The State of Western Australia v York - [2025] WADC 3

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CRIMINAL

LOCATION:   PERTH
CITATION:   THE STATE OF WESTERN AUSTRALIA -v- YORK [2025] WADC 3
CORAM:   LEVY DCJ
HEARD:   19 DECEMBER 2024
DELIVERED          :   31 JANUARY 2025
FILE NO/S:   IND 916 of 2024
BETWEEN:   THE STATE OF WESTERN AUSTRALIA

AND
AARON JAMES YORK

Catchwords:

Criminal law - Trial of issues - Mitigating factors required to be proved by offender on balance of probabilities - Sexual penetration of a child of or over the age of 13 years and under 16 years - Consent - Honest and reasonable mistake of fact - Turns on own facts

Legislation:

Criminal Code (WA)
Sentencing Act 1995 (WA)

Result:

Offender has proved mitigation factors on the balance of probabilities

Representation:

Counsel:

The State of Western Australia	:	Ms G Colborne
Accused	:	Mr R E Lindsay with Mr F Popal

Solicitors:

The State of Western Australia	:	State Director of Public Prosecutions
Accused	:	Popal & Associates

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

Law v The State of Western Australia [2009] WASCA 193
R v Olbrich [1999] HCA 54; (1999) 199 CLR 270
R v Soma [2003] HCA 13; (2003) 212 CLR 299; (2003) 196 ALR 421; (2003) 77 ALJR 849
R v Storey [1998] 1 VR 359
The State of Western Australia v SJH [2010] WASCA 40; (2010) 200 A Crim R 228
The State of Western Australia v Thompson [2014] WASCA 108

LEVY DCJ:

Introduction

On 17 October 2024, Aaron James York, the offender, pleaded guilty to a single count on Indictment 916 of 2024, namely that on 30 June 2023 at Byford, he sexually penetrated TDC, a child of or over the age of 13 years and under the age of 16 years, by penetrating her vagina with his penis.
On a subsequent date, Mr York also entered a guilty plea to an offence brought before the court pursuant to s 32 of the Sentencing Act 1995 (WA) (the SA), namely the offence of supplying alcohol to a juvenile on unlicensed premises.[1] The offence was committed at the same time and place as the charge on the indictment. The juvenile to whom Mr York supplied the alcohol was TDC.
[1] Charge AR12836 of 2023, brought up before District Court pursuant to s 31 of the Sentencing Act1995 (WA) on 19 December 2024.
Convictions have been entered against Mr York with respect to both offences.
At the time of the offence, TDC was 15 years and 7 months old. Mr York was approximately 19 years and 2 months old. Thus, there was an age gap of about 3 years and 7 months between Mr York and TDC.

The main issue identified on the trial of issues

Mr York maintains that some time before the offence, he was told by TDC that she was 16 years old. He also claims that he honestly and reasonably believed that she was 16 years old.
The State does not accept that Mr York honestly and reasonably believed that TDC was 16 years at the time of the offence.
It should be noted that, by virtue of s 321(9)(b) of the Criminal Code (WA) (the Code), as Mr York was more than three years older than TDC, the defence of believing on reasonable grounds that the child was of or over the age of 16 years at the time of the offence (s 321(9)(a) of the Code) does not apply.
Nonetheless, if Mr York proves that he honestly and reasonably believed that TDC was 16 years old at the relevant time, it may be a mitigating factor. For that matter, even if he honestly believed she was 16, even if it was not a reasonable belief, that too may be mitigating to a lesser degree.
The State submits that the seriousness of the offence is such that a term of imprisonment is appropriate.[2] However, without conceding the issue, the State submits that if Mr York proved, on the balance of probabilities, that he did honestly believe that the victim was 16 years old at the time of the offence, that may be a factor that could justify the imposition of a suspended imprisonment.[3]

The trial of issues on 2 December 2024

[2] Ms Colborne, ts 41.

[3] Ms Colborne, ts 41 - ts 42.

As already noted above, at the time Mr York entered his guilty plea to the charge on the indictment, both he and the State indicated that there were factual issues in dispute in relation to the circumstances of his offending. Consequently, the matter proceeded to a trial of issues (TOI) on 2 December 2024.

Issues in dispute and other matters relevant to sentencing

At the commencement of the TOI, the parties identified the primary issue in dispute as being the question of whether, at the time of the offence, Mr York honestly and reasonably believed that TDC was 16 years old.
As already noted, the State does not accept that Mr York did honestly believe that TDC was 16 years old. The State pointed to the absence of positive evidence supporting such a conclusion. Furthermore, Ms Colborne, counsel for the State, submitted that the State did not accept that there were any text messages or conversations between TDC and Mr York about her age. Ms Colborne noted that there was 'nothing on the prosecution brief' and it was a matter for Mr York to prove that fact, as a mitigating factor, on the balance of probabilities.[4]

Whether the victim and offender had made an arrangement to meet that day?

