The State of Western Australia v Syred - [2020] WASCA 185

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT :   THE COURT OF APPEAL (WA)
CITATION:   THE STATE OF WESTERN AUSTRALIA -v- SYRED [2020] WASCA 185
CORAM:   BUSS P
MITCHELL JA
VAUGHAN JA

HEARD:   15 OCTOBER 2020
SUPPLEMENTARY
SUBMISSIONS       :   27 & 28 OCTOBER 2020
DELIVERED          :   9 NOVEMBER 2020
FILE NO/S:   CACR 119 of 2020
BETWEEN:   THE STATE OF WESTERN AUSTRALIA
Appellant
AND
DARIUS ROBERT SYRED
Respondent

ON APPEAL FROM:
Jurisdiction              :   DISTRICT COURT OF WESTERN AUSTRALIA
Coram:   LEVY DCJ
File Number            :   IND 2137 of 2019

Catchwords:

Criminal law - Sentencing - State appeal against sentence - Where respondent convicted of three counts of aggravated indecent assault and one count of aggravated sexual penetration without consent - Where circumstance of aggravation was that respondent photographed and filmed the victim naked and the offending conduct - Where seriousness of offending exacerbated by circumstance that victim was asleep and demeaning nature of one of the counts of aggravated indecent assault - Total effective sentence imposed of 18 months' imprisonment, conditionally suspended - Whether sentencing judge erred in conditionally suspending the terms of imprisonment - Whether individual sentence for count of aggravated sexual penetration without consent so inadequate in length as to manifest error - Resentencing of respondent

Legislation:

Criminal Code (WA), s 324, s 325, s 326
Sentencing Act 1995 (WA), s 9AA, s 39

Result:

Appeal allowed
Respondent resentenced

Category: D

Representation:

Counsel:

Appellant	:	A L Forrester SC & G N Beggs
Respondent	:	S B Watters

Solicitors:

Appellant	:	Director of Public Prosecutions (WA)
Respondent	:	Kate King Legal Pty Ltd

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

Alalyani v The State of Western Australia [2018] WASCA 44
Cavill v The State of Western Australia [2008] WASCA 108
Cluett v The State of Western Australia [2019] WASCA 111
Cross v The State of Western Australia [2018] WASCA 86; (2018) 272 A Crim R 549
Director of Public Prosecutions (Vic) v Dalgliesh (a Pseudonym) [2017] HCA 41; (2017) 262 CLR 428
DKN v The State of Western Australia [2018] WASCA 87
FST v The State of Western Australia [2011] WASCA 220
Grubisic v The State of Western Australia [2011] WASCA 147; (2011) 41 WAR 424
Kabambi v The State of Western Australia [2019] WASCA 44
KNY v The State of Western Australia (KNY) [2019] WASCA 89
Lakay v The State of Western Australia [2019] WASCA 46
LJW v The State of Western Australia [No 2] (LJW) [2007] WASCA 275
McIntyre v The State of Western Australia [2016] WASCA 150
McNally v The State of Western Australia [2019] WASCA 93
Mearns v The State of Western Australia [2009] WASCA 153
Miles v The State of Western Australia [2010] WASCA 93
Munda v The State of Western Australia [2013] HCA 38; (2013) 249 CLR 600
Naysmith v The State of Western Australia [2013] WASCA 32
NDY v The State of Western Australia [2020] WASCA 172
Nguyen v The State of Western Australia [2019] WASCA 149
PAS v The State of Western Australia [2009] WASCA 210
R v Clark [2000] WASCA 229
R v Cleak [2004] WASCA 72
R v Smith [2004] WASCA 44
Scaddon v The State of Western Australia [2015] WASCA 173
Singh v The State of Western Australia [2017] WASCA 47
Tapper v The State of Western Australia [2016] WASCA 140
Taylor v The State of Western Australia [2019] WASCA 217
The State of Western Australia v Akizuki [2008] WASCA 267; (2008) 192 A Crim R 373
The State of Western Australia v Baldini [2015] WASCA 39
The State of Western Australia v BKJ [2018] WASCA 136
The State of Western Australia v Doyle [2017] WASCA 207
The State of Western Australia v Egeland [2018] WASCA 228; (2018) 276 A Crim R 77
The State of Western Australia v Jacoby [2020] WASCA 150
The State of Western Australia v Krakouer [2020] WASCA 133
The State of Western Australia v Marchese [2006] WASCA 153; (2006) 163 A Crim R 363
The State of Western Australia v Staniforth-Smith [2014] WASCA 170
The State of Western Australia v TLP [2019] WASCA 66
The State of Western Australia v Vartolo [2015] WASCA 53
The State of Western Australia v Wilkins [2020] WASCA 149
Thorn v The State of Western Australia [2008] WASCA 36
Wong v The Queen [2011] HCA 64; (2001) 207 CLR 584

BUSS P & MITCHELL JA:

Summary

On 6 March 2020, the respondent was convicted, on his pleas of guilty, of four counts, all committed on 21 April 2018 and relating to the same 18-year-old female victim. There were three counts of aggravated indecent assault and one count of aggravated sexual penetration without consent. In each case the circumstance of aggravation was that, during the commission of the offence, the respondent did an act which was likely seriously and substantially to degrade or humiliate the victim, by either photographing or filming her.
On 31 July 2020, the respondent received the following sentences of imprisonment, conditionally suspended for 18 months, in respect of this offending:

Count

Offence

Maximum penalty

Sentence

1

Aggravated indecent assault by touching the victim's pubic area

(s 324 of the Criminal Code)

7 years

12 months

2

Aggravated indecent assault by touching the victim's vagina

(s 324 of the Criminal Code)

7 years

12 months

3

Aggravated sexual penetration without consent, by penetrating the victim's vagina with his fingers

(s 326 of the Criminal Code)

20 years

18 months

4

Aggravated indecent assault by ejaculating on the victim

(s 324 of the Criminal Code)

7 years

18 months

Count	Offence	Maximum penalty	Sentence
1	Aggravated indecent assault by touching the victim's pubic area (s 324 of the Criminal Code)	7 years	12 months
2	Aggravated indecent assault by touching the victim's vagina (s 324 of the Criminal Code)	7 years	12 months
3	Aggravated sexual penetration without consent, by penetrating the victim's vagina with his fingers (s 326 of the Criminal Code)	20 years	18 months
4	Aggravated indecent assault by ejaculating on the victim (s 324 of the Criminal Code)	7 years	18 months

The State now appeals against these sentences. Ground 1 effectively contends that it was not open to the sentencing judge to conditionally suspend the terms of imprisonment imposed. Ground 2 contends that the individual sentences for counts 3 and 4 were manifestly inadequate as to length. Ground 3 contends that the total effective sentence infringes the first limb of the totality principle. Leave to appeal on these grounds was granted on 27 August 2020.
In our view, ground 1 is established, and it is unnecessary to determine grounds 2 and 3. It is not appropriate for this court to exercise its residual discretion to dismiss the State's appeal despite a ground having been established. We would resentence the respondent to a total effective sentence of 3 years' immediate imprisonment.

Circumstances of offending

The sentencing judge made the following findings as to the circumstances of the respondent's offending. [1]
[1] Primary ts 15 - 17, 37 - 38, 65.
The offending occurred at the respondent's home in the early hours of the morning on Saturday, 21 April 2018. After both consuming alcohol on the evening of Friday 20 April 2018, the respondent and victim, who were in a casual intimate relationship, moved to the respondent's bedroom where they engaged in consensual sexual intercourse. This was the first occasion on which they had done so together, and the first occasion the victim had done so at all. They stopped before the respondent ejaculated, and the victim rolled over and went to sleep.
Believing that the victim had passed out due to fatigue and the amount of alcohol she had consumed, the respondent then used his mobile telephone to record images and videos of the victim naked and asleep. The respondent placed his head on the victim's lower abdomen, making contact with her pubic region. He poked his tongue out towards the victim's vagina and took a selfie photo (count 1).
The respondent then moved the victim's legs apart and placed the index finger and thumb of his right hand on either side of the victim's vagina, making contact with the outside of the labia majora. He spread the victim's vagina open and took a series of photographs of the victim's vagina (count 2).
The respondent then placed the index finger of his right hand on the victim's clitoral hood, past the labia majora, penetrating her vagina. He filmed this on his mobile phone (count 3).
The respondent then lay next to the victim, masturbating himself and filming the activity on his mobile phone. He pulled a blanket down to expose the victim's breasts and ejaculated, spilling his semen onto the victim's left nipple and breast. He then took several more photographs of the victim, depicting his semen on her breast (count 4). The respondent then cleaned his semen from the victim's breast and fell asleep.
The victim and the respondent awoke the next morning and had consensual sex. The respondent never told the victim about his sexual offending or the photographs or recordings he had made the night before. The victim departed later that day, and the pair had no further physical contact. The victim and respondent ceased all contact a few months later.
The respondent later bragged about the photos and videos he had taken of the victim to one of his friends. He showed his friend some of the images. The friend told his girlfriend about the photos and videos and what the respondent had done. The friend's girlfriend advised the victim, who reported the matter to police. When interviewed on 10 January 2019, after initially lying about the location of his mobile phone, the respondent provided his phone to police and generally admitted the offending. Police located 29 photographs and 9 videos of the offending on the respondent's phone.
The victim provided a victim impact statement which described the significant and on-going impact of the offending on her psychological wellbeing.

Personal circumstances

The respondent was aged 26 at the time of the offending and was 28 when sentenced. He had a generally supportive family, and a good work history in mining and hospitality roles since leaving school at year 11. He had issues with cannabis and alcohol use. He had a relatively minor criminal record, but had not previously been convicted of sexual offending or received a sentence of imprisonment.[2]
[2] Primary ts 66 - 67.
The respondent had, since the offending, engaged in private counselling sessions with a psychologist focussing on sexually inappropriate behaviour and the consequences for the victim. The private psychologist reported a positive change in the respondent's attitude. The author of a pre-sentence report suggested that the respondent had minimised and to some degree justified his offending, but regarded the respondent as suitable for community supervision.[3]
[3] Primary ts 68.

Sentencing judge's approach

The sentencing judge was satisfied that the respondent had pleaded guilty at the first reasonable opportunity, and allowed a discount of 22% under s 9AA of the Sentencing Act 1995 (WA). The judge also identified the respondent's remorse and age at the time of the offending (which he described as 'at perhaps the very outer limits of any discount for youth') as mitigating factors.[4]
[4] Primary ts 67, 68.
The sentencing judge saw the seriousness of the respondent's offending as aggravated by the humiliating and degrading manner in which he treated the victim. His Honour regarded counts 3 and 4 as the most serious offences. He said that 'the sexual penetration itself in isolation is at the lower end of that sort of offence', and that the indecent assault charged in count 4 fell 'at least in the middle if not higher end of the range of offences of aggravated unlawful and indecent assault'.[5]
[5] Primary ts 68.
After referring to the significance of general and specific deterrence as sentencing considerations, the sentencing judge said that he had no hesitation in concluding that the offences should attract a term of imprisonment. His Honour then observed:[6]
Ultimately, looking at all factors, I'm not positively satisfied that only a term of immediate imprisonment would be appropriate. Consequently, I have decided that there is a need for you to address the underlying factors that contributed to your offending. And in my view the most significant of that is your attitude towards women.
Consequently, I've decided that the appropriate dispositions in relation to each offence is a conditionally suspended term of imprisonment.
[6] Primary ts 69.
The sentencing judge then imposed the sentences of imprisonment referred to at [2] above, conditionally suspended for 18 months with a programme requirement and supervision requirement.[7]
[7] Primary ts 69 - 70.

