Criminal law - Appeal against sentence - Sexual penetration of 26­year­old victim without consent - Sentence manifestly excessive - Sentence imposed 5 years 6 months' imprisonment - Offender aged 54 years - Victim intoxicated with alcohol and cannabis - Victim's intoxication intentionally contributed to by the offender - Offender showed no remorse - Birth of child resulted from the offence

FST v The State of Western Australia [2011] WASCA 220

Hili v The Queen [2010] HCA 45; (2010) 242 CLR 520

McKerlie v The State of Western Australia [No 2] [2006] WASCA 274

Mearns v The State of Western Australia [2009] WASCA 153

Miles v The State of Western Australia [2010] WASCA 93

Powell v The Queen (unreported, WASC, Library No 8928, 6 June 1991)

R v Clark [2000] WASCA 229

R v Cleak [2004] WASCA 72

The State of Western Australia v Akizuki [2008] WASCA 267; (2008) 192 A Crim R 373

The State of Western Australia v Vartolo [2015] WASCA 53

Wilson v The State of Western Australia [2010] WASCA 82

2 MAZZA JA: This is an appeal against sentence.

3 The appellant was convicted after trial of one count of sexual penetration without consent, contrary to s 325 of the Criminal Code (WA). The maximum penalty for this offence is 14 years' imprisonment.

4 On 12 June 2015, the appellant was sentenced by O'Neal DCJ to 5 years 6 months' imprisonment with eligibility for parole, backdated to commence on 23 April 2015.

5 The sole ground of appeal, for which leave to appeal has been granted, alleges that the sentence is manifestly excessive. For the reasons which follow, I would dismiss the appeal.

6 The appellant does not challenge any of the sentencing judge's findings.

7 The appellant was a fly-in/fly-out worker who, when he returned home from Perth on his weeks off, had some difficulties sleeping. On occasion, he would travel late at night to Northbridge, an area with which he was familiar.

8 In the very early hours of the morning of the offence, which occurred on a Thursday between 19 August 2007 and 10 September 2007, the appellant was walking along William Street in Northbridge. There, he came upon the victim in the vicinity of a kebab shop. The victim was, at the time, 26 years of age. In the course of speaking to her, the appellant learnt that she had just returned to Perth from the Goldfields, and had earlier been celebrating a reunion with her friends, which involved the consumption of a large quantity of alcohol. She was distressed because at some point in the evening, she had an argument with a friend with whom she was very close and, as she told the appellant, she was refused entry into Connections nightclub, a venue that she regularly attended (ts 336). She told the appellant that she was a lesbian. She was, at the time she spoke with the appellant, in an obvious state of distress. She was also highly intoxicated. His Honour found that the victim was vulnerable by reason of her emotional and intoxicated state.

9 The appellant, on the other hand, was, at all times, reasonably sober. His Honour was satisfied beyond reasonable doubt that the appellant, from at least shortly after he met the victim, formed a plan to, in effect, take sexual advantage of her (ts 337).

10 Eventually, the appellant invited the victim to his house for some drinks and to consume cones of cannabis. The victim accepted the invitation. She was enthusiastic about the prospect of using cannabis. She was, at the time, a long-term daily user of the drug. His Honour was satisfied beyond reasonable doubt that the appellant used 'the bait of cannabis' to lure the victim to his home, and that when they got there, while remaining sober enough to maintain control, he encouraged the victim to smoke cannabis and drink more alcohol (ts 338).

11 The appellant told the victim that if she wanted, she could sleep in his bed and that he would sleep on the couch in the lounge room. A short time later, the victim went into the appellant's room, laid on the bed and passed out. When she passed out, the appellant removed her clothes and had sexual intercourse with her. The victim woke briefly when the appellant was penetrating her from behind and the appellant said, 'Don't worry'. The learned trial judge said that this was a measure of the extent of the victim's intoxication, that even the brief consciousness of being penetrated from behind by a strange man did not rouse her (ts 339).

12 The next morning, the appellant acted as if nothing had happened although the victim was 'highly suspicious' (ts 339). The appellant gave the victim his first name and telephone number and drove her back to Perth.

13 About seven weeks later, the victim learned she was pregnant. She telephoned the appellant, but he denied having sexual intercourse with her. After the birth of her daughter, DNA testing revealed that the appellant was the child's father.

14 At trial, the appellant admitted that an act of sexual penetration had occurred, but said that although the victim was drunk, she was not 'that drunk', and that the act of sexual intercourse was consensual (ts 339). It is plain from the verdict that the jury rejected this aspect of the appellant's evidence.

