Criminal law - Sentence - Whether sentence manifestly excessive - Applicant sentenced to aggregate of 10 years' sentence for two counts of sexual penetration without consent, one count of attempted sexual penetration without consent and one count of indecent assault - Whether sentence inconsistent with other sentences for similar offences - Whether offences occurring over a short period of time arose out of one incident or were separate - Whether a second act of sexual penetration following consensual sexual intercourse is regarded as less serious

Britten v R, unreported; CCA SCt of WA; Library No 940079; 21 February 1994

De Jesus v The Queen [1986] HCA 65; (1986) 68 ALR 1

Nelson v R, unreported; CCA SCt of WA; Library No 950376; 1 June 1995

Ogilvie v R, unreported; CCA SCt of WA; Library No 960643; 8 November 1996

R v Clarke [2000] WASCA 229

R v Podirsky (1989) 43 A Crim R 404

Stanton v R, unreported; CCA SCt of WA; Library No 920298; 28 May 1992

Strickland v The Queen [2000] WASCA 68

Symonds v R, unreported; CCA SCt of WA; Library No 980616; 28 October 1998

Vilai v R [1999] WASCA 275

Woods v The Queen (1994) 14 WAR 341

1 PIDGEON J: I will ask Ipp J to give his reasons first.

2 IPP J: This is an application for leave to appeal against sentence. The application was brought some 8-1/2 months out of time. The applicant accordingly also applies for an extension of time in which to apply for leave to appeal against sentence.

3 In a case of lengthy delay of this kind, the court requires exceptional circumstances to be shown before an extension of time will be granted unless it is established that there will be a miscarriage of justice if an extension is not granted, Gavin v The Queen (1992) 6 WAR 195 at 198 - 199.

4 The facts giving rise to the delay are as follows. The sentences the subject of this application were imposed in consequence of verdicts brought down by a jury on 13 August 1999. The aggregate sentence was 10 years' imprisonment with eligibility for parole.

5 On 20 August 1999, after a different trial, the applicant was convicted of sexual penetration without consent in respect of a different complainant. He was sentenced to 6 years' imprisonment for this offence, of which 3 years was ordered to be cumulative upon the sentence of 10 years' imprisonment imposed in consequence of the first verdict. An overall aggregate sentence of 13 years' imprisonment was therefore imposed upon the applicant for the two sets of offences.

6 The applicant was advised by his solicitor that the aggregate sentence of 13 years for two separate offences of sexual penetration was unlikely to be considered manifestly excessive. For that reason, the applicant did not appeal against the sentences.

7 On 3 April 2000, however, this Court allowed the applicant's appeal against his conviction for the offences of which he was convicted on 20 August 2000. A retrial was ordered. The effect of the appeal, however, was to leave the applicant with a sentence of 10 years' imprisonment for the sentences imposed in consequence of a verdict delivered on 13 August 1999.

8 The applicant thereupon decided that it was now open to him to appeal against that aggregate sentence and applied for legal aid so as to be able to proceed further. On 29 May 2000 he was advised that legal aid had been granted. The application for extension of time within which to appeal was filed on 30 May 2000. Whether or not these particular circumstances reveal a satisfactory explanation for delay is in my view very much a borderline decision. I accept, however, that, until the appeal in respect of the second conviction succeeded, the effect of the totality principle is that the applicant's prospects of succeeding on appeal in respect of the first set of convictions were remote. On that basis, I accept that there were rational grounds for not appealing until the first conviction was set aside. For that reason, I would uphold the application to extend time.

9 The applicant was charged with two counts of sexual penetration without consent, one count of attempted sexual penetration without consent and one count of indecent assault. He was found not guilty of the first count of sexual penetration without consent, which was the first count, and convicted of the others.

10 The maximum penalties for these counts were as follows: 7 years' imprisonment for the second count (the attempt), 14 years' imprisonment for the third count (being the second penetration count), and 5 years' imprisonment for the fourth count (being the indecent assault). The applicant was sentenced to 4 years' imprisonment on the second count, 10 years' imprisonment on the third count and 3 years' imprisonment on the fourth count. All sentences were ordered to run concurrently and the applicant was made eligible for parole.

11 The applicant seeks leave to appeal on the ground that the sentences were manifestly excessive. In support of these grounds the application for leave to appeal asserts that the sentences are inconsistent with sentences for similar offences imposed in other cases; that the offences arose out of one incident which took place over a short period of time and that the applicant had no prior convictions of a sexual nature.

12 At the time of the offences, the applicant was 41 years of age and the complainant was 16. The applicant had a boyfriend, one Hall, who was 17 years old at the time. Hall lived in the applicant's house. On the evening that the offences occurred the complainant went to the applicant's house to see Hall.

13 The complainant consumed some alcohol and became affected thereby. She said she was tired and went to her bedroom to rest. The applicant entered the bedroom and had sexual intercourse with the complainant. This act was the subject of the first count in respect of which the applicant was found not guilty.

14 The second count involved an allegation that the applicant procured Hall to sexually penetrate the complainant. The applicant told Hall that it was his turn to have sex with the complainant and suggested to him that he proceed. Hall attempted to have sexual intercourse with the complainant but was unable to complete the act.

