Hodges v The State of Western Australia
[2025] WASCA 136
•12 SEPTEMBER 2025
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: HODGES -v- THE STATE OF WESTERN AUSTRALIA [2025] WASCA 136
CORAM: MITCHELL JA
VAUGHAN JA
HALL JA
HEARD: 14 MARCH 2025
DELIVERED : 12 SEPTEMBER 2025
FILE NO/S: CACR 69 of 2024
BETWEEN: DEBORAH JANE HODGES
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram: BLACK DCJ
File Number : IND 689 of 2023
Catchwords:
Criminal law - Appeal against sentence - Appellant convicted on her plea of guilty of one count of having a sexual relationship with a child under the age of 16 years contrary to s 321A of the Criminal Code - Whether sentencing judge erred in finding there was a serious breach of trust - Whether sentence of 6 years 10 months' imprisonment is manifestly excessive - Customary sentencing standards
Legislation:
Criminal Code (WA), s 321, s 321A
Result:
Appeal dismissed
Category: B
Representation:
Counsel:
| Appellant | : | K Gorski |
| Respondent | : | G N Beggs |
Solicitors:
| Appellant | : | Legal Aid |
| Respondent | : | Director of Public Prosecutions |
Case(s) referred to in decision(s):
AJ v The State of Western Australia [2016] WASCA 13
Aung v The State of Western Australia [2022] WASCA 175
Barbaro v The Queen [2014] HCA 2; (2014) 253 CLR 58
Bugmy v The Queen [2013] HCA 37; (2013) 249 CLR 571
Cairns v The State of Western Australia [2015] WASCA 198
CDL v The State of Western Australia [2022] WASCA 18
CJ v The State of Western Australia [2009] WASCA 42
Coulter v The State of Western Australia [2019] WASCA 215
Coutts v The State of Western Australia [2023] WASCA 38
D v The State of Western Australia [2009] WASCA 155
Deering v The State of Western Australia [2007] WASCA 212
Dickens v The Queen [2004] WASCA 179; (2004) 147 A Crim R 343
Director of Public Prosecutions (Vic) v Dalgliesh (A pseudonym) [2017] HCA 41; 262 CLR 428
Drage v The State of Western Australia [2021] WASCA 6
Duncan v The State of Western Australia [2018] WASCA 154
EKO v The State of Western Australia [2020] WASCA 88
GNO v The State of Western Australia [2025] WASCA 111
Greenfield v The State of Western Australia [2019] WASCA 29
GUE v The State of Western Australia [2022] WASCA 121
Hili v The Queen [2010] HCA 45; (2010) 242 CLR 520
House v The King [1936] HCA 40; (1936) 55 CLR 499
JAF v The State of Western Australia [2008] WASCA 231
JDF v The State of Western Australia [2016] WASCA 221
Kabambi v The State of Western Australia [2019] WASCA 44
KMB v The State of Western Australia [2010] WASCA 212
Lee v The State of Western Australia [2019] WASCA 137
LFG v The State of Western Australia [2015] WASCA 88; (2015) 48 WAR 178
Liyanage v The State of Western Australia [2017] WASCA 112; (2017) 51 WAR 359
Marshall v The State of Western Australia [2015] WASCA 156; (2015) A Crim R 99
Mills v The State of Western Australia [No 2] [2017] WASCA 52; (2017) 265 A Crim R 484
MRW v The State of Western Australia [2022] WASCA 98
Munda v The State of Western Australia [2013] HCA 38; (2013) 249 CLR 600
MYB v The State of Western Australia [2024] WASCA 53
Neumann v The State of Western Australia [2013] WASCA 70
NSA v The State of Western Australia [2023] WASCA 53
OTR v The State of Western Australia [No 2] [2022] WASCA 123
Poduti v The State of Western Australia [2011] WASCA 169
Pomana v The State of Western Australia [2020] WASCA 204
Pureau v The State of Western Australia [2017] WASCA 115
R v Hunt [2002] WASCA 324
R v Kilic [2016] HCA 48; (2016) 259 CLR 256
R v Pham [2015] HCA 39; (2015) 256 CLR 550
Rhodes v The State of Western Australia [2022] WASCA 168; (2022) 103 MVR 90
Salkilld v The State of Western Australia [2017] WASCA 168
The State of Western Australia v Dorsett [2025] WASCA 13
The State of Western Australia v Doyle [2017] WASCA 207
The State of Western Australia v Edwins [2025] WASCA 73
The State of Western Australia v Lee [2008] WASCA 150
The State of Western Australia v MGA [2024] WASCA 108
The State of Western Australia v MGT [2024] WASCA 136
The State of Western Australia v SJH [2010] WASCA 40; (2009) 200 A Crim R 228
The State of Western Australia v WRH [2025] WASCA 29
The State of Western Australia v Zhuang [2021] WASCA 56
Trompler v The State of Western Australia [2008] WASCA 265
Tulloh v The Queen [2004] WASCA 169; (2004) 147 A Crim R 107
Wallam v The State of Western Australia [2012] WASCA 115
Wong v The Queen [2001] HCA 64; (2001) 207 CLR 584
XBX v The State of Western Australia [2024] WASCA 43
JUDGMENT OF THE COURT:
Overview
This is an offender appeal against sentence.
The appellant was convicted, on her plea of guilty, of a single count that, between 20 April 2004 and 30 June 2005, she had a sexual relationship with HR, a child under the age of 16 years, contrary to the then s 321A(3) of the Criminal Code (WA). The maximum penalty for that offence was 20 years' imprisonment. On 8 April 2024 Black DCJ sentenced the appellant to 6 years and 10 months' immediate imprisonment. The appellant was made eligible for parole.
The appellant seeks leave to appeal on two grounds of appeal, namely:
1.The sentencing judge erred in fact or law by finding that there was a serious breach of trust by the appellant and the circumstances of her offending had little distinction from circumstances where a teacher offends against their student (ground 1).
2.The sentence imposed was manifestly excessive (ground 2).
The appeal notice was filed more than two months out of time. Accordingly, the appellant requires an extension of time to appeal. The application for an extension of time to appeal is supported by an affidavit of a solicitor employed by Legal Aid (the solicitor not being counsel who appeared for the appellant at the appeal hearing). The affidavit establishes that the bulk of the delay in filing the appeal notice is attributable to the solicitor rather than the appellant. In the circumstances the application for an extension of time to appeal is bound up with the merits of the appeal.
For the reasons that follow, we would refuse leave to appeal on ground 1 and dismiss ground 2. The application for an extension of time to appeal will be granted because there should be leave to appeal on ground 2.
The circumstances of the offending
At the relevant time, for the purpose of s 321A of the Code as it then provided, a person had a sexual relationship with a child under the age of 16 years if:
that person, on 3 or more occasions each of which is on a different day, does an act in relation to the child which would constitute a prescribed offence. (Code s 321A(1))
The term 'prescribed offence' was defined in s 321A(11) of the Code. It included, relevantly, sexually penetrating a child between 13 and 16 years of age (Code s 321(2)) or indecently dealing with a child between 13 and 16 years of age (Code s 321(4)). Those offences attracted maximum penalties of 14 years' imprisonment and 7 years' imprisonment respectively (assuming that the offender was over 18 years old and the child was not under the care, supervision or authority of the offender) (Code s 321(7) and (8)).
At the time of the offending, the appellant was living in a regional location in Western Australia. She was 30 to 31 years old (although at one point the sentencing judge says that the appellant committed the offences when aged 29 to 30 ‑ ts 77). The appellant was married and had a teenage son. The appellant's husband was often away for work. The appellant's son went to a local high school and became friends with HR, the victim. HR was approximately the same age as the appellant's son. The two families became close as the boys' friendship continued. HR would often go to the appellant's house to visit his friend.