[4] Ms Colborne, ts 35.

Despite TDC's account to the contrary (which is set out in her child witness interview (CWI) summarised and discussed below), the State does not dispute that TDC and Mr York had arranged to meet on 30 June 2023 for the purposes of having sex in exchange for Mr York supplying TDC with alcohol.[5]
[5] Ms Colborne, ts 37.
Not only does Mr York's evidence contradict TDC's account on this issue, but the State accepts that the other prosecution witnesses, namely CK and IB, TDC's friends, clearly contradicted TDC's evidence to the effect that she did not know Mr York prior to 30 June 2023 and that her meeting with him on the day in question had occurred 'out of the blue'.

Absence of consent or positive consent on the part of the victim. Whether Mr York honestly believed that TDC was consenting

The State does not seek to prove, as an aggravating factor, the absence of consent.[6] Nor does the State allege that Mr York used any violence before, during or after the sexual act.[7]
[6] Ms Colborne, ts 38.
[7] Ms Colborne, ts 38.
At the commencement of the hearing, Ms Colborne for the State noted that whilst it was not in dispute that there was an arrangement between TDC and Mr York to meet up and have sex in exchange for a bottle of alcohol, the State did not concede either:
•that TDC positively consented during the incident;[8] or
•that Mr York honestly believed that TDC was consenting.[9]
[8] Ms Colborne, ts 38.
[9] Ms Colborne, ts 38.
Ms Colborne did however note that, whilst the State could not positively rebut the proposition that Mr York,[10]
… may have had an honest and reasonable mistake that [TDC] was consenting on the basis that [TDC] does not say she was objecting or resisting [and that she] basically essentially [said] she froze and was slack and not responding.
[10] Ms Colborne, ts 37.
The State's somewhat neutral position remained essentially unchanged after all the evidence on the TOI had been led, including Mr York's sworn evidence. On the issue of Mr York's state of mind as to whether TDC was consenting, Ms Colborne ultimately submitted that the State accepted that it could not 'rebut what might have been in his mind about [an] honest and reasonable [belief as to whether TDC was consenting to sexual intercourse]'.[11]
[11] Ms Colborne, ts 91.
Nonetheless, as with all issues of fact that are not expressly agreed, it is a matter for the court to decide whether a fact has been proved to the requisite degree.
Further, if TDC did 'consent',[12] particularly if she initiated the sexual encounter, that too may provide further mitigation.[13]

Other issues

[12] Noting that at law a child cannot consent to an act of sexual penetration.

[13] The State of Western Australia v SJH[2010] WASCA 40; (2010) 200 A Crim R 228 [69] (Wheeler JA).

As already noted, and despite the facts read, the State does not seek to prove, as an aggravating factor, any act of violence or coercion on the part of Mr York.
The only aggravating factor relied upon by the State is the provision of alcohol by Mr York to TDC.[14] That fact, by Mr York's plea of guilty to the charge brought pursuant to s 32 of the SA, is not a fact in dispute. Whether it aggravates the offending, and if so to what degree, is another issue.
[14] Ms Colborne, ts 39.

The legal principles - burden and onus of proof in sentencing

At least since R v Olbrich,[15] the law is settled that for the purposes of sentencing, the prosecution bears the onus of proving any aggravating factor beyond reasonable doubt, and that an offender bears the onus of proving any mitigating factor on the balance of probabilities.[16]
[15] R v Olbrich [1999] HCA 54; (1999) 199 CLR 270 [25].
[16] See also Law v The State of Western Australia [2009] WASCA 193 [29] ‑ [30] (Law) (Buss JA).
In Law, Buss JA (as he then was) noted that whilst the effect of a plea of guilty means that all defences have been negatived, it does not necessarily 'constitute an admission of all of the facts' relied upon by the State for the purposes of sentencing'.[17]
[17] Law [27].
Furthermore, noting R v Storey,[18] Buss JA considered the consequences of proving an aggravating or mitigating circumstance and said that:[19]
… the distinction between aggravating and mitigating circumstances, for sentencing purposes, may sometimes be unclear or even, on occasions, ambiguous. … The essential point of distinction is whether, in a particular case, a fact or circumstance is likely to result in a more severe or less severe sentence than would otherwise be the case.
[18] R v Storey [1998] 1 VR 359, 371.
[19] Law [28].
Nor is it the case that proceeding to a trial of issues will necessarily result in a more or less severe outcome for an offender. Where disputed facts are raised in a trial of issues, if a sentencing judge is not persuaded of the existence of a particular fact or circumstance, whether mitigating or aggravating, the absence of that fact does not mean that the converse fact is proved. In such circumstances the fact simply does not exist for the purposes of sentencing.[20]
[20] Law [34] (Buss JA). See also The State of Western Australia v Thompson [2014] WASCA 108 [25] ‑ [26].
The offence charged on the indictment is sexually penetrating a child of or over the age of 13 years and under 16 years contrary to s 321(2) of the Code. Proof of the absence of consent is not an element of the offence.

