The State of Western Australia v Zer - [2024] WASCA 84

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT :   THE COURT OF APPEAL (WA)
CITATION:   THE STATE OF WESTERN AUSTRALIA -v- ZER [2024] WASCA 84
CORAM:   MAZZA JA
HALL JA
TOTTLE J

HEARD:   6 JUNE 2024
DELIVERED          :   16 JULY 2024
FILE NO/S:   CACR 88 of 2023
BETWEEN:   THE STATE OF WESTERN AUSTRALIA
Appellant
AND
ZER
Respondent

ON APPEAL FROM:
Jurisdiction              :   DISTRICT COURT OF WESTERN AUSTRALIA
Coram:   BOWDEN DCJ
File Number            :   IND 2283 of 2021

Catchwords:

Criminal law - State appeal against sentence - Child sex offences - Offences committed by foster father against foster child over 12‑month period - Totality principle - Whether total effective sentence breached first limb of totality principle

Legislation:

Criminal Appeals Act 2004 (WA), s 24(1)(a)
Criminal Code (WA), s 321(2), s 321(4), s 321(7)(b), s 321(8)(b)

Result:

Appeal allowed
Respondent resentenced

Category: B

Representation:

Counsel:

Appellant	:	L M Fox SC
Respondent	:	R Sleeth

Solicitors:

Appellant	:	Director of Public Prosecutions (WA)
Respondent	:	Gray & Co Lawyers

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

Coutts v The State of Western Australia [2023] WASCA 38
Indich v The State of Western Australia [2019] WASCA 13
JDF v The State of Western Australia [2016] WASCA 221
Kabambi v The State of Western Australia [2019] WASCA 44
LJH v The State of Western Australia [2016] WASCA 155; (2016) 261 A Crim R 355
OTR v The State of Western Australia [No 2] [2022] WASCA 123
The State of Western Australia v HNU [2023] WASCA 6
The State of Western Australia v Pereira [2023] WASCA 162
UGN v The State of Western Australia [2021] WASCA 10
WNO v The State of Western Australia [2021] WASCA 141

JUDGMENT OF THE COURT:

This is a State appeal against sentence.
From 2012 to 2013, the respondent and his wife were the foster parents of a 14‑year‑old girl. The girl had been placed with them after being sexually abused in another home, a fact known to the respondent. Over a period of about 12 months, the respondent committed eight sexual offences against the girl, including seven offences of aggravated sexual penetration and one offence of aggravated indecent dealing. The offences occurred on seven separate occasions and included acts of cunnilingus, fellatio, digital penetration of the vagina, and penile/vaginal penetration.
The offences did not come to light until some eight years later, when the victim reported the matter to the police. The respondent denied the offences and maintained his innocence. He was convicted of the eight offences after trial (and acquitted of a number of other charges). He was sentenced to a total effective sentence of 5 years 6 months' imprisonment. An order was made that he be eligible for parole.
There is one ground of appeal. It is that the total effective sentence infringed the first limb of the totality principle, in that it was disproportionate to the overall criminality of the offending. The State refers to the maximum statutory penalty for the offences, the serious nature and circumstances of the offences, the particular vulnerability of the victim, the need for the sentence to adequately reflect general deterrence and appropriate punishment, sentences imposed in broadly comparable cases, and the personal circumstances of the respondent.
Leave to appeal was granted by Buss P on 1 September 2023.
For the reasons that follow, the ground of appeal has been made out. Given the nature and circumstances of the offending, in particular the fact that the victim was the respondent's foster child and was especially vulnerable because she had suffered previous sexual abuse, general deterrence and appropriate punishment were important sentencing objectives. The total sentence imposed was not proportionate to the overall criminality. It was plainly unreasonable or unjust.
There are no grounds for exercising the residual discretion to dismiss the appeal. Error has clearly been established, and 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. The respondent's good prospects of rehabilitation do not justify an exercise of the residual discretion to dismiss the appeal.
The appeal should be allowed, and the respondent resentenced to a total effective sentence of 7 years 9 months' immediate imprisonment, with eligibility for parole.

