Guagliardo v The State of Western Australia - [2023] WASCA 71

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT :   THE COURT OF APPEAL (WA)
CITATION:   GUAGLIARDO -v- THE STATE OF WESTERN AUSTRALIA [2023] WASCA 71
CORAM:   BUSS P
HALL JA

HEARD:   20 APRIL 2023
DELIVERED          :   2 MAY 2023
FILE NO/S:   CACR 14 of 2023
BETWEEN:   TERRY LEO GUAGLIARDO
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent

FILE NO/S: CACR 16 of 2023
BETWEEN: TERRY LEO GUAGLIARDO
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent

ON APPEAL FROM:
Jurisdiction              :   DISTRICT COURT OF WESTERN AUSTRALIA
Coram:   BARBAGALLO DCJ
File Number            :   IND 2189 of 2020
Jurisdiction              :   DISTRICT COURT OF WESTERN AUSTRALIA
Coram:   MIOCEVICH DCJ
File Number            :   IND 1475 of 2020

Catchwords:

Criminal law - Appeal against sentence - Child sexual offences - Possession of child exploitation material - Whether total sentence for child sexual offences breached first limb of totality principle - Whether sentence on one of the counts of possession of child exploitation material manifestly excessive - Whether overall total sentence for all of offending breached first limb of totality principle

Legislation:

Nil

Result:

CACR 14 of 2023
Leave to appeal refused
Appeal dismissed

CACR 16 of 2023
Leave to appeal refused
Appeal dismissed

Category: B

Representation:

CACR 14 of 2023

Counsel:

Appellant	:	In person
Respondent	:	No appearance

Solicitors:

Appellant	:	In person
Respondent	:	Director of Public Prosecutions (WA)

CACR 16 of 2023

Counsel:

Appellant	:	In person
Respondent	:	No appearance

Solicitors:

Appellant	:	In person
Respondent	:	Director of Public Prosecutions (WA)

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

CDL v The State of Western Australia [2022] WASCA 18
Dartnall v The State of Western Australia [2012] WASCA 251
D'Rozario v The State of Western Australia [2015] WASCA 18
Greenland v The State of Western Australia [2017] WASCA 83
JAW v The State of Western Australia [2016] WASCA 40
Kabambi v The State of Western Australia [2019] WASCA 44
KMT v The State of Western Australia [No 2] [2018] WASCA 49
LTT v The State of Western Australia [2022] WASCA 31
Menmuir v The State of Western Australia [2018] WASCA 13
NE v The State of Western Australia [2021] WASCA 172
Shelley v The State of Western Australia [2014] WASCA 154
Shi v The State of Western Australia [2020] WASCA 197
SMO v The State of Western Australia [2022] WASCA 70
The State of Western Australia v AHD [2021] WASCA 13
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
UGN v The State of Western Australia [2021] WASCA 10
Williams v The State of Western Australia [2018] WASCA 161
WRT v The State of Western Australia [2020] WASCA 68
XMB v The State of Western Australia [2023] WASCA 4

JUDGMENT OF THE COURT:

The appellant seeks leave to appeal against sentences imposed following his convictions after two trials in the District Court.
The first trial occurred in September 2022 and related to an indictment containing four counts of possession of child exploitation material (IND 2189 of 2020). On 28 September 2022, the appellant was found guilty of all four charges.
The second trial occurred in November 2022 and related to an indictment containing 10 counts of sexual offences against children (IND 1475 of 2020). On 24 November 2022, the appellant was found guilty of five counts of indecent dealing with a child under 13 and three counts of sexual penetration of a child under 13. He was acquitted of the remaining two counts (counts 1 and 2).
On 20 January 2023, the appellant was sentenced in respect of IND 1475 to a total effective sentence of 7 years and 6 months' imprisonment. By appeal CACR 14 of 2023, he seeks leave to appeal against that total sentence on the ground that it infringes the first limb of the totality principle.
On 25 January 2023, the appellant was sentenced in respect of IND 2189. He was sentenced to 6 months' imprisonment on count 1, 12 months' imprisonment on each of counts 2 and 3, and 2 years' imprisonment on count 4. Each of those sentences was ordered to be served concurrently, producing a total effective sentence of 2 years' imprisonment. That sentence was ordered to be served cumulatively on the sentence imposed on IND 1475. By appeal CACR 16 of 2023 the appellant seeks leave to appeal against the 2‑year sentence imposed on count 4 on the ground that it is manifestly excessive. He also seeks leave to appeal against the overall total effective sentence of 9 years and 6 months' immediate imprisonment on the ground that it infringes the first limb of the totality principle.
For the reasons that follow, none of the grounds of appeal in respect of either of the appeals has any reasonable prospect of succeeding. Leave to appeal should be refused and the appeal dismissed.

