XBX v The State of Western Australia
[2024] WASCA 43
•26 APRIL 2024
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: XBX -v- THE STATE OF WESTERN AUSTRALIA [2024] WASCA 43
CORAM: MAZZA JA
HALL JA
VANDONGEN JA
HEARD: 6 NOVEMBER 2023
DELIVERED : 26 APRIL 2024
FILE NO/S: CACR 31 of 2023
BETWEEN: XBX
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram: GILLAN DCJ
File Number : IND 1518 of 2022
Catchwords:
Criminal law - Appeal against sentence - Appellant convicted on his pleas of guilty of one count of persistently engaging in sexual conduct with a child under 16 years, seven counts of indecent dealing with a child under 13 years, two counts of sexual penetration of a child under 13 years - Where victim is de facto grandchild of the appellant - Whether sentence of 10 years' imprisonment for count 1 manifestly excessive - Whether total effective sentence infringes first limb of totality principle
Legislation:
Criminal Appeals Act 2004 (WA), s 31(4)
Criminal Code (WA), s 320, s 321, s 321A
Sentencing Act 1995 (WA), s 6(2), s 9AA
Result:
Appeal allowed
Appellant resentenced
Representation:
Counsel:
| Appellant | : | S H King |
| Respondent | : | G N Beggs |
Solicitors:
| Appellant | : | Legal Aid (WA) |
| Respondent | : | Director of Public Prosecutions (WA) |
Case(s) referred to in decision(s):
AJ v The State of Western Australia [2016] WASCA 13
ALI v The State of Western Australia [2021] WASCA 144
Aung v The State of Western Australia [2022] WASCA 175
Cairns v The State of Western Australia [2015] WASCA 198
CDL v The State of Western Australia [2022] WASCA 18
Coulter v The State of Western Australia [2019] WASCA 215
D v The State of Western Australia [2009] WASCA 155
Dickens v The Queen [2004] WASCA 179; (2004) 147 A Crim R 343
EXF v The State of Western Australia [2015] WASCA 118
Kabambi v The State of Western Australia [2019] WASCA 44
KMB v The State of Western Australia [2010] WASCA 212
LJH v The State of Western Australia [2016] WASCA 155; (2016) 261 A Crim R 355
M v The State of Western Australia [2006] WASCA 256
MHE v The State of Western Australia [2019] WASCA 133
MPD v The State of Western Australia [2008] WASCA 57
NE v The State of Western Australia [2021] WASCA 172
NSA v The State of Western Australia [2023] WASCA 53
Pedrochi v Brown [2021] WASC 81
S v The Queen [1989] HCA 66; (1989) 168 CLR 266
The State of Western Australia v AHD [2021] WASCA 13
The State of Western Australia v CGT [2018] WASCA 226
UGN v The State of Western Australia [2021] WASCA 10
MAZZA JA:
This is an appeal against sentence. On 7 March 2023, the appellant was convicted in the District Court on his pleas of guilty of 10 child sex offences, all of which were committed against his de facto granddaughter, who was, at the relevant time, 7 or 8 years old. The offences occurred between 30 April 2021 and 29 January 2022. The appellant was convicted of one count of persistently engaging in sexual conduct with a child under the age of 16 years, contrary to s 321A(4) of the Criminal Code (WA) (the Code) (count 1); seven counts of indecently dealing with a child under the age of 13 years, contrary to s 320(4) of the Code (counts 2, 3, 5, 6, 7, 9 and 10); and two counts of sexual penetration of a child under the age of 13 years, contrary to s 320(2) of the Code (counts 4 and 8).
On 7 March 2023, Gillan DCJ sentenced the appellant to 10 years' imprisonment for count 1, and various other terms of imprisonment on counts 2 ‑ 10. As the sexual conduct the subject of count 1 included the offending the subject of counts 2 ‑ 10, her Honour ordered, as she was obliged to by s 321A(13) of the Code, that the terms of imprisonment she imposed on counts 2 ‑ 10 were to be served concurrently with the sentence that she imposed on count 1. The appellant was made eligible for parole. The sentences were backdated to commence on 8 February 2022.
The details of the individual counts and the sentences that were imposed are set out in the table below.
| Count | Offence (the Code) | Description | Maximum penalty | Sentence imposed |
| 1 | s 321A(4) | Between 1 May 2021 and 29 January 2022 at [a suburb of Perth] and elsewhere [the appellant] persistently engaged in sexual conduct with [the victim], a child under the age of 16 years. | 20 years' imprisonment | 10 years' imprisonment (head sentence) |
| 2 | s 320(4) | On a date unknown between 30 April 2021 and 29 January 2022 at [a suburb of Perth] [the appellant] indecently dealt with [the victim], a child under the age of 13 years, by procuring her to masturbate his penis. | 10 years' imprisonment | 3 years' imprisonment (concurrent) |
| 3 | s 320(4) | On the same date and at the same place as in count (2) [the appellant] indecently dealt with [the victim], a child under the age of 13 years, by procuring her to lick his penis. | 10 years' imprisonment | 3 years' imprisonment (concurrent |
| 4 | s 320(2) | On the same date and at the same place as in count (2) [the appellant] sexually penetrated [the victim], a child under the age of 13 years, by introducing his penis into her mouth. | 20 years' imprisonment | 4 years' imprisonment (concurrent) |
| 5 | s 320(4) | On a further date unknown between 30 April 2021 and 29 January 2022 at [a suburb of Perth] [the appellant] indecently dealt with [the victim], a child under the age of 13 years, by viewing a pornographic video recording in her presence. | 10 years' imprisonment | 3 years' imprisonment (concurrent) |
| 6 | s 320(4) | On a further date unknown between 30 April 2021 and 29 January 2022 at [a suburb of Perth] [the appellant] indecently dealt with [the victim], a child under the age of 13 years, by permitting her to touch her vagina with a sex toy. | 10 years' imprisonment | 3 years' imprisonment (concurrent) |
| 7 | s 320(4) | On a further date unknown between 30 April 2021 and 29 January 2022 at [a suburb of Perth] [the appellant] indecently dealt with [the victim], a child under the age of 13 years, by permitting her to touch her nipples with a sex toy. | 10 years' imprisonment | 2 years' imprisonment (concurrent) |
| 8 | s 320(2) | On a further date unknown between 30 April 2021 and 29 January 2022 at [a suburb of Perth] [the appellant] sexually penetrated [the victim], a child under the age of 13 years, by engaging in cunnilingus. | 20 years' imprisonment | 3 years' imprisonment (concurrent) |
| 9 | s 320(4) | On or about 25 December 2021 at [a suburb of Perth] [the appellant] indecently dealt with [the victim], a child under the age of 13 years, by placing a sex toy near his penis in her presence. | 10 years' imprisonment | 2 years' imprisonment (concurrent) |
| 10 | s 320(4) | On 29 January 2022 at [a suburb of Perth] [the appellant] indecently dealt with [the victim], a child under the age of 13 years, by procuring her to kiss [her cousin]. | 10 years' imprisonment | 6 months' imprisonment (concurrent) |
The appellant appeals to this court against his sentence on two grounds. Ground 1 alleges that the sentence of 10 years' imprisonment for count 1 is manifestly excessive. Ground 2 alleges that the total effective sentence infringes the first limb of the totality principle. The question of leave to appeal on these grounds was referred to the hearing of the appeal. At the hearing of the appeal, counsel for the appellant focused her oral submissions on ground 1, conceding that if ground 1 fails, so too, does ground 2.[1]
[1] See appeal ts 14.
In my opinion, neither ground of appeal has been made out and the appeal must be dismissed. My reasons for these conclusions are set out below.
The facts
The following facts are not in dispute. They primarily derive from the sentencing remarks and the State's amended statement of material facts, the contents of which were accepted on behalf of the appellant in the sentencing proceedings.[2]
[2] ts 21, 30.
In 2017, the victim's mother, TN, commenced a relationship with the appellant's son, SB. In 2019, the victim, TN, SB, and the victim's older brother began living together in a country town. At all relevant times, the appellant and his wife lived at an address in the Perth metropolitan area. The victim and her family would regularly travel to Perth and spend the night at the appellant's house, roughly twice per month. The victim considered the appellant and his wife to be her grandparents.
In relation to count 1, the appellant began sexually offending against the victim shortly after her 7th birthday, with the first occasion taking place at the appellant's house on 1 May 2021. The last occasion occurred during an outing at the Swan River on 29 January 2022. The appellant sexually offended against the victim on numerous occasions throughout this period, including, but not limited to, the specific incidents the subject of counts 2 ‑ 10 on the indictment.
Counts 2, 3 and 4 occurred on a Saturday, sometime between the victim's 7th birthday and 29 January 2022. The victim, the appellant, and four other young children were in the appellant's swimming pool. At the time, the appellant's wife was at home but not in the swimming pool area. The appellant approached the victim in the shallow end of the swimming pool and whispered in her ear words to the effect of, 'One day when we're by ourselves I'm going to lick your pussy really hard'.[3] The appellant told the victim to pull his penis. She placed her hands onto his penis underneath his clothing and moved her hand up and down his penis (count 2). Subsequently, the appellant pointed down into the water in the direction of his genitals, which the victim understood to be a direction for her to go underneath the water and lick his penis. The appellant undid the Velcro on his boardshorts and exposed his penis. The victim then went under the water and licked the appellant's penis multiple times (count 3). There were numerous further instances where the appellant directed the victim to lick his penis, whilst in the pool, by pointing downwards in the same manner that he had earlier. At one point, the victim ducked underwater and sucked the appellant's penis with her mouth (count 4). She found the taste disgusting.
[3] ts 12.
The appellant had a large shed in the rear yard of his property. In the shed, he kept a toolbox, the contents of which included sex toys and pornographic DVDs. On many occasions during the period in which the offending occurred, the appellant spent time alone with the victim in the shed. Sometimes, the victim would join the appellant when he was working in the shed, and sometimes the victim would request that they go there together.
Count 5 occurred on an occasion when the appellant and the victim were alone together in the shed. On this occasion (and, as will be seen, on other occasions), the appellant showed the victim a pornographic DVD that depicted two women performing fellatio on a man, followed by the man performing cunnilingus on the women. He also permitted her to drink from a small bottle of brown liquid, which the victim understood to contain alcohol. Count 5 was, in effect, representative of the many occasions on which the appellant and the victim were alone together in the shed and the appellant showed her the pornographic DVD.
