1 STEYTLER P: The appellant appeals, by leave, against the sentences imposed upon him arising out of his conviction, after a trial, on four counts of sexual offences against a child. He was sentenced to a total term of 5 years and 6 months' imprisonment with eligibility for parole.

2 The first and second offences charged took place on an unknown date between 27 March 2003 and 31 December 2003. The complainant had been lying in her mother's bed watching television. She was wearing a singlet and boxer shorts. The appellant was lying next to her. He put his hand inside her pants and rubbed her vagina with his fingers. This gave rise to count 1 on the indictment. He then put his finger or fingers inside her labia majora and thereby sexually penetrated her. This was count 2 on the indictment. The conduct the subject of counts 1 and 2 went on for about 10 minutes and only ceased when the complainant's brother came into the room. The complainant was then 12 years old. The appellant, who had by then been in a relationship with the complainant's mother for about 5 years and whose role was that of de facto father to the complainant, was then 50 years old.

3 The third offence charged took place when the family went to Lancelin over the Easter holidays in 2004. The complainant had been playing in the sand outside the hut in which the family were staying. It was then dark. On her way back to the hut she tripped and fell on her back. The appellant, who was nearby, got on top of her and pinned her down. He said to her, "I want to suck your tit". He then pulled her bathers top down, exposing her breast, and tried to suck her breast by moving his head closer and opening his mouth. The complainant struggled and pushed him away. Not surprisingly, the incident shocked and frightened her. She was then 13 years old.

4 The fourth offence took place between 13 July and 13 August 2004 at the family home in Yangebup. The complainant was then preparing to go to Sydney for an ice skating championship. She needed spending money. She was in the lounge room, playing. The appellant came into the room and said to her, "If I give you $50, will you let me touch your boob?". The complainant said no and the appellant asked her to think about it. The complainant was then still 13 years old.

5 Some time later, the complainant told one of the adults at her school what had happened. A complaint was made to the police and charges were laid against the appellant. He denied the charges and pleaded not guilty at the trial. He suggested that the complainant had made up the complaints in order to separate the appellant and the complainant's mother, in the hope that her mother and natural father would get back together. There was no evidence to support that suggestion.

6 After taking into account the transitional provisions provided for by schedule 1 of the Sentencing Legislation Amendment and Repeal Act 2003 (WA), the sentencing Judge imposed a penalty of 2 years' imprisonment in respect of the indecent dealing the subject of count 1, a term of 3 years' imprisonment in respect of the penetration the subject of count 2, a term of 2 years' imprisonment in respect of the indecent dealing the subject of count 3 and a term of 2 years and 6 months' imprisonment in respect of the offence of inciting a child between the ages of 13 and 16 years to engage in sexual behaviour, being the offence that was the subject of count 4. The first three terms were ordered to be served concurrently and that imposed in respect of count 4 was ordered to be served cumulatively, giving rise to the total term of 5 years and 6 months' imprisonment. The maximum penalty provided for by the legislature (before application of the transitional provisions) was a term of 10 years' imprisonment in respect of count 1, 20 years in respect of count 2, 7 years in respect of count 3 and 14 years in respect of count 4.

7 The appellant was, at the time of sentencing, 53 years old. He was an interstate truck driver. There was evidence before the sentencing Judge to the effect that he had had a disturbed childhood. His father had committed suicide and he had been abused by his step-father. He had been married for 23 years and had two adult sons. The marriage ended amicably before he started his relationship with the complainant's mother. His criminal record revealed nothing of significance.

8 There are only two grounds of appeal in respect of which leave has been given.

9 The first of these is that the sentencing Judge erred in imposing a total sentence of 5 years and 6 months' imprisonment by failing to give adequate weight to factors which put the offences lower in the hierarchy of seriousness. There are six particulars to that ground. The first is that the indictment contained only one count of penetration, which was a digital penetration. The second is that, of the two offences of indecent dealing, only one involved actual touching. The third is that actual sexual touching occurred on only one occasion. The fourth is that there was no evidence that the appellant had attempted to groom the complainant to secure her co-operation to engage in sexual behaviour. The fifth is that the offence of incitement was a perfunctory and amateurish attempt to engage the complainant in sexual behaviour. The sixth is that the offences were opportunistic rather than predatory in nature.

