Singh v The State of Western Australia - [2017] WASCA 47

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE COURT OF APPEAL (WA)

CITATION: SINGH -v- THE STATE OF WESTERN AUSTRALIA [2017] WASCA 47

CORAM: BUSS P
MAZZA JA
BEECH J

HEARD: 2 MARCH 2017

DELIVERED : 16 MARCH 2017

FILE NO/S: CACR 135 of 2016

BETWEEN: SIMARDEEP SINGH
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent

ON APPEAL FROM:
Jurisdiction              :  DISTRICT COURT OF WESTERN AUSTRALIA
Coram  :SWEENEY DCJ
File No  :IND 146 of 2016

Catchwords:

Criminal law and sentencing - Offences of sexual penetration without consent and indecent assault - Offender was a taxi driver, victims were his passengers - Total effective sentence 5 years 6 months' imprisonment - Whether sentence offends first limb of the totality principle

Legislation:

Nil

Result:

Leave to appeal on grounds 1 and 2 refused
Appeal dismissed

Category: D

Representation:

Counsel:

Appellant: Mr S Watters
Respondent: Mr B Murray

Solicitors:

Appellant: Mark Andrews Legal
Respondent: Director of Public Prosecutions (WA)

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

Chadd v The State of Western Australia [2013] WASCA 99
GHK v The State of Western Australia [2014] WASCA 19; (2014) 238 A Crim R 178
Giglia v The State of Western Australia [2010] WASCA 9
Knott v Moriarty [2010] WASC 36
Munmurrie v The State of Western Australia [2013] WASCA 167
Roffey v The State of Western Australia [2007] WASCA 246
The State of Western Australia v Akizuki [2008] WASCA 267; (2008) 192 A Crim R 373
The State of Western Australia v Richards [2008] WASCA 134; (2008) 37 WAR 229
The State of Western Australia v Vartolo [2015] WASCA 53
Victor v The State of Western Australia [2011] WASCA 94
Warburton v The State of Western Australia [2009] WASCA 113

REASONS OF THE COURT: The appellant was convicted, on his plea of guilty, of two counts of indecent assault and one count of sexual penetration without consent. He committed these offences against passengers while he was working as a taxi driver. He was sentenced to terms of immediate imprisonment of 18 months and 2 years for the counts of indecent assault, and 4 years for the sexual penetration without consent. The sentencing judge made the 18‑month term cumulative on the 4 year head sentence and the 2‑year term wholly concurrent, resulting in a total effective sentence of 5 years 6 months' immediate imprisonment with eligibility for parole.
The appellant appeals against sentence on three grounds. First, he asserts the sentencing judge failed to adequately state the factual basis upon which she was sentencing the appellant. Secondly, he asserts that the sentence on the first count of indecent assault was manifestly excessive. Thirdly, he complains that the total effective sentence breached the first limb of the totality principle. Leave to appeal has been granted in relation to ground 3, and the application for leave on the other two grounds was referred to the hearing of the appeal.[1]
[1] Order of Mazza JA on 16 October 2016.
For the reasons that follow, in our opinion, none of the grounds of appeal has been made out. Consequently, we would dismiss the appeal.

