The State of Western Australia v LZR
[2025] WASCA 46
•1 APRIL 2025
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: THE STATE OF WESTERN AUSTRALIA -v- LZR [2025] WASCA 46
CORAM: MITCHELL JA
VAUGHAN JA
HALL JA
HEARD: 14 MARCH 2025
DELIVERED : 1 APRIL 2025
FILE NO/S: CACR 47 of 2024
BETWEEN: THE STATE OF WESTERN AUSTRALIA
Appellant
AND
LZR
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram: MIOCEVICH DCJ
File Number : IND 947 of 2022
Catchwords:
Criminal law - Sentencing - State appeal against sentence - Where respondent convicted of 29 sexual offences against nine child victims - Whether total effective sentence of 10 years' imprisonment infringes the first limb of the totality principle
Legislation:
Criminal Code (WA), s 320(2), s 320(4), s 321(2), s 321(4)
Result:
Appeal dismissed
Category: D
Representation:
Counsel:
| Appellant | : | G N Beggs |
| Respondent | : | S A Auburn |
Solicitors:
| Appellant | : | Director of Public Prosecutions (WA) |
| Respondent | : | Sharon Auburn Lawyers |
Case(s) referred to in decision(s):
AAE v The State of Western Australia [2024] WASCA 35
CGF v The State of Western Australia [2023] WASCA 187
Coutts v The State of Western Australia [2023] WASCA 38
JFB v The State of Western Australia [2024] WASCA 41
JYL v The State of Western Australia [2021] WASCA 222
Kabambi v The State of Western Australia [2019] WASCA 44
Lewsam v The State of Western Australia [2016] WASCA 60
LTT v The State of Western Australia [2025] WASCA 19
LYN v The State of Western Australia [2019] WASCA 45
MAS v The State of Western Australia [2012] WASCA 36
MHE v The State of Western Australia [2019] WASCA 133
MRW v The State of Western Australia [2022] WASCA 98
OTR v The State of Western Australia [No 2] [2022] WASCA 123
The State of Western Australia v Rock [2007] WASCA 121
VDH v The State of Western Australia [2025] WASCA 10
Walsh v The State of Western Australia [2024] WASCA 78
YNT v The State of Western Australia [2021] WASCA 89
JUDGMENT OF THE COURT:
Summary
On 27 October 2023, the respondent was convicted after trial of 29 sexual offences committed against nine different child complainants. The offences were alleged to have been committed on various dates between May 2001 and March 2021. On 16 April 2024, the respondent was sentenced to a total effective sentence of 10 years' imprisonment for this offending. The sentences were backdated to 27 October 2023 to take account of time spent in custody on remand. The respondent was made eligible for parole.
The details of the individual counts and the sentences received on each count are set out in the table annexed to these reasons.
The State now appeals against these sentences on the sole ground that the total effective sentence of 10 years' imprisonment infringes the first limb of the totality principle. Leave to appeal was granted on 27 September 2024.
For the following reasons the appeal must be dismissed.
Circumstances of offending
The trial judge made the following findings as to the circumstances of the respondent's offending.
Counts 1 - 6: offending against RG from 2001 - 2011
RG was the respondent's niece by marriage. At the time of the offending, RG was 9 ‑ 17 years old and the respondent was 33 ‑ 41 years old. The respondent had access to RG as a trusted family member.[1]
[1] Trial ts 1138.
Counts 1 and 2 relate to an incident on a Saturday night on an unknown date between 22 May 2001 and 23 May 2003, when RG was 9 ‑ 10 years old. On that occasion, RG slept between the respondent and his wife in their bed. RG awoke to find the respondent sexually penetrating her by rubbing his hand inside her clitoris or vagina lips (count 1). The respondent then indecently dealt with RG by placing her hand on his penis (count 2). RG pulled her hand away and rolled towards the respondent's wife.[2]
[2] Trial ts 1139.
Counts 3 and 4 relate to an incident which occurred on the following day when, after going to some markets, the respondent went with RG to her grandparents' house. No one else was there, and the respondent asked RG to watch some television in a room with a beanbag on the floor. There were naked people on the television. The respondent started tickling RG up and down her arm. He then rubbed her clitoris and sexually penetrated her by putting his finger in and out of RG's vagina (count 3). After what may have been a short duration, the respondent stopped, and RG locked herself in a toilet to get away from the respondent. RG said that she would like to go home and the respondent said that he would take her home. RG opened the door and saw the respondent with his pants and underwear down and his penis exposed. The respondent said, 'It's my turn now'. The respondent indecently dealt with RG by grabbing her hand and placing it on his penis and squeezing it (count 4). The respondent then took RG home.[3]
[3] Trial ts 1139.
Count 5 related to an incident which occurred on an unknown date between 22 May 2002 and 23 May 2005 when RG was 11 ‑ 12 years old. RG was in a pool with the respondent and her two brothers. At the deep end of the pool, the children were standing on the respondent's hands so that he could push them into the air. Before RG stood on the respondent's hands, he sexually penetrated her by putting his finger into her vagina for a couple of seconds (count 5). This really hurt RG, who swam off towards the side ledge of the pool. The respondent had done this before, and it was not an isolated incident.[4]
[4] Trial ts 1139 - 1140.
Count 6 occurred on an unknown date between 22 May 2009 and 23 May 2011, when RG was 17 ‑ 19 years old. RG agreed to help the respondent operate his food van as another worker had called in sick. While working in the food van, the respondent indecently assaulted RG by squeezing and pinching her buttocks over her clothes on multiple occasions as she walked past him (count 6).[5]
[5] Trial ts 1140.
