The State of Western Australia v Jacoby

[2020] WASCA 150

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT  :   THE COURT OF APPEAL (WA)

CITATION:   THE STATE OF WESTERN AUSTRALIA -v- JACOBY [2020] WASCA 150

CORAM:   BUSS P

MITCHELL JA

BEECH JA

HEARD:   23 JULY 2020

DELIVERED          :   9 SEPTEMBER 2020

FILE NO/S:   CACR 17 of 2020

BETWEEN:   THE STATE OF WESTERN AUSTRALIA

Appellant

AND

DARBY MICHAEL JACOBY

Respondent

ON APPEAL FROM:

Jurisdiction              :   DISTRICT COURT OF WESTERN AUSTRALIA

Coram:   LONSDALE DCJ

File Number            :   BRO 54 of 2019

Catchwords:

Criminal law - State appeal against sentence - Respondent convicted on his plea of guilty of sexually penetrating the victim without her consent, by penetrating her vagina with his penis, contrary to s 325 of the Criminal Code (WA) - Maximum penalty of 14 years' imprisonment - Respondent sentenced by the primary judge to 2 years' immediate imprisonment - Manifest inadequacy

Legislation:

Criminal Appeals Act 2004 (WA), s 31(4)
Criminal Code (WA), s 325

Result:

Leave to appeal granted
Appeal allowed
Primary judge's sentencing decision set aside
Respondent resentenced

Category:    D

Representation:

Counsel:

Appellant	:	Ms A L Forrester SC & Ms M M Yeung
Respondent	:	Mr S Vandongen SC

Solicitors:

Appellant	:	Director of Public Prosecutions (WA)
Respondent	:	Max Crispe Barristers & Solicitors

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

Barbaro v The Queen [2014] HCA 2; (2014) 253 CLR 58

CMB v Attorney‑General (NSW) [2015] HCA 9; (2015) 256 CLR 346

Costa v The State of Western Australia [2019] WASCA 3

FST v The State of Western Australia [2011] WASCA 220

Hopper v The Queen [2003] WASCA 153

Kabambi v The State of Western Australia [2019] WASCA 44

Lakay v The State of Western Australia [2019] WASCA 46

Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665

McAlpine v The State of Western Australia [2018] WASCA 195

McNally v The State of Western Australia [2019] WASCA 93

Mearns v The State of Western Australia [2009] WASCA 153

Munda v The State of Western Australia [2013] HCA 38; (2013) 249 CLR 600

Munmurrie v The State of Western Australia [2013] WASCA 167

NPA v The State of Western Australia [2018] WASCA 131

Plumley v The State of Western Australia [2018] WASCA 33

R v Cleak [2004] WASCA 72

Singh v The State of Western Australia [2017] WASCA 47

SJN v The State of Western Australia [2016] WASCA 215

The State of Western Australia v Doyle [2017] WASCA 207

The State of Western Australia v Vartolo [2015] WASCA 53

The State of Western Australia v Yamalulu [2019] WASCA 6

JUDGMENT OF THE COURT:

1. This is a State appeal against sentence.

2. The respondent was charged on indictment with one count which alleged that on 8 May 2019 the respondent sexually penetrated the victim without her consent, by penetrating her vagina with his penis, contrary to s 325 of the Criminal Code (WA) (the Code).

3. On 20 January 2020, the respondent was convicted, on his plea of guilty, of the offence.

4. The maximum penalty for the offence is 14 years' imprisonment.

5. On 20 January 2020, Lonsdale DCJ sentenced the respondent to 2 years' immediate imprisonment.  The sentence began on 20 January 2020.  A parole eligibility order was made.

6. The State's sole ground of appeal alleges that the sentence was manifestly inadequate.  On 21 February 2020, Buss P referred the application for leave to appeal to the hearing of the appeal.

7. We would grant leave to appeal, allow the appeal, set aside the sentencing judge's sentencing decision and resentence the respondent.  Our reasons are as follows.

The facts and circumstances of the offending

1. The facts and circumstances of the offending, as alleged by the State, were not in dispute either before the sentencing judge or this court.

2. The victim was aged 26.  She was a citizen of a European country.  The victim was of medium height and petite build.

3. The respondent was aged 20.  He was of medium height and build.

4. On the evening of 7 May 2019, the respondent and the victim were at a hotel in rural Western Australia.  They did not know each other.  However, they became acquainted at the hotel on the evening in question.  They spoke to one another.  The respondent invited the victim to leave the hotel and have sex with him.  The victim declined.

