Zimmerman v The State of Western Australia - [2009] WASCA 211

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE COURT OF APPEAL (WA)

CITATION: ZIMMERMAN -v- THE STATE OF WESTERN AUSTRALIA [2009] WASCA 211

CORAM: McLURE P
OWEN JA
PULLIN JA

HEARD: 8 OCTOBER 2009

DELIVERED : 1 DECEMBER 2009

FILE NO/S: CACR 12 of 2009

BETWEEN: ROBERT CHARLES ZIMMERMAN
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent

ON APPEAL FROM:
Jurisdiction              :  DISTRICT COURT OF WESTERN AUSTRALIA
Coram  :GOETZE DCJ
File No  :IND 1032 of 2008

Catchwords:

Criminal law - Sentences - Sexual penetration without consent - Whether fact victim was under 16 years old was relevant in sentencing if appellant had an honest and reasonable belief the victim was over 16 years old - Mitigatory value of pleas of guilty

Legislation:

Acts Amendment (Criminal Penalties and Procedure) Act 1982 (WA)
Criminal Appeals Act 2004 (WA), s 31(4)(a)
Criminal Code (WA), s 1(1), s 24, s 325, s 326, s 582, s 656
Criminal Law and Evidence Amendment Act 2008 (WA), s 4
Criminal Procedure Act 2004 (WA), s 126
Sentencing (Consequential Provisions) Act 1995 (WA)
Sentencing Act 1995 (WA), s 7

Result:

Appeal dismissed

Category: B

Representation:

Counsel:

Appellant: Mr A E Eyers
Respondent: Mr J A Scholz

Solicitors:

Appellant: Sam Vandongen
Respondent: Director of Public Prosecutions (WA)

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

Cameron v The Queen [2002] HCA 6; (2002) 209 CLR 339
Caporn v The State of Western Australia (No 2) [2008] WASCA 26
H v The State of Western Australia [2006] WASCA 53; (2006) 163 A Crim R 151
Ibbs v The Queen (1987) 163 CLR 447
Moody v French [2008] WASCA 67; (2008) 36 WAR 393
The Queen v De Simoni (1981) 147 CLR 383
The State of Western Australia v Majok (2005) 152 A Crim R 25
Turan v The Queen (1990) 2 WAR 140
Wade v The Queen [2001] WASCA 252

McLURE P: I have had the advantage of reading the reasons for judgment of Owen JA and Pullin JA. I differ from them on the question of whether the sentencing judge erred in taking into account the age of the complainant when sentencing the appellant. However, I too would dismiss the appeal because I am of the opinion that a different sentence should not have been imposed: Criminal Appeals Act 2004 (WA), s 31(4)(a). These are my reasons for that conclusion.
The facts are set out in the reasons of Pullin JA and not repeated here. It is sufficient for present purposes to note that the appellant was charged with two offences of sexual penetration of the complainant contrary to s 326 of the Criminal Code (WA) (the Code). Section 326 provides:
Aggravated sexual penetration without consent
A person who sexually penetrates another person without the consent of that person in circumstances of aggravation is guilty of a crime and liable to imprisonment for 20 years.
Alternative offence: s 321(2) or (4), 322(2) or (4), 323, 324 or 325.
The maximum penalty for a breach of s 326 is 20 years. Both counts alleged that the circumstances of aggravation were that the appellant did bodily harm to the complainant and that the complainant was over the age of 13 years and under the age of 16 years.
On the morning of the first day of the trial, the appellant was permitted to enter pleas of guilty to two counts of having sexually penetrated the complainant without her consent. He was also permitted to enter pleas of not guilty to each of the circumstances of aggravation alleged in the two counts. There was a trial of those issues before a jury. As explained by Pullin JA, the course permitted by the trial judge is not in accordance with the Criminal Procedure Act 2004 (WA), s 126.
At the conclusion of the trial, the jury returned verdicts of not guilty in relation to both circumstances of aggravation pleaded in count 1. The appellant was convicted of the alternate offence under s 325. That section makes it an offence to sexually penetrate another person without the consent of that person. The maximum penalty for a breach of s 325 is 14 years.
In relation to count 2, the jury found the appellant guilty of doing bodily harm to the complainant and not guilty of the second circumstance of aggravation, namely that the complainant was over the age of 13 years and under the age of 16 years. The appellant was convicted of a breach of s 326 of the Code.

