Court of Appeal (WA)|2008-03-27|Before: Wheeler JA

RIGGALL -v- THE STATE OF WESTERN AUSTRALIA [2008] WASCA 69 (27 March 2008)

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

CITATION : RIGGALL -v- THE STATE OF WESTERN AUSTRALIA [2008] WASCA 69

Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA

Criminal law - Appeal - Conviction - Criminal Code (WA), s 321 - "Technical" - Spent conviction order

1 This is an appeal against sentence. Unusually, there was a trial of an issue. The learned sentencing judge was positively satisfied of a number of matters, and published reasons for the views which he had reached: The State of Western Australia v Riggall [2007] WADC 87. The following account of the facts comes from his Honour's reasons, from his Honour's sentencing remarks, and from the evidence of certain witnesses whose evidence, having regard to his Honour's findings, he must have generally accepted.

2 At the time of the events in question, Mr Riggall was 22 years of age, and an employee of a coffee shop in Perth. Mr Riggall is homosexual. He had apparently had difficulty when he was younger, in coming to terms with his sexuality, but it seems that he had done so. He had had some relationships with other men, which included one serious relationship that lasted for approximately two years, when he was 20, with a young man who was in his twenties. He was regarded as an honest, hardworking, and caring young man.

3 When he was working in the coffee shop, a young man called Adam came to the cafe from time to time. Adam was attracted to Mr Riggall and requested his telephone number in order to pursue that attraction. They would, after that, "hang out" together in the city. They had, of course, a number of conversations. Adam was described by a witness as "tall, well built, blond-brown hair", and bigger than Mr Riggall. During the course of their conversations, Adam told Mr Riggall that he was a model. He said either that he was going to the Western Australian Academy of Performing Arts (WAAPA), or was intending to commence going there after the summer holidays, and he said that he was 19 years of age. Adam told another of Mr Riggall's friends, whom he met at one stage, that he was 19 and planning to attend WAAPA. That was of particular interest to her, since she attended the university of which WAAPA is part. It was her understanding that you had to be at least 18 in order to apply for WAAPA.

4 Mr Riggall and Adam were open about their relationship. Adam visited Mr Riggall at the house where Mr Riggall lived with his mother, and met Mr Riggall's mother. However, Adam had told Mr Riggall that his own mother was not very accepting of Adam's homosexuality, and Mr Riggall did not speak to Adam's mother until a telephone conversation which I shortly describe.

5 On an occasion when Adam began kissing Mr Riggall, the relationship turned from one of friendship and mutual attraction, to a sexual relationship. The sexual encounters involved two occasions of mutual masturbation. On the second occasion, there was also an incident of fellatio, when Mr Riggall performed fellatio on Adam. There was then, a few days later, an act of anal sex. There was evidence that these were not Adam's first sexual encounters.

6 Following the last of the sexual acts, Adam was at Mr Riggall's house when Adam's mother telephoned. Mr Riggall's mother was also on the premises, and witnessed the aftermath of the telephone conversation. Adam's mother asked whether Mr Riggall knew Adam's age, and he responded that he did, and that he was 22 to Adam's 19. She informed him that Adam was, in fact, 14. Mr Riggall was shocked and upset. Mr Riggall turned to Adam and said, "You lied to me". Adam began to cry. Mr Riggall gave Adam's mother the details of his address, so that Adam's mother could pick him up at once. Although he was prepared to remain friends with Adam, Mr Riggall thereafter indicated clearly to Adam that the sexual aspect of their relationship had to cease. There were no further sexual acts.

7 For completeness, it is desirable to note that there is no evidence whatever that suggests that Mr Riggall should have had any reason to believe that Adam was under the age of 19, let alone that he was under the age of 16. Mr Riggall described Adam as somewhat "baby-faced", and said that some of his friends appeared immature; however, it should be noted that Mr Riggall, who was 23 at the time at which he was interviewed by psychologists and Community Corrections Officers, was described by them as being "boyish" in appearance, naive and immature. The learned sentencing judge, who saw Adam, albeit on video from a remote room, noted that Adam did not appear to be a person "with the appearance of very tender years", that the physical description given of him by the witness I first quoted appeared to be correct, and that he did not appear to be naive or incapable of fully appreciating the proceedings.

8 It appears that complaint was then made to police. It is not clear how this came about, although certain comments of Adam's suggest that it may have been at the instigation of Adam's parents who were, not surprisingly, concerned about their son's welfare. Police in due course questioned Mr Riggall and he told them about the sexual encounters which had occurred. He entered a plea of guilty to two counts of indecently dealing with a child over the age of 13 and under the age of 16, and two counts of sexual penetration of a child over the age of 13 and under the age of 16. The plea of guilty was, of course, entered on the basis that Mr Riggall's honest and reasonable mistake about Adam's age was no defence, since the actual, rather than the apparent, age difference between Mr Riggall and Adam was more than three years: s 321(9) Criminal Code (WA).

9 Of course, as the circumstances of the offences would suggest, the various reports obtained by the learned sentencing judge made it clear that Mr Riggall was not a person who was attracted to younger people, was unlikely to reoffend, and was no risk to others. His Honour noted those facts. His Honour noted, in addition to the facts set out above, that Adam had been the "pursuer" in the relationship and that there was no evidence that Adam had been harmed by it. His Honour noted that it was his view that Mr Riggall had shown remorse. His Honour noted a number of positive character references.

