Criminal law - Appeal against conviction - Child sexual offence - Where appellant and child in ongoing, consensual relationship that is supported by their respective families - Guilty plea - Whether refusal of permanent stay application erroneous - Stay application in effect a challenge to prosecutorial discretion

Appeal against sentence - Whether pregnancy of child an aggravating factor - Need for rehabilitation and personal deterrence - General deterrence - Spent conviction - Manifest excess

Acts Amendment (Lesbian and Gay Law Reform) Act 2002 (WA)

Community Protection (Offender Reporting) Act 2004 (WA)

Criminal Appeals Act 2004 (WA), s 23, s 30

Criminal Procedure Act 2004 (WA), s 90

Sentencing Act 1995 (WA), s 39(2), s 45(1), s 46(a)

Supreme Court Act 1935 (WA), s 58

Allbeury v Corruption and Crime Commission [2012] WASCA 84; (2012) 42 WAR 425

Bailey v Laczko (1978) 20 ALR 658

Bartlett v Commonwealth Director of Public Prosecutions [2013] WASCA 223

Brand v The State of Western Australia [2011] WASCA 269

Brewer v Bayens (2002) 26 WAR 510

CJ v The State of Western Australia [2009] WASCA 42

Deering v The State of Western Australia [2007] WASCA 212

Jago v District Court of New South Wales [1989] HCA 46; (1989) 168 CLR 23

Likiardopoulos v The Queen [2012] HCA 37; (2012) 247 CLR 265

Maxwell v The Queen [1996] HCA 46; (1996) 184 CLR 501

Mikulic v The State of Western Australia [2011] WASCA 14

Muir v The Queen [2006] WASCA 85

R v Glennon [1992] HCA 16; (1992) 173 CLR 592

R v Tognini [2000] WASCA 31; (2000) 22 WAR 291

Riggall v The State of Western Australia [2008] WASCA 69

Simon v The State of Western Australia [2009] WASCA 10

Sunfly v The State of Western Australia [2009] WASCA 22

The State of Western Australia v GNR [2014] WADC 45

The State of Western Australia v SJH [2010] WASCA 40

Vagh v The State of Western Australia [2007] WASCA 17

Walden v Hensler [1987] HCA 54; (1987) 163 CLR 561

1 McLURE P: This is an appeal against conviction and an appeal against sentence.

2 On 16 April 2014 the appellant was convicted, on his own plea of guilty, of one count in indictment 1554 of 2013 (Indictment) charging that on a date unknown between 9 March 2012 and 11 May 2012 the appellant sexually penetrated 'H', a child aged between 13 and 16 years, contrary to s 321(2) of the Criminal Code (WA) (Code) (the offence).

3 The offence came to light after H gave birth to a child, in hospital, on 1 January 2013 and nominated the appellant as the father of the child. The police investigation was initiated by the Department of Child Protection as a result of the hospital's mandatory report of the birth. There was no complaint by H or her family.

4 The relevant facts are as follows. At the time of the offence, the appellant was aged 18 and H was either 13 or 14 years old. At the time of the birth of the child, which was two months premature, H was aged 14.

5 The appellant and H met by chance in 2011 when H was aged 13. She told the appellant she was 18 years old. About one month after their first meeting, the appellant and H commenced a sexual relationship. Shortly thereafter (and before the commission of the charged offence) the appellant was informed by H's family that she was in fact 13 years old. When he learnt her age, the appellant did not want to continue the relationship. The appellant knew that H was under the age of consent and that it was wrong to have sex with her. H convinced him to do so. She was a voluntary participant in the sexual relationship with the appellant, there being no suggestion of the appellant applying undue or inappropriate pressure, coercion or influence on H.

6 The offence occurred when the appellant and H were living in Geraldton with H's family. After becoming pregnant, H moved to Perth to live with the appellant and his parents. At all material times the appellant and H were in a committed relationship which was supported by the appellant's and H's parents.

7 The appellant cooperated with investigating police and made full admissions. On 12 December 2013 the appellant entered a guilty plea to the charge in the Magistrates Court but, at the request of his counsel, a conviction was not recorded.

