The State of Western Australia v MGT
[2024] WASCA 136
•4 NOVEMBER 2024
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: THE STATE OF WESTERN AUSTRALIA -v- MGT [2024] WASCA 136
CORAM: BUSS P
MAZZA JA
DALTON AJA
HEARD: 7 OCTOBER 2024
DELIVERED : 4 NOVEMBER 2024
FILE NO/S: CACR 112 of 2023
BETWEEN: THE STATE OF WESTERN AUSTRALIA
Appellant
AND
MGT
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram: PETRUSA DCJ
File Number : IND 113 of 2023
Catchwords:
Criminal law - State appeal against sentence - Respondent 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 - Sentence of 3 years' immediate imprisonment with parole eligibility - Manifest inadequacy
Legislation:
Criminal Code (WA), s 321(2), s 321(7)(a)
Result:
Leave to appeal granted
Appeal allowed
Primary judge's sentencing decision set aside
Respondent resentenced
Category: D
Representation:
Counsel:
| Appellant | : | L M Fox SC |
| Respondent | : | E R Zillessen |
Solicitors:
| Appellant | : | Director of Public Prosecutions (WA) |
| Respondent | : | Legal Aid Western Australia |
Case(s) referred to in decision(s):
Brennan v The State of Western Australia [2020] WASCA 20
Buckley v The State of Western Australia [2015] WASCA 242
CMB v Attorney‑General (NSW) [2015] HCA 9; (2015) 256 CLR 346
Deering v The State of Western Australia [2007] WASCA 212
DRH v The State of Western Australia [2021] WASCA 97
Floresta v The State of Western Australia [2015] WASCA 93
GNR v The State of Western Australia [2015] WASCA 5
Green v The Queen [2011] HCA 49; (2011) 244 CLR 462
McAlpine v The State of Western Australia [2018] WASCA 195
Munda v The State of Western Australia [2013] HCA 38; (2013) 249 CLR 600
Pallister v The State of Western Australia [No 2] [2015] WASCA 221
Riggall v The State of Western Australia [2008] WASCA 69; (2008) 37 WAR 211
Tapper v The State of Western Australia [2016] WASCA 140
The State of Western Australia v Doyle [2017] WASCA 207
The State of Western Australia v Fyffe [2018] WASCA 173
The State of Western Australia v Hussain [2020] WASCA 186
The State of Western Australia v SJH [2010] WASCA 40; (2009) 200 A Crim R 228
JUDGMENT OF THE COURT:
This is a State appeal against sentence.
On 7 September 2023, the respondent was convicted, on his plea of guilty, of one count in an indictment.
The count alleged that between 31 January 2022 and 22 April 2022 the respondent sexually penetrated the victim, who was a child aged 14 years, by penetrating her vagina with his penis, contrary to s 321(2) read with s 321(7)(a) of the Criminal Code (WA) (the Code).
The maximum penalty for the offence is 14 years' imprisonment.
On 7 September 2023, Petrusa DCJ sentenced the respondent to 3 years' immediate imprisonment with parole eligibility.
The sole ground of appeal alleges that the sentence is manifestly inadequate.
We would grant leave to appeal and allow the appeal. The primary judge's sentencing decision, including the sentence imposed by her Honour, should be set aside and the respondent resentenced by this court.
Overview of the facts and circumstances of the offending
At the time of the offending the respondent was aged 37. As we have mentioned, the victim was aged 14.
The respondent had been a close friend of the victim's step‑mother for about 18 years.
In 2020, the respondent met the victim for the first time. Later that year, the victim's step‑mother invited the respondent to reside at their home. The respondent began living with them in about March 2021.
On an unknown date between 31 January 2022 and 22 April 2022, while he was living with the victim and her step‑mother, the respondent sexually penetrated the victim's vagina with his penis. The respondent did not wear a condom. As a result of the sexual penetration, the victim became pregnant. On or about 21 April 2022, the victim's step‑mother discovered the pregnancy. On 23 April 2022, police interviewed the respondent. He denied ever having had sexual intercourse with the victim. In November 2022, the victim gave birth. A paternity test revealed that it was 2.9 billion times more likely that the respondent was the biological father than if the biological father was another man unrelated to him. On 30 December 2022, police again interviewed the respondent. He again denied ever having had sexual intercourse with the victim. On 30 December 2022, the respondent was charged with the offence in question.
