The State of Western Australia v Pereira
[2023] WASCA 162
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: THE STATE OF WESTERN AUSTRALIA -v- PEREIRA [2023] WASCA 162
CORAM: BUSS P
MAZZA JA
VANDONGEN JA
HEARD: 26 OCTOBER 2023
DELIVERED : 15 NOVEMBER 2023
FILE NO/S: CACR 85 of 2023
BETWEEN: THE STATE OF WESTERN AUSTRALIA
Appellant
AND
FLAVIANO LEONG PEREIRA
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram: PRIOR DCJ
File Number : IND 1048 of 2022
Catchwords:
Criminal law - State appeal against sentence - Whether sentences imposed were unreasonable or plainly unjust - Whether respondent should be resentenced
Legislation:
Criminal Appeals Act 2004 (WA), s 31(4)
Criminal Code (WA), s 323, s 325
Result:
Appeal allowed
Respondent resentenced
Category: D
Representation:
Counsel:
| Appellant | : | G N Beggs |
| Respondent | : | C Townsend |
Solicitors:
| Appellant | : | Director of Public Prosecutions (WA) |
| Respondent | : | Perrella Legal |
Case(s) referred to in decision(s):
C v The State of Western Australia [2006] WASCA 261
CMB v Attorney‑General (NSW) [2015] HCA 9; (2015) 256 CLR 346
Green v The Queen [2011] HCA 49; (2011) 244 CLR 462
Kabambi v The State of Western Australia [2019] WASCA 44
Munda v Western Australia [2013] HCA 38; (2013) 249 CLR 600
Musgrave v The State of Western Australia [2021] WASCA 67; (2021) 289 A Crim R 17
The State of Western Australia v Akizuki [2008] WASCA 267; (2008) 192 A Crim R 373
The State of Western Australia v Egeland [2018] WASCA 228; (2018) 276 A Crim R 77
The State of Western Australia v HNU [2023] WASCA 6
The State of Western Australia v Hussian [2020] WASCA 186
The State of Western Australia v Rayapen [2023] WASCA 55
The State of Western Australia v Vartolo [2015] WASCA 53
JUDGMENT OF THE COURT:
Introduction
Just after midnight on 20 September 2021, two women were walking together on their way to meet a friend at his home in North Fremantle. What they did not realise was that the respondent had been following them in his car, and he was tracking their movements. After the women had made their way across the Fremantle Traffic Bridge, they approached an intersection. The respondent, who by this stage had parked his car and was standing in the shadows of a side street, ran up and grabbed both women from behind. When he did that, the respondent penetrated both women's vaginas through their clothes using his fingers, and simultaneously touched their bottoms or anuses.
The respondent was subsequently charged with four sexual offences. He entered pleas of not guilty and, after a trial in the District Court before a jury, he was convicted of two counts of sexual penetration without consent, contrary to s 325 of the Criminal Code (WA) (Code), and two counts of indecent assault, contrary to s 323 of the Code.
On 28 June 2023 the respondent was sentenced to 14 months' immediate imprisonment for each count of sexual penetration without consent (counts 1 and 3), and 6 months' immediate imprisonment for each count of indecent assault (counts 2 and 4). The sentence of 14 months' imprisonment imposed for count 3 was ordered to be served cumulatively on the sentence that was imposed for count 1. The sentences of 6 months' imprisonment were ordered to be served concurrently with all other sentences. The result was that the respondent was required to serve a total effective sentence of 2 years 4 months' immediate imprisonment. The total effective sentence was backdated to 13 November 2022 to take account of time spent in custody on remand.
The State appeals against sentence, contending that the sentences of 14 months' immediate imprisonment for the two offences of sexual penetration without consent were manifestly inadequate. The State also complains that the total effective sentence of 2 years 4 months' immediate imprisonment infringed the first limb of the totality principle. On 12 September 2023, leave to appeal was granted.
Grounds of appeal
The State relies on two grounds of appeal, which are in the following terms:
1. The sentencing judge erred in law by imposing individual sentences in relation to counts (1) and (3), offences of sexual penetration without consent, that were so inadequate as to manifest error, having regard to:
(a)the maximum penalty for the offences;
(b)the serious nature of the offences and the circumstances in which they were committed;
(c) the need for the sentences to adequately reflect general and personal deterrence, as well as appropriate punishment for offending of this nature;
(d) the personal circumstances of the respondent; and
(e)the requirement that the sentences be consistent with the standards of sentencing customarily observed for offending of this nature.
2. The sentencing judge erred in law by imposing a total effective sentence of two years four months' imprisonment that infringed the first limb of the totality principle.
