The State of Western Australia v Vartolo
[2015] WASCA 53
•18 MARCH 2015
THE STATE OF WESTERN AUSTRALIA -v- VARTOLO [2015] WASCA 53
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2015] WASCA 53 | |
| THE COURT OF APPEAL (WA) | |||
| Case No: | CACR:113/2014 | 3 FEBRUARY 2015 | |
| Coram: | McLURE P BUSS JA MAZZA JA | 18/03/15 | |
| 20 | Judgment Part: | 1 of 1 | |
| Result: | Appeal allowed | ||
| B | |||
| PDF Version |
| Parties: | THE STATE OF WESTERN AUSTRALIA SIMONE VARTOLO |
Catchwords: | Criminal law State appeal against sentence Express error Sentence manifestly inadequate Breach of first limb of totality principle Sentence failed to reflect the seriousness of the individual offences and the totality of the criminality Offending aggravated by offenders' complete disregard for complainant Offender lacked any evidence of remorse |
Legislation: | Criminal Appeals Act 2004 (WA), s 31, s 41(4)(b) Criminal Code (WA), s 325, s 378 Restraining Orders Act (WA), s 63A Sentencing Act 1995 (WA), s 32 |
Case References: | Barbaro v The Queen [2014] HCA 2; (2014) 88 ALJR 372 Chan v The Queen (1989) 38 A Crim R 337 Fernandes v The State of Western Australia [2009] WASCA 227 FST v The State of Western Australia [2011] WASCA 220 Hili v The Queen [2010] HCA 45; (2010) 242 CLR 520 House v The King (1936) 55 CLR 499 Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665 Mearns v The State of Western Australia [2009] WASCA 153 Miles v The State of Western Australia [2010] WASCA 93 Munda v The State of Western Australia [2013] HCA 38; (2013) 249 CLR 600 Powell v The Queen (Unreported, WASC, Library No 8928, 6 June 1991) R v Clark [2000] WASCA 229 R v Cleak [2004] WASCA 72 R v Podirsky (1989) 43 A Crim R 404 Roffey v The State of Western Australia [2007] WASCA 246 The State of Western Australia v Akizuki [2008] WASCA 267; (2008) 192 A Crim R 373 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : THE STATE OF WESTERN AUSTRALIA -v- VARTOLO [2015] WASCA 53 CORAM : McLURE P
- BUSS JA
MAZZA JA
- Appellant
AND
SIMONE VARTOLO
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram : MARTINO CJDC
File No : IND 1387 of 2013
Catchwords:
Criminal law - State appeal against sentence - Express error - Sentence manifestly inadequate - Breach of first limb of totality principle - Sentence failed to reflect the seriousness of the individual offences and the totality of the criminality - Offending aggravated by offenders' complete disregard for complainant - Offender lacked any evidence of remorse
Legislation:
Criminal Appeals Act 2004 (WA), s 31, s 41(4)(b)
Criminal Code (WA), s 325, s 378
Restraining Orders Act (WA), s 63A
Sentencing Act 1995 (WA), s 32
Result:
Appeal allowed
Category: B
Representation:
Counsel:
Appellant : Mr J McGrath SC
Respondent : Mr C L S Miocevich
Solicitors:
Appellant : Director of Public Prosecutions (WA)
Respondent : C & G Miocevich Law Offices Pty Ltd
Case(s) referred to in judgment(s):
Barbaro v The Queen [2014] HCA 2; (2014) 88 ALJR 372
Chan v The Queen (1989) 38 A Crim R 337
Fernandes v The State of Western Australia [2009] WASCA 227
FST v The State of Western Australia [2011] WASCA 220
Hili v The Queen [2010] HCA 45; (2010) 242 CLR 520
House v The King (1936) 55 CLR 499
Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665
Mearns v The State of Western Australia [2009] WASCA 153
Miles v The State of Western Australia [2010] WASCA 93
Munda v The State of Western Australia [2013] HCA 38; (2013) 249 CLR 600
Powell v The Queen (Unreported, WASC, Library No 8928, 6 June 1991)
R v Clark [2000] WASCA 229
R v Cleak [2004] WASCA 72
R v Podirsky (1989) 43 A Crim R 404
Roffey v The State of Western Australia [2007] WASCA 246
The State of Western Australia v Akizuki [2008] WASCA 267; (2008) 192 A Crim R 373
1 McLURE P: I agree with Mazza JA.
2 BUSS JA: I agree with Mazza JA.
3 MAZZA JA: This is a State appeal against sentence.
4 The respondent was charged on indictment in the District Court with two counts of sexual penetration without consent, contrary to s 325 of the Criminal Code (WA). Each of these offences was alleged to have occurred in Northbridge in the early hours of 27 April 2013 against the same victim, H.
