Oreo v The State of Western Australia
[2022] WASCA 62
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: OREO -v- THE STATE OF WESTERN AUSTRALIA [2022] WASCA 62
CORAM: BUSS P
MAZZA JA
MITCHELL JA
HEARD: 1 APRIL 2022 AND 25 MAY 2022
DELIVERED : 3 JUNE 2022
FILE NO/S: CACR 198 of 2021
BETWEEN: JEFFREY LAWRENCE OREO
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram: BURROWS DCJ
File Number : IND 2530 OF 2019
Catchwords:
Criminal law - Appeal against sentence - Appellant convicted on his pleas of guilty of sexual offending against two 14‑year‑old boys - Whether appellant's sentencing counsel was under a misapprehension as to whether an honest and reasonable, but mistaken, belief that one of the boys was over 16 but under 18 years old would be a mitigating factor - Whether a miscarriage of justice arose from that misapprehension - Whether a miscarriage of justice arose from the absence of evidentiary material before the sentencing judge
Legislation:
Criminal Appeals Act 2004 (WA), s 31(4), s 31(5)
Criminal Code (WA), s 204B, s 219(3), s 321
Result:
Extension of time in which to appeal granted
Leave to appeal granted
Appeal allowed
Matter remitted for resentencing
Category: B
Representation:
Counsel:
| Appellant | : | S H King |
| Respondent | : | G N Beggs |
Solicitors:
| Appellant | : | Legal Aid (WA) |
| Respondent | : | Director of Public Prosecutions (WA) |
Case(s) referred to in decision(s):
Deering v The State of Western Australia [2007] WASCA 212
Pelemis v The State of Western Australia [2009] WASCA 151
Riggall v The State of Western Australia [2008] WASCA 69; (2008) 37 WAR 211
RMM v The State of Western Australia [2018] WASCA 183
JUDGMENT OF THE COURT:
Summary
On 12 June 2020, the appellant was sentenced, on his pleas of guilty, to a total effective sentence of 5 years 6 months' imprisonment in respect of 11 offences committed in relation to two 14-year-old complainants, J and T. The offences and individual sentences imposed are indicated on the following table:
| Charge details and maximum penalty | Offence details | Sentence | ||
| Offending against J on 29 August 2019 | ||||
| 1. | Indecently dealing with a child over the age of 13 and under the age of 16 years Criminal Code 321(4), 321(8)(a) Penalty: 7 years' imprisonment | Kissing J on the mouth | 4 months' imprisonment Concurrent | |
| 2. | Touching J on the bottom | 4 months' imprisonment Concurrent | ||
| 3. | Sexual penetration of a child over the age of 13 and under the age of 16 years Criminal Code 321(2), 321(7)(a) Penalty: 14 years' imprisonment | Introducing J's penis into the appellant's mouth | 18 months' imprisonment Concurrent | |
| 4. | Introducing appellant's penis into J' s mouth | 18 months' imprisonment Concurrent | ||
| 5. | Causing J's penis to penetrate the appellant's anus | 3 years' imprisonment (reduced from 3 years 6 months for totality) Cumulative | ||
| 6. | Indecently dealing with a child over the age of 13 and under the age of 16 years | Kissing J on the mouth | 4 months' imprisonment Concurrent | |
| Offending against J on 3 September 2019 | ||||
| 7. | Indecently dealing with a child over the age of 13 and under the age of 16 years Criminal Code 321(4), 321(8)(a) Penalty: 7 years' imprisonment | Kissing J on the mouth | 4 months' imprisonment Concurrent | |
| 8. | Touching J's penis | 12 months' imprisonment Concurrent | ||
| 9. | Sexual penetration of a child over the age of 13 and under the age of 16 years Criminal Code 321(2), 321(7)(a) Penalty: 14 years' imprisonment | Introducing J's penis into the appellant's mouth | 18 months' imprisonment Cumulative | |
| Offending in respect of T on 9 October 2019 | ||||
| 10. | Used electronic communication with intent to procure T, a person under the age of 16 years, to engage in sexual activity Criminal Code 204B(2)(a)(i) Penalty: 5 years' imprisonment | Sent text messages arranging to meet T for sexual intercourse | 12 months' imprisonment Concurrent | |
| 11. | Possessed child exploitation material, with the intention of distributing the material. Criminal Code 219(3) Penalty: 10 years' imprisonment | Attempted to send a digital image of T's penis to an unknown person referred to as 'Callum' | 12 months' imprisonment (reduced from 18 months for totality) Cumulative | |
| Total Effective Sentence | 5 years 6 months' imprisonment | |||
The appellant was made eligible for parole. The total effective sentence was backdated to commence on 28 May 2020 to take account of time spent in custody on remand.
