THE STATE OF WESTERN AUSTRALIA -v- SJH [2010] WASCA 40 (4 March 2010)

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

CITATION : THE STATE OF WESTERN AUSTRALIA -v- SJH [2010] WASCA 40

Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA

Criminal law - State appeal against sentence - Multiple counts of sexual penetration and indecent dealing by a 20-year-old man over a period of three months - Complainant aged 12 and 13 during the period of the offending - Sexual activity voluntary and initiated by the complainant - Sentencing judge imposed a suspended term of imprisonment - Whether suspension open

Criminal Appeals Act 2004 (WA), s 41(4)(b)

Criminal Code (WA), s 319(2)(c), s 320(1), s 320(4), s 321(2), s 321(4), s 321(7), s 321(8)

Sentencing Act 1995 (WA), s 6(4), s 39(2), s 39(3), s 76(1), s 76(2)

Carroll v The Queen [2009] HCA 13; (2009) 83 ALJR 579

Chan v The Queen (1989) 38 A Crim R 337

CJ v The State of Western Australia [2009] WASCA 42

Deering v The State of Western Australia [2007] WASCA 212

Dempsey v The Queen (Unreported, WASCA, Library No 960059, 9 February 1996)

Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321

Fletcher v The Queen (Unreported, WASCA, Library No 970125, 27 March 1997)

Germain v The State of Western Australia [2004] WASCA 293

Gillick v West Norfolk AHA [1985] UKHL 7; [1986] AC 112

Harrod v Harrod [1854] EngR 685; (1854) 1 K&J 4

Kakai v The Queen (Unreported, WASCA, Library No 990082, 23 February 1999)

KC v The State of Western Australia [2008] WASCA 216

Kiesey v The State of Western Australia [2005] WASCA 229

LAT v The State of Western Australia [2005] WASCA 237

Lauritsen v The Queen [2000] WASCA 203; (2000) 22 WAR 442

Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665

Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357

Marris v The Queen [2003] WASCA 171

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

O'C (1989) 41 A Crim R 360

Orchard v The Queen [2004] WASCA 23

Paparone v The Queen [2000] WASCA 127; (2000) 112 A Crim R 190

Poulton v The State of Western Australia [2008] WASCA 97

R v Aloia [1983] WAR 133

R v Avery [2002] WASCA 136

R v Clare (Unreported, WASCA, Library No 920423, 18 August 1992)

R v Hunt [2002] WASCA 324

R v Liddington (1997) 18 WAR 394

R v Olbrich [1999] HCA 54; (1999) 199 CLR 270

R v Storey [1998] 1 VR 359

R v Sweetlove (Unreported, WASCA, Library No 960555, 23 September 1996)

R v Taylor [1977] 1 WLR 612; (1977) 64 Cr App R 182

R v Tsiaras [1996] VicRp 26; [1996] 1 VR 398

R v Verdins [2007] VSCA 102; (2007) 16 VR 269

Riggall v The State of Western Australia [2008] WASCA 69

Simon v The State of Western Australia [2009] WASCA 10

Skipworth v The State of Western Australia [2008] WASCA 64

The State of Western Australia v ABM [2004] WASCA 90

The State of Western Australia v Akizuki [2008] WASCA 267

The State of Western Australia v Atherton [2009] WASCA 148

The State of Western Australia v Bennett [2009] WASCA 93

The State of Western Australia v Cunningham [2008] WASCA 240

The State of Western Australia v Johnson [2009] WASCA 224

The State of Western Australia v Lee [2008] WASCA 150

Thompson v The Queen [2005] WASCA 223; (2005) 157 A Crim R 385

Thorn v The State of Western Australia [2008] WASCA 36

Vagh v The State of Western Australia [2007] WASCA 17

Van Doorn v The State of Western Australia [2008] WASCA 177

Weininger v The Queen [2003] HCA 14; (2003) 212 CLR 629

Wignell The Queen, (Unreported, WASCA, Library No 920668, 4 December 1992)

1 OWEN JA: I am grateful to Wheeler JA and to Buss JA for their respective analyses of the legal and factual circumstances relating to this appeal. Their Honours have dealt comprehensively with the issues leaving little that I can usefully add. At the conclusion of the hearing Wheeler JA and I were of the same view; namely, that the appeal should be dismissed. With one caveat, the reasons advanced by Wheeler JA for reaching that conclusion mirror my own and I express agreement with them.

2 The caveat relates to the material under the headings 'Ground 1 - purposes of the legislation' and 'Adolescent sexual experiences: the reality'. In my view this appeal can be decided without having to deal finally with the important and broad ranging issues dealt with in those sections. While I do not necessarily disagree with her Honour's analysis of those issues they were not the subject of much discussion at the hearing and I would prefer to reserve my position on them to another day. In Deering v The State of Western Australia [2007] WASCA 212 I (along with Miller JA) agreed with Wheeler JA. Having read those reasons again I confirm my agreement generally, but in particular with what Wheeler JA said at [16] to [18]. For the purposes of this appeal, I am content to adopt those observations about legislative purpose.

3 Not every instance of sexual penetration must inevitably result in a sentence of imprisonment to be served immediately. The real criminality of the individual offender's conduct, viewed in all of the circumstances pertaining to the actual offences that were committed and balanced against the personal circumstances of the individual offender and other mitigating factors will dictate what sentence is appropriate in the given case.

4 Here, the respondent sexually penetrated and indecently dealt with a girl who was between the ages of 12 and 13. What he did was legally wrong and it involved the commission of criminal offences. But, on the evidence, the court can proceed confidently on the view that the complainant initiated some of the sexual activity and was a willing participant in it. There is no evidence that the respondent acted in a predatory manner, coerced the complainant or misused the age difference between them to persuade the complainant to engage in sexual activity. In those circumstances the degree of the abuse (and accordingly the level of moral culpability and criminality) may be (and in my view in this case, is) less than would otherwise be the case.

5 In my view the sentence of 3 years' imprisonment properly marked the respondent's offending conduct. But when the circumstances are viewed as a whole it was open to the sentencing judge to suspend the term. In my view no error has been demonstrated either in her Honour's reasons for adopting that option or in the result.

6 Like Wheeler JA, I believe the proper disposition of this matter is to refuse leave on ground 2, grant leave on ground 1 but to dismiss the appeal.

7 WHEELER JA: This is a State appeal against sentence. The application for leave to appeal was referred to the hearing of the appeal. On 14 December 2009, at the hearing of the appeal, this court by majority dismissed the appeal. Although the transcript does not record a view concerning the application for leave, I was of the view that the application for leave should have been granted in relation to ground 1, since it raised difficult issues in relation to which the State's case was clearly arguable. However, in relation to ground 2, I would not have granted leave. I would not have upheld ground 1, and for that reason dismissed the appeal entirely.

9 The respondent was convicted on his own pleas of guilty of six counts of sexually penetrating a child under the age of 13, six counts of indecently dealing with a child under the age of 13, three counts of sexually penetrating a child between 13 and 16 years of age, and two counts of indecent dealing with a child aged between 13 and 16 years. He received a total effective sentence of 3 years' imprisonment, suspended for 2 years, with conditions.

10 Although there were numerous counts of indecent dealing, it is clear from the facts that they reflect a charging practice by the DPP, rather than discrete encounters between the respondent and the girl in question. The indecent dealings reflect occasions on which, after kissing and cuddling in the usual way, he fondled her breast prior to (usually) having sexual intercourse with her, or prior to, on one occasion, digital penetration of her vagina.

11 Because of the nature of the offences and the age of the girl in question, I will refer to her as "Dianne", which is not her name. Dianne and the respondent had met many years previously because she was

friendly with the respondent's younger sister. The two girls were approximately the same age. During the first half of 2008, when Dianne was 12, Dianne and the respondent began to spend time together and an emotional relationship developed between them. It is clear that the relationship became very close. They regarded themselves as boyfriend and girlfriend. During November 2008, the first sexual intercourse occurred. Dianne turned 13 in December 2008. Sexual intercourse occurred on a number of occasions, until the relationship ended in traumatic circumstances which I shortly describe.

12 On 8 and 9 February 2009, Dianne participated in two visually recorded interviews with police officers. It seems clear that she was taken to the police station by her mother. Nothing in the papers before us reveals whether she was advised that she had no legal obligation to speak to police. Her presentation at the interviews tends to suggest some reluctance.

13 During the course of the first interview, Dianne said that she had been staying at the respondent's house "pretty much every weekend". She said they started "our relationship" in July, and described some ups and downs in that relationship. She said at first that the first time they had sex was about three weeks after they "got together", which would have been in August. It is clear from the dates on the indictment that, as a result of what she said later, the view was taken that intercourse had commenced later. In any event, concerning the first occasions, she volunteered "he didn't force it on me, I asked him for it". She was then asked about the last time she and the respondent had sex, and she described what, but for her age, would have been an entirely unremarkable occasion of consensual sexual intercourse, followed by an unremarkable evening of sitting together, talking. She also described another occasion of sexual intercourse. She recalled that occasion because they had, a little earlier on the same day, attempted to have intercourse, but she had said, "I don't think it's going to work", to which he replied, "Yeah, same", and desisted. However, they had sex later on that day.

14 On 9 February 2009, Dianne was somewhat more forthcoming in her description of what had occurred. She described an occasion of sexual intercourse, when she had been at the house where the respondent was living, and some of his friends were present and were drinking. The respondent was not drinking because he did not like to drink alcohol, and she was not drinking because the respondent would not allow it. It appears that the young men were playing a computer game. She said that she asked the respondent to come into the bedroom because she was bored watching them play the game, and that once they were in the bedroom, she then asked if he would like to have sex with her. He asked if she was sure she wanted to, and she replied that she was.

15 One might wonder whether, being the respondent's girlfriend, Dianne was behaving protectively towards him in insisting that intercourse was her idea in the first instance. However, the account she gives is made more plausible in light of three factors. One is that there is some evidence which suggests that she had had a sexual experience at an earlier time with another person. It was therefore more likely that she would regard intercourse as a normal incident of a boyfriend/girlfriend relationship, even at her age. Another is that the respondent's mother had apparently been concerned at one time that Dianne was demonstrating an interest in the respondent, and had asked her to keep away from him, so that it seems Dianne had taken some initiative in the relationship generally. Third, from her descriptions of the relationship, it seems unlikely that the respondent would have brought what she could have perceived as any degree of pressure to bear upon her. She described him in the following way:

... he is my best friend and also my boyfriend. He's not a very outgoing person .... [h]e's scary to most people, to me he's kind of a big teddy bear and really soft and easy to break down.

He has a great personality, he likes - - he's sort of a child in his own way, he collects Yugio cards and plays Runescape and ...

16 Finally, asked if there was anything else she wanted to add to her interview, she said:

... he's a very loving, caring person towards me, he respects me and the only reason I'm with him is because when I'm with him I feel protected, I feel safe and he's pretty much my sanctuary ... [s]omeone I have to talk to.

17 I have mentioned that the relationship ended in traumatic circumstances. It appears that Dianne's mother did not know that the respondent and Dianne were in a relationship of any kind. Dianne had told her mother that on the evening of 6 February 2009, she would be staying with a friend. Dianne's mother discovered, however, that Dianne was not with that friend, and she was unable to locate Dianne. She was naturally very worried when she thought her daughter was missing. Dianne's younger sister also was quite upset. Inquiries led to the house occupied by the respondent. Dianne's mother and older sister found Dianne hiding in a wardrobe in the house. Dianne was dragged from the wardrobe by her hair, kicking, screaming, and saying that she would not come and that she "could do what she wanted".

18 On 7 February, police attended the respondent's house, searched it and questioned him. He admitted sexual intercourse, and the indecent dealing, on at least eight occasions. He entered fast-track pleas of guilty.

19 Nothing in Dianne's recorded interviews suggests that these offences had any adverse effect upon her. There was a victim impact statement handed to the learned sentencing judge. It has been lost. The only clue to its contents comes from what her Honour said, which was:

... she has indicated that she has required medication, she has had counselling and she had been through a lot of pain and she is concerned about grades at school and her family falling apart.