5 On 7 March 2014, the respondent pleaded guilty to the charges. The plea was entered after a trial date had been set. He was remanded for sentence to 20 May 2014. On that day, he pleaded guilty to a count of stealing, contrary to s 378 of the Criminal Code, which he requested the court to deal with pursuant to a notice under s 32 of the Sentencing Act 1995 (WA). This offence occurred shortly after the sexual offences.
6 Later that day, Martino CJDC sentenced the respondent to 1 year's immediate imprisonment on count 1 and 2 years' immediate imprisonment on count 2. The respondent was fined $250 for the stealing offence. His Honour ordered that the sentences of imprisonment be served concurrently. The respondent was made eligible for parole. Thus the total effective sentence imposed was 2 years' immediate imprisonment and a fine of $250. His Honour also made a lifetime violence restraining order against the respondent pursuant to s 63A of the Restraining Orders Act.
7 The State's appeal concerns only the sentences of imprisonment. Originally there were two grounds of appeal. Ground 1 alleged that the individual sentences for the offences of sexual penetration without consent were manifestly inadequate. Ground 2 alleged that total effective sentence of imprisonment infringed the first limb of the totality principle. Leave to appeal was granted in respect of these grounds.
8 At the hearing of the appeal, without opposition from the respondent, the State was given leave to add two further grounds of appeal (appeal ts 10) which I will refer to as grounds 3 and 4, being:
3. The sentencing judge erred in fact in finding that the respondent held an awareness and accepted the nature and seriousness of the offending.
4. The sentencing judge erred in fact in finding that the respondent accepted responsibility for the offending and consequently had commenced rehabilitation.
9 For the reasons which follow, I would allow the State's appeal, set aside the sentences imposed at first instance and resentence the respondent.
The facts of the offending
10 The facts of the offences are as follows.
11 On the evening of Friday 26 April 2013, H was drinking with her boyfriend and another person at their home unit in Northbridge. H's boyfriend asked her if she wanted to go into town with him and his friend. She told him that she was too drunk to go out. H's boyfriend went out with his friend; meanwhile she went to bed and fell asleep.
12 At about 1 am on Saturday 27 April 2013, H's boyfriend returned home, in an intoxicated state, with the respondent. The respondent was, at the time, residing in a backpackers hostel in Northbridge. Exactly how the two men met is not known. What is clear is that the respondent was a complete stranger to H.
13 H's boyfriend went into the bathroom in his home and fell asleep. The respondent entered the bedroom in which H was sleeping. There, he took off his clothes and lay beside H, in a spooning position. The respondent began to fondle her breasts and then used his fingers to rub H's genitals, before penetrating her vagina with his fingers (count 1). The respondent continued to rub H's vagina before taking his erect penis and inserting it into H's vagina. He then moved on top of her and engaged in sexual intercourse (count 2).
14 At this point, H began to wake up. Initially, she thought that it was her boyfriend who was having sex with her, but she soon realised that she was wrong. H asked the respondent where her boyfriend was. The respondent continued having intercourse with H, until she pushed him off her, and went to find her boyfriend.
15 H located her boyfriend asleep in the bathroom. He awoke and she informed him of what had just happened. He asked the respondent to leave. The respondent then walked into the lounge room, where he stole a laptop computer and an iPod. He then walked out of the unit.
16 On 28 April 2013, the respondent was arrested. He was interviewed by police officers. Initially, the respondent denied being at a house in Northbridge on the night in question. Essentially, he told the police that he spent the evening in question drinking and smoking synthetic cannabis with others and that eventually he went to sleep in the hostel at which he was staying.
17 Once the investigating officers told him that CCTV product contradicted his account and that a search for his clothing could be undertaken, the respondent changed his story. He said that he was approached by a man (H's boyfriend) that he did not know, who invited him to come over to his house to have sex with two women, but later he said to have sex with one woman. The respondent said that he 'went with it' (AB 104). The respondent said that when the man showed him H, who was fully clothed and asleep, he lay next to her and he began to fondle her breasts and touch her genital area. He claimed that H 'was keen', 'faking to be asleep' and that 'she was liking it' (AB 106). He admitted penetrating her vagina with his penis. He said that she pushed him off and asked him where her boyfriend was. The respondent was asked to leave by H's boyfriend. The respondent said that he had done nothing wrong up to that point, but he agreed it was wrong to steal the laptop computer and the iPod.