After some time, the appellant began to show favouritism towards HR. Around Easter 2004, after HR had been hospitalised, the appellant and HR began texting each other. The sentencing judge found that it was patently obvious that the appellant groomed HR (ts 68 ‑ 69). In any case, the texting led to sexualised messaging between the appellant and HR. One weekend, when HR was due to go to the appellant's house to stay with the appellant's son, the appellant messaged HR saying she was going to kiss him while he was at her house. That in fact occurred. More sexual activity followed over a period of some seven to nine months during 2004 and 2005.
The State relied on six particularised incidents. In summary they consisted of:
1.A 30‑second tongue kiss instigated by the appellant (this being the first sexual activity between the appellant and HR following the message that the appellant intended to kiss HR). The sentencing judge found that this sexual offending was premeditated and preplanned (ts 68).
2.Penile‑vaginal sexual intercourse that took place a few weeks later. HR was at the appellant's house; the appellant's husband was away. HR and various friends drank alcohol, obtained by the appellant, and smoked cannabis. After the other boys fell asleep the appellant instigated sexual intercourse with HR that continued until ejaculation. A further act of sexual intercourse followed.
3.Another occasion in 2004 which involved penile‑vaginal sexual intercourse and mutual oral sex in the appellant's bedroom. This was repeated later that day and the following morning.
4.Again in 2004, while HR was in the appellant's house, the appellant and HR had penile‑vaginal sexual intercourse followed by the appellant performing oral sex on HR. The appellant said: 'Notice my mouth is better than my pussy'. The appellant performed oral sex on HR until he ejaculated.
5.During the 2004 Christmas school holidays, after HR had consumed alcohol and cannabis in excess at the appellant's house, the appellant and HR engaged in penile‑vaginal sexual intercourse. The appellant's nephew walked in on the appellant and HR having sexual intercourse. After the nephew left, the appellant and HR continued their sexual activity.
6.In March 2005 the appellant brought an end to the relationship saying that she thought that HR could not give her enough of his time. However, in May or June of 2005, when HR was 15 years old, he went to the appellant's house to see his friends. The appellant gave HR alcohol and cannabis. HR became very intoxicated. The appellant asked him multiple times to have sex with her. HR refused. However, later HR awoke in the middle of having sexual intercourse with the appellant in her bedroom. (The State did not allege a lack of consent but said that the appellant was aware that HR no longer wished to be in a sexual relationship with her and the appellant took advantage of HR's intoxication. The sentencing judge characterised the circumstances of the offending as being one of 'reluctant acquiescence' (ts 70).)
HR's stepmother was friends with the appellant. She became aware of the sexual activity between the appellant and HR during the 2004 Christmas school holidays (ie well after the sexual activity commenced). The stepmother condoned the sexual activity and actively encouraged it, facilitating opportunities for the appellant and HR to meet.
After the first time the appellant and HR had sexual intercourse, the appellant and HR went on to engage in sexual activity every weekend when the appellant's husband was away. HR never wore a condom. HR estimated, and the sentencing judge found as fact, that the appellant and HR engaged in sexual activity ‑ mostly sexual intercourse ‑ around 100 times over the relevant period (ts 72, 82). Very often, on the occasions where sexual intercourse took place, there were other kinds of sexual activity including sexual touching. The sentencing judge found that the sexual offending persisted over a seven‑to‑nine-month period during 2004 and into 2005 (ts 67, 80, 82).
HR was 14 years old when the sexual offending began; he was 15 years old when it finished. The appellant was 16 years older than HR. At all times the appellant was aware of HR's lack of maturity.
The appellant was not charged with the offending for many years. The indictment was only signed on 23 July 2023. The papers before the court do not disclose when HR brought the offending to the attention of the authorities. However, HR provided a victim impact statement for the purpose of the appellant's sentencing. The victim impact statement is harrowing. It is beyond doubt that, for many years, the offending has had a significant impact on HR. The victim impact statement details difficulties experienced by HR in relation to his self‑esteem, depression and anxiety; use of alcohol and prohibited drugs; difficulties in HR's relationships; and HR's inability to trust other people and authority figures as a result of his interactions with the appellant.
Those trust issues continue to the present day insofar as HR is now himself a father with sons.
The appellant's personal circumstances
The appellant was 51 years old at the time she was sentenced.
The sentencing judge made detailed findings on the appellant's background and personal circumstances based on a psychological report dated 26 March 2024. Her Honour referred to the appellant as having a 'distorted and terrible childhood' (ts 79).
The appellant lived with her family in a regional town until she was 12 years old. Her parents argued, and frequently abused alcohol, but were not violent towards each other. However, the appellant's parents were frequently absent from the family home for long periods. The sentencing judge described the appellant as, by any measure, a 'neglected child' (ts 76). The appellant suffered physical violence. The appellant was also the victim of sexual abuse, perpetrated upon her by her father, when she was around 9 or 10 years old. At the age of about 13 years old the appellant began to rebel. The appellant's mother took the appellant to child welfare services.
The appellant became a ward of the State, living in hostels in various regional locations, and remained a ward of the State from about 13 to 16 years of age.
At the age of 16 years old the appellant achieved independence. She formed a relationship and had a child (this child being the child who became friends with HR). The appellant was diagnosed with post‑natal depression and the relationship ended. Subsequently, the appellant was involved in another relationship. A child was born to that relationship; however, the appellant no longer has contact with that child. The appellant eventually married the man who was her husband at the time of the offending. That relationship began when the appellant was 21 years old. The relationship produced two children. It ended in 2022. The appellant's former husband, and one of her children from this third relationship, provided character references. Those character references speak positively of the appellant's contribution to society in more recent times, as do two other character references from persons who were co‑workers of and became friends with the appellant.
The appellant's husband worked away from home for long periods when the offending occurred.
The appellant first tried alcohol when she was 13 years of age. Her use became problematic in 2002, a few years before the offending. There was evidence of other drug‑use at that time. Alcohol and drugs remained a problem in the appellant's life since that time.
The sentencing judge summarised the appellant's personal circumstances in this way:
The offender had an extremely abusive and deprived upbringing. This extreme abuse and abandonment was such that the offender grew up without the kind of protective factors that every child deserves. And she grew up in circumstances where she was abandoned and left to fend for herself. She had no role models and no way of being able to properly place herself in the world or determine the way in which she ought [to] conduct herself. (ts 78)
The sentencing judge characterised these matters as 'Bugmy factors'[1] (ts 75).
[1] Referring to Bugmy v The Queen [2013] HCA 37; (2013) 249 CLR 571.
Her Honour found that there was no evidence that these 'background matters' were directly causative of the appellant's offending (ts 75, 79). They were, however, relevant matters to take into account in sentencing the appellant (ts 79). The sentencing judge considered that there was a clear and significant link between the trauma sustained by the appellant and the offending conduct. By reason of these matters, in the sentencing judge's view, the appellant was 'more vulnerable generally' and 'more likely to make bad decisions', particularly when it came to relationships and sexual behaviour (ts 78).
The sentencing remarks
The sentencing judge recounted the circumstances of the offending (ts 68 ‑ 71) and the appellant's personal circumstances (ts 70, 75 ‑ 79). Her Honour mentioned two specific matters which arose for consideration because of the parties' sentencing submissions. The second matter is the subject of ground 1. We will defer describing it until we discuss ground 1. The first was whether the sentencing exercise should be treated any differently because the offender was a female and the victim was a male. The sentencing judge took the view that this made 'no difference whatsoever' (ts 71). That conclusion is not challenged in the appeal.
