SCN v The State of Western Australia

[2017] WASCA 138

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT :   THE COURT OF APPEAL (WA)

CITATION:   SCN -v- THE STATE OF WESTERN AUSTRALIA [2017] WASCA 138

CORAM:   BUSS P

BEECH JA
HALL J

HEARD:   18 APRIL 2017

DELIVERED          :   26 JULY 2017

FILE NO/S:   CACR 115 of 2016

BETWEEN:   SCN

Appellant

AND

THE STATE OF WESTERN AUSTRALIA
Respondent

ON APPEAL FROM:

Jurisdiction              :  DISTRICT COURT OF WESTERN AUSTRALIA

Coram  :EATON DCJ

File No  :IND 193 of 2016

Catchwords:

Criminal law - Appeal against sentence - Sexual penetration of lineal relative who was a child under 16 years - Sexual penetration of a child under 13 years - Sexual penetration of a child over 13 years and under 16 years - Indecent dealings with a child under 13 years - Indecent dealings with a child over 13 years and under 16 years - Stupefying to commit indictable offence - Sexual servitude - Whether aggregate sentence of 22 years 6 months'  imprisonment infringed first limb of totality principle - Whether discount of 10% for pleas of guilty on individual counts was inadequate - Whether sentence of 9 years' imprisonment on count 60 manifestly excessive

Legislation:

Criminal Code (WA), s 331B
Sentencing Act 1995 (WA), s 9AA, s 9AA(2)

Result:

Extension of time granted
Applications to adduce additional evidence refused
Leave to appeal in respect of grounds 2 and 4 refused
Appeal dismissed

Category:    D

Representation:

Counsel:

Appellant:     Mr S B Watters

Respondent:     Mr J C Whalley

Solicitors:

Appellant:     Gary Rodgers Barrister & Solicitor

Respondent:     Director of Public Prosecutions (WA)

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

Abraham v The State of Western Australia [2014] WASCA 151; (2014) 244 A Crim R 1

B v The Queen [2002] WASCA 236

Beins v The State of Western Australia [No 2] [2014] WASCA 54

Dempsey v The Queen (Unreported; ConcurrentA SCt of WA; Library No 960059; 9 February 1996)

DKA v The State of Western Australia [2015] WASCA 112

ERA v The State of Western Australia [2013] WASCA 163

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

KMB v The State of Western Australia [2010] WASCA 212

LFG v The State of Western Australia [2015] WASCA 88; (2015) 48 WAR 178

LJH v The State of Western Australia [2016] WASCA 155

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

Rossi v The State of Western Australia [2014] WASCA 189; (2014) 47 WAR 508

SWD v The State of Western Australia [2012] WASCA 76

The State of Western Australia v PJW [2015] WASCA 113

Thomas v The State of Western Australia [2014] WASCA 202

TABLE OF CONTENTS

The facts
Offences involving Ryan Clegg

Counts 1 to 11

Offences involving A

Counts 12 to 19

Offences involving Nicholas Beer

Counts 20 to 31

Offences involving Benjamin Clarke

Counts 32 to 34

Offences involving Troy Milbourne

Counts 35 to 43

Offences involving Dawid Volmer

Counts 45 to 56

Sexual servitude offences

Counts 57 to 61
Count 57 (Clegg)
Count 58 (Beer)
Count 59 (Clarke)
Count 60 (Milbourne)
Count 61 (Volmer)
Count 62 (A)

The prosecution process
Personal circumstances
Psychological and psychiatric reports
Sentencing remarks

Grounds
Ground 2 - s 9AA discount
Ground 3 - totality
Ground 4 - manifest excess, count 60

Conclusion
Annexure A

1. REASONS OF THE COURT:    This is an appeal against sentence. 

2. The appellant pleaded guilty to 61 sexual offences and was sentenced to a total effective term of 22 years and 6 months' imprisonment.  The nature of the individual offences, the maximum penalties and the sentence imposed for each offence are set out in a table which is annexed to these reasons. 

3. The appeal notice was filed four days late and an extension of time is required.  An affidavit of the appellant's solicitor states that the sentencing transcript was received on the day the notice of appeal was filed.  The notice was filed as promptly as possible after counsel had the opportunity to review all the relevant materials.  The delay is short and adequately explained.  An extension should be granted.

4. There were originally four grounds of appeal. Mazza JA granted leave to appeal on ground 3 and referred the application for leave to appeal on the other grounds to the hearing of the appeal. At the hearing, the appellant abandoned ground 1 and particular 2.1 of ground 2. The principal issue remaining was whether the aggregate sentence infringed the first limb of the totality principle. The other issues were the calculation of the discount for pleading guilty pursuant to s 9AA of the Sentencing Act 1995 (WA) and a claim that the sentence on one of the counts (count 60) was manifestly excessive.

5. There were also two applications to adduce additional evidence on the appeal.  The first application related to the timing of the pleas of guilty.  The second application related to how co‑offenders had been dealt with.  We will refer to those applications in dealing with the grounds.

6. This is a case which is in a class of its own.  The nature and the extent of the offending are unlike any other case.  The offending occurred over a two‑year period.  The complainant was the appellant's daughter who was aged between 11 and 13 at the time.  He was the primary carer for the child.  He had a sexual relationship with her.  He also arranged for her to be provided to other men for their sexual gratification.  He ensured that the child was compliant with demands that were deviant and degrading.  He derived depraved pleasure from seeing her sexually abused by other men.  The aggregate sentence, though high, was justified by the very serious circumstances of this case.  For the reasons that follow, we would refuse leave to appeal in respect of grounds 2 and 4 and dismiss the appeal.

The facts

1. The complainant is the biological daughter of the appellant and was born on 24 November 2001.  At all material times the complainant lived with the appellant at an address in Butler.  Her mother and the appellant were separated and her mother lived at a different house in Perth with the complainant's older brother.

2. The offences fall into a number of groups.  Each group relates to conduct that the appellant engaged in with the complainant together with one of six other men.  The men were all previously unknown to the appellant.  They have all been charged and most have been convicted and sentenced.  Some proceedings were still pending as at the time of this appeal.  For this reason it is necessary to use a pseudonym for one co‑offender.

Offences involving Ryan Clegg

Counts 1 to 11

1. Between January 2013 and late November 2014, the appellant and Ryan Clegg met via an online classified advertising site and struck up a friendship.  During the course of online communication the appellant and Clegg engaged in sexually explicit chat about the complainant.  The complainant was aged 12 at this time and when all the subsequent offences with Clegg were committed.

2. By pre‑arrangement the appellant booked accommodation at a motel in Scarborough and met Clegg at the motel so that Clegg could have sex with the complainant.  Clegg had penile/vaginal sexual intercourse with the complainant on the lounge suite in the motel room while the appellant sat close by and watched (count 1).  Clegg ejaculated inside the complainant and, after having a brief conversation with the appellant, he left the motel.

3. On a later occasion the appellant and the complainant attended Clegg's address in North Fremantle.  It had been arranged between the appellant and Clegg that Clegg would have sex with the complainant at that address.  Sometime after arriving the complainant asked to go to bed.  Clegg told her that she could sleep in his bed so long as she did so naked.  The complainant fell asleep on the bed and was woken later by Clegg who was lying on one side of the bed and fondling the complainant's breasts while the appellant lay watching on the other side of the bed (count 2).  Clegg then touched the complainant's vagina while the appellant watched (count 3).  With the appellant still watching and despite attempts by the complainant to push Clegg away, Clegg put his penis into the complainant's vagina and had sexual intercourse with her (count 4). When Clegg had finished, the complainant went back to sleep.

4. On another occasion the appellant arranged for Clegg to attend their house in Butler so that Clegg could have sex with the complainant.  After arriving at the house and while they were in the lounge room Clegg touched the complainant's vagina with his hand (count 5).  Clegg then had penile/vaginal sexual intercourse with the complainant and ejaculated onto her stomach while the appellant sat close by and watched (count 6).

5. On another occasion the appellant again arranged for Clegg to attend their house in Butler so that Clegg could have sex with the complainant.  After arriving at the house, and while they were in the lounge room, Clegg touched the complainant's vagina with his hand (count 7).  Clegg then had penile/vaginal sexual intercourse with the complainant and ejaculated onto her stomach while the appellant sat close by and watched (count 8).

6. During the police investigation police seized electronic storage devices belonging to Clegg.  On those devices police located five indecent photographs taken of the complainant by the appellant (count 9).

7. The police also found 12 indecent images of the complainant (which include three of the five that are the subject of count 9) that were sent to Clegg by the appellant.  Nine of these images were of the complainant in bondage attire in various poses, including being restrained, with her breasts and genitals exposed.  The sending of these images is the subject of an offence of distributing child exploitation material (count 10).  A further two images of the complainant were sent to Clegg by the appellant during the course of an online chat on 6 December 2014.  These photos were of the complainant's naked buttocks and her genitals (count 11). 