5. By the end of the evening, as the hotel was closing, the victim was waiting outside the hotel for friends.  When she realised that they had already departed, the victim began to walk alone to the hostel where she was staying.  After he left the hotel, the respondent got into his vehicle.  When he was driving he noticed the victim and stopped.  The respondent asked the victim if she wanted to 'go and chill'.  The victim understood this statement as another invitation by the respondent to have sex.  She declined.  The victim said she wanted to go home.

6. The respondent offered the victim a lift to the hostel.  She accepted and got into his vehicle.  At her request, the respondent drove to another hotel so that she could collect her bicycle.  Afterwards, the respondent drove to a McDonald's restaurant.  However, he left without purchasing anything.

7. The respondent then drove to a beach.  The victim repeatedly asked the respondent where they were going.  She repeatedly told him that she wanted to go home.  The respondent parked his vehicle and listened to music for a short time.  He then attempted to kiss the victim.  The victim rejected his advances.  She got out and stood by the front of the vehicle.

8. The respondent followed the victim and attempted to kiss her again.  When the victim said 'no' again, the respondent forced the victim onto the sand and straddled her as she lay on her back.  The respondent began attempting to remove her belt, shorts and underwear.  The victim was shouting 'help' and holding a mobile telephone.  The respondent forcefully removed the telephone from her hand and threw it onto the sand.

9. The respondent managed to remove the victim's clothing from the lower half of her body.  He held one of her wrists with one hand.  He put his other hand around her throat to endeavour to quieten her screams for help.  The respondent forced the victim's legs apart and penetrated her vagina with his penis for a few minutes.  He did not use a condom. 

10. Eventually, the respondent stopped penetrating the victim's vagina with his penis.  He stood up and walked back to his vehicle.  The victim found her mobile telephone in the sand.  She attempted to take photographs of the vehicle's registration plate.  When the respondent saw what the victim had done, he returned to the victim and forced her to delete the images.

11. The respondent removed the victim's bicycle and bag from his vehicle.  He then departed in the vehicle.  The victim was abandoned at about 2.30 am in a dark and remote part of the beach.  The victim used her mobile telephone to call for assistance.  She made a complaint to the police later that morning.

12. On the same day, the respondent became aware that police were looking for him.  The respondent telephoned police and made arrangements to attend the police station.  He was interviewed by police and made some admissions to the effect that he had contact with the victim the previous night, they went to the beach and he attempted to kiss her.  The respondent said he could not recall what happened next.  He did not deny having offended as alleged by the victim.

The sentencing judge's sentencing remarks and the respondent's personal circumstances

1. The sentencing judge recounted the facts and circumstances of the offending.

2. Her Honour found that the respondent had pleaded guilty at the earliest reasonable opportunity. Her Honour allowed the respondent a discount of 25%, pursuant to section 9AA of the Sentencing Act 1995 (WA), on account of his plea.

3. The sentencing judge said that the respondent was remorseful and accepted responsibility for his offending.  He had indicated 'a degree of empathy for the victim' (ts 17).

4. Her Honour noted that since the occurrence of the offence the respondent had engaged in counselling to address his substance misuse and mental health issues.

5. The sentencing judge gave the respondent 'some credit' for cooperating with the police including by making 'significant admissions' (ts 17).

6. Her Honour characterised the offending as 'very serious'.  The respondent took advantage of a defenceless young woman.  He took her to an isolated location.  She was a citizen of a European country and was not familiar with the area.  The victim repeatedly made it clear to the respondent that she was not interested in him 'at any level'.  She certainly made it clear to the respondent that she did not wish to have sex with him.  The respondent repeatedly ignored her protestations including her screams for assistance.  The respondent did not use a condom when he had intercourse with the victim.  He used a 'significant amount of force' to subdue the victim so that he could have sex with her.  He put his hand around her neck.  The respondent attempted to prevent the victim from obtaining help by abandoning her in a dark and remote place and throwing away her mobile telephone (ts 17 ‑ 18).

7. The information before the sentencing judge included a victim impact statement.  It was apparent from the statement that the events on the night in question have had a profound and long-lasting effect on her.  She feels ashamed and blames herself for what occurred.  Although, of course, the victim has nothing to be ashamed of and bears no blame for the respondent's outrageous behaviour, those feelings are not uncommon among victims of sexual violence.  The victim has lost trust in other people.  She has become emotional, depressed and exhausted.  The victim has sought assistance from a psychologist.  She finds the prospect of dating a man difficult.  In short, the offending conduct has had a severe impact on the victim.

8. Her Honour noted the respondent's claim to have no recollection of the offending.  Her Honour was unable to determine whether the respondent's professed absence of recollection was genuine.

