Criminal law - State appeal against sentence - Manifest inadequacy - Infringement of the totality principle - Guilty plea - One count of aggravated grievous bodily harm -Victim in a family and domestic relationship with the offender - Victim over the age of 60 years - One count of aggravated assault occasioning bodily harm - Six counts of aggravated sexual penetration without consent - One count of attempted aggravated sexual penetration without consent - Victim in a family and domestic relationship with the offender - Threat to kill - Bodily harm

Criminal Code (WA), s 297(3), s 317(1), s 326, s 552

C v The State of Western Australia [2006] WASCA 261

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

Gaskell v The State of Western Australia [2018] WASCA 8

Hansen v The State of Western Australia [2014] WASCA 229

Juma v The State of Western Australia [2011] WASCA 54

Lindsay v The State of Western Australia [2010] WASCA 142

McGarry v The Queen [2001] HCA 62; (2001) 207 CLR 121

NPA v The State of Western Australia [2018] WASCA 131

Royer v The State of Western Australia [2009] WASCA 139; (2009) 197 A Crim R 319

Sathitpittayayudh v The State of Western Australia [2015] WASCA 152

The State of Western Australia v Akizuki [2008] WASCA 267; (2008) 192 A Crim R 373

The State of Western Australia v BKJ [2018] WASCA 136

The State of Western Australia v Ellement [2016] WASCA 1

The State of Western Australia v Richards [2008] WASCA 134; (2008) 37 WAR 229

The State of Western Australia v Smith [2016] WASCA 153

The State of Western Australia v WTG [2016] WASCA 175

The State of Western Australia v Yamalulu [2019] WASCA 6

Trompler v The State of Western Australia [2008] WASCA 265

Ugle v The State of Western Australia [2012] WASCA 104; (2012) 223 A Crim R 115

Warburton v The State of Western Australia [2009] WASCA 113; (2009) 196 A Crim R 361

Williams v The State of Western Australia [2015] WASCA 110

1. On 13 February 2018, the respondent was convicted, on his pleas of guilty before Stevenson DCJ, of nine counts in an indictment.
2. The sentencing judge imposed a total effective sentence of 6 years 6 months' imprisonment. The sentence was backdated to 6 July 2017 and a parole eligibility order was made.
3. Details of the offences and the sentences imposed are set out below.

(Att) aggravated sexual penetration without consent

1. The State has appealed against sentence.
2. Like Mazza and Beech JJA, I would allow the appeal, set aside his Honour's sentencing decision and resentence the respondent. However, I would in some respects resentence the respondent differently from Mazza and Beech JJA.

The facts and circumstances of the offending, the sentencing judge's sentencing remarks, the expert reports, the respondent's personal circumstances and antecedents and the submissions of the parties

1. The facts and circumstances of the offending, the sentencing judge's sentencing remarks, the expert reports, the respondent's personal circumstances and antecedents and the submissions of the parties are, to the extent relevant, set out in the reasons of Mazza and Beech JJA. It is unnecessary to repeat them.

1. The State relies upon three grounds of appeal.
2. Ground 1 alleges that the sentencing judge erred in law by imposing a sentence in relation to count 1 that was manifestly inadequate.
3. Ground 2 alleges that his Honour erred in law by imposing sentences for counts 3, 4, 5, 7, 8 and 9 that were manifestly inadequate.
4. Ground 3 alleges that his Honour erred in law by imposing a total effective sentence that infringed the first limb of the totality principle.

1. I agree with Mazza and Beech JJA, for the reasons they give, that grounds 1 and 2 have been made out and that it is unnecessary to decide ground 3.
2. I am satisfied that different and higher sentences should have been imposed for counts 1, 3, 4, 5, 7, 8 and 9 and that a different and higher total effective sentence should have been imposed. See s 31(4)(a) of the Criminal Appeals Act 2004 (WA).

1. Counsel for the respondent did not submit that the residual discretion under s 31(4) of the Criminal Appeals Act should be exercised. The respondent does not, of course, bear an onus to establish that the residual discretion should be exercised in his favour. Rather, it is incumbent on the State to negate any reason why the residual discretion of this court not to interfere should be exercised. See CMB v Attorney General (NSW).[1]
2. In my opinion, there is no basis, in the present case, for invoking the residual discretion. The sentences imposed by the sentencing judge for counts 1, 3, 4, 5, 7, 8 and 9 and the total effective sentence imposed by his Honour were substantially less than those open on a proper exercise of the sentencing discretion. Appealable error has been very clearly established. This court's intervention is necessary to ensure that proper sentencing standards are adopted and maintained for the relevant offences.
3. I would allow the appeal.
4. His Honour's sentencing decision (including all of the individual sentences, the orders for concurrency and cumulacy and the associated orders) should be set aside.
5. This court has the material necessary to resentence the respondent.
6. I would allow a discount of 20%, pursuant to s 9AA of the Sentencing Act 1995 (WA), on the head sentences I would otherwise have imposed for counts 1, 2, 3, 4, 5, 6, 7, 8 and 9, on account of the respondent's pleas of guilty. This recognises the benefits to the State and its witnesses resulting from the pleas.
7. I have also reduced the sentences I would otherwise have imposed for each of the counts because of the other mitigating factors identified by the sentencing judge.
8. After taking into account all relevant facts and circumstances (including his Honour's unchallenged findings of fact) and all relevant sentencing factors including:

(a) the relevant provisions of the Sentencing Act (notably, s 6, s 7 and s 8);

(e) the importance of personal and general deterrence as sentencing factors;

(f) the general standards of sentencing revealed by prior cases with at least some features comparable to the respondent's offending; and

I would resentence the appellant for each count in the indictment as follows:

1. I would, in re-exercising the sentencing discretion, impose a total effective sentence of 12 years' imprisonment. This sentence reflects my assessment of the overall criminality involved in all of the offences, viewed in their entirety, and after having regard to all relevant

circumstances, including those referable to the respondent personally, and the total effective sentences which have been imposed in cases with at least some features comparable to the respondent's overall offending.