In relation to count 6, each time that the appellant and the victim were alone in the shed, he would provide the victim with one or more of the sex toys that he kept in the toolbox. These included a grey sex toy in the shape of a penis, a smaller black rubber sex toy, and a pink plastic sex toy that contained batteries. The first time that the appellant provided the victim with a sex toy was on an occasion when the victim's mother had gone to the shops, and after the appellant permitted the victim and her brother to leave 'time out'. The appellant gave the victim the pink sex toy, which he then put inside her pants and used to massage her vagina. The victim recalled feeling a sensation as though she needed to urinate.
Count 7 related to another occasion in the shed. The appellant provided the victim with nipple clamps, which she then applied to both her nipples.
Count 8 occurred on another occasion when the appellant and the victim were together in the swimming pool. The appellant ducked underneath the water and repeatedly licked the victim's vagina. The victim pulled the crotch of her bathers to the side to enable the appellant to do this. As will be seen, there were other occasions during the period of the offending that the appellant performed cunnilingus on the victim when they were together in the swimming pool.
Count 9 occurred around Christmas time in 2021. The appellant presented the victim with a vibrating black rubber sex toy in the shape of a penis and told her it was her Christmas present. In the victim's presence, the appellant unzipped his boardshorts and exposed his erect penis. He then took the sex toy and put it inside his shorts, near his penis.
As to count 10, on 29 January 2022, the victim and her family attended a gathering on the Swan River foreshore with the appellant and other members of his family. At one point, the appellant was in the water with the victim and her 6‑year‑old cousin. The appellant whispered into the victim's ear and told her to kiss her cousin. As directed by the appellant, the victim went over to her cousin and kissed her on the lips.
The criminal conduct the subject of count 1 included not just the conduct the subject of counts 2 ‑ 10, but also other conduct not the subject of specific charges. This conduct was described in paragraphs 17, 24 and 34 of the amended statement of material facts.
Paragraph 17 stated:
17.There were numerous further times whilst they [the appellant and the victim] were in the pool that the offender directed the victim to lick his penis, by pointing downwards in the same manner that he had earlier.
In the respondent's written submissions in this court, it was made clear that this allegation by the State was limited to describing the appellant's repeated acts of 'directing' the victim by pointing downwards. That is, it was not alleged that the victim completed the act of licking the appellant's penis 'numerous further times'.[4]
[4] Respondent's answer, par 10(e), fn 14.
Paragraph 24 of the amended statement of material facts stated:
24.[The appellant] would show the victim the same recording each time that they were alone together in the shed.
This statement, when read with the facts in respect of count 5, was to the effect that on each of the many occasions during the period of the offending encompassed in count 1, when the appellant and the victim were together in the shed, he showed her the pornographic DVD depicting two women performing fellatio on a man, followed by the man performing cunnilingus on the women.
Paragraph 34 of the amended statement of material facts stated:
34.There were many other occasions during the period of offending that [the appellant] performed cunnilingus on the victim when they were together in the pool.
By this statement, it was alleged that on many occasions, apart from the single instance captured by count 8, the appellant performed cunnilingus on the victim when they were together in the pool. It is not clear how often the appellant and the victim were together in the pool.
On 7 February 2022, the victim was at home with her mother and SB. In the context of talking about her pet cat, the victim pointed to her groin and said that 'pussy' was another word for vagina. She said that the appellant had told her this and said that it was their secret that she could not tell anyone about, because the appellant would get into trouble if she did. The victim then disclosed some of the offending to her mother.
The following day, the victim participated in a visually‑recorded interview in which she disclosed the offending the subject of counts 2 ‑ 7 and count 10. The victim made further disclosures in respect of counts 8 and 9 in another interview on 16 February 2022.
On 8 February 2022, the appellant was arrested. Police conducted a search of the appellant's home and, in the shed, found two toolboxes. The first toolbox contained pornographic magazines. The second toolbox contained various items including sex toys, one of which was black and matched the description given by the victim about the item the appellant had told her was a Christmas present.
The appellant was conveyed to a police station and interviewed. In the course of an electronically‑recorded interview, the appellant said that he saw the victim and her brother about once a month or once every two months. He said that he would go into the swimming pool with them perhaps two or three times a year. The appellant admitted that he used sex toys on himself around once per month, but claimed that no one else was aware of the sex toys and no one else had physical contact with them. He denied having had any contact with the victim of a sexual nature.
The victim impact statement
The victim's mother read out in open court the victim impact statement that she wrote on behalf of the victim. It is clear from the victim impact statement that the victim has been traumatised by what occurred and by having to keep the conduct a secret from her parents. As a consequence of the offences, the victim and her family have had to remove themselves from family events that are usually held at her grandmother's house. The victim worries that people will find out what has happened to her and is concerned that her friends will not like her, or that people will make fun of her.
The appellant's personal circumstances
At the time of sentencing, the appellant was 59 years of age.
The appellant grew up in a rural area. He no longer has any contact with his family.
He finished school at the end of year 10. Subsequently, as an adult, he was diagnosed as having Attention Deficit Hyperactivity Disorder (ADHD). The appellant has acquired a number of trade‑related certificates and the sentencing judge accepted that the appellant had been hardworking throughout his adult life.
The appellant was, at the time of his sentencing, married and had three adult children. The sentencing judge noted, however, that the appellant was no longer in contact with either his wife or his children.
The appellant has good physical health. A report written by a clinical psychologist, dated 27 February 2023, was tendered to the sentencing judge. The report indicated that the appellant had some 'minor issues' regarding his alcohol use, which had not yet been addressed. In the opinion of the author of the report, the appellant did not fit the DSM‑5 diagnostic criteria for paedophilia. The author stated that the appellant took full responsibility for his offending, expressed contrition for it, and was 'clearly motivated to ensure that it would never happen again'. Based on the author's clinical observations and the results of the STATIC‑99 assessment, the appellant presents as a 'low risk of future offending'.
The appellant has no prior criminal record.
The sentencing remarks
Her Honour commenced her sentencing remarks by stating the requirements of an offence contrary to s 321A of the Code, which constituted count 1 on the indictment. These are set out at [36] below. Her Honour observed, correctly, that for a person to commit an offence contrary to s 321A(4), he or she must persistently engage in sexual conduct with a child under the age of 16 years. By s 321A(2), a person persistently engages in sexual conduct with a child if that person does a sexual act in relation to the child on three or more occasions, each of which is on a different day. Under the definition in s 321A(1), a sexual act is an act that would constitute a prescribed offence. A prescribed offence includes, relevantly to the present case, an offence contrary to s 320(2) or s 320(4) of the Code.
The sentencing judge noted that s 321A(6) permits a person who is charged with an offence of persistently engaging in sexual conduct under subsection (4) to also be charged with a prescribed offence that is alleged to have been committed within the period during which the persistent sexual conduct constituting the offence under subsection (4) occurred. Her Honour then acknowledged the effect of subsection (13), namely that if a person is sentenced to a term of imprisonment for an offence of persistent sexual conduct under subsection (4), then any term of imprisonment for a prescribed offence committed in the same period during which the former offence was committed must be served concurrently.
Her Honour stated that the issue of totality largely fell away due to the operation of the statutory framework set out above.[5]
[5] ts 29 - 30.
Her Honour identified the following aggravating features of the appellant's offending:[6]
(1)The young age of the victim.
(2)The appellant was, in effect, a grandfather to the victim, and he therefore occupied a position of trust in respect of her. As a result, he was left alone with her and other children, and he was 'trusted to do the right thing by her'.
(3)The very significant age disparity between the appellant and the victim.
(4)There was significant perversion of the victim involved in the appellant's acts of showing the victim the pornographic DVDs and the sex toys, and in encouraging her to use them.
(5)There was also significant grooming of the victim. Her Honour noted that the appellant had emotionally manipulated the victim by telling her to keep the offending a secret because, if anyone else found out, then he would get into trouble and his wife (the victim's de facto grandmother) would be 'cross' with him.
(6)The very real potential for the victim to suffer long‑term negative psychological impacts as a result of the offending.
[6] ts 30.
Her Honour referred to the appellant's personal circumstances, including the psychological report described above. It is unnecessary to repeat what I have said about these matters.
Her Honour identified the following mitigating factors:[7]
(1)The appellant was an offender of prior good character. Her Honour said, in effect, that the weight that could be given to this factor was tempered, slightly, by the ongoing nature of the offending.
(2)The appellant entered early pleas of guilty, sparing the victim from having to give evidence and demonstrating his acceptance of responsibility for the offending. Her Honour gave a discount of 25% for the pleas of guilty pursuant to s 9AA of the Sentencing Act 1995 (WA).[8]
(3)The appellant told the psychologist that he was remorseful for what he had done and, somewhat unusually according to her Honour, the appellant had told the psychologist that he admired his son for going to the police. Her Honour did not go so far as to expressly find that the appellant was remorseful.
(4)As to the appellant's risk of reoffending in the future, her Honour noted that the appellant's acceptance of responsibility and commitment to rehabilitation, combined with the psychologist's finding that the appellant did not display an entrenched interest in children, made it 'less likely that [the appellant] will offend again in the future'. Her Honour said that she gave this factor 'limited weight'.
[7] ts 32.
[8] ts 33.
Her Honour noted that, in addition to the offences specified in counts 2 ‑ 10, there were also numerous occasions on which the appellant engaged in unspecified behaviour, as set out in paragraphs 17, 24 and 34 of the amended statement of material facts, which, in effect, added to the seriousness of count 1.[9]
[9] ts 33.
The grounds of appeal and the parties' submissions
Both grounds of appeal allege implied error on the part of the sentencing judge. As stated, the focus is upon the individual sentence imposed on count 1.
In oral submissions on behalf of the appellant, counsel acknowledged the seriousness of the offending encompassed in count 1. Counsel also acknowledged that the sexual acts in count 1 comprised more than merely the specific acts charged in counts 2 ‑ 10 and included the acts described in paragraphs 17, 24 and 34 of the amended statement of material facts.
Despite the seriousness of the offending, it was submitted on behalf of the appellant that the sentence imposed upon him would have been an appropriate sentence for more serious offending, imposed after entering a plea of not guilty and causing the victim and the State to go through the ordeal of trial.[10]
[10] Appeal ts 7.
