The Seriousness of the Offence: Proportionality in Sentencing Sexual Offenders in Western Australia
| Author: | Karen Whitney BA, JD, LLM School of Law, Murdoch University |
| Subjects: | Sentences - criminal procedure Western Australia Sex crimes Western Australia |
| Issue: | Volume 3, Number 1 (May 1996) |
| Category: | Refereed Articles |
1. In the three week period between 24 February and 17 March 1996, 10 women in the greater Perth area were sexually assaulted, and 6 others threatened, abducted, or bashed.[1] These incidents caused a flurry of public attention to the issue of violence against women, and resulted in claims of a "sex crime wave".[2] Police Minister Bob Wiese blamed the judiciary for the problem, in failing to sentence sexual assault offenders closer to the statutory maximums for such crimes.[3] The opposition police spoke sperson Nick Catania responded with an attack on the government's plan to amend the Criminal Code to allow "minor" sexual offences to be dealt with by the Court of Petty Sessions.[4]
2. This perception that some offences are more serious than others is nothing new. Observations about sentencing are often based on the assumption that there is a "rough scale" of relative gravity of criminal offences.[5] In almost any social situation where punishment is imposed, a moral distinction is made between more and less serious transgressions.[6] A basic principle of sentencing is that the sentence imposed by the court should never exceed that which is appropriate or proportionate to the gravity of the crime.[7] This notion is referred to as "proportionality", and is firmly established in Australia.[8]
3. In Western Australia, the Court of Criminal Appeals ["CCA"] has adopted this principle, but often describes its application of the principle in varying terms. As described in Steels by Murray J:
"...the basic sentencing task confronting the learned sentencing Judge was to arrive at a sentence which was proportionate to the gravity of the offence, having regard to all the circumstances of the case, including a consideration of the nature of the offence and the circumstances of its commission, as well as having regard to the circumstances particularly personal to the offender and the victim."[9]
4. In Azaddin, Nicholson J noted that the "critical factor" in imposing a penalty for an offence was "the degree of criminality involved, having regard to the maximum sentence laid down by the legislature".[10]
5. The proportionality principle was recently codified in Western Australia to provide that the sentence imposed on an offender must be commensurate with the "seriousness of the offence".[11] The seriousness of the offence is determined in relation to the following factors: the statutory penalty, the circumstances of the commission of the offence, aggravating factors and mitigating factors.[12]
6. Legal scholars such as Andrew von Hirsch have posited that proportionality is achieved where "the seriousness of the offence" is defined in relation to the harm done (or risked) by the offence, and the degree of the offender's culpability.[13] In this article I consider whether the sentencing policy currently in place in Western Australia achieves the "von Hirsch standard" of proportionality.[14]
7. In parts II and III of this article I consider the harm resulting from sexual offences, and the culpability of sexual offenders. I review the psychological literature on these issues in an effort to better understand the nature of sexual offences and the reasons they are perpetrated.
8. In part IV, I identify the present standard for proportionality in Western Australia: section 17A of the Criminal Code. I consider each of the factors which section 17A describes as determinants of the seriousness of the offence: I review each of the statutory penalties for sexual offences in the Criminal Code; I look to what circumstances of the commission of the offence the sentencing courts have considered relevant to determining the seriousness of the offence; and I consider which aggravating and mitigating factors have been important to the courts in assessing offence seriousness.
9. In part V, I consider these factors identified in part IV. In relation to the maximum penalties identified, I consider whether these penalties reflect the von Hirsch standard of proportionality. I look to whether the factors which make an offence more serious in the eyes of Parliament reflect an understanding of the harm resulting from sexual offences, and the culpability of the offender. In relation to the circumstances of the offence, aggravating factors and mitigating factors used by the courts to place an offence within the range created by the maximum penalty, I consider whether these factors reflect an understanding of the harm resulting from sexual offences, and the culpability of the offender.
10. Finally, in part VI, I conclude that for sentencing policy in Western Australia to achieve true proportionality, indicators of offence seriousness must reflect an assessment of the actual harm to the victim and society (particularly in relation to violation of the victim's trust, notions of security and safety, and physical integrity) and an assessment of the culpability of the offender (recognising in particular the likelihood that the assault occurred as a result of anger, power, violence and a desire to overpower, hurt, and humiliate women, rather than as a result of a lack of sexual self-restraint).
11. In a 1973 article, Camille Le Grand argued that rape laws largely reflect traditional attitudes about social roles and sexual mores.[15] She argued that the form and content of the laws, including laws relating to enforcement and prosecution, were based on untested assumptions of the incidence of the crime, the motivations of the offender, and of the psychology of the victim.[16] Further she argued that rape laws were not designed to protect a woman's interest in physical integrity, but rather to reinforce traditional attitudes about social and sexual roles.[17] In her view, rape laws protected male interests in that they bolstered masculine pride in the exclusive possession of a sexual object.[18] Rape laws protected the male from any decrease in the value of his sexual possession which would result from forcible violation. I characterise this view as the "property crime" view of sexual assault.
12. Since Le Grand's article, most jurisdictions in the United States and Australia have amended their sexual assault legislation to overtly reject this "property crime" view of sexual assault. Most jurisdictions now officially recognise intra-marital sexual assault, and most at least claim to reject notions of blaming the victim of sexual assault. Despite this, however, there remains a varied amount of demonstrable misunderstanding of the nature of the crime of sexual assault in the mind of the general public, including members of Parliament and the judiciary.
13. I argue that the inherent suspicion with which claims of sexual assault are still met today reflects three underlying assumptions: (1) women cannot be sexually assaulted against their will; (2) women secretly wish to be sexually assaulted; and (3) most accusations of sexual assault are false.[19] Sexual assault laws (including evidentiary rules, notions of "relevance", and standards for cross-examination of the victim) developed out of these misunderstandings.[20] Although statutory changes have liberally redefined the crime of sexual assault in many jurisdictions, the nature of the crime is still grossly misunderstood, and sentences of sexual offences reflect this misunderstanding.
14. I set out below some evidence of the harm resulting from sexual assaults as demonstrated by various demographic, psychological, sociological literature.
15. Victims of sexual assault do not all suffer the same degree of trauma following an attack. Exactly how a victim will respond to being sexually assaulted may depend on several factors, including demographic characteristics, personal history, the circumstances of the assault, and the availability of later social support.[21] The psychological studies of sexual assault victims are numerous. However, their findings are not always consistent. Set out below are the results of some of these studies.
16. Some studies support the view that marital status is a significant factor in the adjustment level of the victim.[22] Married victims currently living with their husbands suffer more difficulty in adjusting to the sexual assault than other victims. One explanation posited is that married victims experience further tension in relation to the attack as a result of their spouses' reaction.
17. Age also seems to be a major factor in the recovery process. One study found that adult victims were most likely to suffer from adjustment problems, with adolescent victims faring somewhat better, and children having the least adjustment problems.[23] One explanation for this finding is that adult victims' outside responsibilities prevent devotion of sufficient time and energy to the task of actively dealing with the attack.[24]
18. Other studies, however, have been unable to replicate these variations based on demographic characteristics of the victim.[25]
19. No two sexual assaults will ever be exactly alike. Some will be very physically violent and brutal, and others may focus on intimidation and fear of physical violence, yet involve little physical violence beyond the actual assault itself. One study sought to determine whether differences in the characteristics of the attack affected the adjustment process of the victim.[26] The results demonstrated that victims of the least physically violent attacks reported just as much difficulty in adjusting to the trauma as those in more physically violent incidents.[27] Victims of the least violent assaults were more likely to blame themselves, experience higher levels of guilt, and were blamed more by their partners than victims of more 'brutal' attacks.[28]
20. Further, the study demonstrated that the relationship between the type of assault and the difficulty in readjustment was curvilinear. Researchers created a continuum of eight different types of sexually aggressive behaviour, with "fondling and caressing" at one end of the spectrum and "penile intercourse" at the other end. The results demonstrated that victims at each end of the continuum experienced the greatest adjustment difficulties.[29] Researchers expected that victims of penile penetration would experience the greatest adjustment difficulties, but they were surprised by the high level of adjustment difficulties of those victims experiencing only fondling and caressing. They suggested that this response was a result of the "ambiguity" of inappropriate touching, making it difficult for the victim to segregate the attacks from every day life. Further, those who were the victims of unwanted fondling and caressing were usually acquainted with the assailant. As discussed below, the literature suggests that victims of assaults by acquaintances experience more guilt and self-blame, and a decrease in their overall trust in others as a result of the attack.[30]
21. The literature suggests that victims of assaults by acquaintances experienced longer periods of recovery than victims of assaults by strangers.[31] This is attributed to the added trauma of breach of trust. A 1991 study concluded that a sexual assault by someone known is an even more personal attack than a sexual assault by a stranger,[32] because these assaults are usually done in situations previously associated with safety and privacy. Further, being assaulted by someone known and trusted can cause a woman to seriously question her own judgment.[33]
22. Although women assaulted by unknown assailants often suffer more brutal physical violence, these women are able to more easily see their victimisation as a random, less personal event. A 1988 study of 489 female college student sexual assault victims (where 52 were victims of stranger assaults and 416 were victims of non-stranger assaults) revealed that the two groups demonstrated no difference in the levels of psychological symptoms.[34] In both groups, between one-quarter and two-fifths of the victims had considered suicide.[35]
23. The statistical evidence is clear that sexual assault by a stranger is universally less prevalent than sexual assaults by an acquaintance. In a Victorian study of all sexual assaults reported to police between 1987 and 1990, stranger sexual assaults comprised only 39% of the reported sexual assaults.[36] Sexual assaults by strangers are more likely than attacks by acquaintances to be reported to the police, so the actual percentage of stranger assaults of all sexual assaults is probably significantly lower than 39%. It is generally considered that sexual assault or attempted sexual assault by strangers accounts for the minority of such assaults, probably less than 15%.[37]
24. Studies show that causality and responsibility for sexual assaults are consistently and robustly assigned to the victim of the sexual assault.[38] Research into the relationship between the sex role attitudes and causal attributions in sexual assault cases consistently show that traditional individuals react more harshly towards sexual assault victims than do less-traditional individuals.[39] Traditional males generally consider sexual assault more justifiable if they believe the woman wanted sex. Further, attitudes towards sex roles and sexual assault have been found to affect how information about the assault, and more specifically the victim, are interpreted.[40] Traditional individuals are more likely to take a victim's behaviour prior to the attack into account, possibly attributing a causal relationship between that behaviour and the offender's responsibility.[41]
25. Studies have also demonstrated that any kind of prior sexual experience on the part of the victim leads to a reluctance to convict an accused, and the perception that that the offence is less serious.[42] Other research reveals that "date rape" is considered to be more justifiable if the victim goes to the assailant's apartment, if she initiated the date, or if the man paid all of the expenses of the date.[43] In another study, 54% of high school boys agreed that if a girl "leads a boy on", then raping her is at least "somewhat justifiable".[44]
26. The studies suggest that conservative attitudes about women and gender roles in general can result in a victim-blaming mentality which attributes sexual assault to the actions of the victims for causing men to lose control of their sexual drive. However, as discussed in Part III, although there are several theories on why men sexually assault, the theory which attributes sexual assault to uncontrollable sexual urge is universally rejected.
27. The literature discussed above leads to several conclusions. First, the psychological evidence suggests that victims suffering from "minor" attacks of fondling suffer high levels of trauma and stress as a result of the attack.[45] This suggests that the trauma in the act of a sexual assault is in the degradation and violation of bodily integrity in general, and in the resulting humiliation suffered. Gratuitous violence and more intense physical violation may not cause significantly increased trauma.
28. Further, the evidence suggests that significant lingering trauma results from the breach of trust involved in an attack by an acquaintance. Such attacks are associated with significant feelings of guilt and violation of trust. There is some evidence that these factors are at least as difficult, and possibly more difficult, to deal with than a violent attack by a stranger.
