JTR v The State of Western Australia - [2023] WASCA 131

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT :   THE COURT OF APPEAL (WA)
CITATION:   JTR -v- THE STATE OF WESTERN AUSTRALIA [2023] WASCA 131
CORAM:   BUSS P
MITCHELL JA
VANDONGEN JA

HEARD:   20 JULY 2023
DELIVERED          :   1 SEPTEMBER 2023
FILE NO/S:   CACR 120 of 2022
BETWEEN:   JTR
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent

ON APPEAL FROM:
Jurisdiction              :   DISTRICT COURT OF WESTERN AUSTRALIA
Coram:   GETHING DCJ
File Number            :   IND 710 of 2022

Catchwords:

Criminal law - Appeal against sentence - Appellant convicted on pleas of guilty to 419 total counts of sexual penetration of a child under the age of 13 years, indecent dealing with a child under the age of 13 years, indecently recording a child under the age of 13 years, producing child exploitation material, and possession of child exploitation material - Whether total effective sentence of 25 years' imprisonment was manifestly excessive - Whether overall total effective sentence infringed second limb of totality principle

Legislation:

Criminal Code (WA), s 220, s 320
Sentencing Act 1995 (WA), s 9AA

Result:

Leave to appeal granted on ground 1
Leave to appeal refused on ground 2
Appeal dismissed

Category: D

Representation:

Counsel:

Appellant	:	S D Freitag SC
Respondent	:	L M Fox SC & F Clare

Solicitors:

Appellant	:	Tudori Hager Grubb
Respondent	:	Director of Public Prosecutions (WA)

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

Bishop v The Queen [2003] WASCA 79
Brewerton v The State of Western Australia [2017] WASCA 191
CDL v The State of Western Australia [2022] WASCA 18
Coutts v The State of Western Australia [2023] WASCA 38
Crowley v The Queen (1991) 55 A Crim R 201
Curry v The State of Western Australia [2022] WASCA 36
Dair v The State of Western Australia [2008] WASCA 72; (2008) 36 WAR 413
Davidson v R [2022] NSWCCA 153
Green v The Queen [2011] HCA 49; (2011) 244 CLR 462
Gulyas v The State of Western Australia [2007] WASCA 263; (2007) 178 A Crim R 539
Holyoak v The Queen (1995) 82 A Crim R 502
House v The King [1936] HCA 40; (1936) 55 CLR 499
Hughes v The State of Western Australia [2014] WASCA 78
Jarvis v The Queen (1993) 20 WAR 201
Johnson v The Queen [2004] HCA 15; (2004) 78 ALJR 616
JRE v The State of Western Australia [2023] WASCA 100
Lewsam v The State of Western Australia [2016] WASCA 60
Lim v The State of Western Australia [2010] WASCA 186
LNV v The State of Western Australia [2021] WASCA 203
Longbottom v The State of Western Australia [2008] WASCA 203; (2008) 38 WAR 396
LYN v The State of Western Australia [2019] WASCA 45
Martino v The State of Western Australia [2006] WASCA 78
Mill v The Queen [1988] HCA 70; (1988) 166 CLR 59
Mohamed v The Queen [2022] VSCA 136
NI v The State of Western Australia [2020] WASCA 78
OTR v The State of Western Australia [No 2] [2022] WASCA 123
Penny v The State of Western Australia [2006] WASCA 249
Pilcher v HB Brady & Co Pty Ltd [2005] WASCA 159
Postiglione v The Queen [1997] HCA 26; (1997) 189 CLR 295
R v Bazley (1993) 65 A Crim R 154
R v Cumberbatch [2004] VSCA 37; (2004) 8 VR 9
R v Miller [2000] SASC 16; (2000) 76 SASR 151
R v Rossi (Unreported, CCA SA, 20 April 1988)
R v Schmidt [2011] QCA 133; (2011) 210 A Crim R 29
Re Calder; ex parte Cable Sands (WA) Pty Ltd (1998) 20 WAR 343
RGT v The State of Western Australia [2017] WASCA 120
Roffey v The State of Western Australia [2007] WASCA 246
Rosebridge Nominees Pty Ltd (in liq) v Commonwealth Bank of Australia [2018] WASCA 112
SAL v The State of Western Australia [2021] WASCA 192
Shi v The State of Western Australia [2020] WASCA 197
Stubley v The State of Western Australia [2010] WASCA 36
The State of Western Australia v BNY [2023] WASCA 84
The State of Western Australia v Harries-Markham [2022] WASCSR 31
UGN v The State of Western Australia [2021] WASCA 10
Vlek v The Queen (Unreported, CCA WASC, Library No 990153C, 29 March 1999)
Wark v The State of Western Australia [2023] WASCA 66
Willoughby v Clayton Utz [2007] WASCA 5

BUSS P:

The appellant appeals against sentence.
The appellant was convicted, on his pleas of guilty before Gething DCJ, of 419 counts in an indictment.
The offences comprised:
(a)43 counts of sexually penetrating a child under the age of 13 years;
(b)one count of attempted sexual penetration of a child under the age of 13 years;
(c)221 counts of indecent dealing with a child under the age of 13 years;
(d)122 counts of indecently recording a child under the age of 13 years;
(e)six counts of producing child exploitation material;
(f)25 counts of possessing child exploitation material; and
(g)one count of procuring a child under the age of 13 years to do an indecent act.

The offending related to 22 children.
On 30 November 2022, the sentencing judge imposed a total effective sentence of 25 years' imprisonment. The sentence was backdated to 21 July 2021 to take account of time the appellant had spent in custody solely in relation to the offending in question. A parole eligibility order was made.
The appellant relies upon two grounds of appeal. Ground 1 alleges, in essence, that the total effective sentence of 25 years' imprisonment infringed the first limb of the totality principle. Count 2 alleges, in essence, that the total effective sentence was 'crushing' within the second limb of the totality principle. On 27 February 2023, I referred the appellant's application for leave to appeal on grounds 1 and 2 to the hearing of the appeal.
I agree with Mitchell and Vandongen JJA that leave to appeal should be granted on ground 1, leave to appeal should be refused on ground 2 and the appeal should be dismissed.
I agree with the reasons of Mitchell and Vandongen JJA in relation to ground 1.
I will state my own reasons in relation to ground 2.

The facts and circumstances of the offending, the appellant's personal circumstances, the sentencing judge's sentencing remarks and the submissions of the parties in the appeal

The facts and circumstances of the offending, the appellant's personal circumstances, the sentencing judge's sentencing remarks and the submissions of the parties in the appeal are summarised in the reasons of Mitchell and Vandongen JJA. I will not repeat their Honours' summary except to the extent necessary to explain my reasons.