The facts

In 2012 and 2013, the respondent, his wife and two children were residing in a regional town. The respondent and his wife were approved foster carers. Between April 2012 and August 2013, a girl, who will be referred to in these reasons as D, was placed in foster care with the respondent and his wife and came to live in their family home. D's sister was also in the same foster care arrangement. At the time, D was aged between 13 and 15 years, her date of birth being 27 July 1998.[1]
[1] ts 88 - 89.
D occupied her own bedroom at the house. The first incident of sexual offending occurred on an unknown date between 31 March 2012 and 14 August 2013. On this occasion, the respondent's wife was not at home and D was in her bedroom at the back of the house. D and the respondent engaged in an exchange of text messages. The respondent told D, by text, that he wanted her to come to his bedroom.[2]
[2] ts 89.
When D went to the respondent's bedroom, he locked the door behind her, placed her on the bed and took off her pyjama bottoms. He also removed the underpants she was wearing. He started kissing her body and lifted up her pyjama top and kissed her stomach. He then started licking her vagina. That act of cunnilingus was the subject of count 1, an offence of sexually penetrating a child of or over the age of 13 years and under the age of 16 years who was under the respondent's care, supervision or authority, contrary to s 321(2) of the Criminal Code (WA) (the Code).[3]
[3] ts 89, 528.
The respondent then took off his pants and penetrated D's vagina with his penis. That act constituted count 2, an offence of sexual penetration of a child of or over the age of 13 years and under the age of 16 years who was under the respondent's care, supervision or authority, contrary to s 321(2) of the Code.[4]
[4] ts 89, 528.
On another unknown date between 31 March 2012 and 14 August 2013, the respondent took D with him when he drove his car to pick up D's sister from Army Cadets. While driving the vehicle, the respondent told D to suck his penis, and D did so. That act constituted count 3, an offence of sexual penetration of a child of or over the age of 13 years and under the age of 16 years who was under the respondent's care, supervision or authority, contrary to s 321(2) of the Code.[5]
[5] ts 89 - 90, 528.
On another unknown date between 31 March 2012 and 14 August 2013, the respondent and D were in the same car, which was parked at nighttime near a body of water. The respondent told D to 'do it', meaning to suck his penis. D did as she was told. That act constituted count 4, an offence of aggravated sexual penetration of a child of or over the age of 13 years and under the age of 16 years who was under the respondent's care, supervision or authority, contrary to s 321(2) of the Code.[6]
[6] ts 89 - 90, 528.
On another unknown date between 31 March 2012 and 14 August 2013, the respondent was driving his wife's smaller car and D was in the car with him. The respondent told D to suck his penis, which she did. That act constituted count 5, an offence of aggravated sexual penetration of a child of or over the age of 13 years and under the age of 16 years who was under the respondent's care, supervision or authority, contrary to s 321(2) of the Code.[7]
[7] ts 90, 528.
The respondent was acquitted of counts 6 ‑ 8, 10 and 12 ‑ 14. It is unnecessary to refer to the allegations in respect of those counts.
On another unknown date between 31 March 2012 and 14 August 2013, D was in a shed at the family property with the respondent. On this occasion, D's pants were taken down, and the respondent put his fingers inside her vagina. That act constituted count 9, an offence of aggravated sexual penetration of a child of or over the age of 13 years and under the age of 16 years who was under the respondent's care, supervision or authority, contrary to s 321(2) of the Code.[8]
[8] ts 91 - 92, 528.
On another unknown date between 31 March 2012 and 14 August 2013, D and the respondent were again in a shed at the family property. On this occasion, the respondent caused D to hold his penis. That act constituted count 11, an offence of aggravated indecent dealing with a child of or over the age of 13 years and under the age of 16 years who was under the respondent's care, supervision or authority, contrary to s 321(4) of the Code.[9]
[9] ts 92, 528.
On another unknown date between 31 March 2012 and 14 August 2013, the respondent took D to his place of work. The respondent was doing repairs on a truck and D was sitting in the truck. D was wearing long pants and underwear, and the respondent was wearing work clothes. D got out of the truck and the respondent kissed her. He then pulled down D's pants and her underwear and also pulled down his own work pants. The respondent turned D around and penetrated her vagina with his penis from behind. This conduct constituted count 15, an offence of aggravated sexual penetration of a child of or over the age of 13 years and under the age of 16 years who was under the respondent's care, supervision or authority, contrary to s 321(2) of the Code.[10] Shortly after this incident D went to live with her grandmother in another regional town.
[10] ts 91, 528 - 529.
On 20 July 2020, D made a complaint to the police. On 26 July 2020, D, on the instructions of the police, contacted the respondent by Facebook messenger. This resulted in two recorded pretext telephone calls with the respondent in which he made admissions. In the first call, when asked if his wife had found out about 'all the sexual shit', he responded that she had not found out any of that. When asked why he had stopped messaging D, he said that she seemed to be getting on with her life and he did not want to interfere.[11]
[11] ts 92 - 93.
After again confirming that his wife had not found out about what had occurred with D, the respondent stated:[12]
So we will leave it at that. All good. You're going well. I wasn't going to get in trouble but - yeah.
[12] ts 94.
The respondent referred to the fact that his wife had seen some of his messages to D and said that his wife just thought that he 'had a crush' on D. When D said 'well, that was true', the respondent replied 'yeah'. Later in the call, the respondent said, 'What happened probably happened too early', when D asked whether he meant the 'sex', the respondent replied, 'Well, just, you know, what happened. You were not old enough, really'. When D asked why they had 'sex', the respondent said, 'Things just happened'.[13]
[13] ts 491.
The second call occurred on the same day and was, in effect, a continuation of the first. In this call, the respondent said he would keep chatting if that would make things better for D and that he was 'sorry if there was any fault in your eyes'. When D said that she was 'just so young', the respondent replied, 'I know [indistinct] and I shouldn't have done it [indistinct] things shouldn't have happened that happened'. He said he did not how to make things any better.[14] When D asked why they had 'sex' when she was only 14, the respondent said:[15]
Yeah [indistinct]. I don't know how to make things right for you [indistinct]. I was hoping that you and your nan would get [indistinct] close … I still damn worry about you, and care about you and your sister as well.
[14] ts 437.
[15] ts 95 - 96.

