Musgrave v The State of Western Australia - [2021] WASCA 67

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT :   THE COURT OF APPEAL (WA)
CITATION:   MUSGRAVE -v- THE STATE OF WESTERN AUSTRALIA [2021] WASCA 67
CORAM:   QUINLAN CJ
BUSS P
PRITCHARD JA

HEARD:   8 DECEMBER 2020
DELIVERED          :   23 APRIL 2021
FILE NO/S:   CACR 76 of 2020
BETWEEN:   DARCY LENARD MUSGRAVE
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent

ON APPEAL FROM:
Jurisdiction              :   DISTRICT COURT OF WESTERN AUSTRALIA
Coram:   BURROWS DCJ
File Number            :   IND 1751 of 2018

Catchwords:

Sentencing - Appeal against sentence - Sentence of 3 years 6 months' immediate imprisonment for one count of sexual penetration without consent contrary to s 325(1) of the Criminal Code (WA) - Appellant convicted after trial -Whether sentence was manifestly excessive

Sentencing - Appeal against sentence - Where sexual penetration involved digital penetration - Where sentencing judge found sexual penetration is no less serious by the fact that it was a digital penetration than it would have been had it been a penile penetration - Whether sentencing judge erred in making that finding

Practice and procedure - Application for leave to appeal - Extension of time required - Inability to afford legal representation and delay in obtaining grant of legal aid - Case of lengthy delay - Whether circumstances exceptional - Whether failure to grant leave would result in a miscarriage of justice

Practice and procedure - Application for leave to adduce further evidence - Leave sought by respondent in order to answer appellant's case - Expert report stating no significant distinction between the risks of penile-vaginal penetration and digital-vaginal penetration - New evidence - Whether there would be a miscarriage of justice if new evidence not adduced

Legislation:

Acts Amendment (Sexual Assault) Act 1983 (WA)
Criminal Appeals Act 2004 (WA), s 28(3), s 39(1), s 39(3), s 40(1)(e)
Criminal Code (WA), s 319, s 323, s 324D (repealed), s 324F (repealed), s 325
Evidence Act 1906 (WA)
Interpretation Act 1984 (WA), s 9
Sentencing Act 1995 (WA), s 6

Result:

Application for an extension of time to appeal dismissed
Leave to appeal refused
Appeal dismissed

Category: D

Representation:

Counsel:

Appellant	:	Mr F P Merenda
Respondent	:	Ms A L Forrester SC

Solicitors:

Appellant	:	The Defence Lawyers
Respondent	:	Director of Public Prosecutions (WA)

Case(s) referred to in decision(s):

Alarcon v The Queen [2018] NSWCCA 298
Barbaro v The Queen [2014] HCA 2; (2014) 253 CLR 58
Bentley v The State of Western Australia [2007] WASCA 38
C v The State of Western Australia [2006] WASCA 261
Cavill v The State of Western Australia [2008] WASCA 108
Costa v The State of Western Australia [2019] WASCA 3
Coulter v The Queen (unreported, WASCA, Library No 960507, 4 September 1996)
DN v The Queen [2016] NSWCCA 252; (2016) 92 NSWLR 600
DPJB v The State of Western Australia [2010] WASCA 12
Grubisic v The State of Western Australia [2011] WASCA 147; (2011) 41 WAR 524
HJT v The State of Western Australia [2020] WASCA 120
Huggins v The State of Western Australia [2018] WASCA 61
Ibbs v The Queen [1987] HCA 46; (1987) 163 CLR 447
Jiang v The State of Western Australia [2020] WASCA 7
Kabambi v The State of Western Australia [2019] WASCA 44
KMT v The State of Western Australia [No 2] [2018] WASCA 49
Lakay v The State of Western Australia [2019] WASCA 46
Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665
Miles v The State of Western Australia [2010] WASCA 93
Mountain v The State of Western Australia [2009] WASCA 161
NG v The State of Western Australia [2020] WASCA 70
NPA v The State of Western Australia [2018] WASCA 131
Powell v The Queen (unreported, WASCA, Library No 8928, 6 June 1991)
Prempeh v The State of Western Australia [2013] WASCA 150
R v AJP [2004] NSWCCA 434; (2004) 150 A Crim R 575
R v Brown [2002] VSCA 207; (2002) 5 VR 463
R v Colless [2010] QCA 26; [2011] 2 Qd R 421
R v Hibberd [2009] NSWCCA 20; (2009) 194 A Crim R 1
R v Riley [2006] NTCCA 10; (2006) 161 A Crim R 414
R v Wark [2008] QCA 172
Ratten v The Queen [1974] HCA 35; (1974) 131 CLR 510
Rinaldi v The State of Western Australia [2007] WASCA 53
Samuels v Western Australia (2005) 30 WAR 473; [2005] WASCA 193
Smith v The State of Western Australia [2014] WASCA 90
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 Hussian [2020] WASCA 186
The State of Western Australia v Richards [2008] WASCA 134; (2008) 37 WAR 229
The State of Western Australia v Turaga [2006] WASCA 199
The State of Western Australia v Vartolo [2015] WASCA 53
The State of Western Australia v Zhuang [2021] WASCA 56
Warburton v The State of Western Australia [2009] WASCA 113; (2009) 196 A Crim R 361
Wilson v The State of Western Australia [2014] WASCA 236

Table of Contents

QUINLAN CJ

BUSS P

The trial judge's sentencing remarks including her Honour's findings as to the facts and circumstances of the offending and the appellant's personal circumstances

The grounds of appeal

Ground 1: the appellant's submissions

Ground 1: the State's submissions

Ground 1: the offence created by s 325(1) of the Code

Ground 1: the proper approach to sentencing where a statute includes several categories of sexual penetration within the definition of an offence: Ibbs v The Queen

Ground 1: the proper approach to sentencing where a statute includes several categories of sexual penetration within the definition of an offence: decisions of the Court of Criminal Appeal of New South Wales and the Court of Appeal of Queensland

Ground 1: the proper approach to sentencing where a statute includes several categories of sexual penetration within the definition of an offence: decisions of this court

Ground 1: the standards of sentencing customarily observed with respect to a single count of non-aggravated penile penetration of the vagina

Ground 1: the standards of sentencing customarily observed with respect to a single count of non‑aggravated digital penetration of the vagina

Ground 1: various propositions apparent from the text of s 325(1) of the Code and my review of the case law

Ground 1: this court's decision in Taylor

Ground 1: its merits

Ground 2: the appellant's submissions

Ground 2: the State's submissions

Ground 2: its merits

The State's application in an appeal for leave to adduce additional evidence in the appeal

Conclusion

PRITCHARD JA

Circumstances of the offending

Impact of the offending on Ms S

The appellant's personal circumstances

The trial judge's reasons for sentence

The application for an extension of time within which to appeal

Respondent's application to adduce additional evidence in the appeal

Disposition

Grounds of appeal

Ground 1

Ground 2

Disposition

QUINLAN CJ:

I agree with Pritchard JA.
I would only add the following.
Ground 1 challenges the learned sentencing judge's remark that the offence of sexual penetration without consent committed by the appellant, which consisted of the appellant inserting his fingers into the complainant's vagina, was 'no less serious' by the fact that it was digital penetration than it would have been had it been a penile penetration'.
Underlying that challenge is the proposition that penile-vaginal sexual penetration without consent is inherently more serious criminal conduct, irrespective of any aggravating factors, than digital-vaginal sexual penetration without consent.
That proposition is not only wrong, as a matter of law. It is incoherent.
The proposition is wrong because, as this Court has repeatedly confirmed, there is no hierarchy of sexual penetration. The seriousness of every offence of unlawful sexual penetration must be determined by its own individual circumstances.[1] Statements to the effect that digital penetration is 'ordinarily less serious'[2] or that penile penetration is 'often'[3] perceived by the victim as a more serious affront to personal dignity, are not statements concerning the inherent seriousness of one form of unlawful penetration compared to others. They are statements describing, and explaining, variations in sentences imposed in the particular circumstances of previous cases. They do not express a principle and cannot be applied so as to suggest some a priori starting point for a sentencing court that is called upon to sentence a particular offender, for a particular offence against a particular victim.
[1] C v The State of Western Australia [2006] WASCA 261 (C v The State of Western Australia) [35] (Wheeler JA); The State of Western Australia v Akizuki [2008] WASCA 267; (2008) 192 A Crim R 373 (The State of Western Australia v Akizuki) [68] (Steytler P).
[2] The State of Western Australia v Akizuki [68] (Steytler P).
[3] C v The State of Western Australia [32] (Wheeler JA).
Which brings me to the reason why the appellant's underlying proposition is not only wrong but incoherent. Other than in the pages of the Criminal Code, sexual offences do not exist in the abstract. They are always, and in every case, a violation by one (or more than one) human being of another human being. And the impacts that such violations have on each individual victim are as many and varied as the individual experiences of victims themselves. To suggest that 'all things being equal' one form of violation is inherently more serious than the other is incoherent because, when it comes to such matters, 'all things are never equal'.
That is why this Court has emphasised, as a matter of principle, that seriousness of every offence of unlawful sexual penetration must be determined by its own individual circumstances. To this it may be added that the impact of every offence of unlawful sexual penetration must be determined by its own individual victim.
The present case provides a clear example of that principle, and, indeed, the importance of victim impact statements in the sentencing process. While the Evidence Act1906 (WA) prevents us from using her name, the complainant in this case has a name, and a personal history, and she provided a detailed victim impact statement as to the effect that the appellant's offending had on her. The learned sentencing judge read the entirety of that statement to the appellant in the course of her Honour's sentencing remarks.
The complainant's victim impact statement laid bare the profound and devastating effect that the appellant's offending had, and continues to have, on her. In the statement, the complainant describes the actual effects of the actual offending by the appellant; it leaves no room for the Court, or anyone else, to speculate as to how she might have been affected by a different hypothetical offence that did not occur. Indeed, such a hypothetical would be absurd.
In this context, it must be recognised, with respect, that the learned sentencing judge also introduced an unhelpful hypothetical in her sentencing remarks by comparing the seriousness of the offence in this case with what 'it would have been had it been a penile penetration'. Perhaps that was a result of what her Honour perceived was the effect of statements in this Court as to what is 'often' or 'ordinarily' the case. If so, as I have sought to explain, those statements neither required, nor justified, such a comparison.
I would dismiss the appeal.

