Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA

Criminal law and sentencing - Offences of sexual penetration of a child aged between 13 and 16 years - Pleas of guilty - Sentencing Act s 9AA - Whether judge required to state head sentence before discounts for plea of guilty and other mitigating factors - Whether judge otherwise erred in application of s 9AA - Whether total effective sentence of 5 years 6 months infringed the first limb of the totality principle

Sentencing Act 1995 (WA), s 9AA

Abraham v The State of Western Australia [2014] WASCA 151; (2014) 244 A Crim R 1

Australian Competition and Consumer Commission v Reckitt Benckiser (Australia) Pty Ltd [2016] FCAFC 181; (2016) 340 ALR 25

Barbaro v The Queen [2014] HCA 2; (2014) 253 CLR 58

Carr v The State of Western Australia [2007] HCA 47; (2007) 232 CLR 138

Certain Lloyd's Underwriters v Cross [2012] HCA 56; (2012) 248 CLR 378

Chadd v The State of Western Australia [2013] WASCA 99

Chan v The Queen (1989) 38 A Crim R 337

Chivers v The State of Western Australia [2005] WASCA 97

CIC Insurance Ltd v Bankstown Football Club Ltd [1997] HCA 2; (1997) 187 CLR 384

City of Kwinana v Lamont [2014] WASCA 112

Director General of Department of Transport v McKenzie [2016] WASCA 147

D'Rozario v The State of Western Australia [2015] WASCA 171

Filippou v The Queen [2015] HCA 29; (2015) 256 CLR 47

Fullgrabe v The State of Western Australia [2006] WASCA 138

Gavenlock v The State of Western Australia [2014] WASCA 36

Giglia v The State of Western Australia [2010] WASCA 9

Hili v The Queen [2010] HCA 45; (2010) 242 CLR 520

JAF v The State of Western Australia [2008] WASCA 231; (2008) 190 A Crim R 124

KAT v The State of Western Australia [2017] WASCA 11

Lacey v The Attorney-General (Qld) [2011] HCA 10; (2011) 242 CLR 573

LFG v The State of Western Australia [2015] WASCA 88; (2015) 48 WAR 178

Liberato v The Queen [1985] HCA 66; (1985) 159 CLR 507

LJH v The State of Western Australia [2016] WASCA 155

M v The Queen [1994] HCA 64; (1993) 181 CLR 487

Macedonian Orthodox Community Church St Petka Inc v His Eminence Petar The Diocesan Bishop of Macedonian Orthodox Diocese of Australia and New Zealand [2008] HCA 42; (2008) 237 CLR 66

Miles v The Queen (1997) 17 WAR 518

Moody v French [2008] WASCA 67; (2008) 36 WAR 393

MWJ v The Queen [2005] HCA 74; (2005) 80 ALJR 329

Network Ten Pty Ltd v TCN Channel Nine Pty Ltd [2004] HCA 14; (2004) 218 CLR 273

Palgo Holdings Pty Ltd v Gowans [2005] HCA 28; (2005) 221 CLR 249

Park Trent Properties Group Pty Ltd v Australian Securities and Investments Commission [2016] NSWCA 298; (2016) 116 ACSR 473

R v Baldock [2010] WASCA 170; (2010) 269 ALR 674

Roffey v The State of Western Australia [2007] WASCA 246

Rossi v The State of Western Australia [2014] WASCA 189; (2014) 47 WAR 508

Seeto v The State of Western Australia [2014] WASCA 221; (2014) 246 A Crim R 386

The Queen v Kilic [2016] HCA 48; (2016) 91 ALJR 131

The State of Western Australia v Munda [2012] WASCA 164; (2012) 43 WAR 137

The State of Western Australia v SJH [2010] WASCA 40; (2010) 200 A Crim R 228

Wells v The State of Western Australia [2017] WASCA 27

1 The appellant appeals against the sentences imposed on him after he was convicted, on his pleas of guilty, of three counts of sexual penetration of a child between the ages of 13 and 16 years and one count of attempted sexual penetration of a child between the ages of 13 and 16 years. The sentencing judge imposed a total effective sentence of 5 years and 6 months' immediate imprisonment.

2 The appellant appeals on the grounds that the sentencing judge erred in fact by finding that the complainant did not consent (ground 1), by making errors of law in the exercise of discretion under s 9AA of the Sentencing Act 1995 (WA) (grounds 2 - 4), and by imposing an aggregate sentence that infringed the first limb of the totality principle (ground 5). Leave to appeal has been granted on ground 5. The question of leave on the other grounds was referred to the hearing of the appeal.

3 For the reasons that follow, we would dismiss the appeal.

4 The appellant was originally charged with four counts of aggravated sexual penetration without consent contrary to s 326 of the Criminal Code (WA) (the Code). Following negotiations between the State and the defence, the appellant advised that he would plead guilty to three counts of sexual penetration of a child between the ages of 13 and 16 years and to one count of attempted sexual penetration of a child between the ages of 13 and 16 years, contrary to s 321(2) of the Code. The letter advised that there would need to be a trial of issues about the question of whether the complainant had consented to the acts the subject of the offences to which he intended pleading guilty.

5 On 17 November 2015, the appellant pleaded guilty to three counts of sexual penetration of a child between the ages of 13 and 16 years and to one count of attempted sexual penetration of a child between the ages of 13 and 16 years. That followed the filing of a notice of discontinuance on the original indictment and the filing of a new indictment.

6 The prosecution stated the material facts to the court in terms which said that the acts occurred without consent. Counsel for the appellant confirmed that the appellant did not accept that there was an absence of consent or any force or violence used.

7 Following short openings by both counsel, a trial of issues occurred. In the course of the trial, the State led evidence from the complainant, the complainant's mother, two friends of the complainant, and the investigating officer. The complainant's mother gave evidence that the complainant was in a distressed condition following the events the subject of count 1. The complainant's friends each gave evidence of conversations that they had with the complainant regarding the events the subject of count 1. The State also read into evidence a witness statement prepared by a medical practitioner. Various exhibits were also tendered, including Facebook exchanges between the appellant and the complainant in 2010 and in subsequent years.

8 The appellant gave evidence. The appellant also called a number of other witnesses, most of whom gave evidence of interactions between the appellant and the complainant that took place at various times after the events the subject of the indictment.

9 At the conclusion of the hearing, the judge reserved her decision. On 27 November 2015, the sentencing judge gave reasons for concluding that she was satisfied beyond reasonable doubt that the complainant had not consented to any of the sexual acts the subject of the offences.

10 The sentencing judge subsequently heard sentencing submissions from counsel on 26 February 2016. The sentencing judge imposed a total effective sentence of 5 years 6 months' immediate imprisonment.

11 As ground 1 attacks the judge's factual finding that there was no consent, we will outline her Honour's reasons for coming to that conclusion.

12 The judge's findings on the trial of issues may be summarised as follows.

13 Her Honour correctly observed that because consent is not an element, but an absence of consent would be an aggravating factor, the onus is on the State to establish beyond reasonable doubt that the complainant did not consent to the sexual conduct the subject of the offences.[1]

14 The primary judge gave an overview of the nature and subject matter of the evidence of all the witnesses.[2] Her Honour noted that there was considerable divergence in the evidence of the complainant and the appellant regarding not only the issue of consent but also the details and physical dynamics of the sexual activity between them.[3]

15 Her Honour then outlined the evidence of the complainant and the appellant in relation to the sexual acts the subject of the charges. The primary judge summarised the complainant's evidence as to count 1 as follows:

(1) the appellant surprised the complainant by walking in on her in the ladies showers of a surf lifesaving club;

(2) she attempted to cover herself but the appellant took his clothes off and joined her in the shower. He then began to kiss her;

(3) when he began to show signs of escalating the sexual conduct she began to physically resist. However, the appellant ignored her resistance. Using his body weight and his leg to move her legs apart, he had vaginal intercourse with her while facing her and pressing her against the wall;

(4) as a result of this she bled. It occurred quickly and she was shocked and confused.[4]

16 The offender's account of count 1 was in summary:

(1) At his invitation, the complainant went with him into the male showers of the surf club. They took their clothes off and kissed.

(2) The complainant then, without prompting, performed oral sex on him. Then, again without prompting, she assumed a position that enabled him to have vaginal intercourse with her from behind, which then occurred.[5]

17 Both the appellant and the complainant said that after this the appellant took the complainant to a train station where she called her mother to collect her.

18 The judge summarised the complainant's evidence as to counts 2, 3 and 4 as follows:

(1) Confused by the events of the preceding evening, the complainant went to City Beach where the offender was working as a beach inspector so she could discuss matters with him.

(2) He invited her to join him on the patrol vehicle. They drove on the beach to Swanbourne Beach.

(3) The appellant suggested a nude swim. She agreed. They disrobed and went swimming.

(4) When the appellant began to kiss the complainant in the water, she responded. When he tried to escalate the sexual contact, she said no. She went back to the beach and put on her bikini.

(5) The appellant also returned to the beach. He made her lie on her stomach and took off her bikini bottom. He then lay on top of her and attempted to have vaginal intercourse with her. She resisted both verbally and physically, saying she was sore from what had occurred in the shower the day before.[6]

(6) The appellant then had anal intercourse with the complainant, continuing until some people came to the beach.[7] The complainant found this painful and humiliating.

(7) The two of them returned to the surf club. In the storage area the appellant pushed the complainant down onto her knees, grabbed her behind the head, pulled his shorts down and pushed his penis into her mouth.[8] The appellant's hands were around her neck and the complainant had trouble breathing.

19 The appellant's account was that counts 2, 3 and 4 all took place at Swanbourne Beach. After a nude swim, they began to make out. Without prompting, the complainant then began to perform oral sex on him and then, again without prompting, she got onto her hands and knees and the appellant had vaginal intercourse with her from behind. The complainant actively participated in the intercourse. He noticed that the complainant was bleeding and stopped having vaginal intercourse. He then proceeded to have anal intercourse with her after obtaining her permission. The appellant denied that they went to the surf club at all on that day.[9]

20 Her Honour turned to some context in order to assist in the evaluation of the evidence of the complainant and the appellant.

21 The complainant joined the surf club in early 2009, participating later that year in a bronze medallion course of which the appellant was the instructor. At that stage the complainant was aged 15 and the appellant 21. He was a long-standing and well regarded member of the surf club. The sentencing judge outlined the conflicting evidence of the appellant and the complainant about what had occurred on 27 February 2010, the night before the act of intercourse the subject of count 1.

22 The judge noted that the complainant did not make a complaint to anyone about the events the subject of the charges. There was also uncontested evidence that when she was picked up by her mother at the train station the complainant was distressed.

23 The judge turned to the subsequent conduct, including the following:

(1) The complainant and the appellant continued to see each other and at times would hold hands and be affectionate in public.

(2) The complainant would truant school or lie to her mother to enable contact with the appellant.

