MUSGRAVE -v- THE STATE OF WESTERN AUSTRALIA [2021] WASCA 67 (23 April 2021)

1. The appellant has applied for an extension of time to appeal against sentence and for leave to appeal against sentence.
2. The appellant was charged on indictment with two counts.
3. Count 1 alleged that on 1 January 2018, at a regional location in Western Australia, the appellant unlawfully and indecently assaulted the complainant by touching her breast with his hand, contrary to s 323 of the Criminal Code (WA) (the Code).
4. Count 2 alleged that on the same date and at the same place as in count 1, the appellant sexually penetrated the complainant without her consent, by penetrating her vagina with his finger, contrary to s 325(1) of the Code.
5. The appellant pleaded not guilty to each charged offence.
6. On 8 August 2019, after a trial in the District Court before Burrows DCJ and a jury, the appellant was convicted of count 1 and count 2.
7. The maximum penalty for an offence against s 323 of the Code is 5 years' imprisonment. The maximum penalty for an offence against s 325(1) of the Code is 14 years' imprisonment.
8. On 25 October 2019, the trial judge imposed individual sentences of 6 months' immediate imprisonment for count 1 and 3 years 6 months' immediate imprisonment for count 2. Her Honour ordered that the individual sentences be served concurrently. The total effective sentence was therefore 3 years 6 months' immediate imprisonment. The sentences were backdated to 8 August 2019 to take account of time spent in custody. A parole eligibility order was made.
9. The last date for the appellant to appeal against sentence was 15 November 2019. He did not file his appeal notice until 4 June 2020. The appellant's application for an extension of time to appeal is supported by his affidavit sworn 27 May 2020.
10. The appellant appeals on two grounds. Ground 1 alleges that her Honour erred in characterising the appellant's offending in relation to count 2 as being 'no less serious by the fact that it was digital penetration than it would have been had it been a penile penetration'.
11. Ground 2 alleges that the sentence of 3 years 6 months' immediate imprisonment for count 2 was manifestly excessive.
12. On 31 August 2020, I referred the application for an extension of time to appeal to the hearing of the appeal. On 15 June 2020, I referred the application for leave to appeal to the hearing of the appeal.
13. On 6 August 2020, the State filed an application in an appeal for leave to adduce additional evidence in the appeal. The application was supported by an affidavit of Jeffery Alan Scholz sworn 6 August 2020. The proposed additional evidence comprised a report dated 4 August 2020 from Dr Maire Kelly. A copy of the report was annexed to Mr Scholz's affidavit. At the hearing of the appeal, the court dismissed the State's application. The court said that reasons for dismissing the application would be published at a later date.
14. In my opinion, neither of the grounds of appeal has a reasonable prospect of success.
15. I agree with Quinlan CJ and Pritchard JA that:

(a) the application for an extension of time to appeal should be dismissed;

The trial judge's sentencing remarks including her Honour's findings as to the facts and circumstances of the offending and the appellant's personal circumstances

1. The trial judge's sentencing remarks, including her Honour's findings as to the facts and circumstances of the offending and the appellant's personal circumstances, were, relevantly, as follows.
2. The complainant in both counts was a young European woman. On 18 December 2017, she arrived in Perth. On 29 December 2017, the complainant obtained employment at a tavern in a reasonably remote part of rural Western Australia that is owned by the appellant's parents. It was a condition of the complainant's employment that she be provided with accommodation in a building next to the tavern. The complainant was allocated a room which contained two beds. A laundry was attached to the room.
3. On 29 and 30 December 2017, the complainant worked in the tavern's kitchen. On New Year's Eve, after completing her shift at the tavern, the complainant joined patrons of the tavern and the appellant's family to celebrate the new year.
4. At one stage during the evening celebrations the complainant was sitting at a table talking to the appellant, his mother and other people. However, at no time during the evening did a conversation occur solely between the complainant and the appellant. The complainant did not flirt with the appellant or anyone. She did not know the appellant's name.
5. At about 4.00 am on 1 January 2018, the complainant retired to her room and went to bed. Some time later, during the early hours of the morning, the appellant went to the complainant's room without invitation. He knocked persistently on the door to her room. The complainant opened the door. The appellant said something to her which she did not understand. When the appellant asked the complainant for a hug she said 'no'. The appellant was insistent and asked the complainant why she was not interested in him. The complainant reiterated that she was not interested in the complainant. She said she wanted to sleep on her own. The appellant asked whether he could sleep in her bed and she responded 'no'.
6. The complainant appreciated that the appellant was drunk and thought that he would be unable to drive a motor vehicle. She did not consider herself to be in any danger from the appellant because he was the son of her employer. The complainant told the appellant that if he wanted to stay in her room that night he had to sleep in the other bed. The appellant agreed to sleep in the other bed while the complainant slept in her own separate bed.
7. Later, but still in the early hours of the morning, as she was falling asleep, the complainant realised that the appellant was getting into her bed. She screamed at the appellant and said:

What are you doing? I told you already I said no already. Leave me alone. All I want to do is sleep.

1. The complainant immediately got out of her bed and got into the other bed. Later, still in the early hours of the morning, the complainant went to the bathroom. When she returned, the appellant offered to get out of her bed. The complainant accepted the offer. She got into her own bed and fell asleep.
2. Some time later, the complainant awoke. The appellant was in her bed. He was fondling the complainant's breasts and his fingers were inserted into her vagina. The appellant touched her breast under her clothing. Her pants and underwear had been pulled down to her mid-thigh area while she was asleep.
3. The complainant was shocked. She shouted. The complainant endeavoured to push the appellant away. She immediately got out of bed and left her room. She was crying. The appellant approached the complainant and asked her not to tell his parents about what he had done. The appellant then walked away. The complainant returned to her room, locked the door and showered. She packed her belongings and wrote a note which she left in the laundry.
4. As the complainant was preparing to leave the tavern, the appellant returned. He was crying and said that he felt like the devil. The appellant then departed again. The complainant hitchhiked to a regional urban area. She telephoned her mother in Europe and told her what the appellant had done. The complainant then reported the matter to the police.
5. The appellant was born on 4 July 1994. He was aged 23 at the time of the offending and was 25 when sentenced.
6. The appellant was the youngest of three siblings. His family remains intact. The appellant's home environment was free from substance abuse and violence. However, the appellant did experience some difficulties growing up. He was overweight. The appellant perceived his father to be a strict disciplinarian who had high expectations of the appellant. The appellant perceived that he received less attention from his parents than his sister because his sister had some significant personal issues.
7. The appellant has had some short term relationships, but has not established an enduring long term relationship.
8. The appellant did not enjoy school. He was bullied by other students. The appellant often retaliated and as a consequence was excluded occasionally from attending school.
9. After leaving school the appellant attended TAFE where he completed a pre-apprenticeship in heavy metal fabrication. He has worked in a variety of roles for short periods including as a boilermaker and a shark fisherman. However, he was unemployed for two years before he was sentenced. His employment had been terminated primarily as a consequence of his alcohol and drug misuse. However, the appellant wants to live a successful life, including working in his own business in the hospitality industry.
10. The appellant has sound physical health. Although he has not been diagnosed with a mental illness, the appellant has a history of hospital admissions for episodes of drug induced psychosis. He has some unresolved trauma stemming from sexual abuse he suffered when he was a teenager. Her Honour found that the sexual abuse had impacted significantly upon the appellant and her Honour took that matter into account in mitigation.
11. The appellant's alcohol and drug abuse began when he was a teenager. Initially, he used cannabis and then alcohol. Later, he consumed amphetamines and other drugs, including LSD. At the age of 14 or 15 he used methylamphetamine intravenously. The appellant has used alcohol in conjunction with methylamphetamine. He has treatment needs in relation to his alcohol and drug abuse.
12. The information before her Honour included a presentence report and a report dated 21 October 2019 from Mercurio Cicchini, a clinical psychologist.
13. The author of the presentence report said that the appellant maintained a stance of denial. In particular, the appellant did not accept any responsibility for his offending against the complainant. The appellant denied that the offence had happened as alleged by the complainant. The appellant appears to have asserted that the complainant was motivated in her account of the offence by the prospect of financial gain or compensation.
14. The author of the presentence report also said that the appellant had little understanding of appropriate conduct towards women, including regarding issues of consent. The appellant was an isolated individual who lacked self‑esteem. Her Honour found that the appellant had evinced no victim empathy for the complainant and that he had not demonstrated any remorse for his offending behaviour.
15. Mr Cicchini said that the appellant's medical history recorded 'extreme vulnerability towards anxiety (which he attempted to cope with using self-medication via drug and alcohol abuse), depression, and self-harm behaviour'. In the past, especially as a reaction to drug abuse, the appellant has been 'floridly psychotic, and has been previously diagnosed and treated as suffering from drug-induced psychosis'. The appellant has previously been admitted for lengthy periods of hospitalisation in a number of mental health facilities.
16. Mr Cicchini expressed the view that there was no evidence, apart from alcohol abuse, that the appellant's 'psychological vulnerabilities would have contributed significantly' to the offending in question.
17. Mr Cicchini's clinical impressions were that, as a result of childhood adversity (including physical and emotional bullying by peers at school and elsewhere for being overweight, sexual abuse and conflict with his father) the appellant had been experiencing emotional disturbances. The appellant informed Mr Cicchini that he had been treated with a variety of prescribed medications including medications for anxiety, depression, psychosis and mood stabilisation. Mr Cicchini recommended that a psychiatric review of the appellant's medication should be undertaken with a view to reducing his psychotic processes.
18. Her Honour said that it was clear that the appellant had significant treatment needs and that it was necessary for the appellant to address his mental health issues. While those issues remained untreated, the appellant's risk of reoffending was elevated.
19. Her Honour noted that the appellant had a prior criminal record. His previous convictions were for traffic and disorderly behaviour offences. In addition, as a juvenile, he was convicted of aggravated burglary and stealing offences. Her Honour commented that the appellant's previous convictions demonstrated a persistent disregard for the law and 'some quite blatant offending'. Her Honour said that, as a consequence of his prior criminal record, the appellant was not of prior good character.
20. Her Honour acknowledged, however, that she had received some written references from people who spoke well of the appellant.
21. Her Honour acknowledged a number of mitigating factors. First, although the appellant was aged 23 at the time of the offending and was 25 when sentenced, there was some mitigation in his having been a young man when he committed the offence. Secondly, there was mitigation in the trauma that the appellant had suffered in his formative years. Thirdly, the appellant made some limited admissions at the trial which facilitated, although to 'a very minor degree', the conduct of the trial.
22. Her Honour mentioned, in some detail, the contents of the complainant's victim impact statement. It is apparent from the statement that the offending has had a very significant impact upon the complainant's psychological and emotional well-being. For example, her self-esteem has deteriorated, she has experienced depressed mood and she is anxious about leaving her home. For some time she could not work and did not socialise. The complainant is hypervigilant and often suspicious of men. She has gained considerable weight as a result of compulsive eating. The complainant suffers from insomnia and often awakes as a result of traumatic nightmares about the offending. She found the trial, including the giving of her evidence, extremely difficult and traumatising.
23. Her Honour found that the appellant's offending was aggravated by the following factors. First, the appellant's offending conduct was persistent in that '[the complainant] repeatedly told [the appellant] that she was not interested in [him] in a sexual manner and repeatedly told [him], 'no' when [the appellant] tried to approach [the complainant]' (ts 259). Secondly, the appellant waited until the complainant was asleep before sexually offending against her, when she was vulnerable and defenceless. Thirdly, there was 'a degree of power imbalance' between the appellant and the complainant. The complainant was a foreigner who had recently arrived in Australia. She had limited English skills and she was the employee of the appellant's parents.
24. Her Honour said that it was important that she take into account the impact of the appellant's offending upon the complainant. Her Honour then said:

Now, it was pointed out in another case by Wheeler J in C v The State of Western Australia that there's no hierarchy for sexual penetrations. For example, although digital penetration will ordinarily be less serious than penile penetration that is not inevitably so. It might in particular circumstances be no less serious or even more serious. The seriousness of every offence of unlawful sexual penetration must be determined by its own individual circumstances. And I find in this case that the sexual penetration is no less serious by the fact that it was a digital penetration than it would have been had it been a penile penetration (ts 260 ‑ 261).

1. Her Honour then emphasised that general deterrence was an important sentencing consideration in cases of sexual penetration without consent. Her Honour commented that it was necessary to impose a sentence that made clear to others in the community, particularly other young men, that it was 'completely unacceptable to engage in sexual activity with a woman in circumstances such as these where the woman has said, "no", where [she is] asleep and therefore she is ... incapable of consenting or resisting' (ts 261). Her Honour said that this proposition had been reaffirmed recently by this court (Mitchell JA, Beech JA and I) in NPA v The State of Western Australia.[4]
2. Her Honour noted that in NPA [51] this court had said that '[i]n a case of a single count of penile penetration of the vagina where there is a plea of not guilty, a term of imprisonment of 5 to 6 years would not be unusual'. Her Honour then continued:

Now, the court emphasised that that doesn't mean that a sentence outside that range is thereby manifestly excessive or inadequate. The circumstances of offending vary widely and the available maximum sentence must not be overlooked. So the court [has] again said that that is not an unusual sentence in the case of penile-vaginal penetration. I take into account in this case that it was of short duration and you desisted when [the complainant] forcibly pushed you away with her knees and told you to stop (ts 261).

1. As I have mentioned, the appellant relies upon two grounds of appeal.
2. Ground 1 alleges, in essence, that the sentencing judge erred in characterising the appellant's offending in relation to count 2 as being 'no less serious by the fact that it was digital penetration than it would have been had it been a penile penetration' (ts 261).
3. Ground 2 alleges, in essence, that the sentence of 3 years 6 months' immediate imprisonment for ground 2 is manifestly excessive.

1. Counsel for the appellant submitted that the sentencing judge erred in characterising the appellant's offending as being 'no less serious by the fact that it was a digital penetration than it would have been had it been a penile penetration' (ts 261).
2. Counsel sought to rely upon this court's decision in Taylor v The State of Western Australia.[5] In Taylor, the appellant was convicted, on his plea of guilty, of one count of having sexually penetrated the complainant without her consent, by penetrating her vagina with his finger, contrary to s 325(1) of the Code. The sentencing judge (who was also the sentencing judge in the present case) characterised the appellant's offending as 'marginally less serious than a count of penile penetration but only marginally so'. In Taylor [78], Mazza JA, Beech JA and I said:

In our opinion, bearing in mind the observations of Wheeler JA in C and the comments of Steytler P in Akizuki, if the appellant had penetrated the complainant's vagina with his penis rather than his finger, and the other objective facts and circumstances were unaltered, the penile penetration would not merely have been 'marginally more serious' than the digital penetration. The penile penetration would likely have been perceived by the complainant as a materially greater affront to her personal dignity and bodily integrity than the digital penetration. In the circumstances, the digital penetration which actually occurred was materially less serious than penile penetration would have been. It was not merely 'marginally less serious'.

1. Counsel submitted that had the appellant penetrated the complainant's vagina with his penis, 'the impact that such an act would have had on the complainant would have been objectively more serious than if it were a digital penetration'. It was submitted that this was so because penile penetration would likely have been perceived by the complainant as a materially greater affront to her personal dignity and bodily integrity than digital penetration and penile penetration would have carried with it a perceived risk and fear of both impregnation and the contraction of a sexually transmitted infection. In the circumstances, it was not open to the sentencing judge to infer that the appellant's conduct in digitally penetrating the complainant's vagina was as serious as a penile penetration would have been.
2. According to counsel for the appellant, the sentencing judge's erroneous characterisation of the appellant's offending, in the present case, had a material impact upon the sentence for count 1 and the total effective sentence. Counsel argued that the material impact was evident because her Honour's consideration of the appropriate sentencing range turned upon the sentencing range identified in NPA [51] for sexual penetration without consent involving penile penetration. Consequently, her Honour's consideration of the sentences customarily imposed for offences of the kind committed by the appellant included cases that were not comparable.

1. Counsel for the State submitted that s 325(1) of the Code does not distinguish between the type or extent of sexual penetration in prescribing the maximum penalty of 14 years' imprisonment.
2. Counsel referred to a number of previous decisions of this court including C v The State of Western Australia,[6] The State of Western Australia v Akizuki[7] and Taylor.
3. Counsel acknowledged that, at the hearing of the appeal in Taylor, the State conceded that, having regard to the objective facts and circumstances of the offending in that case, it was difficult to sustain the sentencing judge's characterisation of the appellant's offending in that case as 'only marginally' less serious than penile penetration.
4. In the State's written submissions, counsel asserted, in effect, that:

(a) There are cases (which counsel did not cite) in which sentences for digital penetration have been higher than other cases involving penile penetration, but that was due to features other than the type of penetration which increased the relative seriousness of the offence; for example, the relationship between the parties, the surrounding circumstances of the offence and the use of force or the making of threats.

(b) However, 'where circumstances are like, an offence involving penile penetration has to date attracted a more severe sentence than an offence involving digital penetration'.

(c) The court's conclusion in Taylor [78] that 'bearing in mind the observations of Wheeler JA in C and the comments of Steytler P in Akizuki, if the appellant had penetrated the complainant's vagina with his penis rather than his finger, and the other objective facts and circumstances were unaltered, the penile penetration would not merely have been "marginally more serious" than the digital penetration' constituted a finding by the court that there was 'a hierarchy of sexual penetration'.

(d) The observation by Wheeler JA in C (which has been adopted in numerous subsequent decisions of this court including Taylor) that '[p]enile penetration will ... often, be perceived by the victim as a more serious affront to personal dignity and bodily integrity' than digital penetration is without any evidentiary foundation.

(e) The impact of the offence of sexual penetration on a complainant is 'entirely personal to the particular complainant and cannot be predicted or scaled in any way'. Further, the impact of a kind of penetration other than that actually inflicted would be 'speculative at best and would depend upon many factors' apart from the kind of penetration.

