Miles v The State of Western Australia

[2007] WASCA 258

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT  :   THE COURT OF APPEAL (WA)

CITATION:   MILES -v- THE STATE OF WESTERN AUSTRALIA [2007] WASCA 258

CORAM:   MILLER JA

HEARD:   16 NOVEMBER 2007

DELIVERED          :   22 NOVEMBER 2007

FILE NO/S:   CACR 107 of 2007

BETWEEN:   JARED RHYS MILES

Appellant

AND

THE STATE OF WESTERN AUSTRALIA
Respondent

ON APPEAL FROM:

Jurisdiction              :  DISTRICT COURT OF WESTERN AUSTRALIA

Coram  :KEEN DCJ

File No  :IND 409 of 2007

Catchwords:

Leave to appeal - Sexual offences - Sexual penetration of a child over the age of 13 years and under the age of 16 years (two counts) - Effective sentence of 21 months' imprisonment - Appellant 22 years of age and complainant 14 years of age - Whether sentence manifestly excessive

Legislation:

Community Protection (Offender Reporting) Act 2004 (WA), s 6, s 9

Result:

Leave to appeal refused

Category:    B

Representation:

Counsel:

Appellant:     Mr S B Watters

Respondent:     No appearance

Solicitors:

Appellant:     Fitzpatrick Lawyers Pty Ltd

Respondent:     Director of Public Prosecutions (WA)

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

Church v The State of Western Australia [2007] WASCA 215

Deering v The State of Western Australia [2007] WASCA 212

Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321

VIM v The State of Western Australia [2005] WASCA 233; (2005) 31 WAR 1

1. MILLER JA:  The appellant was sentenced on 14 August 2007 to an effective term of imprisonment of 21 months with eligibility for parole.  He was indicted on two counts of sexual penetration of a child over the age of 13 and under the age of 16.  The first count alleged sexual penetration by way of oral sex (cunnilingus) and the second sexual penetration by way of penile penetration. 

2. The appellant was 22 years of age at the time of the offence and the complainant 14.  On 19 and 20 August 2006, the appellant went out with the complainant.  Alcohol was consumed and afterwards the appellant took the complainant to his house, where he kissed her, undressed her, performed cunnilingus on her and then penetrated her vagina with his penis.  He ejaculated in her. 

3. The learned sentencing judge noted that the appellant was older than the complainant 'by more than 50 per cent'.  Although the appellant had initially contended to police that the complainant had told him she was 16 years of age, the learned sentencing judge noted that witnesses had said that the complainant was only 14 years of age.

4. The learned sentencing judge took the view that the appellant had taken advantage of the complainant at a time when it must have been patently obvious to him that he was out with a young girl and drinking with her.  He noted that the offence was not spontaneous, but the appellant had been driving around for some time before he took the complainant back to his house.

5. The learned sentencing judge noted the mitigating factors.  These included a fast‑track plea of guilty and an admission of wrongdoing when interviewed by police.  Although the appellant had at first denied sexual intercourse with the complainant, he later admitted to it when told that DNA evidence would be forthcoming. 

6. The appellant had no prior record of convictions and a psychological report indicated that he expressed some remorse for what he had done and accepted 'some of the blame'. 

7. At the time of sentencing, the appellant was 23 years of age.  He had a girlfriend who was 17 years of age.  The learned sentencing judge noted that the girlfriend was some six years his junior and that it seemed to be consistent with his behaviour that he chose younger friends and partners.  Various other factors were considered by the learned sentencing judge, who gave full consideration to the psychological report which was before him. 

8. In sentencing, the learned sentencing judge indicated that it was necessary to have regard to the public expectation and conscience that proper punishment should be imposed for offences of this nature.  Deterrence, both general and specific, was mentioned.  The learned sentencing judge said:

   The public and persons in close and perhaps vulnerable positions such as this young girl was to you, are entitled to have an expectation of safety, are entitled to be and feel safe from acts such as this, and that expectation should be upheld.

9. The learned sentencing judge considered the sentencing options open to him.  He appreciated that a sentence of imprisonment was a sentence of last resort.  He appreciated that a sentence of imprisonment if imposed could be suspended.  He said:

   A term of imprisonment is to be imposed as a penalty of last resort and a court must not impose a term of imprisonment unless either the seriousness of the offence is such that only imprisonment can be justified or protection of the community requires it.  The penultimate sentence is the suspended sentence; that is, the ultimate term is immediate imprisonment and the next one down is the suspended sentence.  Again, that should not be imposed unless imprisonment would be the only appropriate option, it were not possible to impose a suspended term.

