Vre v The State of Western Australia
[2021] WASCA 185
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: VRE -v- THE STATE OF WESTERN AUSTRALIA [2021] WASCA 185
CORAM: BUSS P
MAZZA JA
HEARD: 8 OCTOBER 2021
DELIVERED : 19 OCTOBER 2021
FILE NO/S: CACR 126 of 2021
BETWEEN: VRE
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram: STAVRIANOU DCJ
File Number : IND 456 of 2019
Catchwords:
Criminal law - Application for leave to appeal against sentence - Application for bail pending appeal - Appellant sentenced to 18 months' immediate imprisonment for one count of sexually penetrating a child under the age of 13 years, by engaging in cunnilingus, contrary to s 320(2) of the Criminal Code (WA) - Appellant was 19 years old and the complainant was aged between 6 and 7 years old at the time of the offending - Complainant was the appellant's stepsister - Whether the sentence imposed by the sentencing judge was manifestly excessive as to type - Whether the sentencing judge erred in concluding that it was not appropriate to suspend or conditionally suspend the term of imprisonment
Legislation:
Criminal Code (WA), s 320(2)
Result:
Application for bail pending appeal dismissed
Leave to appeal refused
Appeal against sentence dismissed
Representation:
Counsel:
| Appellant | : | T R Stephenson |
| Respondent | : | B M Murray |
Solicitors:
| Appellant | : | T R Stephenson |
| Respondent | : | Director of Public Prosecutions (WA) |
Case(s) referred to in decision(s):
Brennan v The State of Western Australia [2020] WASCA 20
Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321
KAT v The State of Western Australia [2017] WASCA 11; (2017) 264 A Crim R 367
LJP v The State of Western Australia [2010] WASCA 85
Monisse v The State of Western Australia [2021] WASCA 52
Wilson v The State of Western Australia [2010] WASCA 82
JUDGMENT OF THE COURT:
Before the court are the appellant's applications for leave to appeal against sentence and for bail pending appeal. The applications were heard together because the resolution of them will depend upon this court's view of the merit of the appeal against sentence.
On 5 March 2021, the appellant was convicted in the District Court after a trial before Stavrianou DCJ and a jury of one count of sexually penetrating A, a child under the age of 13 years, by engaging in cunnilingus, contrary to s 320(2) of the Criminal Code (WA). This offence carries a maximum penalty of 20 years' imprisonment.
On 30 August 2021, the appellant was sentenced by his Honour to 18 months' immediate imprisonment, with eligibility for parole, to commence that day.
The appellant seeks leave to appeal on a single ground of appeal, which, in effect, alleges that the sentence was manifestly excessive as to the type of imprisonment that was imposed. The appellant contends that the sentence of imprisonment should have been suspended, with or without conditions.
The application for bail pending appeal is supported by the affidavits of the appellant and his counsel, Timothy Richard Stephenson, each of which was sworn on 17 September 2021. The written submissions in support of the application for bail, in effect, contend exceptional circumstances exist that justify a grant of bail pending appeal, having regard to the asserted strength of the ground of appeal. Further, the appellant submits that there is a prospect that, unless the appellant is granted bail, by the time the appeal is heard and determined, the appeal would be rendered nugatory if the appellant were successful.
For the reasons that follow, the proposed ground of appeal has no reasonable prospects of succeeding and the appeal against sentence must be dismissed. In these circumstances, the application for bail pending appeal must also be dismissed.
The facts
There is no dispute as to the facts of the offending as found by the sentencing judge.
The victim, A, is the appellant's stepsister. She was born in September 2010 and was, at the time of the offence, aged between 6 and 7 years old. The appellant, who was born in October 1997, was, at the time of the offence, 19 years of age.
The events the subject of the offence occurred in or about September 2017 at a time when A and the appellant were living under the same roof, along with the appellant's mother and stepfather.
Early in the day, the appellant kissed and licked A in the mouth.
Later on the same day, the appellant took off A's clothes and performed an act of cunnilingus upon her. He did so while A was reciting her ABCs. His Honour found that penetration lasted a 'very brief' period of time and, while the appellant took advantage of A's vulnerability, there were no physical threats, coercion or violence on the appellant's part.[1]
[1] ts 416.
After A put her clothes back on, she told her father about what had occurred. She described the appellant as having licked her 'minny'.
His Honour found that the appellant's conduct had not been repeated.[2]
[2] ts 416.
The appellant's personal circumstances
While the appellant was 19 years of age when the offending occurred, he was 23 years of age when he was sentenced.
He had what his Honour described as 'a particularly difficult upbringing' in which he was bullied.[3] He completed year 10, but has never been employed. At the time he was sentenced, the appellant was in receipt of Centrelink payments and lived separately in accommodation he shared with another person. He has occasional contact with his mother, but no contact with his biological father who lives overseas.