The facts
As we have mentioned, the respondent was convicted after trial. The prosecution relied on the evidence of the two women, together with CCTV footage that was captured on various cameras situated in the Fremantle and North Fremantle areas. Although the acts the subject of the counts cannot be seen on the CCTV footage, the respondent's approach to the victims and their spontaneous reaction to what had been done to them can be clearly seen and heard. So too, the respondent's flight from the scene. The prosecution also relied on what the respondent said in a video record of interview that was conducted with police on 1 October 2021. In that interview the respondent admitted slapping both women on their bottoms, but he denied that he had sexually penetrated either of them.
The respondent's case was that the evidence that had been given by both women was unreliable and inaccurate, and that it should not be accepted. Defence counsel cross‑examined both women with a view to demonstrating that they had been affected by alcohol, had poor memories, and that they had unintentionally put ideas in each other's minds when they spoke to each other after the incident.
The following summary of the facts is taken from the trial judge's unchallenged findings made after trial.
Just after midnight on Monday, 20 September 2021, the two victims of the respondent's crimes were walking along Queen Victoria Street in Fremantle. They were making their way towards the Fremantle Traffic Bridge, with the intention of walking to a friend's house in North Fremantle. At that time, the respondent was following the women, while driving his car along Queen Victoria Street. As the respondent drove past the two women, he conducted a loop of some nearby parkland, then drove across the bridge and headed towards North Fremantle.
After the respondent had crossed the bridge, he made his way to a side street that was perpendicular to Queen Victoria Street, and parked his car. He then got out of his car and waited at the intersection of the side street and Queen Victoria Street for the two women as they walked across the bridge towards North Fremantle, in the respondent's general direction. When the women were roughly parallel to the respondent's position in the shadows of the side street, he ran across the road and up behind the women. The first time the women became aware of the respondent was when, using his hands, he simultaneously grabbed them both from behind. Both women felt a finger force parts of their clothing into their vaginas. They also felt a hand or fingers touch their bottoms or their anuses.
The women immediately screamed in shock and the respondent ran back to where his car was parked, before driving away. As we have mentioned, the incident, including its lead up, was captured on CCTV footage taken from various nearby cameras.
On 1 October 2021, the respondent was arrested, and he participated in an electronic record of interview. In that interview, the respondent admitted that he had touched both victim's bottoms without their consent, but he denied that he had penetrated their vaginas.
The respondent's personal circumstances
The respondent was 39 years of age at the time he was sentenced. He was born in East Timor, to a large family. When the respondent was two years of age, his family moved to Portugal, where they stayed until 1996, when he was around 10 years old. His family then moved to Australia. The move was initially difficult for the respondent, and he was teased at school, but otherwise he generally had a positive upbringing.
The respondent's father passed away from bowel cancer in 1995, and the sentencing judge found that his father's death continued to affect the respondent more than 20 years later.
The respondent lived in Sydney for some time, where he ran a pressure‑cleaning business. However, the business ended because of COVID‑19 restrictions. While he was living in Sydney, the respondent met his partner, and, at the time of the offending, the two had been in a relationship for around seven years. The relationship was reasonably strong, although there had been some difficulties. In the time leading up to the offending the respondent had moved to Western Australia to work on a fly‑in/fly‑out (FIFO) basis, while his partner remained in Sydney. At the time of sentencing, the respondent's partner remained supportive of the respondent, notwithstanding his offending.
After completing year 12, the respondent had been continuously employed as an adult, first as a carpentry apprentice, then in construction and mining, before finally working on a FIFO basis. At some point prior to sentencing, the respondent lost his job, most likely because of the publicity about his charges and the fact that he had been convicted. The sentencing judge accepted that it would be very difficult, if not impossible, for the respondent to obtain work in the FIFO or construction and mining industries in the future.
At the time of sentencing, the respondent had attended two sessions of therapy with a psychologist. We note that he had, and has, no diagnosed mental or physical health issues. He occasionally used illicit drugs and had recently come to the view that his consumption of alcohol had been a problem for him.
The respondent had no criminal record. The author of a psychological report that was before the sentencing judge opined that the offending behaviour was primarily related to the fact that the respondent had consumed ecstasy earlier that day, and that the offending appeared to be 'a one‑off action which was an aberration of character'.[1]
[1] Psychological report of Dr Watts, dated 21 June 2023 [38].
The sentencing judge received several character references from members of the respondent's family, as well as references from his friends and former colleagues. His Honour noted that the references suggested that the respondent was kind, supportive of others, and a trustworthy person. The sentencing judge also referred to the fact that the authors of the references considered the respondent's offending to be out of character, which his Honour concluded was 'a fair comment, given what I've said about your background'.[2]
[2] ts 249.
His Honour also noted that authors of the references had said that the respondent was remorseful for his offending. However, the sentencing judge also said that it was not clear to him whether they understood exactly what the respondent had been convicted of, or the impact of the offending on the victims.
