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Criminal Law (W.A.)
COURT
High Court of Australia
Mason C.J.(1), Wilson(1), Brennan(1), Toohey(1) and Gaudron(1) JJ.
HRNG
1987, Perth, September 18;
1987, Canberra, October 6. #DATE 6:10:1987
JUDGE1
MASON C.J., WILSON, BRENNAN, TOOHEY AND GAUDRON JJ. After a trial in the
Supreme Court of Western Australia before Kennedy
J. and a jury, the applicant
was convicted of the offence of sexual penetration without consent. That
offence is created by s.324D
of the Criminal Code of Western Australia, one of
the provisions of Ch.XXX1A of the Criminal Code which was inserted by the Acts
Amendment (Sexual Assaults) Act 1985 (W.A.). Chapter XXXIA is headed "Sexual
Assaults". The Act substantially altered the previous
Code provisions
relating to sexual offences. The offence of rape has been deleted from the
Code, but the conduct which would have
constituted rape is now proscribed by
s.324D which reads:
" Any person who sexually penetrates another
person without
the consent of that person is
guilty of a crime and is liable to imprisonment
for 14 years."
The conduct proscribed
by s.324D includes certain conduct which would not have
constituted rape. Section 324F gives an extended meaning to the phrase "to
sexually penetrate". It is defined to mean -
" (a) to penetrate the vagina of any person or the
anus of any person
with -
(i) any part of the body of another
person; or
(ii) an object manipulated by
another person,
except where the penetration is carried out
for proper medical purposes;
(b) to manipulate any part of
the body of another
person so as to cause penetration of the
vagina or anus of the offender by part of the
other person's body;
(c) to introduce any part of the penis of a
person into the mouth of another person;
(d) to engage in cunnilingus; or
(e) to continue sexual penetration as defined in
paragraph (a), (b), (c)
or (d)."
Section 324G defines "consent" to mean "a consent freely and voluntarily
given". It is unnecessary now to consider the
construction of that section. A
maximum penalty of 14 years imprisonment is prescribed for the offence of
sexual penetration without
consent (described by the sidenote to s.324D as
"Sexual assault"). Section 324E creates an offence of sexual penetration
without
consent in circumstances of aggravation (described by the sidenote to
s.324E as "Aggravated sexual assault") for which a maximum
penalty of 20 years
imprisonment is prescribed.
2. The circumstances out of which the charge against the applicant arose were
unusual.
The complainant, a mother of four children, had been living with a
man near the house occupied by the applicant and his wife, Katrina.
Two of
her children, both young, lived with her. The complainant was befriended by
the wife and, when the man with whom the complainant
had been living required
her to leave their house, she and the two children went to live in Ibbs'
house. The applicant was attracted
to the complainant and Mrs Ibbs, at the
applicant's request, asked her to have sexual intercourse with him. Prior to
the night of
29 November 1986, the complainant twice had sexual intercourse
with the applicant. On that night, the applicant again approached
the
complainant to have sexual intercourse. In evidence the complainant and the
applicant agreed on the sequence of events that
evening, though their evidence
differed in some respects. After the applicant first effected penetration,
the complainant objected
that it was not right and that Katrina was her best
friend. The applicant then withdrew and asked Mrs Ibbs to speak to the
complainant,
which she did. These events may have been repeated. Finally,
after speaking with Mrs Ibbs, the complainant said: "Well, let's get
it over
with". The applicant again effected penetration. The complainant became upset
during intercourse, saying "it's not right".
Nevertheless, the applicant
continued to ejaculation. The complainant tried to push him away, but the
applicant said that that
occurred "right at the last minute". The learned
trial judge gave the jury directions which were appropriate to their
consideration
of guilt either by reason of the final act of actual penetration
or by reason of the continuing of the intercourse. The jury retired
for
nearly five hours before seeking a redirection on two questions:
"1. If consent was given or assumed and the act
began, then consent was withdrawn, at what
point can consent be withdrawn? When is the
act of intercourse terminated?
2. We wish to hear the transcript of both parties
relevant to the last act of intercourse and
particularly
the reference to pushing on the
chest. This includes questions to both
parties by both the defence counsel and
prosecution."
The jury ultimately returned a verdict of guilty.
3. In sentencing the applicant, Kennedy J. said:
" From the questions asked by the jury I proceed
upon the basis that you are not criminally liable
for the last act
of initial penetration ... Your
criminal responsibility results from the
continuation of penetration either after she
had
withdrawn her consent or after any mistake on
your part had ceased to be honest and reasonable.
On the evidence
I find it difficult to identify
the period of the continuation after the critical
moment. It is however enough to say
that it was
an appreciable time, perhaps up to 30 seconds,
after she commenced to try to push you away from
her.
There can be no doubt whatever as to the
genuineness of the complainant's distress after
the event although
I equally have no doubt that
her distress resulted from a combination of
factors, your conduct being the culmination
of
those factors. It really was an indication of
her general despair at that time. She found
herself in a situation
where she had nowhere
apparently to turn for help - certainly not to
your wife whom she had regarded as a close
friend. She had no other living accommodation
available to her. She had a young daughter to
care for having been thrown
out of her previous
home. She now found you taking every possible
advantage of her weakened position for your own
totally reprehensible self-gratification.
You continue to have the belief that by your
standards you have done
nothing wrong because
there was no threat or act of violence on your
part, but that is misconceived. The new sexual
assault legislation has brought about a very
profound change in the law. It has adopted what
seems to be a different
test of consent. The
other party's consent must be free and voluntary
and it is now made quite clear that the
continuation of penetration itself can constitute
the major offence.