15 The applicant told Hall to leave and in his words he would "finish it off". The applicant then had sexual intercourse from the rear with the complainant without her consent. The applicant exclaimed that the condom he was using had broken and then sat upon the complainant, masturbated and ejaculated upon her stomach. The sexual intercourse from behind and the masturbation resulting in the ejaculation constituted the offences the subject of the third and fourth counts.

"The crimes of which you stand convicted are most serious. There was a large difference between the ages of the [complainant] and you. You sought to involve a 16-year-old in this sordid behaviour and serious criminal activity and you treated the [complainant] in a brutal and most degrading and humiliating manner. The crimes call for a sentence which will serve as a deterrence to you and as a general deterrence to other persons in the community who feel inclined to behave in such a manner. The community would rightly feel outraged by your conduct."

17 It was not suggested that in making these remarks, his Honour erred in any respect. It is a truism to observe that no sentencing tariff exists for sexual offences. Each case depends upon its own particular circumstances. Nevertheless the body of authority emanating from this Court in respect of sexual offences does establish a general discretionary range. The question that arises in this appeal is simply whether taking into account all relevant circumstances the sentences imposed are within that range. I shall proceed to deal with the various arguments raised by the applicant.

18 The fact that the applicant had no prior convictions of a sexual nature is not of any particular significance and there was no need for the learned Judge to mention this in his sentencing remarks.

19 It is correct that the offences took place over a short period of time. However, I do not accept that they arose out of one incident. The first act of penetration was followed by the applicant procuring the complainant's boyfriend to have sexual intercourse with her (the second count). The latter conduct was plainly separate and independent from the earlier sexual intercourse that occurred between the applicant and the complainant. The only connection that it possibly had with the first act of penetration was that it succeeded it in time.

20 The applicant's conduct in exhorting and persuading Hall, the complainant's boyfriend (who was only 17 years old at the time), to attempt to sexually penetrate the complainant caused extreme humiliation and distress to her. This was plainly a factor to which the learned Judge had particular regard.

21 The submission that the sentences were inconsistent with sentences for similar offences imposed in other cases fails by reason of the second count. In my view, the applicant's conduct that gave rise to that offence was so serious that it warranted a cumulative sentence being imposed in respect thereof. In other words, the degree of criminality involved in the applicant's offending has to be assessed, not only by reference to the third count of sexual penetration without consent, but, also, and cumulatively, the second count involving the attempted sexual penetration by Hall. Additionally, regard has to be had to the applicant's conduct in masturbating and ejaculating on the complainant's body. Once these matters are taken into account, the decisions in the cases to which counsel for the applicant referred are not comparable.

22 Perhaps the most compelling point made by counsel for the applicant concerns the inference to be drawn from the first act of sexual penetration in respect of which the applicant was found not guilty. The learned sentencing Judge found that the jury could not be satisfied beyond reasonable doubt that the complainant did not consent to that penetration. It follows that the applicant was required to be sentenced on the basis that the first act of sexual penetration did not occur without the consent of the complainant.

23 In consequence, in my view, the second act of sexual penetration (the third count) has to be regarded as less serious than it otherwise would have been; compare Ibbs v The Queen [1987] HCA 46; (1987) 163 CLR 447 (at 452). In other words, this cannot be said to be a case where the prosecution has established that sexual intercourse was non-consensual from the outset.

24 Were the third count to be regarded in isolation, I would have regarded the applicant's prospects of succeeding on appeal as very strong. But when regard is had to all the relevant circumstances, one is compelled to a different conclusion.

25 Those relevant circumstances include not only the second count (which, as I have noted, would have warranted a cumulative sentence - had the sentencing Judge been so disposed) but other aggravating features. There is the threat, which the applicant uttered to the complainant after the sexual conduct, to the effect that if she disclosed what had happened he would kill her sister. Then there is the wide disparity in age between the applicant and the complainant, as well as her youth. Not only was she only 16 years of age but also she was affected by alcohol. Plainly, the applicant was in very powerful position vis-a-vis the complainant. He took advantage of that.

26 Taking into account all those factors, in my view, it cannot be said that the overall term of imprisonment of 10 years is beyond a proper sentencing discretion.

27 For those reasons while I would grant the application to extend time and grant the application for leave to appeal I would dismiss the appeal.

28 PIDGEON J: I agree with the reasons of Ipp J. In this case the sentencing Judge did approach the matter on the basis that the first act had not been proved to be without the consent of the complainant. It is very difficult, in my view, to attempt to interpret the jury's verdict, but if one assumed for one minute that the first act in a case, not perhaps this case but in a general case, was a consensual act and if there then followed the acts that followed in this case I would not see it as being the situation discussed in Ibbs v The Queen.

29 What followed was the procuring of someone else to do the act with words to the effect of its "being your turn" and when that person could not complete the act, the applicant himself then committed the further offence.

30 In that situation, even if a person did consent to the first act, it would be obvious to anyone that such a person would not be consenting to the subsequent acts. The very nature of the acts involved the utmost humiliation to the complainant and brought it into an area of extreme seriousness.

31 It would have, in my view, justified an approach of cumulative sentences, each of which would have been less and may well have been in the range argued but ultimately would have led to the sentence imposed.

32 For those reasons and for the reasons mentioned by Ipp J, I am in no way persuaded that the ultimate sentence of 10 years' imprisonment was outside a discretionary range.

33 OWEN J**:** I agree with the reasons delivered by Ipp J.