The State of Western Australia v Visser - [2025] WASCA 90

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT :   THE COURT OF APPEAL (WA)
CITATION:   THE STATE OF WESTERN AUSTRALIA -v- VISSER [2025] WASCA 90
CORAM:   QUINLAN CJ
BUSS P
MAZZA JA

HEARD:   19 DECEMBER 2024
DELIVERED          :   19 JUNE 2025
FILE NO/S:   CACR 15 of 2024
BETWEEN:   THE STATE OF WESTERN AUSTRALIA
Appellant

AND

NICHOLAS VISSER
Respondent

ON APPEAL FROM:
Jurisdiction              :   DISTRICT COURT OF WESTERN AUSTRALIA
Coram:   IND 1261 of 2022
File Number            :   GILLAN DCJ

Catchwords:

Criminal law - State appeal against sentence - Child sex offences - Respondent convicted after trial of 14 counts of indecent dealing and sexual penetration of a child - Where victim was under care, supervision or authority of respondent - Where respondent was teacher of victim at her high school - Where offending occurred over a span of nearly nine months - Where respondent continuously communicated with victim via Snapchat - Where offending occurred on school grounds during school hours - Whether individual sentence of 3 years' immediate imprisonment for sexual penetration of a child of or over the age of 13 years and under the age of 16 years in circumstance of aggravation was manifestly inadequate - Whether total effective sentence of 4 years 6 months' immediate imprisonment was contrary to first limb of totality principle

Legislation:

Criminal Code (WA), s 10M, s 321(2), s 321(4), s 321(7), s 321(8), s 322(2), s 322(4)

Result:

Appeal allowed
Respondent resentenced

Category: D

Representation:

Counsel:

Appellant	:	J Whalley SC
Respondent	:	F P Merenda

Solicitors:

Appellant	:	Director of Public Prosecutions (WA)
Respondent	:	The Defence Lawyers

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

EKO v The State of Western Australia [2020] WASCA 88
Poulton v The State of Western Australia [2008] WASCA 97
The State of Western Australia v Hussian [2020] WASCA 186
The State of Western Australia v PJW [2015] WASCA 113
The State of Western Australia v THN [2023] WASCA 18
UGN v The State of Western Australia [2021] WASCA 10
Visser v The State of Western Australia [2025] WASCA 74

JUDGMENT OF THE COURT:

This is a State appeal against sentence.
The respondent was convicted, after a trial in the District Court before Gillan DCJ and a jury, of 14 offences. The offences comprised two counts of using electronic communication with intent to expose a person under 16 years to indecent matter, contrary to s 204B(2)(a)(ii) of the Criminal Code (WA) (the Code) (counts 1 and 2); four counts of aggravated indecent dealing with a child of or over the age of 13 years and under the age of 16 years, contrary to s 321(4) and s 321(8)(b) of the Code (counts 3, 4, 5 and 7); one count of aggravated sexual penetration of a child of or over the age of 13 years and under the age of 16 years, contrary to s 321(2) and s 321(7)(b) of the Code (count 6); one count of sexual penetration of a child of or over the age of 16 years under his care, supervision or authority, contrary to s 322(2) of the Code (count 14); and six counts of indecent dealing with a child of or over the age of 16 years under his care, supervision or authority, contrary to s 322(4) of the Code (counts 8 ‑ 13).[1]
At all material times, the respondent was a teacher at a suburban high school. The victim was a student at the school. Between December 2019 and August 2020, the respondent sent indecent communications to, and then repeatedly indecently dealt with, the victim. On two occasions, the respondent also sexually penetrated her. The victim was, at the time of the offending, 15 or 16 years of age. The respondent was 28 years of age.
On 5 February 2024, the respondent was sentenced to a total effective sentence of 4 years 6 months' immediate imprisonment. He was made eligible for parole, and the sentences were ordered to commence on 5 February 2024. In respect of count 6, the respondent was sentenced to 3 years' immediate imprisonment (the head sentence).
The following table sets out the details of the individual offences and the sentences that were imposed:
[1] On 16 May 2025, the respondent's appeal against these convictions was dismissed: Visser v The State of Western Australia [2025] WASCA 74.

