KWJW v The State of Western Australia

[2010] WASCA 29

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT :   THE COURT OF APPEAL (WA)

CITATION:   KWJW -v- THE STATE OF WESTERN AUSTRALIA [2010] WASCA 29

CORAM:   OWEN JA

BUSS JA
NEWNES JA

HEARD:   1 FEBRUARY 2010

DELIVERED          :   25 FEBRUARY 2010

FILE NO/S:   CACR 103 of 2009

BETWEEN:   KWJW

Appellant

AND

THE STATE OF WESTERN AUSTRALIA
Respondent

ON APPEAL FROM:

Jurisdiction              :  DISTRICT COURT OF WESTERN AUSTRALIA

Coram  :SWEENEY DCJ

File No  :IND 1176 of 2006

Catchwords:

Criminal law and procedure - Sentencing - Multiple counts of indecent dealing, procuring indecent dealing and sexual penetration by 39­year­old man against 13 to 14­year­old boy - Some offences committed while child under appellant's care and supervision - Whether sentence of 7 years' imprisonment infringed totality principle

Legislation:

Criminal Procedure Rules (2005) (WA), r 49(1)
Sentence Administration Act 2003 (WA), s 6, s 7
Sentencing Act 1995 (WA), s 37, s 88(2), s 88(3), s 88(4)

Result:

Extension of time refused

Category:    D

Representation:

Counsel:

Appellant:     Mr M R Gunning

Respondent:     Mr D Dempster

Solicitors:

Appellant:     Gunning Barristers & Solicitors

Respondent:     Director of Public Prosecutions (WA)

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

L v The State of Western Australia [2007] WASCA 186

Parker v The State of Western Australia [2008] WASCA 46

RJB v The State of Western Australia [2009] WASCA 49

Schriever v The State of Western Australia [2008] WASCA 133

VIM v The State of Western Australia [2005] WASCA 233; (2005) 31 WAR 1

1OWEN JA:  In December 2006 the appellant pleaded guilty in the District Court to a number of offences of a sexual nature against a 13 to 14‑year‑old boy and was sentenced to a total term of 7 years' imprisonment.  This is an appeal against that sentence.

2The appeal notice was filed approximately two and one half years out of time.  The application for an extension of time and the application for leave to appeal were referred through for hearing along with the substantive appeal. 

Background

3Between the middle of 2005 and 2006, the complainant (the child) was 13 to 14 years of age.  During this time, the appellant was 39 to 40 years of age.  Over several years preceding the offending behaviour, the appellant's family and the child's family socialised frequently.  The appellant was a close childhood friend to the child's father and built a trusting relationship with the child.  In an interview with police the child referred to the appellant as his best friend and (apart from his parents) the only person to whom he could speak (presumably in the sense of the only person in whom he could confide).  The appellant would often take the child fishing, camping, and motorbike riding and the child would often stay overnight at the appellant's home.  On many occasions the appellant favoured the child with gifts and money.

4The offending behaviour occurred over a 10 month period.  While 11 counts were particularised in the indictment the defence did not dispute that these counts were part of an ongoing course of conduct and that there were many more instances of offences of a like nature.  The appellant agreed when it was put to him by police that there had been 'very frequent sexual contact between them', although he said it had not occurred every time they were together.

5The offences the subject of the first and second counts on the indictment occurred between 1 June 2005 and 31 August 2005.  On this occasion, the child was staying overnight at the appellant's home.  While watching television on a sofa bed in the lounge room, the appellant began talking to the child in a sexual manner and eventually masturbated to the point of ejaculation in front of him.  Count 2 involved the appellant encouraging the child to masturbate in front of him.  During these acts, there was mutual touching between them. 

6The conduct charged in counts 3 and 4 (identical to that the subject of counts 1 and 2) occurred the day following the occurrences of counts 1 and 2.  Again, the appellant masturbated in front of the child and encouraged him to do the same.  This also involved mutual touching.

