Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA

Appeal - Criminal law - Sentencing - Sexual penetration of a child between 13 and 16 years - Turns on own facts

1 OWEN JA: I agree with the reasons to be delivered by Wheeler JA and with her Honour's conclusion that the appeal should be allowed and a substitute sentence imposed. There is nothing I can usefully add.

2 WHEELER JA: On 3 July 2006, the appellant was convicted by his own plea of guilty of one count of digital penetration of a child aged between 13 and 16 years, and four counts of penile penetration of the same child contrary to s 321 of the Criminal Code (WA) (Code). He was sentenced to 18 months' imprisonment in relation to the digital penetration and 3 years 6 months' imprisonment in respect of each of the acts of penile penetration. The sentences imposed for the penile penetration counts were concurrent with one another but cumulative on the sentence imposed for digital penetration, giving rise to a total aggregate sentence of 5 years, with parole eligibility.

3 The appellant now appeals against his sentence on the basis that the sentences imposed with respect to each count were "well outside the range of sentences usually imposed". A totality argument is also raised on the basis that the learned sentencing judge erred "by failing to adjust the overall head sentence ... so as to adequately reflect the objective criminality of the offending".

4 The relevant facts are as follows. The appellant had worked with the complainant's mother. In or around July 2005, when he was 23, the complainant's mother invited him to live in her home with the complainant, the complainant's two siblings, an adult female friend and her two children. The friend's boyfriend stayed at the house on occasion also.

5 Within approximately one or two months of moving into the home, the appellant commenced a relationship with the complainant, who was at that time 13 years of age. The relationship lasted until approximately May 2006. Some relationship, of a non-sexual nature, preceded the first of these offences. On the first count, the appellant followed the complainant into her bedroom and asked her to lie down on the bed. He then unbuttoned her shirt, unzipped her pants and penetrated her vagina with his finger (count 1). Shortly thereafter, he penetrated her vagina with his penis (count 2).

6 The complainant's mother found out about the relationship and asked the appellant to leave the house in approximately January or February of 2006. The appellant did move out of the house, but continued to maintain a relationship with the complainant. The relationship lasted

approximately a year. The appellant said that he constantly reminded the complainant of the consequences of the relationship, but that he failed to end the relationship because the complainant was "special" to him.

7 In or around mid-March 2006, the complainant sent the appellant a text message, advising him that she wanted to meet to have sex. The appellant collected the complainant and took her back to his place of residence, where they engaged in sexual intercourse (count 3). Sexual intercourse took place on other occasions; when the complainant went to the appellant's residence with a bottle of wine (count 4), and when the appellant picked up the complainant after receiving a text message from her and then drove her to a secluded location (count 5). These were not the only occasions upon which sexual intercourse took place. The complainant said that there were "maybe around 10" (AB 163) occasions, and the appellant admitted to police that there had been 10 to 15 occasions.

8 The complainant's mother became aware that the relationship was ongoing and, at her insistence, the complainant contacted the police. The transcript of the interview with the complainant is contained in the appeal book. It is an unusual document. It appears that the interviewing police officer was either himself embarrassed by the subject matter, or concerned that the complainant might be embarrassed. Many of the questions lack coherence and focus, and there are repeated statements of reassurance interspersed in the middle of them. However, so far as one can tell from the bare page, the complainant does not seem to have been particularly reticent, save that she was obviously very reluctant to describe to the police officers precisely what had taken place between herself and the appellant, of a sexual nature. That is not surprising, given not only the normal reticence which most people have in discussing such matters, but also the fact that adolescents generally have a strong sense of privacy. Despite its length, however, the interview with the complainant discloses little relevant information.

9 The interview does reveal a certain lack of consistency in some of the complainant's accounts. It is not clear whether this arises from the lack of clarity in some of the questioning. It is, however, fair to suggest that, having regard to certain portions of the interview, the prosecution case might not have been an easy one had the appellant not made prompt admissions. Those admissions, and his plea of guilty, are therefore deserving of considerable weight.

10 The personal circumstances of the appellant were that he had no prior convictions for offences of this nature, although he had previously been convicted of offences of dishonesty. There was before the court a number of positive references from friends and from his current employer. Unfortunately, because the matter was heard in the country, we do not have the advantage of having a transcript of the submissions of the State or of the plea in mitigation, which apparently outlined in some detail the appellant's personal history. However, it was conceded by counsel for the appellant, on the appeal, that his personal circumstances were fairly unremarkable. He had had two health issues in the past, apparently having been overweight and later being diagnosed with type 1 diabetes. He had successfully lost weight and maintained that weight loss, but the diabetes caused him some embarrassment and caused him to question his attractiveness to young women. It also appears from the specialist report which was before his Honour that the appellant presented as "cognitively and emotionally immature with low self-confidence".

