Sentencing Act 1995 (WA), s 15

R v Clarke [2000] WASCA 229

Ford v The Queen (1998) 103 A Crim R 501

Joseph v The Queen, unreported; CCA SCt of WA; Library No 920066; 4 February 1992

Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665

Miles v The Queen (1997) 17 WAR 518

R v Bekink [1999] WASCA 160; (1999) 107 A Crim R 415

R v Boyle (1987) 34 A Crim R 202

R v Coleman (1990) 47 A Crim R 306

R v Richards [1999] WASCA 105

R v Stewart (1994) 72 A Crim R 17

R v Tsiaras [1996] VicRp 26; [1996] 1 VR 398

R v Rowe (1991) 52 A Crim R 196

Scott v Cameron (1980) 26 SASR 321

Symonds v The Queen, unreported; CCA SCt of WA; Library No 980616; 28 October 1998

Webb v O'Sullivan [1952] SASR 65

Yardley v Betts (1979) 22 SASR 108

1 MURRAY J: In this matter I have had the advantage of reading in draft the reasons for decision of Wheeler with which I am in general agreement. I am content in this case to grant leave to appeal, but I too would dismiss the appeal against sentence.

2 There are some aspects of the case upon which I wish to add some observations of my own.

3 The first is that at the hearing of the appeal the applicant sought to tender an affidavit sworn by his mother which was concerned to put more information before the Court about the applicant's particular disabilities and that the impact of the convictions upon the applicant's membership of the English karate team which had been feared at the time when the sentence was passed, has now come to pass. As a convicted person, the applicant will not be allowed to continue to represent his country in that sport. There is a reference to the impact of imprisonment upon the applicant, having regard to the fact that his grandmother, to whom he is very close, has been diagnosed with Alzheimer's disease. Mrs Hopper expresses the concern that the applicant's grandmother may deteriorate to the point where she will no longer recognise him by the time he secures his release from prison on parole. Mrs Hopper speaks also of the disruption to the family occasioned by the fact that the applicant will serve his sentence of imprisonment in prison here rather than in England, his country of origin.

4 The applicant also sought to tender an affidavit by his solicitor which annexed a psychological report compiled jointly by three psychologists. As Wheeler J has observed, the psychological report is a very complete document and presents, apparently for the first time, a diagnosis of Aspergers disease which I might describe, perhaps inaccurately, as a variant of or condition related to autism. Wheeler J has discussed the document. It seeks to present more complete information about the nature of the applicant's disabilities from which he suffered at the time of his commission of these offences. Various adverse impacts of the applicant's service of a sentence of imprisonment are referred to, all of them undesirable.

5 The document is, in that regard, one which no doubt ought to be placed before the correctional authorities and I have no doubt it should be given careful attention by them in determining the regime appropriate to the applicant's management and maintenance in a prison environment. The other aspect of the report is that it seeks to relate the applicant's particular disability and his consumption of alcohol on the night in question (a rare event for him) to his behaviour during the course of the commission of the offences.

6 In that regard, there is little that I would add to the discussion by Wheeler J. I did not find this material persuasive of the proposition advanced in argument by counsel that the commission of the offences ought to be attributed to a lack of understanding on the part of the applicant that the complainant was not a consenting party to what was occurring, because it was more difficult for the applicant than for a person without his particular disability "to interpret her change in behaviour if she complied with his initial attentions and seemed friendly" (to quote the psychological report). That version of the events, to put it simply, does not sit acceptably with the facts as they were presented to and found by the sentencing Court.

7 This Court has an undoubted power under the Criminal Code (WA), s 697, to receive additional evidence in the form of an affidavit, but its consideration whether or not to do so is made against the background of the fact that, under s 689(3), the Court is reviewing the exercise of discretion involved in the imposition of a sentence, by a rehearing. The discretionary judgment of the sentencing court will be examined to see if it has miscarried so as to require the intervention of the Court of Criminal Appeal, and so new evidence will generally only be receivable insofar as it bears upon that discretionary judgment.

8 The procedure adopted by the Court was discussed at length in Anderson v The Queen (1996) 18 WAR 244. It is sufficient for present purposes to summarise the effect of that decision by saying that the Court will generally receive new evidence on the hearing of the appeal if it sheds new light on matters available to the sentencing judge and relevant to the sentence imposed. It will generally not be received, except in the most exceptional circumstances, where the evidence places new facts before the Court, concerned with subsequent events. Cases like Anderson, which are concerned with the hardship involved in the imposition of a sentence, provide a good example of the distinction. In Anderson's case, the applicant's small son was, when he was sentenced, suffering from acute lymphoblastic leukaemia. It had been in remission, but when sentence was passed it was feared, but not known, that the child had suffered a relapse. Subsequent events showed that to be the case and so the additional evidence was received and it was in part determinative of the appeal.

9 To my mind this is not such a case. The only part of the new evidence which I would receive is so much of the psychological report as more completely diagnoses the condition or disability suffered by the applicant. In that regard, however, it seems to me, as I note it does to Wheeler J, that the information has not the persuasive power to reflect upon the view taken of the condition by the sentencing Judge.

