The State of Western Australia v BKJ
[2018] WASCA 136
•8 AUGUST 2018
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: THE STATE OF WESTERN AUSTRALIA -v- BKJ [2018] WASCA 136
CORAM: BUSS P
MAZZA JA
MITCHELL JA
HEARD: 10 OCTOBER 2017
DELIVERED : 8 AUGUST 2018
FILE NO/S: CACR 206 of 2016
BETWEEN: THE STATE OF WESTERN AUSTRALIA
Appellant
AND
BKJ
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram: STEVENSON DCJ
File Number : IND 213 of 2016
Catchwords:
Criminal law - State appeal against sentence - Respondent convicted after early plea of guilty of 58 counts of child sex offending, two counts of possession of child exploitation material and one count of distributing child exploitation material - Voluntary disclosure - Whether individual sentences manifestly inadequate - Totality principle
Legislation:
Criminal Appeals Act 2004 (WA), s 31(4)(a), s 41(4)(b)
Criminal Code (WA), s 219(2), s 220, s 329(2), s 329(3), s 329(4), s 329(5), s 329(6), s 329(9)(a), s 329(10)(a)
Sentencing Act 1995 (WA), s 9AA
Result:
Leave to appeal granted on all grounds
Appeal dismissed
Category: B
Representation:
Counsel:
| Appellant | : | Ms A L Forrester SC |
| Respondent | : | Mr M R Gunning |
Solicitors:
| Appellant | : | Director of Public Prosecutions (WA) |
| Respondent | : | Gunning Young Barristers & Solicitors |
Case(s) referred to in judgment(s):
B v The Queen [2002] WASCA 236
Barbaro v The Queen [2014] HCA 2; (2014) 253 CLR 58
C v The State of Western Australia [2006] WASCA 261
Caulfield v The State of Western Australia [No 2] [2011] WASCA 230
Chan v The Queen (1989) 38 A Crim R 337
DKA v The State of Western Australia [2015] WASCA 112
ERA v The State of Western Australia [2013] WASCA 163
FWB v The State of Western Australia [2016] WASCA 118
Gaskell v The State of Western Australia [2018] WASCA 8
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
Giglia v The State of Western Australia [2010] WASCA 9
GJT v The State of Western Australia [2011] WASCA 263; (2011) 214 A Crim R 272
Hill v The State of Western Australia [2014] WASCA 150
House v The King [1936] HCA 40; (1936) 55 CLR 499
KMB v The State of Western Australia [2010] WASCA 212
LJH v The State of Western Australia [2016] WASCA 155; (2016) 261 A Crim R 355
Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665
Munda v The State of Western Australia [2013] HCA 38; (2013) 249 CLR 600
R v Coultas [2002] WASCA 131
RGT v The State of Western Australia [2017] WASCA 120
Roffey v The State of Western Australia [2007] WASCA 246
Samson v The State of Western Australia [2011] WASCA 173
SCN v The State of Western Australia [2017] WASCA 138
SWD v The State of Western Australia [2012] WASCA 76
The State of Western Australia v McCarthy [2014] WASCA 210; (2014) 246 A Crim R 86
The State of Western Australia v PJW [2015] WASCA 113
The State of Western Australia v Wilson [2015] WASCA 119
JUDGMENT OF THE COURT:
This is a State appeal against sentence.
The respondent pleaded guilty on the fast‑track system to 61 sexual offences, the vast majority of which were committed against his natural daughter, C, who was, at all relevant times, under the age of 16 years, being:
(a)24 counts of indecently recording C;
(b)19 counts of sexual penetration of C;
(c)9 counts of indecently dealing with C;
(d)3 counts of procuring C to sexually penetrate the respondent;
(e)3 counts of procuring C to do an indecent act in relation to the respondent;
(f)2 counts of possession of child exploitation material (CEM); and
(g)1 count of distributing CEM.
On 9 December 2016, the respondent was sentenced to a total effective term of 14 years' imprisonment with eligibility for parole, to commence on 13 August 2015.[1] The individual details of the offences and the sentences that were imposed are set out in the annexure to these reasons.
[1] ts 75.
The appellant relies on four grounds of appeal. Ground 1 alleges that the individual sentences of imprisonment in relation to the 19 counts of sexual penetration of C and the three counts of procuring C to sexually penetrate the respondent were manifestly inadequate. Ground 2 alleges that the sentence imposed on count 1, which alleged that the respondent indecently dealt with C, was manifestly inadequate. Ground 3 alleges that the individual sentence on count 59, an offence of distributing CEM, was manifestly inadequate. Count 4 alleges that the total effective sentence infringed the first limb of the totality principle.
The question of leave to appeal in respect of each of these grounds was referred to the hearing of the appeal.[2]
[2] Order Mazza JA, 7 April 2017, AB 6.
The facts
The respondent is the biological father of his daughter, C, who was born in February 2000. C was aged between 2 and 12 years during the offending period.[3] The respondent was born in November 1961 and was between 40 and 53 years of age in that period.
[3] The counts were pleaded on the indictment as occurring on various dates between February 2002 and February 2013, being one day before C's 13th birthday.
The respondent and C's mother lived together with C in a country town in the south of Western Australia.[4]
Counts 1 to 7
[4] ts 20.
Counts 1 to 7 would not have come to light had the respondent not admitted to them during a lengthy and detailed electronic video record of interview (EROI) with police, which he had requested, and which took place on 18 August 2015.
On an occasion between C's second and third birthday, the respondent undressed the victim and then himself. He rubbed and fondled C's stomach, back, legs, vagina and buttocks, before masturbating and ejaculating on C's buttocks (count 1).[5]
[5] ts 20.
On an occasion, when the victim was aged 7, the respondent had C undress herself. As she did so, the respondent removed his clothing. The respondent directed C to get down on her hands and knees. He then inserted the top of a plastic squeeze bottle or a soft drink bottle which contained water into C's anus in order to remove any faecal matter (count 2).[6] He then put a lubricant onto his fingers and inserted one finger into C's anus, moving it around before inserting a second finger (count 3).[7] After removing his fingers, he knelt behind C and pushed his erect penis into C's anus until he ejaculated (count 4). After ejaculating, he cleaned C's bottom, using a towel and water. He then told C to get dressed.[8]
[6] ts 21.
[7] ts 21.
[8] ts 21.
On another occasion, when C was aged 7, the respondent engaged in sexual behaviour towards C which was, in all material respects, identical to the behaviour which constituted counts 2 to 4 (counts 5 to 7).[9]
Counts 8 to 55
[9] ts 21.
Counts 8 to 55 were committed against the following background. Between February 2005 and February 2013, before C turned 13 years of age, the respondent was employed as a fly‑in fly‑out worker on mine sites in the north of Western Australia. His rosters were either one week off and one week on, or two weeks off and two weeks on. The offences occurred when the respondent was on leave. Each offence was recorded on video or by digital photograph, or both. His Honour was provided with a disc (disc 1) which contained the material relevant to these counts.[10] At the hearing of the appeal, senior counsel for the appellant requested this court to view this disc (which she misdescribed as disc 2).[11] Counsel for the respondent did not object to this request. We have seen the relevant material.
[10] AB 154. The State erroneously referred to disc 3 at sentencing: ts 22.
[11] Appeal ts 11.
The respondent admitted, in his EROI on 18 August 2015, that not all of the sexual activity he engaged in with C was videoed or photographed. Further, the respondent admitted that he deleted material that he had recorded. However, he later retrieved some of the deleted material from websites to which he had uploaded that material. Thus, counts 8 to 55 were representative of the respondent's offending behaviour.[12]
Counts 8 to 11
[12] ts 22.
These offences were committed in one incident when C was aged between 7 and 10. The respondent made C undress and kneel naked on a bed. After directing her to spread her labia with her fingers, he masturbated, eventually ejaculating onto her buttocks. He then rubbed his semen over them.[13]
Counts 12 and 13
[13] ts 22.
On this occasion, C was aged between approximately 5 and 8. The respondent procured C to squat naked over an enamel basin and urinate into it. The video footage of this incident focused on C's genitals.[14]
Counts 14 and 15
[14] ts 23.
On this occasion, it is estimated C was between 7 and 11 years of age. The respondent procured C to push her right hand into his anus, up to her forearm, and then to repeat that action with her left hand. After C withdrew her left hand, the respondent got her to rub around his anus with that hand. The video file showing this offending is labelled '[The victim] fisting Daddy'.[15]
Counts 16 and 17
[15] ts 23.
These offences occurred in one incident when C was approximately 7 to 10 years of age. On this occasion, the respondent made C perform fellatio upon him. The respondent made C wear a fancy dress mask which partially obscured her face.[16] The respondent can be heard in the video footage of this incident saying:[17]
That's right. Go up and down. Lick it. Lick it on the top and [it] tastes nice.
Counts 18 and 19
[16] ts 23 - 24.
[17] ts 24.
These offences were committed in the one incident when C was aged between approximately 6 and 8 years of age. The respondent masturbated while kneeling astride C, to the point where he ejaculated over her face. The video footage shows C's eyes closed and her face tightly squeezed. The video folder described C as having 'her regular morning facial'.[18]
Counts 20 to 22
[18] ts 24.
On this occasion, C was estimated to be between 7 to 10 years of age. The respondent pushed C's left hand into his anus, up to her forearm, and, while doing so, C fondled his scrotum and testicles with her right hand. The respondent set up a digital video camera on a tripod to record this conduct.[19]
Counts 23 to 25
[19] ts 24 ‑ 25.
It is estimated that C was between 7 and 10 years of age at the time of this incident. On this occasion, the respondent procured C, who was wearing a fancy dress mask which partially obscured her face, to slap his scrotum several times with her open palm. He then directed her to rub his erect penis and perform fellatio on him.[20]
Counts 26 and 27
[20] ts 25.
C was estimated to be 12 or 13 years of age at the time of this incident. On this occasion, the respondent directed C, who was naked, to kneel with her buttocks in the air. He then penetrated her vagina from behind with his erect penis. It cannot be seen from the video recording of this incident whether the respondent wore a condom.[21]
Counts 28 and 29
[21] ts 25 - 26.
It is estimated that C was aged between 12 and 13 years when these offences were committed. On this occasion, the respondent strapped a leather‑studded collar onto C which was attached to a strap and ball gag. The respondent pressed the gag into C's mouth and then penetrated her vagina with a large dildo.[22]
Counts 30 and 31
[22] ts 26.
