Lakay v The State of Western Australia
[2019] WASCA 46
•8 MARCH 2019
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: LAKAY -v- THE STATE OF WESTERN AUSTRALIA [2019] WASCA 46
CORAM: BUSS P
MITCHELL JA
PRITCHARD JA
HEARD: 19 FEBRUARY 2019
DELIVERED : 8 MARCH 2019
FILE NO/S: CACR 60 of 2018
BETWEEN: COURTNEY DONALD LAKAY
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram: DERRICK DCJ
File Number : IND 304 of 2016
Catchwords:
Criminal Law - Sentencing - Sexual penetration without consent - Penile penetration of the vagina of the sleeping complainant without her consent - Whether sentence of 3 years 9 months' immediate imprisonment imposed after trial was manifestly excessive
Legislation:
Criminal Code (WA), s 325
Result:
Appeal dismissed
Category: D
Representation:
Counsel:
| Appellant | : | Mr T F Percy QC & Ms A Blackburn |
| Respondent | : | Mr R G Wilson |
Solicitors:
| Appellant | : | DG Price & Co |
| Respondent | : | Director of Public Prosecutions (WA) |
Case(s) referred to in decision(s):
Alalyani v The State of Western Australia [2018] WASCA 44
Eravelly v The State of Western Australia [2018] WASCA 139
FST v The State of Western Australia [2011] WASCA 220
Mearns v The State of Western Australia [2009] WASCA 153
NPA v The State of Western Australia [2018] WASCA 131
R v Clark [2000] WASCA 229
R v Cleak [2004] WASCA 72
SJN v The State of Western Australia [2016] WASCA 215
The State of Western Australia v Vartolo [2015] WASCA 53
JUDGMENT OF THE COURT:
Summary
The appellant was convicted after trial of one count of sexually penetrating the complainant without her consent, contrary to s 325 of the Criminal Code (WA). The appellant committed the offence by penetrating the complainant's vagina with his penis while she was asleep. He was sentenced to 3 years 9 months' immediate imprisonment. The appellant now appeals against his sentence on the sole ground that it is manifestly excessive.
There is no merit in that ground of appeal. Leave to appeal should be refused and the appeal dismissed.
Circumstances of offending
The trial judge made the following unchallenged findings as to the circumstances of the appellant's offending.
At the time of the offence, the complainant was 24 years old and the appellant was 30 years old.[1]
[1] Trial ts 488.
On Saturday, 9 May 2015, the complainant had arranged to go out with one of her close friends, who it is convenient to refer to as M. They planned for the complainant to sleep at M's unit once the two women returned from their night out. At about 2.00 am on Sunday 10 May 2015, they attended a nightclub at the Burswood Casino complex to meet M's male friend, who it is convenient to refer to as S. S was with some of his male friends, including the appellant (who the complainant did not know).[2]
[2] Trial ts 488 - 489.
The appellant had been consuming alcohol throughout the afternoon and the evening, but was monitoring what he was drinking because he was playing in a football match on the Sunday afternoon.[3] The appellant's alcohol intake did not impact upon his ability to exercise appropriate judgment, or disinhibit him, at the time that he committed the offence.[4]
[3] Trial ts 353, 488.
[4] Trial ts 496 - 497.
After the two women arrived at the nightclub, the appellant, complainant, M and S spent time socialising and dancing together. They all had some more alcohol to drink while at the nightclub. The appellant and complainant got on well together, and were to some extent attracted to each other. While the appellant and complainant were dancing together, they kissed on two or three separate occasions. In the complainant's mind, however, the kisses were 'innocent in nature'.[5]
[5] Trial ts 489.
The four people returned to M's three bedroom unit at about 4.00 am on Sunday morning. One of the bedrooms was used by M, the second was used by M's flatmate and the third was a spare bedroom. The complainant planned to sleep in the spare bedroom. Shortly after they arrived back at the unit, the complainant went into the spare room and changed into the clothes in which she planned to sleep.[6]
[6] Trial ts 489 - 490.
