Criminal law - Appeal against sentence - Conviction after trial - One count of sexual penetration without consent - Sentenced to 5 years 4 months' imprisonment concurrent - One count of aggravated sexual penetration without consent - Circumstance of aggravation - Cause bodily harm - Sentenced to 6 years' imprisonment - Total effective sentence 6 years' imprisonment - Alleged implied error - Manifest excess - First limb of the totality principle

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

Munmurrie v The State of Western Australia [2013] WASCA 167

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

Singh v The State of Western Australia [2017] WASCA 47

Stickells v The State of Western Australia [2018] WASCA 160

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

The State of Western Australia v Doualeh [2014] WASCA 3

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

The State of Western Australia v Staniforth-Smith [2014] WASCA 170

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

1. This is an appeal against sentence.
2. The appellant was charged on indictment in the District Court with four offences of a sexual nature, all of which were alleged to have taken place in a house at Maylands on or about 17 June 2016. The alleged victim was a woman who we will refer to in these reasons as H.
3. Count 1 alleged that the appellant sexually penetrated H without her consent by penetrating her vagina with his fingers, contrary to s 325 of the Criminal Code (WA) (the Code). Count 2 alleged that the appellant sexually penetrated H without her consent by penetrating her vagina with his penis and that he did bodily harm to her, contrary to s 326 of the Code. Count 3 alleged that the appellant again sexually penetrated H without her consent by penetrating her vagina with his penis. Count 4 alleged that the appellant sexually penetrated H without her consent by penetrating her anus with his penis and that he did bodily harm to her.[1]
4. On 14 December 2017, after a trial before Petrusa DCJ and a jury, the appellant was found not guilty of counts 1 and 2, but guilty of counts 3 and 4.[2]
5. On 16 February 2018, the appellant was sentenced to 5 years and 4 months' imprisonment on count 3, and 6 years' imprisonment on count 4. Her Honour ordered that the sentences be served concurrently. Thus, the total effective sentence imposed upon the appellant was 6 years' imprisonment. The appellant was made eligible for parole and the sentences were backdated to commence on 14 December 2017.[3]
6. The appellant relies on one ground of appeal which, in effect, alleges that the total effective sentence infringed the first limb of the totality principle.[4] The question of leave to appeal on this ground was referred to the hearing of the appeal.[5]
7. For the reasons that follow, we are of the view that leave to appeal should be refused and the appeal dismissed.

1. The facts as found by the sentencing judge were not challenged by the appellant. They may be summarised as follows.
2. The appellant and H were acquaintances.[6] At the time of the offending, the appellant was engaged in studies in counselling and psychology.[7]
3. On the evening of 16 June 2016, H and others, including her housemate, went to a bar in Northbridge. There, H encountered, for the first time since their break-up, her ex-boyfriend. This upset her and she left the bar at about 11.15 pm.[8]
4. During the taxi ride home, she updated her Facebook status, asking for someone to contact her so that she could talk. The appellant answered the call. H felt that the appellant was someone to whom she could turn to for support.[9]
5. The appellant was aware that H had struggled with some mental health issues. He had indicated that he was willing to support her if needed.[10]
6. It took some time for the appellant to arrive at H's home. In the meantime, her interest in having the appellant come to her home waned and she withdrew her invitation. The appellant nevertheless went to her home, arriving there around midnight.[11]
7. When he arrived, the appellant entered her room as he had earlier been instructed, sat on the end of the bed and began to speak with her. H was lying on her bed in the foetal position. He lay next to her. What then followed was the subject of counts 1 and 2 in the indictment.[12] As he was acquitted of these charges, it is unnecessary to say anything more about this conduct.
8. With respect to counts 3 and 4, in the course of the act of penile/vaginal penetration the subject of count 2, H bit the appellant on his lip. The appellant responded by putting a hand around her neck to strangle her, to the point where she believed she may pass out. The appellant then rolled her over onto her stomach, pressed her face into the pillow and penetrated her vagina with his penis from behind. H did not consent to this and, given the lack of lubrication, found the act painful. This is the act the subject of count 3.[13]
9. The appellant then removed his penis from H's vagina, placed it in her anus and began to anally penetrate her. H told the appellant to stop, but he continued. This act of anal penetration which constituted count 4 only ended when H pushed herself away from the appellant and scrambled up the bed. She then demanded that he leave the house. After she put her clothing back on, H pushed the appellant out of the house, all the while berating him.[14]
10. H's housemate and his friend heard the commotion and went to investigate. By this point, the appellant was leaving the house by the front door. They found H curled up in a ball in the hallway, sobbing inconsolably. H immediately told her housemate's friend that she had been raped and she told both her housemate and his friend that 'he [the appellant] would not stop'.[15]
11. Not long after the commission of the offences, H was taken to the Joondalup Hospital where she was medically examined. H was found to have two lacerations to her perineum, one of which was 4 mm in length, and the other 3 mm. This is the bodily harm associated with the act of penetration the subject of count 4. There was also evidence consistent with bleeding from the anus, although no internal anal examination was conducted.[16]
12. In addition to the injuries to the perianal area, H also had a scratch mark to her neck consistent with the strangulation that she described and there were other injuries to her genitalia, including a 1.3 cm long linear abrasion to the left labia majora and two lacerations which extended from the fossa navicularis to the posterior fourchette, one 8 mm in length, and the other 6 mm. The evidence led at trial was to the effect that the area of these two lacerations, being from the fossa navicularis to the posterior fourchette, was an area that would have come into contact with a penis during penile/vaginal intercourse. Her Honour found that the act of sexual penetration the subject of count 3 was likely to have been, at least, uncomfortable if not painful for H.[17]
13. The appellant's evidence at trial was that all of the sexual contact was consensual. Further, the act of anal intercourse the subject of count 4 was unintended in that, while engaging in vaginal intercourse his penis came out and he inadvertently reinserted it into H's anus. The appellant testified that H became distressed after he made an ill-advised comment to the effect, 'After this I might go to Amps [a bar] and hang out with your boyfriend'. The appellant said that this sparked a dramatic reaction from H. The sentencing judge rejected the appellant's account of events.[18]
14. The sentencing judge found that in light of text messages exchanged between H and the appellant on the night in question, the appellant had some interest in H above and beyond the platonic. Her Honour accepted that some intimate contact with the appellant may have evolved from the appellant comforting H. However, her Honour found that H made her lack of consent clear after she bit the appellant on the lip, and that the appellant's response, of grabbing H around her neck, demonstrated his understanding of this.[19]

