PMY v The State of Western Australia
[2025] WASCA 113
•23 JULY 2025
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: PMY -v- THE STATE OF WESTERN AUSTRALIA [2025] WASCA 113
CORAM: MAZZA JA
VAUGHAN JA
HALL JA
HEARD: 8 APRIL 2025
DELIVERED : 23 JULY 2025
FILE NO/S: CACR 90 of 2024
BETWEEN: PMY
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram: PALMER DCJ
File Number : IND XXXX of XXXX
Catchwords:
Criminal law - Appeal against sentence - Intrafamilial child sexual offending - Appellant convicted on pleas of guilty of 40 counts of sexual offending against daughter - Appellant also convicted of five counts of possession of child exploitation material - Where victim subsequently became pregnant - Whether sentencing judge erred in allowing manifestly inadequate s 9AA Sentencing Act 1995 (WA) discount
Legislation:
Sentencing Act 1995 (WA), s 9AA
Result:
Leave to appeal granted on the single ground of appeal
Appeal allowed
Appellant resentenced
Category: B
Representation:
Counsel:
| Appellant | : | M R Gunning |
| Respondent | : | N Sinton |
Solicitors:
| Appellant | : | Gunning Young Barristers & Solicitors |
| Respondent | : | Director of Public Prosecutions (WA) |
Case(s) referred to in decision(s):
AAE v The State of Western Australia [2024] WASCA 35
JTR v The State of Western Australia [2023] WASCA 131
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
LTT v The State of Western Australia [2025] WASCA 19
LYN v The State of Western Australia [2019] WASCA 45
Merritt v The State of Western Australia [2019] WASCA 203
MHE v The State of Western Australia [2019] WASCA 133
Newton v The State of Western Australia [2023] WASCA 7
NI v The State of Western Australia [2020] WASCA 78
The State of Western Australia v BKJ [2018] WASCA 136
JUDGMENT OF THE COURT:
This is an appeal against sentence. The appellant was convicted on his early pleas of guilty of 45 counts, almost all of which involved sexual offending against his biological daughter, B.[1] On 2 August 2024, the appellant was sentenced in the District Court by Palmer DCJ to a total effective sentence of 14 years 6 months' imprisonment, backdated to commence on 28 March 2023. He was made eligible for parole.
[1] Not her real initial.
The appellant's charged offending against B began in 2019 and continued until about August 2022. During this time, B was aged between 11 and 14 years, while the appellant was aged between 34 and 39 years. The offending was detected in March 2023, when it was discovered that B was pregnant with the appellant's child. B gave birth to the child in April 2023. DNA testing confirmed that the appellant was the child's biological father.
Originally, the appellant relied on two grounds of appeal. At the hearing of the appeal, the appellant abandoned ground 2, which had, in effect, alleged that the total effective sentence infringed the first limb of the totality principle. Ground 1, in substance, alleges that the discount given by the sentencing judge of 10% for the pleas of guilty under s 9AA of the Sentencing Act 1995 (WA) was inadequate, having regard to the fact that the pleas were entered at the first reasonable opportunity and the utilitarian value of the pleas, particularly to the State and to B.
In our opinion, ground 1 has been made out and the appeal should be allowed. We would resentence the appellant to a total effective sentence of 12 years' imprisonment. Our reasons for these conclusions are as follows.
The facts
The facts of the offending are not in dispute. The charged offending against B took place over 14 separate incidents. Incidents 1 and 2 (counts 1 ‑ 3) were disclosed by B in her child witness interview. Incidents 3 ‑ 13 relate to offences which were video‑recorded by the appellant (counts 4 ‑ 39). Incident 14 (count 40) is the act of sexual penetration by the appellant that resulted in B becoming pregnant. Counts 41 ‑ 45 are offences of possession of child exploitation material, which was found on various electronic devices possessed by the appellant.
By way of background, B is the appellant's biological daughter. B was born in 2007 to the appellant and her mother, C. The appellant and C also have a second child, a boy, D. In 2010, the relationship between the appellant and C ended. They had shared custody of their children. The appellant had custody of the children on alternate weekends during the school term, and alternate weeks during the school holidays. It was not alleged that the appellant offended against D.
Incident 1 - count 1
On an unknown date between 31 December 2018 and 1 January 2020, B was sitting on the appellant's lap in the living room of his home. B rubbed her buttocks on the appellant's groin and felt his penis become erect. B began to touch the appellant's penis over his clothing. The appellant told her to stop, which she did.
Incident 2 - counts 2 and 3
On an unknown date between 31 December 2019 and 27 December 2020, the appellant and B were having a 'slumber party' at the appellant's home. The appellant sexually penetrated B by inserting his penis into her mouth (count 2). The appellant then sexually penetrated B by penetrating her vagina with his penis (count 3). After the offending, B went to sleep.
Incident 3 - counts 4 and 5
On 4 April 2020, when B was 12 years old, she and the appellant were in his bedroom. The appellant sexually penetrated her by inserting his penis into her vagina (count 4). The appellant video‑recorded this offence (count 5).
Incident 4 - counts 6 ‑ 9
On 26 July 2020, B was at the appellant's home. The appellant sexually penetrated B by performing cunnilingus on her (count 6). A short time later, the appellant digitally penetrated B's vagina (count 7). The appellant then kissed her on the mouth for a period of time (count 8). The appellant video‑recorded each of these offences (count 9). The recording goes for 5 minutes and 3 seconds. During the recording, B asked the appellant, 'Why are you recording it?'. The appellant responded, 'Why not?'.
