Aae v The State of Western Australia - [2024] WASCA 35

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT :   THE COURT OF APPEAL (WA)
CITATION:   AAE -v- THE STATE OF WESTERN AUSTRALIA [2024] WASCA 35
CORAM:   MAZZA JA
MITCHELL JA
HALL JA

HEARD:   17 JANUARY 2024
DELIVERED          :   9 APRIL 2024
FILE NO/S:   CACR 91 of 2022
BETWEEN:   AAE
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent

ON APPEAL FROM:
Jurisdiction              :   DISTRICT COURT OF WESTERN AUSTRALIA
Coram:   PRIOR DCJ
File Number            :   IND 576 of 2022

Catchwords:

Criminal law - Appeal against sentence - Child sexual offences - Sexual penetration and indecent dealing offences - Indecent recording - Possession and distribution of child exploitation material - 52 offences over 11 months - Whether total effective sentence of 17 years 6 months breached totality principle

Legislation:

Criminal Code (WA), s 219(1)(b), s 219(2), s 220, s 320(6), s 329(2), s 329(4), s 329(6), s 329(9)(a), s 329(10)(a), s 552

Sentencing Act 1995 (WA), s 9AA

Result:

Leave to appeal granted
Appeal dismissed

Category: B

Representation:

Counsel:

Appellant	:	Mr S M Davies SC & Mr D Jones
Respondent	:	Mr R Arndt

Solicitors:

Appellant	:	David Jones
Respondent	:	Director of Public Prosecutions (WA)

Case(s) referred to in decision(s):

AIM v The State of Western Australia [2014] WASCA 155
CDL v The State of Western Australia [2022] WASCA 18
Coulter v The State of Western Australia [2019] WASCA 215
Headley v The State of Western Australia [2018] WASCA 37
JTR v The State of Western Australia [2023] WASCA 131
Kabambi v The State of Western Australia [2019] WASCA 44
Lewsam v The State of Western Australia [2016] WASCA 60
LWD v The State of Western Australia [2017] WASCA 174
MHE v The State of Western Australia [2019] WASCA 133
Newton v The State of Western Australia [2023] WASCA 7
OTR v The State of Western Australia [No 2] [2022] WASCA 123
RGT v The State of Western Australia [2017] WASCA 120
Roffey v The State of Western Australia [2007] WASCA 246
SAL v The State of Western Australia [2021] WASCA 192
SCN v The State of Western Australia [2017] WASCA 138
The State of Western Australia v AHD [2021] WASCA 13
The State of Western Australia v BKJ [2018] WASCA 136
The State of Western Australia v McCarthy [2014] WASCA 210; (2014) 246 A Crim R 86
The State of Western Australia v PJW [2015] WASCA 113

JUDGMENT OF THE COURT:

The appellant was convicted on his pleas of guilty of 52 sexual offences. The majority of those offences were committed over an 11‑month period and related to his two children, a girl aged 4 and a boy aged between 7 and 8. The appellant persistently sexually abused the children and visually recorded that abuse. He also committed offences of possessing and distributing child exploitation material.
The appellant was sentenced to a total effective sentence of 17 years 6 months' imprisonment. He has appealed against that total effective sentence on the basis that it is 'manifestly excessive'. That phrase is usually used where the challenge is to a sentence for an individual offence. It is apparent from the appellant's written and oral submissions that the complaint is not about any of the individual sentences imposed but that the total sentence infringed the first limb of the totality principle. That is, it is contended that the total effective sentence was disproportionate to the overall criminality.
Taken as a whole, the appellant's offending was extremely serious. It consisted of persistent sexual offending against the appellant's two very young children. The offending involved a gross breach of his trusted role as a parent. In respect of the younger female child, the offending included multiple offences of sexual penetration and attempted sexual penetration. The appellant recorded the sexual acts. The recordings were discovered by the police after the appellant offered to exchange child exploitation material with an undercover law enforcement officer on a social media application. He was found in possession of a significant quantity of such material.
Whilst the total effective sentence was undoubtedly high, we are unable to conclude that such a sentence was not properly open to the learned sentencing judge in the exercise of his sentencing discretion. It has not been established that the total sentence was disproportionate to the total offending such as to establish implied error. Whilst we would grant leave to appeal, the appeal should be dismissed.

The indictment

The indictment contained 52 counts. The nature of each count, the maximum penalty for the offence and the sentences imposed are set out in the following table:

Count	Date	Offence Type	Maximum Penalty	Sentence Imposed
1	A date unknown between 2 January 2020 and 12 January 2020	Distributed child exploitation material (s 219(2) and s 219(1)(b) of the Criminal Code (WA))	10 years	10 months
2	19 August 2020	Possessed child exploitation material (s 220)	7 years	8 months
3	25 February 2020	Indecently recorded a child who was his lineal relative (s 329(6) and s 329(10)(a))	10 years	8 months
4	15 July 2019	Indecently dealt with a child who was his lineal relative (s 329(4) and s 329(10)(a))	10 years	12 months
5	Indecently recorded a child who was his lineal relative (s 329(6) and s 329(10)(a))	10 years	12 months
6	5 August 2019	Indecently dealt with a child who was his lineal relative (s 329(4) and s 329(10)(a))	10 years	12 months
7	Indecently recorded a child who was his lineal relative (s 329(6) and s 329(10)(a))	10 years	12 months
8	19 August 2019	Indecently dealt with a child who was his lineal relative (s 329(4) and s 329(10)(a))	10 years	2 years
9	Indecently recorded a child who was his lineal relative (s 329(6) and s 329(10)(a))	10 years	12 months
10	3 September 2019	Indecently dealt with a child who was his lineal relative (s 329(4) and s 329(10)(a))	10 years	2 years
11	Sexually penetrated a child who was his lineal relative (s 329(2) and s 329(9)(a))	20 years	5 years
12	Indecently recorded a child who was his lineal relative (s 329(6) and s 329(10)(a))	10 years	12 months

