Criminal law - Appeal against sentence - Sexual penetration without consent - Sentence of 4 years' immediate imprisonment - Whether sentence manifestly excessive - Turns on own facts

Sentencing Act 1995 (WA), s 39

Mearns v The State of Western Australia [2009] WASCA 153

Miles v The State of Western Australia [2010] WASCA 93

R v Clark [2000] WASCA 229

R v Cleak [2004] WASCA 72

R v Quartermaine [2000] WASCA 341

The State of Western Australia v Akizuki [2008] WASCA 267; (2008) 192 A Crim R 373

Warburton v The State of Western Australia [2009] WASCA 113; (2009) 196 A Crim R 361

1 McLURE P: I have had the advantage of reading the reasons for judgment of Buss JA with whom Mazza J agrees. My preliminary view accorded with that of the majority. However, upon further consideration of the sentencing material and the sentences customarily imposed, I am not now persuaded that the sentence is manifestly excessive.

2 The facts found by the sentencing judge as to the circumstances of the appellant's offending are minimal and colourless. The only findings relating to the complainant are that she studied with the appellant's partner; celebrated the end-of-year exams with the appellant's partner at their residence; became intoxicated and went to sleep in one of the bedrooms. The sentencing judge found that the appellant went into the bedroom where the complainant was sleeping and sexually penetrated the complainant's vagina with his penis without her consent. The complainant woke up during intercourse. After the complainant objected the appellant desisted and left the room. The complainant left the house and sat on the driveway. The appellant went out and spoke to her. The complainant was yelling and swearing at the appellant who then drove her to a nominated address in Subiaco.

3 The appellant's defence at trial was that the complainant had consented to intercourse, alternatively that he acted under an honest and reasonable but mistaken belief that she had consented. The guilty verdict means the jury must have rejected the appellant's evidence given at trial and accepted the evidence of the complainant in relation to the elements of the offence. However, as noted in the pre-sentence report and the psychological report, the appellant continued to maintain his version of events notwithstanding that it was inconsistent with the verdict of the jury.

4 The State provided written submissions prior to the sentencing hearing. Its position was that the jury's verdict could only be consistent with an acceptance of the evidence of the complainant about the circumstances leading up to the offence and the offence itself. That proposition was not directly contradicted by counsel for the appellant in his sentencing submissions nor was it submitted that the sentencing judge (also the trial judge) should make any specific findings that would mitigate the seriousness of the circumstances of the appellant's offending.

5 However, the sentencing judge did not make any findings relating to the circumstances leading up to the commission of the offence (such as the nature and extent of any interaction between the appellant and the complainant prior to the offence or whether the appellant's judgment was impaired by alcohol or other substances). Nor did the sentencing judge

make findings on whether or not the appellant was remorseful. It is not clear whether the appellant's post offence conduct reflected remorse. There is simply nothing in the findings which provide any understanding or insight as to why the appellant, a man of mature years, opportunistically raped the complainant when she was asleep.

6 The consequence of the sentencing judge's failure to address these matters is that any aggravating factors have not been established beyond reasonable doubt and any mitigating factors have not been established on the balance of probabilities. In any event, having regard to the complainant's evidence at trial and the matters relied on by the appellant for his defences, I see no proper basis for the suggestion to this court that the appellant honestly believed that the complainant consented.

7 The seriousness of sexually assaulting a sleeping or unconscious complainant is reflected in the fact that a sentence of immediate imprisonment is ordinarily imposed: R v Clark [2000] WASCA 229; R v Cleak [2004] WASCA 72; Mearns v The State of Western Australia [2009] WASCA 153. The absence of force or intimidation in those circumstances is counterbalanced to a significant extent by the serious abuse of the victim's vulnerability, there being no opportunity to attempt to prevent the commission of the offence.

8 The offenders in each of Clark, Cleak and Mearns were young offenders, which significantly mitigated their offending. Mearns is a case where the circumstances of the offence were at the low end of the scale of seriousness. The circumstances of the offence committed by the appellant are not at the low end of that scale. Moreover, there is little by way of mitigation in this case. Having regard to all relevant sentencing factors the sentence of 4 years is broadly consistent with Clark, Cleak and Mearns. The appellant relied on Miles v The State of Western Australia [2010] WASCA 93, but that is a case of digital penetration. Although the appellant's sentence is high, I am not persuaded that it is manifestly excessive.

9 BUSS JA: The appellant was convicted, after a trial in the District Court before Stavrianou DCJ and a jury, on one count in an indictment which alleged that on 1 December 2009, at Como, he sexually penetrated the complainant, without her consent, by penetrating her vagina with his penis, contrary to s 325 of the Criminal Code (WA).

10 On 9 December 2010, the trial judge sentenced the appellant to 4 years' imprisonment, to be served immediately. His Honour ordered

that the term of imprisonment commence on that date. The appellant had not previously spent any time in custody. A parole eligibility order was made.

