Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA

Criminal law - Sexual offences - Application for leave to appeal against sentence - Total effective sentence 2 years 8 months' imprisonment - Manifest excess

Sentencing Act 1995 (WA), s 9AA

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

R v Clark [2000] WASCA 229

R v Cleak [2004] WASCA 72

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

2 MAZZA JA: This is an application for leave to appeal against sentence.

3 On 2 February 2015, the appellant pleaded guilty in the District Court to two counts of sexually penetrating H without her consent in a circumstance of aggravation, namely that he and H were in a family and domestic relationship, contrary to s 326 of the Criminal Code (WA). The offences occurred on 2 February 2014 in the course of one incident. The first offence involved penetration of H's vagina with the appellant's fingers, and the second offence involved penile penetration of H's vagina.

4 On 31 March 2015, the appellant was sentenced to 1 year's imprisonment for the first offence, and 2 years 8 months' imprisonment for the second offence. His Honour ordered the sentences to be served concurrently; thus, the total effective sentence imposed was 2 years 8 months' imprisonment. The appellant was made eligible for parole and a permanent violence restraining order was made in H's favour pursuant to s 63A of the Restraining Orders Act 1997 (WA). The appellant seeks leave to appeal on the sole ground that the sentence on the second offence of 2 years 8 months' imprisonment was manifestly excessive.

5 For the reasons which follow, the proposed ground of appeal does not have a reasonable prospect of succeeding. Accordingly, the appeal must be taken to be dismissed.

6 The appellant was, at the time of the offending, 20 years of age. H, with whom he was in, as the learned sentencing judge described it, 'a fully committed relationship', was 18 years of age. Their relationship was, at times, tempestuous.

7 In June 2013, the appellant penetrated H's vagina with his fingers[1] in circumstances where he appears to have mistakenly believed H had consented. The appellant apologised for his behaviour and for a time he and H broke up (the earlier incident).

8 Subsequently, the appellant and H got back together. On 2 February 2014, they were in bed. The appellant reached over to H and put his hand inside her pants. H said 'No', but the appellant pushed his fingers inside her vagina and moved them in and out without her permission (the first offence).

9 H was visibly upset by what had occurred. Again, she said 'No'. Despite this, the appellant rolled H onto her back and pinned her down. He then forcefully pulled down her pants. She said repeatedly 'No, I don't want this'. The appellant prised apart H's legs, pushed his penis into her vagina and proceeded to have sexual intercourse with her against her will for approximately five minutes until he ejaculated (the second offence).

10 Some 10 days later, the appellant sent a text message to H's father in which he apologised for his conduct and said, in effect, that he should never have been violent towards H, or forced her to have sex with him. On 28 March 2014, the appellant communicated with H on Facebook. He apologised to her, said that he had experienced feelings of jealousy at the time of the offences, and said that he knew that he should have stopped once H said 'No'.

11 The appellant was later interviewed by the police and admitted his wrongdoing. His Honour found the appellant to have been 'open and truthful' in the interview.

12 The reports provided to his Honour were largely positive, and the appellant's antecedents and subjective circumstances were favourable.

(b) the absence of any prior record of convictions;

(e) his voluntary participation in appropriate psychological counselling;

(g) his good reputation in the community as attested to by the many character references tendered to the court below.

14 H provided a detailed victim impact statement. Its contents were not challenged in the sentencing proceedings. It is clear from that document that the offences have had a significant adverse impact upon her wellbeing.

15 As it is not alleged that the learned sentencing judge made any express error, it is unnecessary to describe his Honour's sentencing remarks in any length.

16 The pleas of guilty were entered late, as a result of which his Honour gave a 5% discount pursuant to s 9AA of the Sentencing Act 1995 (WA). His Honour took into account the favourable subjective factors and circumstances I have referred to. He also had regard to the serious consequences for H as described in her victim impact statement. He correctly characterised the offending as serious.

17 His Honour found that the appellant was motivated to not offend in the future, and that he would continue 'with appropriate programs'. Having regard to these factors, his Honour found that the appellant's risk of reoffending was low.