10 His Honour referred to the statutory maximum penalties of 7 years in respect of the indecent dealing, and 14 years in respect of the sexual penetration, in characterising these offences as a "very serious matter". He referred to a recent decision of this court, The State of Western Australia v Rock [2007] WASCA 121, in which Steytler P said, at [11]:

Sexual offences against children are self-evidently very serious. The consequences for the victims of such crimes are ordinarily devastating and enduring, as is revealed by the victim impact statements lodged by the first two complainants in this case. The dominant sentencing considerations are punishment, general and personal deterrence and the protection of children who, because of their lack of experience and, often, judgment, are vulnerable.

11 The learned sentencing judge therefore considered that the offending was so serious that it required an element of punishment. Having regard to the relevant mitigating factors, he did not impose a term of imprisonment, either immediate or suspended, but imposed a community based order with a programme requirement and a community service requirement of 100 hours of unpaid community work. That community based order was for a period of 12 months. His Honour noted that Mr Riggall became a reportable offender within the meaning of the Community Protection (Offender Reporting) Act 2004 (WA), with which I deal later.

12 In assessing Mr Riggall's culpability, his Honour said it came:

[F]irstly, from being attracted to what appeared to be a young man; secondly, by being deceived as to his age and, thirdly, probably as a result of the first two matters, failing to make proper inquiry to ascertain the truth so as to avoid your criminal behaviour. (ts 117)

I will return to this observation. His Honour considered that the "seriousness of the offence" was such that he should not make a spent conviction order.

13 There are two grounds of appeal. The first attacks his Honour's decision to impose what was described as a "punitive sentence"; instead, it is submitted, his Honour should have released the appellant without penalty. The second relates to his Honour's decision not to make a spent conviction order.

14 In my respectful view, his Honour was in error in the way in which he assessed the appellant's culpability. I have quoted at [12] the matters to which his Honour referred. As to the first, there is no offence committed by a person who is sexually attracted to another person, no matter what the age of that other person, unless (where the other person is under 16) the attraction is acted upon. Even if the attraction is acted upon, so as to result in some sexual relationship, there is no culpability involved in being attracted to a "young man", unless the young man is under 16. The appellant did not know Adam was a "young man" in that sense. As to the second, there is no culpability in being deceived.

15 As to the third, it is unclear what "proper inquiry" his Honour had in mind. As I have noted, there was no circumstance which might have alerted the appellant to the need to make any inquiry at all about Adam's age. In attempting to contend that this last observation was correct, the State was driven to agree with the proposition that there was no apparent age at which "inquiry" would not be necessary, so that any person proposing to have sexual relations with another, whether that other appeared to be 19 or 29 (or even older) must first seek incontrovertible proof of age, such as a birth certificate. This ignores the reality of the way in which sexual relations take place, which usually involves an atmosphere of mutual liking and trust.

16 Further, although his Honour considered and, in my respectful view correctly, specifically excluded the alternatives of either immediate or suspended imprisonment, it does not appear that he expressly turned his mind to the question of whether any sentence less than that imposed (a community based order) would be inadequate. His reason for imposing the sentence which he did was simply that the offence was "so serious that it does require an element of punishment" (ts 121). However, because, in my view, his Honour's assessment of the matters which went to make up the appellant's culpability was in error, it follows that his assessment of the seriousness of the offence was flawed. In my view, he should have turned his mind to all of the relevant sentencing options. It therefore falls to this court to assess for itself the appellant's criminality, in the light of his Honour's findings of fact.

17 In order to determine where on the scale of criminality the appellant's offending lies, it is, in my view, necessary to consider the "mischief" at which s 321 is directed and, in particular, to consider, to the extent that it can be discerned, the reason for the imposition of strict liability in relation to offenders who are more than three years older than those with whom they have sexual relations.

18 An observation often cited by the State in relation to offences of this kind is the observation made by McKechnie J in Germain v The State of Western Australia [2004] WASCA 293 [31]. That was that " ... it must be remembered that the purpose of making this conduct an offence is the protection of children, sometimes against their own burgeoning sexual feelings". That passage is sometimes referred to as if it established that the purpose of this legislation is to protect children from their own sexual feelings; that is, it is cited as if any sexual feeling whatever is, rather like tobacco smoking, something inherently harmful, against which young people must be protected, no matter what their level of understanding and maturity might be. No doubt, there are some in the community who take that view. However, it is, in my view, apparent from the legislative history, and the Parliamentary Debates, that the focus of the legislation is, principally, elsewhere, and that the legislature anticipated a more nuanced approach to offending where both participants were relatively young.

19 For reasons which I propose to develop in some detail, the purpose of the legislation should be understood in the way in which this court described it in Marris v The Queen [2003] WASCA 171 and again in Deering v The State of Western Australia [2007] WASCA 212. At [17] - [18] of that latter decision, I said (Owen & Miller JJA agreeing):

These observations invite attention to the legislative purpose of the prohibition of sexual penetration of a child between the ages of 13 and 16. 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.

20 This court has often encountered cases of sexual abuse of children, in which children have acquiesced, or children have been confused as to how they should respond, or in which, particularly if the abuse is introduced gradually and by a liked or trusted adult (in a way often described as "grooming"), a child may come to enjoy in whole or in part the sexual attention to which they are subject. Such reactions are far from a free and voluntary consent. Indeed, reactions of that kind often contribute to the harmful effects of sexual abuse upon a child, by making the child feel guilt or shame for what he or she may perceive to be some complicity in the abuse.

