NQB v The State of Western Australia
[2024] WASCA 93
•31 JULY 2024
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: NQB -v- THE STATE OF WESTERN AUSTRALIA [2024] WASCA 93
CORAM: MAZZA JA
HALL JA
TOTTLE J
HEARD: 6 JUNE 2024
DELIVERED : 31 JULY 2024
FILE NO/S: CACR 71 of 2023
BETWEEN: NQB
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram: BLACK DCJ
File Number : IND 106 of 2022
Catchwords:
Criminal law - Appeal against sentence - Child sex offences - 10 representative offences - Whether sentencing judge erred by failing to conduct a trial of issues to determine whether the appellant was suffering depression at the time of the offending - Whether total effective sentence breached the totality principle
Legislation:
Criminal Code (WA), s 329(2), s 329(4), s 329(9), s 329(10), s 552
Result:
Appeal allowed
Appellant resentenced
Category: D
Representation:
Counsel:
| Appellant | : | A Elliott |
| Respondent | : | L M Fox SC |
Solicitors:
| Appellant | : | In person |
| Respondent | : | Director of Public Prosecutions (WA) |
Case(s) referred to in decision(s):
AAE v The State of Western Australia [2024] WASCA 35
GHK v The State of Western Australia [2014] WASCA 19; (2014) 238 A Crim R 178
Kabambi v The State of Western Australia [2019] WASCA 44
Law v The State of Western Australia [2009] WASCA 193
LJH v The State of Western Australia [2016] WASCA 155; (2016) 261 A Crim R 355
LTT v The State of Western Australia [2022] WASCA 31
LYN v The State of Western Australia [2019] WASCA 45
Lyons v The State of Western Australia [2022] WASCA 81; (2022) 100 MVR 420
MHE v The State of Western Australia [2019] WASCA 133
NE v The State of Western Australia [2021] WASCA 172
OTR v The State of Western Australia [No 2] [2022] WASCA 123
RGT v The State of Western Australia [2017] WASCA 120
Roffey v The State of Western Australia [2007] WASCA 246
The State of Western Australia v AHD [2021] WASCA 13
The State of Western Australia v BKJ [2018] WASCA 136
The State of Western Australia v Malone [2015] WASCA 188
The State of Western Australia v PJW [2015] WASCA 113
WRT v The State of Western Australia [2020] WASCA 68
JUDGMENT OF THE COURT:
Over a period of three years, the appellant committed a series of sexual offences against his stepdaughter. The offending commenced when the complainant was 12 years old, and ended when she was 15 years old. The appellant entered pleas of guilty to 10 counts, and a further 12 counts were discontinued. However, the 10 counts were representative of a continuous course of sexual abuse. He was sentenced to a total effective term of 14 years' imprisonment.
The appellant seeks leave to appeal against his sentence on three grounds. First, the appellant asserts that the sentencing judge erred by failing to conduct a trial of issues as to whether the appellant was suffering from depression at the time of the offending. Secondly, the appellant asserts that the judge's characterisation of the offending as being 'right up the top' of the scale of seriousness was incorrect. Thirdly, the appellant contends that the judge erred by imposing a total effective sentence that was disproportionate to the overall criminality. At the hearing of the appeal, counsel for the appellant accepted that ground 3 was the gravamen of the appeal.
For the reasons that follow, grounds 1 and 2 have no reasonable prospects of success and we would refuse leave in respect of them. As regards ground 3, the total effective sentence imposed was not consistent with sentences imposed in comparable cases. As serious as this offending was, it remained necessary to impose a sentence that properly reflected the relative seriousness of this case as compared to others. Considered in that light, the total effective sentence was unreasonable or plainly unjust. We would grant leave to appeal in respect of ground 3, allow the appeal and resentence the appellant.
Relevant facts
The facts of the offending are not in dispute.
The complainant, JA, was born on 5 September 2005. In 2011, JA's mother, SA, commenced a relationship with the appellant. At the time, SA had two children from a previous relationship, namely JA and a younger male child.[1]
[1] ts 34.
SA and the appellant married on 11 August 2011. They had two children together. They built a house, and the family moved into that property in March 2014. All of the offending occurred in that house.[2]
[2] ts 34.
The appellant pleaded guilty to counts 1, 2, 5, 7, 9, 15, 16, 19, 20 and 21. The remaining counts on the indictment were discontinued.[3]
[3] ts 61.
Count 1 occurred on a date unknown between 4 September 2017 and 5 September 2018, when JA was about 12 years old. The appellant entered JA's bedroom and laid on her bed with her. JA's youngest brother was playing on the floor of the bedroom. The appellant started talking about the home schooling that JA had done that day. JA was lying on the side of the bed closest to the wall. She and the appellant were facing each other, and were very close. The appellant placed his hands beneath JA's shirt and squeezed her breast. The appellant asked JA if it was okay, and she replied, 'No'. He again asked if it was okay. JA then told the appellant that she needed to get a drink, and got up and left the room. Later that day, the appellant approached JA and asked her to accompany him outside for a talk. JA sat on the bench outside their house, whilst her brothers were riding their bicycles. The appellant said to JA, 'Do not tell mum or anyone '[because] it will break our family apart'. Count 1 is an offence of indecently dealing with JA a child who he then knew to be his de facto child, by touching her breast, and that JA was a child under the age of 16 years.[4]
[4] ts 34 - 35.
Count 2 occurred on either the same occasion as count 1 or another occasion at around the same time, and again when JA was about 12 years old. JA and the appellant were lying in her brother's bed, facing each other. They were lying close as it was a single bed, being the lower bed of a bunk bed. The appellant started touching JA and then asked her to suck his penis. JA did not really understand the request. The appellant then pulled his pants down, and moved JA's head towards his penis. As the appellant kept pushing JA's head onto his penis, she opened her mouth. The appellant then moved JA's head up and down, while she had his penis in her mouth. In addition to this and the other charged occasion of enforced fellatio, the appellant requested JA to suck his penis on several other occasions over the years. Count 2 is an offence of sexually penetrating JA, a child who the appellant then knew to be his de facto child, by introducing his penis into her mouth, and that JA was a child under the age of 16 years.[5]
[5] ts 35.
Count 5 occurred on another occasion within the same time period, and again when JA was about 12 years old. At the time, JA did not have an understanding of sexual intercourse. JA and the appellant were lying underneath a blanket in her bedroom. The appellant told JA about sex, and that he wanted to try it with her. He took her pants and underwear off. He then lay on top of JA and tried to put his penis inside her vagina. He used his hands; however, JA could only feel his penis on the outside of her vagina. JA's brother came into the bedroom at some point, and the appellant got off JA. JA put her pants and underwear back on, and the appellant then told JA and her brother stories, using his iPad. Count 5 is an offence of attempting to sexually penetrate JA, a child who he then knew to be his de facto child, by attempting to penetrate her vagina with his penis, and that JA was a child under the age of 16 years.[6]
[6] ts 35.
Count 7 occurred on a date unknown between 4 September 2018 and 5 September 2019, when JA was about 13 years old. JA and the appellant were in the appellant's bedroom. JA's brothers were initially in the room too, and they were all talking. After JA's brothers left the bedroom she and the appellant were lying in the bed facing each other. The appellant started touching JA's vagina beneath her pants and underwear. He first rubbed JA's vagina, then put his fingers inside her vagina. He continued to rub around the inside of JA's vagina. He then pulled JA's pants down, lifted her shirt up, and started kissing her body. As he kissed her body, he made his way downwards, kissing and licking her stomach. Once the appellant got to JA's vagina, he kissed it and then started licking it. He licked the inside of her vagina. The appellant performed cunnilingus on JA on more than one occasion but she could only recall this one, being the first time it occurred. Count 7 is an offence of sexually penetrating JA, a child who the appellant then knew to be his de facto child, by engaging in cunnilingus, and that JA was a child under the age of 16 years.[7]
[7] ts 36.