7The sexual offences continued in the following weeks.  Approximately six weeks after the initial incidents, the complainant sexually penetrated the child by placing the child's penis in his mouth (count 5) and placing his own penis in the child's mouth (count 6).  The appellant later masturbated in front of the child and ejaculated in front of him.

8Counts 7 and 8 occurred in January 2006 when the appellant and the child went camping alone together.  The appellant and the child slept in individual swags outside the tent. The appellant again masturbated in front of the child (count 7).  The appellant encouraged the child to masturbate in front of him and there was mutual touching between them (count 8).

9Some time later (approximately six weeks prior to the appellant's arrest), the child stayed overnight at the appellant's house.  The following morning, the child was showering when the appellant entered the shower with him.  The appellant had an erect penis.  During the shower the appellant slapped the child on the buttocks with his erect penis (count 9).  The child ran from the shower, believing that the appellant was attempting to penetrate him anally. 

10On a date between the end of January 2006 to the middle of April 2006, the appellant sexually penetrated the child by placing his penis into, and ejaculating into, the child's mouth (count 10).  On the same occasion, the appellant sexually penetrated the child by placing the child's penis into his own mouth (count 11).

11The child kept these incidents secret during this period.  As a result of the ongoing abuse, the child suffered severe mood swings and became aggressive.  Eventually he told his mother about the appellant's conduct.  After contacting police, the child was interviewed and made certain disclosures, including that the acts had occurred on over 100 occasions.

12On 29 May 2006, the child conducted a pretext call to the appellant, confronting him with the allegations.  This phone call was recorded.  The appellant was later arrested at his home.  During a video recorded interview, the appellant made full admissions to the offences and has been in custody since 29 May 2006.  He was charged on indictment with 11 offences, all of which allege they were committed against a child over the age of 13 but under the age of 16.  The offences are: three counts of indecently dealing with a child, two counts of indecently procuring a child to deal with the offender, two counts of indecently dealing with a child under supervision, and four counts of sexual penetration of a child.  He pleaded guilty on a fast track system to all charges and was sentenced to a total term of imprisonment of 7 years.

13Details of the offences charged in the indictment, including a short description to assist in identifying them with the narrative and setting out the sentence imposed in respect of each of them are contained in the schedule to these reasons.

Sentencing remarks and the sentence

14The sentencing judge made lengthy sentencing remarks.  Her Honour noted that the appellant had cooperated with police, made admissions and pleaded guilty at the first opportunity.  The facts of the offences were incorporated by reference to the outline given by the prosecutor and not disputed by the defence.  The sentencing judge then made the following observations.

15The appellant and the child's father were old friends and their relationship was renewed and became closer when the child developed learning problems at school and the appellant's wife began tutoring him.  The child did not like school very much but enjoyed outdoor activities which the appellant could share.  Over a period of about a year the appellant abused his friendship with the child to make sexual advances towards him in the manner outlined.  The appellant bought the child gifts and gave him money.  Her Honour found that the appellant encouraged the child to keep the matter secret between them. 

16Her Honour remarked that it was clear from the child's statement, visual recording and victim impact statement that he was a very angry boy who was trying to behave in a 'manly, tough fashion'. The recital of the facts of the offences missed the real damage done to him.  Her Honour referred specifically to the child's statements that he took the appellant to be his best friend and the person to whom he would speak if his parents were not available.  This, her Honour said, illustrated the gross breach of trust and manipulation of their relationship by the appellant.  He was trusted and looked up to by the child; the child's parents trusted him to the extent that they let the child go camping with the appellant alone.  During that time the appellant was in effect seducing the young boy, introducing him to sexual behaviour and encouraging mutual sexual behaviour, using the child for his own gratification. 

17The child was damaged by what had happened to him.  His victim impact statement and interview with police indicated he was an intelligent person but was likely to feel the effects of the offences for his entire life.  The appellant's plea of guilty had spared the child the experience of giving evidence.  Her Honour remarked that this was very significant to the child's future and there was no more convincing proof of the appellant's remorse than that plea.  It was the best thing the appellant could have done to help the child and demonstrated genuine remorse.  She allowed a 30% discount for the fast track plea.

