Court of Appeal (WA)|2007-11-09|Before: Steytler P, Lure JA, Miller JA

GALLOP -v- THE STATE OF WESTERN AUSTRALIA [2007] WASCA 243 (9 November 2007)

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

CITATION : GALLOP -v- THE STATE OF WESTERN AUSTRALIA [2007] WASCA 243

Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA

Criminal law and procedure - Appeal against sentence - Single indecent assault on adult complainant - Conditional oral offer of guilty plea to police prosecutor not accepted - Sufficient discount given for plea of guilty - Sentence not manifestly excessive by reason of failure to suspend term of imprisonment

1 STEYTLER P: The appellant was convicted, after pleading guilty, on one count of indecent assault. He was sentenced to a term of 25 months' imprisonment with eligibility for parole. He appeals against that sentence.

2 The offence was committed on New Year's Eve, 1999. The complainant, a 27-year-old woman, was staying at a motel in Mandurah with her boyfriend. About 1.30 am, after celebrating the new year, the complainant and her boyfriend were walking back to their motel, along the Mandurah foreshore. The appellant, who did not know them, joined them. At one point the appellant put his arm around the complainant's waist so as to guide her across the road. He said that she was 'tickling [him] up'. He was attracted to her and believed that she was attracted to him. The appellant, who was then 38 years old, suggested that the three of them go on to a local nightclub. However, the complainant wanted to go back to the motel. The two men walked her back to the motel. She went to her room. The two men then left for the nightclub. When they arrived at the nightclub the appellant told the complainant's boyfriend that he needed to go to the toilet. Instead, he slipped away and returned to the motel.

3 The complainant had left the door of her room unlocked so that her boyfriend could get back in. The appellant knocked on the door. The complainant, 'acting on autopilot' (as the sentencing judge found), got up, opened the door and then 'crashed on the bed', assuming that it was her boyfriend who had knocked. The appellant made his way over to the complainant. She was lying on top of the bed, fully clothed. She gave the appellant no encouragement of any kind to touch her or engage in any physical contact. Notwithstanding this, he went over to the bed and lay on top of her. She realised that it was not her boyfriend and 'attempted to cry out'. The appellant placed his hand over her mouth in order to stop her screaming and, at the same time, put his hand up her skirt, attempting to touch her genital area. The complainant struggled to get away from him and pulled at his hair. During the scuffle both fell off the bed and onto the floor. The struggle continued. The complainant attempted to scratch the appellant's face. However, he continued to attempt to touch her genital area by placing his hand under her underwear. The sentencing judge found that the appellant succeeded in getting his hands into the complainant's underwear on a couple of occasions, touching her genital area. He was unable to penetrate her. This was only because the complainant kept her legs crossed. Eventually, he gave up and left.

4 In the course of her sentencing remarks, after referring to the facts, the sentencing judge said:

Once she started screaming and fighting you cannot, in my view, have thought she was willing but you kept going. She tried to scream almost immediately. It is true that you neither threatened her nor injured her though she noticed afterwards, she had broken a nail in the struggle but of course that is not an injury as such, nor were you armed with a weapon. Nevertheless, this must have been a very frightening and a shocking attack. Her boyfriend, on returning to the room, found her crying and distressed.

It was a violent attack and ... I have no reason to think that you would not have more seriously violated her had she been a victim who froze and was passive as many women would have been in that situation. It is clear that you desisted due to her sustained resistance.

5 The sentencing judge remarked that, notwithstanding that the appellant's DNA was present in blood from the scratches on the complainant's tee-shirt, no match could be established until July 2006, when the police had other reasons for examining his DNA. When interviewed, the appellant almost immediately admitted his wrongdoing. However, he did not immediately plead guilty to the charge of indecent assault that was brought against him. That was because he was charged, also, with burglary, arising out of what was then believed to have been his unlawful entry into the complainant's motel room. He offered to plead guilty, but only if the burglary charge was dropped. This was because he asserted that he had knocked on the motel room door and been permitted entry. The offer was made orally to a prosecutor who seemingly rejected it. The offer was never conveyed to the investigating police officers or to the office of the Director of Public Prosecutions. Thereafter, the appellant gave no indication of any intention to plead guilty to the charge of indecent assault until shortly before the trial was due to commence, when his plea of guilty to that offence was accepted in satisfaction of the indictment.