Matters to be proved on the balance of probabilities by Mr York - His onus of proof

Mr York submits that not only did TDC positively consent to the sexual penetration, but in fact she initiated it.
In addition, he submits that at the time of the offence he believed that TDC was 16 years old.
In order for Mr York to rely upon these facts as being mitigatory, he bears the onus of proof on the balance of probabilities.[21]
[21] R v Olbrich; Law [33].

The facts read to the court at the commencement of the TOI

At the commencement of the hearing, Ms Colborne read the State's amended statement of material facts of the offence.[22] The facts, as read, were as follows (the names of the child victim and child witnesses have been anonymised. Those parts of the facts identified and disputed by Mr York are highlighted and underlined):[23]
[22] As set out in the Prosecution Brief (PB).
[23] Mr Lindsay, ts 47 - ts 49.
1.The victim, TDC, was a 15-year-old girl.
2.The offender was a 19-year-old male.
3.The offender and the victim knew one another through mutual acquaintances.
4.At about 3.30 pm on 30 June 2023 the victim and her two friends, CK and IB (both of whom were also 15 years old at the time) were at the Byford Skate Park situated on Mead Street in Byford.
5.The offender attended the skate park in a silver Corolla hatchback (registration number deleted).
6.The offender was wearing a black beanie, black jumper, work pants with high visibility stripes and work boots.
7.The victim and her friends got into the car.
8.The offender drove to a track alongside the Woolworths shopping complex situated on Abernethy Road in Byford.
9.The two friends exited the vehicle to go into the shops.
10.The offender got out of the driver's seat and got into the back seat where the victim was sitting.
11.The offender started trying to make out with the victim.
12.He kissed her on the lips, putting his tongue into her mouth.
13.'The victim sat there with her teeth clenched'.
14.'The offender then took the victim's shoes, pants and underwear off'.
15.'He pulled his pants down and pushed his erect penis into the victim's vagina causing her pain'.
16.The offender had penile-vaginal sex with the victim.
17.'The offender then pulled his penis out and turned the victim on to her stomach'.
18.'He then noticed the victim was bleeding'.
19.'He said "Ew, you're bleeding" and "Get off my car seat" before throwing her clothes at her'.
20.The offender then put his hand on to his erect penis and moved it up and down masturbating himself.
21.'He looked at the victim and said "Give me head" to which she said "No"'.
22.The offender got dressed and returned to the front driver's seat of the vehicle.
23.The victim's friends then came back and got into the vehicle.
24.The offender gave the victim a bottle of vodka and dropped her home.
25.On 24 July 2023, at a scheduled therapy appointment, the victim disclosed the incident to a clinical psychologist, Sarah Swan.
26.A mandatory report was lodged.
27.On 13 September 2023 police executed a Criminal Investigation Act 2006 (WA) search warrant at the offender's home address in Ashfield.
28.A silver Corolla, (registration number deleted) was out the front.
29.A black beanie was recovered in an Esky in the rear seat of the car.
30.Work pants were located on the clothesline and work boots were located in the garage.
31.The offender was arrested and conveyed to the Midland Police Station.
32.He did not participate in an electronic record of interview.
33.He was charged and bailed.
As is obvious from the above facts, the charge of supplying alcohol to a juvenile involved Mr York supplying TDC with the bottle of vodka after the offence of sexually penetrating her was completed.

The evidence on the TOI

By agreement between the parties, the TOI proceeded in a somewhat unusual way. Since the only issues were whether Mr York could prove identified mitigating factors on the balance of probabilities, the State elected to call no oral evidence at the hearing.
In that way, although the evidence of the victim TDC and the two child witnesses, CK and IB, was before the court in the form of audiovisual recordings, none of the prosecution witnesses gave evidence in court or by way of a pre‑recording.