Ground 1: Whether conditionally suspended sentence was open

The principles relevant to allegations of implied error are well established, and were summarised in Kabambi v The State of Western Australia.[8] It is unnecessary to repeat those principles here.
[8] Kabambi v The State of Western Australia [2019] WASCA 44 [21].
It is also well established that, under s 39 and related provisions of the Sentencing Act, a sentencing judge must be positively satisfied that it is not appropriate to suspend or conditionally suspend a term of imprisonment before the term can be ordered to be served immediately. The discretion to suspend or conditionally suspend a term of imprisonment is not confined by considerations relating to rehabilitation. In a particular case, the objective features of an offence may outweigh the personal considerations of rehabilitation.[9]
[9] Tapper v The State of Western Australia [2016] WASCA 140 [68] - [70] and the cases there cited.
In an offender's appeal against a sentence of immediate imprisonment, the question for this court is whether it was open to the sentencing judge to conclude that it was inappropriate to suspend or conditionally suspend the sentences of imprisonment he or she intended to impose.[10] Conversely, in a State appeal against the imposition of a conditionally suspended term of imprisonment the question may be expressed as follows. Was it open for the sentencing judge to fail to conclude that it was inappropriate to conditionally suspend the sentences of imprisonment he or she intended to impose?
[10] See Tapper [75]; McIntyre v The State of Western Australia [2016] WASCA 150 [19]; Nguyen v The State of Western Australia [2019] WASCA 149 [25] - [26].
That is, in the present case, was the sentencing judge bound to conclude that it was inappropriate to conditionally suspend the sentences of imprisonment he intended to impose? Ultimately, the issue is whether the decision to conditionally suspend the sentences of imprisonment was unreasonable or plainly unjust in the circumstances of the particular case.

The maximum penalty for count 3 is 20 years' imprisonment, indicating the seriousness with which Parliament views this type of offence.
The respondent's offending on count 3 was a relatively serious example of this kind of offending. It is true that the degree of intrusiveness of the sexual penetration in this case was not as egregious as that with which this court commonly deals. However, it was significant that the complainant was asleep at the time of the offending, which both placed her in a vulnerable position and made it abundantly clear to the respondent that she was not consenting to any sexual activity at that time. Further, the recording of the offending, in a manner 'likely seriously and substantially to degrade or humiliate the victim', was the statutory circumstance of aggravation. That conduct, which did actually degrade and humiliate the victim, significantly elevated the degree of criminality involved in the offending. While the respondent did not generally circulate the images he created, it was an aggravating factor that he showed some of them to a friend who was also within the victim's social circle.
The significant mitigating factors in the present case were the respondent's plea of guilty, his remorse and the steps he had taken towards rehabilitation. We do not regard the respondent's age of 26 at the time of offending to be significantly mitigating. While he had not previously offended in a way that might elevate the significance of community protection or personal deterrence, his criminal record meant that the respondent could not be regarded as a person of prior good character.
It is well established that, ordinarily, a term of immediate imprisonment is the only appropriate penalty for the offences of non-aggravated and aggravated sexual penetration without consent. A lesser type of sentence will be imposed only in exceptional circumstances.[11] That remains so in the case of a sleeping or unconscious victim, where absence of force or intimidation is counterbalanced to a significant extent by the serious abuse of the victim's vulnerability, there being no opportunity to attempt to prevent the commission of the offence.[12] Reflecting that customary sentencing approach, the parties were unable to identify any case in which this court has imposed or upheld a sentence of suspended or conditionally suspended imprisonment for an offence against s 325 or s 326 of the Criminal Code.[13]
[11] FST v The State of Western Australia [2011] WASCA 220 [38].
[12] FST [7]; Lakay v The State of Western Australia [2019] WASCA 46 [41] - [42].
[13] Appeal ts 3 - 4. Research by the court identified only one such case: R v Smith [2004] WASCA 44.
Of course, even where a term of immediate imprisonment is ordinarily or generally the only appropriate penalty for an offence, the sentencing judge must still consider whether, having regard to all relevant sentencing factors in the case under consideration, it is appropriate to impose a lesser sentence. The question for the sentencing judge is whether, having regard to all relevant sentencing factors, the case does not require the imposition of the generally appropriate type of sentence for the offence.[14] However, notwithstanding the mitigating factors referred to above, there is nothing about the present case which provides a proper basis for imposing a sentence other than immediate imprisonment.
[14] Naysmith v The State of Western Australia [2013] WASCA 32 [25]; Cluett v The State of Western Australia [2019] WASCA 111 [59].
In our view, the seriousness of the aggravated sexual penetration offence in this case was such that the sentencing judge was bound to conclude that it was inappropriate to conditionally suspend the sentence of imprisonment he intended to impose for count 3. That is, the decision to conditionally suspend the respondent's sentence of imprisonment for count 3 was unreasonable or plainly unjust in the circumstances of this case.
Ground 1 is therefore established in relation to the aggravated sexual penetration offence, for which a sentence of immediate imprisonment was the only appropriate sentence. It follows that the conditionally suspended imprisonment orders for the aggravated indecent assault offences must also be set aside,[15] and the respondent resentenced for those offences. As this court must now sentence the respondent afresh for all the offences, it is unnecessary to determine the State's other grounds of appeal.
[15] Sentencing Act, s 81(3)(b).

Resentencing

We agree with Vaughan JA's reasons for concluding that this court should not exercise its residual discretion to dismiss the State's appeal despite ground 1 having been established.
The court has the necessary materials to resentence the respondent. In doing so we have had regard to the additional evidence in the appeal of the continuing steps towards rehabilitation taken by the respondent since his sentencing. Like the sentencing judge, we would allow a 22% reduction under s 9AA of the Sentencing Act.
In our view, a sentence of 2 years 6 months' immediate imprisonment is commensurate with the seriousness of the aggravated sexual penetration offence. Subject to the application of the totality principle, we would have imposed a sentence of 18 months' immediate imprisonment in respect of count 4, and 12 months' immediate imprisonment for each of counts 1 and 2 (having regard to the fact that neither party complains about the length of the terms imposed by the sentencing judge for counts 1 and 2).
In our view, having regard to all of the circumstances of the case (including those personal to the respondent) and all relevant sentencing principles, a sentence of 3 years' immediate imprisonment reflects the seriousness of the respondent's offending considered as a whole. While the offending occurred during the one incident, in our view the aggravated indecent assault offences do elevate the overall seriousness of the offending in a manner which requires some degree of accumulation of the sentences. We would give effect to that conclusion by reducing the sentence we would otherwise impose for count 4 to 6 months' immediate imprisonment for totality, and ordering the sentence for count 4 to be served cumulatively upon the sentence for count 3. The sentences for counts 1 and 2 should be served concurrently with each other and the new sentence for count 3. The respondent should be eligible for parole. As the respondent has not served any time in custody, there is no need to backdate the sentence.

Orders

For the above reasons, we would make the following orders:
(1) The respondent's applications in an appeal filed on 14 October 2020 (seeking to adduce additional evidence in the appeal) and 28 October 2020 (seeking leave to reopen his case and adduce additional evidence in the appeal) are allowed.
(2)The appeal is allowed.
(3) The sentencing decision of the primary judge is set aside.
(4) The respondent is resentenced on the counts in indictment IND 2137 of 2019 as follows:
(a) on count 1, to 12 months' immediate imprisonment;
(b) on count 2, to 12 months' immediate imprisonment;
(c) on count 3, to 2 years 6 months' immediate imprisonment;
(d) on count 4, to 6 months' immediate imprisonment.
(5) The new sentence for count 4 is to be served cumulatively upon the new sentence for count 3 and the new sentences for counts 1 and 2 are to be served concurrently with each other and concurrently with the new sentence for count 3.
(6)The respondent is eligible for parole.

VAUGHAN JA:

Overview

This is a State appeal against sentence.
The respondent was convicted, following his pleas of guilty, of four offences comprising:
1.Three counts of aggravated indecent assault contrary to s 324 of the Criminal Code. The indecent assaults consisted of:
(a)touching the victim's pubic area (count 1);
(b)touching the victim's vagina (count 2);
(c)ejaculating on the victim (count 4).
2.One count of aggravated sexual penetration without consent contrary to s 326 of the Criminal Code in that the respondent penetrated the victim's vagina with his fingers (count 3).
The maximum penalty applicable to the counts of aggravated indecent assault is 7 years' imprisonment.[16] The maximum penalty applicable to the count of aggravated sexual penetration without consent is 20 years' imprisonment.[17]
[16] Criminal Code s 324(1).
[17] Criminal Code s 326(1).
All four offences were committed against a 19 year old victim, T, while she was asleep naked having earlier engaged in consensual sex with the respondent. The relevant circumstance of aggravation was that the respondent committed each offence doing an act which was likely seriously and substantially to degrade or humiliate the victim: the respondent committed the offences while photographing or filming the victim and his sexual activity. The respondent used his mobile phone to record images and videos of T while he committed the offences.
On 31 July 2020 the respondent was sentenced to terms of 12 months' imprisonment in respect of each of counts 1 and 2 and terms of 18 months' imprisonment in respect of each of counts 3 and 4. All terms were to be served concurrently. All terms were conditionally suspended for a period of 18 months, commencing on 31 July 2020, subject to the standard obligations and primary requirements in the form of a programme requirement and a supervision requirement. Thus the total effective sentence was one of 18 months' imprisonment conditionally suspended for a period of 18 months.
On appeal the State contended that the only appropriate sentencing disposition was a term of immediate imprisonment. Accordingly, the State contended that the imposition of a term of conditionally suspended imprisonment for each offence was so inadequate as to manifest error. The State further contended that the terms of 18 months' imprisonment for counts 3 and 4 were manifestly inadequate. Finally, as to the total effective sentence, the State contended that viewed in its entirety the total effective sentence of 18 months' imprisonment infringed the first limb of the totality principle.
For the reasons that follow the appeal should be allowed. I would resentence the respondent to terms of immediate imprisonment. The substituted sentences should be immediate terms of imprisonment of 12 months (as to each of counts 1 and 2), 2 years and 6 months (as to count 3) and 1 year and 10 months (as to count 4). All four sentences should be served concurrently.

The circumstances of the offending

Subject to one matter, there was no dispute[18] about the material facts as they were read out by the prosecutor.[19] There was a minor dispute in relation to count 3: counsel for the respondent contended that the degree of penetration was 'at a bare minimum' and there was an issue about whether the respondent's actions should be categorised as rubbing or touching the victim's clitoral hood.[20] However, both the prosecutor and counsel for the respondent accepted that this would not materially affect sentencing.[21]
[18] ts 20.
[19] ts 15 - 19.
[20] ts 20 - 21.
[21] ts 21.
At the time of the offending, the respondent and T were in a casual intimate relationship. They had met a month earlier through friends.
T attended the respondent's home address in a Perth suburb on Friday, 20 April 2018. They drank. T was consuming alcohol at a greater and faster rate than the respondent. Around midnight, the respondent and T moved into the respondent's bedroom. They engaged in consensual sex. This was eventually stopped by T, before the respondent ejaculated, due to the fact that the respondent was not wearing a condom. T then rolled over and went to sleep. The respondent believed that T had passed out due to fatigue and the alcohol consumed. T was still naked at this time.
While T was asleep, the respondent began masturbating while lying next to T. The respondent knew that T was not awake or aware of what he, the respondent, was doing. While masturbating, the respondent recorded images and videos of T lying naked and asleep, using his mobile phone. T did this by quietly moving around the bed so as not to wake T.
In total the respondent took 29 photographs and nine videos over a period of a few minutes. The recorded images and videos were of the victim's naked body and the respondent's sexual activity. In relation to the four offences:
1.Count 1 - The respondent placed his head on T's lower abdomen, making contact with her pubic region, near her vagina. The respondent poked his tongue out towards the victim's vagina and took a 'selfie' photo with his mobile phone.
2.Count 2 - The respondent moved T's legs apart. He then placed the thumb and index finger of his right hand on either side of T's vagina making contact with the outside of the labia majora. The respondent spread T's vagina open. The respondent then took a series of photographs of T's vagina with his mobile phone.
3.Count 3 - The respondent placed his index finger of his right hand on the victim's clitoral hood, past the labia majora, penetrating T's vagina. He either touched or rubbed the clitoral hood. The respondent recorded these actions on his mobile phone.
4.Count 4 - The respondent lay next to T. He continued to masturbate himself and recorded the activity on his mobile phone. The respondent pulled a blanket down off T to expose her breasts and ejaculated, spilling his semen on to T's left nipple and breast. The respondent then took several more photographs of T, depicting his semen on T's breast. The respondent cleaned his semen off T's breast by wiping it with a towel. The respondent later told police that he did this as a 'nicety'.
After the offending, the respondent fell asleep. The next morning, when they awoke, the respondent and T had consensual sex. The respondent never told T about his sexual activities while she was asleep or the recording of the images and videos. T departed later that day. The respondent and T never had any further physical contact. The respondent and T ceased all contact a few months later.
The respondent later bragged to a friend of his, with whom the respondent shared the house at which the offending occurred, about the images and videos. The respondent showed the friend some of the images in which intimate parts of T's body were exposed. The friend recalled seeing about 5 - 7 images, but was not shown any videos. In December 2018 the friend told his girlfriend about what the respondent had done and about the images and videos. The girlfriend, who was a friend of T, told T. T reported the matter to the police.
The respondent was contacted by the police and attended a police interview on 10 January 2019.
When asked for his mobile phone, the respondent told the police it was broken and at his house. After being told that the police had a warrant to search his house, the respondent admitted that the mobile phone was in his car. The mobile phone was subsequently seized by the police. The images and videos were located. In the course of his interview the respondent explained that the materials were located in a hidden folder.[22]
[22] WAB 179 - 180.
When interviewed by police, the respondent acknowledged that the victim was intoxicated and asleep. The respondent acknowledged that T was incapable of providing consent to the acts that constituted his offences. The respondent also admitted that he had indecently assaulted T without her consent and had photographed and filmed T without her consent. While admitting that he filmed the incident, the respondent told police that he did not penetrate any part of T's vagina.
The respondent admitted showing the friend some of the photographs he, the respondent, took of T.

