3 Scott was 41 years old at the time of sentencing and 29 years old at the time of the offences. Her background reveals that she had been subjected to a great deal of abuse and misfortune. Her father died when she was 14 years old. For some three years, while she was a teenager, she was sexually abused. When only 17 years old she married a man who was some five or six years older than her. She stayed with him for about 12 months. The relationship produced a child. However, her husband proved to be a violent and alcoholic man who locked her in cupboards and freezers on occasions. After this relationship had ended she formed another with an older man who was in his forties. He turned out to be an ex-prisoner. He involved Scott in criminal enterprises until he was arrested and extradited to Darwin. Her child was taken from her. She remarried in 1985, whilst still only about 20 years old. In about August 1985, a child was born of that union. Scott suffered from post-natal depression and was charged with assault occasioning bodily harm to her baby. She later had two other children. In 1993, she separated from her second husband. She met the appellant in the early 1990s and her relationship with him continued, as we have said, until about 2001. She later entered into a new relationship. This produced a child who was 16 months old at the time of sentencing.

4 The complainant had behavioural problems which led to a difficult relationship with her parents. Scott befriended her and she spent long periods of time at Scott's house. Notwithstanding that the complainant was then 13 years old Scott sometimes gave her alcohol and cigarettes. The complainant's mother knew of the friendship but seemingly trusted Scott to provide a safe environment for her daughter. The appellant was often at Scott's house and, as a consequence, came to know the complainant. He, too, was seemingly trusted by the complainant's mother.

5 On the day of the offences, the complainant was sitting at a table with the appellant and Scott. She was given something to drink. She remembered awakening on a bed. The appellant and Scott were in the room with her. The appellant fondled her breasts and Scott licked her vagina. The appellant then penetrated the complainant with his penis and had sexual intercourse with her. The fondling of the complainant's breasts formed the subject of the indecent dealing charge (count 1 on the indictment). The licking of the complainant's vagina and the penile penetration respectively gave rise to counts 3 and 4 (the jury acquitted both accused on a further count, being count 2 on the indictment).

6 When sentencing the appellant, the trial Judge took into account his age, his prior good character and the fact that he suffered from osteoarthritis (which was treated by medication). He also had regard to a pre-sentence report and a psychologist's report that had been prepared in respect of the appellant. He accepted that the appellant presented a low risk of re-offending. He regarded the offences as serious, involving an element of depravity in respect of a "very vulnerable" child. He said that the appellant had known of, and taken advantage of, the trust reposed in Scott by the complainant.

7 The trial Judge regarded Scott as having played a lesser role in the offences. However, he said that she had betrayed the complainant's trust and that, were it not for her role, the offending would not have come about. He took into account her difficult background and the fact that she had a 16 month old child. He also took account of the fact that, because Scott would lose her children (other than by way of contact visits), imprisonment would be particularly difficult for her. In her case he imposed sentences of 3 years and 4 months' imprisonment in respect of each of the sexual penetration charges and a sentence of 8 months' imprisonment in respect of the indecent dealing charge. Each of those sentences took into account the one third reduction required by the transitional provisions of the Sentencing Legislation Amendment and Repeal Act 2003 (WA) (as was the case with the sentences imposed on the appellant).

8 There are three grounds of appeal. They read as follows:

"1 The sentence imposed by the learned sentencing Judge was manifestly excessive having regard to the:

1.1 sentence imposed on the co-offender Carol Anne Scott;

1.2 lack of prior offending behaviour or criminal convictions;

1.3 medical condition of the Appellant;

1.4 low risk of re-offending;

1.5 role which the Appellant played in the commission of the offences compared with the role played by the co-offender Carol Anne Scott;

1.6 prior good character of the Appellant;

1.7 positive work history of the Appellant; and

1.8 isolated nature of the offending behaviour.

1. The learned sentencing Judge erred in considering that the co-offender Carol Anne Scott played a lesser role in the offending behaviour when such a finding was not open on the evidence nor consistent with the prosecution case at trial.
2. The starting point of 9 years in respect of Count 4 was manifestly excessive in all the circumstances for offences of this type."

9 Although rather less than adequately expressed, these grounds raise three issues. The first is disparity with the sentence imposed on Scott. The second is whether the totality principle was infringed. The third is whether the sentence imposed in respect of count 4 is manifestly excessive. We will deal with each of these in turn.

10 Generally speaking, the imposition of disparate sentences upon co-offenders whose conduct and antecedents are comparable is unjust: Lowe v The Queen (1984) 154 CLR 606 at 617, per Brennan J. Disparity in sentence between co-offenders will attract the intervention of an appellate court only when it gives rise to a "justifiable sense of grievance by giving the appearance, in the mind of an objective observer, that justice has not been done": Postiglione v The Queen (1997) 189 CLR 295 at 323 per Gummow J. There will be no justifiable sense of grievance if there are considerations which support different sentences being given to different co-offenders. Such matters as the age, background, previous criminal history and general character of the offender, and the part which he or she played in the commission of the offence, must be taken into account: Lowe at 609 per Gibbs CJ (Wilson J agreeing), 617 per Brennan J and 623 per Dawson J. Even when the disparity is such, in all of the circumstances, as to give rise to a justifiable sense of grievance, it does not necessarily follow that the higher sentence will be reduced to the point where it equates in all respects with the sentence imposed on a co-offender. Rather, it is a matter to be taken into account in the exercise of a broad discretion: Bolton v The State of Western Australia [2006] WASCA 120 at [12] per Wheeler JA; Goddard v The Queen (1999) 21 WAR 541 at [31] per Kennedy J; R v Reardon (1996) 89 A Crim R 180 at 182 per Gleeson CJ, 183 per Sully J and 191 per Hulme J. This approach accords with s 6(1) of the Sentencing Act 1995 (WA), which requires a sentence imposed on an offender to be commensurate with the seriousness of the offence.