The facts

The following facts, stated by the prosecutor, were admitted by counsel for the appellant before the sentencing judge.[2]
[2] ts 14.
Count 1 occurred in the early hours of the morning on 8 January 2011. The appellant was 26 years of age at the time of the offending.[3] He worked as a taxi driver for Swan Taxis, and was driving down Beaufort Street, Northbridge, when he was waved down by the first complainant opposite the Court Hotel. The time was approximately 12.30 am.[4]
[3] ts 10.
[4] ts 10.
The complainant got into the front seat of the taxi. As she did, the taxi driver said something to the effect of, 'Oh my God, you're so beautiful.' The complainant ignored the comment, told the appellant to go to Ballajura and gave him directions. The appellant drove and made general conversation with the complainant.[5]
[5] ts 10.
He placed his left hand on the complainant's seat, resting it next to her while driving. The appellant moved his left hand and ran his fingertips in a smooth motion along the complainant's skin from the top of her knee up to where her shorts started at the upper thigh. The appellant was staring at the complainant whilst doing this.[6]
[6] ts 10.
The appellant started asking the complainant questions relating to her sex life. The complainant stated that she had a partner and that she was a lesbian. When the appellant heard this he put his right hand on to her leg and started to give her leg a gentle squeeze as if he were trying to turn her on. Whilst doing this the appellant said, 'Most lesbians are butch, you are much too pretty to be a lesbian.' The complainant moved herself as close to the passenger door as possible and attempted to cower away from him.[7]
[7] ts 11.
During this interaction the appellant was driving in the wrong direction to the complainant's home. He turned off the main street and into a suburban street, drove past a park, and asked the complainant if she would like to do something with him, but she stated she had to get home to her mum who was waiting for her.[8]
[8] ts 11.
The appellant started asking the complainant questions in relation to her sexual habits. The appellant was regularly touching himself and rubbing his groin throughout the journey. The complainant realised that, because of the way her body was positioned, her shorts had risen quite high and the appellant was staring at her legs and buttocks.[9]
[9] ts 11.
The complainant sat back in the seat normally. As she did this the appellant reached over to her right leg with his hand and started stroking his hand back and forth very gently over the complainant's bare upper thigh in a sexual manner. The complainant told him to stop and he moved his hand away and placed it onto the complainant's seat resting it against her right leg.[10]
[10] ts 11.
As the appellant approached the complainant's home, he turned off the meter and asked the complainant if she wanted to go somewhere with him. The complainant said, 'No', she just wanted to go home. The appellant dropped her at her home address at Ballajura at about 1.00 am. The complainant said she would have to pay by credit card. The appellant said, 'We could come to an arrangement' but the complainant said, 'No' and paid by credit card.
As she was getting out of the vehicle the appellant put his hand out towards her in a gesture to shake her hand. The complainant did this as she just wanted him to go.[11] As she shook his hand the appellant gripped her hand and pulled on it to get her closer to him. The complainant pulled back and the appellant let go. She ran inside the house and the appellant drove off. The complainant reported the incident to Swan Taxis that night. Swan Taxis contacted the police a couple of days later.[12]
[11] ts 12.
[12] ts 12.
Count 2 occurred the same evening approximately 25 minutes after count 1. The complainant was 18 years of age at the time of the offence.[13]
[13] ts 12.
At about 1.25 am the appellant was driving through Northbridge when he was waved down by the complainant and her friend on the corner of Lake Street and James Street. The appellant picked them up and they both sat in the rear of the taxi. They asked the appellant to drive them to Dianella where the complainant's friend got out.[14]
[14] ts 12.
The appellant told the complainant she needed to sit in the front seat so the taxi camera could see her. She complied and moved to the front seat. The appellant started driving and reached over with his left hand to the complainant and grabbed her right hand which was by her side on the seat.[15]
[15] ts 12.
The complainant attempted to move her hand but the appellant held it until she pulled her hand across her body away from him and he let go. The appellant started saying things like, 'You are very pretty. You're beautiful.' The appellant asked the complainant if she had a boyfriend and she replied, 'Yes'.[16]
[16] ts 12.
The appellant drove a little further to a nearby street and stopped at a park saying he needed to check something. The complainant got out to have a cigarette. She went to a bench in the park and sat down with her back to the taxi. Whilst the complainant was having a cigarette the appellant walked over, sat down next to her and asked her general questions about herself.[17]
[17] ts 12.
He put his right hand on top of her left hand and then placed her hand onto his groin. He held on to her hand firmly and pushed it against his groin. The complainant could not move her hand away. She started yelling at him saying, 'Get the fuck off me' and, 'Fuck off. Don't'.[18] The appellant told her to relax. When she got up to leave, he held on to her hand and pushed her back onto the bench so she was lying on her back.[19]
[18] ts 12.
[19] ts 13.
The appellant lay over the top of the complainant, grabbed her wrists with each of his hands and pinned her arms to her side. The complainant struggled but could not move or get free. The appellant started rubbing his groin against the complainant's crotch, by thrusting his hips as if he was simulating sex with her.[20]
[20] ts 13.
The appellant ripped the complainant's underwear off with one hand whilst still holding her down. He threw her underwear to one side. He pulled his pants down. The complainant said, 'Please don't do this'. The appellant replied, 'You'll enjoy it, you'll like it'. The appellant put his body on top of the complainant and starting pushing his penis against the complainant's crotch until his penis entered her vagina. He started rocking his hips back and forth and having sexual intercourse with the complainant.[21]
[21] ts 13.
Whilst doing this the appellant started kissing the left side of the complainant's neck and squeezing her breasts from the outside of her clothing. The appellant continued to have sexual intercourse with the complainant until he ejaculated inside her. After he ejaculated he stood up and pulled his pants up.[22]
[22] ts 13.
The complainant found her underwear, put it on and walked back to the taxi. The complainant got back into the taxi with the appellant. She directed him to a location in Morley where she got out. The appellant drove off.[23]
[23] ts 13.
The complainant reported the matter to police immediately.
Later on the same day, detectives from the Sex Assault Squad located the appellant and he was conveyed to the Sex Assault Squad offices. He participated in an electronic video record of interview, but declined to answer any questions. He was released without charge.[24]
[24] ts 13.
On 9 January 2011, just before 1.00am, he boarded a plane leaving Perth International Airport heading to India.[25] After a formal extradition was concluded, he was taken into custody in India on 24 March 2015.[26]
[25] ts 13.
[26] ts 14.