18The sentencing judge noted the appellant's explanation that he had a problem with alcohol at the time of his offending but he was confused and sickened by his conduct and could not explain how the offences could have occurred.

19The appellant's pre-sentence and psychiatric assessment indicated deep unhappiness and an unhappy childhood where he witnessed domestic violence at home and had been a victim of bullying at school and at work.  He suffered depression and had done so for years.  Although the appellant's sexual abuse of the child might have begun as genuine affection for the boy he had utterly betrayed the child and his friendship.  The first offence might have been impulsive but thereafter it became a sustained course of conduct.  In particular the camping trip was, in her Honour's view, predatory. 

20Her Honour noted that the priority must be to protect children and it was important to send a message to offenders that they are to expect lengthy terms of imprisonment.  In her Honour's view, only a term of immediate imprisonment was appropriate.

21In relation to counts 1 and 2 the sentencing judge started with a term of 3 years for each count, which was reduced for the appellant's early plea of guilty and previous good character and the deduction required by the then‑operative transitional provisions (which she applied to each sentence), to 12 months for each count.  She ordered that the terms for counts 1 and 2 be served concurrently.

22For counts 3 and 4 her Honour imposed terms of 12 months each, to be served concurrently with each other and concurrently with count 1. 

23The sentences for counts 5 and 6 commenced with a starting point of 4 years in respect of each count reduced to 22 months.  The term for count 5 was to be served concurrently with count 6 but cumulative with count 1.

24Counts 7 and 8 had the additional feature of the child being under the appellant's care and supervision.  The starting point for each count was 4 years reduced to 22 months, to be served concurrently with each other and with the term in count 1. 

25The sentencing judge characterised count 9 as involving a predatory act and as amounting to grooming the child.  As such it was very serious and moved the relationship to a more intimate level.  Her Honour decided that this offence deserved a starting point of 4 years reduced to 22 months, to be served cumulatively upon the other sentences imposed.

26Count 10 was an escalation of the relationship to a further level of intimacy.  The child was 14 at the time and the act of the appellant putting his penis in the child's mouth, having him perform oral sex on him and ejaculating into the child's mouth deserved a starting point of 5 years reduced to 28 months, to be served cumulatively upon the other sentences imposed.

27Count 11 occurred on the same occasion.  The appellant performed oral sex on the complainant.  For this offence her Honour imposed a term (after the discounts) of 22 months, to be served concurrently with count 10.

28The total term imposed was of 7 years' imprisonment. The appellant was made eligible for parole and the sentence was initially expressed to be backdated to 8 November 2006. This was subsequently corrected to 29 May 2006, the date the appellant was first in custody. A Misconduct Restraining Order was made under s 63 of the Restraining Orders Act 1997 (WA) restraining the appellant from contacting the child, directly or indirectly, for the appellant's lifetime.

29I should say in passing that there may be an error in the indictment as counts 10 and 11 appear to have been transposed.  However, nothing turns on it as the sentencing hearing (including the sentencing remarks) proceeded on the facts as outlined by the prosecutor and the defence did not demur from those facts.  The schedule to these reasons has been prepared on the basis of the facts as outlined and ignores the possible discrepancy.

30I should also say that on one view of s 88 of the Sentencing Act 1995 (WA), the total effective sentence may have been 7 years and 10 months (not 7 years). I say this because the sentencing judge expressly ordered that the 22 months concurrent terms for counts 7 and 8 be served concurrently with the 12 month term for count 1. However, the amended warrant of commitment dated 11 December 2006 refers to a total term of 7 years. Neither party raised the issue that I mentioned in this paragraph and the appeal was argued on the basis that the total term was 7 years. These reasons proceed on that basis.