Count	Date	Offence Type	Maximum Penalty	Sentence Imposed
13	26 November 2019	Indecently dealt with a child who was his lineal relative (s 329(4) and s 329(10)(a))	10 years	2 years
14	Sexually penetrated a child who was his lineal relative (s 329(2) and s 329(9)(a))	20 years	4 years
15	Sexually penetrated a child who was his lineal relative (s 329(2) and s 329(9)(a))	20 years	5 years
16	Indecently recorded a child who was his lineal relative (s 329(6) and s 329(10)(a))	10 years	12 months
17	6 December 2019	Indecently dealt with a child who was his lineal relative (s 329(4) and s 329(10)(a))	10 years	16 months
18	Indecently recorded a child who was his lineal relative (s 329(6) and s 329(10)(a))	10 years	12 months
19	9 December 2019	Indecently dealt with a child who was his lineal relative (s 329(4) and s 329(10)(a))	10 years	14 months
20	Sexually penetrated a child who was his lineal relative (s 329(2) and s 329(9)(a))	20 years	5 years (head sentence)
21	Indecently recorded a child who was his lineal relative (s 329(6) and s 329(10)(a))	10 years	12 months
22	10 December 2019	Indecently dealt with a child who was his lineal relative (s 329(4) and s 329(10)(a))	10 years	18 months
23	Sexually penetrated a child who was his lineal relative (s 329(2) and s 329(9)(a))	20 years	3 years
24	Sexually penetrated a child who was his lineal relative (s 329(2) and s 329(9)(a))	20 years	3 years
25	Sexually penetrated a child who was his lineal relative (s 329(2) and s 329(9)(a))	20 years	5 years
26	Indecently recorded a child who was his lineal relative (s 329(6) and s 329(10)(a))	10 years	18 months
27	27 December 2019	Indecently dealt with a child who was his lineal relative (s 329(4) and s 329(10)(a))	10 years	12 months
28	Indecently recorded a child who was his lineal relative (s 329(6) and s 329(10)(a))	10 years	12 months
Count	Date	Offence Type	Maximum Penalty	Sentence Imposed
29	7 January 2020	Indecently dealt with a child who was his lineal relative (s 329(4) and s 329(10)(a))	10 years	2 years
30	Indecently recorded a child who was his lineal relative (s 329(6) and s 329(10)(a))	10 years	12 months
31	5 February 2020	Indecently dealt with a child who was his lineal relative (s 329(4) and s 329(10)(a))	10 years	18 months
32	Indecently recorded a child who was his lineal relative (s 329(6) and s 329(10)(a))	10 years	12 months
33	A date unknown between 18 April 2019 and 26 February 2020	Indecently dealt with a child who was his lineal relative (s 329(4) and s 329(10)(a))	10 years	2 years
34	Indecently recorded a child who was his lineal relative (s 329(6) and s 329(10)(a))	10 years	12 months
35	A date unknown between 18 April 2019 and 26 February 2020	Indecently dealt with a child who was his lineal relative (s 329(4) and s 329(10)(a))	10 years	12 months
36	Indecently recorded a child who was his lineal relative (s 329(6) and s 329(10)(a))	10 years	12 months
37	A date unknown between 18 April 2019 and 26 February 2020	Indecently dealt with a child who was his lineal relative (s 329(4) and s 329(10)(a))	10 years	18 months
38	Indecently recorded a child who was his lineal relative (s 329(6) and s 329(10)(a))	10 years	12 months
39	Indecently dealt with a child who was his lineal relative (s 329(4) and s 329(10)(a))	10 years	14 months
40	Attempted to sexually penetrated a child who was his lineal relative (s 329(2), s 329(9)(a) and s 552)	10 years	2 years 6 months
41	Indecently recorded a child who was his lineal relative (s 329(6) and s 329(10)(a))	10 years	12 months

Count	Date	Offence Type		Maximum Penalty	Sentence Imposed
42	A date unknown between 18 April 2019 and 26 February 2020	Indecently dealt with a child who was his lineal relative (s 329(4) and s 329(10)(a))		10 years	18 months
43	Attempted to sexually penetrate a child who was his lineal relative (s 329(2), s 329(9)(a) and s 552)		10 years	2 years 6 months
44	Indecently recorded a child who was his lineal relative (s 329(6) and s 329(10)(a))		10 years	12 months
45	A date unknown between 18 April 2019 and 26 February 2020	Indecently recorded a child who was his lineal relative (s 329(6) and s 329(10)(a))		10 years	8 months
46	A date unknown between 18 April 2019 and 26 February 2020	Indecently dealt with a child who was his lineal relative (s 329(4) and s 329(10)(a))		10 years	12 months
47	Indecently recorded a child who was his lineal relative (s 329(6) and s 329(10)(a))		10 years	8 months
48	27 November 2019	Indecently dealt with a child who was his lineal relative (s 329(4) and s 329(10)(a))		10 years	18 months
49	Indecently recorded a child who was his lineal relative (s 329(6) and s 329(10)(a))		10 years	12 months
50	13 January 2020	Indecently dealt with a child who was his lineal relative (s 329(4) and s 329(10)(a))		10 years	2 years
51	Indecently recorded a child who was his lineal relative (s 329(6) and s 329(10)(a))		10 years	12 months
52	A date unknown between 7 August 2018 and 26 May 2020	Indecently recorded children under the age of 13 years (s 320(6))		10 years	8 months
Total Effective Sentence – the following sentences were cumulative (all others were concurrent)
Count			Sentence
1			10 months
2			8 months
Count			Sentence
12			12 months
20			5 years (head sentence)
24			3 years
25			5 years
50			2 years
TES			17 years 6 months

The facts of the offending

The facts of the offending were not in dispute.
In 2019 and 2020, the appellant, his wife and two children were residing together in a suburb of Perth. At the relevant time, the appellant's daughter, A, was 4 years old and his son, K, was between 7 and 8 years old.[1]
[1] ts 16.
Between 11 April 2019 and 26 May 2020, the appellant committed 45 sexual offences against A and 4 sexual offences against K. The appellant recorded the offending on photographs or videos, which he retained on electronic devices. Those recordings formed the evidential basis for the charges.[2]
[2] ts 52.
The offences came to light in several stages. Between 3 and 11 January 2020, an undercover special agent from the Department of Homeland Security in the United States of America engaged in communication with the appellant on a social media application. These communications commenced after the undercover agent targeted users associated with an online post relating to child exploitation material. During communications with the special agent, the appellant, who was using a username that did not reflect his true name, wrote comments including:[3]
a.My daughter is 4 she can't get enough of her pussy being rubbed and licked A while!
b.I have a boy whose 8 now since he was 2 I've played with him??Haha
c.U got any pics of your niece? ?Yes I have heaps to share? ?I have everything from 0‑14 boys and girls what's your fancy? Send your pics of your niece and I'll send anything you want?
[3] ts 13.
The appellant sent the special agent an eight second video depicting an adult male ejaculating onto the torso of a naked female child, who appeared to be around 4 years of age. This video constituted category 3 material in the accepted categorisation of child exploitation material.[4]
[4] ts 13.
Two profile pictures associated with the username used by the appellant were captured. These pictures depicted two children, one male and one female, around 4 and 6 years of age respectively, who were naked from the waist down. These pictures constituted category 1 child exploitation material.[5]
[5] ts 13.
On 21 March 2020, the West Australian Police received intelligence regarding the communications. The police conducted inquiries and identified the appellant as the suspected user of the username.[6]
[6] ts 13.
A search warrant was executed at the appellant's home on 21 March 2020. At that time, the appellant was living at the house with his wife and children. Police seized a number of items during the search. These items included several electronic devices that were submitted for analysis. One of those devices was a Microsoft Surface Pro tablet which had been provided to the appellant by his employer.[7]
[7] ts 13 - 14.
An analysis of the tablet located in excess of 300 child exploitation material images in several thumbnail cache databases. The presence of these files indicated that the original material existed on an external storage device which had been connected to the tablet on various dates between 7 August 2019 and 24 May 2020. The images depicted male and female children aged between infancy and approximately 14 years and fell into categories 1, 2, 3, 4 and 6. As these images were located in a cache as thumbnails rather than as downloaded images, there was insufficient evidence to charge the appellant with possessing the material at that time. The images were not stored on that device, rather the device had been used to view them.[8]
[8] ts 14.
Police enquiries continued and further evidence was obtained linking the appellant to the username that was used to communicate with the special agent. As a result, the appellant was arrested on 28 May 2020 and charged with distributing child exploitation material, being the video referred to at [10] (count 1).[9]
[9] ts 13.
Following the execution of the search warrant, the appellant moved out of the house he was living in with his wife and children and went to live with his parents. On Wednesday 19 August 2020, police conducted a search of his parents' house. The police located two data storage devices in the appellant's bedroom. One of those devices was an 8GB USB thumb drive. When analysed, the thumb drive was found to contain the following:[10]
a.Category 1 - 66 images depicting male children aged around 12 years (approximately) involving nudity.
b.Category 2 - 8 images and 1 video depicting mostly male children aged between 10 and 12 years (approximately) engaging in masturbation, or non‑penetrative sexual activity with other children.
c.Category 3 - 6 videos, depicting female children aged between infancy and 8 years (approximately) engaging in non‑penetrative sexual activity with adult males.
d.Category 4 - 12 images and 20 videos depicting female and male children aged between infancy and 14 years (approximately) engaging in penetrative sexual activity with adults and penetrative sexual activity with other children.
The possession of this material is the subject of count 2, an offence of possessing child exploitation material.
[10] ts 14 - 15.
Police also conducted an analysis of a mobile telephone seized during the warrant on 21 March 2021. The police located indecent images of the appellant's 4‑year‑old daughter A. The images were taken on 25 February 2020 and consisted of six photographs focusing on either A's bottom or crotch and her underwear. These indecent recordings of A were the subject of count 3 of the indictment.[11]
[11] ts 15.
During the search on 19 August 2020, at the appellant's parent's home, the police also seized a Toshiba portable hard drive from the appellant's bedroom. An analysis of this device located explicit video recordings of the appellant and his daughter A and the appellant and his son K. The recordings were made at a previous residential address at which the appellant had lived with his wife and children. These recordings had been made on several discrete occasions between 5 August 2019 and 26 February 2020. It is convenient to refer to the offences grouped into incident. Each group includes the sexual acts depicted in the recordings together with an offence of making those recordings.[12]
[12] ts 15 - 16.

