DI CIANO -v- THE STATE OF WESTERN AUSTRALIA [2026] WASCA 120

[2026] WASCA 120 Page 1 JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : DI CIANO -v- THE STATE OF WESTERN AUSTRALIA [2026] WASCA 120 CORAM : MITCHELL JA VAUGHAN JA SEAWARD JA HEARD : 23 JULY 2026 DELIVERED : 28 AUGUST 2026 FILE NO/S : CACR 114 of 2024 BETWEEN : MAURIZIO DI CIANO Appellant AND THE STATE OF WESTERN AUSTRALIA Respondent FILE NO/S : CACR 115 of 2024 BETWEEN : MAURIZIO DI CIANO Appellant AND THE STATE OF WESTERN AUSTRALIA Respondent ON APPEAL FROM: Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA Coram : MASSEY DCJ File Number : IND 1887 of 2021 -- 1 of 37 -- [2026] WASCA 120 Page 2 Catchwords: Criminal law - Sexual offences - Appellant convicted of three counts of sexual penetration without consent of employee in appellant's restaurant - Whether miscarriage of justice arose from prosecutor's invitation for jury to find appellant made implied admissions in pretext call between complainant and appellant or trial judge's directions as to how evidence of pretext call could, and could not, be used Criminal law - Sentencing - Sexual offences - Whether total effective sentence of 7 years 6 months' imprisonment for three counts of sexual penetration without consent infringes first limb of totality principle Legislation: Criminal Code (WA), s 325 Result: CACR 114 of 2024 Leave to appeal granted on ground 1 Leave to appeal refused on ground 2 Appeal dismissed CACR 115 of 2024 Leave to appeal granted Appeal dismissed Category: B Representation: CACR 114 of 2024 Counsel: Appellant : R S Sleeth Respondent : T B L Scutt Solicitors: Appellant : Rebekah Sleeth Respondent : Director of Public Prosecutions (WA) -- 2 of 37 -- [2026] WASCA 120 Page 3 CACR 115 of 2024 Counsel: Appellant : R S Sleeth Respondent : T B L Scutt Solicitors: Appellant : Rebekah Sleeth Respondent : Director of Public Prosecutions (WA) Case(s) referred to in decision(s): Alalyani v The State of Western Australia [2018] WASCA 44 Costa v The State of Western Australia [2019] WASCA 3 Dodd v The State of Western Australia [2014] WASCA 13; (2014) 238 A Crim R 72 Edwards v The Queen [1993] HCA 63; (1993) 178 CLR 193 Evans v The State of Western Australia [2020] WASCA 26; (2020) 55 WAR 310 Kabambi v The State of Western Australia [2019] WASCA 44 Lyons & Lyons v The Queen (1992) 64 A Crim R 101 MAM v The State of Western Australia [2018] WASCA 35 Mehta v The State of Western Australia [2023] WASCA 24; (2023) 305 A Crim R 455 Moiler v The State of Western Australia [2026] WASCA 63 Musgrave v The State of Western Australia [2021] WASCA 67; (2021) 289 A Crim R 17 R v Clark [2000] WASCA 229 R v MMJ [2006] VSCA 226; (2006) 166 A Crim R 501 Roffey v The State of Western Australia [2007] WASCA 246 Tham Shengen v The State of Western Australia [2025] WASCA 140 The State of Western Australia v Akizuki [2008] WASCA 267; (2008) 192 A Crim R 373 The State of Western Australia v Bascunan Cabrera [2023] WASCA 34 The State of Western Australia v Hussian [2020] WASCA 186 The State of Western Australia v McBride [2015] WASC 275 The State of Western Australia v Richards [2008] WASCA 134; (2008) 37 WAR 229 Thong v The State of Western Australia [2020] WASCA 182 -- 3 of 37 -- [2026] WASCA 120 JUDGMENT OF THE COURT Page 4 JUDGMENT OF THE COURT: Introduction 1 On 24 July 2024, the appellant was convicted after trial by jury of three counts of sexually penetrating the complainant without her consent. On 11 October 2024, the appellant was sentenced to a total effective sentence of 7 years 6 months' imprisonment for those offences. The sentence was backdated to 24 July 2024, and the appellant was made eligible for parole. The complainant was employed at the appellant's restaurant in Highgate. The offences were alleged to have occurred on two occasions on 19 December 2020 during the complainant's second shift at the restaurant. 2 On 29 October 2024, the appellant appealed against his convictions and sentence. 3 There are two grounds in the conviction appeal. Ground 1 contends that a miscarriage of justice was occasioned by the trial judge failing to adequately direct the jury on how they could and could not use implied admissions allegedly made by the appellant in a 'pretext call'. Ground 2 of the conviction appeal contends that a miscarriage of justice was occasioned by the prosecutor inviting the jury to find that the appellant made implied admissions based on what he failed to say in the pretext call. 4 The sole ground of the appeal against sentence is that the total effective sentence of 7 years 6 months' imprisonment infringed the first limb of the totality principle. 5 The applications for leave to appeal on these grounds have been referred to the hearing of the appeals. 6 For the following reasons none of these grounds of appeal is established and the appeals must be dismissed. Prosecution case at trial 7 On 19 December 2020, the 22-year-old complainant was working her second shift at the appellant's No Menu Finest Italian Restaurant in Highgate. The complainant had met the 47-year-old appellant when she came for lunch at the restaurant a few weeks earlier. After exchanges of -- 4 of 37 -- [2026] WASCA 120 JUDGMENT OF THE COURT Page 5 text messages, the complainant worked her first trial shift at the restaurant on 18 December 2020.1 8 The offending allegedly occurred during the complainant's second shift at the restaurant on Saturday 19 December 2020, which began at about 4.30 pm.2 9 During the shift, the appellant said that he was very sore and asked the complainant for a massage. She massaged around his shoulder and neck for a couple of minutes and then went back to work.3 Not long afterwards, the appellant approached the complainant and placed a $50 note down her top and into her bra near her nipple. The appellant's hand made contact with her breast as he did so. The appellant then walked off.4 10 Not long after that, the appellant called out to the complainant and told her to come with him for a tour of the restaurant. He took her to a back storeroom, closing and locking the door.5 He again placed a $50 note down her top. The appellant asked the complainant whether she liked him. The complainant said she did not know because she barely knew him.6 11 The appellant then pulled his pants and underpants down, exposing his erect penis, and sat on a chair. He repeatedly told the complainant to come to him. The complainant eventually took a few steps towards the appellant. The appellant grabbed the complainant's hand and put it on his penis.7 This was the offence of indecent assault charged in count 1 of the indictment,8 of which the appellant was acquitted. 12 The appellant then pushed the complainant's head onto his penis and pressed firmly to make her give him oral sex.9 This was the sexual penetration without consent charged in count 2 of the indictment of which the appellant was convicted. 13 When the appellant stopped pushing the complainant's head, she stood up and moved away from him. The appellant then stood up and 1 Trial ts 77 - 78, 84 - 93. 2 Trial ts 95. 3 Trial ts 97 - 98. 4 Trial ts 98 - 100. 5 Trial ts 100 - 101. 6 Trial ts 102 - 103. 7 Trial ts 103 - 105. 8 The four counts on which the appellant was tried were joined with other counts in the indictment. A 'dummy' indictment with only those four counts was used at trial. It is convenient to refer to the counts on the 'dummy' indictment in these reasons. 9 Trial ts 104, 106. -- 5 of 37 -- [2026] WASCA 120 JUDGMENT OF THE COURT Page 6 went over to where the complainant was standing. He turned her around so that she was facing away from him and he was behind her. The appellant pulled the complainant's pants and underpants down, and inserted his penis into the complainant's vagina. At this point, the complainant told the appellant, 'No,' and asked him to stop several times. The appellant continued thrusting his penis into the complainant's vagina. To try to get him to stop, the complainant told the appellant that he needed to wear a condom as she could get pregnant. The appellant kept going and said something to the effect of, 'I know what I'm doing. I'm not coming yet'. The appellant's phone then rang and he stopped to answer it.10 The penile penetration of the complainant's vagina was the sexual penetration without consent charged in count 3 of the indictment, of which the appellant was convicted. 14 While he was on the phone call, the appellant got dressed. After he finished the phone call and opened the door, the complainant cleaned herself up in a bathroom and went back to work.11 15 Later in the evening, the appellant, who was then quite intoxicated, insisted the complainant accompany him to a function room. She eventually complied. In the function room, the appellant pushed a $50 note into the complainant's pants, guided her to lie on her back on a couch and used two of his fingers to penetrate the complainant's vagina. The complainant told the appellant, 'No, stop', several times, and she attempted to push his hand away from her vagina. The appellant continued to penetrate the complainant's vagina with his fingers.12 This digital penetration of the complainant's vagina was the sexual penetration without consent charged in count 4 of the indictment, of which the appellant was convicted. 16 When the appellant stopped, the complainant got up and said that she needed to go. The complainant then went back to work. She finished the rest of the shift. At around midnight, only the complainant, the appellant and another staff member remained at the restaurant. The complainant agreed to drive the heavily intoxicated appellant to his apartment, where he insisted she come in for a drink and tried to give her more money which the complainant said she did not need. Eventually, the complainant and appellant drove back to the restaurant, where the complainant's mother picked her up.13 10 Trial ts 107 - 109. 11 Trial ts 109, 111, 114. 12 Trial ts 115 - 120. 13 Trial ts 123 - 131. -- 6 of 37 -- [2026] WASCA 120 JUDGMENT OF THE COURT Page 7 17 The complainant told her partner, who was working remotely, what had happened the following morning. The complainant's partner returned to Perth, and they went with the complainant's mother to a police station where the complainant reported the sexual assault.14 Defence case at trial 18 The appellant made the following formal admissions at the commencement of the trial:15 1. As at 19 December 2020, [the appellant] was the owner of No Menu Finest Italian Restaurant which operated from premises at 448 Beaufort Street, Highgate. 