The State of Western Australia v Lee
[2008] WASCA 150
•21 JULY 2008
THE STATE OF WESTERN AUSTRALIA -v- LEE [2008] WASCA 150
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2008] WASCA 150 | |
| THE COURT OF APPEAL (WA) | |||
| Case No: | CACR:158/2007 | 17 JUNE 2008 | |
| Coram: | STEYTLER P McLURE JA MILLER JA | 21/07/08 | |
| 17 | Judgment Part: | 1 of 1 | |
| Result: | Appeal dismissed | ||
| D | |||
| PDF Version |
| Parties: | THE STATE OF WESTERN AUSTRALIA DAVID EDWARD LEE |
Catchwords: | Criminal law Appeal against sentence Whether sentences manifestly inadequate Criminal Code (WA), s 321A Turns on own facts |
Legislation: | Criminal Code (WA), s 321, s 321A Criminal Law and Evidence Amendment Act 2008 (WA), s 10 Sentencing Legislation Amendment and Repeal Act 2003 (WA), cl 2(1) sch 1 |
Case References: | CTM v The Queen [2008] HCA 25 Deering v The State of Western Australia [2007] WASCA 212 Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321 Marris v The Queen [2003] WASCA 171 Poulton v The State of Western Australia [2008] WASCA 97 R v Avery [2002] WASCA 136 Riggall v The State of Western Australia [2008] WASCA 69 The State of Western Australia v Collier [2007] WASCA 250 The State of Western Australia v Richards [2008] WASCA 134 VIM v The State of Western Australia [2005] WASCA 233; (2005) 31 WAR 1 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : THE STATE OF WESTERN AUSTRALIA -v- LEE [2008] WASCA 150 CORAM : STEYTLER P
- McLURE JA
MILLER JA
- Appellant
AND
DAVID EDWARD LEE
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram : STAVRIANOU DCJ
File No : ALB 25 of 2007
Catchwords:
Criminal law - Appeal against sentence - Whether sentences manifestly inadequate - Criminal Code (WA), s 321A - Turns on own facts
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Legislation:
Criminal Code (WA), s 321, s 321A
Criminal Law and Evidence Amendment Act 2008 (WA), s 10
Sentencing Legislation Amendment and Repeal Act 2003 (WA), cl 2(1) sch 1
Result:
Appeal dismissed
Category: D
Representation:
Counsel:
Appellant : Mr J Mactaggart
Respondent : Mr A R Paternoster
Solicitors:
Appellant : Director of Public Prosecutions (WA)
Respondent : Lane Buck & Higgins
Case(s) referred to in judgment(s):
CTM v The Queen [2008] HCA 25
Deering v The State of Western Australia [2007] WASCA 212
Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321
Marris v The Queen [2003] WASCA 171
Poulton v The State of Western Australia [2008] WASCA 97
R v Avery [2002] WASCA 136
Riggall v The State of Western Australia [2008] WASCA 69
The State of Western Australia v Collier [2007] WASCA 250
The State of Western Australia v Richards [2008] WASCA 134
VIM v The State of Western Australia [2005] WASCA 233; (2005) 31 WAR 1
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1 STEYTLER P: I have read the judgment of McLure JA. It seems to me, with respect, that the sentence of 18 months imposed in respect of the second of the two complainants was lenient. However, like McLure JA and for the reasons given by her, I am not persuaded that it was so low as to justify interference by this court. Nor am I persuaded that there is any basis for interfering with the sentence imposed in respect of the first complainant or the total sentence imposed. I agree with what McLure JA has said in those respects.
2 The appeal should be dismissed.
3 McLURE JA: This is a State appeal against sentence. The respondent was convicted on his own plea of guilty of two counts of having a sexual relationship with a child under the age of 16 years contrary to s 321A(3) of the Criminal Code (WA). A person has a sexual relationship if that person, on three or more occasions each of which is on a different day, commits a prescribed offence which includes sexual penetration or indecent dealing. Each count related to a separate complainant.