Incident 5 - counts 10 ‑ 13
On 16 October 2020, B was at the appellant's home. The appellant sexually penetrated her by inserting his fingers into her vagina (count 10). The appellant then sexually penetrated B by inserting his penis into her vagina (count 11). The appellant then digitally penetrated B by inserting his finger into her vagina again (count 12). The appellant video‑recorded these offences (count 13). The recording is several minutes long and shows that B's singlet top has been pulled down to expose her breasts.
Incident 6 - counts 14 and 15
On 17 October 2020, B was at the appellant's home. The appellant sexually penetrated her by inserting his penis into her mouth (count 14). The appellant video‑recorded this offence (count 15).
Incident 7 - counts 16 ‑ 20
On 6 November 2021, B was in the appellant's bedroom at his home. The appellant sexually penetrated her by inserting a pink vibrating sex toy into her vagina (count 16). After a period of time, the appellant removed the vibrator and sexually penetrated B by inserting a finger into her vagina (count 17). The appellant then reinserted the vibrator into B's vagina (count 18).
Later that day, the appellant and B were in the shower together. B was wearing underwear. The appellant pulled her underwear down to briefly expose her vagina. He then touched her on the breasts and kissed her mouth (count 19). The appellant video‑recorded the offending the subject of counts 16 ‑ 19 (count 20).
Incident 8 - counts 21 and 22
On 13 March 2022, B was at the appellant's home. The appellant sexually penetrated her vagina with his fingers (count 21). The appellant video‑recorded this offence (count 22).
Incident 9 - counts 23 ‑ 26
On 20 April 2022, B was at the appellant's home. The appellant indecently dealt with her by touching her breasts with his hands (count 23). The appellant recorded the offending. In the recording, B said, 'Does that mean you're going to make me do the video?'. The appellant responded, 'I'll record it when you start doing it'. Throughout the recording, the appellant touched B's breasts and stroked her face. B's face is visible in the recording. The appellant then kissed her on the lips for a period of time (count 24). The appellant positioned B on top of him and sexually penetrated her by inserting his penis into her vagina (count 25). The appellant video‑recorded the offending the subject of counts 23 ‑ 25 (count 26).
Incident 10 - counts 27 and 28
On 22 April 2022, B was with the appellant at his home. The appellant sexually penetrated her by inserting his fingers into her vagina (count 27). The appellant video‑recorded this offence (count 28).
Incident 11 - counts 29 ‑ 32
On 23 April 2022, B was with the appellant at his home. The appellant indecently dealt with her by touching her pubic area and moving her underwear to the side to expose her vagina (count 29). B then got on top of the appellant. The appellant kissed her for a period of time (count 30). The appellant then, again, moved B's underwear to the side and touched her pubic region with his fingers (count 31). The appellant video‑recorded the offending the subject of counts 29 ‑ 31 (count 32). During the recording, B can be heard saying, 'You know you're just annoying me, right?', to which the appellant responded, 'You just want to fuck me, don't you?'.
Incident 12 - counts 33 ‑ 36
On 29 April 2022, B was at the appellant's home. The appellant lay on his back on the bed while B performed fellatio on him (count 33). The appellant then sexually penetrated her by inserting his penis into her vagina (count 34). The appellant then sexually penetrated B by inserting his fingers into her vagina (count 35). The appellant video‑recorded the offending the subject of counts 33 ‑ 35 (count 36). During the recording of count 34, the appellant can be heard saying, 'Good girl. Keep saying it'.
Incident 13 - counts 37 ‑ 39
On 19 May 2022, B was at the appellant's home. The appellant sexually penetrated B by inserting his penis into her mouth (count 37). The appellant then digitally penetrated B's vagina for a period of time (count 38). The appellant video‑recorded these offences (count 39). During the recording of count 38, the appellant's youngest son, D, walked into the room with a female child, which caused the offending to stop.
Incident 14 - count 40
On a date unknown between 1 July and 1 August 2022, the appellant sexually penetrated B by inserting his penis into her vagina until ejaculation (count 40). This act resulted in B becoming pregnant.
Possession of child exploitation material - counts 41 ‑ 45
Counts 41 ‑ 45 relate to child exploitation material found on various devices in the appellant's home after his arrest on 28 March 2023. The child exploitation material was found on an Apple iPhone 11, containing 26 images and 38 videos in category 1 and 31 images within category 2 (count 41); an Apple iPhone XR, containing 12 images in category 1 and 45 images in category 2 (count 42); an Apple iPad Pro, containing over 1,000 images and 110 videos in category 1 and over 500 images in category 2 (count 43); an Apple 5th generation iPad, containing over 1,000 images and 38 videos in category 1 and over 500 images in category 2 (count 44); and an Apple iPad Air 2, containing over 1,000 images in category 1 and over 500 images in category 2 (count 45). The child exploitation material the subject of counts 41 ‑ 45 included recordings and images of B.
Other events
In October or November 2022, B took a pregnancy test but did not know how to read the result. In January 2023, she realised she was pregnant. She spoke with the appellant about the pregnancy at that time and she perceived him to be excited by it.