2. As at 19 December 2020, [the complainant] was an employee of No Menu Finest Italian Restaurant. 3. On 19 December 2020 at Highgate, [the complainant] rubbed the penis of [the appellant]. 4. On the same date and at the same place, [the complainant] engaged in fellatio with [the appellant]. 5. On the same date and at the same place, [the appellant] penetrated the vagina of [the complainant] with his penis. 19 The appellant, through his counsel, accepted that he engaged in sexual activity with the complainant on two separate occasions. On the second occasion in the function room, he rubbed the complainant's vagina over her clothing but denied digitally penetrating her vagina. The appellant's case was that the complainant was consenting to that sexual activity.16 The appellant's trial counsel summed up the appellant's position in opening in the following terms: [T]he real issue in this trial, as I've said, is the issue of consent. The issue that the State has to prove, the State has to prove beyond reasonable doubt and that the only evidence you will hear will be from [the complainant] whose behaviour, acts, messages, all sorts of factors, combined with a number of inconsistencies I anticipate you're going to hear, should lead you to a point, members of the jury, where you simply couldn't be satisfied of her credibility beyond reasonable doubt. 20 In closing, the appellant's trial counsel suggested to the jury that they would not get close to considering whether, if the complainant was not consenting, the appellant may have been honestly and reasonably 14 Trial ts 131 - 137. 15 Exhibit 1, trial ts 71 - 72. 16 Trial ts 64 - 65. -- 7 of 37 -- [2026] WASCA 120 JUDGMENT OF THE COURT Page 8 mistaken that she was consenting. However, he submitted that the State had not disproved that the appellant was acting under an honest and reasonable but mistaken belief that the complainant was consenting to the sexual activity.17 21 The appellant did not give or adduce any evidence at trial. The pretext call and subsequent text message exchange 22 After the complainant reported the incident to police, she made a pretext call to the appellant from the police station. The appellant did not answer but called the complainant back a short time later. The call was recorded by police.18 23 After initial greetings, the following exchange occurred:19 Complainant: Oh, I'm so sorry. Um - - - Appellant: What happened? Complainant: I'm just - mmm - I don't think I can go to work today. Appellant: Not feeling good? Complainant: Yeah. I'm not feeling - - - Appellant: Hello? Complainant: I'm not feeling good because - - - Appellant: What happened? Complainant: Do you remember that - on Saturday, um - - - Appellant: What happened? Complainant: Do you remember that you bring me to the room? Yeah. Do you remember that? You locked the door and you just made me feel that a little scared and that. Appellant: I'm sorry. Complainant: And, um - - - Appellant: I'm happy to sort that out with you. I'm really, really sorry. Unfortunately I was a bit you know [indistinct] shocked [indistinct] can't remember. I'm happy to work it out with you. Okay? 17 Trial ts 452 - 453. 18 Trial ts 149 - 150. 19 BGAB 13. -- 8 of 37 -- [2026] WASCA 120 JUDGMENT OF THE COURT Page 9 Complainant: Um - - - Appellant: Sorry to hear this. Complainant: Um, yeah. Just, I think I need to let you know that the things happen on Saturday - - - Appellant: Can we talk about it? Complainant: Can - can I talk to you now? Appellant: Yeah. Complainant: Yeah. And I just feel scared when you locked the door and I - do - do the things to me. So, after I went home I just felt - just felt that - uncomfortable and really scared about that - the things you did to me. Just need to let you know my feelings. Appellant: I'm so sorry. I'm so sorry. I get it. I get it. Complainant: You get it? Appellant: So sorry to do that. Yes. I get it. I'm so sorry. I didn't - I didn't expect you to take it like that and I was probably too aggressive or too - too nervous because I had a - it's an issue with work and so forth you know? Complainant: I know. Appellant: So, I'm sorry. Uh, and thank you for taking me home and taking care of me. And I'm sorry to - to hear this. And I'm happy to - to - to make sure that you're okay. So, if you wanna see a doctor or you wanna see somebody or you need some help, financially or whatever, I'm happy to help you 'cause you're a good girl. Complainant: Yeah. Appellant: You're a really, really good girl. Sorry. Complainant: I appreciate that. Appellant: Sorry to do this. (emphasis added) 24 The appellant and complainant then discussed whether the complainant would return to work. In the course of that discussion, the following exchange occurred: Complainant: Can you promise me that you won't do that to me again? Appellant: I promise you. I will, I - I swear. -- 9 of 37 -- [2026] WASCA 120 JUDGMENT OF THE COURT Page 10 Complainant: Like - - - Appellant: I swear. Complainant: Like, I don't want your money or anything and I just - I just need to - I just need you to respect me. Okay? Appellant: I will. I'm so sorry. Complainant: So, you understand? Appellant: Sorry you feel like that. Complainant: No. I'm all right now. I just - I think you need to know this and I'm really happy to work in your restaurant and - - - Appellant: Come in tonight. Complainant: - - - I really enjoy, but - - - Appellant: You know? A bit later. Come at 4.00 or 5.00. Complainant: - - - but I just don't - - - Appellant: Can you make it by 5.00 tonight? Complainant: I just don't want to that you do anything to me again. Okay? Appellant: Okay. Okay. Complainant: Can you promise that? Appellant: I promise. I will promise. It'll be your choice. Complainant: Thank you. Appellant: Okay? Complainant: Thank you. Appellant: It'll be your choice on what happen. Complainant: Thank you understand this. 25 The complainant and appellant then discussed whether the complainant would come into work the next day. The discussion ended with the complainant saying that she would let the appellant know how she felt the next day. -- 10 of 37 -- [2026] WASCA 120 JUDGMENT OF THE COURT Page 11 26 At 12.18 pm on the following day, 22 December 2020, the complainant sent the appellant a text message. The substantive part of the text message was:20 I don't think i can come back to work for now, because you force me to do what i don't want to do, like have sex with you last Saturday, i have been through a lot, i need some space 27 At 1.25 pm on the same day, the appellant responded by text message, the substantive part of which read:21 I never forced anyone and never will. Sorry for the miss understanding [sic] and please feel free to contact me if you need any help. Could you please send me your hours so I can organise your wage today. Many thanks Prosecutor's submissions about the pretext call and text messages 28 In his opening address to the jury, the prosecutor made the following comments about the pretext call:22 [D]uring the call that you'll hear in this case, [the complainant] called the [appellant] and she told him that when he took her into the room and locked the door, she was uncomfortable and really scared. The [appellant] responded by saying, 'I'm so sorry. I'm so sorry. I get it. I get it.' The [appellant] then said, 'So sorry to do that. I get it. I'm so sorry. I didn't expect you to take it like that and I was probably too aggressive or too nervous because I had an issue with work and so forth, you know.' Now, this call goes for about six minutes. There's a lot more that's said, but that's some of the things that are said. Now during the call, the [appellant] did not make any clear statements to the effect that [the complainant] didn't consent to the sexual activity, so you're not going to hear that. Rather, his comments were more general in nature and consisted of him apologising although not really saying what he was apologising for. The State will ultimately suggest that the contents of the call and the fact that the [appellant] is apologising about what happened, supports [the complainant's] allegations that the sexual activity that occurred in that rear storage room was non-consensual. (emphasis added) 20 Exhibit 12. 21 Exhibit 12. 22 Trial ts 61 - 62. -- 11 of 37 -- [2026] WASCA 120 JUDGMENT OF THE COURT Page 12 29 In his closing address, the prosecutor made the following submissions about the pretext call:23 I suspect that what I say and the defence say to you during our closing addresses, are going to be complete opposites, particularly about this call. You can understand why that's the case, but the important thing is it's what you think. And I'd suggest it's not just what the [appellant] says during this call, it's what he doesn't say. [The complainant] told the [appellant] that she felt scared when he took her to the room and locked the door. Defence suggest that her comments all relate to feelings when she got home, not at the time. But I'd suggest if you look at the call, she clearly said: I felt scared when you took me to that room and locked the door It's there, clear as day. So the [appellant] is told, 'When you took me in a room and locked the door', which must be the storeroom, 'I was scared.' That's what he's told. And he knows they had sexual activity in that room, because he admits the conduct subject to counts 1, 2 and 3. And what did he say in response: I'm so sorry. I'm so sorry. I get it. I get it. Now, I'm not going through the call chapter and verse, there's other bits in there, and I encourage you to listen to when you go into the jury room. But he's told she was scared, his response: I'm so sorry. I'm so sorry. I get it. I get it. Not 'What do you mean you were scared? What are you talking about? You put your hands into my pants. You're the one that started fondling my penis, you unbuckled my belt. You pulled my pants down. You're the one that initiated sexual activity. You pulled your stuff down, you jumped on the sofa, you opened your legs. What are you talking about? You're kissing me'. Rather, he immediately apologised and says he gets it. And if this was consensual, how can he get it [that the complainant] was scared? How does being scared fit into a consensual sexual encounter in the circumstances of this case? [The complainant] then