Personal circumstances

The appellant's personal circumstances were outlined in a psychological report, and in his counsel's submissions to the sentencing judge. Relevantly, they may be summarised as follows:
(1)The appellant was 31 at the time of sentencing and 27 at the time of the commission of the offences.
(2)He was born and raised in India as part of a Sikh community. He grew up in a supportive environment with both his parents.
(3)When the appellant was young, his father suffered a serious injury to his back and was unable to work as a result. That led to significant financial challenges for the family.
(4)The appellant attended school to the end of year 10, and was a good student. Thereafter he went to college and then to university, gaining a Bachelor's degree. He spent time trying to improve his English in order to apply for a student visa to Australia. When he was 24 years old, he obtained a visa and came to Australia.
(5)In Australia, he completed a Masters degree in computer science. He also worked part time as a taxi driver while he studied.
Before the sentencing judge, his counsel emphasised cultural factors as relevant to an understanding of the appellant's offending. It was said that the appellant had little to no experience with women, and that sex was not a topic of discussion with girls, his family, friends or in his education. Counsel referred to different cultural attitudes in India about how women dressed and what a woman's manner of dress might convey.[27]
[27] ts 17 ‑ 21.
The sentencing judge had the benefit of a psychological report and a pre‑sentence report. In interviews for both reports, the appellant denied committing the offences, saying that he was pleading guilty as he did not have the money to go to trial, or that he wanted to minimise his sentences. He denied much of the conduct alleged against him and claimed that the sexual intercourse was consensual.
The author of the psychological report explained the difficulties that denial created for the assessment of the risk of reoffending. She assessed the risk of reoffending as being in the moderate to high range.[28]
[28] Psychological report [15], [17], [20].

