Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA

Criminal law - Appeal against sentence - Sexual offence - Whether error in finding relationship of trust - Significance of Dempsey factors - Turns on own facts

Dempsey v The Queen (Unreported, WASCA, 9 February 1996, Library No 960059)

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

1 McLURE P: The appellant appeals against his sentence of 18 months' imprisonment for one count of indecent assault contrary to s 323 of the Criminal Code (WA) (Code). The offence involved touching the complainant's breasts.

2 On 16 August 2010, the appellant was arraigned on an indictment containing two counts, one for indecent assault of the complainant and the other for sexual penetration of the same complainant by inserting his penis into her vagina without her consent. He pleaded not guilty to both counts. A voir dire was then conducted at which confessional evidence was ruled inadmissible by Yeats DCJ. The appellant was re-arraigned on 17 August 2010 and he pleaded guilty to count 1. That plea was accepted by the State in full satisfaction of the indictment. Sentencing took place on 18 August 2010.

3 The facts stated by the prosecutor were as follows. The complainant is a slightly built Aboriginal woman who was aged 18 at the time of the offence. She weighed 49.5 kg. The appellant is a solidly built Aboriginal man and a distant relative of the complainant. She refers to him as 'uncle' and has known him since she was a little girl.

4 During the afternoon and evening of Saturday 7 February 2010, the complainant was drinking at various friends' houses. She became very intoxicated. At about 2.00 am on 8 February, the complainant was walking along the street in the Broome town-site and was observed by the appellant. He offered her a lift home which she accepted because she knew him as her uncle. The complainant fell asleep in the front of the vehicle. The appellant drove to his home in Broome, stopping at a Caltex service station on the way.

5 Upon arriving at his home, the appellant woke the complainant. She was so affected by alcohol that the appellant had to assist her to walk inside. He took the complainant into the first bedroom and laid her on a mattress on the floor. The complainant was wearing a black body suit, black leggings, white shorts and a purple singlet. The appellant touched her body and breasts while she was naked. The complainant recalled his head being between her legs at one point. It is the touching of the breasts that constituted the offence of indecent assault.

6 Those facts were admitted by the appellant save for the claim that 'at or about 2 am on 8 February, the complainant was walking along the street in the Broom town-site and was observed by the [appellant]. He offered her a lift home'. The appellant's position was that he and the complainant were both at the home of a Mr S Williams when the appellant was asked by someone to drive to a service station to buy cigarettes. The complainant asked to go with him for a ride and jumped into his vehicle. The sentencing judge said it was unnecessary to resolve that dispute because it did not impact on the penalty to be imposed (ts 128).

7 The appellant's version of the facts continued. After he purchased the cigarettes at the Caltex service station, he returned to Mr Williams' place with the cigarettes, dropped them off and was heading home but the complainant did not want to get out of the car. The appellant drove past the victim's house 'but she did not want to get out there and ultimately he made his way back---' (ts 137 - 138).

8 The sentencing judge interrupted at this point and the following exchange took place:

YEATS DCJ: I'm not going to accept that.

CORISH MR: As your Honour please, but I'm simply---

YEATS DCJ: I'm just not going to accept that.

CORISH MR: Well, ultimately they made their way back to his house and we know from the statement of---

YEATS DCJ: He took her to his house.

CORISH MR: Took her, your Honour?

YEATS DCJ: Yes. Well she didn't go there by herself. He took her there.

9 It is not clear precisely what the sentencing judge was not prepared to accept. That ambiguity was not clarified.

10 The facts on which the sentencing judge relied in sentencing the appellant go beyond the unchallenged facts stated by the prosecutor. In particular, the sentencing judge said that (1) the appellant 'ended up offering [the complainant] a lift home'; (2) the appellant had his face 'down in her private area'; and (3) the complainant tried to resist the appellant but could not because she was so intoxicated.

11 The first matter is inconsistent with the appellant's unresolved challenge to the prosecutor's statement of facts. As to the remaining matters, the sentencing judge did not give notice to the appellant of those potential adverse findings. Further, there is no proper evidentiary foundation for making them. In particular, it is apparent from the content of the complainant's deposition that it could not be relied upon to establish any aggravating factor beyond reasonable doubt. Her memory of events was severely impaired by the level of her intoxication. Moreover, the final two matters arise in the context of describing the possibility of a sexual offence which was never the subject of any charge against the appellant. Of course no regard can be had to any evidence that had been ruled inadmissible.

