The State of Western Australia v Rayapen
[2023] WASCA 55
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: THE STATE OF WESTERN AUSTRALIA -v- RAYAPEN [2023] WASCA 55
CORAM: QUINLAN CJ
MAZZA JA
HALL JA
HEARD: 27 MARCH 2023
DELIVERED : 12 APRIL 2023
FILE NO: CACR 121 of 2022
BETWEEN: THE STATE OF WESTERN AUSTRALIA
Appellant
AND
LUIGI IGNACE RAYAPEN
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram: LEVY DCJ
File Number : IND 426 of 2021
Catchwords:
Criminal law – Sentencing – State appeal against sentence – Where respondent convicted of one count of aggravated indecent assault and one count of sexual penetration without consent – Total effective sentence imposed of 2 years imprisonment, wholly suspended – Late plea of guilty – Whether sentencing judge erred in finding that respondent's remorse at the highest end of remorse – Whether discount of 15% for pleas of guilty so excessive as to manifest error – Whether sentencing judge erred in suspending the terms of imprisonment – Whether individual sentence for count of sexual penetration without consent so inadequate in length as to manifest error – Whether total effective sentence infringed the first limb of the totality principle so inadequate in length as to manifest error – Resentencing of respondent
Legislation:
Criminal Code (WA), s 324, s 325
Sentencing Act 1995 (WA), s 6, s 9AA, s 76, s 81
Result:
Appeal allowed
Respondent resentenced
Category: D
Representation:
Counsel:
| Appellant | : | L M Fox SC & G N Beggs |
| Respondent | : | J Condon KC |
Solicitors:
| Appellant | : | Director of Public Prosecutions (WA) |
| Respondent | : | Holborn Lenhoff Massey |
Cases referred to in decision:
Aung v The State of Western Australia [2022] WASCA 175
Barbaro v The Queen [2012] VSCA 288; (2012) 226 A Crim R 354
Bradbury v The State of Western Australia [2020] WASCA 214
C v The State of Western Australia [2006] WASCA 261
Celani v The State of Western Australia [2021] WASCA 215
Cobiac v Liddy [1969] HCA 26; (1969) 119 CLR 257
Day v The Queen [2001] WASCA 284
Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321
Gobetti v The State of Western Australia [2017] WASCA 130
House v The King (1936) 55 CLR 499
Kabambi v The State of Western Australia [2019] WASCA 44
Lee-Kong v Brunnen [2022] WASC 150
Mehta v The State of Western Australia [2023] WASCA 24
Miorada v The State of Western Australia [2022] WASCA 143
Musgrave v The State of Western Australia [2021] WASCA 67
NI v The State of Western Australia [2020] WASCA 78
Phillips v The Queen [2012] VSCA 140
R v Kane [1974] VR 759
R v Miceli [1998] 4 VR 588
R v Osenkowski (1982) 30 SASR 212
R v Smith [2004] WASCA 44
Ryan v The Queen (2001) HCA 21 (2001) 206 CLR 267
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
The State of Western Australia v HNU [2023] WASCA 6
The State of Western Australia v Syred [2020] WASCA 185
The State of Western Australia v Vartolo [2015] WASCA 53
JUDGMENT OF THE COURT:
Introduction and overview
In the early hours of 1 July 2020, the respondent, Luigi Rayapen, sexually and indecently assaulted a 21‑year‑old woman as she lay in her bed in a unit at Rottnest Island, where she was staying as part of post‑exam celebrations. Amongst other things, Mr Rayapen squeezed the victim's breast, causing her pain and bruising, and penetrated her vagina with his fingers.
The victim was plainly not consenting to any of the physical contact by Mr Rayapen. She physically resisted him. She curled herself up into a foetal position. She said 'no' to Mr Rayapen six times: four times prior to him penetrating her vagina with his fingers and twice after he had done so. Mr Rayapen only desisted when the victim pushed on his throat with her hand.
Mr Rayapen was charged with indecent assault, aggravated indecent assault and sexual penetration without consent. He pleaded not guilty and the charges were listed for trial on 15 August 2022. On the afternoon of Sunday 14 August 2022, the day before the trial was due to commence, Mr Rayapen made an offer to plead guilty to the charges of aggravated indecent assault and sexual penetration without consent in full satisfaction of the indictment. The State accepted that offer in the public interest.
The next day, Mr Rayapen pleaded guilty to one count of aggravated indecent assault and one count of sexual penetration without consent.
On 7 December 2022, Levy DCJ sentenced Mr Rayapen to a total effective sentence, for both offences, of 2 years imprisonment, wholly suspended for a period of 2 years. In doing so, the learned sentencing judge concluded that Mr Rayapen's case justified the 'exercise of mercy'.
The State now appeals that total effective sentence. The grounds of appeal include a challenge to the sentencing judge's evaluation of Mr Rayapen's degree of remorse, the size of the discount given for Mr Rayapen's late plea of guilty, and the contention that the individual sentence for the offence of sexual penetration without consent, the total effective sentence and the decision to suspend the terms of imprisonment were unreasonable or plainly unjust.
The common theme running through all of the grounds of appeal is that the sentence imposed by the sentencing judge for the offending in this case could only be justified by exceptional circumstances and that the sentencing judge was wrong to conclude that such circumstances existed.
Counsel for Mr Rayapen accepted that the sentence imposed on Mr Rayapen was lenient. That concession was correctly made. The sentence was, indeed, remarkably lenient and could only have been justified, given the offending in this case, if there were some exceptional circumstances.
For the reasons that follow the appeal must be allowed. All of the grounds of appeal have been established. In short, there was nothing exceptional about this case sufficient to justify the sentence imposed by the learned sentencing judge. The sentence was manifestly inadequate. The justice of this case and the maintenance of proper standards of sentencing require that Mr Rayapen be resentenced by this Court.
In all of the circumstances, the appropriate sentence for both offences, is a total effective sentence of 3 years and 3 months imprisonment, to be served immediately. Mr Rayapen will be eligible for parole.
Circumstances of the offending
An agreed statement of facts was read out before the sentencing judge and the prosecution brief was tendered. What follows is largely taken from the statement of agreed facts, supplemented where appropriate by detail from the prosecution brief.
At the time of the offending Mr Rayapen was 24 years of age and was studying law at the University of Western Australia (UWA).
The victim was 21 years of age and also a university student.
On 29 June 2020, the victim went to Rottnest Island along with hundreds of other university students to celebrate the end of mid‑year exams. The victim was staying in a four‑bedroom unit with 11 other people, including a male friend of hers.
At approximately 3.00 pm on Tuesday, 30 June 2020, the victim went with her male friend to a nearby unit where other students with whom she was friends were staying. From that time, the victim stayed at that unit, socialising with others.
At approximately 11.00 pm, Mr Rayapen attended at the unit. The victim had not met him before but knew that he was a student from UWA because of the shirt that he was wearing. During the night, the victim and Mr Rayapen interacted with each other. There was, by all accounts, no flirting or sexual interaction between them.
At approximately 2.00 am on 1 July 2020, the victim went back to her unit with her male friend. Mr Rayapen tagged along with them. The victim told Mr Rayapen that he could stay in their house with them for the night, so that he would not wake up the other people in his house. In the room where the victim and her male friend were staying, there was another couple, who were on a blow‑up mattress on the floor and who were already asleep.
The victim got into her bed, which was a large bed made up of two beds pushed together. The victim was wearing her underwear, no bra and a t‑shirt and jumper. Mr Rayapen was in the bed next to her and the victim's male friend was on the other side of Mr Rayapen. The victim was tired and fell asleep straightaway. She was laying on her right side, facing the wall when she went to sleep.
The victim woke up to Mr Rayapen rolling her onto her back. Once she was on her back, he grabbed her right leg and put it over his body. He did the same with her right arm so that she was effectively hugging him. Mr Rayapen then used his hands to grope the victim's buttocks. The victim pretended to be asleep, because she thought that if Mr Rayapen realised that she was not participating, then he would just stop. The victim was trying to kick her male friend to get his attention.
Mr Rayapen then tried to kiss the victim's mouth. At this point, she told him 'no' and turned back to face the wall. While the victim was laying on her right side, Mr Rayapen moved in so that he was in a spooning position with the victim. He then put his hands up the front of the victim's jumper and started groping her breasts. He was nudging his face into her neck and moaning into her ear. He was dry humping onto her buttocks. Again, the victim tried to pretend to be asleep, thinking that Mr Rayapen would just stop.
Mr Rayapen tried again to put his hands up the victim's jumper. He told her to take the jumper off and she said 'no'. The victim crossed her arms over her chest to try and stop Mr Rayapen from getting to her breasts, but he was able to grope her again. He squeezed her left breast 'really hard' (as the victim put it), causing her pain. An examination by a doctor from the Sexual Assault Referral Centre (SARC) the following day revealed bruising to the victim's left breast. Mr Rayapen's conduct in squeezing the victim's breast, causing her pain and bruising, constituted the offence of aggravated indecent assault.
The victim pushed Mr Rayapen's hand away and again moved closer to the wall. Mr Rayapen pulled the victim back towards him and rolled her over. Mr Rayapen then started trying to take off the victim's underwear. He managed to get the right side down to about her knee, but the left side was anchored under her hip. The victim grabbed Mr Rayapen's hand and told him 'no'. Mr Rayapen started whispering to her to take her underwear off. The victim said 'no' and pulled her underwear back up again. She curled herself up into the foetal position and tucked her hands across her chest.
Mr Rayapen then positioned the victim on her left side, facing him. He had both of her legs between his legs. He put his hands into her underwear and started rubbing her vagina, including her clitoris. The victim was in disbelief and continued to pretend to be asleep, hoping that Mr Rayapen would stop. Mr Rayapen kept going, so the victim put her hand on top of his, in order to stop him. This did not stop Mr Rayapen. He continued to penetrate the victim's vagina with his fingers. Mr Rayapen's conduct in penetrating the victim's vagina with his fingers constituted the offence of sexual penetration without consent.
The victim grabbed Mr Rayapen's hand hard in order to stop him and again said 'no'. Mr Rayapen resisted her efforts to stop him. Mr Rayapen was then kissing her neck whilst still penetrating her vagina with his fingers. The victim said 'no' again, to which Mr Rayapen said something along the lines of, 'Why? You're so wet.'
The victim began pushing on Mr Rayapen's throat to stop him. He removed his fingers from her vagina and she curled up into a foetal position again. Mr Rayapen again tried to kiss the victim and she turned her head away. He started kissing and biting her face, so she again put her hand on his throat and pushed. Eventually, Mr Rayapen pulled his face away and started coughing due to the pressure on his throat. The victim turned to the wall again and Mr Rayapen got out of the bed.
Once Mr Rayapen was out of the bed, the victim rolled over and woke her male friend. She told him what Mr Rayapen had done. The victim's friend hugged her, and when Mr Rayapen came back into the room, the friend told Mr Rayapen to leave. Mr Rayapen did not listen and tried to get back into the bed. The victim also told him that he had to leave. Mr Rayapen got back into the bed anyway. This time, the victim's friend was in the middle.
Later in the morning, the friend again told Mr Rayapen to leave, and this time he did.
The next morning, the victim told a number of other students about what had happened. Later that afternoon, Mr Rayapen told the victim he was sorry for what happened the night before and that he hoped she could forgive him. The victim confronted Mr Rayapen and he made admissions.
This interaction between the victim and Mr Rayapen was described in a witness statement from another male friend of the victim. Both parties referred to different aspects of that witness' account before the sentencing judge and on appeal.
The witness said that he had met Mr Rayapen the night before and had developed a rapport with him. The witness said that the following day he said to Mr Rayapen, 'You are going to come to [the victim's] house and apologise'. He said that Mr Rayapen was very cooperative, agreeing that he needed to apologise.
