Tapper v The State of Western Australia - [2016] WASCA 140

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE COURT OF APPEAL (WA)

CITATION: TAPPER -v- THE STATE OF WESTERN AUSTRALIA [2016] WASCA 140

CORAM: BUSS P
MAZZA JA
MITCHELL JA

HEARD: 6 MAY 2016

DELIVERED : 5 AUGUST 2016

FILE NO/S: CACR 185 of 2015

BETWEEN: DEAN MATTHEW TAPPER
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent

ON APPEAL FROM:
Jurisdiction              :  DISTRICT COURT OF WESTERN AUSTRALIA
Coram  :O'NEAL DCJ
File No  :IND 1613 of 2014

Catchwords:

Criminal law - Appeal against sentence - Three counts of sexual penetration of a child of or over the age of 13 years and under the age of 16 years - Very late pleas of guilty - Appellant aged 43 and child aged 15 - Appellant wilfully blind as to child's age - Sentence of 2 years' immediate imprisonment on each count - Terms of imprisonment ordered to be served concurrently - Manifest excess - Alleged express errors by the sentencing judge in making findings of fact for the purposes of sentencing

Legislation:

Criminal Appeals Act 2004 (WA), s 31(4)(a)
Criminal Code (WA), s 321(2), s 321(7)(a)
Sentencing Act 1995 (WA), s 6, s 7, s 8, s 39, s 76, s 81

Result:

Appeal dismissed

Category: B

Representation:

Counsel:

Appellant: Mr A D Sullivan
Respondent: Ms A C Longden

Solicitors:

Appellant: Legal Aid (WA)
Respondent: Director of Public Prosecutions (WA)

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

Brand v The State of Western Australia [2011] WASCA 269
Buckley v The State of Western Australia [2015] WASCA 242
Deering v The State of Western Australia [2007] WASCA 212
Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321
Fogg v The State of Western Australia [2011] WASCA 11
GNR v The State of Western Australia [2015] WASCA 5
Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665
Pallister v The State of Western Australia [No 2] [2015] WASCA 221
Poulton v The State of Western Australia [2008] WASCA 97
Riggall v The State of Western Australia [2008] WASCA 69; (2008) 37 WAR 211
Skipworth v The State of Western Australia [2008] WASCA 64
Sunfly v The State of Western Australia [2009] WASCA 22
The State of Western Australia v SJH [2010] WASCA 40; (2009) 200 A Crim R 228

BUSS P: The appellant appeals against sentence.
He was charged on indictment with three counts of sexual penetration of C, a child of or over the age of 13 years and under the age of 16 years, contrary to s 321(2) of the Criminal Code (WA) (the Code).
Count 1 alleged that on a date unknown between 31 May 2012 and 1 December 2012, at a Perth suburb, the appellant sexually penetrated C by penetrating her vagina with his penis. Count 2 alleged that, on the same date and at the same place as in count 1, the appellant sexually penetrated C by again penetrating her vagina with his penis. Count 3 alleged that on another date unknown between 31 May 2012 and 1 December 2012, at a Perth suburb, the appellant sexually penetrated C by penetrating her vagina with his penis.
At the time of the offending, the appellant was aged 43 and C was aged 15.
Initially, the appellant pleaded not guilty to each of the counts. A three‑day trial was listed to begin on 22 June 2015. However, on the morning of 22 June 2015, before the trial began, the appellant entered pleas of guilty to all of the counts.
A sentencing hearing was listed for 24 June 2015. However, a dispute emerged as to some of the material facts and, consequently, the hearing was adjourned to a trial of issues on 17 September 2015.
At the trial of issues the issue to be determined, as a matter relevant to mitigation, was the appellant's belief about C's age.
The sentencing judge, O'Neal DCJ, found that the appellant's 'state of mind about [C's] age was at best, in my view, wilful blindness and [the appellant] took the risk that she was 16 years old' (ts 99).
On 17 September 2015, the appellant was sentenced to 2 years' immediate imprisonment on each count. The terms of imprisonment were ordered to be served concurrently. A parole eligibility order was made.
I would dismiss the appeal. My reasons are as follows.