4 The respondent was sentenced to a term of 18 months' imprisonment on each count. The sentences were ordered to be served cumulatively resulting in an aggregate sentence of 3 years' imprisonment.
5 The State appeals on the ground that the individual sentences and the total sentence are manifestly inadequate.
6 The relevant facts are as follows. At the time of the offences the respondent was aged 25. The first complainant, who was the respondent's girlfriend, was aged 15 when the offence was committed which occurred in the period between 19 August 2006 and 24 September 2006. The first complainant turned 16 on 30 September 2006. The sexual contact included multiple counts of penile (seven) and digital (four) penetration of the vagina. On one occasion the first complainant demonstrated some resistance to the sexual contact but it was not suggested by the prosecution that the contact was without her consent as defined in the Code. Absence of consent is not an element of the offence. However, proven absence of consent would seriously aggravate the offending.
7 The second complainant was a friend of the first complainant. The sexual relationship with the second complainant, who was until then a virgin, occurred in the period between 22 September 2006 and 1 October 2006 and commenced the day before her 15th birthday. The sexual contact consisted of four acts of penile penetration of the vagina.
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8 There was evidence that the respondent understood from what he was told by the first complainant that she was 16 when the offending commenced. That is not a defence to an offence under s 321A of the Code unless the offender was not more than 3 years older than the child (s 321A(7)). The uncontradicted evidence from the respondent was that the complainants' displayed a strong interest and attraction towards him which he then reciprocated. Further, according to the respondent, the second complainant's mother requested that he engage in a sexual relationship with her daughter.
9 The respondent had no relevant record of prior offending, had a positive history of employment and entered a fast track plea of guilty.
10 The purpose of s 321A, like that of s 321, is to protect children: Deering v The State of Western Australia [2007] WASCA 212. As noted in Poulton v The State of Western Australia [2008] WASCA 97 [4], the seriousness of the offending is increased if a person abuses a position or situation that enables that person to influence, persuade, pressure, force, manipulate or otherwise take advantage of a child for the purpose of facilitating the commission of the offence. Such people are sexual predators who prey on and exploit the vulnerability of child victims. However, as the High Court noted in CTM v The Queen [2008] HCA 25 [16], the term "sexual predator" may be appropriate to describe some people who engage in sexual activity with consenting 15-year-old females, but it is hardly of universal application.
11 The purpose of s 321A (like s 321) is not only to protect children from sexual predators but also to protect children from themselves, regardless of the level of their maturity and sexual experience (Deering [17]). Ordinarily, the younger the victim, the more serious the offending.
12 It is significant that there is a 10-year age difference between the respondent and the complainants. However, the evidence in this case is to the effect that the respondent did not positively exploit any resulting ascendancy he may have had over the complainants or any vulnerability of the complainants for the purpose of committing the offences.
13 This court cannot intervene merely because it would have exercised the sentencing discretion in a manner different than the sentencing judge. It can only do so if the sentencing judge has made an express or implied material error of fact or law. An error is implied if the sentence is manifestly inadequate (or excessive). In determining whether a sentence is manifestly inadequate regard is had to the maximum penalty for the
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- offence, the standards of sentencing customarily imposed, the place which the conduct occupies on the scale of seriousness of crimes of that type and the personal circumstances of the offender.
14 The maximum penalty for a breach of s 321A of the Code is 20 years. However, the seriousness of the circumstances of the offence can vary greatly. The circumstances of the respondent's offending are at the low end of the scale of seriousness of crimes of this type. The offending occurred over a relatively short period. There was no position or relationship of trust between the respondent and the complainants. There is no basis in the evidence to support a finding that the respondent was a sexual predator. The sexual contact was a result of the respondent and the complainants socialising together. There was no evidence of any general atypical sexual attraction to underage girls. The respondent understood the first complainant to be 16 (which in fact she nearly was) at the time of the offending. The second complainant was 15 for most of the period of the offence. Further, the respondent made a fast track plea of guilty and has strong personal antecedents.