On 23 December 2021, the appellant appealed against the above sentences and sought an extension of time in which to appeal. The appellant's grounds of appeal include ground 5, added at the hearing of the appeal, to the effect that a miscarriage of justice arose at the sentencing hearing as a result of defence counsel's erroneous understanding that:
(a)the appellant's conduct in relation to J was criminal in that J was under the age of 18 years; and
(b)consequently, any belief by the appellant that J was aged at least 16 years would not be mitigating.
For the following reasons, in our view ground 5 is established and it is unnecessary to determine the other grounds of appeal. In our view, the appeal should be allowed, the sentences set aside and the matter remitted for resentencing by a different sentencing judge after necessary further factual findings have been made.
Circumstances of offending
The sentencing judge made the following findings as to the circumstances of the appellant's offending.
Offending against J
At the time of the offending, J was a 14-year-old boy and the appellant was 48 years old. The appellant met J on a dating application called 'Scruff'. J's profile on that site indicated that he was born in 1999 (which would have made him about 20 years old).[1]
[1] Sentencing ts 24.
After receiving J's picture, the appellant asked J whether he was 'sure' he was 18. J responded that he was 16 years old, which the appellant indicated was 'okay'. The appellant asked J if he still went to school, and J responded that he did. The appellant and J communicated between 22 August 2019 and 29 August 2019 about meeting for sex.[2]
[2] Sentencing ts 12, 24.
The sentencing judge found that the appellant was aware at all relevant times that there was a significant likelihood that J was under the age of 16 years.[3] The sentencing judge drew this inference from the fact that the appellant was aware that J was going to high school and lived with his mother, that J attended their meetings wearing his school uniform, and from a message exchange on 23 August 2019.[4] In those messages, the appellant described a sexual interaction he had, in his early 30s, with a 14‑year‑old boy. The appellant then asked J whether he thought worse of the appellant. J indicated that he did not. The appellant responded, 'Because you are aware I can get in serious trouble even fucking with you … because of the age difference'.[5]
Offending on 29 August 2019
[3] Sentencing ts 30.
[4] Sentencing ts 29 - 30.
[5] White AB 143 - 144.
Counts 1 - 6 occurred at a public toilet in Wanneroo, where the appellant had arranged to meet J between 3 pm and 4 pm on 29 August 2019. J arrived wearing his school jumper and top.[6]
[6] Sentencing ts 12, 24.
Once inside the toilet stall, the appellant kissed J on the mouth (count 1). While kissing, the appellant and J removed their pants and the appellant grabbed J's bottom (count 2). They both removed their underpants and the appellant sucked on J's penis with his mouth (count 3). The appellant then applied lubricant to his penis and J's penis, and J sucked the appellant's penis with his mouth (count 4). J then penetrated the appellant's anus with his penis (count 5). J and the appellant then kissed on the mouth before leaving the toilet stall (count 6).[7]
Offending on 3 September 2019
[7] Sentencing ts 12 - 13, 24 - 25.
Counts 7 ‑ 9 occurred on 3 September 2019. After the meeting on 29 August 2019, the appellant and J continued to message each other about meeting for sex. On Sunday 1 September 2019, they arranged to meet on the following Tuesday at a location near J's school. On 3 September 2019, the appellant picked J up in his car before J went to school. J was wearing his school top and jumper and was seated in the front passenger seat.[8]
[8] Sentencing ts 13, 25.
