Thong v The State of Western Australia

In the Supreme Court of Western Australia, the appellant was convicted after a trial of one count of sexual penetration without consent and one count of aggravated sexual penetration without consent. The respondent, the State of Western Australia, brought the appeal against both the conviction and the sentence. The appellant challenged the verdict, asserting that it was unreasonable and could not be supported by the evidence, particularly concerning the DNA evidence found on the complainant's clothes. The appellant also argued that the trial judge should have directed the jury to be satisfied beyond reasonable doubt that the DNA was directly transferred from the appellant. Additionally, the appellant contested the severity of the sentence, claiming it was manifestly excessive and infringed the first limb of the totality principle.

The court examined the sufficiency of the evidence and whether it supported the verdict. It considered the weight and significance of the DNA evidence and whether the trial judge's directions to the jury were adequate. The court also assessed the proportionality of the sentence, particularly in light of the appellant's criminal history and the principles of sentencing. The court held that the jury's verdict was open to them and was supported by the evidence, including the DNA evidence, and that the trial judge's directions were appropriate. The court further found that the sentence, while severe, was not manifestly excessive and did not infringe the first limb of the totality principle.

Ultimately, the court dismissed both the appeal against conviction and the appeal against sentence. The appellant's convictions for sexual penetration without consent and aggravated sexual penetration without consent were upheld, as was the sentence of 8 years and 6 months' imprisonment. The court found that the evidence, including the DNA evidence, was sufficient to support the jury's verdict and that the sentence was proportionate to the crimes committed.