Count 9 occurred on another occasion between the same dates, and again when JA was 13 years old. The appellant went into JA's bedroom while she was doing her homework. The appellant called JA's brothers into the bedroom. The appellant lay down on the bed and chatted to JA and her brothers about various things, including school. At the time, JA's mother was in her own room as she had a sore back. After JA's brothers left the bedroom the appellant locked the door and laid on the bed with JA. She was on the side of the bed closest to the wall. He started touching her, including squeezing her breasts over her clothing. A little later, JA and the appellant were both standing up. The appellant told JA to bend over, as he wanted to have anal sex with her. JA could not recall the exact words used by the appellant. While standing behind JA, the appellant grabbed her by her hips and pushed her onto the bed, which was in front of her, so that she was in a bent position. He then pulled JA's pants and underwear down. He put his penis inside JA's anus and moved back and forth whilst holding her by her hips. This continued for 'quite a while'. When the appellant removed his penis, JA put her pants and underwear back on, as did he. JA cried as her anus felt 'really sore'. The appellant said something to the effect of 'don't cry'. He then left the bedroom. Count 9 is an offence of sexually penetrating JA, a child who the appellant then knew to be his de facto child, by penetrating her anus with his penis, and that JA was a child under the age of 16 years.[8]
[8] ts 36 - 37.
Counts 15 and 16 were part of a single incident that occurred on a date unknown between 6 March 2020 and 5 September 2020, when JA was aged 14. This incident occurred sometime after the family had returned from a family trip overseas in the first half of 2020. JA's mother and brothers were not in the house at the time, as JA's mother had taken one of her brothers to a hospital to get a COVID‑19 test. JA was in bed when the appellant came to her bedroom and asked her to go to his bedroom. She did so and then laid on the bed in the appellant's bedroom. The appellant started kissing and touching her. He touched her breasts beneath her clothing and squeezed her breasts. He commented that JA had lost weight in her breast area. She recalled that she was trying to lose weight at the time. The appellant then touched JA's vagina beneath her clothes. He inserted his fingers into her vagina and moved his fingers around. At the same time, the appellant was kissing JA on her neck. The appellant took his clothes off, and JA's clothes were also removed. The appellant then rolled JA over, so that she was lying on her stomach on the bed. The appellant knelt behind JA and inserted his penis into her anus. He moved back and forth, and then said something to the effect of 'you should sit down on my lap because it's less painful that way'. JA did as she was told and sat on the appellant's lap, whilst he was lying on the bed. The appellant rubbed his penis to make it erect, and then made JA sit down on his erect penis such that he penetrated her vagina with his penis. The appellant then lay on top of JA and continued to have penile/vaginal penetrative sex with her. He removed his penis before he ejaculated. He did not use a condom. JA's vagina and anus hurt after this incident. This incident was the first time that the appellant had penile/vaginal sexual intercourse with JA, and the last time that they had anal sexual intercourse. Count 15 is an offence of sexual penetration of JA, a child who the appellant then knew to be his de facto child, by penetrating her anus with his penis, and that JA was a child under the age of 16 years. Count 16 is an offence of sexually penetrating JA, a child who the appellant then knew to be his de facto child, by penetrating her vagina with his penis, and that JA was a child under the age of 16 years.[9]
[9] ts 37 - 38.
Counts 19 and 20 occurred on the same occasion on a date unknown between 30 November 2020 and 14 January 2021, when JA was aged 15. On this occasion, JA's mother had gone to work, and her brothers were playing video games. It was daytime, and JA and the appellant were in his bedroom on the bed. The appellant said to JA, 'Can you suck my dick?'. The appellant was lying on his back and pulled his pants down. JA then kissed the appellant's penis and performed fellatio. This was one of numerous occasions when the appellant forced JA to perform fellatio on him. The appellant had a condom on his penis during this incident. He then got on top of JA and had penile/vaginal sex with her. Afterwards, the appellant threw the used condom in a bin near the toilet, and JA had a shower. She and the appellant then sat on the bed and watched television. Count 19 is an offence of sexually penetrating JA, a child who the appellant then knew to be his de facto child, by introducing his penis into her mouth, and that JA was a child under the age of 16 years. Count 20 is an offence of sexually penetrating JA, a child who the appellant then knew to be his de facto child, by penetrating her vagina with his penis, and that JA was a child under the age of 16 years.[10]
[10] ts 38.
Count 21 occurred on 12 January 2021, when JA was aged 15. The appellant sent JA a message saying, 'Come here', meaning that JA was to go to his bedroom. JA went to the appellant's bedroom and stood against a wall while the appellant took all her clothes off. The appellant also took his own clothes off. JA was having her period at this time. The appellant laid a towel out on the bed and JA lay on her back on the towel. JA was wearing a menstrual pad inside her underwear. The appellant took the pad off when he removed her underwear. JA was lying on the bed with her legs apart. The appellant then inserted his penis into JA's vagina and had sexual intercourse with her. He did so until he ejaculated. He was using a condom on this occasion. JA then had a shower, whilst the appellant lay on the bed watching television. The appellant threw the used condom in a bin in the bathroom. Count 20 is an offence of sexually penetrating JA, a child who the appellant then knew to be his de facto child, by penetrating her vagina with his penis, and that JA was a child under the age of 16 years.[11]
[11] ts 38 - 39.
All of the counts were representative of an ongoing course of similar sexual conduct perpetrated by the appellant against JA.[12]
[12] ts 39.
Soon after the last incident, JA revealed to her boyfriend what had occurred, and a report was made to police. The appellant was arrested by police on 14 January 2021, and participated in an interview. During that interview, the appellant denied ever having been naked in a bed with any of the children, including JA. He denied being sexually attracted to JA, and asserted that he had never thought about her in that way as he considered her to be his daughter. He denied the sexual offending. He did admit to having sent a message in which he asked JA to come to his bedroom but said this was because he wanted her to make him a sandwich.[13]
[13] ts 39 - 40.
After being released on bail, the appellant telephoned SA and made threats that he would commit suicide. SA became distressed and handed the telephone to her mother. The appellant then said that he wanted to see SA and his sons and repeated the threat to commit suicide. During the conversation, SA's mother said, 'You have hurt and destroyed [JA]'. The appellant responded, 'I know'.[14]
[14] ts 40.
The appellant did make an attempt to commit suicide. He was then remanded in custody from 27 January 2021. He spent two periods in custody, between 14 and 19 January 2021, and from 27 January 2021 until the time of sentencing on 16 May 2023. The relevant backdating date was 21 January 2021.[15]
[15] ts 40 - 41.
Uncharged acts - contextual matters
In the sentencing proceedings, the learned sentencing judge noted that a number of the charges on the indictment had been discontinued, but that they appeared to relate to conduct that the prosecution had referred to in the statement of facts or were referred to in the prosecution brief, and that the prosecution had also said that the offences were representative in nature. The State prosecutor confirmed that was the position. In particular, her Honour noted that there was a reference in the child witness interview to an incident in which the appellant had shaved JA's pubic area, and that this had originally been the subject of a separate charge that was discontinued. The State said that this act remained relevant as part of the context in which the offences occurred and was evidence of the 'ongoing normalisation of this conduct'.[16]
[16] ts 41 - 42.
JA also spoke in the child witness interview about the appellant showing her pornography purporting to depict fathers having sex with their children. Although this was not the subject of a separate charge, the State confirmed that this was also relevant to the context in which the offences occurred and that her Honour could have regard to it for the purposes of sentencing.[17]
[17] ts 43.
