Taylor v The State of Western Australia - [2019] WASCA 217

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT :   THE COURT OF APPEAL (WA)
CITATION:   TAYLOR -v- THE STATE OF WESTERN AUSTRALIA [2019] WASCA 217
CORAM:   BUSS P
MAZZA JA
BEECH JA

HEARD:   20 DECEMBER 2019
DELIVERED          :   20 DECEMBER 2019
PUBLISHED           :   9 APRIL 2020
FILE NO/S:   CACR 209 of 2018
BETWEEN:   GARRY EDWARD TAYLOR
Appellant

AND

THE STATE OF WESTERN AUSTRALIA
Respondent

ON APPEAL FROM:
Jurisdiction              :   DISTRICT COURT OF WESTERN AUSTRALIA
Coram:   BURROWS DCJ
File Number            :   IND 1912 of 2017

Catchwords:

Criminal law - Appeal against sentence - Appellant convicted on his plea of guilty of digitally penetrating the complainant's vagina without her consent - Appellant aged 59 and complainant aged 27 - Sentence of 3 years' immediate imprisonment - Appellant had an honest but unreasonable belief that the complainant was consenting - Appellant had an intellectual impairment - Personal and general deterrence - Whether the sentencing judge erred in characterising the appellant's digital penetration as only marginally less serious than a count of penile penetration - Appellant's degree of risk of sexual reoffending - Manifest excess

Legislation:

Criminal Code (WA), s 325(1)

Result:

Leave to appeal granted on grounds 1 and 2
Leave to appeal refused on ground 3
Appeal allowed
Sentencing decision of the primary judge set aside
Appellant resentenced

Category: D

Representation:

Counsel:

Appellant	:	Ms H E Prince
Respondent	:	Mr B M Murray

Solicitors:

Appellant	:	Helen Prince
Respondent	:	Director of Public Prosecutions (WA)

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

Barbaro v The Queen [2014] HCA 2; (2014) 253 CLR 58
Bennell v The State of Western Australia [2011] WASCA 174
BGE v The State of Western Australia [2013] WASCA 136
C v The State of Western Australia [2006] WASCA 261
Cavill v The State of Western Australia [2008] WASCA 108
Greenland v The State of Western Australia [2017] WASCA 83
Grubisic v The State of Western Australia [2011] WASCA 147; (2011) 41 WAR 524
Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665
McNally v The State of Western Australia [2019] WASCA 93
Miles v The State of Western Australia [2010] WASCA 93
Mountain v The State of Western Australia [2009] WASCA 161
PAS v The State of Western Australia [2009] WASCA 210
The State of Western Australia v Akizuki [2008] WASCA 267

JUDGMENT OF THE COURT:

The appellant appeals against sentence.
The appellant was convicted, on his plea of guilty before Burrows DCJ in the District Court, of one count in an indictment.
The count pleaded that on 1 January 2017, at Innaloo, the appellant sexually penetrated the complainant without her consent, by penetrating her vagina with a part of his body, contrary to s 325(1) of the Criminal Code (WA) (the Code).
On 12 October 2018, the sentencing judge imposed a sentence of 3 years' immediate imprisonment. The sentence was backdated to 11 October 2018. A parole eligibility order was made.
On 20 December 2019, at the conclusion of the hearing of the appeal, this court made orders, relevantly, as follows:
(1)Leave to appeal granted on grounds 1 and 2.
(2)Leave to appeal refused on ground 3.
(3)Appeal allowed.
(4)The sentencing decision of the sentencing judge is set aside.
(5)The appellant is resentenced to 2 years' immediate imprisonment with eligibility for parole.
(6)The new sentence is backdated to 11 October 2018.
When we made those orders we said that our reasons for judgment would be published at a later date. These are our reasons.

