ALC v The State of Western Australia
[2022] WASCA 96
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: ALC -v- THE STATE OF WESTERN AUSTRALIA [2022] WASCA 96
CORAM: BUSS P
MAZZA JA
SMITH J
HEARD: 4 MAY 2022
DELIVERED : 3 AUGUST 2022
FILE NO/S: CACR 97 of 2021
BETWEEN: ALC
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : CHILDREN'S COURT OF WESTERN AUSTRALIA
Coram: PRESIDENT QUAIL
File Number : CC PE 2732 - CC PE 2735 of 2020, CC PE 2738 and 2739 of 2020, CC PE 2741 and 2742 of 2020 and CC PE 2744 of 2020
Catchwords:
Criminal law - Appeal against sentence - Appellant a young offender at the time of offending - Appellant convicted of six counts of sexual penetration of a child over the age of 13 years and under the age of 16 years, two counts of cruelty to an animal and one count of criminal damage - Whether total effective sentence of 3 years 6 months' immediate imprisonment infringed the first limb of the totality principle
Legislation:
Animal Welfare Act 2002 (WA), s 19(2)(a)
Community Protection (Offender Reporting) Act 2004 (WA)
Criminal Code (WA), s 321(2), s 444(1)(b)
Sentencing Act 1995 (WA), s 9AA
Young Offenders Act 1994 (WA), s 7, s 46, s 50B, s 118, s 118A, s 120
Result:
Leave to appeal refused
Appeal dismissed
Category: B
Representation:
Counsel:
| Appellant | : | A Sullivan |
| Respondent | : | L M Fox SC |
Solicitors:
| Appellant | : | Legal Aid (WA) |
| Respondent | : | Director of Public Prosecutions (WA) |
Case(s) referred to in decision(s):
Ainsworth v D (a child) (1992) 7 WAR 102
AM (a child) v The Queen (Unreported, WASCA, Library No 960263, 15 May 1996)
Bugmy v The Queen [2013] HCA 37; (2013) 249 CLR 571
DC v The State of Western Australia [2014] WASCA 121; (2014) 242 A Crim R 147
F (a child) v The State of Western Australia [2004] WASCA 193
JSA v The State of Western Australia [2012] WASCA 25; (2012) 42 WAR 473
KWLD v The State of Western Australia [No 4] [2013] WASCA 185
JUDGMENT OF THE COURT:
On 2 July 2021, the appellant was sentenced in the Children's Court by its President, Judge Quail, to a total effective sentence of 3 years 6 months' immediate imprisonment for nine offences, predominantly of a sexual nature, the details of which are summarised below:
| Charge Number | Offence | Sentence |
| 2732/2020 | Sexual penetration of a child over the age of 13 years and under the age of 16 years, contrary to s 321(2) of the Criminal Code (WA) (the Code) (EH) | 12 months' immediate imprisonment (head sentence) |
| 2733/2020 | Sexual penetration of a child over the age of 13 years and under the age of 16 years, contrary to s 321(2) of the Code (JH) | 10 months' immediate imprisonment (cumulative) |
| 2734/2020 | Sexual penetration of a child over the age of 13 years and under the age of 16 years, contrary to s 321(2) of the Code (JH) | 10 months' immediate imprisonment (concurrent) |
| 2735/2020 | Sexual penetration of a child over the age of 13 years and under the age of 16 years, contrary to s 321(2) of the Code (JH) | 3 months' immediate imprisonment (cumulative) |
| 2738/2020 | Sexual penetration of a child over the age of 13 years and under the age of 16 years, contrary to s 321(2) of the Code (KP) | 15 months' immediate imprisonment (cumulative) |
| 2739/2020 | Sexual penetration of a child over the age of 13 years and under the age of 16 years, contrary to s 321(2) of the Code (KP) | 11 months' immediate imprisonment (concurrent) |
| 2741/2020 | Cruelty to an animal, contrary to s 19(2)(a) of the Animal Welfare Act 2002 (WA) | 2 months' immediate imprisonment (cumulative) |
| 2742/2020 | Cruelty to an animal, contrary to s 19(2)(a) of the Animal Welfare Act 2002 (WA) | 2 months' immediate imprisonment (concurrent) |
| 2744/2020 | Criminal damage, contrary to s 444(1)(b) of the Code | 1 month's immediate imprisonment (concurrent) |
| TOTAL | 3 years 6 months' immediate imprisonment To commence 20 June 2021. The appellant was made eligible for parole. |
The appellant's sentencing was governed by the Young Offenders Act 1994 (WA), which sets out the special sentencing principles relating to young offenders. Although the appellant was an adult when he was sentenced, he was, at the time of the offences, under the age of 18 years and thus a person to whom the Young Offenders Act applied.[1]
[1] Young Offenders Act, s 3 and s 4.