1. The appellant was 25 years of age when the offences were committed. He had no prior criminal record. The character references which were tendered to the sentencing judge showed that he is regarded by those who are close to him as being caring and compassionate.[20]
2. The appellant had a good upbringing in a supportive family. After leaving school, he completed an apprenticeship as a chef and then spent some years working and travelling overseas. In early 2016, he returned to Perth. He decided that he no longer wanted to work as a chef and began studies in mental health. After completing a diploma in mental health, he commenced an undergraduate course at Notre Dame University in behavioural science and psychology.[21]
3. The appellant has no physical or mental health issues, albeit that he became depressed and demoralised after the charges were laid. He has no issues with respect to alcohol or drugs.[22]
4. The sentencing judge was provided with a pre-sentence report and a psychological report written by Ms Cinzia Zuin, a registered psychologist.
5. The authors of both reports observed that the appellant continues to deny responsibility for the offences and maintains that the sexual conduct he engaged in with H was consensual.[23] Indeed, he claims it was initiated by her.[24] Ms Zuin observed that the appellant portrayed his life prior to his arrest in an overly positive way. Nevertheless, according to Ms Zuin, the appellant impressed as reasonably intelligent and capable of exercising good judgment and making good decisions. She said that he appeared to have a positive attitude about women and confirmed that he did not appear to have any mental health issues.[25] She speculated that the offences were 'somewhat of an aberration'.[26] Ms Zuin concluded that the appellant was 'unlikely to pose any challenges to risk management'.[27]

1. It is clear from the sentencing remarks that her Honour took into account, as mitigating factors, the appellant's personal circumstances, including his prior good character.
2. Her Honour identified a number of aggravating circumstances including:[28]

(a) the appellant abused the trust that the victim had placed in him as someone in whom she could confide;

(b) the acts of penetration for which he was convicted were persistent, forceful and caused physical injury to H in circumstances where the appellant knew H was not consenting to further sexual contact;

(c) the act of anal penetration displayed a disregard and disrespect for H;

(d) the appellant only desisted when H was able to escape from him; and

(e) the offences have had a significant negative psychological impact upon H.

1. The ground of appeal as expressed in the appellant's case reads:[29]

The sentencing judge erred in imposing a sentence that was manifestly excessive in all the circumstances.