The facts and circumstances of the offending

At the time of the offending the appellant was aged 59 years and the complainant was aged 27. They knew each other as a result of their involvement in a local sporting club, but they had never been in any form of relationship.
In the early hours of 1 January 2017, the appellant and the complainant went to a mutual friend's house to continue New Year's Day celebrations. Both the appellant and the complainant had been drinking alcohol. Other people were present at the house but they left at about 4.00 am.
After the other people left his house, the mutual friend did not notice the appellant and believed that he had also left the premises.
At about 5.00 am, the complainant went into the master bedroom, removed her bra and went to bed in a singlet and pants. She covered herself with a doona and fell asleep.
The mutual friend, while visiting the toilet, observed the complainant in his bed, covered by the doona and asleep.
The complainant awoke. She was naked and lying on her back. The appellant was penetrating her vagina with his finger. Initially, the complainant believed that the person penetrating her was her partner. Once she realised who the man was, she rolled away and, after finding her singlet and pants, went to the front of the house.
The mutual friend saw that the complainant was crying and upset as she left the house and walked to her car. Shortly afterwards, the complainant reported the assault to police.
On 6 January 2017, the appellant was arrested. He participated in an electronically recorded interview with police. The appellant admitted getting into bed with the complainant and digitally penetrating her vagina. However, he asserted that the penetration was consensual.
Initially, the appellant pleaded not guilty. A trial date was set. The appellant entered his plea of guilty on the morning the trial was to begin. The plea was entered following a concession by the State that 'there was a period of time during which the complainant was in the process of waking and the complainant may have said something or done something that may have given [the appellant] an honest belief that she was consenting, but that it was unreasonable [for the appellant] to hold that belief given that she was in the process of waking at the time'.
The sentencing judge said that she would sentence the appellant in accordance with the State's concession.

The appellant's personal circumstances and antecedents

At the time of sentencing the appellant was aged 61 years. He was born in New South Wales. His father abused alcohol and was violent towards the appellant, his siblings and their mother. When the appellant was aged 14 his parents separated. The appellant lived with his father. The father's violence towards the appellant and his siblings continued. When he was aged 17 the appellant began living independently of his father. There was no further contact between them.
When the appellant was aged 28 years he located his mother who was then living in Western Australia. The appellant began living with her. He cared for his mother until her death on 20 July 2018. The sentencing judge recognised that his mother's death has had a significant impact upon the appellant.
The appellant left school after year 10. He was then aged 17 years. He had repeated two years at school because of learning difficulties. The appellant was educated in remedial or special classes. After leaving school, the appellant was employed in a number of different occupations, including in factories and timber yards and as a cleaner.
The appellant has been involved in three intimate relationships. One of those relationships was extremely brief. Another relationship lasted for about four years and ended in 1975 when the appellant was imprisoned. The third relationship began when the appellant was aged in his mid‑thirties and lasted for about three years. The relationship produced a son. The appellant had contact with his son shortly after the relationship ended. However, since that time they have not had any contact. It was suggested that the appellant had other children with whom he had no contact.
The appellant has a history of alcohol addiction and abuse.
The appellant has not consumed alcohol since he suffered a heart attack in June 2018. He was admitted to hospital for about 14 days for treatment of the heart attack. On 26 June 2018, surgery was performed to insert two stents into his heart. The appellant takes medication for his heart. A report from Dr Yin Yin Wee that was before the sentencing judge indicated that the appellant had an appointment on 13 September 2018 at Sir Charles Gairdner Hospital to discuss the possibility of further surgery in relation to his heart. Her Honour was not informed of what had occurred at the appointment or subsequently.
The appellant has reduced kidney function and is receiving treatment for that condition.
The appellant has a prior criminal record. His previous convictions are relatively minor and, with one exception, occurred between 1975 and 1985. The exception is that in 1998 the appellant was convicted of driving a motor vehicle while his licence was under fines suspension.