1. I would, in the application of the totality principle, reduce the new sentence for count 1 from 5 years 6 months' imprisonment to 5 years' imprisonment. This revised sentence of 5 years' imprisonment for count 1 is the head sentence. The new sentence for count 3 (4 years' imprisonment) and the new sentence for count 8 (3 years' imprisonment) should be served cumulatively upon each other and cumulatively upon the revised sentence for count 1. The other new sentences should be served concurrently with each other and concurrently with the revised sentence for count 1.
2. The new total effective sentence of 12 years' imprisonment is backdated to 6 July 2017. A parole eligibility order should be made. The respondent will be eligible to be considered for release on parole upon serving 10 years in custody calculated from 6 July 2017.

1. This is a State appeal against sentence.
2. Late in the afternoon of 6 July 2017, the respondent went to his grandparents' house in Byford. In the house at the time were his grandmother, P, who was 73 years of age, and his half-sister, E, who was 17.[2] After entering the home, and without warning, he attacked P, doing aggravated grievous bodily harm to her. He then assaulted E, doing her aggravated bodily harm. He then committed six acts of aggravated sexual penetration upon E and a further act in which he attempted to commit aggravated sexual penetration upon E.[3] He committed the acts of sexual violence against E in the presence of P.[4]
3. The respondent then left the house and travelled to Collie, where he was arrested. He voluntarily participated in an electronically recorded interview where he made full admissions.[5]
4. The respondent was charged on indictment in the District Court with nine offences. Count 1 alleged that he did grievous bodily harm to P in circumstances of aggravation, namely that he was in a family and

domestic relationship with P and that she was over the age of 60 years, contrary to s 297(3) of the Criminal Code (WA) (the Code). Count 2 alleged that the respondent unlawfully assaulted E and thereby did her bodily harm in the circumstance of aggravation that he was in a family and domestic relationship with E, contrary to s 317(1) of the Code. Count 3 alleged that the respondent sexually penetrated E without her consent by inserting his fingers into her vagina in circumstances of aggravation, namely that he threatened to kill E and that he was in a family and domestic relationship with her, contrary to s 326 of the Code.[6] Count 4 alleged that the respondent sexually penetrated E without her consent by performing cunnilingus on her in circumstances of aggravation, namely that the respondent threatened to kill E and that he was in a family and domestic relationship with her, contrary to s 326 of the Code. Count 5 alleged that the respondent sexually penetrated E without her consent by again performing cunnilingus on E in the same circumstances of aggravation as alleged in count 4. Count 6 alleged that the respondent sexually penetrated E without her consent by inserting his penis into her vagina in circumstances of aggravation, namely that the respondent did bodily harm to E, threatened to kill her and was in a family and domestic relationship with her, contrary to s 326 of the Code. Count 7 alleged that the respondent sexually penetrated E without her consent by inserting his fingers into her anus in the same circumstances of aggravation as in count 6. Count 8 alleged that the respondent attempted to sexually penetrate E without her consent by attempting to insert his penis into her anus in circumstances of aggravation, namely that he threatened to kill E and that he was in a family and domestic relationship with E, contrary to s 326, read with s 552, of the Code. Count 9 alleged that the respondent sexually penetrated E without her consent by inserting his fingers into her vagina in the same circumstances of aggravation as in count 8, contrary to s 326 of the Code.[7]

1. On 13 February 2018, the respondent pleaded guilty to all nine charges in the indictment and was duly convicted of each of them.[8] Later that day, Stevenson DCJ imposed the following sentences of immediate imprisonment:[9]

(Att) aggravated sexual penetration without consent

1. The total effective sentence imposed by the learned sentencing judge was 6 years 6 months' imprisonment with eligibility for parole to commence on 6 July 2017. His Honour also made a lifetime restraining order protecting each of P and E.[10]
2. The appellant appeals to this court on three grounds. Ground 1 alleges that the sentence imposed on count 1 was manifestly inadequate. Ground 2 alleges that the individual sentences imposed on counts 3, 4, 5, 7, 8 and 9 was manifestly inadequate. Ground 3 alleges that the total effective sentence infringed the first limb of the totality principle.[11]
3. On 5 May 2018, leave to appeal was granted on the three grounds sought to be relied upon by the appellant.[12]
4. For the reasons which follow, we are of the view that the State's appeal should be allowed and that the respondent should be resentenced. Our reasons for these conclusions are as follows.

