Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA

Criminal law - Sentence - Criminal Code (WA), s 321 - Whether 'technical' breach - Whether sentence manifestly excessive - Turns on own facts

Sentencing Act 1995 (WA), s 6(4), s 39, s 46, s 76(3)

Original sentence of 16 months' imprisonment for each offence set aside

Sentence of 6 months' imprisonment for each offence, suspended for one month

2 McLURE JA: This is an appeal against sentence. The appellant was convicted on his own plea of guilty of three counts of sexually penetrating a child of or over the age of 13 and under the age of 16 contrary to s 321(2) of the Criminal Code (WA) (Code). The offences were committed some time between March and December 2006 when the complainant was aged 13 and the appellant was aged 22 or 23. The appellant and the complainant became acquainted at the Halls Creek town site. They commenced a short relationship during which the offences occurred. The complainant, who had prior sexual experience, willingly engaged in the conduct. The appellant believed on reasonable grounds that the complainant was aged 16. There was no evidence that the appellant knew it was an offence to have sexual intercourse with a child under 16. The appellant cooperated fully with the police, made full admissions and pleaded guilty at the first available opportunity.

3 The appellant was arrested in Balgo on 6 July 2007. He was released on bail to appear in the Halls Creek Magistrates Court on 10 July 2007 but failed to do so. He was apprehended on 8 November 2007 and remained in custody for those offences until he was sentenced by Wisbey DCJ on 15 July 2008.

4 The State accepted that this was an exceptional case for which a term of immediate imprisonment was not the only appropriate disposition. The State sought suspended imprisonment. The appellant sought a community-based order or an intensive supervision order. However, the learned sentencing judge imposed a term of immediate imprisonment of 16 months on each count, to be served concurrently, back-dated to 8 November 2007. The appellant was released on parole on 22 July 2008 and his sentence expires on 7 March 2009.

5 As appears from the exchange between bench and bar during the course of sentencing submissions, it appears the sentencing judge did not suspend the term of imprisonment because that would be in addition to what he considered an appropriate penalty. I infer the sentencing judge had in mind that it was not possible to suspend the term that had been partially completed. It would have been necessary to impose a fixed term to commence from the date of sentencing and suspend that term.

6 The appellant relies on five grounds of appeal all of which are, as a matter of legal principle, aspects of a single claim that the sentence is manifestly excessive because the wrong type of sentence was imposed.

The appellant by his counsel contended at the hearing of the appeal that it was not open to the sentencing judge to impose a term of imprisonment (suspended or otherwise). It was also contended that the appropriate course was to release the appellant without penalty under s 46 of the Sentencing Act 1995 (WA) (the Sentencing Act).

7 Before considering the grounds of appeal it is necessary to say something about the appellant's antecedents. The appellant was raised in the Balgo community. At the age of 17 he became a father for the first time. With his partner, he moved to another Aboriginal community near Halls Creek and later to an outstation deep in the Tanami Desert. The appellant and his partner, with whom he had a second child, separated in 2005. As a result of the complainant's relationship with the appellant (although perhaps not attributable to the offences, there having been an uncharged act denied by the appellant) the complainant conceived and gave birth to a child. The appellant suffered from an undiagnosed depressive illness and indulged to excess in alcohol and drugs. He has made multiple suicide attempts. Whilst the appellant was on remand for these offences, his 13-year-old blood brother committed suicide and his uncle died in custody.

8 The appellant had a number of prior convictions including for burglary and aggravated assault occasioning bodily harm. He also has a long list of traffic convictions. On 25 May 2007, he was convicted of driving offences for which he received 12 months' imprisonment suspended for 18 months. There was also an associated breach of a bail undertaking for which he was sentenced to 3 months' imprisonment suspended for 18 months. The appellant had a total of five convictions for breach of bail and has also breached a conditional release order and an intensive supervision order.

9 The suspended terms of imprisonment which the appellant was serving at the time of sentencing for the present offences had not been breached, those offences having occurred prior to the convictions for which suspended imprisonment was imposed.

