The State of Western Australia v MGA - [2024] WASCA 108

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT :   THE COURT OF APPEAL (WA)
CITATION:   THE STATE OF WESTERN AUSTRALIA -v- MGA [2024] WASCA 108
CORAM:   BUSS P
HALL JA
VANDONGEN JA

HEARD:   7 AUGUST 2024
DELIVERED          :   17 SEPTEMBER 2024
FILE NO/S:   CACR 62 of 2024
BETWEEN:   THE STATE OF WESTERN AUSTRALIA
Appellant
AND
MGA
Respondent

ON APPEAL FROM:
Jurisdiction              :   DISTRICT COURT OF WESTERN AUSTRALIA
Coram:   BOWDEN DCJ
File Number            :   IND 1399 of 2023

Catchwords:

Criminal law - State appeal against sentence - Child sexual offences - Whether individual sentences of 18 months' imprisonment for sexual penetration offences manifestly inadequate - Whether total effective sentence of 3 years' imprisonment breaches first limb of the totality principle - Whether prison conditions justify exercise of the residual discretion

Legislation:

Criminal Code (WA), s 321(2), s 321(3), s 321(4)

Result:

Appeal allowed
Respondent resentenced

Category: B

Representation:

Counsel:

Appellant	:	K Cook
Respondent	:	S H King

Solicitors:

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

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

Amedi v The State of Western Australia [2022] WASCA 172
Coutts v The State of Western Australia [2023] WASCA 38
Deering v The State of Western Australia [2007] WASCA 212
GNR v The State of Western Australia [2015] WASCA 5
Green v The Queen [2011] HCA 49; (2011) 244 CLR 462
Houghton v The State of Western Australia [2006] WASCA 143
Kabambi v The State of Western Australia [2019] WASCA 44
MHS v The State of Western Australia [2023] WASCA 175
OTR v The State of Western Australia [No 2] [2022] WASCA 123
Poulton v The State of Western Australia [2008] WASCA 97
Riggall v The State of Western Australia [2008] WASCA 69; (2008) 37 WAR 211
Tapper v The State of Western Australia [2016] WASCA 140
The State of Western Australia v HNU [2023] WASCA 6
The State of Western Australia v Pereira [2023] WASCA 162
The State of Western Australia v Porter [2008] WASCA 154
The State of Western Australia v SJH [2010] WASCA 40; (2009) 200 A Crim R 228
The State of Western Australia v ZER [2024] WASCA 84
VIM v The State of Western Australia [2005] WASCA 233; (2005) 31 WAR 1
WNO v The State of Western Australia [2021] WASCA 141

JUDGMENT OF THE COURT:

In 2022, the respondent needed accommodation and was invited to live at a friend's house. The respondent was between 35 ‑ 36 years old at the time. His friend had a 14‑year‑old daughter who was also living at the house. After staying at the house for approximately one month, the respondent began to engage in sexual activity with the child.
The respondent committed a total of 12 sexual offences against the child on six separate occasions over approximately four months. The offences included two counts of indecent dealing with a child of or over the age of 13 years and under the age of 16 years,[1] one count of encouraging a child of or over the age of 13 years and under the age of 16 years to engage in sexual behaviour,[2] and nine counts of sexual penetration of a child of or over the age of 13 years and under the age of 16 years.[3]
[1] Criminal Code (WA), s 321(4) (the Code).
[2] Code, s 321(3).
[3] Code, s 321(2).
The respondent denied the offences when interviewed by the police. He maintained his innocence and pleaded not guilty to the charges. He was convicted of the 12 offences after trial. He was sentenced to 6 months' imprisonment for each of the indecent dealing offences, 12 months' imprisonment for the offence of encouraging the complainant to engage in sexual behaviour and 18 months' imprisonment for each of the sexual penetration offences. Two of the sentences for the sexual penetration offences were made cumulative and the other sentences were made concurrent. The total effective sentence was 3 years' immediate imprisonment. An order was made that the respondent be eligible for parole.
The State appeals against the sentence. There are two grounds of appeal. The first ground is that the terms of 18 months' imprisonment for each of the sexual penetration offences were manifestly inadequate. The second ground is that the total effective sentence of 3 years' immediate imprisonment infringes the first limb of the totality principle in that it was disproportionate to the overall criminality of the respondent's offending.
Leave to appeal was granted by Buss P on 24 June 2024.
For the reasons that follow, the grounds of appeal have been made out. The individual sentences of 18 months for each of the sexual penetration offences do not adequately reflect the seriousness of those offences. Those sentences are unreasonable or plainly unjust. Furthermore, the total effective sentence of 3 years' immediate imprisonment was not proportionate to the overall criminality of the offending.
There are no grounds for exercising the residual discretion to dismiss the appeal. Error has been clearly established. There is a need to maintain proper sentencing standards and provide guidance to sentencing judges. The State appeal was brought promptly and has been dealt with without delay. Matters raised by the respondent, in particular the prison conditions under which he has served his sentence to date, are matters that are relevant to resentencing but do not justify the exercise of the residual discretion.
The appeal should be allowed, and the respondent resentenced to a total effective sentence of 6 years' imprisonment, with eligibility for parole.