8 Prior to entering the plea of guilty that resulted in the appellant's conviction on 16 April 2014, he applied under s 90 of the Criminal Procedure Act 2004 (WA) (CPA) to permanently stay the prosecution of the charge.

9 Section 90(1) of the CPA relevantly provides that a superior court in which an accused is indicted on a charge may at any time order that the prosecution of the charge be stayed permanently, if it is in the interests of justice to do so.

10 On 9 April 2014, Goetze DCJ published written reasons dismissing the stay application: The State of Western Australia v GNR [2014] WADC 45.

11 On 16 April 2014 the appellant was sentenced by Goetze DCJ to a 12-month community based order (CBO) with a 50-hour community service requirement and a supervision requirement.

12 The sole ground of appeal claims that Goetze DCJ 'erred in law by failing to properly consider all the circumstances of the case and consequently failed to properly exercise his discretion in considering whether to permanently stay the indictment pursuant to s 90(1)' of the CPA. I granted leave to appeal.

13 At the hearing of the appeal, the appellant's counsel (who did not sign the appellant's case) declined to make oral submissions in support of the appeal against conviction, resting entirely on the written submissions in the appellant's case.

14 Implicit in the appellant's written submissions is acceptance of the legal proposition that the sole source of his entitlement to appeal is s 23(1)(a) of the Criminal Appeals Act 2004 (WA) (CAA), which provides that an offender convicted of an offence on indictment may appeal against the conviction. This position is consistent with authority: Bartlett v Commonwealth Director of Public Prosecutions [2013] WASCA 223; Allbeury v Corruption and Crime Commission [2012] WASCA 84; (2012) 42 WAR 425; Muir v The Queen [2006] WASCA 85.

15 The appellant also accepts that his appeal against conviction must fail unless he establishes one or more of the grounds in CAA, s 30(3). It was put on behalf of the appellant first that if he establishes the primary judge erred in the exercise of the discretion in s 90 of the CPA and a permanent stay was in the interests of justice, then there was a wrong decision on a question of law and/or a miscarriage of justice for the purposes of CAA, s 30(3)(b) and (c); and second, the conviction should be set aside because it was a consequence of the erroneous refusal to order a permanent stay. The appellant seeks orders that the conviction be set aside and the Indictment permanently stayed.

16 The respondent advances the following propositions. First, there is no appeal from a refusal to grant a stay under s 90 of the CPA.

17 Second, the appellant's rights of appeal are exhaustively stated in CAA, s 23 and the permissible grounds of appeal against his conviction are exhaustively stated in CAA, s 30(3).

18 Third, although the Court of Appeal has the power to set aside a conviction, it does not have the power to order that the prosecution of the charge in the Indictment be permanently stayed. This contention is based on the following propositions: (i) there is no such power in CAA, s 30(5) which lists this court's powers in the event of a successful appeal against conviction; (ii) s 58 of the Supreme Court Act 1935 (WA) does not invest this court with power or jurisdiction to grant a permanent stay; (iii) there is no arguable abuse of process that would enliven any inherent jurisdiction to regulate the proceedings in the District Court; (iv) s 90 of the CPA is the only source of power to order a permanent stay in the absence of an abuse of process; and (v) the power in s 90 is given only to the court to which an accused is committed or in which an accused is indicted.

19 Fourth, the appeal is disguised as an appeal against conviction when it is, in substance, an appeal from a refusal to permanently stay the Indictment.

20 Fifth, the appellant cannot succeed because, having entered a plea of guilty to the charge, there is no recognised ground on which the conviction could be set aside on appeal. On that general subject, see Mikulic v The State of Western Australia [2011] WASCA 14 [22] - [29].

21 Finally, and in any event, the decision of the primary judge to refuse the stay was correct.

22 The appellant's appeal against his conviction must fail at the first hurdle unless it can be shown that the primary judge's decision refusing the stay was erroneous in accordance with the established principles governing appeals from discretionary judgments: R v Glennon [1992] HCA 16; (1992) 173 CLR 592, 600. The established principles are those in House v The King [1936] HCA 40; (1936) 55 CLR 499, 504 - 505.