18 The respondent said that H knew that he was not her boyfriend (AB 113). He said that she asked him who he was and when he replied that he was 'Simone from the backpackers' (AB 114) she pushed him off her. The respondent repeatedly told the police that he had done nothing wrong and that, in effect, H was his willing sexual partner. The respondent suggested to the police that he may have been set up by H and her boyfriend. At one point in the interview, he described H as a 'dumb bitch' and he accused her of 'lying' (AB 141).
19 H was diagnosed with chlamydia after the offences were committed. There was insufficient evidence to establish, and the respondent was not sentenced on the basis, that he was responsible for H's infection.
The respondent's antecedents
20 The respondent was 25 years of age at the time of the offending and 26 at the time he was sentenced. He had a minor criminal history and no prior record of offending of any relevance. He apparently had a happy childhood. He left school at the age of 16 years and has, since that time, been constantly employed, most recently as a personal trainer. His mother has been and remains very supportive of him. At the time of the commission of the offences, he was using synthetic cannabis and was binge drinking. A psychological assessment carried out by Ms Roxanne Buktenica, dated 15 May 2014, suggested that the respondent was 'not currently suffering from any psychopathology and that he did not present with any symptoms of a major psychiatric disorder'. Character references tendered on behalf of the respondent spoke favourably of him, noting, in particular, good works he had done for others.
The reports - insight, remorse and rehabilitation
21 His Honour had before him Ms Buktenica's psychological report and a pre-sentence report, dated 16 May 2014.
22 The pre-sentence report author noted that the respondent's pleas of guilty were primarily motivated by a desire to obtain the maximum possible discount for those pleas and that the respondent:
… seemed unwilling to accept full culpability and proceeded to both minimise and externalise his offending. [The respondent] conveyed a naïve comprehension of the seriousness of the charges and did not accept that he caused any detriment to [H].
23 So far as the issue of consent was concerned, the respondent told the author that 'I'd been led to believe by a stranger that it was okay to have sex with his missus'.
24 The author noted that the respondent blamed H for 'falsifying a police report' and overreacting to what the respondent referred to as 'an honest mistake'. He wrote that the respondent sought to normalise his offending, by stating to him that 'everyone does it'. The author remarked that the respondent consistently demonstrated little or no victim empathy and that his level of remorse was 'seemingly abridged by the belief that he had not committed an offence'.
25 The findings of the pre-sentence report author were encapsulated in this way:
[The respondent's] plea of guilty appears motivated by the prospect of an anticipated sentence discount, for he constantly demonstrated denial and failed to accept culpability for his offending. Unsurprisingly [the respondent] appeared to lack victim empathy and did not accept that his offending caused [H] any harm.
26 Ms Buktenica made observations which were consistent with those made in the pre-sentence report. In discussing the offences with the respondent, Ms Buktenica noted that:
… [the respondent] had difficulties accepting full responsibility for his behaviour and tended to minimise and externalise blame to others. His description is not consistent with the statement of material facts and [the respondent] denied he committed an offence. In discussing why [the respondent] pled guilty if he does not believe he committed an offence, [the respondent] reflected that he wanted his court issues to be over as quickly as possible and he hoped pleading guilty would reduce his sentence.
27 With respect to the commission of the indictable offences, the respondent, in part, justified his conduct by stating 'she didn't say no'. The respondent suggested to Ms Buktenica 'anyone would have done the same'. Ms Buktenica said that the respondent suggested that the only part of his behaviour that was criminal was the stealing of the computer. The respondent expressed the belief that H would not have called the police if he had not taken the computer.
28 As to the respondent's attitude towards the offending, Ms Buktenica wrote:
In general [the respondent] had difficulties accepting full responsibility for his behaviour and continually minimised and justified his behaviour. He showed no understanding of victim empathy or remorse and maintained that his behaviour was 'normal' and that he had not committed a crime (other than stealing the laptop).
