The State of Western Australia v Wynne - [2024] WASCA 20

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT :   THE COURT OF APPEAL (WA)
CITATION:   THE STATE OF WESTERN AUSTRALIA -v- WYNNE [2024] WASCA 20
CORAM:   BUSS P
MAZZA JA
HALL JA

HEARD:   13 FEBRUARY 2024
DELIVERED          :   1 MARCH 2024
FILE NO/S:   CACR 130 of 2023
BETWEEN:   THE STATE OF WESTERN AUSTRALIA
Appellant
AND
MILTON GEOURGE WYNNE
Respondent

ON APPEAL FROM:
Jurisdiction              :   DISTRICT COURT OF WESTERN AUSTRALIA
Coram:   BLACK DCJ
File Number            :   IND 1166 of 2023

Catchwords:

Criminal law - State appeal against sentence - Sexual penetration without consent - Where Intensive Supervision Order imposed - Whether sentence manifestly inadequate

Legislation:

Criminal Code (WA), s 325

Result:

Appeal allowed

Respondent resentenced

Category: B

Representation:

Counsel:

Appellant	:	B Stanwix
Respondent	:	H Prince

Solicitors:

Appellant	:	Director of Public Prosecutions (WA)
Respondent	:	H Prince

Case(s) referred to in decision(s):

Bugmy v The Queen [2013] HCA 37; (2013) 249 CLR 571
CMB v Attorney-General (NSW) [2015] HCA 9; (2015) 256 CLR 346
Green v The Queen [2011] HCA 49; (2011) 244 CLR 462
Kabambi v The State of Western Australia [2019] WASCA 44
Munda v The State of Western Australia [2013] HCA 38; (2013) 249 CLR 600
The State of Western Australia v HNU [2023] WASCA 6
The State of Western Australia v Pereira [2023] WASCA 162
The State of Western Australia v Rayapen [2023] WASCA 55
The State of Western Australia v Syred [2020] WASCA 185
The State of Western Australia v Vartolo [2015] WASCA 53

JUDGMENT OF THE COURT:

This is a State appeal against sentence.
On 14 November 2023, the respondent was convicted on his plea of guilty to an offence of sexual penetration without consent, contrary to s 325 of the Criminal Code (WA). The offence involved the respondent using his finger to penetrate the anus of the complainant. The offence occurred on a Transperth bus, and the complainant was a 16‑year‑old girl who was travelling to school wearing her school uniform.
By the time the respondent came to be sentenced he had spent 5 months in custody. The sentencing judge considered that, having regard to the respondent's plea of guilty, the nature of the offence, the respondent's deprived childhood and the time spent in custody, a non‑custodial sentence was appropriate. The sentence imposed was a 12‑month Intensive Supervision Order with a program condition.
There is one ground of appeal. It is that the sentence imposed was manifestly inadequate. The State refers in this regard to the maximum penalty for the offence (14 years' imprisonment), the nature and circumstances of the offence, the need for the sentence to adequately reflect general and personal deterrence, sentences imposed in broadly comparable cases, and the personal circumstances of the respondent. The State submits that it was not open to the sentencing judge in the proper exercise of her discretion to impose a sentence other than immediate imprisonment.
For the reasons that follow, the appeal must be allowed. Given the nature and circumstances of this offence, a non‑custodial disposition was entirely inappropriate. The fact that the respondent had served 5 months in custody prior to being sentenced did not justify a non‑custodial disposition. Any appropriate sentence for this offence was significantly longer than the time that the respondent had spent in custody. The sentence imposed was plainly unreasonable or unjust.
There are no grounds for exercising the residual discretion to dismiss the appeal. Error has clearly been established and there is a need to maintain proper sentencing standards and provide guidance to sentencing judges. The State appeal was brought promptly and has been dealt with on an urgent basis. The respondent has served a relatively small portion of the Intensive Supervision Order, and there is nothing to suggest that allowing the appeal and resentencing the respondent would result in injustice to him.
The appeal should be allowed, the sentence imposed in the District Court set aside, and the respondent resentenced to a term of 2 years' immediate imprisonment, with eligibility for parole. That sentence should be backdated to take into account the time spent in custody.

The facts

At about 9.00 am on Thursday, 15 December 2022, the complainant was on a Transperth bus on her way to school. She was wearing her school uniform. The uniform included school shorts. After boarding the bus, the complainant took a seat on the left‑hand side, about four rows from the back of the bus. She was seated close to the window.[1]
[1] ts 7; WAB 8.
Sometime later in the journey, the respondent got onto the bus and sat on a seat on the right‑hand side, immediately across the aisle from where the complainant was sitting. There were other passengers on the bus at this time, but only one, a man wearing high‑visibility work clothes, was sitting behind the complainant and the respondent. That man got off the bus before the complainant and the respondent.[2]
[2] WAB 8.
The respondent initially sat close to the window on the opposite side of the bus but angled towards the complainant. He mumbled something at the complainant to get her attention. The complainant was aware that the respondent was seeking to get her attention, but she was wearing earphones and could not hear what he said. In any event, she did not wish to engage with the respondent and attempted to ignore him and to concentrate on her telephone. The respondent then screwed up his bus ticket, or a torn part of it, and threw it at the complainant. It hit her on the side. She was aware of being hit with the ticket, but continued to ignore the respondent.[3]
[3] WAB 8, 102; ts 7, 21 - 22.
The respondent then moved to the aisle side of his seat. Soon afterwards, the complainant stood up to disembark the bus at her usual stop. As she did this, the respondent also rose from his seat. As the complainant moved into the aisle, she passed the respondent. He raised his right hand, reached under the complainant's school shorts and pushed his finger towards her anus. The respondent's finger pushed the complainant's underwear into her anus. The respondent then withdrew his hand and moved to a seat on the opposite side of the bus.[4]
[4] WAB 9; ts 7 - 8, 22.
The complainant immediately turned to face the respondent, before she alighted from the bus using the centre doors. She then sent a text message to a friend and told her friend what had happened. She referred to feeling sick. Her friend encouraged her to report the matter. The complainant called her father, and the matter was reported to Transperth and the police.[5]
[5] ts 7 - 8; WAB 9.
The incident was captured on high‑definition CCTV footage from the bus. That footage was obtained by the police and formed part of the prosecution brief.[6] The images recorded by that footage are consistent with the facts summarised above.
[6] ts 8.
The bus ticket purchased by the respondent, and thrown at the complainant, was also located and seized, and submitted for analysis. That analysis returned a positive DNA result, which enabled the respondent to be identified.[7]
[7] ts 8.
On 10 January 2023, the respondent was located sleeping on the streets of Perth, and was arrested. He was taken to the Perth Watch House, where he declined to participate in an electronic record of interview. He told police, 'I don't remember. I say a lot of different things to different females'.[8]
[8] ts 8.
After being arrested and charged, the respondent was initially released on bail. He breached bail and was remanded in custody. He entered his plea of guilty on his 12^th court appearance. The plea was entered prior to the committal mention. It was accepted by the State that the plea was entered at an early opportunity, though not the first reasonable opportunity. At the time of sentencing, the respondent had spent 165 days in custody.[9]
[9] ts 8; WAB 9.