Grounds of appeal

31There are two grounds of appeal.  In ground 1 the appellant contends that the various combinations of concurrency and accumulation adopted by her Honour has resulted in a total effective sentence (7 years) that infringes the totality principle.  Counsel for the appellant confirmed that ground 1 was directed at the first limb of the totality principle; namely that the aggregate sentence is disproportionate to the overall criminality of the appellant's conduct.  The appellant does not allege that the sentence is crushing in the relevant sense.

32In neither the grounds of appeal as drafted nor in the written submissions is there a challenge to the terms imposed for any of the individual counts except count 9.  In his oral submissions counsel submitted that counts 10 and 11 'shouldn't have carried 28 months'.  However, I think this comment was aimed at the effect of those sentences on the overall term.  It was based on the contention that the sentences on those counts should have been reduced because they contributed to an overall term that was simply too high, not because they were disproportionate to the criminality involved in the conduct there under consideration.

33The second ground focuses on the sentence imposed for count 9.  The appellant contends that in light of the factual circumstances and his antecedents (which are particularised) the sentence is manifestly excessive and outside the range of a sound discretionary sentence.

Ground 2 - the sentence for count 9

34It is convenient to deal with the discrete challenge to the sentence for count 9 before turning to the argument about totality.

35It is important to note that count 9 is a charge of indecent dealing.  The appellant was not charged with attempted sexual penetration, even though the child fled from the shower believing that the appellant was trying to penetrate him anally.  The appellant does not complain that he was sentenced for the wrong (and more serious) offence.  But he contends that the term of 22 months is nonetheless excessive. 

36The appellant acknowledges that his conduct was serious and that it constituted a gross breach of trust.  He also acknowledges the difficulty of identifying a 'tariff' for offences of this nature.  But he says that the essential facts (namely, the child stayed overnight at his home, he entered the shower while the child was showering, he slapped his erect penis on the complainant's bottom, and the child left the shower believing the appellant was attempting to penetrate him) do not warrant such a severe sentence.  This is particularly so in light of the appellant's personal circumstances, including his guilty plea, remorse, psychiatric condition and lack of prior relevant record.

37Counsel for the appellant acknowledged that an appeal must be against a sentence, not a starting point.  But to illustrate the proposition for which he contended he pointed to the starting point of 4 years as being well beyond the sentences customarily imposed for indecent dealing offences when there was an early guilty plea and the other mitigating factors listed. 

38Counsel for the appellant referred to three cases in support of the proposition that the sentence for count 9 was outside the range of a sound discretionary sentence: L v The State of Western Australia [2007] WASCA 186; Schriever v The State of Western Australia [2008] WASCA 133; and RJB v The State of Western Australia [2009] WASCA 49. Counsel also referred to VIM v The State of Western Australia [2005] WASCA 233; (2005) 31 WAR 1. With respect to counsel none of those cases has much (if anything) to say about sentences customarily imposed for an individual count of indecent dealing as part of a continuing course of offending against a young child.

39In my view the individual offence ought not to be divorced from its context.  Her Honour regarded the offence as being particularly grave because it involved an element of grooming.  This incident came towards the end of the period during which the offences occurred and, along with count 10, is indicative of an escalating level of severity.  I take that to involve an inference that the appellant may perhaps have been preparing the child for acts of penile anal penetration.  I think her Honour was right to look at count 9 in this way.  Taking that view of the circumstances, I do not think that the term of 22 months for count 9 is manifestly excessive.  Ground 2 has not been made out.

Ground 1 - totality

40The appellant's argument about totality can be summarised in this way.  The conduct the subject of counts 1 to 4 and counts 7 and 8 was virtually identical and involved what, for economy of description, can be called mutual masturbation.  Counts 1 and 2 and counts 3 and 4 were committed on successive days and a total sentence of 12 months was imposed.  Counts 7 and 8 were committed a few months later.  Despite the fact they were committed on a camping trip (and therefore technically while the child was under the appellant's care and supervision) they ought not to have been visited with a term of 22 months, albeit a term to be served concurrently with the sentence for count 1.  The appellant's complaint about the sentence for count 9 has already been canvassed in the discussion about ground 2.  He says the term of 22 months was simply too high.  Counts 5 and 6 and 10 and 11 were, once again, virtually identical and, again for economy of description, can be called mutual oral sex.  Having imposed a sentence of 22 months for counts 5 and 6, the appellant ought not to have received a cumulative effective sentence of 28 months for counts 10 and 11.  The result, the appellant argues, is a total term that is disproportionate to the criminality involved.

