McFarlane v The State of Western Australia

The appellant, McFarlane, was convicted by the Magistrates Court of Western Australia on a plea of guilty to one count of sexual penetration without consent. McFarlane appealed against his sentence, which was 2 years and 4 months’ immediate imprisonment, to the Supreme Court of Western Australia. The key issues before the court were whether the sentence was manifestly excessive as to type, whether the delay in prosecution was mitigatory, whether an unreasonable mistaken belief that the victim was consenting was mitigatory, and whether steps taken toward rehabilitation constituted exceptional circumstances. The court was also required to determine whether it was open to the sentencing judge to conclude that it was inappropriate to suspend or conditionally suspend the sentence of imprisonment.

The court held that the sentence was not manifestly excessive as to type. The court considered the gravity of the offence, the delay in prosecution, and the offender's history of offending and rehabilitation efforts. The court found that the delay in prosecution was not attributable to the appellant and therefore not mitigatory. The court also found that the appellant's mistaken belief that the victim was consenting was unreasonable but did not constitute exceptional circumstances. The court held that it was open to the sentencing judge to conclude that it was inappropriate to suspend or conditionally suspend the sentence of imprisonment, given the gravity of the offence and the need for general deterrence.

In conclusion, the appeal against sentence was dismissed. The court held that the sentence was not manifestly excessive and that it was open to the sentencing judge to conclude that it was inappropriate to suspend or conditionally suspend the sentence of imprisonment. The appellant was ordered to serve his sentence of 2 years and 4 months’ immediate imprisonment.