21 Further, as I noted in Deering, it is, in any event, undesirable that young people should embark upon sexual activity at an age at which they may not be able to fully comprehend or cope with the social and emotional consequences of it. While some may have that comprehension and capacity, particularly as they approach closer to 16, it is necessary for legislation to draw an arbitrary line, which must be respected. It follows that, even where a young person between 13 and 16 does appear to wish to engage in sexual activity, there is a duty cast upon others to refrain from encouraging or acting upon those wishes. The more mature the other person, the greater the degree of self-control which should be demanded of them.

22 In both of these respects, it is correct to say that the legislation is directed at the protection of children "against" their own burgeoning sexual feeling, if by "against" is meant "despite" or "regardless of". That is the way in which I would understand the passage referred to above, from Germain. It does not mean that a free and voluntary consent is irrelevant to sentence, although its relevance will vary considerably with the circumstances.

23 In summary, the position of what is effectively strict liability, with a very limited exception, in relation to sexual behaviour involving children between the ages of 13 and 16, is the result of a series of reforms, which began in 1985. The position prior to the completion of those reforms was that it was extremely difficult successfully to prosecute an offender for sexual offences against a child, most particularly in relation to the more serious sexual offences which took place against very young children and within a family. Where offenders were successfully prosecuted, penalties imposed were often negligible. I outline below the major reasons for that position.

24 So far as the offence of rape was concerned, s 325 of the Criminal Code prior to the 1985 reforms relevantly provided:

Any person who has carnal knowledge of a woman or girl, not his wife, or of his wife whilst he is separated from her and they are not residing in the same residence, without her consent, or with her consent if the consent is obtained by force, or by means of threats or intimidation of any kind, or by fear of bodily harm, or by means of false or fraudulent representations as to the nature of the act, or, in the case of a married woman, by personating her husband, is guilty of a crime which is called rape

25 There were a number of reasons why prosecution for the rape of a child, particularly where committed by a person in the child's family, or by a trusted adult, would be difficult to achieve. Offences of that kind were frequently not disclosed promptly, for the reasons discussed in Collard v The State of Western Australia [2008] WASCA 47 [77] - [78]. However, it was a legal assumption that delay in complaining would reflect adversely on the credit of a witness, and juries were generally directed in that way: Kilby v The Queen [1973] HCA 30; (1973) 129 CLR 46.

26 There was a rule that, in sexual cases generally, a jury should be directed that it was dangerous to convict on the evidence of the complainant alone because human experience had shown that complainants in sexual cases "do sometimes tell an entirely false story which is very easy to fabricate, but extremely difficult to refute". A direction would often indicate to a jury that such stories could be fabricated "for all sorts of reasons ... and sometimes for no reason at all": R v Henry; R v Manning (1968) 53 Cr App R 150, 153; Kelleher v The Queen [1974] HCA 48; (1974) 131 CLR 534, 542 (Barwick CJ), 553 (Gibbs J), 559 (Mason J). Since the evidence of a child witness was generally regarded as inherently suspect (see B v The Queen [1992] HCA 68; (1992) 197 CLR 599, 616) the various warnings, taken together, had the effect that a jury would often be directed, in a case involving the sexual assault of a child, in terms which went close to positively inviting the jury to acquit.

27 Finally, in relation to the offence of rape, a formidable obstacle to conviction in a case involving a child was the somewhat eccentric legal view of "consent" which was to the effect that consent to intercourse may be "hesitant, reluctant, grudging or tearful" and still be consent within the meaning of the section: Holman v The Queen [1970] WAR 2, 6. Particularly in the case of younger children, who would rarely be in the position of being able to oppose the wishes of an adult, and who would find difficulty in articulating how they might have felt or what they might have done to indicate a lack of consent, proving an absence of consent presented considerable difficulty.

28 There were offences of "carnal knowledge" of a girl under the age of 16, which carried a penalty of 5 years' imprisonment (or 2 years if the offender was 21 or under). However, a prosecution under that section had to be begun within six months of the commission of the offence, meaning that no indictment could be brought if the disclosure was significantly delayed. Further, in relation to both that offence and the offence of having unlawful carnal knowledge of a girl under 13, it was provided that a person could not be convicted of either the completed offence, or the attempt to commit it, upon the uncorroborated testimony of one witness (s 185, s 187 Criminal Code). In the absence of admissions, it was therefore very frequently the case that no conviction could be obtained.

29 That left the offences of indecent dealing with a child or with a girl under the age of 16. In those cases, a person could be convicted despite the absence of corroboration as a matter of law. Further, consent was not a defence (s 202). Against the background of the common law suspicion of sexual assault victims and of children, as a practical matter, in order to have a reasonable prospect of securing a conviction, even very serious offences against young girls would very often be charged as no more than indecent dealing. At the election of the alleged offender, however, a complaint of indecent dealing was to be dealt with pursuant to s 20B of the Child Welfare Act 1947 (WA), with the result that the maximum penalty available was 18 months' imprisonment.

30 So far as male children were concerned, sexual behaviour between males was criminal in itself: s 181, s 184. However, many of the difficulties in prosecuting offences, and the inadequacy of penalty, were essentially the same as for female children.

31 In short, prior to the package of reforms which began in 1985, it was extremely difficult to prosecute to conviction serious sexual offences against children, with the result that those offenders who were convicted often received punishments which were hopelessly inadequate.

