Germain v The State of Western Australia
[2004] WASCA 293
•8 DECEMBER 2004
GERMAIN -v- THE STATE OF WESTERN AUSTRALIA [2004] WASCA 293
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2004] WASCA 293 | |
| COURT OF CRIMINAL APPEAL | |||
| Case No: | CCA:160/2004 | 8 NOVEMBER 2004 | |
| Coram: | MURRAY J MCKECHNIE J SIMMONDS J | 8/12/04 | |
| 10 | Judgment Part: | 1 of 1 | |
| Result: | Appeal dismissed | ||
| A | |||
| PDF Version |
| Parties: | MARCUS GEOFFREY GERMAIN THE STATE OF WESTERN AUSTRALIA |
Catchwords: | Criminal law and procedure Sentencing principles Sexual penetration offences on child Elusiveness of tariff Limited use of other decisions as a guide Whether failure to suspend sentence an error |
Legislation: | Nil |
Case References: | Dempsey v The Queen, unreported, CCA SCt of WA; Library No 960059; 9 February 1996 Lowndes v The Queen (1999) 195 CLR 665 Marris v The Queen [2003] WASCA 171 R v Avery [2002] WASCA 136 R v Chilvers [2003] WASCA 87 Woods v The Queen (1994) 14 WAR 341 Nil |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : COURT OF CRIMINAL APPEAL CITATION : GERMAIN -v- THE STATE OF WESTERN AUSTRALIA [2004] WASCA 293 CORAM : MURRAY J
- MCKECHNIE J
SIMMONDS J
- Applicant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram : WILLIAMS DCJ
Citation : THE STATE OF WESTERN AUSTRALIA v MARCUS GEOFFREY GERMAIN
File No : IND 1468 of 2004
(Page 2)
Catchwords:
Criminal law and procedure - Sentencing principles - Sexual penetration offences on child - Elusiveness of tariff - Limited use of other decisions as a guide - Whether failure to suspend sentence an error
Legislation:
Nil
Result:
Appeal dismissed
Category: A
Representation:
Counsel:
Applicant : Mr D P A Moen & Mr J R Noble
Respondent : Mr R E Cock QC & Ms N A Lockwood
Solicitors:
Applicant : Jeremy Noble
Respondent : State Director of Public Prosecutions
Case(s) referred to in judgment(s):
Dempsey v The Queen, unreported, CCA SCt of WA; Library No 960059; 9 February 1996
Lowndes v The Queen (1999) 195 CLR 665
Marris v The Queen [2003] WASCA 171
R v Avery [2002] WASCA 136
R v Chilvers [2003] WASCA 87
Woods v The Queen (1994) 14 WAR 341
(Page 3)
Case(s) also cited:
Nil
(Page 4)
1 MURRAY J: I have had the advantage of reading in draft the judgment delivered by McKechnie J.
2 I entirely agree with it and with his Honour's conclusion that although leave to appeal may be granted in this case, the appeal must be dismissed.
3 It is important, in my opinion, that his Honour makes the point that other decided cases, although there may be elements of similarity in their factual circumstances to the case before the Court, are of little assistance in cases such as this. The relevant facts will be those concerned, not only with the commission of the offence or offences in question, but also the circumstances personal to the offender. Reliance on previously decided cases, in cases of this kind, does not assist in establishing any tariff for sentencing purposes.
4 Reliance on such cases is of even less assistance when the question is whether the exercise of sentencing discretion has miscarried in respect of the decision of the Court to suspend service of the sentence imposed or to decline to do so. It is important to remember in such cases that the decision whether or not to suspend service of the sentence is discretionary and that it will be informed by the factors bearing upon the decision that imprisonment is the only appropriate sentence available.
5 MCKECHNIE J: This is an application by a 27 year old man to appeal against a total sentence of 32 months' imprisonment, with parole eligibility, imposed upon him for a series of sexual offences, all of which occurred on 13 June 2004 in the course of an evening. The complainant was a girl aged 12 years. The principal argument advanced on behalf of the applicant is that any sentence of imprisonment ought to have been suspended. The second argument is that the sentence was manifestly excessive in the circumstances.
The offences
6 On the evening of Sunday, 13 June 2004, the complainant, who was in the care of her friend's mother, attended a party. At the party she consumed some alcohol and marijuana and as a result was somewhat intoxicated.
7 The applicant was also at the party having previously been drinking at a pub. He was intoxicated, probably because his father had recently died and had taken to drinking in excess as a coping mechanism.