Ground 2 of the appeal

In their reasons, Mitchell and Vandongen JJA have questioned whether the second limb of the totality principle is 'a standalone principle'. Their Honours have suggested that a crushing sentence may not, on that basis alone, infringe the totality principle or otherwise establish error. Their Honours have also suggested that whether a sentence can properly be regarded as 'crushing' is merely one factor to be considered in deciding whether a total effective sentence is proportionate to the overall criminality of the offending behaviour. Those issues were not raised in the appeal by counsel for the appellant or counsel for the State. At the hearing some questions bearing on those issues were put to counsel for the appellant during his oral submissions on ground 2. However, counsel for the State was not called on in relation to ground 2. As I have noted, the court is unanimously of the opinion that leave to appeal on ground 2 should be refused.
In Mill v The Queen,[1] Wilson, Deane, Dawson, Toohey and Gaudron JJ referred to the totality principle as follows:
The totality principle is a recognized principle of sentencing formulated to assist a court when sentencing an offender for a number of offences. It is described succinctly in Thomas, Principles of Sentencing, 2nd ed (1979), pp 56-57 as follows (omitting references):
The effect of the totality principle is to require a sentencer who has passed a series of sentences, each properly calculated in relation to the offence for which it is imposed and each properly made consecutive in accordance with the principles governing consecutive sentences, to review the aggregate sentence and consider whether the aggregate is 'just and appropriate'. The principle has been stated many times in various forms: 'when a number of offences are being dealt with and specific punishments in respect of them are being totted up to make a total, it is always necessary for the court to take a last look at the total just to see whether it looks wrong[']; 'when ... cases of multiplicity of offences come before the court, the court must not content itself by doing the arithmetic and passing the sentence which the arithmetic produces. It must look at the totality of the criminal behaviour and ask itself what is the appropriate sentence for all the offences'.
See also Ruby, Sentencing, 3rd ed. (1987), pp 38-41. Where the principle falls to be applied in relation to sentences of imprisonment imposed by a single sentencing court, an appropriate result may be achieved either by making sentences wholly or partially concurrent or by lowering the individual sentences below what would otherwise be appropriate in order to reflect the fact that a number of sentences are being imposed. Where practicable, the former is to be preferred.
The totality principle has been recognized in Australia. In Reg v Knight ((1981) 26 SASR 573, at p. 576), the Full Court of the Supreme Court of South Australia (Walters, Zelling and Williams JJ) said, in a joint judgment:
[I]t seems to us that when regard is had to the totality of the sentences which the applicant is required to undergo, it cannot be said that in all the circumstances of the case, the imposition of a cumulative sentence was incommensurate with the gravity of the whole of his proven criminal conduct or with his due deserts. To use the language of Lord Parker LCJ in Reg v Faulkner ((1972) 56 Cr App R 594, at p 596), 'at the end of the day, as one always must, one looks at the totality and asks whether it was too much'.
See also Reg v Smith ((1983) 32 SASR 219); Ryan v The Queen ((1982) 149 CLR 1, at pp 21, 22 ‑ 23).
[1] Mill v The Queen [1988] HCA 70; (1988) 166 CLR 59, 62 ‑ 63.
In Gulyas v The State of Western Australia,[2] Steytler P (McLure & Miller JJA agreeing) carried out a detailed examination of the second limb of the totality principle. His Honour said [48] ‑ [51]:
Advanced age has sometimes been held to be relevant to the second limb of the totality principle, which is essentially to the effect that a sentence should not be imposed that is such as to destroy any reasonable expectation of a useful life after release: Martino v The State of Western Australia [2006] WASCA 78 [16]. For example, in Bishop v The Queen [2003] WASCA 79 [75], Parker J (with whom Malcolm CJ and Murray J agreed) noted that, in the case of an offender of very advanced age, a sentence that would otherwise be appropriate may be crushing because of the prospect of death before the term has been served. The same might be true in a case in which there is the prospect that death will follow very shortly after the term has been served.
However, the second limb of the totality principle is not an absolute principle. In Crowley (1991) 55 A Crim R 201, 205 ‑ 206, Crockett J (Southwell and Ashley JJ agreeing) said, in the Victorian Court of Criminal Appeal, that whilst a court may always be reluctant to impose a crushing sentence upon an offender, it does not follow that every sentence that deserves to be called crushing must on that account alone be held to be manifestly excessive. He said that there will be cases in which the offender has, by his or her criminal act or acts, forfeited the right to any hope or expectation of being released from confinement at a time that permits some useful period of life left over to enjoy.
Crockett J's comments were approved in Bazley (1993) 65 A Crim R 154. The court (Crockett, Hampel and Smith JJ) there said that, whilst the age of an offender is a relevant consideration of considerable significance in some cases, 'it cannot be allowed to be a justification for the imposition of an unacceptably inappropriate sentence' (158). The court also said that it was wrong to approach the question of an appropriate minimum term on the basis that there was a need to guarantee some measure of life after release. It said (159):
If such a course were followed it may lead … to an impermissible disregard of factors required to be taken into account such as general deterrence and retribution. The fact that the respondent did not require to be specifically deterred or rehabilitated cannot allow the part to be played by other relevant considerations to be obscured. Nor can those other considerations be disregarded by treating the question of the respondent's age as the primary consideration.
Similarly, in [Holyoak v The Queen (1995) 82 A Crim R 502] (507), Allen J said that it is not the law that it is never appropriate to impose a minimum term which will have the effect, because of the advanced age of the offender, that he or she may spend the whole of his or her remaining life in custody. (See also [R v Cumberbatch [2004] VSCA 37; (2004) 8 VR 9] [12] ‑ [13]).
However, in R v Miller [2000] SASC 16; (2000) 76 SASR 151, Doyle CJ, when considering the sentence imposed upon a man who had been convicted of six counts of murder, took into account the possibility that he might die in prison, or at best have a limited period of liberty after serving his sentence. He said that this would ordinarily require careful consideration of the totality principle and might well result in the reduction of a sentence or non‑parole period.
[2] Gulyas v The State of Western Australia [2007] WASCA 263; (2007) 178 A Crim R 539.
Those passages from Steytler P's reasons for judgment in Gulyas express the second limb of the totality principle as repeatedly accepted and applied in a multitude of subsequent decisions of this court. I will refer to the cases mentioned by his Honour.
In Martino v The State of Western Australia,[3] McLure JA (with whom Wheeler JA and I agreed) said:
The totality principle requires a judge who is sentencing an offender for a number of offences to ensure that the aggregation of the sentences appropriate for each offence is a just and appropriate measure of the total criminality involved: Postiglione v The Queen ((1997) 189 CLR 295 at 307 ‑ 308 per McHugh J). That is, the Court must review the aggregate sentence to ensure that it is just and appropriate for the offender's behaviour as a whole. An aggregate sentence may be inappropriately long even if it cannot be described as 'crushing': Jarvis v The Queen ((1993) 20 WAR 201 at 216 per Anderson J); Johnson v The Queen ((2004) 78 ALJR 616 at [22]). The word 'crushing' in this context connotes the destruction of any reasonable expectation of useful life after release: Vlek v The Queen (unreported; CCA SCt WA; Library No 990153C; 29 March 1999, at 12 per Anderson J).
[3] Martino v The State of Western Australia [2006] WASCA 78 [16].
In Bishop v The Queen,[4] Parker J (Malcolm CJ & Murray J agreeing) considered the significance of old age, especially when combined with ill health, in the context of the totality principle. His Honour said [75]:
It is not disputed that old age, particularly when combined with ill health, may properly be given significance as a mitigating factor. It provides a basis on which the Court, in the exercise of mercy, may impose a shorter sentence than might otherwise be appropriate. In a particular case it may also be relevant to a consideration of the question, which is of particular significance to the totality principle, namely, whether the total sentence imposed is a crushing one. In the case of an offender of very advanced age a sentence that would otherwise be appropriate may, in truth, be crushing in the relevant sense because of the prospect of death before the term has been served. These matters have been recognised in decisions such as Braham ((1994) 116 FLR 38); Smith v The Queen (unreported; CCA SCt of WA; Library No 940285; 2 May 1994); Austin v The Queen ((1996) 87 A Crim R 570); Schloss v The Queen ((1999) 100 A Crim R 80).
[4] Bishop v The Queen [2003] WASCA 79.
In Crowley v The Queen,[5] Crockett J (Southwell & Ashley JJ agreeing) noted the submission by counsel for the applicant (based on a number of observations and citations from authority collected in RG Fox and A Freiberg, Sentencing: State and Federal Law in Victoria (1985), pp 370 ‑ 371) that 'the applicant should be able to entertain some hope and expectation that he will be released from confinement at a time that will permit him to have some useful period of his lifetime left open to him to enjoy' (205 ‑ 206). His Honour then said (206):
However, whilst the Court must no doubt always be reluctant to impose upon an offender a sentence which can justifiably be described as crushing (see Yates [1985] VR 41; (1985) 13 A Crim R 319), it does not follow that every sentence which justifiably deserves that epithet must on that account and on that account alone be held to be manifestly excessive. There will, in my view, be cases in which the offender has by his criminal act or acts forfeited the right to any such hope or expectation. I have not been persuaded that this is not such a case.
[5] Crowley v The Queen (1991) 55 A Crim R 201.
In R v Bazley,[6] the Crown appealed against a sentence imposed on the respondent (who, at the time of the appeal, was aged 67) on two counts of murder, one count of conspiracy to murder and one count of theft. The Court of Criminal Appeal of Victoria allowed the appeal. Crockett, Hampel and Smith JJ held that the sentencing judge had erroneously adopted the approach of selecting a minimum term to be served by the respondent 'on the basis that there was a need to "guarantee", as it were, some measure of life after release' (159). Their Honours made these comments about the relevance of the respondent's age as a sentencing factor (158):
There can be no doubt (as the judge acknowledged) that but for the respondent's age, the minimum term fixed would have been at least double that which in fact was selected by the judge as being appropriate. The question to which this appeal gives rise is whether it was properly open to his Honour to give to the respondent's age the weight which the judge assigned to it. It was said on behalf of the respondent that it was so open in order that the judge should avoid the fixing of a term which was 'crushing'. In the majority judgment in R v Yates [1985] VR 41 at 48; (1985) 13 A Crim R 319 at 326 this court said that in a context such as that with which we are here concerned the word 'crushing' 'connotes the destruction of any reasonable expectation of useful life after release'. Whilst doubtless that definition may be accepted as accurate, it by no means follows that every sentence must be such as to avoid such an adjectival description. The age of an offender is no doubt a relevant sentencing consideration. It may in some cases be of considerable significance. But it cannot be allowed to be a justification for the imposition of an unacceptably inappropriate sentence.
See also Holyoak v The Queen;[7] R v Cumberbatch.[8]
[6] R v Bazley (1993) 65 A Crim R 154.
[7] Holyoak v The Queen (1995) 82 A Crim R 502, 507 (Allen J).
[8] R v Cumberbatch [2004] VSCA 37; (2004) 8 VR 9 [12] (Chernov JA; Vincent JA & Bongiorno AJA agreeing).
In R v Miller,[9] the applicant, Mr Miller, who was a sentenced prisoner but was not subject to an existing non‑parole period, made an application under s 32(3) of the Criminal Law (Sentencing) Act 1988 (SA) for the court to fix a non‑parole period. The Crown opposed the application. Mr Miller had been convicted of six counts of murder and was sentenced to life imprisonment on each count. Doyle CJ fixed a single non‑parole period of 35 years backdated to 23 May 1979, being the date on which the sentences of life imprisonment began. His Honour made the following remarks [49]:
The fact that a sentence is such that the prisoner might well die in prison, or will at best have a limited period of time in society at the end of the prisoner's life, would usually require careful consideration of the totality principle, and might well result in a reduction of the relevant sentence or non-parole period in the interests of mercy. However, for the reasons that I have given, I consider that the crimes committed by Mr Miller require a non‑parole period of the length that I have indicated. In arriving at this conclusion I have considered and taken account of the application of the totality principle. But for that principle I probably would have concluded that the non-parole period should be somewhat longer than 35 years.
[9] R v Miller [2000] SASC 16; (2000) 76 SASR 151.