32 Not surprisingly, the position I have outlined above came to be widely regarded as unacceptable. There were a number of formal law reform proposals and less formal committees, petitions, and reviews. The formal proposals consisted principally, of the Murray Report, a general review of the Criminal Code presented in 1983 by the then Crown counsel, Mr M J Murray QC, the Child Sexual Abuse Taskforce Report of December 1987 and the Western Australian Law Reform Commission Project 87, Evidence of Children and Other Vulnerable Witnesses (Report 1991).

33 When the various reforms, and particularly those of 1985, 1989, 1992, and 2002, are considered against the background I have described, it is clear that the mischief at which those reforms were aimed was not that children were sexually active; rather, it was that sexual abuse of children was inadequately punished, or unpunished. So far as male children were concerned, the reforms moved the law from a position where any sexual activity between males, whether consensual or not, of any age, was regarded as a "mischief" to be legislatively controlled, to a position where such activity, if consensual, attracted criminal responsibility only where at least one of the males was under a designated age.

34 The reforms of 1985 dealt largely with the offence formerly known as rape, and introduced significant differences in relation to the definition of sexual assault, consent, and in relation to evidentiary provisions. Although those reforms would have made prosecution of those who offended against children somewhat easier in some circumstances, provisions dealing with children specifically were largely unaffected.

35 In 1989, there were some reforms to those sections of the Criminal Code dealing specifically with offending against children. The expression "carnal knowledge" continued to be used, and there continued to be a distinction between offending against male and female children. The time limit on the commencement of prosecutions in respect of carnal knowledge remained: s187(4).

36 The first very significant alterations to the law relating to sexual offences specifically against children, were, it seems, those of 1992. Those were the amendments discussed in Marris. So far as one can tell from the debates, although there was some controversy about some aspects of the legislation in the community, it by and large had bipartisan support. Relevantly for present purposes, there was some discussion of the role of consent in relation to sexual acts between "young people".

37 In relation to the 13 to 16 year age group, the then Hon Attorney-General in his Second Reading Speech introducing the Acts Amendment (Sexual Offences) Bill 1991 (WA) said:

There have been many complaints about the pressure put on young girls in sexual abuse cases to make them say that they have consented to the offence. The new section 321 is designed so that an adequate penalty can be imposed in a serious case without the need to prove that the child did not consent ... Where a charge is laid under the new section 321, the offence would cover both consensual and non-consensual acts, but the question of consent would only be relevant to the issue of penalty. These provisions will considerably reduce the trauma for child witnesses, and remove any need for questioning them about intimate details of what actually occurred.

...

[T]he new approach means that the offence of sexual penetration covers a wide range of conduct, all of which is viewed very seriously by the community, but some of which is considered to be of less gravity. To give some examples: For a 40-year-old man to have sexual intercourse with a 14-year-old girl who is not consenting, a severe penalty would be expected. However, where two young people, say a boy of 17 and a girl of 15, who had been going out for some time had sexual intercourse, many people would accept that a penalty at the lower end of the range would be appropriate.

(Parliamentary Debates (Legislative Council), 6 May 1992, page 1803.)

38 In relation to that observation, the Hon Derrick Tomlinson, who provided a very detailed commentary on many of the provisions of the Bill, apparently on behalf of his party as a whole, noted that some would consider it inappropriate that there be any penalty in relation to a boy of 17 and a girl of 15. He asked, rhetorically, "Why should a young couple who simply make love be penalised by a sentence of 7 years' imprisonment? Since when have we been penalising love? However, under some circumstances quite clearly that would be an actionable offence" (Parliamentary Debates (Legislative Council) 6 May 1992, page 2188). At pages 2189 - 2190, the Hon Derrick Tomlinson explained his view as being founded in part on a pragmatic approach to material which indicated that a significant number of young people between 14 and 16 years of age were sexually active.

39 The equally pragmatic response of the Hon Attorney-General was one which included the summary which I quoted in Marris:

Hon Derrick Tomlinson's concerns, and those on which he elaborated, seem to primarily involve the question of potential liability to prosecution of what might be referred to as consenting juveniles in private. His reference to the medical journal article, which indicated sexual activity by high school Year 9 students, might suggest that schools would be unable to operate Year 10 classes because of the absence of students who were appearing in court, or worse. Of course, Hon Derrick Tomlinson was not suggesting that, and no-one would. Even under the present law many sex acts by juveniles could theoretically be prosecuted, but they are not. The present offence of unlawful carnal knowledge covers many of the situations to which Hon Derrick Tomlinson referred. The reason for this absence of prosecution is that, in both the existing law and the present Bill, the clear intention and target is not sexual activity as such, but sexual activity involving some element of abuse. The whole point of this legislation is to protect children and not to prosecute them. In this context, there is no reason to doubt that the prosecuting authorities and the courts will continue to act on that basis. [13]

(Parliamentary Debates (Legislative Council) 14 May 1992, page 2361.)

40 Thanking the Hon Attorney-General for that response, Hon Derrick Tomlinson in committee observed:

At the outset, I thank the Attorney General for reaffirming the position which I think has always been understood with this legislation; that is, that the intention of the Government and the prevailing values of our society are that the law is intended to prosecute and not to persecute. That summarises the position the Attorney General gave to this Committee. Of course, the focus of prosecution is not young people caught up in these sorts of offences which I alluded to in arguing an attenuation of some aspects of the Bill. The focus is really the prosecution of older people who abuse children.

(Parliamentary Debates (Legislative Council) 14 May 1992, page 2364.)