Count:	Charge:	Offence:	Maximum penalty:	Sentence of imprisonment imposed:
Snapchat messages in December 2019 school holidays
1	Using electronic communication with intent to expose a person under the age of 16 years to indecent matter Code, s 204B(2)(a)(ii)	The respondent sent the victim several photos of himself, including a photo exposing his naked penis.	5 years' imprisonment	21 months (concurrent)
Snapchat messages in January 2020 school holidays
2	Using electronic communication with intent to expose a person under the age of 16 years to indecent matter Code, s 204B(2)(a)(ii)	The respondent sent the victim a video of himself masturbating.	5 years' imprisonment	2 years (concurrent)
The bus shed bike testing incident
3	Aggravated indecent dealing with a child of or over the age of 13 years and under the age of 16 years Code, s 321(4), s 321(8)(b)	The respondent touched and squeezed the victim's buttocks over her clothing.	10 years' imprisonment	6 months, reduced from 12 months for totality (cumulative)
In the storeroom of the small gym
4	Aggravated indecent dealing with a child of or over the age of 13 years and under the age of 16 years Code, s 321(4), s 321(8)(b)	The respondent touched the victim's breasts under her clothing.	10 years' imprisonment	12 months (concurrent)
5	Aggravated indecent dealing with a child of or over the age of 13 years and under the age of 16 years Code, s 321(4), s 321(8)(b)	The respondent touched and squeezed the victim's buttocks over and under her clothing.	10 years' imprisonment	12 months (concurrent)
6	Aggravated sexual penetration of a child of or over the age of 13 years and under the age of 16 years Code, s 321(2), s 321(7)(b)	The respondent put his hand down the victim's shorts and under her underwear, penetrating her vagina and rubbing her clitoris with his fingers.	20 years' imprisonment	3 years (head sentence)
7	Aggravated indecent dealing with a child of or over the age of 13 years and under the age of 16 years Code, s 321(4), s 321(8)(b)	The respondent took the victim's hand and placed it under his clothing on his penis, forcing her to masturbate him, while his other hand was on the victim's buttocks.	10 years' imprisonment	2 years (concurrent)
Storing life jackets incident
8	Indecent dealing with a child of or over the age of 16 years under the offender's care, supervision or authority Code, s 322(4)	The respondent touched and squeezed the victim's buttocks over her clothing.	5 years' imprisonment) (Code, s 10M(3))	12 months (cumulative)
The day after the victim's 16^th birthday
9	Indecent dealing with a child of or over the age of 16 years under the offender's care, supervision or authority Code, s 322(4)	The respondent placed the victim's hand on his penis, over and under his clothing.	5 years' imprisonment	2 years (concurrent)
The bouncy ball incident
10	Indecent dealing with a child of or over the age of 16 years under the offender's care, supervision or authority Code, s 322(4)	The respondent took the victim's hand and placed it under his shorts and underwear, causing her to touch his penis.	5 years' imprisonment	2 years (concurrent)
The last occasion of offending
11	Indecent dealing with a child of or over the age of 16 years under the offender's care, supervision or authority Code, s 322(4)	The respondent kissed the victim on her mouth and put his tongue in her mouth.	5 years' imprisonment	9 months (concurrent)
12	Indecent dealing with a child of or over the age of 16 years under the offender's care, supervision or authority Code, s 322(4)	The respondent touched the victim's breasts under her clothing.	5 years' imprisonment	16 months (concurrent)
13	Indecent dealing with a child of or over the age of 16 years under the offender's care, supervision or authority Code, s 322(4)	The respondent touched and squeezed the victim's buttocks under her clothing.	5 years' imprisonment	16 months (concurrent)
14	Sexual penetration of a child of or over the age of 16 years under the offender's care, supervision or authority Code, s 322(2)	The respondent put his hand under the victim's clothing and underwear, and touched her clitoris before digitally penetrating her vagina.	10 years' imprisonment	3 years (concurrent)
Total effective sentence:		4 years 6 months' imprisonment

