Plumley v The State of Western Australia - [2018] WASCA 33

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE COURT OF APPEAL (WA)

CITATION: PLUMLEY -v- THE STATE OF WESTERN AUSTRALIA [2018] WASCA 33

CORAM: BUSS P
BEECH JA
HALL J

HEARD: 16 FEBRUARY 2018

DELIVERED : 19 MARCH 2018

FILE NO/S: CACR 139 of 2017

BETWEEN: PETER ROBERT PLUMLEY
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent

ON APPEAL FROM:
Jurisdiction              :  DISTRICT COURT OF WESTERN AUSTRALIA
Coram  :BOWDEN DCJ
File No  :IND 1731 of 2016

Catchwords:

Criminal law - Appeal against sentence - Attempted sexual penetration without consent - Whether sentence of 4 years 3 months' immediate imprisonment manifestly excessive

Legislation:

Criminal Appeals Act 2004 (WA), s 41(2)
Criminal Code (WA), s 325, s 371, s 378, s 552

Result:

Leave to appeal granted
Appeal allowed
Appellant resentenced

Category: B

Representation:

Counsel:

Appellant: Mr A J Robson
Respondent: Mr J A Scholz

Solicitors:

Appellant: Legal Aid (WA)
Respondent: Director of Public Prosecutions (WA)

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

Barbaro v The Queen [2014] HCA 2; (2014) 253 CLR 58
C v The State of Western Australia [2006] WASCA 261
Gandini v The State of Western Australia [2011] WASCA 208
Humphreys v The State of Western Australia [2017] WASCA 208
Mountain v The State of Western Australia [2009] WASCA 161
Munda v The State of Western Australia [2013] HCA 38; (2013) 249 CLR 600
Munmurrie v The State of Western Australia [2013] WASCA 1
Nanya v The State of Western Australia [2016] WASCA 169
Scaddon v The State of Western Australia [2015] WASCA 173
The Queen v Kilic [2016] HCA 48; (2016) 259 CLR 256
The Queen v Quartermaine [2000] WASCA 341
The State of Western Australia v Akizuki [2008] WASCA 267
The State of Western Australia v Doualeh [2014] WASCA 3
The State of Western Australia v Richards [2008] WASCA 134; (2008) 37 WAR 229
Warburton v The State of Western Australia [2009] WASCA 113; (2009) 196 A Crim R 361
WRN v The State of Western Australia [2017] WASCA 145

JUDGMENT OF THE COURT: The appellant pleaded guilty to one count of attempted sexual penetration without consent contrary to s 325 and s 552 of the Criminal Code (WA) and one count of stealing contrary to s 371 and s 378 of the Criminal Code. He was sentenced to 4 years 3 months' immediate imprisonment on count 1 and 6 months' immediate imprisonment concurrent on count 2. He seeks leave to appeal against the sentence on count 1 on the ground that it is manifestly excessive.
For the reasons that follow leave should be granted, the appeal allowed and the appellant resentenced.

Factual circumstances

Other than in respect of one matter, which was accepted on the appellant's behalf to not be material, the facts were not in dispute. The admitted facts were as follows.
At the time of the offence, the appellant was a 48‑year‑old male of heavy build. The female complainant was a 32‑year‑old Chinese national who was on a four‑week holiday in Perth. The appellant and the complainant were unknown to each other.
At about 4.00 pm on Thursday 12 February 2015, the appellant was standing near a car park at a boat ramp in Rivervale. The complainant approached and walked towards the water. The appellant walked behind her and followed her towards the river. She became aware of the appellant and that he was staring at her. She turned to face him and he said hello. The complainant nodded and continued towards the water. She paddled in the water for about 10 minutes.
The weather was hot and the complainant wanted to go for a swim, so she went to a nearby public toilet block to change into a bikini. The appellant continued to watch the complainant. After changing, the complainant returned to the water and swam for about 15 minutes.
After the complainant finished swimming, she returned to the female toilet block to get changed. She removed her bikini to put her underwear on. While she was still changing, and naked from the waist up, the appellant entered the toilet block and walked towards her. She shouted 'what are you doing' and ran to one of the toilet cubicles and closed the door. The door did not have a lock so she pushed against it in an attempt to stop the appellant from entering. He pushed hard against the door, forcing it open and pinning the complainant behind the door. He then moved into the cubicle and closed the door.
The appellant pushed the complainant, forcing her to drop to her knees. He then put his left hand on top of her head. She screamed and he moved his hand onto her mouth in an attempt to stop this. He then used his right hand to pull down his shorts and underwear and remove his erect penis. He said 'suck it bitch'. She moved her head from side to side to avoid her face being touched by his penis. He continued to push his penis towards her mouth, causing it to rub against her lips and cheeks. The complainant screamed again and the appellant then released her and left the cubicle.
The complainant had left her handbag on a bench outside the cubicle. The appellant saw it and reached into the handbag, removing a blue clutch purse containing the complainant's passport, credit card and $300 in cash. He then left the toilet block and walked along a footpath towards Rivervale. As he was walking he unzipped the purse, removed the cash and discarded the purse in some reeds near the pathway. The purse was located by police shortly afterwards. DNA matching the appellant's profile was located on the purse.
On 19 May 2016, the appellant was arrested and interviewed. He made some admissions.