Offences involving A

Counts 12 to 19

1. The next series of offences relate to an associate who will be referred to in these reasons as A.  A is another man whom the appellant met through an online classified advertising website.  He was 45 years old at the relevant time. 

2. The appellant invited A to his home address in Butler to socialise and A accepted that invitation.  After several hours of socialising at the house the appellant offered the complainant to A for sexual intercourse.  The complainant, who was 13 years old at the time, was taken into the main bedroom where she undressed and lay on the bed.  She was joined by the appellant and A who were both naked.

3. Under the direction, encouragement and observation of the appellant the complainant got on top of A who inserted his penis into her vagina and had sexual intercourse with her for about 10 minutes (count 12).  The complainant was then instructed to lean forward over A until she was on her hands and knees.  While she was in this position A put his penis in the complainant's mouth and she performed fellatio on him (count 13).  A then performed cunnilingus on the complainant for about 10 minutes (count 14).  While A was doing that the appellant touched the complainant's breast (count 15) and kissed her stomach and breasts (count 16).  Following this, and while A was still performing cunnilingus on the complainant, the appellant inserted his finger into the complainant's vagina (count 17).

4. A then shifted onto his side and positioned the complainant in front of him.  He then put his penis into the complainant's vagina and had sexual intercourse with her until he ejaculated (count 18). A got up off the bed and went into the bathroom where he disposed of the condom that he had been wearing.  Once he had disposed of the condom A returned to the bedroom where he spoke to the appellant, who had an erection and was wearing a condom.  Following the conversation with A the appellant returned to the bed where he put his penis into the complainant's vagina and had sexual intercourse with her while A watched (count 19). A then left the house.

Offences involving Nicholas Beer

Counts 20 to 31

1. The next series of offences involve another male associate by the name of Nicholas Beer.  Beer was aged 33 at the time of the offences.

2. On Friday 17 January 2014 the appellant placed an advert on a digital online classified advertising website stating that he was the single father of a female child looking for friendship and that he was drug free and that he and his daughter could not 'host'.  This meant that he and his daughter would attend a responder's address to meet.

3. The appellant struck up an online friendship with Beer and arranged to bring the complainant, who was then 12 years old, to Beer's residence in Wanneroo.  Once at Beer's home the appellant and Beer dressed the complainant in bondage restraints and required her to remove her clothing until she was almost naked.  The appellant and Beer then took a series of 150 indecent photographs of the complainant with her genitals and breasts exposed while she was dressed in bondage gear (count 20).  The appellant was originally charged with 150 separate indecent recording offences in relation to this conduct but these were later rolled into a single indecent recording offence.

4. The appellant and Beer then took a video clip of the complainant in which she can be seen naked apart from a piece of fabric round her waist.  She is shackled by the hands and ankles to each corner of the bed and is wearing a black full face mask with a gag in her mouth and a dog‑collar with the word 'bitch' on it  (count 21).  The video clip lasts for 2 minutes and 14 seconds during which the complainant can be seen struggling against her restraints and saying she doesn't like it and to stop.  At one point in the video the complainant says, 'Stop please dad'.  The appellant and Beer made another short video clip of the complainant lasting about a second which showed her in the same restrained position as described in count 21 (count 22).

5. While the complainant was posing on Beer's bed in the bondage gear, Beer stroked her naked buttocks (count 23) and her exposed breasts (count 24). This was done in the presence of the appellant.

6. When the complainant was posing in the lounge room for some of the photographs the subject of count 20 Beer stroked her on her naked buttocks (count 25).  Beer also stroked the complainant's genitals while the appellant watched (count 26).

7. After this the appellant separated the lips of the complainant's vagina to expose her clitoris and began to stroke it while Beer watched (count 27).  The appellant penetrated the complainant's vagina by moving apart her labia majora and exposing her vagina.  This was depicted in photos taken 13 seconds apart (count 28).  The appellant and Beer later penetrated the complainant's vagina again, with each putting a hand on her labia majora and moving them apart thus exposing her vagina.  This was depicted in a photograph (count 29).

8. In the bedroom and in the course of the video clip the subject of count 21, the complainant was sexually penetrated.  An index finger can be seen penetrating the complainant's vagina for about 10 seconds.  Later a right hand can be seen using the index and middle finger to part the complainant's labia majora.  A second right hand then digitally penetrates the complainant's vagina for about 10 seconds.  The complainant was restrained throughout (count 30).

9. During the course of the police investigation an image was located showing the complainant standing in the living room and looking at Beer's television.  The image on the television is a category 1 photograph of a naked child (count 31).

Offences involving Benjamin Clarke

Counts 32 to 34

1. The next series of offences relate to another associate by the name of Benjamin Clarke, who was 46 years old at the relevant time.  At the time of these offences the complainant was 12 years old.

2. Sometime between February 2014 and May 2014 the appellant responded to an online advert in which Clarke had advertised his services as a photographer seeking models.  The appellant and Clarke communicated over a period of time until a date was arranged for Clarke to attend the appellant's house in Butler to photograph the complainant.  The appellant and Clarke had discussed what the complainant would wear during the photographic sessions.  Clarke stated that he had bought some items of lingerie that he thought would look good on the complainant.

3. On an unknown date between February 2014 and May 2014 Clarke, in the presence of the appellant, took photographs of the complainant at both her home address and at an unidentified bush location in Perth's northern suburbs.  Some of the photos showed the complainant naked, semi‑naked and posing in lingerie and in sexually explicit poses.  Count 32 relates to 13 indecent photographs taken of the complainant at this time.

4. While taking photos at the appellant's home address Clarke and the appellant spoke with each other before both went to the appellant's bedroom where Clarke set his camera up on a tripod.  Clarke then lay on the bed and asked the complainant to join him and to undress and she did so.  Clarke then leaned over and tried to kiss her but the complainant pulled away from him (count 33).  Clarke then reached for the complainant's hand with the intention of placing it on his penis but the complainant pulled away again (count 34).  Clarke then moved the complainant on the mattress so that her legs were hanging over the edge onto the floor.  Clarke kneeled between the complainant's legs and masturbated to ejaculation with some of the ejaculate landing on the complainant (count 34). Immediately after this occurred the appellant entered the room and the appellant said that Clarke had 'cream‑pied' the complainant.

Offences involving Troy Milbourne

Counts 35 to 43

1. The next series of offences involve an associate named Troy Milbourne, who was about 40 years old at the relevant time.

2. Between February and May 2014  the appellant placed an online advert on craigslist.com offering to meet other men for the purpose of friendship and social interaction.  Milbourne responded to this advert and arranged to meet the appellant and the complainant.  Several days later the appellant and complainant met with Milbourne at a dog beach.  It was then arranged for Milbourne to attend the appellant's address for the purposes of socialising.

3. The following day Milbourne came to the appellant's house in Butler and the appellant told Milbourne that he could engage in sexual activity with the complainant.  Milbourne went into the appellant's bedroom and asked the complainant to join him in the shower.  The complainant initially declined but after repeated requests from both men she relented and agreed to have a shower with Milbourne.  Milbourne got into the shower and the complainant followed him in (count 35).  Whilst showering with the complainant, Milbourne tried to touch her by washing her with a sponge (count 36) but she pushed him away and told him he was disgusting.  Milbourne then asked the complainant to wash his penis (count 37) but she declined.  The appellant was near (but not in) the shower and yelled encouragement to the complainant by telling her to 'start.'

4. After the shower the complainant went to the appellant's room, sat on the bed and played on her mobile phone.  Milbourne entered the room and asked the complainant to undress.  The complainant complied and Milbourne also got undressed and got onto the bed.  The appellant remained in the bedroom during the subsequent sexual activity but did not actively participate.  Milbourne touched the complainant's breasts with his hands (count 38) and then touched her vagina with his hands (count 39).  The complainant lay on her back and Milbourne performed cunnilingus on her for about 2 minutes (count 40).  Milbourne sat on the bed with his back against the wall and the complainant performed fellatio on him for a short time (count 41).  Milbourne then put on a condom that had been given to him by the appellant.  The complainant lay on her back and Milbourne penetrated her vagina and had sexual intercourse with her for about 5 minutes (count 42).  As he did so he kissed and licked the complainant's breasts (count 43).  After ejaculating, Milbourne threw the condom away and left the house soon afterwards.  Count 44 was discontinued.