Overview of the facts and circumstances of the offending

At the time of the offending, the appellant was a serving police officer with the West Australian Police Service and C was a high school student.
The appellant became acquainted with C on an online dating website. They communicated online before meeting in person. C's online profile stated that she was aged 19. She represented on her Facebook profile that she was 18. She told the appellant that she was aged 19.
As to counts 1 and 2, on an unknown date between 31 May 2012 and 1 December 2012, the appellant collected C in his car from a library connected to and near her school. She was wearing her school uniform. The appellant took her to his home in a Perth suburb. The appellant penetrated C's vagina with his penis in the lounge room of the house (count 1). They had sexual intercourse again in the bedroom (count 2). Afterwards, the appellant drove C to the library where he had previously collected her.
As to count 3, on another occasion between 31 May 2012 and 1 December 2012, the appellant again collected C from the library connected to or near her school and took her to his home. Prior to the appellant collecting her, C had changed from her school uniform into other clothing. Once again, they had sexual intercourse (count 3). Afterwards, the appellant drove C, at her request, to a train station.
In early December 2013, C disclosed the offences. She participated in an electronically recorded interview. She described the circumstances of the offending and acknowledged that she had falsely informed the appellant that she was aged 19. C willingly participated in the sexual activity that had occurred.
On 10 December 2013, police executed a search warrant at the appellant's home. During the search, the appellant participated in a video‑recorded interview. He admitted having had sexual intercourse with C on two separate occasions.
It was not in dispute, either before the sentencing judge or at the hearing of the appeal, that:
(a)the appellant, and not C, took the initiative in the acts of sexual intercourse which occurred;
(b)the appellant's sole interest in C was to have sex with her secretly and then send her on her way; and
(c)the appellant did not have any affection for C.

The trial of issues

At the trial of issues, two State witnesses, JM and BG, gave evidence. The appellant also gave evidence.
JM said that in 2013, while she was sharing a house with the appellant, he told her, with regret, that a girl with dark skin had 'modelled' for him (ts 64). The appellant told JM:
[H]e'd slept with her and she was very adamant that she was 18 but he'd picked her up from school in a uniform and he felt so bad cos he ‑ he kept saying, 'I should have checked her for ID' (ts 64).
JM also said in cross‑examination that the appellant had told her 'he wasn't sure himself [of C's age]; that he should have asked her for ID because he had a suspicion' (ts 68). The appellant asserted in his evidence that this conversation did not happen (ts 76).
BG gave evidence that in 2013 she was sharing a house with the appellant and JM. She recounted two conversations involving the appellant.
The first conversation occurred at the house she shared with the appellant and JM. The appellant said, in substance, that there was nothing wrong with people from different racial backgrounds being together (ts 69). The appellant said in his evidence that it was possible this conversation took place (ts 76).
The second conversation occurred while the appellant, BG and JM were in a car together after the appellant had collected BG and JM from a train station. They discussed 'photo shoots' (ts 69). According to BG, the appellant said he liked 'a girl in … uniform', and 'the younger the better' (ts 69 ‑ 70). The appellant said in his evidence that this conversation did not happen (ts 76).
The appellant gave evidence that about six months prior to the offending he joined an online dating website called 'Flirt'. This service connected users with each other for the purpose of arranging 'shorter term relationships' (ts 74). He created a profile. C contacted him via the website. They exchanged messages online before arranging to meet in person.
The appellant gave the following evidence as to his state of mind about C's age:
(a)The website, Flirt, required users to declare that they were over the age of 18. C's age was listed on the website as 19 (ts 74, 76).
(b)During one of their first online conversations, shortly after her birthday, the appellant asked C 'you've just had a birthday' and 'is that you've just turned 19' (ts 75).
(c)The appellant also asked C during an online conversation if she had a driver's licence or a learner's permit. She replied 'no'. Her father did not allow her to have a licence. At another time, the appellant asked C during an online conversation whether they could meet at a hotel to have a drink. C replied that her father did not allow her to drink (ts 75).
(d)The appellant and C arranged to meet. It was agreed that the appellant would collect her from a library. The library was attached to the school but operated by the council of the local government (ts 75).
(e)When the appellant collected her, C was wearing her school uniform. She was from Africa. C explained that she had arrived in Perth halfway through the school year and, as a result, had to repeat the year. She was in year 12 and two years behind (ts 75 ‑ 76).
The appellant made a number of comments about C's age while he was interviewed by police during their search of his house:
(a)The appellant said 'I have asked her many times and, um, always got the same, um, she's African and that she had, um, had to repeat, um, or she started late so she was older than the people in her year … I double‑checked that many, many times' (VROI 18).
(b)When asked if he believed C, the appellant replied 'I didn't to start with, but yeah, she was adamant' (VROI 18).
(c)The appellant said he had asked C about her age 'four or five [or a] dozen times' (VROI 30).
The appellant agreed, in cross‑examination, that when they began messaging each other online he had not believed C was being truthful about her age (ts 80 ‑ 81). He also accepted that he had not told the interviewing police officers that he had asked C whether she had a driver's licence or a learner's permit (ts 82 ‑ 84).
At the conclusion of the trial of issues, the sentencing judge rejected the appellant's claim that he had honestly believed that C was of or over the age of 16 (ts 97‑ 98). His Honour did not accept that the appellant had asked C 'for some identification like a driver's licence' (ts 98). The appellant had been evasive in his evidence (ts 98). The appellant's state of mind about C's age was 'at best … wilful blindness' (ts 99).