23 After setting out the facts, the submissions of the parties and the law, the primary judge stated his conclusion as follows:

The prosecution and continuation of the indictment cannot in any sense be said to be an abuse of process. The power to grant a stay is not however, solely determined by the need to identify an abuse of process. The power to grant a stay should be used sparingly and with the upmost of caution.

Notwithstanding that the criteria for granting a stay may be varied, the interests of justice in this matter are such that the stay should not be granted. That there will be mandatory reporting requirements is a matter personal to [the appellant], as is the stain of conviction, which will necessarily reflect upon him and to a certain extent, his family. However, such matters are the consequences of conviction in respect of a serious offence and do not outweigh the requirement of proceeding to conviction. The reporting requirements [in the Community Protection (Offender Reporting) Act 2004 (WA) (Reporting Act)] do not form any part of the sentence to be imposed.

If, on the hearing of this application, regard were to be had to the reporting requirements then, this would circumvent the purpose of those legislative requirements. Even if regard were had to the reporting requirements, then, it cannot be said that circumventing the reporting requirements created by the [Reporting Act] is in the interests of justice. As previously noted, any reform of these requirements is not a matter for a court. In any event, the reporting requirements themselves do not, without more, outweigh the requirement of proceeding to conviction. Fairness to the DPP, on behalf of the State of Western Australia and its community, requires the continuation of the indictment, the disposition of a charge alleging a serious offence and a conviction in respect of such an offence in order to maintain public confidence in the administration of justice.

...

In a matter in which there is no suggested abuse of process, then any application to stay an indictment on the basis of hardship to an offender following conviction arguably amounts to no more than asking a judge to substitute his or her own view of the prosecutorial discretion vested in the DPP. Care must be taken to not stray beyond a proper judicial role. To allow such an application to succeed would be to so stray [45] - [47], [49].

The appellant submits, in effect, that the primary judge failed to take into account:

(a) the stigma to the appellant associated with a conviction for a serious sexual offence;

(b) the mandatory consequences that flow from the fact that the appellant would be a reportable offender under the Reporting Act;

(d) the stigma that the child may suffer as a consequence of the fact that his father would be deemed not only to be a serious sexual offender, but from the fact that the child was born to such an offender.

24 There is no merit in the appellant's claim that the primary judge failed to take into account the matters in (a) - (d). They are expressly referred to in his reasons. The real gravamen of the appellant's complaint is the weight given to those considerations by the primary judge. Weighting issues do not ordinarily give rise to an appealable error from a discretionary judgment: Vagh v The State of Western Australia [2007] WASCA 17 [76]. They do not in this case.

25 As there is no challenge to the correctness of the primary judge's statement or application of the law in s 90 of the CPA, this is not an appropriate occasion for this court to volunteer its views concerning the scope of the expression 'interests of justice' in s 90; whether and if so in what circumstances an exercise of prosecutorial discretion could warrant a permanent stay (see Likiardopoulos v The Queen [2012] HCA 37; (2012) 247 CLR 265 [37]); whether the consequences under the Reporting Act are an irrelevant consideration; and whether there is a necessary conceptual connection between the exceptional circumstances that would justify a permanent stay in the interests of justice on the one hand, and a miscarriage of justice for the purposes of CAA, s 30(3)(c) on the other. Neither party addressed these issues in their written or oral submissions.

26 It is sufficient for present purposes to say that the primary judge was correct to refuse the application for a permanent stay. There is no arguable abuse of, or unfairness in, any of the processes or procedures in the administration of justice over which the courts have control. The appellant's claims of unfairness and injustice flow directly and solely from the scope and effect of the laws passed by the Parliament of Western Australia, which it is the duty of the courts to uphold and enforce.

27 When stripped to its essentials, the stay application is in effect a challenge to the exercise of the prosecutorial discretion to charge the appellant. The dangers of courts intruding into that area of executive function have been identified by the High Court: Maxwell v The Queen [1996] HCA 46; (1996) 184 CLR 501, 534; Jago v District Court of New South Wales [1989] HCA 46; (1989) 168 CLR 23, 38; Likiardopoulos [37].