1. In the State's oral submissions, counsel advanced or accepted, in effect, these contentions:

(a) The 'starting point' in sentencing for digital penetration of the vagina without consent should be assimilated to the established sentencing range for penile penetration of the vagina without consent if 'all things are equal' (appeal ts 19 ‑ 20).

(b) There should be a ratcheting up of sentences for digital penetration, which ordinarily are less than for penile penetration, and there should be no difference in terms of starting point or ordinary outcome (appeal ts 20).

(c) However, later in her submissions, counsel said that the State did not 'seek to challenge penalties across the board' (appeal ts 45).

(d) It is apparent from the cases that 'de facto a range has been set in the sense [of] ... 5 to 6 years ... for penile penetration and ... ordinarily digital penetration is less' and, what the sentencing judge was saying in the present case, is that the present case was 'not less serious' (appeal ts 22).

(e) The decided cases in relation to the offence of sexual penetration without consent where the offenders are sentenced after trial indicate that the sentence for count 2 imposed on the appellant in the present case was 'well within range' (appeal ts 45).

(f) It is unproductive 'to classify offences in terms of their seriousness by the type of penetration' (appeal ts 45).

1. Counsel submitted that, in the present case, the complainant's victim impact statement demonstrated that the sentencing judge's finding in the present case that 'the sexual penetration is no less serious by the fact that it was a digital penetration than it would have been had it been a penile penetration' was wholly justified.
2. According to counsel, that finding by her Honour was not erroneous and consequently ground 1 should fail.

Ground 1: the offence created by s 325(1) of the Code

1. Section 325(1) of the Code provides, relevantly:

A person who sexually penetrates another person without the consent of that person is guilty of a crime and is liable to imprisonment for 14 years.

1. Section 325(1) appears in ch XXXI of the Code.
2. Section 319(1) provides, relevantly, that in ch XXXI, 'to sexually penetrate' means:

(a) to penetrate the vagina (which term includes the labia majora), the anus, or the urethra of any person with ‑

(i) any part of the body of another person; or

(ii) an object manipulated by another person,

except where the penetration is carried out for proper medical purposes; or

(b) to manipulate any part of the body of another person so as to cause penetration of the vagina (which term includes the labia majora), the anus, or the urethra of the offender by part of the other person's body; or

(c) to introduce any part of the penis of a person into the mouth of another person; or

(d) to engage in cunnilingus or fellatio; or

(e) to continue sexual penetration as defined in paragraph (a), (b), (c) or (d).

1. By s 9 of the Interpretation Act 1994 (WA), where a word or phrase is defined in a written law, other parts of speech and grammatical forms of that word or phrase have corresponding meanings.

Ground 1: the proper approach to sentencing where a statute includes several categories of sexual penetration within the definition of an offence: Ibbs v The Queen

1. In Ibbs v The Queen,[8] the High Court considered s 324D (repealed) of the Code. Section 324D (repealed) was the precursor of s 325(1), as currently enacted, and was relevantly in identical terms. Section 324F (repealed) was the precursor of s 319(1), as currently enacted, and like s 319(1) gave an extended meaning to the phrase 'to sexually penetrate'. For the purposes of this appeal, there is no material difference between the extended meaning given by s 324F (repealed) and s 319(1). Mason CJ, Wilson, Brennan, Toohey and Gaudron JJ rejected the proposition that, divorced from the circumstances, each kind of sexual penetration as defined in s 324F (repealed) was neither more nor less heinous than another (451). Their Honours said (451 ‑ 452):

The maximum penalty prescribed for the offence of sexual assault is reserved for the worst type of case falling within s 324D ... 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. When an offence is defined to include any of several categories of conduct, the heinousness of the conduct in a particular case depends not on the statute defining the offence but on the facts of the case. In a case of sexual assault, a sentencing judge has to consider where the facts of the particular case lie in a spectrum at one end of which lies the worst type of sexual assault perpetrated by any act which constitutes sexual penetration as defined. As Dwyer CJ said in Reynolds v Wilkinson ((1948) [1948] WALawRp 1; 51 WALR 17 at p 18):

'Crimes bearing the same general description have not equally evil content or characteristics, and offenders also differ in themselves.'

Ground 1: the proper approach to sentencing where a statute includes several categories of sexual penetration within the definition of an offence: decisions of the Court of Criminal Appeal of New South Wales and the Court of Appeal of Queensland

1. In R v AJP,[9] the Crown appealed against a sentence imposed upon the respondent for a single count of sexual intercourse with a child under the age of 10 years. The form of sexual intercourse was fellatio. The offence was created by s 66A of the Crimes Act 1900 (NSW). Section 66A is analogous to s 325(1) of the Code. The term 'sexual intercourse' was defined in s 61H of the Crimes Act to include various forms of sexual intercourse and sexual penetration. The definition in s 61H is analogous to the definition of 'to sexually penetrate' in s 319(1) of the Code. Simpson J (Adams J relevantly agreeing and Howie J agreeing) allowed the Crown's appeal. Simpson J referred to Ibbs and to a suggestion by senior counsel for the respondent in the appeal before her Honour that penile/vaginal intercourse would, in the circumstances, have amounted to a more serious offence. Her Honour then said:

It is not possible to create some kind of hierarchy of the seriousness of the various kinds of sexual intercourse contemplated by s 66A (and defined in s 61H). It is the facts and circumstances of each case, including the nature of the intercourse, that enables the proper evaluation of objective seriousness. While penile/vaginal penetration might be taken to be more serious than enforced fellatio, that does not mean that enforced fellatio necessarily falls somewhere below the midpoint of objective seriousness. There are many instances of conduct that come within the definition of sexual intercourse that would be significantly less serious than enforced fellatio ...

Other appropriate areas of enquiry in the consideration of the objective seriousness of a s 66A offence are, for example, how the offences took place, over what period of time, with what degree of force or coercion, the use of threats or pressure before or after the offence to ensure the victim's compliance with the demands made, and subsequent silence, and any immediately apparent effect on the victim [24] ‑ [25].

1. In R v Hibberd,[10] Price J (Tobias JA agreeing generally and James J agreeing) cited Ibbs and noted the definition of 'sexual intercourse' in s 61H of the Crimes Act. His Honour then said:

Non-consensual sexual intercourse by digital penetration has generally been considered to be less serious than an offence of penile penetration ... 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 [56]. (original emphasis)

(a) Tobias JA observed that, as the objective seriousness of an offence is 'wholly dependent on the facts and circumstances of the particular case ... any resort to prima facie assertions that one form of penetration is likely to be or generally will be more serious than another, is to be avoided' [21]; and

(b) James J commented that 'digital sexual intercourse without consent is a serious offence and ... there is no rule that it is necessarily less serious than penile sexual intercourse without consent' [26].

1. In DN v The Queen,[11] Beazley P (Davies and Garling JJ agreeing) considered Ibbs and referred to Hibberd in the course of identifying factors relevant to sentencing for a sexual offence that encompasses a range of offending conduct. Her Honour said that the factors of relevance 'include the degree of violence, any physical injury inflicted, the form of forced intercourse and any circumstances of humiliation and the duration of the offence' [107].
2. In Alarcon v The Queen,[12] Schmidt J (Basten JA agreeing and Fagan J relevantly agreeing) cited Ibbs and referred to Hibberd. Her Honour then stated:

(a) 'there can be no general assumption that digital sexual intercourse is less serious than penile sexual intercourse' [81];

(b) 'there is no prima facie assumption that digital penetration is generally less serious than other forms of penetration' [82]; and

(c) 'the objective seriousness of the particular offence must be assessed in light of the facts and circumstances disclosed by the evidence, because the sentence imposed must be proportionate to the offence committed' [83].

1. In R v Wark,[13] Cullinane J (McMurdo P and MacKenzie AJA relevantly agreeing) observed:

I think it can be accepted that as a general proposition that rape constituted by penile/vaginal or anal penetration will attract a higher sentence than rape cases involving digital or oral penetration. However there may be cases not involving penile penetration which because of their associated circumstances call for punishment which may be as great as or exceed cases involving penile penetration [37]. (emphasis added)

1. McMurdo P, after expressing her agreement with the reasons of Cullinane J, said:

Whilst cases of penile vaginal or penile anal penetration will often be more serious and attract heavier penalties than cases involving only digital penetration, the appropriate sentence in each case will turn on its own circumstances. Relevant exacerbating factors include whether the complainant is a child and if so, the age of the child; whether violence has been used; the physical and psychological effect of the offence on the victim; and whether the offender has previous relevant history [2].

1. In R v Colless,[14] the appellant was convicted and sentenced for numerous offences including five offences of rape. All of the offences of rape had been committed digitally. His appeal against sentence was allowed. The Court of Appeal of Queensland (de Jersey CJ, Holmes and Muir JJA) made these observations:

While the Criminal Code establishes the same maximum penalty, whether the rape be accomplished by penetration by the penis or digitally, it is reasonable to observe that, without additional aggravating features (weapons, extra brutality, threats of serious harm, premeditation, residual injury etc), a rape accomplished digitally may generally be seen as somewhat less grave than a rape accomplished by penile penetration. See R v Wark [2008] QCA 172. That is because it may be less invasive, would not carry a risk of pregnancy, and would ordinarily carry substantially reduced risk of infection [17]. (emphasis added)

1. However, their Honours noted, later in their reasons, that a number of authorities have warned against 'broad generalisations as to the comparative seriousness of penile and digital rape' [32]. Their Honours cited R v Brown[15] and R v Riley[16] in support of that proposition.

Ground 1: the proper approach to sentencing where a statute includes several categories of sexual penetration within the definition of an offence: decisions of this court

1. In The State of Western Australia v Turaga,[17] the State appealed against sentences imposed upon the respondent for 17 counts, being one count of deprivation of liberty, one count of threat to kill and 15 counts of aggravated sexual penetration without consent contrary to s 326(1) of the Code. The aggravated sexual penetration counts comprised 14 counts of sexual penetration involving digital, oral and penile penetration of the vagina and one count of penile penetration of the anus. This court (Wheeler JA, McLure JA and I) allowed the State's appeal and resentenced the respondent. Wheeler JA made observations about the severity of oral penetration or digital penetration compared to other types of sexual penetration. Her Honour said [16]:

Count 13 is one of performing cunnilingus. Generally, although they are all defined by statute as 'sexual penetration', the Courts would regard counts of oral penetration or digital penetration as being of lesser severity than other types of sexual penetration, following Ibbs v The Queen [1987] HCA 46; (1987) 163 CLR 447. However, Ibbs is not authority for the proposition that some types of sexual penetration are intrinsically less serious than others; rather, it was recognised in that case that the seriousness would depend upon the circumstances. In this case, the complainant said of this count, 'I felt disgusted as this act degraded me the most'. Given that it was plainly the respondent's purpose to degrade and humiliate the complainant during the course of this ordeal, and given that the parties had been in a long relationship so that the respondent would be expected to know how the complainant would react to this particular act, those circumstances, in my view, elevate the seriousness of the oral penetration in that particular count very considerably. (emphasis added)

1. In C, the appellant appealed against sentences imposed upon him on four counts of sexual offences against a child who was aged 12 or 13 at the time of the offending. The offences comprised one count of digital penetration of the child's vagina, two counts of indecent dealing and one count of inciting the child to engage in sexual behaviour. This court (Steytler P, Wheeler and McLure JJA) allowed the appeal and resentenced the appellant.
2. Steytler P (Wheeler JA relevantly agreeing and McLure JA agreeing) said that 'there is support in the cases for the proposition that digital penetration is ordinarily less serious than penile penetration' [13]. However, his Honour added that 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' [13].
3. Wheeler JA, although agreeing with Steytler P's reasons, added some observations of her own. Her Honour said at [28] that the support in the cases for the proposition that digital penetration is less serious than penile penetration appears to be supported by the observations of the High Court in Ibbs.
4. Wheeler JA referred to the second reading speech of the Minister in relation to the Bill which, upon enactment, became the Acts Amendment (Sexual Assaults) Act 1985 (WA) and introduced s 324F (repealed) into the Code. The Minister said:[18]

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.

1. Wheeler JA expressed the view that, in the majority of cases, 'any tension which may exist between the apparent legislative intent which appears from the definition [of sexual penetration] 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' [32]. Her Honour elaborated:

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.

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) [32] ‑ [33]. (emphasis added)

1. Wheeler JA expressed her acceptance, without reservation, of the proposition that a court sentencing in respect of sexual penetration without consent cannot simply assume that all such offences are of equal seriousness [34]. Her Honour then said:

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. ... 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 [35].

1. In Bentley v The State of Western Australia,[19] the appellant appealed against sentences imposed in respect of two groups of offences, both committed in March 2001. The offences were very serious and the sentences imposed were very lengthy. This court (Steytler P, Wheeler JA and I) allowed the appellant's appeal and resentenced him.
2. One group of offences included a significant number of sexual offences, being counts 3, 4, 5, 6, 8, 9 and 10.
3. Wheeler JA (Steytler P and I agreeing) said in relation to those counts [42]:

Turning finally to resentence the appellant, I deal first with the series of offences committed earlier in the day ‑ that is, the series involving the significant number of sexual assaults. His Honour the learned sentencing Judge grouped the sexual penetration offences into two different categories. Counts 3, 5, 6 and 8, which involved penetration of either the complainant's vagina or of her mouth with the appellant's penis, he plainly considered to be more serious, marking them with a heavier sentence. Counts 4, 9 and 10 were either digital penetration or cunnilingus. I would adopt that categorisation. (emphasis added)

Appropriate standards of sentencing for offending involving a prolonged and degrading series of sexual attacks facilitated by the use of a weapon, were recently considered by this Court in the case of The State of Western Australia v Turaga [2006] WASCA 199. Applying the standards of sentencing discussed in that case, it seems to me that an appropriate sentence for each of counts 3, 5, 6 and 8 would be 4 years (equivalent to 6 years prior to the transitional provisions), while an appropriate sentence for each of counts 4, 9 and 10 would be 2 years and 4 months (3½ years prior to the transitional provisions). (emphasis added)

1. In Cavill v The State of Western Australia,[20] Miller JA (McLure JA and I relevantly agreeing) referred at [266] to Wheeler JA's observations in C at [35]. Miller J then said that '[w]hilst there will be cases where penile penetration is a much more serious offence than digital penetration, digital penetration as an offence should not be underrated in its seriousness' [267].
2. In Akizuki, the State appealed against sentences imposed upon the respondent in respect of four offences against the complainant. The first was an offence of unlawful assault occasioning bodily harm; the second was an offence of aggravated sexual penetration without consent (contrary to s 326(1) of the Code); and the third and fourth were offences of attempted aggravated sexual penetration (s 326(1) and s 552(1) of the Code). The offence of aggravated sexual penetration without consent involved the respondent's penetration of the complainant's vagina with his fingers. The two offences of attempted aggravated sexual penetration without consent involved the respondent's attempted penetration of the complainant's vagina with his penis. This court (Steytler P, McLure and Miller JJA) allowed the State's appeal and resentenced the respondent.
3. Steytler P (McLure JA relevantly agreeing) pointed out that there is no tariff for sexual offences and the sentence to be imposed in a particular case depends upon its individual circumstances, having regard to the maximum penalty [3]. His Honour added [3]:

This is often said by the courts, but the proposition is one to which more than lip service must be paid. Nevertheless, it is important, when deciding upon the appropriate sentence in the individual circumstances of a case, to know what sentences are customarily imposed in cases involving similar offending. Otherwise, there is a risk that sentencing will become idiosyncratic and arbitrary.

1. After exhaustively reviewing previous cases, his Honour said that [68]:

(a) 'the circumstances of sexual offending, and of sexual offenders, are almost infinitely variable'; and

(b) consequently, 'the sentence imposed in one case can provide only very limited guidance in deciding what sentence should be imposed for a similar offence in another case'.

1. However, Steytler P then said that some conclusions could be drawn from his review of the decided cases, as follows [68]:

(1) An average starting point for a case of penile penetration of the vagina without consent, absent circumstances of aggravation, is in the order of 7 years' imprisonment under the former sentencing regime, or around 4 years and 8 months' imprisonment under the transitional regime. That starting point takes no account of any factors in mitigation.

(2) Because the circumstances of sexual offending and sexual offenders are so variable, nothing will be achieved by specifying a range of sentences customarily imposed. The range of potential aggravating features is so huge that features of that kind can either dramatically increase the sentence imposed (bearing in mind that the maximum sentence for an aggravated offence is 20 years' imprisonment: s 326 of the Criminal Code) or have little or no effect on the sentence imposed. The range of potential mitigating factors is at least equally extensive. They might result in a very large reduction in sentence or little or no reduction.

(3) Nor will anything be achieved by specifying a different starting point for each category of sexual penetration without consent. It should not be assumed that one form of sexual penetration is necessarily more, or less, serious than another. As Wheeler JA pointed out in C v The State of Western Australia [2006] WASCA 261 [35], there is no 'hierarchy of sexual penetration'. For example, although digital penetration will ordinarily be less serious than penile penetration, that is not inevitably so. It might, in particular circumstances, be no less serious or even more serious. The seriousness of every offence of unlawful sexual penetration must be determined by its own individual circumstances: C [35] (Wheeler JA); Cavill [266] ‑ [267] (Miller JA). (emphasis added)

1. His Honour commented that what he had written at [68] seemed to him to be 'about as much guidance as can be obtained from the cases' even though he appreciated that 'it is less than sentencing judges might wish' [69]. His Honour explained that this was 'a necessary consequence of the court's obligation to tailor each sentence to the individual circumstances of the case, having regard for the maximum penalty provided by the legislature and, to the extent that they can be of assistance, sentences customarily imposed in similar circumstances' [69].
2. In Akizuki, Miller JA referred at [106] to Wheeler JA's observations in Turaga at [16] to the effect that Ibbs is not authority for the proposition that some types of sexual penetration are intrinsically less serious than others. Miller JA then commented that '[g]enerally speaking, it can be taken that sentences for offences of digital penetration will be lower than penile penetration, but ... the seriousness of the individual case depends upon the circumstances' [108].
3. In Warburton v The State of Western Australia,[21] Wheeler JA (Pullin and Miller JJA agreeing) referred to the general range of sentences imposed for a single act of penetration of the vagina with the penis where the complainant is over the age of 16. Her Honour said [15] ‑ [20]:

In R v Quartermaine [2000] WASCA 341, in reasons with which Kennedy and Wallwork JJ agreed, I said at [16]:

'While there is no 'tariff' for offences of sexual penetration without consent, and the cases show that sentences imposed vary substantially, the general range of sentences imposed for a single act of penetration of the vagina with the penis where the victim is over the age of 16, remains of the order of about 6 years. A sentence of this kind is generally at the lower end of the scale for offences of this type, and is often the sentence which is imposed after taking into account mitigating factors. (citations omitted)'

I repeated these observations in R v Cleak [2004] WASCA 72 (at [13]), in reasons with which Steytler and McKechnie JJ agreed.

