R v Clark
[2000] WASCA 229
•28 AUGUST 2000
R -v- CLARK [2000] WASCA 229
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2000] WASCA 229 | |
| COURT OF CRIMINAL APPEAL | |||
| Case No: | CCA:27/2000 | 3 MAY 2000 | |
| Coram: | KENNEDY J PIDGEON J WHEELER J | 28/08/00 | |
| 6 | Judgment Part: | 1 of 1 | |
| Result: | Appeal dismissed | ||
| PDF Version |
| Parties: | THE QUEEN BRADLEY CLARK |
Catchwords: | Criminal law Sentence Crown appeal Aggravated sexual assault Whether sentence manifestly inadequate Principles Sentence of 3 years 8 months upheld Mitigating and aggravating factors |
Legislation: | Nil |
Case References: | Lowndes v The Queen (1999) 195 CLR 665 R v Podirsky (1989) 43 A Crim R 404 R v Ginder (1987) 23 A Crim R 1 R v Allpass (1993) 72 A Crim R 561 R v Peterson [1984] WAR 329 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : COURT OF CRIMINAL APPEAL CITATION : R -v- CLARK [2000] WASCA 229 CORAM : KENNEDY J
- PIDGEON J
WHEELER J
- Appellant
AND
BRADLEY CLARK
Respondent
Catchwords:
Criminal law - Sentence - Crown appeal - Aggravated sexual assault - Whether sentence manifestly inadequate - Principles - Sentence of 3 years 8 months upheld - Mitigating and aggravating factors
Legislation:
Nil
Result:
Appeal dismissed
(Page 2)
Representation:
Counsel:
Appellant : Mr D Dempster
Respondent : Mr R G W Bayly & Mr G P O'Brien
Solicitors:
Appellant : State Director of Public Prosecutions
Respondent : Bayly & O'Brien
Case(s) referred to in judgment(s):
Lowndes v The Queen (1999) 195 CLR 665
R v Podirsky (1989) 43 A Crim R 404
Case(s) also cited:
R v Ginder (1987) 23 A Crim R 1
R v Allpass (1993) 72 A Crim R 561
R v Peterson [1984] WAR 329
(Page 3)
1 KENNEDY J: I have had the benefit of reading in draft the reasons to be published by Wheeler J, with which I entirely agree. Having regard also to the principles summarised by the High Court in Lowndes v The Queen (1999) 195 CLR 665, at 671 - 672, in my opinion, this appeal should be dismissed.
2 PIDGEON J: I agree with the reasons to be published by Wheeler J.
3 WHEELER J: On 17 December 1999 the respondent was found guilty after trial and convicted of one count of aggravated sexual penetration without consent, the circumstance of aggravation being that the complainant was between the ages of 13 and 16 years. On 31 January 2000 he was sentenced to 3 years and 8 months' imprisonment with an order for parole eligibility. The Crown appeals against that sentence.
4 Briefly, the relevant facts are as follows. In April 1998 the complainant, who was then some few days short of her 15th birthday, attended a family celebration at a local hotel. She drank spirits and beer at the hotel and consumed more alcohol thereafter at the family farmhouse where celebrations continued. The respondent was present at both locations. He was then aged 20 years and approximately 10 months and had also consumed alcohol on that night, although he does not appear to have been significantly intoxicated. The complainant, on the other hand, was very intoxicated and in the early hours of 10 April, became ill. The respondent persuaded the complainant to take a walk with him, suggesting that it would make her feel better. Family members realised at some time that the complainant was missing and went searching for her. Various people called out the complainant's name without response, but some distance from the rear of the farmhouse a cousin of the complainant found the respondent lying on top of the complainant. Both were naked from the waist down. The complainant appeared to be unconscious and her cousin found her difficult to rouse. She was assisted back to the house. She recalled going, or falling, to the ground but had little recollection of events thereafter until her cousin appeared.
5 The respondent did not deny having sexual intercourse with the complainant and did not deny that he was aware that she was under 16 years of age. He did not give evidence at trial. The sole issue at trial was whether the complainant had consented to the sexual intercourse that took place; in effect, whether the complainant had been unconscious at the relevant time.
(Page 4)
6 The Crown concedes that the sentencing remarks of the learned trial Judge do not reveal any failure to take into account any relevant feature or any taking into account of a factor which ought not to have been considered. The sole ground of appeal is simply that the sentence is manifestly inadequate, having regard to all of the circumstances of the case.
7 Before turning to consider the issue of the length of sentence, it is convenient to outline briefly the more significant factors to which her Honour referred. So far as the circumstances of the offence are concerned, her Honour referred to the fact that the respondent had taken advantage of the complainant in her intoxicated state without regard for her wellbeing or dignity, to the age difference between the respondent and the complainant, to the fact that the respondent did not reply to family members searching for the complainant, and to the distress and embarrassment caused to the complainant and her family by the offence.
