Miles v The State of Western Australia
[2010] WASCA 93
•18 MAY 2010
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: MILES -v- THE STATE OF WESTERN AUSTRALIA [2010] WASCA 93
CORAM: McLURE P
BUSS JA
JENKINS J
HEARD: 22 APRIL 2010
DELIVERED : 18 MAY 2010
FILE NO/S: CACR 2 of 2010
BETWEEN: JAMES MILES
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
FILE NO/S :CACR 3 of 2010
BETWEEN :JAMES MILES
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram :SLEIGHT DCJ
File No :BUN 83 of 2009
Catchwords:
Criminal law - Application for leave to appeal against conviction - Sexual penetration without consent - Honest and reasonable mistake - Adequacy of trial judge's directions
Criminal law - Application for leave to appeal against sentence - Digital penetration without consent - Whether sentence manifestly excessive - Turns on own facts
Legislation:
Criminal Appeals Act 2004 (WA), s 27
Criminal Code (WA), s 24, s 325
Sentencing Act 1995 (WA), s 32
Result:
Application for extension of time within which to appeal refused
Leave to appeal refused
Appeal against conviction and sentence dismissed
Category: B
Representation:
CACR 2 of 2010
Counsel:
Appellant: Mr A J Robson
Respondent: No appearance
Solicitors:
Appellant: Legal Aid (WA)
Respondent: No appearance
CACR 3 of 2010
Counsel:
Appellant: Mr A J Robson
Respondent: No appearance
Solicitors:
Appellant: Legal Aid (WA)
Respondent: No appearance
Case(s) referred to in judgment(s):
Cavill v The State of Western Australia [2008] WASCA 108
Chan v The Queen (1989) 38 A Crim R 337
Church v The State of Western Australia [2007] WASCA 215; (2007) 177 A Crim R 23
Deering v The State of Western Australia [2007] WASCA 212
Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321
Mountain v The State of Western Australia [2009] WASCA 161
Napier v The State of Western Australia [2008] WASCA 106; (2008) 36 WAR 543
Powell v The State of Western Australia (Unreported, WASCA, Library No 8928, 6 June 1991)
Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473
The State of Western Australia v BLM [2009] WASCA 88; (2009) 256 ALR 129
Walley v The Queen (Unreported, WASCA, Library No 8894, 30 May 1991)
McLURE P: I agree with Jenkins J for the reasons she gives that leave to appeal against the appellant's conviction and sentence should be refused because the grounds of appeal have no reasonable prospect of succeeding. I propose to make some short observations on the appeal against conviction.
The appellant was convicted on one count of sexual penetration without consent. The sole ground of appeal was that the trial judge failed to direct the jury on the issue of honest and reasonable mistake as to the complainant's consent to the act of digital penetration. The only evidentiary foundation for the defence of mistake was the appellant's evidence that the complainant took his hand and placed it down her pants. However, that very same factual issue was also relevant to, and on the trial judge's directions, determinate of, the logically anterior question of whether the complainant consented to the sexual act. The defence of mistake as to the complainant's consent only arises if the jury is satisfied beyond reasonable doubt that the complainant did in fact consent.
The trial judge directed the jury that if the State had not proven beyond reasonable doubt that the complainant did not take the appellant's hand and place it down her pants, the jury could not be satisfied beyond reasonable doubt that the sexual penetration occurred without the complainant's consent and the jury must acquit (ts 89). That is, the evidentiary foundation for the defence of mistake would, if not negatived by the State, prevent the State from proving absence of consent (and thus the offence).
Later, the trial judge again directed the jury that they must acquit the appellant if they were not satisfied beyond reasonable doubt that the complainant did not take the appellant's hand and place it down her pants. The trial judge said:
[I]f you believe [the appellant] … you would find him not guilty because he says that his hand was picked up and placed down the pants of [the complainant] as a result of [the complainant's] action. You would find him not guilty if you believe that.