The charged offences committed against RG were not isolated incidents and represented continual offending against RG over the period when the respondent had access to her.[6]
Counts 7 - 14: offending against SM from 2011 - 2018
[6] Trial ts 1139.
SM was the respondent's niece by marriage. At the time of the offending, SM was 8 ‑ 16 years old and the respondent was 43 ‑ 50 years old. The respondent had access to SM as a trusted family member.[7]
[7] Trial ts 1140.
Counts 7 and 8 related to an incident which occurred on 29 January 2011 when SM had just turned 8 years old. The respondent was babysitting SM while her parents and the respondent's wife went to a concert. While they were sitting on a couch, the respondent grabbed SM by the waist and pulled her to the edge of the couch. SM stood up and the respondent indecently dealt with her by squeezing and grabbing her buttocks over her pyjama shorts (count 7). The respondent then moved his hand under SM's pyjama shorts and underpants and sexually penetrated SM by rubbing inside her vagina in the clitoris area for an unknown period of time (count 8). SM could not move as the respondent was pinning her arms with his other arm. She tried wriggling and moving and screamed, which woke up the respondent's daughter. The respondent left to attend to his daughter, which allowed SM to go to another room. When SM's parents returned, she ran outside crying when she heard them. SM then left the home with them.[8]
[8] Trial ts 1140.
Counts 9 and 10 related to an incident which took place on an unknown date between 29 January 2011 and 9 January 2012, when SM was about 8 years old. The respondent was at his desk with a computer. The respondent grabbed SM and sat her on his lap. The computer displayed images of naked people. The respondent pulled his erect penis out and indecently dealt with SM by grabbing her wrist and trying to get her to touch his penis. SM's hand made contact with the respondent's penis as she tried to pull her hand away (count 9). The respondent then encouraged SM to do an indecent act when he said, 'Kiss it' as he nodded towards his penis (count 10). The incident came to an end when someone made a noise. There were other family members in the house, which showed a level of brazen behaviour by the respondent.[9]
[9] Trial ts 1141.
Counts 11 and 12 related to an incident which were alleged in the indictment to have occurred on an unknown date between 8 January 2013 and 9 January 2016. The jury found the respondent not guilty of the charged indecent dealing with, and sexual penetration of, a child under the age of 13 years. They found the respondent guilty of alternative offences of indecent dealing with, and sexual penetration of, a child of or over the age of 13 years and under the age of 16 years. These alternative offences were alleged to have occurred on an unknown date between 8 January 2016 and 9 January 2019.[10]
[10] See trial ts 1112 - 1113.
The incident occurred when SM was working for the respondent in the food van at some markets. The sale of food had stopped, and the respondent and SM were cleaning up. The window of the food van was shut. The respondent grabbed SM from behind and pinned her arms down with his arms. He started to rub SM's vagina on the outside of her leggings. The respondent then put his hands under SM's leggings and underwear and indecently dealt with her by rubbing the outside of the lips of SM's vagina (count 11). The respondent then sexually penetrated SM by rubbing her clitoris (count 12). SM tried to get out of the respondent's hold but could not. SM told the respondent to stop and leave her alone, and the respondent just laughed. SM does not know how long this went on for, but it eventually stopped.[11]
[11] Trial ts 1141.
Counts 13 and 14 related to an incident which occurred on an unknown date between 8 January 2017 and 9 January 2018, when SM was in year 8 and was 13 years old. SM went to the toilet at a house where family members were on a patio area during a party. The respondent was in the doorway of a guest bedroom and pulled SM by the waist as she left the toilet. The respondent pinned SM's arms down and indecently dealt with her by squeezing her buttocks over her shorts (count 13). SM said, 'Let me go', and the respondent laughed and said, 'Shh'. The respondent unbuttoned SM's shorts, placed his[12] hands under her underwear, and rubbed her vagina. The respondent then sexually penetrated SM by inserting his finger into her vagina (count 14). The respondent removed his finger when SM pushed him and got out of his hold. SM said, 'Never touch me again'. The respondent laughed at her. SM then went to another room and back to the party where she stood next to her father.[13]
Count 15: offending against EH between October 2013 and October 2014
[12] The transcript of the trial judge's sentencing remarks states the respondent 'rubbed her hands on the outside of her lips' (emphasis added), however SM's evidence in chief was that it was the respondent's hand that rubbed her vagina (trial ts 252).
[13] Trial ts 1141 - 1142.
EH was the respondent's niece by marriage. At the time of the offending, EH was 14 years old and the respondent was 46 years old. The respondent had access to EH as a trusted family member.[14]
[14] Trial ts 1142.
Count 15 related to an incident which occurred on an unknown date between 25 October 2013 and 27 October 2014 when EH was working in the respondent's food van at a country show. EH was in the back of the food van to the right side where no one could see. The respondent indecently dealt with EH by grabbing her hips and squeezing, putting his right hand on her stomach, moving his hand onto her vagina and squeezing on the outside of her clothes (count 15). EH said, 'Stop, don't do that.' The respondent said, 'What will you do when you have a boyfriend? You'll have to get used to this'. EH pushed the respondent's hand away.[15]
[15] Trial ts 1142.
On other occasions, the respondent had grabbed and squeezed EH's hips and lower stomach and pinched and slapped her buttocks to get her out of the way. It happened so often she did not react to the conduct. EH worked with the respondent for a further three to four years, but made sure someone was always there or she would stay in front of the window.[16]
Counts 16 - 17: offending against KV from 2014 - 2019
[16] Trial ts 1142 - 1143.
The respondent was a family friend of KV's parents. At the time of the offending, KV was 12 ‑ 13 years old and the respondent was 50 ‑ 52 years old.[17]
[17] Trial ts 1143.
