The State of Western Australia v HNU - [2023] WASCA 6

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT :   THE COURT OF APPEAL (WA)
CITATION:   THE STATE OF WESTERN AUSTRALIA -v- HNU [2023] WASCA 6
CORAM:   BEECH JA
VAUGHAN JA
HALL JA

HEARD:   19 DECEMBER 2022
DELIVERED          :   5 JANUARY 2023
FILE NO/S:   CACR 14 of 2022
BETWEEN:   THE STATE OF WESTERN AUSTRALIA
Appellant
AND
HNU
Respondent

ON APPEAL FROM:
Jurisdiction              :   DISTRICT COURT OF WESTERN AUSTRALIA
Coram:   GILLAN DCJ
File Number            :   XXX of XXXX

Catchwords:

Criminal law - State appeal against sentence - Sexual penetration without consent - Whether sentence manifestly inadequate

Legislation:

Criminal Code (WA)
Sentencing Act 1995 (WA)

Result:

Appeal allowed
Respondent resentenced

Category: B

Representation:

Counsel:

Appellant	:	Mr L M Fox SC & Ms G N Beggs
Respondent	:	Mr J Gullaci SC & Mr W C Yoo

Solicitors:

Appellant	:	Director of Public Prosecutions (WA)
Respondent	:	Aboriginal Legal Service (WA)

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

Costa v The State of Western Australia [2019] WASCA 3.
Cavill v The State of Western Australia [2008] WASCA 108. ,
CMB v Attorney General (NSW) [2015] HCA 9; (2015) 256 CLR 346.
Grubisic v The State of Western Australia [2011] WASCA 147; 41 WAR 254.
Kabambi v The State of Western Australia [2019] WASCA 44.
Lyons v The State of Western Australia [2022] WASCA 81; 100 MVR 420.
Moore v The State of Western Australia [2019] WASCA 35.
Munda v The State of Western Australia [2013] HCA 38; (2013) 249 CLR 600.
Musgrave v The State of Western Australia [2021] WASCA 67.
Plumley v The State of Western Australia [2018] WASCA 33.
The State of Western Australia v Akizuki [2008] WASCA 267; (2008) 192 A Crim R 373.
The State of Western Australia v Doualeh [2014] WASCA 3.
The State of Western Australia v Hussian [2020] WASCA 186.
The State of Western Australia v Porter [2008] WASCA 154.
The State of Western Australia v Richards [2008] WASCA 134; 37 WAR 229.
VIM v The State of Western Australia [2005] WASCA 233; (2005) 31 WAR 1.
Warburton v The State of Western Australia [2009] WASCA 113; 196 A Crim R 361.
WRN v The State of Western Australia [2017] WASCA 145.

JUDGMENT OF THE COURT:

This is a State appeal against sentence.
The respondent was convicted on his plea of guilty of one count of sexually penetrating the victim without her consent by introducing his penis into her mouth, contrary to s 325(1) of the Criminal Code (WA). He was sentenced to 2 years and 6 months' immediate imprisonment, with an order that he be eligible for parole.
The appellant contends that the sentence imposed was manifestly inadequate. In support of that ground the appellant points to the maximum penalty of 14 years' imprisonment and the circumstances of the offence. In particular, the offence was accompanied by violence, the victim was vulnerable, the offence involved a significant breach of trust, and there was an element of persistence.
In our view, the factors referred to by the appellant place this into a serious category of offending. Whilst there were some factors personal to the respondent that stood in his favour, generally such factors have less weight in relation to offences of this nature. When all relevant matters are considered, a significantly higher sentence than that imposed was clearly justified and required. The appellant has established that the sentence imposed was so unreasonable or plainly unjust that it must be concluded that there has been some misapplication of principle. Appellable error is to be inferred from the sentencing outcome.
The appeal should be allowed, the sentence imposed by the learned sentencing judge set aside and the respondent resentenced. We would impose a sentence of 3 years and 4 months' immediate imprisonment.

The factual circumstances

The facts of the offence were not and are not in dispute. They are as follows.
The respondent is the de facto partner of the victim's sister. On the night of Thursday, 26 November 2020, the victim was drinking with her friends and family at a house in a regional town. The victim's sister and the respondent were also present at that house. The victim left the house at around midnight and walked to another house in the town where she was staying at that time. She went to sleep on a mattress in the front room by herself.[1]
[1] Sentencing ts 15.
At around 7.00 am the next morning, the victim woke up and briefly spoke to her grandmother before going back to sleep. She was alone in the house at this time. Not long after, the victim heard the front door open and saw the respondent walk in through the unlocked front door. The victim got up and walked to the toilet. She told the respondent to leave.[2]
[2] Sentencing ts 15.
After using the toilet, the victim walked to the sink in the laundry at the back of the house. The respondent came into the laundry and closed the door behind him. The victim said, 'Don't be silly', and the respondent said, 'I want to have sex with you'. The victim said, 'No'. The respondent then grabbed her by the arm and said, 'I will tell your sister we have had sex before'.[3]
[3] Sentencing ts 16.
The victim shouted for help. The respondent put both his hands on the victim's mouth and said, 'No one can hear you'. The victim shouted, 'I can't breathe', and managed to open the laundry door and run into the lounge room.[4]
[4] Sentencing ts 16.
The respondent grabbed the victim and pushed her onto a couch. He took off his shorts before holding the victim's throat with two hands. He pushed his penis into the victim's mouth. The victim said, 'No, don't do this to me'.[5]
[5] Sentencing ts 16.
The respondent held the victim's neck and forced his penis into her mouth again while saying, 'You suck me off'. He pushed his penis inside the victim's mouth about three times while she was being held down on the couch.[6]
[6] Sentencing ts 16.
The victim shouted, 'I need water, I can't breathe'. The respondent got up and went through to the kitchen. The victim took the opportunity to run out of the house. She ran to a nearby house and told a neighbour that the respondent had tried to rape her. She then got into her car and drove off.[7]
[7] Sentencing ts 16.
The neighbour went to the victim's house and saw the respondent inside. The respondent told the neighbour that he was trying to recover some money from the victim, before walking away.[8]
[8] Sentencing ts 16.
Meanwhile, the victim drove to where her partner was and told him what had happened. She then drove to the police station with her partner but left without speaking to police. Later that day police went and spoke to the victim at her aunt's house.[9]
[9] Sentencing ts 16.
On 29 November 2020 the respondent was located and arrested by police. He declined to answer police questions during a recorded interview. He was charged and, following negotiations with the prosecution, entered a plea of guilty.[10]
[10] Sentencing ts 16.

