McFarlane v The State of Western Australia

[2024] WASCA 33

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT  :   THE COURT OF APPEAL (WA)

CITATION:   McFARLANE -v- THE STATE OF WESTERN AUSTRALIA [2024] WASCA 33

CORAM:   MAZZA JA

MITCHELL JA

HALL JA

HEARD:   17 JANUARY 2024

DELIVERED          :   17 JANUARY 2024

PUBLISHED           :   2 APRIL 2024

FILE NO/S:   CACR 68 of 2023

BETWEEN:   RYAN McFARLANE

Appellant

AND

THE STATE OF WESTERN AUSTRALIA

Respondent

ON APPEAL FROM:

Jurisdiction              :   DISTRICT COURT OF WESTERN AUSTRALIA

Coram:   BOWDEN DCJ

File Number            :   IND 2067 of 2022

Catchwords:

Criminal law - Appeal against sentence - Convicted on plea of guilty to one count of sexual penetration without consent - Sentence of 2 years 4 months' immediate imprisonment - Where offender charged and sentenced 12 years after commission of offence - Where offender falsely denied offending to police at the time - Whether sentence manifestly excessive as to type - Whether delay attributable to appellant is mitigatory - Whether unreasonable mistaken belief that victim was consenting is mitigatory - Whether steps taken toward rehabilitation constituted exceptional circumstances - Whether open to sentencing judge to conclude it was inappropriate to suspend or conditionally suspend sentence of imprisonment

Legislation:

Criminal Code (WA), s 325
Sentencing Act 1995 (WA), s 6(4), s 9AA, s 39(2), s 39(3), s 76(1), s 76(2), s 81(1)

Result:

Leave to appeal refused
Appeal dismissed

Category:    B

Representation:

Counsel:

Appellant	:	S D Freitag SC
Respondent	:	R Arndt

Solicitors:

Appellant	:	Max Crispe Barristers & Solicitors
Respondent	:	Director of Public Prosecutions (WA)

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

Braham v The Queen (1994) 116 FLR 38; (1994) 73 A Crim R 353

Damiani v The State of Western Australia [2006] WASCA 47; (2006) 165 A Crim R 358

Director of Public Prosecutions v Oh Marris [2023] TASCCA 1

Kabambi v The State of Western Australia [2019] WASCA 44

Musgrave v The State of Western Australia [2021] WASCA 67

PAS v The State of Western Australia [2009] WASCA 210; (2009) 212 A Crim R 546

R v Law; Ex parte Attorney‑General (Qld) [1995] QCA 444; [1996] 2 Qd R 63

R v Rosenberger; Ex parte Attorney‑General (Qld) [1995] 1 Qd R 677

R v Smith [2004] WASCA 44

R v Stephens (1994) 76 A Crim R 5

R v Thompson (1987) 37 A Crim R 97

R v Williams [2018] SASCFC 14

Scook v The Queen [2008] WASCA 114; (2008) 185 A Crim R 164

Shore v The Queen (1992) 66 A Crim R 37

Sturniolo v The State of Western Australia [2023] WASCA 147

Tapper v The State of Western Australia [2016] WASCA 140

Taylor v The State of Western Australia [2019] WASCA 217

The State of Western Australia v Rayapen [2023] WASCA 55

The State of Western Australia v Syred [2020] WASCA 185

JUDGMENT OF THE COURT:

1. On 17 January 2024, after hearing oral submissions in relation to this appeal against sentence, the court unanimously made the following orders:[1]

   1.Leave to appeal refused.

   2.The appeal is dismissed.

   [1] Appeal ts 27.

2. The court stated that it would publish its reasons for making the orders at a later date.  Our reasons are as follows.

3. On 18 April 2023, the appellant was convicted on his plea of guilty of one count of sexual penetration without consent, contrary to s 325 of the Criminal Code (WA) (the Code), by engaging in cunnilingus. On 4 May 2023, Bowden DCJ sentenced the appellant to 2 years 4 months' immediate imprisonment to commence on that date, with parole eligibility.

