Bennett v The State of Western Australia
[2025] WASCA 100
•30 JUNE 2025
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: BENNETT -v- THE STATE OF WESTERN AUSTRALIA [2025] WASCA 100
CORAM: MAZZA JA
VANDONGEN JA
DAVID AJA
HEARD: 16 SEPTEMBER 2024
DELIVERED : 30 JUNE 2025
FILE NO/S: CACR 141 of 2023
BETWEEN: ALI BENNETT
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram: MASSEY DCJ
File Number : IND 116 of 2023
Catchwords:
Criminal law - Appeal against sentence - Appellant convicted on pleas of guilty of two counts of sexual penetration without consent and one count of demanding property with threats with intent to extort or gain - Whether sentencing judge made express error finding offending was aggravated by threats of violence - Whether individual sentences manifestly excessive - Whether total effective sentence infringes first limb of totality principle
Legislation:
Criminal Code (WA), s 325(1), s 397(2)
Result:
Appeal allowed
Appellant resentenced
Category: B
Representation:
Counsel:
| Appellant | : | S H King |
| Respondent | : | G N Beggs |
Solicitors:
| Appellant | : | Legal Aid (WA) |
| Respondent | : | Director of Public Prosecutions (WA) |
Case(s) referred to in decision(s):
Kabambi v The State of Western Australia [2019] WASCA 44
McFarlane v The State of Western Australia [2024] WASCA 33
Musgrave v The State of Western Australia [2021] WASCA 67
Pool v The State of Western Australia [2013] WASCA 274
Singh v The State of Western Australia [2017] WASCA 47
Taylor v The State of Western Australia [2019] WASCA 217
The State of Western Australia v Akizuki [2008] WASCA 267; (2008) 192 A Crim R 373
The State of Western Australia v HNU [2023] WASCA 6
The State of Western Australia v Jacoby [2020] WASCA 150
The State of Western Australia v LSM [2023] WASCA 132
The State of Western Australia v Rayapen [2023] WASCA 55
The State of Western Australia v Vartolo [2015] WASCA 53
The State of Western Australia v Wynne [2024] WASCA 20
JUDGMENT OF THE COURT:
The appellant applies for an extension of time within which to appeal against sentence.
On 18 August 2023, the appellant was convicted on his pleas of guilty of two counts of sexual penetration without consent, contrary to s 325(1) of the Criminal Code (WA) (the Code) (counts 1 and 2), and one count of demanding property with threats with intent to extort or gain, contrary to s 397(2) of the Code (count 3). The maximum sentence for each of these offences is 14 years' imprisonment.
On 26 October 2023, the appellant was sentenced by Massey DCJ to 4 years 6 months' imprisonment on count 1; 6 years' imprisonment on count 2; and 2 years 6 months' imprisonment on count 3. His Honour ordered that the sentences on counts 2 and 3 be served cumulatively, and that the sentence on count 1 be served concurrently with the sentence on count 2. Thus, the total effective sentence was 8 years 6 months' imprisonment, backdated to commence on 13 July 2022, with parole eligibility.
The appellant wishes to rely on four grounds of appeal. Ground 1 alleges that the sentencing judge erred in characterising the offending in counts 1 and 2 as 'aggravated by virtue of threats of violence'. Ground 2 alleges that the sentence of 4 years 6 months' imprisonment on count 1 is manifestly excessive. Ground 3 alleges that the sentence of 6 years' imprisonment for count 2 is manifestly excessive. Ground 4 alleges that the total effective sentence of 8 years 6 months' imprisonment infringes the first limb of the totality principle. There is no challenge to the individual sentence on count 3.
The facts
On the afternoon of 14 December 2021, the appellant and another man attended a short-term rental apartment in the Perth CBD (the apartment), which was being occupied by Mr Y.[1] The appellant and the other man were at the apartment for a short period of time. They had a brief interaction with Mr Y before leaving together. It is accepted that the appellant and the other man had attended the apartment in relation to some form of drug-dealing activity.[2]
[1] Not his real initial.
[2] Appeal ts 14.
