Jones v The Queen
[2003] WASCA 255
•24 OCTOBER 2003
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : COURT OF CRIMINAL APPEAL
CITATION: JONES -v- THE QUEEN [2003] WASCA 255
CORAM: PARKER J
TEMPLEMAN J
MILLER J
HEARD: 8 OCTOBER 2003
DELIVERED : 24 OCTOBER 2003
FILE NO/S: CCA 59 of 2003
BETWEEN: RUSSELL GORDON JONES
Appellant
AND
THE QUEEN
Respondent
Catchwords:
Criminal law - Sentence - Appeal - Sexual offence - Sentence of 3-1/2 years' imprisonment - Isolated act - Relevance of good character and rehabilitation - Appellant in position of power in relation to complainant
Legislation:
Nil
Result:
Leave to appeal granted
Appeal dismissed
Category: B
Representation:
Counsel:
Appellant: Mr D Dann
Respondent: Mr B Fiannaca
Solicitors:
Appellant: Balmer & Associates
Respondent: State Director of Public Prosecutions
Case(s) referred to in judgment(s):
"D" v The Queen [2000] WASCA 137
Cameron v The Queen (2002) 209 CLR 339
House v The King (1936) 55 CLR 499
Ibbs v The Queen (1987) 163 CLR 447. ,
Lowndes v The Queen (1999) 195 CLR 665
R v "EPR" [2001] WASCA 214
R v Quartermaine [2000] WASCA 341
Ryan v The Queen (2001) 206 CLR 267
Trescuri v The Queen [1999] WASCA 172
Woods v R (1994) 14 WAR 341
Case(s) also cited:
Nil
PARKER J: The circumstances of this offence of sexual penetration involved a victim who was a young man aged 17 years. He was hoping to commence work the following morning with a firm of which the appellant, aged 36 years, was the manager in this State. By arrangement with the appellant, he was to spend the night at the appellant's residence and travel with the appellant to the workplace the next morning.
Thus the victim was vulnerable in this situation, both because of his age and because of the potential employment relationship. The facts demonstrate that the appellant took advantage of that vulnerability.
While there are a number of factors which tell in mitigation, the nature and circumstances of this offence remain serious. It is not shown that the sentencing Judge erred in principle or fact or failed to weigh adequately any material consideration.
I agree with Miller J, for the reasons he gives, that the sentence imposed is within the appropriate range and that no basis has been demonstrated on which this Court might properly interfere with the exercise of sentencing discretion in this case.
While leave to appeal should be granted, the appeal should be dismissed.
TEMPLEMAN J: I have had the advantage of reading in draft the reasons to be published by Miller J, in which his Honour sets out comprehensively the facts relating to this application for leave to appeal against sentence. I agree with those reasons and there is nothing I wish to add.
MILLER J: This is an application for leave to appeal a sentence of 3‑1/2 years' imprisonment imposed upon the appellant in the District Court at Perth on 1 April 2003, for the offence of sexual penetration without consent.
The appellant was granted an extension of time within which to file his application for leave to appeal and was also granted leave to amend the grounds of appeal.
The appellant pleaded not guilty to an indictment in the District Court alleging that on 10 September 2001 at Thornlie he had sexually
penetrated "P" without his consent by engaging in fellatio. The trial of the appellant occupied two days, being 31 March and 1 April 2003 and the appellant was convicted by the jury of the charge he faced. After hearing submissions in relation to sentence, Jenkins DCJ imposed the sentence of 3‑1/2 years' imprisonment with eligibility for parole, the sentence to date from the day of its pronouncement.
Grounds of appeal
There is a single ground upon which the applicant seeks leave to appeal. It is that the sentence imposed by the learned trial Judge was manifestly excessive. A number of particulars are then given. They are numbered in separate grounds of appeal, but in fact constitute the particulars of the one ground. Including the amendments allowed at the hearing of the appeal and allowing for the abandonment of two of the particulars, they now read:
"2.The learned sentencing judge gave no or insufficient weight to the fact that the offence was not accompanied by violence, threatening behaviour, physical discomfort or injury.
3.The learned sentencing judge gave no or insufficient weight to the fact that the applicant desisted when told to do so by the complainant.
4.…
5.The learned sentencing judge gave no or insufficient weight to the fact that the applicant was apologetic shortly after the commission of the offence.
6.…
7.The learned sentencing judge gave no or insufficient weight to the fact that in the lead up to the offence the complainant had, albeit reluctantly, allowed the applicant to caress his legs, at times near his groin, on approximately 10 occasions each of approximately 2 minutes' duration.