Offences involving Dawid Volmer

Counts 45 to 56

1. The next series of offences involve another male associate named Dawid Volmer.

2. In 2014, Volmer placed an online advert on craigslist.com offering 'sexual massages'.  The appellant responded to this advert and the appellant, the complainant and Volmer met for the first time in a park in Joondalup where an arrangement was made for Volmer to provide a sexual massage to the complainant. 

3. Several days after that initial meeting Volmer booked a hotel room in Perth and was met there by the appellant and the complainant.  After some small talk the appellant told the complainant that it was time for her massage.  The complainant stripped naked and lay on the bed where she was joined by Volmer who also stripped naked before commencing the massage on the complainant's body while the appellant watched (count 45).  In the course of the massage Volmer touched the complainant's genitals with his hand (count 46).  Volmer was now in an aroused state and climbed on top of the complainant and slid his erect penis against her (count 47).  The complainant started to cry so Volmer stopped and got off her.  The appellant chastised the complainant for her reluctance.  He and the complainant then left the hotel room.

4. During the course of the massage Volmer had produced a small bottle of amyl nitrate which he sniffed to enhance his sexual arousal.  He also gave it to the appellant and to the complainant to sniff, which she did.  It caused her to feel light‑headed and dizzy (count 48).

5. After this first encounter the appellant and Volmer communicated electronically from time to time.  About 18 months later they agreed that Volmer should come to the appellant's home to engage in sexual activity with the complainant, who was to be blindfolded throughout the course of the proposed visit.  Volmer and the appellant devised a plan whereby the appellant would tell the complainant that Volmer was blackmailing him and that the complainant had to do things to stop her father going to jail.  As part of this plan the appellant said he would delete all of the chat messages with Volmer and show the complainant messages from Volmer threatening the appellant.

6. Moments before his arrival at the appellant's home, Volmer sent a video to the appellant depicting a male being fellated and told the appellant that that was what he wanted from the complainant.  On Volmer's arrival he walked inside and went into the main bedroom where the complainant was naked and blindfolded on the bed with the appellant seated in a corner of the room, also apparently blindfolded.  The exact date of this incident is unknown but the complainant was 13 years old.  Volmer got onto the bed with the complainant and fondled her breasts (count 49).  He then lay on the bed and put his penis in the complainant's mouth.  She fellated Volmer until he ejaculated in her mouth (count 50).  During the course of this sexual activity Volmer produced a bottle of amyl nitrate which he held under the complainant's nose.  She inhaled the vapour and it again made her feel light‑headed and dizzy (count 51).

7. Subsequent to this visit the appellant and Volmer again arranged for Volmer to come to the appellant's home to engage in sexual activity with the complainant.  Once again, Volmer attended the appellant's house in Butler and walked in to find the complainant naked and blindfolded on the bed with the appellant in the corner of the room also apparently blindfolded.  Volmer stripped naked and got on the bed with the complainant and fondled her breasts (count 52).  Volmer then grabbed the complainant and rolled her on top of him before putting his penis into her vagina (count 53).  Whilst having sexual intercourse with the complainant in this position Volmer fondled the complainant's breasts (count 54).  Volmer then rolled the complainant onto her stomach and put his penis in her vagina again.  He had sexual intercourse with the complainant in this position and ejaculated in her vagina (count 55).  During the course of this sexual activity Volmer again produced a bottle of amyl nitrate which he held under the complainant's nose.  She inhaled the vapour and it made her feel light‑headed and dizzy for a short period of time (count 56).  Throughout this incident the appellant remained in the corner of the room and recorded the event on his mobile phone.  That recording was subsequently sent to Volmer but deleted before the police investigation commenced.

Sexual servitude offences

Counts 57 to 61

1. Each of these offences relates to the conduct of the appellant in compelling the complainant to provide sexual services to the associates referred to above.  The admitted facts in relation to each count incorporate the conduct covered by the individual counts with some additional details.  However, the focus was on the fact that the appellant compelled his daughter, a child under his care, to provide the sexual services to each of the men concerned.

Count 57 (Clegg)

1. The complainant was aged between 11 and 12 years old during the period the subject of this offence.

2. Between 1 January 2013 and 24 April 2014 the appellant placed an advert in the personal section of websites craigslist.com and locanto.com stating that he was the single father of a female child looking for friendship.  The appellant also responded to adverts in the personal section of these websites and commenced a friendship with Clegg.  Throughout their association the appellant and Clegg engaged in sexually explicit online communications via the messaging application Kik in which they both described in detail the performance of sexual acts with and upon the complainant.

3. The appellant and Clegg met on three separate occasions.  On each occasion the appellant brought the complainant so that Clegg could engage in sexual activity with her.  These acts are the subject of counts 1 to 11.

Count 58 (Beer)

1. The complainant was between 11 and 12 years during the period the subject of this offence. 

2. Following placement of the online adverts previously described, the appellant commenced a friendship with Beer.  The appellant and Beer chatted to each other online with the appellant referring to the complainant in a sexual way with fantasy undertones before it was agreed that the appellant would attend Beer's home with the complainant.

3. As a result of this arrangement the appellant took the complainant to Beer's home and the offences the subject of counts 20 to 31 were committed.

4. About six months later the appellant arranged for Beer to attend his home in Butler.  While the appellant and Beer consumed alcohol the complainant walked around the house with her breasts exposed for the sexual gratification of the appellant and Beer.

Count 59 (Clarke)

1. The complainant was 12 years old during the period the subject of this offence.

2. Following placement of the online adverts previously described, the appellant commenced a friendship with Clarke.  The appellant and Clarke chatted online for several weeks until the appellant invited Clarke to his house in Butler.  On Clarke's arrival the appellant allowed Clarke to photograph the complainant in a variety of poses including of her wearing lingerie.  At the end of this session Clarke left $100 for the complainant.

3. After further online conversations the appellant arranged for Clarke to return to his address to take more 'adult' photographs of the complainant.  The appellant sent Clarke a nude photograph of the complainant as an inducement.  A few days later Clarke again attended the appellant's home where he was met by the appellant and the complainant who was dressed in lingerie.  The appellant permitted Clarke to take photos of the complainant dressed in transparent lingerie and also with that lingerie removed.  They then travelled to a bushland setting where further photographs were taken.  The photographs taken on this day are the subject of count 32.

4. After returning from the bushland the appellant permitted Clarke to engage in the sexual activity with the complainant that forms counts 33 and 34.  After completion of that sexual activity Clarke left the house and left $300 for the complainant.

Count 60 (Milbourne)

1. The complainant was 12 years old during the period the subject of this offence.

2. Following placement of the online adverts previously described, the appellant commenced a friendship with Milbourne.  After arranging to meet on a local beach along with the complainant, the appellant sent a text to Milbourne with his home address and Milbourne attended the appellant's residence the following day.  Shortly after his arrival the appellant intimated to Milbourne that the complainant was available to him for sex and told him to make himself at home.  Shortly thereafter the complainant walked into the kitchen naked telling Milbourne that she was 'there for him.'  While Milbourne and the complainant showered together the appellant who was nearby shouted at them both to 'start.'

3. After the shower Milbourne and the complainant returned to the bedroom where condoms had been laid out on the bed by the appellant.  Milbourne then engaged in the sexual activity with the complainant that forms counts 38 to 43.

4. On a subsequent occasion some months later, the appellant transported Milbourne to his home whereupon Milbourne again had sex with the complainant in the presence of the appellant.

Count 61 (Volmer)

1. The complainant was 12 and 13 years old during the period the subject of this offence.

2. Following placement of the online adverts previously described, the appellant commenced a friendship with Volmer.  After conversing online the appellant took the complainant to a Perth hotel room to meet Volmer for the naked massage that is the subject of counts 45 to 48.  This massage stopped when the complainant became distressed.  The appellant chastised her verbally before leaving the hotel with her.

3. Some 18 months later Volmer contacted the appellant online.  The appellant and Volmer formulated and executed a plan for Volmer to have sex with the complainant.  This plan included Volmer sending threatening messages to the appellant so that the appellant could tell the complainant that Volmer was blackmailing him and that she would have to do things for Volmer to stop the appellant going to jail.  It is clear from the complainant's Child Witness Interview that the appellant carried out his part of this plan.  As a result of his agreement with the appellant, Volmer attended the appellant's home on two separate occasions where the offences the subject of counts 49 to 56 were committed.

Count 62 (A)

1. The complainant was 13 years old during the period the subject of this offence.

2. Following placement of the online adverts previously described, the appellant commenced a friendship with A.  During online conversations with A through the chat application Kik the appellant stated that he was being blackmailed by another man called Yoni who participated in a threesome with him and his daughter.  The appellant and A exchanged phone numbers and the appellant sent A a naked photo of the complainant.