After parking the car, the appellant kissed J on the mouth (count 7) and touched J's penis over the top of his clothes (count 8). J pulled his pants down and pulled out his penis. The appellant sucked J's penis with his mouth until he ejaculated into the appellant's mouth (count 9). The appellant then dropped J back near his school.[9]
[9] Sentencing ts 13, 25.
After this incident, the appellant and J did not meet up again. On the morning of 3 September 2019, J's mother reported to police that she had found text messages on J's phone about meeting men for sex. J disclosed the appellant's offending in a child witness interview on 9 September 2019. He identified the appellant from a digiboard on 12 September 2019.[10]
[10] Sentencing ts 13 25.
Offending against T
At the time of the offending, T was a 14-year-old boy and the appellant was 49 years old. The appellant met T through a dating application called 'Grindr', and they communicated by text message. The appellant knew that T was 14 years old as T had told him in one of those messages.[11]
[11] Sentencing ts 14, 25.
On 9 October 2019, the appellant sent multiple sexually explicit text messages to T and arranged to meet T on 10 October 2019, implicitly for the purpose of engaging in sexual activity (count 10).[12]
[12] Sentencing ts 14, 25 - 26.
During the exchange of text messages with T, the appellant asked T to send him a photo of T's penis. T sent a photo of his penis to the appellant on 'Grindr'. After receiving the photo, the appellant then messaged another phone contact with the name 'Callum', stating, 'I have a horny 14-year-old for you tomorrow'. Shortly after this message, the appellant attempted to send 'Callum' a copy of the photo of T's penis, but the message failed to send (count 11).[13]
[13] Sentencing ts 14 - 15, 26.
The meeting with T on 10 October 2019 did not occur because the appellant was arrested that morning at 8.30 am for the offending against J. The appellant's phone was seized. Police identified evidence of the offending against T on the appellant's phone. T undertook a child witness interview on 22 October 2019, and the appellant was arrested for the offending against T on 6 November 2019.[14]
[14] Sentencing ts 14 - 15, 25 - 26.
Personal circumstances
The appellant was 50 years old at the time of sentencing. He is the middle of three children, and maintained contact with his sister. The appellant lived in Albany with his parents until the age of 22. His parents were deceased at the time of sentencing. The appellant's father was alcohol‑dependent, and as a child the appellant witnessed his father's assaults on his mother. The appellant described being loved and cared for by his parents and was not the subject of any form of abuse.[15]
[15] Sentencing ts 26.
The appellant completed year 10 of high school in Albany, and had worked in various occupations including as a truck driver at the time of the offending. He had a history of amphetamine and methamphetamine abuse. The sentencing judge noted that the appellant ceased using methamphetamine in October 2019 when he was arrested, but also noted a number of convictions for drug-related offending which post-dated his arrest for the current matters.[16]
[16] Sentencing ts 26 - 27, 28.
The appellant 'came out' as a homosexual man about 3 years prior to the date of sentencing. He has had difficulties dealing with his sexuality and acknowledging that he is a homosexual man.[17]
[17] Sentencing ts 27.
The sentencing judge did not accept that the appellant had taken full responsibility for his offending behaviour. Her Honour did not accept that the appellant had insight as to the impact of his behaviour upon the complainants or that he was remorseful. A psychologist's report, which the sentencing judge accepted, assessed the appellant as being at a high risk of reoffending.[18]
[18] Sentencing ts 27 - 28.
The appellant had a prior criminal record of driving offences for which he had received fines.[19]
[19] Sentencing ts 28.
A reference from the appellant's former football coach spoke of the downward spiral in the appellant's life following his addiction to substances. A reference from the appellant's sister indicated that they remained very close and that she was very supportive of him.[20]
[20] Sentencing ts 28 - 29.
Sentencing judge's approach
After referring to the above matters, the sentencing judge noted the following aggravating features of the appellant's offending:[21]
1.The offending involved two different 14-year-old males.
2.The offending and surrounding text messages indicated that the appellant had a sexual interest in underage males and was willing to act on that interest by seeking to meet children and engage in sexual activity.