The psychological report and the pre‑sentence report

The information before the sentencing judge included a psychological report dated 16 December 2018 from Ms Tanina Oliveri, a clinical and forensic psychologist, and a pre-sentence report dated 8 October 2018.
When the offending occurred, the appellant had been drinking alcohol. The appellant gave this account to Ms Oliveri about his use of alcohol:
[The appellant] advised that he was 18 years old when he first used alcohol with others. He reported that he used it socially about twice a week and he never considered his use to be a problem, because he consumed minimal amounts. He noted that he had not used it since he experienced a heart attack in June 2018. …He stated that although he had consumed alcohol on the night of the current offence, he denied that his consumption was a problem, as he asserted that he had consumed very little on the night.
However, contrary to what the appellant told Ms Oliveri, defence counsel contended before her Honour that the appellant was intoxicated when the offending occurred (ts 37). Also, what the appellant told Ms Oliveri about the extent of his alcohol consumption on the night in question was inconsistent with what the appellant had told police on 6 January 2017 in an electronically recorded interview (EROI 14 – 15, 24). Further, Dr Yin Yin Wee's report stated that the appellant had been 'an ex‑alcoholic … since June 2018'.
The appellant told Ms Oliveri that he had pleaded guilty to the offence, but he maintained that the complainant had consented. The appellant was adamant that the complainant verbally indicated that she consented to his actions and that she then removed her pants. According to the appellant, he then touched the outside of the complainant's vagina and, when she continued to appear to consent, he digitally penetrated her vagina.
Ms Oliveri assessed the appellant's cognitive ability. She said in her report:
[The appellant] does not meet the intellectual criteria for an intellectual disability. However, he has significant cognitive challenges, probably present from birth, which have likely had life-long implications leading to problems with abstract reasoning, judgment, learning, insight, consequential thinking, perspective taking, planning and organisational skills. Additionally, his borderline intelligence and poor verbal skills are likely to have adversely impacted on all aspects of his life including his educational, social and occupational pursuits, and hindered his ability to establish and sustain meaningful intimate relationships.
Ms Oliveri noted that the appellant's intimate relationships have failed and he has not maintained contact with his children. He has not had a sexual partner for many years.
Ms Oliveri expressed the view that the offending in question appears to have been 'an aberration' and that the following factors are likely to have contributed to the offending:
(a)the appellant's borderline intelligence which has resulted in problems with abstract reasoning, learning, insight, judgment, consequential thinking, perspective taking, planning and organisational skills, employment and relationships;
(b)no sexual contact with others for many years;
(c)the belief that the complainant had been sexually active with others;
(d)a belief that the complainant had consented;
(e)sexual arousal; and
(f)a desire for sexual contact and gratification.
Ms Oliveri assessed the appellant to be at a low risk of reoffending in a sexual manner. However, Ms Oliveri commented that it is not possible to predict recidivism with certainty and that the assessment of recidivism is limited by the information available to the assessor.
According to Ms Oliveri, there was no evidence that the appellant suffered any 'major mental health problems'.
The author of the pre‑sentence report noted that, despite having pleaded guilty, the appellant denied that his actions in relation to the complainant were non‑consensual. The appellant minimised his offending and attempted to portray himself as the victim. He was unremorseful, lacked victim empathy and showed very little understanding of the traumatic impact his actions may have had on the complainant. The author of the report stated that the appellant had used insulting and offensive terms in referring to the complainant. The appellant asserted that the complainant was well known to the group of people who attended the New Year's Day celebrations for her promiscuity and drug taking.