10 The second surviving ground of appeal is that the sentencing Judge erred by indicating, as he did when sentencing the appellant, that the total sentence of 5 years and 6 months was equivalent to a sentence of 7 years and 3 months prior to the enactment of the transitional provisions.

11 In addressing ground 1, I should, first, mention some of the applicable principles.

12 The overriding principle is, of course, that an appellate court may not substitute its own opinion for that of the sentencing Judge merely because it would have exercised its discretion in a manner different from that in which the sentencing Judge did so. Some error in the exercise of the discretion must be shown, even if it be only that the court at first instance failed to impose a sentence which fell within the range of a sound exercise of the sentencing discretion: Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665 at 671 - 672 and Postiglione v The Queen [1997] HCA 26; (1997) 189 CLR 295 at 336 per Kirby J.

13 As to the seriousness of offending of the kind that occurred in this case, there is support in the cases for the proposition that digital penetration is ordinarily less serious than penile penetration: see, for example, LSC v The Queen [2003] WASCA 303 at [22]. However, it is plain that any sexual penetration of a child is a serious offence and that repeated instances of sexual offending against a child will ordinarily attract a severe sentence: see, for example, Price (1988) 33 A Crim R 359 and Sell v The Queen (1995) 15 WAR 240.

14 In Podirsky (1989) 43 A Crim R 404, Malcolm CJ said at 411, in the context of a case which involved penile penetration, that, where there is a series of offences of aggravated sexual assault involving a girl under 16 years, sentences within the range of 9 to 11 years are commonly imposed: see also Woods v The Queen (1994) 14 WAR 341. Allowing for the effect of the transitional provisions, this would equate to a range of between 6 and about 7 1/2 years' imprisonment. While offences involving digital penetration have generally attracted lower sentences (see, for example, Nelson v The Queen, unreported; CCA SCt of WA; Library No 950376; 1 June 1995; Ling v The Queen [2000] WASCA 129; Germain v The State of Western Australia [2004] WASCA 293; and H v The State of Western Australia [2006] WASCA 53), and while these vary significantly depending upon the nature of the offending, offences of that kind still warrant significant punishment. That is especially so in cases in which there is a serious breach of trust in an intra-familial context: Trescuri v The Queen [1999] WASCA 172 at [21]. Moreover, it has recently been said that the trend for sentencing in cases of intra-familial sexual assault or abuse is for sentences to be firmed up having regard to a greater understanding of the impact such offences have on young victims: see Playle v The Queen [2004] WASCA 86 at [38]; Bosworth v The Queen [2004] WASCA 43 at [20] and see also, more generally, VIM v Western Australia [2005] WASCA 233; (2005) 31 WAR 1 at [288] to [315] and PDS v The State of Western Australia [2006] WASCA 20 at [28].

15 In this case there was repeated offending, on three separate occasions, by a middle-aged man against a young child in respect of whom he was in a position of trust. There was no plea of guilty and the appellant sought to attack the credibility of the child in order to defend himself. Whilst this combination of factors warrants a severe sentence, in my respectful opinion the total sentence of 5 years and 6 months' imprisonment (8 years and 3 months' imprisonment prior to the operation of the transitional provisions) was so severe as to fall outside the range of an acceptable discretion. While serious, the appellant's offending could not be said to be at the higher end of the range of offences of this kind. There was, as counsel for the appellant submitted, only one instance of penetration and, even taking into account the gross breach of trust involved, and accepting that there is no "tariff" in cases of sexual assault, comparative cases suggest that for offences of the kind engaged in by the appellant, a total sentence a good deal lower than that imposed in this case might ordinarily be expected (even allowing for the fact that there was no plea of guilty), at least in the case of a first offender.

16 In Nelson, the appellant was convicted after a trial of one count of digital penetration of a 15-year-old girl. He was the de facto husband of her older sister. There was a considerable degree of violence involved. The trial Judge imposed a sentence of 6 years' imprisonment. On the appeal, the Court of Criminal Appeal, after reviewing sentences imposed in respect of offences of this kind, substituted a sentence of 4 years and 6 months' imprisonment, the equivalent of which, under the present regime, would be one of 3 years' imprisonment.