29. Finally, the evidence demonstrates that the impact of the crime on the victim does not necessarily relate to characteristics of the victim such as youth or sexual inexperience. Rather, it appears that adult victims may suffer more trauma than children, and married women victims may suffer more trauma and stress than other victims.
30. Crucial to an understanding of the culpability of the sexual offender for his actions is an understanding of why sexual assault occurs. This section briefly discusses the theories of why men commit acts of sexual assault.
31. There are a number of theories as to why sexual assault occurs, ranging from psychiatric to biological.[46] Biological theories, for example, suggest that men assault because they are biologically or genetically predisposed to do so,[47] or because it is "a form of behaviour conducive to creating offspring."[48] This theory argues that men sexually assault because they are unable to pass on their genes and reproduce by more socially acceptable means.[49] There is no support for this "survival of the fittest" theory. To the contrary, many offenders already have children, and many women not of child-bearing age are attacked. Further, some offenders kill their victims after completing the assault, and others sexually assault their victims after they are already dead. Finally, a significant number of offenders are unable to achieve erections or do not ejaculate during the attack.[50] Rather than explain the motivations for sexual assault, biological theories attempt to "excuse" sexual assault as an uncontrollable sexual urge. In my view they are unfounded.
32. Psychological theories explain sexual assault in the context of personality, attitude and cognitive qualities of the assailant.[51] They are often developed as a result of interviewing offenders to ascertain their motivation when committing the crime. These studies give the most probable indications of why sexual assault occurs. One of the most extensive studies of this nature was conducted over a ten year period involving interviews with over 500 convicted sexual assailants.[52]
33. Groth concluded that among the motivations for nearly all stranger sexual assaults were power, anger, or sadistic sexuality.[53] Anger sexual assault is motivated by rage within the sexual assailant which ultimately explodes.[54] It usually occurs after some identifiable external event not necessarily related to the victim.[55] Rape is used to vent anger, and Groth notes that this type of sexual assailant strikes sporadically and infrequently.[56] These sexual assaults are characterised by more force and brutality than necessary to overpower the victim.[57] The goal of this type of sexual assault is to hurt and humiliate the victim.[58]
34. Power sexual assault is motivated by a need to control others.[59] It was the most common form of sexual assault in the Groth study.[60] Power sexual assault serves to compensate for feelings of insecurity and inadequacy.[61] The power sexual assailant considers the sexual assault to be a sexual conquest, which demonstrates his masculinity, and generally uses only enough force to overpower the victim.[62] It is not unusual for a power sexual assailant to convince himself that the encounter was not sexual assault, and even to ask the victim out for a date following the attack.[63]
35. Sadistic sexual assault, the least common but most violent, is a fusion of sexuality and aggression which culminates in sexual assault.[64] The sadistic sexual assailant experiences sexual gratification not from the sexual component of the sexual assault but rather from the experience of observing the suffering and anguish of the victim.[65] These sexual assaults often involve torture and murder.[66]
36. Although most of the participants in Groth's study had sexually assaulted strangers, his analysis arguably applies to acquaintance sexual assaults as well. Although there are often other factors involved in acquaintance sexual assaults, such as differing perceptions of traditional dating norms, the majority of sexual assaults of this nature seem to fit within the power sexual assault theory.
37. Understanding the motivations for sexual assaults is important for two reasons. First, understanding sexual assault can lead to strategies for prevention of such attacks. Second, understanding of the motivation can be relevant to an assessment of the culpability of the offender. If sexual assault occurred because men were biologically predisposed to the act and were incapable of restraining themselves, then society's response would have to reflect the nature of the problem. To the contrary, if sexual assault results from anger, power, and violence, then a completely different societal response is warranted. The studies discussed above suggest that sexual assault occurs not because of lack of sexual self-restraint, but rather because of a desire to overpower, hurt, and humiliate women.
38. The principles underlying sentencing in Western Australia are set out in section 17A of the Criminal Code. This section provides in part that:
"(1) A sentence imposed on an offender shall be commensurate with the
seriousness of the offence.
(2) The seriousness of an offence shall be determined by taking into
account -
(a) the statutory penalty for the offence;
(b) the circumstances of the commission of the offence;
(c) any aggravating factors; and
(d) any mitigating factors.
(3) Subsection (1) does not prevent the reduction of a sentence because of
- any mitigating factors; or
- any rule of law as to the totality of sentences.
(4) A court shall not impose a sentence of imprisonment on an offender
unless it is of the opinion that - the seriousness of the offence is such
that only imprisonment can be justified; or the protection of the
community requires it.[67]"
39. Section 17A, which came into force on 21 January 1995,[68] replaced section 19A(1) of the Code.[69] Section 19A provided as follows:
"(1) Where a person is convicted of an offence punishable by imprisonment
and the Court has the option whether or not to imprison the offender the
Court shall consider-
(a) the seriousness of the offence;
(aa) the protection of the community;
(b) the circumstances of the commission of the offence;
(c) the circumstances personal to the offender;
(d) any special circumstances of the case,
and shall not imprison the offender unless it considers that no other form
of punishment or disposition available to the Court in the case is
appropriate."[70]
40. Section 19A was regarded as giving statutory form to the general principle stated in James[71] that imprisonment is the sentence of last resort.[72] Section 17A(4) now assumes that role, but section 17A(1) also articulates the proportionality principle that all sentences shall be commensurate with the seriousness of the offence. Section 17A(2) provides that the seriousness of the offence must be defined in relation to the statutory penalty, the individual circumstances of the offence, and other factors which Parliament has identified as making the offender more and/or less culpable in the eyes of the law (aggravating and mitigating factors).
41. In Western Australia, Parliament is responsible for defining sexual offences and making the initial decision as to the seriousness of the offence (through the allocation of the maximum penalty for offence). The courts then consider various factors to determine where the offence lies within the range of penalties allowed by Parliament. In this section I identify those maximum penalties, and the factors used by the courts to determine where the offence lies within the range of allowable penalties. I will frame my discussion in the context of the components of the seriousness of the offence defined in section 17A(2).
42. Pursuant to section 17A(2), the first indicator of the seriousness of the offence is the statutory penalty for the offence. Chapter XXXI of the Criminal Code defines sexual offences in Western Australia, and the maximum penalty for each such offence. In this section I will identify some of these offences and the maximum penalty applicable to each offence.[73]
43. The longest maximum sentence provided by Chapter XXXI for a sexual offence is twenty years. This penalty is applicable to assaults involving sexual penetration of a child under 13;[74] sexual penetration of a child over 13 and under 16 where the child is in the care, supervision, or authority of the offender;[75] sexual penetration of a child under 16 where the child is a lineal or de facto relative;[76] sexual penetration of an incapable person in the care, supervision, or authority of the offender;[77] and aggravated sexual penetration without consent.[78]
44. Imprisonment for fourteen years is the maximum sentence provided by Chapter XXXI for the next level of "seriousness" of sexual offences. This penalty is applicable to assaults involving sexual penetration of a child over 13 and under 16;[79] sexual penetration of an incapable person;[80] and sexual penetration without consent.[81]
45. Imprisonment for ten years is the maximum penalty for offences such as indecent dealings with a child under 13;[82] indecent dealings with a child over 13 and under 16 (where the child is in the care, supervision, or authority of the offender);[83] sexual penetration of a child of or over 16 (who is under the offender's care, supervision, or authority);[84] sexual penetration of a child over 16, or indecent dealings with a child under 16 who is a lineal or de facto relative;[85] and indecent dealings with an incapable person in the care, supervision, or authority of the offender.[86]
46. Imprisonment for seven years is the maximum penalty for offences such as sexual penetration of a child over 13 and under 16 (where the offender is under 18 and the child is not in the care, supervision, or authority of the offender);[87] indecent dealings with a child over 13 and under 16;[88] indecent dealings with an incapable person;[89] and aggravated indecent assault.[90]
47. Imprisonment for five years is the maximum penalty for offences such as indecent dealings with a child over 16 who is a lineal or de facto relative;[91] indecent dealing with a child of or over 16 (who is under the offender's care, supervision, or authority);[92] sexual penetration of a juvenile male;[93] and indecent assault.[94]
48. Imprisonment for four years is the maximum penalty for offences such as indecent dealings with a child over 13 and under 16 (where the offender is under 18 and the child is not in the care, supervision, or authority of the offender);[95] and indecent dealings with a juvenile male.[96]
49. Imprisonment for three years is the maximum penalty for sexual penetration of an adult lineal relative.[97]
50. In an effort to reduce the backlogs of the higher criminal courts, on 1 November 1995, then-Attorney General Cheryl Edwardes introduced into Parliament the Criminal Law Amendment Bill 1995 ["the Bill"], which, inter alia, proposed amendments to the penalties and procedures in relation to "minor" sexual offences.[98] The Bill proceeded to second reading the following day.[99] Present Attorney General Peter Foss announced on 28 March 1996 that the Bill "has a high priority for completion in the autumn session of Parliament this year", and that the Government would move to reintroduce the Bill into the Upper House.[100]
51. The Criminal Law Amendment Bill 1995 proposes a number of amendments to the Criminal Code which would create summary conviction penalties for "minor" sexual offences. A "summary conviction" is a conviction before a Court of Petty Sessions.[101] The provision of a summary conviction penalty allows for the accused to elect trial in the Court of Petty Sessions in exchange for a fine or a reduced maximum term of imprisonment. When a person has been summarily convicted of an indictable offence, the conviction is deemed a conviction of a simple offence, and not an indictable offence.[102]
52. Section 17 of the Bill creates a summary conviction penalty of 3 years imprisonment or $12,000 fine for:
"- indecently dealing with of a child over the age of 13 but under the age
of 16;
- procuring, inciting, or encouraging a child over the age of 13 but under
the age of 16 to do an indecent act; or
- indecently recording of a child over the age of 13 but under the age of
16."[103]
53. The penalty currently provided for these offences by section 321(8)(a) of the Criminal Code is 7 years imprisonment.
54. Section 18 of the Bill creates a summary conviction penalty of imprisonment for 2 years or a fine of $8000 for:
"- indecently dealing with of a child over the age of 16 who is in the
care, supervision, or authority of the offender;
- procuring, inciting, or encouraging a child over the age of 16 who is in
the care, supervision, or authority of the offender to do an indecent act;
or
- indecently recording of a child over the age of 16 who is in the care,
supervision, or authority of the offender."[104]
55. The maximum penalty currently provided for these offences in section 322(4), (5), & (6) of the Criminal Code is 5 years imprisonment.
56. Section 19 of the Bill creates a summary conviction penalty of imprisonment for 2 years or a fine of $8000 for:
"sexual penetration of a male juvenile by a male person, or procuring or permitting a male juvenile to sexually penetrate a male person," [105] and
"indecently dealing with a male juvenile by a male person, or procuring or permitting a male juvenile to indecently deal with a male person."[106] The maximum penalties currently provided for these offences in section 322A(2) & (3) of the Criminal Code are 5 and 4 years imprisonment respectively.
57. Section 20 of the Bill creates a summary conviction penalty of imprisonment for 2 years or a fine of $8000 in relation to unlawful and indecent assault.[107] The maximum penalty currently provided for in section 323 of the Criminal Code is 5 years imprisonment.
58. Section 21 of the Bill creates a summary conviction penalty of imprisonment for 3 years or a fine of $12,000 in relation to unlawful and indecent assault under circumstances aggravation.[108] The maximum penalty currently provided for in section 324 of the Criminal Code is 7 years imprisonment.