Respondent's personal circumstances

The respondent was 47 at the time of the offending and 48 at the time of sentencing. He was born in the regional town where the offence occurred and has spent his entire life there other than for periods when he was working away and a period in 2019 to 2020 when he attended a rehabilitation program. He is a Yindjibarndi man who has gone through traditional law ceremonies and participates in cultural activities.[11]
[11] Sentencing ts 30.
The respondent experienced a difficult early life. His parents drank heavily and violence was common. In particular, he witnessed his father being violent towards his mother. He has reported that he and his seven siblings were trapped in this violent environment and sometimes would be taken away by their grandmother. The respondent does not remember exactly when his parents stopped drinking. However, once they had given up alcohol, they would take the respondent and his siblings out hunting and fishing.[12]
[12] Sentencing ts 31.
The respondent attended the local primary school and then high school in a nearby town. In year 9, he was sent to Perth to continue his high school education, but returned to his home town part way through the year, ending his formal education.[13]
[13] Sentencing ts 30.
The respondent returned to his home town when he was aged 14 or 15. He soon began drinking alcohol on a weekly basis. He continued to drink heavily until 2019 when he commenced a residential rehabilitation program at a town in the South West. He was there for seven to eight months. On returning to his home town, he abstained from alcohol for a few weeks before relapsing. He resumed drinking approximately once a week, usually with family. These drinking sessions would often continue through the night. He has acknowledged that he has an alcohol addiction.[14]
[14] Sentencing ts 31.
In his late teenage years, the respondent attended TAFE where he completed courses in mechanics, civil construction and gardening. He obtained qualifications, including a certificate I in civil construction. In his twenties he worked with a mining company as a labourer, including spotting for diggers and trenching. Later he worked in environmental health. In 2016 he worked for a mining company for approximately 18 months to 2 years as a machine operator, dump truck operator and steam drum roller operator. During this period he abstained from alcohol and attended church regularly with his partner. Those two years were the longest period in which he has abstained from alcohol.[15]
[15] Sentencing ts 31.
In 2017 to 2018 the respondent worked for another mining company for about six months as a fixed plant operator, a sampler and washing down conveyor belts. At this time he was on a two week on/one week off roster at a mine site. He was doing 12‑hour days and reported having a breakdown due to the long hours and being away from his family. He took stress leave and was unable to return to the job and began drinking again. In early 2021, the respondent worked with a maintenance and landscaping contractor. This work involved ground maintenance and landscaping.[16]
[16] Sentencing ts 31.
The respondent has been in a long‑term relationship for about 10 years with the victim's sister. He has no prior relationships of significance. Whilst the respondent and his partner have no biological children, they have raised his partner's two young nieces, now aged around 8 and 9, since they were babies. After the respondent was charged with the present offence, the children were removed from their care. They now have supervised contact with the girls and the respondent acknowledges that his family has been broken up because of what he did. The respondent and his partner remain together and she is supportive of him.[17]
[17] Sentencing ts 30.
The respondent has played in a band with his cousin for some 30 years. His cousin is a Christian man who is well‑respected in the town where they both live and has provided support for the respondent. Another cousin is a pastor at the local church.[18]
[18] Sentencing ts 31.
At the sentencing hearing, counsel for the respondent said that he feels very sorry for what he did to the victim. He thinks about it often. He said that he wanted to ask for the victim's forgiveness, but was not sure how to do this, given that his bail conditions after he was charged prohibited contact with the victim.[19]
[19] Sentencing ts 20.
The respondent has a prior criminal record. It consists primarily of traffic offences, including a number which are alcohol related. Prior to the present offence, the most recent offence was one of driving under the influence of alcohol committed in March 2018. There are also offences of burglary, assault and stealing in the 1990s. Most of his offending has resulted in fines. He has only been imprisoned once previously, for burglary, breach of bail and attempted burglary in 1993.[20]
[20] Sentencing ts 20.
In sentencing submissions, counsel for the respondent accepted that a term of imprisonment was inevitable, but suggested that, if any sentence was served other than at a regional prison close to his home town, the respondent would suffer significant hardship. Counsel provided email exchanges with prison authorities, which confirmed that prisoners serving more than 12 months' imprisonment could be accommodated at the regional prison. However, movement to another prison may be necessary if a prisoner's management plan identified a program that was not available at the regional prison. Ordinarily, that would entail transfer to a metropolitan prison.[21]
[21] Sentencing ts 17 - 18.
Counsel for the respondent said that the respondent had previously had consensual sexual intercourse with the victim about three years earlier. That encounter was unknown to the respondent's partner until he committed this offence. Counsel said that whilst the previous sexual encounter 'in no way avails him in this sentencing exercise', it did provide some context as to why he initiated the contact and why he had some expectation that the victim would be receptive. It was, however, accepted that the victim was clearly not receptive.[22]
[22] Sentencing ts 20.
Counsel for the respondent submitted that his thought processes were impaired by his intoxication. However, it was accepted that he used physical force to overcome the victim's resistance and penetrate her, and that he did so in a persistent manner. After the offence, the respondent admitted to his partner what he had done and also told her of the earlier sexual encounter. That revelation caused problems between the respondent's partner and the victim, her sister, but they have since reconciled.[23]
[23] Sentencing ts 20.

