Long v The State of Western Australia - [2022] WASCA 101

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT :   THE COURT OF APPEAL (WA)
CITATION:   LONG -v- THE STATE OF WESTERN AUSTRALIA [2022] WASCA 101
CORAM:   BUSS P
MAZZA JA
MITCHELL JA

HEARD:   21 MARCH 2022
DELIVERED          :   8 AUGUST 2022
FILE NO/S:   CACR 65 of 2021
BETWEEN:   ZANE STEPHEN LONG
Appellant

AND

THE STATE OF WESTERN AUSTRALIA
Respondent

ON APPEAL FROM:
Jurisdiction              :   DISTRICT COURT OF WESTERN AUSTRALIA
Coram:   PRIOR DCJ
File Number            :   IND 2121 of 2019

Catchwords:

Criminal law - Appeal against sentence - Appellant convicted after trial of one count of sexually penetrating the complainant without her consent by penetrating her vagina with his penis - Sentence of 4 years' immediate imprisonment - Manifest excess

Legislation:

Criminal Code (WA), s 325(1)

Result:

Leave to appeal refused
Appeal dismissed

Category: D

Representation:

Counsel:

Appellant	:	Mr S D Freitag SC
Respondent	:	Mr R G Wilson

Solicitors:

Appellant	:	Mortlock Ryan & Co
Respondent	:	Director of Public Prosecutions (WA)

Case(s) referred to in decision(s):

Alizada v The State of Western Australia [2021] WASCA 18
Costa v The State of Western Australia [2019] WASCA 3
Gleeson v The State of Western Australia [2019] WASCA 100
Hopper v The Queen [2003] WASCA 153
Kabambi v The State of Western Australia [2019] WASCA 44
Lakay v The State of Western Australia [2019] WASCA 46
McNally v The State of Western Australia [2019] WASCA 93
Mearns v The State of Western Australia [2009] WASCA 153
Munmurrie v The State of Western Australia [2013] WASCA 167
Musgrave v The State of Western Australia [2021] WASCA 67
Singh v The State of Western Australia [2017] WASCA 47
SJN v The State of Western Australia [2016] WASCA 215
Suleman v The State of Western Australia [2022] WASCA 19
The State of Western Australia v Hussian [2020] WASCA 186
The State of Western Australia v Jacoby [2020] WASCA 150
The State of Western Australia v Richards [2008] WASCA 134; (2008) 37 WAR 229
The State of Western Australia v Vartolo [2015] WASCA 53

JUDGMENT OF THE COURT:

This is an appeal against sentence.
The appellant was charged on indictment with four counts of sexual offending.
The indictment alleged that on or about 1 December 2018 at a country town:
(a)the appellant sexually penetrated the complainant without her consent by introducing his penis into her mouth (count 1);
(b)the appellant sexually penetrated the complainant without her consent by penetrating her vagina with his fingers (count 2);
(c)the appellant sexually penetrated the complainant without her consent by penetrating her vagina with his penis (count 3); and
(d)the appellant sexually penetrated the complainant without her consent by introducing his penis into her mouth (count 4),
in each case, contrary to s 325(1) of the Criminal Code (WA) (the Code).

The appellant pleaded not guilty.
On 6 May 2021, after a trial before Prior DCJ and a jury, the appellant was convicted of count 3 and acquitted of the other counts.
The maximum penalty for an offence against s 325(1) of the Code is 14 years' imprisonment.
On 14 May 2021, the trial judge sentenced the appellant to 4 years' immediate imprisonment. The sentence began on that date. A parole eligibility order was made.
The appellant's sole ground of appeal alleges that the sentence of 4 years' immediate imprisonment was manifestly excessive as to length.
In our opinion, the ground of appeal does not have a reasonable prospect of success. Leave to appeal should be refused. The appeal must be dismissed.