The range of sentences that I referred to in Cleak, of 6 to 9 years (4 to 6 under the post transitional sentencing regime) has been referred to, and the observations applied, in a number of other cases: see Woodley v The State of Western Australia [2008] WASCA 92 at [21], per McLure JA (Steytler P and Miller JA agreeing); McKerlie v The State of Western Australia [2006] WASCA 274 at 178 ‑ 183, per Roberts Smith JA (Steytler P agreeing); The State of Western Australia v Turaga [2006] WASCA 199 at [12], per Wheeler JA, and at [35] per McLure JA with Buss JA agreeing; The State of Western Australia v Akizuki [2008] WASCA 267 at [109] ‑ [117] per Miller JA.

It should be noted that in some of the cases referred to above, the range of 6 to 9 years' imprisonment has been specifically said to be a range which does not have regard to mitigating factors - that is, it would be a range of sentences before allowing for matters such as a plea of guilty, rather than the range of sentences finally imposed after taking such factors into account, where they existed. I do not understand observations of that kind to be inconsistent with observations in cases such as Cleak that a sentence of 6 years is often one imposed after mitigating factors. The whole point of a range is that there is no single sentence which is appropriate, even in what might be regarded as an 'ordinary' case. The observations about a range of 6 to 9 years, and the observations about the circumstances in which a term of 6 years has often been imposed, demonstrate no more than that it is not unusual for sentences for the 'ordinary' sexual penetration without consent to be imposed in circumstances where the sentencing judge takes as a 'starting point' a sentence which is higher, rather than lower, within that expressed range.

Finally, in relation to sentences commonly imposed, there is a recent decision of a coram consisting of five judges of this court, The State of Western Australia v Richards [2008] WASCA 134. The issue of principle in that case was whether s 41(4)(b) of the Criminal Appeals Act 2004 (WA) applied retrospectively. There were also issues concerning the weight which it was appropriate to give to cultural factors which, in the case of an Aboriginal offender, might cause imprisonment to weigh more heavily upon him. However, as the offence in question was one of sexual penetration without consent, Steytler P observed, at [49]:

'Ordinarily, an offence of this kind, where there is no plea of guilty or other exceptional circumstance, can be expected to result in a term of around 5 or 6 years' imprisonment after allowing for the operation of the transitional provisions. (citations omitted)'

Martin CJ, McLure and Buss JJA agreed with Steytler P in relation to the question of an appropriate sentence.

Ground 1: the standards of sentencing customarily observed with respect to a single count of non-aggravated penile penetration of the vagina

1. As I have mentioned, the maximum penalty for the offence for non‑aggravated sexual penetration without consent, contrary to s 325(1) of the Code, is 14 years' imprisonment.
2. By contrast, the maximum penalty for the offence of aggravated sexual penetration without consent, contrary to s 326(1) of the Code, is 20 years' imprisonment.
3. The standards of sentencing customarily observed with respect to a single count of non-aggravated penile penetration of the vagina, contrary to s 325(1) of the Code, have been referred to by this court in numerous cases. See, for example, Akizuki [68] and Warburton [15] ‑ [20], and my examination of those cases at [101] ‑ [107] above.
4. In Costa v The State of Western Australia,[22] Mazza JA and I dismissed the appellant's application for leave to appeal against sentence in respect of three offences of sexual penetration without consent, contrary s 325(1) of the Code. We said [49] ‑ [52]:

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' (C v The State of Western Australia [2006] WASCA 261 [35]). Nevertheless, in most cases, penile penetration is usually more serious than cunnilingus.

In The State of Western Australia v Akizuki ([2008] WASCA 267; [2008] WASCA 267; (2008) 192 A Crim R 373 [68]), Steytler P observed that an average starting point for an unaggravated single offence of penile sexual penetration without consent is around 4 years and 8 months' imprisonment (under the transitional regime) 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 or no effect. The range of potential mitigating factors is at least equally extensive. They might result in a very large reduction in sentence or little or no reduction.

In The State of Western Australia v Richards ([2008] WASCA 134; [2008] WASCA 134; (2008) 37 WAR 229 [49]), Steytler P observed that an unaggravated single 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 around 5 to 6 years' imprisonment.

In Warburton v The State of Western Australia ([2009] WASCA 113; [2009] WASCA 113; (2009) 196 A Crim R 361 [11]), Wheeler JA said that a common range of sentences for unaggravated offences of sexual penetration without consent, without taking into account any particular mitigating or aggravating offences, was around 4 to 6 years' imprisonment (under the transitional regime). (original emphasis)

1. More recently, in The State of Western Australia v Hussian,[23] this court, (Mazza JA, Beech JA and I) made these comments (which are consistent with long standing decisions of this court) about the standards of sentencing customarily observed with respect to a single count of non‑aggravated penile penetration of the vagina, contrary to s 325(1) of the Code:

A sentencing disposition which involves a starting point different from the starting point identified by Steytler P in Akizuki [at [68]] will not necessarily be manifestly excessive or manifestly inadequate. The facts and circumstances of a particular case may require a higher or a lower starting point.

Where an offender is convicted after trial of a single count of non‑aggravated penile penetration of the vagina, a sentence of 5 to 6 years' imprisonment is not unusual. See The State of Western Australia v Richards ([2008] WASCA 134; [2008] WASCA 134; (2008) 37 WAR 229 [49] (Steytler P; Martin CJ, McLure, Buss & Miller JJA relevantly agreeing)). However, it must be emphasised that a sentence outside that range will not necessarily be manifestly excessive or manifestly inadequate. The circumstances of offending and offenders vary widely. Sentences significantly beyond the range identified in Richards may, having regard to the maximum penalty and the relevant facts and circumstances, be justified in particular cases.

See also, to similar effect, the comments of Mitchell JA, Pritchard JA and I in Kabambi v The State of Western Australia[24] and Lakay v The State of Western Australia.[25]

1. It is apparent from the decisions and observations of this court (including the decisions and observations in The State of Western Australia v Richards,[26] Akizuki, Warburton, Kabambi, Lakay and Hussian) that a sentence of 4 to 6 years' immediate imprisonment would not be unusual for a single count of penile penetration of the vagina without consent, contrary to s 325(1) of the Code, where the complainant is of or over the age of 16 and there is no plea of guilty. In recent cases, a sentence of 5 to 6 years' immediate imprisonment has been said to be not unusual in those circumstances.

Ground 1: the standards of sentencing customarily observed with respect to a single count of non‑aggravated digital penetration of the vagina

1. In Grubisic v The State of Western Australia,[27] the appellant was convicted, after trial, on one count of sexually penetrating the complainant, without her consent, by inserting his finger into her vagina, contrary to s 325(1) of the Code. He was sentenced to 3 years' immediate imprisonment. The appellant appealed to this court against conviction and sentence. His appeals were dismissed.
2. The salient facts of the case were these. The complainant was aged 19 and was in Western Australian on a working holiday. She stayed with her uncle and his partner at their house in Boddington. On the night in question the complainant and a friend went to the Boddington Hotel and had a few drinks. The friend introduced the complainant to two men, one of whom was the appellant. Later that evening, the friend invited the two men to return with her and the complainant to the complainant's uncle's house. At the house, the group sat on the front veranda drinking. The complainant's uncle and his partner joined the group. The complainant went inside the house to make a telephone call. She was lying on the bed with the door closed when the appellant came into the room. The primary judge found that the appellant forced himself upon the complainant. It was a frightening assault which the complainant could do nothing to repel. The appellant held the complainant down, kissed her on the neck, rubbed his hand between her legs, ran his hand up her shorts and tried to pull down her underwear. The appellant forcefully inserted his finger into the complainant's vagina causing an abrasion. The primary judge found that the appellant's behaviour was violent and abusive. The appellant was a large and powerful man and he only desisted when the complainant's uncle approached the room. The appellant spoke rudely and cruelly to the complainant by accusing her of 'crying wolf'. The appellant had a prior criminal record which revealed 'a tendency towards violent behaviour'. The appellant was aged 34 at the time of sentencing. He was a scaffolder by trade but was unemployed at the time of the trial.
3. In this court, Hall J (Pullin JA agreeing) referred approvingly to the observations of Wheeler JA in C as follows [150]:

In C, Wheeler JA noted that penile penetration is often more serious because of the actual or potential harm to the victim, including the risk of pregnancy or a sexually transmitted disease. Penile penetration will also often be perceived by the victim as a more serious affront to personal dignity and bodily integrity. However, there can be very serious cases involving digital penetration, particularly where it is forceful, serious in its consequences or intended to be degrading or humiliating for the victim.

1. Hall J then reviewed a number of prior cases in which offenders who had been convicted of offences involving digital penetration of the vagina had appealed against their sentences:

In Miles v The State of Western Australia [2010] WASCA 93 a number of cases involving digital penetration without consent were considered: see Jenkins J [43] ‑ [49]. The four cases referred to included Mountain v The State of Western Australia [2009] WASCA 161. In that case the offences were committed in the toilet of a nightclub. The complainant said that she blacked out and that her next recollection was of being on the floor and the offender digitally penetrating her vagina. The offender was found guilty after trial of four counts of sexual penetration and one count of attempted sexual penetration. The four counts of sexual penetration related to four instances of digital penetration of the complainant's vagina and anus. On each count the offender was sentenced, on appeal, to 2 years 4 months' imprisonment. Two of the sentences were to be served cumulatively making a total sentence of 4 years 8 months' imprisonment.

In Cavill v The State of Western Australia [2008] WASCA 108 the offender was convicted following trial of one count of digital penetration. He was acquitted of a number of other offences. He was sentenced to 15 months' imprisonment and his appeal against that sentence was dismissed. Miller JA said that 'the sentence of 15 months' imprisonment was, in all the circumstances, well within the range of sentences that could have been imposed for the offence'. The offender in that case had no prior record of convictions apart from a traffic related matter and was categorised as being a low risk of re offending.

In Church v The State of Western Australia [2007] WASCA 215; (2007) 177 A Crim R 23 the offender pleaded guilty to one count of digital penetration and two counts of indecent dealing with a 16 year old employee. A sentence of 2 years' imprisonment for the offence of digital penetration was imposed. Sentences of 12 months' imprisonment, concurrent, were imposed in relation to each of the indecent dealing offences. An appeal against the sentences was dismissed. The offender in that case was 48 years of age at the time of the offence, had no previous criminal history and had favourable antecedents. The offender had admitted his conduct when interviewed by the police and pleaded guilty.

In Deering v The State of Western Australia [2007] WASCA 212 the offender pleaded guilty to one count of digital penetration of a child aged between 13 and 16 and four counts of penile penetration. The offence of digital penetration was the first to occur and involved penetration of the complainant's vagina by the offender's finger. On appeal the offender's total sentence was reduced to 2 years 6 months' imprisonment. A sentence of 8 months' imprisonment was imposed on the count of digital penetration. The offender was 23 years of age and a lack of consent was not an element of the offences in that case. The offender pleaded guilty on the fast track system and had not been previously imprisoned. In re sentencing the offender Wheeler JA said that a sentence of 18 months' imprisonment was appropriate for the digital penetration but this was reduced to 8 months' taking into account the plea of guilty and adjustments for the transitional provisions.

In Miles the offender was convicted of one offence involving digital penetration of a 17 year old female. The complainant had been intoxicated and fell asleep at a friend's house. She was woken by the appellant, who was lying beside her and two of his fingers were inside her vagina. No force was involved in the offence. The offender was convicted following a trial and sentenced to 2 years' imprisonment. That sentence was held to be within the appropriate range.

In Miles Jenkins J noted that the four earlier cases referred to indicated that the sentences in those cases for offences of digital penetration ranged from 8 months' to 2 years 4 months' immediate imprisonment. It was not suggested that those cases represented the appropriate limits of the range for the exercise of discretion in all such cases. Clearly a sample of four cases was insufficient to reach such a conclusion. In any event, the range of sentences customarily imposed for a particular offence does not establish the range within which sound sentencing discretion may operate; The State of Western Australia v Akizuki [71] (McLure JA).

1. The court in Grubisic held that the sentence of 3 years' immediate imprisonment was not manifestly excessive. There was little, if any, mitigation. By contrast, there were a number of aggravating factors. Those factors included the differences in the age and strength between the appellant and the complainant; the appellant's use of force; the offending having occurred in the complainant's bedroom where she should have been safe; the appellant having compounded his offence by telling the complainant's uncle that the complainant would bring a false complaint; and the significant distress caused to the complainant by the offending. Hall J expressed the view that the sentence was 'a severe one', but the sentence could be justified in the circumstances of the case [159].
2. In The State of Western Australia v Vartolo,[28] the State appealed against sentences imposed upon the respondent for two counts of sexual penetration without consent, contrary to s 325(1) of the Code. Each of the offences was committed against the same complainant. The respondent pleaded guilty. The pleas were entered after a trial date had been set. Count 1 involved digital penetration of the complainant's vagina. Count 2 involved penile penetration of the complainant's vagina. The sentencing judge imposed a sentence of 1 year's immediate imprisonment for count 1 and 2 years' immediate imprisonment for count 2. The sentences were ordered to be served concurrently. The total effective sentence was therefore 2 years' immediate imprisonment.
3. The facts of the offending in Vartolo were, relevantly, as follows. On the evening of Friday 26 April 2013, the complainant was drinking with her boyfriend (and another person) at their home unit in Northbridge. During the evening the boyfriend and the other person went into town. The complainant went to bed and fell asleep. Early in the morning of Saturday 27 April 2013, the complainant's boyfriend returned to their home unit, in an intoxicated state, with the respondent. The respondent was, at the time, residing in a backpackers hostel. How the boyfriend and the respondent met was unknown. However, there was no doubt that the complainant and the respondent were complete strangers to each other. The complainant's boyfriend went into the bathroom and fell asleep. The respondent entered the bedroom in which the complainant was sleeping. There, he removed his clothes and laid down beside the complainant. The respondent fondled the complainant's breasts and used his fingers to rub her genitals. The respondent then penetrated her vagina with his fingers (count 1). The respondent continued to rub the complainant's vagina before inserting his penis into her vagina. He then moved on top of her and engaged in sexual intercourse (count 2).
4. This court (McLure P, Mazza JA and I) allowed the State's appeal and resentenced the respondent. Mazza JA (with whose reasons McLure P and I agreed) reviewed a number of decided cases. His Honour then noted that the respondent in Vartolo had aberrant attitudes and beliefs which underpinned his offending and from which he did not resile; the respondent's attitude towards his offending was defiant; the respondent completely disregarded the complainant's dignity and welfare; and he had no remorse or insight. All of those matters accentuated the need for personal deterrence. The respondent was resentenced to 2 years' immediate imprisonment for count 1 and 3 years 6 months' immediate imprisonment for count 2. Having regard to the one transaction principle, the new sentences were ordered to be served concurrently. The new total effective sentence was therefore 3 years 6 months' immediate imprisonment.
5. Other decisions of this court or its predecessor, the Court of Criminal Appeal, in relation to appeals against sentence involving a single count of non‑aggravated digital penetration of the vagina include Powell v The Queen,[29] Coulter v The Queen[30] and Prempeh v The State of Western Australia.[31]
6. It is apparent from the decisions and observations of this court and its predecessor (including the decisions and observations in Powell, Coulter, Cavill, Mountain v The State of Western Australia,[32] Miles v The State of Western Australia,[33] Grubisic, Vartolo and Taylor) that a sentence of 15 months to 3 years' immediate imprisonment would not be unusual for a single count of digital penetration of the vagina without consent, contrary to s 325(1) of the Code, where the complainant is of or over the age of 16 and there is no plea of guilty.

Ground 1: various propositions apparent from the text of s 325(1) of the Code and my review of the case law

1. Various propositions are apparent from the text of s 325(1) of the Code and my review of the case law.
2. First, the inclusion of several categories of sexual penetration within the offence created by s 325(1) does not carry any implication that each category is as reprehensible as another if done without consent. Attention should be directed to where the facts and circumstances of the particular offence and the particular offender lie on the spectrum that extends from the least serious instances of offending against s 325(1) to the worst category of offending against that provision, being those offences so grave as to warrant the maximum penalty.
3. Secondly, it is impossible to create a hierarchy of the seriousness of the several categories of sexual penetration within the offence created by s 325(1). The facts and circumstances of each particular case determine the seriousness of the offence.
4. Thirdly, the absence of any hierarchy of sexual penetration means that some forms of penetration cannot, in any and all circumstances, be considered less serious than others. That is, there can be no general assumption that some forms of penetration are intrinsically less serious than other forms of penetration. The seriousness of an offence against s 325(1) must be determined having regard to the facts and circumstances of the particular case.
5. Fourthly, a review of the decisions of this court and its predecessor reveals that ordinarily, as a matter of fact, sentences for offences against s 325(1) which involve digital penetration are lower than for offences against s 325(1) which involve penile penetration, but the seriousness of each individual case depends upon its particular facts and circumstances.
6. Fifthly, a review of the decisions of this court reveals that where an offender is convicted after trial of a single count of non-aggravated penile penetration of the vagina, contrary to s 325(1), and the complainant is of or over the age of 16, a sentence of 4 to 6 years' immediate imprisonment is not unusual. In recent cases, a sentence of 5 to 6 years' immediate imprisonment has been said to be not unusual in those circumstances.
7. Sixthly, a review of the decisions of this court and its predecessor reveals that where an offender is convicted after trial of a single count of non‑aggravated digital penetration of the vagina, contrary to s 325(1), and the complainant is of or over the age of 16, a sentence of 15 months to 3 years' immediate imprisonment is not unusual.
8. Seventhly, it must be emphasised that a sentence outside the ranges identified at [129] and [130] above will not necessarily be manifestly excessive or manifestly inadequate. The circumstances of offending and offenders vary widely. Sentences significantly beyond those ranges may, having regard to the maximum penalty and the relevant facts and circumstances, be justified in particular cases.
9. It is not appropriate, in the present case, for this court to consider whether the standards of sentencing customarily observed with respect to a single count of non-aggravated digital penetration of the vagina, contrary to s 325(1) of the Code, are inadequate and should be increased. If the State wishes to make a submission to that effect it should be made in the context of a State appeal against sentence after proper notice of the submission has been given to the respondent and to the court.

