Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA

Criminal law - Sentencing - Indecent dealing with and sexual penetration of child of or over 13 and under 16 years - Total effective sentence of 14 months' immediate imprisonment - Offender aged 18 years - Good antecedents - Sexual penetration as single impulsive act of digital penetration - Whether sentence should have been suspended - Whether sentence was manifestly excessive

Sentencing Act 1995 (WA), div 1 pt 2, s 6(1), s 6(2), s 6(4), s 39(2), s 39(4)

1. On count 3, 10 months' imprisonment suspended without conditions for 10 months

2. On count 4, 4 months' imprisonment suspended without conditions to be served concurrently with sentence on count 3

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

C v The State of Western Australia [2006] WASCA 261

CJ v The State of Western Australia [2009] WASCA 42

Collins v The State of Western Australia [2007] WASCA 108

Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321

Floresta v The State of Western Australia [2015] WASCA 93

Gavenlock v The State of Western Australia [2014] WASCA 36

GNR v The State of Western Australia [2015] WASCA 5

House v The King [1936] HCA 40; (1936) 55 CLR 499

JAF v The State of Western Australia [2008] WASCA 231; (2008) 190 A Crim R 124

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

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

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

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

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

Tapper v The State of Western Australia [2016] WASCA 140

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

1 REASONS OF THE COURT: This is an appeal against sentence. After a hearing on 1 September 2016, on 8 September 2016 the court made the following orders:

(3) The sentences imposed by Sweeney DCJ are set aside.

(4) In lieu thereof, the appellant is sentenced as follows:

(a) on count 3, 10 months' imprisonment suspended without conditions for 10 months.

(b) on count 4, 4 months' imprisonment suspended without conditions for 10 months, to be served concurrently with the sentence on count 3.

2 What follows are our reasons for making these orders.

3 The appellant was charged on indictment in the District Court with four counts of sexual offending against a 13-year-old child named A. It was alleged that on two separate occasions on a date unknown between 31 July 2014 and 25 November 2014 at a suburb in Perth and on one occasion on a date unknown between 15 October and 30 November 2014, he indecently dealt with A, a child of or over the age of 13 years and under the age of 16 years, contrary to s 321(4) of the Criminal Code (WA) (the Code) (counts 1, 2 and 4). On another occasion, during the first mentioned time period at the same location, it was alleged the appellant sexually penetrated A, a child of or over the age of 13 years and under the age of 16 years, contrary to s 321(2) of the Code (count 3). At the time he allegedly committed these offences, the appellant was 18.

4 The appellant entered pleas of not guilty to all of the charges. He was tried before Sweeney DCJ and a jury. On 5 May 2016, he was acquitted of counts 1 and 2, but convicted of counts 3 and 4. On 20 May 2016, the appellant was sentenced on count 3 to 14 months' immediate imprisonment and, on count 4, to 4 months' immediate imprisonment. Her Honour ordered that the sentences be served concurrently. Thus the total effective sentence was 14 months' immediate imprisonment. The appellant was made eligible for parole. The sentences commenced on 20 May 2016.

5 The appellant relies on two grounds of appeal. Ground 1 alleges, in effect, that the sentences were manifestly excessive because the wrong type of sentence was imposed. It is said that a suspended imprisonment order should have been made. Ground 2 alleges, in effect, that if ground 1 is not made out, the sentence of 14 months' immediate imprisonment for count 3 was manifestly excessive and should be reduced.

6 Leave to appeal was granted on ground 1. The question of leave to appeal on ground 2 was referred to the hearing of the appeal.

7 The facts as found by the primary judge are not challenged and may be summarised in this way.

8 A's parents and her siblings, including her older sister, L, and her younger brother, T, all attended the same religious congregation as the appellant and his father.

9 The appellant and L formed a relationship and became boyfriend and girlfriend. The appellant spent a significant amount of time at L's house and was regarded as a member of her family (sentencing remarks ts 2). L's parents naïvely took steps which they believed prevented the appellant and L from engaging in sexual behaviour. For example, the appellant and L were not allowed to be in any bedroom together and had to be in the company of someone else in L's family, generally T or A, or both (sentencing remarks ts 2). These measures proved ineffective. Against the wishes and religious beliefs of L's parents and the appellant's father, they became sexually intimate.

