Weston v The State of Western Australia - [2025] WASCA 131

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT :   THE COURT OF APPEAL (WA)
CITATION:   WESTON -v- THE STATE OF WESTERN AUSTRALIA [2025] WASCA 131
CORAM:   MAZZA JA
VAUGHAN JA

HEARD:   6 AUGUST 2025
DELIVERED          :   5 SEPTEMBER 2025
FILE NO/S:   CACR 133 of 2024
BETWEEN:   DANE WESTON
Appellant

AND

THE STATE OF WESTERN AUSTRALIA
Respondent

ON APPEAL FROM:
Jurisdiction              :   DISTRICT COURT OF WESTERN AUSTRALIA
Coram:   PRIOR DCJ
File Number            :   IND KAR 2 of 2024

Catchwords:

Criminal law - Application for leave to appeal against sentence - Appellant convicted on late pleas of guilty to nine offences committed against complainant, whom he was in family relationship with - Whether total effective sentence breaches first limb of totality principle

Legislation:

Criminal Appeals Act 2004 (WA), s 27(3)
Criminal Code (WA), s 298(b), s 324(1), s 326(1), s 338B(1)(b)(ii)
Sentencing Act 1995 (WA), s 9AA, s 37

Result:

Leave to appeal refused
Appeal dismissed

Category: B

Representation:

Counsel:

Appellant	:	C C Porter
Respondent	:	No appearance

Solicitors:

Appellant	:	Tudori Hager Grubb
Respondent	:	Director of Public Prosecutions (WA)

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

C v The State of Western Australia [2006] WASCA 261
Hutton v The State of Western Australia [2022] WASCA 133
Kabambi v The State of Western Australia [2019] WASCA 44
McFarlane v The State of Western Australia [2024] WASCA 33
Musgrave v The State of Western Australia [2021] WASCA 67; (2021) 289 A Crim R 17
Ng v The State of Western Australia [2025] WASCA 121
The State of Western Australia v Akizuki [2008] WASCA 267; (2008) 192 A Crim R 373

JUDGMENT OF THE COURT:

This is an application for leave to appeal against sentence.
The appellant was convicted on his pleas of guilty, entered on the first scheduled day of his trial, of nine offences. All but two of them occurred in a number of separate incidents over two days in a regional town, against the victim, a woman who we will refer to as B,[1] with whom the appellant was in a family relationship. On 30 October 2024, the appellant was sentenced by Prior DCJ to a total effective sentence of 7 years 2 months' imprisonment, which was backdated to 23 September 2023.
[1] Not the victim's real initial.
On 26 November 2024, the sentence was corrected under s 37 of the Sentencing Act 1995 (WA). This resulted in one of the individual sentences (count 6) being reduced by seven days, and the backdating order being amended so that the sentences were to have taken effect on 30 September 2023. After correction, the total effective sentence was expressed, somewhat unusually, as 6 years 2 months 358 days' imprisonment in a document titled 'Further Amended Certificate of Final Outcome of Charge'.
The details of the offences committed by the appellant and the sentences that were imposed are set out in the table below.

