Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA

Criminal law - Sexual offences - Three counts of penile sexual penetration, one count of indecent dealing and one count of indecently recording indecent dealing - Appellant 23 years - Complainant 14 years - Consensual sexual acts - Effective sentence 4 years' imprisonment - Whether manifestly excessive

Sentences on counts 1, 3, 4 and 5 to be served concurrently

Sentences on counts 1 and 2 to be served cumulatively

1 STEYTLER P: I have had the advantage of reading the judgments of McLure and Miller JJA. I agree with them. They reflect my own reasons for joining in the decision to allow the appeal and make the orders referred to by Miller JA.

2 McLURE JA: The appellant successfully appealed against his total sentence on four counts of sexual offending against a 14-year-old female complainant. The details of the offending, the grounds of appeal and the appellant's personal background are set out in the reasons for judgment of Miller JA. These are my reasons for joining in the orders made by the court at the hearing of the appeal which had the effect of reducing the appellant's total sentence from 4 years' imprisonment to 2 years and 9 months' imprisonment.

3 There can be no doubt that the offence of sexual penetration of a child over the age of 13 years and under the age of 16 years contrary to s 321(2) of the Criminal Code (WA) is serious. However, the seriousness of the circumstances of such an offence can differ widely. Absence of consent is not an element of the offence. However, proven absence of consent would seriously aggravate the offending and the culpability of the offender. In this case, the sexual conduct was consensual.

4 The purpose of s 321 of the Code is to protect children: Deering v The State of Western Australia [2007] WASCA 212. The seriousness of the offending is increased if a person abuses a position or situation that enables that person to influence, persuade, pressure, force, manipulate or otherwise take advantage of a child for the purpose of facilitating the commission of the offence. Such people are sexual predators who prey on and exploit the vulnerability of their child victims.

5 The purpose of s 321 is not only to protect children from sexual predators but also to protect children from themselves, regardless of the level of their maturity and sexual experience: Deering [17].

6 It is significant that there was a 9-year age difference between the appellant and the complainant. However, there was no evidence that the appellant positively exploited any influence or vulnerability for the purpose of committing the offences. Rather, on his statement of the facts, he was in effect presented by the complainant with opportunities which he availed himself of. It is against that background that the appellant expressed no remorse or concern for the impact the offences may have had upon the complainant.

7 The circumstances of the appellant's offending are towards the lower end of the scale of seriousness of crimes of this nature. Further, the appellant ceased any sexual contact with the complainant after he learnt she was aged 14 not 15, pleaded guilty at an early stage and, although he had a prior record, he had not previously been sentenced to a term of imprisonment and had no prior convictions for offences of a sexual nature. On the other hand, his lack of insight into the seriousness of the offence must also be taken into account in determining the appropriate sentence.

8 The sentence of 2 years' imprisonment for each count of penile penetration is in the circumstances of this case at the upper end of the appropriate sentencing range but not manifestly excessive. However, a total sentence of 4 years is disproportionate to the criminality of the conduct as a whole having regard to all the circumstances of the case. A sentence of 2 years and 9 months is all that is fairly necessary to achieve all of the recognised sentencing objectives including punishment, retribution and deterrence.

9 MILLER JA: At the hearing of this appeal, the court unanimously allowed the appeal, and varied the sentencing judge's order for cumulation of sentence. It did so by quashing the order for cumulation on counts 1 and 4 and substituting, in lieu thereof, cumulation on counts 1 and 2. The consequence was to impose an aggregate sentence of 2 years 9 months' imprisonment in lieu of the 4 years' imprisonment imposed by the sentencing judge. These are my reasons for joining in that decision.

10 The appellant was charged on an indictment containing five counts. Three were counts of penile sexual penetration of a child over the age of 13 years and under the age of 16 years (Criminal Code s 321(2)), one was a count of indecent dealing with a child over the age of 13 years and under the age of 16 years by fondling her breasts (Criminal Code s 321(4)), and one a charge of indecently recording of a child over the age of 13 years and under the age of 16 years by recording the incident of indecent dealing with her on a mobile telephone (Criminal Code s 321(6)). The three counts of penile sexual penetration were punishable by imprisonment for 14 years. The offences of indecent dealing and indecently recording an incident of indecent dealing were each punishable by imprisonment for 7 years.