Later in the evening of that same day, at 9.13 pm, the appellant returned alone to the apartment complex. It is accepted that he returned to the apartment with the object of recovering a drug debt from Mr Y. The appellant was wearing a hat to disguise his identity as there were CCTV cameras outside the apartment. At 9.23 pm, the appellant knocked on the door of the apartment. Mr Y opened the door and the appellant entered. Once inside, the appellant spoke to Mr Y in an aggressive manner. The appellant directed Mr Y to kneel down and to face the wall in the corner of the living room. Mr Y felt threatened and did as the appellant demanded. Also in the apartment at the time was Ms H.[3]
[3] Not her real initial. Ms H had not been in the apartment when the appellant had attended it earlier that day.
During the interaction between the appellant and Mr Y, Ms H was sitting on a sofa in the same room. After directing Mr Y to kneel and face the wall, the appellant asked Ms H whether she was 'there of her own free will', to which she confirmed that she was. The appellant then asked Ms H if she and Mr Y had had sex, and she confirmed that they had. The appellant then told Mr Y that he was going to have sex with Ms H, and that Mr Y 'would not have a problem with it'.
As to count 1, the appellant approached Ms H and stood in front of her. He asked her if she was 'going to do this for [Mr Y]', and told her that she was a 'good girl'. The appellant then made her perform fellatio on him by grabbing her head and pushing her face towards his penis. Ms H did as she was told because she was afraid that, if she did not, the appellant would hurt either herself or Mr Y.
As to count 2, sometime after the appellant committed count 1, he directed Ms H to have a shower and to wash herself. He then told her to go into the bedroom and get on the bed on all fours. Ms H understood from this that the appellant intended to have sex with her. The appellant approached Ms H from behind and, whilst standing on the floor, penetrated her vagina with his penis, thrusting in and out. The appellant was not wearing a condom. The appellant continued for a 'few minutes', before ejaculating inside Ms H's vagina.
As to count 3, after the conduct that comprised count 2, the appellant demanded money from Mr Y, who was still kneeling and facing the wall. Mr Y texted a friend from Ms H's mobile telephone requesting $1,000. When this request was unsuccessful, Mr Y provided the appellant with the phone number of his father, Mr A.
The appellant called Mr A on speakerphone at around 10.20 pm. Initially, Mr Y spoke with his father and requested about $2,400 or $2,800 urgently to pay a drug debt. Mr A stated he did not have the money. The appellant then spoke with Mr A and demanded he go to an ATM, withdraw cash and bring the money to the apartment. Mr A told the appellant that he had been drinking and could not drive, and that he did not have the money. The appellant then demanded $1,000 and told Mr A that if he did not produce the money, the appellant would 'cut [Mr Y's] fingers off', put them in an envelope and deliver the envelope to Mr A's letter box.
The appellant asked Mr A what he was planning to do. Mr A replied that he was going to call the police, which he did.
At about 10.50 pm, the appellant left the apartment, taking Ms H's mobile telephone with him. Mr Y and Ms H left the apartment shortly after and reported the matter to the police. Ms H was medically examined. Subsequent analysis of samples taken from a high‑vaginal swab revealed DNA that matched the appellant's with a high degree of probability.
The appellant was arrested on 5 January 2022 and was interviewed by police on the same day. During the course of the interview, the appellant threw a cup of water into the face of an investigating police officer and was subsequently charged with an offence of assaulting a police officer. The police interviewed the appellant again on 9 May 2022, when the DNA results became available. The sentencing judge found that the appellant had told a series of lies in the course of this interview.
The appellant's personal circumstances
The appellant was 40 years old at the time of the offending and 42 years old at the time of sentencing.
The appellant comes from a large and loving family. His parents followed a strict Islamic faith and the appellant was raised in that tradition. He is married, and he and his wife have two children. The appellant is well educated and has completed Bachelors and Masters degrees in business administration. He has been variously but consistently employed. For the five years prior to the commission of the offences the appellant had been employed in the mining industry on a fly‑in/fly‑out (FIFO) basis.
While working on a FIFO basis, the appellant began experiencing problems in his marriage. In 2020, at the age of 39 years, he commenced using methylamphetamine. By the time the appellant committed the offences, he was, as the sentencing judge described, in the 'grips of a significant methylamphetamine addiction'.[4] His methylamphetamine use had a significantly adverse impact on his character.