Personal circumstances

The respondent was aged 43 at the time of the offence, and was 44 at the time of sentencing. He was born in Albany and is of Indigenous heritage. His parents both died when he was a young child. He has a number of siblings and half‑siblings, including two older sisters with whom he is close and who are supportive of him.[10]
[10] ts 7; psychological report, dated 14 August 2023, [1] - [2].
The respondent had a difficult childhood. As mentioned, his father died when he was about 4 or 5 years old, and his mother about two years later, after a failed kidney transplant. The respondent then went to live with an aunt and uncle in a regional town. He described his aunt's home as initially a safe house, until she also died when he was aged 10. After that, he said his uncle became physically abusive, and he was sexually abused by a cousin. The respondent fled his uncle's house at the age of 14 to live with one of his older sisters and her husband in another town. He describes this household as having been stable, safe, and supportive.[11]
[11] ts 14 - 16, 18, 26 - 27.
Whilst living with his aunt and uncle, the respondent attended primary school. His attendance was regular, but he was below average in his academic performance. He lost interest in schooling in high school, and his behaviour was such that he was asked to leave school at about 14 years old. He has reported that at that time, he was mixing with negative peers and engaging in substance use. After leaving school the respondent attended TAFE and did a variety of short courses relating to trade skills, such as bricklaying. He has reported that he completed a diploma in counselling about four years ago and had gone to music school, though this could not be verified.[12]
[12] ts 19 - 20; psychological report, dated 14 August 2023, [4].
The respondent reported doing a variety of jobs as a young adult, including community development employment work and as a youth development officer. He worked in New South Wales and Victoria at various times. His most recent employment was as a counsellor at an Aboriginal healing service. In sentencing submissions, it was said that the respondent had become a committed Christian and worked as a pastor. The employment as a counsellor appears to have ended about six years ago and this coincides with the breakdown of his marriage and the commencement of more serious drug use.[13] The respondent has since been unemployed and has lived with relatives but has also been homeless for periods, due to his illicit substance use. He was homeless at the time of the current offence. He reported that he has been assaulted on several occasions while living on the streets, and that his possessions have been stolen.[14]
[13] The psychological report says that the respondent's last employment was three years ago, but the respondent's drug use appears to have commenced around 2017. Whether the counselling job finished three years ago or six years ago is of limited significance.
[14] ts 55; psychological report, dated 14 August 2023, [5]; pre-sentence report, dated 14 August 2023, page 3.
The respondent reported that he commenced using cannabis at about 13 years old, and progressed to daily use over the next year. He claims to have been abstinent on numerous occasions. He began to binge drink alcohol at around the age of 13 and admitted to continuing to have heavy periods of consumption into adulthood. He began to use methylamphetamine at 38 years old, but was unable or unwilling to explain why this had occurred at such a late stage. He reported using methylamphetamine heavily at the time of the offending, though at times he had struggled to source drugs. He has not accessed any treatment for illicit substance use.[15]
[15] Psychological report, dated 14 August 2023, [6].
The respondent has a criminal record, commencing as a juvenile. As an adult, his offences have mostly been traffic and drug related. He has committed no previous sexual offences. As an adult there was a long period of no offending (other than traffic) until 2017, which appears to coincide with the commencement of his methylamphetamine use.[16]
[16] Psychological report, dated 14 August 2023, [6]; pre‑sentence report, dated 14 August 2023, page 3.

