Warburton v The State of Western Australia

[2009] WASCA 113

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT :   THE COURT OF APPEAL (WA)

CITATION:   WARBURTON -v- THE STATE OF WESTERN AUSTRALIA [2009] WASCA 113

CORAM:   WHEELER JA

PULLIN JA
MILLER JA

HEARD:   10 JUNE 2009

DELIVERED          :   25 JUNE 2009

FILE NO/S:   CACR 179 of 2008

BETWEEN:   ROBERT JOHN WARBURTON

Appellant

AND

THE STATE OF WESTERN AUSTRALIA
Respondent

ON APPEAL FROM:

Jurisdiction              :  DISTRICT COURT OF WESTERN AUSTRALIA

Coram  :O'SULLIVAN DCJ

File No  :IND 565 of 2008

Catchwords:

Criminal law - Appeal against sentence - Aggravated sexual penetration without consent and indecent assaults - Sentence of 8 years - Whether manifestly excessive - Sentencing patterns for sexual penetration without consent

Legislation:

Nil

Result:

Appeal allowed

Category:    D

Representation:

Counsel:

Appellant:     Mr A J Maughan

Respondent:     Ms L D O'Connor

Solicitors:

Appellant:     Andrew Maughan & Associates

Respondent:     Director of Public Prosecutions (WA)

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

Brockman v The Queen (Unreported, WASCA, Library No 970044, 4 February 1997)

McKerlie v The State of Western Australia [2006] WASCA 274

R v Clark [2000] WASCA 229

R v Cleak [2004] WASCA 72

R v Podirsky (1989) 43 A Crim R 404

R v Quartermaine [2000] WASCA 341

Steels v The Queen (Unreported, WASCA, Library No 930306, 27 May 1993)

The State of Western Australia v Akizuki [2008] WASCA 267

The State of Western Australia v Richards [2008] WASCA 134

The State of Western Australia v Turaga [2006] WASCA 199

Woodley v The State of Western Australia [2008] WASCA 92

WHEELER JA: 

The appeal

1. The appellant was convicted after a trial of two counts of indecent assault and one count of sexual penetration without consent in circumstances of aggravation (the circumstance being that the appellant did an act which was likely seriously and substantially to degrade or humiliate the victim).  The appellant was sentenced to 2 years' imprisonment for both counts of indecent assault and 8 years' imprisonment for the aggravated sexual penetration without consent.  All sentences were to be served concurrently, resulting in a total effective sentence of 8 years.  This was backdated to commence on 15 October 2008, to reflect the time spent in custody following conviction, and an order was made that the appellant be eligible for parole.  The appellant now applies for leave to appeal that sentence, the application being heard together with the appeal.  The sole ground of appeal asserts that "the sentence" was manifestly excessive.  It appears that the appeal really concerns the sentence for the aggravated sexual penetration.

The circumstances of the offence

1. The complainant was a 47‑year‑old mentally disabled woman.  She suffered from paranoid schizophrenia and anxiety attacks, and although she lived alone, she required some care from her daughter.  The sentencing judge, having heard the evidence of the complainant at trial, found that it was obvious that she was very vulnerable and intellectually challenged. 

2. The appellant was a friend of a woman who lived next door to the complainant, and he would often speak to the complainant when he came to visit.  The offending took place on two occasions.  On 14 January 2007, the appellant entered the complainant's unit, closed the door and forcefully kissed her, putting his tongue in her mouth.  This was the subject of the first count of indecent assault.  The appellant left after hearing a noise outside.  The next day the appellant again entered the complainant's unit and kissed her.  This was the second count of indecent assault.  While she was on the couch, he removed her shorts and underwear, rubbed some liquid on his penis and vaginally penetrated her with his penis.  After some time, he withdrew and ejaculated on the complainant's breasts; the ejaculation was particularised as the act which was likely seriously and substantially to degrade or humiliate.

The trial

1. The prosecution case was put to the jury on the basis that the complainant, despite her mental disability, was capable of consenting, but did not do so.  The defence was that all sexual activity was consensual. Alternatively, it was argued that the appellant was acting under an honest and reasonable belief that the complainant was in fact consenting by reason of her alleged failure to object.

The offender's personal circumstances

1. The appellant was 41 years old at the time of the offences.  He had a minor criminal record, largely consisting of drug and traffic offences.  The most serious offence was that of aggravated assault on a female in 1985; otherwise the appellant had no history of violent or sexual offences and had never been given a custodial sentence.  He has had a variety of employment in Australia and overseas, including operating a number of businesses.  The appellant admitted to occasional use of amphetamines and cannabis, but denied that his use was problematic, an assertion doubted by the author of the pre‑sentence report.  His family remained supportive of him and he provided the sentencing judge with a number of positive character references from friends and colleagues.

