TAYLOR -v- THE STATE OF WESTERN AUSTRALIA [2019] WASCA 217 | Case summary

Court of Appeal (WA)|2020-04-09|Before: Buss P

For the reasons we have given, we decided on 20 December 2019 that leave to appeal should be granted on grounds 1 and 2, leave to appeal should be refused on ground 3, the appeal should be allowed and the sentencing decision of the sentencing judge should be set aside.
This court had the material necessary to resentence the appellant.
Like her Honour, we reduced the head sentence we would otherwise have imposed by 15%, pursuant to s 9AA of the Sentencing Act, in recognition of the appellant's plea of guilty.
After taking into account the maximum penalty and all relevant sentencing factors and principles (including reducing the sentence we would otherwise have imposed on account of the other mitigating factors, apart from the plea of guilty, referred to by the sentencing judge), we imposed a sentence of 2 years' immediate imprisonment, backdated to 11 October 2018, with parole eligibility.
The effect of the orders the court made on 20 December 2019 was that the appellant became eligible to be considered for release on parole as from 11 October 2019.

[1] Greenland v The State of Western Australia [2017] WASCA 83 [179] (Newnes & Mazza JJA & Beech J).

[2] McNally v The State of Western Australia [2019] WASCA 93 [60] (Buss P & Beech JA).

[3] C v The State of Western Australia [2006] WASCA 261 [32] ‑ [33].

[4] The State of Western Australia v Akizuki [2008] WASCA 267 [68].

[5] Cavill v The State of Western Australia [2008] WASCA 108 [265] ‑ [267] (Miller JA; McLure & Buss JJA agreeing).

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

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

[8] PAS v The State of Western Australia [2009] WASCA 210 [99] (Buss JA; Owen & Wheeler JJA agreeing).

[9] BGE v The State of Western Australia [2013] WASCA 136 [28] (Buss JA; Mazza JA agreeing).

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

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

[12] Bennell v The State of Western Australia [2011] WASCA 174.

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

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).

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).

TAYLOR -v- THE STATE OF WESTERN AUSTRALIA [2019] WASCA 217 (9 April 2020)

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