BUSS P:

The appellant has applied for an extension of time to appeal against sentence and for leave to appeal against sentence.
The appellant was charged on indictment with two counts.
Count 1 alleged that on 1 January 2018, at a regional location in Western Australia, the appellant unlawfully and indecently assaulted the complainant by touching her breast with his hand, contrary to s 323 of the Criminal Code (WA) (the Code).
Count 2 alleged that on the same date and at the same place as in count 1, the appellant sexually penetrated the complainant without her consent, by penetrating her vagina with his finger, contrary to s 325(1) of the Code.
The appellant pleaded not guilty to each charged offence.
On 8 August 2019, after a trial in the District Court before Burrows DCJ and a jury, the appellant was convicted of count 1 and count 2.
The maximum penalty for an offence against s 323 of the Code is 5 years' imprisonment. The maximum penalty for an offence against s 325(1) of the Code is 14 years' imprisonment.
On 25 October 2019, the trial judge imposed individual sentences of 6 months' immediate imprisonment for count 1 and 3 years 6 months' immediate imprisonment for count 2. Her Honour ordered that the individual sentences be served concurrently. The total effective sentence was therefore 3 years 6 months' immediate imprisonment. The sentences were backdated to 8 August 2019 to take account of time spent in custody. A parole eligibility order was made.
The last date for the appellant to appeal against sentence was 15 November 2019. He did not file his appeal notice until 4 June 2020. The appellant's application for an extension of time to appeal is supported by his affidavit sworn 27 May 2020.
The appellant appeals on two grounds. Ground 1 alleges that her Honour erred in characterising the appellant's offending in relation to count 2 as being 'no less serious by the fact that it was digital penetration than it would have been had it been a penile penetration'.
Ground 2 alleges that the sentence of 3 years 6 months' immediate imprisonment for count 2 was manifestly excessive.
On 31 August 2020, I referred the application for an extension of time to appeal to the hearing of the appeal. On 15 June 2020, I referred the application for leave to appeal to the hearing of the appeal.
On 6 August 2020, the State filed an application in an appeal for leave to adduce additional evidence in the appeal. The application was supported by an affidavit of Jeffery Alan Scholz sworn 6 August 2020. The proposed additional evidence comprised a report dated 4 August 2020 from Dr Maire Kelly. A copy of the report was annexed to Mr Scholz's affidavit. At the hearing of the appeal, the court dismissed the State's application. The court said that reasons for dismissing the application would be published at a later date.
In my opinion, neither of the grounds of appeal has a reasonable prospect of success.
I agree with Quinlan CJ and Pritchard JA that:
(a)the application for an extension of time to appeal should be dismissed;
(b)leave to appeal should be refused; and
(c)the appeal must be dismissed.
My reasons are as follows.

The trial judge's sentencing remarks including her Honour's findings as to the facts and circumstances of the offending and the appellant's personal circumstances

The trial judge's sentencing remarks, including her Honour's findings as to the facts and circumstances of the offending and the appellant's personal circumstances, were, relevantly, as follows.
The complainant in both counts was a young European woman. On 18 December 2017, she arrived in Perth. On 29 December 2017, the complainant obtained employment at a tavern in a reasonably remote part of rural Western Australia that is owned by the appellant's parents. It was a condition of the complainant's employment that she be provided with accommodation in a building next to the tavern. The complainant was allocated a room which contained two beds. A laundry was attached to the room.
On 29 and 30 December 2017, the complainant worked in the tavern's kitchen. On New Year's Eve, after completing her shift at the tavern, the complainant joined patrons of the tavern and the appellant's family to celebrate the new year.
At one stage during the evening celebrations the complainant was sitting at a table talking to the appellant, his mother and other people. However, at no time during the evening did a conversation occur solely between the complainant and the appellant. The complainant did not flirt with the appellant or anyone. She did not know the appellant's name.
At about 4.00 am on 1 January 2018, the complainant retired to her room and went to bed. Some time later, during the early hours of the morning, the appellant went to the complainant's room without invitation. He knocked persistently on the door to her room. The complainant opened the door. The appellant said something to her which she did not understand. When the appellant asked the complainant for a hug she said 'no'. The appellant was insistent and asked the complainant why she was not interested in him. The complainant reiterated that she was not interested in the complainant. She said she wanted to sleep on her own. The appellant asked whether he could sleep in her bed and she responded 'no'.
The complainant appreciated that the appellant was drunk and thought that he would be unable to drive a motor vehicle. She did not consider herself to be in any danger from the appellant because he was the son of her employer. The complainant told the appellant that if he wanted to stay in her room that night he had to sleep in the other bed. The appellant agreed to sleep in the other bed while the complainant slept in her own separate bed.
Later, but still in the early hours of the morning, as she was falling asleep, the complainant realised that the appellant was getting into her bed. She screamed at the appellant and said:
What are you doing? I told you already I said no already. Leave me alone. All I want to do is sleep.
The complainant immediately got out of her bed and got into the other bed. Later, still in the early hours of the morning, the complainant went to the bathroom. When she returned, the appellant offered to get out of her bed. The complainant accepted the offer. She got into her own bed and fell asleep.
Some time later, the complainant awoke. The appellant was in her bed. He was fondling the complainant's breasts and his fingers were inserted into her vagina. The appellant touched her breast under her clothing. Her pants and underwear had been pulled down to her mid-thigh area while she was asleep.
The complainant was shocked. She shouted. The complainant endeavoured to push the appellant away. She immediately got out of bed and left her room. She was crying. The appellant approached the complainant and asked her not to tell his parents about what he had done. The appellant then walked away. The complainant returned to her room, locked the door and showered. She packed her belongings and wrote a note which she left in the laundry.
As the complainant was preparing to leave the tavern, the appellant returned. He was crying and said that he felt like the devil. The appellant then departed again. The complainant hitchhiked to a regional urban area. She telephoned her mother in Europe and told her what the appellant had done. The complainant then reported the matter to the police.
The appellant was born on 4 July 1994. He was aged 23 at the time of the offending and was 25 when sentenced.
The appellant was the youngest of three siblings. His family remains intact. The appellant's home environment was free from substance abuse and violence. However, the appellant did experience some difficulties growing up. He was overweight. The appellant perceived his father to be a strict disciplinarian who had high expectations of the appellant. The appellant perceived that he received less attention from his parents than his sister because his sister had some significant personal issues.
The appellant has had some short term relationships, but has not established an enduring long term relationship.
The appellant did not enjoy school. He was bullied by other students. The appellant often retaliated and as a consequence was excluded occasionally from attending school.
After leaving school the appellant attended TAFE where he completed a pre-apprenticeship in heavy metal fabrication. He has worked in a variety of roles for short periods including as a boilermaker and a shark fisherman. However, he was unemployed for two years before he was sentenced. His employment had been terminated primarily as a consequence of his alcohol and drug misuse. However, the appellant wants to live a successful life, including working in his own business in the hospitality industry.

The appellant has sound physical health. Although he has not been diagnosed with a mental illness, the appellant has a history of hospital admissions for episodes of drug induced psychosis. He has some unresolved trauma stemming from sexual abuse he suffered when he was a teenager. Her Honour found that the sexual abuse had impacted significantly upon the appellant and her Honour took that matter into account in mitigation.
The appellant's alcohol and drug abuse began when he was a teenager. Initially, he used cannabis and then alcohol. Later, he consumed amphetamines and other drugs, including LSD. At the age of 14 or 15 he used methylamphetamine intravenously. The appellant has used alcohol in conjunction with methylamphetamine. He has treatment needs in relation to his alcohol and drug abuse.
The information before her Honour included a presentence report and a report dated 21 October 2019 from Mercurio Cicchini, a clinical psychologist.
The author of the presentence report said that the appellant maintained a stance of denial. In particular, the appellant did not accept any responsibility for his offending against the complainant. The appellant denied that the offence had happened as alleged by the complainant. The appellant appears to have asserted that the complainant was motivated in her account of the offence by the prospect of financial gain or compensation.
The author of the presentence report also said that the appellant had little understanding of appropriate conduct towards women, including regarding issues of consent. The appellant was an isolated individual who lacked self‑esteem. Her Honour found that the appellant had evinced no victim empathy for the complainant and that he had not demonstrated any remorse for his offending behaviour.
Mr Cicchini said that the appellant's medical history recorded 'extreme vulnerability towards anxiety (which he attempted to cope with using self-medication via drug and alcohol abuse), depression, and self-harm behaviour'. In the past, especially as a reaction to drug abuse, the appellant has been 'floridly psychotic, and has been previously diagnosed and treated as suffering from drug-induced psychosis'. The appellant has previously been admitted for lengthy periods of hospitalisation in a number of mental health facilities.
Mr Cicchini expressed the view that there was no evidence, apart from alcohol abuse, that the appellant's 'psychological vulnerabilities would have contributed significantly' to the offending in question.
Mr Cicchini's clinical impressions were that, as a result of childhood adversity (including physical and emotional bullying by peers at school and elsewhere for being overweight, sexual abuse and conflict with his father) the appellant had been experiencing emotional disturbances. The appellant informed Mr Cicchini that he had been treated with a variety of prescribed medications including medications for anxiety, depression, psychosis and mood stabilisation. Mr Cicchini recommended that a psychiatric review of the appellant's medication should be undertaken with a view to reducing his psychotic processes.
Her Honour said that it was clear that the appellant had significant treatment needs and that it was necessary for the appellant to address his mental health issues. While those issues remained untreated, the appellant's risk of reoffending was elevated.
Her Honour noted that the appellant had a prior criminal record. His previous convictions were for traffic and disorderly behaviour offences. In addition, as a juvenile, he was convicted of aggravated burglary and stealing offences. Her Honour commented that the appellant's previous convictions demonstrated a persistent disregard for the law and 'some quite blatant offending'. Her Honour said that, as a consequence of his prior criminal record, the appellant was not of prior good character.
Her Honour acknowledged, however, that she had received some written references from people who spoke well of the appellant.
Her Honour acknowledged a number of mitigating factors. First, although the appellant was aged 23 at the time of the offending and was 25 when sentenced, there was some mitigation in his having been a young man when he committed the offence. Secondly, there was mitigation in the trauma that the appellant had suffered in his formative years. Thirdly, the appellant made some limited admissions at the trial which facilitated, although to 'a very minor degree', the conduct of the trial.
Her Honour mentioned, in some detail, the contents of the complainant's victim impact statement. It is apparent from the statement that the offending has had a very significant impact upon the complainant's psychological and emotional well-being. For example, her self-esteem has deteriorated, she has experienced depressed mood and she is anxious about leaving her home. For some time she could not work and did not socialise. The complainant is hypervigilant and often suspicious of men. She has gained considerable weight as a result of compulsive eating. The complainant suffers from insomnia and often awakes as a result of traumatic nightmares about the offending. She found the trial, including the giving of her evidence, extremely difficult and traumatising.
Her Honour found that the appellant's offending was aggravated by the following factors. First, the appellant's offending conduct was persistent in that '[the complainant] repeatedly told [the appellant] that she was not interested in [him] in a sexual manner and repeatedly told [him], 'no' when [the appellant] tried to approach [the complainant]' (ts 259). Secondly, the appellant waited until the complainant was asleep before sexually offending against her, when she was vulnerable and defenceless. Thirdly, there was 'a degree of power imbalance' between the appellant and the complainant. The complainant was a foreigner who had recently arrived in Australia. She had limited English skills and she was the employee of the appellant's parents.
Her Honour said that it was important that she take into account the impact of the appellant's offending upon the complainant. Her Honour then said:
Now, it was pointed out in another case by Wheeler J in C v The State of Western Australia that there's no hierarchy for sexual penetrations. For example, although digital penetration will ordinarily be less serious than penile penetration that is not inevitably so. It might in particular circumstances be no less serious or even more serious. The seriousness of every offence of unlawful sexual penetration must be determined by its own individual circumstances. And I find in this case that the sexual penetration is no less serious by the fact that it was a digital penetration than it would have been had it been a penile penetration (ts 260 ‑ 261).
Her Honour then emphasised that general deterrence was an important sentencing consideration in cases of sexual penetration without consent. Her Honour commented that it was necessary to impose a sentence that made clear to others in the community, particularly other young men, that it was 'completely unacceptable to engage in sexual activity with a woman in circumstances such as these where the woman has said, "no", where [she is] asleep and therefore she is … incapable of consenting or resisting' (ts 261). Her Honour said that this proposition had been reaffirmed recently by this court (Mitchell JA, Beech JA and I) in NPA v The State of Western Australia.[4]
[4] NPA v The State of Western Australia [2018] WASCA 131 [51].
Her Honour noted that in NPA [51] this court had said that '[i]n a case of a single count of penile penetration of the vagina where there is a plea of not guilty, a term of imprisonment of 5 to 6 years would not be unusual'. Her Honour then continued:
Now, the court emphasised that that doesn't mean that a sentence outside that range is thereby manifestly excessive or inadequate. The circumstances of offending vary widely and the available maximum sentence must not be overlooked. So the court [has] again said that that is not an unusual sentence in the case of penile-vaginal penetration. I take into account in this case that it was of short duration and you desisted when [the complainant] forcibly pushed you away with her knees and told you to stop (ts 261).