On this occasion, C was estimated to be between 7 and 10 years of age. The respondent made her kneel and hold her buttocks apart. While in this position, he penetrated C's anus with a carrot.[23]
Counts 32 and 33
[23] ts 26.
On this occasion, C was estimated to be between 7 and 10 years of age. The respondent made her kneel and hold her buttocks apart. While in this position, he penetrated C's anus with the handle of a screwdriver.[24]
Counts 34 and 35
[24] ts 26.
On this occasion, C was estimated to be 12 years of age. The respondent made C kneel naked on the ground. He then bound her hands to her ankles. In this position, he penetrated her vagina with one of his fingers.[25]
Counts 36 and 37
[25] ts 26 ‑ 27.
On this occasion, C was estimated to be between 7 and 9 years of age. The respondent and C were standing next to each other, naked. The respondent then directed C to perform fellatio on his erect penis, which she did.[26]
Counts 38 and 39
[26] ts 27.
On this occasion, C was estimated to be between 7 and 9 years of age. The respondent and C were on a mattress, with the respondent straddling C's torso. The respondent made C masturbate him until he ejaculated over her. The digital photograph of this act has C's eyes cut out of the image.[27]
Counts 40 and 41
[27] ts 27.
On this occasion, it is estimated C was between 7 and 9 years of age. The respondent, who was wearing only a T-shirt, had C, who was naked, lie next to him on a bed. The respondent then passionately kissed C. The digital photograph of this incident has the respondent's head cut or scratched out.[28]
Counts 42 and 43
[28] ts 27.
These offences were committed in the one incident when C was estimated to be 8 to 10 years of age. The respondent made C perform fellatio and masturbate his erect penis. The respondent photographed the act of fellatio.[29]
Counts 44 and 45
[29] ts 27.
These offences were committed when C was estimated to be 7 to 10 years of age. The respondent penetrated C's anus with a dildo and photographed it.[30]
Count 46
[30] ts 27 ‑ 28.
This offence was committed when C was estimated to be 7 to 10 years of age. The respondent made C expose her anus and vagina in a sexualised pose which he photographed.[31]
Counts 47 and 48
[31] ts 28.
On this occasion, it was estimated that C was 7 to 9 years of age. The respondent and C were together, naked, in a shower cubicle. While touching C's right breast, he masturbated until he ejaculated onto C's stomach.[32]
Count 49
[32] ts 28.
On this occasion, it was estimated that C was between 7 and 9 years of age. The respondent photographed C in a sexualised pose with her breasts and vagina exposed. The digital image showed C's face.[33]
Counts 50 and 51
[33] ts 28.
These offences were committed in one incident when it is estimated C was between 7 and 10 years of age. The respondent made C perform fellatio on his erect penis. The digital image of this act shows C wearing a fancy dress mask which partially obscured her face.[34]
Count 52
[34] ts 28.
On this occasion, it is estimated that C was between 7 and 10 years of age. The respondent took a close‑up photograph of C's exposed vagina and anus.[35]
Count 53
[35] ts 28 ‑ 29.
On this occasion, C is estimated to be between 7 and 10 years of age. The respondent photographed C when she was lying naked, capturing an image of C's upper torso and face.[36]
Counts 54 and 55
[36] ts 29.
On this occasion, C is estimated to be between 8 and 10 years of age. The respondent had C push one hand into his anus and, at the same time, with the other hand, masturbate him.[37]
Counts 56 to 58
[37] ts 29.
These offences were disclosed by C in a child witness interview on 5 August 2015.
On an occasion when C was aged approximately 9 to 12 years of age, the respondent penetrated C's vagina with his fingers and then a dildo in an attempt to make her orgasm (count 56).[38]
[38] ts 29.
On another occasion, when C was aged between 9 and 12, the respondent penetrated her vagina with a dildo, causing her pain due to the heart‑shapes protruding from the shaft of the instrument (count 57).[39]
[39] ts 29.
On another occasion, when C was aged between 9 and 10, the respondent fastened a black leather dog collar around her neck, with a leash. He made C crawl on her hands and knees (count 58). The respondent's penis was erect at the time.[40]
Counts 59 to 61
[40] ts 29 ‑ 30.
On 5 August 2015, detectives executed a search warrant at the respondent's home, when he was not present, and seized numerous computers, laptops, external hard drives and USB thumb drives.[41]
[41] ts 30.
In the course of the EROI on 18 August 2015, the respondent made admissions to producing, storing and uploading CEM involving C. He told the police about three USB thumb drives which had not been found in the search on 5 August 2015. On 19 August 2015, detectives seized these thumb drives which had been secreted on a roof bearer strut at his house.[42] Without this disclosure it is most unlikely that the three thumb drives would have been discovered.[43] Counts 59 ‑ 61 derived from the material seized from the two searches of the respondent's house.[44]
Count 59
[42] ts 30.
[43] Appeal ts 6.
[44] ts 31.
Between 28 August 2010 and 5 August 2015, the respondent caused CEM to be distributed on the worldwide web, using open source software, by uploading digital images and videos of C from his computer. The CEM consisted of images and videos from Category 3 and Category 4 on the Child Degradation Category Chart. The images and videos included video‑recordings of acts of sexual penetration by the respondent upon C. The respondent admitted uploading the material in the EROI and stated:[45]
It excited me that somebody else could see. It excited me that there were other blokes out there that were excited.
[45] Respondent's EROI, ts 124.
Other images showed acts of masturbation and ejaculation, as well as penile penetration or fellatio. The material relevant to this offence was provided in a disc marked 'Disc 2'.
Count 60
An analysis of four USB thumb drives (including the three thumb drives referred to above) and a hard drive from a computer tower revealed 13,498 CEM images ranging from Category 1 on the Child Degradation Category Chart through to Category 6. Some of these images included C and the respondent in sexual acts. They range from one image of a naked child, to other images of children masturbating or being masturbated on, through to quite graphic cartoon images in Japanese style showing young children being sexually penetrated. Next to one image is written:[46]
From fuck slut … to all the paedo perverts on paedo board and … Everyone else enjoy her.
One image showed a child who was tied up with a plastic bag over his head.[47] The material relevant to this offence was provided in a disc marked 'Disc 3'.
Count 61
[46] ts 31.
[47] ts 31. The prosecutor erroneously described this image as being part of count 59. The image is to be found on disc 3, which is relevant to count 60.
Police found a further 408 digital files. 174 of these consisted of videos[48] from Category 4 and Category 5 on the Child Degradation Category Chart, including 31 showing sexual activity between the respondent and C. One digital video‑recording showed a toddler being subjected to extreme sexual torture by an adult female. Another video showed an adult male choking a baby by forcing his erect penis into the child's mouth. This continued until the male ejaculated.[49] The material relevant to this offence was provided on a disc marked 'Disc 4'.[50]
[48] The prosecutor misdescribed these as images.
[49] ts 31.
[50] ts 32.
C's child witness interviews
C's child witness interviews took place on 5 and 6 August 2015. It is clear from those interviews that, because of the frequency of the sexual abuse, the period over which it occurred and her young age, C found it difficult to recall all the specific acts committed by the respondent. As we have already indicated, C was able to recall some specific acts with which the respondent was later charged.[51]
[51] C's interview transcript, 5 August 2015, pages 6, 18 and 36; and C's interview transcript, 6 August 2015, page 44.
C was plainly aware that the respondent recorded some acts of abuse and produced videos of her that went online.[52] She recalled that the respondent told her about the number of people who 'liked' one of the videos and how he seemed 'happy' about that.[53]
[52] C's interview transcript, 5 August 2015, pages 11, 15 ‑ 17; and C's interview transcript, 6 August 2015, page 40.
[53] C's interview transcript, 5 August 2015, page 15.
C recalled being anally and vaginally penetrated by the respondent, including the use of dildos and acts of cunnilingus and fellatio. She said she inserted her hand into his anus.[54] Amongst the sexual activity C said was 'usual' were sexual acts the respondent did to himself and sexual acts the respondent did to her.[55] C remembered occasions in which the respondent made her watch pornographic videos.[56]
[54] C's interview transcript, 5 August 2015, page 39.
[55] C's interview transcript, 6 August 2015, page 21.
[56] For example, C's interview transcript, 6 August 2015, pages 9, 13 ‑ 14.
C said that she first disclosed what was happening to her to a friend, A, when she was in, she thought, year 2. However (understandably), her friend did not comprehend what she was told. Later, in about July 2015, A spoke to her and urged her to 'tell someone'. C told another friend, O. Shortly after that, the police were notified.[57]
[57] C's interview transcript, 6 August 2015, pages 42 ‑ 44.
The respondent's EROIs
On 13 August 2015, the respondent was interviewed by police with respect to alleged offences committed against C. The respondent was selective in his answers and made no admissions of any specific offence. At the completion of that interview, he was arrested, charged with some offences and remanded in custody. Later, he contacted the investigating officer, Detective Sergeant Fjastad, and requested another interview. On 18 August 2015, that interview took place. The interview took approximately four hours.[58] In it, the respondent admitted, among other things, that:
[58] ts 32; Respondent's EROI, ts 7 - 8.
(a)When C was about 2 years of age, he began to sexually abuse her and that he continued to 'sporadically' do so until she was 12.[59]
[59] Respondent's EROI, ts 9.
(b)There was a period, close to a year, when C was aged 5 to 7 years, where he 'tried to stop everything' because he understood that what was occurring was something that C did not want to partake in.[60] He knew that what he was doing was illegal.[61]
[60] Respondent's EROI, ts 15 ‑ 16.
[61] Respondent's EROI, ts 16.
(c)His sexual activity with C culminated in full sexual intercourse with her on three occasions when she was 12.[62]
[62] Respondent's EROI, ts 15.
(d)He tried to make his sexual encounters with C appear a normal activity.[63]
[63] Respondent's EROI, ts 18.
(e)He became fixated on C and got into a state of mind where he needed to have sex with her.[64]
[64] Respondent's EROI, ts 23.
(f)He had a sexual preference for young children from about the age of 5 to 8 years.[65]
[65] Respondent's EROI, ts 26 ‑ 27.
(g)He looked at naked children in 'naturist' magazines, but nothing progressed 'until [C] came along and … the whole situation just made everything so much easier'.[66]
[66] Respondent's EROI, ts 27.
(h)From the age of 2, he wanted C to be aware of what he was doing to her.[67]
[67] Respondent's EROI, ts 41.
(i)He stopped engaging in sexual conduct with C before she turned 13 because he was only interested in having sexual intercourse with her before she 'turned into a teen'.[68] On one such occasion he told C that he was glad 'we could do this… before you became a teen'.[69]
[68] Respondent's EROI, ts 43.