The sentencing judge made a number of observations while reflecting on the appellant's offending:
1.While the appellant and HR engaged in sexual activity ‑ mostly sexual intercourse ‑ about 100 times, there was only one charge carrying a maximum penalty of 20 years (ts 72).
2.The appellant would have been aware that a young teenage boy's capacity to act soundly and rationally would be affected by hormonal changes during adolescence (ts 70).
3.The appellant must have known that the provision and consumption of alcohol and cannabis to and by HR would have had a real and significant impact on HR, impairing his judgment (ts 70).
4.The appellant was aware that it was entirely inappropriate and wrong to take advantage of a boy who was only in her house because he was visiting his same‑age friend (ts 70 ‑ 71).
5.The sixth particularised incident, as summarised at [10](6) above, was the most serious, as HR had made it plain that he did not wish to engage in sexual conduct (ts 71 ‑ 72).
The sentencing judge characterised the offending as falling 'somewhere in the middle' of the range (ts 72). That view was reached having regard to: HR's age (towards the upper‑end of the 16‑year range); the high intensity of the sexual activity; the significant period of time in which the sexual activity persisted; and the supply of alcohol and cannabis which facilitated the offending (ts 72 ‑ 73).
The sentencing judge did not, other than in a limited way, expressly recognise the factors she considered to be aggravating. However, it is possible to identify various matters relied on by the sentencing judge as aggravating factors. First, the offending took place over a 'significant period of time' and involved sexual conduct of 'a very high intensity' (ts 72 ‑ 73). Second, the offending occurred in a context where the appellant provided HR with alcohol and cannabis (ts 70, 72, 82). Third, the offending involved a serious abuse of trust (ts 71). There were other aggravating factors that, although mentioned by the sentencing judge, were not expressly so described. These included: the vast amount of sexual activity in which the appellant had engaged with HR (some 100 occasions) (ts 72, 82); that the initial incident was premeditated and preplanned (ts 68); and that the appellant groomed HR (ts 68 ‑ 69). Also relevant, in this respect, were the findings that the sentencing judge made as to what the appellant must have known (see [27](2) ‑ (4) above).
By contrast, the sentencing judge expressly rejected the prosecutor's contention that HR's stepmother's involvement in the offending constituted an aggravating factor (ts 73 ‑ 74).
The appellant pleaded guilty at the first reasonable opportunity. The sentencing judge allowed a 25% discount under s 9AA of the Sentencing Act 1995 (WA) (ts 81). Otherwise, in terms of mitigating circumstances, the sentencing judge accepted that:
1.The appellant had a deprived background and had suffered trauma in her childhood ‑ this had a bearing in reducing the appellant's moral culpability for the reasons discussed at [25] above (ts 75 ‑ 79, 82).
2.The appellant had displayed remorse (ts 74 ‑ 75, 81).
3.Apart from the subject offending there was no evidence that the appellant had any sexual interest in children (ts 74).
4.The appellant had undertaken rehabilitation efforts to deal with her mental health issues and dependence on alcohol and drugs. However, she had not sought out rehabilitation programs directed at the kind of offending she had committed (ts 74 ‑ 75).
The sentencing judge was positively convinced, given the passage of time, that the offending conduct was isolated to HR in 2004 and 2005 (ts 74). There was, in the sentencing judge's view, only a limited need for personal deterrence (ts 81). However, in her Honour's view, general deterrence was a very significant matter (ts 81).
Defence counsel appearing for the appellant had suggested that a suspended term of imprisonment could be imposed. The sentencing judge rejected that contention in emphatic terms (ts 81). The sentencing judge repeated some of what had been said earlier as to the seriousness of the offending, the maximum penalty, the 25% discount for the plea of guilty and the Bugmy factors before stating that it was necessary to impose a sentence that properly reflected the appellant's overall criminality. This, in the sentencing judge's opinion, required the imposition of a term of immediate imprisonment of 6 years and 10 months (ts 81 ‑ 82).
The appellant was made eligible for parole (ts 82).
Ground 1 - the finding that there was a serious breach of trust
Ground 1 alleges an express error. It is directed to the following passage of her Honour's sentencing remarks:
To the extent that there are cases of this sort ‑ and by that, I mean adult female offenders with teenage male victims ‑ very often it has occurred, in this State at least, in the context of teachers and students. In my view, there is really no difference one way or the other. In some ways, it might be said that it's more of an abuse of trust and position to be a school teacher acting in that way towards a student. And in some ways, it might be said that it is more of an abuse of trust to commit this offence to the son ‑ or son's friend ‑ in your own home and in his home. In the end, I consider there's little distinction. It is a serious abuse of trust. (ts 71)
The appellant submits that the sentencing judge erred by equating the charged conduct with a serious breach of trust akin to the trust that is breached by teachers when they sexually offend against children who are their students. The appellant observes that s 321A encompassed a broad range of conduct. So far as s 321A was predicated on the commission of at least three prescribed offences the appellant notes that s 321(7) provided for an increased maximum penalty where a child is under the care, supervision or authority of the offender. The appellant submits that a finding that the offending was a serious breach of trust ‑ similar to the relationship between a teacher and student ‑ placed the offending in a distinctly more serious category than was warranted.
The appellant's submissions in support of ground 1 misstate the substance of the sentencing judge's finding. The sentencing judge did not find that there was a breach of trust similar to that where there was sexual offending in the context of a relationship between a teacher and student. Nor, in terms of how the finding is expressed in ground 1, did the sentencing judge find that the circumstances of the appellant's offending had 'little distinction' from circumstances where a teacher offends against a student. Rather, understood fairly in the context of the sentencing remarks and the sentencing hearing as a whole, the sentencing judge was saying that the distinction between teacher/student and the appellant/HR did not make a difference so far as the appellant's offending constituted a serious breach of trust.
The impugned passage of the sentencing remarks arises where the sentencing judge is discussing two considerations which arose for discussion in the sentencing hearing. The first of those is mentioned at [26] above. The second consideration was whether the appellant's offending involved a breach of trust; and if so, whether it was a serious breach of trust.
The issue arose out of a submission made by defence counsel. Initially defence counsel submitted that while the offending may be described as serious ‑ involving as it did a serious 'breach of community trust' ‑ it was not as serious as such a breach of trust between a teacher and pupil. After some discussion, defence counsel clarified that his submission was that the offending was not a less serious matter, but it was a different kind of trust. In that respect, defence counsel confirmed that he was not submitting that the breach of trust was less serious than that which arose in the case of sexual offending between a teacher and pupil. The submission was only that it was a trust of a different nature. The sentencing judge accepted that it was a different kind of breach of trust. However, her Honour expressed the provisional view that it was a breach of trust 'of an equally serious nature' (ts 25 ‑ 27).
Comments made by a sentencing judge during discourse with counsel in the course of counsel's submissions do not, ordinarily, have the status of findings. Nor, ordinarily, do such comments have the status accorded to observations made in the judge's sentencing remarks. Accordingly, it is generally wrong to draw conclusions about findings made by a sentencing judge based on questions or provisional views expressed during submissions. But here, in making the finding that is the subject of the impugned passage reproduced at [35] above, the sentencing judge expressly acknowledged that she was dealing with a consideration that had arisen in the sentencing proceedings. In the circumstances the sentencing judge's finding ought to be understood in the context of the exchange between the sentencing judge and defence counsel as has been recounted in the preceding paragraph.
Properly understood, in the context of what had passed between the sentencing judge and defence counsel at the sentencing hearing, the relevant finding was not that the appellant's offending had little distinction from circumstances where a teacher sexually offends against his or her student. The finding was that the appellant's offending constituted a serious breach of trust.
