WA v SJH

(2009) 200 A Crim R 228; [2010] WASCA 40

Western Australia Court of Appeal

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Interrogate

Catchwords

1. Criminal Law
2. › Sentencing
3. › Sexual offences against children
4. › Sexual penetration of child under 13
5. › Sexual penetration of child aged 13-16
6. › Suspension of term of imprisonment
7. › Whether suspension open where complainant initiated and consented to sexual activity
8. › Whether sentence manifestly inadequate
9. › Criminal Code (WA), ss 320(2), 320(4), 321(2), 321(4)
10. › Sentencing Act 1995 (WA), ss 76(1), 76(2)
1. Criminal Law
2. › Sentencing
3. › Sexual offences against children
4. › Legislative purpose of age of consent provisions
5. › Whether purpose confined to protection from sexual predators
6. › Whether purpose extends to protection of children from themselves
7. › Relevance of consent to sentencing
8. › Criminal Code (WA), ss 320, 321
1. Criminal Law
2. › Sentencing
3. › Suspension of imprisonment
4. › Factors relevant to suspension
5. › Whether immediate imprisonment the only appropriate sentencing option
6. › Sentencing Act 1995 (WA), ss 39(2), 39(3), 76(1), 76(2)
1. Criminal Law
2. › Sentencing
3. › Mental disorder or psychological condition
4. › Relevance to moral culpability
5. › Whether causal connection required between condition and offending
6. › Whether sentencing judge's findings of fact had evidentiary foundation

Quick Take

The primary legislative purpose of ss 320 and 321 of the Criminal Code (WA) is to protect children from sexual abuse, not merely from sexual activity as such; protection 'from themselves' is a subsidiary purpose. Knowledge of free and voluntary consent by the child, particularly where the child initiated the conduct, is mitigating for sentencing purposes. The frequently-cited proposition from Sweetlove that only in rare and exceptional circumstances should a non-custodial sentence be imposed for sexual penetration of a child is sometimes overstated and should not be applied mechanically. Suspension of imprisonment remains open in cases where the complainant initiated and willingly participated in sexual activity, there was no predatory or coercive conduct, and the offender has significant personal mitigating factors.