This submission was primarily based upon an analysis of cases that were said to be comparable. In effect, it was submitted that the offending in a number of the allegedly comparable cases was more serious than in the present case, yet the outcomes in those cases were terms of imprisonment shorter than the outcome in the present case.
As mentioned, it was conceded by counsel on behalf of the appellant that if ground 1 fails, ground 2 also fails.[11]
[11] Appeal ts 14.
On behalf of the respondent, it was submitted that the offending the subject of count 1, having regard to the specific instances charged in counts 2 ‑ 10 and the other conduct the subject of paragraphs 17, 24 and 34 of the amended statement of material facts, reflected a high degree of criminality. Even having regard to the mitigating factors, most significantly the pleas of guilty, the individual sentence imposed on count 1 was not manifestly excessive.
It was submitted by the respondent that the comparable cases cited by the appellant provided only limited assistance. Though the sentence imposed on count 1 was 'firm', when other cases are considered together with all of the relevant circumstances of the offending in the present case, it was not manifestly excessive.
General principles
The general principles applicable to allegations of implied error are very well established and have been stated by this court on many occasions, an example of which is the frequently cited case of Kabambi v The State of Western Australia.[12] It is enough for present purposes to emphasise that implied error arises where the end result is so unreasonable or unjust that the court must conclude that a substantial wrong has occurred. Thus, an appellate court cannot substitute its own opinion for that of the sentencing court merely because the appellate court would have exercised the sentencing discretion differently.
[12] Kabambi v The State of Western Australia [2019] WASCA 44 [21].
The range of sentences imposed in comparable cases does not establish the range of a sound exercise of the sentencing discretion, but it may provide a yardstick or a reference point against which the sentence in question may be assessed. In considering sentences imposed in comparable cases, it is necessary to bear in mind the scope for significant variations in relevant sentencing factors and that there is no single correct sentence. What is important are the unifying principles that sentences imposed in comparable cases reveal and reflect.[13]
[13] UGN v The State of Western Australia [2021] WASCA 10 [40].
It is also well established that for offences of the type committed by the appellant, the primary sentencing considerations are punishment of the offender as well as personal and general deterrence. Consequently, matters personal to an offender will ordinarily carry less weight.[14]
[14] UGN [42].
Section 321A of the Code
The focus of the appeal is upon the sentence imposed for the offence contrary to s 321A of the Code.[15] It is therefore necessary to understand the section's operation.
[15] The current version of s 321A has been in force since 27 April 2008. Its statutory predecessor, also s 321A of the Code, was in force from 1 August 1992. The statutory predecessor created an offence of having a sexual relationship with a child under the age of 16 years. Its terms were broadly similar to the current version of s 321A and carried a maximum penalty of 20 years' imprisonment. However, under subsection (4) of the previous s 321A offence, an accused could not be charged on the same indictment with any other discrete sexual offence alleged to have been committed against the child victim during the period of offending covered by the s 321A change. Accordingly, there was no provision equivalent to the current s 321A(13).
Section 321A states:
321A.Child under 16, persistent sexual conduct with
(1)In this section -
prescribed offence means -
(a)an offence under section 320(2) or (4) or 321(2) or (4) or an attempt to commit such an offence; or
(b)an offence under section 320(3) or 321(3) where the child in fact engages in sexual behaviour;
sexual act means an act that would constitute a prescribed offence.
(2)For the purposes of this section a person persistently engages in sexual conduct with a child if that person does a sexual act in relation to the child on 3 or more occasions each of which is on a different day.
(3)For the purposes of subsection (2) -
(a)the sexual acts need not all constitute the same prescribed offence; and
(b)the sexual acts need not all have occurred in this State as long as at least one of them did.
(4)A person who persistently engages in sexual conduct with a child under the age of 16 years is guilty of a crime and is liable to imprisonment for 20 years.
(5)A charge of an offence under subsection (4) -
(a)must specify the period during which it is alleged that the sexual conduct occurred; and
(b)need not specify the dates, or in any other way particularise the circumstances, of the sexual acts alleged to constitute the sexual conduct.
(6)A person charged with an offence under subsection (4) may also be charged, either in the same or a separate indictment, with a prescribed offence that is alleged to have been committed in the period during which it is alleged that the sexual conduct constituting the offence under subsection (4) occurred.
(7)An indictment containing a charge of an offence under subsection (4) must be signed by the Director of Public Prosecutions or the Deputy Director of Public Prosecutions.
(8)A court cannot order the prosecutor to give a person charged with an offence under subsection (4) particulars of the sexual acts alleged to constitute the offence, despite section 131 of the Criminal Procedure Act 2004.
…
(13)If a person is sentenced, whether on one or more than one indictment, to -
(a)a term of imprisonment for an offence under subsection (4); and
(b)a term of imprisonment for a prescribed offence committed in the period during which the offence under subsection (4) was committed,
the court must not order the terms to be served wholly or partly cumulatively.
I make the following observations:
(1)The offence under s 321A of the Code is created by subsection (4).
(2)Section 321A(2) provides that, for the purposes of s 321A, a person persistently engages in sexual conduct with a child if that person does a 'sexual act' in relation to the child on three or more occasions, each of which is on a different day.
(3)A 'sexual act' is defined in subsection (1) as an act which would constitute a prescribed offence. A prescribed offence includes, relevantly to this appeal, an offence under s 320(2) or (4) of the Code.
(4)Subsection (5) relevantly provides that a charge of an offence under subsection (4) must specify the period during which it is alleged that the sexual conduct occurred, but need not specify the dates nor particularise in any other way the circumstances of the sexual acts alleged to constitute the sexual conduct.
(5)Subsection (6) allows a person charged with an offence under subsection (4) to also be charged with a prescribed offence that is alleged to have been committed in the same period in which the sexual conduct constituting the offence under subsection (4) is alleged to have occurred. Accordingly, in the present case, it was open to the State to charge the appellant with counts 2 ‑ 10, which were alleged to have occurred during the period of offending covered by count 1.
(6)A court cannot order the prosecutor to provide a person charged with an offence under subsection (4) with particulars of the sexual acts alleged to constitute the offence. If a person is sentenced to a term of imprisonment for an offence under subsection (4) and a term of imprisonment for a prescribed offence committed in the period during which the offence under subsection (4) was committed, the court must not order the terms to be served wholly or partly cumulatively. In other words, the terms of imprisonment for the prescribed offence must be served concurrently with the term of imprisonment for the offence under subsection (4).[16]
[16] See NSA v The State of Western Australia [2023] WASCA 53 [45] ‑ [48].
In AJ v The State of Western Australia,[17] Mitchell J, with whom Buss JA and I agreed, observed that the exercise of sentencing an offender for an offence under s 321A differs from that of sentencing for single or even multiple individual offences of sexual misconduct. His Honour said:
The criminal conduct for which the appellant has been convicted and must be punished involves engaging in sexual conduct with each victim on many occasions over a period of years. Conviction of a single indecent dealing offence or a number of individual offences is not comparable. Even when individual offences are charged as representative counts, the offender is only to be sentenced and punished for the counts on the indictment, and the representative nature of the charge prevents the offender finding mitigation on the basis that the offending conduct was isolated and uncharacteristic. By contrast, under s 321A the offender is to be sentenced and punished for the whole course of criminal conduct. The essence of the criminality involved in the offence created by s 321A is the persistent and ongoing nature of the sexual conduct with a child. (footnote omitted)
[17] AJ v The State of Western Australia [2016] WASCA 13 [54].
Ground 1 - disposition
As mentioned, the maximum penalty for count 1 is 20 years' imprisonment.
Consistent with the observations made by Mitchell J in AJ, the essence of the criminality in the offence created by s 321A of the Code is the persistent and ongoing nature of the sexual conduct with the victim. As permitted by s 321A(6), the sexual conduct comprising count 1 in the present case included the specific conduct charged in each of counts 2 ‑ 10 and the uncharged conduct referred to in paragraphs 17, 24 and 34 of the amended statement of material facts, insofar as that conduct constituted prescribed offences within the meaning of s 321A(1) of the Code. The most serious instances of such uncharged conduct were those described in paragraphs 24 and 34. The acts of showing the victim the pornographic DVDs every time she and the appellant were alone in the shed constituted indecent dealing contrary to s 320(4) of the Code, and the acts of cunnilingus constituted sexual penetration contrary to s 320(2) of the Code.
It is impossible to ascertain precisely how many uncharged acts contrary to s 320(2) or s 320(4) were committed by the appellant, but it was not disputed in the court below, nor in this court, that over the nine‑month period the subject of count 1, the victim visited the appellant's house regularly. It may be inferred from the material before the sentencing judge that the appellant showed the victim the pornographic DVDs and performed cunnilingus on her in the pool on multiple occasions in addition to the charged occasions set out in the indictment. It is not possible to be any more precise than this.
The features of the offending identified by the sentencing judge, as set out at [38] above, were significantly aggravating.
The offending continued over a nine‑month period. During that time, the appellant groomed and abused a highly vulnerable 7‑year‑old child, who regarded the appellant as her grandfather. Without any evident concern for her wellbeing, he exposed the victim to pornography; introduced her to sex toys, which he then encouraged her to use; and made her masturbate and fellate him. On multiple occasions, he performed cunnilingus on her. The behaviour exhibited by the appellant was, on occasions, brazen and had the tendency to corrupt the victim. It involved a significant level of perversion. The offending constituted a gross breach of trust by the appellant.
The appellant attempted to silence the victim by instructing her to keep what was happening to her a secret, and by telling her that he would get into trouble if she failed to do so. His conduct has had a significant adverse effect upon the victim, and there remains a distinct possibility that she will carry with her the adverse psychological effects of the appellant's conduct as she matures.
As serious as the appellant's conduct was, it did not approach the 'worst category' of cases of offending contrary to s 321A(4) of the Code. The appellant's conduct did not involve some of the more egregious features seen in other cases. For example, the appellant did not engage in digital or penile penetration of the victim's vagina, nor did he make personal threats of violence or commit acts of violence against the victim. The victim did not suffer any physical injury or contract any sexually‑transmitted disease as a result of the appellant's conduct. None of the incidents were electronically recorded.
The only mitigating factor of any real significance was the appellant's pleas of guilty, for which he was given a discount of 25% under s 9AA of the Sentencing Act, the maximum discount permitted under that section. While the significance of the pleas of guilty must not be overlooked, the pleas of guilty do not reduce the inherent seriousness of the offending behaviour. Even where pleas of guilty are entered, the gravity of the conduct may be such that a significant term of imprisonment must be imposed.[18]
[18] MHE v The State of Western Australia [2019] WASCA 133 [6] ‑ [7].