Recently, in Wark v The State of Western Australia,[10] Mazza JA, Vaughan JA and I made these observations about the totality principle:
The first limb of the totality principle requires that the total effective sentence imposed on an offender who has committed multiple offences must bear a proper relationship to the overall criminality involved in all of the offences (including those, if any, in respect of which the offender has recently completed or is still serving a term of imprisonment), viewed in their entirety, and after having regard to all relevant circumstances, including those referable to the offender personally (and including, for example, the desirability of accommodating any wish to rehabilitate), and the total effective sentences imposed in comparable cases.
The practical effect of the totality principle is, ordinarily, to arrive at an aggregate sentence which is less than that which would have been arrived at merely by adding up all of the terms appropriate for the individual offences. See Roffey v The State of Western Australia ([2007] WASCA 246) [26] (McLure JA; Steytler P & Miller JA agreeing). Also, the severity or leniency of an individual sentence (which is not manifestly excessive or manifestly inadequate) is relevant in evaluating whether the total effective sentence infringes the first limb of the totality principle. See Giglia v The State of Western Australia ([2010] WASCA 9) [40] (Owen JA; McLure P & Pullin JA agreeing) and Gaskell v The State of Western Australia ([2018] WASCA 8) [52] ‑ [60] (Buss P), [150] ‑ [151] (Mazza & Beech JJA).
If, in a particular case where an infringement of the first limb of the totality principle is alleged, there are no directly comparable cases, this court is not precluded from deciding that a total effective sentence does or does not infringe the first limb of the totality principle. It merely has the consequence that this court has no directly comparable cases to provide a yardstick against which to judge the adequacy of the total effective sentence imposed at first instance. See Moore v The State of Western Australia ([2019] WASCA 35) [51] (Buss P & Mazza JA) and [The State of Western Australia v Paolucci [2020] WASCA 188 (Buss P, Mazza & Beech JJA)] [54].
The second limb of the totality principle is that the total effective sentence imposed on an offender should not constitute a 'crushing' sentence; that is, it should not destroy any reasonable expectation of useful life after release from custody.
Advanced age is a relevant consideration in determining whether a sentence will be crushing. The rationale is that each year of a sentence represents a substantial proportion of the period of life which is left to an offender of advanced age. See R v Hunter ((1984) 36 SASR 101), 103 (King CJ); Braham v The Queen ((1994) 116 FLR 38), 51 (Angel J); R v Whyte ([2004] VSCA 5; (2004) 7 VR 397), 405 ‑ 406 (Winneke P; Bongiorno & O'Bryan AJJA agreeing); Gulyas v The State of Western Australia ([2007] WASCA 263; (2007) 178 A Crim R 539) [34] (Steytler P; McLure & Miller JJA agreeing); and R v Iles ([2009] VSCA 197) [31] - [35] (Redlich JA; Neave JA agreeing).
However, whether and, if so, to what extent, leniency should be given to an offender of advanced age depends on all the facts and circumstances of the particular case. As Steytler P noted in Gulyas, the authorities emphasise that age is only one factor in the sentencing process, and that advanced age can never be a justification for a sentence which is not fairly proportionate to the offence or is otherwise inappropriate [35]. See also Hunter (103). An offence may be so serious that humanitarian considerations relating to advanced age cannot be accommodated.
So, the second limb of the totality principle is not absolute. There are cases in which an offender, by the very nature of their criminal acts, has forfeited the right to any expectation of being released from prison at a time that would permit them to enjoy their remaining life.
As a matter of fact, it is unusual for a total effective sentence to be reduced because it infringes the second limb of the totality principle. Even in circumstances where an offender is of advanced age, that fact alone does not necessarily require a reduction in sentence.
[10] Wark v The State of Western Australia [2023] WASCA 66 [633] ‑ [640].
The first limb of the totality principle requires that the total effective sentence imposed on an offender who has committed multiple offences must bear a proper relationship to the overall criminality involved in all of the offences, having regard to all relevant sentencing factors, including the offender's age, state of health and other personal circumstances when sentenced.
A total effective sentence is formulated in accordance with the first limb without regard to whether the proposed total effective sentence, if imposed, will be 'crushing', in the sense that the sentence will or is likely to destroy any reasonable expectation of useful life after release.
The second limb is concerned with whether a proposed total effective sentence, formulated in accordance with the first limb, will or is likely to destroy any reasonable expectation of useful life after release.
It must be emphasised that the second limb is not an absolute principle. It may be that the nature, quality and extent of an offender's overall criminal behaviour requires the conclusion that humanitarian considerations (invariably relating to advanced age) cannot be accommodated and, consequently, that a proposed total effective sentence formulated in accordance with the first limb cannot be ameliorated. It is of significance that the notion of 'crushing', in this context, is concerned with the destruction of any reasonable expectation of useful life after release. The second limb cannot be applied to produce or justify a total effective sentence that is inadequate having regard to the nature, quality and extent of an offender's overall criminal behaviour. A sentencing judge, in applying the second limb, is in effect taking a 'last look' at the proposed total effective sentence, formulated in accordance with the first limb, to evaluate whether humanitarian considerations (invariably relating to advanced age) can be accommodated.
Ordinarily, as a matter of fact, only the first limb of the totality principle will be relevant in sentencing an offender who has committed multiple offences. Ordinarily, as a matter of fact, the second limb will only be relevant where the offender is of advanced age or, perhaps, where the offender will or is likely to die during or shortly after release from custody even though the offender is not of advanced age when sentenced.
The first limb of the totality principle may be infringed in circumstances where the total effective sentence does not or is unlikely to destroy any reasonable expectation of useful life after release.
A total effective sentence that will or is likely to destroy any reasonable expectation of useful life after release will not necessarily infringe the second limb of the totality principle.
For many years this court has stated repeatedly, based on Steytler P's reasons in Gulyas, that the totality principle comprises the two limbs described in Wark [633] ‑ [640].
Similar and recent pronouncements to those in Wark about the first and second limbs of the totality principle may be found in the reasons for judgment of:
(a)Quinlan CJ and Mazza and Mitchell JJA in LNV v The State of Western Australia;[11]
(b)Mitchell and Beech JJA and me in Curry v The State of Western Australia;[12] and
(c)Mazza, Beech and Hall JJA in Coutts v The State of Western Australia.[13]
[11] LNV v The State of Western Australia [2021] WASCA 203 [46] ‑ [47].
[12] Curry v The State of Western Australia [2022] WASCA 36 [54].
[13] Coutts v The State of Western Australia [2023] WASCA 38 [69].
The first and second limbs of the totality principle, as stated repeatedly by this court, have been applied on countless occasions and without any apparent difficulty in the General Division of the Supreme Court, the District Court and the Magistrates Court.
It is unusual for this court to allow an offender's appeal against sentence on the basis that the total effective sentence imposed by the primary judge infringed the second limb of the totality principle. However, appeals have been allowed from time to time on the ground of an infringement of the second limb. See, for example, Penny v The State of Western Australia;[14] Dair v The State of Western Australia;[15] Stubley v The State of Western Australia;[16] Hughes v The State of Western Australia.[17]
[14] Penny v The State of Western Australia [2006] WASCA 249.
[15] Dair v The State of Western Australia [2008] WASCA 72; (2008) 36 WAR 413.
[16] Stubley v The State of Western Australia [2010] WASCA 36.
[17] Hughes v The State of Western Australia [2014] WASCA 78.
No doubt, a proposed total effective sentence has been reduced occasionally, in accordance with the second limb of the totality principle, in the General Division of the Supreme Court, the District Court and the Magistrates Court.
This court may depart from an earlier decision of the court if satisfied that the earlier decision was 'manifestly wrong' or where it 'entertains a strong conviction as to the incorrectness of the earlier decision' or when there is some other compelling reason why the previous decision should no longer be followed. See Re Calder; ex parte Cable Sands (WA) Pty Ltd;[18] Pilcher v HB Brady & Co Pty Ltd;[19] Willoughby v Clayton Utz;[20] Green v The Queen;[21] Brewerton v The State of Western Australia.[22] The practice in Western Australia has generally been that if it is sought to persuade this court to depart from an earlier decision, a bench of five judges will be convened to resolve the issue. However, even in those cases, a bench of five judges will not lightly depart from an earlier decision. See Re Calder (354); Longbottom v The State of Western Australia.[23] Further, this court will not lightly depart from an earlier decision, least of all, in circumstances in which the later court comprises only three judges. See Rosebridge Nominees Pty Ltd (in liq) v Commonwealth Bank of Australia.[24]
[18] Re Calder; ex parte Cable Sands (WA) Pty Ltd (1998) 20 WAR 343, 354 (Steytler J; Kennedy, Pidgeon, White & Wheeler JJ agreeing).
[19] Pilcher v HB Brady & Co Pty Ltd [2005] WASCA 159 [24] ‑ [26] (Steytler P, Wheeler, Roberts‑Smith, McLure & Pullin JJA).
[20] Willoughby v Clayton Utz [2007] WASCA 5 [37] (Wheeler JA; Steytler P & Pullin JA agreeing).
[21] Green v The Queen [2011] HCA 49; (2011) 244 CLR 462 [83] ‑ [87] (Heydon J).
[22] Brewerton v The State of Western Australia [2017] WASCA 191 [34] (Martin CJ, Mazza & Mitchell JJA).
[23] Longbottom v The State of Western Australia [2008] WASCA 203; (2008) 38 WAR 396 [22] (Wheeler JA).
[24] Rosebridge Nominees Pty Ltd (in liq) v Commonwealth Bank of Australia [2018] WASCA 112 [57] (Buss P, Murphy JA & Allanson J).
In my opinion, the first and second limbs of the totality principle, as stated repeatedly by this court, are not erroneous. The earlier decisions of this court in relation to the second limb and its interaction with the first limb are not wrong, let alone manifestly wrong. I do not have a conviction, let alone a strong conviction, that the earlier decisions are incorrect. There is no reason, let alone a compelling reason, why the earlier decisions should not continue to be followed.
In the present case, the appellant's offending was, without doubt, extremely serious.
The facts and circumstances of the appellant's overall offending are not truly comparable with the facts and circumstances of offending in any prior cases.
The appellant was born in 1975. When the total effective sentence began (on 21 July 2021) the appellant was aged 46. He will not be eligible to be considered for release on parole until 21 July 2044, when he will be aged 69. If he is not released on parole the appellant will be aged 71 when he completes serving the total effective sentence.
When he was sentenced the appellant appears to have been in reasonably good physical health for a man of his age. A psychiatric report dated 21 June 2022 from Dr Nicholas Ho, Consultant Psychiatrist, states that the appellant has 'no regular medications for physical health issues'.
In my opinion, it is not reasonably arguable that the overall total effective sentence of 25 years' imprisonment infringed the second limb of the totality principle. It is not apparent that the total effective sentence will or is likely to destroy any reasonable expectation of useful life after release. In any event, the extremely serious nature of the appellant's overall offending, and the necessity for appropriate punishment, denunciation of his criminal conduct and the demands of general deterrence, required a total effective sentence of the length imposed by his Honour. A more lenient total effective sentence would not have been appropriate.
Ground 2 did not have a reasonable prospect of success. Leave to appeal on ground 2 must therefore be refused.

MITCHELL & VANDONGEN JJA:

Over a period of approximately six years, and on an enormous number of occasions, the appellant sexually abused a total of 22 children, including his four biological children, his niece and nephew, and the children of family friends and neighbours. All of the appellant's abuse was recorded. Sometimes the appellant used hidden cameras. On other occasions he used handheld or head strap cameras to record his offending conduct. In addition to his acts of child sexual abuse, the appellant was found in possession of an enormous quantity of electronically stored and categorised child exploitation material (CEM).
The sentencing judge remarked that the appellant's offending, viewed as a whole, represented one of the worst cases of its kind to come before the courts of Western Australia.
The appellant was sentenced to a total term of 25 years' imprisonment, and made eligible for parole. He now seeks leave to appeal against that sentence, contending that the sentence is, firstly, 'manifestly excessive', and secondly, that it is 'crushing'.
The appellant's application for leave to appeal on both grounds was referred to the hearing of the appeal. For the reasons that follow, although we would grant leave to appeal on ground 1, that ground is not made out. We would refuse leave to appeal on ground 2.
In those circumstances the appeal must be dismissed.