29 Ms Buktenica administered a static-99 risk assessment. The respondent's score placed him in the moderate to low risk category relative to other adult male sex offenders. However, Ms Buktenica noted an absence of significant risk factors, such as an extended pattern of offending or an entrenched drive for sexual offending. She also noted that the shame and embarrassment associated with the respondent's current offences may reduce the likelihood of him reoffending. Ms Buktenica observed that the respondent's denial of the sexual aspect of his behaviour may shift post-sentencing.
The victim impact statement
30 No objection was taken to the victim impact statement. As a result of the offences, H has been left with feelings of hopelessness and fear. She stated that she had lost confidence in herself and found it difficult to trust new people. She now suffers from post-traumatic stress disorder and depression. H, who, at the time of the offence had only recently arrived in Australia with her boyfriend, has now returned to her country of origin. Her return has had a negative financial impact upon her and she has found it difficult to obtain employment.
The plea in mitigation
31 Defence counsel did not dispute that the respondent had made the statements attributed to him in the pre-sentence and psychological reports.
32 Defence counsel told his Honour that the respondent, having been told of the contents of the victim impact statement, was 'troubled' and 'shocked' that his actions had resulted in such a profound effect upon H. She asserted that the respondent took responsibility for his actions and was ashamed by what he had done.
33 Defence counsel emphasised the respondent's pleas of guilty, the support of his mother, his prior good character and the absence of violence in the commission of the sexual offences. She submitted that the respondent would benefit from individual psychological counselling. She further submitted that the appropriate disposition was an intensive supervision order or, alternatively, a suspended imprisonment order.
The State's sentencing submissions
34 The State submitted that the only appropriate disposition was immediate imprisonment.
35 The State did not accept that the respondent:
(a) was remorseful;
(b) appreciated the seriousness and criminal nature of his offending; and
(c) had displayed any victim empathy.
36 The State submitted that the absence of these factors increased the weight that should be given to personal deterrence and the protection of the community (ts 29).
The sentencing remarks
37 His Honour characterised the offences as serious. While the offending was not aggravated by the use of violence or threats of violence, the respondent took advantage of a sleeping woman. His Honour said that it was to the respondent's credit that he ceased committing the offences when H woke up and pushed him off. His Honour acknowledged the serious consequences for H.
38 His Honour observed that the respondent had insight into the problems that alcohol and synthetic cannabis cause and that he had ceased to use synthetic cannabis and to consume alcohol to excess (ts 32).
39 The learned sentencing judge had regard to the respondent's age, favourable antecedents and pleas of guilty. As to the pleas, his Honour observed that, although they were not entered at the first reasonable opportunity, they were entered in sufficient time to avoid H having to prepare to give evidence. His Honour discounted the sentence for the guilty pleas by 15% pursuant to s 9AA of the Sentencing Act 1995 (WA). His Honour described the pleas of guilty as showing 'a willingness to assist the justice process and that you accept responsibility for your offending behaviour' (ts 33).
40 In what I take to be a reference to the respondent's insight into his offending, his Honour said:
You have difficulty appreciating fully the seriousness of your offending behaviour, but to your credit you are determined to address it. You have some insight and I'm sure that with further time, you will develop further insight (ts 33).
41 His Honour said that he had regard to the positive steps the respondent had taken to rehabilitate himself and that the respondent was 'motivated to continue rehabilitation' (ts 34).
42 His Honour expressed the need for the sentences to reflect both personal and general deterrence and the need to protect women from offending of this type.
43 His Honour rejected a submission that a suspended term of imprisonment should be imposed, having regard to the seriousness of the offending and the need for personal and general deterrence (ts 35).
Appellate sentencing principles
44 An appellate court may not substitute its own opinion for that of the sentencing judge merely because it would have exercised the discretion differently: Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665 [15]. This court can only intervene if the appellant demonstrates that the court at first instance made a material error, either express or implied. There are special principles applicable to prosecution appeals. They are well-established and need not be repeated, bearing in mind that the principle of double jeopardy which applied to State appeals has now been abolished: s 41(4)(b) of the Criminal Appeals Act2004 (WA).
45 The grounds of appeal allege both implied (grounds 1 and 2) and express (grounds 3 and 4) errors.
46 With respect to the allegations of implied error, before an individual sentence can be found to be manifestly inadequate, or the total effective sentence found to have infringed the totality principle, it must be established that the sentence is unreasonable or plainly unjust: House v The King (1936) 55 CLR 499 and Barbaro v The Queen [2014] HCA 2; (2014) 88 ALJR 372 [26].