... I do not regard there having been present
here any violence or threats of violence on your
part. You sought to attain your ends by another
process."
And
his Honour imposed the following sentence:
" Having regard to all the matters placed before
me, and not having overlooked
the period which
you have spent in custody already, I have
determined that you will be sentenced to a term
of four
years' imprisonment. You will serve a
period of 18 months before becoming eligible for
parole."
The sentence commenced
to run on the date of its imposition, 22 April 1987.
4. An application to the Court of Criminal Appeal for leave to appeal against
sentence was, by majority, dismissed (Burt C.J. and Smith J., Brinsden J.
dissenting). In the course of his judgment Burt C.J. said:
" For the purposes of the offence now called
'sexual penetration without consent' the
penetration can be achieved
in a number of ways
and however achieved 'to continue the sexual
penetration' is in itself to 'sexually
penetrate'.
The offence carries a maximum
sentence of 14 years imprisonment and as I
observed in The Queen v. Ginder, 'it is apparent
that the (Code as amended) ... creates one
offence which embraces without distinction inter
se all the identified
kinds of penetration by one
of another if achieved without consent' and that
it should not be supposed that for the purposes
of punishment 'one means of penetration is more
heinous than another'. Specifically, to sentence
upon the basis
that under the law before the Code
was amended the offence committed by the
applicant was an indecent assault is simply
to
ignore the law as it now is."
In his judgment in Reg. v. Ginder (1987) 23 ACrimR 1, his Honour had said (at
p 4) that in
fixing the sentence in a particular case -
" ... it should not be supposed that one means of
sexual penetration, divorced
from the
circumstances, is more heinous than another. To
make that distinction would, I think, be to hark
back
to notions which have, by the reforming Act,
been abandoned."
Smith J. cited this passage from Ginder in stating his reasons
for refusing
leave to appeal against sentence in the present case. It appears that the
majority regarded the Chief Justice's judgment
in Ginder as stating a
principle which should govern the fixing of sentences for offences of sexual
assault. Although neither that
judgment nor the judgments in this case suggest
that the particular facts of each case are to be disregarded, the judgments
appear
to adopt as a sentencing principle the proposition that, "divorced from
the circumstances", each kind of sexual penetration as defined
in s.324F is
neither more nor less heinous than another. That proposition cannot be
accepted. The maximum penalty prescribed for
the offence of sexual assault is
reserved for the worst type of case falling within s.324D: Reg. v. Tait and
Bartley (1979) 46 FLR
386, at p 398; 24 ALR 473, at p 484; Bensegger v. The
Queen (1979) WAR 65, at p 68. The maximum penalty is not prescribed as an
appropriate penalty for the worst type of case falling within each of the
respective categories of sexual penetration described in
s.324F. The
inclusion of several categories of sexual penetration within the offence
described as sexual assault carries no implication
that each category of
sexual penetration is as heinous as another if done without consent. When an
offence is defined to include
any of several categories of conduct, the
heinousness of the conduct in a particular case depends not on the statute
defining the
offence but on the facts of the case. In a case of sexual
assault, a sentencing judge has to consider where the facts of the particular
case lie in a spectrum at one end of which lies the worst type of sexual
assault perpetrated by any act which constitutes sexual
penetration as
defined. As Dwyer C.J. said in Reynolds v. Wilkinson (1948) 51 WALR 17, at p
18:
" Crimes bearing the same general
description have
not equally evil content or characteristics, and
offenders also differ in themselves."
5. The view
which was expressed in the passage cited from Ginder and which
was adopted by the majority of the Court of Criminal Appeal in this
case
attributes a different operation to ss.324D and 324F. Although this Court
does not ordinarily grant special leave to appeal
against a sentence merely
because the sentence is said to be inadequate or excessive, this case comes
within the exception stated
in White v. The Queen (1962) 107 CLR 174, at p 176
- "a gross violation of the principles which ought to guide discretion in
imposing sentences". Special leave to appeal
should therefore be granted.
6. The sentence in the present case may have been appropriate if the
applicant had been sentenced
for an offence consisting in the initial
penetration without consent, but it appears manifestly excessive when the
applicant was
sentenced on the footing that the complainant had consented or
was honestly and reasonably believed by the applicant to have consented
to the
act of penetration by which intercourse was commenced. An appropriate
sentence was thought by Brinsden J. to be six months
imprisonment. Rather than
remitting the matter to the Court of Criminal Appeal for reconsideration,
adoption of the sentence proposed
by Brinsden J. would seem to be, in all the
circumstances of the case, a preferable means of disposing of the matter.
7. Special
leave to appeal is granted, the appeal allowed, the judgment of
the Court of Criminal Appeal is set aside, the sentence imposed by
Kennedy J.
is quashed and in lieu thereof a sentence of six months imprisonment is
imposed, commencing on 22 April 1987.
ORDER
Applicant for special leave to appeal granted.
Appeal allowed. Order that the order of the Court of Criminal Appeal of
Western Australia dated 16 July 1987 be set aside in so far as it refused
leave to appeal against sentence and in lieu thereof order
that leave to
appeal against sentence be granted, the appeal to that Court be allowed, the
sentence imposed by Kennedy J. on 22 April
1987 be quashed and in lieu thereof
impose a sentence of six months imprisonment commencing 22 April 1987.
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