The respondent's personal circumstances

The respondent was born on 27 March 1967 and was aged 45 to 46 at the time of the offending. He was aged 56 at the time of sentencing.[16]
[16] ts 512.
The respondent was born in South Australia. He grew up on a farm that had been in the family for a number of generations. He was one of four children, having three older sisters. He had a happy childhood. The respondent's father passed away in 2023, and, at the time of sentencing, his mother was living in a nursing home in South Australia.[17]
[17] ts 512.
The respondent attended school up to the beginning of year 11. He left school because he was not academically inclined. He had been held back at school and struggled to keep up. During his childhood, he had an interest in playing football and played with some success.[18]
[18] ts 513.
The respondent worked as a shearer from the age of 16. This work took him to Queensland, New South Wales, the Australian Capital Territory, and South Australia. He commenced a shearing contracting business, which he ultimately sold. He then obtained employment with a grain handling business in Western Australia. This required him to live with his family in a regional town for five years and then move to a second town for a further five years with the same employer. In the last few years, prior to being charged with these offences, the respondent had returned to shearing in Western Australia on a drive‑in/drive‑out basis.[19]
[19] ts 513.
As a young man the respondent became interested in speedway racing. He pursued that interest from the age of 18 through to 21. Later in life, including at the time that the offences occurred, he renewed that interest in the form of go‑kart racing.[20]
[20] ts 513.
The respondent has had only one serious adult intimate relationship, that being with his wife. He was about 25 or 26 years old when he met his wife, who was about six years younger than him. They have been together ever since, and she has remained supportive of him. The couple have two children. Their youngest son was diagnosed with autism at a young age. The respondent and his wife have provided love and support to their son to assist him in overcoming the challenges associated with his disability, and he now lives independently and has bought his own house.[21]
[21] ts 513 - 514.
In 2010, the respondent and his wife became foster parents of children placed in State care. The first children placed in their care were two sisters of D. One of the sisters left their care at the end of 2010. The other sister remained and was joined by D in April 2012. Other children were placed with them for shorter periods throughout this time. The respondent and his wife continued to be foster carers after D left their care. In excess of 20 children of varying ages were placed with the respondent and his wife. There were no complaints or adverse reports regarding other children.[22]
[22] ts 304 - 305, 387.
The respondent has no relevant prior convictions.[23]
[23] ts 531.

Sentencing submissions

In sentencing submissions, defence counsel said that the offences occurred in the context of the respondent developing an 'infatuation' with D that 'got out of hand' but was isolated to her. The suggestion was that the respondent developed a particular sexual interest in D but did not have a sexual interest in children more generally. The fact that the offences had occurred approximately 10 years prior to sentencing and that there were no other complaints was said to be relevant to the respondent's prospects of rehabilitation and to a reduced need for personal deterrence.[24]
[24] ts 515 - 516.
Defence counsel accepted that the offending continued over an approximately 12‑month period and that it involved multiple incidents. Counsel also accepted that the respondent must have known of D's vulnerability, as a person who had previously been the victim of sexual abuse at the hands of others. It was conceded that this made the offending 'particularly serious'. It was also accepted that there had been an impact on D, notwithstanding that there was no victim impact statement.[25]
[25] ts 516 - 517
During sentencing submissions, the sentencing judge noted that there seemed to be some display of remorse by the respondent in the pretext calls. However, his Honour went on to say that this was before the charges were laid and the 'battlelines were drawn'. Later, his Honour noted that there was no suggestion of violence, threats, payment of money or entreaties not to tell anyone. His Honour said that this was consistent with an infatuation that crossed boundaries, continued for a period of time and then ceased. On that basis, his Honour said that personal deterrence was not a factor, as it seemed that the respondent was unlikely to commit any similar offence.[26]
[26] ts 515, 521 - 522, 529.
Prosecuting counsel accepted that there was nothing to indicate that the respondent had any paedophilic tendencies. The State accepted that there was a relationship between the respondent and D that evolved over time. It was an improper relationship, and a relationship which became sexual, involving a man who was infatuated with a child. The State accepted that whilst there was no report indicating the risk of reoffending, this was a case that related to a particular victim. The State also accepted that there was an element of remorse reflected in the pretext call. Nonetheless, aside from those matters, the State submitted that a significant and substantial period of imprisonment had to be imposed.[27]
[27] ts 525 - 526.

