R v Smith [2004] WASCA 44

Sentencing Act, s 6(4)

1 WHEELER J: I have had the advantage of reading in draft the reasons for decision of McLure J. I agree with those reasons. I have only a few brief observations which I would wish to add.

2 In looking at the matters which it suggests made the offences particularly serious, the Crown refers to a number of factors. In my view, the Crown's submission misrepresents or overstates many of them. I turn briefly to those in respect of which it seems to me the Crown has made such an error.

3 It is said that one offence, being count 3, involved a "relatively significant degree of perversion" as the respondent rubbed his penis on the complainant's cheek and nose. In my view, the suggestion that there is an aggravating factor of "perversion" should only be made where the conduct involved plainly falls outside that which would be regarded by members of the community generally as within a range of usual sexual behaviour. I cannot accept that the respondent's conduct in this case was so unusual as to be likely to be regarded by the majority of members of the community as "perverted" had it been done in the context of consensual sexual encounter.

4 The Crown refers to the disparity in age between the complainant, who was 17, and the respondent who was 27, and to the "position of trust" which it alleges the respondent occupied in relation to the complainant. In my view, disparity in age is only a feature of significance where there is an element of corruption of a minor or young person, or where the disparity is such as to give rise, in all the circumstances of the case, to an apparent imbalance of authority or to a relationship of trust. Those factors do not appear to be present in this case, and the mere disparity in age is of no relevance.

5 So far as the "position of trust" is concerned, I agree with what has been written by McLure J. I would add that an abuse of a position of trust will generally be of significance for one of two reasons. It may be that it involves an abuse of a position of power or authority which one person has over another, such as a school teacher and a pupil. The aggravating factor is the misuse of that position. Alternatively, it may be that because of some relationship between them the complainant reposed actual trust and confidence in the offender, so that the effect upon the complainant is likely to be more serious because the offender's conduct would, in addition to its other ramifications, tend to cause her to lose confidence in her own judgment and to cause difficulties in her relationships with others whom she might be disposed to trust. The two types of breach of trust

may overlap. In the present case, there was no position of authority which the respondent occupied in relation to the complainant. Nor did the complainant repose actual trust and confidence in him; indeed, it appears from the papers before us that she had not particularly liked him, even before these offences.

6 I do not wish for a moment to minimise the distress which these offences must have caused the complainant. However, I draw attention to what appears to me to be a distinct exaggeration by the Crown of the aggravating features of this case, because it is important to recall that there is no tariff for sexual offences, and that any attempt to adhere to a tariff would tend to result in sentences which might be too severe in some cases, and too lenient in others. It is of critical importance in each case to identify the aggravating or mitigating aspects of the individual case.

7 Finally, I mention that there was an additional factor, not taken into account by the learned sentencing Judge. That was, that the respondent had by the time of sentence already spent some 51 days in custody since the date of his arrest. While that plainly would not, on its own, have been enough to justify the suspension of the term of imprisonment imposed, it is an additional reason for declining to interfere with that sentence.

8 MCLURE J: This is a Crown appeal against sentence. The respondent was convicted after trial of four counts of indecent assault and one count of sexual penetration. In particular, the respondent was convicted of indecent assault by simulating sexual intercourse while kissing the complainant's neck (count 1), indecent assault by squeezing the complainant's breasts (count 2), indecent assault by touching the complainant's face with his penis (count 3), sexual penetration without consent by penetrating her vagina with his finger (count 4) and indecent assault by squeezing the complainant's buttocks (count 5).

9 The respondent was sentenced to 12 months imprisonment on each count of indecent assault and 2 years' imprisonment on the count of sexual penetration. The sentences were ordered to be served concurrently and suspended for 2 years. The total effective sentence was 2 years' imprisonment, suspended for 2 years.

10 The offences took place at a house in Rivervale in which the complainant was then living with her boyfriend and sharing with the respondent and his partner. At the time of the offences, the complainant was aged 17 and the respondent aged 27.

11 At the material time, the complainant and respondent were alone in the Rivervale house, their respective partners having left for work. Shortly after rising, the complainant, dressed in her night attire of pyjama bottoms and a singlet top, went to the front porch and had a cigarette. She was joined by the respondent who also had a cigarette. The complainant then returned to her bedroom and commenced to change the bed sheets. The respondent followed her into the bedroom and shortly thereafter they engaged in mutual tickling which progressed to the respondent touching the complainant's breast at which stage the complainant pushed the respondent away. Thereafter, the respondent committed the offences of which he was found guilty. The offences generally, and in particular counts 2 and 3, involved forceful behaviour by the respondent. The complainant suffered some minor physical bruising and abrasions.

