The State of Western Australia v Fyffe
[2018] WASCA 173
•10 OCTOBER 2018
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: THE STATE OF WESTERN AUSTRALIA -v- FYFFE [2018] WASCA 173
CORAM: BUSS P
MAZZA JA
MITCHELL JA
HEARD: 19 SEPTEMBER 2018
DELIVERED : 10 OCTOBER 2018
FILE NO/S: CACR 158 of 2018
BETWEEN: THE STATE OF WESTERN AUSTRALIA
Appellant
AND
BEAU ANDREW JAMES FYFFE
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram: BRADDOCK DCJ
File Number : IND 1342 of 2017
Catchwords:
Criminal law - State appeal against sentence - Sexual penetration of a child of or over the age of 13 years and under the age of 16 years - Lack of factual consent on part of complainant - Whether sentence of 15 months' immediate imprisonment is manifestly inadequate - Turns on own facts
Legislation:
Nil
Result:
Appeal allowed
Category: D
Representation:
Counsel:
| Appellant | : | Mr J A Scholz |
| Respondent | : | Ms G Cleary & Ms K A Shepherd |
Solicitors:
| Appellant | : | The Director of Public Prosecutions (WA) |
| Respondent | : | Karen Shepherd |
Case(s) referred to in decision(s):
Buckley v The State of Western Australia [2015] WASCA 242
C v The State of Western Australia [2006] WASCA 261
Director of Public Prosecutions (Vic) v Dalgliesh (a pseudonym) (2017) HCA 41; (2017) 91 ALJR 1063
Eravelly v The State of Western Australia [2018] WASCA 139
Floresta v The State of Western Australia [2015] WASCA 93
Gavenlock v The State of Western Australia [2014] WASCA 36
Miles v The State of Western Australia [2007] WASCA 258
Munda v The State of Western Australia [2013] HCA 38; (2013) 249 CLR 600
Nayna v The State of Western Australia [2016] WASCA 169
NPA v The State of Western Australia [2018] WASCA 131
Simon v The State of Western Australia [2009] WASCA 10
Warburton v The State of Western Australia [2009] WASCA 113; (2009) 196 A Crim R 361
JUDGMENT OF THE COURT:
On 20 July 2018, the respondent was convicted, on his plea of guilty, of one count of sexually penetrating a child of or over the age of 13 years and under the age of 16 years. That is an offence against s 321(2) of the Criminal Code (WA). The respondent was sentenced to 15 months' immediate imprisonment, with eligibility for parole.
The State now appeals against that sentence on the sole ground that it is manifestly inadequate. Leave to appeal has been granted. For the following reasons, the appeal must be allowed. The respondent should be resentenced to a term of 3 years 6 months' immediate imprisonment, with eligibility for parole.
Circumstances of offending
At the time of the offence the complainant was about 13 years 2 months' old. On 10 June 2017, the complainant's parents were to spend the night away from the family home. They arranged for the complainant to stay overnight at the family home with a female friend, who was about the complainant's age. The complainant's brother stayed overnight at the house of one of his friends, so that the two girls were alone in the complainant's family home overnight.
While the complainant had been instructed not to invite anyone else to the house, the temptation to have a party was too great. The complainant and her friend arranged for others to attend the house for that purpose. The complainant contacted the respondent, who was then 22 years old and lived nearby, asking him to get alcohol for the party. Although they had previously met, the complainant principally knew the respondent through Facebook Messenger. The respondent agreed to buy alcohol for the complainant.
The respondent came to the complainant's street and they walked to a nearby bottle shop where the respondent purchased alcohol. The respondent returned with the complainant to her family home, and stayed at the house.
The complainant's female friend went to a bus stop to meet some of the people who would be attending the party, leaving the complainant alone in the house with the respondent. In the complainant's bedroom, the respondent undid his fly and put on a condom from a packet that was lying on the complainant's bed. The respondent pulled the complainant's shorts and underwear to the side and penetrated the complainant's vagina with his penis. Before doing so, the respondent said to the complainant 'you know you want this'. The complainant replied 'no, I don't'. The respondent said 'yes, you do'. After 'a couple of minutes',[1] the respondent ejaculated in the condom, removed his penis from the complainant's vagina and threw the condom away in an outside bin.
[1] Sentencing ts 125.
At a trial of the issues, the complainant and respondent gave differing accounts of how the sexual activity commenced. The sentencing judge found it difficult to accept either account on its terms. However, the sentencing judge was satisfied that there was a 'short sexual encounter involving sexual penetration' by the respondent of the complainant's vagina, occurring on the bed in the complainant's bedroom.[2] Her Honour accepted that the complainant told the respondent she wanted him to stop and he continued with the conduct.[3] She accepted that the complainant could not handle the situation and it is likely that the complainant froze.[4] The sentencing judge was not able to find that any element of non-sexual violence was involved.[5] The sentencing judge was satisfied that the complainant did not in fact consent to the sexual penetration.[6]
[2] Sentencing ts 127.