Even if you are not able to go so far as to make a positive finding that you believed him but his answers create in your mind a reasonable doubt as to whether in fact that might have happened or not, then you would also find him not guilty if you are left with a reasonable doubt as to whether [the complainant] picked up his hand and placed it down her pants.
Even if you have come to the conclusion that you don't believe a single word that [the appellant] says in his police interview that does not mean
that you automatically move to find him guilty of the charge against him. You can only find him guilty of the charge against him if you are satisfied beyond reasonable doubt that the version that has been presented to you by [the complainant] about her not grabbing his hand ‑ you are satisfied as to beyond reasonable doubt [118].
In light of those directions, it was unnecessary to direct the jury on the issue of mistake as to whether the complainant consented. If the jury was not satisfied beyond reasonable doubt that the complainant did not grab the appellant's hand and place it down her pants, the trial judge directed the jury that they must acquit the appellant. A directed acquittal is more advantageous to the appellant then a direction on whether the appellant honestly and reasonably believed that the complainant had consented. On the other hand, if the jury was satisfied beyond reasonable doubt that the complainant did not grab the appellant's hand and place it down her pants, that would negate the factual foundation required to put the defence of mistake.
BUSS JA: I agree with Jenkins J, for the reasons she gives, that leave to appeal against conviction should be refused and leave to appeal against sentence should be refused. I also agree with the additional observations of McLure P.
JENKINS J: On 6 October 2009, the appellant was convicted after trial in the District Court at Bunbury of one count of sexually penetrating the complainant, without her consent. On 26 November 2009, he was sentenced to 2 years' imprisonment. He appeals against his conviction and sentence. The appeal was lodged three weeks out of time.
Background
The complainant gave evidence that one night in 2008 when she was 17 years old she stayed at a friend's house. She and her then boyfriend (not the appellant) went to bed on a foldout bed. The complainant was very intoxicated. They engaged in some sexual activity, falling short of sexual intercourse, before falling asleep. The complainant said that she was woken up by the appellant who was then lying on the other side of her to her boyfriend. She saw that her boyfriend was asleep. Two of the appellant's fingers were inside her vagina and he was moving them in and out of it. The complainant was too scared to do anything. After a short time, the appellant withdrew his fingers and turned away. The complainant went back to sleep. The following morning the complainant
woke and saw the appellant still lying on the bed. Her boyfriend was also in the bed.
There was evidence from the complainant and other witnesses that in the morning the complainant was upset, cried and made an immediate complaint about the appellant's offending to others in the house. However, at that point, she declined to make a complaint to the police because she did not want to create problems with the appellant's family. She told the jury that she was scared of the appellant. There was also evidence from other occupants of the house that in the morning the appellant was in the same bed as the complainant and her boyfriend.
When the complainant was cross‑examined, it was put to her that during the night, whilst lying in bed, she had reached over and taken hold of a hand and put it down her pants, thinking that it was her boyfriend's hand. She denied that allegation.
There was evidence in the form of a recorded interview between the appellant and the police. In the interview, the appellant acknowledged that one night, when drunk, he had gone to sleep on the same bed as the complainant and her boyfriend. He said that when he was half asleep, the complainant grabbed his hand and put it down her pants near to her vagina. He said that he then realised what was happening, pulled his hand out and rolled away from the complainant. He said that during the incident the complainant let go of his hand. His hand had remained near her pelvic region for a couple of seconds before he withdrew it. The appellant said that his fingers did not penetrate her vagina.
The appellant did not call any evidence at trial.
Appeal against conviction
There is one ground of appeal against conviction. It is that the trial judge erred in law by failing to direct the jury on the defence of honest and reasonable mistake of fact in relation to consent. It is said that this failure resulted in a miscarriage of justice.
After closing addresses, but before the judge directed the jury, the following exchange took place between counsel and the judge:
SLEIGHT DCJ: Well, this is what I had planned to do. I had in plan to tell the jury that one issue arises as to whether what occurred was as a result of a willed act on the part of the accused. If they are satisfied beyond reasonable doubt it wasn't a willed act, that he simply woke up and found that his hand had been - was grabbed and placed down the vagina area then they would find him not guilty. The other issue that arises to whether she consented or not.