20 Without seeing the whole of the victim impact statement, it is not possible to know what to make of this. It is, as her Honour clearly perceived, somewhat at odds with what Dianne said in her interviews with police. It is impossible to know if those matters to which her Honour referred are consequences of the offending, or of the loss of her relationship with the respondent, or consequences of conflict with her family about her role in the offending, or to what extent they pre-date the offending. It is clear that there were difficulties in Dianne's relationship with her family, and at school which pre-dated or co-existed with the offending. Her older sister's witness statement shows that her older sister was prepared to volunteer that she distrusted Dianne, and in Dianne's interview with police she said that she had been staying with the respondent "mostly to get away from home". Also, in her interview with police, she described an occasion on which problems she was having at school caused her to cry, and the respondent comforted her. In any event, in relation to the victim impact statement, it should be noted that this court is at a disadvantage compared to the learned sentencing judge, who had the opportunity to read it.

22 Both the pre-sentence reports and the references tendered on behalf of the respondent make it clear that his parents' relationship was marred by domestic violence because of his father's alcoholism. His mother eventually had to relocate to Perth, from the country town in which they were living, for this reason. She left the respondent living with his father, so that he could finish his apprenticeship.

23 Despite his home situation, he had done well at school, particularly in mathematics. He was on the student council. However, he left school part-way through year 11 and then completed an apprenticeship in butchery. He left one employment position and moved to Perth. He obtained employment at a sofa making factory, but resigned from that position for reasons which he associated with the stress of being charged with these offences. He rarely drinks and does not use illicit drugs.

24 It appears clear from the reports that at the time of the offending, the respondent was a relatively lonely and isolated young man. He presented as immature. A number of the references from those who knew him well commented on his immaturity.

25 He had previously had a sexual relationship when he was about 14 with a girl of about the same age and had, since that time, when he was between 18 and 20, had another relationship with a girl a couple of years younger than himself.

26 All of the psychiatric report, the psychological report and the pre-sentence report refer to "cognitive distortions", or words to that effect, those distortions apparently being that the respondent believed himself to have been in a relationship with Dianne and that he did not see what harm he had done her, although he acknowledged that his behaviour had been illegal. It appears that none of the authors of those reports had before them a transcript of Dianne's interview with police. Rather, their only information about the offending and its effects, if any, on Dianne, stemmed from the mechanical recital of the physical facts which is to be found in the statement of material facts. It is not surprising, therefore, that they considered that the respondent's views were "distortions".

27 However, on her account as well as on his, the respondent plainly had been in a relationship with Dianne. Although it is now, I think, unusual, in former times it was not uncommon for young people of high school age to form relationships which were enduring. I am aware of such relationships in my parents' generation, which led to marriage. Of course, community attitudes of the time were more strongly opposed to sexual intercourse prior to marriage, so that such relationships did not involve intercourse at a young age. However, the point of these observations is that it would be wrong to suggest that it was not possible for Dianne and the respondent to form a loving relationship.

28 It is not clear to me that the respondent's inability to see what harm he had done Dianne was a "distortion". It does not appear, on the materials before us, that the sexual relationship between them would of itself have caused her any identifiable harm; although, as I have noted, we do not have the victim impact statement.

29 However, the respondent's views were distorted, to the extent that he may have thought that that relationship was continuing, since it had terminated in the traumatic circumstances I have described.

30 This ground is directed at the order for suspension of imprisonment. The ground itself is formulaic, with the usual complaints that the suspension of the term failed adequately to reflect the serious nature of the offences, to reflect the need for specific and general deterrence, and so on. However, there are three broad limbs to the ground. In one, the State asserts there were a number of "objectively serious" features in this particular case. Also, it is asserted that a number of identified cases are very similar to the present, and that in those cases the terms were not suspended. The other, overarching, theme relates to the purpose of ss 320 and 321 of the Code, and the relevance, if any, of consent. I deal with those matters last.

31 So far as the objectively serious features are concerned, they are found in par 25 of the appellant's written submissions. I set them out below, and underneath each, a brief comment upon them.

(a) the respondent first met the complainant when she was approximately 5 years old as a result of her friendship with the respondent's much younger sister.

32 I am unable to see what makes this a serious feature of the case. There is no suggestion that the respondent was ever in any position remotely resembling a position of authority in relation to Dianne. If anything, her having come to know the respondent in the way described might tend to suggest that he was a person with whom she would have felt comfortable, and whose advances she may well have been able to reject had she wished to do so.

(b) at all times the respondent was well aware of the complainant's age, indeed he purchased a gift [sic for] her thirteenth birthday.

33 It is usual in these cases for the offender to have at least a good idea of the complainant's age. This feature indicates no more than that the respondent would have known that having intercourse with Dianne was illegal, since she was well under 16.

(c) after a period where the two were not in contact, the respondent obtained the complainant's telephone number and initiated contact with her, at which time the inappropriate relationship commenced.

34 It is not suggested, and there was no evidence which could support a suggestion, that the respondent contacted Dianne in order to have a sexual relationship with her. This matter is therefore irrelevant.

(d) there were at least 8 separate occasions when the respondent had sexual contact with the complainant, with all of the offences occurring at his own residence.

35 I accept that repetition of conduct which an offender knows to be illegal, as this respondent did, renders the offending more serious.

(e) the complainant was only 12 years of age when the sexual offending commenced.

36 Dianne was approximately six weeks short of her 13th birthday when the offending commenced. There is therefore a higher statutory maximum penalty available. The high statutory maximum is a relevant factor.

(f) there was a significant age difference of around 8 years between the respondent and the complainant.

37 The disparity seems to have been in chronological, rather than in emotional, age or maturity. The difference is certainly not so great as to make unlikely any relationship, had the two been older. To put the matter in perspective, a "disparity in age" of around eight years is not unusual between married couples in our society.

(g) the offending had emotional and psychological effects on the complainant (as is apparent from the victim impact statement).

38 I have already explained why I am unable to accept this proposition.

(h) the respondent's discussions with the psychiatrist and psychologist revealed a concerning lack of insight into the seriousness of his actions.

39 Given the circumstances, it is hardly surprising that the respondent was baffled about what he may have done that was harmful, as opposed to unlawful. That is particularly so, having regard to the fact that the respondent himself was well under the age of 16 when he had his own first sexual experience, and having regard to what are apparently sexual mores in the wider community, to which I later return.

40 Before I turn to deal with the particular cases relied upon by the appellant, I should note that there are cases which illustrate the proposition that suspension of a term of imprisonment is not out of the question in cases involving sexual penetration of a child. See, for example, The State of Western Australia v ABM [2004] WASCA 90, Marris v The Queen [2003] WASCA 171, Simon v The State of Western Australia [2009] WASCA 10. The cases which the State submits are similar, however, are the following.

41 Deering v The State of Western Australia [2007] WASCA 212 involved an offender of 23 years of age and a complainant of 13. There were a number of counts of penetration over a period of 10 months. The sentence imposed was 2 years 6 months' imprisonment, following a fast-track plea of guilty. There are also a number of differences between that case and this. Although it was accepted that the complainant in Deering had later invited and encouraged sexual intercourse, there was a degree of persuasion by him in relation to the first two counts. He was somewhat older than the present respondent, although, of course, Dianne was marginally younger than the complainant in Deering when these offences commenced. Importantly, however, it should be noted that in Deering serious consideration was given to suspending the term of imprisonment imposed. Deering establishes that her Honour was not in error in this case in considering that suspension was at least an option which required serious consideration.

42 In Van Doorn v The State of Western Australia [2008] WASCA 177, there were counts of indecent dealing, one of attempted sexual penetration, two of sexual penetration and one relating to using electronic communications. The appellant in that case and the complainant were attracted to each other. She was between 13 and 14 years of age. He had "neither pressured nor been unkind" to her. He was, however, 29 years of age.

43 Finally, the State submits that the case of R v Avery [2002] WASCA 136 was "factually very similar" to the present. It was not. The ages were similar, the complainant being 13 and the offender 20. The offending period was shorter. Although the offences involved no physical coercion, however, it is plain that Avery was the initiator and that he had initiated his contact with the complainant because she was 13 years old, and apparently for no other reason. He had originally "met" her on the Internet over a chat line. She there portrayed herself as being aged 14, but soon revealed that she was 13. The respondent initiated sexually explicit conversation on the chat line, before he had ever met her face-to-face. In response to a somewhat obliquely expressed ground of appeal in which the State had asserted that there was a need for deterrence in circumstances "where the offender has used the Internet to establish contact with the victim", the court responded that the relevance of the manner in which the respondent and complainant met "escapes us". It cannot have escaped the court's attention in Avery, however, that the behaviour of the respondent in that case was the behaviour of a sexual predator - that is, of a person who regarded the young age of the complainant as effectively a reason for seeking to establish a sexual relationship with her. Even so, having regard to Avery's immaturity, previous good character, and apparent prospects of rehabilitation, the sentence imposed was only one of 4 years' imprisonment.

44 In any event, while it is, of course, necessary to have regard to sentences imposed in other cases, and to the circumstances of those cases, in order to ensure that there is no undue inconsistency in sentencing, it is important to guard against any tendency to compare the circumstances of other cases in a superficial way, as if looking at a checklist of factors mentioned in other cases would, without more, produce a satisfactory result. That produces the "micro detail" analysis which is of somewhat limited value: KC v The State of Western Australia [2008] WASCA 216 per Buss JA at [49].

45 While reference to prior cases can often be useful, it must always be remembered that the duty of a sentencing court stems, ultimately, from the legislation creating the particular offence, and from the principles enunciated in the Sentencing Act 1995. The reproduction of passages from prior cases, and the attempt to apply the results reached in those cases to the unrelated facts of later cases, may, if done without very careful consideration, be productive of error.

46 In my view, error has occurred in this area in relation to the repetition, sometimes without appropriate analysis of the circumstances, of the proposition that "only in rare and exceptional circumstances should a non-custodial sentence be imposed for an offence of sexual penetration of a child under s 321(2)". Those observations appear to be traceable back to the following passage in R v Sweetlove (Unreported, WASCA, Library No 960555, 23 September 1996), which has often been either quoted or cited since (directly or indirectly; for example, Kakai v The Queen (Unreported, WASCA, Library No 990082, 23 February 1999), at 7 per Malcolm CJ, and most recently Simon v The State of Western Australia at [22]). What Malcolm CJ said in Sweetlove was, relevantly:

While it may be acknowledged that there is no tariff for sexual offences, there are clear indications in the authorities that only in rare and exceptional circumstances should a non-custodial sentence be imposed for an offence of sexual penetration of a child under s 321(2). This is certainly the case in the context of penile penetration: cf Podirsky (1989) 43 A Crim R 404 at 411 per Malcolm CJ. The same approach has been followed in relation to acts of oral penetration: O'C (1989) 41 A Crim R 360; The Queen v Clare, unreported; CCA Sct of WA; Library No 920423; 18 August 1992; and Wignell v The Queen, unreported; CCA SCt of WA; Library No 920668; 4 December 1992.

47 I accept the general propositions enunciated, that there is no tariff for sexual offending (particularly perhaps of this kind) and that a custodial sentence would be the usual disposition one would expect for an offence pursuant to s 321(2). However, it is difficult to see the authorities cited in that passage as supporting the proposition enunciated in relation to the "extreme rarity" of a non-custodial disposition, because they were very different cases. While Podirsky had entered pleas of guilty to a number of counts of offences pursuant to s 321(2), he had also entered a plea of guilty to one count of sexual penetration without consent. The child victim in that case was his stepdaughter, the touching started at the age of about 8 or 9, and there were clear indications that there was positive resistance on the majority of occasions (the offender's submission only went so far as to assert that "sometimes" she had agreed). It is difficult to see that case as establishing any principle which would necessarily be relevant to a consensual encounter, involving an older child and an unrelated adult much nearer to her own age. The case of O'C (1989) 41 A Crim R 360 did not relate to oral penetration, but to digital penetration without consent (absence of consent being an element of the offence). R v Clare (Unreported, WASCA, Library No 920423, 18 August 1992) was not a sexual offence at all, but a case of burglary. Wignell The Queen, (Unreported, WASCA, Library No 920668, 4 December 1992) did involve oral penetration, but again the offence is recorded as being one of sexual penetration without consent, presumably in contravention of s 325 of the Code, rather than s 321(2).