10 Such a condition of illness or disability may impact upon the sentencing process in a number of different ways which have been regularly discussed by this and other courts over the years. In Paparone v The Queen [2000] WASCA 127, with the agreement of Kennedy J, I endeavoured to draw together the propositions which, in my view, emerge out of the various cases dealing with this issue. I cited many of those decided in this Court. To that list may be added the more recent decision of Grubb v The Queen [2002] WASCA 158, per Parker J, with whom Murray and Steytler JJ agreed, at [39], where his Honour relied upon the decision of the NSW Court of Criminal Appeal in R v Engert (1995) 84 A Crim R 67, particularly per Gleeson CJ (as he then was) at 68 - 71.

11 It is sufficient for present purposes if I set out again what I wrote in Paparone at [50] - [53]:

"The following propositions at least would appear to emerge. The presence in the offender of such conditions [of illness or disability] as those referred to above will be relevant to the sentencing process in a number of different ways and for different reasons where there is a causal connection or link of a relevant kind established between the condition of the offender and the commission of the crimes for which he or she is to be sentenced. Generally speaking, where that is the case, the effect of the condition or disorder will be mitigatory, but that will not always be the case and indeed in some circumstances the effect may be one of aggravation, eg, where an intractable condition related to the offending behaviour leads to the conclusion that the offender will represent in the future a continuing danger to the community by reason of the commission of further offences. Such a condition may have an impact upon the type of disposition chosen and its severity.

Where it is advanced that an offender suffers from a condition or disability which should mitigate punishment, then, as I have mentioned, it will be necessary to demonstrate a causal relationship between the offending and the condition, as I put it in R v CW [2000] WASCA 81, "at least in the sense that as a result of the intellectual deficit the offender was not inhibited from committing the offence or offences in question." In such a case the mitigation may be found in the conclusion that the offender's moral culpability, as opposed to his or her criminal responsibility, has been lessened so as to reduce the seriousness of the offending and the need for a denunciatory sentence.

Alternatively, or perhaps in addition to that factor, the offence and the offender may be seen to provide inappropriate vehicles for general and particular deterrence to be given their full weight. The extent to which such factors should be given weight will be a matter of degree depending upon the particular circumstances of the case in point, but it will often be the case, as Kennedy J put it in R v Dalgety [2000] WASCA 10, that such considerations of deterrence will continue to operate "sensibly moderated". Only in an extreme case will the relevance of such considerations be eliminated entirely.

For completeness I should add that, quite apart from the situation where there is a causal link or connection between the offending and the condition in question and whether or not that is the case, if the offender's condition is such that a sentence which would otherwise be proportionate to the criminality involved may have a more severe impact upon the particular offender than upon others, then the court will be led in mercy, as well as by reason of the application of the general principles of sentencing, to moderate the punishment or choose an alternative disposition."

12 It is apparent from the remarks made by the sentencing Judge that his Honour concluded that the disability suffered by the applicant was not causally related to the offending behaviour in such a way as to reduce the moral culpability of the applicant for the offences committed. In my respectful opinion that conclusion was well open to the sentencing Judge. There was indeed, it seems to me, nothing to indicate that the applicant did honestly believe that he had his victim's consent to what occurred at any stage. There was nothing to indicate that he was confused about the clear indications of non-consent which she gave throughout. There was nothing to suggest that, because of his condition, the applicant could not effectively control his urge to have sexual intercourse with the complainant. In my opinion the case was not established to be one where, because of the causal relationship between the commission of the offences and the applicant's condition, the deterrent aspects of the sentencing process should not be given their full weight.

13 The circumstances of the commission of the offences have been discussed by Wheeler J, but I should identify briefly those aspects which seem to me to be indicative of the applicant's unimpaired moral culpability. He was convicted of an act of digital penetration of the complainant's vagina without her consent, an indecent assault upon her by sucking her nipple and an act of penile penetration of the complainant's anus without her consent.

14 Having met the complainant and spent some time with her at an hotel, the question arose, how she was to get home. She left the hotel with the applicant to find a taxi rank. It was as they were walking and chatting that the offences commenced. The act of digital penetration of her vagina occurred contemporaneously with the applicant's attempts to kiss her. He was forceful about it, although she rejected his advances by telling him to stop. To get his fingers out of her vagina she sat down, and told him to go away. She was upset. It was then that he knelt in front of her, put his hand inside her top and brassiere, removed a breast and commenced to suck on the nipple, despite the fact that she pushed him away. She got up and walked off. He followed. He asked her if she wanted to have sex with him. She said no. She was upset and crying. She walked to a ledge on the side of a building and leant on it with her hands, for support.

15 The applicant came up behind her and simply pulled down her pants and underwear. He forced his erect penis between her legs. She was crying and saying no. He was lifting her off the ground in his attempts to force his penis into her vagina. He had one of her arms in a lock behind her back. She couldn't move, but with her other arm she was trying to push him away. She kept saying, "Stop", "Don't", and, "Get out of me", but he kept saying, "It's all right".

