Pulleine v The State of Western Australia
[2023] WASCA 23
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: PULLEINE -v- THE STATE OF WESTERN AUSTRALIA [2023] WASCA 23
CORAM: MAZZA JA
VAUGHAN JA
HALL JA
HEARD: 21 OCTOBER 2022
DELIVERED : 7 FEBRUARY 2023
FILE NO/S: CACR 177 of 2021
BETWEEN: ANTHONY JASON PULLEINE
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram: BURROWS DCJ
File Number : IND 635 of 2020
Catchwords:
Criminal law - Appeal against sentence - Appellant convicted after trial of one count of sexual penetration without consent - Appellant had honest but unreasonable belief that victim consented - Appellant sentenced to 4 years' imprisonment - Whether sentence was manifestly excessive
Legislation:
Criminal Code (WA), s 24, s 325(1)
Result:
Leave to appeal granted
Appeal dismissed
Category: D
Representation:
Counsel:
| Appellant | : | Ms K Kumar |
| Respondent | : | Ms K C Cook |
Solicitors:
| Appellant | : | Kaminni Kumar |
| Respondent | : | Director of Public Prosecutions (WA) |
Case(s) referred to in decision(s):
Alalyani v The State of Western Australia [2018] WASCA 44
Alizada v The State of Western Australia [2021] WASCA 18
House v The King (1936) 55 CLR 499
Kabambi v The State of Western Australia [2019] WASCA 44
Lakay v The State of Western Australia [2019] WASCA 46
McNally v The State of Western Australia [2019] WASCA 93
Musgrave v The State of Western Australia [2021] WASCA 67
Taylor v The State of Western Australia [2019] WASCA 217
The State of Western Australia v Jacoby [2020] WASCA 150
The State of Western Australia v Syred [2020] WASCA 185
JUDGMENT OF THE COURT:
This is an appeal against sentence.
On 3 November 2021, the appellant was convicted after trial of one count of sexually penetrating K, without her consent, by penetrating her vagina with his penis, contrary to s 325(1) of the Criminal Code (WA) (the Code).
On 5 November 2021, Burrows DCJ sentenced the appellant to 4 years' immediate imprisonment to commence on that date with eligibility for parole.
Originally, the appellant relied on two grounds of appeal. Ground 1 alleged that the sentence was manifestly excessive as to type. Ground 2 alleged that the sentence was manifestly excessive as to length. At the hearing of the appeal, the appellant abandoned ground 1.[1] Ground 2 was maintained.
[1] Appeal ts 6.
For the reasons that follow, while we would grant leave to appeal on ground 2, the ground has not been made out and the appeal must be dismissed.
The facts
The facts of the offending as found by the sentencing judge are not challenged. We summarise them as follows.
The offence was committed on or about 26 January 2019. The appellant was, at the time, 47 years of age. He had known the complainant, who was of a similar age, for 12 to 14 years. The appellant and K were friends. Their friendship had always been platonic.
On the day of the offence, K and a male friend, P, attended at the home the appellant shared with his then partner, Ms B. K and P arrived at the appellant's home sometime after 8.00 pm. Together with the appellant and Ms B, they commenced drinking and socialising.
Prior to her arrival at the appellant's house, K had drunk about four full‑strength beers. After her arrival, she drank six to eight bottles of full‑strength beer and two shots of vanilla‑flavoured Galliano. The appellant drank about 10 cans of premixed spirits and had four to six shots of Galliano. Both the appellant and K were intoxicated.
Later that evening, K was shown to a spare bedroom by Ms B. K fell asleep on the bed by herself, fully clothed. P went to bed in a second spare bedroom by himself.
After K and P went to bed, the appellant and Ms B argued. The argument became physical. The appellant pushed and kicked Ms B. He followed her to various rooms in the house. Eventually, Ms B retreated to her daughter's bedroom, a room that the appellant never entered. There, she fell asleep alone.
