Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA

Criminal law - Application for an extension of time to appeal against sentence - Convicted of sexual penetration of a child - Sentence manifestly excessive - Appeal dismissed

Sentencing Act 1995 (WA), s 9AA

Langdon v Kelemete-Leoli-McLean [2011] WASCA 26; (2011) 206 A Crim R 368

LJP v The State of Western Australia [2010] WASCA 85

Nembousse v The State of Western Australia [2015] WASCA 68

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

Schriever v The State of Western Australia [2008] WASCA 133

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

The State of Western Australia v AF [2014] WADC 124

The State of Western Australia v Staniforth-Smith [2014] WASCA 170

Van Doorn v The State of Western Australia [2008] WASCA 177

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

1 MAZZA JA: The appellant applies for an extension of time to appeal and, if granted, for leave to appeal against sentence. The appeal was filed two months and 20 days late. The explanation for the delay is not entirely satisfactory, but nevertheless I would grant the extension of time.

2 The appellant was charged on indictment in the District Court that on 15 April 2013, at Beckenham, he sexually penetrated R, a child of or over the age of 13 and under the age of 16 years, by penetrating her vagina with his penis, contrary to s 321(2) of the Criminal Code (WA). At the time he committed the offence, the appellant was a few weeks shy of his 19th birthday. R, the girl, was aged 14 years.

3 On 8 November 2013, the appellant pleaded guilty as charged and was duly convicted. The State alleged that the offence was aggravated because the victim did not consent to the act of sexual penetration. The appellant denied this allegation. The burden fell upon the State to prove it beyond reasonable doubt.

4 A trial of issues took place before Herron DCJ on 16 April and 8 August 2014. Among the witnesses who testified were R and the appellant. On 11 September 2014, his Honour found that the State had proved beyond reasonable doubt that the victim did not consent. He published his reasons for arriving at this conclusion: The State of Western Australia v AF [2014] WADC 124. Following the sentencing submissions, the appellant was sentenced to 2 years 6 months' immediate imprisonment with eligibility for parole.

5 The sole proposed ground of appeal alleges that the sentence was manifestly excessive. The written submissions in support of the proposed ground make it clear that the appellant alleges that the length of the term of imprisonment was excessive and not that his Honour imposed the wrong type of sentence.

6 For the reasons which follow, I have concluded that the proposed ground of appeal has no reasonable prospect of succeeding and that the appeal should be taken to be dismissed.

7 The appellant and the victim met approximately three weeks prior to the commission of the offence. They were introduced by the victim's cousin. The appellant was aware that the victim was only 14 years old. An exchange of text messages occurred between 10 April and 15 April 2013 between the appellant and the victim. It is clear from that exchange that the appellant wanted to have sex with the victim. The victim treated the text messages in a joking and flirtatious way.

8 On 15 April 2013, the victim went to the appellant's house. The appellant was drinking alcohol and was very drunk. The victim felt some affection towards the appellant and looked after him in his drunken condition, including heating up some food for him to eat.

9 At one point during the evening, the victim went into the appellant's bedroom to get her handbag and mobile telephone which was being charged. The appellant followed her into the bedroom shortly afterwards and then closed and locked the door behind him. The appellant asked the victim for sex. She refused more than once. The appellant then forced the victim onto his bed, removed her shorts and underwear, lay on top of her, forced open her legs and had sexual intercourse with her against her will. While doing so, the victim kicked at the appellant and struggled with him, telling him to stop. The appellant nevertheless kept going. While this was occurring, the victim's cousin was banging on the bedroom door and yelling at the appellant. Eventually, the appellant stopped what he was doing and got off the victim. She immediately dressed, left the bedroom and complained to her cousin that the appellant had raped her.

10 In the early hours of 16 April 2013, the appellant was interviewed by police. He admitted that it was the wrong thing to have sex with the victim because she was underage. He told the police that he had made a mistake having sex with her, but denied that he had done so without her consent. In fact, he told the police that the victim had closed and locked the bedroom door and that she asked him for sex.

11 The learned sentencing judge had the benefit of a pre-sentence report, a report written by Ms Jane Sampson, a clinical psychologist, dated 4 October 2013, character references which spoke favourably of the appellant, and the appellant's criminal history.

(2) The appellant had a disadvantaged and dysfunctional background without any proper adult support, without close friends and without proper schooling (ts 203).

(3) The appellant reported incidents of physical abuse at schools and in hostels in which he resided, as well as an incident of sexual abuse.

(4) He was diagnosed with ADHD at 14 years of age and prescribed medication for that condition, but stopped taking it at the age of 17.

(5) The appellant had a history of some casual work (ts 204).

(6) While at the time of the offence the appellant may well have been suffering from depression, the learned sentencing judge was unable to find the extent to which that condition may have impacted on the appellant's offending conduct.

(7) The appellant had a prior record of convictions as a juvenile, but no prior convictions as an adult. In any event, he had not committed any offences of a similar nature in the past.

(8) Despite the trial of issues, the appellant was somewhat remorseful for his offending.

(9) He presented as a low risk of sexually reoffending against children (ts 205).