The sentencing judge's sentencing remarks

The sentencing judge recounted in his sentencing remarks the facts and circumstances of the offending.
The appellant was aged 43 at the time of the offending and was 46 when sentenced.
He completed year 12 at school. At the time of the offending he was a serving police officer. He was a member of the police service between 1996 and 2014. He resigned after being charged and was unemployed when sentenced. As far as his Honour was aware, the appellant had served honourably, apart from the offences in question. He had received several commendations.
The appellant had no prior criminal record. The sentencing judge received written references from people who knew the appellant. One of the references was from a woman with whom the appellant had recently commenced a de facto relationship. The woman has three children from previous relationships. She spoke highly of the appellant's character and conduct towards her and her children.
His Honour referred to a number of mitigating factors that he took into account. First, the appellant ultimately pleaded guilty, but the plea was very late. His Honour reduced the head sentence he would otherwise have imposed for each offence by 10% pursuant to s 9AA of the Sentencing Act 1995 (WA). Secondly, there was 'a degree of cooperation' by the appellant with the investigating police (ts 101). Thirdly, the appellant's antecedents were 'very good' (ts 101). Fourthly, the appellant was not at a significant risk of reoffending. Fifthly, the appellant's status, at the time of the offending, as a police officer would result in imprisonment being more onerous for him than would ordinarily be the case.
However, the sentencing judge was of the view that there was 'no more than a relatively modest amount of contrition and remorse for [the] offending' (ts 101).
His Honour said he was conscious of the fact that C claimed to be aged 19. Also, it could not be said that the appellant's actions 'corrupted the girl or that there was any particular perversion' (ts 101). She had prior sexual experience. However, his Honour was not satisfied that the appellant honestly believed that she was of legal age (ts 101). His Honour observed that there was 'a lack of the ordinary aggravating factors … or a number of commonly seen aggravating factors' and, accordingly, the appellant's offending was not 'at the high end of the scale' (ts 101). His Honour then said:
Because of the large gap in age, though, and what must be, as I say, at least a very strong suspicion on your part about her age, you chose ‑ and you choosing to ignore that suspicion, there is nonetheless some element of abuse, as described in the authority of Riggall v The State of Western Australia [2008] WASCA 69 (ts 101).
The sentencing judge decided that, in view of the seriousness of the offending, a term of imprisonment was the only appropriate disposition. After reviewing all of the relevant facts and circumstances, his Honour also decided that, despite the mitigating factors, it was not appropriate to suspend or conditionally suspend the terms of imprisonment he had imposed. His Honour commented:
The fact that there are two occasions when the offending occurred shows a degree of persistence, despite your obvious and understandable doubt about the claimed age of the girl. There is a particular need with this kind of offending to demonstrate the community’s condemnation and deter others from a similar wilful blindness in the face of the obvious. These laws are imposed to protect children, even children who don’t recognise their own need for protection (ts 103).

