BGE v The State of Western Australia

[2013] WASCA 136

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT :   THE COURT OF APPEAL (WA)

CITATION:   BGE -v- THE STATE OF WESTERN AUSTRALIA [2013] WASCA 136

CORAM:   BUSS JA

MAZZA JA

HEARD:   23 MAY 2013

DELIVERED          :   31 MAY 2013

FILE NO/S:   CACR 273 of 2012

BETWEEN:   BGE

Appellant

AND

THE STATE OF WESTERN AUSTRALIA
Respondent

ON APPEAL FROM:

Jurisdiction              :  DISTRICT COURT OF WESTERN AUSTRALIA

Coram  :BOWDEN DCJ

File No  :IND GER 45 of 2012

Catchwords:

Criminal law - Appeal against sentence - Appellant convicted after trial of one count of indecently dealing with a child under the age of 13 years - Sentence of 20 months' immediate imprisonment - Whether sentence manifestly excessive

Legislation:

Criminal Code (WA), s 320(4)

Result:

Leave to appeal refused
Appeal dismissed

Category:    B

Representation:

Counsel:

Appellant:     Mr R P Arndt

Respondent:     No appearance

Solicitors:

Appellant:     Ryan Arndt Barrister & Solicitor

Respondent:     Director of Public Prosecutions (WA)

Case(s) referred to in judgment(s):

PAS v The State of Western Australia [2009] WASCA 210; (2009) 212 A Crim R 546

The State of Western Australia v Akizuki [2008] WASCA 267; (2008) 192 A Crim R 373

1. BUSS JA:  This is an application for leave to appeal against sentence. 

2. On 28 September 2012, the appellant was convicted, after a trial in the District Court before Bowden DCJ and a jury, on one count in an indictment which alleged that on 2 April 2012, in rural Western Australia, the appellant indecently dealt with the victim, a child under the age of 13 years, by pulling at her clothing, contrary to s 320(4) of the Criminal Code (WA) (the Code).

3. On 14 November 2012, the trial judge imposed a sentence of 20 months' immediate imprisonment, backdated to 3 April 2012.  A parole eligibility order was made.

The facts and circumstances of the offending

1. At the time of the offending the appellant was aged 27 years.  The victim, a girl, was 12.  The appellant and the victim are cousins.

2. On the date of the offence the appellant was at the victim's home.  He spent the day drinking with members of the victim's family.  The victim's older sister, who was aged 20, was present during the day but left in the early part of the evening.

3. The appellant claimed in a video‑recorded interview with the police that the older sister had agreed to have sex with him and had told him to meet her in the victim's bedroom.

4. During the evening the appellant went to the victim's bedroom.  The older sister was not there.  The victim was in bed.

5. The victim's evidence, which was plainly accepted by the jury, was that she felt heavy breathing on her and felt someone attempting to rub against her chest, pulling at her bra strap and trying to place a finger in her bra.  She said in evidence that she kicked her feet and felt something between her legs.

6. The trial judge found that the appellant grabbed the victim's hands and put them against the bed.  The appellant attempted to pull at her shorts and was endeavouring to remove them.  She screamed.  Almost simultaneously, her mother entered the bedroom, turned on the light and saw the appellant between the victim's legs with the victim's shorts unzipped and one of her breasts exposed.  The appellant then fled.

7. His Honour sentenced the appellant on the basis that, when he entered the victim's bedroom, he honestly believed that the older sister was in the bed.  However, his Honour also found that when the appellant began interfering with the victim in her bed the appellant's belief was not reasonable.  His Honour elaborated:

   Now, I accept that you were affected by alcohol.  The mere fact that the victim could feel your breath on her, that you were located on the bed [in] close physical proximity to her, that you were interfering or endeavouring to interfere with her bra and pants, clearly establishes that it wasn't reasonable for you to believe that the 12 year old victim was in fact the 20 year old sister.

   Your belief may well have been fuelled by alcohol, but under no shape or form whatsoever could it be described [as] a reasonable belief … 

   In this case, I do find that the mistake was a grossly unreasonable mistake.  The only basis that I find that it was an honest mistake was because I consider that you were so affected by alcohol that you in fact had that belief.  The evidence, it seems to me, from all the witnesses is that you arrived around about 12 o'clock that day and commenced drinking from that time.

   In your interview with the police, you tend to suggest that you started drinking about 10 … (ts 126).

The psychological report and the pre‑sentence report

1. The information before the trial judge included a report dated 3 November 2012 from Ms Tanina Oliveri, a clinical and forensic psychologist, and a pre‑sentence report dated 1 November 2012. 

2. Ms Oliveri said the appellant had admitted having had many different sexual partners including his relatives.  The appellant told her he would have sexual intercourse with any woman (even his relatives) including strangers and at any time.  He stated 'when drunk I think about sex all the time'.  His comments suggested a preoccupation with matters of a sexual nature and no clear boundaries for such behaviour.

3. According to Ms Oliveri, the appellant showed no understanding of the impact of his offence on the victim.  He did not understand the trauma she would suffer as a result of the offending. 

4. Ms Oliveri referred to a number of factors that are likely to have contributed to the offence in question, including:

   [E]xposure to sexual contact between relatives and the possible normalisation of such behaviour; poor familial boundaries; cognitive distortions which perpetuate sexual contact with relatives and the sexualisation of women; a preoccupation with matters of a sexual nature; lowered inhibitions due to substance abuse; long‑term substance abuse issues; heightened sexual arousal; a desire for sexual gratification; poor judgement; poor impulse control; poor victim empathy; a lack of consequential thinking skills; and a belief that his actions would not be detected.