[69] Respondent's EROI, ts 44.
(j)On each occasion he had sexual intercourse with C he wore a condom.[70]
[70] Respondent's EROI, ts 46 ‑ 49.
(k)Prior to engaging in sexual intercourse with C, he had, 'over a period of a couple of years', used a variety of dildos to 'try and enter her and… stretch her vagina'.[71]
[71] Respondent's EROI, ts 60.
(l)He first began using dildos on C when she was about 6 years of age.[72] However, it was not until she was 9 years of age before he was able to actually penetrate her using a dildo.[73]
[72] Respondent's EROI, ts 64.
[73] Respondent's EROI, ts 65.
(m)On two instances he penetrated C's anus with his penis when she was approximately 7 1/2 years of age.[74]
[74] Respondent's EROI, ts 71 ‑ 75.
(n)The sexual activity he engaged in with C was 'always … strictly for my own satisfaction'.[75]
[75] Respondent's EROI, ts 90.
(o)He had shown C pornography four to six times and perhaps on more occasions.[76] He said he found it 'quite exciting' to show C pornography.[77] The respondent said that he showed pornography to C from 7 years of age onward.[78]
[76] Respondent's EROI, ts 97.
[77] Respondent's EROI, ts 99.
[78] Respondent's EROI, ts 106.
(p)He began recording sexual acts involving C when she was 5 or 6 years of age.[79] He commenced by recording acts in which he would ejaculate onto her.[80] He did this for his own sexual gratification.[81]
(q)He looked at the images and videos that he took of C 'fairly often', 'pretty much every time I came home'.[82] He showed C some of the images and videos he had recorded. He did this because it was 'exciting for me'.[83]
(r)He destroyed all of the original images and videos he had stored on various devices kept at his home '[a] couple of years ago' because he 'went through a fair bit of angst'.[84] He told the police that the only 'stuff' he presently possessed was material that he had previously uploaded onto the internet but later (after the destruction of the material at home) retrieved by downloading it again.[85]
(s)That on the various devices the police discovered in his home in the search on 5 August 2015, there was 'stuff that [C] is on'.[86] The respondent's attention was drawn to a Seagate hard drive and three thumb drives found in the computer area of his home. The respondent said that those thumb drives 'probably won't have anything on them at all'.[87]
(t)That there were three thumb drives that the police had not discovered during the search of the respondent's premises on 5 August 2015. The respondent told the police where the three thumb drives were located. He also told the police that the thumb drives contained 'child porn' and recordings of C which he had 'been able to reclaim off … the net'.[88]
(u)He had uploaded material depicting C onto a named website.[89] He said that he had uploaded photos and videos involving C 'over a number of years'.[90] He said that he uploaded movies, including 'the last time that we actually had sex'.[91] He said that the material showing C was recorded when C was between 5 and 12 years of age.[92] He said that he did not show 'faces', but there was an image taken from a video he had seen in which he recognised C.[93] The respondent said that it gave him sexual gratification to upload material involving C onto the internet because:[94]
It excited me that there were other blokes out there that were excited.
(v)He had told C how many people had viewed some of the images that he had uploaded onto the internet.[95]
[79] Respondent's EROI, ts 108.
[80] Respondent's EROI, ts 109.
[81] Respondent's EROI, ts 110.
[82] Respondent's EROI, ts 111.
[83] Respondent's EROI, ts 112.
[84] Respondent's EROI, ts 115.
[85] Respondent's EROI, ts 115.
[86] Respondent's EROI, ts 116.
[87] Respondent's EROI, ts 117.
[88] Respondent's EROI, ts 117 ‑ 119.
[89] Respondent's EROI, ts 120.
[90] Respondent's EROI, ts 121.
[91] Respondent's EROI, ts 121.
[92] Respondent's EROI, ts 121.
[93] Respondent's EROI, ts 122 ‑ 123.
[94] Respondent's EROI, ts 124.
[95] Respondent's EROI, ts 128.
The respondent's antecedents
The respondent was born in Queensland in November 1961. He was 55 years of age when he was sentenced. He was brought up in Queensland. His father managed cattle stations and, as a result, the respondent lived with his family in largely remote and isolated properties. Although never the subject of abuse, the respondent never felt supported and nurtured by his parents.[96]
[96] ts 63.
The respondent left school early in year 11 and worked for a period of about five years as a storeman and clerk. He then travelled around Australia before settling in Western Australia, where he worked and lived in a mining town for the next five years. He remained in the mining industry for the next 20 years as a process technician and then a supervisor, effectively on a fly‑in fly‑out basis.[97]
[97] ts 63.
The only significant intimate relationship the respondent has had is with C's mother.[98]
[98] Psychological report, page 4.
The respondent has no prior offending history.[99]
[99] ts 66.
The psychological report
The learned sentencing judge was provided with a report, dated 31 July 2016, written by Ms Oliveri, a clinical and forensic psychologist. The following is evident from this report.
The respondent has a long‑term and significant sexual attraction to female children.[100] The respondent reported a specific preference for girls aged between 5 and 8 years.[101] From about the age of 15 he 'paired' his fantasies about young female children with masturbation and ejaculation which strengthened his sexual attraction to female children.[102]
[100] Psychological report, page 2.
[101] Psychological report, page 4.
[102] Psychological report, pages 4 - 5.
Ms Oliveri noted a number of factors which were likely to have contributed to his offending, including: an entrenched sexual attraction to female children; a sexual attraction to his daughter; a desire to meet his sexual needs for sexual gratification; issues of power and control; poor impulse control; a complete disregard of the victim; opportunity and access; a belief that his sexual offending would not be disclosed or detected; cognitive distortions; impaired judgment; and a lack of consequential thinking skills.[103]
[103] Psychological report, page 5 ‑ 6.
The respondent was frank in his disclosures to Ms Oliveri. He admitted grooming his daughter and normalising his sexual offending. He acknowledged many and varied offences and that he committed them for his sexual gratification. The respondent targeted C due to his authority over her and her amenability. He admitted that he was sexually aroused and attracted to C from a very young age. The respondent conceded that his offending was planned, deliberate and persistent, and at no time throughout did he consider the impact on C. He agreed that his acts were often degrading of C. The respondent told Ms Oliveri that he took significant precautions to hide his offending from others. Despite C being 'unhappy' with his behaviour and requests, he did not cease his actions.[104] With respect to the photographs and videos he took, he said he used them during masturbation and for sexual gratification. He acknowledged that he also possessed and used other CEM for his sexual gratification. He admitted that he distributed material on the internet as he was sexually aroused by the thought that others were watching his sexual offending.[105]
[104] Psychological report, page 5.
[105] Psychological report, page 5.
The respondent does not appear to have any mental health problems or issues with alcohol and drugs. He has had some suicidal ideation.[106] An assessment using the Millon Clinical Multiaxial Inventory, third edition, revealed that the respondent is interpersonally distant and has few personal attachments. He seems to be highly self‑defeating in his attitudes and behaviour.[107]
[106] Psychological report, page 3.
[107] Psychological report, pages 4 - 5.
In assessing the respondent's risk of reoffending in a sexual manner, Ms Oliveri predicated her assessment by stating that it was not possible to predict recidivism with certainty. Having regard to the STATIC-99R (an actuarial tool) and the Risk for Sexual Violence Protocol, the respondent was assessed as being a low‑moderate risk of reoffending in a sexual manner.[108]
[108] Psychological report, pages 6 - 7.
Victim impact statement
The learned sentencing judge was provided with a victim impact statement written by C and a report, with respect to C, written by Ms M Anderson, a psychologist, which is undated. The victim impact statement is harrowing in its content.
In her victim impact statement, C recalled that for as long as she could remember she carried the secret of the abuse that was being perpetrated upon her by the respondent. She did not disclose what was happening to her because she was 'too scared' that something bad would happen to her if she did.
Unsurprisingly, her family life was unhappy. She does not feel close to her mother or her older sister. At the time of writing the statement, she said that her relationship with her family was 'broken'. The abuse has affected her schoolwork and she has self‑harmed. Upon the abuse being reported, she left home and was placed in care, which she found difficult. She feels unattached to what is happening around her, as if she is 'an outsider'.
Ms Anderson noted that C presented as a person struggling with a fragmented sense of identity and sense of self. She noted that C's relationship with her mother and sister was strained and minimal. Ms Anderson referred to research which showed that sexual abuse is likely to be the most harmful where the abuse has:
1.involved sexual penetration;
2.persisted over a lengthy time;
3.been perpetrated by a father or father figure;
4.been accompanied by force, violence or threat; and
5.been responded to by the family in a negative manner.
Ms Anderson said that, based on C's experience, almost all of these factors applied to her situation. Ms Anderson expressed significant concerns for C's long‑term, mental, emotional, physical, psychological and sexual wellbeing.
Sentencing remarks
After summarising the offences committed by the respondent, general sentencing principles, the respondent's antecedents, including the contents of Ms Oliveri's report, his Honour made findings as to the mitigating circumstances. He acknowledged that the respondent had entered pleas of guilty at the first reasonable opportunity and accorded the maximum discount for the pleas of guilty of 25%, pursuant to s 9AA of the Sentencing Act 1995 (WA).[109]
[109] ts 65.
His Honour found that the respondent's pleas did not carry any genuine remorse, empathy or insight into his offending. His Honour said that the respondent's conduct in treating C as a sex object for the respondent's personal sexual gratification over a period of 9 to 10 years, when C was aged between 2 and 12 or 13 years of age,[110] was 'totally inconsistent with any actual remorse or empathy'.[111] However, his Honour found there was some mitigation in the respondent's full and frank disclosure of his overall offending because, in part, the respondent wished to spare C the experience of having to testify in a trial.[112]
[110] The counts were pleaded as occurring before C's 13th birthday.
[111] ts 65.
[112] ts 66.
In addition to the pleas of guilty, his Honour said that the other principal mitigating factor was the respondent's voluntary disclosure of the offences which constituted counts 1 to 7 on the indictment. His Honour acknowledged that, but for that disclosure, those offences would not have been known. His Honour said that this was 'a substantial and important mitigating factor'.[113] His Honour acknowledged that the respondent had no prior criminal record.[114]
[113] ts 66.
[114] ts 66.
His Honour referred to the victim impact statement and Ms Anderson's report and acknowledged the adverse consequence to C of the respondent's 'sustained and prolific sexual abuse of her'.[115]
[115] ts 67.