4. The appellant appealed to this court on a single ground.  In essence, the ground alleged that the sentence imposed was manifestly excessive as to type, but not as to length.[2]

   [2] Appeal ts 13.

The facts

1. Although this court required some clarification during oral submissions as to the facts of the offending, those facts were not disputed by the parties.  What follows is largely drawn from the facts as presented by counsel in the sentencing proceedings and as found by Bowden DCJ in the sentencing remarks. 

2. The appellant committed the offence whilst attending a 'buck's party' at a residence in Heathridge on 16 January 2011.  At the time, he was 30 years of age.  The victim was 18 years of age.  Neither the appellant nor the victim knew each other prior to the night in question. 

3. At the time of the commission of the offence, both the appellant and the victim were intoxicated.  The appellant had been drinking the day before and continued drinking throughout the day, and into the evening of 16 January 2011, including after he arrived at the party.  During the party, the appellant spoke to and 'flirted' with the victim.[3]  He found the victim attractive and believed that she was interested in him, although she had done nothing to encourage that belief. 

   [3] ts 39.

4. At some point, the victim was taken by a female friend to a bedroom in the house.  In her intoxicated state, the victim laid down on the bed.  Her friend remained in the bedroom with her.  The appellant subsequently noticed that the victim was absent from the party and went looking for her.  He entered the darkened bedroom in which the victim and her friend were lying down. 

5. Although not completely clear from the sentencing remarks, it was accepted by counsel for the respondent during the appeal hearing that, prior to the act of sexual penetration, the appellant and the victim spoke to each other and engaged in mutual kissing.[4]  It was accepted by defence counsel at the sentencing proceedings that the victim was heavily intoxicated and, while she was in that state, the appellant removed her underwear and penetrated her vagina with his tongue.  At that point in time, the victim believed that the appellant was actually a friend of hers, named 'Jake'.  The appellant then suggested to the victim that they have sexual intercourse.  The victim replied with words to the effect of, 'No, not without a condom'.  The appellant responded, 'Okay'.  He did not persist further.  The victim's female friend, who was still in the bedroom, then turned on a light.  The victim realised that the man in bed with her was not 'Jake'.  The appellant got dressed, left the room and later left the house. 

   [4] Appeal ts 20 - 21.

6. The victim promptly reported the incident to the police.  She was medically examined and forensic swabs were taken. 

7. A police investigation followed shortly thereafter.  On 29 July 2011, the appellant was interviewed by police.  He admitted that he had attended the party but, falsely, denied going into any bedrooms at the house and denied 'touching any females'.[5]  According to his defence counsel, the appellant lied out of fear of the consequences that would arise if he told the truth.  At the time, there was insufficient evidence available for police to identify the offender.  The police investigation file was closed the following year, in 2012. 

   [5] ts 8.

8. In 2022, the police investigation file was reopened as part of a cold case review and the forensic exhibits were re‑tested.  Forensic analysis of the swabs provided by the victim revealed a DNA profile matching that of the appellant.  The appellant was then arrested on 18 October 2022.[6]

   [6] ts 9.

9. At the sentencing hearing, it was accepted by defence counsel that the appellant had been aware of how drunk the victim was, and that she was too intoxicated to consent to sexual activity, regardless of whether the person with whom she thought she was engaging in that activity was the appellant or her friend, 'Jake'.[7]  It was submitted that, in his own intoxicated state, the appellant held a subjectively honest belief that the victim was consenting to the act of cunnilingus.  But defence counsel also accepted that this belief was objectively unreasonable.[8]

   [7] ts 11 - 12.

   [8] ts 17 - 18.

The appellant's personal circumstances

1. As stated, the appellant was 30 years old at the time of the commission of the offence.  He was 42 years old when he was sentenced. 