12 After the commission of the offences the complainant left the Rivervale house and went by train to her grandmother's house. She returned later in the day. Prior to reaching her home she saw her boyfriend at a phone box and told him what had happened. Her boyfriend took her to the police station and she was then taken to the Sexual Assault Resource Centre for a medical examination.

13 The respondent participated in a video record of interview with police in which he denied doing any of the acts which comprised the offences. The respondent did not give evidence.

14 The Crown appeals against the sentence imposed for the sexual penetration offence (count 4) on the ground that it was manifestly inadequate. In particular, the Crown contends that the term of imprisonment should not have been suspended.

15 At the time of sentencing, the trial Judge had been supplied with a pre-sentence report and a psychological report. The respondent continued to maintain his position that he did not commit the offences, as a result of which he was identified as unsuitable for involvement in a sex offender's treatment programme.

16 In the course of his sentencing remarks, the Judge noted that the respondent had no previous convictions for sexual offences, had a very good work history, was obliged to maintain children of a previous marriage and help care for a young child of his present relationship which was described as long-term and stable.

17 After concluding that the offences were serious and warranted a jail term, the Judge considered whether the term should be suspended. He said:

"Having considered the matter and looked at the various reports available to me, I have concluded that these offences were in fact out of character and were an isolated incident in your personal history, thus, bearing in mind those matters and the mitigating factors that I have already mentioned, they have led me to decide and conclude that the gaol term should be suspended."

An appellate court is not entitled to intervene merely because it would have exercised the sentencing discretion in a manner different from the sentencing judge: Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665. However, it is entitled to intervene if a material error of fact or law is discerned in the sentencing judge's reasoning. Alternatively, error may be inferred if the result is unreasonable or unjust (commonly referred to as being either manifestly inadequate or manifestly excessive).

18 To determine whether a sentence is manifestly inadequate or excessive it is necessary to view it in the perspective of the maximum sentence prescribed by the law for the crime, the standards of sentencing customarily observed with respect to the crime, the place which the criminal conduct occupies on the scale of seriousness of crimes of that type and the personal circumstances of the offender: Chan v The Queen (1989) 38 A Crim R 337 at 342.

19 However, as stated by the High Court in Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321 at 325, manifest inadequacy is, or is not, plainly apparent and is a conclusion which frequently does not admit of amplification.

20 Under the Sentencing Act 1995 a suspended term of imprisonment is the penultimate punishment in the hierarchy of sentencing options provided, just lower in severity than the imposition of a term of imprisonment to be served immediately: Dinsdale v The Queen (supra) at 366. The Crown has to persuade this Court that a suspended sentence is outside the range of sound discretionary judgment and that only a term of immediate imprisonment is appropriate. The Crown submitted that the sentence failed to adequately reflect the seriousness of the offence and the circumstances in which it was committed including, inter alia, the age and vulnerability of the complainant and what it described as a betrayal of trust. The language used by the Crown is suggestive of an abuse by a

person in a position of power or authority or of a relationship of trust or confidence. Such a characterisation is not supported by the evidence. In the particular circumstances of this case the disparity in age between the complainant and the respondent and their shared domestic circumstances is an inadequate foundation for an inference of a relationship of authority or trust and confidence.

21 The digital penetration offence committed by the respondent attracts a maximum penalty of 14 years. It is a serious offence. Digital penetration, particularly of children under 16 (which attracts a higher maximum penalty), usually results in a period of immediate imprisonment: see R v Major [2001] WASCA 46; Ling v The Queen [2000] WASCA 129. However, not in all cases: Dinsdale v The Queen (supra). Further, some of the relevant cases were decided before a suspended term of imprisonment was an available sentencing option (Powell v The Queen, unreported; CCA SCt of WA; Library No 8928; 21 June 1991).

22 In this case the respondent's conduct was not premeditated. Rather, it followed a short period of consensual physical interaction. There was no relevant relationship of trust and confidence or vulnerability beyond that to be expected between people in shared accommodation. As found by the trial Judge, to which no objection is taken, the offences were out of character and an isolated incident. In these circumstances I am not persuaded that the trial Judge erred in imposing a suspended term of imprisonment.

23 WALLWORK AJ: This is a Crown appeal against sentence.

24 On the 18 June 2003 the respondent was found guilty of five offences against a girl who was at the relevant time 17 years of age. The respondent was 27 years of age. The offences all occurred on the same day at Rivervale.

25 The respondent was convicted of four offences of indecent assault contrary to s 323 of the Criminal Code and one offence of sexual penetration without consent contrary to s 325 of the Criminal Code.