Victim impact statements
Both women who were attacked by the respondent wrote victim impact statements, which were taken into account by the sentencing judge. His Honour found that the respondent's conduct had left them anxious, traumatised, fearful and withdrawn.
One of the women said that she felt completely violated, and that she had been left unable to sleep or eat properly. She also struggled to be intimate with her partner and to show affection in a relationship. Since the incident, she had avoided being alone but had also not been able to attend social events, and her concentration at work had diminished to such an extent that she considered changing work. She struggled to connect and speak with her own family members. She has had difficulty in trusting people, and felt robbed of her independence. Understandably, she did not feel safe in public places.
The other woman spoke about becoming extremely scared, anxious, stressed, and feeling violated. Her academic performance at university had declined, she had failed several units, and she was unable to qualify for the honours program in her degree because she lost motivation. Unsurprisingly, she experienced feelings of shame, guilt, and self‑blame. She had seen a psychologist and had medical appointments because of what occurred, which had had a financial impact on her.
Psychological report
At sentencing, the respondent relied on a psychological report authored by Dr Phil Watts, dated 21 June 2023. In that report, Dr Watts noted that the respondent did not present as having any major signs of mental illness, but he noted that there was some degree of anxiety in his description and presentation, likely consistent with an anxiety disorder. He also said that psychological testing indicated that the respondent is 'likely to be of average to low‑average intellectual ability … a concrete thinker with limited insight'.[3]
[3] Psychological report of Dr Watts, dated 21 June 2023 [30].
In his report, Dr Watts set out the respondent's explanation for his offending behaviour in the following terms:[4]
According to Mr Pereira, on the night in question he had taken an ecstasy tablet. He was not a regular drug user and taking the tablet was intended to be fun, but turned very quickly into something more difficult. He reported that went (sic) off driving around Fremantle, said that he went looking for a nightclub to go to but everything in Fremantle seemed to be closing as it was late. While driving around he saw the 2 women walking.
Mr Pereira indicated that he has a basic memory of what transpired in the lead up to the offence, but felt quite "out of it". He said that he had a reaction to the pill, coupled with a single glass of alcohol, and it had made him feel very alive and very alert with lots of energy. He later believes that this impacted his judgement and he does (sic) have much memory of the event.
The version provided by Mr Pereira was similar to what I saw on the video Record of Interview and on the Statement of Material Facts. The essential elements in why the offence took place were that due to some of the difficulties with childhood it is difficult for him to seek help from his parents or other people. He said that in the lead-up he had been feeling somewhat 'down' and he had not been able to go to Sydney to see his partner due to the Covid lockdown. He said that the tablet he had taken seemed to have altered his perceptions and reactions and, as indicated, he parked his car, walked up behind the two women and he physically touched them. He is not able to recall what he was thinking when he did it.
Interestingly, he reports no history of sexual abuse, does not report past desires to commit such behaviour, is not describing any abnormal sexual interests, and the situation was largely spontaneous. Mr Pereira does not report any issues with porn addiction, although he indicated the use of porn when on the construction sites. Therefore, I find no evidence of any sexual pathology or impulse problems.
[4] Psychological report of Dr Watts, dated 21 June 2023 [23] - [26].
Ultimately, Dr Watts reached the following conclusion:[5]
From a clinical point of view there were no particular elements I can identify as particular risks, other than the one-off occasion of using ecstasy. The offence appears to have been a one-off action which was an aberration of character. As indicated earlier, Mr Pereira did show some anxiety around the time of the first assessment and the offence occurred in the context of a rather stressful period due to Covid. There is no evidence of current anxiety. In simple terms, I would find him to be low risk of reoffending based on his clinical assessment. I do not see that any particular course or programme will be of benefit to him although individual therapy may help him understand his motivations around substances.
[5] Psychological report of Dr Watts, dated 21 June 2023 [38].
Sentencing remarks
We have already set out the sentencing judge's findings of fact, and his findings about the respondent's personal circumstances. After making these findings, his Honour identified the aggravating and mitigating factors, before he then made various findings about the circumstances in which the offences had been committed.
His Honour found that the offending was premeditated. In that regard, he concluded that the respondent had followed and observed both women for a period of time leading up to the offending, and that he had 'targeted'[6] them.
[6] ts 254.
The sentencing judge appeared to accept a submission, made by the prosecutor, that the fact the respondent offended against two women was an aggravating factor. No complaint is made about this aspect of his Honour's sentencing remarks. In any event, his Honour found that the offences were committed very quickly and almost simultaneously as the two women were walking next to each other, and he noted that there were two separate victims of the respondent's behaviour.