[4] ts 32.
Prior to 2020, the appellant had been convicted of only minor traffic offences. However, beginning in 2021 the appellant's offending escalated in frequency and seriousness. In 2022, the appellant was convicted of assaulting a public officer, stealing a motor vehicle and possession of a controlled weapon. In respect of the last two offences, on 3 May 2022, he was sentenced to 6 months' imprisonment suspended for 12 months from 3 May 2022.
According to character references provided to the sentencing judge, the appellant is normally a hardworking, devoted family man, whose offending was completely out of character.
The sentencing judge had the benefit of a psychological report from a clinical and forensic psychologist, Ms Tanina Oliveri. In her opinion:[5]
The current offences appear to have occurred in the context of methamphetamine abuse; a desire to obtain methamphetamine and money; loss of positive direction; association with antisocial others; marriage problems; unmet sexual needs; sexual preoccupation and heightened sexual urges and arousal; anger and a desire for power and control; the use of threats and intimidation to have his needs met; and problems with decision making, impulse control, problem‑solving and consequential thinking. It is also highly likely that he was experiencing depression at the time due to his problems.
[5] Ms Oliveri's report, dated 25 September 2023, par 14.
In Ms Oliveri's opinion, the appellant's criminogenic treatment needs include his substance abuse issues, depression, impulse control and lack of consequential thinking.
As to his risk of reoffending, Ms Oliveri noted that the appellant had the continued support of his immediate family, accommodation with his parents and was keen to return to full‑time work.[6] She also noted that he was willing to comply with supervision and treatment requirements. Based on the information available to her, she assessed the appellant as being a moderate risk of further violence, but noted that the risk may be reduced if he addressed his criminogenic treatment needs.
[6] Ms Oliveri's report, dated 25 September 2023, par 17.
The sentencing remarks
The sentencing judge found the following aggravating factors:[7]
(1)The appellant was on bail at the time of the commission of the present offences.[8]
(2)The offences were accompanied by 'threats of violence' and 'intimidation'. His Honour specifically referred to threats made to Ms H and the fact that the appellant forced Ms H to perform fellatio on him and to have sex with him out of fear for herself and Mr Y. This finding is challenged by ground 1.
(3)The appellant did not wear a condom during the commission of count 2 and ejaculated into Ms H's vagina, thereby exposing her to risks of pregnancy and disease.
(4)The appellant had gone to the apartment with the intention of committing the extortion offence.
(5)As to count 2, there was an element of premeditation because the appellant had '[Ms H] go and shower before [he] had intercourse with her'.
(6)The offending was persistent, lasting from 9.23 pm to around 10.50 pm on 14 December 2021. The appellant subjected the victims to fear for around an hour and a half.
(7)The appellant involved a third party, namely Mr A, including by informing Mr A that if the money was not paid he would cut off Mr Y's fingers and put them in Mr A's letterbox.[9]
[7] ts 31 ‑ 32.
[8] The appellant was on bail for the offences referred to in [18] above and a charge of possession of stolen or unlawfully obtained property contrary to s 417(1) of the Code.
[9] During his video record of interview with the police, the appellant admitted to making this threat.
The sentencing judge considered both the sexual penetration offences and the extortion offence to be 'very serious examples' of their type. His Honour acknowledged that the appellant did not use weapons, or inflict actual violence or physical injuries upon the victims. He considered that the offences were not 'at the top end of the range of seriousness', but instead found that they were 'above mid‑range offending of the type in respect of each of the offences'.
The sentencing judge found the following mitigating factors:[10]
(1)The appellant pleaded guilty at a relatively early stage in the proceedings, before the matters were listed for trial, but after some negotiations with the prosecution. His Honour gave a 20% discount for the pleas of guilty pursuant to s 9AA of the Sentencing Act 1995 (WA).
(2)The appellant was remorseful and showed some insight into the impact of his offending on the victims. However, the sentencing judge was not satisfied that the appellant demonstrated deep remorse, partly due to the appellant's letter to the sentencing judge, which attempted to explain the offending as 'misreading cues'.