6 At the time of sentencing, the appellant was 45 years old. He had been in stable employment since the age of 15. He was married and had children. The sentencing judge found that, at the time of the assault, the appellant had been unhappy and drinking to excess. He was under the influence of alcohol when he committed the offence. He had no criminal record of any significance.

7 The sentencing judge found that, since the offence, the appellant had curtailed his drinking. Referees spoke favourably of his character generally, and of his behaviour towards women in particular. The sentencing judge took into account the appellant's plea of guilty, but said that this had come late. She said that there had never been any bar to his pleading guilty to the indecent assault and that the lateness of that plea qualified the extent of any discount to be given in respect of it. In arriving at the sentence of 25 months' imprisonment imposed by her, she commenced from a starting point of 3 1/2 years' imprisonment, which she reduced by 10% on account of the plea of guilty. She then reduced that by a further third so as to give effect to the transitional provisions of sch 1 to the Sentencing Legislation Amendment and Repeal Act 2003 (WA).

8 After referring to a submission to the effect that a suspended sentence of imprisonment should be imposed, and after mentioning that the prosecutor had said that a sentence of that kind would not 'constitute a palpable error', the sentencing judge concluded that it was not appropriate to suspend the term arrived at by her. She said, in that respect, that she had given the most serious consideration to that option and that she had taken into account the seven year period that had passed between the offence and the sentencing of the appellant. However, she said that this last factor did not carry 'enormous weight'.

9 There are three grounds of appeal. The first is that the sentencing judge erred in failing to take 'proper' account of matters relevant to the circumstances of the offence and the offender when deciding not to impose a term of suspended imprisonment. The second is that her discretion miscarried when she failed to allow a sufficient discount for the appellant's plea of guilty, such that the sentence imposed was manifestly excessive. The third is that the sentence imposed was manifestly excessive for the reason that it had been appropriate for the sentencing judge to impose a sentence of suspended imprisonment, with the consequence that she was required to impose a sentence of that kind: s 39(3) of the Sentencing Act 1995 (WA).

10 The particulars to the first of those grounds assert that her honour failed to take into account a number of matters. These were that the initial meeting between the appellant and the complainant occurred by chance, the lack of any planning, the absence of any striking of the complainant by the appellant, the fact that the appellant eventually desisted from the offending and left, the fact that the appellant neither threatened nor injured the complainant and the fact that the appellant was not armed with a weapon.

11 Counsel for the appellant acknowledged that the sentencing judge considered all of these matters when considering the length of the prison term to be imposed. However, he contended that she failed to consider all of them again when considering whether or not to impose a suspended sentence. The sole basis for this submission is that she did not, again, mention them all. However, she was not obliged again to mention each of these matters separately. It is apparent from her sentencing remarks that the sentencing judge was conscious of all of the matters relied upon when considering the question whether or not to suspend the sentence of imprisonment imposed. She plainly had in mind that the offence was committed under the influence of alcohol, that there was no planning (the appellant's deceit concerning the complainant's boyfriend indicates only that the appellant wanted to be rid of him before going to the complainant's room in the belief that she was attracted to him), that the appellant did not strike, threaten or injure the complainant, and that he eventually desisted from his offending behaviour. All of these matters had been mentioned by her earlier. They were intrinsic circumstances of the offence with which she was dealing. There is no basis for the suggestion that she did not have them in mind when considering whether or not to suspend the term of imprisonment. She said that she had given 'the most serious consideration' to that option, particularly given the attitude of the prosecution. She was also aware of the fact that the initial meeting between the appellant and the victim was by chance, although this, in any event, seems to me to provide no basis for lessening the seriousness of the offence.