59. The maximum penalties for sexual offences discussed above are rarely applied, because they are reserved for the very "worst type of case" falling within the offence as defined.[109] There is, therefore, a range of possible penalties applicable to sexual offences, from probation to the maximum term of imprisonment provided for that offence ["the range"]. As stated by the Full Court in Powell:
"One of the great difficulties which faces a judge sentencing an offender for a crime of sexual assault is the enormous range of conduct which could come within the description of the offence. The range includes digital penetration and runs through almost the entire gamut of sexual conduct of which penetration is a feature. It includes an isolated, spur of the moment, incident of sexual misconduct. On the other hand, it may also include a premeditated, planned act which is representative of a series of incidents."[110]
60. To determine the appropriate penalty within the range, the sentencing judge must consider how the offence itself was committed. These facts comprise the "circumstances of the commission of the offence".[111]
61. Section 17A(2)(b) provides that the circumstances of the offence must be a factor in determining the seriousness of the offence. However, section 17A does not identify or limit the facts which the courts may consider in making this determination. Within the confines of the maximum statutory penalty, the circumstances of the offence are usually the most important factors in sentencing disposition. In this section I identify which circumstances of the commission of the offence the WA courts have considered to be relevant to the sentencing disposition in sexual assault matters.[112]
62. Before discussing the facts which the CCA considers relevant to sentencing disposition, it is necessary to understand the concept of the tariff sentence. The Criminal Code imposes a maximum penalty for various sexual offences, but as mentioned above, the maximum penalty is not normally awarded by the courts. This does not mean, however, that there is no informal fixed penalty (a "tariff") for a particular offence. There has been a great deal of discussion by the CCA as to the existence of a tariff in sentencing sexual offences. In R v Ginder,[113] Burt CJ stated that:
"...[t]here are no doubt many degrees of culpability within the circumstances of each act of sexual penetration and within each generally stated circumstance of aggravation. They should not be ignored. And the personal antecedents of the offender must remain of considerable significance. They, too, cannot be ignored. Hence a "tariff" for offences against s324D [now s 325] and s324E [now s 326] of the Code will remain as elusive as ever. But having said that I think it must remain the case that all mitigating circumstances within any particular case must be seen to be operating upon a sentence which gives proper expression to the general value judgment of the Parliament so recently expressed."[114]
63. This notwithstanding, Malcolm CJ in Podirsky[115] sets out such a tariff:
"...it is the case that for a single act of sexual assault under section 324D of the Code by penial [sic] penetration (still commonly called rape) a sentence of about 6 years is commonly imposed. It is possible that such a sentence could be reduced by mi tigating factors. In the case of a single act of aggravated sexual assault by penial [sic] penetration much depends on the circumstances of aggravation, but where the relevant circumstance is that the complainant is under the age of 16 years, a sentence of about eight years is commonly imposed. Again this could be reduced by particular mitigating factors. Where there is a series of offences of aggravated sexual assault involving a girl under 16 years there is more room for variation, but sentences with in the range of nine to 11 years are commonly imposed.
* * *
I would not, however, regard these sentences as having the characteristics of "tariff" sentences because, as Burt CJ pointed out in R v Ginder there is so much room for individual variation in terms of the kinds of sexual penetration and other sexual acts and the circumstances of aggravation, quite apart from personal and other factors of mitigation."[116]
64. The CCA has consistently maintained that there is no tariff in relation to sexual penetration in Western Australia.[117]
65. The actual situation is more accurately described by Murray J Pinder,:
"... there can in relation to such sexual offences be no suggestion that there is any settled tariff to be applied to the sentencing process... . However, in my view a convenient starting point in this case is the remarks made by this Court in Powell v The Queen [citation omitted] ... "for an isolated act of digital penetration, while probation orders have been imposed on rare occasions, custodial disposition is usual, and terms of imprisonment of up to three and a half years have been pronounced. This type of disposition bears appropriate relativity to the sentences of six to eight years commonly imposed for penile penetration ..."[118]
66. Whether it is an informal "tariff" or a "convenient starting point", the majority of sentences for sexual penetration are in the range set out by the Chief Judge in Podirsky.[119] This suggests that these sentences do serve the function of an informal tariff, although variations are not unusual.[120] Accordingly, I will continue to refer to this clustering of sentences in the range set out by the Chief Judge in Podirsky as the "tariff", even though it is not, strictly speaking, a true tariff.
67. The primary indicator of the length of a sentence for sexual penetration is the method of penetration. Amendments to the Criminal Code in 1985 redefined the elements of sexual assault, and consolidated various types of sexual assault into one crime defined as sexual penetration without consent.[121] Pidgeon J discussed his interpretation of the implications of the legislative changes in R v Ginder.[122]
"It becomes apparent from a reading of the section relating to the offence of sexual penetration that the legislature is aiming to place in the category of a defined offence of the highest degree of seriousness all types of penetration without consent as contrasted with the previous situation of penial [sic] penetration being in the highest category and other forms of penetration being the subject of lesser offences... . One, therefore, would not normally look to the method of penetration for the purpose of grading a sentence except to see to what extent it gives rise to circumstances of aggravation such as bodily harm or further humiliation."[123]
68. This view that all types of sexual penetration (digital, oral, penile, or foreign object) were equally heinous and subject (in appropriate circumstances) to the maximum penalty was confirmed by Burt CJ in Ibbs v The Queen:
"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 fourteen years imprisonment and as I observed in R v Ginder [citation omitted] 'it is apparent that the (Code as amended)... creates one offence which embraces without distinction inter se all the identified kinds of sexual 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'."[124]
69. The High Court, however, rejected this notion.[125] The entire court joined in the opinion that:
"...although... the judgments [of the CCA] in this case [do not] 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 section 324F [digital, penile, etc] is neither more nor less heinous than another. That proposition cannot be accepted....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....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 a sexual penetration as defined."[126]
70. As a consequence of the decision of the High Court in Ibbs, the "tariff" for so called "less serious" penetration (such as digital penetration) became significantly less than for penile penetration.[127] This policy is reflected in the recent WA sentencing decisions which clearly impose a higher penalty for incidents of penile penetration than incidents of digital penetration where both types occur in the context of the same attack.[128] The exception appears to be where the victim is subjected only to digital penetration during an aggravated attack.[129]
71. Penetration of the victim's mouth by the offender's penis is a frequent companion of other types of sexual penetration, but is less usual on its own. In Lawson v R, the offender was sentenced to 7 years imprisonment for forced oral penetration of the victim in the conjunction with several other types of penetration.[130] In Williams v R, the offender was sentenced to 5 years imprisonment for forcing oral penetration on a 12 year old girl, and ejaculating in her mouth.[131] In Lindsay v R, the offender was sentenced to 6 years 7 months (with 17 months credit for time spent in custody) for forcing his penis into the mouths of two young boys (ages 12 and 13) during a two hour attack involving some violence.[132]
72. In relation to anal penetration, the CCA has indicated that such penetration may, in certain circumstances, be more serious than vaginal penetration.[133] The penetration may be more painful, cause more lasting damage to the victim, or involve increased culpability.[134] However, Franklyn J warned that:
"Whether anal penetration is of itself more degrading than penetration of another sort may, as counsel submits, be a matter of moral judgment. It is in any event unwise to so distinguish between acts of sexual assault in the absence of known objective supporting facts."[135]
73. In Wilson, the CCA upheld a sentence of 7 years in respect of anal penetration and 5 years in respect of vaginal penetration of the victim in relation to the same attack.[136]
74. In Zapata v R, the CCA upheld sentences of 14 years imprisonment each for vaginal and anal penetration of the same victim in the same attack (in circumstances of extreme aggravation).[137]
75. Section 17B of the Criminal Code defines the "aggravating factors" referred to in section 17A.
"(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."[138]
76. These aggravating factors are in addition to those circumstances of aggravation which go to the definition of the offence itself. Section 319(1) defines specific circumstances of aggravation in relation to determining the offence with which the offender is charged. These include:
"(a) at or immediately before or immediately after the commission of the
offence -
(i) the offender is armed with any dangerous or offensive weapon or
instrument or pretends to be so armed;
(ii) the offender is in company with another person or persons;
(iii)the offender does bodily harm to any person;
(iv) the offender does an act which is likely seriously and substantially
to degrade or humiliate the victim; or
(v) the offender threatens to kill the victim; or
(b) the victim is:
(i) of or over the age of 13 and under the age of 16 years old; or
(ii) of or over the age of 60 years;"[139]
77. Because the circumstances of every sexual offence differ, there is a limitless combination of factors which sentencing judges might consider relevant to assessing the seriousness of the offence. In the cases reviewed, the courts identified the following factors as circumstances which aggravated the commission of the offence itself: evidence of planning and premeditation;[140] evidence of harm to the victim;[141] helplessness of victim;[142] unnecessary attack on victim's credibility at trial;[143] duration of the assault;[144] virginity/innocence/naivete of the victim;[145] victim a "stranger" to the offender;[146] assault in the privacy of victim's home;[147] absence of remorse;[148] setting a trap to snare a victim.[149] In relation to the circumstances of aggravation set out in section 319, the courts assessed the seriousness of aggravating circumstances in relation to: the type of weapon, the number of offenders, the extent of the bodily harm to the victim, the nature and extent of the threats to kill, and whether an offence featured multiple aggravating circumstance.
78. Section 17C of the Criminal Code defines the "mitigating factors" referred to in section 17A.
"(1) Mitigating factors are factors which, in the court's opinion,
decrease the culpability of the offender.
(2) The fact that property derived or realized [sic], directly or
indirectly, by the offender, or that is subject to the effective control
of the offender, as a result of the commission of the offence is forfeited
to the Crown under a written law is not a mitigating factor."[150]
79. As with aggravating factors, there is a limitless combination of factors which sentencing judges might consider relevant to mitigating the seriousness of the offence. In the cases reviewed, the courts identified the following factors as mitigating circumstances: the youth of the offender;[151] cultural background (specifically Aboriginality);[152] consumption of alcohol (where alcohol abuse reflects socio-economic circumstances and environment of deprivation);[153] good personal circumstances of the offender (such as steady employment, good antecedents, etc);[154] evidence that custodial sentence will impose hardship on the victim;[155] evidence that offence was an impulsive act by the offender;[156] emotional state of the offender;[157] genuine remorse.[158] One factor which the CCA has confirmed is not a mitigating factor is whether the offence was committed in the family context.[159]
80. Having set out the maximum penalties imposed by Parliament and the factors influencing the actual penalties imposed by the courts in part IV, I will now evaluate whether these indicators of offence seriousness reflect an accurate understanding of the harm resulting from sexual offences, and the culpability of sexual offenders.
81. The maximum penalties for sexual offences in Chapter XXXI range from 4 to 20 years imprisonment. The disparity in these penalties reflects Parliament's view of the seriousness of each offence. A review of these penalties identifies three primary indicators of offence seriousness: the victim's age, whether the sexual act involved penetration, and whether section 319 circumstances of aggravation were present. For each of these indicators, I will speculate as to Parliament's assumptions and reasoning, and consider whether Parliament's assumptions and reasonings reflect an accurate understanding of the harm resulting from the offence and the culpability of the offender.
82. Offences against children account for the bulk of the sexual offences defined in Chapter XXXI. Parliament views offences against young victims as more serious than offences against adult victims, and awards correspondingly high maximum penalties for such offences.[160] The reason for this probably relates more to the culpability of the offender rather than the harm to the victim. The psychological evidence discussed in part II above suggests that children suffer fewer adjustment difficulties following sexual assaults than do adolescents and adults.[161] However, because children are vulnerable to the power of adults, unlikely to understand the meaning of acts of a sexual nature, and are unable to protect themselves, society holds those who prey on their vulnerability more culpable for their actions. Likewise, Parliament views sexual offences against persons with a mental incapacity with similar gravity.[162] Society deems offenders who exploit those persons unable to fully understand issues of con sent and unable to protect themselves against sexual predators to be more culpable for their acts.[163]
83. Further, where children are involved, the existence of a relationship between the victim and the offender is an aggravating factor. Maximum penalties are higher where the offender had the victim under his care, supervision, or authority.[164] This factor is directly related to the culpability of the offender, penalising the offender for taking advantage of the position of authority and trust vested in him or her. A similar rationale supports the increased penalties where there is a lineal or de facto family relationship between the offender and the victim.[165] Given the vast number of sexual offences committed by the male partner of the victim's mother, the increased penalties for these offences may also harbour a deterrent goal.