2. The appellant was born in Western Australia and had a positive upbringing, devoid of any trauma or abuse. 

3. The appellant began drinking alcohol at the age of 13 and was expelled from school in year 8, after an incident in which he arrived at school in an intoxicated state.  He went on to complete a four‑year apprenticeship in carpentry.  During the apprenticeship, he was diagnosed with Attention Deficit Hyperactivity Disorder (ADHD).  He also struggled with dyslexia.  After the completion of his apprenticeship, the appellant continued to work in the construction industry.  At the time of sentencing, he was employed as a building supervisor whilst also operating his own carpentry business.[9]

   [9] ts 14 - 15.

4. The appellant had been involved in two significant relationships.  The appellant and his wife married roughly one year before the offending took place.  They went on to have four children together.  The appellant and his wife separated in 2021, but maintained frequent contact thereafter.  Following his separation, the appellant commenced another relationship which, at the time he was sentenced, was reported to be going well. 

5. In the court‑ordered psychological report written by Ms Erin Sweeny, it was noted that, at the time of the commission of the offence, the appellant's wife had recently given birth to their first child.  Despite this, the appellant was 'drinking heavily and partying'.[10]  Since the commission of the offence, the appellant had reportedly taken steps to reduce his alcohol intake.  Ms Sweeny observed that the appellant did not present as a person currently impacted by mental health challenges,[11] although he demonstrated a tendency towards impulsivity and poor consequential thinking.[12]  According to Ms Sweeny, the appellant's offending appeared out of character.  She reported that there was no evidence to suggest risk 'in relation to sex drive/sexual preoccupation; sex as coping; or deviant sexual preference'.[13]

   [10] Psychological report, dated 1 February 2023, par 6.

   [11] Psychological report, dated 1 February 2023, par 10.

   [12] Psychological report, dated 1 February 2023, par 27.

   [13] Psychological report, dated 1 February 2023, par 22.

6. Between January and May 2022, the appellant attended counselling with Community Alcohol and Drug Services.  He also received treatment for depression, anxiety, and chronic alcohol abuse.  The sentencing judge was presented with evidence that the appellant's liver had been damaged as a result of his drinking, but had recently begun to repair itself due to the appellant's reduced alcohol consumption.

7. The appellant had a minor criminal record consisting of traffic offences and a conviction for criminal damage in 2000.  For present purposes, his criminal record was irrelevant. 

8. The sentencing judge was provided with a number of character references, including one written by the appellant's wife, from whom he had then separated.  The references spoke positively of the appellant and his personal qualities.

The victim impact statement

1. The sentencing judge was also provided with a victim impact statement.[14]  In her statement, the victim stated that the commission of the offence had caused her to suffer from both short‑term and more long‑lasting manifestations of distress, trauma, and fear.  The victim described being stripped of her self‑confidence and self‑worth.  Several years after the incident, she was diagnosed with severe anxiety and depression, and reported experiencing symptoms of post‑traumatic stress disorder.  The victim also stated that it had taken years for her to be able to re‑engage in normal social activities, and that she felt unable to build romantic partnerships, and trusting relationships with men more generally.

   [14] ts 42.

The sentencing remarks

1. The sentencing judge found that the appellant had offended against a victim who was highly vulnerable, as she was so intoxicated that she could not have provided consent, nor could she have taken action to avoid the appellant's offending conduct.  His Honour also observed that she had suffered trauma as a consequence of the offending.[15]

   [15] ts 44.

2. The sentencing judge accepted that the appellant had held an honest, but unreasonable, belief that the victim was consenting at the time of the offence.  His Honour took into account the following matters as mitigating factors:[16]

   (a)The appellant pleaded guilty to the offence, for which his Honour gave a discount of 25% pursuant to s 9AA of the Sentencing Act 1995 (WA).

   (b)The appellant had a good work record.

   (c)The appellant was remorseful.

   (d)The appellant was well regarded within the community.

   (e)The appellant had taken steps to address his alcohol abuse and had reduced his alcohol intake.

   (f)The appellant did not have any prior criminal record for sexual or violent offending.

   [16] ts 45.