1. In Taylor, the appellant appealed against a sentence imposed upon him for one count of sexually penetrating the complainant without her consent, by penetrating her vagina with his finger, contrary to s 325(1) of the Code. The appellant pleaded guilty. The sentencing judge imposed a sentence of 3 years' immediate imprisonment.
2. At the time of the offending in Taylor the appellant was aged 59 and the complainant was aged 27. They knew each other as a result of their involvement in a local sporting club, but they had never been in any form of relationship. In the early hours of 1 January 2017, the appellant and the complainant went to a mutual friend's house to continue New Year's Day celebrations. Both the appellant and the complainant had been drinking. Other people were present at the house but they left at about 4.00 am. At about 5.00 am, the complainant went into the master bedroom and went to bed wearing a singlet and pants. She covered herself with a doona and fell asleep. The complainant awoke. She was naked and lying on her back. The appellant was penetrating her vagina with his finger. When she realised what was happening, the complainant rolled away and, after finding her singlet and pants, went to the front of the house. The mutual friend saw that the complainant was crying and upset as she left the house and walked to her car.
3. On 6 January 2017, the appellant was arrested. He participated in an electronically recorded interview with police. The appellant admitted getting into bed with the complainant and digitally penetrating her vagina. However, he asserted that the penetration was consensual.
4. Initially, the appellant pleaded not guilty. A trial date was set. The appellant entered his plea of guilty on the morning the trial was to begin. The plea was entered following a concession by the State that 'there was a period of time during which the complainant was in the process of waking and the complainant may have said something or done something that may have given [the appellant] an honest belief that she was consenting, but that it was unreasonable [for the appellant] to hold that belief given that she was in the process of waking at the time'.
5. The sentencing judge said that she would sentence the appellant in accordance with the State's concession.
6. At the time of sentencing the appellant was aged 61 years. He was born in New South Wales. His father abused alcohol and was violent towards the appellant, his siblings and their mother. When the appellant was aged 14 his parents separated. The appellant lived with his father. The father's violence towards the appellant and his siblings continued. When he was aged 17 the appellant began living independently of his father. There was no further contact between them.
7. When the appellant was aged 28 years he located his mother who was then living in Western Australia. The appellant began living with her. He cared for his mother until her death on 20 July 2018. The sentencing judge recognised that his mother's death had a significant impact upon the appellant.
8. The appellant left school after year 10. He was then aged 17 years. He had repeated two years at school because of learning difficulties. The appellant was educated in remedial or special classes. After leaving school, the appellant was employed in a number of different occupations, including in factories and timber yards and as a cleaner.
9. The appellant had been involved in three intimate relationships. One of those relationships was extremely brief. Another relationship lasted for about four years and ended in 1975 when the appellant was imprisoned. The third relationship began when the appellant was aged in his mid‑thirties and lasted for about three years. The relationship produced a son. The appellant had contact with his son shortly after the relationship ended. However, since that time they had not had any contact. It was suggested that the appellant had other children with whom he had no contact.
10. The appellant had a history of alcohol addiction and abuse.
11. The appellant had not consumed alcohol since he suffered a heart attack in June 2018. He was admitted to hospital for about 14 days for treatment of the heart attack. On 26 June 2018, surgery was performed to insert two stents into his heart. The appellant took medication for his heart. A report from Dr Yin Yin Wee that was before the sentencing judge indicated that the appellant had an appointment on 13 September 2018 at Sir Charles Gairdner Hospital to discuss the possibility of further surgery in relation to his heart. Her Honour was not informed of what had occurred at the appointment or subsequently.
12. The appellant had reduced kidney function and was receiving treatment for that condition.
13. The appellant had a prior criminal record. His previous convictions were relatively minor and, with one exception, occurred between 1975 and 1985. The exception was that in 1998 the appellant was convicted of driving a motor vehicle while his licence was under fines suspension.
14. The information before the sentencing judge included a psychological report from Ms Tanina Oliveri, a clinical and forensic psychologist, and a pre-sentence report.
15. Ms Oliveri expressed the view that the offending in question appeared to have been 'an aberration' and that the following factors were likely to have contributed to the offending:

(a) the appellant's borderline intelligence which had resulted in problems with abstract reasoning, learning, insight, judgment, consequential thinking, perspective taking, planning and organisational skills, employment and relationships;

(c) the belief that the complainant had been sexually active with others;

1. Ms Oliveri assessed the appellant to be at a low risk of reoffending in a sexual manner. However, Ms Oliveri commented that it was not possible to predict recidivism with certainty and that the assessment of recidivism is limited by the information available to the assessor.
2. According to Ms Oliveri, there was no evidence that the appellant suffered any 'major mental health problems'.
3. The author of the pre‑sentence report noted that, despite having pleaded guilty, the appellant denied that his actions in relation to the complainant were non‑consensual. The appellant minimised his offending and attempted to portray himself as the victim. He was unremorseful, lacked victim empathy and showed very little understanding of the traumatic impact his actions may have had on the complainant. The author of the report stated that the appellant had used insulting and offensive terms in referring to the complainant. The appellant asserted that the complainant was well known to the group of people who attended the New Year's Day celebrations for her promiscuity and drug taking.
4. Her Honour said that although the appellant was to be sentenced on the basis that he had an honest but unreasonable belief that the complainant was consenting, it was necessary for her Honour 'to determine the degree of the reasonableness of that belief' (ts 57).
5. The sentencing judge also said that the appellant's cognitive abilities and borderline intellectual functioning were factors that her Honour would take into account when she considered 'the reasonableness of [his] mistaken belief ... that the complainant was consenting' (ts 59 ‑ 60).
6. Her Honour recounted that the appellant had got into bed with the complainant and sexually assaulted her while she was sleeping. The complainant had done nothing to indicate that she was interested in the appellant. The absence of force or intimidation by the appellant was counterbalanced 'to a significant extent by the serious abuse of [the complainant's] vulnerability, there being no opportunity to attempt to prevent the commission of the offence' (ts 62).
7. The sentencing judge found that the appellant did not have a reasonable belief that the complainant was consenting 'and the only basis upon which it can be explicable is in the context of [the appellant's] limited intelligence coupled with [his] intoxication at the time' (ts 62 - 63). The appellant's honest belief was not 'in any way' reasonable (ts 63).
8. Her Honour noted that she '[had taken] into account to a limited degree, [the appellant's] level of intellectual functioning [in] considering the issue of remorse' because 'that [had] impacted on [his] ability to ... understand how serious [his offending was] and what an impact it [had] on [the complainant]' (ts 61).
9. The sentencing judge recounted that Ms Oliveri had assessed the appellant to be at a low risk of reoffending in a sexual manner (ts 61). Her Honour did not expressly disagree with that assessment.
10. However, her Honour said she was concerned that 'if [the appellant was] ever placed in a situation where [he had] access to a sleeping woman or a woman and where [he had] been drinking, because [he did not] understand the impact of [his] offending, that [he] may do it again' (ts 61).
11. The sentencing judge referred to personal deterrence and general deterrence as sentencing factors. Her Honour explained that she had to impose a sentence on the appellant that would deter others from committing similar offences. Her Honour also explained that she had to impose a sentence that would deter the appellant 'from ever doing this again to any [woman] should [he] be in a position where [he is] able to access a woman and [he is] intoxicated' (ts 61).
12. Her Honour reduced the head sentence she would otherwise have imposed for the offence by 15%, pursuant to s 9AA of the Sentencing Act 1995 (WA), to recognise the appellant's plea of guilty.
13. The sentencing judge said that she took into account a character reference from the appellant's sister who said the appellant was 'a very respectful person and a decent, good human being' (ts 62).
14. Her Honour observed that the appellant had 'significant and ongoing health issues' and that, by virtue of his age and his medical condition, prison would have 'an impact upon [the appellant], perhaps greater than someone in good health and younger'. Her Honour said that she would reduce the term of imprisonment she would otherwise have imposed on account of the appellant's age and medical condition (ts 59).
15. The sentencing judge mentioned the appellant's prior criminal record and said the record was 'dated'. Her Honour accepted that 'for the last 20 years [the appellant has been] a person of good character' (ts 60).
16. Her Honour made these comments before imposing the sentence of 3 years' immediate imprisonment:

[T]here is no hierarchy of sexual penetration. Although digital penetration will ordinarily be less serious than penile penetration, that's not inevitably so. In some cases, it may be no less serious or even more serious.

Digital penetration is sometimes considered less serious because it doesn't carry with it the risk of impregnation or the transmission of sexually transmitted diseases. I have taken it into account. In this case, I consider it marginally less serious than a count of penile penetration, but only marginally so.

This is a young woman who awoke to being penetrated by someone and it must have been clearly horrifying for her, and she was visibly upset and distressed and the ongoing impact of this sort of [offence] on complainants is well recognised by the courts.

I have considered all of the sentencing options ... [I]n your case, only an immediate term of imprisonment is appropriate. I've taken into account your plea of guilty, your medical condition, your cognitive level of functioning in determining the appropriate term to be imposed (ts 64).

1. In Taylor, there was no victim impact statement from the complainant.
2. Mazza JA, Beech JA and I allowed the appellant's appeal in Taylor on two grounds, namely ground 1 and ground 2(b).
3. Ground 1 alleged, in essence, that the sentence of 3 years' immediate imprisonment was manifestly excessive. Ground 2(b) alleged, in essence, that the sentencing judge erred in characterising the offending as 'marginally less serious than a count of penile penetration but only marginally so' (ts 64).
4. This court's reasoning in relation to ground 1 was, relevantly, as follows:

In Akizuki [68], Steytler P concluded that the circumstances of sexual offending and of sexual offenders are almost infinitely variable. Sentences imposed in one case can provide only very limited guidance in deciding what sentence should be imposed for similar offences in another case.

In general, an offender who has been convicted of a sexual offence which includes, as an element, the absence of consent, and who honestly but unreasonably believed that the victim was consenting to the act in question, will be less culpable than an offender who did not have an honest belief that the victim was consenting. However, whether and, if so, to what extent an honest belief will, in a particular case, be a mitigating factor, depends on all the relevant facts and circumstances. See, by analogy, PAS v The State of Western Australia; BGE v The State of Western Australia.

...

As will be apparent from our summary of the facts and circumstances of the offending and the sentencing judge's sentencing remarks, the appellant's offending was serious.

There were, however, some factors which mitigated the seriousness of his offending. First, the appellant entered a plea of guilty. Her Honour afforded him a 15% discount under s 9AA of the Sentencing Act. Secondly, the appellant did not have a relevant prior criminal record. Thirdly the appellant had an honest (although wholly unreasonable) belief that the complainant was consenting. Fourthly, the appellant had an intellectual impairment. This reduced his moral culpability but, as we have mentioned, the impairment weighed both positively and negatively in the balance. Fifthly, the appellant had significant and ongoing health issues. By virtue of his age and his medical condition, prison would be more difficult for the appellant than for someone who was younger and in good health.

As we have explained, personal deterrence was an important sentencing consideration. General deterrence was a relevant sentencing factor, but the appellant's intellectual impairment moderated or reduced its importance.

The protection of vulnerable women was another important sentencing consideration.

We are persuaded, after taking into account the maximum penalty for the offence; the facts and circumstances of the offending; the vulnerability of the complainant; the sentencing dispositions in previous cases with at least some features comparable to the appellant's offending; the place which the appellant's criminal conduct occupies on the scale of seriousness of offending of this kind; the appellant's personal circumstances and antecedents; and all other sentencing factors (including the matters of mitigation), that the sentence of 3 years' immediate imprisonment was unreasonable or plainly unjust. A sentence of immediate imprisonment of a materially shorter length should have been imposed. We would imply error from the sentencing outcome [95] ‑ [96], [98] ‑ [102]. (footnotes omitted)

1. This court's reasoning in relation to ground 2(b) was, relevantly, as follows:

In C v The State of Western Australia, Wheeler JA observed:

'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.

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).'

In The State of Western Australia v Akizuki, Steytler P made these comments:

'It should not be assumed that one form of sexual penetration is necessarily more, or less, serious than another. As Wheeler JA pointed out in C v The State of Western Australia [2006] WASCA 261 [35], there is no 'hierarchy of sexual penetration'. For example, although digital penetration will ordinarily be less serious than penile penetration, that is not inevitably so. It might, in particular circumstances, be no less serious or even more serious. The seriousness of every offence of unlawful sexual penetration must be determined by its own individual circumstances: C [35] (Wheeler JA); Cavill [266] - [267] (Miller JA).'

An offender's digital penetration of a female's vagina, without consent, is undoubtedly serious. Digital penetration as an offence should not be underrated in its seriousness. See Cavill v The State of Western Australia. However, cases of digital penetration, as with other forms of sexual penetration, without consent, can vary significantly in the degree of their seriousness.

In the present case, the seriousness of the appellant's offending is apparent from a number of circumstances. First, the complainant was highly vulnerable in that she was alone and asleep. She was unable, in those circumstances, to take any action to endeavour to avoid the commission of the offence. Secondly, the appellant entered the bedroom and got into bed with the complainant without any reasonable basis for any belief that the complainant might welcome his presence or might be interested in any form of sexual interaction with him. Thirdly, the complainant suffered significant emotional trauma as a result of the appellant's actions.

Her Honour's characterisation of the appellant's offending did not involve the making of a finding of fact. Rather, her Honour was making a value judgment.

At the hearing of the appeal, counsel for the State conceded (properly, in our opinion) that, having regard to the objective facts and circumstances of the offending, it was difficult to sustain the sentencing judge's characterisation of the appellant's offending as 'only marginally' less serious than penile penetration (appeal ts 45).

In our opinion, bearing in mind the observations of Wheeler JA in C and the comments of Steytler P in Akizuki, if the appellant had penetrated the complainant's vagina with his penis rather than his finger, and the other objective facts and circumstances were unaltered, the penile penetration would not merely have been 'marginally more serious' than the digital penetration. The penile penetration would likely have been perceived by the complainant as a materially greater affront to her personal dignity and bodily integrity than the digital penetration. In the circumstances, the digital penetration which actually occurred was materially less serious than penile penetration would have been. It was not merely 'marginally less serious' [72] ‑ [78]. (footnotes omitted)

1. In Taylor, this court re-exercised the sentencing discretion by substituting a sentence of 2 years' immediate imprisonment.
2. A number of observations may be made about [78] of this court's reasons in Taylor, which is the final paragraph of the passage set out at [168] above.
3. As to the first sentence in [78] of Taylor:

(a) The relevant observations of Wheeler JA in C (which have been referred to with approval in many subsequent cases in this court) were to the effect that:

(i) in the majority of cases, penile penetration is more serious than digital penetration, fellatio or cunnilingus;

(ii) that 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;

(iii) penile penetration will also, often, be perceived by the victim as a more serious affront to personal dignity and bodily integrity;

(iv) in addition, many cases of penile penetration tend to be associated with a greater degree of force or violence than cases of digital penetration;

(v) however, there can be very serious cases which do not involve penile penetration;

(vi) some cases of digital penetration can be extremely forceful and very serious in their consequences; and

(vii) some other forms of penetration may be effected because the offender considers that they are more likely to be degrading and humiliating to the victims.

(b) The relevant comments of Steytler P in Akizuki (which have been referred to with approval in many subsequent cases in this court) were to the effect that it should not be assumed that one form of sexual penetration is necessarily more, or less, serious than another; for example, although digital penetration will ordinarily be less serious than penile penetration, that is not inevitably so.

(c) Mazza JA, Beech JA and I expressly adopted the observations of Wheeler JA in C and the comments of Steytler P in Akizuki. The remarks which followed in [78] of Taylor were made in the context of and conditioned by reference to those observations and comments.