It is accepted that the existence of a position or relationship of trust between a sexual offender and his or her victim is an aggravating factor in the context of any sexual offending: CJ v The State of Western Australia.[2] Whether or not there is such a relationship of trust involves a question of fact. The appellant relied on the result in CJ v The State of Western Australia to support her contention that there was no relevant relationship of trust in the present case. That reliance is misconceived. In CJ v The State of Western Australia McLure JA identified that, in the context of sexual offences, there was relevantly a position or relationship of trust where an offender had authority, power or influence over the victim such as to be better enable the commission of the offence [9]. There was no evidence in that case that the offender was in such a position of trust [9]. So understood, the result in CJ v The State of Western Australia depended on the facts in that case.
[2] CJ v The State of Western Australia [2009] WASCA 42 [8].
In written submissions the appellant argued that there was no evidence that she was trusted by anyone to care for or look after the victim. The appellant said that, to the contrary, there was evidence that HR's stepmother knew of and condoned the appellant's conduct. On the facts HR's stepmother did not become aware of the sexual activity between the appellant and HR until well after it commenced. In any event the stepmother's eventual knowledge of the sexual activity is immaterial to whether there was a position or relationship of trust whereby the appellant had authority, power or influence over HR.
On the evidence there is no doubt that the appellant had authority, power or influence over HR. At the material time HR was 14 to 15 years old. HR had commenced visiting the appellant's home, to visit his same‑age friend (the appellant's son) when he was 13 years old. HR's agency was no more than that of his friend. The appellant was 30 to 31 years old and the mother of the appellant's friend. As an adult in charge of the home, and the mother of HR's same‑age friend, the appellant was in a position of ascendancy over HR where she had authority, power or influence over him. That was all the more so given that the sexual offending occurred when the appellant's husband was working away from home. On those occasions the appellant was the sole adult in charge of the home and ‑ by reason of her situational ascendancy as the adult in charge of the home where HR was visiting ‑ was in a position of authority, power or influence over all of the children who were in her home and under her care.
The fact that the appellant's offending constituted a breach of trust was uncontroversial at the sentencing hearing. Defence counsel readily conceded ‑ quite properly and correctly ‑ that there was a serious breach of trust (characterised, in defence counsel's words, as a 'breach of community trust') (ts 25). On the evidence, for the reasons we have explained, it was well open to the sentencing judge to accept that concession and to find that the appellant's offending constituted a breach of trust. The breach of trust was correctly characterised as serious having regard to the frequency and duration of the sexual offending combined with its nature and the contextual circumstances in which it arose.
Ground 1 is without merit. It does not have a reasonable prospect of success. We would not grant leave to appeal in relation to ground 1.
Ground 2 - whether the sentence was manifestly excessive
Ground 2 alleges implied error.
The general principles governing appeals against sentence contending that error should be inferred on the basis that a sentence is manifestly excessive are well established. See for example Kabambi v The State of Western Australia.[3] A matter of primary importance to those principles is that sentencing is a discretionary exercise. An appellate court can only intervene if the appellant demonstrates either an express or implied material error. An appellate court cannot substitute its own opinion for that of the sentencing judge merely because the appellate court would have exercised the sentencing discretion differently.
[3] Kabambi v The State of Western Australia [2019] WASCA 44 [21].
For present purposes, so far as the contention is one of implied error, it suffices to state that the ultimate question is whether on the facts the sentence of 6 years and 10 months' imprisonment for the appellant's offending is unreasonable or plainly unjust such that the court must conclude that a substantial wrong has occurred: House v The King.[4] The court must be driven to conclude that there must have been 'some misapplication of principle' when regard is had to all of the relevant sentencing factors (including the degree to which the sentence differs from sentences that have been imposed in comparable cases): R v Pham.[5]
[4] House v The King [1936] HCA 40; (1936) 55 CLR 499, 505.
[5] R v Pham [2015] HCA 39; (2015) 256 CLR 550 [28](7).
In evaluating, for this purpose, whether a sentence for an individual offence is manifestly excessive, the offending is assessed by reference to: (1) the maximum sentence for the offence - here 20 years' imprisonment; (2) the standards of sentencing customarily imposed; (3) the place that the criminal conduct occupies in the scale of seriousness; and (4) the offender's personal circumstances.
Something should be said about the offence under the former s 321A(3) of which the appellant was charged and convicted.
The purpose of s 321A was to protect children: The State of Western Australia v Lee.[6] Section 321A of the Code, as was in force at the time of the appellant's offending, took that form from 1 August 1992 to 26 April 2008. Its terms were narrower in operation but nevertheless broadly similar in outline to the successor offence currently found in s 321A of the Code (although the current offence is now found in s 321A(4) rather than s 321A(3) as with the former s 321A). A maximum penalty of 20 years' imprisonment applied to the former s 321A. The same maximum penalty applies to the current s 321A. However, there are two material differences between the two statutory regimes.
[6] The State of Western Australia v Lee [2008] WASCA 150 [10] - [11].
First, as has been seen, the former s 321A was concerned with a person who had a 'sexual relationship' with a child under the age of 16 years. By contrast the current s 321A is concerned with where a person 'persistently engages in sexual conduct' with a child under the age of 16 years. But, when the two legislative regimes are interrogated, what constituted a 'sexual relationship' for the purpose of the former s 321A is effectively within that which constitutes persistently engaging in sexual conduct for the purpose of the current s 321A. In the circumstances it is readily apparent that the change from 'sexual relationship' to 'persistent sexual conduct' was designed to eliminate the possible perception of an element of mutuality between the offender and victim in such offending.
Second, under the former s 321A(4) an offender could not be charged on the same indictment with any other discrete sexual offence alleged to have been committed against the child victim during the period of offending covered by the s 321A charge. That is no longer the case under the current s 321A (see the current s 321A(6)). However, pursuant to the current s 321A(13), any term or terms of imprisonment for a prescribed offence committed in the period during which a s 321(4) offence was committed must be served concurrently with the term of imprisonment for the offence under s 321A(4).
The latter feature of the current s 321A(13) has the effects explained by Hall and Vandongen JJA in their separate reasons in XBX v The State of Western Australia.[7] In particular, while the possibility of cumulacy might have seen a total effective sentence exceeding 20 years' imprisonment where an offender is charged and convicted of numerous sexual offences against a single child victim, where an offender is charged with a s 321A offence the maximum penalty for that offence becomes, in effect, the maximum penalty that can be imposed for the entirety of the sexual offending perpetrated against the child victim in the specified period. The same effect arose in relation to the former s 321A as a result of the former s 321A(4)'s prohibition on what might be charged where an indictment charged an accused under s 321A(3) for a particular period.
[7] XBX v The State of Western Australia [2024] WASCA 43 [96] ‑ [99] (Hall JA), [123] ‑ [125], [152] (Vandongen JA).
Mitchell J (Buss and Mazza JJA agreeing) explained in AJ v The State of Western Australia the basis on which an offender is to be sentenced for his or her offending under the current s 321A(4):
The criminal conduct for which the appellant has been convicted and must be punished involves engaging in sexual conduct with each victim on many occasions over a period of years. Conviction of a single indecent dealing offence or a number of individual offences is not comparable. Even when individual offences are charged as representative counts, the offender is only to be sentenced and punished for the counts on the indictment, and the representative nature of the charge prevents the offender finding mitigation on the basis that the offending conduct was isolated and uncharacteristic. By contrast, under s 321A the offender is to be sentenced and punished for the whole course of criminal conduct. The essence of the criminality involved in the offence created by s 321A is the persistent and ongoing nature of the sexual conduct with a child.[8] (emphasis added) (citations omitted)
[8] AJ v The State of Western Australia [2016] WASCA 13 [54] (approved in XBX [55], [57], [122]).