The sentencing judge's sentencing remarks

The sentencing judge referred in her sentencing remarks to the facts and circumstances of the offending, the appellant's personal circumstances and antecedents, the psychologist's report and the pre‑sentence report.
Her Honour said that although the appellant was to be sentenced on the basis that he had an honest but unreasonable belief that the complainant was consenting, it was necessary for her Honour 'to determine the degree of the reasonableness of that belief' (ts 57).
The sentencing judge also said that the appellant's cognitive abilities and borderline intellectual functioning were factors that her Honour would take into account when she considered 'the reasonableness of [his] mistaken belief … that the complainant was consenting' (ts 59 ‑ 60).
Her Honour recounted that the appellant had got into bed with the complainant and sexually assaulted her while she was sleeping. The complainant had done nothing to indicate that she was interested in the appellant. The absence of force or intimidation by the appellant was counterbalanced 'to a significant extent by the serious abuse of [the complainant's] vulnerability, there being no opportunity to attempt to prevent the commission of the offence' (ts 62).
The sentencing judge found that the appellant did not have a reasonable belief that the complainant was consenting 'and the only basis upon which it can be explicable is in the context of [the appellant's] limited intelligence coupled with [his] intoxication at the time' (ts 62 – 63). The appellant's honest belief was not 'in any way' reasonable (ts 63).
Her Honour noted that she '[had taken] into account to a limited degree, [the appellant's] level of intellectual functioning [in] considering the issue of remorse' because 'that [had] impacted on [his] ability to … understand how serious [his offending was] and what an impact it [had] on [the complainant]' (ts 61).
The sentencing judge recounted that Ms Oliveri had assessed the appellant to be at a low risk of reoffending in a sexual manner (ts 61). Her Honour did not expressly disagree with that assessment.
However, her Honour said she was concerned that 'if [the appellant was] ever placed in a situation where [he had] access to a sleeping woman or a woman and where [he had] been drinking, because [he did not] understand the impact of [his] offending, that [he] may do it again' (ts 61).
The sentencing judge referred to personal deterrence and general deterrence as sentencing factors. Her Honour explained that she must impose a sentence on the appellant that would deter others from committing similar offences. Her Honour also explained that she must impose a sentence that would deter the appellant 'from ever doing this again to any [woman] should [he] be in a position where [he is] able to access a woman and [he is] intoxicated' (ts 61).
Her Honour reduced the head sentence she would otherwise have imposed for the offence by 15%, pursuant to s 9AA of the Sentencing Act 1995 (WA), to recognise the appellant's plea of guilty.
The sentencing judge said that she took into account a character reference from the appellant's sister who said the appellant was 'a very respectful person and a decent, good human being' (ts 62).
Her Honour observed that the appellant had 'significant and ongoing health issues' and that, by virtue of his age and his medical condition, prison would have 'an impact upon [the appellant], perhaps greater than someone in good health and younger'. Her Honour said that she would reduce the term of imprisonment she would otherwise have imposed on account of the appellant's age and medical condition (ts 59).
The sentencing judge mentioned the appellant's prior criminal record and said the record was 'dated'. Her Honour accepted that 'for the last 20 years [the appellant has been] a person of good character' (ts 60).
Her Honour made these comments before imposing the sentence of 3 years' immediate imprisonment:
[T]here is no hierarchy of sexual penetration. Although digital penetration will ordinarily be less serious than penile penetration, that's not inevitably so. In some cases, it may be no less serious or even more serious.
Digital penetration is sometimes considered less serious because it doesn't carry with it the risk of impregnation or the transmission of sexually transmitted diseases. I have taken it into account. In this case, I consider it marginally less serious than a count of penile penetration, but only marginally so.
This is a young woman who awoke to being penetrated by someone and it must have been clearly horrifying for her, and she was visibly upset and distressed and the ongoing impact of this sort of [offence] on complainants is well recognised by the courts.
I have considered all of the sentencing options … [I]n your case, only an immediate term of imprisonment is appropriate. I've taken into account your plea of guilty, your medical condition, your cognitive level of functioning in determining the appropriate term to be imposed (ts 64).

The grounds of appeal

At the hearing of the appeal the appellant relied upon three grounds of appeal.
Ground 1 alleged, in essence, that the sentence of 3 years' immediate imprisonment was manifestly excessive.
Ground 2, as amended, alleged that her Honour erred:
(a)in failing to take into account that the appellant's borderline intellectual functioning, although not meeting the criteria for an intellectual disability, was causally linked to the offending and, consequently, erred in failing to consider all matters relevant to the sentence to be imposed including that the appellant was not an appropriate vehicle for personal and general deterrence; and
(b)in characterising the offending as 'marginally less serious than a count of penile penetration but only marginally so' (ts 64).
Ground 3 alleged that her Honour erred in finding that the appellant might offend in a similar way again where '[the appellant had] access to a sleeping woman and where [the appellant] had been drinking, because [the appellant did not] understand the impact of [his] offending' (ts 61), when the evidence, based on Ms Oliveri's assessment, was that the appellant's offending was 'an aberration' and he was at 'low risk of reoffending in a sexual manner'.