8 By way of mitigating factors relevant to the offence, her Honour referred to the fact that it appeared to be an opportunistic offence, lacking any significant premeditation; to the fact that the respondent played no role in causing the complainant to become drunk; to the fact that he had been consuming alcohol, which may have explained reckless behaviour; and to the absence of any physical intimidation or force in the commission of the offence. There were significant personal mitigating factors which were referred to by her Honour. They included the respondent's relatively youthful age, his willingness to comply with the court's directions, his generally good antecedents and lack of any significant record of convictions, and the large number of extremely positive character references submitted on his behalf.
9 There are two matters referred to by the Crown as aggravating features which do not appear to me to be viewed in that way in her Honour's sentencing remarks. The first of these is that the Crown asserts that the respondent is not remorseful, while her Honour said to the respondent that "it is of concern that you lack, to a degree, insight into your offending and that must in turn affect your level of remorse". Her Honour's characterisation is, I think, more accurate. It appears that the respondent accepted throughout that he was guilty of an offence by reason of the complainant's age and his knowledge of her age.
10 The second issue is that the Crown asserts that the respondent "betrayed the family trust between his family and the complainant's". This appears to me to be putting it far too highly. As her Honour noted
(Page 5)
- during the course of sentencing submissions, the respondent was not particularly well known to the complainant but their respective families had been known to each other for some time. This was not a case in which there was any position of power or authority, nor was there a position of "trust", as it is normally understood. The most that can be said is that by reason of the friendship between the two families, the respondent was probably treated by the complainant and her family without that suspicion which might be extended to complete strangers.
11 A single act of sexual assault, which involves penetration of the vagina by the penis, will commonly attract a sentence of about 6 years' imprisonment. Such an offence accompanied by a circumstance of aggravation, where that circumstance is that the complainant is under the age of 16 years, will generally attract a sentence of approximately 8 years. However, there is no tariff in relation to sexual assault offences: R v Podirsky (1989) 43 A Crim R 404 at 411 per Malcolm CJ.
12 I would add that the mechanical application of a tariff in such cases would lead to the imposition of sentences which could be far too lenient in some cases and too severe in others. A very significant feature of the majority of sexual assault offences is the element of fear caused to the victim. Whether it is committed by a stranger or by a person known to the victim, the victim will almost inevitably have real fears about the degree of force to which the offender may resort in order to overcome resistance, or to further humiliate her, or to ensure her silence. Many victims fear for their lives and nearly all fear further violence of some kind. The experience is seen by the victim as a degrading one both at the time, and in recollection after the event, and this too is a significant feature of the offence. The extent to which the circumstances are likely to give rise to such fears and to such feelings will be significant factors in determining the seriousness of the particular offence. Where the victim is under 16, questions of betrayal of trust and corruption of children may also be very significant aggravating features.
13 In my view, the absence of any intimidation and the absence of any force other than that necessarily involved in sexual penetration of an unconscious woman, together with the age of the complainant, suggest that the offence, although serious, was not to be viewed as being of the level of seriousness usually encountered in those offences involving sexual penetration of a female under the age of 16. Further, there were as I have mentioned very significant mitigating factors personal to the respondent. In addition, in a case of this kind, factors which may be of considerable significance are the relative apparent maturity of
(Page 6)
- complainant and offender, which factors are clearly best able to be assessed by a trial Judge. Relevant also is the detail of all the surrounding circumstances which may demonstrate a relatively greater or lesser degree of disregard for the welfare and dignity of the complainant; these too are circumstances best able to be appreciated by a trial Judge. I can discern no suggestion in her Honour's sentencing remarks that she misused the advantage which she had in these respects. Although I think it may accurately be said that her Honour's approach to sentencing showed some leniency, it is my view that in the particular circumstances of this case, and having regard to the factors personal to the respondent, the sentence is not of itself so low as to demonstrate error.
14 One other matter, which requires mention, is the precision of the length of sentenced imposed. The Crown suggested that a sentence of 3 years and 8 months' imprisonment was an unusually precise one and that that circumstance suggested that there may have been some erroneous method of calculation underlying it. The most that can be said is that such a sentence is not a conventional one, sentences being more usually expressed in periods of whole or half years. However, there is, in my view, nothing about a sentence of 3-2/3 years, which necessarily suggests any erroneous calculation. It may simply be, as the respondent suggests, that her Honour's very careful weighing of all the aggravating and mitigating factors led her to the view that a sentence of close to 4 years' imprisonment should be imposed, while at the same time leading her Honour to the view that a sentence of a full 4 years would be excessive.
15 I would dismiss the appeal.
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