Victim impact statement

In her victim impact statement the complainant said that after the incident she called the police and cancelled her credit card. Although the police later found her wallet, she was left without money or credit and this made her remaining days in Australia difficult. She felt constantly afraid and did not feel comfortable to go out after 4.00 pm. She did not wish to continue her holiday and wanted to go home. However, she did not feel that she could tell her family about the offending and was unable to change the date of her return flight.
When she did return home, the complainant continued to feel afraid to go out or travel alone and experienced nightmares. She lives in a conservative community and says that she has been subjected to humiliation and discrimination from those who are aware that she is the victim of a sexual offence.

Personal circumstances

The appellant was 48 years old at the time of the offence and 49 years old at the time of sentencing. He was born in Melbourne and moved to Perth with his family as a young child. He has seven siblings and had a close relationship with his parents, both of whom are now deceased. He had difficulty coping with grief after his father and mother died.
The appellant left school in year 9 and has been employed in various, mostly unskilled, jobs since then. He has been self‑employed as a truck escort driver since 2005.
The appellant has had a number of relationships, the longest of which lasted three years. He was not in a relationship at the time of the offence. He feels that the women with whom he has had relationships have taken advantage of him to obtain financial gain.
The appellant abused alcohol between the ages of 17 and 21, but then ceased drinking entirely. He has never been a user of drugs. He tried cannabis once in 2000, but did not like it. He has experienced depression and has been prescribed antidepressants.
The appellant has a criminal record, with offences going back to 1985. The past offences are mostly traffic offences and offences of dishonesty. There are no prior offences of violence or of a sexual nature. He had not been imprisoned prior to the present offences.

Psychologist's report

The appellant told a psychologist that he was living in his vehicle at the time of the offences. He had parked near the boat ramp in order to use the public toilets. He claimed that when he saw the complainant he thought she was a prostitute. The only reasons he gave for this belief were that there were brothels in the area, that she was wearing a bikini and that she appeared to be Asian. It was not accepted by the prosecution that the appellant had such a belief. In any event it was conceded on the appellant's behalf that even if he did it could not possibly mitigate his conduct.
The appellant was unable to offer an explanation as to why he did not leave the change rooms once the complainant attempted to hide from him and began screaming. He denied that he found her fear arousing but was unable to explain how he maintained an erection whilst the complainant was struggling and screaming. He said that he took the purse because he was in 'dire straits' and needed extra cash.
The psychologist noted that the appellant has a low frustration tolerance and is prone to outbursts of anger when feeling thwarted. He is detached, impersonal, passive and distant, with few friends. His past interpersonal relationships have left him with feelings of resentment.
The appellant has been treated for depression, though the psychologist was of the view that he had been non‑compliant with his medication. Depression was not considered to be a factor that was causative of the offending, though his consequential thinking may be negatively impacted by depression and compliance with medication may improve his ability to make pro‑social decisions. His profile is consistent with experiencing chronic depression with likely major depressive episodes at various times. He is likely to experience anxiety that interferes with his lifestyle. He is also likely to have mood swings that range from elation to depression. When elated he may have an exaggerated sense of self‑esteem and be overly optimistic and impulsive. When depressed he is likely to be unmotivated, sad and experience poor self‑esteem.
The psychologist noted that the appellant had attitudes that support or condone sexual offending. This was considered to be a factor relevant to his risk of further offending. His use of violence to restrain and assault the victim suggests that he put his own needs above the needs of the victim and did not consider the consequences to her of his offending behaviour. This suggests that his personal beliefs and strong cognitive distortions allow for the use of restraint and violence in order to have his sexual needs met. He had difficulty understanding the impact of his offending on the complainant.