Victim impact

The victim provided a victim impact statement. In it she said that at the time of the offence she could hardly breathe and thought she was going to die. Following the offence, she had nightmares and could not sleep for a long time. She was restless at night and afraid to be in her own home. She remembers having to go to hospital and being very traumatized by that experience. She continues to need to see a counsellor for anxiety and for sleeping problems.
The offence affected the victim's family, who were all very upset. Her two young sons felt guilty that they could not protect her. Her family were very angry and wanted to go after the respondent, but she told them to let the police handle it. She said that those who cared about her were very upset and angry and unable to believe that someone could have done such a bad thing to her. She says that the offence has caused her to lose trust in men. She copes by praying and relying on family to help her.

Sentencing remarks

Given that the ground of appeal is that the sentence was manifestly inadequate and no express error is alleged, the sentencing judge's remarks are not of critical importance. However, it is necessary to refer to them as some issues regarding the remarks were raised in submissions.
The learned sentencing judge commenced her remarks by acknowledging that the offence was a very serious one. She noted the maximum penalty of 14 years' imprisonment. She referred to the need to impose a sentence that was commensurate with the seriousness of the offence and that this included taking into account the circumstances of the offence, the vulnerability of the victim, the aggravating factors and the mitigating factors.[24]
[24] Sentencing ts 28 - 29.
Her Honour identified the following aggravating factors. First, the respondent breached the trust that the victim was entitled to have in him because she was his sister‑in‑law and because he knew her well. Secondly, the victim was vulnerable because she was alone in the house where she was staying and asleep when the respondent first arrived. Thirdly, the respondent 'did use some physical force' on the victim. Her Honour noted that at one stage this included the respondent placing his hands around the victim's neck and holding her around the neck. Fourthly, there was persistence in what the respondent did. Finally, her Honour referred to the respondent having drunk a lot of alcohol at the time of the offending.[25]
[25] Sentencing ts 29.
Her Honour gave an account of the respondent's personal circumstances, which she dealt with in detail. This included reference to his prior criminal record. She then said:[26]
I note that you have not offended in a like manner before, and I also think that that indicates that you're not likely to have offended in that way, but for your - the contribution - that a real contribution was made to that by your drinking. I've looked through your criminal history, and most of the offences, of course, were driving offences when you were younger.
[26] Sentencing ts 32.
Her Honour said that whilst the respondent was not a man of prior good character there was no similar offending on his record. She said that she did not think that personal deterrence was a large issue in the sentencing exercise.[27]
[27] Sentencing ts 32.
Her Honour noted that the respondent had pleaded guilty after negotiations between his lawyers and the prosecution. The plea followed the appellant being committed to the District Court. She concluded that the plea was made at a fairly early stage and was deserving of a discount of 22.5% pursuant to s 9AA of the Sentencing Act1995 (WA).[28]
[28] Sentencing ts 33 - 34.
Her Honour accepted that the respondent was very remorseful and that was evidenced by his plea of guilty and what he had said to his counsel and his cousin, who had provided a character reference. She accepted that the respondent had wished to apologise directly to the victim. She noted that he had accepted responsibility for difficulties within the extended family consequential upon his offence.[29]
[29] Sentencing ts 32.
Her Honour noted that the respondent had found it difficult in the past when he was away from his family and country. She said that there was no way of ensuring that he would serve any sentence at the regional prison. If he was transferred to another prison, it could be very far away from his own country and the people who speak his Indigenous language. It would also make it much more difficult for family and friends to visit. Her Honour said that she would take that into account in reaching an appropriate sentence.[30]
[30] Sentencing ts 33.
Her Honour concluded that the offending required a term of immediate imprisonment. She described the offence in the following terms:[31]
It was a forced sexual act in circumstances where you took the victim around her neck at one stage and held in place, and you put your penis into her mouth on a number of occasions. Your victim was vulnerable and the offending against her breached the trust she was entitled to have. But I do accept that you didn't plan to do this. That there had been some sexual encounters before you previously. And you did not, on this occasion, set out and expect that you would be rebuffed.
[31] Sentencing ts 33.
Her Honour then said that in her view a sentence of 2 years and 6 months' imprisonment was appropriate, taking into account the circumstances of the offending and all other circumstances personal to the respondent.[32]
[32] Sentencing ts 34.

Ground of appeal

The ground of appeal is as follows:[33]
The sentencing judge erred in law by imposing a sentence of 30 months' imprisonment for the offence of sexual penetration without consent that is so inadequate as to length as to manifest error having regard to:
(a)the maximum penalty of 14 years' imprisonment;
(b)the serious nature of the offence and the circumstances in which it was committed;
(c)the standards of sentencing customarily observed for offences of this type;
(d)the personal circumstances of the respondent; and
(e)the need for the sentence to adequately reflect general and personal deterrence and punishment of offending of this nature.
[33] AB 14.