10. Specific reference was made to the decision in Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321. The learned sentencing judge then said:

    In my view, the only appropriate sentencing option, in view of the seriousness of this offence, is an immediate term of imprisonment not a suspended sentence.  In coming to that conclusion, Mr Miles, I have taken into account the facts of this case; your plea of guilty at an early stage; the seriousness of the offence; the submissions made by your counsel; the psychological report; the need for deterrence; the aggravating and mitigating factors and that statutory maximum term to which I have referred.

    So, Mr Miles, I propose to sentence you to a term of imprisonment: on count 1, to a period of 36 months in prison, and on count 2, 48 months.  But I now reduce each of those terms by one-third to take account of your plea of guilty at a very early stage by way, I am told, is fast-track plea, and that will bring down, in round terms, those sentences to 24 months and 32 months.  Further, in accordance with the sentencing legislation requirements, I am required to reduce the term by a further one‑third which will bring them down to 16 months and 21 months rounded down.

    So on count 1, the term will be 16 months' imprisonment; on count 2, 21 months' imprisonment, each term to be served concurrent. Mr Miles,  I will make you eligible for parole.

11. The appellant seeks leave to appeal from the sentences imposed on one ground.  It is as follows:

    Ground 1

    1.The sentencing Judge's discretion miscarried when he determined to impose a term of immediate imprisonment, which sentence was manifestly excessive in all the circumstances;

    Particulars:

    a)the offences involved only one complainant, committed on one night;

    b)the Community Protection (Offenders Reporting) Act 2004 Act ('the Act') provides for a regime to protect, amongst others, children;

    c)the Appellant ought to have been subjected to obligations under the Act and received a suspended term of imprisonment.

12. In summary, the ground of appeal contends that the sentences of imprisonment were excessive because they were ordered to be served immediately, and because of three special factors.  The first particular relates to the fact that the offences involved only one complainant and occurred on the one night.  This fact was taken into account by the learned sentencing judge in ordering concurrency of sentences.  It could not alone mean that a sentence of imprisonment to be served immediately was manifestly excessive.

13. The second and third particulars contend that because of the provisions of the Community Protection (Offender Reporting) Act 2004 (WA) (the Act), there is a regime for the protection of children which, if undertaken by the appellant, would justify a suspended sentence.

14. I cannot accept this proposition. The obligations that the appellant must adhere to are an incidental aspect of the sentences imposed. An order under the Act was mandatory. The appellant became a 'reportable offender' by reason of his convictions: s 6 and s 9 of the Act. Reporting obligations are contained within pt 3 of the Act and there is a regime required of the appellant. The purpose of it is seen from the long title to the Act, which reads:

    An Act to require certain offenders who commit sexual or certain other serious offences to keep police informed of their whereabouts and other personal details for a period of time to reduce the likelihood that they will re‑offend and to facilitate the investigation and prosecution of any future offences that they may commit, to enable courts to make orders prohibiting certain offenders from engaging in specified conduct, and for related purposes.

15. I do not consider that the appellant can argue that the reporting conditions under the Act alone necessitated that he receive suspended sentences of imprisonment.

16. The ground of appeal generally challenges the length of the effective term of imprisonment to be served by the appellant.  Whilst there is no general rule that sentences of imprisonment to be served immediately must be imposed in these cases, there does seem to be a consistent approach to them.  They do, in my view, require sentences of imprisonment to be served immediately, because of the importance placed by the legislature on the protection of young girls who may not be able fully to comprehend or cope with the emotional consequences of sexual behaviour, notwithstanding that it is consensual.

17. In Deering v The State of Western Australia [2007] WASCA 212, the appellant had pleaded guilty to one count of digital penetration and four counts of penile penetration of a child aged between 13 and 16 years. These counts had occurred over a period of time. The appellant was 23 years of age and had formed a relationship with a 13‑year‑old girl. She was residing in the same house as the appellant. Wheeler JA (with whom Owen and Miller JJA agreed) observed:

    ... attention [should be given] to the legislative purpose of the prohibition of sexual penetration of a child between the ages of 13 and 16.  It is, no doubt, undesirable that young people should embark upon sexual activity at an age at which they may be unable to fully comprehend or to cope with the social and emotional consequences of that activity.  To that extent, the legislation is intended to protect young people 'from themselves'. 

    However, the legislation is also, and, in my view, more importantly, directed to ensuring that those who do not consent to sexual activity are not required to engage in it.  In this context, it is recognised that the capacity of a person in this age group to resist moral, social, emotional or other pressure from a person more mature than themselves may be very limited.  I set out some of the legislative background in Marris v The Queen [2003] WASCA 171. At [13] of that decision, I noted the comment by the Hon J M Berinson, the then Attorney-General, that ' ... the clear intention and target is not sexual activity as such, but sexual activity involving some element of abuse'. I said there, and I repeat, that that is a concept of considerable importance in relation to sentencing in respect of offences of this kind. The greater the element of abuse, as evidenced by matters such as disparity in age, or the use of force, or other types of pressure, or of a pattern of 'grooming' behaviour, or a betrayal of trust, the greater the culpability. [17] ‑ [18]

18. Wheeler JA then dealt with the case before the court in these terms:

    As against those matters, however, he was a young man who had promptly acknowledged his offending, had pleaded guilty on the fast-track, was to some degree immature, appeared genuinely to have cared for the complainant and had a number of referees prepared to speak positively of him, including his employer.  He had not previously been imprisoned and, as his Honour noted, it is a serious matter to send a young person to gaol for the first time. 