1. Expressed in this way, the ground is ambiguous. It is not clear whether the appellant challenges the individual sentences or the total effective sentence. In oral argument, counsel for the appellant indicated that the ground of appeal was intended to allege an infringement of the first limb of the totality principle.[30] However, given that the sentence on count 3 was ordered to be served concurrently with count 4, and that the sentence on count 4 constitutes the entire total effective sentence, we will take it that the appellant also challenges the individual sentences that were imposed.
2. The appellant's written submissions appear to allege that her Honour made an express error in finding that the lacerations to the victim's perineum were caused by the conduct the subject of count 4.[31] While this is not a ground of appeal, it is convenient to deal with the point now. The assertion is entirely without merit. Although not the appellant's complaint, it may be noted that there is potentially a minor inconsistency between her Honour's reference to the lacerations being to H's perineum and the evidence of Dr Smith that the lacerations were located in the perianal region.[32] However, nothing turns on any such minor discrepancy in describing the precise location of the lacerations, which the sentencing judge later referred to as being to the perianal area.[33] Otherwise, Her Honour's finding of fact on this issue is entirely consistent with the jury's verdict and with the evidence that was adduced at trial. The appellant's submission fixes on Dr Smith's evidence that she was not able to say, based on the two lacerations alone, whether penetration could have been consensual or non-consensual.[34] However, there was no challenge to the proposition that the lacerations were the result of the appellant penetrating H's anus. The non-consensual nature of that penetration was established by other evidence.
3. Further, the lacerations were the bodily harm which was the circumstance of aggravation alleged by the State as an element of the offence created by s 326 of the Code.[35] The jury's verdict found this circumstance of aggravation to be established, so that the appellant was guilty of an offence against s 326 of the Code. In the absence of a challenge to the conviction of an offence against s 326 of the Code, a challenge to her Honour's finding of fact as to the circumstance of aggravation for sentencing purposes is misconceived.

1. The principles relevant to appeals, such as this one, which allege implied error are well established. They have been described in many decisions of this court and it is unnecessary to repeat them in detail. We adopt, without repeating it, the description of those principles in the recent case of Stickells v The State of Western Australia.[36]

1. The appellant submits, in effect, that, having regard to the mitigating factors, particularly the appellant's prior good character and his low risk of reoffending, the individual sentences and thus the total effective sentence were unreasonable or plainly unjust.[37] In support of this submission, the appellant pointed to the outcomes in Munmurrie v The State of Western Australia;[38] The State of Western Australia v Doualeh[39] and The State of Western Australia v Staniforth-Smith.[40]
2. The respondent submits that the individual sentences, and thus the total effective sentence, represented an appropriate exercise of the sentencing discretion having regard to the seriousness of the offending.