(3) The two continued to engage in sexual activity of a 'BDSM'[10] kind, which the appellant admitted he introduced early in the relationship. When engaged in BDSM the complainant would refer to the offender as Larry and he would call her Jessica, as in Jessica Rabbit.

(4) It was common ground that the sexual relationship ended but a platonic relationship persisted until September 2013, as evidenced by Facebook exchanges that were exhibit 4.[11]

24 The primary judge summarised the complainant's perspective of her relationship with the offender as follows:

(a) She liked the person the appellant was in public, the person she referred to as Alex.

(b) She did not like the person the appellant was in private, the person she referred to as Larry.

(c) She was dominated by the appellant and had no voice in their relationship, feeling compelled to comply and act in accordance with his expectations and wishes.

(d) Their relationship was centred almost entirely on sexual activities where she was treated as a sexual object or slave.

(e) She coped with this dichotomy by being Jessica. Jessica behaved and acted as instructed by the appellant.

(f) She maintained a relationship with the appellant even after the sexual contact ceased because the compulsion to comply with his wishes persisted for a considerable time, and she wanted to be able to put the bad aspects of the relationship behind her and keep the good.[12]

25 The judge summarised the appellant's perspective of the relationship as follows:

(b) She came up with the pet names Larry and Jessica.

(c) They discussed their sexual experimentations and the complainant agreed to them all before they engaged in them.

(d) Within one or two weeks of commencing their BDSM activities, the complainant took on the dominant role which persisted thereafter.

(e) They had a genuine relationship of equals involving doing regular couple activities.

(f) He remained on friendly terms with her even after the sexual contact ceased.[13]

26 The judge concluded that the evidence of the witnesses who saw the interactions between the complainant and the appellant was consistent with both views of the relationship, as were the Facebook exchanges the subject of exhibit 4.[14] The judge referred to some specific messages in the Facebook exchanges.[15]

27 The judge observed that human relationships are complex and at times capricious, and that the conduct of people in public does not always accurately reflect what is occurring in private. Consequently, the judge said she did not find the evidence of the witnesses who saw the interactions between the appellant and the complainant, and the Facebook messages, of assistance in determining whether the complainant consented to the sexual contact the subject of the indictment.[16]

28 The primary judge correctly directed herself in accordance with the principles in Liberato.[17]

29 She also directed herself as to the delay in the complainant's complaint to the authorities and the forensic disadvantage to the appellant as a consequence.[18]

30 The judge found the appellant's evidence to be very rehearsed and his account of events to be implausible. Consequently, she put that evidence to one side and turned to consider the complainant's evidence.

31 The judge found the complainant to be a very credible witness who gave her evidence in a forthright and frank way.[19] The judge observed that the complainant readily made appropriate concessions even when they did not portray her in the most favourable light. The judge gave examples that the complainant agreed she had lied to her mother and truanted school to see the offender and admitted that she had been the one to initiate contact with the appellant on the day of the events the subject of counts 2 to 4.[20]

32 The judge observed there were a number of occasions when the complainant gave a spontaneous expression of disbelief, which fortified her view of the appellant's credibility, and provided examples of this.

33 Her Honour found that the complainant's account of events is consistent with her then age, level of sexual experience and worldliness and with the stress observed by the complainant's mother.[21] The judge found that the level of distress exhibited by the complainant after count 1 occurred was not consistent with regret or loss of a childhood fantasy. At the dinner table, a tear rolled down the complainant's cheek. She left the table and went to her room. The complainant's mother followed her and found the complainant crying.[22]

34 The judge directed herself that the complainant's failure to complain does not necessarily indicate that the complainant's account was false, and that there may be good reasons why she did not complain. The judge observed that in this case there are good reasons that readily come to mind, including the complainant's perception that her mother was angry with her, the fact she did not immediately leave the showers when the offender came in and the confusion or shock that this man, well respected and liked, behaved in this way.

35 The judge observed that she was fortified by the fact that when the complainant told her friends RW and ER about losing her virginity, their lasting impression was that she was not happy.[23]

36 The judge referred to the fact that RW's evidence was that the complainant told her that when she lost her virginity the intercourse had occurred from behind. The judge stated that 'having regard to the totality of the evidence, given the passage of time and the fact that this was not the only occasion when [RW] spoke to the complainant about her sexual interactions with the [appellant], I do not accept [RW's] evidence on this point'.[24]

37 The judge considered RW's evidence that the complainant told her that losing her virginity was not a happy event but a disappointing event to be significant.[25]

38 The judge also found that the complainant's account was consistent with the admissions made by the offender in the pretext call, namely that by his silence or words he accepted:

(1) the complainant's characterisation of what he did to her as torture;

(3) that he sexually objectified her, used her and manipulated her;

(4) that he did not treat her in any sort of respectful way;

(5) that he knew absolutely that she did not feel she was able to say these things to him; and

(6) that he has not looked back fondly on his conduct saying 'it's not something I'm proud of'.

39 The judge concluded that she had no doubt that to the complainant the appellant would have appeared as a sophisticated, confident and appealing young man, well liked and respected at the surf club and that, given her youth and inexperience, she was vulnerable. The appellant focused on fulfilling his own needs and wants and had no regard for the complainant's wishes or desires and ignored all signs of resistance.

40 The judge found that the sexual contact occurred as described by the complainant and that she was satisfied beyond reasonable doubt that the sexual contact was not consensual.[26]

41 Ground 1 alleges that the sentencing judge erred in fact in finding that the complainant did not consent to the sexual acts the subject of the offences. It is convenient to deal with that ground before turning to the grounds relating to the discount under s 9AA and to the total effective sentence.

42 Given the nature of ground 1, we have reviewed the entire record of the trial of issues. We outline the evidence as follows.

44 She joined the surf club in 2009. Later, she undertook a bronze medallion course which was conducted by the appellant.[27]

45 On 27 February 2010 (the day before the events the subject of count 1), she received a telephone call from the appellant while she was at a party. He offered to pick her up to go and get some alcohol for the party. When the car was stopped at a set of traffic lights, the appellant leaned over and kissed her on the mouth. She froze.[28]

46 Soon after that he pulled over into the surf club car park. He 'insisted' that she sit in the back with him and talk, which she did. He kept trying to kiss her and ask her personal questions such as whether she had any sexual contact or was a virgin.[29] She became increasingly uncomfortable and asked him to take her back to the party, which he did.

47 The appellant's version of what happened the night before the events the subject of count 1 was put to the complainant in cross-examination and rejected by her.[30]

48 The next day she was rostered on patrol at the surf club. The appellant came down to assist. At about 5.30 pm she assisted in packing up the patrol. When she finished doing so, she realised she had dropped her phone on the beach. She borrowed a friend's phone to call her phone. Someone answered and she arranged to meet them in the car park. By the time she had finished doing that she thought everyone had gone home.[31]

(1) She went to the female changing room to have a shower. While she was showering the appellant came in and surprised her. She tried to cover herself up. He laughed and said not to worry about covering herself. He undressed and joined her in the shower.[32]

(2) Once in the shower, he started to kiss the complainant. She did not really respond because she was in shock. He pushed her up against the wall, held her there and started kissing her more passionately. He continued kissing her and pushing her up against the wall. She felt his penis stiffening against her. She tried to push him away using her hips. He had her pressed against the wall using his bodyweight. Then the appellant used one leg to move the complainant's leg and pushed his penis inside her vagina.[33]

(3) While he was penetrating her she could feel the taps hitting her in the back and could feel him pushing inside her.[34]

(4) She was in shock. She shut down and was unable to respond. The penetration continued for a few minutes until he stopped.[35]

50 Afterwards, they got dressed. The appellant drove the complainant to the train station at Glendalough so her mother could collect her.[36]

51 The appellant's version of the events the subject of count 1 was put to the complainant. She denied that they were showering together and kissing and that she had taken her bathers off and performed oral sex on the appellant. Further, she denied that she turned around and bent over so as to allow the appellant to penetrate her from behind.[37] The following exchange occurred:

And he then turned you around and asked you to bend over, is that correct?---That is incorrect.

And then he inserted his penis into your vagina from behind, is that correct?---No. No, I do not know where all this is coming from.

I've heard your denial. I have to keep putting these things to you?---Okay.

He's saying that these things happened, You say no?---Okay.

But we also say yes, they did, but you did not object in any way to sex that he was undertaking with you?---I did not verbally object but I physically - I pushed him away and moved with my - my body.

Now, just to be clear, you're talking about the evidence you gave earlier as opposed to the scenario that I'm putting to you?---The scenario that you're putting to me did not occur so I cannot relate to it.

Right. Now, he says that none of the things happened the way you said, not in the female toilets, not pressed up against the - with your back against the taps, nothing like that, is that correct?--- I - I reject his - his statement.

Did your back get marked or bruised as a result of him forcing you onto the taps?---There were no visible bruises but I could feel it.

When you say you could feel it, you could feel it at the time?---And afterwards.

So it was painful?---Yes, it was.

Was it pain - was it simply painful to touch or was it painful to carry, to - to bear just when you're walking around?---It was painful when I would bend over and move my back.

How long was it painful for?---A few days.

So he must have been quite rough with you, on your evidence, is that correct?---That's correct. He had to put some force behind inserting himself inside of me because the shower was on. Obviously it meant that there was no lubrication. I was not turned on. I was just a virgin and I was completely dry so he had to push himself inside of me. So he had to use his body weight with some force.[38]

52 When asked whether she had told her mother about what had happened when she got home, the complainant said she did not tell her mother because she was scared of how she may react and that she had not yet come to terms with what had happened.[39]

53 The complainant's evidence as to counts 2 and 3 was as follows:

(1) The next day the complainant wanted to speak to the appellant. That was because she wanted to understand what had happened and was confused and hurt.[40]

(2) The appellant asked her to meet him at City Beach where he had a shift as a beach inspector. The appellant met her out the front of the City Beach surf club in a surf club truck. He told her she could ride with him while he carried out his beach inspection duties. He drove along the beach and stopped at Swanbourne. The complainant said that the appellant seemed reluctant to talk about the events of the night before and she did not want to keep pushing the issue.[41]

(3) The appellant 'insisted' they go for a swim and that as it was a nude beach they should undress first. The complainant initially did not undress but eventually did so after the appellant 'kept insisting'. Once in the water, the appellant started kissing her and tried to have sex with her in the water. She said 'no' and that she did not feel comfortable and was too sore from the day before. He continued to try to kiss her so she went back onto the beach and put her bathers on.[42]

(4) The appellant came back to the beach and lay on a towel next to her. The appellant told her to lie on her stomach, which she did. He pulled down her bikini briefs and tried to penetrate her vagina with his penis. She struggled and said no. He then pushed her down and was on top of her. He inserted his penis into her anus and had anal sex with her for a few minutes. The complainant described it as excruciating.[43] Eventually the appellant stopped after people appeared on the beach.[44]

54 The complainant was asked why she did not tell anyone who appeared on the beach. She said she did not tell anyone because he was right there and because she was scared of how he would react and that she did not want to cause a drama.[45]

55 They then drove back to City Beach club house where, on the complainant's evidence, the events the subject of count 4 occurred. In the City Beach storage rooms the appellant started telling the complainant about his sexual fantasies. He said he liked being in control and that he thought pain was sexy. He started kissing her and then pushed her down onto her knees. When she was on her knees, he pulled down his bathers and pushed his penis into her mouth. He pushed her head down onto his penis until it was hitting the back of her throat and started choking her with his hands around her neck. He said it was all part of what turned him on and that it was sexy.[46]

56 The appellant's version of the events the subject of counts 2 to 4 was put to the complainant and denied by her.[47] The complainant was asked about the fact that she moved her clothing and lay next to the appellant, given what, on her evidence, had occurred the previous day. There was the following exchange between counsel for the appellant and the complainant:

What did you think was going to happen, [the complainant], between the two of you when you're lying there naked?---I took my clothes off to go for a swim at his insistence because it was a nude beach and because there was no one else around. I did not ask for sex. I was not intending to have sex just because my clothes were off.