84. Sexual offences in Chapter XXXI are segregated into sexual offences involving penetration and sexual offences not involving penetration. "Indecent" acts (including indecent dealing, recording, and assault), involve touching or viewing of a sexual nature, but no penetration. "Sexual acts" (including penetration, behaviour and coercion) involve penetration or other "carnal knowledge". The maximum penalties for sexual acts are far in excess of indecent acts.[166] This disparity results from a common view that acts of penetration (especially penile penetration) are more serious than fondling, caressing, and other indecent acts. However, this perceived "seriousness" appears not to relate to the harm suffered by the victim as a result of the assault. As the psychological literature discussed in part II suggests, victims of non-consensual fondling and caressing suffer roughly similar levels of adjustment difficulty as victims of penile penetration.[167] Any concern by Parliament for the actual harm to the victim should have revealed this evidence.
85. Nor can the disparity be allocated entirely to the culpability of the offender. The culpability of the offender does not relate exclusively to the nature of the act. Crucial to assessing the culpability of the offender is an understanding of motivation in committing the offence. Given Groth's study that many sexual assaults are motivated by power and anger,[168] it does not logically follow that the culpability of the offender would necessarily be less for an indecent assault rather than for sexual penetration. If the intent of the offender is to substantially degrade and humiliate the victim by the act, I argue that whether penetration occurs is irrelevant.
86. The Amendment Bill currently pending exacerbates the disparity between sentences for indecent acts and sexual acts by offering a substantially reduced penalty or a fine for acts of indecency. The offences subject to these reduced penalties include indecent offences against children aged 13 to 16, and indecent offences against children aged 16 or older where the victim is in the care, supervision, or control of the offender. Given what section III discloses about the motivation of sexual offenders, it is difficult to consider these offences "minor". Regardless of the innocent motivation of Parliament (to reduce the backlog in higher criminal courts), the Amendment Bill reinforces the notion that Parliament (at worst) fails to understand, and (at best) chooses to ignore the nature of and motivations for sexual offences.
87. As discussed above, section 319 of the Criminal Code sets out a number of circumstances which, if accompanying a sexual assault, are serious enough to raise the maximum penalty for the offence. These include factors such as whether the offender is armed, acting in a group, physically harms the victim, humiliates or degrades the victim, or threatens to kill the victim. Circumstances of aggravation also include offences against young or elderly victims. These factors go to the definition of the offence.
88. Each of these factors clearly go to the increased culpability of the offender. Further, several also are likely to result in increased harm to the victim. Where the offender has been charged with an offence which, by definition, includes circumstances of aggravation, the maximum penalty is significantly higher than "simple" (non-aggravated offences. These aggravated offences reflect Parliament's acknowledgment of the increased culpability and harm resulting from offences of this nature.
89. The actual penalties imposed by the courts for sexual offences in Chapter XXXI range from non-custodial "sentences" to 18 years imprisonment. The disparity in penalties reflects the courts' views of the seriousness of each offence. A review of appeals from sentences identifies four primary factors going to the length of the sentence imposed: the "tariff" for a particular offence; the method of penetration achieved (in penetration cases); aggravating factors; and mitigating factors. For each factor, I will discuss the effect on the length of sentence (increase or reduction), and whether it reflects an accurate understanding of the harm resulting from the offence and the culpability of the offender.
90. As discussed above in part IV(B)(1), sentences imposed on sexual offenders are generally clustered within a range which is significantly less than the maximum penalty for the offence. When sentencing sexual offenders, courts look to the "tariff" for the offence at hand, and then determine where the circumstances of that offence fit in relation to the tariff case. Accordingly, the "tariff" has a significant influence on the penalty ultimately applied by the courts in a sexual offence.
91. The tariff imposed by the courts is the result of the cumulative knowledge and experience of many sentencing judges. However, the tariff does not respond well to changes in the Parliamentary view of the seriousness of the offence, as reflected in changes to the maximum penalties imposed by Parliament. This is notwithstanding initial judicial rumblings in response to such changes. In 1985, Parliament redefined sexual offences and their maximum penalties. The CCA made the following comments in relation to the meaning of such changes.
"The new offence provides for the maximum penalty when there are circumstances of aggravation of twenty years as distinct from life imprisonment in respect of rape and this may be an indication that the newly defined offence is not as serious. However, a reading of the Parliamentary debates shows very clearly that that was not in the mind of those moving the enactment and voting on it. I would refer to the following extract from Hansard:
'The Government expects that the new penalties will be take by the courts to indicate Parliament's view that sexual assaults are extremely serious offences and that should be reflected in the penalties imposed.
That particularly applies to the worst cases of sexual assault, where the proposed maximum of 20 years will establish new and clear guidelines. At present, the maximum penalty for rape is life imprisonment. Actual sentencing practice, however, has deprived this maximum of any relevance or reality. It is no longer an effective maximum. Indeed, the highest penalty imposed in recent years for the worst type of rape has been 14 years.
The Government believes that although sentencing is a matter which must ultimately be left to the discretion of the courts, it is appropriate that the worst types of sexual assault, previously punished by a maximum of, effectively, 14 years, should be subject to a term of imprisonment towards the top end of the 20 year range.'
... the extracts to which I have referred would make it clear that it was in the minds of those proposing the legislation that the actual penalty in the worst case should be towards the top of the maximum penalty."[169]
92. In several cases thereafter, the CCA discussed its intent to respond to the above Parliamentary statements.[170] However, there was no identifiable increase in the tariff's imposed for various sexual offences. Further, between 1991 and 1994, the CCA considered and upheld only 2 sentences which were in the top 25% of the penalty for aggravated sexual penetration of an adult.[171] The majority of sentences remained clustered in the region of less than 50% of the maximum penalty.
93. In my view, the "tariff" or "starting point" for sentencing sexual offenders does not currently reflect the gravity which Parliament has clearly allocated to those offences. The use of the tariff as a sentencing mechanism has deprived the maximum penalty of any significant role in the sentencing process. This is a present concern of Parliament,[172] although it has made no indications of any attempts to address the problem.
94. The present issue, however, is whether the use of the "tariff" promotes the von Hirsch standard of proportionality. In my view it does not. Use of the tariff as a starting point in sentencing ensures external consistency in sentencing (ie, persons committing similar acts of sexual violence are likely to have sentences consistent with one another), but bears only distant (if any) relationship to the culpability of the offender and harm to the victim. These factors become incorporated into the sentence as aggravating or mitigating factors which serve only to increase or decrease the tariff penalty. This system of sentencing substantially differs from undertaking an assessment of the harm to the victim and culpability of the offender in the context of the maximum penalty allowed, and then making minor adjustments to correct for external inconsistency (if necessary). It assumes (without testing) that the "tariff" penalty still accurately reflects the seriousness of the offence, which, as I argue above, it does not. Use of the tariff as the first step in the sentencing process thus distorts the proportionality of the sentencing process.
95. As discussed in part IV(B)(2) above, a major factor affecting the length of sentence for sexual penetration is the method of penetration achieved. Judges consider digital penetration to be a "less serious" penetration, and the tariff for these cases where there are no circumstances of aggravation is roughly half the tariff for penile penetration. The CCA has provided no foundation for its assumption that digital penetration is a less serious form of assault.[173]
96. As discussed in part V(A)(2) above, this disparity results from a common view that acts of penile penetration are more serious than other sexual offences. However, this perceived "seriousness" probably does not to relate to the harm suffered by the victim as a result of the assault. While the psychological literature discussed in part II does not specifically address digital penetration, the nature of the results suggest that the findings would apply in that context.[174]
97. Finally, the disparity cannot be allocated entirely to the culpability of the offender. As discussed above, the culpability of the offender does not relate exclusively to the nature of the act. Crucial to assessing the culpability of the offender is an understanding of motivation in committing the offence. Given the motivations for sexual assault identified in Groth's study, it does not logically follow that the culpability of the offender would necessarily be less for penile penetration than for digital penetration. If the intent of the offender is to substantially degrade and humiliate the victim by the act, I argue that the nature of the penetration is irrelevant.
98. Accordingly, I consider that focusing on the nature of the penetration fails to meet the von Hirsch standards for proportionality.
99. Another factor in the length of sentence is the type and number of aggravating factors in relation to the offence. In addition to those aggravating factors incorporated into the definition of the offence (section 319 aggravating factors), the court considers a number of other factors to be relevant to the seriousness of the offence and will increase the "tariff" where such factors are present. These are detailed above in section IV(C).
100. The aggravating factors considered relevant by the courts generally reflect the von Hirsch standard of proportionality. Most go clearly either to the culpability of the offender (such as evidence of planning and premeditation, helplessness of the victim, duration of the assault, an invasion of the privacy of the victim's home, naivete/innocence of the victim, absence of remorse, and setting a trap to ensnare the victim) or to the harm resulting from the assault (such as evidence of harm to the victim, unnecessary attack on the victim's credibility, duration of the assault, invasion of the sanctity of the victim's home, and whether the victim knew the offender (solely on the issue of the victim's fear of AIDS or other disease resulting from the attack). The use of these aggravating factors by sentencing courts does meet the von Hirsch standard of proportionality.
101. The final factor in the length of sentence is the type and number of mitigating factors in relation to the offence. These are the factors which the courts consider relevant to reducing the culpability of the offender and thus decrease the seriousness of the offence. These are detailed above in section IV(C). By definition (being factors only going to the culpability of the offender), these factors bear no relationship to the harm to the victim, and in that sense they are unable to reflect the standard of proportionality articulated by von Hirsch. This is not itself fatal. The real problem in relation to mitigating factors applied by the courts is the fact that several of these factors bear no relationship to the culpability of the offender. For example, evidence of good personal characteristics of the offender goes to whether the offender is likely to re-offend rather than the culpability of the offender. This is not a factor which meets the von Hirsch standard of proportionality. Further, imposing a non-custodial sentence on an offender based on evidence that a custodial sentence will harm the victim is really an accommodation of the special needs of the victim rather than a mitigating factor, and bears no relationship to proportionality. Finally, evidence that the offence was committed on impulse or because the offender was in an "emotional state" (absent evidence of mental illness) bears little or no legitimate relationship to the offender's responsibility for his actions, and thus does not promote proportionality.
102. Because mitigating factors by definition bear no relationship to the harm to the victim, they raise an area of special concern: that the courts are not seen to be reducing sentences for sexual offences at the expense of increased violence against women. In Leering[175], Malcolm CJ recognised:
"the dilemma faced by the courts in the administration of criminal justice in taking proper account of the mitigating factors relevant to sexual offences committed by drunk [A]boriginal persons normally residing in remote communities, while affording the protection of the criminal law to [A]boriginal women and young girls who become the potential victims of such offences."[176]
103. Although factors such as the offender's Aboriginality, youth, and circumstances of deprivation are do legitimately reduce his responsibility for his actions, and these factors support the culpability arm of the von Hirsch standard of proportionality, the harm to Aboriginal women especially cannot be ignored.
104. The title of part V asks the question whether sentencing policy in Western Australia achieves the principles of proportionality promoted by von Hirsch. The answer is both yes and no. In many respects, the factors considered by Parliament in determining maximum penalties for offences, and the factors applied by the courts in sentencing sexual offenders are at least arguably related to the culpability of the offender or the harm to the victim. In several very important instances, however, both Parliament and the courts demonstrate misunderstandings of the nature of sexual offences and the resulting harm to the victim.
105. On the whole, the focus of Parliament and the courts in Western Australia is on the culpability of the offender rather than the harm to the victim. The courts generally only consider the harm to the victim as an aggravating circumstance, rather than as a fundamental element of the offence. Some judges still fail to appreciate the psychological harm resulting from sexual assaults, noting the absence of harm as a factor in favour of mitigation.[177] Failure to appreciate the harm resulting from sexual assault is one likely explanation for its failure to play a major role in assessing the seriousness of the offence.