3. In March 2015 A attended the appellant's house and the appellant offered the complainant to A for sexual intercourse.  During the subsequent sexual activity between A and the complainant that forms counts 12 to 18, the appellant directed the complainant to have intercourse with A and to perform sexual acts on him.  Whilst directing the complainant how to perform, the appellant also performed sexual acts on the complainant (count 19) and digitally penetrated her.

The prosecution process

1. The appellant was initially arrested on 1 April 2015 where he made some limited admissions to some of the offences the subject of the proceedings.  He was further spoken to by police on 21 May 2015 and 28 July 2015 when he declined to participate in a record of interview.

2. At a disclosure committal hearing on 5 February 2016 the appellant entered pleas of guilty to all charges and was committed to the District Court for sentencing.  He was sentenced on 23 June 2016.

Personal circumstances

1. The appellant was born on 19 July 1973 and was aged 42 at the time he was sentenced.  He was born in Western Australia and adopted when he was three months old.  He lived in regional Western Australia until he was about 13 or 14 years of age.  At this time, his adoptive parents decided to return with their family to the United Kingdom.  The adjustment to living in the United Kingdom was difficult for the appellant and this was compounded when his adoptive parents separated.

2. The appellant described his childhood to a psychologist as being positive and unremarkable.  He did indicate that he had been the victim of childhood sexual abuse but chose not to provide any details.  He also strongly asserted that his own history in no way excused his offending behaviour. 

3. The appellant left school just prior to his 16th birthday.  Having worked in fish and chip stores since the age of 14 he continued with that work and lived independently with friends.  In his later teens he gained an apprenticeship in painting and decorating, which he had nearly completed before deciding to return to Australia when aged 19.  Despite having an older brother in Australia, the appellant felt alone and disconnected when he returned.  His contact with his adoptive parents and other siblings who remained in the United Kingdom faded over the years and he also fell out of contact with his brother in this country.  An attempt to connect with his birth mother and her family was unsuccessful.

4. The appellant completed his apprenticeship in Perth and then worked in the painting and decorating industry for many years.  He was largely self‑employed and enjoyed considerable success in his trade.

5. In his early twenties the appellant met a similar‑aged Japanese woman who was on holiday in Perth.  They married quickly after she fell pregnant.  The child, a son, is now an adult.  His wife then fell pregnant with their second child, the complainant.  Whilst pregnant, the appellant's wife was hit by a car as she was walking.  She suffered serious injuries that required an extended stay in hospital.  After the birth of the complainant the family resumed living together.  However, the relationship quickly deteriorated.  The appellant attributed this to his wife having an acquired brain injury following the accident and displaying personality and behavioural changes.

6. The appellant met his second wife, another Japanese woman, four to five months after separating from his first wife.  He met his second wife through the internet.  She travelled to Perth where they met and formed a relationship.  After four or five years they married and were together for about eight years.  They had a child, a son, who was aged six years at the time of sentencing.

7. The appellant had disputes with his first wife regarding custody and access to their children.  The complainant moved to live with him, but this created strain with his second wife.  The appellant said that he started to sleep on a couch in the family room and that his daughter started to sleep there too, despite having her own bedroom.  Eventually the second marriage broke down and the appellant's second wife left with their baby son in 2013.  The appellant and the complainant continued to live together.  He reported that he started having sexual fantasies about the complainant when she told him that she had started menstruating.  He denied having had any previous sexual attraction to children.  He admitted that around this time he and the complainant started to sleep together in the same bed.

8. The appellant claimed that he came across his co‑offenders when looking for company on social media.  He denied that watching his daughter with other men was sexually arousing.  He said that he had treated his daughter as his friend, and perhaps a partner, and had only recently realised that it was wrong.  He said that he was present when the offences involving other men were committed in order to comfort his daughter, though he accepted that she expressed distress and made requests to stop.

9. The appellant handwrote a letter dated 23 June 2016 (the date he was sentenced).  In it he expressed his shame and regret for the impact his offending has had on his family.  He said that he had 'no right' to involve his daughter and is concerned that she will have to be in foster care.  There is little, if any, reference to the direct negative impact of his offending on the complainant.

Psychological and psychiatric reports

1. A psychologist reported that the appellant's offending was marked by extreme cognitive distortion and minimisation.  His accounts of his motives for acting as he did were described as naïve attempts at reducing his culpability and minimising the self‑serving pleasure that he gained from the acts.  He was described as having an extreme and deviant interest in observing others sexually assault and degrade his daughter, at times becoming so excited that he became directly involved. 

2. The psychologist said that the 'most conservative explanation' for the appellant's behaviour was that he was indifferent to the complainant's wellbeing and prioritised his own deviant sexual appetite.  Whilst a risk assessment tool produced a result that suggested that the appellant fell into a low category of recidivism risk, the psychologist expressed caution about this result.  Other factors including the pattern of offending, the careful planning and the appellant's rationalisation and minimisation of his conduct suggested a higher risk level.  The appellant's persistence despite his daughter's distress and requests to cease such behaviour was said to add 'clinical alarm'.  In these circumstances, the risk of reoffending was assessed to be 'well above the low category'. 

3. The conclusion of the psychologist was that the appellant had a very significant psychological disturbance and sexual deviancy.  Added to this is evidence of extreme callousness and disregard for the wellbeing of the complainant.  The level of cognitive distortion that the appellant applied to give himself permission to act as he did was described as being at an extreme level.  He was assessed as being suitable for treatment.  However, even if he did undertake treatment it is highly unlikely that he could ever be considered a safe presence in children's lives.

4. A psychiatrist reported that the appellant had expressed remorse and appeared to have an understanding of the gravity of his situation.  He had also expressed empathy towards his daughter, but at the same time anger at the way she had been treated by the co‑offenders.  The psychiatrist noted that there was evidence of denial and major cognitive distortions regarding his daughter's ability to be his 'friend and partner'.  The psychiatrist concluded that the appellant does not suffer from a major mental illness.  His offending was driven by his sexual interest in children in the context of a narcissistic and dependant personality structure.  The risk of sexual reoffending could only be negated by intensive treatment. 

Sentencing remarks

1. After summarising the facts, the sentencing judge said that, though money was paid for some of the photographs, it was clear that the appellant's primary motivation was not financial gain.  His Honour said that the appellant's sexual relationship with his daughter was not satisfying his needs.  He gained sexual gratification from viewing sexual conduct with his daughter.  His Honour said that some of this conduct 'involved a high degree of depravity and exploitation', including bondage, restraints and masks.

2. The sentencing judge said that following the breakdown of the appellant's relationship with his second wife an inappropriate relationship with his daughter commenced.  It was likely that the appellant's daughter had replaced his wife as a sexual partner and provider of emotional support.  The appellant then used his daughter to establish contact with other men. 

3. His Honour noted that the cognitive distortions referred to by the psychologist were also evident in the appellant's interview with police.  During that interview, when expressing regret about what had occurred, the appellant said, 'It was fun while it lasted … but it went way over the line'.  His Honour said that this indicated the degree to which the appellant's attitude to his daughter and his own sexual needs became hopelessly confused.  The appellant's attempts to characterise his daughter as fully informed showed the degree to which he had completely disregarded her welfare.

1. The sentencing judge said that he agreed with a submission by the State that, when viewed as a whole, the offending represented one of the most serious examples of sexual offending against children to have come before the courts in this State.  His Honour noted that the complainant had continued to show loyalty to the appellant during the investigation and this illustrated the extent of her vulnerability and trust.  His Honour referred to the likely lasting, and probably irreparable, consequences for the complainant.

2. As regards the appellant's pleas of guilty, these were indicated after the matter was listed for a disclosure committal hearing and after the police had compiled the disclosure brief. The pleas were not at the first reasonable opportunity for the purposes of s 9AA of the Sentencing Act. When served, the brief contained witness statements from four of the co‑offenders, each of whom had expressed a willingness to give evidence against the appellant in any trial. There was also a significant amount of objectively reliable incriminating evidence in the form of photographs, chat logs and videos. Even if the complainant was unwilling to give evidence against the appellant, the sentencing judge's assessment was that the State's case against him was a strong one. In all of these circumstances, his Honour allowed the appellant a discount of 10% pursuant to s 9AA of the Sentencing Act.

3. In imposing sentence his Honour said:

   The various counts vary in terms of the seriousness of your offending in individual offences.  But it is your treatment of your daughter over the period covered by the indictment which marks the real or essential seriousness of your conduct transcending the depravity or indecency of individual counts.  Counts 57 to 62 inclusive under the heading 'Sexual servitude' represent that overall conduct. 