41Counsel for the appellant referred to the four authorities that I have already mentioned.  He pointed to differences between what the appellant did and the factual circumstances of those cases and submitted that they demonstrated that the total term of 7 years was excessive.

42In my view the appellant's sentence does not offend the first limb of the totality principle.  The sentencing judge made the sentences for counts 3 and 4 concurrent with those for counts 1 and 2 by (I think) applying the so called one transaction principle.  That, in my view, is a liberal interpretation of the principle and is generous to the appellant. 

43I do not accept the submission made by the appellant's counsel that the higher sentence for counts 7 and 8 is problematic because there is little difference between the child coming to the appellant's home and the child accompanying the appellant on a camping trip.  The legislature has expressly recognised that offences committed while a child is under the care and supervision of the offender are inherently more serious.  I think that is so in this case.  If a child visits the home of another there is, or may be, an element of care and trust on the home occupier.  But that level of care and trust is elevated when something like a camping trip is planned and executed.  The child is even more vulnerable to exploitation in those circumstances and the breach of trust is more acute.  In addition, the offences the subject of counts 7 and 8 represented a continuation (after some months) of repetitive, offending behaviour.  An extra 10 months is appropriate to recognise those additional and aggravating features. 

44I have already dealt with the sentence for count 9.  It is not correct, in my view, to characterise what happened in counts 10 and 11 as virtually identical to the conduct the subject of counts 5 and 6.  The appellant took his own gratification to a different level and I think her Honour was right to mark that fact by an additional term.  The offences were separated by some weeks or months and I do not believe the appellant can complain about the decision to make the sentence for count 10 cumulative on the other sentences.

45It has to be borne in mind that there were uncharged acts.  The appellant can only be sentenced for those crimes with which he has been charged.  But the presence of other (admitted) instances of sexual molestation of the child removes any argument that the counts on the indictment were impulsive or aberrant behaviour that was out of character for the appellant.  The offending behaviour went on for a long time (about 10 months).  It was escalating in its level of severity.  The appellant did not voluntarily desist from his conduct.  It came to an end because the child eventually told his mother what was happening and the police became involved.  The appellant was old enough to be the child's father.  The child looked up to the appellant and regarded him as a confidante and as his best friend.  The offences occurred at a time when the child was at a vulnerable age in terms of his transition from childhood to teenage years and then into young adulthood.  The impact of the appellant's behaviour on the child was demonstrably serious.

46On the other side of the ledger, there is little of a mitigating nature.  The appellant's plea of guilty and genuine remorse is significantly in his favour but that was appropriately recognised in the 30% discount that was applied to the sentences.

47I will assume (in the appellant's favour) that it would have been appropriate to order concurrent terms in respect of all offences occurring on the same day.  On that assumption, the terms for counts 1 and 2 would be concurrent.  So, too, would the sentences for each of counts 3 and 4, counts 5 and 6, counts 7 and 8 and counts 10 and 11.  Applying conventional sentencing principles (other than totality) it would then have been appropriate for the sentencing judge to have ordered accumulation of the terms for counts 1, 3, 5, 7, 9 and 10.  Had that occurred the total sentence would have been 9 years and 10 months.  Looked at in this way, the first limb of the totality principle has resulted in a reduction of the sentence by almost 3 years.  In my view the appellant cannot say that the resultant term of 7 years is disproportionate to the overall criminality of his conduct.