states: You get it? - and the [appellant] responds: So sorry to do that. Yes, I get it. I'm so sorry. I didn't expect you to take it like that and I was probably too aggressive or too nervous because I had an issue with work and so forth, you know. 23 Trial ts 388 - 389. -- 12 of 37 -- [2026] WASCA 120 JUDGMENT OF THE COURT Page 13 I don't know about you, members of the jury, but consensual sexual encounters don't normally involve one person calling the other person and saying that they were scared in the circumstances that that conversation took place. And that that person, being the [appellant], apologises numerous times, doesn't ask what she's talking about, and then says, 'I was probably too aggressive'. And again, I would encourage you to listen to that call. Ultimately, I suggest, that the [appellant's] statements in that pretext call support [the complainant's] evidence that she did not consent to this sexual activity. (emphasis added) 30 In relation to the subsequent text message, the prosecutor submitted:24 Defence may suggest that this is proof that the [appellant] was not making any admissions in the pre-text call. Because once it's clear what [the complainant] was alleging, you get this denial. So at this stage, I would suggest, members of the jury, that the [appellant] is in self-preservation mode. He's been confronted in the pre-text call and then he's sent a message in writing, clearly accusing him of rape. As a matter of common sense, do you think he's going to write back saying, 'Yeah, I raped you. Sorry'. He's not being caught by surprise now. The call's happened, that surprise has washed away. He's now got that message. I think he takes about an hour to respond. You might also think that it's an unusual response from the [appellant], yet again. Again, the [appellant] doesn't say, 'What do you mean? What do you mean, I forced you? What on earth are you talking about? Were you even there last night? Well, this is what happened. Are you okay? Like, did you forget? You were the one who pulled my pants down' so forth, all of that. Instead, you just get this one-line denial and a, 'Sorry for the misunderstanding'. What misunderstanding? If this was a consensual sexual encounter that went down the way the defence suggested, where on earth is there scope for a misunderstanding? So if it's suggested that this denial message proves the [appellant's] innocence, I'd suggest it doesn't do that at all and you should simply put it to one side. 31 The prosecutor also relied on the pretext call in submitting that the appellant did not honestly believe that the complainant was consenting and that a reasonable person would not have formed that belief.25 24 Trial ts 390. 25 Trial ts 407 - 408. -- 13 of 37 -- [2026] WASCA 120 JUDGMENT OF THE COURT Page 14 Defence submissions about the pretext call and text messages 32 In cross-examination the complainant accepted that she never said to the appellant that he raped her or did sexual things without her consent.26 In his closing submissions, the appellant's trial counsel said:27 Now, the State also relies heavily on the pretext call, which I've already taken you to. Can I just point this out, because she gave this evidence? [The complainant] accepted that at no stage in that call did she directly confront him with the allegations. And she didn't. Never said 'You raped me.' Never said anything about consent. None of those things. I pause there to think, well, that's the whole purpose of this call so why didn't you do that. But that's okay. (emphasis added) 33 After a matter was discussed in the absence of the jury, counsel continued:28 Just in relation to the pretext call though, members of the jury, as I said, she never specifically put the allegation to him. All she ever says is, 'I was a bit scared'. She refers to the [sic] feeling uncomfortable after she goes home. But can I ask you to consider that particular evidence in the context of the text message that he sends? It was 22 December when, for the very first time, she confronts him with an allegation that what happened was non-consensual. And his response was, 'Dear [complainant], I never forced anyone and never will'. So the very first time that he's confronted with a specific allegation, not a call that's meant to have all this subtext and he's meant to be understanding things and - none of that, the very first time that he's confronted with a specific allegation, 'I never forced you'. What more could you say? What more could you say in response to an allegation that you've done these things non-consensually? 'I never forced you and never will'. So please, members of the jury, when you're considering the pretext call, please consider the evidence as a whole, realise that there is no specific allegation put in relation to the pretext call, and she accepted that. I don't know why she didn't do it. That was the whole purpose of it, but she didn't. But when she did put the allegation, members of the jury, of an absence of consent, he said, 'I never forced you and never will'. (emphasis added) 34 The appellant's trial counsel also sought to make positive forensic use of the pretext call, in particular the complainant's statement to the appellant that: 26 Trial ts 241 - 242. 27 Trial ts 447. 28 Trial ts 451. -- 14 of 37 -- [2026] WASCA 120 JUDGMENT OF THE COURT Page 15 So, after I went home I just felt - just felt that - uncomfortable and really scared about that - the things you did to me. (emphasis added) 35 Trial counsel put to the complainant and submitted to the jury that this statement reflected the complainant's regret of consensual sexual activity after she went home, rather than an absence of consent at the time.29 Trial judge's direction about the pretext call and text messages 36 The trial judge referred to the pretext call in giving the jury a standard inferences direction. Most relevantly, after explaining inferential reasoning in general, his Honour said:30 Now, as an example in this case the State says that there's an inference to be drawn; the [appellant] was admitting in the pretext call an implied admission that the sexual activity in the storeroom was non-consensual. And the defence say that he wasn't making any such admission. No direct allegation was put to him in that phone call and that when there was a direct allegation in the message sent on 22 December, the [appellant] emphatically denied ever forcing anyone. You should only draw the inference for which the State contends if you are satisfied it's the only inference reasonably available. 37 Subsequently, the trial judge gave the jury the following specific direction about the pretext call:31 You've heard a bit about the pretext call, what's been referred to as the pretext call in this case. By that, I'm referring - I know you know what I'm referring to. It's the telephone call that [the complainant] made to the [appellant] after the events the subject of the charges. That call was recorded. In the evidence, it's exhibit 11. The State say that what you can hear on the recording is [the complainant] confronting the [appellant] over him locking the door, and she said she was uncomfortable and scared. And the prosecution say that [the appellant] responded by saying: I'm so sorry. I'm so sorry. I get it. I get it. The State say that he can be heard then to say: 29 Trial ts 67 (opening address), 239 - 240 (cross-examination of complainant), 440 - 441 (closing submissions). 30 Trial ts 463. 31 Trial ts 487 - 488. -- 15 of 37 -- [2026] WASCA 120 JUDGMENT OF THE COURT Page 16 So sorry to do that. I get it. I'm so sorry. I didn't expect you to take it like that, and I was probably too aggressive or too nervous because I had an issue with work and so forth, you know. Now, why I'm saying the State say that is, ultimately, it's a matter for you what you hear on that telephone call. You will have the call with you in the jury room. But the State say that's what you can hear. Now, the prosecution accept that at no stage does [the appellant] make any clear statement that the sexual activity was non-consensual. However, the State say that this conversation contains an implied admission by [the appellant] that the sexual activity which occurred in the storeroom - that's the subject of counts 1, 2 and 3 - that the sexual activity which occurred in the storeroom was non-consensual. You're able to use any admissions you find made by [the appellant] to support the State's case. However, you cannot use any admissions you find were made by [the appellant] unless you're satisfied not only that they were made, but also, they were truthful and accurate. You should take into account all the circumstances in which any statements were made, to which I have just referred, in assessing the value you give to any admissions. If you find the [appellant] used words such as, 'I'm sorry', and, 'I was probably too aggressive' as implied admissions, it's for you to decide what he meant and what value you put on that evidence in all of the circumstances, and whether that supports the State's case. In doing so, you'll need to bear in mind the defence submissions that there's no discussion of any of the specifics of the allegations in those telephone calls, and any admissions made were not made in relation to any specific charge. For example, I've told you that you need to try each charge separately. There is no admission, for example, that the conduct which constitutes count 1 ever occurred in that phone call, because there was no specific allegation put to him. [The complainant] never mentioned anything about the oral sex the subject of count 2 specifically in the call. Rather, the State say as a general admission that what did occur was without [the complainant's] consent. But the State cannot point to any admission by [the appellant] to a specific act being non-consensual. You will also need to bear in mind that when a specific allegation was put to [the appellant] by [the complainant] in the message sent to her [sic] on 22 December, namely, that he forced her to have sex with him, he responded by saying, 'I never forced anyone and never will', and the defence say that's significant when you assess the telephone call. And you will find that message in the messages constituting exhibit 12. You will also need to appreciate that any admissions made in the telephone call - if you find they were made - apply to counts 1, 2 and 3, -- 16 of 37 -- [2026] WASCA 120 JUDGMENT OF THE COURT Page 17 because it seems, on the State case, the conversation was about what occurred in the storeroom. (emphasis added) 38 The trial judge later summarised the prosecution and defence submissions in relation to the pretext call and text messages.32 Conviction ground 1: direction about the pretext call 39 Ground 1 of the appellant's conviction appeal contends: A miscarriage of justice was occasioned by the Learned Trial Judge failing to adequately direct the jury on how they could and could not use the implied admissions in the pre-text [sic] call. Implied admissions 40 The ground of appeal refers to 'implied admissions', reflecting the language used by the trial judge in directing the jury. This label is often applied to two different kinds of evidence from which the existence of a fact may be inferred. 