11 In our opinion there were, in this case, considerations which plainly supported different sentences being given to the two co-offenders. It was open to the trial Judge to conclude, as he did, that Scott's role was the lesser of the two, given that the appellant penetrated the complainant with his penis (as to which see R v Leggett [2000] WASCA 327 at [21] per Wheeler J) and that it was him who had fondled her breasts. Moreover, the appellant was a good deal older than Scott and very much older than the complainant. While it is true that, but for Scott's role, the offending would not have come about, that does not alter the fact that the appellant took advantage of the fact that the complainant trusted Scott. It seems plain, in any event, that the complainant had come to trust the appellant also.

12 There was also a considerable difference in the background of the two co-offenders. The appellant's background is unremarkable whereas Scott had been consistently subjected to abuse and misfortune of a very serious kind, as we have said. Moreover, the trial Judge was entitled to take into account the fact that Scott had a small child from whom she would be separated: Nguyen v The Queen (2001) 160 FLR 216 and Nguyen v The Queen (2001) 160 FLR 284.

13 In the circumstances there is no basis for any justifiable sense of grievance on the part of the appellant and consequently no basis for interfering with the sentences imposed upon the ground of disparity.

14 Ground 3 complains of the starting point for the sentence imposed in respect of count 4. In the case of a ground raising manifest excess, it is, of course, only the finishing point that is of any significance. As we have said, in the case of count 4 this was a term of 6 years' imprisonment.

15 When considering a contention that a sentence imposed is manifestly excessive, it is necessary to view the sentence in the context of the maximum prescribed by law, the standards of sentencing customarily observed with respect to the offence, the place which the criminal conduct occupies on a scale of seriousness of crimes of that type and the personal circumstances of the offender: Chan (1989) 38 A Crim R 337 at 342. The maximum penalty provided for by the Criminal Code in respect of an offence of sexual penetration of a child between the age of 13 years and 16 years is one of 14 years' imprisonment, rising to 20 years' imprisonment in a case in which the child is under the care, supervision or authority of the offender: s 321(2), s 321(7).

16 It is trite that, in a sentencing appeal, an appellate court may not substitute its own opinion for that of the sentencing judge merely because it would have exercised its discretion differently. There must be an error that justifies intervention: Lowndes v The Queen (1999) 195 CLR 665 at [15]; Dinsdale v The Queen (2000) 202 CLR 321 at [3] per Gleeson CJ and Hayne J, [21] - [22] per Gaudron and Gummow JJ and at [58] per Kirby J. Error might be inferred in a case in which the result is unjust or unreasonable because it is manifestly excessive: Dinsdale at [6] per Gleeson CJ and Hayne J.

17 The dominant sentencing considerations in a case of sexual offending against a child are punishment, general and personal deterrence and the protection of children who, because of their lack of experience and judgment, are vulnerable. It has often been said that there is no tariff for sentencing in sexual offences (that also being true of many other categories of offending). However, in Podirsky (1989) 43 A Crim R 404 at 411, Malcolm CJ considered that a single instance of penile penetration of the vagina of a victim under the age of 16 years would ordinarily lead to a sentence of around 8 years' imprisonment (5 years and 4 months' imprisonment after allowing for the operation of the transitional provisions). His comments in this respect were applied in R v Clark [2000] WASCA 229 at [11] per Wheeler J (Kennedy and Pidgeon JJ agreeing).

18 Since then, in Rogers v The Queen [2004] WASCA 147 Templeman J has said (at [54]) that sentences for sexual offences committed against children have firmed up in recent years as the courts have gained a better understanding of the long-term effects which conduct of that kind might have on a young child (see also Miller J in that case at [95] and S v The Queen [2004] WASCA 113 at [56], [71] per Malcolm CJ (Templeman and Miller JJ agreeing)). A similar statement has relatively recently been made by the court (Wheeler JA, Roberts-Smith JA and Miller AJA) in VIM v Western Australia (2005) 31 WAR 1 at [288].

19 When looked at in this light, the sentence of 6 years' imprisonment imposed on the appellant in respect of count 4 cannot be regarded as manifestly excessive. There was very little that could be said in mitigation on behalf of the appellant. He had not pleaded guilty or displayed any remorse. As we have said, at the time of the offence he was 52 years old and his victim was only 13 years old. She was even more vulnerable than most children of that age. The offence showed a significant degree of depravity, given that it was carried out in concert with a co-offender. The appellant's good antecedents can count for little in these circumstances: Dauphin v The Queen [2002] WASCA 104 at [9] and the cases there cited.

21 That leaves ground 1, to the extent that it contends, in effect, that there was an infringement of the totality principle.

22 That principle requires (so far as it is presently relevant) that the aggregate sentence imposed upon an offender bear a proper relationship to the overall criminality of the offending behaviour when the offences are viewed in their entirety and having regard to all the circumstances of the case, including circumstances personal to the offender: Postiglione at 307 - 308 per McHugh J and Woods v The Queen (1994) 14 WAR 341 at 352 per Anderson J. It is plain that the principle was not infringed in this case. We have said that the sentence imposed in respect of count 4 was appropriate. In circumstances in which the other sentences imposed were ordered to be served concurrently with that sentence, it follows inevitably that the aggregate sentence could not have been disproportionate.

23 It was for these reasons that we dismissed the appeal.