The facts of the offending

It is necessary to set out the facts of the offending in some detail. However, the facts read aloud by the prosecutor at sentencing are recorded in approximately 100 pages of transcript. Accordingly, what follows is a summary of the factual basis for sentencing.
Between 2015 and 2021, the appellant committed 419 sexual offences against children. These offences comprised of 43 counts of sexual penetration of a child under the age of 13 years, one count of attempting to sexually penetrate a child under the age of 13 years, 221 counts of indecent dealing with a child under the age of 13 years, one count of procuring a child under the age of 13 years to commit an indecent act, 122 counts of indecently recording of a child under the age of 13 years, six counts of producing CEM, and 25 counts of possessing CEM.
The 22 victims came from 14 separate families, including his own. The children's ages ranged from just 2 years of age to 13 years of age, and the majority of the offences were committed against children under the age of 10.
The appellant offended against all of his four children. Of the 419 offences, 274 of them were committed against his youngest daughter, over 153 separate incidents while she was aged between two and eight years of age.
In addition, the appellant was found to have possessed approximately 1 million images and 30,000 videos of CEM, which he had methodically classified across 26 separate electronic devices. This material constituted the 25 counts of possession of CEM.
The appellant met his former wife while they were still studying at university. They married, started a business, and had four children together. They lived in a house on a large property, where there were lots of animals, an outside play area, and a pool. The appellant's family were very social, and other children often visited their house. It was not uncommon for there to be 10 to 15 children visiting at one time, with or without their families.
In 2018, one of the appellant's daughters told her mother that she had found something in the bathroom. She handed her mother a camera, which she had found attached to a shower rail. The camera had a blinking red light and appeared to be on. Her mother then searched the bathroom and found another camera. When he was confronted by his wife at the time, the appellant denied any knowledge of either device.
From 2018 until she separated from the appellant in late 2019, the appellant's wife became more and more suspicious about the appellant's behaviour. When they separated, they agreed that the children would stay at the family home, and they would each take turns looking after the children there.
In December 2019, the appellant met a new partner who had two children of a similar age to his own. The appellant subsequently moved in with his new partner, and his wife moved back into the family home. It was then that she found a thumb drive she had not seen before. When she opened it on a computer, she saw that it contained photographs of young girls in gym or sports uniforms doing poses with their legs in the air. She took the USB to the police, but it was found not to contain CEM.
Later, in 2021, the appellant's wife found some further USB thumb drives and a memory storage card at their business premises. The cards appeared empty, but a data recovery program showed that one of the USBs contained 157 gigabytes of deleted images of young children around six to eight years old, performing sexual acts with adults. An examination of the devices by police revealed CEM and footage from two deleted videos. One video recorded one of the appellant's daughters, and the daughter's friend, in the daughter's bedroom in stages of undress. The other video contained footage from the children's bathroom of a neighbour's son having a shower and drying himself.
Police then executed search warrants at the appellant's home and place of business. Several items were seized, including a bag found in one of the children's bedrooms. Inside the bag was a laptop and a large number of USBs and hard drives in a waterproof bag, as well as a number of recording devices. The appellant admitted to police that he owned the devices and said that there might be material related to child exploitation on them.
Over an extended period of time, detectives reviewed the extraordinarily large number of videos and images found on the devices. Amongst other things they identified hundreds of videos (including videos taken using surveillance devices), and images taken by the appellant. The material recorded him offending against 22 children, including his four biological children, his neighbour's children, his niece, his nephew, and his children's friends.
The offences charged were based on a review of the videos. None of the children offended against made any disclosures to police.
The following is taken from the sentencing judge's unchallenged summary of the appellant's offending. For convenience we have summarised the offences into groups based, in the main part, on the victims of the offences. We will start with the offences committed against the appellant's youngest daughter.

Offending against the appellant's youngest daughter[25]

[25] Counts 2 - 22, 31 - 32, 35, 37, 43, 45 - 49, 53 - 60, 63, 68, 73 - 78, 81 - 86, 89 - 101, 103 - 128, 133, 138, 141 - 147, 151 - 167, 172 - 173, 175 - 178, 183, 185 - 186, 188 - 189, 191 - 192, 194 - 214, 216 - 223, 225 - 226, 230 - 258, 260 - 261, 269 - 270, 272, 276 - 280, 283 - 284, 290 - 291, 294, 300 - 302, 305 - 331, 333 - 338, 340, 342, 345, 354, 359 - 367, 370 - 373, 375, 377, 379 - 381, 383 - 384, 386 - 388, and 390 - 393.

The appellant committed 274 offences against his youngest daughter over a period of about six and a half years, between January 2015 to July 2021. Those offences occurred during 153 separate incidents. The sentencing judge said it was difficult to put into words the depravity of the appellant's offending. We agree.
The sentencing judge said that mere reference to the number of offences committed would not reveal that on many occasions the offending was prolonged or involved multiple offences. He also said that the number of offences would also not reveal the truly egregious and depraved nature of the offending. He said the only way the nature of the offending could be illustrated, for the purposes of his sentencing remarks, was to give the following example:
The victim [was] then aged between seven and eight years, between 1 January 2019 and 31 March 2021, the appellant … drove to your … house located in … with your four children. Your wife, their mother, remained at home. On the drive to your … house, you stopped by the side of the road and administered Phenergan to [your daughter]. After dinner at your … house, you administered a second dose of Phenergan to [your daughter]. Once [she] was asleep in her bed, you entered her bedroom, carrying a torch and a GoPro camera. [She] did not flinch in any way or wake up during the period of time whilst you performed sexual acts to her over a two-hour period. [She] was asleep in the bottom bunk of a white bed. She was observed to be wearing a red masquerade mask over her eyes. You moved the covers of the bed, lifted her pyjama top and exposing her chest. Her legs were apart and you used your hands to pull her underwear to one side, exposing her vagina. You placed your finger between her vagina and rubbed her clitoris, and that is count 311, sexual penetration by rubbing her clitoris. You then removed her knickers and dressed her in black, crotchless, fishnet stockings. [She] was still wearing the red masquerade mask. That is count 312, indecent dealing. You then crouched down next to [her], masturbating. You spread her legs apart, recording close-up footage of her vagina. You then used your fingers to spread her vagina apart, exposing her vagina and her clitoris. You then rubbed [her] vagina whilst masturbating. That is count 313, another offence of indecent dealing. You captured close-up footage of [her] genitals. You picked up a black sex toy, which was a penis-shaped sex toy, and rubbed it against her vagina. That is count 314, another instance of indecent dealing. You then placed a black butterfly-looking G-string on [her]. You then placed the underwear back on her, spread her legs apart, pulling down her underwear, exposing her vagina. You opened a massage oil bottle and poured oil over her crutch area on top of her underwear. She was disturbed by your actions and rolled over. With [her] laying on her side, you pulled her underwear down. The recording went black and returned to the victim laying on her back. [She] was no longer wearing the mask and was now wearing a different pair of underwear. You made a slight cut at the crotch area of the underwear, exposing her genitals. That is count 315, another offence of indecent dealing. You rubbed [her] vagina with your fingers and inserted your tongue into her vagina, performing cunnilingus on and off on a number of occasions. That is count 316, sexual penetration. Over this period of time, you produced videos and images of [her] that is likely to offend a reasonable person. You dressed her in a red masquerade mask, stockings, black butterfly G-string and black crotchless underwear. You used a black butt plug shaped like a penis on her. [She] did not wake while you dressed her in different outfits and videoed her in different positions over an extended period of time. That is count 317, producing child exploitation material.[26]
[26] Transcript 30 November 2022, 153 - 154.
Before concluding his summary of the offences committed by the appellant against his youngest daughter, the sentencing judge said the following:
You offended against her in the pool, in her bed, in your bed, her sister's bed, her grandmother's house, in your holiday home, in her bathroom, in your bathroom. There was no place for [her] that was safe. She accepted your behaviour as her reality. This was a complete and utter betrayal of her childhood.[27]
[27] Transcript 30 November 2022, 157.
The appellant committed a total of 40 offences of sexual penetration of a child under the age of 13 years against his youngest daughter. They comprised two offences where he penetrated her vagina with his penis, one offence where he attempted to penetrate her vagina with his penis, 13 offences where he inserted his tongue into her vagina, one offence where he placed his penis into her mouth, nine offences in which he penetrated her vagina with his finger, eight offences in which he penetrated her anus with a finger, two offences where he penetrated her vagina with a sex toy, one offence where he penetrated her anus with a battery-operated candle and three offences in which he rubbed her clitoris.
The appellant also committed a total of 182 counts of indecent dealing, contrary to s 320(4) of the Criminal Code (WA) (Code).[28] These included multiple occasions where he touched her vagina, including by rubbing cream onto it, touched her anus, including by rubbing cream onto it, rubbed her vagina with his penis, and rubbed a sex toy against her genitals. The offences revealed that the appellant had an entrenched pattern of entering his youngest daughter's room at night while she was sleeping and then committing sexual offences. The sentencing judge found that he did this on 91 separate occasions.
[28] This includes one count of encouraging a child to do an indecent act, and one count of procuring a child to do an indecent act, both contrary to s 320(5) of the Code.
The appellant pleaded guilty to 46 counts of indecently recording his daughter, contrary to s 320(6) of the Code, and to six counts of producing child exploitation material, contrary to s 218. Those offences were concerned with the numerous times the appellant moved the youngest daughter's clothes to expose her vagina or bottom, which are the subject of many of the indecent dealing offences. The appellant often went further by touching her vagina or anus to obtain more graphic recordings and images. On multiple occasions he also committed the specific offences involving penetration that we have already mentioned. Most of the time he masturbated while doing these acts, often to ejaculation.
The sentencing judge also found that the appellant had an established pattern of behaviour in which he would surreptitiously film his daughter while she was getting changed or in the bath. Thirty-seven of the recording offences against his youngest daughter included videos of her changing, or in the bath, with her brother or other children present.
Each offence committed against his daughter was recorded, often on multiple devices.

Offending against the appellant's son[29]

[29] Counts 1, 44, 179, 181, 183, 187, 190, 193, 215, 224, 227, 229, 273, 304, 339, 341, 368, 376, 382, and 385.

This group of offences principally comprise charges of indecently recording a child under the age of 13 years, contrary to s 320(6) of the Code. Counts 224 and 368 comprise charges of indecently dealing with a child under the age of 13 years, contrary to s 320(4).
These counts relate to the appellant's only son, who was aged between three and seven years of age during the period of the offending. The sentencing judge found that the most serious offending was the conduct the subject of count 224, which occurred when the family was at their holiday house. On that occasion the appellant removed his son's pyjama bottoms, squirted cream into the middle of his buttocks, pulled his knees up to his chest and rubbed the cream in between his bottom cheeks.
The remaining counts involved the appellant surreptitiously recording his son by placing hidden devices in places such as bathrooms. He sometimes recorded his son by using a handheld device. The appellant captured images of his son's penis and bottom, and on one occasion pulled down his pyjama pants to obtain such a photo. In some of the offending, the appellant recorded his son with the appellant's youngest daughter present.

Offending against the appellant's middle daughter[30]

[30] Counts 33, 87, 129, 149, 264, 268, 271, 288, and 296.

