The State of Western Australia v Bascunan Cabrera

[2023] WASCA 34

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT  :   THE COURT OF APPEAL (WA)

CITATION:   THE STATE OF WESTERN AUSTRALIA -v- BASCUNAN CABRERA [2023] WASCA 34

CORAM:   BUSS P

MURPHY JA

MITCHELL JA

HEARD:   13 JANUARY 2023

DELIVERED          :   21 FEBRUARY 2023

FILE NO/S:   CACR 50 of 2022

BETWEEN:   THE STATE OF WESTERN AUSTRALIA

Appellant

AND

RODRIGO ANDRES BASCUNAN CABRERA

Respondent

ON APPEAL FROM:

Jurisdiction              :   DISTRICT COURT OF WESTERN AUSTRALIA

Coram:   SHARP DCJ

File Number            :   IND 2148 of 2019

Catchwords:

Criminal law - State appeal against sentence - Respondent convicted after trial of five counts of sexual penetration without consent and one count of unlawful and indecent assault - Respondent a practitioner of natural medicine - Five complainants - Offending occurred in the course of the complainants consulting the respondent for treatment - Sentence of 2 years' immediate imprisonment on each of four counts of sexual penetration without consent - Sentence of 18 months' immediate imprisonment on the other count of sexual penetration without consent - Total effective sentence of 5 years 6 months' imprisonment - Manifest inadequacy - Totality

Legislation:

Criminal Code (WA), s 323, s 325(1)

Result:

Appeal allowed
Trial judge's sentencing decision including the sentences imposed by his Honour set aside
Respondent resentenced

Category:    D

Representation:

Counsel:

Appellant	:	Mr R F Owen
Respondent	:	Mr C C Porter

Solicitors:

Appellant	:	Director of Public Prosecutions (WA)
Respondent	:	Henley Stirling Lawyers

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

Bennell v The State of Western Australia [2011] WASCA 174

Cavill v The State of Western Australia [2008] WASCA 108

CMB v Attorney‑General (NSW) [2015] HCA 9; (2015) 256 CLR 346

Green v The Queen [2011] HCA 49; (2011) 244 CLR 462

Grubisic v The State of Western Australia [2011] WASCA 147; (2011) 41 WAR 524

Jung v The Queen [2017] NSWCCA 24

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

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

Panda v The State of Western Australia [2017] WASCA 5; (2017) 264 A Crim R 330

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

The State of Western Australia v Hussian [2020] WASCA 186

JUDGMENT OF THE COURT:

1. This is a State appeal against sentence.

2. The respondent was charged on indictment with eight counts of sexual penetration without consent, contrary to s 325(1) of the Criminal Code (WA) (the Code), and one count of unlawful and indecent assault, contrary to s 323 of the Code. He pleaded not guilty to all of the counts.

3. In December 2020, the respondent was tried before Staude DCJ and a jury.  The jury was unable to reach a majority verdict on any of the counts.  The respondent was granted bail and a further trial date was fixed.

4. In March 2022, the respondent was retried before Sharp DCJ (the trial judge) and a jury.  He was convicted of five counts of sexual penetration without consent and one count of unlawful and indecent assault, and was acquitted on the other counts.

5. The respondent's alleged offending, and the verdicts which the jury returned in the retrial, are summarised in the table below.

Count	Charge	Verdict
Count 1	On a date unknown between 31 November 2012 and 1 March 2013, at Marmion, the respondent sexually penetrated AL without her consent, by touching her clitoris.	Guilty
Count 2	On a date unknown between 31 August 2015 and 1 October 2015, at Marmion, the respondent sexually penetrated NL without her consent, by penetrating her vagina with his finger.	Guilty
Count 3	On 25 February 2016, at Marmion, the respondent sexually penetrated FJ without her consent, by penetrating her vagina with his finger.	Guilty
Count 4	On 30 March 2016, at Marmion, the respondent sexually penetrated SW without her consent, by penetrating her vagina with his finger.	Not guilty
Count 5	On the same date and at the same place as in count 4, the respondent sexually penetrated SW without her consent, by penetrating her anus with his finger.	Not guilty
Count 6	On a date unknown between 31 July 2016 and 1 October 2016, at Marmion, the respondent sexually penetrated TC without her consent, by penetrating her vagina with his finger.	Guilty
Count 7	On 8 September 2016, at Marmion, the respondent sexually penetrated LL without her consent, by penetrating her vagina with his finger.	Not guilty
Count 8	On a date unknown between 31 August 2016 and 1 March 2017, at Marmion, the respondent unlawfully and indecently assaulted CM by touching her breast.	Guilty
Count 9	On the same date and at the same place as in count 8, the respondent sexually penetrated CM without her consent, by penetrating her vagina with his finger.	Guilty

1. The maximum penalty for the offence of sexual penetration without consent, contrary to s 325(1) of the Code, is 14 years' imprisonment. The maximum penalty for the offence of unlawful and indecent assault, contrary to s 323 of the Code, is 5 years' imprisonment.