Sentencing remarks

The ground of appeal asserts implied error. It is not suggested that there are any express errors in the learned sentencing judge's sentencing remarks. Accordingly, it is unnecessary to refer to those remarks in great detail.
The sentencing judge found that the offences occurred over a period of approximately 12 months. His Honour said that the offending commenced when D was around 14 years of age. At that time, she was residing with the respondent and his wife as a foster child and was therefore under their care, supervision and authority. D had been placed in care with the respondent and his wife because she had been sexually abused in another home.[28]
[28] ts 529 - 530.
The sentencing judge found that D was vulnerable due to her age and because of her previous sexual abuse, and because she was under the respondent's care and authority.[29]
[29] ts 528.
The State had opened its case on the basis that the offending the subject of the counts in the indictment was representative and formed part of a broader course of offending.[30] Evidence was given by D in the trial that there were other occasions on which she had been sexually abused.[31] However, the respondent was acquitted of a number of counts in the indictment, and the jury, of course, were not required to provide any indication as to their findings as regards the uncharged acts.[32] This is relevant because the State, in written submissions on appeal, has suggested that the offences were representative of a broader course of conduct.[33] What the sentencing judge said in this regard was that:[34]
Now, simply for the state of the record, I confirm that you were acquitted on counts 6, 7, 8, 10, 12, 13 and 14. And those counts, obviously, form no part of my sentencing exercise. Evidence was also given by [D] that there were other occasions where you had sexually abused her. Again, I'm not sentencing you for those offences. I'm not sentencing you for anything which didn't occur. I'm only sentencing you for the offences of which you are convicted.
[30] ts 89.
[31] ts 135.
[32] ts 504 - 507.
[33] Appeal ts 4.
[34] ts 529.
It would seem clear from this passage that his Honour did not treat the offences as representative when sentencing the respondent. At the hearing of the appeal, the State accepted that whilst the offending, taken as a whole, revealed a course of conduct, it could not be said that the offences were representative of a broader course of conduct. The State accepted that there was no finding in that regard.[35]
[35] Appeal ts 3 - 4.

The sentencing judge accepted that the respondent had a good work record. He accepted that the respondent has been either married to, or in a relationship with, his wife for some 31 years, and has been a loving father to both of his children. His Honour accepted that the respondent's family remained supportive of him. He also accepted that the respondent had had a stressful time waiting for trial.
As to the question of remorse, his Honour said:[36]
In relation to evidence of remorse, it does seem to me that in the pretext calls, you did express some concern for the effect that your offending had had on the victim, and it seems to me also that you clearly understood that what you did was wrong or inappropriate. The reality is, however, that you pleaded not guilty. That doesn't mean that I increased the sentence on you, but what it means is that [if] you had have pleaded guilty at the earliest reasonable opportunity, the sentences would have been 25 per cent less than those that I'm about to impose upon you.
[36] ts 529.
The respondent suggested that this was a finding of remorse.[37] It plainly was not.
[37] Appeal ts 12 - 14.
His Honour then turned to the seriousness of the offence and noted the following salient factors:[38]
1.The age differential - at the time of the offending, the respondent was aged between 45 and 46 and D was aged between 14 and 15 years.
2.D was vulnerable because she was a child under the respondent's care, supervision and authority. Further, he was aware that she had previously been sexually abused and that she wanted to be a part of a family. His Honour noted that D had described the respondent as a father figure.
3.There was a breach of trust, in that the respondent was D's foster father. His Honour noted in this regard that he had to be careful not to 'double up' on the breach of trust because the fact that the offending occurred in circumstances where the respondent was in a position of care, supervision and authority was an aggravating factor that increased the maximum penalty to 20 years (for the penetration offences). However, as his Honour noted, this was a breach of trust on multiple fronts. It was a breach of D's trust in him, as well as a breach of the trust that the government had placed in him as a paid carer of vulnerable children.
[38] ts 529 - 531.
Whilst the fact that the respondent had no prior convictions was said by the sentencing judge to have little weight in itself, his Honour did view it as having significance in other respects. His Honour said:[39]
In my view, the significance of no prior record is, really, twofold. If the offence occurred 10 years ago and there hasn't been any act of reoffending, it's relevant to the question whether or not rehabilitation will occur and, in my view, you have excellent prospects of rehabilitation, and I don't consider that any need for personal deterrence is required in this sentence.
Sentencing is not just about you. I accept that you are a hardworking man. I accept that you have no record, that you have the support of your family, and that this offending occurred in circumstances where over a period of time, you became infatuated with the much younger [D], and I accept that there has not been any suggestion that you behaved inappropriately insofar as any other child in your care is concerned.
[39] ts 531.
His Honour noted that the overriding considerations must be the need for general deterrence and the protection of children. He recognised that there needed to be a degree of accumulation to reflect the fact that the offences occurred on separate occasions and involved separate decisions by the respondent to engage in sexual activity with a child. He then imposed the following sentences:[40]
Count 13 years' imprisonment
Count 24 years' imprisonment
Count 3, 4 and 5 3 years' imprisonment on each count
Count 93 years' imprisonment
Count 1118 months' imprisonment
Count 1518 months' imprisonment (reduced from 4 years' imprisonment for totality reasons)
The sentences on counts 2 and 15 were ordered to be served cumulatively, and the sentences on the remaining counts were ordered to be served concurrently. The total effective sentence, therefore, was one of 5 years 6 months' imprisonment. His Honour ordered that the appellant be eligible for parole.[41]
[40] ts 531 - 532.
[41] ts 532 - 533.