Count	Offence	Description	Maximum penalty	Sentence imposed
5	Criminal Code (WA) (the Code), s 324(1)	On 25 September 2023 at a regional town, the appellant unlawfully and indecently assaulted B by touching her vaginal area. And the appellant was in a family relationship with B.	7 years' imprisonment	6 months' imprisonment (concurrent)
6	Code, s 326(1)	On 25 September 2023 at a regional town, the appellant sexually penetrated B without her consent, by penetrating her vagina with his finger. And the appellant was in a family relationship with B.	20 years' imprisonment	3 years 358 days' imprisonment (head sentence)
7	Code, s 324(1)	On 25 September 2023 at a regional town, the appellant unlawfully and indecently assaulted B by biting her vagina. And the appellant was in a family relationship with B.	7 years' imprisonment	8 months' imprisonment (concurrent)
8	Code, s 324(1)	On 25 September 2023 at a regional town, the appellant unlawfully and indecently assaulted B by touching her face with his penis. And the appellant was in a family relationship with B.	7 years' imprisonment	10 months' imprisonment (cumulative)
12	Code, s 324(1)	On 25 September 2023 at a regional town, the appellant unlawfully and indecently assaulted B by touching her buttocks area. And the appellant was in a family relationship with B.	7 years' imprisonment	8 months' imprisonment (concurrent)
13	Code, s 324(1)	On 25 September 2023 at a regional town, the appellant unlawfully and indecently assaulted B by touching her vagina. And the appellant was in a family relationship with B.	7 years' imprisonment	10 months' imprisonment (cumulative)
14	Code, s 298(b)	On 26 September 2023 at a regional town, the appellant unlawfully impeded the normal breathing of B by manually applying pressure on, or to, her neck.	5 years' imprisonment	1 year's imprisonment (cumulative)
15	Code, s 338B(1)(b)(ii)	On 28 September 2023 in Western Australia, the appellant made a threat to unlawfully distribute an intimate image of B. And the appellant was in a family relationship.	5 years' imprisonment	6 months' imprisonment (concurrent)
16	Code, s 338B(1)(b)(ii)	On a date unknown between 26 September and 30 September 2023 in Western Australia, the appellant made a threat to unlawfully distribute an intimate image of B. And the appellant was in a family relationship with B.	5 years' imprisonment	6 months' imprisonment (cumulative)
Total effective sentence (as expressed in the Further Amended Certificate of Final Outcome of Charge):			6 years 2 months 358 days' imprisonment

The appellant relies on a single ground of appeal, which alleges that the total effective sentence infringes the first limb of the totality principle because it does not bear a proper relationship to the overall criminality of the appellant's conduct, having regard to all of the relevant circumstances.
For the reasons that follow, the ground of appeal has no reasonable prospect of succeeding, and leave to appeal must be refused. Accordingly, pursuant to s 27(3) of the Criminal Appeals Act 2004 (WA), the appeal is taken to have been dismissed.