Count 16 occurred at the respondent's house on an unknown date between 7 October 2014 and 19 August 2018. KV was on a couch in the lounge room and the respondent was on a computer. The respondent came to the couch and put his hand on KV's thigh. The respondent then moved his hand onto KV's vagina and touched and felt it with his fingers over her clothes for about 10 minutes (count 16). No one else was in the room.[18]
[18] Trial ts 1143.
Count 17 occurred on 6 April 2019, when KV and her brother were left in the respondent's care. At night, KV was using her phone on the couch and KV's brother was sleeping next to her. The respondent came over to the couch and sat next to KV. The respondent then indecently dealt with KV by moving his fingers around her vagina (count 17). The respondent tried to get his fingers under her pants but did not do so. He slid his hand down the side of her waist. The respondent lifted KV up with his arms and walked her to the bedroom. KV said, 'Stop', and the respondent put her down on the bed. The trial judge found that 'nothing actually happened on the bed'.[19]
[19] Trial ts 1143.
The trial judge said that he was 'prepared to accept this was not an isolated offending' but was 'not prepared to say beyond reasonable doubt it's anything more than that'.[20]
Counts 18 - 22: offending against TMC from 2018 - 2020
[20] Trial ts 1143.
The respondent was a family friend of TMC's parents. At the time of the offending, TMC was 13 ‑ 14 years old and the respondent was 51 ‑ 52 years old. TMC started working in the respondent's food van around October 2018 and worked nearly every weekend.[21]
[21] Trial ts 1143.
On 24 December 2018, the respondent saw a girl wearing a fishnet dress and said to TMC, 'I'd like to see you in fishnets'. TMC became upset, and the respondent said, 'What, are you going to cry?'. TMC went to the toilets and cried. The respondent indecently dealt with TMC by squeezing her buttocks with two hands, caressing her around the hips and brushing over her pelvic area or vagina over her clothes (count 18).[22]
[22] Trial ts 1143 - 1144.
On 4 March 2019, TMC was working in the food van wearing the work uniform of a t‑shirt and leggings. The respondent indecently dealt with TMC by placing a hand on each of TMC's buttocks and squeezing them. He then moved his hand to stroke her thigh and snap her leggings (count 19).[23]
[23] Trial ts 1144.
On an unknown date between 22 August 2019 and 26 August 2019, TMC attended a festival in a country town for work with the respondent and another female worker. TMC and the other worker slept in a rooftop tent. TMC awoke to find the respondent on top of her. The respondent and TMC were both wearing clothes. The respondent indecently dealt with TMC by pressing his penis against her vaginal area (count 20). The trial judge found that the respondent gave TMC alcohol and shisha.[24]
[24] Trial ts 1144.
On an unknown date between 14 March 2018 and 15 March 2020, TMC was working in the food van outside a hotel in Perth. The respondent told TMC that she was 'cheeky and shy'. The respondent then indecently dealt with TMC by clapping her buttocks with his hand and rubbing his fingers over her clothes (count 21). When she was packing up, the respondent cupped his hands on TMC's buttocks and kept them there for 'more than seconds' in the view of other people (count 22).[25]
[25] Trial ts 1144.
The trial judge found that these were not isolated incidents of the respondent touching TMC's buttocks. His Honour accepted TMC's evidence that the respondent 'always used to put his hand on [her] arse and let it linger'.[26]
Counts 23 - 24: offending against NC in February 2019
[26] Trial ts 1144.
The respondent was a family friend of NC's parents. At the time of the offending, NC was 16 years old, and the respondent was 51 years old. NC worked in the respondent's food van on six to 10 occasions and was under his care, supervision or authority at the time of the offending.[27]
[27] Trial ts 1145.
The charged offending occurred when the respondent, NC and two other female workers worked at a country music festival on 16 ‑ 17 February 2019. While they were working in the food van, the respondent indecently dealt with NC by moving both his hands down to NC's buttocks and giving them a squeeze (count 23). This happened more than once and for a few seconds each time. The touching was deliberate and sexual in nature and there were other girls in the food van at the time.[28]
[28] Trial ts 1145.
After work, the respondent gave NC shisha and more than two drinks of beer. She had a couple of sips of the beer and poured the rest on the ground. The sleeping arrangement was that the two other workers shared a sleeping space while the respondent and NC shared a sleeping space.[29] NC was on the left and the respondent was on the right. The respondent asked, 'Why are you so far away?'. NC did not reply as she was uncomfortable. She was wearing pyjamas. The respondent started massaging NC's shoulders, her back and then her lower back. The respondent then indecently dealt with NC by pulling her pants halfway down and massaging her buttocks (count 24). NC left to go to the toilet and later slept in the car with the doors locked. She worked the next day.[30]
[29] The trial judge's sentencing remarks refer to the respondent and NC sleeping 'at the top of the rooftop tent with the other two girls below' (trial ts 1145) but NC's evidence in chief was that the other workers slept in the rooftop tent with the respondent and NC sharing a mattress in the back of the respondent's car (trial ts 466 - 467).
[30] Trial ts 1145.
The trial judge found that there was deliberate touching of NC on other occasions.[31]
Count 25: offending against AV in May 2019
[31] Trial ts 1145.
The respondent was a family friend of AV's parents. At the time of the offending, AV was 17 years old and the respondent was 51 years old. AV worked in the respondent's food van on four occasions and was under his care, supervision or authority at the time of the offending.[32]
[32] Trial ts 1145 - 1146.
