Tham Shengen v The State of Western Australia
[2025] WASCA 140
•24 SEPTEMBER 2025
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: THAM SHENGEN -v- THE STATE OF WESTERN AUSTRALIA [2025] WASCA 140
CORAM: MAZZA JA
VAUGHAN JA
HALL JA
HEARD: 8 APRIL 2025
DELIVERED : 24 SEPTEMBER 2025
FILE NO/S: CACR 65 of 2024
BETWEEN: LUKE THAM SHENGEN
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram: CHRISTIAN DCJ
File Number : IND 1821 of 2022
Catchwords:
Criminal law - Appeal against sentence - Appellant convicted of three counts of digital‑vaginal sexual penetration - Appellant convicted of seven indecent assault counts - Five different vulnerable victims - Where appellant is a health practitioner - Where appellant is employer of four of the five victims - Alleged infringement of first limb of totality principle
Legislation:
Criminal Code (WA), s 323, s 325(1)
Result:
Leave to appeal granted
Appeal dismissedCategory: B
Representation:
Counsel:
Appellant : F P Merenda Respondent : N R Sinton Solicitors:
Appellant : David Manera Respondent : Director of Public Prosecutions (WA) Case(s) referred to in decision(s):
Gaskell v The State of Western Australia [2018] WASCA 8
Giglia v The State of Western Australia [2010] WASCA 9
Hodges v The State of Western Australia [2025] WASCA 136
House v The King [1936] HCA 40; (1936) 55 CLR 499
Kabambi v The State of Western Australia [2019] WASCA 44
Musgrave v The State of Western Australia [2021] WASCA 67; (2021) 289 A Crim R 17
Ng v The State of Western Australia [2025] WASCA 121
OTR v The State of Western Australia [No 2] [2022] WASCA 123
Panda v The State of Western Australia [2017] WASCA 5; (2017) 264 A Crim R 330
Pennetta v The State of Western Australia [2013] WASCA 234
R v Pham [2015] HCA 39; (2015) 256 CLR 550
Roffey v The State of Western Australia [2007] WASCA 246
Suleman v The State of Western Australia [2022] WASCA 19
The State of Western Australia v Bascunan Cabrera [2023] WASCA 34
The State of Western Australia v HNU [2023] WASCA 6
The State of Western Australia v Popal [2020] WASCA 200
Weston v The State of Western Australia [2025] WASCA 131
JUDGMENT OF THE COURT:
Overview
1This is an offender appeal against sentence.
2On 11 April 2024, after a 21-day trial before Christian DCJ and a jury in the District Court of Western Australia, the appellant was convicted of 10 counts of sexual offending against five complainants: YN, AS, KL, TL and KC. The counts on which the appellant was convicted, and the sentences subsequently imposed for that offending, are set out in the schedule to these reasons. In summary, the appellant was convicted of three counts of sexual penetration without consent contrary to s 325(1) of the Criminal Code (WA) (Code) and seven counts of unlawful and indecent assault contrary to s 323 of the Code.
3Each of the three sexual penetration counts involved the appellant penetrating the victim's vagina with his finger. The maximum penalty for each such offence, contrary to s 325(1) of the Code, is 14 years' imprisonment. The indecent assault counts involved the appellant touching the vagina or breasts of the victims. The maximum penalty for each such offence, contrary to s 323 of the Code, is 5 years' imprisonment.
4The appellant was a physiotherapist engaged in private practice. Four of the victims were employed in a practice run by the appellant when the offences were committed. The fifth victim, KC, was a patient of the appellant's. The offending involved grooming, a serious breach of trust and an abuse of a power imbalance. The offending was planned and persistent.
5On 14 June 2024 the appellant was sentenced to a total effective sentence of 9 years and 10 months' imprisonment for the offending. The sentence was backdated to commence from 11 April 2024. The individual sentence for each offence is set out in the schedule to these reasons. There is no challenge on appeal to any of the individual sentences. The sentencing judge made an order that the appellant be eligible for parole.
6The appellant seeks leave to appeal relying on a single ground of appeal:
The total effective sentence of 9 years and 10 months' imprisonment breached the first limb of the totality principle and was manifestly excessive as to duration.
7For the reasons that follow, leave to appeal should be granted but the appeal must be dismissed.
The circumstances of the offending
8All of the offending occurred in the context of the appellant's work as a physiotherapist.
9The appellant recruited YN to work as a receptionist at one of his physiotherapy clinics. YN was around 23 years old when she began working for the appellant. It was a requirement of her employment at the clinic that YN have one‑on‑one physiotherapy sessions with the appellant so that YN could understand what physiotherapy involved. The sessions turned into performance reviews in which the appellant performed physiotherapy on YN notwithstanding that YN did not require treatment. YN was required to wear only her bra and underwear for the so‑called treatment sessions. The sentencing judge was satisfied that the appellant used these sessions to groom YN (ts 2102 ‑ 2103).