The respondent's personal circumstances

The respondent was 26 years old at the time of the offending and 28 years old at the time of sentencing. He is currently 28 years of age.
There was no suggestion that the respondent came from a disadvantaged background. The author of a pre-sentence report recorded the respondent speaking of a positive childhood. The respondent grew up in Perth, attending a local primary school and two high schools, with a mother and father who continued to be supportive of him. The respondent had one sibling, a sister three years younger, with whom he had a close relationship. The respondent took on a supportive and protective role in relation to his sister insofar as his parents were working in jobs that required them to be away for periods of time.
The respondent left school in Year 11 and had a good work history. He had been employed in various mining and hospitality roles since leaving school. However, the respondent had long standing issues with alcohol and cannabis. He started using cannabis at the age of 13 and had used every day since the age of 23 onwards. The respondent had also experienced problems with alcohol for a significant period in his life. The respondent's alcohol consumption had caused him to attend Alcoholics Anonymous for a couple of sessions.
The night of the respondent's offending followed him having smoked four or five joints and having consumed a significant amount of alcohol.
The respondent had a prior criminal record. In addition to various driving offences this consisted of two incidents: (1) criminal trespass together with three offences of wilful damage (in 2011); and (2) disorderly behaviour in public and assaulting a public officer (in 2013). The respondent had never been sentenced to a term of imprisonment.
After his arrest, the respondent commenced attending sessions with a clinical psychologist in relation to, among other things, his drug and alcohol problems. The respondent said that he intended to continue his treatment for the foreseeable future. However, as at the date of the initial psychologist report - 24 June 2020 - while it was recorded that the respondent said he currently did not consume much alcohol, he admitted to continuing to use cannabis. By the 23 July 2020 date of the supplementary psychologist report, the respondent had ceased his alcohol consumption.
At the time he was sentenced, the respondent was not employed. The respondent was in a new relationship. The respondent's current partner, with whom he lived at his parents' house, was supportive of him and provided a character reference.

The sentencing disposition

Before the sentencing judge, counsel for the respondent conceded that a term of imprisonment was appropriate but contended that it was open for any such sentence to be suspended.[23] The State submitted that terms of immediate imprisonment were the only appropriate dispositions in relation to the offences.[24]
[23] ts 23, 34, 46, 60; Respondent's submissions dated 19 March 2020 par 109 WAB 215.
[24] ts 43 - 45, 49, 63; State's submissions dated 2 April 2020 par 7 WAB 217.
The sentencing judge summarised the circumstances of the offending. His Honour identified that there was some dispute about the facts in relation to count 3. The issue was whether, in addition to penetrating the victim's vagina, the respondent also rubbed the victim's clitoral hood. The sentencing judge considered that the resolution of that dispute was unnecessary as it could not materially affect sentence. That is not the subject of any ground of appeal.
Having identified relevant sentencing principles, the sentencing judge observed that:
1.The gravamen of the offending lay in the manner in which the offences were carried out - while the victim was asleep and in recording the offending.
2.While the respondent was intoxicated on cannabis and alcohol, that did not in any way excuse his behaviour.
3.When interviewed by police, the respondent made significant admissions.
4.The victim was vulnerable. T was intoxicated and asleep. The respondent violated the victim and breached the trust of friendship between the respondent and the victim. The victim impact statement made it clear that T had been significantly impacted by the offending.
5.The seriousness of the offending was found in the humiliating and degrading manner in which the respondent treated the victim.
The sentencing judge considered that counts 3 and 4 were the most serious offences. In isolation, however, the sexual penetration the subject of count 3 was at the lower end of that sort of offence (I understand the sentencing judge's reference to 'in isolation' to be referring to the degree of penetration divorced from the circumstances of aggravation). On the other hand, count 4 fell at least in the middle if not in the higher end of the range of offences of aggravated unlawful and indecent assault.
The sentencing judge referred to the respondent's personal circumstances and character references that had been provided to the court. Based on the character references the sentencing judge accepted that the respondent was loyal and caring, willing to help and support others and that the offending was out of character - being a source of regret and embarrassment. His Honour also apparently accepted that, in general, the respondent was honest and trustworthy. However, the sentencing judge did not accept the references so far as the referees said that the respondent had a strong ethical attitude towards females generally. There was support for this finding in the pre-sentence report and the author's observation that the respondent's attitude to the offending was one of minimisation and justification of the offending. Tempering this was a remark in the supplementary psychologist report, apparently accepted by the sentencing judge, to the effect that the psychologist had seen positive changes in the respondent's attitude towards women.
In terms of mitigating factors:
1.The sentencing judge was satisfied that the pleas of guilty were made at the first reasonable opportunity. His Honour considered that it was appropriate to provide for a discount pursuant to s 9AA of the Sentencing Act 1995 (WA) in an amount of 22%.
2.The sentencing judge observed that the respondent did not come before the court without a criminal history.
3.Based on the psychologist reports, the sentencing judge considered that the respondent was at a low risk of reoffending (particularly if he addressed sexual offending and alcohol and drug usage).
4.His Honour noted that, while a pre-sentence report suggested that the respondent had minimised and to some degree justified his offending, the supplementary psychologist report had recorded positive changes in the respondent's attitude. The supplementary report followed eight sessions, the last three of which had focussed on sexually inappropriate behaviour and its consequences for the victim of the offending.
5.The respondent was remorseful.
6.Insofar as the respondent was, at the time of the offence, 26 years of age, he was at the 'very outer limits' of a discount for youth, but it was still a relevant factor in the sentencing disposition.
The sentencing judge referred to the need to balance all the relevant factors and to consider general and specific deterrence. His Honour had no hesitation in concluding that the offences should each attract a term of imprisonment. Ultimately, however, the sentencing judge stated that:
[L]ooking at all factors, I'm not positively satisfied that only a term of immediate imprisonment would be appropriate. Consequently, I have decided that there is a need for you to address the underlying factors that contributed to your offending. And in my view the most significant of that is your attitude towards women. Consequently, I've decided that the appropriate dispositions in relation to each offence is a conditionally suspended term of imprisonment.[25]
[25] ts 69.
In referring to there being a need to address underlying factors that contributed to the offending, it appears that, at least in part, the sentencing judge had rehabilitation of the respondent in mind in determining that he was not satisfied that only a term of immediate imprisonment would be appropriate.
As mentioned, the sentences on counts 1 and 2 were 12 months' imprisonment. The sentences on counts 3 and 4 were 18 months' imprisonment. All sentences were conditionally suspended for 18 months and all terms were to run concurrently from the date of sentencing. His Honour imposed a program requirement and a supervision requirement in addition to the standard obligations.

Grounds of appeal and the parties' contentions

There are three grounds of appeal. The first concerns the type of sentence imposed and the others the length of the sentences as imposed. In substance the grounds are:
1.The sentencing judge erred in law in conditionally suspending the terms of imprisonment imposed for counts 1 - 4, such disposition being so inadequate as to manifest error (ground 1).
2.The sentencing judge erred in law in imposing individual sentences for counts 3 and 4 that were so inadequate in length as to manifest error (ground 2).
3.The sentencing judge erred in law in imposing a total effective sentence that was disproportionate to the overall criminality involved in all of the offences (ground 3).
On 27 August 2020 Buss P granted leave to appeal on those grounds.
In substance, the State contended that the total effective sentence of 18 months' imprisonment, conditionally suspended for 18 months, was outside the range of sentences imposed in broadly comparable cases, did not recognise the criminality of the respondent's offending, and was unreasonable and plainly unjust.
The State referred to: (1) the statutory maximum penalties for the various offences; (2) the serious nature and circumstances of the offences; (3) the vulnerability of the sleeping victim; (4) the aggravating circumstance that the respondent filmed and photographed the victim while he offended against her; (5) the need for the sentence to adequately reflect general deterrence and the appropriate punishment for offending of this nature; (6) the sentences imposed in broadly comparable cases; and (7) the personal circumstances of the respondent.
The State sought to emphasise that the respondent offended against a sleeping victim in circumstances that were likely seriously and substantially to degrade or humiliate the victim for his own sexual gratification. The State characterised the respondent's offending and treatment of the victim as selfish and grossly demeaning. The State submitted that the offending the subject of counts 1 and 2 were serious examples of aggravated indecent assaults and the offending the subject of count 4 was particularly egregious and degrading and could properly be regarded as being at the upper end of the scale of seriousness for an offence of this type. The seriousness of the offending in count 3 was said not to be found in the form or degree of penetration but in the circumstances in which the penetration was committed.

In written submissions the State identified two cases involving sexual offences that involved the offender photographing or filming a sleeping victim[26] and also sought to derive broad guidance from authorities concerning the digital penetration of sleeping victims.[27]
[26] LJW v The State of Western Australia [No 2] (LJW) [2007] WASCA 275; KNY v The State of Western Australia (KNY) [2019] WASCA 89.
[27] Referring, among other cases, to: Miles v The State of Western Australia [2010] WASCA 93; The State of Western Australia v Vartolo [2015] WASCA 53; Taylor v The State of Western Australia [2019] WASCA 217.
The State submitted that in all the relevant circumstances:
1.Sentences of immediate imprisonment were the only appropriate penalty, it not being open to the sentencing judge to conclude that a disposition other than immediate imprisonment was warranted in the present case.
2.The sentences imposed on the respondent were manifestly inadequate both as to type and (as to counts 3 and 4) length and had resulted in a sentencing outcome that was unreasonable and plainly unjust, failing to properly reflect the serious circumstances of the respondent's offending.
3.The total effective sentence of 18 months' imprisonment infringed the first limb of the totality principle in that it failed to properly reflect the seriousness of the respondent's offending as a whole.
The State further contended that there was no basis for invoking the residual discretion in the present case. The State submitted that the court's intervention was required to ensure that proper sentencing standards are established and maintained.
The respondent acknowledged that the type of sentence was lenient[28] and the length of the sentences was low.[29] In substance, however, the respondent contended that, in all the circumstances, the type and length of the sentences as imposed fell within the broad range of a sound sentencing discretion and were not unreasonable or plainly unjust.[30] The respondent referred to a number of 'comparable' cases,[31] while acknowledging that they were factually of limited utility.[32] In relation to count 3 the respondent contended that the degree of penetration was minimal.[33]
[28] Appeal ts 9; Respondent's submissions par 10 WAB 34.
[29] Appeal ts 9; Respondent's submissions par 47 WAB 39.
[30] Appeal ts 7, 9; Respondent's submissions pars 10, 13, 51 WAB 34, 40.
[31] These included: FST v The State of Western Australia [2011] WASCA 220; The State of Western Australia v Vartolo; Scaddon v The State of Western Australia [2015] WASCA 173; Alalyani v The State of Western Australia [2018] WASCA 44; Kabambi v The State of Western Australia [2019] WASCA 44; Lakay v The State of Western Australia [2019] WASCA 46.
[32] Respondent's submissions par 13 WAB 34.
[33] Respondent's submissions par 48 WAB 39.
Counsel for the respondent sought to emphasise that the sentencing judge was an experienced District Court judge who had the benefit of observing the respondent's demeanour throughout the sentencing process and who had the benefit of extensive written and oral materials.[34] The latter included two psychological reports, a pre-sentence report, a victim impact statement and six character references[35] as well as written submissions on behalf of both the respondent[36] and the State.[37] Those materials are before this court together with various additional materials.[38]
[34] Appeal ts 6 - 7; Respondent's submissions pars 11 - 12, 47 WAB 34, 39.
[35] Reproduced at WAB 226 - 233.
[36] WAB 203 - 215.
[37] WAB 216 - 225.
[38] For example: (1) the respondent's criminal record (WAB 108 - 109); (2) the amended statement of material facts (WAB 110 - 112); (3) a witness statement (WAB 113 - 116); and (4) the transcript of the respondent's interview with the Western Australian Police Force (WAB 117 - 202).