Appellant's submissions

The appellant submits that the sentence of 2 years and 6 months' imprisonment failed to properly reflect the seriousness of the offence, the impact of the offending on the victim, the community expectation of how violent sexual offending will be treated by the courts and the standards of sentencing customarily imposed for offending of this type.[34]
[34] AB 15.
The appellant refers to the fact that this court has said on many occasions that there is no hierarchy of sexual penetration offences and the seriousness of every offence of unlawful sexual penetration must be determined by reference to its own individual circumstances. In this regard the appellant relies on what was said by Pritchard JA in Musgrave v The State of Western Australia[35] to the effect that the criminality prohibited by the offence of sexual penetration without consent is the exercise of dominion over another person by violating that person's bodily integrity.[36]
[35] Musgrave v The State of Western Australia [2021] WASCA 67 [281].
[36] AB 22.
The appellant submits that it is not unusual in cases involving a single count of non‑aggravated penile penetration of the vagina, where the offender is convicted after trial and the victim is over the age of 16 years, to be sentenced to 5 to 6 years' immediate imprisonment.[37] Whilst there are relatively few decisions that consider sentences imposed in cases of penile penetration of the victim's mouth, the appellant submits that an absence of an established range of sentences imposed in directly comparable cases does not preclude the court from determining that a sentence is manifestly inadequate. It merely has the consequence that the court has no directly comparable cases against which to assess the sentence.[38]
[37] AB 25.
[38] Munda v The State of Western Australia [2013] HCA 38; (2013) 249 CLR 600; Moore v The State of Western Australia [2019] WASCA 35 [48], [50] ‑ [51].
Despite the relative lack of cases that are directly comparable to the present case, the appellant submits that there are two cases involving penile penetration of the mouth that may assist.[39] Those cases are The State of Western Australia v Doualeh[40] and Plumley v The State of Western Australia.[41] I will refer to the facts of those cases in more detail later.
[39] AB 25 - 28.
[40] The State of Western Australia v Doualeh [2014] WASCA 3.
[41] Plumley v The State of Western Australia [2018] WASCA 33.
In Doualeh, the sentence imposed on an 18‑year‑old offender after trial was increased on appeal to 4 years and 6 months' imprisonment. The appellant acknowledges that the offence in Doualeh was aggravated by the causing of bodily harm to the victim and, therefore, subject to a higher maximum penalty, of 20 years' imprisonment. The offender was also convicted after trial. However, the offender in that case was entitled to significant mitigation on account of his youth.[42]
[42] AB 26.
In Plumley, the 48-year‑old offender pleaded guilty to one count of attempted sexual penetration without consent and one count of stealing. The attempt offence attracted a maximum penalty of 7 years' imprisonment. Following a successful appeal, the offender was resentenced to 3 years and 3 months’ imprisonment for the sexual offence and a further 6 months for the stealing offence, which was ordered to be served cumulatively.
The appellant submits that Doualeh and Plumley serve to demonstrate that the sentence imposed in the present case was so inadequate as to be unreasonable or plainly unjust.[43]
[43] AB 28.
In written submissions, the appellant suggested there were two matters of significance arising out of the sentencing judge's assessment of the seriousness of the offence. First, it was submitted that her Honour's remarks regarding the aggravating features of the offending and the seriousness of the offence did not 'fully encapsulate' the degree of violence or the level of disregard the respondent held for the victim's dignity, autonomy and bodily integrity. Whilst the appellant made it clear that it was not seeking to establish express error, it was submitted 'that an assessment of the seriousness of the offending is a significant factor in the determination of whether error may be inferred in the exercise of the sentencing discretion in the present case'.[44]
[44] AB 22 - 25.
In oral submissions, senior counsel for the appellant drew a distinction between the factual findings of the sentencing judge, which were not challenged, and her characterisation of the seriousness of the offence. It was submitted that this court is not bound to accept the characterisation of the sentencing judge.[45] In this regard, the appellant relied on Lyons v The State of Western Australia:[46]
In any event, a sentencing judge's characterisation of the seriousness of an offender's offending involves an evaluative judgment, not a finding of fact. Often, as in the present case, a challenge on appeal to that characterisation is better seen as a particular of a ground of appeal that alleges manifest excess. See Holden v The State of Western Australia [[2011] WASCA 238 [10] (McLure P; Buss JA & Mazza J agreeing)]; Lawson v The State of Western Australia [No 3] [[2018] WASCA 129 [111] (Buss P, Mazza & Beech JJA)]. Consequently, the sentencing judge's characterisation in the present case of the seriousness of the appellant's offence is not, in the circumstances, a matter of particular importance on appeal. What is important, in evaluating the sentence of 7 years' imprisonment, is the seriousness of the offence committed by the appellant, as determined by taking into account the maximum penalty, the facts and circumstances of the offence including the vulnerability of [the victim], the aggravating factors, the mitigating factors and any reasonably comparable cases. See s 6(2) of the Sentencing Act; Dodd v The State of Western Australia [[2013] WASCA 80 [45] (Buss JA; Mazza JA agreeing)].
[45] Appeal ts 3 - 4.
[46] Lyons v The State of Western Australia [2022] WASCA 81; 100 MVR 420 [67].
The second matter that the appellant referred to was the sentencing judge's findings in regard to the absence of premeditation. Although her Honour did not expressly make any finding that this was mitigating, the appellant suggested that there was some incongruity between her Honour's finding regarding the seriousness of the offence and the final two sentences of the passage outlined at [40] above. Again, the appellant does not assert an express error, but notes that the passage appears to suggest that the lack of premeditation influenced her Honour's assessment of the seriousness of the offence. The appellant submits that, had premeditation been established, it would undoubtedly have been a serious aggravating feature, but the absence of such a feature does not equate to a reduction in the seriousness of the offending. Any benefit that the respondent might have been afforded by the absence of premeditation, or his state of mind when he entered the victim's house, was entirely offset by his persistence in the face of the victim's refusal to accede to his demands for sex.[47]
[47] AB 23 - 24.

