Ibbs v the Queen

[1987] HCA 46

HIGH COURT OF AUSTRALIA

Mason C.J., Wilson, Brennan, Toohey and Gaudron JJ.

IBBS v. THE QUEEN

(1987) 163 CLR 447

6 October 1987

Criminal Law (W.A.)

Criminal Law (W.A.)—Sexual penetration without consent—Maximum penalty prescribed—Sexual penetration defined as various categories of sexual acts—Whether maximum penalty appropriate for worst type of case falling within each category—Criminal Code (W.A.), ss. 324D, 324F.

Decision

MASON C.J., WILSON, BRENNAN, TOOHEY AND GAUDRON JJ. After a trial in the Supreme Court of Western Australia before Kennedy J. and a jury, the applicant was convicted of the offence of sexual penetration without consent. That offence is created by s.324D of the Criminal Code of Western Australia, one of the provisions of Ch.XXX1A of the Criminal Code which was inserted by the Acts Amendment (Sexual Assaults) Act 1985 (W.A.). Chapter XXXIA is headed "Sexual Assaults". The Act substantially altered the previous Code provisions relating to sexual offences. The offence of rape has been deleted from the Code, but the conduct which would have constituted rape is now proscribed by s.324D which reads:

" Any person who sexually penetrates another person without the consent of that person is guilty of a crime and is liable to imprisonment for 14 years."

The conduct proscribed by s.324D includes certain conduct which would not have constituted rape. Section 324F gives an extended meaning to the phrase "to sexually penetrate". It is defined to mean -

" (a) to penetrate the vagina of any person or the anus of any person with -

(i) any part of the body of another person; or

(ii) an object manipulated by another person,

except where the penetration is carried out for proper medical purposes;

(b) to manipulate any part of the body of another person so as to cause penetration of the vagina or anus of the offender by part of the other person's body;

(c) to introduce any part of the penis of a person into the mouth of another person;

(d) to engage in cunnilingus; or

(e) to continue sexual penetration as defined in paragraph (a), (b), (c) or (d)."

Section 324G defines "consent" to mean "a consent freely and voluntarily given". It is unnecessary now to consider the construction of that section. A maximum penalty of 14 years imprisonment is prescribed for the offence of sexual penetration without consent (described by the sidenote to s.324D as "Sexual assault"). Section 324E creates an offence of sexual penetration without consent in circumstances of aggravation (described by the sidenote to s.324E as "Aggravated sexual assault") for which a maximum penalty of 20 years imprisonment is prescribed.

2. The circumstances out of which the charge against the applicant arose were unusual. The complainant, a mother of four children, had been living with a man near the house occupied by the applicant and his wife, Katrina. Two of her children, both young, lived with her. The complainant was befriended by the wife and, when the man with whom the complainant had been living required her to leave their house, she and the two children went to live in Ibbs' house. The applicant was attracted to the complainant and Mrs Ibbs, at the applicant's request, asked her to have sexual intercourse with him. Prior to the night of 29 November 1986, the complainant twice had sexual intercourse with the applicant. On that night, the applicant again approached the complainant to have sexual intercourse. In evidence the complainant and the applicant agreed on the sequence of events that evening, though their evidence differed in some respects. After the applicant first effected penetration, the complainant objected that it was not right and that Katrina was her best friend. The applicant then withdrew and asked Mrs Ibbs to speak to the complainant, which she did. These events may have been repeated. Finally, after speaking with Mrs Ibbs, the complainant said: "Well, let's get it over with". The applicant again effected penetration. The complainant became upset during intercourse, saying "it's not right". Nevertheless, the applicant continued to ejaculation. The complainant tried to push him away, but the applicant said that that occurred "right at the last minute". The learned trial judge gave the jury directions which were appropriate to their consideration of guilt either by reason of the final act of actual penetration or by reason of the continuing of the intercourse. The jury retired for nearly five hours before seeking a redirection on two questions:

"1. If consent was given or assumed and the act began, then consent was withdrawn, at what point can consent be withdrawn? When is the act of intercourse terminated?

2. We wish to hear the transcript of both parties relevant to the last act of intercourse and particularly the reference to pushing on the chest. This includes questions to both parties by both the defence counsel and prosecution."

The jury ultimately returned a verdict of guilty.

3. In sentencing the applicant, Kennedy J. said:

" From the questions asked by the jury I proceed upon the basis that you are not criminally liable for the last act of initial penetration ... Your criminal responsibility results from the continuation of penetration either after she had withdrawn her consent or after any mistake on your part had ceased to be honest and reasonable. On the evidence I find it difficult to identify the period of the continuation after the critical moment. It is however enough to say that it was an appreciable time, perhaps up to 30 seconds, after she commenced to try to push you away from her.

There can be no doubt whatever as to the genuineness of the complainant's distress after
the event although I equally have no doubt that her distress resulted from a combination of factors, your conduct being the culmination of those factors. It really was an indication of her general despair at that time. She found herself in a situation where she had nowhere apparently to turn for help - certainly not to your wife whom she had regarded as a close friend. She had no other living accommodation available to her. She had a young daughter to care for having been thrown out of her previous home. She now found you taking every possible advantage of her weakened position for your own totally reprehensible self-gratification.