Ultimately, the respondent pleaded guilty to the charged offence, but claimed that the sexual penetration occurred in the context of a 'romantic relationship' between him and the victim. The respondent asserted that he and the victim loved each other. He explained that they had planned to wait until the victim was aged 16 to engage in sexual intercourse. The respondent admitted that, despite this alleged plan, in February 2022 he had unprotected sexual intercourse with the victim. He said this was the only occasion on which intercourse had occurred.
The information given by the victim to police was materially different from the respondent's account. On 28 November 2022, police attempted to interview the victim. The victim said that the respondent had raped her and that this had occurred more than once. She began to describe one of these incidents, but became so distressed that the interview had to be abandoned. A victim impact statement tendered at the sentencing hearing before the primary judge revealed that the victim's distress remained at such a level as to prevent her from being able to discuss what had happened. The victim is the sole carer of her baby.
The expert reports before the primary judge
At the sentencing hearing, the primary judge received a psychological report dated 6 March 2023 from Ms Jane Sampson, a clinical and forensic psychologist, and a neuropsychological report dated 17 July 2023 from Dr Brenton Maxwell, a clinical neuropsychologist and a clinical psychologist.
Ms Sampson administered a brief (screener) cognitive assessment of the respondent using the Wechsler Abbreviated Scale of Intelligence ‑ 2nd Edition (WASI ‑ II). The respondent performed below 99.7% of other adults of his age in verbal (vocabulary, abstract reasoning) subtests and 99.9% of other adults of his age in non‑verbal (fluid reasoning, visuoconstructional) subtests. According to Dr Maxwell, that placed the respondent's intellectual function in the low end of the mild to moderate range of Intellectual Disability.
Ms Sampson also administered a self‑report questionnaire (DASS) of current symptoms of depression, anxiety and stress in the two weeks prior to her assessment of the respondent. The respondent endorsed 'extremely severe' symptoms of depression and anxiety, and 'severe' symptoms of stress.
Ms Sampson made observations and expressed opinions in her report as follows:
(a)The respondent is an emotionally vulnerable and passive man with intellectual and social limitations, a lack of insight and poor self‑awareness. He likely suffers from a neurodevelopmental disorder such as autism spectrum disorder.
(b)There is possible evidence that the respondent has major problems planning for the future due to his intellectual limitations, social challenges and emotional immaturity.
(c)The respondent's involvement with the victim is likely to be due to his emotional identification with her as a result of his intellectual and social challenges. His offending appears to have been driven by his cognitive and social limitations, possible autism spectrum disorder, sexual gratification and opportunity, emotional identification with the victim, poor stress resilience and emotional dysregulation, an inability to meet his sexual needs in an appropriate relationship, emotional immaturity, poor self‑awareness, impulsivity, poor judgment and poor consequential thinking.
(d)The respondent is unsuitable for group psychological programmes, but he would benefit from sessions with a psychologist who specialises in working with adults who have the respondent's challenges.
(e)The respondent is likely to be very vulnerable in a custodial setting.
Dr Maxwell made observations and expressed opinions in his report as follows:
(a)Dr Maxwell administered a range of neuropsychological tests. On standardised tests of effort, the respondent performed below 'the clinically significant base‑rate cutoffs compared to a number of clinical populations', including autism spectrum disorder and Intellectual Disability groups. The statistical probability of failing 'multiple standardised effort measures' by chance alone is extremely low.
(b)The severity of impairment on the respondent's test scores (both on the tests Ms Sampson administered and on the tests Dr Maxwell administered) was not consistent with his clinical presentation. Dr Maxwell elaborated:
There were also a number of qualitative indicators of deliberate reduced effort … Moreover … [the respondent] was unusually slow on speed/timed tasks to a degree that was implausible given his otherwise normal motor function. On tasks that were not obviously speed based, he performed far more quickly, which contraindicates the presence of legitimate underlying cognitive speed deficits.
(c)Dr Maxwell said that there were 'significant concerns regarding the validity of the cognitive assessment findings, and the obtained results cannot be interpreted as reliable or accurate reflections of [the respondent's] true cognitive abilities'. Mr Maxwell added that, overall, the respondent's scores across 'a range of formal and embedded measures of performance validity were clearly indicative of conscious underperformance on cognitive tasks' (original emphasis). The pattern of the respondent's performances was inconsistent with known deficits related to brain dysfunction. In other words, the pattern of the respondent's results was 'implausibly inconsistent across tasks and when compared to his actual functional level in daily life'. The results obtained by Dr Maxwell called into question the validity of Ms Sampson's intellectual test data from the WASI ‑ II.
(d)During his interview with Dr Maxwell, the respondent spontaneously demonstrated 'a level of empathetic understanding' that would be unusual for someone with autism spectrum disorder or moderate intellectual disability.