Respondent's submissions

The respondent submits, in essence, that whilst the sentence was lenient it was justified by a 'powerful constellation of mitigating factors'[48] - these including the respondent's history of deprivation, his determined efforts to live a useful life, his positive work history, his early plea of guilty and his genuine remorse.[49]
[48] Appeal ts 18; AB 33.
[49] AB 43 - 44.
The respondent submits that the appellant's criticisms of the sentencing judge's findings in respect of the seriousness of the offence and as to the lack of premeditation are an attempt to establish express error in an appeal where there is no ground asserting any such error. The respondent says that these matters should be disregarded in considering the appeal brought by the appellant. What the appellant must establish is that the result arrived at is unreasonable such that it can be inferred an error occurred. In any event, the respondent says that there is no basis for suggesting that the sentencing judge mischaracterised the seriousness of the offence and the absence of premeditation was a relevant consideration, not because it was a mitigating factor, but because it was relevant in assessing the seriousness of the offence.[50]
[50] AB 34 - 35.
The respondent submits that a 30‑month sentence of immediate imprisonment for a 48‑year‑old man with no prior convictions for sexual offending adequately reflected the seriousness of the offence. This was especially so having regard to the fact that the respondent had not been imprisoned since the early 1990s. The respondent submits that after a gap of 28 years, and as a mature person, a term of 30 months' imprisonment was significant. The leniency of the sentence reflected the fact that the offending in this case was out of character and personal deterrence was not, in the opinion of the sentencing judge, a significant issue.[51]
[51] AB 38 - 39.
The respondent submits that, whilst reference has been made to it not being unusual for a sentence of 5 to 6 years' imprisonment after trial to be imposed for a single count of non‑aggravated penile penetration of the vagina, it has also been observed that the average starting point for an unaggravated single offence of penile sexual penetration without consent was around 4 years and 8 months' imprisonment (under the transitional regime) before taking into account factors in mitigation.[52] If a starting point of 5 years' imprisonment was appropriate in this case, the end result, after taking into account the plea of guilty, would be 46½ months' imprisonment. If a further allowance was made for other mitigating factors this would suggest that the sentence imposed by the sentencing judge was within the permissible range. That conclusion would be even more assured if a starting point of 4 years was within the permissible range.[53]
[52] The State of Western Australia v Akizuki [2008] WASCA 267; 192 A Crim R 373.
[53] AB 39 - 41.
As to comparable cases, the respondent submits Doualeh could be distinguished because the appellant in that case had a high risk of sexual offending and was on bail for an aggravated robbery at the time of the offence. It is said that Plumley can also be distinguished because the appellant in that case had only one significant mitigating factor (the plea of guilty) and a psychologist's report indicated that the appellant had a risk of further offending.[54]
[54] AB 41 - 42.
In contrast, the respondent refers to Grubisic v The State of Western Australia[55] and Cavill v The State of Western Australia.[56] In Grubisic, an appeal against a 3‑year sentence imposed after trial was dismissed. In Cavill, an appeal against a sentence of 15 months' imprisonment was dismissed. The respondent submits that those cases do not suggest that the sentence in this case was manifestly inadequate.[57]
[55] Grubisic v The State of Western Australia [2011] WASCA 147; 41 WAR 254.
[56] Cavill v The State of Western Australia [2008] WASCA 108.
[57] AB 42 - 43.