9. The sentencing judge said that she was willing to accept that the respondent's conduct on the night in question was out of character.

10. The respondent was aged 20 years at the time of the offending and was nearly 21 years when sentenced.  He was raised in Port Hedland until his parents separated when he was aged 10 or 11 years.  He then relocated to Perth with his mother who had commenced a new relationship.  The respondent did not have ideal role models in his early years.  He returned to Port Hedland to live with his father after an altercation with his step-father.  The respondent remained in Port Hedland until he relocated to Broome shortly before he committed the offence against the victim.

11. The respondent was educated to year 10 at school.  He had some difficulties with his school work.  Since leaving school the respondent has had a reasonable work history.

12. The respondent has no prior convictions.  A number of written references were provided to her Honour.  The authors of the references spoke well of the respondent.  He has good support among his family and friends.

13. The information before the sentencing judge also included a presentence report dated 6 January 2020 and a psychological report dated 2 January 2020 from Bart Wszola, a counselling psychologist.  In April 2019, the respondent was diagnosed as suffering from generalised anxiety disorder and moderate depression.  In January 2019, he had attempted suicide. Mr Wszola assessed that the respondent was at an average or medium risk of reoffending if he did not abstain from substance misuse and he did not address his anxiety and depression through counselling.

14. Her Honour said that Mr Wszola's report suggested that, given the respondent had not previously been convicted of any sexual offence, it was unlikely that his current offending was underpinned by an entrenched sexually deviant interest in sexual violence.

15. The sentencing judge said that it was apparent from the presentence report, the psychological report and the written references she had received that the respondent is emotionally vulnerable.  There was reason to be concerned that the respondent was at an elevated risk of reoffending unless he receives appropriate treatment.  The respondent had, until recently, used illicit drugs including cannabis, MDMA and methylamphetamine since the age of 15 years.  His offending on the night in question appears to have been precipitated to some extent by his consumption of alcohol and his use of MDMA.

16. The respondent had used substances to self‑medicate his social anxiety and depressive symptoms.  His low self‑esteem and interpersonal difficulties have contributed to his difficulties in developing healthy intimate relationships. 

17. Since the offending occurred the respondent has taken steps to address his mental health problems and associated substance abuse.  He has completed a 13-week out-patient drug and alcohol program and has attended group counselling sessions.

18. Her Honour concluded that, given the absence of a prior criminal record, the respondent's remorse and, to some extent, his insight into his offending, 'personal deterrence [was not] particularly relevant' (ts 21).

Counsel for the State's submissions

1. Counsel for the State submitted that, having regard to the seriousness of the respondent's offending, the need for personal and general deterrence and the sentencing pattern revealed by previous cases concerning offences of this type, and taking into account all of the mitigating factors, the sentence of 2 years' immediate imprisonment was not within the range of a sound discretionary judgment and was so inadequate as to manifest error.

Counsel for the respondent's submissions

1. Counsel for the respondent emphasised that:

   (a)the respondent was convicted of one offence;

   (b)the respondent pleaded guilty at the first reasonable opportunity; and

   (c)the respondent was not charged with the more serious offence of aggravated sexual penetration without consent, which attracts a maximum penalty of 20 years' imprisonment.

2. Counsel argued, in relation to where the respondent's offending is located on the spectrum of seriousness of offences against s 325 of the Code, that:

   (a)in the present case, there was no evidence and no finding that the respondent had ejaculated;

   (b)the offending occupied only a few minutes;

   (c)the use of force is not an uncommon feature of offences of this kind; and

   (d)the respondent's offending did not involve a breach of trust (appeal ts 9 ‑ 10).

3. Counsel referred to the sentencing judge's comment that she did not think that personal deterrence was 'particularly relevant' (ts 21).

4. It was submitted that the respondent's personal circumstances and the mitigating factors, in light of the circumstances of the offending, justified what counsel described as 'the relative leniency of the sentence imposed [by her Honour]'.

5. Although counsel accepted that the sentence of 2 years' immediate imprisonment was lenient, he submitted that the sentence was not, having regard to all relevant facts and circumstances and all relevant sentencing factors, unreasonable or plainly unjust.

The merits of the ground of appeal

1. As we have mentioned, the sole ground of appeal alleges that the sentence of 2 years' immediate imprisonment was manifestly inadequate.  The State does not allege that the sentencing judge made any express error.

2. The general principles governing a ground of manifest inadequacy are well established and were summarised recently by this court.[1]  A ground of appeal which asserts that a sentence is manifestly inadequate asserts the existence of an implied error.  It is necessary, in determining whether a sentence is manifestly 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 offender's personal circumstances. 