48 Finally, it should be noted that Sweetlove cannot be seen as supporting a proposition that only a sentence of imprisonment to be served immediately is appropriate to all sexual offences involving children. That is because it was decided prior to 4 November 1996, the date upon which the sentencing option of a suspended term of imprisonment first became available in relation to State offences.

49 Although as a general rule, then, it is self-evident that sexual offences against children are among the most serious types of offending, and will generally result in an immediate custodial sentence, the principle which is traceable back to Sweetlove is, having regard to its source, sometimes overstated.

50 This is a topic which I think requires a little attention, although I am somewhat surprised that it is necessary in light of recent authority, particularly Marris, Deering and Riggall v The State of Western Australia [2008] WASCA 69.

51 The State's submission in relation to what it describes as "the purpose" of ss 320 and 321 is, as articulated in par 20 of the written submissions:

The law recognises that it is undesirable for young people to embark upon sexual activity at an age where they may be unable to fully comprehend or to cope with the social and emotional consequences of doing so.

52 It appears that this is effectively the concept that the purpose of the legislation is to protect children "from themselves". As has been explained in the cases referred to above, that is a subsidiary purpose of the legislation, and it is important to understand in that context what is meant by protecting children "from themselves". I return to that issue in a moment.

The legislation is directed toward sexual activity involving some element of abuse. 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.

54 As that passage is a quote from my own reasons in Deering at [17] - [18] (Owen and Miller JJA agreeing) which I repeated in Riggall at [19] (Buss and Miller JJA agreeing), it is not surprising that I entirely agree with it. However, it is important to note the use in that passage of the word "evidenced". Abuse is not established - is not proved - by mere disparity in age. As a general rule, the greater the disparity in age, the more likely it is that there will also be disparity in power (physical, social, emotional), in understanding, in intellect and so on, and the more likely it is therefore that any consent to sexual activity will have been a result in whole or in part of use of that greater power. However, this is not a matter of simple mathematical calculation. To take an obvious example, a 16-year-old is plainly likely to be vastly stronger and relevantly more sophisticated than an 8-year-old, but the same eight-year gap between a 24-year-old and a 16-year-old will result in a narrower imbalance (and in some cases no imbalance at all), while in relation to a 24-year-old and a 32-year-old one could assume, in the context of many relationships, that the age difference would be irrelevant. Further, as I pointed out in Riggall at [43], if the Parliamentary Debates are a guide, there is a range of views in the community about whether, for example, young men are generally less mature than young women and about the likely maturity of young people at different chronological ages. Those differences no doubt reflect different experiences with the widely varying maturity of different young people. Disparity in age is, then, a relevant factor, but its significance may vary considerably between cases.

55 In this State, the proposition that the purpose of s 321(2) is to protect persons under the age of 16 "from themselves" appears to date back to 1996. It is contained in Dempsey v The Queen (Unreported, WASCA, Library No 960059, 9 February 1996) (at 11 - 12 per Kennedy J), repeated in Fletcher v The Queen (Unreported, WASCA, Library No 970125, 27 March 1997) (at 13 - 14 per Malcolm CJ), and repeated again in Kakai (at 8 - 9, again per Malcolm CJ).

56 In Dempsey, the assertion of legislative purpose is just that; it is a bare assertion. There is in that case no examination of the statutory structure or context, other than a general allusion to the substantial penalties provided, and there is no examination of the broader legal context, or of the Parliamentary Debates. Fletcher cites Dempsey as authority, without question. Kakai cites Dempsey and Fletcher, and refers also to the English case of R v Taylor [1977] 1 WLR 612; (1977) 64 Cr App R 182. This last case refers to some discussions in 1885, when Parliament in the United Kingdom raised the relevant age under which it was unlawful to have intercourse with a girl from 13 to 16. It suggests that one of the reasons given at the time was "to make it more difficult for young girls to drift into prostitution". In that context, the Court of Appeal said (at 186):

The law exists for the protection of girls. It is particularly necessary in the case of wanton girls because, as was pointed out in argument, it is this type of girl who wanders away from her home and her village to the local town and from the local town to London. The evil which these men were doing (in that case) was to confirm her in her wantonness.

57 By contrast, there is no evidence whatever that a possible drift to prostitution played any part in the legislature's concerns in the enactment of s 320 and s 321.

58 The reference to the evil of "wantonness" does have some echoes in the cases in this State, despite the difference in legislative intention. As I noted in Riggall at [18], there is sometimes a flavour about some cases which suggests that any sexual feeling or experience whatever is something inherently harmful, against which young people of any level of understanding and maturity must be protected. There is, in some of the cases, what appears to be a related suggestion that sexual intercourse necessarily results in the "corruption" of a child: for example, Sweetlove (per Malcolm CJ at 10 ), Dempsey (per Murray J at 7) and Avery (at [18]) (result of offending described as the complainant's "corruption by an older man so that she became a willing partner in the unlawful activities ..."). The Macquarie Dictionary describes "corruption" as either the state of being corrupt (that is, dishonest, debased, perverted, wicked, evil, putrid, infected, tainted, morally lowered), or as moral perversion or depravity. Whatever views may have been taken in earlier times about the need for purity (particularly female purity), I am unable to accept that the legislature was concerned about sexual activity with children because of a perception of that kind. Certainly, the Parliamentary Debates reveal no such purpose. "Corruption" is a red herring.

59 Although legislation necessarily involves the drawing of arbitrary lines in this area, an examination of the arbitrary lines drawn by s 320 and s 321 reveals that the legislature had a different understanding of the mischief with which it was concerned from that assumed in many of the cases. I discussed the relevant context and the legislative purpose so far as it emerged from the Parliamentary Debates at some length in Riggall. To summarise, in a necessarily simplistic way, that rather lengthy discussion, the context and concerns seem relevantly to have been as follows:

• Prior to the reforms begun in 1985, it was extremely difficult to prosecute to conviction serious sexual offences against children (including, particularly, offences where consent was lacking or the offences were intra-familial) and punishments of those who were convicted were hopelessly inadequate.
• The underlying concern was not that children were sexually active, but that sexual abuse of children was inadequately punished or unpunished.
• There is often a disparity in power, in intellect, in maturity and in sophistication between a child and an adult which will have the effect that a child's apparent consent (or actual consent) to sexual contact with the adult will stem from unacceptable pressure, or persuasion, or influence on the part of the adult.
• Many children may not be able to fully comprehend or cope with the social and emotional consequences of sexual activity, particularly at younger ages.
• The legislation was therefore designed to facilitate prosecution to conviction (and the imposition of appropriate penalties) in relation to adults who have sexual intercourse with children without the consent of the child, or who procured the consent of the child through the use of their superior position, or in circumstances where the child did not really appreciate, or was unlikely to appreciate, what was involved in the sexual contact.
• It was clearly recognised that culpability would vary greatly, and that, technically, offences would be committed by young people whose culpability the community would probably regard as limited. Those matters were left to the discretion of prosecuting authorities and to the exercise of a balanced sentencing judgment by the courts.

60 I did not refer in Riggall in any detail to the scheme of s 320 and s 321, but I would note that they reinforce the views I have set out above. Section 319(2)(c) provides that a child under the age of 13 is incapable of giving consent for the purpose of ch XXXI. The result is that no defence involving the child's consent is available. The age of 13 was presumably selected as an appropriate arbitrary line, in light of the matters I have discussed above. Other definitions in s 319 make it clear, however, that the legislature contemplated that a child who could not consent in law might, nevertheless, consent as a matter of fact. For example, the definition of "deals with" refers to an act which "if done without consent" would be an assault.

61 Section 320 provides that sexual penetration of a child under the age of 13 attracts a potential maximum penalty of 20 years' imprisonment. So far as older children are concerned, s 321 sets out a hierarchy of penalties, so that the "standard" maximum is increased if the child is under the care, supervision or authority of the adult, and halved if the offender is under the age of 18 and there is no relationship of care, supervision or authority. Those penalties seem to me clearly to reflect a concern with disparity in power, which is more likely to exist in relation to the particular matters identified by the legislature. Section 321(9) provides a limited defence based both upon the belief of the offender as to the child's age and the age difference between the two, which again may be taken as an indicator of likely disparity in power. Sections 321(10) and (11) effectively provide a defence if the offender is married to the child, apparently reflecting a view that sexual intercourse is not, in all circumstances, harmful to a child. I note that this is compatible with the assumption of the common law which permitted a female to enter into a valid marriage contract at 12 years of age (Harrod v Harrod [1854] EngR 685; (1854) 1 K&J 4).

62 Turning to related sections, s 322 creates an offence relating to sexual contact with a child who is over 16, but is under the care, supervision or authority of the offender, with a penalty less than the more serious of the penalties pursuant to s 321 (reflecting both an assumption about likely disparity of power and an assumption about increased ability to resist that authority as a child matures). Finally, offences of sexual penetration without consent pursuant to s 325, s 326 and s 329 are aggravated where the child is between 13 and 16 years of age, or if the offender is in a family or domestic relationship with the child, or where the child is a lineal relative of the offender, and penalties vary with the age of the child.

63 As I have noted, the lines drawn by the provisions of ch XXXI of the Code reveal a legislative desire not to lump all sexual offences against children into one category, but to identify factors which are likely to affect a child's ability to understand, and to consent to or to resist, sexual contact with another. However, the substantive criminal law necessarily deals in the drawing of arbitrary lines, in most cases. Conduct must be able to be clearly identified as either an offence or not an offence. There are no "partial" offences.

64 Sentencing, however, is a different matter. It is at that point that close attention to the legislative purpose, the interests of the community in protecting children, the interests of the victim of an offence, and the real culpability of the offender, ought to be reflected in a sentence which is appropriate to all of the circumstances of the case. It is desirable to recall, in this context, the observations of Scarman LJ, made in the context of controversy concerning possible sexual activity by young girls, in Gillick v West Norfolk AHA [1985] UKHL 7; [1986] AC 112. He observed, at 186:

Certainty is always an advantage in the law, and in some branches of the law it is a necessity. But it brings with it an inflexibility and a rigidity which in some branches of the law can obstruct justice, impede the law's development, and stamp upon the law the mark of obsolescence where what is needed is the capacity for development. The law relating to parent and child is concerned with the problems of the growth and maturity of the human personality. If the law should impose upon the process of 'growing up' fixed limits where nature knows only a continuous process, the price would be artificiality and a lack of realism in an area where the law must be sensitive to human development and social change. If certainty be thought desirable, it is better that the rigid demarcations necessary to achieve it should be laid down by legislation after a full consideration of all the relevant factors than by the courts confined as they are by the forensic process to the evidence adduced by the parties and to whatever may properly fall within the judicial notice of judges. Unless and until Parliament should think fit to intervene, the courts should establish a principle flexible enough to enable justice to be achieved by its application to the particular circumstances proved by the evidence placed before them.

65 It would be an error, in my view, to substitute for the flexibility which Parliament has left to the courts in sentencing any suggestion of a sentencing code derived by reference to the cases in this, or any other, area.

Demonstrating consent, for sentencing purposes

66 A factor which may have contributed on some occasions to a view that severe punishment is called for, even in cases where it is accepted that there has been consent to sexual contact, is a mistaken view of the way in which such consent is established for the purpose of sentencing. In those cases, lack of consent, or at least reluctance or ambivalence has been clearly indicated by complainants, while consent (often in the context of a "relationship") has been asserted by offenders. In those of these cases the court has apparently accepted the proposition that the court is required to sentence on the version of the facts most favourable to the offender (that is, on the basis of consent): see, for example, Fletcher. It would indeed be unfortunate if legislative reforms which were designed to ensure that it was easier to convict, and appropriately punish, those who have abused children had the result that erroneous assumptions were made in many cases about a child's consent, or even acquiescence. It would equally be unfortunate if reforms designed in part to reduce the need for children to undergo the ordeal of a trial, resulted in many cases in the trial of an issue of consent. It seems to me that concerns about possible outcomes of this kind, may have led in some cases, to a suggestion that consent is of little, if any, relevance for sentencing purposes.

