed on the respondent who was 9 years older than a 14 - 15-year-old complainant he sexually penetrated on three occasions. The complainant attended a school for disabled people. She had been a consenting party and had invited the respondent into her bed.

95 In JAF the offences committed by the appellant were committed in circumstances of aggravation in that the child was under the care, supervision or authority of the appellant, and a maximum sentence of 20 years' imprisonment was applicable. The complainant, who was a schoolgirl in a country town, was between 14 and 15 years of age at the time of the offences. She was a student at a school where the appellant was a teacher. He was not her class teacher, but he was the coach of the water polo team in which she played and he was a friend of the family. He was 34 years of age and married with children. The complainant babysat the appellant's children from time to time.

96 Wheeler JA at [2] said that the appellant's position of authority was the general authority of a teacher at a school at which the complainant was a student, although he had no direct responsibility for her. Wheeler JA (with whom Buss JA agreed) said (at [18]) that it was appropriate that the appellant should receive a more serious overall sentence than any of the sentences canvassed in the cases to which her Honour had referred. However, the sentence of 5 years 8 months' imprisonment imposed by the sentencing judge was considered too severe and disproportionate to the sentences canvassed. A sentence of 4 years' imprisonment was substituted.

97 McLure JA (at [25]) considered that the circumstance of aggravation, although not a causal connection with commission of the offences, meant that the offences were serious and called for general deterrence as a 'weighty discretionary factor'.

98 In Simon v The State of Western Australia [2009] WASCA 10, Steytler P conducted a further and more exhaustive review of the cases which have arisen under s 321(2) of the Criminal Code, concluding at [42] that non-custodial dispositions are unusual for offending of this type, but not unknown. A suspended term of imprisonment (14 months suspended for 12 months) was not considered to be an excessive disposition in a case in which an 18 to 19-year-old Aboriginal boy in Kununurra had engaged in sexual intercourse with a 14-year-old girl, whom he believed to be 15 years of age.

99 The principle to be extracted from the cases is that sentences of imprisonment to be served immediately will generally be imposed, but every case is to be considered in accordance with the well established principle that the sentence to be imposed upon an offender must bear a proper relationship to the overall criminality involved in the various offences, viewed in their entirety and having regard to the circumstances of the case, including those referable to the offender personally: Woods v The Queen (1994) 14 WAR 341, 352 and JAF McLure JA at [24].

100 The present case is one in which it is essential to have regard to a complex combination of factors. They include the circumstances which led to the appellant's offending; the circumstances of the offending itself; and all matters personal to the appellant. There is a need for a proper balancing of each of those factors in reaching the end result.

101 In my opinion, the circumstances of the present case were such that the sentencing judge was wrong to conclude that the offence was too serious to allow a sentence of suspended imprisonment.

102 A number of errors have been identified in the sentencing judge's comments. They include the conclusion that the appellant was in a position of trust in relation to the complainant, the conclusion that she needed to be personally deterred, and the fact that his Honour took account of the 'victim impact statement' made by the complainant's mother. These errors may have led the sentencing judge to conclude that only a sentence of imprisonment to be served immediately was appropriate. In my opinion, he was in error in that conclusion.

103 I consider that this was an appropriate case for a suspended term of imprisonment. Such cases are rare when they involve offending against s 321(2) of the Criminal Code, but this is one of those rare cases.

104 As I have pointed out at [24], the sentencing judge imposed sentences of 18 months' imprisonment on each of counts 1, 3 and 4 and a sentence of 9 months' imprisonment on count 2. The sentence of 9 months was ordered to be served cumulatively on the sentence on count 1, but all other sentences were ordered to be served concurrently. The result was an aggregate sentence of 27 months' imprisonment.

105 Because the court considered that the sentencing judge had erred in concluding that only a term of imprisonment to be served immediately was appropriate and because the court considered that a suspended term of imprisonment was appropriate in this case, the court restructured the sentences to impose sentences of 18 months' imprisonment on each of counts 1, 2, 3 and 4, all to be served concurrently. In the result, therefore, the appellant is to serve 18 months' imprisonment on each count, each of which is to be concurrent and each of which is to be suspended for a period of 12 months.

106 In reaching the view that an effective term of 18 months' imprisonment was appropriate before suspension, I took account of the fact that the appellant had, at the time of the hearing of the appeal, served approximately 3 months' imprisonment.

107 I therefore consider that ground 2 should be allowed.

108 This ground contends that the total effective sentence of 27 months' imprisonment was manifestly excessive. In view of the conclusion I have reached in relation to ground 2, it is unnecessary to deal with this ground.

109 This ground contends that the victim impact statement of the complainant's mother was inadmissible and should not have been the subject of submissions made to the judge by the prosecutor. The ground could also have added that the sentencing judge erred in taking account of the victim impact statement of the complainant's mother.

110 I have already dealt sufficiently with this ground. The sentencing judge was in error in taking account of the statement, a portion of which he quoted in his sentencing observations. The ground of appeal should therefore be allowed, although its impact on the case is not great.

111 The sentencing judge purported to make a violence restraining order pursuant to s 63A of the Restraining Orders Act 1997. I have already set out the terms of the order. Although the sentencing judge made no observations about the duration of the order, the actual form of order reveals that it is an order to remain in force for the period of the life of the person bound by it.

112 Section 63A of the Restraining Orders Act 1997 provides (s 63A(1)) that a court convicting a person for a violent personal offence within the meaning of s 63A(5) is to make a violence restraining order against that person for the protection of the victim of the offence, unless there is such an order in force already, for the period of the life of the person who committed the offence. There is also a provision which relates to violence restraining orders which are already in force. Under s 63A(2), an order so made is to specify that the order is to remain in force for the period of the life of the person who committed the offence.

113 Section 63A(5) defines a violent personal offence as meaning an offence against s 283, s 297, s 325, s 326, s 327 or s 328 of the Criminal Code. In the present case, the offences committed by the appellant did not breach any of those provisions. They were offences against s 321 of the Criminal Code. Accordingly, although no argument was put before the sentencing judge in relation to the matter (and although it is not the subject of any ground of appeal), it appears that the sentencing judge had no jurisdiction to make a violence restraining order pursuant to s 63A of the Restraining Orders Act 1997.

114 At the hearing of the appeal, the court quashed all ancillary orders made by the sentencing judge and, thus, the violence restraining order made by him was quashed by that order.

115 In my opinion, the sentencing judge erred in finding the offences committed by the appellant to be too serious to allow for suspension of the periods of imprisonment imposed. For this reason, I joined with the other members of the court in allowing the appeal, quashing the sentence imposed by the sentencing judge and substituting in lieu thereof sentences of 18 months' imprisonment on each of the four counts on the indictment, to be served concurrently, and to be suspended for a period of 12 months.

CJ -v- THE STATE OF WESTERN AUSTRALIA [2009] WASCA 42 (17 February 2009)

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CJ -v- THE STATE OF WESTERN AUSTRALIA [2009] WASCA 42 (17 February 2009)

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