(e)There was insufficient evidence that the respondent would meet any of the core criteria for the diagnosis of autism spectrum disorder.
(f)Dr Maxwell agreed with Ms Sampson's recommendations that the respondent appears to have untreated psychological needs that may respond to individual psychological therapy. Those untreated psychological needs include active symptoms of depression and anxiety. The respondent may benefit from working with a psychologist on 'behaviour activation and emotional regulation strategies'. It may also be useful for the respondent to have a discussion with his general medical practitioner regarding mood stabiliser medications.
The primary judge's sentencing remarks
The primary judge recounted the facts and circumstances of the offending.
Her Honour observed that the victim's description of what had occurred and her significant distress were inconsistent with the sexual intercourse that resulted in her pregnancy being the product of a 'mutually romantic relationship' or an isolated event (ts 35). Her Honour noted that, in view of the victim's continuing high level of distress, the State did not seek to prove, as aggravating factors, that the victim did not consent in fact to the sexual intercourse or that the sexual intercourse was part of a continuing course of similar conduct (ts 35 ‑ 36). Her Honour then said (ts 36):
I will therefore proceed on the basis that I cannot sentence you on the basis that there was a lack of consent, nor that it was part of a course of conduct. I accept that there are some images contained in the State brief which are consistent with you having a good relationship with [the victim], in that you hung out together and had fun, images that are consistent with a relationship of mutual affection.
I am, however, not satisfied, on the basis of these, that it was a romantic relationship where each of you believed you were in love with the other.
The primary judge commented upon the impact of the respondent's offending on the victim as follows (ts 36):
The distress and impact of your crime on [the victim] has been significant. She has become a mother when she herself is still a child.
She has had to grow up, make decisions about whether to keep the child or not. She has had to take responsibility for the raising of a child. She can no longer go out with friends and do what other teenagers are doing. Worse is that when her pregnancy became public knowledge, she was subjected to bullying and even assaulted at school. As a result, she left school, has become very reclusive and her mental health has suffered.
Her limited financial resources mean that getting help for herself has been extremely difficult and only adds to her stress and distress. In her words, her life has been turned upside down. The financial, emotional and practical difficulties associated with this offending and the resulting parenthood have overwhelmed her. To say that the impact of your offending has been significant does not adequately capture the extent of the harm you have caused.
Her Honour found that the respondent's offending was very serious in that:
(a)The respondent was 23 years older than the victim.
(b)The respondent was a trusted member of the household.
(c)The respondent abused that trust by taking advantage of his trusted position and any affection that the victim had for him.
(d)Even if the victim had a 'schoolgirl crush' on the respondent and he felt some affection towards her, it was the respondent's responsibility to ensure that he did not encourage her or abuse her in the manner he did.
(e)The respondent took no care to protect the victim from the consequences of sexual activity.
(f)As a result of the sexual activity, the victim will have the lifetime care of the respondent's child.
(g)The impact of the offending on the victim has been enormous. Her mental health has suffered. She has been adversely affected psychologically, socially, educationally and financially. She has been overwhelmed by the offending and its consequences for her.
(h)Irrespective of the true position, in the victim's mind she was raped by the respondent.
The primary judge set out in detail the respondent's personal circumstances and antecedents. In particular:
(a)The respondent was aged 37 at the time of the offending and was 39 when sentenced.
(b)The respondent's parents separated when he was aged 5. He then lived mostly with his father. The respondent described his childhood as having been supportive, although there were challenges in it. That support from his childhood has continued to the present day.
(c)During his childhood the respondent was the victim of sexual abuse on three occasions.
(d)The respondent had learning difficulties at school. He was diagnosed with attention deficit hyperactivity disorder (ADHD). He had major social difficulties at school. He was unable to make friends and was frequently bullied. He ceased attending school during year 9.
(e)The respondent has worked on an intermittent basis since leaving school. However, he did not work during the period of about eight years before he was sentenced.
(f)Apart from his child with the victim, the respondent has three children from three prior relationships. The second and third relationships were traumatic. One of his previous partners was violent towards him. He suffered a back injury when she assaulted him. The injury causes him chronic pain.
(g)When he was sentenced the respondent was living with members of his family.
(h)Her Honour received written references from members of the respondent's family and from his friends. The referees spoke of the respondent's good qualities, the assistance he had given them and the care and concern he had shown to them.
(i)The respondent has a criminal record, but it is very limited. Her Honour gave it no weight.