41 The passages quoted above demonstrate, in my view, that Parliament plainly recognised that, in attempting to ensure that sexual abuse of children was appropriately prosecuted and punished, the law technically brought within its scope consensual activity which was engaged in by a significant number of young people. Parliament was, however, confident that prosecuting authorities and, where relevant, the courts, would deal appropriately with behaviour which did not fall within the mischief at which the legislation was aimed.

42 The Bill which introduced s 321(9) of the Criminal Code in its present form was the Acts Amendment (Lesbian and Gay Law Reform) Bill 2001 (WA). The debate in relation to these amendments is illustrative of the difficulty in ascertaining actual subjective legislative intention, so colourfully discussed by Scalia J in Edwards v Aguillard [1987] USSC 120; 482 US 578 (1987), 636 - 638. However, I think it is fair to summarise the issues thrown up in debate broadly in the following way.

43 It was recognised that the age at which individual children are sufficiently mature to be able to be considered capable of giving an informed consent to sexual activity may vary considerably from child to child. It was recognised that the exercise of determining the age at which it was appropriate to regard a young person as, in general, sufficiently mature so as to not to require the protection of the criminal law, was an arbitrary one. So far as the most desirable age was concerned, views varied significantly, ranging from a suggested 15 through to 21. The purpose of the legislation was to ensure that the same age applied to males and females, but some members considered that, arguably, different ages could be justified on the basis that young women were, in general, mature at an earlier age than young men.

44 In the debate in relation to the availability of a defence of honest and reasonable mistake, however, the focus was very much upon the protection of young people from older "predators": eg, Hon R Johnson, Parliamentary Debates (Legislative Assembly) 5 December 2001, page 6476; Hon K Hodson-Thomas, page 6522; Hon R Sweetman 6 December 2001, page 6633. The explanation given by the Hon Attorney-General, in his Second Reading Speech, in relation to what became s 321(9) was as follows:

The Criminal Code also provides that it is a defence to this offence if the offender had a mistaken but reasonable belief that the young person was 16 years of age. However, the question of whether such a belief is reasonable is a matter for a jury to decide. In my view, it is appropriate that the defence of mistaken but reasonable belief that a young person was 16 years of age should be limited. Since the Government is concerned about the young and those who are vulnerable, this provision will be strengthened by the proposed amendments to the Criminal Code whereby a person will only be able to claim that they were mistaken about the victim's age if the accused was of the same age group as the victim.

(Parliamentary Debates (Legislative Assembly) 14 November 2001, page 5521.)

45 If the belief held by the accused was, in truth, both honest and reasonable, it is difficult to see, with respect, how making it available only to those within three years of the age of the complainant would provide additional protection for the young. A person who was genuinely mistaken about his or her sexual partner's age, believing them to be over 16, would, by definition, believe that they were engaging in conduct which was not proscribed by the criminal law and would, therefore, be unlikely to be deterred by s 321(9). The answer to that apparent difficulty may lie in the observation that the question of whether a belief was reasonable was a matter for a jury to decide. It may be that, in relation to this particular offence, Parliament considered that juries might be unduly gullible and sought, therefore, to limit their role.

46 Two members specifically addressed the question of the likelihood of younger people being prosecuted under these amendments, Ms Edwardes saying that it was a "furphy" that there was a potential for young people to be prosecuted (Parliamentary Debates (Legislative Assembly) 5 December 2001, page 6465), and the Hon N Griffiths, referring to material which demonstrated that the average age difference between the parties where one was charged with an offence against a child was 25 years and in only one case was the age difference less than 14 years (Parliamentary Debates (Legislative Council) 21 February 2002, page 7788).

47 In my view, the "mischief" at which the 2002 amendments to s 321 were aimed can be seen from the debates to be essentially the same as the mischief at which the 1992 legislation was aimed. That is, it was intended to protect children from abuse by those who would seek to prey on their vulnerability. It would be wrong for the court to fail to recognise, as Parliament undoubtedly recognised, that not every person under 16 is equally vulnerable in that sense, nor every offender equally predatory. In that context, I draw attention again to what I said, in the context of a different type of sexual offending, in R v Smith [2004] WASCA 44:

[I]t 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. [6]

48 The matters referred to above, reinforce the view that I expressed in Marris that the presence, or otherwise, of an element of "abuse" is a concept of considerable importance in relation to sentencing for offences of this type. The greater the element of abuse, generally evidenced by matters such as significant disparity in age, or use of force, or other types of pressure, or grooming behaviour, the greater the criminality. Generally, a sensible exercise of the prosecutorial discretion will have the result that, where there is not even arguably an element of abuse, a matter will not come before the court for sentence.

49 For completeness, however, it is important to stress, and stress strongly, that the views which I have expressed above are not to be taken as an invitation to offenders, in the general run of cases, to attempt to find, somewhere in the response to a sexual advance made by an immature person, some element of "consent" which may be regarded as mitigating. Parliament has clearly recognised the vulnerability of children to attempts to procure consent, and it is unlikely that consent will exist in any relevant sense where for example the child is very young, or plainly very immature, or where the offender is in a family relationship with the child, or occupies some other position of authority in relation to him or her.

50 That discussion brings me, finally, to an assessment of the criminality of this particular appellant. His subjective view was that he was engaged in an activity which Adam had not only consented to, but which Adam had sought. Adam had, in fact, sought to have a sexual relationship with him. He understood Adam to be a person whose maturity was roughly equivalent to his own. He had no reason to know, or to believe, that Adam was a child, or that the appellant's conduct would be in breach of the law. When he did realise that he had, mistakenly, behaved in a way which the law forbids, he was remorseful and refrained from any such further conduct. It is difficult to imagine these offences being committed in circumstances less worthy of blame and, therefore, less deserving of a sentence which has an element of retribution.