Having regard to the sentencing considerations referred to at [51] above, the appellant's personal circumstances, while favourable, cannot be accorded much weight.
This brings me to the comparable cases. The comparable cases must be analysed while keeping in mind the following factors:
(1)There is no tariff for offences prescribed by s 321A of the Code (or for sexual offences generally) because of the great variation that is possible in the circumstances of the offending and in the circumstances personal to an offender.[19]
(2)In relation to offences against s 321A, there are only a relatively small number of 'comparable' cases. Such a small number of cases cannot establish the range of sentences customarily imposed nor the appropriate range, particularly when the individual sentences imposed at first instance were not challenged on appeal.[20]
(3)Where leave is refused in an appeal that relies on a ground of manifest excess, on the basis that the appeal has no reasonable prospect of success, the case will have very little utility as a comparable sentence.[21]
(4)A consideration of the comparable cases is only one of the factors to be considered by an appellate court in deciding whether an individual sentence is manifestly excessive. In the end, each case must be decided having regard to its particular facts and circumstances.
[19] AJ [57].
[20] AJ [48].
[21] See Pedrochi v Brown [2021] WASC 81 [43], cited with approval by this court in a number of cases, most recently, Aung v The State of Western Australia [2022] WASCA 175 [45].
The appellant referred to a number of cases that concerned offences against s 321A or its statutory predecessor in respect of a single victim: D v The State of Western Australia;[22] Cairns v The State of Western Australia;[23] KMB v The State of Western Australia;[24] Coulter v The State of Western Australia;[25] and NSA v The State of Western Australia.
[22] D v The State of Western Australia [2009] WASCA 155.
[23] Cairns v The State of Western Australia [2015] WASCA 198.
[24] KMB v The State of Western Australia [2010] WASCA 212.
[25] Coulter v The State of Western Australia [2019] WASCA 215.
The appellant also cited cases that concerned offences against more than one victim: Dickens v The Queen;[26] AJ v The State of Western Australia; and CDL v The State of Western Australia.[27]
[26] Dickens v The Queen [2004] WASCA 179; (2004) 147 A Crim R 343.
[27] CDL v The State of Western Australia [2022] WASCA 18.
The appellant submitted that the cases cited on his behalf fall into two broad categories.[28] The first category, comprising D and Cairns, concerns teenage victims who purportedly 'consented' to the sexual conduct. The second category, comprising Dickens, KMB, AJ, Coulter, CDL, and NSA, concerns more serious offending that occurred over a longer period of time than in the present case. It was submitted on behalf of the appellant that these cases reveal that sexual offending with a similar level of criminality to the present case, but spanning a longer duration, has typically resulted in sentences in the region of 3 years' to 5 years' imprisonment, and that cases involving substantially greater criminality than that observed in the present case have resulted in similar sentences to that imposed in the present case.
[28] Appellant's case, par 25.
It was submitted that the present case falls between the two broad categories identified by the appellant. It was acknowledged by the appellant that there is no directly comparable case.
As to the first broad category of cases, D and Cairns are not helpful comparators. Each of these cases concerned teenage victims, significantly older than the victim in the present case, who 'consented' to the sexual conduct. The criminality in these cases was substantially less than in the present case. In Cairns, leave to appeal was refused in respect of a ground of appeal that alleged that a sentence of 5 years' imprisonment was manifestly excessive. In D, a sentence of 5 years' imprisonment in respect of the count of offending contrary to s 321A was held to be manifestly excessive. A sentence of 3 years 6 months' imprisonment was imposed for the s 321A offence on appeal. D and Cairns can be put to one side for present purposes.
As to the second broad category of cases, CDL is an inapt comparator. This case concerned offences against three child complainants, all of whom were very young. The appellant in CDL was sentenced after trial to individual sentences of 4 years, 4 years, and 3 years' imprisonment for three separate offences against s 321A, with one count committed against each complainant. The appellant's sexual conduct in relation to the three complainants did not include any acts of sexual penetration. Each of the individual sentences were substantially reduced by the sentencing judge for totality. None of the three individual sentences were challenged on appeal. This court refused leave to appeal on all grounds, including two grounds which, in substance, alleged that a total effective sentence of 12 years 6 months' imprisonment infringed the first limb of the totality principle.
The appellant in AJ was convicted on his pleas of guilty of two counts of offending against s 321A, in respect of his daughters, A and M. The offending occurred over a much longer period than in the present case, while A was aged between 9 and 15 years, and M was aged between 7 and 11 years old. The appellant regularly engaged in non‑penetrative sexual acts with the victims over a period of seven years and six months. He was sentenced to 5 years' imprisonment in respect of his offending against A and 4 years' imprisonment in respect of that against M, to be served cumulatively. The grounds of appeal included allegations that each of the individual sentences were manifestly excessive and that the total effective sentence of 9 years' imprisonment infringed the first limb of the totality principle. Leave to appeal was refused on each of the grounds concerning manifest excess, and the appeal was dismissed. Mitchell J described the individual sentences as 'well within the range of proper exercise of the sentencing discretion'.[29]
[29] AJ [67].
The appellant in NSA was convicted on his pleas of guilty of four offences; three of which were of a sexual nature and were in respect of his two children. One of the charges was an offence contrary to s 321A of the Code against his daughter, S (count 1). Count 1 occurred over a period of approximately five years, from the time that S was aged between 11 or 12, to the time she was 14 or 15 years old. Count 1 comprised numerous incidents in which the appellant placed wax strips on S's genital area to remove her pubic hair, checked her genital area and buttocks for 'worms', and touched her breasts under the guise of checking for 'lumps'. Count 1 did not involve any act of sexual penetration. An additional offence alleged that the appellant had penetrated S's vagina with his finger, while inserting a tampon (count 2). For count 1, the appellant was sentenced to 5 years' imprisonment. Having regard to all four offences, the sentencing judge imposed a total effective sentence of 7 years' imprisonment. The individual sentences, including the sentence on count 1, were not challenged on appeal. The appeal was allowed because the sentencing judge had ordered that the sentence on count 2 be served cumulatively, and not concurrently, with the sentence on count 1. The cumulacy order was contrary to s 321A(13) of the Code, because count 2 was alleged to have occurred within the period of offending the subject of count 1. On resentencing the appellant, this court again imposed a sentence of 5 years' imprisonment on count 1, and in doing so, had regard to the fact that the State did not allege at first instance that the offending the subject of count 2 formed part of count 1. Accordingly, the sexual conduct in count 2 was not considered in the court's resentencing on count 1.
In Dickens, a case decided in 2004, the appellant was charged with two counts under s 321A as it then was. Count 1 involved offending against his stepdaughter over a period of almost five years, which commenced when she was 10 years of age. The offending conduct included regular sexual intercourse, which resulted in the victim becoming pregnant at the age of 13 and having an abortion. Even after the termination of the pregnancy, the appellant continued engaging in sexual intercourse with the victim. Count 2 related to conduct which also included acts of sexual intercourse with a 15‑year‑old girl, who occasionally stayed in the same house as the appellant. This offending occurred over a seven‑month period. The appellant was sentenced to 5 years 4 months' imprisonment in respect of the offending against his stepdaughter, and 2 years 8 months' imprisonment in respect of the offending against the 15‑year‑old victim. The appellant in Dickens did not challenge the individual sentences, but a ground of appeal alleging that the accumulation of the sentences infringed the first limb of the totality principle was upheld by this court. The appellant was resentenced to 6 years 8 months' imprisonment.
The facts of the offending in KMB were described in Coulter[30] in these terms:
[T]he offender's sexual relationship with the victim began when she was 7 years and 6 months old, and continued until she was 18. The three occasions relied upon by the prosecution as constituting the count were representative of ongoing and serious sexual acts committed against the victim. The three occasions involved an instance of, first, the offender penetrating the victim's vagina with his penis when she was about 8 years old, the second involved a penetration of the child's vagina with the offender's penis, culminating in ejaculation, and the third involved an act of cunnilingus by the offender, followed by digital penetration of the victim's vagina and an act of penile penetration of her vagina, again culminating in ejaculation.
[30] Coulter [47].
The appellant in KMB was sentenced to 10 years 6 months' imprisonment for an offence contrary to s 321A. He was sentenced to a total effective sentence of 14 years 6 months' imprisonment. A ground of appeal that challenged the sentence imposed in respect of the s 321A offence on the basis that it was manifestly excessive was dismissed. A ground of appeal against the total effective sentence was also dismissed.
In Coulter, the appellant was convicted on his pleas of guilty of 18 sexual offences against a female child, A. The offences were contained in two indictments. Indictment 2002 of 2018 charged the appellant with one offence against s 321A of the Code. The 17 other offences were contained in indictment 673 of 2018, which charged the appellant as well as A's mother, S, and S's partner referred to as W.
The offence in indictment 2002 of 2018 occurred within a period of just over one year, when A was aged between 6 years and 7 years old. The offending occurred on three separate occasions at the appellant's house. On the first occasion, a stupefying substance was administered to A, who was then shown a pornographic video involving adults and children. After various sex acts were performed by the appellant, A's mother, and another adult male in the presence of A, A then performed an act of fellatio on the appellant and the other male. This was filmed by A's mother. After being given some snacks, the appellant and the other male 'tickled' A's vagina with what appeared to have been a vibrator. The appellant then penetrated A's mother with the vibrator. Later, following a shower, the appellant introduced his penis into A's mouth.
The second occasion of offending against A occurred in the presence of A's mother. What occurred was similar to the first occasion. A was provided with another stupefying substance and A's mother performed an act of fellatio on the appellant. She told A to then behave in the same way, which A did. After snacks, A then performed another act of fellatio on the appellant, after which the appellant 'tickled' A's vagina with a 'stick'.
The third occasion took place on A's 7th birthday. As with previous occasions, A was provided with a stupefying substance, followed by the watching of a pornographic video. Various adults then engaged in a series of sex acts with each other in A's presence. At one point, W guided A to put her fist into his anus and then the anuses of both the appellant and another male. A then performed fellatio on the three of them. The incident was filmed in part by A's mother.