The facts

As noted, the respondent was convicted after trial. The facts as found by the sentencing judge are not challenged and can be summarised as follows.
At the time of counts 1 ‑ 7, the respondent was residing with the family of the complainant. He spent part of his time in the lounge room of the house and the balance living in what was referred to as a shed at the back of the house. The complainant was 14 years old at this time and the respondent knew that she was attending school.[4]
[4] ts 362.
Counts 1 and 2 occurred on or about 17 March 2022, on an occasion when the respondent and the complainant were together in the lounge room. The respondent put his fingers in and out of the complainant's vagina for about five minutes. He then asked if he could put 'it' in. The complainant said 'okay'. She said in evidence that she was enjoying what was occurring but was really confused. The respondent pulled his shorts down and penetrated the complainant's vagina with his penis.[5]
[5] ts 362.
The act of penetrating the complainant's vagina by the respondent with his fingers constitutes count 1 on the indictment, a charge of sexual penetration of a child. The penetration of the complainant's vagina by the respondent with his penis constitutes count 2, a further charge of sexual penetration of a child.[6]
[6] ts 362.
Counts 3 and 4 occurred on a date unknown between 16 March 2022 and 1 July 2022, on an occasion when the complainant was with the respondent in the shed. The respondent's 9‑year‑old son was also present. The complainant was curled up in a ball on a couch and the respondent touched her thighs, hips and bottom area. He then pulled the complainant on top of him and put his penis on her vagina. He then pulled her boxer shorts to one side and inserted his penis into her vagina. Sometime later the complainant and the respondent were lying on his bed. The complainant had a blanket wrapped around her. The respondent put his arms under the blanket and rested his hand on the complainant's leg and rubbed her thigh.[7]
[7] ts 362 - 363.
The act of penetrating the complainant's vagina by the respondent with his penis constitutes count 3, a charge of sexual penetration of a child. The act of touching the complainant's thigh constitutes count 4, an offence of indecent dealing with a child.[8]
[8] ts 362 - 363.
Count 5 occurred on another date unknown between 16 March 2022 and 1 July 2022, on an occasion when the complainant was in a bedroom in the house. The respondent came into the room and threw a condom towards the complainant, saying, 'Come out to me when you want and bring this'. The complainant did not go out to see the respondent and he later sent a text to her but did not make any further effort to go back to the house. That conduct constitutes count 5, a charge of encouraging a child to engage in sexual behaviour.[9]
[9] ts 363.
Count 6 occurred on another date unknown between 16 March 2022 and 1 July 2022, on an occasion when the respondent and the complainant were in the shed together. At the time the complainant was having her menstrual period. They were watching television and smoking. The respondent touched the complainant's thigh and rubbed her clitoris over her shorts. He then asked if she would suck his penis. The complainant responded, 'Why not?'. She then performed oral sex on the respondent. The respondent ejaculated inside her mouth and she swallowed. The act of the respondent introducing his penis into the mouth of the complainant constitutes count 6 on the indictment, a charge of sexually penetrating a child.[10]
[10] ts 363.
Count 7 occurred on or about 3 April 2022, on an occasion when the respondent and the complainant were in the lounge room of the house. The complainant was seated on a couch. The respondent touched the complainant's upper thigh and knee. That act of touching constitutes count 7 on the indictment, a charge of indecent dealing with a child.[11]
[11] ts 363.
After count 7 had occurred, the respondent moved out of the house and went to live in a caravan at a caravan park. The complainant remained living at home with her mother and stepfather. The respondent invited the complainant to come to the caravan park to visit him. She agreed and caught public transport to a train station that was close to the caravan park. The respondent picked her up from the train station and took her to the caravan park. They watched movies together in the caravan whilst lying on a bed. The respondent groped the complainant's breasts and then inserted his fingers into her vagina. The respondent then put his penis into her vagina. He then moved the complainant so that she was lying on her stomach and penetrated her vagina again with his penis.[12]
[12] ts 363.
The act of penetrating the complainant's vagina by the respondent with his fingers constitutes count 8, a charge of sexually penetrating a child. The first act of penetrating the complainant's vagina by the respondent with his penis constitutes count 9, a further charge of sexually penetrating a child. The second act of penetrating the complainant's vagina by the respondent with his penis while she was lying on her stomach constitutes count 10, a further charge of sexually penetrating a child.[13]
[13] ts 363.
Later the same night, when the complainant and respondent were lying down on the bed watching movies, the complainant pulled the respondent's boxer shorts down and sucked his penis. The respondent then put his penis into the complainant's vagina. The complainant said that on this occasion, she suffered pain in her vagina.[14]
[14] ts 363 - 364.
The act of the respondent in introducing his penis into the mouth of the complainant constitutes count 11, a charge of sexually penetrating a child. The act of penetrating the vagina of the complainant by the respondent with his penis constitutes count 12, the final charge of sexually penetrating a child.[15]
[15] ts 363 - 364.

Personal circumstances

The respondent was between 35 ‑ 36 years old at the time of the offending and was 37 years old at the time of sentencing.
The respondent's childhood was described as dysfunctional and characterised by violence, instability and neglect. On occasions, he was placed in foster care. He is one of four siblings. His parents separated when he was 6 years old and he remained with his mother for two years. His father then obtained custody of the children. His father was very strict and heavy‑handed with discipline. However, the respondent denied that there was any substance abuse, domestic violence or sexual abuse in the family home. The respondent's father died in 2020 and the respondent has had no contact with his mother for over 20 years.[16]
[16] Pre-sentence report, dated 17 May 2024, 3.
The respondent completed school to year 7 but left school halfway through year 8 to become a roof tiler. He struggled with literacy. He had trouble at school and retaliated when bullied. That resulted in disciplinary action being taken against him.[17]
[17] Pre-sentence report, dated 17 May 2024, 3.
After leaving school, the respondent worked in roof tiling for a couple of years before seeking a change by working in the hospitality industry. He also worked on a prawn trawling vessel and on a farm. He plans to return to roof tiling after release.[18]
[18] Pre-sentence report, dated 17 May 2024, 3.
The respondent has had three significant relationships. The first, which commenced when the respondent was 17 years old, produced a son who is now 18 years old. The respondent has no contact with this son, who was raised by his maternal grandparents. The respondent commenced his next relationship when he was 22 years old. The respondent has described this relationship in very positive terms and said that his partner changed his life for the better, including teaching him how to read and write and how to use automatic teller machines. This relationship produced four children, who were aged between 3 and 14 at the time of sentencing. The relationship ended when the respondent was serving a prison sentence for unrelated matters in 2019 and his partner met someone else. The respondent admitted that there had been some domestic violence in this relationship resulting in involvement of the Department for Child and Family Services. The respondent met his current partner in 2022.[19]
[19] Pre-sentence report, dated 17 May 2024, 3.
The respondent suffered an injury as a result of a motorcycle accident in 2017. He believes that he may be suffering from post‑traumatic stress disorder as result of that accident, though there has been no formal diagnosis. There were also references in reports to the respondent having depressive symptoms, though he has not received medication or sought professional help in that regard.[20]
[20] Pre-sentence report, dated 17 May 2024, 4.
The respondent has a long history of drug and alcohol abuse. He commenced alcohol use at 13 years of age and admits to excessive use whilst he was working as a roof tiler. He commenced using cannabis at 12 years of age and soon progressed to daily use. He commenced methylamphetamine use at 15 years of age and this progressed to daily use between the ages of 18 and 22. He reported ceasing use of methylamphetamine at age 22, when he met his second partner.[21]
[21] Pre-sentence report, dated 17 May 2024, 4.
The respondent has a criminal record, which has resulted in him being imprisoned on prior occasions. His adult offending includes traffic offences, stealing, assault, drug offences, being armed in a way that may cause fear, and multiple breaches of family violence restraining orders. He has served a number of terms of imprisonment: in 2009 for driving whilst disqualified; in 2018, again for driving whilst disqualified; in 2019 for offences including driving whilst disqualified, being armed in a way that may cause fear, breach of an intensive supervision order, breach of bail, common assault and breach of a family violence restraining order; and in 2020, for driving whilst disqualified. The respondent has not previously committed any sexual offences.[22]
[22] Pre-sentence report, dated 17 May 2024, 1 - 2; WAB 69 - 77.