While they were walking to the victim's unit, the witness described Mr Rayapen saying things such as 'We are blokes. We have urges' and 'I'll make it up to her'. He also said that, as a law student, it was worse for him to break the law than other students.
When they arrived at the victim's unit, she came outside and Mr Rayapen said to her, 'I didn't mean to do anything without your consent'. The victim responded, 'Yeah, no shit, you knew from the start that I wasn't accepting your advances'. Mr Rayapen replied, 'Yeah, I know, that's why I moved to the other side of the bed. Let me know if there is anything I can do'.
After the victim went back inside, the witness said that Mr Rayapen was crying but still saying things such as 'We are blokes. You know how it is'.
Later that afternoon, the victim was still at her unit when she saw a police vehicle drive by. She went out, flagged the vehicle down and told the police what had occurred. The police seized the victim's clothing and photographed the bedroom.
The following day, on 2 July 2020, the victim attended for a SARC exam. Photographs were taken of bruising to her buttock area and her left breast.
On 13 July 2020, the victim made a pretext call to Mr Rayapen. Again, the victim confronted Mr Rayapen and he made some admissions of wrongdoing. We will return to the pretext call shortly.
On 22 July 2020, Mr Rayapen participated in an electronic record of interview. Mr Rayapen made the following admissions: that he was at Rottnest Island at the time of the alleged offending; that he is a law student at UWA; that he was at a number of house parties on the night of the alleged offending; and that he knew the complainant and some of her friends from university. Mr Rayapen made no admissions as to any offending against the victim.
It was agreed by the parties before the sentencing judge that, other than the limited admissions made by Mr Rayapen, the electronic record of interview on 22 July 2020 was a 'no comment record of interview'. Our own consideration of the interview, and the transcript of the interview, confirms that to be generally the case. As the Court indicated to the parties at the hearing of the appeal, however, there do appear to be a limited number of times in the interview where Mr Rayapen appears to positively deny, for example, that he touched the victim in a sexual way.
Counsel for Mr Rayapen (who also appeared before the sentencing judge) submitted that she had specifically sought agreement as to the characterisation of the interview as a 'no comment' interview for the purposes of sentence in order to avoid, in effect, any dispute about the matter.[1] Given that the State did not seek to challenge that characterisation in the appeal, and given that it is clear from the interview as a whole that Mr Rayapen's intention was to exercise his right to silence in relation to any allegation of offending, it is appropriate to proceed upon that basis for the purposes of the appeal.
[1] Appeal ts 53.
Pretext call
As noted above, on 13 July 2020, the victim made a pretext call to Mr Rayapen.
Counsel for Mr Rayapen submitted to the sentencing judge that he should listen to the pretext call because it would form part of her submissions as to Mr Rayapen's remorse. Counsel later submitted that the call was 'replete with … remorse'.[2]
[2] AB 73.
The pretext call, which we have also listened to, takes place over approximately 4 minutes and 20 seconds.
Early in the call, Mr Rayapen says to the victim:[3]
The day after, I just yeah, I I saw you were really upset and I was like, 'Oh no, I've really fucked up'. And then I went to the house where George was and I spoke to him about it. And he was like, you should, you should, the first thing I should do is apologise. I thought, yeah like I will go over to like your house.
[3] AB 124. The reference to 'George' in this, and the following paragraph, is a reference to the witness referred to at [29] to [33] above.
A little later in the call the victim says to Mr Rayapen, 'So what you apologised because George told you what you did was wrong?', to which Mr Rayapen replies:
No, George was just like, '[the victim] is really upset about it' and I was like 'yeah I saw her earlier really upset ummm I don't know if I should speak to her or not'
He was like, yeah you need to speak to her and like apologise. And like he came with me, just so like, cause yeah I, like I was, I did feel, I saw you earlier like by myself and I was like 'Oh fuck'
I am so ashamed of what I've done like. Like it's not, it really isn't who I thought, like I don't think I'm a bad person. Like I feel like I am now. I don't know.
A short time later, the victim says to Mr Rayapen, 'Like I am going to be blunt like, you raped me and I'm not ok. Like, I'm not.'
Mr Rayapen does not immediately respond to this allegation. Both Mr Rayapen and the victim are silent for approximately 10 seconds, during which they both appear to be crying. Mr Rayapen eventually says 'I should have just gone home'.
The victim then says to Mr Rayapen, 'You can't do this to another girl', to which he responds 'Yeah I know. I promise you'.
Towards the end of the call Mr Rayapen again says:
I should have just gone home. I don't know why I went.
I am not that, I'm am not like that. Like I don't know, I'm not.
We will return to the sentencing judge's conclusions in relation to the pretext call. For present purposes it is sufficient to observe that, on appeal, both parties accepted that:[4]
(a)this Court was in as good a position as the sentencing judge to make an assessment of, and reach conclusions in relation to, the pretext call; and
(b)in evaluating the extent to which Mr Rayapen was remorseful, it was necessary to consider the pretext call, not in isolation, but in light of all of the circumstances.
[4] Appeal ts 13, 37.
Procedural history
Mr Rayapen was charged shortly after the interview of 22 July 2020.
Mr Rayapen pleaded not guilty and, on 12 March 2021, the charges were committed to the District Court for trial.
Prior to the matter being committed to the District Court, on 2 February 2021, the State contacted counsel for Mr Rayapen and advised that the State case was strong having regard to the disclosed evidence. The State invited counsel to make an offer to resolve the matter.
An indictment containing four charges was signed on 28 April 2021. At a trial listing hearing on 4 June 2021, the matter was set down for a five‑day trial that would commence on 15 August 2022.
On 8 August 2022, the State again wrote to counsel for Mr Rayapen enquiring whether, given the strength of the State case, the matter could be resolved.
On the afternoon of 14 August 2022, the State received a submission from counsel for Mr Rayapen to resolve the matter by way of pleas of guilty to counts 2 and 4 on the indictment, being the charges of aggravated indecent assault and sexual penetration without consent, in full satisfaction of the indictment. The State accepted that submission.
Counts 1 and 3 on the indictment, being two charges of indecent assault, were the subject of a Notice of Discontinuance dated 15 August 2022. The Notice of Discontinuance was accepted by the court on the morning of 15 August 2022, when Mr Rayapen pleaded guilty to the charges of aggravated indecent assault and sexual penetration without consent, the facts were read and the prosecution brief was tendered.
The sentencing judge adjourned the matter to enable Mr Rayapen to prepare material for sentencing. The matter was ultimately adjourned to 7 December 2022.
Victim impact statement
Prior to the resumed hearing, the sentencing judge was provided with a victim impact statement prepared by the victim dated 5 September 2022.
There are parts of the victim impact statement that the victim has requested not be published, a request that we have respected. The statement, as a whole, however, reveals the dreadful emotional, psychological, social, physical and financial effects that Mr Rayapen's offending have had on the victim. She described moving back to her family home following the offences and that, afterwards
everything was much harder to grasp, the smallest things would offend or upset me, trivial things that I previously had no issue working through. Something in me or about me was different, I felt misplaced, wrong in my childhood home. I felt distant and alien to my family because although they knew of the incident, they did not KNOW.
The victim described not previously having experienced anxiety or depression but now finding many situations, including university and work, anxiety inducing. Her workplace, in particular, caused the victim fear of Mr Rayapen walking in and her being trapped and the fear of being recognised by other people. She had to cease work for a period of time, causing her financial loss.
The victim also suffered financially as a consequence of her need to obtain psychological counselling and therapy. She said that the therapy provided her with significant help. The victim impact statement concludes by eloquently attesting, not only to the serious adverse effects that Mr Rayapen's offending had had on her, but to the victim's own strength and resilience:
Yes, I lost innocence, naivety, trust and the girl I was no longer exists. But who I am now is stronger, resilient, smart, experienced and cautious of the horrors that exist in our society.
Material presented in mitigation
Mr Rayapen's counsel presented both written and oral submissions in mitigation of sentence. In addition, the sentencing judge was provided with the following written material:
(a)six pages of sample messages and posts from Facebook, relating to statements made to, or about, Mr Rayapen;
(b)a report of Dr Dharjinder Rooprai, psychiatrist, dated 7 November 2022;
(c)a report of Ms Helen Fowler, psychologist, dated 7 November 2022; and
(d)a number of character references, including from:
(i)the partner of Mr Rayapen's brother (undated);
(ii)a senior mental health practitioner who is a friend of Mr Rayapen's family dated 7 October 2022;
(iii)Mr Rayapen's romantic partner (undated);
(iv)a clinical psychologist who was a work colleague of Mr Rayapen's father dated 7 October 2022;
(v)a lawyer who is a friend of Mr Rayapen's family (undated);
(vi)Mr Rayapen's parish priest dated 16 October 2022;
(vii)Mr Rayapen's parents (undated);
(viii)Mr Rayapen's brother (undated);
(ix)a registered nurse who is a friend of Mr Rayapen (undated); and
(x)a mental health clinical nurse consultant who is a friend of Mr Rayapen's family (undated).
Mr Rayapen's personal circumstances
Mr Rayapen was 26 years of age at the time of sentence. He was born in Italy where his family lived until he was six years old. Mr Rayapen has one sibling, a brother who is two years his junior.
Mr Rayapen was raised in a loving and caring family. He did not suffer any severe physical punishment, trauma, abuse or adversity during childhood. His family moved to England when he was six years of age, where he attended school up to year 10 equivalent. Mr Rayapen did well at school.
The family moved to Australia when Mr Rayapen was 17 years old and he completed his schooling here, completing ATAR and achieving an ATAR score of 84. He went on to complete a Bachelor of Commerce and a law degree from UWA. As referred to above, Mr Rayapen was a law student at the time of the offending.
While studying law, Mr Rayapen was elected for an executive position on the Blackstone Law Students' Society and was responsible for organising social events. He volunteered with the Law Society at a community legal centre, where he was exposed to work involving criminal injuries compensation, including in relation to victims of sexual offending.
Mr Rayapen had no previous criminal convictions.
Mr Rayapen had no diagnosed history of mental health problems, addictions or criminality within his extended family. Prior to the offending he had no history of mental health problems and had never seen a mental health professional. Mr Rayapen started drinking alcohol when he was 18 years of age and had a variable drinking pattern, although during his university years he would get drunk on a regular basis. Other than some youthful experimentation, he did not have a history of illicit drug use.
After the offending, as we will come to in the context of the reports tendered at the sentencing hearing, Mr Rayapen saw a psychologist on a number of occasions, before moving to Melbourne. He did not see any mental health professional there, although in November 2022 he was taking an antidepressant medication which he had been taking since the offending. He re‑engaged with a counsellor when he returned to Perth in July 2022.
Mr Rayapen described having a normal sexual development and, at the time of sentencing, was in a relationship with a young woman that he had met in Melbourne.
Mr Rayapen said that he moved to Melbourne to complete his law degree remotely as a result of media attention, including social media posts and messages in relation to his (then) alleged offending. We now turn to that social media activity.
Facebook posts and messages
As part of his plea in mitigation, Mr Rayapen relied upon 'extra‑curial punishment suffered by dint of widespread adverse publicity [and] social media posts on [a] UWA site'. Sample messages and posts from Facebook were provided to the sentencing judge. The sample was selected by those representing Mr Rayapen. It may therefore be accepted that the sample accurately reflects the adverse nature of the social media activity.
The sentencing judge referred in his sentencing remarks to this activity as a 'social media campaign'. A passing knowledge of the quality of commentary on social media (or lack thereof) rather suggests that to refer to the social media posts as a 'campaign' is something of an overstatement.