Ground of appeal

The ground of appeal is as follows:[42]
The learned sentencing judge erred in law by imposing a total effective sentence of 5 years and 6 months' imprisonment which infringed the first limb of the totality principle in that it was disproportionate to the overall criminality of the offending, having regard to:
i.The statutory maximum penalties of 10 years' imprisonment for count 11 and 20 years' imprisonment for counts 1 ‑ 5, 9 and 15;
ii.The serious nature and circumstances of the offences;
iii.The particular vulnerability of the complainant, who had been placed in the respondent's care as a foster child and was the victim of previous sexual abuse;
iv.The need for the sentence to adequately reflect general deterrence and appropriate punishment for offending of this nature;
v.The sentences imposed in broadly comparable cases; and
vi.The personal circumstances of the respondent.
[42] 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).
The general principles governing appeals contending that error 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[43] and recently applied in the context of State appeals against sentences imposed for sexual offences in The State of Western Australia v HNU[44] and The State of Western Australia v Pereira.[45]
[43] Kabambi v The State of Western Australia [2019] WASCA 44 [21].
[44] The State of Western Australia v HNU [2023] WASCA 6.
[45] The State of Western Australia v Pereira [2023] WASCA 162.
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.
A ground of appeal that alleges that a total effective sentence breaches the totality principle 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. It must always be borne in mind that the issue for an appellate court is not whether it would have exercised the primary sentencing discretion differently, but whether the sentence imposed was one that was not open to the sentencing judge in the proper exercise of the sentencing discretion.
A sentence imposed on an offender must be commensurate with the seriousness of the offence. The seriousness of any individual offence must be determined by taking into account the statutory penalty for the offence, the circumstances of the commission of the offence (including the vulnerability of any victim), any aggravating factors, and any mitigating factors. These factors are also relevant in assessing the seriousness of the offending as a whole.
In OTR v The State of Western Australia [No 2], this court stated that the well‑established general principles applicable to the sentencing of offenders convicted of sexual offending against children are as follows:[46]
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)
[46] OTR v The State of Western Australia [No 2] [2022] WASCA 123 [55] - [57].
While the interests of consistency require that regard be had to 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], it was said:[47]
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)
[47] OTR [No 2] [62].

Appellant's submissions

The State does not suggest that any of the individual terms imposed upon the respondent were manifestly inadequate but does say that many of those terms were lenient. That leniency, combined with generous concurrency and a reduction for totality, has resulted in a total effective sentence which fails to properly reflect the overall criminality.[48]
[48] WAB 23.
The State submits that whilst the offending was not as prolonged as in some cases, a significant aggravating feature of the offending was that D was a victim of prior sexual abuse and that this fact was known to the respondent. This could only have compounded the harm D had already suffered and deprived her of any sense of security or safety.[49]
[49] WAB 15.
As noted earlier, in its sentencing submissions the State submitted that the offences were representative of ongoing conduct. This is not consistent with the findings of the sentencing judge referred to in these reasons at [39]. Given that the respondent was acquitted of some charges it would have been difficult to make any findings regarding uncharged acts. At the hearing of the appeal, the State conceded that no such finding was made. The State, however, submitted that the offences of which the respondent was convicted constituted a persistent course of conduct.[50]
[50] Appeal ts 3 - 5.
The State referred in its submissions to Coutts v The State of Western Australia;[51] UGN v The State of Western Australia;[52] Indich v The State of Western Australia;[53] JDF v The State of Western Australia;[54] WNO v The State of Western Australia;[55] and LJH v The State of Western Australia.[56] The State submits that the outcomes in these cases suggest that the total effective sentence in the present case was erroneously low.[57]
[51] Coutts v The State of Western Australia [2023] WASCA 38.
[52] UGN v The State of Western Australia [2021] WASCA 10.
[53] Indich v The State of Western Australia [2019] WASCA 13.
[54] JDF v The State of Western Australia [2016] WASCA 221.
[55] WNO v The State of Western Australia [2021] WASCA 141.
[56] LJH v The State of Western Australia [2016] WASCA 155; (2016) 261 A Crim R 355.
[57] WAB 16.
The State submits that the respondent's personal circumstances should have carried little mitigatory weight in the face of the primacy of personal and general deterrence. General deterrence was particularly significant in the present case, given the government sanctioned foster care arrangement that existed between the victim and the respondent at the time of the offending. The importance of deterring those who seek to be entrusted with the care of vulnerable children from sexually offending against such children is self‑evident and cannot be overstated.[58]
[58] WAB 15.