In late January 2023, C asked B if she was pregnant. B confirmed that she was. At this point, C was unaware that the appellant was the father. B told her mother that the father of the unborn child was a boy named 'Jason'. The appellant told C that he was aware that B had a friend called Jason.
In February 2023, B's school reported the pregnancy to police.
On 27 March 2023, C spoke with B, who disclosed that the appellant was the father.
On 28 March 2023, B participated in a child witness interview. In that interview, she disclosed the offences the subject of counts 1 ‑ 3 and that she was 'about 30 weeks pregnant'. B also disclosed that she and the appellant had sex 'quite a lot', and that the last time it had occurred was about two weeks prior to the interview. The appellant was not charged with any offence arising from that incident.
On the same day, the appellant was arrested and interviewed by police. His mobile telephone was seized, and an examination of it revealed internet searches on 11 March 2023:
Can a mother refuse a paternity test Australia.
What does a fake DNA test look like?
How long can a drug test pick up meth.
Can police see deleted DMs?
Also on 11 March 2023, the appellant accessed an online news article entitled 'Man gaoled for fake DNA test to deny parentage of two sons'.
Details of the offences and the sentences that were imposed
The details of the offences committed by the appellant and the individual sentences that were imposed are set out in the table below.[2]
[2] Each offence alleged that B was 'a child who [the appellant] then knew to be his lineal relative' and that she 'was a child under the age of 16 years'.
| Count | Criminal Code Section | Description | Maximum sentence | Sentence imposed (imprisonment) |
| Incident 1 - count 1 | ||||
| 1 | 329(4) | On a date unknown between 31 December 2018 and 1 January 2020, the appellant indecently dealt with B by procuring her to touch his penis. | 10 years' imprisonment | 10 months' (concurrent) |
| Incident 2 - counts 2 and 3 | ||||
| 2 | 329(2), 329(9)(a) | On a date unknown between 31 December 2019 and 27 December 2020, the appellant sexually penetrated B by introducing his penis into her mouth. | 20 years' imprisonment | 4 years' (cumulative) |
| 3 | 329(2), 329(9)(a) | On the same date and at the same place as in Count (2) the appellant sexually penetrated B by penetrating her vagina with his penis. | 20 years' imprisonment | 5 years' (concurrent) |
| Incident 3 - counts 4 and 5 | |||||
| 4 | 329(2), 329(9)(a) | On 4 April 2020 the appellant sexually penetrated B by penetrating her vagina with his penis. | 20 years' imprisonment | 5 years' (concurrent) | |
| 5 | 329(6), 329(10)(a) | On the same date and at the same place as count (4), the appellant indecently recorded B by taking an indecent video of her. | 10 years' imprisonment | 12 months' (concurrent) | |
| Incident 4 - counts 6 ‑ 9 | |||||
| 6 | 329(2), 329(9)(a) | On 26 July 2020 the appellant sexually penetrated B by engaging in cunnilingus. | 20 years' imprisonment | 4 years' (concurrent) | |
| 7 | 329(2), 329(9)(a) | On the same date and at the same place as in count (6), the appellant sexually penetrated B by inserting a finger into her vagina. | 20 years' imprisonment | 3 years' (concurrent) | |
| 8 | 329(4), 329(10)(a) | On the same date and at the same place as in count (6), the appellant indecently dealt with B by kissing her on the mouth. | 10 years' imprisonment | 12 months' (concurrent) | |
| 9 | 329(6), 329(10)(a) | On the same date and at the same place as in count (6), the appellant indecently recorded B by taking an indecent video of her. | 10 years' imprisonment | 12 months' (concurrent) | |
| Incident 5 - counts 10 ‑ 13 | |||||
| 10 | 329(2), 329(9)(a) | On 16 October 2020, the appellant sexually penetrated B by inserting his finger into her vagina. | 20 years' imprisonment | 3 years' (concurrent) | |
| 11 | 329(2), 329(9)(a) | On the same date and at the same place as count (10) the appellant sexually penetrated B by penetrating her vagina with his penis. | 20 years' imprisonment | 5 years' (concurrent) | |
| 12 | 329(2), 329(9)(a) | On the same date and at the same place as count (10) the appellant sexually penetrated B by inserting his finger into her vagina. | 20 years' imprisonment | 3 years' (concurrent) | |
| 13 | 329(6), 329(10)(a) | On the same date and at the same place as in count (10), the appellant indecently recorded B by taking an indecent video of her. | 10 years' imprisonment | 18 months' (concurrent) | |
| Incident 6 - counts 14 and 15 | |||||
| 14 | 329(2), 329(9)(a) | On 17 October 2020, the appellant sexually penetrated B by introducing his penis into her mouth. | 20 years' imprisonment | 4 years' (concurrent) | |
| 15 | 329(6), 329(10)(a) | On the same date and at the same place as in count (14), the appellant indecently recorded B by taking an indecent video of her. | 10 years' imprisonment | 12 months' (concurrent) | |
| Incident 7 - counts 16 ‑ 20 | |||||
| 16 | 329(2), 329(9)(a) | On 6 November 2021, the appellant sexually penetrated B by penetrating her vagina with a vibrator. | 20 years' imprisonment | 3 years' (concurrent) | |
| 17 | 329(2), 329(9)(a) | On the same date and at the same place as in count (16), the appellant sexually penetrated B by inserting his finger into her vagina. | 20 years' imprisonment | 3 years' (concurrent) | |