During debate with counsel at the sentencing hearing, her Honour asked defence counsel whether the respondent had written a letter dated 7 September 2023 to her Honour or whether someone else wrote it on his behalf. Defence counsel told her Honour that his understanding was that the respondent wrote it. Her Honour responded that the letter was very articulate and showed a level of intellect that was 'consistent with Dr Maxwell's conclusion that [the respondent] was deliberately underperforming for his self‑benefit' (ts 23).
The primary judge did not, however, repeat those observations in her sentencing remarks.
Her Honour referred in detail to Ms Sampson's report and Dr Maxwell's report and arrived at these conclusions (ts 41 ‑ 42):
I cannot give any weight to the opinions expressed by Ms Sampson as you have clearly been trying to underperform for your own benefit.
This includes her opinion that you are extremely vulnerable and would not do well in a prison environment. Dr Maxwell, however, agrees that you have untreated psychological issues including active symptoms of depression and anxiety.
Your endeavours to subvert the assessment process do you no credit and whilst I accept you have had difficulties in past relationships, and have experienced trauma through them, through your education and possibly at the hands of sexual abusers, it is likewise clear that you are not … entirely the vulnerable individual that you presented to the authors of the pre‑sentence report and Ms Sampson.
There is mitigation to be found in your previous traumas and I do accept that you are someone who suffers anxiety and depression and that too is a matter to which I will give some regard.
The primary judge said that she had read the respondent's letter dated 7 September 2023 and that the letter had 'a focus towards the positive things that [the respondent had] done and the way [he had] lived and how there will be ultimately an effect upon [him]' (ts 42). Her Honour accepted that the respondent regretted his offending and that the regret was substantial. However, the respondent lacked an understanding of what he had done to the victim.
Her Honour allowed a discount of 25% for the respondent's plea of guilty.
The primary judge did not make any finding about the risk of the respondent reoffending in a similar manner.
Her Honour reiterated the facts and circumstances which demonstrated the seriousness of the offence before imposing the sentence of 3 years' immediate imprisonment with parole eligibility.
The respondent's application in an appeal for leave to adduce additional evidence
By an application in an appeal dated 14 May 2024, the respondent applied for leave to adduce additional evidence in the appeal as follows:
(a)the affidavit of Emma Ruth Zillessen sworn 14 May 2024, to which is annexed a report dated 26 March 2024 from Dr Mandy Vidovich, a clinical neuropsychologist; and
(b)the affidavit of the respondent's father sworn 5 April 2024.
The respondent's solicitors retained Dr Vidovich to review the respondent's cognitive and psychological functioning. She was given a copy of Ms Sampson's report and Dr Maxwell's report. Dr Vidovich interviewed and assessed the respondent in the course of appointments with him on 6, 7 and 18 March 2024.
Dr Vidovich states in her report that:
(a)The respondent's neuropsychological profile is in keeping with his disclosed, early childhood diagnosis of ADHD. There is also a likely co‑morbid Specific Learning Disorder (written expression and spelling) and Language Disorder (mild in severity). In addition to his developmental conditions, the respondent meets diagnostic criteria for a Generalised Anxiety Disorder and there is a history consistent with a prior Substance Use Disorder (currently in remission).
(b)At the time of the offending, the respondent perceived himself to be in a relationship with the victim and, while having awareness of the potential legal implications, did not consider the consequences of his behaviour.
(c)The respondent's neurodevelopmental and psychological conditions 'contributed causally' to his behaviour at the time of the offending. Impaired judgment, consequential thinking, and problems regulating his emotions and behaviour are core features of the respondent's historical presentation. Drivers contributing to his offending behaviour include his cognitive, communication and social limitations, his poor stress resilience and coping mechanisms, and his emotional immaturity.
(d)The co‑morbidities of his learning, behavioural and mood issues contribute to a custodial sentence weighing more heavily upon him by virtue of his neurodevelopmental deficits and neuropsychiatric conditions. He is vulnerable to being taken advantage of by others, particularly within a prison setting.
The respondent's father deposed in his affidavit, relevantly, that he (and not the respondent) wrote the letter dated 7 September 2023 to the primary judge.
The father explained in his affidavit:
[The respondent and I] sat down together and talked about what [the respondent] wanted to include in the letter.
I wrote a rough draft based on what he said, and I made some suggestions about including some good things he had done in the past, then I typed it up and he read it.
I wanted it to be clear and grammatically correct and to sound eloquent because it was an important document.
The father said that he sent a copy of the letter to defence counsel, but he did not tell defence counsel that he had written the letter.