Pre-sentence report

A pre‑sentence report was obtained for the purposes of sentencing. The report notes that the respondent has a moderate offending history with a pattern of antisocial behaviours and disregard for the law. His convictions reflect anti‑authoritarian attitudes, including breaching orders, driving whilst disqualified and an escalation of domestic violence incidents from 2014. The respondent's offending is underpinned by substance misuse, poor emotional functioning, immaturity, poor coping skills, poor consequential thinking, pro‑criminal attitudes, anger and a victim mentality.[23]
[23] Pre-sentence report, dated 17 May 2024, 1 - 2.
The pre‑sentence report also states that the respondent has led a chaotic and transient life, with accommodation instability, relationship issues, a lack of conflict resolution and stress resilience skills, and difficulty in self‑managing his mental health. He has demonstrated poor compliance with previous periods of community supervision.[24]
[24] Pre-sentence report, dated 17 May 2024, 1.
The pre‑sentence report states that the respondent was at a loss to explain the present offending and denied the offences or any sexualised behaviour towards the complainant. The report states that the respondent lacked insight and stated a belief that the offences only came to light after he moved out and was no longer funding the lifestyle of the complainant and her mother. The report states that the respondent minimised his involvement, lacked awareness of high‑risk situations and failed to take any responsibility for his actions. It was suggested in the report that the respondent may benefit from a sex offender program and counselling, though he has stated that he does not believe that he needs counselling.[25]
[25] Pre-sentence report, dated 17 May 2024, 2.
The respondent's account to the report writer of the relevant circumstances of the offences was that he met the complainant and her mother in early 2022. He had no accommodation at that time and was invited to stay at their home for a few days. As he was employed the complainant's mother allowed him to stay for a longer period in the back shed. He said that he felt lonely at times and became friends with the complainant as they would often talk after he finished work.[26]
[26] Pre-sentence report, dated 17 May 2024, 2.
The pre‑sentence report states that the respondent 'claimed he was unaware of the victim's age as she presented to be much older stating "I knew she was in high school and thought she was in her final year"'.[27]
[27] Pre-sentence report, dated 17 May 2024, 2.

Victim impact

The complainant provided a victim impact statement in which she said that as a result of the offending she sees a counsellor, but still feels anxious in public and at home. She is concerned that something may happen to her because she spoke up about the abuse. She feels anxious when she sees men who look similar to the respondent and finds it hard to be around most men.
The complainant's social life has suffered because she has lost friends who do not know the whole story. After the offending she felt 'gross' and 'grungy'. She could not rid herself of this feeling however much soap she used or how hard she scrubbed. She feels embarrassed about what occurred and has constant memories of the events, especially at night when she is trying to sleep.
The complainant said that she found the trial 'horrible' as she had to relive everything. It was also difficult because it was put to her in cross‑examination that the abuse did not happen.

Sentencing remarks

The grounds of appeal assert implied errors. It is not suggested that there are any express errors in the learned sentencing judge's sentencing remarks. However, the respondent sought to draw some support from the fact that the sentencing judge did not make some findings that could have been adverse to the respondent. In particular, that his Honour did not make a finding that the respondent knew that the complainant was aged 14 at the time of the offending.[28]
[28] WAB 7, 30 - 31.
The sentencing judge noted that the complainant was 14 years old and was living at home at the time of the offending. His Honour found that the respondent was aware that the complainant was attending school but made no express finding that he was aware that she was 14 years old. Knowledge of the age of the complainant was not an element of the offences and it was not a necessary implication of the verdicts that the respondent had such knowledge. The significance of this will be considered later in these reasons.

The sentencing judge sentenced the respondent on the basis that the complainant was a willing participant in the sexual activity. His Honour noted that before the respondent and the complainant had sexual intercourse on the first occasion, the respondent had asked if he could 'stick it in' and that the complainant had agreed. In relation to counts 8 ‑ 12, there was no dispute that the complainant travelled to meet the respondent and that in doing so she knew that they were going to engage in sexual activity.[29] His Honour then said:[30]
There is no doubt that, for whatever reason, she was prepared to be involved in sexual activities with you. I accept that you didn't use any force or use any elements of bribery or physical violence and sentence you on the basis that I've indicated. However, the whole gravamen of this offence is that the law prohibits sexual activity with a child under the age of 16.
And the reason for that is that children of that age, although they're physically capable of having sexual activity, lack the emotional maturity [they need] to handle the consequences of such activity, and need, on occasions, to be protected from themselves. As the adult, you're expected to refrain from such sexual activity.
The gravamen of the offence is constituted by the age disparity. At the time of the offences, she was 14 and you were approximately 37 years of age.[31] As I have said, you, as the adult, were expected to refrain from such sexual activity. Now, the offending took place over a relatively brief period of time, but it is a period of time that spanned approximate[ly] four months.
[29] ts 364.
[30] ts 364.
[31] In fact, the appellant was 35 or 36 years of age at the time of the offending, but the difference is immaterial.
The sentencing judge noted that it had been put in sentencing submissions that the respondent had a good employment record and that the offending had occurred at a difficult time in his life. His relationship with his wife had broken down and he had lost his house. His life was in 'somewhat disarray' and he was consuming alcohol and cannabis. However, his Honour recognised that there were other factors that needed to be taken into account, including the need to properly punish the respondent and to protect the community and to deter other people from committing offences of this nature. Personal deterrence and the respondent's rehabilitation were also considerations.[32]
[32] ts 366 - 367.
The sentencing judge referred to the fact that offending of this nature can have a profound effect on young victims. His Honour referred to victims often being distrustful of older people, particularly other males and to disharmony in relationships with their own age peers. He noted the potential for such offending to affect a victim's education and their ability to sleep, and that such effects could continue in the longer‑term.[33]
[33] ts 366.
The sentencing judge said that given the seriousness of the offending, the age of the complainant, the age of the respondent, the period of time that the offending continued, and the number of offences, imprisonment was the only appropriate disposition.[34] His Honour then said:[35]
The need for general deterrence to send a clear message to members of the community that this sort of behaviour will not only not be tolerated by the community but will be properly punished means that your personal circumstances, whilst not forgotten, take second place to the need for a sentence of general deterrence.
[34] ts 367.
[35] ts 367.
The sentencing judge also considered that a wholly suspended sentence would be inappropriate having regard to the seriousness of the offences and the need for general deterrence. His Honour said that having reached those conclusions, the sentence that he imposed should be no more than was necessary to achieve the aims of just punishment, retribution and deterrence.[36]
[36] ts 367.
The sentencing judge imposed the following sentences: in respect of each of the indecent dealing offences, 6 months' imprisonment; in respect of the offence of encouraging the complainant to engage in sexual activity, 12 months' imprisonment; and in relation to each of the sexual penetration charges, 18 months' imprisonment. His Honour ordered that two of the sentences for the sexual penetration offences, being counts 3 and 9, should be served cumulatively and that the balance of the sentences should be served concurrently. This produced a total effective sentence of 3 years' immediate imprisonment.
That sentence was backdated to 5 December 2022 to take into account time spent by the respondent in custody. An order was made that the respondent would be eligible for parole. The effect of that order was that the respondent became eligible for parole after serving one half of that sentence, that is on 6 June 2024.[37]
[37] ts 367 - 368.