47 The orthodox approach to the question of manifest inadequacy is to examine the individual sentence, having regard to the maximum sentence for the offence, the gravity of the offending conduct in the scale of seriousness, sentences imposed in other appellate cases and the personal circumstances of the offender: Chan v The Queen (1989) 38 A Crim R 337, 342; Munda v The State of Western Australia [2013] HCA 38; (2013) 249 CLR 600 [33].
48 The first limb of the totality principle requires that the total effective sentence must bear a proper relationship to the overall criminality involved in all the offences, viewed in their entirety and having regard to the circumstances of the case, including those referable to the offender personally: Roffey v The State of Western Australia [2007] WASCA 246 [24].
49 With respect to an allegation of express error, the error must be material, that is, one that affects or is capable of affecting the sentence that was actually imposed: Fernandes v The State of Western Australia [2009] WASCA 227 [9] and [10].
Alleged express errors - grounds 3 and 4
50 It is convenient to deal with the State's allegations of express error first. These grounds may be dealt with together.
51 In substance, grounds 3 and 4 attack the learned sentencing judge's findings with respect to the respondent's insight, acceptance of responsibility and rehabilitation.
52 As I have already indicated, his Honour made findings favourable to the respondent with respect to his insight into his offending, acceptance of responsibility and rehabilitation.
53 With great respect to his Honour, I am unable to discern a sufficient evidential basis for those findings. The findings were inconsistent with the contents of the pre-sentence and psychological reports and with what the respondent said in his interview with the police.
54 It is not possible to see how the respondent had insight into his offending in the face of his statements that he did not think that he had done anything wrong, apart from stealing the laptop computer and the iPod.
55 His Honour's finding that the pleas of guilty showed an acceptance of responsibility is inconsistent with the respondent's statements that he pleaded guilty only to receive a lower sentence.
56 As to rehabilitation, it is clear from what the respondent said in his interview with the police and then, more than a year later, when he was spoken to in preparation for the court-ordered reports, that he harbours the same aberrant attitudes and beliefs which underpinned his offending.
57 On the material before the primary court, the respondent did not understand nor acknowledge the criminality of his actions. He appears to believe that it was permissible to engage in sexual activity with an unconscious woman because her partner said that he could. The respondent normalised his behaviour, as reflected in his view that anyone in his position would have done what he did. He believed that no complaint would have been made had he not stolen the laptop computer and the iPod. The respondent referred to H in his police interview in insulting terms and accused her of lying and perhaps, along with her partner, setting him up. There was no evidence of remorse and no positive finding by his Honour to this effect.
58 It is relevant to the respondent's prospects of rehabilitation that he has no prior record of offending and he is of previous good character. However, it seems to me that in this case true rehabilitation requires, at least, a sincere acknowledgement of his aberrant attitudes and beliefs, and action to remedy them. There was no evidence of these things in the material before his Honour.
59 Insofar as defence counsel made submissions from the bar table suggesting that the respondent took responsibility for his offending and had empathy for H, those submissions were challenged by the State. The respondent did not adduce evidence to prove them and they ought not have been accepted.
60 For these reasons, I have come to the view that his Honour made the express errors referred to in grounds 3 and 4. The errors are material to the exercise of the sentencing discretion. As a consequence of them, his Honour sentenced the respondent on an unduly favourable basis.
61 Leave to appeal should be granted with respect to grounds 3 and 4 and they should be upheld.
Alleged implied errors - grounds 1 and 2
62 I now turn to consider the allegations of implied error contained in grounds 1 and 2. Ground 1 alleges that the individual sentences were manifestly inadequate. Ground 2 alleges that the total effective sentence of 2 years' imprisonment infringed the first limb of the totality principle. I would decide these grounds in the context of the express errors identified in grounds 3 and 4.
63 The maximum penalty for each of the offences committed by the respondent is 14 years' imprisonment.
64 The circumstances of each offence were undoubtedly serious. The facts speak for themselves. There was simply no basis upon which the respondent could honestly or reasonably have believed that H was a consensual party to sexual activity with him. Insofar as he may have acted on the basis that H's boyfriend said he could have sex with H, it was not for him to extend such an invitation. Nor was the respondent justified in acting upon it. When the respondent entered the bedroom and took off his clothes, it was obvious to him that H was asleep and not in any position to consent. The respondent took advantage of this; to fondle her breasts, touch her genital area and then engage in the acts of sexual penetration. He did not immediately desist when H awoke, although he did desist after H pushed him off her.
