Topuz v The State of Western Australia - [2017] WASCA 186

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE COURT OF APPEAL (WA)

CITATION: TOPUZ -v- THE STATE OF WESTERN AUSTRALIA [2017] WASCA 186

CORAM: MAZZA JA
MITCHELL JA
PRITCHARD J

HEARD: 18 SEPTEMBER 2017

DELIVERED : 17 OCTOBER 2017

FILE NO/S: CACR 163 of 2016
CACR 164 of 2016
CACR 165 of 2016

BETWEEN: NEBI TOPUZ
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent

ON APPEAL FROM:
Jurisdiction              :  DISTRICT COURT OF WESTERN AUSTRALIA
Coram  :STEVENSON DCJ
File No  :IND 819 of 2016

Catchwords:

Criminal law - Appeal against conviction and sentence - Appeal against order challenging status as a reportable offender - Sexual penetration of a child over the age of 13 years and under the age of 16 years - Whether circumstances of plea of guilty give rise to a miscarriage of justice - Whether sentence manifestly excessive - Turns on own facts

Legislation:

Community Protection (Offender Reporting) Act 2004 (WA), s 6, s 9(a), s 10(a), s 111
Criminal Code (WA), s 321(2)

Result:

Appeals dismissed

Category: B

Representation:

Counsel:

Appellant: In person
Respondent: Mr R G Wilson

Solicitors:

Appellant: In person
Respondent: Director of Public Prosecutions (WA)

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

Brand v The State of Western Australia [2011] WASCA 269
Gibson v The State of Western Australia [2017] WASCA 141
GNR v The State of Western Australia [2015] WASCA 5
Hickling v The State of Western Australia [2016] WASCA 124
LWD v The State of Western Australia [2017] WASCA 174
Nayna v The State of Western Australia [2016] WASCA 169
Pallister v The State of Western Australia (No 2) [2015] WASCA 221
Riggall v The State of Western Australia [2008] WASCA 69; (2008) 37 WAR 211
Rodi v The State of Western Australia [2017] WASCA 81
Simon v The State of Western Australia [2009] WASCA 10
Snook v The State of Western Australia (No 2) [2015] WASCA 29
Tapper v The State of Western Australia [2016] WASCA 140
Vucemillo v The State of Western Australia [2017] WASCA 37

JUDGMENT OF THE COURT:

Summary

The appellant was convicted of one count of sexually penetrating a child over the age of 13 years and under the age of 16 years, by introducing his penis into the child's mouth. That is an offence contrary to s 321(2) of the Criminal Code. The appellant was convicted after pleading guilty to that offence on the first day of his trial on an indictment which also charged the appellant with a second offence involving penile penetration of the same child. The State accepted the appellant's plea to the first count in satisfaction of the indictment. The appellant was sentenced to 9 months' imprisonment, suspended for 12 months.
The appellant now appeals against his conviction and sentence. He has also instituted an appeal seeking to challenge his status as a reportable offender under the Community Protection (Offender Reporting) Act 2004 (WA) (CPOR Act).
For the following reasons, each of those appeals must be dismissed.

Circumstances of offending

The following circumstances of the offending were alleged by the State, admitted by the appellant and found by the sentencing judge in the District Court.
The appellant was 32 years old at the time of the offence. He met the then 15-year-old male complainant on a social networking mobile application (called Grindr) designed for the purpose of assisting gay, bisexual and bi‑curious men to meet up for casual sex. The complainant signed up to the application stating that he was 18 years of age. The offender began interacting with the complainant on this site under the belief that the complainant was an adult given the age restrictions on the application.
The appellant and complainant arranged to meet in person at the offender's store at Whitford City Shopping Centre on the afternoon of Saturday, 21 February 2015. On arrival the appellant led the complainant to the rear area of the store out of view of the public and they started to kiss.
The appellant undressed himself and the complainant until both were completely naked. The appellant asked the complainant to perform oral sex on him. The complainant agreed and positioned himself in front of the appellant, placed the appellant's penis in his mouth and performed oral sex on the appellant for a short period of time.
The appellant removed his penis from the complainant's mouth before ejaculating on the complainant's back. Both parties dressed and the appellant offered to purchase lunch for the complainant. However, the complainant departed once the appellant left the store.
Several days later the complainant contacted the appellant and advised the appellant that he was under age. The complainant threatened to report the appellant to police if the appellant did not pay him a sum of money. Friends of the complainant became involved and the matter was eventually reported to police.
The appellant presented himself to police and participated in a video record of interview, making admissions to having sexual relations with the complainant. He was later arrested and charged.
At the sentencing hearing, there was some debate as to whether the appellant knew or ought to have known that the complainant was under 16 years of age at the time of the offending. With the concurrence of the State and appellant,[1] the sentencing judge approached sentencing on the basis that the appellant appreciated, at the time of the offence, that the complainant appeared about 15 ‑ 17 years old. The sentencing judge found that, by reason of the complainant's appearance and their age disparity, the appellant:[2]
should have been careful to ensure that the victim was, in fact, over the age of 16 before engaging in any sexual relations with him.
[1] ts 31 ‑ 32.
[2] ts 42.