The appellant appeals to this court against his sentence. He does not challenge the individual sentences that were imposed. Nor does he contend that sentences of immediate imprisonment were inappropriate. He relies on one ground, which alleges that the total effective sentence of 3 years 6 months' immediate imprisonment infringed the first limb of the totality principle. The question of leave to appeal on this ground was referred to the hearing of the appeal.[2] For the reasons which follow, leave to appeal should be refused and the appeal dismissed.
[2] Order, 1 December 2020, Buss P and Beech JA.
The proceedings in the Children's Court
Of the charges the subject of this appeal, the appellant pleaded guilty to 2733 ‑ 2735 of 2020, 2739 of 2020 and 2741 ‑ 2742 of 2020 and 2744 of 2020. He was convicted of 2732 and 2738 of 2020 after a trial before his Honour.
The facts
There is no dispute as to the facts of the appellant's offending. They may be summarised as follows.
Charge 2732 of 2020
Between 1 September 2018 and 30 October 2019, the appellant, who was either 17 years old or about to turn 17, and the victim, EH, who was 14 or 15 years old, were both at an address in Forrestield that was the home of a mutual acquaintance. The appellant and EH knew each other. Both were in State care and had previously spent time in community group homes. The appellant and EH left the home and went to a nearby primary school. They went to some bushes in the middle of the school playing fields, away from other people. The appellant asked EH what position she wanted to do. EH lay on her back and removed her pants. The appellant removed his pants, lay on top of EH and engaged in sexual intercourse with her, eventually ejaculating. This act of sexual intercourse was consensual. The appellant and EH got dressed and returned to the house. Later, when interviewed by the police, the appellant denied a sexual relationship with EH.
Charges 2733 - 2735 of 2020
The victim in each of these offences was a girl, JH. The appellant and JH were both in State care. They knew each other, having been in the same community group home.
As to 2733 of 2020, in November 2017, the appellant and JH were at a friend's house in Forrestfield. They went to the master bedroom of the house. There, the appellant and JH engaged in an act of consensual sexual intercourse on the waterbed in the bedroom.
As to 2734 of 2020, this offending, which occurred in December 2017, involved essentially the same conduct as had occurred in 2733 of 2020.
As to 2735 of 2020, in 2018, the appellant and JH were together in the appellant's bedroom at a group home. There, they had consensual sexual intercourse on the floor. When they finished, JH hid under the appellant's bed so that she was not discovered by the staff at the group home.
In respect of 2733 and 2734 of 2020, the appellant was 16 years old and JH was aged 14 years. At the time of 2735 of 2020, the appellant was either 16 or 17 years old and JH was 15 years old.
Charges 2738 - 2739 of 2020
The appellant and KP knew each other, having been in a relationship for a few days sometime between May and July 2019. On an occasion in this period, both parties were at a fast‑food restaurant in Thornlie. Together they went into the disabled toilet and started kissing. There, they had consensual sexual intercourse on the toilet floor (2738 of 2020).
On another occasion, the appellant and KP entered a toilet block in a suburban park and started kissing. Both undressed and lay on the toilet floor. There, they engaged in a consensual act of sexual intercourse (2739 of 2020). The appellant and KP then got dressed and walked to a friend's house.
With respect to the offences against EH, JH and KP, at all times, the appellant was aware that the complainants were under the age of 16 years.[3] All of the offences involved consensual sexual acts. At all relevant times, the appellant was a reportable offender under the Community Protection (Offender Reporting) Act 2004 (WA). His Honour found that, in respect of some of the offences, he was subject to a conditional release order made by the Children's Court.
