LJP v WA

[2010] WASCA 85

Western Australia Court of Appeal

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Interrogate

Catchwords

1. Criminal Law
2. › Sentencing
3. › Appeal by offender
4. › Sexual offences against children
5. › Indecent dealing with child under 13
6. › Sexual penetration of child under 13
7. › Whether individual sentence manifestly excessive
8. › Offending at lower end of spectrum of seriousness
9. › Criminal Code (WA), ss 320(2), 320(4)
1. Criminal Law
2. › Sentencing
3. › Suspended imprisonment
4. › Whether suspended imprisonment appropriate for sexual offences against children
5. › Exceptional circumstances
6. › Whether objective seriousness precluded suspension despite substantial mitigating factors
7. › Sentencing Act 1995 (WA), ss 6(4), 39(2), 39(3), 76
1. Criminal Law
2. › Sentencing
3. › Mitigating factors
4. › Voluntary disclosure of offences
5. › Disclosure of offences unknown to prosecuting authorities
6. › Additional element of leniency
7. › Degree of leniency varying with likelihood of discovery
1. Criminal Law
2. › Sentencing
3. › Express error by sentencing judge
4. › Finding as to impact on victim without adequate evidentiary basis
5. › Finding as to complainant's motivation to protect offender not reasonably open

Quick Take

A sentence of 18 months' imprisonment (reduced from 2 years 6 months) was appropriate for a single count of sexual penetration of a child under 13 at the lower end of the spectrum of seriousness, where the offender voluntarily disclosed the offence, completed a treatment programme, was at low risk of reoffending, and had no prior record. The majority held that the objective seriousness of multiple sexual offences against a child, including escalation to fellatio, precluded suspension of the sentence despite substantial mitigating factors. A sentencing judge's finding as to the impact of offending on a child victim must be supported by evidence and cannot be based on speculation from the child's reticence to discuss the offending.