Incident 1

A 32‑second video file was located on the hard drive in a deleted format with associated data indicating that it was taken on 15 July 2019. In the recording, the appellant is seen lying on his back. His 4‑year‑old daughter, A, can be seen stroking his exposed erect penis. At one point, the appellant places his own hand on top of A's and continues the stroking motion. This conduct was the subject of a charge of indecent dealing with a lineal or de facto relative under 16 (count 4) and a charge of indecently recording a child who is a lineal or de facto relative (count 5).[13]
[13] ts 16.

Incident 2

Two video files and two images in deleted format with associated data indicating they were taken on 5 August 2019 were located on the hard drive. In these recordings A is seen sitting beside the appellant fondling his exposed erect penis. A is later shown with her pyjamas removed lying back on a couch, with her legs spread for the camera. This conduct is the subject of a charge of indecent dealing with a lineal or de facto relative (count 6) and a charge of indecently recording a child who is a lineal or de facto relative (count 7).[14]
[14] ts 16.

Incident 3

A 16‑second video file and one image in deleted format with associated data indicating they were taken on 19 August 2019 were located on the hard drive. In these recordings, the appellant is seen pressing his erect penis against the exposed buttocks of A as she is leaning face down over a couch. The appellant rubs his penis against A before ejaculating over her back. This conduct is the subject of a charge of indecent dealing with a lineal or de facto relative under the age of 16 (count 8) and a charge of indecently recording a child who is a lineal or de facto relative (count 9).[15]
[15] ts 16.

Incident 4

A 19‑second video file and 15 images in deleted format with associated data indicating they were taken on 3 September 2019 were located on the hard drive. In the recordings, the appellant is seen pressing his erect penis against the exposed buttocks and vagina of A as she is posed in several positions on a bed. The appellant ultimately ejaculates over the stomach of A. The appellant is then seen inserting his penis into A's vagina as she lays on a bed on her back. The appellant then inserts his penis into A's vagina as she kneels on all fours on a bed. This conduct is the subject of a charge of indecent dealing with a lineal or de facto relative under the age of 16 (count 10), sexually penetrating a child who is a lineal relative under the age of 16 (count 11) and indecently recording a child who is a lineal or de facto relative (count 12).[16]
[16] ts 16 - 17.

Incident 5

13 images in deleted format with associated data indicating they were taken on 26 November 2019 were located on the hard drive. In these recordings, the appellant is seen holding a sex toy to A's exposed vagina. A is also shown holding the same sex toy to her own vagina. The appellant is also seen pressing his erect penis against the exposed vagina of A as she is lying on her back on a bed. The appellant ultimately ejaculates over A's stomach and vagina. Some of these recordings depict the appellant penetrating A's vagina with the sex toy and also penetrating A's vagina with his penis. This conduct is the subject of a charge of indecent dealing with a lineal or de facto relative under the age of 16 (count 13), two counts of sexually penetrating a child who is a lineal relative under the age of 16 (counts 14 and 15) and indecently recording a child who is a lineal or de facto relative (count 16).[17]
[17] ts 17.

Incident 6

Six images in deleted format with associated data indicating they were taken on 6 December 2019 were located on the hard drive. In the recordings the appellant is seen pulling A's clothing and underwear aside to expose her vagina. The appellant is also seen spreading A's vagina with his fingers in two of the images. This conduct is the subject of a charge of indecent dealing with a lineal or de facto relative under the age of 16 (count 17) and a charge of indecently recording a child who is a lineal or de facto relative (count 18).[18]
[18] ts 17.

Incident 7

A video of 2 minutes 8 seconds' duration in deleted format with associated data indicating it was taken on 9 December 2019 was located on the hard drive. In the video, the appellant is seen repositioning A several times as he attempts to insert his penis into her vagina and spreads her buttocks and vagina for the camera. The appellant inserts his penis into A's vagina as she kneels on all fours on a bed. A is seen recoiling from the appellant as this occurs. The appellant then repositions A before inserting his penis into her vagina a second time as she kneels on all fours on a bed. Again, A is seen recoiling away from the appellant as this occurs. The video concludes with the appellant ejaculating over the back and buttocks of A. This conduct is the subject of a charge of indecent dealing with a lineal or de facto relative under the age of 16 (count 19), a charge of sexually penetrating a child who is a lineal relative under the age of 16 (count 20) and a charge of indecently recording a child who is a lineal or de facto relative (count 21).[19]
[19] ts 17 - 18.

Incident 8

A video of 4 minutes 45 seconds' duration in deleted format with associated data indicating it was taken on 10 December 2019 was located on the hard drive. In the video, the appellant is seen repositioning A several times while he masturbates, rubs her vagina and anus, and spreads her vagina with his fingers. The video concludes with the appellant ejaculating over A's vagina. At around 35 seconds the appellant is seen inserting his thumb into A's vagina. At around 45 seconds the appellant inserts his finger into A's anus. At around 52 seconds the appellant again inserts his finger into A's anus. At around 2 minutes 7 seconds the appellant is seen inserting his finger into A's vagina. At around 2 minutes 37 seconds the appellant is seen inserting his penis into A's vagina. The appellant can be seen on multiple occasions attempting to insert his penis into A as he holds her firmly in position on the bed. At around 3 minutes 30 seconds into the video, the appellant is seen inserting his finger into A's vagina. At around 4 minutes 5 seconds into the video, the appellant is again seen inserting his finger into A's vagina. This conduct is the subject of a charge of indecent dealing with a lineal or de facto relative under the age of 16 (count 22), three charges of sexually penetrating a child who is a lineal relative under the age of 16 (counts 23 ‑ 25) and a charge of indecently recording a child who is a lienal or de facto relative (count 26).[20]
[20] ts 18.

Incident 9

Four images in deleted format with associated data indicating they were taken on 27 December 2019 were located on the hard drive. The recordings are taken from a close‑up angle and show the appellant pulling A's underwear aside to expose her vagina as she lies on top of him. This conduct is the subject of a charge of indecent dealing with a lineal or de facto relative under the age of 16 (count 27) and a charge of indecently recording a child who is a lineal or de facto relative (count 28).[21]
[21] ts 18.

Incident 10

One image in deleted format with associated data indicating it was taken on 7 January 2020 was located on the hard drive. In this image, the appellant is seen resting his penis on the exposed buttocks of A, having ejaculated onto her. This conduct is the subject of a charge of indecent dealing with a lineal or de facto relative under the age of 16 (count 29) and a charge of indecently recording a child who is a lineal or de facto relative (count 30).[22]
[22] ts 18.