16 In short, despite her very clear distress and efforts to resist him, he continued to thrust his erect penis between her legs and against her vagina. It was during this incident that, although it seems he did not penetrate her vagina, he did penetrate her anus at one point. Twice during this incident he stopped, pulled back a little and asked her if she would suck his penis. She refused and he resumed his attack upon her. Although she was unsure of the time, she thought that the attack lasted about five minutes until, probably as a result of her struggles, he pushed her to the ground where she was in a half sitting position, crying. Only then did the applicant hold out his hand to help her up. She rejected this assistance, stood up and commenced to walk away. It was then she saw him running back towards the hotel.

17 This was not a case where any confusion was possible. Nor, it seems, did the applicant at any time suggest that he was confused or thought the complainant was consenting. The sentencing Judge found that the applicant "was determined to pursue his goals even though it must have been absolutely abundantly clear to him that the complainant was resisting his attack." In my opinion, that finding was well justified, and indeed a principal matter relied upon in mitigation was that this was entirely uncharacteristic behaviour on the part of the applicant for which he was accepted to be abjectly contrite. His remorse was clear from the outset when he spoke with investigating police officers, to whom he offered his full cooperation, and when, at the earliest opportunity, he entered the pleas of guilty by which he accepted his responsibility for the offences committed and saved the already considerably traumatised complainant (as revealed by the victim impact statement) the further trauma of a trial.

18 These matters, together with the applicant's hitherto unblemished record and previously "blameless and productive life", as it was described by the sentencing Judge, were accepted by his Honour. In addition, his Honour did not, of course, overlook the fact that the applicant had returned to WA from England voluntarily to submit himself to the punishment of the court. These were all matters to which, in my view, his Honour gave appropriate weight and I respectfully agree with Wheeler J that so much is established by having regard to the lenient terms of 4 years imprisonment imposed for each of the sexual penetrations and 2 years imprisonment imposed for the indecent assault, all to be served concurrently, with eligibility for parole.

19 I can see nothing in the case to suggest that the exercise of discretion not to suspend service of the aggregate term miscarried. It is, of course, the case that unless one can discern any error of principle in that regard then it is inappropriate for this Court to interfere with that decision: Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321.

20 A complaint is made in the grounds of application that the Judge erred in failing to treat the applicant's intoxication from alcohol as a significant mitigating factor. I would accept what Malcolm CJ said in R v Juli (1990) 50 A Crim R 31 at 36, that although drunkenness is not normally an excuse or mitigating factor it may become so in particular circumstances. Had it been the case here that the applicant's intoxication, perhaps in combination with his particular disability, rendered him less culpable in the commission of the offences, I could readily understand how that proposition might have application in the circumstances of this case, but as I have already concluded, there is no indication that that was so.

21 It is clear that the sentencing Judge took the view that the intoxication caused when the normally abstemious applicant consumed alcohol to excess, helped to explain his behaviour in committing the offences, but it was nonetheless self-induced intoxication and there was nothing to suggest that the applicant was for any reason unable to understand that if one drinks to excess one may become drunk and one's inhibitions may be suppressed. In my opinion that condition, so created, cannot of itself mitigate punishment. It would merely have the effect upon sentence given to it by his Honour in this case, that it would be proper to regard the commission of the offences as being out of character so as to lessen the need for regard to be had to particular deterrence of the offender in the imposition of the sentence.

22 The applicant's ground 6, added by leave at the hearing of the appeal, complains that the sentencing Judge erred in not making appropriate inquiries to determine whether the applicant's mental and intellectual disabilities could have mitigatory significance in the sentencing of the applicant. It is contended that his Honour ought to have sought a psychological and/or psychiatric report. As Wheeler J has observed, his Honour had before him quite a deal of material of this kind tendered in evidence by the applicant's then counsel and, as I have indicated in expressing my agreement with Wheeler J, the further such report now provided to the Court seems to me to carry the matter little further in relation to sentence.

23 But, however that may be, I wish to comment briefly upon the suggestion that a sentencing judge is under some duty of this kind. The argument relies upon an obiter observation made by Wallwork J (with which the other members of the court, Anderson J and Einfeld AJ, did not expressly concur) in Saveka v The Queen [2001] WASCA 312 at [21]:

"It is my opinion that when a sentencing Judge is given information both by the client's lawyer and a pre-sentence report which reveals that there is a history of some kind of mental disorder in a person whom the Judge is thinking of sentencing to a term of imprisonment, the Judge should make inquiries into the situation to find out whether the mental condition could mitigate the relevant offence or offences."