Overview of the evidence for the State

The State tendered the PB,[24] including the transcripts of each of the audiovisually recorded CWIs conducted with:
1.The victim TDC, on 1 August 2023.[25]
2.The child witness, CK, on 17 August 2023.[26]
3.The child witness, IB, on 25 August 2023.[27]
Each of the CWIs were played in court.
[24] Exhibit 1.
[25] Exhibit 2.
[26] Exhibit 3.
[27] Exhibit 4.
As already noted, none of the State's witnesses gave oral evidence in court. Nor did Mr York seek to have them called for the purposes of cross‑examination. Ordinarily, where there are disputes on the evidence, particularly if a witness' credibility or reliability is in issue, the court may benefit from assessing their credibility or reliability through the process of cross‑examination. In that respect, in the absence of that process, the assessment of the credibility or reliability of the State's witnesses was limited.
Nonetheless, based upon the available evidence, the court was able to draw some inferences with respect to the credibility of all witnesses in the case. The court has not lost sight of the limitations of drawing inferences in the absence of the witness being cross‑examined in court.
It should also be noted that the facts read to the court appear to be materially based upon the account given by TDC in her CWI. There are some significant differences between the accounts given by TDC as compared to the accounts of the two child witnesses, CK and IB. Those differences, to the extent that they may be material, are identified later in these reasons.

Overview of Mr York's evidence and other evidence relied upon by him on the TOI

Mr York's evidence comprised two affidavits, sworn 25 September 2024 (First York affidavit) and 16 December 2024 (Second York affidavit),[28] as well as giving oral evidence in court. He was cross‑examined by Ms Colborne for the State.
[28] Exhibits 5 and 6.
Additionally, two affidavits from Mr York's solicitor, Mr Farid Popal, sworn 6 November 2024 (First Popal affidavit) and 13 December 2024 (Second Popal affidavit), were also tendered on behalf of Mr York.[29] Mr Popal also gave oral evidence at the TOI.
[29] Exhibits 7 and 8.
Mr York, in his two affidavits, set out the circumstances of his offending. By and large, Mr York's oral evidence was consistent with his sworn affidavits.
To the extent that his evidence differed in court to what was set out in his affidavits, that evidence will be discussed below.
Mr Popal's affidavits, to the degree that it had any relevance to the issues in dispute, set out the following information:
•Mr York's instructions to him about receiving an 'Instagram text message from [TDC] advising him that she was 16 years old'.[30]
•That Mr York had instructed him that, 'on or about 30 June 2023 [he] deleted his Instagram messages with [TDC] and blocked the account …'.[31]
•The various attempts made by or on behalf of Mr York to recover the messages, including requests made to investigating police for disclosure of the messages or access to TDC's phone.[32]
•The statement from Michael Shaw, Mr York's workmate, dated 19 August 2024, which was provided to the State. Notably, in that statement, Mr Shaw says that on 30 June 2023 he was shown an Instagram message by Mr York. The message was from TDC and in it she had told the offender that she was '16 years old'.[33]
[30] First Popal affidavit, sworn 6 November 2024, par 5.
[31] First Popal affidavit, sworn 6 November 2024, par 6.
[32] First Popal affidavit, sworn 6 November 2024, pars 7 ‑ 11.
[33] Second Popal affidavit, sworn 13 December 2024, Annexure 'FP' 1.

The State's case

The evidence of TDC (CWI conducted on 1 August 2023)

TDC was 15 years old at the time of the interview.
At the commencement of the interview, when asked to explain what she had come to tell the interviewer, TDC said 'I was raped by, um ‑ by a person that I [knew] of'.[34]
[34] PB, page 5.
TDC said that she had gone to a skate park with her friends, CK and IB. She had been smoking cannabis that day. She did not feel well, and both of her friends were 'really stoned'.[35]
[35] PB, page 5.
Whilst at the skate park, she saw Mr York's car coming into the carpark.[36]
[36] PB, pages 5, 6 and 7.
TDC said that she recognised Mr York's face because she had seen it on some earlier occasion when friends of hers had been communicating with Mr York on Snapchat.[37]
[37] PB, page 22.
TDC did not have Mr York on her Snapchat account or on any other social media application.[38]
[38] PB, pages 22 and 25.
TDC was specifically asked the following by the interviewer:[39]
Interviewer: And is there any reason for [Mr York] to know you were at the skate park?
TDC:No.
In answer to the question whether Mr York knew how old she was, TDC said:[40]
I'm not sure.
[39] PB, page 20.
[40] PB, page 22.