Post-appeal hearing application to reopen and adduce additional evidence

At the appeal hearing, counsel for the respondent informed the court that the respondent did not rely on the court's residual discretion to seek dismissal of the appeal should a basis for appellate intervention be established.[39]
[39] Appeal ts 9, 12. Compare respondent's submissions par 3, 49 WAB 32, 40.
The respondent did rely, however, on additional material in the event that the appeal was allowed and the respondent fell to be resentenced. The additional material comprised an affidavit of the respondent's solicitor affirmed 8 October 2020 which was the subject of an application dated 14 October 2020 to adduce additional evidence in the appeal. That application was unopposed. Accordingly, it is appropriate to allow the respondent to rely on the affidavit of his solicitor affirmed 8 October 2020.
In substance, the solicitor's affidavit affirmed 8 October 2020 provides that:
1.The respondent has attended community corrections on five occasions.
2.The respondent is scheduled to attend fortnightly sessions by way of sexual and substance abuse rehabilitation programs.
3.The respondent was attending an interview to determine his eligibility to take part in another sexual assault rehabilitation program.
4.The respondent had completely ceased using drugs and alcohol.
Approximately one week after the appeal hearing, the court received a letter from the respondent's solicitors. The letter informed the court that the respondent had continued to attend his consultant psychologist after his sentencing. This fact had not been communicated to counsel for the respondent (who had, in the course of the appeal hearing, accepted that the solicitor's affidavit affirmed 8 October 2020 provided no indication that the respondent had attended the psychologist since being sentenced).[40] The letter stated that the respondent's solicitors intended to obtain an updated report from the psychologist which would be filed and served as soon as it came to hand. The respondent's solicitors requested that the appeal not be determined until the court had that additional information.
[40] Appeal ts 11.
On receipt of the letter, a registrar of the Court of Appeal informed the respondent's solicitors that, if it was proposed to put additional evidence before the court post-hearing, it would be necessary for the respondent to make application to reopen after having first conferred with the State. Programming directions for any such application were made. The registrar informed the parties that, if such an application were made, the court would consider it on the papers as part of its reasons for decision on the appeal.
On 27 October 2020 the respondent lodged an application for leave to reopen which was accepted for filing on 28 October 2020. The application was accompanied by:
1.Further submissions dated 27 October 2020. Among other things the further submissions referred to the concession made by counsel for the respondent at the appeal hearing as to the residual discretion. The respondent sought to withdraw that concession, and rely on the residual discretion, insofar as information had been provided to the respondent's solicitors on his behalf that had not been passed on to the respondent's counsel.
2.The respondent's affidavit affirmed 27 October 2020. As well as attaching a further report from the consultant psychologist, dated 26 October 2020, the affidavit referred to other actions taken by the respondent post-sentence. The respondent sought leave to adduce and rely on the additional evidence in the appeal.
The application to reopen was supported by an affidavit of the respondent's solicitor affirmed 27 October 2020. The solicitor stated that:
Prior to the hearing of this appeal the respondent's mother contacted [the firm of solicitors acting for the respondent] and informed this office that the respondent had future bookings to continue his treatment with [the consultant psychologist].
Unfortunately, due to an oversight by our office, neither a further report from [the consultant psychologist] was requested nor was counsel informed of these future appointments.[41]
[41] Affidavit of A M Taylor affirmed 27 October 2020 pars 3 - 4.
The State filed responsive submissions on 28 October 2020. The State did not, in terms, oppose the application to reopen and adduce the additional evidence, but contended that there remained no basis for the residual discretion to be invoked in the present case. The State accepted that, if the court allowed the appeal, the material the respondent sought to put before the court may be taken into account for the purpose of resentencing.
Neither party sought a further oral hearing. It is appropriate to determine the application on the papers as part of these reasons for decision on the appeal.
The way in which these events have transpired is regrettable and ought not be repeated. The failure to bring all relevant matters concerning the respondent's ongoing rehabilitation attempts is simply inexplicable. That is all the more so when the respondent's solicitors filed an application to adduce additional evidence in the week preceding the appeal hearing. Nor is there any satisfactory explanation for the failure of the respondent's solicitors to immediately correct counsel's misapprehension of the circumstances - a misapprehension arising from the solicitors' failure to fully brief counsel - when at the appeal hearing the court raised with counsel for the respondent the lack of evidence that the respondent had continued to attend the consultant psychologist.
Nevertheless, these unsatisfactory failures are failures on the part of the respondent's solicitors rather than the respondent himself. The respondent could reasonably expect that his solicitors ought to have passed all relevant information on to his counsel. Had that occurred it is likely, in my view, that: (1) evidence of the type now sought to be adduced as additional evidence would have been sought to be adduced at the appeal hearing; and (2) the concession as to the residual discretion would not have been provided at the appeal hearing.
The additional affidavit evidence sought to be adduced is highly material to the residual discretion and any resentencing. The respondent deposes that:
1.Since he was sentenced on 31 July 2020, he has attended the consultant psychologist on a further three occasions (17 September 2020, 1 October 2020 and 15 October 2020).[42]
2.He is scheduled to see the consultant psychologist on 29 October 2020, 9 November 2020 and 19 November 2020.[43]
3.In addition to attending the consultant psychologist, he has - of his own volition - enrolled to attend a sexual rehabilitation program at East Perth Adult Community Corrections. The program is six months in length and runs in the form of one hour sessions every Monday and Thursday. It has a particular emphasis on prevention and causality.[44]
[42] Affidavit of D R Syred affirmed 27 October 2020 par 3.
[43] Affidavit of D R Syred affirmed 27 October 2020 par 6.
[44] Affidavit of D R Syred affirmed 27 October 2020 pars 7 - 9.
The respondent's affidavit also attaches a 26 October 2020 report from the consultant psychologist. The psychologist confirms her further three sessions with the respondent and the bookings for future sessions. The report refers to the respondent's immediate reaction to having received a conditionally suspended sentence - one of tears as he expected to be incarcerated - and the steps the respondent took to obtain steady employment. Almost immediately after the sentence the respondent secured employment as a truck driver and fork lift operator. The respondent has also obtained rental accommodation and there is a possibility that he may be able to purchase the particular property.
The consultant psychologist referred to the respondent's enrolment in the sexual rehabilitation program and recommencement of some recreational activities. Mention was made of goals that the respondent has set for himself. At a recent session, the psychologist reported the following changes, among others, in relation to the respondent:
1.He had stopped smoking marijuana.
2.He had expressed his guilt over his offending behaviour and resolved never to do that again.
3.He was more positive and productive rather than wallowing in depression.
The consultant psychologist's opinion was that the respondent was engaging well with his treatment program and had made significant gains in many aspects of his life. The psychologist considered that the respondent had shown remorse for his offending behaviour. Among other things the respondent had expressed a desire to apologise to the victim (something which was not possible due to a restraining order presently in effect).
The application to reopen has been brought relatively promptly and before the court informed the parties of an intention to deliver judgment. The failure to seek to adduce the additional matters at the appeal hearing is entirely attributable to the respondent's solicitors rather the respondent personally. The additional evidence is, in my view, highly material. Insofar as the additional evidence goes to the residual discretion - and insofar as, in effect, the respondent wishes to withdraw the concession previously made on his behalf that he does not invoke the residual discretion - it is relevant that the respondent does not bear an onus to establish that the residual discretion should be exercised in his favour. It is incumbent on the State to negate any reason why the residual discretion of the court not to interfere should be exercised.[45]
[45] The State of Western Australia v Wilkins [2020] WASCA 149 [85].
Importantly, the nature of the appeal is such that, if the State is successful, the respondent will inevitably face a term of immediate imprisonment.
In all the circumstances it is in the interests of justice that the respondent be granted leave to reopen and to adduce and rely on the additional evidence comprised in his affidavit affirmed 27 October 2020. The respondent should also be permitted to withdraw the previous concession and to make the submissions comprised in the further submissions dated 27 October 2020. The appeal should be treated on its merits, having regard to all the available evidence, rather than the incomplete picture that would otherwise exist due to the failings of the respondent's solicitors.

General principles: State appeals against conditional suspended sentences and sentences generally

Ground 1 alleges that the sentences were manifestly inadequate in that the wrong type of sentence was imposed. It is well-established that a sentencing judge must be positively satisfied that it is not appropriate to suspend or conditionally suspend a term of imprisonment before the term can be ordered to be served immediately. If that state of satisfaction is not reached - ie the sentencing judge is not satisfied that it is not appropriate to use an earlier listed sentencing option - a term of immediate imprisonment must not be imposed. Thus:
[W]hen a sentence is said to be manifestly inadequate as to type, the question for this court is whether it was reasonably open to the sentencing judge, upon application of the relevant sentencing principles and considerations and in all the circumstances, to fail to be satisfied that earlier listed sentencing options in s 39(2) of the Sentencing Act 1995 (WA) were inappropriate.[46]
[46] The State of Western Australia v Egeland [2018] WASCA 228; (2018) 276 A Crim R 77 [139].
In other words, given the obligation in s 39(3) of the Sentencing Act, a State appeal challenging the imposition of a conditionally suspended term of imprisonment must demonstrate that it was not open to the sentencing judge to fail to reach a state of satisfaction that it was not appropriate to impose a sentence of conditional suspended imprisonment. The State must exclude the possibility that it was reasonably open to the sentencing judge not to reach that state of satisfaction.
As to grounds 2 and 3, the general principles applicable to a State appeal against sentence on grounds of manifest inadequacy and breach of the first limb of the totality principle are well-established. In The State of Western Australia v BKJ, they were summarised in the following terms:
In The State of Western Australia v Wilson we explained the general principles applicable to a State appeal against sentence.
This court has no warrant to substitute its own opinion for that of the sentencing judge merely because it would have exercised the discretion differently: Lowndes v The Queen [15]. This court can only intervene if it is demonstrated that the court below made a material error, either express or implied. There are special principles applicable to prosecution appeals. They are well established and need not be repeated, bearing in mind that the principle of double jeopardy which applied to State appeals has now been abolished: s 41(4)(b) Criminal Appeals Act 2004 (WA). This court has a residual discretion under s 31 of the Criminal Appeals Act to decline to allow an appeal against a sentence that is erroneously lenient.
The grounds of appeal allege implied rather than express error. Before an individual sentence can be said to be manifestly inadequate or the total effective sentence be found to infringe the totality principle, it must be established that the sentence is unreasonable or plainly unjust: House v The King (505) and Barbaro v The Queen [26].
The orthodox approach to the question of manifest inadequacy is to examine the sentence having regard to the maximum sentence for the offence, the gravity of the offending conduct in the scale of seriousness, sentences imposed in other appellate cases and the personal circumstances of the offender: Chan v The Queen (342) and Munda v The State of Western Australia [33].
The first limb of the totality principle requires that the total effective sentence bear a proper relationship to the overall criminality involved in all the offences, viewed in their entirety and having regard to the circumstances of the case, including those referable to the offender personally: Roffey v The State of Western Australia [24].
A relevant factor in the consideration of the appellant's grounds of appeal is the range of sentences imposed in comparable cases. Such cases are a yardstick against which the sentences in question may be compared. However, the range of sentences customarily imposed does not mark out the boundaries of the exercise of a sound sentencing discretion in an individual case. In other words, the guidance that is afforded by comparable cases is flexible rather than rigid. Ultimately, each case depends upon its own facts and circumstances.[47] (full citations omitted)
[47] The State of Western Australia v BKJ [2018] WASCA 136 [82] ‑ [87]. See also The State of Western Australia v TLP [2019] WASCA 66 [85]; NDY v The State of Western Australia [2020] WASCA 172 [95].
Each of grounds 1 - 3 allege an implied error. Accordingly, the State must demonstrate that the sentencing outcome was one that was not reasonably open to the sentencing judge in the proper exercise of his Honour's discretion. As the respondent submitted, this court cannot intervene simply because it would have exercised the sentencing discretion differently.