(3)The appellant was of previous good character up until 2020, when he began to use methylamphetamine.
(4)The appellant had taken independent steps towards his rehabilitation, including self‑referring to Mali Rehabilitation Centre and Narcotics Anonymous whilst in prison.
(5)The terms of imprisonment that were to be imposed would be the appellant's first terms of imprisonment and he had been remanded in custody for a long period awaiting sentence.
[10] ts 35 ‑ 36.
The sentencing judge observed that there were factors which indicated that the appellant was capable of rehabilitation and that his risk of reoffending was reduced.
His Honour correctly observed that the main sentencing considerations for offences of the type committed by the appellant were personal and general deterrence. His Honour found that there was a high need for general deterrence due to the fear and trepidation that offending of this type caused in the wider community. As for personal deterrence, his Honour considered that there was a moderate need for personal deterrence. He considered that the appellant's risk of reoffending was largely dependent on his ability to stop using methylamphetamine and illicit drugs. His Honour reiterated that the offences were serious examples of their type 'because of the threats and the intimidation and the duration of them as well'.[11]
[11] ts 39.
After imposing the individual terms of imprisonment referred to at [3] above, his Honour considered totality and determined that a total term of 8 years 6 months' imprisonment was appropriate in all the circumstances. His Honour achieved this by making the orders for concurrency and cumulacy, also set out at [3] above.
The grounds of appeal
The grounds of appeal are as follows:
1.The Learned Sentencing Judge erred in characterising the offending in Counts 1 and 2 as aggravated by virtue of threats of violence[.]
2.The sentence of 4 years and 6 months' imprisonment for count 1 is manifestly excessive in the light of the maximum penalty prescribed by law for the offence, the standard of sentencing customarily observed for that type of offence, the level of seriousness of the circumstances of the offending and the personal circumstances of the offender.
3.The sentence of 6 years' imprisonment for count 2 is manifestly excessive in the light of the maximum penalty prescribed for the offence, the standard of sentencing customarily observed for that type of offence, the level of seriousness of the offending and the personal circumstances of the offender.
4.The total effective sentence of 8 years and 6 months' imprisonment offends the totality principle in that the aggregate sentence does not bear a proper relationship to the overall criminality of the appellant's conduct, having regard to all relevant circumstances.
The appellant's submissions
In respect of ground 1, the appellant identified the alleged express error the subject of this ground as being the following statement in his Honour's sentencing remarks:[12]
There are also aggravating features in the sense that the threats of violence are clearly aggravating. You've [the appellant] threatened [Mr Y], you in effect forced [Ms H] to suck your penis and have sex with you, because of her fear, not only for herself but for the safety of [Mr Y].
So I think the threats of violence, the intimidation, those sorts of things are clearly aggravating.
[12] ts 31.
It was submitted that the statements quoted above referred to counts 1 and 2. It was submitted that, on the facts as found by the sentencing judge, there were no threats of violence that related to counts 1 and 2. Any threats of violence were made in connection with count 3, after the completion of counts 1 and 2. Accordingly, his Honour erred in finding that there were threats of violence in connection with counts 1 and 2.
As to grounds 2 and 3, the appellant submitted that the individual sentences that were imposed on counts 1 and 2 were inconsistent with the range of sentences customarily imposed for offences contrary to s 325(1) of the Code. Counsel for the appellant submitted that there had been no case decided in this court where a single offence of (non‑aggravated) sexual penetration without consent, after a plea of guilty, where a sentence of more than 4 years' imprisonment had been imposed.[13] Counsel for the appellant submitted that, on a broader analysis of the decided cases in respect of offences contrary to s 325(1) of the Code where a plea of guilty had been entered, the sentences imposed on counts 1 and 2 were erroneously long.[14]
[13] Appeal ts 11.
[14] Appeal ts 13.
As to ground 4, the appellant submitted that, even if the individual sentences on counts 1 and 2 were not manifestly excessive, the total effective sentence infringed the first limb of the totality principle. In this regard, the appellant submitted that even if the sentences on counts 1 and 2 stand, they are 'extremely long',[15] and moreover, the individual penalty for count 3 was not lenient and did not moderate the totality. In the end, it was submitted the total effective sentence of 8 years 6 months' imprisonment did not properly reflect the appellant's overall criminality, particularly as the appellant pleaded guilty at a relatively early stage in the proceedings.
