RGT v The State of Western Australia - [2017] WASCA 120

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE COURT OF APPEAL (WA)

CITATION: RGT -v- THE STATE OF WESTERN AUSTRALIA [2017] WASCA 120

CORAM: BUSS P
NEWNES JA
MAZZA JA

HEARD: 13 MARCH 2017

DELIVERED : 29 JUNE 2017

FILE NO/S: CACR 117 of 2016
CACR 118 of 2016

BETWEEN: RGT
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent

ON APPEAL FROM:
Jurisdiction              :  DISTRICT COURT OF WESTERN AUSTRALIA
Coram  :O'NEAL DCJ
File No  :IND 43 of 2015, IND 44 of 2015

Catchwords:

Criminal law - Appeals against sentence - Sexual penetration of de facto child - Indecent dealing with child over 13 years and under 16 years - Sexual penetration of child over 13 years and under 16 years - Sexual penetration of lineal relative who was a child under 16 years - Indecent dealing with lineal relative who was a child under 16 years - Indecent recording of lineal relative under 16 years - Where appellant charged and sentenced on two separate indictments - Guilty pleas - Whether total effective sentence imposed on each separate indictment infringed the first limb of the totality principle - Where sentences imposed were partially concurrent - Whether sentencing judge erred in describing offending as in the worst category - Whether overall total effective sentence of 19 years' imprisonment infringed the first limb of the totality principle

Legislation:

Nil

Result:

CACR 117 of 2016:
Application for extension of time granted
Leave to appeal on ground 2 granted
Appeal allowed

CACR 118 of 2016:
Application for extension of time granted
Appeal allowed

Category: B

Representation:

Counsel:

Appellant: Ms K J Farley SC & Ms N R Sinton
Respondent: Mr J A Scholz

Solicitors:

Appellant: Legal Aid (WA)
Respondent: Director of Public Prosecutions (WA)

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

B v The Queen [2002] WASCA 236
ERA v The State of Western Australia [2013] WASCA 163
EXF v The State of Western Australia [2015] WASCA 118
Fernandes v The State of Western Australia [2009] WASCA 227
FWB v The State of Western Australia [2016] WASCA 118
GHK v The State of Western Australia [2014] WASCA 19; (2014) 238 A Crim R 178
GHS v The State of Western Australia [2006] WASCA 42
House v The King [1936] HCA 40; (1936) 55 CLR 499
KMB v The State of Western Australia [2010] WASCA 212
Lewsam v The State of Western Australia [2016] WASCA 60
LJH v The State of Western Australia [2016] WASCA 155
MAS v The State of Western Australia [2012] WASCA 36
MMC v The State of Western Australia [2012] WASCA 187
NHT v The State of Western Australia [2016] WASCA 167
R v Kilic [2016] HCA 48; (2016) 91 ALJR 131
Roffey v The State of Western Australia [2007] WASCA 246
SWD v The State of Western Australia [2012] WASCA 76
The State of Western Australia v Akizuki [2008] WASCA 267; (2008) 192 A Crim R 373
The State of Western Australia v BLM [2009] WASCA 88; (2009) 40 WAR 414
VIM v The State of Western Australia [2005] WASCA 233; (2005) 31 WAR 1
Woods v The Queen (1994) 14 WAR 341

REASONS OF THE COURT: These appeals against sentence (CACR 117 of 2016 and CACR 118 of 2016), which were heard together, concern sentences imposed on the appellant in the District Court in respect of offences contained in two indictments: indictment 43 of 2015 and indictment 44 of 2015.
Indictment 43 of 2015 charged the appellant with two counts of sexually penetrating his de facto child, contrary to s 329(2) of the Criminal Code (WA); three counts of indecently dealing with a child of or over the age of 13 years and under the age of 16 years, contrary to s 321(4) of the Criminal Code and two counts of sexually penetrating a child of or over the age of 13 years and under the age of 16 years, contrary to s 321(2) of the Criminal Code. These offences concerned two victims. The first was his de facto child, a boy named K, who at the relevant time was aged between 7 and 9 years. The second child was a girl named F. F was aged 13 years.
Indictment 44 of 2015 charged the appellant with 22 offences: 12 counts of sexually penetrating a lineal relative who was a child under the age of 16 years, contrary to s 329(2) of the Criminal Code; three counts of indecently dealing with a lineal relative, being a child under the age of 16 years, contrary to s 329(4) of the Criminal Code and seven counts of indecently recording a lineal relative who was under the age of 16 years, contrary to s 329(6) of the Criminal Code. The victim of these offences was the appellant's two‑year‑old daughter, A.
The appellant entered a fast‑track plea of guilty to the offences in indictment 44 of 2015. On 22 September 2015, O'Neal DCJ imposed a total effective sentence of 16 years' imprisonment backdated to commence on 23 December 2014. The appellant was made eligible for parole.[1]
[1] Transcript, 22 September 2015, 29.
At a later date, the appellant pleaded guilty after a committal mention date to the offences the subject of indictment 43 of 2015. On 16 May 2016, he was sentenced in respect of these offences by O'Neal DCJ to a total effective sentence of 9 years' imprisonment, to be served partially concurrently with the sentences he received on indictment 44 of 2015, with eligibility for parole. These sentences were ordered to commence after the appellant had served 10 years of the earlier sentence on 23 December 2024. When the sentences on the two indictments are taken together, the overall total effective sentence imposed upon the appellant is 19 years' imprisonment to commence on 23 December 2014 with eligibility for parole.[2] The details of the sentences imposed (including the maximum penalty for each offence) are set out below.
[2] Transcript, 16 May 2016, 28 ‑ 29.