Disposition: Are the terms of conditional suspended imprisonment manifestly inadequate (ground 1)?

Suspended or immediate imprisonment

A court must not impose a term of immediate imprisonment unless satisfied, having regard to the sentencing principles in div 1 of pt 2 of the Sentencing Act, that it is not appropriate to impose some form of suspended imprisonment.[48]
[48] Sentencing Act 1995 (WA) s 39(2) and (3).
In Cross v The State of Western Australia this court stated the following general principles:[49]
1.A court is not permitted to impose a term of immediate imprisonment unless that is the only appropriate sentencing option.
2.In determining whether to exercise the power to suspend a term of imprisonment the court must look again at all matters relevant to the circumstances of the offence and the personal circumstances of the offender.
3.The discretion to suspend or conditionally suspend a term of imprisonment is not confined by considerations relating to rehabilitation. The objective features of an offence may, in a particular case, outweigh the personal considerations of rehabilitation.
4.Even if a term of imprisonment is generally the appropriate penalty, the sentencing judge must determine the appropriate penalty for the particular case, having regard to all relevant sentencing factors.
[49] Cross v The State of Western Australia [2018] WASCA 86; (2018) 272 A Crim R 549 [33] - [35]. See also DKN v The State of Western Australia [2018] WASCA 87 [35] - [37].

The rationale for not imposing an immediate term of imprisonment in a given case will vary according to the particular facts and circumstances of the case.[50] It is useful, in this respect, to recall the observations of Wheeler JA in The State of Western Australia v Marchese.[51] Those observations have recently been relied on to make the self-evident point that the capacity of a sentencing judge to impose a sentence which may be characterised as lenient or merciful is to be exercised for the benefit of the community.[52] Consistent with that, there will be cases where immediate imprisonment is the only sentencing option which is commensurate with the seriousness of the offence, even where it is counterproductive from the perspective of rehabilitation. The seriousness of the nature and circumstances of the offending may require a sentence of immediate imprisonment irrespective of the personal circumstances of the offender.[53]
[50] See eg, in the context of possession of a prohibited drug with intent to sell or supply, the discussion in The State of Western Australia v Egeland [154] - [165], [172], [174] - [180].
[51] The State of Western Australia v Marchese [2006] WASCA 153; (2006) 163 A Crim R 363 [44] - [46].
[52] The State of Western Australia v Egeland [176].
[53] The State of Western Australia v Egeland [177].
Ordinarily - ie as a matter of fact - a term of immediate imprisonment is the only appropriate penalty for the offence of sexual penetration without consent: a lesser type of sentence will be imposed only in exceptional circumstances.[54] That includes a case where the form of sexual penetration is digital penetration. [55] Similarly, the seriousness of sexually assaulting a sleeping or unconscious complainant is reflected in the circumstance that ordinarily - ie as a matter of fact - a sentence of immediate imprisonment is imposed.[56]
[54] Mearns v The State of Western Australia [2009] WASCA 153 [8]; FST v The State of Western Australia [38], [42]; Scaddon v The State of Western Australia [24].
[55] R v Smith [2004] WASCA 44 [21].
[56] FST v The State of Western Australia [7] (referring to R v Clark [2000] WASCA 229, R v Cleak [2004] WASCA 72 and Mearns v The State of Western Australia).
In oral submissions, senior counsel for the State informed the court that no authorities had been identified where this court had imposed or upheld a suspended or conditionally suspended sentence in respect of an offence against s 325 (sexual penetration without consent) or s 326 (aggravated sexual penetration without consent) of the Criminal Code.[57]
[57] Appeal ts 3 - 4.
My research bears that out as to the offence under s 326 of the Criminal Code. There is, however, one case where the Court of Criminal Appeal (this court's predecessor) upheld a suspended sentence in relation to an offence under s 325 of the Criminal Code.
In R v Smith the offender was convicted after trial of four counts of indecent assault and one count of sexual penetration. The offender and the complainant occupied shared accommodation. The offences arose out of mutual tickling one morning while the complainant remained dressed in night attire. The indecent assaults consisted of the offender simulating sexual intercourse while kissing the complainant's neck, squeezing the complainant's breasts, touching the complainant's face with his penis and squeezing the complainant's buttocks. The sexual penetration consisted of the offender penetrating the complainant's vagina with his finger. The offences involved forceful behaviour and the complainant was left with some minor physical bruising and abrasions. The offender was sentenced to 12 months' imprisonment on each count of indecent assault and 2 years' imprisonment on the count of sexual penetration. The sentences were ordered to be served concurrently and were suspended for 2 years. A Crown appeal against the sentence was dismissed.
The conduct was not premeditated. It followed a short period of consensual physical interaction. There was no relationship of trust and confidence or vulnerability. The offences were found to be out of character and an isolated incident. In dismissing the appeal the court was not persuaded that a suspended sentence was outside the range of a sound discretionary judgment and that only a term of immediate imprisonment was appropriate.
Little assistance can be derived from R v Smith. Aside from the fact that the offending involved digital penetration, the circumstances are not comparable with the present case. With sexual offences it is accepted that the sentence imposed in one case can provide only very limited guidance in deciding what sentence should be imposed for a similar offence in another case.[58] Manifest excessiveness is not shown merely by pointing to one or two cases in which lesser sentences were imposed for comparable offences committed in comparable circumstances by comparable offenders. In the same way, a single case where a suspended sentence has been upheld does not, in my view, establish anything more than that in that particular case suspension was not unreasonable or plainly unjust in all the circumstances of the particular offending and the particular offender.
[58] The State of Western Australia v Akizuki [2008] WASCA 267; (2008) 192 A Crim R 373 [68].
In empirical terms, however, the circumstance that only one such case has been identified supports the observations made in [105] above to the effect that the imposition of a sentence other than immediate imprisonment for an offence of sexual penetration is, as a matter of fact, exceptional.

Sentencing: sexual penetration without consent and indecent dealings

General considerations

There is no tariff for sexual offences because of the enormous range of conduct which can come within the description of the offences and the great variation in the personal circumstances of the offenders.[59] That accepted circumstance means that comparable cases may only provide very limited guidance. There will often be significant differences in the circumstances of the offending and the offenders.[60]
[59] Singh v The State of Western Australia [2017] WASCA 47 [41.5].
[60] The State of Western Australia v Akizuki [68].
In considering customary sentencing standards, it is informative to have regard to the standards of sentencing for offences contrary to s 325 of the Criminal Code. That is the offence of sexual penetration, without consent, absent any circumstances of aggravation, where the maximum penalty is 14 years' imprisonment. This court recently summarised the general approach under s 325 in McNally v The State of Western Australia:[61]
The general sentencing standards for offences contrary to s 325 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. In NPA v The State of Western Australia [51], it was observed:
In a case of a single count of penile penetration of the vagina where there is a plea of not guilty, a term of imprisonment of 5 to 6 years would not be unusual. It is important to emphasise that this does not mean that a sentence outside that range is thereby manifestly excessive (or inadequate). The circumstances of offending vary widely. The available maximum sentence must not be overlooked. Sentences well beyond that range may be justified by the circumstances of the case.
See also Kabambi v The State of Western Australia [23] and Lakay v The State of Western Australia [38].
There is no 'hierarchy' of sexual penetration. See C v The State of Western Australia. The observations in NPA in relation to a single count of penile penetration of the vagina where there is a plea of not guilty apply generally in relation to a single count of penile penetration of the anus where there is a plea of not guilty. (full citations omitted)
[61] McNally v The State of Western Australia [2019] WASCA 93 [53] - [54] (adopted in The State of Western Australia v Jacoby [2020] WASCA 150 [52]; NDY v The State of Western Australia [101]).
McNally concerned penile penetration of the anus; NPA concerned penile penetration of the vagina. The present case is one of digital penetration of the vagina. That is a relevant factor even though it is accepted that there is no hierarchy of sexual penetration. Although digital penetration will ordinarily be less serious than penile penetration, that is not inevitably so. It might, in particular circumstances, be no less serious or even more serious. The seriousness of every offence of unlawful sexual penetration must be determined by its own individual circumstances.[62] Digital penetration as an offence should not be underrated in its seriousness.[63]
[62] The State of Western Australia v Akizuki [68(3)].
[63] Cavill v The State of Western Australia [2008] WASCA 108 [267]; Taylor v The State of Western Australia [74].
Count 3 did not concern an offence under s 325 of the Criminal Code but rather the offence of aggravated sexual penetration without consent contrary to s 326 of the Criminal Code. The circumstance of aggravation was that referred to in s 319(1)(a)(iv), namely, that the respondent did an act which was 'likely seriously and substantially to degrade or humiliate the victim'. An immediate consequence of the circumstance of aggravation - in this case the recording of the images and videos of the respondent's offending against T - was that the maximum penalty for the offence was 20 years' imprisonment rather than the 14 years' imprisonment under s 325 of the Criminal Code.
The higher maximum statutory penalty for the offence under s 326 is an indication as to the seriousness of the offence vis-à-vis an offence under s 325. The maximum penalty for an offence 'provide[s], taken and balanced with all of the other relevant factors, a yardstick'.[64]

The seriousness of the offending: sleeping victim, sexual offences and the recording of images / videos

[64] Director of Public Prosecutions (Vic) v Dalgliesh (a Pseudonym) [2017] HCA 41; (2017) 262 CLR 428 [10].

There were three particular features of the respondent's offending which bore on its seriousness: the victim was asleep and vulnerable; there was digital penetration in which the respondent took advantage of the victim together with an indecent assault where the respondent ejaculated on the victim; and, aggravating the offending, the respondent recorded and retained images and videos of the victim's body as taken in the course of the offending in a manner that was seriously and substantially degrading and humiliating of the victim.
The nature of the images has been described earlier. They were, on any view, exceedingly demeaning and offensive of T. Accentuating the respondent's disrespectful sense of entitlement to appropriate in a permanent way naked images of T for his own sexual gratification was the positioning of T that the respondent employed in recording the images and videos. The respondent took steps to graphically display intimate parts of T's body and the way in which he, the respondent, had violated T. The respondent's egregious treatment of T is made plain when regard is had to what was said by the respondent in his police interview. The respondent stated that in the early stages of their relationship T had declined to send him nude photographs of herself. The respondent had asked T to send nude photographs but T had said that she was not that sort of person.[65] Despite knowing this, the respondent took advantage of T's vulnerable state to record numerous graphic images and videos.
[65] WAB 137 - 138.
The respondent's offending was a gross invasion of T's bodily autonomy and privacy. The respondent not only sexually penetrated and indecently assaulted T, among other things ejaculating on her breast; but, without regard for T's dignity, the respondent took and retained images and videos of T's naked body and his interference with T's person.
The parties were agreed that there were relatively few broadly comparable cases. On examination none are directly comparable. Each has some common features and some distinguishing features with the present case. The absence of directly comparable cases does not preclude this court from determining that the sentences are manifestly inadequate as to type (or as to length). That circumstance merely has the consequence that the court has no prior decisions that are directly comparable by which to assess the sentence imposed at first instance. There is, in any event, some value in reviewing the broadly comparable cases to which the parties made reference. I will start with the two cases referred to by the State which involved the offender photographing and videoing a sleeping victim.