The State appeals to this court on two grounds. Ground 1 alleges that the individual sentence imposed in respect of count 6 was manifestly inadequate. Ground 2 alleges that the total effective sentence infringed the first limb of the totality principle.
For the reasons that follow, we would grant leave to appeal on both grounds, allow the appeal, and resentence the respondent.

The facts

For the purposes of this appeal, there was no dispute as to the facts of the respondent's offending as found by the sentencing judge.[2]
[2] ts 388 - 390.
At all material times, the respondent was a physical education and health teacher at a suburban high school. The respondent was then 28 years of age, while the victim was 15 and, later, 16 years of age. The respondent had taught the victim in 2017, when she was in year 7; and in 2019, when she was in year 9.
Towards the end of November 2019, the respondent sent the victim a friend request on the social media application, Snapchat. The respondent knew, at the time, that adding a student as a 'friend' on any form of social media was contrary to the code of conduct that applied to the respondent, as a teacher.
The victim accepted the respondent's friend request. She informed two of her close friends that she had done this. Eventually, the school principal was informed of what had occurred. The respondent was spoken to by the principal about the friend request. He told the principal that the sending of the friend request had been inadvertent, and confirmed that he had since 'unfriended' the victim and had apologised to her. He also said that the victim had told the respondent that she was 'okay'.
In what the sentencing judge described as a 'sliding door moment', the respondent, instead of ceasing all inappropriate conduct with the victim, then escalated it. By December 2019, the respondent again 'friended' the victim on Snapchat, and, during the summer school holidays, sent her a series of messages and images. Those images included a photograph exposing his naked penis (count 1).
In January 2020, before the new school year commenced, the respondent sent the victim more images and messages via Snapchat, including a video of himself masturbating (count 2).
The victim returned to school in early 2020. She was now in year 10. At this time, the respondent was her outdoor education teacher. It was during the 2020 school year that the remainder of the counts of offending on the indictment occurred.
In late March 2020, shortly before the end of Term 1, the school received a number of new mountain bikes for outdoor education classes. The bicycles needed to be assembled. The respondent went to the victim's classroom and asked the classroom teacher to release the victim and another student to assist him by testing the bicycles. The testing took place in the school's bicycle shed. While the other student was testing a bike, the respondent hugged the victim front‑on. A little while later, after the respondent sent the other student back to class and had locked the shed, he squeezed the victim's buttocks over her clothes (count 3).
The respondent continued exchanging Snapchat messages with the victim. Sometime during Term 2, the respondent contacted the victim and asked her to come, after school, to the storeroom of what was known as the 'small gym'. There, he hugged her, and touched her underneath her clothing. He undid her bra, and touched her breasts underneath her shirt (count 4). He then squeezed her buttocks, both over and then under her clothing (count 5). The respondent then put his hand down her shorts and underwear, touched her vagina, and rubbed her clitoris (count 6). Finally, the respondent took her hand, put it under his clothing and onto his penis, and made her masturbate him by moving her hand up and down (count 7).
Throughout Term 2 of the 2020 school year, there were a number of other occasions when, at the respondent's instigation, he engaged in similar behaviour with the victim of the kind that was engaged in at the storeroom of the 'small gym'.
On another specific occasion in Term 2, when the victim was either 15 or 16 years of age, the respondent asked her to assist him with putting away some life jackets. The victim did so. As the respondent and the victim left the storage shed, the respondent took the opportunity to squeeze her buttocks over her clothing (count 8).
When the victim turned 16 years old in June 2020, the respondent sent her a Snapchat message telling her that he wanted to give her a birthday gift; an offer that she declined. On the morning after her birthday, the respondent messaged the victim before school and asked her to come to the storeroom, as he had another idea for a gift to give her. At about 8.00 am that day, the respondent met the victim in the storeroom, where he gave her a 'birthday hug'; grabbed her hand and put it on his penis, over his clothing; put her hand under his clothing, so that she was touching his penis; and then held her hand there (count 9). He told the victim that this was her 'birthday gift'.
On a day in Term 3, the victim and a friend were using two bouncy balls to play handball during their lunch break. The respondent confiscated the balls and told the victim that she could get them back from his office after school. When the victim came to the respondent's office, they were alone. This was because the other outdoor education teachers who shared the office were in a meeting. The respondent put one ball in a drawer. He put the other ball down his shorts, and told the victim that she would have to reach into his shorts to get the ball back. The victim refused, and said that the respondent could keep the balls. The respondent then took her hand and put it under his shorts, into his underwear (count 10). He tried to force her hand onto his penis, but the victim tried to move her hand away; grabbing the ball before pulling her hand out of his shorts. The sentencing judge found that any contact the victim had with the respondent's penis on this occasion was, at most, 'fleeting'.[3]
[3] ts 390.
The last occasion of sexual offending against the victim occurred in the first few weeks of Term 3, once again in the storeroom of the 'small gym'. On this occasion, the respondent hugged the victim front‑on, and then kissed her, putting his tongue into her mouth (count 11). The respondent then undid the victim's bra, and touched her breasts (count 12). He then touched and squeezed her buttocks under her clothing (count 13). Finally, the respondent put his hand down the victim's shorts, touched her clitoris, and inserted one of his fingers into her vagina (count 14).