12 The sentencing judge listed what she described as the circumstances of aggravation, being the complainant's youth, her very small stature and the age disparity between the appellant and the complainant. She continued:

The most serious aggravation I consider is the breach of the relationship of trust within the extended family of which you are a member. You left Broome and went to Perth because in my view you recognised that you had done a terrible thing to a very young, vulnerable girl that you were in a position of uncle to within the extended family. It was an occasion when she thought she could trust you, and she should have been able to trust you (ts 148).

13 The sentencing judge expressly relied on the breach of trust as a factor requiring the imposition of a term of immediate imprisonment (ts 148).

14 The appellant relies on four grounds of appeal. He contends the trial judge erred:

(1) in finding that there was a relationship of trust between the appellant and the complainant, which the appellant breached;

(2) in failing to take into account, or to adequately take into account, the appellant's prospects of rehabilitation;

(3) by imposing a sentence that was manifestly excessive;

(4) in failing to properly consider and impose a suspended term of imprisonment.

15 There are well-known categories of relationships and positions that are presumed to give rise to a relationship or position of trust. The categories include parent (and other close relatives) and child, employer and employee, doctor and patient and priest and penitent. The categories are not closed. The presumption, if not rebutted, entitles the court to be satisfied beyond reasonable doubt of the existence of a relationship or position of trust. Where the presumption does not apply, the prosecution has to prove beyond reasonable doubt that there was in fact a relationship of trust between the particular offender and his or her victim.

16 The relevant facts in this case are as follows. The complainant was the daughter of the appellant's fourth cousin. She had known the appellant since she was a little girl and referred to him as 'uncle'. However, the complainant did not know she was related to the appellant. To the contrary, the complainant stated in her deposition that the appellant was not related to her. The facts do not establish a relationship of such a nature as to give rise to a presumption of a relationship of trust.

17 The appellant accepted that his conduct breached a 'taboo' that applies within extended families in indigenous populations in the Kimberley. I infer the taboo relates to all sexual conduct between members of the extended family, including conduct between consenting adults. The breach of taboo caused the appellant to be ashamed and to move, with his family, from Broome to Perth. The taboo cannot give rise to a relationship of trust where none otherwise exists. Of course, the infringement of the taboo is relevant to the extent that it increases the impact of the offence on the victim. Indeed, in some circumstances, the mere fact that the offence has been committed by a relative may aggravate the seriousness of the offending: The State of Western Australia v Richards [2008] WASCA 134 [49].

18 Moreover, the evidence does not establish that there was in fact a relationship of trust between the appellant and the complainant. There is nothing in the complainant's deposition to support the prosecution assertion, a central part of which was challenged by the defence, that the complainant accepted the appellant's offer to take her home because she knew him as her uncle. Having regard to the extent of the complainant's intoxication, it would be unsafe to draw any inferences about her reasons for getting into the appellant's vehicle. Further, the bare facts that the complainant referred to the appellant as 'uncle' and that she had known him since she was a little girl are not capable of supporting such a finding. I would uphold ground 1.

19 Before leaving this issue, it is necessary to make some broader observations. The State routinely relies on what are known as the 'Dempsey' factors (taken from the judgment of Murray J in Dempsey v The Queen (Unreported, WASCA, 9 February 1996, Library No 960059) when making sentencing submissions in relation to sexual offences. However, it needs to be understood that the Dempsey factors were identified in the context of sexual offences in which consent is not an element of the offence because the sexual offending is against a child. In those situations, a relationship or position of trust (or authority) between the offender and the victim is significantly aggravating because of its direct connection with better enabling or facilitating the actual sexual conduct constituting the offence. That is to be contrasted with offences where absence of consent to the conduct is an element of the offence. A relationship or position of trust may present the offender with physical opportunities to offend but it does not better enable or facilitate the actual sexual conduct, there being proven absence of consent.