Grounds

1. As noted earlier, ground 1 was abandoned at the hearing of the appeal.

2. Particular 2.1 of ground 2 was also abandoned.  The remaining grounds are as follows:

   2.The learned sentencing judge erred in his approach to the relevant sections of the Sentencing Act 1995 (the 'Act');

   Particulars

   2.2His Honour proceeded to sentence with reference to s 9AA of the Act on the basis the pleas of guilty had not been entered at the first reasonable opportunity.

   2.3He determined, when considering s 9AA of the Act, that he would only afford a 10% discount to the appellant for his pleas of guilty;

   2.4In relation to s 9AA(2) he found that, in relation to all counts, the State case was strong.

   3.The learned sentencing judge erred in imposing a total effective sentence that infringed the first limb of the principle of totality, having regard to the overall criminality involved in the various offences when viewed in their entirety and in all the circumstances of the case, including those referable to the appellant, including the pleas of guilty and his offer of assistance.

   4.The sentence of 9 years' immediate imprisonment imposed in relation to count 60 on the indictment was, in all the circumstances, manifestly excessive;

   Particulars

   4.1The plea of guilty.

   4.2The criminality involved.

   4.3The appellant's antecedents.

   4.4The sentences imposed for similar counts on the indictment.

   4.5The sentences imposed on the relevant co‑offenders.

   4.6The sentences imposed in broadly comparable cases.

Ground 2 - s 9AA discount

1. The three remaining particulars of ground 2 are connected.  In essence, the appellant argues that, contrary to the sentencing judge's finding, the pleas were entered at the first reasonable opportunity and that the sentencing judge's assessment of the prosecution case as strong was not correct.  In these circumstances it is submitted that a discount of 10% was inadequate.  The ground appears to assert two express errors, but in oral submissions counsel for the appellant also contends that the discount of 10% reveals implied error even if the asserted express errors are not found (appeal ts 12 ‑ 13).  While a single ground of appeal cannot properly assert both express and implied error, we will deal with all aspects of the appellant's contentions as to ground 2. 

2. The meaning of the phrase 'first reasonable opportunity' was considered in Rossi v The State of Western Australia [2014] WASCA 189; (2014) 47 WAR 508. In that case, McLure P said that the first opportunity for an accused to plead guilty to a charge for an indictable offence is after initial disclosure has been made under s 35 of the Criminal Procedure Act 2004 (WA), including a copy of the charges and the statement of material facts. A plea entered at this stage is known as a 'fast‑track' plea. Her Honour then went on to note that:

   However, the first opportunity is not necessarily the first reasonable opportunity to enter a plea of guilty. Whether or not it is requires an objective assessment, having regard to all relevant circumstances in the particular case, as to whether it would have been reasonable for the accused to have pleaded guilty on an earlier occasion [53].

3. In Beins v The State of Western Australia [No 2] [2014] WASCA 54 and Abraham v The State of Western Australia [2014] WASCA 151; (2014) 244 A Crim R 1, this court held the strength of the State case can be taken into account under s 9AA(2) of the Sentencing Act. A finding that a plea of guilty was entered at the first reasonable opportunity does not require that the maximum discount of 25% be given because, even in that circumstance, the discount to be given must be assessed having regard to the nature and extent of the benefits referred to in s 9AA(2) (including the strength of the prosecution case): Thomas v The State of Western Australia [2014] WASCA 202 [18].

4. In regard to the timing of the pleas the appellant relies on the first application to adduce additional evidence.  That evidence consists of an affidavit by the appellant's solicitor annexing various documents, including records from the Magistrates Court.  This is not material that was before the sentencing judge. 

5. In written submissions to the sentencing judge defence counsel simply stated that the pleas of guilty had been entered at the first reasonable opportunity.  The prosecution stated that the appellant was initially arrested on 1 April 2015 when he made some limited admissions in respect of some of the offences.  He was then further spoken to by police on 21 May 2015 and 28 July 2015 when he declined to participate in a video record of interview.  At the disclosure committal hearing on 5 February 2016, he entered pleas of guilty to all charges and was committed to the District Court for sentencing. 

6. In these circumstances it was not obvious that the pleas had been entered at the first reasonable opportunity and it would have been open to defence counsel to substantiate those claims by producing the material that is now relied on.  The onus of proving that the plea was entered at the first reasonable opportunity was on the appellant:  Rossi [74]. In any event, in our view, that material does not assist the appellant for the reasons that follow.

7. The appellant was initially charged with five charges on 2 April 2015.  A further eight charges were laid on 21 May 2015 and a further 215 were laid on 5 August 2015.  The appellant entered pleas of guilty to all 228 charges on 5 February 2016 at a disclosure committal hearing.  He appeared in the Magistrates Court on four occasions between 19 August 2015 and entering the pleas. 

8. The appellant argues that the pleas of guilty were entered at the first reasonable opportunity as it was reasonable for him to be afforded six months to obtain legal advice in relation to the large number of charges. There are several flaws in this argument. Firstly, it ignores the fact that five of the charges were preferred in April and eight in May of 2015. Much longer than six months elapsed between the preferring of those charges and the entering of the pleas. Secondly, s 9AA refers to a plea in respect of 'an offence'. This means it is necessary to consider what opportunity a person had to enter a plea at an earlier time for each individual charge. It is not appropriate to bundle all the charges together and simply assert that there was no earlier opportunity in respect of any of them.

9. Thirdly, even in relation to the charges laid on 5 August 2015, the circumstances did not sustain a conclusion that the plea made six months later was made at the first reasonable opportunity.  The disclosure brief was served in two parts, the second of which was served on 19 October 2015, almost four months before the appellant's plea of guilty.  A plea at the first reasonable opportunity does not encompass delay in order to assess the strength of the prosecution case, and to obtain legal advice in that regard:  Rossi [76] ‑ [77].

10. As regards the strength of the prosecution case, the case against the appellant was very strong.  Four of his co‑offenders made written statements against him.  As the sentencing judge correctly noted, the prosecution brief also contained a significant amount of objectively reliable incriminating evidence in the form of photographs, chat logs and videos.  The appellant also made significant admissions in his first interview with the police. 

11. It was necessary for the sentencing judge to exercise his discretion in determining the appropriate discount.  The appellant has failed to establish any express errors.  The appellant asserts that the discount given was, nevertheless, inadequate.  Where a discretionary decision is plainly unreasonable and unjust so that an error can be inferred, an appeal court can intervene.  The onus is on the appellant to show that it was not open to the sentencing judge in the proper exercise of his discretion to give the discount that he did.  In our view, that has not been established.  It was plainly open to the sentencing judge to come to the view that the prosecution case was a very strong one and that the pleas of guilty, though reasonably early, were not entered at the first reasonable opportunity.  The appellant's submission that the 10% discount was 'derisory' is mere assertion (appeal ts 13, 14).  The discount given was not plainly unjust or unreasonable.  It was within the range open to the sentencing judge on a proper exercise of his discretion.  This ground has no reasonable prospect of success and we would refuse leave in respect of it.

Ground 3 - totality

1. 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 plainly unreasonable or unjust.

2. The second limb of the totality principle requires a sentencing judge to consider whether the aggregate sentence is crushing.  It is unnecessary to consider this limb further as the appellant does not rely upon it.  The ground relies only on the first limb. 

3. The maximum penalties for each of the offences are set out in the annexure to these reasons.  Clearly they were serious offences both as to their general nature and their particular circumstances.  It is not disputed that a lengthy sentence of imprisonment was called for.  However, the appellant submits that his offending is less serious than some other cases.  He refers to three cases in this regard, being B v The Queen [2002] WASCA 236; LJH v The State of Western Australia [2016] WASCA 155 and ERA v The State of Western Australia [2013] WASCA 163. He submits that the fact that these cases involved multiple victims is an important aggravating factor that was not present in the case of the appellant.

4. As to the seriousness of the appellant's offending, it involved not only prolonged and repeated sexual abuse of a child by her natural father but also seeking out other men and making the child available to those men to be sexually abused.  Much of this occurred in the child's home.  The appellant encouraged, cajoled and compelled his daughter to comply with the abuse.  Some of the abuse involved deviant and demeaning conduct.  Video recordings and indecent photographs of the abuse were made and distributed.  On three occasions the appellant permitted his daughter to be administered a stupefying substance to better facilitate the commission of sexual offences upon her.  At all relevant times the appellant had sole custody of the child.  She was vulnerable and dependent upon him.  He abused the love and trust that she felt for him by using it to make her compliant with his sexual desires.  The child's physical safety and psychological wellbeing were disregarded or dismissed.  The breach of trust involved was both extraordinary and extreme.

