Alalyani v The State of Western Australia
[2018] WASCA 44
•10 APRIL 2018
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: ALALYANI -v- THE STATE OF WESTERN AUSTRALIA [2018] WASCA 44
CORAM: MAZZA JA
BEECH JA
ALLANSON J
HEARD: 16 MARCH 2018
DELIVERED : 10 APRIL 2018
FILE NO/S: CACR 155 of 2017
BETWEEN: SALEH ABDULLAH ALALYANI
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram: EATON DCJ
File Number : IND 855 of 2016
Catchwords:
Criminal law - Appeal against sentence - Sexual penetration without consent - Sentence of 4 years' immediate imprisonment - Whether sentence manifestly excessive - Turns on own facts
Legislation:
Criminal Code 1913 (WA), s 325
Sentencing Act 1995 (WA), pt 2 div 1
Result:
Leave to appeal granted
Appeal dismissed
Category: D
Representation:
Counsel:
| Appellant | : | Mr S K Shepherd |
| Respondent | : | Ms A L Forrester SC |
Solicitors:
| Appellant | : | Forbes Kirby |
| Respondent | : | Director of Public Prosecutions (WA) |
Case(s) referred to in judgment(s):
Barbaro v The Queen [2014] HCA 2; (2014) 253 CLR 58
FST v State of Western Australia [2011] WASCA 220
McIntyre v The State of Western Australia [2016] WASCA 150
Sartori v The State of Western Australia [2014] WASCA 98
The State of Western Australia v Akizuki [2008] WASCA 267; (2008) 192 A Crim R 373
The State of Western Australia v Vartolo [2015] WASCA 53
JUDGMENT OF THE COURT:
The appellant was sentenced to imprisonment for 4 years following his conviction after trial on one charge of sexual penetration without consent. The appellant applies for leave to appeal against sentence on the single ground that it is manifestly excessive. The application for leave was referred to the hearing of the appeal.
For the reasons which follow, the sole ground of appeal has not been established. While the application for leave should be granted, the appeal must be dismissed.
The facts and circumstances of the offending
The appellant does not challenge the findings of fact made by the sentencing judge. The facts may be summarised as follows.[1]
[1] The summary is from the sentencing remarks at ts 985 - 989.
At the time of the offence the appellant was living in a shared house in East Victoria Park.
The victim lives in New South Wales, but had flown to Perth for the weekend and was staying with a friend, Mr B. Mr B lived near the appellant.
On Saturday, 17 October 2015, there was a celebratory gathering in the late afternoon or early evening at a bar in Highgate. The appellant's housemates were there with others, including Mr B and the victim. The appellant was working that night. After finishing work he drove to the bar to join the others.
During the evening both Mr B and the victim were spoken to by bar staff for inappropriate or drunken behaviour. The victim left and went to the Burswood Casino for about an hour before returning to Mr B's home.
The group from the bar also made their way to Mr B's home, arriving at about midnight, where they continued drinking and dancing. Some of them smoked cannabis. While they were at Mr B's home, the appellant paid some unwanted attention to the victim, which she rejected.
Mr B and another woman (one of the appellant's housemates) retired to Mr B's bedroom. Shortly after, the victim joined them. The appellant attempted to follow her into the bedroom but she told him not to.
The others, including the appellant, continued to party and drink at the house. After some time, the appellant's housemate left the bedroom to return home. The victim saw her to the door, and then returned to the bedroom where Mr B was sleeping deeply. She went to bed but was unable to sleep. The victim got up and went to the courtyard, where she smoked a cigarette and talked with the appellant. The victim gave the appellant a hug and returned to the bedroom. This time she managed to go to sleep.
The appellant went home, before returning to Mr B's house.
The victim was sleeping beside Mr B. She was awoken by the appellant touching her and then penetrating her from behind. She struggled to extricate herself and saw the appellant standing naked by the bed. She woke Mr B who confronted the appellant.
Soon afterwards, the police were called. The appellant was arrested.
The trial
The appellant was charged on indictment with sexual penetration without consent contrary to s 325 of the Criminal Code 1913 (WA). The offence carries a maximum penalty of imprisonment for 14 years.
The appellant pleaded not guilty and was tried in the District Court. The appellant's defence at trial was that it was not him, but one of his housemates, who committed the offence.
On 23 June 2017, after a five‑day trial, the appellant was convicted. On 28 June 2017, he was sentenced to imprisonment for 4 years. The sentence was backdated to 23 June 2017, and the appellant was declared eligible for parole.