10The first of the offences involving YN occurred in 2018. The appellant conducted a back massage followed by a pectoral massage which included a massage of YN's breast tissue. While YN was on her back the appellant performed a hamstring stretch during which he shifted her underwear and placed his palm on the opening of YN's vagina (count 3). The second offence involving YN took place in August 2018. The treatment session followed a similar pattern as to the offending the subject of count 3. This time, however, during the hamstring stretch the appellant placed his hand on YN's vagina and penetrated her vagina with his finger (count 4).
11The sentencing judge found that the offending against YN was not isolated - it occurred over a number of years; the appellant groomed YN; there was a gross violation of trust as both an employer and a qualified physiotherapist; and there was a significant power imbalance between the appellant and YN (ts 2107 ‑ 2108).
12AS was also a receptionist at one of the physiotherapy clinics. She was around 27 years old. As with YN, the appellant required AS to have physiotherapy sessions to familiarise herself with physiotherapy. While the treatment sessions were initially unremarkable, the appellant introduced AS to something he referred to as 'lymphatic drainage'. This involved touching the area where AS's leg met her vagina. The sentencing judge was satisfied that the appellant was grooming AS so as to normalise sexual touching (ts 2104).
13In mid-2017, AS confided in the appellant that she was having difficulty in falling pregnant. The appellant informed AS that he could perform 'fertility physio'. This then happened on multiple occasions. It involved the appellant touching AS on the front of her vagina and, on occasions, rubbing her clitoris. Count 5 is the first of these occasions. The treatments continued once or twice a week even after AS fell pregnant. It continued until AS went on maternity leave in around June 2018.
14The sentencing judge found that the offending against AS was not isolated; the appellant groomed AS; there was a gross violation of trust as both an employer and a qualified physiotherapist - the appellant exploited AS's desire to be a mother 'in the most despicable way'; and there was a significant power imbalance between the appellant and AS (ts 2108).
15KL was initially one of the appellant's patients. KL had been a patient from when she was around 13 years old, competing as a gymnast, until around the age of 21 years old. When the appellant saw KL in 2018 as a patient he offered her a job as a receptionist. In that capacity, KL was required to have work meetings in which the appellant gave her full‑body massages. These focused on KL's groin and breasts. During one of these full body massages, in late 2019, the appellant put his hand underneath KL's underwear and rested it around her clitoral area while massaging KL's breast with his other hand (count 6).
16The sentencing judge found that the appellant groomed KL; there was a gross violation of trust as both an employer and a qualified physiotherapist; and there was a significant power imbalance between the appellant and KL (ts 2105, 2108).
17TL was a patient of the appellant's from a young age. Eventually, once TL was old enough, she started seeing the appellant for treatment without any accompaniment. The appellant then started touching the side of her breast tissue. During one treatment session, when TL was around 15 years old, the appellant offered her a job as a receptionist. The appellant continued to treat TL after she started working with him.
18Count 7 involved the appellant massaging TL's left and right breasts. The sentencing judge was satisfied that the treatment was not a legitimate physiotherapy treatment. Count 8 occurred when TL was around 17 years old. The appellant was performing what he called 'lymphatic drainage'. The appellant had suggested this treatment as a means to control TL's acne. TL was wearing only underwear. The appellant's treatment involved working on TL's uncovered pectoral muscles and breasts. The appellant also worked on TL's legs and inner thighs. After massaging TL's left thigh, and pulling her underwear to one side, the appellant touched TL's vagina and rubbed her clitoris with his thumb for what seemed like 'a while' (ts 797). The sentencing judge was satisfied that this was not the only occasion on which the appellant touched TL's clitoris on the pretence of treating her with lymphatic drainage. The sentencing judge accepted TL's recollection of three other occasions on which this occurred (ts 2107).
19The sentencing judge found that the offending against TL was not isolated; the appellant groomed TL; the appellant exploited the fact that TL was a young woman who suffered from acne; the appellant was TL's employer, who she trusted; the appellant used his professional qualifications to offend against TL while ostensibly providing treatment; and there was a significant power imbalance between the appellant and TL (ts 2108).
20KC was another of the appellant's patients. KC was 15 years old when the appellant started treating her for scoliosis. Initially KC would attend treatment sessions with one of her parents who remained in the room. However, after she obtained her driver's licence in late April 2019, KC began attending treatment sessions on her own. The appellant then took the opportunity to sexually offend against KC. Each of counts 12 - 15 involved the appellant massaging KC's breasts. On the first occasion the appellant told KC that she had knots in her breast tissue. On the last two occasions the appellant gradually got closer to KC's nipples and massaged over them. On the last occasion the appellant massaged KC's breasts in a forceful way to the point where it 'really hurt' (ts 677).
21The sentencing judge found that the appellant exploited the fact that KC was a young patient who was seeing him for the first time on her own; the appellant used his professional qualifications to offend against KC while ostensibly providing treatment; and there was a significant power imbalance between the appellant and KC (ts 2108).
22The evidence before the sentencing judge included victim impact statements from four of the five victims. It is readily apparent that the offending has had a profoundly adverse impact of each of those victims. The impact is emotional, physical and, in some cases, financial. In each case the adverse impact is continuing. It may be inferred, from its nature and the relatively young age of the fifth victim, that the appellant's offending will also have had a profoundly adverse impact on the fifth victim, who did not provide a victim impact statement.