Having considered the contents of the two victim impact statements, his Honour noted that there were some 'significant mitigating factors' in the respondent's case,[7] including that the respondent had made admissions in his record of interview to having assaulted, and possibly having indecently assaulted, the two women. He also referred to the fact that the respondent had made some formal admissions at the trial, which reduced the length of the trial, and to the fact that the respondent was 'now genuinely remorseful for [his] offending behaviour' and had 'some insight'.[8] His Honour was convinced that the respondent was remorseful in light of, among the other materials presented, the character references that were relied on by the respondent at the sentencing hearing. However, his Honour also noted that he was not sure whether the respondent understood the impact of his offending on the victims.
[7] ts 251.
[8] ts 251.
The sentencing judge noted that the respondent did not have any criminal record, and that the offending behaviour was 'totally out of character'[9] and 'isolated behaviour'.[10] He was also prepared to accept that the respondent had taken some steps towards rehabilitation and that, having regard to his religious faith and the evident support of his family and friends, he presented as a low risk of re-offending. His Honour also had regard to Dr Watt's opinion to this effect, which was based on his clinical assessment.
[9] ts 252.
[10] ts 255.
In relation to the respondent's claim that he had been affected by his earlier consumption of ecstasy and alcohol, his Honour accepted that it may have impacted on his judgment. However, the sentencing judge also said that it may not have had much impact on the respondent's judgment because of the premeditated nature of his behaviour.
His Honour noted that the offences were committed on two young women, who were completely unknown to the respondent, and who were walking together at night in a public place, as they were entitled to do. He said that they would have had an expectation that they were relatively safe in what they were doing, namely walking together to a friend's house in North Fremantle. However, he also mentioned that the offending 'did not involve skin on skin touching' and said that this was 'another unique factor in this case'.[11] He said that:[12]
These penetrations were touching the victim's clothes they were wearing, and the same with the indecent assault. So touching their genital organs, their vaginas, and touching their backsides or anuses but outside their clothing.
[11] ts 254.
[12] ts 254.
In his plea in mitigation, counsel for the respondent told the sentencing judge that the respondent's instructions were that when he parked his car in the side street, got out, and waited for the two women, he initially intended to just talk to them. Counsel explained that when the women walked past him, and he then walked out of the side street, he had a feeling that it was not a 'good idea' to talk to them and so he then decided to 'play a prank … to touch them on the arse'.[13] On that basis, counsel submitted that the respondent's behaviour was not sexually motivated.
[13] ts 222.
The sentencing judge specifically rejected the respondent's suggestion that initially he only intended to talk to the two women. However, in relation to the proposition that the offending was not sexually motivated, his Honour said:[14]
Now, you say your offending was carrying out a joke, not sexually motivated. That's what Mr Perrella, your counsel, has said on your behalf. And in my view, I don't think there's much difference in seriousness, whether it was a joke, or whether it was sexually motivated. But if it was a joke, it was a one-sided joke.
These young women, both of them, were not part of your joke. You had never met them or communicated with them before. It was serious behaviour what you did as part of the joke, and therefore I can only describe it as a disgusting joke.
You immediately ran off afterwards. You got to your car and left. So the victims didn't laugh at your behaviour, or laugh with you, at what you thought it was a joke. They immediately screamed, and as I said, felt violated, went inside the Mojos Bar which was being shut down by the staff, sought assistance, called the police, and they made immediate complaints to the police.
[14] ts 255.
His Honour then imposed the sentences that we have referred to earlier in these reasons. In relation to both counts 1 and 3, the offences of sexual penetration without consent, sentences of 14 months' imprisonment were imposed. In relation to counts 2 and 4, the offences of indecent assault, sentences of 6 months' imprisonment were imposed. An order was made that the sentence imposed for count 3 be served cumulatively on the sentence imposed for count 1, and that the other sentences were to be served concurrently. The result was that the respondent was sentenced to serve a total effective sentence of 28 months' imprisonment. That sentence was backdated to commence on 13 November 2022, to take into account periods that the respondent had spent in custody.
The sentencing judge rejected a submission made on behalf of the respondent that any sentence of imprisonment should be suspended. After reconsidering all the same matters that were relevant to his decision to impose a term of imprisonment, his Honour concluded that it was inappropriate to order that the terms of imprisonment be suspended. In that regard he said:[15]
this was significantly serious offending. As I've said, at the lower end of offending, and unique in terms of sexual penetrations. But also what you did, albeit momentarily, in the circumstances has had and will have, in my view, a significant impact on the two victims.
[15] ts 257.
Before completing our summary of his Honour's sentencing remarks, one further matter should be noted. At the beginning of the sentencing judge's remarks his Honour said that the maximum penalty for an offence of sexual penetration without consent was 10 years' imprisonment, and that the maximum penalty for an offence of indecent assault was 5 years' imprisonment. However, and as the respondent's counsel pointed out to his Honour after sentence had been imposed, the maximum penalty for an offence of sexual penetration without consent was in fact 14 years' imprisonment.