The ground of appeal

The appellant's sole ground of appeal alleges that the sentencing judge erred in imposing a sentence 'in type and length that was manifestly excessive'.
There are three particulars of the ground.
The first particular asserts that the sentence was manifestly excessive having regard to the nature of the offending, the circumstances in which it was committed and the mitigating factors.
The second particular asserts that his Honour erred in finding that:
(a)the age difference between the appellant and C was, of itself, an aggravating factor; and
(b)there was 'an element of abuse'.
The third particular asserts that his Honour erred in finding that the appellant's wilful blindness required that the sentence of imprisonment be served immediately due to the need to protect children from themselves.
On 11 January 2016, Mazza JA granted leave to appeal.
It is apparent, on analysis, that the three particulars are, in essence, individual grounds of appeal.
The first particular alleges, in substance, an implied error by the imposition of sentences that were manifestly excessive in type and length. In other words, the wrong type of sentence was imposed: the terms of imprisonment should have been suspended. Alternatively, if the terms of imprisonment should not have been suspended, the length of each term, namely 2 years, was beyond the proper exercise of the sentencing judge's discretion.
The second particular alleges, in substance, express errors by his Honour in making the findings in question.
The third particular alleges, in substance, an express error by his Honour in making the relevant finding.
I will deal with the substance of each particular in turn.

The merits of the first particular of the ground of appeal

A ground of appeal which alleges that a sentence is manifestly excessive asserts the existence of implied error. It is necessary, in determining whether a sentence is manifestly excessive, to examine it from the perspective of the maximum sentence prescribed by law for the relevant offence, the standards of sentencing customarily observed with respect to that offence, the place which the criminal conduct occupies on the scale of seriousness of offences of the kind in question, and the personal circumstances of the offender.
The discretion conferred on sentencing judges is, of course, of fundamental importance and this court may not substitute its opinion as to sentencing for that of the sentencing judge merely because it would have exercised the discretion in a different manner. See Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665 [15] (Gleeson CJ, Gaudron, McHugh, Gummow, Kirby, Hayne & Callinan JJ).
In Western Australia, the statutory sentencing principles are set out in pt 2 of the Sentencing Act. By s 6(1), a sentence imposed on an offender must be commensurate with the seriousness of the offence. This is a fundamental sentencing principle. Section 6(2) provides that the seriousness of an offence must be determined by taking into account the statutory penalty for the offence (par (a)); the circumstances of the commission of the offence, including the vulnerability of any victim of the offence (par (b)); any aggravating factors (par (c)); and any mitigating factors (par (d)). By s 7(1), aggravating factors are those factors which, in the court's opinion, increase the culpability of the offender. Section 7(2) provides that an offence is not aggravated by the fact that the offender pleaded not guilty to it (par (a)); the offender has a criminal record (par (b)); or a previous sentence has not achieved the purpose for which it was imposed (par (c)). By s 8(1), mitigating factors are those factors which, in the court's opinion, decrease the culpability of the offender or decrease the extent to which the offender should be punished.
In the present case, the maximum penalty for the offence of sexually penetrating a child of or over the age of 13 years and under the age of 16 years, contrary to s 321(2) of the Code, was 14 years' imprisonment. See s 321(7)(a) of the Code.
The absence of 'consent' in fact by the child is not an element of the offence created by s 321(2). Also, 'consent' in fact by the child is not a defence.
The public policy and purpose underlying s 321(2) is not only to protect children from abuse by sexual predators, but also to protect children from themselves. See Deering v The State of Western Australia [2007] WASCA 212 [17] (Wheeler JA, Owen & Miller JJA agreeing); GNR v The State of Western Australia [2015] WASCA 5 [61] (McLure P, Buss & Mazza JJA agreeing).
In Deering, Wheeler JA observed, in the context of s 321(2):
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 R [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 [17] ‑ [18]. (emphasis added)

