D v The State of Western Australia - [2009] WASCA 155

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE COURT OF APPEAL (WA)

CITATION: D -v- THE STATE OF WESTERN AUSTRALIA [2009] WASCA 155

CORAM: McLURE JA
BUSS JA
MILLER JA

HEARD: 3 AUGUST 2009

DELIVERED : 25 AUGUST 2009

FILE NO/S: CACR 164 of 2008

BETWEEN: D
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent

ON APPEAL FROM:
Jurisdiction              :  DISTRICT COURT OF WESTERN AUSTRALIA
Coram  :YEATS DCJ
File No  :IND 520 of 2008, IND 524 of 2008

Catchwords:

Criminal law - Appeal against sentence - Sexual offences against child under care, supervision or authority - Two complainants - Teacher/student relationship - Consensual sexual acts - Multiple counts - Persistent sexual conduct with child under the age of 16 years - Effective sentence of 7 years 6 months' imprisonment - Totality

Legislation:

Criminal Code (WA), s 321A, s 322(2)

Result:

Leave to appeal granted
Appeal allowed
Sentences set aside
Appellant resentenced

Category: B

Representation:

Counsel:

Appellant: Mr L M Levy SC
Respondent: Mr J Mactaggart

Solicitors:

Appellant: Alana Padmanabham
Respondent: Director of Public Prosecutions (WA)

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

Church v The State of Western Australia [2007] WASCA 215; (2007) 117 A Crim R 23
Galluccio v The Queen [2000] WASCA 178
House v The King (1936) 55 CLR 499
JAF v The State of Western Australia [2008] WASCA 231
Jarvis v The Queen (1993) 20 WAR 201
Poulton v The State of Western Australia [2008] WASCA 97
Roffey v The State of Western Australia [2007] WASCA 246
Schriever v The State of Western Australia [2008] WASCA 133
The State of Western Australia v Akizuki [2008] WASCA 267
VIM v The State of Western Australia [2005] WASCA 233; (2005) 31 WAR 1

McLURE JA: I agree with the orders proposed by Miller JA. These are my reasons for doing so.
The appellant was convicted on his own plea of guilty of seven counts of sexual penetration of a child (the first complainant) under his care, supervision or authority contrary to s 322(2) of the Criminal Code (WA) (the Code). For the purposes of that offence, a child is a person of or over the age of 16 years and under the age of 18 years (s 1 and s 322(1) of the Code).
The first complainant was aged 16 years and 9 months when the offending commenced and had turned 17 when the last three offences were committed. The offences consisted of four counts of penile penetration of the vagina (the sentence for each of which was 2 1/2 years' imprisonment), two counts of cunnilingus (18 months' imprisonment for each offence) and one count of fellatio (12 months' imprisonment).
The appellant was also convicted of one count of persistent sexual conduct with a child (the second complainant) under the age of 16 years contrary to s 321A of the Code. There were approximately eight separate occasions over a period of nearly five months in which the sexual conduct, primarily penile penetration of the vagina, occurred. The offending commenced when the complainant was aged 15 years and 7 months. The appellant was sentenced to a term of 5 years' imprisonment for this offence. As a result of the orders for cumulation and concurrence, the appellant was sentenced to a total effective term of imprisonment of 7 years 6 months (11 years and 3 months pre‑transitional).
Absence of consent is not an element of any of the offences committed by the appellant. Moreover, for the offences under s 322(2) the State did not have to prove that the offences were caused by the appellant positively exercising any power, influence or authority arising from his position. The intentional exploitation of a position of power, influence or authority for a sexual purpose is the hallmark of sexual predation. Lack of consent or proof of sexual predation aggravates the seriousness of the offending. Even in the absence of those aggravating factors, the offences in question are serious as reflected by the fact that a term of immediate imprisonment is ordinarily imposed. The mere fact that a person is in a position of power, influence or authority can potentially increase that person's attractiveness in a broad sense to persons in their charge. The policy of the law is to prevent persons in a position of

ascendancy from acting on opportunities presented by such imbalances if the person in their charge is still a child.