10 Section 46 of the Sentencing Act provides:

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.

11 A condition of the existence of the discretion under s 46 is that the circumstances of the offence are trivial or technical. The appellant contended that the circumstances of the offences in this case are technical. He relied on Riggall v The State of Western Australia [2008] WASCA 69, the facts of which are as follows. The appellant was convicted of two counts of indecent dealing and two counts of sexual penetration of a child of or over the age of 13 and under the age of 16 contrary to s 321(4) and s 321(2) respectively of the Criminal Code (WA) (Code). The appellant, a homosexual, was aged 22 at the time of the offences. The complainant who did not look or present as a child, told the appellant that he (the complainant) was 19 and studying at the Western Australian Academy of Performing Arts, which the appellant believed on reasonable grounds. In fact, the complainant was aged 14. The appellant's mistaken belief as to the age of the complainant caused the appellant to engage in the offending conduct. The appellant, acting on the conventional view that the defence of honest and reasonable mistake in s 24 of the Code is impliedly excluded by s 321(9) and (9a) of the Code, pleaded guilty to the offences. I will assume that is correct. Section 321(9) of the Code provides:

Subject to subsection (9a) it is a defence to a charge under this section to prove the accused person -

(a) believed on reasonable grounds that the child was of or over the age of 16 years; and

(b) was not more than 3 years older than the child.

12 Section 321(9a) provides that the defence in subsection 9 is not available where the child is under the care, supervision, or authority of the accused person.

13 The learned sentencing judge in Riggall, Keen DCJ, found that the appellant was not a person who was attracted to younger people, was unlikely to re-offend, that the complainant had been the 'pursuer' in the relationship and there was no evidence that he had been harmed by it. The appellant was a person of prior good character who demonstrated remorse. The sentencing judge imposed a community-based order with a programme requirement and a community service requirement of 100 hours of unpaid community work. The appellant successfully appealed from that sentence. This court concluded that the proper course was to impose no sentence under s 46 of the Sentencing Act and made a spent conviction order under s 45 of that Act.

14 Wheeler JA, with whom Buss and Miller JJA agreed, concluded that the circumstances of the offences were technical as required by s 46(a). She said (at [57], [59] and [67]):

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 ... 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 ...

...

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.

...

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.

15 I have reservations as to the correctness of equating the statutory term 'technical' with 'inadvertent' which, in the context of the law of contempt considered by the High Court in Bell v Stewart (1920) 28 CLR 419, means unintentional. Subject to the defence in subsection 9, the offences in s 321(2) and (4) impose strict liability. It is no defence that an accused person did not know the age of the victim or believed the victim was aged 16 or above if the age disparity is greater than 3 years. The effect of the subsection 9 defence is to place the onus on a defendant to independently verify a child's age or refrain from sexual conduct. The purpose of s 321 is not only to protect children from sexual predators but to protect children from themselves: Deering v The State of Western Australia [2007] WASCA 212. Moreover, ignorance of the law does not afford any excuse for an act or omission which would otherwise constitute an offence: s 22 of the Code.

16 However, I accept that conduct may be technical where, in the particular circumstances it is far removed from the mischief at which the relevant legislation is directed. Having regard to the parliamentary material referred to in Riggall, it may be thought that consensual sexual activity between two 15-year-olds, each aware of the others age, is far removed from the mischief at which s 321 is directed notwithstanding that it is within the unambiguous language of the section.

17 Exceptional circumstances were found in Riggall. The complainant's deceit was calculated to cause the appellant to reasonably believe the complainant was 5 years older than he actually was which in turn caused the appellant to act in response to the overtures of the complainant who suffered no proven harm from the conduct. When the appellant learned the complainant was 14, he told the complainant he could not have a physical relationship with him.