1. The statement by the sentencing judge in Taylor that the count of digital penetration in that case was '[only] marginally less serious than a count of penile penetration' indicated that, in her Honour's view, the sentence that should be imposed on the appellant in Taylor for the count involving digital penetration should be only marginally less than the sentence that would have been imposed if the count had involved penile penetration.
2. The sentencing judge in Taylor made that statement in circumstances where the decisions of this court and its predecessor reveal that ordinarily, as a matter of fact, sentences for offences against s 325(1) which involve digital penetration are lower than for offences against s 325(1) which involve penile penetration, although the seriousness of each individual case depends upon its particular facts and circumstances. As I have mentioned, a review of the decisions of this court and its predecessor reveals that where an offender is convicted after trial of a single count of non-aggravated penile penetration of the vagina, contrary to s 325(1), a sentence of 4 to 6 years' imprisonment is not unusual, whereas where an offender is convicted after trial of a single count of non-aggravated digital penetration of the vagina, contrary to s 325(1), a sentence of 15 months to 3 years' imprisonment is not unusual, the complainant being of or over the age of 16. In recent cases, a sentence of 5 to 6 years' immediate imprisonment for a single count of non-aggravated penile penetration of the vagina, in the circumstances I have mentioned, has been said to be not unusual. Sentencing standards for offences against the law of Western Australia are determined by reference to the decisions of this court and its predecessor. See The State of Western Australia v Zhuang.[34]
3. The remarks of Mazza JA, Beech JA and I in the first sentence in [78] of Taylor that 'if the appellant had penetrated the complainant's vagina with his penis rather than his finger, and the other objective facts and circumstances were unaltered, the penile penetration would not merely have been "marginally more serious" than the digital penetration' conveyed that, having regard to the observations of Wheeler JA in C and the comments of Steytler P in Akizuki, and contrary to the view of the sentencing judge in Taylor, the objective seriousness of the appellant's offending in Taylor did not warrant the imposition of a sentence only marginally less than the sentences customarily imposed, as a matter of fact, for offences against s 325(1) which involve penile penetration (compared to the sentences customarily imposed, as a matter of fact, for offences against s 325(1) which involve digital penetration).
4. Those remarks did not, as submitted by counsel for the State in the present case, constitute a finding by the court that there was 'a hierarchy of sexual penetration'.
5. The remarks of Mazza JA, Beech JA and I in the second sentence in [78] of Taylor that '[t]he penile penetration would likely have been perceived by the complainant as a materially greater affront to her personal dignity and bodily integrity than the digital penetration' reflected the observations of Wheeler JA in C [32] ‑ [33] (which have been referred to with approval in many subsequent cases in this court) to the effect that 'penile penetration will ..., often, be perceived by the victim as a more serious affront to personal dignity and bodily integrity' than, relevantly, digital penetration, although there can be very serious cases of offending against s 325(1) which do not involve penile penetration and '[s]ome cases of digital penetration can be extremely forceful and very serious in their consequences'.
6. Those general observations by her Honour in C did not relate to a particular complainant and reflected her Honour's view as to what will often be the subjective perception of a complainant. Her Honour's view was based upon her accumulated experience as a senior judge with very significant experience in the criminal jurisdiction as a trial and a sentencing judge and as a judge of appeal. Her Honour's view did not, as submitted by counsel for the State in the present case, require an 'evidentiary foundation' from an expert witness.
7. Plainly, Wheeler JA's view will be displaced by the actual feelings and trauma experienced by a complainant in a particular case where those matters are known to the court. A complainant's actual feelings and trauma are highly relevant in the sentencing process in all cases of offending against s 325(1) and, where known, should be put before the sentencing judge.
8. So, for example, in Turaga Wheeler JA said that, generally, 'the Courts would regard counts of oral penetration or digital penetration as being of lesser severity than other types of sexual penetration' [16]. However, her Honour recognised that the seriousness of any type of sexual penetration without consent depends upon the particular facts and circumstances of the case. Her Honour noted that, in Turaga, the complainant had said that she 'felt disgusted' by the count involving cunnilingus because that act 'degraded [her] the most'. Wheeler JA concluded that, given it was plainly the respondent's purpose in Turaga to degrade and humiliate the complainant, and given that the respondent and the complainant had been in a long relationship, the respondent would be expected to know how the complainant would react to an act of cunnilingus [16]. Her Honour was of the view that those circumstances elevated the seriousness of the count of cunnilingus 'very considerably' [16].
9. In Taylor, unlike the present case, there was no victim impact statement from the complainant. The actual feelings and trauma experienced by the complainant in Taylor were unknown beyond the mutual friend having noticed that the complainant was crying and upset as she left the house and walked to her car. See [134] above. However, the sentencing judge in Taylor correctly inferred, based on the experience of the courts, that the complainant would clearly have been horrified by the appellant's conduct and that the ongoing impact of this kind of offence on complainants is well recognised by the courts.
10. The remarks of Mazza JA, Beech JA and I in the third and fourth sentences in [78] of Taylor that:

(a) '[i]n the circumstances, the digital penetration which actually occurred was materially less serious than penile penetration would have been'; and

(b) '[i]t was not merely "marginally less serious''',

conveyed that, having regard to the observations of Wheeler JA in C and the comments of Steytler P in Akizuki, and contrary to the view of the sentencing judge in Taylor, the objective seriousness of the appellant's offending in Taylor warranted the imposition of a sentence that was materially less than the sentences customarily imposed, as a matter of fact, for offences against s 325(1) which involve penile penetration (compared to the sentences customarily imposed, as a matter of fact, for offences against s 325(1) which involve digital penetration).

1. Those remarks were consistent with the finding by this court in Taylor that ground 1 of the appeal had been made out; that is, the finding that the sentence of 3 years' immediate imprisonment imposed by the sentencing judge was manifestly excessive.
2. As I have mentioned:

(a) at the hearing of the appeal in Taylor, counsel for the State conceded that, having regard to the objective facts and circumstances of the offending, it was difficult to sustain the sentencing judge's characterisation of the appellant's offending as 'only marginally' less serious than penile penetration; and

(b) this court allowed the appeal in Taylor on the basis of ground 1 and ground 2(b) and resentenced the appellant to 2 years' immediate imprisonment.

1. In the present case, the sentencing judge characterised the appellant's offending in relation to count 2 as being 'no less serious by the fact that it was a digital penetration than it would have been had it been a penile penetration'.
2. As I have mentioned, the sentencing judge in the present case was also the sentencing judge in Taylor.
3. In my opinion, the statement by the sentencing judge in the present case that the appellant's offending in relation to count 2 was 'no less serious by the fact that it was a digital penetration than it would have been had it been a penile penetration' indicated that, in her Honour's view, the sentence that should be imposed on the appellant for count 2 involving digital penetration should not be materially less than the sentence that would have been imposed if the count had involved penile penetration.
4. I am satisfied, having regard to the facts and circumstances of the appellant's offending, that her Honour's view was not erroneous.
5. As I will explain in dealing with ground 2, the appellant's offending in relation to count 2 was very serious. His offending was aggravated by a number of factors. The complainant was highly vulnerable. It is apparent, from her victim impact statement, that the complainant has suffered significant ongoing emotional and psychological trauma as a result of the offending. The appellant's criminal conduct has had a serious continuing impact upon the complainant and her life. Also, as I will explain in dealing with ground 2, the offending and the personal circumstances of the appellant in the present case are readily distinguishable from the offending and the personal circumstances of the offender in Taylor. The facts and circumstances of the offending in Taylor were materially less serious than the facts and circumstances of the appellant's offending. Further, the personal circumstances of the offender in Taylor were more favourable than the personal circumstances of the appellant.
6. Ground 1 fails.

1. Counsel for the appellant submitted that the offending of the appellant bore a number of similarities to the facts of Powell, Miles and Taylor. Counsel acknowledged that there were some distinguishing features, including that 'the complainant [in the present case] had rebuffed [the appellant's] advances earlier in the evening', but, according to counsel, that difference did not justify the length of the appellant's sentence compared to the length of the sentences imposed in Powell, Miles and Taylor.
2. It was submitted that the appellant's personal circumstances were 'clearly mitigating'. Counsel referred to the appellant's mental health issues and the sexual abuse he suffered as a teenager. Those circumstances were alleged to be 'highly mitigating'. Counsel also referred to the appellant's youth.
3. Counsel contended that the sentence of 3 years 6 months' immediate imprisonment for count 2 'bears no correlation with the type of sentences that have previously been imposed for the digital penetration of a person without their consent' (original emphasis). The sentence imposed on the appellant for count 2, having regard to all relevant facts and circumstances and all relevant sentencing factors, was unreasonable or plainly unjust.

1. Counsel for the State submitted that the facts of the appellant's offending on count 2 were serious.
2. It was submitted that the appellant's offending was more serious than the offending in Powell, Miles, Vartolo and Taylor.
3. Counsel contended that having regard to:

(a) the absence of the mitigation that a plea of guilty would have brought;

(b) the premeditation involved in the appellant's offending;

(c) the appellant's breach of the complainant's trust; and

(d) the appellant's continuing stance of denial, his refusal to accept responsibility for his actions and his lack of remorse and victim empathy,

the sentence of 3 years 6 months' immediate imprisonment was not unreasonable or plainly unjust.

1. A ground of appeal which alleges that a sentence is manifestly excessive asserts the existence of implied error. It is necessary, in determining whether a sentence is manifestly excessive, to examine it from the perspective of the maximum sentence prescribed by law for the relevant offence, the standards of sentencing customarily observed with respect to that offence, the place which the criminal conduct occupies on the scale of seriousness of offences of the kind in question, and the personal circumstances of the offender.
2. The guidance afforded by comparable cases is flexible rather than rigid. The mere fact that a sentence is within the range of other sentences imposed for similar offending does not necessarily establish that there was an appropriate exercise of the sentencing discretion in the particular case. Similarly, the mere fact that a sentence is outside the range does not necessarily establish that the exercise of the sentencing discretion in the particular case miscarried.
3. A sentencing range for comparable offences is merely one of the factors to be taken into account in deciding whether an individual sentence is manifestly excessive or a total effective sentence infringes the first limb of the totality principle. A range of sentences customarily imposed is of significance for the purpose of ensuring broad consistency in the sentencing of offenders in broadly comparable cases. However, a sentencing range for comparable cases does not fix the range of a sound exercise of the sentencing discretion in a particular case.
4. When this court dismisses an appeal against sentence, and when it allows an appeal against sentence and resentences the offender, this court's decision on the sentencing outcome does not, of itself, fix the upper or lower limit of the range.
5. Except where a mandatory sentence is prescribed, a sentencing judge exercises a discretionary judgment which is subject to applicable statutory provisions and judge-made law. See Barbaro v The Queen.[35]
6. In the present case, the sentencing judge was obliged to sentence the appellant in accordance with the sentencing principles set out in pt 2 div 1 of the Sentencing Act.
7. The discretion conferred on sentencing judges is, of course, of fundamental importance and this court may not substitute its opinion as to sentencing for that of the sentencing judge merely because it would have exercised the discretion in a different manner. See Lowndes v The Queen.[36]
8. The maximum penalty for sexually penetrating another person, without the consent of that person, contrary to s 325(1) of the Code, is 14 years' imprisonment.
9. In the present case, the very serious features of the appellant's offending in relation to count 2, and the nature and the extent of the complainant's vulnerability, are apparent from my summary of the facts and circumstances of the offending and the trial judge's sentencing remarks.
10. The appellant's offending was aggravated by the following factors. The appellant did not simply digitally penetrate the complainant's vagina without her consent. The appellant sexually penetrated the complainant despite the complainant having made plain to the appellant that she was not interested in him. Later, when the appellant was getting into her bed the complainant reiterated to the appellant, forcefully and unequivocally, that she did not want any physical contact with him. The appellant ignored the complainant's wishes and, despite her having in substance expressly refused consent, sexually penetrated her while she was sleeping. The appellant's offending was persistent and involved some premeditation. He breached the trust which the complainant had shown by permitting him to sleep separately from her but in her room.
11. The appellant has significant treatment needs in relation to his mental health issues. The appellant's risk of reoffending will be elevated while those issues have not been addressed. As Mr Cicchini said in his report, there was no evidence, apart from alcohol abuse, that the appellant's psychological vulnerabilities contributed significantly to his offending.
12. The complainant was highly vulnerable. She was a foreign national who had recently arrived in Western Australia and had limited English skills. The complainant was employed by the appellant's parents. The tavern was in a reasonably remote part of rural Western Australia. It was necessary that the complainant reside in the building next to the tavern.
13. It is apparent from her victim impact statement that the complainant has suffered significant ongoing emotional and psychological trauma as a result of the offending. The appellant's criminal conduct has had a serious continuing impact upon the complainant and her life.
14. It was necessary for her Honour to impose a sentence on count 2 that would deter the appellant from committing an offence of this kind in the future. Personal deterrence and the protection of vulnerable women were of particular importance having regard to the very serious features of the appellant's offending, his continuing stance of denial (including his insinuation that the complainant was motivated in her account of the offending by the prospect of financial gain or compensation), his failure adequately to understand appropriate conduct towards women (including regarding issues of consent) and his failure to evince any remorse or victim empathy.
15. As I have mentioned, the appellant was aged 23 at the time of the offending and was 25 when sentenced. There was some mitigation in his having been relatively youthful when he committed the offence. Also, there was mitigation in the trauma the appellant had experienced in his childhood. Further, there was mitigation arising from the limited admissions the appellant made at the trial which facilitated, to a very limited extent, the conduct of the trial.
16. Although the trial judge found that the appellant was not of prior good character, having regard to his previous convictions, the authors of a number of written references spoke well of the appellant.
17. The appellant did not have the mitigation that a plea of guilty would have brought.
18. The offending and the personal circumstances of the appellant in the present case are readily distinguishable from the offending and the personal circumstances of the offender in Taylor.
19. For example, the offender in Taylor:

(a) entered a plea of guilty for which he was given a 15% discount under s 9AA of the Sentencing Act;

(b) did not have a 'relevant prior criminal record';

(c) had an honest (although wholly unreasonable) belief that the complainant was consenting;

(d) had an intellectual impairment that reduced his moral culpability (although that impairment weighed both positively and negatively in the balance); and

(e) had significant and ongoing health issues and, by virtue of his age (61 at the time of sentencing) and his medical condition, prison would be more difficult for him than for someone who was younger and in good health.

1. By contrast, the appellant, in the present case:

(b) was not of prior good character and his prior criminal record demonstrated a persistent disregard for the law;

(c) did not have an honest belief that the complainant was consenting;

(d) maintained his stance of denial after he was convicted, did not evince any remorse or victim empathy and did not accept responsibility for his criminal conduct;

(f) prison would not be more difficult for him by virtue of any health issues or his age.

1. The appellant in the present case did, however, have some mitigation by virtue of his relative youth. Also, there was mitigation in the appellant's psychological vulnerabilities as a result of the bullying and sexual abuse he had suffered as a child. However, her Honour found that there was no evidence that the appellant's psychological vulnerabilities contributed to his offending. Her Honour took into account that the appellant had significant treatment needs for his substance abuse, but noted that his risk of offending would remain elevated until those treatment needs were addressed.
2. The offending of the appellant in Taylor was not aggravated by factors of the kind set out at [205] above which aggravated the offending of the appellant in the present case.
3. The victim impact statement of the complainant in the present case showed the significant emotional and psychological trauma suffered by the complainant and the serious continuing impact of the appellant's criminal conduct upon her and her life. However, there was no victim impact statement from the complainant in Taylor and it was necessary for the sentencing judge in that case to infer (appropriately and based on the experience of the courts in dealing with offending of this character) the seriousness of the ongoing impact that the offending would have had upon the complainant.
4. The facts and circumstances of the offending in Taylor were less serious than the facts and circumstances of the offending in the present case. Also, the personal circumstances of the offender in Taylor were more favourable than the personal circumstances of the appellant in the present case.
5. I have had regard to the sentencing dispositions in a range of cases, including the cases I have cited, in dealing with ground 1, in relation to the standards of sentencing customarily observed with respect to offending against s 325(1) of the Code.
6. In my opinion, after taking into account:

(d) the sentencing dispositions in previous cases with at least some features comparable to the appellant's offending;

(e) the place which the appellant's criminal conduct occupies on the scale of seriousness of offending of this kind;

(f) the aggravating factors in relation to the appellant's offending;

(g) the appellant's personal circumstances and antecedents;

(h) the mitigating factors referred to by her Honour; and

the sentence of 3 years 6 months' immediate imprisonment was commensurate with the seriousness of the offence. The length of the sentence was not unreasonable or plainly unjust.

The State's application in an appeal for leave to adduce additional evidence in the appeal

1. The reasons given by Pritchard JA for dismissing the State's application in an appeal for leave to adduce additional evidence in the appeal reflect my reasons for joining in the order made at the hearing of the appeal to dismiss the application.

1. The appeal is unmeritorious. In the circumstances, it would be pointless to grant the appellant an extension of time within which to appeal. The application for an extension of time to appeal should be dismissed. Leave to appeal should be refused. The appeal must be dismissed.

1. On 25 October 2019, the appellant was sentenced, following his conviction after trial, to a term of immediate imprisonment of 3 years and 6 months, for one count of indecent assault, contrary to s 323 of the Criminal Code (count 1), and one count of sexual penetration without consent, contrary to s 325 of the Criminal Code (count 2). The sentence imposed for count 2 was a term of immediate imprisonment of 3 years and 6 months, and the appellant was sentenced to a term of immediate imprisonment of 6 months, to be served concurrently, in respect of count 1. The sentence was backdated to commence on 8 August 2019, and the appellant was made eligible for parole.
2. The appellant now appeals against the sentence imposed on two grounds. In summary, he contends that the learned sentencing judge erred in her characterisation of the seriousness of count 2, and that the sentence imposed for that offence was manifestly excessive. The appellant requires leave to appeal. His application for leave to appeal

was referred to the hearing of the appeal.[37] The appellant also requires an extension of time within which to appeal, having commenced his appeal over six months out of time. His application for an extension of time was also referred to the hearing of the appeal.[38]

1. The respondent sought leave to adduce additional evidence in the appeal, namely a report dated 4 August 2020 prepared by Dr Maire Kelly, the Head of Department, Clinical Forensic Medicine, at the Sexual Assault Resource Centre (SARC). That application was referred to the hearing of the appeal.[39] In the course of the hearing of the appeal, the Court dismissed that application, and indicated that it would publish its reasons in due course.[40]
2. For the reasons which follow, I would refuse the extension of time within which to appeal, refuse leave to appeal, and dismiss the appeal. I also set out my reasons for joining in the decision of the Court to dismiss the respondent's application to adduce additional evidence in the appeal.