Psychological Report

A psychologist who completed a court‑ordered report suggested that the respondent appeared to use illicit drugs to alleviate emotional distress and to distance himself from traumatic memories. The respondent told the psychologist that he had been prescribed medication for depression on one occasion, but had not taken the medication because he preferred to use illicit substances. The psychologist noted that the respondent had a naive view that his substance use problems had been addressed by his remand in custody and forced abstinence. His self‑awareness and insight of his drug use were described as being 'somewhat limited'.[17]
[17] Psychological report, dated 14 August 2023, [1], [6] - [7].
The respondent has had one significant long‑term relationship, a marriage which produced no children, though he has a 21‑year‑old son from another short‑term liaison. He has only limited contact with his son. The respondent's long‑term relationship commenced when he was 25 years old with a woman who was seven years younger. They were together for 12 years. The respondent admitted that he started to destabilise after this union ended. There was also a shorter relationship with another younger woman, which lasted about nine months. He was not in a relationship at the time of the offending.[18]
[18] Psychological report, dated 14 August 2023, [8].
The respondent was unwilling to provide information about the extent of his sexual drive and whether it was affected by methylamphetamine use. When asked about his sexual preferences, he responded, 'Any woman over the age of consent', which the psychologist noted suggested some immaturity and a possible interest in much younger females. However, the respondent adamantly denied any deviant sexual interests.[19]
[19] Psychological report, dated 14 August 2023, [8].
The psychologist conducted a personality and clinical assessment, which resulted in two findings of note. The respondent recorded an elevated result for alienation, suggesting the development of attitudes which are socially irresponsible and show a lack of obligation towards society's laws. This elevation suggests poor moral reasoning and development and implies a tendency to behave in an unethical manner, with little experience of guilt following poor behaviour as the respondent is driven by personal gratification. This finding can also be indicative of a personality disorder. The second elevated result was for impulse expression. This finding was demonstrative of impulsivity in a manner that may be dangerous to the individual or others. The psychologist suggested that the respondent lacks the ability to think beyond the present and to consider the consequences of his actions. He is prone to undertake risky and reckless actions, and is inclined to behave irresponsibly and find routine tasks boring. The testing did not demonstrate any current symptoms of depression, anxiety, or stress, although the respondent's tendency to repress his emotions as a coping strategy was noted.[20]
[20] Psychological report, dated 14 August 2023, [8] - [9].
In regard to the offence, the respondent reported to the psychologist that although he had pleaded guilty, he had no recollection of his behaviour. He stated that he took responsibility after watching the video footage. He admitted that he found the victim attractive, and he thought that she was older than 16 years old. He claimed to have failed to note that she was wearing a school uniform. The respondent said that he was homeless at the time and had been using methylamphetamine for about six days. He expressed regret for his offending, saying, 'That's not me'. He claimed to be horrified at his behaviour, but the psychologist stated that the respondent had only a 'superficial understanding of the likely impact on the victim'.[21]
[21] Psychological report, dated 14 August 2023, [12].
The psychologist was of the view that sexual deviance might be possible, but the respondent has not previously sexually offended, suggesting that this offence may be an aberration. The psychologist concluded that the respondent appears to be a risk of sexual reoffending, and that he would benefit from a sex offender intervention. He also requires intensive substance use intervention, such as residential rehabilitation. Practical assistance in establishing accommodation and a more prosocial lifestyle would also be helpful for him upon his release.[22]
[22] Psychological report, dated 14 August 2023, [16] - [20].

Pre‑sentence Report

A pre‑sentence report also identified treatment needs in relation to homelessness, substance abuse, antisocial peers, and the respondent's lack of prosocial leisure pursuits. The report said that the respondent had few protective factors that could mitigate his risk of reoffending. However, it was noted that he has strong family support. The report stated that the respondent may benefit from engagement in a residential rehabilitation program to address his substance use, as well as a referral to a departmental program to treat criminogenic needs relating to sexual offending.[23]
[23] Pre-sentence report, dated 14 August 2023, page 1.
The respondent's account of the circumstances of the offence to the pre‑sentence report author was broadly similar to that he had given to the psychologist, except that he conceded that he had noticed that the complainant was wearing a school uniform. He expressed remorse for his actions, stating that he had let himself and his family down. He was able to articulate many potential short‑term and long‑term impacts his behaviour may have had on the complainant. The report writer noted that the respondent's behaviour appeared to have had a significant impact on his self‑worth and self‑image. It was noted that this presentation was inconsistent with the psychological report regarding his understanding of the likely impact on the victim.[24]
[24] Pre-sentence report, dated 14 August 2023, page 2.
The respondent has been subject to one period of community supervision, namely three concurrent community‑based orders that commenced on 16 December 2020. Those orders included program and supervision requirements. The respondent failed to engage in substance abuse counselling as directed and continued to use methylamphetamine. Approximately six weeks into the orders he completely disengaged. After court breach proceedings commenced, the respondent's engagement improved and the order was completed, although poor compliance with supervision was noted.[25]
[25] Pre-sentence report, dated 14 August 2023, page 2.

The sentencing submissions

The ground of appeal asserts an implied error. No express errors by the sentencing judge are alleged. In these circumstances, it would not usually be necessary to make detailed reference to the sentencing submissions or the sentencing remarks. However, it is worth referring to some aspects of those submissions and remarks by the sentencing judge as they reveal the process of reasoning that led to the imposition of an Intensive Supervision Order.
Immediately after the facts had been read, and before the State had made any submissions as to sentence, the sentencing judge said:[26]
Now given that the accused has spent five months in custody, what's the State's ultimate position as to whether further time is needed or whether the court, given the five months that's already been spent, could look at something other than immediate imprisonment.
[26] ts 8.
The prosecutor responded by saying that the State's position was that a term of immediate imprisonment was the appropriate disposition. That position was maintained throughout the sentencing proceedings. However, her Honour pressed the point, saying:[27]
So does the State concede that something other than immediate imprisonment might be open, having regard to the time already served in custody. That is, it's quite a lengthy time, having regard to the ‑ the conduct, as I understand it ‑ I'm not for one minute suggesting it's not serious, but it's a very brief touching for what would have been said was a split second, over the clothing. And in all of those circumstances it would have to be said to be conduct of its type that was at the lower end of the scale.
[27] ts 9.