The facts and circumstances of the offending

On 1 and 2 December 2018, the appellant (who was aged 19 years), the complainant (who was aged 21 years), another young man (Mr G) and another young woman (Ms M) were at a house in a country town.
During an afternoon, the appellant, the complainant, Mr G and Ms M consumed a considerable quantity of alcohol. At some point in the afternoon, all of them were involved in a water fight. After the water fight, they had a shower together at the house. While in the shower, the appellant attempted to touch the complainant's buttocks and breast. He also attempted to kiss her. The complainant rejected the appellant's advances.
During the evening, the appellant, the complainant, Mr G and Ms M participated in 'dancing and grinding' with or on each other. The grinding involved physical activity including pelvic thrusting. While this occurred, the appellant attempted again to touch the complainant's buttocks and breast. She rejected his advances.
Later that evening, the complainant, Mr G and Ms M were lying on Mr G's bed. They were kissing each other. The appellant entered the room and got into the bed. Mr G and Ms M left the room. The appellant then began to touch the complainant sexually.
The appellant penetrated the complainant's vagina with his fingers. The appellant was acquitted at trial of the charge that arose from that digital penetration. Immediately after the digital penetration, the complainant told the appellant that she was not consenting to any further physical activity. The appellant responded by grabbing the complainant's wrists, putting her wrists above her head and removing her shorts. The appellant then pushed the complainant's underwear to the side and inserted his penis into the complainant's vagina. The appellant was on top of the complainant, who was face up on the bed.
The complainant told the appellant to get off her. She began to cry. The complainant attempted to get out of the bed and leave the room, but the appellant prevented her from doing so. The complainant told the appellant that she needed to urinate. The appellant said that she should 'pee' herself.
Ms M then entered the room. She saw the appellant and the complainant engaging in sexual intercourse. Ms M asked the complainant if this was what she wanted. The complainant replied, 'No, get him off me'. Ms M could see that the complainant was crying. Ms M told the appellant to get off the complainant. He refused. Ms M then proceeded to push the appellant off the complainant. Ms M and the complainant then went to the bathroom.
The following day, after the complainant had left the house, she complained to her mother. She also sent a Facebook message to Mr G and Ms M. The appellant sent a message of apology to the complainant.

The trial judge's sentencing remarks

The trial judge recounted the facts and circumstances of the offending in his sentencing remarks.
His Honour made these comments about the seriousness of the appellant's offending:
[I]t is clear that you misinterpreted the afternoon's events as to the victim's consent to you having sexual intercourse with [her] by way of you penetrating her vagina with your penis.
She rejected your physical advances a number of times before the offence. When the victim asked you to stop the actual act of penile penetration of her vagina, you continued to penetrate her vagina with your penis. She was crying when you were penetrating her with your penis. You also continued to penetrate her when [Ms M] entered the room and told you to get off the victim. She had to physically push you off the victim. This evidence, and in particular the evidence of [Ms M], was not challenged at your trial.
When you were penetrating the victim with your penis, if you were under an honest belief that the victim was consenting, that belief could not have been reasonable during [Ms M's] intervention when she entered the room. [Ms M's] evidence of what she saw, heard and did when she entered the bedroom, when you were sexually penetrating the victim with your penis, makes your offending objectively serious notwithstanding all the events that had occurred leading up to this act.
When you committed this offence you were very intoxicated. Your level of intoxication to me explains your behaviour when I consider your background, but it does not excuse or mitigate your behaviour. Notwithstanding your level of intoxication you must have been aware the victim was not consenting to the act of sexual penetration of her vagina with your penis when [Ms M] was in the room.
There was no planning or use of violence in your offending. I also accept the offence was spontaneous offending, in particular in the context of the activity which occurred earlier in the day and the activity that occurred immediately before in the bedroom in the bed (ts 361 ‑ 362).
The trial judge said that the complainant had not provided a victim impact statement. However, his Honour saw the complainant give evidence. His Honour was of the view that the psychological and emotional impact of the offending on the complainant was likely to be continuing.
His Honour referred in detail to the appellant's personal circumstances and antecedents.
The appellant was aged 19 years at the time of the offending and was aged 22 when sentenced.
The appellant completed year 12 at school. He has worked in the shearing industry and has a strong work ethic.
The appellant is in good physical health.
The appellant has no prior criminal convictions. He has three road traffic convictions. The trial judge gave no weight, for sentencing purposes, to the road traffic convictions.
Referees as to the appellant's character considered that the charged offences were out of character for the appellant. They described the appellant in positive terms. The referees were of the view that the appellant was respectful towards females. The appellant has made a positive contribution to his local community. He has very strong family support.
His Honour said that there were two aggravating factors in relation to the appellant's offending. First, the appellant restrained the complainant when he penetrated her vagina with his penis. Secondly, the appellant did not stop penetrating the complainant when she showed signs of distress. He disregarded Ms M when she told him to get off the complainant. Ms M had to physically push the appellant off the complainant.
The trial judge noted that, as a youthful offender, the appellant's rehabilitation was an important sentencing factor. His Honour said that, having regard to the appellant's background and the good character evidence, the appellant had good prospects of rehabilitation. He was at a low risk of reoffending.
His Honour accepted that the appellant was now remorseful for his offending, notwithstanding that he had pleaded not guilty and proceeded to trial.
The trial judge commented that the facts of the case were 'unusual' and, for that reason, his Honour had reduced the length of the sentence of imprisonment he would otherwise have imposed (ts 363).