[3] ts 417.
The appellant has no prior convictions and has not offended since the commission of the offence. The sentencing judge was provided with two letters of support from the appellant's grandmother. Essentially, she spoke of the appellant in positive terms and said that he was a good person.[4]
[4] ts 417.
The reports
The sentencing judge was provided with a pre‑sentence report and a number of expert reports concerning the appellant. The expert reports were written by a clinical neuropsychologist, Dr Elizabeth Vuletich (dated 5 August 2019 and 6 March 2020), a speech pathologist, Ms Nicole Torre (dated 8 April 2020), a consultant psychiatrist, Dr Adam Brett (dated 12 October 2019 and 8 January 2020) and a clinical and forensic psychologist, Dr James McCue (dated 23 August 2021).
The effect of these reports was described by his Honour in the sentencing remarks.[5]
[5] ts 417 - 419.
In essence, the reports reveal:
(a)The appellant does not have a major mental illness, nor is he intellectually disabled.
(b)The appellant has a language disorder with some similarities to autism. Dr Vuletich described the appellant as having 'numerous autistic traits'.
(c)Ms Torre found the appellant demonstrated a moderate receptive disorder and a severe expressive language disorder.
(d)In Dr McCue's opinion, the appellant did not meet the diagnostic criteria for paraphilias or serious psychological pathology and that the appellant would struggle 'to achieve treatment outcomes in a custodial group‑based program' because of his language difficulties. Dr McCue considered that the appellant's language skills would make time in custody 'more onerous' for him than for the average prisoner. Finally, in Dr McCue's opinion, there was no evidence that the appellant was at 'imminent risk' of reoffending in a similar way.
The victim impact statement
His Honour was provided with a short victim impact statement signed by A on 20 August 2021, when she was just short of her 11th birthday.
A feels sad about what happened to her and that when she goes to school 'it is always in [her] brain'. It is clear from the statement that she misses the appellant and that the biggest impact on her has been that she cannot see him. A said that when she has had to talk about what happened with her mother or with the police, she becomes upset or very nervous. She said that she still has nightmares, trouble sleeping and that she does not eat much because she feels sick. Her biggest fear is that if she talked about what happened, the appellant 'would get in trouble'.
The sentencing remarks
His Honour's sentencing remarks included the following.
His Honour identified as mitigating factors:
(a)the appellant's youth;
(b)the absence of any prior convictions;
(c)his language disability, which his Honour found 'would make prison time harder for you than the average prisoner';[6]
(d)the low risk of the appellant reoffending, as identified by Dr McCue; and
(e)the appellant's difficult upbringing.
[6] ts 419.
His Honour observed that the appellant had not reoffended in any way since the commission of the offence and acknowledged the character references written by the appellant's grandmother.[7]
[7] ts 421.
His Honour made express reference to the difficulties the appellant would encounter with respect to his treatment needs in custody, having regard to his language difficulties.[8]
[8] ts 419.
In assessing the seriousness of the appellant's offending, his Honour had regard to the victim's young age (6 or 7 at the time of the commission of the offence), her vulnerability and that, as his stepsister, A was entitled to expect the appellant's protection and not to be harmed by him. His Honour also had regard to the victim impact statement and noted, in effect, that the offending had led to confusion and difficulty for A in respect of her family relationship.[9]
[9] ts 419 - 420.
His Honour said that the appellant had engaged in 'serious offending'[10] and said that the dominant sentencing considerations in sentencing offenders for offences of the kind committed by the appellant were general and personal deterrence. His Honour said that the effect of general deterrence in this case was, to some extent, moderated by the appellant's personal circumstances.[11]
[10] ts 420.
[11] ts 420.
The sentencing judge concluded, in effect, that the only appropriate sentence was a term of imprisonment.[12] He then considered whether the sentence should be suspended. In doing so, his Honour correctly said that, before he could impose a term of immediate imprisonment, he needed to be positively satisfied that the option of suspension was not appropriate.[13] His Honour, again correctly, stated that, in deciding whether to suspend the term of imprisonment, he was required to consider 'anew all of the relevant circumstances and thus to adopt a two‑step approach'.[14] His Honour said that he had revisited all of the considerations relevant to the imposition of the term of imprisonment. After repeating, in substance, the mitigating and aggravating circumstances he had previously identified, his Honour concluded:[15]
I'm not persuaded that given the nature, gravity and extent of your offending that suspension, either conditionally or otherwise, would be warranted.
The offending in this case is too serious to allow for suspension, either conditional or otherwise. The only appropriate disposition is one of immediate imprisonment.