2. The authors of the both the pre‑sentence report and the psychological report provided to the sentencing judge noted that the appellant sought to minimise responsibility for his behaviour and did not display any remorse for his actions.  He continued to claim that the activity was consensual and that the complainant had fabricated the offence to justify her infidelity to her partner.  The author of the psychological report noted a tendency to objectify women and a failure to admit weaknesses or vulnerabilities, while seeking to portray himself as a victim.  In her opinion, this would make it difficult for the appellant to successfully participate in sex offender treatment programmes.

3. During the sentencing submissions, and in the letter from the appellant to the sentencing judge, emphasis was placed on the appellant's practice of Vipassana, a form of meditation.  The appellant became involved in Vipassana meditation in 1996 and lived as a monk for a year while developing the practice. While in custody at Hakea Prison, the appellant ran presentations on the technique to other inmates.  It is submitted in this appeal that this offers a chance for rehabilitation as well as providing a service to others.  The author of the psychological report describes the practice as generally positive, but notes that it may lead to the appellant failing to resolve his emotional problems.

Sentencing remarks

1. His Honour viewed the offences as serious ones which justified a significant term of imprisonment:

   This is a serious case of sexual offending upon a vulnerable woman. You forced yourself upon her in a way which I think is appropriately described as predatory. You took advantage of her vulnerability and in my view, cynically calculated that you could avoid any consequences by denying that you did anything wrong … Your exploitation of the complainant, your using her for no other reason than your sexual gratification must be dealt with by a significant term of imprisonment.  (ts 4)

   His Honour also noted that the complainant's victim impact statement spoke of the offences having made her angry, nervous in the company of men, and anxious when strangers come to her door.

Patterns of sentences for sexual penetration without consent

1. This appeal raises yet again the question of how manifest excess (or, on a State appeal, manifest inadequacy) may be perceived, in cases of sexual penetration without consent.  It has often been said that there is no tariff for such cases.  The circumstances vary widely - both the circumstances of the offender and the circumstances of the offence - and it is not unusual for an offender to commit a number of related offences such as deprivation of liberty, or offences of violence, or a number of different types of sexual penetration without consent, on the same occasion, which will give rise to totality issues.  It is nevertheless possible, I think, to provide some sentencing guidance in cases of this kind.

2. In the case of The State of Western Australia v Akizuki [2008] WASCA 267, Steytler P reviewed a significant number of cases of sexual offending and observed:

   As might have been anticipated, this review of the cases reveals that the circumstances of sexual offending, and of sexual offenders, are almost infinitely variable.  That, in turn, means that the sentence imposed in one case can provide only very limited guidance in deciding what sentence should be imposed for a similar offence in another case.  However, some conclusions can be drawn, as follows:

   (1)An average starting point for a case of penile penetration of the vagina without consent, absent circumstances of aggravation, is in the order of 7 years' imprisonment under the former sentencing regime, or around 4 years and 8 months' imprisonment under the transitional regime.  That starting point takes no account of any factors in mitigation.

   (2)Because the circumstances of sexual offending and sexual offenders are so variable, nothing will be achieved by specifying a range of sentences customarily imposed. The range of potential aggravating features is so huge that features of that kind can either dramatically increase the sentence imposed (bearing in mind that the maximum sentence for an aggravated offence is 20 years' imprisonment: s 326 of the Criminal Code) or have little or no effect on the sentence imposed. The range of potential mitigating factors is at least equally extensive. They might result in a very large reduction in sentence or little or no reduction.

   (3)Nor will anything be achieved by specifying a different starting point for each category of sexual penetration without consent.  It should not be assumed that one form of sexual penetration is necessarily more, or less, serious than another.  As Wheeler JA pointed out in C v The State of Western Australia [2006] WASCA 261 [35], there is no 'hierarchy of sexual penetration'. For example, although digital penetration will ordinarily be less serious than penile penetration, that is not inevitably so. It might, in particular circumstances, be no less serious or even more serious. The seriousness of every offence of unlawful sexual penetration must be determined by its own individual circumstances: C [35] (Wheeler JA); Cavill [266] - [267] (Miller JA). 

