Simon v The State of Western Australia

[2009] WASCA 10

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT :   THE COURT OF APPEAL (WA)

CITATION:   SIMON -v- THE STATE OF WESTERN AUSTRALIA [2009] WASCA 10

CORAM:   STEYTLER P

McLURE JA
MILLER JA

HEARD:   2 DECEMBER 2008

DELIVERED          :   13 JANUARY 2009

FILE NO/S:   CACR 72 of 2008

BETWEEN:   MALCOLM JAMES SIMON

Appellant

AND

THE STATE OF WESTERN AUSTRALIA
Respondent

ON APPEAL FROM:

Jurisdiction              :  DISTRICT COURT OF WESTERN AUSTRALIA

Coram  :JENKINS J

File No  :IND KUN 28 of 2007

Catchwords:

Criminal law - Sentencing - One count of sexual penetration of a child aged between 13 and 16 - Suspended sentence - Whether manifestly excessive - Whether imprisonment only appropriate deposition

Legislation:

Criminal Code (WA), s 321
Sentencing Act 1995 (WA), s 6(4), s 39(3), s 76(2)

Result:

Leave to appeal granted on grounds 1 and 1A
Leave to appeal refused on grounds 1B, 2 and 3
Appeal dismissed

Category:    D

Representation:

Counsel:

Appellant:     Mr R W Richardson

Respondent:     Mr R E Cock QC & Ms A M Seaman

Solicitors:

Appellant:     Aboriginal Legal Service (WA)

Respondent:     Director of Public Prosecutions (WA)

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

Deering v The State of Western Australia [2007] WASCA 212

Dempsey v The Queen (Unreported, WASCA, 9 February 1996, Library No 960059)

Germain v The State of Western Australia [2004] WASCA 293

Kakai v The Queen (Unreported, WASCA, 23 February 1999, Library No 990082)

Marris v The Queen [2003] WASCA 171

Miles v The State of Western Australia [2007] WASCA 258

Poulton v The State of Western Australia [2008] WASCA 97

R v Avery [2002] WASCA 136

R v Hunt [2002] WASCA 324

R v Sweetlove (Unreported, WASCA, 23 September 1996, Library No 960555)

Riggall v The State of Western Australia [2008] WASCA 69

Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473

The State of Western Australia v ABM [2004] WASCA 90

The State of Western Australia v Lee [2008] WASCA 150

Van Doorn v The State of Western Australia [2008] WASCA 177

1. STEYTLER P: The appellant was convicted, after pleading guilty, on one count of sexually penetrating a child over the age of 13 and under the age of 16, in contravention of s 321(2) of the Criminal Code (WA) (Code). He was sentenced to a term of 14 months' imprisonment, suspended for 12 months. He applies for leave to appeal against the sentence imposed.

The circumstances of the offence

1. The offence was committed in Kununurra.  The complainant was the appellant's next door neighbour.  Her sister was married to the appellant's brother.  The complainant was 14 years old.  The appellant was either 18 or 19 years old.  The evidence established only that he was born on either 10 January 1987 or 10 January 1988.  The offence took place when the complainant visited the appellant's house.  She and the appellant talked for a while.  The appellant asked her if she wanted to have sex.  She said that she did.  They went to the bedroom and a single act of sexual intercourse occurred.  The appellant wore a condom.  It is not in dispute that the complainant was a willing sexual partner.  She had previously had consensual sexual intercourse with others.

2. The offence came to light subsequently, when the complainant had a regular health check.  She was found to have a sexually transmitted disease.  She provided the police with the names of the persons with whom she had had intercourse.  The appellant, although one of these, was not the person responsible for transmitting the disease to the complainant.  When he was interviewed by the police, the appellant readily admitted the conduct that constituted the offence.  However, he said that, although he knew that the complainant was less than 16 years old (he had believed that she was 15), he did not know that it was an offence to have consensual sexual intercourse with a girl of that age.

The appellant's personal circumstances

1. The appellant was raised in a remote community in the north‑west of Australia.  He has a low level of literacy and is unable to write much more than his name.  Prior to this offence, he had no relevant criminal record.  His antecedents were good.