17 In Ling, the appellant, a 22-year-old man, was convicted after a trial of one count of aggravated indecent assault and one count of digital penetration of a 15-year-old girl. She was his sister-in-law. The offence involved some violence and a breach of trust. The appellant showed no remorse. On appeal, a total sentence of 6 years' imprisonment was set aside and replaced with one of 4 years and 6 months' imprisonment (again, the equivalent of 3 years' imprisonment under the present regime).

18 In Germain, the appellant, a 27-year-old man, was convicted on 3 counts of indecent dealing with a 12-year-old girl and also on 3 counts of sexual penetration (cunnilingus, digital penetration and fellatio) of the girl. The appellant was not in a position of trust, the offending involved no coercion and the appellant had pleaded guilty on the fast track. A total sentence of 2 years and 8 months' imprisonment was upheld on appeal.

19 Having regard for these cases (and the other cases to which I have earlier referred), it seems to me that the total sentence imposed in the present case was manifestly excessive and that the appropriate sentence (taking into account the fact that, since being sentenced, the appellant has admitted his guilt and enrolled in a sex offender program) was one of 4 years' imprisonment, with eligibility for parole. I would achieve that outcome by substituting for the sentences imposed by the trial Judge sentences of 18 months' imprisonment on each of counts 1, 3 and 4 and a sentence of 2 years and 6 months' imprisonment on count 2 (a sentence which is lower than it might otherwise have been, for totality reasons), with the sentences imposed on counts 1, 2 and 3 to be served concurrently but cumulatively upon that imposed in respect of count 4.

20 Although it is strictly unnecessary for me to do so, I will comment briefly on particulars two to six of the first ground of appeal.

21 As to the second particular, I am not persuaded that the sentencing Judge made any error in imposing similar sentences in respect of the two indecent dealing charges. It is true that the complainant was younger at the time of the first of the offences charged, but the difference in age was only around 12 months. It is also true that there was a greater degree of touching in the case of the first offence and, indeed, that on the second occasion the appellant had been unable to achieve his objective. However, both incidents were serious, with the second involving a degree of force. In each case, in my opinion, a similar term of imprisonment was appropriate.

22 As to the third particular, while it might be correct that there was only one occasion upon which there was actual sexual touching (being the occasion upon which counts 1 and 2 were committed), the offence charged under count 3 involved the exposure of the complainant's breast and the use of physical force in an attempt to touch it. The fact that the attempt failed seems to me to be a matter of mere good fortune that does nothing to mitigate the offence.

23 As to the fourth and sixth particulars, it might be open to say that there was no evidence that the appellant had attempted to groom the complainant to secure her co-operation to engage in sexual behaviour, but that seems to me to be a distinction of little significance in a case in which there were no less than three separate occasions of sexual misbehaviour, during the last of which there was an attempt to secure sexual favours in return for money. Also, I do not agree with the description of the offences as being opportunistic rather than predatory in nature. In my opinion they were both opportunistic and predatory.

24 As to the fifth particular, I am unable to accept the description of the offence of incitement as being a perfunctory and amateurish attempt to engage the complainant in sexual behaviour. It was predatory behaviour from a person in a position of trust and, it seems to me, there was nothing perfunctory about it. As I have said, even after the complainant had rejected the appellant's offer (at a time when she needed money for her imminent trip), the appellant invited her to think about it.

25 It is also unnecessary for me to deal with the second ground of appeal. However, I should say that the appellant is right in his contention that the trial Judge erred in saying that the total sentence imposed by him was equivalent to one of 7 years and 3 months' imprisonment under the former sentencing regime. As I have said, it was in fact equivalent to a sentence of 8 years and 3 months' imprisonment under that regime. While the trial Judge was not required to make that calculation it is obvious that he did so for the reasons discussed in Miller v The State of Western Australia [2006] WASCA 163 at [20] - [22] and Hapke v The State of Western Australia [2006] WASCA 188 at [4]. The fact that he erred in doing so is consequently an indication that the total sentence imposed by him was longer than that which he would have imposed were it not for the operation of the transitional provisions, as to which see Hapke, above, at [4].

26 I would allow the appeal, quash the sentences imposed by the trial Judge and substitute for them sentences of 18 months' imprisonment on each of counts 1, 3 and 4 and a sentence of 2 years and 6 months' imprisonment on count 2, with the sentences on counts 1, 2 and 3 to be

served concurrently with each other but cumulatively upon that imposed in respect of count 4. The effect of this is that the appellant will be required to serve a total period of 4 years' imprisonment, 2 years of which will be required to be served before he becomes eligible for release on parole.