2. On 16 June 2022, the trial judge imposed on the respondent individual sentences of immediate imprisonment as follows:

   (a)count 1:   2 years;

   (b)count 2:  2 years;

   (c)count 3:  18 months;

   (d)count 6:  2 years;

   (e)count 8:  9 months; and

   (f)count 9:  2 years.

3. His Honour ordered that the individual sentences for counts 1, 2 and 8 be served concurrently and that the individual sentences for counts 3, 6 and 9 be served cumulatively.  The total effective sentence was therefore 5 years 6 months' imprisonment.  The total effective sentence was backdated to 29 March 2022.  A parole eligibility order was made.

4. The State relies upon three grounds of appeal.

5. Ground 1 alleges that the trial judge erred in sentencing the respondent for count 3 on the mistaken basis that the offence was one of indecent assault, whereas the offence was actually one of sexual penetration without consent.

6. Ground 2 alleges, in essence, that the individual sentences imposed on the respondent for counts 1, 2, 3, 6 and 9 were manifestly inadequate as to length.

7. Ground 3 alleges that the total effective sentence infringed the first limb of the totality principle in that it failed to reflect the overall criminality of the offending conduct.

8. Leave to appeal on each of the grounds has been granted.

9. We would allow the appeal.  The trial judge's sentencing decision (including the sentences imposed by his Honour) should be set aside and this court should resentence the respondent.

The facts and circumstances of the offences of which the appellant was convicted

1. The facts and circumstances of the offending, as found by the trial judge, were as follows.  At the relevant times, the respondent practised as a practitioner of natural medicine.  The offending the subject of the convictions occurred while the relevant complainants visited the respondent in his capacity as a practitioner of natural medicine.  

Count 1

1. Between 31 November 2012 and 1 March 2013, the complainant the subject of count 1, AL, was aged 18 or 19.  She had been experiencing symptoms of irritable bowel syndrome and booked a consultation with the respondent.  AL was accompanied to the appointment by her boyfriend.

2. The respondent performed iridology on AL and told her that she had thrush.  AL said that she did not believe she had thrush.  The respondent insisted that she did have thrush and asked to examine her.  AL agreed.  The respondent told AL to remove her clothes from the lower part of her body.  AL was uncomfortable but did as the respondent said and laid on the examination table.

3. The respondent stood next to AL with his back to her boyfriend.  The respondent used the fingers on his left hand to part AL's vagina and touched her clitoris with his right hand.  The respondent repeatedly told AL that she had thrush.  AL told the respondent that she knew what thrush felt like and she did not have it.

4. After the examination, the respondent told AL to get dressed.  The respondent gave her a note with supplements to purchase.  AL paid for the appointment and supplements and left the premises.

Count 2

1. Between 31 August 2015 and 1 October 2015, the complainant the subject of count 2, NL, was aged 31.  NL was experiencing pain in her shoulder and knee.

2. During NL's consultation with the respondent, the respondent asked NL to remove her top.  NL took off her top but kept her bra on.  The respondent used a metal hook-type implement and said that he was putting her back into place.  The respondent then asked NL to take her pants off.  She took her pants off but kept her underwear on.  The respondent manipulated NL's knee and told her that he was putting her knee into place.  NL got dressed.

3. The respondent then performed iridology on NL and told her that she might have thrush.  The respondent said that thrush is a yeast build-up in the mouth and vagina, and said he had to check her vagina.  NL agreed because she felt desperate about the pain in her knee and thought it somehow might help.  NL laid on her back and removed her pants and underwear.  She was expecting an external examination of her vagina, but the respondent opened her vagina with one hand and inserted a finger from his other hand.  The respondent moved his finger around against NL's vaginal walls.

4. The examination lasted about two minutes.  The respondent told NL that he had found inflammation.  The respondent recommended that NL change her diet and wrote down the names of some herbal medicines.  He told her to make an appointment for a month's time.  NL never returned.