Other conduct engaged in by the respondent

Throughout the period of offending, the respondent and the victim continued to exchange Snapchat messages, which included inappropriate discussions about the respondent's personal life. He did so using various Snapchat accounts under different usernames.[4]
[4] ts 390.
The respondent also engaged in other inappropriate conduct in respect of the victim. There was an occasion on which he embarrassed her during an outdoor education class by making her tie up his shoelaces, fetch him a chair, and do push‑ups; all in front of her classmates. The respondent also threatened her with detention. The effect of this behaviour left the victim confused and unsure how to extract herself from the situation she was in.[5]
[5] ts 391.
In late August 2020, after the respondent was suspended from his duties, he contacted the victim and told her to 'deny, deny, deny' that she had engaged in any inappropriate conduct with him. Initially, the victim made no such disclosure to authorities, and, as she had been urged by the respondent, denied her involvement.

The respondent's personal circumstances

The respondent was 32 years of age at the time he was sentenced.
The respondent was born and raised in the Perth area. He grew up in a supportive family environment.
The respondent was educated at a private school, and was of average or above average intelligence. Sport was his passion, both at school and in the years that followed. He obtained a Bachelor's degree in exercise and sports science, and then completed a graduate diploma in teaching.
The respondent appeared to be in good physical health. He had no history of alcohol or drug abuse. He did encounter some mental health issues in 2017 and 2018, relating to his mother's death some five years earlier.
The sentencing judge was provided with a psychological report prepared by Dr Phil Watts, dated 30 January 2024. Dr Watts found no evidence of any personality disorder or dysfunction, nor any evidence of major mental illness, cognitive impairment, or 'other offender‑related disturbance'. Dr Watts noted that the respondent appeared to be a person who was normally 'high‑functioning' and 'capable'. Since being charged with the offences, the respondent has developed a major depressive disorder, and was, at the time of the writing of the report, being medicated for depression.
The respondent is married. His wife remains supportive of him.
The respondent has no criminal history. Character references, which were provided to the sentencing judge, spoke well of him.
The respondent continues to deny his guilt in respect of his offending.

