An attempt to insert a finger into a victim's vagina that causes pain may constitute sexual penetration within the meaning of s 35 of the Crimes Act 1958 (Vic), because penetration of the external genitalia (included in the statutory definition of vagina) can be inferred from the pain caused. Reference in sentencing reasons to uncharged acts described in an undisputed Crown summary does not constitute error where the same sentences are imposed on counts with and without such references, confirming the acts were not treated as aggravating.
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