THE STATE OF WESTERN AUSTRALIA -v- DORSETT [2025] WASCA 13 (17 January 2025)

1. A question was raised in the sentencing proceedings as to whether or not, as a matter of fact, D 'consented' to the act the subject of the charged offence.
2. The sentencing judge correctly observed that the absence of 'consent' is not an element of an offence contrary to s 321(2) of the Code. His Honour also correctly observed that the provision of alcohol to a child in the knowledge that the child is aged 14, for the purpose of facilitating sex, is aggravating. His Honour referred to The State of Western Australia v SJH,[7] and said that in some circumstances it might be mitigatory if it were proved that the child gave free and voluntary 'consent' to the sexual activity, particularly if the child initiated the conduct.
3. The sentencing judge made these observations on whether D gave free and voluntary 'consent':[8]

It seems, based upon what she described, the victim was what the State has described as a willing participant. Given the victim has maintained she does not have a memory of what occurred ‑ which I accept, and does not appear to have been challenged ‑ it is difficult to gauge exactly to what extent she was a willing participant.

...

I'm not satisfied the evidence is capable of going so far as to suggest that it was free and voluntary consent and initiated by the child, and nor was it submitted that I should make such a finding. Given the victim's inability to give evidence on this issue, coupled with your use of alcohol in the manner which I've discussed, I do not think such a finding could be made.

1. The sentencing judge concluded that on the evidence the question of free and voluntary 'consent' was, in the present case, 'neutral'.[9]

1. D and each of her parents provided victim impact statements. It is unnecessary to refer to them in detail. It is patently clear from them that the circumstances of the offence, particularly the victim's subsequent pregnancy and termination, have had a traumatic psychological effect upon D. As a result of the offence, D's mental health has significantly declined. She feels tormented by what has occurred to her. There can be no doubt that the offence and its aftermath have very adversely affected D and her parents, and are likely to continue to do so.

1. The respondent was 26 years old at the time of his sentencing.
2. He was born and raised in New South Wales. His parents separated not long after his birth. As a child, the respondent struggled with his speech development, which affected his confidence and ability to express himself clearly. This, in turn, has had an ongoing effect upon his ability to develop relationships and has contributed to him leading a somewhat isolated life.
3. The respondent found gainful employment after completing school in year 10, but was later terminated as a result of illicit drug use. However, in 2018, he joined the Royal Australian Navy and ceased using illicit substances. He was eventually posted to Western Australia. Due to travel restrictions imposed during the COVID‑19 pandemic, he was unable to return to New South Wales, becoming 'stuck' in this State for two years, which resulted in him feeling isolated and lonely. As a result, the respondent spent a good deal of his spare time online, seeking casual female sexual partners. It was in this context that he came into contact with D. As a result of the offence, the respondent was discharged from the Navy.
4. The respondent was a first offender at the time of the commission of the offence. Subsequently, he was convicted of an offence under the Weapons Act 1999 (WA), for which he was fined. That conviction has no relevance to the present case.
5. The sentencing judge also considered a number of character references, principally from the respondent's relatives. Generally, they speak well of him. They tend to emphasise the stress and anxiety that the criminal proceedings have caused him and indicate a willingness on the respondent's part to, as one of the referees put it, 'amend his mistakes and shortcomings since conviction'.

1. In addition to a court ordered pre‑sentence report, the learned sentencing judge was provided with two psychological reports, the most comprehensive of which was written by a registered psychologist, Ms Erin Sweeny, dated 4 December 2022. Ms Sweeny noted that the respondent's account of his offending was markedly different from that recorded in the statement of material facts. In particular, the respondent denied having any knowledge that the victim was only 14 years old, until after the offending had already occurred. Because of this, the sentencing judge expressed difficulty in accepting all of Ms Sweeny's opinions. However, as will be seen, his Honour gave some weight to Ms Sweeny's risk assessment.
2. The other report was written by a registered psychologist, Ms Sally Christopherson, and was dated 11 January 2024. Ms Christopherson wrote that the respondent had recently attended four sessions of psychological treatment. Testing revealed that the respondent was experiencing symptoms of depression, anxiety and stress as a reaction to the loss of his employment, isolation, and being faced with criminal proceedings. Ms Christopherson said that the nature of the respondent's symptoms were 'believed to be reactive'. She said that his symptoms warranted a diagnosis of adjustment disorder with depressed mood.
3. Both Ms Sweeny and Ms Christopherson recommended that the respondent continue to receive psychological counselling 'to help manage his symptoms and navigate difficult circumstances'.