The appellant, complainant, M and S spent about three-quarters of an hour in the kitchen of the unit eating, socialising and listening to music. At about 5.00 am, when everyone was getting tired, the decision was made to call it a night. By this time all four were, to varying extents, affected by alcohol. None of them were so drunk as to be unaware of their surroundings, or incapable of controlling their actions.[7]
[7] Trial ts 490.
After the decision was made to go to bed, the music was turned off and M made her way into her bedroom. The complainant started making her way down to the spare bedroom. At this time, the appellant and S were standing in the small hallway just near the doorway of M's bedroom. There had been no express discussion about where in the unit the appellant would sleep.[8]
[8] Trial ts 490.
As she was making her way to the spare bedroom, the complainant said to the appellant:
You can come and sleep in here, if you want.
She did not say anything else at that point. The complainant did not make this offer with any intention of engaging in any significant sexual intimacy with the appellant. Rather, she made the offer so that he would not have to sleep on the couch in the lounge room. The appellant accepted the complainant's offer and followed her into the spare bedroom.[9]
[9] Trial ts 490.
The bed in the spare bedroom was a double bed. One side of the bed was pushed up against a wall of the room. Once in the room, the complainant lay on the side of the bed that was away from the wall. She got into the bed, under the quilt and sheet. She was wearing her underpants, leggings, a singlet and a hoodie.[10]
[10] Trial ts 491.
The appellant got onto the side of the bed closest to the wall, from the bottom of the bed. He removed his shoes, but otherwise also remained fully clothed. Before they went to sleep, the appellant kissed the complainant one or two times. She did not resist the appellant kissing her. No sexual touching accompanied the kissing.[11]
[11] Trial ts 491.
After the appellant had kissed the complainant one or two times, she backed away from him, and lifted her head up so that he could remove his arm from under her neck. This was a clear indication given by the complainant that she did not intend for things to go any further.[12]
[12] Trial ts 491.
The appellant and complainant both fell asleep. At about 8.00 am that morning, the appellant woke up. The complainant was still asleep. She was still laying on her right-hand side facing the wall. After waking up, the appellant got out of the bed and made his way behind the complainant. She was still fully clothed and was still, to the appellant's knowledge, asleep.[13]
[13] Trial ts 491.
While she was asleep, and without waking her, the appellant pulled the complainant's leggings and underpants down to below her bottom. He also lowered his own pants. He then got into some sort of semi‑crouch position behind the complainant, inserted his penis into her vagina from behind, and commenced to have unprotected sexual intercourse with her.[14]
[14] Trial ts 491.
At some point after the appellant began to sexually penetrate the complainant, she woke up to feel the appellant behind her with his penis inside her vagina. She opened her eyes a couple of times, but then closed them. She was shocked by what was occurring. She did not know how to react.[15]
[15] Trial ts 492.
The appellant continued to sexually penetrate the complainant for about one and a half to two minutes after she had woken up and realised what he was doing. The appellant then withdrew his penis from the complainant's vagina, and ejaculated between her legs.[16]
[16] Trial ts 492.
After ejaculating, the appellant moved away from the complainant, walked around the bottom of the bed, got back onto the bed, and laid back down next to her. The complainant remained lying in the bed in the same position for about a minute. She kept her eyes closed. She then turned onto her back, pulled her leggings and underpants up, grabbed her phone off the bedside table, and left the room. Neither the complainant nor appellant said anything at this time.[17]
[17] Trial ts 492.
Once the complainant left the spare bedroom, she went into the kitchen/living area, and sent some texts to M, asking her to come out of her room so that they could speak. The complainant told M what had happened. Eventually, the appellant and S were driven home. There was no discussion between the appellant and complainant about what had occurred at this time, although on 15 May 2015 he sent her a text message apologising to her. The next day, the complainant reported the matter to police.[18]
[18] Trial ts 492 - 494.
