JETTER -v- THE STATE OF WESTERN AUSTRALIA [2021] WASCA 80 | Case summary

Court of Appeal (WA)|2021-05-07|Before: Buss P

For the reasons we have given, we decided, at the conclusion of the hearing of the appeal, that the appeal should be allowed; the sentences imposed by the sentencing judge and the orders for cumulacy and concurrency made by her Honour should be set aside; the appellant should be resentenced as set out at [13] above; and the other orders referred to at [13] above should be made.
We note that, in deciding upon the sentence to be imposed for count 3, we had regard to:

(a) the unchallenged findings of fact made by her Honour in relation to count 3;

(c) the fact that the appellant's conduct in striking and attempting to strike the complainant was not premeditated or planned, but spontaneous; and

(d) the appellant's personal circumstances and antecedents and all other relevant sentencing factors.

(a) like the sentencing judge, we allowed a discount of 25%, pursuant to s 9AA of the Sentencing Act, on the head sentence we would otherwise have imposed for each offence, on account of the plea of guilty;

(b) we also reduced each sentence we would otherwise have imposed for each offence to reflect the other mitigating factors; and

(c) we also reduced the sentence we would otherwise have imposed for count 1 from 6 months' immediate imprisonment to 3 months' immediate imprisonment in the application of the totality principle.

Further, we note that it was not open to the court to consider whether suspended or conditionally suspended imprisonment was an appropriate sentencing outcome for counts 1 and 2 because it was inevitable that a term of immediate imprisonment had to be imposed for count 3. See s 76(3)(b) and s 81(3)(b) of the Sentencing Act.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.

[1] Gleeson v The State of Western Australia [2019] WASCA 100 [57] ‑ [64] (Buss P, Mazza & Mitchell JJA).

[2] Greenfield v The State of Western Australia [2019] WASCA 29 [24] ‑[26] (Buss P, Mazza JA & Hall J).

[3] Deering v The State of Western Australia [2007] WASCA 212 [17] (Wheeler JA; Owen & Miller JJA agreeing).

[4] GNR v The State of Western Australia [2015] WASCA 5 [61] (McLure P; Buss & Mazza JJA agreeing).

[5] Riggall v The State of Western Australia [2008] WASCA 69; (2008) 37 WAR 211 [19].

[6] The State of Western Australia v SJH [2010] WASCA 40; (2009) 200 A Crim R 228.

[7] Tapper v The State of Western Australia [2016] WASCA 140 [84] (Buss P; Mazza & Mitchell JJA agreeing).

[8] Poulton v The State of Western Australia [2008] WASCA 97.

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

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

[11] Pallister v The State of Western Australia [No 2] [2015] WASCA 221.

[12] Buckley v The State of Western Australia [2015] WASCA 242.

[13] McGarry v The Queen [2001] HCA 62; (2001) 207 CLR 121 [9] (Gleeson CJ, Gaudron, McHugh, Gummow & Hayne JJ).

[14] The State of Western Australia v Cairns [2006] WASCA 178 [42] (McLure JA; Buss JA agreeing).

[15] Sathitpittayayudh v The State of Western Australia [2015] WASCA 152 [28] ‑ [29] (Hall J; McLure P & Mazza JA agreeing).

[16] YDN v The State of Western Australia [2018] WASCA 62 [53] (Mazza, Mitchell & Beech JJA).

[17] Law v The Queen [2019] WASCA 81 [134] (Buss P, Beech & Pritchard JJA).

[18] Lee v The State of Western Australia [2018] WASCA 156 [90] ‑ [91] (Buss P, Mazza JA & Allanson J).

It is, no doubt, undesirable that young people should embark upon sexual activity at an age at which they may be unable to fully comprehend or to cope with the social and emotional consequences of that activity. To that extent, the legislation is intended to protect young people 'from themselves'.

However, the legislation is also, and, in my view, more importantly, directed to ensuring that those who do not consent to sexual activity are not required to engage in it. In this context, it is recognised that the capacity of a person in this age group to resist moral, social, emotional or other pressure from a person more mature than themselves may be very limited. I set out some of the legislative background in Marris v R [2003] WASCA 171. At [13] of that decision, I noted the comment by the Hon J M Berinson, the then Attorney-General, that ' ... the clear intention and target is not sexual activity as such, but sexual activity involving some element of abuse'. I said there, and I repeat, that that is a concept of considerable importance in relation to sentencing in respect of offences of this kind. The greater the element of abuse, as evidenced by matters such as disparity in age, or the use of force, or other types of pressure, or of a pattern of 'grooming' behaviour, or a betrayal of trust, the greater the culpability [17] ‑ [18]. (emphasis added)

Proved absence of consent or, particularly, knowledge of absence of consent is aggravating: Poulton v The State of Western Australia [2008] WASCA 97 per McLure P at [3]. I would add that it may be aggravating that the consent has been procured through what might be described as persistent grooming or persuasion, or by the use of some other sort of influence falling short of coercion. Absence of evidence concerning consent is, of course, neutral. However, knowledge of free and voluntary consent, particularly where the child has initiated the conduct in question, would appear to me to be mitigating, when regard is had to the legislative structure and purpose described above. Whether a fact is aggravating or mitigating is to be considered in connection with the purpose for which it is to be used: R v Storey [1998] 1 VR 359 at 371, cited in Weininger v The Queen [2003] HCA 14; (2003) 212 CLR 629, 638. If the primary purpose of the legislation is to protect children from 'abuse', actual absence of abuse, would appear, necessarily, to be mitigatory [69].

JETTER -v- THE STATE OF WESTERN AUSTRALIA [2021] WASCA 80 (7 May 2021)

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