When the respondent's counsel drew the sentencing judge's attention to the correct maximum penalty, his Honour corrected himself but said that it would not increase the sentence because the offending was 'unique factually',[16] noting that there were no decisions of this court that were remotely similar.
[16] ts 258.
The State does not suggest that his Honour's initial erroneous understanding about the maximum penalty for an offence of sexual penetration without consent amounted to, or that it contributed to, any express error in the exercise of his sentencing discretion.
The merits of grounds 1 and 2
It is convenient to deal with both grounds of appeal at the same time. This is because both grounds assert inferred error.
The principles to be applied in the context of grounds of appeal in which the State asserts that error should be inferred from a resulting sentence are well established. Those principles, which need not be repeated, were comprehensively summarised in The State of Western Australia v Hussian[17] and, more recently in the context of sexual offences, in The State of Western Australia v HNU.[18] It is sufficient to once again observe that in determining whether an individual sentence is manifestly inadequate, the court is required to examine it in light of the prescribed maximum penalty, the standards of sentencing customarily observed in relation to the relevant offence, the place that the offending occupies on the scale of seriousness for offences of the type in question, and the offenders' personal circumstances. Those considerations are not dissimilar to the factors that must be taken into account in determining whether a total effective sentence imposed on an offender who has committed multiple offences infringes the first limb of the totality principle. In that context the question is whether a total effective sentence bears a proper relationship to the overall criminality involved in all the offences and after having regard to all relevant circumstances, including those referable to the offender personally, as well as the total effective sentences imposed in comparable cases.
[17] The State of Western Australia v Hussian [2020] WASCA 186 [88] ‑ [97]; [132] - [134].
[18] The State of Western Australia v HNU [2023] WASCA 6 [59] - [64].
It must always be borne in mind that the issue for an appellate court is not whether it would have exercised the primary sentencing discretion differently. The critical question is whether a sentence, or a total effective sentence, is unreasonable or plainly unjust. Further, in the context of a State appeal against sentence, as a majority in the High Court in Green v The Queen[19] explained, the main purpose of prosecution appeals against sentence is to lay down principles for the governance and guidance of courts in sentencing convicted persons.
[19] Green v The Queen [2011] HCA 49; (2011) 244 CLR 462 [1].
As we have already mentioned, the maximum penalty for an offence of sexual penetration without consent, contrary to s 325 of the Code, is 14 years' imprisonment. For an offence of unlawful and indecent assault, contrary to s 323 of the Code, the maximum penalty is 5 years' imprisonment.
It is recognised that there is no tariff for sexual offences. This is because offences of that nature are committed in a very wide range of circumstances, and by offenders with diverse personal circumstances. It is also important to observe that there is no hierarchy of sexual offending.[20] This is why, for example, a proposition stated at a high level of generality that penile-vaginal sexual penetration without consent is inherently more serious than digital penetration was rejected in Musgrave v The State of Western Australia.[21] The seriousness of a sexual offence is determined by the circumstances peculiar to each individual offence.
[20] C v The State of Western Australia [2006] WASCA 261 [34] - [35].
[21] Musgrave v The State of Western Australia [2021] WASCA 67; (2021) 289 A Crim R 17.
Cognisant of the limitations inherent in conducting an analysis of sentences imposed in other broadly comparable cases, the State referred in written submissions to a relatively small number of previously decided cases in support of its contention that the sentencing judge's discretion miscarried. The respondent, on the other hand, did not refer to any other cases and was content to rely on a submission that the offending in the cases identified by the State was objectively more serious than the respondent's offending conduct.
The first case that was referred to by the State was The State of Western Australia v Rayapen.[22] In that case, the respondent, who was 24 years of age at the time of the offences, was convicted after a late plea of guilty of one count of aggravated indecent assault and one count of sexual penetration without consent. In that case, the respondent sexually and indecently assaulted a 21‑year‑old woman as she lay in her bed in a unit at Rottnest Island, where she had been celebrating the end of her examinations. The respondent admitted that he had squeezed the victim's breast, causing her pain and bruising, and that he had penetrated her vagina with his fingers. The victim did not consent to any of the physical contact, she physically resisted him, and she said 'no' a number of times both before and after he penetrated her vagina. The respondent only desisted when the victim repeatedly pushed on his throat with her hand. After a successful State appeal, the respondent was sentenced to a term of 3 years and 3 months' immediate imprisonment for the offence of sexual penetration without consent. He was also sentenced to a term of 12 months' immediate imprisonment for the offence of indecent assault, which was to be served concurrently. The respondent in that case was remorseful, had evidence of previous and continuing good works, had taken steps towards rehabilitation, and presented a low risk of reoffending.
[22] The State of Western Australia v Rayapen [2023] WASCA 55.
