Cj v WA

[2009] WASCA 42

Western Australia Court of Appeal

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Interrogate

Catchwords

1. Criminal Law
2. › Sentence
3. › Appeal against sentence
4. › Sexual offences against children
5. › Female offender taking part in acts of sexual penetration with male child over 13 and under 16
6. › Whether sentencing judge made errors of fact or law
7. › Whether position of trust existed
8. › Whether depression causative of offending
9. › Whether personal deterrence relevant where low risk of reoffending
10. › Whether immediate imprisonment or suspended sentence appropriate
11. › Criminal Code (WA), s 321(2)
1. Criminal Law
2. › Sentence
3. › Sentencing principles
4. › Equality of concern for male and female victims
5. › Equality in sentencing of male and female offenders
6. › Whether gender stereotyping permissible in sentencing
1. Criminal Law
2. › Sentence
3. › Suspended sentence of imprisonment
4. › Whether circumstances required immediate imprisonment or permitted suspension
5. › Sentencing Act 1995 (WA), ss 6(4), 39(3)
1. Criminal Law
2. › Sentence
3. › Mitigating factors
4. › Mental illness
5. › Depression
6. › Relevance to sentencing where causation not established
7. › Effect on personal and general deterrence

Quick Take

In the context of sexual offences, a 'position of trust' requires the offender to have authority, power or influence over the victim such as to better enable the commission of the offence; the mere fact that a child is staying at the offender's home to visit the offender's child does not establish a position of trust. Depression suffered by an offender is relevant to sentencing even where a causal connection to the offending is not established, particularly in reducing the weight to be given to personal and general deterrence. A violence restraining order under s 63A of the Restraining Orders Act 1997 (WA) can only be made for offences listed in s 63A(5) and does not extend to offences under s 321 of the Criminal Code (WA).