The prosecutor responded by saying that the State accepted that the offending was opportunistic and fleeting, but that it was preceded by approximately 10 minutes of interaction, in which the respondent had persistently tried to engage with the complainant.[28]
[28] ts 9.
A little later, the sentencing judge said:[29]
When you say it's fleeting, it's hard to imagine how it could be more fleeting.
[29] ts 11.
The sentencing judge then said:[30]
It's entirely a matter for you what your submissions are, but obviously I would ask the State to be open to listen to what the defence has to say, to see whether it really maintains that, in light of the five months spent in custody already, having regard to the nature of the touching, the State is actually telling me that only an immediate term of imprisonment could now suffice. I appreciate that you probably act under the direction of others, but I'm, to be blunt with you, a little bit surprised by the State's submission.
Of course, it's a matter for me what the sentence is, but it's important that the State's submission reflects the evidence and the materials.
[30] ts 11.
The very clear implication of the sentencing judge's comments was that the State's position on sentence was not justified and was not supported by the evidence. Despite being pressed in this way by the sentencing judge, the prosecutor, to her credit, maintained her position that the only appropriate disposition was an immediate sentence of imprisonment. That submission was, despite the sentencing judge's suggestion to the contrary, an entirely proper one in the circumstances of this case.
The submissions of counsel do not limit the discretion of the sentencing judge. It is always open to a judge to impose a sentence that she or he considers to be appropriate notwithstanding that counsel have submitted that a different sentence should be imposed. There are, however, important consequences flowing from a concession made by a prosecutor. Where a prosecutor makes a concession that a particular type of sentence is open the practical effect is to constrain the prosecution from bringing an appeal against such a sentence on the grounds of manifest inadequacy. The making of such a concession is also a powerful consideration against appellate intervention, on the basis of the residual discretion, where the State contends a sentence of imprisonment should have been imposed.[31]
[31] CMB v Attorney-General (NSW) [2015] HCA 9; (2015) 256 CLR 346 [64]; Munda v The State of Western Australia [2013] HCA 38; (2013) 249 CLR 600 [72].
For those reasons, sentencing judges should exercise caution in suggesting that a concession regarding a sentencing disposition should be made by a prosecutor. It is open to question the prosecutor to obtain clarification as to the State's position on sentence, but this should not extend to pressing for a concession to be made. There is a risk that a prosecutor may relent to pressure (or perceived pressure) and make an inappropriate concession and thereby prevent appellate scrutiny of the merits of the sentence. There may be a temptation for a sentencing judge to seek a concession to ensure that the sentence imposed is less likely to be challenged. That temptation must be resisted.
Defence counsel adopted the suggestion that another disposition might be open and submitted that the sentencing judge could consider a suspended sentence. Her Honour responded to that submission in the following manner:[32]
[32] ts 12 - 13.
BLACK DCJ: For a person to place his finger, however briefly, into the anus area of a 16‑year‑old girl who's minding her own business, particularly when he's behaving the way he was and trying to get her attention, undoubtedly puts him at risk of imprisonment.
CASEY, MS: Absolutely.
BLACK DCJ: Whether or not he actually would go to gaol would depend a bit on all the circumstances.
But he comes before me today having already spent five months in gaol, which would be the amount of time served before parole, assuming that he was eligible for parole, which given his record I would think he would be ‑ ‑ ‑
CASEY, MS: Yes, your Honour.
BLACK DCJ: ‑ ‑ ‑ of a 10‑month sentence.
In those circumstances at the moment I'm at least open to considering an Intensive Supervision Order.
CASEY, MS:   Yes, your Honour.
BLACK DCJ:   Rather than a conditionally suspended sentence. The reason for that being of course that if I give him a conditional suspended sentence then the length of the sentence really probably won't fairly have regard to the fact ‑ ‑ ‑
CASEY, MS:   Yes, your Honour.
BLACK DCJ: ‑ ‑ ‑that he's already spent five months in custody. So I wouldn't be contemplating less than a suspended sentence today, but for the fact of the time he's spent.
So why [sic] you're free to make whatever submissions you would like, I would be grateful if you can give me as much as you can just about some of his circumstances, particularly now, because I appreciate he's been homeless and had a pretty rough life, it must be fair to say.
CASEY, MS: Yes.
BLACK DCJ: He was clearly off his head on the video, you could just tell by looking at him that he didn't look like ‑ he was really agitated and moving around and looked somewhat out of a normal state.
Defence counsel then provided details of the respondent's personal history and circumstances. At one point this included the sentencing judge directly questioning the respondent about his future plans and his feelings regarding the offence. The respondent said that the offence had been a 'wake‑up call' and, with the help of his sisters, he had realised that he had to make 'some right decisions moving forward'. He spoke of his previous employment and that he did not want this offence to overshadow the good things he had done in his life. He said that he was sorry for the offence and was ashamed.[33]
[33] ts 18 - 20.
After completion of the plea in mitigation, the prosecutor made sentencing submissions. She said that the State maintained the position that immediate imprisonment was the only appropriate disposition. She noted that personal circumstances are of comparatively less weight in dealing with sexual offences. Whilst the State accepted that this was not the most serious example of an offence of this kind, it was also not the least serious. There were aggravating factors, including the brazen nature of the offence, that it occurred on a public bus where the complainant was entitled to be safe from being harassed or sexually offended against, and that the complainant was on her way to school.[34]
[34] ts 21.