His Honour emphasised the need to impose a sentence which reflected the sentencing objectives of punishment, protection of the community, denunciation and personal and general deterrence. His Honour also noted the need to, where possible, aid the respondent's rehabilitation.[116]
[116] ts 67 ‑ 68.
His Honour recognised that the primary sentencing considerations in cases of sexual abuse against children are personal and general deterrence, punishment of the offender and the protection of vulnerable children. He acknowledged that matters personal to the offender were of less mitigatory weight than they might otherwise be.[117]
[117] ts 68.
With respect to the possession and distribution of CEM, his Honour referred to various paragraphs in this court's judgment in The State of Western Australia v McCarthy,[118] to the effect that the same sentencing considerations for sexual offending against children apply to offences relating to CEM; that such offences are not victimless crimes; that they are prevalent and often difficult to detect and investigate.[119]
[118] The State of Western Australia v McCarthy [2014] WASCA 210; (2014) 246 A Crim R 86 [71] ‑ [73].
[119] ts 69.
His Honour described the respondent's overall offending as 'at the high upper end of the scale of seriousness'.[120] He regarded the offending as callous. He noted that the respondent ceased offending because C reached an age where she no longer provided him with sexual gratification.[121]
[120] ts 69.
[121] ts 69.
His Honour found that the respondent offended 'throughout the critical phase of her period as a young person, where she would have been psychologically and physically developing'.[122] He said that the respondent effectively robbed C of her innocence and of her entitlement to live in a secure and loving home.[123] His Honour said that the respondent's conduct was a gross breach of trust by him as C's father. He said that the respondent used C as a sex object for his own sexual gratification, directly, but also vicariously, by disseminating images of the sexual abuse on the internet.[124] His Honour noted the significant period of time over which the offending occurred and that the respondent had groomed and exploited C from a very young age to the point where the respondent normalised, in C's mind, his sexual behaviour. He said that C was 'extremely vulnerable' to the respondent's predations.[125] His Honour described the acts perpetrated upon C as being 'gross and degrading' and done for the respondent's 'perverse sexual gratification'.[126]
[122] ts 69 ‑ 70.
[123] ts 70.
[124] ts 70.
[125] ts 70.
[126] ts 70.
His Honour noted that the offending was representative of a course of conduct over a long period of time. He found that the offences were planned and premeditated and that they occurred when the respondent's wife was at work and when C's sister was not at home.[127]
[127] ts 70.
With respect to the recording of the offences and the dissemination of that material on the internet, his Honour said that it was difficult to imagine a more degrading or perverse course of action by a father to a daughter.[128]
[128] ts 71.
His Honour noted that while there was no actual physical violence, by reason of C's very young age, violence was not required.[129]
[129] ts 71.
His Honour described the offences relating to CEM as 'offending … at the highest end' of its type.[130] With respect to count 59, he noted that C was depicted in the videos and images, although she could not be easily identified.[131] His Honour described the photographs and videos the subject of counts 60 and 61 as being 'at the high end of the seriousness of this type of offending'.[132] He said the videos, in particular those which show children as young as 12 or 18 months, being sadistically tortured, as vile, and indicated gross depravity not only on the part of the persons who made this material, but on those who were prepared to download and possess it.
[130] ts 71.
[131] ts 71.
[132] ts 71.
His Honour then indicated the sentences that he would impose on each count before he considered the operation of the totality principle.[133] His Honour took into account the totality principle, not by lowering any individual sentence he would otherwise have imposed, but by accumulating the individual sentences on counts 11, 13, 14, 15 and 59 and by ordering the other individual sentences to be served concurrently.[134]
[133] ts 72 ‑ 74.
[134] ts 75.
General principles
In The State of Western Australia v Wilson,[135] we explained the general principles applicable to a State appeal against sentence.
[135] The State of Western Australia v Wilson [2015] WASCA 119.
This court has no warrant to substitute its own opinion for that of the sentencing judge merely because it would have exercised the discretion differently: Lowndes v The Queen.[136] This court can only intervene if it is demonstrated that the court below made a material error, either express or implied. There are special principles applicable to prosecution appeals. They are well established and need not be repeated, bearing in mind that the principle of double jeopardy which applied to State appeals has now been abolished: s 41(4)(b) Criminal Appeals Act 2004 (WA). This court has a residual discretion under s 31 of the Criminal Appeals Act to decline to allow an appeal against a sentence that is erroneously lenient.
[136] Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665 [15].
The grounds of appeal allege implied rather than express error. Before an individual sentence can be said to be manifestly inadequate or the total effective sentence be found to infringe the totality principle, it must be established that the sentence is unreasonable or plainly unjust: House v The King[137] and Barbaro v The Queen.[138]
[137] House v The King [1936] HCA 40; (1936) 55 CLR 499.
[138] Barbaro v The Queen [2014] HCA 2; (2014) 253 CLR 58 [26].
The orthodox approach to the question of manifest inadequacy is to examine the sentence having regard to the maximum sentence for the offence, the gravity of the offending conduct in the scale of seriousness, sentences imposed in other appellate cases and the personal circumstances of the offender: Chan v The Queen[139] and Munda v The State of Western Australia.[140]
[139] Chan v The Queen (1989) 38 A Crim R 337, 342.
[140] Munda v The State of Western Australia [2013] HCA 38; (2013) 249 CLR 600 [33].
The first limb of the totality principle requires that the total effective sentence bear a proper relationship to the overall criminality involved in all the offences, viewed in their entirety and having regard to the circumstances of the case, including those referable to the offender personally: Roffey v The State of Western Australia.[141]
[141] Roffey v The State of Western Australia [2007] WASCA 246 [24].
A relevant factor in the consideration of the appellant's grounds of appeal is the range of sentences imposed in comparable cases. Such cases are a yardstick against which the sentences in question may be compared. However, the range of sentences customarily imposed does not mark out the boundaries of the exercise of a sound sentencing discretion in an individual case. In other words, the guidance that is afforded by comparable cases is flexible rather than rigid. Ultimately, each case depends upon its own facts and circumstances.
Principles applicable to cases of intrafamilial sexual abuse
The principles applicable to cases of intrafamilial sexual abuse are well established. The primary sentencing considerations for such offences are appropriate punishment of the offender and personal and general deterrence, having regard to the need to protect vulnerable children. Matters personal to an offender are ordinarily of less mitigatory weight than might otherwise be the case. The fact that an offender is otherwise of good character ordinarily 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: The State of Western Australia v PJW.[142]
[142] The State of Western Australia v PJW [2015] WASCA 113 [34], [35].
There is no tariff for offences of the kind committed by the respondent because of the great variation that is possible in the circumstances of the offending and of offenders. Nevertheless, it is important to consider comparable sentencing cases.
Any sexual penetration of a child is serious. The maximum penalty for an offence contrary to s 329(2) of the Criminal Code (WA) of 20 years' imprisonment illustrates this point.
It is relevant in a case such as this, where the respondent has sexually penetrated the victim in different ways, to acknowledge that there is no 'hierarchy' of sexual penetration in the sense that some forms of sexual penetration are always to be regarded as less serious than others: "C" v The State of Western Australia.[143] That said, generally speaking, penile penetration of the vagina or the anus has been regarded as more serious than digital penetration, cunnilingus and fellatio. Without, in any way, attempting to describe all of those circumstances which can aggravate a sentence for an offence of sexual penetration where an act of sexual penetration is committed in circumstances of particular degradation or humiliation or causes injury (whether physical or psychological), such considerations should generally result in a more severe sentence. In the case of children, the offences of sexual penetration committed against very young children will also generally result in a more severe sentence.
[143] "C" v The State of Western Australia [2006] WASCA 261 [35].
Sentencing principles - voluntary disclosure of offences
Before dealing with the individual grounds of appeal, it is convenient to say something about the respondent's voluntary disclosure of some of his offending.
The legal principles applicable to the voluntary disclosure of offences were described in Hill v The State of Western Australia,[144] in which Buss, Newnes and Mazza JJA said:[145]
The relevant legal principles can be shortly stated. It is part of the policy of the criminal law to encourage a guilty person to come forward and disclose both the fact of an offence having been committed and his or her guilt. Such a confession may well not be motivated by fear of discovery or acceptance of the likelihood of proof of guilt, and will often exhibit the offender's remorse and contrition: AB v The Queen [1999] HCA 46; (1999) 198 CLR 111 [113]; JWD v The State of Western Australia [2013] WASCA 233 [45]. When a conviction follows upon a plea of guilty that is itself the result of a voluntary disclosure of guilt by the offender of an offence which was otherwise unlikely to have come to light, that is ordinarily a significant matter to the credit of the offender to be taken into account in the sentencing process: Ryan v The Queen [2001] HCA 21; (2001) 206 CLR 267 [11] - [15]; R v Ellis (1986) 6 NSWLR 603, 604; Schriever v The State of Western Australia [2008] WASCA 133 [22]. How significant it is in the sentencing process depends upon the facts and circumstances of the case: Ryan [15].
[144] Hill v The State of Western Australia [2014] WASCA 150.
[145] Hill v The State of Western Australia [33].
It will be recalled that, in the sentencing proceedings, the State acknowledged that counts 1 ‑ 7 were voluntarily disclosed by the respondent in his EROI of 18 August 2015 and that, but for this disclosure, those offences would not have come to light.[146] As we have already observed, his Honour said that this was a substantial and important mitigating factor.[147]
[146] ts 20.
[147] ts 66.
It will also be recalled that the respondent volunteered the location of three USB thumb drives which the police had not found in the search on 5 August 2015. In the proceedings before his Honour, this material was referred to only in the context of counts 59 ‑ 61. In other words, the material in the three USB thumb drives formed an unspecified part of the CEM, the subject of each of those counts.
At the hearing of the appeal, members of the coram asked senior counsel for the State about the contents of the three USB thumb drives. Senior counsel, quite properly, informed the court that the disclosure of the devices and their whereabouts was not only relevant to counts 59 ‑ 61, but also to '[s]ome of the offences … from 8 ‑ 57 [sic count 55]'.[148] However, senior counsel for the State was unable to specify which of these counts arose as a consequence of the respondent's voluntary disclosure of the three USB thumb drives.[149] Senior counsel for the State then referred the court to certain portions of the respondent's EROI on 18 August 2015 in respect of the three USB thumb drives.[150]
[148] Appeal ts 4.
[149] Appeal ts 5.
[150] Appeal ts 7 - 8.
