Brand v The State of Western Australia
[2011] WASCA 269
•22 DECEMBER 2011
BRAND -v- THE STATE OF WESTERN AUSTRALIA [2011] WASCA 269
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2011] WASCA 269 | |
| THE COURT OF APPEAL (WA) | |||
| Case No: | CACR:229/2010 | 14 SEPTEMBER 2011 | |
| Coram: | McLURE P BUSS JA MAZZA JA | 22/12/11 | |
| 18 | Judgment Part: | 1 of 1 | |
| Result: | Leave to appeal on ground 1 granted Appeal dismissed | ||
| B | |||
| PDF Version |
| Parties: | AARON-JAMES STUART BRAND THE STATE OF WESTERN AUSTRALIA |
Catchwords: | Criminal law Appeal against sentence Eight counts of sexually penetrating a child between the age of 13 and 16 years Whether sentencing judge failed to take into account, as mitigating factors, the complainant's willingness, consent and her deception as to her age Whether sentence manifestly excessive |
Legislation: | Criminal Code (WA), s 321, s 321(2), s 321(7), s 321(9), s 321A(3), s 321A(4), s 321A(9) Sentencing Act 1995 (WA), s 6(1), s 6(2), s 6(2)(b), s 6(2)(d), s 7(1), s 8(1), s 8(4), s 39(2), s 39(2)(a), s 39(2)(b), s 39(2)(e), s 45, s 46, s 76(2) |
Case References: | Deering v The State of Western Australia [2007] WASCA 212 Hili v The Queen [2010] HCA 45; (2010) 272 ALR 465 Poulton v The State of Western Australia [2008] WASCA 97 Riggall v The State of Western Australia [2008] WASCA 69; (2008) 37 WAR 211 Royer v The State of Western Australia [2009] WASCA 139; (2009) 197 A Crim R 319 Simon v The State of Western Australia [2009] WASCA 10 Sunfly v The State of Western Australia [2009] WASCA 22 The State of Western Australia v Lee [2008] WASCA 150 The State of Western Australia v SJH [2010] WASCA 40; (2009) 200 A Crim R 228 Wilson v The State of Western Australia [2010] WASCA 82 Wiltshire v Mafi [2010] WASCA 111 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : BRAND -v- THE STATE OF WESTERN AUSTRALIA [2011] WASCA 269 CORAM : McLURE P
- BUSS JA
MAZZA JA
- Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram : DEANE DCJ
File No : BRO 28 of 2010
Catchwords:
Criminal law - Appeal against sentence - Eight counts of sexually penetrating a child between the age of 13 and 16 years - Whether sentencing judge failed to take into account, as mitigating factors, the complainant's willingness, consent and her deception as to her age - Whether sentence manifestly excessive
(Page 2)
Legislation:
Criminal Code (WA), s 321, s 321(2), s 321(7), s 321(9), s 321A(3), s 321A(4), s 321A(9)
Sentencing Act 1995 (WA), s 6(1), s 6(2), s 6(2)(b), s 6(2)(d), s 7(1), s 8(1), s 8(4), s 39(2), s 39(2)(a), s 39(2)(b), s 39(2)(e), s 45, s 46, s 76(2)
Result:
Leave to appeal on ground 1 granted
Appeal dismissed
Category: B
Representation:
Counsel:
Appellant : Mr R W Richardson
Respondent : Mr J McGrath
Solicitors:
Appellant : Aboriginal Legal Service (WA)
Respondent : Director of Public Prosecutions (WA)
Case(s) referred to in judgment(s):
Deering v The State of Western Australia [2007] WASCA 212
Hili v The Queen [2010] HCA 45; (2010) 272 ALR 465
Poulton v The State of Western Australia [2008] WASCA 97
Riggall v The State of Western Australia [2008] WASCA 69; (2008) 37 WAR 211
Royer v The State of Western Australia [2009] WASCA 139; (2009) 197 A Crim R 319
Simon v The State of Western Australia [2009] WASCA 10
Sunfly v The State of Western Australia [2009] WASCA 22
The State of Western Australia v Lee [2008] WASCA 150
The State of Western Australia v SJH [2010] WASCA 40; (2009) 200 A Crim R 228
Wilson v The State of Western Australia [2010] WASCA 82
Wiltshire v Mafi [2010] WASCA 111
(Page 3)
1 McLURE P: I agree with the orders proposed by Mazza JA generally for the reasons he gives. I wish to make some additional observations on ground 1. The submissions put by the appellant's counsel in relation to ground 1 overlook the distinction between factors relevant to an assessment of the seriousness of the circumstances of the offence on the one hand and mitigating factors on the other. That there is a distinction is evident in s 6(2)(b) and (d) of the Sentencing Act 1995 (WA) (the Act). Section 8(4) of the Act only applies to mitigating factors.