The learned sentencing judge then sought an indication from defence counsel as to whether any issue was taken with the facts or the contextual matters that her Honour had raised. The following exchange occurred:[18]
[18] ts 43 - 44.
[HER HONOUR]: Yes, [defence counsel]. Firstly, do you accept the facts as has been read?
[DEFENCE COUNSEL]: Yes, your Honour.
[HER HONOUR]: All right. And secondly, do you cavil with any of those preliminary matters I raised with [prosecution counsel]?
[DEFENCE COUNSEL]: Well, only in relation to that - the charges that he's plead guilty to are representative. Those other issues that your Honour has raised, although they're in the interview they haven't necessarily been - those actual facts haven't been agreed by the accused, but - - -
[HER HONOUR]: Well, they're not agreed, but - - -
[DEFENCE COUNSEL]: - - - they are - you know, they're untested, if I can - - -
[HER HONOUR]: Well, let me put it this way. I intend to sentence having regard to those facts. So if you want to cavil with those facts we'll need to deal with that. So I intend to sentence your client on the basis that he committed these offences, in the context of also shaving her pubic hair and showing her child pornography involving fathers having sex with daughters. If he says that that's not what happened, you'll need to tell me that and we may need to determine that, because I intend to sentence on that basis.
[DEFENCE COUNSEL]: Yes.
[HER HONOUR]: So do you just double check with him?
[DEFENCE COUNSEL]: Yes, I will, your Honour.
[HER HONOUR]: Thank you.
[DEFENCE COUNSEL]: I won't cavil with that, your Honour.
Victim impact statements
Victim impact statements from JA and her mother, SA, were provided to the sentencing judge.
In her victim impact statement, JA said that she resorted to emotional eating after the offending and gained 20 kg. Her mood has been extremely low, and she has been diagnosed with depression and anxiety. She is unable to trust anyone and lives in fear all the time. This has ruined relationships with family and friends. She used to be very good at school, but she has since dropped out because she was struggling to keep up as she had to deal with emotional stress and trauma. Her depression and anxiety cause her not to want to go out, especially to school. She self‑harmed frequently for months after the appellant went into custody. She had suicidal thoughts almost every day from the time the offending started until sometime after the appellant went into custody. The appellant made her feel like she was not good enough and that the offending was her fault.
JA was prescribed antidepressants in 2021, and engaged in counselling during that year. She believes that she will need more counselling in the future when she is ready to deal with the trauma. The court proceedings caused her stress and affected her mental health. Her self‑esteem is very low because of the weight she gained as a result of emotional eating caused by the offending. She has nightmares from the offences and her sleep has been generally affected. She feels that she cannot commit to anything of a sexual nature because to do so would be triggering.
SA's victim impact statement confirms the impact on JA. She also states that she has had to learn, overnight, to become self‑sufficient and to manage a mortgage and bills by herself. She refers to watching her children hurting and crying because everything happened so quickly and they do not understand why. This has required her to give the care and reassurance to her children that they need. She states that the appellant has put the whole family through a great deal of trauma. She states that they have had to move to get out of the house and have a fresh start in a new location, with a better chance of healing. She continues to feel anxiety and a lack of safety regarding the appellant.
Personal circumstances
The appellant was born on 12 February 1988, in India. He was aged between 29 and 33 years at the time of the offending. He was aged 34 years at the time of sentencing.[19]
[19] Pre-sentence report, dated 12 October 2022, 1.
The appellant is the younger of two children born to his parents' union. His older brother and parents remain in India. The appellant undertook his schooling in India. He reported being good at school, and he was encouraged by his parents to pursue higher education. His family were poor farmers, but they were hard workers. The appellant said that he knew that his parents loved him, but they were not overly demonstrative.[20]
[20] Pre-sentence report, dated 12 October 2022, 2.
The appellant claimed that when he was around 10 years of age he was sexually assaulted by friends of his older brother. Others in his village seemed to know of the abuse and mocked him, leading to shame and guilt. He had few friends and tended to keep to himself.[21]
[21] Psychological report, dated 11 October 2022, 2.
The appellant went to college in India and obtained an engineering diploma. He moved to Western Australia when he was aged 20 to undertake a Bachelor of Engineering degree at Edith Cowan University. He stopped studying full‑time in 2010, but returned to study in 2015 and completed his degree. In the intervening years, the appellant undertook managerial roles in a number of companies. He also did nightwork as a shelf‑stacker at supermarkets. He claimed he found it very hard to find work in the field in which he had qualifications.[22]
[22] Psychological report, dated 11 October 2022, 2 - 3.
The appellant secured employment as a manager in a supermarket chain in 2017. He progressed quickly to become a store manager in 2018. This enabled the appellant to pay off debts, have yearly trips back to India to visit family, and buy a home. However, the appellant described the work as stressful because he was on‑call 24 hours a day. In 2018, he was assaulted at work and that he returned to work two days after the incident, not wanting to appear weak. He then began to hate work, often returning home and drinking excessively.[23]
[23] Psychological report, dated 11 October 2022, 3.
The appellant met SA online in 2011, and she quickly fell pregnant. She had two children by a prior relationship, one of them being JA. As a result of entering into this relationship, the appellant needed to gain employment to support the family. This resulted in him leaving university. The appellant stated that he loved SA's children and was comfortable being an instant father. The appellant and SA eventually had two children together.[24]
[24] Psychological report, dated 11 October 2022, 3.
The appellant had converted to Christianity whilst in prison. A character reference from a prison chaplain stated that the appellant had taken his new‑found Christian faith very seriously and that it was now the main anchor and guide of his life. The chaplain stated that:[25]
Though this has brought him a lot of joy and hope it has also meant that he has had to confront the painful truths of his past actions. This has meant that he has had to admit first to himself and also later to others [what he had done].
[25] WAB 107.
Another prison chaplain said that the appellant, after becoming a Christian, reported that feelings of sadness and hopelessness were replaced with constant joyfulness and an overwhelming sense of being forgiven by God, leading to a firm hope for the future, whatever that future might hold. The transformation that took place was described as 'quite remarkable'. It was said that the appellant's 'heartfelt remorse' was genuine, and that the writer was confident that the appellant would return to the community and make a positive contribution.[26]
[26] WAB 105.
The appellant has no relevant prior criminal convictions.[27]
[27] ts 55, 71.
The pre-sentence report and the psychological reports
The sentencing judge was provided with a pre‑sentence report, a psychological report dated 11 October 2022, and an updated psychological reported dated 13 January 2023.
In the pre‑sentence report it was stated that, whilst the appellant acknowledged his behaviour and accepted some culpability, he appeared to justify his offending based on his own mental health concerns and perceived injustices. The appellant acknowledged that his offending behaviour would have a lifelong impact on JA, and appeared genuine in his display of victim empathy. He denied any sexual interest in children, and claimed that his offending behaviour was driven by loneliness and feelings of betrayal in relation to his wife (which are referred to in more detail later).[28]
[28] Pre-sentence report, dated 12 October 2022, 2.
In the first psychological report, it is recorded that the appellant reported increasing paranoia following the workplace assault in 2018. He said that he did not feel safe either at home or work. He described feeling delusional, paranoid, and disconnected from the world. He initially sought help from psychological services provided at his university. He was then referred to a psychiatrist in 2019. He said that he was diagnosed with post‑traumatic stress disorder and severe depression (although this was not independently confirmed). He said that he engaged in psychological counselling around this time. He claimed that he was prescribed an anti‑psychotic medication, but this only made things worse.[29]
[29] Psychological report, dated 11 October 2022, 3 - 4.