8.The learned sentencing judge gave excessive and undue weight to the 'position of power' that the applicant was said to have had in relation to the complainant.
9.The learned trial judge failed to give any or adequate consideration to the issue of rehabilitation.
10.The learned trial judge failed to give adequate consideration to the issue of prior good character."
Sentencing remarks
The learned trial Judge gave extensive reasons in the course of sentencing the appellant. She first found the facts. They were that on 9 September 2001 the complainant went to the home of the appellant with the intention of staying there overnight so that he could accompany the appellant to a job which the appellant had offered to him. The job was to have begun on the morning of 10 September, provided it was found on that day that the complainant was suited to the tasks involved.
The complainant was at the relevant time a 17‑year‑old youth. He was described by the learned trial Judge as an unsophisticated person. The appellant was at the relevant time 36 years of age, but within two months of his 37th birthday. He was described by the learned trial Judge as being approximately 20 years older than the complainant and in her view, he took advantage of the age difference between the complainant and himself to commit the offence in question.
On the evening of 9 September the appellant gave the complainant four or five cans of beer during the course of the evening and then made physical advances to him by sitting next to him on the floor whilst they were watching television. He there touched the complainant on the thigh and the inner thigh, causing the complainant to move away. The complainant was found by the learned trial Judge to have sought to persuade the appellant to desist from what he was doing by lying on the lounge with the intention of falling asleep and thus getting away from what was happening. This conclusion the learned trial Judge was satisfied about beyond reasonable doubt.
The complainant fell asleep and whilst asleep, the appellant removed his clothing and committed fellatio on him. The complainant awoke and the appellant immediately desisted what he had been doing.
The learned trial Judge found that the appellant may have been hopeful that somehow or other the complainant would become a consenting partner to sexual activity. However, she was satisfied beyond reasonable doubt that at no time did the complainant consent to any of the sexual behaviour that occurred and more particularly so in relation to the act of fellatio when he was asleep. The verdict of the jury indicated that they were satisfied beyond reasonable doubt that the complainant had not consented to the act of fellatio and the appellant could not have held an honest and reasonable, but mistaken, belief that he did.
The learned trial Judge found some factors which favoured the appellant. She appreciated that he did not use violence or threats and he desisted when the complainant awoke and made no attempt to persuade him to further engage in the conduct.
However, the learned trial Judge concluded that on the night in question the complainant was in a vulnerable position because he was in the appellant's home late at night with nowhere to go, no transport to leave the house, and a long way from the protection of his mother and stepfather. This being so, she considered that there was an abuse by the appellant of his "position of power" in relation to the complainant. She found that he was willing to use that position in an attempt to seduce the complainant and when that had not worked, was prepared to take advantage of the sleeping state of the complainant to commit the offence in question.
The learned trial Judge turned to the personal circumstances of the appellant. She noted that he was then 38 years of age, single and from an apparently happy and stable family background. She noted his stable employment history and also a number of character references in which people who knew the appellant testified to his being a caring and considerate person. I have looked at those character references, and they are certainly favourable to the appellant, but none appear to have been written with the knowledge of the fact that the appellant was facing trial for a sexual offence.
However, the learned trial Judge clearly took into account the fact that the appellant was a diligent worker, had no prior criminal record and was a person of good character. For these reasons she considered he should receive mitigation in the sentencing process.
When the learned trial Judge turned to principles relevant to sentencing, she pointed out that there is no tariff for sexual offences. She made reference to the fact that for the offence of sexual penetration of a woman without consent (penile penetration), a sentence of 6 years' imprisonment can be expected but pointed out that this was a much more serious offence than the offence committed by the appellant. She did, however, take account of authorities indicating that any sexual penetration of another person is a serious offence. She stressed that because there was an abuse of power in this case and the exploitation of a young person in a vulnerable position, those factors made the offence serious.
Taking all factors into account, and despite the prior good character of the appellant, the learned trial Judge considered a sentence of imprisonment to be the only appropriate penalty. Her Honour gave careful consideration to the question whether a sentence could be suspended, but reached the view that it was too serious for suspension. At the hearing of the appeal, counsel for the appellant did not suggest that suspension of the sentence was the only disposition of the matter which was open and, in my view, rightly so. It was not a case in which a suspended sentence was appropriate, given the seriousness of the offence.
Combining all of these factors the learned trial Judge came to the view that a sentence of 3‑1/2 years' imprisonment was the appropriate sentence with eligibility for parole.