The facts of the offending - IND 1475

Although the trial of IND 1475 occurred second, the appellant was sentenced in respect of that matter first. The sentencing judge, Miocevich DCJ, made findings of fact at the time of sentencing. Those findings are not challenged and can be summarised as follows.
The appellant has had an interest in massaging people since his teenage years. Whilst not a qualified massage therapist, he has frequently given massages to family and friends. Each of the offences occurred in the context of massages given to the female children of family friends.[1]
[1] ts 20 January 2023 3.
In 2016, the appellant met the mother of P and M, children who were both under 10 at the time. He gave massages to their mother and developed a friendship with her. By this means he also came to know P and M.[2]
[2] ts 20 January 2023 3. Note that P, who was assigned female at birth, subsequently came to identify as male after the time of the offending.
On 25 November 2017, the appellant picked up P in his car with a view to dropping P at the house of mutual friends in Gosnells. P was 10 years old at the time. P got into the front seat of the car. The appellant's two children were in the back seat. During the trip the appellant put his hands on P's inner thigh and rubbed it. He moved his hand to the front of P's vagina, where the thighs met. He touched P's vagina, over P's clothing, by rubbing his thumb back and forth. This conduct is the subject of count 3 on the indictment, an offence of indecent dealing.[3]
[3] ts 20 January 2023 3 - 4.
Sometime later the appellant was at the house of the mutual friends in Gosnells with M. M received a massage from the appellant during which nothing untoward occurred. She then went to the TV room, where others were present, and sat on the armrest of a couch, as there was no room anywhere else. The appellant moved behind M and said he would massage her. He commenced with his hand at the top of her hips and slowly went lower. His hand went under her underwear and around her genital area, without touching it. He then touched her in an area just above the clitoris. She asked him to stop but he continued. This conduct constitutes count 4 on the indictment, an offence of indecent dealing.[4]
[4] ts 20 January 2023 4.
After the touching the subject of count 4 occurred M got up to get some food. She then returned to where she had been seated on the couch. The appellant again placed his hand under her underwear from the waistband. She asked him to stop, but he did not. The appellant's hands were inside her underwear and went down such that his fingers stroked between the labial flaps. This conduct is the subject of count 5 on the indictment, an offence of sexual penetration.[5]
[5] ts 20 January 2023 4.
R was a child of the mutual friends who lived at the Gosnells house previously referred to. On one occasion, when R was aged between 7 and 9, she was on her bed, face up, and her head was at the head of the bed. M and P were also in the room, playing on a computer. The appellant offered to give R a massage and she agreed. He commenced by massaging her feet and legs, and then groped her breasts above her shirt. R's mother came in and the appellant stopped and moved his hands quickly to R's shoulders. This conduct is the subject of count 6 on the indictment, an offence of indecent dealing.[6]
[6] ts 20 January 2023 4 - 5.
On another occasion when R was 9 ‑ 10 years old she was sitting on a couch in the living room of the Gosnells house. There were a number of other people in the room. The appellant was seated next to R and asked her if she wanted a massage and she agreed. The appellant began to massage her. She told him to stop but he continued. He moved his hands down into R's shirt and went under the shirt from the top. He grabbed R's breast (count 7) and then moved down towards her hips. She again told him to stop but he continued. He then put his hands in her pants and started rubbing her on the vaginal area (count 8). Count 7 was an offence of indecent dealing. In respect of count 8, the appellant was originally charged with sexual penetration but the jury were not satisfied that penetration occurred and convicted the appellant of the alternative offence of indecent dealing.[7]
[7] ts 20 January 2023 5.
Counts 9 and 10 relate to another child, S, who was of a similar age to the appellant's daughter, with whom she was a friend. The appellant had been friends with S's mother and father for approximately 15 years. S has autism, and in 2019 had been experiencing stomach pains. The appellant also suffered from stomach pains and, in consultation with S's mother, massaged S on a number of occasions in order to relieve that pain.[8]
[8] ts 20 January 2023 5 - 6.
At the time of count 9 S was aged 7. She was at her home when the appellant visited. Whilst she was in the living room the appellant performed a massage on her. As he was massaging her stomach he put his fingers into her vagina, causing some pain. In evidence, S said that it 'hurt a little'. The sentencing judge accepted that the penetration was of short duration and not deep. This conduct is the subject of count 9 on the indictment, an offence of sexual penetration.[9]
[9] ts 20 January 2023 6 - 7.
Count 10 occurred on another occasion when S was at the appellant's house for a sleepover. Concerns had been raised by S's parents about her sleeping over due to her autism and that she had never slept over at anyone's house before. She also had a number of idiosyncrasies, including wanting to still use a potty and not a toilet. On this occasion, S used the potty in the living room whilst the appellant was present. The appellant told S to 'trust me'. He then kissed her on the vulva and performed some action that felt to S like licking. It was for a short duration. Later that day, S told her mother what had happened. This conduct is the subject of count 10 on the indictment, an offence of sexual penetration.[10]
[10] ts 20 January 2023 6.
The allegations relating to S were reported to the police and the appellant was interviewed on 8 July 2019. He denied the allegations of sexual penetration. He did admit that he had kissed S on the cheek and mouth, and that he had had a conversation with her about being her boyfriend. He admitted snuggling with her on the couch and her using the potty in his presence.[11]
[11] ts 20 January 2023 6.
In November 2020, P, M and R discussed their experiences of being assaulted by the appellant, and this resulted in further reports to the police. The appellant declined to participate in a video record of interview in relation to those other incidents.[12]
[12] ts 20 January 2023 6 - 7.