Personal circumstances at the time of sentence

The sentencing judge made the following findings about the appellant's personal circumstances.[3]
[3] ts 42 ‑ 43.
The appellant is a homosexual man who was born and raised in Turkey before coming to Australia, where he was accepted as a migrant on a protection visa by reason of his sexuality. Since coming to Australia, the appellant had conducted himself 'appropriately and with respect to the law'.[4] References provided to the court indicated that the appellant was held in high regard, consistent with the way in which he had conducted himself in his business affairs and generally whilst in the community.
[4] ts 42.
At the time of sentencing, the appellant conducted a business which operated two shops, and employed three people. The appellant had a strong work ethic.
The offending was a 'one-off out of character event'[5]. Since the offence occurred, the appellant had taken appropriate precautions to ensure that he did not find himself 'in the same situation with a partner going forward'.[6] The sentencing judge accepted that this indicated remorse and insight by the appellant in relation to the offence.
[5] ts 43.
[6] ts 43.
The appellant also cooperated with the police by participating in the video record of interview, where he made full admissions consistent with his plea to the indictment. The appellant had not spent any time in custody in respect of the charge.

Appeal against conviction

Ground of appeal

The appellant is not legally represented, and his ground of appeal is not expressed in the manner which would be expected if drafted by a lawyer. On 2 March 2017, Mazza JA referred the application for leave to appeal on that ground to the hearing of the appeal. That reference was made on the understanding that the ground alleges that the plea of guilty was entered in circumstances which give rise to a miscarriage of justice. So understood, the ground alleges an available ground of appeal against conviction, under s 30(3)(c) of the Criminal Appeals Act 2004 (WA).

General principles

It is established that a court will act on a plea of guilty when it is entered in open court by a person who is of full age and apparently of sound mind and understanding, provided the plea is entered in exercise of a free choice in the interests of the person entering the plea. It is no easy matter for an appellant to persuade a court to set aside a conviction based on a plea of guilty. In such a case, the appellant must show that there has been a miscarriage of justice.
The cases reveal that there are three well recognised circumstances in which courts are prepared to set aside pleas of guilty, being cases in which:
1.the appellant did not understand the nature of the charge or intend to admit guilt;
2.upon the admitted facts, the appellant could not in law have been guilty of the offence; or
3.the guilty plea has been obtained by improper inducement, fraud or intimidation.
However, the circumstances which will amount to a miscarriage of justice are not closed and cannot be exhaustively listed.[7]

Application to adduce additional evidence in the appeal

[7] See Gibson v The State of Western Australia [2017] WASCA 141 [153] ‑ [156] and cases there cited.

Both the appellant and the State have applied to adduce additional evidence in the appeal.