65 While it is true that the respondent did not inflict violence or threaten violence towards H, such behaviour was unnecessary given her unconscious state. What is obvious is that the respondent took advantage of her highly vulnerable state, which meant that she could not resist, and he engaged in behaviour that was a gross invasion of her right to bodily integrity and autonomy. The absence of violence or threats of violence is not mitigating, it merely constitutes an absence of a further aggravating factor.
66 As the victim impact statement shows, the offences have had a significantly adverse and debilitating effect upon H and it may be inferred that she will be adversely affected in the future.
67 In the respondent's favour were his pleas of guilty and his positive antecedents. However, the respondent did not accept responsibility for, and had no insight into, his actions. He lacked victim empathy and was not remorseful for what he had done. These factors underscore the need for personal deterrence.
68 I now turn to the comparative cases. The purpose of examining comparative cases is to provide a yardstick with the object of achieving broad consistency in sentencing. However, as the High Court pointed out in Hili v The Queen [2010] HCA 45; (2010) 242 CLR 520, care must be taken in using what has been done in other cases [53]. The range of sentences imposed in the past does not fix the range of an appropriate exercise of the sentencing discretion. In the end, each case must be decided upon its own facts and circumstances. It is not the law that, absent a marked departure by a sentencer from closely comparable cases, an appellate court is unable to conclude that a sentence was manifestly inadequate: Munda v The State of Western Australia [2013] HCA 38; (2013) 249 CLR 600 [39].
69 There is no tariff for sexual offences: The State of Western Australia v Akizuki [2008] WASCA 267; (2008) 192 A Crim R 373 and R v Podirsky (1989) 43 A Crim R 404. This is because of the enormous range of conduct which can come within the description of the offences and the great variation in the personal circumstances of offenders.
70 In The State of Western Australia v Akizuki, Steytler P undertook a detailed review of a large number of cases. He drew the following conclusions:
As might have been anticipated, this review of the cases reveals that the circumstances of sexual offending, and of sexual offenders, are almost infinitely variable. That, in turn, means that the sentence imposed in one case can provide only very limited guidance in deciding what sentence should be imposed for a similar offence in another case. However, some conclusions can be drawn, as follows:
(1) An average starting point for a case of penile penetration of the vagina without consent, absent circumstances of aggravation, is in the order of 7 years' imprisonment under the former sentencing regime, or around 4 years and 8 months' imprisonment under the transitional regime. That starting point takes no account of any factors in mitigation.
(2) Because the circumstances of sexual offending and sexual offenders are so variable, nothing will be achieved by specifying a range of sentences customarily imposed. The range of potential aggravating features is so huge that features of that kind can either dramatically increase the sentence imposed (bearing in mind that the maximum sentence for an aggravated offence is 20 years' imprisonment: s 326 of the Criminal Code) or have little or no effect on the sentence imposed. The range of potential mitigating factors is at least equally extensive. They might result in a very large reduction in sentence or little or no reduction.
(3) Nor will anything be achieved by specifying a different starting point for each category of sexual penetration without consent. It should not be assumed that one form of sexual penetration is necessarily more, or less, serious than another. As Wheeler JA pointed out in C v The State of Western Australia [2006] WASCA 261 [35], there is no 'hierarchy of sexual penetration'. For example, although digital penetration will ordinarily be less serious than penile penetration, that is not inevitably so. It might, in particular circumstances, be no less serious or even more serious. The seriousness of every offence of unlawful sexual penetration must be determined by its own individual circumstances: C [35] (Wheeler JA); Cavill [266] - [267] (Miller JA).
That seems to me to be about as much guidance as can be obtained from the cases. I appreciate that it is less than sentencing judges might wish. However, that is a necessary consequence of the court's obligation to tailor each sentence to the individual circumstances of the case, having regard for the maximum penalty provided by the legislature and, to the extent that they can be of assistance, sentences customarily imposed in similar circumstances [68] - [69].
71 The most closely comparable cases in a factual sense are Powell v The Queen (Unreported, WASC, Library No 8928, 6 June 1991); R v Clark [2000] WASCA 229; R v Cleak [2004] WASCA 72; Mearns v The State of Western Australia [2009] WASCA 153; Miles v The State of Western Australia [2010] WASCA 93 and FST v The State of Western Australia [2011] WASCA 220. In all of these cases, save R v Cleak, the offenders were convicted after trial. In R v Cleak, the offender entered a late plea on the first day of his trial.
