Sexual penetration of an unconscious victim is not a less serious category of offending under s 325 of the Criminal Code (WA). The violation of an unconscious person's body is not necessarily less serious than offending against conscious victims, and the psychological impact on unconscious victims may in some cases be greater. In comparative sentencing analysis, the relevant comparison is between what offenders have done and the impact on victims, not the different bases on which offenders chose to defend the case at trial. A sentence of 3 years 9 months' imprisonment for a single count of penile-vaginal penetration of a sleeping victim after trial, in the absence of youth, is within the range of a sound exercise of the sentencing discretion.
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