In Riggall v The State of Western Australia [2008] WASCA 69; (2008) 37 WAR 211 [19], Wheeler JA (Buss JA agreeing) cited that passage in Deering. Later in her reasons in Riggall, Wheeler JA reiterated that the presence or absence of an element of 'abuse' is of considerable importance in sentencing for offences of the kind created by s 321(2). Her Honour then said:
The greater the element of abuse, generally evidenced by matters such as significant disparity in age, or use of force, or other types of pressure, or grooming behaviour, the greater the criminality [48]. (emphasis added)
A free and voluntary 'consent' by the child is not irrelevant in sentencing an offender who has committed an offence against s 321(2), but its relevance and weight will vary considerably, depending upon the particular facts and circumstances. See Riggall [22].
In The State of Western Australia v SJH [2010] WASCA 40; (2009) 200 A Crim R 228, Wheeler JA made these observations about the circumstances in which proved absence of 'consent', absence of evidence concerning 'consent', and proved free and voluntary 'consent' may be an aggravating, neutral or mitigating factor:
Proved absence of consent or, particularly, knowledge of absence of consent is aggravating: Poulton v The State of Western Australia [2008] WASCA 97 per McLure P at [3]. I would add that it may be aggravating that the consent has been procured through what might be described as persistent grooming or persuasion, or by the use of some other sort of influence falling short of coercion. Absence of evidence concerning consent is, of course, neutral. However, knowledge of free and voluntary consent, particularly where the child has initiated the conduct in question, would appear to me to be mitigating, when regard is had to the legislative structure and purpose described above. Whether a fact is aggravating or mitigating is to be considered in connection with the purpose for which it is to be used: R v Storey [1998] 1 VR 359 at 371, cited in Weininger v The Queen [2003] HCA 14; (2003) 212 CLR 629, 638. If the primary purpose of the legislation is to protect children from 'abuse', actual absence of abuse, would appear, necessarily, to be mitigatory [69].
There is no tariff for sex offending (including, in particular, offending against s 321(2)) because of the great variation that is possible in the circumstances of the offending and the offenders. The sentence to be imposed in a particular case depends on its individual facts and circumstances, having regard to the maximum penalty and all relevant sentencing factors.
The guidance afforded by comparable cases is flexible rather than rigid. The mere fact a sentence is within the range of other sentences imposed for similar offending does not necessarily establish that there was an appropriate exercise of the sentencing discretion in the particular case. Similarly, the mere fact a sentence is outside the range does not necessarily establish that the exercise of the sentencing discretion in the particular case miscarried.
A sentencing range for comparable offences is merely one of the factors to be taken into account in deciding whether an individual sentence is manifestly excessive or a total effective sentence infringes the first limb of the totality principle. A range of sentences customarily imposed is of significance for the purpose of ensuring broad consistency in the sentencing of offenders in broadly comparable cases. However, a sentencing range for comparable cases does not fix the range of a sound exercise of the sentencing discretion in a particular case.
When this court dismisses an appeal against sentence, and when it allows an appeal against sentence and resentences the offender, this court's decision on the sentencing outcome does not, of itself, fix the upper or lower limit of the range.
I have examined numerous cases of offending against s 321(2) including Deering; Riggall; Poulton v The State of Western Australia [2008] WASCA 97; Sunfly v The State of Western Australia [2009] WASCA 22; SJH; Brand v The State of Western Australia [2011] WASCA 269; GNR; Pallister v The State of Western Australia [No 2] [2015] WASCA 221; Buckley v The State of Western Australia [2015] WASCA 242; and the cases referred to in those decisions. It is unnecessary to reproduce the relevant facts and circumstances or the sentences imposed in the previous cases. There are some comparable features between some of those cases, on the one hand, and the present case, on the other, but there are also distinguishing features.
By s 6(4) of the Sentencing Act:
A court must not impose a sentence of imprisonment on an offender unless it decides that -
(a)the seriousness of the offence is such that only imprisonment can be justified; or
(b)the protection of the community requires it.
Section 76 of the Sentencing Act provides, relevantly:
(1)A court that sentences an offender to a term of imprisonment, or to an aggregate of terms of imprisonment, of 60 months or less may order that the whole of the term or terms be suspended for a period set by the court; but not more than 24 months.
(2)Suspended imprisonment is not to be imposed unless imprisonment for a term or terms equal to that suspended would, if it were not possible to suspend imprisonment, be appropriate in all the circumstances.
Similarly, s 81(1) of the Sentencing Act provides that a prescribed court that sentences an offender to a term of imprisonment, or to an aggregate of terms of imprisonment, of 60 months or less may order that the whole of the term or terms be suspended for a period set by the court, but not more than 24 months, subject to certain conditions. Section 81(2) provides that conditional suspended imprisonment is not to be imposed unless imprisonment for a term or terms equal to that suspended would, if it were not possible to suspend imprisonment, be appropriate in all the circumstances.
The limit of 5 years specified in s 76(1) and s 81(1) reflects Parliament's view that if an offender is sentenced to a term of imprisonment, or to an aggregate of terms of imprisonment, in excess of the specified limit, the offending will be of an order of seriousness which precludes suspension or conditional suspension.