18 Despite the matters favourable to the appellant, his Honour regarded the circumstances of the offending as so serious that the only appropriate disposition in respect of each offence was a term of imprisonment. Upon the basis that the offences were committed closely in time, his Honour ordered that the sentences be served concurrently. He then considered whether to suspend the sentences. In this regard, he said:

I have decided that notwithstanding the matters to your credit to which I have referred, the seriousness of the offending and the need for general deterrence mean that suspension is not appropriate... (ts 43).

19 The submissions made on behalf of the appellant in support of his application emphasised his favourable subjective factors. The appellant cited the cases of R v Clark [2000] WASCA 229; R v Cleak [2004] WASCA 72 and Mearns v The State of Western Australia [2009] WASCA 153 in support of the contention that the sentence of 2 years 8 months' imprisonment was manifestly excessive.

20 The principles upon which this application must be decided are well-established. This court cannot intervene simply because, had it been sentencing the appellant at first instance, it would have imposed a different sentence. Rather, this court's jurisdiction to intervene is only enlivened where the appellant demonstrates that a material express or implied error has been made in the exercise of the sentencing discretion. Manifest excess is a species of implied error. An appellant who alleges that a sentence is manifestly excessive must establish that the sentence is so plainly unjust or unreasonable that this court must conclude that a substantial wrong has occurred.

21 In determining whether a sentence is manifestly excessive, 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.

22 The maximum penalty for an offence contrary to s 326 of the Criminal Code involving, as it does here, the aggravating circumstance of the parties being involved in a family and domestic relationship is 20 years' imprisonment.

23 Comparing one case, or a small sample of cases, against the sentence in question is of very limited assistance. There is no one correct sentence; rather, only a range of sound sentencing discretion. The outcomes of previous cases are a yardstick against which to measure a sentence, or a proposed sentence, with the aim of achieving consistency in the application of principle and broad consistency in outcome. Other cases do not mark the upper or lower limits of sound sentencing discretion. Ultimately, each case must be decided on its own facts.

24 The cases decided in this State reveal that there is no tariff for sexual offences because of the great variation in the circumstances in which such offences take place, and of offenders. Nevertheless, as a matter of fact, the ordinary sentence for an offence of sexual penetration without consent (whether or not committed in circumstances of aggravation) is a term of immediate imprisonment.

25 In The State of Western Australia v Akizuki [2008] WASCA 267; (2008) 192 A Crim R 373, Steytler P undertook a review of a significant number of cases involving sexual offending, after which he said, at [68] - [69]:

As might have been anticipated, this review of the cases reveals that the circumstances of sexual offending, and of sexual offenders, are almost infinitely variable. That, in turn, means that the sentence imposed in one case can provide only very limited guidance in deciding what sentence should be imposed for a similar offence in another case. However, some conclusions can be drawn, as follows:

(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.

(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).

That seems to me to be about as much guidance as can be obtained from the cases. I appreciate that it is less than sentencing judges might wish. However, that is 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.

26 I have considered the cases cited by the appellant's counsel: Clark, Cleak and Mearns. It is unnecessary to set out the facts and circumstances of those cases. In common with the present case, each concerns a young offender with good antecedents who had been convicted of sexual penetration without consent (in the case of Clark, in a circumstance of aggravation). I do not regard the outcome in the present case as inconsistent, in a broad sense, with the outcomes in those cases.

27 The appellant's offending was unquestionably serious. It occurred against the backdrop of the earlier incident. H made it clear from the outset that she did not consent to engaging in sexual activity with the appellant. Despite H's repeated objections, he penetrated her vagina with his fingers and then with his penis. The second offence was committed with a degree of force, in that he pinned H, pulled down her pants and prised her legs apart. The act of sexual intercourse was more than momentary, and only stopped after he ejaculated. It was, upon any analysis, a traumatic experience which has had a substantial negative impact upon H. While the appellant later apologised for his conduct, his apologies were too little, too late.

28 I have had regard to the appellant's favourable personal circumstances and, in particular, his youth, prior good character and genuine remorse. I have not overlooked his (late) guilty plea. Nevertheless, having regard to all of the relevant circumstances, it is not reasonably arguable that the sentence of 2 years 8 months' imprisonment imposed upon the appellant for the second offence was plainly unjust or unreasonable. The proposed ground of appeal has no reasonable prospect of succeeding. The appeal must be taken to be dismissed.

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

[1] Originally count 1 on the indictment, which was subsequently discontinued by the State.