R v Cleak
[2004] WASCA 72
•8 APRIL 2004
R -v- CLEAK [2004] WASCA 72
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2004] WASCA 72 | |
| COURT OF CRIMINAL APPEAL | |||
| Case No: | CCA:116/2003 | 5 FEBRUARY 2004 | |
| Coram: | STEYTLER J WHEELER J MCKECHNIE J | 8/04/04 | |
| 8 | Judgment Part: | 1 of 1 | |
| Result: | Appeal allowed, Respondent re-sentenced | ||
| B | |||
| PDF Version |
| Parties: | THE QUEEN DANIEL JOHN CLEAK |
Catchwords: | Criminal law and procedure Sentencing Sexual penetration without consent Offender aged 18 years of age at the time of the offence Remorse Turns on own facts |
Legislation: | Nil |
Case References: | Brockman v The Queen, unreported; CCA SCt of WA; Library No 970044; 4 February 1997 R v Clark [2000] WASCA 229 R v Podirsky (1989) 43 A Crim R 404 R v Quartermaine [2000] WASCA 341 Wimbridge v The Queen [2001] WASCA 248 Hodder v The Queen (1995) 15 WAR 264 R v Chilvers [2003] WASCA 87 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : COURT OF CRIMINAL APPEAL CITATION : R -v- CLEAK [2004] WASCA 72 CORAM : STEYTLER J
- WHEELER J
MCKECHNIE J
- Applicant
AND
DANIEL JOHN CLEAK
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram : VIOL DCJ
File Number : IND 483 OF 2002
Catchwords:
Criminal law and procedure - Sentencing - Sexual penetration without consent - Offender aged 18 years of age at the time of the offence - Remorse - Turns on own facts
(Page 2)
Legislation:
Nil
Result:
Appeal allowed
Respondent re-sentenced
Category: B
Representation:
Counsel:
Applicant : Mr P J Urquhart
Respondent : Ms J T Fisher
Solicitors:
Applicant : State Director of Public Prosecutions
Respondent : Justine Fisher
Case(s) referred to in judgment(s):
Brockman v The Queen, unreported; CCA SCt of WA; Library No 970044; 4 February 1997
R v Clark [2000] WASCA 229
R v Podirsky (1989) 43 A Crim R 404
R v Quartermaine [2000] WASCA 341
Wimbridge v The Queen [2001] WASCA 248
Case(s) also cited:
Hodder v The Queen (1995) 15 WAR 264
R v Chilvers [2003] WASCA 87
(Page 3)
1 STEYTLER J: I have had the advantage of reading the reasons for decision of Wheeler J. I agree with them and with her Honour's conclusion that the appeal should be allowed and the sentence imposed by the learned sentencing Judge quashed, with a term of 20 months' imprisonment, with eligibility for parole, being substituted in lieu. There is nothing I wish to add.
2 WHEELER J: This is a Crown appeal against sentence. On 10 June 2003 the respondent pleaded guilty to one count of sexual penetration without consent. That plea was entered at the conclusion of the prosecutor's opening address after the commencement of the respondent's trial for that offence. On 18 July 2003 the respondent was sentenced to a term of 18 months' imprisonment, suspended for a period of 12 months. The sexual penetration involved the penetration of the complainant's vagina with the respondent's penis.
3 Without knowing anything else about the circumstances, it can at once be seen that the sentence was very significantly below that generally imposed for an offence of that kind, and it can also be seen that the offence was not one normally likely to attract suspension of sentence. There may of course be exceptional cases in which the circumstances are such that either a term as low as 18 months might be appropriate, or a term of imprisonment which was imposed might be suspended. However, having considered the circumstances of this offence, I have concluded that the sentence imposed was, as it appears at first impression to have been, manifestly inadequate so as to require correction.
4 The circumstances of the offence were as follows. The respondent turned 18 on 25 October 2001, and on 27 October had a party at home, where he lived with his parents, to celebrate that occasion. He had many friends there for the party and they drank alcohol, talked, and listened to music. It appears that the respondent also used some marijuana. The complainant was a young woman of 16 years of age whom the respondent had known for most of his life. He was a good friend of her older brother's. There had been no romantic involvement between them; in fact, she considered him to be "like a brother" to her. She drank a substantial quantity of alcohol and became very intoxicated. By about midnight, she was obviously affected by alcohol and was falling asleep at the table where she sat. Her friends suggested that she should lie down and the respondent suggested that she could lie down on his bed because he was planning not to go to bed but to party all night.