This group of offences comprised charges of indecently recording a child under the age of 13 years, contrary to s 320(6) of the Code.
These counts relate to the appellant's middle daughter, who was offended against on nine occasions between the ages of 7 and 10. Almost all the recordings were obtained by the appellant surreptitiously recording his daughter getting changed, capturing her chest, vagina and bottom. On most occasions, the appellant's daughter was with one of her friends. On one occasion, he filmed her on the toilet. On another, he filmed her vagina when she was asleep.

Offending against the appellant's eldest daughter[31]

[31] Counts 29, 266, and 355.

This group of offences comprised charges of indecently recording a child under the age of 13 years, contrary to s 320(6) of the Code.
The appellant offended against his eldest daughter, who was then between the ages of 9 and 12. The appellant sexually offended against her by surreptitiously recording her on three occasions when she was getting changed with one of her cousins.

Offending against child A[32]

[32] Counts 23 - 25, 28, 34, 36, 38 - 39, 41, 52, 61, 64, 67, 70, 88, 130, 134 - 137, 150, 168 - 171, 174, 180, 184, 263, 265, 275, 293, 295, 297, and 419.

As well as offending against his own children, the appellant committed sexual offences against several of his neighbours' children, and the children of other family friends.
The offences listed here relate to a child we will refer to as 'A'. This group of offences comprise charges of indecently dealing with a child under the age of 13 years, contrary to s 320(4) of the Code (counts 23, 61, 134 - 135, 168 - 171, 263, 275, 293, 295, and 419), and charges of indecently recording a child under the age of 13 years, contrary to s 320(6) (counts 24 - 25, 28, 34, 36, 38 - 39, 41, 52, 64, 67, 70, 88, 130, 136 - 137, 150, 174, 180, 184, 265, and 297).
The appellant committed 36 offences against A when she was between four and nine years of age. The offending occurred when A was staying the night, getting changed, or having a meal at the appellant's house. On 18 occasions the appellant indecently recorded A either by using a hidden camera or a handheld GoPro camera. On one occasion, the appellant recorded her from under the dining table, trying to capture her underwear. On another he did the same thing when she was sitting on the floor.
The appellant often recorded A with the appellant's second-eldest daughter. On one occasion, the appellant used the light from a camera to illuminate A's vagina, and on another, used a torch. The 13 counts of indecent dealing against A mostly involve the appellant arranging her clothes to expose her vagina and bottom, and on one occasion, her chest. On two occasions he touched her vagina. Some of the offending was prolonged and took place for over an hour, including one event during which the appellant was masturbating.

Offending against child B[33]

[33] Counts 27, 40, 42, 65, 71, and 72.

The offences listed here relate to a child we will refer to as 'B'. This group of offences principally comprise charges of indecently recording a child under the age of 13 years, contrary to s 320(6) of the Code. Count 27 is a charge of indecently dealing with a child under the age of 13 years, contrary to s 320(4).
The appellant committed six offences against B while he was between four and seven years of age. The indecent recordings were of B getting changed at the appellant's home, mostly with his sister present. In one of the offences, the appellant recorded himself touching B's penis when he had fallen asleep on a couch at the appellant's home.

Offending against child C[34]

[34] Counts 30, 50 - 51, 262, 267, 281 - 282, 289, 349, and 356.

The offences listed here relate to a child we will refer to as 'C'. This group of offences comprise charges of indecently dealing with a child under the age of 13 years, contrary to s 320(4) of the Code (counts 50 ‑ 51, and 349), and charges of indecently recording a child under the age of 13 years, contrary to s 320(6) (counts 30, 262, 267, 281 - 282, 289, and 356).
The child C is the appellant's niece. The victim's family was very close to the appellant's family, and the children of that family would often say over at the appellant's home. The appellant offended against C when she was between the ages of 9 and 14. The three most serious offences involved touching her vagina, pulling aside her underwear, or arranging her clothing to expose her underwear while she slept. One of these offences took place on Australia Day 2018, when the appellant committed several offences against several children while they were asleep in his daughter's bedroom (count 349).
On two further occasions, the appellant surreptitiously recorded C's crotch area. On five occasions, he covertly recorded her getting changed, capturing images of her chest, vagina, and bottom.

Offending against child D[35]

[35] Counts 26, 66, 69, 102, 131 - 132, 259, 274, 303, 332, 357, 358, and 389.

The offences listed here relate to a child we will refer to as 'D'. This group of offences comprise charges of indecently dealing with a child under the age of 13 years, contrary to s 320(4) of the Code (counts 69, 102, 132, 259, 303, 332, and 357), charges of indecently recording a child under the age of 13 years, contrary to s 320(6) (counts 26, 66, 131, 274, and 389), and one charge of sexually penetrating a child under the age of 13 years, contrary to s 320(2) of the Code (count 358).
The victim in relation to these counts, D, is the appellant's nephew. Over a five-year period, when D was between the ages of 7 and 11, the appellant committed 13 offences against him on 12 separate occasions. The most serious of those offences occurred when D had just turned 10, and the two families were on a camping trip together. The appellant went into the tent that D was in, carrying a torch with a GoPro camera that was attached to his head. The appellant fondled D's penis with his fingers before pulling down his pants to expose his penis. The appellant then performed oral sex on D for a short period of time, while he was asleep.
On seven other occasions, the appellant made a recording of D while he slept, exposing his penis, and on one occasion he rubbed it. On four other occasions, the appellant surreptitiously captured images of D's penis while he slept.

Single-instance offending[36]

[36] Counts 79 - 80, 139 - 140, 148, 343 - 344, 346 - 348, 350 - 353, 374, and 378.

It is convenient to deal with these counts at the same time because, in general, they concern occasions on which the appellant offended against a child for the first and only time.
At some time during 2016, two nine-year-old girls were at the appellant's home for a playdate with one of his daughters. The girls were in a toy room getting changed out of costumes and their exposed chests were recorded by a hidden camera, contrary to s 320(6) of the Code (counts 79 and 80).
In June 2016 the appellant was at the family beach house. A nine‑year‑old girl had visited with her mother and three siblings for a day during school holidays. The girl and her seven-year-old sister ended up staying overnight at the beach house. While the two children were sleeping, the appellant entered the bedroom carrying a torch and GoPro camera. He pulled one child's pyjama bottoms down, exposed her vagina and took close-up images of her bottom and her vagina. He also pulled down the other child's pyjama bottoms to expose her bottom and vagina, before taking close-up footage of the victim's vagina. He then lifted up the child's top to expose her chest area before the victim was disturbed. On a further five occasions during the same night, he tried to obtain further indecent footage of both children. This offending was the subject of counts 139 and 140, contrary to s 320(4) of the Code.
On New Year's Eve 2018, a 10-year-old boy went to the appellant's home with his parents. The appellant had set up a recording device hidden in the spare bedroom. During the day, the boy went into the spare bedroom to change out of his bathers. His penis was exposed while he changed. This offending was the subject of count 148, contrary to s 320(6) of the Code.
The appellant committed several offences against young children on one day in 2018, when there were a number of family friends who were at his house to celebrate Australia Day (counts 343-353).
We have referred briefly to counts 345 and 349 above, offences the appellant committed against several children who were celebrating Australia Day at his house. The following paragraphs [93] - [98] describe further offences he committed on that same day.
The appellant indecently recorded an eight-year-old girl, by covertly filming her getting changed out of her bathers using a device he had set up in his daughter's bedroom. Footage was captured of her exposed vagina (count 343). At the same time, and using the same device, the appellant recorded a 10-year-old girl's chest while she changed from her bathers. The girl was the daughter of one of the appellant's friends (count 344). Both offences were contrary to s 320(6) of the Code.
The appellant committed a further three offences on that day against a 12-year-old girl. During the night, the appellant recorded her getting changed in his daughter's bedroom, capturing images of her breasts and vagina,[37] contrary to s 320(6) of the Code (count 353). While the child slept on a mattress on the bedroom floor, the appellant entered the room with a GoPro and recorded himself lifting up her knickers to expose her vagina. He then left the room, but returned and tried to do the same thing again, contrary to s 320(4) of the Code (counts 347 and 348).
[37] The sentencing judge incorrectly said that the appellant had 'pulled on her knickers' (ts 181), but the facts relied on by the prosecution were that it was the victim who had pulled on her knickers.
Another child was asleep in the room, a seven-year-old girl who was the daughter of family friends. While she was lying on a mattress the appellant pulled her shorts aside and exposed her vagina. He then rubbed her vagina with his fingers and spread her labia apart, contrary to s 320(4) of the Code (count 346).
Another victim to the appellant was a five-year-old boy who was asleep on a mattress in the toy room. The appellant went into the toy room with a torch and a GoPro, which he used to record himself committing three offences. He pulled down the boy's pyjama bottoms, exposing his bottom. He then recorded the boy's exposed penis and exposed anus, touched his penis and penetrated his anus with a finger. These offences were contrary to s 320(2) and (4) of the Code (counts 350 - 352).
The appellant set up recording devices in the bedrooms of his partner's home. Between March 2020 and the end of 2021, the appellant offended against one of his (now deceased) partner's daughters, who was between eight and nine years of age at the time. He recorded the victim taking off her bathers and showering. Her chest, bottom and vagina were all exposed. This comprised an offence contrary to s 320(6) of the Code (count 374).
Between January 2021 and April 2021, when the appellant was living at his partner's house, he had a recording device set up in one of the bedrooms. He used this device to record an 11-year-old friend of his children, getting changed out of her bathers into dry clothes. The child's chest area was exposed. This was an offence contrary to s 320(6) of the Code (count 378).

Offending against child E and her sister[38]

[38] Counts 285 - 287, 298 - 299, and 369.

The offences listed here relate to a child we will refer to as 'E', and to her sister. This group of offences comprise charges of indecently dealing with a child under the age of 13 years, contrary to s 320(4) of the Code (counts 285, 286, 298, 299, and 369), and one charge of sexually penetrating a child under the age of 13 years, contrary to s 320(2) of the Code (count 287).
The child E was nine years of age, and a friend of the appellant's daughter. The appellant offended against E on three separate occasions during sleepovers with his daughter. The first time he offended against her, the appellant pulled down her pyjamas to expose her vagina while she slept. He then masturbated over her, and used her hand to masturbate himself. He also put his finger between the lips of her vagina. These offences were contrary to s 320(2) and (4) of the Code (counts 285 - 287).
On the second and third instances, the appellant used a GoPro camera to capture images of E's bottom and vagina after he pulled down her pyjama pants while she was asleep, contrary to s 320(4) of the Code (counts 298 and 369).
The appellant offended against E's sister on the same night as the events that constitute count 298. The appellant pulled up the child's top and tried to move her pants down, but she stirred. He then tried to pull her pants down from the front but was again unsuccessful. He continued to try to pull her pyjama pants down, eventually obtaining footage of her exposed vagina, contrary to s 320(4) of the Code (count 299).