These observations apply with equal force to the former s 321A(3) offence committed by the appellant.
What was said of sexual offending against children more generally in OTR v The State of Western Australia [No 2] applies equally to offending under s 321A. Relevantly:
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.[9]
[9] OTR v The State of Western Australia [No 2] [2022] WASCA 123 [55] (approved in Walsh v The State of Western Australia [2024] WASCA 78 [166]).
Section 321A may, as in the present case, apply to offending against a child victim who is approaching 16 years of age. In such instances sentencing for offending contrary to s 321A will be informed by the same public policy and purpose that underpins s 321 of the Code (dealing with sexual offences against a child of or over 13 years of age and under 16 years of age). The relevant public policy and purpose is not only the protection of children from exploitation by sexual predators but also the protection of children from themselves. The legislation seeks to protect children from themselves at an age when they may be unable to fully comprehend or cope with the social and emotional consequences of embarking on sexual activity. Accordingly, the presence or absence of an element of 'abuse' is of considerable importance in sentences for offences of this kind. See The State of Western Australia v MGA;[10] The State of Western Australia v MGT;[11] The State of Western Australia v Dorsett;[12] The State of Western Australia v WRH.[13]
[10] The State of Western Australia v MGA [2024] WASCA 108 [53], [74].
[11] The State of Western Australia v MGT [2024] WASCA 136 [53] - [54].
[12] The State of Western Australia v Dorsett [2025] WASCA 13 [37].
[13] The State of Western Australia v WRH [2025] WASCA 29 [48].
The greater the element of abuse ‑ as evidenced by matters such as disparity in age, the use of force, other types of pressure, a pattern of grooming behaviour or a breach of trust ‑ the greater the culpability: Deering v The State of Western Australia.[14]
[14] Deering v The State of Western Australia [2007] WASCA 212 [18].
The appellant contends that the sentence of 6 years and 10 months' imprisonment is significantly longer than that required to serve all relevant sentencing considerations. The appellant seeks to emphasise that: she cannot be classed as a sexual predator of children generally (having not offended in a like manner in the 20 years that followed the offending); she has overcome childhood deprivation to lead an otherwise functional and productive life; this conduct, although a serious lapse of judgment, can properly be classified as out of character.
In advancing ground 2 the appellant accepts that comparison across child sex offending authorities is problematic. Nevertheless, by reference to a series of authorities, the appellant submits that the sentencing outcomes of cases said to be comparable tends to suggest that the sentence imposed on her is too high. The appellant relies on R v Hunt,[15] Deering, Lee, JAF v The State of Western Australia,[16] CJ, D vThe State of Western Australia,[17] JDF v The State of Western Australia,[18] EKO v The State of Western Australia,[19] MRW v The State of Western Australia,[20] Coutts v The State of Western Australia,[21] XBX and Walsh.
[15] R v Hunt [2002] WASCA 324.
[16] JAF v The State of Western Australia [2008] WASCA 231.
[17] D v The State of Western Australia [2009] WASCA 155.
[18] JDF v The State of Western Australia [2016] WASCA 221.
[19] EKO v The State of Western Australia [2020] WASCA 88.
[20] MRW v The State of Western Australia [2022] WASCA 98.
[21] Coutts v The State of Western Australia [2023] WASCA 38.
It will be necessary to return to the authorities. Before doing so another submission on behalf of the appellant must be considered. The appellant, in written submissions, contends that HR's 'consent' is relevant to the significance of the frequency of the sexual activity. The appellant also seeks to draw a distinction between sexual offending against pre‑pubescent children (who are said to 'have no capacity to consent') and 'consenting' teenagers.
It must be accepted that HR's age (which puts him towards the upper end of a child under the age of 16 years) is relevant to the seriousness of the appellant's offending. But this is not to accept the tenor of the submission made on behalf of the appellant seeking to diminish the seriousness of 'taking advantage of [a] willing teenage victim' (emphasis added to the appellant's submission). It is generally not meaningful to talk about children who are below the age of consent as being willing participants in sexual conduct. It is true that there are decisions which speak of child victims of sexual offending who are 'willing participants' in, or who 'consent' to, sexual activity. Sometimes, as in CJ, it is even said that the child victim was the initiator of the sexual activity. The usefulness of such terminology was considered in the recent decision of this court in The State of Western Australia v WRH (a case where a 23‑year-old male offender sexually penetrated a 14‑year-old female child causing her to fall pregnant). There the sentencing judge had described the child victim as a 'willing participant'.
The court in WRH first repeated what was said by Wheeler JA in The State of Western Australia v SJH concerning free and voluntary 'consent', absence of evidence concerning 'consent' and proved absence of 'consent':
Proved absence of consent or, particularly, knowledge of absence of consent is aggravating. I would add that it may be aggravating that the consent has been procured through what might be described as persistent grooming or persuasion, or by the use of some other sort of influence falling short of coercion. Absence of evidence concerning consent is, of course, neutral. However, knowledge of free and voluntary consent, particularly where the child has initiated the conduct in question, would appear to me to be mitigating, when regard is had to the legislative structure and purpose described above. Whether a fact is aggravating or mitigating is to be considered in connection with the purpose for which it is to be used. If the primary purpose of the legislation is to protect children from 'abuse', actual absence of abuse, would appear, necessarily, to be mitigatory.[22] (citations omitted)
[22] The State of Western Australia v SJH [2010] WASCA 40; (2009) 200 A Crim R 228 [69].
The court in WRH observed that the differing implications identified by Wheeler JA arose in cases where, as a matter of fact, a child instigates sexual activity or agrees to engage in sexual activity without pressure or grooming. The court referred to cases where it was said that there was free and voluntary 'consent' or that the child victim was a 'willing participant' [61]. The court then stated that:
Neither label is entirely satisfactory. In many circumstances it will not be meaningful to refer to a child who does not have the maturity to lawfully consent to or understand the nature and consequences of the activity as consenting to or being a willing participant in the activity. It should be remembered that the purpose of the statutory provision is the protection of children. It is the responsibility of adults not to engage in sexual activity with children who are under the age of consent.
In any particular case, the important thing is to recognise that criminality is to be assessed by focusing on the detail of the particular circumstances of the case, rather than a label which may be applied to describe those circumstances.
The relevance and weight to be given to the circumstance that the child victim instigates, or without pressure or grooming agrees to engage in, the sexual act that constitutes the offending will vary considerably depending on the particular facts and circumstances. Moreover, even where such a finding minimises the degree of abuse associated with the offending conduct, the offender's disregard of the law is a matter that must be considered in assessing the seriousness of the offence. [62] ‑ [64] (citations omitted)
To similar effect see The State of Western Australia v MGA [74].
Three things should be said of the appellant's offending, and the submission on appeal that HR was a 'willing' victim, based on this review of the authorities. First, there is an unchallenged factual finding by the sentencing judge that the appellant groomed HR. The sexual activity that followed must be seen in the prism of that conscious and deliberate action by the appellant rather than any lack of active resistance by HR. Second, throughout the course of the sexual activity the appellant provided HR with alcohol and cannabis. The sentencing judge did not definitively find that this occurred on every occasion when there was sexual activity between the appellant and HR. There was, however, a finding to the effect that it occurred 'regularly' on 'most' of the occasions (ts 70). It cannot be said that a 14 or 15‑year‑old boy who has been provided with alcohol or cannabis is capable of consenting to, or being a willing participant in, sexual activity at the behest of a woman who is more than twice his age. Third, the last of the particularised incidents cannot on any basis be seen as one where the appellant consented to or was a willing participant in the sexual activity. The sentencing judge's finding of reluctant acquiescence is not akin to knowledge on the part of the appellant of free and voluntary consent of the kind referred to by Wheeler JA in SJH.
