1. On 13 November 2020, the appellant was sentenced by Wallace DCJ to a total effective sentence of 8 years 11 months' imprisonment for 17 counts of sexual offending against his granddaughter, Gemma (not her real name), committed between 2016 and 2020. He appealed against this sentence. On 15 March 2022, the appeal was dismissed. See LTT v The State of Western Australia[1]

1. At the outset, it is convenient to refer to the sentencing of the appellant by Wallace DCJ. The details of the offences, the sentences that were imposed, and a summary of the sentencing remarks are set out in LTT [No 1].[6] The salient features of the proceedings are set out below.
2. The appellant was convicted on his pleas of guilty of 17 offences against Gemma, who was aged between 7 and 11 years old at the time of their commission. The appellant was convicted of five counts of sexually penetrating a child by penetrating her vagina with his fingers, three counts of sexually penetrating Gemma by cunnilingus, seven counts of indecently dealing with Gemma, and two counts of indecently recording her. The offences related to five occasions, spanning a period of about four years. They were representative of more regular offending conduct against Gemma.
3. Each offence alleged that Gemma was 'a child whom [the appellant] then knew to be his lineal relative [who was] under the age of 16 years'. The offences for which the appellant was sentenced and the sentences imposed are summarised in the table below:

On a date unknown between 31 December 2015 and 1 January 2017 at a Perth suburb, the appellant sexually penetrated Gemma's vagina with his fingers.

On a date unknown between 31 December 2016 and 1 March 2017 at a Perth suburb, the appellant sexually penetrated Gemma's vagina with his fingers.

On the same date and place as count 2, the appellant indecently dealt with Gemma by procuring her to rub his penis.

On a date unknown between 31 May 2019 and 24 June 2019 at a Perth suburb, the appellant indecently dealt with Gemma by giving her red, see-through lingerie.

On the same date and place as count 4, the appellant sexually penetrated Gemma's vagina with his fingers.

On the same date and place as count 4, the appellant sexually penetrated Gemma by engaging in cunnilingus.

On the same date and place as count 4, the appellant indecently dealt with Gemma by procuring her to rub his penis.

On the same date and place as count 4, the appellant indecently recorded Gemma by filming her.

On an unknown date between 23 June 2019 and 1 January 2020 at a Perth suburb, the appellant indecently dealt with Gemma by giving her black, see‑through lingerie to wear.

On the same date and place as count 9, the appellant sexually penetrated Gemma's vagina with his fingers.

On the same date and place as count 9, the appellant sexually penetrated Gemma by engaging in cunnilingus.

On the same date and place as count 9, the appellant indecently dealt with Gemma by procuring her to masturbate him.

On the same date and place as count 9, the appellant indecently recorded Gemma by filming her.

On 22 March 2020 at a Perth suburb, the appellant sexually penetrated Gemma's vagina with his fingers.

On the same date and place as count 15, the appellant indecently dealt with Gemma by touching her breasts.

On the same date and place as count 15, the appellant sexually penetrated Gemma by engaging in cunnilingus.

On the same date and place as count 15, the appellant indecently dealt with Gemma by procuring her to rub his penis.

1. The unchallenged facts of the offending as found by Wallace DCJ are as follows.
2. Count 1 occurred sometime in 2016, when Gemma was 7 or 8 years old, at the appellant's home in a Perth suburb. While the appellant and Gemma were alone in a bedroom, the appellant removed her clothing and then rubbed her clitoris with his fingers.
3. Counts 2 and 3 occurred in one incident in January or February 2017, when Gemma was 8 years old. The appellant and Gemma were alone in a bedroom at the appellant's home. While she was lying on the bed, he removed her clothing, placed his hand on her vagina and then rubbed her clitoris with his fingers. A short time later, at the appellant's urging, Gemma masturbated his penis.
4. Counts 4 to 8 occurred in one incident which took place in 2019, when Gemma was 10 years old. Again, the appellant and Gemma were alone in a bedroom at the appellant's house. While he was in a walk‑in wardrobe, the appellant asked Gemma to put on lingerie, which she did. The appellant then came out of the walk‑in robe wearing no pants and holding a GoPro camera. He then removed the lingerie from Gemma and put his hand on her vagina. He then rubbed her clitoris with his fingers. The appellant then performed an act of cunnilingus on Gemma. She applied oil to the appellant's genitals and masturbated him until he ejaculated. The appellant recorded these events.
5. Counts 9 and 11 to 14 occurred between 23 June 2019 and 1 January 2020, when Gemma was 11 years old. On this occasion, the appellant and Gemma were alone in a bedroom. As he had in the incident described at [14] above, the appellant asked her to put on lingerie while he was in a walk‑in robe. The appellant emerged from the walk‑in robe with a GoPro camera, moved the lingerie to one side, put his hand on Gemma's vagina and rubbed her clitoris with his fingers. The appellant then removed the lingerie and continued to rub Gemma's clitoris, before engaging in cunnilingus. The appellant then put oil onto his erect penis, which Gemma rubbed until he ejaculated. The appellant recorded these events.
6. Counts 15 to 18 occurred on 22 March 2020, when Gemma was 11 years old. The appellant took her camping at the rear of his property. Inside a tent, the appellant removed Gemma's clothing and placed oil on her, before he then put his hand on her vagina and rubbed her clitoris with one hand and squeezed her breast with the other hand. The appellant then performed an act of cunnilingus, after which he put oil onto his penis, which Gemma began to rub.
7. The appellant's personal circumstances were summarised by Wallace DCJ. That summary was, in effect, repeated by Massey DCJ and is referred to below between [35] and [38].
8. At the time of sentencing, Wallace DCJ was aware that the appellant had been charged with the offences against Debra, however he had not yet been convicted of them nor indicated his pleas of guilty.
9. In her sentencing remarks, Wallace DCJ identified seven aggravating features of the appellant's offending:

(1) Gemma was a vulnerable young girl aged between 7 and 11 years of age.