   That seems to me to be about as much guidance as can be obtained from the cases.  I appreciate that it is less than sentencing judges might wish.  However, that is a necessary consequence of the court's obligation to tailor each sentence to the individual circumstances of the case, having regard for the maximum penalty provided by the legislature and, to the extent that they can be of assistance, sentences customarily imposed in similar circumstances.  [68] ‑ [69]

   McLure JA agreed with those observations (at [71]), which are broadly consistent with previous observations about the usual sentence or range of sentences, although a starting‑point of around 4 years 8 months under the transitional regime, before factors of mitigation such as a plea of guilty, might, on one view, lead to average sentences just a little lower than existing authority indicates.  The difference, however, is one of months only and I do not consider it to be a significant difference, given that both the observations of Steytler P in Akizuki, and the other observations to which I will shortly refer, are intended to afford no more than some guidance which may assist in establishing whether a sentence is so far in excess of, or so far short of, an appropriate sentence as to reveal error.

3. Earlier observations consistently suggest sentences of 6 to 9 years' imprisonment prior to the transitional regime (4 to 6 years under that regime) as being appropriate in an "average" or "ordinary" case of sexual penetration without consent.  The expressions "average" and "ordinary" are unfortunate, in the sense that they may be taken to understate the ordeal experienced by complainants in cases which are so described.  Even where there are no unusual or aggravating factors, the offence of sexual penetration without consent is a serious invasion of the victim's right to bodily integrity and autonomy, and even where unaccompanied by overt threats or violence, the experience will often be one during which the victim will be fearful that she may suffer either further degradation over and above the sexual penetration itself, or serious injury, or worse.  The after‑effects of such "ordinary" offences of sexual penetration without consent have been demonstrated in case after case to have the potential to affect almost all aspects of the victim's life for many years into the future.  However, the matters to which I have referred are matters which have led the courts to the conclusion that ordinarily a significant sentence of imprisonment is required for a case of sexual penetration without consent, even if it has no unusual or aggravating factors.  I cannot think of a more informative shorthand reference for such cases, than "ordinary" case.  The question then is what is the term one might usually expect in the "ordinary" case. 

4. In R v Podirsky (1989) 43 A Crim R 404, Malcolm CJ said, at 411, that for a single act of sexual assault involving penetration of the vagina by the penis:

   … a sentence of about 6 years is commonly imposed.  It is possible that such a sentence could be reduced by mitigating factors.

5. Podirsky itself was concerned with a series of aggravated sexual assaults, being sexual assaults upon the respondent's stepdaughter when she was between 9 and 15 years of age.  Malcolm CJ noted that in cases involving circumstances of aggravation, where the circumstance was that the complainant was under 16 years of age, a sentence of about 8 years was commonly imposed.  It is not entirely clear what Malcolm CJ meant by the observation that it was "possible" that the common sentence of 6 years could be reduced by mitigating factors.  Although the weight placed upon a plea of guilty as a mitigating factor has varied over time, it has always been the case that pleas of guilty have been given weight in cases of sexual assault, because such offences may be difficult to prove (being often cases of oath against oath) and because such a plea facilitates the course of justice at least to the extent of sparing the complainant the ordeal of undergoing cross‑examination.  Even in 1989, one would have expected that a mitigating circumstance such as a plea of guilty would, in almost every case, have resulted in a not insignificant reduction in sentence.  Other mitigating factors would usually require some weight, however slight, to be given to them.  It appears to me, in that context, that Malcolm CJ was referring to the sentence of 6 years as being a sentence commonly imposed even after a plea of guilty, but was contemplating that there would or could be cases in which other mitigating factors might have such weight as to reduce the sentence still further.  I am fortified in that view both by the course of subsequent authority, and by the fact that Podirsky itself was a case involving a plea of guilty.

6. In Brockman v The Queen (Unreported, WASCA, Library No 970044, 4 February 1997), the court considered an application for leave to appeal against a sentence in relation to, inter alia, a count of sexual penetration involving the appellant inserting his penis into the complainant's vagina. At page 8, Malcolm CJ, with whom Wallwork and White JJ agreed, said:

   Views may differ regarding the question whether the starting point of 6 years in this case was appropriate.  In my view, that starting point was at the lower end of the scale for an offence of this type.  6 years is often the sentence which is imposed after taking into account mitigating factors.

   The appellant in that case had been convicted after trial.

7. In R v Quartermaine [2000] WASCA 341, in reasons with which Kennedy and Wallwork JJ agreed, I said at [16]:

   While there is no 'tariff' for offences of sexual penetration without consent, and the cases show that sentences imposed vary substantially, the general range of sentences imposed for a single act of penetration of the vagina with the penis where the victim is over the age of 16, remains of the order of about 6 years.  A sentence of this kind is generally at the lower end of the scale for offences of this type, and is often the sentence which is imposed after taking into account mitigating factors.  (citations omitted)

8. I repeated these observations in R v Cleak [2004] WASCA 72 (at [13]), in reasons with which Steytler and McKechnie JJ agreed.