Appellant's additional evidence

The appellant seeks to adduce his own affidavit. In that affidavit, the appellant asserts that his sentencing counsel 'could not defend me' on the 10 October 2016 (which was the first day of trial at which the appellant pleaded guilty and was sentenced). He asserts that he was manipulated by a 'previous lawyer' to wrongfully plead guilty to a crime he did not commit. He says that he was forced to plead guilty at the court by his lawyers.
Attached to the appellant's affidavit is a signed proof of his evidence which the appellant says was prepared by his solicitor. In that proof, the appellant admits meeting the complainant at his shop, taking the complainant to the back of the shop and kissing the complainant. The appellant said that they did not take their clothes off and denied having oral or anal sex with the complainant. The appellant said that the complainant told the appellant he was 18 years old, and the appellant thought the complainant looked about 18 years old.[8]
[8] Appellant's Proof of Evidence dated 6 June 2016, pars 33 ‑ 45.
The appellant's affidavit also refers to the attempts he made to commit suicide prior to the sentencing day, and his mental state at that time. A general practitioner certified that he was unfit to attend court on 10 October 2016. In a report of 16 March 2017, the general practitioner refers to hospital attendances (both before and after sentencing) due to suicidal intention. The doctor refers to the appellant suffering from a stress reaction due to the legal troubles, the stress of business operations and a feeling of separation from his family. The report notes that the various diagnoses that have been suggested are a situational crisis and Narcissistic Personality Disorder. At the time of writing the report, the general practitioner believed the appellant was suffering from depression resulting from his ongoing legal troubles.
The appellant also refers to events subsequent to his conviction, including hospitalisations and treatment. The evidence of those subsequent events is not relevant to an assessment of the circumstances in which the plea of guilty was entered.

State's additional evidence

The State seeks leave to adduce affidavits of Gemma Beggs, the State prosecutor who was file manager for the appellant's matter, and Maria‑Noel Mattocks, the prosecutor at the appellant's sentencing hearing.
Ms Beggs deposes that the Statement of Material Facts (which reflects the admitted facts referred to above) was served on the appellant on 28 June 2015. She attached a letter written by the appellant's solicitor to the Director of Public Prosecutions on 8 February 2016. That letter set out the appellant's instructions and invited the Director to consider not proceeding with the prosecution. Ms Beggs attached a listing certificate signed by the appellant's solicitor.
Ms Mattocks deposes to being briefed to conduct the appellant's trial which was listed to commence on 10 October 2016. After discussions on 4 and 6 October 2016, she was contacted by the appellant's counsel on the morning of 10 October 2016 before the commencement of the trial. Counsel conveyed his instructions that the appellant would plead guilty to count 1 in satisfaction of the indictment. After obtaining approval from a Consultant State Prosecutor, Ms Mattocks accepted that proposal.

Cross-examination

Neither party sought to cross-examine the deponents of any of the affidavits sought to be read in the appeal.

Principles governing the reception of additional evidence in an appeal

The general principles governing the receipt of fresh evidence in an appeal against conviction were recently summarised in Gibson[9] and Rodi v The State of Western Australia.[10] It is unnecessary to repeat that summary here. The general principles were applied in Gibson in the context of an allegation of a miscarriage of justice arising from the circumstances in which a plea of guilty was entered.

Disposition of ground

[9] Gibson [51] ‑ [64].

[10] Rodi v The State of Western Australia [2017] WASCA 81 [89] ‑ [105].