Indictment number	Count/charge	Offence	Maximum penalty	Sentence/ outcome
44/2015	Count 1 BU 1593/2015	Knowingly sexually penetrated a child who was a lineal/de facto relative under the age of 16 years, s 329(2)	20 years' imprisonment	8 years' imprisonment Cumulative Head sentence
44/2015	Count 2 BU 1594/2015	Indecently recorded a child who was a lineal relative under the age of 16 years, s 329(6)	10 years' imprisonment	3 years' imprisonment Concurrent
44/2015	Count 3 BU 1595/2015	Indecently recorded a child who was a lineal relative under the age of 16 years, s 329(6)	10 years' imprisonment	3 years' imprisonment Concurrent
44/2015	Count 4 BU 1596/2015	Knowingly sexually penetrated a child who was a lineal/de facto relative under the age of 16 years, s 329(2)	20 years' imprisonment	8 years' imprisonment Concurrent
44/2015	Count 5 BU 1597/2015	Indecent dealing with a child who is a lineal/ de facto relative under the age of 16 years, s 329(4)	10 years' imprisonment	4 years' imprisonment Concurrent
44/2015	Count 6 BU 1598/2015	Knowingly sexually penetrated a child who was a lineal/de facto relative under the age of 16 years, s 329(2)	20 years' imprisonment	8 years' imprisonment Concurrent
44/2015	Count 7 BU 1599/2015	Knowingly sexually penetrated a child who was a lineal/de facto relative under the age of 16 years, s 329(2)	20 years' imprisonment	8 years' imprisonment Concurrent
44/2015	Count 8 BU 1600/2015	Knowingly sexually penetrated a child who was a lineal/de facto relative under the age of 16 years, s 329(2)	20 years' imprisonment	10 years' imprisonment Concurrent
44/2015	Count 9 BU 1601/2015	Indecently recorded a child who was a lineal relative under the age of 16 years, s 329(6)	10 years' imprisonment	3 years' imprisonment Concurrent
44/2015	Count 10 BU 1602/2015	Knowingly sexually penetrated a child who was a lineal/de facto relative under the age of 16 years, s 329(2)	20 years' imprisonment	10 years' imprisonment Concurrent
44/2015	Count 11 BU 1603/2015	Indecently dealt with a child who is a lineal/ de facto relative under the age of 16 years, s 329(4)	10 years' imprisonment	5 years' imprisonment Concurrent
44/2015	Count 12 BU 1604/2015	Indecently recorded a child who was a lineal relative under the age of 16 years, s 329(6)	10 years' imprisonment	3 years' imprisonment Concurrent
44/2015	Count 13 BU 6822/2014	Knowingly sexually penetrated a child who was a lineal/de facto relative under the age of 16 years, s 329(2)	20 years' imprisonment	8 years' imprisonment Concurrent
44/2015	Count 14 BU 6823/2014	Indecently dealt with a child who is a lineal/ de facto relative under the age of 16 years, s 329(4)	10 years' imprisonment	4 years' imprisonment Concurrent
44/2015	Count 15 BU 6824/2014	Indecently recorded a child who was a lineal relative under the age of 16 years, s 329(6)	10 years' imprisonment	3 years' imprisonment Concurrent
44/2015	Count 16 BU 6825/2014	Knowingly sexually penetrated a child who was a lineal/de facto relative under the age of 16 years, s 329(2)	20 years' imprisonment	8 years' imprisonment Concurrent
44/2015	Count 17 BU 6826/2014	Knowingly sexually penetrated a child who was a lineal/de facto relative under the age of 16 years, s 329(2)	20 years' imprisonment	9 years' imprisonment Concurrent
44/2015	Count 18 BU 6827/2014	Knowingly sexually penetrated a child who was a lineal/de facto relative under the age of 16 years, s 329(2)	20 years' imprisonment	10 years' imprisonment Concurrent
44/2015	Count 19 BU 6828/2014	Knowingly sexually penetrated a child who was a lineal/de facto relative under the age of 16 years, s 329(2)	20 years' imprisonment	8 years' imprisonment Concurrent
44/2015	Count 20 BU 6829/2014	Indecently recorded a child who was a lineal relative under the age of 16 years, s 329(6)	10 years' imprisonment	3 years' imprisonment Concurrent
44/2015	Count 21 BU 6830/2014	Knowingly sexually penetrated a child who was a lineal/de facto relative under the age of 16 years, s 329(2)	20 years' imprisonment	8 years' imprisonment Cumulative
44/2015	Count 22 BU 6831/2014	Indecently recorded a child who was a lineal relative under the age of 16 years, s 329(6)	10 years' imprisonment	3 years' imprisonment Concurrent
TOTAL	16 years' imprisonment Start date 23 December 2014 Eligible for parole
Indictment number	Count/charge	Offence	Maximum penalty	Sentence/ outcome
43/2015	Count 1 BU 6927/2014	Knowingly sexually penetrated a child who was a lineal/de facto relative under the age of 16 years, s 329(2)	20 years' imprisonment	5 years' imprisonment Head sentence
43/2015	Count 2 BU 6928/2014	Knowingly sexually penetrated a child who was a lineal/de facto relative under the age of 16 years, s 329(2)	20 years' imprisonment	5 years' imprisonment Concurrent
43/2015	Count 3 BU 6540/2014	Indecent dealing with a child over 13 years under 16 years, s 321(4)	7 years' imprisonment	10 months' imprisonment Concurrent
43/2015	Count 4 BU 6541/2014	Indecent dealing with a child over 13 years under 16 years, s 321(4)	7 years' imprisonment	2 years' imprisonment Concurrent
43/2015	Count 5 BU 6542/2014	Sexual penetration of a child over 13 years under 16 years, s 321(2)	14 years' imprisonment	4 years 6 months' imprisonment Concurrent
43/2015	Count 6 BU 6543/2014	Sexual penetration of a child over 13 years under 16 years, s 321(2)	14 years' imprisonment	Reduced from 4 years 6 months' to 4 years' imprisonment for totality purposes Cumulative
43/2015	Count 7 BU 6544/2014	Indecent dealing with a child over 13 under 16 years, s 321(4)	7 years' imprisonment	6 months' imprisonment Concurrent
TOTAL	9 years' imprisonment Start date 23 December 2024 Eligible for parole
TOTAL EFFECTIVE SENTENCE	IND 43/2015 & IND 44/2015	19 years' imprisonment Eligible for parole