11 Nothing is known directly about the effect upon the complainant, since she did not provide a victim impact statement. However, so far as one can glean from the surrounding circumstances, this is a case in which, although the appellant's conduct may have caused the complainant to have become sexually active at a younger age than would otherwise have been the case, there is nothing to suggest that the complainant is likely to suffer the sorts of long-term consequences of abuse which were described in VIM v The State of Western Australia [2005] WASCA 233; (2005) 31 WAR 1, [291].

12 The appellant's amended grounds of appeal assert that the sentence of 3 years and 6 months in relation to penile penetration was in each case well outside the range of sentences imposed for offences of this type in the circumstances of the present offending (emphasis supplied); that the sentence of 18 months in respect of the digital penetration was also well outside the range of sentences usually imposed for offences of this type in the circumstances of the present offending (emphasis supplied); and that his Honour erred by failing to adjust the overall head sentence so as to properly reflect the objective criminality of the offending. In relation to the last matter, the appellant submits that there were a number of significant mitigating factors and that the objective criminality needed to be viewed in the light of the consensual nature of the acts, the lack of any significant relationship of trust, and the appellant's plea of guilty, co-operation, comparative youth and lack of similar convictions. I am of the view that the grounds of appeal have been made out. The sentences are excessive in the particular circumstances of this case.

13 Ground 3, in relation to which no leave to appeal was granted, had contended that his Honour did not make allowance for the Sentencing Legislation Amendment and Repeal Act 2003 (WA) (the transitional provisions). His Honour expressly said, when sentencing the appellant, that, in arriving at the sentence, he had taken account of an appropriate discount for the fast-track pleas of guilty and "also after reducing what would otherwise have been an appropriate sentence prior to the amendments to the sentencing legislation which require that a sentence be reduced by one-third". However, his Honour did not embark on the exercise of articulating what the sentence would have been prior to the transitional provisions. That exercise can sometimes be a useful one, particularly where the majority of the cases to which a sentencing judge refers are cases which were decided prior to the transitional provisions. In the present case, it is to be noted that if his Honour had allowed a bare 25% for the fast-track plea of guilty, and had made no allowance for other mitigating factors, then he must have considered that the objective criminality prior to the discount for the plea of guilty and prior to the transitional provisions was such that a sentence of 7 years was appropriate in respect of counts 2 to 5 inclusive and that a sentence of 10 years overall reflected the objective criminality of the offending. That calculation highlights the disproportion between the sentences imposed, and the objective criminality, in the present case.

14 If a complaint of manifest excess is made out, as it is in the present case, it is unnecessary to search for specific error. However, there are two observations made by his Honour which, it seems to me, may have led him to take a more serious view of the present offending than was open.

15 His Honour described the appellant as "the only adult male person in the household" (AB 47). This was, strictly, true. However, it does not seem to me that his circumstances were such that he could be regarded as having had any degree of equality of status with the complainant's mother, whose house it was. There is nothing to suggest that he had any position of real, or even apparent, authority such as might be enjoyed, for example, by a relative or an adult friend of the parents of a child complainant. His Honour also described the appellant as "perhaps not a father figure but nevertheless someone whom the children in that home might have looked up to as a senior adult person" (AB 53). However, it does not seem to me that there is anything in the complainant's interview with police which suggests that she regarded the appellant in that light, whatever may have been the case in relation to her younger siblings. The remarks his Honour made about these matters suggest that he regarded the situation as in some way analogous to that of an adult who has a position of trust in relation to a child, and, if he did so, that would have been an error.

16 His Honour also made what appear to be somewhat contradictory remarks about the relevance of consent. He noted, correctly, that consent was not an element of the offence. He then went on to say that the fact that the complainant might be said to have been a consenting party to the sexual activity "is not an element and not a relevant consideration" (AB 52, emphasis supplied). His Honour then immediately thereafter, however, said that "[i]t is a consideration that she was a willing participant but the consent is not an element of the offence" (AB 52). Those observations perhaps tie in with his Honour's assertion that the evil at which this particular legislation is directed "is to protect young people from themselves and from those who may offend in this way" (AB 55, emphasis supplied).