When senior counsel was asked to, in substance, clarify the State's position as to the effect of the respondent's voluntary disclosure of the three USB thumb drives, she answered: [151]
I'm sorry I haven't been clear. My position is this, that we can't say one way or another, and we're bound by the fact that we can't say one way or another, and there must be at least a majority of those offences - I think is the only reasonable position to take - that were at least disclosed by the fact that the offender disclosed the location of those three USB sticks in the context of him thinking that they didn't have very much on them, I must say, having regard to the record of interview.
But I do not resile in any way from the fact that he voluntarily disclosed the location of those three thumb drives and the police may not have otherwise found them, and that they did provide evidence upon which a number of the charges were laid.
[151] Appeal ts 9.
Senior counsel's reference to the respondent thinking that the three USB thumb drives do not have very much on them, appears to us, on examination of the relevant portions of the transcript of the EROI, to be an erroneous reference to the three thumb drives found in the computer area of the respondent's home in the search on 5 August 2015 (see [52(s)] of these reasons).[152]
[152] Respondent's EROI, ts 116 - 117.
It is clear from the sentencing remarks that the respondent was sentenced on the basis that counts 1 ‑ 7 came to light as a result of the respondent's voluntary disclosure.[153] His Honour did not make a finding to that effect in respect of any of the other offences committed by the respondent. However, as we have already observed, his Honour did find that the respondent made a full and frank disclosure of his overall offending.[154]
[153] ts 66.
[154] ts 66.
It is now apparent to this court that:
(a)the respondent voluntarily disclosed that he had committed counts 1 ‑ 7 in circumstances where, but for his disclosure, those offences would not have come to light; and
(b)the respondent voluntarily disclosed the whereabouts of three USB thumb drives which the police had failed to locate during an earlier search and as a result of that disclosure 'at least a majority of' counts 8 ‑ 55 and some of the material relevant to counts 59 ‑ 61 came to light when those offence would not have otherwise been discovered.
At the hearing of the appeal, senior counsel for the State frankly acknowledged that these factors made the State's case difficult.[155]
[155] Appeal ts 5.
Ground 1
Ground 1 alleges that the sentences imposed in relation to each of counts 2, 3, 4, 5, 6, 7, 14, 16, 20, 24, 26, 28, 30, 32, 34, 36, 42, 44, 50, 54, 56 and 57 were manifestly inadequate. All of these, save for counts 14, 20 and 54, were offences of sexually penetrating a child who was a lineal relative under the age of 16 years, contrary to s 329(2) of the Criminal Code. This offence carries a maximum penalty of 20 years' imprisonment. Counts 14, 20 and 54 were offences of procuring a child who was a lineal relative under the age of 16 years to engage in sexual behaviour, contrary to s 329(3) of the Criminal Code. This, too, carries a maximum penalty of 20 years' imprisonment. The following table sets out the details of the individual sentences that were imposed:
Count No.
Description
Allegation
Sentence Imposed
2
Sexual penetration, lineal relative, child, U/16
Penetrating C's anus with a bottle
2 years' imprisonment concurrent
3
Sexual penetration, lineal relative, child, U/16
Penetrating C's anus with BKJ's fingers
2 years' imprisonment concurrent
4
Sexual penetration, lineal relative, child, U/16
Penetrating C's anus with BKJ's penis
3 years 6 months' imprisonment concurrent
5
Sexual penetration, lineal relative, child, U/16
Penetrating C's anus with a bottle
2 years' imprisonment concurrent
6
Sexual penetration, lineal relative, child, U/16
Penetrating C's anus with BKJ's fingers
2 years' imprisonment concurrent
7
Sexual penetration, lineal relative, child, U/16
Penetrating C's anus with BKJ's penis
3 years 6 months' imprisonment concurrent
14
Procured a child to engage in sexual behaviour, lineal relative, U/16
Procuring C to penetrate BKJ's anus with her hand
3 years 6 months' imprisonment cumulative
16
Sexual penetration, lineal relative, child, U/16
Introducing BKJ's penis into C's mouth
3 years' imprisonment concurrent
20
Procured a child to engage in sexual behaviour, lineal relative, U/16
Procuring C to penetrate BKJ's anus with her hand
3 years 6 months' imprisonment concurrent
24
Sexual penetration, lineal relative, child, U/16
Introducing BKJ's penis into C's mouth
3 years' imprisonment concurrent
26
Sexual penetration, lineal relative, child, U/16
Penetrating C's vagina with BKJ's penis
5 years' imprisonment concurrent
28
Sexual penetration, lineal relative, child, U/16
Penetrating C's vagina with a dildo
2 years' imprisonment concurrent
30
Sexual penetration, lineal relative, child, U/16
Penetrating C's anus with a carrot
3 years' imprisonment concurrent
32
Sexual penetration, lineal relative, child, U/16
Penetrating C's anus with a screwdriver
3 years' imprisonment concurrent
34
Sexual penetration, lineal relative, child, U/16
Penetrating C's vagina with BKJ's finger
2 years 6 months' imprisonment concurrent
36
Sexual penetration, lineal relative, child, U/16
Introducing BKJ's penis into C's mouth
3 years' imprisonment concurrent
42
Sexual penetration, lineal relative, child, U/16
Introducing BKJ's penis into C's mouth
3 years' imprisonment concurrent
44
Sexual penetration, lineal relative, child, U/16
Penetrating C's anus with a dildo
3 years' imprisonment concurrent
50
Sexual penetration, lineal relative, child, U/16
Introducing BKJ's penis into C's mouth
3 years' imprisonment concurrent
54
Procured a child to engage in sexual behaviour, lineal relative, U/16
Procuring C to penetrate BKJ's anus with C's hand and simultaneously masturbate BKJ's penis
4 years' imprisonment concurrent
56
Sexual penetration, lineal relative, child, U/16
Penetrating C's vagina with a dildo
2 years' imprisonment concurrent
57
Sexual penetration, lineal relative, child, U/16
Penetrating C's vagina with a dildo
2 years' imprisonment concurrent
The facts of the offending, the impact of that offending upon C, the respondent's personal circumstances and the sentencing remarks have already been described. It is unnecessary to repeat them.
While there are many sentencing cases involving offenders who have committed multiple offences against young children, including offences of sexual penetration, the challenge in nearly all those cases has been to the total effective sentence and not individual sentences that were imposed. The sentencing cases concerning offences of sexual penetration of a child which carry a 20‑year maximum are few in number. Nearly all challenge sentences on the ground of totality. In recent times, cases where individual sentences have been challenged on the ground of implied error are Samson v The State of Western Australia;[156] SWD v The State of Western Australia;[157] and DKA v The State of Western Australia.[158] It is unnecessary to discuss the detail of these cases. Such a limited number affords little guidance.
[156] Samson v The State of Western Australia [2011] WASCA 173.
[157] SWD v The State of Western Australia [2012] WASCA 76.
[158] DKA v The State of Western Australia [2015] WASCA 112. We note FWB v The State of Western Australia [2016] WASCA 118. The catchwords in that case refer to 'manifest excess'. However, no individual sentence was challenged on that ground.
The 22 counts under appeal may conveniently be divided in this way.
Offences which attracted a sentence of 2 years' imprisonment
•Count 2 - penetrating C's anus with a bottle
•Count 3 - penetrating C's anus with the respondent's fingers
•Count 5 - penetrating C's anus with a bottle
•Count 6 - penetrating C's anus with the respondent's fingers
•Count 28 - penetrating C's vagina with a dildo
•Count 56 - penetrating C's vagina with a dildo
•Count 57 - penetrating C's vagina with a dildo
Offence which attracted a sentence of 2 years and 6 months' imprisonment
•Count 34 - penetrating C's vagina with the respondent's finger
Offences which attracted a sentence of 3 years' imprisonment
•Count 16 - introducing the respondent's penis into C's mouth
•Count 24 - introducing the respondent's penis into C's mouth
•Count 30 - penetrating C's anus with a carrot
•Count 32 - penetrating C's anus with a screwdriver
•Count 36 - introducing the respondent's penis into C's mouth
•Count 42 - introducing the respondent's penis into C's mouth
•Count 44 - penetrating C's anus with a dildo
•Count 50 - introducing the respondent's penis into C's mouth
Offences which attracted a sentence of 3 years and 6 months' imprisonment
•Count 4 - penetrating C's anus with the respondent's penis
•Count 7 - penetrating C's anus with the respondent's penis
•Count 14 - penetrating the respondent's anus with C's hand
•Count 20 - penetrating the respondent's anus with C's hand
Offence which attracted a sentence of 4 years' imprisonment
•Count 54 - penetrating the respondent's anus with C's hand and C simultaneously masturbating his penis
Offence which attracted a sentence of 5 years' imprisonment
•Count 26 - penetrating C's vagina with the respondent's penis
The appellant's submissions
In its detailed written submissions, the appellant submits that the individual sentences that were imposed failed to acknowledge 'the relative seriousness' of the challenged offences.
For example, it was submitted that the imposition of sentences of 2 years' imprisonment for acts of penetrating of C's anus with a bottle indicate error when compared with sentences of 3 years and 6 months' imprisonment on counts 4 and 7, each of which involved the respondent penetrating C's anus with his penis. Further, the appellant points out that seven of the penetration offences (counts 2, 3, 5, 6, 28, 56 and 57) each attracted a sentence of 2 years' imprisonment which was the same sentence that was imposed for several of the counts of indecent dealing (counts 1, 9, 10, 18, 21, 38 and 47), one count of procuring an indecent act (count 8) and several of the counts of indecent recording (counts 19, 22, 25 and 31), all of which were subject to a lesser maximum penalty of 10 years' imprisonment. The sentences imposed on the seven counts of sexual penetration we have mentioned were also less than the terms of imprisonment imposed on many of the counts of indecent recording (counts 11, 15, 17, 27, 33, 35, 37, 39, 43, 45, 46, 48, 49, 51, 52, 53 and 55), one of the counts of indecent dealing (count 23) and one of the counts of procuring an indecent act (count 58). The appellant pointed out that offences of indecent dealing with a lineal relative who is a child are, in general, less serious than the offence of sexual penetration of a lineal relative who is a child.[159]
[159] GJT v The State of Western Australia [2011] WASCA 263; (2011) 214 A Crim R 272 [126].
Another example of an alleged failure to acknowledge 'the relative seriousness' of offences is in relation to the individual sentences imposed on counts 28, 56 and 57. The appellant points out that his Honour imposed sentences of 2 years' imprisonment for counts 28, 56 and 57, each of which involved the penetration of C's vagina with a dildo and submitted, in substance, that those sentences do not sit well with the individual sentences imposed on counts 30, 32 and 44, which involved the penetration of C's anus with an object, being a carrot, a screwdriver and a dildo, respectively, all of which attracted 3 years' imprisonment.