23The sentencing judge was satisfied that the effects of the appellant's offending would be lifelong for the victims (ts 2109).
The appellant's personal circumstances
24The appellant was aged between 36 and 39 years old at the time of the offending and was 43 years old at the time of sentencing.
25The appellant was born and grew up in Singapore. He is the eldest of four children born to his parents. The appellant had an unremarkable childhood. The appellant was physically and emotionally nurtured and did not experience any traumatic events. The appellant's parents remained supportive of him. The appellant immigrated to Australia in his twenties and attended university in Perth. He graduated with a degree in physiotherapy in 2009. The appellant worked as an employed physiotherapist until 2016 when he set up a physiotherapy practice. Eventually, by 2019, the appellant was involved in three physiotherapy practices in the wider Perth metropolitan area.
26At the time of his sentencing, the appellant was married with two children aged 10 and 13 years old. The appellant's wife and her parents have remained supportive of the appellant. The appellant had no prior criminal history and no history of drug use or alcohol abuse. The appellant had some physical health issues, but these issues were manageable in custody. So too the appellant's children had some health issues. But these were not such that the appellant's incarceration would result in exceptional hardship to his family.
27The sentencing judge referred to a number of positive character references which spoke highly of the appellant's personal qualities and ways in which the appellant had contributed to the community.
Sentencing remarks
28The sentencing judge addressed the circumstances of the offending (ts 2102 ‑ 2107), the victim impact statements (ts 2109) and the appellant's personal circumstances (ts 2110 ‑ 2111). Her Honour identified aggravating factors in respect of the offending for each victim (ts 2107 ‑ 2109). We have summarised those matters after recounting the basic facts of the offending (see [11], [14], [16], [19] and [21] above). More generally, the sentencing judge observed:
In relation to each of the complainants, insofar as you expressly or implicitly held out your actions were legitimate treatments, your offending was a gross violation of their trust. Any healthcare professional who treats patients or clients in private is entrusted to act professionally and with the best interests of those they treat. You violated that trust in a most appalling way, to gratify some desire or desires of your own, whether they be sexual or to exercise power. You had no regard whatsoever to the best interests of the victims (ts 2109).
29The sentencing judge characterised the offending as 'extremely serious offending' of its kind (ts 2112).
30In terms of mitigating factors, the sentencing judge found that the appellant had not demonstrated any remorse. The appellant had no previous criminal history; he was to be sentenced as a person of previous good character. The sentencing judge was unable to reach any conclusion about the appellant's risk of re‑offending. However, her Honour did accept that, as the appellant would never practice as a physiotherapist again, it was unlikely that he would be able to offend in a similar way (ts 2111).
31The sentencing judge mentioned the general sentencing principles for offending of the kind committed by the appellant. Her Honour mentioned, correctly, that the main sentencing considerations were punishment and general and personal deterrence. On balance, while conscious that the importance of general deterrence remained, the sentencing judge concluded that the need for personal deterrence 'is less than it otherwise might be' as 'the consequences of [the appellant's] actions [were] such that there is not a great need for personal deterrence' (ts 2111 ‑ 2112).
32The sentencing judge fixed terms of imprisonment for each offence. Her Honour then turned to consider the totality principle. The sentencing judge referred to the first limb of the totality principle in orthodox terms. Her Honour then said that there should be some accumulation having regard to the fact that there was more than one victim. Her Honour arrived at a total effective sentence of 9 years and 10 months' imprisonment. This was achieved by providing that the sentence on count 5 was to be the head sentence. The sentences on counts 6, 8 and 15 were to be served cumulatively on the sentence on count 5 and on each other. For reasons of totality, the sentences on counts 3 and 15 were reduced (from 10 months and 8 months respectively to 7 months and 5 months respectively). All other sentences were to be served concurrently (ts 2112 ‑ 2113).
33The appellant was made eligible for parole and the sentence was backdated to commence from the date that the appellant was remanded in custody (ts 2113).
Disposition
Applicable legal principles: sentencing for sexual offences
34There is no tariff for sexual offences. Nor is there a specified starting point for each form of sexual penetration without consent. One form of sexual penetration is not necessarily any more or less serious than another. The seriousness of every offence of sexual penetration without consent must be determined by its own particular circumstances. The major sentencing considerations are punishment and general and specific deterrence. Personal circumstances, while not irrelevant, are of comparatively less weight. See The State of Western Australia v HNU.[1]
[1] The State of Western Australia v HNU [2023] WASCA 6 [64], [67].
35The parties both referred to Panda v The State of Western Australia[2] and The State of Western Australia v Bascunan Cabrera.[3] As will be seen, both cases concerned sexual offending by health practitioners. The State referred in particular to the following passage from Buss P's reasons in Panda:
The complainants were entitled to expect from the appellant, as a person who practised a highly respected and honourable profession dedicated to the diagnosis, treatment and relief of physical and mental illness and associated suffering, a punctilious standard of personal behaviour. The appellant failed abjectly and repeatedly in the observance of his fundamental ethical responsibilities. His moral compass was ignored or abandoned [126].