Whilst the appellant denied illicit substance use, he did refer to abusing medication that was prescribed to him following his assault. He said that he took more medication than was prescribed and mixed it with alcohol. He said that he would often buy alcohol after finishing work and consume a bottle whilst playing with the children.[30]
[30] Psychological report, dated 11 October 2022, 4.
The appellant claimed that he discovered his wife was being unfaithful in 2016 or 2017, but was unable to discuss this situation and remained in the marriage. He attributed his offending behaviour to past unaddressed trauma as a child, alcohol misuse, and feelings of betrayal as a result of his wife being unfaithful. He said that at the time the offences commenced he was depressed and started to randomly watch pornography, and that this increased following his assault at work. He said that he took comfort in his stepdaughter's company and viewed his behaviour as a sexual escape. He acknowledged that whilst JA was compliant, she was young and confused and did not know what to do. He reiterated that what occurred was no one's fault but his own and admitted that he was too arrogant to address the problems in his life.[31]
[31] Psychological report, dated 11 October 2022, 3 - 4.
After the appellant was arrested and released on bail, he consumed weed killer in a suicide attempt. He awoke in hospital after being in a coma for 10 days and was then transferred to prison. He stated that he was on dialysis for two weeks due to kidney damage and was initially prescribed a large array of medications. He has since fully recovered and has ceased all medications.[32]
[32] Psychological report, dated 11 October 2022, 4 - 5.
In the first psychological report, it is stated that the appellant expressed genuine emotions regarding the loss of contact with his wife and children. He understood his role in this outcome, appearing to understand that it was completely his responsibility, and he did not blame or attribute any responsibility to others. He remains hopeful that his sons will contact him again in the future, although he does not expect forgiveness from anyone. He added that he hoped his wife and children were coping, especially financially. He stated that he was more than willing to undertake any programmes or counselling deemed appropriate.[33]
[33] Psychological report, dated 11 October 2022, 7.
An assessment of the risk of reoffending was undertaken by the psychologist. The appellant was assessed as being of average risk, that is, he is expected to have roughly the same risk of recidivism as the average individual convicted of a sexually motivated offence. He was assessed as displaying some degree of insight, and of being a good candidate for specialised group‑based intervention to address his sexual offending.[34]
[34] Psychological report, dated 11 October 2022, 7.
In the period that the appellant was remanded in custody prior to sentencing, he had taken up educational opportunities and engaged in what he described as a 'conversion'. In the psychological report, it is stated that the appellant credited the large degree of change in his mindset to his reading of the Bible. He said that one day he 'woke up' and felt at peace, incredibly happy, joyful, and recovered from the after‑effects of his suicide attempt.[35]
[35] Psychological report, dated 11 October 2022, 4 - 5.
Sentencing submissions
In the course of sentencing submissions, the learned sentencing judge noted that the picture painted by the appellant was not one that she was prepared to accept. In particular, her Honour was not prepared to accept that the appellant had sought comfort from JA because his relationship with his wife was 'off the boil'. Her Honour was not prepared to accept that this, in any way, justified or mitigated the appellant's conduct. Further, her Honour noted that SA had referred to the appellant as being violent, abusive, manipulative, dominating, and controlling, and that this description was more consistent with the offending than the explanation advanced by the appellant. Her Honour took the view that the appellant was choosing to present himself in a way that did not reflect the full picture.[36]
[36] ts 45 - 49.
The sentencing judge did not consider that the appellant's attempt at suicide after his arrest was an indicator of remorse. Rather, she viewed it as a response to being caught and a realisation that the appellant could no longer be part of his family.[37] Her Honour noted:[38]
[The appellant] in one of the materials said that he doesn't feel any anxiety or depression about this, he just feels only joy.
I really struggle how a man who has completely destroyed his daughter's life, had sex with her on countless occasions over three years, but in a time period leading up to coming to court to be sentenced for this conduct could be experiencing joy at this point. It actually really sits badly for me in terms of someone who is actually truly understanding of the harm that he has caused to someone who was supposed to be protected by him. I struggle with that.
[37] ts 49 - 50.
[38] ts 50.
With respect, it would seem that the sentencing judge misunderstood the context in which the references to joy were made in the psychological report and in the references from the prison chaplains. It was not suggested that the appellant felt any joy regarding what he had done. To the contrary, the reports and references spoke of him having accepted responsibility for that conduct and of being remorseful for it. The joy he felt was in his new‑found Christian faith. That he found his faith uplifting and comforting did not detract from his claims of remorse.
In sentencing submissions, the State prosecutor said that the pleas of guilty came just before the matter was to proceed to a special hearing to pre‑record JA's evidence. That was approximately 18 months after the allegations came to light. This was relevant to any assessment of the value of the pleas of guilty, and also indicated that remorse was not demonstrated at an early stage.[39]
[39] ts 55.
In the course of the State's sentencing submissions, the sentencing judge noted that she had looked to other cases but could not find any of assistance because there were 'so many aggravating features here'. Her Honour said:[40]
[HER HONOUR]: [T]he degree of and the nature of the sexual abuse of the complainant was worse than pretty much any of the ones that I looked at for the post‑2021. I'm not suggesting there aren't worse cases. I mean, there's cases, obviously, where people have got, you know, 28, 29 years now for - - -
[PROSECUTION COUNSEL]: Yes.
[HER HONOUR]: - - - these sort of offences. I'm not suggesting it's in that category.
[PROSECUTION COUNSEL]: No.
[HER HONOUR]: But equally, this is a lot more serious than any of the cases that I was looking at from the last few years.
[40] ts 57.
A little later, her Honour said:[41]
[HER HONOUR]: I mean, a person who goes and has anal sex with a 13‑year‑old girl who's a stranger to them without consent where they're crying at the end and he tells them not to be upset would be looking at a significant term of imprisonment in and of itself.
[PROSECUTION COUNSEL]: Yes, your Honour.
[HER HONOUR]: The accused has done this on four occasions.
[PROSECUTION COUNSEL]: Yes.
[HER HONOUR]: Let alone all the other counts. So yes, there's no doubt that it's right up the top. (emphasis added)
[41] ts 58.
Sentencing remarks
Grounds 1 and 2 allege express error, and those parts of the remarks that relate to those grounds will be identified and referred to. Ground 3 alleges an implied error and does not depend on the content of the sentencing remarks.
The sentencing judge noted in her sentencing remarks that the offences were representative. She said, 'What that means is that the conduct of the accused was in fact far greater than any individual charge or, indeed, all of the ten charges reflect'. Her Honour said that the offences represented a course of conduct by the appellant over a period of about three years, from when JA was 12 until she was 15. Her Honour said that the appellant used JA as his 'sexual tool and object to meet his own needs'.[42]
[42] ts 62.
The sentencing judge then said:[43]
There are a large number of aggravating features that make this sexual misconduct of the highest order in my view. Those matters include the following. (emphasis added)
[43] ts 62.
The sentencing judge then set out the following aggravating factors:[44]
[44] Sentencing remarks, ts 62 - 64.
(1)That the appellant had shown JA pornography depicting fathers having sex with their daughters. The appellant had by this means sought to normalise the conduct towards JA, as well as providing stimulation and arousal for himself.
(2)During the course of the offending, the appellant shaved JA's pubic hair, an act that would have been embarrassing and humiliating, and, undoubtedly, uncomfortable for JA. Her Honour found that the reason the appellant engaged in this conduct was because he did not want JA to have too much genital hair when he was engaging with her in a sexual manner.
(3)That at least on one occasion, JA was having her period. This is likely to have added to the humiliation, embarrassment, and pain that JA suffered.