The grounds of appeal
The application for leave to appeal proceeded on the basis that although the learned trial Judge had made reference to the various matters the subject of the particulars (with the exception of the issue of rehabilitation), there had either been insufficient weight given to those factors or (in the case of reference to the position of power) over emphasis.
It is convenient to deal first with ground 9, being the contention that the learned trial Judge failed to give any or adequate consideration to the issue of rehabilitation. In this respect, counsel rightly pointed out that rehabilitation of the offender is generally an important aspect of the sentencing process. In the present case, however, counsel for the appellant had urged upon the learned trial Judge when making submissions on sentence, that the appellant was a person unlikely to offend again. His submission was in these terms:
"It's my respectful submission, your Honour, that given that stability of accommodation, occupation and income and by virtue of the lack of prior criminal history, a history which hasn't seen itself being expended upon since the offence, that he is unlikely to be somebody who will offend again and by virtue of the fact that this is his first appearance in a criminal court, it's likely to have a salutary effect upon him and that the objective of specific deterrence will be no doubt achieved."
I read the submission of counsel for the appellant to be one that the appellant was not in need of rehabilitation, but, to the contrary, had learned his lesson from the commission of one offence which was out of character and unlikely to ever be repeated. In these circumstances, I can see no basis upon which the learned trial Judge should have dealt with the question of rehabilitation in the course of her sentencing comments. I can see no substance in this particular of appeal.
Grounds 2, 3, 5, and 10 are all matters in relation to which it is contended that the learned trial Judge made reference but to which she gave insufficient weight.
There is no doubt that the learned trial Judge did make specific reference to each of these matters. In particular, her Honour noted that no violence or threats had been used; the appellant had desisted when the complainant awoke and had not tried to continue the offence in any way; and (by inference) the appellant had been (by his behaviour) apologetic after the offence had occurred. Further, specific account was taken of the prior good character of the appellant, both by reason of his lack of any prior criminal record and because of the excellent character references he had produced.
In relation to ground 7, which asserts that the complainant reluctantly allowed the applicant to touch him on a number of occasions prior to the offence in question, the learned trial Judge made findings against the appellant. She was satisfied beyond reasonable doubt that the complainant had rejected advances made by the appellant and it was her view that the appellant may have been hopeful that in some way the complainant could be brought around to his way of thinking, but was in fact clearly a non‑consenting party.
Counsel for the appellant placed considerable reliance upon the cross‑examination of the complainant on this point, making reference to the following passage in the transcript:
"When he was caressing your leg, did you think that he disliked you? --- No, I just - I didn't think anything.
Did you think that this was somebody who was obviously going to be a great bloke that 'I'll play footy with' or something? --- Yes, same as a friend.
Yes, and were you in not saying anything to him, intending to convey to him, intending him to believe that you were consenting to it happening? In other words, were you trying to give him the impression you were on for it? --- No.
All right, well, that's the third time. So then the minutes go by, I don't 5 or 10 minutes have elapsed and then the next occasion he reaches over, right? On this occasion he's done exactly the same thing. He's rubbing his hand up and down your inner thigh on one of your legs. Again, just moving it up and down, caressing your leg? --- Yeah.
Fondling your leg. Clearly demonstrating, you thought, an interest in you sexually? --- Most probably, yeah.
So you wouldn't dispute it if he was to maintain that he thought you were agreeing to sexual activity, would you? --- In his eyes he's probably thought so.
I'm sorry? --- In his eyes he probably thought so.
Why would you agree that in his eyes he probably though that you were agreeing to sexual activity? --- Because I didn't move my leg straightaway."
Despite the complainant's concessions about what the appellant may have thought, the learned trial Judge was in no doubt that the complainant had made clear to the appellant that he was not interested in any sexual contact. No ground of appeal challenges this conclusion and in my view it was clearly open to the learned trial Judge, on all the facts, to reach the conclusion she did about that issue. It cannot therefore be suggested, in my view, that the learned trial Judge gave no or insufficient weight to some form of reluctant acquiescence on the part of the complainant to what occurred.
Ground 8 contends that the learned trial Judge gave excessive and undue weight to what she termed the appellant's position of power. However, the conclusion reached by the learned trial Judge in this respect was entirely open to her. The appellant was 20 years older than the complainant and did have him in a situation in which he was vulnerable. The learned trial Judge was entitled to conclude that that involved an abuse of a position of power which aggravated the circumstances of the case.