At first instance, the appellant in Coulter was sentenced to 13 years' imprisonment for the offence in indictment 2002 of 2018, with an additional 8 years' imprisonment for the offences contained in indictment 673 of 2018.
This court upheld a ground of appeal that alleged that the sentencing judge erred in characterising the offence in indictment 2002 of 2018 as being amongst the worst of its kind. Having upheld this ground, it was unnecessary to decide the other grounds, which alleged that the individual sentence for the offence in indictment 2002 of 2018 was manifestly excessive and that the total effective sentence infringed the first limb of the totality principle. On resentencing the appellant in Coulter, this court imposed a sentence of 9 years' imprisonment on the charge the subject of indictment 2002 of 2018. The appellant was resentenced to a new total effective sentence of 17 years' imprisonment.
Other cases were cited by the parties. These cases involved sexual offending against young children that did not include offences against s 321A. It was said that an examination of these cases showed a range in the vicinity of between 6 years' imprisonment to just under 9 years' imprisonment for cases involving comparable or somewhat higher criminality, and that the sentence imposed in the present case is inconsistent with this range. Particular emphasis was given to the observation of Quinlan CJ and Mitchell JA in The State of Western Australia v AHD,[31] that total effective sentences in excess of 10 years' imprisonment are relatively uncommon in cases involving a single victim, in circumstances where the offender pleaded guilty at an early stage of the proceedings.
[31] The State of Western Australia v AHD [2021] WASCA 13 [4].
The cases in which individual sentences for offences contrary to s 321A of the Code are examined are few in number and are diverse as to their factual circumstances. As the appellant rightly acknowledged, the present case is not directly comparable to any of them. Accordingly, the exercise of comparison poses some difficulty.
The outcomes in D, Cairns, and CDL are, for the reasons I have explained, unhelpful to the appellant. So, too, is the outcome in AJ. The relevant grounds of appeal in that case, which challenged the individual sentences for the two s 321A offences as each being manifestly excessive, was so lacking in merit that leave to appeal was refused in respect of it. The individual sentence of 5 years' imprisonment for the s 321A offence in NSA was not challenged as manifestly excessive. In any event, without in any way seeking to downplay the offending the subject of the s 321A count in that case, the offending conduct did not involve an act of sexual penetration. In my opinion, the objective criminality encompassed in the s 321A offence in the present case was greater than that in NSA.
However, the objective criminality of the s 321A offences in Dickens (in respect of count 1 against the offender's stepdaughter), KMB, and Coulter was, in my view, greater than that in the present case. Of these cases, the individual sentence in KMB is the only one longer than the individual sentence imposed on the appellant in the present case, and then only by 6 months. Further, the individual sentence in KMB was imposed after trial, while the sentence in the present case was imposed after the entry of an early plea of guilty, which attracted a discount of 25% under s 9AA of the Sentencing Act.
Then there are the cases involving multiple terms of imprisonment imposed for discrete sexual offences against children, other than under s 321A of the Code. As observed by Quinlan CJ and Mitchell JA in AHD,[32] cases where the total effective sentence exceeds 10 years' imprisonment are relatively uncommon in cases involving a single victim, where the offender has pleaded guilty at an early stage. Of course, in the present case, the sentence in question is a term of precisely 10 years' imprisonment.
[32] AHD [4].
Some of the cases referred to by the respondent in its written submissions include M v The State of Western Australia;[33] MPD v The State of Western Australia;[34] EXF v The State of Western Australia;[35] LJH v The State of Western Australia;[36] and NE v The State of Western Australia.[37] In NE, the total effective sentence was less than 10 years but would have been more than 10 years' imprisonment if the offender did not have a debilitating physical condition.
[33] M v The State of Western Australia [2006] WASCA 256.
[34] MPD v The State of Western Australia [2008] WASCA 57.
[35] EXF v The State of Western Australia [2015] WASCA 118.
[36] LJH v The State of Western Australia [2016] WASCA 155; (2016) 261 A Crim R 355.
[37] NE v The State of Western Australia [2021] WASCA 172.
After evaluating all relevant facts and circumstances, I have come to the view that the sentence imposed upon the appellant was, as the respondent acknowledged, 'firm'. However, when all of the relevant circumstances are taken into account, I have not been persuaded that the sentence of 10 years' imprisonment on count 1 was unreasonable or plainly unjust having regard to the serious nature of the offending referred to earlier in these reasons. While I would grant leave to appeal in respect of ground 1, it has not been made out. As ground 1 has not been made out, then, in accordance with the circumstances of this case and consistently with the concession made by the appellant in oral submissions, ground 2, which adds nothing to ground 1, also fails. The appeal must be dismissed.
HALL JA:
The facts and legal principles relevant to this appeal have been set out by Mazza JA and there is no need for me to repeat them. I can state my own reasons briefly.
The appellant was convicted of one count of persistently engaging in sexual conduct with a child under the age of 16 years between 1 May 2021 and 29 January 2022 contrary to s 321A(4) of the Criminal Code (WA). He was also convicted of two counts of sexual penetration of a child under the age of 13 years contrary to s 320(2) and seven counts of indecent dealing with a child under the age of 13 years contrary to s 320(4) of the Code. Those other offences all occurred within the period specified in the first count.[38]
[38] Seven of the counts allege that the offence occurred on a date unknown between 30 April 2021 and 29 January 2022, so there is a difference of one day with the period specified in count 1, but it was not contended that this was material.
The offence of persistent sexual conduct now contained in s 321A has its origin in a legislative response to the decision of the High Court in S v The Queen.[39] The offence is intended to deal with cases where a child alleges that sexual offences have been perpetrated against them on many occasions but is unable to say exactly how many such offences occurred or exactly what occurred on any particular occasion.[40]
[39] S v The Queen [1989] HCA 66; (1989) 168 CLR 266. The original offence of maintaining a sexual relationship with a child was introduced in 1992 and replaced with the present offence in 2008.
[40] Western Australia, Parliamentary Debates, Legislative Council, 6 May 1992, 1803 - 1804 (The Honourable J M Berinson, Attorney General).
The inability to particularise individual acts would be a practical impediment to charges for other sexual offences. Section 321A avoids this difficulty by providing that a person is guilty of persistently engaging in sexual conduct with a child under the age of 16 years if the person does a sexual act in relation to a child on three or more occasions, each of which is on a different day. Whilst the charge must specify the period during which the conduct occurred, it is not necessary to specify the dates, or in any other way particularise the circumstances, of the sexual acts alleged to constitute the sexual conduct.[41]
[41] Criminal Code, s 321A(5).
Charges under s 321A are not, however, limited to those circumstances where particularisation of specific individual sexual offences is impossible. There was formerly a prohibition on charging prescribed sexual offences in the same period specified in a s 321A offence charge, but that prohibition has since been removed.[42] Section 321A(6) now expressly permits a person to be charged with both a s 321A offence and with charges for prescribed offences against the same child in the same period. Prescribed offences are offences under s 320(2) or s 320(4), s 321(2) or s 321(4) or an attempt to commit such an offence, or s 320(3) or s 321(3) where the child in fact engages in the sexual behaviour. Thus, it is now possible, as here, to charge both a s 321A offence and any number of prescribed sexual offences relating to the same child within the same relevant period.[43]
[42] See ALI v The State of Western Australia [2021] WASCA 144.
[43] Assuming that the offences occurred after the change to permit this to happen.
There may be practical reasons why the prosecution may wish to present an indictment containing both a s 321A charge and charges for prescribed offences. For example, a prosecutor may do so to guard against the possibility that the complainant proves unable to provide particulars of each sexual offence when giving evidence at the trial, or to guard against the possibility that the jury is not satisfied to the requisite standard of the prescribed offences whilst being satisfied that persistent sexual conduct occurred. There is also an advantage in that where four or more sexual acts are alleged the jury can convict on a s 321A charge if they are satisfied that the accused engaged in persistent sexual conduct in the specified period, though they do not have to agree as to which sexual acts constitute that conduct.[44] There may also be cases where the complainant can only recall some specific events and a s 321A charge would ensure that the whole of the relevant conduct is captured by a charge. Whatever the rationale, this charging practice has consequences for sentencing in the event of conviction.
[44] Criminal Code, s 321A(11).
If an offender is convicted of both a s 321A offence and prescribed offences against the same child occurring within the period specified in the s 321A charge, the sentencing judge is required by s 321A(13) to order that the sentences for the prescribed offences are not served wholly or partly cumulatively on the sentence imposed for the s 321A count. The sentences for the prescribed offences in these circumstances must be ordered to be served concurrently. That will be so regardless of how many such prescribed offences there are and regardless of what the maximum penalties for those offences are. This means that the maximum penalty for the s 321A offence will be, in effect, the maximum penalty that can be imposed for the entirety of the sexual conduct perpetrated against the child victim in the period specified.
The obvious rationale for this requirement is to avoid double punishment. The assumption is that where persistent sexual conduct is alleged it will encompass all prescribed offences committed in that period, including any that are made the subject of separate charges. However, where the prescribed offences are very numerous or of a particularly serious nature the limitation on the maximum penalty that can be imposed may produce unintended effects.
Where an offender is charged and convicted of both a s 321A offence and prescribed offences, the sentence imposed will necessarily take into account that the maximum penalty for the whole of the conduct is 20 years' imprisonment. If the same offender was charged and convicted of only the prescribed offences there would be a need to ensure that the total sentence was proportionate to the overall offending, but the total sentence would not be constrained by any overarching maximum penalty. This creates a risk that offenders who commit a series of discrete sexual offences against a child may receive a different sentence depending on whether they are also charged with a s 321A offence.
The prosecutorial decision to prefer a s 321A charge, and the effect of the law in that regard, could confer an advantage on some offenders. This would run the risk of creating an appearance of unfairness and undermining public confidence in the criminal justice system. Where a s 321A offence is included in an indictment the effect will be to limit the comparable cases to a relatively confined group and thereby not take into account sentencing standards established in the broader class of child sex offences. This would create within the class of child sex offenders a subclass of those who have been charged with a s 321A offence. The achievement of consistency for those charged with a s 321A offence may come at the cost of creating inconsistency with other offenders who have committed broadly similar conduct but not been charged with such an offence.