Respondent's submissions

The respondent submits that the sentencing judge made unchallenged findings that were favourable to him. In particular:[59]
1.That there was no need for the sentence to incorporate personal deterrence (because the offending was confined to a particular victim and did not reflect a broader sexual interest in children).
2.That the respondent had excellent prospects of rehabilitation.
3.That there was evidence of remorse, in that the respondent had shown an understanding of the effect and consequences of what he did in the pretext calls, notwithstanding the fact that he subsequently pleaded not guilty.
[59] WAB 28.
Those findings are said to have properly justified the imposition of a lenient sentence. The respondent particularly relies on the fact that personal deterrence was not a relevant factor and that this is usually one of the primary sentencing considerations for sexual offences against children. The respondent acknowledges that the offending was objectively serious, but submits that it should not be characterised as high order offending when considered in the context of the findings referred to. The absence of a need for personal deterrence justified the imposition of a lesser sentence than would otherwise have been appropriate.[60]
[60] WAB 28 - 29.
The respondent submits that each of the cases referred to by the State has sufficient distinguishing features as to explain any apparent inconsistency between them and the present case. Those cases predominantly refer to sentences imposed where no finding of remorse was made. In written submissions, the respondent said that the remorse was an important mitigating factor in this case.[61] However, at the hearing of the appeal, counsel for the respondent accepted that the respondent's expressions of concern in the pretext calls could not be viewed as remorse having regard to the fact that he later denied the offences and went to trial. It was also accepted that the sentencing judge had not made a finding of remorse.[62]
[61] WAB 39.
[62] Appeal ts 14 - 15.

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. Where the child is under the care, supervision, or authority of the offender, as is the case here, the maximum penalty is 20 years' imprisonment.[63]
[63] Code, s 321(2), s 321(7)(a), s 321(7)(b).
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. Where the child is under the care, supervision, or authority of the offender, as is the case here, the maximum penalty is 10 years' imprisonment.[64]
[64] Code, s 321(4), s 321(8)(a), s 321(8)(b).
In the present case, D was under the care, supervision, or authority of the respondent at all material times. As D's foster parent, the respondent was responsible for her care, had supervision of her, and authority over her. That circumstance of aggravation was pleaded for each charge in the indictment and the respondent was found guilty of the aggravated form of the offence. The higher maximum penalties that applied were the relevant reference point in determining the appropriate sentences in this case. Those higher maximum penalties reflect the view of parliament of the increased seriousness of an offence which involves the abuse of a position of care, supervision, or authority in respect of a child.
The seriousness of the offending in this case is readily apparent. The respondent committed multiple sexual offences over approximately 12 months against a 14‑year‑old girl who was his foster child. The vulnerability of the victim as a foster child was heightened by the fact that she had been sexually abused previously, a fact known to the respondent. He must have been aware of the wrongfulness of what he was doing and of the inevitable adverse consequences for the victim. To describe his actions as an infatuation places a gloss of legitimacy on what was plainly very serious illegal conduct.
There were a number of aggravating features:
1.The age disparity between the respondent and D.
2.The length of time over which the offending continued.
3.That the offending was not a single aberration but constituted a persistent course of conduct.
4.That the offending included several different types of sexual acts, including cunnilingus, fellatio, digital penetration and penile/vaginal penetration.
5.That D was vulnerable both by reason of the fact that she was in State care and because she had previously been sexually abused, as the respondent well knew.
6.That the respondent was in a position of trust as a foster parent and that he abused that trust (though it must be acknowledged that the fact that D was under the care, supervision or authority of the respondent was a statutory aggravating factor which attracted a higher maximum penalty).
General deterrence was a very important sentencing consideration in the present case, as it is in all cases involving sexual offending against children. The need to ensure the protection of children is no less significant with children in foster care arrangements than with other children. Indeed, foster parents are entrusted by the State to provide a safe and secure home for children who are often traumatised and vulnerable. Where that trust is abused in such an egregious way, the sentence imposed must both reflect the seriousness of the offending and act as a deterrent to others. Furthermore, public confidence in the system of State care is liable to be undermined by this type of offending unless sentences are imposed that strongly deter such behaviour.