On or about 4 May 2019, AV was working with the respondent in the food van at a country town. AV complained of a sore back and the respondent told her to lay on his bed. The respondent started to massage AV. The respondent sat on the back of AV's legs and started at the top of her back in the middle, working down her shoulders to her arms and then her lower back. The respondent lifted AV's shirt up. He moved down to her buttocks and massaged it under her clothing. AV told the respondent to stop and said that it 'wasn't okay'. The respondent said it was. The respondent then indecently dealt with AV by touching her groin area. The respondent moved his hands down between AV's thighs, and she could feel that the respondent's thumbs were either side of her vagina. The respondent was 'massaging her bottom with [his] fingers and thumbs at the same time next to her vagina' (count 25). AV said, 'Get off. Enough is enough', and eventually the respondent stopped.[33]
Counts 26 - 27: offending against PB from 2019 - 2020
[33] Trial ts 1146.
The respondent was a family friend of PB's parents. At the time of the offending, PB was 15 ‑ 16 years old and the respondent was 51 ‑ 53 years old. PB had worked for the respondent since she was 14 years old and was under the respondent's care, supervision or authority at the time of the offending.[34]
[34] Trial ts 1146.
On an unknown date between 11 February 2019 and 12 February 2020, the respondent and PB were alone in the respondent's food van with no customers about. The respondent pulled up a chair, sitting behind PB. The respondent indecently dealt with PB by grabbing her buttocks with his hand and pinching it hard with his fingers over her clothes for 30 ‑ 45 seconds (count 26). The pinching got incrementally harder, and hurt PB. PB turned and whacked the respondent's arm away and he eventually took his hand off.[35]
[35] Trial ts 1146.
On an unknown date between 24 July 2020 and 17 September 2020, PB was working in the respondent's food van and had sore legs from netball. PB was in the food van massaging her own legs over her leggings. The respondent pulled up a chair and sat behind PB out of view and pulled her in with his hands above her knees. The respondent started squeezing PB's legs and working his way up. The respondent indecently dealt with PB by touching her vaginal area, getting his hands 'really close' to her vagina and grazing it twice (count 27). PB did not know what to do. The respondent said, 'Like, oh, yeah. Like, your leg's really tight'. Customers came and interrupted, but then they left. The respondent started massaging PB again, but on the second occasion did not graze her vagina. PB's mother came up to the window. PB moved away, but did not tell her mother what had occurred.[36]
Counts 28 - 29: offending against TK from 2019 - 2021
[36] Trial ts 1146 - 1147.
The respondent was a family friend of TK's parents. At the time of the offending, TK was 14 ‑ 15 years old and the respondent was 52 ‑ 53 years old. The respondent's and TK's families would go on holidays together, and TK viewed the respondent as a trusted father figure. TK also worked in the respondent's food van. The offending occurred while TK was working in the respondent's food van rather than on family holidays.[37]
[37] Trial ts 1147.
On an unknown date between 1 October 2019 and 1 August 2020, TK was standing at the till of the food van. People outside the food van could see TK. The respondent stood next to TK and indecently dealt with her by pinching one of her buttocks with his hand (count 28). On another unknown date between 30 November 2020 and 1 March 2021, TK was facing out of the van. The respondent pinched TK's buttocks over the top of her clothes with his hands but did not say anything (count 29).[38]
[38] Trial ts 1147.
These were not isolated incidents. The trial judge found that, despite the respondent's behaviour, TK did not think it was that bad and continued to work for the respondent because she did not want to ruin the friendship between their families.[39]
[39] Trial ts 1147.
Victim impact
The trial judge noted that he had received victim impact statements from many of the complainants. Victim impact statements were received from RG, EH, KV, TMC, AV and PB. The trial judge observed:[40]
The statements have a common theme running through them, there's a sense of betrayal by you as a trusted relative or family friend. There's a loss of innocence in childhood. There's the mental anguish suffered by all. There's a loss of trust in people, especially male authority figures, which has impacted severely relationships with family, friends and partners.
[40] Trial ts 1148.
The trial judge read passages from various victim impact statements without identifying the author, which showed the common theme to which his Honour referred.[41]
[41] Trial ts 1148 - 1149.
Personal circumstances
The trial judge made the following findings as to the respondent's personal circumstances.
The respondent was 56 years old at the time of sentencing.[42] He was born in Turkey and has three siblings. He described his childhood in Turkey as 'beautiful'. Due to his parents' work, the respondent spent periods of his childhood in Austria and Germany. The respondent left school at 13 years old and began working at his older brother's tea house. He continued working for his brother after completing two years' military service. The respondent later engaged in other security and tourism jobs.[43]
[42] The trial judge recorded that the respondent was 54 years of age at the time of sentencing (trial ts 1150). This appears to be an immaterial slip given the respondent's date of birth (White AB 41, 90; see also White AB 16, par 11).
[43] Trial ts 1150 - 1151.
The respondent met his former wife when he was 23 or 24 years old, and she was 20 years old, on holiday in Europe. They were married in Australia in 1996 and then travelled between Turkey and Australia. They have two children, who were 15 and 17 years old at the time of sentencing. The respondent immigrated to Australia in 2008 after the couple decided to stay in Australia due to difficulties with the children travelling. The respondent worked various jobs, at a carwash and then a kebab shop. He also worked on weekends at a market. The respondent and his wife separated after the respondent was charged with the current offending and subsequently divorced.[44]
[44] Trial ts 1151.
The respondent continued to deny the offending of which he had been convicted.[45]
[45] Trial ts 1151.
The respondent did not have any prior criminal convictions.[46]
[46] Trial ts 1152.
The trial judge noted positive character references received from friends, the respondent's sister‑in‑law and the secretary of the Turkish Islamic Association of WA. The trial judge noted that those references spoke to the respondent's good character and work in the community, and in some cases, the author's disbelief that the respondent committed the charged offences.[47]
[47] Trial ts 1138.