According to TDC, Mr York asked the three girls if they wanted a lift.[41] All three of the girls, TDC, CK and IB, got into his car.[42]
[41] PB, pages 5 and 7.
[42] PB, pages 5 and 7.
TDC said she 'felt comfortable with [Mr York] because [she] recognised [his] face …'.[43]
[43] PB, page 8.
TDC's friends were in the front of the car, and she was in the back.[44]
[44] PB, page 8.
Mr York drove them to a Woolworths and parked around the side. The girls wanted to get some food and go to the toilet. Her friends got out of the car.[45] Mr York got into the back seat with her and got on top of her.[46]
[45] PB, page 5.
[46] PB, pages 5 and 8.
Mr York started trying to make out with her, but her 'mouth was not moving'.[47] He tried to get his tongue into her mouth, but she didn't open her mouth and his tongue was against her teeth.[48]
[47] PB, page 5.
[48] PB, page 10.
Mr York then removed her pants and threw them on the floor.[49]
[49] PB, pages 5 and 11.
He attempted to put his penis inside her but had difficulty inserting it. Eventually he pushed really hard, and his penis went into her vagina. He was pushing really hard which hurt her.[50]
[50] PB, pages 5, 11 and 12.
She was 'scrunched up' and her head was slamming up against the door.[51]
[51] PB, page 5.
Mr York then removed his penis from inside her vagina, flipped her onto her stomach and then noticed that she was bleeding.[52]
[52] PB, page 5.
He said 'Eww, you're bleeding' and 'Get off my car seat.[53]
[53] PB, page 13.
Mr York then threw her pants at her, and she put them back on. He started masturbating and said to her 'give me head' to which she said 'no'.[54]
[54] PB, pages 6 and 13.
At that point, the other two girls returned to the car. One of her friends asked her if she was okay. She said she was.[55]
[55] PB, page 14.
Mr York ended up driving her home. When he dropped her off the other girls were still in the car.[56]
[56] PB, page 6.
There was a bottle of vodka in the front seat. As Mr York dropped her off, he told CK to give the bottle of vodka to TDC. She took the bottle from CK.[57]
[57] PB, page 15.
From the above, the salient parts of TDC's account can be summarised as follows:
1.Her meeting with Mr York on 30 June 2023 was by chance.
2.She had not previously communicated with him and was not connected to him by any social media account.
3.She did not really know Mr York at all and merely recognised his face from seeing communications between him and friends of hers.
4.From her perspective, there was no reason for Mr York to be at the skate park that day. Therefore, there was no pre‑arranged meeting to have sex with Mr York in exchange for a bottle of vodka.
5.The sexual interaction with Mr York occurred spontaneously. She was not an active participant in the sexual activity.
6.Although Mr York forcefully inserted his penis into her vagina which hurt her, she does not allege that she told him to stop, or indeed that he was hurting her.
7.Apart from closing her mouth, she did not physically or verbally resist his advances.

CK (CWI conducted on 21 January 2008)

Like TDC, CK was 15 years old at the time of the incident.
According to CK, TDC consented to the sexual activity with Mr York.[58]
[58] PB, page 37.
She did not actually see any of the sexual activity because she was in Woolworths at the time.[59]
[59] PB, page 37.
In contrast to TDC's account to the effect that the meeting with Mr York occurred randomly, CK's account was that the meeting with Mr York had been arranged by TDC.
CK said that she was with TDC and IB at the skate park on 30 June 2023 when TDC told her that she was going to be picked up from the skate park by Mr York and driven to Woolworths.[60]
[60] PB, pages 38 and 40.
TDC told her that Mr York could also drive CK and IB to Woolworths with her.
The three girls, according to CK, waited for Mr York at the skate park.[61]
[61] PB, page 40.
Mr York arrived at the skate park and all three girls got into the car together.
IB told CK that TDC intended to have sex with Mr York in exchange for a bottle of alcohol.[62]
[62] PB, page 44.
Understanding that TDC intended to have sex with Mr York in exchange for alcohol, CK confronted TDC and said, 'but didn't you get like, really mad at the twins [for doing the same]'.[63] In response, TDC acknowledged to CK that she had become angry at the twins for doing exactly what she intended to do.[64]
[63] PB, pages 38, 44, 45 and 48.
[64] PB, page 44.
CK said that when Mr York drove them to Woolworths, she and IB got out of the car. She did not return to the car until after TDC told her it was okay to return to the car.[65]
[65] PB, page 46.
When CK got back into the car, she made sarcastic or joking comments to Mr York and TDC like, 'oh, did youse [sic] have fun?'[66]

IB (CWI conducted on 25 August 2023)

[66] PB, page 47.