15 The victim impact statement revealed that the offence has had highly adverse consequences for the victim. She initially struggled with the decision as to whether or not to terminate the pregnancy. The child is now of an age where she has started wondering about her father. This in turn has caused, and continues to cause, what his Honour described as 'extremely troublesome problems for the victim' (ts 340).

16 His Honour observed that while the offence was committed without violence, threats or coercion, other aggravating factors were present. His Honour noted the 'particularly sinister and predatory character' of the offending (ts 339). He elaborated on this point, saying:

You found and exploited a highly vulnerable young woman. Having made her even more intoxicated so that she eventually passed out, you then engaged in unprotected sex with her with the result that she fell pregnant (ts 339).

17 The appellant was, at the time of sentencing, 62 years of age. He was 54 at the time of the offending. His Honour found that the appellant was treated badly as a child, having been effectively abandoned by his parents. The appellant was also subject to physical and possibly other kinds of abuse.

18 The appellant has a short and inconsequential history of prior offending. He has not committed any similar offence in the past. His Honour noted that there had been no further offending since the offence, but concluded that the delay between the commission of the offence and its prosecution could not be described as showing rehabilitation (ts 341).

19 Although the appellant had not worked for some time prior to trial, he had an otherwise long history of employment which his Honour said was to his credit. His Honour referred to the pre-sentence report and to a report prepared by a clinical psychologist in relation to the appellant. His Honour described those reports as revealing a number of 'contradictions' about the appellant. His Honour said that it was difficult to say what the appellant's prospects for rehabilitation were. He concluded that while he did not believe the appellant posed a high risk of reoffending, he was unable to conclude that he posed no such risk. His Honour found that there was no remorse by the appellant, and that the appellant regarded himself as a victim (ts 341).

20 His Honour characterised the offence as serious. He noted that it was accepted on behalf of the appellant that an immediate term of imprisonment was the only appropriate disposition (ts 342 - 343).

21 I respectfully adopt the statement made by McLure P and Owen JA in Wilson v The State of Western Australia [2010] WASCA 82 [2] as to the general principles applicable to an appeal against sentence. Those principles are well accepted and there is no need to repeat them here.

22 Counsel for the appellant acknowledged the serious aspects of the appellant's offending as found by the sentencing judge but submitted that, having regard to the appellant's generally favourable antecedents and by reference to cases, including R v Clark [2000] WASCA 229; McKerlie v The State of Western Australia [No 2] [2006] WASCA 274; Mearns v The State of Western Australia [2009] WASCA 153; Miles v The State of Western Australia [2010] WASCA 93; FST v The State of Western Australia [2011] WASCA 220 and The State of Western Australia v Vartolo [2015] WASCA 53, it may be seen that the sentence imposed upon the appellant was outside of a sound sentencing discretion.

23 The respondent submitted, in effect, that the aggravating factors in the present case differentiated it from the cases cited by the appellant, and that having regard to all relevant sentencing factors, the sentence imposed was not manifestly excessive.

24 A claim of manifest excess is a claim of implied error. The sentence must be shown to be unreasonable or plainly unjust. In determining whether such an error has been made, regard is had to the maximum penalty for the offence (14 years' imprisonment in this case), the place which the criminal conduct occupies on the scale of seriousness of the offence in question and the personal circumstances of the appellant.

25 His Honour was correct to characterise the offence as serious. Soon after meeting the victim and realising that she was homeless, upset and intoxicated, the appellant enticed her to his house with the promise of more alcohol and cannabis. As was found by his Honour, the appellant exploited a highly vulnerable young woman (ts 339). He did so planning to engage in some type of sexual activity with her. Once at his house, the appellant remained sober enough to be in control and plied the victim with more alcohol and cannabis. When she passed out and was in no state to prevent the commission of the offence, he sexually penetrated her without consent. The fact that the appellant committed that offence while she was in a vulnerable state is an aggravating factor, but that aggravation is exacerbated by the fact that the appellant deliberately contributed to her intoxicated state for the purpose of taking advantage of her.

26 A further seriously aggravating feature of this case was that the appellant engaged in unprotected sexual intercourse with the victim who became pregnant. As a result, she had a serious emotional conflict about whether to have the child, and now must face the very difficult prospect of what to tell her child about her father.