Sentencing remarks

It is not suggested that the sentencing judge made any express errors in his sentencing remarks. Accordingly, it is unnecessary to do more than summarise those remarks.
His Honour accepted that the appellant had pleaded guilty to the offences at the earliest reasonable opportunity. He allowed a discount of 25% pursuant to s 9AA of the Sentencing Act 1995 (WA). He referred to the fact that the plea of guilty had meant that the complainant had been spared the ordeal of giving evidence in a public court.
His Honour said that, on any objective view of the facts, count 1 was a serious offence and the courts must mark their disapproval of this 'outrageous conduct'. Whilst penetration did not occur, his Honour said that that was not due to any lack of trying on the appellant's behalf. Rather it was due to the actions of the complainant, both in struggling and screaming. His Honour said that the appellant's stopping of his conduct needed to be looked at in circumstances where the attack was taking place in a public toilet and the complainant continued to scream and there was a clear prospect that someone may hear those screams and come to her aid.
His Honour concluded that no sentence other than one of immediate imprisonment was appropriate. He said that the term imposed needed to reflect the 'brazen nature' and 'very serious' circumstances of the offending.

Appellant's submissions

The appellant submits that the sentence of 4 years 3 months' immediate imprisonment on count 1 is manifestly excessive, having regard to the maximum penalty, the fact that the appellant pleaded guilty and sentences imposed in comparable cases.
As to comparable cases, the appellant placed particular reliance on four cases: Munmurrie v The State of Western Australia;[1] The State of Western Australia v Doualeh;[2] The Queen v Quartermaine;[3] and Mountain v The State of Western Australia.[4]
[1] Munmurrie v The State of Western Australia [2013] WASCA 167.
[2] The State of Western Australia v Doualeh [2014] WASCA 3.
[3] The Queen v Quartermaine [2000] WASCA 341.
[4] Mountain v The State of Western Australia [2009] WASCA 161.
In Munmurrie, the offender was an 18‑year‑old man who was convicted after trial of one count of attempted sexual penetration without consent and one count of sexual penetration without consent. The offender approached the victim in the street, and requested sex. After she refused he stood in front of her and attempted to drag her into a laneway. She escaped but was found by the offender, who grabbed her hair and left arm and dragged her towards a fence. He attempted to force the victim to perform oral sex on him. He then went to a house with the victim where he assaulted her and sexually penetrated her vagina with his penis. He was sentenced to 2 years 6 months' immediate imprisonment for the attempt and 4 years 3 months' immediate imprisonment for the second count. The sentences were ordered to be served concurrently. The offender contended that the aggregate sentence breached the second limb of the totality principle because it was crushing. An application for an extension of time within which to appeal against the sentence was refused.
In Mountain, the offender was convicted after trial of four counts of sexual penetration without consent and one count of attempted sexual penetration without consent. The offender walked into a toilet at a nightclub already occupied by the victim. The victim blacked out or suffered some loss of memory. When she 'came to' she was on the floor. The offender crouched between the victim's legs and inserted his fingers inside her vagina. The victim tried to resist but the offender continued. He also penetrated her anus with a finger. The facts of the attempted sexual penetration were that the offender undid his pants and forced the victim's head towards his crotch. She resisted and the offender let go of her head and she fell backwards and hit her head against the wall. He then penetrated her vagina again with his fingers. The offender was sentenced to 2 years 8 months' immediate imprisonment on each count of sexual penetration and 1 year 4 months' immediate imprisonment for the attempted sexual penetration. On appeal, the total effective sentence of 5 years 4 months' imprisonment was reduced to 4 years 8 months' immediate imprisonment. This was because the offender should have been sentenced on the basis that some initial sexual contact may have been consensual.
In Doualeh, the offender was convicted after trial of one count of aggravated sexual penetration without consent. He approached and overpowered the victim at a train station after she refused his request for oral sex. He punched her to the head a number of times to overcome resistance. She suffered injuries as a consequence. He forced his penis into the victim's mouth. The victim managed to force the offender away from her by pushing and kicking. The offender was on bail at the time for another offence and was in breach of a curfew which was a condition of his bail. He was aged 18 and under the influence of alcohol at the time of the offence. A sentence of 3 years 2 months' immediate imprisonment was increased on a State appeal to 4 years 6 months' immediate imprisonment.
In Quartermaine, the offender was convicted after trial of two counts of sexual penetration without consent and one count of indecent assault. The offender forced the victim to engage in oral sex and sexual intercourse. He was sentenced to 2 years and 4 years for each of the offences of sexual penetration and 2 years for the indecent assault. The offence involving penetration of the victim's mouth by the appellant's penis resulted in the 2‑year sentence. The total effective sentence was 4 years' immediate imprisonment. A successful State appeal resulted in the total effective sentence being increased to 7 years (equivalent to 4 years 8 months in post‑transitional terms).
In the present case, the appellant submits that if the discount for pleading guilty is removed the starting point must have been somewhere in the vicinity of 5 years 8 months' imprisonment. That is said to be a sentence considerably higher than those imposed in the comparable cases referred to.