10 A appeared physically mature for her age. Over time, despite her age, of which the appellant was aware, and the relationship he had formed with L, the appellant became sexually attracted to A, and A became sexually attracted to the appellant.

11 Just as the appellant had opportunities to be alone with L, he also had opportunities to be alone with A. A was flattered by the appellant's attention to her and allowed what the sentencing judge described as 'low-grade touching' and being touched on the breasts. Once the sexual conduct began, it continued. On occasion, A 'flashed' her breasts to him (sentencing remarks ts 4).

12 In late September 2014, the appellant was involved in an off-road motorcycle accident which caused serious injuries to his lumbar vertebrae, one of his elbows and an ankle. He spent approximately three weeks in hospital and took some time to recover. The injuries left the appellant with 'severe and chronic pain' (sentencing remarks ts 9).

13 The offences for which the appellant was convicted occurred at A's home, after the accident.

14 With respect to count 3, which was the first and only act of sexual penetration, the appellant and A were in the lounge room. Neither L nor T was in the room at the time. By this point, A was used to the appellant touching her breasts and she expected that, if she and the appellant were alone together, he would do so.

15 On the occasion in question, the appellant was seated on a sofa. A got up and stood in front of him, expecting the appellant to touch her. Instead, he quickly pulled her pants and underwear down, fondled her around her bottom and then inserted a finger into her vagina. The penetration was very brief, and surprised and shocked A. A asked the appellant what he had done. He pulled her pants back up and then asked her, 'Can I lick your pussy?' A laughed. The sentencing judge thought this was perhaps because A was so surprised by what had occurred. The appellant's conduct was risky, given that there were other members of A's family in the house, but by that time the appellant was, as her Honour found, quite used to taking risks when members of her family were at home (sentencing remarks ts 6). After this incident, the appellant and A continued to engage in the type of sexual behaviour described in [11].

16 Count 4 occurred on a later occasion. It was in fact the last occasion on which the appellant and A engaged in sexual behaviour. The offence occurred either in the lounge room or the family room at a time when A's family were getting ready to go to a party. The appellant was sitting on a couch talking to a friend of his by mobile telephone. A went and sat next to him, expecting him to touch her breasts. As she expected, the appellant put his hands underneath her T-shirt and bra and touched her on the breasts.

17 A short time after this incident, A told a friend what had been going on between her and the appellant. A also told other friends what had occurred. In due course, A told her parents. Her Honour found that it took a deal of courage for A to disclose what had happened, having regard to the hurt the disclosure caused to L and to her family. The disclosure ended the appellant's relationship with L (sentencing remarks ts 7).

18 The learned sentencing judge found that A consented to the touching on her breast (count 4), but she did not consent to being digitally penetrated.

19 Her Honour found that the act of digital penetration occurred in a short space of time with no build up 'because there was no safe opportunity for that to occur' (sentencing remarks ts 8). Her Honour found that the act of penetration was momentary (ts 379). Her Honour observed that A was not so traumatised by the incident that it turned her against the appellant.

20 It is clear from the victim impact statement that A has lost her joy in life and often feels that things are pointless. It is also clear that A feels guilty and has been embarrassed and humiliated by what occurred. She feels her family is not as close as it was. She views all boys in a negative light.

21 As we have said, at the time of the offending, the appellant was 18 years of age. He was 20 when he was sentenced. Her Honour described him as a first offender. The appellant's parents separated when he was very young, after which he was brought up by his father (sentencing remarks ts 9).

22 The appellant left school in year 11 and commenced a plumbing and gas apprenticeship which was interrupted by the injuries he received in the off-road motorcycle accident we mentioned earlier. Her Honour expressed the view that there was no reason to think that the appellant was not 'generally employable' or willing to work hard (sentencing remarks ts 10).