At some point during the night, the appellant entered the bedroom in which K was sleeping. He removed her jeans and underwear and, while K was still unconscious, penetrated her vagina with his penis. Eventually, K awoke and said to the appellant, 'What are you doing?'. The appellant asked, 'Do you want me to leave?', to which K replied, 'Yes'. While this conversation occurred, the appellant was still penetrating K's vagina. K was unable to say when the appellant stopped penetrating her and had no recollection of the appellant leaving the bedroom.
When K awoke the following morning, the appellant was sleeping on a couch in the shed. K and P had coffee with the appellant and Ms B. All appeared normal. At this point, K had no memory of what had occurred during the night. However, while in an Uber on the way home from the appellant's house, K recalled that she had been sexually penetrated by the appellant. She became upset and, when she got home, she told P what had occurred. K then disclosed what had occurred to another friend. She also sent a text message to Ms B, telling her that she had woken up with the appellant on top of her.
Ms B confronted the appellant with what she had been told by K. The appellant was shocked and said, 'What have I done? She's my friend. I've never thought of her like that. I've known her for years. I've ruined a good friendship'. The appellant then broke down in tears.
Later that day, when the police attended at the appellant's house, he said that he had no recollection of what had occurred the previous night. The appellant maintained this position at trial.
The defence at trial
As we have just stated, at trial the appellant maintained that he had no recollection of what had occurred between him and K. He did not deny that he had sexually penetrated K as she alleged. Instead, relying on s 24 of the Code, the appellant ran a defence that he honestly and reasonably, but mistakenly, believed that he was sexually penetrating his partner, Ms B, who was consenting to the penetration.
The appellant's defence relied on the evidence of Ms B who testified to the effect that on previous occasions when the two of them had argued and the appellant had physically assaulted her, she would fall asleep and the appellant would come into her bed, wake her up, apologise and then engage in sexual activity with her consent. The appellant's evidence was that he did not ever have sex with Ms B while she was asleep; rather, he would apologise to her and, while she was awake, engage in consensual sexual activity with her.[2]
[2] ts 350 - 351.
Clearly, the jury was satisfied beyond reasonable doubt that the State had disproved the defence under s 24 of the Code.
Sentencing judge's findings as to the appellant's belief on the issue of consent
For the purposes of sentencing, her Honour found that the appellant had a mistaken belief that when he commenced having sex with K, he thought he was having sex with Ms B.[3] The sentencing judge explained her finding in this way:[4]
The factors which support that finding are your extreme level of intoxication, the darkness of the room, the similarity in build between the two women, the fact that you'd previously engaged in sex after an argument with Ms [B] in the spare room, and her evidence that she had awoken on occasion, to you having sex with her.
[3] ts 351.
[4] ts 351.
However, consistently with the jury's guilty verdict, her Honour found that the appellant's mistaken belief was not reasonable. Her Honour explained that no sober person in the appellant's position could have held such a belief. Her Honour noted that when the appellant engaged in sexual activity with Ms B after an argument, he apologised to her before he engaged in sexual activity and would not penetrate her while she was asleep and was unable to consent.[5]
[5] ts 352.
Her Honour stated her finding on the question of the appellant's belief as follows:[6]
I am satisfied that the appropriate basis for sentencing you is that whilst you might have had an honest belief that the person was Ms B, that belief was not a reasonable belief.
[6] ts 352.
While it may be thought that her Honour's finding that the appellant had an honest belief that he was having sex with his partner was generous to the appellant, it was consistent with the position taken by the State in the sentencing proceedings.[7]
[7] See email dated 4 November 2021 from the State prosecutor to the sentencing judge's associate, WAB 62.
The impact on the victim
A victim impact statement written by K was provided to the sentencing judge.
Since the offence, K has been diagnosed with post‑traumatic stress disorder and she suffers bouts of anxiety. She has experienced feelings of worthlessness and felt that her dignity had been taken away from her. K subsequently attempted to take her own life.
K wrote that she has found it difficult to cope with the fact that the offender was someone that she knew and felt safe with. She said that this factor has made it more difficult for her to know who to trust.
K referred to difficulties that she had encountered in her work which have resulted in a reduction in her income.
Her Honour described the impact of the appellant's offending upon K as 'significant' and 'profound', having an ongoing negative impact upon her.[8]
[8] ts 352.