Ground 1 - age of complainant

In sentencing the appellant the sentencing judge took into account the proven fact that the complainant was aged 14 years at the time of the offences. The appellant contends the sentencing judge erred in so doing. The legislative history of the relevant provisions of the Code and the Sentencing Act 1995 (WA) provides the necessary background. Under the Code as it stood prior to the commencement of the Acts Amendment (Criminal Penalties and Procedure) Act 1982 (WA) (the 1982 Act), s 582 required that '[i]f any circumstance of aggravation is intended to be relied upon, it must be charged in the indictment'. The expression 'circumstance of aggravation' was defined in s 1(1) of the Code. That section provided that unless the context otherwise indicates:
'Circumstance of aggravation' means and includes any circumstance by reason whereof an offender is liable to a greater punishment than that to which he would be liable if the offence were committed without the existence of that circumstance.
A circumstance of aggravation as defined was not intended to encompass an element of the offence charged. The High Court in The Queen v De Simoni(1981) 147 CLR 383 considered whether an uncontested fact constituting a circumstance of aggravation as defined in the Code could be taken into account in the exercise of the general sentencing discretion as one of the circumstances of the offence if it was not charged in the indictment. A majority (Gibbs CJ, Mason & Murphy JJ) held it could not. The dissentients (Wilson & Brennan JJ) concluded that an uncontested but uncharged circumstance of aggravation could not increase the statutory maximum penalty but could be taken into account in the exercise of the sentencing discretion as one of the circumstances of the offence.
In response to De Simoni, the legislature passed the 1982 Act which amended s 582 of the Code to delete the requirement that circumstances of aggravation be charged in the indictment, and amended s 656 by adding the following:
When considering the sentence proper to be passed the Court may have regard to a circumstance of aggravation whether or not that circumstance has been charged in the indictment but, notwithstanding any other provision of this Code, if the circumstance has not been charged in the indictment the Court shall not impose on the offender a punishment that is greater than that to which he would have been liable if the offence had been committed without the existence of that circumstance.
It is clear from the second reading speech that the legislative intent was that a proven (or uncontested) circumstance of aggravation could be taken into account in the exercise of the sentencing discretion but could not increase the statutory maximum penalty unless it was charged in the indictment.
Section 656 was deleted by the Sentencing (Consequential Provisions) Act 1995 (WA). It was replaced by s 7(3) of the Sentencing Act. Section 7 relevantly provides:
(1)Aggravating factors are factors which, in the court's opinion, increase the culpability of the offender.
…
(3)If the statutory penalty for an offence is greater if the offence is committed in certain circumstances than if it is committed without the existence of those circumstances, then ‑
(a)an offender is not liable to the greater statutory penalty unless he or she has been charged and convicted of committing the offence in those circumstances; and
(b)whether or not the offender was so charged, the existence of those circumstances may be taken into account as aggravating factors.
The opening words '[i]f the statutory penalty for the offence is greater' in s 7(3) confine its operation to circumstances that increase the statutory maximum penalty; the subsection does not apply if the 'certain circumstances' are also an element of the offence charged.
The definition of the term 'circumstance of aggravation' in the Code was removed by the Criminal Law and Evidence Amendment Act 2008 (WA), s 4. The explanatory memorandum for that Act explains that the definition was deleted because:
The definition previously complemented section 656 of the Criminal Code, relating to the effect of aggravated circumstances on sentence, before that section was repealed by the Sentencing (Consequential Provisions) Act 1995. The phrase is used throughout the Criminal Code and is defined according to the offences in the respective Part to which it applies.
It is apparent from the legislative history that it was not the legislature's intention to permit circumstances of aggravation to be taken into account as general sentencing considerations if they are not proven. The statutory purpose of s 656 and its replacement s 7(3)(b) was to permit those circumstances to be taken into account as general sentencing considerations, whether or not they are charged in the indictment, provided they are proven.
The parties accept that, as a matter of construction, the circumstances of aggravation referred to in s 326 constitute elements of the offence. There is authority supporting that conclusion: Ibbs v The Queen (1987) 163 CLR 447; Turan v The Queen (1990) 2 WAR 140, 149; The State of Western Australia v Majok (2005) 152 A Crim R 25 [11]. Accordingly, s 7(3) of the Sentencing Act has no application.
The question then arises whether the court can take into account as a general sentencing consideration the age of the victim notwithstanding the jury's verdict of not guilty of the allegation as charged that the complainant was over the age of 13 years and under the age of 16 years. In my view the answer is no, notwithstanding the evidence established that the complainant was aged 14 at the time the offences were committed. The not guilty verdict on that circumstance of aggravation was based on the defence of mistake in s 24 of the Code. Section 24 provides:
A person who does or omits to do an act under an honest and reasonable, but mistaken, belief in the existence of any state of things is not criminally responsible for the act or omission to any greater extent than if the real state of things had been such as he believed to exist.
The jury found the appellant not guilty because the prosecution did not negative the appellant's evidence that, at the time of the offences, he had an honest and reasonable but mistaken belief that the complainant was aged 16 or 17 years. (I note by way of aside that the facts of this case should have raised for determination the legal question of whether s 24 requires a causal connection between the act or omission and the relevant mistake of fact.)
By virtue of s 24, the appellant is not criminally responsible for the act of sexual penetration without the complainant's consent 'to any greater extent than if the real state of things had been such as he believed to exist'. Thus, the criminal responsibility of the appellant is to be determined as if the complainant was over the age of 16 years. The term 'criminally responsible' is defined in the Code to mean liable to punishment as for an offence. It is clear from its terms that s 24 applies to a circumstance of aggravation that is an element of an offence. As the appellant's criminal responsibility (liability to punishment) in respect of count 2 (the s 326 offence) is to be determined on the basis that the complainant was aged 16 or 17, he cannot be sentenced on the basis that she was 14. That outcome cannot, in my respectful opinion, be avoided by ignoring the complainant's age when assessing the culpability of the offender but taking it into account in determining the level of seriousness of the circumstances of the offence. The latter consideration has a direct impact on the appropriate sentence. Ordinarily, the younger the victim the greater the seriousness of the offending which in turn is reflected in the penalty.
Further, the jury having found the appellant not guilty of the circumstance of aggravation based on the complainant's age in respect of count 1, the appellant cannot in my view be sentenced for the alternative offence under s 325 on a factual basis inconsistent with the finding of the jury.
That is, s 6(2)(b) of the Sentencing Act cannot apply where one of the circumstances of the offending is an element of an offence that has been charged but not proven against the offender. I would uphold this ground.