72 In Powell, the appellant was convicted of one count of sexually assaulting a 34-year-old female complainant by penetrating her vagina with two of his fingers without her consent while she was asleep. The appellant was 19 years of age at the time of the offence, with a record of dishonesty, but with no prior offences of a sexual nature. However, the sexual assault offence occurred at a time when he was on probation. The offence was said to be an isolated act of short duration. There was no evidence of remorse or victim empathy. The sentence that was imposed at first instance, allowing for time spent in custody, of 5 years' imprisonment was reduced on appeal to 3 years' imprisonment (2 years post-transitional).
73 In R v Clark, the Crown appealed against a sentence of 3 years 8 months' imprisonment (approximately 2 years 5 months post-transitional) imposed upon an offender who was convicted after trial of one count of aggravated sexual penetration without consent, the circumstances of aggravation being that the complainant was between the age of 13 and 16 years. In that case, the respondent, who was at the time just short of his 21st birthday, engaged in sexual intercourse with the complainant, a girl a few days short of her 15th birthday, who was at the time unconscious as a result of alcohol intoxication. There were significant personal mitigating factors, including the respondent's young age. The common law principles governing Crown appeals applied. The Crown's appeal was dismissed.
74 Cleak was another Crown appeal. In that case, the respondent, who was aged 18 at the time of the offence, committed one count of sexual penetration without consent. The victim in that case, a girl aged 16, had been known to the respondent for most of his life. The victim considered him to be 'like a brother' to her. The victim was affected by alcohol and fell asleep in the respondent's bed. While she was asleep, the respondent engaged in one act of sexual intercourse with her. The respondent was sentenced at first instance to 18 months' imprisonment suspended for 12 months. The Crown's appeal was upheld. The respondent was resentenced, having regard to the now abolished double jeopardy principle and circumstances which had occurred since he was sentenced, to 20 months' immediate imprisonment with eligibility for parole.
75 In Mearns, the appellant was convicted after trial of one count of sexual penetration without consent and sentenced to 3 years 4 months' immediate imprisonment with eligibility for parole. In that case, both the appellant and the complainant were 18 years of age. They had a brief sexual encounter a year earlier. On the night in question, they met in Northbridge and, after consuming a quantity of alcohol, returned to the complainant's house. The complainant permitted the appellant to sleep in her bed and, while she was asleep, he sexually penetrated her vagina with his penis. The appellant was a person of prior good character and the significant delay between the commission of the offence and the appellant being interviewed by the police was mitigatory. This court set aside the sentence imposed at first instance of 3 years 4 months and substituted a sentence of 2 years' immediate imprisonment.
76 In Miles v The State of Western Australia, the appellant was convicted of one count of sexually penetrating the complainant without her consent. In that case, the complainant, who was 17 years of age, fell asleep. She was woken up by the appellant, who had inserted two fingers inside her vagina. After a short time, he withdrew his fingers and turned away. The appellant was, at the time, 33 years of age and was the subject of an intensive supervision order. The sentence of 2 years' immediate imprisonment was not disturbed on appeal.
77 In FST, the appellant, who was, at the time of the offence, 43 years of age, was convicted of one count of sexual penetration without consent and sentenced to 4 years' immediate imprisonment. In that case, the complainant was celebrating the conclusion of end-of-year exams with the appellant's partner at their residence. The complainant became intoxicated and went to sleep in one of the bedrooms. While she was sleeping, the appellant sexually penetrated her vagina with his penis without her consent. During intercourse, the complainant woke up and objected to what was happening to her. At this point, the appellant desisted and left the room. Shortly after the offending, the complainant left the house and sat in the driveway in a traumatised state. The appellant came out and spoke to her and drove her to another address at her request. By a majority, the sentence of 4 years' imprisonment imposed at first instance was set aside and a term of 3 years' immediate imprisonment was substituted.
78 As one would expect, the outcomes in Powell, Clark, Cleak and Mearns reflect the fact that leniency is often extended to young offenders. By contrast, the respondent did not have the advantage of youth. Additionally, as I have said, in Clark the common law principles governing Crown appeals applied and in Cleak the resentencing was affected by double jeopardy.
