MHS v The State of Western Australia

MHS appeals against his sentence, arguing that the sentencing judge erred in treating his offending as persistent and that the total effective sentence was disproportionate to the overall criminality of his conduct. The appeal was dismissed by the Court of Appeal. The appellant was convicted of 15 counts of child sex offences involving two nieces, AB and CD. The appellant was acquitted of 13 counts involving AB and one count involving CD. AB was 12 years old when the appellant indecently dealt with her, an offence for which he was sentenced to 8 months' imprisonment. CD was 13 years old when the appellant sexually penetrated her on multiple occasions and indecently dealt with her, for which he was sentenced to varying terms of imprisonment. The total effective sentence was 9 years and 2 months' imprisonment. Ground 1 alleges that the sentencing judge erred in finding that the offending in respect of AB was part of a persistent course of conduct. The Court of Appeal found that the sentencing judge's remarks referred to the totality of the conduct in respect of both complainants and did not make an express finding of persistence in respect of AB. Even if there had been such an error, the Court could refuse leave to appeal if it was satisfied that it was not reasonably arguable that a different sentence should have been imposed. The Court held that it was not reasonably arguable that a different sentence should have been imposed on count 14. Ground 2 alleges that the total effective sentence breached the first limb of the totality principle. The Court held that the total effective sentence of 9 years and 2 months' imprisonment was not plainly unreasonable or unjust when having regard to the maximum penalties for the offences, the seriousness of the offending conduct, the personal circumstances of the appellant and the sentences imposed in broadly comparable cases. The appeal was dismissed and leave to appeal refused.