Count 3

1. On 25 February 2016, the complainant the subject of count 3, FJ, was aged 33.  FJ had had one prior consultation with the respondent in 2012 or 2013.  FJ visited the respondent in 2016 due to recurring thrush, which doctors had been unable to help her with.  FJ visited the respondent as she believed that a naturopath was a type of doctor.

2. The respondent performed iridology on FJ.  The respondent said words to the effect, 'I can't treat it if I don't know what I'm dealing with'.  The respondent asked FJ to remove her shorts and underwear.  FJ complied.  The respondent touched FJ near her vagina.  FJ reluctantly spread her legs.  The respondent's fingers pressed down from the top near FJ's clitoris and down around her labia.  The touching lasted about a minute.

3. The respondent recommended FJ purchase some vitamins, which she bought at the reception counter. FJ never returned.

Count 6

1. Between 31 July 2016 and 1 October 2016, the complainant the subject of count 6, TC, was aged 29.  TC had suffered migraines for years and had also been diagnosed with coeliac disease.

2. The respondent performed iridology on TC.  The respondent told TC that her kidneys were overloaded, that she had a gastric infection and that he did not think that she had coeliac disease.

3. The conversation turned to sexual intercourse.  TC was taken aback.  She said intercourse was fine but sometimes painful.  The respondent asked her about contraception and said that there could be dryness caused by ulcers on her vaginal walls.  He asked to have a look.  TC trusted him as she considered him to be a medical professional.

4. TC undressed and lay on the examination table with her knees up.  The respondent used his fingers to spread apart her vagina.  His fingers circled the entrance to the vaginal canal.  The respondent then inserted two fingers into her vagina to a depth of about 3 cm and felt around the inside of her vagina.  TC felt 'weird' and uncomfortable about what was occurring.

5. After the examination, the respondent said that he wanted to see TC again in three months.  TC paid for the consultation and some supplements but never returned.

Counts 8 and 9

1. Between 31 August 2016 and 1 March 2017, the complainant the subject of counts 8 and 9, CM, was aged 26.  CM had been diagnosed several years earlier with lupus, which caused her fatigue, joint pain and rashes.  CM was 'at her lowest point' when she decided to consult the respondent, after hearing that he was an iridologist.

2. The respondent performed iridology on CM.  The respondent said it looked like CM had a kidney and liver issue, and that she had bad 'gut health'.  He asked her if she suffered from any urinary tract infections or if she had any discharge from her vagina.  CM said that she did not.  CM told the respondent about her lupus diagnosis and symptoms.  The respondent told her that he had successfully treated someone who had lupus.  CM was optimistic that the respondent could help her.

3. The respondent mentioned that calcification or lymphoma or both could be the cause of her aches and pains.  He asked to look at her joints and chest.  CM removed her top and bra.  She was not given anything to cover herself.  The respondent examined her breasts by touching them.  That constituted the indecent assault the subject of count 8.  That part of the examination lasted a few moments.  

4. The respondent spoke to CM about vaginosis, a bacterial condition that causes vaginal discharge.  The respondent asked if he could check her for it.  CM said that she was not prepared to do that on that day.  The respondent said that she did not have to, but it would be preferable to diagnose it that day.  CM agreed.

5. The respondent told her to remove her pants and underwear.  The respondent parted her legs.  He used a torch.  CM felt very uncomfortable.  The respondent inserted a finger into her vagina and moved it around the walls of her vagina.  That constituted the sexual penetration the subject of count 9.

6. The respondent continued to talk about calcification and vaginosis and wrote down the names of supplements that CM should use.  The respondent suggested that she return for another consultation in four weeks, but she did not return.

The trial judge's sentencing remarks

1. The trial judge referred to the facts and circumstances of the offending in his sentencing remarks.

2. His Honour also referred to the respondent's personal circumstances and antecedents.

3. The respondent was aged 35 at the time of the first offence and was 44 when sentenced.  The respondent was born in Chile and moved to Australia with his family in 1983.

4. The respondent completed year 12 and then obtained a Bachelor of Iridology and an Advanced Diploma in Natural Medicine.  The respondent began working in his father's naturopath business in 2003.  The respondent and his brother took over their father's naturopath business in about 2012.