Charges 2741, 2742 and 2744 of 2020
[3] As the respondent points out in its submissions, the statements in the sentencing proceedings about the ages of the appellants and the complainants are inconsistent. The ages of the appellant and the complainants as stated in these reasons are the most favourable to the appellant.
As to 2741 and 2742 of 2020, at around 2.00 am on 27 November 2018, the appellant, in company with others, entered the grounds of the Forresfield Primary School. They located an enclosed area where six chickens were being kept. The appellant used bolt cutters to gain entry into this area. Using a lighter and an aerosol can, the appellant deliberately set one of the chickens on fire. He watched it burn for a period of time before the chicken died. The appellant then picked up a large concrete cinderblock, climbed up on the roof of a nearby building and deliberately threw the cinderblock from the roof onto another chicken, killing it.
The offence of criminal damage the subject of 2744 of 2020 was constituted by the cutting of the wire around the area where the chickens had been kept.
The appellant's personal circumstances
The sentencing judge was provided with pre‑sentence reports dated 20 April 2015 and 24 June 2021, a psychological report dated 20 June 2021 by Tanina Oliveri, a clinical and forensic psychologist, and a psychiatric report dated 7 May 2019 by Dr Marshall Watson, a child and adolescent forensic psychiatrist.
The appellant had what his Honour rightly described as a 'dysfunctional and tragic childhood'.[4] The appellant is an only child. At the time of his birth, the appellant's mother was a teenager and had herself been in State care. When the appellant was 3 years old, his father died. He has had no father figure in his life. From a young age he was exposed to domestic violence and substance abuse. His Honour described the level of violence to which the appellant was exposed as 'extreme'.[5] The appellant also grew up in a very sexualised home environment, as a result of which he became sexualised from a very young age.
[4] Sentencing ts 12.
[5] Sentencing ts 12.
The effects of the appellant's upbringing became evident from a young age. He exhibited traits of hyperactivity, impulsiveness and aggression.
The appellant's mother relinquished his care to the Department of Child Protection and Family Support when he was charged with his first sexual offence at the age of 12 years.
While in care, the appellant lived in multiple placements and had many carers, although he occasionally stayed with his mother. These stays were brief and strained. The appellant has had very limited contact with his mother since the age of 17 years.
As a young offender, the appellant has spent lengthy periods in juvenile detention. He completed the equivalent of year 10 studies while in detention. He has never worked, but it is reported that he has aspirations to work as an electrician. His Honour regarded the appellant as being intelligent enough to complete a trade qualification or undertake further studies.[6]
[6] Sentencing ts 13.
The appellant has a long history of substance abuse. He began drinking alcohol at the age of 9 years, using cannabis at the age of 11 years and amphetamines at the age of 14 years.
As a young offender, the appellant has a long criminal history. In addition to offences of arson, burglary, attempted aggravated robbery, various drug offences, and offences involving dishonesty and theft of property, the appellant has been convicted of a number of sexual offences. In 2015, he was convicted of sexual penetration of a child under the age of 13 years. Then, in 2017, he was convicted of possession of child exploitation material. In 2019, he was convicted of two counts of sexual penetration of a child over the age of 13 years and under the age of 16 years.
Since becoming an adult, the appellant has been convicted of breaching bail, failing to comply with reporting obligations, possession of prohibited drugs and driving a motor vehicle without a driver's licence.
In her psychological report, Ms Oliveri said that the present offences were an indication of the appellant's 'continued problems with sexual urges and desires, sexual gratification, a likely sexual deviance, poor impulse control, a disregard of the law and others, poor judgment, poor consequential thinking, cognitive distortions and concerning personality traits'.[7]
[7] Ms Oliveri's report, page 7.
Ms Oliveri administered to the appellant the Juvenile Sex Offender Assessment Protocol‑II, and observed that the appellant:[8]
… has denied and minimised some of the current offences and he has not accepted full responsibility for his actions. He did not appear internally motivated to make changes, viewing himself as 'set up' for the sexual offences. He lacked understanding of risk factors for further offending and he displayed problematic empathy and remorse. Additionally, there are cognitive distortions evident and his peer relationships are predominantly with antisocial youth.