27 The purpose of examining comparative cases is to provide a yardstick with the object of achieving broad consistency in sentencing. However, as the High Court pointed out in Hili v The Queen [2010] HCA 45; (2010) 242 CLR 520, care must be taken in applying sentences imposed in other cases [53]. The range of sentences imposed in previous cases does not fix the range of an appropriate exercise of the sentencing discretion. Because of the enormous range of conduct and the great variation of the personal circumstances of offenders, there is no tariff for sexual offences. In the end, each case must be decided upon its own facts and circumstances.

28 In The State of Western Australia v Akizuki [2008] WASCA 267; (2008) 192 A Crim R 373, Steytler P, after undertaking a detailed review of a large number of cases, drew these conclusions:

As might have been anticipated, this review of the cases reveals that the circumstances of sexual offending, and of sexual offenders, are almost infinitely variable. That, in turn, means that the sentence imposed in one case can provide only very limited guidance in deciding what sentence should be imposed for a similar offence in another case. However, some conclusions can be drawn, as follows:

(1) An average starting point for a case of penile penetration of the vagina without consent, absent circumstances of aggravation, is in the order of 7 years' imprisonment under the former sentencing regime, or around 4 years and 8 months' imprisonment under the transitional regime. That starting point takes no account of any factors in mitigation.

(2) Because the circumstances of sexual offending and sexual offenders are so variable, nothing will be achieved by specifying a range of sentences customarily imposed. The range of potential aggravating features is so huge that features of that kind can either dramatically increase the sentence imposed (bearing in mind that the maximum sentence for an aggravated offence is 20 years' imprisonment: s 326 of the Criminal Code) or have little or no effect on the sentence imposed. The range of potential mitigating factors is at least equally extensive. They might result in a very large reduction in sentence or little or no reduction.

(3) Nor will anything be achieved by specifying a different starting point for each category of sexual penetration without consent. It should not be assumed that one form of sexual penetration is necessarily more, or less, serious than another. As Wheeler JA pointed out in C v The State of Western Australia [2006] WASCA 261 [35], there is no 'hierarchy of sexual penetration'. For example, although digital penetration will ordinarily be less serious than penile penetration, that is not inevitably so. It might, in particular circumstances, be no less serious or even more serious. The seriousness of every offence of unlawful sexual penetration must be determined by its own individual circumstances: C [35] (Wheeler JA); Cavill [266] - [267] (Miller JA).

That seems to me to be about as much guidance as can be obtained from the cases. I appreciate that it is less than sentencing judges might wish. However, that is a necessary consequence of the court's obligation to tailor each sentence to the individual circumstances of the case, having regard for the maximum penalty provided by the legislature and, to the extent that they can be of assistance, sentences customarily imposed in similar circumstances [68 - 69].

29 In Vartolo, I undertook an analysis of a number of cases with features similar to the present case, namely: Powell v The Queen (unreported, WASC, Library No 8928, 6 June 1991); Clark; R v Cleak [2004] WASCA 72; Mearns; Miles and FST. In all of these cases, save Cleak, the offenders were convicted after trial. In Cleak, the offender entered a late plea on the first day of his trial.

30 It is convenient to repeat my analysis of these cases, particularly as the appellant in the present case relied upon Clark, Mearns, Miles and FST:

In Powell, the appellant was convicted of one count of sexually assaulting a 34-year-old female complainant by penetrating her vagina with two of his fingers without her consent while she was asleep. The appellant was 19 years of age at the time of the offence, with a record of dishonesty, but with no prior offences of a sexual nature. However, the sexual assault offence occurred at a time when he was on probation. The offence was said to be an isolated act of short duration. There was no evidence of remorse or victim empathy. The sentence that was imposed at first instance, allowing for time spent in custody, of 5 years' imprisonment was reduced on appeal to 3 years' imprisonment (2 years post-transitional).

In R v Clark, the Crown appealed against a sentence of 3 years 8 months' imprisonment (approximately 2 years 5 months post-transitional) imposed upon an offender who was convicted after trial of one count of aggravated sexual penetration without consent, the circumstances of aggravation being that the complainant was between the age of 13 and 16 years. In that case, the respondent, who was at the time just short of his 21st birthday, engaged in sexual intercourse with the complainant, a girl a few days short of her 15th birthday, who was at the time unconscious as a result of alcohol intoxication. There were significant personal mitigating factors, including the respondent's young age. The common law principles governing Crown appeals applied. The Crown's appeal was dismissed.