2 The matters relied on by the appellant as mitigating are in truth circumstances that inform an assessment of where the offending fits in the scale of seriousness of crimes of that type. The sentencing judge correctly concluded that whilst the matters relied on did not excuse the offending or reduce it to a mere technicality, they contributed to it coming within the lower end of the scale of seriousness. See Simon v The State of Western Australia [2009] WASCA 10; Sunfly v The State of Western Australia [2009] WASCA 22. The sentencing judge did not expressly or impliedly err in the exercise of the sentencing discretion.
3 BUSS JA: I agree with Mazza JA, generally for the reasons he gives, that leave to appeal on ground 1 should be granted, but that the appeal should be dismissed. I also agree with the additional observations of McLure P.
MAZZA JA:
Background
4 The appellant pleaded guilty after negotiations, and at an early stage in the proceedings, to eight counts of sexually penetrating 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 maximum penalty applicable to the appellant for this offence is 14 years' imprisonment: s 321(7) of the Criminal Code. The sentencing judge, Deane DCJ, imposed an 18-month intensive supervision order (ISO). In addition to the standard supervision requirement in the order, her Honour ordered a program requirement: AB 59. The appellant appeals to this court against this sentence.
The circumstances of the appellant's offending
5 There is no dispute as to the facts of the appellant's offending.
6 For about six weeks prior to 24 January 2010, the appellant, who was then aged 21, began regularly communicating via a mobile telephone
(Page 4)
- based social networking service, with the complainant, a girl who was then aged 15. Although she was 15, her profile on the service said she was 19. Eventually, the appellant and the complainant made arrangements to meet face-to-face. At about 1 am on 24 January 2010, the appellant and the complainant met for the first time. The appellant picked the complainant up in a taxi from somewhere near her grandmother's house, which was just outside Broome. They travelled together in the taxi to Roebuck Bay Caravan Park, where the appellant was living.
7 Prior to entering his caravan, the appellant asked the complainant how old she was. She told him that she was 17. The appellant was sentenced on the basis that, at all relevant times, he believed that the complainant was over 16.
8 Shortly after entering the caravan, the appellant and the complainant began engaging in consensual sexual activity. It can be said that the complainant initiated it, but that is not to say that the appellant was in any way reluctant or that all the sexual activity which followed was started by her. Over the course of approximately nine hours, the appellant sexually penetrated the complainant eight times in various ways. That conduct included penile penetration of the vagina, cunnilingus and fellatio.
9 At approximately 10.30 am on 24 January 2010, the police came to the caravan, looking for the complainant. Shortly after, the appellant was interviewed by police officers. He admitted sexually penetrating the complainant. The appellant told the officers that he was unsure whether it was legal for a 21-year-old male to have consensual sex with a 15-year-old female: AB 118.
The appellant's antecedents
10 The appellant is an Aboriginal man who was born in Broome, but grew up in Perth with his father. After undertaking some study, he moved back to Broome when he was 19. At the time he was sentenced, he was undertaking a traineeship at a local art and craft shop, and was performing well in that work.
11 The appellant has, since the age of 10, experienced some mental health problems for which, at various times, he has been hospitalised. These problems include a history of suicidal ideation and ADHD. A psychological assessment revealed an anger control disorder and mixed personality dysfunction with narcissistic and paranoid features: pre-sentence report, pages 3 and 4.
(Page 5)
12 The appellant had a minor criminal record. Prior to the commission of the offences, he had been convicted of common assault on 24 November 2008, unlawful damage on 31 July 2009 and damaging property on 8 February 2010. For these offences, he had been either fined or placed on a conditional release order (CRO). On 30 July 2010, he was convicted of another offence of damaging property which had occurred 12 days earlier. He was placed on an 8-month community based order (CBO) with a program requirement: AB 62. At the time of sentencing, he had been compliant with that order.