Victim Impact Statements

Victim impact statements from P, M, S and the mother of P and M were provided to the sentencing judge. In the case of S and P their statements were completed on their behalf by their mothers. Each of those statements referred to the profound emotional and psychological effects of the offending. This has included depressed mood, weight loss, anxiety and impact on the ability to socialise. Friendships and the education of the victims have been adversely affected. The statements of P and M speak of their discomfort in being touched as a result of the offences. P, M and S have all had counselling to cope with the effects of the offending.

The facts of the offending - IND 2189

The sentencing judge in relation to IND 2189, Barbagallo DCJ, also made findings of fact at the time of sentencing. Those findings are not challenged and can be summarised as follows.
On 8 July 2019, when police were investigating the appellant in relation to the allegation of sexual offending against S, they initially confronted the appellant at his place of work in Canning Vale. The appellant was in possession of a blue HTC mobile telephone, which was seized by the police.[13]
[13] ts 25 January 2023 3 - 4.
The appellant was conveyed from his place of work to his home in Innaloo. A search of the house resulted in the seizure of a number of computer devices found in the appellant's bedroom. Three of those devices were relevant, being a silver ASUS tablet, a black Centurion desktop computer and a Western Digital internal hard drive.[14]
[14] ts 25 January 2023 4.
The four seized devices were analysed by the digital forensic section of the police and child exploitation material was located. This material was graded according to the following categorisation:
Category 1images depicting children in sexually suggestive poses whilst naked
Category 2images depicting children in non‑penetrative sexual activity with other children or solo masturbation
Category 3images depicting children in non‑penetrative sexual activity with an adult and/or children
Category 4images depicting children engaged in penetrative sexual activity with an adult or children, including intercourse, cunnilingus or fellatio
Category 5images depicting children in sexual penetration with an animal or involving sadism or humiliation.[15]
[15] ts 25 January 2023 4.
On the blue HTC mobile telephone, police located eight images and 14 videos comprising child exploitation material. Three images and four videos were in category 1, and five images and 10 videos were in category 4. This material was the subject of count 1 on the indictment.[16]
[16] ts 25 January 2023 4.
On the silver ASUS tablet, police located 293 images and two videos of child exploitation material. 273 of the images were in category 1, three images were in category 3, one video and five images were in category 4, and 12 images and one video were in category 5. This material was the subject of count 2 on the indictment.[17]
[17] ts 25 January 2023 4.
On the black Centurion desktop computer police located 4,553 images and two videos of child exploitation material. The images were all in category 1, and both videos were in category 4. This material was the subject of count 3 on the indictment.[18]
[18] ts 25 January 2023 4.
On the Western Digital internal hard drive police located 30,584 images and 313 videos of child exploitation material. 120 videos and 27,899 images were in category 1, 120 videos and 802 images were in category 2, seven videos and 625 images were in category 3, 56 videos and 675 images were in category 4, and 10 videos and 583 images were in category 5. This material was the subject of count 4 on the indictment.[19]
[19] ts 25 January 2023 4.
The total number of items was 35,435 images and 323 videos. Broadly, the child exploitation material depicted girls in the age range of 8 ‑ 13 years. All of the material on the mobile telephone, the silver ASUS table and the black Centurion computer was also located on the internal hard drive. That is, the child exploitation material contained on the devices the subject of counts 1 ‑ 3 were copies of files contained on the internal hard drive which is the subject of count 4.[20]