2. At the sentencing hearing, the appellant's counsel acknowledged that the appellant knew that he should not have had sexual relations with the complainant, and that he had told the complainant that she should not tell anyone what had happened, but said that this was only because he knew that the two families were close and that he would 'get a hiding' if his conduct was found out.  Counsel for the appellant re‑iterated the appellant's earlier comment to police that he was not aware that he had done anything illegal. 

3. The appellant pleaded guilty to the offence charged on the morning of a scheduled pre‑recording of the complainant's evidence.

Sentencing remarks

1. In her sentencing remarks, the sentencing judge accepted that the appellant had not known that it was against the law to have sex with a girl under 16 years of age.  She also accepted that the reason he had told the complainant not to tell anyone what had happened was because he knew that his family, and the complainant's family, 'would not think it was right'.  She said that he was 'about 19' at the time of the offence and that he had been born in 1987 or 1988. 

2. The sentencing judge mentioned that counsel for the appellant had asked her to take into account the case of Riggall v The State of Western Australia [2008] WASCA 69 (discussed later in these reasons). She said that she had done so. Then, after mentioning that the disparity in age as between the appellant and the complainant 'was not great', she went on to say that the complainant was younger than the complainant in Riggall.  She also mentioned that, unlike the complainant in Riggall, the complainant in the present case had not attempted in any way to deceive the appellant.  She went on to say:

   This offence is one of a number of similar offences for which I have sentenced men in the last two weeks and it is clear to me that offences of this type are not uncommon, in fact they appear to be far too common in this area of Western Australia.  In my view there is a need to impose a generally deterrent sentence for this offence.  However, I do take into account that … elements of abuse … , other than the difference in age, are not present in your case and I take that into account in determining the appropriate sentence for you.

   First, I must decide whether a sentence of imprisonment is appropriate for this offence, then I must determine the length of it, then I must decide whether it should be suspended … 

   In my view, because of the matters that distinguish this matter from the case of Riggall, and in view of all the facts, it is appropriate that a sentence of imprisonment be imposed on you … which reflects the seriousness of the offence and the need for a punishment which is both a specific deterrent to you and a general deterrent to others.  However, having regard to the matters that are personal to you, in my view that sentence can be suspended and you can be given the opportunity to serve that sentence in the community.

3. She then imposed the sentence of 14 months' imprisonment, suspended for 12 months, referred to at the commencement of these reasons.

The grounds of appeal

1. There were initially three grounds of appeal.  When the appeal came on for hearing, the appellant sought, and was granted, leave to add two additional grounds, numbered 1A and 1B.

2. Ground 1 asserts that the sentence is manifestly excessive having regard to the appellant's age, absence of any convictions, previous good character, admissions, plea of guilty and his personal circumstances, and taking into account the circumstances of the offending, including the consensual nature of the sexual act and the limited age disparity between the appellant and his victim.

3. Ground 1A contends that the sentencing judge erred in finding that her task was to determine 'whether a sentence of imprisonment is appropriate for this offence' and in finding that imprisonment was appropriate.  The appellant contends that her task was to determine whether a sentence of suspended imprisonment was the only appropriate disposition and that she should have concluded that a less serious option would have been appropriate.

4. Ground 1B contends that the sentencing judge erred in finding that the present case could be distinguished from Riggall because the complainant was younger than the complainant in Riggall.  The complainants in both cases were 14 years of age.

5. Ground 2 contends that the sentencing judge erred in her assessment of the appellant's moral culpability.  She is said to have blurred the distinction between the appellant's appreciation of moral wrongdoing relating to the age of the victim, on the one hand, and his appreciation of moral wrongdoing relating to the relationship between his and his victim's families, on the other.

6. Ground 3 (which was 'neither pressed nor withdrawn' during the hearing of the appeal) is that the sentencing judge erred in finding that the offence was of a particularly prevalent type in the East Kimberley region, without any proper basis for doing so and without having given counsel for the appellant an opportunity to address her on that topic.