As to personal deterrence, it is generally safe to assume that a person who has been prepared to repeatedly cross legal and moral boundaries will need to be deterred from doing so again. To the extent that the sentencing judge considered that personal deterrence was not a factor in this case, it was because he viewed the offending as being a product of the respondent's particular sexual interest in D, rather than a sexual interest in children generally. It may well be that personal deterrence will be a more significant factor for an offender who has a proven sexual interest in children generally. The risk of reoffending would likely be greater in such a case. But that is not to say that personal deterrence is irrelevant in the case of an offender who has formed a specific sexual interest in a single child. That is not an uncommon occurrence in offending of this type. The fact that such an offender has been unable to restrain their sexual interest despite knowing that the object of their interest is a child will usually justify personal deterrence being afforded some weight in the sentencing exercise. However, the appellant does not challenge the finding of the sentencing judge, and for present purposes we will assume the correctness of that finding, albeit that it was probably an unduly favourable one.
As to rehabilitation, the basis for the finding that the respondent had good prospects of rehabilitation was that there was nothing to indicate that he offended in a similar way in the 10 years that had elapsed since the offending commenced and that he also has the continuing support of his family. There was nothing remarkable in this. It is not unusual for offenders who commit sexual offences against children not to be convicted until many years later and for them to have otherwise exemplary characters and supportive families. This was not a case where the offender had engaged in a course of rehabilitation prior to being sentenced. That would have required acceptance of what he had done. The respondent had pleaded not guilty and maintained a stance of denial at the trial. The grounds for concluding that the respondent had good prospects of rehabilitation were sparse, though not entirely absent. Again, the appellant does not challenge the finding of the sentencing judge and we will assume its correctness.
As to remorse, as has been pointed out earlier in these reasons, the sentencing judge made no finding in that regard. All that was noted was that in the pretext calls, the respondent had expressed some concern and understanding of the impact that the offending had on the victim. As against this, when charged the respondent consistently denied the offences and gave evidence to that effect at the trial. He sought to explain away the pretext calls by saying that he did not wish to confront D, even though some of his answers at the time were apparent admissions to the sexual offending.[65] It was put to the victim in cross‑examination that none of the sexual acts had occurred.[66] In this light, if there was any fleeting moment of remorse at the time of the pretext calls it was not sustained. It is much more likely that his conduct in those calls was a self‑serving attempt to placate D so that she would not pursue the matter. In any event, when viewed as a whole, it could not be sensibly maintained that the respondent was truly remorseful. His pleas of not guilty and the conduct of the trial stood squarely against such a finding. True remorse involves an unequivocal acceptance of wrongdoing and a willingness to make amends for the damage caused. In this regard, actions are often a better indicator of remorse than anything said by the offender.
[65] ts 342.
[66] ts 248.
Although the respondent has sought to distinguish his case on the basis of what is said to be an unusual combination of personal factors, when seen in proper context there is nothing remarkable about his personal circumstances. He was a mature man at the time of the offending and the offences were not a momentary aberration. His good work record, supportive family and lack of prior record were relevant, but not factors that would ordinarily be accorded great weight in respect of offences of this nature.
Turning to the cases, Coutts can be put to one side as it is not truly comparable. That case involved two child victims, but the offences did not have the circumstance of aggravation of having been committed against victims who were under the care, supervision or authority of the offender and thus did not attract the higher applicable maximum penalty. Furthermore, the offender in Coutts had the benefit of an early plea of guilty, remorse and a history of childhood trauma.
In UGN, the offender was convicted after trial of eight sexual offences against a child under the age of 13. The offender was a family friend of the child's mother. The offending occurred over about five years, commencing when the child was 7 or 8 years old. The offending comprised two counts of digital penetration and six counts of indecent dealing and occurred on five separate occasions and was representative of ongoing conduct. The offender was sentenced to a total effective sentence of 8 years 6 months' imprisonment. His appeal against that sentence on the basis that it infringed the totality principle was dismissed.
Whilst there were some aggravating factors in UGN that are not present in the current case, such as the younger age of the victim, the duration of the offending, the representative nature of the offences and the fact that the victim was groomed, there are other factors that indicated that the current offending is more serious. Those other factors include the greater number of penetration offences and the variety of sexual acts committed. Furthermore, the absence of grooming in the current case is less significant given that the victim had been sexually abused previously and the respondent was aware of this. Having regard to all of those factors, the total effective sentence imposed in the present case is inconsistent with the sentence of 8 years 6 months' imprisonment in UGN.
In Indich, the offender pleaded guilty to two counts of sexually penetrating his 14‑year‑old de facto stepdaughter. He received a 20% discount for his pleas of guilty. The offences were not said to be representative of ongoing conduct. There was no evidence of grooming or threats. The offender was sentenced to a total effective sentence of 7 years 2 months' imprisonment. His appeal against that sentence, on grounds that included an alleged breach of the totality principle, was dismissed.
The offending in the present case is more serious than that in Indich, given that it occurred on seven different occasions and comprised eight separate offences, of which seven were penetration offences. Like Indich, there was an abuse of a position of trust, but unlike Indich, the respondent did not have the significant mitigating factor of pleas of guilty. When those factors are taken into account the total effective sentence in the present case is inconsistent with the sentence of 7 years 2 months' imprisonment in Indich.
In JDF, the offender was convicted after trial of five counts of sexually penetrating the child victim. Three of the offences occurred when the child was under the age of 13 and two occurred when the child was between 13 and 16 years old. The offences all attracted a 20‑year maximum penalty because the child was under the care, authority or supervision of the offender, as he was her foster parent. The offences were representative of a wider course of conduct. The earlier offences involved a degree of violence. The offender was sentenced to a total effective sentence of 8 years 6 months' imprisonment. An appeal against that sentence on the basis that it infringed the totality principle was dismissed.
Whilst there were some aggravating factors in JDF that are not present in the current case, such as the use of violence, the younger age of the victim and the representative nature of the offences, there are other factors that indicate that the current offending is broadly similar in its level of seriousness. Those factors include the greater number of offences, and in particular penetration offences, and the variety of sexual acts committed. In both cases the convictions followed a trial and were aggravated by occurring in the context of foster care. Having regard to all of those factors, the total effective sentence imposed in the present case is inconsistent with the sentence of 8 years 6 months' imprisonment in JDF.
In WNO, the offender was convicted after trial of 12 sexual offences against his 14‑year‑old niece. The offences occurred over a five‑day period, when the victim's parents were overseas. Nine of the offences were indecent dealing and three were digital penetration of the vagina. Some of the offences were accompanied by verbal and physical aggression. The offender was sentenced to a total effective sentence of 6 years 9 months' imprisonment. His appeal against that sentence on the basis that it breached the totality principle was dismissed.
The offending in the present case is significantly more serious than that in WNO, involving, as it did, seven acts of penetration of differing types and one act of indecent dealing that occurred in the course of seven distinct incidents over a period of 12 months. The aggravating factor of the victim being under the offender's care, supervision or authority was not present in WNO. When those factors are taken into account, the total effective sentence in the present case is inconsistent with the sentence of 6 years 9 months imposed in WNO.
In LJH, the offender pleaded guilty to 26 sexual penetration offences, of which nine were penile/vaginal penetration offences. The offences were committed against the offender's stepdaughter when she was aged 14 to 15 years old and extended over a period of almost two years. The offences were representative of ongoing conduct and some grooming was involved. Much of the offending was recorded by the offender. A total effective sentence of 13 years' imprisonment was reduced on appeal to 10 years' imprisonment. The appeal was based on express errors by the sentencing judge.
The offending in LJH is arguably more serious than the present case, having regard to the greater number of offences and longer period over which they were committed. However, even allowing for that fact, the cases are broadly similar and yet the offender in LJH received a sentence of 10 years' imprisonment, after taking into account his early pleas of guilty, as compared to the respondent who received a sentence of 5 years 6 months after trial. When those factors are taken into account the total effective sentence in the present case is inconsistent with the sentence imposed in LJH.
When regard is had to the statutory maximum penalties, the seriousness of the offending, the particular vulnerability of the victim, the need for the sentence to adequately reflect general deterrence and appropriate punishment of offending of this nature, the personal circumstances of the respondent, and sentences imposed in broadly comparable cases, the total effective sentence of 5 years 6 months' imprisonment fails to adequately reflect the high level of criminality of the respondent's overall offending. In these circumstances, error can be inferred in the exercise of the sentencing discretion. The total effective sentence is not proportionate to the overall criminality and the first limb of the totality principle was infringed.
The total effective sentence of 5 years 6 months' imprisonment was plainly unreasonable or unjust. That sentence did not reflect the fact that the respondent was convicted after trial, had expressed no genuine remorse for the offending and that the offences were aggravated by having been committed whilst the victim was under the respondent's care, supervision and authority. A different and significantly higher sentence should have been imposed. Accordingly, the ground of appeal has been made out.