20 Moreover, disparity in age is ordinarily a weighty sentencing factor in offences against children, particularly where the child consents to or acquiesces in the sexual conduct. It has little bearing in those cases where the prosecution establishes that the victim did not consent to participating in sexual conduct.

21 Ground 1 having been upheld, it is unnecessary to deal with the remaining grounds of appeal. As I am of the opinion that a different sentence should be imposed it is necessary to uphold the appeal and re-sentence the appellant.

22 The appellant was aged 42 at the time of sentencing. He was in a de facto relationship and had three young children. He had been working at the Sober Up Shelter in Broome at the time of the offence.

23 The sentencing judge found that the offence was out of character and that despite his record of prior offending, he was of relatively good character. The appellant had had no prior appearances in the superior courts and had not previously been sentenced to imprisonment.

24 The appellant was intoxicated at the time of the offence. His prior offending was also alcohol related. The court was informed that he and his family intended to relocate to a dry community in the North West.

25 The sentencing judge described the victim impact statement as very moving and indicated how serious the offence was from the complainant's perspective. There is nothing in the victim impact statement to suggest that the complainant had attempted, or was able, to distinguish between the effect of the offence for which the appellant was convicted and the other matters in her deposition regarding an uncharged act of greater seriousness. Some caution is required in that regard.

26 The appellant tendered two references, one from the Bishop of Broome and the other from a co-worker at the Broome Sober Up Shelter. The Bishop of Broome said the appellant 'is a person who has the potential to exercise leadership and to live a life responsibly according to the rightful expectations of others. He has in the past, with regard to his family and his community, given the sort of example that you would only describe as exemplary'.

27 The Bishop confirmed the appellant's remorse and positive prospects of rehabilitation. He supported any application for leniency. The co-worker described the appellant as hard-working, reliable and patient and kind with clients.

28 Weight also has to be given to the appellant's plea of guilty. Counts 1 and 2, were on the State case, part of a single transaction. The timing of the plea was clearly affected by the need for the court to resolve the challenge to the admissibility of the confessional evidence.

29 I am satisfied that a term of imprisonment for the offence is the only appropriate sentencing option. The complainant was young and, having regard to the level of her intoxication, very vulnerable. The appellant, with a degree of deliberation, took advantage of that vulnerability. Moreover, there is a need for general deterrence. Sexual offending is a matter of deep concern throughout the Australian community, including the Aboriginal community.

30 However, having regard to the proven circumstances of the offending and the mitigating factors, including the appellant's plea of guilty, his genuine remorse, his otherwise generally good character and his positive prospects of rehabilitation, I would suspend the term of imprisonment to be imposed. The appellant has been in custody since 18 August 2010, a period of more than 7 months. Taking into account the time already spent in custody, I would impose a term of imprisonment of 7 months, suspended for 3 months.

31 For these reasons, I would allow the appeal, set aside the sentence imposed by the sentencing judge and in lieu thereof, impose a sentence of 7 months' imprisonment to commence from the date of the making of these orders, suspended for 3 months. If the appellant commits a further

offence in the period of suspension, he is liable to serve the term of imprisonment.

33 MAZZA J: I agree with the orders proposed by McLure P, for the reasons she gives. I wish to make some short additional comments of my own about ground 1.

34 As McLure P has said, the categories of presumptive relationships and positions of trust are not closed. Further, there will be cases which do not come within a category, but which are, in fact, relationships of trust.

35 The existence of the relationship of trust between the victim and the appellant was disputed. It was plainly a matter of aggravation. Accordingly, it had to be established by the State beyond reasonable doubt.

36 Both the victim and the appellant were Aboriginal people from the West Kimberley. Her Honour, rightly in my view, recognised that in traditional Aboriginal society kinship is based upon an extended concept of family: Fryer-Smith, The Aboriginal Benchbook for Western Australia Courts, 2nd ed, ch 2, par 2.5. However, it does not follow that there existed, in this case, either a presumptive or factual relationship of trust between the victim and the appellant.

37 I am satisfied, having regard to all of the circumstances of this case, including the extended concept of family, that the evidence was incapable of supporting a finding beyond reasonable doubt that there was a relationship of trust between the victim and the appellant.