Grounds of appeal

The grounds of appeal are as follows:[38]
1.The learned sentencing judge erred in law by imposing terms of 18 months' imprisonment in respect of each of the offences of sexual penetration of a child of or over the age of 13 years and under the age of 16 years, contrary to ss 321(2) and 321(7)(a) of the Criminal Code, (namely counts 1, 2, 3, 6, 8, 9, 10, 11 and 12) such terms being so inadequate as to manifest error.
2.The learned sentencing judge erred in law by imposing a total effective sentence of 3 years' imprisonment, which infringed the first limb of the totality principle in that it was disproportionate to the overall criminality of the respondent's offending.
[38] WAB 7.

Relevant legal principles

The State has a right to appeal against a sentence pursuant to s 24(1)(a) of the Criminal Appeals Act 2004 (WA) (the Act). An appeal against sentence depends on the appellant establishing error on the part of the primary court. Even if error is established, this court may only allow the appeal if, in its opinion, a different sentence should have been imposed.
The general principles governing appeals contending that errors should be inferred on the basis that an individual sentence is manifestly excessive or manifestly inadequate or that the total effective sentence infringes the totality principle are well established. Those principles were summarised in Kabambi v The State of Western Australia[39] and recently applied in the context of State appeals against sentences imposed for sexual offences in The State of Western Australia v HNU[40] and The State of Western Australia v Pereira.[41]
[39] Kabambi v The State of Western Australia [2019] WASCA 44.
[40] The State of Western Australia v HNU [2023] WASCA 6.
[41] The State of Western Australia v Pereira [2023] WASCA 162.
A ground of appeal that alleges that an individual sentence is manifestly inadequate asserts the existence of an implied error. Implied error arises where the end result is so unreasonable or unjust that the court must conclude that a substantial wrong has occurred. In order to determine whether a sentence for an individual offence is manifestly inadequate, the offence should be viewed in light of the maximum sentence prescribed by law for the crime, the standards of sentencing customarily imposed with respect to it, the place that the criminal conduct occupies on the scale of seriousness of crimes of that type, and the offender's personal circumstances.[42]
[42] HNU [61]; Kabambi [21].
A ground of appeal that alleges that a total effective sentence breaches the totality principle also asserts the existence of implied error, that is that the outcome is so plainly unreasonable or unjust that an error can be inferred, even though no error is apparent in the reasons of the sentencing judge. 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. The offences must be 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. A total effective sentence may breach the totality principle because it is either too high or too low to bear a proper relationship to the overall criminality.[43]
[43] Kabambi [21]; Pereira [42].
In OTR v The State of Western Australia [No 2],[44] this court stated that the well‑established general principles applicable to the sentencing of offenders convicted of sexual offending against children are as follows:
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. (footnotes omitted)
[44] OTR v The State of Western Australia [No 2] [2022] WASCA 123 [55] ‑ [57].
The policy underlying s 321(2) of the Code is not only to protect children from abuse by sexual predators, but also to protect children from themselves.[45] That phrase does not imply that children can in any way be complicit in sexual offending against them. The meaning was explained in Deering v The State of Western Australia, where Wheeler JA said:[46]
It is, no doubt, undesirable that young people should embark upon sexual activity at an age at which they may be unable to fully comprehend or to cope with the social and emotional consequences of that activity. To that extent, the legislation is intended to protect young people 'from themselves'.
However, the legislation is also, and, in my view, more importantly, directed to ensuring that those who do not consent to sexual activity are not required to engage in it. In this context, it is recognised that the capacity of a person in this age group to resist moral, social, emotional or other pressure from a person more mature than themselves may be very limited. I set out some of the legislative background in Marris v R [2003] WASCA 171. At [13] of that decision, I noted the comment by the Hon J M Berinson, the then Attorney‑General, that ' … the clear intention and target is not sexual activity as such, but sexual activity involving some element of abuse'. I said there, and I repeat, that that is a concept of considerable importance in relation to sentencing in respect of offences of this kind. The greater the element of abuse, as evidenced by matters such as disparity in age, or the use of force, or other types of pressure, or of a pattern of 'grooming' behaviour, or a betrayal of trust, the greater the culpability.
[45] Deering v The State of Western Australia [2007] WASCA 212 [17] (Wheeler JA); GNR v The State of Western Australia [2015] WASCA 5 [61] (McLure P).
[46] Deering [17] - [18].
'Consent' by the child is not irrelevant in sentencing an offender who has committed an offence against s 321(2) of the Code, but its relevance and weight will vary considerably, depending upon the particular facts and circumstances.[47] In The State of Western Australia v SJH,[48] Wheeler JA made these observations about the circumstances in which proved absence of 'consent', absence of evidence concerning 'consent', and proved free and voluntary 'consent' may be an aggravating, neutral or mitigating factor:
Proved absence of consent or, particularly, knowledge of absence of consent is aggravating: Poulton v The State of Western Australia [2008] WASCA 97 per McLure P at [3]. I would add that it may be aggravating that the consent has been procured through what might be described as persistent grooming or persuasion, or by the use of some other sort of influence falling short of coercion. Absence of evidence concerning consent is, of course, neutral. However, knowledge of free and voluntary consent, particularly where the child has initiated the conduct in question, would appear to me to be mitigating, when regard is had to the legislative structure and purpose described above. Whether a fact is aggravating or mitigating is to be considered in connection with the purpose for which it is to be used: R v Storey [1998] 1 VR 359 at 371, cited in Weininger v The Queen [2003] HCA 14; (2003) 212 CLR 629, 638. If the primary purpose of the legislation is to protect children from 'abuse', actual absence of abuse, would appear, necessarily, to be mitigatory.
[47] Riggall v The State of Western Australia [2008] WASCA 69; (2008) 37 WAR 211 [22] (Wheeler JA).
[48]The State of Western Australia v SJH [2010] WASCA 40; (2009) 200 A Crim R 228 [69].
While the interests of consistency require that regard be had to the sentences customarily imposed in cases involving similar offending, the range of sentences that have been imposed in the past does not fix the boundaries within which future judges must or even ought to sentence. The limited utility of broadly comparable cases has been emphasised in the context of sexual offending, including sexual offending against children, given the wide variety of combinations of offending conduct involved in such offending. In OTR [No 2], this court said:[49]
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. (footnotes omitted)
[49] OTR [No 2] [62].