28 The conviction appeal can be disposed of without determining all of the legal propositions for which the respondent contends. Indeed, it is undesirable to do so in the absence of an active contradictor. For present purposes it is sufficient to note the following. The respondent's first and fourth contentions are apt to cause confusion. Whilst it is correct to say that any appeal must be against a conviction, an offender can challenge an interlocutory decision on either of the grounds in s 30(3)(b) and (c), at least where the conviction is entered after trial. That is clear from the reasoning in Glennon. Whether and in what circumstance an erroneous interlocutory decision refusing a permanent stay may be the basis of a successful appeal against a conviction resulting from a guilty plea and whether this court has power to order a permanent stay should be left to another day.

30 There are five grounds of appeal, being that: (1) the sentencing judge erred in finding that the birth of the child was an aggravating factor; (2) the sentencing judge erred in finding there was a need to impose a sentence that encouraged the appellant's rehabilitation; (3) the sentencing judge erred in concluding that general deterrence was a significant sentencing consideration; (4) the sentencing judge erred in failing to make a spent conviction order; and (5) the sentence is manifestly excessive.

Also aggravating the offending is the fact that as a 14-year-old, [H] then gave birth to your child. And the reality is that at 14 she was still a child and it's not usual for 14-year-old girls to do that. It takes away from them their teenage years (ts 81).

32 It was accepted on behalf of the appellant that if a child is born to a complainant as a result of the commission of a sexual offence, that would ordinarily be an aggravating factor. The appellant contends it was not aggravating in this case because the sexual acts were consensual and committed during a relationship encouraged by H, that both the appellant and H remained committed to the relationship, and that the relationship was supported by their parents.

33 Those factors do not, individually or collectively, undermine the correctness of the sentencing judge's conclusion. The submission reflects a misunderstanding of the purpose and policy underpinning s 321 of the Code. As discussed below, the purpose of s 321 is protective of the welfare and best interests of children under 16. On any view, it was not in the best interests of H to bear a child when she herself was still a child. Nor is it in an infant's best interests to be mothered by a child. The fact that the appellant's sexual relationship with H was supported by both their parents cannot alter the objective seriousness of the offence. At its highest, parental support may cushion the inevitable hardships and challenges facing both children and may reduce an offender's culpability. I would dismiss ground 1.

34 The notions of personal deterrence and rehabilitation are linked. On the subject of personal deterrence the sentencing judge said:

You and the complainant were at all material times in a relationship and that relationship continues. You're now 20, she's now 16. So it's impossible, as a matter of fact, for you to, with her at least, commit any further offending of this kind. And because of the continuing relationship, the two of you now have a baby, there's really a need in terms of personal deterrence to exercise some mercy (ts 80).

35 On the subject of rehabilitation, the sentencing judge said:

Now, it's also important to have regard to rehabilitation by way of mitigation. That isn't pursuant to any counselling or help that you've had or that I've been informed of. The reality is that in terms of your ongoing relationship the offending simply can't happen now as a matter of fact or law because [H] has turned 16 (ts 81).

36 The subject was referred to again in the context of the imposition of a supervision requirement. The sentencing judge said:

[T]he idea about that is to allow you to be monitored in a regular way in the community and to receive regular counselling to either help you rehabilitate yourself or to ensure that you comply with any direction that I now make (ts 84).

37 It is apparent from the sentencing judge's reasons as a whole that he regarded the appellant's rehabilitation as partial, not complete. That was linked with a continuing but reduced need for personal deterrence which was underscored by the fact that the appellant knew at the time of the offence that H was under the age of consent and what he was doing was wrong. The fact that he could no longer commit the same offence with H is not determinative, having regard to the fluidity of modern relationships. I would dismiss ground 2.

38 The appellant contends that the circumstances of this case were so unusual that normal considerations of general deterrence did not apply and that in any event, the appellant was not an appropriate vehicle for general deterrence. Neither of those propositions can be sustained.

39 For the reasons discussed below, the offence committed by the appellant is neither trivial nor technical. The fact that he commenced and continued a sexual relationship with a child under the age of consent goes to the heart of the offence. That he continued the sexual relationship when he knew she was under the age of consent is aggravating.

40 Parental support or condonation does not reduce the objective seriousness of the offence nor does it eliminate or reduce the need to give weight to general deterrence. It may lessen an offender's culpability although in this case the appellant knew his conduct to be wrongful. I would dismiss ground 3.