79 The offenders in Miles and FST were not young offenders. Miles was a case of digital penetration which attracted a longer sentence compared with the sentence imposed on the respondent in respect of count 1. FST was a case of penile penetration. The appellant there, unlike the respondent in the present case, showed some regard for the victim by his conduct immediately after the offence. The appellant's personal circumstances were favourable. He was at a low risk of reoffending. On resentencing, the appellant received a longer sentence than the respondent did on count 2.
80 The case at hand is marked by a combination of factors not present in these cases I have referred to, being the respondent's:
(a) aberrant attitudes and beliefs which underpinned his offending and which, on the material before the primary judge, he did not resile from. Based on this material, it might properly be said that his attitude toward his offending was defiant;
(b) complete disregard for H's dignity and welfare; and
(c) lack of remorse and insight.
81 These matters accentuate the need for personal deterrence. A further point of distinction is that the respondent committed two different acts of sexual penetration.
82 Having regard to all of the circumstances, I have been clearly persuaded that the individual sentences are so low that error is to be inferred. Each sentence is manifestly inadequate. Ground 1 must be upheld.
83 I now turn to ground 2. It follows from the conclusion that the individual sentences were manifestly inadequate that the total effective sentence infringed the totality principle. The total effective sentence of 2 years' imprisonment did not, in my opinion, bear a proper relationship to the overall criminality involved in the offences, having regard to all of the circumstances including those referable to the respondent himself. Ground 2 must also be upheld.
84 In my opinion, grounds 1 and 2 have been made out.
The residual discretion
85 The respondent submitted that if the grounds of appeal were made out, this court should nevertheless exercise its residual discretion under s 31 of the Criminal Appeals Act 2004 (WA) to decline to allow the appeal. The basis for the submission was the contents of a letter written by the respondent to this court which was provided to the court by his counsel without objection from the State. The letter is undated, but appears to have been written towards the end of 2014, after the State commenced its appeal. In the letter, the respondent wrote that, while at the time of the offence he did not see that what he did was rape, he now fully understands that it was and that 'the law of consent means that a person sleeping is a vulnerable person'. He informed the court that he was enrolled in a sex offender treatment program which his counsel said was due to commence on 24 February 2015. The respondent, in effect, states that prison has been a salutary experience for him. He expressed his sorrow for his actions and expressed the wish, if he had the opportunity, to apologise to H.
86 While the respondent's letter is a matter relevant to the exercise of the residual discretion, its content is not sufficiently credible to warrant its exercise in the respondent's favour. The content of the letter stands in stark contrast to the very negative attitudes he displayed after his arrest and maintained up to the time of sentence. While it is hoped that the respondent has had a change of attitude towards both his offending and H, it is difficult to accept, simply on the respondent's say-so, that his seemingly entrenched views have changed as radically as they appear in the letter. A more probable inference is that the letter has been written in the face of the State appeal, with a view to persuading this court not to increase his sentence.
87 Error in this case has been clearly demonstrated and it is, in my opinion, necessary, to ensure proper standards of sentencing, that the respondent be resentenced.
Resentencing
88 I have had regard to all of the circumstances of the case and all relevant sentencing factors, including the respondent's personal circumstances and antecedents. The head sentence for each offence has been reduced by 15% for the guilty plea under s 9AA(2) of the Sentencing Act; the same discount given by the primary judge. I have also taken into account the contents of the letter referred to in [85] above. As to this, for the reasons I have given, it can be given little weight. Plainly terms of immediate imprisonment are the only appropriate penalties in this case. Having regard to the circumstances of each offence and all relevant sentencing factors, I would impose on count 1 a sentence of 2 years' imprisonment and, on count 2, a sentence of 3 years 6 months' imprisonment. Having regard to the one transaction principle, I would order that the sentences be served concurrently. Thus the total effective sentence I would impose is 3 years 6 months' immediate imprisonment. I would not interfere with the orders made at first instance for eligibility for parole.
Orders
89 I would make the following orders.
1. Leave to appeal on grounds 3 and 4 is granted.
2. The appeal is allowed.
3. The sentences of imprisonment imposed by his Honour Martino CJDC on 20 May 2014 are set aside. In lieu thereof, the respondent is sentenced as follows:
(a) On count 1, to 2 years' immediate imprisonment.
(b) On count 2, to 3 years 6 months' immediate imprisonment.
(c) The sentences are to be served concurrently with each other so that the total effective sentence is 3 years 6 months' immediate imprisonment and is to be taken to have taken effect on 20 May 2014.
4. The respondent remains eligible for parole.
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