(2) As Gemma's grandfather, the appellant was in a position of trust. The offending constituted a gross and serious breach of that position.

(3) There was a very substantial age and power disparity between the appellant and Gemma.

(4) The appellant groomed Gemma.

(5) The offending was persistent and sustained over a long period of time and only came to an end when Gemma was able to find the courage to tell her parents about the abuse.

(6) The offending was premeditated and planned. The appellant repeatedly told Gemma not to tell anyone about the abuse, thereby concealing his offending.

(7) The appellant exploited the vulnerability of Gemma for his own sexual gratification.

1. Her Honour referred to the devastating psychological impact of the offending on Gemma and her immediate family, including by recounting parts of the victim impact statements written by Gemma and her parents.
2. Her Honour had regard to a number of mitigating factors, the most significant of which was the appellant's pleas of guilty for which her Honour discounted the individual sentences by 25% pursuant to s 9AA of the Sentencing Act 1995 (WA). Her Honour also took into account the appellant's age, being 69 years old at the time of sentencing, some health issues that he had, the fact that he was likely to spend a large proportion of the remainder of his life in custody, and that this time would weigh more heavily on him than a younger person of good health.

1. We now turn to the sentencing by Massey DCJ, which is the subject of the current appeal.
2. The appellant faced trial on an 11‑count indictment. On 7 August 2023, on the morning of the first day of his trial, he pleaded guilty to counts 2, 3, 4, 5, 6 and 10, being four counts of unlawful and indecent dealing, contrary to s 183 of the Criminal Code (WA) (the Code) (repealed); one count of having carnal knowledge of Debra, contrary to s 197 of the Code (repealed); and one count of sexual penetration of a lineal relative, contrary to s 329(7) of the Code. Counts 1, 7, 8, 9 and 11 were discontinued. On 9 August 2023, the appellant was sentenced to a total effective sentence of 6 years 6 months' imprisonment, to be served cumulatively upon the sentences imposed by Wallace DCJ. The details of the offences and the sentences imposed by Massey DCJ are summarised in the table below:

On a date unknown between 31 December 1980 and 1 January 1982 at a Perth suburb, the appellant unlawfully and indecently dealt with Debra, a child under the age of 14 years by inserting his finger into her vagina.

On a date unknown between 31 December 1980 and 1 January 1982 at a Perth suburb, the appellant unlawfully and indecently dealt with Debra, a child under the age of 14 years by inserting his finger into her vagina.

On a date unknown between 1 March 1981 and 2 March 1983 at a Perth suburb, the appellant unlawfully and indecently dealt with Debra, a child under the age of 14 years by inserting his finger into her vagina.

On a date unknown between 31 December 1983 and 1 January 1985 at a Perth suburb, the appellant unlawfully and indecently dealt with Debra, a child under the age of 14 years by inserting his finger into her vagina.

On a date unknown between 1 March 1988 and 2 March 1989 at a Perth suburb, the appellant carnally knew Debra, a person he knew to be his daughter, by inserting his penis into her vagina.

On a date unknown between 31 August 1994 and 1 July 1995 at a Perth suburb, the appellant, a person of or over the age of 18 years, sexually penetrated Debra, who he then knew to be his lineal relative, by inserting he penis into her vagina.