5. The respondent is in good physical and mental health.  He has no issues with drugs and alcohol.

6. The respondent has been married for 10 years and has two children.  One of the respondent's sons was diagnosed with autism.  Since the respondent's incarceration, his wife has become the full-time carer and sole wage earner within the family.  The trial judge accepted that this is 'particularly difficult in the circumstances of your son['s] medical condition' (ts 7).

7. His Honour found that the respondent's offending was aggravated in that the respondent was in a position of trust vis-à-vis the complainants, which he ultimately breached by conducting examinations that were not medically warranted.

8. The trial judge described the respondent's offending as 'very serious' (ts 8).  The offending was 'opportunistic' and 'carried out for sexual gratification which occurred over a considerable, lengthy period of time' (ts 8 - 9).

9. His Honour said that the victims were vulnerable in that they trusted the respondent to assist them with their ailments.  The complainant the subject of counts 8 and 9 (that is, CM) was especially vulnerable because she suffered from lupus, she felt that she was 'out of options' and she was desperate for help.  His Honour observed that the offending may well impact upon the willingness of some of the complainants to seek medical advice in the future.

10. The respondent has no prior criminal history.  The trial judge was provided with numerous positive references about the respondent that described him as 'a healer, as a very professional person, as a friend' (ts 8).  His Honour found that the respondent was 'a person of good reputation', but had some difficulty finding that the respondent is 'a person of good character' (ts 9).

11. His Honour was unable to find that the respondent was remorseful.  This was because the respondent maintained that the acts did not occur and protested his innocence throughout.  His Honour found that the respondent's risk of re-offending is attached to his role as a naturopath.  As the respondent had found employment elsewhere following the charges, his Honour considered that the respondent's risk of re-offending is low.

12. The trial judge was positively satisfied that the only appropriate sentencing disposition was a term of immediate imprisonment. As his Honour was of the view that the respondent was unlikely to re‑offend, the overriding sentencing consideration was general deterrence. His Honour then imposed the sentences set out at [7] above.

Ground 1:  the alleged error

1. As we have mentioned, ground 1 alleges that the trial judge erred in sentencing the respondent for count 3 on the mistaken basis that the offence was one of indecent assault, whereas the offence was actually one of sexual penetration without consent.

Ground 1:  the individual sentences

1. Each of counts 1, 2, 3, 6 and 9 involved an offence of sexual penetration without consent.  The trial judge imposed a sentence of 2 years' immediate imprisonment for each of counts 1, 2, 6 and 9 and a sentence of 18 months' immediate imprisonment for count 3.  Count 8 involved an offence of indecent assault for which his Honour imposed a sentence of 9 months' immediate imprisonment.

Ground 1:  the trial judge's sentencing remarks

1. The sentencing remarks contain relevant findings and observations as follows:

   (a)His Honour noted, correctly, at the outset of his sentencing remarks that the respondent was to be sentenced for five counts of sexual penetration without consent and one count of unlawful and indecent assault (ts 1153).

   (b)His Honour began his findings and observations in relation to count 3 by stating (ts 1155):

   Count 3, indecent assault [FJ].

   (c)His Honour recounted the facts and circumstances of the offending on count 3, including (ts 1155):

   You touched her near her vagina.  Reluctantly she spread her legs.  Your fingers pressed down from the top near her clitoris and down around the lips of her vagina.

   (d)His Honour noted, correctly, the maximum penalty for the offence of sexual penetration without consent and the maximum penalty for the offence of unlawful and indecent assault (ts 1157 ‑ 1158).

   (e)His Honour observed that (ts 1159):

   You subjected [the complainants] to physical examinations and on one occasion, the touching of breasts.  In the other five occasions, digital penetration.

   (f)His Honour made this finding (ts 1159):

   I find that the penetrations and indecent assault were carried out for sexual gratification which occurred over a considerable, lengthy period of time between 2013 and 2017.

Ground 1:  the State's submissions

1. Counsel for the State submitted that, having regard to the trial judge's sentencing remarks as a whole, it might be considered that his Honour's reference (at ts 1155) to count 3 involving the indecent assault of FJ was merely a slip.  However, it was submitted that there was no rational explanation for the sentence of 18 months' immediate imprisonment imposed for count 3 compared to the sentence of 2 years' immediate imprisonment imposed for each of counts 1, 2, 6 and 9, other than that his Honour misdirected himself as to the nature of the offence the subject of count 3 and, consequently, the applicable maximum penalty for that count.  Counsel argued that there was little, if anything, distinguishing the nature of the offending on count 3 from the nature of the offending on counts 1, 2, 6 and 9.  It followed, so it was submitted, that the only rational (and apparent) explanation for the difference in the sentences was that his Honour erroneously sentenced for count 3 on the basis that it was an offence of unlawful and indecent assault and not an offence of sexual penetration without consent.