11 The appellant was arraigned in the District Court at Kalgoorlie on 17 September 2007 and he pleaded guilty to all counts on the indictment. He was sentenced on 25 September 2007 to 24 months' imprisonment on

each of the counts of penile penetration, and 9 months' imprisonment on each of the counts relating to indecent dealing, and indecently recording indecent dealing. Two of the sentences for penile penetration (counts 1 and 4) were ordered to be served cumulatively and the balance of the counts ordered to be served concurrently. The result was an effective sentence of 4 years' imprisonment. It was backdated to 11 May 2007. There was an order for eligibility for parole.

12 On 13 December 2007, Wheeler JA granted the appellant leave to appeal on four of five appeal grounds. This was contained within a notice of amended grounds of appeal filed and served on 6 December 2007. Those grounds (without particulars in relation to ground 5) are as follows:

1. The Learned Sentencing Judge erred in imposing a period of 2 years imprisonment for each count of penile penetration.

(a) There was no seriously aggravating features of the case which required sentences of the length imposed for the penile penetrations in the present case.

(b) A failure to take into account the fact that the offence occurred over a very short period of time.

1. The Learned Sentencing Judge erred in imposing a period of 18 months imprisonment for the count of indecent dealing.

(a) The sentence of 18 months imprisonment was well outside the range of sentences usually imposed for offences of this type in the circumstances of the present offending.

(b) There were no seriously aggravating features of the case which required a sentence of the length imposed for the indecent dealing in the present case.

1. The Learned Sentencing Judge erred in ordering that the sentence in respect of counts 1 and 4 on the Indictment were to be cumulative.
2. The Learned Sentencing Judge erred by failing to adjust the overall head sentence ultimately imposed in accordance with the totality principle so as to adequately reflect the objective criminality of the offending.

13 There is no transcription of the prosecutor's statement of the facts in the District Court at Kalgoorlie. The recording of proceedings begins only during defence counsel's submissions in relation to sentence. The following facts are taken from the sentencing judge's sentencing comments.

14 The appellant was a 23-year-old apprentice cabinet maker who resided at Kambalda West. The complainant was a 14-year-old girl who was employed by the appellant to clean the premises where he resided. The appellant believed that the complainant was 15 years of age, but knew that she was under the age of 16 years.

15 Over a period of approximately six weeks, between 15 March and 9 April 2007, whilst the complainant was at the appellant's premises for the purpose of cleaning the appellant's house, she engaged in consensual sexual intercourse on two occasions. There was an issue as to whether a third occasion of sexual intercourse was consensual or not. The complainant said that she was forced to have sexual intercourse on the third occasion but the appellant said that the act of intercourse was consensual. The sentencing judge did not order a trial of the issue, but accepted for sentencing purposes that the final count of penile penetration was consensual.

16 The counts of indecent dealing and recording an incident of indecent dealing occurred on an occasion on 7 April 2007 when the complainant had been topless but then put on her bra. The appellant rubbed her breasts and at the same time recorded the incident on his mobile telephone.

17 The sentencing judge first reviewed the facts of the case. He then said that there were aggravating features present in relation to the offences committed by the appellant. The complainant was a young girl who was apparently infatuated with the appellant. The appellant's conduct was opportunistic. He had engaged her to clean his house in order to take advantage of her. Further, the conduct was not 'a one off occurrence', but occurred over a period of time with the appellant well knowing that the complainant was under the age of 16 years.

18 The sentencing judge noted that the appellant had a prior record of convictions. This did not aggravate the circumstances of the offences, but meant that there were no mitigating circumstances of prior good character.

19 The convictions of the appellant included drug convictions in 2006; stealing; obstructing public officers (three counts); disorderly behaviour in public (two counts); and assaulting a public officer (two counts). They occurred between July 2006 and May 2007. Each resulted in a fine, with the exception of the offence of stealing for which the appellant was placed on a community based order. He breached this order, and was fined in relation to the original offence on 23 May 2007.