Like TDC and CK, IB was also 15 years old at the time of the incident.
Like CK, and in contrast to TDC's account, IB said that TDC had arranged to have sex with Mr York in exchange for alcohol.[67] In fact, IB said it was TDC who had messaged Mr York asking him to give her a bottle of alcohol in exchange for having sex with him.
[67] PB, page 68.
When asked how she knew that TDC had made the arrangements with Mr York, IB said that TDC had told her that she had sent such a message. The message was to the effect that she asked Mr York 'if he would fuck her if he gave her vodka'.[68]
[68] PB, page 69.
IB said that after Mr York picked them up and drove them to Woolworths, on the way to the location Mr York and TDC discussed their arrangement to have sex in exchange for alcohol.[69]
[69] PB, page 72.
IB recalled Mr York asking TDC where she wanted 'to do it' and that TDC gave directions.[70]
[70] PB, page 72.
IB said that she and CK went to Woolworths whilst TDC and Mr York remained in the car.
After IB and CK returned to the car, CK and TDC talked about what happened.[71]
[71] PB, page 73.
IB was also convinced that the sex had taken place because, on the way back to TDC's house, TDC asked Mr York for the alcohol. Mr York told her where the alcohol was and TDC took it.[72]
[72] PB, page 74.
Furthermore, IB said that after TDC was dropped off at her house, Mr York talked about having sex with TDC and told IB that 'it was shit and that she had her period' and was bleeding.[73]
[73] PB, page 74.
IB said that she subsequently spoke to TDC about what had occurred in the car. TDC said that she was not 'on her period' at the time but had bled because Mr York had 'fucked her really hard'.[74]

Mr York's case

[74] PB, page 80.

The defence tendered two affidavits sworn by Mr York on 25 September 2024 and 16 December 2024 (First York affidavit and Second York affidavit).[75]
[75] Exhibits 5 and 6.
Mr York also elected to give sworn evidence on the TOI.
Mr York's evidence, taken from the affidavits and oral testimony given on the TOI, is summarised below.
Mr York first came into contact with TDC when she sent him a request to follow him on Instagram.
On 22 June 2023, TDC sent messages to him initially asking if he was selling drugs, and when he replied 'no', asking him if he could supply her with alcohol instead.
He asked her how old she was in an Instagram text message, she said that she was '16 years old'.[76]
[76] First York affidavit, sworn 25 September 2024, par 8 and in cross‑examination at ts 74 and ts 79.
In response, he asked her what he would get out of supplying her with alcohol, to which she replied that she would 'do sexual acts with [him] including having sex or just oral sex'.[77]
[77] First York affidavit, sworn 25 September 2024, pars 9 and 10.
He and TDC then made an arrangement via Snapchat to meet on Wednesday, 30 June 2023.[78]
[78] First York affidavit, sworn 25 September 2024, pars 11 and 15.
On Wednesday 30 June 2023, Mr York was at work. TDC messaged him on Snapchat to enquire whether their meeting was still on. The specific meeting point of the Byford Skate Park was arranged that day.[79]
[79] First York affidavit, sworn 25 September 2024, par 15; ts 59 ‑ ts 60.
Mr York showed the messages he received from TDC that day to his work colleague Michael Shaw.[80]
[80] First York affidavit, sworn 25 September 2024, par 15. This is supported by a statement made by Mr Shaw and annexed to the Second Popal affidavit, sworn 13 December 2024.
On 30 June 2023, on the way to meet TDC, he bought a bottle of vodka from a bottle shop and placed it under the front passenger seat of his car.
Mr York accepted that the primary purpose in meeting up with TDC was to obtain sexual gratification from TDC.[81]
[81] Cross‑examination, ts 79. Note, Mr York was an unsophisticated witness and was not aware, until it was explained to him, what was meant by 'sexual gratification': see exchange between Ms Colborne and Mr York at ts 79.
When he got to the skate park, he messaged TDC to say he was there. At about 3.30 pm he saw TDC walk towards his car with CK and IB. He was not previously aware that either CK or IB would be with TDC.
Although Mr York never questioned that TDC was a schoolgirl at the time, he was adamant that at the time he 'knew she was 16'.[82]
[82] Mr York during cross-examination, ts 72. In fact, TDC was approximately 15 years and 7 months at the time.
All three of the girls got into his car. He asked them where they wanted to go. CK and IB said that they wanted to go to the Woolworths shopping complex in Byford.
Mr York then drove to the shopping complex. CK and IB got out of the vehicle.
Mr York got into the rear passenger seat with TDC.
Before commencing any sexual activity with TDC, he asked her if she still wanted to have sex with him. She said she did.[83]
[83] First York affidavit, sworn 25 September 2024, par 28; ts 64.
He and TDC started kissing.[84]
[84] First York affidavit, sworn 25 September 2024, par 29.
Mr York refuted the suggestion that TDC had resisted his attempt to kiss her by clenching her teeth.[85]
[85] ts 65.
He assisted TDC to remove her pants.[86]
[86] First York affidavit, sworn 25 September 2024, par 31.
Mr York removed his boots and pulled his pants down.
He and TDC started kissing again.[87]
[87] ts 64.
Before Mr York sexually penetrated TDC's vagina he put a condom on. He again asked TDC if she was okay to have sex with him. According to him, she 'giggled' and said 'yes'.[88]
[88] First York affidavit, sworn 25 September 2024, par 37.
Mr York said he asked TDC more than once in the car if she was okay to proceed with sex. He said if she had not consented, he would not have proceeded and had no doubts that she was consenting.[89]
[89] Cross‑examination, ts 82.
He sexually penetrated TDC's vagina. There was no indication that she was in pain.[90]
[90] First York affidavit, sworn 25 September 2024, par 38.
Mr York said that TDC was an active participant in the sexual encounter and kissed him back.[91]
[91] Cross‑examination, ts 82.
He asked TDC to change positions as their current position was uncomfortable. As TDC moved, he noticed blood on the condom and commented 'you're bleeding'.[92]
[92] First York affidavit, sworn 25 September 2024, pars 39 and 40; ts 66.
He asked TDC if she was okay. TDC told him that her period must have commenced and apologised.[93]
[93] First York affidavit, sworn 25 September 2024, pars 41 and 42; ts 66.
By this stage they had already stopped sexual intercourse and did not recommence. He told TDC to put her clothes back on and that he would take her home.[94]
[94] First York affidavit, sworn 25 September 2024, par 43.
Mr York denied that he had said to TDC 'give me head'.[95]
[95] ts 67.
TDC contacted her two friends to return to the car.[96]
[96] ts 66.
On the way to dropping TDC at home, there was discussion between TDC and her friends about whether she had received the bottle of vodka. At that point Mr York noticed that TDC had located the bottle of vodka under the seat and had taken possession of it.[97]
[97] First York affidavit, sworn 25 September 2024, par 47; ts 67.
When Mr York dropped TDC at her house, she was reminded by her friends to take the bottle of vodka which she had forgotten before exiting the vehicle. The bottle was passed to her by one of her friends.[98]
[98] First York affidavit, sworn 25 September 2024, pars 48 and 47; ts 68.
After Mr York dropped TDC at home, at some point he discovered that she had sent him messages apologising for having her period and telling him that she would make it up to him. There were subsequent messages from TDC that were of an angry and threatening nature towards Mr York.[99]
[99] Second York affidavit, sworn 16 December 2024, par 2.
He blocked TDC from his Instagram account. He then went home.[100]
[100] Second York affidavit, sworn 16 December 2024, par 2.

