PSS (a child) v The State of Western Australia
[2015] WASCA 98
•19 MAY 2015
PSS (a child) -v- THE STATE OF WESTERN AUSTRALIA [2015] WASCA 98
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2015] WASCA 98 | |
| THE COURT OF APPEAL (WA) | |||
| Case No: | CACR:156/2014 | 8 APRIL 2015 | |
| Coram: | McLURE P BUSS JA MAZZA JA | 19/05/15 | |
| 11 | Judgment Part: | 1 of 1 | |
| Result: | Appeal dismissed | ||
| B | |||
| PDF Version |
| Parties: | PSS (a child) THE STATE OF WESTERN AUSTRALIA |
Catchwords: | Criminal law Appeal against sentence Aggravated burglary and sexual penetration without consent Manifest excess s 121 Young Offenders Act |
Legislation: | Criminal Code (WA) Misuse of Drugs Act 1981 (WA) Sentencing Act 1995 (WA) Young Offenders Act 1994 (WA) |
Case References: | Bugmy v The Queen [1990] HCA 18; (1990) 169 CLR 525 Deakin v The Queen [1984] HCA 31; (1984) 58 ALJR 367 Giglia v The State of Western Australia [2010] WASCA 9 KSB (a child) v The State of Western Australia [2004] WASCA 296 Lam v The State of Western Australia [2012] WASCA 246 MC (a child) v The Queen [2003] WASCA 205 Power v The Queen [1974] HCA 26; (1974) 131 CLR 623 R v DP (a child) [2003] WASCA 92 R v KC [2003] WASCA 144 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : PSS (a child) -v- THE STATE OF WESTERN AUSTRALIA [2015] WASCA 98 CORAM : McLURE P
- BUSS JA
MAZZA JA
- Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram : REYNOLDS P
File No : CC KA 435 of 2013, CC KA 436 of 2013, CC KA 3396 of 2013, CC KA 3397 of 2013, KA 35 of 2014
Catchwords:
Criminal law - Appeal against sentence - Aggravated burglary and sexual penetration without consent - Manifest excess - s 121 Young Offenders Act
Legislation:
Criminal Code (WA)
Misuse of Drugs Act 1981 (WA)
Sentencing Act 1995 (WA)
Young Offenders Act 1994 (WA)
Result:
Appeal dismissed
Category: B
Representation:
Counsel:
Appellant : Mr D D Brunello
Respondent : Ms A C Longden
Solicitors:
Appellant : Aboriginal Legal Service (WA)
Respondent : Director of Public Prosecutions (WA)
Case(s) referred to in judgment(s):
Bugmy v The Queen [1990] HCA 18; (1990) 169 CLR 525
Deakin v The Queen [1984] HCA 31; (1984) 58 ALJR 367
Giglia v The State of Western Australia [2010] WASCA 9
KSB (a child) v The State of Western Australia [2004] WASCA 296
Lam v The State of Western Australia [2012] WASCA 246
MC (a child) v The Queen [2003] WASCA 205
Power v The Queen [1974] HCA 26; (1974) 131 CLR 623
R v DP (a child) [2003] WASCA 92
R v KC [2003] WASCA 144
1 McLURE P: This is an appeal against sentence. On 7 May 2014 the appellant pleaded guilty to one charge of aggravated burglary and commit the offence of sexual penetration without consent contrary to s 401(2)(a) of the Criminal Code (WA) (Code), one charge of sexual penetration without consent contrary to s 325 of the Code, two charges of common assault contrary to s 313(1)(b) of the Code and one charge of possession of a prohibited drug (cannabis) contrary to s 6(2) of the Misuse of Drugs Act 1981 (WA).
2 On 5 August 2014 the President of the Children's Court sentenced the appellant to 3 years detention for the offence of aggravated burglary, 3 years 9 months detention for the offence of sexual penetration without consent and 3 months and 4 months detention respectively for the common assault offences. No further penalty was imposed for the possession charge, pursuant to s 67 of the Young Offenders Act 1994 (WA).
3 All of the sentences were ordered to be served concurrently, resulting in a total effective sentence of 3 years 9 months detention, backdated to 21 November 2013. The appellant was made eligible for supervised release after serving half the total sentence (22.5 months).
4 The appellant claims the sentence of 3 years 9 months detention for the sexual offence is manifestly excessive (ground 1) and that the sentencing judge erred in not setting a shorter minimum period under s 121 of the Young Offenders Act (ground 2). In particulars to both grounds, the appellant claims the sentencing judge gave excessive weight to punishment and general deterrence and insufficient weight to his youth and rehabilitation. Leave to appeal on ground 1 was granted and the application for leave on ground 2 was referred to the hearing of the appeal.