1. The respondent did not challenge the prosecutor's statement of the facts of the offending,[13] which may be summarised in this way.
2. At the time of the offences, the respondent was 24 years old and weighed approximately 125 kg.[14] P, who was aged 73, is his grandmother. E, who was aged 17, is his half-sister. Both victims are significantly smaller in size than the respondent. At the time, E had not previously engaged in sexual intercourse and was not on any form of contraception. Both victims lived in the same house which was situated around the corner from where the respondent lived with his uncle.[15]
3. The respondent was a frequent visitor to the house and had a good relationship with both P and E.
4. At about lunchtime on 6 July 2017, the respondent went to his grandparents' house to install their telephone system. He then returned to his home in the mid-afternoon. Shortly afterwards, E visited the respondent and they watched a movie together without incident. While watching the movie, the respondent drank two or three longneck bottles of beer. E left the respondent's house in the late afternoon and returned to her grandparents' home.[16]
5. At about 5.30 pm, the respondent walked to his grandparents' house. At that time, P and E were home, but the respondent's grandfather was at the airport picking up the respondent's uncle. The respondent was aware of this at the time.[17]
6. P let the respondent into the house. After a short conversation with P, the respondent asked to use her bathroom scales which she kept in the en suite bathroom to the master bedroom. While weighing himself, the respondent called to P to come into the bathroom, which she did. After P stood on the scales the respondent, without warning, grabbed P by the neck and threw her to the ground. He then punched her repeatedly to her face and head. The combination of these assaults resulted in P suffering multiple injuries, including extensive bleeding, bruising and swelling to the right side of her face, a 3 cm laceration to the right eyebrow and behind the right ear, a subconjunctival haemorrhage to the right eye, multiple intracranial haemorrhages, a comminuted right cheekbone fracture, a superficial skin laceration to the left arm and repeated vomiting. These injuries were of such a nature as to endanger or be likely to endanger life and were of such a nature as to cause or be likely to cause permanent injury to P's health (count 1).[18]
7. The respondent then entered E's room. He told her that something was wrong with P. He assaulted E by grabbing her hair and punching her in the face and the back of the head repeatedly, thereby causing her bodily harm (count 2). E fell to the floor, where the respondent smashed a teacup over her head. While holding her by the hair, the respondent repeatedly told E to shut up and do as she was told. He then dragged E to the front of the house by her hair, which caused her T-shirt and bra to ride up her body. E asked if she could fix her clothing. The respondent told her to take her T-shirt and bra off. Fearing for her life, E did as she was told.[19]
8. Eventually, the respondent dragged E by the hair into the master bedroom where P was still lying on the en suite floor. The respondent showed E what he had done to P. E started to scream and cry. At this point, P moaned and moved as if to get up. The respondent kicked her in the ribs and back. When E tried to stop the respondent by punching him in the groin, he grabbed her by the hair, pushed her into a wall and said, 'If you try that again I will kill you'. This was taken to be a threat which operated throughout the course of the offending against E.[20]
9. The respondent had E remove her remaining clothing and sit on P's face. The respondent directed E to put her underwear in P's mouth, which she refused to do. However, when the respondent threatened to kill E if she did not do as she was told, E put her underwear in P's mouth. The respondent then put his hand on top of the underwear in P's mouth and held it there.[21]
10. The respondent then dragged E into the lounge room and back to the master bedroom where P was kneeling on all fours. E unsuccessfully attempted to calm the respondent down. The respondent directed E to kick P. Out of fear, she did so.[22]
11. The respondent then told E to lie down on the bed and demanded that she spread her legs. He threatened to kill her if she did not comply. While on the bed with her legs spread, the respondent inserted his fingers into E's vagina (count 3). The respondent then performed cunnilingus on her without her consent while masturbating himself (count 4).[23]
12. The respondent stopped and then grabbed some moisturiser which he placed around E's anus and vagina, as well as on his penis, with the intention of penetrating her. While this was happening, P had dragged herself up on to her knees and told the respondent that he could not do that to his little sister. The respondent told both P and E to shut up. He again masturbated himself and simultaneously performed cunnilingus on E (count 5). At the time, the respondent was watching the clock on the bedside table as he was conscious that his grandfather would be returning soon from the airport.[24]
13. P asked the respondent if she could go to the bathroom and wash her face. The respondent refused this request and told P not to move. He then attempted to penetrate E's vagina with his penis for about five minutes, but was unable to do so because his penis was not fully erect.[25]
14. Eventually, the respondent was able to penetrate E's vagina with his penis. He then engaged in sexual intercourse with her for about five to 10 minutes (count 6). In the course of this, he kissed E and he urged her to 'tongue him' in order to 'get him going'. This act of sexual intercourse caused E to suffer pain, discomfort and vaginal bleeding in the 24-hour period after the assault.[26]
15. The respondent then directed E to flip over and get on her knees, with the intention of penetrating her anus. E complied out of fear for her life and that of her grandmother. The respondent inserted his fingers into E's anus, causing her pain and discomfort which E described as being like a knife being inserted into that part of her body (count 7).[27]
16. The respondent then attempted several times to insert his penis into E's anus without success (count 8).[28]
17. The respondent then told E to lie on her back and that, if she did not do so, he would kill P. P pleaded with the respondent to stop. He replied, 'If you don't shut up, I will choke you'. The respondent instructed E to masturbate herself and touch her clitoris, which she did out of fear. He told her, 'Close your mouth and do high-pitched moans that [sic] the little slut you are'. Again, E complied out of fear. As she did so, the respondent continued to masturbate himself until he ejaculated on E's thigh. He then put his fingers in the semen and inserted his fingers into E's vagina, leaving them inside for about a minute (count 9).[29]
18. Throughout the course of the offences committed against E, he demanded that E roleplay, including by acting as though she was enjoying her sexual ordeal. He directed her to pretend that she was moaning and showing signs of pleasure while rubbing her vagina. He also asked her to 'twerk' and 'speak nasty'.[30]
19. He repeatedly told E and P that if they did not do what he said, he would kill them. The sexual assaults against E were witnessed by P.[31]
20. Eventually, the respondent dressed himself and grabbed E from the bed and dragged her, by her hair, into the laundry. He asked her where the keys were to their grandfather's car. The respondent took the keys and collected two handsets for the landline telephone in the house as well as E's mobile telephone. He then directed E and P to get into the shower together. He told both of them, 'I'm going to kill myself. Goodbye'. He then fled from the house.[32]
21. The respondent drove his grandfather's car away from the house. As he drove away, he threw E's mobile telephone out of the window so it could not be tracked by GPS.[33]
22. Meanwhile, E, using a spare telephone in the shed, contacted police who attended shortly afterwards. Both victims were conveyed to Armadale Hospital.[34]
23. We have already described P's injuries. E was observed to have suffered the following injuries: bleeding and bruising to the nose, face and scalp; tenderness to the right hand; five parallel petechial linear bruises to the left upper arm and bruising to the hands, knees, legs and arms; vaginal bleeding and a stinging sensation when passing urine.[35]
24. Police officers subsequently conducted a search of the respondent's bedroom at his uncle's house. There, the police located a number of black cable ties on his bed and a smoking implement for cannabis on the bedside table.[36]