3. His Honour encapsulated the mitigating factors in this way:[17]

   I accept that imprisonment is a sentence of last resort and can only be imposed if the protection of the public requires it or the offence is so serious that no other sentence in the circumstances can be justified.  Clearly, you have a number of mitigating factors.  Your plea of guilty, your age, no prior record for sexual offending or for any violent offending, full‑time employment, the support of your former wife and the children.  Clearly, you're a hardworking member of the community.  You've made efforts at rehabilitation, and you have strong support in the community.

   [17] ts 45.

4. The sentencing judge was clearly alive to the lengthy period between the commission of the offence and the sentencing.  His Honour acknowledged, in that period of approximately 12 years, the appellant had not reoffended and had taken some steps towards his rehabilitation.[18]

   [18] ts 46.

5. His Honour also acknowledged defence counsel's submission that the lengthy delay, combined with all of the other mitigating factors, placed the case in the exceptional category where it would be appropriate to impose a term of suspended imprisonment.[19]

   [19] ts 45.

6. Nonetheless, his Honour concluded that, despite the mitigating factors, the offence was so serious that a suspended sentence would be 'wholly inappropriate'.  His Honour explained his reasoning this way:[20]

   Having reviewed the position again, in my view, a suspended sentence would be wholly inappropriate.  It would fail to adequately reflect the serious nature [of the offence].  I accept that your personal circumstances are relevant insofar as the length of the term is concerned.  And I also accept that in these sort of cases, there is no hierarchy insofar as sentencing for specific acts of sexual penetration is concerned.

   The reality of the offence is that the seriousness is so high that the personal circumstances carry comparatively less weight than they do in some type of other offences.  That doesn't mean the personal circumstances are ignored, but the reality is that the overriding consideration must be the need for general deterrence.  This has been reiterated recently by the Court of Appeal in a recent court decision.

   [20] ts 46 - 47.

The appellant's submissions

1. The appellant submitted that, although the circumstances of the offending were serious enough to warrant a term of imprisonment, it was manifestly excessive to not suspend the term of imprisonment in all the circumstances, having regard to the facts of the offending and the appellant's personal circumstances.  The appellant did not argue that the sentence was manifestly excessive by reason of its length.[21]

   [21] Appeal ts 13.

2. On behalf of the appellant, it was submitted that the circumstances of the offending were unusual, in that:[22]

   (a)the appellant had spoken to the victim earlier at the party;

   (b)the appellant had been 'flirting' with her at that time;

   (c)when the appellant entered the bedroom in which the victim was lying down, he spoke to her;

   (d)the appellant and the victim kissed before the offending;

   (e)there was no violence, intimidation, or force used in the offending;

   (f)the victim mistakenly believed that it was another person licking her vagina and, therefore, 'allowed it to continue' on the basis of that belief; and

   (g)after the offending, the appellant made no further efforts to pursue sexual intercourse once the victim had made it clear that this would not occur without the use of a condom.

   [22] Appellant's case, par 14.

3. It was also submitted that the appellant's honest but mistaken belief as to the victim's consent was a mitigating factor, notwithstanding that it was unreasonable.[23] 

   [23] Appellant's case, par 16.

4. Senior counsel for the appellant also emphasised the appellant's plea of guilty at an early opportunity, his remorse, his minor criminal history, his consistent work history, the positive character references, and the efforts he had made to reduce his problematic alcohol use.[24]

   [24] Appeal ts 12.

5. It was acknowledged on behalf of the appellant that the delay in being charged was due to his dishonest denials of any involvement in the offending back when he was interviewed in 2011.  Nevertheless, it was argued that the delay was relevant because of the steps the appellant had taken in that time towards his rehabilitation.[25]

   [25] Appellant's case, par 21.

6. Senior counsel for the appellant submitted that, having regard to all of the abovementioned matters, this was one of those 'exceptional' cases where a term of suspended imprisonment was appropriate.[26]

   [26] Appeal ts 5.

The respondent's submissions

1. The respondent submitted that, notwithstanding the mitigating circumstances identified by senior counsel for the appellant, the offending was simply too serious to warrant the imposition of a term of suspended imprisonment.