48I have looked again at the four authorities cited by counsel for the appellant.  Leaving to one side VIM, it is true that the total terms imposed in the other cases was less than that given to the appellant and in some of them there were multiple complainants.  But there are distinguishing features.  In both Schriever and L, for instance, there were voluntary disclosures that had a material impact on the sentences.  RJB involved four separate incidents (not six) resulting in eight counts (not 11) and it also had some element of voluntary disclosure.  The offender was also dealt with for additional (non‑sexual) offences.  A total term of 8 years (for the sexual offences) was not disturbed on appeal.  None of these cases assist the appellant.

49Ground 1 has not been made out.

Conclusion

50The notice of appeal was lodged about two and a half years out of time.  The explanation is that the appellant always desired to appeal and thought that proceedings had been instituted.  The fault lay with his legal representatives, not with the appellant.  That is hardly a satisfactory explanation for such an inordinate delay.  But the main difficulty the appellant faces is that he has not been able to demonstrate that there is a viable ground of appeal.  Accordingly, there will be no miscarriage of justice if an extension is not granted.

51I would refuse to grant an extension of time.  It follows that the appeal fails.

52BUSS JA:  I have read the proposed reasons for judgment of Owen JA, with whom Newnes JA proposes to concur.  I agree with Owen JA that the appellant's application for an extension of time should be refused and that in consequence the appeal should be dismissed.  Subject to the observations set out below, I also agree with his Honour's reasons. 

53Rule 49(1) of the Criminal Procedure Rules 2005 (WA) provides that the clerk of arraigns must issue a certificate, in the form of Form 13, of the final outcome of a charge before the court and the orders made as a result. Form 13, which is headed 'Certificate of final outcome of charge', makes provision, in a section headed 'Final outcome Part 2', for details of the sentence imposed.

54In the present case, the Form 13 was dated 11 December 2006, signed by the sentencing judge and the clerk of arraigns, and specified the

final outcome in relation to the sentences imposed on the appellant, relevantly, as follows:

Count 1	12 months' imprisonment.
Count 2	12 months' imprisonment.  Concurrent with Count 1.
Count 3	12 months' imprisonment.  Concurrent with Count 1.
Count 4	12 months' imprisonment.  Concurrent with Count 1.
Count 6	22 months' imprisonment.  Concurrent with Count 1.
Count 5	22 months' imprisonment.  Concurrent with Count 6.  Cumulative with [sic] Count 1.
Count 7	22 months' imprisonment.  Concurrent with Count 1.
Count 8	22 months' imprisonment.  Concurrent with Count 1.
Count 9	22 months' imprisonment.  Cumulative.
Count 10	28 months' imprisonment.  Cumulative.
Count 11	22 months' imprisonment.  Concurrent with Count 10.
TOTAL TERM:  84 months' imprisonment.  Backdated to commence 29 May 2006.  Eligible for parole.

55There is a logical inconsistency in the orders expressed in relation to the sentences of 22 months' imprisonment for each of counts 6 and 5.  The sentence for count 6 is said to be concurrent with count 1.  The sentence for count 5 is said to be 'concurrent with count 6' but 'cumulative with [sic] count 1'.  Logically, of course, if count 5 is concurrent with count 6 (which is concurrent with count 1), count 5 cannot also be cumulative on count 1.  It is apparent, however, from the 'Certificate of final outcome of charge', considered as a whole, that the sentencing judge intended that the net effective head sentence should be 7 years' imprisonment.

56The sentences and the orders for accumulation and concurrency, as stated in the 'Certificate of final outcome of charge' in relation to the appellant are reproduced, with the same logical inconsistency, in the amended warrant of commitment dated 11 December 2006 and signed by the clerk of arraigns.

57By contrast with, and differently from, the 'Certificate of final outcome of charge' and the amended warrant of commitment, the transcript of the sentencing judge's sentencing remarks states in relation to counts 5 and 6:

I order the term for count 5 to be served concurrently with count 6 but cumulative with [sic] the term to be served for count 1.  (ts 31, AB 60)

58It is apparent from this passage that her Honour intended that the sentences for counts 5 and 6 should be served concurrently with each other, but cumulatively on the sentence for count 1.  An order in these terms, taken together with her Honour's other orders in relation to accumulation and concurrency, results in a net effective head sentence of 7 years' imprisonment.