For the following reasons, we are not satisfied that any miscarriage of justice arose in the present case from the circumstances in which the appellant pleaded guilty to the charge.
The facts admitted at the sentencing hearing clearly constituted the offence with which the appellant was charged.
The record of the proceedings in the District Court indicates that the appellant understood the nature of the charge and intended to plead guilty. He entered an unequivocal plea of guilty, which the appellant's counsel indicated was consistent with his instructions.[11] During the course of the sentencing hearing, the appellant's counsel was able to take instructions from the appellant in relation to his appreciation of the complainant's age and the complainant's victim impact statement.[12]
[11] ts 10.
[12] ts 28, 31 ‑ 32, 34.
The nature of the charge was made clear by the Statement of Material Facts served on the appellant in June 2015.
While there is evidence that the appellant was hospitalised as a result of suicide attempts prior to 10 October 2016, there is no medical evidence to the effect that the appellant was incapable of, or substantially impaired from, understanding the nature of the charge or his plea.
The appellant's affidavit does not say that he did not understand the offence with which he was charged or the nature of a guilty plea. Rather, he contends that his lawyers 'manipulated' or 'forced' him to plead guilty. A bald assertion to that effect, without any detail as to what was said or supporting evidence from the legal representatives concerned, does not carry any significant weight.
In Snook v The State of Western Australia (No 2),[13] Hall J, with whom Buss and Mazza JJA agreed, observed:
Attempts to change a plea are approached by the courts with caution bordering on circumspection. This is because there is a strong public interest in the finality of proceedings and because a plea of guilty is taken to be an admission by the person of the necessary ingredients of the offence. This is all the more so when the person has had the benefit of legal advice.
A distinction must be drawn between argument or advice to a client by a lawyer to plead guilty and improper pressure or harassment. Reasoned argument or advice from a lawyer does not involve the use of improper means and does not detract from the ability to make a voluntary choice as to whether to plead guilty. The courts must be wary of the possibility that a person who pleads guilty may later regret it and wish to falsely attribute blame for their voluntary plea on bad or inadequate advice or improper pressure. (citations omitted)
[13] Snook v The State of Western Australia (No 2) [2015] WASCA 29 [104] ‑ [105].
It may be inferred that the appellant received advice, perhaps even firm advice, from his solicitor and/or counsel that it was in his best interests to plead guilty to count 1 in satisfaction of the indictment.
Such advice would not have been inappropriate in the circumstances of this case. The appellant did not have an available defence based on an honest and reasonable belief that the appellant was over the age of 16 years, even if such a belief were to be established. Under s 321(9) of the Code, such a defence would be available only if the appellant was not more than 3 years older than the complainant. The appellant's age was 32 years and the complainant was 15 years old.
Based on the appellant's instructions to his legal representatives, his only possible defence was that the acts of sexual penetration alleged in the indictment did not occur. The difficulty for that defence, however, was that the appellant had admitted to police is his visually recorded interview that he had 'oral sex' with the complainant, engaged in 'kissing and sucking' with him and accepted that 'blow jobs' were performed. These admissions were made in a context where the interviewing officer had just explained that, by 'oral sex', he meant 'a blowjob or perform fellatio'. The appellant expressly accepted that he performed 'oral sex on the boy'. When asked if the complainant performed oral sex on him, the appellant nodded, smiled and laughed and said 'I do not say anything'. The appellant later said he could not remember who gave the other oral sex first. He denied having anal sex with the complainant. The appellant indicated that he ejaculated over his own stomach.[14]
[14] Transcript of recorded interview, pages 28 ‑ 32.
In these circumstances defence counsel could reasonably have taken the view that a conviction on count 1 only was the best outcome the appellant was likely to achieve, and that a sentence of other than immediate imprisonment would be imposed if the appellant was convicted only of that offence on a plea of guilty. By contrast, if the appellant had been convicted of penile/anal penetration after trial, he would face the real prospect of serving a substantial custodial term.
In his submissions to this court, the appellant referred to his language difficulties to seek to explain his difficulty in understanding the proceedings and his admissions in the recorded interview. Those explanations, which were not given on oath, appeared to us to be implausible. While English is the appellant's second language, we do not accept that he was unable to understand the court proceedings, or that his admission of oral sex to police was a misunderstanding arising from a lack of language skills. The appellant, who represented himself in the appeal, indicated that he was readily able to understand the proceedings in this court.[15] While the appellant's written English is far from perfect, his written evidence and submissions clearly and cogently convey his meaning. He did not require an interpreter to effectively participate in the appeal. The appellant had worked in Australia as the proprietor of a business with two retail outlets, which was expanding. On our viewing of the recorded interview, it appears that the appellant clearly understood what was being discussed when he made admissions about oral sex with the complainant.
[15] Appeal ts 29 ‑ 32.
In all the circumstances, the additional evidence sought to be adduced in this appeal, taken together with the record of proceedings in the District Court, does not satisfy us that the appellant's guilty plea was obtained by improper inducement, fraud or intimidation. Nor does it establish a miscarriage of justice on any other ground.
The additional evidence does not establish a miscarriage of justice or that the appellant ought not to have been convicted of the offence. The applications to adduce additional evidence should be dismissed, leave to appeal on the ground of appeal should be refused and the appeal against conviction should be dismissed.

Appeal against sentence

Ground of appeal

The appellant also seeks leave to appeal against his sentence of 9 months' imprisonment suspended for 12 months. On 2 March 2017, Mazza JA referred the application for leave to appeal on the appellant's ground of appeal to the hearing of the appeal. That reference was made on the understanding that the ground alleges that the sentence imposed was manifestly excessive.