(4)That the appellant was oblivious to JA's actual distress and pain at the time of the offending.
(5)That the appellant told JA not to tell her mother because to do so would break the family apart. In doing this, the appellant attempted to shift responsibility for the implications of what he was doing to JA.
(6)That on at least one occasion, the appellant did not use a condom, thereby running the risk of pregnancy.
(7)That the offences involved a significant breach of trust of the appellant's position as step‑father to JA.
(8)That the appellant was significantly older than JA at the time of the offences.
(9)That the offending had continued over a three‑year period.
The sentencing judge noted that after a complaint was made to the police, the appellant initially lied about whether he had sexually offended against JA. At that time, there was clearly no remorse. That position continued with the appellant initially entering pleas of not guilty to the charges. Pleas of guilty were entered 'belatedly' and saved JA the trauma of having to give evidence. For that reason, her Honour said that a discount of 15% pursuant to s 9AA of the Sentencing Act 1995 (WA) was appropriate.[45]
[45] ts 65 - 66.
As regards mitigating factors, in addition to the appellant's pleas of guilty the sentencing judge referred again to remorse. In this respect, her Honour said:[46]
In terms of the evidence, the evidence is that the accused is remorseful. This comes from people's assessment of things said by the accused. I don't say that that in itself means I can't find remorse, but it comes from the fact that the accused, as I understand it, has initially, after denying the offences came to a point of admitting them.
When he went into custody he took hold of the Christian faith, became a committed Christian, engaged in various Christian programs, mixed with various people who come to the prison, and I am told is completely remorseful and has been repentant.
[46] ts 68.
The sentencing judge said that she accepted that the appellant realised that what he did was morally wrong, but she struggled with whether there were any genuine signs of sorrow for the impact or consequences of the offending. Her Honour accepted that the pleas of guilty were a demonstration of remorse and accepted that the appellant had embarked on a 'pathway towards being remorseful'.[47] However, her Honour said:[48]
[I]t seems to me at least that the accused doesn't yet grasp, even if he says that he does, the impact of his actions upon the lives of others, independent of the impact on him.
I accept that he's on that path, but I don't accept that he's got there. That's borne out by the psychological material, which suggests that he remains effectively still a risk of reoffending. He's not put as a high risk, nor is he put as a low risk, but there is still a risk there.
[47] ts 69 - 70.
[48] ts 70.
The sentencing judge referred to the references given by the prison chaplains, and then said:[49]
To me, I cannot see how that could sit consistent [sic] with someone who truly yet understands the impact of his actions upon his daughter and her mum. If he truly understood and appreciated the extent of the harm he has caused, he should be far, far, far away from experiencing a state of joy. This should be a burden.
It should be a burden [the appellant]. It should be a matter that weighs on your conscience. Christianity, repentance are not matters that enable you to escape responsibility for what you have done.
[49] ts 70.
The sentencing judge then turned to the seriousness of the conduct, and said, 'This conduct is at the highest end of the scale for this kind of offending, and I've already stated all of the aggravating features that make it so' (emphasis added).[50] A little later, her Honour said, 'This I find are serious examples of that conduct'.[51]
[50] ts 71.
[51] ts 71.
The sentencing judge then said that if she were to impose appropriate sentences for each individual offence and then add them up, the sentence would be very long, and that it was appropriate to have regard to the principle of totality. She said that this meant that some of the sentences for the individual offences would be less than they might otherwise have been.[52] Regrettably, her Honour did not state what her starting point (before reduction for totality) was in respect of the individual sentences. That would have been the orthodox approach and would have assisted in understanding how the final sentences were determined.
[52] ts 71 - 72.
The sentencing judge then imposed the following sentences:[53]
[53] ts 72.
Count 16 months' imprisonment
Count 23 years' imprisonment
Count 52 years' imprisonment
Count 73 years' imprisonment
Count 94 years' imprisonment
Count 154 years' imprisonment
Count 164 years' imprisonment
Count 193 years' imprisonment
Count 204 years' imprisonment
Count 214 years' imprisonment
The sentencing judge ordered that the sentences on counts 2, 7, 9 and 21 were to be served cumulatively, and the other sentences were to be served concurrently. This produced a total effective sentence of 14 years' imprisonment. That sentence was backdated to 21 January 2021 to take into account time spent in custody. An order was made that the appellant be eligible for parole. A lifetime family violence restraining order protecting JA was made.[54]
[54] ts 73 - 74.
Grounds of appeal
The grounds of appeal are as follows:[55]
1.The learned primary judge erred in rejecting the evidence that [the appellant] was in a depressive state at the time of the offending and that this had occurred as a result of the breakdown of his relationship with his wife (which may have provided some mitigation of sentence) without holding a trial of issues to determine whether the account reported upon by the psychologists was to be preferred over the untested narrative of the wife.
2.The learned primary judge erred in categorising the offending as being 'right up the top' and imposing a sentence which reflected, or was influenced by, that categorisation; and
3.The learned primary judge erred in imposing a total effective sentence which was manifestly excessive.
Ground 1 - disposition
[55] WAB 7.
By ground 1, the appellant asserts that the sentencing judge erred by failing to hold a trial of issues before refusing to accept the defence assertion that he was suffering from depression at the time of the offending, and, as a consequence, by failing to take this into account as a mitigating feature. In essence, the appellant claims that he was denied an opportunity to prove a mitigating factor.
A factor that reduces the culpability of an offender is a mitigating factor. Mental illness falling short of insanity can, in some circumstances, reduce the culpability of an offender and thus be a mitigating factor. The onus of proving a mitigating factor is on the offender. If the factor is contested it must be established on the balance of probabilities. If a sentencing judge is not prepared to accept a mitigating factor advanced on behalf of an offender, the proper course is to put the offender on notice and to allow an opportunity to prove the factor by calling evidence at a trial of issues.[56]
[56] Law v The State of Western Australia [2009] WASCA 193 [31] ‑ [32].
In this case, there was some reference to depression in the psychological reports, but there was no independent confirmation that the appellant had ever been formally diagnosed with that condition. The appellant claimed that he suffered depression after forming a belief that his wife was having an affair, and that this was subsequently exacerbated as a result of a workplace assault. However, this was a mere unsubstantiated assertion by the appellant.
The sentencing judge doubted that there was any meaningful causal connection between the appellant's claimed mental health struggles and his offending. This was made apparent during the course of submissions when her Honour said, in regard to the appellant's claims of depression, 'I cannot for the life of me see the connection between it all'.[57] Her Honour expressed the view that it was hard to reconcile the appellant's account of the reasons for the offending with the description of the appellant by his wife as abusive and controlling. The necessary implication was that her Honour was not prepared to accept that the appellant was suffering any significant mental illness at the time of the offending, nor that any mental illness had any relevant causative effect.
[57] ts 46.
Defence counsel was on notice that the sentencing judge was not prepared to accept the appellant's claims that depression was a causative factor. Defence counsel did not seek to provide any substantiation of the appellant's claims, nor did he seek a trial of issues. The onus was on the appellant to establish this factor on the balance of probabilities. That course was not taken. There may well have been sound forensic reasons for not pursuing the matter.
In any event, it must be doubted that even if the appellant did suffer depression at the time of the offending, any causal connection between that condition and the offending could have been established. As was noted in The State of Western Australia v Malone:[58]
The effect of a mental disorder, intellectual disability or psychological difficulties (falling short of insanity and which have not been self‑induced) on the moral blameworthiness or culpability of an offender is variable. It depends upon the nature, effect and severity of the condition and its symptoms.
[58] The State of Western Australia v Malone [2015] WASCA 188 [74].