23 Her Honour found that the appellant was, at the time of the offending, immature (sentencing remarks ts 9). She said she took into account that, at the time of the offending, the appellant was enduring 'both severe and chronic pain' which she said probably made him more vulnerable to impulsive behaviour that made him feel good (sentencing remarks ts 9). She acknowledged that the appellant had the support of his father which would help his prospects of rehabilitation (sentencing remarks ts 10, ts 13).

Her Honour's imposition of terms of immediate imprisonment

24 Her Honour observed that the usual disposition for sexual penetration of a child is a term of immediate imprisonment, the dominant sentencing consideration being the protection of children who are too immature to appreciate all of the implications of engaging in sexual activity. She found that A was too immature to anticipate the consequences of the appellant's sexual behaviour with her.

25 Her Honour referred to the adverse consequences which the offending has had on A. She found that the appellant 'used' A for his own sexual gratification and that he acted selfishly (sentencing remarks ts 9).

26 It was noted that, because the appellant took the matter to trial, he was not entitled to the discount he would have received had he pleaded guilty. Her Honour found that there was no evidence of remorse, particularly in light of the thrust of the cross-examination of A at trial which was to the effect that she had fabricated the allegations against the appellant. Her Honour also observed that there was no evidence which would enable her to have found that the appellant had developed insight as a result of his offending (sentencing remarks ts 11).

27 Her Honour regarded the appellant's youth and immaturity as powerful mitigating factors. She took into account his good antecedents and his prospects for the future.

28 After coming to the conclusion that a term of imprisonment was the only appropriate disposition (a conclusion which the appellant's counsel at the time of sentencing conceded), she turned to consider whether it was possible to suspend the term. In doing so, she noted that, although the usual disposition for an offence of sexual penetration of a child is a term of immediate imprisonment, such a sentence is not inevitable. Her Honour gave examples where the usual disposition might not be appropriate, including where two young people are involved in a mutual relationship and failed 'to respect the age of consent', particularly where the girl in the relationship is close to the age of consent (sentencing remarks ts 12). Her Honour referred to the cases of Pallister v The State of Western Australia [No 2] [2015] WASCA 221 and Riggall v The State of Western Australia [2008] WASCA 69; (2008) 37 WAR 211, but said that those cases were different to the case at hand.

29 The learned sentencing judge observed that A was well short of the age of consent. She said that this was not a case where 'the two of you simply became impatient and acted on your sexual attraction before the young girl turned 16' (ts 384). Her Honour said that the appellant 'just fancied A' (sentencing remarks ts 12).

30 Her Honour said that there was 'a vast difference' between a person's age at 13 and at 18 and that, despite the popular belief that young girls are more mature than young men, it could not reasonably be said that A was more mature than the appellant (sentencing remarks ts 13).

31 Her Honour concluded her sentencing remarks by saying that it was inappropriate to suspend the terms of imprisonment, but that she would make the terms 'as short as possible to achieve the aims of specific and general deterrence while passing a sentence appropriate to [the appellant's] youth and prospects of rehabilitation' (sentencing remarks ts 13).

32 In support of ground 1, Mr Watters, on behalf of the appellant, submitted that, in effect, the imposition of an immediate term of imprisonment for the offences was unreasonable and plainly unjust, having regard to the appellant's youth and immaturity, and, with respect to the offence of sexual penetration, that it was momentary, isolated, impulsive and opportunistic. It was further submitted that the appellant had good antecedents and there was little prospect that he would reoffend. In all of these circumstances, counsel for the appellant submitted that it was not open to her Honour to impose an immediate term of imprisonment.

33 With respect to ground 2, Mr Watters submitted that, if ground 1 was not made out, this court should, having regard to all of the factors to which he had referred, reduce the term of imprisonment imposed for the offence of sexual penetration to something in the order of 1 year.

34 Mr Fox, on behalf of the respondent, submitted that it was well open to her Honour to impose a term of immediate imprisonment in this case, despite the appellant's youth, good antecedents and good prospects. Mr Fox submitted that the offence of sexual penetration was serious. He emphasised A's age at the time that it occurred without the complainant's factual or legal consent. He observed that the appellant did not have the advantage of mitigating circumstances such as a plea of guilty or remorse. It was submitted that, if ground 1 was not made out, this court should not interfere with the length of the term of immediate imprisonment imposed for the offence of sexual penetration without consent.