Did you take your clothes off because you wanted to?---Because he - he told me to. He took his clothes off and he - he - he was very persuasive.[48]

57 When she was asked why she did not walk away from the appellant, she said she felt safe in public.[49] She denied she performed oral sex on the appellant,[50] and denied that she had got onto her hands and knees to enable him to penetrate her.[51] She denied he had asked for her permission before anally penetrating her.[52] She denied she was pushing back against him while he was inside her anus.[53] The complainant said she did not call out to people who walked past and that she was humiliated.[54]

58 The complainant was asked why she did not tell her mother about the incidents the subject of counts 2 - 4. She answered in the following terms:

I was scared how she'd react. She was very protective. She wouldn't - I hadn't told her that I'd lost my virginity the previous day. I knew that it would come as a shock to her, and I knew that if I told her about Alex she would get really angry and she would have to do something.[55]

59 She was also asked why she did not immediately tell anyone at the surf club. She answered as follows:

Because it was a male-dominated environment, because everyone there was his friend. I'd only joined just, you know, the previous year. So he'd been there for years and was a well-respected member of the community. I felt like that if I told someone, I would be criticised and it would be deemed to be my fault, or me causing a reaction and trying to get attention. So I kept it to myself.[56]

60 The complainant saw the appellant frequently in the period after the events the subject of the indictment. They continued a sexual relationship for about six months.[57] He was in control of that relationship, often inflicting pain on the complainant in the lead up to having sex with her. He told her that he was to be her master and that she was to do his bidding. The complainant had sex with the appellant between 20 to 30 times, mostly at his house. She described the sex as brutal. The appellant poured hot wax onto her genitals, used electrified nipple clamps, tied her up, whipped her like an animal, and urinated on her.[58]

61 The complainant said that during the course of the sex she did as she was told. Her evidence was that the appellant made clear that the nature of the relationship was one where he had complete and absolute power and that she was not to have a say. She was just to go along with it, and so she did.[59] He would also verbally abuse her in the process and that was part of what led him to the point of ejaculation.[60]

62 Asked why she went along with it, the complainant said that she did so because she was scared of what would happen if she upset him and that she did not know how to get out of it:[61]

Why did you go along with it?---Because I was scared of what would happen if I didn't because he was supposedly treating nicely and - and I was - and that was, you know, beating me and then having sex with me. I would hate to think what he did if I upset him and I just - I didn't know how to get out of it. I had no one to talk to and no one to - to kind of help me get out of the situation so I just went along with it because I knew that I would see him. I knew that at the surf club things would be awkward if I didn't, you know, continue to see him. So - - - .

63 When she was at the surf club and in public, she called him Alex. When they were alone, and especially when he 'did those things to [her]', she called him Larry. That helped her distinguish between the person she liked at the surf club and the horrible person he was when they were together alone.[62] He treated her as his sexual object.[63] The appellant gave her a dog collar and said she was Jessica Rabbit from the cartoon.[64] He had a tag on the dog collar engraved with 'Jessica'.[65] He would put the collar around her neck 'during these ordeals'.[66]

64 In re-examination the complainant said she was a willing participant in activities with the appellant as Jessica. She said it was her way of coping with what was happening to her, separating herself from the sexual acts and just doing what he said.[67] She was under his control. He was very verbally persuasive and persistent.[68]

65 The complainant was cross-examined at length about her sexual relationship with the appellant in the period following the conduct the subject of counts 1 to 4.

66 The complainant gave the following evidence about her subsequent relationship with the appellant:

Is it proper of me to describe the relationship between you and [the appellant] as one where you explored alternative sexual activities?---No. First of all I wouldn't call it a relationship. Second of all, it was something that was forced upon me, it was not a discussion that we'd had. And it was not a method of exploring, it was just inflicting. There was no - no balance in power or control. There was no safe word. There was no safety or support through that.[69]

67 The complainant said the BDSM that occurred at the Balga property was humiliating and degrading and accepted, nevertheless, that she went back 20 or more times.[70]

68 The complainant was questioned about the fact she went to a hotel with him.[71]

69 The complainant accepted that at times the appellant introduced her as the girl he was seeing.[72] Sometimes they held hands in public. She said that was part of what the appellant wanted her to do.[73] An example of that was one evening where she and the appellant went to a restaurant and then to Bayswater Waves where they all got into a spa.[74]

70 The complainant agreed that she had had a conversation with the appellant about her mother's response when she told her mother she had lost her virginity, and that she never said to the appellant that he had assaulted or raped her in the shower.[75] The complainant said she became used to the idea of the regular meetings where she would be abused and that she did not have a voice.[76]

71 The complainant agreed she lied to her mother about where she was going when she was intending to spend the night with the appellant.[77]

72 The complainant was close to her mother. She could have spoken to her about these things but was afraid of her reaction.[78]

73 When she was asked why she told her mother 'I lost my virginity' rather than 'I was raped' in the showers, the complainant said she was not ready to tell her mother the full story, she thought she would first gauge her mother's reaction because she knew it would come as a shock and she, the complainant, was still processing what had happened.[79] When she spoke to her mother, it was her perception that her mother was angry with her.[80]

74 The complainant agreed that by the time she told her mother, there had been other sexual encounters between her and the appellant, and that she had lied and truanted at school to be with the appellant.[81] She said that by then she was under his spell or control and did what he said.[82] When asked why she did not reject his requests or demands, she said it was 'because I wasn't strong enough. I didn't have a voice'.[83]

75 The complainant continued to interact with the appellant on Facebook for a year or two after their sexual relationship had ended. She said that she was trying to forgive and get over what had happened and to act like nothing was amiss.[84]

76 The complainant was cross-examined extensively about a number of Facebook messages she had sent to or exchanged with the appellant.

77 The following relates to a message sent by the complainant in October 2011:

Should have run up and picked - should have run up, picked me up and kissed me passionately. That would have caught my attention. Life's good. Four more days of school ever.

And that's you sending that to [the appellant]? That is. Well, we're joking. It was - you can see by the tongue faces. Everything is not a literal instruction. It's just the tone of the conversation. Everything has emoticons. It's not - it's - it's just a general chitchat.

78 In another Facebook exchange the appellant said 'fathers lock up your sons', to which the complainant said 'more like sons lock up your fathers'. The appellant said 'what are you implying?' The complainant responded 'nothing of course'. The appellant said 'ha ha ha you're shocking,' to which the complainant said 'you made me'. The appellant said 'I prefer to think I discovered you' to which the complainant said 'uh-uh'.[85] The complainant said this was the tone of the way she and the appellant joked and interacted,[86] and that she had tried to move on after what had happened.[87]

79 On 21 November 2011, the complainant sent the appellant a message, 'Hey bro how are you' in response to the appellant's message, 'Hey ya'.[88]

80 On 31 December 2011, in the context of an exchange, the appellant suggested they have coffee and that he wanted to maintain the friendship, to which the complainant said 'why do you care if we maintain any sort of relationship'.[89] The complainant said she sent that message because she did not understand why he wanted to meet up with her and see her outside of the Facebook spectrum after what had happened.[90] The next day, on 1 January 2012, the complainant sent a message saying, 'Sorry I had a few drinks last night and wasn't in the best mood. I shouldn't of been like that with you'.[91] The message finished with an 'x', symbolising a kiss.[92] The complainant explained that she had run into the appellant on New Year's Eve and had been short with him. He had wanted to speak with her but she had refused to do so. She said she tried to maintain a friendship after what had happened.[93]

81 In another exchange, the appellant wrote 'I still miss you' to which the complainant responded 'I miss you too'.[94] The appellant said she was saying she missed him as a person and he was a nice guy as Alex.[95]

82 The complainant agreed that she never accused him of sexually assaulting her or raping her.[96]

83 The complainant was cross-examined about an exchange on Facebook on 18 June 2012.[97] In response to a question from the appellant as to whether she missed him, the complainant said:

Miss you?---Ha ha ha ... in order to be irreplaceable, one must be different. You are just like every other pathetic guy who can't be satisfied with a beautiful woman who loves him and wishes he could be sleeping with a model.

We might've had a connection once, but you've lost my respect the way you treat [the appellant's then girlfriend].[98]

84 It was put to her that in that exchange there was no reference to any notion of sexual assault or anything forceful. The complainant said she was not ready to face it then, that she had not come to terms with it and it was something she tried to forget.[99]

85 In the course of the same exchange, the complainant wrote:

There has never been a point in our relationship where we have ever been 'just friends' so it seems impossible to me for you to miss that. All I have ever been to you was a sexual object and you manipulated me and used me as you pleased. What the fuck does a 15 year old know about sex? The thing that makes me soooo angry now is knowing that, that day in the bathroom at the surf club, you knew exactly what you were doing and there was no 'getting lost in the moment of passion'. It makes me sick and I won't ever forgive you for that and everything that followed ... you never treated me as an equal and you are no longer mine.[100]

86 The complainant said that that was a reference to the non-consensual sex that occurred in the shower, although she agreed she did not tell him that it was a sexual assault, that he had raped her.[101] She said she did not accuse him until years later, until she came to terms with it, but that she knew she was not given a choice and that he knew exactly what he was doing back then.[102]

87 Later in that exchange, the appellant said he admitted he had 'fucked up' and that he wanted to be a better person, and asked for the complainant's help with that, saying that he needed someone who was happy to tell him off when she needs it and that the complainant seems pretty good at that. The complainant responded 'of course I only want what's best for you and I'm capable of being completely honest'. The appellant responded 'so we can be friends and equals?' to which the complainant said 'yes'.[103] The complainant said, in effect, that she had meant what she said in that exchange. The appellant had made a mistake for which she had suffered the consequences, but she wanted to move on, get over it, become his friend and be honest with him, when earlier she had not had a voice and not been honest with him.[104]

88 The complainant was cross-examined about some exchanges on Facebook with the appellant in April 2010.

89 On 21 April 2010, the complainant sent the appellant a message in the following terms:

I love you too. Hey I hear the funniest thing today. The girls at school were talking about you. Oh my God, have you seen [the complainant's] new boyfriend. When I first saw him I thought it was her dad. So full of shit. I bet they were actually thinking how much they wanted to fuck you.[105]

90 The complainant gave the following evidence to explain the sending of that message:

?---So I want to put this into the context because this was during the period that I was playing the character Jessica. I was being the sexual toy. This was right after all of this had started and this was the way that he wanted me to talk to him and this was exactly the kind of dialogue that we'd have in person, it just continued on the Facebook posts.