The sentencing remarks

As the grounds of appeal do not allege any express error, it is unnecessary to recount the sentencing remarks in great detail.
The sentencing judge identified the following aggravating factors:
(1)The age difference between the respondent and the victim, the respondent being approximately 13 years older than the victim.[6]
[6] ts 391.
(2)The 'profound breach of trust' involved in the offending.[7] Her Honour observed that the victim 'had a right to be safe from this behaviour from a school teacher while she was on holidays and then at school on the school grounds'.[8] The sentencing judge also observed that, by reason of the respondent's training as a school teacher, he was 'well aware of the wrongfulness' of his actions.[9]
[7] ts 391.
[8] ts 391.
[9] ts 391.
(3)The offending occurred over a prolonged period of 'about eight and a half months'.
(4)The detrimental impact the offending has had on the victim. Her Honour quoted from a victim impact statement in which the victim described her last few years of schooling as 'an absolute nightmare' that she would live with for the rest of her life. The victim expressed how emotionally damaged she felt, and stated that she was 'disheartened and frustrated'.[10]
[10] ts 391.
The sentencing judge found that the respondent had 'tested the water' by making the initial friend request,[11] and he had deliberately used Snapchat (which 'instantly and usually irretrievably' deletes messages, photos, and videos once viewed by the recipient) as a 'protective mechanism'.[12] Her Honour observed that, in respect of the 'touching' offences, all but two involved skin‑on‑skin contact. The sentencing judge remarked that the respondent's characterisation of what occurred in the storeroom of the small gym as a purported 'birthday gift' for the victim showed 'how wrong‑thinking' the respondent was. Her Honour noted that the respondent had instructed the victim to deny everything that had happened between them when the matter was first investigated by the Department of Education in August 2020.
[11] ts 393.
[12] ts 393.

Her Honour also had regard to a number of mitigating factors, including the respondent's prior good character and antecedents, and his ongoing support within the community.[13] Her Honour had regard to the totality principle, and expressed the view that a total effective sentence of 4 years 6 months' immediate imprisonment reflected a proper relationship to the respondent's overall criminality.
[13] ts 394.

The State's submissions

Senior counsel for the State submitted that both the total effective sentence and the individual sentence on count 6 failed to properly reflect the seriousness of the respondent's offending and the need to provide a proper level of general deterrence.
Senior counsel for the State particularly emphasised that the respondent's offending amounted to a persistent, prolonged, and serious abuse of the trust that exists between teacher and pupil. Senior counsel also emphasised the significant negative impact that the offending has had on the victim, who was highly vulnerable. Senior counsel for the State also contended that the respondent had 'trapped [the victim] in a situation that [he] had engineered entirely for his own sexual gratification'.[14]
[14] Appeal ts 3.
Senior counsel also emphasised that the respondent had been convicted after trial, and therefore did not have the mitigation that he would have received under s 9AA of the Sentencing Act 1995 (WA), had he entered pleas of guilty. It was also submitted that the respondent was without remorse for, or insight into, what he had done.
Senior counsel for the State submitted that the total effective sentence of 4 years 6 months' immediate imprisonment failed to adequately reflect the seriousness of the offending, considered as a whole. It was also submitted that the sentence of 3 years' immediate imprisonment for count 6, imposed after trial, was manifestly inadequate having regard to the maximum penalty of 20 years' imprisonment and the need for general deterrence. However, even if the State did not successfully make out its claim of manifest inadequacy in respect of count 6, it was submitted that the total effective sentence remained erroneously low.

The respondent's submissions

Counsel for the respondent did not deny the seriousness of the offending and accepted that, in this particular context, the total effective sentence was low. However, he submitted that implied error had not been made out in relation to grounds 1 or 2. He submitted that the total effective sentence, and the individual sentence on count 6, each reflected a sound exercise of the sentencing discretion.[15]
[15] Appeal ts 4.
Counsel for the respondent referred to several of the cases cited by the State in support of grounds 1 and 2, and submitted that they did not support the grounds of appeal.
Counsel for the respondent accepted that, in the event that either of the grounds of appeal were made out, this would not be a case in which the residual discretion should operate.