[15] Appeal ts 13.
The respondent's submissions
On behalf of the respondent, it was submitted that his Honour did not make the express error alleged in ground 1. The respondent submitted that it was clear from the facts, as found by the sentencing judge, that the appellant's behaviour from his entry into the apartment was threatening and intimidating, and that Mr Y and Ms H felt threatened and intimidated by the appellant.
As to grounds 2 and 3, the respondent accepted that the individual sentences for counts 1 and 2 were high for a single offence against s 325(1) of the Code where the offender pleaded guilty. However, the respondent submitted that the seriousness of the offending warranted a departure from the standards of sentencing customarily imposed. It was also submitted that even if the individual sentences on counts 1 and 2 were manifestly excessive, this would not necessarily lead to the conclusion that the total effective sentence infringed the totality principle.[16]
[16] Appeal ts 18.
As to ground 4, the respondent submitted that, if grounds 2 and 3 were made out, having regard to the very serious nature of the overall offending and even having regard to the appellant's pleas of guilty, a total effective sentence of 8 years and 6 months' imprisonment would be an appropriate exercise of the sentencing discretion, and did not infringe the first limb of the totality principle.
Relevant general principles
Ground 1 alleges an express error by the sentencing judge. Grounds 2, 3 and 4 are allegations of implied error.
This court can only intervene if the appellant demonstrates either an express or implied error which is material. Express error involves acting on a wrong principle, or by mistaking the facts, or by taking into account an irrelevant matter, or by failing to take into account a material consideration. Implied error arises where the end result is so unreasonable or plainly unjust that the court must conclude that a substantial wrong has occurred.
The general principles governing allegations of implied error, that is, where an individual sentence is said to be manifestly excessive (or inadequate) or where a total effective sentence infringes the totality principle, were comprehensively and accurately explained in Kabambi v The State of Western Australia.[17] We adopt the statement of principles enunciated in that case without repeating it.
[17] Kabambi v The State of Western Australia [2019] WASCA 44 [21].
In Musgrave v The State of Western Australia,[18] Pritchard JA observed, in the context of an offence contrary to s 325(1) of the Code:
The criminality which is prohibited by the offence of sexual penetration without consent in s 325(1) of the Criminal Code is the exercise of dominion over another person by violating that person's bodily integrity - an integral aspect of their human dignity - by the penetration of a part of their body (or by the manipulation of a part of their body so as to penetrate a part of the offender's body) without their consent to that conduct. Conduct of that kind involves an abject disregard by the offender for the victim's dignity as a human being, and for their autonomy and bodily integrity. From that perspective, it is not surprising that s 325 of the Criminal Code does not draw a distinction between the kinds of penetration (defined in s 319(1)) which may constitute a contravention of the section.
[18] Musgrave v The State of Western Australia [2021] WASCA 67 [281] (Pritchard JA, Quinlan CJ agreeing at [1]).
It is well established that there is no tariff for offences of sexual penetration without consent, whether aggravated or not. As Steytler P observed in The State of Western Australia v Akizuki,[19] the circumstances of sexual offending and of sexual offenders are almost infinitely variable, such that the sentence imposed in one case can provide only limited guidance in other cases. This statement is reflected in the broad range of sentences customarily imposed in previous cases decided by this court. The seriousness of every case of unlawful sexual penetration must be determined by its own individual circumstances.
[19] The State of Western Australia v Akizuki [2008] WASCA 267; (2008) 192 A Crim R 373 [68].
It has been frequently observed that while there is no tariff for offences of sexual assault, a single count of non‑aggravated, penile penetration of the vagina can be expected to result in a term of immediate imprisonment, after trial, of around 5 or 6 years, subject to the relevant aggravating and mitigating circumstances. A sentence outside the range of 5 to 6 years' imprisonment for non‑aggravated sexual penetration will not necessarily be manifestly excessive or manifestly inadequate.[20]
[20] The State of Western Australia v LSM [2023] WASCA 132 [141] (Mazza JA).