1. The sentencing remarks are comprehensive. As the ground of appeal alleges implied and not express error on the part of the sentencing judge, the sentencing remarks may be briefly summarised.
2. His Honour identified the following aggravating factors:[10]
   1. At the time of the commission of the offence, the respondent had actual knowledge that the victim was 14 years old. Despite her age, the respondent had sex with her and provided her with alcohol for the purposes of making her more willing to engage in that sexual behaviour with him.
   2. The respondent engaged in unprotected sex with the victim, exposing her to the risk of sexually transmitted infection and pregnancy. The risk of pregnancy was realised. As a consequence, the pregnancy was terminated with the result that the victim has suffered significant additional psychological trauma.
   3. There were disparities between the respondent on the one hand and the victim on the other; in terms of age, power, and sexual experience. The respondent abused those disparities in order to manipulate the victim, for his own selfish purposes.
3. The learned sentencing judge also identified a number of mitigating circumstances. The most significant of these was the respondent's plea of guilty. His Honour, perhaps generously to the respondent, found that the plea of guilty had been entered at the first reasonable opportunity and applied a discount of 25% pursuant to s 9AA of the Sentencing Act 1995 (WA). On appeal, the State did not challenge this finding, nor the discount his Honour gave.
4. His Honour also took into account, in mitigation, the respondent's prior good character; his positive qualities articulated in the character references; his service in the Royal Australian Navy and the loss of his position as a result of the offence; and the fact that the respondent would be required to serve any term of imprisonment away from his family, who were in New South Wales.
5. The learned sentencing judge did not consider that the respondent was of an age where youth was still a mitigating factor. While his Honour considered that the respondent appeared to have some insight as to the consequences of the offending for the victim, he did not consider that the respondent was remorseful for what he had done.[11]
6. His Honour referred to Ms Sweeny's report in relation to his assessment of the respondent's risk of reoffending. His Honour noted that, based on the results of tests administered by Ms Sweeny, she considered the respondent's risk of reoffending to be 'above average'. Based on this, his Honour found that specific or personal deterrence (as well as general deterrence) were relevant sentencing considerations.
7. Whilst it was conceded by defence counsel that the only appropriate penalty was a term of immediate imprisonment, his Honour independently arrived at this conclusion.[12] While acknowledging that there was no tariff for offences of the kind committed by the respondent, his Honour stated that he had regard to a number of decisions of this court including The State of Western Australia v Fyffe,[13] and Tullock v The State of Western Australia.[14]

1. On behalf of the State, it was submitted that the circumstances of the offence committed by the respondent were particularly serious. The respondent, it was said, exploited the vulnerability of the victim for his own sexual gratification by plying her with alcohol and then engaging in unprotected sexual intercourse, which led to pregnancy and a termination procedure that, in turn, led to significant psychological and emotional consequences which are likely to impact upon the victim well into the future.
2. The State submitted that the sentence of 3 years' immediate imprisonment failed to properly reflect the significant aggravating circumstances of the offending and the seriousness of the offence. The sentence that was imposed was not merely low, but was unreasonable and plainly unjust. The State submitted that the intervention of this court was required to maintain proper sentencing standards, and that the respondent should be resentenced to a longer term of immediate imprisonment.
3. The respondent's written submissions stated that the sentencing judge found that the victim was a 'willing participant' in sex with the respondent.[15] As explained at [12] ‑ [13] above, the sentencing judge did not make a finding of free and voluntary 'consent'. In oral submissions at the appeal hearing, counsel for the respondent accepted that there was no finding of actual 'consent' on the part of the victim.[16]
4. In essence, it was submitted on behalf of the respondent that, despite the aggravating circumstances, particularly the victim's pregnancy and the subsequent termination of that pregnancy, implied error has not been demonstrated.
5. It was submitted that the cases cited by the State do not demonstrate the inadequacy of the sentence imposed at first instance.
6. When asked in oral argument whether, if the ground of appeal was made out, the respondent submitted that the residual discretion should be applied with the consequence that the appeal would be dismissed, counsel responded in the negative.[17]