General considerations
It is rightly submitted by counsel for the appellant that the offence was a very serious one and the learned trial Judge was required to assess the level of criminality involved in the appellant's conduct. This is made clear in R v "EPR" [2001] WASCA 214, a case dealing with intrafamilial sexual assault. In that case the Court (at [19] ‑ [21]) said in relation to intrafamilial sexual assaults:
"19 Prima facie, it was not a case in which anything other than a sentence of immediate imprisonment was appropriate. This is for all of the reasons that have so often been stated by this Court regarding offending of this type. As Anderson J said in Trescuri v The Queen [1999] WASCA 172 at par 21:
'Cases of intra-family sexual assaults on young children generally attract heavy sentences. The reasons for this have been stated in this Court many times. Sexual assaults by an adult upon young children within the family environment involving the taking advantage of a position of trust and authority is very serious and the law demands the protection of young children from it. The dominant sentencing considerations are punishment and general and personal deterrence, as well as retribution for the victims who are invariably grossly traumatised. The maximum penalties, to which reference has already been made, disclose a broad policy decision by the legislature which the courts are bound to give effect to - R v Wozencroft, unreported; CCA SCt of WA; Library No 6606; 25 February 1987; Johnston v R, unreported; CCA SCt of WA; Library No 960153; 22 March 1996.'
20Reference may also be made to the report of the Wolfenden Committee on Homosexual Offences and Prostitution (Cmnd 247 (1957)) in which the function of the criminal law in the field of sexual offences was defined as follows:
'To preserve public order and decency, to protect the citizen from what is offensive and injurious and to provide sufficient safeguards against exploitation and corruption of others, particularly those who are specially vulnerable because they are young, weak in body or mind, inexperienced or in a state of special physical, official or economic dependence.'
21This reference is taken from the judgment of the Court of Appeal Criminal Division in Attorney-General's Reference (No 1 of 1989) [1989] 3 All ER 571 per Lord Lane CJ, Rose J and Sir Bernard Caulfield at 573."
In my view, these observations are equally applicable to sexual assault of the type under consideration in this appeal. Although it was clearly not an intrafamilial sexual assault, it was a case in which a much older person had prevailed upon a young teenage youth and committed a very serious sexual assault upon him.
In "D" v The Queen [2000] WASCA 137 I delivered a judgment with which Pidgeon and Wallwork JJ agreed, where I made reference (at [9]) to the numerous attempts that have been made in the reported cases to rationalise the approach of the Court to cases of intrafamilial sexual assault, pointing out that in Woods v R (1994) 14 WAR 341, Anderson J (at 354 ‑ 359) had reviewed a number of cases in which sentences of 6 years or more had been imposed in cases of penetration in one form or another. These are, of course, cases of intrafamilial sexual assault which are arguably more serious than the sexual assault for which the appellant is responsible in this case. However, the fact remains that whether these cases be intrafamilial sexual assaults or sexual assaults by older persons on younger complainants (as here), what Anderson J said in Trescuri v The Queen [1999] WASCA 172 at [29] is generally applicable:
"The plain fact of the matter is that good antecedents, contrition, the taking of steps towards rehabilitation, the fact that the offending may have been contributed to by abuse of alcohol and drugs and matters of that kind cannot be weighty mitigatory factors in a case of prolonged sexual molestation by a mature adult of children entrusted to his care."
In R v Quartermaine [2000] WASCA 341, Wheeler J (at [16]) made the following observations about the general range of sentences commonly imposed for a single act of penile penetration of the vagina:
"16 The maximum penalty prescribed for the offence of sexual penetration without consent in the absence of circumstances of aggravation is 14 years' imprisonment. While there is no 'tariff' for offences of sexual penetration without consent, and the cases show that sentences imposed vary substantially, the general range of sentences commonly imposed for a single act of penetration of the vagina with the penis where the victim is over the age of 16, remains of the order of about 6 years: R v Podirsky (1989) 43 A Crim R 404 at 411 per Malcolm CJ, Nelson v The Queen, unreported; CCA SCt of WA; Library No 950376; 1 June 1995 at 9 per Malcolm CJ. A sentence of this kind is generally at the lower end of the scale for offences of this type, and is often the sentence which is imposed after taking into account mitigating factors: Brockman v The Queen, unreported; CCA SCt of WA; Library No 970044; 4 February 1997 at 8 per Malcolm CJ. I have noted in R v Clark [2000] WASCA 229 factors which will be relevant to an evaluation of the seriousness of the offence (at [12]), and it may be that an evaluation of these factors leads to the view that the appropriate sentence in any case is well in excess of 6 years, while on other and generally less common occasions, it may be that the sentence called for will be less (perhaps even substantially less)."