Incident 11

Sixteen images and two videos in deleted format with associated data indicating they were taken on 5 February 2020 were located on the hard drive. In the recordings A is seen in various positions on a bed. The accused moves A's underwear aside to expose her vagina and anus, spreading her vagina with his fingers and resting his penis on her before ejaculating onto her stomach. This conduct is the subject of a charge of indecent dealing with a lineal or de facto relative under the age of 16 (count 31) and a charge of indecently recording a child who is a lineal or a de facto relative (count 32).[23]
[23] ts 18.

Incident 12

Twenty‑one images depicting the appellant and A on a date unknown between 18 April 2019 and 26 February 2020 were located on the hard drive. In these images, the appellant is seen removing A's clothing and underwear to expose her vagina and anus, spreading her vagina with his fingers, and placing his penis between her legs in various different positions as she lies on top of him. This conduct is the subject of a charge of indecent dealing with a lineal or de facto relative under the age of 16 (count 33) and a charge of indecently recording a child who is a lineal or de facto relative (count 34).[24]
[24] ts 18 - 19.

Incident 13

Eight images depicting the appellant and A on a further date unknown between 18 April 2019 and 26 February 2020 were located on the hard drive. In these images, the appellant is seen moving A's clothing and underwear aside to expose her vagina as she lies on top of him. This conduct is the subject of a charge of indecent dealing with a lineal or de facto relative under the age of 16 (count 35) and a charge of indecently recording a child who is a lineal or de facto relative (count 36).[25]
[25] ts 19.

Incident 14

Seven images depicting the appellant and A on a further date unknown between 18 April 2019 and 26 February 2020 were located on the hard drive. In these images, the appellant is seen moving A's clothing and underwear aside to expose her vagina as she lies on top of him. The appellant also places his hand inside A's trousers. This conduct is the subject of a charge of indecent dealing with a lineal or de facto relative under the age of 16 (count 37) and a charge of indecently recording a child who is a lineal or de facto relative (count 38).[26]
[26] ts 19.

Incident 15

Six images depicting the appellant and A on a further date unknown between 18 April 2019 and 26 February 2020 were located on the hard drive. In these images A is seen on top of the appellant without any underwear. The appellant is seen spreading A's vagina and anus with his hand, as well as placing his exposed penis against her. In other images, the appellant is seen attempting to insert his penis into A's anus as she lies on top of him. This conduct is the subject of a charge of indecent dealing with a lineal or de facto relative under the age of 16 (count 39), a charge of attempted sexual penetration of a child who is a lineal relative under the age of 16 (count 40) and a charge of indecently recording a child who is a lineal or de facto relative (count 41).[27]
[27] ts 19.

Incident 16

13 images depicting the appellant and A on a further date unknown between 18 April 2019 and 26 February 2020 were located on the hard drive. In these images the appellant is seen moving A's underwear aside, spreading her vagina with his fingers, as well as placing his penis against her vagina and buttocks. In other images, the appellant is seen attempting to insert his penis into A's anus as she lays on top of him. This conduct is the subject of a charges of indecent dealing with a lineal or de facto relative under the age of 16 (count 42), attempted sexual penetration of a child who is a lineal relative under the age of 16 (count 43) and indecently recording a child who is a lineal or de facto relative (count 44).[28]
[28] ts 19.

Incident 17

An image of A taken on a further date unknown between 18 April 2019 and 26 February 2020 was located on the hard drive. This image is focused on the underwear or crotch of A as she lies on her back on a sofa. The image also shows the appellant holding A's legs apart. This conduct is the subject of a charge of indecently recording of a child who is a lineal or de facto relative (count 45).[29]
[29] ts 19.

Incident 18

An image of A taken on a further date unknown between 18 April 2019 and 26 February 2020 was located on the hard drive. In this image the appellant has his pants around his ankles and he is holding his exposed penis. A is lying between his legs not wearing underwear. This conduct is the subject of a charge of indecent dealing with a lineal or de facto relative under the age of 16 (count 46) and a charge of indecently recording a child who is a lineal or de facto relative (count 47).[30]
[30] ts 19 - 20.

Incident 19

Six images depicting the appellant and his son K in deleted format with associated data indicating they were taken on 27 November 2019 were located on the hard drive. In five of the images K is seen fondling the appellant's exposed and erect penis whilst K is sitting on top of the appellant in bed. In another image K is seen lying naked on top of the appellant with both of their genitals touching. This conduct is the subject of a charge of indecent dealing with a lineal or de facto relative under the age of 16 (count 48) and indecently recording a child who is a lineal or de facto relative (count 49).[31]
[31] ts 20.

Incident 20

A 15‑second video depicting the appellant and K in deleted format with associated data indicating it was taken on 13 January 2020 was found on the hard drive. By this time, K had turned eight. In this recording the appellant and K are seen lying naked on a bed. The appellant is masturbating K's penis as K holds the appellant's penis in his hand. This conduct is the subject of a charge of indecent dealing with a lineal or de facto relative under the age of 16 (count 50) and a charge of indecently recording a child who is a lineal or de facto relative (count 51).[32]
[32] ts 20.
The remaining charge (count 52) is one of indecently recording a child under the age of 13 and relates to children other than the appellant's children. An analysis of the hard drive identified a number of images of other children that were taken by the appellant. These comprised:[33]
a.Three indecent images of the appellant's 4‑year‑old niece. The images focus on the underwear or crotch of the child as she sits with her legs apart on a couch.
b.Three images of an unknown child around 5 years of age. These images were taken at the appellant's previous workplace where he was employed as a manager between 8 August 2018 and 25 May 2020. The images appear to have been surreptitiously taken and focus on the underwear and crotch of the female victim (up her skirt) as she sits with her legs on a couch.
c.An image of three unknown children wearing bathers around 5 to 8 years of age. This image was taken at the appellant's previous workplace where he was employed as a manager between 8 August 2018 and 25 May 2020. This image also appears to have been taken surreptitiously. The image is taken from a low angle and focuses on the bottoms of the children.
[33] ts 20.

Personal circumstances

The appellant was aged 32 at the time of sentencing. He was born in New Zealand and is the youngest of three children born to his parents' union.[34]
[34] ts 53.
The appellant's parents relocated the family to Australia in 1998 when the appellant was around 9 years old. The family initially lived in Cairns. The appellant experienced a positive upbringing in his childhood. He felt supported by his parents. He remains particularly close to his mother.[35]
[35] ts 53 - 54.
At school, the appellant struggled with numeracy and literacy. He disliked school and struggled to make friends.[36]
[36] ts 54; psychological report dated 15 August 2022, par 3.
The appellant met his first and only adult intimate partner (later to become his wife) as a 16‑year‑old in school. He completed year 12 and moved with his girlfriend to Townsville for work. His employment from that time has been in the hospitality industry, including in casinos, restaurants, and bars where he has largely worked in management roles.[37]
[37] ts 54.
The appellant's parents moved to Western Australia and the appellant, and his wife joined them in 2018. The appellant and his wife had three children, A and K and a younger son who was born after the offences had come to light. The appellant continued to work in the hospitality industry. This required him to work irregular and sometimes excessive hours. He had few friends, hobbies or interests outside of work.[38]
[38] ts 54.
After the appellant was arrested and remanded in custody, his older brother died suddenly and unexpectedly. His parents and sister remain supportive of him. His parents completed a character reference. References were also provided by an aunt and uncle and a cousin.[39]
[39] ts 54.
After his first arrest, and whilst on bail, the appellant had attended two psychological counselling sessions and four support group meetings for sex offenders. Since being remanded in custody, the appellant has worked as a cleaner in the prison and has ambitions to work as a draftsman or in building design.[40]
[40] ts 54, 57.
The appellant has no prior criminal record.[41]
[41] ts 54.

