Ibbs v The Queen [1987] HCA 46

High Court of Australia Mason C.J. Wilson, Brennan, Toohey and Gaudron JJ. Ibbs v The Queen [1987] HCA 46

ORDER Application for special leave to appeal granted. Appeal allowed. Order that the order of the Court of Criminal Appeal of Western Australia dated 16 July 1987 be set aside in so far as it refused leave to appeal against sentence and in lieu thereof order that leave to appeal against sentence be granted, the appeal to that Court be allowed, the sentence imposed by Kennedy J. on 22 April 1987 be quashed and in lieu thereof impose a sentence of six months' imprisonment commencing 22 April 1987.

Cur. adv. vult.

The Court delivered the following written judgment:—

Oct. 6 Mason C.J., Wilson, Brennan, Toohey and Gaudron JJ.

After a trial in the Supreme Court of Western Australia before Kennedy J. and a jury, the applicant was convicted of the offence of sexual penetration without consent. That offence is created by s. 324D of the Criminal Code W.A. one of the provisions of Ch. XXXIA of the Criminal Code which was inserted by the Acts Amendment (Sexual Assaults) Act 1985 W.A.. Chapter XXXIA is headed "Sexual Assaults". The Act substantially altered the previous Code provisions relating to sexual offences. The offence of rape has been deleted from the Code, but the conduct which would have constituted rape is now proscribed by s. 324D which reads:

Any person who sexually penetrates another person without the consent of that person is guilty of a crime and is liable to imprisonment for 14 years. The conduct proscribed by s. 324D includes certain conduct which would not have constituted rape. Section 324F gives an extended meaning to the phrase "to sexually penetrate". It is defined to mean —

(a) to penetrate the vagina of any person or the anus of any person with —