In Musgrave, the complainant was working in a reasonably remote part of rural Western Australia at a tavern that was owned by the appellant's parents. Early in the morning of 1 January 2018, after the complainant had gone to bed, the 23‑year‑old appellant convinced the complainant to allow him to sleep in her room. The appellant was drunk at the time. In the morning, the complainant awoke to find the appellant in her bed. He was fondling her breasts and his fingers were inserted into her vagina. The complainant tried to push the appellant away before she then managed to leave her room. Upon being found guilty after trial, the appellant was sentenced to 6 months' immediate imprisonment for unlawfully and indecently assaulting the complainant, and he was also sentenced to 3 years and 6 months' immediate imprisonment for an offence of sexual penetration without consent. Those sentences were ordered to be served concurrently, with the result that the appellant was required to serve a total effective sentence of 3 years 6 months' immediate imprisonment. The appellant's application for leave to appeal against sentence was refused and his appeal was dismissed.
The State also referred to The State of Western Australia v Vartolo.[23] In that case, the complainant's boyfriend went out drinking in Northbridge, leaving the complainant at their home. He returned in the early hours of the morning in company with the respondent, who was 25 years old and a stranger to the complainant. After the complainant's boyfriend fell asleep in the bathroom, the respondent entered the complainant's bedroom, where she lay sleeping on a bed. He then took off all his clothes, lay down beside her, touched her breasts, and penetrated her vagina with his fingers. The respondent then moved on top of her and engaged in sexual intercourse. When she awoke, the complainant mistakenly believed that the respondent was her boyfriend. Once she realised the respondent in was in fact a stranger, she pushed him off and left the room to find her boyfriend. The respondent pleaded guilty to two offences of sexual penetration without consent, and was sentenced to a total effective sentence of 2 years' immediate imprisonment for the two counts. After allowing the State's appeal against sentence, this court resentenced the respondent to a total effective sentence of 3 years and 6 months' immediate imprisonment.
[23] The State of Western Australia v Vartolo [2015] WASCA 53.
These cases are of very limited assistance. Neither the dismissal of an appeal based on an allegation that error should be implied from a resultant sentence, nor a sentence imposed after an appeal against sentence has been allowed, fix the upper or lower limit of a permissible range of sentences.[24] Further, each case referred to by the State involved offences of digital penetration (although Vartolo also included an offence of penile penetration). Accordingly, in considering those cases care must be taken to guard against an approach that assumes the existence of a hierarchy of sexual penetration offences.[25] In that regard, in HNU[26] it was said that:
to only select cases involving oral penetration is to raise that circumstance to the level of being critical whereas, in truth, it is one of the factual features of the offending, amongst many. For the reasons explained in Akizuki[27] and Musgrave, offences of sexual penetration without consent should not be divided into categories defined by the nature of the penetration. It cannot be assumed that one form of sexual penetration is necessarily more, or less, serious than another. An assessment of the seriousness of an offence of sexual penetration is not governed by whether the penetration involves a penile, digital, oral or other form of penetration, but, rather, depends on all of the circumstances of the offence. Consequently, consideration of reasonably comparable cases in the present case should not proceed by reference to only cases involving oral penetration.
[24] Kabambi v The State of Western Australia [2019] WASCA 44 [21].
[25] Rayapen [238].
[26] HNU [74].
[27] The State of Western Australia v Akizuki [2008] WASCA 267; (2008) 192 A Crim R 373.
There are also obvious differences in both the circumstances of the commission of the offences that were the subject of the appeals in Rayapen, Musgrave, and Vartolo, and in the personal circumstances of the respective offenders. An important difference is the fact that in this case the respondent used violence to offend against two women who were in a public place at night, after stalking them in his car for a period of time and then lying in wait for them in a dark side street. Further, the respondent was significantly older than any of the offenders who were the subject of the three cases referred to by the State and, unlike in Rayapen and Vartolo, the respondent was found guilty after trial. Nevertheless, it must be said that the cases referred to by the State do provide some support for a conclusion that the individual sentences of 14 months' immediate imprisonment that were imposed on the respondent for counts 1 and 3, as well as the total effective sentence of 2 years and 4 months' imprisonment, were unreasonable or plainly unjust. Both the individual sentences for counts 1 and 3, and the aggregate sentence, imposed on the respondent were substantially less than the respective sentences that were ultimately imposed in Rayapen, Musgrave, and Vartolo.
In the end, however, what is important in determining whether the individual sentences for counts 1 and 3, and the aggregate sentence, are unreasonable or plainly unjust are the particular circumstances of the respondent's criminal conduct. In that regard, the offences that the respondent committed were very serious. In the very early hours of the morning, he watched and followed two women as they walked together from Fremantle on their way to meet a friend in North Fremantle. The respondent positioned himself in a side street where, staying hidden, he spied on and lay in wait for the women as they walked in his direction over the Fremantle Traffic Bridge.