24 I must say that put baldly in that way that is not a proposition which I would accept. The sentencing phase of criminal proceedings, as much as the trial of the issue of guilt or innocence, is an adversarial process, particularly in a case where the offender is represented by counsel. It seems to me that the judge is entitled to make, in the proper way, such findings of fact as may be appropriate, having regard to the information placed before the court or sought by it. The Sentencing Act 1995 (WA), s 15, provides:

"To decide upon the proper sentence to be imposed, or on imposing an order in addition to sentence, a court sentencing an offender may inform itself in any way it thinks fit."

25 The court is therefore provided with ample power to establish facts relevant to sentence. To suggest, however, that the court is under a duty to make any particular inquiry seems to me to take the matter too far.

26 Finally, I wish to comment briefly on the proposition which emerges from ground 12 which (rather inconsistently with the proposition advanced by ground 6) puts the proposition that, having regard to the Justices Act 1902 (WA) s 100 and s 101 and to s 617A of the Criminal Code (WA), his Honour erred:

"in not regarding the prosecution facts as limited to what was contained in the Crown's statement of material facts and in relying on matters outside the Crown's statement of material facts adversely to the applicant."

27 Again, I would not accept that to take such a course, particularly in the light of s 15 of the Sentencing Act, would involve a sentencing Judge in appellable error. Section 100 of the Justices Act is simply a provision requiring a degree of prosecution disclosure when the case is before the Court of Petty Sessions, unless non-disclosure is excused by the Magistrate. The disclosure is in the form of a statement of the material facts and a record of anything said by the defendant to the police or other investigating authority. The section does not preclude more extensive disclosure if that is what the prosecution wishes to do. After the service of that material, the matter is again brought before the Court of Petty Sessions which may record the defendant's plea of guilty and, without convicting that person, commit the defendant to a superior court for sentence, whereupon the disclosed material is to be forwarded on to the prosecuting authority before that superior court. No doubt the plea would be informed, at least to some degree, by the nature of the material disclosed, but in my opinion these provisions have nothing to do with the information ultimately provided by the prosecution to the sentencing judge on such an expedited committal.

28 The starting point for the provision of such information by the prosecution to a sentencing Judge is s 617A of the Code which simply provides that, "The material facts of the case shall be stated aloud to the court by the Crown." There is nothing in that provision to suggest that it may have an effect which would in any way limit the power of the sentencing court to inform itself as it thinks fit by receiving and acting upon additional information.

29 The point at issue before this court in R v Wong (1995) 16 WAR 219 was whether the Crown was bound by self-serving material, from the point of view of the prisoner, contained in the information provided to the sentencing court or whether the prosecution was permitted to contest the truth of that information and require a prisoner wishing to rely upon it in mitigation to establish the claims so made. At 223-224 the court so held and, in my opinion, the reasoning of Ipp J, with whom Franklyn and Anderson JJ agreed, on this point is consistent with the preservation of an unfettered capacity by both parties to place before the sentencing judge the evidence upon which they wish to rely.

30 It is convenient to refer to my discussion of such matters in Langridge v The Queen (1996) 17 WAR 346 at 381-383. Although I was in the minority on the question principally at issue in that case I was not in dissent on this point. I need not repeat what I then wrote, which I summarised at 397, after referring to facts established necessarily by the verdict of a jury or by a plea of guilty, by saying:

"Other matters of fact may, having regard to the terms of the Criminal Code, s 617A, and [the Sentencing Act s 15], as well as other statutory provisions dealing with the receipt of information for sentencing purposes, be established informally without regard to the rules of evidence, by statements from the bar table and in the form of reports, other documentary material and other recorded information, placed before the court and accepted by it."

31 In my view, the judgments of the High Court in Cheung v The Queen [2001] HCA 67; (2001) 209 CLR 1 are written in terms consistent with that

approach. In the result, therefore, for those reasons in addition to those of Wheeler J, in my opinion this appeal must be dismissed.

32 WHEELER J: On 10 March 2003 the applicant was convicted of the offences of sexual penetration without consent; indecent assault; and sexual penetration without consent. For those offences he received sentences of 4 years' imprisonment; 2 years' imprisonment, concurrent with the first sentence; and 4 years' imprisonment, concurrent with the first sentence. From those sentences he seeks leave to appeal.

33 The applicant pleaded guilty on the fast-track system. The prosecutor introduced the statement of facts with the time honoured words:

"This matter comes before the court by way of committal for sentence. There was no preliminary hearing. I formally tender the papers comprising the Crown brief and the video tape record of interview and incorporate the contents of those into the Crown's statement of material facts".

34 The prosecutor then outlined the facts in the following terms:

"The facts are that on the evening of Friday, 11 October 2002, the offender met the complainant outside Observation City in Scarborough where she agreed to accompany him and his two friends into Northbridge. The offender, complainant and the two male friends spent some time at the Aberdeen Hotel before the complainant decided she wanted to go home. The offender offered to walk her to a taxi rank and they both left the hotel together.

The offender asked the complainant to walk with him for a short time. They walked along Newcastle Street and then turned left into Weld Avenue, Perth. The offender and the complainant stopped briefly, at which time the offender kissed the complainant on the mouth. The offender then placed his hand down the back of the complainant's pants and underwear and thrust his finger into the complainant's vagina. The complainant told him to stop. However, he continued to push his fingers into her vagina, causing her pain. Those are the facts relevant to the indictment charge 1.