Ground 1:  the respondent's submissions

1. Counsel for the respondent submitted that the trial judge's reference to count 3 as an offence involving the indecent assault of FJ was 'a labelling error' and that the error did not make any material difference to the sentence imposed having regard to:

   (a)his Honour's recitation of the facts and circumstances of the charged offence, which recitation was consistent with the evidence given by FJ at the trial; and

   (b)the fact that the sentence for count 3 was ordered to be served cumulatively, which indicated that his Honour had reduced that sentence for totality purposes without stating that he had done so.

2. It was also submitted that, even if his Honour did sentence the respondent for count 3 on an incorrect basis, as alleged by the State, the error did not make a material difference to the total effective sentence.

Ground 1:  its merits

1. In our opinion, it is apparent, when the impugned statement by the trial judge is read in the context of his Honour's sentencing remarks as a whole, that his Honour's reference to count 3 involving the 'indecent assault' of FJ was merely an unintended mistake in speech.  That is the only reasonable conclusion having regard to his Honour's other findings and observations that we have set out at [52(a), (c), (d), (e) and (f)] above and having regard to the fact that his Honour presided over a trial of all of the charges in the indictment.

2. His Honour did not explain why he imposed individual sentences of 2 years' immediate imprisonment for counts 1, 2, 6 and 9, but only a sentence of 18 months' imprisonment for count 3.  However, it is apparent from his Honour's findings of fact that the penetration the subject of count 3 (while very serious) was less invasive than the penetrations the subject of counts 2, 6 and 9 (all of which involved digital penetration of the vaginal canal) and slightly less invasive than the penetration the subject of count 1.

3. Ground 1 has not been made out.

Ground 2:  the alleged error

1. As we have mentioned, ground 2 alleges, in essence, that the individual sentences imposed on the respondent for counts 1, 2, 3, 6 and 9 were manifestly inadequate as to length.

2. No complaint is made about the individual sentence imposed for count 8.

Ground 2:  the State's submissions

1. Counsel for the State submitted that the individual sentences for each of counts 1, 2, 3, 6 and 9 were so inadequate as to manifest error, having regard to:

   (a)the maximum penalty for each offence;

   (b)the serious nature of each offence and the circumstances of its commission;

   (c)the need for each sentence to reflect adequately general and personal deterrence as well as appropriate punishment;

   (d)the respondent's personal circumstances; and

   (e)the requirement that each sentence be consistent with the standards of sentencing customarily observed for offending of this nature.

2. Counsel referred to a number of previous decisions of this court including Panda v The State of Western Australia;[1] Taylor v The State of Western Australia;[2] and Musgrave v The State of Western Australia.[3]  It was submitted that the individual sentences for counts 1, 2, 6 and 9 were not merely low in relative terms, but were patently irreconcilable with recent appellate dispositions in broadly comparable factual settings.

   [1] Panda v The State of Western Australia [2017] WASCA 5; (2017) 264 A Crim R 330.

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

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

3. Counsel noted that none of the individual sentences imposed on the respondent for counts 1, 2, 3, 6 and 9 was reduced for totality.

4. It was submitted that considerably higher individual sentences should have been imposed for each of counts 1, 2, 3, 6 and 9.

Ground 2:  the respondent's submissions

1. Counsel for the respondent emphasised that:

   (a)each offence was relatively brief in duration;

   (b)the offending was opportunistic;

   (c)apart from the act of penetration itself, the respondent did not say or do anything during the commission of any offence that increased the level of perversion;

   (d)there were no threats, violence or coercion;

   (e)there were lengthy delays between the commission of the offences and the making of complaints to police; and

   (f)there were five separate acts committed by the respondent over a period of about five years.

2. Counsel relied upon the respondent's favourable personal circumstances, including the absence of a prior criminal record and the trial judge's finding that the respondent was at a low risk of re‑offending.

3. Counsel contended that the individual sentences for counts 1, 2, 3, 6 and 9 were not outside the broad range of sentences that have been imposed for acts of digital penetration of the vagina without consent.