3.The offending was premeditated.
4.The offending against J included unprotected penetrative sexual activity.
5.There was a significant age disparity between the 49-year-old appellant and the 14-year-old complainants.
6.The appellant sent messages and intended to distribute the image of T's penis in an attempt to enlist other adult males to engage in sexual activity with T.
7.The appellant suggested that J use illicit drugs as a sexual aid and suggested that he could bring illicit drugs for J to use while they had sex.
8.The appellant was aware that there was a significant likelihood that J was under the age of 16, and was aware that T was 14 years old.
[21] Sentencing ts 29 - 30, 32.
The sentencing judge accepted that the appellant did not coerce J, who willingly participated. However, the judge found that J was plainly vulnerable by reason of his age and lack of maturity.[22]
[22] Sentencing ts 29.
The sentencing judge also noted the following mitigating factors:[23]
1.The appellant entered pleas of guilty at the earliest reasonable opportunity for which her Honour gave the maximum discount of 25% under s 9AA of the Sentencing Act 1995 (WA).
2.The appellant's pleas of guilty represented some acceptance of responsibility.
3.The appellant had a sound work history.
4.The appellant had the positive support of his relationship with his sister.
[23] Sentencing ts 30.
The sentencing judge noted that sexual offences against children are serious by reason of the importance of protecting vulnerable children from exploitation and the corresponding need for punishment and specific and general deterrence. The judge agreed with the concession by counsel for the appellant that the seriousness of the offending meant that the only appropriate sentencing disposition was terms of imprisonment to be immediately served. Her Honour then imposed the sentences referred to in the table at [1] above. In the course of doing so, she referred to the totality principle and concluded that some accumulation was appropriate to reflect the fact that there were two separate complainants and three separate incidents.[24]
[24] Sentencing ts 30 - 32.
Ground 5: miscarriage of justice arising from counsel's misapprehension
The appellant was given leave to add ground 5, which had been formulated by the court, at the hearing of the appeal. Ground 5 contends that a miscarriage of justice arose at the sentencing hearing as a result of defence counsel's erroneous understanding that:
(a)the appellant's conduct in relation to J was criminal in that J was under the age of 18 years; and
(b)consequently, any belief by the appellant that J was aged at least 16 years would not be mitigating.
Programming orders were made for the parties to file written submissions in relation to this ground after the conclusion of the appeal hearing.
Case presented at sentencing
A presentence report and a psychological report on the appellant which were before the sentencing judge indicated that the appellant had asserted that he thought J was 17 or 18 years old.[25]
[25] Psychological report, 27 January 2020, par 13; presentence report, 3 February 2020, page 1.
Counsel representing the appellant at sentencing did not advance a contention that the appellant honestly, or honestly and reasonably, believed that J was 16 years or older. The facts read by the prosecutor were admitted.[26] Counsel accepted that the fact that the appellant took J to and from school was an aggravating factor, and 'also flies in the face of some things that he said about the age of the complainant'.[27]
[26] Sentencing ts 16.
[27] Sentencing ts 17.
Counsel also observed:[28]
The assertion to the author of the report that he had no sexual interest in underage males is clearly countered by the three different times of offending against two different people.
And whilst one might begin by saying, well, on the computer identity 1999 made the person 20, when he gets to the location he gets told by the person that they're 16, clearly a child, and to then engage in those activities, regardless of what Mr Oreo says, by inference he's got an interest in children.
I would suspect, your Honour, that that could be the only finding of fact you would make, and we're in your hands in that regard.
Even as late as yesterday, your Honour, Mr Oreo said that looking at the complainant physically, the first complainant, he thought he was 17 or 18. 17 you can't do it, and in any event, if he was 18 we have to accept it's an aggravating feature of this offending that there is a significant age gap between these people. (emphasis added)
Counsel's misapprehension
[28] Sentencing ts 20.