5. In assessing the seriousness of a course of conduct involving child sexual offences a range of factors must be taken into account.  One of those is the number of victims involved.  Others include the number and type of offences, the period of time over which the offending continued, the age and vulnerability of the victim and the relationship between the offender and the victim (including the extent of any breach of trust):  See Dempsey v The Queen (Unreported; ConcurrentA SCt of WA; Library No 960059; 9 February 1996).  It does not follow that a course of offending involving one victim is necessarily less serious than one involving multiple victims.  Such an approach would ignore the relevance of other factors.  In this case, those other factors were of great importance and served to place this offending into a very high category of criminality.

6. One of the most serious aspects of the offending, as the sentencing judge properly recognised, was that the appellant compelled the complainant to provide sexual services to a number of other men. This was reflected in the sexual servitude charges. The offence of sexual servitude is contained in s 331B of the Criminal Code.  That section was introduced in 2004 and became operative on 21 May 2004:  Criminal CodeAmendment Act 2004 (No 4 of 2004).  Sentences imposed for that offence have not been considered in other cases in this court to date.  That is a significant distinguishing feature of this case.  For that reason it is relevant to consider the nature and seriousness of this type of offence.

7. Section 331B provides that:

   A person who compels another person to provide or to continue to provide a sexual service is guilty of a crime and is liable -

   (a)if the other person is a child or an incapable person, to imprisonment for 20 years; or

   (b)otherwise, to imprisonment for 14 years.

8. Section 331A provides that the phrase 'sexual service' as it appears in s 331B means 'the use or display of the body of the person providing the service for the sexual arousal or sexual gratification of others. A 'child' means a person under the age of 18 years. As the complainant was a child at all relevant times, the maximum penalty for each of the sexual servitude offences in this case was 20 years' imprisonment. That maximum penalty is equivalent to the highest penalties for the most serious offences in ch XXI 'Sexual Offences' of the Criminal Code.

9. The Hon Attorney General in his second reading speech in respect of the Bill which introduced s 331B said:

   Part 6 of the Bill seeks to address the increasing prevalence of the offence of 'sexual servitude'. The expression 'sexual servitude' refers to the degrading practice of placing women, and in some instances children, under contract of so-called 'debt bondage' for the purposes of the sexual gratification or sexual arousal of others. The victims of this trade are usually from countries that are less developed than Australia, and, at the time of their recruitment, they are often unaware that they will be required to provide sexual services for money. Australia has obligations under a wide range of international instruments to prohibit servitude and the trafficking in persons for the purpose of sexual exploitation. These include the 1979 Convention on the Elimination of all Forms of Discrimination Against Women, the 1989 Convention on the Rights of the Child and the 1948 Universal Declaration of Human Rights.

   In November 1998 the Model Criminal Code Officers Committee of the Standing Committee of Attorneys-General released its report on Slavery which proposed the enactment of legislation relating to slavery offences and sexual servitude. Since the release of the report, the Standing Committee of Attorneys-General has agreed to the enactment of Commonwealth and State legislation and the Commonwealth Parliament has enacted the Criminal Code Amendment (Slavery and Sexual Servitude) Act 1999. As the Commonwealth legislation is limited so as to mainly target offences in which part of the offence takes place outside of Australia, there is still a need to enact State legislation, particularly in the area of sexual servitude, where such offences take place wholly or partly within a State or Territory. To this end, legislation prohibiting sexual servitude has been introduced in the Australian Capital Territory, South Australia and New South Wales.

10. Whilst it is apparent from this that the anticipated victims were women and children who had been 'recruited' from overseas, the terms of the offence are not so limited.  The reality is that a relationship of sexual servitude can occur wherever an offender is in a position to compel another person to provide sexual services to others.  That power imbalance is not confined to women or children from other countries whose poverty and circumstances make them vulnerable.  It can also arise, as here, where a father has sole custody of a child who is vulnerable to and dependent on the father.  In each case it is the element of compulsion that is the essential gravamen of the offence.

11. The general approach to sentencing for offences involving the sexual abuse of children was set out by Buss JA in The State of Western Australia v PJW [2015] WASCA 113:

    It is well-established that in cases of intra-familial sexual abuse, matters personal to the offender are of less mitigatory weight than might otherwise be the case.  The fact that an offender is otherwise of good character has only little weight because the offences are of a kind that, until revealed, generally do not impact on other people or upon their perception of the offender.  See MPD v The State of Western Australia [2008] WASCA 57 [58] (Miller JA, Wheeler & Buss JJA agreeing).

    The guidance afforded by comparable cases is flexible rather than rigid.  The mere fact a sentence is within the range of other sentences imposed for similar offending does not necessarily establish that there was an appropriate exercise of the sentencing discretion in the particular case.  Similarly, the mere fact a sentence is outside the range does not necessarily establish that the exercise of the sentencing discretion in the particular case miscarried. 

    A sentencing range for comparable offences is merely one of the factors to be taken into account in deciding whether an individual sentence is manifestly inadequate or a total effective sentence infringes the first limb of the totality principle.  A range of sentences customarily imposed is of significance for the purpose of ensuring broad consistency in the sentencing of offenders in broadly comparable cases.  However, a sentencing range for comparable cases does not fix the range of a sound exercise of the sentencing discretion in a particular case.

    When this court dismisses an appeal against sentence, and when it allows an appeal against sentence and resentences the offender, this court's decision on the sentencing outcome does not, of itself, fix the upper or lower limit of the range.  

    There is no 'tariff' for offences of the kind committed by the respondent (or for sex offences generally) because of the great variation that is possible in the circumstances of the offending and the offenders.  The sentence to be imposed in a particular case depends on its individual facts and circumstances, having regard to the maximum penalty and all relevant sentencing factors.  See The State of Western Australia v Akizuki [2008] WASCA 267; (2008) 192 A Crim R 373 [3], [67] - [69] (Steytler P); Juma v The State of Western Australia [2011] WASCA 54 [37] - [38] (McLure P, Newnes JA & Mazza J) [36] ‑ [39].

1. Reference to a small number of cases is not of great assistance in considering whether the total effective sentence in this case breaches the first limb of the totality principle.  A few cases will provide little guidance as to the limits of sentencing discretion.  In any event, the circumstances of this offending are so unusual that it is difficult to draw guidance from other cases.  We will, however, refer to the three cases referred to by the appellant. 

2. In B v The Queen, the offender pleaded guilty to four counts of having a sexual relationship with a child under the age of 16 years.  Each count related to a different natural child of the offender.  The offending occurred over a nine‑month period when the children were aged between 3 and 6 years old.  The offender had sole custody of the children at the time.  He was not working and was abusing alcohol.  He had been the victim of sexual abuse as a child.  The offending consisted of repeated acts of penetration against each of the children.  He was sentenced to a total effective sentence of 20 years' imprisonment (which is equivalent to 13 years and 4 months' imprisonment under the current sentencing regime).  An appeal against that sentence was dismissed.

3. In LJH v The State of Western Australia, the offender pleaded guilty to 26 counts of sexual penetration of a de facto child under the age of 16 years, two counts of procuring a de facto child under the age of 16 to engage in sexual behaviour, 13 counts of indecently recording a de facto child under the age of 16 and two counts of possession of child exploitation material.  There was one victim in that case who was aged between 14 and 15 at the time of the offences, which continued over a two‑year period.  The offending included various acts of penetration as well as video and photographic recording of those sexual acts.  The pleas of guilty were entered at the first reasonable opportunity, a little over a week after the offender was charged.  On appeal, the total effective sentence of 13 years' imprisonment was reduced to 10 years.

4. In ERA v The State of Western Australia, the offender was convicted after trial of 21 counts of sexual offending against four girls.  This included 10 counts of indecently dealing with a child under the age of 14, 10 counts of sexual penetration of a lineal relative and one count of unlawful carnal knowledge of a child under 13.  Two of the complainants were the offender's nieces and the other two were his granddaughters.  The offences included acts of penetration.  The appellant was sentenced to a total effective sentence of 16 years' imprisonment.  This was not disturbed on appeal.

5. There are other cases involving sexual offending against children that have attracted lengthy total effective sentences.  They include GHS v The State of Western Australia [2006] WASCA 42 (14 years); KMB v The State of Western Australia [2010] WASCA 212 (14 years 6 months); SWD v The State of Western Australia [2012] WASCA 76 (14 years); GHK v The State of Western Australia [2014] WASCA 19; (2014) 238 A Crim R 178 (14 years) and RGT v The State of Western Australia [2017] WASCA 120 (16 years).

6. None of the cases referred to is truly comparable with that of the appellant.  The points of difference are so many as to make any attempt at comparison meaningless.  Among other things,  none of the cases involved offences of sexual servitude and none involved the combination of repeated sexual penetration by the appellant and his procuring of others to engage in sexual penetration with his daughter. 