The facts

At the sentencing proceedings on 22 October 2024, an agreed statement of facts was read aloud by the prosecutor. Those facts may be summarised as follows.
At the time of the offending, the appellant was living and working in a regional town in Western Australia. B lived in the same regional town. The appellant and B commenced a relationship in April 2023. Each of them used the prohibited drug gamma‑hydroxybutyrate, commonly referred to as 'GHB'. The sentencing judge found that the drug enhances sexual arousal and, when consumed in large quantities, can also have a sedative effect. The sentencing judge characterised the relationship between the appellant and B at the time of the offending as 'toxic'.[2] The appellant was working long hours, and abusing alcohol and GHB. B was using GHB and methylamphetamine.
[2] Sentencing remarks, ts 11.
While under the influence of drugs, particularly GHB, the appellant and B often argued. They also engaged in sexual activity, referred to by the appellant's lawyer in the sentencing proceedings as 'chemical sex'.
On 24 September 2023, the appellant returned to the regional town from an interstate trip. He went to B's house. At some point that day, the appellant and B discussed having sex. B indicated to the appellant that she was prepared to have sex with him, but she did not want him to ejaculate inside her because she had recently undergone surgery.
Sometime after this conversation, while at B's house, the appellant and B consumed some GHB. The appellant and B began arguing. The appellant's behaviour meant that B no longer wanted to have sex with him. The appellant responded by telling B, 'I'm going to fuck you right now. Come and do your job'. B told the appellant to get out of her house, which he did not do.
In the early hours of 25 September 2023, B took her daughter and her daughter's friend to a neighbour's house. On her return, the appellant grabbed B's vagina on the outside of her clothing, and escorted her into a bedroom (count 5). He threw B onto the bed and pulled her shorts and underwear down. He then forcibly inserted two fingers into B's vagina, causing her pain (count 6). Next, he bit her vagina, also causing her pain (count 7). While he did this, B was crying and telling the appellant to stop. All of the conduct the subject of counts 5, 6 and 7 occurred without B's consent.
B then left her house, and was seen on CCTV footage to, amongst other things, walk towards a hospital with the appellant following her. The appellant returned to B's home. In the meantime, B arrived at the hospital, but did not go inside. Eventually, she returned to her home and laid down on a couch in front of a television. She heard the appellant say, 'You should have just done your job and fucked me'.
B slept intermittently on the couch. Over the next few hours, the appellant woke B and attempted to engage in sexual activity with her several times. She told him to stop, and that she did not want to have anything to do with him. At one point, B woke up to the appellant's penis in her face, and he smacked her with it (count 8).
On the evening of 25 September 2023, the appellant and B helped a friend move some furniture into that friend's new house. They then picked up B's son, returned to B's house, and had dinner. After the children went to bed, the appellant and B took some GHB. B's neighbour came over to visit unannounced, and she and B sat out at the front of B's house and smoked a cigarette. After B's neighbour left, the appellant became angry. B and the appellant then consumed more GHB. In the ensuing period, the appellant insulted B and persistently tried to have sex with her, but she refused and told him that she was not interested. At one point, B told the appellant to 'fuck off and leave [her] alone'.
B recalled that, at some point, the GHB she had consumed began to really affect her. She passed out on the bathroom floor. When she awoke, she found the appellant standing over her, laughing and saying derogatory things about her. This, and other events, were video‑recorded by the appellant on his mobile telephone, without B's consent. There were a number of videos of B filmed by the appellant, in which she is depicted in a demeaning way. In one such video, B is very intoxicated and bending over a bathroom counter, exposing her bottom. The appellant is heard to say, 'Oi. Here, for the boys', and after which he puts the camera on B's bottom. He then slaps her bottom (count 12), causing her to become further unbalanced. After this, he can be heard saying, 'Oh look at her. She's a little junkie slut. Finger yourself, junkie slut. Look at her, what a junkie hoe'. While in her heavily intoxicated state, B then complied with the appellant's instructions.
In another video recording, made by the appellant on 26 September 2023, B can be seen slumped against a wall in the bathroom, apparently heavily affected by drugs. After B failed to respond to the appellant's request that she make a peace sign, the appellant grabbed and squeezed her vaginal area several times with his left hand (count 13). As he did this, B flinched and kicked out.
B recalled waking up at about 2.00 am on 26 September 2023 on the bathroom floor. After calling out for help, the appellant dragged her into the bedroom and threw her onto the bed. He then put his hand around her neck and squeezed it hard, making it difficult for B to breathe (count 14). The appellant put his other hand over B's mouth and said, 'This is your fault. Fuck you, you slut'. He then let go of her neck.
On 27 September 2023, an argument ensued between B and the appellant, and the appellant left B's house. A co‑worker of B's reported the matters involving the appellant to the police.
On 30 September 2023, B was medically examined. The doctor who examined her noted that she was suffering from a headache, pain and swelling to her neck, painful swallow with solids, upper back pain, lower back pain, and bruising to her limbs and torso. The doctor expressed the view that the injuries he observed were consistent with blunt trauma.
Later in the evening of 30 September 2023, the appellant was arrested. An examination of his mobile telephone revealed several videos of B recorded on Snapchat.
Further enquiries revealed that the appellant sent two emails to B on 28 September 2023. In one of those emails, the appellant wrote, 'If you don't call, I'm sending your videos to everyone' (count 15). In the second email, sent later that day, the appellant wrote, 'You're going to pay for dogging me and hurting me. If you don't ring me by 2 pm, the videos are going to everyone' (count 16). The videos referred to are the videos of B recorded by the appellant on his mobile telephone.