[2] Panda v The State of Western Australia [2017] WASCA 5; (2017) 264 A Crim R 330.
[3] The State of Western Australia v Bascunan Cabrera [2023] WASCA 34.
36Mazza and Mitchell JJA agreed with Buss P's reasons.
37The State observed that this passage from Panda was cited with approval in Bascunan Cabrera, the court saying that similar considerations apply to an allied health professional such as a physiotherapist who sexually offends against patients while treating them [73] ‑ [74].
38No new rule of law was stated in Panda or Bascunan Cabrera. The passage in Panda responds to a ground of appeal that alleged that the sentencing judge erred in characterising the offender's offending as involving a serious breach of trust. The passage does no more than explain why, in the circumstances of that case, the ground of appeal was without merit. The relevant sentencing principles for sexual offending of the kind in the present case are described at [34] above. See also Panda [112] and Bascunan Cabrera [71], [75] ‑ [80].
39That said, as a matter of fact it is to be expected, ordinarily, that the considerations described in Panda will apply where there is sexual offending by a health practitioner in the course of treating one of his or her patients. Where it is established as a matter of fact that such offending has occurred, the breach of trust by the offender will be an aggravating factor - and often a significant aggravating factor - that informs the seriousness of the offending.
40It should also be recognised that the contextual circumstances in which the sexual offending occurred in the present case are relevant to the important sentencing consideration of general deterrence.
41This is a case of sexual offending by a health practitioner in the course of his practice against young women. Health practitioners perform a vital and indispensable role in the community. However, the nature of the work that health practitioners perform means that, very often, a health practitioner's patients are vulnerable if a health practitioner is minded to disregard his or her legal, professional or ethical obligations. Very often, in examining or treating a patient, a health practitioner must physically touch his or her patient. Very often, in doing so, the patient must be partially or substantially disrobed. In many cases the health practitioner and his or her patient will be alone. Sometimes, for whatever reason, the patient may be incapable of properly appreciating what is happening during a consultation. Very often, even if a patient is capable of appreciating what is happening during a consultation, due to a lack of specialised knowledge the patient may be unsure of whether the examination or treatment is medically or clinically indicated.
42Ordinarily, a patient will trust his or her health practitioner. The health practitioner will have skills, training and experience in a particular field of expertise. The patient will, ordinarily, be untutored in the health practitioner's field of expertise. At the least there will be an informational asymmetry and situational disadvantage. As a result, ordinarily, a health practitioner will be in a position of ascendancy over his or her patient whereby the health practitioner has authority, power or influence over his or her patient.
43A patient will expect that, as well as being competent, his or her health practitioner will not take advantage of him or her (whether physically, sexually or in some other manner). Such a belief is well grounded. The complex system of vocational and professional regulation that exists within the various different health practitioner streams promotes that belief. It is in the public interest for this belief to be maintained and enhanced. Any community concern that health practitioners cannot be trusted not to take advantage of their patients is likely to have adverse implications for community health and the effectiveness and efficiency in the delivery of health practitioner services. Sexual offending by a health practitioner, in the course of his or her practice, undermines and tends to erode public trust and confidence in health practitioners generally to the detriment of the health care system enjoyed by the community.
44So understood, where a health practitioner exploits his or her position of ascendancy over a patient for sexual gratification, the ramifications travel beyond the immediate harm suffered by the particular victim the subject of the sexual offending.
45For this reason, general deterrence assumes a heightened importance as a sentencing consideration where a health practitioner sexually offends against his or her patients. Health practitioners must be deterred from committing sexual offences against their patients in the course of their practice. The need for such deterrence arises from the nature and importance of the work performed by health practitioners in the community. Health practitioners should appreciate that, where they commit sexual offences against a patient, the contextual circumstances in which the sexual offending occurred will be taken into account by a sentencing court in evaluating the weight to be given to general deterrence.
Applicable legal principles: appeal alleging an infringement of the first limb of the totality principle
46A ground of appeal that asserts that a sentencing judge has infringed the totality principle involves an allegation of implied error.
47In Roffey v The State of Western Australia, McLure JA (Steytler P & Miller JA agreeing) described the totality principle in these terms:
The first limb is that the total effective sentence must bear a proper relationship to the overall criminality involved in all the offences, viewed in their entirety and having regard to the circumstances of the case, including those referable to the offender personally.
The second limb is that the court should not impose a 'crushing' sentence. The word crushing in this context connotes the destruction of any reasonable expectation of a useful life after release. An aggregate sentence may be inappropriately long under the first limb even if it cannot be described as crushing.[4] (citations omitted)
[4] Roffey v The State of Western Australia [2007] WASCA 246 [24] ‑ [25].
48The practical effect of the totality principle is ordinarily to arrive at an aggregate sentence that is less than that which would be arrived at by simply adding up all the terms appropriate for the individual offences. A rationale for the totality principle is that there is assumed rehabilitation and reduced demand for retribution after the initial sentence has been served: Roffey v The State of Western Australia [26].