Respondent's submissions

The respondent relies on observations by Wheeler JA in Warburton v The State of Western Australia,[5] that sentences of 4 to 6 years have been considered appropriate in an 'average or ordinary case' of sexual penetration without consent. Her Honour reviewed a number of other cases between 1989 and 2008 in which it was said that sentences for a single act of sexual penetration without consent ranged between 6 and 9 years (4 to 6 years post‑transitional). This was a range that did not take into account mitigating factors.
[5] Warburton v The State of Western Australia [2009] WASCA 113; (2009) 196 A Crim R 361 [11].
The respondent also referred to The State of Western Australia v Richards[6] in which Steytler P said that sentences for sexual penetration without consent, where there was no plea of guilty or other exceptional circumstances, could be expected to result in a term of around 5 or 6 years. See also WRN v The State of Western Australia.[7]
[6] The State of Western Australia v Richards [2008] WASCA 134; (2008) 37 WAR 229 [49].
[7] WRN v The State of Western Australia [2017] WASCA 145.
The respondent submits that it does not necessarily follow that because the appellant did not succeed in committing the offence which he intended to commit he ought to receive a sentence of the order of half of that which he would receive if he had succeeded in his purpose. In this regard, the respondent relies upon what was said by McLure P (Buss JA & Hall J agreeing) in Gandini v The State of Western Australia:[8]
… it does not follow that because the maximum penalty for a completed offence is double that for an attempted offence of the same type, the penalty imposed for an attempt must necessarily be less than for a completed offence.
[8] Gandini v The State of Western Australia [2011] WASCA 208 [9].
The respondent submits that the offending in this case was objectively serious. The appellant forcefully persisted in his efforts and he only desisted when it became clear that he risked discovery due to the victim's persistent screaming. In these circumstances, it is said that the fact that the appellant failed to achieve his purpose does not lessen the objective seriousness of his conduct. The respondent submits that it is appropriate that the appellant received a sentence which is broadly consistent with the outcomes in cases involving completed offences. The respondent also notes that the sentencing judge, for totality reasons, ameliorated the total sentence by ordering that the term of imprisonment for the stealing offence be served concurrently.

Merits of the appeal

The principles applicable to the determination of an appeal on the ground that a sentence is manifestly excessive are well settled. Such a ground does not allege express error but rather asserts that an error can be implied from the nature and length of the sentence. In respect of such a ground the question is not what sentence the appeal court would have imposed if it were in the position of the primary judge. Rather the question is whether the sentence that was imposed was one that was properly open to the sentencing judge in the exercise of his or her discretion.[9] Error can be inferred if the result is unreasonable or plainly unjust.
[9] See Humphreys v The State of Western Australia [2017] WASCA 208 [17].