13 The appellant gave contradictory information about his illicit drug use. He told the pre-sentence report author that he had never used illicit substances, but Graylands Hospital reported in 2008 that he had used cannabis and later LSD and amphetamines: pre-sentence report, page 4; and AB 57.
14 The assessment of the pre-sentence report author was that the appellant was not a predatory sex offender and did not pose a risk to the community of reoffending in a similar manner: pre-sentence report, pages 4 and 5. In her opinion, as the appellant was benefiting from the CBO, further supervision may have been appropriate.
The parties' submissions before the sentencing judge
15 In order to put the sentencing remarks in context and in order to understand the appellant's submissions on the grounds of appeal, it is necessary to set out in some detail the sentencing submissions that were made by counsel and her Honour's comments in relation to them.
16 Defence counsel submitted that in the exceptional circumstances of the case, the appropriate disposition was, as he put it, 'a good behaviour bond'. What he really meant was a CRO, pursuant to s 39(2)(b) of the Sentencing Act1995 (WA): AB 43, 52. Defence counsel did not seek any lesser disposition and did not seek a spent conviction order.
17 Defence counsel submitted that the appellant's culpability was 'almost at vanishing point': AB 43, having regard to the following factors:
(a) The appellant's honest and reasonable belief that the complainant was over 16 years of age: AB 44.
(b) At the time of the offences, the complainant was 15 years and 2 months old: AB 46.
(Page 6)
- (c) The complainant was 'entirely willing' and initiated the sexual conduct: AB 46, 47.
(d) The appellant made 'a positive inquiry' as to the complainant's age when walking to the caravan, prior to the commencement of sexual activity, and she deceived him as to her age: AB 47.
(e) The absence of abuse on the part of the appellant: AB 48.
18 In addition to these matters, defence counsel emphasised the appellant's cooperation with the police, his pleas of guilty, his remorse, his 'limited criminal record', his employment, his stable relationship with a woman who was a police cadet, and the low assessment of risk mentioned in the pre-sentence report: AB 43, 50, 51.
19 During counsel's plea in mitigation, her Honour sought clarification from the prosecutor as to whether it was accepted that the appellant believed, based on what he had been told by the complainant, that she (the complainant) was over the age of 16 years. The prosecutor told her Honour that the State took no issue with what defence counsel had said. The following exchange then took place:
DEANE DCJ: Then I think the bottom line, as it were, is that I would simply have to accept it and sentence on that basis.
KEANE, MS: Yes, your Honour.
DEANE DCJ: It is not to the point because of course the legislation is aimed at this very point but I am also taking into account in this matter that unlike some cases involving under-age girls and adult males there was no grooming; there was no cajoling; there was certainly no violence or anything of that nature, so it doesn't fall into the very bad categories of this type of offending that one sees.
KEANE, MS: No, your Honour, and also it has been said in the authorities or it has been noted in the authorities that in circumstances where an adult male becomes aware of the age and the offending persists, that may aggravate.
DEANE DCJ: Yes.
KEANE, MS: And of course that isn't present here either. The [S]tate is not suggesting that that is present.
DEANE DCJ: No, so that should assist, Mr Brunello [defence counsel]: AB 45.
(Page 7)
20 Later in the plea in mitigation, her Honour made the following observation:
DEANE DCJ: Again whilst it is not to the point because the legislation is aimed at protecting under-age females, it is I suppose objectively a fact that it was a situation in which the complainant was an active participant. It's not mitigatory but again it distinguishes it from a situation where a complainant is in some way put upon: AB 46.
21 Defence counsel then continued:
BRUNELLO, MR: In my submission this was entirely willing and I use the word 'consensual' in the limited term that it ought [to] be used in these sorts of cases.
DEANE DCJ: As a matter of law, that is irrelevant.
BRUNELLO, MR: Consent was not obtained by force or pressure or duress. It wasn't even reluctantly given or did not constitute simple acquiescence.
DEANE DCJ: No. I accept that: AB 46- 47.