Grounds 1 and 1A

1. Counsel for the appellant contended, in support of grounds 1 and 1A, that the sentencing judge did not appreciate, or overlooked, that, before imposing a sentence of suspended imprisonment, she was required to be satisfied that no lesser disposition was appropriate.  He referred, in this respect, to a number of well‑known provisions of the Sentencing Act 1995 (WA), none of which were mentioned by the sentencing judge. These were s 6(4) (which provides that a court must not impose a sentence of imprisonment unless it decides that the seriousness of the offence is such that only imprisonment can be justified or that the protection of the community requires it), s 39(3) (which provides that a court must not use a sentencing option in s 39(2) unless satisfied that it is not appropriate to use one of the less serious options listed in that subsection) and s 76(2) (which provides that suspended imprisonment is not to be imposed unless a term equal to that suspended would, if it were not possible to suspend imprisonment, be appropriate in all the circumstances).

2. Although she did not say so expressly, it is obvious from the sentencing judge's sentencing remarks that she reached the conclusion that the only appropriate option was a sentence of imprisonment and that the only questions for her to resolve were what should be the appropriate term and whether it should be suspended.  She did not consider any other options.  Moreover, she said, in the passage I have quoted from her sentencing remarks, that the facts made it appropriate that a sentence of imprisonment be imposed which reflected the seriousness of the offence and the need for deterrence.  The fact that she did not say, expressly, that a sentence of imprisonment was the 'only' appropriate disposition cannot lead to the conclusion, without more, that she was unaware of, or overlooked, the relevant provisions of the Sentencing Act.  As an experienced judge, she would obviously have been aware of them and the fact that she did not mention them does not inevitably lead to the conclusion that she overlooked them.  The more rational inference, in the context of her remarks read as a whole, as I have said, is that she was satisfied, because of the seriousness of the offence and the need for deterrence, that the only appropriate disposition was a sentence of imprisonment.  If that emerges from what she said with sufficient clarity, as in my opinion it does, there was no need for her to refer to the relevant provisions of the Sentencing Act.

3. That leaves the question whether some lesser penalty than a sentence of suspended imprisonment was appropriate. 

4. The legislature regards offences of the present kind very seriously. Section 321 of the Code provides that a person who sexually penetrates a child of or over the age of 13 years and under the age of 16 years is liable to imprisonment for 14 years, if the offender is over the age of 18. In a case in which the child is under the care, supervision or authority of the offender, the maximum penalty is one of 20 years' imprisonment. Where the offender is under the age of 18 and the child is not under his care, supervision or authority, the maximum penalty is a term of 7 years' imprisonment.

5. A review of the cases at an appellate level reveals that the courts have recognised the seriousness with which the legislature regards offences of this kind. It has often been said that the purpose of s 321 is not only to protect children from sexual predators, but also to protect them from themselves: see, for example, Kakai v The Queen (Unreported, WASCA, 23 February 1999, Library No 990082); R v Avery [2002] WASCA 136 [8]; Germain v The State of Western Australia [2004] WASCA 293 [31]; Poulton v The State of Western Australia [2008] WASCA 97 [5]; The State of Western Australia v Lee [2008] WASCA 150 [11]. In Deering v The State of Western Australia [2007] WASCA 212, Wheeler JA (with whom Owen & Miller JJA agreed) said [17] - [18]:

   It is, no doubt, undesirable that young people should embark upon sexual activity at an age at which they may be unable to fully comprehend or to cope with the social and emotional consequences of that activity.  To that extent, the legislation is intended to protect young people 'from themselves'. 

   However, the legislation is also, and, in my view, more importantly, directed to ensuring that those who do not consent to sexual activity are not required to engage in it.  In this context, it is recognised that the capacity of a person in this age group to resist moral, social, emotional or other pressure from a person more mature than themselves may be very limited.  I set out some of the legislative background in Marris v The Queen [2003] WASCA 171. At [13] of that decision, I noted the comment by the Hon J M Berinson, the then Attorney-General, that ' ... the clear intention and target is not sexual activity as such, but sexual activity involving some element of abuse'. I said there, and I repeat, that that is a concept of considerable importance in relation to sentencing in respect of offences of this kind. The greater the element of abuse, as evidenced by matters such as disparity in age, or the use of force, or other types of pressure, or of a pattern of 'grooming' behaviour, or a betrayal of trust, the greater the culpability.