These three features of the appellant's offending require rejection of the submission that HR's 'consent' is relevant to the frequency of the sexual activity. Indeed, contrary to the thrust of the submission made on the appellant's behalf, these features demonstrate the abuse inherent in the appellant's offending. For the reasons given in dealing with ground 1, the appellant's offending constituted a serious breach of trust. That also demonstrates the abuse inherent in the appellant's offending. Separately, while ordinarily it is not possible to obtain confirmation that a child's apparent cooperation or participation in such sexual offending is not based on a mature understanding of the nature and consequences of the activity, this is not the usual case. The passage of time has allowed HR to reflect on the sexual activity that occurred between him and the appellant. HR's victim impact statement makes it abundantly clear that any apparent cooperation or participation by HR in the sexual activity involved, at best, a profound misunderstanding as to the real nature and consequences of what was occurring. The child victim in this case was of an age and was yet to attain a level of maturity such that he continued to require protection from himself.
We are, in the circumstances, well satisfied that the primary judge was correct to characterise the appellant's offending as falling somewhere in the middle of the range. If anything that characterisation tended to downplay the seriousness of the offending. The high intensity of the sexual activity, its persistence over a seven‑to‑nine-month period and the sheer number of occasions on which the sexual activity took place ‑ in the context of the aggravating factors which we have mentioned ‑ means that this was particularly serious offending under s 321A.
The appellant's written submissions refer to numerous authorities in an attempt to identify customary sentencing standards with respect to offending under s 321A. There are difficulties with this analysis even before coming to the authorities relied on by the appellant. As Hall JA stated in XBX, the range of conduct that is encompassed by s 321A is extraordinarily wide [101]. In the same case Mazza JA, although in dissent, stated in relation to offences under s 321A that there are only a relatively small number of comparable cases [65](2). We agree with those observations. These matters, in combination, mean that the task of identifying customary sentencing standards is particularly problematic.
Perhaps because of the relatively small number of comparable cases for s 321A offences, the appellant's analysis went well beyond sentences imposed for offending contrary to s 321A. Indeed, adopting an approach to sentencing appeals that is all too common to sentence appeals in this court, the appellant's written submissions identify cases of sexual offending against children more generally (not just s 321A cases); compare different features of that offending with the appellant's offending ‑ generally submitting that the relevant feature means that other offending was more serious than the appellant's offending; and then, insofar as the other offending has been characterised as more serious, contend that a lack of disparity between the sentence in the other case and the sentence imposed on the appellant bespeaks implied error on the part of the sentencing judge.
This kind of micro‑analysis does not assist. To the contrary, it tends to obscure or distract: WRH [66]. Manifest excess is not established by pointing to one or two cases which are said to be more serious but in respect of which a similar or only slightly higher sentence was imposed. Nor is it established by pointing to one or two cases in which lesser sentences were imposed which are said to be comparable to the case before the court. Rather, manifest excess must be assessed by reference to the standard of sentences customarily imposed for offending of the relevant kind determined from the range and spread of previous cases. See LFG v The State of Western Australia.[23]
[23] LFG v The State of Western Australia [2015] WASCA 88; (2015) 48 WAR 178 [231].
The prevalence, in sentencing appeals in this court, of the kind of analysis employed on behalf of the appellant, suggests that it is appropriate to say something about why and how the court considers and identifies customary sentencing standards, ie the range of sentences customarily imposed in broadly comparable cases. Relevantly:
1.The court considers customary sentencing standards to ensure that the sentence imposed on an offender is broadly consistent with sentences imposed in broadly comparable cases, taking into account all relevant sentencing factors (but recognising that there is no single correct sentence): Poduti v The State of Western Australia;[24] Pomana v The State of Western Australia;[25] Rhodes v The State of Western Australia;[26] OTR [No 2] [79].
2.Consideration of customary sentencing standards assists this court to achieve reasonable consistency in sentencing for State offences ‑ it being part of this court's role to ensure an appropriate level of consistency in the sentences imposed in this State for State offences: Tulloh v The Queen.[27] See also Wong v The Queen.[28] An analogous approach applies in relation to Commonwealth sentences and the work of the intermediate State and Territory appellate courts: Hili v The Queen [18], [56]. However, reasonable consistency does not require adherence to a range of sentences that is demonstrably contrary to principle: Director of Public Prosecutions (Vic) v Dalgliesh (A pseudonym).[29]
3.Consistency in sentencing requires that like cases be treated alike; it also requires that different cases be treated differently: Wong [65]; Hili v The Queen;[30] R v Pham [28]. The consistency that is sought is consistency in the application of the relevant legal principles, not some numerical or mathematical equivalence: Hili v The Queen [18], [47] ‑ [49], [54] ‑ [56], [60] ‑ [62]; Barbaro v The Queen;[31] R v Pham [28], [46]; Director of Public Prosecutions (Vic) v Dalgliesh (A pseudonym) [49]. Recording what sentences have been imposed in other cases is useful if ‑ but only if ‑ it is accompanied by articulation of the unifying principles that the sentences reveal: Wong [59] (see also R v Pham [26]).
4.Comparable cases for the purpose of an allegation of manifest excess or manifest inadequacy are comparable cases in relation to offences with comparable factual elements and comparable maximum penalties: Drage v The State of Western Australia.[32]
5.In the case of State offences, comparable cases are those of this court and its predecessor, the Court of Criminal Appeal. Reliance on first instance decisions is misplaced: Marshall v The State of Western Australia;[33] Liyanage v The State of Western Australia;[34] Pomana [67]. In the case of Commonwealth offences, comparable cases are those of the intermediate State and Territory appellate courts: Hili v The Queen [56] - [57].
6.Care must be taken when considering what, if anything, may be derived from a particular decision. For example, the dismissal of an offender appeal alleging that a sentence was manifestly excessive establishes only that the sentence appealed from was not unreasonable or plainly unjust. Such a decision does not identify the sentence which this court would have imposed had it resentenced the offender: Lee v The State of Western Australia.[35] Nor does it fix the upper limit of a proper exercise of the sentencing discretion: Neumann v The State of Western Australia;[36] Mills v The State of Western Australia [No 2];[37] GNO v The State of Western Australia.[38]
7.All the more so, where an appeal on the ground of manifest excess is refused leave ‑ the ground having no reasonable prospect of success ‑ the sentence imposed will have very little utility as a comparable sentence. Where a sentence is, in effect, not even arguably excessive, it does not provide any marker as to the upper limits of the proper exercise of the sentencing discretion: GUE v The State of Western Australia;[39] Aung v The State of Western Australia;[40] MYB v The State of Western Australia.[41]
8.This court's decision when resentencing on a successful appeal against sentence does not fix the upper or lower limit of the permissible sentencing range: Salkilld v The State of Western Australia;[42] Kabambi [21](5); Greenfield v The State of Western Australia;[43] Pomana [55].
9.One or two decisions ‑ or even a small number of decisions ‑ will be of limited assistance. The sentences imposed in a small number of cases do not suffice to reveal customary standards of sentencing or an appropriate sentencing range: Trompler v The State of Western Australia;[44] Wallam v The State of Western Australia;[45] Marshall [59]; Pureau v The State of Western Australia;[46] Pomana [66]; The State of Western Australia v Zhuang.[47] It is not meaningful to speak of a pattern of past sentences in the case of offences which are not frequently prosecuted and where a relatively small number of sentences make up the set: R v Pham [49]. See also R vKilic.[48]
10.Sentencing practices for a particular kind of offending may change over time reflecting changes in community attitudes to such offending: R v Kilic [21], [26] ‑ [27]; Director of Public Prosecutions (Vic) v Dalgliesh (A pseudonym) [56] ‑ [57]. Accordingly, older authorities said to establish a range must be considered with some caution. They may not reflect contemporary sentencing standards. That is particularly so where there are signs of a 'firming up' in the sentences for that kind of offending: Duncan v The State of Western Australia.[49]
[24] Poduti v The State of Western Australia [2011] WASCA 169 [14].