[20] ts 25 January 2023 5.
The sentencing judge was satisfied that the appellant commenced downloading the child exploitation material at least on or about 24 March 2016 when he downloaded a video and saved it to the Centurion desktop computer. After that time the appellant searched and downloaded child exploitation material onto his devices in 2016, 2017, 2018 and 2019. He searched for or downloaded child exploitation material on at least five occasions, although it could have been significantly more. He copied files from one device to another. He accessed and viewed the material after it was downloaded. The contact child sex offences the subject of IND 1475 occurred during the period that the appellant was searching for, downloading, copying and accessing the child exploitation material.[21]
[21] ts 25 January 2023 5.
When spoken to by the police, the appellant denied any knowledge of the child exploitation material found on his devices. He maintained that denial at trial.[22]
[22] ts 25 January 2023 6.

Personal circumstances

The appellant was between 36 and 40 years of age at the time of the offences. He was 44 years of age at the time of sentencing. He is the youngest of two children from his parents' union. He was born in Carnarvon but moved with his parents to Geraldton when he was a young child and grew up there. He has described his childhood in positive terms.[23]
[23] ts 25 January 2023 7.
When the appellant was aged 20 he moved to Perth. His parents separated when he was aged 22. The separation impacted on him at the time, however he learned to cope with his feelings about it. He still has a strong relationship with his mother. His family continue to support him.[24]
[24] ts 25 January 2023 7.
The appellant is also supported by his wife of 22 years, with whom he has two children, a 15‑year‑old son and an 11‑year‑old daughter. Whilst the children are aware that the appellant is currently in prison, they have been unable to visit as a result of directions from the Department of Community Protection.[25]
[25] ts 25 January 2023 7 - 8.
The appellant completed high school to year 12. He then undertook a university course in biotechnology. He completed two years of the university course before dropping out due to suffering memory issues. He then completed a diploma in computing at TAFE. He worked in the computing field for a few years, before finding that he did not enjoy it. He has worked as a labourer, delivery driver and storeman for the past 19 years. He has been the sole financial provider for his family, and they have struggled without his income.[26]
[26] ts 25 January 2023 8.
The appellant has been diagnosed with chronic fatigue syndrome, gall bladder issues and abdominal pain and migraines, which he manages with diet and exercise. He was diagnosed with attention deficit hyperactivity disorder (ADHD) when he was aged 12. This condition has been managed with medication and engagement with a private psychiatrist, a clinical psychologist and his general practitioner. He has also suffered from anxiety and depression. He has never had any issues with alcohol consumption or illicit substances.[27]
[27] ts 25 January 2023 8.
A psychologist's report noted that assessment of the appellant was limited by his stance that he had been wrongfully convicted. The appellant described himself to the psychologist as 'neurodivergent' and explained that what he meant by this was that his thinking was different from normal. He said that changes in routine caused him anxiety, that he had a poor memory and that he was not proficient in inferring what others were thinking. In describing the appellant, the psychologist said he had a situational/inadequate typology. People with such a typology are typically seen by others as being withdrawn and eccentric and target children because they are seen as non-threatening. It is not uncommon for such people to be attracted to both adults and children, and to view their victims as adult-like. Such offenders tend to turn to children as a sexual substitute, commonly when under stress, and their victims are usually chosen due to their availability. The appellant was assessed as being at average risk of re-offending.[28]
[28] ts 25 January 2023 8 - 9.