The prosecutor accepted that the offending was opportunistic and that the sexual penetration was fleeting. However, the prosecutor said that there was a degree of persistence in the respondent's attempts to engage the complainant in the lead up to the offending. The respondent made a sustained effort to engage the complainant in different ways, including by looking at her repeatedly, moving closer to her, talking to her, and throwing a screwed‑up ticket at her. The complainant did not respond to these attempts and made it clear that she did not want to engage with the respondent. The complainant's discomfort would have been plain to him. The prosecutor noted that the complainant was forced to walk past the respondent in order to exit the bus and that this reflected, to a degree, that the offending was calculated and designed to be as inconspicuous as possible, masked by the respondent standing up apparently to change his seat and passing behind the complainant as she walked past him to get off the bus.[35]
[35] ts 21 - 22.
The prosecutor noted that the complainant was vulnerable in that she was young and sitting alone on the bus. The seats around her were all empty, and of all the seats available on the bus the respondent chose the one directly opposite her. She was, in effect, isolated from people who could help her. The State noted the significant age discrepancy between the complainant and the respondent, and that the complainant was wearing her school uniform and had a backpack. She was clearly a school‑aged child, who was significantly younger than the respondent.[36]
[36] ts 22 - 23.
The State accepted that there were some mitigating factors, including the plea of guilty and the respondent's deprived upbringing. The State also accepted that the respondent had demonstrated some remorse, although it was suggested to be of only a limited nature, and that he had limited insight into the seriousness of the offence.[37]
[37] ts 23 - 24.
The sentencing remarks
The sentencing judge commenced her sentencing remarks as follows:[38]
You come before me in relation to one charge where, to put it bluntly, you opportunistically put your finger into the bottom area of the complainant as she went to exit a bus, undoubtedly causing her a fright and a feeling of an invasion of her privacy. I thought her expression that she felt sick afterwards, and her text message exchange with her friend was entirely understandable.
She was a sixteen‑year‑old girl. She noticed you acting weirdly. You threw a screwed‑up bus ticket at her. You then behaved like a strange idiot on the bus. She just ignored you and played with her phone, doing what seemed to be the most sensible thing. And then, as I say, when she went to get up, you very briefly touched her. It is fair to say that the facts, in some way, sound worse than actually watching the video.
And I'm not, for one moment, suggesting it is not a serious offence, but a viewing of the video is important because it shows just how opportunistic and just how fleeting it was. It would be fair to say that the touching would have taken well less than one second. In the scheme of offences of this type, while of course it is serious to place your finger into that sort of area of a young girl, particularly when she is just minding her own business, in her school uniform, sitting on a public bus, it can't be said to be not serious.
But equally, in terms of offences that are contrary to section 325 of our Code, I do find that it is at the lower end of the scale for offences of this type. (emphasis added)
[38] ts 25 - 26.
The sentencing judge then turned to the respondent's personal circumstances and noted that he had no record involving sexual offending or sexual deviance, and that it was fair to say that this kind of offending was 'absolutely out of character'. Her Honour said that whilst the fact that the respondent was using methylamphetamine was not mitigatory, it explained the respondent's conduct. Her Honour said that she did not find that the respondent had 'some pre‑existing deep‑seated sexual deviancy'. Rather, her Honour concluded that the respondent was not in his 'right state of mind and behaving in a way that was not the way you would behave were you in a sober state of mind'. Her Honour noted that the respondent was homeless at the time, and that the circumstances of his childhood were traumatic.[39]
[39] ts 26 - 27.
Turning to the appropriate disposition, her Honour said:[40]
In the end, it seems to me that you would have been looking at probably an immediate term of imprisonment, but certainly a term of imprisonment suspended or not, might have been a question, were it not for the fact that you had spent five months in custody.
The fact that I'm sentencing you now, after you have spent five months in custody, in my view, really answers the submissions that the State has made. The State say that this is a matter that only an immediate term of imprisonment can suffice. I'm not convinced about that, but nonetheless, even if that is so, you have now done five months.
It seems to me that that is a significant punishment for the offence that you committed in all of the circumstances, and accordingly, now there are options to me. I cannot impose an immediate term of imprisonment unless it is the only appropriate disposition.
Having regard to all of the circumstances of you, and of your offending, and the fact that you spent five months, and the fact that you pleaded guilty, I consider that I can and should impose something other than an immediate term of imprisonment.
[40] ts 28.
Despite the fact that the sentencing judge had concluded that she was not going to impose a term of imprisonment, she nonetheless quantified the discount under s 9AA of the Sentencing Act 1995 (WA) in regard to the plea of guilty at 20%. Her Honour also accepted that the respondent was remorseful and that he understood and appreciated the wrongfulness of his action and the impact on the complainant.[41] Her Honour then said:[42]
By reason of your plea of guilty, by reason of the matters in mitigation and by reason of the five months you have already spent in custody, I consider that the appropriate disposition is an Intensive Supervision Order.
[41] ts 28 - 29.
[42] ts 29.
The sentencing judge imposed a 12‑month Intensive Supervision Order with a program requirement. Her Honour did not consider it was necessary to impose either a community service requirement or a curfew requirement. Her Honour said that the purpose of the program requirement was to enable the respondent to participate in drug counselling.[43] As to any sex offender program, her Honour said:[44]
If your supervisor considers that you also need sexual reform counselling, she or he can organise that, but it seems to me that although this is a sexual offence, it is not a sexual offence in the typical way and doesn't reflect your behaviour up till now. (emphasis added)
[43] ts 29.
[44] ts 29.