At the hearing of the appeal, counsel for the respondent informed the court that the respondent sought to rely upon Dr Vidovich's report for the purposes of (appeal ts 2):
(a)the respondent's opposition to the ground of appeal;
(b)the respondent's contention that even if the ground of appeal is made out, this court should dismiss the appeal in exercise of the residual discretion; and
(c)any resentencing of the respondent if the ground of appeal is made out and this court proceeds to resentence him.
Counsel for the respondent also informed the court that the respondent did not seek to rely upon Dr Vidovich's report for the purpose of challenging any findings of fact made by her Honour (appeal ts 2).
However, counsel wanted this court to make two findings having regard to Dr Vidovich's report. First, that the respondent's neurodevelopmental and psychological conditions contributed causally to his behaviour at the time of the offending. Secondly, the co‑morbidities of the respondent's learning, behavioural and mood issues contribute to a custodial sentence weighing more heavily upon him by virtue of his neurodevelopmental deficits and neuropsychiatric conditions (appeal ts 8 ‑ 9).
As to the first finding wanted by counsel for the respondent, counsel ultimately put her case on the 'causal contribution' aspect of that finding, in effect, as follows (appeal ts 11 ‑ 12):
(a)the respondent thought the victim had a crush on him; and
(b)as a result of his conditions, the respondent was less able to resist the temptation of doing what any other 37‑year‑old man without his conditions would not do, namely have sex with a 14‑year‑old girl.
Counsel for the respondent further informed the court that the respondent sought to rely upon the affidavit of the respondent's father for the purpose of correcting the primary judge's misapprehension about who wrote the letter dated 7 September 2023 to her Honour (appeal ts 3).
Counsel for the State did not oppose the court granting the respondent's application for leave to adduce additional evidence in the appeal (appeal ts 12).
Counsel for the State submitted in relation to Dr Vidovich's report (appeal ts 19):
(a)Nothing in Dr Vidovich's report rehabilitates Ms Sampson's findings and opinions. Ms Sampson's report was flawed because her assessment of the respondent was not subject to appropriate quality controls.
(b)Nothing in Dr Vidovich's report casts doubt on the findings and opinions of Dr Maxwell. Dr Maxwell implemented appropriate quality controls.
(c)Dr Vidovich expresses an opinion as to causal contribution, but there is no precision in her report about the nature or character of the causal contribution. For example, it is not suggested by Dr Vidovich that, as a result of his neurodevelopmental and psychological conditions, the respondent is more likely to be attracted to underage girls or is more likely to misconceive the appropriateness of any sexual interaction with underage girls.
It was submitted in relation to the affidavit of the respondent's father (appeal ts 16):
(a)The State does not dispute that the father was in fact the author of the letter dated 7 September 2023 to the primary judge.
(b)Her Honour did not place any weight on the literacy and intellect apparent from the letter in deciding to reject Ms Sampson's findings and opinions and accept Dr Maxwell's findings and opinions.
At the hearing of the appeal, this court granted the respondent's application for leave to adduce the affidavit of Ms Zillessen (including Dr Vidovich's report) and the affidavit of the respondent's father as additional evidence in the appeal.
Counsel for the State's submissions in the appeal
Counsel for the State submitted that the sentence of 3 years' immediate imprisonment failed properly to reflect the seriousness of the offence, including the aggravating features of the offending. Counsel emphasised that the pregnancy and the birth of the child were particularly aggravating features of the offending. It was submitted that the sentence was unreasonable or plainly unjust and that this court's intervention is required to ensure the maintenance of proper sentencing standards.
Counsel for the respondent's submissions in the appeal
Counsel for the respondent submitted that, on the basis of the facts and circumstances before the primary judge, while the sentence of 3 years' immediate imprisonment was 'arguably lenient', the sentence was not manifestly inadequate.
It was submitted in the alternative that, on the basis of the facts and circumstances before her Honour and having regard to the additional evidence from Dr Vidovich and the respondent's father, the sentence was not unreasonable or plainly unjust.
It was submitted in the further alternative that if the ground of appeal is made out, the appropriate course in the circumstances would be for this court to note the inadequacy of the sentence but refuse to intervene having regard to the additional evidence from Dr Vidovich and the respondent's father.
The merits of the appeal
The applicable principles where the State asserts that a sentence is manifestly inadequate and relevant general sentencing principles are set out in TheState of Western Australia v Hussain.[1]
[1] TheState of Western Australia v Hussain [2020] WASCA 186 [88] ‑ [97] (Buss P, Mazza & Beech JJA).
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 adequacy or inadequacy of a sentence. See Munda v The State of Western Australia;[2] The State of Western Australia v Doyle;[3] McAlpine v The State of Western Australia.[4]
[2] Munda v The State of Western Australia [2013] HCA 38; (2013) 249 CLR 600 [38] - [39] (French CJ, Hayne, Crennan, Kiefel, Gageler & Keane JJ).