9. The range of sentences that I referred to in Cleak, of 6 to 9 years (4 to 6 under the post‑transitional sentencing regime) has been referred to, and the observations applied, in a number of other cases:  see Woodley v The State of Western Australia [2008] WASCA 92 at [21], per McLure JA (Steytler P and Miller JA agreeing); McKerlie v The State of Western Australia [2006] WASCA 274 at 178 ‑ 183, per Roberts‑Smith JA (Steytler P agreeing); The State of Western Australia v Turaga [2006] WASCA 199 at [12], per Wheeler JA, and at [35] per McLure JA with Buss JA agreeing; The State of Western Australia v Akizuki [2008] WASCA 267 at [109] ‑ [117] per Miller JA.

10. It should be noted that in some of the cases referred to above, the range of 6 to 9 years' imprisonment has been specifically said to be a range which does not have regard to mitigating factors - that is, it would be a range of sentences before allowing for matters such as a plea of guilty, rather than the range of sentences finally imposed after taking such factors into account, where they existed.  I do not understand observations of that kind to be inconsistent with observations in cases such as Cleak that a sentence of 6 years is often one imposed after mitigating factors.  The whole point of a range is that there is no single sentence which is appropriate, even in what might be regarded as an "ordinary" case.  The observations about a range of 6 to 9 years, and the observations about the circumstances in which a term of 6 years has often been imposed, demonstrate no more than that it is not unusual for sentences for the "ordinary" sexual penetration without consent to be imposed in circumstances where the sentencing judge takes as a "starting‑point" a sentence which is higher, rather than lower, within that expressed range.

11. Finally, in relation to sentences commonly imposed, there is a recent decision of a coram consisting of five judges of this court, The State of Western Australia v Richards [2008] WASCA 134. The issue of principle in that case was whether s 41(4)(b) of the Criminal Appeals Act 2004 (WA) applied retrospectively. There were also issues concerning the weight which it was appropriate to give to cultural factors which, in the case of an Aboriginal offender, might cause imprisonment to weigh more heavily upon him. However, as the offence in question was one of sexual penetration without consent, Steytler P observed, at [49]:

    Ordinarily, an offence of this kind, where there is no plea of guilty or other exceptional circumstance, can be expected to result in a term of around 5 or 6 years' imprisonment after allowing for the operation of the transitional provisions.  (citations omitted)

12. Martin CJ, McLure and Buss JJA agreed with Steytler P in relation to the question of an appropriate sentence.  Since a term of around 5 or 6 years' imprisonment after allowing for the operation of the transitional provisions would translate to one of 7 1/2 to 9 years before the transitional provisions, that demonstrates, as I have suggested above, that the "starting‑point" which might commonly be adopted would be towards the middle or higher end of the range referred to in the cases cited above, which would result in a minimum custodial period of 2 to 4 years, after allowing for mitigating circumstances such as a plea of guilty, in what might be regarded as an "ordinary" case. 

1. I have endeavoured to ascertain what might be a common sentence that one might expect to see imposed where there had been an offence of sexual penetration without consent accompanied by neither strikingly aggravating factors, nor particular factors of mitigation, because that can provide some assistance in a case which is not accompanied by any particularly unusual features.  As I have noted above, however, that does not mean that sentences which differ from that "common" pattern will be in error.  The circumstances of offenders, and the circumstances of offending, will vary widely.  In particular, having regard to the maximum penalty which the legislature has seen fit to impose, circumstances of aggravation may well justify sentences very substantially exceeding those referred to above, even where they are not circumstances which take the offence into the different, and more serious, category of aggravated sexual assault.

Culpability in this case

1. Against that background, I turn to the present case.  The offence which attracted the sentence of 8 years' imprisonment in this case was, of course, one of aggravated sexual penetration.  That has the result that the maximum sentence available to the learned sentencing judge was 20 years' imprisonment.  However, as Steytler P noted in Akizuki at [68], the range of potential aggravating features in cases of this kind is huge. Aggravating features can dramatically increase the sentence appropriate to be imposed, or their effect may be slight.