[3] Sentencing ts 127 - 128, 147.
[4] Sentencing ts 127.
[5] Sentencing ts 128, 147.
[6] Sentencing ts 128.
The respondent remained at the complainant's house for some time after her friend and others came to the house for the party. The complainant told her friends what had occurred, and the respondent was asked to leave. The complainant reported what had occurred to her mother the next day, and was interviewed by police shortly afterwards. Having watched the recorded interview, the sentencing judge observed that the complainant presented as a young girl who appeared to be apprehensive, naïve, hesitant and not very articulate.[7]
[7] Sentencing ts 125.
The sentencing judge found that the complainant had not had sex before, and that the incident has had a very significant effect upon her.[8] The complainant's victim impact statement described her symptoms of anxiety and depression, which manifested in self‑harm requiring admission to a clinic for psychiatric treatment. The complainant described her loss of trust, particularly toward males both known and unknown to her, having to deal with bullying and nasty comments at school, her difficulty in sleeping and her difficulty focussing in the classroom.
[8] Sentencing ts 147.
Personal circumstances
The respondent was 22 years old at the time of the offences. He had previous convictions in the Magistrate's Court, the most serious of which was for an aggravated burglary committed on 6 May 2017. On 23 February 2018, the respondent was placed on a 1 year community based order for that offence. The respondent had a significant number of convictions in the Children's Court for burglary and other property offences. Apart from one conviction of possessing an indecent or obscene article (animal pornography) in 2011, the respondent had not been convicted of any offences of a sexual nature. He had not previously received a custodial sentence.
At the time of sentencing the respondent was single, unemployed and residing with his parents. He denied any current issues with substance abuse, but acknowledged prior excessive alcohol use. There was no suggestion that the respondent was intoxicated when he offended against the complainant.
Sentencing judge's approach
Having found the facts following the trial of issues, at which the complainant and her mother were required to give evidence, the sentencing judge received further submissions from counsel.
In her sentencing remarks, her Honour referred to the respondent as an immature 22 year old with limited insight. Apart from his criminal activity, the respondent was 'a pretty unremarkable young lad'.[9]
[9] Sentencing ts 146.
The sentencing judge accepted that the respondent pleaded guilty to the offence at the earliest reasonable opportunity. However, the respondent did not accept that the complainant did not in fact consent to the activity, and the consequent trial of issues reduced the utility of the plea of guilty. The sentencing judge gave the respondent a 12.5% discount under s 9AA of the Sentencing Act 1995 (WA).[10]
[10] Sentencing ts 146 - 147.
The sentencing judge made the following comments:[11]
The other thing that is very much in your favour is that you are still young. In fact, I would call you a very foolish young man and I consider you to be immature. That means two things. One, there is the prospect of you learning from experience. There is the prospect of you rehabilitating, reforming yourself and maybe even the prospect of you telling other young people that they need to be very careful and if not see the girl’s birth certificate, be very sure that you’re dealing with a girl of or over 16.
The other thing bizarrely that I consider to be in your favour is that you did in fact use a condom. That is the only positive consideration it seems to me that you showed for [the complainant] on that night. Otherwise you appear to have had no real regard for her feelings, the fact she’s another human being and a young one who you as a man should have been protective of rather than exploitive.
There’s a considerable age disparity. [The complainant] hadn’t had sex before, was a very unromantic, unkind start to her sexual experience. I consider that you are sorry for the trouble that you’re in. I’m not sure you’ve yet learned how remorseful you should be and I consider that this has had a very significant effect on this particular girl.
I do believe, however, that you can take this on board and learn from it. I don’t believe there’s any particular risk that you’ll behave in the same way again. I suspect that you’ll be more than careful in the future and you did not set out to bring about this situation.
You did not set out to put her into the situation. You did not set out to what they say in the reports, groom her, that is to say either bribe her, persuade her or otherwise get her into the situation, but what you did was completely wrong.
So weighing all of that up, bearing in mind how young you are and yet how young she was, in my view this is a matter that does merit a term of imprisonment and does merit a term of imprisonment to be served.
[11] Sentencing ts 147 - 148.
The sentencing judge then imposed a sentence of 15 months' immediate imprisonment, with eligibility for parole. In doing so, her Honour said that she was satisfied that imprisonment was the only proper sentencing option. The sentencing judge also considered that this sentence reflected the need for punishment of the respondent and to deter other young men from behaving in the same way.[12]
[12] Sentencing ts 148.