If they find that it was a willed act on his part, the issue then goes as to whether she consented. If they find that she didn't consent they then need to consider the issue of mistake on his part that she was consenting. But then to summarise it by saying, in essence this case has been fought on a factual issue and that is whether he initiated the sexual contact or whether she picked up his hand and placed it in her vagina area, and the state to succeed they would need to satisfy you that he initiated the sexual acts.
MacFARLANE, MR: Yes, I have no problem with that, sir.
SLEIGHT DCJ: Ms Keane, do you have any difficulty with that?
KEANE, MS: Your Honour, the state's just concerned that it may be complicating matters more than it needs to. Effectively, the state's view is that if the jury accepts [the appellant's] account that he was asleep when his hand was grabbed by [the complainant] et cetera, then he simply must be acquitted because it would have been with her consent. I think the issue of whether or not she was intoxicated et cetera is going further than the jury really needs to because ultimately if they accept that she's the one who initiated the contact, she took his hand, then it's an unwilled act on his part and it is with her consent. The only way that they can find him guilty is if they accept her account that he initiated the contact, that the contact was made at a time when she was asleep so there could not have been consent et cetera (ts 109).
His Honour did not make any further comment about how he would direct the jury.
When the trial judge directed the jury on the meaning of penetration, his Honour said that the penetration had to be the result of a willed act on behalf of the appellant. The jury was told that in order for the State to succeed, the State had to prove that the complainant 'did not take the hand of [the appellant] and place it down her pants'.
When the trial judge directed the jury on the element of consent, his Honour said that the State must prove beyond reasonable doubt that the sexual penetration was without the consent of the complainant. The jury was told:
Again, this issue of consent involves a consideration of the issue of whether [the complainant] grabbed [the appellant's] hand and placed it down her pants. If she did, if you think that that's a possibility, then clearly there would be consent to the act that occurred. The state must satisfy you again beyond reasonable doubt that [the complainant] did not take the hand of [the appellant] and place it down her pants. That is the factual issue upon which this consent rests (ts 115).
Later in the direction, when summarising the State's and the appellant's cases, his Honour told the jury that the appellant's defence was that his hand had been picked up by the complainant and placed down her pants. His Honour directed the jury, again, that in order to convict the appellant it must be satisfied beyond reasonable doubt that the complainant did not pick up his hand and place it down her pants. The jury was told that if it had a reasonable doubt about that, then it would find the appellant not guilty.
When his Honour directed the jury on the effect of the recorded interview between the appellant and the police, he said that if it believed what the appellant had said to the police or that his answers had created a reasonable doubt as to whether his account may have occurred, then it would find him not guilty. During the same portion of the direction, the jury was told that it could only find the appellant guilty if it was satisfied beyond reasonable doubt that the complainant's version of events was true.
The trial judge directed the jury that if it found the appellant not guilty of sexual penetration without consent, it would have to consider the alternative charge of indecent assault. That direction is not relevant to the appeal. The trial judge did not give the jury a direction about honest and reasonable but mistaken belief in consent. At the conclusion of the trial judge's directions, counsel did not raise any issue about the lack of such a direction.
The only material before the jury which raised an evidentiary basis for a mistaken belief on the part of the appellant as to the complainant's consent was his answers in his interview with the police to the effect that it was the complainant who had grabbed his hand and placed it on her body near her pubic area.
The appellant was charged under the Criminal Code (WA), s 325 which states:
A person who sexually penetrates another person without the consent of that person is guilty of a crime and is liable to imprisonment for 14 years.
The Criminal Code s 24 states:
A person who does or omits to do an act under an honest and reasonable, but mistaken, belief in the existence of any state of things is not criminally responsible for the act or omission to any greater extent than if the real state of things had been such as he believed to exist.