[25] Pomana v The State of Western Australia [2020] WASCA 204 [54].
[26] Rhodes v The State of Western Australia [2022] WASCA 168; (2022) 103 MVR 90 [32].
[27] Tulloh v The Queen [2004] WASCA 169; (2004) 147 A Crim R 107 [46].
[28] Wong v The Queen [2001] HCA 64; (2001) 207 CLR 584 [6] - [10].
[29] Director of Public Prosecutions (Vic) v Dalgliesh (A pseudonym) [2017] HCA 41; 262 CLR 428 [50], [53].
[30] Hili v The Queen [2010] HCA 45; (2010) 242 CLR 520 [47], [49].
[31] Barbaro v The Queen [2014] HCA 2; (2014) 253 CLR 58 [40].
[32] Drage v The State of Western Australia [2021] WASCA 6 [46].
[33] Marshall v The State of Western Australia [2015] WASCA 156; (2015) A Crim R 99 [62].
[34] Liyanage v The State of Western Australia [2017] WASCA 112; (2017) 51 WAR 359 [284].
[35] Lee v The State of Western Australia [2019] WASCA 137 [26].
[36] Neumann v The State of Western Australia [2013] WASCA 70 [30].
[37] Mills v The State of Western Australia [No 2] [2017] WASCA 52; (2017) 265 A Crim R 484 [52].
[38] GNO v The State of Western Australia [2025] WASCA 111 [82].
[39] GUE v The State of Western Australia [2022] WASCA 121 [59]
[40] Aung v The State of Western Australia [2022] WASCA 175 [45].
[41] MYB v The State of Western Australia [2024] WASCA 53 [70].
[42] Salkilld v The State of Western Australia [2017] WASCA 168 [48](5).
[43] Greenfield v The State of Western Australia [2019] WASCA 29 [26].
[44] Trompler v The State of Western Australia [2008] WASCA 265 [37].
[45] Wallam v The State of Western Australia [2012] WASCA 115 [13].
[46] Pureau v The State of Western Australia [2017] WASCA 115 [74].
[47] The State of Western Australia v Zhuang [2021] WASCA 56 [161].
[48] R v Kilic [2016] HCA 48; (2016) 259 CLR 256 [25].
[49] Duncan v The State of Western Australia [2018] WASCA 154 [46].
Also, it should always be borne firmly in mind that a sentencing range for comparable cases does not fix the range of a sound exercise of the sentencing discretion in a particular case: Hili v The Queen [54]; Munda v The State of Western Australia;[50] R v Pham [27]. The range of sentences which have historically been imposed does not establish the outer bounds of the permissible discretion ‑ the historical range simply stands as a yardstick against which to examine the sentence the subject of the appeal: Hili v The Queen [54]; Barbaro v The Queen [41]; R v Pham [29], [47]; R v Kilic [22]; Director of Public Prosecutions (Vic) v Dalgliesh (A pseudonym) [81], [83] ‑ [84].
[50] Munda v The State of Western Australia [2013] HCA 38; (2013) 249 CLR 600 [39].
Customary sentencing standards provide a yardstick for ensuring broad consistency. But they are simply one factor - not a controlling factor ‑ in evaluating whether a sentence is manifestly excessive or manifestly inadequate in the circumstances of a specific case: Mills [No 2] [52]. This court has said many times that the guidance afforded by comparable cases is flexible rather than rigid. A sentencing range for a particular offence, if it exists, is merely one of the factors to be taken into account in deciding whether a sentence challenged on appeal is manifestly excessive or manifestly inadequate. See eg Duncan [43]; Pomana [54]; Rhodes [31] ‑ [32].
A lack of directly comparable cases does not prevent the court from deciding that an individual sentence is manifestly excessive or manifestly inadequate. It simply means that the court has no directly comparable cases against which to assess the sentence. The question of manifest excess or manifest inadequacy must be approached by reference to the maximum sentence for the offence, the place that the criminal conduct occupies in the scale of seriousness and the offender's personal circumstances: Munda [33], [38], [40]; The State of Western Australia v Doyle;[51] The State of Western Australia v Edwins.[52]
[51] The State of Western Australia v Doyle [2017] WASCA 207 [36].
[52] The State of Western Australia v Edwins [2025] WASCA 73 [56].
We have already listed the decisions relied on by the appellant as being comparable cases (see [62] above). Only three of those decisions involve offending contrary to s 321A (Lee, D and XBX). The other decisions are not, in our view, useful comparable cases for the purpose of identifying customary sentencing standards for offending contrary to s 321A of the Code. Comparable cases in this regard are cases where sentences have been imposed for the same offence: XBX [100]. The other decisions relied on by the appellant concern different kinds of sexual offending against children ‑ mainly, but not exclusively, sexual penetration of a child over 13 years of age and under 16 years of age contrary to s 321(2) of the Code.
There are three reasons why these non‑s 321A decisions are inapt as comparable cases. First, the individual sentences that are the subject of those decisions are concerned with discrete acts constituting an offence (eg a specific instance of sexual penetration of a child over 13 years of age and under 16 years of age). By contrast, as has been seen, a sentence for offending contrary to s 321A punishes the offender for the whole course of his or her criminal conduct in engaging in sexual activity with a child victim over a specific period of time. The essence of the criminality in the offence created by s 321A is the persistent and ongoing nature of the sexual conduct with the child victim. In this material respect the relevant offences do not have comparable factual elements. Second, other than where the child was under the care, supervision or authority of the offender, the individual offences that are the subject of the non‑s 321A decisions do not have comparable maximum penalties with the maximum penalty under s 321A. Third, many of the non‑s 321A decisions relied on by the appellant turn on totality considerations. The difficulty in comparing total effective sentences in the context of sexual offending against children is well understood. See eg OTR [No 2] [62]. The non‑s 321A decisions relied on by the appellant exhibit a considerable mix of disparate offending conduct, offenders and child victims (including differing ages, whether there was one or multiple victims and the nature of the relationship between the offender and his or her victim). That considerable mix makes those decisions unsuitable for drawing any conclusion as to customary sentencing standards for offending against s 321A of the kind committed by the appellant.
There are other reasons why some of the non‑s 321A decisions are of limited usefulness. Some no longer reflect contemporary sentencing standards. Others involve no more than refusal of leave to appeal or dismissal of an appeal on the ground of manifest excessiveness. There is, however, no need to go further into these matters given the overriding issues referred to in the preceding paragraph.
The three s 321A decisions relied on by the appellant are insufficient in number to reveal customary sentencing standards for offending of the kind committed by the appellant. In any case, for the reasons that follow, they are of limited value as comparable cases.
The first of the s 321A decisions relied on by the appellant is Lee. Lee is an older case. It was decided in 2008. This court has observed that, as at 2012, there had in recent years been a firming up of sentences imposed for sexual offences against children: OTR [No 2] [56]. That firming up has continued. We are not satisfied that Lee reflects contemporary sentencing standards for offending against s 321A of the kind committed by the appellant. In any event Lee is simply a decision that the sentence imposed in that case was not manifestly inadequate. One of the sentences was described by Steytler P as lenient [1]; McLure JA characterised it as 'at the low end' [16]. The circumstances of the offending were very different to the present case. The child victims were older (one was nearly 16 years old and the other turned 15 years old the day after the sexual relationship commenced); the age differential between the offender and the child victims was less than in the present case; and, critically, there was no position or relationship of trust between the offender and the victims. There were also far fewer instances of sexual activity between the offender and his victims and the sexual relationships were far shorter in duration.