27 WHEELER JA: I have had the advantage of reading in draft the reasons for decision of Steytler P, with which I agree. I wish only to add a brief observation in relation to one matter mentioned by his Honour.

28 It is correct to say that there is support in the cases for the proposition that digital penetration is less serious than penile penetration: LSC v The Queen [2003] WASCA 303. Further, that proposition appears to be supported by the observations of the High Court in Ibbs v The Queen [1987] HCA 46; (1987) 163 CLR 447, especially at 452.

29 In Ibbs, the Court of Criminal Appeal had applied certain observations made by Burt CJ about the replacement of the concept of rape with that of "sexual penetration" without consent, by s 324F of the Criminal Code (WA). In R v Ginder (1987) 23 A Crim R 1, at page 4, Burt CJ had said:

" ... it should not be supposed that one means of sexual penetration, divorced from the circumstances, is more heinous than another. To make that distinction would, I think, be to hark back to notions which have, by the reforming Act, been abandoned."

30 The High Court in Ibbs was of the view that the proposition quoted above could not be accepted (at 451). Their Honours observed (at 452):

"The maximum penalty is not prescribed as an appropriate penalty for the worst type of case falling within each of the respective categories of sexual penetration described in s 324F. The inclusion of several categories of sexual penetration within the offence described as sexual assault carries no implication that each category of sexual penetration is as heinous as another if done without consent."

31 The observations of the High Court, quoted above, may be perceived to be inconsistent with the intention of s 324F as described by the Minister introducing into Parliament the Bill which enacted it, and so contrary to the understanding of that provision which was apparently before Parliament at the time at which the Bill was enacted. In the Legislative

Assembly on 3 September 1985, the Minister introducing the Bill said in her Second Reading Speech (Western Australian Parliamentary Debates, 3 September 1985, page 700):

"Sexual penetration will include penetration of the vagina of any person or anus of any person by any part of the body of another person or an object manipulated by another person except where carried out for proper medical purposes and will also include activity generally described as fellatio or cunnilingus. This has the effect that the most serious forms of indecent assault are to be equated in seriousness with the more recognised forms of sexual intercourse or penetration."

32 In the majority of cases, any tension which may exist between the apparent legislative intent which appears from the definition in s 324F, as confirmed by the extrinsic materials, on the one hand, and the observations of the High Court in Ibbs on the other will usually not be of practical significance. In the majority of cases, penile penetration is more serious than digital penetration, fellatio or cunnilingus. This is because, when regard is had to either the actual or the potential harm to be caused by the conduct, the risks associated with penile penetration can include pregnancy, a sexually transmitted disease, and, in the case of children, often pain, or even physical damage. Penile penetration will also, often, be perceived by the victim as a more serious affront to personal dignity and bodily integrity. In addition, many cases of penile penetration tend to be associated with a greater degree of force or violence than cases of digital penetration.

33 However, there can be very serious cases which do not involve penile penetration. Some cases of penetration involving objects are obvious examples. Some cases of digital penetration can be extremely forceful and very serious in their consequences. Some other forms of penetration may be effected because the offender considers that they are more likely to be degrading and humiliating to the victim (see, eg, Turaga v The State of Western Australia [2006] WASCA 199).

34 What was actually in issue in Ibbs was whether, consent of the complainant having initially been given to penile sexual penetration, a very brief period of penetration which occurred after consent had been withdrawn was to be regarded for the purpose of sentencing as less serious than a case in which there had been no consent from the outset. It may be that all that the High Court was intending to make clear in that case was that a Court sentencing in respect of sexual penetration cannot

simply assume that all such offences are of equal seriousness. That proposition can be unreservedly accepted.

35 However, I would have great difficulty in accepting the proposition that there is any sort of "hierarchy" of sexual penetration which is such that some forms of penetration, such as digital penetration, are in all circumstances to be considered less serious than others. I have found it necessary to make these observations because it seems to me that the idea of such a hierarchy is reflected, either expressly or implicitly, in submissions in many sentencing appeals in these matters. It is, in my view, important to stress that the seriousness of the offence will be determined by all of the circumstances of the case.

Legislation Amendment and Repeal Act 2003

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

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"C" v The State of Western Australia [2006] WASCA 261 (1 December 2006)

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