The appellant has no prior criminal record.

Sentencing remarks - IND 1475

The appellant was sentenced on IND 1475 by Miocevich DCJ on 20 January 2023. As no express errors by the sentencing judge are alleged, it is not necessary to refer to the sentencing remarks in detail.
His Honour noted that the only mitigating factors were that the appellant has been gainfully employed for his whole life and has been a contributing member of society. Although the appellant has no prior criminal record, his Honour was unable to conclude that the contact offences were an aberration due to the number of those offences and the period of time over which they occurred.[29]
[29] ts 20 January 2023 11.
His Honour recognised that the main sentencing considerations for offences of this kind are general deterrence, personal deterrence, punishment and protection of the community, in particular vulnerable young children. He concluded that terms of immediate imprisonment were the only appropriate sentence, and imposed the following sentences:[30]
Count 312 months' imprisonment
Count 412 months' imprisonment
Count 53 years' imprisonment
Count 66 months' imprisonment
Count 712 months' imprisonment
Count 818 months' imprisonment
Count 94 years' imprisonment
Count 104 years' imprisonment
[30] ts 20 January 2023 11 - 13.
His Honour referred to the totality principle and the need to ensure that the total effective sentence bears a proper relationship to the overall criminality, viewed in its entirety and having regard to the circumstances of the case, including those referable to the appellant personally. His Honour concluded that a total effective sentence of 7 years and 6 months' immediate imprisonment was appropriate. He achieved this by ordering that count 5 be the head sentence, count 6 be reduced from 12 months to 6 months and be made cumulative, and count 9 also be made cumulative. All other sentences were ordered to be served concurrently.

Sentencing - IND 2189

On 25 January 2023, Barbagallo DCJ sentenced the appellant on IND 2189. Similarly, no express error is alleged and it is unnecessary to refer to the sentencing remarks in detail.
Her Honour noted that possessing material of this type was not a victimless crime. She had watched a representative sample of the material and said that the children were in the 8 ‑ 13‑year age category and were engaged in sexual activity which was disgusting, degrading and at times physically harmful, undertaken to satisfy the desires of people like the appellant who create a demand for it. Her Honour noted that this kind of demand encourages the exploitation, humiliation and corruption of children, and that the adverse impact it can have on them is incalculable.[31]
[31] ts 25 January 2023 6 - 7.
Due to the appellant's continued denials of the offending, the sentencing judge was left to infer the reasons why the appellant had committed the offences. She was satisfied beyond reasonable doubt that the appellant was motivated to commit the offences because he had a sexual interest in children. It was noted that the contact child sex offences on the other indictment confirmed that the appellant had acted upon that sexual interest. His continued denial of that interest made him a real risk of reoffending in a similar way.[32]
[32] ts 25 January 2023 7.
Her Honour noted that the appellant was not to be punished for taking the matter to trial, but he could not receive the credit that he would have received had he pleaded guilty. In her Honour's view, the prosecution case was overwhelming and the manner in which the case was litigated showed that the appellant has no remorse for his offending.[33]
[33] ts 25 January 2023 9.
As to the prospects of rehabilitation, her Honour noted that at the time the offences were committed, the appellant had a stable home life and no issues with alcohol or illicit substances. He did report some issues with his mental health, but this was stabilised with medication. The fact that the appellant continued to deny criminal responsibility and was supported by his wife and mother, led to a conclusion that his family was unlikely to act in a protective way to assist in reducing his risk of reoffending. The factors impacting on his offending were likely to remain unaddressed. This meant that there would remain a real risk of reoffending in a similar way.[34]
[34] ts 25 January 2023 9.
In relation to the seriousness of the offending, her Honour listed the following factors.[35]
1.The quantity of the child exploitation material was significant.
2.Some of the material was classified in the worst category of child exploitation material, including material that displayed a significant level of perversion or debauchery.
3.The appellant took possession by downloading the material on numerous occasions and copying it across to three other devices. This was indicative of a person who has a real and significant interest in the material.
4.The lengthy period over which the offending occurred, being a three‑year period of consistent interaction with child exploitation material files.
5.The children involved were vulnerable and the appellant was content to prey on that vulnerability in order to take possession of this material in the way that he did.
6.The offending ended when police searched the appellant's house and seized the devices. This was not a case of the appellant voluntarily desisting.
[35] ts 25 January 2023 2 - 3.
Her Honour concluded that the offending was of a very serious type and not at the lowest or lower end of the scale. There was nothing unusual or extraordinary about the offending. Her Honour recognised that the major sentencing consideration was general deterrence and that the court's duty was to protect vulnerable children. The purpose of imposing deterrent sentences is to eliminate or reduce demand for and supply of child exploitation material. Because of the weight to be given to general deterrence, mitigating factors personal to the appellant, including his prior good character, are afforded less weight.[36]
[36] ts 25 January 2023 11.
Her Honour imposed the following sentences:
Count 16 months' imprisonment
Count 212 months' imprisonment
Count 312 months' imprisonment
Count 424 months' imprisonment
She considered count 4 to be the most serious offence and the sentence of 24 months imposed on count 4 was nominated as the head sentence. The sentences imposed on the other three counts were ordered to be served concurrently. Thus, the total effective sentence was 2 years' imprisonment. The appellant was made eligible for parole. [37]
[37] ts 25 January 2023 12 - 13.
Her Honour then turned to the question of whether the sentence imposed should be made cumulative on that imposed by Miocevich DCJ on IND 1475. Her Honour said that she had taken into account factors such as that the offending on both indictments had overlapped. However, her Honour said that the offences were separate and distinct, involving the vulnerability of numerous children, and concluded that the sentence of 2 years' imprisonment should be served cumulatively. Thus, the overall total effective sentence was one of 9 years and 6 months' imprisonment.[38]
[38] ts 25 January 2023 12.