4. Although acknowledging that the individual sentences may be considered to be at the lower end of the available discretionary range, the sentences were not so low as to demonstrate error by his Honour in the exercise of the sentencing discretion.

Ground 2:  its merits

1. The principles applicable where the State asserts that a sentence is manifestly inadequate and relevant general sentencing principles are set out in TheState of Western Australia v Hussian.[4]  It is unnecessary to repeat them.

   [4] TheState of Western Australia v Hussian [2020] WASCA 186 [88] ‑ [97] (Buss P, Mazza & Beech JJA).

2. As we have mentioned, the maximum penalty for the offence of sexual penetration without consent, contrary to s 325(1) of the Code, is 14 years' imprisonment.

3. As this court noted in McNally v The State of Western Australia,[5] the general sentencing standards for offences contrary to s 325(1) of the Code are well established. There is, however, no tariff for those offences because of the great variation that is possible in the circumstances of the offending and the offenders. The sentence to be imposed in a particular case depends upon its individual facts and circumstances, having regard to the maximum penalty and all relevant sentencing factors.

   [5] McNally v The State of Western Australia [2019] WASCA 93 [53] (Buss P & Beech JA).

4. We have considered a number of previous appeals against sentence which involved the offence of sexual penetration without consent, contrary to s 325(1) of the Code. Those cases include Cavill v The State of Western Australia;[6] Mountain v The State of Western Australia;[7] Miles v The State of Western Australia;[8] Bennell v The State of Western Australia;[9] Grubisic v The State of Western Australia;[10] Taylor; and Musgrave.  It is unnecessary to repeat the relevant facts and circumstances of the cases we have considered or the sentences that were imposed.  There were some comparable features between some of those cases and the present case, but there are also distinguishing features.

   [6] Cavill v The State of Western Australia [2008] WASCA 108.

   [7] Mountain v The State of Western Australia [2009] WASCA 161.

   [8] Miles v The State of Western Australia [2010] WASCA 93.

   [9] Bennell v The State of Western Australia [2011] WASCA 174.

   [10] Grubisic v The State of Western Australia [2011] WASCA 147; (2011) 41 WAR 524.

5. In Panda, the appellant was a medical practitioner and the complainants were his patients. The appellant was convicted, after trial, of eight counts of unlawful and indecent assault, contrary to s 323 of the Code, against five patients. The offending occurred at the medical practice where the appellant worked. He falsely pretended that the physical conduct, which he engaged in for his own sexual gratification, was done for legitimate medical reasons in the course of examining, diagnosing or treating the patients' medical conditions. The appellant was sentenced to 21 months' immediate imprisonment on each of two counts and to a total effective sentence of 5 years' immediate imprisonment. The appellant appealed against sentence on grounds which included that the individual sentences of 21 months' immediate imprisonment were manifestly excessive and the total effective sentence infringed the first limb of the totality principle. His appeal was dismissed. Buss P said (Mazza & Mitchell JJA agreeing) [126]:

   The objective facts and circumstances of the offending, in the context of her Honour's unchallenged findings of fact, justified her Honour's characterisation of the offending as involving a 'serious breach of trust'.  The seriousness of the 'breach of trust' was underscored by the vulnerability of the complainants and the predatory nature of the appellant's conduct.  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.

6. Similar considerations to those mentioned in that passage apply to an allied health professional (for example, a physiotherapist) or an alternative health practitioner (including, relevantly, a practitioner of natural medicine) who sexually offends against patients while treating them.  See the observations in Jung v The Queen[11] in the context of an appeal against sentence by a physiotherapist who was convicted of a series of indecent assault offences against six of his patients during the course of treatment.

   [11] Jung v The Queen [2017] NSWCCA 24 [66] (Johnson J; Hoeben CJ at CL & Latham J agreeing).

7. A number of propositions are apparent from the text of s 325(1) of the Code and the case law (in particular, the decision of this court in Musgrave).

8. First, the inclusion of several categories of sexual penetration within the offence created by s 325(1) does not carry any implication that each category is as reprehensible as another if done without consent. Attention must be directed to where the facts and circumstances of the particular offence and the particular offender lie on the spectrum that extends from the least serious instances of offending against s 325(1) to the worst category of offending against that provision, being those offences so grave as to warrant the maximum penalty.

9. Secondly, there is no hierarchy of the seriousness of the several categories of sexual penetration within the offence created by s 325(1). The facts and circumstances of each particular case determine the seriousness of the offence.