26 Firstly, there was an unlawful and indecent assault which was a simulation of sexual intercourse whilst kissing her neck. A similar offence on count 2 involved squeezing the victim's breasts. The offence in count 3 was touching the victim's face with his penis. Count 4 involved sexual penetration of the victim's vagina by the respondent's finger.

Finally, there was an unlawful and indecent assault involving squeezing her buttocks.

27 On 7 August 2003 the respondent was sentenced to 1 year's imprisonment for each of the indecent assaults and 2 years' imprisonment on count 4, being the sexual penetration without consent. All of the sentences were ordered to be served concurrently. The learned Judge suspended the sentences for 2 years.

28 When sentencing the respondent the Judge said the fact that the respondent had pleaded not guilty and been convicted after a trial involved a lack of any remorse which was continuing. Following the convictions the respondent continued to maintain his position that he had not committed the offences. However, he was assessed as having a medium to low risk of repeating the offences.

29 As his Honour put it, all of the offences arose out of an incident in a house at Rivervale. The victim lived there with her boyfriend who was 19 years of age at the time. The respondent lived at the home with the boyfriend's sister. The evidence was that the respondent had approached the victim early one morning after the others had gone to work. After some initial discussion the respondent had followed her into the bedroom and forced his attentions on her. His Honour found that the victim at all times had tried to stop the respondent by words and physical means.

30 His Honour said that the first four offences occurred in the bedroom and the last in the bathroom when the victim went to wash her face. He found that the victim was very upset and affected by the incident and had some minor physical bruising and abrasions. He took into account the victim impact statement and noted that there was persistence involved in the offences. One factor in the respondent's favour was that he did not attempt or have sexual intercourse without the victim's consent.

31 The offences occurred on the 7 November 2001. When the victim gave evidence on 17 June 2003 she was still living with her boyfriend. She said in evidence that the two couples had been sharing a house. She had lived there for about 2 or 3 months. Everybody had moved into the house at the same time.

32 Prior to the assaults the victim had been having a cigarette on the balcony. She was dressed in her pyjamas. The respondent had joined her and had a cigarette. When she had gone back to the bedroom and was making the bed, he came into the bedroom. He had started to tickle her. She thought he was obviously just being friendly. She tickled him back. Then he started touching her breasts "but in a tickle kind of way". The victim said that she "was just like basically tickling him back and pushing him away basically." He had then pushed her down on the bed and the offences had commenced. She had pushed him away and told him to get lost.

33 After the commission of the offences the victim had left the house and gone to her grandmother's house by train. She had returned later in the day by train. Prior to reaching her home she had told her boyfriend what had happened. He had then taken her to the police station. She was then taken to the Sexual Assault Resource Centre in Subiaco. During a subsequent record of interview on 8 December 2001 the respondent denied doing any of the acts which comprised the offences. He did not give evidence at the trial.

34 His Honour said that the pre-sentence report confirmed that the respondent had no previous convictions for offences of this nature. The report noted that for reasons relating to his refusal to accept the verdict, that the respondent was not suitable for any sexual offender's treatment programme. The respondent had apparently said he would be willing if necessary to complete any programme if it got to the stage of him being formally assessed. I am not sure what that means.

35 His Honour said that the pre-sentence report confirmed that the respondent was in a long term stable relationship with a young woman with a child. After a short term of imprisonment as a result of a driving under suspension conviction the respondent had successfully completed one year's home detention. However, he had a very good work history. Also he was obliged to maintain some children of a previous marriage and to help care for the young child of his present relationship.

36 With respect to prior convictions, the respondent had a number of driving offences including failing to report an accident, careless driving and driving under suspension. He also had offences for offensive behaviour, refusing to give his name and address, and disorderly conduct.

37 His Honour said that the relevant sexual offences were serious enough to warrant a gaol term in view of their number, seriousness and the general circumstances. The question was whether the terms should be served immediately or suspended.

38 When the victim had attended the doctor after the assaults she had tender areas over both of her upper arms and a 9 centimetre liniar abrasion commencing 11 centimetres above her elbow on her left arm. There was a second liniar abrasion just underneath that abrasion being about 8 centimetres long and roughly in the same orientation. There were no injuries or trauma to the genital area.

39 His Honour said that with regard to the fact that the offences were out of character and an isolated incident in the respondent's personal history, and with the other mitigating factors, he had concluded that the terms of imprisonment should be suspended.

"3. The learned sentencing Judge erred in that the sentence imposed on count 4

(a) Failed to adequately reflect the seriousness of the offence in the circumstances in which it was committed, including:

(i) The age of the complainant.