It is far from apparent that there could possibly be a causative link between depression and persistent sexual abuse of a child, such as occurred in this case. The wrongfulness of that conduct was readily apparent, and the appellant did not dispute that it was apparent to him at the time. It cannot be mitigating that the appellant 'sought comfort' through sexual offending against his stepdaughter. His offending met a sexual desire and did so at the expense of JA's wellbeing.
Ground 1 has no reasonable prospect of success and leave in respect of it should be refused.
Grounds 2 and 3 - relevant sentencing principles
These two grounds were argued together. As regards ground 2, this was an allegation that the sentencing judge erred by characterising the offending as being 'right up the top' and imposing a sentence that reflected that assessment. The appellant submits that that assessment of the seriousness of the offending resulted in the imposition of a higher sentence than was appropriate.
This court has previously noted that a sentencing judge's characterisation of the seriousness of an offender's offending involves an evaluative judgment, not a finding of fact. Often, a challenge on appeal to that characterisation is better seen as a particular of a ground of appeal that alleges manifest excess (or a breach of the totality principle).[59] Seen in this light, the sentencing judge's characterisation of the seriousness of the appellant's offending is better viewed in the context of evaluating the total effective sentence and whether it breached the totality principle. Leave in respect of ground 2, as a separate ground, should be refused.
[59] Lyons v The State of Western Australia [2022] WASCA 81; (2022) 100 MVR 420 [67].
The legal principles governing appeals contending that a total effective sentence infringes the first limb of the totality principle are well known. In Roffey v The State of Western Australia,[60] McLure JA (Steytler P & Miller JA agreeing) said of the totality principle:
The appellant relies on the totality principle which comprises two limbs. The first limb is that the total effective sentence must bear a proper relationship to the overall criminality involved in all the offences, viewed in their entirety and having regard to the circumstances of the case, including those referable to the offender personally.
The second limb 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. An aggregate sentence may be inappropriately long under the first limb even if it cannot be described as crushing.
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 sentences have been served. (footnotes omitted)
[60] Roffey v The State of Western Australia [2007] WASCA 246 [24] - [26].
The general principles governing appeals contending that error should be inferred on the basis that an individual sentence is manifestly excessive or inadequate, or that the total effective sentence infringes the first limb of the totality principle, are well established. Those principles were summarised in Kabambi v The State of Western Australia:[61]
(1)Sentencing is a discretionary exercise. An appellate court can intervene only if the appellant demonstrates either an express or implied material error. Express error involves acting on a wrong principle, for example by mistaking the law or facts or taking into account an irrelevant matter. Implied error arises where the end result is so unreasonable or unjust that the court must conclude that a substantial wrong has occurred. Thus, an appellate court cannot substitute its own opinion for that of the sentencing court merely because the appellate court would have exercised a sentencing discretion differently.
(2)In order to determine whether a sentence for an individual offence is manifestly excessive or inadequate, the offence should be viewed in light of the maximum sentence prescribed by law for the crime, the standards of sentencing customarily imposed with respect to it, the place that the criminal conduct occupies in the scale of seriousness of crimes of that type, and the offender's personal circumstances.
(3)The first limb of the totality principle requires that the total effective sentence imposed on an offender who has committed multiple offences bears a proper relationship to the overall criminality involved in all of the offences (including those, if any, in respect of which the offender is still serving or is yet to serve a term of imprisonment), viewed in their entirety, having regard to all relevant facts and circumstances including those referable to the offender personally (and including, for example, the desirability of accommodating any wish to rehabilitate), all relevant sentencing factors and the total effective sentences imposed in comparable cases.
(4)The range of sentences customarily imposed for a crime does not establish the range of a sound exercise of the sentencing discretion. Sentences customarily imposed in comparable cases provide a yardstick or reference point for ensuring broad consistency in sentencing, bearing in mind the scope for significant variations in relevant sentencing factors, and that there is no single correct sentence. What is important is the unifying principles which sentences imposed in comparable cases reveal and reflect.
(5)When this court dismisses an appeal against sentence and when it resentences on a successful appeal, its decision does not fix the upper or lower limit of the range.
(6)Where there is a challenge on totality grounds, the severity of a sentence imposed on an individual count generally falls to be assessed in light of the sentences imposed in respect of the other counts and its contribution to the total effective sentence. A heavy individual sentence (which is not manifestly excessive) may be softened by an order that it be served concurrently with sentences imposed in relation to the other counts. A relatively light sentence (which is not manifestly inadequate) may, as a practical matter, have increased severity if it is ordered to be served cumulatively. The real question is whether the total effective sentence is unreasonable or plainly unjust.
[61] Kabambi v The State of Western Australia [2019] WASCA 44 [21].
In OTR v The State of Western Australia [No 2], this court stated that the well‑established general principles applicable to the sentencing of offenders convicted of sexual offending against children are as follows:[62]
[62] 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. (footnotes omitted)
The approach to the use of comparable cases is also well established. The following principles were distilled in The State of Western Australia v PJW:[63]
1.The guidance afforded by comparable cases is flexible rather than rigid.
2.The mere fact that a sentence is within or beyond the range of other sentences imposed for similar offending does not, of itself, establish that the sentencing discretion has or has not miscarried.
3.The sentencing range for comparable offences is merely one factor to be taken into account in deciding whether an individual sentence is manifestly inadequate or excessive and whether the total effective sentence infringes the first limb of the totality principle.
4.A range of sentences for comparable cases does not fix the range of a sound exercise of the sentencing discretion in a particular case.
5.When an appellate court dismisses an appeal against sentence or resentences an offender, the decision does not of itself fix the upper or lower limit of the range.
6.There is no tariff for sexual offences against children.
7.The sentence to be imposed in a particular case depends on the individual facts and circumstances, having regard to the maximum penalties and all relevant sentencing factors.
[63] The State of Western Australia v PJW [2015] WASCA 113 [36] ‑ [39].
The limited utility of broadly comparable cases has been emphasised in the context of sexual offending, including sexual offending against children given the wide variety of offending conduct. In OTR [No 2], it was said:[64]
It is particularly the case that there is limited utility in comparing total effective sentences in the context of sexual offending against children. The total effective sentence in another case can only provide very limited guidance as to whether the total effective sentence imposed in the case under appeal infringes the first limb of the totality principle where: (1) there is no established tariff for sexual offences involving children; and (2) the range of sexual offending and sexual offenders are infinitely variable. Moreover, often, given the wide variety of combinations of offending conduct, offenders and victims involved in sexual offences against children, different views may reasonably be taken as to whether the overall criminality involved in a group of offences in one case is greater or lesser than that involved in a group of offences in a different case. That variety makes it difficult to identify direct comparators and complicates any attempt to analyse whether the total effective sentence imposed in a particular case reveals a comparatively more severe or lenient approach than that adopted in a different case. (footnotes omitted)
Ground 3 - appellant's submissions
[64] OTR [No 2] [62].
The appellant accepts that the offences were serious and deserving of a substantial term of imprisonment. However, the appellant submits that, when regard is had to comparable cases, the total effective sentence in this case is unreasonable or plainly unjust.[65]
[65] WAB 8.
The appellant submits that the cases of LJH v The State of Western Australia[66] and MHE v The State of Western Australia[67] are broadly comparable to the present case. The total effective sentences of 10 years in each of those cases supports a conclusion that the sentence in this case is disproportionate to the overall criminality.[68]
[66] LJH v The State of Western Australia [2016] WASCA 155; (2016) 261 A Crim R 355.
[67] MHE v The State of Western Australia [2019] WASCA 133.
[68] WAB 11.