7. The purpose of looking at comparable cases is to try to achieve broad consistency in sentencing.  Consistency means that like cases should be treated alike.  No benefit is to be derived from other cases of the same general type but which are different in so many and such significant respects.  The cases referred to do not support a conclusion that the appellant's total effective sentence was relevantly inconsistent with the total effective sentences imposed in other cases.  There are no comparable cases in Western Australia to provide a benchmark for the purposes of broad consistency.  The appellant received a very heavy sentence but for dreadful offences for which there is no true comparator.

8. We are satisfied that the aggregate sentence of 22 years 6 months' imprisonment bore a proper relationship to the criminality involved in all of the counts of which the appellant was convicted, viewed together, and having regard to all relevant facts and circumstances and all relevant sentencing factors (including the maximum penalties, the seriousness of the offending as a whole and all aggravating and mitigating factors).  We would not imply or infer error, based on the first limb of the totality principle, from the sentencing outcome.  It is not apparent that the aggregate sentence is plainly unreasonable or unjust.  It is a sentence that was open in the proper exercise of sentencing discretion.  We would dismiss this ground.

Ground 4 - manifest excess, count 60

1. Counts 57 ‑ 62 of the indictment each allege that between various dates the appellant compelled his daughter to provide a sexual service to the various male co‑offenders by engaging in various sexual activities with them contrary to s 331B of the Criminal Code (WA). As noted earlier, that offence is referred to as 'sexual servitude' and the maximum penalty for such an offence against a child is 20 years' imprisonment.

2. Count 60, which related to the co‑offender Milbourne, attracted a sentence of 9 years' imprisonment which was made concurrent.  Accordingly, it had no practical effect on the time to be served by the appellant.  Nonetheless, the appellant submits that this sentence was manifestly excessive.  This conclusion is said to be supported by a comparison between the sentence imposed on count 60 and the sentences for other similar counts in the indictment, sentences imposed on two of the co‑offenders and sentences imposed in broadly comparable cases.

3. As regards the sentences imposed for similar counts on the indictment, the following sentences were imposed for the other sexual servitude offences:  count 57 - 10 years; count 58 - 11 years; count 59 - 3 years 6 months; count 61 - 9 years and count 62 - 10 years' imprisonment.  The appellant submits that the offending in relation to count 60 was less serious than that relating to count 61 (which relates to the co‑offender Volmer) but attracted the same sentence.  That ignores the fact that sentencing is a discretionary exercise and fine judgments as to the relative seriousness of individual offences in a course of conduct is often not of critical importance.  Furthermore, when considering an individual sentence which forms part of a larger number it is important to take into account that individual sentences may have been affected by totality considerations.  It is an artificial exercise to examine individual sentences in isolation. 

4. As regards sentences imposed on the relevant co‑offenders, the appellant seeks to compare the total effective sentence imposed on each of the co‑offenders for their various offences with the sentence imposed on the appellant for the sexual servitude offence (count 60).  It should be noted that this is not a parity ground, nor could such a ground be raised here.  In support of this ground the appellant made a second application to adduce additional evidence.  That evidence was court records relating to the sentencing of those co‑offenders who had been dealt with by the time of the appeal hearing.  The aggregate sentences in each case were as follows:  Clegg -      12 years 9 months; Beer - 7 years; Clarke ‑ 3 years; Milbourne - 5 years 3 months and Volmer - 10 years 6 months. 

5. The appellant in particular relies on what is said to be inconsistency between the aggregate sentence received by Milbourne of 5 years 3 months and the 9 year sentence the appellant received on count 60.  Before turning to the utility of this comparison, it should be noted that Milbourne received a higher discount for his guilty pleas (17.5%).  He also received a 20% discount for assistance with the authorities (he, like some of the other co‑offenders, having  agreed to give evidence against the appellant).  Nevertheless the appellant suggests that it is possible to calculate that the starting point for Milbourne was 8 to 9 years, whereas the starting point for the appellant was 10 to 11 years.  We do not accept that such a calculation is possible.  In any event, the comparison wrongly assumes that the offences committed by the appellant and Milbourne are equivalent and that their personal circumstances were materially the same.

6. The appellant also relies on the sentence of 10 years and 6 months imposed on Volmer.  The argument in this regard is convoluted.  Volmer received a combined discount for pleading guilty and promised cooperation of 40%.  The appellant submits that the criminality involved in the offending involving Volmer was higher than that involving Milbourne and that that is reflected in their sentences, but not in the sentences imposed on the appellant for the relevant sexual servitude offences (both of which were 9 years).  Of course one flaw in this argument is that it may suggest that the sentence on count 61 was too low rather than that on count 60 being too high.  But, in any event, this again is an exercise in futility because it is not a comparison of like offending.

7. The premise in the appellant's submissions that the conduct involved in the co‑offenders' offending is equivalent to that in the relevant sexual servitude offence is simply wrong.  It ignores the fact that a sexual servitude offence is more than the sum of the individual acts that it relates to.  The gravity of such an offence is that it incorporates compulsion on the victim to provide sexual services to another.  That element of compulsion and involvement of a third person is not an element of the individual offences.  Furthermore, each offence of sexual servitude formed part of a larger course of abuse.  That context was a seriously aggravating circumstance that applied to the appellant but not the co‑offenders.

8. As regards comparable cases, the appellant referred to DKA v The State of Western Australia [2015] WASCA 112; LFG v The State of Western Australia [2015] WASCA 88; (2015) 48 WAR 178 and The State of Western Australia v PJW [2015] WASCA 113. It is unnecessary to refer to the facts of those cases. None of them involved an offence of sexual servitude. They are not meaningfully comparable. In any event, three cases is an insufficient foundation for identifying patterns of sentences customarily imposed.

9. The sentence of 9 years' imprisonment for count 60 was not manifestly excessive.  In other words, when the sentence for count 60 is viewed from the perspective of the maximum penalty (20 years' imprisonment) and taking into account all relevant facts and circumstances and all relevant sentencing factors (including the seriousness of the offence, the vulnerability of the complainant, the importance of appropriate punishment and personal and general deterrence as sentencing considerations and the matters of mitigation) the length of the term of imprisonment was not plainly unreasonable or unjust.

10. There is no merit in ground 4 and we would refuse leave in respect of it.

Conclusion

1. We would make the following orders:

   1.Extension of time granted.

   2.Applications to adduce additional evidence refused.

   3.Leave to appeal in respect of grounds 2 and 4 refused.