5. Ms Oliveri assessed the appellant as being at a high risk of reoffending in a sexual manner if he does not make the substantial changes to his attitude and behaviour which are required for him to lead a pro‑social lifestyle.

6. The appellant told the author of the pre‑sentence report that he was intoxicated with alcohol when he committed the offence.  He had consumed a significant amount of beer as well as half a cask of wine, and he had also smoked four cones of cannabis on the date of the offence. 

7. According to the author of the pre‑sentence report, the appellant had failed to demonstrate insight into the impact of his offending on the victim.  He externalised blame towards her older sister.  The appellant had 'significant treatment needs' relating to his substance abuse issues and sexual offending. 

The appellant's prior criminal record

1. The appellant has a reasonably extensive prior criminal record.  He has served a few terms of immediate imprisonment.  Significantly, on 27 March 2009 he was sentenced to 3 years' immediate imprisonment, backdated to 11 June 2008, for the offence of sexually penetrating a child over the age of 13 years and under the age of 16, contrary to s 321(2) of the Code.

The trial judge' sentencing remarks

1. The trial judge referred in his sentencing remarks to the facts and circumstances of the offending, the expert reports, the appellant's prior criminal record and his personal circumstances and antecedents.

2. The appellant had a deprived upbringing.  He has feelings of rejection, neglect and abandonment.  At an early age he witnessed a violent incident where his uncle was fatally stabbed and his aunt was seriously injured.  Since the age of 12, when he was expelled from school, the appellant has been lacking in routine, structure and purpose.  He has never been gainfully employed.

3. The trial judge said the only appropriate disposition was a term of immediate imprisonment.  It was necessary to punish the appellant and protect the community.  There was a need for personal and general deterrence.

4. His Honour took the appellant's honest belief into account in determining the sentence.

The ground of appeal

1. The sole proposed ground of appeal alleges that the sentence imposed by the trial judge was manifestly excessive.

The appellant's submissions

1. Counsel for the appellant informed the court that it was not alleged that his Honour had imposed the wrong type of sentence.  Rather, it was contended that the length of the term of immediate imprisonment was excessive, having regard to his Honour's findings of fact; in particular, that at the time of the offence, or immediately before its commission, the appellant was honestly mistaken as to the identity of the person in the bed occupied by the victim.

The merits of the proposed ground of appeal

1. The maximum penalty for indecently dealing with a child under the age of 13 years, contrary to s 320(4) of the Code, is 10 years' imprisonment.

2. The primary sentencing considerations for offences of the kind in question are punishment of the offender, personal and general deterrence, and the protection of vulnerable children.

3. There is no sentencing tariff for the kind of offence committed by the appellant (or for sex offences generally) because of the greater variation that is possible in the circumstances of the offending and the offender.  The appropriate sentence in a particular case depends on its individual facts and circumstances, having regard to the maximum penalty and all relevant sentencing factors.  See The State of Western Australia v Akizuki [2008] WASCA 267; (2008) 192 A Crim R 373 [68] ‑ [69] (Steytler P, McLure JA agreeing).

4. Generally, as a matter of principle, an offender who has been convicted of indecent dealing with a child under the age of 13 years, and who honestly but unreasonably believed that the victim was of the age of

consent and was consenting to the relevant act, will be less culpable than an offender who did not have an honest belief that the victim was of the age of consent or was consenting.  However, whether and, if so, to what extent, an honest belief will, in a particular case, be a mitigating factor, depends on all the relevant facts and circumstances.  See PAS v The State of Western Australia [2009] WASCA 210; (2009) 212 A Crim R 546 [99] (Buss JA, Owen & Wheeler JJA agreeing).

1. In the present case, although the acts constituting the indecent dealing were at the lower end of the scale of seriousness, the appellant's offending against the 12‑year‑­old victim was, in all the circumstances, serious.  The trial judge's unchallenged finding was that the appellant's honest mistake (fuelled by the consumption of alcohol and cannabis) was grossly unreasonable.  The appellant did not have the benefit of the mitigation that a plea of guilty would have brought.  He was not a person of good character.  The appellant had previously committed numerous criminal offences.  He had recently completed serving a term of 3 years' immediate imprisonment for sexually penetrating a child over the age of 13 years and under the age of 16.  The expert reports before his Honour painted a bleak picture.  The appellant is at a high risk of reoffending in a sexual manner unless he addresses numerous personal and behavioural issues, including his substance abuse and his distorted sexual attitudes towards women and underage girls.  Personal and general deterrence were factors which required substantial weight in the sentencing process. 

2. In my opinion, the sentence of 20 months' immediate imprisonment was of a severity that was appropriate in the circumstances.  After taking into account the maximum penalty (10 years' imprisonment), sentencing standards for the offence in question, the circumstances of the commission of the offence (including the appellant's honest but grossly unreasonable belief), the appellant's personal circumstances and antecedents and all relevant sentencing objectives, it cannot reasonably be argued that the length of the term of immediate imprisonment imposed by his Honour was unreasonable or plainly unjust.

3. The proposed ground of appeal is without merit.

Conclusion

1. The proposed ground of appeal does not have a reasonable prospect of success.  Leave to appeal should be refused.  The appeal must therefore be dismissed.

2. MAZZA JA:  I agree with Buss JA.