51 So far as deterrence is concerned, the appellant does not require personal deterrence; his respect for the law is demonstrated in his reaction to the revelation of Adam's age. So far as general deterrence is concerned, the cases of child sexual abuse which come before the courts are, as a general rule, so very different from the circumstances of this case that it is unlikely that any sentence imposed upon the appellant would be considered by most other offenders to be relevant to their circumstances. It is, therefore, my view that, in the very exceptional circumstances of this case, the appellant's offences should be punished to the least possible extent permitted by law.

Section 46 of the Sentencing Act 1995 (WA)

52 By reason of s 41 of the Sentencing Act 1995 (WA), the penalties open in respect of the appellant are those provided by s 39(2). Section 39(2)(a) provides that a court may "with or without making a spent conviction order, under pt 6 impose no sentence and order the release of the offender". The offender would remain a convicted person, but there would be no penalty other than the conviction. The power to make an order of that kind is qualified by s 46. Section 46 relevantly provides:

Release without sentence

A court sentencing an offender may impose no sentence if it considers that -

(a) the circumstances of the offence are trivial or technical; and

(b) having regard to -

(i) the offender's character, antecedents, age, health and mental condition; and

(ii) any other matter that the court thinks is proper to consider,

that it is not just to impose any other sentencing option.

53 There was no difficulty in the present case with par (b) of that section. The appellant's character was generally good, as indicated by the various references provided to his Honour. He is a young man. There is, as I have noted, no reason to believe that there need be any element of personal deterrence in his sentence, and the circumstances of his offending are truly extraordinary. If it were open, I would be satisfied that it was not just to impose an option other than release without sentence. However, a question arises in relation to par (a).

54 In interpreting par (a) of s 46, the first matter to note is that the legislative focus is not on "the offence", but upon "the circumstances of the offence". The distinction may be important. Had the legislature directed attention to "the offence", it would, in my view, be difficult to suggest that any offence could be regarded as trivial or technical, where the legislature had indicated by the provision of a severe maximum penalty, that the offence was an important one for the protection and welfare of the community.

55 However, a reference to the "circumstances of the offence" suggests that the legislature intended to direct attention not to the offence in that somewhat abstract sense, but to the very particular circumstances of the individual offence under consideration. That would leave it open, at least theoretically, for the court to impose no penalty even where the offence was of a type which, as a class, could generally be regarded as neither trivial nor technical. Of course, the more serious the offence in the abstract sense, the less likely it is that, in any individual case, the circumstances will admit of characterisation as either trivial or technical.

56 For present purposes, it is not necessary to consider when the circumstances of an offence may be regarded as "trivial". That is because there are, I consider, good reasons, in the present case, for reaching a view that the circumstances of the appellant's offending are "technical".

57 Turning first to the ordinary, or dictionary, meaning of the word "technical", some assistance in this case can be gained from one of the common meanings of the word which is defined as "so considered from a strictly legal point of view or a rigid interpretation of the rules" (Macquarie Dictionary). That definition suggests that it may, subject to the statutory context, be appropriate to regard an offence as "technical" where it is accompanied by a state of mind which demonstrates that the breach of the law was inadvertent. The word was used in this sense in Bell v Stewart [1920] HCA 68; (1920) 28 CLR 419 in which Isaacs and Rich JJ distinguished a "technical" contempt of court from one which was "wilful"; that is, from one which was conscious and intentional (426 - 428).

58 As a practical matter, it is not likely that the exercise of the discretion to release without penalty will often arise in relation to an "inadvertent" offence in that sense, for two reasons. In relation to serious offences of the kind generally dealt with in the Criminal Code, the "defences" of accident, mistake and honest claim of right will mean that generally those whose state of mind is relevantly "innocent" will not be convicted. At the other end of the offending spectrum, where the offence is of a regulatory kind, it will often be the case that the statutory scheme demonstrates a legislative intention to impose upon those engaging in particular conduct a duty to take steps to ensure that their conduct positively complies with the regulatory scheme. In those circumstances, the mere absence of an intention to offend will not suffice for an offence to be regarded as "technical", since to understand the word in that way in relation to such legislation would defeat the statutory scheme.

59 Another way of understanding the term "technical" in the dictionary sense I have described, which seems to be of relevance to the present case, would be that, although the elements of the offence have been made out (as they must necessarily be for a conviction to be recorded), the conduct might be seen as "technical" where it was, in the particular circumstances, far removed from the mischief at which the relevant legislation could be seen to be directed.

60 The views expressed above appear to me to be consistent with the actual decisions in three of the other cases from this jurisdiction which I have been able to locate concerning the application of s 46. It is not consistent with the result in Teede v Wright [1999] WASCA 121, in which McKechnie J characterised as technical a deliberate (albeit not premeditated) punch, which resulted in some bruising. In my respectful view, his Honour's reasons do not clearly disclose how that result was reached, so that the decision must be confined to its own facts.