CACR 117 of 2016 concerns the sentences imposed on indictment 44 of 2015. CACR 118 of 2016 concerns the sentences imposed on indictment 43 of 2015. The appeals were filed out of time and an extension of time is required. The delay in each appeal has been adequately explained. We would grant the extensions of time.
In each appeal, it is alleged that the total effective sentence infringes the first limb of the totality principle. During the hearing, the appellant was granted leave to add a further ground of appeal in respect of CACR 117 of 2016:
The sentencing judge erred in finding that the appellant's offending was in the category of worst cases of such offending and imposing sentences on that basis.[3]
[3] Appeal ts 4.
There is no challenge to the individual sentences that were imposed. The grounds of appeal in each appellant's case challenge the total effective sentence imposed in respect of each indictment and the overall total effective sentence. In oral argument, it became clear that the real challenge was as to the overall total effective sentence of 19 years' imprisonment.
For the reasons that follow, we would allow the appeals and resentence the appellant to an overall total effective sentence of 16 years' imprisonment.

The facts - indictment 43 of 2015

We will describe the facts in respect of the offences in indictment 43 of 2015 first.
Between 9 May 2013 and 8 May 2014, K, the appellant's de facto partner's son, stayed at the appellant's residence in a town in the south‑west of the State. His mother left K in the appellant's care while she was at work. While K's brother was in the toilet, the appellant called K over to him, pulled down his pants and performed fellatio on K (count 1).[4]
[4] Transcript, 16 May 2016, 17.
On another occasion, this time between 26 September 2014 and 15 October 2014, K was again left by his mother in the appellant's care. The appellant walked into K's room. K asked him 'not to suck his doodle'. Despite this plea, the appellant performed another act of fellatio on K (count 2).[5]
[5] Transcript, 16 May 2016, 17.
Counts 3 to 7 concern offences committed against F. All of the offences occurred on 30 November 2014 at F's home in a suburb of Perth. F was 13 years of age at the time. The appellant and his family were guests of F's guardian and her grandmother.
The appellant was asked by F's grandmother to install a blind and television.[6] While installing these items, the appellant approached F on four occasions. On the first occasion, the appellant spoke to F, who complained of feeling unwell. The appellant offered to massage her and F accepted the offer. During the massage, which occurred in F's bedroom, the appellant began to unclip F's bra. F arched her back away from the appellant, who stopped what he was doing and left the room (count 3).[7]
[6] Transcript, 16 May 2016, 18.
[7] Transcript, 16 May 2016, 18.
Later, the appellant returned to F's bedroom. He placed his hands under F's clothes and rubbed her breasts. He took off her bra and licked and sucked her nipples. The appellant stopped what he was doing when his daughter began to cry in another room (count 4).[8]
[8] Transcript, 16 May 2016, 18.
The appellant again returned to F's bedroom. He took hold of her head and chin and forced her mouth open. He then unzipped his pants and pushed her head onto his penis. He rocked F's head back and forth by holding her hair. Eventually, the appellant stopped and left the room (count 5).[9]
[9] Transcript, 16 May 2016, 18.
Yet again the appellant returned to F's bedroom where he began to massage her breasts. The appellant then positioned her on her hands and knees and told F that 'this might hurt'. The appellant then penetrated F's vagina with his penis for one to two minutes (count 6).[10]
[10] Transcript, 16 May 2016, 18.