10. Thirdly, the absence of any hierarchy of sexual penetration means that some forms of penetration cannot, in any and all circumstances, be considered less serious than others. That is, there can be no general assumption that some forms of penetration are intrinsically less serious than other forms of penetration. The seriousness of an offence against s 325(1) must be determined having regard to the facts and circumstances of the particular case.

11. Fourthly, the decisions of this court and its predecessor indicate that where an offender is convicted after trial of a single count of digital penetration of the vagina, contrary to s 325(1), and the complainant is of or over the age of 16, a sentence of 15 months to 3 years 6 months' immediate imprisonment is not unusual.

12. Fifthly, it must be emphasised that a sentence outside the range identified at [79] above will not necessarily be manifestly excessive or manifestly inadequate. The circumstances of offending and offenders vary widely. Sentences significantly beyond those ranges may, having regard to the maximum penalty and the relevant facts and circumstances, be justified in particular cases.

13. In the present case, the facts and circumstances of the respondent's offending in relation to counts 1, 2, 3, 6 and 9 were very serious.  The respondent was in a position of trust in relation to the complainants and he breached that trust.  The complainants regarded the respondent as a professional healer and they put their faith in him.  The complainants suffered from a variety of ailments and were vulnerable.  The impact of the respondent's offending upon the complainants was significant.  His offending adversely affected their trust in medical professionals.  The relevant examinations carried out by the respondent were not medically warranted.  His motivation was sexual gratification.  The offending was brazen, especially in relation to the complainant the subject of count 1 (that is, AL), whose boyfriend at the time was in the consulting room when the offending occurred.  The respondent's offending against the complainants extended over a five-year period.

14. There were a number of mitigating factors.  The respondent did not have a prior criminal record.  The authors of a number of character references spoke well of him.  The trial judge found that the offending was opportunistic, but that finding was qualified by his Honour's observation that the offending was carried out over a period of years.  The respondent's risk of re‑offending is low in that he has ceased practising natural medicine and the offending occurred in the course of that practice.

15. The respondent was not youthful or inexperienced for sentencing purposes.  He did not evince remorse and he did not demonstrate insight into his offending.  He did not accept responsibility for what he had done.  Although the respondent was entitled to proceed to trial, he did not have the benefit that pleas of guilty would have brought.

16. The points emphasised by counsel for the respondent in his submissions (see [65] above) do not diminish the seriousness of what the respondent actually did.  Those points merely indicate that the offending could have been worse.  If the offending had been worse it would have required a more severe sentencing outcome than the outcome that was appropriate having regard to the actual facts and circumstances.

17. In our opinion, each individual sentence imposed on the respondent for counts 1, 2, 3, 6 and 9 was not commensurate with the seriousness of the offence.  We are satisfied, having regard to all relevant facts and circumstances and all relevant sentencing factors (including the mitigating factors we have mentioned), that the length of each individual sentence was unreasonable or plainly unjust.

18. We consider that, when each individual sentence for counts 1, 2, 3, 6 and 9 is viewed from the perspective of:

    (a)the maximum penalty;

    (b)the facts and circumstances of the offence;

    (c)the vulnerability of the complainant;

    (d)the general pattern of sentencing for offences of this kind;

    (e)the importance of denunciation of the respondent's criminal conduct and general deterrence as sentencing factors; and

    (f)the mitigating factors,

    each sentence was not merely 'lenient' or 'at the lower end of the available range'.

19. Each individual sentence for counts 1, 2, 3, 6 and 9 was substantially less than the sentence open to his Honour on a proper exercise of the sentencing discretion.  Each sentence was manifestly inadequate.

20. Ground 2 has been made out.

Ground 3:  the alleged error

1. As we have mentioned, ground 3 alleges that the total effective sentence infringed the first limb of the totality principle in that it failed to reflect the overall criminality of the offending conduct.

Ground 3:  the State's submissions

1. Counsel for the State submitted that a proper reflection of the total criminality involved in the respondent's offending required a significantly higher total effective sentence in order properly to mark the seriousness of the respondent's overall offending against the complainants.

Ground 3:  the respondent's submissions

1. Counsel for the respondent accepted that the total effective sentence imposed on the respondent was at the lower end of the range of sentences open to the trial judge on a proper exercise of the sentencing discretion.  However, it was submitted that the total effective sentence was not unreasonable or plainly unjust.  In the circumstances, having regard to all relevant sentencing factors, the total effective sentence did not infringe the first limb of the totality principle.