(Page 5)
8 At all events, the complainant and applicant fetched up at another house. They started play-fighting and matters progressed from there. Two indecent dealings were committed in the course of that activity. The complainant wrongly told the applicant that she was aged 14. The two then went to another address. Each undressed. There was a further indecent dealing and then three offences of sexual penetration occurred: one of cunnilingus and one of fellatio before the applicant inserted his fingers into the complainant's vagina. The applicant attempted penile penetration of the complainant but failed.
9 The applicant was interviewed by police on 18 June 2004 and although he initially denied the offences he shortly thereafter made full admissions. He pleaded guilty at the earliest opportunity and appeared in the District Court on 14 September 2004.
10 The following features emerge from the events of the night. The complainant was unknown to the applicant and no doubt appeared to him to be a willing enough participant. She wrongly said she was 14 although she was in fact 12. Consent is not an element of the offences but is a matter to be taken into account in the overall assessment of the gravity of the crime. There was no coercion or force used by the applicant.
The sentence
11 The applicant had no prior convictions and was in gainful and responsible employment. He had worked full-time since leaving school. Many referees spoke very highly of him knowing the nature of the offences with which he had been charged. The pre-sentence report was positive. A psychological report noted that the factors point to a medium low risk of re-offending in a similar manner. Situational factors appear to have contributed to his offending. The applicant does not manifest a paedophilic orientation.
12 In respect of the three more serious counts of sexual penetration, the Judge imposed sentences of 4 years having allowed a 2 year discount for the fast-track pleas of guilty. The sentences were then reduced under the Sentencing Legislation Amendment and Repeal Act to sentences of 2 years and 8 months.
13 The Judge accepted that the applicant was not in a position of trust and there was no element of coercion or reward. He accepted the applicant is a person of good character and that the risk of re-offending is low. The Judge noted the very substantial difference in ages between the applicant and the complainant and said:
(Page 6)
- "… On any view of the matter, that you must have appreciated that you were in trouble, even accepting what the complainant said that she was 14 years of age."
14 Although the Judge considered suspending the sentence he concluded that the sentence should not be suspended but served immediately.
The relevant legal principles
15 In Dempsey v The Queen, unreported, CCA SCt of WA; Library No 960059; 9 February 1996, Murray J formulated a list of matters which are relevant to take into account in imposing a sentence in respect of sexual offences against children. That formulation has been approved and set out in subsequent decisions of this Court. I do not repeat them but adopt them.
16 A further outline of the principles, although particularly in relation to intra-famial sexual abuse can be found in R v Chilvers [2003] WASCA 87.
17 All are important but the following are particularly relevant to this appeal:
• There is no tariff for sexual offences.
• Disparity in age can be an aggravating factor.
• The dominant sentencing considerations are punishment and general deterrence.
• Mitigating factors do not have as much weight as they might do in other cases.
• Exceptional circumstances must be shown to justify a sentence other than immediate imprisonment.
• The decision to suspend a sentence depends on the consideration of all factors relevant to the offender, whether aggravating or mitigating, including the objective features of the offence.
18 In the past 15 years there have been many appeals against sentences imposed in respect of child sexual abuse. The objective features of the offences vary considerably as do the personal attributes of the offenders. In few other areas of criminal conduct has a tariff proved so elusive.
19 It seems to me, with respect, that most of the judgments in those appeals essentially involve consideration of the same factors set out by
(Page 7)
- Murray J in Dempsey. Those features also guide judges in the trial courts when they sentence offenders. It is particularly difficult to undertake a comparison of sentencing dispositions for two reasons. First, there are the factual differences as to offence and offender to which I have just referred. Secondly, sentencing is an exercise in judicial discretion. That discretion must be recognised and given full effect. This State has so far eschewed anything in the nature of a sentencing matrix or rigid guidelines. Judges are entrusted to exercise their discretion in accordance with the law. The inevitable consequence is that there will be a variation in sentencing dispositions even in respect of cases which appear to have some similarities. It is in recognition of this entrusted discretion that the High Court reminded appellate courts of the need to search for error in the exercise of the sentencing discretion: Lowndes v The Queen (1999) 195 CLR 665. A difference of view as to the proper sentence is not enough.
20 Decided cases at the appellate level are important to establish the principles of sentencing and as illustrations of sentencing error on occasions. Of course, a sentencing error may also become manifest in the result. Appellate judgments on sentences for sexual offences are much less useful in establishing any form of tariff or of providing an individual comparison by which the sentence under appeal might be measured. Usually the most that can be discerned is that a sentence does or does not fall within the range of sentences commonly imposed. If a sentence falls outside the range, attention is invited as to whether there are any circumstances which put it beyond the range although a sentence beyond the range is not, of itself, necessarily indicative of manifest error.
21 The submissions on behalf of the applicant in the trial Court, and in this Court, stressed the case of Marris v The Queen [2003] WASCA 171 as providing an equivalence to the position of the applicant.