1. The respondent was interviewed by detectives in the early hours of 7 July 2017. He told the detectives that, 'a lot of anger built up and I just ended up snapping and at the wrong people and at the wrong time'.[37] He told the detectives how he had been in a long-distance relationship with a woman in the United States of America who had taken advantage of him.[38] He also explained how, for a period of time, he had been living with his mother, during which time they smoked cannabis, including the synthetic cannabis, Kronic.[39] Eventually, he along with E, went to live with their grandparents and ultimately he moved in with his uncle.
2. It is clear from the interview that, up until the commission of the offences, he had a good relationship with E and his grandparents, referring to his grandparents as 'amazing people'.[40]
3. When asked why he went over to his grandparents' house, he said that he did so '[w]ith the intention of losing it'.[41]
4. He admitted the offending against P and E. He denied that he did so for sexual gratification; rather, 'It was just, just the anger and everything ...'.[42]
5. At other times in the interview, he said that he felt sexually frustrated by the woman he had formed a relationship with online. He admitted to watching pornography since he was 12 years of age and that, more recently, he had been viewing violent pornography. He expressed the view that pornography had played a part in his offending. He admitted that he had sexual fantasies about E, but had never thought that he would act on them.[43]

The respondent's personal history and the expert reports

1. The sentencing judge was provided with a pre-sentence report dated 24 October 2017, a psychological report by Ms Tanina Oliveri, a clinical and forensic psychologist, dated 15 October 2017, and a psychiatric report written by Dr Peter Wynn Owen, also dated 24 October 2017.
2. The respondent was 24 years of age when he committed the offences and almost 25 years and 6 months when he was sentenced.[44]
3. The learned sentencing judge referred to Dr Wynn Owen's description of the respondent's personal circumstances.[45]
4. The respondent's parents separated when he was less than 2 years of age. He and his mother did not have stable accommodation and he lived, on several occasions, with his grandparents, his uncle and with friends. At times, he and E were left with their grandparents while his mother lived elsewhere.[46]
5. The respondent was bullied at both primary and secondary school. He completed year 10 and found casual work in a variety of roles. However, for about 18 months prior to the commission of the offences, he had been unemployed.[47]
6. As a result of the bullying he experienced at school he became socially isolated and retreated into a world of computer gaming.[48] He accessed pornography on the internet from a young age and became sexually aroused by explicit pornography depicting incest and bondage.[49] In the weeks prior to the offences, his alcohol and illicit drug use escalated. Dr Wynn Owen noted in his report that the respondent was intoxicated with both alcohol and cannabis at the time of the offending.[50]
7. In Dr Wynn Owen's opinion, the respondent does not have a mental illness, nor does he have a personality disorder.[51] He went on to state:[52]

The offences occurred in the context of disinhibition through alcohol use leading to the emergence of unmanaged/uncontrolled sexually violent urges in a person whose sexual fantasies are of sexually violent incest and who has exposed himself to such imagery (via the internet) many times a day over some years and has no alternative sexual or intimacy outlet.

1. In Dr Wynn Owen's opinion, the respondent is at risk of future offending if he continues to use substances, including alcohol. Further, his high use of incest and sadistic pornography which normalises such behaviours, if it continues, will contribute to the risk of reoffending.[53]
2. Ms Oliveri identified a number of factors likely to have contributed to the offences, including:[54]
   • chronic sexual preoccupation;
   • excessive masturbation and use of pornography, including extreme forms of pornography depicting incest, rape and violence;
   • sexually deviant fantasies including a sexual fixation on and attraction to his half-sisters;
   • repeated experiences of rejection and abandonment;
   • significant and unresolved underlying anger and resentment;
   • a projection of his anger onto the victims;
   • poor emotional regulation, stress resilience and coping skills;
   • chronic depression, anxiety and poor self-esteem;
   • a desire for sexual gratification and contact;
   • social isolation and lack of success in relationships;
   • no sexual experience with others as an adolescent or adult;
   • chronic substance misuse issues and lowered inhibitions due to substances;
   • feelings of inadequacy and worthlessness and lack of success in his life;
   • feeling powerless and a lack of control in his life and a desire to exert power and control over others; and
   • an unstable and dysfunctional lifestyle.
3. Ms Oliveri assessed the respondent to be a moderate/high risk of reoffending in a sexual manner, noting that the respondent agreed to comply with treatment and supervision requirements.[55]
4. The respondent has no prior criminal convictions.[56]