1. The unchallenged facts of the offending are as follows.
2. As we have already mentioned, Debra is the appellant's biological daughter. The offending against her pre‑dated the offending against Gemma. The appellant's offending occurred between 1981 and 1995, from when Debra was aged between 8 or 9 years old and continued until she was 24 years of age. The offending occurred in the family home, and, later, when she was an adult, in her own home. The offences were representative of the appellant's conduct towards Debra.
3. Count 2 occurred on an unknown date around the time of Debra's 9th birthday in 1981. The appellant told her to go into a large shed in the backyard of the family home. There, he lifted her onto a benchtop, pulled her underwear down, and then touched her vagina and rubbed her clitoris. At the same time, the appellant rubbed his penis with his other hand.
4. Count 3 occurred on a different occasion, again around the time of Debra's 9th birthday. The appellant entered her bedroom and woke her up by touching her. He then lifted up Debra's pyjama top and touched her breasts. He then removed Debra's pyjama bottoms and rubbed her vagina with one hand while using his other hand to touch his penis. After the appellant touched Debra on this occasion, he put his fingers to his lips as he left the room in a 'shushing' gesture.
5. Count 4 occurred on an unknown date between 1981 and 1982, around the time of Debra's 9th or 10th birthday. This offence occurred in a shed in which the appellant kept a green jeep with a long wheelbase. The appellant lifted Debra onto the bonnet of the jeep and removed her underwear. The appellant rubbed Debra's clitoris and then licked her vagina while touching her clitoris and breasts.
6. Count 5 was committed on an unknown date in 1983, when Debra was 10 or 11 years old, after she had come home from school. As on other occasions, the appellant took Debra into his and her mother's bedroom at the family home. There, he removed her clothing and then his own and told Debra to lie on the bed. He then said words to Debra to the effect of 'let's have a special cuddle. You know I love you'. He then touched and rubbed her breasts, put her hand on his erect penis, and used his hands to rub and touch Debra's vagina.
7. Count 6 occurred on an unknown date after Debra's 16th birthday, on an occasion when she had come home from school early. The appellant locked the front door of the house and took Debra into his and her mother's bedroom. He instructed her to remove her clothing, which she did. He then removed his own clothing. The appellant then inserted his penis into Debra's vagina for 5 to 10 minutes before removing his penis and ejaculating. The appellant said words to Debra to the effect of 'now you are older I can love you more'.
8. Debra left the family home in 1989 at the age of 17. She entered into a relationship with a man and had two children with him. This relationship was abusive and she left the relationship because of domestic violence. From around 1991, the appellant began attending at Debra's residences, bringing food or groceries, and requesting that she engage in sexual intercourse with him. Against this background, in September 1994, the appellant committed count 10. On this occasion, the appellant visited the house in which Debra and her children were living, bringing with him groceries and lollies for the children. The appellant took Debra into the master bedroom and penetrated her vagina with his penis. Eventually, the appellant withdrew his penis and ejaculated.
9. In October 2019, Debra contacted the appellant and requested that he pay her $10,000 as compensation for what he had done to her. The appellant denied the offending but agreed to pay Debra $10,000 on the condition that she provide him with a letter stating that neither she nor anyone on her behalf would raise the matter again. The appellant told Debra to cease contact with him and his wife (Debra's mother). He also told Debra that he had received legal advice to the effect that she had engaged in blackmail and extortion, conduct which would jeopardise her employment. Ultimately, Debra signed the letter as requested by the appellant, who then transferred the $10,000 to her.
10. On 26 June 2020, Debra reported the offences against her to the police. On 21 July 2020, the appellant, who had already been charged with the offences with respect to Gemma, was charged with offences in respect of Debra.
11. Unsurprisingly, the appellant's offending has had a profound negative effect upon Debra. Her victim impact statement revealed that she suffered from low self‑esteem and that the psychological effects of what happened to her have impacted negatively upon her relationships, education, employment, and wellbeing. The offending has also affected her physical health.
12. Massey DCJ described the appellant's personal circumstances. He did so having been provided with the pre‑sentence report and psychological report that had been prepared for the sentencing proceedings before Wallace DCJ.[7]
13. The appellant was 71 years of age at the time he was sentenced by Massey DCJ. At the time of the offending against Debra, he was between the ages of 29 years and 42 or 43 years old.
14. The appellant was born in the United Kingdom and moved to Australia in 1973. He appeared to have had a steady history of employment. He had been married for more than 50 years and had three adult children. Prior to the commission of the offences against Debra, he had no criminal record.
15. The appellant is in reasonable health. He suffers from type 2 diabetes and had experienced some heart problems while in custody. The appellant's counsel informed Massey DCJ that a spot had been discovered on one of the appellant's lungs. There was no evidence before Massey DCJ that any of the appellant's health difficulties impacted adversely on his life expectancy.
16. The author of the psychological report noted that there was no evidence of cognitive difficulties or thought disorder. Although the author of the report was not aware of the appellant's offending against Debra,[8] she stated that the appellant had sexually deviant interests.
17. In his sentencing remarks, Massey DCJ identified the following aggravating factors:

(1) The offending against Debra occurred persistently over a long period of time.

(2) As Debra's father, the appellant abused the trust reposed in him by offending against Debra. His Honour noted that Debra was entitled to rely upon the appellant to protect, love, support and guide her. Instead, he sexually abused her. While these circumstances also existed in relation to counts 6 and 10, the sentencing judge did not take these circumstances into account as an aggravating factor because being a lineal relative was an element of these offences and was a factor reflected in the statutory penalty for the offences.

(3) There was a considerable disparity in age and power between the appellant and Debra.

(4) The appellant groomed Debra from a very young age and continued to do so into her adulthood. He normalised his sexual behaviour towards Debra. His Honour noted that count 6 occurred after Debra's 16th birthday and was the first occasion on which he sexually penetrated Debra's vagina with his penis. Although the sentencing judge accepted that there was no evidence of physical force or coercion for any of the counts, his Honour found that the appellant's grooming of Debra negated the need for force or coercion as she considered the offending to be 'normal and acceptable'.

1. Massey DCJ considered the offending the subject of counts 2, 3, 4 and 5 to be serious offences of their type, given that each offence involved the digital penetration of Debra's vagina. His Honour characterised count 6 as being 'at least mid‑range offending of its type', and observed that it was clearly premeditated. Massey DCJ characterised the offending the subject of count 10 as 'mid‑range offending of its type'.
2. As for mitigating factors, his Honour gave a 10% discount for the pleas of guilty pursuant to s 9AA of the Sentencing Act, despite the lateness of the pleas. His Honour acknowledged that this discount was 'generous', but explained that he was mindful of the fact that Debra did not have to give evidence. Massey DCJ rejected a submission that a 'letter of apology' written by the appellant demonstrated genuine remorse on his part. His Honour found the appellant was not genuinely remorseful.
3. Massey DCJ said that he gave the appellant 'credit' for his good character prior to the commission of counts 2, 3, 4 and 5. Massey DCJ acknowledged the appellant's age. He accepted that the appellant's time in custody would likely be more onerous upon him.
4. Massey DCJ found that the appellant's risk of reoffending would be reduced by his lack of opportunity to reoffend upon his release, given the appellant's age and the unlikelihood that he would have unsupervised access to children.
5. In arriving at an appropriate sentence for the appellant in respect of his offending against Debra, Massey DCJ said that he considered the appellant's offending against Debra to be 'more serious offending' than the offending against Gemma, for which he had already been sentenced. In determining the terms of imprisonment appropriate for the charges, his Honour had regard to issues of totality. He expressed the view that were it not for the sentence the appellant was currently serving, he would have imposed a total effective sentence of 9 years' imprisonment. However, to give effect to the totality principle, his Honour reduced the sentence he would otherwise have imposed for count 2 and made orders for cumulacy and concurrency which resulted in a total effective sentence of 6 years 6 months' imprisonment. The table below sets out the sentences before and after his Honour's adjustment for totality:

6 months' imprisonment (reduced for totality reasons) (cumulative)

1. The ground of appeal relied upon by the appellant is expressed as follows:
   1. The total sentence of 15 years and 5 months' imprisonment offends the totality principle in that the aggregate sentence does not bear a proper relationship to the overall criminality of the appellant's conduct, having regard to all relevant circumstances.

1. The totality principle comprises two limbs. The first limb is that the total effective sentence must bear a proper relationship to the overall criminality involved in all of the offences, viewed in their entirety and having regard to the circumstances of the case including those referable to the offender personally.[9]
2. The second limb is that the court should not impose a 'crushing' sentence. The word 'crushing' in this context connotes the destruction of any reasonable expectation of a useful life after release. An aggregate sentence may be inappropriately long under the first limb even if it cannot be described as crushing.[10]
3. The ground of appeal relied upon by the appellant seeks to invoke only the first limb of the totality principle. The appellant does not claim that, by reason of his age, the second limb of the totality principle applies.
4. As McLure J explained in Barnes v The State of Western Australia,[11] the totality principle has been held to apply in circumstances where an offender is still serving a sentence for some other offence at the time of sentencing. Her Honour explained that the rationale for the principle is that the imposition of a wholly cumulative sentence, either in respect of sentences already being served or in respect of sentences to be served, is said to be that the second sentencing court may see or assume that the prisoner has made progress towards rehabilitation during the term of the first sentence, and that there is not the same demand for retribution where a prisoner has already suffered loss of liberty and emphatic denunciation of his or her criminal behaviour and attitude.[12]
5. In the present case, it is correctly accepted by the parties that the proper application of the first limb of the totality principle requires this court to have regard to the sentencing outcomes before both Wallace DCJ and Massey DCJ. Accordingly, the critical question is that posed in [5] above.

Sentencing principles - sexual offending against children

1. The general principles applicable to the sentencing of offenders convicted of sexual offending against children are well established and were recently summarised in OTR v The State of Western Australia [No 2],[13] as follows:
   1. There is no tariff for sexual offences against children. That is due to the great variation that can occur in the circumstances of the offending and the offenders themselves.
   2. The primary sentencing considerations for sexual offending against children are appropriate punishment of the offender and general and personal deterrence - these considerations being informed by the need to protect vulnerable children.
   3. Matters personal to an offender will ordinarily carry less weight.
   4. In particular, the circumstance that an offender is otherwise of prior good character has little weight in cases of sexual offending against children. The offending is of such a nature that, until revealed, it generally will not impinge on others and will not affect their perception of the offender. Such offending can exist conformably with an otherwise apparent good character.

It was observed in 2012 that, in recent years, there had been a firming up of sentences imposed for sexual offences against children - particularly in cases involving intra-familial sexual abuse.

Some cumulation of sentences is to be expected to reflect the fact that an offender's sexual offending against children involves multiple victims. Also, some cumulation of individual sentences is to be expected where there is repetitive and prolonged sexual offending against an individual child. This reflects the increased likelihood of significant and enduring harm that comes with such repetitive and prolonged sexual abuse, as well as to reflect the fact that the offender has not simply given way to impulse on an occasion. (footnotes omitted)

1. In JFB v The State of Western Australia,[14] this court made the following observations concerning the utility of comparable cases in the context of sexual offending, including sexual offending against children:[15]

The range of sentences imposed in other cases does not establish the bounds of a sound exercise of the sentencing discretion. Sentences customarily imposed in comparable cases provide a yardstick or reference point for ensuring broad consistency in sentencing, bearing 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 which sentences imposed in comparable cases reveal and reflect.

The limited utility of broadly comparable cases has been emphasised in the context of sexual offending, including sexual offending against children, given the wide variety of combinations of offending conduct involved in such offending. As this Court observed in CAND v The State of Western Australia:

'[B]ecause the range of circumstances of sexual offending and sexual offenders are infinitely variable, there is no established tariff for sexual offences involving children and the total effective sentence imposed in one case can only provide very limited guidance in assessing whether the total effective sentence imposed in the case under appeal is manifestly excessive, in the sense that error can be implied from the exercise of the sentencing discretion. For those reasons there will necessarily be limits upon the utility of the process of argument presented on behalf of the appellant.'