You continue to have the belief that by your standards you have done nothing wrong because
there was no threat or act of violence on your part, but that is misconceived. The new sexual assault legislation has brought about a very profound change in the law. It has adopted what seems to be a different test of consent. The other party's consent must be free and voluntary and it is now made quite clear that the continuation of penetration itself can constitute the major offence.

... I do not regard there having been present here any violence or threats of violence on your
part. You sought to attain your ends by another process."

And his Honour imposed the following sentence:

" Having regard to all the matters placed before me, and not having overlooked the period which you have spent in custody already, I have determined that you will be sentenced to a term of four years' imprisonment. You will serve a period of 18 months before becoming eligible for parole."

The sentence commenced to run on the date of its imposition, 22 April 1987.

4. An application to the Court of Criminal Appeal for leave to appeal against sentence was, by majority, dismissed (Burt C.J. and Smith J., Brinsden J. dissenting). In the course of his judgment Burt C.J. said:

" For the purposes of the offence now called 'sexual penetration without consent' the penetration can be achieved in a number of ways and however achieved 'to continue the sexual penetration' is in itself to 'sexually penetrate'. The offence carries a maximum sentence of 14 years imprisonment and as I observed in The Queen v. Ginder, 'it is apparent that the (Code as amended) ... creates one offence which embraces without distinction inter se all the identified kinds of penetration by one of another if achieved without consent' and that it should not be supposed that for the purposes of punishment 'one means of penetration is more heinous than another'. Specifically, to sentence upon the basis that under the law before the Code was amended the offence committed by the applicant was an indecent assault is simply to ignore the law as it now is."

In his judgment in Reg. v. Ginder (1987) 23 ACrimR 1, his Honour had said (at p 4) that in fixing the sentence in a particular case -

" ... it should not be supposed that one means of sexual penetration, divorced from the circumstances, is more heinous than another. To make that distinction would, I think, be to hark back to notions which have, by the reforming Act, been abandoned."

Smith J. cited this passage from Ginder in stating his reasons for refusing leave to appeal against sentence in the present case. It appears that the majority regarded the Chief Justice's judgment in Ginder as stating a principle which should govern the fixing of sentences for offences of sexual assault. Although neither that judgment nor the judgments in this case suggest that the particular facts of each case are to be disregarded, the judgments appear to adopt as a sentencing principle the proposition that, "divorced from the circumstances", each kind of sexual penetration as defined in s.324F is neither more nor less heinous than another. That proposition cannot be accepted. The maximum penalty prescribed for the offence of sexual assault is reserved for the worst type of case falling within s.324D: Reg. v. Tait and Bartley (1979) 46 FLR 386, at p 398; 24 ALR 473, at p 484; Bensegger v. The Queen (1979) WAR 65, at p 68. The maximum penalty is not prescribed as an appropriate penalty for the worst type of case falling within each of the respective categories of sexual penetration described in s.324F. The inclusion of several categories of sexual penetration within the offence described as sexual assault carries no implication that each category of sexual penetration is as heinous as another if done without consent. When an offence is defined to include any of several categories of conduct, the heinousness of the conduct in a particular case depends not on the statute defining the offence but on the facts of the case. In a case of sexual assault, a sentencing judge has to consider where the facts of the particular case lie in a spectrum at one end of which lies the worst type of sexual assault perpetrated by any act which constitutes sexual penetration as defined. As Dwyer C.J. said in Reynolds v. Wilkinson (1948) 51 WALR 17, at p 18:

" Crimes bearing the same general description have not equally evil content or characteristics, and offenders also differ in themselves."

5. The view which was expressed in the passage cited from Ginder and which was adopted by the majority of the Court of Criminal Appeal in this case attributes a different operation to ss.324D and 324F. Although this Court does not ordinarily grant special leave to appeal against a sentence merely because the sentence is said to be inadequate or excessive, this case comes within the exception stated in White v. The Queen (1962) 107 CLR 174, at p 176 - "a gross violation of the principles which ought to guide discretion in imposing sentences". Special leave to appeal should therefore be granted.

6. The sentence in the present case may have been appropriate if the applicant had been sentenced for an offence consisting in the initial penetration without consent, but it appears manifestly excessive when the applicant was sentenced on the footing that the complainant had consented or was honestly and reasonably believed by the applicant to have consented to the act of penetration by which intercourse was commenced. An appropriate sentence was thought by Brinsden J. to be six months imprisonment. Rather than remitting the matter to the Court of Criminal Appeal for reconsideration, adoption of the sentence proposed by Brinsden J. would seem to be, in all the circumstances of the case, a preferable means of disposing of the matter.

7. Special leave to appeal is granted, the appeal allowed, the judgment of the Court of Criminal Appeal is set aside, the sentence imposed by Kennedy J. is quashed and in lieu thereof a sentence of six months imprisonment is imposed, commencing on 22 April 1987.

Orders

Applicant for special leave to appeal granted.

Appeal allowed. Order that the order of the Court of Criminal Appeal of Western Australia dated 16 July 1987 be set aside in so far as it refused leave to appeal against sentence and in lieu thereof order that leave to appeal against sentence be granted, the appeal to that Court be allowed, the sentence imposed by Kennedy J. on 22 April 1987 be quashed and in lieu thereof impose a sentence of six months imprisonment commencing 22 April 1987.