Guilty plea

The extent to which a plea of guilty actually facilitates the administration of justice is relevant in the assessment of the weight to be given to the subjective consideration, namely the willingness of an offender to facilitate the administration of justice: Moody v French [2008] WASCA 67; (2008) 36 WAR 393 [38]; H v The State of Western Australia [2006] WASCA 53; (2006) 163 A Crim R 151 [73]. In particular, it can be inferred that the extent of the actual facilitation of justice was intended by the offender and thus reflects a willingness to facilitate the administration of justice to that extent. If the sentencing judge took into account the actual facilitation of justice as an end in itself, that would be an error (Cameron v The Queen [2002] HCA 6; (2002) 209 CLR 339 [13] ‑ [14]) but one which has no material effect on the outcome in this case.

Whether different sentence should have been imposed

I approach this question on the basis that the complainant should be taken to be aged 16 or 17 at the time of the offences. It remains the case that the circumstances of the offending are serious. The complainant was vulnerable because of her youth and her level of intoxication. After the

first offence, the appellant used significant violence against the complainant to facilitate the second offence. Most worryingly, the appellant continued to maintain that the complainant consented to the sexual contact notwithstanding his pleas of guilty. That indicated both a lack of remorse and failure to accept responsibility for his conduct. The psychiatric report identifies factors of the appellant's presentation that are consistent with a diagnosis of antisocial personality disorder. The appellant was placed in the moderate to high risk category for sexual recidivism.

The appellant has a substance abuse problem that has contributed to a course of offending that has increased in seriousness. These were his first offences of a sexual nature but they were committed whilst he was on bail.
Having regard to all the relevant circumstances (including his youth) I am of the opinion that a different sentence should not be imposed.
OWEN JA: I have read the reasons that Pullin JA proposes to publish. I agree with his Honour that the appeal should be dismissed. Subject to two matters, with which I deal below, I agree with Pullin JA's reasons for coming to that conclusion.
The appellant was charged with two counts of aggravated sexual penetration without consent. The circumstances of aggravation alleged against him were twofold; namely, that he did bodily harm to the complainant and that she was over the age of 13 years and under the age of 16 years. It is common ground that at the time the offences were committed the complainant was 14 years of age. The appellant admitted the sexual penetrations but said he thought the complainant was 16 or 17, thus requiring the prosecution to negative an honest and reasonable belief held by him about her age. The jury acquitted the appellant of both of the circumstances of aggravation in relation to one count and of the 'age circumstance' in relation to the other.
In his sentencing remarks the trial judge noted, on a couple of occasions, that the complainant was 14 years of age. The gravamen of ground 1 is that it was an error to take into account the age of the complainant when assessing the seriousness of the offence.
During argument on the appeal an issue arose as to whether, in the peculiar context of this case, it was legally apposite to take the age of the complainant into account as an aggravating factor under s 7(3) of the

Sentencing Act 1995 (WA) and how that was to be viewed in relation to the grounds of appeal.