22 At the conclusion of the plea in mitigation, before calling on the prosecutor, her Honour observed that the case was 'an unusual matter … as these matters go': AB 52.
23 The State conceded that there was no element of abuse in the offending. However, the prosecutor submitted that a good behaviour bond (CRO) was 'insufficient' and that her Honour should impose a conditional suspended imprisonment order: AB 52.
24 Her Honour countered this submission by correctly observing that a conditional suspended imprisonment order can only be imposed when imprisonment is the only appropriate disposition: s 76(2) of the Sentencing Act. Her Honour then said:
I must say, serious as this is - the conduct is serious, but then when one looks at all the circumstances, it tends to put into perspective the conduct. It doesn't detract from the gravity of it but it puts it into perspective in a way that distinguishes it from a number of other examples of this type of offending where imprisonment or sometimes even suspended imprisonment is imposed: AB 52.
25 Her Honour continued:
[W]hilst [defence counsel] has quite clearly and in a very articulate manner explained the level of culpability of his client, there is still the fact
(Page 8)
- that the legislation makes it plain that people under the age of 16, notwithstanding their apparent level of sophistication and sexual awareness, need to be protected. It seems to me that this young man, although he is beginning on a path of rehabilitation which looks promising - it is early days yet.
There are clearly difficulties in the past, not of his own making in large part, that have led him to a point where he has offended and notwithstanding the fact that he is currently on an order and doing well, it seems to me this would be a case where out of an abundance of caution and also by way of a form of punishment an intensive supervision order could be put in place, in conjunction with the current order, because that would be an incentive not to reoffend but it would also provide him with further support in the community: AB 53.
26 Her Honour then said to the prosecutor, at the conclusion of the prosecutor's sentencing submissions:
DEANE DCJ: I suppose, Ms Keane, parliament can only legislate so far. In fairness, sometimes it is very difficult to assess another person's age by looking at them and some people do project in a more mature way than their true age might indicate. Sadly, it's a bit of a minefield. That I think is why it is necessary to deal with it on a case by case basis.
KEANE, MS: Yes. What your Honour is proposing appears to be very appropriate in the circumstances of this matter.
DEANE DCJ: Thank you. Mr Brunello, they are my views. If you have anything further to add, please let me know.
BRUNELLO, MR: Nothing further, your Honour: AB 54.
27 Her Honour then immediately proceeded to make her sentencing remarks and pronounce sentence.
Her Honour's sentencing remarks
28 Her Honour commenced her sentencing remarks by acknowledging that she had the benefit of defence counsel's plea in mitigation, as well as the pre-sentence report and other materials which had been provided to her by defence counsel.
29 She explained that the appellant's offending was objectively serious, and that 'it doesn't matter a great deal in the eyes of the law that the complainant was a willing and active participant in this behaviour because consent is not an issue'.
(Page 9)
30 Her Honour then expressly referred to the appellant's remorse and his pleas of guilty. She noted that the appellant was 6 years older than the complainant, but acknowledged that this fact 'did not become apparent to [the appellant] until after the offending came to an end': AB 58. She accepted that there was no violence or grooming, or any attempt to persuade the complainant to engage in the sexual activity: AB 58. She acknowledged the appellant's 'generally good antecedents': AB 59. She accepted that the offences were not repetitive or persistent: AB 59.
31 Her Honour noted that the complainant, while under the age of 16 years, was 15 years and 2 months at the time of the offending.
32 Her Honour referred to the need to provide general deterrence. She did so in these terms:
[I]t must be that general deterrence is emphasised because the legislation is in place to protect young and adolescent females from sexual activity involving older males in circumstances where the under-age female may not have the emotional maturity to necessarily understand the implications or consequences of their behaviour: AB 59.
33 Her Honour recognised that the usual sentence for offences of this kind was imprisonment, but in the circumstances of the case, that was not the only appropriate disposition: AB 59.
34 In imposing the ISO, her Honour expressed the hope that any benefits the appellant had derived from the CBO, which he was serving and which was shortly to expire, would continue 'to ensure that [he did] not reoffend sexually or in any other way in the future': AB 59.