67 However, in my view, the solution to the concerns mentioned above lies, not in asserting that consent is irrelevant, but in a focus upon the way in which, if relevant, it is established.

68 The view that, where an offender asserts consent, a court must assume it, is clearly wrong: R v Aloia [1983] WAR 133; R v Olbrich [1999] HCA 54; (1999) 199 CLR 270. If it is mitigatory, as in my view it is, consent is something the offender must establish and in most cases that will not be an easy task. In this context, I repeat what I stressed in Riggall at [49]. That paragraph reads:

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.

69 Proved absence of consent or, particularly, knowledge of absence of consent is aggravating: Poulton v The State of Western Australia [2008] WASCA 97 per McLure P at [3]. I would add that it may be aggravating that the consent has been procured through what might be described as persistent grooming or persuasion, or by the use of some other sort of influence falling short of coercion. Absence of evidence concerning consent is, of course, neutral. However, knowledge of free and voluntary consent, particularly where the child has initiated the conduct in question, would appear to me to be mitigating, when regard is had to the legislative structure and purpose described above. Whether a fact is aggravating or mitigating is to be considered in connection with the purpose for which it is to be used: R v Storey [1998] 1 VR 359 at 371, cited in Weininger v The Queen [2003] HCA 14; (2003) 212 CLR 629, 638. If the primary purpose of the legislation is to protect children from "abuse", actual absence of abuse, would appear, necessarily, to be mitigatory.

70 The perceptions of the mischief at which ss 320 and 321 were aimed, which emerge from the authorities referred to above, and the proposition that the ability to give a meaningful consent to sexual activity varies from child to child, but generally increases as age increases, are borne out by studies concerned with the actual behaviour and experiences of adolescents.

71 The following studies have been drawn to the attention of the parties, who did not wish to comment on them.

72 A study of young girls who identified themselves as sexually active (by attending adolescent ante-natal and post-natal services, termination services and youth sexual help clinics) revealed that in that category the median age of sexual initiation (which seems to have been defined in the study as sexual intercourse) was 14 years, with a range from 11 to 17 years. Those girls were asked about their experiences. Among younger girls in particular, some had sex, although they did not particularly want to, because their partners wished to do so - comments included, "I just did it to keep him happy". Being intoxicated, and peer pressure, were other reasons commonly advanced by girls who had sex when they were not sure that they wanted to do so. By contrast, others delayed intercourse until they were comfortable with their partner and with their own "readiness" for the experience, and they were less likely to regret the experience. It was said that "personal control" emerged as a dominant theme in the way in which the participants evaluated their experiences (Skinner SR, et al "Perceptions and Experiences of First Sexual Intercourse in Australian Adolescent Females" Journal of Adolescent Health 43 (2008) 593 - 599).

73 Similarly, a study of year 10 and year 12 students showed that in 2008, of year 10 students (that is, those generally in the age range 14 to 15) who had had sexual intercourse at any time, a little under a third had, on at least one occasion, had sexual intercourse when they did not wish to do so; again, common reasons were that they were too drunk, or "too high", or that their partners wished them to (Smith A, Agius P, Dyson S, Mitchell A, Pitts M "Secondary Students and Sexual Health 2002" Summary of Findings from the 3rd National Survey of Australian Secondary Students, HIV/AIDS and Sexual Health, Australian Research Centre in Sex, Health and Society (2002)). It would seem to follow, however, that two-thirds of those who were sexually active had never experienced an occasion when they had sexual intercourse and they did not want to, and it seems unlikely that most of those who reported ever having unwanted sex were always, or usually, in that position. More than 25% of year 10 students in 2008 had had sexual intercourse.

74 Just over one-third of year 10 students had engaged in oral sex which, of course, constitutes sexual penetration for the purpose of s 321(2) of the Code. When one looks at the conduct the subject of subs (3) - (5), of s 321, more than 50% had engaged in "sexual touching" - that is, assuming their partners usually would have known their age (an assumption borne out by other survey responses) over 50% had been the victim of an offence which carries potentially a very heavy penalty. However, it is most unlikely that the legislature ever imagined that it could eliminate such behaviour. It is also most unlikely, in my view, that a very significant proportion of those year 10 students suffered any serious harm as a result of their activity, although no doubt some experienced regrets.

75 Of course, not all of the sexual partners of those young people would have been adults. The survey suggests that most sexual partners of the young women involved would have been their own age or up to 17 years of age (a little over 70% of both groups) with the ages of others being older or unknown. The age of the sexual partner would seem to be unlikely, one would think, to affect significantly the harm, or lack of it, likely to follow from a sexual experience.

76 It follows, in my view, not only from the legislative structure, the pre-existing legal context and the Parliamentary Debates, but also from what can be derived from materials objectively analysing the actual experiences of young people, that, while sexual experiences containing an element of "abuse" may be very harmful and should receive a sentence of significant severity, not all sexual contact is experienced as abusive or harmful. There are young people who consider, sometimes (although not always) correctly, that they are "ready" to engage in sexual conduct with a particular partner, and either to initiate sexual contact or to give an informed and voluntary consent to such contact, notwithstanding that they are under 16. In those circumstances, the gravamen of the criminality of the offending partner lies in disregard of the law, rather than in the particular circumstances of the case. There may be substantial variations in what is the appropriate punishment, depending on the circumstances.

Ground 1 - The culpability of the respondent

77 That brings me finally to the circumstances of this case. The aggravating factors appear to me to be these. First, Dianne was under the age of 13 when the offending commenced. The legislature has clearly indicated its view that it is unlikely that a person of that age will be able to give meaningful consent to sexual contact and, even if she does, it is, nevertheless, the case that in having intercourse with her, the respondent was deliberately engaging in conduct which exposed him potentially to a very heavy penalty. Those matters must be given appropriate weight. Further, the respondent repeated his conduct over a number of months, on a number of occasions. Given that there was a relationship of boyfriend and girlfriend between the two, that is perhaps not surprising. However, it is accepted that he knew that what he was doing was unlawful, and he had the opportunity to reflect upon how he could put an end to that sexual contact, which he knew to be unlawful.

78 On the other hand, not only did the respondent genuinely care for Dianne, but she plainly regarded herself as his equal and as being in a position to give a meaningful consent to sexual contact with him. It is clear that she not only consented, but that she initiated some of the sexual contact between them. Although it is said that he has "cognitive distortions", it is clear that the respondent accepts that what he did was unlawful and that he has not attempted to blame her in any way for what occurred. He is a young man of good character who acted as he did when he was lonely, isolated and vulnerable for the reasons set out in the pre-sentence reports.

79 In my view, the respondent was adequately punished by the imposition of the sentence of imprisonment. It was not necessary for him to serve it immediately. For those reasons, in my view, ground 1 does not succeed.

80 This ground, so far as I can see, alleges an error of fact. The factual conclusion which is alleged to be in error is that the respondent had "significant psychological problems and ... psychological needs". The psychological and psychiatric reports set out a number of factors in the respondent's background which apparently caused him to be somewhat isolated, depressed, and lonely. Both the reports and the references pointed clearly to his immaturity. The learned sentencing judge was not in error in describing these matters as psychological problems and needs.

81 Further, so far as the effect of mental or psychological problems falling short of insanity is concerned, the relevant principles have been enunciated in this court on a number of occasions, including Lauritsen v The Queen [2000] WASCA 203; (2000) 22 WAR 442; and Thompson v The Queen [2005] WASCA 223; (2005) 157 A Crim R 385. They have also been discussed in the Victorian case of R v Verdins [2007] VSCA 102; (2007) 16 VR 269, which contains a useful survey of decisions from

a number of Australian jurisdictions. In Verdins, the court accepted that the principles identified in R v Tsiaras [1996] VicRp 26; [1996] 1 VR 398, and applied in a number of Australian jurisdictions since that date, continue to apply.

82 Verdins is useful in this context, however, because it makes very clear what has, in my view, been previously understood in this State. That is, that the principles enunciated are not confined to "serious psychiatric illness", but are applicable in any case where the offender is shown to have been suffering at the time of the offence, or is suffering at the time of sentencing, from a mental disorder, abnormality or impairment of mental function, whether or not the condition can be properly labelled a serious mental illness (at [5]).

83 Her Honour was entitled to take those psychological issues into account. I would therefore not grant leave in relation to ground 2.

84 BUSS JA: On 10 August 2009, the respondent was convicted, on his pleas of guilty under the fast-track system, in the District Court before Wager DCJ of:

(a) six counts of sexually penetrating a child under the age of 13 years, contrary to s 320(2) of the Criminal Code (WA);

(b) six counts of indecently dealing with a child under the age of 13 years, contrary to s 320(4) of the Code;

(c) three counts of sexually penetrating a child between the age of 13 and 16 years, contrary to s 321(2) and s 321(7) of the Code; and

(d) two counts of indecently dealing with a child between the age of 13 and 16 years, contrary to s 321(4) and s 321(8) of the Code.

85 On 10 August 2009, the sentencing judge sentenced the respondent to a net effective head sentence of 3 years' imprisonment, but her Honour ordered that the term be suspended for 2 years, subject to conditions. The conditions were that the respondent attend sex offender treatment programmes as directed or, alternatively, psychological counselling as directed and that he comply with the supervision offered by his supervising officer.

86 The individual sentences were structured as follows:

(a) on each of the counts of sexual penetration (being counts 2, 4, 6, 8, 10, 12, 14, 16 and 17): 3 years' imprisonment; and

(b) on each of the counts of indecent dealing (being counts 1, 3, 5, 7, 9, 11, 13 and 15): 12 months' imprisonment.

87 All of the sentences were ordered to be served concurrently.

88 The State appealed against the sentencing decision. It contended that the terms of imprisonment should not have been suspended. The individual sentences and the order that they be served concurrently were not challenged.

89 At the conclusion of the hearing on 14 December 2009, a majority of the court (Owen & Wheeler JJA) dismissed the appeal. I dissented. I would have allowed the State's appeal, set aside the sentencing judge's decision and re-sentenced the respondent according to law. When the majority dismissed the appeal, we said that reasons for decision would be published later. These are my reasons.

90 On 31 August 2009, the State filed its appeal notice.

91 On 25 September 2009, Wheeler JA ordered that the application for leave to appeal be referred to the hearing of the appeal. Her Honour also granted the State's application for an urgent appeal order.

Section 41(4)(b) of the Criminal Appeals Act 2004 (WA)

92 Section 41(4)(b) of the Criminal Appeals Act 2004 (WA) applies to the State's appeal. The introduction of this provision has abrogated the common law principles that were once applicable to State or Crown appeals against sentence. See The State of Western Australia v Atherton [2009] WASCA 148 [142] - [160] (Buss JA, Miller JA agreeing). See also The State of Western Australia v Cunningham [2008] WASCA 240 [21] - [22] (Miller JA, Steytler P & Buss JA agreeing); The State of Western Australia v Bennett [2009] WASCA 93 [67] - [68] (Miller JA, Owen & Buss JJA agreeing); The State of Western Australia v Johnson [2009] WASCA 224 [29] (Buss JA, Owen & Wheeler JJA agreeing).

93 At the material time, the maximum penalties for the offences were these:

Indecently dealing with a child under the age of 13 years contrary to s 320(4) of the Criminal Code

Sexually penetrating a child under the age of 13 years contrary to s 320(2) of the Criminal Code

Indecently dealing with a child aged between 13 and 16 years contrary to s 321(4) and s 321(8) of the Criminal Code

Sexually penetrating a child aged between 13 and 16 years contrary to s 321(2) and s 321(7) of the Criminal Code

Indecently dealing with a child aged between 13 and 16 years contrary to s 321(4) and s 321(8) of the Criminal Code

Sexually penetrating a child aged between 13 and 16 years contrary to s 321(2) and s 321(7) of the Criminal Code

The facts and circumstances of the offending: background

94 The respondent was born on 25 August 1988. He was aged 20 years when the offences were committed and at the time of sentencing.