The grounds of appeal

As I have mentioned, the appellant relies upon two grounds of appeal.
Ground 1 alleges, in essence, that the sentencing judge erred in characterising the appellant's offending in relation to count 2 as being 'no less serious by the fact that it was digital penetration than it would have been had it been a penile penetration' (ts 261).
Ground 2 alleges, in essence, that the sentence of 3 years 6 months' immediate imprisonment for ground 2 is manifestly excessive.

Ground 1: the appellant's submissions

Counsel for the appellant submitted that the sentencing judge erred in characterising the appellant's offending as being 'no less serious by the fact that it was a digital penetration than it would have been had it been a penile penetration' (ts 261).
Counsel sought to rely upon this court's decision in Taylor v The State of Western Australia.[5] In Taylor, the appellant was convicted, on his plea of guilty, of one count of having sexually penetrated the complainant without her consent, by penetrating her vagina with his finger, contrary to s 325(1) of the Code. The sentencing judge (who was also the sentencing judge in the present case) characterised the appellant's offending as 'marginally less serious than a count of penile penetration but only marginally so'. In Taylor [78], Mazza JA, Beech JA and I said:
In our opinion, bearing in mind the observations of Wheeler JA in C and the comments of Steytler P in Akizuki, if the appellant had penetrated the complainant's vagina with his penis rather than his finger, and the other objective facts and circumstances were unaltered, the penile penetration would not merely have been 'marginally more serious' than the digital penetration. The penile penetration would likely have been perceived by the complainant as a materially greater affront to her personal dignity and bodily integrity than the digital penetration. In the circumstances, the digital penetration which actually occurred was materially less serious than penile penetration would have been. It was not merely 'marginally less serious'.
[5] Taylor v The State of Western Australia [2019] WASCA 217.
Counsel submitted that had the appellant penetrated the complainant's vagina with his penis, 'the impact that such an act would have had on the complainant would have been objectively more serious than if it were a digital penetration'. It was submitted that this was so because penile penetration would likely have been perceived by the complainant as a materially greater affront to her personal dignity and bodily integrity than digital penetration and penile penetration would have carried with it a perceived risk and fear of both impregnation and the contraction of a sexually transmitted infection. In the circumstances, it was not open to the sentencing judge to infer that the appellant's conduct in digitally penetrating the complainant's vagina was as serious as a penile penetration would have been.
According to counsel for the appellant, the sentencing judge's erroneous characterisation of the appellant's offending, in the present case, had a material impact upon the sentence for count 1 and the total effective sentence. Counsel argued that the material impact was evident because her Honour's consideration of the appropriate sentencing range turned upon the sentencing range identified in NPA [51] for sexual penetration without consent involving penile penetration. Consequently, her Honour's consideration of the sentences customarily imposed for offences of the kind committed by the appellant included cases that were not comparable.

Ground 1: the State's submissions

Counsel for the State submitted that s 325(1) of the Code does not distinguish between the type or extent of sexual penetration in prescribing the maximum penalty of 14 years' imprisonment.
Counsel referred to a number of previous decisions of this court including C v The State of Western Australia,[6] The State of Western Australia v Akizuki[7] and Taylor.
[6] C v The State of Western Australia [2006] WASCA 261.
[7] The State of Western Australia v Akizuki [2008] WASCA 267; (2008) 192 A Crim R 373.
Counsel acknowledged that, at the hearing of the appeal in Taylor, the State conceded that, having regard to the objective facts and circumstances of the offending in that case, it was difficult to sustain the sentencing judge's characterisation of the appellant's offending in that case as 'only marginally' less serious than penile penetration.
In the State's written submissions, counsel asserted, in effect, that:
(a)There are cases (which counsel did not cite) in which sentences for digital penetration have been higher than other cases involving penile penetration, but that was due to features other than the type of penetration which increased the relative seriousness of the offence; for example, the relationship between the parties, the surrounding circumstances of the offence and the use of force or the making of threats.
(b)However, 'where circumstances are like, an offence involving penile penetration has to date attracted a more severe sentence than an offence involving digital penetration'.
(c)The court's conclusion in Taylor [78] that 'bearing in mind the observations of Wheeler JA in C and the comments of Steytler P in Akizuki, if the appellant had penetrated the complainant's vagina with his penis rather than his finger, and the other objective facts and circumstances were unaltered, the penile penetration would not merely have been "marginally more serious" than the digital penetration' constituted a finding by the court that there was 'a hierarchy of sexual penetration'.
(d)The observation by Wheeler JA in C (which has been adopted in numerous subsequent decisions of this court including Taylor) that '[p]enile penetration will … often, be perceived by the victim as a more serious affront to personal dignity and bodily integrity' than digital penetration is without any evidentiary foundation.
(e)The impact of the offence of sexual penetration on a complainant is 'entirely personal to the particular complainant and cannot be predicted or scaled in any way'. Further, the impact of a kind of penetration other than that actually inflicted would be 'speculative at best and would depend upon many factors' apart from the kind of penetration.
In the State's oral submissions, counsel advanced or accepted, in effect, these contentions:
(a)The 'starting point' in sentencing for digital penetration of the vagina without consent should be assimilated to the established sentencing range for penile penetration of the vagina without consent if 'all things are equal' (appeal ts 19 ‑ 20).
(b)There should be a ratcheting up of sentences for digital penetration, which ordinarily are less than for penile penetration, and there should be no difference in terms of starting point or ordinary outcome (appeal ts 20).
(c)However, later in her submissions, counsel said that the State did not 'seek to challenge penalties across the board' (appeal ts 45).
(d)It is apparent from the cases that 'de facto a range has been set in the sense [of] … 5 to 6 years … for penile penetration and … ordinarily digital penetration is less' and, what the sentencing judge was saying in the present case, is that the present case was 'not less serious' (appeal ts 22).
(e)The decided cases in relation to the offence of sexual penetration without consent where the offenders are sentenced after trial indicate that the sentence for count 2 imposed on the appellant in the present case was 'well within range' (appeal ts 45).
(f)It is unproductive 'to classify offences in terms of their seriousness by the type of penetration' (appeal ts 45).
Counsel submitted that, in the present case, the complainant's victim impact statement demonstrated that the sentencing judge's finding in the present case that 'the sexual penetration is no less serious by the fact that it was a digital penetration than it would have been had it been a penile penetration' was wholly justified.
According to counsel, that finding by her Honour was not erroneous and consequently ground 1 should fail.

Ground 1: the offence created by s 325(1) of the Code

Section 325(1) of the Code provides, relevantly:
A person who sexually penetrates another person without the consent of that person is guilty of a crime and is liable to imprisonment for 14 years.
Section 325(1) appears in ch XXXI of the Code.
Section 319(1) provides, relevantly, that in ch XXXI, 'to sexually penetrate' means:
(a)to penetrate the vagina (which term includes the labia majora), the anus, or the urethra of any person with ‑
(i)any part of the body of another person; or
(ii)an object manipulated by another person,
except where the penetration is carried out for proper medical purposes; or
(b)to manipulate any part of the body of another person so as to cause penetration of the vagina (which term includes the labia majora), the anus, or the urethra of the offender by part of the other person’s body; or
(c)to introduce any part of the penis of a person into the mouth of another person; or
(d)to engage in cunnilingus or fellatio; or
(e)to continue sexual penetration as defined in paragraph (a), (b), (c) or (d).
By s 9 of the Interpretation Act 1994 (WA), where a word or phrase is defined in a written law, other parts of speech and grammatical forms of that word or phrase have corresponding meanings.