49The severity or leniency of an individual sentence (which is not manifestly excessive or manifestly inadequate) is relevant in evaluating whether the total effective sentence infringes the first limb of the totality principle: Giglia v The State of Western Australia[5] (as explained in Gaskell v The State of Western Australia).[6]
[5] Giglia v The State of Western Australia [2010] WASCA 9 [40].
[6] Gaskell v The State of Western Australia [2018] WASCA 8 [56], [59], [62].
50The general principles governing appeals against sentence contending that error should be inferred on the basis that the total effective sentence infringes the totality principle are well established and need not be repeated. See for example Kabambi v The State of Western Australia[7] and Ng v The State of Western Australia.[8] A matter of primary importance to those principles is that sentencing is a discretionary exercise. An appellate court can only intervene if the appellant demonstrates either an express or implied material error. An appellate court cannot substitute its own opinion for that of the sentencing judge merely because the appellate court would have exercised a sentencing discretion differently.
[7] Kabambi v The State of Western Australia [2019] WASCA 44 [21].
[8] Ng v The State of Western Australia [2025] WASCA 121 [86] - [95].
51 For present purposes, so far as the contention is one of implied error, it suffices to state that the ultimate question is whether on the facts the sentence of 9 years and 10 months' imprisonment for the appellant's offending is unreasonable or plainly unjust such that the court must conclude that a substantial wrong has occurred: House v The King.[9] The court must be driven to conclude that there must have been 'some misapplication of principle' when regard is had to all of the relevant sentencing factors (including the degree to which the sentence differs from sentences that have been imposed in comparable cases): R v Pham.[10]
[9] House v The King [1936] HCA 40; (1936) 55 CLR 499, 505.
[10] R v Pham [2015] HCA 39; (2015) 256 CLR 550 [28](7).
52For consistency purposes, it is necessary to consider any broadly comparable cases when evaluating whether a total effective sentence infringes the first limb of the totality principle. It must, however, be recognised that, when examining the total effective sentences in offending of a particular kind, the exercise of comparison may be difficult and the usefulness of the broadly comparable cases may be limited. While providing broad guidance, there will often be significant differences in the circumstances of the offending and the offenders. For example, there will often be a different mix of offences, and number of offences and victims, rendering the comparison of limited utility. See Pennetta v The State of Western Australia;[11] OTR v The State of Western Australia [No 2];[12] and Weston v The State of Western Australia.[13]
[11] Pennetta v The State of Western Australia [2013] WASCA 234 [39].
[12] OTR v The State of Western Australia [No 2] [2022] WASCA 123 [61].
[13] Weston v The State of Western Australia [2025] WASCA 131 [39].
53 An absence of broadly comparable cases is not a barrier to this court finding that there has been an infringement of the totality principle: The State of Western Australia v Popal[14] and Weston [39].
[14] The State of Western Australia v Popal [2020] WASCA 200 [86].
The parties' submissions
54The appellant makes no complaint as to any of the individual sentences. Instead, in written and oral submissions the appellant focuses heavily on what is said to be the similarity of the facts in Bascunan Cabrera and the present case. This, it was said in oral submissions, is the 'real gist' of the case put on behalf of the appellant (appeal ts 2). Counsel for the appellant went as far as to submit that the sentence of 9 years and 10 months' imprisonment in the present case was 'irreconcilable' with the sentence of 7 years and 3 months' imprisonment in Bascunan Cabrera (appeal ts 2; see also appeal ts 3 - 4).
55Counsel for the appellant acknowledges that there are some features of the appellant's offending that are more serious than the offending in Bascunan Cabrera. We will come back to those matters. Counsel says, however, that these are not significant distinguishing factors. Having regard to the sentencing outcome in Bascunan Cabrera - a total effective sentence of 7 years and 3 months imposed on a resentencing following a successful State appeal - the total effective sentence of 9 years and 10 months' imprisonment in the present case is said not to bear a proper relationship to the overall criminality of the appellant's offending. Counsel argued that having regard to the 'remarkable similarities' between the two cases the disparity in the two sentences was 'unjustifiable' and 'unreasonable' (appeal ts 3 - 4).
56The State says it was necessary for there to be a significant accumulation of sentences to reflect the circumstances that: (1) there were five victims who were separately offended against; and (2) more than one individual offence was committed against many of the victims. The State refers to obvious points of distinction between Bascunan Cabrera and the present case. The State says that the present case involved more serious offending than the offending in Bascunan Cabrera. Accordingly, the higher sentence in the present case was necessary to reflect the aggravating factors found in the present case.
57Otherwise the State refers to various decisions in support of its contention that the total effective sentence of 9 years and 10 months' imprisonment does not infringe the first limb of the totality principle. Reference is made to Musgrave v The State of Western Australia;[15] Panda; and Suleman v The State of Western Australia.[16]
[15] Musgrave v The State of Western Australia [2021] WASCA 67; (2021) 289 A Crim R 17.
