Musgrave v The State of Western Australia

The Court of Appeal of Western Australia dismissed an appeal against sentence brought by the appellant, Darcy Lenard Musgrave, who was convicted of sexually penetrating a woman without her consent. The woman was asleep at the time of the offending. The Court of Appeal held that the trial judge did not err in characterising the offence as no less serious by the fact that it was a digital penetration than it would have been had it been a penile penetration. The Court held that the trial judge was correct to find that the seriousness of every offence of unlawful sexual penetration must be determined by its own individual circumstances. The Court of Appeal also held that the sentence of 3 years and 6 months' immediate imprisonment was not manifestly excessive. The Court of Appeal found that the sentence was not unreasonable or plainly unjust, having regard to the maximum penalty for the offence, the standards of sentencing customarily observed with respect to a single count of non-aggravated digital penetration of the vagina, the place which the criminal conduct occupied on the scale of seriousness of offences of the kind in question, and the personal circumstances of the offender.