Ground 1: the proper approach to sentencing where a statute includes several categories of sexual penetration within the definition of an offence: Ibbs v The Queen

In Ibbs v The Queen,[8] the High Court considered s 324D (repealed) of the Code. Section 324D (repealed) was the precursor of s 325(1), as currently enacted, and was relevantly in identical terms. Section 324F (repealed) was the precursor of s 319(1), as currently enacted, and like s 319(1) gave an extended meaning to the phrase 'to sexually penetrate'. For the purposes of this appeal, there is no material difference between the extended meaning given by s 324F (repealed) and s 319(1). Mason CJ, Wilson, Brennan, Toohey and Gaudron JJ rejected the proposition that, divorced from the circumstances, each kind of sexual penetration as defined in s 324F (repealed) was neither more nor less heinous than another (451). Their Honours said (451 ‑ 452):
The maximum penalty prescribed for the offence of sexual assault is reserved for the worst type of case falling within s 324D … The maximum penalty is not prescribed as an appropriate penalty for the worst type of case falling within each of the respective categories of sexual penetration described in s 324F. The inclusion of several categories of sexual penetration within the offence described as sexual assault carries no implication that each category of sexual penetration is as heinous as another if done without consent. When an offence is defined to include any of several categories of conduct, the heinousness of the conduct in a particular case depends not on the statute defining the offence but on the facts of the case. In a case of sexual assault, a sentencing judge has to consider where the facts of the particular case lie in a spectrum at one end of which lies the worst type of sexual assault perpetrated by any act which constitutes sexual penetration as defined. As Dwyer CJ said in Reynolds v Wilkinson ((1948) 51 WALR 17 at p 18):
'Crimes bearing the same general description have not equally evil content or characteristics, and offenders also differ in themselves.'

[8] Ibbs v The Queen [1987] HCA 46; (1987) 163 CLR 447.

In R v AJP,[9] the Crown appealed against a sentence imposed upon the respondent for a single count of sexual intercourse with a child under the age of 10 years. The form of sexual intercourse was fellatio. The offence was created by s 66A of the Crimes Act 1900 (NSW). Section 66A is analogous to s 325(1) of the Code. The term 'sexual intercourse' was defined in s 61H of the Crimes Act to include various forms of sexual intercourse and sexual penetration. The definition in s 61H is analogous to the definition of 'to sexually penetrate' in s 319(1) of the Code. Simpson J (Adams J relevantly agreeing and Howie J agreeing) allowed the Crown's appeal. Simpson J referred to Ibbs and to a suggestion by senior counsel for the respondent in the appeal before her Honour that penile/vaginal intercourse would, in the circumstances, have amounted to a more serious offence. Her Honour then said:
It is not possible to create some kind of hierarchy of the seriousness of the various kinds of sexual intercourse contemplated by s 66A (and defined in s 61H). It is the facts and circumstances of each case, including the nature of the intercourse, that enables the proper evaluation of objective seriousness. While penile/vaginal penetration might be taken to be more serious than enforced fellatio, that does not mean that enforced fellatio necessarily falls somewhere below the midpoint of objective seriousness. There are many instances of conduct that come within the definition of sexual intercourse that would be significantly less serious than enforced fellatio …
Other appropriate areas of enquiry in the consideration of the objective seriousness of a s 66A offence are, for example, how the offences took place, over what period of time, with what degree of force or coercion, the use of threats or pressure before or after the offence to ensure the victim's compliance with the demands made, and subsequent silence, and any immediately apparent effect on the victim [24] ‑ [25].
[9] R v AJP [2004] NSWCCA 434; (2004) 150 A Crim R 575.
In R v Hibberd,[10] Price J (Tobias JA agreeing generally and James J agreeing) cited Ibbs and noted the definition of 'sexual intercourse' in s 61H of the Crimes Act. His Honour then said:
Non-consensual sexual intercourse by digital penetration has generally been considered to be less serious than an offence of penile penetration … but each case will depend on its own facts. There is no canon of law which mandates a finding that digital penetration must be considered less serious than other non-consensual acts of sexual intercourse [56]. (original emphasis)
[10] R v Hibberd [2009] NSWCCA 20; (2009) 194 A Crim R 1.
Similarly, in Hibberd:
(a)Tobias JA observed that, as the objective seriousness of an offence is 'wholly dependent on the facts and circumstances of the particular case … any resort to prima facie assertions that one form of penetration is likely to be or generally will be more serious than another, is to be avoided' [21]; and
(b)James J commented that 'digital sexual intercourse without consent is a serious offence and … there is no rule that it is necessarily less serious than penile sexual intercourse without consent' [26].
In DN v The Queen,[11] Beazley P (Davies and Garling JJ agreeing) considered Ibbs and referred to Hibberd in the course of identifying factors relevant to sentencing for a sexual offence that encompasses a range of offending conduct. Her Honour said that the factors of relevance 'include the degree of violence, any physical injury inflicted, the form of forced intercourse and any circumstances of humiliation and the duration of the offence' [107].
[11] DN v The Queen [2016] NSWCCA 252; (2016) 92 NSWLR 600.
In Alarcon v The Queen,[12] Schmidt J (Basten JA agreeing and Fagan J relevantly agreeing) cited Ibbs and referred to Hibberd. Her Honour then stated:
(a)'there can be no general assumption that digital sexual intercourse is less serious than penile sexual intercourse' [81];
(b)'there is no prima facie assumption that digital penetration is generally less serious than other forms of penetration' [82]; and
(c)'the objective seriousness of the particular offence must be assessed in light of the facts and circumstances disclosed by the evidence, because the sentence imposed must be proportionate to the offence committed' [83].
[12] Alarcon v The Queen [2018] NSWCCA 298.
In R v Wark,[13] Cullinane J (McMurdo P and MacKenzie AJA relevantly agreeing) observed:
I think it can be accepted that as a general proposition that rape constituted by penile/vaginal or anal penetration will attract a higher sentence than rape cases involving digital or oral penetration. However there may be cases not involving penile penetration which because of their associated circumstances call for punishment which may be as great as or exceed cases involving penile penetration [37]. (emphasis added)
[13] R v Wark [2008] QCA 172.
McMurdo P, after expressing her agreement with the reasons of Cullinane J, said:
Whilst cases of penile vaginal or penile anal penetration will often be more serious and attract heavier penalties than cases involving only digital penetration, the appropriate sentence in each case will turn on its own circumstances. Relevant exacerbating factors include whether the complainant is a child and if so, the age of the child; whether violence has been used; the physical and psychological effect of the offence on the victim; and whether the offender has previous relevant history [2].
In R v Colless,[14] the appellant was convicted and sentenced for numerous offences including five offences of rape. All of the offences of rape had been committed digitally. His appeal against sentence was allowed. The Court of Appeal of Queensland (de Jersey CJ, Holmes and Muir JJA) made these observations:
While the Criminal Code establishes the same maximum penalty, whether the rape be accomplished by penetration by the penis or digitally, it is reasonable to observe that, without additional aggravating features (weapons, extra brutality, threats of serious harm, premeditation, residual injury etc), a rape accomplished digitally may generally be seen as somewhat less grave than a rape accomplished by penile penetration. See R v Wark [2008] QCA 172. That is because it may be less invasive, would not carry a risk of pregnancy, and would ordinarily carry substantially reduced risk of infection [17]. (emphasis added)
[14] R v Colless [2010] QCA 26; [2011] 2 Qd R 421.
However, their Honours noted, later in their reasons, that a number of authorities have warned against 'broad generalisations as to the comparative seriousness of penile and digital rape' [32]. Their Honours cited R v Brown[15] and R v Riley[16] in support of that proposition.

Ground 1: the proper approach to sentencing where a statute includes several categories of sexual penetration within the definition of an offence: decisions of this court

[15] R v Brown [2002] VSCA 207; (2002) 5 VR 463.

[16] R v Riley [2006] NTCCA 10; (2006) 161 A Crim R 414.