1. The sentencing judge correctly characterised the offending as extremely serious. His Honour, also correctly, described the offences as involving a sustained, prolonged, vicious and violent attack on P and E. His Honour rightly observed that the respondent's conduct had been 'obviously degrading' and that he had inflicted serious physical injuries, particularly on P, and left both his grandmother and half-sister psychologically traumatised.[57]
2. His Honour said that the commission of the offences was consistent with fantasies the respondent had as a result of watching pornography of a similar type and nature.[58] His Honour accepted that but for the consumption of alcohol and use of cannabis which disinhibited him, the respondent would not have conducted himself, to the extent that he was prepared to act out his sexual fantasies as a result of his pent-up sexual frustrations.[59]
3. His Honour noted that P still had an active bleed on her brain and was still receiving treatment for her physical injuries. E was still receiving weekly counselling to deal with the trauma caused by the respondent.[60]
4. The sentencing judge acknowledged the respondent's pleas of guilty and, by reason of the pleas, gave a reduction of 20% pursuant to s 9AA of the Sentencing Act.[61] In addition to the pleas of guilty, his Honour gave mitigating weight to the respondent's cooperation with the police, his remorse, shame and embarrassment for what he did to his victims, and the respondent's self-awareness and insight.[62] His Honour also seems to have made allowance for the bullying the respondent experienced at school.[63]
5. His Honour expressed concern that the respondent was at risk of reoffending, particularly if he did not address his alcohol and cannabis use.[64]
6. The learned sentencing judge said that there was a need for the sentences to give effect to both personal and general deterrence.[65]
7. The sentencing judge imposed the individual sentences for each count that his Honour regarded as appropriate. His Honour then had regard to both limbs of the totality principle and the so-called one transaction rule.[66]
8. Having regard to these sentencing considerations, his Honour stated that, in his opinion, the appropriate total effective sentence was 6 years and 6 months' imprisonment.[67]
9. It is clear from the sentencing remarks that his Honour did not adjust the individual sentences for reasons of totality. His Honour first identified what he considered to be the appropriate sentence for each count,[68] then referred to the totality principle,[69] identified his view of total effective sentence[70] and, finally, identified the orders for concurrency and cumulation that would achieve that total effective sentence.[71]

1. The grounds of appeal are as follows:
   1. The sentencing judge erred in law by imposing a sentence in relation to count (1), an offence of unlawfully doing grievous bodily harm in circumstances of aggravation, that was so inadequate as to manifest error, having regard to:

(a) the maximum penalty for the offence;

(b) the serious nature of the injuries inflicted upon the victim;

(c) the exceptionally serious nature of the offence and the circumstances in which it was committed;

(d) the need for the sentence to adequately reflect general and personal deterrence, as well as appropriate punishment for offending of this nature;

(e) the personal circumstances of the respondent; and

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

1. The sentencing judge erred in law by imposing sentences in relation to counts (3), (4), (5), (7), (8) and (9) that were so inadequate as to manifest error, having regard to:

(a) the maximum penalty for the offences;

(b) the exceptionally serious nature of the offences and the circumstances in which they were committed;

(c) the need for the sentences to adequately reflect general and personal deterrence, as well as appropriate punishment for offending of this nature;

(d) the personal circumstances of the respondent; and

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

1. The sentencing judge erred in law by imposing a total effective sentence of six years six months' imprisonment that infringed the first limb of the totality principle.

1. The written and oral submissions of the State contend that the individual sentences challenged in grounds 1 and 2 were manifestly inadequate, having regard to the gravity of the offending, and cannot be justified by the mitigating factors identified by the learned sentencing judge. In support of ground 3, it was submitted that the total effective sentence infringed the first limb of the totality principle because it did not properly reflect the respondent's overall criminality. The State contended that the alleged inadequate individual sentences explained and led to the imposition of an erroneous total effective sentence.[72]
2. Senior counsel for the respondent conceded both the 'appalling' conduct of the respondent and that the total effective sentence that was imposed was 'particularly lenient'.[73] However, having regard to the respondent's pleas of guilty and what was said to be his youth and deprived background, this court should not intervene.[74]

1. The general principles applicable to this appeal are well established. They were recently restated by this court in The State of Western Australia v BKJ, where they were stated by the court in these terms:[75]

In The State of Western Australia v Wilson [[2015] WASCA 119], we explained the general principles applicable to a State appeal against sentence.

This court has no warrant to substitute its own opinion for that of the sentencing judge merely because it would have exercised the discretion differently: Lowndes v The Queen [[1999] HCA 29; [1999] HCA 29; (1999) 195 CLR 665 [15]]. This court can only intervene if it is demonstrated that the court below made a material error, either express or implied. There are special principles applicable to prosecution appeals. They are well established and need not be repeated, bearing in mind that the principle of double jeopardy which applied to State appeals has now been abolished: s 41(4)(b) Criminal Appeals Act 2004 (WA). This court has a residual discretion under s 31 of the Criminal Appeals Act to decline to allow an appeal against a sentence that is erroneously lenient.

The grounds of appeal allege implied rather than express error. Before an individual sentence can be said to be manifestly inadequate or the total effective sentence be found to infringe the totality principle, it must be established that the sentence is unreasonable or plainly unjust: House v The King [[1936] HCA 40; (1936) 55 CLR 499] and Barbaro v The Queen [[2014] HCA 2; [2014] HCA 2; (2014) 253 CLR 58 [26]].

The orthodox approach to the question of manifest inadequacy is to examine the sentence having regard to the maximum sentence for the offence, the gravity of the offending conduct in the scale of seriousness, sentences imposed in other appellate cases and the personal circumstances of the offender: Chan v The Queen [(1989) 38 A Crim R 337, 342] and Munda v The State of Western Australia [[2013] HCA 38; (2013) 249 CLR 600 [33]].