In determining whether a sentence is manifestly excessive, it is necessary to take into account the maximum sentence prescribed by law, the standards of sentencing customarily observed with respect to the crime, the place which the criminal conduct occupies on a scale of seriousness of crimes of that type and the personal circumstances of the offender.[10]
[10] See Humphreys [18].
The maximum penalty for an offence of sexual penetration without consent (and where the offence is not committed in circumstances of aggravation) is 14 years' imprisonment.[11] Where the offence committed is an attempt, as here, the maximum penalty is 7 years' imprisonment.[12]
[11] Section 325(1) Criminal Code.
[12] Section 552(2)(b) Criminal Code.
A sentence imposed on an offender must be commensurate with the seriousness of the offence.[13] The seriousness of an offence must be determined by taking into account the statutory penalty for the offence, the circumstances of the commission of the offence (including the vulnerability of any victim of the offence), any aggravating factors and any mitigatory factors.[14]
[13] Section 6(1) Sentencing Act.
[14] Section 6(2) Sentencing Act.
The passage from Gandini (a case involving an offence of attempted aggravated burglary) quoted by the respondent only serves to point out that the maximum penalty is not the only relevant factor in determining seriousness. This means that it is possible for the particular circumstances of an attempt offence to justify a sentence that is higher than for some other less serious completed offence. Thus an attempt offence will not necessarily or invariably attract a lower sentence than a completed offence. However, this does not mean that the relevant maximum penalty is not an important, indeed essential, consideration.
There is no tariff for sexual offences, nor is there a specified starting point for each category of sexual penetration without consent. One form of sexual penetration is not necessarily any more or less serious than another. The seriousness of every offence of sexual penetration without consent is to be determined by its own individual circumstances.[15]
[15] Akizuki [3], [68] and C v The State of Western Australia [2006] WASCA 261 [35] (Wheeler JA), adopted in Nanya v The State of Western Australia [2016] WASCA 169 [54] and WRN v The State of Western Australia [2017] WASCA 145 [29] ‑ [30].
There are only a few cases dealing with sentences imposed for offences of attempted sexual penetration without consent. Referring to a small sample of cases provides limited assistance.[16] This is particularly the case with sexual offending because the circumstances of such offences can vary significantly: The State of Western Australia v Akizuki.[17] Furthermore, the guidance afforded by other cases is flexible. Comparable cases can only give a general guide as to the exercise of discretion; they do not set the limits or bounds of discretion.[18] Caution must also be used in placing any reliance on cases involving completed offences, bearing in mind the likely effect of the higher maximum penalty.
[16] Scaddon v The State of Western Australia [2015] WASCA 173 [23].
[17] The State of Western Australia v Akizuki [2008] WASCA 267 [68] (Steytler P).
[18] Barbaro v The Queen [2014] HCA 2; (2014) 253 CLR 58.
The cases referred to by the appellant are insufficient in number to establish a range of sentences customarily imposed for offences of attempted sexual penetration without consent. Furthermore, none of them involved a single count of attempted sexual penetration without consent and all of them involved sentences imposed after trial. There are however, some factual similarities, particularly with Mountain and Doualeh. The cases referred to by the appellant can, in the circumstances, only afford limited assistance.
The lack of directly comparable cases does not preclude this court from deciding that a sentence is manifestly excessive. It merely has the effect that there is no yardstick with which to measure the sentence imposed at first instance.[19]
[19] Munda v The State of Western Australia [2013] HCA 38; (2013) 249 CLR 600.
The offence in this case was an objectively serious example of an attempt to commit sexual penetration without consent. The aggravating factors are that:
(1)the appellant watched the victim for some time before the offence. He knew that she was alone and, therefore, vulnerable;
(2)having seen the victim go into the toilet block to get changed into her swimwear he must have known that when she returned to the toilet block it was likely that she was getting changed again;
(3)he trapped the victim in a public toilet area reserved for females, where women are entitled to feel safe from harm;
(4)he persisted in his conduct despite the victim retreating to a toilet cubicle, telling him to go away and closing the door;
(5)he forced entry to the toilet cubicle and used his greater strength to push the victim to her knees and cover her mouth when she screamed for help;
(6)he attempted to force his penis into the victim's mouth and was only prevented from doing so by her determined struggling;
(7)he only desisted because the victim continued to scream and there was a prospect that someone might come to the victim's assistance.
The sentence also needed to take into account any mitigating factors. The most significant of these was the appellant's plea of guilty. The sentencing judge found that the appellant had pleaded guilty at the earliest reasonable opportunity. A discount of 25% on the head sentence that would otherwise have been imposed was considered appropriate. Whilst there were few other mitigating factors, when the discount is taken into account, the starting point must have been at least 5 years and 8 months.
Personal circumstances are of comparatively less weight in dealing with offences of this type.[20] In any event, as we have noted, there was very little by way of mitigation other than the plea of guilty. The appellant did have a criminal record, though it contained no prior offences of a violent or sexual nature. The appellant stated that the offence was out of character and that he would not behave in the same way again, although the psychologist said that there was a risk that he would do so unless he dealt with some of the underlying causes of that behaviour.
[20] Mountain [57].
It appears that the only reason that the appellant did not complete the offence was due to the resistance of the victim. However, that does not mean that he can be sentenced as if he had committed a completed offence. That would be to punish the appellant for an offence which is different from that of which he has been convicted. Nor is it appropriate to use sentences imposed for completed offences as comparators because that would be to ignore the different maximum penalties applicable.
A sentence of imprisonment to be immediately served was clearly appropriate. The appellant accepts this. However, the length of the sentence did not properly reflect the plea of guilty and the maximum penalty for the offence. In all the circumstances, evaluated against the maximum penalty of 7 years, locating the offence on the spectrum that extends from the least serious instances of the offence to the worst category,[21] and taking into account his plea of guilty (for which he received a 25% discount), in our respectful opinion it must be concluded that the sentence imposed for count 1 reveals implied error. The sentence imposed was not consistent with sentences imposed in the comparable cases referred to, even taking into account the limited number of cases and the differences between them and the appellant's case.
[21] The Queen v Kilic [2016] HCA 48; (2016) 259 CLR 256 [19].
Having regard to all relevant factors, including the maximum penalty and the plea of guilty, the sentence imposed on count 1 is unreasonable or plainly unjust. Accordingly, the ground of appeal has been made out and the appellant should be resentenced.