Ground of appeal

There is a single ground of appeal. It is as follows:[45]
1.The sentencing judge erred in law by imposing an Intensive Supervision Order in respect of the offence of sexual penetration without consent, such disposition being so inadequate as to manifest error, having regard to:
(a)the statutory maximum penalty of 14 years' imprisonment;
(b)the serious nature and circumstances of the offence;
(c)the need for the sentence to adequately reflect general deterrence, as well as appropriate punishment for this offending of this nature;
(d)the sentences imposed in broadly comparable; and
(e)the personal circumstances of the respondent.
[45] WAB 6.

Appellant's submissions

The State submits that the offending was serious and included several aggravating factors which increased the respondent's culpability, not least that he committed a brazen offence of sexual penetration without consent upon a child victim, wearing school uniform, in public and whilst travelling on public transport. The sentencing judge's observations as to the fleeting and opportunistic nature of the offence reflect only one aspect of the factual matrix which informed the seriousness of the offence.[46]
[46] WAB 13.
The State submits that the offence is more properly characterised as a deliberate act of sexual violence which was intended to violate and shock the child victim. Having repeatedly attempted to gain the complainant's attention, the respondent anticipated that the complainant was about to exit the bus, moved off his seat and penetrated her anus in a sudden and deliberate act of sexual violence. The offending represented a serious violation of the complainant's rights to bodily autonomy and dignity.[47]
[47] WAB 13 - 14.
The State submits that offences of sexual penetration without consent are inherently serious. There is no hierarchy of sexual penetration and the seriousness of each offence must be determined by reference to its own individual circumstances. Nor is there any tariff for sexual offences due to the broad range of conduct that falls within the scope of such offences and the wide variety of personal circumstances of those who commit them. This limits the utility of comparable cases, which can only provide broad guidance.[48]
[48] WAB 15.
The State submits that it is well‑established that, other than in exceptional cases, an offence of sexual penetration without consent committed by an adult will result in a sentence of immediate imprisonment.[49]
[49] WAB 17.
The State submits that the circumstances of the present case are such that there is only one previously decided case which is broadly similar in terms of the factual circumstances. That case is the recent decision of The State of Western Australia v Pereira.[50] Recognising that that case involved two victims and four offences and that the offender was convicted after trial, the State submits that the two offences of sexual penetration were of a similar nature and resulted in sentences of 3 years' immediate imprisonment (reduced to 12 months' imprisonment for the second offence for totality reasons). The State submits that Pereira, in combination with other cases relating to sexual penetration more generally, supports a conclusion that the sentence in this case was manifestly inadequate.[51]
[50] The State of Western Australia v Pereira [2023] WASCA 162.
[51] WAB 18 - 19.
The State submits that the circumstances of the offence and the personal circumstances of the respondent did not establish that this case was so exceptional as to warrant a departure from the ordinarily appropriate disposition of a term of immediate imprisonment. The State also notes that factors personal to the respondent should have carried comparatively less weight in dealing with an offence of this nature. General deterrence and denunciation were significant sentencing considerations.[52]
[52] WAB 21.
The State submits that this court's intervention is required to ensure the maintenance of proper sentencing standards and that, accordingly, there is no basis for the application of the residual discretion to decline to allow the appeal.[53]
[53] WAB 21 - 22.

Respondent's submissions

The respondent submits that the sentencing judge properly characterised the offending as at the lower end of the scale of offences of sexual penetration without consent. It is submitted that there are no truly comparable cases and that Pereira can be distinguished because it involved two victims and some degree of planning.[54]
[54] WAB 26 - 27, 35.
The respondent accepts that immediate imprisonment is the usual disposition for offences of this nature but points to the less serious nature of the offence and the fact that the respondent had already served 5 months in prison as being central to the sentencing judge's decision to impose a non‑custodial sentence.[55]
[55] WAB 27, 36.
The respondent submits that whilst personal factors are of less importance in respect of sexual offending, they are not irrelevant. In this case the respondent's history of childhood trauma and deprivation (which counsel referred to as Bugmy[56] factors), were identified by the sentencing judge and applied in the sentencing process. The respondent submits that, having regard to all relevant factors, the sentence imposed was within the range for offences of this type.[57]
[56] Bugmy v The Queen [2013] HCA 37; (2013) 249 CLR 571.
[57] WAB 27.
If error is established the respondent submits that this is an appropriate case for the exercise of the residual discretion to dismiss the appeal. This is said to be because the guidance to be afforded would be limited due to the unusual nature of the offence. Further, it is said that to allow the appeal would be unjust to the respondent given that he has already served a part of the Intensive Supervision Order.[58]
[58] WAB 27, 37 - 38.

Relevant principles

The State has a right to appeal against a sentence pursuant to s 24(1)(a) of the Criminal Appeals Act 2004 (WA) (Act). The court must dismiss the appeal even if a ground is made out unless, in the court's opinion, a different sentence should have been imposed.[59]
[59] Criminal Appeals Act 2004 (WA), s 31(4)(a).
The general principles governing appeals contending that error should be inferred on the basis that an individual sentence is manifestly excessive or manifestly 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[60] and recently applied in the context of State appeals against sentences imposed for sexual offences in The State of Western Australia v HNU[61] and Pereira.[62]
[60] Kabambi v The State of Western Australia [2019] WASCA 44 [21].
[61] The State of Western Australia v HNU [2023] WASCA 6 [60].
[62] Pereira [50].

When considering whether a sentence is manifestly inadequate, it is necessary to view the sentence in light of the maximum sentence prescribed by law for the offence, the standards of sentencing customarily observed with respect to the offence, the place which the criminal conduct occupies on the scale of seriousness of offences of that type, and the personal circumstances of the offender.
A ground of appeal that alleges that a sentence is manifestly inadequate (or manifestly excessive) asserts the existence of implied error. That is, that the outcome is so clearly unjust or unreasonable that an error can be inferred, even though no error is apparent in the reasons of the sentencing judge. It must always be borne in mind that the issue for an appellate court is not whether it would have exercised the primary sentencing discretion differently.
A sentence imposed on an offender must be commensurate with the seriousness of the offence. The seriousness of an offence must be determined by taking into account the statutory penalty for the offence, the circumstances of the commission of the offence (including the vulnerability of any victim), any aggravating factors, and any mitigating factors.
Personal circumstances are of comparatively less weight in dealing with sexual offences. That does not, of course, mean that personal circumstances are irrelevant, but 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.
The maximum penalty for an offence of sexual penetration without consent (where the offence is not committed in circumstances of aggravation) is 14 years' imprisonment.
There is no tariff for sexual offences, nor is there a specified starting point for each form of sexual penetration without consent. One form of sexual penetration is not necessarily any more or less serious than another. The seriousness of every offence of sexual penetration without consent must be determined by its own particular circumstances.
While the interests of consistency require that regard be had to sentences customarily imposed in cases involving similar offending, the range of sentences that have been imposed in the past does not fix the boundaries within which future judges must, or even ought, to sentence.