The appellant's submissions

The appellant submits that there are several features that demonstrate the seriousness of the respondent's offending:[50]
1.That the respondent was a guest who took advantage of that status to offend against the complainant.
2.That the respondent knew the complainant's age.
3.The significant age disparity between the respondent and the complainant.
4.That the offending occurred over approximately four months and encompassed six different incidents and continued even after the respondent had moved out of the house,
5.That the respondent did not use protection on any of the occasions of sexual intercourse (though it accepted that there was no finding by the sentencing judge in that regard).
[50] WAB 18.
The appellant submits that when the individual sentences are examined in light of the maximum statutory penalty, the standards of sentencing customarily observed in other cases, the place that the offending occupies on the scale of seriousness of offences of this type, and the respondent's personal circumstances, the individual terms of 18 months' immediate imprisonment for each of the sexual penetration offences are so inadequate as to manifest error. These individual terms are said to fail to reflect the seriousness of the offending and to fail to properly give effect to the need for sentencing to denounce such offending and promote general deterrence.[51]
[51] WAB 24 - 25.
The appellant also submits that the total effective sentence of 3 years' immediate imprisonment fails to reflect the seriousness of the respondent's offending as a whole. In particular, that sentence fails to reflect the number of occasions on which offences occurred, the number of instances of unprotected penile penetration, the significant age disparity, and that the respondent offended against the complainant in her own home.[52]
[52] WAB 25.
As to comparable cases, the appellant referred to MHS v The State of Western Australia;[53] Coutts v The State of Western Australia;[54] Amedi v The State of Western Australia;[55] and WNO v The State of Western Australia.[56] In doing so, the appellant acknowledged that the wide variation in the circumstances of offences and offenders involved in sexual offending significantly limits the utility of comparing the total effective sentences imposed in different cases. However, the cases were said to demonstrate that both the individual sentences imposed for the sexual penetration offences and the aggregate sentence are unreasonable or plainly unjust.[57]
[53] MHS v The State of Western Australia [2023] WASCA 175.
[54] Coutts v The State of Western Australia [2023] WASCA 38.
[55] Amedi v The State of Western Australia [2022] WASCA 172.
[56] WNO v The State of Western Australia [2021] WASCA 141.
[57] WAB 12.

The respondent's submissions

The respondent submits that the sentencing judge made a finding that the respondent knew that the complainant was at school, but not that the respondent knew that the complainant was 14 years old at the time of the offending. Further, the respondent refers to evidence given by the complainant in cross‑examination in which she said that she had told him that she was 14 or 'at least told him what grade [she] was in' but could not remember when she had told him this. The respondent says that it was not possible based on this evidence to draw a conclusion beyond reasonable doubt that the respondent knew that the complainant was 14 years old at the time of the offending.[58]
[58] WAB 30 - 31.
The respondent submits that the appellant's reliance on MHS, Coutts and WNO is misplaced. Each of those cases is said to have features which make them more serious than the offending of the respondent. As to Amedi, the respondent submits that the individual sentences of 2 years' immediate imprisonment imposed in that case for sexual penetration offences demonstrate that the individual sentences of 18 months for similar offences in this case were within an appropriate range.[59]
[59] WAB 31 - 33.
The respondent also refers to Tapper v The State of Western Australia.[60] The respondent suggests that the individual sentences of 2 years' immediate imprisonment imposed on each of the three sexual penetration counts in that case, to be served concurrently, support a conclusion that in the present case both the individual sentences for the sexual penetration offences and the total effective sentence were a proper exercise of the discretion of the sentencing judge.[61]
[60] Tapper v The State of Western Australia [2016] WASCA 140.
[61] WAB 33.

The respondent also refers to the recent case of The State of Western Australia v ZER[62] and suggests the case can be distinguished as it had a number of features which made it more serious and justified the imposition of a longer sentence.[63]
[62] The State of Western Australia v ZER [2024] WASCA 84.
[63] WAB 33 - 35.