The appellant's sentencing counsel has died since the sentencing hearing, and so is not available to give evidence as to his understanding at the time of sentencing. The appellant's counsel was an experienced criminal lawyer, and we would not lightly attribute a misunderstanding of basic principle to him. However, the inference which appears from the transcript quoted above was that counsel did not appreciate that the fact that the appellant honestly and reasonably believed J to be 16 years or older, if established, would constitute a mitigating factor.
An honest and reasonable but mistaken belief that the child concerned was of or over the age of 16 years is not generally a defence to the sexual penetration and indecent dealing offences created by s 321(2) and s 321(4) of the Code. A limited defence is created by s 321(9) of the Code, but that defence only applies if the accused proves that he or she believed on reasonable grounds that the child was of or over the age of 16 years and was not more than 3 years older than the child. As the appellant was some 34 years older than J at the time of the offending, this defence was not available to him.
However, notwithstanding that it does not provide a defence to a charge under s 321(2) or s 321(4) in the circumstances of the present case, an honest and reasonable belief that J was of or over the age of 16 years could, if established, have constituted a significant mitigating factor.
The potential mitigating effect of an honest and reasonable but mistaken belief is illustrated by the decision of this court in Riggall v The State of Western Australia.[29] In that case the 22-year-old offender engaged in consensual sexual activity with a person who he honestly and reasonably believed to be 19 years old but who in fact was only 14 years old. Wheeler JA (Buss and Miller JJA relevantly agreeing) referred to an earlier observation she had made in Deering v The State of Western Australia:[30]
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.
[29] Riggall v The State of Western Australia [2008] WASCA 69; (2008) 37 WAR 211.
[30] Deering v The State of Western Australia [2007] WASCA 212 [17] - [18], quoted in Riggall at [19].
Wheeler JA also observed that, even where a young person between 13 and 16 years of age does appear to wish to engage in sexual activity, there is a duty cast upon others to refrain from encouraging or acting upon those wishes. The more mature the other person, the greater the degree of self-control which should be demanded of them.[31] Her Honour also said:[32]
[T]he presence, or otherwise, of an element of 'abuse' is a concept of considerable importance in relation to sentencing for offences of this type. The greater the element of abuse, generally evidenced by matters such as significant disparity in age, or use of force, or other types of pressure, or grooming behaviour, the greater the criminality. Generally, a sensible exercise of the prosecutorial discretion will have the result that, where there is not even arguably an element of abuse, a matter will not come before the court for sentence.
For completeness, however, it is important to stress, and stress strongly, that the views which I have expressed above are not to be taken as an invitation to offenders, in the general run of cases, to attempt to find, somewhere in the response to a sexual advance made by an immature person, some element of 'consent' which may be regarded as mitigating. Parliament has clearly recognised the vulnerability of children to attempts to procure consent, and it is unlikely that consent will exist in any relevant sense where for example the child is very young, or plainly very immature, or where the offender is in a family relationship with the child, or occupies some other position of authority in relation to him or her.
[31] Riggall [21].
[32] Riggall [48] - [49].
Wheeler JA regarded the criminality of the offending in Riggall as being at the lowest level, where the offender reasonably believed that the complainant had sought a sexual relationship with him, was a person whose maturity was roughly equivalent to his own and had no reason to know or believe that the complainant was a child or that his conduct would be in breach of the law. He ceased the sexual activity immediately upon becoming aware of the complainant's true age.
Even on the most charitable view in favour of the appellant, the present case is clearly different from Riggall. There was clearly a significant age disparity between the appellant and J, and it was obvious to the appellant that J was still in school. While some high school students are 18 years old, the appearance of J in his school uniform combined with his disclosure that he was 16 years old made it apparent that J was under 18 years of age.
Notwithstanding these features however, it would still have been a substantial mitigating factor if the appellant had proved that he honestly and reasonably believed that J was 16 years or older. There remains a significant element of abuse in a mature adult using dating applications to engage with children who he or she knows or suspects to be under the age of 16 years in a way that encourages the child to engage in sexual activity with the adult. That is so even when the child has sought out the contact and expresses a desire to engage in sexual activity. The element of abuse is not present, at least to the same extent, where the adult honestly and reasonably believes that a person of or over the age of 16 years has sought out the sexual contact.
