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.
Hunt was another State appeal. The offender had pleaded guilty, at the first opportunity, to six counts of sexual penetration of a 14-year-old girl. He was then 28 years old. The offender and the complainant had formed a relationship after the complainant's family had moved into premises next door to the house in which the offender lived. The two of them had sexual intercourse on at least six occasions. The relationship lasted four months. The complainant's mother was aware of it and 'acquiesced' in it. The offender was sentenced to a total term of 3 years' imprisonment (2 years if the transitional provisions had been applicable). The appeal was dismissed.
In Marris, the offender was convicted on two counts of indecent dealing and four counts of sexual penetration of a 13-year-old girl. He pleaded guilty to all counts. Each of the offences was committed during a single episode. The offender was then 20 years old. He was remorseful and presented a low risk of re-offending. He had no prior record and had very favourable references. There were no elements of perversion or deviance, nor any premeditation or calculation. The sexual conduct was voluntary. There was no need, even, for persuasion of the complainant. The offender was sentenced to a total of 3 years' imprisonment. The appeal succeeded and the balance of the terms imposed by the sentencing judge were suspended for a period of 18 months.
The State of Western Australia v ABM [2004] WASCA 90 involved a State appeal against the sentences imposed on an offender in respect of three counts of sexual penetration of a child aged between 13 and 16 years. The complainant was aged between 14 and 15 years at the time of the offences. She attended a school for people with intellectual disabilities. The respondent, who was 9 years older than the complainant, was in a de facto relationship with the complainant's cousin. That relationship had produced three young children. The respondent had good antecedents. The complainant had been a consenting participant to the sexual activity and had invited the respondent into her bed. The offender pleaded guilty to one of the counts of sexual penetration (penile penetration) but was convicted by a jury on the other two counts (digital penetration and cunnilingus). He was sentenced, in respect of the offence to which he pleaded guilty, to a term of 18 months' imprisonment, suspended for 18 months. In respect of the other two offences he was sentenced to an 18-month intensive supervision order with programme and supervision requirements.
In the appeal, Wheeler J accepted that, ordinarily, the offences committed by the respondent called for terms of imprisonment to be served immediately. She said that this was particularly true of the offence of penile penetration to which the offender had pleaded guilty. However, she declined to interfere. Malcolm CJ agreed with her. Miller J, in dissent, would have imposed a total term of 2 years' imprisonment, after allowing for the operation of the transitional provisions.
In Germain, the offender was convicted, after pleading guilty on the fast-track, on three counts of sexual penetration of a 12-year-old complainant (one of cunnilingus, one of fellatio and one of digital penetration) and three counts of indecent dealing with the complainant. The appellant, who was 27 years old, met the complainant at a party. Both were intoxicated. Later that night, each of the offences was committed. The complainant was a willing participant. She told the offender that she was 14 years old. The offender had no prior convictions and was spoken highly of by referees. It was accepted that he had no paedophilic orientation. He was sentenced to a total term of 2 years and 8 months' imprisonment, after allowing for the operation of the transitional provisions. His appeal was dismissed.
In Deering, the offender pleaded guilty on the fast-track to one count of digital penetration and four counts of penile penetration of a 13-year-old child. The appellant was then aged 23. The offender had been invited by the complainant's mother to live in her home. Within one or two months of moving in, the offender commenced a sexual relationship with the complainant. This lasted approximately a year. Some six months into the relationship, the complainant's mother learned of it and asked the appellant to leave the house. He did so, but continued the relationship for a further six months. When the complainant's mother learned that the relationship had continued, she contacted the police. The offender made prompt admissions, without which the prosecution case might not have been easy. The offender had no prior convictions for sexual offences, although he had been convicted of offences of dishonesty. He had positive references. He was sentenced to a term of 18 months' imprisonment in respect of the digital penetration (count 1) and to terms of 3 years and 6 months' imprisonment in respect of each of the acts of penile penetration (counts 2 to 5). The sentences were structured so as to give rise to a total sentence of 5 years' imprisonment. The offender's appeal succeeded. A term of 8 months' imprisonment was imposed on count 1 and terms of 1 year and 10 months' imprisonment were imposed in respect of each of counts 2 to 5. The offences were structured so as to give rise to a total term of 2 years and 6 months' imprisonment.
In Miles v The State of Western Australia [2007] WASCA 258, the offender pleaded guilty to two counts of sexual penetration of a 14-year-old girl. The two had gone out together. After consuming alcohol the offender took the complainant to his house. There, he performed cunnilingus on her and then had sexual intercourse with her. He was 22 years old at the time. He had no prior record and expressed remorse for his offending. He was sentenced to a total term of 21 months' imprisonment. His application for leave to appeal was refused.