1. The general principles applicable to a ground of appeal that asserts that a sentence is manifestly inadequate were set out in The State of Western Australia v Hussian,[18] and do not require repetition here.
2. Recently, in The State of Western Australia v MGT,[19] the offender, like the respondent in the present case, was convicted on his plea of guilty of one count of offending contrary to s 321(2) of the Code, which had resulted in the 14‑year‑old victim becoming pregnant. This court reiterated a number of sentencing principles established in previous cases, which are also of relevance to the case at hand, including:[20]
   1. The public policy and purpose underpinning s 321 of the Code is not only the protection of children from exploitation by sexual predators, but also the protection of children from themselves at an age when they may be unable to fully comprehend or cope with the social and emotional consequences of embarking upon sexual activity.
   2. The presence or absence of an element of 'abuse' is of considerable importance in sentencing for offences of the kind created by s 321.[21]
   3. When a male offender commits a sexual offence against a female victim that involves unprotected penile/vaginal intercourse, the offender's failure to wear a condom is an aggravating factor because it exposes the victim to the risk of pregnancy and the risk of contracting a sexually transmissible infection or disease. The risk is realised if the victim actually becomes pregnant, or actually contracts a sexually transmissible disease or infection, or both.
   4. There is no tariff for sexual offending (including, in particular, offending against s 321(2)) because of the great variation that is possible in the circumstances of the offending and in the personal circumstances of the offender. The sentence to be imposed in a particular case depends on its individual facts and circumstances, having regard to the maximum available penalty and all other relevant sentencing factors.
3. We have had regard to previous sentencing decisions cited by the parties including GNR v The State of Western Australia;[22] Floresta v The State of Western Australia;[23] The State of Western Australia v Fyffe; Buckley v The State of Western Australia;[24] Pallister v The State of Western Australia [No 2];[25] DRH v The State of Western Australia;[26] Brennan v The State of Western Australia;[27] Gavenlock v The State of Western Australia;[28] and Miles v The State of Western Australia.[29] Most of these cases were cited in MGT. As in that case, the cases cited by the parties are not truly comparable with the current offending and do not require detailed analysis.
4. As already mentioned, the recent case of MGT bears some factual similarities to the present case. There are, however, some differences. In MGT, the 14‑year‑old victim gave birth to the child and has the sole care of the baby. We are not prepared to say that this should make a difference to the sentence in this case. However, the respondent in MGT was older than the offender in the present case, meaning there was a greater age disparity, and he had been a trusted member of the household in which the victim lived. The offender had neurodevelopmental and psychological conditions which, to some extent, diminished his moral culpability for the offending. On the other hand, those conditions increased the importance of specific deterrence.
5. In MGT, this court allowed the State's appeal against sentence and substituted a sentence of 4 years 9 months' immediate imprisonment for the sentence of 3 years' immediate imprisonment imposed at first instance.
6. The objective criminality involved in the offending in this case was undoubtedly high. The respondent deliberately took advantage of a vulnerable child for his own sexual gratification.
7. The aggravating circumstances, when considered both individually and collectively, made the offence a particularly serious instance of its type.
8. The respondent's offending was highly predatory. He brought the victim to his house. Despite his knowledge that the victim was 14 years of age, he plied her with alcohol with the intention that it would render her more willing to engage in sexual activity with him. While it has not been suggested that the respondent sought to stupefy the victim, the provision of alcohol was clearly designed to make her more compliant. The respondent and the victim were not in any kind of romantic relationship, nor was there any evidence that the victim wanted such a relationship.
9. The respondent deliberately engaged in unprotected penile/vaginal intercourse. At the risk of repetition, this was a highly aggravating circumstance in the present case. The respondent selfishly exposed the victim to the risks of both infection and adolescent pregnancy. The risk of pregnancy eventuated. The pregnancy was terminated, causing great distress to the victim and other members of her family. While an unintended outcome, it is an obvious risk which, in the present case, the respondent apparently ignored. Thus, as a consequence of the respondent's reckless disregard for the victim's wellbeing, she has had to endure the physical and psychological trauma associated with terminating her pregnancy. Ongoing consequences for the victim have been significant and may be longlasting.
10. There were some mitigating circumstances, the most significant of which was the respondent's plea of guilty for which he received a discount of 25%, being the maximum allowable under s 9AA of the Sentencing Act. The respondent's antecedents were favourable. He had no prior criminal record; had served in the Royal Australian Navy; and as the character references show, he supported others, particularly members of his family. Having to serve his sentence of imprisonment away from his family in New South Wales has been, and will continue to be, an extra burden upon him.
11. While the respondent appeared to have some insight into the consequences of his offending, he was not found to be genuinely remorseful for what he had done. Although he was 24 years of age at the time of the offending, no mitigation was given for his youth.
12. For offending such as that committed by the respondent, the primary sentencing objectives are general and personal deterrence. Matters personal to the offender are ordinarily accorded less weight. The maximum penalty for the offence committed by the respondent reflects the inherent seriousness of the offence. Although the facts and circumstances of offences of this kind will vary, this case was undoubtedly a serious example.
13. In our opinion, the sentence of 3 years' immediate imprisonment imposed upon the respondent was manifestly inadequate, having regard to:

(a) the maximum penalty;

(b) the objective criminality involved in the offending;

(c) the vulnerability of the victim and the profound effect that the offence has had upon her including the pregnancy, the subsequent termination, and the psychological damage she has suffered;

(d) the comparable cases;

(e) the respondent's antecedents and personal circumstances;

(f) the aggravating and mitigating factors;

(g) the need to provide a proper measure of general and personal deterrence; and

(h) all other sentencing considerations.

1. To be clear, this is a case where the individual sentence that was imposed was not merely lenient, or very lenient; rather, it was a sentence that it was not open to his Honour to impose, and one which was unreasonable and plainly unjust. The ground of appeal has been made out. Subject to the application of the residual discretion, the appeal must be allowed and the respondent resentenced.

1. As explained in MGT, if this court is to allow a State appeal against sentence and impose a heavier sentence on an offender, the State must establish two matters. First, the State must make out an appellable error. Secondly, the State must negate any reason why the residual discretion of this court under s 31(4) of the Criminal Appeals Act not to interfere should be exercised.
2. Though it is not for the respondent to provide any reason why the residual discretion of this court should be exercised in his favour, counsel for the respondent did not place any reliance upon the residual discretion.
3. In our opinion, the residual discretion should not be invoked in this case. This is for two reasons. First, the sentence imposed at first instance was manifestly inadequate. Secondly, this court's intervention is required to ensure that proper sentencing standards are maintained for a serious offence contrary to s 321(2). As there is no basis for invoking the residual discretion, it is necessary to allow the State's appeal and resentence the respondent.

1. At the hearing of the appeal, counsel for the respondent raised the possibility that, as a consequence of the State's appeal against sentence, the respondent had not been permitted to undertake programmes that must be completed before he may be released on parole. An identical issue was raised by the respondent in MGT.[30] As in that case, the court ordered the parties to make enquiries and inform the court about the impact of the State's appeal against sentence upon the respondent's ability to undertake programmes before becoming eligible for parole. The information put before the court in the present appeal is, in all relevant respects, identical to the information that was put before the court in MGT. That information was set out in this court's reasons in MGT at [93] and is reproduced below.
2. The information put before the court by the parties reveals that:

(a) There is a general lack of resources within the prison system, which has resulted in a backlog of treatment assessments for prisoners. The backlog is a State‑wide issue. It exists regardless of a prisoner's security classification level or location. The triaging and prioritisation process for treatment assessments is governed by internal policies and procedures within the Department of Justice (Corrective Services), and focusses primarily on each prisoner's earliest eligibility date for parole and the date on which each prisoner will complete serving his or her sentence.