20 The sentencing judge found that because the appellant's mother and father had separated at a time when the appellant was very young, the appellant had no further contact with his biological father. This was a cause of some concern and distress to the appellant. He was at the time of sentencing a single man who had problems with substance abuse (both drugs and alcohol). These were linked to his past antisocial behaviour.

21 Pre-sentence and psychological reports were provided to the sentencing judge. From those reports his Honour noted that the appellant was described as defensive and without insight into the offences he had committed. It was thought that he had a medium to high risk of reoffending and he had a negative, disrespectful, and dismissive attitude towards females.

22 Reference to the pre-sentence report reveals that the appellant told the writer of that report that he knew the complainant was 'not the legal age'. He expressed no remorse or concern for the complainant, or for any impact that the offences may have had upon her.

23 The appellant's attitude to previous supervision was recorded in the pre-sentence report. The community based order imposed in August 2006 was breached because of a failure to complete community work and a failure to report for supervision on a number of occasions. The appellant's attitude as recorded by his supervising officer was that he did not 'care about his order and thinks that it is a waste of time'.

24 The summary in the pre-sentence report describes the appellant as a man who had failed to deal with issues from his childhood, instead choosing 'to hide in a haze of substance abuse'. It concludes that he has refused to take responsibility for his offending behaviour and has instead chosen to rebel against authority by repeatedly ignoring restrictions placed upon himn and continuing to reoffend. However, despite an earlier negative attitude, he appeared by September 2007 to be motivated to address issues and take responsibility for his actions. It was thought necessary that he should gain some insight into his behaviour to assist him to rehabilitate.

25 The psychological report contains conclusions very similar to those set out in the pre-sentence report. The psychometric testing of the appellant revealed the appellant to be a 'damaged individual who has resorted to substance abuse and sexual activity as pacifiers for unmet needs and emotional tensions of childhood origins into which he has no insight'. The appellant has a three in ten chance of sexual reoffending within a five-year period. This puts him in the medium-high risk category and he has significant treatment needs by way of distorted attitudes, problems in social/emotional functioning, and self-management deficits.

26 The sentencing judge impressed upon the appellant that the relevant law was there to protect young children. He noted that the appellant was nine years older than the complainant and said that it was up to him 'to be vigilant and not allow such things to occur'. In imposing sentence he said:

To arrive at a proper sentence, I have to have regard to punishment for the offence, and the public's expectations and conscience, and the deterrent effect upon you and others. Public and persons in a close and vulnerable position, such as this complainant was, are entitled to have an expectation of safety, and are entitled to be and to feel safe and protected from acts such as this. That expectation should be upheld. It is all too prevalent in society that young children are in the company of older persons which does involve positions of trust, and often, as in this case, ascendancy and abuse does occur.

27 The sentencing judge gave consideration to personal and general deterrence, noting particularly that the reports he had received required a sentence that reflected personal deterrence. His Honour considered all sentencing options open and appreciated that a sentence of imprisonment was one of last resort, and could only be imposed if the seriousness of the offence justified it, or the protection of the community required it. Consideration was given to the appellant's plea of guilty, but otherwise the sentencing judge was unable to find anything by way of remorse in the appellant's conduct or attitude.

28 The sentencing judge noted that there was no submission that anything other than a sentence of imprisonment to be served immediately was appropriate. Sentences of 24 months' imprisonment on each of the counts of penile penetration and 9 months' imprisonment on each of the other counts were then imposed. By ordering the sentences on counts 1 and 4 (counts of penile penetration) to be served cumulatively, the effective sentence was 4 years' imprisonment.

29 This ground contends that the sentencing judge erred in imposing a sentence of 2 years' imprisonment for each of the counts of penile penetration. It is contended that there were no seriously aggravating features of the case which required sentences of that length, and there was a failure on the part of the sentencing judge to take into account the fact that the offences had occurred over a 'very short period of time'.

30 The submissions on this ground contended that an appropriate term for each of the counts of penile penetration would have been 18 months' imprisonment. A number of cases were referred to.