41 At the hearing of the appeal the appellant's counsel conceded that the conditions enlivening the power in s 45(1) of the Sentencing Act 1995 (WA) to make a spent conviction order were not satisfied. The concession was correctly made.

42 Section 45(1) of the Sentencing Act provides:

Under section 39(2), a court sentencing an offender is not to make a spent conviction order unless -

(a) it considers that the offender is unlikely to commit such an offence again; and

(b) having regard to -

(i) the fact that the offence is trivial; or

(ii) the previous good character of the offender,

it considers the offender should be relieved immediately of the adverse effect that the conviction might have on the offender.

43 The penalties in s 39(2), in ascending order of seriousness, are (a) with or without making a spent conviction order, impose no sentence; (b) with or without making a spent conviction order, impose a conditional release order; (c) with or without making a spent conviction order, impose a fine; (d) with or without making a spent conviction order, impose a CBO; (e) impose an intensive supervision order (ISO); (f) impose suspended imprisonment; (g) impose conditional suspended imprisonment (CSI); and (h) impose a term of imprisonment. Thus a spent conviction order cannot be made with an ISO, suspended imprisonment, CSI or a term of imprisonment.

44 If the preconditions in s 45(1)(a) and (b) are satisfied, the court has a discretion, not a duty, to make a spent conviction order: R v Tognini [2000] WASCA 31; (2000) 22 WAR 291 [24]; Brewer v Bayens (2002) 26 WAR 510 [11], [16].

45 The precondition in s 45(1)(b) cannot be satisfied unless either the offence is trivial or the offender is of previous good character.

46 The appellant was not a person of previous good character for the purpose of s 45(1)(b)(ii). He had multiple convictions (10) for aggravated burglary and other convictions for burglary, stealing, receiving and damaging property.

47 The sentencing judge held that the offence was not trivial and that, in any event, the appellant should not be relieved immediately of the adverse effect that the conviction might have on him.

48 No attention was given in the appeal to the meaning of the expression 'the offence is trivial' in s 45(1)(b)(i) and the different language used in s 46(a) of the Sentencing Act. Under s 46, a court sentencing an offender may impose no sentence if it considers that, inter alia, 'the circumstances of the offence are trivial or technical'.

49 The term 'trivial' in its natural and ordinary usage means of little importance, trifling, insignificant. That focuses attention on the grade or level of seriousness. In sentencing for criminal offences, there is a well-known and understood distinction between the seriousness of the offence and the level of seriousness of the circumstances of the offence. The former focuses on the statutory indicia of the legislative intent as to the gravity or seriousness of the offence. The latter brings to account all the subjective and objective circumstances of the particular offence committed by the offender.

50 If the focus is directed to the statutory context, it cannot be said that an offence against s 321(2) of the Code is trivial. The offence is one of strict liability; the State does not have to prove knowledge, intention or any other fault element. A very narrow mistake type defence applies to the charge. If the child is not under the care, supervision, or authority of the accused, it is a defence to a charge under s 321(2) to prove that the accused person (a) believed on reasonable grounds that the child was of or over the age of 16 years and (b) was not more than three years older than the child: s 321(9). The defence in this form was inserted by the Acts Amendment (Lesbian and Gay Law Reform) Act 2002 (WA) (2002 Amendment Act). It is clear from the legislative record that the intention is to confine the defence to cases where the mistaken accused is of the same age group as the victim. Prior to the 2002 Amendment Act the mistake defence in s 321(9) was available to all accused regardless of age disparity.

51 The maximum penalty for a breach of s 321(2) also underscores its seriousness. Where the child is under the care, supervision, or authority of the offender, the maximum is 20 years. Otherwise, where the offender is under the age of 18 years the maximum penalty is 7 years and where the offender is 18 years and over, the maximum is 14 years' imprisonment.

52 The purpose of s 321 is to protect and advance the welfare of children under 16. It achieves that by, in effect, depriving them of the legal capacity to consent to sexual conduct. The legislature has made a judgment that children under 16 are not in a position to give true or real consent to the conduct which it has criminalised in s 321.