Merits of the appeal

The maximum penalty for an offence of sexual penetration of a child of or over the age of 13 years and under the age of 16 years is 14 years' imprisonment.[64]
[64] Code, s 321(7)(a).
The maximum penalty for an offence of encouraging a child aged over 13 years and under 16 years to engage in sexual behaviour is 14 years' imprisonment.[65]
[65] Code, s 321(7)(a).
The maximum penalty for an offence of indecently dealing with a child of or over the age of 13 years and under the age of 16 years is 7 years' imprisonment.[66]
[66] Code, s 321(8)(a).
In the present case, the respondent was an invited guest living in the home of the complainant. Whilst he was not in a position of care, supervision or authority over the complainant (which would have attracted a higher maximum penalty), he occupied a privileged position in the household. He had unsupervised access to the house and to the complainant. He abused that trusted position by engaging in sexual conduct with the complainant.
The complainant was vulnerable both having regard to her age and the fact that the respondent was residing in her home. There was a very significant age disparity between the respondent, who was aged between 35 – 36 at the time, and the complainant, who was aged 14. Even if the respondent did not know the precise age of the complainant, the fact that he was significantly older than the complainant must have been obvious.
The offending was not a momentary aberration; the respondent engaged in sexual conduct with the complainant over an approximately four‑month period. During that period, he communicated with her regularly and encouraged her to spend time with him. The conduct encompassed sexual penetration of various types. This included penile penetration of the vagina, which, on the last occasion, caused the complainant to feel pain.
As noted earlier, the respondent sought to rely on the fact that the sentencing judge did not make a finding that the respondent knew that the complainant was aged 14 at the time of the offences. The only finding made by the sentencing judge in this regard was that the respondent knew that the complainant was attending school. It was submitted that if a finding had been made that the respondent knew at the time of the offences that the complainant was aged 14, this would have been a significant aggravating factor. The absence of such a finding was said to be relevant in assessing the seriousness of this offending.
It is not an element of the offences of which the respondent was convicted that he knew the age of the complainant. A mistaken belief as to the age of the complainant can be a defence, but only where the accused is no more than three years older than the complainant and has an honest and reasonable belief that the complainant was of or over the age of 16.[67] Clearly, the respondent could not avail himself of such a defence as he was much more than three years older than the complainant at the time of the offences. In any event, the defence case at the trial was to the effect that none of the sexual acts had occurred at all.
[67] See the Code, s 321(9).
When interviewed by the police, the respondent said that he had never known the age of the complainant. However, the respondent had heard a discussion between the complainant's mother and the mother's partner about some events 'a few years prior' and he had a recollection of the mother or the mother's partner saying that the complainant was 'then' aged about 14. The respondent added that he 'never really asked' about the complainant's age and her age was 'never brought up'.[68] In the pre‑sentence report, the respondent was reported as saying that he was aware that the complainant was at school at the time of the offences but thought that she was in the final year of school.[69] The implication was that he believed that the complainant was over the age of 16. Accordingly, the evidence of the respondent's state of mind regarding the age of the complainant is equivocal. This may well be the reason why the sentencing judge did not make a finding in this respect, one way or the other.
[68] Western Australian police record of interview ts, dated 28 September 2022, 29.
[69] Pre-sentence report, dated 17 May 2024, 2.
We would accept that if there had been a finding that the respondent knew that the complainant was 14 years old at the time of the offences and persisted in the offending notwithstanding that knowledge, that would have been an aggravating factor. However, the absence of such knowledge is not a mitigating factor, it is simply the absence of an aggravating factor. Clearly, it is incumbent on a mature adult man, as the respondent was, to ensure that the young person with whom he was engaging sexually is not under the age of 16 years. The sentencing judge correctly acknowledged this.[70]
[70] ts 364.
The respondent also refers to the fact that the sentencing judge made a finding that the complainant was a willing participant in the sexual conduct. The absence of 'consent' is not an element of the offences committed by the respondent. It is generally not meaningful to talk about children who are below the age of consent as being willing participants in sexual conduct. The cooperation or participation of a child in such conduct can never be based on a mature understanding of the nature and consequences of the activity. What may appear to be willingness may be the product of ignorance, confusion or misunderstanding as to the real nature or consequences of what is occurring. As the sentencing judge properly noted, the purpose of these provisions is the protection of children. It is the responsibility of adults not to engage in sexual activity with children who are under the age of consent.
Proved absence of factual consent in the case of a child victim, and, particularly, knowledge of the absence of consent can be an aggravating factor.[71] In the present case, as the sentencing judge noted, there was no need for force or coercion on the part of the respondent. Again, this might be better viewed as the absence of an aggravating factor rather than a mitigating factor. In any event, whether the willingness of the complainant is viewed as a mitigating factor or the absence of an aggravating factor, it makes only a small difference in the assessment of the seriousness of this offending. For the purposes of this case, we will take the view most favourable to the respondent, that is, that the willingness of the complainant to engage in the activity was a mitigating factor.
[71] Poulton v The State of Western Australia [2008] WASCA 97 [3] (McLure P).