The appellant's personal circumstances
The appellant was 25 at the time of the offence, and 27 at the time of sentencing.
He was born in Saudi Arabia and was initially in Australia on a student visa, then on a bridging visa. The appellant was in casual employment while studying. He is unmarried with no dependents.
The appellant's family are in Saudi Arabia.
The appellant has limited English.
He had no previous convictions.
The appellant is likely to be deported on his release from custody.
Sentencing remarks
The sentencing judge characterised the offending as towards the lower end of seriousness of such cases. In his sentencing remarks, his Honour said:
(1)The appellant was drinking and was intoxicated. He was, 'perhaps … partly befuddled by alcohol and partly the recipient of some misguided messages or misunderstood messages'.[2] His Honour said:[3]
What had happened earlier in the evening, her talk with you and her hug, may all have combined to engender in your mind a perception that she might have been receptive to intimacy with you or sexual contact with you. Your state of mind - your state of intoxication I should say might have impaired your judgment in that regard. Perhaps you thought that you were, in effect, invited to join her in the bedroom.
(2)The offending was not accompanied by physical force or violence, but the appellant took advantage of a sleeping woman. The penetration of the victim was 'opportunistic and brief'. There was no ejaculation.[4]
(3)The appellant had no remorse.[5] His defence that it was his housemate who committed the offence did him no credit.[6]
(4)Because of the appellant's immigration status, personal deterrence is 'practically not applicable'.[7]
(5)The case was unusual and, in its particular circumstances, not a good vehicle for general deterrence.[8]
(6)The appellant's time in prison is likely to be more difficult because he is from the Middle East and has no family in Western Australia.[9]
[2] ts 10.
[3] ts 8.
[4] ts 7.
[5] ts 10.
[6] ts 7.
[7] ts 9.
[8] ts 9 - 10.
[9] ts 9.
The appellant takes issue with none of those comments. The respondent submitted that the comments of the sentencing judge with respect to deterrence were wrong.
The ground of appeal
The appellant appeals on the single ground that the sentence is manifestly excessive having regard to the appellant's antecedents, the criminality involved, and sentences imposed in broadly comparable cases.
The parties' submissions
Both parties submitted that there is no tariff for sexual offences because of the enormous range of conduct and variation in personal circumstances of the offender. The appellant submitted, based on previous decisions of this court, that a sentence of 4 years following trial, for an offence at the low end of the scale of seriousness, is manifestly unjust. The submission was supported by reference to a limited number of decisions where, except for the common factor that the victim was asleep or intoxicated or both, the circumstances were quite different.
The respondent, referring to the same set of authorities, submitted that nothing in the authorities relied on, or the facts and circumstances of the appellant's offending, demonstrates that the sentence is unreasonable or plainly unjust.
The merits of the appeal
A sentencing judge must sentence in accordance with the sentencing principles set out in pt 2 div 1 of the Sentencing Act 1995 (WA). The sentence imposed must be commensurate with the seriousness of the offence.[10] The court determines the seriousness of the offence taking into account the statutory penalty; the circumstances of the commission of the offence, including the vulnerability of any victim of the offence; any aggravating factors; and any mitigating factors.[11]
[10] Sentencing Act s 6(1).
[11] Sentencing Act s 6(2).
Except where a mandatory sentence is prescribed, a sentencing judge exercises a discretionary judgment which is subject to applicable statutory provisions and judge‑made law.[12] The discretion conferred on sentencing judges is of fundamental importance. On appeal, this court may not substitute its opinion as to sentence for that of the sentencing judge merely because it would have exercised the discretion in a different manner.
[12] Barbaro v The Queen [2014] HCA 2; (2014) 253 CLR 58 [25] (French CJ, Hayne, Kiefel, Bell JJ).
The range of sentences customarily imposed for comparable offences is considered for the purpose of ensuring broad consistency in the sentencing of offenders in broadly comparable cases.[13] The ground that the sentence is manifestly excessive asserts implied error, often described as imposing a sentence that falls outside the range of sentences which could have been imposed if proper principles had been applied.[14]
[13] McIntyre v The State of Western Australia [2016] WASCA 150 [11].
[14] Barbaro v The Queen [26].
In our respectful view, in several respects the sentencing judge's comments in sentencing were more favourable to the appellant than the circumstances warranted. In particular, his Honour's comments in regard to 'mixed messages' and to general and specific deterrence were not correct.