Grounds of appeal

On CACR 14 there is one ground of appeal as follows:[39]
1.The total sentence imposed was disproportionate to the total criminality having regard to the circumstance[s] of the offending, the personal circumstances of the appellant and sentencing standards.
[39] Appellant's case dated 13 March 2023 2.
On CACR 16 there are two grounds of appeal as follows:[40]
1.The sentence on count 4 of the indictment of 2 years' imprisonment was manifestly excessive, having regard to the circumstances of the offence, the personal circumstances of the appellant and sentencing standards.
2.The total sentence imposed was disproportionate to the total criminality having regard to the circumstance[s] of the offending, the personal circumstances of the appellant and sentencing standards.
[40] Appellant's case dated 13 March 2023 2.

Relevant legal principles

An allegation that a sentence is manifestly excessive, or that a total sentence is disproportionate to the total criminality, is an allegation of implied error in the exercise of the sentencing discretion by the sentencing judge. The legal principles relevant to an appeal asserting implied error are well established and have been summarised in Kabambi v The State of Western Australia:[41]
(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.
[41] Kabambi v The State of Western Australia [2019] WASCA 44 [21].
The primary sentencing considerations for sexual offences against children are appropriate punishment of the offender and personal and general deterrence, having regard to the need to protect vulnerable children. It has been recognised that the fact that an offender is otherwise of good character has little weight because offences of this kind, until revealed, generally do not impact on other people or upon their perception of the offender.[42]
[42] The State of Western Australia v PJW [2015] WASCA 113 [34] - [35]; WRT v The State of Western Australia [2020] WASCA 68 [65] - [66].
There is no tariff for sexual offences against children because of the great variation that is possible in the circumstances of the offending and personal circumstances of offenders. The sentence to be imposed in a particular case depends on the individual facts and circumstances, having regard to the maximum penalty and all relevant sentencing factors.[43]
[43] The State of Western Australia v AHD [2021] WASCA 13 [56] - [58] (Buss P, Quinlan CJ & Mitchell JA relevantly agreeing).
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 such material is readily available via the internet and may be obtained, possessed and distributed in digital form across the world and in multiple jurisdictions. Offences of this nature are often difficult to detect and investigate. For these reasons the major sentencing consideration is general deterrence.[44]
[44] The State of Western Australia v McCarthy [2014] WASCA 210; (2014) 246 A Crim R 86 [71] ‑ [73], [76] (Mazza JA, McLure P & Buss JA agreeing).
The value of comparable cases is limited. Each case turns on its own particular facts. Sentencing is necessarily a discretionary exercise. Reference to cases which may have some similar features and that attracted sentences lower (or higher) than that imposed on the appellant do not in themselves establish that the sentence is unreasonable or unjust. The sentences imposed in other cases act as a yardstick and do not set the boundaries for the exercise of sentencing discretion. A sentence will only be manifestly excessive, or a total sentence will only infringe the first limb of the totality principle, if it can be shown to be plainly unreasonable or unjust.