Psychological report

A psychological report did not indicate the presence of any significant mental health issues. The appellant's psychological profile is that he is a socially avoidant, anxious, inactive and distrustful individual. These character traits have evolved since early childhood as the appellant attempted to manage anxiety, low self‑esteem, and lack of confidence.[42]
[42] Psychological report dated 15 August 2022, par 10.
The appellant has a general tendency to maintain a level of emotional detachment and avoidance within his marital relationship. His avoidant personality style and lack of social outlets led to increased pornography viewing as a sole and consistent pastime and outlet. The psychologist expressed the view that this led to increased tolerance and desensitisation to the sexual images he was viewing, which rendered him increasingly likely to seek novel and inappropriate material.[43]
[43] Psychological report dated 15 August 2022, par 10.
The psychologist stated that the appellant's evolving interest in child exploitation material appeared to have opened opportunities for him to make connections with similarly inclined others, whilst maintaining a sense of safety and distance. The psychologist was of the view that this ensured that the appellant remained isolated and unlikely to receive appropriate feedback. The appellant used language in describing his interest in pornography in a way that showed that he externalised and was detached from that interest. He tended to distance himself from control and responsibility for his inappropriate decision making.[44]
[44] Psychological report dated 15 August 2022, par 10.
Communication with others online further encouraged cognitive distortion and the seeking of more extreme means to meet his continually escalating needs for stimulation. This appears to have overridden awareness of his own and his victims' humanity, rights or needs, whilst also dismissing any sense of his responsibilities, roles, and obligations.[45]
[45] Psychological report dated 15 August 2022, par 10.
The psychologist undertook a risk assessment which placed the appellant in the above‑average risk category. Relevant factors included the appellant's lack of capacity for relationship stability (being currently separated from his wife), general sense of social rejection, poor problem solving, sexual preoccupation, using sex to emotionally cope and deviant sexual interests.[46]
[46] Psychological report dated 15 August 2022, par 11.
The psychologist was of the view that the appellant warrants specialised sex offender intervention. Disclosures made to the psychologist indicate that he has a readiness to engage in such a program. He would also benefit from assistance in relation to mood regulation, anxiety management, assertiveness training, social and emotional awareness, as well as establishing interests and activities that challenge and provide an opportunity for increased social interaction. Monitoring management of his pornography addiction and his potential for sexual preoccupation and sexually deviant interests would be most appropriate. The psychologist expressed the view that assisting the appellant to establish awareness of, and engagement with, relapse prevention strategies and planning would be imperative in managing the risk of reoffending in the longer term.[47]
[47] Psychological report dated 15 August 2022, par 12.

Victim impact

Victim impact statements were received from the appellant's wife (and mother of the children) on behalf of herself, and separately on behalf of A and K.
The appellant's wife stated that the offending had caused her great stress, including physical consequences, such as vomiting when thinking of the offending. She has found it difficult to trust people after the appellant breached her trust and given that she was unaware of the offending. She has been financially impacted. She was pregnant with a third child when the appellant was charged. Since the appellant's remand in custody, she has had no financial support and had to move for a period into the appellant's parents' house.
The appellant's wife states that it is difficult to gauge the impact that the offending has had on the children. Whilst A was interviewed, she did not disclose any of the offending. The appellant's wife says that the children have not said anything to her about the abuse they suffered. She is fearful that the true impact of the offending will not manifest until they are older and come to realise what the appellant did.

Sentencing remarks

The findings of the learned sentencing judge are not challenged on this appeal.
After summarising the facts, the appellant's personal circumstances and the psychological report, the learned sentencing judge noted the following aggravating factors:[48]
1.The offending was persistent in that it occurred over approximately 11 months in the case of A and three months in the case of K.
2.The offending related to two children who were the appellant's own children.
3. As the victims' father the appellant was in a position of trust in respect of each of the victims. His proper role was to protect and care for them, not sexually abuse them.
4.The victims were extremely vulnerable, being aged between 4 and 8 years old. Furthermore, being the appellant's own children, they were in his home and had no easy means of escape. Further, K had an intellectual disability.
5.There was a degree of depravity in the offending, as exemplified by the vaginal penetration and attempted anal penetration of A with the appellant's penis and the use of a sex toy on one occasion.
6.The offending involved a degree of exploitation by filming or photographing the sexual offending. This produced a record of the conduct and the two victims had no control over what happened to those materials.
[48] ts 55.
After referring to the victim impact statements, the sentencing judge turned to mitigating factors. He noted that although the appellant participated and assisted in the police searches, he made no significant admissions. However, the appellant pleaded guilty on 1 April 2022 after submissions were made to the State on his behalf and negotiations occurred. There was an amendment to the charges and the prosecution facts.[49]
[49] ts 56.
The sentencing judge noted that whilst the pleas resulted in a trial being avoided and this was of benefit to the State and witnesses, in particular the appellant's wife, the prosecution case was based entirely on the digital images and videos and there would have been no need for the children to give evidence. In that sense, it was a relatively strong prosecution case. However, any trial would have involved the necessity for those present to view distressing material. His Honour concluded that the pleas of guilty were entered at an early stage, though not at the first reasonable opportunity. When the pleas were entered committal papers had been filed and served but a committal to the District Court had not yet occurred. His Honour allowed a discount for the guilty pleas of 20% pursuant to s 9AA of the Sentencing Act 1995 (WA).[50]
[50] ts 56, 58.
The sentencing judge noted that the psychologist had reported that the appellant appeared to distance himself from taking responsibility for his conduct. However, his Honour said that the appellant had now accepted that his actions were opportunistic and exploitative. His Honour accepted that the appellant was generally remorseful for his behaviour, though he had not understood or displayed genuine insight into the severity of that behaviour.[51]
[51] ts 57.
The sentencing judge noted that the appellant had no previous criminal record, a very good work history and that the offending was, according to those who knew the appellant, 'totally out of character'. His Honour said that whilst he could give some weight to this in mitigation, he needed to remember that offences of this type generally do not impact on other people or upon their perception of the offender until revealed.[52]
[52] ts 57.
The sentencing judge noted that the appellant had expressed a desire to access treatment to rehabilitate himself. This had been evidenced by the fact that prior to being remanded in custody the appellant had attended two psychological counselling sessions and four support group meetings for sex offenders. He had also indicated a willingness to undertake a sex offender program.[53]
[53] ts 57.
Turning to the seriousness of the offending, the sentencing judge said that the appellant offended for his own sexual gratification. The consequences for victims of such crimes are ordinarily devastating and enduring. The offending indicated that the appellant had a sexual interest in young children. This extended beyond his own children since he had indecently recorded others. The messages sent to the undercover law enforcement officers indicated that the appellant had had a sexual interest in his children for most of their lives. His Honour concluded that the appellant had groomed the victims, encouraged, and convinced them to allow his offending and used scare tactics and bribes to ensure that he could offend against them and that they would not disclose his actions. In these circumstances, personal deterrence was an important consideration.[54]
[54] ts 58 - 59.
The sentencing judge referred to the fact that on some occasions, it was apparent that the victims were distressed. The appellant had denied to the psychologist any awareness that A was recoiling during footage of the appellant abusing her. He claimed that he believed that A was a willing participant. His Honour stated that he had watched the footage of that offence and that it was clear to him that A was recoiling in pain and was an unwilling participant in the abuse.[55]
[55] ts 59.
The sentencing judge described the offending as a 'gross breach of trust'. The offending was more serious because of the appellant's relationship to the children as their father. The sexual offending was depraved behaviour that robbed both the appellant's children of their innocence.[56]
[56] ts 59 - 60.
The sentencing judge said that the sexual offending was aggravated by the recording of it. The recordings also showed the extent of the appellant's sexual interest in the children. His Honour said that there was no clear evidence that the appellant viewed, distributed or intended to distribute the recordings. However, the appellant had 'bragged' online of the type of material that he held with respect to his own children. The children had no control as to what the appellant did with the still images and videos in the future once he had taken them.[57]
[57] ts 60.
As regards the charges of disseminating and possessing child pornography, the sentencing judge said that the production of child pornography involves exploitation and corruption of children who are incapable of protecting themselves. Child pornography is not a victimless crime. The subjects are abused, violated, and degraded in the production of that material. Further, those who possess child exploitation material fuel demand for the corruption and exploitation of children. The harm caused by child exploitation material is heightened because it is a permanent record of the depicted child's abuse and the harm is exacerbated by its circulation. The prevalence of offending of this type is an issue because child exploitation material is readily available on the internet and may be obtained, possessed, and distributed in digital form across the world in multiple jurisdictions. His Honour noted that offences in relation to child exploitation material are often difficult to detect and investigate. The nature of this type of offending means that general deterrence is a paramount sentencing consideration.[58]
[58] ts 60 - 61.
The sentencing judge concluded that the seriousness of the appellant's offending was such that sentences of imprisonment were the only appropriate sentences in respect of all of the 52 offences. The offending against A, in particular, was said to be 'towards the upper end of the scale'. The impact and harm of the offending on the children was likely to be significant and enduring.[59]
[59] ts 61.
The sentencing judge then imposed individual sentences for each of the 52 counts before turning to the question of totality. Having regard to that principle, his Honour ordered that the sentences imposed for counts 1, 2, 12, 20, 24, 25 and 50 would be served cumulatively. The remaining sentences were to be served concurrently. This produced a total effective sentence of 17 years and 6 months' imprisonment. That sentence was backdated to 9 September 2020 when the appellant was first remanded in custody. An order was made that the appellant be eligible for parole.[60]
[60] ts 61 - 65.