The organisation of the balance of these reasons

It is convenient to deal, first, with ground 2(a), then ground 2(b), next ground 3 and, finally, ground 1.

Ground 2(a)

Ground 2(a) asserts, in effect, that the sentencing judge erred in failing to take into account that the appellant's borderline intellectual functioning was causally linked to the offending and, consequently, her Honour erred in failing to consider all relevant sentencing factors including that the appellant was not an appropriate vehicle for personal and general deterrence.

At first instance, defence counsel (who was not counsel for the appellant in the appeal) made this statement about the appellant's mental health in par 9 of defence counsel's written submissions dated 10 October 2018:
The [appellant's] intellectual dysfunction in and of itself is not advanced as mitigatory in terms of mental health considerations that might otherwise reduce his moral culpability, however, it is raised in terms that it likely would make imprisonment harder for him to bear.
In par 12 of defence counsel's written submissions it was argued that the need for personal deterrence was reduced because the appellant's offending was 'out of character and unlikely to be repeated' and that the need for general deterrence was also reduced because the appellant's moral culpability was 'at the lower end of the scale'. Defence counsel did not rely upon the appellant's intellectual impairment as a basis for his submission that the need for personal and general deterrence was reduced.
In his oral submissions at the sentencing hearing, defence counsel referred to the appellant's intellectual impairment in the context of asserting that:
(a)The appellant is 'much like a child' because of his intellectual impairment. It is difficult for the appellant 'to look beyond his own experience'. He was 'very mindful of the distress that [the complainant] would have faced in having to give evidence [at a] trial and … that bore heavily on his decision to enter a plea'. That demonstrates 'at least a level of empathy' (ts 39).
(b)Any period of custody would have 'a [substantial] detrimental impact' on the appellant because 'he [does not] understand [his] wrongdoing [in relation to the complainant] explicitly'. The appellant understands that what he did was wrong because it has been explained to him, but the appellant does not understand it at 'an emotional entrenched level'. He does not have the capacity 'to really understand it at that deeper level' (ts 41).
It is apparent that ground 2(a) and counsel for the appellant's submissions in support of that ground rely upon the appellant's intellectual impairment for purposes that were not relied upon by defence counsel in his written and oral submissions before her Honour.
In our opinion, even if the sentencing judge did not take into account or consider the appellant's borderline intellectual functioning for the purposes specified in ground 2(a), her Honour's omission would not constitute an error in that, at the sentencing hearing, defence counsel did not rely upon the appellant's borderline intellectual functioning for those purposes, but instead relied upon his borderline intellectual functioning for other purposes. See Greenland v The State of Western Australia.[1]
[1] Greenland v The State of Western Australia [2017] WASCA 83 [179] (Newnes & Mazza JJA & Beech J).
We will, however, examine whether the matters complained of in ground 2(a) occasioned a miscarriage of justice in the sentencing of the appellant.
In our opinion, upon a fair reading of her Honour's sentencing remarks, her Honour did in fact find that the appellant's borderline intellectual functioning was causally linked to the offending. The making of that finding is apparent from the following passages in the sentencing remarks:
(a)Her Honour said that the appellant's cognitive abilities and borderline intellectual functioning were factors that her Honour would take into account when she considered the reasonableness of his mistaken belief that the complainant was consenting (ts 59 ‑ 60).
(b)Her Honour said that 'the only basis upon which [the appellant's honest belief that the complainant was consenting] can be explicable is in the context of [the appellant's] limited intelligence coupled with [his] intoxication at the time' (ts 62 ‑ 63).
(c)Her Honour said that the appellant's level of intellectual functioning '[had] impacted on [his] ability to … understand how serious [his offending was] and what an impact it [had] on [the complainant]' (ts 61).