[3] The State of Western Australia v Doyle [2017] WASCA 207 [36] (Buss P, Mazza JA & Hall J).
[4] McAlpine v The State of Western Australia [2018] WASCA 195 [54] (Buss P & Mazza JA).
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) read with s 321(7)(a) of the Code, is 14 years' imprisonment.
The public policy and purpose underpinning s 321(2) is not only the protection of children from abuse by sexual predators, but also the protection of children from themselves. See Deering v The State of Western Australia;[5] The State of Western Australia v SJH;[6] GNR v The State of Western Australia.[7]
[5] Deering v The State of Western Australia [2007] WASCA 212 [17] ‑ [18] (Wheeler JA; Owen & Miller JJA agreeing).
[6] The State of Western Australia v SJH [2010] WASCA 40; (2009) 200 A Crim R 228 [69] (Wheeler JA).
[7] GNR v The State of Western Australia [2015] WASCA 5 [61] (McLure P; Buss & Mazza JJA agreeing).
In Riggall v The State of Western Australia,[8] Wheeler JA (Buss JA agreeing) said 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 [48]:
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. (emphasis added)
[8] Riggall v The State of Western Australia [2008] WASCA 69; (2008) 37 WAR 211 [48].
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.
However, free and voluntary 'consent' in fact 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 SJH [69], 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.
The policy and purpose of protecting children from themselves, in the sense explained by Wheeler JA in Deering [17], is not confined to children under the age of 16 who, in fact, have little or no sexual experience. See Tapper v The State of Western Australia.[9]
[9] Tapper v The State of Western Australia [2016] WASCA 140 [84] (Buss P; Mazza & Mitchell JJA agreeing).
There is no tariff for sexual 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.
We have had regard to the cases cited by counsel for the State and counsel for the respondent; in particular, GNR; Floresta v The State of Western Australia;[10] Pallister v The State of Western Australia [No 2];[11] Buckley v The State of Western Australia;[12] The State of Western Australia v Fyffe;[13] Brennan v The State of Western Australia;[14] DRH v The State of Western Australia.[15] It is unnecessary to reproduce the relevant facts and circumstances or the sentences imposed in those cases. None of them is truly comparable with the current offending.
[10] Floresta v The State of Western Australia [2015] WASCA 93.
[11] Pallister v The State of Western Australia [No 2] [2015] WASCA 221.
[12] Buckley v The State of Western Australia [2015] WASCA 242.
[13] The State of Western Australia v Fyffe [2018] WASCA 173.
[14] Brennan v The State of Western Australia [2020] WASCA 20.
[15] DRH v The State of Western Australia [2021] WASCA 97.
In the present case, the respondent's offending was egregious. That is readily apparent from our summary of the facts and circumstances of the offending, the primary judge's findings of fact (in particular, the findings that we have set out at [22] above) and her Honour's sentencing remarks generally.
The respondent knew, when he committed the offence, that the victim was aged 14. There was a very significant age disparity (about 23 years) between them. The respondent knew, when he committed the offence, that the age of consent was 16 and that there would be legal implications for him if he had sex with an underage girl. He did not wear a condom.
Her Honour did not sentence the respondent on the basis that there was an absence of 'consent' in fact by the victim. Although her Honour accepted that there was some evidence in the State's brief consistent with the respondent having a good relationship with the victim (including some evidence of mutual affection between them), her Honour was not satisfied that there was a 'romantic relationship' where each of them believed that he or she was in love with the other.
When a male offender commits a sexual offence against a female victim that involves unprotected penile/vaginal intercourse, the offender's failure to wear a condom is an aggravating factor because it exposes the victim to the risk of pregnancy and the risk of contracting a sexually transmissible disease or infection. The risk is realised if the victim actually becomes pregnant or actually contracts a sexually transmissible disease or infection.
In the present case, the victim's pregnancy and the birth of the child were very serious aggravating features of the respondent's offending. The victim was confronted with the invidious decision of whether to terminate the pregnancy or to have the child. The pregnancy and the birth have had a devastating impact upon the victim. She has suffered significant damage psychologically, socially, educationally and financially. The offending and its consequences have been overwhelming for her. Some of those consequences are ongoing.
The victim has the responsibility of endeavouring to care for and nurture a baby when she is still a child herself. The child will not have the care and support of her biological father. At some stage it will be necessary for the victim to decide upon the explanation she will give to the child about the circumstances of her conception.