The dominant sentencing considerations for sexual offences are punishment and general and specific deterrence. Circumstances personal to an offender are of comparatively less weight for offences of this type, although this does not mean that they are irrelevant.[21]
[21] The State of Western Australia v HNU [2023] WASCA 6 [64].
Ground 1 - disposition
Ground 1 is without merit.
Contrary to the submissions of the appellant, there was ample evidence of the appellant's threatening and intimidating behaviour in relation to counts 1 and 2, and, indeed, count 3. The appellant arrived at the apartment at approximately 9.13 pm on 14 December 2021 to collect a drug debt. From the moment of his entry into the apartment, he behaved in a manner which was threatening and intimidating. This behaviour caused Mr Y and Ms H to submit to his demands. The threatening nature of the appellant's behaviour was acknowledged by the appellant's defence counsel at sentencing, who, in the course of his plea in mitigation, said, 'When someone bursts in and threatens people, they are not in any position to give informed consent'. Defence counsel added, in the context of counts 1 and 2, '[I]t's only been slowly dawning on him [the appellant] how frightening he actually was, and how any person that was confronted with that in that situation wouldn't necessarily say "no", because they'd be just petrified and frozen solid, pretty much'.[22] Of course, count 2 was followed by the extortion offence, count 3, in which the appellant threatened to cut Mr Y's fingers off in the event Mr A failed to satisfy the appellant's demand for $1,000.
[22] ts 25 ‑ 26.
There is no merit in ground 1. It has no reasonable prospect of succeeding. The application for an extension of time within which to appeal based on that ground must be refused.
Grounds 2 and 3 - disposition
As mentioned, the maximum penalty provided for offences under s 325(1) of the Code is 14 years' imprisonment.
Count 1 involved an act of fellatio. Ms H acquiesced because she had seen, and was subject to, the appellant's intimidating and threatening behaviour, and because she was afraid that, if she did not submit, the appellant would hurt either her or Mr Y (or both of them). The offence was accompanied by an element of physical force. The appellant grabbed Ms H's head and pulled her face onto his penis.
While count 1 appears to have been opportunistic offending, the same cannot be said about count 2. Having regard to the appellant's order that Ms H shower before the commission of the offence, there was an element of premeditation. Again, Ms H acquiesced because of the appellant's intimidation and threats. The offence involved a forceful act of penile/vaginal penetration, to ejaculation, without the use of a condom, exposing Ms H to the risks of pregnancy and disease.
Each of counts 1 and 2 were undoubtedly serious examples of their type.
As mentioned, counsel for the appellant submitted that there had been no case decided in this court where an individual sentence of more than 4 years' imprisonment has been imposed for a single count of (non‑aggravated) sexual penetration without consent, after a plea of guilty. This statement appears to be accurate. There have been at least 10 cases decided in this court between 2013 and 2024 involving an offence (or offences) contrary to s 325(1) of the Code, where the offender pleaded guilty. The outcomes in those cases range from 2 years' immediate imprisonment to 4 years' immediate imprisonment: see McFarlane v The State of Western Australia;[23] The State of Western Australia v Wynne;[24] The State of Western Australia v Rayapen;[25] The State of Western Australia v HNU;[26] The State of Western Australia v Jacoby;[27] Taylor v The State of Western Australia;[28] Kabambi v The State of Western Australia;[29] Singh v The State of Western Australia;[30] The State of Western Australia v Vartolo;[31] and Pool v The State of Western Australia.[32] As to be expected, there are considerable differences in the facts and circumstances of these cases, and the antecedents of the offenders.
[23] McFarlane v The State of Western Australia [2024] WASCA 33.
[24] The State of Western Australia v Wynne [2024] WASCA 20.
[25] The State of Western Australia v Rayapen [2023] WASCA 55.
[26] The State of Western Australia v HNU [2023] WASCA 6.
[27] The State of Western Australia v Jacoby [2020] WASCA 150.
[28] Taylor v The State of Western Australia [2019] WASCA 217.
[29] Kabambi v The State of Western Australia [2019] WASCA 44.
[30] Singh v The State of Western Australia [2017] WASCA 47.
