25 The Crown submitted that while his Honour well appreciated that the application of s 54B of the Sentencing Act required him to hypothesise the features of an abstract offence in the mid range of objective seriousness as a significant point of reference for sentencing purposes in accordance with R v Way [2004] NSWCCA 131; 60 NSWLR 168, and that his Honour appeared to recognise that the standard non-parole period in respect of each of the three counts of sexual intercourse was substantial whether standing alone or by comparison with the maximum sentence of imprisonment of 25 years, he nonetheless erred both in his assessment of where the subject offending fell in the abstract range of offending under the section and in concluding that the imposition of the standard non-parole period was either not warranted because it was not typical of cases where the standard non-parole period was required, or because of the subjective circumstances of the respondent, or both.
26 In R v AJP [2004] NSWCCA 434; 150 A Crim R 575 at [13], Simpson J observed that the assessment of objective criminality when a standard non-parole period is provided should be approached intuitively based upon the general experience of the courts in sentencing for the particular offence at issue. Accordingly, it was necessary for his Honour to have regard to the nature of the sexual intercourse that was constituted by each offence and the circumstances in which the offences were committed. While there is no hierarchy of sexual acts that constitute sexual intercourse for the purposes of the criminal law, it is generally accepted that some forms of sexual activity may be regarded as more serious than others (see Ibbs v R (1987) 163 CLR 447). This is of course necessarily modified by the context in which the offence occurred, and other circumstances of the particular offending to which Simpson J referred in AJP at [24]-[26].
27 Despite making clear that offences involving an adult sexually assaulting a child of six or seven could not be regarded as otherwise than grave, his Honour was nevertheless satisfied that the acts of cunnilingus constituted by Counts 1 and 2 on the indictment were, in general terms, less serious than the penile penetration in Count 5. Furthermore, in so far as the penile penetration was concerned, since his Honour was satisfied that penetration was to a minor degree, albeit sufficient to amount to the actus reus of the offence, he found that count 5 was not objectively more serious than counts 1 and 2.
28 While it was open to his Honour to differentiate between the sexual intercourse in counts 1 and 2 on the one hand and the sexual intercourse in count 5, for my part, to reason to the conclusion that the act of penile penetration in this case was of the same order of seriousness as cunnilingus simply by reason of the fact that the respondent's penis penetrated the child's genitalia only to a small extent, is to fail to give account to the fact that penile penetration of a young child involves conduct of a quite different order and criminality of a more serious kind than other forms of sexual intercourse contemplated by the statutory definition in s 61H of the Crimes Act. In that connection I note the observation of the Chief Justice in RJA v R [2008] NSWCCA 137 at [33] that a limited degree of penetration is not necessarily indicative of a lower level of objective criminality. The Crown has not sought to refer the Court to the evidence of the child so as to amplify the context in which the penile penetration occurred or the reason the respondent desisted, and while his Honour made reference to the child's evidence at the previous trial, to the effect that she told the respondent that "it hurts", he did not make it clear whether she gave the same evidence at the second trial, still less whether he took it into account for sentencing purposes.
29 I acknowledge that judgments of the kind his Honour made as to the relative ordering of seriousness of the types of sexual intercourse, involve the exercise of a broad discretion with which this Court may not interfere, particularly where the sentencing judge has presided over the trial. I will return to consider whether this feature, in the context of all the circumstances bearing upon an assessment of the objective seriousness of the counts of sexual intercourse, justified his Honour's finding that the offending was less than mid range.