Ground of appeal

The sole ground of appeal is that the learned judge erred in imposing a total effective sentence which was manifestly excessive. As noted earlier, the phrase 'manifestly excessive' is usually used where the challenge is to an individual sentence. It was apparent from the appellant's written and oral submissions that the ground of appeal is in fact alleging that the total effective sentence infringed the first limb of the totality principle, that is, that the sentence was disproportionate to the total offending.

Legal principles

The legal principles governing appeals contending that a total effective sentence infringes the first limb of the totality principle are well known. In Roffey v The State of Western Australia,[61] McLure JA (Steytler P & Miller JA agreeing), said of the totality principle:
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.
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. (footnotes omitted)
[61] Roffey v The State of Western Australia [2007] WASCA 246 [24] - [26].
The general principles governing appeals contending that error should be inferred on the basis that an individual sentence is manifestly excessive or inadequate, or that the total effective sentence infringes the first limb of the totality principle, are well established. Those principles were summarised in Kabambi v The State of Western Australia:[62]
(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)In order to determine whether a sentence for an individual offence is manifestly excessive or inadequate, the offence should be viewed in light of the maximum sentence prescribed by law for the crime, the standards of sentencing customarily imposed with respect to it, the place that the criminal conduct occupies in the scale of seriousness of crimes of that type, and the offender's personal circumstances.
(3)The first limb of the totality principle requires that the total effective sentence imposed on an offender who has committed multiple offences bears a proper relationship to the overall criminality involved in all of the offences (including those, if any, in respect of which the offender is still serving or is yet to serve a term of imprisonment), viewed in their entirety, having regard to all relevant facts and circumstances including those referable to the offender personally (and including, for example, the desirability of accommodating any wish to rehabilitate), all relevant sentencing factors and the total effective sentences imposed in comparable cases.
(4)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.
(5)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.
(6)Where there is a challenge on totality grounds, the severity of a sentence imposed on an individual count generally falls to be assessed in light of the sentences imposed in respect of the other counts and its contribution to the total effective sentence. A heavy individual sentence (which is not manifestly excessive) may be softened by an order that it be served concurrently with sentences imposed in relation to the other counts. A relatively light sentence (which is not manifestly inadequate) may, as a practical matter, have increased severity if it is ordered to be served cumulatively. The real question is whether the total effective sentence is unreasonable or plainly unjust.
[62] Kabambi v The State of Western Australia [2019] WASCA 44 [21].
In OTR v The State of Western Australia [No 2], this court stated that the well established general principles applicable to the sentencing of offenders convicted of sexual offending against children are as follows:[63]
[63] OTR v The State of Western Australia [No 2] [2022] WASCA 123 [55] - [57].
The authorities establish the following propositions in relation to sentencing for sexual offending against children:
1. There is no tariff for sexual offences against children. That is due to the great variation that can occur in the circumstances of the offending and the offenders themselves.
2.The primary sentencing considerations for sexual offending against children are appropriate punishment of the offender and general and personal deterrence - these considerations being informed by the need to protect vulnerable children.
3.Matters personal to an offender will ordinarily carry less weight.
4. In particular, the circumstance that an offender is otherwise of prior good character has little weight in cases of sexual offending against children. The offending is of such a nature that, until revealed, it generally will not impinge on others and will not affect their perception of the offender. Such offending can exist conformably with an otherwise apparent good character.
It was observed in 2012 that, in recent years, there had been a firming up of sentences imposed for sexual offences against children - particularly in cases involving intra‑familial sexual abuse.
Some cumulation of sentences is to be expected to reflect the fact that an offender's sexual offending against children involves multiple victims. Also, some cumulation of individual sentences is to be expected where there is repetitive and prolonged sexual offending against an individual child. This reflects the increased likelihood of significant and enduring harm that comes with such repetitive and prolonged sexual abuse, as well as to reflect the fact that the offender has not simply given way to impulse on an occasion. (footnotes omitted)
The general principles applicable to offenders convicted of an offence of possession of child exploitation material were described in The State of Western Australia v McCarthy by Mazza JA (McLure P & Buss JA agreeing) in the following terms:[64]
Offences relating to [child exploitation material] are not victimless crimes. Those who possess and distribute this material encourage its production which involves and depicts the abuse, exploitation, humiliation and corruption of children who are vulnerable and incapable of protecting themselves. The harm caused to these children is incalculable. In a very real sense, those who possess or distribute this material encourage further child abuse.
The prevalence of offending of this type is an issue because [child exploitation material] is readily available via the internet and may be obtained, possessed and distributed in digital form across the world in multiple jurisdictions. Offences in relation to it are often difficult to detect and investigate.
The major sentencing consideration is general deterrence. The court's duty is to protect children. The purpose of imposing deterrent sentences is to eliminate or reduce demand for, and thus the production and supply of, [child exploitation material]. This requires courts to send an unequivocal message that the distribution and possession of [child exploitation material] will ordinarily, as a matter of fact, be met with immediate imprisonment. Because of the weight to be given to general deterrence, mitigating factors personal to the offender, including good character, are accorded less weight.
…
An examination of the cases confirms that those who commit offences in respect of [child exploitation material] are, like the respondent, commonly of prior good character, are well regarded by those who know them and have done good work in the community. It is not at all unusual to see an offender who has no prior criminal record and is assessed as having a low risk of reoffending. Offenders are not infrequently people who have standing in the community and have achieved much in their life. These factors can only be given limited weight because of the need for general deterrence.
[64] The State of Western Australia v McCarthy [2014] WASCA 210; (2014) 246 A Crim R 86 [71] - [73], [76].
The approach as to the use of comparable cases is also well established. The following principles were distilled in The State of Western Australia v PJW:[65]
1.The guidance afforded by comparable cases is flexible rather than rigid.
2.The mere fact that a sentence is within or beyond the range of other sentences imposed for similar offending does not, of itself, establish that the sentencing discretion has or has not miscarried.
3.The sentencing range for comparable offences is merely one factor to be taken into account in deciding whether an individual sentence is manifestly inadequate or excessive and whether the total effective sentence infringes the first limb of the totality principle.
4.A range of sentences for comparable cases does not fix the range of a sound exercise of the sentencing discretion in a particular case.
5.When an appellate court dismisses an appeal against sentence or resentences an offender, the decision does not of itself fix the upper or lower limit of the range.
6.There is no tariff for sexual offences against children.
7.The sentence to be imposed in a particular case depends on the individual facts and circumstances, having regard to the maximum penalties and all relevant sentencing factors.
[65] The State of Western Australia v PJW [2015] WASCA 113.
The limited utility of broadly comparable cases has been emphasised in the context of sexual offending, including sexual offending against children given the wide variety of combinations of offending conduct involved in such offending. In OTR [No 2], it was said:[66]
It is particularly the case that there is limited utility in comparing total effective sentences in the context of sexual offending against children. The total effective sentence in another case can only provide very limited guidance as to whether the total effective sentence imposed in the case under appeal infringes the first limb of the totality principle where: (1) there is no established tariff for sexual offences involving children; and (2) the range of sexual offending and sexual offenders are infinitely variable. Moreover, often, given the wide variety of combinations of offending conduct, offenders and victims involved in sexual offences against children, different views may reasonably be taken as to whether the overall criminality involved in a group of offences in one case is greater or lesser than that involved in a group of offences in a different case. That variety makes it difficult to identify direct comparators and complicates any attempt to analyse whether the total effective sentence imposed in a particular case reveals a comparatively more severe or lenient approach than that adopted in a different case. (footnotes omitted)
[66] OTR [No 2] [62].