[12] ts 420.
[13] ts 420 - 421.
[14] ts 421.
[15] ts 421.
The ground of appeal
As we have said, the ground of appeal alleges that the sentence of 18 months' immediate imprisonment was manifestly excessive as to type. It is not suggested by the appellant that a term of imprisonment was not warranted, nor is it suggested that the length of the term that was imposed is too long.
While the appellant accepted that the offence was serious, it was asserted that 'it is difficult to find a case where the facts of the offending are so minor', having regard to the brief duration of the penetration, and 'where the effect on the victim has been so slight (according to the victim impact statement)'.[16] It was further submitted that, having regard to the mitigating factors, particularly the appellant's age, prior good record and language difficulties, it was not reasonably open to his Honour to be positively satisfied that a suspended or conditionally suspended term of imprisonment was inappropriate.
[16] Written submissions, par 28.3.
The relevant principles applicable to this appeal
The general principles relevant to this appeal were stated in Wilson v The State of Western Australia in these terms:[17]
The relevant principles on which an appellate court operates are dictated by the Criminal Appeals Act 2004 (WA) and by previous decisions of the High Court and of this court that we are bound to follow or that represent persuasive authority. Those principles include the following.
1.The imposition of a sentence involves the exercise of a discretion. An appellate court can only intervene if the appellant demonstrates that the judge erred in exercising the discretion in one of two ways. The first is called express error and it involves acting on a wrong principle, for example, by mistaking the law, mistaking the facts, taking into account an irrelevant matter or failing to take into account a relevant consideration. The second is referred to as implied or inferred error. It arises where, although it is not possible to discover the exact nature of the error, the end result is so unreasonable or unjust that the court must conclude that a substantial wrong has occurred: House v The King (1936) 55 CLR 499, 505. In most instances a challenge based on implied error will involve the contention that an individual sentence is manifestly excessive (or inadequate) and (or) that the total effective term imposed for all charges offends the totality principle.
2.It follows that the appeal court will not intervene simply because the members of the court, had they been sentencing the offender at the original hearing, might have imposed a different sentence: House, 505.
3.Even if error is demonstrated the appellate court can intervene only if it is satisfied that a different sentence should have been imposed at the original hearing: Criminal Appeals Act s 31(4)(a).
4.An appellant must obtain leave to appeal on each ground that she or he wishes to advance in support of the appeal and the court must not grant leave unless it is satisfied that the ground has a reasonable prospect of succeeding: Criminal Appeals Act s 27(1) and (2).
5.To have a reasonable prospect of succeeding, a ground must have a rational and logical prospect of succeeding, or a real prospect of success: Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473 [25] - [61], especially [56].
[17] Wilson v The State of Western Australia [2010] WASCA 82 [2].
In Monisse v The State of Western Australia,[18] this court summarised the relevant sentencing provisions and legal principles applicable to the imposition of a suspended or conditionally suspended term of imprisonment. For convenience, we will repeat this summary:
[18] Monisse v The State of Western Australia [2021] WASCA 52 [35] ‑ [42].
By s 6(4) of the Sentencing Act:
A court must not impose a sentence of imprisonment on an offender unless it decides that -
(a)the seriousness of the offence is such that only imprisonment can be justified; or
(b)the protection of the community requires it.
Section 76 of the Sentencing Act provides, relevantly:
(1)A court that sentences an offender to a term of imprisonment, or to an aggregate of terms of imprisonment, of 60 months or less may order that the term or terms be suspended for a period set by the court; but not more than 24 months.
(2)Suspended imprisonment is not to be imposed unless imprisonment for a term or terms equal to that suspended would, if it were not possible to suspend imprisonment, be appropriate in all the circumstances.
Similarly, s 81(1) of the Sentencing Act provides that a prescribed court that sentences an offender to a term of imprisonment, or to an aggregate of terms of imprisonment, of 60 months or less may order that the whole of the term or terms be suspended for a period set by the court, but not more than 24 months, subject to certain conditions. Section 81(2) provides that conditional suspended imprisonment is not to be imposed unless imprisonment for a term or terms equal to that suspended would, if it were not possible to suspend imprisonment, be appropriate in all the circumstances.
Section 4(4) of the Sentencing Act provides that, in the Act, a reference to the suspension of a term or terms of imprisonment is a reference to a suspension of the whole of the term or terms or part of the term or terms.
The limit of 5 years specified in s 76(1) and s 81(1) reflects Parliament's view that if an offender is sentenced to a term of imprisonment, or to an aggregate of terms of imprisonment, in excess of the specified limit, the offending will be of an order of seriousness which precludes suspension or conditional suspension.