The trial judge referred to a private psychological report in relation to the respondent, which had been obtained by the respondent's solicitors. The trial judge summarised the effect of the report in the following terms:[48]
The report identifies several risk factors you possess and determine your risk of future offending which includes your denial of guilt, your lack of self-awareness and insight regarding the circumstances and motivation of your offending. You don't present with any personality, pathology or major mental disorder, and the report indicates there is no evidence of sexual deviance, that being a primary sexual interest in underage females who are strangers. However, the report does indicate that you would be at risk of reoffending when you're alone with an underage female who's known to you. You would likely seek sexual gratification by touching the victim in a sexual manner.
You indicated to the author you intend to live alone in the future, and will not employ young females or willingly expose yourself to a situation where you are alone with young females. The report indicates that if you are able to self‑manage these environmental factors and not place yourself in situations you are unlikely to sexually reoffend, and the risk of reoffending in a similar manner would be low.
With regards to receiving treatment for sex offending whilst in prison, the report indicates you're unlikely to be eligible due to your denial of offending. However, you may be available for other programs which would assist you in reducing your risk of reoffending.
[48] Trial ts 1152.
Trial judge's approach
The trial judge identified the following aggravating factors in relation to the respondent's offending:
1.The offences were committed in breach of the trust which had been placed in the respondent in the most fundamental way.[49]
2.The respondent caused all of the devastation referred to in the victim impact statements and 'ruined so many lives' for his own sexual gratification.[50]
3.The respondent continued his offending on multiple occasions and over an 18 ‑ 20 year period. As a result of the lack of complaint, the respondent became emboldened in what he could get away with. Rather than reflecting on his actions and desisting, the respondent continued and committed further offences that he thought he could get away with.[51]
4.Although for the most part the offences were towards the lower end of the scale of seriousness for child sexual offences, this was counterbalanced by the persistent, premeditated actions on the respondent's part over a lengthy period, with multiple victims who were in his care as family members or friends of the family.[52]
[49] Trial ts 1138, 1149 - 1150.
[50] Trial ts 1149.
[51] Trial ts 1150.
[52] Trial ts 1150.
The trial judge found that the character references referred to at [50] above were of little value because the offences were committed, in large part, because the respondent was placed in a position of trust because he was considered to be a 'decent, honest, hardworking man of good character'.[53]
[53] Trial ts 1138.
The trial judge identified the following mitigating factors:[54]
1.The respondent had been gainfully employed for most of his life and had been a contributing member of society.
2.The respondent had no prior criminal record.
3.The respondent made some admissions which assisted with the smooth running of the trial.
[54] Trial ts 1152.
The trial judge observed that, given the lengthy period over which the charged offences occurred, it was 'hard to say' that the respondent was of prior good character, or that the offences were an uncharacteristic aberration.[55]
[55] Trial ts 1152.
The trial judge said that, while he reduced the sentences his Honour would otherwise have imposed by reason of these mitigating factors, they were of 'minimal weight'.[56]
[56] Trial ts 1152.
The trial judge identified the general sentencing approach for child sexual offending by quoting the following passage from The State of Western Australia v Rock:[57]
Sexual offences against children are self‑evidently very serious. The consequences for the victims of such crimes are ordinarily devastating and enduring, as is revealed by the victim impact statements lodged by the first two complainants in this case. The dominant sentencing considerations are punishment, general and personal deterrence and the protection of children who, because of their lack of experience and, often, judgment, are vulnerable.
[57] The State of Western Australia v Rock [2007] WASCA 121 [11]; trial ts 1153.
His Honour also quoted the following observations in MAS v The State of Western Australia:[58]
Lack of prior conviction and previous good character is a not infrequent characteristic of cases of this kind. However, because of the serious abuse of trust inherent in cases in this category, and the abhorrence with which the community rightly regards cases of this kind, reflected by the maximum penalties imposed by the legislature, the dominant sentencing considerations in cases of this kind are personal and general deterrence, and the need to robustly denounce offending conduct of this kind and to provide support for prospective and past victims of serious abuses of trust. As a consequence, mitigatory personal circumstances and previous good character are of reduced relevance.
[58] MAS v The State of Western Australia [2012] WASCA 36 [86]; trial ts 1153.
The trial judge noted that defence counsel had rightly conceded that a sentence of immediate imprisonment was the only appropriate sentencing disposition. After identifying the individual sentences which his Honour regarded as commensurate with the seriousness of each offence, the trial judge referred to the totality principle in orthodox terms. His Honour concluded that a total effective sentence of 10 years' imprisonment was the appropriate total effective sentence, and imposed the sentences set out in the table annexed to these reasons. The respondent was made eligible for parole and the sentence was backdated to take account of time spent in custody on remand.[59]
[59] Trial ts 1153 - 1156.
General principles
The ground of appeal asserts inferred, rather than express, error. The relevant principles are well established, and were relevantly summarised in Kabambi v The State of Western Australia in the following terms:[60]
(1)Sentencing is a discretionary exercise. An appellate court can intervene only if the appellant demonstrates either an express or implied material error. Express error involves acting on a wrong principle, for example by mistaking the law or facts or taking into account an irrelevant matter. Implied error arises where the end result is so unreasonable or unjust that the court must conclude that a substantial wrong has occurred. Thus, an appellate court cannot substitute its own opinion for that of the sentencing court merely because the appellate court would have exercised a sentencing discretion differently.