106. However, this is evidence that this might be changing to some extent. As recognised by Murray J in Pinder:
"A primary circumstance which dictates that such an offence is serious of itself is, of course, that no matter what is the particular age, history, personality or circumstances generally of the victim, the commission of the offence represents a generally forceful invasion of the most private parts of victim's person in a way which is inevitably demeaning. The court will take judicial notice of the fact that it is destructive of the victim's sense of self worth that another should behave towards that person by the commission of such an offence....The court will react properly to that in seeking a sentencing disposition which is proportionate to the gravity of the crime. And what I have described is not discounted at all in my view, by particular circumstances such as the history and, perhaps discreditable, lifestyle of the victim, any suggestion that the victim may have behaved so as to make possible or more likely the commission of the offence, the robustness of that person, or that person's resilience and capacity to quickly reorder his or her life.
On the other hand, this is an offence such that the offender may be required to take the victim as that person is found, if that person displays particular characteristics which aggravate the commission of the particular offence. That will be so if the victim is young or very old, mentally or physically incapacitated to a degree from protecting himself or herself, or is of a particular sensitivity or personal makeup which exacerbates the effects of the commission of the crime upon the victim beyond that which might be ordinarily anticipated."[178]
107. Justice Murray's comments here suggest that in the future, perhaps the court's will pay more regard to the harm resulting from the offence when sentencing sexual offenders.
108. von Hirsch argues that achieving proportionality in sentencing requires an assessment of the seriousness of the offence in relation to the harm resulting from the offence and the culpability of the offender. I argue that application of this standard of proportionality requires a realistic understanding of the nature of the crime for which an offender is sentenced, and where that crime fits in the continuum of gravity of the offence. A misunderstanding of the nature of a particular crime may result in gross inequalities in sentencing and a failure in the restorative function of punishment.
109. In this article I have considered whether, in practice, Western Australia conforms to this standard of proportionality. I conclude that it loosely conforms to this standard, but fails to achieve the standard of proportionality in several key areas. This is a result of both Parliament's and the courts' failure to adequately understand the nature of sexual offences, and has lead to the creation of hierarchies of sexual assault "severity" which bear little or no relationship to the harm to the victim or the culpability of the offender. The ultimate result of this practice will be a gradual retreat from proportionality in sentencing.
110. The pending amendments to the Criminal Code act upon and further the creation of these false hierarchies by creating summary conviction penalties for perceived "minor" sexual offences. They ratify the concept of ranking sexual offences without regard to the real nature of the crime.
111. I conclude with the suggestion that if Parliament and the courts insist on ranking sexual offences, in furtherance of proportionality this ranking should be based on the following factors:
- the harm to the victim, particularly in relation to violation of the victim's trust, notions of security and safety, and physical integrity; and
- an assessment of the culpability of the offender, recognising the likelihood that the assault occurred as a result of anger, power, violence and a desire to overpower, hurt, and humiliate women, rather than as a result of a lack of sexual self-restraint.
112. If the judiciary and the legislature are not prepared to rank sexual offences in relation to these factors, then they should not be involved in the exercise at all.
Imprisonment for 20 years:
Imprisonment for 14 years:
Imprisonment for 10 years:
Imprisonment for 7 years:
Imprisonment for 5 years:
Imprisonment for 4 years:
Imprisonment for 3 years:
1. "Briefing: The Sex Crime Wave," The West Australian 19 March 1996, 4. [return to text]
2. "Briefing: The Sex Crime Wave," The West Australian 19 March 1996, 4. [return to text]
3. Rose, R, "Judges soft on crime, says Wiese", The West Australian 20 March 1996, 7. [return to text]
4. Rose, R, "Judges soft on crime, says Wiese", The West Australian 20 March 1996, 7. The proposed changes are set out in ss 17-21 of the Criminal Law Amendment Bill(WA) 1995. These sections propose to create a summary conviction penalty for certain sexual offences, allowing them to be heard by the Court of Petty Sessions. [return to text]
5. Ashworth, Andrew, Sentencing and Penal Policy (London: Weidenfeld and Nicholson, 1983). [return to text]
6. Ashworth, Andrew, Sentencing and Penal Policy (London: Weidenfeld and Nicholson, 1983). [return to text]
7. Hoare & Easton (1989) 167 CLR 348 at 353-54; Veen (No 2) (1988) 164 CLR 465 at 472. [return to text]
8. Veen (No 2) (1988) 164 CLR 465 at 472. [return to text]
9. Steels, WA Court of Criminal Appeals, unreported, 27 May 1993, SCLN 930306, at 6. [return to text]
10. Azaddin, WA Court of Criminal Appeals, unreported, 28 January 1994, SCLN 940030, at 6. [return to text]
11. The Criminal Code (WA) ["Criminal Code"] s 17A. This principle is also expressed at section 6 of the Sentencing Act (WA) 1995. The Sentencing Act does not, however, repeal section 17A of the Criminal Code, or any of the provisions relating to sentencing in Chapter XXXI of the Criminal Code. [return to text]
12. Criminal Code s 17A. [return to text]
13. von Hirsch, Andrew, "Doing Justice: The Principle of Commensurate Deserts", in Gross, H & von Hirsch, Andrew (eds) Sentencing (New York: Oxford University Press, 1981), 243. [return to text]
14. By sentencing policy I mean the system of maximum penalties set by Parliament in the Criminal Code in conjunction with the factors which the courts consider to sentence an offence within the range created by Parliament's maximum penalty. [return to text]
15. Le Grand, C, "Rape and Rape Laws: Sexism in Society and Law" in Chappell, Duncan et al. (eds), Forcible Rape: the Crime, the Victim, and the Offender (New York: Columbia University Press, 1977), 67 - 86. [return to text]
16. Le Grand, C, "Rape and Rape Laws: Sexism in Society and Law" in Chappell, Duncan et al. (Eds), Forcible Rape: the Crime, the Victim, and the Offender (New York: Columbia University Press, 1977), 68. [return to text]
17. Le Grand, C, "Rape and Rape Laws: Sexism in Society and Law" in Chappell, Duncan et al. (Eds), Forcible Rape: the Crime, the Victim, and the Offender (New York: Columbia University Press, 1977), 68. [return to text]
18. Le Grand, C, "Rape and Rape Laws: Sexism in Society and Law" in Chappell, Duncan et al. (Eds), Forcible Rape: the Crime, the Victim, and the Offender (New York: Columbia University Press, 1977), 69. [return to text]
19. Allison, J & Wrightsman, L, Rape: the Misunderstood Crime (Newbury Park: Sage, 1993), 98. A 1971 study of 38 Philadelphia, Pennsylvania judges who handled sexual assault cases revealed that the judges generally divided the victims into three categories: the genuine victim, consensual victims, and vindictive females. Bohmer, C, "Judicial Attitudes Toward Rape Victims" in Chappell, Duncan et al. (eds), Forcible Rape: the Crime, the Victim, and the Offender (New York: Columbia University Press, 1977), 162, 164-65. "Genuine victims" were those who suffered attacks which the judges had no difficulty identifying as rape ("stranger leaping out of the shadows in a dark alley" type of rape). Id, 164. These victims were given sympathetic hearings, and the judges reacted very punitively toward the offenders. Ibid. Judges recognised that the trauma in situations such as these was devastating, and that "the average girl...will never get over it...rarely do they ever adjust to a full, happy life." Ibid. "Consensual victims" were those who the judges saw as "asking for it", such as a victim who met a man in a bar, accepted a ride home from him, and was subsequently sexually assaulted. Ibid. Incredibly, the judges described such sexual assaults as "friendly rape", "felonious gallantry", "assault with failure to please", and "breach of contract". Ibid. The third category, "vindictive females", were those cases in which the judge believed that either the event was completely consensual, or did not actually occur. Id, 164-65. [return to text]
20. Some argue that the traditional evidentiary rules, notions of relevance, and standards for cross-examination to which claims of sexual assault were generally subjected legitimately arose because of the prosecution's obligation to prove all criminal charges beyond a reasonable doubt, and the "relative ease" with which a claim of sexual assault could be fabricated (because people regularly engage in consensual intercourse). The oft quoted statement of Lord Chief Justice Hale that sexual assault is a charge "easily to be made and hard to be proved, and harder to be defended" reflects these arguments. Le Grand, C, "Rape and Rape Laws: Sexism in Society and Law" in Chappell, Duncan et al. (eds), Forcible Rape: the Crime, the Victim, and the Offender (New York: Columbia University Press, 1977), 74-75. Yet, there is no empirical evidence to support the view that claims of sexual assault are more often or more easily fabricated than other crimes. Rather, I argue that these arguments reflect the myth of the unreliability of women's evidence, and the fear of convicting innocent men of sexual assault. Id, 77. Evidence of the "unchastity" of the victim (ie, lack of virginity) was generally considered relevant to demonstrating the probability of her consent to the offence in question, and also to her credibility. Ibid (citing California law). The corroborative evidence rules required evidence other than the victim's testimony to convict for sexual assault. Id, 78. One judge defended the New York corroborative evidence rule by arguing that prosecuting attorneys must continually be on guard against rape charges brought by "spurned" females, stating that "far too many men have been railroaded on sex offence charges." Ibid (citing Ploscowe, Morris, "Sex Offences: The American Legal Context" (1960) 25 Law and Contemporary Problems 217-25). Yet there is no real basis for the suspicion and hostility with which claims of sexual assault were treated under the traditional rules in comparison with other crimes. Studies in the United States in the late 1960's and early 1970's revealed that approximately one fifth of sexual assault complaints received were "unfounded". Le Grand, C, "Rape and Rape Laws: Sexism in Society and Law" in Chappell, Duncan et al. (eds), Forcible Rape: the Crime, the Victim, and the Offender (New York: Columbia University Press, 1977), 71. "Unfounded" in this context means not that there was no basis for such complaints, but rather that for various reasons the police advised the victim against prosecution. Ibid. Most complaints which were "unfounded" by the police included one of the following factors: evidence that the victim was intoxicated, delay by the victim in reporting the assault, lack of physical condition supporting the allegation, refusal to submit to a medical examination, a previous relationship between the victim and the offender, or the use of a weapon without accompanying battery. Id, 71-72. Most of these factors are not relevant to whether a sexual assault was committed, but because of evidentiary rules, and expanded notions of relevance, most would relate to the chances of obtaining a conviction, especially from the perspective of the largely male police, prosecutors, and juries who appraised the case. Id, 72. [return to text]