Appellant's submissions

The appellant accepts that the offences were extremely serious and deserving of a substantial term of imprisonment. The prosecution's characterisation of the criminality as being at the 'upper end of the scale of seriousness' is not challenged. However, it is submitted that the case is not in the most serious category.[67]
[67] Appellant's case, pars 3 - 5.
The appellant submits that SCN v The State of Western Australia,[68] in which a total effective sentence of 22 years and 6 months' imprisonment was imposed, was a much more serious case and 'provides a ceiling to the range of sentences which may be imposed'.[69] He submits that this case is comparable to RGT v The State of Western Australia,[70] in which a total effective sentence of 16 years' imprisonment was imposed, and The State of Western Australia v BKJ,[71] in which a total effective sentence of 14 years' imprisonment was imposed. He submits that there is nothing in his case that warrants a higher total sentence than those imposed in RGT and BKJ.[72]
[68] SCN v The State of Western Australia [2017] WASCA 138.
[69] Appellant's case [13].
[70] RGT v The State of Western Australia [2017] WASCA 120.
[71] The State of Western Australia v BKJ [2018] WASCA 136.
[72] Appellant's case, pars 18 - 24.
The appellant submits that although a difference of 18 months with the sentence imposed in RGT may be small in percentage terms, it is substantially more onerous and demonstrates a breach of the first limb of the totality principle.[73]
[73] Appellant's case, pars 26 - 27.

Respondent's submissions

The respondent agrees that the totality of the appellant's offending was less serious than that in SCN but says that this is reflected by the substantially higher total sentence imposed in that case. Otherwise, the use of expressions such as 'the most serious category' and 'worst category' is apt to cause confusion in cases that do not warrant the imposition of the maximum penalty for any individual offence.[74]
[74] Respondent's answer, pars 2 - 3.
The respondent says that the approach of the appellant in saying that his case is less serious than SCN and comparable to RGT and BKJ is overly simplistic and does not accord with this court's approach to the use of comparable cases. Reference to a small number of cases is not of great assistance in considering whether a total sentence breaches the first limb of the totality principle. In any event, the total sentence imposed on the appellant is broadly consistent with the sentence imposed in RGT. As regards BKJ, an important factor in that case was the mitigatory value of the offender having admitted his offending and having disclosed offences which would not otherwise have come to light. Furthermore, the total sentence in BKJ was referred to as falling towards the lower end of the available range.[75]
[75] Respondent's answer, pars 6, 9, 21 - 22.
The respondent submits that the seriousness of the offending is reflected in the period of time over which it extended, the number of victims, the number and type of offences, the age and vulnerability of the victims and the relationship between the appellant and the victims. Whilst the total sentence imposed was substantial, the respondent submits that it was commensurate with the overall criminality and that error therefore cannot be inferred.[76]
[76] Respondent's answer, pars 10, 23 - 24.

Disposition

The first limb of the totality principle requires a judge who is sentencing an offender for multiple offences to ensure that the total effective sentence bears a proper relationship to the overall criminality involved in all of the offences, viewed in their entirety and having regard to the circumstances of the case, including those referable to the offender personally. A claim that a total effective sentence infringes the totality principle asserts an implied error. For such a claim to succeed, the appellant must establish that the aggregate sentence is plainly unreasonable or unjust.
It is beyond doubt, and not disputed by the appellant, that the totality of his offending was extremely serious and deserving of a substantial term of imprisonment. The only issue raised by the appellant is whether the total sentence was disproportionate to the overall criminality such as to breach the first limb of the totality principle. This requires consideration of the maximum statutory penalties for the offences, the seriousness of the offending as a whole, the personal circumstances of the appellant and any assistance that can be derived from comparable cases.
The maximum penalties for the individual offences are referred to in the table at [5]. Those penalties reflect the very serious nature of offences of indecently dealing, sexually penetrating and indecently recording children who the offender knows to be his lineal relative. The relevant maximum penalties are:
1.Sexual penetration of a child who the appellant knows to be his lineal relative, where the child is under the age of 16 years (s 329(2) and s 329(9) Criminal Code): 20 years' imprisonment (seven offences).

2.Attempted sexual penetration of a child who the appellant knows to be his lineal relative, where the child is under the age of 16 years (s 329(2), s 329(9) and s 552 Criminal Code): 10 years' imprisonment (two offences).
3.Indecently dealing with a child who the appellant knows to be his lineal relative, where the child is under the age of 16 years (s 329(4) and s 329(10)(a) Criminal Code): 10 years' imprisonment (19 offences).
4.Indecently recording a child who the appellant knows to be his lineal relative, where the child is under the age of 16 years (s 329(6) and s 329(10)(a) Criminal Code): 10 years' imprisonment (21 offences).
5.Distributing child exploitation material (s 219(2) Criminal Code): 10 years' imprisonment (one offence).
6.Possession of child exploitation material (s 220 Criminal Code): 7 years' imprisonment (one offence).
7.Indecently recording a child under the age of 13 years (s 320(6) Criminal Code): 10 years' imprisonment (one offence).