17 These observations invite attention to the legislative purpose of the prohibition of sexual penetration of a child between the ages of 13 and 16. It is, no doubt, undesirable that young people should embark upon sexual activity at an age at which they may be unable to fully comprehend or to cope with the social and emotional consequences of that activity. To that extent, the legislation is intended to protect young people "from themselves".

18 However, the legislation is also, and, in my view, more importantly, directed to ensuring that those who do not consent to sexual activity are not required to engage in it. In this context, it is recognised that the capacity of a person in this age group to resist moral, social, emotional or other pressure from a person more mature than themselves may be very limited. I set out some of the legislative background in Marris v The Queen [2003] WASCA 171. At [13] of that decision, I noted the comment by the Hon J M Berinson, the then Attorney-General, that " ... the clear intention and target is not sexual activity as such, but sexual activity involving some element of abuse". I said there, and I repeat, that that is a concept of considerable importance in relation to sentencing in respect of offences of this kind. The greater the element of abuse, as evidenced by matters such as disparity in age, or the use of force, or other types of pressure, or of a pattern of "grooming" behaviour, or a betrayal of trust, the greater the culpability.

19 Against that background, I note that some of the offences in question here plainly involved no pressure on the part of the appellant at all. Counts 1 and 2 do, so far as one can tell, appear to have been initiated by him. They do not appear to have involved force, but there would appear to have been some degree of persuasion and pressure.

20 In assessing the appellant's culpability, then, it seems that the serious aspects of his offending come down to this. In relation to at least the first two counts, he was the initiator of the activity, and the complainant would appear to have engaged in it as a result of some degree of persuasion on his part. Further, he repeated the offending on a number of occasions, notwithstanding that, as he acknowledged, he understood it to be unlawful. He was some 10 years older than the complainant and, notwithstanding that he appears to have been relatively immature for that age, a significantly greater degree of maturity should be expected of him than of the complainant. He should therefore have brought an end to the sexual aspect of the relationship.

21 As against those matters, however, he was a young man who had promptly acknowledged his offending, had pleaded guilty on the fast-track, was to some degree immature, appeared genuinely to have cared for the complainant and had a number of referees prepared to speak positively of him, including his employer. He had not previously been imprisoned and, as his Honour noted, it is a serious matter to send a young person to gaol for the first time.

22 In my view, the sentences imposed by his Honour are approximately those which would have been appropriate prior to making an allowance for the plea of guilty and prior to an adjustment for the transitional provisions. In respect of counts 2 to 5 inclusive, it would be my view that a sentence of 4 years would be appropriate prior to adjustment for the fast-track plea and for the transitional provisions. Allowing approximately 30% for the fast-track plea leads to a term of 33 months, which, after allowance for the transitional provisions, is 1 year 10 months in each case. In relation to count 1, I would have considered 18 months appropriate, which, after allowing a little over 30% for the plea and then adjusting for the transitional provisions, gives a term of 8 months.

23 Normally, given that the offences were so close in time and that count 1 appears to have been part of the same sexual episode as count 2, it would have been appropriate to order that the sentences in relation to counts 1 and 2 be served concurrently. However, I think it is appropriate to adopt the sentencing structure used by the learned sentencing judge. Count 1 was the beginning of the appellant's sexual activity with the complainant, and was one of the offences which was, as I have noted, certainly not at her instigation. It would be appropriate that that count be

served cumulatively. In my view, the overall objective criminality would be appropriately marked by ordering that the sentences in respect of counts 2 to 5 inclusive be concurrent and that the sentence in respect of count 1 be served cumulatively upon them. That would give a total term of imprisonment of 2 years and 6 months.

24 I should add that I have considered whether it would be appropriate to suspend that term. I have had regard again to all of the various factors to which I have referred. However, it seems to me that the 10-year disparity in age between the appellant and the complainant, and the appellant's repetition of his offending in circumstances where he appreciated it to be unlawful, and where he had, over the months of the relationship, had an opportunity to consider how he could put an end to it, requires that the term should be served by way of immediate imprisonment.

25 I would therefore set aside the sentences imposed by his Honour and in lieu thereof impose those to which I have referred, giving a total of 2 years 6 months' imprisonment, backdated to 11 September 2006, being the date upon which the appellant was first taken into custody. The appellant will, of course, be eligible for parole 1 year and 3 months from that date.