Comparable cases: recording images and photos of naked sleeping victim when sexual offence being committed

In LJW the offender pleaded guilty to one count of causing a noxious thing, namely a sedative, to be administered to his wife and one count of aggravated indecent assault. As to the second count, while his wife was passed out having drunk a substantial amount of wine, the offender positioned his wife on their bed, naked, and took graphic photographs of her vagina with her legs spread wide apart. The offender used the photographs to gain access to various pornographic websites. The wife found the photographs embedded in an email on the family computer with the title: 'wife drunk, passed out and fucked'. The offender was 46 years old and a first offender with excellent references. He was given credit for remorse. The offender was sentenced to 8 months' immediate imprisonment on the count of administering the noxious substance and 16 months' immediate imprisonment on the count of aggravated indecent assault, each to be served cumulatively. An appeal claiming, among other things, that the individual sentence for the aggravated indecent assault was manifestly excessive as to length and type, was dismissed.
Steytler P (with whom McLure JA agreed) characterised the sentence imposed on count 2 as undoubtedly severe but not manifestly excessive. His Honour said that it involved a gross breach of trust and the uncaring degradation and humiliation of the wife. The conduct demanded a punishment that recognised the seriousness of the offending behaviour and would have the requisite deterrent effect.[66] The seriousness of the conduct was such that it was 'not open' to suspend the sentence.[67]
[66] LJW [20].
[67] LJW [23].
Miller JA characterised the degradation and humiliation suffered by the complainant as such as to make the offence a bad case of its type.[68] His Honour considered that the offence of indecent aggravated assault called for a substantial sentence of imprisonment and that 16 months' imprisonment was well within the range of sentences that could have been imposed.[69] Miller JA, like Steytler P, considered that the sentencing judge was correct to conclude that the offences were too serious to justify suspension. His Honour considered that the photographing of the complainant after positioning her to expose her vagina was extremely degrading and humiliating.[70]
[68] LJW [77].
[69] LJW [79].
[70] LJW [91].
LJW did not involve an offence of sexual penetration. While the offender did not have the benefit of youth, his antecedents were better than those of the respondent. The nature of the indecent assault in LJW was less serious than that in the present case. The respondent's act of ejaculating on to T's breast - having exposed T's breast to do so - was particularly demeaning. The sentencing judge was correct to describe it as being in the middle to higher end of the range of seriousness of offences of its type. One aspect of the offending in LJW was more culpable. In the present case the respondent did not use the images and videos in a manner equivalent to that of the offender in LJW. However, the respondent did show some of the images to a mutual acquaintance of the respondent and T.
KNY involved more serious offending than the offending of the respondent.
The offender was charged with three sexual offences against two complainants. For present purposes it is only necessary to refer to count 1. This involved an offence of aggravated sexual penetration without consent against the offender's same-sex partner. The offender and his partner had been in a domestic relationship for about two years. The partner found a video file in a device connected to the offender's computer. The video file showed the offender penetrating the partner's anus with his, the offender's, penis, while the partner was unconscious. The partner had no recollection of the encounter and was unaware that it had been recorded. The partner asked the offender to delete the video; the offender did not do so. The offender was convicted following trial - having contended that the sexual penetration was consensual - and was sentenced to a term of 6 years' imprisonment for count 1. He was found to have absolutely no remorse or insight. Although the offences were found to be out of character, minimal matters of mitigation were available to the offender. The offender's appeal on the ground of manifest excessiveness was dismissed.
The court referred to three cases involving the sexual penetration of a sleeping complainant where sentences from 3 years' immediate imprisonment to 4 years 3 months' immediate imprisonment were imposed or upheld on appeal.[71] Otherwise, having referred to NPA, after referring to the seriousness of the offence, the victim's vulnerability and the adverse effects the offending had on the complainant, the court concluded that taking all relevant sentencing considerations into account the sentence of 6 years' immediate imprisonment was an appropriate exercise of the sentencing discretion.[72] In terms of possible relevance to the present case the court simply recorded that the offending was aggravated by the fact that it was video-recorded.[73]
[71] KNY [71].
[72] KNY [72] - [74].
[73] KNY [74]. See also [69].
KNY involved offending and an offender with personal circumstances too dissimilar to the present case to be of any real assistance in the disposition of the appeal. The most that can be said is that, insofar as the 6 years' immediate imprisonment was higher than the 3 years to 4 years 3 months' immediate imprisonment identified in the other cases, the higher sentence might be seen as warranted - in at least some respect - by the circumstance of aggravation constituted by the video recording of the offending.

Comparable cases: sexual penetration of sleeping victims

The parties also referred to cases said to be broadly comparable involving the sexual penetration without consent of sleeping victims.
The State concentrated on such offences where they involved digital penetration, but made passing reference to a number of cases involving penile-vaginal sexual penetration of a sleeping victim[74] and digital penetration generally (ie of a victim while awake).[75] The latter two categories of authority were only mentioned to exclude any suggestion that they supported the proposition that a conditionally suspended term of imprisonment is ordinarily an appropriate sentencing disposition for offences of that type. I accept that to be the case although, as mentioned, there is one example of an offence of digital sexual penetration without consent in which a suspended term of imprisonment was upheld on appeal.
[74] Appellant's submissions par 52 WAB 26 (referring to FST v The State of Western Australia, The State of Western Australia v Staniforth-Smith [2014] WASCA 170 (a case involving sexual offences against a child); Alalyani v The State of Western Australia, Kabambi v The State of Western Australia, Lakay v The State of Western Australia).
[75] Appellant's submissions par 53 WAB 26 (referring to: Cavill v The State of Western Australia; Grubisic v The State of Western Australia [2011] WASCA 147; (2011) 41 WAR 424).

The authorities mentioned on behalf of the respondent were predominantly cases involving penile-vaginal sexual penetration without consent of a sleeping victim. The respondent did, however, refer to Scaddon v The State of Western Australia (which was not a case of a sleeping victim but included a count of digital penetration) and The State of Western Australia v Vartolo (where one count concerned digital penetration).
The authorities involving digital sexual penetration without consent of sleeping victims are more directly comparable to the present case. Accordingly, I will refer to them below. As to the others, I have considered the sentencing dispositions in the cases relied on by the respondent in the context of the circumstances of the offending and the personal circumstances of the offender. They comprise: FST v The State of Western Australia (offender resentenced to 3 years' immediate imprisonment on appeal following conviction after trial for offending characterised as opportunistic and falling towards the lower end of the scale of seriousness for offences of this type); Alalyani v The State of Western Australia (dismissal of an appeal on the ground of manifest excessiveness against a sentence of 4 years' immediate imprisonment; there was no plea of guilty or mitigation for remorse); Kabambi v The State of Western Australia (dismissal of an appeal on the ground of manifest excessiveness against a sentence of 4 years' immediate imprisonment; the offender was of prior good character and received a discount of 20% for a plea of guilty); and Lakay v The State of Western Australia (dismissal of an appeal on the ground of manifest excessiveness against a sentence of 3 years 9 months' immediate imprisonment following conviction after trial).
The cases relied on by the respondent provide for a range of 3 years to 4 years' immediate imprisonment for an offence of sexual penetration without consent contrary to s 325 involving a sleeping victim and penile-vaginal penetration. Those cases and that implicit range tend, in my view, to support the proposition that the sentence of 18 months' conditionally suspended imprisonment imposed on the respondent in relation to count 3 (for aggravated sexual penetration without consent contrary to s 326) was manifestly inadequate as to length and type.
It should not be thought that the cases referred to by the respondent comprise a comprehensive survey of the available cases involving sexual penetration of a sleeping victim. For example, the respondent made no reference to Mearns v The State of Western Australia or the authorities of R v Clark and R v Cleak referred to in Mearns. There the sentences ranged from 20 months' immediate imprisonment[76] to 2 years and 5 months'[77] immediate imprisonment (noting also that in R v Cleak the Court of Criminal Appeal overturned a sentence of 18 months' imprisonment suspended for 12 months and resentenced the offender to a term of immediate imprisonment). Those cases were, however, at the lower end of the scale of seriousness and involved younger offenders (18 to 21 years of age)[78] which significantly mitigated their offending.
[76] R v Cleak.
[77] R v Clark (this being the post-transitional conversion).
[78] A circumstance noted by Mazza JA in The State of Western Australia v Vartolo [78].
Nor should it be thought that, by separately addressing sentencing dispositions in cases concerning penile-vaginal sexual penetration of sleeping victims, I am suggesting that there is a different starting point for each category of sexual penetration without consent and the cases referred to establish such a range for this particular category. This court has not embraced such an approach.[79] I have considered the sentencing dispositions in this category of case because it was these cases that the respondent relied upon.
[79] The State of Western Australia v Akizuki [68(3)].
Having referred to the cases relied on by the respondent, I turn to those relied on by the State. They concerned digital penetration of a sleeping victim.
Miles v The State of Western Australia concerned a 33 year old offender and a 17 year old complainant. The complainant, who was intoxicated, went to bed on a fold out bed with her boyfriend at a friend's house. At some point in time the offender lay down on the other side of the complainant's boyfriend. The complainant awoke to find the offender's fingers in her vagina. He moved his fingers in and out. The offender was convicted after trial and sentenced to 2 years' immediate imprisonment. An appeal on the ground that the sentence was manifestly excessive was dismissed. Jenkins J (with whom McLure P and Buss JA agreed) referred to four cases where the sentences for an offence of digital penetration ranged from 8 months to 2 years 8 months' immediate imprisonment.[80] While the objective circumstances of the offence put it at the lower end of the range the sentence of 2 years' immediate imprisonment was not manifestly excessive where the offender did not plead guilty, deserved no credit for prior good character and where personal deterrence was a relevant factor.[81]
[80] Miles v The State of Western Australia [43] - [49].
[81] Miles v The State of Western Australia [50], [54].
The respondent referred to Scaddon v The State of Western Australia. That case involved two counts of aggravated sexual penetration. The circumstance of aggravation was that the offender was in a domestic relationship with the complainant. Count 1 involved a digital penetration of the complaint's vagina, for which the sentence imposed was 1 year's immediate imprisonment. Count 2 involved a penile penetration of the complainant's vagina, for which the sentence imposed was 2 years 8 months' immediate imprisonment.
Only the sentence the subject of count 2 was appealed. It was held that the proposed ground of appeal that the sentence on count 2 was manifestly excessive had no reasonable prospect of succeeding. So far as this court was not called upon to consider the sentence imposed on the offence of digital penetration the case is of no assistance as a comparable case. The standards of sentencing customarily imposed with respect to a type of offence are established by decisions of this court rather than sentencing at first instance. In any event, this was not a case of a sleeping victim.
The State of Western Australia v Vartolo was a State appeal against sentence. The complainant was at home sleeping after a night of drinking. The complainant's boyfriend came home later, having continued drinking, in the company of the offender (who was a stranger to the complainant). The boyfriend fell asleep in the bathroom. The offender went into the complainant's bedroom, removed his clothes, and climbed into bed with the complainant. The offender fondled the complainant's genitals and then digitally penetrated the complainant's vagina (count 1) and thereafter engaged in sexual intercourse sexually penetrating the complainant's vagina with his penis (count 2). On waking the complainant pushed the offender away after realising that he was not her boyfriend.
The offender pleaded guilty (receiving a 15% discount pursuant to s 9AA of the Sentencing Act) and was sentenced to 1 year's immediate imprisonment on count 1 and 2 years' immediate imprisonment on count 2. The offender was 26 years old and was found to be of prior good character, having had only a minor irrelevant criminal history. Despite the plea of guilty the offender displayed no victim empathy or remorse. The offender's attitude toward his offending was described as defiant.
The State's appeal was allowed on a number of grounds. The offender was resentenced to a term of 2 years' immediate imprisonment on count 1 (the digital penetration) and 3 years 6 months' immediate imprisonment on count 2. Both sentences were to be served concurrently. Mazza JA (with whom McLure P and Buss JA agreed) observed that '[p]lainly terms of immediate imprisonment are the only appropriate penalties in this case'.[82]
[82] The State of Western Australia v Vartolo [88].
While, overall, the offender's offending was more serious than that of the respondent - there being two counts of sexual penetration against a sleeping stranger - the offending the subject of count 1 (the digital penetration) is of some guidance to count 3 in the present case. While the penetration in the present case was less serious it was accompanied by circumstances of aggravation that were not found in The State of Western Australia v Vartolo. In that respect, as previously noted, it is necessary to take into account the different maximum penalty that applies to an offence of aggravated sexual penetration without consent.
The last of the digital penetration cases is Taylor v The State of Western Australia. This involved a successful appeal by the offender. The 57 year old offender and the 27 year old complainant had been drinking at a mutual friend's house. The complainant went to sleep in a bedroom. She awoke to find the offender digitally penetrating her vagina with his finger. The complainant rolled away. The offender pleaded guilty on the basis that he held an honest but unreasonable belief that the complainant was consenting to the sexual penetration. On appeal the original sentence of 3 years' immediate imprisonment was reduced to 2 years' immediate imprisonment.
Three things should be kept in mind when having regard to the outcome in Taylor v The State of Western Australia. First, unlike the present case - where there was no such belief - the offender in Taylor had an honest but unreasonable belief as to consent. In that respect, as was explained in Taylor,[83] the culpability of the offending was less serious than if there had not been such a belief. Against that, however, the plea of guilty was late and the discount afforded was only 15%. Second, the offender in Taylor was entitled to some mitigation on account of intellectual impairment, significant and ongoing health issues and being a person of good character for the last 20 years. Finally, as has been mentioned, in the present case the respondent's offending occurred in circumstances of aggravation and this attracts a higher maximum penalty.
[83] Taylor v The State of Western Australia [96].
The State submitted that the sentence of 2 years' immediate imprisonment imposed in Taylor v The State of Western Australia for a single offence of sexual penetration (without circumstances of aggravation) tended to show that the 18 months' conditionally suspended imprisonment imposed on the respondent in relation to count 3 (being an offence of aggravated sexual penetration without consent) was manifestly inadequate as to length and type.[84]
[84] Appellant's submissions par 48 WAB 24.
I accept that submission. The offending in the present case was more serious than the offending in Taylor v The State of Western Australia. It might be said that the extent of the penetration was less intrusive and in that respect at the lower end of the range of seriousness in terms of sexual penetration. Nonetheless, it constituted a knowing violation of T without any honest belief as to consent. Moreover, as the sentencing judge correctly identified, the seriousness of the respondent's offending was in the circumstances of aggravation. The recording of the images and videos - likely seriously and substantially to degrade and humiliate the victim - took the seriousness of the offence constituted by count 3 well beyond the offending in Taylor. Looking beyond the comparative seriousness of the offending, there is little to differentiate the two offenders in terms of mitigating factors. The respondent received a greater discount for his early plea of guilty but the offender in Taylor had the benefit of other mitigating circumstances.
It must, however, be remembered that Taylor v The State of Western Australia is just one case. The sentence imposed in Taylor can provide only limited guidance for the present case. Ultimately, so far as the State raises implied error, appellate intervention is not justified simply because the sentence imposed on the respondent was markedly different from the sentences in other cases. It must be concluded that the difference is such that, in all the circumstances, there must have been some misapplication of principle, even though where and how is not apparent from the sentencing remarks.[85]