The first page of the material provided consists of three direct messages on Facebook messenger from an individual (who was not Mr Rayapen's 'friend' on Facebook). The first, sent on 22 July 2020 (the day of Mr Rayapen's interview with police), contains an off‑colour joke associating Mr Rayapen's surname with 'rape'. The second and third messages (sent on 21 August 2020, after Mr Rayapen was charged) are distinctly more menacing. They are both abusive and threatening. Those messages reflect the kind of deplorable abuse that often gives social media a bad name.
The remaining pages of the material tendered to the sentencing judge consist of a post to what appears to be a Facebook 'group', called 'Confessions at UWA'. The post itself is a criticism of the university for allowing 'a fucking rapist to continue his enrolment'. The post does not name Mr Rayapen.
A number of comments on the post do, however, identify Mr Rayapen as the subject of the post. Two of them do so by attaching a screen shot of what appears to be a mainstream media article about Mr Rayapen, including a photograph of him. Aside from using the word 'rapist', most of the messages are directed to the university for its alleged failures rather than being directed at Mr Rayapen. There are an equal number of comments counselling against 'being vigilantes' and prejudging the matter.
Report of Dr Rooprai
Dr Rooprai is a consultant psychiatrist who was engaged by Mr Rayapen's solicitors to prepare an independent report as to his mental state and, if required, any treatment needs. For that purpose Dr Rooprai interviewed Mr Rayapen for 1.25 hours.
Dr Rooprai said that Mr Rayapen reported that he was extremely apologetic for what he had done and was deeply remorseful for his actions.
Mr Rayapen reported that he had not seen a psychiatrist prior to the offences and that afterwards he had seen a psychologist on four or five occasions before moving to Melbourne and did not see anyone there.
In describing Mr Rayapen's mental health since the offences, Dr Rooprai said that Mr Rayapen reported that he was stressed about his future. He stated that due to the convictions, Mr Rayapen could not practise as a lawyer and felt a sense of grief and loss, as he had worked for so many years to achieve his qualifications. Mr Rayapen reported suffering from death threats as a result of which he had completed his education remotely.
Dr Rooprai stated that Mr Rayapen presented with features of an ongoing depressive episode including low mood, problems with sleep, problems with appetite, anhedonia, lack of motivation, excessive feelings of guilt and lack of energy. He stated that these symptoms had improved with medication, although Mr Rayapen still had residual symptoms. Dr Rooprai classified the symptoms as mild, although he said that this did not mean that they did not cause dysfunction and disability.
As to his diagnosis, Dr Rooprai said that, in his view, Mr Rayapen presented with features of Single Episode Depressive Disorder, Mild and that he would require ongoing support and treatment to achieve remission of his depressive episode. He said there were some symptoms of Mr Rayapen suffering from trauma but that he did not have the classical symptoms of post‑traumatic stress disorder.
Dr Rooprai conducted an assessment of Mr Rayapen's risk of sexual violence using the Risk for Sexual Violence Protocol (RSVP). He concluded that, according to the RSVP assessment, Mr Rayapen was deemed to be a low‑risk offender.
Dr Rooprai said that if Mr Rayapen were to be given a community disposition, he would benefit from completing a sex offenders treatment program in the community. He said that if Mr Rayapen were to receive a custodial disposition, he would recommend increased levels of observation and support during the initial period of incarceration due to a potential increase in risk of suicide and that Mr Rayapen would benefit from help and support from prison mental health 'in‑reach' services. Dr Rooprai said that Mr Rayapen should also attend prison based offending programs.
Report of Ms Fowler
Ms Fowler is a clinical psychologist who was engaged by Mr Rayapen's solicitors to provide an opinion as to whether there were any psychological factors that may explain Mr Rayapen's offending and as to his future risk. Ms Fowler interviewed Mr Rayapen, on three occasions, for a total of 2.75 hours.
In relation to Mr Rayapen's explanation for the offences, Mr Rayapen said that he did not have a clear explanation of the behaviour that constituted his offending. He said that at the gathering earlier in the night, it was a friendly and fun time and he said that he began to think 'she was interested in me … she took my jumper and put it on' and 'I thought she was flirty'. He described being very intoxicated by alcohol.
As to the circumstances of the offending, Ms Fowler reported as follows:
He said, 'I think when we got to the house that the other girl went to another room' and 'She (victim) lead me by the hand into a room with her, and [her male friend] came behind'. He continued by saying that when they were in bed, he recalled moving closer to her and 'we kissed.' 'I thought she was moaning and enjoying it but now I think she may have been saying to stop'. He said, 'I cuddled her from behind and touched her on the breast and bum and I think on the neck'. He said, 'I think she said 'stop, we can't', I was really drunk'. When asked why he did not stop Mr Rayapen said, 'I'm not sure why (pause) I was really drunk'. 'Not sure why I didn't stop, I felt really sexually aroused, I'm not sure why that mattered'. He said that in his memory 'we were kissing each other'. 'I've asked myself the same question many times why I didn't stop, I'm having a lot of issues with that, I don't know why I didn't stop'. He said, 'Maybe I thought I would get her to like it if I kept going'. He said, 'I feel ashamed, guilt.' 'I constantly wish I could go back and change it.'
It will be immediately apparent that this account is, in a number of respects, inconsistent with the agreed facts for the purposes of sentencing. It was not the fact that the victim lead Mr Rayapen by the hand into the bedroom and it was not the fact that they were 'kissing each other'. The facts were that the victim did nothing to suggest any sexual interest in Mr Rayapen. Nor did Mr Rayapen's account include the numerous occasions upon which the victim said 'no' to him.
Recognising the potential inconsistency, as counsel for Mr Rayapen confirmed at the hearing of the appeal, both the State and the sentencing judge were informed that this paragraph of Ms Fowler's report was not to be understood as undermining Mr Rayapen's acceptance of the statement of facts for the purposes of sentence. There was, however, no suggestion that Mr Rayapen did not say the things attributed to him in Ms Fowler's report. Her interview with him, of course, formed part of the basis for her opinions.[5]
[5] Appeal ts 46 ‑ 48, 66 ‑ 67.
Ms Fowler reported that Mr Rayapen expressed remorse that the victim was subjected to his behaviour and that it had likely caused her to suffer emotionally and impacted on her trust of others.
Ms Fowler said that Mr Rayapen reported his mental health deteriorating post his offending and arrest. He said that his intense feelings of shame, guilt and regret, and inability to go back and change what occurred, ruminated around in his mind constantly. Mr Rayapen reported feeling suicidal ideation within one or two months of being charged and reported an incident involving self‑harm in early 2021.
Ms Fowler reported that Mr Rayapen had applied for alcohol counselling in July 2022 and had engaged in such counselling and now understood that alcohol had been a significant part of his lifestyle. He described having reduced his drinking and discussed strategies for when he goes out and drinks.
Ms Fowler also referred to Mr Rayapen having engaged with a psychological counsellor after his arrest and prior to moving to Melbourne (which he said he had attended six or seven times). Mr Rayapen had re‑engaged with the psychologist since returning to Perth in July 2022.
Ms Fowler conducted psychometric testing on Mr Rayapen. He reported feeling sad and unhappy and being dissatisfied with his current life circumstances, which Ms Fowler said was consistent with his current legal problems and the impact his offending had, and would continue to have, on his prior career plans, life goals and interpersonal relationships. Mr Rayapen reported feeling helpless, hopeless and pessimistic and likely felt overwhelmed, and that life was a strain.
Mr Rayapen reported excessive worry, including worries about misfortune and finances, as well as preoccupation with disappointments. Ms Fowler reported that he likely worries excessively and ruminates, consistent with his current situation and the likely long term consequences of it on him. He also reported multiple anxiety‑related experiences, including generalised anxiety and re‑experiencing and/or panic.
Ms Fowler also carried out an assessment of Mr Rayapen's risk of sexual violence using the RSVP. She considered the risk of him reoffending to be unlikely. It was her opinion that Mr Rayapen's offending occurred because of several factors: his extremely intoxicated state; his cognitively distorting the victim's behaviour as meaning she was sexually interested in him; and the casual and partying behaviour and atmosphere occurring within the houses, including the sleeping arrangements. She said that the likelihood of those factors occurring again was highly unlikely because Mr Rayapen was cognisant of his need not to drink excessively.
While not proffering a formal diagnosis, Ms Fowler said that Mr Rayapen's presentation following his arrest and the reaction of his peers, girlfriend, and university community, was consistent with adjustment disorder. Adjustment disorder is a stress‑related condition and can occur when a person experiences more stress, or a combination of stressful events, than would normally be expected. Common symptoms of adjustment disorder include feeling sad or hopeless, frequently crying, worry and anxiety, trouble sleeping, changes in appetite, withdrawing from others, avoiding daily tasks, and suicidal thoughts and behaviours.
Character references
The character references, individually and collectively, speak very highly of Mr Rayapen's general character and his personal qualities. The references describe him as 'respectful and considerate',[6] 'driven, caring and ambitious',[7] 'caring, patient and considerate',[8] 'a young man of great aspirations and commendable character',[9] 'kind, respectful and generous',[10] 'respectful and mature',[11] 'very faith oriented and God loving',[12] 'genuine, responsible and helpful'[13] and 'responsible, caring and mature'.[14]
[6] AB 185.
[7] AB 187.
[8] AB 189.
[9] AB 191.
[10] AB 191.
[11] AB 193.
[12] AB 194.
[13] AB 200.
[14] AB 201.
Most of the references refer to Mr Rayapen's intoxication as a significant cause of his offending and all of them speak highly of his remorse and his regret.
All of the character references indicated that the authors were aware of the offences to which Mr Rayapen had pleaded guilty. It is not apparent from the references, however, exactly how Mr Rayapen had described the offending to the persons who provided the references, and in particular, whether his description included the matters reported to Ms Fowler that were inconsistent with the circumstances of the offending (at [87] above). In that regard, some of the references do contain peculiar and inapt descriptions of the circumstances surrounding the offending such as his 'inability to recognise cues from the victim'[15] and his having made a 'gross error of judgement'.[16] Nevertheless, there can be no question that all of the persons who provided character references hold Mr Rayapen in the highest regard and that his offending was inconsistent with their understanding of his character.
[15] AB 191.
[16] AB 193.
Sentencing remarks
The learned sentencing judge commenced his remarks by identifying the applicable maximum penalties for the offences, being a maximum penalty of 7 years imprisonment for the offence of aggravated indecent assault and 14 years imprisonment for the offence of sexual penetration without consent.[17]
[17] Sentencing remarks (AB 105).
After setting out the facts of his offending the sentencing judge referred to the interactions between Mr Rayapen and the victim in the days following, including in the pretext call. His Honour said that he had no doubt, having heard the call, that Mr Rayapen was indeed deeply and genuinely remorseful for his conduct.[18]
[18] Sentencing remarks (AB 108).
The sentencing judge referred to Ms Fowler's report as to the circumstances of the offending and to Mr Rayapen's level of intoxication.[19] His Honour also referred to the victim impact statement and to the 'significant and profound effects' that Mr Rayapen's offending had on the victim.[20]
[19] Sentencing remarks (AB 109).
[20] Sentencing remarks (AB 109).
The sentencing judge turned to the discount for the plea of guilty. His Honour said:[21]
Much has been said today about your plea of guilty. There is no doubt that your pleas of guilty were late, but nonetheless, they have had a significant benefit to the State and the witnesses in this case. In particular, the victim was spared the potentially distressing experience of having to relive the experience in court and to be cross‑examined. That benefit can never be underestimated.
Nor could it be said, despite your admissions to not only the police but also in the pretext call to the victim and in the presence of the witness, that this would never have been convictions that would be a fait accompli. In my view, in the exercise of my discretion, acknowledging that this is a late plea, nonetheless, the benefits to the State and in particular the victim are significant.