The appellant also submitted that the sentences on counts 4 and 7 were manifestly inadequate and did not reflect the depravity of that offending, the age of the victim and the sentencing judge's characterisation of the respondent's overall offending as at the high upper end of the scale of seriousness for this type of offending. Similar submissions were made with respect to the individual sentences for counts 14, 16, 20, 24, 26, 28, 30, 32, 34, 36, 42, 44, 50, 54, 56 and 57.
The respondent's submissions
Counsel for the respondent submitted that none of the individual sentences challenged in ground 1 were manifestly inadequate, having regard to the respondent's early plea of guilty and his cooperation with the authorities. Counsel pointed to the absence of threats and physical violence in the offending.[160] It was said that when the respondent uploaded material onto the internet he did not do so conscious of the fact it may have been possible for C's face to have been seen and that he 'made sure that her identity was not disclosed'.[161]
[160] Appeal ts 19 ‑ 20.
[161] Appeal ts 18.
Counsel for the respondent submitted that the real issue to be determined in the State's appeal was the total effective sentence and not the individual sentences that comprised it. Counsel for the respondent appeared to submit that the individual sentences were affected by totality considerations.[162] He noted that the highest individual sentence that was imposed, count 26, an offence of penile/vaginal penetration, was 5 years' imprisonment and was not outside the exercise of a proper sentencing discretion. He submitted that if this court considered that any of the individual sentences were manifestly inadequate and that higher sentences ought to have been imposed, no different overall sentence should have been imposed and the appeal should be dismissed: s 31(4)(a) of the Criminal Appeals Act.
[162] Appeal ts 21.
Ground 1 - disposition
All of the offences challenged in ground 1 were, in our opinion, serious examples of their type. This proposition is amply demonstrated by the circumstances in which each offence was committed.
The respondent penetrated C's vagina with his finger (count 34), a dildo (counts 28, 56 and 57) and his penis (count 26). Many of the offences involved penetration of the anus which he did with his fingers (counts 3 and 6), his penis (counts 4 and 7) and objects, being a bottle (counts 2 and 5), a carrot (count 30), the handle of a screwdriver (count 32), and a dildo (count 44). He introduced his penis into her mouth (counts 16, 24, 36, 42 and 50). He also had her insert her hand into his anus (counts 14, 20 and 54).
Each of these offences reflect a high degree of depravity on the respondent's part. Counts 14, 16, 20, 24, 26, 28, 30, 32, 34, 36, 42, 44, 50 and 54 were the subject of a digital image or video made by the respondent and uploaded onto the internet. The respondent did this for his sexual gratification and the sexual gratification of others. C's face or part of her face is visible in some of this material.
There are many aggravating factors in the commission of each of these offences, including:
(a)C's very young age.
(b)The gross breach of trust shown by the respondent. He abjectly failed in his duty to protect his daughter. Instead, he used her as an outlet for his deviant sexual interest.
(c)The offences were not an isolated aberration and were committed over a period of about 10 years.
(d)The respondent groomed C and, having done so, normalised his sexual behaviour towards her.
(e)The offences were premeditated and planned.
(f)The offences involved a high degree of depravity and were seriously humiliating.
(g)The respondent recorded, either by photograph or video, his actions. He later viewed it himself. He uploaded the material onto the internet and obtained satisfaction from knowing others might view it.
(h)The offending has had a profound negative effect upon C, including effectively destroying her familial relationships. The offending has had a significant psychological impact upon C and will, most likely, adversely impact her for life.
Against these aggravating factors must be weighed a number of mitigating factors, including the plea of guilty for which the respondent was given a 25% discount pursuant to s 9AA of the Sentencing Act, his cooperation with the police as shown in his EROI of 18 August 2015 and his disclosure to authorities of offences which would not otherwise have been charged. This last‑mentioned mitigating factor applies not only to counts 1 to 7 but, in the absence of the State providing evidence to the contrary, the other counts of sexual penetration which have been challenged in ground 1.
We do not accept the respondent's submission to the effect that the individual sentences were affected by totality considerations. It is clear from his Honour's sentencing remarks that he did not adjust any of the individual sentences for totality.
In Giglia v The State of Western Australia,[163] Owen JA (with whom McLure P and Pullin JA agreed) made the following observations in relation to a ground which contended that an individual sentence forming part of a longer total effective sentence was manifestly excessive:[164]
There will, of course, be times when it is appropriate to examine an individual sentence because it may have proceeded on an incorrect factual basis or it may be tainted by some other demonstrable error. But generally speaking where there is a challenge on totality grounds, the severity of a sentence imposed on an individual count will usually fall to be assessed in light of the sentences imposed in respect of the other counts and its contribution to the total effective sentence. A heavy individual sentence, for example, may be softened by an order that it be served concurrently with sentences imposed in relation to the other counts. On the other hand, a relatively light sentence may, as a practical matter, have increased severity if it is ordered to be served cumulatively. The real question is whether the total effective sentence is excessive.
[163] Giglia v The State of Western Australia [2010] WASCA 9.
[164] Giglia v The State of Western Australia [40].
In this passage, Owen JA is not saying that the court will decline to interfere with a sentence that is manifestly excessive or inadequate where it forms part of a larger total effective sentence that is not erroneous.[165] Rather, his Honour is recognising that the court's assessment of the severity of an individual sentence, and therefore whether the individual sentence is manifestly excessive or inadequate, is to be undertaken in light of the sentences imposed in respect of the other counts and its contribution to the total effective sentence. That is to recognise that those matters may affect the court's assessment of whether the individual sentence is unreasonable or plainly unjust.
[165] Gaskell v The State of Western Australia [2018] WASCA 8 [56].
The individual sentences which are the subject of this ground do not stand alone but form part of a much longer total effective sentence. Although directed to an offender's appeal, these observations in Giglia are not irrelevant in a prosecution appeal. All of the sentences challenged by this ground were to be served concurrently, so that the length of the individual sentences makes no difference to the time which the respondent will spend in custody. In considering whether the individual sentences are unreasonable or plainly unjust, some account may be taken of that context in which the sentences were imposed. The leniency of the individual sentences is moderated by the place of those sentences in the total effective sentence of 14 years' imprisonment which the sentencing judge imposed.
Even allowing for the considerations referred to at [116] and [118] - [120] above, many of the individual sentences may be regarded as low. That is particularly so for the individual sentences of 2 years' imprisonment referred to at [105] above. However, we have not been persuaded that the individual sentences challenged in ground 1 were manifestly inadequate Given the considerations noted at [116] and [118] - [120] above, the individual sentences do not reach - although some of them approach - a degree of leniency which can be characterised as unreasonable or plainly unjust.
We also note the appellant's submission as to the 'relative seriousness' of many of the offences of sexual penetration. Speaking generally, we accept that it is difficult to reconcile the sentences that were imposed in some of the challenged offences with other sentences his Honour imposed. However, in our opinion, such differences do not alone demonstrate manifest inadequacy.
While we would grant leave to appeal on ground 1, the ground has not been made out.
Ground 2
Ground 2 alleges that the sentence of 2 years' imprisonment imposed on count 1 is manifestly inadequate. Count 1 was an offence of indecent dealing with a lineal relative under the age of 16. This offence is subject to a maximum penalty of 10 years' imprisonment.
It will be recalled that C was 2 years of age at the time of the commission of the offence. The facts of the offence are described at [9] of these reasons.
The appellant submitted that the offending conduct was of such depravity that, notwithstanding the mitigating factors, including the plea of guilty and that the respondent voluntarily disclosed the offence to police, the sentence of 2 years' imprisonment was manifestly inadequate, particularly having regard to C's very young age. The appellant submitted that a longer term of imprisonment was more consistent with the sentencing judge's description in relation to the overall offending, namely that it was at the high upper end of the scale of seriousness.
The respondent submitted that, having regard to the mitigating factors, the sentence imposed on count 1 was not manifestly inadequate.
In GJT v The State of Western Australia,[166] Buss JA observed that, when custodial sentences have been imposed for offences of indecent dealing with a child, sentences have ranged from 9 months to 18 months (before the introduction of the 2003 transitional provisions), with sentences at the highest end of the range involving the fondling of a child's genitals. Although his Honour was in dissent as to the outcome in GJT, there was no disagreement as to his Honour's review of the sentences customarily imposed.
[166] GJT v The State of Western Australia [77].
The offending in count 1 was, in our opinion, more serious than that under consideration in GJT. Absent the considerations referred to in dealing with ground 1, we would have concluded that the sentence on count 1 was manifestly inadequate. However, having regard to the considerations referred to at [116] and [118] - [120] above in relation to ground 1, we have not been persuaded that the sentence was manifestly inadequate.
While we would give leave to appeal on ground 2, the ground has not been made out.
Ground 3
Ground 3 challenges the sentence of 4 years' imprisonment imposed on count 59, which is an offence of distributing CEM. It is said that the sentence is manifestly inadequate.
It will be recalled that the respondent admitted recording CEM which involved C and that he later stored it onto his computer, viewed it, including with C herself, and then he uploaded the material to the internet. Later, he deleted the material that was on his computer, but, later again, he downloaded it.
The CEM the subject of count 59 is described in [44] and [45] of these reasons.
The learned sentencing judge noted that C was not easily identified in the material. He described the offending as at the highest end of this type of offending. The respondent committed the offence because it excited him.
The appellant submitted that the offence was of such gravity that, notwithstanding the mitigating factors (including the respondent's voluntary disclosure of the whereabouts of three of the USB thumb drives which contained the material the subject of count 59), a sentence of 4 years' imprisonment was manifestly inadequate.
Counsel for the respondent submitted that the material was not distributed in the context of a commercial enterprise and that C could not be readily identified as the victim. Having regard to the mitigating factors, it was submitted that the sentence was not manifestly inadequate.
In The State of Western Australia v McCarthy,[167] it was observed that the maximum penalty for distributing CEM was increased in 2010 from 7 years to 10 years' imprisonment. It was well accepted that offences relating to CEM are not victimless crimes and that the major sentencing consideration is general deterrence, which is consistent with the court's duty to protect children.[168] There are few decisions of this court or its predecessor with respect to the sale or distribution of CEM. Apart from The State of Western Australia v McCarthy, there are R v Coultas[169] and Caulfield v The State of Western Australia [No 2].[170] None of these cases are as serious as the present case and, in any event, there is little that can be drawn from such a small number of comparators.
[167] The State of Western Australia v McCarthy [82].
[168] The State of Western Australia v McCarthy [71], [73].