11 The appellant appeals to this court against his sentence.

12 The State's case at trial was, in summary, as follows.

13 On the evening of 1 December 2009, the complainant, who was aged 28 years, and two other women went to the house of a friend, T, to celebrate the end of their university examinations. The appellant was, at the time, in a relationship with T. He was at the house but did not participate in the celebrations.

14 During the evening, the complainant became very drunk. She went to bed in a spare room in T's house. During the early hours of 2 December 2009, the appellant entered the spare room and sexually penetrated the complainant's vagina with his penis, without her consent.

15 The complainant had been asleep in the spare room. She awoke to find a man on top of her who was sexually penetrating her vagina with his penis. Initially, she thought the man was her boyfriend. A little later, she realised it was someone else. When she protested the man got up and left the room. Afterwards, the complainant realised that it had been the appellant.

16 The State did not allege that the appellant had obtained the complainant's consent by force, threats or intimidation. Rather, its case was that the complainant 'did not give her conscious permission to the [appellant] sexually penetrating her. Indeed when he started she wasn't really conscious at all' (ts 39).

17 The appellant's case at trial was, in summary, that the complainant had consented to being sexually penetrated; alternatively, if she had not in fact consented, then the State was unable to prove to the requisite standard that he did not have an honest and reasonable, but mistaken, belief at the material time that she was consenting to being sexually penetrated.

18 The sole ground of appeal alleges that the trial judge erred by imposing a sentence that was manifestly excessive.

19 On 20 March 2011, Mazza J granted leave to appeal.

20 The State conceded on appeal that if the circumstances of the offending were 'at the low end of the scale of seriousness' then the term of 4 years was manifestly excessive.

21 This concession related solely to the length of the term. The State maintained that a term of imprisonment, to be served immediately, was the only sentencing option that was open.

22 At the material time, the maximum penalty for sexual penetration without consent, contrary to s 325 of the Code, was 14 years.

23 It has been emphasised repeatedly that there is no tariff for sexual offences. The sentence to be imposed in a particular case depends on its individual facts and circumstances, after having regard to the maximum available penalty. It is, nevertheless, important in deciding whether a particular sentence is manifestly excessive or not, to appreciate the sentences that are customarily imposed in cases involving similar offending. But comparable cases can provide only general guidance. The limits of the guidance they afford are flexible.

24 The sentences that have customarily been imposed for the offence of sexual penetration without consent (including where the offending involves penile penetration of a female's vagina) were reviewed by Steytler P in The State of Western Australia v Akizuki [2008] WASCA 267; (2008) 192 A Crim R 373. It is unnecessary to repeat his Honour's review. See also R v Quartermaine [2000] WASCA 341; R v Cleak [2004] WASCA 72; Warburton v The State of Western Australia [2009] WASCA 113; (2009) 196 A Crim R 361; Mearns v The State of Western Australia [2009] WASCA 153; Miles v The State of Western Australia [2010] WASCA 93.

25 In the present case, the trial judge quoted, in his sentencing remarks, this passage from the reasons of Steytler P in Akizuki:

(1) An average starting point for a case of penile penetration of the vagina without consent, absent circumstances of aggravation, is in the order of 7 years' imprisonment under the former sentencing regime, or around 4 years and 8 months' imprisonment under the transitional regime. That starting point takes no account of any factors in mitigation [68].

26 However, Steytler P elaborated immediately, as follows:

(2) Because the circumstances of sexual offending and sexual offenders are so variable, nothing will be achieved by specifying a range of sentences customarily imposed. The range of potential aggravating features is so huge that features of that kind can either dramatically increase the sentence imposed (bearing in mind that the maximum sentence for an aggravated offence is 20 years' imprisonment: s 326 of the Criminal Code) or have little or no effect on the sentence imposed. The range of potential mitigating factors is at least equally extensive. They might result in a very large reduction in sentence or little or no reduction.

(3) Nor will anything be achieved by specifying a different starting point for each category of sexual penetration without consent. It should not be assumed that one form of sexual penetration is necessarily more, or less, serious than another. As Wheeler JA pointed out in C v The State of Western Australia [2006] WASCA 261 [35], there is no 'hierarchy of sexual penetration'. For example, although digital penetration will ordinarily be less serious than penile penetration, that is not inevitably so. It might, in particular circumstances, be no less serious or even more serious. The seriousness of every offence of unlawful sexual penetration must be determined by its own individual circumstances: C [35] (Wheeler JA); Cavill [266] - [267] (Miller JA) [68].

27 Steytler P then noted that this was about 'as much guidance as can be obtained from the cases' [69]. His Honour expressly acknowledged that this may be 'less than sentencing judges might wish' [69]. However, that outcome was 'a necessary consequence of the court's obligation to tailor each sentence to the individual circumstances of the case, having regard for the maximum penalty provided by the legislature and, to the extent that they can be of assistance, sentences customarily imposed in similar circumstances' [69].