General principles applicable to appeals against sentence

35 The discretion conferred on a sentencing judge is fundamentally important. This court is not authorised to merely substitute its opinion on a sentence for that of the sentencing judge: Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665 [15].

36 This court's jurisdiction to intervene is only enlivened when an appellant demonstrates that the sentencing judge erred in the exercise of the sentencing discretion. Error may be express or implied. The grounds relied upon by the appellant allege implied error. That is, although it is not possible to discover the exact nature of the error, the end result is so unreasonable or unjust that the court must conclude that a substantial wrong has occurred: House v The King [1936] HCA 40; (1936) 55 CLR 499, 505. Relevantly to ground 1, a sentence may be manifestly excessive because the wrong type of sentence has been imposed: Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321 [6].

Sentencing for offences contrary to s 321(2) of the Code

37 The relevant general principles of sentencing are set out in pt 2 of the Sentencing Act 1995 (WA). Section 6(1) lays down the fundamental sentencing principle that a sentence imposed on an offender must be commensurate with the seriousness of the offence. Section 6(2) provides that the seriousness of an offence must be determined by taking into account the statutory penalty for the offence; the circumstances of the commission of the offence, including the vulnerability of any victim of the offence; any aggravating factors and any mitigating factors. Section 6(4) of the Sentencing Act provides that a court must not impose a sentence of imprisonment on an offender unless it decides that the seriousness of the offence is such that only imprisonment can be justified or the protection of the community requires it.

38 Section 76 of the Sentencing Act provides, relevantly:

(1) A court that sentences an offender to a term of imprisonment, or to an aggregate of terms of imprisonment, of 60 months or less may order that the whole of the term or terms be suspended for a period set by the court; but not more than 24 months.

(2) Suspended imprisonment is not to be imposed unless imprisonment for a term or terms equal to that suspended would, if it were not possible to suspend imprisonment, be appropriate in all the circumstances.

39 Similarly, s 81(1) of the Sentencing Act provides that a prescribed court that sentences an offender to a term of imprisonment, or to an aggregate of terms of imprisonment, of 60 months or less may order that the whole of the term or terms be suspended for a period set by the court, but not more than 24 months, subject to certain conditions. Section 81(2) provides that conditional suspended imprisonment is not to be imposed unless imprisonment for a term or terms equal to that suspended would, if it were not possible to suspend imprisonment, be appropriate in all the circumstances.

40 The limit of 5 years specified in s 76(1) and s 81(1) reflects Parliament's view that if an offender is sentenced to a term of imprisonment, or to an aggregate of terms of imprisonment, in excess of the specified limit, the offending will be of an order of seriousness which precludes suspension or conditional suspension.

41 The limit of 5 years also reflects Parliament's view that a term of imprisonment, or an aggregate of terms of imprisonment, may appropriately be suspended even though the offender has committed an offence or offences that are of sufficient seriousness as to warrant a sentence or total sentence of 5 years' imprisonment.

42 Pursuant to s 39(2) and s 39(3) of the Sentencing Act, a court must not impose a term of immediate imprisonment unless satisfied, having regard to the principles in div 1 of pt 2, that it is not appropriate to impose suspended or conditionally suspended imprisonment. A sentencing judge must be positively satisfied that it is not appropriate to suspend or conditionally suspend a term of imprisonment before the term can be ordered to be served immediately. The discretion to suspend or conditionally suspend a term of imprisonment is not confined by considerations relating to rehabilitation: see Dinsdale [18], [26], [84].

43 It is relevant in considering the grounds of appeal in this case to have regard to comparable cases for the purposes of ensuring broad consistency in the sentencing of offenders and to have regard to the sentencing principles they establish.

44 The standards of sentences customarily imposed for offences contrary to s 321(2) have been discussed in several cases in this court. For example, by Wheeler JA in JAF v The State of Western Australia [2008] WASCA 231; (2008) 190 A Crim R 124; by Steytler P in Simon v The State of Western Australia [2009] WASCA 10; by Buss JA in The State of Western Australia v SJH [2010] WASCA 40; (2010) 200 A Crim R 228 and, most recently, again by Buss P in Tapper v The State of Western Australia [2016] WASCA 140.