41 The first is an intentional communication which acknowledges a fact adverse to the interests of the person making the communication, although the acknowledgement is not express but is to be inferred from the person's words or conduct. 42 The second is where a person says or does something which is explicable only by the person's consciousness of the existence of the fact. A common example of this second kind of evidence is the telling of a lie which an innocent person would not have told, which may therefore be evidence of an accused's consciousness of guilt.33 Evidence of this kind is a species of circumstantial evidence, from which facts constituting elements of a charged offence may be inferred.34 43 There were elements of both the first and second kinds of evidence in the implied admission allegedly made by the appellant in the pretext call. The State invited the jury to infer that the appellant intentionally acknowledged that non-consensual sexual activity occurred in the storeroom of his restaurant, although he did not expressly say so. The prosecutor also submitted that the appellant's responses were inconsistent with a belief that only consensual activity occurred in the storeroom and so supported the complainant's account. 32 Trial ts 506 - 507, 513, 515. 33 Edwards v The Queen [1993] HCA 63; (1993) 178 CLR 193, 209. 34 See the discussion in Dodd v The State of Western Australia [2014] WASCA 13; (2014) 238 A Crim R 72 [99] - [104] (Buss JA, Newnes JA agreeing). -- 17 of 37 -- [2026] WASCA 120 JUDGMENT OF THE COURT Page 18 Directions about implied admissions 44 Special directions will commonly be required where implied admissions are relied on by the prosecution. However, given the very broad possible range of post-offence conduct which may be relied on as circumstantial evidence of guilt, a special direction is not universally required and there is no single form of direction that is appropriate.35 45 As this court noted in Evans v The State of Western Australia,36 the obligation of a judge to give directions about the use of evidence of post-offence conduct, such as lies, is an incident of the judge's duty to ensure a fair trial. The rationale for giving an Edwards-type direction is the avoidance of a perceptible risk of a miscarriage of justice if the jury were to misuse the lie, or other post-offence conduct, so as to make a finding of guilt by impermissible reasoning. 46 The risk of impermissible reasoning which may arise where evidence of post-offence conduct, such as a lie or flight, is relied on to infer guilt, is that the jury may leap from a finding that an accused lied, or fled the jurisdiction, to a conclusion that he must therefore be guilty of the offence, without considering other possible explanations for his conduct. 47 Whether a direction is required, and the appropriate form of direction, will turn on the existence and nature of the perceptible risk that a jury might adopt impermissible reasoning. A special direction may not be required in all cases, and will always need to be tailored to the circumstances of the particular case. 48 In the present case, the appellant submits that the trial judge ought to have given a direction with elements typically found where lies are relied on as evidence of guilt.37 So the appellant submits that the trial judge ought to have directed the jury along the following lines:38 To be capable of supporting the State case first of all the alleged implied admissions must have been deliberate. Saying something that is not true or not saying something by inadvertence can never be evidence of guilt. Secondly the alleged implied admissions must be explicable only on the basis that the truth would implicate the accused with the offence with which he has been charged. Thirdly the motive for the words spoken or not spoken must have been due to a realisation of guilt and a fear of the truth. The jury should have been told that they had to have been satisfied 35 See the recent discussion in Moiler v The State of Western Australia [2026] WASCA 63 [231] - [234]. 36 Evans v The State of Western Australia [2020] WASCA 26; (2020) 55 WAR 310 [98]. 37 See, for example, Dodd [98]. 38 Appellant's submissions [39]. -- 18 of 37 -- [2026] WASCA 120 JUDGMENT OF THE COURT Page 19 of all of these things before they could use the implied admissions as evidence of guilt. 49 Many of the elements of this kind of direction, ordinarily encompassed in an Edwards-type direction where lies are relied on as evidence of guilt, are inapposite to the present case. The prosecution did not allege that the appellant's statements in the pretext call were untrue. To the contrary, the State contended that the statements truthfully acknowledged that non-consensual sexual activity occurred in the storeroom. In that context, it would make no sense for the trial judge to direct the jury that they must be satisfied that the appellant said something that was not true, that the statement was explicable on the basis that the truth would implicate the appellant in a charged offence, or that the statement was made due to a fear of the truth. 50 Somewhat inconsistently, the appellant also seeks to characterise the present case as one involving silence of an accused as an alleged admission of guilt. Counsel for the appellant referred to the Victorian decision in R v MMJ,39 where the accused was charged with various sexual offences against his stepdaughter over a six-year period. The accused's wife had approached him one day and asked if he was or had been sexually involved with his stepdaughter. The accused did not respond to that allegation, and the prosecution relied on this as an implied admission. In that case Ashley JA (Buchanan JA agreeing) identified various matters on which the jury should have been directed.40 51 However, the present case is not properly characterised as one of implied admission by silence analogous to the circumstances in cases such as MMJ. The appellant in the present case did not fail to give any response to what the complainant said to him in the pretext call. He was anything but silent. None of the directions proposed by Ashley JA in MMJ would have been apposite in the present case. 52 The difficulty with the appellant's submissions discussed above is that they advocate for the application of directions developed in a very different context to the present case. The risk of impermissible reasoning in this case 53 The appellant's written and oral submissions in the present case identified two risks of impermissible reasoning which the jury might 39 R v MMJ [2006] VSCA 226; (2006) 166 A Crim R 501. Counsel also referred to the decision of Corboy J giving an evidentiary ruling in The State of Western Australia v McBride [2015] WASC 275, however that case involved a ruling on the admissibility of evidence rather than the directions which ought to be given. 40 MMJ [85] - [92]. -- 19 of 37 -- [2026] WASCA 120 JUDGMENT OF THE COURT Page 20 have adopted and which a direction was required to address. The first was that the jury may leap from the appellant apologising to the complainant without considering what he was apologising for, having regard to the ambiguity in the conversation. The second is that the jury may fail to appreciate alternative explanations for an implied admission, such as embarrassment, a desire to appease the complainant, surprise, panic or a desire to escape an unjust accusation. 54 As to the first of these matters, the jury could not fail to appreciate the ambiguity inherent in the conversation between the appellant and the complainant in the pretext call. The prosecutor expressly acknowledged that the appellant did not make any clear statement that the complainant did not consent to sexual activity.41 The complainant accepted that she never said to the appellant that he raped her or did sexual things to her without her consent.42 The central issue at trial about the pretext call was whether it contained any implicit admission of non-consensual sexual activity at all. This turned on whether the appellant's apology was for non-consensual sexual conduct or something else as contended by the appellant's trial counsel. 55 In that context, the trial judge directed the jury that they could only infer that the appellant impliedly admitted that the sexual activity in the storeroom was non-consensual if that was the only inference reasonably available.43 His Honour told the jury that the State accepted that the appellant never made any clear statement that sexual activity was non- consensual. He also told the jury that they had to take into account that there was no discussion of any of the specifics of the allegation, and that the allegation was denied when clearly put to the appellant in the text message. His Honour told the jury that there was no admission about the conduct the subject of each charge because no specific allegation was put to the appellant. The trial judge directed the jury that any admissions they found were made could only relate to the conduct charged in counts 1 - 3, which were the counts that occurred in the storeroom.44 56 Otherwise, the trial judge's direction set out at [37] above appropriately identified the statements said by the State to constitute the implied admission. The direction made it clear that it was for the jury, as the tribunal of fact, to find what the appellant meant by the words used in the pretext call, whether any admissions were made and what weight should be given to them. The trial judge also directed the jury that they 41 Trial ts 62. 42 Trial ts 242. 43 Trial ts 463. 