21. Allison, J & Wrightsman, L, Rape: the Misunderstood Crime (Newbury Park: Sage, 1993), 161. [return to text]
22. Allison, J & Wrightsman, L, Rape: the Misunderstood Crime (Newbury Park: Sage, 1993), 162 (referring to McCahill , TW, et al, The Aftermath of Rape (Lexington: Lexington, 1979)). [return to text]
23. Allison, J & Wrightsman, L, Rape: the Misunderstood Crime (Newbury Park: Sage, 1993), 162 (referring to McCahill , TW, et al, The Aftermath of Rape (Lexington: Lexington, 1979)). [return to text]
24. Allison, J & Wrightsman, L, Rape: the Misunderstood Crime (Newbury Park: Sage, 1993), 162 (referring to McCahill , TW, et al, The Aftermath of Rape (Lexington: Lexington, 1979)). [return to text]
25. Allison, J & Wrightsman, L, Rape: the Misunderstood Crime (Newbury Park: Sage, 1993), 162 (referring to Kilpatrick, DG, et al, "Factors Predicting Psychological Distress Among Rape Victims," in Figley, CR, (Ed) Trauma and its Wake (New York: Brunner/Mazel, 1985), 113-141). [return to text]
26. Allison, J & Wrightsman, L, Rape: the Misunderstood Crime (Newbury Park: Sage, 1993), 162 (referring to McCahill , TW, et al, The Aftermath of Rape (Lexington: Lexington, 1979)). [return to text]
27. Allison, J & Wrightsman, L, Rape: the Misunderstood Crime (Newbury Park: Sage, 1993), 165 (referring to McCahill , TW, et al, The Aftermath of Rape (Lexington: Lexington, 1979)). [return to text]
28. Allison, J & Wrightsman, L, Rape: the Misunderstood Crime (Newbury Park: Sage, 1993), 165 (referring to McCahill , TW, et al, The Aftermath of Rape (Lexington: Lexington, 1979)). [return to text]
29. Allison, J & Wrightsman, L, Rape: the Misunderstood Crime (Newbury Park: Sage, 1993), 165 (referring to McCahill , TW, et al, The Aftermath of Rape (Lexington: Lexington, 1979)). [return to text]
30. Allison, J & Wrightsman, L, Rape: the Misunderstood Crime (Newbury Park: Sage, 1993), 165 (referring to McCahill , TW, et al, The Aftermath of Rape (Lexington: Lexington, 1979)). [return to text]
31. Allison, J & Wrightsman, L, Rape: the Misunderstood Crime (Newbury Park: Sage, 1993), 165-166 (referring to Katz, BL, "The Psychological Impact of Stranger versus Non-Stranger Rape on the Victim's Recovery," in Parrot, A & Bechhofer, L (eds), Acquaintance Rape: the Hidden Crime (New York: John Wiley, 1991), 251-269.) However, other studies consider the level of trauma involved in stranger versus non-stranger sexual assault to be about equal. Id, 166 (referring to Frank, E, et al, "Initial Response to Rape: The impact of Factors Within the Rape Situation" 2 Journal of Behavioural Assessment 39-53.) [return to text]
32. Allison, J & Wrightsman, L, Rape: the Misunderstood Crime (Newbury Park: Sage, 1993), 168 (referring to Gidycz, CA, & Koss, MP, "The Effects of Acquaintance Rape on the Female Victim," in Parrot, A & Bechhofer, L (eds), Acquaintance Rape: the Hidden Crime (New York: John Wiley, 1991), 270-283.) [return to text]
33. Allison, J & Wrightsman, L, Rape: the Misunderstood Crime (Newbury Park: Sage, 1993), 168 (referring to Gidycz, CA, & Koss, MP, "The Effects of Acquaintance Rape on the Female Victim," in Parrot, A & Bechhofer, L (eds), Acquaintance Rape: the Hidden Crime (New York: John Wiley, 1991), 270-283.) [return to text]
34. Koss et al, "Stranger and Acquaintance Rape: Are there differences in the victim's experience?" (1988) 12 Psychology of Women Quarterly 1, 21-22. [return to text]
35. Koss et al, "Stranger and Acquaintance Rape: Are there differences in the victim's experience?" (1988) 12 Psychology of Women Quarterly at 12, 16-17. Thirty-eight percent of the victims of stranger assaults, 24% of the victims of assaults while on casual dates or by steady partners, and 43% of the victims assaulted by spouses or family had suicidal thoughts as a result of the attack. [return to text]
36. Victorian Community Council Again Violence, The Profile of Rapes Reported to Police in Victoria 1987 to 1990 (City: Publisher, 1991), 78. The statistic is identical in Western Australia. Crime Research Center, Report to the Minister of Community Development, Estimating the Incidence & Prevalence of Domestic Violence in WA (City: Publisher, April 1995), 17. [return to text]
37. Allison, J & Wrightsman, L, Rape: the Misunderstood Crime (Newbury Park: Sage, 1993), 117-18. [return to text]
38. Allison, J & Wrightsman, L, Rape: the Misunderstood Crime (Newbury Park: Sage, 1993), 117-18. [return to text]
39. Allison, J & Wrightsman, L, Rape: the Misunderstood Crime (Newbury Park: Sage, 1993), 117, 118. [return to text]
40. Allison, J & Wrightsman, L, Rape: the Misunderstood Crime (Newbury Park: Sage, 1993), 118. [return to text]
41. Allison, J & Wrightsman, L, Rape: the Misunderstood Crime (Newbury Park: Sage, 1993), 118. See also Bohmer, C, "Judicial Attitudes Toward Rape Victims" in Chappell, Duncan et al. (eds), Forcible Rape: the Crime, the Victim, and the Offender (N ew York: Columbia University Press, 1977), 162, 164-65. [return to text]
42. Allison, J & Wrightsman, L, Rape: the Misunderstood Crime (Newbury Park: Sage, 1993), 125. [return to text]
43. Allison, J & Wrightsman, L, Rape: the Misunderstood Crime (Newbury Park: Sage, 1993), 125. [return to text]
44. Allison, J & Wrightsman, L, Rape: the Misunderstood Crime (Newbury Park: Sage, 1993), 125. [return to text]
45. It is not evident where digital and oral penetration fall on the continuum. [return to text]
46. Allison, J & Wrightsman, L, Rape: the Misunderstood Crime (Newbury Park: Sage, 1993), 20-45. [return to text]
47. Allison, J & Wrightsman, L, Rape: the Misunderstood Crime (Newbury Park: Sage, 1993), 34. [return to text]
48. Allison, J & Wrightsman, L, Rape: the Misunderstood Crime (Newbury Park: Sage, 1993), 36 (referring to Symons, D, The Evolution of Human Sexuality (New York: Oxford University Press, 1979)). [return to text]
49. Allison, J & Wrightsman, L, Rape: the Misunderstood Crime (Newbury Park: Sage, 1993), 36 (referring to Symons, D, The Evolution of Human Sexuality (New York: Oxford University Press, 1979)). [return to text]
50. Allison, J & Wrightsman, L, Rape: the Misunderstood Crime (Newbury Park: Sage, 1993), 36-37. [return to text]
51. Allison, J & Wrightsman, L, Rape: the Misunderstood Crime (Newbury Park: Sage, 1993), 37. [return to text]
52. Allison, J & Wrightsman, L, Rape: the Misunderstood Crime (Newbury Park: Sage, 1993), 54-59 (referring to Groth, A. Nicholas & Birnbaum, H. Jean, Men Who Rape (New York: Plenum Press, 1979)). [return to text]
53. Allison, J & Wrightsman, L, Rape: the Misunderstood Crime (Newbury Park: Sage, 1993), 54-59 (referring to Groth, A. Nicholas & Birnbaum, H. Jean, Men Who Rape (New York: Plenum Press, 1979)). [return to text]
54. Allison, J & Wrightsman, L, Rape: the Misunderstood Crime (Newbury Park: Sage, 1993), 55 (referring to Groth, A. Nicholas & Birnbaum, H. Jean, Men Who Rape (New York: Plenum Press, 1979)). [return to text]
55. Allison, J & Wrightsman, L, Rape: the Misunderstood Crime (Newbury Park: Sage, 1993), 55 (referring to Groth, A. Nicholas & Birnbaum, H. Jean, Men Who Rape (New York: Plenum Press, 1979)). [return to text]
56. Allison, J & Wrightsman, L, Rape: the Misunderstood Crime (Newbury Park: Sage, 1993), 55 (referring to Groth, A. Nicholas & Birnbaum, H. Jean, Men Who Rape (New York: Plenum Press, 1979)). [return to text]
57. Allison, J & Wrightsman, L, Rape: the Misunderstood Crime (Newbury Park: Sage, 1993), 55 (referring to Groth, A. Nicholas & Birnbaum, H. Jean, Men Who Rape (New York: Plenum Press, 1979)). [return to text]
58. Allison, J & Wrightsman, L, Rape: the Misunderstood Crime (Newbury Park: Sage, 1993), 55 (referring to Groth, A. Nicholas & Birnbaum, H. Jean, Men Who Rape (New York: Plenum Press, 1979)). As stated by one offender in the Groth study: "I wanted to knock the woman off her pedestal, and I felt the rape was the worst thing I could do to her." ). Allison, J & Wrightsman, L, Rape: the Misunderstood Crime (Newbury Park: Sage, 1993), 55 (referring to Groth, A. Nicholas & Birnbaum, H. Jean, Men Who Rape (New York: Plenum Press, 1979)). [return to text]
59. Allison, J & Wrightsman, L, Rape: the Misunderstood Crime (Newbury Park: Sage, 1993), 55 (referring to Groth, A. Nicholas & Birnbaum, H. Jean, Men Who Rape (New York: Plenum Press, 1979)). [return to text]
60. Allison, J & Wrightsman, L, Rape: the Misunderstood Crime (Newbury Park: Sage, 1993), 56 (referring to Groth, A. Nicholas & Birnbaum, H. Jean, Men Who Rape (New York: Plenum Press, 1979)). [return to text]
61. Allison, J & Wrightsman, L, Rape: the Misunderstood Crime (Newbury Park: Sage, 1993), 56 (referring to Groth, A. Nicholas & Birnbaum, H. Jean, Men Who Rape (New York: Plenum Press, 1979)). [return to text]
62. Allison, J & Wrightsman, L, Rape: the Misunderstood Crime (Newbury Park: Sage, 1993), 56 (referring to Groth, A. Nicholas & Birnbaum, H. Jean, Men Who Rape (New York: Plenum Press, 1979)). [return to text]
63. Allison, J & Wrightsman, L, Rape: the Misunderstood Crime (Newbury Park: Sage, 1993), 56 (referring to Groth, A. Nicholas & Birnbaum, H. Jean, Men Who Rape (New York: Plenum Press, 1979)). [return to text]
64. Allison, J & Wrightsman, L, Rape: the Misunderstood Crime (Newbury Park: Sage, 1993), 56 (referring to Groth, A. Nicholas & Birnbaum, H. Jean, Men Who Rape (New York: Plenum Press, 1979)). [return to text]
65. Allison, J & Wrightsman, L, Rape: the Misunderstood Crime (Newbury Park: Sage, 1993), 57 (referring to Groth, A. Nicholas & Birnbaum, H. Jean, Men Who Rape (New York: Plenum Press, 1979)). [return to text]
66. Allison, J & Wrightsman, L, Rape: the Misunderstood Crime (Newbury Park: Sage, 1993), 56 (referring to Groth, A. Nicholas & Birnbaum, H. Jean, Men Who Rape (New York: Plenum Press, 1979)). [return to text]
67. Criminal Code s 17A. [return to text]
68. The CCA has held that the provisions of section 17A do not apply to offences committed prior to this date. Holyoak v the Queen, WA Court of Criminal Appeals, unreported, 7 September 1995, SCLN 95XXXX at 31-33 (per Malcolm, CJ). Accordingly, the CCA has considered very few cases to date under the standards imposed by section 17A. [return to text]
69. Criminal Law Amendment Act 1994 ss 4 & 5. [return to text]
70. Criminal Code s 19A (repealed). [return to text]
71. (1985) 14 A Crim R 364. [return to text]
72. Holyoak v the Queen, WA Court of Criminal Appeals, unreported, 7 September 1995, SCLN 95XXXX. [return to text]
73. Set out in Appendix 1 is a complete list of the maximum penalties for each of the sexual offences set out in Chapter XXXI. [return to text]
74. Criminal Code s 320(2). [return to text]
75. Criminal Code s 321(2) & (7)(b). [return to text]
76. Criminal Code s 329(2) & (9)(a). [return to text]
77. Criminal Code s 330(2) & (7)(b). [return to text]
78. Criminal Code s 326. [return to text]
79. Criminal Code s 321(2) & (7)(a). [return to text]
80. Criminal Code s 330(2) & (7)(a). [return to text]
81. Criminal Code s 325. [return to text]
82. Criminal Code s 320(4). [return to text]
83. Criminal Code s 321(4) & (8)(b). [return to text]
84. Criminal Code s 322(2). [return to text]
85. Criminal Code s 329(2) & (9)(b). [return to text]
86. Criminal Code s 330(4) & (8)(b). [return to text]
87. Criminal Code s 321(2) & (7)(c). [return to text]