The limit of 5 years also reflects Parliament's view that a term of imprisonment, or an aggregate of terms of imprisonment, may appropriately be suspended even though the offender has committed an offence or offences that are of sufficient seriousness as to warrant a sentence or total sentence of 5 years' imprisonment.
A court must not impose a term of immediate imprisonment unless satisfied, having regard to the sentencing principles set out in div 1 of pt 2 of the Sentencing Act, that it is not appropriate to impose suspended or conditional suspended imprisonment. See s 39(2) and s 39(3).
A sentencing judge must be positively satisfied that it is not appropriate to suspend or conditionally suspend a term of imprisonment before the term can be ordered to be served immediately. In a borderline case, it may be reasonably open to impose different types of sentences. See Skipworth v The State of Western Australia [2008] WASCA 64 [11], [13] ‑ [14] (McLure JA); Fogg v The State of Western Australia [2011] WASCA 11 [9] (McLure P, Mazza J agreeing).
The discretion to suspend or conditionally suspend a term of imprisonment is not confined by considerations relating to rehabilitation. See Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321 [18] (Gleeson CJ & Hayne J), [26] (Gaudron & Gummow JJ), [84] (Kirby J). The objective features of an offence may, in a particular case, outweigh the personal considerations of rehabilitation. See Dinsdale [86].
I have set out at [35] above the passage from the sentencing judge's sentencing remarks, in the present case, in which his Honour states that there was 'some element of abuse', on the appellant's part, 'as described in [Riggall]' (ts 101). In my opinion, when the passage is read in the context of the sentencing remarks as a whole, his Honour was merely referring to the large gap in age between the appellant and C. In Riggall [48], Wheeler JA referred to a 'significant disparity in age' as generally evidencing an 'element of abuse'. Also see Deering [18]. In the present case, his Honour's characterisation of the large gap in age between the appellant and C as involving 'some element of abuse' was, in the context of the facts and circumstances of the offending as a whole, correct. The age difference could also properly be described, in the context of the facts and circumstances of the offending as a whole, as an aggravating factor.
In the present case, his Honour's reference to the appellant's state of mind about C's age as involving 'at best … wilful blindness' (ts 99) connoted, in the context of the sentencing remarks as a whole, the following:
(a)the appellant did not honestly believe that C was of or over the age of 16;
(b)the appellant believed that there was a real risk that C was not aged 19, as she had told him, and that C may well be under the age of 16; and
(c)notwithstanding his recognition of that real risk, the appellant deliberately refrained from requiring proof of C's age, and proceeded to disregard the risk and have sexual intercourse with her.
In the present case, the facts and circumstances which militated in favour of suspending the terms of imprisonment imposed by the sentencing judge are these:
(a)the pleas of guilty;
(b)the appellant's 'degree of cooperation' with the investigating police;
(c)the appellant's prior good character, including the absence of a prior criminal record;
(d)the sentencing judge's finding that the appellant was not at significant risk of reoffending; and
(e)the appellant's status as a police officer would make imprisonment more onerous for him than would ordinarily be the case.
The facts and circumstances which militated against suspending the terms of imprisonment are as follows:
(a)the offending was persistent in that there were two occasions, separated by a significant period in time, on which sexual penetration occurred;
(b)the very significant age difference between the appellant and C (he was 43 and she was 15);
(c)the sentencing judge was not satisfied that the appellant honestly believed that C was of legal age (ts 101);
(d)his Honour found that the appellant had at least a very strong suspicion about C's age which he chose to ignore (ts 101);
(e)his Honour found that the appellant's state of mind about C's age was, at best, wilful blindness to the real risk that she was under the age of 16 (ts 99);
(f)the appellant, and not C, took the initiative in the acts of sexual intercourse which occurred;
(g)the appellant's sole interest in C was to have sex with her secretly and then send her on her way;
(h)the appellant did not have any affection for C;
(i)the pleas of guilty were very late: they were made on the morning that the appellant's trial was to begin; and
(j)the appellant had no more than a relatively modest amount of contrition and remorse for the offending.
In my opinion, it was open to the sentencing judge to decide that the facts and circumstances militating against suspending the terms of imprisonment outweighed the facts and circumstances militating in favour of suspension. I attach particular importance to the repetition of the offending; the 28‑year disparity in age between the appellant and C; the appellant's knowledge that it was unlawful for him to sexually penetrate a child under the age of 16; the appellant's very strong suspicion about C's age and his decision to ignore the real risk that she was under the age of 16; that the appellant, and not C, took the initiative in the acts of sexual intercourse which occurred; and the appellant's sole interest in C was to have sex with her secretly and send her on her way.
After taking into account:
(a)the maximum penalty for the offences;
(b)the serious nature of the offending;
(c)the objective facts and circumstances of the offending;
(d)C's vulnerability as a child;
(e)the standards of sentencing customarily observed;
(f)all mitigating factors; and
(g)all other relevant sentencing factors,
I am satisfied that the individual sentences of 2 years' immediate imprisonment were within the range open to his Honour on a proper exercise of his discretion.
I consider that it was open to his Honour to conclude that a term of imprisonment to be served immediately was the only appropriate sentencing option in the case of each offence. I also consider that the length of each individual term was not unreasonable or plainly unjust.
The first particular of the ground of appeal has not been made out.