| 18 | 329(2), 329(9)(a) | On the same date and at the same place as in count (16) the appellant sexually penetrated B by again penetrating her vagina with a vibrator. | 20 years' imprisonment | 3 years' (cumulative) | |
| 19 | 329(4), 329(10)(a) | On the same date and at the same place as in count (16), the appellant indecently dealt with B by kissing her on the mouth. | 10 years' imprisonment | 18 months' (concurrent) | |
| 20 | 329(6), 329(10)(a) | On the same date and at the same place as in count (16), the appellant indecently recorded B by taking an indecent video of her. | 10 years' imprisonment | 12 months' (concurrent) | |
| Incident 8 - counts 21 and 22 | |||||
| 21 | 329(2), 329(9)(a) | On 13 March 2022, the appellant sexually penetrated B by inserting his finger into her vagina. | 20 years' imprisonment | 3 years' (concurrent) | |
| 22 | 329(6), 329(10)(a) | On the same date and at the same place as in count (21), the appellant indecently recorded B by taking an indecent video of her. | 10 years' imprisonment | 12 months' (concurrent) | |
| Incident 9 - counts 23 ‑ 26 | |||||
| 23 | 329(4), 329(10)(a) | On 20 April 2022, the appellant indecently dealt with B by touching her breasts with his hand. | 10 years' imprisonment | 12 months' (concurrent) | |
| 24 | 329(4), 329(10)(a) | On the same date and at the same place as in count (23), the appellant indecently dealt with B by kissing her on the mouth. | 10 years' imprisonment | 12 months' (concurrent) | |
| 25 | 329(2), 329(9)(a) | On the same date and at the same place as count (23) the appellant sexually penetrated B by penetrating her vagina with his penis. | 20 years' imprisonment | 5 years' (concurrent) | |
| 26 | 329(6), 329(10)(a) | On the same date and at the same place as in count (23), the appellant indecently recorded B by taking an indecent video of her. | 10 years' imprisonment | 12 months' (concurrent) | |
| Incident 10 - counts 27 and 28 | |||||
| 27 | 329(2), 329(9)(a) | On 22 April 2022, the appellant sexually penetrated B by inserting his finger into her vagina. | 20 years' imprisonment | 3 years' (concurrent) | |
| 28 | 329(6), 329(10)(a) | On the same date and at the same place as in count (27), the appellant indecently recorded B by taking an indecent video of her. | 10 years' imprisonment | 12 months' (concurrent) | |
| Incident 11 - counts 29 ‑ 32 | |||||
| 29 | 329(4), 329(10)(a) | On 23 April 2022 the appellant indecently dealt with B by touching her pubic area with his fingers. | 10 years' imprisonment | 18 months' (concurrent) | |
| 30 | 329(4), 329(10)(a) | On the same date and at the same place as in count (29), the appellant indecently dealt with B by kissing her on the mouth. | 10 years' imprisonment | 12 months' (concurrent) | |
| 31 | 329(4), 329(10)(a) | On the same date and at the same place as in count (29), the appellant indecently dealt with B by again touching her pubic area with his fingers. | 10 years' imprisonment | 18 months' (concurrent) | |
| 32 | 329(6), 329(10)(a) | On the same date and at the same place as in count (29), the appellant indecently recorded B by taking an indecent video of her. | 10 years' imprisonment | 12 months' (cumulative) | |
| Incident 12 - counts 33 ‑ 36 | |||||
| 33 | 329(2), 329(9)(a) | On 29 April 2022 the appellant sexually penetrated B by introducing his penis into her mouth. | 20 years' imprisonment | 4 years' (concurrent) | |
| 34 | 329(2), 329(9)(a) | On the same date and at the same place as in count (33), the appellant sexually penetrated B by penetrating her vagina with his penis. | 20 years' imprisonment | 5 years' (concurrent) | |
| 35 | 329(2), 329(9)(a) | On the same date and at the same place as in count (33), the appellant sexually penetrated B by inserting a finger into her vagina. | 20 years' imprisonment | 3 years' (concurrent) | |
| 36 | 329(6), 329(10)(a) | On the same date and at the same place as in count (33), the appellant indecently recorded B by taking an indecent video of her. | 10 years' imprisonment | 12 months' (concurrent) | |
| Incident 13 - counts 37 ‑ 39 | |||||
| 37 | 329(2), 329(9)(a) | On 19 May 2022 the appellant sexually penetrated B by introducing his penis into her mouth. | 20 years' imprisonment | 4 years' (concurrent) | |
| 38 | 329(2), 329(9)(a) | On the same date and at the same place as count (37), the appellant sexually penetrated B by inserting his finger into her vagina. | 20 years' imprisonment | 3 years' (concurrent) | |
| 39 | 329(6), 329(10)(a) | On the same date and at the same place as in count (37), the appellant indecently recorded B by taking an indecent video of her. | 10 years' imprisonment | 12 months' (concurrent) | |
| Incident 14 - count 40 | |||||
| 40 | 329(2), 329(9)(a) | On a date unknown between 1 July 2022 and 1 August 2022, the appellant sexually penetrated B by penetrating her vagina with his penis. | 20 years' imprisonment | 5 years 6 months' (head sentence) | |
| Child exploitation material offences | |||||
| 41 | 220 | On 28 March 2023 the appellant had possession of child exploitation material, namely photographs and videos on an Apple iPhone 11. | 7 years' imprisonment | 8 months' (concurrent) | |
| 42 | 220 | On 28 March 2023 the appellant had possession of child exploitation material, namely photographs and videos on an Apple iPhone XR. | 7 years' imprisonment | 6 months' (concurrent) | |