88. Criminal Code s 321(4) & 8(a). [return to text]
89. Criminal Code s 330(4) & (8)(a). [return to text]
90. Criminal Code s 324. [return to text]
91. Criminal Code s 329(4) & (10)(b). [return to text]
92. Criminal Code s 322(4). [return to text]
93. Criminal Code s 322A(2). [return to text]
94. Criminal Code s 323. [return to text]
95. Criminal Code s 321(4) & 8(c). [return to text]
96. Criminal Code s 322A(3). [return to text]
97. Criminal Code s 321(6) & 8(c). [return to text]
98. The term "minor" is Ms Edwardes' characterisation. Western Australia Parliament Parliamentary Debates (Hansard) Vol 19, 1995, 10295 (2 November 1995). [return to text]
99. Western Australia Parliament Parliamentary Debates (Hansard) Vol 19, 1995, 10295 (2 November 1995). [return to text]
100. Western Australia. A-G Peter Foss Media Statement (28 March 1996). [return to text]
101. Criminal Code s 1. [return to text]
102. Criminal Code s 673. [return to text]
103. Criminal Law Amendment Bill 1995 (WA) ["Amendment Bill"] s 17. [return to text]
104. Amendment Bill s 17. [return to text]
105. Amendment Bill s 19(a). [return to text]
106. Amendment Bill s 19(b). [return to text]
107. Amendment Bill s 20. [return to text]
108. Amendment Bill s 21. [return to text]
109. Bensegger [1979] WAR 65 at 68 (per Burt CJ). [return to text]
110. Powell, WA Court of Criminal Appeals, unreported, 21 June 1991, SCLN 8928, at 8-9. [return to text]
111. The facts which comprise the circumstances of the commission of the offence are in addition to those factors which go to defining the offence itself. For example, the maximum penalty for aggravated sexual penetration under section 326 of the Code is considerably longer than the maximum penalty for sexual penetration pursuant to section 325. Such differences would be expected to be reflected in the sentences. In this section I consider as "the circumstances of the commission of the offence" only those factors which do not also comprise an element of the offence itself. [return to text]
112. This review of WA sentencing decisions does not purport to be a complete review of all such decisions. I have limited the parameters of my search in the following ways. First, I have focused my search on cases relating to sexual assaults against adults rather than children. The Code includes as an element of the offences against children many of the factors which normally go to the circumstances of the commission of the offence, including age of the victim, relationship between the victim and the offender, age of the offender, and the nature of the attack. The number of variations on the offence itself has made a comprehensive analysis of these cases beyond the scope of this article. Second, I have not attempted to consider every sentencing decision in relation to sexual offences against adults. I have limited my search to cases which have been reviewed by the CCA and reported in the WA Reports, the Australian Criminal Reports, and limited unreported judgments. Although there are undoubtedly some relevant sentencing decisions which I have not considered, my search has provided me with a large enough group from which to draw my conclusions. A summary of the sentencing decisions relied on is set out at Appendix 2. [return to text]
113. (1987) 23 A Crim R 1. [return to text]
114. Ginder, 23 A Crim R at 4 (per Burt CJ). [return to text]
115. Podirsky (1989) 43 A Crim R 404. [return to text]
116. Podirsky 43 A Crim R at 411. [return to text]
117. R v Pinder (1992) 8 WAR 19 at 38; Britten v The Queen, WA Court of Criminal Appeals, unreported, 21 February 1994, SCLN 940079; Azaddin v The Queen, WA Court of Criminal Appeals, unreported, 28 January 1994, SCLN 940030, at 6 (per Ipp J). [return to text]
118. Pinder, (1992) 8 WAR at 38 (per Murray J). [return to text]
119. See table of cases and sentences set out in Appendix 2. [return to text]
120. It is not unheard of for sexual offences to be sentenced outside the range of the informal tariff, and the court will not invalidate such sentences merely because they are longer than the usual sentence imposed for that type of offence. In Bridgman v The Queen, WA Court of Criminal Appeals, unreported, 12 February 1991, SCLN 8712, the CCA upheld a sentence of 16 years for the offence of aggravated sexual assault. The defendant appealed this sentence in part on the grounds that it was "unreasonably long" because it was longer than the usual sentence imposed for that type of offence. The court dismissed the appeal, commenting that although a sentence of 16 years is a high sentence for aggravated sexual assault, for which the maximum is 20 years, there were a number of circumstances of aggravation including, in particular, the threats made by the applicant, the violence which he used and the indignities to which he subjected his victim. There was little to be said in favour of mitigation, and the applicant had a serious past record. On this basis the CCA upheld the sentence of 16 years. (It is interesting to note that several other assaults which appear to be equally heinous resulted in significantly shorter sentences than Bridgman. For example, in Britten v The Queen, WA Court of Criminal Appeals, unreported, 21 February 1994, SCLN 940079, the offender was sentenced to 8 1/2 years for penile penetration with aggravating circumstances. The offender had abducted his victim in an East Perth car park, stolen all of her money, and required her to drive her car to an isolated area where he threatened her with a knife and committed one act of digital penetration and one act of penile penetration before leaving her in the bush without her clothing. Similarly, in Clinch v The Queen, (1994) 72 A Crim R 301, the defendant was sentenced to 14 years in respect of 18 serious offences committed on the same day which included assaults, burglaries, deprivations of liberty, and 5 counts of aggravated sexual assaults upon a 57 year old woman at knife point while her husband was tied up nearby.) [return to text]
121. Further amendments in 1992 renumbered the various definitions of sexual assault as follows: section 324B became section 323, section 324C became section 324, section 324D became section 325 and section 324E became section 326. There were a number of other changes imposed by the 1992 amendments, including changes to whether the offence was defined as a crime and the maximum punishment imposed, however, the elements remained pari materia. [return to text]
122. Ginder, 23 A Crim R at 5-7. [return to text]
123. Ginder, 23 A Crim R at 5, 6. [return to text]
124. Ibbs v The Queen [1988] WAR 91 at 95. [return to text]
125. Ibbs [1987] 163 CLR 447 at 451. [return to text]
126. Ibbs [1987] 163 CLR 447 at 451-452. [return to text]
127. R v Pinder (1992) 8 WAR 19; Hall, WA Court of Criminal Appeals, unreported, 10 February 1993, SCLN 930135. [return to text]
128. In Britten v The Queen, WA Court of Criminal Appeals, unreported, 21 February 1994, SCLN 940079, the offender was sentenced to 8½ years for the count of penile penetration but only 3 years for the count of digital penetration. In Stanton v The Queen WA Court of Criminal Appeals, unreported, 28 May 1992, SCLN 920298, the offender was sentenced to 6.5 years for two counts of oral penetration, 5.5 years for one count of digital penetration, and 5 years for each of two counts of attempted penile penetration. In Walley v The Queen, WA Court of Criminal Appeals, unreported, 30 May 1991 , SCLN 8894, the offender was sentenced to 3 years for one count of digital s exual penetration. In R v Pinder, (1992) 8 WAR 19, a case which both the sentencing judge and Murray J considered "very serious in the eyes of the law", the offender was sentenced to 18 months imprisonment for one count of attempted digital sexual penetration without consent (the court using 3 years as the tariff for a completed offence). [return to text]
129. In Azaddin, WA Court of Criminal Appeals, unreported, 28 January 1994, SCLN 940030, the offender's sentence was reduced from 12 years to 8 years for a number of offences including one count of aggravated digital penetration where the offender broke into the victim's home, bashed her, and sexually penetrated her in the presence of her two small children in a premeditated attack which was of 3 hours duration. In R v Deakin, WA Court of Criminal Appeals, unreported, 14 February 1990, SCLN 8064, the offender's sentence was increased from 5 years 10 months to 7 years 10 months imprisonment for aggravated digital penetration in a particularly brutal attack where he threatened to kill the victim, and he had previous convictions for sexual assaults. [return to text]
130. Lawson, WA Court of Criminal Appeals, unreported, 24 August 1994, SCLN 940439. The offender was sentenced to 7 years imprisonment (concurrent) for each of the following acts of penetration: cunnilingus (2 counts), penile, and oral penetration. [return to text]
131. Williams, WA Court of Criminal Appeals, unreported, 5 May 1993, SCLN 930255. [return to text]
132. Lindsay, WA Court of Criminal Appeals, unreported, 25 March 1993, SCLN 930152. [return to text]
133. Wilson, WA Court of Criminal Appeals, unreported, 10 March 1995, SCLN 95XXXX, Franklyn J at 7. [return to text]
134. Such as, in this case, where the offender perpetrated and act of anal penetration after already completing an act of vaginal penetration with the penis. Wilson, WA Court of Criminal Appeals, unreported, 10 March 1995, SCLN 95XXXX. [return to text]
135. Wilson, WA Court of Criminal Appeals, unreported, 10 March 1995, SCLN 95XXXX, at 7 (per Franklyn J). [return to text]
136. Wilson, WA Court of Criminal Appeals, unreported, 10 March 1995, SCLN 95XXXX, at 7 (per Franklyn J). [return to text]
137. Zapata, WA Court of Criminal Appeals, unreported, 22 February 1988, SCLN 7445. [return to text]
138. Criminal Code s 17B. [return to text]
139. Criminal Code s 319(1). [return to text]
140. Keating (1992) 65 A Crim R 315; Lindsay, WA Court of Criminal Appeals, unreported, 25 March 1993, SCLN 930152; Trow, WA Court of Criminal Appeals, unreported, 22 December 1988, SCLN 7444; Wilson, WA Court of Criminal Appeals, unreported, 10 March 1995, SCLN 95XXXX; Britten v The Queen, WA Court of Criminal Appeals, unreported, 21 February 1994, SCLN 940079; Azaddin, WA Court of Criminal Appeals, unreported, 28 January 1994, SCLN 940030; MacFarlane, WA Court of Criminal Appeals, unreported, 16 September 1994, SCLN 940507. [return to text]
141. Keating (1992) 65 A Crim R 315; Clinch (1994) 72 A Crim R 301; Shaw, WA Court of Criminal Appeals, unreported, 24 April 1989, SCLN 7621; Trow, WA Court of Criminal Appeals, unreported, 22 December 1988, SCLN 7444; Wignell, WA Court of Criminal Appeals, unreported, 4 December 1992, SCLN 920668; Lawson, WA Court of Criminal Appeals, unreported, 24 August 1994, SCLN 949439; MacFarlane, WA Court of Criminal Appeals, unreported, 16 September 1994, SCLN 940507; Walley, WA Court of Criminal Appeals, unreported, 30 May 1991, SCLN 8894; Pinder (1992) 8 WAR 19; Podirsky (1989) 43 A Crim R 405. [return to text]
142. Dann, WA Court of Criminal Appeals, unreported, 13 September 1995, SCLN 95XXXX; Wilson, WA Court of Criminal Appeals, unreported, 10 March 1995, SCLN 95XXXX. [return to text]
143. Hall, WA Court of Criminal Appeals, unreported, 10 February 1993, SCLN 930135. [return to text]