The grounds of appeal
35 There are two grounds of appeal. Both are particularised at some length.
36 Ground 1 alleges that her Honour made a series of express and material errors such that this court should intervene and resentence the appellant. In his oral submissions, Mr Richardson, for the appellant, submitted that her Honour failed to take into account, as mitigatory factors, a number of matters, most importantly the complainant's willingness to engage in the sexual activity with the appellant, her consent to that activity and her deception as to her age. To save repetition, I will refer to these matters as the complainant's conduct. Leave to appeal is required with respect to this ground.
(Page 10)
37 Ground 2 alleges that the sentence imposed by her Honour was manifestly excessive. It is alleged that the wrong type of sentence was imposed. The appellant says that this court should order that no sentence be imposed, pursuant to s 39(2)(a) and s 46 of the Sentencing Act, and that a spent conviction order should also be made pursuant to s 45 of the Sentencing Act. Leave to appeal with respect to this ground has been granted.
Appellate sentencing principles
38 The principles by which this appeal must be decided are well known. They were described by this court in Wilson v The State of Western Australia [2010] WASCA 82 [2] as follows:
The relevant principles on which an appellate court operates are dictated by the Criminal Appeals Act2004 (WA) and by previous decisions of the High Court and of this court that we are bound to follow or that represent persuasive authority. Those principles include the following.
1. The imposition of a sentence involves the exercise of a discretion. An appellate court can only intervene if the appellant demonstrates that the judge erred in exercising the discretion in one of two ways. The first is called express error and it involves acting on a wrong principle, for example, by mistaking the law, mistaking the facts, taking into account an irrelevant matter or failing to take into account a relevant consideration. The second is referred to as implied or inferred error. It arises where, although it is not possible to discover the exact nature of the error, the end result is so unreasonable or unjust that the court must conclude that a substantial wrong has occurred: House v The King (1936) 55 CLR 499, 505. In most instances a challenge based on implied error will involve the contention that an individual sentence is manifestly excessive (or inadequate) and (or) that the total effective term imposed for all charges offends the totality principle.
2. It follows that the appeal court will not intervene simply because the members of the court, had they been sentencing the offender at the original hearing, might have imposed a different sentence: House, 505.
3. Even if error is demonstrated the appellate court can intervene only if it is satisfied that a different sentence should have been imposed at the original hearing: Criminal Appeals Act s 31(4)(a).
The appellant's submissions in support of the grounds of appeal
39 In support of ground 1, Mr Richardson submitted that some of the statements made by her Honour during the course of defence counsel's
(Page 11)
- plea in mitigation and her Honour's failure to expressly refer, in her sentencing reasons, to the complainant's conduct as mitigating factors which reduced the sentence that would otherwise have been imposed, as required by s 8(4) of the Sentencing Act, led to the conclusion that her Honour failed to take them into account. Mr Richardson pointed to her Honour's statements during defence counsel's plea in mitigation that '[i]t [was] not to the point' that the appellant believed that the complainant was 16 and that the complainant was an active participant in the sexual activity. He particularly emphasised her Honour's observation that the complainant's active participation in the sexual activity was 'not mitigatory'. Mr Richardson argued that her Honour had apparently formed the erroneous view that the provisions of s 321 of the Criminal Code precluded her from taking into account, as mitigating factors, the complainant's conduct.
40 In support of ground 2, Mr Richardson submitted that the present case was analogous to the case of Riggall v The State of Western Australia [2008] WASCA 69; (2008) 37 WAR 211, and that the appellant's culpability was such that no punishment was warranted, and that a spent conviction order should have been made.
Analysis of ground 1
41 The fundamental task which her Honour was obliged to perform was to impose a sentence upon the appellant that was commensurate with the seriousness of his offending: s 6(1) of the Sentencing Act. The seriousness of an offence is determined by taking into account the statutory penalty for the offence, the circumstances of its commission, including the vulnerability of the victim, any aggravating factors and any mitigating factors: s 6(2) of the Sentencing Act. Aggravating factors are factors which, in the court's opinion, increase the culpability of the offender: s 7(1) of the Sentencing Act. Mitigating factors are factors which, in the court's opinion, decrease the culpability of the offender or decrease the extent to which the offender should be punished: s 8(1) of the Sentencing Act.
