Applicant : Unrepresented Criminal Appellants Scheme

1 MALCOLM CJ: In my opinion this application for leave to appeal against sentence should be refused for the reasons to be published by Burchett AUJ with which I am in agreement. In particular, I associate myself with the comments made by his Honour in respect of the submissions made by counsel for the Crown to the learned sentencing Judge regarding the applicant's allegation of consent in relation to the original charge of rape.

2 WHEELER J: I have had the advantage of reading in draft the reasons for decision to be published by Burchett AUJ. I am generally in agreement with those reasons and with his Honour's conclusion that this application for leave to appeal against sentence should be refused. In relation to the issue of whether or not consent to any sexual relations with the applicant was given by the young woman concerned, I would add only these observations.

3 As his Honour Burchett AUJ has observed, absence of consent was not an element of the offences of which the applicant was convicted. Absence of consent would have been, if established, a factor aggravating those offences. Once absence of consent was alleged by the Crown and disputed by the applicant, it was for the Crown to prove that circumstance on a trial of the issue, if it was sought to have his Honour sentence the applicant on the basis that there had been no consent. There was no trial of that issue, and therefore both his Honour and this Court must approach the applicant's sentencing on the assumption that the young woman did consent.

4 In my view, it is clear from the remarks made by the learned sentencing Judge that he did sentence the applicant upon the basis of the factual assumptions to which I have referred. For the reasons explained by Burchett AUJ however, the sentence imposed by his Honour was one appropriate to those circumstances of the offence to which his Honour could, and did properly have regard.

5 BURCHETT AUJ: This is an application for leave to appeal against sentence. The applicant is a man, aged 31 at the time of the offences, who pleaded guilty to two counts of indecently dealing with a child (a girl just 14 years old) contrary to s 321(4) of the Criminal Code, and two counts of sexual penetration of the same child contrary to s 321(2). In respect of each of the counts of indecent dealing with the child, a sentence was imposed of imprisonment for 3 months, to be served cumulatively, and cumulatively upon concurrent sentences of 4 years that were imposed in

respect of each of the counts of sexual penetration of the child; so the total head sentence was 4 years and 6 months, in respect of which the applicant was eligible for parole.

6 The context of the commission of these offences may be outlined briefly. After a row in which her mother struck her, the child left her home, seeking shelter with a married uncle who did not feel able to take her in because his wife was occupied with the care of a sick baby. He telephoned his sister, the de facto wife of the applicant, telling her the mother of the child had "assaulted [her] and then kicked her out onto the street". That was about two months before the sexual penetration offences (which were committed shortly after the other two offences). During the period of about two months, the child lived in the home of her aunt and the applicant.

7 It was admitted by the applicant, when interviewed by police after the child complained, that on one occasion he touched her breasts over her clothing; on another occasion he touched her vagina through her clothing; on 29 March 2000, he sexually penetrated her by an act of cunnilingus; and, on that same occasion, he proceeded to penial sexual penetration of her. What was not admitted then, or upon the entry of the pleas of guilty, was the child's assertion that his conduct was without her consent. On the contrary, in a lengthy videotaped interview with police officers, the applicant asserted that his initial physical contacts with her took place in the course of mutual touching of each other in the home, and that she was also a willing participant in the final acts of sexual intercourse, which occurred in her bedroom late in the evening, a lodger whose bedroom was next to hers being in the house. As regards the period before those final acts, the applicant's answers receive some support from copies of diary entries said by his de facto wife (without contradiction) to be in the child's handwriting. These entries include exultant mention of her pleasure in engaging in sexual fondling with the applicant, and make express reference to contact of that kind initiated by herself.

8 The sentencing judge pointed out, at the time when the pleas were entered, that the question of consent or not would have to be determined. As a consequence, the matter was twice adjourned. Finally, the Crown decided not to press any case that the child had not consented, and it was on this basis that the pleas were dealt with.