The appellant, who was aged 31 when the offending commenced, was a physical education teacher at the local high school attended by the complainants. He also coached the local soccer team of which the complainants were members. Both complainants were willing participants in the sexual activity and there is no evidential foundation for a finding that the appellant was a sexual predator. The weight to be given to these factors is of course linked with the age of the complainant. The weight would increase as the age of the complainant increased.
There are also mitigating factors in this case. The appellant pleaded guilty prior to trial, had excellent antecedents and had made a significant contribution to his local and school community. He received numerous letters of support from members of those communities.
Having regard to all relevant sentencing considerations the total effective sentence of 7 years and 6 months does not bear a proper relationship to the total criminality of the appellant's offending as a whole. That is, the total effective sentence offends the first limb of the totality principle. I agree with Miller JA that a total sentence of 5 years' imprisonment is all that is required to meet the recognised sentencing objectives including punishment, retribution and deterrence. I also agree with Miller JA that the individual sentences imposed for counts 1, 3, 4, 6 and 8 are manifestly excessive and should be reduced in the way he indicates.
BUSS JA: In my opinion, the appeal should be allowed, the sentences imposed by the learned sentencing judge (Yeats DCJ) be set aside, and the appellant re‑sentenced in the manner indicated by Miller JA. I agree with his Honour's reasons and also with the reasons of McLure JA. I do not perceive any material difference or inconsistency in their Honours' reasoning.
MILLER JA: The appellant was charged with seven offences of sexual penetration of a child under his care, supervision or authority, contrary to s 322(2) of the Criminal Code (WA), and one offence of persistent sexual conduct with a child under the age of 16 years, contrary to s 321A of the Criminal Code.
Section 322(1) defines a 'child' as a child of or over the age of 16 years. Section 322(2) provides that 'a person who sexually penetrates a

child who is under his or her care, supervision or authority is guilty of a crime and is liable to imprisonment for 10 years'.

Section 321A of the Criminal Code provides, in s 321A(4), that 'a person who persistently engages in sexual conduct with a child under the age of 16 years is guilty of a crime and is liable to imprisonment for 20 years'. Section 321A(2) provides that for the purposes of the section 'a person persistently engages in sexual conduct with a child if that person does a sexual act in relation to the child on 3 or more occasions each of which is on a different day'.
The appellant pleaded guilty to all offences and was sentenced on 6 November 2008 to an effective term of imprisonment of 7 years 6 months. He seeks leave to appeal against each of the sentences imposed and against the aggregate sentence imposed, contending that each sentence was manifestly excessive and that the sentencing judge erred by failing to properly apply the totality principle. On 18 February 2009, an order was made that the application for leave be heard together with the appeal.

The facts

There were two complainants who were alleged to be the victims of the appellant's conduct. The first complainant was sexually penetrated on seven occasions between 17 March and 31 July 2006. The second complainant was in a sexual relationship with the appellant during the latter part of the year 2006.

Counts 1 - 7 on the indictment

The prosecution case against the appellant was that on several occasions between 17 March and 31 July 2006, the appellant engaged in behaviour that resulted in him sexually penetrating the first complainant, who was then a 16‑year‑old student at a country high school.
Count 1 alleged that on a date unknown between 17 March and 9 April 2006 an incident of sexual penetration occurred in an office within the confines of the high school gymnasium. The appellant invited the complainant to a secluded part of the office and he locked both doors to the office. The gymnasium itself was already locked. The appellant placed the complainant on the ground and took off her pants and underwear. He then pulled down his shorts and underwear, lay on top of

the complainant and placed his penis inside her vagina. He had sexual intercourse with her for approximately 15 minutes.