The first limb of the totality principle requires that the total effective sentence bear a proper relationship to the overall criminality involved in all the offences, viewed in their entirety and having regard to the circumstances of the case, including those referable to the offender personally: Roffey v The State of Western Australia [[2007] WASCA 246 [24]].

A relevant factor in the consideration of the appellant's grounds of appeal is the range of sentences imposed in comparable cases. Such cases are a yardstick against which the sentences in question may be compared. However, the range of sentences customarily imposed does not mark out the boundaries of the exercise of a sound sentencing discretion in an individual case. In other words, the guidance that is afforded by comparable cases is flexible rather than rigid. Ultimately, each case depends upon its own facts and circumstances.

Ground 1: was the sentence imposed on count 1 manifestly inadequate?

1. The maximum penalty for an offence of aggravated grievous bodily harm is 14 years' imprisonment.
2. The circumstances surrounding the commission of this offence have been described. They are self-evidently extremely serious. The victim was the respondent's grandmother. She was 73 years old at the time of the offending. The respondent was much younger than his grandmother and there was a significant size difference between him and his victim. P was completely vulnerable. The respondent attacked her without warning. She had no ability or means with which to fight back.
3. P was repeatedly punched to her face and head and kicked. She suffered a combination of injuries which endangered, or were likely to endanger, her life and were of such a nature as to cause, or be likely to cause, permanent injury to her health. P was traumatized by what occurred. At the time the respondent was sentenced, P was still receiving medical and psychological treatment.
4. The acts of the respondent can fairly be characterised as callous, brutal and sustained. He used the attack upon P as the reason to enter E's room and then begin the attack upon her. The respondent did nothing to help P, despite her injuries. Instead, he forced E to humiliate and then kick P. The respondent forced P to witness the respondent's sexual attacks on E.
5. It is well established that in determining the criminality of an offence which involves the infliction of grievous bodily harm there are, in general, three matters of significance. First, there is the nature of the harm which is inflicted. Second, there is the nature of the act which causes the harm. Third, there is the background to, and circumstances of, the offence.[76] When each of these criteria is applied to the present case, it is clear that the offending was at the upper end of the range of seriousness for offences of aggravated grievous bodily harm.
6. In Trompler (a case of non-aggravated grievous bodily harm, which carries a maximum penalty of 10 years' imprisonment),[77] a sentencing range of between 3 to 5 years' imprisonment for offences towards the upper end of seriousness, although not of a most serious kind, was identified.[78] It is to be noted that the sentence imposed in the present case, 3 years' imprisonment, is at the lowest end of the sentencing range identified in Trompler for offences which carry a 10 year maximum.
7. We have had regard to the outcomes of cases decided by this court in respect of sentences for offences of aggravated grievous bodily harm including Hansen v The State of Western Australia;[79] The State of Western Australia v Ellement;[80] The State of Western Australia v Smith;[81] The State of Western Australia v WTG[82] and The State of Western Australia v Yamalulu.[83] It is unnecessary to set out the facts and circumstances of each of these cases. It is enough to say that the outcomes in these cases support the State's contention that the sentence on count 1 was manifestly inadequate.
8. The most significant mitigating factors were the appellant's plea of guilty and his remorse. The respondent was entitled to some mitigation for his prior good record, his relatively young age and his negative familial experiences and the bullying to which he was subjected. Against these factors must be weighed the respondent's elevated risk of reoffending, particularly if he does not address his problematic alcohol and cannabis use.
9. In our opinion, the sentence of 3 years' imprisonment imposed on count 1 was not merely lenient, it was manifestly inadequate. It is an inadequate reflection of the extremely serious circumstances in which the offence was committed and the negative effects that the commission of the offence has had upon the victim who was highly vulnerable. Even when all of the mitigating factors are taken into account, the sentence does not provide adequate punishment, denunciation or deterrence. When compared with the sentencing standards identified in Trompler, and having regard to the other cases that were cited, its inadequacy is highlighted. The sentence is, in all of the circumstances, unreasonable and plainly unjust. Inferred error has been established. Ground 1 has been made out. The sentence imposed on count 1 must be set aside and the respondent must be resentenced on all counts, as explained in [108] below.

Ground 2 - were the individual sentences imposed on counts 3, 4, 5, 7, 8 and 9 manifestly inadequate?