9 Although the offences would certainly have been more grave if there had been no consent, they remain grave offences notwithstanding the consent that was given. The nature of that consent must be considered. It was given by a child who had just turned 14, and was known to be in a disturbed state of mind and a very vulnerable situation. She had quarrelled seriously with her mother; an uncle had refused to take her in; and if she were to quarrel now with her aunt's de facto husband, what would become of her? The offences occurred within her aunt's home, where she should have been protected and, if possible, guided - where, at least, no advantage should have been taken to exploit her for an adult's sexual gratification. That a mature person acted on her childish consent was a betrayal. It was also a grave departure from the standard required of all persons by the law, so as to constitute a serious crime, aggravated by the applicant's breach of the trust imposed on him by the situation.

10 The case was put before the sentencing judge with an acknowledgment that only a custodial sentence would be appropriate. In the applicant's favour, he had no record of any prior sexual crime, although he had committed several relatively minor offences. He had admitted his conduct with only a little demur when questioned, and he had pleaded guilty. He was a man in a steady relationship, and had accepted some responsibility for his own son and his de facto wife's family.

11 The applicant argues, in this Court, that the total sentence of 4 years and 6 months is excessive; that his guilty pleas were not adequately recognised; that the judge should have treated the child's consent "as a mitigating factor"; that his remorse, co-operation with police and willingness to undergo counselling should have reduced the total sentence; that the relatively short period involved lessened his criminality; and that his relationship with the child was wrongly categorised as in the nature of that of an "uncle or trusted adult".

12 In Morley v The Queen [2001] WASCA 49 at [8], the principles upon which this Court should approach such a matter were succinctly restated:

"A court of criminal appeal may not substitute its own opinion for that of the sentencing Judge merely because the appellate court would have exercised its discretion in a manner different from the manner in which the sentencing Judge exercised his or her discretion. An appellate court may interfere only if it is 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: Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665. ... Every case must be given individual consideration for the purpose of arriving at a proper sentence, having regard for the particular circumstances of that case. At the same time, and so far as is reasonably possible, there should be consistency in sentencing. Sentencing disparity should be avoided, or at least minimised. ... However, the variable factors in cases of sexual assault are so numerous that it is difficult to identify a range, bracket, normal level or pattern of sentence for the particular offence which is under consideration. It was in this context that Burt CJ said in R v Ginder (1987) 23 A Crim R 1 at 4 that '... a tariff for offences [of this type] will remain as elusive as ever'. Nevertheless, that the so-called 'tariff' may be elusive does not absolve a court of criminal appeal from the responsibility of reviewing sentences to eliminate inconsistency so far as that is possible. In so doing, however, a court of criminal appeal must fully recognise the discretionary character of the sentencing function and must accord to sentencing Judges 'a wide measure of latitude': Postiglione v The Queen [1997] HCA 26; (1997) 189 CLR 295 per Kirby J at 336. As the High Court said in Lowndes (supra) at 672 'the discretion which the law commits to sentencing judges is of vital importance in the administration of our system of criminal justice'. The corollary of this is that the courts of criminal appeal will not tinker with sentences."

The reference, in this case, to the immunity of the sentencing Judge's discretion from appellate tinkering, within "a wide measure of latitude", was approved in Little v The Queen [2001] WASCA 87 at [16].

13 In my opinion, it cannot be held that the sentences imposed on the applicant were outside the range within which a sound discretionary decision was required to be confined. I accept, as did the sentencing judge, that Podirsky (1989) 43 A Crim R 404 is concerned with a different type of case, involving what used to be called rape. But, for such a case, the Chief Justice there indicated (at 411) a sentence double the length of the concurrent sentences under examination here was "commonly imposed". On the other hand, D v The Queen [2000] WASCA 137 (Pidgeon, Wallwork and Miller JJ) is a case of indecent dealing with children over a period of a number of years that did not involve penetration, or attempted penetration, or any form of overt coercion (see the judgment of Miller J at [8]). Miller J, speaking for the Court, said (at [15]):

"In my view, it could not be said that a range of 7 to 9 years' imprisonment for the combination of offences committed by this appellant was beyond the range appropriate for the case."

He also approved a statement in Trescuri v R [1999] WASCA 172 at [29] indicating that good antecedents, contrition, and prospects of rehabilitation have only a limited place in the fixing of a sentence "in a case of prolonged sexual molestation by a mature adult of children entrusted to his care". Here, the molestation is shorter, but the principle still has force, although the early termination of the conduct makes a difference. That termination, of course, occurred because the child complained - not at the volition of the applicant.