And consequently deserving of a discount of 15 per cent for each one of your pleas of guilty.
[21] Sentencing remarks (AB 110).
The sentencing judge then turned to Mr Rayapen's antecedents, and summarised aspects of the reports from Dr Rooprai and Ms Fowler. His Honour observed that Mr Rayapen had taken significant steps towards rehabilitation, including by attending alcohol counselling.[22] His Honour also noted the conclusions reached by Dr Rooprai and Ms Fowler that Mr Rayapen was a low risk of reoffending.
[22] Sentencing remarks (AB 111 - 112).
The sentencing judge set out various aspects of the character references as to Mr Rayapen's previous good character and to his expressions of remorse to those who provided the references.[23]
[23] Sentencing remarks (AB 112 - 115).
The sentencing judge turned to the reasonably widespread mainstream media and social media reporting to which Mr Rayapen had been subject. His Honour observed that our system of open justice meant that cases of this kind should be publicly reported and that while the media reporting per se had no doubt been a source of embarrassment, hurt and loss of social standing to Mr Rayapen, that was a consequence of his offending.
Nevertheless, his Honour also observed that some of the social media reporting, including that which labelled Mr Rayapen a rapist before he had been charged, was 'abhorrent' and that he had been the target of humiliating and degrading commentary. His Honour said that, while public humiliation alone was not itself mitigatory, in Mr Rayapen's case it was linked to other factors, including him moving to another city and contributing to symptoms of adjustment disorder.[24]
[24] Sentencing remarks (AB 115).
Turning to the appropriate disposition, the sentencing judge said that he had reviewed in the order of 50, perhaps 60, authorities and observed that, for offending of this type:[25]
Suspended terms of imprisonment are few and far between, indeed, I could only find one where there was a sexual penetration offence with any similarity, a case of Smith.
[25] Sentencing remarks (AB 116).
It was accepted, at the hearing of the appeal, that his Honour's reference to the case of Smith was a reference to R v Smith.[26] That was a decision of the former Court of Criminal Appeal in 2004, in which the Crown unsuccessfully appealed a suspended sentence for offences including digital penetration, in what followed a short period of 'consensual physical interaction' and in which there was 'no relevant relationship of trust and confidence or vulnerability'.[27]
[26] R v Smith [2004] WASCA 44 (Smith).
[27] Smith [22] (McLure J).
The sentencing judge said that it was well established that, ordinarily, only an immediate term of imprisonment is appropriate for the offence of sexual penetration without consent. His Honour said that a suspended term of imprisonment could only, as a matter of fact, be imposed if there were exceptional factors warranting a departure from this approach.[28]
[28] Sentencing remarks (AB 116).
The sentencing judge identified the following factors as pointing towards a suspended term of imprisonment.
First, 'the publicity and the extra‑curial punishment that arises as a consequence, particularly of the social media campaign linked to your adjustment disorder'.[29]
[29] Sentencing remarks (AB 116 - 117).
Secondly, 'the loss of ability to realistically ever practice law in Western Australia, or indeed likely anywhere in the Commonwealth'.[30]
[30] Sentencing remarks (AB 117).
Thirdly, Mr Rayapen's youth, given that he was 24 years old at the time of the offences.[31]
[31] Sentencing remarks (AB 117).
Fourthly, Mr Rayapen's plea of guilty.[32]
[32] Sentencing remarks (AB 117).
Fifthly, Mr Rayapen's remorse. In that regard, the sentencing judge said:[33]
There is your deep and genuine remorse which I have found, in this case, to have been at the highest end of remorse, and that is as not only a judge but as a person involved in the criminal justice system for well over 25 years.
[33] Sentencing remarks (AB 117).
Sixthly, his Honour said that while there was a degree of persistence in the offending, he was satisfied that the overall offending lacked any real premeditation and was opportunistic.[34]
[34] Sentencing remarks (AB 117).
Seventhly, 'the humiliation and public opprobrium, together with the loss of ability to attend the campus, the need to move to Melbourne, and the loss of peers and recognition and status'.[35]
[35] Sentencing remarks (AB 117).
Eighthly, Mr Rayapen's deep sense of feeling of bringing dishonour to his family.[36]
[36] Sentencing remarks (AB 117).
Ninthly, the 'severe psychological effects of the offending' on Mr Rayapen, including the self‑harm attempt.[37]
[37] Sentencing remarks (AB 117).
Tenthly, Mr Rayapen's 'strong steps towards rehabilitation in addressing alcohol and other factors'.[38]
[38] Sentencing remarks (AB 117).
Finally, his Honour referred to Mr Rayapen's 'positive antecedents, including a demonstrated commitment to public service, particularly supporting vulnerable and abused women within society'.[39]
[39] Sentencing remarks (AB 117).
The sentencing judge concluded that a term of imprisonment was appropriate for each offence. In relation to the offence of aggravated indecent assault his Honour concluded that the appropriate sentence was 12 months imprisonment. In relation to the offence of sexual penetration without consent his Honour concluded that the appropriate sentence was 2 years imprisonment. His Honour considered that the terms should be ordered to be served concurrently.[40]
[40] Sentencing remarks (AB 117 - 118).
The sentencing judge returned to the question as to whether to suspend the terms of imprisonment. His Honour referred to the consideration of mercy. In doing so his Honour referred to an academic article in relation to the place of mercy in sentencing,[41] from which his Honour drew the following principles:[42]
The discretion to extend mercy to reduce a sentence below that which would ordinarily be regarded as appropriate to the wrongdoing (the sentencer having already incorporated all relevant mitigating circumstances), should only be exercised sparingly and in exceptional circumstances.
The exceptional circumstances which are said to justify exercising the judicial discretion to be merciful must be based on a proper evidential foundation.
Compassion and the avoidance of excessive suffering must be the main motives for the exercise of judicial mercy.
[41] Richard G Fox, When Justice Sheds a Tear: The Place of Mercy in Sentencing (1999) 25 Monash University Law Review 1 (The Place of Mercy in Sentencing).
[42] Sentencing remarks (AB 118). The principles referred to by his Honour are those numbered 3, 6 and 7 in The Place of Mercy in Sentencing, 25.
The sentencing judge concluded that, in Mr Rayapen's case, 'considerations of mercy are appropriate', based on the evidential foundation of the factors that his Honour had earlier mentioned. His Honour said that 'the inherent exercise of mercy' had caused him, in combination with other factors, to come to the conclusion that it would not be appropriate to impose an immediate term of imprisonment.[43]
[43] AB 119.
His Honour therefore imposed a sentence of 12 months imprisonment in relation to the offence of aggravated indecent assault, 2 years imprisonment in relation to the offence of sexual penetration without consent, ordered that the sentences be served concurrently and wholly suspended both terms for a period of 2 years.
As he was required to do, his Honour also made a lifetime violence restraining order in favour of the victim.
We turn to the grounds of appeal.
Grounds of appeal
There are six grounds of appeal. They are:
1.The learned sentencing judge erred in fact in concluding that the respondent possessed 'deep and genuine remorse' at the 'highest end of remorse' in circumstances where:
1.1.His Honour's assessment of the respondent's remorse took into account factors that arose prior to the respondent's plea of guilty, namely:
1.1.1.the respondent's apology to the victim the day after the offending;
1.1.2.the respondent's communications with the victim via Facebook immediately prior to the pretext call;
1.1.3.the respondent's comments in the pretext call with the victim;
1.2.These factors did not reflect, to the degree of being 'deep and genuine', that what he did was morally wrong nor were they a sign of some sorrow for the impact or consequences of the offending on the victim;
1.3.the finding of 'deep and genuine remorse' cannot be sensibly reconciled with:
1.3.1.comments attributed to the respondent in the prosecution brief in the aftermath of the offending;
1.3.2.the lack of admissions to the offending in the respondent's police interview; and
1.3.3.the respondent's failure to indicate pleas of guilty until the afternoon before the date upon which the trial was listed to proceed.
2.The learned sentencing judge erred in exercising his discretion to discount the head sentence on each count by 15% pursuant to section 9AA of the Sentencing Act 1995, such discount being unreasonable or plainly unjust, in circumstances where:
2.1.the plea of guilty was not indicated until the night before the trial was scheduled to commence; and
2.2.it was not reasonably open to the sentencing judge to conclude that the strength of the prosecution case was anything other than strong.
3.The learned sentencing judge erred in law in concluding that considerations of mercy were relevant in the circumstances of the present case, such error resulting in his Honour taking into account an irrelevant factor in the exercise of the sentencing discretion.
4.The learned sentencing judge erred in law by suspending the terms of imprisonment imposed on counts (2) and (4), such disposition being so inadequate as to manifest error, having regard to:
4.1.the statutory maximum penalties of 7 years' imprisonment and 14 years' imprisonment respectively;
4.2.the serious nature and circumstances of the offences;
4.3.the particular vulnerability of the complainant, who was sleeping at the commencement of the offences;
4.4.the need for the sentence to adequately reflect general deterrence and appropriate punishment for offending of this nature;
4.5.the sentences imposed in broadly comparable cases; and
4.6.the personal circumstances of the respondent.
5.The learned sentencing judge erred in law by imposing an individual sentence of 2 years' imprisonment on count (4) which was so inadequate in length as to manifest error, having regards to:
5.1.the statutory maximum penalty of 14 years' imprisonment;
5.2.the serious nature and circumstances of the offences;
5.3.the particular vulnerability of the complainant, who was sleeping at the commencement of the offences;
5.4.the need for the sentence to adequately reflect general deterrence and appropriate punishment for offending of this nature;
5.5.the sentences imposed in broadly comparable cases; and
5.6.the personal circumstances of the respondent.
6.The learned sentencing judge erred in law by imposing a total effective sentence of two years' imprisonment, which infringed the first limb of the totality principle in that it failed to properly reflect the overall criminality of the offending conduct.
There is considerable overlap between the grounds of appeal. In particular, the issues arising in ground 3 (which challenges the sentencing judge's conclusion that this was an appropriate case for the exercise of mercy) significantly mirror those in relation to ground 4 (which challenges the sentencing judge's conclusion that the terms of imprisonment should be suspended). That is because both the 'exercise of mercy' and the imposition of a suspended term of imprisonment for an offence of sexual penetration without consent were said by his Honour to be justified by 'exceptional circumstances'.
Similarly, the issues arising in relation to ground 5 (which contends that the individual sentence of 2 years imprisonment for the offence of sexual penetration without consent was manifestly inadequate) are almost identical to those that arise in relation to ground 6 (which contends that the total effective sentence of 2 years imprisonment for both offences was manifestly inadequate). Indeed the State, at the hearing of the appeal, accepted that 'complete concurrency would not be impeachable if the discrete term imposed on the sexual penetration charge was sufficiently high'.[44]
[44] Appeal ts 33.
For these reasons, grounds 3 and 4 will be dealt with together, as will grounds 5 and 6.
Ground 1 – deep and genuine remorse at the highest end of remorse?
Ground 1 alleges express error and contends that the sentencing judge erred in fact in concluding that Mr Rayapen had 'deep and genuine remorse' at the 'highest end of remorse'. To be clear, the State did not contend, and did not submit to the sentencing judge, that Mr Rayapen had no remorse for his offending. The State accepted before the sentencing judge that Mr Rayapen had a 'degree' of remorse,[45] a position that it maintained on appeal.[46] As counsel put the State's position, it is 'the finding that the remorse was deep and genuine, with emphasis on deep, and the remorse was 'at the highest end of remorse', which is impugned'.[47]
[45] AB 97.
[46] Appeal ts 2.
[47] Appeal ts 2.