In respect of indictment charge 2, the offender and the complainant then walked a little further along Weld Street before the complainant sat on the ground. The offender knelt in front of the complainant and put his hand inside the complainant's top and bra exposing her left breast. The offender then leant forward and sucked on the complainant's left nipple. The complainant pushed him away. The complainant got up from the ground and started to walk back towards Newcastle Street. The offender followed the complainant and asked if she would have sex with him. The complainant said no.

In respect of the third charge, the complainant stopped walking for a brief moment and the offender walked up behind her. The offender pulled the complainant's pants and underwear down and then forced his erect penis between her legs. The offender thrust his penis against the complainant, attempting to enter her vagina. During this action, the offender's penis penetrated the complainant's anus; the offender stated to the complainant, 'It's all right.' The complainant began to cry, saying, 'Don't' and 'Stop.' The anal penetration occurred once only, it was not full penetration and was only momentary.

The offender stopped thrusting his penis and asked the complainant if she would suck it, referring to his penis. The complainant said, 'No.' The offender began to thrust his penis again, attempting to enter the vagina. The complainant was crying and struggling during this time. The offender eventually stopped his action and pushed the complainant, causing her to fall on her right elbow, causing pain and an abrasion. The offender attempted to assist the complainant. However, she refused his offer of help. The offender, realising what he had done, ran from the area, passing the witness who rendered assistance and called police on behalf of the complainant."

35 A medical examination confirmed that the complainant had been sexually assaulted, noting a 1 cm laceration at the entrance to the vagina, and abrasions to the right arm and right leg. On the afternoon of 12 October police interviewed the applicant and he made admissions in a video-taped record of interview. The explanation which he gave during that interview was, in summary: "Once I realised what I was doing, I stopped. I thought, 'what the hell am I doing?'"

36 At the time of entering his plea of guilty the applicant was 19 years of age. It was common ground that he had no previous convictions, and numerous character references described him as a gentle and caring person for whom offences of this kind were entirely out of character. It is clear from the references that he does not normally consume alcohol.

37 It appears that on this occasion, he was on holiday from England in Western Australia with his family, and was due shortly to return to the United Kingdom. In those circumstances, he went out with his cousins, who were approximately the same age, and consumed a quantity of alcohol. Statements made by his cousins suggest that they felt that it was largely their influence which had caused him to consume alcohol on this occasion. The learned sentencing Judge found that the applicant was normally abstemious and that his ingestion of alcohol on this occasion had a great deal of influence upon the events which occurred, so that he acted in a manner which was entirely uncharacteristic.

38 There was also before his Honour a pre-sentence report, a number of other reports from those who had dealings with the applicant in the United Kingdom, a number of references, and the video-taped record of interview. The information which they contain is lengthy and complex, but it may be summarised as follows. The applicant is intellectually disabled, with impairments in cognitive functioning and emotional communication, social and learning difficulties. He has difficulty in interpreting and assimilating verbally presented instructions, low working memory abilities, a reading age of 10 years and 6 months, and is dyslexic. Emotionally, he is described as being very gullible, easily manipulated, shy, immature and anxious, although polite, kind and "desperate to please". He found school a daunting place where he suffered psychological stress, and was bullied. He found it difficult to function in a group setting. He had considerable support from his family, and it is plainly to their credit that he had achieved a significant degree of social functioning.

39 It should be noted that, notwithstanding those deficits and difficulties to which I have referred, he had a girlfriend, a young woman of his own age, from late 1999 until mid-2002. They remained friends and she had provided a reference for him. Although he had not achieved at school, he had for many years found an interest in karate. He was so talented and successful at that sport that he became a member of the England karate team. Many of the referees noted that karate was the one area in which he was able to achieve, and that karate was "his life". It was suggested to the learned sentencing Judge that his place in the England team would be at risk as a result of his convictions. It has, since the time of sentence, been confirmed that his convictions will bar him from further participation in that team, although it would appear that they would not bar him from participation in the sport at some less formal level.

40 Since the applicant was sentenced, he has obtained a psychological report dated 13 May 2003 which states that he meets the diagnostic criteria for Autism Spectrum Disorder and Asperger's Disorder or Syndrome. Characteristic of those conditions is a severe impairment in social interaction, and difficulties in interpreting social cues. I should note that none of the many psychologists, teachers or welfare authorities with whom the applicant was involved in the United Kingdom appear to have arrived at such a diagnosis. However, the inability to interpret cues was something which was placed before his Honour in the pre-sentence report, which noted that the applicant suffered "phonological dyslexia and experiences social and communication difficulties". The writer of the pre-sentence report suggested that excess alcohol on this occasion "may well have increased his inability to interpret the social cues correctly".