Credibility and reliability of witnesses

As has already been noted, the court did not have the benefit of any of the State's witnesses' evidence being tested in cross‑examination.
Nonetheless, each of their CWIs was played in court and, in that respect, I was able to observe their accounts, including their demeanour and appearance during the interview.

Comments on the evidence of TDC, CK and IB

The investigation was commenced after TDC disclosed the offending to her clinical psychologist at a scheduled therapy appointment on 24 July 2023. Consequently, a mandatory report was lodged.[101]
[101] Statement of material facts read to the court.
TDC's interview took place on 1 August 2023, a week after she disclosed the offending to the psychologist, and 32 days after the date of the offence. Consequently, the circumstances of the offence must have been relatively fresh in TDC's mind.
In her CWI, TDC presents as a mature teenager that, on appearance, could pass for a person aged anywhere from 15 ‑ 18 years of age. She was wearing age‑appropriate makeup, including eyeliner and mascara.
On TDC's account alone, in the absence of any other evidence, there would be no reason to disbelieve anything she said in her interview.
However, on the totality of the State's case alone, I have considerable concern about aspects of TDC's account. That is because each of the accounts given by CK and IB differs to that of the version given by TDC in material ways.
First, TDC's account was one that unequivocally created the impression that the sexual encounter she had with Mr York arose from a random meeting with him at the skate park.
Secondly, her account was that she did not know Mr York prior to meeting him at the skate park that day (other than seeing his face on a friend's Snapchat account).
Thirdly, TDC made no mention of the relevance of the bottle of vodka save for saying that when Mr York dropped her at home after the encounter, Mr York had said she should take it, so she did.[102]
[102] TDC's CWI, PB, page 15.
From the accounts given by CK and IB in their CWIs, both of whom I accept as honest, accurate and reliable, TDC's account was materially untruthful in a number of ways.
TDC lied about her prior knowledge of and communications with Mr York in the lead up to the offence.[103] She made no mention of the fact that she had arranged to meet Mr York for the purposes of engaging in sexual activity in exchange for alcohol.
[103] PB, pages 20, 22 and 25.
In my view, TDC's direct lies[104] and lies by omission[105] are of such significance that where her account is inconsistent with the account of another witness, I do not accept her evidence.
[104] PB, pages 20, 22 and 25.
[105] See for example PB, page 15 as to how she ended up with the bottle of vodka.