Later that afternoon, the appellant took a number of children, including F, to a skate park. On the way, the appellant slapped F on her buttocks and told her that he wanted to take her to the change room and 'ride her'. The appellant asked her what she wished to do to him (count 7).[11]
[11] Transcript, 16 May 2016, 18.

The facts - indictment 44 of 2015

Counts 1 to 12 occurred at the appellant's house on unknown dates between 1 April 2014 and 17 October 2014. The 12 offences occurred in four separate incidents. In the first incident, the appellant undid A's nappy, and performed cunnilingus on her for about 24 seconds, pausing on three occasions. He recorded this on his mobile telephone (counts 1 and 2).[12]
[12] Transcript, 22 September 2015, 7.
In the second incident, the appellant removed A's clothing, exposed her vagina, and recorded a video of her vagina on his mobile telephone (count 3).[13]
[13] Transcript, 22 September 2015, 7.
In the third incident, the appellant partially removed A's nappy, and exposed her vagina. He then performed cunnilingus on her for approximately 12 seconds, before stopping and rubbing her vagina with his hand for approximately 5 seconds (counts 4 and 5). The appellant returned to performing cunnilingus on A for approximately 5 seconds, before pausing. He then, once again, performed cunnilingus on A, this time for approximately 8 seconds (counts 6 and 7). The appellant then sat upright and penetrated A's vagina with his penis for approximately 30 seconds, before performing a further act of cunnilingus on her (count 8). All of these sexual acts were recorded by the appellant on his mobile telephone (count 9).[14]
[14] Transcript, 22 September 2015, 7 - 8.
On another occasion (the fourth incident), the appellant removed A's clothing from her waist down and exposed her vagina. The appellant, while sitting upright, penetrated and rubbed A's vagina with his penis (count 10). The appellant withdrew his penis, and began masturbating. He ejaculated onto A's vagina (count 11). The appellant recorded each of these acts on his mobile telephone (count 12).[15]
[15] Transcript, 22 September 2015, 8.
On or about 2 May 2014, the appellant removed A's clothing from her waist down, exposing her vagina. He placed her on top of her bed. The appellant then performed cunnilingus on her. He also rubbed her vagina with his hand and a cloth. These acts were recorded by the appellant on his mobile telephone (counts 13 ‑ 15).[16]
[16] Transcript, 22 September 2015, 8 - 9.
On or about 16 May 2014, the appellant performed yet another act of cunnilingus on A, in her bedroom, this time lasting approximately 15 seconds, after which he rubbed and then digitally penetrated her vagina for approximately 30 seconds. He then penetrated A's vagina with his penis for approximately 80 seconds, after which he performed a further act of cunnilingus. All of these acts were recorded by the appellant on his mobile telephone (counts 16 ‑ 20).[17]
[17] Transcript, 22 September 2015, 9.
On 29 May 2014, the appellant opened A's nappy, exposing her vagina. He then performed cunnilingus on her. He recorded this act on his mobile telephone (counts 21 and 22).[18]
[18] Transcript, 22 September 2015, 9 - 10.
The offences in relation to A came to light in the course of the police investigating the matters which ultimately were the subject of indictment 43 of 2015. The police seized the appellant's mobile telephone and, although the recordings were deleted, they were able to retrieve and inspect them. The appellant was interviewed by police on 23 December 2014. He made no admissions to police.[19] He told the police he had no recollection of the alleged offences.
[19] Transcript, 22 September 2015, 10.
A did not suffer any physical injury as a result of the appellant's offending.[20] There was no evidence that A has any recollection of what occurred.
[20] Transcript, 22 September 2015, 23.