General principles
The general principles governing appeals contending that a sentence is manifestly excessive or inadequate are well established:
(1)A ground of appeal which alleges that a sentence is manifestly excessive or inadequate asserts an implied error. It is necessary, in determining whether a sentence is manifestly excessive or inadequate, 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.
(2)The discretion conferred on sentencing judges is 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. The appellant must demonstrate that the sentence imposed is unreasonable or plainly unjust.
(3)The guidance afforded by comparable cases is flexible rather than rigid. The mere fact that 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 that a sentence is outside the range does not necessarily establish that the exercise of the sentencing discretion in the particular case miscarried.
(4)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. 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.
(5)When an appellate court dismisses an appeal against sentence, and when it allows an appeal against sentence and resentences the offender, the court's decision on the sentencing outcome does not, of itself, fix the upper or lower limit of the range.
Disposition
The maximum penalty for an offence against s 321(1) of the Criminal Code in the present circumstances is 14 years' imprisonment.[13]
[13] Section 321(7)(a) of the Criminal Code.
As Steytler P, with whom other members of the court agreed, noted in Simon v The State of Western Australia:[14]
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. However, proven absence of consent would seriously aggravate the offending and the culpability of the offender. 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. (citations omitted) (emphasis added)
[14] Simon v The State of Western Australia [2009] WASCA 10 [23].
In the present case, the fact that the sexual penetration occurred against the will of the complainant, who told the respondent she did not want to engage in that conduct, was a very serious aggravating feature of the offence. There were a number of other significant aggravating features of the offending:
(1)The assault occurred in the complainant's home and bedroom, where she was entitled to feel safe.
(2)The offence involved penile penetration. While the seriousness of an act of penetration is determined by all of the circumstances of the case, penile penetration is ordinarily (although not invariably) regarded as more serious than, for example, digital penetration.[15]
(3)There was a significant age difference of 9 years between the complainant and respondent.
(4)The complainant was very young, being at the lower end of the range of ages of children whom s 321 of the Criminal Code is designed to protect.
(5)The respondent exploited the vulnerability of an immature victim.
(6)The complainant's first sexual experience was of sexual penetration against her will.
(7)The devastating psychological impact of the assault on the complainant.
[15] C v The State of Western Australia [2006] WASCA 261 [34] -[35]; Nayna v The State of Western Australia [2016] WASCA 169 [54].
The respondent's counsel points to a number of aggravating features which are not present in this case: accompanying non-sexual violence or threats thereof; planning or grooming; unprotected penile penetration; extended or repeated offending. However, the absence of aggravating features of this kind does not mean that the current offending is to be characterised as other than very serious. This court has recognised that, even where there are no unusual or aggravating factors, sexual penetration without consent is a serious invasion of the victim's right to bodily integrity and autonomy. Ordinarily, such a violation demands a significant sentence of imprisonment even in the absence of unusual or aggravating factors.[16]
[16] Warburton v The State of Western Australia [2009] WASCA 113; (2009) 196 A Crim R 361 [11].
The State has referred to three previous decisions of this court on sentencing appeals.[17] Of those three cases, only Floresta involved sexual penetration without the factual consent of the victim.
[17] Floresta v The State of Western Australia [2015] WASCA 93; Buckley v The State of Western Australia [2015] WASCA 242 and Miles v The State of Western Australia [2007] WASCA 258.
In Floresta, the intoxicated 18 year old offender sexually penetrated the vagina of the 14 year old complainant with his penis on one occasion. The offender followed the victim into the offender's bedroom, locked the door and sexually penetrated the victim despite her struggling and demanding that he stop. The offender pleaded guilty and was given a 15% discount under s 9AA of the Sentencing Act after a trial of issues as to consent. The offender came from a disadvantaged background and had a juvenile record with no similar offences and no convictions as an adult. The offender's application for leave to appeal against a sentence of 2 years 6 months' immediate imprisonment was dismissed. In doing so the court recognised that the absence of consent on the part of the victim is a serious aggravating factor.[18]
[18] Floresta [20], [22].
Another case involving absence of consent is Gavenlock v The State of Western Australia.[19] That case involved sexual offending by the offender against the victim on three separate occasions. One of the offences involved penile-vaginal penetration by the offender, who was 21 or 22 years old, against the victim who was either 13 or 14 years old. The victim had told the offender she did not want to engage in sexual conduct and that he was hurting her. Despite this, the offender continued for a short time before withdrawing his penis and requesting the victim to masturbate him. She refused to do so. There was no evidence as to the impact of the offending on the victim. The offender, who was 26 years old at the time of sentence, had no relevant prior convictions, was otherwise of good character and of low risk of reoffending. After trial, he was sentenced to 3 years' immediate imprisonment for the penile-vaginal penetration offence. On appeal, a total effective sentence of 4 years 6 months' imprisonment was reduced to 3 years' immediate imprisonment on totality grounds, by making all sentences concurrent.