95 The complainant (DJ) was born on 11 December 1995. She was aged 12 years when six of the counts of sexual penetration and six of the counts of indecent dealing were committed. She was aged 13 years when three of the counts of sexual penetration and two of the counts of indecent dealing were committed.

96 Eight of the nine counts of sexual penetration involved penile penetration of the vagina and the other count involved digital penetration of the vagina. All counts of indecent dealing involved the respondent fondling DJ's breast.

97 At all material times, DJ was a schoolgirl in a country town in Western Australia. The respondent met her about eight years before the commission of the offences. DJ was a friend of the respondent's younger sister. The two girls were the same age and attended the same school.

98 In the first half of 2008, the respondent and DJ began spending time together and, gradually, an emotional relationship developed between them. In November or December 2008, when the respondent was aged 20 years and DJ was aged 12 years, the respondent and DJ engaged in sexual activity. This progressed from the respondent fondling DJ's breasts to penile penetration of her vagina. The sexual activity continued for about three months until DJ's parents became aware of it. At all material times, the respondent was aware of DJ's age. Indeed, in December 2008 he bought her a present for her 13th birthday.

The facts and circumstances of counts 1 - 12

99 Counts 1 and 2 alleged that on a date unknown between 1 November 2008 and 10 December 2008 an incident of sexual penetration occurred in a bedroom at the home of the respondent's father, where the respondent was living. The respondent and DJ spent time together before DJ consensually moved to the respondent's bedroom. The respondent and DJ undressed themselves and, while lying in a state of undress on the bed, the respondent fondled DJ's breast. The respondent then lay on top of DJ and placed his penis inside her vagina. He had sexual intercourse with her for a period of time. He wore a condom.

100 The remaining incidents of indecent dealing and subsequent sexual penetration that occurred whilst DJ was under the age of 13, and which constitute counts 3 - 12, occurred in substantially similar circumstances. The respondent in each instance invited DJ to his residence. Counts 3 - 10 were committed at the home of the respondent's father, and counts 11 and 12 occurred at a house to which the respondent had moved to reside with a friend. In each instance, the respondent and DJ watched television and talked before moving to the respondent's bedroom. They undressed themselves and, while lying in a state of undress on the bed, the respondent fondled DJ's breast. He then placed his penis inside DJ's vagina and had sexual intercourse with her for a period of time. He wore a condom.

The facts and circumstances of counts 13 and 14

101 Counts 13 and 14 alleged that sometime in early January 2009 the respondent invited DJ to his residence. They spent time together before DJ consensually moved to the respondent's bedroom. The respondent and DJ undressed themselves and, while lying in a state of undress on the bed, the respondent fondled DJ's breast. The respondent then lay on top of DJ and placed his penis inside her vagina. He had sexual intercourse with her for a period of time until he ejaculated into a condom.

The facts and circumstances of counts 15 - 17

102 Counts 15 - 17 alleged that on a date unknown between 1 January 2009 and 1 February 2009 an incident of sexual penetration occurred in the respondent's bedroom at his home. The respondent again invited DJ to his residence. They watched television and talked for some time before DJ consensually moved to the respondent's bedroom. The respondent and DJ undressed themselves and the respondent fondled DJ's breast while they lay naked on the bed. He digitally penetrated DJ's vagina for about 10 minutes. The respondent then inserted his penis into DJ's vagina and had sexual intercourse with her until he ejaculated into a condom. At the completion of the sexual intercourse, DJ removed the condom from the respondent's penis.

The facts and circumstances of the cessation of the sexual activity

103 In early February 2009, DJ's parents became aware of the nature of the relationship between the respondent and their daughter. A complaint was made to the police. The respondent was interviewed and made admissions to the effect that he had had sexual intercourse with, and had indecently dealt with, DJ on at least eight occasions. He was arrested and charged.

104 The reports before the sentencing judge comprised a pre-sentence report, a psychological report from a psychologist, Ms Daniela Barbuzza, and a psychiatric report from a consultant psychiatrist, Dr Sam Febbo.

105 The author of the pre-sentence report said the respondent tended to justify his sexual relationship with DJ by asserting that she was 'mature for her age', friends had commented that she 'looked like she was at least 18 [years old]', and he loved her and believed she loved him. His actions were a result of 'the joy of wanting to be there for some one' and believing that these feelings were reciprocated.

106 The respondent was born in Perth, but while he was growing up his family relocated several times between Perth and a country town. His father was an alcoholic and often violent towards his mother. As a result, the respondent tended not to reveal his emotions. Also, most of his time at home was devoted either to reading or to his school work. By these means, he sought to isolate himself from the conflict within the home. The respondent's parents separated during his mid-teens as a result of his father's violence.

107 After his parents separated, the respondent struggled with his emotions upon ascertaining that his father was likely to die of an alcohol-related illness within 12 months unless he altered his lifestyle. The respondent felt abandoned by his father's decision not to alter his lifestyle. The respondent's inability to deal with these emotions coincided with the development of his relationship with DJ, with whom he felt able to communicate about any issue.

108 The respondent is single and has no children. He informed the author of the report that before commencing his relationship with DJ, he had had two significant intimate relationships with females close to his own age. He said, however, that these previous relationships were 'based on lust', and he had not been 'in love' until he became involved with DJ.

109 An issue of significant concern for the author of the pre-sentence report was the respondent's perception that he was still in a relationship with DJ. He said that during the subsistence of the sexual activity, both of them were aware that the nature of their relationship would be discovered. DJ had told him that, no matter what happened, she would wait for him until she was 16 years of age, when they could lawfully resume their relationship. The respondent acknowledged to the author of the report that he felt jealous and angry about the possibility of DJ commencing relationships with boys of her own age.

110 The respondent reported that he had above average academic ability, particularly in mathematics, although he chose to leave school after completing only Year 10. He then undertook an apprenticeship as a butcher. Currently, he is unemployed.

111 After being charged with the offences in question, the respondent suffered from symptoms of stress and depression. He sought assistance from a counsellor who informed the author of the report that, in his view, the respondent was difficult to engage, struggled to communicate and appeared immature for his age.

112 The respondent has a hip-bone disease which reduces his capacity for strenuous physical activity. This disability is not, however, an impediment to the performance of ordinary or non-strenuous physical activity.

113 According to the respondent, he consumes alcohol to a limited extent. He does not use illicit substances.

114 The respondent appeared to the author of the report to be socially isolated. He struggles to develop meaningful friendships with people who have common interests.

115 The author of the report provided the following summary:

[The respondent] is a 20 year old man who presented as a socially isolated youth who has learned to suppress emotions as a way to cope with his exposure to domestic violence as a child. Given this coping mechanism he presented as being emotionally immature and having difficulty communicating. He has been convicted of serious sexual offences and revealed cognitive distortions during the interview which require specific treatment.

The options and obligations of the various community based sentencing options were explained in detail to [the respondent]. He advised he was willing to reside in the Perth metropolitan area in order to participate in a group based sex-offender treatment program, participate in supervision and community work requirements, abide by the requirements of the Australian National Child Offender Registry (ANCOR) and abide by any conditions imposed by the VMU. Notwithstanding the serious nature of [the respondent's] offending, his willingness to abide by the above-mentioned conditions and lack of a prior criminal history make him a suitable candidate for a community based disposition. His likely vulnerability in a custodial setting due to his youth, offending behaviour and communication style are also considerations.

116 Ms Barbuzza noted that the respondent was generally well composed throughout her interview with him. However, he became distressed when discussing his father's blasé attitude towards his ill health. The respondent had taken this personally and felt that his father was quite happy to desert him. The respondent reacted to this feeling of rejection by vacating his father's home, where he had been residing, and establishing a home with a friend.

117 The respondent said he was able to confide in DJ. He felt comfortable talking with her about his problems. He described her as 'mature' for her age and said that she was more mature than any other females he knew. The emotional closeness between them developed into sexual activity, even though he knew this behaviour was illegal. He persisted with it because he thought she was 'the one'. He was not having sex with her 'for kicks'.

118 Like the author of the pre-sentence report, Ms Barbuzza referred to the history of domestic violence while the respondent was growing up with his family. His mother informed Ms Barbuzza that the respondent's father had been very violent towards her. According to the mother, the respondent often witnessed this violence and did not know how to respond to it. She felt guilty about having 'abandoned' the respondent by relocating to Perth with her other children in order to escape from her ex-husband. The respondent described his father as being 'stone cold' in his feelings. According to the respondent, he did not develop a father-son relationship with his father until after his parents had separated. The respondent became distressed when discussing his relationship with his father and said they had barely had any contact since he had moved out of his father's home.

119 Psychometric testing administered by Ms Barbuzza produced results consistent with individuals who are distant and asocial. In particular, the results were consistent with people who

often withdraw from others in order to protect themselves from being hurt; may allow others to take advantage of them; and may have an interpersonally detached orientation where they may prefer social isolation with minimal personal attachments and obligations.

120 Ms Barbuzza also administered the Static 99 to assess the respondent's risk of sexual reoffending. His Static 99 score placed him in the medium-low or medium-high risk category. This suggests that the respondent has a one in 10 chance of sexual reoffending within a five-year period.

121 Although the respondent admitted his offending behaviour, he sought to justify it by asserting that DJ was 'mature', that she instigated the sexual contact, that she was 'the one', and that DJ had not been harmed by the offending. Ms Barbuzza was concerned that the respondent continued to believe that his offending behaviour had not had an adverse impact on DJ and did not believe that he abused his position in relation to her, even though he acknowledged she may have been 'infatuated' with him. According to Ms Barbuzza, these cognitive distortions must be addressed within treatment.

[The respondent] reported to have viewed the victim as being the same age as him because of her maturity level. [The respondent] appears however to be somewhat immature in his own thinking, which may have contributed to his choice of victim. In fact, his mother stated that [the respondent] associated primarily with his younger brother and his younger brother's friends who are all five years younger than him. Furthermore, [the respondent] appeared to maintain a facade that he was coping around his friends and family rather than admitting that he was having a difficult time. He does not discuss his problems with others rather has a tendency to 'keep things bottled up' and given the difficult period in his life around the time of the offending, it seems that he turned to the victim for comfort as she was the only person he felt comfortable with at the time. [The respondent] appeared to have then blurred the boundaries between him and the victim and allowed the relationship to become sexual, despite his previous decision not to. He appears to have been emotionally vulnerable at the time as he had just discovered that his father was terminally ill, and he had left his job. [The respondent's] poor coping and emotional management skills have continued to be evident since the offending in that he has threatened suicide and has punched a hole in a wall, both in the presence of his mother. This appeared to have been the result of an accumulation of unexpressed stress that he expressed in inappropriate ways. [The respondent] needs to develop appropriate coping and emotional management skills.

[The respondent] appears to have harboured unexpressed feelings since his childhood as he has never felt comfortable discussing his feelings, which he feels that he has modelled on his father's behaviour, as his father has never expressed his emotions and has never been demonstrative of affection throughout his life. [The respondent] has some insight into this however [he] needs to develop this further. It also seems essential for him to explore the feelings and issues that he has with his father and to address these within treatment. He appears to have felt neglected by his father throughout his life and had always felt close to his mother however his mother relocated to Perth just before the offending which led to him feeling rejected and abandoned by her, whom he felt closest to. In the absence of his mother, he appears to have turned to the victim when feeling distraught just prior to the offending.

123 Dr Febbo recorded the respondent's statement that he had never been attracted to young girls and believed that DJ had a maturity level that exceeded her age of 12 years.

124 Dr Febbo found no evidence of any formal thought disorder. There were no abnormal perceptions or abnormal beliefs. The respondent's affect was reactive and at times he was distressed.