144. Lambley (1989) 40 A Crim R 430; Hardes, WA Court of Criminal Appeals, unreported, 18 October 1988, SCLN 7321; Lindsay, WA Court of Criminal Appeals, unreported, 25 March 1993, SCLN 930152; Trow, WA Court of Criminal Appeals, unreported, 22 December 1988, SCLN 7444; Yarran, WA Court of Criminal Appeals, unreported, 6 March 1991, SCLN 8762; Azaddin, WA Court of Criminal Appeals, unreported, 28 January 1994, SCLN 940030; Stanton v The Queen, WA Court of Criminal Appeals, unreported, 28 May 1992, SCLN 920298; Bridgman v The Queen, WA Court of Criminal Appeals, unreported, 12 February 1991, SCLN 8712. [return to text]
145. Pinder (1992) 8 WAR 19; Podirsky (1989) 43 A Crim R 405; Lambley (1989) 40 A Crim R 430, Sgroi (1989) 40 A Crim R 197; Lam, WA Court of Criminal Appeals, unreported, 14 August 1992, SCLN 920440; Trow, WA Court of Criminal Appeals, unreported, 22 December 1988, SCLN 7444; Williams, WA Court of Criminal Appeals, unreported, 5 May 1993, SCLN 930255; Yarran, WA Court of Criminal Appeals, unreported, 6 March 1991, SCLN 8762; Zapata, WA Court of Criminal Appeals, unreported, 22 February 1988, SCLN 7445; Steels, WA Court of Criminal Appeals, unreported, 27 May 1993, SCLN 930306; Walley, WA Court of Criminal Appeals, unreported, 30 May 1991, SCLN 8894. [return to text]
146. Britten v the Queen, WA Court of Criminal Appeals, unreported, 21 February 1994, SCLN 940079 (where the CCA emphasised that the victim was "a complete stranger to you and going about her own business"; Dann, WA Court of Criminal Appeals, unreported, 13 September 1995, SCLN 95XXXX (where Franklyn J emphasised that the victim's fear of contracting AIDS was "aggravated when the sexual act has been committed by a person to all intents and purposes a stranger to the victim"). [return to text]
147. Riley, WA Court of Criminal Appeals, unreported, 10 July 1990, SCLN 8360; Azaddin, WA Court of Criminal Appeals, unreported, 28 January 1994, SCLN 940030; Hall, WA Court of Criminal Appeals, unreported, 2 April 1990, SCLN 8189; MacFarlane, WA Court of Criminal Appeals, unreported, 16 September 1994, SCLN 940507. [return to text]
148. Davis & Dinah (1989) 44 A Crim R 113; Podirsky (1989) 43 A Crim R 405; [return to text]
149. Lindsay, WA Court of Criminal Appeals, unreported, 25 March 1993, SCLN 930152; Trow, WA Court of Criminal Appeals, unreported, 22 December 1988, SCLN 7444. [return to text]
150. Criminal Code s 17C. [return to text]
151. Davis & Dinah (1989) 44 A Crim R 113; Lambley (1989) 40 A Crim R 430; . [return to text]
152. Leering, WA Court of Criminal Appeals, unreported, 21 December 1990, SCLN 8664.4; Juli (1990) 50 A Crim R 31; Clinch (1994) 72 A Crim R 301. [return to text]
153. Leering, WA Court of Criminal Appeals, unreported, 21 December 1990, SCLN 8664.4; Juli (1990) 50 A Crim R 31, where the Chief Justice stated that while drunkenness is not normally an excuse or mitigating factor, "In the particular circumstances of this case, the applicant's abuse of alcohol reflects the socio-economic circumstances and the environment in which he has grown up and should be taken into account as a mitigating factor" (Per Malcolm CJ at 36.). [return to text]
154. Sgroi (1989) 40 A Crim R 197; Wilkinson, WA Court of Criminal Appeals, unreported, 12 March 1990, SCLN 8143; Hall, WA Court of Criminal Appeals, unreported, 10 February 1993, SCLN 930135; ; MacFarlane, WA Court of Criminal Appeals, unreported, 16 September 1994, SCLN 940507; Archibald (1989) 40 A Crim R 228. [return to text]
155. (1995) 81 A Crim R 88 (where sentence for husband's violent sexual assault on wife was reduced from 3 years to probation as a result of wife's pleas that husband's imprisonment would cause financial hardship on her and her children); ; Wilson, WA Court of Criminal Appeals, unreported, 26 May1995, SCLN 95XXXX (where offender sentenced to non-custodial sentence for indecent dealing with his young daughter because he had successfully undergone treatment and his family considered it to be in the best interests for the family to have him at home). [return to text]
156. Sgroi (1989) 40 A Crim R 197. [return to text]
157. Burns , WA Court of Criminal Appeals, unreported, 5 April 1991, SCLN 8799. [return to text]
158. Zapata, WA Court of Criminal Appeals, unreported, 22 February 1988, SCLN 7445. [return to text]
159. Burns , WA Court of Criminal Appeals, unreported, 5 April 1991, SCLN 8799: "Whether sexual penetration without consent] takes place within or without a matrimonial relationship, it is an extremely serious offence" (per Rowland J). However, the penalties awarded for intra-marital sexual assaults are often well below the "tariff": Tumbler (1994) 76 A Crim R 302 at 312-313 (12 months); Charles (1994) 76 A Crim R 302 at 313-14 (18 months for sexual penetration and unlawful wounding); H (1995) 81 A Crim R 88 (3 years, reduce to probation on request of the victim). [return to text]
160. The maximum penalty for sexual penetration and behaviour against children under 13 is 20 years imprisonment (s 320(2) & (3)). The maximum penalty for indecency offences against children under 13 is 10 years imprisonment (s320(4), (5), & (6)). Where the victim is over 13 and under 16, the penalty for sexual penetration and behaviour reduces to 14 years (s321(2), (3) & (7)&(a)). [return to text]
161. Allison, J & Wrightsman, L, Rape: the Misunderstood Crime (Newbury Park: Sage, 1993), 162. [return to text]
162. Sexual penetration and behaviour against a person who the offender knows or ought to know is an incapable persons carries a maximum penalty of 14 years imprisonment (s 330(2), (3) & (7)(a). That penalty increases to 20 years where the offender is in a position of authority or care over the victim (s 330(2),(3), & (7)(b)). For acts of indecency, the penalty is 7 years (s 330(4),(5), (6) & (8)(a)), and 10 years where the offender is in a position of authority or care over the victim (s 330(4),(5), (6) & (8)(b)). [return to text]
163. The exception to these statements is in relation to section 322A of the Code. Section 322A proscribes consensual homosexual acts involving males of or above age 16 and under 21. In no other provision does Chapter XXXI proscribe sexual relations involving persons age 16 or above unless one party is in a position of authority over the victim or related to the victim. Further, there is no equivalent proscription of consensual female homosexual relations involving a person between the ages of 16 and 21. On this basis I question the logic and validity of both the offence itself. The maximum penalty provide by the Code, 5 years for sexual penetration and 4 years for indecent dealing, appears to bear no relationship to any legitimate factor, offence seriousness in particular. [return to text]
164. Criminal Code ss 321 & 322. [return to text]
165. Criminal Code s 329. [return to text]
166. Criminal Code s 323-328. [return to text]
167. See, above, part II(B)(2). [return to text]
168. Discussed in part III, above. [return to text]
169. Ginder (1987) 23 A Crim R 1 at 5-6 (per Pidgeon J). [return to text]
170. Davis & Dinah (1989) 44 A Crim R 113; O'Connor WA Court of Criminal Appeals, unreported, 9 May 1989, SCLN 7652; Pike, WA Court of Criminal Appeals, unreported, 9 May 1989, SCLN 7650. [return to text]
171. Magrath, S & Brown P (eds), Australian Sentencing Decisions 1991-94 (Sydney: Butterworths) 1995, 321-328. The cases cited are: Bridgman v The Queen, WA Court of Criminal Appeals, unreported, 12 February 1991, SCLN 8712 (16 years); and McCormick, WA Court of Criminal Appeals, unreported, 4 February 1992, SCLN 920063 (18 years). [return to text]
172. Rose, R, "Judges soft on crime, says Wiese", The West Australian 20 March 1996, 7. [return to text]
173. I accept that this is not necessarily the fault of the CCA. In Ginder it tried to implement Parliament's policy of treating all sexual offences harshly by considering the nature of the penetration to be irrelevant except in light of whether it gave rise to circumstances of aggravation. The High Court rejected this view in Ibbs, and the CCA ceased any effort to consider the actual seriousness of these "lesser" forms of penetration. [return to text]
174. See, above, part II(B)(2). [return to text]
175. WA Court of Criminal Appeals, unreported, 21 December 1990, SCLN 8664.4. [return to text]
176. Leering, WA Court of Criminal Appeals, unreported, 21 December 1990, SCLN 8664.4, at 3 (per Malcolm CJ). I argue, however, that in Leering, the CCA demonstrated a willingness to ignore the crushing problem of violence against aboriginal women, while condoning the source of that violence. Leering makes a statement that the court is more concerned with protecting the individual liberty interests of sexual assailants than the physical integrity of women. [return to text]
177. For example, see Wilkinson, WA Court of Criminal Appeals, unreported, 12 March 1990, SCLN 8143. [return to text]
178. Pinder (1992) 8 WAR 19 at 40. [return to text]
179. Criminal Code s 320(2). [return to text]
180. Criminal Code s 320(3). [return to text]
181. Criminal Code s 321(2) & (7)(b). [return to text]
182. Criminal Code s 321(3) & (7)(b). [return to text]
183. Criminal Code s 321A(3). [return to text]
184. Criminal Code s 329(2) & (9)(a). [return to text]
185. Criminal Code s 329(3) &(9)(a). [return to text]
186. Criminal Code s 330(2) & (7)(b). [return to text]
187. Criminal Code s 330(3) & (7)(b). [return to text]
188. Criminal Code s 326. [return to text]
189. Criminal Code s 328. [return to text]
190. Criminal Code s 321(2) & (7)(a). [return to text]
191. Criminal Code s 321(3) & (7)(a). [return to text]
192. Criminal Code s 330(2) & (7)(a). [return to text]
193. Criminal Code s 330(3) & (7)(a). [return to text]
194. Criminal Code s 325. [return to text]
195. Criminal Code s 327. [return to text]
196. Criminal Code s 320(4). [return to text]
197. Criminal Code s 320(5). [return to text]
198. Criminal Code s 320(6). [return to text]
199. Criminal Code s 321(4) & (8)(b). [return to text]
200. Criminal Code s 321(5) & (8)(b). [return to text]
201. Criminal Code s 321(6) & (8)(b). [return to text]
202. Criminal Code s 322(2). [return to text]
203. Criminal Code s 322(3). [return to text]
204. Criminal Code s 329(2) & (9)(b). [return to text]
205. Criminal Code s 329(3) &(9)(b). [return to text]
206. Criminal Code s 329(4) & (10)(a). [return to text]
207. Criminal Code s 329(5) & (10)(a). [return to text]
208. Criminal Code s 329(6) & (10)(a). [return to text]
209. Criminal Code s 330(4) & (8)(b). [return to text]
210. Criminal Code s 330(5) & (8)(b). [return to text]
211. Criminal Code s 330(6) & (8)(b). [return to text]
212. Criminal Code s 321(2) & (7)(c). [return to text]
213. Criminal Code s 321(3) & (7)(c). [return to text]
214. Criminal Code s 321(4) & 8(a). [return to text]
215. Criminal Code s 321(5) & 8(a). [return to text]
216. Criminal Code s 321(6) & 8(a). [return to text]
217. Criminal Code s 330(4) & (8)(a). [return to text]
218. Criminal Code s 330(5) & (8)(a). [return to text]
219. Criminal Code s 330(6) & (8)(a). [return to text]
220. Criminal Code s 324. [return to text]
221. Criminal Code s 329(4) & (10)(b). [return to text]
222. Criminal Code s 329(5) & (10)(b). [return to text]
223. Criminal Code s 329(6) & (10)(b). [return to text]
224. Criminal Code s 322(4). [return to text]
225. Criminal Code s 322(5). [return to text]
226. Criminal Code s 322(6). [return to text]
227. Criminal Code s 322A(2). [return to text]
228. Criminal Code s 329(4) & (10)(b). [return to text]
229. Criminal Code s 329(5) & (10)(b). [return to text]
230. Criminal Code s 329(6) & (10)(b). [return to text]
231. Criminal Code s 323. [return to text]
232. Criminal Code s 321(4) & 8(c). [return to text]
233. Criminal Code s 321(5) & 8(c). [return to text]
234. Criminal Code s 321(6) & 8(c). [return to text]
235. Criminal Code s 322A(3). [return to text]
236. Criminal Code s 321(6) & 8(c). [return to text]
237. Criminal Code s 322A(3). [return to text]