31 When the sentencing judge imposed sentence in this case, he did not have the benefit of the decision of this court in Deering v The State of Western Australia [2007] WASCA 212. This was a case which was similar in some ways. Deering pleaded guilty to one count of digital penetration of a child aged between 13 and 16 years and four counts of penile penetration of the same child contrary to s 321 of the Criminal Code. He was initially sentenced to 18 months' imprisonment in relation to the offence of digital penetration, and 3 years 6 months' imprisonment in relation to each of the acts of penile penetration.

32 He was 23 years of age and had formed a relationship with a 13-year-old girl, in whose house he was living. The acts occurred over the period of approximately 10 months and on a number of occasions the complainant invited and encouraged sexual intercourse. The relationship only concluded when the complainant's mother insisted that the complainant contact the police. Deering appeared to genuinely care for the complainant and a number of referees spoke positively of him. He pleaded guilty on the fast-track system. He had never previously been in prison.

33 The Court of Appeal considered that sentences of 4 years' imprisonment for each of the counts of penile penetration would have been appropriate prior to adjustment for the fast-tracked plea and for the transitional provisions [22]. Allowing approximately 30% for the fast-track plea and applying the transitional provisions led to sentences of 1 year 10 months for each of the counts of penile penetration.

34 In the present case, the sentencing judge imposed sentences of 4 years' imprisonment in relation to each of the counts of penile penetration and then reduced those sentences by 25% to take account of the appellant's early plea of guilty. After applying the transitional provisions, the resulting sentences were 2 years' imprisonment in each case.

35 Counsel for the appellant was critical of the sentencing judge's emphasis on the appellant's 'position of ascendancy and influence'. There may have been some over-emphasis of this factor, but there was a nine-year age difference between the appellant and the complainant, and that was significant.

36 Although the sexual acts in question were all consensual, there was, nevertheless, a need for a deterrent sentence, and the sentences of 2 years for each of the counts of penile penetration were within range. I would therefore dismiss the first ground of appeal.

37 This ground contends that the sentencing judge erred in imposing a sentence of 18 months' imprisonment for the offence of indecent dealing. The ground is in error, because the figure of 18 months was that taken by the sentencing judge as the starting point for the offence of indecent dealing. After a deduction of 25% for the plea of guilty and application of the transitional provisions the sentence became 9 months. The ground was not argued and it requires no further attention.

38 These two grounds can be dealt with together. They relate to the decision of the sentencing judge to order the sentences on counts 1 and 4 on the indictment to be served cumulatively. The contention of the appellant is that the aggregate sentence did not properly reflect the objective criminality of the offending.

39 The orders for cumulation did, in my opinion, result in a sentence which was, in all the circumstances, manifestly excessive. This was not a case in which there was any element of physical abuse, and it was important to appreciate that the sexual activity that occurred between the appellant and the complainant was, although forbidden by law, consensual. In Deering Wheeler JA made the following observations which are particularly pertinent to this case:

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 The Queen [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]

40 In Deering, the court considered that each of the counts of penile penetration should result in a sentence of 1 year 10 months' imprisonment, to be served concurrently. A sentence of 8 months' imprisonment for the offence of digital penetration was ordered to be served cumulatively upon those sentences. This gave an aggregate term of 2 years 6 months.

41 In the present case, it seems to me that an appropriate order for cumulation would have been to have ordered that each of the sentences of 2 years' imprisonment for penile penetration should have been served concurrently with the sentence of 9 months imposed for the count of indecent dealing to be served cumulatively upon those sentences. The sentence of 9 months for recording the act of indecent dealing should remain concurrent. The aggregate sentence would thus be 2 years 9 months' imprisonment. This, in my opinion, would 'fairly and justly reflect the totally criminality of the offender's conduct': Jarvis v The Queen (1993) 20 WAR 201, 207 (Ipp J).

42 I therefore consider that grounds 4 and 5 of the grounds of appeal should be allowed and there should be orders that:

(b) the order of the sentencing judge cumulating the sentences on counts 1 and 4 should be set aside and in lieu thereof the sentences imposed on counts 1, 3, 4 and 5 should be ordered to be served concurrently; and

(c) the sentences on counts 1 and 2 should be served cumulatively so as to give an aggregate sentence of 2 years 9 months' imprisonment.