Consideration and conclusion
45In determining whether some lesser sentence is warranted, it is necessary to have regard to the entirety of the objective circumstances of the offending. In the present case those objective circumstances commenced some time prior to the actual offending, at a time when the victim was walking to the home of a friend. She was intercepted by the applicant who was unknown to her and who persisted in accompanying her on the pretence that he wished to do nothing more than "walk her home". He did so in circumstances where the victim gave him no indication that she required, much less wanted, him to accompany her.
46Upon arrival at her friend's home, the victim twice refused the applicant's invitation to accompany him to a hotel, telling him that she simply wanted to go inside. Far from respecting the victim's wishes, the applicant then forcibly dragged her to the rear area of a nearby residence where the offending took place in the area of a chicken coop. The offending itself was obviously serious, and the description given to it by the sentencing judge was apt.
47As I have previously noted, one of the primary submissions advanced by counsel for the applicant concerned the relative seriousness of those counts which involved digital penetration when compared with those other counts which involved other forms of forced sexual intercourse. In light of that submission, it is necessary to make a number of observations.
48This Court has previously said that in cases of this kind the type of forced intercourse is not determinative of the objective seriousness of the offence, and that the creation of some form of hierarchy in that regard is neither possible nor appropriate (see for example R v AJP [2004] NSWCCA 434; (2004) 150 A Crim R 575, per Simpson J at [24]).
49In R v King [2009] NSWCCA 117 McClellan CJ at CL said (at [35] - [36]):
"It is unnecessary to enter into a debate about the significance in sentencing of different types of penetration that fall within the concept of sexual intercourse: see R v Hibberd [2009] NSWCCA 20. The simple fact is that the respondent inserted his finger into the child's vagina for however brief a period of time so as to cause her a physical injury with pain at least of a transient nature. He did so notwithstanding that the child awoke and told him to stop.
The respondent argues that it was open for his Honour to find that digital penetration was less serious than penile penetration and this was a very significant fact in the assessment of the degree of criminality. But it has been made clear that it is not a case of simply considering the nature of the penetration in isolation as being ranked in some form of hierarchy: R v AJP [2004] NSWCCA 434; (2004) 150 A Crim R 575. What is to be considered is the type of penetration in all the circumstances surrounding the offending. The type of penetration is simply one factor and by itself does not indicate how serious the particular offence is. The simple fact is that had the intercourse in this case been penile penetration it would have been an offence of very great seriousness if for no other reason than because of the age of the child. In such a case the seriousness of the offence may have been above mid range. But the fact that it was not penile penetration does not mean that the offence is reduced to low range".
50To the extent that this Court has said that an act of digital penetration is less serious than an act of penile penetration, it has been consistently stressed that such a proposition is a general one, and that the entirety of the circumstances of particular offending must be taken into account. For example, in R v O [2005] NSWCCA 327 (which was a decision expressly referred to by the sentencing judge in the present case) Sully J (with whom Hidden and Hall JJ agreed) said (at [32]-[33]):
"I would accept that as a general proposition an act of digital penetration, as such, is less serious than an act of penile penetration as such. I do not agree, however, that such a general proposition is more or less as of course a proposition of universal applicability in cases of digital penetration. One has only to read the victim impact statements of KW and of JS to see at once how damaging to a particular victim an act of digital penetration, let alone more than a single such act, can be to a very young child.
I would at once agree that the acts of digital penetration are not properly to be regarded as the worst types of sexual intercourse on a scale of statutory penalties that peaks at a sentence of imprisonment for 20 years. That said, however, I do not agree that the offences here relevant are to be treated as though they were more or less trifling offences. They were, in my opinion, nothing of the kind. They were, for the reasons earlier herein explained, in my opinion offences of significant objective criminality".
51In R v Hibberd [2009] NSWCCA 20; (2009) 194 A Crim R 1 (to which McClellan CJ at CL referred to in King (supra)) Tobias JA (at [21]) expressed the view that this Court should give consideration to departing from the general proposition that digital sexual intercourse was to be regarded as generally less serious than penile sexual intercourse. James J (at [27]) reserved his position on the issue raised by Tobias JA. However, Price J said (at [56]):
"Relevant considerations in determining where on the scale of seriousness an offence contrary to s. 61I of the Crimes Act lies include "the degree of violence, the physical hurt inflicted, the form of forced intercourse and the circumstances of humiliation ... see R v Gebrail (Court of Criminal Appeal, 18 November 1994, unreported) per Mahoney JA at 10-11. To those matters I would add the duration of the offence. Non-consensual sexual intercourse by digital penetration has generally been considered to be less serious than an offence of penile penetration: see, for example, R v Santos Da Silva (Court of Criminal Appeal, 30 November 1995, unreported) per Grove J at 3, but each case will depend on its own facts. There is no canon of law which mandates a finding that digital penetration must be considered less serious than other non-consensual acts of sexual intercourse. Whilst the form of the forced sexual intercourse is an important factor it is not to be regarded as the sole consideration".