To similar effect, in Pennetta v The State of Western Australia, Hall J (as his Honour then was) observed:

'Where, however, it is only claimed that there has been a breach of the totality principle and no challenge is made to the individual sentences the utility in comparing the total effective sentence with total sentences in other cases is more limited. This is because the total effective sentence is not one imposed for a single offence. It is often difficult enough to compare sentences imposed in different cases with different factual circumstances and different personal circumstances where the [sentence] relates only to a single offence. The fact that different offenders may have received different total effective sentences in respect of different groupings of sentences adds a level of complexity that makes comparisons difficult. Nonetheless it is important to ensure that there is broad consistency in sentences. (authorities omitted)'

The observations of Mitchell JA in JJR v The State of Western Australia, cited with approval in MHE v State of Western Australia, are also pertinent:

'Often, given the wide variety of combinations of offending conduct, offenders and victims involved in sexual offences against children, different views may reasonably be taken as to whether the overall criminality involved in a group of offences in one case is greater or lesser than that involved in a group of offences in a different case. That variety makes it difficult to identify direct comparators and complicates any attempt to analyse whether the total effective sentence imposed in a particular case reveals a comparatively more severe or lenient approach than that adopted in a different case.'

1. None of the individual sentences imposed by Massey DCJ are challenged by the appellant. Nor does the appellant submit that, standing alone, the total effective sentence imposed by his Honour infringed the totality principle. The appellant accepts that the offending against Gemma and Debra involved a high degree of criminality and warranted a substantial overall total effective sentence. He also accepts that Massey DCJ was obliged to impose a total effective sentence upon the appellant for the offences against Debra which was, to some degree, cumulative upon the total effective sentence imposed by Wallace DCJ. Nevertheless, the appellant submits that an overall total effective sentence of 15 years 5 months' imprisonment was 'simply too long'.[16]
2. The appellant sought to support the proposition that the overall total effective sentence infringed the first limb of the totality principle by comparing the outcome in the present case with the outcomes in a substantial number of other cases involving serious child sexual offending decided by this court. The cases cited by the appellant in his written submissions are listed in the schedule to these reasons.
3. In oral argument, counsel for the appellant focused on LYN v The State of Western Australia[17] and JYL v The State of Western Australia.[18] She also referred to three cases cited by the respondent in its written submissions, being KMB v The State of Western Australia;[19] ERA v The State of Western Australia;[20] and CGF v The State of Western Australia,[21] in which the offenders were convicted after trial. Counsel for the appellant submitted that the offending in each of these cases involved a greater degree of criminality than the present case, and the total effective sentences imposed after trial were either less or only slightly more than the overall total effective sentence that was imposed in the present case.
4. Counsel for the appellant also referred to cases of serious sexual offending against children, such as RGT v The State of Western Australia;[22] Coulter v The State of Western Australia;[23] and AAE v The State of Western Australia,[24] where the offenders had entered pleas of guilty in respect of multiple counts of very serious child sexual offences. It was submitted that the overall criminality of the appellant in the present case, as serious as it was, was less than the overall criminality involved in each of these cases, yet the overall total effective sentence imposed upon the appellant was not significantly different to the outcomes in these cases.

1. Counsel for the respondent submitted that implied error had not been demonstrated in the present case. He emphasised the seriousness of the appellant's offending behaviour, particularly in respect of the offending dealt with by Massey DCJ. Counsel for the respondent highlighted his Honour's observation that the offending committed against Debra was more serious than the offending against Gemma. It was submitted that his Honour's reduction for totality, for the sentences already imposed by Wallace DCJ, was appropriate and did not result in an erroneous overall total effective sentence.
2. As to the comparable cases, counsel for the respondent acknowledged that there were some cases where shorter total sentences had been imposed, or at least upheld, where it might reasonably be said that the offending was more serious than the present case.[25] However, some caution was required when comparing the present case with cases decided in the past because there has been a firming up of sentences for very serious child sex offending, and because of the difficulties in comparing cases where different offenders have received different total effective sentences in respect of different groupings of sentences. The cases cited by the respondent in its written submissions are set out in the schedule to these reasons.

1. We have referred to the maximum penalties for the offences committed by the appellant in the tables which appear at [10] and [23] above. In respect of the offences dealt with by Massey DCJ, it must be borne in mind that counts 2 to 6 were offences of indecent dealing with a child under the age of 14 years, under the now repealed s 183 of the Code. This offending attracted a lesser maximum penalty than would be the case under current provisions relating to the sexual penetration of children. Although it is not relevant to take into account that similar offences committed today would be the subject of higher maximum penalties, it is appropriate to take into account contemporary understanding of the seriou[26]ess of such conduct.26 We also note the modest maximum penalty for the offence against Debra the subject of count 10.
2. It may immediately be recognised that Massey DCJ was faced with a difficult sentencing exercise in sentencing the appellant for the offences against Debra. If his Honour had been sentencing the appellant for all of the appellant's offending against both Gemma and Debra, no doubt the overall effect of the totality principle could have been reflected in the sentences imposed with respect to the offences against each victim. As it was, however, in imposing a sentence for the offences against Debra only, his Honour was required to take into account the overall criminality involved in all of his offending, in circumstances in which the appellant was already serving a substantial term of imprisonment for the offences against Gemma. Necessarily, that meant that the ameliorating effect of the totality principle would be more pronounced in relation to the total effective sentence imposed with respect to the offences against Debra.
3. It is for that reason that it is necessary for this Court to consider the overall total effective sentence of 15 years 5 months' imprisonment resulting from the combined effect of the sentences imposed by Wallace DCJ and Massey DCJ, rather than the total effective sentence of 6 years 6 months' imprisonment imposed by Massey DCJ. As we have noted above, there was no suggestion that, standing alone, that total effective sentence imposed by his Honour infringed the totality principle.
4. We turn then to the overall criminality involved in all of the offences against both Gemma and Debra.
5. It is unnecessary to repeat the details of the offences committed by the appellant. Self‑evidently, as he accepts, they involve a high degree of criminality.
6. The appellant persistently committed very serious sexual offences against Debra between 1981 and 1995, and then against Gemma between 2016 and 2020. His victims were his daughter and granddaughter. Thus, the offending continued across two generations of his family. The charges were representative of his sexual conduct towards each of them. He offended against Debra when she was aged between 8 or 9 years, and continued until she was 24 years old. His offending against Gemma occurred when she was between the ages of 7 and 11 years. The appellant engaged in penetrative sexual activity against each victim. The offending constituted an egregious breach of trust against highly vulnerable child victims, and it has inflicted severe psychological damage upon them. Having regard to the sentencing principles described at [52] above, substantial terms of imprisonment had to be imposed. Given that the offending occurred against separate victims, at separate times, some accumulation of the sentences was necessary.
7. Apart from the pleas of guilty, about which we will say more below, the mitigating factors, including the appellant's limited prior good character, the appellant's age, health, and his reduced risk of reoffending, while not irrelevant, could only be given limited weight. The mitigation associated with youth, genuine remorse, and rehabilitation were absent in this case. The appellant does not suffer from any psychological or psychiatric condition which would justify any lenience.