125 In Dr Febbo's opinion, the respondent's history in relation to the offences in question suggests significant cognitive distortions and inappropriate justification for his behaviour. He appeared to minimise the inappropriate nature of his actions and did not accept that his actions would have harmed DJ, but rather he felt he had assisted her.

126 The respondent does not suffer from a major psychiatric disorder. He has impaired self esteem and self confidence. This has subsisted for a number of years. There was no real evidence, however, of any significant personality disorder.

127 Dr Febbo suggested that the respondent be assessed with a view towards a referral to a sex offender treatment programme. No specific psychiatric treatment was required.

128 In summary, the respondent's presentation suggested the existence of significant risk factors. These related to the cognitive distortions, and the justification and minimisation of the sexual offending. On the other hand, a number of risk factors commonly existing in sex offenders, for example, a history of sexual abuse, personality pathology, alcohol and substance abuse, and sexual deviancy, were absent. On the whole, there was, in Dr Febbo's view, the potential for 'a positive outcome' if the respondent's treatment needs were met.

129 The sentencing judge summarised the material facts and circumstances of the offending. Her Honour considered the respondent's antecedents. She also reviewed in detail the pre-sentence, psychological and psychiatric reports.

130 Her Honour noted that she had read the transcript of the visually recorded interview by the police with DJ. It was apparent to her Honour that DJ 'reciprocated and indeed initiated' the sexual relationship. She chose to spend a significant period of time with the respondent. Her Honour accepted that DJ's words and actions indicated to the respondent that she felt love for him. But her Honour said that even if DJ 'looked sexually mature', she was a young child. Her Honour stated that the law has made it clear that children of that age need to be protected and, in some circumstances, they need to be protected from themselves.

131 The trial judge summarised DJ's victim impact statement, as follows:

[S]he has required medication, she has had counselling and she has been through a lot of pain and she is concerned about grades at school and her family falling apart. These really are all the natural consequences that follow from this sort of matter coming to light. It's a lot of pressure for her at an age when she shouldn't be thinking about adult things at all (ts 17).

The victim impact statement was not available to this court, but her Honour's summary of it was not challenged.

132 Her Honour decided that a term of imprisonment was the only appropriate sentencing option because of the serious nature of the offences. The only live issues, in her view, were how the term of imprisonment should be structured and, ultimately, whether that term should be suspended or not (ts 21).

133 The sentencing judge said that the respondent had significant psychological problems and, when the offences were committed, he was 'very much in need' of psychological support, which was not provided (ts 22). Her Honour expressed the view that if appropriate psychological support had been available, the respondent may not have committed the offences. She said:

[I]t's by the barest of margins that I'm of the view that I can suspend the term of imprisonment that I'm to impose.

You have psychological needs. You had those needs at the time when you committed the offences. You were immature. You had cognitive distortions; you are not a person with cognitive impairment. So for all of those reasons I will suspend the term. I consider that it is an unusual if not an exceptional case (ts 22).

134 Her Honour then imposed the sentences I have mentioned.

135 The grounds of appeal, without the supporting particulars, read:

1. The learned sentencing Judge erred in law by suspending the total term of 3 years' imprisonment, which resulted in a sentence that was so inadequate as to manifest error.
2. The learned sentencing Judge erred in law in making findings of fact about the respondent's psychological state for which there was no evidentiary foundation, and in placing significant weight upon the findings in considering the suspension of the total term of 3 years' imprisonment.

Appeal against sentence: general principles of appellate review

136 An appellate court may intervene in a sentencing appeal if a material error of fact or law is apparent in the sentencing judge's reasons. Also, an appellate court may intervene if error may be inferred on the ground that the result is unreasonable or unjust; that is, the sentence imposed is manifestly excessive, manifestly inadequate or infringes the totality principle. An appellate court may not, however, substitute its own opinion for that of the sentencing judge merely because the appellate court would have exercised the sentencing discretion in a manner different from the sentencing judge. The High Court has emphasised that there is no single correct sentence, and that sentencing judges are to be allowed as much flexibility in sentencing as is consonant with consistency of approach and as accords with the applicable statutory regime. See Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665 [15]; Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357 [27].

Appeal against sentence: the nature of manifest inadequacy

137 A ground of appeal which alleges that a sentence is manifestly inadequate asserts the existence of an implicit error. It does not assert a specific error. See Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321, where Gleeson CJ and Hayne J observed:

Manifest inadequacy of sentence, like manifest excess, is a conclusion. A sentence is, or is not, unreasonable or plainly unjust; inadequacy or excess is, or is not, plainly apparent. It is a conclusion which does not depend upon attribution of identified specific error in the reasoning of the sentencing judge and which frequently does not admit of amplification except by stating the respect in which the sentence is inadequate or excessive [6].

And see Carroll v The Queen [2009] HCA 13; (2009) 83 ALJR 579 [7] - [8] (Gummow, Hayne, Crennan, Kiefel & Bell JJ).

138 It is necessary, in determining whether a sentence is manifestly inadequate, to examine it from the perspective of the maximum sentence prescribed by law for the relevant offence, the standards of sentencing customarily observed with respect to that offence, the place which the criminal conduct occupies on the scale of seriousness of offences of the kind in question, and the personal circumstances of the offender. See Chan v The Queen (1989) 38 A Crim R 337, 342 (Malcolm CJ); Vagh v The State of Western Australia [2007] WASCA 17 [47] (Roberts-Smith JA).

139 By s 6(4) of the Sentencing Act 1995 (WA):

A court must not impose a sentence of imprisonment on an offender unless it decides that -

(a) the seriousness of the offence is such that only imprisonment can be justified; or

(b) the protection of the community requires it.

140 A court must not impose a term of immediate imprisonment unless satisfied, having regard to the sentencing principles set out in Div 1 of Pt 2 of the Sentencing Act, relevantly, that it is not appropriate to impose suspended imprisonment. See s 39(2) and (3) of the Act. That is, a court is not permitted to impose a term of imprisonment to be served immediately unless that is the only appropriate sentencing option. See Skipworth v The State of Western Australia [2008] WASCA 64 [11], [13] - [14] (McLure JA), [58] (Buss JA).

141 Section 76(1) of the Sentencing Act provides:

A court that sentences an offender to a term of imprisonment, or to an aggregate of terms of imprisonment, of 60 months or less may order that the whole of the term or terms be suspended for a period set by the court; but not more than 24 months.

By s 76(2), suspended imprisonment is not to be imposed unless imprisonment for a term or terms equal to that suspended would, if it were not possible to suspend imprisonment, be appropriate in all the circumstances.

142 Parliament expressly contemplated that a suspended term of imprisonment may be imposed in a case where a serious offence has been committed. This is apparent from the terms of s 76(1), which permit suspension where a court sentences an offender to a term, or aggregate terms, of imprisonment of up to 5 years.

143 In Dinsdale, Kirby J made the following observations in relation to s 76(1) and (2) of the Sentencing Act:

Moreover, the scheme of the legislation, and the two steps which s 76(1) and (2) of the Act requires, suggest, as a matter of construction, that the same considerations that are relevant for the imposition of the term of imprisonment must be revisited in determining whether to suspend that term (Thomas, Principles of Sentencing, 2nd ed (1979), pp 244-245; R v P [1992] FCA 626; (1992) 39 FCR 276 at 285). This means that it is necessary to look again at all the matters relevant to the circumstances of the offence as well as those personal to the offender. It would be surprising if the legislation were to warrant, at the second step, concentration of attention only on matters relevant to the offender, such as issues of the offender's rehabilitation and the court's mercy (cf R v Shueard (1972) 4 SASR 36 at 43; R v Prindable (1979) 23 ALR 665 at 669; R v Davey [1980] FCA 134; (1980) 2 A Crim R 254 at 259-260). On the contrary, the structure and language of s 76(2) of the Act support the view that what is required by a proposal that a term of imprisonment should be suspended is reconsideration of 'all the circumstances'. This necessitates the attribution of 'double weight' to all of the factors relevant both to the offence and to the offender - whether aggravating or mitigating - which may influence the decision whether to suspend the term of imprisonment ( at 402, per Ipp J) [85].

144 The factors to be considered when deciding whether or not to suspend a sentence of imprisonment were referred to by Steytler J in R v Liddington (1997) 18 WAR 394. His Honour said:

Amongst the factors which should be considered, in addition to the prospect of rehabilitation taken together with the personal deterrence provided by the threat of activation of the suspended sentence, are the perceived seriousness and intrinsic character of the particular offence (see Wood v Samuels (1974) 8 SASR 465; R v Kruger (1977) 17 SASR 214 at 221; R v Causby (at 62-67); R v Kirk (1984) 6 Crim App R (S) 231; GP, per Malcolm CJ (at 220), Murray J (at 234) and Steytler J (at 243)), whether there is any element of persistence (see Wood v Samuels (at 468); R v Kruger (at 221)); general deterrence (Causby (at 62)); factors personal to the offender including mitigating circumstances which, while no doubt already taken into account in arriving at the decision to impose imprisonment of a particular term, may have to be considered again as regards the question whether or not to suspend the period of imprisonment so arrived at (see R v P [1992] FCA 626; (1992) 39 FCR 276 at 285; R v Locke (1973) 6 SASR 298 at 302; Jarrett v The Queen (1992) 58 SASR 457 at 459; ; at 592; cf (at 72 - 73)); the need to demonstrate the condemnation of the community for offences of that kind ( (at 62); , per Malcolm CJ (at 220)); and reasons militating in favour of an exercise of mercy ( at 212-213; (at 285); , per Murray J (at 234)).

145 Counsel for the respondent asserted that the legislation which creates the offences in question is directed to sexual activity involving some element of abuse. It was submitted that the greater the abuse, as evidenced by such matters as disparity in age, the use of force, a pattern of grooming behaviour or the betrayal of trust, then the greater the offender's culpability. It was said that, in this regard, the only factor of relevance to the respondent was the disparity between his chronological age (as distinct from his emotional age) and that of DJ. Counsel emphasised that there was no grooming behaviour or betrayal of trust. Further, DJ instigated the sexual interaction.

146 It was submitted on behalf of the respondent that on occasions it will be appropriate to suspend terms of imprisonment for the sexual penetration of or indecent dealing with a child under the age of 16 years. Counsel referred to Riggall v The State of Western Australia [2008] WASCA 69; The State of Western Australia v ABM [2004] WASCA 90; Simon v The State of Western Australia [2009] WASCA 10; CJ v The State of Western Australia [2009] WASCA 42. It was contended that the present case is comparable to those cases.

147 According to counsel for the respondent, the sentencing judge properly exercised her discretion by reference to the following factors:

(a) The respondent's psychological needs and emotional immaturity.

(c) The prospects of the respondent's rehabilitation if his psychological needs are met.

(d) The effect an immediate term of imprisonment would have on the respondent.

(e) The absence of a number of risk factors generally seen in sexual offenders, including a history of sexual abuse, personality pathology, alcohol and substance abuse, and sexual deviancy.

(f) The respondent's interpersonal communication difficulties.

(g) DJ having initiated the sexual interaction and the respondent not having engaged in any grooming behaviour.

148 Counsel for the respondent submitted that the sentencing judge had proper regard to the pre-sentence, psychological and psychiatric reports. Her Honour did not make any material errors of fact about the respondent's psychological state. She correctly took into account his psychological difficulties in determining the kind of sentence to be imposed and the conditions on which the term of imprisonment should be suspended. The respondent's psychological problems were highly relevant to the circumstances of the offending and to his rehabilitation.

The relevant customary sentencing standards

149 It has been observed, frequently and accurately, in this court that there is no 'tariff' for sexual offences. The sentence to be imposed in a particular case depends on its individual facts and circumstances, after having regard to the maximum available penalty. It is important, however, in deciding whether a particular sentence is manifestly inadequate (or, indeed, manifestly excessive), to appreciate what sentences are customarily imposed in cases involving similar offending. Otherwise, as Steytler P (McLure JA agreeing) pointed out in The State of Western Australia v Akizuki [2008] WASCA 267, there is a risk that sentencing will become idiosyncratic and arbitrary [3].