14 The selection of 4 years as appropriate in respect of the penetration offences was within the range of choices open to the judge after allowing for the pleas of guilty, the remorse and co-operation shown by the applicant and the unlikelihood of further offences. That he had pleaded guilty was expressly acknowledged by the judge, so it was certainly taken into account, although, in my opinion, his Honour would have done better to have followed the modern practice of indicating the measure in which that acknowledgement was reflected in the sentence. Where a sentence is appropriate upon a plea of guilty, the judge's failure to spell out in express terms the fact that the plea has been taken into account is not fatal: Reg v Wharton, The Times, 27 March 2001.

15 I would reject the applicant's argument that the complainant's consent should have been treated as an element of mitigation. The point is really of an academic nature in this case, since the judge undoubtedly gave full weight to the effect consent had on the character of the conduct in question. It was he who raised the matter, and rightly insisted it be determined before an appropriate sentence could be ascertained. However, I think the applicant's contention is, in any case, wrong. The crimes were committed by indecent dealing with, or by sexual penetration of, a consenting child. The nature and circumstances of the consent were simply part of the series of events the occurrence of which constituted the crime and established the degree of its gravity. Crimes of this kind are most often committed within the home. Their commission is made easier by the dependent state of a child in that place vis-à-vis a dominant adult of the household. If the child consents, that consent cannot be divorced from the situation of both child and adult in which it occurs. The legislation aims to protect children, both against adults and against themselves. It would be quite inconsistent with the policy of the legislation to construe it as allowing an offender to mitigate the offence by obtaining consent. Mitigating circumstances are, as is stated in Black's Law Dictionary, 6th ed (1990), "[s]uch as do not constitute a justification or excuse for the offense in question, but which, in fairness and mercy, may be considered as extenuating or reducing the degree of moral culpability". Archbold (2001) at ss 5-175 to 5-177 treats factors such as assistance to the authorities, on the one hand, or forms of entrapment, on the other, as mitigating factors. Here, the consent did not detract from the crime, extenuate it or reduce the degree of moral culpability by comparison with some standard or normal version of the crime so as, in fairness and mercy, to mitigate it; the consent was but part of the very kind of situation at which Parliament aimed. The applicant's case was not presented to the judge as one where the child did more than consent, being the real instigator of what occurred, in a way that might perhaps raise by analogy the principles of entrapment.

16 The suggestion that the applicant's relationship with the child was wrongly categorised as in the nature of that of an "uncle or trusted adult" needs little discussion. He was not her uncle by blood, but he was the de facto husband of her aunt, and they had provided her with a home in her time of need. The applicant was a mature adult, more than twice her age, in a position to exercise authority over her in his own household.

17 In my opinion, the application should be refused.

18 There is one further matter of which mention should be made. It did not form any part of the judge's reasons. The submissions of counsel for the Crown at the sentencing hearing (not the counsel who appeared before this Court) included the proposition: "While the offender pleaded guilty to the offence it was not at an early opportunity and further dispute in relation to the facts (namely, consent) was to subject the complainant to the further trauma of a trial". To deal with the applicant's claim of consent in this way was both wrong and extremely unfair. It should not have happened. The Crown had originally alleged rape, but the applicant's case, supported by diary entries in the child's handwriting, was that she was a willing participant; and the Crown, after lengthy delays, had elected not to dispute that. Although, under modern conditions, the necessity has been recognised of changing the original practice whereby the Crown refrained from urging a penalty on the Court (see The Queen v Tait (1979) 46 FLR 386 at 389 - 390), the obligation of scrupulous fairness remains absolute. Lord Devlin expressed the root of the matter in his The Criminal Prosecution in England (1966 reprint, p23):

"It is now well established that prosecuting counsel is to act as a minister of justice rather than as an advocate; he is not to press for a conviction but is to lay all the facts, those that tell for the prisoner as well as those that tell against him, before the jury."

Needless to say, this principle is just as applicable to a sentencing hearing as to a jury trial.