15 There is no reasonable basis for a claim that the sentence of 18 months' imprisonment for the offence against the first complainant is manifestly inadequate. It is consistent with the approach in Deering where the circumstances were considerably more serious. In Deering the appellant pleaded guilty to one count of digital penetration and four counts of penile penetration of a child aged 13. In addition to the charged acts the appellant, who was 23 at the time of the offences, admitted that there were 10 to 15 other occasions of penile penetration and the offending occurred over a significantly longer period than in this case. The initial sexual contact was at the appellant's instigation. On appeal the court imposed a sentence of 18 months' imprisonment for the digital penetration, 1 year and 10 months' imprisonment for each charged act of penile penetration and a total sentence of 2 years and 6 months.
16 The circumstances of the respondent's offending against the second complainant are more serious because she was younger than the first complainant and sexually inexperienced. A sentence of 18 months is at the low end of, but not outside, the range of a sound sentencing discretion. Moreover, the imposition of a sentence at the low end of the range cannot be criticised in circumstances where the sentencing judge ordered total cumulation of the sentences.
17 The State has not established that the individual or total sentences are manifestly inadequate. The appeal should be dismissed.
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18 MILLER JA: This is a State appeal against the adequacy of an aggregate sentence of 3 years' imprisonment imposed in the District Court at Perth upon the respondent on two counts of having a sexual relationship with two separate children under the age of 16 years. These were offences against the provisions of s 321A(3) of the Criminal Code. The provisions of s 321A(1) to (3) of the Criminal Code were, at the relevant time, in the following terms:
321A. Child under 16, sexual relationship with
(2) For the purposes of this section a person has a sexual relationship with a child under the age of 16 years if that person, on 3 or more occasions each of which is on a different day, does an act in relation to the child which would constitute a prescribed offence.
(2) In subsection (1) of the act referred to need not be the same act, or constitute the same offence on each of the 3 or more occasions.
(3) A person who has a sexual relationship with a child under the age of 16 years is guilty of a crime and is liable to imprisonment for 20 years.
19 The indictment which charged the respondent read as follows:
(1) Between 19 August 2006 and 24 September 2006 at [country town] [the appellant] had a sexual relationship with [T], a child under the age of 16 years.
(2) Between 22 September 2006 and 1 October 2006 at [country town] [the appellant] had a sexual relationship with [J], a child under the age of 16 years.
20 The respondent pleaded guilty to each of these counts in the District Court at Perth on 5 November 2007.
The facts
21 The facts put to the sentencing judge on 5 November 2007 were as follows:
Count 1
22 The complainant in relation to this count was born in 1990 and she was within approximately one month of the age of 16 years at the time the offences commenced. The respondent was then 25 years of age.
23 On 20 August 2006, the complainant and the respondent were sitting together on the complainant's bed when the respondent pushed the
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- complainant back onto the bed, kissed her and touched her breasts. He removed her jeans and underwear and inserted two fingers into her vagina. He then removed his own jeans and inserted his penis into the complainant's vagina. He ejaculated inside her.
24 On 26 August 2006, the complainant and the respondent were lying down together. The respondent removed the complainant's underwear and inserted his penis into her vagina. He had sexual intercourse with her, removing and reinserting his penis into her vagina on more than three occasions.
25 Later on the same evening, the respondent awoke the complainant during the night and digitally penetrated her vagina. He kissed her, touched her breasts (sucking her nipples) and then penetrated her vagina with his penis. He was about to digitally penetrate her, when the complainant told him that she had had enough and went to sleep.
26 Between 26 August and 24 September 2004, the complainant and the respondent were lying together on the respondent's bed. There was another incident of sexual intercourse in which the respondent ejaculated.
27 Between 2 and 24 September 2006, the complainant and the respondent were on the respondent's bed when there was another incident of sexual intercourse between them. On this occasion, the complainant had initially said, 'No'. The respondent inserted his penis into the complainant's vagina, but stopped when he saw that she was crying. Despite the complainant's initial reluctance, it was accepted that the incident was not one of sexual penetration without consent.