General legal principles

The general principles applicable to State appeals against sentence that allege implied error are well established and were summarised by this court in the The State of Western Australia v Hussian.[16] They do not need to be repeated here.
[16] The State of Western Australia v Hussian [2020] WASCA 186 [88] ‑ [103].
It is also well established that the primary sentencing considerations for sexual offences against children are appropriate punishment of the offender and personal and general deterrence, having regard to the need to protect vulnerable children. Matters personal to the offender are ordinarily of less mitigatory weight than might otherwise be the case, but they are not irrelevant. The fact that an offender is otherwise of good character carries little weight because the offences are of a kind that, until revealed, generally do not impact on other people or upon the perception of the offender.[17]
[17] The State of Western Australia v PJW [2015] WASCA 113 [34] ‑ [35].
As this court recognised in EKO v The State of Western Australia,[18] teachers occupy a position of trust and authority with respect to children. This position renders children vulnerable to the teacher's influence if the teacher abuses his or her position by gaining the particular trust of a child with a view to engaging in sexual relations with that child. The duty of the court is to protect children from teachers who may abuse, or contemplate abusing, their positions of trust and authority in relation to children in their care for whom they are responsible.
[18] EKO v The State of Western Australia [2020] WASCA 88 [56]. See also Poulton v The State of Western Australia [2008] WASCA 97 [4].

Disposition

The facts of the offending, the other conduct engaged by the respondent, and the aggravating circumstances identified by the sentencing judge, along with her observations summarised at [35] above, show that the respondent's offending was very serious and involved a high degree of overall criminality.
The respondent abused his position as the victim's outdoor education teacher, and the resulting power imbalance between them, to sexually exploit her on multiple occasions over a period of almost nine months. It is clear that he was sexually attracted to her and pursued her without any apparent regard for her welfare. He used Snapchat to communicate with her in a manner that he believed would not be traced.
Even when his initial contact with the victim via Snapchat was revealed, despite his acknowledgement of the wrongfulness of this behaviour towards the victim, he continued to contact her. He sent her indecent material to groom her, following which he indecently dealt with the victim and later sexually penetrated her.
The offending was brazen, with counts 3 ‑ 14 being committed on school grounds and, on some occasions, during schooltime. The respondent contrived situations in which he and the victim could be by themselves. The incidents of offending on the victim's birthday, and those in connection with 'the bouncy ball incident', show the lengths he was willing to go to in order to sexually abuse the victim. When the offending first came to light and an enquiry commenced, the respondent contacted the victim and, in effect, told her to lie; which she initially did.
Not surprisingly, the offending has had a very adverse psychological impact on the victim, who was highly vulnerable. In her victim impact statement, she stated that the respondent's conduct made her last few years of schooling an 'absolute nightmare', and that she remains affected by the respondent's behaviour to this day.
In truth, there was only modest mitigation available to the respondent. He did not have the mitigation of youth. Nor did he plead guilty. He was brought up in a supportive family environment and is intelligent. He knew that what he was doing was wrong. The fact that he is a man of prior good character is, for the reasons explained at [45] above, of limited weight. The respondent continues to deny his guilt and is without remorse, but it appears that his risk of reoffending is low and he will be supported in the community upon his release from prison.
There is no tariff in relation to sentences for offences of the kind committed by the respondent, due to the broad range of circumstances in which such offences are committed and the varying personal circumstances of each offender.
The State submitted that the individual and total effective sentences imposed in EKO, The State of Western Australia v THN,[19] and UGN v The State of Western Australia,[20] tended to demonstrate implied error in the length of the sentence imposed for count 6 and in the total effective sentence.
[19] The State of Western Australia v THN [2023] WASCA 18.
[20] UGN v The State of Western Australia [2021] WASCA 10.
Counsel for the respondent submitted that these cases do not, in fact, support either ground of appeal.
There is little to be gained from a detailed analysis of the cases that were cited. This is because the charges, the facts and circumstances of the offending and those personal to the offenders, and the different pleas that were entered by the various offenders at different stages, make any meaningful comparison with the present case problematic. The absence of any meaningful comparable cases does not mean that this court is unable to conclude that the individual sentence on count 6, or the total effective sentence, are infected by implied error. In the end, what is most important in determining the existence of implied error are the particular facts and circumstances of the case at hand having regard to all relevant sentencing factors.
In our opinion, having regard to all of the relevant facts and circumstances of this case and all relevant sentencing factors, the individual sentence of 3 years' immediate imprisonment on count 6 was manifestly inadequate; and the total effective sentence of 4 years 6 months' immediate imprisonment infringed the first limb of the totality principle, because it was not commensurate with the overall seriousness of the respondent's offending.
It is important to note that count 6 carried a maximum penalty of 20 years' imprisonment.[21] The circumstances in which it was committed are set out at [16] above. In the course of this offending, the respondent put his hand down the victim's underwear and then touched her vagina and rubbed her clitoris. There was, as we have said, only limited mitigation for the respondent's offending. The sentence imposed of 3 years' immediate imprisonment is the kind of sentence that might have been imposed had the respondent had the advantage of an early plea of guilty and genuine remorse. To our minds, it is manifestly inadequate having regard to all relevant sentencing considerations, particularly the sentencing objectives of proper punishment, general deterrence and the need to protect vulnerable children.
The total effective sentence of 4 years 6 months' immediate imprisonment fails to have regard to the seriousness of what the respondent did, its repetition and persistence, and the respondent's abuse of his position of authority as the victim's teacher. It also fails to properly reflect the impact of the offending on the victim. It appears from the sentencing remarks that her Honour regarded the respondent's prospects of rehabilitation as good and it may be that this, together with the respondent's favourable antecedents, is what led to the erroneously lenient sentences. Nonetheless, in accordance with the principles referred to above at [45] and [46], those factors could not, having regard to the very serious nature of the offending, justify the sentences that were ultimately imposed. The total effective sentence was not merely lenient. It infringed the first limb of the totality principle and was therefore erroneous.
Both grounds of appeal have been made out.