Relevant principles

The State has a right to appeal against a sentence imposed on a person convicted of a charge pursuant to s 24(1)(a) of the Criminal Appeals Act 2004 (WA). The court may allow the appeal if, in its opinion, a different sentence should have been imposed.
The general principles governing appeals contending that error should be inferred on the basis that an individual sentence is manifestly excessive or inadequate, or that the total effective sentence infringes the totality principle, are well established. Those principles were summarised in Kabambi v The State of Western Australia (omitting those that relate only to the totality principle, which are not relevant here):[58]
(1)Sentencing is a discretionary exercise. An appellate court can intervene only if the appellant demonstrates either an express or implied material error. Express error involves acting on a wrong principle, for example by mistaking the law or facts or taking into account an irrelevant matter. Implied error arises where the end result is so unreasonable or unjust that the court must conclude that a substantial wrong has occurred. Thus, an appellate court cannot substitute its own opinion for that of the sentencing court merely because the appellate court would have exercised a sentencing discretion differently.
(2)In order to determine whether a sentence for an individual offence is manifestly excessive or inadequate, the offence should be viewed in light of the maximum sentence prescribed by law for the crime, the standards of sentencing customarily imposed with respect to it, the place that the criminal conduct occupies in the scale of seriousness of crimes of that type, and the offender's personal circumstances.
(3) …
(4)The range of sentences customarily imposed for a crime does not establish the range of a sound exercise of the sentencing discretion. Sentences customarily imposed in comparable cases provide a yardstick or reference point for ensuring broad consistency in sentencing, bearing in mind the scope for significant variations in relevant sentencing factors, and that there is no single correct sentence. What is important is the unifying principles which sentences imposed in comparable cases reveal and reflect.
(5)When this court dismisses an appeal against sentence and when it resentences on a successful appeal, its decision does not fix the upper or lower limit of the range.
(6) …
[58] Kabambi v The State of Western Australia [2019] WASCA 44 [21].
When considering whether a sentence is manifestly inadequate it is necessary to view the sentence in light of the maximum sentence prescribed by law for the offence, the standards of sentencing customarily observed with respect to the offence, the place which the criminal conduct occupies on the scale of seriousness of offences of that type, and the personal circumstances of the offender.
A ground of appeal that alleges that a sentence is manifestly inadequate (or manifestly excessive) asserts the existence of implied error. That is, that the outcome is so clearly unjust or unreasonable that an error can be inferred, even though no error is apparent in the reasons of the sentencing judge. If the only ground is an assertion of implied error, it is not open to the appellant to claim that there were also express errors in the reasoning. In these circumstances the appellant must be taken to accept that any factual findings by the sentencing judge are correct.
A sentence imposed on an offender must be commensurate with the seriousness of the offence. The seriousness of an offence must be determined by taking into account the statutory penalty for the offence, the circumstances of the commission of the offence (including the vulnerability of any victim), any aggravating factors and any mitigating factors.[59]
[59] Kabambi v The State of Western Australia [21].
Personal circumstances are of comparatively less weight in dealing with sexual offences.[60] That does not, of course, mean that personal circumstances are irrelevant. It does mean that personal circumstances are unlikely to justify a sentence which is very low having regard to the serious objective circumstances of an offence. The dominant sentencing considerations for sexual offences are punishment and general and specific deterrence.[61]
[60] See VIM v The State of Western Australia [2005] WASCA 233; (2005) 31 WAR 1 [320]; The State of Western Australia v Porter [2008] WASCA 154 (Steytler P) [8]; The State of Western Australia v Akizuki [123] (Miller JA).
[61] The State of Western Australia v Akizuki [123] (Miller JA).
The use of violence in the commission of a sexual offence is a significant aggravating feature. In R v Clark, Wheeler J (with whom Kennedy and Pidgeon JJ agreed) said:[62]
A very significant feature of the majority of sexual assault offences is the element of fear caused to the victim. Whether it is committed by a stranger or by a person known to the victim, the victim will almost inevitably have real fears about the degree of force to which the offender may resort in order to overcome resistance, or to further humiliate her, or to ensure her silence. Many victims fear for their lives and nearly all fear further violence of some kind. The experience is seen by the victim as a degrading one both at the time, and in recollection after the event, and this too is a significant feature of the offence. The extent to which the circumstances are likely to give rise to such fears and to such feelings will be significant factors in determining the seriousness of the particular offence.
[62] R v Clark [2000] WASCA 229 [12].
The maximum penalty for an offence of sexual penetration without consent (and where the offence is not committed in circumstances of aggravation) is 14 years' imprisonment.[63]
[63] Criminal Code (WA) s 325(1).
There 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.
In Warburton v The State of Western Australia,[64] Wheeler JA observed that sentences of 4 to 6 years have been considered 'appropriate in an "average" or "ordinary" case of sexual penetration without consent'.[65] Her Honour reviewed a number of other cases occurring between 1989 and 2008 in which sentences for a single act of sexual penetration without consent ranged between 6 to 9 years (4 to 6 years post‑transitional). This was a range that did not take into account mitigating factors.
[64] Warburton v The State of Western Australia [2009] WASCA 113; 196 A Crim R 361.
[65] Warburton v The State of Western Australia [11].
In The State of Western Australia v Richards,[66] Steytler P said that sentences for sexual penetration without consent where there was no plea of guilty or other exceptional circumstances could be expected to result in a term of around 5 or 6 years. See also WRN v The State of Western Australia.[67]
[66] The State of Western Australia v Richards [2008] WASCA 134; 37 WAR 229.
[67] WRN v The State of Western Australia [2017] WASCA 145.
In Akizuki, Steytler P, having reviewed many cases, concluded that an average starting point for a case of penile penetration of the vagina without consent, in the absence of circumstances of aggravation and without taking into account factors in mitigation, was in the order of 4 years and 8 months' imprisonment. His Honour considered that nothing would be achieved by specifying a different starting point for each category of sexual penetration as it could not be assumed that one form of sexual penetration was necessarily more, or less, serious than another.[68]
[68] The State of Western Australia v Akizuki [68].
These statements do not attempt to establish a range. All they do is note the types of sentences generally imposed, or the average sentence imposed, for offences of this nature. However, as noted earlier, since the variety of circumstances in which such offences can occur is almost infinite, these statements provide only the most general indication of what sentence is appropriate in a particular case. They do not mandate any particular starting point and a sentence that uses a starting point different from those referred to will not necessarily be manifestly excessive or manifestly inadequate.[69] While the interests of consistency require that regard be had to sentences customarily imposed in cases involving similar offending, the range of sentences that have been imposed in the past does not fix the boundaries within which future judges must, or even ought, to sentence.[70]
[69] Musgrave, Buss P [112]; The State of Western Australia v Hussian [2020] WASCA 186 [119] ‑ [120].
[70] See The State of Western Australia v Akizuki and Munda v The State of Western Australia [39] ‑ [40].