Merits of the appeal

No express errors on the part of the sentencing judge are alleged, and the State must be taken to have accepted any findings made by the sentencing judge. However, descriptions of the offence and its seriousness are not so much findings as an evaluative judgment. It is noteworthy in this regard that in the sentencing judge's comments during submissions and in her sentencing remarks, she repeatedly refers to the offending as 'touching' and to that touching being in 'the area' of the anus. The word 'penetration' is not used. With respect, if these references were intended to accurately capture the gravamen of the offence, then they failed to do so. Whilst it is unnecessary for present purposes to make any finding as to whether her Honour erred in her appreciation of the nature of the offence, the repeated use of the word 'touching' in this context may well indicate how her Honour arrived at the conclusion that an Intensive Supervision Order was an available disposition.
The word 'touching' is more apt to describe an offence of indecent assault than an offence of sexual penetration without consent. The offence of sexual penetration without consent is of an entirely different order to the offence of indecent assault. Sexual penetration without consent (without circumstances of aggravation) is punishable by a maximum penalty of 14 years' imprisonment. Indecent assault (without circumstances of aggravation) is punishable by a maximum of 5 years' imprisonment. The offence in this case was one of sexual penetration without consent, and the sentence imposed was required to reflect that fact and the maximum penalty for the offence.
As to the seriousness of the offence, whether its duration is described as brief or fleeting, the context in which it occurred was important. The offence was preceded by repeated attempts by the respondent to engage with the complainant. The complainant made it plain by her refusal to interact that the attention was unwelcome. Nonetheless the respondent persisted, perhaps out of annoyance that he was being ignored. Whatever his motivation, it was obvious that the complainant was a school aged girl, dressed in school uniform and travelling on her own. She was self‑evidently vulnerable.
To describe the offence as opportunistic is accurate to the extent that there is nothing to suggest that it was premeditated or planned. There was, however, an element of calculation in the way in which the respondent carried it out. It is clear from the CCTV footage that the respondent anticipated that the complainant was preparing to get off the bus and he moved closer to the aisle. This placed him in close proximity to the complainant as she passed. He acted quickly and deliberately to move his right hand forward, under the complainant's shorts and insert his finger in her anus, forcing her underwear into her anus. The complainant immediately turned to look at him, and it is apparent that she was shocked by what had occurred. Contrary to the suggestion of the sentencing judge, the CCTV footage does not support a conclusion that the offence was less serious than the stated facts might suggest. The summary of facts accurately summarised the CCTV footage, which is of very high quality.
There were a number of aggravating factors that increased the culpability of the offender. Those factors were:
1.The fact that the complainant was a child of 16. She was wearing school uniform and was travelling to school at the time.
2.The age difference between the respondent and the complainant.
3.The fact that the complainant was alone and vulnerable.
4.The fact that the offence occurred in a public place.
5.The fact that the offence occurred on public transport.
Personal circumstances are of less significance in dealing with sexual offences, though not irrelevant. Plainly, the fact that the respondent had a deprived childhood, had pleaded guilty, had expressed remorse, and had served 5 months in custody prior to being sentenced, were relevant factors. However, those factors could not support a conclusion that a non‑custodial penalty was appropriate. The fact that the respondent had served 5 months in custody was viewed by the sentencing judge as a critical factor, but it could not in itself support a conclusion that a sentence of imprisonment was inappropriate because any appropriate sentence would significantly exceed the time spent in custody.
It should be noted that although counsel for the respondent on the appeal referred to the Bugmy factors in her submissions, the respondent's history of childhood deprivation was not said to be relevant at sentencing in any way other than as a part of his general background. Further, there was no support in the submissions made at sentencing or in the reports for any suggestion that the respondent's childhood trauma had any relevant long‑term and continuing effect on his mental or physical health or had any role in causing the offence.
One of the reasons why personal circumstances are of less weight in respect of sexual offences is because of the importance of personal and general deterrence. Whilst there was little to suggest that personal deterrence was a significant factor here, general deterrence was not of any less significance in this case than in other cases involving sexual offending. Indeed, the fact that the offence occurred on a vulnerable young victim using public transport reinforced the need for general deterrence. Children using public transport to travel to school should be safe from harassment and sexual assault. Parents should be able to rely on the safety of public transport as a means for their children to get to and from school.
There is no fixed range of sentences for sexual offences. However, as a matter of fact, it is unusual for an offence of sexual penetration without consent to result in anything other than an immediate sentence of imprisonment. All such offences are inherently serious.[63] To describe an offence of this nature as being towards the lower end of the scale does not in itself indicate that a sentence other than imprisonment is appropriate. Certainly, there was nothing in the circumstances of this case that could justify such a disposition.
[63] The State of Western Australia v Syred [2020] WASCA 185 [27]; The State of Western Australia v Rayapen [2023] WASCA 55 [196].
As to comparable cases, there are few cases that are meaningfully comparable other than Pereira. In that case the offender was driving at night when he saw two adult women walking together. He drove past the women and then parked his car. He waited for the women and then ran up behind them, grabbing both simultaneously from behind. Both women felt a finger forcing parts of their clothing into their vaginas. They also felt a hand or fingers touch their bottoms or their anuses. The offender ran back to his car and drove off. Parts of the incident were captured on CCTV.
The offender in Pereira was convicted after trial of two counts of sexual penetration without consent and two counts of indecent assault. He was sentenced by the trial judge to 14 months' immediate imprisonment on each of the penetration counts and 6 months on each of the counts of indecent assault. The sentences on the penetration counts were ordered to be served cumulatively and the other sentences concurrently. Thus, the total effective sentence was 2 years 4 months' immediate imprisonment. The State appealed against the sentences on the grounds that the individual sentences for the penetration offences were manifestly inadequate and the total effective sentence infringed the first limb of the totality principle.
The State appeal in Pereira was allowed on the first ground and the sentences for the penetration offences increased to 3 years' immediate imprisonment (though the second sentence was reduced to 12 months' immediate imprisonment for totality reasons). The sentences on the two penetration offences were ordered to be served cumulatively, producing a total effective sentence of 4 years' immediate imprisonment.
In Pereira, a number of other cases involving offences of sexual penetration without consent were considered, including Musgrave v The State of Western Australia;[64] The State of Western Australia v Vartolo[65] and The State of Western Australia v Rayapen.[66] Ultimately those cases were found to afford only limited assistance, both because they represented only a small sample and because there were obvious differences both in the circumstances of the offences and the personal circumstances of the offenders.[67] Nonetheless, we too have had regard to those cases, as well as Pereira itself.
[64] The State of Western Australia v HNU [2023] WASCA 6.
[65] The State of Western Australia v Vartolo [2015] WASCA 53.
[66] The State of Western Australia v Rayapen [2023] WASCA 55.
[67] Pereira [50] - [51].
There are some obvious differences between the offending in Pereira and that of the respondent. In particular, in Pereira there was an element of planning or premeditation, there were two victims and the offender was convicted after trial. However, the offences themselves were similar in nature, involving the use of a hand to sexually penetrate a female in a sudden, forceful but relatively brief manner. The fact that the offences occurred in a public place was common to both cases. However, in the respondent's case the complainant was a child on public transport.
As to the nature of the relevant acts in Pereira, the court considered that the fact that the penetrations occurred through clothing did not reduce the seriousness of the offending. The offender's actions in that case were described as forceful, demeaning, shocking and humiliating. The court noted that references in submissions and by the sentencing judge in that case to the offences being 'unique' appeared to be used to suggest that the offending was towards the lower end of the scale of seriousness. The court said that whilst the offences were unusual this did not reduce the seriousness of the offending. Notwithstanding that the offender in that case had no prior criminal history and was found to be remorseful (though his understanding of the impact of the offences was doubted), this court found that different and significantly higher sentences should have been imposed for the penetration offences.
Allowing for the differences between Pereira and the respondent, and acknowledging that it is but one case, that case supports a conclusion that the sentence in this case was manifestly inadequate.
In our view, taking into account the maximum penalty for the offence, the serious nature of the respondent's offending conduct, the various aggravating and mitigating factors, the respondent's personal circumstances, and the limited guidance afforded by sentences in other broadly comparable cases, an Intensive Supervision Order for the offence of sexual penetration without consent was unreasonable or plainly unjust. A different and significantly higher sentence should have been imposed. Accordingly, the ground of appeal has been made out.