So that's your explanation for this?---Yes. This is a fabrication and this is the way that he wanted things to be between us, just the way that he wanted the sex to be and the way he controlled every aspect from it, from putting on a dog collar the minute I walked in the door to controlling the different ways I was bound and assaulted. It was just - it was all controlled.

...

?---Exactly, I'm talking like these are just - that's not me. It's - I wrote this, yes, I'm not denying that I wrote this but this is the act of a girl who is being trained to talk this dialogue with him and is being regularly in sexual contact where she's submissive and he's instructing her on what to do and I just went along with it. And that's what I was doing, I was saying, you know, you - it's - - -[106]

91 The complainant was cross-examined about a further message sent on 23 April 2010 in which she thanked the appellant for visiting her today, saying it made her feel heaps better. The message concluded with 'I looooooooveee you and I'll text you in the morning'.[107] The complainant's evidence was that that was Jessica speaking.[108]

92 On 15 December 2010, the complainant sent the appellant a Facebook message:[109]

I'm sorry. I realise you went out of your way on Saturday night to see me, pick me up and drop me home. You can't have been much fun when all I could do in return was fall asleep on you. To tell you the truth I was beginning to feel like a bit of an idiot with feelings for you if this was only going to be a 'fuck buddy relationship'.

What your house mate said Saturday night kind of got to me ... the thing about our having sex with virgins was good and bad. Great sex but then the connection afterwards sucks. Well being number 33?? I'm guessing there's no big connection for you and the novelty of a pretty young thing might of warn off by now.

Anyway ... I just wanted to let you know how I was feeling that night x.

93 The complainant was cross-examined about this message. She said he had given her a lift while she was drunk and she had fallen asleep in the car.[110] She said at that point she wanted to justify to herself that at some point it had meant something to him or that he cared about her, that it was not all Larry but some of it was Alex too. She said she liked the person he was when he was Alex.[111]

94 On 30 June 2011, the complainant sent the appellant a message that included the following:

I saw your mum around the surf club the other day and almost teared up I missed you that much ... pathetic or what? Now I've promised myself I would talk to you until at least the end of the year and I intend to keep that up.[112]

95 The complainant accepted that she wrote that message.[113] [She did not offer any explanation for saying that she missed him so much].

96 The complainant accepted that she had never accused the appellant face to face of having sexually assaulted her.[114]

97 The complainant denied that after much time she had in her own mind turned events of consensual sex into something more sinister and non-consensual. The complainant said she now acknowledged what had happened in her own mind and had come to terms with them and started working through it.[115]

98 The complainant's mother gave evidence of picking the complainant up from the Glendalough bus station. The complainant was very unresponsive and not her normal self.[116] She was quiet during dinner. The complainant's mother noticed a tear go down the complainant's cheek. Her mother asked what was wrong. She said nothing. Before she finished dinner the complainant went up to her room. Her mother went to the room and found the complainant was crying. Her mother asked what was wrong and the complainant said 'nothing, I don't want to talk about it'.[117]

99 In cross-examination the complainant's mother gave evidence that on the complainant's 16th birthday they were in Bali. The complainant told her she wanted to go on the contraceptive pill because she was having sex. The complainant told her she had been having sex with her surf club instructor and told her his name.[118] The complainant's mother told her that, because of her age, she should go to the police and report it.

100 The complainant never told her mother while they were in Bali that the sex she had been having in the previous two months was non-consensual, or that she had been sexually assaulted.[119]

101 In re-examination the complainant's mother said that after their return from Bali the complainant became more and more fragile. The mother said she became scared that if she pushed the complainant to report the matter to the police the complainant would fall apart.[120]

102 One of the complainant's friends, RW, gave evidence of a conversation she had with the complainant. In around 2010 she received a telephone call from the complainant asking her to meet. RW said that the complainant sounded guarded and very strange.[121]

103 When they met the following day, the complainant told RW she had lost her virginity to the appellant at the surf lifesaving club. She told her 'she had lost her virginity to [the appellant] in the showers at the surf lifesaving club, that he'd penetrated her from behind, but it had hurt and she had bled'.[122] RW described the complainant as very guarded, not disclosing much information and quite shaken and subdued.[123] She was not happy.

104 Another friend of the complainant, ER, also gave evidence of a conversation she had had with the complainant. She said the complainant told her she had lost her virginity in the surf club showers to the appellant.[124] ER said that at the time the complainant was not happy. She said very little and was 'very minimal' about it, which was unusual for her.[125]

105 We have carefully reviewed the whole of the appellant's evidence. However, it is not necessary to outline that evidence in detail. The sentencing judge correctly summarised the appellant's evidence as to the circumstances in which the events the subject of counts 1 to 4 occurred, and as to their subsequent relationship. The primary judge found the appellant's evidence to be very rehearsed and his account of events to be implausible. There was no challenge on the appeal to that finding. That is not surprising. It was well open to the primary judge to find that the appellant's account was implausible. For example, on the appellant's version of events, a 15-year-old with no previous sexual experience was at Swanbourne beach positioning herself so that the appellant could enter her from behind and, when vaginal penetration proved too painful and caused bleeding, said that he could proceed with anal sex 'as long as he was gentle'.

106 The primary judge put the appellant's evidence to one side. For present purposes, this court can do the same. The appellant's case on appeal is that aspects of the complainant's evidence, and her conduct, together with the unchallenged evidence of witnesses called by the appellant, apart from the appellant himself, meant that it was not open to being satisfied beyond reasonable doubt of the truth and reliability of the complainant's account of the events the subject of the charges.

107 Samuel Cleaby gave evidence that he and the appellant walked past the Cottesloe Hotel when a girl waved at them. She followed them round the corner, gave the appellant a hug and had a friendly and normal conversation.[126]

108 Sinead Whitehead knew both the appellant and the complainant. She participated as a trainee assessor in the bronze medallion course with the appellant. She gave evidence of an occasion where she had a social swim with the appellant and the complainant at the beach after the course had finished. She saw them kissing and holding hands and behaving as an ordinary couple.[127]

109 Melissa Scruton gave evidence of seeing the complainant and the appellant out at the Moon Café where the two of them shared what appeared to be a happy night. All parties, including the complainant, were happy and chatting.[128] She also recalled an occasion when they were in a spa together at Bayswater Waves where they were holding hands and being affectionate.[129]

110 Michael Weymes gave evidence to a similar effect about the occasion at the Moon Café and at Bayswater Waves.[130] He described the appellant and complainant as very affectionate.[131]

111 Kaitlyn Wilson gave evidence that she was a friend of the appellant. He introduced her to the complainant. They were holding hands and appeared to be relaxed and affectionate.[132]

112 Stacey McCullum was the appellant's roommate at the house in Balga. She gave evidence that she recalled the complainant coming to the house and hanging out with the appellant. She said they interacted like a new couple who were happy together.[133] She said she saw the complainant there about five times or so of which three or four times they went to the bedroom.[134]

113 Lucy Butcher gave evidence of her observations of the appellant during the pretext phone call.[135]

114 The appellant submits that the finding of an absence of consent was not open because of the discrepancies and inadequacies in the evidence relied upon by the State and the sentencing judge.[136] The appellant submits that the principles to be applied are those referred to by the High Court in M v The Queen.[137] Those principles apply to a trial by judge alone.[138] Given that the sentencing judge was required to be satisfied beyond reasonable doubt as to the absence of consent, the appellant submits, and we accept, that these principles apply by analogy.

115 We apply the recent statement of those principles by this court in Wells v The State of Western Australia.[139] Adapted to the present case, those principles are as follows:

1. The appeal court must undertake its own independent assessment of the sufficiency and quality of the evidence. It is not simply a matter of deciding whether, as a matter of law, there was evidence to support the finding. The appeal court must determine whether, in all the circumstances, the finding was open.
2. The question for the appeal court is whether, on the whole of the evidence, it was open to the primary court to be satisfied beyond reasonable doubt in relation to the finding.
3. That question requires consideration of whether the primary court must, as distinct from might, have entertained a reasonable doubt about the finding.
4. In answering that question, the appeal court must pay full regard to the consideration that the primary court was entrusted with the primary responsibility of making findings in relation to sentence, and to the advantage that the primary court had in seeing and hearing the witnesses.
5. A doubt experienced by an appellate court would be a doubt which the primary court ought also to have experienced, unless the primary court's advantage in seeing and hearing the evidence is capable of resolving that doubt.
6. If the evidence, upon the record, contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to lead the appellate court to conclude that, even making full allowance for the advantages enjoyed by the primary court, there is a significant possibility that the finding of an aggravating feature has been wrongly made, the appellate court must set aside the finding.
7. The setting aside of a primary court's finding of fact is a serious step, not to be taken without regard to the advantage enjoyed by the primary court over a court of appeal which has not seen or heard the witnesses called at trial.

116 The appellant made five main points in support of his submission that, in reviewing the evidence, this court ought to experience a reasonable doubt that cannot be resolved having regard to the advantage of the primary judge in seeing and hearing the evidence.

117 First, the appellant submits that the evidence of RW, the complainant's best friend, is, in itself, capable of giving rise to a reasonable doubt about the issue of consent in relation to count 1.[140] Further, the existence of such a doubt in relation to count 1 must give rise to a reasonable doubt about whether the complainant consented in relation to counts 2 - 4.[141] RW's evidence that the complainant told her the appellant had penetrated her from behind was fundamentally inconsistent with the complainant's account of what happened in relation to count 1.[142] Further, RW's evidence was consistent with the appellant's account.[143] The appellant submits that there was no proper basis for the primary judge to reject the part of RW's evidence that was inconsistent with the complainant's evidence.[144]

118 Secondly, the appellant contends that the complainant's actions after the incident the subject of count 1 are inconsistent with the absence of consent. Immediately after the incident, the complainant got into the appellant's car and he drove her to a nearby train station.[145] The next morning, the complainant met the appellant at City Beach. They drove to Swanbourne Beach, undressed, went into the water and kissed. The appellant submits that the complainant would not have acted in this way if the complainant had been subjected to the sexual act without her consent.[146] The appellant submits that the primary judge did not deal with the inconsistency of that conduct with an absence of consent.[147]

119 Thirdly, the appellant submits that the Facebook exchanges between the complainant and the appellant are inconsistent with the notion that she had been subjected to sexual acts without her consent.[148] The appellant submits that, notwithstanding that the messages are after the relevant events, the fact there is an absence of any allegations of non-consensual sex, and that the messages reveal an attitude by the complainant of liking or having affection for the appellant, is inconsistent with there having been non-consensual sexual acts.[149]

120 Fourthly, the appellant points to the fact the complainant did not complain in a timely way after the events the subject of the charges.[150] About six weeks after the events, the complainant told her mother she was having sex and that she wanted the contraceptive pill. She told her she was having sex with the appellant. She did not tell her mother that she had been sexually assaulted by the appellant.[151]

121 Fifthly, the appellant points to the conduct of the complainant when the appellant and complainant were in public. The appellant submits that the complainant's behaviour was inconsistent with there having been non-consensual sexual conduct between them. They appeared to a number of people to have a happy relationship. She visited the appellant's home a number of times. Soon after these events, she stayed the night with him in a hotel room. The appellant accepts that this fifth point is not, in itself, capable of raising a reasonable doubt.[152]

122 The question is whether, having regard to all the evidence, the primary judge must have had a reasonable doubt as to the absence of consent, not whether she might have had such a doubt.