   [1] The State of Western Australia v Yamalulu [2019] WASCA 6.

3. 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 offending is merely one of the factors to be taken into account in deciding whether a sentence is manifestly inadequate.  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.

4. 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. 

5. If, in a particular case where manifest inadequacy is alleged, there are no directly comparable cases, this court is not precluded from deciding that an individual sentence is manifestly inadequate.  It merely has the consequence that this court has no directly comparable cases to provide a yardstick against which to assess the sentence.  Previous sentencing ranges are only one pointer to the inadequacy of a sentence.[2] 

   [2] Munda v The State of Western Australia [2013] HCA 38; (2013) 249 CLR 600; The State of Western Australia v Doyle [2017] WASCA 207; McAlpine v The State of Western Australia [2018] WASCA 195.

6. Except where a mandatory sentence is prescribed, a sentencing judge exercises a discretionary judgment which is subject to applicable statutory provisions and judge-made law.[3] 

   [3] Barbaro v The Queen [2014] HCA 2; (2014) 253 CLR 58.

7. The discretion conferred on sentencing judges is, of course, of fundamental importance and as the respondent correctly identified, 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.[4]

   [4] Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665.

8. As we have mentioned, the maximum penalty for the offence committed by the respondent is 14 years' imprisonment.

9. As this court noted in McNally v The State of Western Australia,[5] the general sentencing standards for offences contrary to s 325 of the Code are well established. There is, however, no tariff for those offences 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 upon its individual facts and circumstances, having regard to the maximum penalty and all relevant sentencing factors. In NPA v The State of Western Australia,[6] it was observed:

   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)

   See also Kabambi v The State of Western Australia[7] and Lakay v The State of Western Australia.[8]

   [5] McNally v The State of Western Australia [2019] WASCA 93 [53] (Buss P & Beech JA).

   [6] NPA v The State of Western Australia [2018] WASCA 131 [51] (Buss P, Mitchell & Beech JJA).

   [7] Kabambi v The State of Western Australia [2019] WASCA 44 [23] (Buss P, Mitchell & Pritchard JJA).

   [8] Lakay v The State of Western Australia [2019] WASCA 46 [38] (Buss P, Mitchell & Pritchard JJA).

1. We have considered a number of previous appeals against sentence, decided by this court or its predecessor, which involved the offence of sexual penetration without consent, contrary to s 325 of the Code. Those cases include Hopper v The Queen;[9] R v Cleak;[10] Mearns v The State of Western Australia;[11] FST v The State of Western Australia;[12] Munmurrie v The State of Western Australia;[13] The State of Western Australia v Vartolo;[14] SJN v The State of Western Australia;[15] Singh v The State of Western Australia;[16] Costa v The State of Western Australia;[17] Kabambi; Lakay; and McNally.  We have also considered Plumley v The State of Western Australia,[18] which involved an attempt to commit the offence of sexual penetration without consent.  It is unnecessary to repeat the relevant facts and circumstances of the cases we have considered or the sentences that were imposed.  There are some comparable features between some of those cases and the present case but there are also distinguishing features.

   [9] Hopper v The Queen [2003] WASCA 153.

   [10] R v Cleak [2004] WASCA 72.

   [11] Mearns v The State of Western Australia [2009] WASCA 153.

   [12] FST v The State of Western Australia [2011] WASCA 220.

   [13] Munmurrie v The State of Western Australia [2013] WASCA 167.

   [14] The State of Western Australia v Vartolo [2015] WASCA 53.

   [15] SJN v The State of Western Australia [2016] WASCA 215.

   [16] Singh v The State of Western Australia [2017] WASCA 47.

   [17] Costa v The State of Western Australia [2019] WASCA 3.

   [18] Plumley v The State of Western Australia [2018] WASCA 33.

2. The facts and circumstances of the respondent's offending, in the present case, were very serious.  On numerous occasions the victim expressly and unequivocally refused to consent to having sex with the respondent.  The respondent ignored the victim's unequivocal expressions of her absence of consent.  The victim got into the respondent's vehicle because the respondent had offered to drive her to her home.  However, he drove to a remote location despite the victim repeatedly telling him that she wanted to go home.  The respondent was physically stronger than the victim.  He used significant physical force to subdue her for the purpose of enabling him to have sex without her consent.  That included holding one of her wrists with one hand and placing his other hand around her throat.  The respondent did not use a condom when he had intercourse, a fact which gave rise to the risk for the victim of pregnancy and sexually transmitted disease.  No doubt, that risk created worry and concern for the victim for a substantial period.  The respondent forced the victim to delete images the victim had taken on her mobile telephone which would have assisted in identifying him.  The respondent abandoned the victim at about 2.30 am in a dark and isolated location.  The victim was highly vulnerable to offending of the kind committed by the respondent.  The psychological and emotional trauma she has suffered has been profound and ongoing.