Resentencing

This court has sufficient materials to resentence the appellant. In doing so the court can also resentence on count 2, since that sentence took into account the sentence imposed on count 1: s 41(2) Criminal Appeals Act 2004 (WA). Having regard to the seriousness of count 1, the maximum penalty for that offence, the circumstances of the offence, previous cases with some comparable features, the aggravating and mitigating factors and the appellant's personal circumstances, we consider that a sentence of 3 years 3 months' immediate imprisonment is appropriate.
The sentence of 6 months' immediate imprisonment for count 2 should stand but that sentence should be made cumulative. Although the stealing was committed immediately following the attempted sexual penetration without consent, it was a distinct offence that involved additional criminality. That sentence was made concurrent by the sentencing judge for totality reasons. The reduction of the sentence on count 1 justifies reconsideration of whether imposing a cumulative sentence on count 2 would produce a total aggregate sentence that is disproportionate to the criminality. In our view it would not. A cumulative sentence is justified in all of the circumstances.
It was suggested on the hearing of the appeal that the stealing offence was opportunistic. That is an inappropriate description in circumstances where the opportunity to take the victim's handbag was created by the appellant. He forced her into the cubicle and to the ground. He knew that she was helpless to prevent the theft of her property. He took her money, credit cards and passport leaving her desperate and causing her additional trauma.
For these reasons we would grant leave to appeal, allow the appeal, set aside the sentences imposed by the primary judge and in lieu thereof sentence the appellant to 3 years 3 months' immediate imprisonment on count 1 and 6 months' immediate imprisonment on count 2 cumulative. The total effective sentence is 3 years 9 months' immediate imprisonment. The new individual sentences take into account the 25% discount for pleading guilty at the earliest reasonable opportunity which is, in our opinion, appropriate. The new sentences also take into account all other mitigating factors and all aggravating factors referred to by the primary judge. The order for eligibility for parole should stand. The new sentence for count 1 and the new total effective sentence are backdated to 23 June 2017. The appellant will be eligible for release on parole when he has served 1 year and 10½ months in custody calculated from that date.