45 The purpose of s 321 of the Code is not only to protect children from sexual predators, but also to protect children from themselves: Simon [20]. There is no tariff for offences contrary to s 321(2) of the Code. However, as a matter of fact, the cases reveal that generally a sentence of immediate imprisonment is imposed for such an offence: CJ v The State of Western Australia [2009] WASCA 42 [14]. Despite this, even if a term of immediate imprisonment is generally the appropriate sentence, a sentencing judge is not relieved of his or her obligation to assess whether, having regard to all of the relevant sentencing factors in the particular case, it is appropriate to suspend the term of imprisonment: Collins v The State of Western Australia [2007] WASCA 108 [21].

46 There have been cases decided by this court where sentences other than immediate imprisonment have been upheld or have been imposed for offences contrary to s 321(2): see, for example, CJ v The State of Western Australia; Simon v The State of Western Australia; Sunfly v The State of Western Australia [2009] WASCA 22; Brand v The State of Western Australia [2011] WASCA 269; GNR v The State of Western Australia [2015] WASCA 5 and Pallister [No 2].

47 It is unnecessary to discuss the facts and circumstances of these cases. However, as pointed out by counsel for the respondent, in none of these cases did the offenders go to trial, nor was there a finding that the act or acts of penetration occurred without factual consent. That said, all of these cases involved an act or acts of sexual intercourse. The offenders in CJ, Pallister [No 2], Sunfly and Brand were older than the appellant in this case.

48 Recently, this court has considered two cases involving offences contrary to s 321(2) of the Code. In each case, there was a finding that the appellant had committed the offence without the factual consent of the victim. In Gavenlock v The State of Western Australia [2014] WASCA 36, the appellant, who was at the time of the offending 21 or 22 years of age, was convicted after trial of five offences of sexual offending against a child who was aged either 13 or 14, two of which were offences contrary to s 321(2) of the Code. One of the acts of sexual penetration involved an act of sexual intercourse with the victim. The other was an act of digital penetration on a separate occasion. At first instance, a total effective sentence of 4 years 6 months' immediate imprisonment was imposed. This court held that the sentence infringed the first limb of the totality principle, and substituted a total effective sentence of 3 years' immediate imprisonment.

49 In Floresta v The State of Western Australia [2015] WASCA 93, the appellant, who was 18 years old, pleaded guilty to one count of sexual penetration of a child aged 14. A trial of the issues took place to determine whether the act occurred without the victim's factual consent. The sentencing judge found that the offence had occurred without factual consent. The sentencing judge found that the appellant closed and locked a bedroom door behind the victim. He then forced her onto a bed, removed her shorts and underwear, prised her legs open and had sexual intercourse with her against her will. While doing so, the victim struggled and told the appellant to stop, without success. The sentencing judge imposed a sentence of 2 years 6 months' immediate imprisonment. Leave to appeal against this sentence was refused.

50 The offending in both of these cases was considerably more serious than the offending in the present case.

51 The focus of ground 1 of the appeal was on the term of immediate imprisonment imposed for the offence of sexual penetration of A. It was not suggested that had the appellant only been convicted of the indecent dealing offence, a term of immediate imprisonment was the only appropriate disposition for that offence.

52 There was no challenge to her Honour's findings as to the facts of the sexual penetration offence. The offence carries a maximum penalty of 14 years' imprisonment. Her Honour was, with respect, correct to refer to it as a serious offence, particularly having regard to A's age, the matters in the victim impact statement and that the penetration occurred, as a matter of fact, without her consent. It must also be acknowledged that there was an absence of mitigating factors such as a plea of guilty, remorse and demonstrated insight into the offending.

53 The critical question in this case is whether it was reasonably open to the sentencing judge to be positively satisfied that suspended or conditionally suspended imprisonment were not appropriate sentencing options having regard to all relevant sentencing principles and considerations and in all the circumstances of the case. In our view, it was not reasonably open for the sentencing judge to be positively satisfied that a sentence of suspended or conditionally suspended imprisonment was not appropriate.