Sentencing remarks

Given the nature of the grounds of appeal, it is not necessary to detail all aspects of the sentencing judge's remarks. They include the following:
(1)The judge stated that, as the detailed facts had been read aloud, she would not repeat them, but incorporated them into the sentencing comments.[29] That is the subject of ground 1 of the appellant's grounds of appeal.
[29] ts 32.
(2)The victim impact statement from the victim of count 1 revealed how scared she had felt, and the significant ongoing effects of the incident on her.
(3)Although there was no victim impact statement from the victim of counts 2 and 3, the State informed the sentencing judge that the victim said she was suffering anxiety attacks and had difficulty leaving the house.
(4)The judge referred to the appellant's personal circumstances and to the two reports, including the psychological report assessment of a moderate to high risk of reoffending.[30]
[30] ts 35.
(5)The judge referred in some detail to counsel's submissions about cultural influences on the offending, observing that such matters were not free of controversy in India. Nonetheless, her Honour accepted that the appellant's cultural background and how he had been raised was likely to have played a role in his offending.[31]
[31] ts 35 - 37.
(6)However, her Honour emphasised that this was not a case of a person mistakenly assuming that his attention to these young women was welcome. Both women gave unambiguously clear indications that they were not interested and not willing. In the face of that, the appellant physically forced his attentions on them. Further, afterwards he behaved as a man who knew he had done the wrong thing, misleading the police in various respects.[32]
[32] ts 37.
(7)The judge allowed a 25% discount for the plea of guilty, notwithstanding her finding that the case was so strong that she described the prospects of an acquittal as 'pretty much non‑existent'.[33]
[33] ts 38.
(8)The judge gave credit for the 4 and a half months spent in difficult conditions in prison in New Delhi, and for the fact that being in prison in Australia will be more difficult for him than a person who would receive regular visits from family and friends.[34]
[34] ts 38.
(9)The judge also took into account, in the appellant's favour, his previous unblemished record and general good character.[35]
(10)The judge identified the following aggravating circumstances of the appellant's offending:
(a)The appellant was a taxi driver. Taxi drivers are entrusted to get people home safely, including young women, and including those who might be drunk.[36]
(b)Both victims were young women who were vulnerable. The victim in counts 2 and 3 was made more vulnerable by the fact she was intoxicated.[37]
(c)There was an element of physical force involved in counts 2 and 3. When the victim tried to get off the bench, the appellant pushed her back onto the seat, following which he raped her.
(d)There was nothing to suggest that the appellant used any form of protection, so the victim would have also suffered the additional anxiety of being vulnerable to pregnancy and the communication of sexually transmitted diseases. The appellant violated her with no regard for her rights as a person.[38]
(e)While count 1 was less serious, it was persistent. The victim made clear that she was not interested in the appellant, but he nevertheless persisted.[39]
(11)The dominant sentencing consideration was to impose a sentence that deterred the appellant and others from sexually offending against women.[40]
[35] ts 38.
[36] ts 39.
[37] ts 39.
[38] ts 39.
[39] ts 39 ‑ 40.
[40] ts 40.
The sentencing judge imposed terms of 4 years' imprisonment on count 3, 2 years' imprisonment on count 2, concurrently with count 3, and 18 months' imprisonment on count 1, to be served wholly cumulatively. Thus, there was a total effective sentence of 5 years 6 months' immediate imprisonment.
The appellant was made eligible for parole. The sentence was backdated to commence on 24 March 2015, the date he was first taken into custody in India.
We will deal with each ground of appeal in turn.

Ground 1: failure to adequately state the factual basis for sentencing

Ground 1 asserts that the judge's sentencing discretion miscarried, in that her Honour failed to adequately state the factual basis upon which she was sentencing the appellant.[41]
[41] Appellant's submissions [59], [62]; appeal ts 2 ‑ 3.
For the reasons that follow, this ground is devoid of merit and should not have been argued.
The appellant's complaint on ground 1 is, by its nature, one of inadequacy of reasons: that the judge's sentencing remarks did not adequately disclose the reasoning process that underpinned the sentence her Honour imposed. The appellant argues that the judge's failure to state the facts means that he (and, we would add, an appeal court) is left uncertain as to the facts upon which the judge sentenced him.[42] Expressing the appellant's contention in this way makes its lack of merit immediately apparent.
[42] Appellant's submissions [37] ‑ [39], [43], [50] appeal ts 3.
After the appellant pleaded guilty, the prosecutor stated the facts of the offending. Counsel for the appellant said to the sentencing judge that the appellant admitted those facts.[43] In those circumstances, there is no error in her Honour's approach in stating that she adopted and incorporated the facts that had been stated by the prosecutor. No one, including the appellant, could be or could have been in any doubt as to the facts of the offending determined by the sentencing judge for the purpose of the process of sentencing. Those facts were the facts that had been stated by the prosecutor and admitted by the defence.
[43] ts 14.
The appellant's submissions invite the court to ignore substance and focus exclusively on a matter of form. The appellant's complaint is that the sentencing judge failed to state the facts. The appellant accepts that had the judge repeated, verbatim, the facts stated by the prosecutor, there could be no complaint.[44] But, in substance, that is precisely what the judge did by the shorthand mechanism of incorporation by reference. Incorporation by reference unambiguously adopts the incorporated material as part of the reasons into which it is incorporated.
[44] Appeal ts 3, 5.
For these reasons, ground 1 is without merit. We would refuse leave to appeal in relation to ground 1.

Ground 2: was the sentence on count 1 manifestly excessive?