[16] Suleman v The State of Western Australia [2022] WASCA 19.
Consideration and determination
58Little assistance can be derived from the additional cases referred to by the State. Each of Musgrave and Suleman concerned a single victim. That alone means that the offending in those cases is not broadly comparable with the offending in the present case. There were five female victims in Panda. The offender was a medical practitioner; the victims were his patients. While, in these respects, there are some similarities with the present case, the offending in Panda consisted of eight counts of unlawful and indecent assault contrary to s 323 of the Code. The lesser maximum penalty for that offending, when compared to the maximum penalty for the three digital-vaginal sexual penetration without consent offences in the present case, means that the offending in Panda is not broadly comparable to the offending in the present case.
59 Musgrave is of some utility so far as it considers customary sentencing standards for a single count of digital-vaginal sexual penetration without consent contrary to s 325(1) of the Code where there is no plea of guilty. In Musgrave, Buss P considered a number of decisions in this court and its predecessor and concluded that, where there was offending of this kind, a sentence of 15 months to 3 years' imprisonment would not be unusual [123], [130].
60In the present case, for his offending contrary to s 325(1), the appellant was sentenced to individual terms of imprisonment of 4 years (counts 5 and 8) and 3 years and 10 months (count 4). The mere fact that the sentences imposed on the appellant are outside the range identified by Buss P does not bespeak manifest excessiveness. Sentences beyond the range will be justified in particular cases: Musgrave [131]. This is one such case given the aggravating factors correctly identified by the sentencing judge. Each of the individual sentences for the digital‑vaginal sexual penetration without consent offences was reasonably open on the facts. None of the individual sentences for these offences, while higher than the range identified by Buss P, could be characterised as severe. In any event, as we have noted, the appellant did not challenge any of the individual sentences.
61The circumstance that the appellant's individual offending contrary to s 325(1) was particularly serious, more so than the usual case, has implications for the application of the totality principle. The first limb of the totality principle requires that the total effective sentence imposed on an offender who has committed multiple offences bears a proper relationship to the overall criminality involved in all of the offences. Where, as here, the individual offending is particularly serious, more so than the usual case of offending of that kind, and the offender has offended in a like manner against a number of victims on separate occasions, it is to be expected that those matters will be reflected in the total effective sentence.
62We turn then to Bascunan Cabrera. It is necessary to give this decision close consideration given the reliance placed on it by the appellant.
63 Bascunan Cabrera was a State appeal. The offender, an iridologist and naturopath, was convicted after trial of five counts of sexual penetration without consent, contrary to s 325(1) of the Code, and one count of unlawful and indecent assault, contrary to s 323 of the Code. The offending was against five different patients. The sexual penetration offences all involved digital‑vaginal penetration. The indecent assault involved the offender touching one of the patients on her breasts. The offender was sentenced to a total effective sentence of 5 years and 6 months' imprisonment. The individual sentences for the sexual penetration offences were 2 years' imprisonment (for four of the counts) and 18 months' imprisonment (for the remaining count). This court allowed the appeal on the basis that the individual sentences imposed on the sexual penetration offences were manifestly inadequate. The court was also satisfied that the total effective sentence was unreasonable or plainly unjust. The offender was resentenced to a total effective sentence of 7 years and 3 months' imprisonment. The individual sentences for the sexual penetration offences were increased to 3 years and 9 months' imprisonment (in one instance reduced to 3 years and 6 months' imprisonment in application of the totality principle).
64There are, as will be appreciated, a number of similarities between the offending in Bascunan Cabrera and the present offending.
65Both offenders were health practitioners. The offending occurred in the course of each offender's practice as a health practitioner. There were five victims. The offending was similar in nature. In Bascunan Cabrera there were five digital-vaginal sexual penetration counts compared to the three offences for which the appellant was convicted. However, the appellant was convicted of seven counts of indecent assault compared to the single count in Bascunan Cabrera. The personal circumstances of the offenders were not dissimilar. Neither offender pleaded guilty. The sentences were imposed following conviction after trial. There was no remorse and no acceptance of responsibility. The offenders were both mature adults and had no prior criminal history. Each was assessed as having a low risk of re-offending in a similar way given that they could no longer practice in their professions.
66There are, however, significant differences between Bascunan Cabrera and the present case.
67First, in the present case the appellant groomed his victims. By contrast the offending in Bascunan Cabrera was isolated and opportunistic offending against each victim. Accordingly, there was additional planning and persistency to the appellant's offending against his victims. This increases the seriousness of the objective circumstances of the appellant's offending compared to the objective circumstances of the offending in Bascunan Cabrera.
68Second, in the present case, for four of the victims, there was an employer and employee relationship between the appellant and the victim. This, as the sentencing judge correctly recognised, increased the seriousness of the offending. There was a more serious breach of trust.