…
(3)The first limb of the totality principle requires that the total effective sentence imposed on an offender who has committed multiple offences bears a proper relationship to the overall criminality involved in all of the offences (including those, if any, in respect of which the offender is still serving or is yet to serve a term of imprisonment), viewed in their entirety, having regard to all relevant facts and circumstances including those referable to the offender personally (and including, for example, the desirability of accommodating any wish to rehabilitate), all relevant sentencing factors and the total effective sentences imposed in comparable cases.
(4)The range of sentences customarily imposed for a crime does not establish the range of a sound exercise of the sentencing discretion. Sentences customarily imposed in comparable cases provide a yardstick or reference point for ensuring broad consistency in sentencing, bearing in mind the scope for significant variations in relevant sentencing factors, and that there is no single correct sentence. What is important is the unifying principles which sentences imposed in comparable cases reveal and reflect.
(5)When this court dismisses an appeal against sentence and when it resentences on a successful appeal, its decision does not fix the upper or lower limit of the range.
(6)Where there is a challenge on totality grounds, … [t]he real question is whether the total effective sentence is unreasonable or plainly unjust.
[60] Kabambi v The State of Western Australia [2019] WASCA 44 [21].
The general sentencing considerations for sexual offences against children are also well established. They were summarised in the following terms in OTR v The State of Western Australia [No 2]:[61]
[61] OTR v The State of Western Australia [No 2] [2022] WASCA 123 [55] - [57].
The authorities establish the following propositions in relation to sentencing for sexual offending against children:
1.There is no tariff for sexual offences against children. That is due to the great variation that can occur in the circumstances of the offending and the offenders themselves.
2.The primary sentencing considerations for sexual offending against children are appropriate punishment of the offender and general and personal deterrence - these considerations being informed by the need to protect vulnerable children.
3.Matters personal to an offender will ordinarily carry less weight.
4.In particular, the circumstance that an offender is otherwise of prior good character has little weight in cases of sexual offending against children. The offending is of such a nature that, until revealed, it generally will not impinge on others and will not affect their perception of the offender. Such offending can exist conformably with an otherwise apparent good character.
It was observed in 2012 that, in recent years, there had been a firming up of sentences imposed for sexual offences against children - particularly in cases involving intra‑familial sexual abuse.
Some cumulation of sentences is to be expected to reflect the fact that an offender's sexual offending against children involves multiple victims. Also, some cumulation of individual sentences is to be expected where there is repetitive and prolonged sexual offending against an individual child. This reflects the increased likelihood of significant and enduring harm that comes with such repetitive and prolonged sexual abuse, as well as to reflect the fact that the offender has not simply given way to impulse on an occasion. (citations omitted)
It is also established that the provisions of the Criminal Code (WA) which create offences of which sexual penetration is an element do not create a 'hierarchy' of sexual penetration. It should not be assumed that one form of sexual penetration is necessarily more, or less, serious than another. While patterns of sentencing for unlawful sexual penetration reveal that offences involving digital penetration are often considered less serious, and so attract lower sentences, than offences involving penile penetration, that is not always so. The seriousness of every offence of unlawful sexual penetration must be determined by its own individual circumstances.[62]
[62] YNT v The State of Western Australia [2021] WASCA 89 [207].
Pleas of guilty are ordinarily a powerful mitigating factor in cases of child sexual offending, for the reasons explained in LYN v The State of Western Australia:[63]
It was important that the mitigating effect of the pleas of guilty be reflected, not only in the individual sentences, but in the total effective sentence. That is particularly so in a case involving sexual offending against child complainants. The process of giving evidence of such offences is often re‑traumatising and damaging for the victims. Unless the benefits to the victims and the State resulting from pleas of guilty are properly reflected in the total effective sentence, there will be little incentive for an offender to plead guilty. The absence of such an incentive will increase the number of victims who are exposed to the risk of further psychological harm through the requirement for them to participate in the trial process. This court has previously recognised the appropriateness of a substantial discount for a plea of guilty in cases of sexual offending against children. (citations omitted)
[63] LYN v The State of Western Australia [2019] WASCA 45 [51].
Disposition
The State does not challenge any of the individual sentences imposed by the trial judge. The only issue in the present appeal is whether the total effective sentence of 10 years' imprisonment fails to reflect the overall criminality involved in all of the respondent's offending considered as a whole in a way that enables error to be inferred from the result.
This requires the court to undertake the difficult task referred to by Quinlan CJ in MHE v The State of Western Australia:[64]
As with many discretionary decisions, the sentencing of an offender for sexual offences against children is a difficult exercise. All such offending is inherently serious and engenders moral revulsion.
It may seem strange to some, in those circumstances, for the court to embark on a process of placing a particular offender's conduct within a scale of severity of such conduct generally, all of which is deplorable. But that is what the law requires the court to do, both at first instance and, where necessary, on appeal. The court's duty, in that regard, requires a careful consideration of all relevant sentencing principles, together with whatever guidance may be afforded by consideration of comparable cases.
[64] MHE v The State of Western Australia [2019] WASCA 133 [3] - [4].
In making the assessment of whether a total effective sentence infringes the first limb of the totality principle it is relevant to consider the total effective sentences imposed in broadly similar cases. Reference to customary sentencing standards assists to ensure broad consistency in the application of sentencing principles. However, the assistance to be obtained in considering the total effective sentences for child sexual offending is limited by the broad range of circumstances which can affect the assessment of the overall criminality involved in a series of offences. The limits in the utility of other cases are explained in OTR:[65]
In claiming that a total effective sentence infringes the first limb of the totality principle it is relevant to refer to broadly comparable cases. It must, however, be recognised that the utility of the comparable cases is limited. While providing broad guidance there will often be significant differences in the circumstances of the offending and the offenders. For example, there will often be a different mix of offences, rendering the comparison of limited utility. As was said in Pennetta v The State of Western Australia [[2013] WASCA 234 [39]]:
[T]he total effective sentence is not one imposed for a single offence. It is often difficult enough to compare sentences imposed in different cases with different factual circumstances and different personal circumstances where the offences relates only to a single offence. The fact that different offenders may have received different total effective sentences in respect of different groupings of sentences adds a level of complexity that makes comparisons difficult. Nonetheless it is important to ensure that there is broad consistency in sentences.