[8] Ms Oliveri's report, page 8.
The appellant's psychiatric history reveals that, when he was 11 years old, he was diagnosed with ADHD and that he meets the criteria for an attachment disorder. The appellant also has post‑traumatic stress disorder.[9]
[9] Dr Watson's report, page 8.
The sentencing remarks
As the appellant takes no issue with his Honour's sentencing remarks, it is unnecessary to summarise them in detail.
His Honour identified as serious features of the appellant's offending that each of the complainants was, to the appellant's knowledge, vulnerable, and that he took advantage of them.[10] Later in the sentencing remarks, his Honour elaborated, stating:[11]
[Y]ou do portray to others an aura of great confidence in yourself, and that is, I'm sure, what enabled these offences, in the sense that these very vulnerable young girls, younger than you, who you met through care, were attracted to you in the sense that it enabled you to take advantage of them. And whilst they saw you as a confident young fellow who would look after them and be their boyfriend, you, in fact, were doing something completely different. You were only interested in what you could get out of it, which was sex with as many young girls as you could get, and you were extremely callous in how you went about it. … You were manipulative in what you did, and as Ms Oliveri says, there are narcissistic aspects to your personality: a lack of empathy, a lack of insight, a lack of remorse.
[10] Sentencing ts 11.
[11] Sentencing ts 14.
His Honour noted that at the time of the commission of some of the offences, the appellant was subject to a conditional release order in the Children's Court, which he explained as being 'a suspended sentence of detention'.[12] His Honour said that this circumstance made the offending more serious.
[12] Sentencing ts 15.
His Honour described in detail the appellant's personal circumstances, illicit substance use, criminal history and his psychological and psychiatric conditions. He acknowledged the 'horror'[13] of his upbringing. His Honour said that he took into account the appellant's dysfunctional childhood, and said that he applied the Bugmy[14] principles.
[13] Sentencing ts 16.
[14] Bugmy v The Queen [2013] HCA 37; (2013) 249 CLR 571.
His Honour acknowledged the appellant's pleas of guilty. With respect to the offences against JH, his Honour gave a discount of 20% pursuant to s 9AA of the Sentencing Act 2005 (WA) for the pleas of guilty. With respect to the offences against KP (apart from the offence against KP of which the appellant was convicted after trial), his Honour gave a s 9AA discount of 15%. In respect of 2741, 2742 and 2744 of 2020, his Honour said that the appellant would be given 'credit' for his pleas of guilty, but did not specify a discount under s 9AA. It is not contended by the appellant that his Honour's failure to do so constituted, in the facts and circumstances of this case, a material appellable error.
His Honour emphasised the need for community protection. He said that although the appellant was young, he posed 'a substantial danger to young women'[15] unless he underwent change. His Honour said that because of the appellant's background, he was 'not a good example for … general deterrence',[16] and that although personal deterrence was a relevant sentencing factor, it was 'a lesser consideration'.[17]
[15] Sentencing ts 16.
[16] Sentencing ts 16, 2 July 2021.
[17] Sentencing ts 16, 2 July 2021.
In imposing the individual sentences, his Honour said that he had regard to the totality principle. He said that he reduced some of the sentences he imposed for this reason.[18]
[18] See sentencing ts 16 - 17, 2 July 2021.
His Honour acknowledged that the appellant had been in custody since 21 December 2020 for other matters, and that he had been on remand for the offences the subject of this appeal since 20 June 2021.
The appellant's submissions
At the time the appellant filed his written submissions, he was self‑represented. At the hearing of the appeal, the appellant was represented by counsel, Mr Sullivan.
The appellant's primary contention in his written submissions was that the total effective sentence of 3 years 6 months' immediate imprisonment infringed the first limb of the totality principle, having regard to the facts of the offending, the appellant's age and his background. The appellant emphasised his youth and that he was to be sentenced in accordance with the principles of sentencing set out in s 46 of the Young Offenders Act. The only comparable case referred to in his written submissions was KWLD v The State of Western Australia.[19] Mr Sullivan accepted that KWLD provided 'limited assistance',[20] and did not cite any other case as a relevant comparator. He accepted that the present case was 'in a class of its own'.[21]
[19] KWLD v The State of Western Australia[No 4] [2013] WASCA 185.