59Section 88 of the Sentencing Act 1995 (WA) provides, relevantly:

(2)An offender sentenced at the one time to one or more fixed terms is to serve those terms concurrently, unless the court makes an order under subsection (3).

(3)If at the time an offender is sentenced to a fixed term ‑ 

(a)the offender is serving or has yet to serve another fixed term imposed previously; or

(b)the offender is then also sentenced to serve another fixed term,

the sentencing court may order that ‑ 

(c)the fixed term is to be served cumulatively on the other fixed term; or

(d)the fixed term is to be served partly concurrently with the other fixed term.

(4)If under subsection (3)(d) a court orders that a term is to be served partly concurrently with another fixed term, the court must specify the period of the other fixed term that is to be served before the partly concurrent term is to begin, but that period must not extend beyond the earliest date on which the offender could be released (whether on parole or not) in relation to the other fixed term.

See also s 6 and s 7 of the Sentence Administration Act 2003 (WA).

60The effect of s 88(2), read with s 88(3) and s 88(4), is that an offender sentenced at the one time to, relevantly, several fixed terms (as in

the present case) is to serve those terms concurrently, unless the sentencing judge makes an order that one or more of the fixed terms be served cumulatively on, or partly concurrently with, another fixed term or other fixed terms.

61In the present case, neither counsel for the appellant nor counsel for the State raised with this court any difficulty as to the sentencing judge's orders in relation to accumulation and concurrency.  Both counsel proceeded on the assumption (which is, in my view, plainly correct) that her Honour intended that the appellant should serve a net effective head sentence of 7 years' imprisonment. 

62If any difficulty should arise in relation to the sentencing judge's orders for accumulation or concurrency or if either party considers that those orders require correction, then an application should be made to her Honour under s 37 of the Sentencing Act. See in relation to s 37 my observations in Parker v The State of Western Australia [2008] WASCA 46 [47] ‑ [53] (Wheeler & Miller JJA agreeing).

63NEWNES JA:  I agree with Owen JA.

THE SCHEDULE

CHARGES IN THE INDICTMENT

Count	Date	Offence	Description	Sentence	Concurrency/ Accumulation
1	31 May 2005 - 1 Sep 2005	Indecent dealing	At appellant's house. Appellant masturbating.	1 year
2	Same as count 1	Procuring the child to do an indecent act	At appellant's house. The child masturbating.	1 year	Concurrent with count 1.
3	1 Jun 2005 - 2 Sep 2005	Indecent dealing	At appellant's house. Appellant masturbating.	1 year	Concurrent with count 4 (and with count 1).
4	Same as count 3	Procuring the child to do an indecent act	At appellant's house. The child masturbating.	1 year	Concurrent with count 3 (and with count 1).
5	14 Jun 2005 - 1 Oct 2005	Sexual penetration	At appellant's house. Appellant performed oral sex on the child.	22 months	Concurrent with count 6. Cumulative on Count 1.
6	Same as count 5	Sexual penetration	At appellant's house. Appellant had the child perform oral sex on him.	22 months	Concurrent with count 5.
7	14 Jan 2006 - 6 Feb 2006	Indecent dealing of child under supervision.	Camping. Appellant masturbating.	22 months	Concurrent with count 1.
8	Same as count 7	Procuring the child to do an indecent act and child under supervision.	Camping. The child masturbating.	22 months	Concurrent with count 7 (and with count 1).

9	15 Jan 2006 - 30 Apr 2006	Indecent dealing	At appellant's house. Slapping the child's buttock with his penis.	22 months	Cumulative on all other terms.
10	31 Mar 2006 - 1 May 2006	Sexual penetration	At appellant's house. Appellant had child perform oral sex on him.	28 months	Cumulative on all other terms.
11	Same as count 10	Sexual penetration	At appellant's house. Appellant performed oral sex on the child.	22 months	Concurrent with count 10.