Cleak was another Crown appeal. In that case, the respondent, who was aged 18 at the time of the offence, committed one count of sexual penetration without consent. The victim in that case, a girl aged 16, had been known to the respondent for most of his life. The victim considered him to be 'like a brother' to her. The victim was affected by alcohol and fell asleep in the respondent's bed. While she was asleep, the respondent engaged in one act of sexual intercourse with her. The respondent was sentenced at first instance to 18 months' imprisonment suspended for 12 months. The Crown's appeal was upheld. The respondent was resentenced, having regard to the now abolished double jeopardy principle and circumstances which had occurred since he was sentenced, to 20 months' immediate imprisonment with eligibility for parole.

In Mearns, the appellant was convicted after trial of one count of sexual penetration without consent and sentenced to 3 years 4 months' immediate imprisonment with eligibility for parole. In that case, both the appellant and the complainant were 18 years of age. They had a brief sexual encounter a year earlier. On the night in question, they met in Northbridge and, after consuming a quantity of alcohol, returned to the complainant's house. The complainant permitted the appellant to sleep in her bed and, while she was asleep, he sexually penetrated her vagina with his penis. The appellant was a person of prior good character and the significant delay between the commission of the offence and the appellant being interviewed by the police was mitigatory. This court set aside the sentence imposed at first instance of 3 years 4 months and substituted a sentence of 2 years' immediate imprisonment.

In Miles v The State of Western Australia, the appellant was convicted of one count of sexually penetrating the complainant without her consent. In that case, the complainant, who was 17 years of age, fell asleep. She was woken up by the appellant, who had inserted two fingers inside her vagina. After a short time, he withdrew his fingers and turned away. The appellant was, at the time, 33 years of age and was the subject of an intensive supervision order. The sentence of 2 years' immediate imprisonment was not disturbed on appeal.

In FST, the appellant, who was, at the time of the offence, 43 years of age, was convicted of one count of sexual penetration without consent and sentenced to 4 years' immediate imprisonment. In that case, the complainant was celebrating the conclusion of end-of-year exams with the appellant's partner at their residence. The complainant became intoxicated and went to sleep in one of the bedrooms. While she was sleeping, the appellant sexually penetrated her vagina with his penis without her consent. During intercourse, the complainant woke up and objected to what was happening to her. At this point, the appellant desisted and left the room. Shortly after the offending, the complainant left the house and sat in the driveway in a traumatised state. The appellant came out and spoke to her and drove her to another address at her request. By a majority, the sentence of 4 years' imprisonment imposed at first instance was set aside and a term of 3 years' immediate imprisonment was substituted [72] - [77].

31 Vartolo itself was a State appeal against sentence. The appellant, a 25-year-old male offender with a minor prior record, pleaded guilty to two counts of sexual penetration without consent. The victim was asleep when the appellant, who was a complete stranger to her, lay beside her and penetrated her vagina with his fingers, and then inserted his penis into her vagina. The victim woke up thinking that it was her boyfriend, but instead found that it was the appellant. The appellant was sentenced at first instance to 1 year's immediate imprisonment on count 1 (the digital penetration) and 2 years' immediate imprisonment on count 2 (the penile penetration). The learned sentencing judge ordered that the sentences of imprisonment be served concurrently. This court concluded that the individual sentences were manifestly inadequate and that the total effective sentence infringed the first limb of the totality principle. This court substituted individual sentences of 2 years' imprisonment on count 1 and 3 years and 6 months' imprisonment on count 2. These sentences were ordered to be served concurrently, thus the total effective sentence was held to be 3 years 6 months' immediate imprisonment.

32 The other case referred to by the appellant is McKerlie [No 2]. In that case, the 44-year-old offender was convicted after trial of a number of sexual offences against a young female boarder. For the most serious of these offences, sexual penetration without consent, the appellant was sentenced to 4 years 8 months' imprisonment. The other sentences were ordered to be served concurrently.

33 The sentence imposed in the present case is higher than any individual sentence imposed in the cases which have been cited. However, that does not inevitably lead to the conclusion that the sentence imposed in this case was manifestly excessive.

34 The appellant in the present case was not youthful nor remorseful. He did not plead guilty. While this is not an aggravating factor, he did not have the advantage of a plea of guilty. What elevates the seriousness of the present offence above the cases which have been cited is the

combination of the aggravating factors that I have already identified and that need not be repeated. While the personal circumstances of the appellant are favourable, the seriousness of what he did substantially outweighs the mitigation that can be given to those personal circumstances.

35 Having considered all relevant sentencing factors, I have not been persuaded that the sentence that was imposed upon the appellant in this case is unreasonable or plainly unjust. It is not manifestly excessive. The ground of appeal has not been made out. The appeal must be dismissed.