42 The real issue raised by this ground is whether her Honour erred in her appreciation of the seriousness of the appellant's offending.
43 Section 321(2) of the Criminal Code, and offences like it such as s 321A(3) (now s 321A(4)) of the Criminal Code, have been examined by this court on a number of occasions in recent years in such cases as Deering v The State of Western Australia [2007] WASCA 212; Riggall; Poulton v The State of Western Australia [2008] WASCA 97; The State
(Page 12)
- of Western Australia v Lee [2008] WASCA 150; Simon v The State of Western Australia [2009] WASCA 10; Sunfly v The State of Western Australia [2009] WASCA 22; and The State of Western Australia v SJH [2010] WASCA 40; (2009) 200 A Crim R 228. This court has consistently emphasised the seriousness of these offences. The policy which underlies them is the protection of children, first, from those who seek to prey or otherwise exploit their vulnerability, and second, from themselves, regardless of their maturity and sexual experience: Deering [17] - [18]. With this aim in mind, the legislature chose to create offences where consent is not an element and to provide that it is no defence for an accused to believe, on reasonable grounds, that the complainant was over the age of 16 years, unless the offender is not more than three years older than the child: s 321(9) and s 321A(9) of the Criminal Code.
44 While, in this case, issues of consent and belief as to age were irrelevant to the appellant's guilt, they were relevant for the purposes of sentencing, because they were factors which materially impacted on her Honour's assessment of the seriousness of the appellant's conduct.
45 The contention that her Honour erred in her assessment of the seriousness of the offences has to be judged having regard to all of what her Honour said in the sentencing proceedings and her sentencing remarks themself, rather than by viewing some of what was said separately and in isolation. Further, it should not be overlooked that her Honour had before her a young man who, like some in the community, did not, based on his answers in the video record of interview, have a clear knowledge or understanding that it was illegal for a man of his age to have sex, even on a consensual basis, with a 15-year-old girl. It seems to me that what her Honour said in these sentencing proceedings was in part aimed to make it clear to the appellant, and no doubt to others, that his conduct constituted a serious criminal offence. It is in this context that her Honour made the comments that it was not to the point that the appellant believed the complainant was over the age of 16 years and an active participant in the sexual activity.
46 Although I will deal with the range of sentences customarily imposed in ground 2, it is well recognised that although each case must be decided on its own circumstances, as a matter of fact, ordinarily, the sentence imposed for an offence under s 321(2) (or s 321A(3)) is a term of imprisonment: Sunfly [22].
47 Imprisonment, either immediate or suspended, has been imposed in the following instances:
(Page 13)
- (a) for a single count of sexual penetration by an 18 or 19-year-old male with a girl he believed was 15 years old: Simon v The State of Western Australia;
(b) where the sexual activity between the appellant and the complainant was consensual and the complainant presented the appellant with opportunities to engage in such activity: Poulton v The State of Western Australia;
(c) where the respondent understood from what he was told by a complainant that she was 16 years of age: The State of Western Australia v Lee; and
(d) where an appellant aged 20 years sexually penetrated a girl between the ages of 12 and 13, who was a willing participant and initiated some of the sexual activity, in circumstances where there was no evidence of predatory behaviour, coercion or misuse of the age difference between the complainant and the appellant: The State of Western Australia v SJH.
48 If, as Mr Richardson contends, her Honour had failed to take into account the complainant's conduct in judging the seriousness of the offending, so that the only matters her Honour took into account were the acts of sexual penetration, the age of the complainant, the pleas of guilty and the appellant's personal circumstances, it is extremely difficult to see how an ISO would have been justified. The sentence she imposed was only possible by her Honour forming the view that the seriousness of the offending was low. That conclusion could only have been reached by her Honour taking into account the complainant's conduct when gauging the seriousness of the offences. In my opinion, it can be inferred from the sentence that was imposed, and from what was said in the sentencing proceedings as a whole, that her Honour took into account the complainant's conduct and all other relevant considerations.