In support of this ground, the State submitted that, in assessing remorse, the court is entitled to have regard to the entirety of an offender's conduct. It submitted that, in the present case, a finding that Mr Rayapen's remorse was 'deep' and at 'the highest end of remorse' could not be supported in light of:
(a)the comments that he made to the witness the day after the offending to the effect that 'We are blokes. We have urges';
(b)the lack of admissions as to wrongdoing in the electronic record of interview with police;
(c)the failure to enter pleas of guilty at an early stage of the proceedings, including in light of the State's offer to enter into negotiations;
(d)the late plea of guilty, being proffered the day before trial; and
(e)the minimisation of his wrongdoing in the statements made to Ms Fowler.
Counsel for Mr Rayapen submitted that the material before the sentencing judge provided a solid foundation for the conclusion his Honour drew in relation to remorse. Counsel submitted that the pretext call was 'powerful evidence' of Mr Rayapen's remorse[48] and referred to the sentencing judge's conclusions in that regard at the hearing of the appeal. As noted above, in that context, counsel accepted that this Court was in as good a position as the sentencing judge to make an assessment of, and reach conclusions, in relation to the pretext call, in light of all of the circumstances. Mr Rayapen also relied upon the numerous expressions of remorse attested to by the experts and in the character references.[49]
[48] Appeal ts 37. Respondent's submissions [13] (AB 39).
[49] Respondent's submissions [12] (AB 37 - 38).
Counsel for Mr Rayapen submitted that the fact that he made a largely 'no comment' record of interview did not 'foreclose on a finding that he was remorseful'. The 'no comment' record of interview was, she submitted, 'simply a manifestation of his legal right to silence'. [50] At the hearing of the appeal counsel nevertheless accepted that the fact that Mr Rayapen had exercised his undoubted right to silence, and made no substantive admissions in the interview, was not irrelevant in assessing the genuineness and depth of his remorse.[51]
[50] Respondent's submissions [17] (AB 39 - 40).
[51] Appeal ts 54.
Counsel emphasised that the most reliable indicator of remorse is an offender's conduct over a period of time.[52]
Ground 1 – remorse – legal principles
[52] Appeal ts 54.
Remorse is, as the authorities make clear, an important element in the exercise of the sentencing discretion. Not only does it enhance the prospects of rehabilitation and reduce the need for specific deterrence,[53] demonstrable remorse can also have a significant restorative effect on victims of crime, by the clear and unambiguous recognition by an offender of the wrong that the offender has done to the victim or victims of their offending and of the harm done to those victims.
[53] Barbaro v The Queen [2012] VSCA 288; (2012) 226 A Crim R 354 (Barbaro) [39] (Maxwell P, Harper JA and T Forrest AJA).
While an important sentencing consideration, remorse nevertheless remains a sometimes elusive concept,[54] and does not lend itself to easy definition. As Thomas à Kempis said, 'I would far rather feel remorse than know how to define it'.[55]
[54] Lee-Kong v Brunnen [2022] WASC 150 (Lee-Kong v Brunnen) [52] (Solomon J), citing Day v The Queen [2001] WASCA 284 (Day v The Queen) [21] (Kennedy J).
[55] See Lee-Kong v Brunnen [52] (Solomon J), citing Kempis, T The Imitation of Christ 1441 Book 1 Chp 1 Section 3.
Remorse is not to be equated with an offender's regret over the consequences for themselves and their non‑victim family members (including any consequences for themselves under the criminal law) of their actions.[56] It is, rather, the genuine regret for the wrong itself, penitence and contrition for that wrong and a desire to atone.[57] As the Court of Appeal in Victoria said in Barbaro v The Queen:[58]
A distinction must be drawn between the anguish of being caught and punished, on the one hand, and – on the other – the determination to change one's behaviour and, to the extent possible, make amends. The first is not remorse at all. The second is. This is clear when one goes to dictionary definitions of the word 'remorse' and words associated with it. 'Remorse' is defined in, respectively, the New Shorter Oxford Dictionary and the Macquarie Dictionary as 'deep regret and repentance for a wrong committed' and 'deep and painful regret for wrongdoing; compunction'. The word 'compunction' in turn is defined in those two works, again respectively, as 'pricking or stinging of conscience or the heart; uneasiness of mind after wrongdoing; remorse' and 'uneasiness of conscience or feelings; regret for wrongdoing or giving pain to another; contrition'.
[56] Bradbury v The State of Western Australia [2020] WASCA 214 (Bradbury) [54] (Buss P, Mazza & Vaughan JJA).
[57] Barbaro [38] (Maxwell P, Harper JA and T Forrest AJA).
[58] Barbaro [36] (Maxwell P, Harper JA and T Forrest AJA).
Being a matter relating to the moral conscience of the offender, remorse is not something that can be directly perceived by a court. Rather, a finding that an offender is remorseful, and the degree to which the offender is remorseful, are matters that must be inferred from other facts, including the words and conduct of the offender.[59] The offender bears the onus of establishing remorse on the balance of probabilities.[60]
[59] Bradbury [55] (Buss P, Mazza & Vaughan JJA).
[60] The State of Western Australia v Egeland [2018] WASCA 228 (Egeland) [39] (Buss P); Bradbury [52] (Buss P, Mazza & Vaughan JJA).
In this context, actions speak louder than words. As this Court said in Bradbury:[61]
Ordinarily, the post‑offence conduct of the offender (that is, their actions as distinct from their words) will be a more reliable guide than the offender's words in evaluating whether the offender actually feels remorseful or not.
[61] Bradbury [55] (Buss P, Mazza & Vaughan JJA).
The reason for this is obvious. An expression of remorse, or an apology, might be sincere or it might not. Similarly, an expression of remorse might not be consistent with, or even be contradicted by, the offender's later actions. Actions, particularly actions that have real consequences for the offender, are therefore more likely to be demonstrative of the offender's true extent of contrition.
As Kennedy J said in Day v The Queen, drawing upon the academic literature:[62]
Pious claims of an intention to turn over a new leaf, or to make restitution, or to reform oneself, will alone seldom be sufficient. Nor will great weight be attached to remorse that appears only once the 'jaws of Pentridge' gape before the offender. In all cases, to obtain mitigation of sentence, concrete evidence of contrition is needed. It usually has to take the form of restitution to the victim, co‑operation with the authorities by disclosing the identity of co‑offenders, an early indication of an intention to plead guilty, the admission of other offences, or the provision of information leading to the restitution of goods and property or conviction of other offenders.
[62] Day v The Queen [22] (Kennedy J), citing Fox & Freiberg, Sentencing State and Federal Law in Victoria, 2nd edn (1999), 306.
Similarly, insofar as expressions of remorse are concerned, it may be relevant to whom those expressions of remorse have been made. As the court said in Barbaro:[63]
A judge is certainly not bound to accept second‑hand evidence of what the offender said to a psychiatrist or psychologist or other professional, let alone testimonials from family or friends, or statements from the Bar table.
[63] Barbaro [38] (Maxwell P, Harper JA and T Forrest AJA).
Nor, in evaluating the existence and degree of remorse, should a court confine itself to moments in time, or consider particular words or conduct in isolation. As Redlich JA and Curtain AJA said in Phillips v The Queen:[64]
The conduct and statements of the offender over time provide a more informative and precise guide than the plea alone as to whether genuine and deep contrition exists. …
In every case the genuineness of the contrition and the time and manner in which it is manifested in association with the plea of guilty will require evaluation by the sentencing judge in the light of the overall complexity of the facts before the court.
Ground 1 – disposition
[64] Phillips v The Queen [2012] VSCA 140 [69], [72]; Barbaro [40] ‑ [41] (Maxwell P, Harper JA and T Forrest AJA).
Ground 1 must be upheld. The learned sentencing judge was wrong to conclude that Mr Rayapen had 'deep and genuine remorse' at the 'highest end of remorse'. It was clearly open to his Honour to find that Mr Rayapen had a degree of remorse on the basis of all of the material before him, as the State accepted. What was not open was the conclusion, on the balance of probabilities, that Mr Rayapen's remorse was 'deep', and in particular, that it was at the 'highest end of remorse'. That conclusion, which clearly held significant weight in the sentencing judge's exercise of discretion, was contrary to the combined effect of all of the facts and circumstances before him.
The most significant circumstance, in this regard, was the failure of Mr Rayapen to accept the legal consequences of his offending conduct until what was, in effect, the very last moment. He pleaded guilty to the offences on the first day listed for trial, having proffered that plea the previous afternoon. While it is possible to imagine a later plea of guilty (an offender might, for example, change their plea to guilty during the course of a trial), for all intents and purposes Mr Rayapen maintained his innocence for as long as he possibly could.
Significantly, notwithstanding all of the material placed before the sentencing judge in mitigation, at no time does there appear to have been any explanation for why Mr Rayapen's acceptance of legal responsibility for his conduct was as late as it was.
Moreover, it was not simply that Mr Rayapen maintained a plea of not guilty to the offences for over two years that is significant in this regard. Prior to the day before trial, there had never been an acceptance by Mr Rayapen that he had offended against the victim in the manner that he had. His conversation with the victim the following day, and the pretext call, upon which Mr Rayapen placed much reliance, do not contain such an acceptance. Mr Rayapen had sexually penetrated the victim without her consent. The first thing that he said to her the following day was 'I didn't mean to do anything without your consent'. 'Anything' in that context could have meant just that: 'anything', including kissing the victim or some other less serious conduct. It was not an admission that he had sexually penetrated the victim without her consent. Indeed, on one view it could be taken to be a denial of knowledge that the victim was not consenting (a position he retreated from when challenged by the victim).
Similarly in the pretext call, Mr Rayapen admitted that he had 'fucked up', significantly because he saw that the victim was 'really upset' the following day. He referred to 'what I've done', but there was no admission or acceptance as to what that was. It was the victim who said that Mr Rayapen had 'raped' her. To that statement, Mr Rayapen initially did not respond, until he ultimately said 'I should have just gone home'. While it certainly contained an implied admission of some wrongdoing, the pretext call, as a whole, did not contain an admission by Mr Rayapen that he had sexually penetrated the victim without her consent. Also noticeably absent was any clear expression of concern for the welfare of the victim. In response to the victim saying she was not okay, Mr Rayapen expressed a wish that it had never happened. That is a less than fulsome acknowledgement of responsibility for the consequences of his actions.
There was otherwise no admission of wrongdoing by Mr Rayapen until his guilty pleas. There was no such admission in his 'no comment' record of interview or at any other time during the more than two years that elapsed after Mr Rayapen was charged. To say that Mr Rayapen had a right to silence when interviewed by the police is not to the point. He was not under an obligation to exercise that right and the fact that he did so sits uncomfortably with a claim of deep and genuine remorse.
Much was made of the fact that the victim was spared the potentially distressing experience of having to relive the experience in court and to be cross‑examined. That is, of course, true and deserving of real weight in mitigation. Nevertheless, it also highlights the fact that the victim was, for over two years, left to understand and expect that she would be cross‑examined, without knowing whether it would be put to her that Mr Rayapen did not do the things that she said that he did to her or whether she had consented to them. In the absence of some compelling explanation (which was not forthcoming in the present case), to leave a sexual assault victim in that position is simply inconsistent with deep and genuine remorse at the highest end of remorse.
Against these circumstances, the matters relied upon by Mr Rayapen as to the depth and duration of his remorse were not, individually or collectively, capable of sustaining the conclusion reached by the sentencing judge.
First, while Mr Rayapen's conversations with the victim the following day and in the pretext call do certainly contain an acknowledgement of wrongdoing, as we have said, those acknowledgements are somewhat equivocal as to the subject matter of the apology. Having considered those conversations, including having listened to the pretext call, we accept that those conversations, seen in isolation, are capable of being understood as expressing genuine remorse on Mr Rayapen's part. Equally, however, those conversations could reflect Mr Rayapen's recognition, from an early stage, that his conduct could well have dire consequences for him should the victim complain to police and reflect his attempt to avoid the victim doing so.