28 Between 2 and 24 September 2006, the respondent and complainant were on a bed in the complainant's home when the respondent first put his fingers into the complainant's vagina and then later inserted his penis into her vagina and had full sexual intercourse until he ejaculated.
29 Between 2 and 24 September 2006, there was another occasion when the complainant and the respondent were together on the respondent's bed. He digitally penetrated her vagina, rubbed her breasts and then inserted his penis into her vagina. He desisted when he heard somebody in an adjacent room.
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Count 2
30 The complainant in relation to this count was born in 1991 and at the time of the incidents in question, she was 14 years of age, but within a day of her 15th birthday.
31 The first incident occurred on 23 September 2006 when the complainant was a virgin. The complainant and the respondent were at the respondent's address delivering a bed. They went to the respondent's bedroom and there the respondent locked the door and proceeded to take off both his and the complainant's clothing. He placed his penis inside the complainant's vagina and had sexual intercourse with her. He continued until he ejaculated.
32 On 24 September 2006 (on the complainant's 15th birthday), when the respondent was staying at the complainant's house, he again removed both his and her clothing and inserted his penis into her vagina. He had sexual intercourse with her until he ejaculated.
33 On the morning of 25 September 2006, the respondent entered the complainant's bedroom and climbed into bed with her. He removed the clothing of the complainant and himself, and then inserted his penis into her vagina. He proceeded to have sexual intercourse until he ejaculated.
34 On 30 September 2006, the respondent went to the complainant's bedroom, where he woke her. He climbed into her bed. He removed her clothing and his own, and then inserted his penis into her vagina and had sexual intercourse with her until he ejaculated.
Submissions on sentence
35 The respondent was represented by counsel. Counsel relied upon the contents of a pre-sentence report which identified a significant dysfunctional family history for the respondent. That report contains a statement that the respondent was adamant that the second complainant's mother had asked him to engage in sexual relations with her daughter.
36 The respondent's explanation for the offences was that 'he was lonely when he met his girlfriend' (the first complainant) and it was for this reason that he commenced a relationship with her. He said that when his girlfriend went on holiday, an opportunity presented itself for him to engage in a sexual relationship with the second complainant, and he did so. The author of the report said of the respondent's attitude to the offences:
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- He does not view the offences as a pursuit of the girls, but rather accepting a proposition. His explanation, his perception of the events and justification for his actions would appear to be distorted. It would appear that he either inadvertently or purposely attempted to present himself in the best possible light. [The appellant] does not seem to understand that they were not of the age to make informed consent. He appeared to think that his actions were acceptable as he had strong feelings for both of the girls. He admitted that he experiences difficulty in meeting women and in sustaining long term relationships.
37 The pre-sentence report reveals that the respondent had a conviction for dangerous driving causing harm, but no convictions for sexual offences. He had received community-based orders for various offences, but they are of no significance in this case. The report reveals that the respondent was a substance abuser, until the age of 22 years, but appeared to have overcome that problem.
38 The conclusion in the report is that the respondent did not consider himself to be a sexual offender, but rather somebody 'who formed erroneous judgment motivated by loneliness and the inability to form age appropriate relationships'.
39 A psychological report also indicated that the respondent was ambivalent about whether his behaviour had been wrong. He was quoted as saying, 'I wouldn't see it as wrong'. He was not considered to have a 'generalised paedophilic orientation', and there was no evidence of any sexual dysfunction. The psychologist did, however, consider that he required input to help him develop awareness of the inappropriateness of developing sexual relationships with immature girls.
40 Counsel for the respondent stressed his acknowledgement of guilt, but conceded that sentences of imprisonment were called for.
Sentencing comments
41 The sentencing judge first reviewed the facts of the case. He pointed out that the offences involving the first complainant occurred over a period of approximately one month and the offences involving the second complainant over a period of about a week.
42 The sentencing judge made reference to the fact that the statutory maximum in relation to each of the offences was a sentence of 20 years' imprisonment, being an indication of how serious the legislature considered the offences to be.