69There is an inherent power imbalance between an employer and an employee. An employee is, ordinarily, particularly vulnerable as regards his or her employer. By virtue of the power imbalance that arises in an employment relationship, an employee will often feel compelled to accept, and not question or complain about, conduct that is unlawful and would not be tolerated outside of an employment relationship. A person in the position of an employee who is offended against by his or her employer will be acutely aware that any complaint may have adverse consequences for the employee. The employee may lose his or her job; were the employee to resign the employer might withhold the sort of reference to which the employee is otherwise entitled; other adverse consequences may result for the employee notwithstanding that it is the employee who has been wronged. The obvious situational disadvantage and potential financial dependence to which an employee is subject may embolden an employer to offend on the basis that he or she considers that the employment relationship allows him or her to act with impunity.
70The exploitation of a power imbalance between employer and employee, to commit an offence for the employer's sexual gratification, involves a particularly serious breach of trust that significantly increases the seriousness of any sexual offending.
71Third, the offending against each of YN, AS and TL was representative of an ongoing course of conduct.
72The last of these three differences does not mean that, in sentencing the appellant, he was to be sentenced and punished for offences with which he was not charged. But it does mean that there was no available mitigation on the basis that the offending conduct was isolated, aberrant or uncharacteristic. This matter is, however, of less weight than the other two differences. The offender in Bascunan Cabrera was not sentenced on the basis that any of the offences of which he was convicted was representative of an ongoing course of conduct. Individually the offending was isolated and opportunistic. Viewed as a whole, however, it could not be said that the offending was aberrant or uncharacteristic. There was a pattern of conduct in Bascunan Cabrera where the offender offended against his patients in a predatory manner over a four-and-a-half-year period.
73The significant differences in the offending, as between Bascunan Cabrera and the present case, justifies the higher individual sentences imposed on the appellant for the digital‑vaginal sexual penetration without consent offences the subject of counts 5 and 8.
74There are similar features in the offending in Bascunan Cabrera and the offending in the present case. But, critically, there are also significant differentiating features. Those differentiating features justify the higher individual sentences imposed in the present case for the two most serious offences of which the appellant was convicted. Balancing these matters, and taking into account the whole of the objective circumstances of the two sets of offending and the personal circumstances of the two offenders, we are comfortably satisfied that the overall criminality involved in all of the offences committed by the appellant is significantly more serious than the overall criminality involved in all of the offences committed by the offender in Bascunan Cabrera. We are also satisfied that the difference in the total effective sentences is properly reconcilable by the additional aggravating factors that increase the seriousness of the appellant's offending.
75We are, for these reasons, unable to accept the appellant's submission that the sentencing outcome in Bascunan Cabrera demonstrates that the first limb of the totality principle has been infringed in the present case.
76Two additional things should be recalled. Both impact on the apparently determinative consequence that the appellant attaches to the sentencing outcome in Bascunan Cabrera. First, it is well established that, when resentencing on a successful appeal against sentence, this court does not fix the upper or lower limit of the permissible sentencing range. In this respect the guidance afforded by comparable cases is flexible rather than rigid. Second, it is equally well established that, when considering comparable cases, one or two decisions - or even a small number of decisions - will be of limited assistance. The sentences imposed in a small number of cases do not suffice to reveal customary standards of sentencing or an appropriate sentencing range. See Hodges v The State of Western Australia.[17]
[17] Hodges v The State of Western Australia [2025] WASCA 136 [74](8) - (9).
77So understood, whether or not the total effective sentence imposed on the appellant infringes the first limb of the totality principle cannot, as a matter of principle, be answered by determining whether the sentence is reconcilable with the total effective sentence imposed on the offender in Bascunan Cabrera. The question must be approached by reference to the principles earlier enunciated rather than simply by whether or not the sentencing outcome in the present case is consistent with, or inconsistent with, the sentencing outcome in an earlier case (even when that earlier case involves a resentencing by this court in circumstances where the offending has similar features to the present offending).
78This is not to say that the sentencing outcome in Bascunan Cabrera - as a broadly comparable case - is irrelevant to whether the first limb of the totality principle has been infringed in the present case. It is instead to recognise that the sentencing outcome in Bascunan Cabrera is simply one factor of a number of factors to be considered when evaluating whether the total effective sentence of 9 years and 10 months' imprisonment imposed on the appellant is unreasonable or plainly unjust.
79It is inevitable that there will be variations between sentences for similar offending and all the more so between total effective sentences for similar offending. The question raised by the single ground of appeal is not whether there is numerical or mathematical equivalence between the appellant's total effective sentence and the total effective sentence in Bascunan Cabrera. The range of sentences customarily imposed is of significance for the purpose of ensuring broad consistency in the sentencing of offenders in broadly comparable cases. The consistency sought is consistency in the application of relevant legal principles. In that respect, for the reasons we have given, the sentencing outcome in Bascunan Cabrera does not bespeak any misapplication of principle by the sentencing judge once proper regard is had to the significant differences between Bascunan Cabrera and the present case.