(b) The fact that the respondent is the subject of a pending State appeal has an impact on the respondent's security classification level. The relevant policy that governs a prisoner's security rating is set out in a document entitled 'Commissioner's Operating Policy and Procedure' issued by the Department of Justice (Corrective Services). Clause 4.3.2 of the document states that a prisoner who is the subject of a State or Commonwealth appeal shall not be rated as lower than medium security unless 'there is sufficient written justification in the assessments to rate the prisoner as minimum security'. It appears that cl 4.3.2 is based upon the policy consideration that on a State appeal against sentence, a prisoner's sentence may be increased and that prospect has security and disciplinary ramifications that are not present in an offender appeal against conviction or sentence, where the only realistic prospect is that, if the appeal is allowed, a conviction will be set aside or a sentence will be reduced.

(c) A prisoner's security classification level is not a relevant factor in the triaging and prioritisation process for treatment assessments. Further, the fact that a prisoner is the subject of a pending State appeal does not have any impact on the timing or availability of treatment assessments. Consequently, the respondent's security rating has not delayed his treatment assessment.

(d) The availability of rehabilitative programmes may vary between prison locations. However, none of the programmes currently facilitated by the Department of Justice (Corrective Services) is restricted to minimum security prisons. A prisoner's security classification level is therefore unlikely to contribute to any delays in accessing rehabilitative programmes.

1. In resentencing the respondent, we have had regard to the facts and circumstances of the respondent's offending; all of the materials that were before the sentencing judge; the respondent's personal circumstances, including the matters referred to at [54] above relating to the availability of programmes and the impact that the State appeal has on the respondent's security rating within the prison system. We have also had regard to the mitigating circumstances, as found by the sentencing judge and set out earlier in this judgment.
2. With respect to the plea of guilty, we would allow a discount of 25% pursuant to s 9AA of the Sentencing Act. Although there is an argument that the plea of guilty was not entered at the first reasonable opportunity, the State did not seek to challenge the finding on appeal, or for the purposes of the respondent's resentencing. In these circumstances, it would not be appropriate to allow a s 9AA discount that is different from the discount allowed at first instance.
3. Having regard to all the relevant factors, we would resentence the respondent to 4 years 6 months' immediate imprisonment. We would backdate the sentence to commence on 14 January 2024. The respondent should remain eligible for parole. The violence restraining order and the reportable offender (community protection) order made by the primary judge should remain in force.

1. The orders we would make are as follows:
   1. Leave to appeal is granted.
   2. The appeal is allowed.
   3. The sentence imposed by Astill DCJ on 15 January 2024 is set aside.
   4. The respondent is resentenced to 4 years 6 months' immediate imprisonment.
   5. The new sentence is backdated to commence on 14 January 2024.
   6. The respondent is eligible for parole.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.

[2] Brought under s 24(1)(a) of the Criminal Appeals Act 2004 (WA).

[7] The State of Western Australia v SJH [2010] WASCA 40; (2009) 200 A Crim R 228 [69] (Wheeler JA).

[13] The State of Western Australia v Fyffe [2018] WASCA 173.

[14] Tullock v The State of Western Australia [2022] WASCA 11.

[15] Respondent's submissions, pars 7 - 8.

[18] The State of Western Australia v Hussian [2020] WASCA 186 [88] ‑ [95].

[19] The State of Western Australia v MGT [2024] WASCA 136.

[20] MGT [52] - [56], [58] - [60]; and see the cases cited therein.

[21] See also, Cross v The State of Western Australia [2018] WASCA 86; (2018) 272 A Crim R 549 [46].

[22] GNR v The State of Western Australia [2015] WASCA 5.

[23] Floresta v The State of Western Australia [2015] WASCA 93.

[24] Buckley v The State of Western Australia [2015] WASCA 242.

[25] Pallister v The State of Western Australia [No 2] [2015] WASCA 221.

[26] DRH v The State of Western Australia [2021] WASCA 97.

[27] Brennan v The State of Western Australia [2020] WASCA 20.

[28] Gavenlock v The State of Western Australia [2014] WASCA 36.

[29] Miles v The State of Western Australia [2007] WASCA 258.