Conclusion on ground 1

[85] Wong v The Queen [2011] HCA 64; (2001) 207 CLR 584 [58].

There is no dispute that imprisonment was the only appropriate sentence for the respondent's various offending. The sentencing judge correctly found that terms of imprisonment had to be imposed. The critical question is whether error is to be implied by the sentencing outcome in imposing sentences other than an immediate term of imprisonment. In my opinion the circumstances of the present case were not such as to leave reasonably open to the sentencing judge the imposition of suspended imprisonment of any kind in respect of the offence the subject of count 3. Accordingly, I have concluded, respectfully, that in that aspect of the sentencing disposition the sentencing judge was in error in the manner contended for in ground 1.
Manifest inadequacy of sentence - including inadequacy because the wrong type of sentence was imposed - is a conclusion. In forming my overall conclusion as to whether the type of sentence imposed for count 3 was manifestly inadequate I have had regard to all of the matters referred to above and in particular to the following:
1.The respondent's offending was serious. He took advantage of T while she was asleep and vulnerable - and, being asleep, was completely unable to protect herself. For the reasons already canvassed (see in particular [117] - [120] above) the seriousness of the offending was in the circumstances of aggravation, ie the recording of the photographs and videos. That was especially so where the respondent was aware that T had refused to send him nude photographs of herself as she was not that sort of person.
2.T's victim impact statement demonstrates the significant impact the offending has had on her. That distress is well understandable. The offences committed against T's person are compounded by the humiliation of knowing that the respondent recorded and retained images and videos of intimate parts of T's body and the non-consensual sexual activity inflicted on her. In any case the sexual penetration of an unconscious victim will ordinarily, as a matter of fact, have a very significant psychological impact on the victim.[86] It is to be expected that the psychological impact will be magnified by the knowledge that the respondent recorded graphic images and videos for his gratification, some of which were shown to an acquaintance of the victim.
3.In relation to count 3, the sentence of 18 months' imprisonment, conditionally suspended for a period of 18 months, is not generally consistent with the broadly comparable cases.
4.The imposition of a suspended term of imprisonment for an offence of sexual penetration without consent - either unaggravated or aggravated - is exceptional as a matter of fact. There is, in my view, nothing exceptional in the respondent's personal circumstances. So far as the circumstances of the offending might be thought to be exceptional, excluding the limited degree of penetration (a relevant consideration but not one which carries significant weight given the circumstances of the offending as a whole) the aspects of the offending that take it outside the usual run of sexual offences are aggravating rather than mitigatory.
[86] Lakay v The State of Western Australia [41].
It is necessary to balance these matters against the available matters of mitigation. The respondent entered an early plea of guilty, was remorseful and acknowledged the harm he had inflicted on the victim. He had unilaterally taken steps towards rehabilitation, showing positive changes in attitude, but there was more to be done. The respondent was assessed as being at a low risk of reoffending. The sentencing judge, perhaps over generously but within the bounds of his discretion, afforded some of the benefit of youth to the respondent.
In all the circumstances personal deterrence was a lesser sentencing factor. But general deterrence and denunciation of the respondent's offending was an important sentencing consideration in this particular case. The protection of vulnerable women - particularly vulnerable sleeping women - required a sentence that made it clear to the community that engaging in sexual activity with a woman while she was asleep is completely unacceptable - and all the more so where the offending was aggravated by recording graphic images and videos of the victim's body and the non-consensual sexual activity to which the victim is subjected (the respondent having positioned the victim's body and himself so as better to do so).
I have considered the imposition of the conditionally suspended term of imprisonment for count 3. It is necessary to do so in the context of the maximum penalties for the offence, the circumstances of the offending, the place where the respondent's offending occupies on the scale of seriousness, the standards of sentencing customarily observed, the respondent's personal circumstances and all other mitigating factors. Those matters have been addressed in the earlier sections of these reasons.
Having done so, standing back and revisiting together all those matters as addressed earlier in these reasons, I consider it was not reasonably open to the sentencing judge not to be satisfied that it was not appropriate to impose conditionally suspended imprisonment. In all the circumstances, the nature and circumstances of the offence were so serious as to necessarily make anything other than an immediate term of imprisonment an inappropriate sentencing option. On the facts, and applying the relevant sentencing principles, the only open sentencing disposition in relation to count 3 was that the sentencing judge should have been positively satisfied that it was not appropriate to suspend or conditionally suspend the term of imprisonment. The sentence was unreasonable or plainly unjust in this respect.
Ground 1 has been made out in relation to count 3. As the only appropriate sentence for count 3 was a term of immediate imprisonment, the terms of imprisonment on the other counts could not be suspended.[87]

Ground 2: Are the lengths of the terms of imprisonment for counts 3 and 4 manifestly inadequate (ground 2)?

[87] Sentencing Act s 76(3)(b), s 81(3)(b).

Count 3 is the most serious of the respondent's offences. It was an offence of aggravated sexual penetration without consent. Initially it is convenient to consider ground 2 by reference to count 3. For reasons that will become apparent it will not be necessary to address ground 2 so far as it applies to count 4.
The State contended that the sentence of 18 months' imprisonment in relation to count 3 was manifestly inadequate as to length by reference to the same factors that were relevant to the consideration of ground 1. The State also relied on the customary sentencing standards revealed by the cases of Miles v The State of Western Australia, The State of Western Australia v Vartolo and Taylor v The State of Western Australia. The relevant sentences in those cases, for offences of sexual penetration without consent contrary to s 325 of the Criminal Code (by the digital penetration of a sleeping victim), were each 2 years' immediate imprisonment. The State contended that, ordinarily as a matter of fact, sexual offending in the form of digital penetration of a sleeping victim was met with a substantial term of immediate imprisonment.
The sentence of 18 months' imprisonment was said to be manifestly inadequate and fail to properly reflect the serious circumstances of the respondent's offending.

The sentencing judge imposed a term of 18 months' imprisonment for count 3 in the context of a maximum penalty of 20 years' imprisonment. There were no directly comparable cases by which to gauge customary sentencing standards. However, the s 325 digital sexual penetration cases provide a reference point of sorts - albeit one that has to be considered carefully given: (1) the limited degree of penetration in the present case (which, although being less than the usual case, was nonetheless a grave intrusion on T's bodily autonomy); (2) the present offending, under s 326, attracts a substantially higher maximum penalty (20 years' imprisonment rather than 14 years' imprisonment); and (3) that none of the broadly comparable cases involved a circumstance of aggravation - the respondent's filming of his actions being the aspect of his offending which bore most seriously on the criminality involved in the offending conduct.
Accepting, for these reasons, that the s 325 cases are of limited guidance as a yardstick, they remain of some usefulness in considering the question of manifest inadequacy by reference to the maximum sentence for the offence, the place which the offending conduct occupies on the scale of seriousness of offences of that kind and the personal circumstances of the offender.
In my opinion, taking into account the matters summarised at [150] ‑ [152] above, and giving full weight to the mitigating factors and features of the offending in the respondent's favour, the sentence of 18 months' imprisonment for count 3 is so low that error is to be implied. In short, a sentence of 18 months' imprisonment is manifestly inadequate. It is a sentence that might have been open - tending to the lower end of the appropriate available range - had the offending simply been an offence contrary to s 325 without the circumstance of aggravation that was present in the respondent's offending. But the sentence is manifestly inadequate when consideration is given to the relevant circumstance of aggravation as constituted by the respondent's filming of the offending. The disrespectful degradation and humiliation of T for the respondent's sexual gratification was equally as serious as the respondent's physical intrusion and demanded a punishment that recognises the seriousness of the offending and will have the requisite general deterrent effect.
The sentence imposed on count 3 is not commensurate with the seriousness of the respondent's offending after giving due allowance for all relevant mitigating factors and is, in my respectful view, appreciably less than any sentence that was open on the proper exercise of the sentencing judge's discretion. The sentencing outcome is unreasonable and plainly unjust. Ground 2 has been made out in relation to count 3.
Given that I would uphold ground 1, and ground 2 so far as it applies to count 3, I consider it unnecessary to determine ground 3. Subject to the question of the residual discretion, to which I now turn, the appeal must be allowed, and the respondent resentenced, in any event.
Moreover, where an appellate court concludes that the sentencing judge's discretion miscarried in respect of one component of a sentence, including, as in the present case, one of the individual sentences forming part of the total effective sentence, the whole of the sentence imposed by the sentencing judge must be set aside, and the offender resentenced.[88] Consequently, it is necessary for this court to resentence the respondent in respect of all counts and to fix what it considers to be an appropriate total effective sentence.
[88] The State of Western Australia v Krakouer [2020] WASCA 133 [62].
That being so, it is unnecessary to deal with the ground 2 so far as it applies to count 4.