As Pullin JA has pointed out, there is a distinction to be drawn between offences where the statutory penalty can differ depending on whether or not the nominated 'circumstances of aggravation' are established and those in which nominated 'circumstances of aggravation' are elements of the offence. The phrase 'circumstances of aggravation' is to be understood differently depending on which of these two categories is under consideration. And the phrase 'aggravating factors' has a different meaning again. Section 7(3) uses the phrase 'aggravating factors' rather than 'circumstances of aggravation'. The opening words of s 7(3) are:
If the statutory penalty for an offence is greater if the offence is committed in certain circumstances than if it is committed without the existence of those circumstances, then …
That language is consistent only with 'circumstances of aggravation' as that term is used in the first category of offences. It must follow, therefore, that the section is directed at offences in the first category and not to those in the second category. It follows that s 7(3) of the Sentencing Act does not apply to this case.
However, there is a curious aspect of the section that requires clarification. Section 7(3)(a) provides that a person is not liable to the greater statutory penalty unless the person has been 'charged and convicted of committing the offence in those circumstances'. That would seem to be an obvious principle and the legislature may well have inserted it out of an abundance of caution. Section 7(3)(b) then provides that whether or not the person is charged with those circumstances (but with no reference to 'convicted') the circumstances can be taken into account as aggravating factors. I doubt it was the intention of the legislature to enable a judge to sentence a person who was charged but acquitted to ignore the acquittal and sentence on the basis of circumstances of aggravation.
The appellant was charged with 'circumstances of aggravation' as that term is understood in relation to the second category of offences. He was acquitted of the circumstances relating to the age of the complainant. The question still arises what, if any, part the complainant's age could legitimately play in the sentencing process.
Section 6(1) mandates that a sentence should be commensurate with the seriousness of the offence. In relation to the seriousness of an offence, s 6(2) distinguishes between 'the circumstances of the commission of the offence, including the vulnerability of any victim of the offence' (s 6(2)(b)) and 'any aggravating factors' (s 6(2)(c)). An 'aggravating factor' is defined in s 7(1) as a factor that increases the culpability of the offender. The jury was not satisfied that the appellant did not hold an honest and reasonable belief that the complainant was 16 years or older. It must follow that the culpability of the appellant is not aggravated by the fact that the complainant was 14 years of age. Nonetheless, her age was an objective fact constituting a circumstance of the commission of the offence relevant to the vulnerability of the victim.
This is a fine distinction and a sentencing judge confronted with a situation of this type needs to take great care to ensure that the factor concerned is not inadvertently characterised as something it is not. It is important that the reasoning process is clearly disclosed so that those observing the proceedings can be confident that the factor was given no greater weight than it could legitimately bear in accordance with its proper characterisation.

In the circumstances of this case and quite apart from the effect of s 7(3), it would in my view have been inappropriate for the sentencing judge to have regard to the complainant's age as an aggravating factor increasing the culpability of the offender. But he was entitled to take it into account in relation to her vulnerability and the effect of the crime on her and therefore to the seriousness of the offence. I think that is the proper way to read the references in the sentencing remarks to the complainant's age. It follows that the sentencing judge did not err in this respect and ground 1 has not been made out.
The second matter I wish to mention relates to grounds 2, 3 and 4 and to the proposition that the sentencing judge erred by taking into account whether the guilty plea actually facilitated the administration of justice rather than that it signified the appellant's willingness to assist in that way. It seems to me that the appellant's submissions seek to elevate the concept of facilitating the administration of justice into an end in itself rather than as a means to an end. In my view the relevant 'end' in this aspect of the sentencing process is the proper treatment of the plea of guilty. The question whether the appellant facilitated (or indicated a willingness to facilitate) the administration of justice is one of the factors to be taken into account in determining whether proper regard was paid to the plea of guilty.
The sentencing judge was aware of the guilty plea. He mentioned it on four separate occasions during his sentencing remarks, twice in passing and twice in more detail. The first time was when he was dealing with the way in which the trial came to be focussed on the circumstances of aggravation. He went on to say:
Now, in terms of looking at mitigating factors. The pleas of guilty to the substantive offence are to your credit, but that did not mean that the complainant did not have to give evidence. Ultimately, she did as if everything was in issue. … Although you get a credit for the plea, that didn't really facilitate the administration of justice because we had to go through the evidence as if everything was in issue, but I accept you did plead guilty.
A little later he again mentioned the guilty plea in the context of a discussion whether a term of imprisonment could be suspended. Finally, he said this:
Now, I'm mindful of the late plea of guilty on the first day of the trial to the substantive offences and you get some credit for that. Nonetheless, your victim was still required to give evidence so that balances that to a certain degree.
The sentencing judge also had before him a pre-sentence report and a psychiatric report in both of which the authors expressed the view that the appellant showed a complete lack of remorse and (despite the guilty plea) a denial of the offences. His Honour noted, however, the defence submission that the appellant was sorry for the victim and was concerned as to what she had gone through, although the appellant lacked insight into his offending behaviour. In my view, and notwithstanding the defence submission, this was material on which the sentencing judge was entitled to form a view that the appellant had demonstrated minimal remorse and had not adequately accepted responsibility for his offending behaviour.
A plea of guilty will always decrease the culpability of the offender or decrease the extent to which the offender should be punished but this does not automatically translate into a reduction in sentence. One of the reasons why a plea of guilty has this effect is that it is usually indicative of remorse and an acceptance of responsibility. But quite apart from these considerations the law recognises what has come to be termed the 'utilitarian' value of a plea of guilty. Willingness to facilitate the administration of justice falls into that category. And it can call for a discount even where evidence of remorse and acceptance of responsibility is minimal. See generally Moody v French [2008] WASCA 67; (2008) 36 WAR 393 [29] ‑ [38].
It seems to me that the concept of the 'administration of justice' is not confined to the length of trials or to the number of witnesses that have to be called. In recent decades there has emerged a more enhanced appreciation of the adverse impact that the justice system can have on complainants in sexual offences trials and on victims of crime generally. I need only mention, by way of examples, s 36A to s 36BD of the Evidence Act 1906 (WA) and the Victims of Crime Act1994 (WA). The impact of the plea of guilty in obviating (or minimising) the extent to which a complainant has to participate in the trial process and to relive the trauma of the incidents leading to the laying of charges will often indicate remorse and acceptance of responsibility. But it is also a material aspect of the administration of justice as that concept is used in these circumstances. In assessing an accused person's willingness to facilitate the administration of justice she or he must be taken to have been aware of the likely effect of the plea on the role the complainant would have to play in the trial process.
In any event it seems to me that the real question does not lie in a fine distinction between the actual effect of the plea in relation to facilitating the administration of justice and its capacity to indicate a willingness on the part of the appellant. What is material is whether the sentencing judge properly took into account the guilty plea in arriving at the sentence he imposed. It is not the law that a sentencing judge must exercise a discretion to provide a given reduction in sentence for a plea of guilty. If a reduction is properly available, the sentencing judge may provide for it. As I have already said, although it is not mandatory to reduce a sentence on account of a plea of guilty, it is well established that, in all but the most exceptional of cases, a plea of guilty will have that result.
Against that background, it seems to me that the following points can be made.
1.The sentencing judge did take into account the fact that the appellant had pleaded guilty. He said so on four occasions.
2.It was a late plea, although it did reduce the number of witnesses the prosecution had to call.