Count 2 occurred on or about 18 March 2006. In the early hours of the morning of 18 March 2006, the appellant sent the complainant a text message inviting her to engage in sexual activity. The complainant was at home at the time. At about 1.00 ‑ 1.30 am, she dressed and left the house without the knowledge of her family. She walked to the bottom of the driveway of the house, where the appellant picked her up in his vehicle. He took her to a location just outside the country town, where he drove along a bush track and stopped his vehicle. He took a sleeping bag from the back seat of the car, pulled down the rear tailgate and lay the sleeping bag on the back. Whilst the complainant was sitting on the back tailgate with her legs hanging over the side, the appellant positioned himself between her legs. He undressed the complainant. He licked her vaginal area with his tongue for five to six minutes. They remained there for about one hour, before the appellant returned the complainant to her home.
Count 3 occurred on 9 April 2006. On that evening, the complainant and the appellant both attended a school ball. Before the ball, the appellant and the complainant exchanged text messages relating to having sex after the ball. After the ball, the complainant went to a party, where she continued to exchange text messages with the appellant. The complainant told the appellant to meet her at a road near the house where the party was being held. The appellant and the complainant met and the appellant then drove to a tourist park picnic location. There, he took a swag from his vehicle and both the complainant and the appellant got into it. The appellant inserted his penis into the complainant's vagina and sexual intercourse occurred for about 30 minutes.
Count 4 occurred on a date between 12 April and 3 May 2006. The complainant was at home alone when she received a text message from the appellant, asking her to meet him on the main road near her house. She went to that location and she and the appellant then drove to a firing range. There, the appellant pulled down the rear tailgate of his vehicle, rolled his swag out and had sexual intercourse with the complainant for a period of about 20 minutes.
Count 5 occurred on a date between 4 June and 31 July 2006. The complainant by this time had a driving licence and she was able to drive a vehicle. She parked her vehicle behind the supermarket in the country town and walked to a nearby street, where the appellant collected her. The appellant took her back to his house. They went inside, where the complainant lay on a couch. The appellant then removed her pants and underwear and penetrated her vagina with his tongue. After a period of about one and a half hours, he returned her to her vehicle.
Count 6 again occurred between 4 June and 31 July 2006. The appellant picked up the complainant on a Saturday afternoon. She had again parked her vehicle behind the supermarket within the country town. The appellant took her to a firing range, where he removed her clothing and had sexual intercourse with her for a period of about 20 minutes.
Count 7 also occurred between 4 June and 31 July 2006. The complainant was with a friend who was house‑sitting for a family. She received a text message from the appellant and she drove to his house. She parked in the driveway at the front of his house and entered the house through the front door. After the complainant and the appellant watched television for some time, they undressed and the appellant engaged in oral sex with the complainant, placing his penis into her mouth. This occurred for a period of about two minutes. After returning home, she text messaged the appellant and told him that she did not want to engage in sexual conduct with him any further. She said that it was 'getting too much for her to handle'.

Count 8 on the indictment

Count 8 involved the second complainant. The prosecution case was that the second complainant was a student at the same high school. She knew the appellant because she was a member of the women's soccer team at the school. She, too, had met him whilst she was a student at the school. The second complainant was also a friend of the appellant's partner.
The prosecution case was that the second complainant confided in the appellant about some problems at her home and that, following this, the appellant commenced a sexual relationship with her.
On the afternoon of 25 June 2006, the second complainant and the appellant's partner went to the appellant's home after a soccer game. There, the second complainant and the appellant's partner sat in the lounge room, consumed alcohol and played cards. After a period of approximately two hours, the appellant came home. The second complainant was tired and went to a spare room in the front of the house, where she undressed herself. The appellant's partner joined the second complainant in bed and, shortly after that, the appellant got into the bed. He at first kissed his partner and then kissed the second complainant. He began having sexual intercourse with his partner whilst the second complainant was present. After having sexual intercourse with his partner, the appellant used his tongue to lick the vagina of the second complainant. He then had sexual intercourse with his partner again, before having sexual intercourse with the second complainant. Further sexual intercourse occurred with his partner, followed by sexual intercourse again with the second complainant on three further occasions during the course of this incident.
About one month later, the second complainant was at the appellant's house. The appellant and his partner were also there. After the appellant's partner left the house, the appellant asked the second complainant to come to his room. He removed the second complainant's top, shorts and underwear. He then removed his own shorts and commenced having sexual intercourse with the second complainant. This ceased when the appellant's partner was heard to return.
Approximately two weeks later, the second complainant was again at the appellant's house. She was there with friends of the appellant's partner. The second complainant recalled going to sleep in the house and waking up in the morning with the appellant in the bed. The appellant removed his clothes and penetrated the second complainant's vagina with his penis. The incident occurred for between five and 10 minutes.
During the third term school holidays in 2006, the second complainant went to a town to visit a friend. The appellant was already at that location. He drove the second complainant back to her home town and, at a particular location on the way back, had sexual intercourse with her for a period of between five and 10 minutes.
There was further occasion when the second complainant was at the appellant's house and sexual intercourse occurred between the second complainant and the appellant in the presence of the appellant's partner. During the course of that incident, the appellant licked the second complainant's vagina before having sexual intercourse with her.
There was another occasion of sexual intercourse between the appellant and the second complainant, after he had returned from a period interstate. The appellant and second complainant had been to watch a netball game. After leaving the game, they first dropped somebody off at a house and then went to bushland, where they partially undressed and had sexual intercourse.
During the fourth or fifth week of the third school term in 2006, the second complainant had sexual intercourse with the appellant in the appellant's bedroom. The incident took about 15 minutes.
The final act of sexual intercourse between the second complainant and the appellant occurred when the second complainant was at the appellant's house. The appellant started to kiss the second complainant. He removed her pants and had sexual intercourse with her on a couch for about five to 10 minutes. The incident only ended when the second complainant indicated that she needed to go and umpire a basketball game.
On or about 29 November 2006, the second complainant's mother became aware of the relationship between the second complainant and the appellant, and all further sexual contact ceased. Some time after this occurred, the appellant sent the second complainant a text message, saying that he was sorry that it had to end the way it did.