(d)Her Honour said that she had taken into account, in determining the length of the term of immediate imprisonment to be imposed, the appellant's 'cognitive level of functioning', as well as his plea of guilty and his medical condition (ts 64).
We are satisfied that the sentencing judge took into account, as a mitigating factor, the causal link between the appellant's intellectual impairment and the offending.
However, her Honour recognised (in accordance with a long line of authority) that, to the extent the appellant's offending was attributable to his voluntary consumption of alcohol, his intoxication was not mitigating.
The sentencing judge considered that personal and general deterrence were relevant considerations in determining the sentence to be imposed on the appellant. Her Honour stated that she must impose a sentence that would deter the appellant 'from ever doing this again to any [woman] should [he] be in a position [where he is] able to access a woman and [he is] intoxicated' (ts 61). Her Honour also stated that she must impose a sentence on the appellant that would deter others from committing similar offences.
In our opinion, the appellant's intellectual impairment did not have the consequence that, for sentencing purposes, he was not an appropriate vehicle for personal deterrence. Counsel for the appellant conceded that, although the appellant had an intellectual impairment, the appellant was capable of understanding that what he did was morally wrong as well as a criminal act (appeal ts 26). Counsel for the appellant also conceded that, despite his intellectual impairment, the appellant was capable of understanding the notion of personal deterrence (appeal ts 26). Those concessions were rightly made. On her Honour's findings, the appellant's honest belief was wholly unreasonable. Despite the absence of a relevant prior criminal record, the appellant was at risk of reoffending in a similar manner. Ms Oliveri expressed the view that this risk was 'low', but she had been misled by the appellant as to his history as an alcoholic and the extent of his intoxication on the night of the offending. Her Honour found that the appellant's intoxication was a relevant factor in his offending. Ms Oliveri may have underestimated the prospect of the appellant reoffending because she was misled. Her Honour also found that the appellant had failed to understand the impact of his offending on the complainant. The appellant's minimisation of his offending, his attempt to portray himself as the victim and the insulting and offensive labels he attached to the complainant constitute a basis for concern in relation to his progress towards rehabilitation. It was necessary to deter the appellant from acting on the wholly unreasonable belief which triggered his criminal conduct in relation to the complainant. The combination of the circumstances we have mentioned (in particular, the involvement of alcohol in the appellant's offending and the appellant's failure to understand the impact of his offending on the complainant), justified and required that personal deterrence be taken into account in determining the appropriate sentencing disposition.
In our opinion, the appellant's intellectual impairment did not have the consequence that, for sentencing purposes, he was not an appropriate vehicle for general deterrence. We accept that the appellant's intellectual impairment moderated or reduced the importance of general deterrence as a sentencing factor. However, his intellectual impairment did not render general deterrence irrelevant.
The nature and consequences of the appellant's intellectual impairment were relevant to the sentencing process in more than one respect and weighed both positively and negatively in the balance. See McNally v The State of Western Australia.[2]
[2] McNally v The State of Western Australia [2019] WASCA 93 [60] (Buss P & Beech JA).
The sentencing judge took into account, appropriately, the appellant's borderline intellectual functioning. Her Honour did not err in failing to conclude that the appellant was not an appropriate vehicle for personal and general deterrence. Indeed, if her Honour had decided that personal and general deterrence were irrelevant or insignificant she would have been in error. See McNally [62].
No miscarriage of justice occurred in the sentencing of the appellant in consequence of the matters complained of in ground 2(a).
Ground 2(a) fails.