The appellant submits that the jury may have concluded that it was reasonably possible that the complainant had taken the appellant's hand and placed it down her pants near her pubic area but that, contrary to the appellant's account in the recorded interview with the police, he had not withdrawn his hand but proceeded to insert his fingers into the complainant's vagina. The appellant's counsel submits that on this 'intermediate' position between that of the appellant and the prosecution, there would have arisen the need for the jury to consider whether the appellant had inserted his fingers into the complainant's vagina under an honest and reasonable but mistaken belief that, because the complainant had put his hand down her pants, the complainant consented to the act of penetration. If the State failed to prove that that the appellant did not have that belief, he had to be acquitted.
The appellant does not submit that the issue of an honest and reasonable but mistaken belief may have arisen because the appellant thought that the complainant had taken his hand and put it down her pants but was mistaken in that belief because of his own semi‑conscious state and/or intoxication. The appellant acknowledges that the defence was never run on that basis.
In Napier v The State of Western Australia [2008] WASCA 106; (2008) 36 WAR 543 Steytler P (McLure & Buss JJA agreeing) said:
The fundamental task of a trial judge is to ensure a fair trial of the accused: RPS v The Queen [2000] HCA 3; (2000) 199 CLR 620 [41] (Gaudron A‑CJ, Gummow, Kirby & Hayne JJ). It has often been said, in this respect, that the law should be given to the jury with an explanation of how it applies to the facts of the particular case: Alford v Magee (1952) 85 CLR 437, 466; R v Zilm [2006] VSCA 72; (2006) 14 VR 11 [54] (Eames JA, Ashley JA concurring); and see also R v Andrakakos [2003] VSCA 170 [11] (Ormiston JA, Winneke ACJ & Buchanan JA concurring) and Domican v The Queen [1992] HCA 13; (1992) 173 CLR 555, 560 ‑ 561. In R v AJS [2005] VSCA 288; (2005) 12 VR 563 [55] the Victorian Court of Appeal has said (Maxwell P, Nettle JA & Redlich AJA) that the common law obligations of a judge in every jury trial are as follows:
(a)to decide what are the real issues in the case;
(b)to direct the jury on only so much of the law as is necessary to enable the jury to resolve those issues;
(c)to tell the jury, in the light of the law, what those issues are;
(d)to explain to the jury how the law applies to the facts of the case; and
(e)to summarise only so much of the evidence as is relevant to the facts in issue, and to do so by reference to the issues in the case.
Just how this is done will, of course, depend upon the particular circumstances of the case [46].
The real issue in this case was whether the complainant's evidence was truthful and reliable. The jury was directed that only if it was satisfied beyond reasonable doubt that the complainant's version of events was true, then it should convict the appellant. That is, if the jury was satisfied that the complainant was a reliable and truthful witness when she testified that whilst she was asleep the appellant had placed his hand down her pants and penetrated her vagina, without any instigation by her. The jury were directed that on any other version of the events, consistent with the complainant first taking the appellant's hand, it should acquit. This was because the State would have failed to prove lack of consent.
The State agreed to its case being put to the jury on this basis, although that seems to have been a concession made without a full consideration of the 'intermediate' position suggested on appeal.
The jury could not have been under any doubt that if it did not accept the complainant's evidence or if it found that the material giving rise to an evidentiary basis for mistaken belief in the complainant's consent may have been true, then the appellant should be acquitted. That approach to the issues in the case took from the judge the necessity to direct the jury on the law of honest and reasonable but mistaken belief in consent if the jury was satisfied that penetration had occurred but found that there was a reasonable possibility that the facts were as the appellant in the interview asserted them to be in regard to the commencement of the incident. It was unduly advantageous to the appellant for the trial judge to direct the jury, as he did, that anything less than acceptance of the complainant's version of events must result in an acquittal. It meant that the jury was, in effect, directed to acquit the appellant if it thought that the complainant first took his hand, even in circumstances where, if directed on s 24, it may have found that the complainant was penetrated without her consent and also have found that the appellant did not have an honest and reasonable belief that she was consenting.