The appellant's personal circumstances

At the time he was sentenced, the appellant was 39 years of age.
The appellant was born and raised in Queensland. His parents separated when he was 10 years of age. The separation had a significant impact upon him as a child. After leaving school at year 10, the appellant completed an apprenticeship as a roof tiler. The appellant has a consistent work history. The appellant moved from Queensland to the regional town in Western Australia in 2022. He would often work long hours. When not working, he consumed large amounts of alcohol and drugs, including, as we have mentioned, GHB.
The appellant has a short criminal history in the Magistrates Court for offences of breaching family violence restraining orders, police orders and protective bail conditions. Two of those offences related to B, and another two of those offences related to the appellant's former wife.
The sentencing judge received a character reference from a person who had known the appellant for over five years, and who spoke well of him. The referee observed that, while the appellant was in custody on remand, he had expressed remorse for his offending.

Victim impact statement

The sentencing judge had regard to the victim impact statement. The offending has caused B to be overwhelmed with fear, anxiety, and a sense of helplessness. She has experienced flashbacks and nightmares. Both B and her daughter have attended counselling. Ultimately, B lost her job because of the impact of the offending upon her, with the consequence that she also lost her home which was tied to that employment. B has struggled financially. She has found it difficult to build new relationships, and to trust men. B suffers from anxiety, which has caused her problems in participating in public events.

The sentencing remarks

The sentencing judge characterised the sexual offences committed by the appellant as being 'very serious'.[3] He described the offences as being 'physical, sexual, violent and emotional assaults' on B, in circumstances where she was the appellant's intimate partner at the time. The sentencinge judge noted that the offending involved 'a fundamental abuse of trust'.
[3] Sentencing remarks, ts 74.
The sentencing judge described the appellant's behaviour towards B as 'degrading and humiliating'. He found that B was vulnerable. The sentencing judge also noted the adverse impact the offending had had upon B.
A specific aggravating factor identified by the sentencing judge was the persistence of the offending.[4] His Honour observed that the offences occurred at B's house over two days and two nights, and were committed in separate incidents.
[4] Sentencing remarks, ts 72.
His Honour observed that it would have been clear to the appellant that B was not consenting to any of the acts which constituted the sexual offences, and that, although the appellant had the opportunity to cease his behaviour towards her and leave the house, he did not do so.
The sentencing judge identified two significant mitigating factors, being the pleas of guilty entered by the appellant on the first scheduled day of his trial, and the fact that he had 'some remorse' for what he did. With respect to the first of those factors, the sentencing judge observed that, prior to the pleas of guilty being entered, the evidence of both B's young daughter and her daughter's friend was pre‑recorded. His Honour said the pleas resulted in a trial, which he estimated would have taken at least five days, being avoided. The sentencing judge noted that the pleas spared the victim and other witnesses from having to testify. His Honour therefore gave a discount of 10% for the pleas of guilty, pursuant to s 9AA of the Sentencing Act.
His Honour noted that the principal sentencing considerations for offences of the kind committed by the appellant are punishment, personal and general deterrence, and rehabilitation. His Honour also observed that there is no tariff for sexual offences. He acknowledged recent statements by this court of the need to 'firm up' sentences for offences of violence committed in the course of a domestic relationship.
His Honour characterised the appellant's acts of filming B whilst she was in a vulnerable state, and then threatening to distribute those recordings, as serious offences. He observed that there can be no certainty that the recordings made by the appellant have been permanently destroyed.
In applying the totality principle, his Honour took into account that there were separate incidents of offending within the 48‑hour period, and there were also several different types of offending. Having regard to these circumstances, and to the fact that the offending occurred over an extended period of time rather than as part of a single incident, his Honour considered that some of the sentences of imprisonment should be served cumulatively.