It is particularly the case that there is limited utility in comparing total effective sentences in the context of sexual offending against children. The total effective sentence in another case can only provide very limited guidance as to whether the total effective sentence imposed in the case under appeal infringes the first limb of the totality principle where: (1) there is no established tariff for sexual offences involving children; and (2) the range of sexual offending and sexual offenders are infinitely variable. Moreover, often, given the wide variety of combinations of offending conduct, offenders and victims involved in sexual offences against children, different views may reasonably be taken as to whether the overall criminality involved in a group of offences in one case is greater or lesser than that involved in a group of offences in a different case. That variety makes it difficult to identify direct comparators and complicates any attempt to analyse whether the total effective sentence imposed in a particular case reveals a comparatively more severe or lenient approach than that adopted in a different case.
[65] OTR [61] - [62].
This difficulty is particularly acute in the present case. The present case is unusual in that a large number of victims were exposed to the respondent's offending, but the egregiousness of the individual offences was not as great as in most cases where a total effective sentence of 10 years or more is imposed. Many of the individual offences in the present case, particularly counts involving touching the buttocks of employees in the respondent's food van, involve conduct towards the lower end of the scale of seriousness of the offences of which the respondent was convicted. That is not to say that the offences were not serious. As noted above, all sexual offending against children is deplorable. But the relative severity of much of the offending in the present case is not as egregious as the offending involved in most cases where total effective sentences of 10 years or more are imposed.
Reviews of the sentences imposed in very serious cases of sexual offending against children have been conducted in a variety of cases. A review of different categories of cases involving child sexual offending was undertaken in MHE. MHE also referred to earlier cases that had previously undertaken such a review.[66] Cases decided since MHE in which total effective sentences of 10 years or more have been imposed are broadly consistent with those reviews.[67] Sentencing patterns for total effective sentences imposed in extremely serious categories of child sexual offending were also recently referred to in LTT v The State of Western Australia.[68] However, none of these cases can be regarded as being truly comparable with the present case.
[66] MHE [82] - [92].
[67] See, for example, Coutts v The State of Western Australia [2023] WASCA 38; VDH v The State of Western Australia [2025] WASCA 10; Walsh v The State of Western Australia [2024] WASCA 78; JFB v The State of Western Australia [2024] WASCA 41; MRW v The State of Western Australia [2022] WASCA 98; JYL v The State of Western Australia [2021] WASCA 222; OTR; CGF v The State of Western Australia [2023] WASCA 187; AAE v The State of Western Australia [2024] WASCA 35.
[68] LTT v The State of Western Australia [2025] WASCA 19 [68] - [83].
The respondent did not have the mitigating benefit of a plea of guilty to any of the offences. The number of offences and number of victims is significant in assessing the overall criminality involved in all of the offending considered as a whole. The decision of this court in Lewsam v The State of Western Australia[69] illustrates that a large number of comparatively less serious offences committed against multiple complainants can justify a lengthy total effective sentence. However, the larger number of offences and victims in that case and various other facts mean that Lewsam is not truly comparable to the present case.
[69] Lewsam v The State of Western Australia [2016] WASCA 60.
The combination of the large number of victims and the nature of the offending in this case made this a difficult sentencing exercise for the trial judge. The number of victims, and the prolonged nature of the offending against RG and SM, were significant factors in the assessment of the appropriate total effective sentence in this case. The observations in the final paragraph of the decision in OTR quoted at [61] above are of particular relevance in this case.
As counsel for the respondent properly conceded, the total effective sentence imposed in this case is lenient, particularly having regard to the number of victims, the impact of the offending on the victims and the absence of mitigating factors including guilty pleas. However, 10 years' imprisonment is still a significant total effective sentence. Ultimately, we are not persuaded that the total effective sentence of 10 years' imprisonment was so lenient as to be unreasonable or plainly unjust, so that error in the exercise of the trial judge's sentencing discretion can be inferred from the outcome. In this difficult case, it was open to the trial judge to take the view that a total effective sentence of 10 years' imprisonment reflected the overall criminality involved in all of the respondent's offending having regard to all of the circumstances, including those personal to the respondent. His Honour has not been shown to have erred in the exercise of the sentencing discretion which the law reposes in a trial judge.
Orders
For the above reasons, appellable error has not been established in this case. The appeal must therefore be dismissed.