22 I do not consider that this approach is correct. Rather I consider that a sentencing court should have regard to the general matters set out by Murray J in Dempsey, supplemented by other cases, and then exercise a judicial discretion in light of the particular circumstances to select a sentencing option which, in the Judge's opinion, most nearly meets the requirements of the Sentencing Act and reflects the various principles and objectives of sentence.
23 In addition to the difficulty in comparing the result in each case in inferring error, there are other problems with using Marris as a guideline.
(Page 8)
24 In order to understand Marris one must first consider R v Avery [2002] WASCA 136. Avery was a prosecution appeal against a suspended sentence imposed upon the respondent following his plea of guilty to an indictment containing 16 counts of sexual offences. The complainant was a girl of 13 and the respondent was 20. The two had made contact through the internet and there was an element of grooming in the respondent's action. There were three different episodes of increasing seriousness. The activities were carried out without any force or coercion and she was sexually naïve and a virgin so that the offences contributed to her corruption. The respondent was in every respect a person of good character without previous convictions. The Court (Wallwork, Murray and McKechnie JJ) allowed the appeal, holding that the trial Judge had failed to mark the seriousness of the case with a sufficiently severe set of sentences proportionate to the criminality involved. The sentence was modified to bear the least severity in recognition of the facts which arise on prosecution appeals.
25 It is against the background of Avery that Marris arose. In Marris the complainant, then aged 20, pleaded guilty to a series of offences against a 13 year old girl in circumstances of consent, or at least acquiescence, with no coercion. The applicant had no prior record and very favourable references. A clinical psychologist's report assessed him at being at low risk of re-offending although he was assessed as somewhat immature and tending to relate to young people on a more equal footing than would be expected of a person of his age.
26 The trial Judge sentenced the applicant to a total sentence of 3 years' imprisonment with eligibility for parole. The Judge was expressly influenced by the decision in Avery. Wheeler J, in the course of her judgment held that the trial Judge had erred in failing to suspend the sentence (Murray and Templeman JJ agreeing), noting at [15]:
"…there was not that element of 'grooming' behaviour which was present in Avery. Rather, there was what appears to have been a purely opportunistic offending over a very short space of time, and lacking, so far as one can discern, any element of real premeditation. The sexual encounter which occurred is undoubtedly one which the complainant regrets, and it is one which the applicant accepts should not have occurred. However, the element of 'abuse' which was present in Avery, appears to me to be wholly absent in this case."
27 Her Honour noted the matters personal to which I have referred.
(Page 9)
28 The error which Wheeler J identified is that:
"…the learned sentencing Judge was in error in regarding this case as being so close in its relevant circumstances to that of Avery as to call for a sentence of approximately the same magnitude."
29 It appeared to Wheeler J that, while recognising the offence itself as a serious one, the case could be regarded as among the least serious of its kind and as one in which the circumstances of the offender were very good. In the course of her judgment, Wheeler J made reference to the matters outlined in Dempsey.
30 Marris does not lay down any particular principle of sentencing in favour of suspending a sentence for less serious sexual offences. Rather, it is a correction by the Court of Appeal of an error of principle based on a misunderstanding of the effect of Avery.
31 I return to the present case. True it is that the offending could be regarded here as opportunistic over a short space of time, lacking premeditation. In that respect the facts resemble Marris. The Judge distinguished Marris by noting the far greater disparity of age. In my opinion, he was right to do so. Consent and coercion are all relevant circumstances but it must be remembered that the purpose of making this conduct an offence is the protection of children, sometimes against their own burgeoning sexual feelings. Although the complainant may have misled the applicant to some degree, as the Judge found, he was well aware that she was very young and she was in fact but 12.
Conclusion
32 The range of sentences normally imposed for sexual offences against children was set out in Woods v The Queen (1994) 14 WAR 341. Having regard to the range of sentences usually imposed in respect of sexual offences, I do not regard a total sentence of 4 years (before taking account of the transitional provisions) following a plea of guilty to the offences disclosed in the indictment as so far outside the normal range as to make the sentence manifestly excessive.
33 As to the suspension of the sentence, I am of opinion that that decision was a matter of judgment entrusted to the Judge. I am not persuaded that the Judge acted upon any wrong principle or a misunderstanding of any salient fact in reaching his conclusion, nor am I persuaded that the failure to suspend the sentence itself manifests error.
(Page 10)
- As a consequence, while I would grant leave to appeal I would dismiss the appeal.
34 SIMMONDS J: I have had the advantage of reading the draft judgment of his Honour McKechnie J in this matter. For the reasons he gives, I would join in the orders he proposes.
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