[20] Appeal ts 15.
[21] Appeal ts 16.
Mr Sullivan submitted that while some accumulation of the individual sentences was appropriate, the sentencing judge's orders for accumulation led to the imposition of a total effective sentence which infringed the first limb of the totality principle.[22] He explained that the crux of the appellant's case in support of the ground of appeal was that in circumstances where each of the complainants factually consented to the sexual acts, and having regard to the appellant's youth, guilty pleas and his deprived background, the total effective sentence infringed the first limb of the totality principle.[23]
The respondent's submissions
[22] Appeal ts 19 - 20.
[23] Appeal ts 16 - 17.
Mr Fox SC, for the respondent, submitted that while the appellant was to be sentenced as a juvenile, he was 16 or 17 years old at the time of the commission of the offences and was, in effect, not at the youngest end of the range of ages of juvenile offenders.[24]
[24] Appeal ts 23.
He submitted that although the complainants factually consented to engaging in sexual activity with the appellant, the appellant deliberately targeted particularly vulnerable young girls and engaged in callous and manipulative behaviour towards them. He asserted, in substance, that this was not a case of a young offender engaging in sexual activity in the context of a loving and sincere relationship with the victim. Rather, the appellant deliberately exploited the victims' vulnerabilities.
Mr Fox SC also submitted that the individual sentences imposed by his Honour were well within an appropriate sentencing range, and that his Honour's orders for cumulacy and concurrency reflected an orthodox and correct application of the totality principle.[25]
[25] Appeal ts 24 - 25.
General appellate sentencing principles
The general principles governing an appeal against sentence which contends that a total effective sentence infringes the totality principle are well established.
This court can only intervene if the appellant demonstrates an express or implied material error. An allegation that a total effective sentence infringes the totality principle is an example of implied error. Implied error arises where the end result is so unreasonable or unjust that the court must conclude that a substantial wrong has occurred. Thus, an appellate court cannot substitute its own opinion for that of the sentencing court merely because the appellate court would have exercised a sentencing discretion differently.
The first limb of the totality principle requires that the total effective sentence imposed on an offender who has committed multiple offences bears a proper relationship to the overall criminality in all of the offences (including those, if any, in respect of which the offender is still serving or is yet to serve a term of imprisonment), viewed in their entirety, having regard to all relevant facts and circumstances, including those referrable to the offender personally and including, for example, the desirability of accommodating any wish to rehabilitate, all relevant sentencing factors and the total effective sentences imposed in comparable cases.
Where there is a challenge on totality grounds, the severity of a sentence imposed on an individual count generally falls to be assessed in light of the sentences imposed in respect of the other counts and its contribution to the total effective sentence. A heavy individual sentence (which is not manifestly excessive) may be softened by an order that it be served concurrently with sentences imposed in relation to the other counts. A relatively light sentence (which was not manifestly inadequate) may, as a practical matter, have increased severity if it is ordered to be served cumulatively. The real question is whether the total effective sentence is unreasonable or plainly unjust.
Sentencing principles relating to young offenders
As we have explained, although the appellant was an adult when he was sentenced, he was, at the time of the offences, under the age of 18 years and, thus, a person to whom the Young Offenders Act applied.
The relevant principles applicable to the sentencing of young offenders were explained by Mazza JA in DC v The State of Western Australia.[26] It is convenient to repeat what we wrote on that occasion.
[26] DC v The State of Western Australia [2014] WASCA 121; (2014) 242 A Crim R 147 [43] - [50].
Two of the main objectives of the Young Offenders Act are to '[embody] the general principles of juvenile justice, for dealing with young persons who have … committed offences', and 'to integrate young persons who have committed offences into the community'.[27]
[27] Young Offenders Act, s 6(b) and 6(e).