The appellant suggested in written submissions that the offending was aggravated in that the acts of penile penetration did not involve use of a condom.[72] This was not a finding made by the sentencing judge and the evidence in this regard was not clear. The fact that count 5 involved the respondent throwing a condom at the complainant and encouraging her to engage in sexual activity would suggest that the respondent was prepared to use prophylactics. In the absence of a finding by the sentencing judge it is not appropriate to view the offending as aggravated in this respect.
[72] WAB 18.
There were, however, a number of other aggravating factors on the facts as found by the sentencing judge:[73]
1.The age disparity between the respondent (35 ‑ 36) and the complainant (14).
2.The length of time over which the offending continued (approximately 4 months).
3.That the offending was not a single aberration but constituted a persistent course of conduct.
4.That the respondent was in a trusted position as an invited guest in the house of the complainant's parents and that he abused that trust.
5.That counts 1 ‑ 7 occurred in the complainant's home, a place where she was entitled to be safe from predatory behaviour such as that engaged in by the respondent.
6.That the offending included several different types of sexual acts, including fellatio, and digital and penile penetration of the vagina.
[73] ts 362, 364.
General deterrence was a very important sentencing consideration, as it is in all cases involving sexual offending against children. Personal deterrence was also a relevant consideration. The respondent was convicted after trial and the pre‑sentence report indicated that he lacked insight and had failed to take responsibility for his offending.[74]
[74] ts 367; Pre-sentence report, dated 17 May 2024, 2.
There was nothing remarkable about the respondent's personal circumstances. He was a mature man at the time of the offending and the offences were not a momentary aberration. Whilst he had a good work record, he did not have the benefit of prior good character. In any event, personal circumstances are accorded less weight in respect of offences of this nature.[75]
[75] See VIM v The State of Western Australia [2005] WASCA 233; (2005) 31 WAR 1 [320]; The State of Western Australia v Porter [2008] WASCA 154 (Steytler P) [8]; HNU [64].
We now turn to consider the comparable cases relied on by the appellant and the respondent.
In MHS, the offender was convicted after trial of 16 counts of offending against two victims, his nieces aged 12 and 13 years. The offender was aged 23 or 24 years old at the time of the offending against the first victim and 28 years old at the time of the offending against the second victim. The offences consisted of one count of indecently dealing with the younger child and seven counts of sexual penetration, one count of attempted sexual penetration and seven counts of indecently dealing with the older child. The individual sentences for the sexual penetration counts ranged from 3 ‑ 5 years' imprisonment. The offender was sentenced to a total effective sentence of 9 years 2 months' imprisonment. An application for leave to appeal against the total effective sentence was refused and the appeal was dismissed.
There were a number of aggravating features in MHS that are not features of the present case. Specifically, MHS involved two victims, both victims were younger than the present complainant, the offender was a trusted member of the victims' family, the offender used coercion in the form of a promise to provide one of the victims with a mobile telephone if she acquiesced to the sexual penetration, and some of the conduct was degrading in nature. However, the age disparity was less in MHS than in the present case and the offender in MHS had better antecedents.
In Coutts, the offender pleaded guilty to eight counts of sexual penetration of a child over the age of 13 years and under the age of 16 years and one count of indecently dealing with a child over the age of 13 years and under the age of 16 years. There were two victims, a 15‑year‑old boy, who was the subject of two counts and a 14‑year‑old girl, who was the subject of the remaining counts. The offender was 29 years old at the time and suffered significant childhood trauma. The offending against the boy occurred during one incident. The offending against the girl occurred over a six‑month period and the offences were representative in nature. In both cases, the victims believed themselves to be in a relationship with the offender, who was aged 29 years old at the time. As regards the female victim, the offender was a family friend. The offending against the female victim occurred whilst the offender was on bail in respect of offences concerning the first victim. The individual sentences for the sexual penetration offences ranged from 2 years 6 months ‑ 4 years 6 months' imprisonment. The offender was sentenced to a total effective sentence of 10 years 6 months' imprisonment and appealed on the basis of breach of the totality principle. The appeal was allowed and the offender was resentenced to a total effective sentence of 8 years 6 months' imprisonment.
There are some aggravating features in Coutts that are not present in this case. In particular, Coutts involved two victims and the offending against the second victim was committed whilst the offender was on bail. However, the offender in Coutts derived substantial mitigation from his guilty pleas, his remorse and his history of childhood trauma. Further, the age disparity was less in Coutts than in the present case.
In Amedi, the offender pleaded guilty at a late stage to two counts of sexual penetration of a child. He was convicted after trial of a further four counts of sexual penetration of the same child. At the time of the offences the offender was 22 years old and the female victim was aged between 15 years and 10‑and‑a‑half months and 15 years and 11 months. The offender and the victim met in an online chat group and the victim told the offender that she was 17 years old. The sentencing judge found that the offender believed that the victim was 17 years old but was aware that she was still at school and that this and other things she told him should have raised 'alarm bells'. The offending occurred on two occasions about two weeks apart and the offender had exerted pressure on the victim by offering to pay her and threatening to distribute intimate images of her if she did not meet him. The offender did not use a condom. The offender was sentenced to individual terms of 2 years' imprisonment in respect of five of the offences and a term of 4 years' imprisonment for one of the offences which involved penile penetration of the victim's anus in circumstances where the victim did not consent. The offender was sentenced to a total effective sentence of 6 years' imprisonment. An application for leave to appeal against both the individual and aggregate sentences on the basis of implied error was refused and the appeal was dismissed.
The exertion of pressure on the victim, the factual absence of consent in respect of one of the penetration offences, and the failure to use a condom were aggravating factors in Amedi that are not features of the present case. However, the offender in Amedi pleaded guilty to two of the counts, had the benefit of youth and prior good character and believed that the victim was above the age of consent. In contrast, the respondent was convicted after trial, did not have the benefit of a finding that he believed that the complainant was over the age of 16, was not youthful and did not have the benefit of prior good character. Further, the respondent's offending involved a younger victim, continued over a longer period of time and involved six separate incidents. The age disparity was substantially less in Amedi than in the present case.
In WNO, the offender was convicted after trial of 12 sexual offences against his 14‑year‑old niece. The offender was 27 years old at the time of the offences. The offences occurred over a five‑day period when the victim's parents were overseas. Nine of the offences were indecent dealing offences and three were sexual penetrations by way of digital penetration of the vagina. There was some verbal and physical aggression. The individual sentences for the three sexual penetration offences were 3 years' imprisonment (though two of those sentences were reduced for totality reasons). The total effective sentence was 6 years 9 months' imprisonment. An application for leave to appeal against the total effective sentence was refused and the appeal was dismissed.
The use of aggression was an aggravating feature in WNO that is absent in the present case. However, the respondent's offending was significantly more serious in that it continued over a longer period, involved more counts of sexual penetration, involved a variety of acts of penetration, comprised six separate incidents and involved a greater age disparity. Further, the respondent's antecedents are less favourable than those of the offender in WNO.
In Tapper, the offender pleaded guilty on the morning of his trial to three counts of sexual penetration of a child. The child was 15 years old and the offender was 43 years old at the time of the offences. The offender was a serving police officer who became acquainted with the complainant on an online dating site. The complainant told the offender that she was 19 years old. Following a trial of issues, the sentencing judge found that the offender's state of mind was, at best, one of wilful blindness and that he took the risk that the complainant was under 16 years old. The offender collected the complainant from her school on two occasions and took her to his home where he penetrated her vagina with his penis. The offender was sentenced on the basis that he initiated the sexual activity, that he had no affection for the complainant and wanted only to have sex with her secretly and send her on her way. Individual sentences of 2 years' imprisonment were imposed on each count. All of the sentences were ordered to be served concurrently, resulting in a total effective sentence of 2 years' imprisonment. An appeal on the basis that the sentences were manifestly excessive as to type and length was dismissed.
The respondent's offending is considerably more serious than that in Tapper. The respondent committed more offences and abused a position of trust by offending against the daughter of a friend who had allowed him to reside with the family. The respondent was convicted after trial, unlike the offender in Tapper who pleaded guilty (albeit at a late stage). Further, the offender in Tapper had better personal circumstances than the respondent, including the absence of a prior criminal record, a degree of cooperation with the investigating police, no significant risk of reoffending and the fact that imprisonment would likely be more onerous as a former police officer.
In ZER, the State appealed against a total effective sentence of 5 years 6 months' imprisonment imposed on the respondent after trial for eight sexual offences committed by the offender against his 14‑year‑old foster daughter. The offences comprised seven counts of aggravated sexual penetration of a child and one count of aggravated indecent dealing with a child. The circumstance of aggravation in each case was that the child was under the care, supervision or authority of the offender. The offender was aged 45 ‑ 46 at the time of the offending. The offending occurred over approximately 12 months. The victim was vulnerable, both because she was a foster child and because she had previously been the victim of sexual abuse, a fact known to the offender. The offending involved a variety of acts, including cunnilingus, fellatio, digital penetration and penile/vaginal penetration. The offender had good antecedents, no prior criminal record and good prospects of rehabilitation. The appeal was allowed, and the total effective sentence increased to 7 years 9 months' imprisonment.
There were a number of aggravating factors in ZER that are not present in this case. In particular, the offending was aggravated by the relationship of care, supervision or authority, which increased the maximum penalty to 20 years' imprisonment. The offending also continued over a longer period of time and in circumstances where the offender knew the age of the victim and her particular vulnerability. However, the respondent in the present case committed more offences and had less favourable personal circumstances.
Making allowance for any differences, the cases referred to support a conclusion that both the individual sentences of 18 months' imprisonment for the sexual penetration offences and the total effective sentence of 3 years' immediate imprisonment are inconsistent with sentences imposed in comparable cases. In none of the cases was a sentence of less than 2 years' imprisonment imposed for an offence of sexual penetration of a child over the age of 13 years and under the age of 16 years. In those cases where such a sentence was imposed it was after a plea of guilty. The total effective sentence of 3 years' immediate imprisonment is lower than any of the cases referred to save for Tapper, which involved significantly fewer offences and an offender with more favourable antecedents.