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43 After reviewing the facts of the case, the sentencing judge pointed out that the respondent had no relevant prior criminal history. He made reference to the pre-sentence and psychological reports, and imposed sentences of 18 months on each count, to be served cumulatively, making an aggregate sentence of 3 years. The sentences took account of the 'transitional provisions', being sch 1 of the Sentencing Legislation Amendment and Repeal Act. Each sentence was reduced by one-third in accordance with cl 2(1) of the Schedule.
Appeal
44 The appellant was given leave to appeal on 25 February 2008. The grounds are as follows:
1. The sentences imposed were so inadequate as to manifest error, both in respect of the individual offences and the totality of the offending conduct, in that:
1.1 The sentences individually and in aggregate failed to reflect adequately the seriousness of the offending conduct, having regard to -
a) The difference in age between the respondent and the two young female victims;
b) The breach of trust and exploitation involved in both offences;
c) The offending conduct in relation to the first victim consisted of numerous sexual acts including 4 digital penetrations of the vagina and 7 penile penetrations of the vagina;
d) The offending conduct in relation to the second victim consisted of 4 acts of penile penetration of the vagina;
e) The offending conduct in relation to the first victim occurred on 7 distinct occasions over a period of approximately 1 month;
f) The offending conduct in relation to the second victim occurred on 4 distinct occasions over a period of 8 days;
g) The second victim was 14 years old and a virgin;
- h) On one occasion the first victim expressly refused sexual contact but the offender continued to have sexual intercourse with her;
i) The victim impact statements before the court in relation to both complainants disclosed that the offending conduct had a significant adverse impact on the victims.
- 1.2 The sentences failed to reflect adequately the need for personal and general deterrence;
1.3 The sentences failed to reflect the standards of sentencing ordinarily observed for offending of a similar nature.
- 2. The learned sentencing Judge erred in law by placing undue weight on the respondent's personal circumstances and prospects of rehabilitation.
Principles relating to State appeals
45 The principles applicable to prosecution appeals have been stated many times. In Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321, 340 - 341, Kirby J expressed those principles in the following terms:
For reasons of legal history and policy, the position of Crown appeals against sentence has long been regarded, in Australia and elsewhere, as being in a class somewhat different from that of an appeal against sentence by a convicted offender. When first introduced, Crown appeals were considered to cut across 'time-honoured concepts' … of the administration of criminal justice in common law legal systems. For this reason, it has sometimes been said that, as a 'matter of principle' … such appeals should be a comparative rarity. The attitude of restraint reflected in such remarks has often been justified on the basis that a Crown appeal against sentence puts the prisoner in jeopardy of punishment for a second time, a feature that is ordinarily missing from an appeal, or application for leave to appeal, brought by those who have been sentenced … The consequence is that where the Crown appeals, it is normally obliged to demonstrate very clearly the error of which it complains. The further consequence is that, where such demonstration succeeds, it is conventional for the appellate court to impose a substituted sentence towards the lower end of the range of available sentences … This convention tends to add an additional restraint upon interference, given the strong resistance that exists against appellate 'tinkering' with sentences.
46 In this court they were recently re-stated by Steytler P in The State of Western Australia v Collier [2007] WASCA 250 [18] - [23]. These principles are applicable to the present appeal, because the amendment to
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- s 41(4)(b) of the Criminal Appeals Act 2004 (WA), which has done away with the 'double jeopardy' principle and its consequence that when re-sentencing an offender on a prosecution appeal a sentence will ordinarily be less than the sentence which should have been imposed at first instance is not retrospective in operation. The section applies only to cases in which the sentence appealed dates after 3 January 2008. See The State of Western Australia v Richards [2008] WASCA 134.
Ground 1
47 This ground essentially complains that the sentences imposed were manifestly inadequate having regard to the facts of the case, particularly the age difference between the respondent and the victims, the breach of trust which was involved by reason of the fact that the first complainant thought she was in love with the respondent and the fact that the second complainant became known to the respondent only because the second complainant was a close friend of the first complainant.