As to the seriousness of the offending, the appellant's offending was, taken as a whole, extremely serious. It involved persistent sexual offending over approximately one year against the appellant's two very young children. Over that period sexual offending occurred on 20 occasions, 18 of which involved the appellant's 4‑year‑old daughter and two of which involved his 7 ‑ 8‑year‑old son.
The offending involved a gross breach of the appellant's trusted role as a father. As a parent, he had privileged access to the children and was able to misuse their love for him to obtain their compliance with his sexual demands and to ensure their silence. It is telling that neither of the children revealed the offending and that the prosecution case relied entirely on recordings. That the offending was at the hands of a parent and occurred in the family home meant that the children were highly vulnerable and had no realistic prospect of avoiding the abuse.
In respect of the appellant's 4‑year‑old daughter, the offending included multiple offences of sexual penetration and attempted sexual penetration. These included acts of digital and penile penetration of the vagina and digital penetration of the anus. The appellant persisted in this conduct even when his daughter recoiled in pain. On one occasion he used a sex toy. There was an element of depravity in this offending. It is apparent that the appellant's sexual interest prevailed over any concern for the physical or psychological welfare of his children.
The appellant recorded the sexual offending. This involved both still and video recordings. The recordings were discovered by the police after the appellant offered to exchange child exploitation material with an undercover law enforcement officer on a social media application. His communications with the law enforcement officer revealed a callous disregard for the welfare of his children and a willingness to exploit them for his own deviant purposes.
The appellant also possessed and distributed child exploitation material. The material he possessed was at all levels of seriousness and included 12 still images and 20 videos in the most serious category. In addition, he indecently recorded other children. This reveals that his sexual interest in children extended beyond his own children.
The offending included the following aggravating factors:
1.The offending was persistent. It involved 20 incidents over an 11‑month period.
2.There were two child victims of the contact offences.
3.The children were vulnerable by reason of their relationship to the appellant and their ages.
4.The offending involved a gross breach of trust by the appellant.
5.The appellant recorded each incident and offered to share such recordings.
As to the appellant's personal circumstances, the only significant mitigating factor was his pleas of guilty. Those pleas were entered prior to trial, but not at the first reasonable opportunity. The sentencing judge accepted that the appellant was 'generally remorseful' but noted that the appellant had distanced himself from responsibility when speaking to the psychologist. As to other personal factors, the appellant has no prior criminal record and a favourable work history. However, they are matters to which little weight can be given. He has also expressed a willingness to engage in rehabilitation. As against that, his risk of re‑offending was assessed as being above average.
The appellant's approach to comparable cases does not conform with the accepted use of such cases in considering whether a total sentence is in breach of the first limb of the totality principle. The appellant seeks to use each of the three cases on which he relies as being a boundary marker that definitively sets the appropriate sentence for not only that case but other cases that are comparable. Thus, he submits that SCN sets an upper limit on the total sentence that can be imposed for sexual offending against children and that RGT and BKJ set a standard for the sentence that should be imposed in a case like that of the appellant.
As the respondent notes, that approach is altogether too simplistic. Comparable cases must be considered in the light of the fact that sentencing is a discretionary decision and there is no single correct sentence in any particular case. Accordingly, comparable cases can only provide a guide or yardstick. No single case sets the limits of sentencing discretion. Whilst the criminal justice system strives for consistency in sentencing, that consistency is achieved by viewing all relevant factors in the context of the range of sentences customarily imposed for similar offending. It is rarely useful to select a very small group of cases and suggest that a tariff can be inferred from that small group.
It follows that we do not accept the appellant's submission to the effect that the sentence of 22 years 6 months' imprisonment imposed in SCN operates as a ceiling for sentences for child sexual offending. That submission is inconsistent with the more recent decision of this court in JTR v The State of Western Australia.[77] In JTR, this court upheld a total effective sentence of 25 years' imprisonment for various child sexual offences imposed on an offender after pleas of guilty for which the offender received a discount of 25% under s 9AA of the Sentencing Act. The number of offences and number of victims in JTR was greater than in the present case. However, when regard is had to the various comparable and distinguishing features of the two cases, the total effect sentence upheld in JTR is broadly consistent with the total effective sentence imposed on the appellant in the present case.
[77] JTR v The State of Western Australia [2023] WASCA 131.Error! Bookmark not defined.
As to the comparable cases referred to by the appellant, in RGT the offender pleaded guilty to 29 child sexual offences, of which 16 were penetration offences, six were indecent dealing offences and seven were offences of making indecent recordings. There were three victims aged between 2 ‑ 13 years old. The offending occurred over a 17‑month period and the offender was either the father or stepfather of each victim. The offender was 29 years old and had no prior convictions. He received a 15% discount for his pleas of guilty. An appeal against the total effective sentence of 19 years' imprisonment was allowed and a new total effective sentence of 16 years' imprisonment was imposed.
The sentence imposed on the appellant is broadly consistent with that imposed in RGT. While there were three victims in RGT the total number of offences in that case was significantly less. There were also no offences of distributing and possessing child exploitation material in that case. When those matters are taken into account, and notwithstanding the higher discount for pleading guilty in the appellant's case, RGT is seen to be broadly consistent with the sentence imposed on the appellant.
In BKJ the offender pleaded guilty to 61 child sex offences, of which 19 were penetration offences, nine were indecent dealing offences, three were offences of procuring a child to sexually penetrate, three were offences of procuring a child to do an indecent act, 24 were offences of making indecent recordings, two were offences of possession of child exploitation material and one was an offence of distributing child exploitation material. There was one victim who was aged between 2 and 12 years at the time of the offending, which occurred over a 10‑year period. The offender was the father of the victim. The offender was aged 53 at the time of sentencing. He was frank with the psychologist who interviewed him and disclosed additional offending. He pleaded guilty at the first opportunity and received a 25% discount. A State appeal against a total effective sentence of 14 years was dismissed.
An important feature of BKJ was that the offender not only admitted his offending but revealed additional offences that would not otherwise have come to light. He also disclosed the location of USB drives which the police had not located during the execution of a search warrant. Those USB drives revealed many of the offences that the offender had committed. In contrast, the appellant did not disclose any incriminating material to the police and his offending was discovered as a result of police investigations. Furthermore, in dismissing the State appeal against sentence, this court observed that there is no one correct sentence, that there is a range of sentences open to a sentencing judge and that the sentence in that case 'fell to the lower end of that range'.[78] When those factors are taken into account BKJ is seen to be broadly consistent with the sentence imposed on the appellant.
[78] BKJ [158].
In addition to the cases referred to by the appellant we have also had regard to Newton v The State of Western Australia;[79] CDL v The State of Western Australia;[80] SAL v The State of Western Australia;[81] The State of Western Australia v AHD;[82] MHE v The State of Western Australia;[83] LWD v The State of Western Australia;[84] Coulter v The State of Western Australia;[85] Lewsam v The State of Western Australia;[86] AIM v The State of Western Australia[87]and Headley v The State of Western Australia.[88] It is unnecessary to set out the facts and circumstances of those cases. It is sufficient to note that they do not support a conclusion that the total sentence imposed on the appellant was disproportionate to his overall offending.
[79] Newton v The State of Western Australia [2023] WASCA 7.
[80] CDL v The State of Western Australia [2022] WASCA 18.
[81] SAL v The State of Western Australia [2021] WASCA 192.
[82] The State of Western Australia v AHD [2021] WASCA 13.
[83] MHE v The State of Western Australia [2019] WASCA 133.
[84] LWD v The State of Western Australia [2017] WASCA 174.
[85] Coulter v The State of Western Australia [2019] WASCA 215.
[86] Lewsam v The State of Western Australia [2016] WASCA 60.
[87] AIM v The State of Western Australia [2014] WASCA 155.
[88] Headley v The State of Western Australia [2018] WASCA 37.
The appellant undoubtedly received a substantial sentence for his very serious offending. However, when all relevant factors are taken into account it is not possible to conclude that the total effective sentence is inconsistent with sentences imposed in comparable cases.
Having regard to the maximum penalties, the seriousness of the offending taken as a whole, the personal circumstances of the appellant and the limited guidance afforded by comparable cases, the appellant has failed to establish that the total effective sentence of 17 years and 6 months' imprisonment breached the first limb of the totality principle. The total sentence was not disproportionate to the overall offending. The total sentence was not plainly unreasonable or unjust.

Conclusion

Whilst we would grant leave to appeal, the appeal should be dismissed.

Orders

1.Leave to appeal granted.
2.Appeal dismissed.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
AZ
Associate to the Honourable Justice Hall
9 APRIL 2024