13 Ms Sampson formed the view that the appellant's offending did not appear to be related to sexual deviancy, but, rather, was linked to his 'personal inadequacy'. She found no apparent evidence of psychopathic personality disorder, but that he did have a history of depression and may have problems with alcohol, observing that the offence was committed in circumstances where his judgment appears to have been 'overridden by intoxication and a quest for approval'. She recommended that the appellant engage in a substance abuse program and have access to individual psychological counselling.

14 As the proposed ground of appeal does not allege any express error on the part of the learned sentencing judge, it is unnecessary to canvass in detail the sentencing remarks. It is enough to observe that his Honour made the following points:

(1) He accepted that the appellant's judgment and thought processes at the time of the offence were impeded by the amount of alcohol he had consumed, but that this was no excuse (ts 202).

(2) He explicitly made reference to the appellant's plea of guilty and his subjective personal circumstances, including his youth. As to the former, the appellant was given a 15% discount pursuant to s 9AA of the Sentencing Act 1995 (WA).

(3) The seriousness of the offence was aggravated by the fact that the act of sexual intercourse occurred without the victim's consent.

(4) Although he regarded personal deterrence as 'not a significant sentencing factor', he considered that general deterrence was such a factor.

(5) Having decided that imprisonment was the only appropriate disposition, his Honour again considered all of the relevant sentencing factors and concluded that the gravity of the offence was such that it was inappropriate to suspend the term of imprisonment.

15 The general appellate principles to which this appeal is subject were accurately described by McLure P and Owen JA in Wilson v The State of Western Australia [2010] WASCA 82 [2]. It is unnecessary here to repeat what was written on that occasion. It is enough to observe that this court can only intervene if it is satisfied that the sentence imposed was unreasonable or plainly unjust, being outside the range of a sound sentencing discretion.

16 The appellant's submissions were encapsulated in the particulars to the ground of appeal. The appellant submitted that the sentence was manifestly excessive, having regard to:

1. The Appellant's young age.
2. The Appellant's plea of guilty.
3. The Appellant's dysfunctional history, prior physical and sexual abuse and unstable lifestyle.
4. The Appellant's outstanding treatment needs.
5. The psychologist's findings that the Appellant's offending did not appear related to sexual deviancy, but rather personal inadequacy.
6. The fact that R suffered minimal ill effects as a result of the offending.
7. Case authorities for like offending.

17 In determining whether a sentence is manifestly excessive, regard is had to the maximum sentence for the offence, the standards of sentencing customarily observed, the place which the criminal conduct occupies on the scale of seriousness and the personal circumstances of the offender.

18 Sentences customarily imposed in comparable cases provide a yardstick or reference point for ensuring broad consistency in sentencing, bearing in mind that there is no single correct sentence. What is important is the unified principles which sentences imposed in comparable cases both reveal and reflect: Nembousse v The State of Western Australia [2015] WASCA 68 [14] - [16].

19 The maximum penalty for an offence contrary to s 321(2) of the Criminal Code is 14 years' imprisonment.

20 In the sentencing proceedings, it was correctly accepted and not put in issue in this court, that the learned sentencing judge was entitled to take into account as an aggravating factor the absence of consent, even though the appellant was not charged with a sexual offence in which the absence of consent was an element: see Langdon v Kelemete-Leoli-McLean [2011] WASCA 26; (2011) 206 A Crim R 368.

21 The appellant referred to a number of cases in his written submissions, including Schriever v The State of Western Australia [2008] WASCA 133; Van Doorn v The State of Western Australia [2008] WASCA 177; LJP v The State of Western Australia [2010] WASCA 85 and The State of Western Australia v Staniforth-Smith [2014] WASCA 170. It is unnecessary to set out the facts and circumstances of those cases or to refer to the other cases cited therein. It is enough to say that those cases are not apt comparators.

22 The seriousness of offences contrary to s 321(2) of the Criminal Code can vary widely, but absence of consent on the part of the victim is a seriously aggravating factor: Poulton v The State of Western Australia [2008] WASCA 97 [3] and Simon v The State of Western Australia [2009] WASCA 10 [23].

23 The offence committed by the appellant was a serious offence of its kind. The appellant engaged in sexual intercourse with R, knowing her age and knowing that he should not be engaging in such conduct with her. R made it clear that she did not want to have sex with the appellant. He forced himself on her and, despite her obvious resistance, he did not stop. The appellant's intoxication, while affecting his judgment, was no excuse.

24 There were mitigating factors. They were all referred to by the learned sentencing judge. He emphasised the appellant's youth and his plea of guilty. His Honour properly emphasised the need for general deterrence.

25 Having evaluated all of the relevant circumstances, I am unable to say that the sentence of 2 years 6 months' imprisonment was unreasonable or unjust. In my opinion, it was within the range of a proper exercise of the sentencing discretion. Error cannot be inferred. This court has no warrant to interfere.

26 In my opinion, leave to appeal should be refused with the consequence that the appeal must be taken to have been dismissed.

1. Leave to appeal is refused.
2. The appeal is dismissed.