In circumstances in which two women were in a public place at night and were entitled to feel safe, the respondent brazenly attacked them from behind, when they were vulnerable, and without any warning. During the attack, the respondent simultaneously penetrated both women's vaginas with his fingers, and he also touched their bottoms or anuses. The fact that the penetrations occurred through clothing, in our view, does not reduce the seriousness of the respondent's conduct. The respondent's actions were forceful, demeaning, and amounted to a serious physical violation of two separate women.
An issue arose at sentencing about whether the respondent's conduct was sexually motivated, or whether he initially wanted to just talk to his victims before he changed his mind and decided to 'play a prank' on them: to 'touch them on the arse'. Ultimately, the sentencing judge decided that it did not make any material difference whether the respondent was sexually motivated or whether he touched the two women as part of a 'one-sided joke'.[28]
[28] ts 255.
In our view, it would have been well open to the sentencing judge to have concluded that the only reasonable inference is that the respondent deliberately targeted his victims' genitalia, especially as the jury must have found that he wilfully and simultaneously touched both women in that area of their bodies. In those circumstances, it is difficult to think what other motivation the respondent might have had for what he did other than one which involved planning for and then obtaining some form of sexual gratification. In any event, whatever may have motivated the respondent, his victims would have been entitled to believe that they had been subjected to a sexually motivated attack. They were, and they were entitled to feel, terrorised, shocked, and sexually violated. As the victim impact statements demonstrate, the respondent caused significant physical, emotional, and psychological harm to both women.
At the sentencing proceedings, the word 'unique' was used several times by both counsel and his Honour to describe the circumstances in which the offences were committed. On occasions, 'unique' appeared to be used to suggest that the offending was towards the lower end of the scale of seriousness. While it may be accepted that the offences committed by the respondent were, as a matter of fact, unusual, we do not think that this reduces the seriousness of the offending. In any event, the respondent was to be sentenced for his actions. As we have explained, the respondent attacked two women who were walking together at night, after he had already followed them and then lay in wait for them in a side street. The respondent did not know either woman. During the attack, he penetrated both women's vaginas and touched their bottoms or anuses, in circumstances in which it was plain that they had not consented to any of that occurring. The respondent's conduct was shocking, humiliating, and it has had a profound impact on his two victims.
The respondent did not have the benefit of any significant mitigation. He pleaded not guilty and proceeded to trial, although he did make some admissions to police in his record of interview, and some formal admissions were made at his trial that the sentencing judge found reduced the length of the trial.
Notwithstanding his pleas of not guilty, the sentencing judge found that the respondent was genuinely remorseful for his offending behaviour. It might be thought that this finding was unduly favourable to the respondent, having regard to counsel's submissions at sentencing that the respondent had simply played a 'joke' on his victims. Further, despite his finding of remorse, the sentencing judge also said that he was not sure whether the respondent understood the impact of what he had done on his victims. As was noted in The State of Western Australia v Egeland,[29] if remorse is to be mitigating, it requires a sign of some sorrow for the impact or consequences or the potential impact or consequences of the offence. In any event, to the extent that the respondent was remorseful, it must have been experienced very late and could only properly have been given limited weight.
[29] The State of Western Australia v Egeland [2018] WASCA 228; (2018) 276 A Crim R 77 [39] (Buss P); [126] (Mazza & Mitchell JJA).
The respondent did not have any criminal history and the sentencing judge found that the offending was 'totally out of character'.[30] His Honour also accepted that the respondent had taken some steps towards rehabilitation and that he was a low risk of reoffending, having regard to his religious faith and the support he enjoyed from his friends and family. It must be said, however, that although the respondent's personal circumstances were plainly relevant, they carried comparatively less weight and considerations of personal and general deterrence assumed dominant importance.
[30] ts 251.
In our view, taking into account the maximum penalties for the offences, the very serious nature of the respondent's offending conduct, the various mitigating factors, the sentencing judge's findings in relation to the respondent's personal circumstances, and the limited guidance afforded by sentences in other broadly comparable cases, the individual sentences of 14 months' immediate imprisonment for both offences of sexual penetration without consent were unreasonable or plainly unjust. Accordingly, ground 1 has been made out. Different and significantly higher sentences should have been imposed for the offences of sexual penetration without consent.
Given our conclusion in relation to ground 1, it is unnecessary for us to reach any conclusion about ground 2. Subject to the question of whether the State has established that this court should not exercise the residual discretion to refuse an appeal by the State against a sentence imposed on a person convicted of a charge of an indictable offence, which we will deal with next, the sentencing discretion, taking into account the application of the first limb of the totality principle, must be exercised afresh.