[169] R v Coultas [2002] WASCA 131.
[170] Caulfield v The State of Western Australia [No 2] [2011] WASCA 230.
By reason of the respondent's voluntary disclosure of the whereabouts of the material which is the subject of count 59 and the contribution of the sentence for that offence to the total effective sentence, we have, as with the individual sentences the subject of grounds 1 and 2, come to the conclusion that the individual sentence on count 59 is not manifestly inadequate.
Although we would grant leave to appeal on ground 3, the ground has not been made out.
Ground 4
The appellant submits that the total effective sentence of 14 years' imprisonment did not reflect the overall criminality of the respondent's offending and that a significantly greater total effective sentence was required, notwithstanding the mitigating factors, including the respondent's voluntary disclosure. The appellant pointed to the sentencing judge's characterisation of the respondent's overall criminality as being at the high upper end of the scale of seriousness and further submitted that this characterisation was justified in all the circumstances of the case.
It was submitted that a pointer towards a conclusion that the total effective sentence infringed the first limb of the totality principle was his Honour's failure to accumulate the sentences for counts 60 or 61, having regard to the images and videos the subject of these charges involving children other than C.
The appellant cited a number of sentencing decisions of this court and its predecessor where substantial terms of imprisonment were imposed for multiple sexual offences against children. The written submissions focused on three cases, being ''B'' v The Queen;[171] GHK v The State of Western Australia;[172] and LJH v The State of Western Australia.[173] However, in oral submissions, the focus was on an examination of two more recent decisions of this court, being RGT v The State of Western Australia[174] and SCN v The State of Western Australia.[175]
[171] "B" v The Queen [2002] WASCA 236.
[172] GHK v The State of Western Australia [2014] WASCA 19; (2014) 238 A Crim R 178.
[173] LJH v The State of Western Australia [2016] WASCA 155; (2016) 261 A Crim R 355.
[174] RGT v The State of Western Australia [2017] WASCA 120.
[175] SCN v The State of Western Australia [2017] WASCA 138.
It was submitted on behalf of the respondent that the total effective sentence did not infringe the first limb of the totality principle having regard to the mitigating factors and cases said to be comparable.
In our opinion, the sentencing judge's characterisation of the respondent's overall offending as being at the high upper end of the scale of seriousness is plainly correct, having regard to circumstances of the offending and the effect that the offending has had on C. It was submitted on behalf of the respondent that the offending was not as bad as in some cases because it was not accompanied by threats or physical violence beyond the sexual acts themselves. While it is true that the respondent did not threaten or inflict non‑sexual violence upon C, he did not have to, having regard to the facts that he groomed C from a young age and normalised his sexual behaviour towards her. The absence of non‑sexual violence or threats of such violence is not mitigating.
Counsel for the respondent also made the point that the respondent ceased offending against C of his 'own volition',[176] approximately 3 1/2 years before his arrest. This is not a mitigating factor. The respondent ceased his behaviour because C attained an age (12 or 13 years) which did not sexually attract him.
[176] Respondent's answer, par 19.
Finally, it was claimed that the respondent was remorseful for his offending. This submission is contrary to the finding of the sentencing judge. The sentencing judge found that the length of time over which the respondent offended was inconsistent with a finding of remorse. However, the sentencing judge did find, to the respondent's credit, that the respondent cooperated with the police and that he did so, in part at least, to spare C from the need to testify at trial.
Cases involving serious sexual offending against children such as "B" v The Queen, LJH and ERA v The State of Western Australia[177] were analysed in SCN.[178] We adopt that analysis without repeating it. We have had regard to other cases involving serious sexual offending against children which have attracted lengthy total effective sentences and which were also referred to in that case, including GHS v The State of Western Australia[179] (14 years); KMB v The State of Western Australia[180] (14 years 6 months); SWD[181] (14 years) and GHK (14 years).
[177] ERA v The State of Western Australia [2013] WASCA 163.
[178] SCN v The State of Western Australia [112] ‑ [114].
[179] GHS v The State of Western Australia [2006] WASCA 42.
[180] KMB v The State of Western Australia [2010] WASCA 212.
[181] SWD v The State of Western Australia [2012] WASCA 76.
We now turn to SCN and RGT. It was said by the State that the respondent's culpability was between that of the offender in SCN and RGT.
In SCN, the appellant was convicted on pleas of guilty, which were not entered at the first reasonable opportunity, of 61 sexual offences involving his natural daughter. He received a total effective sentence of 22 years and 6 months' imprisonment. This court described the offending as being 'in a class of its own' and that its nature and extent were 'unlike any other case'.[182] For a two‑year period, when the victim was aged between 11 and 13 years, the appellant engaged in a sexual relationship with his daughter. Using various forms of online advertising, he also arranged for six other men to engage in sexual activity with her. The nature of this sexual activity varied. It included sexual intercourse, fellatio, cunnilingus, digital penetration of the victim's vagina, the taking of indecent photographs and videos, bondage and more. On three occasions, the appellant permitted his daughter to be administered a stupefying substance. The appellant watched and frequently participated in the sexual activity. This short and anodyne summary of the offending only goes part of the way to conveying the high degree of depravity and exploitation involved in what the appellant did.
[182] SCN v The State of Western Australia [6].
At the time of sentencing, SCN was 42 years of age. Apart from the pleas of guilty, there was little mitigation. The offending was marked by extreme cognitive distortion and his risk of reoffending was 'well above the low category'.[183]
[183] SCN v The State of Western Australia [78].
SCN's appeal was argued on three grounds, including that the total effective sentence infringed the first limb of the totality principle. After reviewing the comparable cases, this court concluded that the case involved 'dreadful offences for which there is no true comparator'.[184] This court also observed that it does not follow that a case of conduct involving one victim was necessarily less serious than one involving multiple victims.[185] SCN's appeal was dismissed.
[184] SCN v The State of Western Australia [117].
[185] SCN v The State of Western Australia [104].
Without wishing to in any way diminish the seriousness of what the respondent did, we regard the offending in SCN as involving greater criminality.
In RGT, the appellant was charged and convicted on his fast‑track pleas of guilty of 29 sexual offences contained in two indictments involving three child victims. Twenty two of the offences were committed against the appellant's 2‑year‑old daughter and 12 of those offences involved acts of sexual penetration of different kinds toward her.
At the time of sentencing, the appellant was 29 years old. His antecedents were unfavourable. He was a heavy user of methylamphetamine and assessed as being a low to moderate risk of further offending. RGT was sentenced to a total effective sentence of 19 years' imprisonment with eligibility for parole. This court upheld a ground of appeal alleging that the total effective sentence infringed the first limb of the totality principle and substituted a total effective sentence of 16 years' imprisonment with eligibility for parole.
In RGT, this court had regard to a large number of cases including those referred to by the parties in their written submissions.[186]
[186] RGT v The State of Western Australia [68].
This court allowed RGT's appeal and reduced the total effective sentence to 16 years' imprisonment with eligibility for parole. We regard the offending in the present case as being at least as serious as the offending in RGT. However, the present case may be distinguished from RGT in that the respondent received a reduction for his pleas of guilty pursuant to s 9AA of the Sentencing Act of 25% as opposed to the 15% which was given in RGT. Further, the mitigation available to the respondent in this case arising from his voluntary disclosures was not a factor that could be weighed in RGT's favour.
Leaving aside the outcome in SCN and RGT, the outcome in the present case is broadly consistent with the outcomes in those cases of serious offending we have referred to at [147].
It is trite to observe there is no one correct sentence. There is range of sentences which is open to a judge. In our opinion, the total effective sentence that was imposed upon the respondent fell to the lower end of that range. However, we have not been persuaded that it infringed the first limb of the totality principle. The alleged implied error has not been established.
While we would grant leave to appeal on ground 4, the ground has not been made out.
Conclusion and orders
None of the grounds of appeal have been made out. Accordingly, the appeal must be dismissed. The orders we would make are:
(1)Leave to appeal is granted on all grounds.
(2)The appeal is dismissed.