Comments on Mr York's evidence

At the time of the TOI, Mr York was 20 years old. Physically, he presents as a person much younger than 20 years of age. He could easily pass as a 16-year-old both in appearance and intellectually.
Generally, I found him to be an honest witness who was clearly unsophisticated.
Whilst I make no criticism of Ms Colborne for putting to Mr York parts of his affidavits that, at first blush may appear to be inconsistent with some parts of his oral evidence, it was obvious that although Mr York had sworn the affidavits, he had not prepared them. The language of the affidavits was clearly the language of his lawyer, not that of an unsophisticated 20-year-old first year apprentice electrician.
Consequently, although Mr York's first affidavit sworn on 25 September 2024 reads as if Mr York's enquiry as to her age was in the context of a conversation of supplying alcohol,[106] I accept Mr York's sworn evidence that his enquiry as to her age was made generally, and was not, as suggested in cross‑examination, confined to the question of supplying her alcohol.[107]
[106] First York affidavit, sworn 25 September 2024, pars 6 ‑ 10.
[107] ts 73 ‑ ts 74.
I also note that Mr York was cross‑examined on the contents of a pre‑sentence report in which it was suggested to him that:
•he did not tell the author of the report that TDC had told him that she was 16 in an Instagram message,[108] and
•he told the author of the pre‑sentence report that TDC told him a number of times at the skate park (not in an Instagram message) that she was 16 years old.[109]
[108] ts 78.
[109] ts 78.
Consequently, it was put to Mr York that there was no Instagram message about her age.[110]
[110] ts 78.
As to this aspect of the cross‑examination and evidence given by Mr York, first I note that Mr York did not accept that he had said these things to the author of the pre‑sentence report.
Secondly, although Mr Lindsay did not object to the State putting these questions to Mr York (in circumstances where the State may well have been impermissibly splitting its case)[111] the author of the report was not called, nor was the report tendered. Consequently, there was no evidence before the court that Mr York did say these things to the author of the pre‑sentence report.
[111] See discussion at ts 74 ‑ ts 77; R v Soma [2003] HCA 13; (2003) 212 CLR 299; (2003) 196 ALR 421; (2003) 77 ALJR 849.
Thirdly, although Ms Colborne suggested to Mr York that there was no Instagram message about age, Mr York disagreed, and said that 'there was an Instagram message for [sic] the age'.[112]
[112] ts 78.
I also accept the defence evidence that Mr York had, via a number of means, attempted to produce evidence of his communications with TDC without success.[113] Mr York's inability to produce the messages in court was due to no fault of his.
[113] See Second Popal affidavit, sworn 13 December 2024.
Fourthly, Mr York was unwavering in his evidence that there had been one Instagram message from TDC in which she had said she was 16.[114]
[114] See ts 79.
I note that the only part of Mr York's evidence that was inconsistent with other parts of his case was with respect to his evidence in court that he had not deleted any message he had received from TDC.[115]
[115] ts 80.
Furthermore, he said in evidence that he had not told his lawyer that he had deleted any messages.[116]
[116] ts 80.
However, the defence tendered the first Popal affidavit sworn on 6 November 2024 wherein he deposed that Mr York had instructed him that, on 30 June 2023 he had deleted the Instagram messages from TDC.[117]
[117] First Popal affidavit, sworn 6 November 2024, par 6.
No explanation has been given for that inconsistency.
On this issue, I do not accept Mr York's evidence that he did not delete any messages. However, this inconsistency is not of such weight that it causes me to reject his other evidence.
In all other material aspects, I accept Mr York's evidence which I note is significantly supported by the evidence of both CK and IB.

Conclusions and findings on the TOI

I am satisfied on the balance of probabilities of the following:
1.Mr York honestly and reasonably believed that TDC was 16 years old at the time of the offence.
2.TDC consented to sexual intercourse at the time of the offence.
3.Mr York honestly and reasonably believed that she was consenting.

I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.
DF
Associate to Judge Levy
30 JANUARY 2025