44 Trial ts 487 - 488. -- 20 of 37 -- [2026] WASCA 120 JUDGMENT OF THE COURT Page 21 could only use an admission if they found both that it was made and that it was truthful and accurate. 57 In the context of these directions, and the evidence and submissions at trial, there was no realistic possibility that the jury might impermissibly reason that the appellant must be guilty merely because he apologised. The jury must have appreciated that the significance of the apology depended on what the appellant was apologising for. The jury would also have appreciated that this issue was to be assessed in light of the ambiguous language and lack of specific allegation in the pretext call, and the appellant's denial when a clear allegation was later made by text message. 58 If the jury were satisfied that the appellant had implicitly admitted that non-consensual sexual activity occurred in the storeroom, there was no plausible innocent explanation for why the appellant might have made that admission. An admission of that kind could not sensibly be explained as an attempt to avoid embarrassment or appease the complainant. The appellant would be admitting rather than escaping an unjust accusation. 59 As was noted in Moiler,45 if there are no reasonably possible alternative explanations, then an Edwards-type direction suggesting alternative explanations that are entirely implausible could only emphasise the compelling incriminating nature of the post-offence conduct, if the jury accepted it had occurred. In the present case, a direction attempting to identify innocent reasons why the appellant might have admitted that non-consensual sexual activity occurred in the storeroom would have had this effect. 60 The trial judge's direction also made it clear to the jury that they could not convict the appellant of any count on the indictment solely based on what he said in the pretext call. This was both because the pretext call discussion did not deal with specific allegations, and because the trial judge directed the jury that they could not convict the appellant of any count on the indictment unless they were satisfied, beyond reasonable doubt, as to the truthfulness, accuracy and reliability of the complainant's evidence on that count.46 The jury did not require any special direction as to their assessment of whether what was said in the pretext call was consistent with the complainant's account as contended 45 Moiler [238]. 46 Trial ts 458. -- 21 of 37 -- [2026] WASCA 120 JUDGMENT OF THE COURT Page 22 by the prosecutor, or detracted from that account as contended by the appellant's trial counsel. 61 In all the circumstances, the direction which the trial judge gave to the jury was sufficient to avoid any perceptible risk of a miscarriage of justice arising from the jury misusing evidence of the pretext call to make a finding of guilt by impermissible reasoning. We are reinforced in that view by the fact that the appellant's very competent and experienced trial counsel, who was immersed in the atmosphere of the trial and heard the direction as it was given, did not suggest that anything more was required for that purpose. 62 While we would grant leave to appeal on ground 1 of the conviction appeal, in our view the ground is not established. Conviction ground 2: prosecutor's submissions 63 Ground 2 of the appellant's conviction appeal contends: A miscarriage of justice was occasioned by the Learned Prosecutor inviting the jury to find that the accused made an implied admission to counts 1 - 3 based on what he failed to say in the pre-text [sic] call. 64 In oral submissions, the appellant's appeal counsel narrowed and refined this ground, fixing on the italicised parts of the following passage of the prosecutor's closing address to the jury quoted at [29] above: But he's told she was scared, his response: I'm so sorry. I'm so sorry. I get it. I get it. Not 'What do you mean you were scared? What are you talking about? You put your hands into my pants. You're the one that started fondling my penis, you unbuckled my belt. You pulled my pants down. You're the one that initiated sexual activity. You pulled your stuff down, you jumped on the sofa, you opened your legs. What are you talking about? You're kissing me'. Rather, he immediately apologised and says he gets it. (emphasis added) 65 The appellant's appeal counsel submitted, in effect, that the prosecutor acted improperly in drawing specific examples to illustrate what the appellant might have said in the pretext call from questions the appellant's trial counsel posed to the complainant. This was said to be improper because the complainant had not accepted the propositions when they were put to her, and the appellant had not given evidence or a recorded interview to police. The appellant's appeal counsel therefore contended that there was no evidence before the jury that the events in -- 22 of 37 -- [2026] WASCA 120 JUDGMENT OF THE COURT Page 23 the storeroom occurred in this fashion or that the appellant said this was the case. The appellant's appeal counsel contended that there was a risk that the jury would take the prosecutor's submission as inviting them to treat the appellant's trial counsel's questions as evidence of the appellant's account. If the jury did so, they might regard the pretext call as plainly inconsistent with that account and therefore give undue weight to evidence of the pretext call. The appellant's appeal counsel submitted that the prejudice arising from these comments was incapable of being cured by direction and that, in any event, no curative direction was given. 66 We do not accept that there was anything improper in the prosecutor's approach. The prosecutor was not contending that the appellant had said or done the things referred to in the italicised passage or that there was evidence that he had done so. The prosecutor was not inviting the jury to make a finding not supported by the evidence. The prosecutor was rather hypothesising about what a person who had been engaged in consensual sexual activity might be expected to say in response to what the complainant said in the pretext call. The prosecutor did so in a measured way that did not involve sarcasm, mockery and derision or go beyond the legitimate bounds of advocacy, appropriate to a prosecutor's role as a 'minister of justice'. 67 The fact that the prosecutor gave colour to his point by illustrating what an innocent person might be expected to say drawing from what the appellant's trial counsel had put to the complainant was not improper. As Wright J (Cox & Crawford JJ agreeing) observed in Lyons & Lyons v The Queen:47 Crown counsel is not obliged to pander to the idiosyncratic or hypercritical sensibilities of defence counsel. He is not required to reduce his rhetoric to dull and lifeless factual propositions. He should of course avoid hyperbole and not seek to sway the jury by trickery, prejudice or emotion, but he should not be forced to weigh every word he utters for the potential disapproval it may attract in the Court of Appeal. Our system of criminal justice is adversarial. Crown counsel is an advocate, albeit that his role is special in that he should not fight for a conviction at all costs. This passage was approved by Martin CJ (Beech JA & Hall J agreeing) in MAM v The State of Western Australia,48 in which the circumstances in which a prosecutor's address to the jury might give rise to a miscarriage of justice were discussed.49 The conduct of the prosecutor 47 Lyons & Lyons v The Queen (1992) 64 A Crim R 101, 104. 48 MAM v The State of Western Australia [2018] WASCA 35 [106]. 49 MAM [101] - [108], [125]. -- 23 of 37 -- [2026] WASCA 120 JUDGMENT OF THE COURT Page 24 in the present case stands in marked contrast to the intemperate language which attracted the court's admonition in MAM. 68 Nothing that the prosecutor said to the jury suggested that questions posed by the appellant's trial counsel were evidence on which the jury could act. The jury had been directed by the trial judge at the outset of the trial that what counsel said in their opening and closing addresses was not evidence.50 The jury had also been directed at that time, in standard terms, that questions which are asked of witnesses are not evidence.51 The trial judge elaborated on this point in his Honour's charge to the jury at the end of the trial:52 I said to you at the start of the trial the questions and statements of the lawyers - sorry, the questions and statements of the lawyers are not evidence. That's still the case. I also said, obviously, you need to bear in mind the question in order to understand the answer, put the answer in context. But it is the answer to the question which is the evidence and not the question. Just by way of an example. At one stage [the appellant's trial counsel] suggested to [the complainant] that she didn't tell [the prosecutor] when she spoke to him that [the appellant] grabbed her hands before putting them on his penis. And [the complainant] said she told [the prosecutor] about [the appellant] grabbing her hands. Now, there's no evidence to the contrary and that's therefore the evidence not [the appellant's trial counsel's] proposition to [the complainant] that she didn't tell [the prosecutor] about [the appellant] grabbing her hands. As I said, the question is not the evidence, it's the answer which is the evidence. 69 In light of those directions, given both before and after the prosecutor's closing address, there was no realistic possibility that the prosecutor's submissions might have misled the jury into thinking that questions asked by the appellant's trial counsel were evidence in the trial. His Honour was not required to go further, as submitted by the appellant's appeal counsel, and direct the jury to disregard the prosecutor's comments. The directions given by the trial judge were sufficient to avoid any perceptible risk of a miscarriage of justice. 70 The scenario put to the complainant in cross-examination included that, as they were kissing in the storeroom, the complainant put her hands in the appellant's pants and fondled his penis while they were standing up. It was put to the complainant that she pulled the appellant's pants and underpants down.53 It was also put to the complainant that she pulled her own pants and underpants down in the storeroom. It was put that 50 Trial ts 44. 51 Trial ts 46. 52 Trial ts 462. 