Attachment: Table of Offences and Sentences
| Count | Date(s) | Offence | Maximum penalty | Sentence of Imprisonment | Accumulation |
| Offending against RG | |||||
| 1 | Unknown between 22.05.2001 and 23.05.2003 | Sexual penetration of a child under 13 years by penetrating her vagina with his finger (Criminal Code (WA) s 320(2)) | 20 years | 3 years 6 months | Concurrent |
| 2 | Same as count 1 | Indecent dealing of a child under 13 years by placing her hand on his penis (Criminal Code s 320(4)) | 10 years | 12 months | Concurrent |
| 3 | Unknown between 22.05.2001 and 23.05.2003 | Sexual penetration of a child under 13 years by penetrating her vagina with his finger (Criminal Code s 320(2)) | 20 years | 4 years | Head sentence |
| 4 | Same as count 3 | Indecent dealing of a child under 13 years by placing her hand on his penis (Criminal Code s 320(4)) | 10 years | 12 months | Concurrent |
| 5 | Unknown between 22.05.2002 and 23.05.2005 | Sexual penetration of a child under 13 years by penetrating her vagina with his finger (Criminal Code s 320(2)) | 20 years | 2 years 6 months | Concurrent |
| 6 | Unknown between 22.05.2009 and 23.05.2011 | Unlawful and indecent assault by touching her buttocks (Criminal Code s 323) | 5 years | 4 months | Concurrent |
| Offending against SM | |||||
| 7 | 29.01.2011 | Indecent dealing of a child under 13 years by touching her buttocks (Criminal Code s 320(4)) | 10 years | 8 months | Concurrent |
| 8 | Same as count 7 | Sexual penetration of a child under 13 years by penetrating her vagina with his finger (Criminal Code s 320(2)) | 20 years | 3 years 6 months | Concurrent |
| 9 | Unknown between 29.01.2011 and 09.01.2012 | Indecent dealing of a child under 13 years by placing her hand on his penis (Criminal Code s 320(4)) | 10 years | 12 months | Concurrent |
| 10 | Same as count 9 | Encouraging a child under 13 years to do an indecent act, namely kiss his penis (Criminal Code s 320(5)) | 10 years | 8 months | Concurrent |
| 11 | Unknown between 08.01.2016 and 09.01.2019 | Indecent dealing of a child over 13 and under 16 years by touching her vaginal area (Criminal Code s 321(4)) | 7 years | 15 months | Concurrent |
| 12 | Same as count 11 | Sexual penetration of a child over 13 and under 16 years by penetrating her vagina with his finger (Criminal Code s 321(2)) | 14 years | 3 years | Concurrent |
| 13 | Unknown between 08.01.2017 and 09.01.2018 | Indecent dealing of a child over 13 and under 16 years by touching her buttocks (Criminal Code s 321(4)) | 7 years | 8 months | Concurrent |
| 14 | Same as count 13 | Sexual penetration of a child over 13 and under 16 years by penetrating her vagina with his finger (Criminal Code s 321(2)) | 14 years | 3 years 6 months | Cumulative |
| Offending against EH | |||||
| 15 | Unknown between 25.10.2013 and 27.10.2014 | Indecent dealing of a child over 13 and under 16 years by touching her vaginal area (Criminal Code s 321(4)) | 7 years | 15 months | Concurrent |
| Offending against KV | |||||
| 16 | Unknown between 07.10.2014 and 19.08.2018 | Indecent dealing of a child under 13 years by touching her vaginal area (Criminal Code s 320(4)) | 10 years | 15 months | Concurrent |
| 17 | 06.04.2019 | Indecent dealing of a child over 13 and under 16 years by touching her vaginal area (Criminal Code s 321(4)) | 7 years | 15 months | Concurrent |
| Offending against TMC | |||||
| 18 | 24.12.2018 | Indecent dealing of a child over 13 and under 16 years by touching her buttocks (Criminal Code s 321(4)) | 7 years | 8 months | Concurrent |
| 19 | 04.03.2019 | Indecent dealing of a child over 13 and under 16 years by touching her buttocks (Criminal Code s 321(4)) | 7 years | 8 months | Concurrent |
| 20 | Unknown between 22.08.2019 and 26.08.2019 | Indecent dealing of a child over 13 and under 16 years by pressing his penis against her vaginal area (Criminal Code s 321(4)) | 7 years | 2 years | Concurrent |
| 21 | Unknown between 14.03.2018 and 15.03.2020 | Indecent dealing of a child over 13 and under 16 years by touching her buttocks (Criminal Code s 321(4)) | 7 years | 6 months | Concurrent |
| 22 | Same as count 21 | Indecent dealing of a child over 13 and under 16 years by touching her buttocks (Criminal Code s 321(4)) | 7 years | 6 months | Concurrent |
| Offending against NC | |||||
| 23 | 16.02.2019 | Indecent dealing with a child of or over 16 years under care, supervision or authority by touching her buttocks (Criminal Code s 322(4)) | 5 years | 6 months | Concurrent |
| 24 | On or about 17.02.2019 | Indecent dealing with a child of or over 16 years under care, supervision or authority by touching her buttocks (Criminal Code s 322(4)) | 5 years | 18 months | Cumulative |
| Offending against AV | |||||
| 25 | On or about 04.05.2019 | Indecent dealing with a child of or over 16 years under care, supervision or authority by touching her groin area (Criminal Code s 322(4)) | 5 years | 18 months | Concurrent |
| Offending against PB | |||||
| 26 | Unknown between 11.02.2019 and 12.02.2020 | Indecent dealing of a child over 13 and under 16 years by touching her buttocks (Criminal Code s 321(4)) | 7 years | 6 months | Concurrent |
| 27 | Unknown between 24.07.2020 and 17.09.2020 | Indecent dealing with a child of or over 16 years under care, supervision or authority by touching her vaginal area(Criminal Code s 322(4)) | 5 years | 12 months | Cumulative |
| Offending against TK | |||||
| 28 | Unknown between 01.10.2019 and 01.08.2020 | Indecent dealing of a child over 13 and under 16 years by touching her buttocks (Criminal Code s 321(4)) | 7 years | 6 months | Concurrent |
| 29 | Unknown between 30.11.2020 and 01.03.2021 | Indecent dealing of a child over 13 under 16 years by touching her buttocks (Criminal Code s 321(4)) | 7 years | 6 months | Concurrent |
| Total effective sentence | 10 years | ||||
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
KP
Associate to the Hon Justice Mitchell
1 APRIL 2025
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