28 It must be emphasised that Steytler P in Akizuki, by referring to an 'average starting point', did not suggest, approve or mandate an approach to sentencing for the offence of sexual penetration without consent on the basis of a starting point of 4 years 8 months' imprisonment. In the present case, it appears from his Honour's sentencing remarks that he may have adopted this approach and then adjusted the starting point to reflect mitigating factors. There is no tariff for sexual offences. Sentencing for these offences cannot be carried out on the basis of an 'average', including an 'average starting point'.

29 During the sentencing hearing it was not submitted to the trial judge that a finding should be made, for the purposes of sentencing, as to whether the appellant had an honest, as distinct from a reasonable, belief at the material time that the complainant was consenting to being sexually penetrated. In these circumstances, it is not surprising that his Honour did not make a finding on this point.

30 The trial judge did, however, make the following findings in the course of his sentencing remarks:

(a) Shortly after the offending, the complainant left the house and sat on the driveway. The appellant came out and spoke to her. She was traumatised. The appellant drove her to another address where he left her, at her request. The complainant then telephoned her boyfriend and complained (ts 301).

(b) The offending involved 'opportunistic conduct' by the appellant. The complainant was intoxicated and he desisted when she protested (ts 301).

(c) The appellant was aged 44 years at the time of sentencing, and was 43 when he offended. He had been studying psychology at university and had almost completed his degree (ts 302).

(d) The appellant had a minor traffic record, but that record was irrelevant to the appropriate sentencing disposition (ts 302).

(e) The appellant was in a stable relationship with a woman, and she remained supportive of him (ts 302).

(f) A report from a registered psychologist indicated that the appellant was at a low risk of reoffending (ts 302).

(g) The appellant did not use any violence towards the complainant (beyond the degree of force necessarily involved in penetrating her vagina with his penis). However, he took advantage of the complainant who was vulnerable as a result of having consumed alcohol to excess (ts 303).

31 A report dated 22 November 2010 from the psychologist indicated that the appellant was a relatively well-functioning individual with no previous history of sexual or other offending, no substance abuse issues, and no mental health problems.

32 The psychologist noted, however, one area of concern, as follows:

The one area of concern is related to [the appellant's] involvement in the sex industry and his 'swinging' lifestyle. This suggests liberal sexual boundaries and attitudes. Such attitudes require heightened awareness of informed consent issues. Although [the appellant] reported attitudes that suggested a sexual openness and a willingness to experiment sexually he reported no attitudes supportive of sexual offending. He stated that he has ceased any involvement in the sex industry and the 'swinging' community.

Overall [the appellant] did not present with any particular risk factors or treatment needs that would need addressing. [The appellant] reported good [support] from friends, partner, and family. His comments also suggested relatively good coping skills. One area of future concern will relate to employment as his current offence will decrease his chances of being employed as a psychologist or a security officer.

34 In my opinion, on the facts as found by his Honour, the appellant's offending fell towards the lower end of the scale of seriousness for offences of sexual penetration without consent. Although the complainant was vulnerable and the appellant took advantage of her, his criminal conduct did not involve the use of force, threats or intimidation, and the complainant was not physically injured. The appellant's conduct was 'opportunistic', and he desisted when she protested. These matters do not, of course, diminish the seriousness of the appellant's actual behaviour or the emotional trauma suffered by the complainant, but they do distinguish this case from other more serious cases of sexual penetration without consent.

35 After the commission of the offence, and when it was readily apparent that the complainant was distressed by what had occurred, the appellant provided her with some assistance. He drove the complainant towards her home, although he eventually left her, at her request, at another address.

36 The offending did not involve a breach of trust and there were no other aggravating factors of any importance.

37 The appellant's personal circumstances, to which I have referred, were favourable, but he did not have the benefit of the mitigation that a plea of guilty would have brought.

38 Ordinarily, a term of immediate imprisonment is the only appropriate penalty for the offence of sexual penetration without consent. A lesser type of sentence will be imposed only in exceptional circumstances. See Mearns [8] (McLure JA, Buss JA generally agreeing).

39 I am satisfied, after having regard to the sentencing principles set out in div 1 of pt 2 of the Sentencing Act 1995 (WA), that it was not appropriate, in the present case, to impose a suspended term of imprisonment. See s 39(2) and s 39(3) of the Act. The objective facts and circumstances of the offending, and the absence of a plea of guilty accompanied by real remorse, required the imposition of a term of imprisonment to be served immediately. This was the only appropriate sentencing option.

40 I am persuaded, however, that the sentence of 4 years' immediate imprisonment was manifestly excessive. After taking into account the maximum penalty for the offence, the level of seriousness of the circumstances of the appellant's offending, the sentences customarily imposed for the offence and the appellant's personal circumstances, it is apparent that the sentencing outcome was unreasonable or plainly unjust. Error in the exercise of the sentencing discretion is to be inferred.

41 I would allow the appeal and set aside the trial judge's sentencing decision. This court has the materials necessary to resentence the appellant. After taking into account all relevant sentencing factors, I would substitute a term of 3 years' immediate imprisonment. The new sentence should be taken to have taken effect on 9 December 2010, being the date on which the appellant went into custody. He should remain eligible for parole.