6. In Riggall, after quoting the above passage from Deering, Wheeler JA (with whom Buss & Miller JJA agreed) said [20] ‑ [21]:

   This court has often encountered cases of sexual abuse of children, in which children have acquiesced, or children have been confused as to how they should respond, or in which, particularly if the abuse is introduced gradually and by a liked or trusted adult (in a way often described as 'grooming'), a child may come to enjoy in whole or in part the sexual attention to which they are subject.  Such reactions are far from a free and voluntary consent.  Indeed, reactions of that kind often contribute to the harmful effects of sexual abuse upon a child, by making the child feel guilt or shame for what he or she may perceive to be some complicity in the abuse. 

   Further, as I noted in Deering, it is, in any event, undesirable that young people should embark upon sexual activity at an age at which they may not be able to fully comprehend or cope with the social and emotional consequences of it.  While some may have that comprehension and capacity, particularly as they approach closer to 16, it is necessary for legislation to draw an arbitrary line, which must be respected.  It follows that, even where a young person between 13 and 16 does appear to wish to engage in sexual activity, there is a duty cast upon others to refrain from encouraging or acting upon those wishes.  The more mature the other person, the greater the degree of self-control which should be demanded of them. 

7. It has been said that it is only in rare and exceptional circumstances that a non‑custodial sentence should be imposed for an offence of sexual penetration of a child between the ages of 13 and 16:  see, for example, R v Sweetlove (Unreported, WASCA, 23 September 1996, Library No 960555), 8 (Malcolm CJ, Pidgeon & Murray JJ agreeing); Kakai (7, 8) (Malcolm CJ, Ipp & Anderson JJ agreeing); Germain [17] (McKechnie J, Murray & Simmonds JJ agreeing).

8. Of course, s 321(2) of the Code covers a very wide range of sexual activity and not all of it will justify a custodial sentence. At one end of the spectrum there might be a case concerning a mature 15‑year‑old complainant who freely consents to, or invites, a single act of penetration by an offender who is only marginally older. It has often been said that consent is not an element of the offence because of the view taken by the legislature that a child is not in a position to give meaningful consent by reason of immaturity, inexperience and, in some cases, because of the disparity in power that exists between an adult and a child: Marris v The Queen [2003] WASCA 171 [12] (Wheeler J). However, proven absence of consent would seriously aggravate the offending and the culpability of the offender: Poulton [3] (McLure JA). So, too, would abuse of a position or situation that enables the offender to influence, persuade, pressure, force, manipulate or otherwise take advantage of a child for the purpose of facilitating the commission of the offence: Poulton [4] (McLure JA); Lee [10] (McLure JA).

9. In Dempsey v The Queen (Unreported, WASCA, 9 February 1996, Library No 960059), Murray J listed a number of considerations (which were said not to be exhaustive) that would be relevant when sentencing an offender under s 321(7) of the Code. These were (pages 6 and 7):

   1.The nature of the conduct in question, the degree of perversion or deviance demonstrated.

   2.The relative ages of the offender and the victim.

   3.Whether the offender was in a position of trust or authority with respect to the victim, thus better enabling the commission of the offence.

   4.Whether there was, apart from such position of trust or authority, any element of coercive or forceful behaviour on the part of the offender.

   5.The circumstances of the victim and the degree to which that person was not only taken advantage of, but his or her corruption was contributed to by the commission of the offence.

   6.Whether the offence was repeated and if so over what period or periods of time so as to enable the court to consider whether it was of an isolated character or displayed recidivism on the part of the offender.

   7.The degree of remorse displayed and whether any such contrition has been effectively followed up by determined efforts to achieve the offender's rehabilitation.

   8.The youth of the offender.

   9.The extent to which the victim's co-operation in the commission of the offences was secured by friendship or by the offer of some reward.

   10.The actual impact of the commission of the offence upon the child established by a victim impact statement or otherwise.