1. In our opinion, the individual sentences were not manifestly excessive. The orthodox approach to whether an individual sentence is manifestly excessive is to examine it from the perspective of the maximum sentence prescribed by law for the crime, the standards of sentencing customarily observed with respect to the offending, the place that the criminal conduct occupies on the scale of seriousness of crimes of that type and the offender's personal circumstances.
2. The maximum penalty prescribed by law for count 3 is 14 years' imprisonment and for count 4 is 20 years' imprisonment.
3. It is well established that there is no tariff for the offence of sexual penetration without consent. Nor is there any 'hierarchy of sexual penetration'.[41] Nevertheless, it is generally accepted that in most cases penile penetration is more serious than digital penetration, fellatio or cunnilingus.
4. In The State of Western Australia v Akizuki,[42] Steytler P observed that an average starting point for an unaggravated single offence of penile sexual penetration without consent is around 4 years 8 months' imprisonment before taking into account factors in mitigation. However, his Honour also noted that the range of potentially aggravating features is so huge that features of that kind can dramatically increase the sentence imposed or have little effect.
5. In The State of Western Australia v Richards,[43] 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.
6. In Warburton v The State of Western Australia,[44] Wheeler JA said that a common range of sentences for unaggravated offences, being offences committed in circumstances where there are no unusual aggravating factors, was around 4 to 6 years' imprisonment (post-transitional).
7. The ranges outlined in these decisions have been referred to in many decisions of this court. For recent examples, see NPA v The State of Western Australia[45] and Singh v The State of Western Australia.[46]
8. With respect to the three cases cited by the appellant, it is as well to observe that the outcome in such a small number of cases cannot establish a range of sentences customarily imposed. In any event, they are of no assistance to the appellant.
9. In Munmurrie, the offender, who was 18 years of age, was convicted after trial of one count of attempted sexual penetration without consent and one count of aggravated sexual penetration without consent.[47] The offences were serious examples of their type committed in circumstances where the offender attempted to forcefully make the victim perform oral sex on him and then, again using force, engaged in sexual intercourse with the victim, ultimately ejaculating inside her.[48] He was sentenced to 2 years and 6 months for the attempted sexual penetration, and 4 years and 3 months for the aggravated sexual penetration without consent. Those sentences were ordered to be served concurrently.[49] The principal distinguishing features between the offender in Munmurrie and the appellant are that, unlike the appellant, the offender in Munmurrie was very young and came from a severely deprived background.[50] Also, no bodily harm was caused in Munmurrie.
10. In Doualeh, the offender was convicted after trial of one count of aggravated sexual penetration.[51] The offender came upon a stranger at the Claisebrook train station and violently forced his penis into her mouth.[52] At first instance, the appellant was sentenced to 3 years 2 months' immediate imprisonment with eligibility for parole. This court allowed a State appeal and imposed a sentence of 4 years 6 months' immediate imprisonment with eligibility for parole.[53] At the time of the offending, the offender in Doualeh was very young, being 18 years of age,[54] and unlike the present case, as serious as the circumstances of Doualeh were, the offender in that case did not anally penetrate the victim or cause bodily harm.
11. In Staniforth-Smith, the offender was convicted after trial of one count of indecently dealing with a chid over the age of 13 and under the age of 16, and one count of aggravated sexual penetration, contrary to s 326 of the Code. Prior to the trial he pleaded guilty to a further count of aggravated indecent assault. The victim in each offence was the respondent's stepson.[55] The total effective sentence that was imposed upon the respondent at first instance was 18 months' imprisonment with eligibility for parole.[56] The State's appeal against sentence was dismissed having regard to the offender's personal circumstances which were characterised as unusual.[57] It should also be noted that the most serious offence in that case, being the count of aggravated sexual penetration, was of very brief duration and involved no physical or emotional coercion.[58] The circumstances of the offending and of the offender in Staniforth-Smith render it meaningless for comparison to this case.
12. In our opinion, particularly having regard to the statements made in Akizuki, Richards and Warburton, the individual sentences imposed by her Honour in respect of counts 3 and 4 are broadly consistent with the range of sentences customarily imposed.
13. It is unnecessary to repeat the facts of the offending. Self-evidently, both of the offences were serious examples of their kind. The appellant breached the trust H reposed in him. He took advantage of her when she was in, as he well knew, an emotionally vulnerable state. He put his hand around her neck, restricting her breathing. Then he forced himself on H when he knew that she did not want him to sexually penetrate her. He inflicted pain, discomfort and injury upon H. The appellant showed no regard for H's welfare. He persisted in violating H despite her telling him to stop. He only desisted when, and because, she was able to wriggle free. While both offences were serious examples of their kind, count 4 was the more serious of the two offences, given that it was an aggravated offence, caused H bodily harm and involved an act of anal penetration. It cannot be overlooked that the appellant's conduct has had a substantial detrimental psychological effect upon H.
14. The appellant was convicted after trial and cannot call aid, as a mitigating factor, pleas of guilty. Moreover, he continues to deny his guilt and cannot be said to be remorseful. Giving full weight to the mitigating factors which her Honour recognised, having regard to all relevant sentencing factors and, in particular, the serious circumstances of each offence, we are completely unpersuaded that the individual sentences that were imposed upon the appellant were manifestly excessive. Neither of the sentences were unreasonable or plainly unjust. To the contrary, they were a sound exercise of the sentencing discretion.
15. Given this conclusion, and that the sentence on count 3 was ordered to be served concurrently with count 4, it is unarguable that the total effective sentence of 6 years' imprisonment infringed the totality principle.
16. In our opinion, leave to appeal on the ground relied upon by the appellant should be refused and the appeal dismissed.

1. The orders that we would make are:
   1. Leave to appeal is refused.
   2. The appeal is dismissed.

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

Research Associate to the Honourable Justices Murphy & Mazza

[5] WAB 4; order, Mazza JA, 11 May 2018.

[23] Pre-sentence report, page 1; psychological report, page 5.

[25] Psychological report, pages 6 - 7.

[32] Exhibit 11.3, ts 201. Dr Smith had earlier described the perianal region as the wrinkled skin surrounding the anal sphincter, and the perineum as the space between the anus and the base of the vaginal opening: ts 196.

[35] See the State's opening at ts 40 and 42 and the basis on which the circumstance of aggravation alleged in count 4 was left to the jury by the trial judge at ts 405.

[36] Stickells v The State of Western Australia [2018] WASCA 160 [36].

[38] Munmurrie v The State of Western Australia [2013] WASCA 167.

[39] The State of Western Australia v Doualeh [2014] WASCA 3.

[40] The State of Western Australia v Staniforth-Smith [2014] WASCA 170.

[41] C v The State of Western Australia [2006] WASCA 261 [35].

[42] The State of Western Australia v Akizuki [2008] WASCA 267; (2008) 192 A Crim R 373 [68].

[43] The State of Western Australia v Richards [2008] WASCA 134; (2008) 37 WAR 229 [49].

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

[45] NPA v The State of Western Australia [2018] WASCA 131 [50] - [51]

[46] Singh v The State of Western Australia [2017] WASCA 47 [51] - [52].

[47] Munmurrie [2] - [4], [8].

[57] Staniforth-Smith [1] - [3], [55], [58].