[19] Gavenlock v The State of Western Australia [2014] WASCA 36.
Nayna concerned sexual offending by an 18 year old offender against his girlfriend's 13 year old younger sister. The sexual activity was generally consensual, but there was a finding of digital penetration of the victim's vagina without the victim's consent (albeit in the course of other consensual sexual activity). The sexual penetration was described as spontaneous and momentary. The offending had a significant psychological impact on the victim. The offender had very good antecedents. The offender was convicted after trial. On appeal, this court sentenced the offender to 10 months' suspended imprisonment for the sexual penetration offence. He was concurrently sentenced to 4 months' suspended imprisonment on an indecent dealing offence.
It is also relevant to note the customary sentencing standards for penetration of an adult victim without consent, contrary to s 325(1) of the Criminal Code. The maximum penalty for that offence is also 14 years' imprisonment. As the court recently noted, in relation to sentences in serious cases of sexual penetration of adult victims, in NPA v The State of Western Australia:[20]
In a case of a single count of penile penetration of the vagina where there is a plea of not guilty, a term of imprisonment of 5 to 6 years would not be unusual. It is important to emphasise that this does not mean that a sentence outside that range is thereby manifestly excessive (or inadequate). The circumstances of offending vary widely. The available maximum sentence must not be overlooked. Sentences well beyond that range may be justified by the circumstances of the case. (citations omitted)
[20] NPA v The State of Western Australia [2018] WASCA 131 [51], cited in Eravelly v The State of Western Australia [2018] WASCA 139 [95].
There were some mitigating features in the respondent's favour. His age and immaturity was a mitigating factor, and the sentencing judge recognised his prospects for rehabilitation. However, those prospects must be qualified by the sentencing judge's finding as to the respondent's lack of insight into his offending behaviour. That lack of insight is reflected in the following exchange with the prosecutor cross-examining the respondent during the trial of issues:[21]
You had sex with her, didn’t you? --- Yes. That’s what she had led onto and you – you can’t blame someone if someone’s leading onto it. It’s – if you were another – if you were – if you were a man yourself you would understand.
It does not appear that the respondent's experience with the criminal justice system has brought home to him the importance of ensuring that a girl with whom he intends to engage in sex is consenting and at least 16 years of age. While the respondent was sorry for the trouble he was in, the sentencing judge did not find that he was remorseful.
[21] Sentencing ts 99.
The respondent did plead guilty at the first reasonable opportunity. However, the utilitarian value of that plea was significantly reduced by his decision to contest the issue of consent, which required the complainant and her mother to give evidence and be subjected to cross-examination. While the respondent did not have a history of sexual offending, his criminal record meant that he did not enjoy the mitigating effect of prior good character.
It was not open to the sentencing judge, having regard to all of the above matters, to conclude that a sentence of only 15 months' immediate imprisonment was commensurate with the seriousness of the offence. That sentence fails to recognise the seriousness of a penile-vaginal sexual penetration of a girl who recently turned 13 years of age against her will. The respondent persisted in the face of the complainant telling him she did not want to engage in such conduct. The psychological impact on the complainant was predictably shattering. The sentence imposed fell well short of sentences customarily imposed for offending of this kind, even against adult victims. While there were mitigating factors, they were qualified in the manner described above. The sentence imposed by the sentencing judge is properly characterised as unreasonable or plainly unjust.
Counsel for the respondent properly accepted that there was no basis for this court to exercise its residual discretion[22] to dismiss a prosecution appeal even when a ground of appeal is established and the court considers a different sentence should be imposed.[23]
[22] See Munda v The State of Western Australia [2013] HCA 38; (2013) 249 CLR 600; Director of Public Prosecutions (Vic) v Dalgliesh (a pseudonym) (2017) HCA 41; (2017) 91 ALJR 1063 [71].
[23] Appeal ts 18.
In my view, a sentence of 3 years 6 months' immediate imprisonment is commensurate with the seriousness of the respondent's offence. In reaching that conclusion, I allow for a discount of 12.5% under s 9AA of the Sentencing Act. The sentence should be backdated to 20 July 2018, and the respondent should remain eligible for parole.
Orders
For the above reasons, the following orders should be made in the appeal:
(1)The appeal is allowed.
(2)The sentence imposed by the District Court of Western Australia on Perth indictment 1342 of 2017 is set aside, and there is substituted a sentence of 3 years 6 months' immediate imprisonment.
(3)The sentence imposed by order 2 is taken to have begun on 20 July 2018.
(4)The respondent is eligible for parole.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
CR
ASSOCIATE TO THE HONOURABLE JUSTICE MITCHELL10 OCTOBER 2018
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