Ground 3:  its merits

1. The nature and content of the first limb of the totality principle was explained in Hussian [132] ‑ [134]. It is unnecessary to repeat the explanation.

2. In our opinion, the total effective sentence of 5 years 6 months' imprisonment did not bear a proper relationship to the overall criminality involved in all of the respondent's offences, viewed together, and having regard to all relevant facts and circumstances and all relevant sentencing factors.  As we have mentioned, in the context of ground 2, each individual sentence for counts 1, 2, 3, 6 and 9 was manifestly inadequate.  Significant weight had to be given in deciding upon the total effective sentence to the denunciation of the respondent's criminal conduct and to general deterrence.  Also, significant weight had to be given to the importance of properly marking the respondent's offending against five different complainants.  The objective facts and circumstances of the respondent's offending, viewed as a whole, were very serious.  The total effective sentence was unreasonable or plainly unjust.  It was not merely 'lenient' or 'at the lower end of the available range'.  The total effective sentence was substantially less than the total effective sentence that was open to the trial judge on a proper exercise of the sentencing discretion.

3. Ground 3 has been made out.

The residual discretion

1. The difference in the approach of this court between offender appeals against sentence and State appeals against sentence is explicable by the purpose underpinning each category of appeals.  Offender appeals are concerned with the correction of error in the particular case.  State appeals are concerned with establishing principles for the guidance of sentencing judges.  See Green v The Queen[12] and CMB v Attorney‑General (NSW).[13]

   [12] Green v The Queen [2011] HCA 49; (2011) 244 CLR 462 [1] (French CJ, Crennan & Kiefel JJ).

   [13] CMB v Attorney‑General (NSW) [2015] HCA 9; (2015) 256 CLR 346 [55] (Kiefel, Bell & Keane JJ).

2. If this court is to allow a State appeal against sentence and to impose a heavier sentence on the offender, the State must establish two matters. First, the State must make out an appellable error in the exercise by the sentencing judge of his or her discretion. Secondly, the State must negate any reason why the residual discretion of this court under s 31(4) of the Criminal Appeals Act 2004 (WA) not to interfere should be exercised.

3. In the present case, counsel for the respondent disclaimed any reliance upon the residual discretion (appeal ts 15 ‑ 16).

4. In our opinion, the intervention of this court in the appeal is necessary to maintain adequate standards of sentencing.  The individual sentences for counts 1, 2, 3, 6 and 9 and the total effective sentence were substantially less than the sentences open on a proper exercise of the sentencing discretion.  Appellable error has been very clearly established.  The public interest in the maintenance of appropriate sentencing standards for very serious offending of the kind charged in counts 1, 2, 3, 6 and 9 requires that the appeal be allowed, the sentences imposed by the trial judge be set aside and the respondent resentenced.

The outcome of the appeal and the resentencing of the respondent

1. The appeal should be allowed.

2. The trial judge's sentencing decision, including the sentences imposed by his Honour, should be set aside. 

3. This court has the material necessary to resentence the respondent. 

4. We have reduced each sentence that we would otherwise have imposed for each offence to reflect the mitigating factors referred to by his Honour.

5. Counsel for the respondent informed this court at the hearing of the appeal that the respondent has been of good behaviour whilst incarcerated, but otherwise there were no new matters to be put before this court in connection with any resentencing (appeal ts 15).  We take the respondent's good behaviour in custody into account in resentencing him.

1. We would exercise the sentencing discretion afresh by imposing sentences of immediate imprisonment as follows:

   (a)count 1: 3 years 9 months;

   (b)count 2: 3 years 9 months;

   (c)count 3: 3 years 3 months;

   (d)count 6: 3 years 9 months;

   (e)count 8: 9 months; and

   (f)count 9: 3 years 6 months (reduced from 3 years 9 months in the application of the totality principle).

2. The new sentence for count 9 should be served cumulatively upon the new sentence for count 1.  The other new sentences should be served concurrently with each other and concurrently with the new sentence for count 1.  The new total effective sentence is therefore 7 years 3 months' imprisonment.

3. The new total effective sentence of 7 years 3 months' imprisonment should be taken to have taken effect on 29 March 2022.  The respondent is eligible for parole.  He will be eligible to be considered for release on parole when he has served 5 years 3 months in custody calculated from 29 March 2022.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.

SG

Research Associate to the Honourable President Buss

21 FEBRUARY 2023