2. The circumstance in the present case which was alleged as aggravating was that of the appellant ejaculating on the complainant's breasts.  No doubt that was distressing and unpleasant for the complainant.  However, in the context of what was, in any event, the serious offence of sexual penetration without consent, it is my view that it is not a factor which significantly aggravates the seriousness of the appellant's overall culpability.  One can see, for example, that had he chosen to ejaculate in her vagina instead, that might have been regarded more seriously, notwithstanding that it is not a circumstance which one would expect to see charged as one of aggravation.

3. The other factor which increases the appellant's culpability is plainly that of premeditation.  He had gone to the complainant's home the day before and indecently assaulted her without incident.  It seems, as the learned sentencing judge found, that the appellant calculated that, because of her various disabilities, including the difficulty in expressing herself which was clearly evident at trial, he might well be able to offend against the complainant without her complaints, if she made any, being understood or believed.  Further, he was convicted after trial, so that he did not have available to him the mitigating factor of a guilty plea, and it appeared that he was not remorseful.

4. Even having regard to the factors referred to above, it is my view, however, that the sentence imposed upon the appellant was manifestly excessive.  It is a sentence which would lead to his serving a minimum custodial term of at least 6 years.  The range for the "ordinary" cases to which I have referred above, which would result in a minimum custodial period of at least 2 to 4 years, is significantly less.  In my view, the aggravating factors to which I have referred above do not take the appellant's offending into a category of such seriousness as to justify such a substantial departure from what might be regarded as the sentence ordinarily imposed in such cases. 

   In oral submissions, the State submitted that the appellant's conduct should be regarded as particularly serious offending of its kind, by reason of the fact of the complainant's intellectual and other disabilities.  However, in attempting to distinguish the offending against this complainant from other cases of sexual penetration without consent, those submissions, in my view, failed to acknowledge the vulnerability of most complainants, even where there is no intellectual or other disability.  In almost all cases, a woman who is the subject of a sexual assault will be attacked by someone who either is, or is perceived to be, physically stronger than herself.  As a broad generalisation, woman are not accustomed to the use of physical force and will feel themselves to be vulnerable to force threatened by a male offender, even where, as is often the case, the threat is implicit only.  It is true that, as the State has noted, this appellant's behaviour was "predatory", but that is also a feature of most offending of this kind; offenders rarely attempt sexual penetration without consent unless they have formed a view that they are unlikely to encounter serious resistance.  I assume that the range of sentences customarily imposed has been tailored to take account of those basic facts, although, as I have noted in R v Clark [2000] WASCA 229 at [12] (Kennedy and Pidgeon JJ agreeing):

   I would add that the mechanical application of a tariff in such cases would lead to the imposition of sentences which could be far too lenient in some

cases and too severe in others.  A very significant feature of the majority of sexual assault offences is the element of fear caused to the victim.  Whether it is committed by a stranger or by a person known to the victim, the victim will almost inevitably have real fears about the degree of force to which the offender may resort in order to overcome resistance, or to further humiliate her, or to ensure her silence.  Many victims fear for their lives and nearly all fear further violence of some kind.  The experience is seen by the victim as a degrading one both at the time, and in recollection after the event, and this too is a significant feature of the offence.  The extent to which the circumstances are likely to give rise to such fears and to such feelings will be significant factors in determining the seriousness of the particular offence. 

1. Finally, I note that, in the only case which I have discovered in which the complainant suffered an intellectual disability, the sentence then imposed was one of 7 1/2 years' imprisonment, which would at that time have equated to a minimum custodial period of 3 years.  That case is Steels v The Queen (Unreported, WASCA, Library No 930306, 27 May 1993). That sentence was imposed after trial, as was this. The complainant in that case, however, had a very serious intellectual handicap which gave rise to real questions concerning her ability to consent to sexual intercourse at all. The appellant in that case had worked with the intellectually handicapped, and encountered the complainant during the course of that work. That was an aggravating circumstance, since he agreed that it was considered unethical in the field of work with the intellectually handicapped, for workers to engage in sexual intercourse with those with whom they worked. On the other hand, there did not seem to be a great degree of premeditation, and he had an unblemished record of service and a previous good reputation in the particular field of social work in which he was engaged.

Conclusion

1. In the circumstances of the present case, it appears to me that an appropriate sentence would have been one of 6 1/2 years' imprisonment, which would require the appellant to serve a minimum custodial term of 4 1/2 years before he would be eligible for release.  I would grant leave to appeal, allow the appeal, set aside the sentence imposed by the learned sentencing judge, and substitute the sentence I have mentioned.

2. PULLIN JA:  I agree with Wheeler JA.

3. MILLER JA:  I agree with Wheeler JA.