48 The appellant contends that the respondent initiated sexual conduct with the second complainant by exploiting the close relationship between the two complainants for his own sexual gratification.
49 The appellant also places emphasis upon the nature and frequency of the sexual conduct. It points out that the respondent ejaculated during penile penetration and 'showed a disregard for [the complainants'] welfare by exposing them both to the risk of pregnancy ... '. It is also contended that it was the respondent who initiated sexual conduct with each of the complainants and it was he who escalated the personal relationships he had with each complainant into sexual relationships.
50 The appellant places emphasis upon the fact that the second complainant was 14 years of age (in fact, she was almost 15 years of age) and a virgin at the time of the offence. It is contended that the respondent 'corrupted' the complainant by sexualising her at a young age. In this respect, the appellant relies upon R v Avery [2002] WASCA 136 [18] where Wallwork, McKechnie and Murray JJ made reference to the facts of that case in the following terms:
[T]he respondent was undoubtedly the one who initiated the conduct which constituted the sexual offences committed. It was he who caused their escalation to full intercourse. It is clear that the complainant was sexually naïve and a virgin. In a real sense the result was her corruption by an older man so that she became a willing partner in the unlawful activities carried out without any force or coercion on the part of the respondent. The offences were repeated with increasing seriousness.
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- In my opinion, there is substance in this contention.
51 The appellant also makes reference to victim impact statements of the two complainants, both of which reveal that the respondent's conduct had a detrimental effect upon them. The first complainant left the country town where she was living and ceased her schooling. The second complainant left the same country town and her schooling also suffered.
52 The first complainant states, in her victim impact statement, that she was in love with the respondent and it was for that reason that she went around to his house. She still cared about him and did not want to go through with the trial. She wanted to see him and thought that perhaps he would have changed. She felt as if she was the one to blame for what had happened to the respondent.
53 The second complainant states, in her victim impact statement, that she was conscious of the fact that people at school and in the town were talking about her as a consequence of what had occurred. She felt that people were talking behind her back 'calling me a slut'. She felt 'dirty, sick and disgusted'.
54 In VIM v The State of Western Australia [2005] WASCA 233; (2005) 31 WAR 1 [291], the court (Roberts-Smith and Wheeler JJA and Miller AJA) drew attention to the consequences of sexual offending upon children, stressing that often there will be 'exaggerated doubts and fears in relation to the parenting of the complainant's own children, and disrupted schooling which adversely affects the complainant's future educational and employment prospects, are very common'. The court also pointed out [292] that many child complainants feel that their abuse is to some degree their fault. These observations were made in the context of different sexual offending, with particular emphasis upon frequent and prolonged abuse of children, but they have relevance to the present cases.
55 In Deering v The State of Western Australia [2007] WASCA 212, the court was concerned with offences against the provisions of s 321 of the Criminal Code, being one count of digital penetration of a child aged between 13 and 16 years and four counts of penile penetration of the same child.
56 Section 321 was inserted into the Criminal Code in 1992. It has since been amended several times. It deals with sexual offences against children, with 'a child' being defined for the purposes of the section as a child over the age of 13 years and under the age of 16 years. Sexual penetration of a child is a crime ordinarily punishable by imprisonment
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- for 14 years (s 321(7)). It is a section which creates separate offences for each act of sexual penetration committed by a person against a child. It also creates offences of indecent dealing, indecently recording and procuring, inciting, or encouraging a child to do certain acts.
57 Wheeler JA (with whom Owen and Miller JJA agreed) made reference to the legislative purpose of the prohibition of sexual penetration of a child between the ages of 13 and 16 years, saying:
These observations invite attention to the legislative purpose of the prohibition of sexual penetration of a child between the ages of 13 and 16. 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. [17] - [18]
58 In Deering, the appellant was 23 years of age when he engaged in a sexual relationship with a child who was 13 years of age. He had moved into the house where the complainant was living and, when the complainant's mother found out about the relationship, he was asked to leave. The complainant contacted the appellant and undoubtedly she was a willing participant in the sexual behaviour that occurred.