1. We will not repeat the facts of the respondent's offending with respect to counts 3, 4, 5, 7, 8 and 9. Save for count 8, which alleged an attempt, all of these offences were constituted by the respondent sexually penetrating E in circumstances of aggravation. It may be observed that the State does not allege that the sentence of 5 years' imprisonment in respect of count 6, which involved a penile penetration of E's vagina in circumstances of aggravation, was manifestly inadequate. The maximum penalty for counts 3, 4, 5, 7 and 9 is 20 years' imprisonment and, on count 8, is 10 years' imprisonment.
2. Each of the offences challenged by the State was a very serious example of its type. The respondent sexually penetrated his teenage half-sister or attempted to sexually penetrate her. He did so with a high level of violence and while threatening to kill her. E's humiliation and distress in each case was compounded by the respondent committing the offence in the presence of P. The respondent traumatised E, who had not previously engaged in sexual intercourse. The respondent expose her to the risk of pregnancy. Each of the offences challenged in ground 2 was cruel and was committed without a modicum of pity for the ordeal he inflicted upon E. The respondent's forceful penetration of E's vagina and anus caused significant pain, bleeding from the vagina and discomfort. She described his penile/vaginal penetration as feeling like she was 'being ripped open'[84] and his digital/anal penetration of her feeling 'like a knife'.[85]
3. Of course, E was younger than the respondent and physically no match for him. E harboured very real fear that the respondent would, as he threatened, kill her.
4. As Wheeler JA pointed out in Warburton v The State of Western Australia,[86] even when there is no unusual or aggravating factors, the offence of sexual penetration without consent is a serious invasion of the victim's right to bodily integrity and autonomy. While there is no hierarchy of sexual penetration and each offence must be determined on its own particular circumstances, it is accepted that, generally, penile penetration is often more serious than digital penetration or cunnilingus.[87]
5. It is well established that there is no tariff for the offence of sexual penetration without consent. Steytler P observed in The State of Western Australia v Akizuki[88] that an average starting point for an unaggravated single offence of sexual penile penetration of the vagina without consent was around 4 years 8 months' imprisonment before taking into account any mitigating factors. However, his Honour noted that the range of potentially aggravating factors is so huge that such features can dramatically increase the sentence imposed or have little effect. Similar reasoning applied to potential mitigating factors.[89] In Warburton, Wheeler JA noted that the sentences for unaggravated offences of sexual penetration without consent, at around 4 to 6 years' imprisonment (post-transitional), was a common range of sentences without taking into account any particular mitigating or aggravating factors.[90]
6. In The State of Western Australia v Richards,[91] Steytler P observed that an unaggravated offence of sexual penetration without consent, where there was no plea of guilty or other exceptional circumstances, could be expected to result in a term of 5 to 6 years' imprisonment, after taking into account the transitional provisions which existed at that time.[92]
7. The State, in its written submissions, referred to Royer v The State of Western Australia;[93] Lindsay v The State of Western Australia;[94] Juma v The State of Western Australia;[95] Ugle v The State of Western Australia[96] and Williams v The State of Western Australia.[97] In the context of a claim of manifest inadequacy, these cases are of little assistance because, save for Lindsay, there was no challenge to the individual sentences that were imposed.
8. In Lindsay, the offender was convicted on his pleas of guilty of three counts of aggravated sexual penetration and sentenced to individual terms of 6 years (count 6), 7 years (count 7) and 8 years (count 8). All of the sentences were ordered to be served concurrently, resulting in a total effective sentence of 8 years' imprisonment.[98] The offender and the complainant had been in a volatile domestic relationship. In breach of a restraining order, and while the offender was significantly intoxicated, he forcibly penetrated the victim's vagina with his finger, causing considerable pain. He then pushed his penis into the victim's mouth.[99] After urinating in her face and punching her, he again, with violence, inserted his penis into her mouth. The offender was 32 at the time of sentencing and had a relatively extensive record of prior offending.[100] On appeal, the offender's claims of manifest excess and a breach of the first limb of the totality principle failed.[101]
9. In regard to the current offending, none of the challenged sentences were moderated by operation of the totality principle. Their conceded leniency cannot be justified by the mitigating factors which have already been identified. The sentences imposed on counts 3, 4, 5 and 9 are 7.5% of the maximum, the sentence imposed on count 7 is 10% of the maximum, and the sentence imposed on count 8 is 15% of the maximum.
10. The individual sentences which have been challenged simply fail to reflect the seriousness of the offence and do not provide a proper measure of punishment, denunciation and deterrence.
11. The allegation of manifest inadequacy has been made out with respect to each of counts 3, 4, 5, 7, 8 and 9. Each sentence was unreasonable or plainly unjust. Implied error has been demonstrated. Ground 2 has been made out. The sentences imposed on counts 3, 4, 5, 7, 8 and 9 must be set aside and the respondent must be resentenced on all counts.

Ground 3: did the total effective sentence infringe the first limb of the totality principle?

1. As grounds 1 and 2 have been upheld, this court must set aside the individual sentence on counts 1, 3, 4, 5, 7, 8 and 9 and sentence the respondent afresh. Necessarily, this will involve this court assessing for itself the appropriate total effective sentence. Accordingly, it is not necessary to decide ground 3. As will become apparent, we would impose a total effective sentence substantially longer than that imposed at first instance. Indeed, for the offences against E alone, we would impose a longer total effective sentence than the 6 years 6 months' imprisonment imposed on the appellant for the whole of his offending.

1. This court has a residual discretion to dismiss a State appeal even though a ground or grounds of appeal have been established. It is for the State to demonstrate that the residual discretion should not be invoked. In this case, the respondent did not suggest that, if one or more of the grounds of appeal were established, this court should exercise the residual discretion to dismiss the State's appeal. There is nothing in the circumstances of this case which would warrant the exercise of the discretion. The individual sentences that were imposed were very clearly inadequate. Appellate intervention is required to impose sentences which properly reflect the seriousness of the offences and to ensure that proper standards of sentencing are observed for offences of the kind committed by the respondent.

1. The respondent must be resentenced on all counts in accordance with the principles set out in McGarry v The Queen.[102] See Sathitpittayayudh v The State of Western Australia[103] and Gaskell v The State of Western Australia.[104]
2. We will not repeat the facts of the offending, the available maximum penalty, the respondent's antecedents or the details of the expert reports.
3. The overarching sentencing principle stated in s 6(1) of the Sentencing Act 1995 (WA) requires a sentence to be commensurate with the seriousness of the offence. The seriousness of the offence is determined by taking into account:

(b) the circumstances of the commission of the offence, including the vulnerability of any victim of the offence;

1. Each of the offences committed by the respondent was extremely serious. We repeat what we have already said as to the serious features of the appellant's offending. In each case:

(b) there was a high level of violence, both actual and threatened;

(c) the victim was traumatised and continues to suffer the effects of what the respondent did to her; and

(d) the respondent degraded and humiliated the victim.