Which of these interpretations is more likely, however, depends in part upon what Mr Rayapen did next, and whether the remorse and regret reflected in his words was matched by his conduct. As we have already said, it was not (at least until much later).
Secondly, Mr Rayapen relied upon the many second‑hand accounts of his remorse contained in Dr Rooprai's report, Ms Fowler's report and in the character references. A sentencing judge is, of course, entitled to rely upon such evidence of remorse although, as was made clear in Barbaro (see [146] above), he or she is not bound to do so.
Significantly, all of these accounts of remorse were prepared after Mr Rayapen had pleaded guilty and while he was awaiting sentence. They were, to adapt the expression used by Kennedy J in Day v The Queen, expressions of remorse once the 'jaws of Casuarina' were gaping before Mr Rayapen (see [145] above). In that context, they were themselves, late evidence of remorse. In addition, it is difficult, on the basis of that material, to distinguish between the impact of genuine remorse for Mr Rayapen's wrongdoing and for the effect on the victim and his regret over the consequences of his actions and the profound effect on him, the latter of which feature prominently in the material.
Some of the character references, it should be acknowledged, referred to Mr Rayapen having expressed remorse for his actions prior to his pleas of guilty. Mr Rayapen's romantic partner, for example, said that, shortly after they met in April 2021, Mr Rayapen told her about the charges and was 'very remorseful'. The indictment against Mr Rayapen was signed on 28 April 2021. The fact that, according to his partner, Mr Rayapen was expressing remorse to her in April 2021, rather begs the question why, at the same time, he was publicly maintaining that he was not guilty and was not accepting responsibility for his actions.
In relation to the psychological report of Ms Fowler, as set out at [87] to [89] above, while Ms Fowler confirmed that Mr Rayapen had expressed remorse for the victim and the effect of his behaviour on her, Mr Rayapen's account of the offending to Ms Fowler included inaccurate details that served to minimise the extent of his wrongdoing (suggesting that she had 'lead [him] by the hand' and that they 'were kissing each other'). To his credit, Mr Rayapen, through his representatives, made clear that his account of the events should not be understood as detracting from his acceptance of the statement of facts for the purposes of sentence. Nevertheless, the fact that, even after his pleas of guilty, Mr Rayapen's own, subjective, account of his offending failed to convey (or come to terms with) the full seriousness of his conduct, tells against a finding that his remorse was at the 'highest end'.
Thirdly, Mr Rayapen relied upon the efforts he had taken to reform aspects of his behaviour that had contributed to his offending, including by applying for alcohol counselling in July 2022, in the month prior to his pleas of guilty. Steps towards rehabilitation such as these provide mitigation, in and of themselves, and were properly accorded weight by the sentencing judge. Nevertheless, without more, they are not necessarily compelling evidence of remorse; there may be many explanations for taking such steps, including the impact of the effects of the offending upon the offender himself. We would also observe that, in a case such as this, steps taken to address the excessive use of alcohol, while commendable, should not be given undue weight when it comes to the offender's culpability and level of remorse. While intoxication can provide some explanation for an offender's conduct, it is well established that intoxication provides no excuse and affords no mitigation to the offender. In that context, to attribute all, or most, of an offender's responsibility for his offending to his state of intoxication at the time – thereby externalising that responsibility – runs the risk of avoiding, or eliding, the kind of deep examination of conscience required for genuine remorse.
Finally, before the sentencing judge, and on appeal, Mr Rayapen's counsel referred to Mr Rayapen experiencing 'cognitive dissonance' between his self‑understanding and the kind of person that would act in the way that he did.[65] So understood, 'cognitive dissonance' would appear simply to describe a universal aspect of human experience and the first step on the road to moral maturity. Whatever it does mean, however, the notion that Mr Rayapen experienced such 'dissonance' does not assist in reaching any conclusion as to the depth of his remorse. As was observed at the hearing of the appeal, if anything an unresolved self‑understanding following the commission of such an offence may well be inconsistent with a finding of remorse.[66]
[65] AB 73.
[66] Appeal ts 50 - 51.
For the above reasons, we have concluded that the learned sentencing judge erred in concluding that Mr Rayapen had 'deep and genuine remorse' at the 'highest end of remorse'. We are also satisfied that his Honour's erroneous finding was capable of affecting the actual sentence imposed by his Honour. The error was therefore 'material' in the relevant sense.[67]
[67] Egeland [47] (Buss P).
We would grant leave to appeal on ground 1 and uphold the ground.
Ground 2 – discount for plea of guilty
Ground 2 contends that the learned sentencing judge erred in exercising his discretion to discount the head sentence on each count by 15%. The sentencing judge's reasons for affording Mr Rayapen such a discount are set out at [104] above.
While the State made submissions at the hearing of the appeal suggesting that the sentencing judge had erred in failing to reach, or express, a conclusion as to the strength of the State case, ultimately ground 2 alleged implied error. That is, the State contended that the discount was unreasonable or plainly unjust so as to manifest error.[68]
Ground 2 – discount for plea of guilty – legal principles
[68] House v The King (1936) 55 CLR 499 (House v The King).
Section 9AA of the Sentencing Act1995 (WA) (Sentencing Act) makes the following provision in relation to the discount that may be afforded for a plea of guilty:
9AA. Plea of guilty, sentence may be reduced in case of
(1) In this section –
fixed term has the meaning given in section 85(1);
head sentence, for an offence, means the sentence that a court would have imposed for the offence if –
(a) the offender had been found guilty after a plea of not guilty; and
(b) there were no mitigating factors;
victim has the meaning given in section 13.
(2) If a person pleads guilty to a charge for an offence, the court may reduce the head sentence for the offence in order to recognise the benefits to the State, and to any victim of or witness to the offence, resulting from the plea.
(3) The earlier in the proceedings the plea is made, the greater the reduction in the sentence may be.
(4) If the head sentence for an offence is or includes a fixed term, the court must not reduce the fixed term under subsection (2) –
(a) by more than 25%; or
(b)by 25%, unless the offender pleaded guilty, or indicated that he or she would plead guilty, at the first reasonable opportunity.
(5) If a court reduces the head sentence for an offence under subsection (2), the court must state that fact and the extent of the reduction in open court.
(6) This section does not prevent the court from reducing the head sentence for an offence because of any mitigating factor other than a plea of guilty.
The legal principles applicable to the application of s 9AA of the Sentencing Act are well settled. They were summarised by this Court in NI v The State of Western Australia:[69]
[69] NI v The State of Western Australia [2020] WASCA 78 (NI v The State of Western Australia) [62] - [68] (Buss P, Mazza & Mitchell JJA).
Under s 9AA(2), if a person pleads guilty to a charge for an offence, the court may reduce the 'head sentence' for the offence. The head sentence for this purpose is the sentence that a court would have imposed if the offender had been found guilty after a plea of not guilty and there were no mitigating factors. The court may reduce the head sentence:
'[I]n order to recognise the benefits to the State, and to any victim of or witness to the offence, resulting from the plea.'
These utilitarian considerations exhaustively state the matters to be taken into account in determining the extent of any discount under s 9AA for a plea of guilty.
The benefits to the State which may result from a plea would ordinarily include the matters in the following non‑exhaustive list:
(a) securing the conviction of a person who has committed a criminal offence;
(b) the Office of the Director of Public Prosecutions (WA) not having to use resources in the preparation and conduct of a criminal trial;
(c) if the accused has been or would otherwise have been granted legal aid, the Legal Aid Commission (WA) not having to use resources in the preparation and conduct of a defence;
(d) avoiding the time and expense involved in summoning and empanelling jurors for a criminal trial; and
(e) the more expeditious and efficient resolution of proceedings in the criminal justice system than would otherwise be the case.
Section 9AA(3) provides that, the earlier in the proceedings the plea is made, the greater the reduction in sentence may be. Under s 9AA(4)(a), where (as is the case here) the head sentence is a fixed term, as defined by s 9AA(1), the court must not reduce the fixed term by more than 25%. Further, the court must not reduce the fixed term by 25% unless the offender pleaded guilty, or indicated that he or she would plead guilty, at the first reasonable opportunity.
A sentencing judge is not bound to allow a discount of 25% whenever the offender pleads guilty at the first reasonable opportunity. Rather, a sentencing judge has a discretion in deciding upon the discount to be given in each case. This recognises that the nature, character and extent of the benefits referred to in s 9AA may vary across particular cases where the offender has pleaded guilty at the first reasonable opportunity.
The strength of the prosecution case can be taken into account in assessing the amount of the discount under s 9AA. This is because the strength of the prosecution case is directly relevant to the prospects of securing a conviction, and therefore the value of the benefit to the State of the kind identified at [point] (a) above. The strength of the prosecution case may also affect the length of a trial and the legal resources it requires, although this will not always be the case.
However, as Buss P and Mazza JA noted in Winmar v The State of Western Australia, in evaluating the appropriate discount to be given under s 9AA it is important to bear in mind the underlying purpose or object of the provision. As Mazza JA and Hall J observed in Gobetti v The State of Western Australia:
It is important to always bear in mind the underlying purpose of allowing and quantifying a discount for a plea of guilty. The purpose is to encourage those who are guilty to enter their pleas at the earliest possible stage, and thereby maximise the benefits of those pleas to the State and any victims or witnesses. Discounts act not merely as a reward to the individual, but as an encouragement to others. Too parsimonious an approach to the awarding of a discount may discourage others from entering a plea of guilty. Even when the prosecution case is overwhelming a discount should be given to ensure that accused persons do not view the entering of a plea of guilty as being pointless. (citation omitted)
In order to impugn the exercise of the sentencing judge's discretion under s 9AA, the appellant must show either that the sentencing judge made an express material error of principle, or that error is to be inferred from a result of the exercise of the discretion which is unreasonable or plainly unjust.
As this, and many other judicial references to mercy make clear,[86] the exercise of mercy in a particular case must be justified by some particular circumstances that take the case out of the ordinary, such that those circumstances are 'special' or 'exceptional'. Mercy can facilitate justice where, due to special or exceptional circumstances, the sentence that would ordinarily be appropriate would produce a clearly unjust result in a particular case.
[86] See R v Kane [1974] VR 759 (R v Kane), 766 (Gowans, Nelson & Anderson JJ); R v Osenkowski (1982) 30 SASR 212, 212‑3 (King CJ); R v Miceli [1998] 4 VR 588.
What is also clear is that 'mercy' is not a dispensing power, by which a judge may give effect to idiosyncratic views about punishment for particular crimes or types of crime.[87] As the court said in R v Kane:[88]
[J]ustice and humanity walk together. Cases frequently occur when a court is justified in adopting a course which may bear less heavily upon an accused than if he were to receive what is rather harshly expressed as being his just deserts. But mercy must be exercised upon considerations which are supported by the evidence and which make an appeal not only to sympathy but also to well‑balanced judgment. If a court permits sympathy to preclude it from attaching due weight to the other recognized elements of punishment, it has failed to discharge its duty.
[87] Dinsdale v The Queen [68] (Kirby J).
[88] R v Kane, 766 (Gowans, Nelson & Anderson JJ).
As a matter of principle, the sentencing judge in the present case was correct to conclude that he could only exercise mercy, by suspending Mr Rayapen's terms of imprisonment, if there were exceptional circumstances based on a proper evidential foundation.
The critical question, in relation to both ground 3 and ground 4, is whether it was open to his Honour to conclude that exceptional circumstances existed so as to justify that course. It is to that question that we now turn.
Grounds 3 and 4 – disposition
Grounds 3 and 4 must be upheld.