53 Focussing on the statutory context, Wheeler JA in Riggall v The State of Western Australia [2008] WASCA 69 was of the view that s 321 of the Code was not a trivial offence. She said:

In interpreting par (a) of s 46, the first matter to note is that the legislative focus is not on 'the offence', but upon 'the circumstances of the offence'. The distinction may be important. Had the legislature directed attention to 'the offence', it would, in my view, be difficult to suggest that any offence could be regarded as trivial or technical, where the legislature had indicated by the provision of a severe maximum penalty, that the offence was an important one for the protection and welfare of the community [54].

54 The statutory text, context and purpose drives the interpretation of all statutory expressions. Relevant authorities on the meaning of the expression 'the offence is trivial', or similar, highlight the importance of statutory context: Walden v Hensler [1987] HCA 54; (1987) 163 CLR 561, 577, 595; Bailey v Laczko (1978) 20 ALR 658.

55 I agree with Wheeler JA that the meaning of the expression 'the offence is trivial' in s 45(1)(b)(i) differs from 'the circumstances of the offence are trivial' in s 46(a) of the Sentencing Act. Although the primary focus in s 45(1)(b)(i) is on the type or nature of the offence in question, that does not foreclose the possibility that a subset of circumstances (such as the material facts establishing guilt) may be taken into account in determining whether the offence is trivial. However, it is unnecessary to determine that issue which was not addressed by the parties. Even if regard is had to all the circumstances of the appellant's offence, it cannot be characterised as trivial. I would dismiss ground 4.

56 This court can only intervene if the sentencing judge made an express or implied material error of fact or law. A claim of manifest excess relies on the implication of error. The sentence must be shown to be unreasonable or unjust, it being outside the range of a sound sentencing discretion.

57 In determining whether an implied error has been made, regard is had to the maximum sentence for the offence, the standards of sentencing customarily imposed, the place which the criminal conduct occupies on the scale of seriousness and the personal circumstances of the offender.

58 The standards of sentencing customarily imposed do not establish the range of a sound sentencing discretion. Rather, they provide a yardstick or reference point for ensuring broad consistency in sentencing, bearing in mind the scope for significant variations in relevant sentencing factors.

59 A review of the sentences customarily imposed for a breach of s 321 of the Code reveals that ordinarily a sentence of imprisonment is imposed: Simon v The State of Western Australia [2009] WASCA 10 (and the cases reviewed therein); The State of Western Australia v SJH [2010] WASCA 40; CJ v The State of Western Australia [2009] WASCA 42; Sunfly v The State of Western Australia [2009] WASCA 22.

60 The only recent case considered by this court in which a sentence of imprisonment was not imposed is Brand v The State of Western Australia [2011] WASCA 269. In that case the 21-year-old appellant entered early pleas of guilty to eight counts of sexually penetrating a 15-year-old complainant. The appellant believed the complainant when

she told him she was 17. There were no predatory aspects to the offending in which the complainant was a willing participant. An 18-month ISO with a programme requirement was upheld on appeal.

61 The appellant contends the wrong type of sentence was imposed and that a fine was appropriate in all the circumstances. The submission appears to be based on a view that the public policy underpinning s 321 is wholly informed by moral standards, so that a continuing relationship and parental approval addresses the mischief to which the section is directed. That reflects a misunderstanding of the public policy and purpose underlying s 321. Its purpose is not only to protect children from abuse by sexual predators but also to protect children from themselves: Deering v The State of Western Australia [2007] WASCA 212 [17]; Sunfly [15]. Thus, the fact that the offence occurred during the course of a relationship (sexual and otherwise) which commenced when H was 13, is not significantly mitigatory. However, the continuing relationship and the birth of their child calls for a merciful exercise of the sentencing discretion.

62 The appellant's fall-back position is that the supervision requirement of the CBO is outside the range of a sound sentencing discretion. That submission overlaps with the appellant's rejected claims the subject of grounds 2 and 3 relating to personal and general deterrence and rehabilitation. It was open to the sentencing judge to impose a supervision requirement in this case. I would dismiss ground 5.

63 For these reasons, I would dismiss the appeal against conviction and the appeal against sentence.