Residual discretion

The respondent submits that this court should exercise the residual discretion to dismiss the appeal, even if the ground is made out. It is suggested that the respondent has performed well as a prisoner. He has worked in the prison garden and is well regarded for that work and has been praised for the quality of the produce from the garden. He has been studying horticulture. He has been placed in a self‑care unit due to his good behaviour. These factors are said to indicate good prospects for rehabilitation. The respondent also submits that there was some delay by the State in bringing this appeal.[67]
[67] Appeal ts 21 - 23.
The main purpose of prosecution appeals against sentence is to lay down principles for the governance and guidance of courts in sentencing convicted persons. 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 not to intervene should be exercised.
The sentence in this case was not proportionate to the overall criminality of the respondent's conduct. That conclusion establishes that the outcome is not in accordance with sentencing standards for offences of this nature. It is necessary for the appeal to be allowed in order to ensure the proper maintenance of those sentencing standards. The case has utility in providing guidance as to appropriate sentencing standards and their application.
As to any injustice to the respondent, the State filed a notice of appeal within the time permitted. No extension of time was required. An urgent appeal order was not sought, or required, having regard to the length of the sentence imposed. There were no delays in the filing of the appellant's case (or the respondent's answer). The hearing was listed in accordance with the usual procedure. The respondent's performance in prison is to his credit, but it does not support a conclusion that to allow the appeal would be unjust. There is no basis for the exercise of the residual discretion.

Resentencing

The circumstances of the offending and the respondent's personal circumstances have been set out earlier in these reasons. The only additional information concerns the respondent's performance in prison, which has been referred to in [86].
In exercising the sentencing discretion afresh, we are of the view that a total effective sentence of 7 years 9 months' imprisonment is appropriate. Such a sentence would reflect 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 lesser weight in respect of offences of this nature.
We would achieve that sentence by setting aside the sentence of 18 months' imprisonment on count 15 and substituting a sentence of 3 years 9 months' imprisonment to be served cumulatively on the sentence of 4 years' imprisonment imposed on count 2. The sentences imposed by the sentencing judge would otherwise remain unaffected. An order that the respondent is eligible for parole should be made.

Orders

The orders are:
1.The appeal is allowed.
2.The sentence imposed on count 15 on IND 2283 of 2021 is set aside and in lieu thereof a sentence of 3 years 9 months' immediate imprisonment is substituted, cumulative on the sentence of 4 years imposed on count 2.
3.The total effective sentence of 7 years 9 months' imprisonment is deemed to have taken effect on 28 June 2023.
4.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.
ID
Research Associate to the Honourable Justice Hall
16 JULY 2024