In our view, having regard to the maximum penalty for the sexual penetration offences, the seriousness of those offences, the personal circumstances of the respondent and the guidance afforded by comparable cases, the sentence of 18 months' imprisonment imposed for each of those offences was unreasonable or plainly unjust. Those sentences fail to properly reflect the seriousness of the offending and the importance of general and personal deterrence. A significantly higher sentence for each of those offences should have been imposed. Furthermore, there should have been some adjustment to reflect the relative seriousness of those offences. Ground 1 has been made out.
Further, the seriousness of the offending as a whole, the aggravating factors, the personal circumstances of the appellant and the need to ensure that the aggregate sentence reflected the importance of general deterrence, required a significantly higher total effective sentence. The total effective sentence of 3 years' imprisonment breaches the totality principle in that it is not proportionate to the overall offending. It is unreasonable or plainly unjust. Ground 2 has also been made out.

Residual discretion

The main purpose of prosecution appeals against sentence is to lay down principles for the governance and guidance of courts in sentencing convicted persons.[76] This court has a discretion under s 31(4)(a) of the Act, known as the 'residual discretion', to not allow a prosecution appeal against a sentence imposed on a person convicted of a charge of an indictable offence, even if it thinks that the sentence is erroneously lenient. That discretion usually falls to be exercised in circumstances when the guidance that this court might otherwise provide to sentencing courts is limited, and a decision to allow a prosecution appeal will result in injustice to a convicted person who is required to respond to such an appeal. It is for the State to negative any reasons why the residual discretion of this court to intervene should be exercised.
[76] The State of Western Australia v Pereira [2023] WASCA 162 [43] citing Green v The Queen [2011] HCA 49; (2011) 244 CLR 462 [1].
The respondent submits that this court should exercise the residual discretion to dismiss the appeal. In this regard, the respondent solely relies on the conditions under which he has served his sentence of imprisonment to date.[77] The respondent submits that he has served 20 months of his sentence under onerous conditions, including extended periods of being confined to his cell. It was suggested that this equates to a much longer sentence and supports a conclusion that it would be unjust to increase his sentence.[78]
[77] Appeal ts 13 - 15.
[78] Appeal ts 20 - 21.
The appellant disputed the contention that the respondent had spent extended periods confined to his cell. The dispute was resolved by the production of an agreed statement of facts. The agreed facts are:[79]
1.In the period 30 December 2022 to 20 June 2023 the Respondent was in standard cell allocation (non‑protection). During this period, it was a reasonably regular occurrence for him to be confined to his unit outside of the usual hours between 6am and 6pm when cells are opened and before prisoners are returned to their cells in the evenings.
2.This confinement to his unit was a result of implementation of Adaptive routines. This means that he could move around the unit, but not within the wider prison. Whilst confined to his unit, the respondent had access to other prisoners within the unit, a phone, an outdoor yard within the unit and a kitchen area and shower area with communal toilets.
3.From 20 June 2023 to 3 August 2023 the Respondent was in protection (common to many alleged sex offenders) which meant that he was essentially confined to his unit and could only visit other areas of the prison (the oval / library etc) under escort.
4.From 3 August 2023 to 28 November 2023, the Respondent was back in standard cell allocation in which there were regular occasions when he was confined to his unit as a result of adaptive routines.
5.From 28 November 2023 until his transfer to Acacia [prison] in August 2024, the Respondent was in protection and hence confined to his wing, with access to the wider prison under escort.
6.The various units in which the Respondent was housed in Hakea [prison] during the relevant period comprised between 100 and 130 cells, depending on the unit, and each unit generally comprised of four wings.
7.There is a record of an incident at Hakea prison which occurred after the Respondent was sentenced, in which the Respondent found a prisoner hanging in an apparent attempted suicide and brought it to the attention of prison staff. We are advised that the respondent was assessed under the [At Risk Management System] procedure relating to traumatic incidents and prisoner mental health and a referral under that procedure was deemed not to be necessary.
[79] Agreed Terms of Incarceration of Respondent at Hakea Prison, filed 2 September 2024.
Those agreed facts do not support a conclusion that the respondent has been confined to his cell for extended periods. He has been regularly confined to his unit, either due to adaptive procedures (which are understood to be measures designed to deal with staff shortages) or because he was in protective custody. However, confinement to a unit allowed for access to other prisoners, a telephone, an outdoor yard within the unit and a kitchen area and shower area with communal toilets. It is not apparent that the conditions described were substantially more onerous than for other prisoners, either at Hakea prison or more generally.
In our view, the conditions under which the respondent has served his sentence to date do not justify an exercise of the residual discretion to dismiss the appeal. Significantly higher sentences should have been imposed. The appeal should be allowed in order to ensure the proper maintenance of sentencing standards.

Resentencing

The circumstances of the offending and the respondent's personal circumstances have been set out earlier in these reasons. It is unnecessary to repeat them.
The only additional information concerns the prison conditions under which the respondent has been serving his sentence to date, which have been referred to above. For the reasons that have already been canvassed, that is a factor that in the circumstances of this case can only justify a very modest reduction.
In exercising the sentencing discretion afresh, we are of the view that sentences of 2 years 9 months' immediate imprisonment on each of counts 1, 6, 8 and 11 and sentences of 3 years' immediate imprisonment on counts 2, 3, 9, 10 and 12 are appropriate. Those sentences reflect the relative seriousness of those offences of sexual penetration. They also reflect the maximum penalty, the mitigating and aggravating features and the sentences imposed in comparable cases. We would not vary the sentences imposed for the other offences.
We consider that a total effective sentence of 6 years' imprisonment is appropriate to reflect the overall criminality of the offending. Such a sentence acknowledges the seriousness of the offending, the importance of personal and general deterrence and the personal circumstances of the respondent, bearing in mind that matters personal to an offender are usually accorded less weight in respect of offences of this nature. We would achieve that sentence by ordering that the sentences on counts 3 and 9 be served cumulatively and that the other sentences be served concurrently. The total effective sentence should be backdated to commence on 5 December 2022. An order that the respondent is eligible for parole should be made.

Orders

The orders are:
1.The appeal is allowed.
2.The sentences imposed on counts 1, 2, 3, 6, 8, 9, 10, 11 and 12 are set aside and in lieu thereof sentences of 2 years 9 months' immediate imprisonment are substituted on counts 1, 6, 8 and 11 and sentences of 3 years' immediate imprisonment are imposed on counts 2, 3, 9, 10 and 12.
3.The sentences on counts 3 and 9 are to be served cumulatively and the sentences on all other counts are to be served concurrently.
4.The total effective sentence of 6 years' imprisonment is deemed to have taken effect on 5 December 2022.
5.The respondent is eligible for parole.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
MO
Research Associate to the Honourable Justice Hall
17 SEPTEMBER 2024