It is to be noted that in the present case the learned trial Judge made reference to a sentence of 6 years' imprisonment, being commonly imposed in cases of penile penetration of the vagina, such reference clearly being to R v Podirsky. However, as I pointed out, the learned trial Judge considered the offence in question here to have been a less serious one than penile penetration of the vagina. In this respect, her Honour was clearly correct and the sentence imposed reflects that fact.
Counsel for the appellant placed considerable reliance upon Ryan v The Queen (2001) 206 CLR 267 where the importance of evidence of prior good character was stressed. In that case, McHugh J at [23] stressed the importance of the previous good character of the offender in the sentencing process and the requirement for a trial Judge to determine the weight to be given to that mitigating factor. I can see nothing to suggest that the learned trial Judge in this case overlooked anything in that regard.
Counsel for the appellant also relied upon Ibbs v The Queen (1987) 163 CLR 447 where Mason CJ, Wilson, Brennan, Toohey and Gaudron JJ made it clear that a sentencing Judge is required to consider where the facts of a particular case lie in a spectrum at one end of which lies the worst type of sexual assault. Their Honours said (at 452):
"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 CJ said in Reynolds v Wilkinson:
'Crimes bearing the same general description have not equally evil content or characteristics, and offenders also differ in themselves.' "
In the present case the learned trial Judge was conscious of the need to place the appellant's offence in the hierarchy of sexual assaults and she clearly appreciated that the offence was less serious than the offence of vaginal penetration by the penis. Indeed, the sentence pronounced suggests that the learned trial Judge put the circumstances of the offence towards the lower end of the scale of seriousness.
Conclusion
The appellant committed a serious sexual assault upon the complainant. It was the offence of sexual penetration without consent for which the maximum penalty to which the appellant was liable was imprisonment for 14 years.
The appellant pleaded not guilty as he was fully entitled to do. This meant that the complainant was compelled to testify against the appellant in open court and (as the appellant's counsel rightly concedes) no mitigating factors can be afforded the appellant in this particular regard. Had he pleaded guilty, the appellant would have had in his favour a major mitigating circumstance. As Gaudron, Gummow and Callinan JJ pointed out in Cameron v The Queen (2002) 209 CLR 339 at [11] ‑ [12]:
"11It is well established that the fact that an accused person has pleaded guilty is a matter properly to be taken into account in mitigation of his or her sentence. In Siganto v The Queen it was said:
'a plea of guilty is ordinarily a matter to be taken into account in mitigation; first, because it is usually evidence of some remorse on the part of the offender, and second, on the pragmatic ground that the community is spared the expense of a contested trial. The extent of the mitigation may vary depending on the circumstances of the case.'
It should at once be noted that remorse is not necessarily the only subjective matter revealed by a plea of guilty. The plea may also indicate acceptance of responsibility and a willingness to facilitate the course of justice.
22Although a plea of guilty may be taken into account in mitigation, a convicted person may not be penalised for having insisted on his or her right to trial. The distinction between allowing a reduction for a plea of guilty and not penalising a convicted person for not pleading guilty is not without its subtleties, but it is, nonetheless, a real distinction, albeit one the rationale for which may need some refinement in expression if the distinction is to be seen as non‑discriminatory."
Counsel for the respondent contended that given the fact that the appellant had pleaded not guilty, a sentence of 3‑1/2 years' imprisonment was at the lower end of the range of sentences that could have been imposed. With this submission I agree. It was a sentence which, in my view, took into account all relevant factors, including in particular those factors personal to the appellant which told in his favour.
I would only add that the particular sentence was an exercise of discretion on the part of the learned trial Judge, as to which the statement of Gleeson CJ, Gaudron, McHugh, Gummow, Kirby, Hayne and Callinan JJ in Lowndes v The Queen (1999) 195 CLR 665 at [15] is entirely applicable:
"The principles according to which an appellate court may interfere with such a discretionary judgment by a sentencing judge are well established. In their application to a Crown appeal against sentence they were summarised in R v Allpass and R v Clarke. Of particular importance in the present case is the principle that a court of criminal appeal may not substitute its own opinion for that of the sentencing judge merely because the appellate court would have exercised its discretion in a manner different from the manner in which the sentencing judge exercised his or her discretion. This is basic. The discretion which the law commits to sentencing judges is of vital importance in the administration of our system of criminal justice."
I can see no basis upon which the sentence imposed by the learned trial Judge should be varied and for the reasons I have given I would allow leave to appeal, but dismiss the appellant's appeal.
10
1