In The State of Western Australia v Turaga,[17] the State appealed against sentences imposed upon the respondent for 17 counts, being one count of deprivation of liberty, one count of threat to kill and 15 counts of aggravated sexual penetration without consent contrary to s 326(1) of the Code. The aggravated sexual penetration counts comprised 14 counts of sexual penetration involving digital, oral and penile penetration of the vagina and one count of penile penetration of the anus. This court (Wheeler JA, McLure JA and I) allowed the State's appeal and resentenced the respondent. Wheeler JA made observations about the severity of oral penetration or digital penetration compared to other types of sexual penetration. Her Honour said [16]:
Count 13 is one of performing cunnilingus. Generally, although they are all defined by statute as 'sexual penetration', the Courts would regard counts of oral penetration or digital penetration as being of lesser severity than other types of sexual penetration, following Ibbs v The Queen (1987) 163 CLR 447. However, Ibbs is not authority for the proposition that some types of sexual penetration are intrinsically less serious than others; rather, it was recognised in that case that the seriousness would depend upon the circumstances. In this case, the complainant said of this count, 'I felt disgusted as this act degraded me the most'. Given that it was plainly the respondent's purpose to degrade and humiliate the complainant during the course of this ordeal, and given that the parties had been in a long relationship so that the respondent would be expected to know how the complainant would react to this particular act, those circumstances, in my view, elevate the seriousness of the oral penetration in that particular count very considerably. (emphasis added)
[17] The State of Western Australia v Turaga [2006] WASCA 199.
In C, the appellant appealed against sentences imposed upon him on four counts of sexual offences against a child who was aged 12 or 13 at the time of the offending. The offences comprised one count of digital penetration of the child's vagina, two counts of indecent dealing and one count of inciting the child to engage in sexual behaviour. This court (Steytler P, Wheeler and McLure JJA) allowed the appeal and resentenced the appellant.
Steytler P (Wheeler JA relevantly agreeing and McLure JA agreeing) said that 'there is support in the cases for the proposition that digital penetration is ordinarily less serious than penile penetration' [13]. However, his Honour added that it is plain that 'any sexual penetration of a child is a serious offence and that repeated instances of sexual offending against a child will ordinarily attract a severe sentence' [13].
Wheeler JA, although agreeing with Steytler P's reasons, added some observations of her own. Her Honour said at [28] that the support in the cases for the proposition that digital penetration is less serious than penile penetration appears to be supported by the observations of the High Court in Ibbs.
Wheeler JA referred to the second reading speech of the Minister in relation to the Bill which, upon enactment, became the Acts Amendment (Sexual Assaults) Act 1985 (WA) and introduced s 324F (repealed) into the Code. The Minister said:[18]
Sexual penetration will include penetration of the vagina of any person or anus of any person by any part of the body of another person or an object manipulated by another person except where carried out for proper medical purposes and will also include activity generally described as fellatio or cunnilingus. This has the effect that the most serious forms of indecent assault are to be equated in seriousness with the more recognised forms of sexual intercourse or penetration.
[18] Western Australian Parliamentary Debates, 3 September 1985, p 700.
Wheeler JA expressed the view that, in the majority of cases, 'any tension which may exist between the apparent legislative intent which appears from the definition [of sexual penetration] in s 324F, as confirmed by the extrinsic materials, on the one hand, and the observations of the High Court in Ibbs on the other will usually not be of practical significance' [32]. Her Honour elaborated:
In the majority of cases, penile penetration is more serious than digital penetration, fellatio or cunnilingus. This is because, when regard is had to either the actual or the potential harm to be caused by the conduct, the risks associated with penile penetration can include pregnancy, a sexually transmitted disease, and, in the case of children, often pain, or even physical damage. Penile penetration will also, often, be perceived by the victim as a more serious affront to personal dignity and bodily integrity. In addition, many cases of penile penetration tend to be associated with a greater degree of force or violence than cases of digital penetration.
However, there can be very serious cases which do not involve penile penetration. Some cases of penetration involving objects are obvious examples. Some cases of digital penetration can be extremely forceful and very serious in their consequences. Some other forms of penetration may be effected because the offender considers that they are more likely to be degrading and humiliating to the victim (see, eg, Turaga v The State of Western Australia [2006] WASCA 199) [32] ‑ [33]. (emphasis added)
Wheeler JA expressed her acceptance, without reservation, of the proposition that a court sentencing in respect of sexual penetration without consent cannot simply assume that all such offences are of equal seriousness [34]. Her Honour then said:
However, I would have great difficulty in accepting the proposition that there is any sort of 'hierarchy' of sexual penetration which is such that some forms of penetration, such as digital penetration, are in all circumstances to be considered less serious than others. … It is, in my view, important to stress that the seriousness of the offence will be determined by all of the circumstances of the case [35].
In Bentley v The State of Western Australia,[19] the appellant appealed against sentences imposed in respect of two groups of offences, both committed in March 2001. The offences were very serious and the sentences imposed were very lengthy. This court (Steytler P, Wheeler JA and I) allowed the appellant's appeal and resentenced him.
[19] Bentley v The State of Western Australia [2007] WASCA 38.
One group of offences included a significant number of sexual offences, being counts 3, 4, 5, 6, 8, 9 and 10.
Wheeler JA (Steytler P and I agreeing) said in relation to those counts [42]:
Turning finally to resentence the appellant, I deal first with the series of offences committed earlier in the day ‑ that is, the series involving the significant number of sexual assaults. His Honour the learned sentencing Judge grouped the sexual penetration offences into two different categories. Counts 3, 5, 6 and 8, which involved penetration of either the complainant's vagina or of her mouth with the appellant's penis, he plainly considered to be more serious, marking them with a heavier sentence. Counts 4, 9 and 10 were either digital penetration or cunnilingus. I would adopt that categorisation. (emphasis added)
Her Honour then said [43]:
Appropriate standards of sentencing for offending involving a prolonged and degrading series of sexual attacks facilitated by the use of a weapon, were recently considered by this Court in the case of The State of Western Australia v Turaga [2006] WASCA 199. Applying the standards of sentencing discussed in that case, it seems to me that an appropriate sentence for each of counts 3, 5, 6 and 8 would be 4 years (equivalent to 6 years prior to the transitional provisions), while an appropriate sentence for each of counts 4, 9 and 10 would be 2 years and 4 months (3½ years prior to the transitional provisions). (emphasis added)
In Cavill v The State of Western Australia,[20] Miller JA (McLure JA and I relevantly agreeing) referred at [266] to Wheeler JA's observations in C at [35]. Miller J then said that '[w]hilst there will be cases where penile penetration is a much more serious offence than digital penetration, digital penetration as an offence should not be underrated in its seriousness' [267].
[20] Cavill v The State of Western Australia [2008] WASCA 108.
In Akizuki, the State appealed against sentences imposed upon the respondent in respect of four offences against the complainant. The first was an offence of unlawful assault occasioning bodily harm; the second was an offence of aggravated sexual penetration without consent (contrary to s 326(1) of the Code); and the third and fourth were offences of attempted aggravated sexual penetration (s 326(1) and s 552(1) of the Code). The offence of aggravated sexual penetration without consent involved the respondent's penetration of the complainant's vagina with his fingers. The two offences of attempted aggravated sexual penetration without consent involved the respondent's attempted penetration of the complainant's vagina with his penis. This court (Steytler P, McLure and Miller JJA) allowed the State's appeal and resentenced the respondent.
Steytler P (McLure JA relevantly agreeing) pointed out that there is no tariff for sexual offences and the sentence to be imposed in a particular case depends upon its individual circumstances, having regard to the maximum penalty [3]. His Honour added [3]:
This is often said by the courts, but the proposition is one to which more than lip service must be paid. Nevertheless, it is important, when deciding upon the appropriate sentence in the individual circumstances of a case, to know what sentences are customarily imposed in cases involving similar offending. Otherwise, there is a risk that sentencing will become idiosyncratic and arbitrary.
After exhaustively reviewing previous cases, his Honour said that [68]:
(a)'the circumstances of sexual offending, and of sexual offenders, are almost infinitely variable'; and
(b)consequently, 'the sentence imposed in one case can provide only very limited guidance in deciding what sentence should be imposed for a similar offence in another case'.
However, Steytler P then said that some conclusions could be drawn from his review of the decided cases, as follows [68]:
(1)An average starting point for a case of penile penetration of the vagina without consent, absent circumstances of aggravation, is in the order of 7 years' imprisonment under the former sentencing regime, or around 4 years and 8 months' imprisonment under the transitional regime. That starting point takes no account of any factors in mitigation.
(2)Because the circumstances of sexual offending and sexual offenders are so variable, nothing will be achieved by specifying a range of sentences customarily imposed. The range of potential aggravating features is so huge that features of that kind can either dramatically increase the sentence imposed (bearing in mind that the maximum sentence for an aggravated offence is 20 years' imprisonment: s 326 of the Criminal Code) or have little or no effect on the sentence imposed. The range of potential mitigating factors is at least equally extensive. They might result in a very large reduction in sentence or little or no reduction.
(3)Nor will anything be achieved by specifying a different starting point for each category of sexual penetration without consent. It should not be assumed that one form of sexual penetration is necessarily more, or less, serious than another. As Wheeler JA pointed out in C v The State of Western Australia [2006] WASCA 261 [35], there is no 'hierarchy of sexual penetration'. For example, although digital penetration will ordinarily be less serious than penile penetration, that is not inevitably so. It might, in particular circumstances, be no less serious or even more serious. The seriousness of every offence of unlawful sexual penetration must be determined by its own individual circumstances: C [35] (Wheeler JA); Cavill [266] ‑ [267] (Miller JA). (emphasis added)
His Honour commented that what he had written at [68] seemed to him to be 'about as much guidance as can be obtained from the cases' even though he appreciated that 'it is less than sentencing judges might wish' [69]. His Honour explained that this was 'a necessary consequence of the court's obligation to tailor each sentence to the individual circumstances of the case, having regard for the maximum penalty provided by the legislature and, to the extent that they can be of assistance, sentences customarily imposed in similar circumstances' [69].

In Akizuki, Miller JA referred at [106] to Wheeler JA's observations in Turaga at [16] to the effect that Ibbs is not authority for the proposition that some types of sexual penetration are intrinsically less serious than others. Miller JA then commented that '[g]enerally speaking, it can be taken that sentences for offences of digital penetration will be lower than penile penetration, but … the seriousness of the individual case depends upon the circumstances' [108].
In Warburton v The State of Western Australia,[21] Wheeler JA (Pullin and Miller JJA agreeing) referred to the general range of sentences imposed for a single act of penetration of the vagina with the penis where the complainant is over the age of 16. Her Honour said [15] ‑ [20]:
[21] Warburton v The State of Western Australia [2009] WASCA 113; (2009) 196 A Crim R 361.
In R v Quartermaine [2000] WASCA 341, in reasons with which Kennedy and Wallwork JJ agreed, I said at [16]:
'While there is no 'tariff' for offences of sexual penetration without consent, and the cases show that sentences imposed vary substantially, the general range of sentences imposed for a single act of penetration of the vagina with the penis where the victim is over the age of 16, remains of the order of about 6 years. A sentence of this kind is generally at the lower end of the scale for offences of this type, and is often the sentence which is imposed after taking into account mitigating factors. (citations omitted)'
I repeated these observations in R v Cleak [2004] WASCA 72 (at [13]), in reasons with which Steytler and McKechnie JJ agreed.
The range of sentences that I referred to in Cleak, of 6 to 9 years (4 to 6 under the post transitional sentencing regime) has been referred to, and the observations applied, in a number of other cases: see Woodley v The State of Western Australia [2008] WASCA 92 at [21], per McLure JA (Steytler P and Miller JA agreeing); McKerlie v The State of Western Australia [2006] WASCA 274 at 178 ‑ 183, per Roberts Smith JA (Steytler P agreeing); The State of Western Australia v Turaga [2006] WASCA 199 at [12], per Wheeler JA, and at [35] per McLure JA with Buss JA agreeing; The State of Western Australia v Akizuki [2008] WASCA 267 at [109] ‑ [117] per Miller JA.
It should be noted that in some of the cases referred to above, the range of 6 to 9 years' imprisonment has been specifically said to be a range which does not have regard to mitigating factors - that is, it would be a range of sentences before allowing for matters such as a plea of guilty, rather than the range of sentences finally imposed after taking such factors into account, where they existed. I do not understand observations of that kind to be inconsistent with observations in cases such as Cleak that a sentence of 6 years is often one imposed after mitigating factors. The whole point of a range is that there is no single sentence which is appropriate, even in what might be regarded as an 'ordinary' case. The observations about a range of 6 to 9 years, and the observations about the circumstances in which a term of 6 years has often been imposed, demonstrate no more than that it is not unusual for sentences for the 'ordinary' sexual penetration without consent to be imposed in circumstances where the sentencing judge takes as a 'starting point' a sentence which is higher, rather than lower, within that expressed range.
Finally, in relation to sentences commonly imposed, there is a recent decision of a coram consisting of five judges of this court, The State of Western Australia v Richards [2008] WASCA 134. The issue of principle in that case was whether s 41(4)(b) of the Criminal Appeals Act 2004 (WA) applied retrospectively. There were also issues concerning the weight which it was appropriate to give to cultural factors which, in the case of an Aboriginal offender, might cause imprisonment to weigh more heavily upon him. However, as the offence in question was one of sexual penetration without consent, Steytler P observed, at [49]:
'Ordinarily, an offence of this kind, where there is no plea of guilty or other exceptional circumstance, can be expected to result in a term of around 5 or 6 years' imprisonment after allowing for the operation of the transitional provisions. (citations omitted)'
Martin CJ, McLure and Buss JJA agreed with Steytler P in relation to the question of an appropriate sentence.