| 43 | 220 | On 28 March 2023 the appellant had possession of child exploitation material, namely photographs and videos on an Apple iPad Pro. | 7 years' imprisonment | 12 months' (cumulative) | |
| 44 | 220 | On 28 March 2023 the appellant had possession of child exploitation material, namely photographs and videos on an Apple iPad 5th Generation. | 7 years' imprisonment | 12 months' (concurrent) | |
| 45 | 220 | On 28 March 2023 the appellant had possession of child exploitation material, namely photographs and videos on an Apple iPad Air 2. | 7 years' imprisonment | 12 months' (concurrent) | |
| Total effective sentence | 14 years 6 months' imprisonment, with parole eligibility, backdated to commence on 28 March 2023. | ||||
In all, the appellant was convicted of eight counts of indecent dealing with a child, whom he knew to be his lineal relative, contrary to s 329(4) of the Criminal Code (WA) (the Code); 21 counts of sexual penetration of a child whom he knew to be a lineal relative, contrary to s 329(2) of the Code; 11 counts of indecently recording a child whom he knew to be a lineal relative, contrary to s 329(6) of the Code; and five counts of possession of child exploitation material, contrary to s 322 of the Code.
The appellant's pleas of guilty
On 29 March 2023, the day after he was arrested, the appellant entered pleas of guilty in the Magistrates Court to charges which later became counts 1, 2, 5, 40 and 41 on the indictment. Later, the appellant was charged with further offences, which became counts 4, 6 ‑ 8, 10 ‑ 12, 16 ‑ 19, 21, 23 ‑ 25, 27, 29 ‑ 31, 33 ‑ 35, 37 ‑ 38 and 43 on the indictment. On 23 June 2023, the appellant entered pleas of guilty to these charges in the Magistrates Court, and they were committed to the District Court for sentencing.
On 11 January 2024, the State filed an indictment in the District Court with an additional 14 ex officio counts, being counts 3, 9, 13, 15, 20, 22, 26, 28, 32, 36, 39, 42, 44 and 45.
On 25 July 2024, the appellant was arraigned and pleaded guilty to all 45 counts.
As mentioned, the respondent did not dispute in the sentencing hearing (and does not dispute in this court) that the appellant entered his pleas of guilty at the first reasonable opportunity under s 9AA of the Sentencing Act. In this circumstance, under s 9AA the sentencing judge's discretion to give a discount for the pleas of guilty of up to 25% was enlivened.
In respect of the appellant's pleas of guilty, his Honour said:[3]
You have pled guilty on the fast‑track system. Those pleas, as I've mentioned, have resulted in a trial being avoided which is to the benefit of the State in addition to both [B] and any witnesses who would otherwise have been required to attend trial.
The prosecution has submitted that the prosecution case was overwhelmingly strong in this case because you recorded your offending and your daughter gave birth to your child. That said, without your plea of guilty, it might well have been necessary for your daughter to give evidence in relation to those offences which were not recorded and I bear that in mind.
In accordance with the provisions of section 9AA of the Sentencing Act, I would allow - have allowed a discount to your sentence by 10 per cent from the head sentence I would otherwise have imposed on you had you been found guilty of the offence after the trial and there were no mitigating factors.
[3] ts 75.
Although his Honour did not say so in terms, it is clear from his reference to the plea of guilty on the fast‑track system and, having regard to the sentencing submissions of the parties, that his Honour assessed the discount under s 9AA on the basis that the pleas of guilty had been entered at the first reasonable opportunity. It also appears that one of the considerations in his Honour's assessment of the discount under s 9AA was the strength of the prosecution case against the appellant.
Section 9AA of the Sentencing Act
Section 9AA of the Sentencing Act is in these terms:
Plea of guilty, sentence may be reduced in case of
(1)In this section ‑
fixed term has the meaning given in section 85(1);
head sentence, for an offence, means the sentence that a court would have imposed for the offence if ‑
(a)the offender had been found guilty after a plea of not guilty; and
(b)there were no mitigating factors;
victim has the meaning given in section 13.
(2)If a person pleads guilty to a charge for an offence, the court may reduce the head sentence for the offence in order to recognise the benefits to the State, and to any victim of or witness to the offence, resulting from the plea.
(3)The earlier in the proceedings the plea is made, the greater the reduction in the sentence may be.
(4)If the head sentence for an offence is or includes a fixed term, the court must not reduce the fixed term under subsection (2) ‑
(a)by more than 25%; or
(b)by 25%, unless the offender pleaded guilty, or indicated that he or she would plead guilty, at the first reasonable opportunity.
(5)If a court reduces the head sentence for an offence under subsection (2), the court must state that fact and the extent of the reduction in open court.
(6)This section does not prevent the court from reducing the head sentence for an offence because of any mitigating factor other than a plea of guilty.