Counsel for the appellant's submissions

Counsel for the appellant submitted that there were 'very significant mitigating factors' in relation to the offending and the appellant personally and, having regard to those factors, the sentence of 4 years' immediate imprisonment was manifestly excessive as to length (appeal ts 2). Counsel also noted that his Honour found that the offending was spontaneous and did not involve planning or the use of violence. It was not submitted that the sentence of imprisonment should have been suspended or conditionally suspended (appeal ts 6).

Counsel for the State's submissions

Counsel for the State submitted that the sentence of 4 years' immediate imprisonment adequately reflected the maximum penalty and the aggravating and mitigating factors. The sentence was broadly consistent with customary sentencing practice for offending of its kind. It had not been shown that the sentence was manifestly excessive.

The merits of the appeal

The general sentencing principles applicable to a ground of appeal which alleges that a sentence is manifestly excessive are well established. See, for example, Gleeson v The State of Western Australia.[1] It is unnecessary to repeat them.
[1] Gleeson v The State of Western Australia [2019] WASCA 100 [57] - [64] (Buss P, Mazza & Mitchell JJA).
The maximum penalty for the offence of non‑aggravated sexual penetration without consent, contrary to s 325(1) of the Code, is 14 years' imprisonment.
Where an offender is convicted after trial of a single count of non‑aggravated penile penetration of the vagina, a sentence of 5 to 6 years' imprisonment is not unusual. See The State of Western Australia v Richards.[2] However, it must be emphasised that a sentence outside that range will not necessarily be manifestly excessive or manifestly inadequate. The circumstances of offending and offenders vary widely. Sentences significantly beyond the range identified in Richards may, having regard to the maximum penalty and the relevant facts and circumstances, be justified in particular cases. See The State of Western Australia v Hussian.[3]
[2] The State of Western Australia v Richards [2008] WASCA 134; (2008) 37 WAR 229 [49] (Steytler P; Martin CJ, McLure, Buss & Miller JJA relevantly agreeing).
[3] The State of Western Australia v Hussian [2020] WASCA 186 [120] (Buss P, Mazza & Beech JJA).
We have considered a number of previous appeals against sentence, decided by this court or its predecessor, which involved the offence of non‑aggravated sexual penetration without consent, contrary to s 325(1) of the Code. Those cases include Hopper v The Queen;[4] Mearns v The State of Western Australia;[5] Munmurrie v The State of Western Australia;[6] The State of Western Australia v Vartolo;[7] SJN v The State of Western Australia;[8] Singh v The State of Western Australia;[9] Costa v The State of Western Australia;[10] Kabambi v The State of Western Australia;[11] Lakay v The State of Western Australia;[12] McNally v The State of Western Australia;[13] The State of Western Australia v Jacoby;[14] Alizada v The State of Western Australia;[15] Musgrave v The State of Western Australia[16] and Suleman v The State of Western Australia.[17]
[4] Hopper v The Queen [2003] WASCA 153.
[5] Mearns v The State of Western Australia [2009] WASCA 153.
[6] Munmurrie v The State of Western Australia [2013] WASCA 167.
[7] The State of Western Australia v Vartolo [2015] WASCA 53.
[8] SJN v The State of Western Australia [2016] WASCA 215.
[9] Singh v The State of Western Australia [2017] WASCA 47.
[10] Costa v The State of Western Australia [2019] WASCA 3.
[11] Kabambi v The State of Western Australia [2019] WASCA 44.
[12] Lakay v The State of Western Australia [2019] WASCA 46.
[13] McNally v The State of Western Australia [2019] WASCA 93.