For these reasons, the ground of appeal has no prospect of success: Criminal Appeals Act 2004 (WA) s 27 and Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473. Consequently, I would refuse an extension of time within which to appeal, refuse leave to appeal and dismiss the appeal against conviction.
Appeal against sentence
There is only one proposed ground of appeal against sentence. It is that the trial judge erred by imposing a sentence that was manifestly excessive, in the circumstances of the offending, the personal circumstances of the appellant and sentencing standards for offences of this type.
This court cannot interfere with a sentence merely because it would have imposed a sentence different to that of the sentencing judge. It may only interfere where it has been shown that the sentencing judge has made an express or implied material error of fact or law. If a sentence is manifestly excessive, it is unreasonable or unjust and error will be inferred: Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321 [57] ‑ [59] (Kirby J).
In determining whether a sentence is manifestly excessive, this court is to have regard to the maximum sentence for the offence, the standards of sentencing customarily observed with respect to the offence, the place which the criminal conduct occupies on a scale of seriousness of offences of that type and the personal circumstances of the appellant: Chan v The Queen (1989) 38 A Crim R 337, 342.
The maximum penalty for the offence of sexual penetration without consent is 14 years' imprisonment.
After reciting the facts, the sentencing judge identified that it was apparent from the complainant's evidence that the offence had caused her 'considerable trauma'. His Honour also noted that at the time of the offence, the appellant was intoxicated. His Honour took into account that the offending behaviour was for a short period of time, contained no associated violence and did not lead to any other form of sexual abuse. However, his Honour noted that there was no need for violence because of the intoxicated and somnolent state of the complainant.
The sentencing judge also referred to other offences for which he had to sentence the appellant. These included three unrelated, non‑sexual, summary offences presented to the court on a notice under the Sentencing Act 1995 (WA) s 32 and an offence of procuring a child to do an indecent act. In respect of the latter charge, the appellant had pleaded guilty in the District Court at Bunbury to that offence. On 22 September 2008, he had been placed on an intensive supervision order in respect of it. The conviction for sexual penetration without consent breached that intensive supervision order.
There is no appeal from the sentences imposed for these other offences. However, it is relevant to note that the offence of sexual penetration without consent was committed some five months after the appellant entered into the intensive supervision order. Secondly, the offence of procuring a child to do an indecent act involved the appellant, when very intoxicated, inviting an 11‑year‑old to touch his penis. Thirdly, two of the offences on the s 32 notice were committed after the offence of sexual penetration without consent but also were committed when the appellant was intoxicated. Fourthly, the sentencing judge imposed non‑custodial penalties in respect of the offences on the s 32 notice and the offence of procuring a child to do an indecent act.
The learned sentencing judge took into account the appellant's personal circumstances. The appellant was then 36 years of age, which meant that he was 33 at the time of the commission of this offence. His Honour noted that the appellant's father was an alcoholic and that this had led to arguments between his parents and domestic violence. The appellant's father died when the appellant was aged 10. His mother entered into a new relationship but her new partner also drank heavily and there was, again, domestic violence. The appellant was bullied and teased at school. He had a poor academic performance and left school at the age of 15. He had had some periods of employment but his employment capacity had been affected by his abuse of alcohol.
The appellant formed a relationship with his future wife soon after leaving school but they had separated in about 2002/2003. His marriage had been affected by the same problems that plagued his parents' marriage. The appellant had four children. The learned sentencing judge dealt in some detail with the appellant's alcohol problem. He noted that there had been 'minimal commitment' by the appellant to address this issue and that the appellant's abuse of alcohol was reflected in his prior criminal history which commenced when he was a juvenile at the age of 13. As an adult the appellant had a lengthy history of offending, including offences of burglary, and an extensive history of traffic offending. To the appellant's credit, his Honour noted that there were gaps in the appellant's history of offending.