The general principles relating to the application of s 9AA have been considered and stated in numerous previous cases decided by this court. For present purposes it is enough to repeat the statement of general principles made by this court in NI v The State of Western Australia:[4]
[4] NI v The State of Western Australia [2020] WASCA 78 [62] ‑ [68].
Under s 9AA(2), if a person pleads guilty to a charge for an offence, the court may reduce the 'head sentence' for the offence. The head sentence for this purpose is the sentence that a court would have imposed if the offender had been found guilty after a plea of not guilty and there were no mitigating factors. The court may reduce the head sentence:
'[I]n order to recognise the benefits to the State, and to any victim of or witness to the offence, resulting from the plea.'
These utilitarian considerations exhaustively state the matters to be taken into account in determining the extent of any discount under s 9AA for a plea of guilty.
The benefits to the State which may result from a plea would ordinarily include the matters in the following non‑exhaustive list:
(a) securing the conviction of a person who has committed a criminal offence;
(b) the Office of the Director of Public Prosecutions (WA) not having to use resources in the preparation and conduct of a criminal trial;
(c) if the accused has been or would otherwise have been granted legal aid, the Legal Aid Commission (WA) not having to use resources in the preparation and conduct of a defence;
(d) avoiding the time and expense involved in summoning and empanelling jurors for a criminal trial; and
(e) the more expeditious and efficient resolution of proceedings in the criminal justice system than would otherwise be the case.
Section 9AA(3) provides that, the earlier in the proceedings the plea is made, the greater the reduction in sentence may be. Under s 9AA(4)(a), where (as is the case here) the head sentence is a fixed term, as defined by s 9AA(1), the court must not reduce the fixed term by more than 25%. Further, the court must not reduce the fixed term by 25% unless the offender pleaded guilty, or indicated that he or she would plead guilty, at the first reasonable opportunity.
A sentencing judge is not bound to allow a discount of 25% whenever the offender pleads guilty at the first reasonable opportunity. Rather, a sentencing judge has a discretion in deciding upon the discount to be given in each case. This recognises that the nature, character and extent of the benefits referred to in s 9AA may vary across particular cases where the offender has pleaded guilty at the first reasonable opportunity.
The strength of the prosecution case can be taken into account in assessing the amount of the discount under s 9AA. This is because the strength of the prosecution case is directly relevant to the prospects of securing a conviction, and therefore the value of the benefit to the State of the kind identified … above. The strength of the prosecution case may also affect the length of a trial and the legal resources it requires, although this will not always be the case.
However, as Buss P and Mazza JA noted in Winmar v The State of Western Australia, in evaluating the appropriate discount to be given under s 9AA it is important to bear in mind the underlying purpose or object of the provision. As Mazza JA and Hall J observed in Gobetti v The State of Western Australia:
'It is important to always bear in mind the underlying purpose of allowing and quantifying a discount for a plea of guilty. The purpose is to encourage those who are guilty to enter their pleas at the earliest possible stage, and thereby maximise the benefits of those pleas to the State and any victims or witnesses. Discounts act not merely as a reward to the individual, but as an encouragement to others. Too parsimonious an approach to the awarding of a discount may discourage others from entering a plea of guilty. Even when the prosecution case is overwhelming a discount should be given to ensure that accused persons do not view the entering of a plea of guilty as being pointless.'
In order to impugn the exercise of the sentencing judge's discretion under s 9AA, the appellant must show either that the sentencing judge made an express material error of principle, or that error is to be inferred from a result of the exercise of the discretion which is unreasonable or plainly unjust. (footnotes omitted)
The utilitarian considerations in s 9AA(2) refer not only to the benefits to the State but also to any victim of the offence. In this case, the benefits to B were an important consideration. In cases of sexual abuse the trauma experienced by victims is often compounded by the prospect of being required to give evidence should the matter proceed to trial. Giving evidence does not just involve testifying at a pre‑recording or at the trial. It also involves participation in the investigation of the offence and the preparation leading up to the giving of evidence. In both the investigative and preparation phases, the victim will inevitably be required to recall and thus relive the events. For many victims, the criminal justice system moves too slowly and the preparation phase is prolonged. While objectively a prosecution case may be strong, even very strong, for victims there often remains an element of uncertainty about the verdict. The earlier a plea of guilty is entered the earlier the victim will be vindicated and the journey to recovery may begin.[5]
[5] See the observations in LYN v The State of Western Australia [2019] WASCA 45 [51].
Appellant's submissions
Counsel for the appellant, Mr Gunning, emphasised that the appellant had at no stage denied his guilt. He pleaded guilty to all of the offences at the first reasonable opportunity, including on the day after his arrest. While the State's case against the appellant was undoubtedly very strong, having regard to the fact that other than counts 1, 2 and 3, the offences were recorded (counts 4 ‑ 39), or were confirmed by DNA evidence (count 40) or, in the child exploitation material counts (counts 41 ‑ 45) the relevant material was found on devices he possessed, there was nevertheless a considerable utilitarian value to the State in the guilty pleas. Mr Gunning submitted that, even in the face of an overwhelming case, some accused will still plead not guilty and put the State to proof. Mr Gunning observed that the State's case with respect to counts 1, 2 and 3 would have required B to testify had the appellant not entered pleas of guilty. He submitted that it was in the interests of justice to provide an incentive to an accused, when confronted with a strong case, to plead guilty early.