General principles

The general principles governing appeals on the ground of manifest excess are well established:
1.A ground of appeal which alleges that a sentence is manifestly excessive asserts an implied error. It is necessary, in determining whether a sentence is manifestly excessive, to examine it from the perspective of the maximum sentence prescribed by law for the relevant offence, the standards of sentencing customarily observed with respect to that offence, the place which the criminal conduct occupies on the scale of seriousness of offences of the kind in question, and the personal circumstances of the offender.
2.The discretion conferred on sentencing judges is of fundamental importance and this court may not substitute its opinion as to sentencing for that of the sentencing judge merely because it would have exercised the discretion in a different manner. The appellant must demonstrate the sentence imposed to be unreasonable or plainly unjust.
3.The guidance afforded by comparable cases is flexible rather than rigid. The mere fact a sentence is within the range of other sentences imposed for similar offending does not necessarily establish that there was an appropriate exercise of the sentencing discretion in the particular case. Similarly, the mere fact a sentence is outside the range does not necessarily establish that the exercise of the sentencing discretion in the particular case miscarried.
4.A sentencing range for comparable offences is merely one of the factors to be taken into account in deciding whether an individual sentence is manifestly excessive. A range of sentences customarily imposed is of significance for the purpose of ensuring broad consistency in the sentencing of offenders in broadly comparable cases. However, a sentencing range for comparable cases does not fix the range of a sound exercise of the sentencing discretion in a particular case.
5.When this court dismisses an appeal against sentence, and when it allows an appeal against sentence and resentences the offender, this court's decision on the sentencing outcome does not, of itself, fix the upper or lower limit of the range.
In the present case, the question arises as to whether the sentence was manifestly excessive as to type. By s 6(4) of the Sentencing Act 1995 (WA), a court must not impose a sentence of imprisonment on an offender unless it decides that the seriousness of the offence is such that only imprisonment can be justified, or the protection of the community requires it.
It is also relevant to note s 39(2) of the Sentencing Act, which lists the sentencing options for an offender who is a natural person in this order: no sentence, conditional release order, fine, community based order, intensive supervision order, suspended imprisonment, conditional suspended imprisonment and imprisonment. By s 39(3), a court must not use a sentencing option unless satisfied, having regard to the relevant sentencing principles, that it is not appropriate to use any of the options listed before that option.
Given the circumstances of the appellant's offence, it could not be said that the protection of the community required a sentence of imprisonment to be imposed. The question is then whether it was open to the sentencing judge to be satisfied that the seriousness of the appellant's offence was such that only a sentence of imprisonment could be justified, and that it was not appropriate to use any of the sentencing options listed before suspended imprisonment in s 39(2) of the Sentencing Act.

Maximum penalty

The maximum penalty for an offence against s 321(2) of the Code, in the circumstances of this case, is a sentence of 14 years' immediate imprisonment.