Having said that, I appreciate that in considering whether a sentence for an individual offence is manifestly excessive, the orthodox approach is to consider the seriousness of that offence, the maximum penalty provided by law for that offence, the personal circumstances of the appellant and the guidance afforded by comparable cases. Comparable cases in this regard are cases where sentences have been imposed for the same offence. I do not suggest that the matters I have referred to detract from that approach. They do, however, highlight the importance of ensuring that implied error in a case like the present is clearly established. Inconsistency with sentences in the broader class of child sex offences should be avoided if possible.
As regards ground 1, the appellant contends that the sentence of 10 years' imprisonment imposed on count 1 is manifestly excessive. The 20‑year maximum for s 321A sets a ceiling that must be reserved for cases falling into the worst possible category. However, the range of conduct that is encompassed by s 321A is extraordinarily wide. It relates to a course of conduct that may be short or long, may involve three sexual acts or a much larger number and the sexual acts may be varying in their degree of severity and their impact on the victim. It cannot be assumed that there is a neat or evenly spaced gradation of seriousness such that a particular case to be readily placed at a definite point on that continuum. However, there must be room within that scale to reflect the relativities between cases.
As to the seriousness of this offence, the conduct occurred over a nine-month period, occurred in a familial context, involved the abuse of a position of trust, involved repeated sexual acts on several distinct occasions, the age discrepancy was large, the child was vulnerable having regard to her age and the familial relationship with the appellant, the appellant coerced the child into not revealing the abuse and there was a degree of perversion in the offending. The sexual conduct was not confined to the prescribed offences charged in the other counts; it also included other similar acts. In assessing the seriousness of this offence, I would not view the offending as necessarily less serious because it did not include penile or digital penetration. On the other hand, the offending did not involve the use of violence or threats or the infliction of physical injuries.
The personal circumstances of the appellant were unremarkable. In any event, it has been said on many occasions that personal factors, whilst not irrelevant, cannot be accorded great weight in respect of offences of this nature. The only mitigating factor of real significance was the plea of guilty. That was an important factor, having been assessed as worthy of the maximum discount of 25%. That factor should be reflected in the sentence imposed on count 1 and in the total effective sentence. If the value of a plea of guilty is not readily discernible there will be no incentive to others to take that option.
As regards comparable cases, it has been said on many occasions that the purpose of comparable cases is to provide a yardstick against which a sentence can be measured. Comparable cases provide guidance in seeking to achieve consistency; they do not set limits on sentencing discretion. Furthermore, comparable cases are but one factor for consideration. Where there are comparatively few cases in respect of a particular offence, the guidance afforded may be limited. Nonetheless, it is important to consider comparable cases because inconsistency in sentencing outcomes is unfair.
Many of the cases referred to by the appellant are not useful comparators. Dickens was a case decided almost 20 years ago, at a time when sentencing standards did not reflect the current appreciation of the seriousness of child sex offending. CDL and AJ are cases involving multiple victims, where the individual sentences were likely affected by totality considerations. Comparing either the individual sentences or the total effective sentences imposed in those cases with the sentence imposed on count one is problematic. In my view, the only cases that are relevantly comparable are KMB, Coulter and NSA. The outcomes in those cases support the appellant's contention that the sentence imposed on count 1 was manifestly excessive. However, caution must be exercised before using such a small sample to draw a conclusion that the sentence on count 1 was erroneous.
Returning to the considerations I raised regarding the undesirability of there being a different sentencing standard for s 321A offences than that applying more generally to child sex offences, it may be useful to consider cases where there was a similar number and range of prescribed offences but no s 321A offence.
In NE v The State of Western Australia,[45] the offender was convicted of six counts of indecent dealing with a child under the age of 13, five counts of sexual penetration of child under the age of 13 and one count of procuring a child to do an indecent act. The victim in that case was the offender's de facto daughter. The offender pleaded guilty and received a 20% discount. An appeal against a total effective sentence of 8 years 6 months' imprisonment was dismissed.
[45] NE v The State of Western Australia [2021] WASCA 172.
In UGN v The State of Western Australia,[46] the offender was convicted after trial of six counts of indecent dealing with a child under the age of 13 and two counts of sexual penetration of a child under the age of 13. The offender was a friend of the victim's mother. The offending occurred over a five‑year period, when the victim was aged between 7 and 12. The offender received a total effective sentence of 8 years 6 months' imprisonment. An appeal against that sentence was dismissed.
[46] UGN v The State of Western Australia [2021] WASCA 10.
In The State of Western Australia v CGT,[47] the offender was convicted after trial of seven counts of sexual penetration of a child under the age of 13. The victim was the offender's biological grandchild. A State appeal against the original sentence of 6 years' imprisonment was allowed and the offender was resentenced to a total effective sentence of 8 years and 9 months' imprisonment.
[47] The State of Western Australia v CGT [2018] WASCA 226.
In MHE v The State of Western Australia,[48] a number of other cases were reviewed. That review shows that total effective sentences of in excess of 10 years' imprisonment where the offender has pleaded guilty at an early stage are relatively uncommon in cases involving a single victim.[49]
[48] MHE v The State of Western Australia [2019] WASCA 133 [82] - [92].
[49] The State of Western Australia v AHD [2021] WASCA 13 [4].
These cases suggest that a total sentence of 10 years' imprisonment for the prescribed offences in this case would be unusually high. In saying that, I acknowledge that count 1 included some additional sexual conduct that was not the subject of separate charges. However, that additional conduct was of the same nature as some of the existing charges and would no doubt be taken into account as context even if a s 321A charge was not present. The additional conduct was not so significant as to render the comparison exercise futile.
The cases I have referred to do not suggest the sentence on count 1, whilst being inconsistent with other cases dealing with s 321A, is otherwise consistent with sentences imposed for similar offending more broadly. Indeed, they suggest to the contrary, particularly when the appellant's guilty pleas are taken into account. The concerns regarding the possible advantage conferred on an offender charged with a s 321A offence are not manifested in this case. From either the narrow perspective of other s 321A cases or the broader perspective of child sex offending more generally, the appellant's sentence cannot be reconciled with the sentences imposed in other similar cases.
As has been commented on in other cases, comparing the relative seriousness of different cases involving sexual offending is an invidious but necessary task. Whilst not seeking to detract from the seriousness of the offending of the appellant, the conclusion cannot be avoided that the sentence of 10 years' imprisonment was an unusually high one. It was not a sentence that properly reflected the fact that the appellant pleaded guilty at the first reasonable opportunity.
In my view, the sentence imposed on count 1 was unreasonable and plainly unjust. The appeal should be allowed and the appellant resentenced. I agree with the resentencing proposed by Vandongen JA and with the orders set out in his Honour's reasons.
VANDONGEN JA:
I have had the considerable benefit of having read a draft of the reasons of Mazza JA. His Honour has concluded that the sentence of 10 years' imprisonment that was imposed on the appellant for the offence of persistently engaging in sexual conduct with the complainant is not manifestly excessive. For the following reasons, I have reached a different conclusion.
The unchallenged factual basis on which the appellant was sentenced, the appellant's personal circumstances, and the procedural background to this appeal have all been comprehensively summarised by Mazza JA in his reasons, which I gratefully adopt. His Honour has also referred to the well established general principles that are to be applied in the context of the grounds of appeal relied on by the appellant.
I wish to make my own observations about the offence created by s 321A(4) of the Criminal Code (WA) (Code), before setting out my reasons for reaching the view that the sentence of 10 years' imprisonment imposed for count 1 was manifestly excessive.
Section 321A
As Mazza JA has observed, it is an offence under s 321A(4) of the Code for a person to persistently engage in sexual conduct with a child under the age of 16 years. Pursuant to s 321A(2) of the Code, a person 'persistently engages in sexual conduct with a child' if they do a 'sexual act in relation to the child on 3 or more occasions each of which is on a different day'. Relevantly to the facts of this case, a 'sexual act' is an act that would constitute an offence of sexually penetrating (s 320(2)), or indecently dealing with (s 320(4)), a child under the age of 13 years.
Pursuant to s 321A(5) of the Code, a charge of an offence contrary to s 321A(4) must specify the period within which it is alleged that the 'sexual conduct' occurred, however, no further particularisation is required. Section 321A(8) also provides that the court cannot order the prosecution to provide particulars of an offence contrary to s 321A(4).
In accordance with s 321A(6) of the Code, a person may be charged, whether on the same or on a separate indictment, with an offence contrary to s 321A(4) as well as any 'prescribed offences' that are alleged to have been committed during the same period. However, pursuant to s 321A(13), when a person is sentenced to a term of imprisonment for an offence contrary to s 321A(4) and is also sentenced to a term of imprisonment for a 'prescribed offence' committed in the same period as the s 321A(4) offence, the court is prohibited from making an order that the terms of imprisonment be served wholly or partly cumulatively.
It follows that a person convicted of an offence contrary to s 321A(4) of the Code will fall to be sentenced on the basis that they did a 'sexual act' that would otherwise have constituted an offence contrary to s 320(2) or s 320(4) of the Code on at least three, and perhaps on many more, occasions, depending on the facts found by the sentencing judge.
As this court said in AJ v The State of Western Australia,[50] a person who commits an offence contrary to s 321A of the Code 'is to be sentenced and punished for the whole course of criminal conduct' that occurred during the period that s 321A(5)(a) requires be specified by the charge. It is important to appreciate, however, that this does not mean that an appropriate sentence for the purpose of an offence contrary to s 321A falls to be determined by reference to any individual or total effective sentences that might otherwise have been imposed had the various 'sexual acts' been the subject of individual charges. Pursuant to s 6(2)(a) of the Sentencing Act 1995 (WA), when sentencing a person for an offence contrary to s 321A(4), it is the maximum penalty of 20 years' imprisonment prescribed for that offence that is to be taken into account in determining the seriousness of a particular offence, and not the maximum penalties provided for any relevant 'prescribed offences' that are alleged to have been committed during the same period.
[50] AJ v The State of Western Australia [2016] WASCA 13 [54].
Although the sum total of all of the maximum penalties that would otherwise apply when an offender is convicted of three or more 'prescribed offences' would almost always exceed the statutory maximum penalty for an offence of persistent sexual conduct under s 321A(4) of the Code,[51] Parliament has, in effect, determined that if those prescribed offences were committed during the period of an offence contrary to s 321A, whether that offence is charged in the same or in a different indictment, the maximum total effective sentence that can be imposed for all of the offences is limited to 20 years' imprisonment.