Mr Gunning also contended that, while the strength of the State case is a relevant consideration in the assessment of the discount to be given under s 9AA, it was also necessary to have regard to the benefits to B. Mr Gunning submitted that the benefits to B of the appellant's early pleas were particularly important because they obviated the need for B to prepare to testify at a pre‑recording or a trial, and they provided (almost immediate) certainty of verdict.
Mr Gunning submitted that a s 9AA discount of 10% in circumstances where the pleas of guilty were entered at the first reasonable opportunity, and were a very considerable benefit to the victim, was manifestly inadequate, and would provide little incentive for an offender when faced with an overwhelming State case to enter a plea of guilty at an early stage in the proceedings.
Mr Gunning asserted that there was no case decided by this court where an appellant who had entered a plea of guilty at the first reasonable opportunity had been given only a 10% reduction under s 9AA.
The respondent's submissions
Ms Sinton, on behalf of the respondent, accepted that she was unaware of any case where an offender having entered a plea of guilty at the first reasonable opportunity was afforded a discount of only 10% under s 9AA. Ms Sinton accepted that the discount imposed in the present case was very low but, having regard to the overwhelming strength of the prosecution case against the appellant, was not so low as to be unreasonable or plainly unjust.
Disposition
In our opinion the ground of appeal has been made out.
The appellant entered each of his pleas at the first reasonable opportunity. Accordingly, the sentencing judge's discretion to give the maximum discount allowable under s 9AA was enlivened.
The extent of any discount under s 9AA is informed by the utilitarian purposes in s 9AA(2). We accept that the State's case against the appellant in respect of counts 4 ‑ 45 was very strong given that the offending the subject of counts 4 ‑ 39 was video‑recorded, count 40 was confirmed by the DNA analysis, and the child exploitation material the subject of counts 41 ‑ 45 was found on devices belonging to the appellant. The State's case in respect of counts 1 ‑ 3, while not as strong as counts 4 ‑ 45, was nevertheless strong, particularly as it would have been bolstered by propensity evidence which relied upon the events the subject of at least, counts 4 ‑ 40 and possibly involving counts 41 ‑ 45. Nevertheless, had the State wished to prove counts 1 ‑ 3 (which involved allegations of sexual penetration), B would likely have had to testify. B may also have had to testify in respect of counts 4 ‑ 39 to identify herself or the appellant in the video‑recordings, or to clarify the events depicted.
It is necessary to bear in mind that one of the statutory purposes of a s 9AA discount is to provide an obvious incentive to an accused person to plead guilty early. It is not unknown for persons accused of offences, when faced with an overwhelming prosecution case, to nevertheless plead not guilty. Alternatively, when faced with an overwhelming prosecution case with the inevitable prospect of imprisonment, some accused will delay entering their plea of guilty to the last moment before trial to take advantage of the freedom that they have been afforded by a grant of bail, or in the forlorn hope that somehow the case will go away, perhaps because the complainant will not wish to cooperate with the prosecution.
It might also be possible that someone in the appellant's position might seek to defend the case by suggesting that the video footage did not identify him as the offender, or at least put the State to proof on the issue, or by suggesting that the footage did not show or clearly show the alleged offending.
Although we accept that the utilitarian value to the State of the appellant's pleas of guilty was diminished by the strength of the State's case, the benefits to the victim of the early guilty pleas is a matter to be given substantial weight. By pleading guilty at the first reasonable opportunity, the appellant spared B the additional trauma of the uncertainty of knowing what the outcome of the charges would be, the necessity of preparing to give evidence, and then the process of actually having to give evidence against the appellant.
In addition to the benefits to B, the appellant's pleas of guilty saved the State the cost of a trial and saved a jury, had the appellant pleaded not guilty, the trauma of having to view the video evidence.
We have not been able to find any case of sexual offending against children where a discount as low as 10% has been given, or upheld, where an offender has pleaded guilty at the first reasonable opportunity. Even in cases where the case against the offender was strong, or very strong, pleas of guilty entered at the first reasonable opportunity have attracted discounts of 25% or thereabouts. See, for example, LJH v The State of Western Australia[6] (20%); The State of Western Australia v BKJ[7] (25%); MHE v The State of Western Australia[8] (25%); LTT v The State of Western Australia[9] (25%); Newton v The State of Western Australia[10] (25%); JTR v The State of Western Australia[11] (25%); and AAE v The State of Western Australia[12] (20%). By contrast, a s 9AA discount of 10% has been given in cases where the appellant has entered a late (or very late) guilty plea: see, for example, Merritt v The State of Western Australia[13] (10%); and LTT v The State of Western Australia (10%).[14]
[6] LJH v The State of Western Australia [2016] WASCA 155; (2016) 261 A Crim R 355.
[7] The State of Western Australia v BKJ [2018] WASCA 136.
[8] MHE v The State of Western Australia [2019] WASCA 133.
[9] LTT v The State of Western Australia [2022] WASCA 31.
[10] Newton v The State of Western Australia [2023] WASCA 7.
[11] JTR v The State of Western Australia [2023] WASCA 131.
[12] AAE v The State of Western Australia [2024] WASCA 35.
[13] Merritt v The State of Western Australia [2019] WASCA 203.