Customary sentencing standards

The customary sentencing standards in relation to offences against s 321(2) of the Code were recently considered in Nayna v The State of Western Australia[16] and Tapper v The State of Western Australia.[17] As the court observed in Nayna (in a passage quoted by the sentencing judge):
The purpose of s 321 of the Code is not only to protect children from sexual predators, but also to protect children from themselves. There is no tariff for offences contrary to s 321(2) of the Code. However, as a matter of fact, the cases reveal that generally a sentence of immediate imprisonment is imposed for such an offence. Despite this, even if a term of immediate imprisonment is generally the appropriate sentence, a sentencing judge is not relieved of his or her obligation to assess whether, having regard to all of the relevant sentencing factors in the particular case, it is appropriate to suspend the term of imprisonment [45]. (citations omitted)
[16] Nayna v The State of Western Australia [2016] WASCA 169 [37] ‑ [49].
[17] Tapper v The State of Western Australia [2016] WASCA 140 [50] ‑ [70].
The court in Nayna referred to a number of cases decided by this court where sentences other than immediate imprisonment have been upheld or have been imposed for offences contrary to s 321(2).[18] However, few of those cases involved a sentence less than suspended imprisonment.
[18] Nayna [46].
In Simon v The State of Western Australia,[19] the court was concerned with a disadvantaged 18 or 19‑year‑old indigenous offender who was raised in a remote community in the north‑west of Australia. The complainant was 14 years old, with whom the offender engaged in a single act of consensual sexual intercourse. The offender knew that the complainant was less than 16 years old, but did not know that it was an offence to have sexual intercourse with a girl that age. The offender had no prior adult record and good antecedents. He pleaded guilty on the morning of a scheduled pre-recording of the complainant's evidence. The offender appealed against a sentence of 14 months' imprisonment, suspended for 12 months. The appeal was dismissed.
[19] Simon v The State of Western Australia [2009] WASCA 10.
After noting the various mitigating factors, Steytler P, with whom other members of the court agreed, observed:
While these are telling factors, in my opinion they are not sufficient to have made it appropriate to impose any sentence other than one of imprisonment. As I have said, young people are intended to be protected, not only from sexual predators (I would not describe the appellant in that way), but also from themselves. This complainant was only 14 years old. The appellant believed that she was a year older than that but, even then, he should have appreciated that his conduct was inappropriate because of her age, even if he did not know that it was illegal. While the age gap was not as large as it is in many cases, it was not insignificant. As I have said, there was a difference of some 4 or 5 years. Even allowing for his immaturity, there is a significant difference between a 14-year-old and an 18-year-old.
As the sentencing judge remarked, deterrence is a very significant factor. This is reinforced by the fact that, as she said, the offence was one of a number of similar offences that she had been required to deal with in that location. Having regard for the relevant principles as they have been enunciated by the courts, and taking into account the standards of sentencing customarily observed, I am not persuaded that the sentencing judge erred in imposing a sentence of suspended imprisonment [44] ‑ [45].
In Brand v The State of Western Australia,[20] a 21‑year‑old Aboriginal man with good antecedents was convicted on his plea of guilty of eight counts of sexually penetrating a 15‑year‑old girl. The offences occurred on a single occasion, after the pair met on a social networking service on which the complainant had a profile saying that she was 19 years old. Before the sexual activity began, the offender asked the complainant how old she was. She told him that she was 17, and the offender believed that the complainant was over 16 years old. The offender's appeal against an intensive supervision order was dismissed, but the court accepted that the seriousness of the offending did not require the imposition of a custodial term, whether immediate or suspended.[21]
[20] Brand v The State of Western Australia [2011] WASCA 269.
[21] Brand [68].
In GNR v The State of Western Australia,[22] the court was concerned with an 18‑year‑old offender and a female complainant who was (to the offender's knowledge) 13 or 14 years old at the time of the offending. The offender was in an ongoing relationship with the complainant, and the offence was discovered when, at the age of 14, the complainant gave birth to a child fathered by the offender. An unusual feature of the case was that, at the date of sentence (when the complainant was over 16) the pair remained in a committed relationship. The offender pleaded guilty in the Magistrates Court. The offender's appeal against a 12 month community‑based order with a community service and supervision requirement was dismissed. In dismissing the appeal the court recognised that the continuing relationship and the birth of their child called for a merciful exercise of the sentencing discretion.[23]
[22] GNR v The State of Western Australia [2015] WASCA 5.
[23] GNR [61].
In Pallister v The State of Western Australia (No 2),[24] the 23‑year‑old offender had sexual intercourse with the 13‑year‑old complainant on a single occasion at a party. The incident was instigated by the complainant, who the offender honestly and reasonably believed to be over the age of 16. He subjectively believed her to be 18 or 19 years of age. The court set aside a sentence of immediate imprisonment, imposed after the offender pleaded guilty, and substituted a sentence of 4 months' imprisonment suspended for 4 months.
[24] Pallister v The State of Western Australia (No 2) [2015] WASCA 221.
Nayna itself involved an 18‑year‑old offender, with good antecedents, and a 13‑year‑old complainant, who was the younger sister of the offender's girlfriend. The offender was convicted after trial. The offending involved indecent dealing and one count of digital sexual penetration. The court concluded that in the circumstances of that case, particularly having regard to the spontaneous and momentary nature of the sexual penetration offence, the offender's youth and immaturity, his good antecedents, and his favourable future prospects, the point had not been reached where it was inappropriate to suspend or conditionally suspend the term of imprisonment.[25] Taking account of the fact that the offender had served about 3½ months in custody, the court substituted a sentence of 10 months' imprisonment, suspended for 10 months.
[25] Nayna [59].
In Riggall v The State of Western Australia,[26] the court held that the sentencing judge erred in declining to make a spent conviction order when imposing a community based order with programme and supervision requirements. The offence involved a 14‑year‑old complainant and a 22‑year‑old offender. The offender pleaded guilty and was found, after a trial of the issue, to have honestly and reasonably believed the complainant to be 19 years old. The sexual contact was instigated by the complainant, who lied about his age, and ceased when the offender discovered the complainant's true age. The court held that 'in the very exceptional circumstances of this case, the [offender's] offences should be punished to the least possible extent permitted by law'.[27] In Brand, Riggall was described as a 'rare and exceptional case'.[28]
[26] Riggall v The State of Western Australia [2008] WASCA 69; (2008) 37 WAR 211.
[27] Riggall [51].
[28] Brand [67].
The cases discussed above involved offenders in their early adulthood or who, in the cases of Pallister and Riggall, honestly and reasonably believed the complainant to be over the age of 16 years.
The approach in cases where the age disparity is greater, and such an honest and reasonable belief is absent, is illustrated by the decision in Tapper.
In Tapper, the 43‑year‑old offender had sexual intercourse with the 15‑year‑old complainant, who willingly participated, on two occasions. The offender met the complainant on a dating website, and she told him that she was 19 years old. However, the offender in that case was found to be wilfully blind to the complainant's age (when he first met her in person she was dressed in her school uniform). The offender pleaded guilty on the first day listed for trial. His sentence of 2 years immediate imprisonment on each count was upheld on appeal.
Tapper was clearly a more serious case than the present. However, the sentence of 2 years' immediate imprisonment upheld in that case was considerably more severe than that imposed on the appellant.