Ground 2(b)

Ground 2(b) asserts, in effect, that the sentencing judge erred in characterising the appellant's offending as 'marginally less serious than a count of penile penetration but only marginally so' (ts 64).
In C v The State of Western Australia,[3] Wheeler JA observed:
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).
[3] C v The State of Western Australia [2006] WASCA 261 [32] ‑ [33].
In The State of Western Australia v Akizuki,[4] Steytler P made these comments:
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).
[4] The State of Western Australia v Akizuki [2008] WASCA 267 [68].
An offender's digital penetration of a female's vagina, without consent, is undoubtedly serious. Digital penetration as an offence should not be underrated in its seriousness. See Cavill v The State of Western Australia.[5] However, cases of digital penetration, as with other forms of sexual penetration, without consent, can vary significantly in the degree of their seriousness.
[5] Cavill v The State of Western Australia [2008] WASCA 108 [265] ‑ [267] (Miller JA; McLure & Buss JJA agreeing).
In the present case, the seriousness of the appellant's offending is apparent from a number of circumstances. First, the complainant was highly vulnerable in that she was alone and asleep. She was unable, in those circumstances, to take any action to endeavour to avoid the commission of the offence. Secondly, the appellant entered the bedroom and got into bed with the complainant without any reasonable basis for any belief that the complainant might welcome his presence or might be interested in any form of sexual interaction with him. Thirdly, the complainant suffered significant emotional trauma as a result of the appellant's actions.
Her Honour's characterisation of the appellant's offending did not involve the making of a finding of fact. Rather, her Honour was making a value judgment.
At the hearing of the appeal, counsel for the State conceded (properly, in our opinion) that, having regard to the objective facts and circumstances of the offending, it was difficult to sustain the sentencing judge's characterisation of the appellant's offending as 'only marginally' less serious than penile penetration (appeal ts 45).
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'.
Ground 2(b) has been made out.
Finally, in the context of ground 2(b), we note that the degree of seriousness of the appellant's offending is relevant to ground 1. We will consider that issue and take it into account in the course of addressing ground 1.

Ground 3

Ground 3 asserts, in effect, that the sentencing judge erred in finding that the appellant might offend in a similar way again if he had access to a sleeping woman and he had been drinking alcohol, because the appellant did not understand the impact of his offending on the complainant, when the evidence, based on Ms Oliveri's assessment, was that the appellant's offending was an aberration and the risk of the appellant reoffending in a sexual manner was low.
As we have mentioned, the appellant misled Ms Oliveri as to his history as an alcoholic and the extent of his intoxication on the night of the offending. Her Honour found that the appellant's intoxication was a relevant factor in his offending. Ms Oliveri may have underestimated the prospect of the appellant reoffending because she was misled. Her Honour also found that the appellant had failed to understand the impact of his offending on the complainant.
Also, as we have mentioned, the appellant's minimisation of his offending, his attempt to portray himself as the victim and the insulting and offensive labels he attached to the complainant constitute a basis for concern in relation to his progress towards rehabilitation.
In our opinion, her Honour was entitled to be apprehensive that if the appellant was ever placed in a situation where he had access to a sleeping woman and he had been drinking alcohol, he may reoffend in a sexual manner.
Ground 3 fails.

Ground 1

Ground 1 asserts, in effect, that the sentence of 3 years' immediate imprisonment was manifestly excessive.
A ground of appeal which alleges that a sentence is manifestly excessive asserts the existence of an implied error. 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.
The guidance afforded by comparable cases is flexible rather than rigid. The mere fact 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 a sentence is outside the range does not necessarily establish that the exercise of the sentencing discretion in the particular case miscarried.
A sentencing range for comparable offending 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.
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.
Except where a mandatory sentence is prescribed, a sentencing judge exercises a discretionary judgment which is subject to applicable statutory provisions and judge-made law. See Barbaro v The Queen.[6]
[6] Barbaro v The Queen [2014] HCA 2; (2014) 253 CLR 58 [25] (French CJ, Hayne, Kiefel & Bell JJ).
The discretion conferred on sentencing judges is, of course, of fundamental importance. 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. See Lowndes v The Queen.[7]
[7] Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665 [15] (Gleeson CJ, Gaudron, McHugh, Gummow, Kirby, Hayne & Callinan JJ).
At all material times, the maximum penalty for sexual penetration, without consent, contrary to s 325(1) of the Code has been 14 years' imprisonment.
In Akizuki, Steytler P carried out an exhaustive review of recent cases involving sexual penetration, without consent, of adult victims. His Honour prefaced his review by stating:
The starting point, in any such discussion, is recognition of the fact that there is no tariff for sexual offences. The sentence to be imposed in each case must depend upon its individual circumstances, having regard for the maximum penalty set by the legislature. 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 [3].
In Akizuki [68], Steytler P concluded that the circumstances of sexual offending and of sexual offenders are almost infinitely variable. Sentences imposed in one case can provide only very limited guidance in deciding what sentence should be imposed for similar offences in another case.
In general, an offender who has been convicted of a sexual offence which includes, as an element, the absence of consent, and who honestly but unreasonably believed that the victim was consenting to the act in question, will be less culpable than an offender who did not have an honest belief that the victim was consenting. However, whether and, if so, to what extent an honest belief will, in a particular case, be a mitigating factor, depends on all the relevant facts and circumstances. See, by analogy, PAS v The State of Western Australia;[8] BGE v The State of Western Australia.[9]
[8] PAS v The State of Western Australia [2009] WASCA 210 [99] (Buss JA; Owen & Wheeler JJA agreeing).
[9] BGE v The State of Western Australia [2013] WASCA 136 [28] (Buss JA; Mazza JA agreeing).
We have had regard to the sentencing dispositions in a range of cases including Cavill; Mountain v The State of Western Australia;[10] Miles v The State of Western Australia;[11] Bennell v The State of Western Australia;[12] Grubisic v The State of Western Australia;[13] and other previous decisions cited by counsel for the appellant and counsel for the State. It is unnecessary to repeat the relevant facts and circumstances of those cases or the sentences imposed. There are some comparable features between some of those cases and the present case but there are also distinguishing features.
[10] Mountain v The State of Western Australia [2009] WASCA 161.
[11] Miles v The State of Western Australia [2010] WASCA 93.
[12] Bennell v The State of Western Australia [2011] WASCA 174.
[13] Grubisic v The State of Western Australia [2011] WASCA 147; (2011) 41 WAR 524.