123 The matters raised by the appellant are capable of having given rise to a reasonable doubt. However, for the reasons that follow, we are not persuaded that they compelled a reasonable doubt. In our view, depending upon the primary court's assessment of the witnesses, in particular the complainant, these matters may or may not give rise to a reasonable doubt as to the absence of consent. To our minds, any doubts to which these matters give rise are capable of being resolved by the primary court's advantage in seeing and hearing the witnesses.

124 It is, of course, necessary to consider the evidence as a whole and, to that end, to consider the cumulative effect of the matters raised by the appellant. That is how we have approached the matter. For ease of exposition, we will deal with the matters raised by the appellant in turn.

125 We begin with the evidence of RW. The appellant submits that not only was that evidence inconsistent with the complainant's version of events, but it was consistent with the appellant's version, that penetration had occurred from behind in the showers. As to the latter, in our view, the evidence of what the complainant said to RW has no testimonial evidentiary value. In other words, it is not evidence that penetration in fact occurred from behind because, for that purpose, it is hearsay and inadmissible on that account. Thus, the significance of RW's evidence lay in it being evidence of a prior inconsistent statement by the complainant.

126 There is no doubt that the effect of RW's evidence is that the complainant told RW something that was inconsistent with the complainant's evidence. However, it was not suggested to the complainant in cross-examination that she had told RW she had been penetrated from behind. That did not preclude a submission that the complainant's evidence that she was penetrated in the shower in the way she described should not be accepted on the ground that she said something inconsistent to her friend RW.[153] However, the fact it was not put to the complainant was a matter to be taken into account in the assessment of whether her evidence was to be accepted, including in light of RW's evidence of a prior inconsistent statement made by the complainant.[154]

127 We do not accept that RW's evidence meant there was reasonable doubt as to the complainant's account of the events of count 1. The significance of RW's evidence was to be evaluated in light of the evidence as a whole, including the complainant's evidence as to what had occurred in the shower. The complainant gave a detailed and vivid account of those events, including the pain she felt when her back was pressed into the taps. The primary judge evidently found the complainant's account compelling and, based on our review of the record, it was open to do so. In our view, RW's evidence was a matter to be considered, but it did not require a conclusion of reasonable doubt.

128 As to the appellant's second point, the significance of the complainant's actions in the 24 hours after the incident the subject of count 1 must be assessed in light of her age and circumstances at the time, and all the evidence. In our view, the fact she was willing to get a lift with the appellant to a train station, in circumstances where she was 15 years old, did not have a licence and there was no one else at the surf club, does not detract in any significant way from her evidence as to what had occurred in the shower. Further, the complainant explained in her evidence that she wanted to speak to the appellant the next day because she was confused and hurt and wanted to understand what had happened.[155] She said it was the appellant's idea to go to Swanbourne Beach, that when he suggested she should undress, she did not do so, but he kept insisting.[156] These aspects of the complainant's evidence were matters to be considered in evaluating her evidence, but they did not require a conclusion that reasonable doubt existed.

129 The appellant's third and fifth points can be considered together. These relate to the communications between the appellant and complainant on Facebook in the years following the events the subject of the charges, the relationship between the appellant and the complainant over that time, and what people saw of how they related.

130 In the abstract, the idea that a person who is sexually assaulted by someone would thereafter continue in any form of relationship with that person, or act or communicate in a way that indicates or suggests affection, is contrary to common sense. But the whole of the complainant's evidence must be considered in assessing whether the matters relied on by the appellant give rise to a reasonable doubt as to the veracity and reliability of her evidence.

131 The complainant was 15 years old when the events the subject of the charges occurred. The appellant was significantly older and was a well-liked and respected member of the surf club. On the appellant's evidence, following the events the subject of the charges, she and the appellant entered into a relationship characterised by control, domination and bondage. Indeed, she said she would not call it a relationship; that what occurred was 'forced upon her' and 'inflict[ed]'.[157] She suffered 'ordeals'[158] in which she was treated as the appellant's sexual object[159] or sexual toy.[160] She was young and confused. She liked a part of the appellant, the person she knew at the surf club. She did not like how he treated her sexually. She responded by creating a dichotomy between 'Alex' and 'Larry'.[161]

132 We have set out the detail of the complainant's Facebook exchanges with the appellant. While the language and tone of the messages sent by the complainant is not, in the abstract, readily reconcilable with there having been penetration without consent, consideration of the whole of the complainant's evidence of their relationship puts these messages in a different light.

133 Regrettably, it is the court's experience that it is not unheard of for a person (frequently female) to return to a relationship notwithstanding an element of abuse within that relationship.

134 In relating to the appellant in the time after the events the subject of the charges, and in communicating with him, on her evidence she had not come to terms with what he had done and tried to act like nothing was amiss and to forget about it.[162]

135 That is also part of the explanation for the complainant not complaining about the absence of consent (the appellant's fourth point). She gave further explanation that she was scared of how her mother would react,[163] and that it would come as a shock to her and she would get really angry.[164] She explained why she did not tell anyone at the surf club. She said it was a male dominated environment where he was everyone's friend and she was a new member. She thought she would be criticised or it would be seen as her fault.[165]

136 When all of these matters are evaluated in light of the complainant's evidence as a whole, we are not persuaded that, individually or taken together, they required a conclusion of reasonable doubt.

137 The primary judge found that the distress exhibited by the complainant to her mother was consistent with and thereby supported the complainant's account in relation to count 1. The appellant makes two criticisms of that finding. First, the appellant submits that the judge failed to determine whether the distress was reasonably explicable only on the basis of the alleged penetration without consent. While her Honour did not expressly pose that question, she considered and rejected the defence submission that the distress described by the complainant's mother was equivocal as it was also consistent with being overwhelmed by the loss of her virginity. Secondly, the appellant submits that her Honour failed to consider whether the distress was explicable on the basis of the pain associated with the penetration that had occurred in count 1. Given there was no evidence or submission to that effect before the sentencing judge, it is not surprising that this point was not expressly considered. In any event, we do not think the complainant's evident distress, including going to her bedroom and crying, was reasonably explicable on the basis that the sexual penetration, in the shower of the surf club, had hurt and caused her to bleed.

138 In our view, on the evidence before her Honour, the sentencing judge was entitled to find that the evidence of distress was reasonably explicable only by the virtue of the complainant's account of penetration without consent, and so supported the complainant's account.

139 The primary judge had the considerable advantage of seeing and hearing the witnesses. Her Honour found that the complainant's spontaneous expressions of disbelief at particular points in the course of cross-examination reinforced her Honour's assessment of the credibility of the complainant.[166] The primary judge was entitled to make that assessment, and was better placed than this court is in doing so. Further, the primary judge found that the complainant gave her evidence in a forthright and frank manner, observing that she was willing to make concessions, even when they did not put her in the most favourable light.[167]

140 For all these reasons, in our opinion, when account is taken of the primary court's advantage in seeing and hearing the witnesses, it was open to the sentencing judge to be satisfied beyond reasonable doubt of the absence of consent. Consequently, we would dismiss ground 1.

141 Grounds 2, 3 and 4 all relate to the discount given by the primary judge under s 9AA of the Sentencing Act for the appellant's pleas of guilty. In relation to the discount, the learned sentencing judge said as follows:[168]

You pleaded guilty to these offences and would ordinarily be entitled to a significant discount, particularly given the nature of the offences. However, as a result of the trial of the issues, the complainant was required to give evidence and was subjected to cross-examination. In addition, all of the witnesses who would have been called at trial gave evidence.

Accordingly there has been very limited if any savings to the community in the administration of justice. However, your plea does show some acceptance of responsibility, and the complainant had some comfort that you acknowledged wrongdoing. I will therefore give you a discount of 5% pursuant to the provisions of s 9AA of the Sentencing Act.

142 Ground 2 asserts that in making an assessment of the 'benefits to the State, and to any victim of or witnesses to the offence' for the purposes of s 9AA of the Sentencing Act, the sentencing judge erred in law in taking into account irrelevant considerations, namely the fact that the complainant was required to give evidence and was subjected to cross-examination at the trial of the issues, and that all witnesses who would have been called at the trial gave evidence at the trial of the issues.

143 Section 9AA requires the court to make an assessment of the benefits to the State, and to any victim of or witness to an offence, 'resulting from the plea'. The appellant submits that the nature and effect of a plea of guilty is to admit the elements of the offence. Thus, the submission continues, an assessment of the benefits flowing from the plea directs attention to the benefits in not having to prove the elements of the offence.[169] The appellant submits that it is only the benefits that result from the entering of the plea that are to be assessed, so the fact that a witness may be required subsequently to give evidence about the facts that do not constitute an element of the offence is not a relevant consideration under s 9AA.

144 The appellant further submits that any contrary construction of s 9AA would undermine its evident purpose of encouraging people to plead guilty. The appellant submits that the purpose of the legislation is to encourage people to plead guilty, and thereby admit all the elements of the offence, not to also admit any aggravating circumstances asserted by the State.[170]

145 He further submits that the question of the benefits to the State and to any victim or witness is one that must be ascertainable, and must be ascertained, at the time of the entry of the plea and without regard to subsequent events.[171] Section 9AA should be construed so as to create a 'clear bright line', thereby avoiding uncertainty which would act as a disincentive to pleas of guilty.[172]

146 The appellant says the position can be tested by reference to a case where there was a trial of issues determined in favour of the offender. In those circumstances, that there had been a trial of issues, necessitating evidence from the complainant and other witnesses, could not be held against the offender for the purposes of s 9AA.