His Honour stressed that the appellant's prior criminal record was not an aggravating circumstance but that it did mean that the appellant's offending could not be viewed as an isolated incident. His Honour also said that the appellant's past history put into context the nature of his offending behaviour and the problems that he had experienced due to alcohol.
The sentencing judge referred to two psychological reports which had been completed in respect of the appellant. The most recent report suggested that the appellant was of moderate to high risk of re‑offending, in view of his loneliness and his continued alcohol abuse.
His Honour then turned to the appropriate sentence for this offence. He said that the offence was serious and involved the violation of a young girl who, because of her state of intoxication and sleep, was not able to resist until she had been violated. His Honour acknowledged that digital penetration was generally less serious than penile penetration but he emphasised that all offences of sexual penetration without consent were serious matters. His Honour noted that a term of imprisonment was a penalty of last resort. He said that he had considered all sentencing options and concluded that in view of the seriousness of the offence an immediate term of imprisonment was the only appropriate sentence. I note that the appellant's counsel had conceded this position.
His Honour took into account that The State of Western Australia v BLM [2009] WASCA 88; (2009) 256 ALR 129 required him to avoid an unjustifiable disparity between the appellant's minimum custodial period and the minimum custodial period that he would have served if the transitional provisions were still in effect. His Honour then pronounced a term of 2 years' immediate imprisonment. His Honour backdated the sentence to commence on the date the appellant was first remanded in custody after conviction. There was a further 12 days' custody which the appellant had served in respect of the offence of procuring a child to indecently deal with him. His Honour declined to take those days into account. The appellant was made eligible for release on parole.
As to the standards of sentencing for this offence, the appellant acknowledges that there is no tariff for the offence. The appellant submits that the customary sentencing standards are reflected in four cases. The first case the appellant refers to is Mountain v The State of Western Australia [2009] WASCA 161. In Mountain, the offences were committed in the toilet of a nightclub. After some physical contact between the offender and the complainant, the complainant said that she blacked out and that her next recollection was of being on the floor and of the offender digitally penetrating her vagina. The offender was found not guilty of an offence which related to the initial sexual conduct. He was found guilty, after trial, of four counts of sexual penetration and one count of attempted sexual penetration, which were said to have occurred after the complainant made it clear that she did not consent to any further sexual conduct. The four counts of sexual penetration related to four instances of digital penetration of the complainant's vagina and anus. On each of these counts, on appeal, the offender was sentenced to 2 years 4 months' imprisonment. Two of the sentences were ordered to be served cumulatively, making a total sentence of 4 years 8 months' imprisonment.
On the one hand, that series of offences was much more serious than the offence in this case because there was considerably more sexual contact involved. On the other hand, Mountain received credit in the sentencing process because he had no prior convictions and favourable antecedents. There was, however, an age difference between the complainant and the offender. The complainant was 19 years of age and the offender was 38 years of age.
The second case relied on by the appellant is Cavill v The State of Western Australia [2008] WASCA 108. The offender was convicted following trial of one count of digital penetration. He was acquitted of a number of other offences. He was sentenced to 15 months' imprisonment. His appeal against sentence was dismissed. Miller JA (McLure & Buss JJA agreeing) found that the sentence of 15 months' imprisonment was, in all the circumstances, well within the range of sentences that could have been imposed for the offence. The offence occurred when the 23‑year‑old complainant was staying overnight in the 60‑year‑old offender's home. The offender had no prior record of convictions, apart from a traffic related matter. He was categorised as having a low risk of re‑offending.
The third case relied on is Church v The State of Western Australia [2007] WASCA 215; (2007) 177 A Crim R 23. The offender pleaded guilty to one count of digital penetration and two counts of indecent dealing of his 16‑year‑old employee. The offender was sentenced to 2 years' imprisonment for the offence of digital penetration. He received 12 months' imprisonment, concurrent, in relation to each of the offences of indecent dealing. His appeal against sentence was dismissed. The offender was 48 years of age at the time of the offence. The offender had no previous criminal history and had favourable antecedents. When interviewed by the police, the offender had admitted the acts constituting the offences and, as I have already mentioned, he pleaded guilty. The offences took place over a relatively short period of time and the offender desisted as soon as the complainant pushed him away.