41 His Honour adjourned the sentencing of the applicant for a period of approximately 10 days, in order to consider the matter. He indicated prior to adjourning that in his view it was a serious set of offences and that he was not at that time prepared to dispose of them in any way involving a non-custodial disposition. At the resumption of the sentencing hearing, his Honour indicated that he had requested the Crown to let him have a copy of the depositions in the matter, which it seems that counsel had referred to on the prior occasion. He also had written submissions from the Crown. His Honour heard further short oral submissions.

42 His Honour accurately summarised the offences and observed that they were of considerable seriousness because of the fact that the applicant continued to assail the complainant even though she struggled, at all times having made it clear that she did not wish to have intercourse with him. He noted that there was a degree of injury to the complainant and that there were a number of phases or waves of the attack upon her, which suggested that the applicant was determined to pursue his goal "even though it must have been abundantly clear to him that the complainant was resisting his attack".

43 His Honour referred to the various reports before him relating to the applicant. He observed, in a passage the subject of one of the grounds of appeal:

"This is not the place, I believe, to engage in any form of theoretical discussion as to the nature and effect of the condition known as dyslexia because, in my finding, at the end of the day whatever that condition might entail for the offender the most significant evidence I have seen is his behaviour and conduct during the record of interview when questioned over some hours by the police.

44 His Honour noted that there was mild dissembling to begin with on the video and that there was then ready cooperation and indication of remorse by the applicant. His Honour formed the view that his observations did not indicate that any condition from which the applicant suffered played any part in the commission of the offence. However, his Honour found, as I have noted, that the applicant was severely affected by alcohol and that his actions were uncharacteristic. His Honour considered that the effect of the various disabilities from which the applicant suffered were such that:

"The mitigating effect of these issues upon this particular offence is only peripheral."

"At the end of the day the situation is simply this. This offending is too serious - too grave - to be dealt with in any other way than by the imposition of terms of imprisonment. The offences are, again, too serious to permit a suspension of that term notwithstanding the powerful pleas made on behalf of the accused."

46 His Honour considered that the offending in its totality ought to attract a term of 6 years imprisonment, even taking into account the youth of the applicant, but that because of the early plea of guilty and the applicant's returning voluntarily from the United Kingdom to Western Australia to be sentenced, a term of 4 years in total should be imposed.

47 As is unfortunately common in applications for leave to appeal against sentence, the grounds contained in the minute of amended grounds of application are prolix and repetitive. However, they appear to fall into four main categories:

1. His Honour erred in failing to have adequate regard to a variety of mitigating factors;

2. His Honour erred in giving undue weight to the question of general deterrence;

3. His Honour erred in not making certain inquiries, and

4. His Honour erred in having regard to matters other than those contained in the Crown's statement of material facts.

48 It is convenient to deal with these matters in reverse order.

Sections 100 and 101 Justices Act

49 So far as the fourth issue is concerned, it is asserted that having regard to the provisions of s 100 and s 101 of the Justices Act 1902 and s 617 of the Criminal Code, his Honour "erred in not regarding the prosecution facts as limited to what was contained in the Crown's statement of material facts and in relying on matters outside the Crown's statement of material facts adversely to the applicant."

50 The first thing to note about this ground is that it appears to me that in turning to the depositions and to the medical report, his Honour did no more than amplify the material already before him in the statement of material facts. While it clarified certain matters in that statement, nothing to which his Honour referred - indeed nothing so far as I can see contained in those depositions or in the medical report - in any way contradicted the statement of material facts or added any aggravating fact to it.

51 As to the question of principle however, it appears to me that the proposition contended for by the applicant is contrary to the authority of this Court in R v Wong (1995) 16 WAR 219. That case also involved a fast-track plea of guilty. The court was concerned with the question of how disputed mitigatory material in the statement of material facts should be dealt with by a sentencing Judge on a fast-track plea. However, there was some general consideration by Ipp J (with whom Franklyn and Anderson JJ agreed) of the fast-track sentencing process. His Honour noted in that case, without adverse comment, the prosecution's tender in the District Court of the papers comprising the brief in the Court of Petty Sessions and a transcript of the video-taped record of interview. His Honour considered that the juxtaposition, in s 100(1) of the Justices Act, of the statement of material facts with the defendant's statement, the record of interview, and matters of that kind, "indicates strongly that they should all be treated similarly." The thrust of his Honour's reasoning would suggest that the Crown is unable to go beyond the statement of material facts so as to introduce fresh aggravating material at sentencing, but the way in which his Honour discussed the sentencing process is in my view consistent only with an ability on the part of the trial Judge to refer to both the depositions which are formally tendered and the record of interview, if any, for the purpose of clarifying the matter contained within the statement of material facts, so as to assist him or her to form a view on any relevant issue.

52 It is alleged that his Honour erred in not making appropriate inquiries, and in particular not seeking a psychological or psychiatric report with a view to determining whether the applicant's disabilities could have "mitigatory significance" in relation to his offences, and further erred in basing his consideration of the effect of the applicant's disabilities on his culpability upon his own observations of the video-taped record of interview. Further, it is submitted that his Honour erred in not giving consideration as to how those disabilities would "impact upon his imprisonment", and in not making inquiries in relation to those matters.