The appellant's antecedents

The appellant was aged 29 when he was sentenced on 22 September 2015[21] and he was 30 when he was sentenced on 16 May 2016.
[21] The transcript erroneously records the appellant being 39 years of age; transcript, 22 September 2015, 25.
His parents separated when he was very young and he was raised by his mother and stepfather. The appellant reported that he had been sexually abused for a period of six months between the ages of 3 and 4 years and that he was also the subject of physical abuse over a longer period. He left school before completing year 12 and has a trade qualification as a sandblaster and painter. His work history since 2010 has been inconsistent.

The appellant has a long history of illicit drug abuse which commenced when he was a teenager. Most significantly, he has abused methylamphetamine. At the time of his offending, the appellant was a heavy user of the drug.[22] Somehow he had been able to conceal his illicit drug use from his partner.
[22] Transcript, 22 September 2015, 25 ‑ 26.
The appellant has a relatively short criminal history. Most of his convictions since 2011 have been for traffic offences. He has no prior convictions for sexual offences against children. He has been subject of a community based order and a suspended imprisonment order.

The reports

A pre‑sentence report, a psychological report and a psychiatric report were prepared for the sentencing judge in respect of the offences the subject of indictment 44 of 2015. Those reports were also before the court in respect of the sentencing for the offences the subject of indictment 43 of 2015.[23]
[23] Transcript, 16 May 2016, 25.
In each report it was noted that the appellant claimed that he had no recollection of the offending in respect of A. He claimed that this was a consequence of his heavy methylamphetamine use.
Both the psychologist and psychiatrist expressed the opinion that the appellant's risk of sexual reoffending was low to moderate based on the information they had been given. The psychiatrist stated that solely on his understanding that the offending did not last for more than six months, he did not make a diagnosis of paedophilic disorder. The psychiatrist said that he was aware that the appellant faced further charges (being the offences the subject of indictment 43 of 2015). He said that if the appellant was found to be criminally responsible for these offences, he would revise his diagnosis. The psychologist adopted a similar position to the psychiatrist, but stated that if the appellant was found guilty of the offences the subject of indictment 43 of 2015 that would, in his opinion, increase the estimate of his risk of reoffending from moderate to high.
In the opinion of the psychiatrist, the appellant's offending in respect of A was not related to psychiatric illness. The psychologist wrote that, on the information he had been given, he hypothesised that the primary influencing factors to the appellant's sexual offending against A were:
[L]ikely lowered self‑esteem, significant consistent life stressors, and perhaps primarily, what appears to be his unmet emotional needs for intimacy and affection which seem to be of utmost importance to him in life.[24]
[24] Report Steve Jobson, 6 July 2015, page 8.
No further reports were prepared for the appellant's sentencing on 16 May 2016 and none was sought by the parties.

The sentencing remarks

We will first summarise his Honour's sentencing remarks which were delivered on 22 September 2015 in respect of indictment 44 of 2015.
His Honour identified five aggravating factors, being:
1.The age of the victim.
2.The breach of trust.
3.The persistence of the offender.
4.That the offending was recorded.
5.The 'extraordinary depravity' of what the appellant did.[25]
[25] Transcript, 22 September 2015, 24.
The most significant mitigating factor was the appellant's pleas of guilty. After noting that the appellant's recording of the offences on his mobile telephone made his convictions 'a foregone conclusion', his Honour gave a 15% reduction to the head sentences for the pleas of guilty, pursuant to s 9AA of the Sentencing Act 1995 (WA).[26] Otherwise, there was little mitigation. His Honour did not accept the appellant's claim that he did not remember what he had done to A. As a result, he concluded that there was little or no true remorse. His Honour said, in substance, that the appellant did not have good antecedents.
[26] Transcript, 22 September 2015, 27.
With respect to the seriousness of the offending, his Honour described it as 'monstrous'. His Honour went on to state:
Given the aggravating features that I've referred to it is, in my view, in the category of worst cases of such offending. I am, of course, aware human ingenuity being what it is, that it's always possible to imagine a case still worse.
If there had been evidence of physical injury such would have been the case: still worse. Despite that, I have no hesitation in fixing this offending in the category of worst cases. I am required to impose a sentence commensurate with the seriousness of the offence. That's determined by taking into account the statutory penalty, and I've referred to those, the circumstances of the commission of the offence which have been described, including the vulnerability of the victim of the offences which is obviously a very, very significant factor here.
I am required to have regard to any aggravating factors and I've described those, and the few mitigating factors that are available.[27]
[27] Transcript, 22 September 2015, 28.
His Honour also referred to 'the need to protect the public or a portion of it'.[28]
[28] Transcript, 22 September 2015, 28.
With respect to the offending the subject of indictment 43 of 2015, his Honour identified the following aggravating factors:
1.In respect of counts 1 and 2, the 'very young' age of the victim, the breach of trust and the 'very great' age gap between the appellant and the victim.
2.With respect to the offending the subject of counts 3 to 7, the 'extremely brazen and persistent' nature of the offending which occurred 'over a relatively extended period of time on the day'. His Honour also referred to the age gap between the appellant and the victim.
Apart from the pleas of guilty, his Honour said that there was little to be said in mitigation of the offending. His Honour reduced the head sentences that he would have otherwise imposed by 12.5% for the pleas of guilty, pursuant to s 9AA of the Sentencing Act.
Having regard to the offending the subject of both indictments and the reports to which we have already referred, his Honour concluded that retribution, deterrence and the protection of society were factors that warranted greater prominence in sentencing the appellant.[29] In respect of the protection of society, his Honour said:
Repeated sexual abuse over an extended period is an indicator of the extent to which an offender is a risk to the community.[30]
[29] Transcript, 16 May 2016, 27.
[30] Transcript, 16 May 2016, 27.
In sentencing the appellant on each indictment his Honour took into account the totality principle. On indictment 44 of 2015 he did this by ordering a substantial degree of concurrency. On indictment 43 of 2015 he reduced the sentence he would have imposed on count 6 from 4 years 6 months to 4 years. As between the offences in the indictment he ordered a substantial degree of concurrency. Finally, he ordered that the total effective sentence of 9 years commence after he had served 10 years of the 16‑year sentence imposed on 22 September 2015. The combined effect of his Honour's orders was that the appellant received an overall total effective sentence of 19 years' imprisonment.