Ground 1: the standards of sentencing customarily observed with respect to a single count of non-aggravated penile penetration of the vagina

As I have mentioned, the maximum penalty for the offence for non‑aggravated sexual penetration without consent, contrary to s 325(1) of the Code, is 14 years' imprisonment.
By contrast, the maximum penalty for the offence of aggravated sexual penetration without consent, contrary to s 326(1) of the Code, is 20 years' imprisonment.
The standards of sentencing customarily observed with respect to a single count of non-aggravated penile penetration of the vagina, contrary to s 325(1) of the Code, have been referred to by this court in numerous cases. See, for example, Akizuki [68] and Warburton [15] ‑ [20], and my examination of those cases at [101] ‑ [107] above.
In Costa v The State of Western Australia,[22] Mazza JA and I dismissed the appellant's application for leave to appeal against sentence in respect of three offences of sexual penetration without consent, contrary s 325(1) of the Code. We said [49] ‑ [52]:
It is well established that there is no tariff for the offence of sexual penetration without consent. Nor is there any 'hierarchy of sexual penetration' (C v The State of Western Australia [2006] WASCA 261 [35]). Nevertheless, in most cases, penile penetration is usually more serious than cunnilingus.
In The State of Western Australia v Akizuki ([2008] WASCA 267; (2008) 192 A Crim R 373 [68]), Steytler P observed that an average starting point for an unaggravated single offence of penile sexual penetration without consent is around 4 years and 8 months' imprisonment (under the transitional regime) before taking into account factors in mitigation. However, his Honour also noted that the range of potentially aggravating features is so huge that features of that kind can dramatically increase the sentence imposed or have little or no effect. The range of potential mitigating factors is at least equally extensive. They might result in a very large reduction in sentence or little or no reduction.
In The State of Western Australia v Richards ([2008] WASCA 134; (2008) 37 WAR 229 [49]), Steytler P observed that an unaggravated single offence of sexual penetration without consent, where there was no plea of guilty or other exceptional circumstances, could be expected to result in a term of around 5 to 6 years' imprisonment.
In Warburton v The State of Western Australia ([2009] WASCA 113; (2009) 196 A Crim R 361 [11]), Wheeler JA said that a common range of sentences for unaggravated offences of sexual penetration without consent, without taking into account any particular mitigating or aggravating offences, was around 4 to 6 years' imprisonment (under the transitional regime). (original emphasis)
[22] Costa v The State of Western Australia [2019] WASCA 3.
More recently, in The State of Western Australia v Hussian,[23] this court, (Mazza JA, Beech JA and I) made these comments (which are consistent with long standing decisions of this court) about the standards of sentencing customarily observed with respect to a single count of non‑aggravated penile penetration of the vagina, contrary to s 325(1) of the Code:
A sentencing disposition which involves a starting point different from the starting point identified by Steytler P in Akizuki [at [68]] will not necessarily be manifestly excessive or manifestly inadequate. The facts and circumstances of a particular case may require a higher or a lower starting point.
Where an offender is convicted after trial of a single count of non‑aggravated penile penetration of the vagina, a sentence of 5 to 6 years' imprisonment is not unusual. See The State of Western Australia v Richards ([2008] WASCA 134; (2008) 37 WAR 229 [49] (Steytler P; Martin CJ, McLure, Buss & Miller JJA relevantly agreeing)). However, it must be emphasised that a sentence outside that range will not necessarily be manifestly excessive or manifestly inadequate. The circumstances of offending and offenders vary widely. Sentences significantly beyond the range identified in Richards may, having regard to the maximum penalty and the relevant facts and circumstances, be justified in particular cases.
See also, to similar effect, the comments of Mitchell JA, Pritchard JA and I in Kabambi v The State of Western Australia[24] and Lakay v The State of Western Australia.[25]
[23] The State of Western Australia v Hussian [2020] WASCA 186 [119] ‑ [120].
[24] Kabambi v The State of Western Australia [2019] WASCA 44 [22] ‑ [23].
[25] Lakay v The State of Western Australia [2019] WASCA 46 [37] ‑ [38].
It is apparent from the decisions and observations of this court (including the decisions and observations in The State of Western Australia vRichards,[26] Akizuki, Warburton, Kabambi, Lakay and Hussian) that a sentence of 4 to 6 years' immediate imprisonment would not be unusual for a single count of penile penetration of the vagina without consent, contrary to s 325(1) of the Code, where the complainant is of or over the age of 16 and there is no plea of guilty. In recent cases, a sentence of 5 to 6 years' immediate imprisonment has been said to be not unusual in those circumstances.

Ground 1: the standards of sentencing customarily observed with respect to a single count of non‑aggravated digital penetration of the vagina

[26] The State of Western Australia vRichards [2008] WASCA 134; (2008) 37 WAR 229.

In Grubisic v The State of Western Australia,[27] the appellant was convicted, after trial, on one count of sexually penetrating the complainant, without her consent, by inserting his finger into her vagina, contrary to s 325(1) of the Code. He was sentenced to 3 years' immediate imprisonment. The appellant appealed to this court against conviction and sentence. His appeals were dismissed.
[27] Grubisic v The State of Western Australia [2011] WASCA 147; (2011) 41 WAR 524.
The salient facts of the case were these. The complainant was aged 19 and was in Western Australian on a working holiday. She stayed with her uncle and his partner at their house in Boddington. On the night in question the complainant and a friend went to the Boddington Hotel and had a few drinks. The friend introduced the complainant to two men, one of whom was the appellant. Later that evening, the friend invited the two men to return with her and the complainant to the complainant's uncle's house. At the house, the group sat on the front veranda drinking. The complainant's uncle and his partner joined the group. The complainant went inside the house to make a telephone call. She was lying on the bed with the door closed when the appellant came into the room. The primary judge found that the appellant forced himself upon the complainant. It was a frightening assault which the complainant could do nothing to repel. The appellant held the complainant down, kissed her on the neck, rubbed his hand between her legs, ran his hand up her shorts and tried to pull down her underwear. The appellant forcefully inserted his finger into the complainant's vagina causing an abrasion. The primary judge found that the appellant's behaviour was violent and abusive. The appellant was a large and powerful man and he only desisted when the complainant's uncle approached the room. The appellant spoke rudely and cruelly to the complainant by accusing her of 'crying wolf'. The appellant had a prior criminal record which revealed 'a tendency towards violent behaviour'. The appellant was aged 34 at the time of sentencing. He was a scaffolder by trade but was unemployed at the time of the trial.
In this court, Hall J (Pullin JA agreeing) referred approvingly to the observations of Wheeler JA in C as follows [150]:
In C, Wheeler JA noted that penile penetration is often more serious because of the actual or potential harm to the victim, including the risk of pregnancy or a sexually transmitted disease. Penile penetration will also often be perceived by the victim as a more serious affront to personal dignity and bodily integrity. However, there can be very serious cases involving digital penetration, particularly where it is forceful, serious in its consequences or intended to be degrading or humiliating for the victim.
Hall J then reviewed a number of prior cases in which offenders who had been convicted of offences involving digital penetration of the vagina had appealed against their sentences:
In Miles v The State of Western Australia [2010] WASCA 93 a number of cases involving digital penetration without consent were considered: see Jenkins J [43] ‑ [49]. The four cases referred to included Mountain v The State of Western Australia [2009] WASCA 161. In that case the offences were committed in the toilet of a nightclub. The complainant said that she blacked out and that her next recollection was of being on the floor and the offender digitally penetrating her vagina. The offender was found guilty after trial of four counts of sexual penetration and one count of attempted sexual penetration. The four counts of sexual penetration related to four instances of digital penetration of the complainant's vagina and anus. On each count the offender was sentenced, on appeal, to 2 years 4 months' imprisonment. Two of the sentences were to be served cumulatively making a total sentence of 4 years 8 months' imprisonment.
In Cavill v The State of Western Australia [2008] WASCA 108 the offender was convicted following trial of one count of digital penetration. He was acquitted of a number of other offences. He was sentenced to 15 months' imprisonment and his appeal against that sentence was dismissed. Miller JA said that 'the sentence of 15 months' imprisonment was, in all the circumstances, well within the range of sentences that could have been imposed for the offence'. The offender in that case had no prior record of convictions apart from a traffic related matter and was categorised as being a low risk of re offending.
In Church v The State of Western Australia [2007] WASCA 215; (2007) 177 A Crim R 23 the offender pleaded guilty to one count of digital penetration and two counts of indecent dealing with a 16 year old employee. A sentence of 2 years' imprisonment for the offence of digital penetration was imposed. Sentences of 12 months' imprisonment, concurrent, were imposed in relation to each of the indecent dealing offences. An appeal against the sentences was dismissed. The offender in that case was 48 years of age at the time of the offence, had no previous criminal history and had favourable antecedents. The offender had admitted his conduct when interviewed by the police and pleaded guilty.
In Deering v The State of Western Australia [2007] WASCA 212 the offender pleaded guilty to one count of digital penetration of a child aged between 13 and 16 and four counts of penile penetration. The offence of digital penetration was the first to occur and involved penetration of the complainant's vagina by the offender's finger. On appeal the offender's total sentence was reduced to 2 years 6 months' imprisonment. A sentence of 8 months' imprisonment was imposed on the count of digital penetration. The offender was 23 years of age and a lack of consent was not an element of the offences in that case. The offender pleaded guilty on the fast track system and had not been previously imprisoned. In re sentencing the offender Wheeler JA said that a sentence of 18 months' imprisonment was appropriate for the digital penetration but this was reduced to 8 months' taking into account the plea of guilty and adjustments for the transitional provisions.
In Miles the offender was convicted of one offence involving digital penetration of a 17 year old female. The complainant had been intoxicated and fell asleep at a friend's house. She was woken by the appellant, who was lying beside her and two of his fingers were inside her vagina. No force was involved in the offence. The offender was convicted following a trial and sentenced to 2 years' imprisonment. That sentence was held to be within the appropriate range.
In Miles Jenkins J noted that the four earlier cases referred to indicated that the sentences in those cases for offences of digital penetration ranged from 8 months' to 2 years 4 months' immediate imprisonment. It was not suggested that those cases represented the appropriate limits of the range for the exercise of discretion in all such cases. Clearly a sample of four cases was insufficient to reach such a conclusion. In any event, the range of sentences customarily imposed for a particular offence does not establish the range within which sound sentencing discretion may operate; The State of Western Australia v Akizuki [71] (McLure JA).
The court in Grubisic held that the sentence of 3 years' immediate imprisonment was not manifestly excessive. There was little, if any, mitigation. By contrast, there were a number of aggravating factors. Those factors included the differences in the age and strength between the appellant and the complainant; the appellant's use of force; the offending having occurred in the complainant's bedroom where she should have been safe; the appellant having compounded his offence by telling the complainant's uncle that the complainant would bring a false complaint; and the significant distress caused to the complainant by the offending. Hall J expressed the view that the sentence was 'a severe one', but the sentence could be justified in the circumstances of the case [159].
In The State of Western Australia v Vartolo,[28] the State appealed against sentences imposed upon the respondent for two counts of sexual penetration without consent, contrary to s 325(1) of the Code. Each of the offences was committed against the same complainant. The respondent pleaded guilty. The pleas were entered after a trial date had been set. Count 1 involved digital penetration of the complainant's vagina. Count 2 involved penile penetration of the complainant's vagina. The sentencing judge imposed a sentence of 1 year's immediate imprisonment for count 1 and 2 years' immediate imprisonment for count 2. The sentences were ordered to be served concurrently. The total effective sentence was therefore 2 years' immediate imprisonment.
[28] The State of Western Australia v Vartolo [2015] WASCA 53.
The facts of the offending in Vartolo were, relevantly, as follows. On the evening of Friday 26 April 2013, the complainant was drinking with her boyfriend (and another person) at their home unit in Northbridge. During the evening the boyfriend and the other person went into town. The complainant went to bed and fell asleep. Early in the morning of Saturday 27 April 2013, the complainant's boyfriend returned to their home unit, in an intoxicated state, with the respondent. The respondent was, at the time, residing in a backpackers hostel. How the boyfriend and the respondent met was unknown. However, there was no doubt that the complainant and the respondent were complete strangers to each other. The complainant's boyfriend went into the bathroom and fell asleep. The respondent entered the bedroom in which the complainant was sleeping. There, he removed his clothes and laid down beside the complainant. The respondent fondled the complainant's breasts and used his fingers to rub her genitals. The respondent then penetrated her vagina with his fingers (count 1). The respondent continued to rub the complainant's vagina before inserting his penis into her vagina. He then moved on top of her and engaged in sexual intercourse (count 2).