Miscarriage of justice
It is therefore apparent that counsel erroneously took the view that the fact that the appellant honestly and reasonably but mistakenly believed J to be of or over the age of 16 years, if established, would not have provided any substantial mitigation. It is also apparent from the psychologist's report, the presentence report and the instructions relayed by sentencing counsel to the sentencing judge that the appellant was contending that he thought that J was of or over 16 years of age.
Had counsel sought to establish that the appellant honestly and reasonably believed J to be of or over the age of 16 years, then a trial of the issues would have been required to establish that fact (which the State evidently would have contested).
If an offender seeks to have the sentencing judge take a fact or circumstance into account when passing sentence, it will be for the offender to bring it to the judge's attention and, if necessary, call evidence about it. Having regard to s 15 of the Sentencing Act, the calling of evidence will only be required if the asserted fact or circumstance is disputed or if the judge is not prepared to act on the assertion.[33]
[33] RMM v The State of Western Australia [2018] WASCA 183 [201] and cases there cited.
In the present case, a miscarriage of justice arose when, because of an evident misapprehension of the law, counsel did not advance a mitigating circumstance which the appellant asserted existed.
In answer to this ground, counsel for the State contends that the sentencing judge did not act upon any erroneous legal misunderstanding on the part of the appellant's sentencing counsel, or accept the factual assumption on which the legal misunderstanding was founded. So much may be accepted, but it does not follow that there was no miscarriage of justice in the circumstance of this case. The miscarriage in this case does not arise from any error or omission by the sentencing judge, who made appropriate findings on the material before her. The point is that the findings made by the sentencing judge may have been different if the appellant's sentencing counsel had asserted and sought to prove that the appellant had an honest and reasonable but mistaken belief about the complainant's age.
The State accepted that it is reasonable to conclude that the sentencing judge would have afforded the appellant mitigation on account of him honestly and reasonably believing the complainant to be 17 - 18 years old if she had accepted that fact. However, her Honour was never called upon to make that finding because, due to counsel's evident misapprehension, the appellant never sought to prove such an honest and reasonable belief.
The State contends that it is difficult to see how the appellant would prove that he honestly and reasonably believed J to be of or over the age of 16 years. The State points to the inconsistency between the appellant's statements that he thought J was 17 or 18 years old and the admitted fact that J told the appellant he was 16 years old.
However, without hearing evidence from the appellant, we cannot conclude that he would have had no reasonable prospect of proving an honest belief that J was of or over the age of 16 years on the balance of probabilities. If he did so, then there was nothing in the material before the sentencing judge to demonstrate that there could have been no reasonable basis for such a belief. The appearance of J in the child witness interview at about the time of the offending was not obviously of a child under the age of 16 years. As we have noted, it was an admitted fact that J had told the appellant he was 16 years old. While we accept that the appellant may have faced some challenges in proving an honest belief, we cannot conclude that he had no reasonable prospect of doing so. The fact that counsel's misapprehension effectively deprived the appellant of the opportunity to attempt to prove that fact constitutes a miscarriage of justice in these circumstances.
Finally, the State submits that the appellant's argument on this ground fails to consider the rationale underpinning the principle that an honest and reasonable belief that a complainant is of the age of consent is deserving of mitigation. The State says that implicit in a submission that mitigation ought to be afforded to an offender who establishes that they honestly and reasonably believed a complainant was of the age of consent is the suggestion that, had the offender known the complainant's real age, they would not have engaged in sexual conduct with them.
The State says that, in the present case, the unchallenged finding was that the appellant had a sexual interest in underage boys. This was demonstrated not only by the conversations the appellant engaged in with J regarding sexual contact with a 14-year-old boy but, significantly, by the sexual offending in respect of counts 10 and 11 with a complainant the appellant knew to be 14 years old. The State submits that, given the appellant's lack of compunction about engaging in sexual conduct with a boy he knew to be 14 years old, there is little merit in a suggestion that had he known J's real age, he would not have offended as he did. Therefore, the State contends, the degree of mitigation that could be afforded to the appellant had his counsel pursued a submission that he honestly and reasonably believed J to be of or over the age of consent was nominal at best.