1. We now turn to the comparable cases, bearing in mind the principles referred to at [53] above.
2. We immediately put to one side the outcome in Coulter (and a related case, SAL v The State of Western Australia[27]) which involves offending of a greater level of seriousness than the present case.[28]
3. In MHE, Mitchell & Beech JJA (with whom Quinlan CJ agreed) carried out an extensive review of sentences imposed for serious interfamilial sexual offending.[29] Much of their analysis was summarised with approval in the recent case of Coutts v The State of Western Australia.[30]
4. In MHE, Mitchell & Beech JJA:

(a) referred to the review of cases undertaken by this court in 2005 in VIM v The State of Western Australia;[31] in 2011 in The State of Western Australia v Prince;[32] and in 2018 in JJR v The State of Western Australia;[33]

(b) summarised a number of cases in which a total effective sentence of 12 years' imprisonment or more has been imposed after pleas of guilty; being RGT; The State of Western Australia v BKJ;[34] GHK v The State of Western Australia;[35] GMS v The State of Western Australia;[36] and LYN;

(c) summarised a number of cases in which a total effective sentence between 10 and 12 years has been imposed after pleas of guilty; being EXF v The State of Western Australia;[37] MMC v The State of Western Australia;[38] and LJH v The State of Western Australia;[39]

(d) summarised a number of cases in which total effective sentences in the region of 12 to 13 years have been imposed after trial; being MAS v The State of Western Australia;[40] ARK v The State of Western Australia;[41] JJR; AIM v The State of Western Australia;[42] CJF v The State of Western Australia;[43] KSN v The State of Western Australia;[44] and SG v The State of Western Australia;[45] and

(e) affirmed the observation made in JJR by Martin CJ that sentences exceeding 15 years, even after pleas of not guilty, are relatively rare. One such case is ERA.