Child exploitation material[39]

[39] Counts 394 - 418.

The offences in this group were concerned with the appellant's possession of child exploitation material, contrary to s 220 of the Code. Each count related to a specific electronic device found at the appellant's business or at the family home. In total there were 26 devices, comprising USB thumb drives and external hard drives.
The prosecutor read detailed facts about the images and videos found on each device. The sentencing judge summarised those facts as follows:
The child exploitation material was found on 26 different devices. The child exploitation material is categorised on two scales, the first is the one that's traditionally used or is the practice in this jurisdiction, the categories are as follows. Category 1, images and videos depicting children under the age of 16 in sexual or indecent photographs, either naked or semi-naked. There are 288,545 images and 1,184 videos in this category. Category 2 are images and videos depicting children under the age of 16 years engaged in sexual activity, penetrative or non‑penetrative, with other children. There were 7,512 images and 871 videos in this category. Category 3 is images and videos depicting children under the age of 16 years engaged in penetrative sexual activity with children and adults. There were 19,875 images in this category, as well as 323 videos. Category 4, images and videos depicting children under the age of 16 years engaged in penetrative sexual activity with adults. There were 14,771 images and 1,627 videos in this category. Category 5 is images and videos depicting sadism, bestiality and humiliation, including urination, defecation, vomit, bondage and the like. There were 1,344 images and 151 videos in this category. Category 6 is animated or virtual, and there were 45 images.
There is then a second category, which is the V-I-C-S child abuse category, which is an internationally regarded category. And under this categorisation, there were nearly a million images of uncategorised child exploitation material, and nearly 30,000 videos of uncategorised child exploitation material. When police were interrogating the devices found in your possession, they found a methodical classification of the child exploitation material. Police also found that you'd methodically classified the videos you'd taken of your own children and of the other children.[40]
[40] Transcript 30 November 2022, 168 - 169.
At the hearing of the appeal, counsel for the respondent confirmed that there were approximately 1 million images and 30,000 videos across the 26 devices that amounted to CEM. The appellant did not take issue with those estimates.

Victim impact statements

The sentencing judge had regard to several victim impact statements. Most of those statements were written by the parents of the very young victims, many of whom are apparently unaware of what had been done to them. The sentencing judge observed that he was only able to use those statements to the extent that they provided information about the impact of the appellant's offending on the victims of his crimes.
The victim impact statements speak of feelings of fear, distress and anxiety, confusion, guilt, grief at the loss of friendships, and of suffering negative social effects. Even without the benefit of victim impact statements from the children themselves, it is clear that the appellant's crimes have had, continue to have, and may in the future have, a destructive effect on the lives of the children he offended against.
Counsel for the appellant submitted that many of the children who were abused by the appellant are unaware of what the appellant did to them. This may be the case. However, there is no way of knowing whether any given child will remain ignorant of the appellant's crimes for the rest of their lives. Further, the appellant's conduct has, in many ways, placed the parents of his victims in the invidious position of having to make judgments about whether, and if so, when, to tell their children what happened to them.

Appellant's personal circumstances

The appellant was 47 years old when he was sentenced. He was born in Western Australia, is the youngest of four siblings, and came from a good family. His parents were still together at the time he was sentenced and were supportive of him. He had a positive childhood and there was nothing before the sentencing judge to suggest that he experienced any trauma or abuse as a child.
His secondary schooling was a positive experience, and upon completing year 12 he undertook a Bachelor of Business with an emphasis on horticulture. He held full-time employment in fruit exportation, and eventually developed his own business in that field. For a long period of time the business was successful. However, in 2020, the business began to experience financial difficulties. According to the appellant, the business eventually failed, leaving millions of dollars in debt.
The appellant met his former wife in 1997 while they were at university. They married in 2002 and had four children together. The appellant and his former wife had separated before the offences were uncovered. Shortly after separating, the appellant met another woman, and they commenced a relationship. That woman passed away in an accident in 2021, in which the appellant also sustained serious injuries.
The appellant had no prior criminal history. However, the sentencing judge found that the nature and extent of his offending precluded a finding that the offending was an aberration, or that he was unlikely to offend again.
The appellant had a history of self-harm. He attempted suicide around the time of his separation from his former wife. He also experienced suicidal ideation following the death of his partner, and engaged in serious self-harm when he was arrested. At the time of sentencing, the appellant had been assessed as having a major depressive disorder with anxious distress, in partial remission. He was also assessed as having a substance abuse disorder in relation to alcohol, which was also in remission given his detention in a controlled environment.
The sentencing judge was provided with a pre-sentence report, together with psychological and psychiatric reports. He noted the appellant told the report writers that he had been dependent upon alcohol for many years and that he had misused prescription medication. According to the appellant, he had stopped abusing substances, but began again after the death of his partner and in the months prior to his arrest. The psychiatrist commented that the appellant tended to resort to drug and alcohol use as a means of managing distress.
The sentencing judge also dealt with the question of why the appellant had sexually offended against so many children. According to the appellant, for many years there was no real sexual intimacy between him and his wife. This, coupled with the appellant's high libido, led to him watching adult pornography in excess. In turn, the appellant became intrigued by CEM, becoming aroused by images of girls as young as three and five.
The appellant described sitting alone, watching CEM and pornography, feeling bored and lonely. As time went on, it became more and more difficult to feed his sexual interest and to source CEM to view. This eventually led to him acting on his deviant desires.
When asked why he had installed cameras around his home, the appellant told the psychologist that he believed his former wife was having extramarital affairs, and that he wished to obtain evidence. The sentencing judge did not accept the appellant's explanation, noting that the images captured by the cameras make it very clear that he was deliberately seeking to obtain images of children.
The appellant was assessed with a primary diagnosis of a paedophilic disorder.
After the initial sentencing hearing in which the prosecutor had read the facts of the offending, the appellant wrote a letter to the court. In that letter, the appellant said that without the 'fog' of drugs and alcohol, he had come to realise how selfish he had been and that he had breached the trust placed in him. The sentencing judge did not accept what the appellant had written, nor that he accepted responsibility for what he had done. He also found that the materials before the court fell well short of justifying a finding that the appellant was genuinely remorseful for what he had done.

Sentencing remarks

The sentencing judge delivered lengthy and detailed sentencing remarks. He accepted that the offences had been committed by the appellant in the circumstances as outlined by the prosecutor, noting that those facts had been admitted by the appellant through his counsel. He also referred to the appellant's personal circumstances, summarised earlier in these reasons. The appellant does not challenge any of those factual findings in this appeal.
In relation to mitigating factors, the sentencing judge concluded that the only mitigating factor available to the appellant was the fact that he had pleaded guilty. He accepted that the appellant had entered pleas of guilty at the first reasonable opportunity and exercised his discretion in accordance with s 9AA of the Sentencing Act 1995 (WA) to reduce the head sentences imposed for each offence by 25%.
The sentencing judge referred to the various factors generally relevant to sentencing offences involving child sexual abuse, including the need to protect the community from the risk that the appellant will commit further similar offences and the need for personal and general deterrence.
Immediately before imposing sentence, his Honour indicated that, as a 'general approach', he had imposed 'a slightly higher sentence for the same conduct where it involves one of your own children as opposed to another child.'[41] He explained that this was because those offences involved a breach of trust. However, he went on to explain that it was necessary for him to assess whether sentences should be made concurrent or cumulative, and to consider the issue of totality. In that context, the sentencing judge referred to four factors he said required a 'very significant measure of accumulation in the sentences'.[42]
[41] Transcript 30 November 2022, 177.
[42] Transcript 30 November 2022, 178.
The four factors were, firstly, on many occasions one episode of offending against a particular victim involved multiple offences; secondly, the offending against many of the children involved multiple offences and occurred on multiple occasions; thirdly, the 'sheer magnitude' of the offending; fourthly, the appellant's possession of a significant quantity of CEM on so many devices.
The sentencing judge then said that there was one factor that tempered the degree of accumulation, namely, the appellant's pleas of guilty at the earliest reasonable opportunity. He noted that this had spared the families and those involved in the investigation and prosecution process the trauma that would necessarily be involved in a trial. He also referred to the wider public interest of providing an incentive to accused persons in other cases to enter pleas of guilty at the earliest reasonable opportunity.
The sentencing judge then said the following:
Taking your child abuse and child exploitation offending together as a whole, your offending is one of the worst cases of this kind to have come before the courts in Western Australia. I am conscious that no sentence I can impose this morning can restore the childhood innocence you just stole from these 22 victims.
In my view, a total effective sentence of 25 years is a just and appropriate measure of the total criminality involved in all of your offending.
The appropriate way to structure a sentence of 25 years is to accumulate one count of offending against each of your victims. So constructed, it makes it clear that your offending has impacted and will continue to impact the lives of 22 individual children and their families. I will set out how I will achieve this at the conclusion of my remarks.
I'm readily satisfied that a total effective sentence of this lengths bears a proper relationship to the overall criminality involved in all of your offending, viewed in their entirety. Having regard to all relevant circumstances and facts, including those referable to you personally, all relevant sentencing factors and total effective sentences in comparable cases.
I've also considered whether a sentence of this length would be crushing in the sense of destroying any reasonable expectation of a useful life after release. You're currently 47 and will be 71 on the conclusion of your term.
At the moment, you're not old enough for your age to give rise to humanitarian considerations relating to advanced age. I do not consider that the total effective sentence that I'm going to impose is crushing. In any event, the length of the sentence is appropriate and necessary, given the seriousness of your offending.[43]
[43] Transcript 30 November 2022, 181 - 182.
His Honour indicated that he would make an order that the appellant be eligible for parole, notwithstanding the State's opposition to such an order being made, before formally imposing the individual sentences for each of the 419 counts by reference to a sentencing table in which cumulative sentences were indicated by a red font.[44]
[44] Transcript 30 November 2022, 183 and following, and the table beginning at White Appeal Book 360.

Grounds of appeal

The grounds of appeal relied on by the appellant are as follows:
1.His Honour the Sentencing Judge erred in imposing a total effective sentence that was manifestly excessive in all the circumstances of the case.
2.His Honour the Sentencing Judge erred in imposing a sentence that was 'crushing' on the Appellant within the meaning of the second limb of the totality principle.