(Page 4)
5 The complainant's friends took her to the respondent's bed and put her on it, wearing most of her clothes, but not her shoes. She immediately fell into a dead sleep and sometime later awoke to a tugging sensation with a person pulling her jeans up. A voice she recognised as that of the respondent said to her words to the effect of "You're so sexy". She heard the sound of him zipping up his clothes and saw him leaving the room. She then became aware of a stinging sensation in her vagina and of the fact that her clothes were disarranged. She realised that he had had sex with her.
6 Immediately after the offence the complainant walked down the road to a telephone booth and attempted to telephone her mother but was unable to do so. She went back to the respondent's house to get her bag and was seen by a friend, shaking and crying. She immediately told her friend what had happened. The news spread quickly at the party and the respondent went out to the front of the house where the complainant was sitting with her friends and denied that anything had happened with the complainant that night. The complainant was examined at the Sexual Assault Resource Centre, where physical findings were made consistent with the complainant's story and DNA samples were taken of fluid from her vagina. That DNA matched the profile of the respondent. The respondent was interviewed by police and denied the offence entirely. He told police he had a clear recollection of the evening.
7 The respondent made a plea of guilty at the conclusion of the Crown's opening address. The explanation given by the respondent's counsel for his maintaining the plea of not guilty until that date was that he had consumed such a quantity of alcohol and marijuana that he had not recalled having intercourse with the complainant at all. In a further and different explanation of his belief about the night in question, the respondent told a psychologist who prepared a report for the learned sentencing Judge that he had "over time" remembered small details and realised that he was guilty. His account was that he had entered the bedroom where the complainant was "semi-conscious", that he had spoken to her, and that "she didn't say no but she didn't say yes either". He considered that she was "half asleep" at the time.
8 There was a verbal pre-sentence report, given by a community justice officer, which referred to the respondent's unremarkable childhood, supportive family and good work ethic. Some concern was expressed about his use of alcohol. Although it appeared he had commenced alcohol and cannabis use at around 17 years of age, there was a driving offence in 2000 involving alcohol and the present offence obviously also involved
(Page 5)
- alcohol. Concern was expressed that, without participation in a programme to address issues that contributed to his offending, the risk of further offending by the respondent remained high.
9 A report later prepared by a psychologist confirmed the social history given by the community justice officer. It also referred to some concern in relation to alcohol use. It referred to the results of tests which indicated that the respondent accepted responsibility for his behaviour and that he understood that his actions were wrong. Contrary to the views of the community justice officer, the psychologist suggested that the respondent did not need a sex offender treatment programme, but would benefit from some education regarding "informed consent, appropriate boundaries and recognising sexual cues". It is not clear to me why the emphasis in the report is on what is described as "informed consent" since the offence to which the respondent pleaded guilty, and the facts as I have outlined them, demonstrate that there was no consent, informed or otherwise. It should perhaps be noted, for the sake of completeness, that the findings in the psychological report were made at a time subsequent to the learned sentencing Judge's informing the respondent that he was adjourning the matter for a further report and after some discussions between the Judge and the respondent's counsel in which his Honour expressed concern about whether the respondent was inclined to "face up to his responsibilities".
10 His Honour referred to certain features of the offence which he considered aggravating, being the age of the complainant, the fact that she was obviously drunk and unable to exercise her right to refuse consent, and what his Honour described as "an element of breach of trust" because of the prior relationship. His Honour referred to the effect of the offence upon the complainant, in very broad terms. So far as mitigating factors were concerned, his Honour referred to the plea of guilty and the fact that the respondent had just turned 18. He referred to the respondent's previous good character. He also referred to the ingestion of a considerable amount of alcohol and the use of marijuana. It is curious that this factor found its way into the list of mitigating factors, since intoxication per se is not generally mitigating. His Honour referred to the disruption to the respondent's family and social circle as a result of the offence and to the fact that the family had moved to Karratha, apparently as a result of the offence. His Honour accepted that the offence was out of character and that the respondent was unlikely to repeat it in the future. His Honour also accepted that the respondent's remorse was genuine. Those mitigating factors were the reasons given by his Honour both for the 18 month term and for its suspension.
(Page 6)
11 Most of the factors referred to by his Honour were mitigating, although the weight to be given to them is another question. There are two factors, however, which require some comment. The first is that it does not appear to me that either the verbal or the written pre-sentence report suggested that the offence was wholly "out of character". Even the psychological report, which was much more favourable towards the respondent, suggested that he had some unspecified difficulty in relation to issues of consent.