We accept on the basis of Dr Vidovich's report that, as a result of his neurodevelopmental and psychological conditions, the respondent believed that the victim had a crush on him and that he was less able than an adult man without his conditions to resist the temptation of having sex with the victim. However, we do not accept, on the basis of Dr Vidovich's report, that there was a causal connection in any other sense between the respondent's conditions, on the one hand, and his behaviour at the time of the offending, on the other.
We accept the evidence in the affidavit of the respondent's father that the father (and not the respondent) wrote the letter dated 7 September 2023 to the primary judge.
In our opinion, her Honour was correct to reject the findings and opinions of Ms Sampson because her assessment of the respondent was not subject to appropriate quality controls. We are also of the opinion that her Honour was correct to accept the findings and opinions of Dr Maxwell. Dr Vidovich's report does not undermine the correctness of her Honour's conclusions in relation to Ms Sampson's report and Dr Maxwell's report.
The respondent's neurodevelopmental and psychological conditions diminished, to some extent, the respondent's moral culpability for the offending. But, on the other hand, those conditions increased the importance of personal deterrence. It is true that her Honour did not make a finding about the risk of the respondent reoffending in a similar manner. However, the respondent's offending against the victim demonstrated that his cognitive awareness that the age of consent was 16, and that there would be legal implications for him if he had sex with an underage girl, was overridden by his sexual attraction to the victim.
The respondent was not youthful or inexperienced, for sentencing purposes, when he committed the offence.
There were, of course, a number of mitigating factors.
The respondent pleaded guilty and received a discount of 25% pursuant to s 9AA of the Sentencing Act 1995 (WA).
During his childhood the respondent experienced some significant hardship and difficulties, especially at school. He was diagnosed with ADHD. He was unable to make friends and was frequently bullied at school. He ceased attending school during year 9. Two significant relationships as an adult were traumatic. He has a back injury which causes him chronic pain.
The respondent does not have any prior criminal convictions of any significance. Her Honour rightly gave no weight to his criminal record. Family members and friends have spoken well of him.
The respondent has untreated psychological needs including active symptoms of depression and anxiety.
We accept on the basis of Dr Vidovich's report that, as a result of the co‑morbidities of the respondent's learning, behavioural and mood issues, a custodial sentence weighs more heavily upon him by virtue of his neurodevelopmental deficits and neuropsychiatric conditions. He is vulnerable to being taken advantage of by others, especially within a custodial setting.
The respondent has evinced substantial regret for his offending, but he lacks an understanding of the consequences of his behaviour in relation to the victim.
In our opinion, the sentence of 3 years' immediate imprisonment was not commensurate with the seriousness of the respondent's offence.
We are satisfied, after considering the sentence in the context of:
(a)the maximum penalty;
(b)the facts and circumstances of the offence;
(c)the vulnerability of the victim;
(d)the general pattern of sentences for offences of the kind in question;
(e)the place which the respondent's offending occupies on the relevant scale of seriousness;
(f)the findings we have made in relation to the additional evidence admitted in the appeal;
(g)the respondent's personal circumstances and antecedents;
(h)all aggravating and mitigating factors; and
(i)all other relevant sentencing principles,
that the length of the sentence was unreasonable or plainly unjust.
The sentence was not merely lenient or at the lower end of the available range. It was significantly less than the sentence that was open to the primary judge on a proper exercise of her discretion.
The ground of appeal has been made out.
The residual discretion
The difference in the approach of this court between offender appeals against sentence and State appeals against sentence is explicable by the purpose underpinning each category of appeal. Offender appeals are concerned with the correction of error in the particular case. State appeals are concerned with establishing principles for the guidance of sentencing judges. See Green v The Queen;[16] CMB v Attorney‑General (NSW).[17]
[16] Green v The Queen [2011] HCA 49; (2011) 244 CLR 462 [1] (French CJ, Crennan & Kiefel JJ).
[17] CMB v Attorney‑General (NSW) [2015] HCA 9; (2015) 256 CLR 346 [55] (Kiefel, Bell & Keane JJ).
If this court is to allow a State appeal against sentence and to impose a heavier sentence on the offender, the State must establish two matters. First, the State must make out an appellable error in the exercise by the sentencing judge of his or her discretion. Secondly, the State must negate any reason why the residual discretion of this court under s 31(4) of the Criminal Appeals Act 2004 (WA) not to interfere should be exercised.