In Riggall, the 22-year-old offender formed a sexual relationship with the 14-year-old complainant, resulting in a number of offences being committed by the offender. However, the complainant had lied about his age, leading the offender to believe (reasonably, in all of the circumstances) that the complainant was 19 years old. Moreover, the evidence suggested that the complainant had been the instigator of the conduct. When the offender discovered the complainant's true age, he immediately put an end to the sexual aspects of the relationship. He co-operated fully with police, pleaded guilty to each offence charged and was remorseful. He was sentenced to a community-based order. On appeal, this was set aside and the court ordered that there be a spent conviction order and imposed no penalty. Wheeler JA (with whom Buss and Miller JJA agreed) said that it was 'difficult to imagine these offences being committed in circumstances less worthy of blame' [50]. She also described the case as 'exceptional' and 'rare' [79].
In Poulton, the offender was convicted, after pleading guilty, on three counts of sexual penetration of a 14-year-old girl, one count of indecent dealing with her (fondling her breasts) and one count of indecently recording the child by recording his indecent dealing with her on a mobile telephone. The offender was 23 years old at the time. He believed that the complainant was 15 years old. There was no evidence that the offender positively exploited any influence or vulnerability for the purpose of committing the offences. Rather, he was presented by the complainant with opportunities which he availed himself of. He ceased any sexual contact with the complainant when he learned that she was 14 years old and not 15, as he had believed. He had a prior record, but it did not encompass any convictions for offences of a sexual nature. He had not previously been sentenced to a term of imprisonment. He was sentenced to terms of 2 years' imprisonment on each count of penile penetration and to terms of 9 months' imprisonment on each of the other counts. The sentences were structured so as to give rise to a total term of 4 years' imprisonment. The appeal succeeded on totality grounds. An aggregate sentence of 2 years and 9 months' imprisonment was substituted for the aggregate of 4 years' imprisonment.
In Lee, the offender was convicted on two counts of having a sexual relationship with a child under the age of 16 years, contrary to s 321A of the Code. Each count related to a separate complainant. The offence against the first complainant occurred shortly prior to her 16th birthday. The sexual contact involved seven instances of penile penetration and four instances of digital penetration of the complainant's vagina. The relationship with the second complainant started on the day before her 15th birthday. The sexual contact consisted of four acts of penile penetration of the complainant's vagina. At the time of both offences the respondent was aged 25. The respondent had understood from the first complainant that she was 16 years old when the sexual relationship commenced. However, that is not a defence to an offence under s 321A unless the offender was not more than three years older than the child: s 321A(7). The uncontradicted evidence from the respondent was that each complainant displayed a strong interest and attraction towards him, which he reciprocated. The sentencing judge accepted that the second complainant's mother requested that he engage in a sexual relationship with her daughter. The respondent pleaded guilty to both counts. He had no relevant record and his antecedents were favourable. He was sentenced to a term of 18 months' imprisonment on each count, to be served cumulatively.
The State appealed. By a majority (Steytler P & McLure JA), the appeal was dismissed. The majority found that there was no reasonable basis for a finding that the first term of 18 months' imprisonment was manifestly inadequate. The second term was found to be low, but not so low as to fall outside the range of a sound sentencing discretion. Miller JA would have increased each term to one of 2 years' imprisonment and the aggregate sentence to one of 4 years' imprisonment.
In Van Doorn v The State of Western Australia [2008] WASCA 177, the appellant was convicted, after pleading guilty, on three counts of indecently dealing with a 13-year-old child, one count of attempting to sexually penetrate the child, two of sexually penetrating the child and one of using electronic communications to expose her to indecent material. The offender was then aged 29. The offender and the complainant were neighbours. The two had become attracted to each other. They engaged in consensual sexual activity on a number of occasions. Two of the offences of indecent dealing were described as trivial, at best, having involved only brief kisses on the complainant's mouth. A third count of indecent dealing involved the appellant grabbing the complainant on the buttock with his hand. Two of the counts of sexual penetration had taken place on the same occasion. The appellant's penis had fallen out of the complainant's vagina and he had re-inserted it. The charge of using electronic communication to expose the child to indecent material had involved the offender sending a photograph of his penis to the complainant. The appellant was a person of prior good character who had believed that he was in love with the complainant. He was sentenced to a total term of 4 years' imprisonment. After a successful appeal, this was reduced to a total term of 2 years and 6 months' imprisonment [27] - [41].