1. The trial judge's findings in relation to the circumstances of the appellant's offending were not challenged. Those findings were as follows.
2. The victim of the offences in this case was a young female backpacker from Europe, Ms S, who had arrived in Perth on 18 December 2017. She travelled to a town in rural Western Australia on 29 December 2017 where she found employment at a tavern, which was owned by the appellant's parents. The conditions of her employment included accommodation in the hotel accommodation attached to the tavern.[41]
3. Ms S commenced work at the tavern, and on New Year's Eve, after completing her shift, she joined patrons, and the appellant's family, to celebrate the New Year. During the celebrations she drank four ciders and two cups of champagne. In the course of the evening, Ms S sat at a table with the appellant, his mother and others, but there was no one‑on‑one conversation, and no flirtatious behaviour, between Ms S and the appellant. Ms S did not know the appellant's name.[42]
4. At about 4am on the morning of 1 January 2018, Ms S retired to her room and went to bed. The room had a single bed and a double bed in it, and the room was attached to a laundry.[43]
5. During the early hours of the morning, the appellant went to Ms S's room without invitation. He knocked persistently on the door until she answered. He said something to her which she did not understand and he asked her for a hug, which she refused. He insisted, and asked why she was not interested in him. Ms S told the appellant that she was not interested in him, and that she wanted to sleep on her own. He then asked whether he could sleep in her bed, and she said he could not. However, Ms S could see that the appellant was drunk and would be unable to drive, so Ms S told the appellant that if he wanted to stay in the room he could sleep in the other bed. Ms S did not consider herself to be in any danger because the appellant had told her that he was the son of her employer. The appellant agreed to sleep in the single bed in the room, and Ms S slept in the double bed.[44]
6. Some time later, in the early hours of the morning, Ms S was falling asleep when she felt the appellant get into the double bed. She screamed at him that she had told him no, and that he should leave her alone as she wanted to sleep. She immediately got out of the double bed, and got into the single bed. Some time later she went to use the bathroom, and when she returned, the appellant offered the double bed back to her, which she accepted. The appellant then moved back into the single bed.[45]
7. Ms S fell asleep in the double bed. She later awoke to find the appellant in bed with her. He was fondling her breasts, under her top. (That conduct was the subject of count 1.) Further, Ms S's pants and underwear had been pulled down to her mid-thigh area while she slept, and the appellant had inserted his fingers into her vagina. (That conduct was the subject of count 2.) Ms S was shocked. She yelled at the appellant and tried to push him away using her knees. She immediately got out of bed, and left the room crying.[46]
8. The appellant approached her outside the room and asked her not to tell his parents about what had occurred. He then walked away.[47] Ms S then returned to the room, locked the door, and showered, because she felt dirty. She packed her belongings and wrote a note which she left in the laundry.[48] As Ms S was preparing to leave, the appellant returned. He was crying and said he felt like the devil.[49]
9. Ms S then left and hitchhiked to the nearest large urban centre. When she arrived there, she telephoned her mother in Europe in a distressed state and told her what had occurred. Ms S reported the matter to the police later the same evening.[50]

1. Ms S prepared a victim impact statement. In it, she recounted the physical and psychological toll that the offending had taken on her life. She feels dirty and ashamed; has changed the way she dresses so as to hide her body and her femininity; feels as though she has lost control over her body; has had difficulty working in jobs that require her to interact with people as she is on edge and feels scared, and has been unable to work as a result; suffered a depressed mood, especially in the first three months after the offending, and became hypersensitive and scared to leave her home; is constantly on alert and is suspicious of men; feels uncomfortable in the company of men, and has difficulty with any type of physical contact with them; has considerable difficulty with sleep, suffers from nightmares, and does not feel safe in her room; wears jeans rather than pyjamas in bed for fear that she will be attacked in her sleep again; is constantly reminded of the offences, especially during menstruation, because the offending occurred when she was menstruating; and gained weight from compulsive eating and then lost a significant amount of weight due to the stress of the trial, which she found to be an extremely difficult and traumatising experience.

1. At the time of the commission of the offences the appellant was 23 years old. He was 25 years old when sentenced.
2. The appellant is the youngest of three children. As I have already noted, his parents, who remain together, operated the tavern. The appellant grew up in the area where the offence occurred.[51] The appellant's childhood was free from substance abuse and violence, but his father was reported to be a strict disciplinarian with high expectations of his son. One of the appellant's siblings suffered mental health issues in her childhood and the appellant felt neglected because much attention was focused on his sister at that time.[52]
3. When he was 14 years of age, the appellant was sexually abused by two ministers of religion.[53]
4. The appellant commenced using cannabis when he was a teenager, and later moved on to using other drugs, in addition to alcohol. By 14 or 15 years of age he commenced using methamphetamine and severe drug dependence ensued.[54]
5. The appellant left school when he was 14 years of age. He had been the victim of bullying because of his weight. He often retaliated, and was excluded from attending school.[55] After leaving school, the appellant attended TAFE for a pre-apprenticeship course. It appears he did not complete that course. While he was still 14 years of age he commenced work at a fast food outlet for about six months. The appellant subsequently worked in numerous jobs, the longest duration of which was about 12 months. His employment in these positions was largely terminated due to alcohol and drug misuse. At around the date of sentencing, the appellant had been unemployed for two years.[56]
6. The appellant has had short term relationships but has not established any long term relationships in his life.
7. The appellant enjoys good physical health, but has a history of hospital admissions for drug induced psychosis. He has unresolved trauma issues stemming from his sexual abuse as a teenager,[57] and has also suffered from anxiety, together with depression and suicidal ideation.[58]
8. The author of a pre-sentence report concluded that the appellant had little understanding of appropriate conduct towards women, and in relation to consent to sexual conduct, and reported that the appellant was an isolated individual who lacked self-esteem and engaged in substance abuse.[59] A psychologist who reviewed the appellant noted that while the appellant had expressed some paranoid ideation, that did not impact his overall functioning.[60]
9. The appellant had prior convictions, as an adult, including for disorderly behaviour, obstructing a public officer, and for traffic offences. As a juvenile, the appellant had convictions for aggravated burglary, stealing, and stealing a motor vehicle.[61]

1. The learned sentencing judge noted the maximum penalty of 5 years' imprisonment, and 14 years' imprisonment, for counts 1 and 2 respectively. The learned sentencing judge took into account the circumstances of the offending, and the appellant's personal circumstances, as outlined above. Her Honour also took into account the impact of the appellant's offending on Ms S, as outlined in her victim impact statement.[62]
2. The learned sentencing judge found that there was no evidence that the appellant's psychological vulnerabilities had contributed to the offending.[63] The learned sentencing judge nevertheless took those psychological issues into account, together with the appellant's significant treatment needs in respect of those issues.[64]
3. The learned sentencing judge noted that the appellant relied on three references. One was provided by the appellant's father. To the extent that his view of his son's character reflected the fact that the appellant's father did not accept the jury's verdict, her Honour did not take that part of the reference into account. However, she did take into account the history the appellant's father was able to provide as to the bullying the appellant experienced as a child.[65] Another reference was provided by the appellant's doctor. It was given little weight because there was no indication that the doctor was aware of the nature of the appellant's offending.[66]
4. The learned sentencing judge considered the mitigating factors in the appellant's case. Her Honour noted that the appellant was still entitled to some benefit on the basis of youth, given that he was a young man of 23 years of age at the time of offending.[67] The learned sentencing judge noted that the appellant denied the offences. Her Honour found that he exhibited no empathy for Ms S and displayed no remorse for his offending behaviour.[68] The learned sentencing judge viewed the appellant's prior convictions as demonstrative of a persistent disregard for the law.[69] Because of those convictions, the appellant was not entitled to the benefit of prior good character in mitigation for his offending. Furthermore, as the appellant had been convicted after trial, he did not derive any benefit from a plea of guilty.[70] Her Honour took into account that the appellant made some very limited admissions as to the issue of identity, which facilitated, to a very minor degree, the conduct of the trial.[71] Nevertheless, Ms S was cross examined extensively in the course of the trial, which was a very traumatic experience for her.
5. The learned sentencing judge identified three circumstances of aggravation. First, she found that the appellant's conduct was persistent, in that Ms S repeatedly told the appellant that she was not interested in him in a sexual manner, and repeatedly told him 'no' when he tried to approach her.[72] Secondly, the learned sentencing judge found that the appellant waited until Ms S was asleep before sexually offending against her, when she was vulnerable and defenceless.[73] While there was an absence of force or intimidation in those circumstances, that was counterbalanced to a significant extent by the serious abuse of Ms S's vulnerability. As her Honour noted, the seriousness of sexually assaulting a sleeping or unconscious complainant was reflected in the fact that a sentence of immediate imprisonment was ordinarily imposed in cases of that kind.[74] Thirdly, her Honour found that there was a degree of power imbalance between the appellant and Ms S, because Ms S was a foreigner who was new to Australia, who had limited English skills, whereas the appellant was the son of her employers.[75]
6. The learned sentencing judge then turned to assess the seriousness of the offending. It is convenient to quote this part of her Honour's remarks so that they may be viewed in their entirety:

[I]t was pointed out ... by Wheeler J in C v The State of Western Australia that there's no hierarchy for sexual penetrations. For example, although digital penetration will ordinarily be less serious than penile penetration that is not inevitably so. It might in particular circumstances be no less serious or even more serious.

The seriousness of every offence of unlawful sexual penetration must be determined by its own individual circumstances. And I find in this case that the sexual penetration is no less serious by the fact that it was a digital penetration than it would have been had it been a penile penetration.

Now, general deterrence is an important sentencing consideration in cases of this type. The court must place weight on the need to impose a sentence that's capable of making it clear to others in the community, particularly young men, that it's completely unacceptable to engage in sexual activity with a woman in circumstances such as these where the woman has said "No", where she's asleep and therefore ... incapable of consenting or resisting... .

It's recently been reaffirmed by the Court of Appeal in NPA v The State of Western Australia ... that in a case of a single count of penile penetration of the vagina where there is a plea of not guilty a term of imprisonment of five to six years would not be unusual.

Now, the court emphasised that that doesn't mean that a sentence outside that range is thereby manifestly excessive or inadequate. The circumstances of offending vary widely and the available maximum sentence must not be overlooked. ... I take into account in this case that [the offending] was of short duration and you desisted when [Ms S] forcibly pushed you away with her knees and told you to stop.

Now, I need to impose a sentence that is commensurate with the seriousness and the circumstances of the offending, which I have dealt with. I need to take into account the aggravating factors and the mitigating factors and the vulnerability of the victim, who in this case was of course a sleeping woman.[76] (emphasis added)

1. Having taken all of the aggravating and mitigating factors into account, her Honour concluded that a sentence of immediate imprisonment was warranted, and imposed the terms of imprisonment set out above.
2. To a large extent, the success of the appeal depended upon the appellant demonstrating an error by the learned judge in the underlined sentence in the passage of her Honour's reasons quoted above. I will return to that issue later in these reasons.

The application for an extension of time within which to appeal

1. The appellant filed his application for leave to appeal on 4 June 2020. The 21 day period in which he was required to file the application for leave to appeal expired on 15 November 2019.[77] The application for leave to appeal was thus filed over six months out of time.
2. The Court has a discretion to extend the time within which the application for leave to appeal is filed.[78]
3. In the case of a lengthy delay in filing an application for leave to appeal, exceptional circumstances are required to be established before an extension of time will be granted, unless a substantial miscarriage of justice will arise if the extension is not granted.[79]
4. The facts set out in the appellant's affidavit in support of his application for an extension of time suggest that the delay was due to his inability to afford legal representation for the appeal, and delays in obtaining a grant of legal aid. There was also some delay while counsel provided advice on the prospects of an appeal, and while he prepared the appellant's Case so the appeal could be filed. Those circumstances were not exceptional.
5. Moreover, this is not a case in which a miscarriage of justice will arise if an extension is not granted, having regard to the conclusion I have reached as to the merits of the appeal.
6. I would therefore dismiss the application for an extension of time within which to appeal.

Respondent's application to adduce additional evidence in the appeal

1. The respondent sought leave to adduce Dr Kelly's report. Dr Kelly was asked to draw on her experience as a senior medical officer, and most recently as the Head of Department at the SARC to address the question whether a non-consensual digital-vaginal penetration is less serious than a non-consensual penile-vaginal penetration.
2. Dr Kelly compared the risks associated with non-consensual penile-vaginal penetration and non-consensual digital-vaginal penetration, in female victims older than 13 years of age. Other than for the risk of pregnancy (which obviously does not apply to digital-vaginal penetration) and the risk of contracting a sexually transmitted infection (STI) (which she noted is highly unlikely in relation to digital-vaginal penetration), Dr Kelly noted that the same risks existed in relation to both types of penetration. Depending on the circumstances, in either kind of non-consensual sexual penetration, there may be, but will not always be, a risk that the victim will experience pain; there may be, but will not always be, a risk of damage to the victim's genitals, or of general physical injury; the dignity of the victim will be affronted; and the victim may feel degraded and humiliated.[80] Accordingly, it was Dr Kelly's view that other than the risk of pregnancy and the risk of contraction of an STI, there was little to no support in the evidence she had seen over the course of her 15 years of clinical experience to support a general assumption that there is a difference in harm resulting from non-consensual digital-vaginal or non-consensual penile-vaginal penetration.[81]
3. Counsel for the respondent submitted that leave should be given to the respondent to adduce the report of Dr Kelly in order to answer the appellant's contention that the learned sentencing judge erred in concluding that the offending in this case was no less serious by the fact that it was a digital, rather than penile, penetration. The respondent sought to rely on Dr Kelly's report to answer the appellant's submission that the judge's statement (underlined at [253] above) was erroneous because 'had the appellant penetrated the complainant's vagina with his penis, the impact that such an act would have had on the complainant would have been objectively more serious than if it were a digital pe[82]tration'.82
4. Counsel for the respondent submitted that the evidence of Dr Kelly established that for medical purposes, there was no significant distinction between the risks of penile-vaginal penetration and digital-vaginal penetration (if the risk of pregnancy and contraction of an STI were excluded); that both penile and digital penetration carry with them a risk of pain and physical injury in adults, and that that risk is not sufficiently different, based on the type of penetration; and there is no foundation for an assertion that penile penetration carries with it a greater personal affront to dignity or bodily integrity than digital penetration.[83]
5. Counsel for the respondent sought to rely on Dr Kelly's report to support her submission that there was 'no basis, either in medicine or as a matter of law, for the type of penetration itself to be a relevant factor'[84] in sentencing.
6. Counsel for the respondent submitted that Dr Kelly's report could not have been led at the trial or sentencing of the appellant, because the evidence only became relevant:

as a result of the proposition put by the appellant on the appeal, which relies not on evidence but on previous authority of the Court of Appeal ... . Unless the respondent can challenge the factual foundation underlying the authority in the Court of Appeal, it will be unable to do so at first instance.[85]

1. The appellant opposed the admission of Dr Kelly's report.

1. An appeal court must decide an appeal on the evidence and material that were before the lower court.[86] However, that does not affect the power of an appeal court to admit evidence in the exercise of its power to do so.[87] This Court has a discretion to admit 'any other evidence' for the purposes of dealing with an appeal.[88] That power is not subject to any express limitation.[89]
2. The evidence the respondent seeks to admit in this case is new evidence, that is, evidence which was available at the time of the trial or sentencing, or which could, with reasonable diligence, have been discovered.[90]
3. In those cases where the admission of new evidence is sought in the course of an appeal against conviction, the new evidence will be admitted only if that evidence demonstrates that there will be a miscarriage of justice because the accused is innocent or should not have been convicted.[91] In an appeal against sentence:

a miscarriage of justice may arise from the absence of material evidence before the primary court. However, it is clear that such a miscarriage will not arise in all cases, and that the identification of a miscarriage must be undertaken, consistently with the nature of an appeal, in a manner which does not 'have the practical effect of obliterating the distinction between original and appellate jurisdiction'.[92]

1. While the Court has a wide discretion to admit evidence, I was of the view that leave to admit Dr Kelly's report should be refused, for three reasons. First, leave to admit the report was not sought in order to avoid a miscarriage of justice, but to answer a contention advanced by the appellant in the appeal. The admission of Dr Kelly's report for that purpose would not sit comfortably with the appellate jurisdiction exercised by this Court.
2. Secondly, the matters set out in Dr Kelly's report are matters which can be taken to fall within the knowledge of sentencing judges and appellate judges, as a result of their experience in the criminal justice system. Sentencing judges and appellate judges can be taken to know that there is no inherent difference between the risks or harms which may be caused to victims by non-consensual penile-vaginal penetration on the one hand, and digital-vaginal penetration on the other hand, if the risk of pregnancy and the contraction of STIs is excluded. Judges can be taken to know that both non-consensual penile and digital penetration carry with them a risk of causing pain and physical injury in adults, the extent of which will depend on the circumstances of the commission of the offence. Similarly, judges can be taken to know that non-consensual sexual penetration of any kind is an affront to the privacy and dignity of the individual victim, but that the extent of any psychological harm in any particular case will vary, depending on all of the circumstances and on the victim's experience of the offence. In that sense, therefore, the admission of Dr Kelly's report was not necessary to inform the Court of matters outside its knowledge.
3. Thirdly, in this case, Ms S provided a victim impact statement which was before the sentencing judge, and which is now before this Court. That document sets out in detailed terms the actual impact of the appellant's offending on Ms S. The Court need look no further than that document to inform itself of the harm caused by the offending in this case.

1. The appellant relies on two grounds of appeal:
   1. The sentencing judge erred in characterising the appellant's offending in relation to count 2 as being 'no less serious by the fact that it was a digital penetration than it would have been had it been a penile penetration'; and
   2. The sentencing judge erred by imposing a sentence of 3 years' and 6 months' immediate imprisonment in relation to count 2, which was manifestly excessive.