49 Mr Richardson's emphasis on her Honour's observation that the complainant's active participation in the sexual activity was not mitigatory is, with respect, overstated. The comment was made during defence counsel's plea in mitigation. Later in the sentencing proceedings, her Honour made the comment referred to in [24] of these reasons, that a consideration of all of the circumstances put into perspective the offending and distinguished it from cases where imprisonment or even suspended imprisonment have been imposed. Whatever her Honour's view had been earlier in the sentencing proceedings, by the time she came
(Page 14)
- to sentence the appellant, it is clear that she had considered all of the circumstances which had been put before her by defence counsel in arriving at her view that an ISO was the appropriate disposition.
50 I do not accept Mr Richardson's submission based on s 8(4) of the Sentencing Act. That section provides:
If because of a mitigating factor a court reduces the sentence it would otherwise have imposed on an offender, the court must state that fact in open court.
51 Her Honour did not, in her sentencing remarks, expressly refer to the complainant's conduct as mitigating factors which reduced the sentence she would otherwise have imposed. However, a failure to comply with s 8(4) of the Sentencing Act is not necessarily an appealable error. It is a failure to implement a public policy designed to help the person being sentenced (and those who have an interest in the proceedings) to understand how the result has been arrived at. Failure to comply with s 8(4) may indicate error if the sentence can be shown by other means not to have been discounted to reflect the relevant mitigating factors: Royer v The State of Western Australia [2009] WASCA 139; (2009) 197 A Crim R 319 [59] - [60]; and Wiltshire v Mafi [2010] WASCA 111 [36].
52 For the reasons which I have already given, it is clear that her Honour took into account the complainant's conduct and all other relevant matters in assessing the seriousness of the appellant's offending.
53 With respect to the appellant's counsel, it seems to me that the approach that he took in ground 1 was to engage in an overly strict and literal reading of what was said by her Honour during the proceedings, particularly to those comments made by her Honour during defence counsel's sentencing submissions. Judicial statements made at this stage of the proceedings may be designed to test the value of a submission or to express a view which may be tentative or not fully formed. They should not necessarily be seen as expressing a final or concluded position.
54 For these reasons, although I would grant leave to appeal, ground 1 has not been made out.
Analysis of ground 2
55 The allegation that the sentence imposed by her Honour was manifestly excessive, because the wrong type of sentence was imposed, is to be judged having regard to the following factors:
(Page 15)
- (a) the statutory maximum penalty;
(b) the standards of sentencing customarily observed with respect to the offence;
(c) the place which the criminal conduct occupies in the scale of seriousness of offences of that type; and
(d) the personal circumstances of the offender.
56 I referred elsewhere in these reasons to the maximum penalty which the appellant faced.
57 There is no tariff for offences of this type because the circumstances and seriousness can vary widely. Ultimately, each case must be decided on its own facts. Sentences in other cases provide a yardstick against which to measure the sentence imposed in the case under a consideration as a means of ensuring consistency. However, they do not prescribe the range of sound sentencing discretion: Hili v The Queen [2010] HCA 45; (2010) 272 ALR 465 [54], [56].
58 The standards of sentencing customarily observed for offences pursuant to s 321(2) of the Criminal Code were recently examined by Steytler P in Simon v The State of Western Australia [20] - [24]. It is unnecessary for me to duplicate that examination. His Honour observed, at [42], that non-custodial dispositions were unusual for offending of this type. Observations to the same effect were made by McLure JA in Sunfly v The State of Western Australia: '[O]rdinarily a sentence of imprisonment is imposed for such an offence' [22]; and by Wheeler JA in The State of Western Australia v SJH:
I accept … that a custodial sentence would be the usual disposition one would expect for an offence pursuant to s 321(2) [47].
59 The appellant placed great reliance on the case of Riggall v The State of Western Australia to establish the proposition that the sentence in this case was manifestly excessive, the argument being that the circumstances of the case were analogous to the present case, and so the sentence imposed upon the appellant in Riggall should be imposed upon the appellant here.
60 The facts of Riggall are as follows. Mr Riggall was a 22-year-old man with no prior record of convictions and excellent antecedents. Over time he developed a relationship with a male (the complainant) who told him that he was 19 years old and was studying or was about to commence
(Page 16)
- study at a tertiary institution. Mr Riggall reasonably believed what the complainant had told him. In fact, the complainant was 14 years of age. Mr Riggall and the complainant engaged in some incidents of sexual activity where mutual masturbation, an incident of fellatio and an act of anal sex occurred. The sentencing judge found that the complainant had been the pursuer in the relationship and had not been harmed by it.