12 As to ground 2, the sentencing judge mentioned that the appellant had pleaded guilty to the count of unlawful and indecent assault on the day the matter, together with the count of burglary, was listed for trial. She said that negotiations had taken place which saw the State agree to discontinue the burglary charge. She went on to say that she accepted that, very early in the matter's history, a solicitor representing the appellant had mentioned the possibility of such a compromise during a conversation with the police prosecutor, but that the issue did not then go any further, because of disinterest by the police prosecutor. However, as I have mentioned, she said that there had never been any bar to the appellant pleading guilty to the charge of indecent assault.

13 In my opinion, no error has been shown. It was not suggested on behalf of the appellant that there was any link between the burglary charge and that of indecent assault such as to justify the appellant's refusal to plead guilty to the latter charge merely because the State would not withdraw the former charge. The appellant could consequently have saved the complainant the trauma of anticipating that she would have to re-live the events that had happened in the course of giving evidence.

14 The rationale underpinning a reduction in sentence on account of a plea of guilty is that it reflects remorse, an acceptance of responsibility and a willingness to facilitate the course of justice: Cameron v The Queen (2002) 209 CLR 339 [11] (Gaudron, Gummow and Callinan JJ). The remorse shown by the appellant is significantly lessened by the fact that, for some time, he was prepared to put the complainant through the trauma to which I have referred. So, too, is his acceptance of responsibility for his sexual offending. His willingness to facilitate the course of justice is also lessened by his substantial delay in doing so. While his refusal to plead guilty to the charge of burglary is readily understandable, I have said that his counsel does not suggest that his inability to plead guilty to that charge should reasonably have led to a refusal to plead guilty to the charge of indecent assault. In all of these circumstances, I am not persuaded that the reduction of only 10% reveals any error in the exercise of the sentencing judge's discretion.

15 That leaves the third ground, which was added by amendment made during the course of the hearing of the appeal.

16 The maximum penalty for an offence of indecent assault is a term of 5 years' imprisonment. In my opinion, the appellant's offending behaviour was a serious example of this kind of offence. It was rightly characterised as being violent, frightening and sustained. Even accepting, as the sentencing judge appears to have done, that the appellant was given some encouragement by his victim (and it is by no means clear what form the 'tickling up' asserted by him took), that encouragement did not encompass an invitation to return, alone, to her motel room. Certainly, there was nothing which should have led the appellant to conclude that he was free to lie on top of her. In any event, it must have been immediately apparent to the appellant that his attentions were unwelcome. Instead of desisting when his victim screamed, the appellant put his hand over her mouth on more than one occasion in order to stop her from screaming and repeatedly persisted in his attempts to touch her genital area, notwithstanding her struggles to get free of him. These events would necessarily have terrified the complainant and left her feeling violated and humiliated.

17 We have not been referred to any case that lends firm support to the imposition of a suspended sentence of imprisonment in a case as serious as this. My review of the cases (which primarily concern assaults on young girls: see Ferry v The Queen [2003] WASCA 207 [81] - [85] and the cases there cited) reveals a wide range of penalties for offences of this kind. That is hardly surprising, given the infinite range of possible facts.

This case was, as I have said, a serious example of this type of offence. Given the maximum penalty provided for, the upper level of the offending behaviour and the need for deterrence, it was not appropriate to impose a sentence of suspended imprisonment.

19 McLURE JA: I agree with the reasons of Steytler P.

Legislation Amendment and Repeal Act 2003

GALLOP -v- THE STATE OF WESTERN AUSTRALIA [2007] WASCA 243 (9 November 2007)

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GALLOP -v- THE STATE OF WESTERN AUSTRALIA [2007] WASCA 243 (9 November 2007)

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