   11.Whether the offender has a prior relevant criminal history.

   12.The prevalence of such offences in the community at the time and the degree to which particular circumstances indicate a heightened need to seek to achieve the protection of the community and particularly of young persons from the commission of such offences, whether with or without their consent.

10. What was said by Murray J has since been applied on a number of occasions:  see, for example, Avery [9]; R v Hunt [2002] WASCA 324 [7], [17]; Marris [11].

11. A review of the sentences that have customarily been imposed by courts at an appellate level with respect to offending of this kind reveals that, while there is undoubtedly no 'tariff', it is unusual to find a non‑custodial disposition.

1. In Kakai, the offender was convicted on one count of sexually penetrating a 13‑year‑old child.  He pleaded guilty to the offence.  He was 18 years old at the time.  The complainant and a friend went to the offender's home to attend a party that he was holding.  He had met her earlier that day and invited her to the party.  After the party had broken up the offender, the complainant and others went to a nearby home unit.  There, the offender and the complainant engaged in sexual intercourse.  The offender believed that the complainant was 15 years old. 

2. When questioned by police, the offender readily admitted what he had done.  He had a minor record in the Children's Court.  This did not encompass any sexual offending.  He was sentenced to a term of 2 1/2 years' imprisonment.  On appeal, this was reduced to a term of 18 months' imprisonment (12 months' imprisonment after allowing for the operation of the transitional provisions enacted by the Sentencing Legislation Amendment and Repeal Act 2003 (WA)). Malcolm CJ (with whom Ipp & Anderson JJ concurred) said that it was 'a notorious fact that there is a considerable disparity in terms of maturity and experience between a 13‑year‑old female and an 18‑year‑old male'.

3. In Avery, the 20‑year‑old offender pleaded guilty to 16 charges of sexual offences, contrary to s 321 of the Code, against a 13‑year‑old complainant. The offences were committed on three separate occasions. They comprised 10 counts of indecent dealing, four of digital penetration, one of cunnilingus and one of penile penetration. The respondent and the complainant had met on an internet chat line. There was some evidence of 'grooming' behaviour by the respondent. The nature of the offending had escalated over a two‑week period. The offender had no prior convictions and was of good character. He was sentenced, for each offence of indecent dealing, to a term of 1 year's imprisonment. For each offence of sexual penetration he was sentenced to a term of 2 years' imprisonment. All sentences were ordered to be served concurrently, giving rise to a total sentence of 2 years' imprisonment. The State appealed. The Court of Appeal saw no need to interfere with the individual sentences imposed. However, some of the offences were ordered to be served cumulatively, resulting in a total term of 4 years' imprisonment.

4. Hunt was another State appeal.  The offender had pleaded guilty, at the first opportunity, to six counts of sexual penetration of a 14‑year‑old girl.  He was then 28 years old.  The offender and the complainant had formed a relationship after the complainant's family had moved into premises next door to the house in which the offender lived.  The two of them had sexual intercourse on at least six occasions.  The relationship lasted four months.  The complainant's mother was aware of it and 'acquiesced' in it.  The offender was sentenced to a total term of 3 years' imprisonment (2 years if the transitional provisions had been applicable).  The appeal was dismissed.

5. In Marris, the offender was convicted on two counts of indecent dealing and four counts of sexual penetration of a 13‑year‑old girl.  He pleaded guilty to all counts.  Each of the offences was committed during a single episode.  The offender was then 20 years old.  He was remorseful and presented a low risk of re‑offending.  He had no prior record and had very favourable references.  There were no elements of perversion or deviance, nor any premeditation or calculation.  The sexual conduct was voluntary.  There was no need, even, for persuasion of the complainant.  The offender was sentenced to a total of 3 years' imprisonment.  The appeal succeeded and the balance of the terms imposed by the sentencing judge were suspended for a period of 18 months.