53 Trial ts 186 - 187. -- 24 of 37 -- [2026] WASCA 120 JUDGMENT OF THE COURT Page 25 the complainant opened her legs facing the appellant and, when he was unable to penetrate her vagina, she turned around and leant forward to enable the appellant to penetrate her.54 It was put to the complainant that she and the appellant were sitting on the couch in the function room kissing while the appellant rubbed the complainant's breasts and vagina on the outside of her clothing.55 71 Apart from accepting that there was kissing preceding the charged sexual acts in the storeroom, the complainant denied that any of the alleged events occurred. As such, there was no evidence that the events put to the complainant by the appellant's trial counsel occurred. The prosecutor did not suggest otherwise. However, the propositions had been put to the complainant by the appellant's trial counsel. It was open to the prosecutor to submit that, not only was the complainant's evidence inconsistent with the events described by the appellant's counsel having occurred, but the appellant's own post-offence conduct was inconsistent with events having transpired in that manner. That approach did not involve any misconduct by the prosecutor or give rise to any perceptible risk of a miscarriage of justice. 72 It is also relevant to note that the appellant's very competent and experienced trial counsel did not take any issue with this aspect of the prosecutor's closing address. That reinforces our conclusion that, in the context of the trial, the way the prosecutor made this submission did not operate to deny the appellant his right to a fair trial. 73 For the above reasons, ground 2 of the conviction appeal is not even arguably established. Leave to appeal on that ground should be refused. Appeal against sentence 74 The appellant received the following sentences for the sexual penetration counts of which he was convicted: Count 2: 4 years' immediate imprisonment. Count 3: 5 years' immediate imprisonment. Count 4: 2 years 6 months' immediate imprisonment (reduced from 4 years' immediate imprisonment for totality). 75 The trial judge ordered that the sentence for count 3 would be the head sentence and that the sentence for count 4, reduced for totality, 54 Trial ts 218 - 219. 55 Trial ts 233 - 234. -- 25 of 37 -- [2026] WASCA 120 JUDGMENT OF THE COURT Page 26 would be served cumulatively upon the head sentence. The sentence for count 2 was to be served concurrently, so that the total effective sentence was 7 years 6 months' imprisonment. The appellant was made eligible for parole. The sentences were backdated to 24 July 2024 to take account of time spent in custody on remand. 76 The appellant also received fines for offences charged in the same indictment of indecent assaults of two other female employees at the restaurant. One count involved the appellant using a pan to touch the buttocks of a 31-year-old employee without her consent. The other involved the appellant touching the thigh of a 21-year-old employee on her first day working at the restaurant without her consent. The appellant was fined $4,000 for each of these offences (a total of $8,000). 77 The appellant appeals against his sentences on the sole ground that the total effective sentence of 7 years 6 months' imprisonment infringed the first limb of the totality principle. There is no complaint about any of the individual sentences, although the appellant's appeal counsel contended that the sentence imposed for count 3 was high, stern, and at the 'upper end' of the sentencing range. Circumstances of offending on counts 2 - 4 78 The trial judge made the following findings as to the circumstances of the offending charged in counts 2 - 4 of the indictment, which were broadly consistent with the complainant's evidence:56 At some time close to 5.30 pm, you told [the complainant] that you were going to show her around the restaurant and she followed you. You took her into one of the store rooms, opened the door and when the two of you entered, you locked the door behind you. You asked her if she liked you, to which she responded that she did not know, she barely knew you. You then put another $50 note in her bra and kissed her. You then unbuckled your belt and pulled down your pants and underwear, so that your erect penis was exposed. You then sat on a chair and told her to come over. You then caused her to kneel down before pressing her head towards your penis so she performed fellatio on you. During the course of the fellatio she tried to pull her head up but you still kept pressing her head down firmly and forcefully. She felt like [she] couldn't breathe and this caused discomfort to her. She did not consent to you penetrating her mouth with your penis and the fact that you had to push her head and then hold her head down when she tried to pull it 56 Sentencing ts 596 - 598. -- 26 of 37 -- [2026] WASCA 120 JUDGMENT OF THE COURT Page 27 should have made it obvious to you that she did not consent. That's the offence comprising count [2] on the indictment. After the fellatio went on for a short time [the complainant] stood up after hearing a noise and stepped back. You then turned her around by putting your hand on her hips and either before or after turning her around pulled down her pants and her underwear before inserting your penis into her vagina. During the course of your penetration of her vagina with your penis she told you, 'No, no, no'. You ignored her telling you 'No'. At one point she told you that she needed a condom in order to buy some time to get away from you and you responded by saying, 'Oh, no, I know what I'm doing'. I also accept that she told you 'No' on several occasions up to three or four times. I accept [the complainant's] evidence that you continued to insert your penis into her vagina after this point. And at another point while you were doing so she said, 'No, I will get pregnant'. I also accept her evidence that she did not consent to you penetrating her vagina with your penis. And that is the offending for count [3]. Your telephone rang and you stopped penetrating [the complainant]. She pulled her pants up, cleaned herself up, and left. In relation to count [4] [the complainant] was slicing bread in the kitchen and you asked her to come over, so that you could show her around again. She responded by saying, 'No, I'm busy'. But after you asked her again she followed you into a function room where music was playing and you shut the door. I accept that by this stage you were intoxicated. While in the function room you wanted [the complainant] to dance with you and she told you that she did not know how to dance. While you were trying to dance with [the complainant] you put another $50 note into her pants underneath her underwear near her vagina, so the $50 note was touching her vagina and your hand was near her vagina. She tried to push you away but you pushed her back still with your hand in her underwear to a couch, so that she ended up on the couch. While she was on the couch you inserted two fingers into her vagina. She tried to push you away and said, 'No, stop', however, was unable to get you off. She was on her back facing you at this stage. She told you, 'No, stop', twice but you did not respond. You continued inserting your fingers into her vagina for approximately a minute before stopping. She stood up and said she needed to go back to work and left. I accept that she did not consent to you penetrating her vagina with your fingers. -- 27 of 37 -- [2026] WASCA 120 JUDGMENT OF THE COURT Page 28 Personal circumstances 79 The trial judge made the following findings as to the appellant's personal circumstances.57 80 The appellant was 51 years old at the time of sentence and 47 years old at the date of offending. He was born in Italy. The appellant left school in early high school and obtained a vocational diploma in hospitality in Italy. He moved to Australia in 1997 and worked in various restaurants including, in more recent years, his own successful restaurant business. 81 The appellant's father died 3 years prior to sentencing. The appellant has a good relationship with his mother. The appellant was single at the time of sentencing and has two children who were aged 21 and 14 years at the time of sentencing. The appellant separated from his children's mother in 2014. 82 The appellant received various awards during his time in the hospitality industry. He had been a supporter of various charities. The appellant produced character references which spoke to his contributions to the community. 83 The appellant had no issue with alcohol and drugs. He was in good physical and mental health. 84 The appellant had a criminal record which the sentencing judge described as 'not particularly extensive'. The most serious offence was a common assault for which the appellant received a spent conviction in 2009. The appellant had not previously been imprisoned. Trial judge's approach on counts 2 - 4 85 The trial judge identified the following aggravating features of the appellant's offending against the complainant:58 1. The offending involved a significant breach of trust in the context of a significant power imbalance in the relationship between the complainant and the appellant. The complainant was a young employee of the appellant, for whom English was a second language and who, for cultural reasons, felt unable to resist what the appellant was doing. The offending occurred on the second 57 Sentencing ts 602 - 604. 58 Sentencing ts 600 - 601. -- 28 of 37 -- [2026] WASCA 120 JUDGMENT OF THE COURT Page 29 day of the complainant working her first job. These factors made the complainant vulnerable to the appellant's offending. 2. The persistence of the appellant's offending was significant in relation to count 4. By that stage, the complainant had made it quite clear, during the offending in the storeroom, that she did not want to engage sexually with the appellant. Notwithstanding that, by then, he had clear knowledge that the complainant was not consenting, the appellant offended again sometime later by taking her into another room. 3. The offending was aggravated by the humiliation and degradation involved in the appellant putting $50 notes into intimate areas of the complainant's body. That conduct was capable of creating the perception that the appellant was paying the complainant for sexual services. 