54 The offence was the first and only time the appellant sexually penetrated A in the course of their association. The offence itself was spontaneous, momentary and did not have the serious features sometimes present in this type of offending, such as a finding of grooming by the appellant, actual or threatened violence, added perversion, an abuse of trust or a wide age disparity. While we accept that there is no hierarchy of sexual penetration, a court sentencing in respect of sexual penetration cannot simply assume that all such offences are of equal seriousness: C v The State of Western Australia [2006] WASCA 261 [34], [35]. Acknowledging that some acts of digital penetration may be more serious than penile penetration, digital penetration is generally regarded as less serious than penile penetration: C [28].

55 While A's young age was aggravating, it cannot be overlooked that the appellant himself was barely an adult and was immature. Further, the offending occurred in the context of a history of factually consensual and furtive sexual behaviour which both A and the appellant found exciting at the time. It occurred at a time when, by reason of the injuries he had suffered, the appellant was, as her Honour found, more vulnerable to impulsive behaviour.

56 The appellant's youth and immaturity were important mitigating factors. So too were his good antecedents. Also, on the material before her Honour, it appears unlikely that he will reoffend. Further, his prospects for rehabilitation appear positive. It is a serious step for a court to impose a term of immediate imprisonment on young or youthful offenders of prior good character. This is because of the potentially destructive effect that immediate imprisonment can have on the life of a young person. Of course, there are circumstances where the seriousness of the offending requires the imposition of immediate imprisonment even for young or youthful offenders of prior good character: Fogg [13].

57 The finding of absence of factual consent in the case of count 3 must be understood in its context. A was standing in front of the appellant expecting him to touch her breasts, a form of sexual behaviour to which she consented in fact. A was not expecting the kind of sexual conduct which occurred. This was not a case where force or coercion was used, or where an offender approaches a victim who is neither expecting nor desirous of receiving any physical contact.

58 That the appellant exercised his right to plead not guilty is not an aggravating factor, although it may lead to a conclusion that various mitigating factors are absent. The absence of those mitigatory factors did not in all the circumstances of the case justify a conclusion that a suspended or conditionally suspended sentence was not appropriate.

59 We have had regard to the previous cases, with some comparable features, which we have referred to earlier. As a matter of fact, it is an exceptional case where a term of immediate imprisonment is not imposed for an offence contrary to s 321(2) of the Code. However, in the circumstances of this case, particularly having regard to the spontaneous and momentary nature of the offence, the appellant's youth and immaturity, his good antecedents, and his favourable future prospects, the point had not been reached where it was inappropriate to suspend or conditionally suspend the term of imprisonment imposed by her Honour. In our opinion, and with great respect to the sentencing judge, it was not reasonably open to the sentencing judge to be positively satisfied that suspended or conditionally suspended imprisonment was not an appropriate sentencing option. Section 39(3) of the Sentencing Act therefore precluded the imposition of immediate imprisonment. Immediate imprisonment was not the appropriate disposition in this case. Ground 1 had been made out. The sentence was manifestly excessive; that is, it was unreasonable and plainly unjust. The wrong type of sentence was imposed. The sentence of immediate imprisonment should be set aside and substituted with a suspended imprisonment order.

60 Ground 2 of the appeal impugns the length of the sentence on count 3 rather than its type. The ground may be dealt with shortly. There is no merit in it. Having regard to the maximum penalty for the offence, reasonably comparable cases, the circumstances of the offending and the appellant's personal circumstances, the length of the sentence on count 3 was not manifestly excessive. Leave to appeal should be refused.

61 This court has all the materials necessary to resentence the appellant. Having regard to the relevant sentencing principles and considerations and all of the circumstances of the case, including the fact that the appellant has served about three and a half months of the sentence imposed by her Honour, the appropriate sentence on count 3 is 10 months' imprisonment suspended without conditions for 10 months. The sentence on count 4 should be 4 months' imprisonment, also suspended without conditions for 10 months, to be served concurrently with the sentence on count 3.