The following principles are well‑established.
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 usually involves 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. Thus, an appellate court cannot substitute its own opinion for that of the sentencing court merely because the appellate court would have exercised a sentencing discretion differently.
2.A ground of appeal alleging that a sentence is manifestly excessive asserts an implied error. In determining whether a sentence is manifestly excessive it is necessary to examine it having regard to 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, and the personal circumstances of the offender.
3.The range of sentences customarily imposed for a crime does not establish the range of a sound exercise of the sentencing discretion. The guidance afforded by comparable cases is flexible rather than rigid. Sentences customarily imposed in comparable cases provide a yardstick or reference point for ensuring broad consistency in sentencing, bearing in mind the scope for significant variations in relevant sentencing factors, and that there is no single correct sentence. What is important is the unifying principles which sentences imposed in comparable cases reveal and reflect.
4.When this court dismisses an appeal against sentence, and when it allows an appeal against sentence and resentences the offender, this court's decision on the sentencing outcome does not, of itself, fix the upper or lower limit of the range.
5.There is no tariff for sexual offences because of the enormous range of conduct which can come within the description of the offences and the great variation in the personal circumstances of the offenders.

The appellant emphasises that the conduct the subject of count 1 was a form of touching on the victim's upper thigh, and submits that, given the plea of guilty for which a 25% discount was given, the term of 18 months was manifestly excessive.[45]
[45] Appeal ts 12 - 13.
The appellant relies on two decisions in support of his contention that the sentence on count 1 was manifestly excessive: Victor v The State of Western Australia[46] and Knott v Moriarty.[47]
[46] Victor v The State of Western Australia [2011] WASCA 94.
[47] Knott v Moriarty [2010] WASC 36.
Reference to these decisions does not assist the appellant. Two decisions falls well short of establishing any discernible sentencing patterns. Moreover, Knott was not a decision of this court. Comparable cases are to be identified from appellate decisions. Further, these cases are of limited use as comparable cases as the circumstances of the offences and of the offenders are significantly different from the present case. In Victor, the offender, who pleaded guilty, had already spent 7 months in custody when he came to be resentenced. He was remorseful. The offence was out of character. He was assessed as having a small chance of reoffending and good prospects of rehabilitation. In all these respects the offender had mitigating factors that do not apply to the appellant. Again, in Knott, there were considerations reducing the length of the term that do not apply to the present case. The 7‑month term of immediate imprisonment was ordered to be served cumulatively on other offences. Further, the offender, who pleaded guilty, suffered from a mental impairment and exhibited genuine remorse.
The maximum sentence for an offence of indecent assault is 5 years' imprisonment. The appellant's offence in count 1 had a number of serious elements, including the following. He was in a position of trust as a taxi driver. His victim was a vulnerable young woman. She did not have the option of getting out of the car until she got home. His offending was part of a course of conduct that persisted for almost the entire 28 minutes that the victim spent in the car with him. He persisted notwithstanding the victim making repeated efforts to make clear to him that she was not interested in him. His offending has had a significant impact on her. His offence in count 1 was not an isolated or once‑off aberration; very soon after it, he committed counts 2 and 3. He was assessed by the author of the psychological report as having a medium to high risk of reoffending, a conclusion accepted by the sentencing judge and not challenged on appeal.
In all these circumstances, it cannot be said that the sentence imposed for count 1 was manifestly excessive.

Ground 3: was the totality principle infringed?