The trial judge noted that the appellant's defence at trial was that, although he penetrated the complainant's vagina with his penis, it involved consensual sexual intercourse. It was also put that, even if the sexual penetration did not occur consensually, the appellant honestly and reasonably, but mistakenly, believed that the complainant was consenting to the appellant having intercourse with her.[19]
[19] Trial ts 494.
The trial judge found that the appellant's account of events as to what occurred in the bedroom was, in all respects, untruthful. The trial judge was satisfied that the appellant did not, at the time that he penetrated the complainant's vagina with his penis, honestly believe that she was consenting to him having sexual intercourse with her. The trial judge found that the complainant had never said anything, or done anything, to indicate that she wanted to have sexual intercourse with the appellant. She was asleep at the time that the appellant offended against her. In these circumstances, the appellant could not possibly have held a belief that he had her consent.[20]
[20] Trial ts 494 - 495.
Victim impact
The trial judge made the following findings as to the impact of the appellant's offending on the complainant.[21]
[21] Trial ts 496.
The offending, unsurprisingly, had a significant adverse impact on the complainant's emotional wellbeing.
The complainant still feels very emotional about what happened. She often has feelings of anger, upset, worthlessness and being broken. She has trouble trusting people. She is far more cautious, both at work and in her everyday life. She has constant difficulty getting to sleep at night, because when she lies in bed all that she can think about is what the appellant did to her. She had difficulty starting a relationship because of the realisation that she needed to explain to her prospective partner what had happened to her. Her family, particularly her father, has also suffered as a result of their knowledge of what was done to her.[22]
[22] Trial ts 496.
Personal circumstances
The appellant was 33 years old at the date of sentence. He grew up with a loving and supportive family in Waroona. He did well at school, and had made unsuccessful attempts at university study. He had a good employment history and work ethic. At the time of sentence, he had been employed as a phone technician in a mobile phone repair shop, and ran his own business providing service and repairs for Apple products. He plans to undertake a business degree.[23]
[23] Trial ts 497 - 498.
At the time of sentence, the appellant was in a supportive relationship which had commenced after his offending.[24]
[24] Trial ts 498.
The appellant was actively involved in playing football and cricket, and had contributed to all aspects of the activities of his football club. He has a number of positive references. The trial judge found these references indicated that the appellant was generally of good character.[25] His Honour found that, prior to committing the offence, the appellant was a man of good character who had contributed well to the community.[26]
[25] Trial ts 498 - 500.
[26] Trial ts 500.
The appellant did not have any substance abuse or mental health issues. His only prior convictions were for traffic offences, and the trial judge treated the appellant as a first offender. The trial judge could not find that the appellant was remorseful, but found that he was at low risk of committing any further offences of a sexual nature or any other serious offences.[27]
[27] Trial ts 499 - 500.
Trial judge's approach
After making findings as to the circumstances of the appellant's offending, the trial judge characterised the offence as opportunistic, in the sense that it did not involve any careful planning on the appellant's part. However, the trial judge also recognised that the appellant made the deliberate decision to take advantage, for his own sexual gratification, of a woman who was in a vulnerable and defenceless position. Given that she was asleep, the complainant had no opportunity to attempt to prevent the appellant penetrating her.[28]
[28] Trial ts 495.
The trial judge also recognised that the appellant's penetration of the complainant was unprotected. Even though he withdrew his penis at the point of ejaculation, ejaculate still went onto the complainant between her legs and caused her to fear that she could become pregnant.[29]
[29] Trial ts 495 - 496.
The trial judge identified the breach of trust, which the complainant placed in the appellant in permitting him to sleep in the bed in the spare room with her, as an aggravating factor.[30]
[30] Trial ts 496.
The trial judge noted that the appellant did not inflict any non‑sexual violence upon the complainant. However, it was unnecessary for him to do so as the complainant was initially asleep and then too shocked to put up any substantial resistance.[31]
[31] Trial ts 496.