Circumstances of the offence and the appellant's personal circumstances

The circumstances of the present offence and the appellant's personal circumstances are described above. This was clearly one of the relatively rare cases of an offence against s 321(2) of the Code where a sentence of immediate imprisonment was not required. The appellant's very good antecedents, combined with the fact that he had not targeted a child and the complainant had sought sexual contact on an adult dating application were significant mitigating circumstances.
However, while the offence was far from the most serious kind of offending against s 321(2) of the Code, it remains a serious offence. Two features of this case distinguish it from the other cases referred to above where less severe sentences than suspended imprisonment have been imposed. Firstly, the age disparity between the appellant and complainant was much greater than that of the offenders and complainants in those other cases. The appellant was 32 years old and the complainant 15 years old. A significant age disparity is, as the court recognised in Tapper,[29] an aggravating factor which is capable of being characterised as involving an 'element of abuse'. Secondly, the appellant admitted that the complainant appeared to him to be a boy aged between 15 and 17 years. This made it difficult to conclude, and the trial judge did not conclude, that any belief which the appellant had that the complainant was over 16 years of age was, in the circumstances, reasonable.
[29] Tapper [55], [71], [80].
It may also be noted that the appellant did not plead guilty to the offence until the first day of trial. The lateness of the plea reduces its mitigating effect. It may be noted that, notwithstanding the late plea, the sentencing judge gave the appellant a 25% reduction in the head sentence which would otherwise have been imposed, under s 9AA of the Sentencing Act. That appears to have been an error of law in the appellant's favour, as s 9AA(4)(b) provides that the court must not reduce a sentence under that section by 25% unless the offender pleaded guilty, or indicated he or she would plead guilty, at the first reasonable opportunity. The sentencing judge found that the appellant's plea of guilty was not entered at the first reasonable opportunity.[30]
[30] ts 42.
Further, the complainant's victim impact statement indicated that the offending conduct has had a significant adverse effect on him. While there was no need for personal deterrence, general deterrence remained a significant sentencing consideration in this case.

