Church v WA

(2007) 117 A Crim R 23; [2007] WASCA 215

Western Australia Court of Appeal

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Interrogate

Catchwords

1. Criminal Law
2. › Sentencing
3. › Sexual offences against children
4. › Child aged 16-18 under authority of offender
5. › Single incident of digital penetration and indecent dealing
6. › Whether sentence of immediate imprisonment should have been suspended
7. › Criminal Code (WA), s 322(2), s 322(4)
8. › Sentencing Act 1995 (WA), ss 6(4), 39(2), 39(3)
1. Criminal Law
2. › Sentencing
3. › Mitigating factors
4. › Alleged fact in mitigation not proved by offender
5. › Onus on offender to prove mitigatory fact on balance of probabilities
6. › Whether sentencing judge erred in giving weight to unproved mitigating fact
1. Criminal Law
2. › Appeal
3. › Appeal against sentence
4. › Appellate review of sentencing discretion
5. › Whether sentence unreasonable or plainly unjust
6. › House v The King principles

Quick Take

For offences under s 322 of the Criminal Code (WA), the greater the position of authority, the more serious the offence. Relevant aggravating factors include use of force, persistence in the face of reluctance, and repetition. Mitigating factors include belief the child was over 18, the child's invitation of the conduct without pressure, closeness in age, and consent not procured by use of the position of authority. Where a mitigating fact is put in issue by the prosecution, the offender bears the onus of proving it on the balance of probabilities; a sentencing judge errs by giving any weight to an unproved mitigating fact.