6. The State of Western Australia v ABM [2004] WASCA 90 involved a State appeal against the sentences imposed on an offender in respect of three counts of sexual penetration of a child aged between 13 and 16 years. The complainant was aged between 14 and 15 years at the time of the offences. She attended a school for people with intellectual disabilities. The respondent, who was 9 years older than the complainant, was in a de facto relationship with the complainant's cousin. That relationship had produced three young children. The respondent had good antecedents. The complainant had been a consenting participant to the sexual activity and had invited the respondent into her bed. The offender pleaded guilty to one of the counts of sexual penetration (penile penetration) but was convicted by a jury on the other two counts (digital penetration and cunnilingus). He was sentenced, in respect of the offence to which he pleaded guilty, to a term of 18 months' imprisonment, suspended for 18 months. In respect of the other two offences he was sentenced to an 18‑month intensive supervision order with programme and supervision requirements.

7. In the appeal, Wheeler J accepted that, ordinarily, the offences committed by the respondent called for terms of imprisonment to be served immediately.  She said that this was particularly true of the offence of penile penetration to which the offender had pleaded guilty.  However, she declined to interfere.  Malcolm CJ agreed with her.  Miller J, in dissent, would have imposed a total term of 2 years' imprisonment, after allowing for the operation of the transitional provisions.

8. In Germain, the offender was convicted, after pleading guilty on the fast‑track, on three counts of sexual penetration of a 12‑year‑old complainant (one of cunnilingus, one of fellatio and one of digital penetration) and three counts of indecent dealing with the complainant.  The appellant, who was 27 years old, met the complainant at a party.  Both were intoxicated.  Later that night, each of the offences was committed.  The complainant was a willing participant.  She told the offender that she was 14 years old.  The offender had no prior convictions and was spoken highly of by referees.  It was accepted that he had no paedophilic orientation.  He was sentenced to a total term of 2 years and 8 months' imprisonment, after allowing for the operation of the transitional provisions.  His appeal was dismissed.

9. In Deering, the offender pleaded guilty on the fast‑track to one count of digital penetration and four counts of penile penetration of a 13‑year‑old child.  The appellant was then aged 23.  The offender had been invited by the complainant's mother to live in her home.  Within one or two months of moving in, the offender commenced a sexual relationship with the complainant.  This lasted approximately a year.  Some six months into the relationship, the complainant's mother learned of it and asked the appellant to leave the house.  He did so, but continued the relationship for a further six months.  When the complainant's mother learned that the relationship had continued, she contacted the police.  The offender made prompt admissions, without which the prosecution case might not have been easy.  The offender had no prior convictions for sexual offences, although he had been convicted of offences of dishonesty.  He had positive references.  He was sentenced to a term of 18 months' imprisonment in respect of the digital penetration (count 1) and to terms of 3 years and 6 months' imprisonment in respect of each of the acts of penile penetration (counts 2 to 5).  The sentences were structured so as to give rise to a total sentence of 5 years' imprisonment.  The offender's appeal succeeded.  A term of 8 months' imprisonment was imposed on count 1 and terms of 1 year and 10 months' imprisonment were imposed in respect of each of counts 2 to 5.  The offences were structured so as to give rise to a total term of 2 years and 6 months' imprisonment.

10. In Miles v The State of Western Australia [2007] WASCA 258, the offender pleaded guilty to two counts of sexual penetration of a 14‑year‑old girl. The two had gone out together. After consuming alcohol the offender took the complainant to his house. There, he performed cunnilingus on her and then had sexual intercourse with her. He was 22 years old at the time. He had no prior record and expressed remorse for his offending. He was sentenced to a total term of 21 months' imprisonment. His application for leave to appeal was refused.

11. In Riggall, the 22‑year‑old offender formed a sexual relationship with the 14‑year‑old complainant, resulting in a number of offences being committed by the offender. However, the complainant had lied about his age, leading the offender to believe (reasonably, in all of the circumstances) that the complainant was 19 years old. Moreover, the evidence suggested that the complainant had been the instigator of the conduct. When the offender discovered the complainant's true age, he immediately put an end to the sexual aspects of the relationship. He co‑operated fully with police, pleaded guilty to each offence charged and was remorseful. He was sentenced to a community‑based order. On appeal, this was set aside and the court ordered that there be a spent conviction order and imposed no penalty. Wheeler JA (with whom Buss and Miller JJA agreed) said that it was 'difficult to imagine these offences being committed in circumstances less worthy of blame' [50]. She also described the case as 'exceptional' and 'rare' [79].