1. In addition to the review of cases carried out in MHE, we have had regard to the outcomes in a number of cases decided since MHE, including NQB v The State of Western Australia;[46] AAE; Coutts; OTR [No 2]; The State of Western Australia v AHD;[47] and JYL.
2. It is unnecessary to repeat the facts and circumstances of the cases mentioned in the previous paragraphs. There are differences between them and the case at hand. There may also be debate as to whether the facts of one or more of the cases involve a greater or lesser degree of criminality when compared to the present case. However, to our minds, what clearly emerges when a broad comparison of the decided cases is made is that the overall total effective sentence in the present case is inconsistent with the standards of sentences customarily imposed, particularly in light of the appellant's guilty pleas.
3. This is starkly illustrated by the outcomes in the cases referred to by the appellant at [56] above.
4. In ERA, this court dismissed an appeal against a total effective sentence of 16 years' imprisonment, imposed after trial, for 21 sexual offences against four victims, two of whom were the offender's nieces and two his granddaughters. The offending against his nieces occurred in 1974 and 1975. The offending against his granddaughters occurred between 2005 and 2008. As against his nieces, the offender was convicted of 11 counts, 10 of which were offences of indecent dealing with a child under the age of 14 years, contrary to the now repealed s 183 of the Code. The offender was also convicted of carnal knowledge of a child under the age of 13 years, contrary to the now repealed s 185 of the Code. The indecent dealing offences against his nieces included rubbing the victim's vagina with his hand or penis, and using the victim's hand to masturbate him.
5. As against his granddaughters, the offender was convicted of 10 counts of sexual penetration of a child, who he then knew to be his lineal relative, contrary to s 329(2) of the Code. This offending included engaging in penile/vaginal penetration, digital/vaginal penetration, and, on two occasions, by inserting a vibrating sex toy into one of the victim's vagina. Conduct of this type resulted in the victim suffering repeated urinary tract infections.
6. At the time he was sentenced, the offender in ERA was 64 years of age. He was considered to pose a considerable risk of reoffending. In 1984, he had been sentenced to 5 years' imprisonment for incest with his daughter.
7. In JYL, this court dismissed the offender's appeal against a total effective sentence of 14 years' imprisonment, imposed after trial, for 14 counts of sexual offending against two victims, his younger sister, ER; and his biological daughter, MM. The counts were representative of an ongoing course of conduct against each victim.
8. The offending against ER occurred between 1972 and 1978, when she was between the ages of 10 and 15 years. The offending against MM occurred between 1984 and 1994, when she was aged between 8 and 14 years. The offending against ER included rubbing her vagina, and culminated in penile/vaginal penetration, leading to ER becoming pregnant. The pregnancy was later terminated. The offending against MM involved inciting her to masturbate and fellate the offender, engaging in cunnilingus with her, attempting to penetrate her vagina with his finger and penis, and rubbing his penis against her vagina.
9. In KMB, this court dismissed an appeal against a total effective sentence of 14 years 6 months' imprisonment, imposed after trial, for one count of having a sexual relationship with a child under the age of 16 years, three counts of sexual penetration of his de facto child, and three counts of sexual penetration of a child without consent. The victim of this offending was the offender's stepdaughter. She regarded the offender as her natural father. The offending was representative of egregious sexual abuse of the victim over a period of about 10 years, when she was aged between 8 and 18 years. The offender engaged in very frequent acts of penile/vaginal sexual penetration with the victim during this period. At the age of 12 years, the victim became pregnant. The pregnancy was later terminated.
10. In CGF, this court dismissed the offender's appeal against a total effective sentence of 15 years' imprisonment, imposed after trial, for 25 offences, 24 of which involved sexual offending against three female victims, MF, who was the offender's daughter; ED, who was the daughter of a friend of the offender; and EF, who was the offender's granddaughter. The offending against MF occurred between 1983 and 2002; against ED, between 1996 and 1998; and against EF, in June 2017 and on 1 February 2018. The offending against MF included indecent dealing by digital penetration of her vagina, touching her vagina, having her fellate him, engaging in cunnilingus with her, and procuring her to touch his penis. The offending against ED involved touching her breasts, and digitally penetrating her vagina. The offending against EF involved acts of digital penetration of her vagina, and procuring her to expose her breasts to him. The offender had a prior record of convictions, including a conviction in 2002 for indecently dealing with a child.
11. In LYN, this court allowed the offender's appeal against sentence and imposed a new total effective sentence of 12 years' imprisonment. In 2005, the offender was sentenced, after trial, to a total effective sentence of 4 years' imprisonment for five counts against his eldest daughter, AP, which were representative of conduct over an 8‑year period. The offending included incidents of touching the victim's chest, rubbing her vagina, making the victim masturbate him to ejaculation, and culminated in an act of sexual penetration by cunnilingus.
12. In 2017, the offender was sentenced, after entering late pleas of guilty, to a total effective sentence of 10 years 3 months' imprisonment for offences against his two younger daughters, GL and AJ, which occurred before 2005. The offending against GL included acts of fellatio, digital/vaginal penetration, and penile/vaginal penetration. As against AJ, the offender digitally penetrated her vagina twice.
13. In allowing the appeal on the basis of an infringement of the totality principle, this court held that the overall total effective sentence imposed upon the offender, at first instance, of 14 years 3 months' imprisonment failed to properly reflect the mitigating effect of the pleas of guilty and the rehabilitation of the offender as a result of his earlier imprisonment.
14. The objective criminality involved in the cases we have just summarised is greater than in the present case. Apart from the offender in LYN (and only to the extent of his offending against his younger daughters), unlike the appellant, none of the offenders had the benefit of pleas of guilty. Despite these circumstances, the total effective sentences imposed in these cases were either less or only slightly more than the total overall effective sentence that was imposed in the present case.
15. The appellant's guilty pleas were important. As this court observed in LYN, it is important that the mitigating effect of the pleas of guilty be reflected not only in the individual sentences, but in the total effective sentence. The process of giving evidence for victims of intrafamilial sexual abuse is often traumatising and damaging. Unless the benefits to the victims and the State resulting from pleas of guilty are properly reflected in the total effective sentence, there will be little incentive for an offender to plead guilty. The absence of such an incentive will increase the number of victims who are exposed to the risk of further pyschological harm through the requirement for them to participate in the trial process.[48]
16. Having regard to our analysis of the comparable cases with the present case, the overall total effective sentence imposed in this case appears to be inconsistent with the standards of sentences customarily imposed.
17. In our view, when consideration is given to:

(1) the maximum penalty for the offences committed by the appellant;

(2) the facts and circumstances of the appellant's offending, including the aggravating circumstances;

(3) the mitigating circumstances, most importantly the pleas of guilty; and

(4) that the overall total effective sentence in the present case is inconsistent with the comparable cases,

we conclude that the overall total effective sentence of 15 years 5 months' imprisonment infringes the first limb of the totality principle. In our view, the overall total effective sentence that was imposed is unreasonable or plainly unjust. That ultimate outcome being the result of the accumulation of the total effective sentence imposed by Massey DCJ in relation to the offences against Debra, inferred error has been established and the ground of appeal has been made out.