The trial judge then referred to the impact of the offending on the complainant and the appellant's personal circumstances, in terms summarised above. The trial judge's conclusion that the appellant's risk of reoffending was low led his Honour to observe that considerations of personal deterrence and protection of the public did not assume any particular significance when it came to determining the sentence to be imposed on the appellant. However, he recognised that general deterrence is an important sentencing consideration in a case of this type, and that he needed:[32]
to place weight on the need to impose a sentence that is capable of making clear to others in the community, particularly other young men in the community, that engaging in sexual activity with a woman while she is asleep and therefore incapable of resisting, in circumstances like those that existed in your case, is completely unacceptable.
[32] Trial ts 500.
The trial judge concluded that a sentence of immediate imprisonment was the only appropriate sentencing option in this case. The appellant does not challenge that conclusion on the appeal.[33] The trial judge then imposed a sentence of 3 years 9 months' immediate imprisonment, with eligibility for parole. The sentence was backdated to 25 February 2018 to take account of time spent in custody on remand.
[33] Appeal ts 2.
General principles
The general principles governing appeals contending that a sentence is manifestly excessive are well established:
(1)A ground of appeal which alleges that a sentence is manifestly excessive asserts an implied error. It is necessary, in determining whether a sentence is manifestly excessive, to examine it from the perspective of the maximum sentence prescribed by law for the relevant offence, the standards of sentencing customarily observed with respect to that offence, the place which the criminal conduct occupies on the scale of seriousness of offences of the kind in question, and the personal circumstances of the offender.
(2)The discretion conferred on sentencing judges is of fundamental importance and this Court may not substitute its opinion as to sentencing for that of the sentencing judge merely because it would have exercised the discretion in a different manner. The appellant must demonstrate that the sentence imposed is unreasonable or plainly unjust.
(3)The guidance afforded by comparable cases is flexible rather than rigid. The mere fact that a sentence is within the range of other sentences imposed for similar offending does not necessarily establish that there was an appropriate exercise of the sentencing discretion in the particular case. Similarly, the mere fact that a sentence is outside the range does not necessarily establish that the exercise of the sentencing discretion in the particular case miscarried.
(4)A sentencing range for comparable offences is merely one of the factors to be taken into account in deciding whether an individual sentence is manifestly excessive. A range of sentences customarily imposed is of significance for the purpose of ensuring broad consistency in the sentencing of offenders in broadly comparable cases. However, a sentencing range for comparable cases does not fix the range of a sound exercise of the sentencing discretion in a particular case.
(5)When an appellate court dismisses an appeal against sentence, and when it allows an appeal against sentence and resentences the offender, the court's decision on the sentencing outcome does not, of itself, fix the upper or lower limit of the range.
Disposition
The maximum penalty for the offence of sexual penetration without consent, contrary to s 325 of the Criminal Code, is 14 years' imprisonment. The sentence the trial judge imposed was only about 27% of the maximum available penalty.
The customary sentencing standards for offences against s 325 of the Criminal Code are well established. As this Court recently noted, in relation to sentences in serious cases of sexual penetration of adult victims, in NPA v The State of Western Australia:[34]
In a case of a single count of penile penetration of the vagina where there is a plea of not guilty, a term of imprisonment of 5 to 6 years would not be unusual. It is important to emphasise that this does not mean that a sentence outside that range is thereby manifestly excessive (or inadequate). The circumstances of offending vary widely. The available maximum sentence must not be overlooked. Sentences well beyond that range may be justified by the circumstances of the case. (citations omitted)
[34] NPA v The State of Western Australia [2018] WASCA 131 [51], cited in Eravelly v The State of Western Australia [2018] WASCA 139 [95].
The appellant refers to a number of cases in which offenders convicted of sexually penetrating an unconscious victim were sentenced after trial or late pleas of guilty to terms of between 2 years and 5 years 5 months' immediate imprisonment.[35] Those cases bear some common features and some distinguishing features with the present case. Taking account of all of the circumstances, the sentence imposed in the present case is broadly consistent with the range of sentences imposed in the cases to which the appellant has referred.