The appellant's personal circumstances
At the time of the offence, the appellant was 47 years of age. He was 49 years old when sentenced. He was brought up in a country town and commenced work in a local butcher's shop as a teenager. The appellant has been employed for 35 years as a slaughterman for various employers. The sentencing judge received a letter from the appellant's employer confirming that the appellant was a valued employee who held a senior position on the processing floor.
The appellant has had long‑standing issues with alcohol and alcohol was a contributing factor to his offending behaviour. Although at the time of sentencing the appellant had reduced his alcohol consumption with the assistance of his current partner, he has not abstained from alcohol completely. Without the support of his current partner, her Honour was of the view that, following excessive alcohol consumption, the appellant posed a risk of reoffending in a similar manner.[9]
[9] ts 354.
At the time of sentencing, the appellant and his current partner had known each other for 32 years and had, before his relationship with Ms B, previously been in a relationship. The appellant has three adult children from that relationship. From 2011 until mid‑2020, the appellant was in a relationship with Ms B. The appellant reconnected with his current partner in 2016.
The appellant's excessive alcohol consumption marred his relationship with Ms B and his previous relationship with his current partner.[10]
[10] ts 353.
The appellant has a prior criminal history. Between 1991 and early 2003, the appellant was convicted of a number of relatively minor offences, consistently with his long‑standing problematic consumption of alcohol. The criminal history consists of driving offences, including driving with a blood alcohol content in excess of 0.08%, disorderly conduct, resisting arrest, assaulting a public officer and damage. The appellant has no prior convictions of a sexual nature. The appellant cannot be said to be a person of prior good character, although he has not been recently convicted of any offence.
The sentencing remarks
In her sentencing remarks, her Honour had regard to the following mitigating factors:
(a)The appellant has always been in stable employment and there is a prospect of returning to that employment in the future.[11]
(b)The appellant has strong family support from his current partner and his children.[12]
(c)The appellant truly regretted what had happened on the evening of the offence and there was evidence of remorse and victim empathy.[13]
[11] ts 354.
[12] ts 354.
[13] ts 354 - 355.
The sentencing judge identified the following aggravating factors:
(a)The appellant was well aware that K was intoxicated on the night of the offence, as a result of which she was 'rendered more vulnerable'.[14] K was alone and asleep in the room in which the offence was committed. By reason of her state of intoxication, she was unable to take any action to avoid the commission of the offence.[15]
(b)The appellant sexually penetrated K without any reasonable basis for believing that she might welcome the appellant's presence or be interested in any sexual interaction with him.[16]
(c)As a result of the offence, K had suffered significant emotional trauma and financial loss.[17]
(d)While K was not of an age where there was a risk of pregnancy, there was no evidence that the appellant had used a condom and K 'would naturally have been concerned about the prospect of catching an STI from the offence'.[18]
[14] ts 355.
[15] ts 355.
[16] ts 355.
[17] ts 355.
[18] ts 355.
Her Honour correctly observed that the circumstances of sexual offending and sexual offenders are variable and that there is no tariff for such offences. She noted that, in general, the authorities indicate that where an offender convicted of a sexual offence that included the absence of consent as an element had an honest but unreasonable belief that the victim was consenting, that offender will be less culpable than an offender who did not have an honest belief that the victim was consenting. However, the extent to which an honest belief will be a mitigating factor depends upon all of the relevant facts and circumstances.[19]
[19] ts 355 - 356.
Her Honour found that both general and specific deterrence were important sentencing considerations. Personal deterrence was important because there was 'a continued risk of … offending in a similar manner should [the appellant] become intoxicated to the degree that [he was] that night'.[20]
[20] ts 356.
The appellant's submissions
It was submitted on behalf of the appellant that the sentence imposed by her Honour was manifestly excessive having regard to the following factors:
(a)The appellant honestly, but mistakenly, believed that the person he was engaging in sexual intercourse with was Ms B and that she was a consenting party.
(b)The appellant did not behave in a predatory or overtly aggressive or forceful manner towards the victim and that the offence had not been opportunistic or pre‑planned.