Moreover, it is important to recall what was said by Buss P and Mazza JA in Costa v The State of Western Australia:[71]
In The State of Western Australia v Akizuki, Steytler P observed that an average starting point for an unaggravated single offence of penile sexual penetration without consent is around 4 years and 8 months' imprisonment (under the transitional regime) before taking into account factors in mitigation. However, his Honour also noted that the range of potentially aggravating features is so huge that features of that kind can dramatically increase the sentence imposed or have little or no effect. The range of potential mitigating factors is at least equally extensive. They might result in a very large reduction in sentence or little or no reduction. (citations omitted)
[71] Costa v The State of Western Australia [2019] WASCA 3; 280 A Crim R 300 [50].

Merits of the appeal

There are few cases dealing with single counts of sexual penetration without consent where the penetration is of the victim's mouth by the offender's penis. The cases referred to by the parties represent only a small sample and provide only limited assistance.
In any event, to only select cases involving oral penetration is to raise that circumstance to the level of being critical whereas, in truth, it is one of the factual features of the offending, amongst many. For the reasons explained in Akizuki and Musgrave, offences of sexual penetration without consent should not be divided into categories defined by the nature of the penetration. It cannot be assumed that one form of sexual penetration is necessarily more, or less, serious than another. An assessment of the seriousness of an offence of sexual penetration is not governed by whether the penetration involves a penile, digital, oral or other form of penetration, but, rather, depends on all of the circumstances of the offence. Consequently, consideration of reasonably comparable cases in the present case should not proceed by reference to only cases involving oral penetration.
As regards the cases referred to by the appellant, we note the following. In Doualeh, the State appealed against a term of 3 years and 2 months' imprisonment imposed upon an 18‑year‑old offender after trial for one count of aggravated sexual penetration without consent. The offender had approached the intoxicated and vulnerable victim at a railway station at 3.00 am in the morning and propositioned her for sex. When the victim declined, the offender punched her multiple times to her head and forced his penis into her mouth. The offender stopped when a passerby intervened. The appeal was allowed and the offender was resentenced to a term of 4 years and 6 months' imprisonment.
There are several factors in Doualeh that differ from the present case. The offender in Doualeh was subject to a maximum penalty of 20 years' imprisonment and was not entitled to any mitigation on account of a plea of guilty. His violence resulted in bodily harm to the victim. There was a high risk of sexual offending in the future and the offending occurred whilst the appellant was on bail for another unrelated offence. On the other hand, the offender in Doualeh was entitled to significant mitigation on account of his youth.
In Plumley, the offender pleaded guilty to one count of attempted sexual penetration without consent and one count of stealing. The offender watched the victim, a Chinese tourist, as she went swimming in the river. As the victim was getting changed in a toilet block afterwards, the offender walked in. The victim ran to a toilet cubicle, but the offender forced the door open and went inside. He pushed the victim to her knees and put his hands on top of her head and on her mouth in an attempt to stop her screaming. He pulled down his shorts and underwear, removed his erect penis and demanded oral sex from the victim. The offender pushed his penis towards her mouth, but, due to the victim's resistance, he was unable to insert it into her mouth, but caused it to rub against her lips and cheeks. The victim screamed again and the offender left, stealing her handbag from the bench outside.
In Plumley, the 48‑year‑old offender had a criminal record, albeit not for offences of a violent or sexual nature. He was given a 25% discount for his guilty pleas and was sentenced at first instance to 4 years and 3 months' imprisonment for the sexual offence and 6 months' imprisonment concurrent for the stealing. His appeal against the sentence for the sexual offence was allowed on the ground that it was manifestly excessive. The maximum penalty for the attempted offence in that case was 7 years' imprisonment. The court noted that it appeared that the only reason the offender did not complete the offence was due to the victim's resistance, but that he could not be sentenced as if he had committed a completed offence. It was held that the length of the sentence did not properly reflect his plea of guilty or the maximum penalty for the particular offence. The offender was resentenced to 3 years and 3 months’ imprisonment for the sexual offence but ordered to serve the 6 months on the stealing offence cumulatively, resulting in a total effective sentence of 3 years and 9 months' imprisonment.
As to the cases referred to by the respondent, in Grubisic the appellant was convicted after trial of one count of sexual penetration without consent. He forced himself upon the victim in the privacy of her own room. He held her down, kissed her on the neck, rubbed his hand between her legs, ran his hand up her shorts and tried to pull down her underwear. Finally, he forcefully inserted his finger into her vagina, causing abrasions. The appellant was 34 at the time of the offence and affected by alcohol. An appeal against the sentence of 3 years' imprisonment on the ground that it was manifestly excessive was dismissed.
In Cavill[72] the 60‑year‑old offender was convicted, after a trial, on one count of sexual penetration without consent. The offender had offered the complainant, a 23‑year‑old woman, a room at his house after she had been evicted from the place in which she was staying. He entered her room and placed his hands under her tracksuit pants before digitally penetrating her. The sentencing judge described the offence as opportunistic and not planned. He regarded a sentence of 16 months' imprisonment as appropriate but reduced that by one month to take account of time spent in prison on remand. The sentence of 15 months was the equivalent of 20 months in post‑transitional terms. The appellant was assessed as being a person of prior good character and had a medium to low risk of reoffending. An appeal against this sentence was dismissed.
[72] Cavill v The State of Western Australia [2008] WASCA 108.
The decisions in Grubisic and Cavill provide no assistance. The dismissal of an appeal based on an allegation of manifest excess is not an indication that the sentence was otherwise appropriate. The decisions in Doualeh and Plumley are more helpful, though in each case there are differences which need to be taken into account. Nevertheless, when those differences are taken into account the sentences in those cases, particularly Plumley, do not sit comfortably with the sentence imposed here. Of course, comparison with one or two cases is of limited assistance in evaluating whether a sentence reveals implied error. The primary focus must be on the circumstances of the particular offence and the offender, to which we will shortly come.
We do not accept that the sentencing judge made any specific errors in her findings. Indeed, as has been noted earlier, there is no ground of appeal challenging the findings. Her Honour concluded, with respect properly, that the offending in this case was serious and was accompanied by a number of significant aggravating features. The fact that she did not detail every aspect of the violence in her remarks cannot lead to a conclusion that she failed to take the full extent of the violence into account.
As to the reference to the lack of premeditation, there is nothing to suggest that her Honour treated this as a mitigating factor, rather than the absence of an aggravating factor. Its relevance was limited to being a factor to take into account in assessing the seriousness of this offence relative to other offences.
Putting those matters aside, what the appellant must establish is that the sentence imposed was manifestly inadequate such as to be unreasonable or plainly unjust. The critical factor here is the circumstances of the offence. The victim and the appellant were members of the same family and the offending involved a significant breach of trust. The fact that the respondent had had a prior consensual encounter with the victim three years earlier provided no justification for his offending. The victim made it plain from the outset that his demands for sex were unwelcome and there was no suggestion that he had any reasonable belief to the contrary. The offending involved significant persistence in the face of the victim's resistance. The respondent used violence to restrain the victim and to force her to comply with his demands. The victim was vulnerable as she had been drinking the night before, was alone in the house and had just been roused from sleep. The offence caused the victim to fear for her life and has had a significant impact upon her.
The respondent had a number of favorable personal factors. He had a deprived childhood in which he was exposed to alcohol abuse and violence and had made significant, and substantially successful, efforts to overcome that. That itself is capable of providing significant mitigation.[73] He had a good work record. He was remorseful for the offending and had pleaded guilty at a relatively early stage. He had a criminal record but had not previously committed any sexual offences. On the other hand, he had a long-standing problem with alcohol and intoxication was considered to be a contributing factor to the offence. In any event, importantly, circumstances personal to the offender have less weight in respect of offences of this nature.
[73] State of Western Australia v Krakouer [2020] WASCA 133 82].
When this well‑established principle is applied, the respondent's argument hypothesising a starting point of 5 years' imprisonment, as set out in [56] above, cannot be accepted. In our view, if a starting point of 5 years were adopted, after reducing the sentence by 22.5% on account of the plea of guilty, giving full weight to the respondent's other mitigating factors could not justifiably lead to a sentence of or in the order of 2 years and 6 months' imprisonment.
In our view, taking into account:
1.the maximum penalty of 14 years' imprisonment;
2.the circumstances of the appellant's offence, including its serious features as summarised in [84] above;
3.the vulnerability of the victim;
4.the impact of the appellant's offence upon the victim;
5.the appellant's personal circumstances and all mitigating factors including his plea of guilty and the other mitigating factors summarised in [85] above; and
6.the pattern of sentences imposed in reasonably comparable cases;
the sentence of 2 years and 6 months' imprisonment was unreasonable or plainly unjust. It did not adequately reflect the very serious circumstances of the offence. The ground of appeal has been made out.
The respondent does not suggest that there is any basis for the exercise of the residual discretion. Of course, it is for the State to negative any reason why the residual discretion of this court not to intervene should be exercised.[74] In the present case, there are no factors that would justify the exercise of that discretion.
[74] CMB v Attorney General (NSW) [2015] HCA 9; (2015) 256 CLR 346 [33] ‑ [34].
We would allow the appeal, set aside the sentence of 2 years and 6 months' imprisonment and resentence the appellant.