12. In Poulton, the offender was convicted, after pleading guilty, on three counts of sexual penetration of a 14 -year‑old girl, one count of indecent dealing with her (fondling her breasts) and one count of indecently recording the child by recording his indecent dealing with her on a mobile telephone.  The offender was 23 years old at the time.  He believed that the complainant was 15 years old.  There was no evidence that the offender positively exploited any influence or vulnerability for the purpose of committing the offences.  Rather, he was presented by the complainant with opportunities which he availed himself of.  He ceased any sexual contact with the complainant when he learned that she was 14 years old and not 15, as he had believed.  He had a prior record, but it did not encompass any convictions for offences of a sexual nature.  He had not previously been sentenced to a term of imprisonment.  He was sentenced to terms of 2 years' imprisonment on each count of penile penetration and to terms of 9 months' imprisonment on each of the other counts.  The sentences were structured so as to give rise to a total term of 4 years' imprisonment.  The appeal succeeded on totality grounds.  An aggregate sentence of 2 years and 9 months' imprisonment was substituted for the aggregate of 4 years' imprisonment.

13. In Lee, the offender was convicted on two counts of having a sexual relationship with a child under the age of 16 years, contrary to s 321A of the Code. Each count related to a separate complainant. The offence against the first complainant occurred shortly prior to her 16th birthday. The sexual contact involved seven instances of penile penetration and four instances of digital penetration of the complainant's vagina. The relationship with the second complainant started on the day before her 15th birthday. The sexual contact consisted of four acts of penile penetration of the complainant's vagina. At the time of both offences the respondent was aged 25. The respondent had understood from the first complainant that she was 16 years old when the sexual relationship commenced. However, that is not a defence to an offence under s 321A unless the offender was not more than three years older than the child: s 321A(7). The uncontradicted evidence from the respondent was that each complainant displayed a strong interest and attraction towards him, which he reciprocated. The sentencing judge accepted that the second complainant's mother requested that he engage in a sexual relationship with her daughter. The respondent pleaded guilty to both counts. He had no relevant record and his antecedents were favourable. He was sentenced to a term of 18 months' imprisonment on each count, to be served cumulatively.

14. The State appealed.  By a majority (Steytler P & McLure JA), the appeal was dismissed.  The majority found that there was no reasonable basis for a finding that the first term of 18 months' imprisonment was manifestly inadequate.  The second term was found to be low, but not so low as to fall outside the range of a sound sentencing discretion.  Miller JA would have increased each term to one of 2 years' imprisonment and the aggregate sentence to one of 4 years' imprisonment.

15. In Van Doorn v The State of Western Australia [2008] WASCA 177, the appellant was convicted, after pleading guilty, on three counts of indecently dealing with a 13‑year‑old child, one count of attempting to sexually penetrate the child, two of sexually penetrating the child and one of using electronic communications to expose her to indecent material. The offender was then aged 29. The offender and the complainant were neighbours. The two had become attracted to each other. They engaged in consensual sexual activity on a number of occasions. Two of the offences of indecent dealing were described as trivial, at best, having involved only brief kisses on the complainant's mouth. A third count of indecent dealing involved the appellant grabbing the complainant on the buttock with his hand. Two of the counts of sexual penetration had taken place on the same occasion. The appellant's penis had fallen out of the complainant's vagina and he had re‑inserted it. The charge of using electronic communication to expose the child to indecent material had involved the offender sending a photograph of his penis to the complainant. The appellant was a person of prior good character who had believed that he was in love with the complainant. He was sentenced to a total term of 4 years' imprisonment. After a successful appeal, this was reduced to a total term of 2 years and 6 months' imprisonment.

16. As I have foreshadowed, this review of the cases reveals that non‑custodial dispositions are unusual for offending of this kind, although each case must, of course, depend upon its individual circumstances. The fact that non‑custodial dispositions are unusual reflects the seriousness with which offences against s 321 of the Code are viewed by the legislature. It is significant that, even in the case of an offender who is aged less than 18, s 321(7) provides for a maximum penalty of 7 years' imprisonment.

