Tapper v WA

[2016] WASCA 140

Western Australia Court of Appeal

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Catchwords

1. Criminal Law
2. › Appeal against sentence
3. › Manifest excess
4. › Sexual penetration of child aged 13-16
5. › Very late pleas of guilty
6. › Appellant wilfully blind as to child's age
7. › Significant age disparity as element of abuse
8. › Whether immediate imprisonment manifestly excessive
9. › Criminal Code (WA), s 321(2)
10. › Sentencing Act 1995 (WA), ss 6, 7, 8, 39, 76, 81
1. Criminal Law
2. › Sentencing
3. › Sexual offences against children
4. › Element of abuse
5. › Significant disparity in age
6. › Whether age difference of itself constitutes aggravating factor
7. › Criminal Code (WA), s 321(2)
1. Criminal Law
2. › Sentencing
3. › Suspension of imprisonment
4. › Whether terms of imprisonment should have been suspended
5. › Factors militating for and against suspension
6. › Sentencing Act 1995 (WA), ss 39, 76, 81

Quick Take

A 28-year age disparity between an offender and a child victim of sexual penetration under s 321(2) of the Criminal Code (WA) properly constitutes an 'element of abuse' and an aggravating factor, even where the child represented herself as being of legal age and the offender's culpability is characterised as wilful blindness rather than actual knowledge. Wilful blindness as to a child's age — meaning the offender believed there was a real risk the child was under 16 but deliberately refrained from requiring proof — is a significant factor militating against suspension of imprisonment.