5 The facts of the aggravated burglary and sexual penetration offences are as follows. Some time between 2.00 am and 3.00 am on Friday 22 November 2013, the appellant attended the victim's residence in Coolgardie. The victim was a 24-year-old female teacher at the Coolgardie Aboriginal Parent-Directed School. The appellant located a dining chair in the front yard, placed it under an open lounge room window and climbed inside the victim's house. He made his way to the kitchen, stole the victim's car and house keys, and proceeded to her bedroom. The victim was alone and asleep in bed at the time. She heard noises and woke in fright. The appellant was standing at the foot of her bed. He crawled into her bed, lay next to her and placed his left leg over her, holding her down. He demanded that she hand over her mobile telephone. She refused. He said 'I want sex'. She began to cry loudly and replied that she could not as she was a Christian. The appellant rubbed the victim's right arm and shoulder causing her to jump from the bed. He followed. They stood facing one another. The victim pushed the appellant on the chest but he stood his ground. He demanded she hug him. She was crying and shaking with fear but agreed. Before she could do so, the appellant kissed the victim, forcing his tongue into her mouth. He then took hold of her shoulders and forced her onto her knees. The appellant pulled down his trousers and forced his erect penis into the victim's mouth. He took hold of her head with both hands and pulled her towards him while thrusting his hips forward and back. He ejaculated in the victim's mouth. The appellant then left the house.
6 At the time of these offences, the appellant was aged 15 years 11 months. He was taller and heavier than the victim. He offended whilst under the influence of both alcohol and cannabis. The appellant was aged 16 years 8 months at the time of sentence.
7 The victim went to Coolgardie in January 2013 to teach in an environment devoted to the specialised teaching of aboriginal children in a Christian context. After the offending, she returned to her home in Korea.
8 On 23 November 2013 the appellant was found in possession of a small bag of cannabis.
9 The common assaults were committed at 1.21 am on 20 July 2013 at the Victoria Park train station. The appellant was with two others. The appellant approached the victim, who was standing with her partner on the platform. The victim's partner had been assaulted by a co-offender. The appellant held the victim by her arms, restraining her from going to the assistance of her partner. When the victim stood in front of her partner, the appellant grabbed her by the arms and pulled her down to the ground. The second victim had seen the appellant attacking a person on the platform and run down the stairs to try and prevent the assault. The appellant ran at the second victim and punched and kicked him repeatedly.
10 The sentencing judge classified the offence of sexual penetration without consent as being a very serious offence of its kind. The facts which made it so were identified by the sentencing judge as follows: it was committed in the context of a home invasion in the early hours of the morning; the victim was alone, very vulnerable and was woken from her sleep by the appellant; the victim was entitled to feel safe in her own home; the victim was clearly and obviously distressed yet the appellant persisted in his demands for sex; the appellant dominated and controlled the victim by putting his left leg over her and holding her down; the appellant stood his ground when the victim pushed him and forcefully demanded that the victim hug him; the appellant took hold of the victim's shoulders, forced her on her knees in front of him, forced his erect penis into the victim's mouth and took hold of her head with both his hands and pulled it towards him while thrusting his hips and penis; the appellant did not leave the victim's home until he had ejaculated in her mouth; the oral penetration was violent and frightening as well as humiliating and degrading for the victim; the impact of the offending on the victim was both serious and profound.
11 The appellant committed the aggravated burglary and sexual offence when he was on bail for the two common assault charges.
12 The appellant did not have any prior convictions for violent or sexual offending but did have prior convictions for aggravated burglaries, damage, stealing a motor vehicle, stealing, trespass, possession of a prohibited weapon, breach of bail and breaching intensive youth supervision orders. The appellant had not previously been sentenced to detention.
13 The appellant's cannabis and alcohol use, which was extensive, commenced when he was 13. At aged 12 he commenced having sexual relations with girls around his own age.
14 The appellant's childhood was turbulent. In May 2009 one of the appellant's older brothers died in a motor vehicle accident. In May 2013 his mother suffered a stroke which resulted in her requiring prolonged periods of hospitalisation. In mid-2013, the appellant's older brothers were sentenced to periods of imprisonment and in September 2013 the Department of Child Protection and Family Support removed the appellant's cousins from the care of his parents.
15 There were a number of mitigating factors for sentencing purposes, the most important of which was the appellant's youth. In addition, the appellant pleaded guilty at the first reasonable opportunity for which he received the maximum discount under s 9AA of the Sentencing Act 1995 (WA). The sentencing judge also found that the appellant had some remorse and empathy although there was scope for more than he had shown.
16 Further, the sentencing judge had regard to the following: the sexual offence was out of character; the appellant would be in detention a long way from family and country; there was an unacceptably high level of lockdowns at Banksia Hill Detention Centre; and the appellant had had to deal with an 'overload of grief upon grief' arising out of the family circumstances referred to above.