150 Recently, in Simon, Steytler P (McLure & Miller JJA agreeing) reviewed comprehensively comparable sentencing decisions in relation to offenders convicted of sexually penetrating a child between the age of 13 and 16 years, contrary to s 321(2) of the Code. His Honour noted that it has often been said that the purpose of s 321 is not only to protect children from sexual predators, but also to protect them from themselves [20]. See, for example, R v Avery [2002] WASCA 136 [8]; Germain v The State of Western Australia [2004] WASCA 293 [31]; Poulton v The State of Western Australia [2008] WASCA 97 [5]; The State of Western Australia v Lee [2008] WASCA 150 [11].

151 As Wheeler JA (Owen & Miller JJA agreeing) observed in Deering v The State of Western Australia [2007] WASCA 212:

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 [17] - [18].

See also Riggall, where Wheeler JA (Buss & Miller JJA agreeing) said that even where a person aged between 13 and 16 years appears to wish to engage in sexual activity, there is a duty cast upon others to refrain from encouraging or acting upon that wish. Further, the more mature the other person, the greater the degree of self control required of him or her [21].

152 In Simon, the appellant was convicted, on his plea of guilty, of one count of sexually penetrating a child between the age of 13 and 16 years, contrary to s 321(2) of the Code. He was sentenced to a term of 14 months' imprisonment, suspended for 12 months. His application for leave to appeal against this sentence was dismissed. Steytler P noted [22] - [25]:

It has been said that it is only in rare and exceptional circumstances that a non-custodial sentence should be imposed for an offence of sexual penetration of a child between the ages of 13 and 16: see, for example, R v Sweetlove (Unreported, WASCA, 23 September 1996, Library No 960555), 8 (Malcolm CJ, Pidgeon & Murray JJ agreeing); Kakai (7, 8) (Malcolm CJ, Ipp & Anderson JJ agreeing); Germain [17] (McKechnie J, Murray & Simmonds JJ agreeing).

Of course, s 321(2) of the Code covers a very wide range of sexual activity and not all of it will justify a custodial sentence. At one end of the spectrum there might be a case concerning a mature 15-year-old complainant who freely consents to, or invites, a single act of penetration by an offender who is only marginally older. It has often been said that consent is not an element of the offence because of the view taken by the legislature that a child is not in a position to give meaningful consent by reason of immaturity, inexperience and, in some cases, because of the disparity in power that exists between an adult and a child: Marris v The Queen [2003] WASCA 171 [12] (Wheeler J). However, proven absence of consent would seriously aggravate the offending and the culpability of the offender: Poulton [3] (McLure JA). So, too, would abuse of a position or situation that enables the offender to influence, persuade, pressure, force, manipulate or otherwise take advantage of a child for the purpose of facilitating the commission of the offence: Poulton [4] (McLure JA); Lee [10] (McLure JA).

In Dempsey v The Queen (Unreported, WASCA, 9 February 1996, Library No 960059), Murray J listed a number of considerations (which were said not to be exhaustive) that would be relevant when sentencing an offender under s 321(7) of the Code. These were (pages 6 and 7):

1. The nature of the conduct in question, the degree of perversion or deviance demonstrated.
2. The relative ages of the offender and the victim.
3. Whether the offender was in a position of trust or authority with respect to the victim, thus better enabling the commission of the offence.
4. Whether there was, apart from such position of trust or authority, any element of coercive or forceful behaviour on the part of the offender.
5. The circumstances of the victim and the degree to which that person was not only taken advantage of, but his or her corruption was contributed to by the commission of the offence.
6. Whether the offence was repeated and if so over what period or periods of time so as to enable the court to consider whether it was of an isolated character or displayed recidivism on the part of the offender.
7. The degree of remorse displayed and whether any such contrition has been effectively followed up by determined efforts to achieve the offender's rehabilitation.
8. The youth of the offender.
9. The extent to which the victim's co-operation in the commission of the offences was secured by friendship or by the offer of some reward.
10. The actual impact of the commission of the offence upon the child established by a victim impact statement or otherwise.
11. Whether the offender has a prior relevant criminal history.
12. The prevalence of such offences in the community at the time and the degree to which particular circumstances indicate a heightened need to seek to achieve the protection of the community and particularly of young persons from the commission of such offences, whether with or without their consent.

What was said by Murray J has since been applied on a number of occasions: see, for example, Avery [9]; R v Hunt [2002] WASCA 324 [7], [17]; Marris [11].

153 Steytler P then reviewed the sentences that have customarily been imposed by appellate courts with respect to offending of the kind in question. He concluded that although there is, without doubt, no 'tariff', it is unusual to find a non-custodial disposition [26]. The cases examined by his Honour comprised Kakai v The Queen (Unreported, WASCA, Library No 990082, 23 February 1999); Avery; R v Hunt [2002] WASCA 324; Marris v The Queen [2003] WASCA 171; ABM; Germain; Deering; Miles v The State of Western Australia [2007] WASCA 258; Riggall; Poulton; Lee; Van Doorn v The State of Western Australia [2008] WASCA 177. I have considered each of these cases, but it is useful and convenient to reproduce Steytler P's review of them:

In Kakai, the offender was convicted on one count of sexually penetrating a 13-year-old child. He pleaded guilty to the offence. He was 18 years old at the time. The complainant and a friend went to the offender's home to attend a party that he was holding. He had met her earlier that day and invited her to the party. After the party had broken up the offender, the complainant and others went to a nearby home unit. There, the offender and the complainant engaged in sexual intercourse. The offender believed that the complainant was 15 years old.

When questioned by police, the offender readily admitted what he had done. He had a minor record in the Children's Court. This did not encompass any sexual offending. He was sentenced to a term of 2 1/2 years' imprisonment. On appeal, this was reduced to a term of 18 months' imprisonment (12 months' imprisonment after allowing for the operation of the transitional provisions enacted by the Sentencing Legislation Amendment and Repeal Act 2003 (WA)). Malcolm CJ (with whom Ipp & Anderson JJ concurred) said that it was 'a notorious fact that there is a considerable disparity in terms of maturity and experience between a 13-year-old female and an 18-year-old male'.

In Avery, the 20-year-old offender pleaded guilty to 16 charges of sexual offences, contrary to s 321 of the Code, against a 13-year-old complainant. The offences were committed on three separate occasions. They comprised 10 counts of indecent dealing, four of digital penetration, one of cunnilingus and one of penile penetration. The respondent and the complainant had met on an internet chat line. There was some evidence of 'grooming' behaviour by the respondent. The nature of the offending had escalated over a two-week period. The offender had no prior convictions and was of good character. He was sentenced, for each offence of indecent dealing, to a term of 1 year's imprisonment. For each offence of sexual penetration he was sentenced to a term of 2 years' imprisonment. All sentences were ordered to be served concurrently, giving rise to a total sentence of 2 years' imprisonment. The State appealed. The Court of Appeal saw no need to interfere with the individual sentences imposed. However, some of the offences were ordered to be served cumulatively, resulting in a total term of 4 years' imprisonment.

154 The salient facts of Simon were these. The offence was committed in Kununurra. The complainant was the offender's next-door neighbour. Her sister was married to the offender's brother. The complainant was 14 years old. The offender was aged either 18 or 19 years. The offence occurred when the complainant visited the offender's house. She and the offender talked. A little later, the offender asked whether she wanted to have sex. She said that she did. They went to a bedroom and a single act of sexual intercourse occurred. The offender wore a condom. It was common ground that the complainant was a willing sexual partner and had previously had consensual sexual intercourse with others. Steytler P said:

In the present case there are strong factors in mitigation. The appellant was young (either 18 or 19) and was only 4 or 5 years older than the complainant (who he believed to have been 15). He was immature for his age. There was no element of coercion, or even persuasion, and no breach of trust. The offence was isolated. The complainant, already sexually experienced, was a willing participant. The appellant, who had a disadvantaged background that had led to a very limited formal education, did not know that what he had done was illegal. He knew that it was wrong, but only because it would incur the disapproval of his and the complainant's families because of the close relationship between the two families. His antecedents were good. He pleaded guilty to the offences.

While these are telling factors, in my opinion they are not sufficient to have made it appropriate to impose any sentence other than one of imprisonment. As I have said, young people are intended to be protected, not only from sexual predators (I would not describe the appellant in that way), but also from themselves. This complainant was only 14 years old. The appellant believed that she was a year older than that but, even then, he should have appreciated that his conduct was inappropriate because of her age, even if he did not know that it was illegal. While the age gap was not as large as it is in many cases, it was not insignificant. As I have said, there was a difference of some 4 or 5 years. Even allowing for his immaturity, there is a significant difference between a 14-year-old and an 18-year-old.

As the sentencing judge remarked, deterrence is a very significant factor. This is reinforced by the fact that, as she said, the offence was one of a number of similar offences that she had been required to deal with in that location. Having regard for the relevant principles as they have been enunciated by the courts, and taking into account the standards of sentencing customarily observed, I am not persuaded that the sentencing judge erred in imposing a sentence of suspended imprisonment [43] - [45].

155 The reference by Steytler P in Simon to 'non-custodial dispositions' was to sentences other than terms of immediate imprisonment and suspended terms of imprisonment. That is, a 'non-custodial disposition' does not include a suspended term of imprisonment.

157 In R v Sweetlove (Unreported, WASCA, Library No 960555, 23 September 1996), the offender was convicted, on his plea of guilty, of three counts, namely, sexual penetration of the complainant, a child between the ages of 13 and 16 years, contrary to s 321(2) of the Code; indecently dealing with the complainant, a child between the ages of 13 and 16 years, contrary to s 321(4); and encouraging the complainant, a child between the ages of 13 and 16 years, to do an indecent act, contrary to s 321(5). The complainant was a 14-year-old boy. The offender was aged 33 years. The offender was known to the complainant's mother. At the offender's request, the mother agreed to the complainant spending the night at the offender's home in Beckenham in the company of another man, aged 48 years, who was known to the offender and the complainant's mother. The three counts occurred on the night in question. Count 1 involved the offender stroking the complainant's leg, unzipping the complainant's jeans and placing the complainant's penis in his mouth for a period of time. After the commission of count 1, the offender led the complainant to his bedroom and assisted the boy to remove his clothes. Both of them got into bed naked. The offender then fondled the complainant's genitals. This induced the complainant to fondle the offender's genitals. These incidents constituted counts 2 and 3. The sentencing judge imposed fines. The Court of Criminal Appeal allowed the Crown's appeal against sentence. The court set aside the fines, ordered their repayment to the offender, and in lieu thereof imposed a sentence of 12 months' immediate imprisonment on count 1, sentences of 6 months' immediate imprisonment in respect of each of counts 2 and 3 to be served cumulatively upon each other, but concurrently with the sentence on count 1. A parole eligibility order was made. Malcolm CJ (Pidgeon & Murray JJ agreeing) said:

It is accepted that a court is required by s17A(4) of the Criminal Code not to impose a sentence of imprisonment on an offender unless it is of the opinion that the seriousness of the offence is such that only imprisonment can be justified, or the protection of the community requires it. It is in this sense that imprisonment is a sentence of last resort: cf James (1985) 14 A Crim R 364. It may also be accepted that no tariff has emerged, or is likely to emerge, in cases of this nature. The circumstances of their commission cover an enormous range. In a case where there is an isolated incident due to a momentary lapse, it may be that a non-custodial disposition would be appropriate: Dick (1994) 75 A Crim R 303.

Having regard to the maximum penalty of imprisonment for 14 years for the offence of sexual penetration provided for in s321(2), it is clear that Parliament has regarded that offence as very serious and that such substantial penalties reflect the need for personal and general deterrence so as to protect children from the commission of sexual acts upon them. Consequently, consent is not an element of the offences. The fact that the boy, while knowing that what he was involved in was wrong, may even have somewhat enjoyed the experience, is simply a non-aggravating factor. Of more relevance was the age disparity between the complainant and the respondent and the fact that because the complainant's mother had agreed to the boy staying over at the respondent's house, the respondent was in a position of trust which he abused.