Sentencing

The sentencing judge began her sentencing remarks by observing that all the offences committed by the appellant took place at a time when the appellant was a teacher at the country high school. He was initially 31 years of age, and turned 32 later in the year. He coached the local women's soccer team in which both complainants were players.
The sentencing judge first reviewed the facts which constituted each of the counts on the indictment. Her Honour then turned to matters personal to the appellant and to his co‑offender (his partner). She observed that both the appellant and his partner (who were then 34 and 21 years of age respectively) were in a relationship and had a 1‑year‑old child. Their relationship was said to have 'improved or become ... long‑term' in consequence of their being ostracised in the local community. They were living in Perth at the time of sentencing.
The sentencing judge referred to a number of personal references relating to the appellant. She also made reference to a 'helpful' letter from the appellant's mother. There were a number of letters from fellow teachers at the country town and letters from students who had been helped through times of crisis by the appellant. The sentencing judge reached the following conclusion in relation to the appellant's personal circumstances:
It is clear that he is a man who during his work career and [in] particular while he was in [the country town] gave of his time very generously in the community and in the school community. He gets credit for that, but as his counsel accepts and is well known in cases which involve sexual offending against children, particularly when there's a breach of trust involved, those matters fall to a secondary position.
The sentencing judge made reference to aspects of the appellant's family life. These included his older brother suffering from autism, the breakup of his parents' marriage, his mother being in dysfunctional relationships and, more latterly, his mother suffering a stroke.
The sentencing judge was of the view that the appellant could not be said to be immature. She concluded that a male teacher between 31 and 32 years of age would have been expected to have avoided 'having inappropriate sexual relationships with the students'.
It was accepted that the appellant's risk of reoffending was not high and that he was in the 'medium/low risk' category for reoffending. He needed treatment and his propensity to be involved with children was a risk that could be addressed by treatment.

The sentencing judge appreciated that each of the complainants had been willing participants, but noted from their victim impact statements that their willingness had led them, as they matured, to 'deep shame [and] disgust'.
The sentencing judge made reference to the circumstances in which the appellant had pleaded guilty. The pleas of guilty were negotiated after the appellant had been committed to the District Court for trial on a multiplicity of counts in the indictment.
After making reference to a number of cases, the sentencing judge concluded that a sentence of imprisonment was the only disposition of the matter which was open. Her Honour considered that there was a significant age disparity between the appellant and the complainants. Her Honour also made reference to the position of trust held by the appellant. Credit was given for the pleas of guilty, which were said to have been 'a great relief to [the] victims' who had not been required to come to court and talk about matters of which they were ashamed and embarrassed.
The sentences which were imposed by the sentencing judge are conveniently collected in a table prepared by counsel for the appellant, which is in the following terms:

Count	Complainant	Complainant's Age (most favourable to appellant)	Offence	Maximum Penalty	Sentence
1	First complainant	16 yrs 10 mnths	penile/vaginal penetration	10 years	2 ½ years concurrent
2	First complainant	16 yrs 9 mnths	cunnilingus	10 years	18 months concurrent
3	First complainant	16 yrs 10 mnths	penile/vaginal penetration	10 years	2 ½ years concurrent
4	First complainant	16 yrs 11 mnths	penile/vaginal penetration	10 years	2 ½ years concurrent
5	First complainant	17 yrs 1 mnth	cunnilingus	10 years	18 months concurrent
6	First complainant	17 yrs 1 mnth	penile/vaginal penetration	10 years	2 ½ years concurrent
7	First complainant	17 yrs 1 mnth	felatio [fellatio]	10 years	1 year concurrent
8	Second complainant	15 yrs. 7 mnths - 16 yrs	Various penile/vaginal Penetration and cunnilingus	20 years	5 years
Counts 1 - 7 were ordered to be served concurrently with each other, but cumulative upon Count 8. TOTAL EFFECTIVE SENTENCE 7 ½ years' imprisonment

Appeal

The grounds of appeal upon which leave is sought are as follows:
1.The learned sentencing Judge erred in the exercise of her sentencing discretion by imposing sentences that were manifestly excessive in light of the maximum sentence available at law, the standards of sentencing customarily observed in relation to these offences, the place which the criminal conduct occupies on the scale of seriousness of crimes of this type, and all of the appellant's personal circumstances.
Particulars
1.1The learned sentencing Judge erred in the exercise of her sentencing discretion by selecting 'starting points' for sentence in relation to counts 1 to 8 on the indictment that were manifestly excessive in light of all the circumstances of the offences.
2.The learned sentencing Judge erred by failing to properly apply the 'totality principle' resulting in an aggregate sentence that was both disproportionately long when viewed in light of the appellant's overall criminal culpability and 'crushing'.
Particulars
2.1The learned sentencing Judge erred by ordering that the sentences imposed in relation to counts 1 to 7 on the indictment, although concurrent with each other, be served wholly cumulatively upon the sentence imposed in relation to count 8.
At the hearing of the appeal, counsel for the appellant agreed that the 'Particulars' contained in par 1.1 could be ignored.

Ground 1

This ground contends that each of the individual sentences imposed by the sentencing judge was manifestly excessive.
Although the appellant's oral submissions began by contesting the 'starting point' for each of the sentences, that is not the question. The question is whether the actual sentence imposed for each of the offences could be said to be manifestly excessive.
There were a number of aggravating factors which related to each of the sentences imposed. They included the following:
(a)The appellant taught at the school which each of the complainants attended and he was also their soccer coach.
(b)There was a significant disparity in the ages of the complainants when compared to the age of the appellant. The first complainant was aged between 16 years 9 months and 17 years 1 month at the time the offences were committed and the appellant was aged 31, but close to 32 years of age. The second complainant was aged between 15 years 7 months and 16 years during the period of the offence. The appellant was then either 31 or 32 years of age.
(c)The offending occurred over a period of four months in relation to the first complainant and five months in relation to the second.
On the other hand, there were a number of mitigating factors. They included the following:
(a)Each of the complainants was a willing participant in the sexual acts.
(b)There was no force, violence or any persistence in the face of express reluctance in relation to the sexual acts committed.
(c)The complainants were 16‑17 and 15‑16 years of age respectively, and therefore in a different category from prepubescent children.
(d)The appellant pleaded guilty at the first reasonable opportunity after negotiating the offences in relation to which he would plead.
(e)The appellant had very good antecedents.
(f)The appellant was psychologically assessed as having only a medium/low risk of reoffending in relation to sexual offences.