(c)The appellant demonstrated remorse upon being confronted with the allegation by his then partner on the day of the offence.
(d)The appellant ceased the offending conduct 'as soon as the mistake was known'.[21]
[21] Appellant's submissions, WAB 22.
The appellant referred to a number of cases said to be comparable, being Alizada v The State of Western Australia;[22] The State of Western Australia v Syred;[23] The State of Western Australia v Jacoby;[24] Taylor v The State of Western Australia;[25] McNally v The State of Western Australia;[26] Lakay v The State of Western Australia;[27] Kabambi v The State of Western Australia[28] and Alalyani v The State of Western Australia.[29] In respect of these cases, it was submitted by the appellant that the conduct he engaged in was 'somewhat unique when compared to all of the [cited] cases'[30] and that a shorter term of immediate imprisonment than that imposed by her Honour was required.
[22] Alizada v The State of Western Australia [2021] WASCA 18.
[23] The State of Western Australia v Syred [2020] WASCA 185.
[24] The State of Western Australia v Jacoby [2020] WASCA 150.
[25] Taylor v The State of Western Australia [2019] WASCA 217.
[26] McNally v The State of Western Australia [2019] WASCA 93.
[27] Lakay v The State of Western Australia [2019] WASCA 46.
[28] Kabambi v The State of Western Australia [2019] WASCA 44.
[29] Alalyani v The State of Western Australia [2018] WASCA 44.
[30] Appellant's submissions, WAB 22.
The respondent's submissions
The respondent submitted that the offence committed by the appellant involved 'inherently serious criminal conduct'.[31] Having regard to the absence of evidence that the appellant had addressed his longstanding abuse of alcohol and that personal deterrence remained a relevant sentencing consideration, the respondent submitted that the appellant's mistaken belief, although a mitigating factor, did not significantly reduce the extent to which the appellant should be punished for his offending.[32]
[31] Respondent's submissions, WAB 29.
[32] Respondent's submissions, WAB 34.
The respondent also submitted that previous decisions of this court have noted that a sentence of 4 to 6 years' immediate imprisonment is not unusual for a single count of penile penetration of the vagina without consent, contrary to s 325(1) of the Code, where the victim is over the age of 16 years and there is no plea of guilty. The appellant received a sentence at the bottom of that range. The sentence imposed was therefore broadly consistent with customary sentencing standards.
Appellate sentencing principles
The legal principles applicable to a ground of appeal that alleges manifest excess are well established. A ground of appeal that claims that a sentence is manifestly excessive alleges an implied error on the part of the sentencing judge of the kind referred to in House v The King.[33] This court has no warrant to interfere with the sentence imposed at first instance unless, having regard to all of the relevant facts and circumstances, it is unreasonable or plainly unjust.
[33] House v The King (1936) 55 CLR 499, 505.
In order to determine whether a sentence for an individual offence is manifestly excessive, the offence should be viewed in light of the maximum sentence prescribed by law for it, the standards of sentencing customarily imposed with respect to it, the place that the criminal conduct occupies in the scale of seriousness of offences of that type and the offender's personal circumstances.
Disposition
The maximum penalty for the offence committed by the appellant is 14 years' imprisonment. As Pritchard JA (Quinlan CJ agreeing) observed in Musgrave v The State of Western Australia:[34]
The criminality which is prohibited by s 325(1) of the [Code] is the exercise of dominion over another person by violating that person's bodily integrity - an integral aspect of their human dignity - by the penetration of a part of their body (or by the manipulation of a part of their body so as to penetrate a part of the offender's body) without their consent to that conduct. Conduct of that kind involves an abject disregard by the offender for the victim's dignity as a human being and for their autonomy and bodily integrity.
[34] Musgrave v The State of Western Australia [2021] WASCA 67 [281].
In Musgrave, Buss P undertook a comprehensive analysis of the range of sentences imposed for a single count of penile penetration of the vagina without consent, contrary to s 325(1) of the Code.[35] While there is no tariff for the offence, Buss P noted that it was apparent from the decisions and observations of this court that a sentence of 4 to 6 years' immediate imprisonment would not be unusual for a single count where the complainant is of or over the age of 16 and there is no plea of guilty. In recent cases, a sentence of 5 to 6 years' immediate imprisonment has been said to be not unusual in those circumstances.[36]
[35] Musgrave [108] ‑ [113].