As will be apparent from our summary of the facts and circumstances of the offending and the sentencing judge's sentencing remarks, the appellant's offending was serious.
There were, however, some factors which mitigated the seriousness of his offending. First, the appellant entered a plea of guilty. Her Honour afforded him a 15% discount under s 9AA of the Sentencing Act. Secondly, the appellant did not have a relevant prior criminal record. Thirdly the appellant had an honest (although wholly unreasonable) belief that the complainant was consenting. Fourthly, the appellant had an intellectual impairment. This reduced his moral culpability but, as we have mentioned, the impairment weighed both positively and negatively in the balance. Fifthly, the appellant had significant and ongoing health issues. By virtue of his age and his medical condition, prison would be more difficult for the appellant than for someone who was younger and in good health.
As we have explained, personal deterrence was an important sentencing consideration. General deterrence was a relevant sentencing factor, but the appellant's intellectual impairment moderated or reduced its importance.
The protection of vulnerable women was another important sentencing consideration.
We are persuaded, after taking into account the maximum penalty for the offence; the facts and circumstances of the offending; the vulnerability of the complainant; the sentencing dispositions in previous cases with at least some features comparable to the appellant's offending; the place which the appellant's criminal conduct occupies on the scale of seriousness of offending of this kind; the appellant's personal circumstances and antecedents; and all other sentencing factors (including the matters of mitigation), that the sentence of 3 years' immediate imprisonment was unreasonable or plainly unjust. A sentence of immediate imprisonment of a materially shorter length should have been imposed. We would imply error from the sentencing outcome.
Ground 1 has been made out.

The result of the appeal and the resentencing of the appellant

For the reasons we have given, we decided on 20 December 2019 that leave to appeal should be granted on grounds 1 and 2, leave to appeal should be refused on ground 3, the appeal should be allowed and the sentencing decision of the sentencing judge should be set aside.
This court had the material necessary to resentence the appellant.
Like her Honour, we reduced the head sentence we would otherwise have imposed by 15%, pursuant to s 9AA of the Sentencing Act, in recognition of the appellant's plea of guilty.
After taking into account the maximum penalty and all relevant sentencing factors and principles (including reducing the sentence we would otherwise have imposed on account of the other mitigating factors, apart from the plea of guilty, referred to by the sentencing judge), we imposed a sentence of 2 years' immediate imprisonment, backdated to 11 October 2018, with parole eligibility.
The effect of the orders the court made on 20 December 2019 was that the appellant became eligible to be considered for release on parole as from 11 October 2019.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
JM
Research Associate to the Honourable Justice Buss
9 APRIL 2020