[14] LTT v The State of Western Australia [2025] WASCA 19.
In all of the facts and circumstances of this case, the 10% s 9AA discount imposed by the sentencing judge was, in our opinion, unreasonable or plainly unjust. The ground of appeal has been made out.
In our opinion, the appellant must be resentenced in respect of all of the offences. As will be seen, we would resentence the appellant to different individual sentences and to a different total effective sentence.
Resentencing
This court has all of the materials necessary to resentence the appellant.
We will not repeat the facts and circumstances of the offending.
The appellant was 40 years old at the time of sentencing. He was aged between 34 and 39 years at the time of the offending. The appellant was adopted at the age of 2 years, but is now estranged from his adoptive family. This is through no fault on his part. The appellant was the subject of sexual abuse when he was 8 years old. Although he informed his mother about the abuse, he was not properly supported.
The appellant encountered difficulties at school. He has dyslexia and was bullied.
He has worked in various capacities, including, in the two years prior to his arrest, as a forklift driver.
The appellant has suffered from depression. He has used illicit drugs, including methylamphetamine, to dull the effects of this condition. The appellant has a minor criminal record for driving offences and property damage.
The sentencing judge was provided with a letter written by the appellant, in which he expressed his remorse for his offending. He has had some counselling while in prison. In the letter, he expressed apologies for his conduct. He explained his offending by stating that he had grown up without a moral compass, and with a sense of ethical ambivalence. Neither the sentencing judge nor this court were provided with a pre‑sentence report or a psychological report. The sentencing judge considered that the appellant's offending and collection of child exploitation material suggested that he has a sexual interest in children.
The sentencing judge was provided with a victim impact statement written by C. It is unnecessary to recount in detail the contents of the statement. It is enough to say that the offending has had a profound negative effect upon B. B has given birth to the appellant's child. She has been deprived of a normal childhood. Unsurprisingly, her mental health has been badly affected. The consequences of the appellant's offending are likely to be lifelong.
There are a number of aggravating factors. The offending involved a grave betrayal of parental trust. B was young and vulnerable. The offending persisted over a period of about four years, and became normalised. It continued after the appellant discovered that B was pregnant, and only stopped when it was found that the appellant was the father of his daughter's unborn child.
The offending was brazen. Sometimes, it occurred when there were other children in the house. On one occasion, it occurred when there were other children in the room.
The appellant engaged in penile/vaginal penetration of B without wearing a condom, thus exposing her to any sexually transmitted disease that he may have had, and exposing B to the risk of pregnancy, which eventuated. When the appellant found out about B's pregnancy, he did not help or support her, or attempt to provide prenatal care. Instead, he sought to conceal his reponsibility.
The only mitigating factor of significance was the appellant's pleas of guilty, which, as we have already explained, were entered at the first reasonable opportunity. Although entered in the face of an extremely strong prosecution case, especially in respect of counts 4 ‑ 45, his pleas benefitted the State and, significantly in our view, B. All of the pleas of guilty were entered at the first reasonable opportunity.
In our opinion, the appropriate s 9AA discount for counts 1, 2 and 3 is 22%, and 20% for the remaining counts. We have differentiated between each of counts 1, 2 and 3, on the one hand, and the remaining counts, on the other, because, as strong as the State's case was in relation to all of the counts, counts 1, 2 and 3 were slightly weaker, having regard to the fact that they were not video‑recorded.
There is some mitigation in the appellant's difficult childhood, including his dyslexia, bullying at school, and sexual abuse. We have also had regard to the efforts the appellant has made towards his rehabilitation.
While all of these personal matters are not to be ignored, having regard to the need for general and personal deterrence, they are not matters which can be given great weight.
Having regard to all relevant facts and circumstances, we would resentence the appellant to the following terms of imprisonment:
Count 18 months
Count 23 years 6 months
Count 34 years 6 months
Count 44 years 8 months
Count 510 months
Count 63 years 8 months
Count 72 years 10 months
Count 89 months
Count 910 months
Count 102 years 10 months
Count 114 years 8 months
Count 122 years 10 months
Count 1310 months
Count 143 years 8 months
Count 1510 months
Count 162 years 10 months
Count 172 years 10 months
Count 182 years 10 months
Count 199 months
Count 2010 months
Count 212 years 10 months
Count 2210 months
Count 239 months
Count 249 months
Count 254 years 8 months
Count 2610 months
Count 272 years 10 months
Count 2810 months
Count 299 months
Count 309 months
Count 319 months
Count 3210 months
Count 333 years 8 months
Count 344 years 8 months
Count 352 years 10 months
Count 3610 months
Count 373 years 8 months
Count 382 years 10 months
Count 3910 months
Count 405 years 2 months
Count 417 months
Count 425 months
Count 4310 months
Count 4410 months
Count 4510 months
The first limb of the totality principle must be applied. In our opinion, the appropriate total effective sentence is 12 years' imprisonment. To achieve this, we would order that the sentences on counts 3, 23, 29, 39 and 40 be served cumulatively upon each other. Each other sentence is to be served concurrently with the sentence imposed on count 40. The sentence is backdated to commence on 28 March 2023, and the appellant remains eligible for parole. The lifetime restraining order made by the sentencing judge remains in force.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
LF
Research Associate to the Honourable Justice Mazza
23 JULY 2025
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