[36] Musgrave [113].
In Taylor, the appellant pleaded guilty on the morning the trial was scheduled to begin to one count of sexually penetrating the victim by penetrating her vagina with his finger without her consent, for which he was given a discount of 15% under s 9AA of the Sentencing Act1995 (WA). It was accepted that the offender, who was intoxicated at the time of the offence, may have had an honest, but unreasonable, belief that the victim was consenting. The appellant, although not a person with intellectual disability, nevertheless had 'borderline intelligence' which resulted in significant cognitive challenges, including problems with abstract reasoning, learning, insight, judgment and consequential thinking. The offender's intellectual impairment and the significant and ongoing health issues afflicting him contributed to this court reducing the sentence imposed at first instance of 3 years' immediate imprisonment to 2 years' immediate imprisonment.
In relation to the approach to be taken in a case where an offender honestly but unreasonably believes that the victim was consenting, the court in Taylor said:[37]
In general, an offender who has been convicted of a sexual offence which includes, as an element, the absence of consent, and who honestly but unreasonably believed that the victim was consenting to the act in question, will be less culpable than an offender who did not have an honest belief that the victim was consenting. However, whether and, if so, to what extent an honest belief will, in a particular case, be a mitigating factor, depends on all the relevant facts and circumstances. See, by analogy, PAS v The State of Western Australia [2009] WASCA 210 [99]; BGE v The State of Western Australia [2013] WASCA 136 [28].
[37] Taylor [96].
In the present case, the mitigating weight that could be given to this factor was diminished by the countervailing consideration that the absence of evidence of other steps taken by the appellant to address his longstanding abuse of alcohol meant that there was a risk he would reoffend in a similar way. The mitigating weight was further affected by the degree to which the mistaken belief was objectively unreasonable, as to which it is necessary to put aside the appellant's self‑induced intoxication. In our opinion, the appellant's belief that he was engaging in consensual sexual intercourse with Ms B was grossly unreasonable. Not only, in the circumstances as described, should the appellant have been aware of the identity of the victim, but, even on the appellant's evidence of his prior conduct with Ms B, he had never engaged in sexual activity with her after an argument without first seeking her consent, something he conspicuously failed to do in engaging in sexual intercourse with K. In all of these circumstances, the mitigating weight that could be given to the appellant's honest, but mistaken, belief was limited.
It is unnecessary to analyse in detail each of the cases cited by the appellant. Not unexpectedly, there are considerable variations in the facts of the offending and the circumstances of the offenders. In some of the cases cited by the appellant, the offenders had the advantage of youth or having pleaded guilty. It is sufficient for present purposes to state that the sentence of 4 years' immediate imprisonment imposed upon the appellant was consistent with the standards of sentences customarily imposed for an offence of the kind committed by the appellant.
While it is true that the appellant's offending was opportunistic and did not involve the use of overt aggression or force, circumstances which would have substantially increased the appellant's criminality, the offending was nevertheless serious. The appellant entered the bedroom in which K was sleeping fully clothed. He took advantage of her intoxicated state and lack of consciousness to engage in an act of penile penetration of K's vagina. Before doing so, he removed her jeans and underwear. Contributing to the seriousness of the offence is that it has had a very serious adverse psychological effect upon K, which is ongoing.
Having regard to all relevant facts and circumstances, including the mitigating factors found by the sentencing judge, which were emphasised by counsel for the appellant in argument before this court, we are satisfied that the sentence imposed upon the appellant was not unjust or unreasonable. In our opinion, the sentence reflected an appropriate exercise of the sentencing discretion. Implied error has not been established. While we would grant leave to appeal, the ground has not been made out. We would dismiss the appeal.
Orders
The orders we would make are as follows:
1.Leave to appeal on ground 2 is granted.
2.The appeal is dismissed.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
TDSM
Associate to the Honourable Justice Mazza
7 FEBRUARY 2023
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