2. It was submitted that the mitigating features were not so exceptional as to require a departure from the ordinary sentencing disposition for an offence of sexual penetration without consent, namely a term of immediate imprisonment.[27]

   [27] Respondent's answer, par 37.

3. The respondent submitted that the appellant's belief that the victim was consenting to the act of cunnilingus was of limited mitigatory effect, particularly as the appellant was only able to hold this belief because of his own self‑induced intoxication.  Further, the appellant's belief was highly unreasonable, having regard to the lack of any pre‑existing relationship with the victim, the fact that the victim had removed herself from the party to go to bed, and the appellant's knowledge that the victim was heavily intoxicated and, therefore, vulnerable.[28]

   [28] Respondent's answer, par 35.

General principles

1. The general principles relevant to an appeal that alleges a sentence is manifestly excessive are well established and were summarised by this court in Kabambi v The State of Western Australia.[29]  It is unnecessary to repeat those principles here.

   [29] Kabambi v The State of Western Australia [2019] WASCA 44 [21].

2. Under s 39(2) and s 39(3) of the Sentencing Act, a sentencing judge must be positively satisfied that it is not appropriate to suspend, or conditionally suspend, a term of imprisonment before the term can be ordered to be served immediately. Suspended imprisonment pursuant to pt 11 of the Sentencing Act, and conditional suspended imprisonment pursuant to pt 12 of the Sentencing Act, are sentencing options that may apply where a court sentences an offender to a term of imprisonment, or aggregate terms of imprisonment, of 60 months or less.[30] 

   [30] Sentencing Act, s 76(1), s 81(1).

3. A court cannot impose a sentence of suspended imprisonment unless immediate imprisonment for a term equal to that suspended would, if it were not possible to suspend imprisonment, be appropriate in all the circumstances.[31]

   [31] Sentencing Act, s 76(2).

4. That imprisonment is a sentence of last resort is also reflected in s 6(4) of the Sentencing Act, which provides that a court must not impose a sentence of imprisonment on an offender unless it decides that either the seriousness of the offence is such that only imprisonment can be justified, or the protection of the community requires it.  The discretion to suspend or conditionally suspend a term of imprisonment is not confined by considerations relating to rehabilitation.[32]  In a particular case, the objective features of an offence may outweigh the mitigating factors, including all steps the offender has taken towards rehabilitation.[33]  In an offender's appeal against a sentence of immediate imprisonment, the question for this court is whether it was open to the sentencing judge to conclude that it was inappropriate to suspend or conditionally suspend the sentence or sentences of imprisonment he or she intended to impose.[34]  Ultimately, the issue is whether the decision to impose a sentence of immediate imprisonment was unreasonable or plainly unjust in the circumstances of the particular case.[35]

   [32] Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321 [18] (Gleeson CJ & Hayne J), [26] (Gaudron & Gummow JJ), [84] (Kirby J).

   [33] The State of Western Australia v Syred [2020] WASCA 185 [21]; Tapper v The State of Western Australia [2016] WASCA 140 [68] ‑ [70].

   [34] Syred [22].

   [35] Syred [23].

1. It is also well established that, ordinarily, a term of immediate imprisonment is the only appropriate penalty for offences contrary to s 325 of the Code.[36]  This is because the violation of human dignity, which is inherent in offences of sexual penetration without consent, makes such offending particularly serious.[37]

   [36] The State of Western Australia v Rayapen [2023] WASCA 55 [196].

   [37] Musgrave v The State of Western Australia [2021] WASCA 67 [281]; Rayapen [196].

2. However, even where a term of immediate imprisonment is ordinarily, or generally, the only appropriate penalty for an offence, the sentencing judge must still consider whether, having regard to all relevant sentencing factors in the case under consideration, it is appropriate to impose a lesser sentence.[38]

   [38] Syred [28].

Disposition

1. In our opinion, contrary to the submissions of senior counsel for the appellant, his Honour was correct to conclude that the imposition of a term of suspended imprisonment was inappropriate in this case.