1. The most significant mitigating factor is the respondent's pleas of guilty. We agree with the primary judge's assessment that a reduction pursuant to s 9AA of the Sentencing Act of 20% is appropriate. Other mitigating factors are the respondent's remorse, insight into his offending, his relative youth, his troubled upbringing and the bullying he experienced at school. The sentences we would impose have been reduced to reflect the mitigating factors we have mentioned.
2. The expert reports reveal that the respondent has an elevated risk of reoffending, particularly if he does not address his alcohol and illicit drug problem. It is to be hoped that the respondent takes advantage of any programs which are offered to him, designed to deal with these problems, along with his unresolved underlying anger and resentment and his problematic use of extreme forms of pornography.
3. Each sentence must provide appropriate punishment, denunciation and general and personal deterrence.
4. Having regard to all relevant sentencing considerations, we would impose upon the respondent the following individual sentences of immediate imprisonment.

1. We now turn to questions of totality. While all of the offences were committed in the one incident, some degree of cumulacy is required to reflect the fact that the respondent committed offences against two victims. Further, there should be some accumulation of the sentences imposed in respect of the offences committed against E to properly reflect their gravity, extent and persistent character. Accordingly, we would order that the sentences imposed on counts 1, 5 and 9 be served cumulatively upon each other. All of the other sentences should be served concurrently with each other, and concurrently with the accumulated sentences. This would result in a total effective sentence of 15 years' imprisonment. However, having taken 'a last look' to ensure that the total effective sentence properly measures the respondent's overall criminality, we have decided that the appropriate total effective sentence is 12 years' imprisonment. To achieve this, and only for the purpose of totality, we would reduce the terms of imprisonment on each of counts 1, 5 and 9 to 4 years' imprisonment. The total effective sentence should be backdated to commence on 6 July 2017, and the respondent should remain eligible for parole.
2. The orders that we would make are as follows:
   1. The appeal is allowed.
   2. The sentences imposed on the appellant are set aside.
   3. The respondent is resentenced on those counts as follows:

1. The sentences imposed on counts 1, 5 and 9 are to be served cumulatively upon each other. All other sentences, including the sentences on counts 2 and 6, are to be served concurrently with each other and concurrently with the accumulated sentences.
2. Thus, the total effective sentence imposed upon the respondent is 12 years' imprisonment.
3. The total effective sentence is backdated to 6 July 2017.
4. The respondent is eligible for parole.

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

[1] CMB v Attorney General (NSW) [2015] HCA 9; (2015) 256 CLR 346 [33] - [34] (French CJ & Gageler J) [66] (Kiefel, Bell & Keane JJ).

[6] The sexual penetration alleged in the indictment is digital penetration of E's vagina: WAB 49; but the respondent was inadvertently arraigned on count 3 as penile penetration of E's vagina: ts 5, WAB 57. It is not alleged that this led to any sentencing error.

[45] ts 33, WAB 85, Dr Wynn Owen's report, personal and family history.

[46] Dr Wynn Owen's report, personal and family history.

[47] Dr Wynn Owen's report, personal and family history.

[48] Dr Wynn Owen's report, personal and family history.

[49] Dr Wynn Owen's report, past psychiatric history.

[50] Dr Wynn Owen's report, defendant's account of the offence, history of alcohol/substance use, opinion.

[51] Dr Wynn Owen's report, psychiatric diagnosis.

[52] Dr Wynn Owen's report, relationship between offending and mental state.

[53] Dr Wynn Owen's report, reoffending risk.

[75] The State of Western Australia v BKJ [2018] WASCA 136 [82] - [87].

[76] Trompler v The State of Western Australia [2008] WASCA 265 [9] - [11].

[77] Trompler [4], [19], [22], [34].

[79] Hansen v The State of Western Australia [2014] WASCA 229.

[80] The State of Western Australia v Ellement [2016] WASCA 1.

[81] The State of Western Australia v Smith [2016] WASCA 153.

[82] The State of Western Australia v WTG [2016] WASCA 175.

[83] The State of Western Australia v Yamalulu [2019] WASCA 6.

[86] Warburton v The State of Western Australia [2009] WASCA 113; (2009) 196 A Crim R 361 [11].

[87] C v The State of Western Australia [2006] WASCA 261 [32].

[88] The State of Western Australia v Akizuki [2008] WASCA 267; (2008) 192 A Crim R 373.

[89] The State of Western Australia v Akizuki [68(1)] - [68(2)].

[91] The State of Western Australia v Richards [2008] WASCA 134; (2008) 37 WAR 229.

[92] The State of Western Australia v Richards [49]. See also NPA v The State of Western Australia [2018] WASCA 131 [51].

[93] Royer v The State of Western Australia [2009] WASCA 139; (2009) 197 A Crim R 319.

[94] Lindsay v The State of Western Australia [2010] WASCA 142.

[95] Juma v The State of Western Australia [2011] WASCA 54.

[96] Ugle v The State of Western Australia [2012] WASCA 104; (2012) 223 A Crim R 115.

[97] Williams v The State of Western Australia [2015] WASCA 110.

[102] McGarry v The Queen [2001] HCA 62; (2001) 207 CLR 121 [9].

[103] Sathitpittayayudh v The State of Western Australia [2015] WASCA 152 [28].

[104] Gaskell v The State of Western Australia [2018] WASCA 8 [152].