Legal principles

The legal principles applicable to appeals against sentence are well established, and were recently summarised by this court in JRE v The State of Western Australia as follows:[45]
(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 the sentencing discretion differently.
(2) In order to determine whether a sentence for an individual offence is manifestly excessive, 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 on the scale of seriousness of crimes of that type, and the appellant's personal circumstances.
(3) 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. What is important is the unifying principles that sentences imposed in comparable cases reveal and reflect. 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.
(4)The first limb of the totality principle requires that the total effective sentence imposed on an appellant who has committed multiple offences bears a proper relationship to the overall criminality involved in all of the offences, viewed in their entirety, having regard to all relevant facts and circumstances including those referable to the appellant personally, all relevant sentencing factors, and the total effective sentences imposed in comparable cases. The practical effect of the totality principle is ordinarily to arrive at an aggregate sentence that is less than that which would be arrived at by simply adding up all the terms appropriate for the individual offences. A rationale for the totality principle is that there is assumed rehabilitation and reduced demand for retribution after the initial sentence has been served.
(5)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 may be softened by an order that it be served concurrently with sentences imposed in relation to the other counts. A relatively light sentence 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.
[45] JRE v The State of Western Australia [2023] WASCA 100 [49].
The general principles applicable to sentencing persons convicted of committing sexual offences against young children are also well known. In OTR v The State of Western Australia [No 2],[46] those principles were summarised as follows:
[46] OTR v The State of Western Australia [No 2] [2022] WASCA 123 [55] - [57].
The authorities establish the following propositions in relation to sentencing for sexual offending against children:
1.There is no tariff for sexual offences against children. That is due to the great variation that can occur in the circumstances of the offending and the offenders themselves.
2.The primary sentencing considerations for sexual offending against children are appropriate punishment of the offender and general and personal deterrence - these considerations being informed by the need to protect vulnerable children.
3.Matters personal to an offender will ordinarily carry less weight.
4.In particular, the circumstance that an offender is otherwise of prior good character has little weight in cases of sexual offending against children. The offending is of such a nature that, until revealed, it generally will not impinge on others and will not affect their perception of the offender. Such offending can exist conformably with an otherwise apparent good character.
It was observed in 2012 that, in recent years, there had been a firming up of sentences imposed for sexual offences against children - particularly in cases involving intra-familial sexual abuse.
Some cumulation of sentences is to be expected to reflect the fact that an offender's sexual offending against children involves multiple victims. Also, some cumulation of individual sentences is to be expected where there is repetitive and prolonged sexual offending against an individual child. This reflects the increased likelihood of significant and enduring harm that comes with such repetitive and prolonged sexual abuse, as well as to reflect the fact that the offender has not simply given way to impulse on an occasion. (citations omitted)

In RGT the offender was sentenced to a total of 16 years imprisonment for 29 counts of sexual offending against his 2-year-old daughter, his very young de facto son, and a 13-year-old girl. The offender committed various acts of oral and vaginal penetration, some of which he recorded using a mobile phone. The appellant conceded in written submissions that it is difficult to argue that RGT is a useful comparator, and we agree. Given that the appellant committed over 14 times as many offences than were committed by the offender in RGT, that case cannot be described as even broadly comparable.
Finally, reference was made to Lewsam. In that case, the offender pleaded guilty to 125 offences, mostly comprising sexual offences against 75 children. After a successful appeal he was sentenced to a total of 12 years imprisonment. The offending mainly involved the appellant taking video recordings up the skirts of very young girls while in the toy sections of Kmart stores. The offender also indecently dealt with 19 children, mostly by rubbing his finger on their underpants in the area of their vagina. In four cases, he digitally penetrated the victim's vagina, and one of the victims was made to touch the appellant's penis after he sucked her tongue.
Although there were a significantly greater number of victims in Lewsam, unlike this case there were relatively few occasions on which the offender made physical contact with a child, and there were fewer offences overall. Further, the court expressly concluded in Lewsam that the nature of the individual offences was towards the lower end of the scale of seriousness for that type of offending. The same conclusion could not be reached in relation to the appellant's conduct. As we have observed, the appellant committed offences against each of his own children, as well as a substantial number of other very young and vulnerable children. That offending included a very large number of offences involving repeated and systematic sexual abuse of his youngest daughter. Further, the offending involved serious breaches of trust, and the appellant was also found in possession of an enormous amount of CEM.
As can be seen, none of the cases to which we were referred could be described as truly comparable to the facts and circumstances of this case, and they are of limited assistance in determining whether the total effective sentence was unreasonable or plainly unjust.
In our view, it is not manifest that the total effective sentence of 25 years did not bear a proper relationship to the overall criminality involved in all the appellant's offences, having regard to all the relevant facts and circumstances. The objective seriousness of the appellant's overall offending is at the very highest level, and there was a very clear need for sentences to be imposed that satisfied the obvious requirement for both general and specific deterrence, and to ensure the protection of vulnerable children. The only mitigating factor was the appellant's plea of guilty, in respect of which the sentencing judge allowed a 25% reduction on the head sentence of each individual sentence that he would have imposed.
This court has recognised the importance in a plea of guilty to child abuse offences being reflected in the total effective sentence as well as the individual sentences. In LYN v The State of Western Australia, the court observed:[61]
It was important that the mitigating effect of the pleas of guilty be reflected, not only in the individual sentences, but in the total effective sentence. That is particularly so in a case involving sexual offending against child complainants. The process of giving evidence of such offences is often re-traumatising and damaging for the victims. Unless the benefits to the victims and the State resulting from pleas of guilty are properly reflected in the total effective sentence, there will be little incentive for an offender to plead guilty. The absence of such an incentive will increase the number of victims who are exposed to the risk of further psychological harm through the requirement for them to participate in the trial process. This court has previously recognised the appropriateness of a substantial discount for a plea of guilty in cases of sexual offending against children. (footnotes omitted)
[61] LYN v The State of Western Australia [2019] WASCA 45 [51].
In the present case, the child complainants themselves would not have had to give evidence due to the appellant's recording of the offences. The existence of those recordings meant that the prosecution case was very strong, at least in relation to the vast majority of counts on the indictment. Nevertheless, the appellant's pleas of guilty carried very significant benefits for the community. The parents of the child complainants were spared the ordeal of giving evidence. The State was saved the considerable expense of a trial that would have been very long due to the number of videos which would need to be shown. The requirement for a jury to experience the trauma of having to watch highly distressing video evidence was avoided.
It was, therefore, important that the total effective sentence, as well as the individual sentences, be reduced to give full mitigating weight to the appellant's pleas of guilty. However, we are satisfied that, if the appellant had not had the mitigating benefit of his early pleas of guilty, then the gravity of his overall offending would have demanded the imposition of a significantly longer term of imprisonment than 25 years.
The total effective sentence had to reflect the fact that the appellant committed a considerable number of offences against a total of 22 children. Many of the offences were not at the high end of the scale of seriousness when viewed in isolation. However, when taken as a whole, they establish that the appellant persistently and frequently acted on an entrenched sexual interest in very young and vulnerable children, and in so doing breached the trust reposed in him as a father, a family member, and a friend.
Additionally, substantial cumulation was necessary to reflect the repetitive and prolonged sexual offending against the appellant's youngest daughter, which occurred on 153 separate occasions. In that regard it is important to appreciate that the appellant committed almost four times as many offences against his youngest daughter alone than the total number of offences in SAL.
Finally, a further degree of cumulation was called for in order to adequately reflect the extremely serious nature of the offences concerning the appellant's possession of child exploitation material and give some effect to the principles applicable in sentencing for such offences.
Although the total effective sentence of 25 years imprisonment might be described as severe, particularly as the appellant was afforded a discount of 25% on each of the individual sentences imposed and there was a need for those discounts to be meaningfully reflected in the overall sentence, we are not persuaded that the total effective sentence is unreasonable or plainly unjust. The sentencing judge did not impose a sentence that was manifestly excessive in all the circumstances of the case.
Although we would grant leave to appeal on ground 1, the ground is not established.