Relevant legal principles

The general legal principles applicable to appeals against sentence are well known and uncontroversial. An appellate court can only intervene if the appellant demonstrates either and express or implied material error. A material error is one which affects or is capable of affecting the outcome.[31] An appellate court is not entitled to intervene merely because it disagrees with the sentence imposed.
[31] Fernandes v The State of Western Australia [2009] WASCA 227 [10].
The ground of appeal which alleges an infringement of the totality principle is an allegation of implied error of the type identified in House v The King.[32] The totality principle comprises two limbs. The appellant relies only on an infringement of the first limb which requires 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 the offender's personal circumstances.[33]
[32] House v The King [1936] HCA 40; (1936) 55 CLR 499.
[33] Roffey v The State of Western Australia [2007] WASCA 246 [24].
The allegation in CACR 117 of 2016 that his Honour erred in finding that the appellant's offending was in the worst category of cases is an allegation of express error.

Ground 2 - CACR 117 of 2016 - did his Honour err in categorising the offences as falling within the category of 'worst cases'?

The expression 'worst case' is often used synonymously with the expression 'worst category'. The expression 'worst category' has a particular legal signification. What is meant by an offence falling within the 'worst category' has been explained in numerous cases. Most recently, the question was discussed by the High Court in R v Kilic.[34]
[34] R v Kilic [2016] HCA 48; (2016) 91 ALJR 131.
In the joint judgment of Bell, Gageler, Keane, Nettle and Gordon JJ, the Court said that the expression refers to an instance of an offence which is so grave that it warrants the imposition of the maximum prescribed penalty for the offence. Both the nature of the crime and the circumstances of the offender must be considered in determining whether an offence falls within the 'worst category'. Once it is concluded that an offence falls within the category, it is beside the point that it may be possible to conceive of an even worse instance of the offence.[35]
[35] R v Kilic [18].
Their Honours warned against the use of the expression 'worst category'.[36] Relevantly, their Honours said that where it was used to describe a case that does not warrant the imposition of the maximum penalty it was apt to cause to confusion and was likely to lead to error. As we understand it, the likely error referred to is the overstatement of the seriousness of the offence, which in turn may lead to the imposition of a sentence greater than the relevant circumstances require.
[36] R v Kilic [19], [20].
Where an offence, although grave, is not so grave as to warrant the imposition of the maximum prescribed penalty, a sentencing judge must consider where the facts of the offence and the offender lie on the spectrum that extends from the least serious instances of the offence to the worst category properly so called.[37]
[37] R v Kilic [19].
Their Honours said that in those cases where it is relevant to do so, the sentencing judge should, rather than use the expression 'worst category', state in full whether offence is or is not so grave as to warrant the maximum penalty.[38]
[38] R v Kilic [20].
In The State of Western Australia v BLM,[39] the majority held, having regard to the provisions of the Sentencing Legislation (Transitional Provisions) Amendment Act 2008 (WA), that where a case falls within the worst category, a sentencing judge may impose the maximum penalty or something approaching it, notwithstanding that the sentence is outside any previously established sentencing range.[40]
[39] The State of Western Australia v BLM [2009] WASCA 88; (2009) 40 WAR 414.
[40] The State of Western Australia v BLM [43]; GHK v The State of Western Australia [2014] WASCA 19; (2014) 238 A Crim R 178 [46].
In this appeal, senior counsel for the appellant submitted, in substance, that, as serious as the offending undoubtedly was, it did not warrant being categorised as being in the 'worst case'.
Counsel for the respondent conceded that the individual sentences that were imposed were 'inconsistent with the finding of worst case'. Counsel acknowledged that his Honour erred in finding that the offending fell within the category of 'worst cases', but nevertheless the appeal should be dismissed because no different sentence should have been imposed.[41]
[41] Appeal ts 19.