The first limb of the totality principle

An alleged infringement of the first limb of the totality principle asserts the existence of an implied error. The general principles governing appeals which allege an implied error are well established and have been described by this court in many cases, including, for example, Kabambi v The State of Western Australia,[5] and Ng v The State of Western Australia.[6]
[5] Kabambi v The State of Western Australia [2019] WASCA 44 [21].
[6] Ng v The State of Western Australia [2025] WASCA 121 [87] ‑ [95].
The first limb of the totality principle requires that the total effective sentence imposed upon an offender who has committed multiple offences must bear a proper relationship to the overall criminality involved in all of the offences, viewed in their entirety, and after having regard to all relevant circumstances, including those referable to the offender personally, and the outcomes in any relevant comparable cases.
The practical effect of the totality principle is, ordinarily, to arrive at an aggregate sentence that is less than that which would have been achieved by a mere adding up of all of the terms appropriate for the individual offences. The severity, or leniency, of an individual sentence that is not manifestly excessive nor manifestly inadequate is relevant in evaluating whether the total effective sentence infringes the first limb of the totality principle.
Where an infringement of the totality principle is alleged, the analysis of comparable cases is often difficult, and may be of limited utility. This is because it is rare to find a comparable case (or cases) where there is a complete correlation between the offences charged and the circumstances of the respective offenders. More often, there will be considerable differences in the nature of the offences, their number, and their circumstances, as well as in the circumstances of the individual offenders. Further, it is not always easy to make comparisons as to the seriousness of the offences and the moral culpability of the offenders. Despite these difficulties, in order to ensure broad consistency, comparable cases must be considered. There will be cases where there is no relevant comparator. It is well established that such a circumstance is not a barrier to an appellate court finding that there has been an infringement of the totality principle.

A sometimes useful guide in the application of the totality principle is the so‑called 'one transaction rule'. This 'rule' is not hard and fast. It is merely a rule of thumb, designed to assist sentencing judges in the application of the totality principle where multiple offences are committed close in time, or as part of a spree. The 'rule' does not preclude the imposition of cumulative sentences of imprisonment in such circumstances.[7] Ultimately, what is necessary is that the total effective sentence complies with the requirements of the totality principle.
[7] See, for example, Hutton v The State of Western Australia [2022] WASCA 133 [62].

The appellant's submissions

The appellant did not challenge any of the individual sentences imposed. However, he submitted that the individual sentence imposed on count 6 was high.
Counsel for the appellant accepted that the comparable cases cited in the appellant's case provided 'the most limited guidance'.[8]
[8] Appeal ts 3.
Counsel for the appellant focused his oral submissions on three points. First, in respect of count 6, counsel noted that this was the only offence committed by the appellant involving sexual penetration of B. While it was accepted by counsel that any offence contrary to s 326 of the Code is serious, the offence in this case involved digital penetration of the victim's vagina, which, it was said, was 'somewhat less serious' than offences of penile penetration without consent. Secondly, it was submitted that the circumstances of the sexual offending in the present case were unusual because B and the appellant had each voluntarily and repeatedly ingested the prohibited drug, GHB. It was acknowledged by counsel that this factor did not affect the appellant's moral culpability, but it was submitted that, having regard to the drug's capacity to reduce inhibitions, this factor decreased the seriousness of the aggravating factor of persistence. The third point made by counsel for the appellant was that the pleas of guilty were of significant benefit to B, and together with statements made by the appellant that he was 'disgusted' with himself, they reflected a higher level of remorse.