The limit of 5 years also reflects Parliament's view that a term of imprisonment, or an aggregate of terms of imprisonment, may appropriately be suspended even though the offender has committed an offence or offences that are of sufficient seriousness as to warrant a sentence or total sentence of 5 years' imprisonment.
A court must not impose a term of immediate imprisonment unless satisfied, having regard to the sentencing principles set out in div 1 of pt 2 of the Sentencing Act, that it is not appropriate to impose suspended or conditional suspended imprisonment. See s 39(2) and s 39(3).
A sentencing judge must be positively satisfied that it is not appropriate to suspend or conditionally suspend a term of imprisonment before the term can be ordered to be served immediately. In a borderline case, it may be reasonably open to impose different types of sentences. See Fogg v The State of Western Australia. The discretion to suspend or conditionally suspend a term of imprisonment is not confined by considerations relating to rehabilitation and mercy. See Dinsdale v The Queen. The objective features of an offence may, in a particular case, outweigh the personal considerations of rehabilitation and mercy. See Dinsdale [86].
Finally, the relevant sentencing principles in respect of offences such as the one committed by the appellant are well‑established. The primary sentencing considerations for such offences are appropriate punishment of the offender and personal and general deterrence, having regard to the need to protect vulnerable children. Matters personal to an offender are ordinarily of less mitigatory weight than might otherwise be the case. Any sexual penetration of a child is serious, as illustrated by the maximum penalty for an offence contrary to s 320(2) of the Criminal Code. While there is no tariff for offences of the kind committed by the appellant, ordinarily, as a matter of fact, a sentence of immediate imprisonment is the only appropriate disposition.
Disposition
Contrary to the submission of the appellant, the present offence was not 'so minor'. Such a characterisation fails to have regard to the very young age of the victim, her vulnerability and the impact of the offending upon her. On the day in question, the appellant inappropriately kissed her on the mouth and later engaged in the act of cunnilingus described in [11] above. While perhaps opportunistic, it must be said that the appellant plainly took advantage of his stepsister who, as his Honour pointed out, was entitled to the appellant's protection. We acknowledge the appellant's communication difficulties which were given, it appears, considerable mitigatory weight by the sentencing judge. However, there is nothing in the appellant's psychological or psychiatric makeup which impairs his ability to discern that such conduct was morally wrong.
We reject the proposition that the offending has had little effect upon the victim. It is clear from the victim impact statement that the offending has not been forgotten by her and has adversely affected her wellbeing and happiness. Unfortunately, and without justification, she feels guilt for reporting what occurred and for the appellant's subsequent incarceration. Of course, it cannot be overlooked that the victim is still young and the psychological harm may not be fully realised until sometime in the future.
As already stated, there is no tariff for sexual offences. There are only a few cases that could be said to be comparable, being LJP v The State of Western Australia;[19] KAT v The State of Western Australia[20] and Brennan v The State of Western Australia.[21] The facts and circumstances of the offending in these cases, as well as the offenders, differ to some degree from the present case. The outcomes of these cases and their small number do not assist the appellant.
[19] LJP v The State of Western Australia [2010] WASCA 85.
[20] KAT v The State of Western Australia [2017] WASCA 11; (2017) 264 A Crim R 367.
[21] Brennan v The State of Western Australia [2020] WASCA 20.
It is not suggested, nor could it be suggested, that his Honour failed to have regard to the mitigating circumstances referred to in [23] above. He did so in considering whether a term of imprisonment was appropriate, and then again in accordance with the principles enunciated by the High Court in Dinsdale v The Queen[22] when considering whether to suspend or conditionally suspend the term of imprisonment.
[22] Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321.
The sentencing judge carefully weighed the circumstances personal to the offender and the objective features of the offence and concluded, in effect, that immediate imprisonment was the only appropriate disposition despite the mitigating personal circumstances. This approach was consistent with the principles set out in Dinsdale (see Kirby J at [87]) and, in our opinion, his Honour's conclusion that it was not open to him to impose a suspended term of imprisonment or a conditionally suspended term of imprisonment was correct.
Having regard to all relevant facts, circumstances and legal principles, in our opinion, the sentence of 18 months' immediate imprisonment was a merciful sentence which properly took into account the mitigating circumstances. The sentence of 18 months' immediate imprisonment is not unreasonable or plainly unjust. Implied error has not been demonstrated. We would refuse leave to appeal, with the consequence that the appeal against sentence must be dismissed. Having disposed of the appeal in this way, the application for bail pending appeal falls away and must be dismissed.
Orders
The orders we would make are as follows:
1.The application for bail pending appeal is dismissed.
2.Leave to appeal is refused.
3.The appeal against sentence is dismissed.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
TW
Associate to the Honourable Justice Mazza
19 OCTOBER 2021
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