Comparable cases

The most recent review of sentences imposed in comparable cases is contained within the judgment of Wheeler JA (with whom Buss JA agreed) in JAF v The State of Western Australia [2008] WASCA 231. The case bore some similarity to the present case. The appellant was convicted on his own pleas of guilty to 12 counts of indecent dealing with a child aged between 13 and 16 years and 21 counts of sexually penetrating a child aged between 13 and 16 years. The offences were committed in circumstances of aggravation, in that the complainant was under the care, supervision or authority of the appellant. The maximum penalty applicable for the offences of indecent dealing was 10 years and for the offences of sexual penetration 20 years. The appellant was sentenced to 5 years 8 months' imprisonment at first instance and he appealed against that sentence.
The facts of JAF revealed that the complainant in relation to all offences was a schoolgirl in a country town. She was between 14 and 15 years of age at the time the offences were committed and she was a student at a school where the appellant was a teacher. He was not her class teacher. The appellant was, however, the coach of the water polo team in which the complainant played. He was also a friend of her family. He was aged 34 years and married with two children. The complainant at times babysat the appellant's children. The appellant had the general authority of a teacher at the school at which the complainant was a student, although he had no direct responsibility for her.
Over a period of time, some kind of emotional relationship developed between the complainant and the appellant. Over a period of four months, the appellant engaged the complainant in sexual activity, which ranged from cunnilingus and fellatio through to penetration of the complainant's vagina with the appellant's penis.
There were a number of mitigating circumstances in the case. They arose from matters personal to the appellant, but also from the circumstances of the case. Wheeler JA, at [4], said:
While it is plainly irresponsible of any adult in the appellant's position to embark on such a relationship, it can at least be said that there appear to have been a number of occasions on which the appellant was careful to ascertain, so far as he could, that the complainant was a willing participant in what took place. He took precautions against pregnancy and sexually transmitted disease. When it became clear that the relationship was being investigated, he advised the complainant to tell the truth. He made prompt admissions, and entered early pleas of guilty.
Like the present case, there were also a number of aggravating features present in JAF. The appellant was a teacher at the school attended by the complainant, and he was her water polo coach and a family friend. Wheeler JA said, at [6]:
A moment's reflection would have made it apparent to the appellant that, having regard to those circumstances and having regard to the complainant's age, she would be unlikely to possess the maturity which might have enabled her either to reflect sensibly upon the wisdom of sexual activity at her age at all, or to understand the likely social and emotional consequences which might result from an affair with the married father of small children.
Much the same could be said of the appellant's behaviour in the present case. Had any time been taken for reflection about what he was doing, the appellant must have appreciated that neither of the two complainants could have had the maturity to 'reflect sensibly upon the wisdom of sexual activity' at their ages, or to 'understand the likely social and emotional consequences which might result' from the relationship.
The general principles applicable to cases of this type are set out in a number of cases which are reviewed by Wheeler JA in JAF at [15] ‑ [16]. Cases in which offences have been committed contrary to the provisions of s 322(2) and s 321A(3) of the Criminal Code are not generally offences in which the offender can be characterised as a 'sexual predator' either in relation to children generally or in relation to a particular child, or group of children (see Poulton v The State of Western Australia [2008] WASCA 97 per McLure JA, at [4]). As Wheeler JA pointed out, at [12], in JAF, where offenders are not predators, and where their behaviour is plainly out of character, whilst general deterrence is a factor of importance, personal deterrence, whilst remaining a factor to be considered, is of less weight.
The cases chosen by Wheeler JA for comparative purposes involve offences against children between the ages of 13 and 16 years where there is no apparent element of force or threat and no family relationship, but a significant disparity in age. They are not cases in which the appellant was a person who had the care, supervision or authority of the complainant and they need to be viewed in this light.
The range of sentences reviewed by this court in VIM v The State of Western Australia [2005] WASCA 233; (2005) 31 WAR 1 is of limited value, because the majority of cases examined in VIM were cases in which the complainants were truly children, rather than teenagers, and where abuse of the children often occurred in circumstances of force or threats, or in circumstances where the relationship between the child and the offender was such as to render any suggestion of consent absurd: JAF per Wheeler JA, at [14].
It is unnecessary to repeat the review conducted by Wheeler JA in JAF, but it can be said of the nine cases reviewed at [15] that the sentences have ranged from almost 3 years' imprisonment at the higher end to 12 months' imprisonment at the lower. Generally speaking, sentences of between 2 and 3 years have been imposed, but it is not possible to discern any 'tariff' for offences of this nature. In The State of Western Australia v Akizuki [2008] WASCA 267, Steytler P, after reviewing a significant number of cases involving sexual penetration without consent, concluded, at [68], that:
[T]he circumstances of sexual offending, and of sexual offenders, are almost infinitely variable. That, in turn, means that the sentence imposed in one case can provide only very limited guidance in deciding what sentence should be imposed for a similar offence in another case.
These observations were made in a different context, but are readily applicable to the present case. Each of the circumstances in which the offences were committed in the cases reviewed by Wheeler JA in JAF were different. In some cases, the disparity in ages between the complainant and the offender was significant, but in others it was not. In some cases, there were numerous acts of penile penetration, but in other cases there were limited acts of sexual penetration and a number of indecent dealings.
It is unnecessary to review the two additional cases to which Wheeler JA referred at [16], as they involve different circumstances of offending; namely, offences in which consent was either procured by deceit (Galluccio v The Queen [2000] WASCA 178) or non‑consensual offences (Church v The State of Western Australia [2007] WASCA 215; (2007) 117 A Crim R 23).