The residual discretion
As a majority in the High Court in Green explained,[31] in the context of the Criminal Appeal Act 1912 (NSW), the main purpose of prosecution appeals against sentence is to lay down principles for the governance and guidance of courts in sentencing convicted persons. This court has a discretion under s 31(4)(a) of the Criminal Appeals Act 2004 (WA), known at the 'residual discretion', not to allow a prosecution appeal against a sentence imposed on a person convicted of a charge of an indictable offence even if it thinks that the sentence is erroneously lenient.[32] That discretion usually falls to be exercised in circumstances when the guidance that this court might otherwise provide to sentencing courts is limited, and a decision to allow a prosecution appeal will result in injustice to a convicted person who is required to respond to such an appeal.[33]
[31] Green [1].
[32] Munda v Western Australia [2013] HCA 38; (2013) 249 CLR 600.
[33] Green [1].
At the hearing of the appeal, counsel for the respondent indicated that he did not submit that the appeal should be dismissed in the exercise of the residual discretion if the court decided that either ground 1 or ground 2 were made out.[34] However, it is settled that before this court will allow a prosecution appeal against sentence and move to impose a heavier sentence on the offender, it is the State that must establish that the sentencing judge fell into appellable error, and the State must also negate any reason why the residual discretion should be exercised.[35]
[34] Appeal ts 23.
[35] CMB v Attorney‑General (NSW) [2015] HCA 9; (2015) 256 CLR 346 [54] - [57].
For the reasons we have already given, the State has established that the sentencing judge fell into appellable error. Further, we are of the view that this appeal should be allowed to maintain adequate standards of sentencing. The individual sentences that were imposed in this case fell substantially below the range of sentences that were reasonably open to the sentencing judge in the exercise of his discretion. We are also satisfied that the respondent will not suffer any injustice if the appeal is allowed and the sentencing discretion re-exercised.
Resentencing
We have the necessary information to resentence the respondent. At the hearing of the appeal, counsel informed the court that the respondent has engaged with a chaplain while he has been in custody following the trial. He also said that the respondent has attended various classes, that he has had an 'enhanced supervision status' within the custodial setting, and that his partner remains supportive.
In exercising the sentencing discretion afresh, we are of the view that the seriousness of each of the offences that were committed by the respondent were such that only imprisonment can be justified. Having taken into account the relevant statutory penalties, the circumstances of the offences, including the vulnerability of the women against whom the respondent offended, and the aggravating and mitigating factors identified by the sentencing judge, we would impose the following sentences of imprisonment:
(a)Count 1: 3 years' imprisonment
(b)Count 2: 6 months' imprisonment
(c) Count 3: 3 years' imprisonment
(d) Count 4: 6 months' imprisonment
The aggregate sentence must reflect the fact that the respondent offended against two women. However, the first limb of the totality principle must also be applied to ensure that the sentence properly reflects the overall criminality of the respondent's conduct. To achieve that, we would reduce the sentence imposed for count 3 from 3 years to 12 months, and make an order that this sentence be served cumulatively on the sentence imposed for count 1. We would also order that the sentences imposed for counts 2 and 4 be served concurrently with the sentence for count 1, having regard to the fact that both of those offences occurred simultaneously with the offences the subject of counts 1 and 3.
This means that the total sentence imposed on the respondent will be one of 4 years' imprisonment.
Having considered afresh all the facts and circumstances, as well as the relevant sentencing principles that we have already taken into account in arriving at the conclusion that the respondent should be resentenced to a total term of 4 years' imprisonment, we are of the view that it would be inappropriate to suspend any of the individual terms of imprisonment. As we have already explained, the offences that were committed by the respondent were very serious and there is little mitigation. Sentences of immediate imprisonment are the only appropriate disposition, with the result that the respondent must serve a total effective term of 4 years' immediate imprisonment.
That sentence should be backdated to commence on 13 November 2022. An order will also be made that the respondent is eligible for parole. The respondent should therefore be eligible for parole on 12 November 2024.
Orders
(a)The appeal is allowed.
(b)The sentences imposed by the District Court of Western Australia in IND 1048 of 2022 are set aside and the following sentences of immediate imprisonment are substituted:
(i)Count 1: 3 years' imprisonment.
(ii)Count 2: 6 months' imprisonment.
(iii)Count 3: 12 months' imprisonment.
(iv)Count 4: 6 months' imprisonment.
(c)The sentence imposed for count 3 is to be served cumulatively upon the sentence imposed for count 1.
(d)The sentences imposed for counts 2 and 4 are to be served concurrently with the sentence imposed for count 1.
(e)The new total effective sentence of 4 years' immediate imprisonment is backdated to 13 November 2022.
(f)The respondent is eligible for parole.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
RH
Research Associate to the Hon Justice Vandongen
15 NOVEMBER 2023
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