First, there was no particular circumstance in the matters referred to by his Honour affecting whether this case was a good vehicle for general deterrence. There was no evidence that the appellant acted as he did because he had received 'mixed messages', and no evidence that he might have perceived the victim would be receptive to sexual contact with him. Still less is there any basis to suggest that the appellant had received any message that the victim would be receptive to sexual contact while she was asleep. The appellant took advantage of the victim while she slept and was vulnerable. That is serious offending that engages the need for general deterrence. It is not relevant that the victim had engaged in consensual sex with another person or persons that night, or that the appellant knew that she had.
Second, the appellant's failure to take responsibility for his offending and his lack of remorse are, as the respondent submits, factors that underscore the need for personal deterrence.[15] That is so whether the appellant remains in Australia or is deported.
[15] The State of Western Australia v Vartolo [2015] WASCA 53.
The appellant relied substantially on the sentence imposed, following a successful appeal, in FST v State of Western Australia.[16] The appellant argued that decision to be most useful because of similarities to the case in hand, including the characterisation of the offending as towards the lower end of the scale of seriousness.
[16] FST v State of Western Australia [2011] WASCA 220.
FST was convicted after trial of one offence of sexual penetration without consent. Buss JA (as his Honour then was) summarised the State's case:[17]
On the evening of 1 December 2009, the complainant, who was aged 28 years, and two other women went to the house of a friend, T, to celebrate the end of their university examinations. The appellant was, at the time, in a relationship with T. He was at the house but did not participate in the celebrations.
During the evening, the complainant became very drunk. She went to bed in a spare room in T's house. During the early hours of 2 December 2009, the appellant entered the spare room and sexually penetrated the complainant's vagina with his penis, without her consent.
…
The State did not allege that the appellant had obtained the complainant's consent by force, threats or intimidation. Rather, its case was that the complainant 'did not give her conscious permission to the [appellant] sexually penetrating her. Indeed when he started she wasn't really conscious at all'.
[17] FST v State of Western Australia [13] - [16].
The defence of FST at trial was that the victim had consented to being sexually penetrated; alternatively, the State was unable to prove to the requisite standard that the appellant did not have an honest and reasonable, but mistaken, belief at the material time that she was consenting.[18]
[18] FST v State of Western Australia [17].
On appeal, the State conceded that if the circumstances of the offending were 'at the low end of the scale of seriousness' then the term of 4 years was manifestly excessive.[19]
[19] FST v State of Western Australia [20].
The Court of Appeal (Buss and Mazza JJA, McLure P dissenting) reduced the sentence from 4 years to 3 years, on the ground that the sentence was manifestly excessive. Buss JA referred to the appellant's generally favourable antecedents, and also to the particular factor that after the commission of the offence, when it was apparent that the complainant was distressed, the appellant provided her with some assistance. He drove the complainant towards her home, although he eventually left her, at her request, at another address.[20]
[20] FST v State of Western Australia [35]
Although there are similarities between FST and the present case, and the present appellant also has favourable antecedents, comparison with one case is of limited assistance. As Steytler P said in The State of Western Australia v Akizuki:[21]
As might have been anticipated, this review of the cases reveals that the circumstances of sexual offending, and of sexual offenders, are almost infinitely variable. That, in turn, means that the sentence imposed in one case can provide only very limited guidance in deciding what sentence should be imposed for a similar offence in another case.
The discretionary character of sentencing means there is no single correct sentence for a given case. Consequently, error in the exercise of the sentencing discretion is not shown merely by pointing to one or two cases in which lesser sentences were imposed for comparable offences committed in comparable circumstances by comparable offenders.[22]
[21] The State of Western Australia v Akizuki [2008] WASCA 267; (2008) 192 A Crim R 373 [68].
[22] Sartori v The State of Western Australia [2014] WASCA 98 [30].
Having regard to the nature of the current offence, and the circumstances in which it was committed, we are not satisfied that the appellant has shown that the sentence of 4 years was unreasonable or unjust. The sentence of 4 years' imprisonment for this offence of penile penetration of a woman while she slept is within an appropriate exercise of the sentencing discretion, having regard to the considerations of both general and specific deterrence, and to the absence of any mitigation for a plea of guilty or remorse.
The sole ground of appeal must fail.
The orders of the court are:
(1)Leave to appeal is granted.
(2)The appeal is dismissed.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
CS
ASSOCIATE TO MAZZA JA10 APRIL 2018
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