12 The issue of remorse is more problematic. In a mature adult, the actions of the respondent in first wholly denying the offence and then giving two different explanations for his denial, would be difficult to reconcile with any genuine remorse. However, it must be remembered that the respondent was only 18 years of age, and that acceptance of responsibility is something which is learnt over time. I accept it is possible to take the view that in a relatively immature person, remorse may co-exist with a dishonest attempt to avoid the consequences of one's actions. In the present case, I note also that there is before his Honour a letter written by the respondent's parents, the terms of which suggest that they may not wish to appreciate fully the seriousness of the offence alleged against the respondent. That may be why the learned sentencing Judge referred to the fact that there seemed to him to be "some other matters of some pressure" which led in part to the lateness of the plea of guilty. In those circumstances, despite the apparent unlikelihood of there being a genuine remorse, it seems to me that it was open to the learned sentencing Judge to take the view that at least some degree of remorse did exist.
13 Even accepting all of the matters referred to by the learned sentencing Judge, however, I am unable to see how a sentence of the leniency of this one could properly have been imposed. The dominant sentencing considerations in cases such as this are punishment, and general and personal deterrence: Wimbridge v The Queen [2001] WASCA 248 at [17]. The maximum penalty for the offence of sexual penetration without consent, in the absence of circumstances of aggravation, is 14 years imprisonment. While there is no tariff for such offences, the general range of sentences commonly imposed for a single act of penetration of the vagina with the penis where the victim is over the age of 16, remains of the order of about 6 to 9 years. A sentence of 6 years is generally at the lower end of the scale and is often the sentence imposed after taking into account mitigating factors: R v Podirsky (1989) 43 A Crim R 404 at 411, Brockman v The Queen, unreported; CCA SCt
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- of WA; Library No 970044; 4 February 1997 at 8 per Malcolm CJ, R v Quartermaine [2000] WASCA 341 at [16].
14 In the present case, there were some aggravating factors of the offence, particularly the breach of the trust which the complainant actually reposed in the respondent, to which the learned sentencing Judge referred. However, other factors placed it towards the lower end of the range of such offences. In particular, there was an absence of any intimidation and an absence of any force other than that necessarily involved in the sexual penetration of an unconscious woman: see R v Clark [2000] WASCA 229. It is to be noted also that, although the respondent took advantage of the complainant's intoxication, there is no suggestion that he procured or encouraged her to become intoxicated so that he could commit the offence. Rather, the offence appears to have been of an unpremeditated and opportunistic kind.
15 Turning to mitigating factors, I accept that some credit may be given for the plea of guilty even though it came so very late, and I accept that it was open to his Honour to form the view that there was at least some degree of genuine remorse. The respondent was otherwise apparently of good character. Most importantly, he was very young. Had the offence occurred but a few days earlier, the sentencing regime applicable to adult offenders would not have applied to him at all. Of course, even young offenders are generally imprisoned for offences of this kind, but personal considerations do assume a greater significance in respect of such offenders.
16 Even giving full weight to all the mitigating factors, and placing the offence towards the lower end of offences of the kind, I am unable to see how a sentence of less than 3 years imprisonment could conceivably have been imposed. So far as the suspension is concerned, it seems to me that in the case of sexual penetration without consent that involves the penetration of the complainant's vagina with the offender's penis, the circumstances either of the offence or of the offender would have to be wholly exceptional in order to justify the suspension of a term of imprisonment. While there were mitigating factors of some significance in this case, the circumstances of the offence and of the offender could not be described as exceptional.
17 In my view, the appropriate sentence then would have been one of 3 years imprisonment to be served immediately. However, there is a further factor to which regard must be had. This is a Crown appeal. The "double jeopardy" element of such appeals is demonstrated by the
(Page 8)
- circumstances of this case. We were informed that since he had been sentenced, the respondent had returned to Karratha to work, that he was in steady employment and had refrained from any other offending. He has been living in that way since he was sentenced more than six months ago. For those reasons, in re-sentencing the respondent, it would in my view be appropriate to deduct a further 6 months from the term which would otherwise have been appropriate. The sentence that I would have imposed upon the respondent then is one of 2 years and 6 months' imprisonment. Because of the provisions of the Sentencing Legislation Amendment and Repeal Act 2003, that term must be reduced by one-third. I would therefore allow the appeal, quash the sentence imposed by the learned sentencing Judge and in lieu thereof substitute a term of 20 months' imprisonment, with eligibility for parole.
18 MCKECHNIE J: For the reasons given by Wheeler J, with which I am in agreement, I would allow the appeal, quash the sentence, and in lieu substitute a term of 20 months' imprisonment with parole eligibility.
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