Disposition - ground 2

Our initial impression was that his Honour had made the error alleged in ground 2 and that the respondent's concession should be accepted. However, on further reflection, and having considered the context in which his Honour concluded that the appellant's offending was 'in the category of worst cases of such offending', his Honour did not make the error now alleged. When his Honour's sentencing remarks are considered as a whole it is clear that he did not refer to any particular offence when he used the expression 'worst cases'. Rather, his use of the expression was to signify he was referring to the undoubtedly grave circumstances in which all of the offences the subject of indictment 44 of 2015 were committed.[42] We have reached this conclusion having regard to the following factors:
1.Defence counsel in his plea in mitigation accepted that the appellant's offending as a whole was at the 'high end' of the scale of seriousness. His Honour commented that this submission was 'entirely sensible' and that it was 'difficult to avoid any other categorisation of it'.[43]
2.Although the prosecutor said that the offences were in the 'highest category of seriousness', she did not submit that any particular offence fell within the 'worst category'. In particular, she did not submit that any individual offence warranted the imposition of the maximum penalty.
3.Nowhere in the sentencing remarks did his Honour state that any particular offence fell in the 'worst category'.
4.His Honour did not state that he did not have to give consideration to any previously established sentencing range.
5.The individual sentences that were actually imposed fell well short of the maximum prescribed penalty.
[42] A similar situation arose in GHK v The State of Western Australia [49].
[43] Transcript, 22 September 2015, 20.
In any event, a different sentence should not have been imposed in relation to any individual count. See s 31(4)(a) of the Criminal Appeals Act 2004 (WA).
While we would give leave to appeal on ground 2, it has not been made out.

Was there an infringement of the first limb of the totality principle?

As we stated earlier, the real issue for determination is whether the overall total effective sentence of 19 years' imprisonment infringed the first limb of the totality principle. It is well established that the primary sentencing consideration for offences of the kind committed by the appellant are punishment of the offender and personal and general deterrence having regard to the need to protect vulnerable children.[44] Matters personal to an offender are not irrelevant, but they are of less mitigatory weight than might otherwise be the case.
[44] Woods v The Queen (1994) 14 WAR 341, 345 ‑ 346 and GHK v The State of Western Australia [2014] WASCA 19; (2014) 238 A Crim R 178 [12].
Equally well established is that there is no tariff for offences of the kind committed by the appellant. Sentences imposed in other cases are relevant to whether there has been an infringement of the first limb of the totality principle, to ensure broad consistency and to avoid the risk of idiosyncratic and arbitrary outcomes.[45] Of course, in the end each case must be determined on its own facts and circumstances.
[45] The State of Western Australia v Akizuki [2008] WASCA 267; (2008) 192 A Crim R 373 [68] ‑ [69].
We have already set out the maximum penalty for the offences and the factual circumstances of each offence. We have also described the appellant's antecedents and the contents of the reports considered by the learned sentencing judge. We will not repeat what we have already written on these matters.
The offences committed by the appellant carry substantial maximum penalties reflecting Parliament's view that offences of the kind committed by the appellant are inherently serious. When viewed as a whole, there can be no other conclusion than that the offending was of the utmost seriousness.
Turning first to the offences the subject of indictment 44 of 2015, the victim, who was the appellant's own child, was just 2 years of age. She could not have been more vulnerable. The idea of engaging in sexual conduct with any child is abhorrent, but it is especially so with a child as young as A. The offences constituted a gross breach of the trust reposed in any parent. The appellant's offending was not isolated. The 22 offences were committed over approximately six months and over seven occasions. Although in other cases the offending occurs over a longer, sometimes much longer, period, six months remains a substantial period of time. The fact that the offences were recorded on the appellant's mobile telephone is an aggravating factor. This is because of the potential for the offending conduct to be viewed again by the appellant or to be distributed to others. We recognise at once that there was no evidence that the appellant intended to distribute the recordings. Also, it was accepted that he attempted to erase them.
The offences the subject of indictment 43 of 2015 were also serious. The victim in counts 1 and 2 was the appellant's de facto child. Each offence constituted a breach of trust. The acts committed by the appellant on K would have been deeply humiliating for the victim. Count 2 was committed in circumstances where the appellant ignored K's plea 'not to suck his doodle'. K was very young when the offences were committed and was in no position to defend himself against the appellant's predations.
Although the offences committed against F occurred on one day, the appellant pursued F and persisted in the offending to the point where it culminated with the acts of sexual penetration which constituted counts 5 and 6. These were committed by the appellant using physical force.
The appellant's personal circumstances were not favourable, although it is true that he had not been convicted of any sexual offence in the past. With respect to the appellant's risk of reoffending, when all the appellant's offending is considered and having regard to the contents of the opinions of the psychologist, it may be concluded, as his Honour did in respect of indictment 43 of 2015, that his risk of reoffending was moderate to high. Accordingly, protection of the public is a matter of importance. The only substantial matter of mitigation in respect of the appellant's offending was his pleas of guilty. No challenge has been made to the reductions his Honour gave for the individual counts pursuant to s 9AA of the Sentencing Act. The appellant could not be said to be youthful or remorseful. His prospects for rehabilitation are, at this point, unknown.
We have had regard to other cases of sexual offending of a serious nature committed against children decided by this court which have at least some features comparable to the appellant's offending. The cases cited by the parties were B v The Queen;[46] VIM v The State of Western Australia;[47] GHS v The State of Western Australia;[48] KMB v The State of Western Australia;[49] MMC v The State of Western Australia;[50] ERA v The State of Western Australia[51] and LJH v The State of Western Australia.[52] We have also had regard to Lewsam v The State of Western Australia;[53] FWB v The State of Western Australia;[54] NHT v The State of Western Australia;[55] SWD v The State of Western Australia;[56] MAS v The State of Western Australia[57] and EXF v The State of Western Australia.[58]
[46] B v The Queen [2002] WASCA 236.
[47] VIM v The State of Western Australia [2005] WASCA 233; (2005) 31 WAR 1.
[48] GHS v The State of Western Australia [2006] WASCA 42.
[49] KMB v The State of Western Australia [2010] WASCA 212.
[50] MMC v The State of Western Australia [2012] WASCA 187.
[51] ERA v The State of Western Australia [2013] WASCA 163.
[52] LJH v The State of Western Australia [2016] WASCA 155.
[53] Lewsam v The State of Western Australia [2016] WASCA 60.
[54] FWB v The State of Western Australia [2016] WASCA 118.
[55] NHT v The State of Western Australia [2016] WASCA 167.
[56] SWD v The State of Western Australia [2012] WASCA 76.
[57] MAS v The State of Western Australia [2012] WASCA 36.
[58] EXF v The State of Western Australia [2015] WASCA 118.