In our view, there were no exceptional circumstances in the present case that could have justified the conclusion that Mr Rayapen should be afforded mercy by suspending the terms of imprisonment imposed. While the offence of aggravated indecent assault, considered in isolation, might have been capable of justifying a suspended sentence in light of Mr Rayapen's relative youth, good antecedents and low risk of future offending, the totality of his offending, including the offence of sexual penetration without consent was simply too serious to justify anything other than a term of immediate imprisonment.
In truth, there was nothing exceptional about this case, either as to the circumstances of the offending or matters personal to Mr Rayapen or otherwise relevant to the exercise of the sentencing discretion. The circumstances of the offending, as is discussed in more detail in relation to grounds 5 and 6, were objectively very serious.
As to the matters personal to Mr Rayapen, this was not a case, as is sometimes the case, where there was some particular, identifiable, matter that called for a merciful sentence, such as a serious medical condition on the part of the offender, or some unusual and serious harm that would be suffered by an innocent third party (such as a child or other dependent relative) as a consequence of the immediate imprisonment of the offender. Indeed, at the hearing of the appeal, counsel for Mr Rayapen did not submit that there was any particular matter that singled this case out from almost all other cases involving sexual penetration without consent. It was rather, she submitted, the combination of factors, particularly those identified by the sentencing judge.[89]
[89] Appeal ts 72; AB 42 - 43.
When those factors (which are enumerated at [113] to [123] above) are carefully analysed, however, it is apparent that they cannot, either alone or in combination, be reasonably said to amount to exceptional circumstances, so as to depart from the appropriate sentence reflecting the seriousness of the offences. Indeed, many, if not most, of the factors identified by the sentencing judge are commonplace and frequently arise in the exercise of sentencing discretion.
We will briefly address each of the factors identified by the sentencing judge, recognising that it was the combined effect of them that was relied upon by his Honour.
The first factor was publicity and 'extra‑curial punishment' linked to Mr Rayapen's adjustment disorder. As the sentencing judge himself observed, adverse publicity itself is not a mitigating factor; it is the consequence of open justice. While it may be accepted that some of the social media would have been distressing (particularly the messages referred to at [74] above), it was an overstatement to describe them as a social media 'campaign'. As for Mr Rayapen having symptoms of an adjustment disorder, as counsel for the State submitted at the hearing of the appeal, it would be exceptional for a person faced with the consequences of their offending, who had never been to prison before, not to experience the stress related symptoms described by Mr Rayapen.[90]
[90] Appeal ts 30.
The second factor was the loss of Mr Rayapen's ability to practice law. That inability was, of course, entirely a consequence of Mr Rayapen's own conduct. By conducting himself in a manner inconsistent with an entitlement to be admitted to legal practice, Mr Rayapen forfeited that privilege. More broadly, the loss of professional or employment opportunities is a commonplace consequence of sexual offending.
As to youth (the third factor identified by his Honour), Mr Rayapen was entitled to some mitigation of the length of his sentence by reason of his relative youth, being 24 years of age at the time of the offending. Nevertheless, many offenders for offending of this type are similar in age to, or younger than, Mr Rayapen. There is nothing to suggest that Mr Rayapen was immature for his age; to the contrary, he had already completed one university degree and was part‑way through another. There was nothing exceptional about Mr Rayapen's age.
There was nothing exceptional about Mr Rayapen's pleas of guilty (the fourth factor), other than the fact that they were exceptionally late.
We have already found that the sentencing judge's finding as to the fifth factor – Mr Rayapen's remorse being at the 'highest end' – was in error. To the extent that Mr Rayapen did have a degree of genuine remorse (which the State accepted), his remorse did not place Mr Rayapen in an exceptional category.
The sixth factor was the fact that Mr Rayapen's offending lacked premeditation and was opportunistic. This was not exceptional. A great many, perhaps the overwhelming majority, of sexual offences are opportunistic and situational.
The seventh factor (humiliation and public opprobrium), has already been addressed in the context of the first factor. While public opprobrium and humiliation may, in some circumstances, be mitigatory,[91] in the present case, to the extent that Mr Rayapen has suffered these things, it was not exceptional.
[91] Ryan v The Queen (2001) HCA 21 (2001) 206 CLR 267 [123] (Kirby J) [177] (Callinan J).
The eighth factor was Mr Rayapen's deep sense of bringing dishonour to his family. It is, in our view, difficult to see how this, almost inevitable consequence of the nature of his offending, could be regarded as an exceptional matter.
The ninth factor identified by the sentencing judge was the 'severe psychological effects of the offending' on Mr Rayapen. By referring to the effects of 'the offending', we take the sentencing judge to be including the effects of being arrested and charged, those matters (according to the expert reports) being significant contributors to Mr Rayapen's psychological state. While the characterisation of those psychological effects as 'severe' might be open to question (Dr Rooprai having diagnosed Mr Rayapen as having features of a mild depressive disorder), there was a proper basis for taking into account Mr Rayapen's ongoing psychological symptoms as mitigatory. They were not however exceptional effects or factors, by any means.
The tenth factor, Mr Rayapen's steps at rehabilitation in addressing alcohol and other factors, while relevant matters of mitigation, were neither exceptional themselves nor did they constitute exceptional circumstances. Indeed, the steps taken to seek alcohol counselling occurred relatively late in the history of the proceedings, in the month prior to the guilty pleas.
The final factor was Mr Rayapen's positive antecedents. Again, this was a matter relevant to the sentencing discretion as a whole, but it was not exceptional. It is commonplace that those who commit sexual offences have no prior criminal record and have previously been of good character.
As we noted above, we have not overlooked the fact that the sentencing judge found that it was the combination of these factors that gave rise to exceptional circumstances. Nevertheless, even combining all of those factors we are unable to see how they could be capable of being described as giving rise to exceptional circumstances.
In this context there is one final point to be made. Other than the fourth factor (which in our view was quite incapable of in any way making this an exceptional case), all of the factors identified by the sentencing judge were personal to Mr Rayapen. That is significant because, as this Court has made clear, personal circumstances are of comparatively less weight in dealing with sexual offences. As this Court recently said in The State of Western Australia v HNU:[92]
Personal circumstances are of comparatively less weight in dealing with sexual offences. That does not, of course, mean that personal circumstances are irrelevant. It does mean that personal circumstances are unlikely to justify a sentence which is very low having regard to the serious objective circumstances of an offence. The dominant sentencing considerations for sexual offences are punishment and general and specific deterrence.
[92] The State of Western Australia v HNU [2023] WASCA 6 (The State of Western Australia v HNU) [64] (Beech, Vaughan & Hall JJA).
The relatively low weight to be afforded to personal circumstances in a case such as the present underscores the difficulty of reaching a conclusion that there were exceptional circumstances sufficient to justify a mercifully lenient sentence for an objectively serious offence, when those exceptional circumstances are said to arise almost entirely from matters personal to the offender.
The sentencing judge was wrong to conclude that there were exceptional circumstances capable of justifying the exercise of mercy in the sense described in the authorities. And his Honour was wrong to conclude that, having regard to all relevant sentencing factors, there was a proper basis for imposing a sentence other than immediate imprisonment.
Leave to appeal should be granted in relation to ground 3 and ground 4. Both grounds should be upheld.
Grounds 5 and 6 – manifest inadequacy and totality
Grounds 5 and 6 are concerned with the length of the sentence for the offence of sexual penetration without consent and for the total effective sentence, rather than the decision to suspend those terms of imprisonment.
Ground 5 contends that the individual sentence of 2 years imprisonment for the offence of sexual penetration without consent was manifestly inadequate and ground 6 contends that the total effective sentence of 2 years imprisonment for both offences was manifestly inadequate.
Grounds 5 and 6 – legal principles
Both grounds 5 and 6 allege implied error.
The general principles governing appeals contending that error should be inferred on the basis that an individual sentence is manifestly excessive or inadequate, or that the total effective sentence infringes the totality principle, are well established. Those principles were summarised in Kabambi v The State of Western Australia:[93]
(1) Sentencing is a discretionary exercise. An appellate court can intervene only if the appellant demonstrates either an express or implied material error. Express error involves acting on a wrong principle, for example by mistaking the law or facts or taking into account an irrelevant matter. Implied error arises where the end result is so unreasonable or unjust that the court must conclude that a substantial wrong has occurred. Thus, an appellate court cannot substitute its own opinion for that of the sentencing court merely because the appellate court would have exercised a sentencing discretion differently.
(2) In order to determine whether a sentence for an individual offence is manifestly excessive or inadequate, the offence should be viewed in light of the maximum sentence prescribed by law for the crime, the standards of sentencing customarily imposed with respect to it, the place that the criminal conduct occupies in the scale of seriousness of crimes of that type, and the offender's personal circumstances.
(3) The first limb of the totality principle requires that the total effective sentence imposed on an offender who has committed multiple offences bears a proper relationship to the overall criminality involved in all of the offences (including those, if any, in respect of which the offender is still serving or is yet to serve a term of imprisonment), viewed in their entirety, having regard to all relevant facts and circumstances including those referable to the offender personally (and including, for example, the desirability of accommodating any wish to rehabilitate), all relevant sentencing factors and the total effective sentences imposed in comparable cases.
(4) The range of sentences customarily imposed for a crime does not establish the range of a sound exercise of the sentencing discretion. Sentences customarily imposed in comparable cases provide a yardstick or reference point for ensuring broad consistency in sentencing, bearing in mind the scope for significant variations in relevant sentencing factors, and that there is no single correct sentence. What is important is the unifying principles which sentences imposed in comparable cases reveal and reflect.
(5) When this court dismisses an appeal against sentence and when it resentences on a successful appeal, its decision does not fix the upper or lower limit of the range.
(6) Where there is a challenge on totality grounds, the severity of a sentence imposed on an individual count generally falls to be assessed in light of the sentences imposed in respect of the other counts and its contribution to the total effective sentence. A heavy individual sentence (which is not manifestly excessive) may be softened by an order that it be served concurrently with sentences imposed in relation to the other counts. A relatively light sentence (which is not manifestly inadequate) may, as a practical matter, have increased severity if it is ordered to be served cumulatively. The real question is whether the total effective sentence is unreasonable or plainly unjust.
[93] Kabambi v The State of Western Australia [2019] WASCA 44 (Kabambi) [21] (Buss P, Mitchell & Pritchard JJA).
There is no tariff for offences of sexual penetration without consent. As Steytler P observed in The State of Western Australia v Akizuki, the circumstances of sexual offending, and of sexual offenders, are almost infinitely variable, such that the sentence imposed in one case can provide only limited guidance in other cases.[94] The wide variety of offending, offenders and victims in cases of sexual penetration without consent is reflected in the broad range of sentences customarily imposed in previous cases.
[94] The State of Western Australia v Akizuki [2008] WASCA 267; (2008) 192 A Crim R 373 (Akizuki ) [68] (Steytler P).
An important matter of principle, firmly established by many decisions of this Court, is that there is no hierarchy of sexual penetration. That is to say, there is no a priori starting point that one category of sexual penetration in s 325 of the Criminal Code is inherently more serious than another. The seriousness of every offence of unlawful sexual penetration must be determined by its own individual circumstances.[95]
[95] C v The State of Western Australia [2006] WASCA 261 [35] (Wheeler JA); Akizuki [68] (Steytler P); Musgrave v The State of Western Australia [2021] WASCA 67 (Musgrave)) [6] (Quinlan CJ), [126] (Buss P), [284] - [286] (Pritchard JA); The State of Western Australia v HNU [67] - [70] (Beech, Vaughan & Hall JJA).
These principles have the consequence that care must be taken in consideration of the range of sentences customarily imposed for the offence of sexual penetration without consent. Indeed in a passage that has been repeated many times in the decisions of this Court, Steytler P in Akizuki said that '[b]ecause the circumstances of sexual offending and sexual offenders are so variable, nothing will be achieved by specifying a range of sentences customarily imposed' and, significantly, that '[n]or will anything be achieved by specifying a different starting point for each category of sexual penetration without consent'.[96]
[96] Akizuki [68] (Steytler P).