53 As to his Honour's failure to seek further psychological or psychiatric reports, I have already noted that his Honour had before him considerable material. It included, as his Honour noted, a comprehensive report from the Dyslexia Institute in the United Kingdom prepared by a chartered psychologist, and a report from the Essex County Council Social Services in relation to the applicant's history. There was simply nothing before his Honour to suggest that any further material would have assisted him in any way. Further, in the light of the material which was before him, which did not suggest any particularly subtle disability which would make observations of his words and behaviour unreliable, his Honour was entirely justified in drawing conclusions from what he said and from his demeanour on the video-taped record of interview.

54 It is the case that the psychological report prepared subsequent to the sentencing of the applicant made the following observation in relation to the possible relevance of his disabilities to the offence:

"People with Aspergers have difficulty in assessing the intentions of others, in particular interpreting voice tone, gesture and other non-verbal cues. One would have expected Mr Hopper to be much slower at assessing the situation and the complainant's meaning than would a person who did not have this disability. It would be more difficult for him to interpret her change in behaviour if she complied with his initial attentions and seemed friendly."

55 One may accept the general observation made, without reaching a conclusion that the applicant's disability had any marked mitigatory effect in relation to the offences in question here, and in particular in relation to the sexual penetration without consent which was the last of those offences. It is true that the complainant was apparently initially on friendly terms with the applicant and there is some material in the depositions which suggests that she was prepared to hold his hand. She was happy for him to walk her to a taxi stand. However, her statement makes it clear that she told the applicant to "Stop it" from the time that he first began to try to kiss her. She told him to "Go away". She pushed him away. Significantly, he asked her if she wanted to have sex with him and she replied "No". It seems to me the only conclusion one can draw from the question is that the applicant wished to have sex, and that at that stage he was not so sure that the complainant was willing that he thought it unnecessary to ask. The answer which he received was negative, clear, and unequivocal. There is nothing in any of the psychological or other materials relating to the applicant to suggest that he would have been unable to understand that answer. The complainant then started to cry, and continued to cry saying: "Stop" and "Don't". There are simply no mixed messages and no subtleties which the applicant could have misinterpreted in the complainant's conduct. Even if one assumes that in the initial stages of his advances he perhaps assumed that the complainant would be a willing sexual partner, it is my view that during what his Honour referred to as a determined attack, the applicant had ample time and opportunity to realise, and that he did realise, the complainant's lack of consent.

56 In relation to the impact of imprisonment, I would not consider that it was necessary for an experienced sentencing Judge to obtain a report upon the likely impact of imprisonment on a person such as the applicant. Very many offenders have intellectual disabilities of one kind or another, and very many of them are vulnerable to manipulation and exploitation in gaol. All but the most hardened offenders are likely to find imprisonment stressful at some stage, and there is clearly a risk of institutionalisation in relation to many offenders, although it is probably fair to note that that risk may materialise at an earlier stage in relation to a person such as the applicant. All of these matters are well recognised and they are some of the factors which underlie the proposition that a sentence of imprisonment is always a last resort, particularly in relation to a young and vulnerable offender. It seems to me clear enough that his Honour was well aware of the principle. He plainly considered what he referred to as the "powerful pleas" made on behalf of the applicant in mitigation, and he took some time to reflect upon the appropriate sentence. Although he did not expressly advert to the likely impact of imprisonment on the applicant, that is a consideration present at almost every sentencing, and the circumstances would have to be most unusual before I would be prepared to find that a sentencing Judge who did not expressly advert to this matter had failed to consider it.

57 One cluster of grounds relating to this issue submit that his Honour erred in giving undue weight to general deterrence, in not giving appropriate weight to the fact that there was little if any need for personal deterrence, and in considering that the seriousness of the offences was itself a disqualifying factor precluding a suspended sentence.

58 One might be critical of his Honour's observation, if it were taken in isolation, that "the main issue is one of general deterrence". There were several main issues. General deterrence was plainly one. The applicant's youth, disabilities, and apparently very high level of remorse were plainly another set of main issues. A third, which his Honour perhaps subsumed under the heading of "general deterrence" is simply the need to ensure that offences of considerable gravity are seen to be condemned and punished appropriately.

59 However, it is my view that when one looks at his Honour's remarks overall, he has not fallen into any of the errors suggested by the applicant. There is no suggestion anywhere in his reasons that he considered that personal deterrence is an issue of particular significance for this applicant. He was correct in suggesting that general deterrence was of considerable importance; this is particularly so since, as it appeared to his Honour and as it appears to me, the applicant's disabilities, while considerable, were not such as to make him an inappropriate vehicle for general deterrence.

60 Finally, I do not read his Honour's reasons as suggesting that the seriousness of the offences was, on its own, a disqualifying factor

precluding the suspension of the sentence. Rather, it was the seriousness of the offences, understood in the light of all the circumstances, including those circumstances of the applicant's background to which his Honour had referred.