The fourth case relied on by the appellant is Deering v The State of Western Australia [2007] WASCA 212. In that case, the offender pleaded guilty to one count of digital penetration of a child aged between 13 and 16 and four counts of penile penetration. The offender had been invited to reside at the complainant's home by the complainant's mother. Within one to two months of moving into the home, the offender commenced a relationship with the complainant who was then 13 years of age. The offence of digital penetration was the first offence to occur. The offender had followed the complainant into her bedroom and asked her to lie down on her bed. He then unbuttoned her shirt, unzipped her pants and penetrated her vagina with his finger. Shortly thereafter, the offender committed the first offence of penile penetration. On appeal, the offender's total sentence was reduced to 2 years 6 months' imprisonment. A sentence of 8 months' imprisonment was imposed for the one count of digital penetration. The offender was 23 years of age. The offences occurred in the context of what would have been a boyfriend/girlfriend relationship between the offender and the complainant, were it not for the complainant's age. A lack of consent was not an element of the offences in that case. It was conceded that the offender was the initiator of the sexual activity. The offender pleaded guilty on the fast‑track system. He had not previously been imprisoned.
Wheeler JA (Owen & Miller JJA agreeing) considered that for the digital penetration offence a sentence of 18 months' imprisonment was appropriate. She deducted a little over 30% for the plea of guilty and then after adjusting the sentence for the transitional provisions, imposed a term of 8 months' imprisonment.
The four cases referred to by the appellant indicate that the sentences in those cases for the offence of digital penetration ranged from 8 months to 2 years 8 months' immediate imprisonment.
Relying on these cases alone, the appellant has failed to establish that the ground of appeal has prospects of success. The sentence of 2 years' immediate imprisonment imposed on the appellant was within the range of sentences imposed in those cases. Although the objective circumstances of this case put it at the lower end of the range of seriousness of cases of this type, there were other circumstances which deprived the appellant of credit in the sentencing process which was received by some of the offenders in the cases referred to. For example, the appellant did not plead guilty and his record of prior convictions indicated that there was a need for a personally deterrent sentence.
However, the cases referred to by the appellant are not the only cases in which the appropriate sentence for the offence of digital penetration has been considered. As far back as 1991 in Walley v The Queen (Unreported, WASCA, Library No 8894, 30 May 1991) the court considered the appropriate sentence for a 32‑year‑old man who had been convicted by a jury of one count of digital penetration of the vagina of his 16‑year‑old cousin. On appeal, the sentence of 4 years 6 months' imprisonment was reduced to 3 years' imprisonment. The court made a comprehensive review of the sentencing principles and similar cases before arriving at the appropriate penalty.
In Powell v The State of Western Australia (Unreported, WASCA, Library No 8928, 6 June 1991) the offender was convicted after trial of one count of digital penetration of a 34‑year‑old intoxicated complainant who was asleep. The court reduced an original sentence of 5 years' imprisonment to one of 3 years' imprisonment.
Even taking into account that Walley and Powell were decided well before the transitional provisions and BLM, they nevertheless indicate that the penalties imposed in the more recent decisions relied on by the appellant reflect a long‑established pattern of sentencing for the offence of digital penetration.
A sentence of 2 years' imprisonment, after trial, for one count of digital penetration by an adult male of mature years against a 17‑year‑old girl is not excessive, particularly where, as in this case, the offender, who pleaded not guilty and went to trial, deserved no credit for being of good character and where personal deterrence was a relevant factor in the sentencing process.
I would refuse an extension of time within which to appeal, refuse leave to appeal on the one ground of appeal and dismiss the appeal against sentence.
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