Resentencing

In the event of resentencing, the respondent provided, under cover of an affidavit, details of his present performance in prison. It would seem that, notwithstanding concerns expressed at the sentencing hearing, he has served his time to date at the regional prison close to his home town. He is considered to be a respectful prisoner who always abides by the rules and interacts well with other prisoners. He is employed as a garden worker and staff report that he is respectful, takes directions and completes allocated work to a satisfactory standard without complaint.
The respondent is booked to engage in a Pathways program to address his alcohol addiction and is waitlisted for education and vocational training courses. He has not undertaken a sex offender program because he has been assessed as not requiring such a program. This information supports a conclusion that the respondent has reasonable prospects of rehabilitation.
The relevant circumstances of the offence and the personal circumstances of the respondent have been referred to in detail earlier. There is no dispute with the discount of 22.5% for pleading guilty and we would allow that discount again, pursuant to s 9AA of the Sentencing Act.
In our view, the appropriate sentence is one of 3 years and 4 months with an order that the appellant be eligible for parole.

Orders

To give effect to these reasons there should be orders as follows:
1.Appeal allowed.
2.Sentence of 2 years and 6 months' immediate imprisonment set aside.
3.In lieu thereof, impose a sentence of 3 years and 4 months' immediate imprisonment backdated to commence on 10 February 2022, with an order that the respondent be eligible for parole.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
JS
Associate to the Honourable Justice Hall
5 JANUARY 2023