    In my view, the sentences imposed by his Honour are approximately those which would have been appropriate prior to making an allowance for the plea of guilty and prior to an adjustment for the transitional provisions.  In respect of counts 2 to 5 inclusive, it would be my view that a sentence of 4 years would be appropriate prior to adjustment for the fast-track plea and for the transitional provisions.  Allowing approximately 30% for the fast-track plea leads to a term of 33 months, which, after allowance for the transitional provisions, is 1 year 10 months in each case.  In relation to count 1, I would have considered 18 months appropriate, which, after allowing a little over 30% for the plea and then adjusting for the transitional provisions, gives a term of 8 months. 

    Normally, given that the offences were so close in time and that count 1 appears to have been part of the same sexual episode as count 2, it would have been appropriate to order that the sentences in relation to counts 1 and 2 be served concurrently.  However, I think it is appropriate to adopt the sentencing structure used by the learned sentencing judge.  Count 1 was the beginning of the appellant's sexual activity with the complainant, and was one of the offences which was, as I have noted, certainly not at her instigation.  It would be appropriate that that count be served cumulatively.  In my view, the overall objective criminality would be appropriately marked by ordering that the sentences in respect of counts 2 to 5 inclusive be concurrent and that the sentence in respect of count 1 be served cumulatively upon them.  That would give a total term of imprisonment of 2 years and 6 months.  [21] ‑ [23]

19. Wheeler JA then considered the question of suspension of sentence, saying:

    I should add that I have considered whether it would be appropriate to suspend that term.  I have had regard again to all of the various factors to which I have referred.  However, it seems to me that the 10-year disparity in age between the appellant and the complainant, and the appellant's repetition of his offending in circumstances where he appreciated it to be unlawful, and where he had, over the months of the relationship, had an opportunity to consider how he could put an end to it, requires that the term should be served by way of immediate imprisonment.  [24]

20. The ultimate sentence imposed by the Court of Appeal in Deering was similar to that which the learned sentencing judge imposed in this case.  In Deering, there were a number of distinguishing features.  These have been adverted to by counsel for the appellant in a written submission delivered at my request after the hearing of the application for leave.  They include the fact that the offences were repeated over a period of nearly a year and were representative charges.  However, the age difference between the parties was very similar and the offender in Deering had very good antecedents.

21. Nothing said in any of the cases should be taken to mean that a sentencing judge may not impose a non‑custodial sentence if the individual case requires such a disposition (VIM v The State of Western Australia [2005] WASCA 233; (2005) 31 WAR 1 at [287]); but the fact remains that the present offences were committed by the appellant in the knowledge that the complainant was only 14 years of age and at a time when he was 22 years of age. The offences were committed on the one night, but the offences were serious and the legislative intent of the sections constituting the offences is to ensure that young girls such as the complainant 'need to be protected from themselves' in situations such as here arose.

22. In Church v The State of Western Australia [2007] WASCA 215 Wheeler JA (with whom Buss JA agreed) referred to Deering and to the aim of the legislation which prohibits sexual activity in relation to children between the ages of 13 and 16 years:

    However, as I noted in Deering, the more important aspect of legislation concerned with the prohibition of sexual activity in relation to children between the ages of 13 and 16 is that it is directed to ensuring that those who do not give free and informed consent to sexual activity are not required to engage in it.  The legislation recognises that the capacity of a person in that age group to resist moral, social, emotional or other pressure, particularly from a person more mature than themselves, may be very limited.  [6]

23. The case was very different.  The appellant was charged with two counts of indecent dealing and one count of sexual penetration of a child over the age of 16 years and under the age of 18 years.  The sexual penetration was by way of digital penetration.  He was 48 years of age and the complainant was 16 years of age.  It was a substantial age difference. 

24. Although the facts of every case differ, and although a sentence of suspended imprisonment (with or without conditions) is always available in every case, it seems to me that the sentences of finite imprisonment imposed by the learned sentencing judge in the present case were inevitable and within the range of sentences that could have been imposed.  Sentences of imprisonment to be served immediately were called for because of the seriousness of the offences committed.  In my view, the ground of appeal upon which the appellant seeks to rely in his application for leave to appeal has no merit and no reasonable prospects of success.  I would therefore dismiss the application for leave to appeal.