2. Without question, the offence committed by the appellant was serious.  The appellant and the victim did not know each other prior to the night in question.  Their contact at the party prior to the commission of the offence was brief.  Whilst the appellant was evidently attracted to the victim and 'flirted' with her, she did nothing to reciprocate that interest.

3. Even in his own intoxicated state, the appellant was well aware that the victim was heavily intoxicated.[39]  In effect, she had left the party and retreated into a bedroom to sleep.  She was entitled to believe that, in doing so, she would be safe and no one would seek to take advantage of her in her vulnerable state.  The appellant then went looking for her.  There was no suggestion made that he did this out of concern for the victim's welfare.  Rather, he sought her out because he felt attracted to her.

   [39] ts 12, 17.

4. Upon entering the darkened bedroom, the appellant must have seen the victim lying on the bed, clothed and still in an intoxicated state.  It appeared, from defence counsel's version of the facts, which was accepted by the prosecutor at sentencing, that the appellant was welcomed into the bed.  Whilst it may be true that, after the appellant got into bed with the victim, they spoke to each other and kissed, he was also well aware that she was so intoxicated that she was incapable of consenting to any sexual activity.  Defence counsel for the appellant confirmed that awareness at sentencing.  Nevertheless, the appellant removed the victim's underwear and performed cunnilingus on her.  At that point, the victim believed that the person in bed with her was 'Jake'.  Her confusion is no source of mitigation to the appellant, as he was aware of her incapacity to consent to any sexual activity.

5. The appellant was afforded some mitigation by the sentencing judge on the basis that the appellant had honestly believed the victim was consenting to the offending conduct.  However, his Honour also found, and defence counsel accepted, that such a belief was unreasonable due to the victim's state of intoxication.[40]

   [40] ts 17 - 18, 43 - 44.

6. In Taylor v The State of Western Australia,[41] this court observed that, generally speaking, an offender who is convicted of a sexual offence that includes, as an element, the absence of consent, and who honestly but unreasonably believed that the victim was consenting to the act in question, will be less morally culpable than an offender who did not honestly believe the victim was consenting.[42]  However, the court in Taylor emphasised that the question of whether an honest belief will be a mitigating factor and, if so, to what extent, will depend upon all the relevant facts and circumstances of the particular case.[43]

   [41] Taylor v The State of Western Australia [2019] WASCA 217.

   [42] Taylor [96].

   [43] Taylor [96]. See also PAS v The State of Western Australia [2009] WASCA 210; (2009) 212 A Crim R 546 [99].

7. In the present case, it is highly relevant that the appellant's honest but mistaken belief, that the victim was consenting to the act of cunnilingus, was very much a product of his voluntary intoxication.  At the sentencing proceedings, defence counsel went so far as to submit that, had the appellant not been intoxicated, he would not have held that mistaken belief.[44]  We agree with the observations of the Court of Criminal Appeal of Tasmania in Director of Public Prosecutions v Oh Marris,[45] that, generally speaking, where the inability of an offender to appreciate the nature and consequences of his actions, mistake, or misjudgment arises from self‑induced intoxication, the moral culpability of the offender is not reduced.  Such an offender is generally to be regarded as morally responsible for his or her condition.  Thus, the appellant in the present case was fortunate that his Honour gave some mitigation to the appellant's mistaken belief that the victim was consenting to the act of cunnilingus.  In any event, the weight that could properly be given to the appellant's mistaken belief was significantly reduced by the fact that it was, in all of the circumstances, grossly unreasonable.

   [44] ts 30.

   [45] Director of Public Prosecutions v Oh Marris [2023] TASCCA 1 [35].