The merits of the second particular of the ground of appeal

As I have indicated in the course of considering the first particular of the ground of appeal:
(a)the sentencing judge, in stating that there was 'some element of abuse', on the appellant's part, 'as described in [Riggall]' (ts 101), was merely referring to the large gap in age between the appellant and C;
(b)his Honour's characterisation of the large gap in age between them as involving 'some element of abuse' was, in the context of the facts and circumstances of the offending as a whole, correct; and
(c)the age difference could also properly be described, in the context of the facts and circumstances of the offending as a whole, as an aggravating factor.
I am satisfied, on a fair reading of the sentencing remarks as a whole, that his Honour did not find or proceed on the basis that there was or were some other element or elements of 'abuse', as explained in Riggall, apart from the large gap in age between the appellant and C.
The second particular of the ground of appeal has not been made out.
In any event, generally for the reasons I have given in considering the first particular of the ground of appeal, different sentences should not have been imposed. See s 31(4)(a) of the Criminal Appeals Act 2004 (WA).

The merits of the third particular of the ground of appeal

The sentencing judge observed, when deciding that the terms of imprisonment should not be suspended or conditionally suspended, that there is 'a particular need with this kind of offending to demonstrate the

community's condemnation and deter others from a similar wilful blindness in the face of the obvious' and that laws of the kind embodied in s 321(2) are made 'to protect children, even children who don't recognise their own need for protection' (ts 103).

In my opinion, his Honour's observations were consistent with established sentencing principles and the facts and circumstances of the present case. General deterrence is an important sentencing factor, especially in the case of potential offenders who are substantially older than the child and are wilfully blind (in the sense I have explained in relation to the appellant) to the child's true age. Also, as I have noted, the public policy and purpose underlying s 321(2) is not only to protect children from abuse by sexual predators, but also to protect children from themselves in the sense explained by Wheeler JA in Deering [17]. That public policy and purpose is not confined to children under the age of 16 who, in fact, have little or no sexual experience.
The third particular of the ground of appeal has not been made out.
In any event, generally for the reasons I have given in considering the first particular of the ground of appeal, different sentences should not have been imposed. See s 31(4)(a) of the Criminal Appeals Act.

Conclusion

I would dismiss the appeal.
MAZZA JA: I agree with Buss P.
MITCHELL JA: I agree with Buss P.