In post‑transitional terms, the overall total effective sentence imposed upon the appellant of 19 years is substantially beyond the sentences imposed in any of the cases we have mentioned. That, by itself, does not lead to the conclusion of error. However, as serious as the appellant's offending is, when all of the circumstances of this case are compared with some of the cases that have been cited (such as ERA and the cases analysed by Buss JA in that case at [96] ‑ [116]) and bearing in mind the appellant's pleas of guilty, we conclude that the overall total effective sentence of 19 years does not bear a proper relationship to the overall criminality involved in all of the offences, viewed in their entirety, having regard to all relevant facts and circumstances and all relevant sentencing factors. We have been persuaded that the first limb of the totality principle has been infringed.

Resentencing

This court has the material necessary to resentence the appellant. In our opinion, the overall criminality of the appellant's offending would be properly marked and all relevant sentencing principles would be satisfied by the imposition of an overall total effective sentence of 16 years' imprisonment. We have arrived at this outcome having regard to all of the relevant facts and circumstances of the offending over the two indictments and by consideration of the appellant's personal circumstances and the comparable cases. Of course, we have taken account of the pleas of guilty. As there was no challenge to the reductions under s 9AA of the Sentencing Act, we would not interfere with them.
We would achieve the new overall total effective sentence of 16 years' imprisonment as follows. In relation to CACR 117 of 2016, we would set aside the sentence of 8 years' imprisonment on count 21 on indictment 44 of 2015 and substitute a sentence of 5 years' imprisonment to be served cumulatively on the sentence imposed on count 1. All of the other sentences imposed by the sentencing judge, including the orders for concurrency and cumulacy, eligibility for parole and backdating should stand. Thus, the new total effective sentence on indictment 44 of 2015 is 13 years' imprisonment with eligibility for parole, backdated to 23 December 2014. As for CACR 118 of 2016, we would only interfere with the sentences and other orders that his Honour imposed to the extent that the commencement date of 23 December 2024 is set aside and substituted with 23 December 2021.
The total effective sentence of 9 years' imprisonment imposed in respect of the offences the subject of indictment 43 of 2015 did not infringe the first limb of the totality principle. The new total effective sentence of 13 years' imprisonment for the offences the subject of indictment 44 of 2015 satisfies the requirements of the first limb of the totality principle.