18 The circumstances of the offence in Riggall are removed from the circumstances of this case. Although the complainant told the appellant she was 16, there is no evidence that his honest and reasonable belief as to the complainant's age was causative in any relevant sense. That is not surprising as the clear inference from the police record of interview is the appellant was unaware that it was an offence to have sexual relations with a child under the age of 16. The limited scope of the defence in s 321(9) compels the conclusion that mere mistaken belief as to the complainant's age, although mitigating, cannot in isolation render the circumstances of the offence technical. Moreover, the evidence established that the complainant was socially, emotionally and physically vulnerable. The complainant who was only 13 years old lived with her grandmother and told the appellant there was an adult male living in her grandmother's house who was 'doing wrong things to her'. When the appellant decided to return to Balgo, the complainant asked to go with him which she did. As a result of sexual activity with the appellant, the complainant became a mother whilst still herself a child. And so the cycle continues. I mention the appellant's paternity not because it aggravates the offending but to illustrate the harm that can be caused to children by offences of this nature. In my view, the circumstances of the appellant's offences are not technical and thus it is not open to make an order under s 46 of the Sentencing Act.

19 In determining whether a sentence is manifestly excessive regard is had to the maximum penalty for the offence, the sentences customarily imposed for offences of that nature, where the circumstances fit in the scale of seriousness of crimes of that type and the personal circumstances of the offender.

20 Section 321 of the Code provides that a person over the age of 18 who sexually penetrates a child of or over the age of 13 years and under the age of 16 years is liable to imprisonment for 14 years. Where the offender is under the age of 18 and the child is not under his care, supervision or authority, the maximum penalty is 7 years' imprisonment.

21 A court must not impose a sentence of imprisonment unless it decides that the seriousness of the offence is such that only imprisonment can be justified or the protection of the community requires it: s 6(4) of the Sentencing Act. Further, a court must not use a sentencing option in s 39(2) unless satisfied that it is not appropriate to use one of the less serious options listed in that subsection: s 39(3) of the Sentencing Act. Moreover, suspended imprisonment is not to be imposed unless a term equal to that suspended would, if it were not possible to suspend imprisonment, be appropriate in all the circumstances: s 76(2) of the Sentencing Act.

22 This court in Simon v The State of Western Australia [2009] WASCA 10 undertook a detailed review of the sentences customarily imposed for a breach of s 321 of the Code. The review reveals that ordinarily a sentence of imprisonment is imposed for such an offence. The need for general deterrence is a weighty sentencing consideration. However, each case must depend upon its individual circumstances: Collins v The State of Western Australia [2007] WASCA 108.

23 The circumstances of the commission of the offences in this case are towards the lower level of seriousness of offences of this kind. The appellant reasonably believed that the complainant was aged 16. The complainant willingly engaged in the conduct, there being no element of pressure or advantage positively exercised by the appellant over the complainant. The evidence in the police record of interview with the complainant together with the psychological and pre-sentence reports

suggest both the complainant and the appellant were raised in dysfunctional communities in which children are not adequately protected, nurtured, guided and disciplined so as to provide them with the best opportunity to become responsible law-abiding adults who are themselves equipped to discharge the responsibility of raising children. Such deficits and disadvantage may explain the appellant's offending as an adult and the 13-year-old child's willingness to engage in sexual relations with multiple partners. On the other hand, there is likely to be a relatively greater incidence of sexual abuse of children in dysfunctional communities. I see no reason in principle why the weight ordinarily given to general deterrence should be reduced because of the disadvantage of the appellant. That would reduce the protection required for this generation of children.

24 I am satisfied the sentencing judge was correct to conclude that a sentence of imprisonment was the only appropriate sentencing option. However, the circumstances of the offending are such as to have warranted suspension of the terms of imprisonment. In determining the appropriate term of imprisonment, regard has to be given to the fact that the appellant had already spent more than 8 months in custody for these offences. A term of 8 months' imprisonment for each offence, suspended for 4 months would have been appropriate at the time of sentencing. However, because of the time that has passed since sentencing during which the appellant has been subject to the obligations associated with parole, I would impose a term of imprisonment of 6 months for each offence suspended for one month.

25 Accordingly, I would set aside the sentences imposed by the sentencing judge and in lieu thereof impose a sentence of 6 months for each offence suspended for 1 month.