1. The appellant submitted that the learned sentencing judge's characterisation of the offending as 'no less serious by the fact that it was a digital penetration than it would have been had it been a penile penetration' was erroneous. The appellant submitted that in this case, there was no basis to infer that the conduct of the appellant, by digitally penetrating Ms S's vagina, was as serious as a penile-vaginal penetration.[93] Counsel for the appellant submitted that the learned sentencing judge's error in characterising the offending had a material impact on the sentence imposed in that her Honour considered the range of sentences imposed for offending involving penile-vaginal penetration, and did not confine her attention to cases which, in his submission, could properly be described as comparable (namely those involving digital-vaginal penetration).
2. In support of this ground, counsel for the appellant relied on an observation made by the Court of Appeal in Taylor v The State of Western Australia,[94] namely that:

if the appellant had penetrated the complainant's vagina with his penis rather than his finger, and the other objective facts and circumstances were unaltered, that penile penetration would not have merely been 'marginally more serious' than the digital penetration. The penile penetration would likely have been perceived by the complainant as a materially greater affront to her personal dignity and bodily integrity than the digital penetration.[95] (emphasis added)

1. Counsel for the appellant submitted the learned sentencing judge's characterisation of count 2 was erroneous because, applying the same reasoning as in Taylor:

the fact remains that had the appellant penetrated the complainant's vagina with his penis, the impact that such an act would have had on the complainant would have been objectively more serious than if it were a digital penetration. This is so for the same reasons articulated in the above cited passage from Taylor.[96]

1. The appellant's submissions made clear that the material difference which he claimed to exist between the seriousness of a penile, as opposed to digital, penetration of a woman's vagina, was not due to the fact that penile penetration would have carried a risk and fear of pregnancy and the contraction of an STI. He acknowledged that those were aggravating factors for consideration over and above the nature of the penetration itself.[97] At the heart of ground 1, therefore, is the contention that a penile-vaginal sexual penetration without consent is inherently more serious criminal conduct, irrespective of any aggravating factors, than a digital-vaginal sexual penetration without consent.
2. Ground 1 is without merit, for the following reasons.
3. First, the appellant's contention finds no support in s 319 or s 325 of the Criminal Code. The criminality which is prohibited by the offence of sexual penetration without consent in s 325(1) of the Criminal Code is the exercise of dominion over another person by violating that person's bodily integrity - an integral aspect of their human dignity - by the penetration of a part of their body (or by the manipulation of a part of their body so as to penetrate a part of the offender's body) without their consent to that conduct. Conduct of that kind involves an abject disregard by the offender for the victim's dignity as a human being, and for their autonomy and bodily integrity. From that perspective, it is not surprising that s 325 of the Criminal Code does not draw a distinction between the kinds of penetration (defined in s 319(1)) which may constitute a contravention of the section.
4. The purpose behind the introduction, into the Criminal Code, of the category of sexual offences known as sexual penetration without consent was to equate conduct which had previously been treated as an indecent assault, with sexual intercourse. That much was made clear by the Minister, in her second reading speech on the introduction of the bill which amended the Criminal Code to include s 324F (the precursor to the definition of the phrase 'to sexually penetrate' in s 319(1)) in 1985.[98] In her second reading speech on the introduction of that legislation, the Minister said:[99]

A wider definition of "sexual penetration", modelled on New South Wales legislation, replaces the existing "carnal knowledge" definition for sexual assaults. 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. (emphasis added)

1. Nothing in the definition in s 319(1) or in s 325 of the Criminal Code suggests that any particular form of sexual penetration is, of itself, more serious than another. Consequently, a court should not commence its assessment of the seriousness of an offence of sexual penetration by making a judgment as to whether the sexual penetration in the case at hand is inherently more or less serious than any other form of sexual penetration. That is not to suggest, of course, that all offences of sexual penetration without consent will be equally serious. Rather, the seriousness of a particular offence will fall to be assessed by reference to all of the circumstances of the case, including the circumstances of the offender, any mitigating circumstances, and any aggravating circumstances (including, but not limited to, any risk of pregnancy or contraction of an STI, whether force was used, whether the victim suffered physical injury, any psychological effects suffered by the victim as disclosed in a victim impact statement, and so on).
2. Secondly, the appellant's contention is not supported by authority, properly understood. The starting point in that analysis is the decision of this Court in C v The State of Western Australia,[100] and the judgment of Wheeler JA in particular. Her Honour sought to reconcile, to the extent possible, the views expressed by the High Court in Ibbs v The Queen with the approach taken by the Parliament in s 324F of the Criminal Code. What her Honour said must be understood in its entire context:

[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. Further, that proposition appears to be supported by the observations of the High Court in Ibbs v The Queen.

[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 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. Their Honours observed:

'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 ... the Minister introducing the Bill said ...:

'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. (citations and page numbers omitted)

1. At [32] of her reasons in C, Wheeler JA was clearly speaking in very general terms, drawing on her experience in this Court, and providing examples of the sorts of factors present in previous cases which accounted for why penile-vaginal penetrations had sometimes been characterised as more serious offending than digital-vaginal penetrations. Her Honour did so in order to explain why it was that there were many cases in which the sentences imposed for penile-vaginal penetration were higher than those imposed for digital-vaginal penetration. However, Justice Wheeler was clearly not seeking to do anything more than provide examples of the sorts of circumstances that might explain that disparity in the sentences imposed in previous cases. Furthermore, her Honour was at pains to make clear that an assessment of the seriousness of an offence of sexual penetration was not dependent on whether the sexual penetration involved a penile or digital penetration, but rather depended on all of the circumstances in which the offence was committed, and of which her Honour gave examples. That there can be no doubt that that is the proper understanding of her Honour's observations in [32] is confirmed by her Honour's observations in [33] and her unequivocal comments in [35] in particular.
2. The observations made by Wheeler JA were endorsed by Steytler P in The State of Western Australia v Akizuki.[101] After having reviewed earlier sentencing decisions, his Honour said:

As might have been anticipated, this review of the cases reveals that the circumstances of sexual offending, and of sexual offenders, are almost infinitely variable. That, in turn, means that the sentence imposed in one case can provide only very limited guidance in deciding what sentence should be imposed for a similar offence in another case. However, some conclusions can be drawn, as follows:

(1) An average starting point for a case of penile penetration of the vagina without consent, absent circumstances of aggravation, is in the order of 7 years' imprisonment under the former sentencing regime, or around 4 years and 8 months' imprisonment under the transitional regime. That starting point takes no account of any factors in mitigation.

(2) Because the circumstances of sexual offending and sexual offenders are so variable, nothing will be achieved by specifying a range of sentences customarily imposed. The range of potential aggravating features is so huge that features of that kind can either dramatically increase the sentence imposed (bearing in mind that the maximum sentence for an aggravated offence is 20 years' imprisonment: s 326 of the Criminal Code) or have little or no effect on the sentence imposed. The range of potential mitigating factors is at least equally extensive. They might result in a very large reduction in sentence or little or no reduction.

(3) Nor will anything be achieved by specifying a different starting point for each category of sexual penetration without consent. It should not be assumed that one form of sexual penetration is necessarily more, or less, serious than another. As Wheeler JA pointed out in C v The State of Western Australia, there is no 'hierarchy of sexual penetration'. For example, although digital penetration will ordinarily be less serious than penile penetration, that is not inevitably so. It might, in particular circumstances, be no less serious or even more serious. The seriousness of every offence of unlawful sexual penetration must be determined by its own individual circumstances: C [35] (Wheeler JA); Cavill [266] - [267] (Miller JA).

That seems to me to be about as much guidance as can be obtained from the cases. I appreciate that it is less than sentencing judges might wish. However, that is a necessary consequence of the court's obligation to tailor each sentence to the individual circumstances of the case, having regard for the maximum penalty provided by the legislature and, to the extent that they can be of assistance, sentences customarily imposed in similar circumstances. (citations omitted)

1. The appellant's contention is contrary to what was said by Wheeler JA in C, which was endorsed in Akizuki.
2. As I have already noted, ground 1 relies on observations made by the Court in Taylor. In that case, which involved a digital-vaginal sexual penetration, one of the grounds of appeal was that the learned sentencing judge had characterised the offending as 'marginally less serious than a count of penile penetration but only marginally so'. The Court considered the observations made by Wheeler JA in C, and by Steytler P in Akizuki which are reproduced above. The Court then turned to consider the seriousness of the offending conduct in the case before it and said:

[74] An offender's digital penetration of a female's vagina, without consent, is undoubtedly serious. Digital penetration as an offence should not be underrated in its seriousness. See Cavill v The State of Western Australia. However, cases of digital penetration, as with other forms of sexual penetration, without consent, can vary significantly in the degree of their seriousness.

[75] In the present case, the seriousness of the appellant's offending is apparent from a number of circumstances. First, the complainant was highly vulnerable in that she was alone and asleep. She was unable, in those circumstances, to take any action to endeavour to avoid the commission of the offence. Secondly, the appellant entered the bedroom and got into bed with the complainant without any reasonable basis for any belief that the complainant might welcome his presence or might be interested in any form of sexual interaction with him. Thirdly, the complainant suffered significant emotional trauma as a result of the appellant's actions.

[76] Her Honour's characterisation of the appellant's offending did not involve the making of a finding of fact. Rather, her Honour was making a value judgment.

[77] At the hearing of the appeal, counsel for the State conceded (properly, in our opinion) that, having regard to the objective facts and circumstances of the offending, it was difficult to sustain the sentencing judge's characterisation of the appellant's offending as 'only marginally' less serious than penile penetration ....

[78] In our opinion, bearing in mind the observations of Wheeler JA in C and the comments of Steytler P in Akizuki, if the appellant had penetrated the complainant's vagina with his penis rather than his finger, and the other objective facts and circumstances were unaltered, the penile penetration would not merely have been 'marginally more serious' than the digital penetration. The penile penetration would likely have been perceived by the complainant as a materially greater affront to her personal dignity and bodily integrity than the digital penetration. In the circumstances, the digital penetration which actually occurred was materially less serious than penile penetration would have been. It was not merely 'marginally less serious'. (emphasis added)

1. The approach taken by the Court to the assessment of the seriousness of the sexual penetration, which is set out in the passage quoted above, is entirely consistent with what was said in C, and in Akizuki, with one exception, namely the sentence I have italicised. I must confess to some difficulty in understanding what the Court meant by that sentence. In my respectful view, it strikes a discordant note in a judgment which otherwise constitutes an entirely orthodox recitation and application of sentencing principles.
2. If read literally, the italicised sentence suggests that the Court rejected the sentencing judge's assessment of the seriousness of the digital sexual penetration in that case by hypothesising about whether the victim might have perceived a different kind of sexual penetration (a penile-vaginal penetration) as being more or less an affront to her dignity than the act of digital-vaginal penetration to which she was actually subjected. I very much doubt whether the italicised words can have been intended to be read that way.
3. To the extent, if at all, that the italicised sentence is to be understood as having its literal meaning, I am, with the very greatest of respect, unable to agree with either the analysis itself, or the Court's conclusion. From the perspective of principle, a hypothetical analysis of that kind is irrelevant to an assessment of the seriousness of an offence, as is required by s 6 of the Sentencing Act 1994 (WA), and consequently introduces a discourse which in my respectful view is unhelpful. As for the conclusion reached by the Court - as to the complainant's likely perception of a hypothetical act of sexual penetration, as compared with the actual penetration to which she was subjected - I am respectfully unable to agree with it. There is no information in the Court's reasons in Taylor as to the impact the offending had on the complainant in that case. It seems very unlikely that she would have expressed a view as to the effect a hypothetical, different sexual penetration would have had on her. Absent some information in a victim impact statement which could support the conclusion expressed by the Court in the italicised sentence, that conclusion would appear to have been made on the basis of speculation and supposition, and is, with respect, ill-informed.
4. Because the sentence in Taylor which I have italicised was the basis for the appellant's submissions in relation to ground 1, it is important to dispel any possible misunderstanding as to its import. When read in light of the earlier authorities, and in the context of the entirety of the Court's reasons in Taylor, the following is clear. Neither that sentence (nor the sentence which preceded it) should be understood to establish any point of principle capable of general application. The Court's observations at [78] in Taylor should not be understood to signal any change in approach in relation to the assessment of the seriousness of any offence of sexual penetration. Nor should those observations be understood to re-introduce a hierarchy of sexual penetration offences, in which a penile-vaginal sexual penetration is regarded as inherently more serious criminal conduct than a digital-vaginal sexual penetration, irrespective of any aggravating or mitigating factors. More particularly, the italicised sentence should not be understood as an indication that in the case of a digital-vaginal penetration, a sentencing judge should engage in some sort of hypothetical comparison between the psychological impact on a victim as a result of the offence which actually occurred, and the impact the victim might have experienced had she been subject to a penile-vaginal penetration. The harm - physical or psychological - to a victim will certainly be relevant in assessing the seriousness of an offence of sexual penetration. However, the evidence of that harm will lie in a victim impact statement prepared by the victim, and not in supposition or speculation by the Court.
5. There is a further reason why ground 1 must be dismissed. In my view, ground 1 proceeds from a misunderstanding of the observation by the learned sentencing judge which I have underlined in the quote in [253] above. Her Honour was, with those observations, commencing her assessment of the seriousness of the offence in count 2. She did so on the basis that the act of digital-vaginal penetration was criminal conduct which was equally as serious as a penile-vaginal penetration. By that observation, her Honour was simply conveying that that digital-vaginal penetration warranted the same starting point, in terms of sentence, as a penile-vaginal penetration, before the circumstances of the offending, including all aggravating and mitigating factors, were considered. As is apparent from the balance of the quoted passage at [253], after acknowledging that starting point, the learned sentencing judge then proceeded to consider the circumstances of aggravation and mitigation which existed in this case. Understood in that way, her Honour's approach to the sentencing of the appellant was not erroneous. Indeed, her Honour's observation was entirely consistent with the view expressed by Steytler P in Akizuki (at [286(3)] above) to the effect that nothing was to be achieved by specifying a different starting point for the various categories of sexual penetration without consent, because it should not be assumed that one form of sexual penetration was necessarily more or less serious than another.
6. As ground 1 is without merit, I would refuse leave to appeal on that ground.[102]

1. This ground of appeal is that the sentence of 3 years and 6 months' immediate imprisonment imposed for count 2 (the sexual penetration charge) was manifestly excessive. (No issue was taken with the sentence imposed in respect of count 1.)
2. Counsel for the appellant submitted that the sentence imposed in respect of count 2 bore 'no correlation with the type of sentences that have previously been imposed for the digital penetration of a person without their consent'.[103] He referred to Powell v The Queen, Mountain v The State of Western Australia,[104] Miles v The State of Western Australia,[105] Taylor v The State of Western Australia and Lakay v The State of Western Australia,[106] in support of his submission that the sentence imposed in the present case was manifestly excessive. He submitted that the offending in this case bore a number of similarities to that in Powell, Miles and Taylor, and that the differences were not so significant as to require so disparate a length of sentence as that which was imposed. By contrast, counsel for the appellant submitted that the offending in Lakay was materially more serious than the offending in the present case.[107]
3. Counsel for the appellant also submitted that the sentence was manifestly excessive having regard to the circumstances of this case, namely that the offending was of brief duration, occasioned without force (although he accepted that that was because Ms S was asleep) and ended shortly after Ms S awoke and pushed him away.[108] Counsel for the appellant also submitted that the appellant's mental health issues, and his sexual victimisation as a teenager were highly mitigating, and that he had the benefit of youth, which the offenders in Miles and Taylor did not enjoy.[109] Counsel for the appellant also submitted that 'although in some cases, the nature of a digital penetration may be such as to make it indistinguishable in seriousness to a penile penetration, there was nothing about this offending which could justify the characterisation of the offending on that basis'.[110]

1. The principles in relation to an appeal against sentence on the ground that the sentence was manifestly excessive have been set out in numerous cases[111] and are well established. They include:

(1) Sentencing is a discretionary exercise. An appellate court can intervene only if the appellant demonstrates either an express or implied material error. Express error involves acting on a wrong principle, for example by mistaking the law or facts or taking into account an irrelevant matter. Implied error arises where the end result is so unreasonable or unjust that the court must conclude that a substantial wrong has occurred. A ground of appeal which alleges that a sentence is manifestly excessive asserts an implied error.

(2) It is necessary, in determining whether a sentence is manifestly excessive, to examine it from the perspective of the maximum sentence prescribed by law for the relevant offence, the standards of sentencing customarily observed with respect to that offence, the place which the criminal conduct occupies on the scale of seriousness of offences of the kind in question, and the personal circumstances of the offender.

(3) The discretion conferred on sentencing judges is of fundamental importance and this court may not substitute its opinion as to sentencing for that of the sentencing judge merely because it would have exercised the discretion in a different manner. The appellant must demonstrate that the sentence imposed is unreasonable or plainly unjust.

(4) The guidance afforded by comparable cases is flexible rather than rigid. The mere fact that a sentence is within the range of other sentences imposed for similar offending does not necessarily establish that there was an appropriate exercise of the sentencing discretion in the particular case. Similarly, the mere fact that a sentence is outside the range does not necessarily establish that the exercise of the sentencing discretion in the particular case miscarried.

(5) A sentencing range for comparable offences is merely one of the factors to be taken into account in deciding whether an individual sentence is manifestly excessive. A range of sentences customarily imposed is of significance for the purpose of ensuring broad consistency in the sentencing of offenders in broadly comparable cases. However, a sentencing range for comparable cases does not fix the range of a sound exercise of the sentencing discretion in a particular case.

(6) When an appellate court dismisses an appeal against sentence, and when it allows an appeal against sentence and resentences the offender, the court's decision on the sentencing outcome does not, of itself, fix the upper or lower limit of the range.