Conclusions in the present case

The offences committed by the appellant were serious and general deterrence remains a weighty discretionary factor in cases of this nature (JAF per McLure JA, at [25]). Nevertheless, the sentencing judge appears in the present case to have placed too much emphasis on the decision in Church and other cases in which pressure or persuasion has been placed upon young children in the context of sexual offending.
In my opinion, the sentences imposed by the sentencing judge on each of counts 1, 3, 4, 6 and 8 on the indictment were manifestly excessive. It may be that the sentencing judge was unduly influenced by cases in which persons in authority had abused that authority, but, whether this be so or not, the fact is that each of the sentences is more appropriate to a case in which there was an element of abuse of trust, rather than in the present case, where clearly there was a position of authority, but where each of the two complainants was a willing participant. The error is an error in the exercise of discretion in the sense that the sentences are clearly unreasonable and/or plainly unjust: House v The King (1936) 55 CLR 499 per Dixon, Evatt and McTiernan JJ, at 505.
In my opinion, each of the sentences should be revised. This includes the sentences on counts 2 and 7. Standing by themselves, they may not be manifestly excessive, but in the context of resentencing the appellant, they need to be revised to ensure consistency in the sentencing process. Using the table to which I have earlier referred, I consider the appropriate sentences to be as follows:

Count	Complainant	Complainant's Age (most favourable to appellant)	Offence	Max. Penalty	Sentence
1	First complainant	16 yrs 10 mnths	penile/vaginal penetration	10 years	1 ½ years concurrent
2	First complainant	16 yrs 9 mnths	cunnilingus	10 years	12 months concurrent
3	First complainant	16 yrs 10 mnths	penile/vaginal penetration	10 years	1 ½ years concurrent
4	First complainant	16 yrs 11 mnths	penile/vaginal penetration	10 years	1 ½ years concurrent
5	First complainant	17 yrs 1 mnth.	cunnilingus	10 years	12 months concurrent
6	First complainant	17 yrs 1 mnth.	penile/vaginal penetration	10 years	1 ½ years concurrent
7	First complainant	17 yrs 1 mnth	fellatio	10 years	9 months concurrent
8	Second complainant	15 yrs 7 mnths - 16 yrs	Various penile/vaginal Penetration and cunnilingus	20 years	3 ½ years
Counts 1 - 7 should be served concurrent with each other, but cumulative upon Count 8. TOTAL EFFECTIVE SENTENCE 5 years' imprisonment

I would therefore grant leave to appeal on ground 1, allow ground 1 and resentence the appellant in accordance with the above.