Ground 2 - the second limb of the totality principle

By this ground the appellant contends that the sentencing judge erred by imposing a total sentence that was 'crushing', relying on the 'second limb' of the totality principle. In UGN v The State of Western Australia,[62] the second limb of the totality principle was described in this way:
The second limb [of the totality principle] is that the court should not impose a 'crushing' sentence. The word 'crushing' in this context connotes the destruction of any reasonable expectation of a useful life after release. Advanced age is a relevant consideration in determining whether an aggregate sentence is 'crushing'. However, whether and, if so, to what extent, leniency should be given to an offender by reason of his or her advanced age depends on all the facts and circumstances of the particular case. For example, offences may be so serious that humanitarian considerations relating to advanced age cannot be accommodated. An aggregate sentence may be inappropriately long under the first limb even if it cannot be described as crushing.
[62] UGN v The State of Western Australia [2021] WASCA 10 [39].
These principles were largely drawn from the judgment of McLure JA in Roffey,[63] which has been regularly referred to due to its convenient summary of both limbs of the totality principle.
[63] Roffey [24] - [26]
In her description of the second limb of the totality principle, McLure JA referred to Jarvis v The Queen,[64] a decision cited on countless occasions since it was decided almost 30 years ago. In order to properly understand the role that the 'second limb' might play in the application of that principle, it is informative to have regard to what was actually said about that issue in Jarvis.
[64] Jarvis v The Queen(1993) 20 WAR 201.
The appellant in Jarvis was serving a term of imprisonment for several sexual offences committed against a child. While he was serving those sentences, the appellant was sentenced in relation to two further offences of a similar nature committed against another child. In an appeal against the latter sentence, the appellant contended that the sentence infringed the totality principle, arguing that it was a 'crushing result'.
In the course of a detailed discussion about the totality principle, Ipp J made the following observations about the 'second limb' of that principle:
The crushing effect of a term of imprisonment is merely one of the mitigating factors that is to be taken into account when determining whether a particular term of imprisonment is proportionate to the criminality evinced.
While the subjective effect of a cumulative sentence upon a particular individual is plainly relevant, it cannot be regarded as of paramount importance. The difficulty expressed in Vaitos (at 301) by O'Bryan J with the concept that a richly deserved sentence should be reduced because the offender may feel crushed by it aptly illustrate its limitations as a mitigatory force.
The overriding principle is accordingly that the aggregate sentence (even when punishment is being imposed for multiple offences) should fairly and justly reflect the total criminality of the offender's conduct: see Veen v The Queen (No 2) (1988) 164 CLR 465; Evangelista v The Queen; R v Glenister [1980] 2 NSWLR 597 at 612; Lade v Mamarika (1986) 83 FLR 312.[65] (emphasis added)
[65] Jarvis (206 - 207).
To a similar effect, Murray J said:
It was Wickham J in Thomson v The Queen (unreported, Court of Criminal Appeal, WA, 19 March 1973) who first expressed the totality principle in the phrase 'enough is enough' which seems to me to succinctly express the final result to be achieved in terms of proportionality of the aggregate penalty to the total criminality to which it is to be applied. In my opinion there is no other or additional content to the principle, and when, as it is sometimes put, it is expressed in terms that what is to be avoided is the achievement of 'a crushing result', that is simply to refer broadly to one test by which it may be considered whether the aim of proportionality has been achieved or whether undue severity has been employed. What is to be considered is the impact of the total term having regard to the various ways in which it may be thought to have become unduly punitive and positively harmful to the achievement of the proper aims of the imposition of sentence.
That is not I think, a consideration to be applied entirely subjectively, having regard to the particular position and circumstances of the offender before the court. Rather, although the correlation of the sentences and their application to the particular offender are to be regarded, it is the objective consideration of their potential total effect by which the court must ultimately be led to the conclusion that the totality principle has been properly served, or alternatively infringed: see Vaitos v The Queen (1981) 4 A Crim R 238.[66] (emphasis added)
[66] Jarvis (213 - 214).
The other member of the court in Jarvis, Anderson J, also discussed the totality principle. His Honour's reasons were principally concerned with the role the totality principle plays in circumstances in which an offender is sentenced, having already been sentenced for unconnected offending. His Honour did, however, say that:
A sentence may, of course, offend the totality principle without being 'crushing'. In assessing whether the aggregate of all the sentences is appropriate for the criminal conduct being punished (which is to apply the totality principle) the aggregate may be seen to be inappropriately long even although it is not so long as to bring about 'the destruction of any reasonable expectation of useful life after release' (the definition of 'crushing' given in Yates v The Queen [1985] VR 41 at 48) or so long that all desire for rehabilitation is likely to be extinguished.
In McLure JA's discussion of the principles of totality in Roffey, her Honour also referred to her judgment in Martino v The State of Western Australia,[67] where reference was made to Postiglione v The Queen,[68] Johnson v The Queen,[69] and Vlek v The Queen.[70]
[67] Martino v The State of Western Australia [2006] WASCA 78 [16].
[68] Postiglione v The Queen [1997] HCA 26; (1997) 189 CLR 295, 307 - 308 (McHugh J).
[69] Johnson v The Queen [2004] HCA 15; (2004) 78 ALJR 616 [22].
[70] Vlek v The Queen (Unreported, CCA WASC, Library No 990153C, 29 March 1999) 12 (Anderson J).
The passage in McHugh J's judgment in Postiglione to which her Honour referred is as follows:
The totality principle of sentencing requires a judge who is sentencing an offender for a number of offences to ensure that the aggregation of the sentences appropriate for each offence is a just and appropriate measure of the total criminality involved. In Kelly v The Queen, O'Loughlin J, sitting in the Full Court of the Federal Court of Australia, applied the following unreported remarks of King CJ in R v Rossi:
'There is a principle of sentencing known as the principle of totality, which enables a court to mitigate what strict justice would otherwise indicate, where the total effect of the sentences merited by the individual crimes becomes so crushing as to call for the merciful intervention of the court by way of reducing the total effect.'
The application of the totality principle therefore requires an evaluation of the overall criminality involved in all the offences with which the prisoner is charged. Where necessary, the Court must adjust the prima facie length of the sentences downward in order to achieve an appropriate relativity between the totality of the criminality and the totality of the sentences. (emphasis added and citations omitted)
As can be seen, the passage taken from the remarks of King CJ in Rossi[71] appears to suggest that the totality principle is concerned only with the question of whether the total effect of a sentence is crushing. However, in the paragraph in Johnson that was cited by McLure JA in Martino, Gummow, Callinan and Heydon JJ referred to the above passage from Postiglione and said:[72]
We would with respect doubt that it is only in a case of an otherwise crushing burden of an aggregation of sentences that the totality principle may be applied. We did not take the respondent here to be submitting that the appellant should serve the aggregate of the two sentences imposed upon him.
[71] R v Rossi (Unreported, CCA SA, 20 April 1988).
[72] Johnson [22].
In any event, in the above passage from Postiglione, McHugh J describes the totality principle by reference only to 'an evaluation of the overall criminality involved in all the offences with which the prisoner is charged'.
Finally, McLure JA referred to the judgment of Anderson J in Vlek, but only as authority for the proposition that in this context the word 'crushing' connotes the destruction of any reasonable expectation of useful life after release.
When considered in light of what was said in the cases referred to by McLure JA in Roffey, as well as in Martino, it might be argued that that the second limb of the totality principle should not be regarded as a standalone principle. This would mean that a crushing sentence may not, on that basis alone, infringe the totality principle or otherwise establish error. It may be that whether a sentence can properly be regarded as being 'crushing' is only one of the factors to be considered in deciding whether a particular term of imprisonment is proportionate to the overall criminality of the relevant offending behaviour.[73]
[73] Similar observations were recently made in the New South Wales Court of Criminal Appeal in Davidson v R [2022] NSWCCA 153 [41] (Brereton JA), [303] - [319] (N Adams J), and in the Victorian Court of Appeal in Mohamed v The Queen [2022] VSCA 136 [76]. See also Fryberg J's detailed review of the relevant law in R v Schmidt [2011] QCA 133; (2011) 210 A Crim R 29 [17] - [41].
Very many decisions of this court identify the second limb of the totality principle as a stand-alone basis for reducing a sentence that does not infringe the first limb of the totality principle. However, we have not located any decision of this court or its predecessor which reduced a total effective sentence on the basis that it was crushing even though it did not infringe the first limb of the totality principle. That is not surprising in a context where matters such as the mitigating effect of the age and ill-health of the offender are relevant to the application of the first limb of the totality principle, and where the second limb of the totality principle recognises that there will be cases calling for the imposition of a crushing sentence. The scarcity of cases where the independent application of the second limb of the totality principle made a difference to the outcome raises a question as to the utility of expressing the second limb of the totality principle as an independent basis for reducing an otherwise appropriate total effective sentence. It may also reduce the precedential value of at least many of the repeated statements as to the second limb of the totality principle which were not an essential part of the court's decision.
Notwithstanding these observations, we would only depart from the very well-established approach to the totality principle in this court if satisfied that the approach was plainly wrong. Such a change in this court's established approach would only be appropriate after careful consideration of a case where the matter was fully argued, and resolution of the question was necessary for the court's decision. Ordinarily, such an argument advocating a change of approach would proceed before an enlarged coram of five members of this court.
Given the court did not have the benefit of any submissions from the parties in relation to this issue, and because it is not necessary to finally determine it to decide this appeal, it is not appropriate to express any final view about the matter. We will proceed, consistently with the long-standing practice of this court, on the basis that it is open to appeal against a total effective sentence on a ground that the sentencing judge erred in imposing a sentence that was crushing.
It was accepted on behalf of the appellant that the sentencing judge expressly considered whether the overall sentence was of such a length as to be crushing. However, it was submitted that his Honour 'may … have conflated the two concepts of "advanced age" as a mitigating factor and the second limb of the [t]otality [p]rinciple'.[74] This submission amounts to a contention that the sentencing judge made an express error.
[74] Appellant's Submissions, par 46, White Appeal Book 17.

It was also submitted that the sentencing judge erred in concluding that the aggregate sentence was not crushing because:
(a)the appellant will go from a relatively physically healthy 47‑year-old man at the time of sentencing to a 71-year-old man at the time of his release, who would be eligible for the age pension;
(b)the length of sentence and likely age at which he would be released gives little encouragement to the appellant to demonstrate reform or undertake rehabilitation; and
(c)the appellant would be highly unlikely to have anything in the way of other employment or income options (let alone recreation or family life of any kind) at the time of his release.
In oral submissions, counsel confirmed that the argument on this ground was limited to a proposition that the appellant would be 71 years of age after serving the substantial term of imprisonment imposed on him.
In both written and oral submissions, counsel for the appellant submitted that the sentencing judge erred in concluding that the aggregate sentence was not crushing, and that he should have found that the appellant would have no reasonable expectation of a useful life after being released. On that basis, it was submitted that the sentencing judge erroneously failed to properly moderate the sentence.
The respondent submitted that the appellant's contention on this point amounted to a mere assertion that the sentence will result in a destroyed expectation of useful life upon release. The respondent also submitted that the second limb is not an absolute principle, and that there are cases where an appellant, by his or her criminal acts, forfeits the right to any hope or expectation of being released from custody in circumstances in which they may still expect to enjoy a useful life.
It is appropriate to deal first with the submission that the sentencing judge fell into error by conflating the concepts of advanced age as a mitigating factor and the second limb of the totality principle. This submission was concerned with the following part of the sentencing remarks:
At the moment, you're not old enough for your age to give rise to humanitarian considerations relating to advanced age. I do not consider that the total effective sentence that I'm going to impose is crushing.[75]
[75] White Appel Book 334.
In our view there is nothing in this passage that reveals that the sentencing judge erroneously conflated any relevant concepts or principles. On the contrary, the passage relied on by the appellant is entirely consistent with this court's description of the second limb of the totality principle appearing in the passage from UGN referred to earlier in these reasons. Given that UGN was the only case that the State prosecutor cited in her written sentencing submissions as an authority concerning the totality principle, it seems very likely that the sentencing judge's remarks reflect an attempt to paraphrase what was said in UGN.
In any event, as this court recently said in The State of Western Australia v BNY:[76]
Advanced age is a relevant consideration in determining whether a sentence will be crushing. The rationale is that each year of a sentence represents a substantial proportion of the period of life which is left to an offender of advanced age. (citations omitted)
[76] The State of Western Australia v BNY [2023] WASCA 84 [105].
We also do not accept the appellant's more general submission that the sentencing judge erred in finding that the aggregate sentence was not crushing.
It was well open to the sentencing judge to find, as he did, that the total effective sentence was not crushing. The appellant will be 71 years of age at the conclusion of his sentence. If released upon becoming eligible for parole, he will be 69 years of age. There was no evidence before the sentencing judge that suggested, and there is no basis on which it could reasonably be concluded, that the appellant was in ill‑health or that there was any other reason to think that the aggregate sentence would deny the appellant a reasonable expectation of a useful life after being released from custody.
In our opinion, the total effective sentence was not crushing. It follows that the second limb of the totality principle was not infringed.
Leave to appeal on ground 2 should be refused.

Conclusion and orders

As the appellant has failed to make out either ground of appeal, the appeal must be dismissed.
We would make the following orders:
1.The appellant is granted leave to appeal on ground 1.
2.Leave to appeal is refused on ground 2.
3.The appeal is dismissed.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
RH
Research Associate to the Hon Justice Vandongen
1 SEPTEMBER 2023