61 Mr Riggall became aware of the complainant's actual age. As soon as he did, he accused the complainant of lying to him and the sexual aspect of their relationship ceased. Mr Riggall pleaded guilty to two counts of indecently dealing with a child between the ages of 13 and 16 years, and two counts of sexual penetration of a child between the ages of 13 and 16 years. At first instance, he was sentenced to a 12-month CBO with a requirement that he perform 100 hours of unpaid work.
62 Wheeler JA, with whom Buss JA and Miller JA agreed, said that it was difficult to imagine the offences being committed in circumstances less worthy of blame [50]. The case was of a type which Wheeler JA described as both exceptional and rare [79].
63 There are similarities between Riggall and this case. In each case, there was no element of abuse, the complainant was a willing participant in the sexual activity and had engaged in deception as to their age.
64 But there are some material differences. In Riggall, unlike the present case, the complainant's deception was persistent and prolonged. Further, in the present case, unlike Riggall, while the appellant had asked the complainant about her age, her response does not appear to be causative of his conduct. It would appear, based on his video record of interview, that he did not believe it was illegal for a 21-year-old to have consensual sex with a girl under the age of 16.
65 There are further differences between the cases. Riggall had excellent antecedents, no apparent history of psychological or substance abuse problems and no criminal record at all. It was highly unlikely that he would offend in any way again. It appears that he required no supervision of any kind.
66 The appellant, on the other hand, had a history of ongoing psychological problems and a criminal history. Although minor, the appellant had been convicted of three offences of damage committed between April 2009 and July 2010, the last of which was committed after being charged with the offences the subject of this appeal. The pre-sentence report noted that the appellant had issues relating to anger
(Page 17)
- management which were being addressed through psychological counselling, although only two such sessions had occurred.
67 One case does not set the range of sentences customarily imposed. Riggall is a rare and exceptional case. Although the seriousness of the offending in the present case is low, the two cases are not equals.
68 The seriousness of the offences committed by the appellant did not require the imposition of a custodial term, whether immediate or suspended. However, the appellant had committed serious offences. While, having regard to all of the circumstances of the case, it fell at the low end of seriousness, some aspect of general deterrence was required in order to reflect the policy behind s 321(2), that children must be protected from themselves. Her Honour, rightly in my opinion, regarded the appellant as someone who required, and would benefit from, further supervision and programs to promote not only his welfare, but to lessen his prospects of reoffending generally.
69 Her Honour, doubtless, imposed an ISO in order to take advantage of the greater resources one expects would be part of such an order. A CRO would not have provided any supervision for the appellant.
70 In my opinion, her Honour's decision in this case was a just and reasonable outcome. It was a proper exercise of her Honour's discretion and I would not interfere with it.
71 Once her Honour concluded that an ISO was required, release without sentence pursuant to s 46 of the Sentencing Act was not open to her because of the terms of the section.
72 Section 46 of the Sentencing Act provides:
Release without sentence
A court sentencing an offender may impose no sentence if it considers that -
(a) the circumstances of the offence are trivial or technical; and
(b) having regard to -
(i) the offender’s character, antecedents, age, health and mental condition; and
(ii) any other matter that the court thinks is proper to consider,
that it is not just to impose any other sentencing option.
(Page 18)
73 A judge cannot release an offender without sentence unless, by reason of the matters in subpars (a) and (b), it would be unjust to impose any other sentencing option. The reference to 'any other sentencing option' refers to the sentencing options set out in s 39(2) of the Sentencing Act, one of which is an ISO: s 39(2)(e). As an ISO is, in the circumstances of this case, a just sentencing option, there can be no basis for releasing the appellant without sentence. Finally, and for the sake of completeness, a spent conviction order is not available once an ISO has been imposed: s 39(2)(e) of the Sentencing Act.
74 For these reasons, ground 2 has not been made out.
Conclusion
75 Neither ground of appeal has been made out. Accordingly, the appeal must be dismissed.
Orders
76 I would make the following orders:
1. Leave to appeal on ground 1 is granted.
2. The appeal is dismissed.
10
11
2