Ground 2

This ground contends that the sentencing judge failed properly to apply the totality principle, with the result that the aggregate sentence was disproportionately long and was a crushing sentence. Particulars to the ground contend that the sentencing judge erred by ordering that the sentences imposed in relation to counts 1 to 7 on the indictment, although concurrent with each other, should be served cumulatively upon the sentence imposed in relation to count 8.
The totality principle is well established in Western Australia. In Schriever v The State of Western Australia [2008] WASCA 133, at [26] ‑ [27], I summarised the essence of what McLure JA said in Roffey v The State of Western Australia [2007] WASCA 246, at [24] ‑ [27]:
It is accepted in this jurisdiction that the totality principle comprises two limbs. The position has recently been summarised by McLure JA in Roffey v The State of Western Australia [2007] WASCA 246 [24] - [26] as follows:
[T]he totality principle … 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: Woods v The Queen (1994) 14 WAR 341.
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: Martino v The State of Western Australia [2006] WASCA 78 [16]. An aggregate sentence may be inappropriately long under the first limb even if it cannot be described as crushing: Jarvis v The Queen (1998) 20 WAR 201, 216 (Anderson J).
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: R v Holder [1983] 3 NSWLR 245, 260 (Street CJ). 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: R v Holder (260).
When considering the application of the totality principle reference to other cases is useful. That is because they provide broad guidance on the question whether a total effective sentence will or will not offend the totality principle. However, it is important to bear in mind that there are limitations in the utility of such comparisons. The circumstances of the offending and of the offender might vary significantly: Roffey [27] (McLure JA).
In Jarvis v The Queen (1993) 20 WAR 201, Ipp J, at 206 ‑ 207, expressed the principle in slightly different terms, but to the same effect:
[I]n taking a 'last look' at the total imprisonment imposed, the court will continue to apply the principle that the sentence should be proportionate to the degree of criminality involved. That principle is, after all, basic to the law of sentencing: see Wicks v The Queen (1989) 3 WAR 372 at 379‑380. The crushing effect of a term of imprisonment is merely one of the mitigating factors that is to be taken into account when determining whether a particular term of imprisonment is proportionate to the criminality evinced.
While the subjective effect of a cumulative sentence upon a particular individual is plainly relevant, it cannot be regarded as of paramount importance. The difficulty expressed in Vaitos (at 301) by O'Bryan J with the concept that a richly deserved sentence should be reduced because the offender may feel crushed by it aptly illustrates its limitations as a mitigatory force.
The overriding principle is accordingly that the aggregate sentence (even when punishment is being imposed for multiple offences) should fairly and justly reflect the total criminality of the offender's conduct: Veen v The Queen(No 2) (1988) 164 CLR 465; Evangelista v The Queen; R v Glenister [1980] 2 NSWLR 597 at 612; Lade v Mamarika (1986) 83 FLR 312.
In the present case, it is first argued that the overall sentence of 7 years 6 months' imprisonment was disproportionate to the appellant's overall criminality. It is secondly argued that the sentence was crushing because the appellant had not committed any previous offences; was assessed as a medium/low risk of reoffending; had good prospects for rehabilitation; and had future prospects for leading a law‑abiding life.

In my opinion, there is substance in the ground, but, as I have already resentenced the appellant in relation to each of the offences he committed, different considerations now apply. In my opinion, it is appropriate to adopt the course taken by the sentencing judge and to order that each of the sentences imposed in relation to counts 1 ‑ 7 should be served concurrently with each other, but cumulatively with the sentence imposed on count 8. The end result is a sentence of 5 years' imprisonment. I consider that sentence to properly reflect the overall criminality of the appellant's behaviour. It cannot be said to be a crushing sentence.
A cumulative sentence is called for in the circumstances of the case. There were two complainants in relation to each of whom the appellant was a person in authority. There was a significant disparity in age between the appellant and the two complainants, and in each case the offending occurred over a period of several months. The element of general deterrence is important in this case. People who are in positions of authority in relation to teenage girls (particularly school teachers) need to be deterred from sexual conduct with them. An aggregate sentence of 5 years' imprisonment for the different offences committed by the appellant against the two complainants would, in my opinion, properly reflect the total criminality of the appellant's conduct. It also incorporates the mitigating factors personal to the appellant.

Conclusion

In my opinion, leave to appeal should be granted in relation to each of the grounds of appeal. Each ground should be upheld and the appellant should be resentenced to an aggregate term of 5 years' imprisonment. The individual sentences should be restructured in the way in which I have previously indicated.