61 In Bembridge v GRK Karate Australia Pty Ltd (1998) 103 A Crim R 362, Miller J did not regard as "technical" a breach of the Door to Door Trading Act 1987 (WA), notwithstanding that the offender had obtained legal advice and had apparently acted in compliance with that advice. The Door to Door Trading Act 1987 is an example of what I have referred to as a legislative scheme for regulating an entire field of behaviour. Where Parliament has, in effect, determined that certain conduct can only be engaged in if it is engaged in in accordance with detailed conditions, it would render the legislative scheme ineffective if all inadvertent non-compliance were to be regarded as "technical". However, even in that case, Miller J considered that some breaches of the legislation might fall within that description. His Honour gave the example of the inadvertent use of a size 16 font in type where size 18 was specified (368). Provided that size 16 font was as legible as size 18, that would appear to be an example of a departure which would have no effect upon the mischief (difficulty of comprehension) at which the legislation was aimed. Similar "regulatory" legislation is the Fish Resources Management Act 1994 (WA), a contravention of which was regarded by McKechnie J as not "technical" in O'Brien v Ostrowski [1999] WASCA 184.

62 In Pillage v Coyne [2000] WASCA 135, Miller J declined to regard a breach of a restraining order as a technical breach. Of course, the whole point of a restraining order is that it restrains conduct which, taken in isolation, may be regarded as trivial or unimportant, but it does so for the purpose of preventing more serious offending. Miller J referred, at [14], to the undermining of the purpose of restraining orders which would flow, if breach were too readily to be considered to be "technical", an approach consistent with the understanding set out above.

63 It is necessary, however, to consider certain observations made by Miller J in Bembridge (369 - 370), in which his Honour applied a dictum of Bray CJ in Liddy v Cobiac [1969] SASR 6. In dealing with s 4 of the Offenders Probation Act 1913 (SA), which has some similarities to s 46, Bray CJ considered that the application of that provision:

... generally speaking, should be less ready when the charge relates to a breach of social legislation, where the preventive and deterrent aspects of punishment assume greater prominence, though I am far from denying that there are cases of this kind to which the section can properly be applied. (10)

Bray CJ therefore considered that it was only in rare and exceptional cases that s 4 could be applied in favour of a defendant found guilty of driving under the influence.

64 It is not entirely clear to me what is meant in that passage by "social legislation". It is not, in my view, generally appropriate for a court to form the view that some legislation serves a more important purpose than other legislation, although clearly some legislation, such as the prohibition of unlawful killing, would plainly be regarded as of particular importance. As Gleeson CJ noted (Luton v Lessels [2002] HCA 13; (2002) 210 CLR 333):

Directly or indirectly, all legislation is aimed at promoting the common welfare. The legislative powers of the Parliament are to be exercised for the peace, order and good government of the Commonwealth [or State]. [12]

65 So far as I can discern, however, the expression "social legislation" has most often been used in respect of legislation of the kind which I have endeavoured to describe as regulating in detail an entire field of activity, so that the activity can only be carried out in accordance with the conditions laid down. Driving a motor vehicle, as in Liddy v Cobiac, is one such field. The observations of Bray CJ have been applied in South Australia in relation also to breaches of the Native Vegetation Management Act 1985 (SA), concerned with clearing vegetation (Piva v Brinkworth (1992) 59 SASR 92). That would appear to me to be an analogous case. If "social legislation" is understood in that sense, then I would respectfully agree that it will rarely be appropriate to regard a breach as "technical".

66 If, on the other hand, by "social legislation" is meant legislation which would be widely regarded as very important in the protection of the community, as I have already observed, in cases where conduct is of the serious kind which is generally dealt with in the Criminal Code, the circumstances in which a person who could be regarded as having a truly "innocent" state of mind, but is unable to avail himself or herself of the defence of accident, mistake, or honest claim of right will necessarily be rare. While, as is clear from the earlier discussion, the view I have reached concerning the meaning of "technical" would, in practical terms, result in a disposition identical to that arrived at by Miller J in both Bembridge and Pillage, I am inclined to the view that the borrowing of the term "social legislation" may on occasion tend to obscure the principle which it appears his Honour applied.

67 In the present case, it is my view that the appellant's offences may be regarded as committed in circumstances which are "technical", both because his conduct was very different from the type of predatory exploitation of the young at which s 321 is directed, and because he had no reason whatever to consider that his behaviour would be a breach of that section. I would therefore order his release without penalty.

68 Section 45 of the Sentencing Act 1995 sets out two preconditions which must be met before a spent conviction order may be made. A court sentencing an offender is not to make a spent conviction order unless it both considers that the offender is unlikely to commit such an offence again, and, having regard to either the fact that the offence is trivial, or the previous good character of the offender, it considers that the offender should be relieved immediately of the adverse effect that the conviction might have on the offender.

69 There is no issue in the present case with the first of those conditions. It seems to be accepted that the appellant is unlikely to commit such an offence again. However, before a spent conviction order may be made, the court must be satisfied either that the offence is trivial, or of the previous good character of the appellant.

70 It is to be noted that, unlike s 46, s 45(b)(i) directs attention not to the circumstances of the offence, but to the offence, and does not contain the word "technical". In those circumstances, I am presently unable to see how a sexual offence which carries a maximum penalty of 14 years' imprisonment could be considered to be "trivial", no matter what the circumstances of its commission.

71 I am, however, having regard to the various references, satisfied that the appellant is of previous good character. The question then arises as to whether, by reason of those circumstances, he should be relieved immediately of the adverse effect that the conviction might have on him.

72 In R v Tognini [2000] WASCA 31; (2000) 22 WAR 291, Murray J said:

In my opinion it is appropriate to conclude that having regard to its effect on the ordinary operations of the Spent Convictions Act, the discretionary power to make a spent conviction order conferred by s 45 of the Sentencing Act should be regarded as being of an exceptional character. If the necessary pre-conditions are established, the court should go on to have regard to the seriousness of the offence before it in the circumstances of its commission and in the circumstances personal to the offender. It should take as the ordinary rule the fact that a conviction will be a matter of record with all the consequences that may entail into the future. It should therefore look to see whether there is some particular circumstance to show that it would be desirable, not only from the point of view of the offender but also, having regard to his or her rehabilitation, from the point of view of the community, why the adverse effect of the conviction should be immediately set aside.