4. In relation to counts 3 and 4, the appellant persisted in the offending after the complainant told him, 'no', more than once on each occasion. When the complainant tried to lift her head up during the offending charged in count 2, clearly conveying her lack of consent, the appellant pushed her back down. There was an element of force involved in each of counts 2 and 3. While no physical or verbal threats were involved, the appellant did not have to make threats given the complainant's vulnerability to his offending. 5. There was a significant age disparity between the appellant and complainant which contributed to the power imbalance between them. 86 The trial judge said that, while the appellant's criminal record was for a different type of offending, it meant that his Honour could not treat the appellant as a person of prior good character. His Honour noted that the references indicated that there were significant positive aspects to the appellant's character which he took into account. The trial judge did not find the appellant to be genuinely remorseful.59 87 The trial judge took into account the appellant's late pleas of guilty, for which he allowed a 10% reduction under s 9AA of the Sentencing Act 59 Sentencing ts 604. -- 29 of 37 -- [2026] WASCA 120 JUDGMENT OF THE COURT Page 30 1995 (WA), to the indecent assault offences committed against the other two complainants.60 88 The trial judge found that there was a moderate need for personal deterrence, particularly given the persistence of the appellant's offending between counts 3 and 4. The common feature of all of the offending was that the appellant took advantage of the power imbalance between him and young women in his employment. The need for personal deterrence was reduced to some extent by the shame which the appellant felt for the impact of his actions on his children.61 89 The trial judge also recognised the significance of general deterrence as a sentencing consideration, observing:62 Vulnerable people - in this case, females in your employment - need to be protected from those who would prey on them and take advantage of that vulnerability. Employers owe a duty to their employees not to take advantage of the vulnerability caused by the disparity and the power relationship between them. In your case, you abused that power disparity. A message needs to be sent; this type of conduct will not be accepted and so the sentence I impose must reflect the need to deter others from offending in this way. 90 The trial judge then imposed the sentences noted at [74] - [76] above. General principles 91 McLure JA (Steytler P & Miller JA agreeing) summarised the totality principle in Roffey v The State of Western Australia:63 The legal principles relevant to the disposition of this appeal are not in dispute. An appellate court is not entitled to intervene merely because it would have exercised the sentencing discretion in a manner different than the sentencing judge. It can only intervene if the sentencing judge has made an express or implied material error of fact or law. The appellant relies on the totality principle which comprises two limbs. The first limb is that the total effective sentence must bear a proper relationship to the overall criminality involved in all the offences, viewed in their entirety and having regard to the circumstances of the case, including those referable to the offender personally. 60 Sentencing ts 604. 61 Sentencing ts 605 - 606. 62 While the trial judge introduced the quoted remarks with a reference to personal deterrence, this was plainly a verbal slip where the context made it plain that the reference was to general deterrence. 63 Roffey v The State of Western Australia [2007] WASCA 246 [23] - [26]. -- 30 of 37 -- [2026] WASCA 120 JUDGMENT OF THE COURT Page 31 The second limb is that the court should not impose a 'crushing' sentence. The word crushing in this context connotes the destruction of any reasonable expectation of a useful life after release. An aggregate sentence may be inappropriately long under the first limb even if it cannot be described as crushing. The practical effect of the totality principle is ordinarily to arrive at an aggregate sentence that is less than that which would be arrived at by simply adding up all the terms appropriate for the individual offences. A rationale for the totality principle is that there is assumed rehabilitation and reduced demand for retribution after the initial sentences have been served. Where the principle of totality comes into effect, it is of little importance how the ultimate aggregate is made up. (citations omitted) 92 The following general principles are also well established:64 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. Thus, an appellate court cannot substitute its own opinion for that of the sentencing court merely because the appellate court would have exercised a sentencing discretion differently. 2. The range of sentences customarily imposed for a crime does not establish the range of a sound exercise of the sentencing discretion. Sentences customarily imposed in comparable cases provide a yardstick or reference point for ensuring broad consistency in sentencing, bearing in mind the scope for significant variations in relevant sentencing factors, and that there is no single correct sentence. What is important is the unifying principles which sentences imposed in comparable cases reveal and reflect. 3. When this court dismisses an appeal against sentence and when it resentences on a successful appeal, its decision does not fix the upper or lower limit of the range. 4. The real question is whether the total effective sentence imposed on the offender is unreasonable or plainly unjust. 64 See, for example, Kabambi v The State of Western Australia [2019] WASCA 44 [21]. -- 31 of 37 -- [2026] WASCA 120 JUDGMENT OF THE COURT Page 32 93 For consistency purposes, it is necessary to consider any broadly comparable cases when evaluating whether a total effective sentence infringes the first limb of the totality principle. It must, however, be recognised that, when examining the total effective sentences for particular kinds of offending, the exercise of comparison may be difficult and the usefulness of the broadly comparable cases may be limited. While providing broad guidance, there will often be significant differences in the circumstances of the offending and the offenders. For example, there will often be a different mix of offences, and number of offences and victims, rendering the comparison of limited utility.65 Disposition 94 The present case represents a serious example of sexual offending. The offending is aggravated by the fact that the complainant was a young woman working the second shift of her first job and the appellant was her much older employer. The fact that the complainant was the appellant's employee significantly increased the seriousness of his offending. As this court recognised in Tham Shengen v The State of Western Australia:66 There is an inherent power imbalance between an employer and an employee. An employee is, ordinarily, particularly vulnerable as regards his or her employer. By virtue of the power imbalance that arises in an employment relationship, an employee will often feel compelled to accept, and not question or complain about, conduct that is unlawful and would not be tolerated outside of an employment relationship. A person in the position of an employee who is offended against by his or her employer will be acutely aware that any complaint may have adverse consequences for the employee. The employee may lose his or her job; were the employee to resign the employer might withhold the sort of reference to which the employee is otherwise entitled; other adverse consequences may result for the employee notwithstanding that it is the employee who has been wronged. The obvious situational disadvantage and potential financial dependence to which an employee is subject may embolden an employer to offend on the basis that he or she considers that the employment relationship allows him or her to act with impunity. The exploitation of a power imbalance between employer and employee, to commit an offence for the employer's sexual gratification, involves a particularly serious breach of trust that significantly increases the seriousness of any sexual offending. 95 The complainant's age, cultural background and the fact she spoke English as a second language increased her vulnerability to the 65 See Tham Shengen v The State of Western Australia [2025] WASCA 140 [52] and cases there cited. 66 Tham Shengen [69] - [70]. -- 32 of 37 -- [2026] WASCA 120 JUDGMENT OF THE COURT Page 33 appellant's offending. The appellant took advantage of that vulnerability. While the offending all occurred on a single day, the appellant persisted in the face of the complainant's protestations indicating that she was not consenting. The appellant used physical force to sexually penetrate the complainant against her will. The offending included unprotected penile penetration of the complainant's vagina which continued despite the complainant telling the appellant he needed to use a condom. 96 The trial judge also correctly recognised that the offending was aggravated by the appellant's demeaning conduct in placing money in the complainant's clothing, treating her as an object which could be purchased and used as he wanted. 97 The only significant mitigating factor was the appellant's cooperation at trial by admitting the fact of two of the sexual penetrations charged in counts 2 and 3. However, the saving of time and resources in conducting the trial, and the amelioration of the impact of the trial on the complainant, was limited as she still needed to give evidence of the circumstances of all of the offences which were contested. The appellant did not have the mitigation of a plea of guilty, remorse, acceptance of responsibility for the offending or youth. While the appellant had made positive contributions to the community, his prior criminal record meant that he was not to be sentenced as a person of prior good character. 