[31] The State of Western Australia v Vartolo [2015] WASCA 53.
[32] Pool v The State of Western Australia [2013] WASCA 274.
Broadly speaking, individual sentences of 4 years' imprisonment have been imposed for conduct comprising penile penetration of a victim's vagina which involved an element of force, although not amounting to a circumstance of aggravation (for example, Jacoby and Singh), or a particularly vulnerable complainant (for example, Kabambi).
We accept that the individual sentences imposed for counts 1 and 2 in this case are inconsistent with the outcomes in the cases referred to at [51] above. However, this circumstance alone does not lead to a conclusion of error on the part of the sentencing judge. As already mentioned, there is no tariff for offences of the type committed by the appellant. Further, the range of sentences imposed in other cases is only one factor to be taken into account in assessing whether a sentence is manifestly excessive. Any such range does not set the limits of the proper exercise of the sentencing discretion in a particular case. In the end, an offender is to be sentenced on the facts and circumstances of that case.
The most significant mitigating factor in the present case is the appellant's pleas of guilty, for which he received a 20% reduction pursuant to s 9AA of the Sentencing Act. The pleas of guilty had considerable utilitarian value. Most importantly, the victim was spared the trauma of giving evidence at a trial. The benefits to the State and to a victim that flow from a guilty plea, in any case, but, particularly, in cases involving sexual offending, should be properly recognised in the sentence imposed having regard to the considerations in s 9AA of the Sentencing Act.
There were other mitigating factors to be taken into account when assessing the question of manifest excess. These factors include that the appellant exhibited some remorse (although not deep remorse); his previous good character up until 2020; the steps he had voluntarily taken towards his rehabilitation and his Honour's finding that the appellant was capable of rehabilitation. However, matters personal to the appellant can only be accorded modest mitigating weight. The sentencing objectives of punishment and deterrence (both general and personal) must take precedence in this case and in cases like it.
We would not have interfered with the individual sentences imposed on counts 1 and 2 had the appellant been convicted after trial. However, having regard to all of the relevant facts and circumstances, including the pleas of guilty and the comparable cases, we have come to the conclusion that the sentences on counts 1 and 2 were not merely 'high', as conceded by the State, but each exceeded the range of a proper exercise of the sentencing discretion. They were each manifestly excessive.
We would grant an extension of time within which to appeal in respect of grounds 2 and 3, and we conclude that both of those grounds have been made out.
Ground 4 - disposition
Given that we have concluded that the individual sentences on counts 1 and 2 are manifestly excessive, and having regard to the fact that the sentence on count 2 was the largest component of the total effective sentence of 8 years 6 months' imprisonment, we have concluded that the total effective sentence infringes the first limb of the totality principle. The total effective sentence of 8 years 6 months' imprisonment is so disproportionate to the total criminality of the offending as to be properly described as unreasonable or plainly unjust. We would grant an extension of time within which to appeal based on ground 4 and we conclude that this ground has been made out.
As grounds 2, 3 and 4 have been made out, this court's discretion to resentence the appellant is enlivened.
Resentencing
This court has all the materials necessary to resentence the appellant.
We will not repeat the facts and circumstances of the offending, the appellant's personal circumstances, or the sentencing principles applicable to offences contrary to s 325(1) of the Code.
As mentioned, all of the appellant's offending was very serious. As for the appellant's pleas of guilty, like the sentencing judge, we would give a discount of 20% in respect of each offence under s 9AA of the Sentencing Act.
On count 1, we would resentence the appellant to 3 years 5 months' imprisonment. On count 2, we would resentence the appellant to 4 years 6 months' imprisonment. We would impose a sentence of 2 years 6 months' imprisonment on count 3.
The sentences on counts 1 and 2 should be served concurrently with each other. The sentence on count 3 should be served cumulatively with the sentence on count 2. In our opinion, a total effective sentence of 7 years' imprisonment conforms with the first limb of the totality principle and represents an appropriate reflection of the appellant's overall offending in all of the circumstances. The appellant should remain eligible for parole, and the sentences should be taken to have commenced on 13 July 2022.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
LF
Research Associate to the Honourable Justice Mazza
30 JUNE 2025
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