3. There were, as the State acknowledged, substantial mitigating factors (appeal ts 4, 6). The respondent pleaded guilty at the earliest reasonable opportunity, for which her Honour allowed a discount of 25% under s 9AA of the Sentencing Act.  He was youthful for sentencing purposes, having attained the age of 20 years about two months before the offending.  The sentencing judge found that the respondent was remorseful and accepted responsibility for his offending.  He had evinced some empathy for the victim.  Since the occurrence of the offence, the respondent had engaged in counselling to address his substance misuse and mental health issues.  He had cooperated with the police and had made what her Honour characterised as 'significant admissions' (ts 17).  The respondent does not have a prior criminal record.  Her Honour accepted that the respondent's conduct on the night in question was out of character.  He has a history of generalised anxiety disorder and moderate depression.  Mr Wszola was of the view that the respondent was at an average to medium risk of reoffending if he did not abstain from substance misuse and he did not address his anxiety and depression through counselling.

4. Personal deterrence remained a relevant sentencing factor despite the positive steps towards rehabilitation that the respondent had embarked upon since the offending.

5. In our opinion, the sentence of 2 years' immediate imprisonment was not commensurate with the seriousness of the offence.  We are satisfied, having regard to all relevant facts and circumstances and all relevant sentencing factors (including the mitigating factors we have mentioned), that the length of the sentence was unreasonable or plainly unjust.

6. We consider that, when the sentence imposed by the sentencing judge is viewed from the perspective of:

   (a)the maximum penalty;

   (b)the facts and circumstances of the offence;

   (c)the vulnerability of the victim;

   (d)the general pattern of sentencing for offences of this kind;

   (e)the relevance of personal deterrence;

   (f)the importance of general deterrence; and

   (g)all mitigating factors,

   the sentence was not merely 'lenient' or 'at the lower end of the available range'.

7. The sentence of 2 years' immediate imprisonment was substantially less than the sentence that was open to her Honour on a proper exercise of her discretion.  The sentence was manifestly inadequate.

8. The sole ground of appeal has been made out.

The outcome of the appeal and the resentencing of the respondent

1. Counsel for the respondent did not submit that the residual discretion under s 31(4) of the Criminal Appeals Act 2004 (WA) should be exercised. The respondent does not, of course, bear an onus to establish that the residual discretion should be exercised in his favour. Rather, it is incumbent on the State to negate any reason why the residual discretion of this court not to interfere should be exercised. See CMB v Attorney‑General (NSW).[19]

   [19] CMB v Attorney‑General (NSW) [2015] HCA 9; (2015) 256 CLR 346 [33] - [34] (French CJ & Gageler J), [66] (Kiefel, Bell & Keane JJ).

2. In our opinion, there is no basis, in the present case, for invoking the residual discretion.  As we have indicated, the sentence imposed by the sentencing judge was substantially less than the sentence open on a proper exercise of the sentencing discretion.  Appealable error has been very clearly established.  This court's intervention is necessary to ensure that proper sentencing standards are adopted and maintained for the relevant offence.

3. We would allow the appeal.

4. Her Honour's sentencing decision, including the sentence imposed and the orders her Honour made, should be set aside.

5. This court has the material necessary to resentence the respondent.

6. In the present case, if there had been no mitigating factors, we would have imposed a sentence in excess of the range of 5 to 6 years' imprisonment referred to in NPA [51]. However, as we have mentioned and as the State acknowledged, there were, in the present case, substantial mitigating factors.

7. Like the sentencing judge, we would allow a discount of 25%, pursuant to s 9AA of Sentencing Act, on the head sentence we would otherwise have imposed for the offence, on account of the plea of guilty. We have also reduced the sentence we would otherwise have imposed for the offence to reflect the other mitigating factors mentioned at [55] above.

8. We would exercise the sentencing discretion afresh by imposing a sentence of 4 years' immediate imprisonment.  The new sentence should be taken to have taken effect on 20 January 2020.  Like her Honour, we would make a parole eligibility order.  The respondent will be eligible to be considered for release on parole when he has served 2 years in custody calculated from 20 January 2020.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.

JM
Research Associate to the Honourable Justice Buss

9 SEPTEMBER 2020