Merits of the appeal - CACR 14

The maximum penalty for indecently dealing with a child under 13, contrary to s 320(4) of the Criminal Code (WA) (Code), is 10 years' imprisonment. The maximum penalty for sexually penetrating a child under the age of 13 years, contrary to s 320(2) of the Code, is 20 years' imprisonment.
In the present case the seriousness of the contact sex offences was reflected in the fact that there were four victims and that the offences involved significant breaches of trust. In each case the appellant had access to the children because he was a trusted friend of the family. He obtained access by causing the families to believe that he was providing massages for therapeutic purposes. He used this access, and the opportunity to touch the children without arousing suspicion, to satisfy his own perverted sexual desires. Whilst no physical or verbal coercion was involved, none was needed. On three occasions the touching advanced to actual sexual penetration. The victims were vulnerable having regard to their age. S was particularly vulnerable due to her autism.
As regards the appellant's personal factors, there was limited mitigation. The appellant did not have the benefit of pleas of guilty, he maintained his innocence and there was a lack of remorse and guarded prospects for rehabilitation.
The appellant has referred to the following cases as being comparable in respect of CACR 14: SMO v The State of Western Australia;[45] KMT v The State of Western Australia [No 2];[46] JAW v The State of Western Australia;[47] Williams v The State of Western Australia;[48] Menmuir v The State of Western Australia;[49] and Greenland v The State of Western Australia.[50]
[45] SMO v The State of Western Australia [2022] WASCA 70.
[46] KMT v The State of Western Australia [No 2] [2018] WASCA 49.
[47] JAW v The State of Western Australia [2016] WASCA 40.
[48] Williams v The State of Western Australia [2018] WASCA 161.
[49] Menmuir v The State of Western Australia [2018] WASCA 13.
[50] Greenland v The State of Western Australia [2017] WASCA 83.
The apparent purpose in referring to these cases is that they each resulted in a total sentence less than the 7 years and 6 months' imprisonment that the appellant received on IND 1475. He seeks to use this sample of cases to establish that the total sentence imposed on him is plainly unreasonable or unjust. However, most of the cases have significant points of difference which undermine their utility as comparable cases.
In SMO there was a single victim, and the offender was convicted of six counts, only one of which involved an act of penetration. In KMT there was a single victim, and the offender was convicted of five counts of sexual offences involving a child under the age of 16 who was a lineal relative. Three of the counts in KMT involved acts of penetration. In Williams there were three victims, and the offender was convicted of seven offences, none of which involved acts of penetration. The offender in Williams was 18 or 19 years old when the first offences occurred, and youth was a powerful mitigating factor. In Menmuir there was one victim, and the offender was convicted on his pleas of guilty of 13 counts, nine of which were sexual offences against a child over the age of 13 and under the age of 16. The offender in that case received a discount of 25% for his pleas of guilty.
The remaining case, JAW, whilst comparable, does not assist the appellant. In that case there were two victims, and the offender was convicted of eight counts of indecently dealing with a child under 13, five counts of sexually penetrating a child under 13 and one count of possession of child pornography. The total effective sentence of 7 years' imprisonment does not support the proposition that the appellant's total effective sentence on IND 1475 was plainly unreasonable or unjust.
There are other cases dealing with sexual offences against children that are broadly comparable in terms of the number and type of offences and which have attracted total effective sentences higher than that imposed on the appellant. In this regard we have considered NE v The State of Western Australia;[51] XMB v The State of Western Australia;[52] UGN v The State of Western Australia;[53] and LTT v The State of Western Australia[54] and other similar cases referred to in those cases.
[51]NE v The State of Western Australia [2021] WASCA 172.
[52]XMB v The State of Western Australia [2023] WASCA 4.
[53] UGN v The State of Western Australia [2021] WASCA 10.
[54] LTT v The State of Western Australia [2022] WASCA 31.
Having regard to the maximum penalties for the offences, the seriousness of the offending conduct (including the number of offences and the number of victims), the personal circumstances of the appellant and sentences imposed in broadly comparable cases, it is not reasonably arguable that the total effective sentence of 7 years and 6 months' imprisonment imposed on IND 1475 was plainly unreasonable or unjust.