61 It is suggested that his Honour gave insufficient weight to a number of matters. There is simply nothing in his Honour's reasons, or in the sentence which he imposed, to suggest that he did not give appropriate weight to this applicant's age, record, cooperation with police, plea of guilty and remorse. So far as his ingestion of alcohol was concerned, it is suggested by the applicant that his Honour erred in failing to treat his intoxication as a "significant mitigating factor". It appears to me that his Honour did consider the ingestion of alcohol by the applicant to be a mitigating factor in the sense that he accepted that the offences were wholly uncharacteristic and, because he accepted that the applicant was normally abstemious, it followed (although his Honour did not find it necessary expressly to record the conclusion) that the danger of a repeat of such uncharacteristic behaviour was unlikely.

62 I would finally observe, in relation to the alleged insufficient emphasis on matters of mitigation, that the circumstances of these offences were objectively serious. They involved a persistent attack on a young woman who throughout made her total lack of consent and cooperation plain by struggling, crying, and asking the applicant to stop. The struggle resulted in some minor injuries to the complainant. In those circumstances, a starting point of 6 years' imprisonment and an actual sentence of 4 years' imprisonment, suggests to me that his Honour has considered that there were substantial mitigating circumstances present.

63 The sentencing exercise in this case was one of some difficulty. It appears to me that this would be a case in which it would be appropriate to grant leave to appeal against sentence, but I would dismiss the appeal.

64 HASLUCK J: I have had the advantage of reading in draft the reasons for decision of Murray and Wheeler JJ. This makes it unnecessary for me to repeat the material facts and to review the decided cases bearing upon the issues raised by the application save to the extent necessary for an understanding of these reasons.

65 The applicant pleaded guilty on the fast track system to various charges and was convicted of the offences of sexual penetration without

consent (for which he was sentenced to imprisonment for 4 years), indecent assault (for which he received a term of 2 years' imprisonment concurrent with the first sentence) and sexual penetration without consent (for which he received 4 years' imprisonment concurrent with the first sentence).

66 There was evidence before the learned sentencing Judge that the applicant was a shy, sexually inexperienced young man of 19 years of age who did not normally consume alcohol. He was affected by alcohol at the time the offences were committed. The sentencing Judge appeared to accept that the ingestion of alcohol influenced the applicant in a manner that was entirely uncharacteristic.

67 There was also evidence before the learned sentencing Judge that the applicant suffered from a psychological condition which meant that he experienced social and communication difficulties. The writer of a pre-sentence report suggested that excess of alcohol on the night in question may well have increased the applicant's inability to interpret the social cues correctly.

68 It is apparent from Anderson v The Queen (1996) 18 WAR 244 that the Court will generally receive new evidence on the hearing of an appeal if it sheds new light on considerations available to the sentencing Judge and is relevant to the sentence imposed. Pursuant to that principle, I consider that the further evidence sought to be adduced in the present case should be received as it tends to clarify the nature of the applicant's condition. A psychological report dated 13 May 2003 states that the applicant met the diagnostic criteria for Autism Spectrum Disorder and Asperger's Disorder or Syndrome. This confirms that the applicant was likely to have misconstrued the situation and was likely to be slow in responding to the complainant's protests. To my mind, this is borne out by the statements he made during the course of the police interview to this effect: "Once I realised what I was doing, I stopped. I thought, 'What the hell am I doing?'". He co-operated with the police and felt remorse.

69 I accept, for the reasons given by Murray and Wheeler JJ, that the circumstances of the offences were objectively serious. The applicant persisted with unwanted advances, notwithstanding the complainant's protests, and a degree of penetration occurred. Nonetheless, it was open to the learned sentencing Judge to conclude from the materials before him that the applicant's conduct was maladroit rather than predatory to begin with, and only crossed the line into criminality because the applicant was affected by alcohol and the unusual nature of his psychological condition.

70 It emerges from the reasoning of Murray J in Paparone v The Queen [2000] WASCA 127 that an illness or special condition will have a mitigatory effect where a causal link is established between the condition of the offender and the commission of the crimes for which he is to be sentenced. I consider that it was open to the learned sentencing Judge to apply such an approach in the circumstances of the present case. In my view, in failing to apply that approach, and by giving an undue emphasis to the need for general deterrence, the learned sentencing Judge erred in the exercise of his discretion.

71 For these reasons, I conclude that the overall sentence of 4 years' imprisonment is disproportionate to the level of criminality involved in the commission of the offences and that the sentence should be ameliorated, having regard to the applicant's youth and personal circumstances: Grimshaw v The Queen [2001] WASCA 427.

72 I am persuaded that the seriousness of the offences weighs against the imposition of a suspended sentence. However, I consider that the sentence should be reduced to an overall term of 3 years upon the basis that the first and third terms be reduced from 4 years to 3 years. It follows that, in my view, leave to appeal should be granted and the appeal allowed in the manner and to the extent I have indicated.