147 The appellant accepts that the fact there was a trial of issues may be relevant to the degree of remorse of an offender, but not to the assessment of benefits for the purposes of s 9AA(2).[173]

148 As the appellant accepted, the construction advanced by the appellant requires the implication of a limitation into the words of s 9AA.[174] We are not persuaded that the general and wide words of s 9AA(2) should be read down in the manner asserted by the appellant. Section 9AA(2) refers to a reduction in order to recognise the benefits to the State and to any victim of or witness to the offence resulting from the plea. In our view, broadly speaking, the phrase 'benefits ... resulting from the plea' invites or permits a comparison between the position following the plea and the position that would have applied had there been a plea of not guilty. We think the benefits resulting from the plea are to be assessed by a sentencing judge in light of all the circumstances of the case. We are not persuaded that the statutory phrase 'benefits ... resulting from the plea' requires that events occurring after the entry of the plea must be excluded from consideration.

149 We accept that if a trial of issues necessitated evidence from the complainant, or other witnesses, and were resolved in favour of an offender, the assessment of the benefits to the State, and to the complainant and other witnesses, could not, as a matter of logic and common sense, be reduced on account of the need for the complainant or other witnesses to give evidence at the trial of issues. In these circumstances, the benefit to the State, complainant and other witnesses resulting from the plea would be that the complainant and other witnesses were not required to give evidence. The fact they did give evidence at the trial of issues, upon which the State failed, would not then be relevant to the assessment of the benefit resulting from the plea. Rather, the need for the complainant and other witnesses to give evidence would result from the State's unsuccessful maintenance of its assertion of the aggravating factors the subject of the trial of issues. That would not be, as the appellant sought to characterise it, 'palm-tree justice'.[175] Rather, it would involve the court taking account of all the circumstances of the case in identifying the 'benefits resulting from the plea'.

150 Further, in this case the appellant pleaded guilty in circumstances where it was readily apparent that the State alleged there was an absence of consent, and that, if the appellant denied it, there would be a trial of issues about that issue.

151 For these reasons, in assessing the 'benefits ... resulting from the plea', the sentencing judge was not obliged:

(1) to find that, in the circumstances of this case, the 'benefits ... resulting from the plea' included that the complainant and other witnesses did not need to give evidence of the elements of the offence, and;

(2) to disregard that they were required to give evidence at the trial of issues.

152 Thus, the sentencing judge did not err in taking into account the fact that the complainant and other witnesses were required to give evidence at the trial of issues.

Ground 3: must a sentencing judge expressly state the head sentence?

154 Traditionally, and subject to statutory provision to the contrary, in sentencing, Western Australian courts have generally applied what is often referred to as the instinctive synthesis approach. That involves sentencing by bringing all relevant considerations to bear in arriving at an appropriate sentence, as distinct from a staged approach under which a sentence is first identified by reference to the objective circumstances and then adjusted by reference to circumstances personal to the offender.[176] Nevertheless, prior to the introduction of s 9AA, it was not uncommon for a sentencing judge to expressly identify a percentage discount that had been given for a plea of guilty (often between 20% and 35% in the case of a fast track plea of guilty).[177]

155 Section 9AA requires a sentencing judge to first determine an appropriate head sentence as a starting point, then to apply a discount to that head sentence under s 9AA(2) for the plea of guilty, and then to apply a further discount (if any) for other mitigating factors.[178] In other words, compliance with s 9AA necessitates that the sentencing judge identifies, at least in their mind, a specific head sentence as the appropriate starting point before applying any discounts. Thus, s 9AA means that, where there is a plea of guilty and the judge proposes to impose a fixed term of imprisonment, the one step instinctive synthesis approach to sentencing no longer applies.[179]

156 In Rossi,[180] McLure P observed that before the introduction of s 9AA there was only the exercise of a single discretion based on the outcome, whereas the effect of s 9AA is that there are two separate discretions. That was evidently a reference to the discretion in fixing the percentage discount for the plea of guilty under s 9AA(2), and the discretion in fixing the ultimate sentence. That reflects the two exercises of discretion which, under the Forkin procedure, are required to be expressly identified by a sentencing judge and which are, therefore, susceptible of complaint on appeal.[181]

157 Focusing on what a judge must do, rather than what must be spelled out, in an important sense, the process dictated by s 9AA involves the exercise of at least three discretions: first, the fixing of the head sentence; secondly, the determination of the discount for the plea of guilty; and thirdly, the determination of the discount (if any) for other mitigating factors. The ultimate sentence is the result of the exercise of those three discretionary judgments. But the process is dynamic, not mechanical. The sentencing judge's sense of the appropriateness of the ultimate sentence resulting from the application of particular tentatively determined discounts (for the plea of guilty and for other mitigating factors) to an identified tentatively determined head sentence may lead the judge to revisit one or more of those integers and then re-undertake the process accordingly.

158 The necessity for a sentencing judge applying s 9AA to identify a head sentence may be thought to present challenges to the sentencing judge. That is because the conventional instinctive synthesis approach to sentencing, adopted by both sentencing court judges and by appellate courts, means that decided cases have not involved the identification of an appropriate head sentence as a starting point before discounting for mitigating factors. As Hall J explained in Seeto, given the adoption of the Forkin procedure, and given there is no requirement to identify the extent of the discount for other mitigating factors, generally it will not be possible to reverse engineer from the sentence ultimately imposed to identify the head sentence used as a starting point. The exception is in the relatively rare cases where, apart from the plea of guilty, there are no mitigating factors.

159 As we have said, compliance with s 9AA necessitates that the sentencing judge identifies, at least in their mind, a specific head sentence as the appropriate starting point before any discounting for mitigating factors. The question raised by ground 3 is whether, on its proper construction, s 9AA requires that the sentencing judge expressly identify that starting point in their sentencing remarks. That question was recently determined, in the negative, in KAT v The State of Western Australia.[182] However, as the submissions in this case went beyond those made in KAT, the question requires further consideration.

160 The appellant submits that the requirement in s 9AA(5) that the court state 'the extent' of the reduction should be construed as requiring an express statement of the head sentence. Only then, the appellant submits, will s 9AA achieve one of its evident objects, namely an increase in transparency as to the effects on sentence of a plea of guilty. Otherwise, an offender and others are not, in substance, informed by a statement that a percentage reduction has been applied to an unquantified and generally unquantifiable head sentence.[183] Further, an express statement of the head sentence will ensure that the sentencing judge follows the staged process required by s 9AA.[184]

161 The starting point and ending point for the task of statutory construction is the statutory text. Context is relevant and may be important, but only insofar as it assists in fixing the meaning of the statutory text.[185]

162 Section 9AA(5) requires a statement of 'the extent of the reduction'. Relevantly, the word 'extent' connotes the size or scale of something. The units in which, or criteria by which, the extent is expressed will depend upon the context, in particular the subject the extent of which is to be expressed. In s 9AA(5), what must be stated (relevantly) is the extent of the reduction of the head sentence made under s 9AA(2). As a matter of ordinary language, when something is reduced the extent of the reduction may be stated in two ways: first, as a proportion or percentage; or secondly, in an amount quantified in the units in which the starting point is measured. For example, a price may be reduced by 50% or by $100.

163 So, as a matter of ordinary language, a statement of the extent of the reduction of the head sentence may be expressed as a percentage of the head sentence, or by reference to the length of time by which the head sentence has been reduced. The appellant contends for a construction that does not reflect either of those means of stating the extent of the discount. Thus, the appellant's construction does not find support in the ordinary meaning of the statutory text.

164 The existing state of the law is part of the context in which legislation is to be construed.[186] Section 9AA was introduced in the Sentencing Act by an amendment made in 2012. Given the nature and subject matter of the Sentencing Act, and of s 9AA, in construing s 9AA it is particularly relevant to have regard to the approach that was taken by courts in Western Australia to sentencing prior to the introduction of s 9AA.

165 Prior to the introduction of s 9AA, the Western Australian courts routinely gave discounts for pleas of guilty expressed in percentage terms.[187] Further, sentencing judges in this State did not routinely identify the starting point for the sentence prior to reduction for mitigating factors. There is nothing in the language of s 9AA to indicate any intention to alter these features of sentencing law and practice. In our view, that context supports construing s 9AA(5) so that a judge who states in percentage terms the discount that has been given for a plea of guilty without stating the head sentence complies with s 9AA(5).

166 That view is reinforced by consideration of what was said in the course of the second reading speech for the Bill introducing s 9AA, when the Honourable Attorney General said as follows:

This Bill continues the government's programme of making court processes more transparent to the community, by setting a maximum, discount of 25% for a plea of guilty and requiring courts to openly state the percentage discount they grant in recognition of a plea of guilty.[188] (emphasis added)

167 In our opinion the text, context and extrinsic materials support the construction of s 9AA(5) that a sentencing judge who states the percentage by which the head sentence has been reduced without stating the length of the head sentence complies with the requirement to state the extent of the reduction.

168 The appellant submits that the purpose of s 9AA requires and sustains the construction for which he contends. The thrust of the appellant's submission is that:

(1) A central purpose of s 9AA is to encourage pleas of guilty by ensuring transparency as to the effect of a plea of guilty on sentences.

(2) An express statement of the head sentence better advances that purpose of transparency.

(3) For that reason, the appellant's construction should be preferred. [189]

169 Care is needed in the identification and characterisation of the purpose of a statutory provision, or a statute as a whole, as an element of the process of statutory construction. The purpose of a statute may appear from an express statement in it, or by inference of its terms and appropriate reference to extrinsic materials.[190] The purpose of legislation must be derived from what the legislation says, and not from any assumption about the desired or desirable reach or operation of the relevant provisions.[191] Legislation often pursues a purpose to a limited extent, rather than to the fullest extent possible at all costs. Where a constructional issue is one of doubt about the extent to which legislation pursues a purpose, stating the purpose will not solve the problem.[192] The question is not what is the purpose underlying the legislation, but rather how far the legislation goes in pursuit of that purpose.[193]

170 In our view, the appellant's characterisation of the purpose of s 9AA is identified at too high a level of generality, and without sufficient regard for the text of s 9AA, and in particular subs (5). In s 9AA, the object of transparency is pursued only insofar as subs (5) requires a sentencing judge to state the fact that they have reduced the head sentence pursuant to s 9AA(2), and to state the extent of the reduction. That is reflected in Buss JA's outline of the objects of s 9AA, being:

(a) to impose a maximum limit on the discount available for a plea of guilty, namely 25% of the head sentence;

(b) to ensure the maximum discount of 25% may only be given where an offender pleads guilty, or indicates that he or she will plead guilty, at the first reasonable opportunity;

(c) to confine the availability of the discount under s 9AA for a plea of guilty to the recognition of 'the benefits to the State, and to any victim of or witness to the offence, resulting from the plea'; and

(d) to increase the transparency of the sentencing process by requiring the sentencing judge to state in open court the fact and the extent of any discount under s 9AA for a plea of guilty.[194]

171 Thus, the scope of the increase in transparency sought to be achieved by s 9AA is reflected in and revealed by the obligation under s 9AA(5), properly construed, to state the fact and extent of the reduction. In this light, it can be seen that the appellant's reliance on the purpose of s 9AA in support of his construction has a bootstraps element, or involves making an unstated assumption about the extent to which the object of transparency in sentencing is pursued. The construction question is as to the meaning and content of the express requirement to state the extent of the reduction. That question is not to be determined by superimposing a wider goal of transparency that is served only by adopting a wider view of how the extent of a reduction is to be stated.