The general principles to be observed in performing the functions of the Young Offenders Act are set out in s 7. Relevantly to this case they are:
(a)there should be special provision to ensure the fair treatment of young persons who have, or are alleged to have, committed offences; and
(b)a young person who commits an offence is to be dealt with, either formally or informally, in a way that encourages the young person to accept responsibility for his or her conduct; and
(c)a young person who commits an offence is not to be treated more severely because of the offence than the person would have been treated if an adult; and
(d)the community must be protected from illegal behaviour; and
…
(h)detaining a young person in custody for an offence, whether before or after the person is found to have committed the offence, should only be used as a last resort and, if required, is only to be for as short a time as is necessary; and
…
(j)punishment of a young person for an offence should be designed so as to give the offender an opportunity to develop a sense of social responsibility and otherwise to develop in beneficial and socially acceptable ways; and
…
(l)in dealing with a young person for an offence, the age, maturity, and cultural background of the offender are to be considered.
…
Part 7 of the Young Offenders Act concerns the sentencing of young offenders. Section 46 of the Young Offenders Act relevantly provides:
(1)When dealing with a young person who has been found guilty of an offence, the court, in disposing of the matter, is to apply -
(a)the principles applying generally for disposing of charges of offences, except as those principles are modified by this Act; and
(b)the general principles of juvenile justice.
(2)The court is to consider any information about the offender or the offence that may assist the court to decide how to dispose of the matter, and in particular -
(a)the nature and seriousness of the offence; and
(b)any history of offences previously committed by the offender; and
(c)the cultural background of the offender; and
…
(e)the extent, if any, to which any person was affected as a victim of the offence.
(3)The court is to dispose of the matter in a way that is in proportion to the seriousness of the offence and is consistent with the treatment of other young persons who commit offences.
Section 50B, which applies to young offenders aged 18 years or over at the time of sentence, is relevantly in these terms:
(1)This section applies to and in respect of a young person found guilty of an offence who at the time of being sentenced is 18 years old or older (the offender).
(2)Subject to the Sentencing Act 1995 the court dealing with the offender must dispose of the matter by sentencing the offender under that Act, and that Act and the Sentence Administration Act 2003 apply to and in respect of the sentence imposed.
…
(5)Despite subsection (2), section 46 applies to the court dealing with an offender.
Section 118(1) reads:
118. Offences punishable by imprisonment, options
(1)If the statutory penalty for an offence is or includes imprisonment and the court dealing with the offender decides to impose a custodial sentence, the court may -
(a)impose a term of imprisonment under Part 13 of the Sentencing Act 1995 but may not impose suspended imprisonment under Part 11 of that Act or conditional suspended imprisonment under Part 12 of that Act; or
(b)sentence the offender to a term of detention that is not longer than the term of imprisonment to which the offender would have been liable if the offender were not a young person.
Section 118A(2) provides, in effect, that where a term of imprisonment is ordered and a young person has reached the age of 18 years at the time of sentence, he or she is to serve the sentence in a (adult) prison.
Section 120(1) provides that a court must not impose any custodial sentence 'unless it is satisfied that there is no other appropriate way for it to dispose of the matter'.
The following propositions may be drawn from the case law in relation to young offenders. This list is not intended to be exhaustive.
1.The ultimate aim in sentencing a young offender is the protection of the community by the imposition of a sentence proportionate to the gravity of the offence, having regard to the circumstances of its commission and the circumstances personal to the offender.[28]
2.Youth is normally a powerful mitigating factor and the rehabilitation of the young offender is generally a dominant sentencing consideration.[29]
3.A young offender must not be treated more severely than an adult for the same offence.[30]
4.Deterrence, both personal and general, punishment, retribution and public protection are accommodated in the Young Offenders Act and are relevant to the sentencing of young offenders, although their role will generally be tempered. However, when in a particular case the rehabilitation of an offender appears unlikely, the offending is serious and the character and personal circumstances of the offender justify it, these factors may become significant.[31]
5.Young offenders, even those with good antecedents, may, having regard to the circumstances of the case, be sentenced to detention or imprisonment.[32]
6.The age and maturity of a young offender are relevant factors. Thus, a very young offender who is immature may be dealt with differently from an older child who, while still young, has a greater awareness and responsibility.
[28] AM (a child) v The Queen (Unreported, WASCA, Library No 960263, 15 May 1996).
[29] Ainsworth v D (a child) (1992) 7 WAR 102, 117.