17 However, the sentencing judge concluded that the combined weight of the mitigating factors and other sentencing considerations were 'significantly outweighed by the seriousness of the factual circumstances of the offending and the need for general deterrence' (ts 26).
Legal principles
18 This court cannot intervene unless the sentencing judge made an express or implied material error of fact or law. A claim of manifest excess relies on the implication of error. The sentence must be shown to be unreasonable or plainly unjust, it being outside the range of a sound sentencing discretion.
19 In determining whether an implied error has been made, regard is had to the maximum sentence for the offence, the standards of sentencing customarily observed, the place which the criminal conduct occupies on the scale of seriousness and the personal circumstances of the offender.
20 Sentences customarily imposed do not establish the range of a sound sentencing discretion. Rather, they provide a yardstick or reference point for ensuring broad consistency in sentencing, bearing in mind the scope for significant variations in relevant sentencing factors and the fact that there is no single correct sentence.
21 In comparable cases involving multiple offences, the severity of a sentence imposed on an individual count will usually fall to be assessed in light of the sentences imposed in respect of the other counts and its contribution to the total effective sentence: Giglia v The State of Western Australia [2010] WASCA 9 [40].
Manifest excess
22 The appellant accepts that the sentencing judge correctly identified and took into account the sentencing principles in the Young Offenders Act, in particular, s 6, s 7 and s 46 thereof. The appellant's case is that error is to be inferred from the sentencing outcome.
23 However, even if the appellant was successful in his claim that the sentence of 3 years 9 months detention for the offence of sexual penetration without consent is manifestly excessive, the total effective sentence for the appellant's offending as a whole cannot fall below 3 years detention because there is no challenge to the sentence for the aggravated burglary offence.
24 The maximum penalty for the offence of sexual penetration without consent under s 325 of the Code is 14 years imprisonment. The maximum penalty for the offence of aggravated burglary under s 401(2)(a) of the Code is 20 years imprisonment.
25 There are few appellate authorities that have considered the appropriateness of individual sentences imposed on juvenile offenders for sexual penetration without consent committed during an aggravated burglary. The appellant relies on three cases: KSB (a child) v The State of Western Australia [2004] WASCA 296 and two Crown appeals against sentence, R v KC [2003] WASCA 144 and R v DP (a child) [2003] WASCA 92.
26 In KSB the offender broke into a house at about 4.00 am and entered a bedroom where an 11-year-old girl was asleep in her bed. The offender digitally penetrated the girl's anus before being interrupted and fleeing the house. At the time of the offence the offender was aged 16, was serving a community based order, had never previously been sentenced to detention and had entered early pleas of guilty. It was stated, without elaboration, that the offence had a very profound impact on the victim. The sentencing judge imposed a sentence of 3 years detention for the aggravated burglary offence and the sexual penetration offence respectively and ordered the sentences to be served concurrently. On appeal, the individual sentences (and total sentence) were reduced from 3 years detention to 2 years 6 months.
27 The nature and duration of the sexual offence committed by the appellant in this case and the other circumstances of its commission are significantly higher on the scale of seriousness than in KSB.
28 In DP, there were two separate episodes of sexual violence involving different victims and the commission of 18 offences. The first episode involved deprivation of liberty, aggravated sexual penetration without consent and two counts of aggravated indecent assault. The 16-year-old offender pursued the victim on foot on a public street in Kalgoorlie. He caught up with her, grabbed her and there was a struggle. The offender penetrated the victim's vagina with his penis (for which penetration the sentence was 2 years detention), during which he kissed her on the breast and lips. The second episode occurred less than two months later. It involved deprivation of liberty, aggravated sexual penetration without consent, assault occasioning bodily harm and two counts of aggravated indecent assault. The offender was walking in Balga with two friends at night. He saw the victim and her friend and propositioned them for sex, which they declined. The offender, armed with a 30 cm long knife-sharpening steel, followed the victim, grabbed her from behind and forced her face onto the ground. She struggled violently. The victim's friend intervened allowing the victim to escape and they ran off. The offender pursued them for approximately 600 m and caught up with them. He grabbed the victim, pushed her face down into the sand, lay on top of her while she struggled, and repeatedly punched her while rubbing her breast and digitally penetrating her vagina (for which penetration the sentence was 18 months detention). These offences were committed in breach of a Youth Conditional Release Order imposed for the offences the subject of the first episode. The offender had an intellectually disabled mother and an alcoholic itinerant father, was exposed to family violence, had an extensive history of poly-substance abuse and 17 unsuccessful residential placements by the Department of Community Development. On a Crown appeal, the total effective sentence of 2 years 6 months detention was increased to 6 years 9 months detention. There was no challenge or change to the individual sentences. The double jeopardy principle, which then applied to Crown appeals, had the effect of reducing the otherwise appropriate total sentence the subject of the appeal. That principle has never applied to offender appeals.