172 The appellant relies heavily on what was said by Hall J in Seeto v The State of Western Australia,[195] as follows:

The Forkin procedure does not require express statement of the head sentence. Nor is such a statement required by s 9AA. However, this cannot mean that there is no need for a sentencing judge to have a starting point. This then begs the question of whether the purpose of s 9AA is achieved by having a head sentence that is not stated.

The evident objects of s 9AA are to limit the maximum discount that can be given for a plea of guilty and to ensure that those who plead guilty (and others) know what discount they have received. A stated discount that reflects the timing of the plea and the benefits of the plea will serve to encourage other guilty persons to enter their pleas at the earliest possible time. But this assumes that a percentage can be applied to some notional sentence to reach a figure that can be expressed in terms of time. If the percentage reduction cannot be translated into a period of time, it is difficult to see how it can be meaningful either to the offender or other persons who have been charged but not yet entered a plea.

The problem with the Forkin procedure is that the head sentence is not stated so there is no figure to which the offender can apply the percentage to calculate the discount he or she received. Nor can the discount be calculated back from the final sentence imposed. This is because s 9AA requires any discount to be applied before taking into account other mitigating factors. Any reduction allowed for those other factors does not have to be stated. Accordingly, since it is not possible to know what reduction was allowed for those other factors it is usually impossible to reverse-engineer to the starting point and thereby calculate the discount. A law that seems intended to make the discount more certain and apparent does not achieve that objective if the Forkin procedure is followed. That, of course, may be the fault of the statute and how it is framed. However, the effect is that offenders may know that they have received a discount expressed in percentage terms, but that knowledge has limited utility because it generally cannot translate into a calculable period of time.

There is another risk with the Forkin procedure. It is that a sentencing judge will merely state a percentage discount without in fact going through the procedure required by s 9AA. A sentencing judge might wrongly think that an entirely instinctive synthesis approach with an aside regarding a percentage discount would meet their obligations. There is also the risk that having stated a percentage discount a sentencing judge who does not go through the steps that s 9AA requires will forget to actually apply it, or will make an error in applying it. If those types of errors occur they will not be apparent. If such an error has been made the only recourse for the sentenced person will be to argue that the final sentence for an individual offence is manifestly excessive or that the total sentence infringes the totality principle. The difficulty in mounting such an argument is that it will significantly depend upon comparisons with other cases, some of which will involve guilty pleas that have also been dealt with in the Forkin manner.

173 His Honour's observations were not directed, in terms or in substance, to any identified question of construction of s 9AA. Further, his Honour specifically said that an express statement of the head sentence is not required by s 9AA.[196] In our view, the considerations discussed by Hall J may be reasons why Parliament might have chosen to go further in stipulating the steps that a sentencing court is obliged to spell out. But they do not sustain a construction of the text of s 9AA as enacted to the effect contended by the appellant. To our minds, to adopt the appellant's construction would be to impose the court's view as to the desirable operation of s 9AA.[197]

174 Of course, none of this means that it is wrong for a judge to identify the head sentence to which the discount is applied. As the State accepted,[198] there are some potential benefits in doing so. But s 9AA does not require it. Whether a sentencing judge expressly states the head sentence is a matter for the individual judge.

176 Ground 4 complains that the sentencing judge erred in law by failing to take into account the benefits to the State resulting from the appellant's plea of guilty, that being a consideration she was required to take into account in exercising her discretion under s 9AA. The appellant refers to the parts of the sentencing judge's reasons to which we have already referred: see [141]. The appellant submits that the judge took into account only the benefits to the victim and the witnesses, and erroneously failed to take into account the benefits to the State including:

(a) the conviction of a person who has committed a criminal offence was secured;

(b) the fact there was a more expeditious and efficient resolution of proceedings, as a trial would have taken longer than the trial of the issues; and

(c) the time and expense involved in summoning and empanelling jurors for a criminal trial was avoided.

177 The sentencing judge raised with counsel for the appellant the question of the discount to be given under s 9AA. Counsel stated that the discount would be 'marginal'.[199] The judge asked on what basis it was contended that there should be a discount at all. Counsel responded that there should be a discount to give the appellant some credit for at least acknowledging the criminality of having sex with a person who was (given her age) not able to consent.[200]

178 In her sentencing remarks, the judge accepted, in effect, these submissions on behalf of the appellant.[201]

179 Generally speaking, it is incumbent on parties who contend, on an appeal against a discretionary decision, that attention was not given to particular matters to demonstrate that the primary judge's attention was drawn to those matters.[202] In circumstances where counsel for the appellant was invited to articulate considerations relevant to any discount under s 9AA, and nothing said by counsel was overlooked by the sentencing judge, we are not persuaded that the sentencing judge erred by overlooking the benefits to the State resulting from the plea.

180 Ground 5 alleges that the total effective sentence of 5 years 6 months infringes the first limb of the totality principle.

Appeal on ground of totality: general principles

181 Sentencing is a discretionary exercise. An appellate court can intervene only if the appellant demonstrates either an express or implied error. Express error involves acting on a wrong principle, for example by mistaking the law or facts or taking into account an irrelevant matter. Implied error arises where the end result is so unreasonable or unjust that the court must conclude that a substantial wrong has occurred. Thus, an appellate court cannot substitute its own opinion for that of the sentencing court merely because the appellate court would have exercised a sentencing discretion differently.

182 Relevantly, the totality principle requires the effective sentence to be a just and appropriate reflection of the total criminality involved in all the relevant offences, viewed in their entirety and having regard to the circumstances of the case, including the offender's personal circumstances.[203]

183 In order to determine whether a sentence for an individual offence is manifestly excessive, the offence should be viewed in light of the maximum sentence prescribed by law for the crime, the standards of sentencing customarily imposed with respect to it, the place that the criminal conduct occupies in the scale of seriousness of crimes of that type, and the offender's personal circumstances.[204] Similar considerations apply to an assessment of whether multiple sentences for a number of offences infringe the first limb of the totality principle.[205]

184 The range of sentences customarily imposed for a crime does not establish the range of a sound exercise of the sentencing discretion.[206] Sentences customarily imposed in comparable cases provide a yardstick or reference point for ensuring broad consistency in sentencing, bearing in mind the scope for significant variations in relevant sentencing factors, and that there is no single correct sentence.[207] What is important is the unifying principles which sentences imposed in comparable cases reveal and reflect.[208]

185 The High Court has recently reiterated the need to ensure that sentences imposed in previous cases are not taken as defining the sentencing range so as to conclude that because the sentence imposed in the instant case exceeds the sentences imposed in other cases, the sentence under consideration is therefore beyond the range of available sentences.[209]

186 Where there is a challenge on totality grounds, the severity of a sentence imposed on an individual count generally falls to be assessed in light of the sentences imposed in respect of the other counts and its contribution to the total effective sentence. A heavy individual sentence may be softened by an order that it be served concurrently with sentences imposed in relation to the other counts. A relatively light sentence may, as a practical matter, have increased severity if it is ordered to be served cumulatively. The real question is whether the total effective sentence is excessive.[210]

187 The utility of comparable cases in determining questions of totality may be limited to providing some broad guidance, because there will not infrequently be significant differences in the circumstances of the offending and the offenders.[211]

188 The appellant was 21 years old at the time of the offences, and 27 when he was sentenced.[212] His youth at the time of committing the offence was taken into account by the sentencing judge.[213] The appellant had no criminal record and was of prior good character.[214]

189 The appellant was well respected in the surf lifesaving community, having volunteered and then worked full-time in that area until his arrest on these charges.[215] Subsequently, the appellant has worked as an air-conditioning technician, shown a good work ethic, and was a valued and trusted employee. The sentencing judge accepted that the appellant would again be a contributing member of the community.[216]

190 The appellant is the third of his parents' four children. They separated when he was 6 years old. He has a close relationship with his family. Apart from difficulties associated with his parents' breakup, the appellant's upbringing was otherwise unremarkable.[217]

191 The appellant has had a number of relationships with women, many of which were before this offending. After this offending, he met his wife in September 2011 and married her in October 2015.[218]

192 The appellant began engaging in low key experimentation in BDSM while he was in year 12. He told the psychologist he engaged in BDSM before and after this offending. He told the psychologist it was not a big part of his sex life. The sentencing judge observed that that appeared to be inconsistent with the evidence of the complainant, who said that BDSM dominated his sexual activities with her.

193 The sentencing judge found the appellant was not entirely open with the psychologist about his interests and engagement in BDSM and that that was a matter of some concern.[219] The sentencing judge found that the appellant was remorseful for his conduct, and did not realise the harm it would cause to her to engage in behaviour she was not mature enough to engage in. However, the sentencing judge observed that that remorse related solely to her being underage and that the appellant did not accept his aggressive and forceful conduct in being determined to have the sexual penetration of his choosing without regard to the complainant's resistance.[220]

194 Taking into account the results of psychometric testing and the assessment of a psychologist, the judge found that the appellant was at a low risk of reoffending.[221]

195 The appellant has the support of his wife, family and other friends, lessening the need for personal deterrence and rehabilitation. Nevertheless, the sentencing judge said that given her concerns regarding the appellant's lack of candour about BDSM and the absence of remorse regarding his aggressive forceful conduct, the need for rehabilitation and personal deterrence was not entirely extinguished.[222]

196 Given the nature of ground 5 as a totality complaint, it is not necessary to outline all aspects of the judge's sentencing remarks.

197 The judge made the following observations as to the seriousness of the appellant's offending:

(1) The purpose of s 321 is not only to protect children from sexual predators but also to protect them from themselves, it being undesirable that young people embark upon sexual activity at an age at which they are not able to fully comprehend or cope with the social and emotional consequences of that activity. The judge observed that this case demonstrates why such a law exists.[223]

(2) Further, in this case, the lack of consent was a significant aggravating factor particularly given the high level of abuse and corruption associated with the acts of anal intercourse and the BDSM element to the oral intercourse.[224]

(3) The appellant was 5 years and 8 months older than the complainant when the offences occurred, and had no misapprehension as to her age. Being significantly more mature and sexually experienced, together with his position in the lifesaving community, aggravated the offending.[225]

(4) While the complainant acquiesced in some low level sexual conduct, she made her resistance clear both physically and verbally. The appellant approached her when she was vulnerable in the shower and then capitalised on her lack of experience and worldliness the next day. Further, the appellant used force and aggression to achieve his sexual gratification.