[51] With one exception, the same situation prevails when a person does sexual acts that would constitute offences under s 321(2) or s 321(4) of the Code. The exception is for an offence under s 321(4), where the offender is under the age of 18 years at the time, and where the victim is not under their care, supervision, or authority (s 321(8)(c)).
As is made clear in the reasons of Mazza JA, the indictment in this case contained 10 counts. The appellant was charged in count 1 with an offence of engaging in persistent sexual conduct with a child during the period 1 May 2021 to 29 January 2022. In counts 2 ‑ 10 the appellant was charged with a series of sexual offences contrary to both s 320(2) and s 320(4) of the Code, which were alleged to have been committed against the same child during the period 30 April 2021 and 29 January 2022. There is nothing in the materials before this court that explains why the prosecution charged the appellant in this way. In circumstances in which the victim alleged that the appellant offended against her on numerous occasions, including but not limited to the specific incidents the subject of counts 2 ‑ 10 on the indictment, it seems reasonable to infer that a decision was made that the indictment should properly reflect the full nature and extent of the alleged criminal conduct in order to ensure that an appropriate sentence was imposed for all of that conduct. Such an approach is generally consistent with what is set out in the Office of the Director of Public Prosecutions (WA) Statement of Prosecution Policy and Guidelines 2022 at [55]:
The indictment should reflect the nature and extent of the alleged criminal conduct. In the ordinary course the charge or charges laid or proceeded with will be the most serious disclosed by the evidence. Nevertheless, when account is taken of such matters as the strength of the available evidence, the probable lines of defence to a particular charge and the appropriate sentence for the conduct disclosed by the evidence, it may be appropriate to lay or proceed with a charge which is not the most serious revealed by the evidence.
However, the practical effect of the decision that was made in this case to proceed with the charges in the indictment in this way was to introduce a limit of 20 years' imprisonment on the total effective sentence that could have been imposed. In some, and perhaps many, cases, a similar decision may actually undermine an objective of adequately reflecting the full nature and extent of alleged criminal conduct.
Ground 1
It is well established that in order to determine whether a sentence for an individual offence is manifestly excessive, the offence should be viewed in light of the maximum sentence prescribed by law for the crime, the standards of sentencing customarily imposed with respect to it, the place that the criminal conduct occupies on the scale of seriousness of crimes of that type, and the offender's personal circumstances.
Maximum penalty
As I have already noted, the maximum penalty for an offence contrary to s 321A of the Code is 20 years' imprisonment.
Seriousness of offending
It is necessary to place the appellant's conduct within a scale of severity in the context of an offence contrary to s 321A of the Code.
There is no question that the appellant's criminal conduct was extremely serious. The appellant was 58 years of age when he committed several sexual offences against his de facto granddaughter, who was just 7 years of age when the offending began. The offences the subject of counts 2 ‑ 10 involved seven separate occasions on which the appellant was alleged to have committed offences of indecent dealing and sexual penetration. The appellant sexually penetrated the victim on two specific occasions by introducing his penis into her mouth and by engaging in cunnilingus. The seven offences of indecent dealing involved various acts ranging from procuring the complainant to kiss her 6‑year‑old cousin to procuring her to touch and lick his penis. On three occasions, the appellant indecently dealt with the victim using sex toys, and on one occasion he showed her a pornographic video depicting adults engaging in oral sex while she was permitted to drink what was suspected to have been alcohol.
While it is not possible to know precisely on how many other occasions the appellant offended against the victim, the charges on the indictment were not isolated incidents in which the appellant sexually offended against her. Based on the facts accepted by the sentencing judge, the appellant sexually offended against the victim on numerous occasions. The unchallenged facts relied on by the prosecution at sentencing also asserted that the victim and her family would travel to Perth from the country town in which they were living at the time and spend the night with the appellant and his wife approximately twice a month. Those facts also asserted that the appellant told police, in his record of interview, that he would see the victim once a month or once every two months. However, the facts did not make it clear whether the appellant offended against the victim on every occasion that she visited his house.
On several occasions, the appellant brazenly offended against the victim in the presence or near-presence of other people, including other young children, his wife, and other members of his family. The offending was aggravated by the victim's very young age at the time of the offending, the significant breach of trust that was reposed in the appellant on account of his relationship with the victim and her family, and the degree of perversion that was involved in the offending, including by showing the victim adult pornography and by introducing her to sex toys. The appellant also tried to inveigle the victim to continue to engage in sexual acts with him by telling her that it was their secret and that she could not tell anyone what had occurred otherwise he would get into trouble.
However, as serious as the appellant's offending undoubtably was, the fact is that he was not sentenced on the basis that he had ever penetrated the victim's vagina digitally or with his penis. As has been explained, the most serious sexual acts that the appellant engaged in were the 'numerous' acts of cunnilingus, and the act of penetrating the victim's mouth with his penis all of which took place in the appellant's pool. As has been explained, the appellant also engaged in other indecent and depraved offending against the victim on many other occasions.
It is very clear from the victim impact statement, prepared by the victim's mother on the victim's behalf, that the appellant's offending has had, and is likely to have in the future, a significantly negative impact on the victim. Her experiences have led to her engaging in inappropriate sexual behaviours, as well as experiencing confusion and anxiety. The victim enjoyed visiting her grandmother, however, the appellant's actions have meant that her parents have now minimised her visiting her grandmother's home for fear of reliving trauma.
Appellant's personal circumstances
The appellant's personal circumstances have been summarised by Mazza JA at [29] ‑ [34]. Those personal circumstances are unremarkable and are not significantly mitigating. The appellant's lack of any prior criminal record affords him limited mitigation as he offended against the victim on numerous occasions and over a period of about nine months. In any event, it is well established that the personal circumstances of people convicted of sexual offences against children are given less weight because of the need to give effect to personal and general deterrence.
Mitigating factors
The mitigating factors are summarised by Mazza JA at [40]. I agree that the only mitigating factor of significance is the appellant's early plea of guilty, for which the sentencing judge afforded a discount of 25%.
Comparable cases
Bearing in mind the various matters that Mazza JA has referred to at [65], it is necessary to have regard to any comparable cases that have been decided on appeal in determining whether the sentence that was imposed for count 1 was manifestly excessive.
I have considered all of the cases referred to by the parties in which sentences imposed for offences contrary to s 321A of the Code, and its predecessor, have been examined. I agree with Mazza JA that the decisions of D v The State of Western Australia[52] and Cairns v The State of Western Australia[53] are not relevantly comparable to the present case. Each of those cases involved offending against much older children. In D, the appellant, who was a schoolteacher, was convicted of sexual offences committed against two students who were both over 15 years of age. In Cairns, the complainant was aged between 14 and 15 years at the time of the offending. In both cases, the complainants were said to have 'consented' to the sexual activity.
[52] D v The State of Western Australia [2009] WASCA 155.
[53] Cairns v The State of Western Australia [2015] WASCA 198.
However, I am of the view that the cases of KMB v The State of Western Australia,[54] Coulter v The State of Western Australia,[55] CDL v The State of Western Australia,[56] AJ, and NSA v The State of Western Australia[57] all support the appellant's contention that the sentence of 10 years' imprisonment that was imposed for count 1 was manifestly excessive.
[54] KMB v The State of Western Australia [2010] WASCA 212.
[55] Coulter v The State of Western Australia [2019] WASCA 215.
[56] CDL v The State of Western Australia [2022] WASCA 18.
[57] NSA v The State of Western Australia [2023] WASCA 53.
In KMB, a sentence of 10 years and 6 months' imprisonment imposed post‑trial for an offence contrary to the predecessor to the current s 321A offence was found not to be manifestly excessive. However, the offending behaviour involved in KMB was significantly more serious than the course of criminal conduct in this case. The facts in KMB, as they were described in Coulter, are referred to by Mazza JA at [75]. I would also refer to the following observations made by Buss JA (as his Honour then was) in KMB:
The facts and circumstances of and underpinning count 1[58] on the indictment are shocking. The appellant was a predator of the worst kind. He was a man of mature years when he committed the three episodes relied on by the prosecution in relation to count 1. The complainant was then a little girl aged between about 8 and 10 years. The appellant grossly abused his position of trust. His very young step‑daughter was especially vulnerable as a result of her mother's drug addiction and consequent neglect of her maternal obligations. The appellant is responsible for having destroyed the complainant's innocence and deprived her of any prospect of a reasonably satisfactory upbringing with appropriate emotional and psychological nurturing by a father figure. The impact of his offending has been devastating on the complainant and will be long‑lasting. Although the appellant's personal circumstances reveal some mitigatory factors, very little weight can, in all the circumstances, be given to them.
In my opinion, the sentence of 10 years 6 months' imprisonment (with 8 years 6 months' to be served before eligibility for parole), although undoubtedly severe, properly reflected all relevant sentencing factors, including the need for appropriate punishment and general deterrence. Neither the head sentence nor the minimum term which the appellant must serve before becoming eligible for release on parole (see The State of Western Australia v BLM [2009] WASCA 88; (2009) 256 ALR 129 [43]) is plainly unreasonable or unjust when it is viewed from the perspective of the maximum available penalty, the customary standards of sentencing and the objective seriousness of the offending, after taking into account the appellant's personal circumstances.[59] (emphasis added)
[58] Count 1 was an offence contrary to the predecessor of the current version of s 321A of the Code.
[59] KMB[124] ‑ [125].
In Coulter, the sentence of 13 years' imprisonment that was imposed on the offender, after a plea of guilty that attracted a discount of 25%, was found to have been manifestly excessive. This court resentenced the appellant to a term of 9 years' imprisonment, after also allowing a discount of 25% for the plea of guilty, but without making any reduction for totality reasons. The period of time during which the offence contrary to s 321A was committed in Coulter was similar to the period of time during which the appellant committed count 1 in this case. However, while the conduct that was relied on to establish the elements of the offence occurred on just three occasions, the overall offending behaviour in Coulter was significantly more serious when compared to this case. The offender in that case administered a stupefying substance to the complainant, who was just 6 or 7 years of age, on each of the three occasions. All the offending in Coulter also involved the complainant's own mother, as well as other adults, during which the complainant was both exposed to and required to participate in the performance of sexual acts with adults. Two of the incidents were recorded on video by the complainant's mother.
The cases of CDL, AJ and NSA all concerned sentences imposed for sexual offences that were committed against more than one victim and that were committed over longer periods of time.