This is not to suggest, of course, that sentences customarily imposed for sexual penetration without consent are irrelevant. As the principles set out in Kabambi make clear, '[s]entences customarily imposed in comparable cases provide a yardstick or reference point for ensuring broad consistency in sentencing'.[97] Nevertheless, perhaps in cases of sexual penetration without consent even more than most, sentences customarily imposed cannot be thought of as establishing a range for a sound exercise of the sentencing discretion.
[97] Kabambi [21(4)] (Buss P, Mitchell & Pritchard JJA.
Moreover, the absence of a hierarchy of sexual penetration is such that there is a risk in referring only to the range customarily imposed for one form of sexual penetration compared to another. In the present case, for example, counsel for Mr Rayapen referred to cases demonstrating that a sentence of 15 months to 3 years immediate imprisonment would not be unusual for a single count of digital penetration of the vagina.[98] Those cases, however, need to be seen in the broader context of the sentences customarily imposed in all cases of sexual penetration contrary to s 325 of the Criminal Code, for which sentences of 5 to 6 years imprisonment are not unusual.[99] To confine consideration of the range of sentences customarily imposed to the particular category of sexual penetration as the yardstick for broad consistency would, contrary to the principles we have referred to, be to introduce a de facto hierarchy of sexual penetration.
[98] Appeal ts 81. See the cases referred to by Buss P in Musgrave [123].
[99] See Mehta v The State of Western Australia [2023] WASCA 24 [177] (Quinlan CJ, Mazza & Beech JJA).
We turn then to the application of these principles in the present case.
Grounds 5 and 6 – disposition
In our view, having regard to the maximum penalty of 14 years imprisonment for the offence of sexual penetration without consent, the objective seriousness of that offence in the present case, the matters personal to Mr Rayapen and all relevant sentencing principles, the sentence of imprisonment for that offence of 2 years imprisonment was unreasonable and plainly unjust. The sentence was not commensurate with the seriousness of the offence, as required by s 6(1) of the Sentencing Act.
We would therefore uphold ground 5. It follows that we would also uphold ground 6, as the total effective sentence (also 2 years imprisonment) did not bear a proper relationship to the overall criminality involved in all of the offences. It failed to reflect the important sentencing considerations of punishment and general deterrence.
Our reasons for those conclusions are as follows.
As to the objective seriousness of the offence, the offence in the present case, while not in the most serious category, was nevertheless a serious case of its kind. The victim was in a vulnerable position, affected by alcohol and, at least on the verge of sleep, when Mr Rayapen began the offending conduct. Prior to the offence of sexual penetration, Mr Rayapen had persistently touched the victim without her consent, with sufficient force to cause her bruising. Her repeated attempts to prevent that conduct, by physically resisting Mr Rayapen and saying 'no', left no ambiguity as to her wish to be left alone. Notwithstanding those attempts, Mr Rayapen persisted, escalating to the offence of unlawful sexual penetration.
Not only is there no doubt that the victim did not consent to the sexual penetration, the undisputed facts for the purposes of sentence make clear that Mr Rayapen knew full well that she did not consent to that sexual penetration. Whatever might have been his memory or interpretation of the events afterwards, at the time of the offending Mr Rayapen knew perfectly well that the victim did not consent to being sexually penetrated. When the victim said 'no', for the sixth time, Mr Rayapen did not stop. Rather, and tellingly, he asked her 'why?', adding 'you're so wet', a comment that was, in context, demeaning and belittling of the victim and her autonomy.
As we have noted above, while Mr Rayapen's offending lacked premeditation (a matter referred to by the sentencing judge) many, perhaps the overwhelming majority of, sexual offences are opportunistic and situational.[100] Most sexual assaults are not premeditated or committed by complete strangers; they are committed by family members, friends, colleagues or, as in this case, new acquaintances. General deterrence requires that opportunistic sexual offending by such persons result in sentences that denounce and condemn such conduct and send the message to the community that it will not be tolerated.
[100] See [219] above.
Against the objective seriousness of the offence, as this Court reiterated in The State of Western Australia v HNU, Mr Rayapen's personal circumstances carried comparatively less weight.[101] Those circumstances were not irrelevant. The combined effect of Mr Rayapen's previous good character (including lack of convictions), his nascent remorse, his previous good works, his steps towards rehabilitation, and his low risk of recidivism, was properly to be weighed in the balance and given real credit. The effect of those matters personal to Mr Rayapen, in addition to his guilty plea, justified, and justify, a reduction in the sentence that might otherwise be appropriate. They could not, however, eclipse the seriousness of the offence and justify a sentence that was manifestly inadequate and did not achieve the purposes of sentencing.
[101] See [226] above.
As to comparable cases, given what we have said above as to the utility of such cases, it is not necessary to address the previous cases in great detail. Nor did the parties seek to rely upon a large number of comparable cases. It is apparent from the range of sentences customarily imposed for sexual penetration generally, that the sentence of 2 years imprisonment in this case sat at, or near, the bottom of a very wide range.
As the State submitted, the circumstances of the present case bear certain similarities with the circumstances in Musgrave. In both cases the victim had allowed the offender, who she had only recently met, to sleep in her bedroom. As in the present case, the offender in Musgrave committed an offence of indecent assault by touching the victim's breast and sexually penetrated the victim's vagina with his fingers after they had gone to bed (albeit that in Musgrave, the offender commenced doing so when the victim was still asleep). The offender in Musgrave, at 23 years of age at the time of the offending, was slightly younger than Mr Rayapen. Unlike Mr Rayapen, the offender in Musgrave had a prior criminal record, although, at the same time, he had experienced deprivations in his life deserving of mitigation that Mr Rayapen had not. The offender in Musgrave had unresolved trauma from sexual abuse he had suffered as a teenager and a history of mental health issues that included lengthy periods of hospitalisation in a number of mental health facilities.
The offender in Musgrave was sentenced, after trial, for the count of sexual penetration without consent to 3 years and 6 months imprisonment (which was also the total effective sentence for both offences). The Court refused leave to appeal on the ground of manifest excess. The sentence was, therefore, not even arguably excessive.[102]
[102] As to which see Aung v The State of Western Australia [2022] WASCA 175 [45] (Beech, Vaughan & Hall JJA).
Even allowing for the late plea of guilty in the present case, it is apparent that the length of the term of imprisonment in the present case was significantly less than, and not broadly consistent with, that in Musgrave.
Similarly, the State referred to The State of Western Australia v Vartolo[103] in which the offender was sentenced by this Court to a total effective sentence of 3 years and 6 months imprisonment for two acts of sexual penetration on a sleeping victim. The offender in that case was 25 years old at the time, had no prior criminal record of any relevance and pleaded guilty prior to the victim needing to prepare to give evidence. Allowing for the differences in the two cases, the sentence imposed in the present case was not, in our view, broadly consistent with that in Vartolo.
[103] The State of Western Australia v Vartolo [2015] WASCA 53 (Vartolo).
Of course, as we have observed a number of times, Musgrave and Vartolo did not in any way determine or dictate the exercise of the sentencing discretion in the present case. They neither provide an upper or a lower range of a sound exercise of sentencing discretion. Nevertheless, they do confirm our own conclusion, as a matter of principle, that the sentence imposed by the sentencing judge for the offence of sexual penetration without consent in the present case was manifestly inadequate. The manifestly inadequate sentence for that offence thereby led to a manifestly inadequate total effective sentence for Mr Rayapen's offending as a whole.
Leave to appeal should be granted in relation to ground 5 and ground 6. Both grounds should be upheld.
Residual discretion
Pursuant to s 31(4) of the Criminal Appeals Act 2004 (WA), this Court has a discretion to dismiss a State appeal against sentence even though a ground or grounds of appeal have been established. The onus is on the State to negate any reason why the residual discretion of this Court not to interfere should be exercised.
Mr Rayapen invoked the residual discretion in his written submissions but did not advance any particular matter in support of the contention that the Court should dismiss the appeal notwithstanding the errors that have been established.[104]
[104] AB 30, 49.
In the present case we are positively satisfied that we should not exercise the residual discretion to dismiss the appeal. The sentence imposed by the sentencing judge was wrong in both type and duration. To allow the sentence to stand would be contrary not only to the demands of justice in this case but to proper sentencing standards, whose maintenance it is the responsibility of this Court to uphold. The appeal must be allowed to ensure maintenance of those standards.
Resentencing
This Court has all the necessary material to resentence Mr Rayapen, including additional evidence adduced by way of affidavit of facts that have arisen since Mr Rayapen was sentenced on 7 December 2022. We have received and considered that material which confirms Mr Rayapen's ongoing volunteer work, both with a financial institution and with charitable and social services institutions. That he has continued in those activities is to his credit.
The material also attests to Mr Rayapen's ongoing psychological symptoms, his engagement with therapy and the protective measures he has taken. Those protective measures include his relationship with his partner, to whom he is now engaged. Mr Rayapen's strong network of significant relationships bode well for his future rehabilitation. The Court also received further evidence of abusive comments and messages on social media directed not only to Mr Rayapen, but vile abuse directed at his fiancée. That online abuse is to be deprecated in the strongest possible terms.
The circumstances and seriousness of the offences have been set out above in detail, as have all of Mr Rayapen's personal circumstances.
In all of the circumstances, in our view, it is appropriate to reduce the head sentence by 10% for Mr Rayapen's pleas of guilty. That discount, in our view, strikes the appropriate balance by recognising the benefits of the pleas of guilty, particularly the benefit to the victim in not being required to give evidence, while sending the message to others that a plea of guilty that comes shortly prior to trial, with the attendant cost to the State and impact upon the victim, cannot be expected to produce a greater discount.
Mr Rayapen's previous good character (including lack of convictions), his remorse, his previous and continuing good works, his steps towards rehabilitation, and his low risk of recidivism further reduce the sentence that would otherwise have been imposed.
In all of the circumstances the appropriate sentences are a sentence of 12 months immediate imprisonment for the offence of aggravated indecent assault and 3 years and 3 months immediate imprisonment for the offence of sexual penetration without consent.
For reasons of totality, the sentence of 12 months imprisonment on count 2 should be served concurrently with the sentence of 3 years and 3 months imprisonment on count 4. The total effective sentence is, accordingly, 3 years and 3 months immediate imprisonment.
Mr Rayapen should be made eligible for parole. The effect of the sentence is that Mr Rayapen will be eligible for parole after he has served 1 year and 7 and a half months from 12 April 2023. Whether he is released is a matter for the Prisoners Review Board.
The lifetime violence restraining order made by the sentencing judge is not set aside and will remain in place.
Conclusion
For the foregoing reasons, there should be orders as follows:
(a)Leave to appeal is granted on grounds 1 to 6.
(b)The appeal is allowed.
(c)The sentences imposed by Levy DCJ are set aside.
(d)The respondent's application in the appeal to adduce additional evidence for the purposes of resentencing is granted.
(e)The respondent is resentenced on counts 2 and 4 in District Court Indictment 426 of 2021 as follows:
(i)on count 2 (aggravated indecent assault), to 12 months immediate imprisonment; and
(ii)on count 4 (sexual penetration without consent), to 3 years and 3 months immediate imprisonment.
(f)The new sentence for count 4 is the head sentence and the new sentence for count 2 is to be served concurrently with the new sentence for count 4.
(g)The respondent is eligible for parole.
I certify that the preceding paragraphs comprise the reasons for decision of the Supreme Court of Western Australia.
SC
Associate to the Honourable Chief Justice Quinlan
12 APRIL 2023
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