There is a further reason why ground 1 must be dismissed. In my view, ground 1 proceeds from a misunderstanding of the observation by the learned sentencing judge which I have underlined in the quote in [253] above. Her Honour was, with those observations, commencing her assessment of the seriousness of the offence in count 2. She did so on the basis that the act of digital-vaginal penetration was criminal conduct which was equally as serious as a penile-vaginal penetration. By that observation, her Honour was simply conveying that that digital-vaginal penetration warranted the same starting point, in terms of sentence, as a penile-vaginal penetration, before the circumstances of the offending, including all aggravating and mitigating factors, were considered. As is apparent from the balance of the quoted passage at [253], after acknowledging that starting point, the learned sentencing judge then proceeded to consider the circumstances of aggravation and mitigation which existed in this case. Understood in that way, her Honour's approach to the sentencing of the appellant was not erroneous. Indeed, her Honour's observation was entirely consistent with the view expressed by Steytler P in Akizuki (at [286(3)] above) to the effect that nothing was to be achieved by specifying a different starting point for the various categories of sexual penetration without consent, because it should not be assumed that one form of sexual penetration was necessarily more or less serious than another.
As ground 1 is without merit, I would refuse leave to appeal on that ground.[102]
[102] Samuels v Western Australia (2005) 30 WAR 473; [2005] WASCA 193.

Ground 2

This ground of appeal is that the sentence of 3 years and 6 months' immediate imprisonment imposed for count 2 (the sexual penetration charge) was manifestly excessive. (No issue was taken with the sentence imposed in respect of count 1.)
Counsel for the appellant submitted that the sentence imposed in respect of count 2 bore 'no correlation with the type of sentences that have previously been imposed for the digital penetration of a person without their consent'.[103] He referred to Powell v The Queen, Mountain v The State of Western Australia,[104] Miles v The State of Western Australia,[105] Taylor v The State of Western Australia and Lakay v The State of Western Australia,[106] in support of his submission that the sentence imposed in the present case was manifestly excessive. He submitted that the offending in this case bore a number of similarities to that in Powell, Miles and Taylor, and that the differences were not so significant as to require so disparate a length of sentence as that which was imposed. By contrast, counsel for the appellant submitted that the offending in Lakay was materially more serious than the offending in the present case.[107]
[103] Appellant's submissions [37].
[104] Mountain v The State of Western Australia [2009] WASCA 161.
[105] Miles v The State of Western Australia [2010] WASCA 93.
[106] Lakay v The State of Western Australia [2019] WASCA 46.
[107] Appellant's submissions [35].
Counsel for the appellant also submitted that the sentence was manifestly excessive having regard to the circumstances of this case, namely that the offending was of brief duration, occasioned without force (although he accepted that that was because Ms S was asleep) and ended shortly after Ms S awoke and pushed him away.[108] Counsel for the appellant also submitted that the appellant's mental health issues, and his sexual victimisation as a teenager were highly mitigating, and that he had the benefit of youth, which the offenders in Miles and Taylor did not enjoy.[109] Counsel for the appellant also submitted that 'although in some cases, the nature of a digital penetration may be such as to make it indistinguishable in seriousness to a penile penetration, there was nothing about this offending which could justify the characterisation of the offending on that basis'.[110]
[108] Appellant's submissions [34].
[109] Appellant's submissions [36].
[110] Appellant's submissions [37].