ANNEXURE
| Count No. | Description | Section | Maximum Penalty | Allegation | Sentence Imposed |
| 1 | Indecent dealing, lineal relative, child, U/16 | CC 329(4), 329(10)(a) | 10 years' imprisonment | Ejaculating onto C's buttocks | 2 years' imprisonment concurrent |
| 2 | Sexual penetration, lineal relative, child, U/16 | CC 329(2), 329(9)(a) | 20 years' imprisonment | Penetrating C's anus with a bottle | 2 years' imprisonment concurrent |
| 3 | Sexual penetration, lineal relative, child, U/16 | CC 329(2), 329(9)(a) | 20 years' imprisonment | Penetrating C's anus with BKJ's fingers | 2 years' imprisonment concurrent |
| 4 | Sexual penetration, lineal relative, child, U/16 | CC 329(2), 329(9)(a) | 20 years' imprisonment | Penetrating C's anus with BKJ's penis | 3 years 6 months' imprisonment concurrent |
| 5 | Sexual penetration, lineal relative, child, U/16 | CC 329(2), 329(9)(a) | 20 years' imprisonment | Penetrating C's anus with a bottle | 2 years' imprisonment concurrent |
| 6 | Sexual penetration, lineal relative, child, U/16 | CC 329(2), 329(9)(a) | 20 years' imprisonment | Penetrating C's anus with BKJ's fingers | 2 years' imprisonment concurrent |
| 7 | Sexual penetration, lineal relative, child, U/16 | CC 329(2), 329(9)(a) | 20 years' imprisonment | Penetrating C's anus with BKJ's penis | 3 years 6 months' imprisonment concurrent |
| 8 | Procured a child to do indecent act, lineal relative, U/16 | CC 329(5), 329(10)(a) | 10 years' imprisonment | Causing C to expose her genitals | 2 years' imprisonment concurrent |
| 9 | Indecent dealing, lineal relative, child, U/16 | CC 329(4), 329(10)(a) | 10 years' imprisonment | Ejaculating onto C's buttocks | 2 years' imprisonment concurrent |
| 10 | Indecent dealing, lineal relative, child, U/16 | CC 329(4), 329(10)(a) | 10 years' imprisonment | Rubbing semen onto C's buttocks | 18 months' imprisonment concurrent |
| 11 | Indecent recording, lineal relative, child, U/16 | CC 329(6), 329(10)(a) | 10 years' imprisonment | Taking an indecent video recording of C | 2 years 6 months' imprisonment cumulative |
| 12 | Procured a child to do indecent act, lineal relative, U/16 | CC 329(5), 329(10)(a) | 10 years' imprisonment | Causing C to urinate into a receptacle | 18 months' imprisonment concurrent |
| 13 | Indecent recording, lineal relative, child, U/16 | CC 329(6), 329(10)(a) | 10 years' imprisonment | Taking an indecent video recording of C urinating into a receptacle | 18 months' imprisonment cumulative |
| 14 | Procured a child to engage in sexual behaviour, lineal relative, U/16 | CC 329(3), 329(9)(a) | 20 years' imprisonment | Procuring C to penetrate BKJ's anus with her hand | 3 years 6 months' imprisonment cumulative |
| 15 | Indecent recording, lineal relative, child, U/16 | CC 329(6), 329(10)(a) | 10 years imprisonment | Taking an indecent video recording of C | 2 years 6 months' imprisonment cumulative |
| 16 | Sexual penetration, lineal relative, child, U/16 | CC 329(2), 329(9)(a) | 20 years' imprisonment | Introducing BKJ's penis into C's mouth | 3 years' imprisonment concurrent |
| 17 | Indecent recording, lineal relative, child, U/16 | CC 329(6), 329(10)(a) | 10 years' imprisonment | Taking an indecent video recording of C | 2 years 6 months' imprisonment concurrent |
| 18 | Indecent dealing, lineal relative, child, U/16 | CC 329(4), 329(10)(a) | 10 years' imprisonment | Ejaculating onto C's face | 2 years' imprisonment concurrent |
| 19 | Indecent recording, lineal relative, child, U/16 | CC 329(6), 329(10)(a) | 10 years' imprisonment | Taking an indecent video recording of C | 2 years' imprisonment concurrent |
| 20 | Procured a child to engage in sexual behaviour, lineal relative, U/16 | CC 329(3), 329(9)(a) | 20 years' imprisonment | Procuring C to penetrate BKJ's anus with her hand | 3 years 6 months' imprisonment concurrent |
| 21 | Indecent dealing, lineal relative, child, U/16 | CC 329(4), 329(10)(a) | 10 years' imprisonment | Procuring C to touch BKJ's scrotum | 2 years' imprisonment concurrent |
| 22 | Indecent recording, lineal relative, child, U/16 | CC 329(6), 329(10)(a) | 10 years' imprisonment | Taking an indecent video recording of C | 2 years' imprisonment concurrent |
| 23 | Indecent dealing, lineal relative, child, U/16 | CC 329(4), 329(10)(a) | 10 years' imprisonment | Procuring C to slap BKJ's scrotum with an open palm | 2 years 6 months' imprisonment concurrent |
| 24 | Sexual penetration, lineal relative, child, U/16 | CC 329(2), 329(9)(a) | 20 years' imprisonment | Introducing BKJ's penis into C's mouth | 3 years' imprisonment concurrent |
| 25 | Indecent recording, lineal relative, child, U/16 | CC 329(6), 329(10)(a) | 10 years' imprisonment | Taking an indecent video recording of C | 2 years' imprisonment concurrent |
| 26 | Sexual penetration, lineal relative, child, U/16 | CC 329(2), 329(9)(a) | 20 years' imprisonment | Penetrating C's vagina with BKJ's penis | 5 years' imprisonment concurrent |
| 27 | Indecent recording, lineal relative, child, U/16 | CC 329(6), 329(10)(a) | 10 years' imprisonment | Taking an indecent video recording of C | 2 years 6 months' imprisonment concurrent |
| 28 | Sexual penetration, lineal relative, child, U/16 | CC 329(2), 329(9)(a) | 20 years' imprisonment | Penetrating C's vagina with a dildo | 2 years' imprisonment concurrent |
| 29 | Indecent recording, lineal relative, child, U/16 | CC 329(6), 329(10)(a) | 10 years' imprisonment | Taking an indecent video recording of C | 3 years' imprisonment concurrent |
| 30 | Sexual penetration, lineal relative, child, U/16 | CC 329(2), 329(9)(a) | 20 years' imprisonment | Penetrating C's anus with a carrot | 3 years' imprisonment concurrent |
| 31 | Indecent recording, lineal relative, child, U/16 | CC 329(6), 329(10)(a) | 10 years' imprisonment | Taking an indecent photograph of C | 2 years' imprisonment concurrent |
| 32 | Sexual penetration, lineal relative, child, U/16 | CC 329(2), 329(9)(a) | 20 years' imprisonment | Penetrating C's anus with a screwdriver | 3 years' imprisonment concurrent |
| 33 | Indecent recording, lineal relative, child, U/16 | CC 329(6), 329(10)(a) | 10 years' imprisonment | Taking an indecent photograph of C | 2 years 6 months' imprisonment concurrent |
| 34 | Sexual penetration, lineal relative, child, U/16 | CC 329(2), 329(9)(a) | 20 years' imprisonment | Penetrating C's vagina with BKJ's finger | 2 years 6 months' imprisonment concurrent |
| 35 | Indecent recording, lineal relative, child, U/16 | CC 329(6), 329(10)(a) | 10 years' imprisonment | Taking an indecent photograph of C | 2 years 6 months' imprisonment concurrent |
| 36 | Sexual penetration, lineal relative, child, U/16 | CC 329(2), 329(9)(a) | 20 years' imprisonment | Introducing BKJ's penis into C's mouth | 3 years' imprisonment concurrent |
| 37 | Indecent recording, lineal relative, child, U/16 | CC 329(6), 329(10)(a) | 10 years' imprisonment | Taking an indecent photograph of C | 2 years 6 months' imprisonment concurrent |
| 38 | Indecent dealing, lineal relative, child, U/16 | CC 329(4), 329(10)(a) | 10 years' imprisonment | Ejaculating onto C's face | 2 years' imprisonment concurrent |
| 39 | Indecent recording, lineal relative, child, U/16 | CC 329(6), 329(10)(a) | 10 years' imprisonment | Taking an indecent photograph of C | 2 years 6 months' imprisonment concurrent |
| 40 | Indecent dealing, lineal relative, child, U/16 | CC 329(4), 329(10)(a) | 10 years' imprisonment | Kissing C on the mouth | 18 months' imprisonment concurrent |
| 41 | Indecent recording, lineal relative, child, U/16 | CC 329(6), 329(10)(a) | 10 years' imprisonment | Taking an indecent photograph of C | 18 months' imprisonment concurrent |
| 42 | Sexual penetration, lineal relative, child, U/16 | CC 329(2), 329(9)(a) | 20 years' imprisonment | Introducing BKJ's penis into C's mouth | 3 years' imprisonment concurrent |
| 43 | Indecent recording, lineal relative, child, U/16 | CC 329(6), 329(10)(a) | 10 years' imprisonment | Taking an indecent photograph of C | 2 years 6 months' imprisonment concurrent |
| 44 | Sexual penetration, lineal relative, child, U/16 | CC 329(2), 329(9)(a) | 20 years' imprisonment | Penetrating C's anus with a dildo | 3 years' imprisonment concurrent |
| 45 | Indecent recording, lineal relative, child, U/16 | CC 329(6), 329(10)(a) | 10 years' imprisonment | Taking an indecent photograph of C | 2 years 6 months' imprisonment concurrent |
| 46 | Indecent recording, lineal relative, child, U/16 | CC 329(6), 329(10)(a) | 10 years' imprisonment | Taking an indecent photograph of C | 2 years 6 months' imprisonment concurrent |
| 47 | Indecent dealing, lineal relative, child, U/16 | CC 329(4), 329(10)(a) | 10 years' imprisonment | Ejaculating onto C's stomach | 2 years' imprisonment concurrent |
| 48 | Indecent recording, lineal relative, child, U/16 | CC 329(6), 329(10)(a) | 10 years' imprisonment | Taking two indecent photographs of C in the shower naked | 2 years 6 months' imprisonment concurrent |
| 49 | Indecent recording, lineal relative, child, U/16 | CC 329(6), 329(10)(a) | 10 years' imprisonment | Taking an indecent photograph of C | 2 years 6 months' imprisonment concurrent |
| 50 | Sexual penetration, lineal relative, child, U/16 | CC 329(2), 329(9)(a) | 20 years' imprisonment | Introducing BKJ's penis into C's mouth | 3 years' imprisonment concurrent |
| 51 | Indecent recording, lineal relative, child, U/16 | CC 329(6), 329(10)(a) | 10 years' imprisonment | Taking an indecent photograph of C | 2 years 6 months' imprisonment concurrent |
| 52 | Indecent recording, lineal relative, child, U/16 | CC 329(6), 329(10)(a) | 10 years' imprisonment | Taking an indecent photograph of C | 2 years 6 months' imprisonment concurrent |
| 53 | Indecent recording, lineal relative, child, U/16 | CC 329(6), 329(10)(a) | 10 years' imprisonment | Taking an indecent photograph of C | 2 years 6 months' imprisonment concurrent |
| 54 | Procured a child to engage in sexual behaviour, lineal relative, U/16 | CC 329(3), 329(9)(a) | 20 years' imprisonment | Procuring C to penetrate BKJ's anus with her hand and simultaneously masturbate BKJ's penis | 4 years' imprisonment concurrent |
| 55 | Indecent recording, lineal relative, child, U/16 | CC 329(6), 329(10)(a) | 10 years' imprisonment | Taking an indecent photograph of C | 2 years 6 months' imprisonment concurrent |
| 56 | Sexual penetration, lineal relative, child, U/16 | CC 329(2), 329(9)(a) | 20 years' imprisonment | Penetrating C's vagina with a dildo | 2 years' imprisonment concurrent |
| 57 | Sexual penetration, lineal relative, child, U/16 | CC 329(2), 329(9)(a) | 20 years' imprisonment | Penetrating C's vagina with a dildo | 2 years' imprisonment concurrent |
| 58 | Procured a child to do indecent act, lineal relative, U/16 | CC 329(5), 329(10)(a) | 10 years' imprisonment | Procuring C to wear a dog collar and crawl along the floor while naked | 2 years 6 months' imprisonment concurrent |
| 59 | Distributed CEM | CC 219(2) | 10 years' imprisonment | Made CEM available for access by electronic means by another person | 4 years' imprisonment cumulative |
| 60 | Possession of CEM | CC 220 | 7 years' imprisonment | Had in his possession digital photographs | 3 years' imprisonment concurrent |
| 61 | Possession of CEM | CC 220 | 7 years' imprisonment | Had in his possession digital video recordings | 4 years' imprisonment concurrent |
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
CS
ASSOCIATE TO THE HONOURABLE JUSTICE MAZZA8 AUGUST 2018
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