Disposition

The offences were, individually and collectively, objectively very serious. We adopt the characterisations and observations made by the sentencing judge in his sentencing remarks, summarised at [28] ‑ [31] above.
Of the sexual offences committed by the appellant, the most serious was count 6. We do not accept counsel's submission that the mere fact that the appellant committed an act of digital penetration, rather than penile penetration, made the offence 'somewhat less serious'. As Quinlan CJ pointed out in Musgrave v The State of Western Australia,[9] such a proposition is wrong as a matter of law. Every offence of unlawful sexual penetration must be determined having regard to its particular circumstances, including the effect that it has on the individual victim. The act of digital penetration in this case constituted a serious violation of B's bodily integrity. Moreover, it was forceful and inflicted pain onto B. It cannot be overlooked that this offence, and all of the other sexual offences the subject of this appeal, were committed in the context of the appellant's degradation and humiliation of B. The appellant insulted and taunted B; took advantage of the fact that she was under the influence of GHB to film her whilst in a personally compromising situation; and then, later, caused her fear and further humiliation by threatening to distribute those recordings of her.
[9] Musgrave v The State of Western Australia [2021] WASCA 67; (2021) 289 A Crim R 17 [4] ‑ [8], citing The State of Western Australia v Akizuki [2008] WASCA 267; (2008) 192 A Crim R 373 [68] (Steytler P), and C v The State of Western Australia [2006] WASCA 261 [35] (Wheeler JA).
Bearing in mind that all of the sexual offending occurred in circumstances of aggravation,[10] which rendered the appellant liable to higher maximum penalties for the sexual offending, none of the individual sentences imposed could be said to be 'high'. The so‑called 'comparable cases' cited to support the appellant's contention that the sentence in respect of count 6 was 'high' were cases in respect of offences under s 325 of the Code, which carries a lesser maximum penalty of 14 years' imprisonment. Comparable cases for the purpose of an allegation of manifest excess or manifest inadequacy are comparable cases in relation to offences with comparable factual elements and comparable maximum penalties. The cases relied on by the appellant were not comparable in the latter respect.
[10] Namely that the appellant was in a family relationship with the victim at the time of the commission of the offences: see Code, s 221(a).
In our opinion, the circumstance that each of the appellant and B were under the influence of the prohibited drug, GHB, does not reduce the seriousness of the offending. As a matter of sentencing principle, self‑induced intoxication does not in any way mitigate the seriousness of what the appellant did.[11] Further, on the facts of this case, it appears that the appellant had at least a sufficient awareness to take advantage of B's intoxication to degrade and humiliate her.
[11] See, for example, McFarlane v The State of Western Australia [2024] WASCA 33 [50] ‑ [51], and the cases cited therein.
The offending involved several incidents which occurred over two days and two nights. While it might be said that the offending occurred in a spree, some accumulation was nonetheless required to reflect the fact that there were separate incidents of offending, and separate types of offending. For example, count 14, which involved an act of strangulation, was different in nature to the sexual offending, and was itself a serious offence which exposed B to the potential of very serious injury or accidental death as a result of asphyxiation. The threats made by the appellant were also of a different nature to his other offending. The appellant had the capacity to carry out the threats to unlawfully distribute the recordings he had made of the victim. They were disturbing and menacing.
This court has said on many occasions that there is no tariff for sexual offending, and that each case must be determined upon its own individual facts and circumstances. None of the cases said to be comparable cited in the appellant's case were apt comparators, given that they did not involve offences which were aggravated by the fact that they were committed in circumstances where the offender and the victim were in a family relationship. In these circumstances, there is no utility in citing or analysing them in detail.
There were the two mitigating factors identified by the sentencing judge. The fact that the appellant pleaded guilty on the morning of the first day of his scheduled trial would have been a relief to B, and was of some utility to the State. However, the pleas were entered as late as they could possibly be entered, and not before the evidence of B's daughter and her daughter's friend was pre‑recorded. The appellant did not challenge the 10% discount his Honour gave under s 9AA of the Sentencing Act. In all of the circumstances of this case, the imposition of a discount of 10% was all that could reasonably have been afforded to the appellant. It must also be recognised that the sentencing judge found that the appellant was somewhat remorseful. However, contrary to the submissions made on behalf of the appellant, we do not see how it can be said that the appellant's level of remorse was higher than 'usual'. Further, the appellant did not have the benefit of prior good character, and his history of offending in relation to B and his former wife highlighted the need for personal deterrence.
In our opinion, having regard to the overall criminality involved in all of the offences, viewed in their entirety, and to all of the relevant circumstances, including those referable to the appellant personally, the total effective sentence imposed by the sentencing judge was well within the proper exercise of the sentencing discretion. It was not unreasonable or plainly unjust. Implied error has not been established. The total effective sentence does not infringe the first limb of the totality principle. The ground of appeal has no reasonable prospect of success. The appeal must be taken to be dismissed.

Orders

The orders we would make are as follows:
1.Leave to appeal is refused.
2.The appeal is dismissed.

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
5 SEPTEMBER 2025