1. The maximum penalty for an offence contrary to s 325 of the Criminal Code is 14 years' imprisonment. The sentence imposed, of 3 years and 6 months' immediate imprisonment, represented one quarter of the maximum penalty.
2. Turning next to the cases on which the appellant relied, I bear in mind the observation by Steytler P in Akizuki that because of the almost infinitely variable circumstances of sexual offending and sexual offenders, the guidance to be drawn from sentences imposed in particular cases is very limited. In my view, the cases on which the appellant relied do not support the conclusion that the sentence imposed in this case was manifestly excessive.
3. Powell v The Queen is an old authority, and needs to be approached with that in mind. The offender, who was 19 years of age at the time, was convicted after trial of one count of digital penetration of a 34 year old complainant. On the night of the offence, a number of people, including the offender, had been at the complainant's house. The offender and the complainant had been drinking alcohol. The complainant had also taken a sedative. She went to bed, and fell asleep. Her 8 year old son was in the same bed. At some stage in the early hours of the morning the offender got into bed with the complainant. She awoke to find him on top of her. He inserted two of his fingers into her vagina. The offending came to an end when the complainant's child awoke. The offender was convicted after trial.
4. The offence was characterised as serious, but not at the higher end of the scale of seriousness of sexual assaults. It was an isolated act of short duration. There was no abuse of trust involved, but the complainant was in a vulnerable state at the time of the offence and the offender took advantage of that. The complainant was said to have been left in a state of anxiety as she was not entirely certain what had happened to her. The offender had been employed, and was regarded as a valued employee, but he had a long standing substance abuse problem and an extensive criminal record. There was nothing to suggest that he had any remorse for his offending.
5. The Court concluded that the effective sentence of 5 years' imprisonment was manifestly excessive, set that sentence aside, and imposed a sentence of 3 years' immediate imprisonment. (That sentence equates to 2 years' imprisonment post-transitional.)
6. Although there are some similarities, in my view the present case involved more serious offending than that in Powell, having regard to the aggravating factors present in this case: the appellant's persistence, the additional vulnerability of Ms S, as a foreigner with limited English language skills, who had only recently arrived in Australia, and the imbalance of power between the appellant and Ms S.
7. In Mountain v The State of Western Australia, the 38 year old offender was convicted, after trial, of three counts of digital-vaginal penetration, one count of digital-anal penetration, and one count of attempted sexual penetration by an attempted act of fellatio. He was sentenced to a total term of 5 years and 4 months' imprisonment. On each of the counts of digital-vaginal and digital-anal penetration, he was sentenced to 2 years 8 months' imprisonment, and on the attempted fellatio count he was sentenced to 1 year and 4 months' imprisonment. Two of the sexual penetration sentences were ordered to be served cumulatively, and the remainder were to be served concurrently.
8. The offending occurred at a nightclub. The 19 year old complainant was intoxicated. She went to the toilet, which was a disabled toilet. The lock on the door was not working. The offender walked in and used the toilet. The complainant then blacked out and the next thing she remembered was that she was on the floor, her clothes had been pulled down, the offender was crouching between her legs, and he had his fingers inside her vagina. She tried to resist, without success. The offender then engaged in the various acts of sexual penetration with which he was charged, and the attempted fellatio. He desisted only when a friend of the complainant came knocking at the toilet door.
9. The appellant had favourable antecedents. The offending was found to be opportunistic. There was a late expression of remorse by the offender, but he had previously claimed the sexual contact was initiated by the complainant.
10. The appeal was successful on the basis of a factual error by the sentencing judge. In light of that error, the Court, by a majority,[112] considered that the sentences should be set aside, and the offender re‑sentenced. The Court reduced the sentence of 2 years and 8 months' imprisonment for each offence of sexual penetration to 2 years and 4 months' imprisonment, and held that two of those sentences should be served cumulatively. None of the other sentences or the orders for concurrency were varied. The total effective sentence was therefore 4 years and 8 months' immediate imprisonment.
11. In my view, the offending in Mountain is not comparable to that in the present case. It is not appropriate to focus on the individual sentences imposed for the sexual penetration counts, divorced from the total effective sentence. The offending in Mountain was undoubtedly very serious, but the offending in the present case was also very serious, by virtue of the aggravating circumstances, and the few mitigating factors.
12. In Miles v The State of Western Australia, the 17 year old complainant had been staying at a friend's house. She and her boyfriend went to sleep on a foldout bed. The complainant later awoke to find the offender lying on the other side of her to her boyfriend, who was asleep. The offender was moving two of his fingers inside and outside her vagina. The complainant was too scared to do anything. After a short time, the offender withdrew his fingers and turned away. The complainant made a complaint to other persons in the house the next day. The offender denied any wrongdoing. He told police that he was drunk, had gone to sleep on the same bed as the complainant and her boyfriend, that she had grabbed his hand and put it down her pants, near to her vagina, but he denied penetrating her vagina. The offender was convicted after trial. He appealed his sentence of 2 years' immediate imprisonment on the basis that it was manifestly excessive. Leave to appeal was refused.
13. The offending was assessed as being at the lower end of the range of seriousness for offences of this type. It was of short duration. While it did not involve violence it caused the complainant considerable trauma. The offender was 33 years of age at the time of the offence. He had prior convictions, including for an offence of procuring a child to do a sexual act. The sexual penetration offence was committed whilst the offender was subject to an intensive supervision order for that earlier offence.
14. In the present case, notwithstanding that the appellant was entitled to some benefit on account of his age and his personal circumstances, the additional aggravating features present in this case, namely the appellant's persistence, and the imbalance of power between the appellant and Ms S, distinguish the offending in count 2 as more serious than that involved in Miles.
15. In Taylor v The State of Western Australia, the offender was convicted, following a late plea of guilty, of one count of sexual penetration without consent, which involved a vaginal-penile penetration.
16. The offender, who was 59 years of age, and the 27 year old complainant, who knew each other but were not romantically involved, had been at the house of a mutual friend for New Year's celebrations. In the early hours of the morning, the complainant went into one of the bedrooms, and went to sleep in the bed, wearing a singlet and pants. She awoke to find she was naked, and the appellant was penetrating her vagina with his finger. Initially, the complainant thought that the person penetrating her was her partner, but once she realised that it was the appellant, she rolled away, located her clothes and left the room. The offender maintained that the complainant had consented to the sexual penetration. However, he entered a plea of guilty on the morning of the trial. That plea followed a concession by the State that as the complainant woke up she may have said something to give the offender an honest belief that she was consenting, but that it was unreasonable for him to hold that belief, given that she was waking up at the time.
17. The offender was sentenced to 3 years' immediate imprisonment. This Court held that that sentence was manifestly excessive. (In addition, as I have already noted, this Court also found that the sentencing judge erred in her conclusion that the digital penetration was only marginally less serious than a penile penetration would have been.) The Court set aside the sentence imposed and instead imposed a sentence of 2 years' immediate imprisonment.
18. There are some significant features which account for the difference in sentence imposed in Taylor as compared with this case. In Taylor, the offender was given a 15% discount for his plea of guilty. He had no relevant prior criminal record. He was sentenced on the basis that he had an honest, but unreasonable, belief that the complainant was consenting. Furthermore, the offender was assessed as being of borderline intelligence, and consequently lived with cognitive difficulties.
19. In the present case there were additional aggravating factors not present in Taylor, comparatively fewer mitigating factors, and the appellant did not obtain any discount for a plea of guilty, in contrast to the offender in Taylor. In my view, those important differences account for the different sentencing outcomes.
20. In Lakay v The State of Western Australia, the 24 year old complainant went with a female friend, M, to a nightclub, where they met with a male friend of M's and some of his friends, including the 30 year old offender. The complainant and the offender danced together and kissed a few times. In the early hours of the morning all of the group returned to M's unit. After socialising and drinking, everyone went to bed. The complainant was sleeping in one of the bedrooms at M's unit. There were not enough bedrooms for everyone. The complainant told the offender that he could sleep in her bed, so he would not have to sleep on the couch. The complainant got into bed fully clothed. The offender also went to bed fully clothed. Before they went to sleep they kissed once or twice, but no sexual touching was involved. Early the next morning the complainant awoke when she felt the offender behind her, sexually penetrating her vagina with his penis. She was shocked and did not know how to react. The penetration occurred for about one and a half to two minutes before the offender withdrew his penis and ejaculated between the complainant's legs. The complainant got out of bed and reported what had occurred, and made a complaint to the police later that day. After trial, the 30 year old offender was convicted and sentenced to 3 years 9 months' immediate imprisonment. Leave to appeal was refused.
21. The case involved the aggravating features that the victim still feared becoming pregnant because the offender ejaculated between her legs, and there was also the risk of contraction of an STI. The offending occurred because the appellant made a deliberate decision, for his own sexual gratification, to take advantage of the complainant, who was in a defenceless and vulnerable position whilst asleep. The offending also constituted a breach of the trust the complainant placed in the offender when she permitted him to sleep in the bed with her. The complainant provided a victim impact statement in which she outlined how the offending had had a significant adverse impact on her emotional and psychological wellbeing. There were some limited mitigating factors. The offender was of prior good character and had excellent antecedents. The need for personal deterrence was assessed as low.
22. The present case did not involve the aggravating features of the fear or risk of pregnancy or contraction of an STI which were necessarily present in Lakay. But there were two aggravating features which were not present in that case, namely that the offending involved persistence on the appellant's part, and also involved an imbalance of power between the appellant and Ms S. While the appellant derived some mitigating benefit from his youth, which was not a feature of Lakay, he did not derive the benefit of prior good character. Viewed in the context of these differences, the sentence imposed in Lakay and that imposed on the appellant for count 2 are broadly consistent.
23. Bearing in mind that the purpose of comparison is to ensure broad consistency in the sentencing of offenders for broadly comparable cases, in my view, when account is taken of the material differences between the present case, and the other cases on which the appellant relied, the sentence imposed in the present case cannot be seen as anomalous.
24. I next turn to consider all of the circumstances surrounding the commission of the offence in count 2, and to the aggravating circumstances, and to the limited mitigating factors, present in this case. The offending in count 2 was clearly not at the most serious end of the spectrum of offending conduct of this kind. Nevertheless, in my view, this case involved a very serious instance of sexual penetration without consent.
25. Taking into account the maximum penalty for count 2, the facts and circumstances of the offending, the appellant's personal circumstances, the aggravating circumstances, the limited mitigating factors present in this case, the significant psychological trauma suffered by Ms S, and having regard to the sentences imposed in the cases relied on by the appellant (bearing in mind the material differences between those cases and this one) I am not persuaded that the sentence of 3 years and 6 months' imprisonment which was imposed in this case was unreasonable or plainly unjust.
26. Leave to appeal on ground 2 should therefore be refused.
27. The appeal must therefore be dismissed.

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

[1] C v The State of Western Australia [2006] WASCA 261 (C v The State of Western Australia) [35] (Wheeler JA); The State of Western Australia v Akizuki [2008] WASCA 267; (2008) 192 A Crim R 373 (The State of Western Australia v Akizuki) [68] (Steytler P).

[2] The State of Western Australia v Akizuki [68] (Steytler P).

[3] C v The State of Western Australia [32] (Wheeler JA).

[4] NPA v The State of Western Australia [2018] WASCA 131 [51].

[5] Taylor v The State of Western Australia [2019] WASCA 217.

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

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

[8] Ibbs v The Queen [1987] HCA 46; (1987) 163 CLR 447.

[9] R v AJP [2004] NSWCCA 434; (2004) 150 A Crim R 575.

[10] R v Hibberd [2009] NSWCCA 20; (2009) 194 A Crim R 1.

[11] DN v The Queen [2016] NSWCCA 252; (2016) 92 NSWLR 600.

[12] Alarcon v The Queen [2018] NSWCCA 298.

[13] R v Wark [2008] QCA 172.

[14] R v Colless [2010] QCA 26; [2011] 2 Qd R 421.

[15] R v Brown [2002] VSCA 207; (2002) 5 VR 463.

[16] R v Riley [2006] NTCCA 10; (2006) 161 A Crim R 414.

[17] The State of Western Australia v Turaga [2006] WASCA 199.

[18] Western Australian Parliamentary Debates, 3 September 1985, p 700.

[19] Bentley v The State of Western Australia [2007] WASCA 38.

[20] Cavill v The State of Western Australia [2008] WASCA 108.

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

[22] Costa v The State of Western Australia [2019] WASCA 3.

[23] The State of Western Australia v Hussian [2020] WASCA 186 [119] ‑ [120].

[24] Kabambi v The State of Western Australia [2019] WASCA 44 [22] ‑ [23].

[25] Lakay v The State of Western Australia [2019] WASCA 46 [37] ‑ [38].

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

[27] Grubisic v The State of Western Australia [2011] WASCA 147; (2011) 41 WAR 524.

[28] The State of Western Australia v Vartolo [2015] WASCA 53.

[29] Powell v The Queen (unreported, WASCA, Library No 8928, 6 June 1991).

[30] Coulter v The Queen (unreported, WASCA, Library No 960507, 4 September 1996).

[31] Prempeh v The State of Western Australia [2013] WASCA 150.

[32] Mountain v The State of Western Australia [2009] WASCA 161.

[33] Miles v The State of Western Australia [2010] WASCA 93.

[34] The State of Western Australia v Zhuang [2021] WASCA 56 [111] and the cases there cited.

[35] Barbaro v The Queen [2014] HCA 2; (2014) 253 CLR 58 [25] (French CJ, Hayne, Kiefel & Bell JJ).

[36] Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665 [15] (Gleeson CJ, Gaudron, McHugh, Gummow, Kirby, Hayne & Callinan JJ).

[37] Order of Buss P, 15 June 2020, White Appeal Book (WAB) 4.

[38] Order of Buss P, 31 August 2020, WAB 5.

[39] Order of Buss P and Mazza JA, 13 October 2020, WAB 10.

[41] Sentencing (25 October 2019) ts 250; WAB 80.

[42] Sentencing (25 October 2019) ts 251; WAB 81.

[43] Sentencing (25 October 2019) ts 251; WAB 81.

[44] Sentencing (25 October 2019) ts 251; WAB 81.

[45] Sentencing (25 October 2019) ts 251; WAB 81.

[46] Sentencing (25 October 2019) ts 251 - 252; WAB 81 - 82.

[47] Sentencing (25 October 2019) ts 252; WAB 82.

[48] Sentencing (25 October 2019) ts 252; WAB 82.

[49] Sentencing (25 October 2019) ts 252; WAB 82.

[50] Sentencing (25 October 2019) ts 252; WAB 82.

[51] Sentencing (25 October 2019) ts 252; WAB 82.

[52] Sentencing (25 October 2019) ts 252; WAB 82.

[53] Sentencing (25 October 2019) ts 242; WAB 72.

[54] Sentencing (25 October 2019) ts 254; WAB 84.

[55] Sentencing (25 October 2019) ts 253; WAB 83.

[56] Sentencing (25 October 2019) ts 253; WAB 83.

[57] Sentencing (25 October 2019) ts 253; WAB 83.

[58] Sentencing (25 October 2019) ts 254; WAB 84.

[59] Sentencing (25 October 2019) ts 254; WAB 84.

[60] Sentencing (25 October 2019) ts 254; WAB 84.

[61] Sentencing (25 October 2019) ts 255; WAB 85; WAB 93 - 96.

[62] Sentencing (25 October 2019) ts 256 - 259; WAB 86 - 89.

[63] Sentencing (25 October 2019) ts 254 - 255; WAB 84 - 85.

[64] Sentencing (25 October 2019) ts 255; WAB 85.

[65] Sentencing (25 October 2019) ts 256; WAB 86.

[66] Sentencing (25 October 2019) ts 256; WAB 86.

[67] Sentencing (25 October 2019) ts 256; WAB 86.

[68] Sentencing (25 October 2019) ts 254, 256; WAB 84, 86.

[69] Sentencing (25 October 2019) ts 255; WAB 85.

[70] Sentencing (25 October 2019) ts 256; WAB 86.

[71] Sentencing (25 October 2019) ts 256; WAB 86.

[72] Sentencing (25 October 2019) ts 259; WAB 89.

[73] Sentencing (25 October 2019) ts 259; WAB 89.

[74] Sentencing (25 October 2019) ts 259; WAB 89.

[75] Sentencing (25 October 2019) ts 259; WAB 89.

[76] Sentencing (25 October 2019) ts 260-261; WAB 90-91.

[77] See Criminal Appeals Act 2004 (WA) s 28(3).

[78] Criminal Appeals Act 2004 (WA) s 28(3).

[79] Wilson v The State of Western Australia [2014] WASCA 236, [27] ­ [29].

[80] Affidavit of Jeffry Alan Scholz sworn 6 August 2020, Annexure MK1, Report of Dr Maire Kelly p3 (WAB 16).

[81] Affidavit of Jeffry Alan Scholz sworn 6 August 2020, Annexure MK1, Report of Dr Maire Kelly p11 (WAB 24).

[82] Respondent's submissions as to admissibility of evidence on appeal, [2] WAB 25.

[83] Respondent's submissions as to admissibility of evidence on appeal, [15] WAB 27.

[84] Respondent's submissions as to admissibility of evidence on appeal, [13] WAB 27.

[85] Respondent's submissions as to admissibility of evidence on appeal, [16.2] WAB 27.

[86] Criminal Appeals Act 2004 (WA) s 39(1).

[87] Criminal Appeals Act 2004 (WA) s 39(3).

[88] Criminal Appeals Act 2004 (WA) s 40(1)(e).

[89] See KMT v The State of Western Australia [No 2] [2018] WASCA 49, [46].

[90] KMT v The State of Western Australia [No 2], [47].

[91] Smith v The State of Western Australia [2014] WASCA 90, [159] - [160] (Mazza JA), referring to Ratten v The Queen [1974] HCA 35; (1974) 131 CLR 510, 517 ‑ 518 (Barwick CJ) and DPJB v The State of Western Australia [2010] WASCA 12, [66] (Owen JA).

[92] HJT v The State of Western Australia [2020] WASCA 120, [57], referring to Rinaldi v The State of Western Australia [2007] WASCA 53 [84]; Huggins v The State of Western Australia [2018] WASCA 61, [395] - [396].

[94] Taylor v The State of Western Australia [2019] WASCA 217 (Taylor).

[98] Acts Amendment (Sexual Assaults) Act 1985 (WA).

[99] Western Australia, Parliamentary Debates, Legislative Assembly, 3 September 1985, 700 (Mrs Beggs).

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

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

[102] Samuels v Western Australia (2005) 30 WAR 473; [2005] WASCA 193.

[104] Mountain v The State of Western Australia [2009] WASCA 161.

[105] Miles v The State of Western Australia [2010] WASCA 93.

[106] Lakay v The State of Western Australia [2019] WASCA 46.

[111] See, eg, Trainor v The State of Western Australia [2021] WASCA 36, [36]; Ng v The State of Western Australia [2020] WASCA 70, [38] - [40]; Jiang v The State of Western Australia [2020] WASCA 7, [75]; Lakay v The State of Western Australia, [36].

[112] McLure JA, Buss JA agreeing. Miller JA concluded that despite the error, each of the sentences imposed was entirely within the range of sentences that could have been imposed, as was the aggregate sentence, and for that reason concluded that the appeal should be dismissed: [72] - [73].