Residual discretion

The respondent submits that this court should exercise the residual discretion to dismiss the appeal, even if the ground is made out. It is suggested that the case does not afford any guidance as to general sentencing principles, and that it would be unjust to the respondent to allow the appeal and resentence him.
The main purpose of prosecution appeals against sentence is to lay down principles for the governance and guidance of courts in sentencing convicted persons. This court has a discretion under s 31(4)(a) of the Act, known as the 'residual discretion', not to allow a prosecution appeal against a sentence imposed on a person convicted of a charge of an indictable offence, even if it thinks that the sentence is erroneously lenient. That discretion usually falls to be exercised in circumstances when the guidance that this court might otherwise provide to sentencing courts is limited, and a decision to allow a prosecution appeal will result in injustice to a convicted person who is required to respond to such an appeal. It is for the State to negative any reasons why the residual discretion of this court not to intervene should be exercised.[68]
[68] Pereira [62]; Green v The Queen [2011] HCA 49; (2011) 244 CLR 462 [1] - [2].
The sentence in this case was manifestly inadequate. That conclusion establishes that the outcome is not in accordance with sentencing standards for offences of this nature. It is necessary for the appeal to be allowed in order to ensure the proper maintenance of those sentencing standards. The circumstances of the offence and the personal circumstances of the respondent could not possibly justify the outcome that was imposed. The case has utility in providing guidance as to appropriate sentencing standards and their application.
The case also affords an opportunity to provide guidance regarding the proper characterisation of an offence of this nature in sentencing remarks and the appropriateness of pressing the prosecution to make concessions regarding the type of the sentencing disposition.
As to any injustice to the respondent, the State filed a notice of appeal the day following the imposition of sentence and applied for an urgent appeal order. An urgent appeal order was granted, and this appeal has been heard with expedition. The respondent has been subject to the Intensive Supervision Order for approximately three months. The terms of that order were not onerous, and it cannot be suggested that the period of time that he has been subject to that order in itself makes any custodial disposition inappropriate. Whilst the onus is on the State, the respondent has not advanced any reasons why allowing the appeal and resentencing the respondent would be unjust.
It is not appropriate in the circumstances of this case for the residual discretion to be exercised.

Resentencing

The circumstances of the offence and the respondent's personal circumstances have been set out in detail earlier in these reasons.
The respondent was afforded the opportunity to provide information regarding any relevant matters that have occurred since the original sentence was imposed. In brief written submissions, the court was advised that the respondent has been residing with his sister and attending appointments with his Community Corrections Officer. He has advised his counsel that he has not offended since his release from custody.
In exercising the sentencing discretion afresh, we are of the view that the only appropriate sentence is one of immediate imprisonment. A suspended sentence would not adequately reflect the seriousness of the offence.
The respondent's plea of guilty was not at the first reasonable opportunity. However, it was prior to committal and spared the State and the witnesses the necessity of a trial. The prosecution case was strong. We would allow a s 9AA discount of 15% for pleading guilty.
The appropriate sentence, having regard to all of the relevant factors, including those personal to the respondent, is 2 years' immediate imprisonment. There is no reason to deny eligibility for parole.

Orders

1.Appeal allowed.
2.The sentence imposed by the District Court in IND 1166 of 2023 is set aside and the following sentence is substituted: 2 years' immediate imprisonment.
3.The sentence is backdated to commence 165 days from the day the respondent is taken into custody.
4.The respondent is eligible for parole.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
ID
Research Associate to the Hon Justice Hall
1 MARCH 2024