We accept that the matters referred to by the State may reduce the weight to be given to any honest and reasonable belief as to J's age which the appellant is proved to have had. However, we do not accept that the mitigatory effect of that circumstance would be only nominal. The mitigating effect goes not only to whether the appellant would have engaged in the offending conduct without that belief, but to the existence and extent of the element of abuse as that concept was explained in Riggall. In our view, if the appellant is proved to have honestly and reasonably believed J to be of or over the age of 16 years, and that J had been seeking out sexual contact with the appellant in which the appellant could lawfully engage, then that would be a material mitigating factor.
For these reasons, we are satisfied that the misunderstanding of defence counsel gave rise to a miscarriage of justice in all the circumstances of this case.
Whether a different sentence should have been imposed
Section 31(4)(a) of the Criminal Appeals Act 2004 (WA) provides that this court may allow the appeal against sentence if it is of the opinion that a different sentence should have been imposed. Section 31(4)(a) has been construed as empowering this court to allow an appeal where insufficient facts have been found at first instance if, in its opinion, on the facts most favourable to an appellant on a rehearing, a different sentence should have been imposed.[34] If this court is satisfied that a different sentence should have been imposed it will allow the appeal and either impose a new sentence that is either more or less severe or send the charge back to the court that imposed the sentence to be dealt with further.[35]
[34] Pelemis v The State of Western Australia [2009] WASCA 151[18]; RMM [229].
[35] Section 31(5) of the Criminal Appeals Act.
In our view, if it were established on resentencing that the appellant honestly and reasonably but mistakenly believed J to be of or over the age of 16 years then a different, lesser, sentence should have been imposed.
After the initial hearing of the appeal, the parties filed written submissions in relation to ground 5 pursuant to orders made by the court at the conclusion of the hearing. The appellant's supplementary written submissions in reply were ambiguous as to the orders wanted if ground 5 was established. Following a hearing on 25 May 2022 to clarify that matter, the appellant's counsel advised the court, by letter dated 31 May 2022, that the appellant sought a trial of the issues in the event that ground 5 was established.
As this court is not in a position to make a factual finding as to the appellant's alleged honest and reasonable belief on the material before it, it is appropriate for the matter to be sent back to the District Court to be dealt with further. As it is desirable that resentencing be by a judge who has not previously made factual findings in relation to the appellant, resentencing should be undertaken by a different judge.
Other grounds of appeal
Given our conclusion in relation to ground 5, and the fact that the factual basis for sentencing remains to be determined in a trial of the issues, it is unnecessary and inappropriate for this court to determine the other grounds of appeal. On resentencing, the judge should consider the matter afresh without regarding himself or herself as in any way constrained by the original sentencing judge's disposition even if the factual findings are ultimately substantially the same as those made by her Honour. Even on those factual findings, the sentences imposed by the original sentencing judge may be regarded as high (whether or not they may also be regarded as manifestly excessive). Further, on resentencing it may be necessary to take account of events which have transpired since the original sentencing.
Orders
While the appellant was sentenced on 12 June 2020, he did not file an appeal notice until 23 December 2021. He therefore requires an extension of time in which to appeal. The delay is significant, but is explained by the legal advice he initially received from his sentencing counsel after sentencing. We are satisfied that an extension is required in the present case to avoid a miscarriage of justice.
For the above reasons, we would make the following orders in this appeal:
1.The appellant's application for an extension of time within which to appeal is granted.
2.Leave to appeal is granted on ground 5.
3.Leave to appeal is refused on the other grounds.
4.The appellant's application in an appeal filed on 10 February 2022, seeking leave to adduce additional evidence in the appeal, is granted.
5.The appeal is allowed.
6.The sentences imposed by the District Court of Western Australia on indictment IND 2530 of 2019 are set aside and the matter is sent back to that court to be dealt with further by a different sentencing judge.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
JB
Associate to the Honourable Justice Mitchell
3 JUNE 2022
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