[14] The State of Western Australia v Jacoby [2020] WASCA 150.
[15] Alizada v The State of Western Australia [2021] WASCA 18.
[16] Musgrave v The State of Western Australia [2021] WASCA 67.
[17] Suleman v The State of Western Australia [2022] WASCA 19.
The lowest individual sentence imposed or upheld in those cases was a sentence of 2 years' immediate imprisonment after trial which was imposed by this court in Mearns. In Lakay [40], this court made the following observations about the decision in Mearns:
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.
Apart from the decisions in Mearns and Suleman (both of which involved less serious offending than in the present case), the sentences in the cases listed at [36] above for individual counts of sexual penetration without consent, contrary to s 325(1) of the Code, range from 3 years 6 months' immediate imprisonment to 6 years' imprisonment. It is unnecessary to repeat the relevant facts and circumstances of the other cases. There are some comparable features between some of those cases and the present case but there are also distinguishing features. Having regard to the comparable features and the distinguishing features, the sentence of 4 years' immediate imprisonment imposed in the present case is broadly consistent with the sentencing pattern revealed by the other cases.
In our opinion, the facts and circumstances of the appellant's offending on count 3 were very serious. The offending did not merely involve an absence of consent by the complainant. She expressly refused consent to penile/vaginal penetration. She expressly reiterated her refusal of consent while the offending was happening. The appellant physically restrained the complainant to enable him to have sexual intercourse with her despite her protestations. The complainant's distress was obvious. The appellant refused to get off the complainant and he prevented her from getting out of the bed and leaving the room. The appellant ignored Ms M when she told the appellant to get off the complainant. The appellant only desisted when Ms M pushed him off the complainant.
The appellant's intoxication is, in part, an explanation for his offending, but it is not, to any extent, an excuse.
The trial judge found that the psychological and emotional impact of the offending on the complainant was likely to be continuing.
The very serious nature of the appellant's offending was ameliorated by a number of mitigating factors. He was youthful, for sentencing purposes, both at the time of the offending and when sentenced. He had no prior criminal convictions. The appellant had a strong work ethic. He had a good reputation in his local community and very strong family support. The appellant did not have the mitigation that a plea of guilty would have brought, but his Honour accepted that the appellant was ultimately remorseful for his offending. His Honour found that the appellant had good prospects of rehabilitation and was at a low risk of reoffending.
In our opinion, the sentence of 4 years' immediate imprisonment was commensurate with the seriousness of the offence. The sentence is broadly consistent with the sentencing pattern disclosed by previous sentencing decisions of this court in cases with at least some comparable features. We are satisfied, having regard to all relevant facts and circumstances and all relevant sentencing factors (including the mitigating factors mentioned by his Honour) that the length of the sentence is not unreasonable or plainly unjust.
The ground of appeal is without merit.

Conclusion

The ground of appeal does not have a reasonable prospect of success. Leave to appeal should be refused. The appeal must be dismissed.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
KW
Associate to the Honourable Justice Buss
8 AUGUST 2022