The residual discretion

As mentioned, counsel for the respondent did not submit that the residual discretion under s 31(4) of the Criminal Appeals Act 2004 (WA) should be exercised in this case. Of course, there is no onus on the respondent in this respect. However, there is no basis for invoking the discretion. Both the individual sentence on count 6 and the total effective sentence were substantially less than the sentences that should have been imposed on a proper exercise of the sentencing discretion. Appealable error has been clearly demonstrated and this court's intervention is necessary to ensure the preservation of proper sentencing standards for offences of the kind committed by the respondent. We would therefore grant leave to appeal on both grounds, allow the appeal, and resentence the respondent according to law.
[21] Code, s 321(7)(b).

Resentencing

This court has all the materials necessary to resentence the respondent.
We will not repeat what has already been said about the maximum penalties, the circumstances of the offending, the respondent's personal circumstances and the limited mitigation available to him.
The individual sentences imposed by her Honour in respect of counts 1 ‑ 5 and 7 ‑ 14 have not been challenged and should stand.
In respect of count 6, we would impose a sentence of 4 years 6 months' immediate imprisonment. We would order that the sentences imposed on counts 3 and 7 be served cumulatively upon each other and cumulatively upon the new sentence on count 6. We would order that the other sentences be served concurrently with the new sentence on count 6. In our opinion, a total effective sentence of 7 years' imprisonment is an appropriate reflection of the respondent's overall offending having regard to all the circumstances of the case including the mitigating factors.
The respondent should remain eligible for parole. The sentences are taken to have taken effect on 5 February 2024.

The Reportable Offender (Community Protection Order) made by the sentencing judge stands.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
ST
Associate to the Honourable Justice Mazza
19 JUNE 2025