Disposition

The principles in relation to an appeal against sentence on the ground that the sentence was manifestly excessive have been set out in numerous cases[111] and are well established. They include:
(1)Sentencing is a discretionary exercise. An appellate court can intervene only if the appellant demonstrates either an express or implied material error. Express error involves acting on a wrong principle, for example by mistaking the law or facts or taking into account an irrelevant matter. Implied error arises where the end result is so unreasonable or unjust that the court must conclude that a substantial wrong has occurred. A ground of appeal which alleges that a sentence is manifestly excessive asserts an implied error.
(2)It is necessary, in determining whether a sentence is manifestly excessive, to examine it from the perspective of the maximum sentence prescribed by law for the relevant offence, the standards of sentencing customarily observed with respect to that offence, the place which the criminal conduct occupies on the scale of seriousness of offences of the kind in question, and the personal circumstances of the offender.
(3)The discretion conferred on sentencing judges is of fundamental importance and this court may not substitute its opinion as to sentencing for that of the sentencing judge merely because it would have exercised the discretion in a different manner. The appellant must demonstrate that the sentence imposed is unreasonable or plainly unjust.
(4)The guidance afforded by comparable cases is flexible rather than rigid. The mere fact that a sentence is within the range of other sentences imposed for similar offending does not necessarily establish that there was an appropriate exercise of the sentencing discretion in the particular case. Similarly, the mere fact that a sentence is outside the range does not necessarily establish that the exercise of the sentencing discretion in the particular case miscarried.
(5)A sentencing range for comparable offences is merely one of the factors to be taken into account in deciding whether an individual sentence is manifestly excessive. A range of sentences customarily imposed is of significance for the purpose of ensuring broad consistency in the sentencing of offenders in broadly comparable cases. However, a sentencing range for comparable cases does not fix the range of a sound exercise of the sentencing discretion in a particular case.
(6)When an appellate court dismisses an appeal against sentence, and when it allows an appeal against sentence and resentences the offender, the court's decision on the sentencing outcome does not, of itself, fix the upper or lower limit of the range.
[111] See, eg, Trainor v The State of Western Australia [2021] WASCA 36, [36]; Ng v The State of Western Australia [2020] WASCA 70, [38] - [40]; Jiang v The State of Western Australia [2020] WASCA 7, [75]; Lakay v The State of Western Australia, [36].
The maximum penalty for an offence contrary to s 325 of the Criminal Code is 14 years' imprisonment. The sentence imposed, of 3 years and 6 months' immediate imprisonment, represented one quarter of the maximum penalty.
Turning next to the cases on which the appellant relied, I bear in mind the observation by Steytler P in Akizuki that because of the almost infinitely variable circumstances of sexual offending and sexual offenders, the guidance to be drawn from sentences imposed in particular cases is very limited. In my view, the cases on which the appellant relied do not support the conclusion that the sentence imposed in this case was manifestly excessive.
Powell v The Queen is an old authority, and needs to be approached with that in mind. The offender, who was 19 years of age at the time, was convicted after trial of one count of digital penetration of a 34 year old complainant. On the night of the offence, a number of people, including the offender, had been at the complainant's house. The offender and the complainant had been drinking alcohol. The complainant had also taken a sedative. She went to bed, and fell asleep. Her 8 year old son was in the same bed. At some stage in the early hours of the morning the offender got into bed with the complainant. She awoke to find him on top of her. He inserted two of his fingers into her vagina. The offending came to an end when the complainant's child awoke. The offender was convicted after trial.
The offence was characterised as serious, but not at the higher end of the scale of seriousness of sexual assaults. It was an isolated act of short duration. There was no abuse of trust involved, but the complainant was in a vulnerable state at the time of the offence and the offender took advantage of that. The complainant was said to have been left in a state of anxiety as she was not entirely certain what had happened to her. The offender had been employed, and was regarded as a valued employee, but he had a long standing substance abuse problem and an extensive criminal record. There was nothing to suggest that he had any remorse for his offending.
The Court concluded that the effective sentence of 5 years' imprisonment was manifestly excessive, set that sentence aside, and imposed a sentence of 3 years' immediate imprisonment. (That sentence equates to 2 years' imprisonment post-transitional.)
Although there are some similarities, in my view the present case involved more serious offending than that in Powell, having regard to the aggravating factors present in this case: the appellant's persistence, the additional vulnerability of Ms S, as a foreigner with limited English language skills, who had only recently arrived in Australia, and the imbalance of power between the appellant and Ms S.
In Mountain v The State of Western Australia, the 38 year old offender was convicted, after trial, of three counts of digital-vaginal penetration, one count of digital-anal penetration, and one count of attempted sexual penetration by an attempted act of fellatio. He was sentenced to a total term of 5 years and 4 months' imprisonment. On each of the counts of digital-vaginal and digital-anal penetration, he was sentenced to 2 years 8 months' imprisonment, and on the attempted fellatio count he was sentenced to 1 year and 4 months' imprisonment. Two of the sexual penetration sentences were ordered to be served cumulatively, and the remainder were to be served concurrently.
The offending occurred at a nightclub. The 19 year old complainant was intoxicated. She went to the toilet, which was a disabled toilet. The lock on the door was not working. The offender walked in and used the toilet. The complainant then blacked out and the next thing she remembered was that she was on the floor, her clothes had been pulled down, the offender was crouching between her legs, and he had his fingers inside her vagina. She tried to resist, without success. The offender then engaged in the various acts of sexual penetration with which he was charged, and the attempted fellatio. He desisted only when a friend of the complainant came knocking at the toilet door.
The appellant had favourable antecedents. The offending was found to be opportunistic. There was a late expression of remorse by the offender, but he had previously claimed the sexual contact was initiated by the complainant.
The appeal was successful on the basis of a factual error by the sentencing judge. In light of that error, the Court, by a majority,[112] considered that the sentences should be set aside, and the offender re‑sentenced. The Court reduced the sentence of 2 years and 8 months' imprisonment for each offence of sexual penetration to 2 years and 4 months' imprisonment, and held that two of those sentences should be served cumulatively. None of the other sentences or the orders for concurrency were varied. The total effective sentence was therefore 4 years and 8 months' immediate imprisonment.
[112] McLure JA, Buss JA agreeing. Miller JA concluded that despite the error, each of the sentences imposed was entirely within the range of sentences that could have been imposed, as was the aggregate sentence, and for that reason concluded that the appeal should be dismissed: [72] - [73].
In my view, the offending in Mountain is not comparable to that in the present case. It is not appropriate to focus on the individual sentences imposed for the sexual penetration counts, divorced from the total effective sentence. The offending in Mountain was undoubtedly very serious, but the offending in the present case was also very serious, by virtue of the aggravating circumstances, and the few mitigating factors.
In Miles v The State of Western Australia, the 17 year old complainant had been staying at a friend's house. She and her boyfriend went to sleep on a foldout bed. The complainant later awoke to find the offender lying on the other side of her to her boyfriend, who was asleep. The offender was moving two of his fingers inside and outside her vagina. The complainant was too scared to do anything. After a short time, the offender withdrew his fingers and turned away. The complainant made a complaint to other persons in the house the next day. The offender denied any wrongdoing. He told police that he was drunk, had gone to sleep on the same bed as the complainant and her boyfriend, that she had grabbed his hand and put it down her pants, near to her vagina, but he denied penetrating her vagina. The offender was convicted after trial. He appealed his sentence of 2 years' immediate imprisonment on the basis that it was manifestly excessive. Leave to appeal was refused.
The offending was assessed as being at the lower end of the range of seriousness for offences of this type. It was of short duration. While it did not involve violence it caused the complainant considerable trauma. The offender was 33 years of age at the time of the offence. He had prior convictions, including for an offence of procuring a child to do a sexual act. The sexual penetration offence was committed whilst the offender was subject to an intensive supervision order for that earlier offence.
In the present case, notwithstanding that the appellant was entitled to some benefit on account of his age and his personal circumstances, the additional aggravating features present in this case, namely the appellant's persistence, and the imbalance of power between the appellant and Ms S, distinguish the offending in count 2 as more serious than that involved in Miles.
In Taylor v The State of Western Australia, the offender was convicted, following a late plea of guilty, of one count of sexual penetration without consent, which involved a vaginal-penile penetration.
The offender, who was 59 years of age, and the 27 year old complainant, who knew each other but were not romantically involved, had been at the house of a mutual friend for New Year's celebrations. In the early hours of the morning, the complainant went into one of the bedrooms, and went to sleep in the bed, wearing a singlet and pants. She awoke to find she was naked, and the appellant was penetrating her vagina with his finger. Initially, the complainant thought that the person penetrating her was her partner, but once she realised that it was the appellant, she rolled away, located her clothes and left the room. The offender maintained that the complainant had consented to the sexual penetration. However, he entered a plea of guilty on the morning of the trial. That plea followed a concession by the State that as the complainant woke up she may have said something to give the offender an honest belief that she was consenting, but that it was unreasonable for him to hold that belief, given that she was waking up at the time.
The offender was sentenced to 3 years' immediate imprisonment. This Court held that that sentence was manifestly excessive. (In addition, as I have already noted, this Court also found that the sentencing judge erred in her conclusion that the digital penetration was only marginally less serious than a penile penetration would have been.) The Court set aside the sentence imposed and instead imposed a sentence of 2 years' immediate imprisonment.
There are some significant features which account for the difference in sentence imposed in Taylor as compared with this case. In Taylor, the offender was given a 15% discount for his plea of guilty. He had no relevant prior criminal record. He was sentenced on the basis that he had an honest, but unreasonable, belief that the complainant was consenting. Furthermore, the offender was assessed as being of borderline intelligence, and consequently lived with cognitive difficulties.
In the present case there were additional aggravating factors not present in Taylor, comparatively fewer mitigating factors, and the appellant did not obtain any discount for a plea of guilty, in contrast to the offender in Taylor. In my view, those important differences account for the different sentencing outcomes.
In Lakay v The State of Western Australia, the 24 year old complainant went with a female friend, M, to a nightclub, where they met with a male friend of M's and some of his friends, including the 30 year old offender. The complainant and the offender danced together and kissed a few times. In the early hours of the morning all of the group returned to M's unit. After socialising and drinking, everyone went to bed. The complainant was sleeping in one of the bedrooms at M's unit. There were not enough bedrooms for everyone. The complainant told the offender that he could sleep in her bed, so he would not have to sleep on the couch. The complainant got into bed fully clothed. The offender also went to bed fully clothed. Before they went to sleep they kissed once or twice, but no sexual touching was involved. Early the next morning the complainant awoke when she felt the offender behind her, sexually penetrating her vagina with his penis. She was shocked and did not know how to react. The penetration occurred for about one and a half to two minutes before the offender withdrew his penis and ejaculated between the complainant's legs. The complainant got out of bed and reported what had occurred, and made a complaint to the police later that day. After trial, the 30 year old offender was convicted and sentenced to 3 years 9 months' immediate imprisonment. Leave to appeal was refused.
The case involved the aggravating features that the victim still feared becoming pregnant because the offender ejaculated between her legs, and there was also the risk of contraction of an STI. The offending occurred because the appellant made a deliberate decision, for his own sexual gratification, to take advantage of the complainant, who was in a defenceless and vulnerable position whilst asleep. The offending also constituted a breach of the trust the complainant placed in the offender when she permitted him to sleep in the bed with her. The complainant provided a victim impact statement in which she outlined how the offending had had a significant adverse impact on her emotional and psychological wellbeing. There were some limited mitigating factors. The offender was of prior good character and had excellent antecedents. The need for personal deterrence was assessed as low.
The present case did not involve the aggravating features of the fear or risk of pregnancy or contraction of an STI which were necessarily present in Lakay. But there were two aggravating features which were not present in that case, namely that the offending involved persistence on the appellant's part, and also involved an imbalance of power between the appellant and Ms S. While the appellant derived some mitigating benefit from his youth, which was not a feature of Lakay, he did not derive the benefit of prior good character. Viewed in the context of these differences, the sentence imposed in Lakay and that imposed on the appellant for count 2 are broadly consistent.

Bearing in mind that the purpose of comparison is to ensure broad consistency in the sentencing of offenders for broadly comparable cases, in my view, when account is taken of the material differences between the present case, and the other cases on which the appellant relied, the sentence imposed in the present case cannot be seen as anomalous.
I next turn to consider all of the circumstances surrounding the commission of the offence in count 2, and to the aggravating circumstances, and to the limited mitigating factors, present in this case. The offending in count 2 was clearly not at the most serious end of the spectrum of offending conduct of this kind. Nevertheless, in my view, this case involved a very serious instance of sexual penetration without consent.
Taking into account the maximum penalty for count 2, the facts and circumstances of the offending, the appellant's personal circumstances, the aggravating circumstances, the limited mitigating factors present in this case, the significant psychological trauma suffered by Ms S, and having regard to the sentences imposed in the cases relied on by the appellant (bearing in mind the material differences between those cases and this one) I am not persuaded that the sentence of 3 years and 6 months' imprisonment which was imposed in this case was unreasonable or plainly unjust.
Leave to appeal on ground 2 should therefore be refused.
The appeal must therefore be dismissed.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
AHM
Research Associate to the Hon President Buss
23 APRIL 2021