D is also an older case. The result in D should be viewed with circumspection given the general firming up in sentences for sexual offending against children. There were two complainants in D. However, the s 321A offence was only committed in relation to the second complainant. The sexual relationship occurred while the child victim was between the age of 15 years 7 months and 16 years. So the victim in D was older, and the relationship was for a lesser duration, than in the present case. There were approximately eight separate occasions over that five‑month period where sexual activity occurred (primarily penile‑vaginal penetration). The offender was in a position of trust as the offending was in the context of a teacher and student relationship. This court held that a 5‑year term of imprisonment was manifestly excessive and resentenced the offender to a term of imprisonment of 3 years and 6 months.
D was examined in detail in EKO. The point was made that, in D, there was no finding that the offender had engaged in manipulative behaviour. Nor had the offender groomed the victim [61]. In the present case, not only did the appellant groom her younger child victim, she also manipulated HR by providing him with alcohol and cannabis. The relationship subsisted for far longer and involved vastly many more acts of sexual intercourse than the offending in D. The appellant's offending is substantially more serious than the offending in D. In any case, for reasons already explained, a single case is not indicative of customary sentencing standards. The firming up of sentences for child sexual offending since D, and the differences in the seriousness of the offending between D and the present case, belie the appellant's contention that the result in D suggests that her sentence is too high.
The final s 321A decision relied on by the appellant is XBX. The offending in XBX was more serious than the offending in the present case. It concerned a man in his late 50s who, among other things, persistently engaged in sexual conduct with his de facto granddaughter over a nine‑month period. The child victim was 7 ‑ 8 years old at the relevant time. The offender pleaded guilty and received a 25% s 9AA discount. In the District Court he was sentenced to a term of 10 years' imprisonment. This court allowed an appeal on the ground of manifest excessiveness and resentenced the offender to 7 years and 4 months' imprisonment.
We accept, as the appellant submits, that the offending in XBX was more serious than the offending in the present case. But we do not accept that the six‑month disparity between the two sentences is difficult to reconcile. It may be accepted that sexual offending against a 7 to 8‑year-old child is qualitatively different to sexual offending against a 14 to 15‑year-old child. But the appellant's offending ‑ in terms of the 'whole course of criminal conduct' ‑ was quantitively of a higher order of magnitude than the offending in XBX. There were also aggravating factors that were not found in XBX (although the offender in XBX did not suffer from a deprived background in an equivalent way to the appellant). Viewed in the broad the two sentences are not inconsistent. In any case, as we have noted, when this court resentences it does not fix the upper or lower limit of the permissible sentencing range.
A number of other s 321A decisions are referred to in XBX. They include Dickens v The Queen,[53] KMB v The State of Western Australia,[54] Cairns v The State of Western Australia,[55] AJ, Coulter v The State of Western Australia,[56] CDL v The State of Western Australia[57] and NSA v The State of Western Australia.[58] It is not necessary to recount the facts and outcomes in those decisions. That is done in XBX. The only decision that is broadly comparable with the present case is Cairns. But Cairns is of limited usefulness as leave to appeal was refused in respect of a ground of appeal that alleged that a sentence of 5 years' imprisonment was manifestly excessive.
[53] Dickens v The Queen [2004] WASCA 179; (2004) 147 A Crim R 343.
[54] KMB v The State of Western Australia [2010] WASCA 212.
[55] Cairns v The State of Western Australia [2015] WASCA 198.
[56] Coulter v The State of Western Australia [2019] WASCA 215.
[57] CDL v The State of Western Australia [2022] WASCA 18.
[58] NSA v The State of Western Australia [2023] WASCA 53.
In XBX Mazza JA observed that the decisions in which individual sentences for offences contrary to s 321A are examined are few in number and their factual circumstances are diverse [84]. His Honour dissented as to the result in XBX. There is, however, no doubt that Mazza JA's observation is correct. The paucity of s 321A decisions, and the diversity in the factual circumstances of the offending that has been the subject of the relatively small number of decisions in this court, mean that customary sentencing standards are yet to emerge in relation to offending under s 321A of the kind committed by the appellant.
The most that can be said from this review of the cases is that, so far as XBX is the most recent s 321A decision in this court which has resulted in an offender's appeal being allowed and the offender being resentenced, the appellant's sentence is not inconsistent with the sentence in XBX.
The guidance afforded by comparable cases is limited. It is necessary, in the circumstances, to consider the question of manifest excessiveness substantially by reference to the maximum penalty for the offence, the place that the appellant's offending occupies in the scale of seriousness and the appellant's personal circumstances. Having done so, while we view the sentence of 6 years and 10 months' imprisonment as undoubtedly firm, when all the relevant facts and circumstances are taken into account, we are not satisfied that the sentence is unreasonable or plainly unjust such that a substantial wrong has occurred or there has been some misapplication of principle.
To the contrary, in all the circumstances we are satisfied that the sentence of 6 years and 10 months' imprisonment was within the range open on a proper exercise of the sentencing discretion.
We are of that opinion having taken into account: (1) the maximum penalty for the appellant's offending ‑ a term of imprisonment of 20 years; (2) the objective circumstances of the appellant's offending as a whole ‑ for the reasons we have explained the appellant's offending was particularly serious offending under s 321A. There is no need to repeat the reasons why the appellant's offending was particularly serious offending. The basis for that conclusion is developed at length earlier in these reasons and in the sentencing judge's remarks; (3) the impact of the appellant's offending on HR; (4) the place that the appellant's offending occupies on the scale of seriousness of offences of this kind; (5) the significance of general and personal deterrence and the need to protect vulnerable children (accepting, however, that the appellant's risk of reoffending is such that personal deterrence is very much a lesser sentencing consideration than usual for offences of this kind); (6) the appellant's plea of guilty at the first reasonable opportunity for which she received, quite properly, a 25% s 9AA discount; (7) the appellant's deprived background (particularly so far as it resulted in the appellant being more vulnerable generally and more susceptible to making bad decisions when it came to relationships and sexual behaviour); (8) the appellant's genuine remorse; (9) the appellant's other personal antecedents and circumstances including her generally pre‑social life and character references; and (10) all other sentencing factors and considerations as mentioned in these reasons.
We would not imply or infer error from the sentencing outcome. The sentence of 6 years and 10 months' immediate imprisonment is not manifestly excessive. Ground 2 should be dismissed.
We would grant leave to appeal in relation to ground 2. The term of immediate imprisonment imposed by the sentencing judge was firm. Ground 2 had a reasonable prospect of succeeding. However, for the reasons we have given, ground 2 must be dismissed.
Conclusion and orders
There should be an extension of time to appeal, notwithstanding the delay on the part of the appellant's solicitor, so far as we would grant leave to appeal in relation to ground 2. However, as leave to appeal in relation to ground 1 must be refused, and ground 2 fails, the appeal must be dismissed.
We would make orders that:
1.The time for the appellant to commence an appeal against the sentence imposed on her on 8 April 2024 by the District Court of Western Australia (Black DCJ) in respect of the conviction the subject of IND 689 of 2023 is extended to 3 July 2024.
2.Leave to appeal on ground 1 is refused.
3.Leave to appeal on ground 2 is granted.
4.The appeal is dismissed.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
SD
Associate to the Hon Justice Vaughan
12 SEPTEMBER 2025
61
1