Disposition of ground

In all of the circumstances of this case, and having regard to all relevant sentencing principles, it was open to the sentencing judge to be satisfied that the seriousness of the appellant's offence was such that only a sentence of imprisonment could be justified, and that it was not appropriate to use any of the sentencing options listed before suspended imprisonment in s 39(2) of the Sentencing Act. This means that the ground of appeal must be dismissed.
That conclusion is not affected by the following matters which were raised by the appellant in his submissions.
The appellant refers to the fact that the sentencing judge approached the sentencing on the basis that the sentence imposed would not have any impact on the appellant's then current immigration status.[31] At the time of the hearing of the appeal, the appellant was not in Australia. The material before us does not make it clear whether the appellant's current residence in Turkey is a consequence of some negative impact of the conviction on his immigration status.
[31] See ts 39, 44.
However, even assuming that the conviction had such a negative impact, it could have made no difference to the sentence which was appropriately imposed. Courts in this State do not sentence an offender on the basis of a prediction about the future exercise of the various statutory discretions given by the Migration Act 1958 (Cth) to officers of the Commonwealth executive government. As was noted in Hickling v The State of Western Australia:[32]
Parliament may confer a discretionary administrative power on an executive officer which is engaged only after a court, exercising judicial power, has imposed an appropriate sentence according to law. In such cases, the determination of the appropriate sentence remains a matter for the exercise of the court's judicial discretion, applying appropriate sentencing principles.
The court's sentencing discretion is not appropriately exercised by reference to predictions about how such an administrative discretion, which arises only after the appropriate sentence is imposed, may be exercised at some future time.
[32] Hickling v The State of Western Australia [2016] WASCA 124 [58] ‑ [59].
The appellant refers to the negative impact which the conviction has had on his social experiences and mental state since the sentence was imposed. Those matters cannot affect the court's assessment of the correctness of the sentence at the time it was imposed.
The appellant also refers to the complainant's conduct in attempting to extort money from him after the offence was committed. While that conduct was serious, it does not significantly impact an assessment of the seriousness of the appellant's offending conduct which preceded that attempt.
The appellant refers to the fact that his suicide attempts and consequent hospitalisation were not addressed at the sentencing hearing. The appellant does not contend that mental illness contributed to the offending. The fact that those events were not advanced as a mitigating factor means that the sentencing judge did not err in failing to have regard to those matters. In all the circumstances of this case, these matters would not lead to the imposition of a different sentence on appeal so as to justify reception of evidence of those matters.[33]
[33] As to the reception of additional evidence on a sentencing appeal, see LWD v The State of Western Australia [2017] WASCA 174 [82] ‑ [87]. As to the circumstances where mental illness may constitute a mitigating factor, see Vucemillo v The State of Western Australia [2017] WASCA 37 [36] ‑ [38], cited in LWD at [88].
For the above reasons, while we would grant the appellant leave to appeal on his ground of appeal against sentence, the appeal must be dismissed.

Appeal against reportable offender status under the CPOR Act

Part 3 of the CPOR Act imposed various obligations on a 'reportable offender'. Section 6 of the CPOR Act relevantly defines a 'reportable offender' to be a person whom a court sentences for a reportable offence. An offence against s 321(2) of the Code is a reportable offence.[34] The reference to the sentencing of an offender includes releasing the offender without sentence under pt 6 of the Sentencing Act or making a conditional release order under pt 7 of the Sentencing Act.[35] The fact that an offence in respect of which a reportable offender has been found guilty becomes spent does not affect the operation of the CPOR Act.[36]
[34] See s 9(a) and s 10(a) of, and sch 1 to, the CPOR Act.
[35] See the definition of 'sentence' in s 3 of the CPOR Act.
[36] Section 111 of the CPOR Act.

The appellant has filed an appeal notice in relation to his status as a reportable offender under the CPOR Act. However, that status derives directly from the operation of the CPOR Act on the exercise of the court's powers under the Sentencing Act following the conviction of an offence against s 321(2) of the Code. That status was an inevitable consequence for the appellant once he had pleaded guilty to the offence against s 321(2) of the Code, and would have followed even if the sentencing judge had made a spent conviction order and released the appellant without sentence.
The appellant's status as a reportable offender under the CPOR Act is not the result of any order made by the District Court, other than the conviction which is dealt with above. The appellant does not have a right of appeal to this court in relation to the operation of the CPOR Act. This appeal must therefore be dismissed as incompetent.

Orders

For the above reasons, the following orders should be made:

CACR 163 of 2016 (appeal against conviction)

1.Leave to appeal on the ground of appeal is refused.
2.The appeal is dismissed

CACR 164 of 2016 (appeal against sentence)

1.Leave to appeal on the ground of appeal is granted on the basis that the ground is understood to be alleging that the sentence imposed was manifestly excessive.
2.The appellant's application in an appeal (to adduce additional evidence in the appeal) filed on 7 April 2017 is dismissed.
3.The respondent's applications in an appeal (to adduce additional evidence in the appeal) filed on 28 April 2017 are dismissed.
4.The appeal is dismissed.

CACR 165 of 2016 (appeal relating to status as reportable offender)

1.The appeal is dismissed.