The appellant also refers to RGT v The State of Western Australia[69] and The State of Western Australia v BKJ,[70] in which sentences of 16 years were imposed for offences that the appellant submits were significantly more serious than in the present case. That differential is also said to support a conclusion that the total effective sentence in this case was disproportionate to the overall criminality.[71]
Ground 3 - respondent's submissions
[69] RGT v The State of Western Australia [2017] WASCA 120.
[70] The State of Western Australia v BKJ [2018] WASCA 136.
[71] WAB 20 - 22.
The respondent submits that the overall criminality in this case is undoubtedly high. There were a number of aggravating factors and the impact on the complainant has been profound. There were few truly mitigating factors, other than the guilty pleas. The appellant's emerging remorse and prior good character were factors that could carry little weight.[72]
[72] WAB 39 - 40.
The respondent submits that the cases relied on by the appellant do not support a conclusion that the total effective sentence in this case was outside the available range. LJH involved offending over a shorter period against a complainant who was older when the abuse commenced. Further, whilst LJH involved various forms of sexual activity, it did not involve anal penetration. The offender in that case received a higher discount for pleading guilty (20%). MHE involved more offences, but they took place on 14 days in a one‑year period. The offender in MHE proactively disclosed some of the offences and entered early guilty pleas. RGT involved offending against three children but did not include some of the aggravating features present in this case. BKJ also involved more offences but many of them were voluntarily disclosed by the offender, and he entered guilty pleas at the earliest reasonable opportunity.[73]
Ground 3 - disposition
[73] WAB 41 - 43.
The first limb of the totality principle requires a judge who is sentencing an offender for multiple offences to ensure that the total effective sentence bears a proper relationship to the overall criminality involved in all of the offences, viewed in their entirety and having regard to the circumstances of the case, including those referable to the offender personally. A claim that a total effective sentence infringes the totality principle asserts an implied error. For such a claim to succeed, the appellant must establish that the aggregate sentence is unreasonable or plainly unjust.
The totality of the appellant's offending was very serious and deserving of a substantial term of imprisonment. The fact that the offending was representative in nature does not mean that the appellant fell to be punished for matters for which he was not convicted, but it does place the offences into a proper context. That is, the context is relevant in assessing the seriousness of the offences of which the appellant was convicted. That context was one of continuing and persistent sexual abuse of a serious nature against the appellant's stepdaughter over a three‑year period.
The issue raised by the appellant is whether the total effective sentence was disproportionate to the overall criminality such as to breach the first limb of the totality principle. This requires consideration of the maximum statutory penalties for the offences, the seriousness of the offending as a whole, the personal circumstances of the appellant, and any assistance that can be derived from comparable cases.
The maximum penalties for the individual offences are as follows:
1.Sexual penetration of a child who the offender knows is his de facto child, where the child is under the age of 16 years, contrary to s 329(2) and s 329(9) of the Criminal Code (Code): 20 years' imprisonment (counts 2, 7, 9, 15, 16, 19, 20 and 21).
2.Indecent dealing with a child who the offender knows is his de facto child, where the child is under the age of 16 years, contrary to s 329(4) and s 329(10) of the Code: 10 years' imprisonment (count 1).
3.Attempted sexual penetration of a child who the offender knows is his de facto child, where the child is under the age of 16 years, contrary to s 329(2), s 329(9) and s 552 of the Code: 10 years' imprisonment (count 5).
Those penalties reflect the very serious nature of offences of indecent dealing and sexual penetration of a de facto child. It is relevant to note that where the child is not a lineal relative or de facto child, similar offences under s 321 of the Code attract lower maximum penalties (7 years and 14 years respectively), except where the child is under the care, supervision or authority of the offender (in which case the maximum penalties are the same).[74]
[74] Criminal Code, s 321(7).
The offending involved a gross breach of the appellant's trusted role as a stepfather. He had been in that role since JA was 4 years old. However, it is important to note that that role was an element of the offence and thus not an additional aggravating factor. The role of the offender as a de facto parent was reflected in the high maximum penatly for this offence. Care must be exercised not to double count this factor.
The offending included multiple offences of sexual penetration or attempted sexual penetration. These included acts of digital penetration, penile penetration of the vagina, and penile penetration of the anus. The appellant persisted in this conduct even when JA expressed reluctance and pain. He persisted on one occasion when she had her period. He was aware that JA was sexually inexperienced, and this offending resulted in JA's loss of her virginity. He exposed JA to pornography and sought to normalise the conduct. The effects upon JA have been profound.
From the outset, the appellant sought to ensure that JA did not disclose the offending by telling her that if she did it would destroy the family. By this means the appellant sought to shift responsibility for his offending and the consequences of it to the complainant. The effectiveness of this ploy is apparent from the fact that the offending continued for over three years before JA felt able to disclose it.
The offending included the following aggravating factors:
(1)The offending was persistent. It involved ten representative offences over a three‑year period.
(2)JA was vulnerable by reason of her age and relationship to the appellant as his stepdaughter.
(3)There was a marked difference in the ages of the appellant and JA.
As to the appellant's personal circumstances, the only significant mitigating factor was his pleas of guilty. Those pleas were entered prior to trial and before any pre‑recording of JA's evidence, but plainly not at the first reasonable opportunity. They were nonethless of real value and deserving of a significant discount.
The sentencing judge accepted that the appellant was on the path to remorse, but that he had initially denied the offending and was yet to fully appreciate the consequences of what he had done. Those findings are not the subject of any challenge and were open to the sentencing judge on the material before her.
As to other personal factors, the appellant has no relevant prior criminal record. He has a favourable work history. He had conducted himself creditably within prison and had made some steps towards rehabilitation, including by meaningfully engaging with his Christian faith. His risk of reoffending is average, that is, at the same level as other sexual offenders. These matters have to be weighed against the fact that matters personal to an offender usually have less significance in respect of offences of this nature.
Comparable cases must be considered in light of the fact that sentencing is a discretionary decision and there is no single correct sentence in any particular case. Accordingly, comparable cases only provide a guide or yardstick. No single case sets the limits of sentencing discretion. While the criminal justice system strives for consistency in sentencing, that consistency is achieved by viewing all relevant factors in the context of the range of sentences customarily imposed for similar offending.
We are also mindful of the observation made by Quinlan CJ in MHE:[75]
As with many discretionary decisions, the sentencing of an offender for sexual offences against children is a difficult exercise. All such offending is inherently serious and engenders moral revulsion.
It may seem strange to some, in those circumstances, for the court to embark on a process of placing a particular offender's conduct within a scale of severity of such conduct generally, all of which is deplorable. But that is what the law requires the court to do, both at first instance and, where necessary, on appeal. The court's duty, in that regard, requires a careful consideration of all relevant sentencing principles, together with whatever guidance may be afforded by consideration of comparable cases.
[75] MHE [4].
As to the comparable cases referred to by the appellant, in LJH the offender pleaded guilty to 43 representative counts of sexual offending against his de facto daughter, of which 26 counts were sexual penetration offences. Some of the offences were of indecently recording the sexual conduct. The offending occurred over a 21‑month period and the complainant was aged between 14 and 15 at the time. One of the appeal grounds related to the discount for pleading guilty and another related to the total effective sentence. On appeal, a discount of 20% was allowed for the guilty pleas and the total effective setence of 13 years' imprisonment was reduced to 10 years' imprisonment.
In MHE the offender pleaded guilty to 87 offences involving sexual offending against his three de facto children. Those offences included 21 sexual penetration offences. The offending did not involve penile/vaginal penetration or penile/anal penetration. The offences occurred on 14 separate days over an approximately 12‑month period, all but three occurring in the last six months. The children were aged 15, 11 and 8; and all but one of the offences were committed against the two older children. The guilty pleas were entered at the first reasonable opportunity and a discount of 25% was allowed. On appeal the total effective sentence of 12 years 6 months' imprisonment was reduced to 10 years' imprisonment.