1. This court has all the materials it requires to resentence the appellant in respect of the offences dealt with by Massey DCJ. Neither party sought leave to adduce any additional material relevant to the resentencing.
2. We will not repeat the facts and circumstances of the offending before Massey DCJ. While the discount under s 9AA of 10% is generous, having regard to the lateness of the pleas of guilty, the State have not suggested that a lower discount should be given. The appellant's decision to plead guilty meant that Debra did not have to testify at the appellant's trial. We have had regard to the appellant's age and health, and the finding by the sentencing judge that, by reason of the appellant's age, imprisonment will be more onerous on him.
3. We are cognisant of the fact that the appellant must serve the sentence imposed by Wallace DCJ, the subject of LTT [No 1]. However, as the offending against Debra was separate in time and place and involved substantial additional criminality, cumulative sentences for the offending against Debra must be imposed, subject to the application of the totality principle.
4. In our view, and bearing in mind that no adjustment can be made to the sentences already imposed by Wallace DCJ, we regard an appropriate overall total effective sentence to be 13 years' imprisonment. In order to achieve this, we would impose a total effective sentence for the offences dealt with by Massey DCJ of 4 years 1 month's imprisonment. We would sentence the appellant on count 2 to 5 months' imprisonment, on count 6 to 3 years' imprisonment, and on count 10 to 8 months' imprisonment. We would order that these sentences be served cumulatively. We would not interfere with the sentences imposed by Massey DCJ on counts 3, 4 and 5. Those sentences are to be served concurrently with the new sentence on count 6. The appellant will remain eligible for parole. The new total effective sentence is to be served cumulatively on the sentence imposed by Wallace DCJ on 30 April 2021.

GHS v The State of Western Australia [2006] WASCA 42

KC v The State of Western Australia [2008] WASCA 216

GMS v The State of Western Australia [2009] WASCA 107

ERA v The State of Western Australia [2013] WASCA 163

GHK v The State of Western Australia [2014] WASCA 19; (2014) 238 A Crim R 178

LJH v The State of Western Australia [2016] WASCA 155; (2016) 261 A Crim R 355

RGT v The State of Western Australia [2017] WASCA 120

JJR v The State of Western Australia [2018] WASCA 51; (2018) 238 A Crim R 178

LYN v The State of Western Australia [2019] WASCA 45

MHE v The State of Western Australia [2019] WASCA 133

JYL v The State of Western Australia [2021] WASCA 222

OTR v The State of Western Australia [No 2] [2022] WASCA 123

KMB v The State of Western Australia [2010] WASCA 212

ERA v The State of Western Australia [2013] WASCA 163

GHK v The State of Western Australia [2014] WASCA 19; (2014) 238 A Crim R 178

RGT v The State of Western Australia [2017] WASCA 120

Coutts v The State of Western Australia [2023] WASCA 38

CGF v The State of Western Australia [2023] WASCA 187

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.

[1] LTT v The State of Western Australia [2022] WASCA 31.

[2] Gemma is not Debra's daughter, but her niece.

[3] Kabambi v The State of Western Australia [2019] WASCA 44 [21].

[4] MHE v The State of Western Australia [2019] WASCA 133.

[5] MHE [3] - [4]. See also Gomboc v The State of Western Australia [2023] WASCA 115 [196] ‑ [197]; The State of Western Australia v Mojana [2023] WASCA 189 [52]; NQB v The State of Western Australia [2024] WASCA 93 [97].

[6] LTT [No 1] [2] - [3], [6] - [14], [24] - [31].

[7] Both reports were prepared prior to the appellant being charged with the offending against Debra.

[8] It appears from the pre‑sentence reported dated 11 August 2020 that the appellant did not mention his offending against Debra to the author of the psychological report because the psychologist 'did not ask him about it'.

[10] Martino v The State of Western Australia [2006] WASCA 78 [16].

[11] Barnes v The State of Western Australia [2004] WASCA 258.

[13] OTR v The State of Western Australia [No 2] [2022] WASCA 123 [55] ‑ [57].

[14] JFB v The State of Western Australia [2024] WASCA 41.

[17] LYN v The State of Western Australia [2019] WASCA 45.

[18] JYL v The State of Western Australia [2021] WASCA 222.

[19] KMB v The State of Western Australia [2010] WASCA 212.

[20] ERA v The State of Western Australia [2013] WASCA 163.

[21] CGF v The State of Western Australia [2023] WASCA 187.

[22] RGT v The State of Western Australia [2017] WASCA 120.

[23] Coulter v The State of Western Australia [2019] WASCA 215.

[24] AAE v The State of Western Australia [2024] WASCA 35.

[27] SAL v The State of Western Australia [2021] WASCA 192; (2021) 292 A Crim R 440.

[28] So, too, such cases as B v The Queen [2002] WASCA 236; SCN v The State of Western Australia [2017] WASCA 138; and JTR v The State of Western Australia [2023] WASCA 131.

[30] Coutts v The State of Western Australia [2023] WASCA 38 [93] ‑ [95].

[31] VIM v The State of Western Australia [2005] WASCA 233; (2005) 31 WAR 1.

[32] The State of Western Australia v Prince [2011] WASCA 22.

[33] JJR v The State of Western Australia [2018] WASCA 51; (2018) 272 A Crim R 209.

[34] The State of Western Australia v BKJ [2018] WASCA 136.

[35] GHK v The State of Western Australia [2014] WASCA 19; (2014) 238 A Crim R 178.

[36] GMS v The State of Western Australia [2009] WASCA 107.

[37] EXF v The State of Western Australia [2015] WASCA 118.

[38] MMC v The State of Western Australia [2012] WASCA 187.

[39] LJH v The State of Western Australia [2016] WASCA 155; (2016) 261 A Crim R 355.

[40] MAS v The State of Western Australia [2012] WASCA 36.

[41] ARK v The State of Western Australia [2014] WASCA 45.

[42] AIM v The State of Western Australia [2014] WASCA 155.

[43] CJF v The State of Western Australia [2012] WASCA 69.

[44] KSN v The State of Western Australia [2017] WASCA 156.

[45] SG v The State of Western Australia [2013] WASCA 236.

[46] NQB v The State of Western Australia [2024] WASCA 93.

[47] The State of Western Australia v AHD [2021] WASCA 13.