59 The sentences of imprisonment which had been imposed were varied, so as to make an aggregate sentence of 2 years 6 months' imprisonment, with a sentence of 1 year 10 months being imposed in relation to the counts of penile penetration.
60 In Riggall v The State of Western Australia [2008] WASCA 69, Wheeler JA made further reference to the legislative history of s 321 of
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- the Criminal Code, pointing out that the mischief at which the reforms were aimed was not that children were sexually active, but rather that sexual abuse of children was inadequately punished, or unpunished [33]. Her Honour repeated what had been said by her in Marris v The Queen [2003] WASCA 171 and in Deering, to the effect that the presence of an element of abuse is a concept of considerable importance in relation to sentencing for offences of this type. Her Honour 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. Generally, a sensible exercise of the prosecutorial discretion will have the result that, where there is not even arguably an element of abuse, a matter will not come before the court for sentence. [48]
62 McLure JA at [4] stressed that the purpose of s 321 of the Criminal Code was to protect children and the seriousness of the offending was increased if a person abused a position or situation that enabled him to influence, persuade, pressure, force, manipulate or otherwise take advantage of a child for the purpose of facilitating the commission of the offence. Her Honour said that such people 'are sexual predators who prey on and exploit the vulnerability of their child victims'.
63 All of this is true. The more the element of abuse, the more severe the sentence will be (see Riggall [48] (Wheeler JA). But the cases do not establish that in the absence of abuse caused by predatory behaviour, the offences are not serious.
64 The present case is one of exploitation. The aggravating factors which are present in the present case include:
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- (a) the age disparity between the respondent and the complainants;
(b) the fact that there were two separate complainants;
(c) the fact that there were four digital penetrations of the vagina and seven penile penetrations of the vagina in relation to the first complainant;
(d) the fact that there were four penile penetrations of the vagina of the second complainant; and
(e) the fact that the second complainant was younger than the first and a virgin when the sexual conduct began.
65 In my opinion, the sentences of 18 months' imprisonment in respect of each count on the indictment were manifestly inadequate when regard is had to these factors. Section 321A of the Criminal Code is not directed only at cases which involve sexual predators. The section seeks to protect young people from embarking upon sexual activity at an age at which they may be unable to fully comprehend or cope with the social and emotional consequences of that activity: Deering [17] (Wheeler JA).
66 In the present case, the respondent took advantage of the two complainants in the circumstances to which I have made reference. I consider that his conduct was such that it was deserving of a more severe sentence in relation to each count than was imposed.
67 In my opinion, given that the established principles in relation to prosecution appeals are applicable to the case sentences of 2 years' imprisonment in relation to each count would more properly reflect the seriousness of the offences committed and the factors to which I have made reference.
Ground 2
68 The second ground contends that the sentencing judge erred by placing undue weight on the respondent's personal circumstances and prospects of rehabilitation. It can be accepted that, in cases involving sexual offending, the fact that the offender is otherwise of good character should carry less weight than might otherwise be the case: see VIM [321].
69 In the present case, the appellant submits that the inference can be drawn that the sentencing judge placed undue weight on personal matters favourable to the respondent.
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70 I am unable to see any substance in this ground. The personal circumstances of the respondent were taken into account, but I do not apprehend the sentencing judge's reasons to have placed undue weight upon them.
71 I would therefor dismiss this ground of appeal.
Conclusion
72 In my view, the appeal should be allowed, on ground 1 of the grounds of appeal. The sentences imposed on each count on the indictment should be set aside, and in lieu thereof there should be sentences of 2 years' imprisonment. Those sentences should be ordered to be served cumulatively, to make an aggregate sentence of 4 years' imprisonment.
73 Those sentences reflect the fact that the respondent faces double jeopardy on the hearing of this appeal (as to which see Dinsdale [62] (Kirby J)).
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