52In MH (the decision cited by counsel for the applicant) R S Hulme J (in reference to the observations of Tobias JA in Hibberd) said (at [37] - [38]):
"The matter was not argued. Nor was the Court provided with anything like a comprehensive review of prior authorities, and there are a number. Accordingly, this is not the occasion to attempt a detailed review of the topic. However, as a judgment on a matter of fact, my view is that digital sexual intercourse is generally less serious than penile, particularly penile vaginal, intercourse. Inherently, penile vaginal intercourse carries risks or greater risks of venereal disease and pregnancy compared with digital vaginal intercourse. To my mind, and I venture to say in the view of most of the community, penile vaginal intercourse is also a greater affront both physically and mentally to an unwilling victim in consequence of the greater subjugation of her body and intrusion of privacy that such intercourse generally involves.
Other forms of forced penile intercourse have their own attributes and incidents, often closely associated with other circumstances of the assault and the relativity might not be so clear. Nevertheless, in these cases also I would generally regard penile intercourse as more serious than digital".
53Importantly, his Honour went on to say (at [39]):
"In saying what I have in the two immediately preceding paragraphs, I do not, of course, purport to lay down any proposition of law. Nor do I mean to suggest that all cases of penile intercourse are worse than all cases of digital intercourse. Merely do I wish to ensure that Tobias JA's remarks do not pass without dissent and to indicate my views on a topic that does arise in this case ..."
54To the extent that the submissions of counsel for the applicant suggested otherwise, it should be emphasised that there is no decision of this Court which supports the proposition that digital sexual intercourse is, of itself, less serious than some other form of forced sexual intercourse. Reference to the above authorities demonstrates that it has been emphasised, on more than one occasion, that the objective seriousness of offending is to be determined according to the entirety of the facts and circumstances of the case in question. Concentrating upon, or giving primary significance to, the form of the forced sexual intercourse in determining its objective seriousness reflects an erroneous approach. It is equally erroneous to attempt to rank forms of forced sexual intercourse in some hierarchy so as to determine their objective seriousness.
55The circumstances of the present case serve as a good example of both the rationale behind, and the correctness of, the approach consistently stated by this Court. The applicant's offending involved two separate instances of digital penetration of the victim. Both of those instances, on the victim's evidence, involved the insertion of more than one finger into the victim's vagina. In respect of the first, the victim gave evidence that the applicant had "shoved his hand up my vagina and moved his hand around roughly". There was evidence that the victim suffered significant injuries, including grazing of the vaginal wall and significant swelling to the left labia minora.
56In these circumstances, to concentrate upon the fact that the offending involved digital penetration as opposed to some other form of forced sexual intercourse would be to ignore the rough manner in which it was carried out, and the injuries which resulted from it, both matters being directly relevant to an assessment of the objective seriousness of the offending. It is evident that those matters led the sentencing judge to conclude (at ROS 17) that the applicant's acts of digital penetration were not to be viewed as less serious than the penile penetration. That was a conclusion which was clearly supported by the evidence. It was also one which reflected an approach which was entirely consistent with the authorities to which I have referred.
57His Honour (commencing at ROS 18) undertook an assessment of the applicant's subjective case. It is clear that he took into account the applicant's traumatic upbringing in Liberia, which included his mother, two brothers and a sister all being killed in a political uprising when the applicant was in his twenties. His Honour also had regard (commencing at ROS 19) to the contents of a report of Dr Allnutt, psychiatrist, who diagnosed the applicant as suffering from an anxiety disorder with depressive symptoms. In addition, his Honour made specific reference (commencing at ROS 21) to evidence given by a volunteer who had assisted the applicant and his family to settle into the local community, and who told the court (inter alia) that the applicant's wife suffered from psychiatric ill health resulting in the applicant's children being placed in the care of the Department of Community Services.
58The sentencing judge balanced those various matters against the objective seriousness of the offending and concluded (at ROS 26) that they did not justify a reduction in sentence. In my view, that conclusion was well open to him. The applicant's offending was serious and degrading, and justified the imposition of the sentences which his Honour imposed. Indeed in my view, some partial accumulation of the sentences would have been justified so as to properly reflect the applicant's overall culpability. The applicant has derived a not insignificant benefit from the fact that all sentences were ordered to be served concurrently.
59Finally, the statistical and comparative material upon which the applicant relied does not persuade me that some lesser sentence is warranted. There have been numerous statements, both by the High Court and by this Court, concerning the limited use to which statistical material can be put (see Hili v R; Jones v R [2010] HCA 45; 242 CLR 520 at [54]; Han v R [2009] NSWCCA 300 at [2] (per Campbell JA) and at [34] per Rothman J). Whilst I have had regard to those authorities to which the Court was referred, the process of comparing one sentence with another is inherently problematic (see Vandeventer v R [2013] NSWCCA 33 at [45] - [46] per Adamson J (with whom McClellan CJ at CL and Rothman J agreed).
60In my view, none of the matters advanced on behalf of the applicant support a conclusion that there has been substantial injustice arising out of the sentence imposed, or that some other sentence is warranted in law. This is particularly so in circumstances where, in the course of the hearing of the appeal, counsel for the applicant expressly conceded that the overall sentence imposed was one which was within the range of proper sentencing discretion.
ORDER
61For the reasons I have expressed I propose the following order:
(i)The application for extension of time is dismissed.