3.The plea did not spare the complainant from the trauma of having to relive and recount in a public forum the circumstances of the offences perpetrated against her.
4.The appellant must be taken to have been aware that the complainant would still have to give evidence and his willingness to facilitate the administration of justice has to be seen in that light.
5.The sentencing judge was entitled to proceed on the basis that the appellant had demonstrated minimal remorse or acceptance of responsibility notwithstanding the defence submission that he was concerned about what the complainant had been through.
6.The sentencing judge balanced the relevant factors. Although he did not mention a percentage discount (and he was not bound to do so) he made it clear that the appellant would get 'some credit' for the plea. There is no reason to doubt that his Honour gave a credit as he said he would.
7.This is not a case where the head sentence imposed itself demonstrates that, while the sentencing judge mentioned the plea, he must have overlooked it or given it such little weight that the sentencing discretion materially miscarried.

For these reasons, grounds 2, 3 and 4 have not been made out and the appeal must be dismissed.
PULLIN JA: This is an appeal against a sentence imposed after a trial before a judge and jury in the District Court.
The appeal was lodged about a week out of time. Extension of time is sought. The respondent does not oppose the order extending time. Such an order should be made.
The appellant was charged with two offences pursuant to s 326 of the Criminal Code (WA). The counts in the indictment read:
1)On 1 January 2008 at Gosnells, Robert Charles Zimmerman sexually penetrated [the victim] without her consent, by inserting his finger into her vagina.
And that Robert Charles Zimmerman did bodily harm to [the victim].

And that [the victim] was over the age of 13 years and under the age of 16 years.
2)On the same date and at the same place Robert Charles Zimmerman sexually penetrated [the victim] without her consent by inserting his penis in her vagina.
And that Robert Charles Zimmerman did bodily harm to [the victim].
And that [the victim] was over the age of 13 years and under the age of 16 years.

In relation to count 1 the appellant was found not guilty, but was convicted of an alternative offence under s 325 which was that the appellant sexually penetrated the victim without her consent by inserting his finger into her vagina. In other words, the allegation of bodily harm and the allegation that the victim was under 16 years of age were not proven. In relation to count 2, he was found guilty but only the first circumstance of aggravation was proven. He was sentenced to 3 years' imprisonment on the alternative to count 1 and 5 years on count 2, both sentences to be served concurrently. He was made eligible for parole.

Circumstances of the offence

The offences were committed in the following circumstances. The victim went to the appellant's 19th birthday party which was held at the appellant's mother's house on New Year's Eve 2007. At the time the victim was 14 years of age. The victim drank a bottle of spirits which she had taken to party and she became intoxicated. The victim left the party and walked across the road to a park opposite the appellant's mother's house. The appellant approached the victim and they began kissing consensually. However, the victim later said to the appellant 'No, I don't want to do this'.
The appellant then penetrated the victim's vagina with his finger without her consent. He then placed some cloth material in or over the victim's mouth so that she could not breath or talk and hit her about the head several times causing injuries to her face. She feigned unconsciousness but then actually became unconscious. The second count, penile penetration of the vagina, then occurred. Some of the other people from the party approached or arrived in the park and the appellant got up and left. The victim ran off naked from the waist down looking for help. A passerby assisted her and took her home. The police were called and she was taken to the Child Protection Unit of Princess Margaret Hospital.
At the hospital a doctor examined the victim. He found swelling around the victim's jaw on both sides and on the side of her head around the ear. She had a wound to the front of her face. She also had reddened areas around the inner aspect of her thighs. The doctor was of the opinion that the injuries were consistent with blunt trauma such as a punch or a knock.