While it may be acknowledged that there is no tariff for sexual offences, there are clear indications in the authorities that only in rare and exceptional circumstances should a non-custodial sentence be imposed for an offence of sexual penetration of a child under s321(2) (7 - 8).

158 In CJ, the offender, a 35-year-old woman, was convicted, on her plea of guilty, of four counts of sexual offending against a boy. Each count involved penile penetration of the offender's vagina. Count 1 occurred when the boy was aged 14 years and 11 months, count 2 at or about the time he was 15, count 3 shortly after he turned 15 and count 4 when he was about 15 years and 6 months. When the offending occurred, the offender was a primary school teacher and had taught the complainant some years earlier. Her occupation and prior contact with the complainant in her capacity as a teacher were not relevant in that she had not been charged with having committed the offences while the complainant was under her care, supervision or authority (being a circumstance of aggravation). The offender's contact with the complainant arose primarily as a result of the complainant's friendship with the offender's son. This court allowed the offender's appeal against sentences of imprisonment. The net effective head sentence imposed at first instance was 2 years and 3 months' immediate imprisonment. This court substituted sentences of 18 months' imprisonment on each count, to be served concurrently, and to be suspended for a period of 12 months. McLure JA (Buss JA agreeing) said:

In this case the offences were not initiated by the appellant. The complainant was in control of when and if sexual contact occurred. He acknowledged to police in the video record of interview that he was 'just in it for the sex pretty much'. Notwithstanding the appellant's age, she was vulnerable to the sexual interest shown by the complainant. That vulnerability stemmed from a dysfunctional background, low self-esteem, a history of passivity and acquiescence, a life of social isolation and lack of any significant emotional or physical intimacy with an adult over an extended period. Into that mix is the appellant's clinical depression.

As a result of the offences, the appellant lost her job as a teacher and is now estranged from her son who she raised alone as a single mother. After ceasing work as a teacher she obtained employment to support herself financially. She worked as a checkout operator at a supermarket where she was mocked and ridiculed by associates of the complainant. The appellant has engaged in intensive counselling with the object of identifying and addressing the underlying causes of her offending behaviour.

I was satisfied that in this unusual combination of circumstances, a term of immediate imprisonment was not the only appropriate sentencing option and that the seriousness of the offence was appropriately reflected in a suspended term of imprisonment [16] - [18].

159 The cases I have cited in connection with customary sentencing standards concerned sexual penetration of, or indecent dealing with, a child between the age of 13 and 16 years. Similar sentencing considerations apply where an offender has sexually penetrated or indecently dealt with a child under the age of 13 years but, in general, the offending will be more egregious as the age of the child decreases. However, despite the differences in the maximum available penalties, where all other facts and circumstances are equal, there will not be any material difference in the seriousness of the offending between a complainant who is a little under the age of 13 years and a complainant who is a little over that age.

160 The purpose of s 321 of the Code is not confined to protecting children from sexual predators. Its purpose extends to the 'protection of children from themselves'; that is, preventing children from engaging in sexual behaviour with others when they are not sufficiently mature to deal with the social and emotional consequences of such behaviour. These observations apply with even greater force to s 320 in relation to, relevantly, pubescent children under the age of 13 years.

161 The respondent's offending was not aggravated by the use of force, intimidation or pressure, by a pattern of grooming behaviour or by a betrayal of trust. Also, no persuasion or inducement was used in relation to DJ. She voluntarily entered into a sexual relationship with the respondent. Indeed, DJ said in her interview with the police that she 'asked him for it'. She had had some previous consensual sexual experience. I would not describe the respondent as a sexual predator. The offences were therefore not within the worst category of the kind of offending in question.

162 Although the respondent initially denied, when questioned by the police, having been sexually involved with DJ, he did promptly admit the offences and pleaded guilty under the fast-track system.

163 The respondent is undoubtedly immature for his age. He requires psychotherapy for the purpose of addressing the significant cognitive distortions and interpersonal issues referred to by the psychologist, Ms Barbuzza, and the psychiatrist, Dr Febbo, in their reports.

164 The respondent had reasonably good personal antecedents. A number of written references before the sentencing judge spoke well of him.

165 However, various facts and circumstances in the present case reveal a number of objectively serious features, namely:

(a) At all material times, the respondent was aware of DJ's age.

(b) The respondent had sexual intercourse and other sexual interaction with DJ on eight separate occasions. He was convicted on 17 counts.

(c) The offending occurred over a period of about three months and came to an end only when the sexual relationship was discovered by DJ's parents.

(d) DJ was only 12 years of age (although nearly 13) when the offending commenced.

(e) There was a significant age difference of about eight years between the respondent and DJ.

(f) At all material times, the respondent knew that his sexual relationship with DJ was unlawful.

(g) The victim impact statement, as recorded in the sentencing judge's unchallenged remarks, indicates that DJ has suffered emotional and psychological trauma. This trauma arose in the aftermath of her sexual involvement with the respondent being discovered, and not while the relationship was subsisting. This is not unusual with offending of this kind.

(h) The respondent's consultations with Ms Barbuzza and Dr Febbo disclosed a serious lack of insight into the seriousness of his conduct, a stance of minimising the inappropriate nature of his actions, and a failure to accept that his actions and the disclosure of their sexual relationship would have harmed DJ.

166 Although the respondent was immature for his age, he should have exercised the self control necessary to avoid having sexual contact with a 12 or 13-year-old girl.

167 As Dr Febbo noted, although several risk factors that commonly exist in sex offenders (for example, a history of sexual abuse, personality pathology, alcohol and substance abuse, and sexual deviancy) were absent, there were some significant risk factors associated with the respondent and his behaviour; in particular, his cognitive distortions and his justification and minimisation of his offending. These factors bear on the risk of the respondent relevantly reoffending. The Static 99 risk assessment made by Ms Barbuzza placed him in the 'Medium-Low or Medium-High risk category'. This suggested that he had a one in 10 chance of sexual reoffending within a five-year period. I consider that, on the whole, the evidence from Dr Febbo and Ms Barbuzza suggests that the respondent presented a low to medium risk of relevant reoffending.

168 As I have mentioned, there is not a 'tariff' for sexual offences. I accept that there may be rare and exceptional cases where a sentence of immediate imprisonment is not the only appropriate sentencing disposition when a young adult sexually penetrates a child of 12 years on numerous occasions over an extended period. But I am firmly of the view that the present case is not one of them.

169 In my opinion, the respondent's overall criminality, as measured by the maximum available penalties, the objectively serious features and the existence of a low to medium risk of relevant reoffending, decisively outweighed the matters favourable to him. His offending behaviour was more serious than the behaviour involved in cases of sexual penetration of, or indecent dealing with, a child under the age of 13 years or between the age of 13 and 16 years where non-custodial sentences or suspended terms of imprisonment have been imposed. In particular, the facts and circumstances of the present case are more serious than those of the offending in each of Riggall, ABM, Simon and CJ. Also, ABM was a State appeal in which the traditional common law principles relating to State or Crown appeals against sentence were applicable.

170 I am satisfied that having regard to the maximum available penalties, the customary standards of sentencing, the degree of seriousness of the respondent's criminal behaviour and his personal circumstances, that the sentencing judge's decision to suspend the term of imprisonment resulted in a sentence that was so inadequate as to manifest error. The facts and circumstances of the respondent's offending were so serious that it was not open to her Honour to suspend the terms of imprisonment, notwithstanding the matters favourable to him.

172 In Orchard v The Queen [2004] WASCA 23, there was evidence from a psychiatrist that an offender, because of his ingestion of the drug, Interferon, was less able to exercise logical reasoning processes and to make rational judgments and choices. The Court of Criminal Appeal said [18]:

That necessarily reduced the applicant's moral culpability, albeit not, of course, his legal responsibility. The law accepts that, where a mental disorder has contributed to the commission of an offence, the moral culpability of the offender will be lessened (and it may be appropriate to attach less significance to either or both of general and personal deterrence) and that that should, ordinarily at least, be reflected in the penalty imposed: R v Tsiaras [1996] VicRp 26; [1996] 1 VR 398 at 400; Lauritsen v R [2000] WASCA 203; (2000) 22 WAR 442 at 456 - 459; and R v Payne [2002] WASCA 186; (2002) 131 A Crim R 432 at [40], [43] - [48] and [67].

173 The critical feature which must be established before a psychiatric condition can mitigate punishment is a causal connection between the condition, on the one hand, and the commission of the offence, on the other, which reduces the offender's moral culpability in respect of the offence. See Paparone v The Queen [2000] WASCA 127; (2000) 112 A Crim R 190 [49] - [53] (Murray J); LAT v The State of Western Australia [2005] WASCA 237 [87] - [90] (Roberts-Smith JA, McLure JA agreeing). Also see Kiesey v The State of Western Australia [2005] WASCA 229 [56] (Roberts-Smith JA, Steytler P & Pullin JA agreeing); Thorn v The State of Western Australia [2008] WASCA 36 [38] - [39] (Buss JA, Wheeler & Miller JJA agreeing).

174 In the present case, the respondent had no cognitive impairment. He suffered from cognitive distortions, but he knew his offending behaviour was illegal and therefore that it was wrong.

175 In my opinion, the sentencing judge did not make any error of principle in making her findings of fact about the respondent's psychological state. Her Honour found, relevantly, that:

(a) the respondent had significant psychological problems;

(b) when the offences were committed, the respondent was 'very much in need' of psychological support, which was not provided; and

(c) the respondent did not have any cognitive impairment, although he did suffer from cognitive distortions.

These findings were open to her Honour on the material before her; in particular, the pre-sentence, psychological and psychiatric reports.

176 That part of ground 2 which alleges that the sentencing judge erred in law 'in placing significant weight' upon her findings of fact about the respondent's psychological state is dependent upon that part of ground 2 which alleges that her Honour erred in law in making those findings of fact because there was no evidentiary foundation for them.

177 I am satisfied that the sentencing judge did not make any error of principle in making the findings of fact in question. There was an adequate evidentiary foundation for them. The respondent's psychological problems, including his cognitive distortions, were relevant to the risk of reoffending and the prospects of his rehabilitation. Ground 2 is unmeritorious.

Wheeler JA's reasons: 'adolescent sexual experiences: the reality'

178 As I have mentioned, the appeal was heard and, by a majority, dismissed on 14 December 2009, with reasons for decision to be published later.

179 By letter dated 16 February 2010, a member of this court referred the parties to the reports of the studies on adolescent sexual behaviour which Wheeler JA discusses in her reasons. The letter said that the studies 'may shed light on community attitudes to the offences created by sections 320 and 321 of the Criminal Code and on the mischief at which [they are] aimed'. The parties were given an opportunity to make comment on the studies. No comment was received. This is not surprising, perhaps, in view of the court, by a majority, having already dismissed the appeal.

180 It is sufficient, for present purposes, to note that this court (with a coram of three judges) was bound to determine the State's appeal in accordance with the applicable sentencing standards established by this court and the Court of Criminal Appeal in previous comparable cases. Nothing in the studies permits this court to dilute or depart from those standards.

181 Apart from the observation I have just made, it is undesirable, in the absence of any submissions, to express any view as to whether the studies contain anything which may properly be said to shed light on community attitudes to the offences in question, or on the mischief at which they are aimed.

182 For these reasons, I would grant leave to appeal on ground 1 and refuse leave to appeal on ground 2, and I would have allowed the appeal. I would have set aside the sentencing judge's sentencing decision and resentenced the respondent to terms of immediate imprisonment. As I have mentioned, my opinion is a dissenting view and it is unnecessary, therefore, to formulate and state the individual sentences and the net effective head sentence that I would have imposed. Also, it is unnecessary to refer to a report dated 4 December 2009 from Mr Bill Christman, a clinical psychologist, in relation to his treatment of the respondent since the original sentencing decision was made. This court admitted Mr Christman's report in evidence on the appeal. However, its contents were irrelevant unless the appeal was allowed and it became necessary for this court to resentence the respondent.