[30] Young Offenders Act, s 7(c) and s 118(1)(b).
[31] JSA v The State of Western Australia [2012] WASCA 25; (2012) 42 WAR 473 [35].
[32] F (a child) v The State of Western Australia [2004] WASCA 193 [14].
Disposition
The maximum penalty for the offence of sexual penetration of a child under the age of 16 and over the age of 13, contrary to s 321(2), read with s 321(7)(c) of the Code, is 7 years' imprisonment. The maximum penalty for the offence of cruelty to an animal, contrary to s 19(2)(a) of the Animal Welfare Act, is 5 years' imprisonment and a fine of $50,000.
With respect to the sexual offending, although there was not a great disparity in the ages of the appellant and the complainants, it is clear that the appellant knowingly took advantage of their vulnerability and exploited each of them purely for his sexual gratification. He did so in a callous and manipulative way. The victims were exposed to the risk of pregnancy. The appellant possesses no insight into his wrongdoing and has no empathy for his victims. In respect of JH and KP, he offended on more than one occasion. He was at all times a reportable offender and, at the time the appellant committed some of the offences, he was on a conditional release order from the Children's Court. The offending can properly be viewed as being sustained and premeditated. In our opinion, the sexual offending engaged in by the appellant, while as a matter of fact, consensual, nevertheless involved a substantial degree of criminality.
It must be recognised that there were substantial mitigating factors. Other than in respect of charges 2732 and 2738 of 2020, the appellant pleaded guilty. It is not suggested that his Honour failed to properly reflect this mitigating factor in the sentences that were imposed. The appellant is a young offender who, although still young, is at the older end of those offenders who are subject to the Young Offenders Act. His Honour did not expressly refer to the appellant's youth or the principles of juvenile justice in his oral sentencing remarks. No ground of appeal is directed to these omissions, but any such contention is unsustainable, given that, as the respondent points out, the appellant was sentenced by the chief judicial officer of the Children's Court and, in an exchange between his Honour and defence counsel, his Honour observed that the appellant would be 'going to gaol for a very long time' if he was an adult.[33]
[33] Trial ts, 6 May 2021, 31.
His Honour also took into account, as a mitigating factor, the appellant's deprived background. His Honour referred to the Bugmy principles which, in the present context, are to be taken as a shorthand way of characterising the effects of profound deprivation on the appellant.
His Honour was correct to emphasise, in the present case, the sentencing objective of community protection. Despite the appellant's youth, the offending, the expert reports and the appellant's criminal history reveal, as his Honour found, that the appellant poses 'a substantial danger to young women'.[34]
[34] Sentencing ts 16.
It is unnecessary to set out the facts and circumstances of the only case said to be comparable, KWLD. The outcome in one case does not provide a customary range and is of little, if any, assistance. The absence of comparable cases does not preclude the conclusion that a total effective sentence infringes the totality principle. The absence of comparable cases simply means that the ground is to be decided having regard to all of the other facts and circumstances which can properly be applied to the case.
In our opinion, his Honour was correct to order the appellant to serve some of the individual sentences cumulatively. This was necessary in order to reflect the fact that the appellant committed offences against more than one complainant. Further, his Honour was correct to accumulate one of the sentences he imposed for the ill‑treatment of animals. This was completely separate offending and involved a disturbing and cruel offence.
Having evaluated all of the relevant facts and circumstances, and bearing in mind the relevant legal principles, including those which apply to young offenders, we are satisfied that the total effective sentence did not infringe the first limb of the totality principle. In our opinion, the sentence imposed by his Honour bears a proper relationship to the overall criminality involved in all of the offences having regard to all relevant sentencing principles and all relevant sentencing factors. The total effective sentence was appropriate in the particular facts and circumstances of this case.
For these reasons, the ground of appeal has not been made out. In our opinion, the ground had no reasonable prospect of success.
Conclusion and orders
As the ground of appeal had no reasonable prospect of success, leave to appeal should be refused and the appeal dismissed. The orders that we would make are as follows:
1.Leave to appeal is refused.
2.The appeal is dismissed.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
RK
Research Associate to the Honourable Justice Murphy and the Honourable Justice Mazza
3 AUGUST 2022
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