Events at trial

As can be seen from the indictment, each count alleged two circumstances of aggravation. On the morning of the first day of the trial, and in the absence of the jury, the appellant indicated through counsel that he intended pleading guilty to the 'charge [sic] but without the circumstances of aggravation which are in issue'. The appellant was then permitted to enter pleas of guilty to two counts of having sexually penetrated the victim without her consent. He was also permitted to enter pleas of not guilty to each of the circumstances of aggravation alleged in the two counts.
After the appellant's pleas were entered, submissions were made in the absence of the jury about the appropriateness of the procedure that had been adopted. It was eventually agreed that the issue of whether the appellant was 'guilty' of the circumstances of aggravation should be determined by a jury. A trial was then conducted before a jury limited to the issue of whether the prosecution had established the circumstances of aggravation that were pleaded in the indictment. At the conclusion of the trial the jury returned verdicts that neither of the circumstances of aggravation pleaded in count 1 had been proven beyond reasonable doubt. In relation to count 2, the jury concluded that one circumstance of aggravation had been proven beyond reasonable doubt, namely that at or immediately after the commission of the offence, the appellant did bodily harm to the victim.
The appellant contends, and the respondent agrees, that the procedure adopted was irregular. The appellant's contention was that the only pleas that were available to the appellant were those set out in s 126(1) of the Criminal Procedure Act 2004 (WA). Further, s 126(4) of the Act does not allow two or more pleas to be entered in circumstances in which one of the pleas entered is a plea of guilty. The course which should have been followed is that pleas of not guilty to the charges should have been entered pursuant to s 126(1)(e) of the Act. It would then have been open to the appellant to make a formal admission pursuant to s 32 of the Evidence Act 1906 (WA) that he did not dispute that he had sexually penetrated the victim without her consent as alleged in each count in the indictment. At the conclusion of the trial, the jury should then have been directed about the availability of the statutorily alternative offence of sexual penetration without consent contrary to s 325 of the Criminal Code (WA) if they were not satisfied beyond reasonable doubt that the prosecution had proven each of the circumstances of aggravation beyond reasonable doubt.
Although the procedure was said by the parties to be irregular, no claim is made that the procedural irregularity warrants interference with the appellant's sentence. As a result, it is not necessary for this court to express an opinion about the parties' view regarding the correctness of the procedure followed.

Grounds of appeal

The grounds of appeal read:
1.The learned trial Judge erred by taking into account the fact that the complainant was 14 years of age at the time of the commission of the offences when assessing the seriousness of the offences as required by section 6 of the Sentencing Act 1995.
2.The learned trial Judge erred, when assessing the mitigatory effect of the Appellant's pleas of guilty, by taking into account the extent to which such pleas actually facilitated the administration of justice.
3.The learned trial Judge erred, when assessing the mitigatory effect of the Appellant's pleas of guilty, by failing to take into account the extent to which the pleas of guilty indicated that the Appellant was willing to facilitate the administration of justice.
4.The learned trial Judge erred in concluding that the Appellant's pleas of guilty 'didn't really facilitate the administration of justice because we had to go through the evidence as if everything was in issue'.

Ground 1

Although the victim was 14 years of age at the time of the offences, the jury found the appellant not guilty of the aggravating circumstance that the victim was of or over the age of 13 years and under the age of 16 years. The verdict is consistent only with the jury not being satisfied beyond reasonable doubt that the prosecution had not proved that the appellant was not honestly and reasonably mistaken about the victim's age. The appellant had testified that he thought the victim was 'about 17; 16 maybe' (ts 125). Expressed in other words, the evidence raised the 'defence' under s 24 of the Criminal Code which meant that the prosecution had the onus of proving that the appellant was not acting under an honest and reasonable but mistaken belief that the victim was over the age of 16.
The sentencing judge made a number of references to the fact that the victim was 14 years of age at the time of the commission of the offences. In particular when considering s 6(2) of the Sentencing Act, the sentencing judge expressly took into account the fact that the victim was 'a vulnerable 14‑year‑old girl who was drunk at your party'.
The appellant submits that this was an error on the part of the sentencing judge. The appellant submits that the sentencing judge should have sentenced the appellant as if the 'real state of things had been such as he [the appellant] believed to exist'. See Criminal Code s 24. In other words, the appellant should have been sentenced as if the victim was 16 or 17 years old and that no account should have been taken of the fact that the victim was 14 years old. During the hearing of the appeal, a question was raised about the relevance of s 7 of the Sentencing Act 1995 and particularly s 7(3). Neither counsel was ready to make submissions about the section and so the parties were given the opportunity to make written submissions which have been received. Section 7 reads:
Aggravating factors
(1)Aggravating factors are factors which, in the court’s opinion, increase the culpability of the offender.
(2)An offence is not aggravated by the fact that -
(a)the offender pleaded not guilty to it;
(b)the offender has a criminal record; or
(c)a previous sentence has not achieved the purpose for which it was imposed.
(3)If the statutory penalty for an offence is greater if the offence is committed in certain circumstances than if it is committed without the existence of those circumstances, then -
(a)an offender is not liable to the greater statutory penalty unless he or she has been charged and convicted of committing the offence in those circumstances; and
(b)whether or not the offender was so charged, the existence of those circumstances may be taken into account as aggravating factors.
It is necessary when considering s 7, to take into account two definitions in the Criminal Code and to bear in mind the existence of two different relevant categories of offences created in the Criminal Code. Section 1(1) of the Criminal Code reads:
In this Code, unless the context otherwise indicates -
…
The term 'circumstance of aggravation' means and includes any circumstance by reason whereof an offender is liable to a greater punishment than that to which he would be liable if the offence were committed without the existence of that circumstance.
It is clear that there is a distinction between a 'circumstance of aggravation' and 'aggravating factors'. In Wade v The Queen [2001] WASCA 252, McKechnie J (Malcolm CJ and Anderson J agreeing) explained that a circumstance of aggravation is always an aggravating factor, but an aggravating factor is not always a circumstance of aggravation. It is the jury who must find whether or not a circumstance of aggravation exists, whereas it is for the sentencing judge to form an opinion about whether there are aggravating factors which increase the culpability of the offender.
The other definition to which reference must be made is s 2 of the Criminal Code which reads:
An act or omission which renders the person doing the act or making the omission liable to punishment is called an offence.
The two relevant categories of offences are:
(a)offences defined by reference to certain acts or omissions with an accompanying provision (which may appear in the section creating the offence, or in another section) stating that if the 'offence' is committed in certain 'circumstances of aggravation', then the penalty is greater. For example, s 401(1) creates the offence of burglary and provides a penalty of 14 years' imprisonment. The section also provides that if the offence is committed in certain specified 'circumstances of aggravation' as defined in s 400(1), the penalty increases. The same pattern is found in s 392 (the offence of robbery). In s 371A, the offence of unlawful use of a motor vehicle is created and the penalty is found in s 378. Section 378(2) then specifies the circumstances in which the penalty may be higher. Each of these circumstances or 'circumstances of aggravation' is, by definition, 'a circumstance of aggravation' as defined in s 1(1); and
(b)offences in which circumstances of aggravation form an element of the offence. Section 326 is an example. That section reads:
A person who sexually penetrates another person without the consent of that person in circumstances of aggravation is guilty of a crime and liable to imprisonment for 20 years.
Alternative offence: s 321(2) or (4), 322(2) or (4), 323, 324 or 325.