17. In the present case there are strong factors in mitigation.  The appellant was young (either 18 or 19) and was only 4 or 5 years older than the complainant (who he believed to have been 15).  He was immature for his age.  There was no element of coercion, or even persuasion, and no breach of trust.  The offence was isolated.  The complainant, already sexually experienced, was a willing participant.  The appellant, who had a disadvantaged background that had led to a very limited formal education, did not know that what he had done was illegal.  He knew that it was wrong, but only because it would incur the disapproval of his and the complainant's families because of the close relationship between the two families.  His antecedents were good.  He pleaded guilty to the offences. 

18. While these are telling factors, in my opinion they are not sufficient to have made it appropriate to impose any sentence other than one of imprisonment.  As I have said, young people are intended to be protected, not only from sexual predators (I would not describe the appellant in that way), but also from themselves.  This complainant was only 14 years old.  The appellant believed that she was a year older than that but, even then, he should have appreciated that his conduct was inappropriate because of her age, even if he did not know that it was illegal.  While the age gap was not as large as it is in many cases, it was not insignificant.  As I have said, there was a difference of some 4 or 5 years.  Even allowing for his immaturity, there is a significant difference between a 14‑year‑old and an 18‑year‑old. 

19. As the sentencing judge remarked, deterrence is a very significant factor.  This is reinforced by the fact that, as she said, the offence was one of a number of similar offences that she had been required to deal with in that location.  Having regard for the relevant principles as they have been enunciated by the courts, and taking into account the standards of sentencing customarily observed, I am not persuaded that the sentencing judge erred in imposing a sentence of suspended imprisonment.

20. I should mention that we were referred to four instances in which community‑based orders had recently been imposed by sentencing judges in respect of what was said, in each case, to have been similar offending in similar circumstances.  It is enough to say in that respect that, while each case must, as I have stressed, depend upon its individual circumstances, the relevant principles and customary standards of sentencing are those that have been established at an appellate level by the cases to which I have referred.

Ground 1B

1. The conclusion at which I have arrived in respect of grounds 1 and 1A makes it unnecessary for me to address ground 1B. The fact that the sentencing judge distinguished one case that had been referred to her on two bases, one of which was inaccurate (and which seems to me to have been, by far, the less significant of the two), is irrelevant to the outcome of the appeal. In my opinion, no different sentence should have been imposed even if, which I very much doubt, the mistake was material to the sentence imposed by the sentencing judge: s 31(4) of the Criminal Appeals Act 2004 (WA).

Ground 2

1. Similarly, even if the sentencing judge erred in her assessment of the appellant's moral culpability, this does not assist the appellant, given my conclusion that no different sentence should have been imposed.  In any event, I am not persuaded that the sentencing judge made an error of the kind contended for.  She expressly acknowledged that the appellant had not understood that it was against the law to have sex with a girl under 16.  She said, rightly, that the appellant knew that his family, and the

complainant's family, would not have thought it was right for him to have sex with the complainant.  Even though he did not know that it was unlawful to have sex with a girl who was under the age of 16, the appellant must have known that age was at least a factor in the likely disapproval from the two families, as the sentencing judge found.

Ground 3

1. I have said that ground 3 was 'neither pressed nor withdrawn'.  In my opinion, there is no substance to it.  As I have said, the sentencing judge had herself sentenced a number of men in the previous two weeks for offences of a similar kind.  That experience was a sufficient justification for the comment she made to the effect that offences of that kind were far too common in the area in question.  There was no need for her to give counsel an opportunity to comment on that issue.

Conclusion

1. I would grant leave to appeal, but only in respect of grounds 1 and 1A. They appear to me to have been the only grounds that had a reasonable prospect of succeeding: s 9(2) of the Criminal Appeals Act and Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473. I would dismiss the appeal on those grounds.

2. McLURE JA:  I agree with Steytler P.

3. MILLER JA:  I agree with Steytler P.