   4.Appeal dismissed

Annexure A

Count	Offence Date	Offence	Maximum Penalty	Term Imposed	Concurrent/Cumulative
Count 1 s 320(2)	Unknown between 1 Jan 13 ‑ 23 Nov 13	Procure sexual penetration of a child under 13	20 years	2 years 8 months	Concurrent
Count 2 s 320(4)	Unknown between 1 Jan 13 ‑ 23 Nov 14	Procure indecent dealings with a child under 13	10 years	2 years	Concurrent
Count 3 s 320(4)	Unknown between 1 Jan 13 ‑ 23 Nov 14	Procure indecent dealings with a child under 13	10 years	2 years 3 months	Concurrent
Count 4 s 320(2)	Unknown between 1 Jan 13 ‑ 23 Nov 14	Procure sexual penetration of  a child under 13	20 years	3 years	Concurrent
Count 5 s 320(4)	Unknown between 24 Nov 13 ‑ 23 Nov 2014	Procure indecent dealings with a child under 13	10 years	1 year 10 months	Concurrent
Count 6 s 320(2)	Unknown between 24 Nov 13 ‑ 23 Nov 2014	Procure sexual penetration of  a child under 13	20 years	2 years 8 months	Concurrent
Count 7 s 320(4)	Unknown between 24 Nov 13 ‑ 23 Nov 2014	Procure indecent dealings with a child under 13	10 years	1 year 10 months	Concurrent
Count 8 s 320(2)	Unknown between 24 Nov 13 ‑ 23 Nov 2014	Procure sexual penetration of a child under 13	20 years	3 years	Concurrent
Count 9 s 329(6)	Unknown between 1 Jan 13 ‑ 23 Nov 2014	Indecently recorded a child who was a lineal relative	10 years	2 years 3 months	Concurrent
Count 10 s 219(2)	Unknown between 1 Mar 13 ‑ 10 Mar 2015	Distributed child exploitation material	10 years	2 years 3 months	Concurrent
Count 11 s 219(2)	Unknown between 1 Mar 13 ‑ 10 Mar 2015	Distributed child exploitation material	10 years	14 months	Concurrent
Count 12 s 321(2)	Unknown between 1 Mar 14 ‑ 31 Mar 2015	Procure sexual penetration of a child over 13 and under 16, where child under care, supervision or authority of the offender	20 years	3 years	Concurrent
Count 13 s 321(2)	Unknown between 1 Mar 15 ‑ 31 Mar 2015	Procure sexual penetration of a child over 13 and under 16, where child under care, supervision or authority of the offender	20 years	2 years 8 months	Concurrent
Count 14 s 321(2)	Unknown between 1 Mar 15 ‑ 31 Mar 2015	Procure sexual penetration of a child over 13 and under 16, where child under care, supervision or authority of the offender	20 years	2 years 8 months	Concurrent
Count 15 s 321(4)	Unknown between 1 Mar 53 ‑ 31 Mar 2015	Indecent dealings with a child over 13 and under 16, where child under care, supervision or authority of the offender	10 years	1 year 6 months	Concurrent
Count 16 s 321(4)	Unknown between 1 Mar 15 ‑ 31 Mar 2015	Indecent dealings with a child over 13 and under 16, where child under care, supervision or authority of the offender	10 years	1 year 6 months	Concurrent
Count 17 s 321(2)	Unknown between 1 Mar 15 ‑ 31 Mar 2015	Sexually penetrated a child over 13 and under 16, where child under care, supervision or authority of the offender	20 years	4 years 6 months	Concurrent
Count 18 s 321(2)	Unknown between 1 Mar 15 ‑ 31 Mar 2015	Procure sexual penetration of a child over 13 and under 16, where child under care, supervision or authority of the offender	20 years	3 years	Concurrent
Count 19 s 321(2)	Unknown between 1 Mar 15 ‑ 31 Mar 2015	Sexually penetrated a child over 13 and under 16, where child under care, supervision or authority of the offender	20 years	4 years 6 months	Concurrent
Count 20 s 320(6)	3 Mar 14	Indecently record a child under 13	10 years	2 years 3 months	Concurrent
Count 21 s 320(6)	3 Mar 14	Indecently record a child under circumstances of aggravation	10 years	2 years 3 months	Concurrent
Count 22 s 320(6)	3 Mar 14	Indecently record a child under circumstances of aggravation	10 years	2 years 3 months	Concurrent
Count 23 s 320(4)	3 Mar 14	Procure indecent dealings with a child under 13	10 years	1 year 6 months	Concurrent
Count 24 s 320(4)	3 Mar 14	Procure indecent dealings with a child under 13	10 years	1 year 6 months	Concurrent
Count 25 s 320(4)	3 Mar 14	Procure indecent dealings with a child under 13	10 years	1 year 6 months	Concurrent
Count 26 s 320(4)	3 Mar 14	Procure indecent dealings with a child under 13	10 years	1 year 6 months	Concurrent
Count 27 s 320(2)	3 Mar 14	Sexual penetration of a child under 13	20 years	1 year 9 months	Concurrent
Count 28 s 320(2)	3 Mar 14	Sexual penetration of a child under 13	20 years	2 years	Concurrent
Count 29 s 320(2)	3 Mar 14	Sexual penetration of a child under 13	20 years	2 years	Concurrent
Count 30 s 320(2)	3 Mar 14	Sexual penetration of a child under 13	20 years	3 years	Concurrent
Count 31 s 204A(2)	3 Mar 14	With intent to commit a crime, showed offensive material to a child	5 years	10 months	Concurrent
Count 32 s 320(6)	Unknown between 1 Feb 14 ‑ 30 May 14	Procure to indecently record a child under 13	10 years	1 year 6 months	Cumulative
Count 33 s 320(4)	Unknown between 1 Feb 14 ‑ 30 May 14	Procure indecent dealings with a child under 13	10 years	10 months	Concurrent
Count 34 s 320(4)	Unknown between 1 Feb 14 ‑ 30 May 14	Procure indecent dealings with a child under 13	10 years	2 years 4 months	Concurrent
Count 35 s 320(4)	Unknown between 1 Feb 14 ‑ 30 May 14	Procure indecent dealings with a child under 13	10 years	10 months	Concurrent
Count 36 s 320(4)	Unknown between 1 Feb 14 ‑ 30 May 14	Procure indecent dealings with a child under 13	10 years	11 months	Concurrent
Count 37 s 320(5)	Unknown between 1 Feb 14 ‑ 30 May 14	Procure, encourage or incite a child under 13 to do an indecent act	10 years	11 months	Concurrent
Count 38 s 320(4)	Unknown between 1 Feb 14 ‑ 30 May 14	Procure indecent dealings with a child under 13	10 years	11 months	Concurrent
Count 39 s 320(4)	Unknown between 1 Feb 14 ‑ 30 May 14	Procure indecent dealings with a child under 13	10 years	1 year 6 months	Concurrent
Count 40 s 320(2)	Unknown between 1 Feb 14 ‑ 30 May 14	Procure sexual penetration of a child under 13	20 years	2 years 4 months	Concurrent
Count 41 s 320(2)	Unknown between 1 Feb 14 ‑ 30 May 14	Procure sexual penetration of a child under 13	20 years	2 years 6 months	Concurrent
Count 42 s 320(2)	Unknown between 1 Feb 14 ‑ 30 May 14	Procure sexual penetration of a child under 13	20 years	3 years	Concurrent
Count 43 s 320(4)	Unknown between 1 Feb 14 ‑ 30 May 14	Procure indecent dealings with a child under 13	10 years	11 months	Concurrent
Count 44	Unknown between 24 Nov 14 ‑ 31 Mar 15	Sexual penetration of a child over 13 and under 16	Discont‑ inued
Count 45  s 320(4)	Unknown between 1 Jan 14 ‑ 23 Nov 14	Procure indecent dealings with a child under 13	10 years	11 months	Concurrent
Count 46 s 320(4)	Unknown between 1 Jan 14 ‑ 23 Nov 14	Procure indecent dealings with a child under 13	10 years	1 year 6 months	Concurrent
Count 47 s 320(4)	Unknown between 1 Jan 14 ‑ 23 Nov 14	Procure indecent dealings with a child under 13	10 years	1 year 6 months	Concurrent
Count 48 s 293	Unknown between 1 Jan 14 ‑ 23 Nov 14	Stupefying in order to coming an indictable offence	20 years	1 year 6 months	Concurrent
Count 49 s 320(4)	Unknown between 1 Jan 15 ‑ 1 Apr 15	Procure indecent dealings with a child under 13	10 years	11 months	Concurrent
Count 50 s 321(2)	Unknown between 1 Jan 15 ‑ 1 Apr 15	Procure sexual penetration of a child over 13 and under 16	14 years	2 years 8 months	Concurrent
Count 51 s 293	Unknown between 1 Jan 15 ‑ 1 Apr 15	Stupefying in order to commit an indictable offence	20 years	1 year 6 months	Concurrent
Count 52 s 321(4)	Unknown between 1 Jan 15 ‑ 1 Apr 15	Procure indecent dealings with a child over 13 and under 16	7 years	1 year 7 months	Concurrent
Count 53 s 321(2)	Unknown between 1 Jan 15 ‑ 1 Apr 15	Procure sexual penetration of a child over 13 and under 16	14 years	3 years	Concurrent
Count 54 s 321(4)	Unknown between 1 Jan 15 ‑ 1 Apr 15	Procure indecent dealings with a child over 13 and under 16	7 years	11 months	Concurrent
Count 55 s 321(2)	Unknown between 1 Jan 15 ‑ 1 Apr 15	Procure sexual penetration of a child over 13 and under 16	14 years	3 years	Concurrent
Count 56 s 293	Unknown between 1 Jan 15 ‑ 1 Apr 15	Stupefying in order to commit an indictable offence	20 years	1 year 6 months	Concurrent
Count 57 s 331B	Unknown between 1 Jan 13 ‑ 24 Nov 14	Compelled another person to provide a sexual service, and that that person was a child	20 years	10 years	Cumulative
Count 58 s 331B	Unknown between 1 Jan 13 ‑ 1 Apr 15	Compelled another person to provide a sexual service, and that that person was a child	20 years	11 years* Head Sentence
Count 59 s 331B	Unknown between 1 Feb 14 ‑ 30 May 14	Compelled another person to provide a sexual service, and that that person was a child	20 years	3 years 6 months	Concurrent
Count 60 s 331B	Unknown between 1 Jan 14 ‑ 31 Mar 15	Compelled another person to provide a sexual service, and that that person was a child	20 years	9 years	Concurrent
Count 61 s 331B	Unknown between 1 Jan 14 ‑ 31 Mar 15	Compelled another person to provide a sexual service, and that that person was a child	20 years	9 years	Concurrent
Count 62 s 331B	Unknown between 1 Mar 15 ‑ 31 Mar 15	Compelled another person to provide a sexual service, and that that person was a child	20 years	10 years	Concurrent