8. General deterrence is ordinarily an important consideration in the sentencing of offenders who commit offences contrary to s 325 of the Code. It remains an important consideration in cases such as this. Voluntary intoxication, which impairs or deprives an offender of the ability to discern whether or not consent has been given to sexual activity, should not generally be regarded as a reason for lenience.[46]

   [46] R v Rosenberger; Ex parte Attorney‑General (Qld) [1995] 1 Qd R 677, 678 ‑ 679, cited with approval in Damiani v The State of Western Australia [2006] WASCA 47; (2006) 165 A Crim R 358 [2]. See also R v Williams [2018] SASCFC 14 [51]; Hopper v The Queen [2003] WASCA 153 [21]; R v Stephens (1994) 76 A Crim R 5, 7.

9. It is true that there was a delay of more than a decade between the commission of the offence and the appellant being charged and sentenced for it.  The delay in this case may be explained by the fact that the appellant lied to police by making the denials set out in [11] above.  While delay in itself is not mitigatory, delay in combination with other relevant sentencing factors, such as progress towards rehabilitation, may be mitigatory.[47]  However, there is a clear distinction between cases where a delay in sentencing occurs because of circumstances entirely outside the offender's control and, on the other hand, cases where the sole cause of the delay was the offender's own action taken to avoid the consequences of his criminality.  Courts must be careful not to encourage lying to the police by affording leniency in relation to it.  Genuine rehabilitation during such a period is not to be entirely ignored, but it cannot be given the same significance as in a case of the first kind described above.[48]

   [47] See Sturniolo v The State of Western Australia [2023] WASCA 147 [301]; Scook v The Queen [2008] WASCA 114; (2008) 185 A Crim R 164 [31] ‑ [32].

   [48] Braham v The Queen (1994) 116 FLR 38; (1994) 73 A Crim R 353, 356, 365 ‑ 366; Shore v The Queen (1992) 66 A Crim R 37, 47; R v Thompson (1987) 37 A Crim R 97, 100. See also R v Law; Ex parte Attorney‑General (Qld) [1995] QCA 444; [1996] 2 Qd R 63, 66 ‑ 67.

10. The sentencing judge noted that the appellant had taken some steps to address his problematic consumption of alcohol in the past 12 months or so.  However, the evidence before his Honour fell short of demonstrating that the appellant was fully rehabilitated.

11. There is no need to undertake an analysis of comparable cases. As already noted, the appellant took no issue with the length of the sentence imposed. In any event, as the respondent pointed out in its written submissions, an examination of the comparable cases reveals that, over the last 20 years, this court has not imposed a sentence of suspended imprisonment, conditional or otherwise, for an offence contrary to s 325 of the Code.[49]  Additionally, this court has upheld such a sentence on only one occasion, being in R v Smith,[50] a case decided before the abolition of the rule against double jeopardy in appeals by the prosecution. Of course, the rarity of a non‑immediate custodial disposition for offences contrary to s 325 of the Code does not mean that there will never be a case where something less than a term of immediate imprisonment may be appropriate, but it remains relevant that such cases are, in fact, rare.

    [49] Respondent's answer, par 24.

    [50] R v Smith [2004] WASCA 44.

12. The mitigating factors in the present case were of substantial weight, when viewed in combination.  Of particular note is that the appellant pleaded guilty, was found to be remorseful, had no relevant criminal history and, on the sentencing judge's findings, was afforded some mitigation for his unreasonable honest, but mistaken, belief.  The appellant has taken steps towards his rehabilitation, he was well supported within the community, and he did not require personal deterrence.  Together, these factors justified the imposition of a term of imprisonment towards the lower end of the range.  However, in our view, none of the mitigating features were, either individually or in combination, of such an exceptional nature as to justify a departure from the ordinary disposition for an offence of sexual penetration without consent.  When all of the relevant circumstances of the case are considered, the offence committed by the appellant was simply too serious to be dealt with by way of a term of suspended imprisonment of any kind.  It was open to the sentencing judge to conclude that it was inappropriate to suspend, or conditionally suspend, the sentence of imprisonment that his Honour ultimately imposed.

13. The ground of appeal had no reasonable prospects of succeeding and was not made out.  Accordingly, leave to appeal was refused and the appeal was dismissed.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.

ST

Associate to the Honourable Justice Mazza

2 APRIL 2024