[35] R v Clark [2000] WASCA 229; R v Cleak [2004] WASCA 72; Mearns v The State of Western Australia [2009] WASCA 153; FST v The State of Western Australia [2011] WASCA 220; The State of Western Australia v Vartolo [2015] WASCA 53; SJN v The State of Western Australia [2016] WASCA 215 and Alalyani v The State of Western Australia [2018] WASCA 44.
The appellant refers in particular to the decision in Mearns, where this Court reduced a sentence of 3 years 4 months' immediate imprisonment to one of 2 years' immediate imprisonment. The sentence this Court imposed in Mearns was significantly lower than those imposed in other cases to which the appellant referred. There were a number of distinguishing features of that case. The offender in Mearns was only 18 years old. The offender and victim in that case had a previous consensual sexual relationship, a factor which the members of the Court regarded as significantly mitigatory. In a context where the offender's defence at trial was that he acted under an honest and reasonable but mistaken belief that the victim was consenting, there does not appear to be a finding that the offender did not hold such an honest belief. It does not appear from the reasons in that case that the impact of the offending on the victim was as severe as that of the appellant's offending against the complainant in the present case. The Court also treated a delay between the victim's complaint and the offender being interviewed by police as mitigatory.
The oral submissions of senior counsel for the appellant appeared to suggest that the sexual penetration of an unconscious complainant is a less serious category of offending against s 325 of the Criminal Code.[36] We do not accept that submission. The sexual penetration of an unconscious victim will ordinarily, as a matter of fact, have a very significant psychological impact on the victim. There is no reason to suppose that the impact on an unconscious victim, who is subsequently made aware of the offending, will ordinarily, as a matter of fact, be less than that experienced by a conscious victim. The fact that the offence occurs while the victim is completely helpless and unaware, so that the victim does not know exactly what occurred, may in some cases increase the traumatic impact of the offence. The complainant's difficulty in sleeping after the offence was committed against her illustrates the psychological impact such offending is apt to produce.
[36] Appeal ts 7, 9.
The violation of an unconscious person's body by non-consensual sexual penetration is not necessarily less serious than offending against victims who are in a less vulnerable position. In determining the seriousness of an offence, it is necessary to focus on the particular conduct of the offender and the impact which that conduct has had on the particular complainant.
At various points the appellant's counsel appeared to suggest that other cases, in particular Alalyani where a sentence of 4 years' immediate imprisonment was upheld on appeal, could be distinguished by reason of the different bases on which the offenders chose to defend the case at trial.[37] We do not accept that submission. The relevant comparison is between what the offenders have done, the impact it has had on the victims and matters personal to the offenders.
[37] See Appellant's Submissions, par 25; Appeal ts 2 - 4, 6, 9 - 10.
In the present case, the appellant's offending has had a very significant adverse impact on the complainant's psychological wellbeing. The appellant engaged in unprotected penile-vaginal penetration with a woman he had only just met, who he knew was asleep and who he knew had not consented to sexual intercourse. While the trial judge identified the appellant's prior good character and low risk of reoffending as mitigating factors, those factors were to be balanced against considerations of the need for appropriate punishment and general deterrence. Particularly in light of the absence of a plea of guilty and the absence of youth, it was open for the trial judge to impose a sentence of 3 years 9 months' immediate imprisonment in the exercise of his Honour's sentencing discretion.
It is not reasonably arguable that the sentence imposed in this case was manifestly excessive. Leave to appeal should be refused and the appeal dismissed.
Orders
For the above reasons, the following orders should be made in this appeal:
(1)Leave to appeal is refused on the sole ground of appeal.
(2)The appeal is dismissed.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
FP
Associate to the Honourable Justice Pritchard8 MARCH 2019
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