Residual discretion

This court has a residual discretion to dismiss a State appeal even though a ground or grounds of appeal have been established and a sentence is erroneously lenient.[89] As mentioned, it is for the State to demonstrate that the residual discretion should not be invoked. In post-appeal hearing submissions the respondent raised the residual discretion and contended that if one or more of the grounds of appeal were established this court should exercise the residual discretion to dismiss the State's appeal.
[89] Munda v The State of Western Australia [2013] HCA 38; (2013) 249 CLR 600 [65] - [67], [73].
The respondent referred to the following observations of the majority in Munda v The State of Western Australia as to circumstances, in addition to considerations of parity, which might create injustice if a State appeal against sentence is allowed:
Those circumstances … include 'delay in the hearing and determination of the appeal, the imminent or past occurrence of the respondent's release on parole or unconditionally, and the effect of resentencing on progress towards the respondent's rehabilitation'. The conduct of the Crown might also be relevant, for example, if the Crown were to seek on appeal a higher sentence than it had successfully sought at first instance.[90]
[90] Munda v The State of Western Australia [72].
In the post-appeal hearing submissions, counsel for the respondent contended that the 26 October 2020 report of the consultant psychologist demonstrated the positive steps the respondent had taken and the progress he had made to address and rectify the conduct that led to his criminal offending. That was said to be further demonstrated by the respondent's enrolment in the sexual rehabilitation course which he was about to commence. On behalf of the respondent it was contended that, while there was a need for the Court of Appeal to ensure that proper sentencing standards are adopted and maintained, the facts of this matter ought to result in the appeal being dismissed in exercise of the court's residual discretion.[91]
[91] Respondent's post-appeal hearing submissions pars 11 - 13.
There was no suggestion that the State's conduct impacted on the residual discretion. Nor could there be. The State had proceeded timeously, obtaining an urgent appeal order, and had always sought a term of immediate imprisonment. The matter for the State to negate was the effect that resentencing might have on the progress towards the respondent's rehabilitation given the steps that had been taken and the progress that has been made post-sentence.
In its post-appeal hearing responsive submissions, the State submitted that:
1.The rehabilitation of an offender is of lesser significance in the exercise of the sentencing discretion for sexual offending of this nature. The dominant sentencing considerations for offences of sexual penetration without consent are punishment of the offender and specific and general deterrence.[92]
2.Rehabilitation does not assume greater significance than the primary sentencing considerations at the residual discretion stage (here referring to The State of Western Australia v Baldini[93] and The State of Western Australia v Doyle[94]).
[92] Thorn v The State of Western Australia [2008] WASCA 36 [49]; PAS v The State of Western Australia [2009] WASCA 210 [110].
[93] The State of Western Australia v Baldini [2015] WASCA 39 [45].
[94] The State of Western Australia v Doyle [2017] WASCA 207 [46].
The State also pointed out, correctly, that the sentencing judge identified that that primary issue that the appellant needed to address in order to achieve rehabilitation was his attitude towards women.[95] In the State's submission it was significant that none of the additional evidence before the court identified whether the respondent's engagement with the consultant psychologist addressed this key issue. The State contended that the matters deposed to did not establish that the respondent had made significant progress in his rehabilitation in the key area as identified by the sentencing judge.
[95] ts 69.
The State of Western Australia v Baldini concerned a State appeal against the imposition of conditional suspended terms of imprisonment in relation to, among other things, counts of selling MDMA and being in possession of MDMA with intent to sell or supply contrary to s 6(1)(c) and s 6(1)(a) of the Misuse of Drugs Act 1981 (WA). The court was satisfied that the sentences were manifestly inadequate as to type. The offender nevertheless submitted that the appeal should be dismissed in the exercise of the residual discretion. Reliance was placed on the effect on the offender's progress of rehabilitation before and after sentence, there being evidence of the offender's continued efforts at rehabilitation after sentence.
McLure P (Buss and Mazza JJA agreeing) stated:
I have had regard to the respondent's positive steps towards rehabilitation, both before and after sentencing. Applying the long accepted sentencing principles that apply to drug dealing offences, the fine and the conditional suspended terms of imprisonment imposed on the respondent are manifestly inadequate. Those sentencing principles are not abandoned when it comes to the residual discretion stage. That is, rehabilitation does not then displace general deterrence as the primary sentencing consideration. Indeed, rehabilitation is not the primary sentencing consideration even when determining whether or not to suspend a term of imprisonment for any offences.[96] (emphasis added)
[96] The State of Western Australia v Baldini [45].
Accordingly, in considering the exercise of the residual discretion, her Honour had regard not only to the offender's steps towards rehabilitation, but also to the accepted sentencing principles that applied to the type of offence that had been committed. In the context of the type of offending in that case - dealing in illicit and prohibited drugs - significant weight is given to general deterrence with the consequence that mitigating circumstances personal to the offender are accorded less weight. Thus general deterrence was a relevant factor in considering the exercise of the residual discretion.
So too, in the circumstances of the respondent's offending, punishment and general deterrence are relevant factors in considering the exercise of the residual discretion.
The State goes too far in submitting that the post-hearing evidence does not establish that the respondent has made significant progress in his rehabilitation in the area identified by the primary judge. The respondent has identified and commenced a sexual offending rehabilitation program and articulated as one of his goals that he engage with the program. The respondent has shown remorse and expressed a desire to apologise to his victim. Significantly, the consultant psychologist has observed that the respondent has engaged well with his treatment program and has made significant gains with various aspects of his life. The consultant psychologist's 23 July 2020 report identified that one of the things being addressed in the respondent's sessions was the development of a healthier and more positive attitude towards women. Reading the latest report together with the earlier reports of the consultant psychologist, I infer that the respondent has made progress and that such progress is significant. There is, however, no evidence - direct or otherwise - to suggest that upholding the appeal will have an adverse effect on the respondent's further progress towards rehabilitation.
Against invoking the residual discretion, the conditionally suspended sentence of imprisonment for count 3 is very clearly inadequate. So too the length of the sentence that was imposed for count 3 is very clearly inadequate. Punishment of the offender and general deterrence are accepted to be two of the primary sentencing considerations when sentencing for offences of the type committed by the respondent. The sentence imposed by the sentencing judge was substantially more lenient than the sentence open on a proper exercise of the sentencing discretion. Appellable error has been very clearly established. Appellate intervention is required to impose a sentence which properly reflects the seriousness of the offence so as to ensure that proper standards of sentencing are observed for an offence of the kind that the respondent committed.
I take into account the respondent's continued steps and progress towards rehabilitation both pre and post-sentence as have been referred to previously. They are, in my view, to be given substantial weight. But they must be weighed in the balance with the other factors that I have mentioned. Weighing all the relevant factors in the balance I am satisfied that the State has negated the reason relied on as to why the court should exercise its discretion to decline to allow the appeal. In all the circumstances rehabilitation does not justify the dismissal of the appeal by reason of the residual discretion. The appeal should be allowed and the respondent resentenced.

Resentencing

This court has the materials necessary to resentence the respondent.
In addition to the materials available to the sentencing judge, the respondent relied on his solicitor's affidavit affirmed 8 October 2020 (see [82] above). The affidavit should have been sworn by the respondent rather than his solicitor. However, in circumstances where the State did not challenge the credibility or reliability of what was adduced by way of evidence on the basis of information and belief, it may be accepted at face value.
The respondent's post-appeal hearing submissions did not contend that the respondent's affidavit affirmed 27 October 2020 (see [91] ‑ [94] above) should be considered on resentencing. Plainly, however, it is to be taken into account. It is to the respondent's credit that he has continued to attend for treatment with the consultant psychologist and has made arrangements for further sessions and to undertake a sexual rehabilitation program. So too it is to the respondent's credit that he has ceased to use cannabis and has shown further insight and remorse as to his offending conduct. It is also relevant that the respondent has obtained meaningful employment, has been engaging with his treatment and - in the view of the consulting psychologist - had made significant gains in many aspects of his life.
I have had regard to the additional materials comprised in the respondent's solicitor's affidavit affirmed 8 October 2020 and the respondent's affidavit affirmed 27 October 2020. I have also had regard to and take into account that, while subject to the conditional suspended terms of imprisonment, the respondent has complied with the various conditions to which he is subject. I view that as a mitigating factor. But by far the more significant post-sentence mitigating factors are those referred to in the affidavits affirmed 8 and 27 October 2020.
Otherwise all of the background, including the maximum penalties, the objective facts and circumstances of the offending, the vulnerability of T and the impact of the offending on her, the customary sentencing practices for these kind of offences, the respondent's personal circumstances and all relevant sentencing factors and principles, has already been described and does not require repetition.
Three matters ought to be specifically mentioned. First, the State did not complain about the length of the individual sentences for counts 1 and 2. Putting aside the type of sentence, I view those sentences as being within the range of a sound exercise by the sentencing judge of his discretion. I would not interfere with the length of the sentences imposed for those offences. Second, the sentencing judge afforded the respondent a discount of 22% pursuant to s 9AA of the Sentencing Act. I see no reason to depart from that assessment. The pleas of guilty were made at the first reasonable opportunity. Third, consistent with my view in upholding ground 1, I am positively satisfied that it is not appropriate to impose some form of suspended imprisonment.
In my view, the following sentences are commensurate with the seriousness of the offences committed by the respondent having regard to all relevant sentencing principles and factors (and taking into account the post-sentencing actions and gains made by the respondent):
1.Count 1 - 12 months' immediate imprisonment.
2.Count 2 - 12 months' immediate imprisonment.
3.Count 3 - 2 years 6 months' immediate imprisonment.
4.Count 4 - 1 year 10 months' immediate imprisonment.
In terms of concurrency, cumulacy and totality, although the State sought a degree of accumulation before the sentencing judge, his Honour ordered that all the sentences run concurrently. While there were four separate and distinct acts, the offending took place sequentially over a relatively short period of time following the victim falling asleep. To ensure that the total effective sentence bears a proper relationship to the respondent's overall offending, and having regard to what I have said as to personal deterrence and other mitigating factors, I consider that the sentences on counts 1, 2 and 4 should be served concurrently with each other and the sentence on count 3. Having regard to all the relevant sentencing factors, a total effective sentence of 2 years 6 months' immediate imprisonment is all that is required to meet the recognised sentencing objectives.
The respondent should be eligible for parole.

Orders

I would make orders as follows:
1.Leave is granted to the respondent:
(a)to adduce and rely on the additional evidence comprised in the affidavit of A M Taylor affirmed 8 October 2020;
(b)to reopen so as:
(i)to adduce and rely on the additional evidence comprised in the affidavit of the respondent affirmed 27 October 2020; and
(ii)to make the submissions comprised in the respondent's further submissions dated 27 October 2020.
2.The appeal is allowed.
3.The sentences imposed by Levy DCJ on 31 July 2020 are set aside.
4.The respondent is resentenced on the counts in indictment IND 2137 of 2019 as follows:
(a)on count 1 - 12 months' immediate imprisonment;
(b)on count 2 - 12 months' immediate imprisonment;
(c)on count 3 - 2 years 6 months' immediate imprisonment;
(d)on count 4 - 1 year 10 months' immediate imprisonment.
5.The new sentences for counts 1, 2 and 4 are to be served concurrently with each other and the new sentence for count 3 so as to provide for a new total effective sentence of 2 years 6 months' immediate imprisonment.
6. The respondent is eligible for parole.
The respondent has not spent any time in custody for his offences. Accordingly, there is no need for the sentence to be backdated.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
OE
Associate to the Honourable Justice Vaughan
9 NOVEMBER 2020