98 Personal and general deterrence were significant sentencing considerations in this case. The fact that the appellant offended in a sexual manner against three employees, albeit that the offending against two did not involve sexual penetration, indicates a need for personal deterrence. The trial judge correctly recognised the importance of the sentences imposed in this case acting as a deterrent to other employers who may wish to take advantage of vulnerable employees by sexually offending against them. 99 In comparing the overall criminality of the appellant's offending with other cases, it is appropriate to focus on the offending against the complainant on 19 December 2020. The indecent assault offences against the other complainants were much less serious and were dealt with by the imposition of fines. The offending on 19 December 2020 accounts for the bulk of the criminality involved in the appellant's offending. 100 The appellant refers to four previous decisions of this court in contending that the total effective sentence imposed in the present case was unreasonable or plainly unjust. -- 33 of 37 -- [2026] WASCA 120 JUDGMENT OF THE COURT Page 34 101 The first case, Alalyani v The State of Western Australia,67 is not comparable to the present case. That involved a single count of penile sexual penetration of the victim's vagina without consent while she was asleep. The heavily intoxicated offender met the victim at a party. The offender, who was 25 years old at the time of offending, was convicted after trial. A sentence of 4 years' imprisonment for the single offence was upheld on appeal. This case is of limited utility as it did not involve multiple offences, and the offending was of a very different character to the present case. 102 The second case referred to by the appellant is The State of Western Australia v Bascunan Cabrera.68 The offender, an iridologist and naturopath, was convicted after trial of five counts of sexual penetration without consent, and one count of indecent assault. The offending was against five different patients. The sexual penetration offences all involved digital‑vaginal penetration under the guise of treatment. On a State appeal, this court resentenced the offender to a total effective sentence of 7 years and 3 months' imprisonment. The individual sexual penetration offences in Bascunan Cabrera were less serious than in the present case, and did not involve the use of force or overbearing the will of an employee. The similar total effective sentence to the present case imposed in Bascunan Cabrera is explicable by the different circumstances of the offending against five victims. 103 The third case relied on by the appellant is Costa v The State of Western Australia.69 The 54-year-old offender in that case was convicted of three counts of sexually penetrating the 24-year-old victim without her consent. The three offences all occurred on a single occasion at the offender's winery, where the victim was working in return for meals and board. The offender and victim became intoxicated at a dinner at the offender's house. As the victim drifted in and out of consciousness, the offender performed one act of cunnilingus and two acts of penile-vaginal penetration on the victim, who was not capable of consenting to the acts. The offender experienced chronic depression which contributed to the offending and was assessed as being at low risk of re-offending. The offender was sentenced after trial to a total effective sentence of 6 years' imprisonment. This court refused leave to appeal, which indicates that the court did not regard the submission that the total effective sentence was unreasonable or plainly unjust as reasonably arguable. However, the court also expressed the view that a total effective sentence of 6 years' imprisonment represented a proper 67 Alalyani v The State of Western Australia [2018] WASCA 44. 68 The State of Western Australia v Bascunan Cabrera [2023] WASCA 34. 69 Costa v The State of Western Australia [2019] WASCA 3. -- 34 of 37 -- [2026] WASCA 120 JUDGMENT OF THE COURT Page 35 relationship to the offender's overall criminality.70 That total effective sentence was lower than in the present case, with which Costa bears many similarities. However, Costa did not involve the level of physical coercion involved in the present case, and there were several mitigating factors which are absent in the present case. 104 The fourth case to which the appellant refers is Mehta v The State of Western Australia.71 That case is not comparable to the present. Each of the offenders in that case was convicted after trial of a single count of aggravated sexual penetration without consent. The offending was aggravated by the fact that the offenders were in company with each other. Consequently, the maximum penalty in that case was 20 years' imprisonment, as opposed to the 14-year maximum which applies in the present case. The sentences of 7 years and 7 years 6 months imposed on the offenders in Mehta, which involved the offenders sexually penetrating a very heavily intoxicated woman in a locked room in the back of their restaurant, were for a more serious offence than was charged in the present case. 105 However, the following observations made by the court in Mehta are pertinent to the present case:72 There is no tariff for offences of aggravated sexual penetration without consent, just as there is no tariff for sexual offences generally. As Steytler P observed in The State of Western Australia v Akizuki,73 the circumstances of sexual offending, and of sexual offenders, are almost infinitely variable, such that the sentence imposed in one case can provide only limited guidance in other cases. To this we would add, as Quinlan CJ said in Musgrave v The State of Western Australia,74 that the impacts of the violation of human dignity inherent in sexual offences on each individual victim are as many and varied as the individual experiences of the victims themselves. The wide variety of offending, offenders and victims in cases of sexual penetration without consent is reflected in the broad range of sentences customarily imposed in previous cases. In that context, this Court (and the Full Court before it) have observed that a single count of penile penetration of the vagina can be expected to result in a term of imprisonment after trial of around 5 or 6 years imprisonment.75 Those observations have been made in the context of 70 Costa [58]. 71 Mehta v The State of Western Australia [2023] WASCA 24; (2023) 305 A Crim R 455. 72 Mehta [175] - [177]. 73 The State of Western Australia v Akizuki [2008] WASCA 267; (2008) 192 A Crim R 373 [68] (Steytler P). 74 Musgrave v The State of Western Australia [2021] WASCA 67; (2021) 289 A Crim R 17 [7] (Quinlan CJ). 75 See R v Clark [2000] WASCA 229 [11] (Wheeler J, Kennedy & Pidgeon JJ agreeing); The State of Western Australia v Richards [2008] WASCA 134; (2008) 37 WAR 229 [49] (Steytler P, Martin CJ, McLure, Buss & -- 35 of 37 -- [2026] WASCA 120 JUDGMENT OF THE COURT Page 36 offences committed without circumstances of aggravation, for which the maximum penalty is 14 years imprisonment. … The previous cases have also emphasised that a sentence outside the range of 6 years imprisonment for a non-aggravated sexual penetration will not necessarily be manifestly excessive or manifestly inadequate.76 (original emphasis) 106 The State refers to the decision of this court in Tham Shengen as a comparable case (although stating that it is not of particular use as a comparator in the present case as it concerns arguably less serious individual instances of offending but in greater number and against multiple victims). There, the offender was convicted of ten offences against five complainants after trial, comprising three counts of digital sexual penetration without consent and seven counts of indecent assault. The offending occurred in the offender's physiotherapy business. Four of the victims were employees who were required to have physiotherapy sessions with the appellant to understand what was involved. While the individual offences in that case may be regarded as less serious than those in the present case, the offender in that case was convicted of a greater number of offences committed over a longer period against five complainants. However, the offender in that case received a longer total effective sentence of 9 years 10 months' imprisonment which was upheld by this court. Taking all sentencing considerations into account, the total effective sentence imposed in Tham Shengen is broadly consistent with that imposed in the present case. 107 The discussion of these cases referred to by the parties illustrates the difficulties in comparing total effective sentences where multiple offences are involved, referred to at [93] above. Those cases do not, in our view, demonstrate the total effective sentence imposed on the appellant in the present case to be unreasonable or plainly unjust. 108 Having regard to the observations quoted from Mehta at [105] above and the serious circumstances of the offending noted at [94] - [96] above, the sentence of 5 years' imprisonment imposed on count 3 may be regarded as a moderate sentence for that offence. Some degree of accumulation of the other sentences was required to reflect the additional criminality involved in that offending, particularly the separate incident which was the subject of count 4. The addition of an Miller JJA agreeing); The State of Western Australia v Hussian [2020] WASCA 186 [119] - [120] (Buss P, Mazza & Beech JJA); Musgrave [110] - [113] (Buss JA). 76 Hussian [120] (Buss P, Mazza & Beech JJA); Thong v The State of Western Australia [2020] WASCA 182 [221] (Buss P, Mazza & Beech JJA). -- 36 of 37 -- [2026] WASCA 120 JUDGMENT OF THE COURT Page 37 extra 2 years 6 months' imprisonment has not been shown to be unreasonable or plainly unjust. 109 To the contrary, in our view the total sentence of 7 years 6 months' imprisonment properly reflected the overall criminality involved in all of the offending on 19 December 2020 having regard to all applicable sentencing principles and the circumstances of the case (including those personal to the appellant). The sole ground of the sentencing appeal is not established. While we would grant leave to appeal, the appeal against sentence must be dismissed. Orders 110 For the above reasons, we make the following orders: CACR 114 of 2024: appeal against conviction 1. Leave to appeal is granted on ground 1. 2. Leave to appeal is refused on ground 2. 3. The appeal is dismissed. CACR 115 of 2024: appeal against sentence 1. Leave to appeal is granted on the sole ground of appeal. 2. The appeal is dismissed. I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia. TI Associate to the Hon Justice Mitchell 28 AUGUST 2026 -- 37 of 37 --