The phrase 'circumstances of aggravation' in ch XXXI of the Criminal Code, and therefore, in this section is defined in s 319(1). In this category of offence and therefore in s 326, the context indicates that the definition of the term 'circumstance of aggravation' appearing in s 1(1) of the Criminal Code is not to apply because any 'circumstances of aggravation' form an element of the offence. They do not render an offender liable to a punishment for the offence greater than that specified in s 326. Under that section, if the jury finds that sexual penetration occurred without consent, but not in any of the circumstances of aggravation relied on, then the accused will be not guilty of the 'offence' charged, although he may be convicted of an 'alternative offence'. That is what happened in this case. The appellant was convicted on count 1 not of an offence under s 326 but of an offence under s 325 (sexual penetration without consent).
In Caporn v The State of Western Australia (No 2) [2008] WASCA 26 the court considered offences falling within the first category (s 392 and s 371A). As a result, the context does not indicate that the definition of 'circumstance of aggravation' in s 1(1) of the Criminal Code should not apply and at [117] Beech J (Pullin JA agreeing) said:
A circumstance of aggravation is, by definition, not an element of the offence. It is a circumstance by reason of which the offender is liable to a greater punishment than that to which he would be liable if the offence were committed without the existence of that circumstance: Criminal Code (WA) s 1. In other words, it alters the available maximum penalty. A circumstance of aggravation is to be distinguished from facts or circumstances relevant to the sentencing discretion as increasing the culpability of the offender or, as they are termed in the Sentencing Act 1995 (WA), 'aggravating factors'; Kingswell v The Queen (1985) 159 CLR 264, 280; Wade v The Queen [2001] WASCA 252 [37] - [40]; Lee v The Queen (1994) 76 A Crim R 271, 285 - 286.
The result of the foregoing discussion is that s 7(3) of the Sentencing Act has no application in this case and both parties agree with that conclusion. However, s 6(2) of the Sentencing Act 1985 requires a sentencing court to determine the seriousness of an offence by taking into account the circumstances of the commission of the offence, including the vulnerability of any victim of the offence. The age of the victim is a circumstance of the commission of the offence which also bears upon the vulnerability of the victim.
In this case the offender was convicted on count 1 of an offence under s 325, which was an alternative offence, and convicted on count 2 under s 326, with only one of the two circumstances of aggravation being established.
When it came to sentencing, in relation to both offences, it was a relevant circumstance of the commission of the crime, that the victim was a 14‑year‑old girl and that her age made her more vulnerable. As a result, the sentencing judge did not err by referring to the age of the victim. Ground 1 must therefore be dismissed.