In RGT the offender pleaded guilty to 29 counts of sexual offending against three children, including a 2‑year‑old child. One of the children was a lineal relative and another was a de facto child of the offender. The offences included 16 sexual penetration offences and seven offences of indecently recording some of the acts. The offender entered guilty pleas, though some came at a late stage resulting in discounts of between 12.5% and 15%. The offender's personal circumstances were not favourable and his risk of reoffending was moderate to high. On appeal, the total effective sentence was reduced from 19 years' imprisonment to 16 years' imprisonment.
In BKJ the offender pleaded guilty to 61 counts, of which 58 were sexual offences against the offender's daughter. The offending continued over a 10‑year period, when the complainant was aged between 2 and 12 years old. The offences included 19 sexual penetration offences and 24 offences of indecently recording some of the acts. The offender entered his guilty pleas at the first resonable opportunity and a discount of 25% was allowed. On appeal the total effective sentence was increased from 14 years' imprisonment to 16 years' imprisonment.
In MHE Mitchell and Beech JJA referred to sentences imposed in many other cases, in particular:[76]
[76] MHE [91].
There are a number of cases where total effective sentences in the region of 12 to 13 years' imprisonment have been imposed, after pleas of not guilty, for sustained sexual offending that included penile/vaginal penetration. Such cases include:
(1)MAS v The State of Western Australia (12 years; 25 counts, including penile/vaginal penetration, penile/anal penetration, fellatio and cunnilingus, without consent in fact; the offending extended over seven years against the offender's de facto daughter, who was aged between 11 and 18 years; at times threats and violence were used; when she became pregnant the offender insisted she have an abortion).
(2) ARK v The State of Western Australia (12 years; nine counts, including five counts of penile/vaginal penetration; representative of a course of offending over about four years from when the complainant was about 11 years old; the offender was physically aggressive and used manipulation and intimidation to ensure the complainant's continued compliance with his demands).
(3)JJR (12 years; 10 counts, four of which were sexual penetration, including penile/vaginal penetration, fellatio and digital penetration; two complainants, one aged between 9 and 11 years and the other between 7 and 12 years; the offending extended over about seven years; the sentence of 12 years' imprisonment was described as 'undoubtedly severe').
(4)AIM (12 years; 13 counts, six of which were sexual penetration, including penile/vaginal penetration, fellatio and digital penetration; two complainants, one aged between 7 and 8 years, the other between 4 and 7 years; the offences were representative and extended for about three years against one complainant and about 20 months against the other).
(5)CJF v The State of Western Australia (12 years; six counts, four of which were sexual penetration, including penile/vaginal penetration and digital penetration; the offences were representative of ongoing sexual abuse occurring over an extended period commencing when the complainant was 9 years old; the offender used violence and threats).
(6)KSN v The State of Western Australia (12 years; 15 counts, 14 of which were sexual penetrations, including penile/vaginal penetration, penile/anal penetration, fellatio, cunnilingus and digital penetration; the offences were representative of offending over about four or five years against the complainant when she was aged between 11 or 12 and 16 years; the offender used threats, forceful behaviour, alcohol and cannabis to facilitate the sexual activity).
(7)SG v The State of Western Australia (12 years; 13 counts, 11 of which were sexual penetrations, including fellatio, digital penetration and penile/vaginal penetration, one of which resulted in pregnancy; the offending was representative of a course of conduct over four to five years while the complainant was aged between 11 and 16 years; the offender used bribery and promises together with intimidation and physical coercion to obtain sexual favours). (footnotes omitted)
In addition to the cases referred to we have also had regard to the sentences imposed in LYN v The State of Western Australia;[77] GHK v The State of Western Australia;[78] OTR [No 2]; LTT v The State of Western Australia;[79] NE v The State of Western Australia;[80] The State of Western Australia v AHD;[81] WRT v The State of Western Australia;[82] and AAE v The State of Western Australia.[83]
[77] LYN v The State of Western Australia [2019] WASCA 45.
[78] GHK v The State of Western Australia [2014] WASCA 19; (2014) 238 A Crim R 178.
[79] LTT v The State of Western Australia [2022] WASCA 31.
[80] NE v The State of Western Australia [2021] WASCA 172.
[81] The State of Western Australia v AHD [2021] WASCA 13.
[82] WRT v The State of Western Australia [2020] WASCA 68.
[83] AAE v The State of Western Australia [2024] WASCA 35.
From this review it is apparent that the total effective sentence imposed in the present case is not consistent with total effective sentences imposed in comparable cases. Whilst all comparisons have limitations, the offending in this case was broadly comparable to that in LJH, MHE and the cases included in MHE as referred to in these reasons at [101]. It should also be noted that the cases referred to in MHE involved sentences imposed after trial and thus the offenders in those cases can be contrasted with the appellant, who had the benefit of having pleaded guilty.
The sentencing judge considered that the present case could be distinguished from other cases on the basis of the number and nature of the aggravating factors. Regrettably, this was not a unique case. The aggravating factors here were significant, but they were not materially more serious than the aggravating factors in many of the other cases referred to. Indeed, in some of those cases, there were serious aggravating factors not present in this case, such as the use of physical violence, threats or intimidation, a high degree of depravity or the making of recordings of the abuse.
The total sentence imposed here is higher by a significant margin than many of the comparable cases referred to. Cases attracting a total sentence comparable to that imposed here involve offending that is more serious because of factors such as the number of offences, number of victims or the length of time over which the offending continued. The inconsistency between the sentence imposed here and those imposed in comparable cases is an indicator of implied error. Whilst there are always limitations in the use of comparable cases, the importance of consistency in sentencing cannot be understated.
Having regard to the seriousness of the offending taken as a whole, the aggravating factors in this case, the personal circumstances of the appellant, including his pleas of guilty, and the guidance afforded by comparable cases, we are of the view that the total effective sentence of 14 years' imprisonment breached the first limb of the totality principle. The total effective sentence was not proportionate to the overall offending. The total effective sentence was unreasonable or plainly unjust.
Conclusion
We would refuse leave to appeal on grounds 1 and 2. We would grant leave to appeal on ground 3, allow the appeal, and resentence the appellant.
Resentencing
The facts of the offending and the personal circumstances of the appellant have been set out in detail earlier in these reasons.
The appellant entered pleas of guilty prior to the pre‑recording of the complainant's evidence. This was significant in that it provided certainty and spared the complainant the further trauma that would no doubt have resulted from having to give evidence. However, the pleas were not entered at the first reasonable opportunity. The discount of 15% allowed at first instance is appropriate and should also be allowed on resentencing.
In our view, the appropriate total effective sentence is 11 years 6 months' imprisonment. We would achieve that by reducing the sentence on count 21 to18 months' imprisonment, for totality purposes only. The other sentences imposed by the primary judge and the orders for accumulation and concurrency should stand. The sentence should be backdated to 21 January 2021 and the appellant should be eligible for parole.
Orders
The orders are as follows:
1.Leave to appeal on grounds 1 and 2 is refused.
2.Leave to appeal on ground 3 is granted.
3.The appeal is allowed.
4. The sentence on count 21 on IND 106 of 2022 is set aside and in lieu thereof a sentence of 18 months' immediate imprisonment is imposed.
5.The total effective sentence of 11 years 6 months' imprisonment is backdated to commence on 21 January 2021.
6.The appellant is eligible for parole.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
MO
Research Associate to the Honourable Justice Hall
31 JULY 2024
15
1