Ground 3 asserts that the total effective sentence of 5 years 6 months' immediate imprisonment imposed infringed the first limb of the totality principle.
Relevantly, the totality principle requires the effective sentence to be a just and appropriate reflection of the total criminality involved in all the relevant offences, viewed in their entirety, and having regard to the circumstances of the case, including the offender's circumstances.[48] The matters referred to in [41] above apply in determining whether the totality principle has been infringed.
[48] Roffey v The State of Western Australia [2007] WASCA 246 [24].
Where there is a challenge on totality grounds, the severity of a sentence imposed on an individual count generally falls to be assessed in light of the sentences imposed in respect of the other counts and its contribution to the total effective sentence. A heavy sentence may be softened by an order that it be served concurrently with sentences imposed in relation to the other counts. A relatively light sentence may, as a practical matter, have increased severity if it is ordered to be served cumulatively. The real question is whether the total effective sentence is excessive.[49]
[49] Giglia v The State of Western Australia [2010] WASCA 9 [40].
The utility of comparable cases in determining questions of totality may, at times, be limited to providing very broad guidance because there will often be significant differences in the circumstances of the offending and the offenders.[50] Nevertheless, it remains appropriate to consider other comparable cases to ensure broad consistency and to avoid sentencing becoming idiosyncratic and arbitrary.[51]
[50] Chadd v The State of Western Australia [2013] WASCA 99 [45].
[51] The State of Western Australia v Akizuki [2008] WASCA 267; (2008) 192 A Crim R 373 [68] ‑ [69]; GHK v The State of Western Australia [2014] WASCA 19; (2014) 238 A Crim R 178 [122].
After a detailed review of cases of sentencing for sexual offending, Steytler P drew the following conclusions in Akizuki:[52]
As might have been anticipated, this review of the cases reveals that the circumstances of sexual offending, and of sexual offenders, are almost infinitely variable. That, in turn, means that 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, some conclusions can be drawn, as follows:
(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).
That seems to me to be about as much guidance as can be obtained from the cases. I appreciate that it is less than sentencing judges might wish. However, that is 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.
[52] Akizuki [68] - [69].
In a case 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.[53] It is important to emphasise that that does not mean that a sentence outside that range is thereby manifestly excessive (or inadequate). The circumstances of offending vary widely. The available maximum sentence must not be overlooked. Sentences well beyond that range may be justified by the circumstances of the case.[54]
[53] The State of Western Australia v Richards [2008] WASCA 134; (2008) 37 WAR 229 [49].
[54] See, for example, Warburton v The State of Western Australia [2009] WASCA 113 [21].
The appellant emphasises his good antecedents and pleas of guilty.[55]
[55] Appeal ts 13, 16.
The appellant relies on two decisions in support of his contention that his total effective sentence infringed the first limb of the totality principle: The State of Western Australia v Vartolo[56] and Munmurrie v The State of Western Australia.[57] As we have said, two cases fall well short of being sufficient to establish any identifiable sentencing patterns. In any event, the differences between those cases and the present case mean that these decisions also fall well short of sustaining a conclusion that the appellant's total effective sentence reveals implied error.
[56] The State of Western Australia v Vartolo [2015] WASCA 53
[57] Munmurrie v The State of Western Australia [2013] WASCA 167.
In Vartolo, the offender, who pleaded guilty, twice penetrated a woman asleep in her bedroom: first digitally and then by engaging in penile sexual intercourse. The State's appeal against the total effective sentence of 2 years was upheld. This court resentenced the offender to 2 years' immediate imprisonment on count 1 and 3 years 6 months' immediate imprisonment on count 2, to be served concurrently. The appellant's offending in this case has some elements that are more serious than the offending in Vartolo. The appellant offended against two victims. The appellant's offending was considerably more protracted. In the case of counts 2 and 3, the appellant was met with resistance from the victim, but used force to overcome it.
In Munmurrie, the offender was convicted after trial of attempted sexual penetration without consent, and aggravated sexual penetration without consent. The second of those offences involved penile penetration of the vagina. The offence was aggravated because the victim suffered bodily harm, the maximum penalty for which is 20 years' imprisonment. The offences were committed on the same night against one victim. The offender was aged 18 at the time of the offending. The sentencing judge imposed terms of immediate imprisonment of 2 years 6 months and 4 years 3 months respectively, to be served concurrently. Reference to a single case in which the appeal against sentence was dismissed does not fix the boundaries of the sentencing discretion. Departure from the customary standards of sentencing is not established by identifying a case which might be seen as comparable in which the court declined to interfere with a lesser sentence.
In our view, the aggravating features of the offending identified by the sentencing judge place the total effective sentence of 5 years 6 months' immediate imprisonment well within an appropriate exercise of discretion. Matters supporting that conclusion include the following. The appellant was a taxi driver, a role that has an element of trust. Both his victims were vulnerable young women; one of them was all the more vulnerable by reason of intoxication. The offending was persistent in the face of clear statements by the victims that they were not interested in him and for him to stop what he was doing. The appellant responded to the second victim's resistance by using force. He had unprotected sexual intercourse with the young victim of count 3. Count 2 in itself was a serious offence of indecent assault. The appellant's offending the subject of counts 2 and 3 followed soon after his conduct the subject of count 1. Rebuffed by his first victim, he forced himself upon another young female passenger. Count 3, standing alone, had many serious elements that could have justified a somewhat higher sentence. The appellant had a medium to high risk of reoffending. Personal deterrence remained an important factor.
In all these circumstances, we are not persuaded that the total effective sentence of 5 years 6 months' immediate imprisonment is unreasonable or plainly unjust.
For these reasons, we would dismiss ground 3.

Conclusion

For the reasons we have stated, we would refuse leave to appeal on grounds 1 and 2, and dismiss the appeal.