In CDL, the appellant was convicted after trial of three counts contrary to s 321A of the Code. Those charges related to a series of sexual offences that were committed against three very young children, one of whom was as young as 22 months old. The appellant recorded all of the offending behaviour relating to those charges on video. In relation to two counts, the offending took place over the course of 18 months. The offending relating to the third count took place over a period of three years. The offences were concerned with various acts of indecent dealing, including touching the complainants' vaginas and breasts. The appellant was also sentenced for offences of producing child exploitation material, which related to the offences committed against the complainants, and for an offence of possession of a large quantity of other child exploitation material. A fuller description of the totality of the offending is set out in the joint reasons in CDL at [8] ‑ [26].
The appellant in CDLwas sentenced to a total effective sentence of 12 years and 6 months' imprisonment. The individual sentences imposed for the three offences contrary to s 321A of 4 years, 4 years, and 3 years' imprisonment respectively were arrived at after the sentencing judge made reductions in the sentences she would otherwise have imposed, for totality reasons.
There are limitations to the usefulness of CDL as a comparator because the court refused leave to appeal against sentence. Accordingly, the appellant's argument in that case that the total sentence of 12 years and 6 months' imprisonment infringed the first limb of the totality principle was found not to have been reasonably arguable. However, when viewed in its totality, the offending in CDL was more serious than the course of conduct engaged in by the appellant in this case. Further, the offender in CDL pleaded not guilty and proceeded to trial. Having regard to the 25% discount that was afforded to the appellant in this case pursuant to s 9AA of the Sentencing Act 1995 (WA), had the appellant pleaded not guilty and proceeded to trial, it appears that the sentencing judge would have sentenced him to a term of imprisonment that would have exceeded the aggregate term imposed in CDL.
Each of the sentences imposed in AJ and NSA, including the total effective sentences, were shorter than the sentence imposed on the appellant in this case.
In AJ, the offender repeatedly committed sexual offences against both of his daughters from when they were very young, over an extended period of time of seven and a half years. The offending in AJ, against the offender's two daughters, A and M, is best described by quoting from the reasons of Mitchell J in full:[60]
[60] AJ [11] ‑ [20].
Circumstances of offending against A
The appellant's offending against A involved many occasions of the appellant placing his hands down the front of her pants and rubbing her vagina. This indecent dealing was accompanied by the appellant threatening A that she would be in trouble if she did not comply, or what A referred to as 'him making bargains with me and saying if I want this then he has to have this many seconds'. A described the incidents happening 'heaps of times'. In his interview with police the appellant described the touching of A's breasts and vagina as occurring 'weekly'. He also accepted his pattern of 'bargaining' with A by agreeing to her requests if he could 'have a feel'.
A recalled a number of specific instances of sexual abuse by the appellant.
On one occasion, when she was about 10 years of age, the appellant took A to his bedroom after she had taken a shower and told her to remove her clothing. A did this because she was scared. The appellant made A lie down on his bed. He touched her all over her naked body and kissed her on the chest and genitals while rubbing her vagina.
On another occasion, at around the same time, the appellant entered the room where A and her sister were sleeping. He placed his hand under the covers and A's pyjama pants and rubbed her vagina.
A third example was a demand the appellant made during A's 12th birthday party, when the appellant said 'you owe me for this party, you have to let me touch you' and 'you have to let me do this to you otherwise you're going to be in trouble'. A few days after the party, the appellant placed his hand down the front of A's pants and rubbed her vagina.
A recalled, on another occasion, being alone in the family home with the appellant, when he placed his hand down her pants and began to count aloud. When A tried to move the appellant told her 'no, no, you've got this many more seconds left'.
It appears from the statements made by A and the appellant that these incidents occurred so frequently and regularly that neither was able to remember many individual incidents separately from the others.
Circumstances of offending against M
The appellant repeatedly touched M on the buttocks, breast and vagina.
On one occasion, the appellant told M to go into his bedroom and told her to undress. M complied because she was scared of the appellant. The appellant also undressed and lay on top of M, moving up and down so his genitals made contact with her vagina. The appellant told M not to tell anyone because, if she did, he would get into trouble.
There were also occasions when the appellant kissed or stimulated M's vagina while they were naked, and at least one occasion where M touched the appellant's penis. The frequency of the abuse was similar to that experienced by A. Again, the abuse was so frequent that neither the appellant nor M could recall many separate incidents.
It is true that the offending in AJ and in NSA can be distinguished from the present case because the offending in those cases did not involve any penile penetration of a child's mouth. However, it must be understood that the appellant was sentenced on the basis that he penetrated the complainant's mouth with his penis on only one occasion while they were in the appellant's pool.[61] While the facts relied on by the prosecution also alleged that the appellant had on numerous other occasions while he was in the pool with the complainant, 'directed' her to lick his penis 'by pointing downwards in the same manner he had earlier',[62] as the respondent's submissions on the appeal make clear, this did not amount to an allegation that there had been other completed acts involving the licking of the appellant's penis.[63] When considered as a whole, the objective criminality of the offending in AJ was greater than in the present case. Yet the offender in that case was sentenced to a total effective sentence, which was found not to have infringed the totality principle, that was only one year less than the sentence that was imposed on the appellant for count 1.
[61] The appellant was also sentenced on the basis that he had procured the complainant to lick his penis on the same occasion while they were in the pool together.
[62] ts 12.
[63] Respondent's submissions, par 10e.
After a successful appeal, the offender in NSA was resentenced to a term of 5 years' imprisonment for an offence contrary to s 321A of the Code, in which he repeatedly engaged in sexual conduct against his young daughter over a five‑year period. Although the particular conduct in NSA was less serious when compared to the appellant's offending conduct, the offending was aggravated by the fact that the offender in NSA was the complainant's father and he had care of the complainant by reason of an order made by the Family Court of Western Australia. Further, the offending in NSA took place over a significantly greater period of time. Taking into account all of those factors, there is what appears to me to be a disproportionate difference between the sentence of 5 years' imprisonment ultimately imposed on the offender in NSA, when compared to the sentence of 10 years' imprisonment imposed on the appellant in this case.
It is also important to appreciate that in addition to an offence contrary to s 321A of the Code, the offender in NSA also committed an offence of possession of child exploitation material, relating to three images of his 12‑year‑old intellectually disabled son posing in lingerie and high‑heeled shoes that were found on the offender's mobile phone. Further, the offender in NSA was also sentenced for an offence of attempting to pervert the course of justice which related to his attempts, through intermediaries, to persuade his daughter not to cooperate in the prosecution against him. After a successful appeal, this court resentenced the appellant to a total effective sentence of 6 years 3 months' imprisonment. The sentence that was imposed on the appellant was markedly more severe than the total effective sentence that was ultimately imposed in NSA.
In conducting this analysis of other cases, I have not referred to the decision of Dickens v The Queen.[64] Although the result in that case also appears to provide some support for ground 1, its usefulness as a comparator is necessarily limited by the fact that it was decided almost 20 years ago, and it is well known that sentences for sexual offences committed against children have been firmed up since that time.
Conclusion on ground 1
[64] Dickens v The Queen [2004] WASCA 179; (2004) 147 A Crim R 343.
As I have already explained, the appellant committed a very serious offence. He was the de facto grandfather of the victim, who was very young at the time of the offending. He repeatedly betrayed her trust in him and the trust that had been reposed in him by the victim's parents for his own sexual gratification over the course of about nine months. The appellant's offending behaviour is likely to have long‑term, damaging effects on the victim and her family. However, as Quinlan CJ said in MHE v The State of Western Australia,[65] although it 'may seem strange … for the court to embark on a process of placing a particular offender's conduct within a scale of severity of such conduct generally, all of which is deplorable … that is what the law requires the court to do'.
[65] MHE v The State of Western Australia [2019] WASCA 133 [4].
Parliament has provided that the maximum penalty for the offence of persistently engaging in sexual conduct is 20 years' imprisonment. Further, and as I have explained, when a person is charged with an offence contrary to s 321A of the Code and is also charged with offences that allege the commission of specific 'prescribed offences' during the same period as that offence, the only relevant maximum penalty for practical purposes is the maximum penalty prescribed by s 321A(4).
In my view, notwithstanding the seriousness of the offence committed by the appellant, when it is viewed in light of the maximum sentence of 20 years' imprisonment, the standards of sentencing customarily imposed with respect to that offence, the appellant's personal circumstances and the discount that was afforded on account of the plea of guilty, the sentence of 10 years' imprisonment that was imposed on the appellant was plainly unreasonable or unjust. Although I am unable to identify any specific error made by the sentencing judge in the exercise of her sentencing discretion, I infer that a material error was made because the sentence was manifestly excessive.
Ground 2
Given my conclusion in relation to ground 1, it is unnecessary for me to consider the merits of ground 2.
Conclusion
I would grant leave to appeal in relation to ground 1 and allow the appeal. Given that it is unnecessary to decide ground 2, I would refuse leave to appeal in relation to that ground.
The appellant did not seek to rely on any additional material in the event that a ground of appeal was made out and this court was then required to consider whether, in its opinion, a different sentence should have been imposed pursuant to s 31(4)(a) of the Criminal Appeals Act 2004 (WA). It was also not suggested that if the court concluded that a different sentence should have been imposed, it did not have all the material necessary to resentence the appellant.
After taking into account:
(a)the maximum penalty for the offence;
(b)the circumstances of the offending in count 1, based on the sentencing judge's unchallenged findings;
(c)the place the offending occupies on the scale of seriousness;
(d)the appellant's personal circumstances, as found by the sentencing judge; and
(e)the appellant's plea of guilty, in respect of which I would also afford a discount of 25% in accordance with s 9AA of the Sentencing Act,
I am of the view that the appropriate sentence for count 1 is 7 years and 4 months' imprisonment.
For the avoidance of doubt, it should not be assumed that I would have imposed the same sentence had the appellant been charged only with individual prescribed offences.
As the appellant did not challenge any of the individual sentences that were imposed for counts 2 ‑ 10 on the indictment and given that, in any event, none of those sentences can be the subject of an order that they be served wholly or partly cumulatively on the sentence imposed for count 1, I would not interfere with any of those sentences.
As the sentencing judge did, I would make an order that the appellant is eligible to be considered for release on parole. I would also order that all the sentences be backdated to commence on 8 February 2022.
The sentencing judge also made an order that the appellant be subject to a violence restraining order. The appellant did not challenge that order. Accordingly, I would not interfere with that order.
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
26 APRIL 2024
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