(ii) The fact that the offence involved a betrayal of trust and breach of the complainant's security in her own home.

(iii) The vulnerability of the complainant.

(iv) The distress suffered by the complainant as a result of the offence.

(b) Failed to reflect the need for specific and general deterrence.

(c) Failed to adequately punish the respondent.

(d) Reflected an undue regard for matters personal to the respondent.

(e) Was in the circumstances so inadequate as to manifest error."

41 It was submitted that this appeal had been brought by the Crown to enable the Court to establish and maintain adequate standards of punishment for crime - R v Clarke [1996] VICSC 30; [1996] 2 VR 520 at 522 per Charles JA with whom Winneke P and Hayne JA agreed.

42 The Crown relied amongst other authorities, on the remarks of Malcolm CJ with whom Pidgeon and Franklyn JJ agreed in Coulter v The Queen, unreported; CCA SCt of WA; Library No 960507; 4 September 1996 where the Chief Justice said:

"In relation to some offences it may be possible to identify a range of sentences which have been commonly imposed. There have been cases where sentences in the vicinity of 4 years or more have been imposed in relation to the offence of digital penetration. Examples are Walley v The Queen, unreported; CCA SCt of WA; Library No 8894; 30 May 1991 and Nelson v The Queen, unreported; CCA SCt of WA; Library No 950376; 1 June 1995. In each of those cases there was a conviction after trial of digital penetration of the vagina."

43 It was acknowledged that when in response to a Crown appeal the Court decides to re-sentence an offender it ordinarily gives recognition to the element of double jeopardy involved (and twice standing for sentence) by imposing a sentence that is somewhat less than the sentence it considers should have been imposed at first instance - R v Clarke (supra). It was submitted that if the Court decided to re-sentence the respondent, effect could be given to the principle of double jeopardy by declining to increase the length of the effective sentence of imprisonment which had been imposed by the learned sentencing Judge but declining to suspend that 2 year term.

44 In Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665 at 671 Gleeson CJ and the six other Justices of the High Court said at 671:

"The principles according to which an appellate court may interfere with such a discretionary judgment by a sentencing Judge are well established. In their application to a Crown appeal against sentence they were summarised in R v Allpass (1993) 72 A Crim R 561 and R v Clarke [1996] VICSC 30; [1996] 2 VR 520. Of particular importance in the present case is the principle that a Court of Criminal Appeal may not substitute its own opinion for that of the sentencing Judge merely because the appellate court would have exercised its discretion in a manner different from the manner in which the sentencing Judge exercised his or her discretion. This is basic. The discretion which the law commits to sentencing Judges is of vital importance in the administration of our system of criminal justice."

45 In the present case, it is my view that the learned sentencing Judge made no error of fact. He fully appreciated all the circumstances surrounding the offences and took the view that it was in the community's long term interests that the respondent should not be sentenced to imprisonment.

46 Views as to the correct punishment for this type of offence may vary - see the discussion of previous authorities in Powell v The Queen, unreported; CCA SCt of WA; Library No 8928; 21 June 1991 where the Court of Criminal Appeal said:

"In numerous decisions of this Court, it has been stated that a 'tariff' in relation to sexual offences remains as elusive as ever: see, for example, R v Wozencroft, unreported; CCA SCt of WA; Library No 6606; 25 February 1987 per Burt CJ at 3; R v Podirsky (1989) 43 A Crim R 404 at 411. That remains the case."

47 In James v The Queen (1985) 14 A Crim R 364, a decision which concerned an indecent assault on a 12-year-old boy, Burt CJ at 366 said:

"It was a serious offence. It was, I think, an offence calling for a deterrent punishment. But on the other hand, it was a first offence committed by a man aged 41. There is no reason to suppose that it will be repeated by him and in argument this was accepted by counsel for the Crown whose end and central submission was that imprisonment was the only appropriate sentence because the offence called 'for the use of the most highly deterrent form of disposition known to the criminal law'. In that submission counsel was specifically speaking of a general deterrence, that is to say, of the deterrence of persons other than the appellant as the Crown accepted 'the proposition that this person does not need personal deterrence as of today'. As to that, in my opinion, in a case such as this a sentence other than imprisonment cannot be said to be inappropriate upon the single ground as asserted, and it may not be the fact, that it will not sufficiently deter others from committing a like offence. This applicant is in steady employment."

48 I also refer to s 6(4) of the Sentencing Act 1995 (WA).

49 Applying the principles in James (supra) and in s 6 of the Sentencing Act, in my view, it has not been demonstrated that the learned sentencing Judge who in this case was also the trial Judge, erred in fact or law.