That may often be found in the fact that the conviction, if not declared to be spent, might be a particular impediment to the offender following a particular career, practising a particular profession or undertaking particular employment. It may be that it will be the case that that would be productive of exceptional hardship to the offender and his family, or it may simply be that it can be seen that to relieve the offender of the adverse effects of the conviction will positively aid that person's rehabilitation in a way which may be seen to best accord with the interests of the community. The court may be aided to reach that conclusion if it thinks that there is no pressing public interest in being able to continue to have access to the fact of conviction as part of the process of securing the protection of the community. [27] - [28]

73 Taking the last matter first, it seems to me there is no pressing public interest in persons generally being able to continue to have access to the fact of the appellant's conviction, since there is nothing to indicate that the community requires protection from the appellant. It is also, in my view, relevant in the present case to consider the very serious stigma which attaches, rightly, to a conviction for a sexual offence against a child. The stigma is so great that any person who becomes aware of the mere fact of the appellant's conviction will often be uninterested in staying to learn the detailed circumstances and will be prepared, without more, to regard the appellant as a person of thoroughly reprehensible character.

74 Particularly in relation to a young person who is, in practical terms, at the beginning of his working life and who, although currently working as a barista, may well at some stage seek alternative employment in other fields, the mere fact of conviction of these offences would be likely to have a detrimental and long-lasting impact upon the appellant. In those circumstances, in my view, it is appropriate that he be relieved immediately of the effects of the conviction and I would make a spent conviction order.

75 Notwithstanding his release without penalty, and the making of a spent conviction order, I would note, finally, that the mere fact of conviction will continue, potentially, to have a significant impact upon the appellant.

76 Part 3 div 3 of the Spent Convictions Act 1988 (WA) provides that it is unlawful for employers (s 18), principals (s 19, s 20), organisations of employees and employers (s 21), authorities that confer qualifications (s 22) and employment agencies (s 23) to discriminate against a person on the ground of a spent conviction. Section 26 in div 4 provides that where a written law of this State permits or allows a person to consider, take into account or determine good character, fitness, propriety or other like attributes, the person shall not have regard to spent convictions of the individual the subject of the character assessment.

77 However, sch 3 sets out numerous exceptions to pt 3. For example, s 18, s 19, s 20, s 22 and s 26 do not apply to persons being considered for

employment in the Department of Education and Training or the Department of Education Services and persons carrying out duties that may require them to come into contact with children of a school for certain purposes. Similarly, s 18, s 20 and s 26 do not apply to persons being placed or engaged by the Department of Community Development or the Department of Housing and Works if the person may deal with children and their families in the course of their service. Section 26 does not apply to, inter alia, persons being considered for appointment as a police cadet, persons applying to be licensed as a security officer, and persons being considered for the grant of a licence as a casino employee.

78 In addition, by virtue of the Community Protection (Offender Reporting) Act 2004 (WA), the appellant now stands convicted of a reportable class 1 offence (s 9). That status continues despite the making of the spent conviction order (s 111). By reason of pt 3 of that Act, the appellant is required for the next 15 years to report annually to the Commissioner of Police and provide to the Commissioner the very detailed personal information prescribed by s 26. Section 30 would require the appellant to provide details to the Commissioner of Police every time he intends to leave Western Australia, unless he leaves for less than seven days, for travel within Australia only. Pursuant to s 61, it appears that the commissioner may approve the suspension of the reporting obligations, but it does not appear that there is any power in any person to terminate them.

79 While the adverse effects of child abuse, as revealed so often in this court, make it clear that children require firm protection from those who would abuse them, I would be inclined to doubt that the Parliament, in enacting the provisions discussed above, considered the question of whether it was appropriate that they apply in exceptional cases such as the present. It may be appropriate that there be some consideration of whether some reform would be desirable, in order to deal with rare cases of this kind. However, that is not a matter for this court.

81 MILLER JA: I have had the opportunity of reading in draft the reasons for judgment of Wheeler JA. I agree with the conclusion that the appellant should be relieved of the effects of his conviction and that there should be a spent conviction order. I am generally in agreement with the reasons given by Wheeler JA in reaching this conclusion. I adhere to the views I expressed in Bembridge v GKR Karate Australia Pty Ltd and

Pillage v Coyne, to which reference is made by Wheeler JA at [61], [62]. When I applied the dictum of Bray CJ in Liddy v Cobiac [1969] SASR 6 [10] in Bembridge, I did understand the expression 'social legislation' as his Honour had used it to mean regulating in detail a field of activity in circumstances in which the activity can only be carried out in accordance with the conditions laid down. I refer, in this respect, to the judgment of Wheeler JA at [65]. There is nothing further that I wish to add.

Protection (Offender Reporting) Act 2004

Door Trading Act 1987

Resources Management Act 1994

Vegetation Management Act 1985

Convictions Act 1988

RIGGALL -v- THE STATE OF WESTERN AUSTRALIA [2008] WASCA 69 (27 March 2008)

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RIGGALL -v- THE STATE OF WESTERN AUSTRALIA [2008] WASCA 69 (27 March 2008)

Legislation Cited (7)

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