(5) The sentencing judge characterised the appellant's offending as a serious example of offending of its kind.[226]

(6) The judge observed that the effect on the complainant had been profound. The victim impact statement set out the significant pervasive and long term effects of these events. In these remarks the judge recognised that it was not possible for the victim to separate the effects of the initial conduct the subject of these offences with the subsequent sexual relationship in which they engaged.[227]

198 The judge found that an immediate term of imprisonment was the only appropriate sentence and that suspension of the term of imprisonment was inappropriate.

199 Her Honour concluded that in all the circumstances, and taking into account the discount of 5% pursuant to s 9AA of the Sentencing Act, the appropriate sentence for each of counts 1, 3 and 4 was 4 years, and in relation to count 2, a sentence of 18 months' imprisonment.

200 Her Honour considered the question of concurrency and cumulation. The offending occurred on separate days and involved different forms of penetration, with an escalating level of abuse, corruption and aggression. As a consequence, her Honour considered that some accumulation was necessary. Her Honour recognised that it was necessary to ensure that the total effective sentence imposed bears a proper relationship to the overall criminality.[228]

201 Her Honour reduced the sentence on count 4 to 18 months' imprisonment in order that it be served cumulatively to the sentence on count 1. All other sentences were to be served concurrently. Thus, the total effective sentence was 5 years 6 months' immediate imprisonment.

202 The appellant relies primarily on three cases in support of his contention that his sentence infringed the first limb of the totality principle: LFG v The State of Western Australia,[229] D'Rozario v The State of Western Australia,[230] and Gavenlock v The State of Western Australia.[231] In our view, these cases do not sustain or assist the appellant's contention. Three decisions is an inadequate foundation for discerning sentencing patterns. In any event, for the reasons explained below, the sentence imposed on the appellant is broadly consistent with the sentences imposed in these and other broadly comparable cases.

203 In LFG v The State of Western Australia, the offender was convicted after trial of one count of indecent dealing with a child under the age of 13 years, nine counts of indecent dealing with a child of or over the age of 13 years and under the age of 16 years and five counts of sexual penetration of a child of or over the age of 13 years and under the age of 16 years. His appeal against the total effective sentence of 7 years 10 months' imprisonment was dismissed.

204 There were many serious elements of the offending in LFG that are not present in this case. For example, the offences were committed over a period of almost three years; they were planned and followed a prolonged course of grooming. The offender was significantly older and had a prior criminal record including convictions for child sex offences. However, in LFG there was no finding of a lack of consent, and the offences were not committed in the forceful and aggressive way that the appellant acted in committing these offences. Further, in LFG, the sentence was significantly higher than the total effective sentence imposed on the appellant.

205 In D'Rozario v The State of Western Australia, the offender was convicted, following pleas of guilty, of four counts of sexual penetration of a child of over the age of 13 years and under the age of 16 years, one count of being an adult using electronic communication with intent to procure a person under the age of 16 years to engage in sexual activity, and one count of possession of child exploitation material. The sentencing judge imposed a total effective sentence of 5 years' imprisonment. Leave to appeal on the ground that the total effective sentence breached the first limb of the totality principle was refused. In that case, the offender had a criminal history for child sex offences and there was found to be a demonstrated need for personal deterrence. However, there was no offending involving penile penetration, and no findings of absence of consent or of the use of any force.

206 The same is true of the other decision relied on by the appellant, Gavenlock v The State of Western Australia. The offender in that case was convicted after trial of three counts of indecently dealing with a child between the ages of 13 and 16 years and two counts of sexually penetrating a child between the ages of 13 and 16 years. The sentencing judge imposed a total effective sentence of 4 years 6 months' imprisonment. The Court of Appeal upheld an appeal on the grounds that the total effective sentence infringed the first limb of the totality principle and substituted a total effective sentence of 3 years' imprisonment. The circumstances of the offending in Gavenlock was significantly different from the offending in the present case. In Gavenlock, the offender desisted when told to by the complainant. There was no element of violence or threat of violence. There was no relationship of trust. There was no information as to the effect of the offending on the victim.[232]

207 We have also considered the survey of cases by Wheeler JA in JAF v The State of Western Australia,[233] and by Buss JA in his dissenting judgment in The State of Western Australia v SJH.[234]

208 The maximum sentence for the appellant's offences of sexual penetration of a child between the ages of 13 and 16 years is 14 years' imprisonment. The maximum for the attempt offence is 7 years' imprisonment.

209 In our view, the aggravating features identified by the sentencing judge justified her characterisation of the appellant's offending as a serious example of offending of its kind. The absence of consent very significantly aggravates the appellant's offending, and serves to distinguish it from many other cases involving offending under s 321 of the Criminal Code. The appellant occupied a position of trust as an employee of the surf lifesaving club and as the complainant's instructor. He was 5 years and 8 months older than the complainant and significantly more sexually experienced. The appellant knew that the complainant was 15 years old, and that she was a virgin before he commenced to offend against her. The appellant focused on fulfilling his perceived needs and wants and disregarded the complainant's wishes. He penetrated the complainant in various ways: penile - vaginally, anally, and orally. The oral penetration involved an element of violence. The appellant's offending has had a profound and enduring effect on the complainant.

210 For the reasons we have given, we are not persuaded that the total effective sentence imposed on the appellant is so high as to reveal implied error. Consequently, we would dismiss ground 5.

211 For the reasons we have given we would grant leave to appeal on grounds 1 - 4, and would dismiss the appeal.

[10] Bondage and discipline, domination and submission, sadism and masochism.

[17] Liberato v The Queen [1985] HCA 66; (1985) 159 CLR 507.

[136] Appellant's submissions [18], [24]; appeal ts 7.

[137] M v The Queen [1994] HCA 64; (1993) 181 CLR 487, 492 - 495.

[138] Filippou v The Queen [2015] HCA 29; (2015) 256 CLR 47.

[139] Wells v The State of Western Australia [2017] WASCA 27 [13].

[140] Appellant's submissions [34]; appeal ts 8 - 12.

[141] Appellant's submissions [34]; appeal ts 13.

[142] Appellant's submissions [34].; appeal ts 8 - 10, 11.

[144] Appellant's submissions [30] - [31]; Appeal ts 11.

[146] Appellant's submissions [24]; appeal ts 12 - 13.

[148] Appellant's submissions [36]; appeal ts 14 - 17.

[150] Appellant's submission [23], [25]; appeal ts 17.

[151] Appellant's submission [26]; appeal ts 18.

[153] MWJ v The Queen [2005] HCA 74; (2005) 80 ALJR 329 [19], [41].

[162] For example, AB 92,160, 162, 174.

[169] Appellant's submissions [50] - [51]; appeal ts 23 - 25.

[176] The authorities were recently collected by Buss P in KAT v The State of Western Australia [2017] WASCA 11 [16] - [23]; see also Chivers v The State of Western Australia [2005] WASCA 97 [20] - [27].

[177] Miles v The Queen (1997) 17 WAR 518, 521; Fullgrabe v The State of Western Australia [2006] WASCA 138 [27] - [28]; Moody v French [2008] WASCA 67; (2008) 36 WAR 393 [37].

[178] Seeto v The State of Western Australia [2014] WASCA 221; (2014) 246 A Crim R 386 [66] - [67]; LJH v The State of Western Australia [2016] WASCA 155 [62] - [63]; KAT [33] - [34]. In this appeal, counsel for the respondent did not suggest otherwise (appeal ts 53).

[179] Rossi v The State of Western Australia [2014] WASCA 189; (2014) 47 WAR 508 [80]; Seeto [60], [65] - [66]; LJH [63]; KAT [32] - [33].

[181] See also KAT [40] - [43].

[183] Appellant's submissions [62] - [66], appeal ts 27 - 28, 31, 33 - 34, 36.

[185] See the authorities collected in City of Kwinana v Lamont [2014] WASCA 112 [47].

[186] CIC Insurance Ltd v Bankstown Football Club Ltd [1997] HCA 2; (1997) 187 CLR 384, 408; Network Ten Pty Ltd v TCN Channel Nine Pty Ltd [2004] HCA 14; (2004) 218 CLR 273 [11]; Director General of Department of Transport v McKenzie [2016] WASCA 147 [47].

[187] Commonly between 20% and 35% for a fast-track plea, depending on the circumstances; Moody v French [2008] WASCA 67; (2008) 36 WAR 393 [37].

[188] Western Australia, Parliamentary Debates, Legislative Assembly, 16 August 2012, 1502 (Mr M Mischin, Attorney General).

[189] Appellant's submissions [65], appeal ts 33 - 34.

[190] Lacey v The Attorney-General (Qld) [2011] HCA 10; (2011) 242 CLR 573 [44].

[191] Palgo Holdings Pty Ltd v Gowans [2005] HCA 28; (2005) 221 CLR 249 [28]; Certain Lloyd's Underwriters v Cross [2012] HCA 56; (2012) 248 CLR 378 [26].

[192] Carr v The State of Western Australia [2007] HCA 47; (2007) 232 CLR 138 [5].

[194] Abraham v The State of Western Australia [2014] WASCA 151; (2014) 244 A Crim R 1 [50]. There is a substantially indistinguishable statement of the purposes of s 9AA in the Explanatory Memorandum.

[202] Macedonian Orthodox Community Church St Petka Inc v His Eminence Petar The Diocesan Bishop of Macedonian Orthodox Diocese of Australia and New Zealand [2008] HCA 42; (2008) 237 CLR 66 [120]; Park Trent Properties Group Pty Ltd v Australian Securities and Investments Commission [2016] NSWCA 298; (2016) 116 ACSR 473 [51]; Australian Competition and Consumer Commission v Reckitt Benckiser (Australia) Pty Ltd [2016] FCAFC 181; (2016) 340 ALR 25 [48].

[203] Roffey v The State of Western Australia [2007] WASCA 246 [24].

[204] Chan v The Queen (1989) 38 A Crim R 337, 342.

[205] See, for example, R v Baldock [2010] WASCA 170; (2010) 269 ALR 674 [131] (Buss JA).

[206] Hili v The Queen [2010] HCA 45; (2010) 242 CLR 520 [54].

[207] The State of Western Australia v Munda [2012] WASCA 164; (2012) 43 WAR 137 [59].

[208] Barbaro v The Queen [2014] HCA 2; (2014) 253 CLR 58 [41].

[209] The Queen v Kilic [2016] HCA 48; (2016) 91 ALJR 131 [24].

[210] Giglia v The State of Western Australia [2010] WASCA 9 [40].

[211] Chadd v The State of Western Australia [2013] WASCA 99 [45].

[229] LFG v The State of Western Australia [2015] WASCA 88; (2015) 48 WAR 178.

[230] D'Rozario v The State of Western Australia [2015] WASCA 171.

[231] Gavenlock v The State of Western Australia [2014] WASCA 36.

[233] JAF v The State of Western Australia [2008] WASCA 231; (2008) 190 A Crim R 124 [15].

[234] The State of Western Australia v SJH [2010] WASCA 40; (2010) 200 A Crim R 228 [149] - [159].