In the present case, there is no basis for invoking the residual discretion. As we have mentioned, the sentence imposed by the primary judge was substantially less than the sentence open on a proper exercise of the sentencing discretion. Appellable error has been clearly established. This court's intervention is necessary to ensure that proper sentencing standards are maintained for the relevant offence. The findings we have made based on the additional evidence admitted in the appeal do not justify, either alone or in combination with any other facts and circumstances, invoking the residual discretion.
The outcome of the appeal and the resentencing of the respondent
We would allow the appeal.
The primary judge's sentencing decision, including the sentence imposed by her Honour, should be set aside.
This court has the material necessary to resentence the respondent.
At the hearing of the appeal, counsel for the respondent informed the court that there were facts or circumstances relating to the respondent which had arisen since he was sentenced by her Honour and which should be taken into account in any resentencing.
The first issue was that the respondent's father is dying and he wishes to have his son released from custody before he passes away (appeal ts 29). We accept that this fact is a relevant aspect of the respondent's personal circumstances.
The second issue was that, according to counsel for the respondent, as a result of the State's appeal against sentence the respondent has remained classified as a medium security prisoner in Acacia Prison and has not been permitted to undertake programmes that must be completed before he will be released on parole. It was submitted that, as a medium security prisoner, the respondent has been held in more onerous conditions in custody than would have been the case had he been classified as a minimum security prisoner (appeal ts 29 ‑ 30).
The court ordered the parties to make enquiries and inform the court about the impact of the State's appeal against sentence upon the respondent's ability to undertake programmes and upon his continuing classification as a medium security prisoner.
The information put before the court by the parties reveals that:
(a)There is a general lack of resources within the prison system which has resulted in a backlog of treatment assessments for prisoners. The backlog is a State‑wide issue. It exists regardless of a prisoner's security classification level or location. The triaging and prioritisation process for treatment assessments is governed by internal policies and procedures within the Department of Justice (Corrective Services), and focusses primarily on each prisoner's earliest eligibility date for parole and the date on which each prisoner will complete serving his or her sentence.
(b)The fact that the respondent is the subject of a pending State appeal does have an impact on the respondent's security classification level. The relevant policy which governs a prisoner's security rating is set out in a document entitled 'Commissioner's Operating Policy and Procedure' issued by the Department of Justice (Corrective Services). Clause 4.3.2 of the document states that a prisoner who is the subject of a State or Commonwealth appeal shall not be rated as lower than medium security unless 'there is sufficient written justification in the assessments to rate the prisoner as minimum security'. It appears that cl 4.3.2 is based upon the policy consideration that on a State appeal against sentence a prisoner's sentence may be increased and that prospect has security and disciplinary considerations that are not present in an offender appeal against conviction or sentence where the only realistic prospect is that, if the appeal is allowed, a conviction will be set aside or a sentence will be reduced.
(c)A prisoner's security classification level is not a relevant factor in the triaging and prioritisation process for treatment assessments. Further, the fact that a prisoner is the subject of a pending State appeal does not have any impact on the timing or availability of treatment assessments. Consequently, the respondent's security rating has not delayed his treatment assessment.
(d)The availability of rehabilitative programmes may vary between prison locations. However, none of the programmes currently facilitated by the Department of Justice (Corrective Services) is restricted to minimum security prisons. A prisoner's security classification level is therefore unlikely to contribute to any delays in accessing rehabilitative programmes.
We have taken into account, in exercising the sentencing discretion afresh, all of the information that was before the primary judge; the findings we have made in relation to the additional evidence admitted in the appeal; the facts and circumstances relating to the approaching death of the respondent's father and the respondent's loss of the chance, while the State appeal has been pending, of his security rating being lowered to minimum security; and the submissions made by counsel for the State and counsel for the respondent in the appeal.
Like her Honour, we would allow a discount of 25%, pursuant to s 9AA of the Sentencing Act, on the head sentence we would otherwise have imposed for the offence, on account of the plea of guilty. We would also reduce the sentence we would otherwise have imposed for the offence to reflect the other mitigating factors to which we have referred in considering the ground of appeal. We would further reduce the sentence we would otherwise have imposed for the offence to recognise the facts and circumstances relating to the approaching death of the respondent's father and the respondent's loss of the chance, while the State appeal has been pending, of his security rating being lowered to minimum security.
We would resentence the respondent to 4 years 9 months' immediate imprisonment. The new sentence is backdated to 7 September 2023. The respondent remains eligible for parole. He will be eligible to be considered for release on parole when he has served 2 years 9 months in custody calculated from 7 September 2023. The violence restraining order and the reportable offender (community protection) order made by the primary judge are not disturbed.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
ET
Associate to the Honourable President Buss
4 NOVEMBER 2024
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