80When, as it must be, the single ground of appeal is approached in accordance with the accepted principles rather than whether the total effective sentence imposed on the appellant is reconcilable with the sentence imposed in Bascunan Cabrera, no implied error is revealed. There was no infringement of the first limb of the totality principle. We are not satisfied that the total effective sentence is unreasonable or plainly unjust such that a substantial wrong has occurred or there has been some misapplication of principle. To the contrary, the appellant's total effective sentence of 9 years and 10 months' imprisonment bears a proper relationship to the overall criminality involved in the 10 offences committed by the appellant, viewed together, after having regard to all relevant facts and circumstances and all relevant sentencing factors, including the total effective sentence imposed in Bascunan Cabrera.
81The appellant offended against multiple victims in separate incidents. In order to properly mark the appellant's overall criminality it was necessary to order a degree of accumulation of the sentences concerning each victim. The sentencing judge had regard to the totality principle in considering what provision should be made for cumulacy and concurrency. The sentencing judge accumulated two of the sentences for sexual penetration without consent. Otherwise the sentencing judge accumulated, as to each of the remaining victims, a sentence for one of the indecent assault offences. In the case of YN and KC there was a reduction in those individual sentences in application of the totality principle.
82The orders for cumulacy and concurrency made by the primary sentencing judge were reasonably open to her Honour as an appropriate means to give effect to concerns as to totality so far as it was necessary to order a degree of accumulation of the sentences concerning each victim.
83In all the circumstances the total effective sentence of 9 years and 10 months' imprisonment imposed on the appellant was within the range open on a proper exercise of the sentencing discretion taking into account:
1.The maximum penalties for the 10 offences and the sentences imposed for the individual offences (none of those sentences being challenged on the basis that they are manifestly excessive).
2.The objective circumstances of the offending as a whole. These included that: (a) there were five victims; (b) each victim was vulnerable as regards the appellant; (c) the appellant groomed each of YN, AS, KL and TL - in this respect the offending involved planning and persistence; (d) insofar as the appellant offended in the course of his practice as a health practitioner, while performing purported treatment sessions, there was a serious breach of trust by the appellant - one that tends to undermine and adversely affect public trust and confidence in physiotherapists and health practitioners generally; and (e) there was an employer and employee relationship between the appellant and four of the victims.
3.The impact of the offending on the victims.
4.The total effective sentence imposed in Bascunan Cabrera (a case with some features comparable to the appellant's offending).
5.The place that the appellant's overall criminal conduct occupies on the scale of seriousness for offences of this kind.
6.The significance of general and personal deterrence and the need for punishment. We acknowledge that the sentencing judge found that the need for personal deterrence was attenuated in the present case. However, while less weighty, it still remains a relevant consideration. And, for reasons previously explained, general deterrence is a significant sentencing consideration given the context in which the appellant's offending occurred.
7.The appellant's personal antecedents and circumstances including his absence of any prior criminal history.
8.All other relevant sentencing factors as mentioned in these reasons.
84The total effective sentence of 9 years and 10 months' imprisonment imposed on the appellant bears a proper relationship to the overall criminality involved in all of the offences, viewed in their entirety, having regard to all relevant facts and circumstances and all relevant sentencing factors. Error should not be implied or inferred from the sentencing outcome in relation to the total effective sentence. The first limb of the totality principle was not infringed. The appellant's single ground of appeal fails.
Conclusion and orders
85The ground of appeal had a reasonable prospect of succeeding. The length of the total effective sentence, and the extent to which it exceeded the sentence imposed in Bascunan Cabrera, means that the appellant's challenge based on infringement of the first limb of the totality principle had a rational and logical prospect of succeeding. There should be leave to appeal on the appellant's single ground of appeal. However, for the reasons we have given, the ground fails and the appeal must be dismissed.
86Accordingly, we would make orders that:
1.The appellant has leave to appeal on the single ground of appeal stated in the appellant's case dated 19 September 2024.
2.The appeal is dismissed.
Schedule
| Count | Offence | Code | Maximum penalty | Sentence (cumulative / concurrent) |
| 3. | Unlawful and indecent assault of YN by touching her vagina | s 323 | 5 years | 7 months Reduced from 10 months for totality |
| 4. | Sexual penetration of YN by digital penetration of her vagina | s 325(1) | 14 years | 3 years 10 months |
| 5. | Sexual penetration of AS by digital penetration of her vagina | s 325(1) | 14 years | 4 years |
| 6. | Unlawful and indecent assault of KL by touching her vagina | s 323 | 5 years | 10 months |
| 7. | Unlawful and indecent assault of TL by touching her breast | s 323 | 5 years | 8 months |
| 8. | Sexual penetration of TL by digital penetration of her vagina | s 325(1) | 14 years | 4 years |
| 12. | Unlawful and indecent assault of KC by touching her breast | s 323 | 5 years | 7 months |
| 13. | Unlawful and indecent assault of KC by touching her breast | s 323 | 5 years | 7 months |
| 14. | Unlawful and indecent assault of KC by touching her breast | s 323 | 5 years | 7 months |
| 15. | Unlawful and indecent assault of KC by touching her breast | s 323 | 5 years | 5 months Reduced from 8 months for totality |
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
PD
Associate to the Hon Justice Vaughan
24 SEPTEMBER 2025
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