Merits of the appeal - CACR 16

The maximum penalty for possession of child exploitation material, contrary to s 220 of the Code, is 7 years' imprisonment.
In respect of the child exploitation material offences committed by the appellant the seriousness is reflected in the very large number of images and videos, the period of time over which that material was collected and the nature of that material. It included numerous images and videos in the most serious categories. Whilst there was no evidence that the appellant had engaged in this activity for commercial reward, the factors referred to place this into a serious category of offending of this type.

As regards the appellant's personal circumstances, there was little by way of mitigation. The appellant did not have the benefit of pleas of guilty, he maintained his innocence and there was a lack of remorse and guarded prospects for rehabilitation.
The appellant has referred to the following cases as being comparable in respect of CACR 16: JAW;[55] Shi v The State of Western Australia;[56] D'Rozario v The State of Western Australia;[57] and CDL v The State of Western Australia.[58]
[55] JAW v The State of Western Australia [2016] WASCA 40.
[56] Shi v The State of Western Australia [2020] WASCA 197.
[57] D'Rozario v The State of Western Australia [2015] WASCA 18.
[58] CDL v The State of Western Australia [2022] WASCA 18.
Most of the cases referred to by the appellant are not meaningfully comparable and do not assist him. In JAW the relevant offence related to two images. In Shi there was a single count relating to 78 videos and 58 images and the offender pleaded guilty. In D'Rozario the relevant offence related to an unspecified number of photographs of a single victim and the offender pleaded guilty.
The case which is most similar to that of the appellant is CDL. In that case the relevant offence related to 26,425 videos and images, some of which fell into the highest categories, and the offender pleaded guilty to that count (albeit at a late stage). The offender was also dealt with for a number of other child sexual offences and received a total effective sentence of 12 years and 6 months' imprisonment. The sentencing judge in CDL determined that the appropriate sentence for the relevant count was 3 years' imprisonment but reduced that sentence to 12 months' imprisonment for totality reasons. That result provides no support for the appellant's argument.
There are other cases dealing with possession of child exploitation material in which sentences comparable to that imposed on the appellant have been imposed. In this regard we have considered Shelley v The State of Western Australia[59] and Dartnall v The State of Western Australia[60] and the other similar cases referred to in those cases.
[59] Shelley v The State of Western Australia [2014] WASCA 154.
[60] Dartnall v The State of Western Australia [2012] WASCA 251.
Having regard to the maximum penalty for the offence of possession of child exploitation material, the seriousness of the offending conduct in this case (including the number of images and the nature of those images), the personal circumstances of the appellant and sentences imposed in broadly comparable cases, it is not reasonably arguable that the sentence of 2 years' imprisonment imposed on count 4 on IND 2189 was manifestly excessive.
As to whether the overall total effective sentence of 9 years and 6 months' imprisonment infringed the first limb of the totality principle, the offending on both indictments occurred within the same time period but involved separate and distinct conduct. In the circumstances cumulative sentences were appropriate, subject to the total overall effective sentence being proportional to the totality of the offending conduct.
Having regard to the maximum penalties for all of the offences, the seriousness of the offending conduct taken as a whole, the personal circumstances of the appellant and sentences imposed in broadly comparable cases, it is not reasonably arguable that the overall total effective sentence of 9 years and 6 months' imprisonment is plainly unreasonable or unjust.

Conclusion

For the above reasons, none of the grounds of appeal on CACR 14 or CACR 16 has a reasonable prospect of succeeding. Leave to appeal should be refused and each appeal dismissed.

Orders

CACR 14 of 2023

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

CACR 16 of 2023

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

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
JS
Associate to the Honourable Justice Hall
2 MAY 2023