Grounds 2, 3 and 4

These grounds allege that the sentencing judge erred in concluding that the pleas of guilty did not 'really facilitate' the administration of justice. The grounds contend that the trial judge failed to take into account the extent to which the pleas of guilty indicated the appellant was willing to facilitate the administration of justice, and that the pleas of guilty did actually facilitate the administration of justice. The only relevant facts I need refer to, in relation to the plea of guilty, was the sentencing judge's findings that the appellant had a tendency to minimise his responsibility for the offending behaviour and that he continued to deny the offences despite his pleas of guilty. These aspects indicated a lack of remorse.
The appellant did plead guilty to the offence on the first count, and convicted, and credit had to be given for that plea. The appellant submits that although ultimately convicted of the offence on count 2, of aggravated sexual penetration without consent contrary to s 326 of the Criminal Code, the irregular plea of guilty that was entered was a mitigatory factor. The appellant submits that 'the plea' at least constituted an admission of two significant elements of the offence charged. The appellant submits that the error occurred when the sentencing judge said (ts 17):
The pleas of guilty to the substantive offence are to your credit, but that did not mean that the complainant did not have to give evidence. Ultimately, she did as if everything was in issue. Although you get a credit for the plea, that didn't really facilitate the administration of justice because we had to go through the evidence as if everything was in issue, but I accept that you did plead guilty (emphasis added).
and (ts 19):
I'm mindful of the late plea of guilty on the first day of the trial to the substantive offences and you get some credit for that. Nonetheless, your victim was still required to give evidence so that balances that to a certain degree. (Emphasis added)
The appellant points out that the issues were reduced so that all that the jury had to consider was whether the prosecution had proven the circumstances of aggravation. The appellant also points out that the trial was not conducted by the defence as if everything was in issue. The appellant points to the fact that the prosecution named 24 witnesses on the back of the indictment, but only seven gave evidence and two were not subjected to any cross‑examination. The victim's allegations of sexual penetration without consent were admitted by the appellant and were not challenged in cross‑examination.
In Moody v French [2008] WASCA 67; (2008) 36 WAR 393 [38] this court stated that save in exceptional cases, the mere utilitarian value of a plea of guilty may warrant a discount in sentence. However, the rule that a plea of guilty may be taken into account in mitigation usually requires that the rule be understood in terms of a willingness to facilitate the course of justice and an indication of remorse and not on the basis that the plea has saved the community the expense of a contested hearing: Cameron v The Queen [2002] HCA 6; (2002) 209 CLR 339, [14] (Gleeson CJ, Gummow and Callinan JJ); H v The State of Western Australia [2006] WASCA 53; (2006) 163 A Crim R 151 [12], [30] and [73]. The degree of discount afforded by a plea of guilty is still dependent on other factors including evidence about whether there is actual remorse and acceptance of responsibility. The saving of the need for a trial and similar 'objective benefits' are relevant to whether an inference can be drawn that an offender is remorseful and willing to facilitate the course of justice. Where there is other positive evidence of lack of remorse, the inference is less likely to be drawn and a lesser reduction for the plea is appropriate (H v The State of Western Australia [73] (McLure JA)). When a plea comes very late and is not indicative of genuine remorse, the discount for it should generally be greatly reduced (H v The State of Western Australia [12] (Steytler P)).
In this case the appellant denied his offending behaviour to a psychiatrist and the author of the pre‑sentence report. Both the psychiatrist and the author of the pre‑sentence report were of the opinion that the appellant demonstrated a lack of remorse. Counsel for the appellant at the sentencing hearing said that the appellant was 'sorry' for the victim but counsel acknowledged that the appellant lacked insight into his offending behaviour. The result was that while the pleas of guilty were factors to be taken into account, they justified a discount much lower than a plea of guilty indicative of unqualified remorse.
When the sentencing judge commented that the plea of guilty did not 'really facilitate the administration of justice because we had to go through the evidence as if everything was in issue', he added 'but I accept that you did plead guilty' (ts 17). The sentencing judge, on two other occasions, referred to the fact that he was giving the appellant credit for his plea. He said that the 'late plea of guilty on the first day of the trial to the substantive offences' meant that 'you get some credit for that'; but added that 'nonetheless, your victim was still required to give evidence so that balances that to a certain degree'. These comments show that his Honour was giving the appellant credit for his pleas but that credit would not be as great as in circumstances where there was clear and unambiguous evidence of remorse.
In my view, the sentencing judge made no error.
Grounds 2, 3 and 4 should be dismissed.
In any event, even if some of the grounds had been upheld the appeal should be dismissed because no different sentence would have been imposed. See s 31(4)(a) Criminal Appeals Act 2004. These offences were committed against a vulnerable teenage girl late at night in a park while no‑one else was around. The appellant knew that the victim was intoxicated and the appellant assaulted the victim, beating her around the head until she fell unconscious. It appears that the appellant continued sexually penetrating the victim while she was unconscious. The victim was left hysterical and she ran across the park, naked from the waist down. According to the person who assisted her, she was extremely distressed and visibly shaken. As a result of the beating, the victim received injuries amounting to bodily harm. It is also relevant that the appellant had only just completed a 9 month community‑based order and was on bail. The victim's victim impact statement also has to be taken into account. It highlights how she was struggling to cope with the effects of the offending. Apart from the pleas of guilty the only other mitigating factor and the only significant factor, was that the appellant was, and is, still young. He was 19 years of age at the time of the offence. Having regard to all of the factors referred to above, the sentences of 3 years for count 1 and 5 years concurrent on count 2 were appropriate sentences. The appeal should be dismissed.