29 In KC, there were two episodes of offending about one month apart against the same victim. The first episode involved an aggravated burglary. The offender, who was then aged around 17 years 6 months, broke into the victim's house at night with the intention of stealing property. The victim woke up, disturbed the offender and he fled. The second episode involved the offences of aggravated burglary, 13 counts of aggravated sexual penetration, three counts of attempted aggravated sexual penetration, one count of aggravated indecent assault, one count of assault occasioning bodily harm and four counts of common assault. The offender returned to the victim's house at night while she slept. He forced entry, saw the victim and became sexually aroused. There was a struggle in the bedroom during which he penetrated the victim's vagina with his penis. The struggle continued. He proceeded to repeatedly penetrate the victim's vagina (variously) with his penis and finger and also attempted to penetrate her anus. The sexual violence was interposed with physical violence. The offender entered early pleas of guilty, had a relatively minor criminal history and would serve his term in an adult gaol. He was found to be truly remorseful and had a degree of insight. He had experienced a fractured childhood and dysfunctional family life marked by alcoholic parents, conflict, physical violence, inattention to his basic needs and residential transiency. The sexual offences were found to be totally out of character. A Crown appeal against the total effective sentence of 3 years imprisonment was dismissed. The highest individual sentence for the counts of aggravated sexual penetration was 18 months imprisonment. The double jeopardy principle also applied to the Crown appeal in KC.
30 In this case, the sentencing judge took into account the sentence he imposed in The State of Western Australia v RS (CC 3048 of 2012). The offender, RS, was found guilty after trial of aggravated burglary, two counts of aggravated sexual penetration without consent (one penile, one digital), aggravated indecent assault and assault occasioning bodily harm. All the offences took place on the occasion of the aggravated burglary. RS was sentenced to 4 years 6 months detention for the penile/vaginal penetration offence. The total effective sentence imposed was 5 years 6 months. RS was aged 15 years 1 month at the time of the offending and had no prior convictions.
31 I am not persuaded that the sentence of 3 years 9 months is broadly inconsistent with the small number of comparable cases on which the appellant relies. It is entirely consistent with the closest comparable case, KSB.
32 I accept that the total offending in DP and KC is significantly more serious than the total offending of the appellant in this case. However, individual sentences imposed in sentencing for multiple offences do not necessarily provide a sound guide on the question of whether an individual sentence is manifestly excessive. As noted in Giglia, a relatively light sentence may, as a practical matter, have increased severity if it is ordered to be served wholly or partly cumulatively with other sentences [40]. On the other hand, it is apparent from the sentencing judge's reasons in this case that aspects of the aggravated burglary offence aggravated the seriousness of the sexual offence and any prospect of double punishment was avoided by making the sentences wholly concurrent.
33 Moreover, there is a suggestion in the reasons in DP and KC that the familial disadvantage of the offender was so extreme as to significantly moderate the need for general deterrence. There can be no other explanation for the outcome in KC.
34 In this case the sentencing judge was well entitled, on the facts and the law (see MC (a child) v The Queen [2003] WASCA 205 [20]; Lam v The State of Western Australia [2012] WASCA 246 [28]) to underscore the need for general deterrence. Moreover, the law must protect vulnerable essential service providers, including in regional and remote areas of this State where the needs are great.
35 Having regard to the seriousness of the circumstances of the sexual penetration offence, the sentence imposed by the sentencing judge was within the sound exercise of the sentencing discretion. It is not manifestly excessive.
Minimum period
36 Section 121(2) of the Young Offenders Act provides:
When sentencing an offender to detention for more than 12 months, the court may set a minimum period for which the offender is to remain in custody before the offender can be released under a supervised release order.
37 The minimum period set by the court cannot be less than that determined in accordance with the statutory formula in s 121(3). In this case the minimum period cannot be less than 17 months detention.
38 Section 121 confers on the court a discretion, subject to a statutory minimum. Thus the appellant must establish that the sentencing judge made an express or implied material error of fact or law in the exercise of that discretion. No express error is identified. Accordingly, the claim must be that the minimum period of 22.5 months is manifestly excessive.
39 The parties accept that the principles in Power v The Queen (1974) 131 CLR 623, Deakin v The Queen (1984) 58 ALJR 367 and Bugmy v The Queen (1990) 169 CLR 525 relating to parole apply to the minimum period under s 121(2), except to the extent modified by the sentencing objectives and principles in the Young Offenders Act.
40 There is no arguable basis that the minimum period of 50% of the appellant's period of detention is outside the sound discretionary range. I would refuse leave to appeal on ground 2.
Conclusion
41 Leave to appeal on ground 2 should be refused and the appeal dismissed.
42 BUSS JA: I agree with McLure P.
43 MAZZA JA: I agree with McLure P.
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